TORTS FULL COURSE SUMMARY AND READINGS Breach f duty 1. General principles fr establishing breach f duty Did the defendant fall belw a standard duty f care which a reasnable persn wuld hld? A breach f duty ccurs when the cnduct f the defendant des nt meet the standard f care f the reasnable persn. The first step therefre is t determine the standard f care. This invlves answering the questin wh is the reasnable persn in the circumstances? Putting it anther way, breach f duty ccurs when the plaintiff prves that the defendant s cnduct fell belw the required standard f care Standard f care is determined by cmparing the actins f the defendant t that f a reasnable persn in the same psitin as the defendant if the defendant s actins d nt match up t thse f the reasnable persn, there is a breach When determining wh the reasnable persn is, the test used is an bjective ne f the reasnable persn in the circumstances with n allwance fr the defendant s individual idisyncrasies... The bjective standard als extends t the defendant s finances. The test is that f a defendant with reasnable resurces Len Green, The Negligence Issue Cmmn law 1
Wyng Shire Cuncil v Shirt (1980) In deciding whether there has been a breach f the duty f care the tribunal f fact must first ask itself whether a reasnable man in the defendant s psitin wuld have freseen that his cnduct invlved a risk f injury t the plaintiff r t a class f persns including the plaintiff. If the answer be in the affirmative, it is then fr the tribunal f fact t determine what a reasnable man wuld d by way f respnse t the risk. The perceptin f the reasnable man s respnse calls fr a cnsideratin f the magnitude f the risk and the degree f prbability f its ccurrence, alng with the expense, difficulty and incnvenience f taking alleviating actin and any ther cnflicting respnsibilities which the defendant may have Statute Civil Liability Act 2002 (NSW) SECTION 5B (1) A persn is nt negligent in failing t take precautins against a risk f harm unless: a. The risk was freseeable (that is, it is a risk f which the persn knew r ught t have knwn), and b. The risk was nt insignificant, and c. In the circumstances, a reasnable persn in the persn s psitin wuld have taken thse precautins (2) In determining whether a reasnable persn wuld have taken precautins against the risk f harm, the curt is t cnsider the fllwing (amngst ther relevant things): a. The prbability that the harm wuld ccur if the care was nt taken b. The likely seriusness f the harm c. The burden f taking precautins t avid the risk f harm d. The scial utility f the activity that creates the risk f harm Once the freseeable risk f injury [t the plaintiff r a class f persns including the plaintiff] is established, the curt must determine what the respnse f a reasnable persn t the risk wuld be in the circumstances In rder t determine what the reasnable persn s respnse wuld be the curt is required t take int accunt a range f factrs which we smetimes term the calculus f negligence The nt insignificant requirement (b) was intended t be a mre stringent apprach than cmmn law: sme cases just treat it the same as nt fanciful r far-fetched eg Dubleday v Kelly Shaw v Thmas: the requirement is mre demanding than Shirt, but nt very much. s 5B (1) (a) - same as Shirt (b) - nt far-fetched r fanciful Shirt 2
(c) - Implied as part f the Shirt test Generally accepted that s5b, especially s5b(2) des nt significantly alter the cmmn law Frseeability In Australia, frseeability stems frm Overseas Tankship (UK) Ltd v Miller Steamship C Pty Ltd ( Wagn Mund N 2) [1967] 1 AC 617 in which the Privy Cuncil rejected the idea that a remte risk was nt reasnably freseeable emphasised that it is nt necessary fr defendants t fresee the precise manner in which the injury is inflicted, as lng as a cnsequence f the same general character was reasnably freseeable Wyng Shire Cuncil v Shirt (1980) 146 CLR 40 Shirt suffered quadriplegia after waterskiing and hitting his head n the bttm f a lake He argued that he was misled by a Deep Water sign erected by a cuncil engineer the sign was actually meant fr swimmers, and referred t a different sectin f water Shirt succeeded at trial, NSW Curt f Appeal and the High Curt High Curt: The frseeability f risk and the prbability f it are nt related in law, except that by saying that the risk is freseeable we are implying that the risk f injury is nt far-fetched r fanciful While the greater the degree f prbability f the risk the mre readily it will be perceived t be a risk, it des nt fllw that the risk which is unlikely t ccur is nt freseeable Frseeability is based n the facts f each case and the jury r judge must decide n a case by case basis Dubleday v Kelly [2005] NSWCA 151 Plaintiff (Kelly) was injured when she attempted t rller skate n trampline at the defendant s huse, sustaining serius injuries She was unsupervised at the time as they were still asleep 3
Curt: Held that what was t be cnsidered is fresight in mre general terms f risk f injury There was a reasnable freseeable risk f injury if the respndent were t use the trampline at all withut adult supervisin The way in which the injury was incurred did nt have t be freseeable: what is t be cnsidered is fresight in mre general terms f risk f injury t a child r seven if she were t use the trampline withut adult supervisin The precise chain f events des nt have t be freseeable, the risk f injury has t be freseeable in a general way Appeal dismissed Vairy v Wyng Shire Cuncil (2005) 223 CLR 422 Vairy suffered serius injuries after diving int shallw water A similar injury had ccurred at the same place 15 years befre, with the cuncil s knwledge The trial judge fund there t have been a breach f duty t take care t prtect plaintiff frm unnecessary risk f physical harm The NSW Curt f Appeal fund that the risk shuld have been bvius, hence there was n breach f duty Vairy appealed t the High Curt appeal was dismissed 4-3 High Curt: The inquiry abut breach must be made lking frward, nt lking back at what happened t that particular plaintiff The questin f breach must be apprached by the curt as lking frward frm befre the time f the incident t cnsider whether it wuld be reasnable freseeable that the injury wuld cme t pass curts are t avid falling int the trap f appraching the prblem frm the wrng directin Essentially, just because it had happened befre, this did nt necessarily mean that it was freseeable that it wuld reccur Nt insignificant risk 4
The Ipp Reprt stated that the idea f nt insignificant is intended t split the difference between Shirt s far-fetched r fanciful and the perceptin f a substantial risk Ipp Reprt distinguished between risks that are nt far fetched r fanciful and thse that are nt insignificant nt insignificant indicates risks f a higher prbability than thse that are nt far-fetched r fanciful Reasnableness A nrmative judgement, invlving the balancing f the plaintiff and defendant s interests it is nt a value-neutral prcess In Vairy v Wyng Shire Cuncil, Gleesn CJ and Kirby J held that reasnableness depends n circumstance it cannt be factrised further int any ther statements f principle it is impssible t state cmprehensively the circumstances in which reasnableness requires a warning 5
2. Calculus f negligence Refers t cnsideratins which the reasnable persn is expected t take int accunt in respnding t freseeable risk The general apprach Rme v Cnservatin Cmissin f the Nrthern Territry (1998) 192 CLR 431 Rme, aged 16, was drinking when she decided t walk up what appeared t be a path t the tp f a cliff 6
She was s intxicated that she fell frm the tp f the cliff as a result f walking thrugh a gap in vegetatin the curt cncluded she must have thught was the cntinuatin f the path The six and a half meter fall caused high level paraplegia She sued the cmmissin respnsible fr that area f the Nrthern Territry High Curt: The issues faced by the curt were: The duty f the cmmissin in regard t prtecting the likely patrns f the idea The balance between the prbability f injury, the gravity f an injury and the burden f taking precautins The duty f the curt in uphlding the abve It was reasnable fr the cmmissin t fresee a range f ptential visitrs, which wuld include the yung and the drunk But this cnsideratin, including the likely gravity f any injury, must be balanced against the bvius nature f the risk in this case (massive cliff) and the burden f prviding either fencing r a sign at every lcatin. Kirby J: the curts have bth the authrity and respnsibility t intrduce practical and sensible ntins f reasnableness that will put a brake n the mre extreme and unrealistic claims an ccupier wuld be entitled t accept that the risk f a mishap such as ccurred was s remte that a reasnable man, careful f the safety f his neighbur, wuld think it right t neglect it Need t inquire as t the scpe f the duty in the circumstances and the respnse t the relevant risk by a reasnable persn. It is quite wrng t read past authrity as requiring that any reasnably freseeable risk, hwever remte, must in every case be guarded against McHugh J: What is reasnable must be judged in the light f all the circumstances Appeal dismissed The prbability f harm In Wagn Mund (N. 2), Lrd Reid fund that Bltn v Stne (plaintiff was hit n the head by a cricket ball acrss the rad frm a cricket grund after the ball had been hit very hard and ver a 17 ft high fence) that it is nt justifiable nt t take steps t eliminate a real risk if it is small and if the circumstances are such that a reasnable man, careful f the safety f his neighbur, wuld think it right t neglect it 7
Rme and Bltn v Stne are bth examples f serius injuries ccurring in situatins where the prbability f the risk f injury eventuating was lw, althugh the likely seriusness f any eventual injury was mderate t high. Plaintiff failed in bth. Prbability cannt be judged in light f the hindsight bias ; the judgment must be made at a time prir t the plaintiff s accident, based n infrmatin available t the reasnable defendant at the time RTA v Dederer (2007) 324 CLR 330 Dederer, than aged 14, dived ff a bridge and became a quadriplegic Under legislatin, the RTA was respnsible fr the maintenance f the bridge in 1992, new standards came int frce in which the RTA was required t replace all hrizntal railings and replace them with vertical nes, which they failed t d Dederer argued that the RTA shuld have: Prvided the infrmatin n the signs that the danger was created by shifting sands beneath the bridge Mdified the flat level railing s that it culd nt frm a platfrm fr diving r jumping Remved the hrizntal railings and replaced them with vertical railings Trial judge fund RTA liable, with Dederer 25% cntributrily negligent Curt f Appeal fund fr Dederer again, but fund him 50% cntributrily negligent RTA appealed, Dederer crss-appealed High Curt: The RTA did nt we a mre stringent bligatin twards careless rad users as cmpared with careful nes Bltn v Stne: in rder that the act may be negligent there must nt nly be a reasnable pssibility f its happening but als f injury being caused in this case, while the prbability f the act ccurring was high, the prbability f injury being caused frm jumping ff the bridge was very lw The questin f whether reasnable care was exercised is t be adjudged prspectively, nt retrspectively The RTA did nt breach their duty f care as taking further precautins t prevent peple jumping frm the bridge was nt reasnable csts were nt justified and evidence was given that even if a fence arund the bridge 8
was erected, it wuldn t have stpped Dederer frm jumping ff the bridge if he had wanted t The gravity r likely seriusness f the harm Where the defendant knws f sme particular vulnerability t greater injury n the part f the plaintiff, the seriusness f the ptential cnsequences elevates the level f care required by the defendant, ntwithstanding that the prbability f injury is the same fr this individual as fr all thers The amunt f harm which may be caused varies nt nly with the vulnerability f the plaintiff, but with the degree f danger arising ut f the kind f agency with which the defendant is dealing Paris v Stepney Brugh Cuncil [1951] AC 367 The plaintiff was emplyed as a fitter in the defendant s garage the emplyer knew he had use f nly ne eye When he was using a hammer t remve a blt, a chip f metal entered his gd eye, making him almst ttally blind He alleged that the failure t prvide gggles was a breach f the defendant s duty f care Curt f Appeal held that there was n duty t prvide gggles (reversing trial decisin), but he succeeded in the Huse f Lrds High Curt: This case demnstrates that in situatins where the defendant knws f sme particular vulnerability t greater injury n the part f the plaintiff, the level f care required is increased, despite the prbability remaining the same The particular duty f care thus wed by the defendant t the ne-eyed man must be taken int accunt in the calculus f negligence regardless f the duty twards the fully-sighted emplyees, the emplyer has breached their duty f care in this case Lrd Nrmand: Wuld a reasnable and prudent man be influenced, nt nly by the greater r lesser prbability f an accident ccurring, but als by the gravity f the cnsequences if an accident des ccur? yes 9
Frm Mackintsh v Mackintsh: The amunt f care will be prprtinate t the degree f risk run, and t the magnitude f the mischief that may be ccasined The High Curt held in Burnie Prt Authrity v General Jnes Pty Ltd (1994) 179 CLR 520: In the case f dangerus substances r activities, a reasnably prudent persn wuld exercise a higher degree f care. Indeed, depending n the magnitude f the danger, the standard f reasnable care may invlve a degree f diligence s stringent as t amunt practically t a guarantee f safety The burden f taking precautins In rder fr the plaintiff t succeed, it must be shwn that if an alternative t the defendant s prpsed negligence is relied n (i.e. that they culd have dne smething t prevent the injury ccurring) then it must be established that that alternative culd have prevented the accident A defendant is bund t take precautins against negligent cnduct where the damage caused is cnsiderable, whether the immediate agent f the harm is the plaintiff r a third persn Wds v Multi-Sprt Hldings Pty Ltd (2002) 208 CLR 460 Plaintiff suffered 99% blindness in ne eye during a game f indr cricket rganized by the defendant and played n the defendant s premises, during which safety equipment was nt supplied Duty f care was cnceded, main issue being what steps the defendant ught reasnably t have taken t avid the risk f injury High Curt majrity fund fr defendant There was n helmet available n the market that wuld fulfil the need t prtect the face in the sprt High Curt: Gleesn CJ: The defendant is nt bund t take precautins fr bvius risk here the risk f a player being struck in the face was s bvius that reasnableness did nt require the respndent t warn players abut it Where it is claimed that reasnableness requires ne persn t prvide prtectin r warning t anther, the relatinship between the parties and the cntext in which they entered int that relatinship may be significant 10
As the plaintiff was a willing participant, and was aware f the risks, the defendant was nt negligent in failing t prvide helmets Additinally, unavailability f precautin further tilted balance twards defendant Neindrf v Junkvic (2005) 222 ALR 631 Junkvic suffered injury when she tripped ver an uneven surface in the driveway f Neindrf while attending a garage sale High Curt: The fundamental questin fr the curt was the extent t which it is reasnable t require ccupiers t prtect entrants frm a risk f injury assciated with the cnditin f the premises The unevenness f the surface n which the respndent tripped was s rdinary, and s visible, that reasnableness did nt require any actin n the part f the ccupier Kirby J dissented The scial utility f the risk creating activity E v Australian Red Crss Sciety (1991) 27 FCR 310 E cntracted AIDS fllwing a pst-perative bld transfusin E received tainted bld frm a bld transfusin and sued the Australian Red Crss fr failing t take adequate precautins Evidence shwed that n effective testing was available nly the prbability f infectin culd be reduced, and this wuld invlve the discarding f 5% f the bld supply The Full Curt f Federal Curt fund fr Red Crss bth times Curt: Wilcx J: T take int accunt the effect n the bld supply is t say that a persn in the psitin f the first and secnd respndents was entitled t give pririty t the interests f all bld users and everyne in the cmmunity is a ptential bld user ver the interests f all bld users 11