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NEGLIGENCE – BREACH OF DUTY 1.0 INTRODUCTION Assuming a duty of care is owed, a defendant is liable for negligence only if the duty has been breached. A person acts in breach of a duty of care only if their conduct is at fault (unreasonable), judged by reference to the standards of a reasonable person in his or her position at the relevant time. The time for assessing negligence is hence the time of the allegedly negligent conduct and courts should not judge the matter with the benefit of hindsight [Roe v Ministry of Health [1954] 2 QB 66]. Proof of a breach of duty requires a person: 1. To define the relevant standard of care that is required of a defendant; and 2. To prove that the defendant has breached that standard. 2.0 THE STANDARD OF CARE 2.1 At Common Law The standard of care is said to be ‘objective’, meaning that a person’s conduct is judged by reference to the standards of a reasonable person, not by reference to the defendant’s own (subjective) standards. A plaintiff’s particular idiosyncrasies, capacities and abilities (such as intelligence, health, or financial resources) are hence generally disregarded in judging what he or she should (or should not) have done. The adoption of this ‘objective’ standard of care means that legal fault is conceptually different to the idea of moral fault - a person can be liable for negligence even if she could in fact have done no better than she did, if a reasonable person in her position could and would have done better. Imbree v McNeilly [2008] HCA 40 at [9]-[10], [53]-[58], [69]-[72] The plaintiff, Paul Imbree, allowed the defendant, Jesse McNeilly, who was aged 16 years, to drive a four-wheel drive station wagon on an outback road in the Northern Territory, between Kings Canyon and Hermansburg. The plaintiff knew that the defendant had a learner's permit and that he had little driving experience. The defendant lost control of the vehicle, causing the plaintiff such severe spinal injuries. One of the issues considered in the appeal to the High Court was the relevant standard of care owed by the defendant. In particular, it considered the question whether the standard expected of him should be lower either because (a) he was inexperienced as a driver, or (b) because the plaintiff knew that he was inexperienced and was supervising him. The High Court found the defendant’s driving to have been negligent. In doing so, it overruled the previous case of Cook v Cook (1986) 162 CLR 376 (HCA), in which it had been held that a person supervising a learner driver is owed a lower standard of care on account of his knowing about the learner’s driver’s inexperience.

Gleeson CJ: Inexperience is one of many attributes that may affect a driver's ability to avoid danger. As was pointed out by counsel for the appellant, a visitor from overseas, who had never previously driven on the left side of the road, or across a desert, may be described as inexperienced if placed in the same situation as the driver in this case. Many other factors may cause impairment of driving skills, in varying degrees. The question is whether, as a matter of legal principle, there is sufficient reason to single out inexperience, or to treat the relationship between an inexperienced driver and a supervisor as modifying the ordinary, objectively expressed, standard of care. To describe a case as special, or exceptional, implies existence of a principle by which it can be recognised, and distinguished from the ordinary. The plurality reasons in Cook accepted that, as a general rule, the standard of care owed by a driver to someone who might foreseeably be injured by lack of care is objective and impersonal, and is not modified by the personal attributes of the driver, which might include age, skill, alertness, physical or mental health, sobriety or even aspects of temperament, some of which, in the case of the one driver, may alter, perhaps over a short time. This is so because the care that is reasonably required of the driver of a car is a product of the harm that can result from failure to exercise care, and because the alternative would be an infinitely variable standard, responding to the particular combination of attributes possessed by a driver at any given time. It was concluded in Cook v Cook (1986) 162 CLR 376 that, because the absence of skill, or experience, was the reason for the instruction or supervision that was undertaken, it was irrational to impose a standard of care owed by the driver to the instructor or supervisor that was not modified to take account of the lack of skill or experience. That, with respect, is not at all obvious. The factors described as special may be significant, in a given case, for issues such as the existence of a duty of care, contributory negligence, voluntary assumption of risk, or causation. Given, however, that it is accepted that the driver owes a duty to the supervisor to take reasonable care for the supervisor's safety; given the wide variability in degrees of inexperience; and given the interaction of experience, or lack of it, with other personal attributes that bear upon safe driving, it is not irrational to impose an objective standard of care rather than to attempt to adjust the standard of care to the level of experience of an individual driver. Gummow, Hayne and Kiefel JJ: A reasonable learner driver? The basic considerations of principle may be stated as follows. First, the inquiry is about the applicable standard of care. Secondly, the standard to be applied is objective. It does not vary with the particular aptitude or temperament of the individual. Thirdly, it is, and must be, accepted that a learner driver owes all other road users a duty of care that requires the learner

to meet the same standard of care as any other driver on the road. The learner may have to display "L-plates" for all other road users to see, but that learner will be held to the same standard of care as any other driver in fulfilling the learner's duty to take reasonable care to avoid injuring other road users…. Knowledge of inexperience can thus provide no sufficient foundation for applying different standards of care in deciding whether a learner driver is liable to one passenger rather than another, or in deciding whether that learner driver is liable to a person outside the car rather than one who was seated in the car, in the adjoining seat. The other passenger will ordinarily know that the driver is a learner driver; the road user outside the car can see the L-plates. Yet it is not disputed that the learner driver owes each of those persons a standard of care determined by reference to the reasonable driver. Rejection of knowledge as a basis for applying a different standard of care is required not only by the observation that knowledge of inexperience is held not to affect the standard of care owed to other passengers or other road users who observe a display of L-plates, but also by the essential requirement that the standard of care be objective and impersonal. [56] No matter whether the content of the standard of care is described as that of the "inexperienced driver of ordinary prudence" or the "unqualified and inexperienced driver (but with some knowledge of the controls of a motor vehicle) in the situation in which the [driver] was placed" there are evident practical difficulties in applying such a standard, describing the relevant comparator as the reasonable "inexperienced" driver does not sufficiently identify the content of the standard that is intended to be conveyed by use of the word "inexperienced". In particular it leaves undefined what level of competence is to be assumed in such a driver. Further, to describe the relevant comparator as "unqualified" points only to the absence of approved demonstration of adequate driving competence. Demonstration of relevant ability is beside the point. What is at issue is the definition of a standard of reasonable care, not any external recognition of attaining an ability to drive in accordance with that standard. No different standard of care The common law recognises many circumstances in which the standard of care expected of a person takes account of some matter that warrants identifying a class of persons or activities as required to exercise a standard of care different from, or more particular than, that of some wholly general and "objective community ideal". Chief among those circumstances is the profession of particular skill. A higher standard of care is applied in those cases. That standard may be described by reference to those who pursue a certain kind of occupation, like that of medical practitioner, or it may be stated, as a higher level of skill, by reference to a more specific class of occupation

such as that of the specialist medical practitioner. At the other end of the spectrum, the standard of care expected of children is attenuated. But what distinguishes the principle established in Cook from cases of the kind just mentioned is that Cook requires the application of a different standard of care to the one defendant in respect of the one incident yielding the same kind of damage to two different persons, according to whether the plaintiff was supervising the defendant's driving or not. In all other cases in which a different level of care is demanded, the relevant standard of care is applied uniformly. No distinction is drawn according to whether the plaintiff was in a position to supervise, even instruct, the defendant although, of course, if the plaintiff was in that position, a failure to supervise or instruct may be of great importance in deciding whether the plaintiff was contributorily negligent. There is no warrant for the distinction that was drawn in Cook should no longer be followed in this respect. The principle adopted in Cook departed from fundamental principle and achieved no useful result Main Principles:  The standard to be applied is objective. It does not vary with the particular aptitude or temperament of the individual. Knowledge of inexperience can thus provide no foundation for applying different standards of care.  The common law recognises many circumstances in which the standard of care expected takes account of some matter that warrants identifying a class of persons or activities as required to exercise a standard of care different from, or more particular than, that of some wholly general and "objective community ideal”. McHale v Watson (1966) 115 CLR 199 at 205-6, 210 (HCA) The defendant was boy of twelve. He threw a sharpened piece of metal, described as a dart, at a post, expecting it to stick in the post. The dart either missed the post or hit it and glanced off and hit the plaintiff, a nineyear-old girl. The defendant was held not to be liable for negligence at first instance, the judge (Windeyer J) deciding that the Court was entitled to take into account the defendant’s age in determining whether or not negligence was proven. The High Court upheld this decision. McTiernan A.C.J: There is ample authority for the proposition that in cases dealing with alleged contributory negligence on the part of young children they are expected to exercise the degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience. No Australian or English decision was cited relating to the standard to be applied where a young child is sued in negligence. The

subject, however, is discussed in several textbooks and there seems to be a consensus that the age and experience of an infant should be taken into account when considering the reasonableness of his conduct. The learned author of Salmond on Torts, 13th ed. (1961), at pp. 77, 78 said: “it would seem that in order to make a child liable for negligence, it must be proved that he failed to show the amount of care reasonably to be expected from a child of that age. It is not enough that an adult would have been guilty of negligence had he acted in the same way in the same circumstances. This, indeed, seems never to have been decided, but it would seem implied in the decisions on the contributory negligence of children. In general the principle appears to be that a minor who is incapable of forming a culpable intention or of realizing the probable consequences of his conduct is relieved from liability in those cases in which fault is essential to liability, but that wherever a liability is imposed irrespective of fault he is fully liable as a normal adult”. In Clerk & Lindsell on Torts, 12th ed. (1961), par. 157 it is stated: “by analogy with the cases concerning contributory negligence of young children it seems probable that the age of an infant defendant is relevant in torts involving negligence or malice. If the defendant is of tender years it will be a question of fact whether he is of such age that he ought to have foreseen the consequences of his act, and that malice or want of due care could reasonably be ascribed to him”. Fleming, The Law of Torts, 3rd ed. (1965), pp. 117, 118 is to the same effect: “there is no doubt that a child, whether as plaintiff or defendant, is only expected to conform to the standard appropriate for children of the same age, intelligence and experience. If unable to understand the nature and likely consequences of his actions, negligence is not attributed to him at all; but given perception of the risk, he must display the judgment and behaviour proper for a child with like attributes. Some safeguard to the public is afforded by the obligation of parents and school authorities to observe reasonable care in the supervision of children under their control. Moreover, a minor who engages in dangerous adult activities, such as driving a car or handling industrial equipment, must conform to the standard of the reasonably prudent adult; his position being analogous to that of beginners who, as we have seen, are held to the objective standard”. In the present case we are concerned with a boy of the age of twelve years and two months. He was not, of course, a child of tender years. On the other hand, he was not grown up and, according to the evidence, he played as a child. I think it was right for the learned trial judge to refer to him in common with Susan and the other playmates as young children. It cannot be laid down as an absolute proposition that a boy of twelve years of age can never be liable in negligence; nor that he would always be liable in the same manner as an adult in the case of that tort. The evidence does not suggest that the defendant was other than a normal twelve-year-old-boy. His Honour considered that the defendant, being a

boy of twelve years, did not have enough maturity of mind to foresee that the dart might glance off the post in the direction of Susan if he did not make it hit the post squarely, and that there was a possibility that he might not succeed in doing so. It seems to me that the present case comes down to a fine point, namely whether it was right for the trial judge to take into account Barry's age in considering whether he did foresee or ought to have foreseen that the so-called dart might not stick in the post but be deflected from it towards Susan who was in the area of danger in the event of such an occurrence. I think that there is no ground for disagreeing with the conclusion of Windeyer J. on this question. Main Principles:  Young children are expected to exercise the degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience. 2.2 The Civil Liability Act 2003

22 Standard of care for professionals (1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. (2) However, peer professional opinion can not be relied on for the purposes of this section if the court considers that the opinion is irrational or contrary to a written law. (3) The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. (5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service. 21 Proactive and reactive duty of doctor to warn of risk (1) A doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the following information about the risk— (a) information that a reasonable person in the patient's position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice; (b) information that the doctor knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice 35 Principles concerning resources, responsibilities etc. of public or other authorities The following principles apply to a proceeding in deciding whether a public or other authority has…. breached a duty— (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions 46 Eff

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including doctors; and it expressly allows a public authority’s resources to be taken into account in determining whether it has been negligent in the exercise of its special statutory functions. The special protection given to professionals is qualified but has increasingly been regarded as controversial. 22 Standard of care for professionals (1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. (2) However, peer professional opinion can not be relied on for the purposes of this section if the court considers that the opinion is irrational or contrary to a written law. (3) The fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent any 1 or more (or all) of the opinions being relied on for the purposes of this section. (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. (5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service. 21 Proactive and reactive duty of doctor to warn of risk (1) A doctor does not breach a duty owed to a patient to warn of risk, before the patient undergoes any medical treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the following information about the risk— (a) information that a reasonable person in the patient's position would, in the circumstances, require to enable the person to make a reasonably informed decision about whether to undergo the treatment or follow the advice; (b) information that the doctor knows or ought reasonably ...