Breach of duty - Lecture notes 1-3 PDF

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Breach of duty of care notes...

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Breach of duty

Key Cases Vaughan v Menlove Blyth v Birmingham Waterworks Co Wyong Shire Council v Shirt Bolton v Stone Shaw v Thomas The "Wagon Mound" Paris v Stepney Borough Council Zhi Ming Jiao v NSW Romeo v Conservation Commission of the NT E v Australian Red Cross Society Woods v Multi-Sport Holdings RTA NSW v Dederer Thomson v Woolworths Imbree v McNeilly Jones v Manchester Corporation Carrier v Bonham Sparks v Hobson South Western Sydney Local Health District v Gould Zhang v Hardas

Problem Q tips

Outline what YOU think a reasonable person would have done to illustrate how the subject breached their duty Helps with causation ie. did failure cause the damage? If they had done X, would the damage still have occurred? Always start with s 5B DO NOT start with the common law Might be good to justify answer with reference to aim of tort law — to redress the P, not punish the D When dealing with Rogers v Whitaker in relation to medical negligence, note that therapeutic privilege and necessity are limits on the Rogers principle.

Overview Breach of duty is a question of fact ie. what is the standard, and have they fallen below that standard? Finding of breach is not binding on other courts Finding of fact can only be overturned if 'no reasonable basis'

How does a court determine breach? Classic test given in Blyth v Birmingham Waterworks Co Vaughan v Menlove also important

Reasonable person (objective) test In the position of the defendant at the time, what would a reasonable person have done?

Forseeability In context of presence of duty, foreseeability relates to whether harm to the P or class which P belongs to reasonably foreseeable?

In breach, dealing with whether the risk of injury was reasonably foreseeable? Can't be far-fetched or fanciful

Division 2 CLA Essentially codifies the Shirt analysis sub-s (2) = prescriptive, but not exhaustive list

'not insignificant' is a slightly more demanding standard than 'not far-fetched or fanciful'.

Balancing In Bolton v Stone balanced low probability of risk with large expense to mitigate risk to find there was no breach Essentially balancing the risk with what the reasonable person would have done See Wyong v Shirt at [47] per Mason J

Temporal considerations Generally breach is a forward thinking inquiry What about where facts occurred a long time ago (e.g. understanding on science different)

Must consider the position of the P & D at the time. There is a famous Lord Denning quote on this in the reading guide

Obvious risks and voluntary risky activities Expectation that P will take care of their safety Question of fact! Is the risk obvious? The obviousness of risk goes to breach, not existence of duty 'Obviousness' could work against or for the P depending on the facts E.g. the risk was obvious so P should have taken more care; or the risk was obvious so D had time to rectify it NOTE: Kirby J's comment in Romeo regarding obivous risk was specific to the facts of that case! NOTE: Div 4 CLA

Modification of standard for learners? Imbree v McNeilly (overruling Cook v Cook) In Cook, learner driver held to the reasonable standard of a learner driver, not an experienced driver Overruled in Imbree Can't change standard depending on who P is (and therefore their knowledge of the skill level of D) Contributory negligence could be a factor — 'you knew of the increased risk'

Jones v Manchester Corporation Surgeon held to standard of ordinary reasonable surgeon In Jones, standard of what would an ordinary qualified anaesthatist do? But in Jones, hospital also found negligent for failing to supervise

Mental illness Carrier v Bonham

No adjustment made for mental illness because of variability of its affects Cannot set a standard for the 'ordinary mentally ill person'

Childhood McHale v Watson

Standard = reasonable child of the same age Don't take into account the subjective maturity, intellect etc. of the child Compared to mentally ill person, not something we all go through, so more suitable to an 'adjustment'. Can be applied consistently.

Community/industry standards Woods v Multi-Sport Holdings Mercer v Commissioner for Road Transport and Tramways

Industry-wide practices can be unreasonable Just because everybody is doing it doesn't make it right

Professional negligence Standard of care professional held Primarily medical negligence cases

Well-established duty between healthcare professionals and patients — Rogers v Whitaker Failure to obtain valid consent = action in trespass Failure to disclose risk information = action in negligence

Is there a logical basis?

Is the position defenceable?

Bolam approach of 'responsible body of medical opinion' not universally applied In non-disclosure of risk cases has been entirely discarded in favour of Rogers v Whitaker approach

Section 5O

Section 5P means s 5O does not apply where failure to warn of risk in respect of death or injury In these cases, Rogers v Whittaker applies

Where s 5O does apply, it in essence reinstates Bolam Bolam always still applied, but it was a subsidiary consideration (it wasn't conclusive) Onus of defendant to prove they were acting in a manner consistent with s 5O Not technically a defence

What does 'widely accepted' mean?

Question of degree Sufficiently diverse or numerous group? Is there literature? Does not need to be universally accepted to be widely accepted Widely accepted in Australia Doesn't need to be throughout Australia, just widely accept in Australia

See 35 mins onwards of Topic 9 Part 3 lecture if medical negligence problem...