Breach of duty of care notes PDF

Preview

Summary

Summary of breach of duty of care - negligence....

Description

BREACH

Principles for assessing whether a duty has been breached are set out in s 32 of the Civil Liability Act 1936 (SA) 32—Precautions against risk STEP ONE (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and The test: Would a ‘reasonable person’ in the defendant’s position have foreseen that his conduct involved a risk of causing some kind of damage to P that is not far-fetched or fanciful (Wyong Shire Council v Shirt) Foreseeability ≠ probability: ‘A risk of injury which is remote in the sense that it is unlikely to occur, may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable’ (Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40) If P can establish risk was foreseeable and not insignificant then we need to determine what precautions a reasonable person would have undertaken. P must particularise what precautions the defendant should have allegedly taken.

STEP TWO (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. Additional common law considerations (e) customary practices of activity that create risk (f) is there any legislation that governs the activity

When determining STEP 2 we must assess “what the reasonable response would have been by a person looking forward at the prospect of the risk of injury.” (Mulligan v Coffs Harbour City Council (2005) 233 CLR 486) PROBABILITY OF HARM Bolton v Stone [1951] AC 850: Foreseeability is not enough and the probability of the occurrence of the risk must be high enough for a reasonable man to anticipate it and take precautions against it. RTA of NSW v Dederer (2007) 234 CLR 330: The focus is on the probability of the harm, not probability of the conduct that leads to harm. GRAVITY OF HARM Paris v Stepney Borough Council (1951) AC 367: The precautions we take against harm must be with reference to the severity of the harm threatened, particular to the individual. BURDEN OF TAKING PRECAUTIONS Magnitude of the risk is balanced against the cost of taking precautions (expense, difficulty, convenience): Caledonian Collieries Ltd v Spiers (1957) 97 CLR 202 Low costs: Ware’s Taxi Ltd v Gilliham [1949] SCR 637 High costs: No breach of duty as the only way of eliminating the risk was unduly burdensome: Graham Barclay Oysters Ltd v Ryan [2002] 211 CLR 540 SOCIAL UTILITY Balance needs to be achieved between benefits of underlying conduct and the costs of removing the risk. Watt v Hertfordshire County Council [1954] 1 WLR 835: Must balance risk against end to be achieved – Lord Denning CUSTOM Was the defendant’s conduct consistent with established practice and customs of citizens carrying out similar task? Woods v Multi-Sports Holding Pty Ltd (2002) 208 CLR 460: safety requirements met customary standard therefore defendant not negligent Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580: Evidence of customary practice is relevant but not determinative if the general practice does not conform to standard of care required by a reasonable person. STATUTORY STANDARDS BALANCE ALL OF THESE FACTORS...