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Exam Cheat Sheet – Chapter 2 – DUTY OF CARE Negligence - 3 Elements Negligence means more than heedless or careless conduct, whether in omission or commission – see Lochgelly Iron and Coal Co Ltd v McMullan Duty of Care 1. Reasonable foreseeability of a real risk that the injury of the kind sustained by the plaintiff...or by a member of a class which included the plaintiff 2. Proximity between the parties with respect to the defendant’s act or omission and the plaintiff’s injury 3. No statutory or common law rule precluding a duty of care Breach of the duty 1. Degree of foreseeable risk created by the defendant’s conduct - S 5B(1) and s 5B(2) (Negligence Calculus) 2. Reasonableness or otherwise of the defendant’s response to the risk Causation 1. Factual Causation - Section 5 C(1) - But for test 2. Scope of Liability DUTY OF CARE  An obligation imposed on a person to take reasonable care to ensure that they do not cause another person to suffer harm. Duty is frequently determined by reference to established categories - see Rogers v Whitaker  The current approach is to refer to reasonable foreseeability of harm (a necessary but not sufficient determinant of duty: Chapman v Hearse  A duty to take reasonable care has been said to arise from (1) reasonable foreseeability of a real risk of injury of the kind sustained by the plaintiff … or by a member of a class which included the plaintiff; (2) proximity; and (3) no rule precluding duty. – see Jaensch v Coffey NEIGHBOUR PRINCIPLE – see Donoghue v Stevenson D owes a duty of care to neighbour, person who is so closely and directly affected by the Ds conduct that the D, when considering that conduct, ought reasonably to have that person in mind. The neighbour principle, the foundation of the modern law of negligence. Two main issues: (1) reasonable foreseeability of acts being likely to injure : reasonable foreseeability (2) persons who are so closely and directly affected by my act: proximity REASONABLY FORESEEABLE - Ordinarily, properly, or fairly able to be anticipated. When harm or injury is reasonably foreseeable as in ‘not unlikely’, a duty of care may be owed to the person at risk. REASONABLE FORESEEABILITY  A test at common law in determining the existence of a duty of care, breach of duty of care, and remoteness of damage – see Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd  Duty Of Care - whether a risk of harm of the same general character to the plaintiff or to a class of persons of which the plaintiff was a member was reasonably foreseeable. Such a risk may be reasonably foreseeable if it was ‘not unlikely’ to occur: Chapman v Hearse (1961) 106 CLR 112 .  Breach Of Duty Of Care - the manner in which the injury occurred or eventuated. It may be reasonably foreseeable as long as it was not ‘far-fetched or fanciful’: .  The risk must be assessed prospectively, not with hindsight in the light of the risk that actually occurred: Vairy v Wyong Shire Council

The same applies under the Civil Liability Acts: Adeels Palace Pty Ltd v Moubarak These statutes add further requirements that the risk of harm must have been known or ought to have been known by the defendant; be not insignificant; and be one which a reasonable person would take precautions against  At common law, the test of reasonable foreseeability in relation to remoteness of damage, is concerned with the type of injury suffered by the plaintiff PROXIMITY  So closely and directly affected by their actions that the defendant ought to have them in contemplation.  Must be a sufficient closeness between the plaintiff and defendant before it can be established that a duty of care exists  Three types of proximity exist:  1. physical proximity (in the sense of space and time between the person or property of the plaintiff and that of the defendant);  2. circumstantial proximity (such as the relationship between employer and employee, critical factors being an assumption of responsibility by the employer and reliance by the employee); and  3. causal proximity (in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained): Sutherland Shire Council v Heyman (1985) 157 CLR 424 ; 60 ALR 1. ESTABLISHED CATEGORIES FOR DUTY OF CARE OWED  owed where there is an established category of relationship between P & D  always Reasonable Foreseeability due to the nature of the relationship, any kind of carelessness of D might cause damage to P  law has deemed that a Duty of Care will always be owed in these circumstances.  Manufacturer and consumer - A manufacturer owes a consumer a duty of care- prevent injuries where it is reasonable foreseeable they would use the manufactured goods – see Donoghue v Stevenson  Occupier of land -Occupier of land owes a duty of care to a person entering their land in respect of physical injuries arising from the condition of the premises – see Australian Safeway Stores v Zalenzna  Employers to their employees - Employers owe their employees a duty of care -safe system of work, safe plant and equipment, and competent staff – see McLean v Tedman  Partners in employment – senior officer/constable – see New South Wales v Fahy  Road Users - see Imbree v McNeilly (Passengers) Bourhill v Young (Road users)- Drivers owe a duty of care to passengers and other road users. Use proper care and not cause injury  Persons and Authorities in Control of Others - school authorities, parents of young children, and prison authorities - Smith v Leurs  Professionals and clients - between a professional and their client – see Groom v Crocker Professionals/ Solicitors owe a duty of care to their clients - Immunity advocates - no enforceable duty of care owed by barristers to their clients in re: conduct of proceedings– see D’Orta – Ekenaike v Victoria Legal Aid.  Doctors/ medical workers owe a duty of care to patients - To provide the ordinary skill of a doctor in diagnosis, treatment and advice – see Rogers v Whitaker

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Chapter 3 – BREACH OF DUTY DETERMINING WHETHER A DEFENDANT HAS BREACHED A DUTY OF CARE 2 ELEMENTS: a) What is the degree of foreseeable risk created by the defendant’s conduct; and – See Section 5B(1) and S 5B(2) (Negligence Calculus) (b) The reasonableness of the defendant’s response to the foreseeable risk.

- see Blyth v Birmingham Waterworks Co [1856] 56 ER 1047 The Risk was not insignificant – Was the risk not insignificant? Remember the use of the double negative is intentional See Ipp Report In relation to breach of duty of care, the test is concerned with the manner in which the injury occurred or eventuated. It may be reasonably foreseeable as long as it was not ‘farfetched or fanciful’: Wyong Shire Council v Shirt (1980) 146 CLR 40 ; 29 ALR 217 . The risk must be assessed prospectively, not with hindsight in the light of the risk that actually occurred: Vairy v Wyong Shire Council (2005) 223 CLR 422 ; (2005) 221 ALR 711 ; [2005] HCA 62 . GENERAL PRINCIPLES 5B CIVIL LABIALITY ACT (WA) 2002 Section 5B(1) of the Civil Liability Act (Criteria to be applied in determining reasonable foreseeability of risk):  The risk was foreseeable  The risk was not insignificant  A reasonable person in the person’s position would have taken precautions S 5B(1) and S 5B(2) (Negligence Calculus): 5B(1) relates to reasonable foreseeability of risk.  A person will be excused from liability, except where the risk was foreseeable, not insignificant and precautions would have been taken by a reasonable person. 5B(2) relates to setting the standard of care of a reasonable person.  Note the list of factors is not exclusive and is a “negligence calculus”, involving a balancing process. Wyong Shire Council v Shirt (1980) 146 CLR 40 ; 29 ALR 217.  The risk was foreseeable  The ‘shirt calculus’  Provides that an event or action is foreseeable unless it is ‘far-fetched or fanciful’ it is far-fetched, a reasonable person ignores it altogether (although it is imaginable as a possible occurrence)  If it isn’t far-fetched, a reasonable person at least considers taking precautions against it NEGLIGENCE CALCULUS  factors considered in whether a duty of care has been breached and whether the standard of care of a reasonable person maintained.  factors include: the likelihood of injury or damage occurring; the gravity of the possible harm; the practicability of taking precautions against the risk (including the cost of avoiding the risk); and the social utility of the particular activity giving rise to the risk: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 ; 120 ALR 42.  factors are balanced out before response of the reasonable person placed in the defendant’s position can be established as a question of fact: Wyong Shire Council v Shirt (1980) 146 CLR 40 ; 29 ALR 217.  The calculus factors have now been given statutory form in most Australian jurisdictions. THE PROBABILITY THAT HARM WOULD OCCUR IF CARE WERE NOT TAKEN  Swinton v The China Mutual Steam Navigation Co - “The measure of care increases in proportion with the danger involved.”

Bolton v Stone - “… the test to be applied is whether the risk of damage to a person … was so small that a reasonable person in the position of the appellants, considering the matter from a point of safety, would have thought it right to refrain from taking steps to prevent the danger.”  Romeo v Conservation Commission of NT - “… it is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against.”  RTA of NSW v Dederer - “The magnitude of the risk was grave, the probability of that injury occurring was low (due to no one else being injured). THE LIKELY SERIOUSNESS OF THE HARM  The degree of care depends upon the probability of the risk happening and the seriousness of the potential damage if an accident does occur.  Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 - note the concept of dangerousness in determining the standard of care  Paris v Stepney BC [1951] AC 367 – also known as Paris Principle - risk was fraught with much graver consequence for the plaintiff THE BURDEN OF TAKING PRECAUTIONS TO AVOID THE RISK OF HARM  The plaintiff must show that a reasonable person in the position of the defendant would have taken steps to avoid the harm, and that it was reasonably practicable for the defendant to take precautions.  A reasonable person may foresee a risk of injury but still decide to do nothing about it – see Wyong Shire v Shirt  Apology is not an admission of liability – see section 5AH Civil Labiality  Caledonian Collieries Ltd v Speirs - “Even drastic measures are within the limits of reasonable care depending on the likelihood and gravity of risk.” THE SOCIAL UTILITY OF THE ACTIVITY THAT CREATED THE RISK OF HARM  Rhodes v Lake Macquarie City Council -Council was not negligent because, native trees have a ‘social utility’ and general policy to retain native trees.  E v Australian Red Cross Society -defendants were negligent in failing to introduce testing that would have determined that the concern for contamination outweighed the difficulties. OTHER FACTORS Romeo v Conservation Commission of NT– “soft factors” -environmental factors have been considered when looking at certain cases and the standard of care. THE REASONABLE PERSON  A “hypothetical person” (King v Philips [1953] 1 QB 429; a person using “ordinary care and skill”, a person of “ordinary prudence”.  An objective test, but which also contains an element of subjectivity.  To what extent should the reasonable person include characteristics which are common to that of the particular Defendant?  The court may consider age, fitness, health, intelligence, gender and ethnicity o McHalev Watson - Minors - “It is the standard to be expected of a child, meaning an ordinary child of comparable age … not what is expected of an adult …”  Old age, physical and mental infirmities- less clear on SoC. o Adamson v MVIT -insanity was not relevant in determining the standard of care of a reasonable person

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o o Scholz v Standish [1961] SASR 1- When a person is suddenly and without warning, thrown into a critical situation, due allowance should be given for this.  Knowledge of acts and surrounding circumstances o WA v Watson - Held If a reasonable person could not be expected to know something, they may be expected to obtain and follow expert advice.  Professional knowledge o Bolam v Friern Hospital Management Committee - Bolam principle – The law imposes the duty of care; but the standard of care is a matter of medical judgement. o “A doctor is not negligence if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.” o Rogers v Whitaker (1992) 175 CLR 479 - Bolam principle may be applicable in cases of diagnosis or treatment but not involving the provision of advice or information from doctor to patient. CIVIL LIABILITY ACT 2002 - 5PB Standard of care for health professionals Approach in WA differs - does not have general professional provisions only has provision for health professionals. 2 statutory exceptions in relation to section 5PB:  The first exception is set out in 5PB(2). The Rogers v Whitaker test survives in WA in relation to conduct which relates to informing a patient of medical risks associated with proposed treatment.  The second exception is found in Subsection 4. A court will not be bound by a peer’s views as to the reasonableness of a Defendants conduct if the court forms the opinion that the conduct was so unreasonable that no reasonable practitioner in the Defendants position could have acted that way. The exception reflects common law developments in the UK since Bowlum. QUESTIONS OF FACT VERSUS QUESTIONS OF LAW  Matter of law are determined by judges and matters of fact are normally for juries.  The distinction is important because findings of law by a superior court are binding on a lower court however findings of law can be appealed without leave. Findings of fact have no precedential value (theoretically) and can normally only be appealed with leave of the court.  Qualcast (Wolverhampton) Ltd v Haynes - held that the question of whether the D should have directed the P to wear the protective gear was a question of fact not law and a duty of an employer will vary with the circumstances. HThe question of what reasonable care demanded was a question of fact.  Sydney City Council v Dell’Oro - Must be cautious not to make particular findings of fact rules of law WHERE THERE IS NO DIRECT PROOF OF BREACH  Holloway v McFeeters (1956) 94 CLR 470 o llustrates the problem. Leading case on sufficiency of evidence.

o The court held that where direct proof is not available, it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference. “All that is necessary is that, according to the course of common experience, the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant’s negligence.” RES IPSA LOQUITUR  (“the thing speaks for itself”) – slip & fall cases  Does not make out a case of negligence, but it may produce prima facie evidence of negligence. Anything that is merely a prima facie assumption can be rebutted.  D produce evidence of cause of accident; o if not inference of negligence is sufficiently strong o if yes court must decide between the evidence  Ultimately the effect of res ipsa loquita depends on the strength of the inference that can be drawn from the known facts.  Scott v London & St Katherine Docks Co o “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such that as in the ordinary course of things does not happen if those who have the management use reasonable care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”  Schellenberg v Tunnel Holdings Pty Ltd – held 3 essential elements are: o there is no knowledge of the occurrence that caused the injury o that the occurrence was of such a kind that it does not ordinarily occur without negligence, o that the instrument or agency that caused the injury was under the control of the defendant.  To succeed in res ipsa loquita it can be said that the P must show precise evidence to define the immediate cause of occurrence as being of a class which does not ordinarily happen if those who have the management use proper care. If P leaves res ipsa loquita to speak for itself without any lateral argument, P will usually fail. May apply even if the court remains unsure of what exactly happened. Once the cause of the accident has been established, the doctrine has no operation. Chapter 4 – FACTUAL CAUSATION CAUSATION  Causation is concerned with establishing that there is a sufficient connection in law between the defendants conduct and the loss or injury suffered by the Plaintiff which is compensable at law.  Two Elements: o Did the Defendants negligence cause the injury of damage suffered by the Plaintiff? (Attributing responsibility to someone):  Remoteness – are the Plaintiff losses or injuries too remote a consequence on the Defendants breach. (Determines not just the extent of injury but also whether the action will succeed at all) o Damage – Plaintiff must have suffered a compensable injury or loss CLA – SECT 5C

s5C CLA sets out the test for causation. S5C(1) divides the determination of whether negligence caused particular harm into two elements, factual causation and scope of liability.  These are separate and distinct issues.  Breach of duty of care needs to be establish and must be the cause of the harm that has occurred – s5C CLA  Whether or not 5C(2) is to be engaged must depend on to what extent established principles, countenance, departure from the but for test of causation.  Common law had already accepted that the but for test was not always a sufficient test of causation.  S5C(1)(a) informs us that the necessary connection for factual causation, through the but for test will be applied in all by the undefined group of appropriate cases contemplated by s5C(2) – see Adeels Palace Pty Ltd v Moubarak, Strong v Woolworths & Department of Housing and Works v Smith ‘BUT FOR’ TEST  Common law but for test is applied by the CLA in s5C(1)(a).  Examines whether the Plaintiff injury or loss would have been suffered but for the Defendant negligence.  compare what actually happened with what might hypothetically have happened and consider possibilities  not very good at distinguishing between the significance of events or distinguishing between multiple sufficient causes o see March v Strumare – “The ‘but for’ test applied as a negative criterion of causation, has an important role to play in the resolution of the question … the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff’s injury.”  Tabet v Gett “The ‘but for’ test is regarded as having an important role in the resolution of … causation, although more as a negative criterion than as a comprehensive test.”  Barnett v Chelsea and Kensington Hospital Management Committee - ‘The plaintiff has failed to establish, on the balance of probabilities, that the death of the deceased resulted from the negligence of the defendants. My view being that had all care been taken, still the deceased most likely would have died.”  March v E & MH Stramare Pty Ltd - “The ‘but for’ test applied as a negative criterion of causation, has an important role to play in the resolution of the question … the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff’s injury.” NECESSARY CONDITION  req...