Lecture note - negligence summary: breach PDF

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Negligence Summary: Breach...

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Negligence 2. Breach of Duty of Care CLA – Section 9 Considering reasonable foreseeability at breach. A consideration of, would a hypothetical person in the position of the defendant have reasonable foreseen a risk of injury of the type that occurred. Reasonable foreseeability is not from the perspective of D, it’s from the perspective of a reasonable person. If the risk of injury was reasonably foreseeable to this reasonable person, would the reasonable person have acted differently to the defendant as a consequence of this foreseeable risk. If the hypothetical person would not have acted any differently, then there has been no breach. If the hypothetical person would have acted differently in view of the reasonable foreseeable risk then there has been a breach of duty. The American approach at breach is the calculus of negligence (set out in section 9.2. CLA) Standard of Care It makes sense to consider the required standard of care to consider whether a breach occurred. There is an obligation on the defendant to take reasonable care (not strict liability).

Case

Facts

Wyong Shire Council v Shirt

P went waterskiing in lake controlled by D, the local council. There were signs at the lake about the depth and where to waterski at the lake. The placement of the signs was confusing. P fell of the skis into shallow water and received spinal injuries. The fact that the council owed a duty of care was not in question.

Manley v Tow-truck driver hit a drunk Alexand pedestrian lying on the road. er

Question for the Court The question for the court was, did D breach their duty to P.

Significance

Relation to CLA

Justice Mason said in deciding whether or not there has been a breach of duty of care, the tribunal of fact must first ask, whether a reasonable person in D’s position would have foreseen that his conduct involved risk of injury to the plaintiff or to a class of plaintiff’s, which included the plaintiff. If the answer is in the affirmative, it is for the tribunal of fact, to determine what a reasonable person would do by way of response to the risk.

Did a breach occur?

‘The reasonable standard of care that a driver must exercise requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle, in time to

COMMON LAW POSITION BEFORE CLA. The test used in Wyong Shire Council v Shirt for reasonable foreseeability is that the risk was not ‘farfetched or fanciful’ then it was reasonably foreseeable. This was too broad. Under section 9.1.b) the risk was not insignificant  this meant that there must be a higher probability of the risk of injury than required by common law. Refer to section 9.1.c.

Imbree v McNeill y

Neindorf v Jankovic

D held a garage sale at her home. D placed articles for sale on a table on her concrete driveway. P tripped on a crack in the driveway and hurt herself. P sued D for negligence.

McHale v Watson

D was a 12 year old boy and was playing with other children. P was years old. D had a metal spike which he threw at a post which rebounded and hit P in the eye, badly injuring her. D suffered from schizophrenia and jumped in front of a bus to commit suicide. P, the bus driver, developed a psychiatric illness due to the incident. P sued D for negligence.

Carrier v Bonham

Bolton v Stone

P was elderly and was standing across the road from a cricket ground. The batsman hit the ball out of the ground and it hit Stone on the head. The evidence was that balls being hit outside the

Does an inexperience d driver owe the same standard duty of care as an experienced driver or owed some less standard of care to both passengers and other road users. The main issue before the court was the standard of care owed by the defendant.

Is the standard of care for a 12 year old boy lower than it would be for an adult? The main issue was consideratio n of standard of care owed by a person of unsound mind. The main issue was; was the probability of risk of harm in determining

take reasonable steps to react to those events.’ This case overruled a previous case and it was found that an inexperienced driver owed the same standard of duty of care as an experienced driver.

Refer to section 9.1.c.

Refer to section 9.1.c. It was found that if looking at driveways over the nation, there would be many with cracks in them, therefore the required standard of care was mot breached. The comment was made that if property is used for commercial reasons than there could be a higher standard of care required. Refer to section 9.1.c. It was found that a 12 year old boy does owe a lower standard of care but it was still to be determined what a reasonable 12 year old boy would have done in that situation. It was concluded there was no breach. Refer to section 9.1.c. The QLD court found that a person of unsound mind is to be judged by the standard of the ordinary reasonable person and doesn’t owe a lesser standard of care.

The House of Lords determined there had been no breach. The test applied was the test of probability of harm; whether the risk of damage to a person on the road was so small that a reasonable person in the position of D

Refer to section 9.2.a. Section 9.2. In deciding whether a reasonable person would have taken precautions against a risk of harm, the court

Paris v Stepney Borough Council

Caeldoni an Colliers Ltd v Spiers

grounds was an irregular occurrance.

whether or not there had been a breach.

P worked as a mechanice and had no sight in one eye. One day while working he was using a hammer to loosen a bolt. He wasn’t wearing protective eyeglasses and a bit of metal flew into his eye, blinding him. Because he had already lost the sight in one eye, there was a greater risk of serious harm. Colliers, the D owned a private railway line which crossed a public road. Some carriages broke loose and approached the road, out of control. P was hit by the carriages and killed. P’s estate sued D in negligence. It was found that catchpoints could have been installed and if they had they would have prevented the breakaway of the carriages, a couple of weeks after the accident, they were installed.

Should the employer have taken extra care because of magnitude of the risk?

The issue before the court was in relation to burden of precautions.

considering the matter from a view of safety would have thought it right to refrain from taking steps to prevent the danger. This is not a question of law but of fact and to what degree. The court concluded that extra care should have been taken by the employer because of the seriousness or gravity of the harm that could of resulted.

is to consider; a) the probability that the harm would occur if care were not taken. Section 9.2.b. b) the likely seriousness of the harm

Burden of precautions weighs the risk of probability of harm versus the expense of putting precautions in place. Because the cost of the catchpoints were relatively inexpensive and the risk of someone coming to harm if the carriages broke away was high, the court ruled in favour of P and it was found D had breached their duty.

Section 9.2.c. c) the burden of taking precautions to avoid the risk of harm.

It is thought that in society we need rescue teams, and this is taken into account in deciding whether there is a breach of duty of care in incidents arising from emergency services.

Section 9.2.d. d) the social utility of the activity that creates the risk of harm.

Res Ipsa Loquitor In some situations, there can be found no evidence of a breach of duty of care. However, if the defendant was in control of the situation and the plaintiff was injured when normally, due to proper management and care they wouldn’t have been injured. In these circumstances res ipsa loquitor is applied and it is assumed that D was negligent because there is no other explanation of P’s injuries. Shellenburg v Tunnel Holdings P was an employee of D. P was using machinery, a grinder attached to a hose. One day P was using the grinder and hose separated and hit him in the face, injuring him badly. P sued D for negligence. Trial judge concluded that the actual hose separating

from the grinder caused the injury. The High Court found that once the cause has been identified Res Ipsa Loquitor does not apply because once the cause has been found, it is then for P to prove that there has been a breach because the machinery had not been properly maintained. Therefore the question was, had the employer effectively maintained the equipment? If you have sufficient evidence as to what went wrong, then you have too much evidence to say there must be negligence because there is no other explanation. Is Res is raised and the court allows its use, then you do not need to consider breach, cause, remoteness etc....