Lecture Week 3 - Jane Diedericks PDF

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Lecture Week 3 Did the defendant breach that duty of care? Breach  

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The 'fault' element. o Should we 'punish' the defendant? Assessment of whether the defendant responded to a reasonably foreseeable risk of harm to another person by taking the precautions that a reasonable person in their position would have taken in the circumstances existing at the time. - Davis pg. 369 Negligence is…'the omission to do something which a reasonable and, guided upon those considerations why ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.' - Alderson B, Bluth v Birmingham Waterworks Co (1856)

Establishing a breach  2 separate issues: o What is the appropriate standard of care?  Issue of law.  Usually acts as a precedent in later cases. o What happens when the standard is applied to the facts?  Issue of fact.  Usually will not be useful as a precedent, unless the facts are remarkably similar. o Facts are similar but does not mean precedent. Breach of duty - what does the CLWA say?  S42 Standard of care o For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.  (Asks the defendant to behave in the same way as a 'reasonable person.')  S43 Precautions against risk - general principles o A person is not negligent in failing to take precautions against a risk of harm unless—  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and  the risk was not insignificant; and  in the circumstances, a reasonable person in the person’s position would have taken those precautions. o In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):  the probability that the harm would happen if precautions were not taken;  the likely seriousness of the harm;

the burden of taking precautions to avoid the risk of harm; the social utility of the activity creating the risk of harm. (2 a-d, the sum of negligence, the foreseeability of negligence.) S44 Precautions against risk - other principles o In a proceeding in relation to liability for negligence—  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.   

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The CLWA - what does all that actually mean?  To interpret the legislation, we need to look at the case law.  Start by identifying the key concepts in the legislation.  Then see what the court has had to say.  Then think about whether the legislature has codified the common law, or reformed it. What is a 'reasonable person'?  Objective test - treats everyone the same.  A 'man of ordinary prudence'; 'Man on the Bondi tram'; 'takes the magazines'; 'Move the lawn in his shirtsleeves.'  Widely criticised. o In effect, the reasonable man foresees everything. o Lack of flexibility for defendants with different limitations.  Women - now 'reasonable person,' cf 'reasonable man' - real change?  Children - test finally adjusted in McHale v Watson;  Mentally ill - test not amended - see Carrier v Bonham  Physically disabled - law is variable, contingent on 'suddenness' of disability. 'The Reasonable Man'  An objective test- applied to everyone in the same way o 'Man on the Clapham Omnibus’  McGuire v Western Morning News Co Ltd o ‘Man on the Bondi Tram’  Papatonakis v Australian Telecommunications Commission o “Reasonable man of ordinary intelligence and experience”  Glasgow Corporation v Muir o “The man who takes the magazines at home and in the evening pushes the lawnmower in his shirt-sleeves”  Hall v Brooklyn Auto Racing Criticisms of 'the reasonable man'

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Ignores all characteristics of this defendant: stupid, slow witted, unimaginative, clumsy, accident-prone, poor, In practice- what a ‘reasonable man’ would do is decided by what the judge thinks a ‘reasonable man’ would do. Does the bench really reflect society?

Reasonable 'others'  Reasonable man/person.  Variations for o Children o Older people o Intellectually impaired o Physically impaired o Ill o Inexperienced Children 

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McHale v Watsono ‘Childhood is not an idiosyncrasy’- Windeyer J o ‘Ordinary child of the relevant age’- Kitto J o ‘Child... of like age, intelligence and experience’- Owen J Griffiths v Wood

The elderly   

Limited case law. Elderly may be less physically agile, but generally will understand risks, and avoid placing themselves where their decreased agility puts them at risk. Daly v Liverpool Corporation

Disability  

Mental: no reduction in standard- Carrier v Bonham Physical- car/driving matters: o Where some degree of consciousness and ability to control the car remains after the onset of the attack, the normal standard of care continues to apply. o Roberts v Ramsbottom; Leahy v Beaumont; Scholz v Standish o Waugh v James K Allen; Smith v Lord; Robinson v Glover

Inexperience 

Professional experience o If Defendant has the relevant qualifications, Standard of Care is that of ‘normally competent member of the profession’ (no allowance for inexperience)  Doctors- recognise distinctions in competence:  General practitioner/specialist;  Intern; resident; consultant;  Wilsher v Essex Area Health Authority

Learner drivers  Previously, Cook v Cook applied:

Standard ‘reasonably to be expected of an unqualified and inexperienced learner driver’. o Different from standard same learner driver owes to every other road user, and any other passengers in the vehicle. Rejected in Imbree v McNeilly: o ‘Learner driver must take the same care as that of the reasonable driver’ o

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Amateurs cf Professionals  Higher standard of knowledge and skill of professional.  General rule: ought not to undertake work which involves danger to the public, which they are not competent to perform.  Where plaintiff knows that the defendant lacks professional skill, they are not entitled to expect that level of skill in performance of the work. The tests  

What would the reasonable person have done in the defendant's position? standard of care. What did the defendant do? - breach.

Application of the standard  Did the defendant's conduct reach the required standard, or did it fall short?  The test of 'reasonable foreseeability' again o In establishing whether a duty of care arises - focuses on the persons who are linked. o In establishing whether a breach occurred - focuses on the nature of the risk and the kind of precautions they should have taken. Establishing a breach  2 issues to consider: o How foreseeable was the risk created by the defendant's conduct? o Was the defendants' response to the risk reasonable? Calculus of risk  Not asking whether risk itself was foreseeable (covered in duty of care).  Probability of harm vs gravity of consequences vs cost or burden of precaution against the risk - Learned Hand (US Judge). o Mason J, Wyong Shire Council v Shirt  A question of degree: o The higher the degree of risk, the less reasonable it is for the defendant not to take preventative measures. o Factors considered include cost and burden of preventative measures. Note: 

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Decisions establishing the existence of a duty of care can be precedential. o Duty of care arises because of a specific relationship between plaintiff and defendant, or special circumstances). However, decisions establishing that a breach of that duty occurred do not. o Breach is always a question of fact.

Establishing a breach  What is the risk?  How would a 'reasonable person' respond to that risk?  Standard of care: o "What would the reasonable person, in the defendant's position, with the knowledge they either had or ought to have had, have done the circumstances out of which harm arose?" o S42 CLWA Reasonably foreseeable risk?  Kirby J: Romeo v Conservation Commission (NT) (1998)  Factors to consider: o Risk 'not far-fetched or fanciful' ('not insignificant'). o The imprudent plaintiff - someone who does not take care. o Obvious and inherent risks. Not 'far-fetched or fanciful'  Note: this is not determined by the likelihood of the risk. o "When we speak of risk being foreseeable, we are not making any statements as to the probability or improbability of its occurrence" Mason J, Wyong SC v Shirt.  A risk with a slight chance of occurring may nonetheless be a real risk, which is reasonably foreseeable and measure should be taken to prevent it.  Wagon Mound No. 2  Wyong SC v Shirt  Chapman v Hearse  Test of hindsight, not foresight. Wyong Shire Council v Shirt (1980) 146 CLR 40 - Mason J (at 47-8)  "A risk of injury which is quite unlikely to occur ... may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable."  "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."

'Calculus' 

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Qualified in New South Wales v Fahy (2007): o "Requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury" - Gummow and Hayne JJ (at 57). Lots of legislative reform post-lpp o Unfortunately NOT uniform. o The few cases decided by superior courts do not apply everywhere. o What does the ACT legislation say?

CLWA reform: 'Not insignificant'  Ipp review: 'not far-fetched or fanciful' may ignore the calculus of negligence (actual likelihood of risk).  Recommended replacement 'not insignificant.'  Statutory amendment - impact yet to be determined.  'Not insignificant' likely to be related to, but narrower in scope than, 'not farfetched of fanciful.' 'Reasonable foreseeable' cf likelihood'  Bolton v Stone: although the risk is foreseeable, it is so unlikely it does not constitute a breach of no steps are taken to prevent it.  RTA v Dederer: if a longstanding practice has not previously caused any problems, the court will not consider the reasonableness of requiring preventive action. o If risk is low, if likelihood is low, do we need to protect against it? No. The Wagon Mound No. 2  "It does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so: For example, that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it is justifiable not to take steps to eliminate a real risk if it is small and the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think right to neglect it."  In the present case, there was no justification whatever for discharging the oil into the harbour... Not only was it an offence, it involved considerable financial loss. If the ships engineer had thought about the matter, there could have been no question of balancing the advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately. Imprudent plaintiffs  Historically, necessary to foresee and protect against foolhardy behaviour by the plaintiff. o Bus v Sydney o March v E & H Stramare Pty Ltd o Nagle v Rottnest Island Authority

Taking responsibility…  Phillis v Daly  Delahunt v Westlake   

But if the defendant know of risk, and does nothing… Rowes Bus Service v Cowan Anderson v Mt Isa Basketball Association

Inherent or obvious risks  Vary v Wyong SC; Mulligan v Coffs Harbour CC; Clarke v Coleambally Ski Club  Berrigan SC v Ballerini  Woods v Multi-Sport Holdings Pty Ltd  Civil Wrongs Act s3 - inherent risks for equine activities;  Civil Liability Act: ss5 (F-I) S43 Precautions against risk - general principles  A person is not negligent in failing to take precautions against a risk of harm unless— o the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); (Would the reasonable person have foreseen the risk?) and o the risk was not insignificant; (Ipp reform - replaces 'not far-fetched or fanciful' from Wyong v Shirt); and o in the circumstances, a reasonable person in the person’s position would have taken those precautions.  In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): o the probability that the harm would happen if precautions were not taken; o the likely seriousness of the harm; o the burden of taking precautions to avoid the risk of harm; o the social utility of the activity creating the risk of harm. Was the risk foreseeable?  ‘foreseeability of the risk and likelihood of the risk are two different things’; and ‘ a risk of injury which is quite unlikely to occur... may nevertheless be plainly foreseeable’- Mason J, Wyong Shire Council v Shirt.  ‘It is not the law that precautions must be taken against every peril that can be foreseen by the timorous’- Lord Normand, Bolton v Stone.  Palsgraf v Long Island Railway Company (1928)- courts decided the risk was a theoretical possibility, but not foreseeable. Was the risk 'not insignificant'?  ‘Not far-fetched or fanciful’- Mason J, Wyong Shire Council v Shirt  ‘Pendulum has swung too far in favour of plaintiffs’- Ipp report  Recommended: ‘not insignificant’- a risk that carries a higher degree of probability of harm

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Some discussion by the courts- still unclear, due to the lack of uniformity between jurisdictions.

What precautions would a ‘reasonable person’ have taken?  Must consider: o Probability of harm: s43(2)(a) o Likely seriousness of harm: s43(2)(a) o Burden of taking precautions: s43(2)(a) o Social utility of the activity creating the risk: s43(2)(a) Probability of harm  A foreseeable risk of harm may be ignored if the probability of it happening is sufficiently small o Bolton v Stone  See also o Roads and Traffic Authority (NSW) v Dederer o Rogers v Whitaker Likely seriousness of harm  “the risk of greater injury is relevant, as well as the greater risk of injury” o So severity of consequences, as well as likelihood of occurrence  Caledonian Collieries Ltd v Spiers  Romeo v Northern Territory Conservation Commission  Paris v Stepney Borough Council  Haley v London Electricity Board  Neindorf v Junkovic  If the seriousness is high, but the likelihood is low, and the burden of taking precautions is excessive, the reasonable person may not take those precautions Burden of taking precautions  Romeo v Conservation Commission o Occupiers’ response to naturally occurring risks  Caledonian Collieries Ltd v Spiers o Defendants' response to risk created by defendant  Mercer v Commissioner for Road Transport and Tramway o Ultra-hazardous/inherently unsafe activity  Vozza v Tooth and Co o No reasonable means for preventing risk o Neindorf v Junkovic o Roads and Traffic Authority v Dederer Public of social utility  Precautions against some activities are inconsistent with their social benefits o E v Australian Red Cross Society o Wood v Multisport Holdings  Often used to cover sporting or other activities  i.e. injury at school or club sport o Bujnowicz v Trustee of the Roman Catholic Church- it wasn’t the rugby that was the problem, it was the pothole in the field  Injury to spectators associated with watching sport

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o Haris v Bulldogs Rugby League Club Usefulness of the bridge as a lookout and resting-place o Road Traffic Authority v Dederer...