Randall v Kate - Grade: 79 PDF

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I RANDALL V KATE

A Damage 1 Physical Harm

Kates (defendant) car collided with Randall’s (plaintiff) car, injuring the plaintiff, causing ‘harm’ as defined under s5 of the Civil Liability Act 2002 (NSW) (CLA). Following the accident, the plaintiff’s right leg needed to be amputated.

B Duty of care

The driver of a vehicle owes an established duty of care to other road users including pedestrians (Cook v Cook (1986) 162 CLR 376). The standard applied is that of the reasonable driver. It is not affected by a driver’s level of experience, or their possession of a license (Imbree v McNeilly (2008) 236 CLR 510).

The defendant would be found negligent in the control and management of her vehicle. She would be liable because it was her negligence which caused the accident in the first place. (Chapman v Hearse (1961) 106 CLR 112).

C Standard of care To determine whether the defendant was at fault, the court will objectively measure the defendant’s conduct against a ‘standard of care’. As a general rule, the standard of care required is an objective one, that of a reasonable man. In this case, the defendant must exercise the same care that a ‘reasonable person’ would in the same situation, which includes obeying traffic laws and paying attention to pedestrian’s and other drivers. The defendant has failed to do so as she drove through an intersection containing a STOP sign.

Here, as mentioned, when the defendant carelessly drives through a STOP sign. This demonstrates that there is a reasonably foreseeable risk of a car accident because the defendant's actions have increased the likelihood of the event; and that harm was reasonably foreseeable because there was a systematic relationship between the defendant's action and the plaintiff's harm (Chapman v Hearse).

D Breach of Duty The defendant’s alleged wrongful act was negligent driving, namely the failure to stop at an intersection containing a STOP sign.

1 Foreseeability of Risk (s 5B(1)(a)) The modern definition for negligence, developed in Donoghue v Stevenson recognised the cornerstone for finding a duty is ‘reasonable foreseeability’, as Chapman v Hearse distinguished it as an event that ‘might well be anticipated’.

We can therefore suggest that it is reasonably foreseeable that driving negligently may result in a car crash causing injuries to other road users. The higher the risk the greater the efforts the defendant must make to avoid it, this being said, driving through an intersection clearly marked with a STOP sign would put the driver and other road users at a high risk of an accident (Wyong Shire Council v Shirt (1980) 146 CLR 40).

2 Significance of Risk (s 5B(1)(b)) Injuries and accidents are a common result of negligent driving. The risk of an injury occurring from the defendant not stopping at a STOP sign intersection was not insignificant (Drinkwater v Howarth [2002] NSWCA 222). 3 Reasonable Precautions (s 5B(1)(c))

In assessing whether a reasonable person would have taken precautions against the risk, the calculus of negligence as set out within s 5B(2) must be addressed. (a) Probability of Harm (s 5B(2)(a) The probability of harm occurring pursuant to negligent driving is high. The high number of collisions which result in severe injury like this is undeniable evidence (Bolton v Stone [1951] AC 850). (b) Likely Seriousness of Harm (s 5B(2)(b) The likely seriousness of the harm which may result from negligently failing to stop a vehicle at a STOP sign is high also and the standard of care from the defendant is directly affected by the degree of the risk (Paris v Stepney Borough Council [1951] AC 367); the greater the potential harm, the greater the precautions the defendant should have taken. As the harm inflicted to the plaintiff was so great (leg amputation), the defendant would be expected to take greater precautions against the risk, namely by driving in a suitable manner for the layout of the road. (c) Burden of Taking Precautions (s 5B(2)(c)) There are many precautions the defendant could have taken to prevent the accident, all being reasonably practical – stopping at the stop sign; driving a different route; paying more attention to the road and road signs. None of these precautions would have had a burden on the defendant or the plaintiff. This is not a significant burden on the defendant since the extent of the damage and injury is disproportionate to the extent of culpability and risk associated within. (d) The social utility of the activity (s 5B(2)(d)

The risk that the defendant took by driving through the STOP sign because she was ‘so excited to see her Mum’ is not justified, as it does not serve for a higher purpose. In this case

the social utility of the act does not outweigh the probability and magnitude of the risk, as standard of care is so high, this was discussed by Denning LJ in Watt v Hertfordhire County Council. Just so, a reasonable person would take precaution to avert the harm that was caused....