Tort 1 : Exam Answer Template PDF

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Answer Template: Basic issues to address: 1. Does Defendant owe a duty of care to Plaintiff in the tort of negligence, and what is the scope of that duty? 2. If a duty of care is owed by Defendant, have they breached their duty of care to Plaintiff Causation 3. Is the fault of Defendant a ‘necessary condition’ of the occurrence of Plaintiff injuries? 4. Should responsibility for Plaintiff’s harm be imposed upon Defendant, consideration of which includes whether there are any intervening acts. RULES OF DUTY OF CARE Negligence can be found Negligence is found when the defendant owes the plaintiff a duty of care, which the defendant breaches, and the plaintiff suffers damage due to that breach. (Donoghue v Stevenson [1932] AC 562). The elements in establishing a case in the tort of negligence include; duty, breach, and causation. Once duty and breach are confirmed, causation must be established. Causation has three aspects; factual causation, scope of liability and remoteness of damage. There can be no negligence without a duty of care. The established ‘neighbour principle’ as formulated by Lord Atkin in Donoghue v Stevenson requires that reasonable care be taken to avoid acts or omissions that are likely to injure a person’s neighbour as a matter of reasonable foreseeability (a ‘neighbour’ being someone so closely and directly affected by a party’s conduct that it is reasonably foreseeable that careless conduct of any kind by that party may result in harm of some kind to the plaintiff. A duty of care will exist between parties either because a duty is already established by reference to case law in previous cases, or because although the circumstances are considered ‘novel’, relevant considerations demand that it is ‘reasonable in all of the circumstances’ that a duty of care be found to exist e.g duty of care to prevent harm from foodstuff grown on public land (Graham Barclay Oysters v Ryan (2002)) the law of negligence has had little difficulty in recognising a duty of care when someone suffers physical harm and consequential loss (Tame v NSW), nor will a duty of care be contentious where the parties were in a pre-existing relationship unless policy considerations where a statue or common law rule prevents a duty of care arising. (e.g. injuries obtained through illegal activity). APPLICATION OF THE RULES ON DUTY OF CARE In considering whether Defendant owed a duty of care to Plaintiff, the harm suffered by Charlie is property/physical/mental injury. On present care, it would appear that [application of the rules to the facts]. As such, persons such as Plaintiff are so placed that it is reasonably foreseeable as a possibility that careless conduct of any

kind by Defendant may result in property/physical/mental harm to someone such as Plaintiff who is their ‘neighbour’. There are no policy considerations at odds with a duty of care existing here. RULES ON BREACH OF DUTY A breach of the duty of care is dependent upon the determination on whether the risk of injury to the plaintiff was reasonably foreseeable and the reasonableness of the defendant’s response to that risk. Section 5B (1) of the Civil Liability Act provides that a person is not liable for harm caused by that person’s fault unless the risk was foreseeable and it is a risk which the person knew or ought to have known and a risk which is not “insignificant” being ones which is not far-fetched or fanciful (Wyong Shire Council v Shirt (1980) 146 CLR 4). These questions are to be assessed prospectively, not with the wisdom of hindsight: Adeels Palace Pty Ltd v Moubarak (2009) CLR 420. Whether a reasonable person would have taken precautions against a risk of harm involves the application of a ‘negligence calculus’ which includes considerations of harm, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm (s5B(2) CLA). The reasonable response to risk can be split into four criteria’s: the first criteria, ‘probability that harm would occur if care were not taken’, that a risk is foreseeable does not mean it is necessarily probable. The second criteria is the ‘likely seriousness of the harm’. A reasonable person may guard against risk which has a low probability but high seriousness (see finding in Wyong SC v Shirt), other times a risk of harm may be so low that a reasonable person would not guard against it (see the finding in Bolton v Stone; Romeo v Conservation Commission of NT). The third criterion is the burden of taking precautions; where it is possible to guard against a foreseeable risk which is not fanciful, by adopting a means which involves little expense or difficulty, the failure to adopt such means will in general be a breach of duty (Turner v South Australia). The ‘reasonable person’ is an objective standard being a person of ‘ordinary prudence’ (Vaughan v Menlove). APPLICATION OF BREACH OF DUTY RULES The creation [ outline the risk,danger created] risk which is foreseeable and not ‘insignificant’ must be considered with regard to these particular relevant facts: [Apply the facts from question]. The risk of property/damage/ injury/physical harm arising from [the creation of the risk] a camper’s fire in a bush setting is thought to be both ‘foreseeable’ and not ‘insignificant’, not being far-fetched or fanciful having regard to risks which have been found to be insignificant. It is also thought that a reasonable person would take precautions against the risk here, in particular because the burden of reducing or eliminating the risk is low (Turner v SA (1982) 42 ALR 669)

[Apply to the facts e.g putting up a sign, having regard to gravity, frequency and imminence of danger, is probably insufficient. Surely, something else could have been done to better warn of and close the pool- low burden! The probability of harm and seriousness of harm both seem high given the physical setting for the fire. A reasonable person of ordinary foresight and prudence and experience would have not [Apply the facts, e.g a reasonable person would take precautions against water chlorinated above the recommended levels, even if not normally considered dangerous, either not lit the fire in the first place or would have taken steps to ensure the risk presented by the fire was reduced, which would include e.g. putting out the hot embers with e.g. water or sand. [provide conclusion It is thought the required standard of care has not been met by Defendants]. RULES ON CAUSATION A determination that Defendant’s fault caused the harm for which the Plaintiff seeks compensation will normally require that he prove that their breach of duty was a ‘necessary condition’ of the occurrence of the Plaintiff’s harm.(see ‘factual causation’- s 5C (1)(a) CLA), and that it is appropriate for Defendant’s liability to extend to the harm that has been caused ( see ‘scope of liability’-s 5C (1)(b) CLA). This is distinguished with common law principles of causation where an assessment of causation does not fall into 2 separate and distinct elements but is conflated by value judgements and guided by common sense (see Adeels Palace v Mourbarak, (2009) 239 CLR 420, [43]). A ‘necessary condition’ is one that ‘that must be present for the occurrence of the harm’ (Strong v Woolworths (2012) 246 CLR 182, 191). Factual causation is determined by the common law ‘but for test’ (Adeels Palace v Mourbarak, (2009) 239 CLR 420, [45]). The defendants must be more than 50% likely to have caused some of the loss, which will be determined on the balance of probabilities, rather than in absolute terms. The harm suffered must be contingent upon defendant’s breach of duty that is to say their breach of duty must have been indispensable to the harm that occurred (see Strong v Woolworths (2012) 246 CLR 182, 199.) Recognizing that changing any of the circumstances in which injury occurred might have made a difference does not prove factual causation, nor does pointing to possibilities that might have eventuated if circumstances had been different (Adeels Palace v Mourbarak, (2009) 239 CLR 420, [51]). Scope of Liability is applied largely as a policy tool to limit liability. Section 5C (4) is intended to encourage courts to articulate the competing arguments and values in determining where responsibility for harm should lie. Put another way there be a sufficient connection in law between the defendant’s conduct and the loss or injury suffered by the plaintiff, which is compensable at law Remoteness which is included within a consideration of scope of liability means that a defendant is not liable for harm of a different kind from that which was reasonably foreseeable. The issue of remoteness does not arise until it has been established

that a duty of care has been breached, and that the breach caused the harm. Because s 5C of the CLA gives no guidance on whether it is “appropriate” that the defendant’s liability extend to the harm caused, common law principles for testing remoteness, such as reasonable foreseeability, remain relevant. (see Wagon Mound No 1 and Wagon Mound No 2). Whether the kind of harm is foreseeable will involve a question of whether there is a ‘real risk’ to the mind of a reasonable person (Wagon Mound No 2), but this will not require the precise chain of events to be foreseen (Mount Isa Mines v Pusey). [If applicable – Intervening acts later acts may be such as break the chain of causation and limit the liability of the defendants] As regards Plaintiff pre-existing condition, once the kind of injury is foreseeable, the extent of harm suffered may depend upon the particular characteristics and constitution of the victim, such that a defendant takes his victim as he finds him. (see Nader v Urban Transit Authority on the egg shell skull rule). APPLICATION OF CAUSATION PRINCPLES A strict application of the ‘but for’ test would indicate that providing the erroneous departure time to Bronte satisfies the requirement of factual causation. But for the erroneous departure time, Bronte would not have flown to Tasmania and consequently would not have walked onto the wet airport floor upon which she slipped. Put simply, the negligence by Someplace Airways did ultimately make a difference to her. Despite the apparent breach of duty being a necessary condition of Bronte’s subsequent harm (i.e. it ultimately explains her physical proximity to the wet floor), the matter of scope of liability must also be considered (see s 5C (1)(b) and 5C (4) CLA. The mere existence of factual causation alone does not satisfy the requirement of causation, and for the purpose of determining scope of liability, the court must consider ‘amongst other relevant things, whether and why responsibility for the harm should, or should not, be imposed’ (s 5C (4) CLA). Like the hypothetical advice given to the mountaineer, it might be said that the erroneous provision of information to Bronte explains her subsequent physical presence at Tasmania’s airport, but the erroneous departure information has nothing to do with her fall and injury. The scope of Someplace Airways’ duty does not extend to all mishaps that Bronte might suffer upon her arrival at her destination. There is no sufficient causal connection between the content of Someplace Airway’s duty and the injury suffered by Bronte. The harm is not of the kind which is foreseeable as a possible consequence of the breach of duty....