Torts B - 03 Standard Of Care and Breach Of Duty PDF

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Personal Notes - TORTS B - 03 STANDARD OF CARE AND BREACH OF DUTY

02 STANDARD OF CARE AND BREACH OF DUTY 1. Duty of care 1. Ought the defendant to have reasonably foreseen that the plaintiff (as a member of a defined class or as an individual) would suffer injury if the defendant did not take care?  Phrase to use "not far-fetched or fanciful" from Wyong Shire Council v Shirt 2. What is the kind of harm suffered by the plaintiff? a. If personal or physical damage resulting from a negligent act, the duty of care inquiry can stop here; if not, you must continue- Authority: Bryan v Maloney b. If the only problem is an omissions, keep going to step 3 3. Are there strong case authorities for or against recognising a duty of care? 4. What are the other factors (or control mechanisms) which work for or against recognising a duty of care in the particular circumstances? o analogies with established categories of duties and o with any salient features or policy considerations contained therein which promote the existence of a duty of care or militate against the finding of such a duty. o Regard should also be had to any restrictions on recognising a duty of care contained in the Civil Liability Act.

2. Identify the standard of care (that of a reasonable person)  Blyth v Birmingham - stadnard of care of a reasonbale and prudent person  Exceptions: o young age (old age for contributory negligence) o Inexperience (no difference in standard) o Mental disability (no difference in standard) o Physical disability (depends) o Intoxication (no difference) o Professional Person (that of a reasonable professional) - or holding themselves out to have skills o Medical standards  External considerations o Statutory standards and general practices Breach of duty (s11 and s12 of CLA) 12 - Though D adopted precautionary practice after the accident, it does not automaticall discharge the P from his duty, P still has to prove the breach of duty 3. Was the harm suffered reasonably foreseeable? - s11(1)(a) E.g. Was it not far-fetched or fanciful that the P would suffer harm if the D failed to take reasonable care? 4. Risk 'not insignificant' - s11(1)(b) Ipp Committee: Is a risk that falls somewhere between a ‘not far-fetched and fanciful’ risk and a ‘significant’ risk Interpretations of the courts 1) A ‘clear’ risk (Drinkwater v Howarth) 2) Common law doesn’t need to be changed (NSW v Fahy) 3) ‘not insignificant’ substantially restates the common law (Council of Greater Taree v Wells) 5. Did the D breach the standard of care?  Would a reasonable person (or reasonable child/ professional person etc) based on standard of care have taken precautions? Then apply below.  *Note: Can take them through to the causation stage - choose the strongest one and those that have a contrast - e..g putting up a sign and making the bridge jump-proof 6. Apply the 4 factors in s11(2) of CLA + policy considerations  Probability (of risk occurring) - (higher probability, higher precaution)  Seriousness (of the risk) - (higher seriousness , higher precaution)  Burden - (higher burden, lower precaution)  Social Utility (E.g. Cricket ground, ambulance with left side drive, if child was older, giving the child more independent - St Mark's Coptic Church- 8 yo child) - (higher social utility, lower precaution)  Policy factors -s11(2) - 'among other relevant things'

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Personal Notes - TORTS B - 03 STANDARD OF CARE AND BREACH OF DUTY 2. Identify the standard of care (that of a reasonable person) Exceptions: 2.1 Young Age Rule: Standard of that of a reasonable person of that person's age (for kids only) McHale v Watson (1965) High Court - 12 year old boy threw a home-made metal dart which accidentally hit the 9 year old plaintiff's eye, causing her serious injury. The girl loses her sight. Held: Reasonable standard of care is that of a 12 year old boy. Court held no liability because he acted as that of a 12 year old. Therefore, D had not been negligent. However, if it was thrown by an adult in the same way, the adult might have been negligent. 2.2 Inexperience (no difference in standard) Old rule: If the P knows, or ought to know, of the D's inexperience or lack of ability and voluntarily exposes themselves to the risk of injury, the standard of care will be assessed with reference to the inexperience or lack of ability Cook v Cook (1986) High Court - P who was an experienced driver let an inexperienced driver drive her car. Inexperienced D hit on accelerator instead of brake and crashed car into pole, injuring P. Held: Standard of a reasonable learner driver. But D still breached the standard because she failed to live up to the standard of even a learner driver. Modern rule: Experience or not, standard will be the same Policy reason for the change: Now, learner drivers have to clock 100h and it is usually loved ones behind the wheel with them. If allow old compensation, those injured can't claim compensation from insurance companies. Imbree v McNeilly (2008) High Court - D was 16 year old and unlicensed. Swerved and oversteered resulting in the vehicle rolling onto its roof. Held: D owed the 'same objective standard of care as a licensed driver. 2.3 Mental disability (no difference in standard) Rule: The standard of care for a mentally disabled person is judged similarly to an objective standard of care. Adamson v MV Insurance Trust (1956) - D was driving a car under delusion that his colleagues were trying to kill him. He had ignored a pointsman's signal at a crossing, running down the P. Held: Standard that of a reasonable person. Even though criminal charges were dropped, civil ones weren't. Carrier v Bonham (2002) Queensland Court of Appeal - D, who has history of chronic schziphrenia, stepped in front of bus. P now has adjustment disorder, compelling him to give up bus driving. Resulted in personal and economic loss. Held: Liable. He should be judged by the standard of the ordinary and reasonable person. His mental illness did not diminish or reduce his liability in negligence to the plaintiff If these mentally unsound patients take advantage of their liberty and venture into "normal society", it only seems proper that their conduct should be judged according to society's standards, including the exercising of reasonable foresight and care for the safety of others. 2

Personal Notes - TORTS B - 03 STANDARD OF CARE AND BREACH OF DUTY 2.4 Physical Disability (e.g. stroke) Rule: Test of reasonable care may depend on whether the D, in the circumstances, embarked upon a task demanding alertness having regrd to what he or she knew or ought to have known about the disability. Roberts v Ramsbottom (1980) - D caused a few motor accidents in one journey because he suffered a stroke. He continued driving after the first accident. Held: D was liable for the accidents caused after the first accident where he suffered a stroke. He should have got out of his car because he knew he was at an impaired state. 2.5 Intoxication (no difference) Rule: Standard of that of a reasonable person for an intoxicated person. (I.e. Reasonable person is a sober person) Joslyn v Berryman (2003) High Court - Couple went to friend's property and got drunk. They later woke up at 4.30am to drive to get breakfast. On way back, Berryman started to swerve and fall asleep. Joslyn asked him to pull over and took over driving. Joslyn has not driven for quite a while because she had lost her driving license from drink driving. Ute has a broken speedometer so she did not know how fast she was driving. The ute has a propensity for rolling. Held: There is no modification in being drunk in both the duty of care and contributory negligence. We take into account the standard of a reasonable person. Civil Liability Acts s46 of the Civil Liability Act (Qld)--> intoxication does not increase or decrease s31(2) of the Civil Liability Act (SA) --> the only state that has this provision with respect to a duty of care --> concerned intoxicated by some drugs prescribed etc --> Consequences is that a stranger cannot tell whether that person was having an adverse reaction from medicine. s5 of the Civil Liability Act (Tas) (Note: Contributory negligence, NOT duty) 5. Presumption of contributory negligence where person intoxicated (1) If it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was, at the time of the act or omission that caused the death, injury or damage, intoxicated to the extent that the person's capacity to exercise due care and skill was impaired, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (2) If there is a presumption of contributory negligence, the court is to assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater or lesser percentage determined by the court to be appropriate in the circumstances of the case. (3) The onus of satisfying the court that damages ought to be reduced on account of contributory negligence by a percentage of less than 25% is on the person whose death, injury or damage is the subject of the proceedings for the recovery of damages. (4) This section does not apply in a case where the court is satisfied that the intoxication was not selfinduced. (5) Subject to subsection (6), a reference in this section to a person being "intoxicated" is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).

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Personal Notes - TORTS B - 03 STANDARD OF CARE AND BREACH OF DUTY (6) A person who has taken a drug for a medicinal purpose is not to be taken to be intoxicated for the purposes of this section if the person satisfies the court that he or she was not aware of the effect of the drug taken.

2.6 Professional Persons Rule: If a D carries out a task that a reasonable person would believe requires an expert to perform, they are holding themselves out to possess those skills and the D will be judged according to the standard of care of such an expert. Papantonakis v Australian Telecommunications Commission (1985) - Company added ordinary poles to the Telecom's cables. The poles were not stable and snapped when the appellant, a competent and experienced linesman, attempted to mount onto it. Held: Courts said that because he attempted to do that, he was said to have that skill. He held himself out by having that skill by engaging to the work, and therefore, he is held to a higher standard. Telecom not in breach. Occupier owed a duty of care and was in breach. Phillips v Whitely (1938) - Jeweller sterilised piercing device with a flame rather than using the careful procedure of surgeons. P developed an abscess. Held: Jeweller not liable because standard is that of a reasonable jeweller, not a reasonable surgeon. Rule: A professional known to be skilled and better at the trade is still held to the standard that of a reasonable professional. Heydon v NRMA Ltd (2000) NSWLR - Heydon was a famous barrister advising on the restructuring of NRMA. He failed to advise client that there was an ongoing case in the High Court. As a result, the decision in the High Court affected the restructuring, incurring major costs for the client. Held: Viewed at a standard that of a reasonable professional, not that of a higher standard of a famous professional. Civil Liability Act 2002 (Tas) s22 22. Standard of care for professionals (1) A person practising a profession ( "a professional" ) does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) Peer professional opinion cannot be relied on for the purpose of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purpose of subsection (1). (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. (5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in relation to the risk of harm associated with the provision by a professional of a professional service to a person.

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Personal Notes - TORTS B - 03 STANDARD OF CARE AND BREACH OF DUTY 2.7 Medical standards Rule: the Bolam principle: a doctor will not be negligent if she or he acts in accordance with a practice accepted at the time as reasonable by a responsible body of medical opinion, even though other doctors would adopt a different practice. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent". (Bolam v Freiern Barnet Hospital Management Committee (1957) ) Rule: Australian High Court rejected Bolam principle Rogers v Whitaker (1992) High Court - 47yo woman who was had lost sight in one eye went for surgery. The doctor failed to warn her of the risk of the other eye getting sympathetic ophthalmia causing blindness in the P's good left eye. Held: D should have been aware that P would regard the risk to the other eye as material and should have advised her of the risk. The Bolam test should not apply in cases involving advice or information from doctor to patient. Rule: Bolam test has been brought back through the Civil Liability Act and extended it to professionals - s22 of CLA 22. Standard of care for professionals (1) A person practising a profession ( "a professional" ) does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) Peer professional opinion cannot be relied on for the purpose of this section if the court considers that the opinion is irrational. (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purpose of subsection (1). (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted. (5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in relation to the risk of harm associated with the provision by a professional of a professional service to a person. Rule: Reasonable care must be related to the circumstances of the time and place H v Royal Alexandra Hospital for Children (1990) - Failure of hospital to warn of the risk of AIDS being transmitted through anti-haemophilic therapy. 1 in April 1983 and another in Sept 1983. By Sept 1983, the link between blood transfusions and contracting HIV was recognised by the scientific community. Held: Not negligent (no breach) for the one in April 1983; but negligent (i.e. breach) for the one in Sept 1983.

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Personal Notes - TORTS B - 03 STANDARD OF CARE AND BREACH OF DUTY 2B. EXTERNAL CONSIDERATIONS 2B.1 Statutory standards and general practices Rule: Just because the D breached statutory standards, does not mean there is a breach in duty of care. It is just a circumstance to take into account. Tucker v McCann (1948) Full Court of the Supreme Court of Victoria - P pillion passenger on a motorcycle sued the D driver of a motor car in an accident. P said D had breached traffic regulations by speeding. Held: D had not been negligent. Breaching traffic regulations was but one of the circumstances. Fox v Hack (1984) 1 Qd R 391 - P injured his back at work carrying 28kg blocks. Industrial award standard was for employees not to carry heavier than 20.45kg without a mechanical aid or assistance from another employee. Held: Industrial award standard included in common law standard. Rule: Usual practice / customary standards adopted by those engaged in the same activity as the D will not itself determine the standard of care, since the usual practice may fall short of the objective standard required by law Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) High Court - Driver of D tram collapsed at the controls, resulting in P getting injured. P sued D on negligence for failing to install a 'dead man's handle'. This was not installed in other tramway system. Held: D was liable in negligence for failing to install such a device. *Case showed how courts could be pre-emptive in pushing people. Woods v Multi-Sport Holdings Pty Ltd (2002) High Court - P was blinded in the eye during a game of indoor cricket. P sued D for failing to supply him with proper eye protection and failing to provide a signed warning of the dangers associated with the game Held: D did not breach duty. - eye injury statistics not significant; rules of game did not require such headgear; none had been designed for indoor cricket; cannot expect sign to be precise about the particular injury *Difference between Woods and Mercer - Woods was a sports activity while Mercer was an every commute for people - For sports, there is also a personal responsibility element involved.

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Personal Notes - TORTS B - 03 STANDARD OF CARE AND BREACH OF DUTY 3. Was the harm suffered reasonably foreseeable? E.g. Was it not far-fetched or fanciful that the P would suffer harm if the D failed to take reasonable care?

Wyong Shire Council v Shirt (1980) High Court - P was a water skiier and was skiing in the shallow water. D council put up signs advising 'Deep water'. P thought it referred to the water around the signs are deep, instead of the intended deep water between the signs. Held: D had been negligent, even though the risk of someone misunderstanding the signs was slight.

Schiller v Gregory (1985) - Involved the swimming pool at someone's house and there was a raised ledge around the pool. For 20 years, no one trips on it. Someone trips on it. Held: Not foreseeable. Courts said it has not happened for 20 years, this is the first time it has happened. New South Wales v Fahy (2007) High Court - An officer was claiming damages for developing Post Traumatic Stress Disorder after being left unassisted with a seriously injured man during the course of her duties. Held: The injuries and trauma suffered by Fahy as a result of being left alone were not reasonably foreseeable. Ms Fahy had failed to establish that the State breached its duty of care and that it was not sufficient merely to allege that the State should have instructed police officers working in pairs, that they should whenever possible remain together and that they should provide psychological support to each other during traumatic incidents. There was 3 concerns with reasonable foreseeability: 1. The presumption that if it is reasonably foreseeable, you should have done something -' There have been occasions where judges appear to have forgotten that the response of prudent and reasonable people to many of life’s hazards is to do nothing.' - Gleeson CJ in NSW v Fahy 2. The threshold was too low to satisfy 3. Once you've got the first point, the courts are not going to the second stage of the Wyong test. We are just assuming once there was foreseeability, you should have done something. --> These were the arguments raised in Fahy. --> This is the reason why "not insignificant was added in".

4. Risk 'not insignificant' One liner: Risk 'not insignificant' is similar t...