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BREACH Reasonable foreseeability of risk Wyong Shire Council v Shirt (1989) CLR 40 High Court of Australia Facts: The plaintiff was water-skiing in a commonly used circuit when he fell and hit the bed of the lake in a shallow area. He was paralysed as a result. The council had put signs saying “Deep Water” at four points along the channel where the plaintiff was injured. The issue is whether the council had breached its duty of care towards the plaintiff. The court found that the council did breach its duty. Principles:  “A person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man.” (Bolton v Stone) The judgment held that there was no duty in Bolton because the risk was foreseeable but was so small that a reasonable man would not have tried to eliminate it. This precedent suggests that foreseeability extends to events which are not unlikely to occur.  Standard of care: 1) Is the risk foreseeable? It can’t be far fetched or fanciful (Mason) 2) Would the reasonable man take steps to eliminate this risk? The factors to consider under this step include the magnitude of the risk balanced against the probability of its occurrence and the expense, difficulty and inconvenience of minimising the risk and any other conflicting responsibilities.  The council argued that it wasn’t RF for the person putting up the sign to foresee the risk that an inexperienced skier would assume it meant the whole area. Against this, Mason believes that it was confusing and should have been a lot clearer it its message in terms of area.

The reasonable person Cook v Cook – Consensual relationship (1986) 162 CLR 39 High Court of Australia Facts: The plaintiff encouraged the defendant to drive without a licence. The defendant crashed the plaintiff’s car into a pole. The issue is “whether the duty of care owed by a driver to a passenger under the law of negligence invariably requires that the driver exercise the degree of skill which could reasonably be expected of an experienced and competent driver in the circumstances notwithstanding that a basic ingredient of the relationship between the particular driver and passenger is their mutual knowledge that the driver is unqualified and lacks that skill.” The defendant had not breached her standard of care. Principles:  “The definition of the content of that objective standard will depend upon the relevant relationship of proximity from which it flows and into which the reasonable person of the law of negligence must be projected; it is because that relation may vary that the standard of duty or of care is not necessarily the same in every case.” (Joyce’s Case)  “In an ordinary action in negligence where the plaintiff is a passenger who has been injured in a motor vehicle driven by the defendant, the relevant relationship of proximity is simply that of driver and passenger… the standard of care required, being objective and impersonal, is not modified or extended by the personal driving history, ability or idiosyncrasy of the particular driver.”  “Where special and exceptional facts transform the relevant relationship, questions of the requisite proximity of relationship and of the standard of any duty of care must be determined by reference to the more precisely confined category into which the particular relationship falls… the standard of care, while remaining an objective one, must be adjusted to the exigencies of the relevant relationship in that it will be the degree of skill and care reasonably to be expected of the hypothetical reasonable person projected into a more precisely confined category.”

 NB – the relationship between a learner driver and another user of the highway will NOT be modified and will be the ordinary relationship between drivers and users of the highway. It is only the relationship between learner and instructor that can be modified. Rogers v Whitaker - Professionals (1992) 175 CLR 479 High Court of Australia Facts: The plaintiff became almost completely blind after an operation performed by the defendant. Prior to the operation, the plaintiff had been blind in one eye, and the operation resulted in the loss of sight to her other eye. The injury was not due to any negligence in the procedural operation by the defendant. The plaintiff claimed that the defendant breached his duty to warn her of this possible risk associated with the operation. The defendant claimed that the risk was only 1 in 14,000 and the standard of care could not involve cautioning the patient of every single risk, regardless of how remote. Principles:  The duty to exercise this reasonable care extends to: 1. examination; 2. diagnosis; 3. treatment; 4. provision of information.  The standard of care required by a doctor is the standard of reasonable care and skill of the ordinary skilled person exercising and professing to have that special skill (Bolam v Friern Hospital Management Committee). This ‘Bolam principle’ is “that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion… the law imposes a duty of care but the standard of care is a matter of medical judgment.”  The ‘Bolam principle’ has been replaced by Albrighton v Royal Alfred Hospital, which states that the standard of care in information depends on “the nature of the matters to be disclosed; the nature of the treatment; the desire of the patient for information; the temperament and health of the patient; the general surrounding circumstances.” The Courts now determine the standard of care required.  “A doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”  An action such as this should be framed in negligence and not trespass because the patient is taken to have consented to the battery if they were advised of the risks in broad terms (Chatterson v Gerson). McHale v Watson - Children (1966) 115 CLR 199; [1966] ALR 513 HCA Facts: Boy aged 12 threw steel rod at wooden post. He missed and hit a 9 year old girl in the eye. She sued Barry and parents but lost both. They appealed against the judgement for Barry. Principles:  “Boys will be boys” and this may involve a risk (Kitto)  It is not unreasonable for a child and boy aged 12 to act in this manner and therefore the standard of care is not equal to that of an adult aged 18 or older. It is not feasible to think that a young boy would consider the sharpness and gravity of a metal object when throwing it at a tree despite the proximity of the girl. Adamson v Motor Vehicle Insurance Trust – Mentally ill (1957) 58 WALR 56 Supreme Court of WA Facts: Plaintiff was run down at a road crossing by a man who had stolen a car and was found to be mentally ill at the time. The action was brought against the cars insurer. Principles:  It is unclear how the courts adjust the standard of care of a reasonable person with disabilities. The court said that even though he may not have appreciated that it was wrong he was still aware and understood that he was doing at the time.

 They use the rule of convenience and say’s that insanity should not vary the reasonable person test.

Calculus of negligence Romeo v Conservation Commission of the Northern Territory - Probability (1998) 192 CLR 431 High Court of Australia Facts: The plaintiff suffered injury after falling off cliff edge in a public reserve controlled by the defendant. The plaintiff was drunk and the cliff was fenced by some low logs. The duty of care towards the plaintiff had been established. The issue in this trial was whether the defendant had breached this duty. The court found that there had been no breach of duty. (Gaudron and McHugh dissented) Principles:  “It is the reasonableness of a defendant’s actions or inactions, when faced with the relevant risk, which is critical in determining whether a duty of care has been”.  When looking at the reasonableness of precautions taken, the court should bear in mind the resources available to the defendant and whether the prioritisation of risk management steps by the defendant was appropriate.  ‘Conflicting Responsibilities’ in this case include the need to preserve the natural environment in the reserve (“avoidance of measures which would significantly alter the character of a natural setting at substantial cost and for an improvement in safety of negligible utility.”)  The plaintiff’s intoxication does not automatically limit the standard of care: “the Commission, acting reasonably, would have to anticipate a variety of visitors, including children, the elderly, the short-sighted, the intoxication and the exuberant.”  Kirby – looks at it practicably in cost terms, it’s not practicable to put a fence up everywhere because of one drunk girl.  McHugh – High magnitude and low probability, claims that it was a possibility that this could happen and the council should have responded Paris v Stepney Borough Council - Gravity [1951] AC 367; [1951] All ER 42 House of Lords Facts: Plaintiff had suffered a war injury that left him effectively blind in one eye. His employer knew of this and while engaged in maintenance work the plaintiff struck a rusty bolt with a hammer and a chip flew into his good eye blinding him, he alleged employer was negligent not giving him goggles, trial judge agreed, then court of appeal reversed. The court found that there was a breach of duty. Principles:  The gravity of the situation must be taken into account in determining the standard of care required. In this case, the risk of injury to a 2 eyed person is less than a one eyed person because the gravity of injury is greater. Thus the standard of care must be changed accordingly.  It was the duty of the employer in this case to take extra precautions because of the gravity of the injury.  MacDermott says that the decision by the Court of Appeal was not based on gravity but just the probability of a one eyed man compared to a 2 eyed man. Caledonian Collieries Ltd v Speirs – Practicability (1957) 97 CLR 202 High Court of Australia Principles:  The risk was possibly RF, probability was medium to high and gravity was high  Should appellant have put in catch points? Defendant says too costly and opens floodgates. As well as risk of injury through derailing a train.  Afterwards they did put in catchpoints but court said this wasn’t an admission of guilt. It did however allow them to view the practicability. As a result the risk of derailing a train was thought sufficient enough to prevent the greater harm to human life. E v Australian Red Cross Society – Justifiability (1991) 31 FCR 299; 105 ALR 53

Federal Court of Australia (Full Court) Facts: Appellant was given blood transfusion in 1980 that was HIV positive but at the time the tests were new and not cleared. The appeal was dismissed because when determining DOC, Breach and Causation you must look at the time of the incident, then not now. Principles:  The determination is based on the situation at the time of the incident and as such meant that the blood test was new and wasn’t given the all clear. Therefore there was no breach of duty by the Red Cross in transfusing blood that was HIV positive.  While their role was to supply as much blood as possible was it justified that the concern of contamination outweighs the difficulties by reducing the blood supply, especially when the tests at the time were inconclusive.

CAUSATION March v E & MH Stamare – ‘but for’ & common sense/novus actus (1991) 171 CLR 506 High Court of Australia Facts: The plaintiff was driving at 1.00am and hit a truck which the defendant had parked in the street. The plaintiff was drunk at the time, so that his ability to judge speed and distance and his reaction times were affected. The truck had its hazard lights illuminated and half the width of the truck projected into the lane in which the plaintiff was driving. The issue was whether causation had been established (whether the ‘but for’ test was the exclusive test for causation or whether there had been a novus actus interveniens). The defendant was liable for the plaintiff’s injury. Principles:  The ‘but for’ test is not the exclusive test for causation and the question of causation in science is different from the issue in law, which is the scope of liability (in law “problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence”). The ‘but for’ test will not work when there are multiple sufficient causes of the injury or when there is a novus actus interveniens.  The issue causation should be divided into two tests: 1. causation in fact which employs the ‘but for’ test (a negative criterion); 2. Predominantly a public policy test of whether the defendant should be liable for the damage.  In the past, liability has been expressed in terms of consequences which are ‘direct’, ‘natural and probable’, ‘direct and natural’, when the wrongful conduct is the ‘proximate cause’ or the ‘real effective cause’. Also, criteria of reasonable foreseeability has been applied in that plaintiff’s have been awarded damages when their injury is one that the reasonable man would have foreseen. BUT, “reasonable foreseeability is not a test of ‘causation’; it marks the limits beyond which a wrongdoer will not be held responsible for damage resulting from his wrongful act” (Chapman v Hearse).  The ‘last opportunity’ rule: “the plaintiff was entitled to recover, despite his own negligence, if the defendant had the last opportunity of avoiding the accident but failed to do so due to negligence… Then the defendant’s negligence was the effective cause of the injury. The defendant’s negligence broke the chain of causation so that the defendant’s negligence was left as the effective cause of the plaintiff’s injury.” This rule is not affected by apportionment legislation – they apply to different facts. Sometimes the plaintiff’s negligence (or the defendant’s negligence) is merely an “antecedent condition not amounting to a cause.”  Intervening act: even if the intervening act is foreseeable, the defendant will not necessarily be liable, however, if the intervening act is “in the ordinary course of things the very kind of thing likely to happen as a result of the defendant’s negligence” then they will be liable (Dorset Yacht). This is a matter of logic and common sense. Rosenberg v Percival – medical causation [2001] HCA 18 High Court of Australia Facts: Dr Percival consulted the appellant who recommended that she undergo surgery called osteotomy. Both parties agreed Rosenberg didn’t advise Percival of the risks of getting joint disorder. Radiology carried out b4 the op said

her joints were normal. She had a second op to mobilise the joints, physio didn’t assist and she has chronic pain reduced ability to work etc. Was heard at trial who found for Rosenberg, based on the fact that she would have had the surgery anyway. Then was heard at Full Court who found for Percival based on fact that she wouldn’t have had the surgery. Rosenberg appealed. Principles:  In Australia we use a subjective test to figure out whether a person would have undergone surgery if warned of risks or not based on that particular person.  The Civil Liability Act says that any statement made by the person suffering the harm about what he/she would have done is inadmissible unless it is against his/her interests. 5M Sec(2)(b)

REMOTENESS Overseas Tankship (UK) v Morts Dock and Engineering Co (Wagon Mound (No 1)) (1961) AC 388 House of Lords Facts: While the defendant’s boat was moored, the carelessness of the defendant resulted in an oil leak onto the water. Some debris floating on the water was set alight by molten metal falling from the wharf and this then set the floating oil on fire. The fire spread and damaged the plaintiff’s wharf and equipment. The defendant did not and could not be expected to know that oil on water could catch fire. The issue is whether a person is liable for all natural consequences of their negligent actions, or merely foreseeable consequences. The defendants were not liable. Principles:  The rule in Polemis was that a person was liable for all consequences of their negligent acts, regardless of the foreseeability of those consequences. This precedent was overruled. It was decided that the basis of the Polemis rule was that someone should be expected to foresee a consequence that was natural or probable, and therefore be liable. Thus, the test for causation was limited in this case to consequences which are reasonably foreseeable.  “Why should the ‘reasonable foreseeability test’ be rejected which, since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind, and the ‘direct consequence test’ be substituted which leads to nowhere but the never-ending and insoluble problems of causation.”  Concluded that damages can only be recovered if the injury complained of not only was caused by the negligent act but also was an injury of a class or character foreseeable as a result of it. (Reasonable foreseeability)  Type of injury doesn’t matter, its only a class of injury that has to be RF, the extent of the injury is irrelevant

DEFENCES Froom v Butcher – Contributory negligence [1976] QB 286: [1975] 3 All ER 520 Court of Appeal (England) Facts: The plaintiff was driving right side of the road when the defendant hit while overtaking the other way. The plaintiff wasn’t wearing a seatbelt and as a result had injuries that wouldn’t have been with a seatbelt on. The trial judge found no contributory negligence and thus didn’t reduce the damages, defendant appealed. The result was that he contributed to his damage and injury. Principles:  Contributory negligence does not depend on breach of duty, and is not negligence to others but to his own safety. “He is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable person, he might hurt himself.”  In accidents there is the cause of the accident and the cause of the damage, in this case the cause of the accident was the negligent driving by the defendant. On the other hand the cause of the damage was not wearing the seatbelt. Caterson v Commissioner for Railways – Contributory negligence

(1973) 128 CLR 99; [1972-73] ALR 1393 HCA Facts: Plaintiff was seeing off a friend at the train station. As he carried the luggage into the train the train started moving without warning, the plaintiff’s son was on the platform and he jumped off the train without thinking and was injured. Appeal was allowed. Principles:  The speed of the train was paramount because a reasonable person would not jump off a fast moving train and thus contributes to their injury, however here the train was moving slowly and as such gave more to the plaintiff.  The court found enough factual evidence to believe that the jumping off the train was an act that was not unreasonable to a person with a son on the platform and the next station 80km away. Kelly v Bega Valley County Council – Contributory negligence Unreported 13 September 1982 Court of Appeal (NSW) Facts: 11 year old boy came into contact with a high voltage terminal and was electrocuted. Plaintiff sued the council for negligence. Defendant brought up contributory negligence and the trial jury found both negligence int eh affirmative. They apportioned 25% against defendant and 75% against plaintiff. The appeal resulted in a switch of apportions. Principles:  The trial judge used McHale as precedence and as such the defendant claimed that the “boys will be boys” comment by Kitto was merely obiter and that they should apportion the damages based on the capacity of the child and this child was particularly idiotic.  However J Glass said that this comment may be obite...