Torts Principles Skills and Application Principles PDF

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Chapter5

Breach of the Duty of Care Legal practice skill: Acting for children

Learning aims •

Know the test for finding the appropriate standard of care

•

Understand the difference between a legal breach and a factual breach

•

Learn the common law and statutory tests for finding a breach of a duty of care

Background concepts First principles

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5.1

As we saw in Chapter4, a threshold issue in determining liability is that the defendant owes a duty of care to the plaintiff.The follow-up inquiry is whether there has been a breach of duty by the defendant in relation to the plaintiff. In order to determine whether or not there has been a breach of the duty of care, a number of factors need to be considered. First, it is necessary to identify what the factual breach is. Just because a defendant has arguably done something careless or without due care does not mean that they have instantly breached their duty. Instead, it is necessary to analyse the relevant case law and statutory provisions to determine if there has been a legal breach.

Standard of care 5.2

Before looking at whether or not a defendant has breached his or her duty of care, it is necessary to determine what the standard of care is; that is, the level of care the defendant owes to the plaintiff.

How is the defendant’s standard of care determined? 5.3

There is a basic choice for the courts. They can treat defendants alike or they can treat each defendant on the basis of his or her own circumstances and 263

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5.3

Torts: Principles, Skills and Application

characteristics. The treatment of a defendant’s behaviour by the courts can be divided into two basic models: •

•

An ‘objective’ approach (where people or classes of people are treated the same): The practical effect for the court system is that this might cut down on the work for the court, but it might also produce skewed results where particularities are ignored. A ‘subjective’ approach where people’s differences and ‘idiosyncrasies’ are taken into account: The practical effect for the court system is that this would increase the workload for the courts because all sorts of personal circumstances would need to be judged by the courts.

The objective and subjective approaches in practice 5.4

As a general rule, the defendant’s standard of care is determined objectively. For example, the standard of care of all drivers of motor vehicles will be determined objectively. In the alternative, subjective elements may come into play in the standard of care inquiry in terms of the age of the defendant or the level of skills that a defendant may profess to have.

The objective model: the ‘reasonable person’ test fordefendants

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5.5

The reasonable person test is used when determining what the standard of care should be in a particular case. Obviously, what is reasonable to one person is not necessarily reasonable to another. Instead the test refers to an idealised, model person with ‘every person’ attributes invented by the courts. In that sense, the reasonable person is a construct or legal fiction.The term ‘reasonable person’: • • •

• • •

is a convenient ‘word formula’ for the courts to adopt; needs to be applied in context to be made sense of; has historically been expressed in male terms.The classic United Kingdom term to represent the reasonable person was the ‘man on the Clapham omnibus’. This is dated in terms of both its gendered language and the quaint reference to what we would today call a ‘bus’; in Australian terms, has been referred to by Deane J as the ‘hypothetical person on a hypothetical Bondi tram’;1 has an objective theoretical basis; and in terms of cases, however, is usually applied via at least some of the characteristics of the particular defendant, so that its application is a mix of the subjective andobjective.

1. Papatonakas vAustralian Telecommunications Commission (1985) 156 CLR 7 at 36 per Deane J.

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5.8

Breach of the Duty of Care

Particular contexts of the reasonable person test Drivers in general 5.6

The following case establishes what the duty and standard of care is of a driver to another road user is.

5.7

Imbree vMcNeilly [2008] HCA 40 Court: High Court of Australia Facts: An unqualified driver injured his passengers. The passenger was, in the particular context of the accident, regarded as akin to a driving instructor. Legal principle: The court found that the decision in Cook vCook2 should be overturned. It determined that an objective standard should be applied to the test of driver ability: the test was that the driver was to be regarded as the reasonable driver. Why? Because if a general standard was not imposed, there would be uncertainty. As the court in Imbree found (at [72]):

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The principle adopted in Cook vCook departed from fundamental principle and achieved no useful result. It is necessary, of course, to recognise that it is a decision that has stood for more than 20 years. Although it seems that there are few if any decided cases in which it has been applied to deny liability, it must be assumed that its application may have affected the terms on which cases have been compromised and the apportionments of responsibility that have been made by courts and parties. Yet despite these considerations, it is better that the departure from principle is now recognised. The plaintiff who was supervising the learner driver, the plaintiff who was another passenger in the vehicle, the plaintiff who was another road user are all entitled to expect that the learner driver will take reasonable care in operating the vehicle. The care that the learner should take is that of the reasonable driver.

2

Children

Children as defendants 5.8

When children are defendants in a negligence claim, should they be judged in accordance with the reasonable person test? The following case sets out the standard of care which is relevant to a defendant who is a child.

2. Cook vCook (1986) 162 CLR 376; 68 ALR 353.

265 Clarke, Andrew, et al. Torts : Principles, Skills and Application : Principles, Skills and Application, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/acu/detail.action?docID=6381952. Created from acu on 2021-03-21 15:57:49.

5.9

5.9

Torts: Principles, Skills and Application

McHale vWatson (1966) 115 CLR 199 Court: High Court of Australia Facts: A boy aged 12 was playing with a dart. He threw it at a post. It missed the post and hit a girl aged nine in the eye. Legal principle: What was the boy’s culpability? The court’s decision (application of the legal principle to the facts): Is the standard objective or subjective? In this case, the standard appears to have been applied subjectively. The standard was held to be that of the reasonable 12-year-old child. The High Court held there was no breach of the duty owed by the boy to the girl. The various tests/standards used by the judges in McHale vWatson in relation to a child defendant can be summarised as follows.

Judge in McHale vWatson

Test of liability for a child defendant

Comment on the test

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1. McTiernan ACJ

Decision

12-year-old defendant not liable

2. Kitto J

‘an ordinary child of comparable age’

A mix of the subjective and objective

As above: not liable

3. Owen J

‘a child of the same age, intelligence and experience’

This is the most subjective of the tests in that it takes into account a number of particular attributes of the defendant

Not liable

4. Menzies J ‘ordinary (dissented) reasonable man’

This is an objective standard of care

The defendant is liable. MenziesJ (dissenting) effectively judges the 12-year-old defendant as an adult

266 Clarke, Andrew, et al. Torts : Principles, Skills and Application : Principles, Skills and Application, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/acu/detail.action?docID=6381952. Created from acu on 2021-03-21 15:57:49.

5.11

Breach of the Duty of Care

Children as plaintiffs 5.10

5.11

A related issue is how the courts treat child plaintiffs and to what extent they will be held responsible for their own injuries (this involves examining the contributory negligence defence which we look at further in Chapter7).

Kelly vBega Valley County Council Unreported, 13 September 1982 Court: New South WalesCourt of Appeal Facts: A boy aged 11 was seriously injured after coming into contact with a high voltage terminal owned and constructed by the council. He sued the council. They sought a ruling on contributory negligence. Legal principle: The question for the court was to what extent was the boy responsible for his own injuries? That is, what was the extent, if any, of his contributory negligence? The court’s decision (application of the legal principle to the facts): Glass JA imposed an objective standard. He said: ‘I … take the law to be that the conduct of a particular infant plaintiff charged with contributory negligence is to be measured according to the hypothetical conduct of an infant of the same age’. He said that there could be a ‘gloss’ (a qualification or variation) on the objective standard so that the court could consider particulars such as ‘the levels of intelligence, experience and development’. For the court to consider this potentially lesser standard, the evidentiary standard is on the child to show he or she has a ‘physical or mental infirmity’. These include ‘the brain damaged child, the one-legged child, the blind child would be able to invoke his idiosyncrasies’ (but not this plaintiff).

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Background and context: We will look at this case again in Chapter7 (see7.27) in terms of the defence of contributory negligence, which examines the issue ‘to what extent is a plaintiff responsible for his or her own injuries?’ Glass JA went on to state that ‘the conduct of each negligent party is open to calibration on three separate scales — its intrinsic danger, its duration and the maturity of the actor’. Applying these, he found as follows.

Factor

Applied to the Applied to the defendant council 11-year-old plaintiff

Intrinsic danger of electricity infrastructure

The plaintiff put only himself at risk

• The council transmitted electricity at lethal voltages in a public street • The council was, therefore, potentially putting the public at risk

267 Clarke, Andrew, et al. Torts : Principles, Skills and Application : Principles, Skills and Application, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/acu/detail.action?docID=6381952. Created from acu on 2021-03-21 15:57:49.

5.11

Torts: Principles, Skills and Application

Factor

Applied to the Applied to the defendant council 11-year-old plaintiff

Duration of the electricity project

‘The plaintiff’s default was ephemeral and impulsive in character’

The council’s ‘default’ (set out above) applied throughout the council area for a lengthy period of time

Maturity (age etc) of the actor (ie relevant parties)

‘The plaintiff was an immature boy of 11’

‘The defendant’s default was that of mature men’

Glass JA relied on a fourth factor. He found that the council had created a situation which was alluring, that is, 11-year-old boys would be attracted to climbing their electricity poles. He found that this ‘in a real sense provoked and facilitated the default of the plaintiff’. He found the council, therefore, 75 per cent to blame.

Breach of the duty of care Introduction

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5.12

In order to determine if there has been a breach of the duty of care, a number of factors need to be discussed. First, whether or not there is a factual breach needs to be assessed. That is, what did the defendant do or fail to do that constitutes a breach? Some examples of a factual breach are: • • •

not giving way at an intersection; failing to diagnose a medical condition; and providing negligent advice to a client.

In order to establish a factual breach, it is necessary to analyse the relevant statutory provision/s and the precedent common law cases. For example, in New South Walesit is necessary to apply s5B of the Civil Liability Act2002 (NSW).

Has the defendant breached the duty of care in this case? 5.13

Negligence litigation involves assessment of the particular relationship between plaintiff and defendant and the relevant and particular facts and circumstances as between them. The inquiry is aimed at particulars, not generalities, and cases often turn on finite and particular pieces of evidence.The court seeks to answer the specific inquiry: has the defendant actually been negligent? That is, has the defendant breached his or her duty of care in this case? 268

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5.16

Breach of the Duty of Care

This involves assessment and analysis of several factors, including: • • •

the behaviour of the defendant; the behaviour of the plaintiff; and the surrounding facts and circumstances.

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Legislative provisions 5.14

Traditionally, whether or not there was a breach of the duty of care was determined under common law principles. In order to work out whether or not there was a breach of the duty of care it was necessary to look at a selection of what was then known as ‘calculus of negligence factors’. It is no longer necessary to apply these factors under the direction of the common law. These factors have been subsumed into the applicable legislation. The provisions in the other jurisdictions in Australia are very similar to the New South Walesprovisions.3 We will focus on the New South Walesprovisions in this chapter. Please note there are no equivalent provisions in the Northern Territory. Instead see Romeo vConservation Commission (NT) (1998) 192 CLR 431.

5.15

Section5B of the Civil Liability Act2002 (NSW) is as follows: (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.

Section5B(1) of the Civil Liability Act2002 (NSW) 5.16

Section5B(1)(a) of the Civil Liability Act2002 (NSW) sets out that a defendant cannot be liable for an unforeseeable risk. In other words, a foreseeable risk must not be far-fetched or fanciful.

3. SeeCivil Law (Wrongs) Act2002 (ACT) s43 (1); Civil Liability Act2003 (Qld) s9(1); Civil Liability Act1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s48(1); Civil Liability Act2002 (WA) s5B(1).

269 Clarke, Andrew, et al. Torts : Principles, Skills and Application : Principles, Skills and Application, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/acu/detail.action?docID=6381952. Created from acu on 2021-03-21 15:57:49.

5.16

Torts: Principles, Skills and Application

Section5B(1)(b) of the Civil Liability Act2002 (NSW) notes that the risk must not be insignificant. In Shaw vThomas,4 Macfarlan JA stated: ‘The requirement in s5B(1)(b) that the risk be “not insignificant” imposes a more demanding standard but in my view not by very much’. Section 5B(1)(c) refers to the concept of the reasonable person which has traditionally been used in negligence cases. The standard of the reasonable person has been critiqued extensively. Obviously, what is reasonable behaviour to one person, may not be to another.The reasonable person tends to be viewed as an idealised, ethical standard. Section5B(2) factors 5.17

Section5B(2) is essentially a statutory implementation of what was previously known as the ‘calculus of negligence factors’ as stated in 5.12. In order to determine how these sections are applied, it is helpful to look at both past common law cases and cases which have since interpreted these sections, as shown in Table 5.1.

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Table 5.1

Relevant section in New South Wales

Factor

Summary

Relevant case law

Section5B(2)(a)

Probability

Probability of harm happening

Bolton vStone [1951] All ER 1078 Roads and Traffic Authority of NSW vDederer (2007) 238 ALR 761

Section5B(2)(b)

Gravity/ seriousness of injury

Paris vStepney Borough How serious are the injuries/damage Council [1951] 1 All ER 42 likely to be?

4. Shaw vThomas [2010] NSWCA 169.

270 Clarke, Andrew, et al. Torts : Principles, Skills and Application : Principles, Skills and Application, LexisNexis Butterworths, 2019. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/acu/detail.action?docID=6381952. Created from acu on 2021-03-21 15:57:49.

5.19

Breach of the Duty of Care

Relevant section in New South Wales

Factor

Summary

Relevant case law

Section5B(2)(c)

Practicality

The burden to the defendant of taking precautions

Caledonian Collieries Ltd vSpeirs (1957) 97 CLR 202 Graham Barclay Oysters Pty Ltd vRyan (2002) 211 CLR 540 Roman Catholic Church Trustees for the Diocese of Canberra & Goulburn vHadba (2005) 221 CL...