Please enable JavaScript.
Coggle requires JavaScript to display documents.
Week 3 Negligence - Breach of Duty (Standard of Care (Characteristics of…
Week 3 Negligence - Breach of Duty
Standard of Care
Characteristics of the defendant and plaintiff
Disability
Baxter v Woolcombers Ltd (1963) 107 SJ 553
In a general sense, disability in the defendant should be disregarded, as should individual intelligence
Mansfield v Weetabix Ltd [1998] 1 WLR 1263
courts are willing to consider the circumstances of each case and may be willing to take into account a physical disability (such as epilepsy or hypoglycaemia) if the defendant did not know or ought not to have known about the disability
defendant was not liable for crashing a truck, where the driver was unaware he was suffering from hypoglycaemia
Skill and knowledge
Mahon v Osborne [1939] 2 KB 14
A person possessing special skills or knowledge will be expected to attain the standard of a reasonable person with those skills or knowledge
Papantonakis v Australian Telecommunications Commission (1985) 57 ALR 1
However, in cases where the defendant carries out a task that requires certain skills but does not claim to possess such skills, they will not owe the higher standard of the trained person unless a reasonable person would believe that an expert is required to perform such a task
Rogers v Whitaker (1992) 175 CLR 479
A specialist will owe a standard of skill of persons practising in that area of speciality
Imbree v McNeilly [2008] HCA 40
In relation to learner (and inexperienced) drivers, the High Court has in recent years held that a learner driver is expected to come up to the standard of care of the ordinary skilled driver even if the plaintiff passenger knows that the driver lacks that skill
Children
McHale v Watson (1966) 115 CLR 199
Young children are expected to exercise only the degree of care one would expect of a child of the same age and experience
Tucker v Tucker [1956] SASR 297
, if the child engages in adult activities the relevant standard may be that of the reasonable adult
The reasonable person
a reasonable person in the circumstances
Philips v William Whitely Ltd [1938] 1 All ER 566.
level of ‘reasonable care’, the courts repeatedly state that what conduct amounts to reasonable care must be measured according to the circumstances of each case
Broughton v Competitive Foods Australia Pty Ltd (2005) Aust Torts Rep ¶81-791
. The courts acknowledge that defendants may not recognise what is reasonable if the circumstances are such that they are acting under pressure
Professional Standards and Medical Standards
Bolam test
ordinary cases of medical negligence, proof that the doctor’s practice accorded with that of an accepted body of medical practice would be a defence against a negligence action
there was case law extending the principle beyond the medical profession
Rogers v Whitaker (1992) 175 CLR 479
criticism of the principle
High Court rejected the Bolam test in cases of failure to warn of risk or ‘lack of informed consent’. In such cases, doctors are required to disclose all material risks and the information necessary to understand them. ‘Material’ here means a risk that a reasonable patient in the plaintiff’s position might have considered significant.
standard of care required of professionals is now governed by s 22 of the CLA
stricter test than the Bolam
Has there been a breach of the standard
After the standard of care has been set the plaintiff must prove that the defendant has breached
Section 9(1) CLA provides that a person is not in breach of their duty of care
Foreseeable Risk
In order for the defendant to be liable in negligence, it is necessary that it was foreseeable that the kind of carelessness by the defendant might cause some kind of damage to the plaintiff. This requires the defendant to either know of the risk or that a person in their position ought to have known of the risk
Rosenberg v Percival (2001) 205 CLR 434
Special care must be taken to ensure that the risk is not foreseeable merely because of hindsight
Not Insignificant
Wyong Shire Council v Shirt (1980) 146 CLR 40
High Court held that for a defendant to be liable in negligence, the risk of injury must be reasonably foreseeable. That is, that the risk is not one that is ‘far-fetched and fanciful’
Shirt principle; far fetched and fanciful
The adoption of “not insignificant” was intended by the Ipp Report as a half-way house between “far-fetched and fanciful” and a higher standard such as “substantial” or “significant
Reasonable Response to the Risk
If a risk is foreseeable, the court has to then consider what the reasonable person’s response to the risk would be
‘calculus of negligence’
United States v Carroll Towing Co 159 F 2d 169 (1947)
if the probability be called P; the injury L; and the burden B; liability depends upon whether B is less than L multiplied by P; ie whether B is less than PL’.
Section 9(2) sets out the relevant calculus considerations under the CLA although it does not limit consideration only to the factors mentioned
Seriousness of risk and gravity of injury
For the ‘likely seriousness of the harm’, the courts assess the seriousness of the foreseeable potential injury. The greater the possible harm, the greater precautions may be expected from the reasonable person. However, greater magnitude of harm does not necessarily equate to a breach of duty; it is merely one of the factors to be taken into account.
Utility of Defendant’s act
E v Australian Red Cross Society (1991) 31 FCR 299
The justifiability or social utility of the defendant’s conduct is relevant to determining whether the standard has been breached
Likelihood of injury
Bolton v Stone [1951] AC 850
it was accepted that while a risk that is probable may mean the defendant needs to take greater care, if the probability of harm occurring is very low, it may be that the reasonable person would not take any precautions at all.
Cost of avoiding the harm
Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145
there has been some suggestion that commerciality of operations of the defendant might be relevant. In particular, that it might be reasonable to expect more of a commercial organiser of a sporting competition than a voluntary organiser of a sporting competition
Obvious Risks and Dangerous Activities
Div 3 and Div 4 of Chapter 2 of the CLA outline measures to limit liability in relation to risky and dangerous activities. These divisions apply in addition to the general principles of standard and breach outlined above.