Exam Notes Did the defendant breach their duty of care towards the plaintiff? Standard of Care The defendant will have breached their duty of care if they fail to meet the standard of care that would have been shown by a reasonable person in avoiding or reducing the risk of injury to the plaintiff. Wyong Shire

• Wyong Shire Council v Shirt

Facts

o The council had dredged a small channel in the lake with warning signs saying DEEP WATER.

o Shirt assumed that it meant all of the water in the lake was deep and went skiing. He fell off while water skiing and struck his head on the bottom of the lake causing him to become a quadriplegic.

Held

o The council breached its duty of care because it was foreseeable

that the signs could be misinterpreted and lead to a situation such as that of the plaintiffs.

o Mason J discussed key elements in determining the standard of care:

§ Would a reasonable man in the defendants position foreseen that his conduct involved a risk of injury to

o The plaintiff; or o A class of people (including the plaintiff)

§ Then what would a reasonable man do in response of the risk.

o Dependent on the magnitude of the risk o Degree of probability of its occurrence. o The difficulty, expense and inconvenience of taking

alleviating action o Any other conflicting responsibilities

o A risk that is nor far-fetched or fanciful in real and therefore foreseeable

o A risk that is remote in the sense that it is unlikely to occur can still constitute a foreseeable risk

• Knowledge about the risk of injury and the precautions that could have

been taken against the risk discovered after the injury is not relevant in determining whether there has been a breach. Roe v Minister for Health

• Presumed attributes of reasonable person (see Glasgow Corp v Muir): o Ordinary intelligence and experience o Presumed to be free from over-apprehension and from over-

confidence o Independent of idiosyncrasies

• What person knew / was OR ought to have known / been o Adopt whichever test is higher (expected to live up to, not down

to, a reasonable standard of care)

Foreseeable Risk 5b(1)(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known) When the defendant actually knew of the risk of plaintiffʼs injuries then requirement that risk was easily foreseeable if satisfied. However if the defendant is unaware of the risk it will be whether a reasonable person in the position of the defendant would have foreseen the risk. Doubleday v Kelly

• Doubleday v Kelly

Facts

o Kelly was a seven-year-old girl staying overnight at a friends house. o Early the next morning Kelly and her friend decided to go roller-

skating on the trampoline, she had never been on one before and thought it was a hard surface.

o She fell of and did serious injury to her arm seeking compensation from her friendʼs parents.

Held

o The risk of injury was held to be reasonably foreseeable. It is not

necessary for the exact sequence of events (exact circumstances) that lead to the plaintiffs injury to be reasonable foreseeable, it is sufficient in general that the risk was reasonably foreseeable. Such as a child of seven using a trampoline without adult supervision.

Risk was not insignificant 5b(1)(b) the risk was not insignificant This idea was adopted over ʻfar-fetched and fancifulʼ because that standard was too low. However the risk that caused the plaintiffs injuries almost always satisfies both tests.

• Drinkwater v Howarth

Facts

o Howarthʼs friend was being escorted out of a hotel by two security

guards. o The security pushed the friend into Howarth resulting in both of

them falling to the ground and Howarth sustaining injury, especially to his ankle.

Held

o Requirement that risk be not insignificant was satisfied. There was

no material difference between the common law test (far-fetched and fanciful) and the statutory test. Hodgson JA

Reasonable person would have taken precautions 5b(1)(c) in the circumstances, a reasonable person in the personʼs position would have taken those precautions If determined that the risk was foreseeable and not insignificant then a court will need to determine what precautions, if any, a reasonable person in the position of the defendant would have taken to stop the risk from materializing. Vaughan v Menlove

• Vaughan v Menlove

o Facts

o The defendant built a haystack near the boundary of his premises, he was warned a number of times over a 5 week period that the hay stack was at risk of catching on fire.

o The haystack caught fire and destroyed the plaintiffʼs cottages. o The defendant argued that his liability should be assessed

according to whether he acted to his best judgment.

Held

o Subjective approach rejected. Man was liable as his conduct fell below the standard of care.

o Tindal CJ adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe.

Probability

5b(2)(a) the probability that the harm would occur if care were not taken; If the probability of risk of injury is very low it will be unlikely that the defendant will be found to be negligent in failing to take precautions against a risk of harm. Bolton v Stone • Bolton v Stone

Facts

o Stone was inured by a cricket ball while standing on the highway outside her house.

o A batsman on a cricket pitch adjacent to the highway hit the ball. o A tall fence protected the cricket pitch; evidence was given that it was

rare for a ball to be hit over the fence during a match.

Held

o The defendant did not breach their duty of care due to the very low probability that a cricket ball would be hit over the protective fence and hit a person outside the cricket field.

• Romeo v Conservation Commission of the Northern Territory CLR –

plaintiff injured when she fell off a cliff, under the influence of alcohol. No fence or warning sign where she fell. High Court held that the defendant had not been negligent, although there was a small but foreseeable risk that someone might fall over the cliff, it was deemed that a reasonable council would not have done anything to guard against the risk, because the burden of precautions to guard against that risk would have been unreasonable high. (also obvious risk and precautions)

Gravity 5b(2)(b) the likely seriousness of the harm The more serious the injury that could be caused by the defendants conduct then the higher the standard of care that a court will likely expect from the defendant Paris v Stepney Borough Council • Paris v Stepney Borough Council

Facts

o Paris, who was blind in one eye was employed as a fitter n the garage at Stepney Borough Council.

o While using a hammer to remove a bolt from a vehicle a chip flew into his good eye causing him to become totally blind.

o The council did not provide goggles despite knowing he only had sight in one eye. It was not normal practice for employers to supply goggles to employees.

Held

o The gravity of injury inflicted upon others is relevant in determining the

standard of care. Therefore the defendant owed a higher standard of care to Paris because the risk had more serious consequences for him.

• Where the gravity created by the risk of injury is very high then the

standard of care that a defendant will be required to meet may essentially amount to an obligation to compensate a plaintiff if the injury is sustained Burnie Port Authority v General Jones Pty Ltd

Practicability 5b(2)(c) the burden of taking precautions to avoid the risk of harm A defendant will not be found to have breached their duty unless it can be shown that a reasonable person in the position of the defendant would have taken specific precautions against the risk that caused the plaintiffs injuries. It is unlikely that there will be a breach in care if the only possible precautions that could have been taken against the risk would have involved excessive cost or inconvenience to the defendant. Caledonian Collieries Ltd v Speirs • Caledonian Collieries Ltd v Speirs

Facts

o Speirsʼ husband was killed at an intersection when a railway truck crashed into his car.

o Speirs argued that the defendant was negligent in failing to install catch-points on the railway line that would have derailed the railway truck and prevented the accident

o The defendant subsequently installed catch-points to prevent a similar event occurring.

Held

o The defendant breached their duty of care. Majority held that catch-

points would have been a reasonable precaution to take against the risk of injury.

o They would not have been impractical as they would not have cost a significant amount of money, they could have been quickly installed with only a minor interference and they would have not significantly interfered with the use of the railway line once installed.

Social Utility 5b(2)(d) the social utility of the activity that creates the risk of harm A defendant will be less likely to have breached their duty of care if their activities provide a significant benefit to members of the community. Sometimes the benefit to the community outweighs harm caused to individual plaintiffs. E v Australian Red Cross • E v Australian Red Cross

Facts

o E contracted the AIDS virus from a blood transfusion using blood supplied by the defendant.

o A test existed that could identify the virus but it would also incorrectly identify some blood as being unsafe for transfusion.

o If the defendant adopted the test it would have resulted in the rejection of approximately 5% of the total amount of blood produced by the defendant.

Held

o The defendant did not breach their duty and the social utility of the

defendantʼs activities was a key factor in this determination. o By adopting the test proposed by the plaintiff would have reduced the

amount of blood produced by the defendant by 5%, which could have serious negative consequences for the health of a significant number of people in the community.

o Although the injury sustained by the plaintiff was tragic it was inappropriate to find that the defendant was in breach, as this would have produced serious adverse effects.

Obvious and Inherent Risks Another factor (that may be) relevant in determining the standard of care is the obviousness of the risk that caused the plaintiffs injuries Romeo v Conservation Commission of the Northern Territory. S5F(1) an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. 5N . Injured person presumed to be aware of obvious risk

(1) In determining liability for damages for harm caused by the fault of a

person, the person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purpose of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5O . No duty to warn of obvious risk

(1) A person (the defendant ) does not owe a duty of care to another person (the plaintiff ) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if —

(a) The plaintiff has requested advice or information about the risk from the defendant;

(b) The defendant is required by a written law to warn the plaintiff of the risk; or

(c) The defendant is a professional and the risk is a risk of harm to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

• Imbree v McNeilly CL Requirements: Defendant must show that the plaintiff:

• Was aware of the risk; and • Voluntarily assented to that particular risk either:

o Expressly; or o Impliedly (very clear conduct required)

• Mulligan v Coffs Harbour City Council

Facts

o A young man suffered severe spinal injuries after diving into the water and hitting his head on the sand

o He sued the Council for failing to warn of the risk involved in diving in the water

Held

o There was no breach of duty. o Callinan and Heydon JJ stated: it is only reasonable to be expected

that people will conduct themselves according to the dictates of common sense, which must include the observation of, and an appropriately careful response to what is obvious.

DEFINED IN 5E: inherent risk means a risk of something occurring that cannot be avoided by the exercise of reasonable skill and care

5P . No liability for harm from inherent risk

(1)A person (the defendant ) is not liable for harm caused by the fault of that person suffered by another person if the harm is the result of the occurrence of something that cannot be avoided by the exercise of reasonable skill and care by the defendant. • Examples of inherent risks include being dumped by a wave while body

surfing, diving into the sea and medical operations involving a risk of injury that cannot be completely eliminated even if the operation is performed with a reasonable level of care and skill Mulligan v Coffs Harbour City Council 1. Knowledge and appreciation

• Requires actual knowledge on part of the plaintiff – o Scanlon Smoked from the age of 15, 23 cigarettes a day for

around 20 years, she sued the company who made the cigarettes for negligence. Defence said she ought to have known, however she needed to have actual knowledge. However didnʼt go through because plaintiffʼs health deteriorated.

o Imperial Chemical Industries Two brothers in the course of their employment set off explosives and were supposed to shelter, however in this case they didnʼt shelter and got injured. Employees were aware of their regulations also another employee had disregarded the rules previously and they knew. Also there was nothing to gain from not taking the shelter.

o Centerbury Muicipal. Velodrome, two cyclists and people playing football in the middle, the football player went to get the ball and died after getting hit by a bike, the cyclist received permanent injuries. Cyclist did not have actual knowledge that that risk would arise

2. Voluntarily assented to particular risk • Consented to the particular thing being done –

o Smith Defendants were building a new railway. Plaintiff was an employee, he was working in a cutting near a crane which was moving rocks from the cutting to the wagon. Worked for a few months and he knew what was going on with the crane. Through the negligence of the crane driver a rock cam out of the crane and hit him. House of Lordʼs held that the fact that although he continued regardless of the danger did not preclude him from recovering. Consented to the cutting but not the negligence of the driver. Just because he took a job that was dangerous he did not voluntarily assent to the dangers.

o Carey. A bollard was placed in the middle of a walking path and the cyclist road into it. Even though the cyclist was aware of the risk there is no proof of knowledge that he voluntarily accepted the risk even though he knew it was there.

• Plaintiff only prevented from recovering in respect of the injury that results from the particular risk

o Kent two groups of teenagers were having a water fight, one sprayed the other, and each lot jumped into a different car, the cars took off one was driving to fast failed to turn a bend and crashed. Consented to a risk of getting wet and a risk of scrimmage, she did not consent to being driven to fast in a car.

o Rootes water skiers were doing figure movement called the Russian roulette, there was boat moored on one side, the boat pulling them was negligent in pulling them to close to the boat and not steering away and negligent by failing to warn them of the boat. Found he accepted the risk of potentially running into something but not the risk of negligently not being warned that he may run into it.

Express Exclusions of Liability Oran Park v Flessig

• The plaintiff-sustained injuries while he was go karting, came around a corner sustaining significant injuries because there wasnʼt enough padding where he crashed, he was there for a work party. Brought proceedings against employer, occupier of go kart rink, the company that hired the go karting raceway and also the sole controller of that company as well. However he signed a waver prior to the event, but it only applied to two defendants (occupier of the raceway and his company didnʼt have a waver). Found that the two defendants without the waver were liable and those that did werenʼt liable as there was a voluntary assumption of risk.

Recreational Activity S 5H No liability for harm from obvious risks or dangerous recreational activities Laoulach v Ibrahim

• Plaintiff was a passenger on a recreational boat, which was moored in Botany Bay (50 to 60 meters from the shoreline). Plaintiff dived off the boat and struck his head on the bottom of the bay and became a quadriplegic.

• Tobias AJA [151] Even though there was quite a low probability of this injury happening the risk of diving in and being injured was obvious in those circumstances

Shire of Gingin v Coombe

• Plaintiff involved in an accident driving a motorbike in the Lancelen Off Road Vehicle Area, he went over a steep ledge that couldnʼt be seen and was injured.

• Martin CJ there were more then one hazard coming over the edge of a dune and a reasonable person would have slowed down so they would have been able to stop after seeing what was on the other side

Inexperience and the standard of care Imbree

• Overruled cook v cook • A 16-year-old boy who had driven before but didnʼt actually have his Ls

but had driven before. He was driving on a dirt road and crashed, injuring his passenger.

• It must be accepted that learner drivers and inexperienced drivers owed to everyone else a standard of care so therefore they should owe the person in the car a duty of care as well.

• It doesnʼt matter that the plaintiff knew the person was inexperienced. Children and the standard of care The standard of care is lowered when the defendant is a child to take into account that children typically have a reduced ability to understand the risks of harm associated with various acts due to their limited experience and understanding McHale v Watson • McHale v Watson

Facts

o Watson, a 12-year-old boy, threw a sharpened metal rod at a wooden

post intending for it to stick to the post. o The metal rod either missed the post or glanced off and hit the plaintiff

in the face causing her to sustain serious injuries. Held

o Watsonʼs conduct was found to not be negligent as his conduct was

judged according to a lowering of the standard to that of a twelve-year-old boy.

o Normality is for children something different what normality is for adults Kitto J

 • Zanner v Zanner

o An 11-year-old boy was given permission by his mum to drive into the

garage which he had done a few times with his dad before. His shoe slipped and he accidentally pushed onto the accelerator instead of the break and hit his mum. She sued for negligence.

o An 11 year old at that stage of development would understand that you had to keep your foot on the break or the car would roll. Given the motherʼs knowledge that the child had done it a number of times with his father she had a degree of confidence. He was found liable.

The mentally ill and the standard of care The standard of care is not modified for defendants suffering from a mental illness. (More on pg. 50) • Adamson v Motor Vehicle Insurance Trust

Facts

o Burt, who suffered from schizophrenia, intentionally drove trough an intersection against signal and ran over Adamson

o Burt incorrectly believed that he was being chased by his work mates who wanted to kill him

Held

o Court held that the law should not allow a defendant to rely on their

mental illness to avoid being held liable for an injury that caused another to suffer.

Professionals and the standard of care

S5B(p) standard of care for professionals At common law the standard of care imposed on professionals was determined by the courts and not set by standards. For medical professionals the approach was that the court would determine the appropriate standard of care to impose with due regard given to medical professional opinion Rogers v Whitaker • Rogers v Whitaker

Facts

o Whitaker had been almost totally blind in her right eye since childhood. She lived a normal life

o She consulted Rogers, an ophthalmic surgeon 40 years after the injury. o She consented to an operation after rogers told her it would improve

the appearance of the eye and the sight in that ey.

o The operation not only failed but it also led her to develop sympathetic opthalmia, a condition that occurred in approximately 1-14000 patients. It caused her to lose sight in her left eye leaving her almost totally blind.

o The court held that Rogers had conducted the operation with an appropriate level of skill and care.

Held

o High court held the Rogerʼs was liable for Whitakerʼs injuries on the

basis that he had failed to warn her about the risks involved with the operation.

o The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment. Joint judgment

• Immunity is provided to advocates for court work and work intimately

related to the conduct of a case in court. DʼOrta-Ekenaike v Victoria Legal Aid (more on pg. 52)

Consenting plaintiffs and the standard of care In some situations the plaintiffʼs knowledge that the defendant is limited in their ability to exercise the standard of care of a reasonable person can result in a lowered standard of care being imposed Cook v Cook • Cook v Cook

Facts

o The plaintiff, Irene Cook, invited the defendant, Margaret Cook, to drive

a motor vehicle, knowing that the defendant had never had a license or permit.

o The plaintiff suffered serious injuries when the defendant deliberately accelerated in an attempt to avoid crashing into a stationary car, and crashed into a pole.

Held

o Defendant breached lowered standard of care by deliberately

increasing rather then decreasing speed. o It was appropriate to modify the standard of care to that which could

reasonably be expected of an unqualified and inexperienced driver considering that the plaintiff knew the defendant had limited driving skills, yet voluntarily undertook to supervise the defendant while she drove the motor vehicle. (More on pg. 53)