Nick Dowse Negligence

Negligence – Structure of Answer1. Is there a duty of care?

a. Identify established category, then cite authority. (Page 72 of Study Guide)b. State the scope of the duty.

2. Has the duty been breached?a. State that standard is an objective test, a question of law (Glasgow v Muir)b. State what the standard of care is (eg reasonable, competent, skilled..)c. Note any changes in the standard of care – characteristics of P or D

i. Emergency (Broughton v Competitive Foods)ii. D is child = lower standard (McHale v Watson)iii. D is physically disabled = lower standard (Roberts v Ramsbottom)iv. D has actual knowledge = may raise standard (s22(1) CLA (Qld))v. D has special skill = may raise standard (Rogers v Whittaker)vi. D’s inexperience will lower standard only if P knew or ought to have known of the

inexperience and voluntarily exposes themselves to that risk (Cook v Cook)vii. D holds themselves out to posses a skill but do not = may raise standardviii. P with known disability = may raise standard (Paris v Stepney BC)ix. P is intoxicated = does not change standard (Parsons v Randwick MC)x. P has special skill = may lower standard (Bus v Sydney CC)

d. State that breach is a question of fact.e. Apply s 9 of Civil Liability Act 2003 (Qld)

i. Was the risk of injury foreseeable? (s 9 (1)(a) CLA (Qld))1. Was some kind of damage likely? (Tame v NSW)

ii. Was the risk not insignificant? (s 9 (1)(b) CLA (Qld))iii. What would a reasonable person do in response to the risk? (s 9 (1)(c) CLA)

1. Probability? (Bolton v Stone) (s 9 (2)(a) CLA)2. Likely seriousness of harm? (Paris v Stepney BC) (s 9 (2)(b) CLA)

a. The magnitude or gravity of the harmb. Characteristics of P may be relevantc. Consider worst case scenario

3. Burden of taking precautions? (Romeo v Conservation Comm) (s 9 (2)(c))a. Cost, convenience, difficulty (Romeo)b. However, D financial position irrelevant (PQ v Red Cross)

4. Social utility? (Daborn v Bath Tramways) (s 9 (2)(d) CLA)5. Other relevant things (s 9 (2) CLA)

a. Professional standards? i. Consider s 22 of CLAii. For doctors, s 21 - excludes advice s22(5) CLA

b. Customary standards?i. Breach is not necessarily breach of duty. (Tucker v McKann)

c. Statutory standards?i. Breach is not necessarily breach of duty. (Tucker v McKann)

d. Anticipation of carelessnessi. Emp anticipate c’lness of emp’ee (McLean v Tedman)ii. Cannot anticipate everything (Derrick v Cheung)

f. State overall whether the duty has been breached.3. Has the P suffered actual damage?

a. Identify the damage that is suffered.b. Is it a form of harm recognised at law?

i. Illegality, too vague to assess (emotion), policy reasons = not recognisedii. Harm = personal injury, damage to property, economic lossiii. Personal injury = fatal injury, pre-natal injury, psychological injury, disease

c. Apply s 11 of Civil Liability Act 2003 (Qld)i. Is there causation in fact? (s 11 (1)(a) CLA)

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Nick Dowse Negligence1. “but for” test (March v Stramare)

ii. Is the risk within the scope of liability? (s 11 (1)(b) CLA)1. Is a question of law.2. P is one of a class of persons who might foreseeably be damaged by D’s

negligence?3. The damage suffered is of a kind that might foreseeably be caused by D’s

negligence?4. The victim is taken as found (egg-shell skull principle (Shorey))5. Legally significant cause of the harm suffered? (Pledge v RTA)6. Intervening cause?

a. Will only break chain of causation ifi. They are voluntary;ii. They are causally so independent as to be termed

coincidental;iii. As a matter of commonsense, and experience, they were

not the cause of the relevant loss or damageiv. Bennett v The Minister; Medlin v SGICv. s 11 (1)(b) and s 11 (4) CLA

d. State that onus of proof lies with the P in relation to causation (s 12 CLA).e. Loss of opportunity

i. Recognised in pure economic loss cases (eg when a solicitor fails to institute legal proceedings within the time limitation period – client can sue for loss of opportunity)

ii. Not in medical negligence (Chappel v Hart)f. Multiple tortfeasors?

i. Are joint concurrent tortfeasors if:1. Vicarious liability (emp emp’ee)2. Principle and agent3. Concerted or common action (Thompson v ACTV)

ii. Are several concurrent tortfeasors if:1. Independent acts or omissions combine to produce same loss or damage2. Champman v Hearse

iii. P may bring an action against each or all of the concurrent tortfeasors1. Each concurrent tortfeasor may seek contribution from the others2. Law Reform Act s 6

iv. The contribution recoverable is “to be just and equitable having regard to the extent of that person’s responsibility for the damage” (Law Reform Act s 7)

4. Come to overall conclusion as to whether or not there is an action in negligence.5. Defences to a negligence action

a. Contributory negligencei. Law Reform Act 1995 (Qld) s10: apportionment of fault and damages on the

basis of what the “court thinks just and equitable having regard to P’s share in the responsibility for the damage”

ii. D must prove: fault, foreseeable, causationiii. P at fault is a question of fact; objective test (s23 (2) CLA)

1. Establish standard of care (“reasonable, competent, skilled…”)iv. Foreseeable? Not insignificant? Seriousness? Precautions? Other relvnt things?v. Causation = P contributed at least in part to the damage (Gent-Diver v Neville)vi. s 24 CLA, court may reduce damages by 100% if just and equitable to do so.

b. Intoxicationi. Relevant provisions: s47 = P intox, s 48 = P relies on intox person, s 49 = D was

driver and intoxicatedii. Apply section and state whether P was intoxicated as defined in the Act.iii. Court presumes contributory negligence if P intox (s 47(2) CLA)

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Nick Dowse Negligence1. Can be rebutted?

a. Intoxication did not contribute to the breach of duty (s47(3)(a))b. Intoxication was not self-induced (s47(3)(b))

2. If cannot be rebutted, damages reduced by at least 25% (s47(4))3. If driving motor vehicle, damages reduced by 50% (s 49 CLA)

c. Volenti Non Fit Injuriai. State general rule. State what the risk is.ii. Is a complete defence as it negates the existence of a duty of care (Roots).iii. P is presumed to know of obvious risks (s 14 CLA)iv. P must accept both physical and legal risks in order to be considered volens to

the risk of harm (Smith v Charles Baker)v. Section 19 – Dangerous recreational activities.

d. Joint Illegal Enterprisei. State what it is.ii. If P & D involved together in illegality, defence will succeed (Jackson v Harrison)

e. Illegalityi. Section 45 – Criminals not to be awarded damages

1. Cannot be awarded damages if engaged in indictable offenceii. Applies only if P involved in indictable offence (s45 (1)(a) CLA)iii. P’s conduct must contribute materially to the harm (s45 (1)(b) CLA)

f. Volunteers acting in good faith carrying out work for a community organization will not be held liable for any act or omission (s 39).

g. Defendant bears onus in all matters relating to defences.6. Remedies for negligence action

a. Compensatory damages7. Onus and Time Limit

a. Onus is on plaintiffb. Limit for personal injury is 3 years (s11 Limitations of Actions Act)c. Limit for property damage is 6 years (s10 Limitations of Actions Act)

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REMEMBER: If the facts seem to indicate things considered in the calculus of negligence, focus on the BREACH element. If the facts seem to indicate intervening acts, or multiple tortfeasors etc, focus on the damage element of the action.