11. Breach of DOC (Negligence)

Question 1

What is the basic thing to do to prove a breach of DOC?

Answer 1

D’s action must be proven by P to fall below SOC likely to be taken by the reasonable man

Question 2

1st step

Answer 2

P claims that act/omission fell below SOC of reasonable man by applying s5B & Wyong Shire Council v Shirt

Question 3

s5B (of Part1A Negligence)

Answer 3

General principles

Question 4

s5B(1) a person won’t be N in failing to take precautions against a risk of harm unless

Answer 4

a) risk was foreseeable
b) risk not insignificant
c) in the circumstances, a reasonable person in person’s position would’ve taken those precautions

Question 5

s5B(2) in determining whether a RP would’ve taken precautions against a risk of harm, court must consider

Answer 5

a) probability of harm occurring if care not taken
b) likely seriousness of harm
c) burden of taking those precautions
d) social utility of the activity that creates the risk of harm

Question 6

s5C

Answer 6

other principles

Question 7

s5B(1)(a) refers to

Answer 7

whether risk was foreseeable (not farfetched/fanciful–> Wyong Shire Council v Shirt)

Question 8

s5B(1)(b) refers to

Answer 8

whether risk not insignificant –> Rogers v Whitaker

Question 9

s5B(1)(c) refers to

Answer 9

whether RP in P’s position would’ve taken those precautions

Question 10

s5B(2) refers to

Answer 10

how to determine s5B(1)(c), to determine whether a RP would’ve taken precautions against a risk of harm, court has to consider balancing considerations + any other relevant factors –> set out in Wyong Shire Council v Shirt

Question 11

s5B(2) (a) refers to

Answer 11

probability –> Bolton v Stone

Question 12

RTA NSW v Dederer

Answer 12

probability is about probability of the injury
(In this case the risk wasn’t the bridge but jumping off bridge into shallow water - since many had done this & only 1 had been injured, meant risk was very improbable)

Question 13

what else did RTA NSW v Dederer highlight?

Answer 13

The standard of care requires the defendant to exercise reasonable care to reduce risk. it does not require him to prevent the risk.

Question 14

what is the main case to discuss for probability

Answer 14

Bolton v Stone –> A D will unlikely be found N in failing to take precautions against a risk of harm if prob of harm occurring is v low. (In this case D didn’t breach DOC due to low probability that ball would be hit over fence)

Question 15

s5B(2) (b) refers to

Answer 15

likely seriousness–> paris v stepney Borough Council

Question 16

paris v stepney Borough Council

Answer 16

likely seriousness–> the more serious the injury that could be caused by the D’s conduct, the higher the SOC

Question 17

s5B(2) (c) refers to

Answer 17

Burden of taking precaution –> RTR NSW v Dederer

Question 18

RTR NSW v Dederer

Answer 18

Burden of taking precaution –>

Question 19

what did the romeo case highlight about social utility?

Answer 19

If the cost of taking precautions is $ to prevent an unlikely risk, the D is less likely to be held liable in negligence