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Australian (NSW) Torts Law 2017: Western Sydney University > 2A. Breach of Duty of Care > Flashcards

2A. Breach of Duty of Care Flashcards

1
Q

5E ONUS OF PROOF

A

In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

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2
Q
  • Tacking questions on BDOC
A

Start with S5B(1), then 5B(2), then taking into consideration the SOC such as common law on children, mental illness, drivers, professionals (s5O) ect.

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3
Q

Roller-Skating on Trampoline Case

A

Doubleday v Kelly [2005] NSWCA 151

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4
Q

Enquire was the Foreseeable Risk.

What is considered is foresight in more general terms of risk of injury, it does not have to be specific type of injury

A

Doubleday v Kelly [2005] NSWCA 151

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5
Q
  • s5A
A

s5A - Defenitions

“harm” means harm of any kind, including the following:

(a) personal injury or death,
(b) damage to property,
(c) economic loss.

“negligence” means failure to exercise reasonable care and skill.

“personal injury” includes:

(a) pre-natal injury, and
(b) impairment of a person’s physical or mental condition, and
(c) disease.

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6
Q

5B and 5C are directed questions…

A

to Breach of Duty.

(Adeels Palace Pty v Moubarak (2009) 239 CLR 420)

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7
Q

5B GENERAL PRINCIPLES

A
  • “5B GENERAL PRINCIPLES
  • (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.”
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8
Q

… must be satisfied before finding BDOC

A

5B(1)

(RTA v Refrigerated Roadways PL [2009] NSWCA 263)

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9
Q
  • The ‘foreseeability test’ you have to stand in D’s position and look ________, cannot be said that simply because the harm materialized, therefore it was foreseeable. ‘Must stand before the incident, and see what was foreseeable from that position’
A

The ‘foreseeability test’ you have to stand in D’s position and look prospectively, cannot be said that simply because the harm materialized, therefore it was foreseeable. ‘Must stand before the incident, and see what was foreseeable from that position’

(Vairy v Wyong Shire Council (2005) 223 CLR 422)

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10
Q

P must establish either actual knowledge (The person knew) in the D of the risk of harm, or ….

A
  • or constructive knowledge (the D ought to have known) in the D, of the risk of harm. (Benic v NSW)
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11
Q

Actual knowledge/Special knowledge of P:

Particular or special knowledge of a risk of harm, such an employer’s knowledge that P was vulnerable to blindness as he already had one blind eye, will be determinative of foreseeability in question.

A
  • (Paris v Stephney Borough Council [1951] AC 367)
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12
Q

How was ‘Actual knowledge’ in 5B(1)(a) established in Benic v NSW

A
  • by the widespread of PTSD within NSW Police force, information was contained in the Commissioners instructions and published in the Police Service Weekly.
  • Thus commissioner knew or ought to have known the knowledge of these kinds of events of risk of harm (Benic v NSW)
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13
Q

How did public notoriety of risk of harm, public academic knowledge which might be expected to read by people in D’s position, obvious or likelihood of event as common sense establish 5B(1)(a) in (Benic v NSW)

A

‘ought to have known’ in 5B(1)(a)->(Benic v NSW)

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14
Q

“significant risk” in 5B(1)(b) is judged from the perspective of a reasonable person of D’s position, in prospect, not retrospect/hindsight.

A

(Stojan v Kenway [2009] NSWCA 364)

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15
Q

Overhead Bridge and Brick Case

A

RTA v Refrigerated Roadways PL [2009] NSWCA 263

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16
Q

The finding of criterion stated in 5B1c is satisfied(“in the circumstances, a reasonable person in the D’s positon [RTA] would have taken precautions” court must …

A
  • weigh competing considerations in 5B(2)
  • RTA v Refrigerated Roadways PL [2009] NSWCA 263) (_Overhead Bridge and Brick Case_)
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17
Q

in (Benic v NSW)

Considering 5B(1)(c) ‘taken precautions against the risk’ :

P was asked how he was and P’s denials that he was affected,

He could discharge his abilities without inadequacy

Ability to obtain promotion

The count found it reasonable to…

A
  • refrain from making a referral of P to Police Psychology Unit or any other form of intervention.
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18
Q

Section 5B(2)

A
  • 5B(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.
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19
Q

Whether measures need to be taken and what measures, is determined by inquiring all relevant circumstances. Usually, the gravity of injury that might be sustained, the likelihood of that injury occurring and the difficulty and cost of averting the danger are considered.

A
  • (Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421)
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20
Q

When determining SOC, one must position ourselves before the accident, and not after it.

A
  • (Vairy v Wyong Shire Council (2005) 223 CLR 422) (Water Diver quadriplegic)
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21
Q

Because the inquiry is prospective, all probabilities are considered by looking forward from the time before the accident that due weight can be given to what Mason J, in Shirt, referred to “consideration of the magnitude of the risk and the degree of the probability of the occurrence.”

A
  • (Vairy v Wyong Shire Council (2005) 223 CLR 422) (Water Diver quadriplegic)
  • Problem is that if court were to look back, it is easy to say what should have been done to prevent that injury where the judge would conclude that the sign should have been erected to prevent the divers
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22
Q
  • Known as the ‘calculus of negligence framework’

The calculus involves weighting (a) and (b) against (c) (d)

A
  • (_RTA v Refrigerated Roadways PL [2009] NSWCA 263) (Overhead Bridge and Brick Case_)
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23
Q

5B(2)(a)‘the probability that the harm would occur if care were not taken’

Foreseeability of risk on injury and likelihood of a risk occurring are two different things.

  • A risk of injury which is unlikely to occur my nevertheless be plainly foreseeable.

Therefore, a risk which is unlikely to occur can still satisfy the first limb of the BDOC test

A
  • (Wyong Shire Council v Shirt (1980) 146 CLR 40) (Dredge, Signage, water-skier Case)
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24
Q
  • On probability:
  • A reasonable man might have concluded that signage to warn swimmers might ambiguously interpreted by a water skier to mistakenly believe it to be deep water where it was shallow.

A reasonable man could conclude that shallow water could be unsafe for a water skier to use and contemplate the possibility of another bring injured.

A
  • (Wyong Shire Council v Shirt (1980) 146 CLR 40) (Dredge, Signage, water-skier Case)
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25
Q

‘the burden of taking precautions to avoid the risk of harm,

The requirement to erect a fence everywhere along the coast would be too much of a burden to an obvious risk of the cliffs to the defendant where the accident is very improbable.

A
  • (Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421)
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26
Q

Measures need to be taken and what measures (the burden), is determined by inquiring all relevant circumstances.

A
  • (Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421)
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27
Q

On burden: A reasonable council would not erect a sign at every point where danger occurs, such at every point where a person could enter the water to warn divers, as it would be too much of a burden.

A
  • . (Vairy v Wyong Shire Council (2005) 223 CLR 422) (Water Diver quadriplegic)
28
Q

Replacing all of the railings would be too expensive, added the evidence that the plaintiff not have definitely been deterred from jumping off the bridge

A

(RTA v Dederer)

29
Q

5B(2)(d)‘the social utility of the activity that creates the risk of harm.’

5B2d does not add anything novel to the law, it simply gives expression to the idea that some activities are more worth taking the risk for than others.

A
  • (Waverley Council v Ferreira [2005] NSWCA 418)
30
Q

In some cases, there is a need to evaluate the costs beyond just expenses and the burden of taking precautions, as the burden to take precaution could also be of great cost to society.

A
  • (E v Australian Red Cross Society (1991) 27 FCA) (AIDS Blood Transfusion Case)
31
Q

Even though the magnitude of risk is high, and the probability is low, the risks may not outweigh the social utility of the risk creating activity for the benefit of greater society.

A
  • (E v Australian Red Cross Society (1991) 27 FCA) (AIDS Blood Transfusion Case)
32
Q

The questions is whether “a prudent person in the position of RES would have determined that the concern for contamination outweigh the difficulties which would ensure from reducing the blood supply”

A

(E v Australian Red Cross Society (1991) 27 FCA) (AIDS Blood Transfusion Case)

33
Q

Despite the great magnitude of injury, and while the probability of injury is low, precautionary measure by RES if taken would have been of great detriment to society as the social utility would have outweighed the risk of injury

A
  • E v Australian Red Cross Society (1991) 27 FCA) (AIDS Blood Transfusion Case)
34
Q

‘other relevant things’ 5B(2)

A
  • May include safety standards, policies, rules, normal industry practice.
35
Q

A reasonable person in the homeowner’s position would not have taken precautions against the risk of harm because, even though the risk of harm was serious, and the burden of taking precautions was slight, the risk of harm of eventuating is low as it is not unusual for potentially hazardous objects to he left on lawns, and only highly inattentive visitors would trip is daylight (as oppose to front paths or driveway

A
  • (Sibraa v Brown [2012] NSWCA 328)
36
Q
  • 5C Other principles (In proceedings relating to liability for negligence):
    • (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

This section must be considered in the proceedings in relation to negligence

A
  • (RTA v Refrigerated Roadways PL [2009] NSWCA 263) (Overhead Bridge and Brick Case)
37
Q

Section 5C provides that a court must take consideration of the responsibilities of the defendant

A

(RTA v Refrigerated Roadways PL [2009] NSWCA 263)

38
Q

The burden of precaution is not to be narrowly construed but must have regard to the burden of taking precautions against similar risks of harm

A
  • (Waverley Council v Lodge [2001] NSWCA 439)
39
Q

The ‘foreseeability test’ you have to stand in D’s position and look prospectively, cannot be said that simply because the harm materialized, therefore it was foreseeable. ‘Must stand before the incident, and see what was foreseeable from that position’. Although, P’s injury was foreseeable, a reasonable council on D’s position could not have been expected mark and prohibit every single point along the 27km coastline for which they are responsible where a person may jump into the water and suffer injury.

A
  • . (Vairy v Wyong Shire Council (2005) 223 CLR 422)
40
Q

5C Other principles

  • (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
  • “Duty is not of an insurer but a duty to act reasonably “
A

(Romeo v Conservations Commission of the Northern Territory)

41
Q
  • Other principles (In proceedings relating to liability for negligence):
  • the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”
A

5C(c)

42
Q

5C IN APPLICATION AT COMMON LAW:

There are limits of a burden that can be placed on an authority. The cost of burden for the RTA to retrofit every bridge before the date of the accident would not have been a reasonable burden to place on the limited resources of a public authority. Therefore, RTA did not BDOC

A
  • (RTA v Refrigerated Roadways PL [2009] NSWCA 263)
43
Q

REASONABLE FORESEEABILITY

Required for first limb of CL test for breach to be found

A
  • (Wyong Shire Council v Shirt (1980) 146 CLR 40)
44
Q

Identification of risk in RF is needed before assessing reasonable response.

A

(RTA v Dederer (2007) 234 CLR 330)

45
Q

Once DOC is established by reasonable foreseeability, need to determine what is the standard of care.

A
  • (Wyong Shire Council v Shirt (1980) 146 CLR 40)
46
Q

RF is that implicitly the risk is not far-fetched or fanciful.

For instance, it is foreseeable that a sign might induce people to believe that the water is deep and therefore safe for waterskiing, not the probability of someone being injured from that ambiguity

A

(Wyong Shire Council v Shirt (1980) 146 CLR 40)

47
Q

This itself will establish the existence of DOC. However, determining BDOC (Breach) the court must consider …

A
  • SOC (Standard of Care) and the calculus of negligence.
48
Q

REASONABLE FORESEEABILITY (RF) is Whether a reasonable man in D’s position foreseen that his conduct involved a risk of injury to P or class of person including P

A

(Wyong Shire Council v Shirt (1980) 146 CLR 40)

49
Q

Actual events as they happened are not considered, rather it is to foresight in more general terms in of the risk to a 7yo if she were to use the trampoline without adult supervision.

A

(Doubleday v Kelly [2005] NSWCA 151 also Chapman v Hearse

50
Q

The perception of the reasonable man’s response calls for a consideration of magnitude of risk and the degree and probability of its occurrence, along with expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which D may have.

A
  • Wyong Shire Council v Shirt (1980) 146 CLR 40
51
Q

Where the risk is obvious to a person exercising reasonable care, the notion that the occupier must warn the entrant about the risk is neither reasonable or just.

A
  • (Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421) (Drunk Girls and Cliffs Case)
52
Q

Assessing probability should correctly identify the probably of injury, rather than the probability of persons participating risky activities. For instance, the probability of people jumping of the bridge is high, however, as there had been no prior injuries, the probability of injury is low. Making risk of injury improbable.

A

(RTA v Dederer (2007) 234 CLR 330)

53
Q

A misdirection of risk could ascribe greater control to what the defendant actually has which is minimal control.

A

(RTA v Dederer (2007) 234 CLR 330)

54
Q

PROBABILITY OF INJURY ASSESSING PROBABILITY WHEN RISK IS REASONABLY FORESEEABLE.

When no one has fallen of a cliff in 100 years, the probability of the injury occurring from falling from a cliff would be very low.

A

Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421) (Drunk Girls and Cliffs Case

55
Q

It would be unreasonable for the defendant to erect fences everywhere along the coast for an injury which is reasonably foreseeable but with a very low probability.

A
  • (Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421) (Drunk Girls and Cliffs Case)
56
Q

Further measures to install new railing to prevent climbing on the bridge would be too costly which puts too high of a burden on the defendant.

A

(RTA v Dederer (2007) 234 CLR 330)

57
Q

Even when a duty of care exists, there may be no duty to warn when the risks are obvious

A

Woods v Mutli-sports Holdings PL (2002) 208 CLR 460

58
Q

The risk, in the confined space in which the game was played was obvious and well known to the plaintiff. Therefore, On the matter of warning, no duty to warn of an obvious risk.

A

Woods v Mutli-sports Holdings PL (2002) 208 CLR 460

59
Q

Warnings of a precise injury are not intended to be questioned

A

Woods v Mutli-sports Holdings PL (2002) 208 CLR 460

60
Q

CLA s 5H

A

No duty to warn of an obvious risk

61
Q

Where the risk of injury is objectively obvious, it would be reasonable for D to assume no one would fall from the cliffs.

A

Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421) (Drunk Girls and Cliffs Case

62
Q

Duty of care is to take reasonable steps to prevent injury, but steps do not extend to doing something in the presence of obvious risk.

A

(Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421) (Drunk Girls and Cliffs Case)

63
Q

No breach if reasonable person in D’s position would not acted differently

A
  • (TAME v NSW; Annetts v Australian Stations PL (2002) 211 CLR 317) (Incorrect blood test report/Dead son and cattle – PSYH Case.)
64
Q

There may be no breach if evidence suggests that the plaintiff would have not been deterred to engage in dangerous activity if extra signage to warn were erected

A

(RTA v Dederer (2007) 234 CLR 330)

65
Q
A

Australian (NSW) Torts Law 2017: Western Sydney University (14 decks)

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