2B. Standard of Care

Question 1

• “Reasonableness” is a central concept of DOC and SOC. Duty is expressed in terms of protecting against unreasonable risk of harm. The standard of conduct is what is expected of a reasonable person, in foresight and taking precautions. People are not expected to live in a risk free environment. The measure of behavior is reasonableness, not elimination of risk. To some extend they are the neighbours keepers, but not neighbours insurers.

Answer 1

(Swain v Waverley Municipal Council (2005) 220 CLR 517)

Question 2

The standard is ‘reasonable care’ by law, not the prevention of harm. If D had to prevent, they would be liable in any case.

Answer 2

(RTA v Dederer (2007) 324 CLR 330 – HCA) (Kid jumps from bridge into shallow water case)

Question 3

The question of SOC is the reasonableness of warning, not the failure of warning.

Answer 3

(RTA v Dederer (2007) 324 CLR 330 – HCA) (Kid jumps from bridge into shallow water case)

Question 4

The Shirt requires a contextual and balanced assessment of reasonable response to a foreseeable risk. The criterion is reasonableness, not some more stringent requirement of prevention.

Answer 4

• (RTA v Dederer (2007) 324 CLR 330 – HCA) (Kid jumps from bridge into shallow water case)

Question 5

The SOC is to exercise reasonable care to see that something is safe for users who exercise reasonable care for their own safety. Therefore, a defendant does not owe a more of stringent duty to careless users.

Answer 5

• (RTA v Dederer (2007) 324 CLR 330 – HCA) (Kid jumps from bridge into shallow water case)

Question 6

The relationship between parties, and the context they entered into that relationship may be significant to determine reasonableness in terms of protection or warning to another. The relationship of control, such as employer/employee, teacher/student, have consequences to reasonably expect protection or warning. This is different from a relationship between a proprietor of a sporting facility and an adult who uses the facility for recreational purposes.

Answer 6

• (Woods v Multi-Sport Holdings PL (2002) 208 CLR 460 - HCA) (Cricket Injury Case)

Question 7

Where D knows of a particular vulnerability to greater injury to P, the potential consequences elevates the level of care required by D, despite the probability of injury is the same for everyone else.

Answer 7

Paris v Stepney Borough Council [1951] AC 367 - House of Lords.) (The One-Eye Fitter Case)

Question 8

The test for whether elevating the level of care is ‘what precautions would an ordinary, reasonable and prudent man take? And. Would a reasonable man be influenced by, not just greater probability of an accident, but also gravity of the consequences if the accident occurred.

Answer 8

• . (Paris v Stepney Borough Council [1951] AC 367 - House of Lords

Question 9

“No prudent man in carrying a lighted candle through a powder magazine would fail to take more care than if he was going through a damp cellar”

Answer 9

• (Paris v Stepney Borough Council [1951] AC 367 - House of Lords

Question 10

Higher degree of danger will require a higher standard of care. Degree of care requires things which is reasonable in the circumstances, which a reasonably prudent man would exercise.

(Sulphuric Acid Container Case)

Answer 10

. (Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514)

Question 11

· WHERE DOING NOTHING IS A REASONABLE RESPONSE

Houses contain hazards which is impossible to eliminate all risks. These risks of injury in houses are obvious and clear to all entrants. The law confirms that some risks, although foreseeable, no not need a response. Therefore, the SOC may mean that doing nothing is a reasonable response.

Answer 11

(Neindorf v Junkovic (2005) 222 ALR 631) (Garage Sale Slip Case.)

Question 12

STANDARD OF CARE OF CHILDREN, NEGLIGENCE

A normal 12-year-old boy would, and cannot be expected to have the perception of risk that an adult should have. The act was not done to intentionally hurt defendant, and that a reasonable 12-year-old boy would not expect this action to create this outcome.

Answer 12

• . (McHale v Watson (1966) 115 CLR 199) (BOY DARTS GIRLS EYE CASE)

Question 13

In the case of negligence by a child, the standard of care of a child may be judged by the objective standard to be expected of an ordinary reasonable child of comparable age

Answer 13

• (McHale v Watson (1966) 115 CLR 199) (BOY DARTS GIRLS EYE CASE)

Question 14

A child who engage in dangerous adult activity may need to conform to the standard of care of a reasonable adult.

Answer 14

(McHale v Watson)

Question 15

GENERAL PRINCIPLES DOB/BODC IN RELATION TO CHILDREN

There is no general principle that a young person can be classified as a grown adult who cannot be negligent in any circumstances.

Answer 15

• (McHale v Watson) (BOY DARTS GIRLS EYE CASE)

Question 16

STANDARD OF CARE OF PERSONS WILL MENTAL ILLNESS LACKING CAPACITY

The SOC of an adult lacking capacity cannot be judged by the objective standard of an ordinary reasonable person suffering from mental illness. Therefore, the SOC is not lowed below that of a ‘normal person’ because:

• Unsoundness of mind is not a normal condition thus not a stage of development experienced by everyone
• Impossible to devise a standard where a person who lacks capacity could be judged by
• Therefore, the SOC must be the objective SOC of an ordinary person.

Answer 16

(Carrier v Bonham [2002] 1 Qd R 474 - QCA) (Schizophrenia vs Bus Case)

Question 17

STANDARD OF CARE OF DRIVERS

LEARNER DRIVERS/INEXPERIENCED DRIVERS

Knowledge of inexperience can thus provide no sufficient foundation for applying standards of care to decide liability between one passenger or another, or applied SOC to other drivers or passengers.

Answer 17

(McNeilly v Imbree [2008] HCA 40) (16 unlicensed driver case)

Question 18

The reasonable driver is to be identified by what such a driver would do or not do, not by what authority a drive would need to have in order to drive lawfully.

Answer 18

• (McNeilly v Imbree [2008] HCA 40) (16 unlicensed driver case)

Question 19

P who is supervisor, P who is passenger, P who is another road user are all entitled to expect the learner driver will take reasonable care in operating a vehicle with the standard of a reasonable driver.

Answer 19

(McNeilly v Imbree [2008] HCA 40) (16 unlicensed driver case)

Question 20

DRUNK DRIVERS

In the case of a drunk driver, all standards of care are ignored because the drunk driver cannot be expected to act sensibly.

Answer 20

(The Insurance Commissioner v Joyce)

Question 21

• The scope of an inexperienced/unlicensed driver’s DOC will depend on their experience AND the degree of care one would objectively expect of a driver of a similar age.

D had limited experience parking the car at home known to P, thus P was entitled to some small degree of driving competence on the part of her son

Answer 21

(Zanner v Zanner [2010] NSWCA 343) (11yo Son collides into mother with family car case)

Question 22

STATUTE OF SOC FOR PROFESSIONALS WHILE IN SERVICE

A professional is not liable while in service if acted in a matter that was widely (at the time) accepted as competent practice

Answer 22

(CLA s 5O(1))

Question 23

Peer professional opinion not relied if it is irrational

Answer 23

(CLA s 5O(2))

Question 24

Differing peer professional opinion accepted in Australia does not prevent reliance of any of those opinions

Answer 24

(CLA s5O (3))

Question 25

Peer professional opinion does not have to universally accepted to be considered widely accepted

Answer 25

(CLA s 5O (4))

Question 26

Section 5O does not apply to liability in connection with the giving of or failure of giving a warning, advice, or other information in respect of risk of death or of injury associated with the provision by a professional of a professional service

Answer 26

(CLA s 5P)

Question 27

NSW Courts held CLA 5O provides a defence to a claim in negligence

Answer 27

• (Dobler v Helvorsen (2007) 70 NSWLR 151)

Question 28

COMMON LAW FOR SOC FOR PROFESSIONALS

The SOC will be that of a reasonable person possessing that skill.

Answer 28

(Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7) (Telephone Linesman killed by householder)

Question 29

A higher SOC is given to professionals and those with special skills as the reasonable person will possess the knowledge, experience, qualifications, and expertise of the specific class or type of D, rather than the individual D.

Answer 29

(Wagon Mound (No 2))

Question 30

The fact that D possess more than the average degree of skill due to his or her occupation and training raises the SOC.

Answer 30

(Roger v Whitaker (1992) 175 CLR 479) (ONE EYE SURGERY CASE)

Question 31

SOC OF MEDICAL PROFESSIONALS

The content of doctors DOC rests with the court, not medical opinion

Answer 31

• (Rosenberg v Percival (2001) 205 CLR 434)

Question 32

SOC OF MEDICAL PROFESSIONALS

SOC must give weight to the paramount consideration that a person is entitled to make their own decision about their own life.

Answer 32

(F v R (1983) 33 SASR)

Question 33

• The ‘Bolam test’ is applied in NSW for SOC, except in ‘failure to warn of risk’ cases.

“The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with practice accepted at the time proper by a reasonable body of medical opinion even though other doctors adopt a different practice. In short, the law imposes a DOC: but the SOC is a matter of medical judgement.”

Answer 33

• (Sideway v Board of Governors of Bethlem Royal Hospital cited in Roger v Whitaker) (ONE EYE SURGERY CASE)

Question 34

Duty to warn of material risks in medical context

There is a difference between the negligent failure to warn of risk, and negligently doing the procedure. The Bolam principle can only be applied to negligently doing the procedure, whereas the failure to warn requires the consideration of what is a material risk to a reasonable person.)

Answer 34

• (Roger v Whitaker (1992) 175 CLR 479) (ONE EYE SURGERY CASE)

Question 35

A decision to consent to a procedure is meaningless unless it is made with relevant information and advice.

Answer 35

(Roger v Whitaker (1992) 175 CLR 479) (ONE EYE SURGERY CASE)

Question 36

Duty to warn of material risks in medical context

There is a duty to warn of material risks by a professional medical practitioner to a patient. Material risks are what a reasonable person in the patient’s position would likely to attach significance to the risks in a treatment which is elective (optional)

Answer 36

• (Roger v Whitaker (1992) 175 CLR 479) (ONE EYE SURGERY CASE)

Question 37

Duty to warn of material risks in medical context

It is reasonable that a person with one good remaining eye to be concerned about injury to that eye makes the risk material, which requires a warning.

Answer 37

• (Roger v Whitaker (1992) 175 CLR 479) (ONE EYE SURGERY CASE)

Question 38

A patient who actively questions of possible risks has attached significance to the risk making a risk a ‘material risk’.

Answer 38

• Roger v Whitaker (1992) 175 CLR 479) (ONE EYE SURGERY CASE)