5A. Defences - Professional SOC & Contributory Negligence Flashcards
Formal defence in professional SOC case and principle?
(Dobler v Halvorsen (2007) 70 NSWLR) • A formal defence that D complied with accepted professional standard is accepted.
Statute and content in regards to contributory negligence.
“5R STANDARD OF CONTRIBUTORY NEGLIGENCE o (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. o
“(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and”
“(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.”
What must be assessed in regards to 5R(2)?
- The objective standard - How much care would a reasonable person would have taken and whether they took less care. 2. There must be a casual relationship between the CNEG and DMG. (Scope of Risk)
Vairy v Wyong Shire Council on the DOC of P.
• It is not correct to say that D owes P DOC, but P owes no DOC to D or anyone else. The DOC by P is to take reasonable care for his or own safety. A duty to act in a way to may but him at risk, the knowledge that society has an obligation towards P
What needs to be considered in assessing the objective standard of care alone?
- Plaintiff idiosyncrasies
- The inconvenience of taking precaution
- The agony of the moment principles.
What are some of the circumstances which may be taken into account in assessing the reasonableness of the individual considered? Also state authority.
- Children’s age (Doubleday v Kelly [2005] NSWCA)
- Children’s intellectual disability (Goldsmith v Bisset (No. 3))
- A person old age, but harder to disprove CNEG as even a 83yo should have looked before crossing the road (Smith v Zhang [2012] NSWCA 142)
Principle and Authorty on inconvenience of taking precautions
o Reasonableness of P’s conduct takes into the account the inconvenience suffered if alleged CNEG conduct did not occur. If P where to not act which created the CNEG conduct, P would have suffered a serious inconvience. (Caterson v Commissioner of Railways (1973) 128 CLR 99) (Oh shit that’s my stop, Case)
o An agony of the moment or an emergency situation, the court will adjust the SOC for the purposes of CNEG. Under pressure in situation of fear and stress, the SOC of P is lowered than otherwise might be.
(Caterson v Commissioner of Railways (1973) 128 CLR 99) (Oh shit that’s my stop, Case)
Jones v Livox Quarries [1952] 2 QB 608 on scope of risk
• Riding on the towbar (GNEG conduct by P) is within the scope of risk of being crushed between two cars (Negligent act by D) as oppose to being hit by a hypothetical sportsman’s bullet (the not casual relationship). (Jones v Livox Quarries Ltd [1952] 2 QB 608 (CA))
(Imbree v McNeilly (2008) HCA 40) (Unexperienced and licensed 16yo - NT Case) on CNEG and ‘influence’?
o If a person in the position of a supervisor for a learner driver, in that they _failed to reasonably care for their own safety is a question of contributory neglig_ence. Negligence by the learner driver is not questioned. (Imbree v McNeilly (2008) HCA 40) (Unexperienced no licensed 16yo NT Case) A failure to supervise is important do decided cneg.
Name 5 recognised CNEG at CL.
- Failing to wear seatbelt. (Froom v Butcher [1976] 1 QB)
- Accepting a ride from an obviously intoxicated driver. (The Insurance Commissioner v Joyce (1948) 77 CLR 397)
- Failing to check for oncoming vehicles before crossing the road. (Tahneer v Australian Associated)
- Clinging on the roof rack of a moving vehicle (Asim v Penrose [2010] NSWCA 366)
- Giving control of motor vehicle to a child. (Zanner v Zanner [2010] NSWCA 343)
Which statute and section is the authority of the ‘last opportunity’ doctrine.
• Law Reform Miscellaneous Provision Act 1965 (NSW) Section 8 and 9
