Breach of Duty Flashcards
Understand breach of duty and the standard of care required for children, mentally ill/disabled, professionals
Benic v State of New South Wales [2010] NSWSC 1039
Benic = former police officer, PTSD, suing Commissioner for lack of early intervention.
Garling J: The Commissioner had taken steps to address the incidence of psychiatric illness amongst police (Peer Support, the Unit etc). Benic didn’t reveal his struggles to his superiors and when asked he said he was fine. He also functioned normally in society. No Breach.
Causation was not proved (NICE guidelines).
Relieved employers to requirement to take affirmative action.
In future, questions of the effectiveness of early intervention for PTSD will rely upon the NICE guidelines and “evolving views within the mental health professions about the efficacy of early therapeutic intervention” (Freckelton, p.176). Before this, lack of early intervention was seen as a settled means of causation for developing PTSD.
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781; 156 ER 1047 at 784 (EX 781)
reasonable man
Alderson B: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 308-9
reasonable man
“What is considered to be reasonable in the circumstances of the case must be influenced by current community standards.”
Wyong Shire Council v Shirt (1980) 146 CLR 40
“A risk which is not far-fetched or fanciful is real and therefore foreseeable. But… the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty.”
“It does not follow that a risk that is unlikely to occur is not foreseeable.”
Doubleday v Kelly [2005] NSWCA 151
Roller skates on trampoline –> broken arm.
“What is to be considered is foresight in more general terms of risk of injury to a child of 7 years if she were to use the trampoline without adult supervision” (followed Chapman v Hearse; Mount Isa Mines Ltd v Pusey; Commonwealth of Australia v McLean) NOT the exact circumstances → “bizzare complexity but not an important one”.
McHale v Watson (1966) 115 CLR 199
Negligent children
Children can have a different standard of care because of their limited experience of the world that is normal to all people who have been through childhood.
Windeyer J: Followed Glasgow Corporation v Muir where Lord MacMillan said “The standard of foresight of the reasonable man is… an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.” –> childhood is not an idiosyncrasy.
McTiernan ACJ agreed. “[Y]oung children… are expected to exercise the degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience.”
Kitto J: Childhood inexperience is a “characteristic of humanity at his stage of development and in that sense normal. By doing so he appeals to a standard of ordinariness, to an objective and not a subjective standard.”
“Normality is, for children, something different from what normality is for adults…”
Menzies J dissenting.
Carrier v Bonham [2002] 1 Qd R 474
Qld Court of Appeal
Negligent people with mental illness and disability
Schizophrenic, bus, nervous shock, can’t drive bus anymore.
McPherson JA: Followed Kitto J’s reasoning in McHale v Watson “Unsoundness of mind is not a normal condition in most people, and it is not a stage of development through which all humanity is destined to pass. There is no such thing as a ‘normal’ condition of unsound mind in those who suffer the affliction… For that reason it would be impossible to devise a standard by which the tortious liability of such persons could be judged as a class.”
When acting in ‘normal’ society, “their conduct should be judged according to society’s standards including the duty of exercising reasonable foresight and care for the safety of others.”
Imbree v McNeilly; McNeilly v Imbree (2008) 82 ALJR 1374; [2008] HCA 40
Negligence of learners
16 year old, no license, drove, overturned car and severely injured passenger.
Cook v Cook was overturned.
The standard of care for learner drivers is that of the ordinary reasonable person.
Rogers v Whitaker (1992) 175 CLR 479
Negligence for professionals and those with special skills
HC: “The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill.” Bolam test.
Special training/knowledge/skill raises the standard of care.
A similar approach to this has been adopted in relation to architects, solicitors, engineers, accountants, and insurance brokers.
CLA legislation (NSW: s 5P) clarified –> modified version of the Bolam test. This modified standard does not apply where the professional has a duty to warn (as in Rogers v Whitaker.)
Bolam v Friern Hospital Management Committee [1957] WLR 582
A doctor isn’t negligent if he acts in accordance with aa practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice.
Standard of care is a matter of medical judgement.
