Calculus of Negligence (Assessing Breach) Flashcards
Understand the weighing up of factors in the calculus of negligence (s5B(2)(a)(b)(c)(d)).
RTA v Dederer (2007) 324 CLR 330
Probability of harm s 5B(2)(a)
The risk was foreseeable and it’s magnitude grave, BUT the probability of that risk being realised was very low due to the history of no injuries on that bridge.
The measures Dederer’s solicitors proposed rejected as ineffective, expensive (s 5B(2)(c)) and likely to be ignored by local kids who already knew of the risk and didn’t need extra signage that likely wouldn’t deter them.
No breach of DoC found.
Paris v Stepney Borough Council [1951] AC 367
(UK case, but useful for understanding common law)
Gravity or seriousness of harm s 5B(2)(b)
D’s knowledge of P’s more serious risk of injury and particular vulnerability altered the care that D was required to provide and goggles should have been provided to P.
Breach of DoC found
Woods v Multi-Sport Holdings (2002) 208 CLR 460
Burden of taking precautions s5B(2)(c)
P = adult who voluntarily chose to participate in the game. There was no context of control in the relationship.
Full face helmets → no product for indoor cricket on the market and it wasn’t the standard adopted by other facilities or worn by the players elsewhere. The rules of the game do not provide for full-face helmets to be worn and more risks would be created by wearing the helmets (e.g. sliding and clashing into others wearing headgear with metal grills).
No breach of DoC.
Neindorf v Junkovic (2005) 222 ALR 631
Burden of taking precautions s5B(2)(c)
Issue: Was it a breach of duty by the household occupants to do nothing in response to the risk, where the risk was very ordinary, common and visible?
Reasoning: per Gleeson CJ “If doing nothing about a hazard were of itself sufficient to constitute negligence, there would probably not be an occupier of land in South Australia who could pass that test.”
No Breach of DoC because it is unreasonable to impose for ordinary, common and visible risks.
E v Australian Red Cross Society (1991) 27 FCR 310.
Social Utility of the risk creating activity s5B(2)(d)
Precautions alleged that D should have taken → should’ve done surrogate testing for HVC.
Social utility: Would have lost 5% of blood donations → serious consequences such as death of those relying on donor blood.
Obiter policy recommendations: Court said that P should be compensated by the state for bearing the risk of the transaction so that others in the state can have access to an adequate blood supply.
No breach.
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Social Utility of the risk creating activity s5B(2)(d)
“conflicting responsibilities” of the respondent that the court considered –> Preservation of the aesthetics of the natural environment & The need to fence off all similar cliffs within their jurisdiction
Because the respondent was a public authority, they were responsible for all the parks/reserves in the area and the expense of fencing all similar risks was an unreasonable burden to expect them to bear.
Vairy v Wyong Shire Council (2005) 223 CLR 422
Issue: Should a reasonable council in D’s position have provided a warning about the risks of diving from a rock platform, and/or prohibited diving from the rock platform? i.e. was the failure to take these precautions a breach of duty?
Reasoning: The relevant foresight prospective, not retrospective.
Although P’s injury was foreseeable, a reasonable council in D’s position could not be expected to mark and prohibit every point (along the 27 km of coastline for which they were responsible) where a person might jump into the water.
No breach.
RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
It was alleged that the RTA should have screened the bridge and every bridge like it at the time of the driver’s death. This is a retro-fitted duty that was held to be an unreasonable burden to place on the limited resources of a public authority.
Public authority → would not have to screen only that bridge, but every bridge in it’s jurisdiction.
No breach.
