Negligence: Breach Flashcards
What is the relevant standard of care? (Question of law)
Objective test: What would a reasonable person have done in the situation, taking into account all circumstances of the case Glascow Corporation v Muir
CHARACTERISTICS OF DEFENDANT
Children:
• Young children are expected to exercise only the degree of care one would expect from a a child of same age and experience McHale v Watson
Disability:
• Must be disregarded as standard is one of reasonable person Carter v Bonham
Skill
• A person having a special skill or knowledge above that of a reasonable person will be expected to attain the standard of a reasonable person with that skill or knowledge Rogers v Whitaker
• Where a task requires skill but defendant is inexperienced, there will be no change to the standard of care Imbree v McNeilly
Knowledge
• If a reasonable person would not possess the knowledge or skill, it cannot be argued that the knowledge or skill sets the standard Dovuro Pty Ltd v Wilkins
Intoxication
• A reasonable person is a sober person Joslyn v Berryman
CHARACTERISTICS OF PLAINTIFF
Disability
A higher standard of care may be imposed. Paris v Stepney Borough Council
Skill and knowledge
May lead to decrease but will have to be weighted in setting the standard of care. Bus v Sydney Country Council
Children
May impose a higher standard of care. Shellharbour City Council v Rigby
Was the standard breached? (Question of fact)
• s9 of Civil Liability Act 2003 (Qld) Wyong Shire Council v Shirt
A person does not breach a duty to take precautions against risk of harm unless
• the risk was foreseeable CLA s9(1)(a)
• Risk was not insignificant CLA 9(1)(b)
• Circumstances where reasonable person in position of person did not take precautions CLA s9(1)(c)
- Was the risk foreseeable? s9(1)(a) CLA
- Must be foreseeable that the kind of carelessness might cause some kind of damage to plaintiff. Tame v NSW
- Risk must not be too far fetched or fanciful Wyong Shire Council v Shirt
- Defendant cannot be held liable for risk which they neither had knowledge of nor ought to have known. Annetts v Australian Stations Pty Ltd
- Was the risk of harm not insignificant? s9(1)(b) CLA
- Risk must not be far fetched or fanciful Wyong Shire Council v Shirt
- If clear risk, then clearly not insignificant Drinkwater v Howarth
- What would a reasonable person do in response to the risk? s9(1)(c) CLA
Probability of harm occuring s9(2)(a) CLA
• If risks are minimal then it may not be necessary to take precautions. Bolton v Stone
Likely seriousness of harm s9(2)(b)
• The greater the harm that could befall a plaintiff, the greater the precautions that are required of the def: Paris v Stepney Borough Council
Burden of taking precautions (practical alternatives): s9(2)(c)
• Court will balance cost, difficulty and inconvenience of taking precautions against risk of foreseeable injury: Romeo v Conservation Commission
- Social utility of risk taking activity s9(2)(d)
• Justifiability or social utility of defendant’s conduct is relevant in determining whether standard has been breached. Daborn v Bath Tramways Motor Co Ltd
5.Other Considerations
Professional Standards: s22(1) CLA
Medical Standards: s21(1)
Customary Standards: • Usual practice adopted by those engaged in same activity as defendant will not itself determine the standard of care since the usual practice may fall short of the objective standard required by law Mercer v Commissioner for Road Transport.
Statutory Standards: • A breach of statutory standard is not conclusive of breach, but may provide evidence of a breach. Tucker v McCann.
Anticipation: • Defendants may be required to anticipate negligent and even criminal conduct of others. Hale v Victorian Railway Commissioner
Emergency Situation: • An emergency may render an action reasonable that in other circumstances would not be considered reasonable Broughton v Competitive Foods Australia
Medical Emergency: s25 s 26 s27
