Breach+of+Duty

When determining the reasonable standard of care a court is only bound by statements of law made in previous cases, not statements of fact. The previous cases will only be persuasive, not binding: **//Qualcost (Wolverhampton) Ltd v Haynes//.**

A person is not negligent in failing to take precautions against a risk of harm unless
 * __Requirements for breach__**
 * à s.48(1)**
 * (a) The risk was foreseeable (that is the risk of which D or ought to have known);
 * Reasonably foreseeable is enough if not far-fetched and fanciful: **//Wyong County Shire//**
 * (b) The risk was not insignificant
 * (c) In the circumstances, reasonable person in the Ds position would have taken those precautions.
 * The Ds conduct is judged according to the standard of care that a person of ordinary prudence would exercise in the circumstances: **//Vaughan v Menlove//**


 * à s.48(3)**
 * Describes risks as either insignificant, significant, or in between.
 * Insignificant risks include those that are not far-fetched or fanciful.


 * à Reasonable Foreseeability**
 * TEST** – Was it reasonably foreseeable that the particular act or omission in respect of which breach is alleged might have harmed the P in some way?


 * Note:** the test is narrower than at the duty stage. The P must have foreseen that the specific act would harm the P in some way.
 * In order for there to be a BOD, the harm that eventuated must have been reasonably foreseeable: **//Wyong Shire Council v Shirt//**

What would the ‘Reasonable Person’ have done about the foreseeable risk of injury?
 * __The ‘Reasonable Person’__**


 * Note –** need to compare what the reasonable person would have done in the situation know the risk with what the D actually did – if they are different, there is a breach.


 * à Minors**
 * A child should be held to a lesser standard of care than an adult, a child could not be expected to have the same foresight, prudence or experience as an adult: **//McHale v Watson//**.


 * à Physical Disability**
 * If someone undertakes an activity they cannot physically do (e.g. a blind person driving a car), they will be negligent as soon as the activity begins, same applies to people who have warning (e.g. become dizzy and continue to drive).
 * Need to consider: (1) Ps knowledge; (2) the choices open to D; (3) the choices open to the P.


 * à Mental Incapacity**
 * Any mental illness that the D may be suffering from will not be prescribed to the reasonable person, they will be judged against the reasonable person: **//Adamson v Motor Vehicle Insurance Trust//**.
 * There may be an exception to //Adamson// if the P knows of the Ds mental illness.


 * à Inexperience/Modified Duty [Consensual Relationships]**
 * Learner drivers are to be held to the standard of a reasonable learner or inexperienced driver: **//Cook v Cook//**.
 * Exception exists where the P knew of the lack of experience, and subjected himself to it.


 * à Under the influence of drugs or alcohol**
 * **s.14(G) Wrongs Act** – in claim for damages for personal injury or death, the court must consider whether: the substances was consumed voluntarily; the level of intoxication; and whether the P was engaged in illegal activity.


 * à Special Skills**
 * Those with special skills must meet the standard expected of a reasonable person with those skills. (e.g. a surgeon must meet the standard of care of a reasonable surgeon, not the standards of a reasonable person per **s.58 //Wrongs Act//**
 * A person in training will be held to the standard of a qualified person: **//Wilsher//**
 * **s.58 Wrongs Act** - a person who holds himself out as having special skills will be held to the standard of a reasonable person who actually has those skills.


 * à At what time should the standard be determined?**
 * Need to look at the time the events transpired – e.g. look at the medical knowledge available at the time. The reasonable person could not take precautions if they were unaware of the risk and its possibility: **//Roe v Minister of Health//**.

Apply s.48(2) Wrongs Act – The Negligence Calculus:
 * __What is the reasonable standard of care?__**


 * à Probability of Harm**
 * When the risk of harm is very low, the reasonable person does less to guard against it, and thus it pushes towards the reasonable standard being lower: **//Bolton v Stone//.**
 * Probability of the harm needs to be taken into account with other factors, such as the practicality of avoiding harm and the gravity of the consequences if the risk were to eventuate: **//Romeo v Conservations Commission of NT//**.


 * à Likely Seriousness of Consequences**
 * The more serious the consequences of the risk that eventuates, the greater the degree of care that is necessary for the reasonable person standard to be satisfied: **//Romeo v Conservation Commission of NT//**//.//
 * The Ds knowledge of the Ps susceptibility will be taken into account when ascertaining the relevant standard. If they know then a greater standard of care is expected: **//Paris v Stepney Borough Council; Woodrow v Commonwealth//**.


 * à Practicality of Avoiding Risks**
 * The higher the cost, the bigger the burden, the less likely it is that the reasonable person would have taken those precautions: **//Caledonian Colleries v Spiers//**
 * Expense and inconvenience of taking precautions should be taken into account: **//Bressington//**
 * **s.49 //Wrongs Act//** - taking action to avoid risk of harm does not affect liability in respect of the risk and does not constitute an admission of liability in connection with the risk.
 * Also consider the information available at the time (e.g. HIV AIDS): **//E v Australian Red Cross Society//**
 * Adoption by the D of a precaution after the event to prevent its recurrence may be evidence of the practicability of a method of fulfilling the DOC: **//Caledonian Colleries//**


 * à Social Utility of Ds Activity**
 * The Ds goal in undertaking the activity has to be considered: **//Watt v Hertfordshire County Council//.**
 * Look at balancing the importance of saving someone with the risk and amount of harm possible to people in doing the activity.
 * A different standard of care applies to emergency vehicles than to ordinary vehicles: **//Watt//**
 * Consider whether the action was justifiable.


 * à Common Practice**
 * s.59(1) Wrongs Act –** a professional is not negligence in providing a professional service if it established that he acted in am nner that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field as competent professional practice.
 * **//Bolam// Principle:** doctor will not be liable if they conform to common practise of other doctors.
 * **s.59(2) –** a peer professional opinion cannot be relied upon by the D if the court regards that opinion to be unreasonable.
 * **s.59(3) –** so long as there is one peer professional opinion support the Ds action, it does not matter that opposing opinions exist.
 * s**.59(4) –** peer professional opinion does not have to be universally accepted to be considered as ‘widely’ accepted.
 * **s.60 –** s.59 does not apply to liability arising in connection with the giving (or the failure to give) a warning or other information in respect of a risk or other matter.

__e.g. Medical Professionals__ (1) a reasonable person in the Ps position would be likely to attach significant to it; or (2) the doctor knows, or ought to know, that this particular patient would be likely to attach significance to it: **//Rogers v Whitaker//**.
 * **s.59(1)** does not protect medical professionals for being in breach of duty for the provision of advice or information.
 * **s.50** – D owes a duty of care to the P to give a warning or other information to the P in respect of a risk or other matter, satisfies that the duty of care if the D takes reasonable care in giving that warning or other information.
 * In terms of medical warnings, there are number of factors that the court takes into account: **//F v R// per King**
 * The nature of the matter to be disclosed – i.e. complexity affects the explanation that is provided.
 * The nature of the treatment – i.e. degree of seriousness depends on amount of information to be disclosed.
 * The desire of the patient for information – the greater the desire, the more information a reasonable doctor will provide.
 * Temperature and health of the patient
 * The general surrounding circumstances – time available to a doctor may be relevant, such as in an emergency procedure.
 * Where Ds negligence consists of a failure to warn, P must show that they would have acted differently to avoid the harm if there had been warning (subjective test).
 * When providing information or advice, doctors must disclose all ‘material’ risks. A risk will be material if:


 * à Legislative Standards**
 * Failure to comply with a legislative standard is not conclusive evidence of a breach, but it relevant evidence: **//Tucker v McCann//**.
 * **s.49A –** The burden of taking precautions to avoid a risk of harm include the burden of taking precautions to avoid similar risks of harm for which D may be responsible. See **//Romeo’s case & Speer’s case.//**
 * **s.49B –** The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done. (It is not enough to show that someone is negligent, P must show that the reasonable person would have taken the precautions).
 * **s.49C** – The subsequent taking of action that would (had the action being taken earlier) have avoided a risk of harm does not itself: (1) give rise to or affect liability in respect of the risk; or (2) constitute an admission of liability in connection with the risk.
 * e.g. blood banks in the early 80s didn’t test of AIDS because it wasn’t know you could contract it through blood transfusions. P contracts AIDs as a result. A couple of years later, more is known and blood bank starts to test its supplies. This does not mean that they were negligent for not having tested in the 80s.


 * __Proof of Breach__**


 * à Proof**
 * The onus is on the P to prove that, on the balance of probabilities, the Ds negligence caused his or her injures. Proof by inference is acceptable proof.
 * **s.52 //Wrongs Act// –** makes it more difficult for the court to help Ps prove their claims by placing the burden on them making out causation.
 * Both primary facts (testimonies from witnesses which are directly proven) and inferences from primary facts (drawn from facts) are permissible: **//Holloway v McFeeters//**


 * à Res Ipsa Loquitur – ‘The Thing Speaks for Itself’**
 * Note –** Burden of Proof shifts from the P to the D.

Requirements:
 * 1) The accident was of a type where is unlike to occur without //someone// being negligent
 * It must be possible for an ordinary person to determine whether the accident would not normally occur if reasonable care was taken.
 * It is enough if negligence is the //most likely// cause of accidents of that type.

It is uncertain whether an employer can be said to have exlusive control of equipment to which the employee has access: **//Shellenburg v Tunnel Holdings//**.
 * 1) The accident was such that it is the D who is likely to have been negligent
 * Did the D have exclusive control over the object or events which caused the accident? D must have exlusive control: **//Mummery v Irvings Holdings.//**
 * It is not enough if someone else is just as likely as the D to have been responsible: **//Nesterczuk v Mortimore.//**


 * 1) The specific cause of the accident has not been established
 * The occurrence must be the sort of thing that would not normally happen without negligence: **//Shellenburg v Tunnel Holdings//.**


 * Note: Be very careful using this in an exam. It ONLY arises when there is no specific act or omission – it will probably only arise in a //Donoghue v Stevenson// snail in the bottle type of case – like a pie with glass.**


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