LAW 1507 Lecture Notes - Lecture 5: Wyong Shire, Precedent, Australian Red Cross
23 May 2018
School
Department
Course
Professor
Breach (standard of care)
Always: Determining the standard of care is an objective test that can be adjusted depending
upon the circumstances of the case; It is a question of fact (Vairy v Wyong Shire
Council (2005) 223 CLR 422).
General: s 31/ s 32: As described in s 31 of the CLA, in determining the standard of care, the
court considers what a reasonable person in the defendant’s position would have done. S 32
provides the calculus of negligence in legislative form which assists in determining this.
Established duty: ss 31/ 32 of the CLA must be considered. However, the relevant standard of
care is that a driver would drive with due care, the court will therefore consider what a
reasonable, prudent driver would have done (Imbree v McNeilly). A prudent driver would not
have driven carelessly from the outset, as A did- he should have paid attention and not braked
heavily at the last minute. Therefore, A failed to meet the requisite standard of care and
consequently breached his duty of care to B.
Becomes mushed together with duty of care. At the breach stage we are asking ourselves to
what standard the defendant ought to have performed their duty – if they have failed to
meet that standard then they are said to have breached their duty of care
o Standard of care is an objective test that can be adjusted depending upon the
circumstances of the case. Question of fact, no binding precedent, must be decided
individually.
o The adjustment of the standard of care is not based upon particular idiosyncrasies of the
individual
the issue of reah of dut i a atio fraed i egligee is oe of fat. ‘esults are
fat sesitie (Vairy v Wyong Shire Council Council (2005) 223 CLR 422)
Two questions:
1. What precautions were available to avoid the risk of harm?
2. Would the reasoale perso i Ds positio hae take those preautios?
find more resources at oneclass.com
find more resources at oneclass.com
This is the legislative process to work through.
Lists everything the court will consider.
Part 6—Negligence
Division 1—Duty of care
31—Standard of care
(1) For determining whether a person (the defendant) was negligent, the standard of
care required of the defendant is that of a reasonable person in the defendant's
position who was in possession of all information that the defendant either had, or
ought reasonably to have had, at the time of the incident out of which the harm
arose.
(2) The reasonable person in the defendant's position will be taken to be sober unless—
(a) the defendant was intoxicated; and
(b) the intoxication was wholly attributable to the use of drugs in accordance
with the prescription or instructions of a medical practitioner; and
(c) the defendant was complying with the instructions and recommendations of
the medical practitioner and the manufacturer of the drugs as to what he or she
should do, or avoid doing, while under the influence of the drugs,
and, in that event, the reasonable person will be taken to be intoxicated to the same
extent as the defendant.
s 31(basic standard of care) is the method to be followed when answering a question
s32: How to determine what ought to have been done, that is begin with s32(1) – ask all of
these questions. Begin:
s32(1)(a): Yes AND
s32(1)(b): Yes
then:
s32(1)(c): How do we determine this?
By addressing the calculus of negligence – now given legislative form in s32(2)
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Always: determining the standard of care is an objective test that can be adjusted depending upon the circumstances of the case; it is a question of fact (vairy v wyong shire. General: s 31/ s 32: as described in s 31 of the cla, in determining the standard of care, the court considers what a reasonable person in the defendant"s position would have done. S 32 provides the calculus of negligence in legislative form which assists in determining this. Established duty: ss 31/ 32 of the cla must be considered. However, the relevant standard of care is that a driver would drive with due care, the court will therefore consider what a reasonable, prudent driver would have done (imbree v mcneilly). A prudent driver would not have driven carelessly from the outset, as a did- he should have paid attention and not braked heavily at the last minute.
