BSB111 Lecture 12: Negligence and vicarious liability part 2
Week 12 - Negligence and vicarious
liability part 2
Requirement 2: breach of duty
To determine if there has been a breach of duty of care – look at section 9 of the Civil
Liability Act.
Section 9(1) CLA – A person does not breach a duty to take precautions against a risk of
harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought
reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have
taken the precautions.
s.9(1)(a): Risk was foreseeable
(a) If the risk is not foreseeable, then no breach of duty of care
(b) s.9(1)(b): Risk was not insignificant
(c) If the risk was an insignificant risk, then no breach even if no precautions were
taken.
(d) Note also that ‘not insignificant’ ≠ ‘significant’ (a moderate risk would also be ‘not
insignificant’)
S.9(2): In deciding whether a reasonable person would have taken precautions (s.9(1)(c)),
the Court considers the following factors:
The probability that the harm would occur if care were not taken;
The likely seriousness of the harm;
The burden of taking precautions to avoid the risk of harm; and
The social utility of the activity that creates the risk of harm
Burden of precautions: if the defendant could have avoided the risk of injury by taking some
relatively simple precautions, their failure to take those precautions is likely to be a breach
of duty. (Whereas if the risk could only be avoided by taking onerous precautions, it is less
likely for there to have been a breach)
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