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LWB147 Lecture Notes - Week 8.docx

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LWb147 Week 8 Lecture Notes Standard of Care and Breach of Duty Negligence  There are three elements to negligence – a duty of care, a breach of that duty, and damages.  Last week we looked at duty of care.  This week will be focusing on the breach of that duty of care. Element 1: Duty of Care  In Torts A we will only look at established categories of duties of care, not novel duties.  Completed the self-directed learning materials in Week 7.  You must first state the relationship, the established duty.  Then provide the authority.  Then state the scope of the duty. How do we establish Element 2: Breach of duty of care?  Ask ‘what is the standard of care?’  Ask ‘has that standard been breached?’ Role of Judge and Jury  Glasgow Corporation v Muir [1943] AC 448 at 454  Swain v Waverley Municipal Council [2005] HCA 4  Manley v Alexander (2005) 223 ALR  Onus is on plaintiff on balance of probabilities to establish breach Finding the appropriate standard  The standard is a question of law.  Objective test: o “the standard of reasonable foresight of the reasonable man...eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question”: Glasgow Corporation v Muir [1943] AC 448 at 457 per Lord MacMillan Change in Standard  In some cases the standard may be changed to accommodate the specific situation, for example in an emergency situation a person’s ‘reasonable’ conduct may differ from non-emergency situations: Broughton v Competitive Foods Australia Pty Ltd [2005] NSWCA 168  CLA ss 26, 27 provide immunity for people offering aid to people in an emergency providing the people are not displaying reckless disregard. Characteristics of the Defendant  Children: standard of care is typically different for children than for adults, McHale v Watson (1966) 115 CLR 199. However if a child is engaging in an adult activity (such as driving a car) then the standard will be found similar to that of an adult, Tucker v Tucker.  Disability: Carrier v Bonham [2002] 1 Qd R 474  Knowledge: Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139  Possessing a skill: where a person possesses specific skills, such as medical skills, may raise the standard of care, Rogers v Whitaker (1992) 175 CLR 479 Lack of Skill  Imbree v McNeilly (2008) 236 CLR 510.  Overturns Cook v Cook.  Cook no longer law on the issue of standard expected of an inexperienced driver. Do the following facts raise or lower the standard of care, or no change?  Reasonable person would have knowledge but the actual defendant does not? o No change to the standard of care, Dovuro Pty Ltd v Wilkins.  Reasonable person would not have knowledge or the skill but defendant does? o Raise the standard of care, Rogers v Whitaker.  Task requires skill but defendant is inexperienced? o No change to the standard of care, Dovuro Pty Ltd v Wilkins.  Task requires skill or knowledge that a reasonable person would not have and defendant carries out the task? o Depends on if the defendant holds themselves to possess that skill – if they do, then it would raise the standard of care. If they do not, then there would be no change, Rogers v Whitaker. Characteristics of the Plaintiff  Disability: Paris v Stepney Borough Council [1951] AC 367  Skills/knowledge: Bus v Sydney City Council (1989) 167 CLR 78  Children: Doubleday v Kelly [2005] NSWCA 151  Intoxication: Cole v South Tweed Heads RLFC Ltd (2004) 207 ALR 52 Breach of Standard s 9(1)(a) Civil Liability Act 2003 (Qld): (1) 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) (b) The risk was not insignificant (c) In the circumstances, a reasonable person in the position of the person would have taken the precautions Common Law  Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40: a risk is foreseeable so long as it is not “farfetched or fanciful.” Determining whether standard breached 1. Was the risk foreseeable? 2. Was the risk not insignificant? 3. Would a reasonable person in the position of the defendant have taken the precautions? Foreseeable Risk  Tame v NSW (2002) 211 CLR 317  Rosenberg v Percival (2001) 205 CLR 434  Wyong Shire Council v Shirt  Chapman v Hearse (1961) 106 CLR 112  Romeo v Conservation Commission (NT) (1998) 192 CLR 431  Adeels Palace Pty Ltd v Moubarak Not Insignificant  Drinkwater v Howarth [2006] NSWCA 222  NSW v Fahy (2007) 232 CLR 486 Reasonable Response to the Risk  Probability that the harm would occur if care was not taken  Likely seriousness of the harm 
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