LLB240 Study Guide - Final Guide: National Coal Board, Causal Chain, Safeway Inc.
NEGLIGENCE TORTS:
1. DUTY OF CARE?
a. ONUS – placed on P, balance of probabilities (unless stated otherwise)
b. Established category v novel category:
b.i. Established categories:
b.i.1. Manufacturers to consumers (D v S)
b.i.2. Doctors and hospitals to patients (Rogers v
Whittaker)
b.i.3. Educational institutions (Commonwealth v
Introvigne)
b.i.4. Employers to employees (Bankstown Foundry Pty
Ltd v Braistina)
b.i.5. Drivers to road users (Bourhill v Young)
b.i.6. Occupiers to entrants (Australian Safeway Stores
v Zaluzna)
b.i.7. Builders to subsequent purchasers (Bryan v
Maloney)
b.ii. Novel categories (must refer to s 5B(1)):
b.ii.1. reasonable foreseeability: ‘real risk that injury of
the kind sustained by the P would be sustained either by
the P, as an identified individual, or by a member of a
class which included the P.’ – Jaensch
b.ii.2. salient features: vulnerability/control; knowledge;
physical proximity; indeterminacy of liability; legitimacy of
pursuing commercial interests; avoiding inconsistency of
law – Perre; Sullivan; Graham Barclay
c. Duty to take care – not a duty to ensure no injury occurs
2. BREACH OF DUTY:
a. Formulation of Standard – question of law
a.i. Section 5B(1) – ‘foreseeable’ ‘not insignificant’ ‘reasonable
person in the person’s position’
a.ii. person of ordinary prudence – Vaughan
a.iii. children: limited capacity for foresight – McHale, Mullin
a.iv. mental incapacity: irrelevant if D was partly aware – Roberts,
Adamson
a.v. professional services: must be accepted as responsible within
profession – Bolam – s 5O-P of CLA
b. Breach of Duty – question of fact:
b.i. Section 5B(2) – ‘probability’ ‘likely seriousness’ ‘burden of taking
precautions’ ‘social utility of the activity’
b.ii. Least vulnerable individual within class must be safe – Paris
b.iii. Consider practicality of precautions – Romeo
b.iv. Profit can never be prioritised over safety – Watt
3. CAUSATION:
a. Causation of Damage – question of fact (s 5D(1)):
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Document Summary
Negligence torts: duty of care, onus placed on p, balance of probabilities (unless stated otherwise, established category v novel category: b. i. Occupiers to entrants (australian safeway stores v zaluzna) b. i. 7. Section 5b(1) foreseeable" not insignificant" reasonable person in the person"s position" a. ii. person of ordinary prudence vaughan a. iii. children: limited capacity for foresight mchale, mullin a. iv. mental incapacity: irrelevant if d was partly aware roberts, Adamson a. v. professional services: must be accepted as responsible within profession bolam s 5o-p of cla: breach of duty question of fact: b. i. Section 5b(2) probability" likely seriousness" burden of taking precautions" social utility of the activity" b. ii. Least vulnerable individual within class must be safe paris b. iii. Profit can never be prioritised over safety watt: causation, causation of damage question of fact (s 5d(1)): a. i. The q whether conduct is a cause of injury remains to be determined by a value judgement involving ordinary notions of language and common sense" march a. ii.
