LAWS1203 Study Guide - Final Guide: Vicarious Liability, Breaking The Chain, Eggshell Skull
FRAMING ISSUE/EXAM ex: “H vs G: the central issue here is whether a continuing threat of battery implied by
a culture of workplace corporal punishment is sufficiently 'imminent' and non-conditional so as to satisfy the
element of a reasonable apprehension of imminent violence for the purposes of assault”
Duty of care
Define what is a duty of care – “for D to be liable in negligence P must show that he/she belongs to
a class of Ps of which the D must take reasonable care to prevent general harm…”
3 options:
1. Established DoC or established no duty case, then move on to breach
2. If the defendant made a clear positive act, reasonable foreseeability is enough. Prove RF then move
on to breach
a. But difficult to show causation if clear positive act has been shown
b. Chapman v Hearse, Sydney Water v Turano
3. Complex duty case – omission (RF is not enough Sullivan v Moody)
a. Must show one or more salient features
Breach
Define breach – “If a DoC is owed, P has the onus of proving (on a balance of probabilities) that a
reasonable person in the position of D would have taken … to avoid harm to the class of Ps of which
this P belongs”
1. Establish the breaching act: “In this case the P must prove a reasonable person in the D position
would have erected a fence to prevent….”
2. Establish the standard of care
oSoC is a reasonable person, that being reasonable a person with all the information in the
defendant’s position
oLowered by age McHale v Watson
oIncreased by special skills or abilities e.g. medical, architect
oNo effect – mental illness (Carrier v Bonham), inexperience (Imbree v McNeilly), intoxication
(s49(1)(a) CLA)
3. s5B(1) CLA – need to prove:
a. the risk was foreseeable s5B(1)(a)
a.i. Standard of foreseeability = kind of harm suffered was not ‘far-fetched or fanciful’
Wyong v Shirt
b. Risk was not insignificant s5B(1)(b)
c. In the circumstances, a reasonable person in D’s position would have taken those
precautions s5B(1)(c)
4. s5B(2) CLA – need to prove:
a. Probability s5B(2)(a)
b. Seriousness s5B(2)(b)
c. Burden s5B(2)(c)
d. Social utility s5B(2)(d)
Causation
1. Factual causation (‘necessary condition’)
a. S5D(1)(a) must prove that the D breaching act or omission was a necessary condition of the
harm
b. But for test Adeels Palace
c. Sufficient condition for the harm Amaca – if there is more than one condition that caused
the harm
2. Scope of liability
a. Show RF of the kind (not manner or extent) of harm suffered by the P. Wagon Mound No1
b. Not the manner or extent of the harm. Chapman v Hearse
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find more resources at oneclass.com
Document Summary
Define what is a duty of care for d to be liable in negligence p must show that he/she belongs to a class of ps of which the d must take reasonable care to prevent general harm . 3 options: established doc or established no duty case, then move on to breach. If the defendant made a clear positive act, reasonable foreseeability is enough. Standard of foreseeability = kind of harm suffered was not far-fetched or fanciful". Wyong v shirt: risk was not insignificant s5b(1)(b) c. In the circumstances, a reasonable person in d"s position would have taken those precautions s5b(1)(c: s5b(2) cla need to prove, probability s5b(2)(a, seriousness s5b(2)(b, burden s5b(2)(c, social utility s5b(2)(d) Chapman v hearse: you must take the victim as you find them. Doc rf of harm (any kind of harm) to a class of ps which the p is a part of.
