MLL213 Study Guide - Final Guide: Sydney Water, Breach (Security Exploit), Determinative
24 May 2018
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6 Breach of Duty of Care
FUNDAMENTAL PROPOSITIONS
This eleet deteies hethe D has ee egliget
The touhstoe of liailit is that of easoaleess
- D is not required to guarantee P will not be harmed, but must take reasonable
care to ensure harm does not occur. Duty is not an absolute duty; it is a duty to
take reasonable care.
S 55 Wrongs Act
The liability of D is not to be judged retrospectively, with the benefit of hindsight.
STATUTORY PROVISIONS AFFECTING DETERMINATION OF BREACH
DIV 2 WRONGS ACT SS48-50: contain provisions relevant to determining whether a breach
has oued. Headed dut of ae. This is apt to islead as piiples ae eidetl
directed to breach. Adeels (12)
Adeels Palace Pty Ltd v Moubarak (2009) (26)(40)(31)
• P was shot in a nightclub where there was no security. Claimed the club was liable for the act
because it was their responsibility to hire security.
• High court held that the lack of security was not a necessary condition of being shot and thus
the ut fo test fo ausatio as ot satisfied.
Derrick v Cheung (2001)
• Girl walked onto the road ad as hit a otoist. Claied that the otoist shoulde
foreseen the risk of pedestrians on the street.
• Held: no breach of duty as the motorist was simply driving with the flow of traffic and the risk
of people on the road was foreseeable but reasonable.
Vairy v Wyong SC
• P dove into ocean and suffered a major injury. Claimed others had gone before and were
fie; that the ouil shoulde eeted a sig.
• Held: Couil ould easoale foesee the isk ad shoulde eeted a sig
Sydney Water Corporation v Turano
• T was killed when tree fell when he was driving. Two children and wife in car.
• The High Court concluded that no duty of care was owed by Sydney Water to the plaintiff for
acts that it performed in 1981 because the injury to road users as a result of the tree's
eventual collapse was not a reasonably foreseeable consequence of the installation of the
water main.
•
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Important to identify the risk of harm. Lack of rules regarding the level of abstraction to be
applied when characterising the risk, though the trend is to characterise the risk broadly.
As at common law, the focus is not on the precise manner in which the injuries were
sustained, but rather the general risk that occurred.
A. REASONABLE FORESEEABILITY
D does need to foresee precise sequence of events: sufficient that D could
reasonably foresee the general risk of harm.
Determination of reasonable foreseeability must be based of evidence presented by
P, and must not be done with hindsight. Sydney Water.
Gulic v Boral Transport Ltd (2016)
• Despite Boral supplying the equipment, the Plaintiff making complaints about the equipment,
and having the right to direct the Plaintiff, the claim failed.
• Although a principal contractor potentially owes a duty to an employee of a subcontractor,
this duty is delegable and does not extend to providing a safe system of work.
• A general complaint about equipment will not usually assist a Plaintiff to establish liability
•
Wyong Shire Council v Shirt (1980) (48)
Doubleday v Kelly (2005)
• Little girl at frieds house ijued heself o tapolie usupeised; aed ot to use the
trampoline.
• Court held that risk was perfectly foreseeable and the warning fell dangerously below the
required standard of care.
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B. NOT SIGNIFICANT ‘ISKS
Reasonable foreseeability threshold considered too low: legislature introduced a
highe theshold: isigifiat isks ot opesale.
Defined in s 48(3):
- insignificant risks include, but are not limited to, risks that are far-fetched or
fanciful
- ‘isks that ae ot isigifiat ae all isks othe tha isigifiat isks ad
include, but are not limited to, significant risks
Not sigifiat isks ae those of a highe poailit that fa fethed o faiful
risks but a lower poailit that a sigifiat o sustatial isk
A risk that has a very low probability of occurring (a rare risk) might be classed as
isigifiat. Rogers v Whittaker.
C. REASONABLENESS
P must establish that it was reasonable to require the D to have acted in a way to
prevent the occurrence of the foreseeable, not insignificant, risk.
Two steps:
- What is the standard of care expected of the reasonable defendant?
- Did D fall below that standard of care? – deteied the alulus of
egligee and other facts such as personal responsibility and autonomy
Benic v State of NSW (2010)
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Document Summary
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