LAWS1113 Lecture 9

Negligence: Breach of Duty

General Notes

  • Statutes Trump Common Law, ergo CLA trumps Common Law
  • Relevant CLA sections on Breach: 9,10, 21, 22

Requirements for Breach

1. Threshold – harm must be reasonably foreseeable, otherwise no-one can be at fault

  • Only uses forseeability at the time of supposed negligence – doesn’t take the outcome of it or any future knowledge/events into account
  • Duty of Care – general forseeability of harm to a particular group – doesn’t have to be to a particular individual
  • Breach of Duty – specific forseeability of harm to the individual harmed
  • Threshold initially defined in Wyong Shire Council v Shirt as a risk that is not ‘far-fetched or fanciful’, since modified by the CLA to ‘not insignificant’
  • Effectively the same meaning, although perhaps a slightly higher bar (see Drinkwater v Howarth)

2. The Reasonable Person who sleeps around with other torts (or “Reasonable Man” in old cases)

  • CLA s9(i)(c) asks what would be foreseeable by ‘A reasonable person in the position of [the defendant]…in the circumstances’
  • Factoring in physical, temporal, etc. circumstances (if the reasonable person had been in that place, at that time, with the knowledge that the defendant had or ought to have had)
  • The “reasonable person” is a legal fiction, an “objective ideal” – an archetype without any faults
  • Skilled activity – held to the standard of a reasonably skilled practitioner of that particular activity (eg. If a nurse is performing surgery, held to the standard of a reasonably skilled doctor – if a learner driver is behind the wheel, held to the standard of a reasonably skilled driver)
  • Inexperience is not a defence
  • Incapacity or Illness MAY be factored in if they are unaware they are ill or incapacitated – eg. Held to the “standard of a competent driver who is unknowingly incapacitated”
  • Occupiers – same standard of duty to all people on their land, regardless of the reason they enter (including trespassers)
  • Children – held to the standard of an “ordinary child of comparable age” – approach the standard of the “reasonable person” as they approach the age of majority
  • Professionals – held to “generally accepted professional practices” by a “significant number” – not held to have breached a duty if they behaved in such a manner
  • Doctors – CLA s21 (the duty to warn) – allows for reasonable decisions on the part of the patient provided they have been warned of the potential consequences
  • Any and ALL information the patient requests to know MUST be given – a more nervous patient who asks more questions requires a higher standard of warning than someone who just wants the operation

3. Breach

  • Risk entails the probability of harm, and the magnitude of the potential harm
  • Countered by the cost of taking precautions to prevent it and the social utility of the cause of the risk
  • Example: Paris v Stepney Borough Council – blinded by lack of protective gear. Magnitude: One eyed man losing his only eye has a much higher magnitude than a Two eyed man losing an eye would, ergo a greater duty is owed to him regarding precautions
  • Example: Latimer v AEC – the costs of shutting down the entire factory sufficiently high that the chance of harm was outweighed – held no breach
  • Example: Watt v Hertfordshire – Fireman trapped under a vehicle because of risky operating procedures, but held not liable as the high social utility of rescuing was deemed to justify them.

4. Proof of Breach

  • Plaintiff must prove on the balance of probabilities ALL FACTORS
  • Must identify precise actions that constituted the breach, unless they are using res ipsa loquitur
  • Res ipsa loquitur only applies if:
    • … it ordinarily would not occur without someone's negligence;
    • … it in this instance probably did not occur without someone's negligence;
    • … it was caused by an instrumentality that was under the exclusive control of the defendant; and
    • … it was not caused in any way by the plaintiff (i.e., no contributory negligence).
    • Eg. Does not apply in the case of Schellenberg v Tunnel Holdings, as the accident could have happened without any negligence.

Relevant Cases

Wyong Shire Council v Shirt: No duty is owed if the risk is not reasonably foreseeable, only if the risk is not far-fetched or fanciful

Drinkwater v Howarth: No duty is owed if the risk is not reasonably foreseeable – a risk that is not insignificant (statute) or not far-fetched or fanciful (WSC v Shirt) is basically the same thing

Nettleship v Weston: The duty to exercise reasonable care and skill is an objective measure – a learner driver owes the duty of an experienced and competent driver.

Scholz v Standish: An unforeseeable disability will generally serve to decrease the duty owed (eg. A sudden bee sting will briefly reduce the duty owed by a driver)

Roberts v Ramsbottom: An unforeseeable disability will generally serve to decrease the duty owed, but as long as the driver remains conscious, they will still owe some duty

Mansfield v Weetabix: An unforeseeable disability will generally serve to decrease the duty owed (eg. A unrecognised glucose deficiency will briefly reduce the duty owed by a driver to that of a competent driver who is unknowingly incapacitated)

Neindorf v Junkovic: If the risk is sufficiently minor and the cost of removing all minor risks is high enough, it is reasonable not to take action to mitigate it. Leaving a 1cm overlap in the driveway as is was not a breach of duty.

McHale v Watson: The duty owed by a child is that of an average child of the same age. Throwing a dart at a wooden post was held to be considered reasonable behaviour for a 12 year old boy, so he was not liable when it glanced off and blinded a girl.

Rogers v Whittaker: A professional asked about complications owes a duty to inform of all potential risks. Surgeon didn’t identify potential blindness, was held to have breached their duty.

Bolton v Stone: A sufficiently unlikely event with a high cost of prevention is not a breach of duty if reasonable steps have been taken to mitigate, but not completely obviate it, and the action has a high social utility. A very rarely hit six went out of the grounds and hit a pedestrian, not liable.

Paris v Stepney Borough Council: The duty owed to an already disabled person is generally greater, as they are at greater risk. A greater duty is owed to a man blind in one eye to protect the other than to a regular worker.

Latimer v AEC: If the cost of mitigating a risk is sufficiently high, one may not breach their duty by permitting the risk to remain. Completely shutting down the factory to mitigate the floor being oily & wet after a flood was held to be less reasonable than working despite of it after sawdust had soaked most of the water up.

Watt v Hertfordshire CC: If the social utility of an act is high enough, it is much less likely to breach a duty normally owed. The fire brigade bringing the wrong vehicle to the scene of a nearby accident was held not to be a breach of duty because they were trying to rescue someone.

Norman v Spiers: Social utility makes it harder to breach a duty, but by no means impossible – speeding down the side of the road simply to refuel and get back to helping with the bushfire was not held to raise the bar high enough.

Relevant Legislation

CLA s9: (1) A breach of duty requires that the risk be foreseeable and not insignificant (2) The probability and seriousness of the risk must be weighed against the cost of precautions and social utility of the activity that creates it.

CLA s10: The risk must be the risk AT THE TIME OF THE INCIDENT – any changes or precautions made afterwards are irrelevant.

CLA s21: Doctors have a duty to give sufficient information about risks that a reasonable person would need to decide whether or not take the risk, AND any additional information the patient requests

CLA s22: If a significant number of professionals in the same field would have done something a particular way, there is no breach for doing it that way.