In the tort of negligence the plaintiff must prove that the defendant owed them a duty of care, breached that duty and that damages were suffered as a result of a breach of that duty.
For Brooke to make a successful claim against the Yarra Valley City Council she must establish that a duty of care existed. Here the test of reasonable foreseeability must be applied. The question to be asked is whether a reasonable person would foresee that damage might result from the defendant’s action. It could be argued in Brooke’s case that the signs put up by the Council created a reasonably foreseeable risk of injury of some kind to someone such as herself. (See Chapman v Hearse 1961)
Before a duty of care can exist there must also be a proximate relationship between the parties. The proximity requirement involves the concept of nearness or closeness and includes physical, circumstantial and causal proximity. The relationship between Brooke and the Council is sufficiently proximate to give rise to a duty of care. The Council has a relationship of proximity with members of the public using the water under its control. (See Nagle v Rottnest Island Authority 1993)
The second element required to prove negligence is that a duty of care has been breached. To determine whether there has been a breach of duty the question must be asked whether a reasonable person would have foreseen the harm in the circumstances and taken steps to prevent it. The conduct of the defendant is measured against that of a reasonable person in the same circumstances. Special skills, permanent disability or age may alter the test. A council, which is responsible for the maintenance of a river such as the YVCC and where there exists a hidden danger, will owe a duty of care to warn people of foreseeable risks.
The law must then balance the degree of the risk and the likelihood of injury occurring, against the expense and difficulty of...