Breach of the Duty of Care

Topics: Tort law, Reasonable person, Negligence Pages: 5 (758 words) Published: April 27, 2015
Week 7 Breach of the Duty of Care

Negligence
Duty of care
Established or novel duty?
Is it a non-delegable duty?
What is the scope of the duty?
Breach of duty
What is the relevant standard of care?
Has the standard been breached?
Damage
Is it recognized by law?
Was the breach a necessary condition of the harm?
Is the harm within the scope of the defendant’s liability?

Breach of Duty
The fault part of the negligence action
An act or omission of the defendant
A failure to act as a reasonable person would in the circumstances

Two Stage Process
What is the relevant standard of care?
Has the standard been breached?

Onus of proof
Plaintiff on balance of probabilities

Standard of care
Question of law
Objective test- the reasonable person
Glasgow Corporation v Muir
Measure the reasonableness not elimination of risk
Swain v Waverley Municipal Council

Change in the Standard
Emergency
Civil Liability Act 2003 (Qld) ss 26 and 27
Assistance to persons in distress by person performing duties for an entity as prescribed by the Civil Liability Regulation

ü
û

Children
-Lower standard according to child’s age and experience
-McHale v Watson

Actual Knowledge
Judged as at time of incident

Skill
-Raises standard to take into account special skill
-eg doctor, specialist, trained persons
-Rogers v Whitaker
-If defendant holds themselves out to possess the skill, this raises the standard Disability
-Mental Carrier v Bonham
-Physical Roberts v Ramsbottom

Lack of Knowledge/ Ignorance

Inexperience
-Imbree v McNeilly

Characteristics of the Defendant

Characteristics of the Plaintiff

ü
û

Plaintiff with known disability
-Raises the standard
-Paris v Stephney Borough Council

Children
-Take into account age and experience

Skill/knowledge
-May lower the standard but must anticipate carelessness
-Bus v Sydney City Council
Intoxicated plaintiff
-Intoxication of plaintiff does not ‘increase or otherwise affect the standard of care owed to the person’ -Civil Liability Act 2003 (Qld) s 46(1)(c)

Does the defendant owe the plaintiff a duty of care?
Identify relationship, established or novel? Is it non-delegable? State scope and point out if alleged breach is within the scope

Has the defendant breached the duty of care?
What is the relevant standard of care?
Question of law, objective test Glasgow Corp v Muir
Check if facts indicate a possible change in standard
Apply to facts and state the standard

Breach of the Standard of Care
Civil Liability Act 2003 (Qld) s 9(1):
A person does not breach a duty to take precautions against a risk of harm unless -

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

Foreseeable riskNot significant Reasonable response to risk?

Was the risk foreseeable?
Defendant must have known or ought to have know of the risk of harm Tame v New South Wales
‘Reasonable foreseeability’ means not far-fetched or fanciful Wyong Shire Council v Shirt
Cannot be foreseeable just with the benefit of hindsight

Risk not insignificant?
Adds to test of reasonable foreseeability
RF too easily satisfied- “not far fetched or fanciful” not very demanding

Reasonable response to risk?

Civil Liability Act 2003 s 9(2):
(a) the probability that the harm would occur if care was not taken; (b) the likely seriousness of the harm;
(c) the burden of taking the precautions to avoid the harm; and (d) the social utility of the risk-creating activity.

…Amongst “other things”: statutory/ professional/ customary standards; anticipation

Referred to as ‘calculus of negligence’

Probability...
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