Negligence ?Duty of care oEstablished or novel duty? oIs it a non-delegable duty? oWhat is the scope of the duty? ?Breach of duty oWhat is the relevant standard of care? oHas the standard been breached? ?Damage oIs it recognized by law? oWas the breach a necessary condition of the harm? oIs the harm within the scope of the defendant’s liability? Breach of Duty ?The fault part of the negligence action oAn act or omission of the defendant oA failure to act as a reasonable person would in the circumstances Two Stage Process oWhat is the relevant standard of care?
oHas the standard been breached? Onus of proof ?Plaintiff on balance of probabilities Standard of care ?Question of law ?Objective test- the reasonable person oGlasgow Corporation v Muir oMeasure the reasonableness not elimination of risk ?Swain v Waverley Municipal Council Change in the Standard ?Emergency oCivil Liability Act 2003 (Qld) ss 26 and 27 oAssistance to persons in distress by person performing duties for an entity as prescribed by the Civil Liability Regulation u u ? 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 u u ? 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? oState 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? oQuestion of law, objective test Glasgow Corp v Muir.
oCheck if facts indicate a possible change in standard oApply 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 oTame v New South Wales ?‘Reasonable foreseeability’ means not far-fetched or fanciful oWyong Shire Council v Shirt ?Cannot be foreseeable just with the benefit of hindsight Risk not insignificant? ?Adds to test of reasonable foreseeability oRF 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 of the harm: s 9(2)(a) ?Consider the probability of the harm arising not the conduct oRoads & Traffic Authority (New South Wales) v Dederer ?Foreseeable ? Probable oRoads & Traffic Authority NSW v Dederer Likely seriousness: s 9(2)(b) ?Assessed as at time of injury ?
The greater the harm that could befall a plaintiff if the risk of injury eventuates, the greater the precautions that are required of the defendant oAsk yourself, what is the worst-case scenario? ?Roads & Traffic Authority (NSW) v Dederer Burden of taking precautions: s 9(2)(c) ?Court has regard to the expense, difficulty and convenience of available precautions oCourt will balance cost, difficulty and inconvenience of taking precautions against risk of foreseeable injury oInability of the defendant to afford the precautions does not render the precautions impracticable oPracticability of precautions will depend upon all of the circumstances of the case.