Published on 18/05/2007

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Negligence Pt2

Breach of duty

The Calculation of the Negligence "Calculus"

S 5B The Civil Liability Act 2002

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.

Wyong Shire Council v Shirt (1980) per Mason J:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff… If the answer is in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do… The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.”

Waverley Council v Ferreira - Discussion of s.5B(2)

• Ipp JA (Spigelman CJ & Tobias JA agreeing)

45 The matters set out in s5B(2), in substance, are a reiteration of Mason J’s remarks in Wyong Shire Council v Shirt (1980)

51 Section 5B(2) provides a framework for deciding what precautions the reasonable person would have taken to avoid the harm and involves weighing the factors set out in ss5B(2)(a) and (b) against those in ss5B(2)(c) and (d) (subject, of course, to each being applicable in the particular circumstances of the case).

52 In my opinion, the probability as to whether a reasonable person would have taken precautions against a risk of harm (referred to in s5B(2)(b)) must be considered objectively by reference to the particular circumstances of the case (and the state of mind of the defendant is not relevant to this inquiry).

• Ipp JA (Spigelman CJ & Tobias JA agreeing)

53 ... s5B(2)(a) requires consideration to be given to the objective probability of harm occurring if care were not taken. In my view, there was a reasonable possibility of harm occurring if the fence and undergrowth were not removed and children were not prevented from using the fence or the undergrowth as a stepping stone to gain access to the roof. By s5B(2)(a), this possibility must be taken into account.

54 The likely seriousness of the harm, should the risk materialise, was severe injury or death (s 5B(2)(b)) (that is, in consequence of falling from the roof to the ground).

55 Garling DCJ found that the fence served no practical purpose and in my view he did not thereby err. There was a gate in the fence and the gate had no lock. It would not have been difficult to climb over the fence. There is nothing to suggest that there was a reason to retain the undergrowth. Both the fence and the undergrowth served no apparent utilitarian or aesthetic purpose and the burden of removing them would have been small (s 5B(2)(c)).

56 I have already mentioned that s5B(2)(d) (the social utility of the activity that creates the risk of harm) is not relevant in this case.

57 Weighing the factors set out in ss5B(2)(a) and (b) against those in s5B(2)(c), I conclude that a reasonable Council would have taken the precautions of removing the fence and the undergrowth and Garling DCJ did not err in so holding.

The Likelihood of the Injury

• Section 5B(2)(a) the probability that the harm would occur if care were not taken

• Bolton v Stone [1951]

Facts: At a cricket match, a batsman hit a six, which, 70 yards from the wicket, cleared a fence 7 feet in height and struck miss Stone who was standing outside her house across the street from the ground.
Held: (on whether the cricket club was negligent): Although the accident was foreseeable, the probabilities of such injuries were so light that a reasonable man would not have felt called upon to either abandon the game or increase the height of the fence. ‘the standard of care in the law of negligence is the standard of an ordinary careful man, but in my opinion, an ordinary careful man does not take precautions against every risk’ (per Lord Oaksey). ‘In my judgement, the test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellants, considering the matter from a point of view of safety, would have thought to refrain from taking steps to prevent the danger (per Lord Reid).

The Seriousness of the Risk and the Gravity of the Injury

• Section 5B(2)(b) the likely seriousness of the harm

Adelaide Chemical & Fertilizer v Carlyle (1940)

Facts: The company manufactured sulpharic acid in brittle containers. P’s husband was fatally injured when a container he was handling broke, spilling acid on him. After receiving treatment at the hospital, the deceased was told to report to a doctor the next day. The advice was not followed and P cared for her husband with preparations from the chemist. Her husband subsequently died from infections. He company found to be negligent, alleged the real cause of death was not the acid spill but the contact with the source of infection.

Held: (dismissed company’s appeal): ‘The sulphuric acid caused a physical injury to which the deceased’s death is traceable as a proximate and not remote consequence’ (Rich ACJ)

Paris v Stepney Borough Council [1951]

Facts: P was a garage hand employed by D and had already lost his sight in one eye after WW2. While working in a vehicle in D’s garage, P hammered a rusty bold and a chip of metal flew into his other eye causing him to loose his sight.

Held: D was negligent in not providing goggles for P, and that a greater duty of care was owed to P as the gravity of the damage suffered by P would be far higher than workmen having the use of both eyes.

The Utility of the Act of the Defendant

E. v Australian Red Cross Society (1991)
South Australian Ambulance Transport Inc. v. Walhdeim (1948)
Rigby v. Chief Constable of Northamptonshire [1985]

• Section 5B(2)(d) the social utility of the activity that creates the risk of harm.

South Australian Ambulance Transport Inc. v Walhdeim (1948)

The Cost of Avoiding the Harm

• Section 5B(2)(c) the burden of taking precautions to avoid the risk of harm

Caledonian Collieries Ltd v Speirs (1957)

Facts: P claimed compensation under the compensation to Relatives Act for the death of her husband. He was killed at a level crossing when the car he as driving was hit by a train of trucks that were running out of control down the steep gradient of a railway like owned and operated by the colliery under a private statute. Protective devices known as catchpoints which allow trains to drive in one direction, but cause a derailment to trains going in the other direction were not installed. It was argued for D that it was not practical to install this device as it would cause a hazard to trains moving down the gradient.

Held: The well settled principle applies that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, by their exercise, damages for negligence may be recovered. The colliery owed a duty to those using the roadway to exercise reasonable care for their safety. The problem of runway trucks on the line was a contingency likely at sometime e to occur and the jury at the trial were entitled to treat it as a possible danger against which precautions should have been taken.

The peculiar or particular background of the defendant

(i) infants:

McHale v. Watson (1964) - for minors, it is the standard of care to be expected of a child, not a reasonable man.

A 12 year old boy threw a sharpened piece of steel at a post. The projectile hit the P, a 9 year old girl and destroyed the sight of her right eye. On the allegation of negligence, Windeyer J (at fist instance in the 1964 proceedings) held that it was not required to disregard altogether that the D was only 12 yrs of age when deciding the standard of care of a reasonable man to be applied in the instance. P appealed from the judgement for D arguing that the standard of care to be exercised should not differ from that of an adult.

Held(on appeal): It was appropriate for the trial judge to consider D’s age in determining the standard of care to be applied, and the decision of WJ at first instance not to disregard this fact does not amount to a misdirection in law. Kitto J went on to state: ‘it is the standard to be expected of a child, meaning an ordinary child of comparable age…no that which is to be expected of an adult…’.

(ii) Lunatics:

Adamson v. M.V. Ins. Trust [1956] - Insanity is not a defence

Facts: Driven on by inane delusions that his workmates were going to kill him, D drove a stolen car against a policeman’s signal and knocked down p at a pedestrian crossing. D denied liability for negligence on the grounds of insanity.

Held (finding that D was insane a the time of the accident): D was responsible for negligence when he collided with P. ‘ I ca nfind no authority which would temper the view held by earlier writers that insanity is not a defence’ (Wolff SPJ).

(iii) Professional Persons:

Rogers v. Whitaker (1993) - Extent of duty

Facts: P successfully sued D following an eye operation alleging D failed to warn P that she might develop a condition known as sympathetic ophthalmia in her eyes as a result of the surgery, which she did, leaving her almost totally blind.

Held (dismissing the appeal): Except in the case of an emergency, or where disclosure would prove damaging to P, D had a duty to warn of the risks inherited in the treatment. The fact that a body of other reputable doctors would have acted in the same way as D did not preclude a finding of such negligence.

The dangerous nature of the activity

Adelaide Chemical & Fertilizer Co. v. Carlyle (1940) - P was involved in a fatal accident when a container of sulphuric acid broke as he was handling it,

The gravity of the injury to the particular plaintiff:

Paris v. Stepney Borough Council [1951] - the gravity of the injury was much more severe than that suffered by an ordinary man as the P who worked at a garage only had sight in one eye, and the loss of sight in the other eye caused him to be totally blind.

The current state of knowledge

Roe v. M.O.H. [1954]

Pre-existing knowledge of the defendant's incapacity:

What three defences might arise when P. knows that D. is unable to meet the normal standard?

Insurance Commissioner v. Joyce (1948) - contributory neg & assumption of obvious risk

Facts: Mr Kettle drove himself and his friend P to pick up Kettles wife and then to return to pick up P’s wife. The trip was 2 miles. They never arrived. Two hrs later the motor car crashed into a parked vehicle then into a fence. There were indications that liquor had been consumed. Kettle was found asleep under some bushes, drunk. Kettles insurer joined the action as a D. P claimed damages for Kettles negligent driving.

Held (dismissing P’s action): P was aware of the dangers and voluntarily assumed the risk. ‘The P’s case depends on his affirmatively establishing the proposition that his injuries were caused by the negligence on the defendant, Kettle. This conclusion, however, rests on inference from all the proved facts, and other inferences mentioned namely, contributory negligence on the part of he plaintiff [at that time a complete defence] and voluntary assumption of an obvious risk are equally consistent with those facts. Accordingly, it should be held that the P’s claim had not been established’ (per Latham CJ).

Cook v. Cook (1986) - Proximity – Contributory negligence

Facts: P invited her husbands stepmother, D, a person devoid of any driving skills or licence, to drive the motor vehicle to the local fish and chips shop. When she saw a parked car in her path, D deliberately accelerated and hit a pole causing injuries to P. The appeals court ordered judgement in favour of P but reduced her damages award by 70% by reason of contributory negligence.

Held (on appeal by D): D’s known incompetence as a driver was a controlling element of the relationship of proximity between the parties. That element took their relationship out of the ordinary relationship between the driver and passenger into a special category with a different standard of the duty of care. Actions seen as a result of that inexperience could not, of themselves, constitute a breach of that duty of care owed by D to P. However, the action of so accelerating to avoid the parked car was so careless tha tit would not merely be attributed to inexperience. Such carelessness contributed a breach of the duty of care owed by D to P.

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Proof of Negligence

Onus of Proof
Civil Liability Act s5E:

In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. .

Holloway v. McFeeters (1956)

Facts: The husband of the respondent died as a result of injuries sustained by him when his car was struck by an unidentified vehicle. The respondent sought to recover damages form a nominal defendant, based on the allegation made by inference from marks on the roadway etc, as there were no witnesses that the driver was driving in a negligent manner. The jury found a verdict in favour of the respondent but reduced the quantum by 50% holding, as they did, that the deceased was equally to blame. The question on appeal was whether there was any evidence upon which the jury was entitled to find negligence on the part of the unidentified driver.

Held: There was no evidence concerning the movements of either the vehicle in the critical few seconds before the impact. All sorts of possibilities as to how the accident may have happened can be imagined. The question is, whether it was reasonably open to the jury on evidence to find that the death of the deceased was caused, wholly or partly, by the negligence of the driver in the unidentified vehicle. All that is necessary is that, according to the course of common experience, the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the inquiry arose from the defendant’s negligence. Applying those principles, it was open to the jury to make such a finding.

· Res ipsa loquitur -“The action/thing speaks for itself”

Cassidy v. M.O.H. [1951] - Liability in contract of service

Facts: Dr Fahrini, who was in whole-time employment as an assistant medical officer at D’s hospital, operated on P’s hand to correct a contraction of the fingers. Following the operation the hand was placed in a splint and P came under the care of Dr Fahrini, the house doctor and the hospital nursing staff. When the splint was removed the hand was found to be useless. P sued D, alleging negligent treatment following the operation. D disputed whether it was responsible negligence of the surgeon or of the house doctor.

Held: On the facts both surgeon and house doctor had contracts of service with d. They were employed, like the nurses, as a part of the permanent staff of the hospital. Accordingly, D was vicariously liable for the negligence of its servants. Heir Lordships also discussed the distinctions between a contract of service and a contract for services.

Impact of the Civil Liability Act on the Duty of Care

The Civil Liability Act 2002 together with the Civil Liability Amendment (Personal Responsibility) Act 2002 govern the law of negligence in NSW.

– The Civil Liability Act 2002 was enacted 28th May 2002 and received assent on 18 June 2002

5B General Principles

(1) A person is not negligent in failing 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 to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.

* No proactive duty to warn of obvious risks

5F Meaning of "obvious risk"

(1) …an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks

(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

5H No proactive duty to warn of obvious risk

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff of the risk, or
(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

* No duty of care for recreational activities where risk is warned

5M No duty of care for recreational activity where risk warning

(1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

(10) The fact that a risk is the subject of a risk warning does not of itself mean:

(a) that the risk is not an obvious or inherent risk of an activity, or
(b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.

* Professional negligence

5O Standard of care for professionals

(1) A person practicing a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Austraila by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

* Mental harm

32 Mental harm – duty of care

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken

• Rationale behind the legislation:

– to limit the quantum of damages for personal injury and death in public liability instances; resultantly lowering insurance premiums.

– to discourage ‘over litigation’, by the imposition of restrictions and obligations and responsibilities upon plaintiffs and counsel

The Rationale for Reform

• It's my view that this country is tying itself up in tape because of over litigation, a long-term trend to see us litigate for everything, to try to settle every problem in our lives...by getting a big cash payment from the courts....a country as small as ours can't afford to have the American-style culture of litigation". (Bob Carr)

• ‘We need to restore personal responsibility and diminish the culture of blame.That means a fundamental re-think of the law of negligence, a complex task of legislative drafting. There is no precedent for what we are doing, either in health care or motor accident law, or in the legislation of other States and Territories. We are changing a body of law that has taken the courts 70 years to develop’ (Bob Carr)

The Approach to Reform:

Government’s View

• We propose to change the law to exclude claims that should never be brought and provide defences to ensure that people who have done the right thing are not made to pay just because they have access to insurance (Bob Carr)

• We want to protect good samaritans who help in emergencies. As a community, we should be reluctant to expose people who help others to the risk of being judged after the event to have not helped well enough (Bob Carr)

Civil Liability Act – Duty of Care for public authorities

* Limitations on duty of care

42 Principles concerning resources, responsibilities etc of public or other authorities

(a) the functions required to be exercised by the authority are limited by … financial and other resources that are reasonably available …
(b) the general allocation of those resources … is not open to challenge
(d) the authority may rely on evidence of compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions …

4P Proceedings against public or other authorities based on breach of statutory duty

(2) …an act or omission of the authority does not cnostitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions

* Nonfeasance protection restored. Non-feasance protection for highway authorities had been removed, but the CLA restores it.

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (removal)

Civil Liability Act 2002 s.45 (restoration)