2A. Breach of Duty of Care (Different Attempt)

Question 1

Section 5B (1)

Answer 1

• (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 r_easonable person in the person’s position would have taken those precautions_.”

Question 2

RTA v Refrigerated Roadways PL [2009] NSWCA 263

on 5B(1)

Answer 2

5B(1) must be satisfied before finding BDOC.

Question 3

Vairy v Wyong Shire Council (2005) 223 CLR 422 on forseeability in breach.

Answer 3

The ‘foreseeability test’ you have to stand in D’s position and look prospectively, cannot be said that simply because the harm materialized, therefore it was foreseeable. ‘Must stand before the incident, and see what was foreseeable from that position’

Question 4

Benic v NSW interpretation of CLA s.5B(1)

Answer 4

• Risk must be correctly identified provide the P must establish either actual knowledge (The person knew) in the D of the risk of harm, or constructive knowledge (the D ought to have known) in the D, of the risk of harm. (Benic v NSW)
• P must show D knew of risk of harm, OR, but reference to other facts, matters and circumstances ought to have known it.

Question 5

Doubleday v Kelly [2005] NSWCA 151 on forseeabiltiy of risk in 5B(1)(a)

Answer 5

What is considered is foresight in more general terms of risk of injury, it does not have to be specific type of injury.

Question 6

. (Paris v Stephney Borough Council [1951] AC 367) on actual knowledge of P

Answer 6

Particular or special knowledge of a risk of harm, such an employer’s knowledge that P was vulnerable to blindness as he already had one blind eye, will be determinative of foreseeability in question.

Question 7

How was actual knowledge (5B(1)(a)) established in Benic v NSW?

Answer 7

• was established by the widespread of PTSD within NSW Police force, information was contained in the Commissioners instructions and published in the Police Service Weekly.
• Thus commissioner knew or ought to have known the knowledge of these kinds of events of risk of harm.

Question 8

Benic v NSW on the lack of knowlege or “ought to have known”

Answer 8

• D will be held to the objective standard of a reasonable person.
• ‘ought to have known’ of risk of harm by common knowledge and experiences of others in the similar position of D, public notoriety of risk of harm, public academic knowledge which might be expected to read by people in D’s position, obvious or likelihood of event as common sense.

Question 9

Wyong Shire Council v Shirt on ‘class and general foresight’.

Answer 9

Whether a reasonable man in D’s position foreseen that his conduct involved a risk of injury to P or class of person including P.

Both can satisfy RF.

Question 10

Doubleday v Kelly [2005] NSWCA 151 on ‘class and foresight’

Answer 10

Actual events as they happened are not considered, rather it is to foresight in more general terms in of the risk to a 7yo if she were to use the trampoline without adult supervision.

Question 11

Stojan v Kenway [2009] NSWCA 364 on 5B(1)(b)

Answer 11

“significant risk” is judged from the perspective of a reasonable person of D’s position, in prospect, not retrospect/hindsight.

Question 12

The risk be ‘not insignificant’ imposes a more demanding standard than ‘Shirt Test’ by not very much

Case authority?

Answer 12

Shaw v Thomas [NSWCA] 169

Question 13

Benic v NSW on the significant of risk as per s 5B(1)(b)

Answer 13

Not relating to whether P would suffer short term harm, rather whether he would develop long term injury without appropriate early intervention.

Question 14

‘RTA v Refrigerated Roadways on ‘taking precautions against the risk’ in relation to 5B(1)(c) and 5B(2)

Answer 14

The finding of criterion stated in 5B1c is satisfied(“in the circumstances, a reasonable person in the D’s positon [RTA] would have taken precautions” court must weigh competing considerations in 5B(2))

Question 15

Bardsley v Batemans Bay Bowling Club on the ‘reasonable person’

Answer 15

• Personal element is removed. D might may be stupid or accident prone or sick, but this is irrelevant as the judge is saying what should have been done, not what could have been done.
• RP could also be what the judge should have done

Question 16

CLA - 5B(2)

Answer 16

• 5B(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.

Question 17

Romeo v Conservation Commission of NT on determining the what reasonable person would have done

Pre CLA determination of what a reasonabler person would have done

Answer 17

• Whether measures need to be taken and what measures, is determined by inquiring all relevant circumstances. Usually,
  
  • the gravity of injury that might be sustained,
  • the likelihood of that injury occurring and
  • the difficulty and cost of averting the danger are considered.

Question 18

Vairy v Wyong Shire Council (2005) 223 CLR 422 on 5B(2)

Answer 18

• When determining SOC, one must position ourselves before the accident, and not after it.
• Because the inquiry is prospective, all probabilities are considered by looking forward from the time before the accident that due weight can be given to what Mason J, in Shirt, referred to “consideration of the magnitude of the risk and the degree of the probability of the occurrence.”
• Problem is that if court were to look back, it is easy to say what should have been done to prevent that injury where the judge would conclude that the sign should have been erected to prevent the divers

Question 19

What is the ‘calculus of negligence framework’, how does it work, which authority stated?

Answer 19

• The calculus involves weighting (a) and (b) against (c) (d) (_RTA v Refrigerated Roadways PL [2009] NSWCA 263) (Overhead Bridge and Brick Case_)

Question 20

Wyong Shire Council v Shirt (1980) 146 CLR 40 on ” ‘the probability that the harm would occur if care were not taken’

Pre CLA 5B(2)(a) interpretation of probability

Answer 20

Foreseeability of risk on injury and likelihood of a risk occurring are two different things.

• A risk of injury which is unlikely to occur may nevertheless be plainly foreseeable.
• Therefore, a risk which is unlikely to occur can still satisfy the first limb of the BDOC test

Question 21

1. In Wyong Shire Council v Shirt, how was ‘likely seriousness of the harm determined’?
2. How is this referred to in the CLA?

Answer 21

• A reasonable man could conclude that shallow water could be unsafe for a water skier to use and contemplate the possibility of another bring injured in a way where they would be ejected from the jet ski and suffer a serious injury such as quadraplegia - a very serious form of harm
• The seriousness of harm is now enshrined in CLA 5B(2)(b)

Question 22

Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421

on the burden to taking precautions, pre CLA.

Answer 22

The requirement to erect a fence everywhere along the coast would be too much of a burden to an obvious risk of the cliffs to the defendant where the accident is very improbable.

measures need to be taken and what measures, is determined by inquiring all relevant circumstances

Question 23

• Vairy v Wyong Shire Council (2005) 223 CLR 422) (Water Diver quadriplegic case) on the burden to taking precautions,

Answer 23

A reasonable council would not erect a sign at every point where danger occurs, such at every point where a person could enter the water to warn divers, as it would be too much of a burden.

Question 24

RTA v Dederer on burden

Question 25

The SOC is raised/lowered according to the effects which the proposed measure will have on society as a whole is a question of ... State statute and sections

Answer 25

**5B(2)(d)** - ‘the social utility of the activity that creates the risk of harm.’

Question 26

Waverley Council v Ferreira on 5D(2)(d)

Answer 26

5B2d does not add anything novel to the law, it simply gives expression to the idea that **_some activities are more worth taking the risk for than others._**

Question 27

Main authority on 'social utility', Pre CLA 5B(2)(d)

Answer 27

* **E v Australian Red Cross Society (1991) 27 FCA**) (**AIDS Blood Transfusion Case)**

Question 28

* **E v Australian Red Cross Society (1991) 27 FCA** (**AIDS Blood Transfusion Case) on 'social utility'**

Answer 28

1. In some cases, there is a need to **evaluate the costs beyond just expenses and the burden of taking precautions**, as the burden to take precaution **could also be of great cost to society.** 2. Even though the magnitude of risk is high, and the probability is low, the **risks may not outweigh the social utility** of the risk creating activity for the benefit of greater society. 3. The questions is whether “a prudent person in the position of RES would have determined that the concern for **contamination outweigh the difficulties which would ensure from reducing the blood supply**” 4. Despite the great magnitude of injury, and while the probability of injury is low, **precautionary measure by RES if taken would have been of great detriment to society** as the social utility would have outweighed the risk of injury.

Question 29

* **5C Other principles (**In proceedings relating to liability for negligence):

Answer 29

* (a) the **burden of taking precautions** to avoid a risk of harm includes the burden of taking precautions to **avoid similar risks of harm** for which the person may be responsible, and * (b) the fact that a **risk of harm could have been avoided** by doing something in a different way **does not of itself give rise to or affect liability** for the way in which the thing was done, and * (c) **the subsequent taking of action that would** (had the action been taken earlier) **have avoided a risk** of harm does **not of itself give rise to or affect liability** in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

Question 30

RTA v Refrigerated Roadways PL [2009] NSWCA 263) on 5C(a)

Answer 30

1. This section **must be considered** in the proceedings in relation to negligence 2. Section 5C provides that a court **must take consideration of the responsibilities of the defendant**

Question 31

Vairy v Wyong Shire Council (2005) 223 CLR 422 on 'foreseeability test' the ratio in that case.

Answer 31

The ‘foreseeability test’ you have to stand in D’s position and look prospectively, cannot be said that simply because the harm materialized, therefore it was foreseeable. ‘Must stand before the incident, and see what was foreseeable from that position’. Although, P’s injury was foreseeable, a **reasonable council on D’s position could not have been expected mark and prohibit every single point along the 27km coastline for which they are responsible where a person may jump into the water and suffer injury.**

Question 32

how does * **(Romeo v Conservations Commission of the Northern Territory) relate to 5C(b)** * *the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done*

Answer 32

Duty is not of an insurer but a **duty to act reasonably.**

Question 33

* ***5C(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”*** * ***How does this relate to Woods v Multisports?***

Answer 33

Even if D offered protection (helmets) or put up signs (warnings), P can’t lead evidence to lead those factors (protection or signage) to for D to admit liability. This would give D a disadvantage

Question 34

What are the CL headings for BDOC under 'Calculus of Negligence'

Answer 34

1. General - **Wyong Shire Council v Shirt** 2. PROBABILITY OF INJURY ASSESSING PROBABILITY **(RTA v Dederer ; Romeo)** 3. BURDEN ON D **(RTA v Dederer ; Romeo )** 4. OBVIOUS RISK **(Woods v Mutli-sports Holdings; Romeo )** 5. REASONABLE PERSON WOULD NOT ACT DIFFERENTLY **(TAME; RTA v Dederer)**

Question 36

**Wyong Shire Council v Shirt (1980) 146 CLR 40,** General CL Pre CLA test for BDOC. What is the 'calculus of negligence'?

Answer 36

The perception of the reasonable man’s response calls for a consideration of **magnitude of risk** and the **degree and probability of its occurrence**, along with **expense, difficulty and inconvenience** of taking alleviating action and any **other conflicting responsibilities** which D may have.

Question 37

**(RTA v Dederer (2007) 234 CLR 330)** on probability of injury under the calculus of negligence

Answer 37

1. Assessing probability should correctly i**dentify the probably of injury, rather than the probability of persons participating risky activities.** For instance, the probability of people jumping of the bridge is high, however, as there had been no prior injuries, the probability of injury is low. Making risk of injury improbable. 2. A **misdirection of risk could ascribe greater control** to what the defendant actually has which is minimal control. 3. Even though many people had jumped from the bridge without injury up until the respondent would make the **probability of injury very low as the ‘probability’** is the **probability of injury, rather than the ‘probability of jumping** off the bridge’

Question 38

* **Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421**) (**Drunk Girls and Cliffs Case**) on **probability** under the **calculus of negligence**

Answer 38

When no one has fallen of a cliff in 100 years, the probability of the injury occurring from falling from a cliff would be very low.

Question 39

* **Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421**) (**Drunk Girls and Cliffs Case**) on burden under the calculus of negligence

Answer 39

It would be **unreasonable for the defendant** to erect fences everywhere along the coast for an injury which is r**easonably foreseeable but with a very low probability**

Question 40

**RTA v Dederer (2007) 234 CLR 330** on burden on D under the calculus of negligence

Answer 40

Further measures to install new railing to prevent climbing on the bridge would be too costly which puts too high of a burden on the defendant.

Question 41

* **(Woods v Mutli-sports Holdings PL (2002) 208 CLR 460) on 'obvious risk'** in the 'calculus of negligence'

Answer 41

1. Even when a duty of care exists, there may be **_no duty to warn when the risks are obvious_** 2. The risk, in the confined space in which the game was played was **_obvious and well known to the plaintiff_**. Therefore, On the matter of warning, **_no duty to warn of an obvious risk._** 3. **_Warnings of a precise injury are not intended_** to be questioned.

Question 42

* (**Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 421**) (**Drunk Girls and Cliffs Case**) * On what is an obvious risk under the calculus of of negligence?

Answer 42

1. Where the risk is obvious to a person exercising reasonable care, the notion that the occupier must **warn the entrant about the obvious risk is neither reasonable or just.** 2. Duty of care is to take r**easonable steps to prevent injury**, but steps do **not extend to doing something in the presence of obvious risk.**

Question 43

* **(TAME v NSW; Annetts v Australian Stations PL (2002) 211 CLR 317**) **(Incorrect blood test report/Dead son and cattle – PSYH Case.)** * On what a reasonable person not acting differently

Answer 43

No breach if reasonable person in D’s position would not acted differently

Question 44

* **RTA v Dederer (2007) 234 CLR 330)** on what a reasonable person would not do different under the calculus of negligence

Answer 44

There may be no breach if evidence suggests that the plaintiff would have not been deterred to engage in dangerous activity if extra signage to warn were erected.

Question 45

Statute: Authority on the duty to warn of an obvious risk,

Answer 45

Section 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) ...