Breach of duty of care AND Causing harm

To refresh: proving negligence

Requirement one- Duty of care

Requirement two – Breach of duty of care

Requirement three: Harm caused by breach of duty

2

Requirement 2: Breach of Duty of Care

Once a duty of care is deemed to have been owed, it must be established whether it has actually been breached (just because the defendant owed the plaintiff a duty of care, it doesn’t mean that the defendant is responsible for plaintiff’s loss)

The question as to whether a duty of care has been breached is one of fact to be determined by considering the standard of care required from a reasonable person

3

When is a duty of care breached?

The standard of care is determined by looking at what a reasonable person would have done (or not done) in the same circumstances. Where a defendant has acted in an unreasonable way or their actions fell well below the standard expected they will be found to have breached their duty of care.

Examples of failure to meet a standard of care:

where a driver fails to keep a lookout and as a result runs into the car in front of them

where a driver is travelling too close to the car in front of them and fails to allow an adequate stopping distance between their car and the one in front.

4

Standard of care

The law measures the actions of the defendant against those of a reasonable person in order to determine whether the standard of care has been met

This is called the reasonable person test and it examines what the reasonable person in the defendant’s position would have done in all the circumstances of the case

In applying the reasonable person test, the court compares the conduct of the defendant with that of the ordinary and careful ‘person in the street’.

If the defendant’s conduct falls below the standard of a reasonable person they have reached their duty of care.

5

Identifying a breach of duty

Civil legislations in all jurisdictions (except Northern territory) provides that a person will not breach their duty of care precautions against a risk of harm unless:

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

The risk was not insignificant and

In the circumstances, a reasonable person would have taken precautions

6

Identifying a breach of duty- contd.

In deciding whether or not a reasonable person would have taken precautions against a risk of harm, courts need to consider:

Probability that the harm would happen if precautions were not taken

Likely seriousness of injury/harm

The burden of taking precautions to avoid the risk of harm – how practical was it to take precautions?

The social utility of the activity creating the risk of harm- justifiability

7

What is the degree of risk? The greater the risk that serious harm can be inflicted, the greater the precautions that the defendant will be required to take. In Bolton v Stone[1951] A.C. 850, [1951] 1 All E.R. 1078, a cricket club was not negligent when a ball was hit out of the ground and injured the plaintiff, because the likelihood of this occurring was so small that the defendant could not be expected to have taken precautions. In Miller v. Jackson ([1977] QB 966, [1977] 3 WLR 20, [1977] 3 All ER 338 however, the ball was hit out of the ground several times every season. In these circumstances, the club was expected to take precautions.

How practical are the precautions? In Wilson v Governor of Sacred Heart Roman Catholic Primary School (1997) EWCA Civ 2644 it was held that a primary school was not negligent in not employing someone to supervise the playground after the close of school hours and until all the children had left. In Haley v London Electricity Board [1964] 3 All ER 185, a blind man fell into a hole in the ground that was indicated by a visual sign. He became deaf as a result. It was held that it was foreseeable that a blind man would be walking on the street and the risk of him injuring himself justified the precautions of putting up a barrier. The test is a balance of reasonableness of precautions against the likelihood of injury being sustained.

What is the social importance of the defendant’s activity? If the defendant’s actions serve a socially useful purpose then they may have been justified in taking greater risks. Thus, in Watt v Hertfordshire CC (1954) 2 AER 368, the fire brigade was not negligent in getting the wrong vehicle to the scene of an accident because valuable time would have been lost in getting the best vehicle there to help. Since 26 July 2006, this consideration has had a statutory basis under section 1 of the Compensation Act 2006.

7

Requirements

The risk was foreseeable: to establish the existence of a duty of care, it is necessary to show that the plaintiff being affected by the defendant’s conduct was foreseeable. If the risk was not foreseeable, the defendant has not breached their duty of care.

Risk was not significant: If the risk was an insignificant one, the defendant has not breached their duty of care by failing to take precautions.

Person failed to do what a reasonable person would have done: in comparing the defendant’s conduct with that of a reasonable person (established by a reasonable person test), the court will take into account the probability of harm, the likely seriousness of harm, the burden of taking precautions and the social utility of the defendant’s activity.

8

Requirements- contd.

Probability of harm: If the risk of injury was so small that a reasonable person would not have done anything about it, the defendant has not breached their duty of care.

Greater the risk of injury, the higher the standard of care owed

Example: high risk of injury with driving

Example: High risk of injury water-skiing in shallow water

Example: Low risk of being hit by cricket ball when walking past cricket ground; higher risk of being hit by golf ball on golf course

9

Probability of harm – contd.

In some cases, the court will also take into account the obviousness of the risk in deciding whether or not the duty of care has been breached.

If an activity engaged in by the plaintiff is an obviously risky one, the defendant is less likely to be found to have breached their duty of care by failing to take steps to prevent the risk being realised.

10

Case example- Bolton v Stone [1951] AC 850

Facts: The plaintiff was injured after a ball from a neighbouring cricket pitch flew into her outside her home. The cricket field was arranged such that it was protected by a 17-foot gap between the ground and the top of the surrounding fence. Balls had been known to get over the fence and land in people’s yards, but this was rare, making the strike which hit the claimant exceptional. The plaintiff sued the cricket club in the tort of negligence for her injuries.

Issue: Establishing the tort of negligence involves establishing that the defendant owed the plaintiff a duty of care, which they breached in a manner which caused the plaintiff recoverable harm. To establish a breach of any duty owed, the plaintiff must establish that the defendant failed to act as a reasonable person would in their position.

The issue in this case was what factors were relevant to determining how the reasonable person would behave, and therefore when the defendant would be in breach of their duty of care.

11

Bolton v Stone [1951] AC 850

Held: The House of Lords held that the cricket club was not in breach of their duty. The following factors were held to be relevant to whether a defendant is in breach of their duty of care:

The likelihood of harm;

What precautions were practical for a defendant to take in terms of cost and effort;

Whether the defendant provides a socially-useful service.

In this case, the likelihood of the harm was very low, and erecting a fence any higher than the defendant had already done would be impractical. The cricket club was also providing a social useful service to the community. A reasonable cricket club would have, therefore, not behaved any differently.

12

The question of obviousness of risk also relates to whether or not the plaintiff has voluntary assumed the risk, a defence considered in more detail:

The likely seriousness of harm: if the possible harm arising from the carelessness act is not very significant then the defendant will owe a low standard of care and vice-versa.

The burden of taking precautions: if the defendant could have avoided risk of injury by taking some relatively simple precautions, their failure to take those precautions is likely to be a breach of duty. However, if the risk of injury could only have been avoided by taking significant, expensive and onerous precautions, it is less likely that the defendant will have breached their duty by failing to take those precautions.

13

The social utility of the activity: at the time that the defendant’s conduct was alleged to have caused harm to the plaintiff, was the defendant doing something that was socially useful? If so, it is less likely that they will be found to have breached their duty of care.

For example, an ambulance driver who is driving a patient to the hospital, and who is involved in a car accident, is less likely to be found to have breached their duty of care because at the time they were doing something useful.

14

Paris v Stepney Borough Council [1951] AC 367

Facts: The plaintiff had suffered damage to one of his eyes in war. He was employed in a garage, but was not provided safety goggles while working with dangerous equipment. As a result, he was blinded when a piece of metal hit him in his undamaged eye. The plaintiff sued his employer in the tort of negligence.

Issue: Establishing the tort of negligence involves establishing that the defendant owed the plaintiff a duty of care, which they breached in a manner which caused the plaintiff recoverable harm. To establish a breach of any duty owed, it must be established that the defendant failed to act as a reasonable person would in their position.

The issue in this case was what factors were relevant to determining how the reasonable person would behave, and therefore when the defendant would be in breach of their duty of care.

In particular, the defendant argued that it was not normal practice to provide (normally-sighted) employees with safety goggles, and therefore it was under no obligation to provide them to the claimant.

15

Paris v Stepney Borough Council [1951] AC 367

Held: The defendant was in breach of its duty of care to the plaintiff.

The seriousness of the harm which might be caused to the plaintiff was relevant to how a reasonable person would behave. The court noted that the duty the defendant owed was to the particular employee (with all his known characteristics), not to a hypothetical ‘reasonable’ employee.

Because the plaintiff had sight only in one eye, there was a strong potential that the harm would be particular great: more so than would be inflicted on a normally-sighted person. This meant that a reasonable person would take greater steps than usual to protect him.

16

Latimer v AEC Ltd [1953] AC 643

Facts: The plaintiff Mr Latimer, worked in a factory owned by the defendants, AEC Ltd. The factory had become flooded due to adverse weather, which caused the floor to become very slippery. In response, the defendants mopped up, put out warning signs for a slippery floor and placed sawdust on the floor to make the area as safe as possible for the workers. The plaintiff was working on nightshift after the flooding and when he was moving a heavy barrel, the slipperiness of the floor caused him to fall. He fell on his back and the barrel proceeded to crush his ankle.

Issues: The trial judge had held that the defendants were in breach of their common law duty of care and were liable for damages. The defendants appealed this decision. The issues of this case surrounded the seriousness of the factory conditions and address the question; if all possible safety measures had been completed to protect workers, should the defendants have closed the factory down.

17

Latimer v AEC Ltd [1953] AC 643

Held: The appeal was allowed. It was held that the defendants had not been negligent and they had taken all reasonable precautions that could have taken to minimise any possibility of risk to their employees. Thus, there was no breach of their duty of care and it was not reasonable to shut down the entire factory. This case states that an employer only had to take steps to minimise risk that a reasonable person would do in the circumstances.

AEC could have closed the factory while the floor was wet but this precaution was a significant and expensive one and a reasonable person would not have taken that precaution in the circumstances.

18

A lower duty of care

The court may decide that a defendant owes a lower duty of acre (and is less likely to have breached their duty of care) because of:

Their status as a minor

Their inexperience

19

McHale v Watson (1966)

Facts: McHale, Watson, and another young girl were playing tag. Watson was 12 years old at the time. At the end of the game, Watson threw a sharpened metal rod at a piece of wood and it bounced off and hits McHale in the eye causing permanent blindness. McHale sued for damages. McHale was unsuccessful at the lower court which she appealed.

Issue: Should children be assessed based on the adult standard of care?

Decision: Appeal dismissed.

Reasons: The judge held that Watson was acting as a normal 12 year old boy would, and cannot be expected to have the perceptions of risk that an adult should have. The act was not done intentionally to hurt McHale, and the judge states that a “reasonable” 12 year old boy would not expect this action to create this outcome.

20

21

To summarise breach of duty of care!

Was the risk foreseeable?

NO

No breach

YES

Was the risk insignificant?

NO

Did the defendant do what a reasonable person would have done in the circumstances, taking into account: the probability of harm, the likely seriousness of harm, the burden of taking precautions and the social utility of the conduct?

YES

No breach

YES

No breach

NO

Breach of duty

Requirement 3: Harm Caused by the Breach of Duty

Establishing that the defendant has breached their duty of care is still not enough to make them liable for plaintiff’s loss or injury. It must be established that the defendant’s breach of duty caused the harm suffered by the plaintiff.

To establish that a breach of duty caused particular harm the court must be satisfied that:

The breach of duty was a necessary condition of the occurrence of the harm (factual causation), and

It is appropriate for the scope of liability of the defendant to extend to the harm so caused (Scope of liability)

22

Factual Causation

The defendant is only responsible for harm that was actually caused by their carelessness. The question is a factual one:

Did the careless act cause, either directly or indirectly, the harm suffered by the plaintiff?

Sometimes the issue of causation is straightforward, carelessness is the cause of loss/injury, for example:

In a car accident, the defendant while driving is also on the phone and not being careful caused the collision with Plaintiff’s car in turn causing the injury to plaintiff.

23

Factual causation- contd.

In other cases, causation can be indirect and less clear.

For example: In the previous example, what if the plaintiff had while recovering in hospital become addicted to painkillers? Was the harm suffered by the plaintiff – the addiction to painkillers- caused by the defendant’s careless driving?

A test often used by the courts is the ‘but for’ test.

24

The “BUT FOR” Test

The court asks whether, BUT FOR the defendant’s carelessness, the plaintiff would have suffered the harm?

If, in the absence of the defendant’s carelssness, the plaintiff would not have suffered the harm, then the harm was caused by the defendant’s carelessness.

Courts use the BUT FOR test to determine causation

This is a general test that helps to establish whether there is more than one cause for the plaintiff’s losses

25

Case example: Yates v Jones[1990]

Facts: Yates was injured in a car accident caused by Jones’s carelessness. While recovering in hospital, a friend of Yates offered her heroin to help her cope with the pain. She subsequently became addicted to heroin and when she sued Jones for compensation for her injuries, she included a claim for the cost of her heroin addiction.

Issue: Was the heroin addiction caused by Jones’s carelessness?

Court asked: But for Jones’s carelessness, would yates have become addicted to heroin?

The court decided that the heroin addiction was not caused by the car accident but was rather caused by the actions of Yates’s friend.

26

Case Example: Barnett v Chelsea & Kensington Hospital (1969)

Facts: The victim drank a cup of tea with arsenic and became ill. He complained of stomach pains and was taken to hospital. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. He died 5 hours later. The victim’s wife sued the hospital for negligence

Held: It was held, that on the ‘but for’ test, even if the deceased had been examined and admitted for treatment, there was little or no chance that the only effective antidote would have been administered to him in time. Although the hospital had been negligent, because it was more likely than not that he would have died anyway, the negligence was not the cause of death.

27

Scope of Liability

The defendant is not liable for every consequence of their carelessness: the court must decide that it is appropriate for the scope of defendant’s liability to extend to the harm actually suffered by the plaintiff.

A key consideration to be taken into account is whether the harm suffered by the plaintiff was reasonably foreseeable.

Similar to duty of care test but here the question is whether the actual loss or injury suffered by the plaintiff was a reasonably foreseeable consequence of the defendant’s carelessness.

If the harm suffered by the plaintiff was too remote or far-fetched – in other words, it was not reasonably foreseeable- then the defendant will not be liable for that harm .

28

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The wagon Mound No. 1) [1961]

Facts: Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951. The crew had carelessly allowed furnace oil (also referred to as Bunker oil) to leak from their ship. The oil drifted under a wharf thickly coating the water and the shore where other ships were being repaired by Morts Dock & Engineering Company.

Hot metal produced by Morts welders fell on floating cotton waste which ignited the furnace oil on the water. The wharf and ships moored there sustained substantial fire damage.

Morts sued Overseas Tankship for negligence.

29

The wagon Mound No. 1- contd.

The court decided the Overseas Tankship (OT) was only liable for the consequences of its own actions that were reasonable foreseeable at the time of negligent act.

But it was not liable for unforeseeable consequences of its negligence.

It decided that although OT had owed Morts a duty of acre and that duty had been breached, the damage suffered by Morts was not reasonably foreseeable.

OT did not know and could not reasonably be expected to have known that furnace oil was flammable when spread on water.

30

Comparison of Foreseeability in Duty of Care and Scope of Liability

Duty of care

Reasonable foreseeability of harm

Objective test – whether a reasonable person could foresee that damage may have resulted from the defendant’s action

This is a general question about any kind of possible harm or damage

Scope of liability

Should a reasonable person have foreseen the type of damage that would result?

This is a specific question about the very particular kind of damage that could result

31

32

Harm caused by breach

Was the breach a necessary condition of the occurrence of Harm?

YES

Is it appropriate for the scope of defendant’s liability to extend the harm?

NO

Harm was not caused by breach

YES

Harm was caused by the breach

NO

Harm was not caused by the breach

Defences

Even if the plaintiff has established all three elements of the tort of negligence, the defendant can still avoid liability, either completely or partially, if they can establish the existence of one or more of the following defences:

Voluntary assumption of risk

Contributory negligence

Other defences:

Barristers

Volunteers

Emergency service providers

Apology

33

Voluntary assumption of risk

If it can be established that the plaintiff was fully aware of the risk at the time of harm was caused and they voluntarily assumed the risk, the defendant is relieved of all liability. This is called Voluntary assumption of risk.

Case example: Rootes v Shelton (1967)

The plaintiff was injured while water-skiing when the defendant (the driver of the boat) drove too closely to a moored boat. The defendant argued that the plaintiff had voluntarily assumed the risk of being injured while water-skiing.

The court decided that while the plaintiff was aware of the risks normally associated with water skiing and had assumed those risks, they had not assumed the risk of defendant failing to avoid or warn of obstacles in the water.

34

Contributory negligence

It is partial defence: if it can be established that the plaintiff contributed in some way to their own loss or injury, liability will be apportioned between the defendant and the plaintiff.

Case example: Ingram v Britten [1994]

Ingram was employed by Britten. While driving a tractor owned by Britten at excessive speed, Ingram lost control and hit a tree causing the tractor to roll over. No metal frame was fitted to the tractor to protect the driver. Ingra sued Britten for compensation.

The court decided that Britten was negligent in not fitting a metal frame to the tractor, but that Ingram was also negligent in driving at a excessive speed.

The court apportioned liability 40% against Britten and 60% against Ingram.

35

Other defences

Barristers: Barristers do not own a duty of care in relation to work done in court or work intimately connected with work in court. This immunity extends to solicitors acting as legal advocates, judges and witnesses giving evidence in court.

Volunteers: A person will not incur civil liability for anything done in good faith while carrying out work for the Commonwealth or a commonwealth authority if the work is done on a voluntary basis.

Emergency service providers: If a person is working for a ‘prescribed entity’ example surf life savers, ambulance drivers, fire fighters etc and providing first aid or other assistance to a person in distress, they are not liable for careless acts if those acts were done in good faith. (also includes good Samaritans helping strangers)

36

Other defences- contd.

Apology: an apology to the plaintiff by the defendant will not relieve the defendant from liability for the consequences of their conduct. Nor is an apology an admission to fault: the defendant can express regret in connection with a matter alleged to have been caused by them without it being interpreted by the court ads an admission of fault or liability.

37

Application of Negligence

Three situations where the principles of negligence are applied to resolve legal disputes:

Vicarious liability

Occupier’s liability

The liability of public authorities

38

Vicarious Liability

Vicarious liability is where employers are considered responsible by law for the acts or omissions of their employees

The employer is regarded as vicariously liable for their employees

To establish vicarious liability the employee must:

Have committed a tort

Be under a contract of employment

Must have committed the tort during the normal course of his/her employment tasks

39

Vicarious Liability – for example

Bob hires John as a forklift operator. While moving a large crate to the customer loading zone, John hits a customer’s car, damaging it. John was engaged in the duties required by his employment, therefore Bob can be held liable for the damages. BUT

A delivery staff while delivering packages who remembers her child forgot her permission slip to the 4th grade field trip, runs home to pick it up, then delivers it to the school, all while she is supposed to be making those deliveries, is definitely not engaged in the employer’s business. Any damages caused, say from having a traffic accident while rushing to the school, is not the employer’s responsibility.

40

Occupiers Liability

An ‘occupier’ of premises is the person who has possession and control of those premises.

For example, Johnny runs his restaurant business, he is the occupier of the restaurant. He is also the occupier of his own home. He owes a duty of care to all persons entering his premises to ensure that the premises are safe.

Note: Standard of care owed by the occupier of commercial premises will generally be higher than occupier of residential premises.

Does an occupier also owe a duty of care to people who enters their premises without their permission?

Generally no but it is up to Court’s discretion depending on the amount of damages.

41

Case example- Australian Safeway Stores Pty Ltd v Zalzuna (1987)

Facts:

Plaintiff, Zaluzna went into the Defendant’s store [Australia Safeway, appellant]. It was raining outside so the foyer was wet and the defender slipped and injured himself. The Plaintiff sued for negligence

Judgment:

Here we have a commercial relationship as well as reasonable foreseeability, therefore there is a duty of care.

Court argued that when you expect people to come into your shop and pay you money, the least you can do is provide a safe environment.

42

Liability of public authorities

What is the plaintiff is injured in a public place?

Same as ‘an occupier’, a public authority owes a duty of care to people who visit areas under the control of the authority.

Where the danger is unnatural or hidden, a public authority will owe a duty of care to warn of foreseeable risks to persons using the area as intended by the public authority.

43

Case example- Nagle v Rottnest island Authority (1993)

FACTS

An employee of the Rottnest Island Authority (Nagle) dived off of some rocks and was seriously injured

He sued the RIA stating they breached their standard of care

ISSUE

Could the employer be held responsible

HELD

The Authority exercised a high degree of control over the area, e.g. maintaining bike racks and toilets

The risk of someone jumping off the rocks was reasonably foreseeable so they should have acted, e.g. put up a sign

44

Liability of public authorities- contd.

On the other hand, when the danger is obvious, the public authority is entitled to assume that most people will take reasonable care for their own safety.

Case example: Romeo v Conservation Commission of Northern Territory (1998)

Facts: Plaintiff (Romeo) was drinking and socialising around some cliffs which were under management of the Defendant. She mistakenly walked off the cliff and seriously injured herself. The Plaintiff sued the Defendant for failing to prevent the risk by providing a fence

45

Romeo v Conservation Commission of Northern Territory (1998) – contd.

Factors in this case include:

No injury has ever occurred before, in over 100 years. This means that the probability of harm is very very small. Low probability.

The danger should have been obvious to the Plaintiff – it was a cliff. Obvious risk.

Erecting a fence here and everywhere where there is a risk will be very costly as well as undermine the aesthetic attraction of the site. High burden.

All in all, it was not reasonable to expect the Defendant to have done more. The accident was very improbable, and the risk of the cliffs was so obvious that the Defendant could have reasonably assumed no one would walk off them.

The court decided that an occupier is entitled to assume that entrants will take reasonable care for their own safety and that CCNT was not liable for injuries sustained by ‘an inattentive young woman who was under the influence of alcohol’.

46