TORTS
Lecture 6
Breach of Duty
Clary Castrission
clary@40k.com.au
Wrapping up Breach of Duty
• Standard of Care
– What standard of care is owed? (Q of law)
• Standard of care owed by the reasonable person in the circumstances
• What would the reasonable person do in the D’s position
• Duty breached
– Did the D’s actions fail to meet that standard?
• Was risk of injury to the P Reasonably foreseeable?
• Degree of risk
• Magnitude of harm
• IF SO
– Was the response of the d to this reasonable?
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Calculus of negligence (from s5B) AND where relevant, consider
Reasonability of precautions
Social utility
Any relevant professional or statutory standards
Breach of Duty from Shirt
• If reasonable person in defendant’s position would have foreseen
risk to the P, then:
• “... it is then for the tribunal of fact to determine what a reasonable
man would do by way of response to the risk. 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. It is only when these matters are
balanced out that the tribunal of fact can confidently assert what is
the standard of response to be ascribed to the reasonable man
placed in the defendant’s position.”
• Applied in Roads and Traffic Authority of NSW v Refrigerated
Roadways Pty Limited [2009] NSWCA 263 (22 September 2009)
• RTA v Dederer, Gummow J at [69]:
“What Shirt requires is a contextual and
balanced assessment of the reasonable response
to a foreseeable risk.”
Comparing DUTY to BREACH
• Mason J in Wyong v Shirt at 47-48
• Wagon Mound (No. 2) per Lord Reid
– A reasonable man would only neglect such a risk if
he had some valid reason for doing so, eg, that it
would involve considerable expense to eliminate
the risk. He would weigh the risk against the
difficulty of eliminating it ...
Test for breach
1. Was the risk of injury to P reasonably
foreseeable? DUTY
2. If so, was the response of the defendant to
this risk reasonable? BREACH
– Did the D meet the requisite standard of care?
IF NOT, there has been a breach of duty
Start with consideration of the risk
1. Degree of foreseeable risk
– RTA v Dederer (2007) 238 ALR 761
• “It is only through the correct identification of the risk
that one can assess what a reasonable response to that
risk would be” (Gummow J at [59])
2. Reasonableness of Defendant’s response to
the risk
Reasonable Person
What would the reasonable person, in the
defendant’s position (with the knowledge that
they either had or ought to have had) have
done in the circumstances out of which the
harm arose?
Was risk reasonably foreseeable?
(s5B(1)(a))
• Romeo v Conservation Commission (NT)
(1998) 192 CLR 431
– It is quite wrong to read past authority as
requiring that any reasonably foreseeable risk,
however remote, must in every case be guarded
against (Kirby J at 480)
• Check to see if:
– Risk is not far-fetched or fanciful (or insignificant,
under s5B)
Risk not far-fetched or fanciful
• The Wagon Mound (No. 2) [1967] 1 AC 617
• Wyong SC v Shirt (1980) 146 CLR 40
• Chapman v Hearse (1961) 106 CLR 112
“Calculus of Negligence” under 5B(2)
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Probability of harm occuring if care not taken
Likely seriousness of harm
Burden of taking precautions
Social Utility
Breach of Duty – Likelihood of Injury
• Section 5B(2)(a) the probability that the harm
would occur if care were not taken
• Bolton v Stone [1951] AC 850
• RTA v Dederer (2007) 238 ALR 761
Breach of Duty – Seriousness of Harm
• Section 5B(2)(b) the likely seriousness of the
harm
• Adelaide Chemical & Fertilizer Co. v Carlyle
(1940) 64 CLR 514
• Paris v Stepney Borough Council [1951] AC
367
Breach of Duty – Cost of Avoiding
Harm
• Section 5B(2)(c) the burden of taking
precautions to avoid the risk of harm
• Caledonian Collieries Ltd v Speirs (1957) 97
CLR 202
Breach of Duty – Social Utility of the
Act of the Defendant
• Section 5B(2)(d) the social utility of the
activity that creates the risk of harm.
• Watt v Hertfordshire County Council
Res Ipsa Loquitur
• Elements:
– Accident must raise presumption of negligence
• Examples: Laurie v Raglan Building Co [1942] 1 KB 152,
Chaproniere v Mason (1905) 21 TLR 644, Mahon v
Osborne [1939] 2 KB 14
– Thing must be under D’s control
– Actual cause of accident must not be known
• Barkway v South Wales Transport [1950] AC 185
• Nominal Defendant v Haslbauer (1967) 117 CLR 448
• Effect
Wrapping up Breach of Duty
• Standard of Care
– What standard of care is owed? (Q of law)
• Standard of care owed by the reasonable person in the circumstances
• What would the reasonable person do in the D’s position
• Duty breached
– Did the D’s actions fail to meet that standard?
• Was risk of injury to the P Reasonably foreseeable?
• Degree of risk
• Magnitude of harm
• IF SO
– Was the response of the d to this reasonable?
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Calculus of negligence (from s5B) AND where relevant, consider
Reasonability of precautions
Social utility
Any relevant professional or statutory standards
Part 5 Liability of Public & Other
Authorities
• Sections 40 to 46
• Provides specific additional protection for
public authorities including:
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the Crown
Government departments
Local councils
Other prescribed bodies
Part 5 Liability of Public & Other
Authorities
•
Section 42 sets out the principles to apply in determining
whether a public or other authority has a duty of care or has
breached a duty of care including:
(a)
the functions required to be exercised by the authority are limited by
the financial and other resources that are reasonably available to the
authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not open to
challenge,
(c) the functions required to be exercised by the authority are to be
determined by reference to the broad range of its activities (and not
merely by reference to the matter to which the proceedings relate),
(d) the authority may rely on evidence of its compliance with the general
procedures and applicable standards for the exercise of its functions as
evidence of the proper exercise of its functions in the matter to which
the proceedings relate.
Part 5 Liability of Public & Other
Authorities
•
Section 43: an act or omission by an
authority does not constitute a breach of a
statutory duty, unless the act or omission
was so unreasonable in the circumstances
that no authority having the functions in
question could properly consider the act or
omission to be a reasonable exercise of it
function.
Part 5 Liability of Public & Other
Authorities
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Section 44: Removes the liability of public
authorities for failure to exercise a regulatory
function if the authority could not have been
compelled to exercise the function under
proceedings instituted by the Plaintiff.
S45- Roads Authorities
• (1) A roads authority is not liable in proceedings for civil
liability to which this Part applies for harm arising from a
failure of the authority to carry out road work, or to consider
carrying out road work, unless at the time of the alleged
failure the authority had actual knowledge of the particular
risk the materialisation of which resulted in the harm.
• (2) Doesn’t create duty of care simply because the roads
authority had actual knowledge of the risk.
• (3) Carry out roadwork defined to include construction,
installation, maintenance, inspection, repair
Porter v. Lachlan Shire Council [2006]
NSWCA 126
• Facts
• CLA s3: In this section:
"carry out road work" means carry out any activity in connection with the
construction, erection, installation, maintenance, inspection, repair, removal
or replacement of a road work within the meaning of the Roads Act 1993 .
• Roads Act 1993 (dictionary)
road work includes any kind of work, building or structure (such as a roadway,
footway, bridge, tunnel, road-ferry, rest area, transitway station or service
centre) that is constructed or installed on or in the vicinity of a road for the
purpose of facilitating the use of the road as a road, the regulation of traffic
on the road or the carriage of utility services across the road, but does not
include a traffic control facility, and carry out road work includes carry out
any activity in connection with the construction, erection, installation,
maintenance, repair, removal or replacement of a road work.
s45 - Porter v. Lachlan Shire Council
• Hodgson JA (Beazley JA & Giles JA agreeing)
• 34 In my opinion, this case does come within s45, on either of two bases.
35 First, where that part of a road used for pedestrian purposes has been
altered by the installation of a footpath and a gutter, leaving what may be
called a nature strip in between, it is in my opinion an unduly narrow view
of what constitutes a road work to say that, while the made footpath is a
road work and the gutter is a road work, the nature strip between them is
neither a road work nor part of a road work. In my opinion the better view
is that the whole of the area for pedestrian purposes, comprising the
made footpath, the nature strip and the gutter, comprises a road work.
•
s45 - Porter v. Lachlan Shire Council
• Hodgson JA (Beazley JA & Giles JA agreeing)
• 36 Second, in any event, where there is a hole in that part of a road which
is a nature strip within the area used for pedestrian purposes, it would be
road work to fill and make good that hole. That view is not in my opinion
precluded by the use of the words “constructed” and “installed” in the
definition of road work in the Roads Act, which, unlike the relevant
definition in s45 of the Civil Liability Act, is an inclusive definition and not
an exhaustive definition. Once it is accepted that to fill and make good the
hole would be road work, then the question would arise whether failure to
do this would be failure to “carry out any activity in connection with the
construction, erection, installation, maintenance, repair or replacement of
a road work” within s45(3). In my opinion, it would be: although the words
“construction” and “installation”, and the indefinite article “a” in front of
“road work”, could be taken as inapt for the filling and making good of a
hole, on balance I think it would be too narrow an approach to hold that
the words do not extend to such activity.
s45 - Porter v. Lachlan Shire Council
• Hodgson JA (Beazley JA & Giles JA
agreeing)
– 37 On either basis, s45 applies: on the first basis,
the allegation would be that the respondent failed
to maintain a road work, and on the second basis,
it would be that the respondent failed to construct
or install a road work.
s.45 Actual Knowledge:
North Sydney Council –v- Roman [2007] NSWCA 27
• Facts
• At trial
s.45 North Sydney Council –v- Roman
• Held, allowing the appeal, per Basten JA (Bryson JA
agreeing):
• 1. For the purposes of s.45 actual knowledge must be found in
the mind of an officer within the council having delegated (or
statutory) authority to carry out the necessary repairs.
• 2. The evidence demonstrated that no Council officer at a
decision-making level had “actual knowledge” of the
particular pothole and therefore the appellant did not have
such knowledge. Accordingly, the exception to s.45 was not
engaged and the statutory immunity prevailed. Per McColl JA
(dissenting)
s.45 North Sydney Council-v- Roman
• Held, allowing the appeal, per Basten JA (Bryson JA
agreeing):
• 1. For the purposes of s.45 actual knowledge must be found in
the mind of an officer within the council having delegated (or
statutory) authority to carry out the necessary repairs.
• 2. The evidence demonstrated that no Council officer at a
decision-making level had “actual knowledge” of the
particular pothole and therefore the appellant did not have
such knowledge. Accordingly, the exception to s.45 was not
engaged and the statutory immunity prevailed. Per McColl JA
(dissenting)
Part 8: Good Samaritans
• S56:
– a "good samaritan" is a person who, in good faith and
without expectation of payment or other reward,
comes to the assistance of a person who is apparently
injured or at risk of being injured.
• s57
– (1) A good samaritan does not incur any personal civil
liability in respect of any act or omission done or
made by the good samaritan in an emergency when
assisting a person who is apparently injured or at risk
of being injured.
Part 8: Good Samaritans (ss55-58)
• S58: where liability not exempted:
– Where good samaritan caused the injury in the
first place,
– The good samaritan was under the influence of
drugs/alcohol AND failed to take reasonable care
– The good samaritan was impersonating
emergency service worker, policeman or
pretending to have the skills to address the
current injury
Part 9: Volunteers (ss59-66)
• Section 60: Defines community work to mean
work that is not for private financial gain and
that is done for a charitable, benevolent,
philanthropic, sporting, educational or cultural
purpose. It excludes community service
orders imposed by a court.
Parts 8 & 9 Good Samaritans &
Volunteers
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Section 61: No civil liability for a volunteer doing community
work
BUT does not extend to
criminal acts (s62)
Acts whilst intoxicated AND volunteer failing to exercise
reasonable care and skill (s63)
actions outside the scope of the charitable organisation or
contrary to instructions (s64)
where the volunteer is required by State law to be insured
(s65)
Or motor vehicle accidents (s66)