Suggested answer – negligence model case study
In the tort of negligence the plaintiff must prove that the defendant owed them a
duty of care, breached that duty and that damages were suffered as a result of a
breach of that duty.
For Brooke to make a successful claim against the Yarra Valley City Council she
must establish that a duty of care existed. Here the test of reasonable
foreseeability must be applied. The question to be asked is whether a
reasonable person would foresee that damage might result from the defendant’s
action. It could be argued in Brooke’s case that the signs put up by the Council
created a reasonably foreseeable risk of injury of some kind to someone such as
herself. (See Chapman v Hearse 1961)
Before a duty of care can exist there must also be a proximate relationship
between the parties. The proximity requirement involves the concept of
nearness or closeness and includes physical, circumstantial and causal
proximity. The relationship between Brooke and the Council is sufficiently
proximate to give rise to a duty of care. The Council has a relationship of
proximity with members of the public using the water under its control. (See
Nagle v Rottnest Island Authority 1993)
The second element required to prove negligence is that a duty of care has been
breached. To determine whether there has been a breach of duty the question
must be asked whether a reasonable person would have foreseen the harm in
the circumstances and taken steps to prevent it. The conduct of the defendant is
measured against that of a reasonable person in the same circumstances.
Special skills, permanent disability or age may alter the test. A council, which is
responsible for the maintenance of a river such as the YVCC and where there
exists a hidden danger, will owe a duty of care to warn people of foreseeable
risks.
The law must then balance the degree of the risk and the likelihood of injury
occurring, against the expense and difficulty of taking precautions. If the
possibility of injury is small then the defendant may be entitled to disregard it.
(See Bolton v Stone 1951). However if the degree of injury is serious and the
cost of taking precautions is low then the defendant will be expected to take
appropriate action to minimise the risk. (See Paris v Stepney Borough Council
1951). The YVCC should have been aware that a water skier could take the sign
‘Deep Water’ to mean that it was safe to ski and thus suffer a serious injury in
proceeding to do so. The cost of changing the signs and warning people of the
dangers may have been small in comparison to the risk associated with not doing
so.
Damage is also an essential part of negligence. The plaintiff must show that the
defendant’s negligence caused the damage and that it was not too remote. The
issue of causation arises. The ‘but for’ test may be applied where the question is
asked ‘but for the conduct of the defendant, would the damage have been
suffered?’. In the case at hand injury to Brooke would not have occurred but for
the YVCC’s failure to erect the proper warning signs.
The plaintiff must also demonstrate that the damage suffered was not too
remote. The test is one of reasonable foreseeability. If the damage was
reasonably foreseeable by the defendant then liability will flow (See Overseas
Tankship (UK) Ltd V Miller Steamship Co. Pty 1967). Brooke may be successful
in her claim against YVCC if she can prove that a council would be aware that
there was a real risk of physical injuries of the kind sustained by her as a result of
using the river due to the incorrect signs.
See Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217
NB Relevance of vicarious liability must be considered also