TORTS
Lecture 6
Breach of Duty
Clary Castrission
clary@40k.com.au
Roadmap for tonight
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S5B
Understanding standard of care
Foreseeability of risk
Calculus of negligence
An Application: Waverly Council v Ferreira
[2005]
• Res Ipsa Loquitur
• Professional Negligence
Duty of Care
• S 5B:(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.
Breach of Duty
• Standard of Care
– What standard of care is owed? (Q of law)
• Was risk of injury to the P Reasonably foreseeable?
• 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?
• Probability of risk
• Magnitude of harm
• IF SO
– Was the response of the d to this reasonable?
• Calculus of negligence (from s5B), 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
– 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. If so, was the response of the defendant to this risk
reasonable? BREACH
– 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?
– Did the D meet the requisite standard of care?
IF NOT, there has been a breach of duty
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 occurring 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
“It is one thing to take risks when driving for
some commercial purpose with no
emergency, but quite another to take risks for
life and limb.” (Lord Denning
How Duty and Breach work together–
s.5B(1) & (2)
• Waverley Council v Ferreira [2005] NSWCA 418
• Facts
Issue 1: The Fence and the undergrowth
• S5B(1)
– Risk of harm foreseeable?
– Risk of harm significant?
– In circumstances, would reasonable person have
taken precautions?
s.5B(1)(a) - Waverley Council v Ferreira
• Foreseeability of harm
• 34 The initial element to be determined under s5B(1) is
whether the risk was foreseeable. As s5B(1)(a) makes plain,
that involves inquiring whether the risk in question is one of
which the defendant knew or ought to have known. The
relevant risk in relation to the removal of the fence and
undergrowth was the risk that children might use the fence
and undergrowth to facilitate their access to the roof and,
when on the roof, might fall to the ground.
• Doubleday v Kelly [2005] NSWCA 151
“The actual events as they happened are not the circumstances
to which consideration of foreseeability of risk of injury is
applied; what is to be considered is foresight in more general
terms of risk of injury.” per Bryson JA
s.5B(1)(a) - Waverley Council v Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 43 In my opinion, the relevant risk of injury was that
a child such as Martin might fall to the ground once
he had climbed on to the roof. In my opinion, that
was a foreseeable risk in terms of s 5B(1)(a). It was a
risk of which the Council knew or ought to have
known. It is immaterial that the Council might not
have been able to foresee the precise mechanism
that caused Martin to fall.
s5B(2) in Ferreira
• s5B(2)
– Probability of harm if care not taken
– Likely seriousness of harm
– Burden of taking precautions to avoid risk
– Social utility of activity which creates risk
s.5B(2) - Waverley Council v Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 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).
So would reasonable council remove the
fence and undergrowth?
• 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).
s.5B(2) - Waverley Council v Ferreira
• 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)).
s.5B(2) - Waverley Council v Ferreira
• 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.
So what about the grille?
• Did the council breach its duty by not putting
a grille on the skylight?
- IN SOLVING THESE PROBLEMS:
1. Find out if risk or harm was foreseeable (question
of law) under 5B(1)
2. THEN, balance up the cost of the precautions
(under s5B(2)- as directed by 5B(1)(c)
Council of the City of Greater Taree v Wells
[2010] NSWCA 147 (1 July 2010)
• Facts
• KIRBY J in Romeo v Conservation Commission
(young woman fell 6.5m off cliff)
• “It is one thing to hold that a person owes a
duty of care of some kind to another. But the
critical question is commonly the measure or
scope of that duty. The failure to distinguish
these concepts can only lead to confusion.”
Council of the City of Greater Taree v Wells
[2010] NSWCA 147 (1 July 2010)
• Quoted McColl JA in RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
• “5B is not a self-contained statement of the circumstances in
which a liability for negligence will arise. Rather, subsection 1
sets out three preconditions that must co-exist before a liability
in negligence arises, when the type of negligence alleged is
failure to take precautions against a risk of harm arising….
Subsection 2 provides a non-exhaustive list of factors the court
is required to take into account in deciding whether the third of
those preconditions exists. Section 5B presupposes the
existence of the law of negligence, and operates against its
background.”
Res Ipsa Loquitur
• Elements:
– Accident must raise presumption of negligence
• Examples: 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
Duty of Care
5C Other principles
In proceedings relating to liability for negligence:
(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.
Adeels Palace Pty Ltd v Moubarak
Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48
• Facts
• Application of CLA
– [13] “Although ss5B and 5C appear beneath the
heading “Duty of Care,” that heading is apt to
mislead… Both provisions are evidently directed to
questions of breach of duty.”
Special Breach of Duty Provisions
under the Act
• Professional Negligence (standard of care)
Professional negligence
Sections 5O & 5P
• “Peer professional opinion” (or Bolam) test for
determining the appropriate standard of care
– Bolam v Friern Hospital Management Committee [1957] 2 All ER
118
– Sidaway v Governors of Bethlehem Royal Hospital [1985]
UKHL1
• “The Bolam principle may be formulated as a rule that a
doctor is not negligent if he acts in accordance with a
practice accepted at the time as proper by a responsible
body of medical opinion even though other doctors adopt a
different practice. In short, the law imposes the duty of care:
but the standard of care is a matter of medical judgment.”
(Lord Scarman at 881)
F v R (1983) 33 SASR 189: per King CJ at 194
“The ultimate question is not whether the defendant’s conduct accords with the
practices of his profession or some part of it, but whether it conforms to the
standard of reasonable care developed by the law.”
• Rogers v Whitaker (1992) 175 CLR 479
– Facts
– Relevance of professional opinion v
conclusiveness
Professional negligence
5O Standard of care for professionals
(1) A person practising 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 Australia 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
• (3) The fact that there are differing peer professional
opinions widely accepted in Australia concerning a
matter does not prevent any one or more (or all) of those
opinions being relied on for the purposes of this section.
• (4) Peer professional opinion does not have to be
universally accepted to be considered widely accepted.
2nd Reading Speech, Hansard 23
October 2002.
• “The bill also creates an additional defence to
alleged professional negligence if the
professional acted in a manner that was
widely accepted in Australia by pure
professional negligence if the professional
opinion as competent professional practice.”
• The Premier, Minister for Arts and Minister for
Citizenship.
Dobler v Kenneth Halverson and Ors;
[2007] NSWCA 335
• Facts
• Trial
• At Court of Appeal
s5P- Failure to warn of risks
• This Division does not apply to liability arising
in connection with the giving of (or the failure
to give) a warning, advice or other information
in respect of the risk of death of or injury to a
person associated with the provision by a
professional of a professional service.
Wrapping up negligence thus far- DOC
• Established category OR
• Reasonable Foreseeability:
– Would the reasonable person in the D’s position have foreseen that there
was a real risk that carelessness on his/her behalf could cause loss/harm to
people in the P’s position?
• “not far-fetched or fanciful” Shirt
• s5B(1) – ‘not insignificant’:
– using s15AA Acts Interpretation Act
– para 7.15 of the Ipp Report states that “the phrase ‘not
insignificant’ is intended to indicate a risk that is of a higher
probability than is indicated by the phrase ‘not far-fetched or
fanciful’” but is not intended “to be a synonym for ‘significant’”.
• If risk is obvious, there is no DOC: s5G
– Was P one of these people?
• Vulnerability
– Was D in a position of power and knew this?
– Was P in a position of powerlessness?
DOC (continued)
Special categories
•Mental Harm (different): s32 explains DUTY:
person of normal fortitude might, in the
circumstances, suffer recognized psychiatric
illness if reasonable care not taken.
•Local authorities: s42- affects DOC AND
BREACH
•Good Samaritans: ss56-57, and volunteers
Breach of Duty- the Test
• Standard of Care
– What standard of care is owed? (Q of law)
• Standard of care owed by the reasonable person in the
circumstances
– Professionals acting in line with professional opinion: s5O
and 5P
• What would the reasonable person do in the D’s position
• Duty breached
– Did the D’s actions fail to meet that standard? (Question of fact)
• Was risk of injury to the P Reasonably foreseeable? (Shirt and
5B)
• Degree of risk
• Magnitude of harm
– Special case: public authorities: s43, roads s45
• IF SO
– Was the response of the d to this reasonable?
• Calculus of negligence (from s5B) AND
where relevant, consider
• Reasonability of precautions
• Social utility
• Res Ipsa Loquitur (evidentiary rule that could help
when there is no other explanation for the
accident)
Roadmap for tonight
•
•
•
•
•
S5B
Understanding standard of care
Foreseeability of risk
Calculus of negligence
An Application: Waverly Council v Ferreira
[2005]
• Res Ipsa Loquitur
• Professional Negligence