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STEP 1: Identify the parties (P and D) A novel fact situation a similar category of established duty
STEP 2: Identify the injury (personal/physical injury – spinal must be recognised and an argument by analogy is made as to
injuries), wrongdoing (failure to warn/failure to avoid/failure why a novel fact situation should give rise to a DOC.
to move) Salient features approach (Perre v Apand)
STEP 3: Definition of negligence: A legal duty to take care Takes consideration of relevant salient features to determine
and breach of that duty by the D causing damage to the P: if there is a sufficiently close relationship to give rise to
Lonchgelly DOC. SF include; 1) P’s Vulnerability, autonomy and
STEP4: Element of negligence: 1) D owes P a duty of care reliance on D, 2) D’s control over situation, 3) Assumption
(DOC); 2) Breach of DOC; 3) Causation of responsibility by D, knowledge of D.
1) Duty of Care - The defendant must take reasonable care
to avoid acts or omissions which they can reasonably foresee ANSWER: For this element, a general duty to take care
may injure another. (Donoghue v Stevenson) needs to be owed by D to P under the neighbour principle in
a) Neighbour principle – person so closely affected by the act common law. The duty owed in these circumstances is the
that ought to have them in contemplation (Donoghue) established category of employer and employee as __(name)
b) Established categories: Relationship between D & P will is a cleaner working for the defendant (Bankstown).
always give rise to reasonably foreseeable risk of harm due to Employers owe employees a duty to take reasonable care in
D’s negligent conduct. Categories of scope includes; conducting business in a manner which avoids their
* road users to others road users (Imbree v McNeilly) – employees suffering foreseeable and prevented risk of
duty of care owed by every road user to every other road user harm. The duty under the employer category is non-
as well as to persons and property adjacent to the road. delegable, so even if another employee is at fault the
Pedestrian (Davies v Tomkins). employer will still be liable under vicarious liability (Kondis
* Person in control of others – scope of duty is to prevent v State transport authority)
intentional damage/risk to others by their child
* Legal practitioners to clients – owe a duty of care to BREACH
clients to exercise reasonable care in carrying out terms of 5B General Principle: (1) a person is not liable for harm
retainer and to skill and provision of professional advice caused by that person’s fault in failing to take precautions
(Hawkins v Clayton) against a risk of harm unless; a) the risk was foreseeable; b)
* Occupiers to entrant – occupiers owe a DOC to entrants the risk was not significant; c) a reasonable person in the
onto those premises to take reasonable care for the safety of person’s position would knew or ought to have known.
those entrants. (shop/uni/resort) For the second element, establishing that a breach of the duty
* Manufacturers (Donoghue) – all reasonable precautions of care occurred is needed. Alderson B described breach as:
to prevent injuries to any person it can reasonably be foreseen an omission to do something which a reasonable person,
could use the product without intermediate inspection. guided upon those considerations which ordinarily regulate
* Employer & employees (Bankstown Foundry) the conduct of human affairs, would do, or doing something
which a prudent and reasonable person would do. The civil
c) Special Rules – there are some relationship between P’s liability act 2002 (WA) (CLA) s 5B test for breach involves 2
and D’s have special rules relating to DOC. We will consider keys factors;
1. Pure Economic loss a) Foreseeability risk (Wyong Shire Council v Shirt)
2. Negligently inflicted mental harm - s 5B (1)(a) The defendant will not liable for harm caused by
* Types: 5Q Pure mental harm – occurs when the only that person’s fault in failing to take precautions against a risk
injury suffered by P is mental harm (Tame v NSW) of harm unless the risk was foreseeable.
* Elements of mental harm; i) suffered a psychiatric illness; - The requirement is whether or not a reasonable person in
ii) it was reasonably foreseeable they would suffer harm and their position would have taken precautions not whether the
iii) suffered a sudden shock defendant was aware.
Consequential mental harm – is mental harm which is a b) Reasonableness of Precautions
consequence of physical harm. For example, if P suffers - s 5B (1)(b) The court will consider whether a reasonable
personal injury in an accident and then develops depression person in the position of the defendant would have taken
as a result of being in the accident. precautions against a risk of harm.
* Duty of care for mental harm - S 55 (1) D does not owe a - Dean J described a reasonable person as being a
duty of care to P to take care not to cause P mental harm hypothetical Bondi tram. (Papatonakis v Australian
unless D ought to have foreseen that a person of normal Telecommunications Commission).
might suffer a recognised psychiatric illness if reasonable
were not taken. REASONABLE PERSON
S 55 (3) for the purpose of the application of this section in - The standard approach to determine whether D has
respect of consequential mental harm, the circumstances of breached is to ask how a reasonable person would have acted:
the case include the personal injury suffered by P. a) Children (McHale v Watson)– D’s infancy will lower the
S 5T A court cannot make an award of personal injury standard of reasonableness; b) Mentally ill – D’s mental
damages for pecuniary loss for consequential mental harm illness will not affect reasonableness; c) Professionals
unless the harm consists of a recognised psychiatric illness. (Rogers v Whitaker) – D’s claim to be exercising a special
(Wicks v State rail Authority) kill with attract higher standard of care; d) Consenting
Operation of the CLA test is in s 5S(1); to paraphrase, D does Plaintiff – if P consents to driving with inexperienced driver,
not owe a DOC unless: inexperienced D will be judged against object standard of
* Foreseeability care.
* Circumstances of the case In the case at hand, outlining possible precautions which
* a person of normal fortitude needed to be taken to remove the risk of harm was ( ).
* might suffer a recognised psychiatric illness Some of the precautions could include; (_)
d) Novel Categories – is P one of a class of persons who
would reasonably be at risk if P failed to take reasonable care
of? * Reasonable foreseeability *Limiting factor
approaches
Calculus of negligence; the steps were practical is vital for the element. (Romeo v
In determining whether a reasonable person would have Conservation Commission)
taken precautions against a risk of harm , the court is to * Some of the steps which could been taken to avoid the risk
consider this following: which would be burdensome due to cost, time, practicality;
i) probability of harm occurring if care were not taken
- CLA s 5B (2)(a), It is likely that establishing liability in hiring employees who have trained, moving the chairs to
negligence when the likelihood of risk is low, so there needs better place.
to be a likely risk of injury occurring. (Bolton v Stone) iv) Social Utility – CLA s 5B (2)(d) Social utility is when the
ii) Likely seriousness of harm activity causing the breach has social implications and is seen
- CLA s 5B (2)(b) if the seriousness of harm is low, it will be as having positive effects on society, it then justifies the harm
unlikely that the defendant will be liable. For establishing suffered by the plaintiff. (E v Australian Red Cross)
liability, the higher seriousness of harm, holding it to a higher In this case it could possibly argued that leaving fire open
standard of care. (Paris v Stepheny Borough Council). The door benefits the public and tenant as they could walk
likely seriousness of harm for __ (name) is extremely high through with trolley.
because ___, even resulting in death.
iii) Burden of taking precautions – CLA s 5B (2)© showing
that a reasonable person would have taken practical steps to
avoid the risk causing the plaintiff to suffer injury and that
CAUSATION
General Principle s 5C (1) a determination that the fault of a person caused particular harm comprises the following elements; 1)
factual causation & 2) scope of liability
a. Factual causation
* Necessary Condition test: s 5C(1)(a) that the fault was a necessary condition of the occurrence of harm (Adeels v Moubarak)
* Onus of proof – s 5D ‘ In determining liability for damages for harm caused by the fault of a person, the plaintiff always bears the
onus of proving, on the balance of probabilities, any fact relevant to the issue of causation’(Amaca v Ellis)
* Res lpsa loquitor – can be relied on when 1) absence of explanation for injury 2) occurrence of this kind does not usually occur
without negligence; 3) instrument or agency causing the injury was under control of D.
* But for - P must prove the negligent act resulted in the harm, the harm would not have occurred but for. (Barnett)
* Injury must not have occurred but for: otherwise D’s act will be a possible but not probable cause.
* P must show ‘but for’ the absence of precaution on the part of D the injury would not have occurred
* Other methods to find causation – s 5C(3)(a) ‘the matter is to be determined by considering what the injured person would have
done if the tortfeasor was not a fault.
b. Scope of liability (McKiernan v Manhire)
- s 5C(1)(b) of CLA that it is appropriate for the scope of the tortfeasor’s liability extend to the harm.
- s 5C(4), The court is considered whether and why responsibility for harm should imposed on tortfeasor.
The main mechanisms for dealing with scope considerations include:
* Novus Actus Interveniens – D will successfully avoid liability if demonstrate P’s injuries were caused by a subsequent event that
was not RF (Haber v Walker; March v Stramare)
* Remoteness – If P’s injuries are too remote from D’s negligent conduct, it will not be appropriate for the scope of liability to
extend to DP was a reasonably foreseeable consequence of the D’s breach (Oversea Tankship v Mort’s Dock)
- for an intervening act to sever connection it must be: (i) human voluntary act; (ii) independent event.
* Egg-Shell skull rule – D must accept P as they find them, even if they have a weakness
ANSWER: In section 5C (a & b) of the CLA, final element to establish liability is to determine whether or not the harm suffered
by the plaintiff was the fault of the person who caused the harm. The plaintiff needs to establish factual causation. The fault must
be a necessary occurrence of harm and it must be appropriate for the scope of the tortfeasor’s liability to extend to the harm so
caused. P , (name), must prove (D name) negligence was a necessary condition of the occurrence of the loss, meaning he must
prove but for (__)’s negligence the chance that he would not have been harmed was greater than 50%. He must also prove that
the harm was in the scope of ( _ )’s liability.
STEP 4: DEFENCES
Onus of proof is on D to prove the defences on the balance of
probabilities. Three categories;
(a) STATUTORY AUTHORITY – defence to prove legislation
has authorised nuisance but construed strictly. 2 elements
* Nuisance authorised by legislation (Souther Props)
* Nuisance could not be reasonable avoided
- nuisance could have been reasonably avoided as there were
alternative methods of construction available (York Bros)
(B) Contributory Negligence
* In WA, CN legislation applies to actions founded on
allegations of negligence; no statutory defence of CN for
nuisance applies.
C) PRESCRIPTION
* for private nuisance only (Matt v SHoolbred)
* if the interference has been occurring without complaint for
over 20 years, D may be able to acquire the right to commit
nuisance (Sturges v Bridgman)