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the probability that the harm would happen if precautions were not
the likely seriousness of the harm;
the burden of taking precautions to avoid the risk of harm;
the social utility of the activity creating the risk of harm.
Foreseeability (breach)
Wyong Shire Council v Shirt (1980) 146 CLR 40
Facts:
Ruling:
Foreseeability of the risk of injury and the likelihood of that risk occurring
are two different things
o
Duty - foreseeability of a 'consequence of the same general
character'
o
Breach specific injury suffered
Overseas Tankship (UK) Ltd v The Miller Steamship Co or Wagon Mound (No.2)
[1967] 1 AC 617
Facts:
Welding work was being carried out on the Corrimal - but manager said
safe to work
After some time, oil caught fire and caused serious damage to ship
Ruling:
Not Insignificant:
WHO KNOWS!
Precautions
Calculus of negligence Shirt Test Mason J (at 14.) Wyong Shire Council v Shirt
(1980) 146 CLR 40
Reasonable Person:
s (42)
Standard of Care - for deciding whether person was negligent, the standard of
care required of the defendant is that of a reasonable person in the defendant's
position who was in possession of all the information that the defendant had or
ought to have had at the time of the incident from which the harm arose
McQuire v Western Morning News Co [1903] 2 KB 100 ' the man on the Clapham
omnibus'
Papatonakis v ATC (1985) 156 CLR 7 - 'hypothetical person on the Bondi tram'
Probability of Harm
Bolton v Stone [1951] AC 850
Facts:
Ms Stone was standing on the road outside her house, which is also across
from a cricket ground
Held - not negligent - risk was too remote for a reasonable person
Negligence held - did not take sufficient measures, too much risk
RTA of NSW v Dederer (2007) 234 CLR 330
Facts:
14 year old dived from bridge built by RTA 30 years earlier - injured
Defendants, RTA and council, had placed signs saying 'do not jump', but
were aware that signs were routinely ignored
Than an action that might cause harm is frequent does not mean there is a
frequent risk of harm - need to consider whether the risk of hitting the sand
bar here was high
Duty of care imposes obligation to exercise reasonable care, not to
prevent potentially harmful conduct
If the RTA exercise reasonable care, it would not be liable even if the risktaking behaviour continued even reasonable warnings can fail
RTA should not be held liable while risk was foreseeable, chance of injury
was very low and no reasonable measures could have been taken
In Miletic v Capital Territory Health Commission the probability of harm befalling a cleaner from
attempting to move a fixed bed was held to be negligible.
Seriousness of Harm
Paris v Stepney Borough Council [1951] AC 367
Facts:
A veteran had lost sight in one eye, an injury his employer knew about
While working, he struck a bolt with hammer, and spark injured his second
eye - became blind
Cleaner slipped when she tried to push a bed into place and the castors on
the bed jammed - causing injury
Ruling:
You have to balance the risk of harm against the other factors
Even if there was a foreseeable risk - there was nothing to suggest there
was anything else the commission should have done (low court)
Burden
Graham Barclay Oysters
In order to identify what a reasonable person may have done to prevent it, must
consider:
Ruled - costs of actions were too high in this case - thus, no breach. Other
potential causes of action would have been entirely destructive of, or highly
disruptive to business (cease harvesting, strong warning label, find new location)
Quote- A precaution is considered to be too burdensome if it constitutes action of the most
difficult, expensive and inconvenient type.
Romeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263
Facts:
Ruling:
Have to consider the full burden of the precaution - here, too extreme to
fence off entire coastline area where presence of cliff was obvious
Burden has regard not only the specific location of incident, but entire
responsibility if e.g. gov dept
Western Suburbs Hospital v Currie (1987) 9 NSWLR 511, McHugh JA
When the cost of preventing a breach of duty does not exceed the likely
quantum of consequential damage, discounted by the probability of its
occurrence, it will generally be negligent for a person not to take the
precaution
This does not mean a defendant can escape liability by showing that his
economic costs would have exceeded that of eliminating the risk of injury
Need to consider soft values like justice, health, life and freedom
Wagon Mound held if action to eliminate [a risk] presented no difficulty, involved no disadvantage,
and required no expense then defendant liable.
Ruling:
Police work will often require partners to split up in difficult positions and
this can be necessary to meet the statutory obligations of being a police
officer
When dealing with children - very high risk of injury occurring + especially
with climbing equipment (dissent)
RTA v Dederer (2007) 234 CLR 330
Obviousness of Risk
This factor particularly applies where the particular negligence involves failing to
provide signage or warning. Vairy v Wyong Shire Council
Special Cases:
Children:
McHale v Watson (1996) 115 CLR 199
Facts:
Ruling:
Mentally Ill
Carrier v Bonham [2001] QCA 234
Facts:
Ruling:
The inability of someone with unsound mind to act rationally does not
have a comparable alternate standard against which their conduct can be
measured - not a normal stage of development through which all must pass
Failing to hold mentally ill similarly liable to normal people would see them
treated badly in society - policy implication of putting them in institutions
Loss of Control
Leahy v Beaumont (1981) 27 SASR 290
Facts:
Driver had the ability to stop and prevent injury by pulling over when
coughing started - negligent
Waugh v James K Allen Ltd 1964 SC (HL) 102
Facts:
Professionals
Rogers v Whittaker [1992] HCA 58
Facts:
There was a known risk of this injury happening - but W was never advised
of it (very rare)
W had expressed concern/interest in preserving sight in the other eye had asked repeatedly of risks of procedure
Ruling:
Inexperienced
Imbree v McNeilly [2008] HCA 40
Facts:
Ruling:
Held that learner driver owes all other road users the same standard of
care as any other driver on the road
o
By analogy, learner doctor should be held to same standard as an
experienced doctor
If the passenger acted as a supervisor may be contributory negligence,
but doesnt remove drivers negligence may also create voluntary
assumption of risk (mitigating factor)
Kirby fine to hold negligence due to the existence of compulsory thirdparty insurance