Breach of duty

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For a defendant to be deemed negligent, he must have breached his duty of care towards the plaintiff. In order to be deemed as breaching the duty of care, his actions must be proven to fall below the standard of care likely to be taken by the reasonable man. Establishing a breach of duty and ascertaining the standard of care is a complex process which is discussed below. For a short and succinct outline, check our summary page: Breach of duty (Outline).

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 371-421 [12.05-12.205]; 434-462 [12.220-12.290].

Introduction

[1] After establishing that the defendant indeed owed the plaintiff a duty of care, the plaintiff must prove that the duty of care has been breached. A breach occurs when the defendant has failed to meet the reasonable standard of care.

Standard of Care

[2] The standard of care is defined as the measures that a reasonable person (in the circumstances of the defendant) take to reduce the risk of harm. In other words, it is the response of a reasonable person to a foreseeable risk. The standard of care naturally varies over time, and is effected by circumstantial factors (see below). Thus, when a standard of care is established in one case, it will not automatically become a precedent for another - each case is judged on its own facts.[3] For example:

  • It is established in a case that the standard of care required the defendant to place warning signs around his pool.
  • This does not mean that in future pool cases warning signs will be required/will be enough.
  • Another case may not require a warning sign, and another case may require a fence around the pool.

Establishing a breach

[4] Thus, if a defendant's conduct falls below what is required by the standard of care, namely, he failed to respond to the foreseeable risk as reasonably required, he would be in breach of his duty of care. When the court determines the standard of care for each case, it must put itself in the defendant's shoes prior to the accident[5]. Firstly, the court takes a reasonable foreseeability test.

Reasonable foreseeability (breach)

[6] In order to assess a standard of care, it is necessary to consider the foreseeability of the risk. Obviously, if it is unreasonable to foresee that a risk exists, the defendant will not be required to take measures to prevent it. Notice that reasonable foreseeability changes in the stages of negligence - in establishing duty of care, it considered the foreseeability of the plaintiff. Now, it considers the foreseeability of a risk of injury. For example:

  • A visits B's house. Whilst in the house, he decides to climb onto a table and jump to another. He doesn't land properly and injures himself gravely in the eye on a glass bottle that was on the table.
  • In terms of a duty of care, A is reasonably foreseeable. B owes a duty of care to A because A is in his house, and it his reasonably foreseeable that his negligence could injure A.
  • However, it is not reasonably foreseeable that a risk is created by leaving a glass bottle on a table. Thus, reasonable foreseeability will not be satisfied for breach of duty.

The reasonable foreseeability test was discussed in Wyong Shire Council v Shirt:

  • Reasonable foreseeability is given a broad scope.
  • To be foreseeable, a risk does not have to be probable or likely to occur. That is a probability question and is applied later. An unlikely risk can still be foreseeable.
  • To be foreseeable, the risk merely has to not be "far fetched or fanciful".
    • "...when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful[7]."

In addition, the old question regarding whether the specific set of events or merely the general character of them needed to be foreseeable arose in Doubleday v Kelly:

  • "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 inquiry[8]."

Calculus of negligence

[9] Once it is established that the risk was reasonably foreseeable, it is time to determine how a reasonable person should have responded - what is standard of care. This is done by balancing several considerations. This process has been called the 'calculus' of negligence, and it gives emphasis to 4 main considerations when determining the standard of care:[10]

  1. Probability - if the risk of injury is very likely, the standard of care will be higher and require more protective measures.
  2. Gravity/Magnitude - if the potential injury is very serious, the standard of care will be higher and require more protective measures.
  3. Burden - however, the difficulty and expense of the measures are also taken into account. Namely, the standard of care is lowered by economic and practical constraints.
    • If a measure is too much of a burden on the defendant, it will not be required by the standard of care.
  4. Social utility - the standard of care is raised or lowered according to the effects which the proposed measure will have on society as a whole.

The first three factors are derived from the US[11]. They have since been accepted into Australian common law. For example, in Wyong Shire Council v Shirt:

  • "The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of 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[12]."

The Civil Liability Act 2002 (NSW) expanded on the common law by adding the consideration of social utility. Notice that the list is not exhaustive, and other relevant factors can also be considered.

A prime example of how this process is used is shown in Romeo v Conservation Commission:

  • Just because a risk is foreseeable, it doesn't mean the defendant has to do anything.
  • Rather, whether measures need be taken, and what measures, is determined by inquiring into all the relevant circumstances.
  • In this case, it was not reasonable to expect the Defendant to have done more. The accident was very improbable, and the risk of the cliffs was so obvious that the Defendant could have reasonably assumed no one would walk off them. In addition, requiring a fence would mean erecting a face everywhere along the coast - this is too much of a burden.

As mentioned before, the assessment of the standard of care must be established according to what a person would have done prior to the incident. This means that the judge must position himself prior to the accident. This was considered in Vairy v Wyong Shire Council:

  • When applying the test determining the standard duty of care, we must look forward and not back (as in, position ourselves before the accident not after it)
  • When looking forward, all possibilities are considered and proper weight is given to the relevant factors.
  • Obviously, if one is simply looking back, it is easy to say what should have been done to prevent that particular injury.
    • You are not trying to work out what should or could have been done in order to prevent the accident! You are assessing what a reasonable person would have done in response to a potential risk, in light of other considerations.

Probability

[13] In some circumstances, even though a risk is admittedly reasonably foreseeable, the reasonable person would not take steps to prevent it because it is so improbable. Accordingly, a defendant may be justified in not taking steps to eliminate a risk if he cant prove that the improbability is so great that a reasonable man would not take steps to eliminate it. This was established in England in Bolton v Stone[14]:

  • A woman was walking in the street and got hit by a cricket ball from a nearby stadium.
  • The House of Lords ultimately established that the possibility is so remote that no measures needed to be taken by the defendant.

The issue of probability (as well as other issues) is discussed in detail in RTA v Dederer:

  • The risk must be identified properly. In this case, although people frequently jumped off the bridge, the actual probability of injuring yourself was very low.
  • Also - "Whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct[15]." (reasonable care not perfect care).
  • A duty of care is discharged once the defendant exercises reasonable care. If a plaintiff is injured despite the defendant taking the reasonable measures, the defendant will not be liable.
    • "Whatever their scope, all duties of care are to be discharged by the exercise of a reasonable care[16]."

Dederer, together with Romeo and Bolton v Stone are all examples of cases where the court dismissed the Plaintiff's case because the probability of risk was very low.

Magnitude

[17] The standard of care will usually be affected by the gravity or likely seriousness of the injury - a graver risk requiring a higher standard of care.[18] In particular, a defendant may be required to take better measures to prevent an injury if he has knowledge of a particular vulnerability of a plaintiff (i.e. the plaintiff is has a heart condition etc). This was discussed in Paris v Stepney Borough Council:

  • A duty of care is affected by the consequence to an individual, and not a class of people.
  • It follows that a higher standard of care will be owed to a particularly vulnerable individual.
    • "it seems to me to follow that the known circumstance that a particular workman is likely to suffer a graver injury than his fellows from the happening of a given event is one which must be taken into consideration in assessing the nature of the employer's obligation to that workman[19]."
  • The standard of care is directly effected by the degree of the risk - a person carrying a candle through a powder magazine will be required to exercise better care than one walking through a damp cellar.

It therefore follows that a higher standard of care is required in all cases involving dangerous substances or greater risks. This is well cited in Burnie Port Authority v General Jones Pty Ltd:

  • "In the case of dangerous substances or activities, a reasonably prudent person would exercise a higher degree of care[20]."

An even higher standard of care will be attributed in a case of both a vulnerable plaintiff and a dangerous substance.[21]

Burden

However, the standard of care is also affected by the difficulty of taking precautions. Often, a defendant will be excused from taking certain precautions because they were too expensive, inconvenient or difficult to carry out in relation to the probability or magnitude of the harm. For example:

  • In both Romeo v Conservation Commission and RTA v Dederer the court decided that a reasonable person in the defendant could not be expected to erect fences everywhere there is a foreseeable risk of injury. It would cost too much money and the probability of the risk was too low.
  • Note that these cases both illustrate how the concept of looking forward and not backwards on the event is very relevant in assessing the burden:
    • This is because it is very easy to justify the cost and inconvenience of a measure after a tragic accident has occurred.
    • But when looking forward, the reasonable man would could not be expected to go to such lengths on the off chance that a tragic, unlikely accident will occur.

The effect of burden on the standard of care is discussed in Woods v Multi-Sport Holdings

  • It was not reasonable to "expect the respondent [Defendant] to provide players such as the appellant [Plaintiff] with a form of protective headgear in circumstances where none had been designed for the game, none was worn by players elsewhere, the rules of the game did not provide for such headgear, and the manner in which the game was played meant that there were considerations of convenience and safety that provided good reasons why such headgear was not worn."
  • This is an example of how the measure would be too much of a burden on the Defendant.

Accordingly, a risk may be foreseeable, but so ordinary and visible that the defendant could not be expected to respond. This was illustrated in Neindorf v Junkovic:

  • In certain cases, doing nothing may be a reasonable response to a risk.

Social utility

Another consideration (to be balanced with the others) is the social utility of the task that creates the risk. This means that a risk may be justified if it served a higher purpose. A common example is driving over the speed limit to save someone's life. In cases where the social utility (the benefit to society) of an act outweighs the probability and magnitude of the risk, a standard of care will be lowered.

The consideration of social utility affected the standard of care in E v Australian Red Cross Society:

  • Blood donations are indisputably of great social utility. Reducing the blood supplies (thus damaging society) can only be justified insofar as the probability and magnitude of the risk outweigh the loss the society suffers by hospitals having less blood for patients.
    • The question is whether "a prudent person in the position of those respondents would have determined that the concern for contamination outweighed the difficulties which would ensue from reducing the blood supply."

The idea of social utility was well stated by Denning LJ in Watt v Hertfordhire County Council:

  • "you must [also] balance the risk against the end to be achieved...The saving of life and limb justifies a considerable risk[22] ."

Inherent or obvious risk

[23] Other relevant considerations which affect the standard of care include whether the risk was maybe 'inherent' or 'obvious'.

Inherent risk

[24] An inherent risk is defined by s5I of the Civil Liability Act 2002 (NSW) as "a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill".[25] For example, a risk of a shoulder injury in rugby is clearly inherent to the sport and cannot be avoided by the exercise of reasonable care and skill - its a part of the nature of the sport.

  • There will be no liability for the materialisation (the occurrence) of an inherent risk.
  • However, the fact that a risk is inherent does not mean that the defendant did not have to provide a warning. Liability will still exist for a failure to warn the plaintiff.

The concept of an inherent risk can also be found in the common law, for example, in Rootes v Shelton:

  • "No doubt there are risks inherent in the nature of water-skiing, which because they are inherent may be regarded as accepted by those who engage in the sport[26]."

And also in Mulligan v Coffs Harbour CC:

  • "An inherent danger is a danger (or risk) attaching to a condition or activity that cannot be removed by the exercise of due care. That is, by exposing oneself to a condition or activity involving an inherent danger one has thereby become subject to the possibility of a danger crystallising[27]."

Obvious risk

[28] An obvious risk is defined by s5F of the Civil Liability Act 2002 (NSW) as "a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person".[29] For example, the risk of harm of jumping of a wall whilst rock climbing is considered an obvious risk[30], and so is the risk of being dumped by a wave whilst surfing.[31][32]

  • There will be no duty to warn for obvious risks.[33] Exceptions to this rule are:[34]
    • (a) The plaintiff asked for information about the risk.
    • (b) The defendant is required by a written law to warn.
    • (c) The defendant is a professional, and the risk is one involving personal injury from the provision of services.
  • A risk can be obvious even if it has a low probability,[35] or if it is not conspicuous or physically observable.[36]
  • The fact that a risk is obvious can also have an effect of the evaluation of contributory negligence.

In Thompson v Woolworths (Q'sland) Pty Ltd[37], the High Court noted:

  • "The obviousness of the risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response."

The obviousness of the risk was a factor considered by the court in RTA v Dederer as well as Romeo v Conservation Commission. Both cases are examples where the court concluded that the risk was obvious to the defendant, and therefore a lower standard of care is required.

The objective test - status of the defendant

Whilst the standard of care is determined using an objective test of a 'reasonable person', it may still be affected by the status of the defendant.

Children

A standard of care required by a defendant will be lowered if the defendant is a child. This was discussed in McHale v Watson[38]

  • Child threw a dart at a tree, missed, and blinded another child.
  • Young children are "expected to exercise the degree of care one would expect, not of the average reasonable man, but of a child of the same age and experience."
  • This is because childhood is a normal stage of humanity that everyone undergoes. It would be unfair to require a child to have the response of an experienced adult.
  • This does not break the idea of an objective test - it is consistent with it because it measures objectively with reference to other children.

Mentally disabled

A standard of care required by a defendant will not be affected by a mental disability. This was discussed in Carrier v Bonham[39]:

  • A man suffering from Schizophrenia walked in front of a bus, hurting himself. As a result, the bus driver suffered great mental harm, and sued the pedestrian.
  • "Unsoundness of mind is not a normal condition...and it is not a stage of development through which all humanity is destined to pass. There is no such thing as a 'normal' condition of unsound mind...For that reason it would be impossible to devise a standard by which tortious liability of such persons could be judged as a class."
  • "insanity is a misfortune and not a privilege. It attracts human sympathy but not, at least in the case of negligence, immunity under the law of civil wrongs."
  • Thus, the mental disability did not diminish or reduce his liability in negligence to the plaintiff."

Learners

Learners (as in learner car drivers or beginners in a profession) will be held to the same standard of care as anyone else. This was discussed in Imbree v McNeilly; McNeilly v Imbree[40]:

  • "That standard of care is not to be further qualigied, whether by reference to the holding of a licence to drive or by reference to the level of experience of the driver."
  • "It is, and must be, accepted that a learner driver owes all other road users a duty of care that requires the learner to meet the same standard of care as any other driver on the road."
  • "to describe the relevant comparator as a "licensed driver" diverts attention from the central inquiry: what would a reasonable driver do? Being authorised by the applicable law to drive unsupervised on a public road is neither a necessary nor a sufficient characteristic of the reasonable driver. Holding or not holding the relevant licence is irrelevant to the description or application of the relevant standard of care."

Professionals

[41] Where a defendant is considered a professional (that is, a man possessing expert skill in an area), he will be held to a higher standard of care in his field of expertise. Even if a professional has no experience, he is still held to the high standard of care of professionals.[42]

  • Originally, the courts followed the Bolam Principle, which said that a professional cannot be found negligent if he acted in accordance to a widely accepted practice (recognised by some professional body).[43]

This principle was eroded in Rogers v Whitaker[44]:

  • Facts: the Plaintiff had cosmetic surgery over a defective eye. In the process of the surgery, the Defendant injured the Plaintiff's good eye, thereby blinding her completely.
  • Held: Rejection of the Bolam principle. Rather, 'the standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill' .
    • Also, there is a duty to warn of a material risk (because that is what a reasonable doctor would do) regardless of any 'widely accepted practice'.
    • Risk is material is the patient would attach significance to it or if he expresses concern.

In other words, an engineer who is inspecting a ship will be required to exercise the standard of care of a reasonable engineer, rather than a reasonable person.[45]

s 5O of the Civil Liability Act 2002 (NSW) qualified the rule in Rogers v Whitaker by offering the Bolam principle (in a modified version) as a defence:

  • In short, a professional who acts in accordance with an accepted practice will not be deemed negligent.
  • However, the courts are allowed to to make exceptions if there are conflicting opinions or if applying that standard would be irrational in these particular circumstances.
  • s 5P states that this (the operation of s 5O) doesn't apply to the duty to warn, which still follows the rule in Rogers v Whitaker.

End

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References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Textbook, p. 372 [12.05]
  2. Textbook, p. 372 [12.05].
  3. Vairy v Wyong Shire Council (2005) 223 CLR 422.
  4. Textbook, p. 373 [12.10]
  5. Vairy v Wyong Shire Council(2005) 223 CLR 422
  6. Textbook, p. 374 [12.15]
  7. (1980) 146 CLR 40, 44
  8. [2005] NSWCA 151, 11
  9. Textbook, p. 377 [12.50]
  10. CLA, s5B.
  11. United States v Carroll Towing Co. 159 F 2d (1947)
  12. (1980) 146 CLR 40, 47-8
  13. Textbook, p. 390 [12.100]
  14. -1951] AC 850
  15. (2007) 324 CLR 330, 337
  16. (2007) 324 CLR 330, 344
  17. Textbook, p. 397 [12.115]
  18. Northwestern Utilities Ltd v London Guarantee & Accident Co Ltd [1936] AC 108, 126: "The degree of care which that duty involves must be proportioned to the degree of risk involved if the duty should not be fulfilled."
  19. [1951] AC 367, 387
  20. (1994) 179 CLR 520, 554
  21. Yachuk v Oliver Blais Co Ltd [1949] AC 386. A bottle of petrol was sold to a nine year old boy and he played with him causing himself injuries. Great liability for the defendant.
  22. [1954] 1 WLR 835 (CA)
  23. Textbook, p. 414 [12.165]
  24. Textbook, pp. 414-5 [12.170]
  25. Equivalent sections exist in Qld, SA, Vic and WA. No equivalents exists in ACT, NT or Tas.
  26. (1967) 116 CLR 383, 385-6, Barwick CJ
  27. Mulligan v Coffs Harbour City Council (2005) 80 ALJR 43, 72
  28. Textbook, p. 416 [12.180]
  29. Equivalent sections exist in Qld, SA, Tas, Vic and WA. No equivalents exists in NT or ACT.
  30. Trustees of the Portsmouth Youth Activities Committee (a charity) v Poppleton [2008] EWCA Civ 646
  31. Prast v Town of Cottesloe (2000) 22 WAR 474 (WASC)
  32. (more examples in p. 420 [12.200] of the Textbook)
  33. CLA, s 5H (1).
  34. CLA, s 5H(2).
  35. CLA, s 5F (3)
  36. CLA, s 5F (4)
  37. (2005) 79 ALJR 90
  38. (1965) 115 CLR 199
  39. [2002] 1 Qd R 474
  40. (2008) 82 ALJR 1374
  41. Textbook, p. 453 [12.255]
  42. Jones v Manchester Corp [1952] 2 QB 852.
  43. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
  44. (1992) 175 CLR 479
  45. Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd ("Wagon Mound" (No 2)) [1966] 2 All ER 709
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