Tort of Negligence
Source :Pt X of Wrongs Act 1958 (Vic), it covers any claim for damages resulting from negligence regardless whether the claim is brought in tort ,in contract, under statute or otherwise.
Introduction and preliminary matters: The plaintiff can sue defendant under the tort of negligence. The key issue in this case is that … Breach and causation will be barriers for xx. She faces a struggle all the way with this claim.
Element of negligence: 5 Onus of proof is on the Plaintiff There are five accumulated elements needed to be fulfilled to successfully establish that the defendant has acted negligently. (Plaintiff to prove)
1. Damage
The plaintiff [fact], suffered (one of the following injury) which is a kind of harm fell in the category of compensable forms of damage defined in s43 WA. This element is definitely met.
Personal injury Recognized psychiatric injury Damage to property
2. Duty of care
The law imposes an obligation on the defendant to take reasonable care to prevent the harm to the plaintiff in the recognized category of relationship of …
Manufacture and consumer (Donoghue, 1932) The decision in Donoghue v Stevenson case affirmed that a manufacture (xx in his case) owed a duty of care to consumer in the production of its goods because it was foreseeable that if it did not use reasonable care, a consumer could be injured. Supplier to consumer (Grant, 1935) A retailer who sells products to others owes a duty of care to a consumer in the examination of products’ quality and prevention of harm to consumers from using the products. Occupier to visitors(p264)s14B(3) ,(4)WA (Zaluzna, 1987) Landlord and tenant Moto vehicle driver to other road users Solicitor and client(p263)s57,58 WAprofessionals Doctor and patient
Also, the injury is reasonably foreseeable if the defendant failed to act with reasonable care. The fact of that defendant did not foresee such risky consequence is irrelevant; the liability will arise so long as a reasonable person can foresee this form of risk.
1 Negligence
3. Breach of Duty
The defendant needs to have been ‘Negligent’ in the sense of having: Done something which a reasonable person in the position of the defendant would not have done under the circumstances. Failed to do something which a reasonable in the position of the defendant would have done under the circumstances Need to consider Whether there was a material risk of harm arising from the kind of conduct that is being complained of ; and How a reasonable person in the position of the defendant would have responded to this risk.
To prove the breach of duty, ‘the reasonable person test’ is required as an objective test of what a reasonable person would have or have not done under the circumstance of defendant. The motivations of the defendant himself are irrelevant in this test.
A common law two‐stage approach used in the Wyong 1980 case is adapted to determine whether there is a breach of duty by the defendant.
First, a material risk of injury is apparent and reasonably foreseeable (s48(1)WA) in the sense of not being’ far‐fetched or fanciful’ (s48(3)WA). In this case, the risk of injury or loss was reasonably foreseeable, because [fact] it is not far‐fetched or fanciful (s48(3)WA) to foresee that the plaintiff will suffer the injury and loss under the … (Very undemanding test. Exam satisfied test)
Second, ‘Calculus’ of Negligence needs to be considered when determining how a reasonable person in the position of the defendant would have responded to the material risk. As McHugh J in Tame indicated, this judgment should be based on the weighting up of various factors including probability of the risk occurring, the gravity of the damage that might arise if the risk occurs, and the practicability to deal with the risk. It is a balancing exercise to determine how practical and easy …
(1)Probability: the likelihood of the harm occurring is (high, median, low)
Bolton v Stone [1951] AC 850 a ball hit 6 times in 100 years on a cricket ground The risk in this case might’ve been foreseeable, but it was so highly improbable that a reasonable person could not have anticipated the harm to the claimant and would not have taken any action to avoid it. In the words of Lord Normand, "It is not the law that precautions must be taken against every peril that can be foreseen by the timorous."
(2)Gravity: even though the probability of the risk occurring is small, the potential damage is so serious that a reasonable person would not ignore the injury that could occur if no precautions are taken.
2 Negligence
Paris v StepneyBroough Council [1951] AC 367 The plaintiff is already blind in one eye. The employer still did not provide the employee with safety glasses that could prevent him from being partial blind to totally blind. Extra precaution should be taken here as it is easy and at little cost to prepare a pair of safety class or a guard around the machine.
(3)Practicability: the risk can be eliminated without unreasonable difficulty, inconvenience or cost; it is more likely that a reasonable person would have taken steps to deal with the risk.
Caledonian Collieries Ltd v Speirs(1957) 97 CLR 202 It can be seem that the cost of preventing harm is far more less than the cost of the damage being suffered. Just so, a reasonable person would take precaution to avert the harm. ( Easier to avert more likely to have breached duty)
4. Causation
Did the defendant’s negligence materially contribute to the plaintiff’s harm? (Bonnington) if the cancer already spread then any reasonable doctor can not cure Would the hard, have been suffered if the defendant had taken reasonable care? (Rogers) By using the ‘but for’ test under common law, it can be seen that, the loss, damage or injury [fact], but for the defendant’s conduct (fact), would not have occurred (was the loss avoidable if the defendant did sth reasonably?). In another word, defendant’s negligent act or omission on the balance of probabilities was a necessary condition of the occurrence of harm (factual causation). Hence, the loss or injury is a direct consequence of the breach of duty of care. (Based on the fact, there is no significant break in the chain of events or another explanation for the main cause of the loss, damage or injury. ) Onus of Proof: Burden is on the plaintiff to establish causation on the balance of probabilities (more likely than not): (Tubemakers) Source: Common law‐ ‘but for’ test or WA s 51 General principle:
5. Remoteness
Direct Consequences of Negligence NOT ENOUGH: The harm that is caused by the defendant‘s negligence must be of the class, kind, or type of harm that is reasonably foreseeable from the defendant’s negligence.
It is a test of reasonable foreseeability. (Wagon Mound)
So long as the Class, Kind or Type of Harm is Reasonably Foreseeable, it matters not that: The actual way in which the harm came about might not have been foreseen
3 Negligence
(Hughes) the fences were kicked off into the well and the liquid spilled out of the well to the plaintiff; however, it is still personal injury. The extent of the harm actually suffered is greater than what might have been foreseen, because the plaintiff is especially vulnerable. (seriousness is regardless)
6. Damages
Damages in a negligence case are to award the plaintiff with damages if the plaintiff would have been in the situation that the plaintiff had not been harmed by the defendant’s negligence.
Defenses (Defendant to establish the existence of any defenses)
The plaintiff contributed to the injury or loss by failing to take reasonable precautions against a foreseeable risk, this constitutes a contributory negligence. Plaintiff’s damages will be reduced by the extent that the plaintiff’s failure to take reasonable care (viewed objectively) for his or her own safety has contributed to the harm that the plaintiff has suffered. WA s26(1)(b) .
Froom v Butcher[1976] QB 286 In the car accident, plaintiff is not wearing a seat belt. That amount of damages cannot be recovered by the defendant.
This is a partial defense mostly likely approved in court. It relates to allocation of a proportionate harm and responsibility between the plaintiff and defendant.
2. Voluntary assumption of risk
A complete defense to a claim of negligence if the plaintiff meets all below three: Knew the facts constituting the risk or danger; and Appreciated or understand the relevant risk; and Freely and willingly consented to this danger of risk
At common law, the defendant is not liable in negligence if the plaintiff, in full knowledge of the relevant facts, voluntarily places himself or herself in a situation where the defendant could inflict loss or damage. This is a complete defense, it is hard to prove. The court imposes a very high threshold and holds a hard line against this defense since it is an unfair defense to the plaintiff for getting no damages at all.
Joyce; Shatwell Defendant’s defince failed because the plaintiff by far can only foresee the risks of getting wet from a water gun fight; the plaintiff could not assume the risks of a car accident
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