TORTS Lecture 6 Breach of Duty Clary Castrission clary@40k.com.au

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

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 Duty breached IF SO 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 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]) 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) 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: Effect 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 Latin for “the thing speaks for itself” Mere occurence of the accident constitutes the breach Early cases concerned dropping barrels from upper storeys of warehouses onto P who was below. Accident must raise presumption Chaproniere v Mason (1905) 21 TLR 644, : a stone found in a commercially produced bun Mahon v Osborne [1939] 2 KB 14: swab left in a patient Thing must be under D’s control why? So accident points to negligence on the D’s behalf Actual cause of accident must be unknown Where cause of accident proved, P cannot rely on Res Ipsa Loquitur- you would have to look at negligence. Barkway v South Wales Transport [1950] AC 185 D’s coach ran off road and crashed, killing P’s husband. However, it was established that cause of accident was burst tyre on coach. Question then: did P’s evidence show that there was defective maintenance of vehicle by D? Here, poor maintenance was shown, and negligence established. Nominal Defendant v Haslbauer (1967) 117 CLR 448 D drove her car into P’s parked car This would normally be Res Ipsa Loquitur BUT D proved that brakes failed immediately prior to accident (supported by evidence) HCA held: If brake failure was shown to be cause of accident, RIL did not apply. P had to show there was some other kind of negligence , or that D was somehow responsible for the brake failure. P failed on this issue. EVIDENTIARY BURDEN; USUALLY, P PROVES D HAS DOC, THEN BREACHES. BUT HERE, IF D SHOWS BREACH WAS NOT HIS FAULT, THEN IT REVERTS BACK TO P. Effect D must provide explanation of accident consistent with absence of negligence BY Cause was something for which he or she was not responsible OR That D took all reasonable care AND, IT STILL HAPPENED Transfers evidential proof to D- if D establishes, will not be liable.

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? 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: 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 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 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.

Facts Application of CLA 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 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. 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