Torts Lecture 12 Revision and Problem Questions

Guide to solving negligence problems  Duty of Care Established category (note special categories- mental harm, local authorities, good samaritans, rescuers)? OR i. Neighbour principle generally: D v S ii. Reasonable foreseeability i. Would the reasonable person in the position of the D have foreseen that there was a real risk that carelessness on his/her part could cause loss/harm to people in the P’s position? ii. What class of people might possibly be put at some risk of injury in some way if the D failed to take reasonable care? iii. Obviousness of risk: s5G (also look at nature of activity- was it recreational or dangerous recreational?) iv. Make sure you define the scope of the duty.

2. Breach of Duty i. Standard of care i. What standard of care is owed by the reasonable person in the circumstances? (note could be higher standards for certain defendants: s5O, s5P) ii. Failure to meet the standard of care i. Was the risk of injury reasonable foreseeable? s5B(1) ii. Perform calculus of negligence (probability and extent of harm v burden of taking precautions, and utility): s5B iii. Res Ipsa Loquitur Note special cases of public authorities and roads: s45.

2. Causation i. Damage i. Recognisable category (physical, economic, psychological) ii. Factual causation (note novus actus interveniens) iii. Legal causation: could the defendant have reasonably foreseen that kind of loss? 3. Defences 1. Contributory Negligence 2. Voluntary Assumption of risk 3. Illegality

Question One Adam was a 13-year old who loved an adrenalin rush. One day, he climbed up some flat railings on a bridge. Steadying himself by holding onto a lamppost, he dived head-first into the water, 9m beneath him. He struck a submerged sandbank and suffered a severe spinal injury. This bridge attracts large amounts of tourists, and the channel beneath the bridge is widely used by boating enthusiasts and swimmers. There were signs on the approaches to the bridge prohibiting diving, and signs prohibiting climbing on the bridge. Adam saw these signs before he dived. The dive was by no means rare. Ever since the bridge was built people had been jumping off the bridge, particularly young people. No one has ever been injured before in jumping off the bridge. Indeed, just the day before this fateful dive, Adam had jumped off the bridge three times without incident. 1. Advise the council (the owner/operator of the bridge) as to whether or not they owed a duty of care to Adam. Hint: read Dederer’s case (pay attention to Gummow J’s judgment) 2. Advise Adam as to how he could plead negligence against the council. 3. Advise the council as to whether there could be any defences that they could plead. Do not discuss damages.

Question 2 Erica won $50,000 from the NSW lotto. At a function where the funds were being handed over to Eric, she met George, an accounting lecturer. George approached Erica and said he could possibly help her. It was noticeable that George had consumed a few drinks, but nevertheless Erica was keen to see what George had to say. George introduced himself as a well-respected academic who had published widely on insider training issues. He said he would have no problems in advising Erica as to where she should invest her money. George told Erica of a company, whose prospectus he had only received that day. George suggested that Erica buy shares in the company, and reap the benefits. Erica said that she knew nothing about shares but that she didn’t want to just bank the money because the returns weren’t that good. George said, “Trust me- I am an expert but give me a call tomorrow and I will give you more accurate details.” The next day Erica followed George’s advice and invested in the shares. The broker questioned the new company saying she had not heard much about it, but Erica said she’d been given some very reliable information and that she was keen to buy. A month later Erica found out that the new company she’d invested in was now going through bankruptcy proceedings. Acise Erica of her chances of pursuing a negligence action against George.

Question 3 Warren planted a row of willow trees along the boundary between his place and that of his neighbour, Liz. As the trees grew, they began to cause Liz great distress when their branches began to hang over into Liz’s yard. This caused loss of light into her backyard and covered it with leaves and branches. The roots also got into the sewerage pipes and underneath her pool, causing the pipes to block up and the pool to lift and crack. Advise Liz whether there is anything she can do about the problem.