1. TORTS Lecture 9 Breach of Duty
Greg Young

2. 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

3. 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.

4. 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.”

5. 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.”

6. 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.”

7. Breach of Duty Standard of Care Duty breached IF SO
What standard of care is owed?
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

8. 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)

9. RTA v Dederer, Gummow J at [69]:
“What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk.”

10. Test for breach
Was the risk of injury to P reasonably foreseeable? SCOPE OF 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

11. 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)

12. 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

13. “Calculus of Negligence” under 5B(2)
Probability of harm occurring if care not taken
Likely seriousness of harm
Burden of taking precautions
Social Utility

14. 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

15. 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

16. 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

17. 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

18. How Duty and Breach work together– s.5B(1) & (2)
Waverley Council v Ferreira [2005] NSWCA 418
Facts

19. 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?

20. 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

21. 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.

22. 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

23. 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).

24. So would reasonable council remove the fence and undergrowth?
Ipp JA (Spigelman CJ & Tobias JA agreeing)
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).

25. 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)).

26. 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.

27. 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)

28. 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

29. 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

30. Special Breach of Duty Provisions under the Act
Professional Negligence (standard of care)

31. 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)

32. 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.”

33. Rogers v Whitaker (1992) 175 CLR 479
Facts
Relevance of professional opinion v conclusiveness

34. 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.

35. 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.

36. Dobler v Kenneth Halverson and Ors; [2007] NSWCA 335
Facts
Trial
At Court of Appeal

37. 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.

38. 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

39. Was the response of the d to this reasonable?
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)

40. 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