Breach of duty of care

broad steps to determine if duty
1. ascertain the standard of care owed by D and
2. ascertain whether the D fell below standard of care
general principles
1. s48(1) wrongs act
  1. 1) a person is not negligent in failing to take precaustions against a risk of harm unless-
    1. a) tge risk was forseeable(that is, it is a risk of which the person knew or ought to have known) and
      1. D could reasonably forsee the general risk of harm; wyong shire council v shirt
      2. forseeable if not 'far fetched or fanciful'
    2. b) the risk was not insignificant and
      1. s48(3) wrongs act
        a) Insignificant risks include, but are not limited to, risks that are far-fetched or fanciful and
        b) risks that are not insignificant are all risks other than insignificant risks and include but are not limited to, significant risks
    3. c) in the circumstances a reasonable person in the person's position would have taken those precautions
      1. D is not required to gaurentee that P will not be harmed because of the occurrence of the foreseeable risk, but must take reasonable care to ensure that such harm does not occur; derrick v cheung
2. calculus of negligence s 48(2) wrongs act
  1. in determining whether a reasonable person would have taken precaustions against a risk of harm, the court is to consider the following (amongst other relevant things)
    1. a) probability the harm would occur if care were not taken
      1. the only precautions that could be takent to avert injury are prohibitevly expensive or inconvinent; bolton v stone and romeo
    2. b) the likely seriousness of the harm
      1. court may require stingent mesures to ensure does not happen; caledonian collieriers ltd v speirs
      2. special precautionary mesures where D knows P may suffer greater damage than ordinary person; paris v stepney borough council
    3. c) the burden of taking precaustions to avoid the risk of harm
      1. s 55 wrongs act
        1) a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk
        2) An inherent risk is a risk of something occuring that cannot be avoided by the excersize of reasonable care
      2. s49(a) WA the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid a risk of harm for which the person may be responsible for
      3. s49(c) WA the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not in 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
    4. d) the social utility of the activity that creates the risk of harm
      1. E v Australian red cross
time for assessing risk
1. date of accident and knowledge that existed at that date of trial roe v minister of health
2. s58 WA in a case where D has held theirselves out as possessing a particular skill, the standard to be applied is to be determined by reference to the relebant circumstances as at the date of the alleged negligence and not a later date
policy consideration; personal automity and individual responsibility
1. P must carry a level of responsibility for their own safety; mulligan v coffs harbour city council
relevance of the obvious nature of risk
1. not reasonable for D to warn or prevent risk that should be obvious and well known to the P; romeo v conservation commission of the northern territory
ilegallity/ intoxication of P
1. a) whether P was acting illegally at the time of his or her death or injury or
2. b) whether the plaintiff was intoxicated by alchol or drugs that were consumed voluntarily, as well as the level of intoxication s 14G WA
3. courts wont generally imply liability; romeo

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Breach of duty of care

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	Created by tiffany nicholas almost 10 years ago