Breach

Breach

1. 1. s 5B(1)(a): Foreseeability of Risk *NOTE: Degree of probability irrelevant

   • Wyong Shire Council v Shirt: Ambiguity of signage meant it was foreseeable a person might come to an erroneous conclusion about the nature of the lake.

2. 2. s 5B(1)(b): Risk 'not insignificant' *NOTE: Degree of probability irrelevant

   • Common law: 'not far-fetched and fanciful' an easier approach than CLA approach.
   • Ipp Report: 'not insignificant' = risk higher than 'far-fetched and fanciful' but lower than 'substantial risk'. Meant to be double negative, 'significant' is a high degree.
   • Drinkwater v Howarth: Risk which is much more than far-fetched an fanciful may not differ materially from a risk not insignificant.
   • Shaw v Thomas: 'NFFAF' = 'being real and therefore foreseeable'. *NOTE: Probability - Yes; Seriousness - No; Precautions - Yes; Social Utility - No. HELD: NO BREACH!
   • Doubleday v Kelly: Foreseeable risk that child would use trampoline in an incompetent way.
   • H v Royal Alexandra Hospital for Children: 1st transfusion - risk not foreseeable as Aus didn't know of HIV then. 2nd transfusion - Risk 'not insignificant' as HIV was made aware in Aus.

3. 3. s 5(1)(c): 'In the circumstances, a reasonable person would've taken those precautions.' (Defined in s 5B(2)

   • (a): Probability of Harm
     • Higher the probability, more likely that D should've taken more precautions.
     • Bolton v Stone: Cricket ball hitting P was not probable as it happened not more than 6 times in 30 years. If slightly more probable, different conclusion.
   • (b): Seriousness of Harm
     • Burnie Port Authority v General Jones Pty Ltd: More serious the harm, more care to be taken.
     • Romeo v Conservation Commission of the Northern Territory: Death and quadriplegia were among the reasonably foreseeable consequences of a fall from the cliff top. (Serious)
     • Paris v Stepney Borough Council: Risk was fraught with much graver consequence for the P than for his two-eyed companions.
     • NSW v Bujdoso: Prisoners involuntarily held in prison should be given close supervision if likely to suffer grave physical injury from other prisoners. (Child molester)
   • (c): Burden of Taking Precautions
     • Graham Barclay Oysters Pty Ltd v Ryan: Impractical to take precautions of ceasing harvest; sale with warnings; and alternative site for oyster farming. Entirely destructive or highly disruptive to business, precautions most difficult, expensive and inconvenient.
     • Romeo (HCA): D's failure to take precautions not unreasonable. Risk was obvious and b/c of natural condition of the cliffs was part of their attraction, unreasonable to enclose cliffs with barrier.
     • Caledonian Collieries Ltd v Speirs: Precautions after an accident does not equate liability.
   • (d): Social Utility
     • E v Australian Red Cross: D could not prove that concern for blood contamination outweighed difficulties it would ensue for bloody supply.
     • Balancing the 'lesser of two evils'
     • Bader v Jelic: Social utility that unobscured window was preferable over a cloaked window, which P fell through.
     • Rhodes v Lake Macquarie City Council: Native trees have social utility.
     • Harris v Bulldogs Rugby League Club Ltd: Social utility that attending football matches serves useful social purpose for many people.
   • 3A. The Reasonable Person
     • Papatonakis v Australian Telecommunications Commission: 'Hypothetical person on a hypothetical Bondi tram'
     • Objective test w/ subjective characteristics
     • Children - McHale v Watson: Give the reasonable person the same age as a child.
     • Mentally Ill - Adamson v Motor Vehicle Insurance Trust: No objective standard of care.
     • Professing Special Skill - Rogers v Whitaker: Give the reasonable person that special skill
     • Medical Professionals: Defined in s 5PA, SOC set out in s 5PB
     • Inexperienced Def - Imbree v McNeilly: Give objective SOC rather than subjective SOC to learner driver.
   • Roads & Traffic Authority of New South Wales v Dederer: No breach as D erected warning signs for jumping down bridge.
   • Nagle v Rottnest Island Authority: prohibition is most effective form of notice.

4. REMEDIES

   • 1. Common Law
     • (D) Compensatory: Butler - Put P back into same position before interference.
       • PD
         • Evans: Usually diminution value awarded unless restoration value is the only reasonable way of compensation. Glenmont: No market for replacement means starting point is at cost of restoration.
       • PI
         • Arthur: P's expenses should be recovered from D. Low $$+ Good Benefits = reasonable.
         • Van Gervan: market cost of services is the fair & reasonable value of such services. W taking care of H.
         • Loss of Expected Benefits (LEC) Salary x Life x 15% (Wynn: Contingencies of life)
         • Pain & Suffering/Loss of Amenity - Deprivation of ability to participate in normal activities (Murray: unable to have kids)/Loss of Expectation of Life (McGilvray: Decrease in life of 30 yrs)
       • PRINCIPLES
         • Egg-shell Skull; Indemnity Principle; Lump Sum; Once and For All; Duty to Mitigate.
     • (C) Aggravated: Lamb - Compensation for injury to P's feelings caused by insult.
       • Myers Stores Ltd: mental anguish from insinuations of suspicion, deprivation of liberty. $10k awarded.
     • (B) Exemplary/Punitive: Lamb - Punish, deter and condemn D's conduct.
       • Watkins: $3k awarded for assault
       • (B) & (C) NOT AVAILABLE IF P PROVOKED D's CONDUCT
     • (A) Nominal: Doesn't compensate. Only records infringement of P's rights (SSYBA & Stephens).
   • 2. Equitable
     • (C) Injunction: Order compelling D to do or refrain from doing something. Prohibitory = to stop interference (Onus v Telstra). Mandatory = to remove interference (Seidler v Luna Park).
       • Onus v Telstra: granded where there is proof that the apprehended damage is imminent, likely to occur, there is a real probability of substantial damage.
       • Factors of discretion: (1) If damages award are insufficient (Lincoln Hunt Australia v Willsee). (2) Continuing interference (Seidler/Graham/Toll Transport). (3) D's attitude and conduct (SSYBA - blatant trespass).
     • (B) Equitable Damages: Court can award equitable damages in lieu tgt with injunction (Supreme Ct Act s 25).
       • Barbagallo: What is required to do justice between parties.
     • (A) Declaration: Non-coercive court order stating parties' legal rights (Re F).