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Civil Law (Wrongs) Act 2002 - s 43 (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 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
In deciding whether a reasonable person would have taken precautions
against a risk of harm, the court must consider the following (among other
relevant things):

the probability that the harm would happen if precautions were not
the likely seriousness of the harm;
the burden of taking precautions to avoid the risk of harm;
the social utility of the activity creating the risk of harm.

Civil Law (Wrongs) Act 2002 - s 42

Standard of care
For deciding whether a person (the defendant ) was negligent, the standard of
care required of the defendant is that of a reasonable person in the
defendant's position who was in possession of all the information that
the defendant either had, or ought reasonably to have had, at the time of
the incident out of which the harm arose.

Foreseeability (breach)
Wyong Shire Council v Shirt (1980) 146 CLR 40

Council dredged a channel from a jetty it built to centre of lake

Along sides of the channel are signs readings 'deep water'
S said he was misled by the signs, thinking they meant the other water
was deep.
S went skiing in the shallow area of the lake - had an accident, became


Risk is not 'farfetched or fanciful with regards to actual facts

Foreseeability of the risk of injury and the likelihood of that risk occurring
are two different things
Duty - foreseeability of a 'consequence of the same general
Breach specific injury suffered
Overseas Tankship (UK) Ltd v The Miller Steamship Co or Wagon Mound (No.2)
[1967] 1 AC 617

Wagon Mound was a ship chartered by defendant

While filling ship, workers negligently spilled oil into water and spread to
next ship (Corrimal)

Welding work was being carried out on the Corrimal - but manager said
safe to work

After some time, oil caught fire and caused serious damage to ship

Test of foreseeability = whether the engineer ought to have foreseen the

risk of the outbreak of fire (i.e. must look at the specific risk)

Not Insignificant:

Calculus of negligence Shirt Test Mason J (at 14.) Wyong Shire Council v Shirt
(1980) 146 CLR 40
Reasonable Person:
s (42)

Standard of Care - for deciding whether person was negligent, the standard of
care required of the defendant is that of a reasonable person in the defendant's
position who was in possession of all the information that the defendant had or
ought to have had at the time of the incident from which the harm arose

Blyth v Birmingham Waterworks (1856) 11 Ex Ch 781 - 'the prudent and

reasonable man'

McQuire v Western Morning News Co [1903] 2 KB 100 ' the man on the Clapham

Papatonakis v ATC (1985) 156 CLR 7 - 'hypothetical person on the Bondi tram'

Probability of Harm
Bolton v Stone [1951] AC 850

Ms Stone was standing on the road outside her house, which is also across
from a cricket ground

Ground was smaller than standard size

A ball was struck out of the ground and hit her


Determination is one of fact, not of law, considering the whole factual


Held - not negligent - risk was too remote for a reasonable person

Probability of harm - refers to probability that when ball is hit out of

ground, it will hit a person

Existence of some risk is an 'ordinary consequence of life'

Miller v Jackson [1977] QB 966

Cricket ground next to cattle paddock, subdivided into a house as well

Balls hit onto property, causing minor damage to house

Club took measures to minimise damage - erected fence, urging batsmen

not to hit sixes

Negligence held - did not take sufficient measures, too much risk
RTA of NSW v Dederer (2007) 234 CLR 330

14 year old dived from bridge built by RTA 30 years earlier - injured

Defendants, RTA and council, had placed signs saying 'do not jump', but
were aware that signs were routinely ignored

No one had reported injury jumping off the bridge before


Than an action that might cause harm is frequent does not mean there is a
frequent risk of harm - need to consider whether the risk of hitting the sand
bar here was high
Duty of care imposes obligation to exercise reasonable care, not to
prevent potentially harmful conduct
If the RTA exercise reasonable care, it would not be liable even if the risktaking behaviour continued even reasonable warnings can fail
RTA should not be held liable while risk was foreseeable, chance of injury
was very low and no reasonable measures could have been taken

Callinan J must consider community interests in being able to cross

bridge without extra impediments

In Miletic v Capital Territory Health Commission the probability of harm befalling a cleaner from
attempting to move a fixed bed was held to be negligible.

Seriousness of Harm
Paris v Stepney Borough Council [1951] AC 367

A veteran had lost sight in one eye, an injury his employer knew about

While working, he struck a bolt with hammer, and spark injured his second
eye - became blind

Sued for negligence - not providing him with goggles


Knowledge of a particular vulnerability matters in assessing the nature of

a duty

However, a person with known vulnerabilities is still only owed reasonable


Cost of providing goggles was so low

If it is known that a particular workman is likely to suffer a graver injury
than his fellows, this must be considered in the employers obligation to
them (Lord MacDermott)
In considering what precautions must be taken, must account for
likelihood of injury and gravity of potential injury (Lord Morton)
Miletic v Capital Territory Health Commission [1996] ACTSC 22 (4 April 1996)

Cleaner slipped when she tried to push a bed into place and the castors on
the bed jammed - causing injury

You have to balance the risk of harm against the other factors

Nature of the duty owed is important

Even if there was a foreseeable risk - there was nothing to suggest there
was anything else the commission should have done (low court)

HCA - cheap solution by oiling castors, balanced against low risk of

someone getting this type of harm but which is serious
New South Wales v Bujdoso, held that physical harm transpiring from prison was considered
susceptible to being serious in nature.

Graham Barclay Oysters
In order to identify what a reasonable person may have done to prevent it, must

Financial cost of action

Being unable to sell the oysters for an indefinite period
Feasibility of action - warning consumers

Warning equivalent to ceasing to sell oysters

Potential indeterminacy - moving oyster operations
Have to find a lake free from human interference = unrealistic
Non-economic factors
Aesthetics (see Phillis v Dally, Wilkinson v Law Courts)

Ruled - costs of actions were too high in this case - thus, no breach. Other
potential causes of action would have been entirely destructive of, or highly
disruptive to business (cease harvesting, strong warning label, find new location)
Quote- A precaution is considered to be too burdensome if it constitutes action of the most
difficult, expensive and inconvenient type.

Romeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263

Romeo, 15 yr old girl, out drinking in a car park of a nature reserve

Fell off a 6.5m cliff onto the beach below = paraplegic
No accident had occurred before at the reserve - 8km of coastline
Car park had small wooden fence, 3m from edge and was designed for
public enjoyment - was a small path through fence
Alleged Commission should have done more to prevent people falling off


Have to consider the full burden of the precaution - here, too extreme to
fence off entire coastline area where presence of cliff was obvious

Burden has regard not only the specific location of incident, but entire
responsibility if e.g. gov dept
Western Suburbs Hospital v Currie (1987) 9 NSWLR 511, McHugh JA

When the cost of preventing a breach of duty does not exceed the likely
quantum of consequential damage, discounted by the probability of its
occurrence, it will generally be negligent for a person not to take the
This does not mean a defendant can escape liability by showing that his
economic costs would have exceeded that of eliminating the risk of injury
Need to consider soft values like justice, health, life and freedom

Wagon Mound held if action to eliminate [a risk] presented no difficulty, involved no disadvantage,
and required no expense then defendant liable.

Social Utility of the defendants actions

New South Wales v Fahy (2007) 236 ALR 406

Fahy, a police officer, called to attend to a robbery

Her partner left her when Fahhy went into see the victim of robbery
Developed psychiatric injury from experience - sight of blood, and victim
conveying 'last words' until ambulance arrived


Employer has obligation to provide safe workplace environment - this was

the alleged negligence (system of work below)

Police work will often require partners to split up in difficult positions and
this can be necessary to meet the statutory obligations of being a police

Preventing split up would interfere with police objectives = social utility

The Trustees of The Roman Catholic Church For the Diocese of Canberra and
Goulburn v Hadba [2005] HCA 31

Young child pushed off flying fox

Teacher rostered on duty merely looked away for 20 seconds when it
happened to see fight

School had 'no touching' policy during recess


Supervising teachers cannot be everywhere at once - beyond reasonable

to counter infinite potential situations

When dealing with children - very high risk of injury occurring + especially
with climbing equipment (dissent)
RTA v Dederer (2007) 234 CLR 330

Callinan J must consider community interests in being able to cross

bridge without extra impediments

Watt v Hertfordshire County Council [1954] 2 All ER 368 (CA) at 371

At breach, the courts will assess the question of balancing the risk against the end

Obviousness of Risk
This factor particularly applies where the particular negligence involves failing to
provide signage or warning. Vairy v Wyong Shire Council

Special Cases:
McHale v Watson (1996) 115 CLR 199

Barry 12 yrs old - threw steel rod at a wooden fence post

Steel rod ended up in eye of the plaintiff - 9 year old child
Barry's parents did not appeal against negligence finding against them but challenged ruling against child


The standard of care expected of children is the standard to be expected

of a child of that age
Consider the ability to understand risk at the 'stage of human
Still have to apply a reasonable person test - from the perspective of the
'ordinary child'

Mentally Ill
Carrier v Bonham [2001] QCA 234

P a bus driver, driving when D, a schizophrenic, stepped in front of bus

P suffered PTSD, could never work again while D suffered only minor
D had a history of mental illness - had decided to commit suicide by
stepping in front of bus


You can compare a child defendant to other 'ordinary children'

The inability of someone with unsound mind to act rationally does not
have a comparable alternate standard against which their conduct can be
measured - not a normal stage of development through which all must pass

Failing to hold mentally ill similarly liable to normal people would see them
treated badly in society - policy implication of putting them in institutions

unsoundness of mind is not a normal condition and not a stage of

development through which all humanity passes through

Loss of Control
Leahy v Beaumont (1981) 27 SASR 290

Due to vigorous bout of coughing, temporarily lost consciousness and


Driver had the ability to stop and prevent injury by pulling over when
coughing started - negligent
Waugh v James K Allen Ltd 1964 SC (HL) 102

Lorry driver had thrombosis attack, swerved and hit pedestrian

Had no warning of impending health attack


Not liable - no prior warning to respond to

Rogers v Whittaker [1992] HCA 58

W was blinded in one eye as a child

R, an ophthalmologist who performed eye operation which left W blind in
both eyes

There was a known risk of this injury happening - but W was never advised
of it (very rare)
W had expressed concern/interest in preserving sight in the other eye had asked repeatedly of risks of procedure


Doctors have duty to take reasonable care - standard of a professional in

the position of a doctor
The law should recognise that a doctor has a duty to warn a patient of a
material risk inherent in the proposed treatment a risk which the patient
is likely to attach significance too

Duty to provide information and advice to patient - based on the needs

and circumstances of the patient

Rule = court is to determine whether professional has satisfied advicegiving duty

Professionals = required to have a higher degree of foresight due to

specific knowledge (s 43 1a)
Gaudron J exemption may be made for therapeutic privilege for
instances of medical emergency or consideration of patients ability to
understand medical information

Imbree v McNeilly [2008] HCA 40

While on holidays, P allowed D to drive car on several occasions

P knew did not have their learner's permit
While D was driving, accident occurred causing injury to P
Trial judge - negligence held, but damages reduced because only standard
of care of 'learner drive' was upheld


Held that learner driver owes all other road users the same standard of
care as any other driver on the road
By analogy, learner doctor should be held to same standard as an
experienced doctor
If the passenger acted as a supervisor may be contributory negligence,
but doesnt remove drivers negligence may also create voluntary
assumption of risk (mitigating factor)
Kirby fine to hold negligence due to the existence of compulsory thirdparty insurance