Download Negligence: Breach of Duty and more Slides Law in PDF only on Docsity! BREACH' 1' WHO'IS'THE'REASONABLE'PERSON' 2' FORESEEABILITY' 3' CAUSATION'(CLA)' 6' CAUSATION'(COMMON'LAW)' 8' NOVUS'ACTUS' 10' REMOTENESS' 11' DEFENCES'TO'NEGLIGENCE' 16' VICARIOUS'LIABILITY' 21' NON?DELEGABLE'DUTY' 24' BREACH'OF'STATUTORY'DUTY' 26' DAMAGES' 29' '' '' DAMAGES'TABLE' '' ? ECONOMIC'LOSS' 31' ? NON?ECONOMIC'LOSS' 35' '' '' SIMPLE'APPLICATION'TESTS' 39' ! Breach of Duty 1 Breach The element of breach is the fault element. To establish a breach of duty, the plaintiff must prove that the defendant’s conduct fell below the required standard of care. !! Blyth v Birmingham Waterworks (1856): Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The standard of care is determined by reference to the actions or omissions of a notional reasonable person in the same circumstance of the defendant. It requires an assessment of whether the defendant responded to a reasonably foreseeable risk of harm to another person by taking precautions that a reasonable person in their position would have taken in the circumstances existing at the time. !! Involves consideration of the magnitude of the risk, the probability of its occurrence, and the burden of taking precautions to avoid the risk: Wyong Shire Council v Shirt (1980). !! The notion of the reasonable person is codified in s 5B of the Civil Liability Act (NSW). !! The notion of reasonableness varies over time and place and depends on the specific circumstances of each case: Bankstown Foundry v Braistina (1986). General Principles: Establishing a Breach of Duty The judgment of Mason J in the case of Wyong Shire Council v Shirt (1980) laid down the common law test in Australia for breach of duty: 1.! Would a reasonable person in the defendant’s position foreseen that their conduct involved a risk of injury to the plaintiff or to a class of person including the plaintiff? 2.! If yes, it must be determined what said reasonable person would do when turning to 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 responsibilities which that defendant might have. !! The Wyong Test has been affirmed recently by the High Court as the common law test in Australia for breach of duty – NSW v Fahy (2007). !! The Wyong Test has been codified in s 5B of the Civil Liability Act (NSW). o! It has been argued that s 5B(1)(b) imposes a more demanding standard than in Shirt as it requires the risk to be “not insignificant”.
