Element two - breach of duty

1
Element two - breach of duty

• Has D breached their duty of care to P ?
• If the duty of care question is decided in favour
  of the plaintiff, it then becomes a question of
  fact whether the particular conduct complained of
  is a breach of duty.
• A defendant has breached their duty of care if
  they failed to do what a reasonable person would
  have done in the same circumstances.

2
Breach of duty

• The standard of care is an objective one and the
  standard required is that of a reasonable person.
  This is a question of law.
• The defendant fails to show a reasonable standard
  of care if
• the risk of injury was reasonably foreseeable (a
  question of law) and
• there was a reasonable likelihood of the injury
  occasioned by it.

3
Breach of duty

• The defendant need only take precautions against
  foreseeable risks.
• CASE Bolton v Stone 1951
• CASE Wyong Shire Council v Shirt (1980)
• CASE Nagle v Rottnest Island Authority (1993)

4
Breach of duty

• The more serious the likely injury, the greater
  precautions the defendant must take.
• CASE Paris v Stepney Borough Council 1951
• Other relevant factors include
• The practicability of precautions
• CASE Romeo v Conservation Commission of the
  Northern Territory (1998)
• CASE Wyong Shire Council v Shirt (1986)
• The social utility of the defendants conduct
• CASE Watt v Hertfordshire County Council 1954
• CASE Agar v. Hyde Agar v. Worsley 2000

5
Standard of care

• The standard of care that is expected is that of
  the reasonable person equipped with the same
  skills and expertise as a person exercising a
  particular trade or profession.
• The standard of care is flexible and varies from
  situation to situation
• CASE Cook v Cook (1962)
• In relation to children, the standard is that of
  a child of similar age and experience
• CASE McHale v Watson (1966)

6
Cole v South Tweed Heads Rugby League Football
Club Ltd 2004 HCA 29

• Facts
• Ms Cole attended a champagne breakfast at the
  South Tweed Heads Rugby League Football Club
• She spent the day drinking at the Club
• The Club stopped serving Ms Cole after 12.30 pm,
  but her friends provided her with drinks for the
  rest of the afternoon
• At 5.30 pm the Clubs manager asked Ms Cole to
  leave the premises after she was seen behaving
  indecently with 2 men

7
Cole v South Tweed Heads Rugby League Football
Club Ltd

• The manager offered Ms Cole a taxi home, but Ms
  Cole rejected the offer in blunt and abusive
  terms
• She then left the Club with the 2 men, who
  assured the manager that they would take care of
  her
• At 6.20 pm Ms Cole was struck by a car near the
  Club and was seriously injured
• She was found to have a blood alcohol
  concentration of 0.238
•  Who was responsible for Ms Coles injuries?

8
Who was responsible for Ms Coles injuries?

• Issues before the court
• Did the Club owe a duty to take reasonable care
• to monitor and moderate the amount of alcohol
  served to Ms Cole?
• that Ms Cole travelled safely away from the
  Clubs premises?
• Does a general duty of care exist to protect
  persons from harm caused by intoxication
  following a deliberate and voluntary decision on
  their part to drink to excess?
• Did the car driver owe Ms Cole a duty of care?
• Did Ms Cole in any way contribute to her own
  injuries?

9
Cole v South Tweed Heads Rugby League Football
Club Ltd

• Breach of duty of care
• The evidence did not establish that the Club had
  failed to take reasonable care to protect Ms Cole
  from the risk of incurring the injuries
  sustained.
• This is because the Club would have discharged
  that duty when the manager offered Ms Cole a taxi
  to get home.

10
Element three - damage

• Has P suffered damage?
• The plaintiff must suffer some loss or damage as
  a result of the defendants breach of duty.
• The plaintiff must show some link between the
  damage suffered and the defendants conduct. Two
  factors for consideration are
• that the loss or damage was directly caused by
  the defendants breach causation and
• that the loss was not too remote from the
  breach - remoteness.

11
Causation

• Onus on plaintiff to establish that the damage
  they suffered was caused by the defendants
  conduct.
• The most widely used test is the but for test
  (and is a question of fact)
• The breach caused the damage if the damage would
  not have occurred but for the breach.
• CASE E H March v Stramare Pty Ltd (1991)
• CASE Alexander v Cambridge Credit Corporation
  Ltd (in rec) (1987)
• Note the but for test is not an exclusive
  test, e.g. there is the common sense test
• CASE approved in Chappel v Hart (1998)

12
Remoteness

• This permits the court to consider whether, and
  to what extent, the defendant should be
  responsible for the consequences of their
  conduct.
• It is a question of law and the test is whether a
  reasonable person could foresee such a happening.
  That is, the damage must be reasonably
  foreseeable.

13
Remoteness

• If the damage suffered by the plaintiff is too
  remote or far-fetched, it will not be
  recoverable.
• CASE Overseas Tankship (UK) Ltd v Morts Dock
  Engineering Co 1961 (also known as The Wagon
  Mound No 1 1961)
• CASE The Wagon Mound No 2 1967
• the test of remoteness was met where the risk
  was very likely or real