- The breach of a legal duty to take care, resulting in damage to the claimant which was not desired by the defendant (L.B Curzon, Dictionary of Law)
- Issue of the problem
- P would commence legal proceedings against [D] in negligence for the damage he/she has suffered as a result of the [D’s action]. In advising [P] of the likelihood of successfully commencing these proceedings, the relevant legal principles outlined in Civil Liability Act 2003 (Qld) and the relevant cases that interpret the Civil Liability Act will be applied to the facts of the case.
- In a case where an employee is negligent, there will be vicarious liability.
- Duty of care
- A duty of care is owed to those so closely and directly affected by his or her conduct that he or she ought reasonably to have them in contemplation as being so affected when undertaking the conduct in question (Donoghue v Stevenson). It is well established by the precedent (case) that [D’s persons] owes a duty to [P’s persons].
- The relationship between [P] and [D] does not fall within the established categories of duty of care. Consequently for the court to impose a duty of care, they would adopt the incremental approach based on reasonable foreseeability and salient features (Perre v Apand)
- REMEMBER: The question should be asked with reference to the specific events especially when the negligence involves extraordinary chain of events. For example:
It was foreseeable that negligent driving might cause another vehicle to overturn; and if this happened the driver of the overturned vehicle might be thrown out; he might end up in the gutter; the gutter might have water flowing in it; and the man might be lying in such a way as to be drowned by the water (Versic v Connors). OR
It was foreseeable that someone would come to his/her aid upon seeing that he/she was injured in a motor vehicle accident and that a driver who is negligent might run over the rescuer (Chapman v Hearse).
- Breach of duty
- To show that the duty was breached, the [D’s] standard of care and the foreseeability of the risk need to be determined. The test applied to determine the standard of care is an objective one (Glasgow v Muir) and therefore, the standard of care reflects that of a reasonable person.
- To establish there was a breach, the risk must have been reasonably foreseeable (s 9(1)(a) of CLA; Chapman v Hearse) and not insignificant or ‘not far-fetched or fanciful’ (s 9(1)(b); Wyong Shire). The risk was reasonably foreseeable and under common law, it was ‘not far-fetched or fanciful’ (Wyong Shire v Shirt) or according to Civil Liability Act, it was not insignificant (s 9(1)(b)). [P] must also establish that [D] has fallen below the standard of care by considering whether a reasonable person would have acted differently (s 9(1)(c); Wyong Shire). It could be said that probability of the risk was low (s 9(2)(a); Bolton v Stone) but because of the seriousness of the risk (s 9(2)(b); Goode v Nash) it is likely that a reasonable person would have taken precautions (s 9(2)(c); Caledonians Collieries v Spiers) by taking few steps.
- Therefore, [P] would most likely be able to establish that [D] has breached his duty by falling below the standard of care that to avoid the foreseeable risk.
- (‘But-for’ test) Evident from the facts, [P] has suffered an actual damage that is recognised in the form of personal injury. Having proved that [D] was negligent, it must be proved, subject to section 11 of the Act, that the negligence in fact caused his/her injury and that the injury is not too remote in law. Applying the common law “but for” test, would the plaintiff have suffered the injury but for the defendant’s negligence? (Barnett v Chelsea and Kensington Hospital) The answer is no. Moreover, by common sense and experience test (March v Stramare), the defendant’s negligence that solely created the necessary condition of the harm that ensued (s 11(1)(a) of CLA).
a. (Exceptional case: multiple tortfeasors) This case in an exceptional case which involves complex and multiple causes; there are more than one defendants and therefore the common law ‘but-for’ test (Barnett v Chelsea) will be inadequate (March v Stramare) as it will not surmount the evidential gap that is present.
a. Where the defendant’s action is not the factual cause of the plaintiff’s injury, the ‘but for’ test is incompetent and the court is likely to take a different approach (s 11(2)) to determine whether those multiple sufficient causes were the necessary condition of the harm. In March v Stramare, the court introduced the ‘common sense and experience’ test that applies to circumstances when there are intervening causes. On the facts of the case, the negligence of each of the defendants would be regarded, on the balance of probabilities, as an effective cause of the plaintiff’s damage (Nilon v Bezzina).
b. (Intervening causes) When determining causation which involves an intervening cause, novus actus interveniens, the court will depart from the common law ‘but-for’ test or section 11(1)(a) of the Act but, subject to sections 11(2) will try to find the necessary condition for the plaintiff’s injury by taking into consideration of all relevant matters. Since the chain of causation was broken, the intervening, not the initial, factual cause will be held solely responsible in law for the consequences of which it was a factual cause (March v Stramare).
a. The court will consider, subject to sections 6 and 7 of the Law Reform Act 1995 (Qld) apportionment of damages if there is more than one defendant (Chapman v Hearse) who is liable for the same harm.
- Having established that the defendant was the factual causation, whether the damage suffered by the plaintiff is too remote in law must be established (s 11(1)(b)). The damage suffered by [P] would not be too remote as he/she has suffered harm that is just that kind of damage that was likely to occur (Wagon Mound No 1) in the form of physical injury.
i. Although the plaintiff was more vulnerable to the risk due to the existing medical conditions, under the eggshell skull rule, the defendant will be liable for the whole extent of the harm as long as the initial injury was foreseeable (Smith v Leech Brain).
a. (Volenti) To establish the defence of volenti, [D] must establish that [P] had full knowledge of the risk and voluntarily accepted the physical and legal risk.
i. A subjective test is applied in establishing whether [P] was aware of the facts and circumstances that gave rise to the risk. In the case, there is a presumption that [P] was actually aware of the risk, if the risk is an obvious one (s14).
ii. According to section 13, ‘obvious risk’ is a risk that would be obvious to a reasonable person in the position of the plaintiff (Fallas v Mourlas). The risk in this case was can be classified as an obvious risk as it was just kind of risk foreseeable carried within that activity.
iii. [D] has no proactive duty to warn of the obvious risks (s15(1)). However, full knowledge of the risk or the existence of an obvious risk cannot alone imply consent. [D] must prove that [P] accepted voluntarily that there was a risk of injury (physical risk) and a risk that reasonable care would not be taken by the defendant (legal risk) (Insurance Commission v Joyce).
- (Contributory negligence: plaintiff’s negligence) [D] should be advised that contribution negligence is likely to be successful as a defence. This defence will be successful on the basis that [P] did not take sufficient care for his own wellbeing (s23(1);) – a question of fact based upon a reasonable person test (s23(2)(a); Joslyn v Berryman)– in agreeing to take part in the activity. Having established that the standard of care required by [P] is of a reasonable person, it is necessary to prove that the damage suffered by [P] was caused by that failure. The facts suggest that [P] has not taken reasonable precautions a reasonable person would have taken to prevent the foreseeable harm. The apportionment legislation directs the court to reduce the damages recoverable to the extent it thinks ‘just and equitable’ having regard to the [P]’s share in the responsibility for the damage (s10(1) of Law Reform Act 1995; Chapman v Hearse).
c. (Contributory negligence: intoxication) [D] should be advised that the defence of contributory negligence can be raised since both [P] and [D] were intoxicated at the time of the incident. The basis for such an allegation is that by being under the influence of alcohol, [P] failed to take reasonable care of their own safety, or by relying on an intoxicated person, [D], they failed to act reasonably. Queensland jurisdiction legislated that there is a presumption of contributory negligence (s47 of CLA) by [P]. [P] may be able to rebut this presumption of contributory negligence by proving on balance of probabilities, that their intoxication did not contribute to the breach of duty or that the intoxication was not self-induced (s47(3)). By virtue of s 48 of the Act, [P] is also presumed to be contributory negligent by relying on the intoxicated [D]. Again, this presumption may be rebutted upon proof that intoxication of [D] did not contribute to the breach of duty.