[Torts] Answer Guide (3) for Negligence


Structure for Negligence

Action in negligence
[P] would commence legal proceedings against [D] in negligence for the damage he/she has suffered as a result of [facts]. In advising [P] of the likelihood of successfully commencing these proceedings, the relevant legal principles outlined in Civil Liability Act 2003 (Qld) and the cases interpreting these statutory provisions, will be applied to the facts of this case.

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 (Lord Atkin in Donoghue). It is established by precedent that [D; facts] owes a duty of care to [P; facts] (Case). Therefore, as [D] and [P] were in the established relationship of [facts] to form a duty of care, [D] owed a duty of care to [P]. 

Breach of duty
Standard of care:
The next issue is the determination of the standard of care owed by [D] to [P]. The test applied in determining the standard of care owed by the [D] to [P] in a negligence action in an objective one reflecting the standard of a reasonable person (Glasgow v Muir). The standard of care will generally be determined without reference to personal characteristics of [D] except in limited circumstances. Therefore, [facts].

Reasonable foreseeability and negligence calculus:
In order to breach a duty, it is necessary for the risk of harm to be not insignificant (CLA s9(1)(b)) or traditionally under common law that it not be far-fetched or fanciful (Wyong Shire Council v Shirt), though Drinkwater v Howarth held the two meant the same thing. In the case, the risk was foreseeable (Chapman v Hearse) as a result of [D]’s conduct that is “not far-fetched or fanciful” (Wyong) or not insignificant (s9(1)(b)). [P] must establish that [D] has fallen below the standard of care expected of a reasonable [person; facts] in the [D]’s position (s9(1)(c)). To establish this element, [P] must consider the calculus of negligence. It could be said that though probability of harm (s9(2)(a); Bolton v Stone) is low but due to the comparative seriousness of the harm (s9(2)(b); Goode v Nash), [D] is more likely to find [D] as negligent. The burden of taking precautions (s9(2)(c); Caledonians Collieries) was low as [D] could have taken comparatively simple steps to avert the foreseeable harm such as [facts].

Conclusion:
[P] would most likely be able to establish that the [D] has fallen below the standard of care of a reasonable person in light of the probability, seriousness and minimal burden of taking precautions. Therefore, the court is likely to conclude that [D] has breached their duty of care.

Causation
Situation A (but-for test):
Having proved that [D] was negligent, the plaintiff must prove (section 12) that that negligence in fact caused his or her injures and that injuries were not too remote in law (s11). S11(1)(a) is a statutory modification of the “but for” test of the common law (Barnett v Chelsea and Kensington Hospital) test for determining causation. Applying this test to the facts, [P] would not have suffered harm but for [D]’s negligence. Therefore, [D]s failure to take reasonable care caused [P]’s injury.   

Situation B (Multiple sufficient causes):
In establishing causation in fact it is not necessary that one or other of the [D]s be the sole cause of the plaintiff’s damage (Nilon v Bezzina). In a case like this where there are multiple contributing causes of the [P]’s damage, the ‘but for’ test cannot be applied (March v Stramare) and therefore the court is to apply a test of common sense and experience (March v Stramare) to determine whether one or more of the possible causes were an effective cause of the damage. On the facts of this case the negligence of each of the [D]s would be regarded, on balance of probabilities, as an effective cause of the [P]’s damage.
                                             
Under the apportionment legislation, s6 of the Law Reform Act 1995 (Qld), [P] may only sue [D1] and [D1] may seek contribution from [D2] not proceeded against.

Situation C (novus actus interveniens):


Remoteness
The damage suffered by [P] would not be too remote as he/she has suffered personal injury which is just that kind of damage that was likely to occur (s11(1)(b); Wagon Mound No 2).


Defences
Volenti non fit injuria:
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.
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). 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. [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
Situation A:
[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).

Situation B:
[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.

Illegality
Since the negligence involved illegal conduct of either [P] or both [P] and [D], [D] may be absolved of liability. Section 45 of the CLA ensures that [P], who was engaged in an indictable offence at the time they were injured and that conduct contributed to the risk of harm, cannot be awarded damages. However, the legislation does allow the court to award damages if the denial of civil liability would be harsh and unjust in the circumstances (s45(2)).

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