LAW 2202 EXAM NOTES
LAW 2202 EXAM NOTES
22
BREACH OF DUTY [STAGE 2]
Qualcast: Past findings of breach are only guiding and not binding upon later cases because they are finding’s ON FACT & left to the jury
Step 1 – Explicit articulation of failure
Use facts to articulate a precise failure which takes into account D’s actions Examples: o General failures to take reasonable care; Medical failures; Failure to warn
Step 2 – Set Standard of Care (SoC)
Per s.48(1)(c), breach is assessed with reference to the reasonable person in D’s position, thus the reasonable person must first be defined While normally an objective standard, courts may apply D’s traits to the reasonable person standard Further, Menlove clarifies the SoC is that of the reasonably prudent person Minors (McHale) A child will be held to the SoC of an ordinary child of comparable age Undecided whether the particular child’s intelligence and experience further modifies the standard, but the better view is that it does not Physical disability Little authority as to whether this is considered in setting the SoC Unlikely to be changed based on physical disability Mental incapacity (Carrier) Trial J – Modified SoC accordingly QLD CA: NO modification to account for mental disability Inexperience Cook: Modification of SoC to address total inexperience of wife at driving Imbree: Overturned Cook – NO circumstances where D’s inexperience will modify the SoC Special skills S. 58(a): Where D holds himself out as possessing a particular skill, the SoC is determined with reference to what could reasonably be expected of a person possessing that skill Phillips: o A person with special skills will be held to the SoC of a reasonable person possessing that special skill – not to the highest standard of care possible eg. Doctor o Notwithstanding, an Orthodontist’s SoC is to the reasonable Orthodontist o No consideration for inexperience for special skills – no difference between new doctor and experienced doctor Time of the assessment If D holds himself out as possessing a particular skill, the SoC is assessed with reference to the relevant circumstances (knowledge, awareness etc.) at the date of the alleged negligence and not at a later date (eg. Judgment date) (s.58(b); Roe) Omissions Landowners: If a DoC is found, the SoC of the reasonable person is adjusted for D’s physical ability & financial capacity
31
REMOTENESS OF HARM [STAGE 4] Metrolink Victoria – 2 stage Remoteness test: (1) Categorisation of the harm
This is a question of law – Policy considerations & precedent are relevant Ordinarily, a broad categorisation of the kind of harm will be appropriate Unusual injury or an injury which arises from a particularly unusual sequence of events, may allow for a narrow categorisation of the kind of harm Broad approach – Favourable to Plaintiff: o Mount Isa Mines: General mental illness o Nader: Psychiatric illness of some kind is reasonably foreseeable as a result of physical injury – regardless of rarity o Hughes: The kind of injury the boys suffered was burns Narrow approach – Favourable to Defendant: o Tremain: Damage was disease from rat urine Harm of the same kind does not extend to illness arising from a rat infestation RF P could have been harmed in certain ways (eg. Rat bite); NOT RF that P could contract a disease only contracted through contact with rat’s urine o Doughty: Harm categorised NOT by splashing, but as injury by eruption – which was not reasonably foreseeable o Thin skull rule may circumvent narrow categorisation – See below
(2) Reasonable Foreseeability
The risk of injury must be RF, in the sense that it is not FFF (Wagonmound #2), that [SAME KIND OF INJURY] suffered by P might result from D’s kind of negligence (Wagonmound #1) o Wagonmound #2: D’s special knowledge of a risk will be considered for RF Mount Isa Mines: RF of the precise harm which P suffered is not needed – merely RF as to the same kind of harm Hughes: Not necessary that the precise chain of events leading to the harm have been foreseeable Wagonmound #1: o Damage to the wharf as a result of fouling by the oil was a foreseeable consequence of D’s negligence, damage by fire was not Wagonmound #2: o The risk of fire in this instance was small but not FFF – it was a risk that may not have been expected to eventuate but was easy to eliminate with due care Mount Isa Mines: o P went to the scene of an accident, where 2 co-workers electrocuted o P tries to help burn victims o Later P discovered one of them died, P suffers rare mental illness Hughes: o Workers left manhole in street open and unattended o Manhole is covered by tent and surrounded by warning signs o Two boys took kerosene lamp and knocked lamp into manhole, lamp exploded, one boy fell into manhole and was badly burned
22
BREACH OF DUTY [STAGE 2]
Qualcast: Past findings of breach are only guiding and not binding upon later cases because they are finding’s ON FACT & left to the jury
Step 1 – Explicit articulation of failure
Use facts to articulate a precise failure which takes into account D’s actions Examples: o General failures to take reasonable care; Medical failures; Failure to warn
Step 2 – Set Standard of Care (SoC)
Per s.48(1)(c), breach is assessed with reference to the reasonable person in D’s position, thus the reasonable person must first be defined While normally an objective standard, courts may apply D’s traits to the reasonable person standard Further, Menlove clarifies the SoC is that of the reasonably prudent person Minors (McHale) A child will be held to the SoC of an ordinary child of comparable age Undecided whether the particular child’s intelligence and experience further modifies the standard, but the better view is that it does not Physical disability Little authority as to whether this is considered in setting the SoC Unlikely to be changed based on physical disability Mental incapacity (Carrier) Trial J – Modified SoC accordingly QLD CA: NO modification to account for mental disability Inexperience Cook: Modification of SoC to address total inexperience of wife at driving Imbree: Overturned Cook – NO circumstances where D’s inexperience will modify the SoC Special skills S. 58(a): Where D holds himself out as possessing a particular skill, the SoC is determined with reference to what could reasonably be expected of a person possessing that skill Phillips: o A person with special skills will be held to the SoC of a reasonable person possessing that special skill – not to the highest standard of care possible eg. Doctor o Notwithstanding, an Orthodontist’s SoC is to the reasonable Orthodontist o No consideration for inexperience for special skills – no difference between new doctor and experienced doctor Time of the assessment If D holds himself out as possessing a particular skill, the SoC is assessed with reference to the relevant circumstances (knowledge, awareness etc.) at the date of the alleged negligence and not at a later date (eg. Judgment date) (s.58(b); Roe) Omissions Landowners: If a DoC is found, the SoC of the reasonable person is adjusted for D’s physical ability & financial capacity
31
REMOTENESS OF HARM [STAGE 4] Metrolink Victoria – 2 stage Remoteness test: (1) Categorisation of the harm
This is a question of law – Policy considerations & precedent are relevant Ordinarily, a broad categorisation of the kind of harm will be appropriate Unusual injury or an injury which arises from a particularly unusual sequence of events, may allow for a narrow categorisation of the kind of harm Broad approach – Favourable to Plaintiff: o Mount Isa Mines: General mental illness o Nader: Psychiatric illness of some kind is reasonably foreseeable as a result of physical injury – regardless of rarity o Hughes: The kind of injury the boys suffered was burns Narrow approach – Favourable to Defendant: o Tremain: Damage was disease from rat urine Harm of the same kind does not extend to illness arising from a rat infestation RF P could have been harmed in certain ways (eg. Rat bite); NOT RF that P could contract a disease only contracted through contact with rat’s urine o Doughty: Harm categorised NOT by splashing, but as injury by eruption – which was not reasonably foreseeable o Thin skull rule may circumvent narrow categorisation – See below
(2) Reasonable Foreseeability
The risk of injury must be RF, in the sense that it is not FFF (Wagonmound #2), that [SAME KIND OF INJURY] suffered by P might result from D’s kind of negligence (Wagonmound #1) o Wagonmound #2: D’s special knowledge of a risk will be considered for RF Mount Isa Mines: RF of the precise harm which P suffered is not needed – merely RF as to the same kind of harm Hughes: Not necessary that the precise chain of events leading to the harm have been foreseeable Wagonmound #1: o Damage to the wharf as a result of fouling by the oil was a foreseeable consequence of D’s negligence, damage by fire was not Wagonmound #2: o The risk of fire in this instance was small but not FFF – it was a risk that may not have been expected to eventuate but was easy to eliminate with due care Mount Isa Mines: o P went to the scene of an accident, where 2 co-workers electrocuted o P tries to help burn victims o Later P discovered one of them died, P suffers rare mental illness Hughes: o Workers left manhole in street open and unattended o Manhole is covered by tent and surrounded by warning signs o Two boys took kerosene lamp and knocked lamp into manhole, lamp exploded, one boy fell into manhole and was badly burned
