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NEGLIGENCE to Be Successful in a Negligence Claim, The P

NEGLIGENCE to Be Successful in a Negligence Claim, The P

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Published by: josh_warm on Nov 15, 2009
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NEGLIGENCETo be successful in a negligence claim, the P must;1.Establish that the D owed them a duty of care;2.Prove that D breached that duty of care;3.Prove that the damage that P suffered was caused by the Ds breach, and that
 the damage was not too remote a consequence of that breach.DUTY OF CAREA duty of care can be established by;1.Being a recognised duty category; or2.The principles established in Donoghue v StevensonRecognised Duty Categories1.Landlord Tenant; Jones v Bartlett
2.Motorist Pedestrian; Pennington v Norris
3.Driver Other road user; Cook v Cook
Principles from Donoghue v Stevenson1.Reasonable Foreseeability2.Neighbour PrincipleYou must take reasonable care to avoid acts or omissions which you can reasonably
 foresee would be likely to injure your neighbour
Also need to take policy issues; Administrative issues, Public interest issues,the legislative factor, the balance of competing moral claims issue and the lossdistribution issue; into account.High court now favours incremental approach, that duties should be established ona case by case basis. Justice Dawson in Hill v Vanerp
The risk that is foreseeable at the duty stage must only be a risk of some kind ofinjury to a class of people that includes the plaintiff. Chapman v Hearse
Neighbourhood approach (proximity theory) regards 3 kids of proximity (SutherlandShire Council v Heyman;1.Physical proximity time and space
2.Circumstantial existing relationship
3.Casual can you link act to event
This test of proximity was discarded in Sullivan v MoodyThere is no duty to protect people from criminal activity (Modbury v Anzil)
Summary1.Need to reasonably foresee;
Some kind of damage
To some person in the same class as the plaintiff2.Factors that can limit the application of duty;
BREACH OF DUTYTo establish Breach of Duty you need to establish;1.The standard of care that the D owed the P2.Whether or not the D met that standard of careSection 5B of the CLA sets out the test for breach of duty. The standard requiredis that of a reasonable person (Blyth v Birmingham Waterworks Co) and is based onthe reasonable person at the time of the negligent conduct (E v Australian RedCross Society)Section 5H of the CLA sets out that there is no liability for obvious risksassociated with dangerous recreational activities.The objective test can be adjusted to consider age and experience (McHale vWatson)Tests for breach are (CLA);1.Was the risk foreseeable?2.Was the risk not insignificant?3.Would a reasonable person in the position of the D have taken precautionsagainst that risk?A not insignificant risk has a higher probability of occurrence than a risk that
 is not far-fetched or fanciful (Wyong v Shirt) but a lower probability of
 occurrence than a substantial risk. It is not a synonym for significant.
To determine the answer to test 3 you apply the negligence calculus from 5B(2) ofthe CLA.In the case of professionals, the reasonable person is adjusted to a reasonableperson professing the Ds skill. (Rogers v Whittaker)
Proof of Breach is an evidentiary matter if there is no evidence you can use Res
 Ipsa Loquitor The facts speak for themselves.
The general type of damage must be foreseeable (more narrow than in the dutyphase.) Does not mean likely to occur but is just less general than in duty phase.(Wyong Council v Shirt)
Burden of taking risk considers expense, difficulty and inconvenience of takingprecautions and the obvious nature of the risk. (Romeo v Conservation Commissionof NT)The saving of life justifies taking considerable risk. (Watt v HerefordshireCouncil)CAUSATION AND REMOTENESS OF DAMAGECausation established in section 5C & 5D of the Civil Liability Act 2002 (WA). Itis a question of fact, not of law.The plaintiff needs to establish that the damage was;1.Caused by the defendants negligence; and
2.Not too remote in law from the defendants act or omission.
Factual Causation;1.Was the defendants negligence a necessary condition of the occurrence of
 the harm? (CLA 5C)Scope of Liability Causation (CLA 5C)- Whether appropriate in ALL circumstancesthat the negligent persons liability extend to the harm so caused;
1.Was the damage too remote from the defendants act or omission,
2.Has an intervening event broken the chain of causation,3.Was the defendants act legally the relevant cause,
4.Do policy considerations require the casual connection to be disregarded,5.In all the circumstances should the defendant be liable, and6.Does deciding that scope of liability causation exists create unreasonableproblems for others in the position of the defendant?Onus of ProofThe onus is always on the plaintiff to prove on the balance of probabilities.Factual Causation

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