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Suggested answer negligence model case study

In the tort of negligence the plaintiff must prove that the defendant owed them a duty of
care breached that duty and that damages were suffered as a result of a breach of that
duty.
For Brooke to make a successful claim against the Yarra Valley City Council she must
establish that a duty of care existed. Here the test of reasonable foresee-ability must be
applied. The question to be asked is whether a reasonable person would foresee that
damage might result from the defendants action. It could be argued in Brookes case that
the signs put up by the Council created a reasonably foreseeable risk of injury of some
kind to someone such as herself. (See Chapman v Hearse 1961)
Before a duty of care can exist there must also be a proximate relationship between the
parties. The proximity requirement involves the concept of nearness or closeness and
includes physical, circumstantial and causal proximity. The relationship between Brooke
and the Council is sufficiently proximate to give rise to a duty of care. The Council has
a relationship of proximity with members of the public using the water under its control.
(See Nagle v Rottnest Island Authority 1993)
The second element required to prove negligence is that a duty of care has been breached.
To determine whether there has been a breach of duty the question must be asked whether
a reasonable person would have foreseen the harm in the circumstances and taken steps to
prevent it. The conduct of the defendant is measured against that of a reasonable person
in the same circumstances. Special skills, permanent disability or age may alter the test.
A council, which is responsible for the maintenance of a river such as the YVCC and
where there exists a hidden danger, will owe a duty of care to warn people of foreseeable
risks.
The law must then balance the degree of the risk and the likelihood of injury occurring,
against the expense and difficulty of taking precautions. If the possibility of injury is
small then the defendant may be entitled to disregard it. (See Bolton v Stone 1951).
However if the degree of injury is serious and the cost of taking precautions is low then
the defendant will be expected to take appropriate action to minimise the risk. (See Paris
v Stepney Borough Council 1951). The YVCC should have been aware that a water skier

could take the sign Deep Water to mean that it was safe to ski and thus suffer a serious
injury in proceeding to do so. The cost of changing the signs and warning people of the
dangers may have been small in comparison to the risk associated with not doing so.
Damage is also an essential part of negligence.

The plaintiff must show that the

defendants negligence caused the damage and that it was not too remote. The issue of
causation arises. The but for test may be applied where the question is asked but for
the conduct of the defendant, would the damage have been suffered?. In the case at hand
injury to Brooke would not have occurred but for the YVCCs failure to erect the proper
warning signs.
The plaintiff must also demonstrate that the damage suffered was not too remote. The
test is one of reasonable foreseeability. If the damage was reasonably foreseeable by the
defendant then liability will flow (See Overseas Tankship (UK) Ltd V Miller Steamship
Co. Pty 1967). Brooke may be successful in her claim against YVCC if she can prove
that a council would be aware that there was a real risk of physical injuries of the kind
sustained by her as a result of using the river due to the incorrect signs.
See Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 NB Relevance of
vicarious liability must be considered also

Tort and Negligence


Negligence in its legal sense means a failure in law to do what a reasonable person would
have done in the circumstances. To establish liability a plaintiff must first establish that
the defendant owed a duty of care towards the plaintiff. Over a period of years the law
has established the requirement that people (including companies and governments)
should conduct their affairs to the standard required of the reasonable person.
Before a plaintiff can recover compensation from a defendant in a negligence action, the
plaintiff must show three things:

That the defendant owed the plaintiff a duty of care;

That the defendant breached that duty of care; and

Personal injury or property damage suffered by the plaintiff as a result of that


breach (causation).

When is there a duty of care?


When a court determines whether a duty of care is owed, it will take intoACCOUNT a
range of legal principles and legal policy factors. Where a situation is a new one where
the relationship is not an established relationship including a duty of care, the courts take
into account numerous factors. These can include:

the kind of harm suffered by the plaintiff (for example, physical, economic,
mental);
the defendants control over the situation that gave rise to the harm, and the
plaintiffs vulnerability to that harm;
the nature of the relationship of the plaintiff and defendant, compared to other
duty relationships;
ethical and moral considerations, including human rights considerations; and
consistency and coherency of legal principles and relationships;
There are some easily established relationships where a duty of care exists, such as
occupiers liability, and motor vehicle liability. Outside of established relationships, the
courts will consider the factors listed above in determining a duty of care.
Even where a risk is reasonably foreseeable, a court may not hold that a defendant has a
duty of care. In determining this, the vulnerability of the plaintiff, whether the risk was
not insignficant, and the nature of the harm suffered are essential considerations. There
are also issues of inconsistency with other duties owed by the defendant in other
relationships. For example, where a social worker investigates allegations of child abuse

against a father, and the harm that follows is the loss of the fathers reputation and
employment, the courts will consider the duties of the social worker to investigate the
claims, and the duty relationship between social worker and child to override the
reasonably foreseeability of the risk of harm to the plaintiff.
Other situations that are also not so easily decided include: does aDRIVER owe a duty
of care to a person out walking at night on the highway? Does a landowner owe a duty to
a person trespassing on their land? Does an employer owe a duty of care to an employee
who was injured despite the fact that employer took every precaution then known to the
industry to protect the worker? They will be questions of fact for the court. Often, work
place issues will be dealt with under different legislation.