<state issue, add in names ect> Duty of care: This question concerns the tort of negligence.

A claim of negligence may be brought before the court where there was a standard of care, a breach of the standard of that care, and damage resulting from the act or omission which lead to the breach. We each owe a duty of care to our neighbours to take reasonable care to avoid causing injury to others; Donoghue v Stevenson. Neighbour is defined in Donoghue v Stevenson by Lord Atkin: Anyone so directly affected by my actions that I ought reasonably have them in my contemplation as being affected when I am directing my mind to the acts/omissions in question. It has been previously been the courts opinion that reasonable foreseeability does not by itself conclusively create a duty of care, and that the proximity of parties must also be sufficiently close. In Jaensch v Coffey it was held there was sufficient proximity, and Wicks & Sheehan V SRA it was held that there was no sufficient proximity. These are good benchmarks to measure proximity by. <APPLY: Would a reasonable person have contemplated the plaintiff being effected?> <APPLY: was there reasonable proximity between parties? > < it is could be argued that (plaintiff in circumstances) was part of a class of plaintiffs exposed to a reasonably foreseeable risk of injury (a physical injury relating to activity)> However, following the High Court decision in Neindorf v Junkovic, proximity is of diminished importance and the test of proximity may no longer have to be satisfied. This is supported in the case of Tame v New South Wales according to McHugh J, The proximity issue is not regarded as an additional, separate requirement. Instead it is part of value of judgement made in determining whether the requirement of reasonableness is satisfied. Duty of care owner/occupier: In Australian Safeway Stores Pty Ltd v Zaluzna, it was established that owners and occupiers of property owe a reasonable duty of care to those entering into their premises. What is reasonable will depend on the circumstances, including the circumstances of entry onto the premises. This duty extends to people who enter the property without the consent of the owner / occupier; Hackshaw v Shaw and Bryant v Fawdon Pty Ltd. <Apply: Did plaintiff enter property of defendant and become injured?> In this case, the responsibility & authority of the defendant would have created a non-delegable duty of care which imposed a more stringent duty of care. <case showing duty of care enhanced by position of responsibility and authority> Agar v Hyde? Breach of standard of care: The second requirement for a successful action in the tort of negligence is a breach of the standard of the duty of care. A breach of the standard means the required level of care; even if the defendant has taken some steps to fulfilling his duty, it may not have been considered the required level, The standard of care is defined as being that of a 'reasonable man', as defined in Blyth v Birmingham Waterworks. A reasonable man considers the probability and gravity of a risk, the burden of eliminating that risk, and the social justification for not doing so.

The decision in Bolton v Stone established that defendant may be justified in disregarding a foreseeable risk of injury where the probability of that risk occurring is small and the circumstances are such that reasonable man would think it right to neglect the risk. The High Court in Wyong Shire Council v Shirt applied a test that deemed a risk to be foreseeable unless 'far-fetched or fanciful'. <apply: was the risk reasonably foreseeable or was it fanciful? Was the probability extremely small?> The gravity of the risk determines the standard of care required. If the risk is especially dangerous, there is a greater standard of care required; Swinton v China Mercantile Navigation Co Ltd. The measure of gravity is in relation to the actual situation, so if the actual condition of the plaintiff is such that the risk caused more harm to them than normal, and the plaintiff knew or should have known this, then they have an elevated standard of duty of care Paris v Stepney Borough Council. <apply: was the risk especially dangerous? Or would it cause a lot of harm (in the plaintiffs specific situation) and should

the defendant of known this?>

A reasonable person should consider the costs involved in eliminating a risk, as balanced against the aforementioned gravity of the risk and probability of it occurring; Woods v Multi Sport Holding. The more likely the risk, and the easier it is to eliminate, the less likely a defendants failure to take precautionary steps will be justifiable. According to S 49 Wrongs Act 1958 (Vic): The burden of taking precautions to avoid risk of harm includes the burden of taking precautions to avoid similar risks, the fact that the risk could have been avoided by doing something a different way does not of itself give rise to liability, and the subsequent taking of action does not constitute an admission of liability. <Is the cost to eliminate the risk disproportionately high, relative to the risk itself?> The social utility for not eliminating the risk is also considered by the courts, e.g in Watt v Hertfordshire CC, the risk of injury to the plaintiff fireman was weighed against the life-saving activity engaged in by fire service. <was there any social justification for not eliminating the risk?> <conclusion of standard of care, what would a reasonable man of same age (McHale v Watson ) and level of expertise (Chin Keow v Government of Malaysia) do?>

Damage <insert type of damage and why it can/cannot be claimed>

Damage must reasonable foreseeable and not be too remote from the consequences of the negligence. The specific damage does not have to be foreseen but only that the damage was in a class or similar to the damage that ought reasonably be foreseen; Overseas Tankship Ltd v Miller Steamship Co Pty < It should be noted that the requisite of reasonable forseeability does not eliminate liability against a plaintiff who has accrued an injury which has been effected by a special disability. This is known as the Thin Skull Principle and was established in Smith v Leech brain & Co. <if defendant had special disability, explain the disability and how this effects liability> <if defendant has no special disability, say the defendant appears to have no special disability as per the facts given,..> The plaintiff must also prove that the defendants negligence caused the damage suffered. The general test used to determine this aspect is a But For test the application of this test involves the consideration of a hypothetical situation where the circumstances are the same as the facts of the case except for the defendants negligence. Cork v Kirby McLean (unsuccessful causation), Lindeman Ltd v Colvin, Yates v Jones <But for the action or omission of the defendant, would the damage have occurred? And no novus actus interveniens (break in the chain of causation)?> Res ipsa loquitur (the thing speaks for itself): This refers to incidents for which there is no logical explanation other than the negligence of another party. The plaintiff must still prove the elements of negligence. Defences: There is a defence