LAWS1100 Nickolas James Business law 4_e_----_(chapter_6_carelessly_causing_harm)

LEARNING OBJECTIVES
6.1 When will a person be legally responsible for carelessly harming the person or property of another?
6.2 When will a person be legally responsible for carelessly causing financial harm to another person?
CHAPTER 6
Carelessly causing harm
James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089.
Created from uql on 2019-06-10 07:21:15.
Copyright©2014.Wiley.Allrightsreserved.

CHAPTER 6 Carelessly causing harm 217
JOHNNY AND ASH
[Ash and Johnny are still walking beside the river, discussing the events of the previous evening.]
Ash — Okay, let’s recap. Last night you left your assistant manager Cathy in charge of your restaurant
while you took the evening off. A child seated at one of the tables spilled their soft drink on the floor.
Half an hour later another customer, an older woman, slipped over in the spilled drink, and was knocked
unconscious when she banged her head on the floor. While waiting for the ambulance to arrive, the older
woman’s son confronted Cathy, and Cathy punched him, knocking him unconscious as well.
Johnny — It was quite a night.
Ash — We have already established that Cathy committed both a tort and a crime by attacking
the male customer. We have also established that it is unlikely that you would be held liable for her
criminal actions.
Johnny — Of course I’m not responsible for what happened last night. I wasn’t even there. What does
any of it have to do with me?
Ash — Well, it is your restaurant.
Johnny — I know. But I wasn’t there last night, I didn’t spill the soft drink, and I didn’t punch the guy
in the jaw. As far as I am concerned, if a person slips over it’s their own fault for not looking where
they are going, and if a person gets punched in the jaw then it’s probably their own fault for being a
jerk. I still don’t get it. Why are they coming after me?
Ash — As we have already discussed, there are many situations where the law makes us responsible
for harm suffered by another person, even if we did not deliberately and directly cause the harm. We
can be held responsible if we cause the harm indirectly . . . or if the harm is a result of our carelessness.
Johnny — How is anything that happened last night the result of my carelessness?
Ash — Let’s talk about the law of negligence.
CHAPTER PROBLEM
Johnny was not present when the older woman slipped over in his restaurant. As you make your way
through this chapter, consider whether Johnny should be legally liable for the harm suffered by the older
woman.
Introduction
In the previous chapter we considered the legal consequences of deliberately causing harm to another
person. In this chapter we consider the legal consequences of carelessly causing harm to another person.
There are many ways one person can carelessly cause harm to another person. They can carelessly cause
the other person to suffer loss or damage to their person or property, e.g. by leaving a spilled drink on
the floor of a busy restaurant. They can cause the other person to suffer financial loss by giving them
careless advice or selling them a defective product. Each of these situations could lead to civil proceed-
ings by the victim of the harmful conduct.
6.1 Carelessly causing harm to person or property
LEARNING OBJECTIVE 6.1 When will a person be legally responsible for carelessly harming the person
or property of another?
It is obvious that a person who deliberately causes harm to another person should be held legally res-
ponsible for the consequences of their actions. But what if the harmful act was not deliberate? Will the
person still be liable? In this section we consider the tort of negligence in detail.

218 PART 2 Legal Consequences
The tort of negligence
A person commits the tort of negligence if a careless act by the person causes harm to another. Negligence
is by far the most common tort: most acts that cause harm to other people are the result of carelessness
rather than intent. Most car accidents and other personal injuries, for example, are the result of negligence.
The law of negligence traditionally consisted primarily of case law rules. Since the civil liability
reforms following the ‘insurance crisis’ (see below) the law of negligence is now a combination of case
law and statutory rules.
LAW IN CONTEXT: LAW AND POLITICS
The insurance crisis
Many individuals and businesses manage the risk of being the subject of negligence litigation by taking out
insurance, in particular public liability insurance. This is insurance that provides protection against claims
arising from personal injury or property damage caused to third parties by the negligent actions of the insured.
The beginning of the 21st century saw a dramatic increase in insurance premiums generally and in
public liability insurance premiums in particular. Insurance became so expensive that many charitable
and community organisations, as well as service providers such as doctors, were unable to afford it and
had to limit their activities accordingly.
Many blamed the insurance crisis upon the legal system. It was claimed that the rise in insurance
premiums was the inevitable result of a rise in insurance payouts by insurance companies, and these
payouts were in turn the result of lawyers actively and inappropriately encouraging clients to commence
proceedings for personal injury and claim substantial damages, the tendency by courts to award sub-
stantial damages to plaintiffs, and fundamental defects in the law of negligence that made it too easy for
plaintiffs to recover compensation.
Others pointed out that lawyers have an obligation to advise their clients of all legal avenues available
to them, that courts award damages in accordance with well established principles (described later),
and that plaintiffs in personal injury cases are not given any special treatment by the courts. It was also
pointed out that insurance premiums were more likely to have risen because of a decline in the profits
made by insurance companies in recent years as a result of natural disasters, corporate collapses, ter-
rorist incidents and a global downturn in the economy.
Nevertheless in 2002, in response to the insurance crisis, the Commonwealth and State
Attorneys-General commissioned a review of the law of negligence chaired by Justice Ipp. The Ipp
Report recommended certain changes to the law, and the State and Territory governments subsequently
passed legislation that reformed the law of torts generally and the law of negligence in particular.1
Most
of these reforms are described in the following pages. Their general intent is to make it more difficult for
plaintiffs to recover compensation from defendants.
The reforms apply regardless of whether the action is brought for breach of duty under tort law, con-
tractual duty or statutory duty.
LAW IN CONTEXT: LAW IN THE MEDIA
Why McDonald’s scalding case could be a storm in a coffee cup
Revelations an Adelaide woman, Jessica Wishart, is suing a McDonald’s franchise for scalds she
received from coffee purchased at the restaurant have provoked outrage in the media, and inevitable
comparisons with the American case of Stella Liebeck.
These comparisons have been accompanied by calls for law reform, and commentary ridiculing the
plaintiff for making such a frivolous claim — accusations frequently directed against Liebeck.
1 Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act 2003
(NT); Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic);
Civil Liability Act 2002 (WA).

Liebeck became one of the urban legends of tort law after
she was awarded US$2.9 million for burns she received from
a spilt McDonald’s coffee over 20 years ago. The case has
been frequently used as a rallying point for critics of the negli-
gence regimes in Australia and elsewhere.
But as with many urban legends, the Liebeck decision is
frequently misunderstood. There are many reasons why we
shouldn’t panic and assume the Liebeck decision is likely to
influence an Australian court in the event it considers the cur-
rent claim.
First, in the US, negligence claims are often heard by a
jury. A jury of peers — everyday people — were the ones who
decided to award Stella Liebeck damages. In Australia, negli-
gence claims are decided by a judge.
Secondly, of the $2.9 million originally awarded, $2.7 million
were punitive — damages intended to punish the defendant,
McDonald’s — for their conduct, rather than directly compen-
sate the plaintiff for harm suffered.
The jury took exception to the fact McDonald’s had received
hundreds of complaints from consumers who had suffered
burns previously, and refused to respond. Also, the plaintiff
offered to settle her claim early on, seeking compensation
for medical expenses alone — about $10 500. McDonald’s
declined her offer to settle and dragged the matter out to litigation.
Punitive damages are not available in Australia in negligence claims. However it is interesting to note
that so much of the undeniably large payout awarded by the jury — 257 times what the plaintiff orig-
inally sought — is attributable to the fact the jury didn’t like the way McDonald’s ran its business,
including its litigation. Food for thought. And of the compensatory damages awarded, a 20% discount
was applied on the basis of contributory negligence by the plaintiff.
Thirdly, the trial judge reduced the jury’s award of damages to $640 000, and the parties then settled
before an appeal against the decision was heard. The settlement figure was confidential, as they usually
are, but it’s a fair bet that it was still more than the $10 500 in medical expenses the plaintiff originally sought.
Similar claims have been heard since Liebeck, both in the US and in other jurisdictions, and have met
with mixed results. In the UK case of Bogle and Ors v McDonald’s Restaurants Limited, the UK High
Court considered claims brought by a group of 36 plaintiffs — mostly children — who had suffered
personal injury caused by the spilling of hot drinks served by McDonald’s restaurants while in the res-
taurant, as opposed to this happening in a drive-through, as with Liebeck’s claim.
The Court stated that ‘Persons generally expect tea or coffee purchased to be consumed on the prem-
ises to be hot . . . persons generally know that if a hot drink is spilled on someone, a serious scalding
injury can result’ and found that McDonald’s was not liable. Similar decisions have been reached in
other cases in other jurisdictions, including the US.
What this demonstrates is that courts decide each case on its facts, and, at the present time, the
facts of the Wishart case have not been established. Jessica Wishart may have a legitimate claim
against McDonald’s, or she may not. Extensive media discussion, and clamouring for torts reform, does
not assist the legal process in determining what the facts of her particular claim are, and establishing
whether her claim should be upheld.
Australian torts law has already undergone extensive reform in response to perceptions that we are
becoming increasingly litigious.
Independent research doesn’t support that belief, and, attention-grabbing headlines to the contrary, the
legal system we have generally does a pretty good job of balancing the interests of plaintiffs and defendants.
So rather than reaching for the panic button and declaring that Jessica Wishart’s claim is proof that
the sky is falling, we should all take a deep breath and a cold shower — or have a nice warm cup of
coffee — and let the legal system do its job.
Source: Wendy Bonython, 23 April 2013, https://theconversation.com/why-mcdonalds-scalding-case-could-be-a-
storm-in-a-coffee-cup-13688.

For a legal action in the tort of negligence to succeed, the plaintiff must establish three things on the
balance of probabilities: (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached
that duty of care, and (3) the defendant’s breach caused the plaintiff to suffer harm. Even if all three
requirements are satisfied, the defendant may be able to reduce their liability or even avoid liability
entirely if they can establish certain defences.
CHECKLIST
The tort of negligence is committed by X if all of the following requirements are satisfied.
◼◼ X owes Y a duty of care.
◼◼ X breaches the duty of care.
◼◼ X’s breach causes Y to suffer reasonably foreseeable harm.
We now consider each of these requirements in turn.
Requirement 1: a duty of care
Whether the defendant owed the plaintiff a duty of care is a question of law. The onus is on the plaintiff
to establish the existence of the duty of care.
In most cases establishing the existence of a duty of care will be relatively straightforward, provided
that the relationship between the parties falls within the established categories of duty of care. It is, for
example, well established that:
•• motorists owe a duty of care to other road users,2
•• doctors owe a duty of care to their patients,3
•• solicitors owe a duty of care to their clients,4
•• manufacturers owe a duty of care to people who use their products,5
•• occupiers owe a duty of care to people who come onto their premises,6
•• architects owe a duty of care to the people who occupy the buildings they design,7
•• agents owe a duty of care to their principal,
•• directors owe a duty of care to the company, and
•• employers owe a duty of care to their employees.
If the relationship between the parties is not one that falls within the established duties of care, then
to establish the existence of a duty of care the plaintiff must show two things: (a) that it was reasonably
foreseeable that the defendant’s act or omission could cause harm to someone in the plaintiff’s pos-
ition, and (b) that the salient features of the case are consistent with the existence of a duty of care (see
figure 6.1).
Reasonable foreseeability
To establish the existence of a duty of care, it must be shown that at the time of the incident it was rea-
sonably foreseeable that the defendant’s conduct could cause harm to someone in the plaintiff’s position.
According to Lord Atkin in Donoghue v Stevenson [1932] AC 562, at 580:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, in law, is my neighbour? The answer seems to be: persons who are
so closely and directly affected by my act that I ought reasonably to have them in contemplation as being
so affected when I am directing my mind to the acts or omissions which are called in question.
2 Imbree v McNeilly (2008) 236 CLR 510.
3 Rogers v Whitaker (1992) 175 CLR 479.
4 Hawkins v Clayton (1988) 164 CLR 539.
5 Donoghue v Stevenson [1932] AC 562.
6 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
7 Voli v Inglewood Shire Council (1963) 110 CLR 74.

Does the relationship
between the plaintiff and
the defendant fall within
one of the established
categories of duty of care?
NO
Was it reasonably
foreseeable that the
defendant’s conduct could
harm the plaintiff?
YES
Duty of care established
YES
Are the salient features of
the case consistent with
the existence of a duty of
care?
NO
No duty of care
NO
No duty of care
YES
Duty of care established
FIGURE 6.1 Requirements for a duty of care
According to Lord Atkins’ ‘neighbour principle’, whatever a person is doing, they owe a duty of care
to those people they can reasonably foresee as likely to be affected by their conduct. When a person
is driving their car, they owe a duty of care to those people they can reasonably foresee as likely to
be affected by their driving: the passengers in the car, the other motorists on the road, pedestrians and
cyclists. As the owner of a restaurant, Johnny owes a duty to those people who come into his restaurant
to ensure that it is safe for visitors. Local authorities owe a duty to members of the public to ensure
safety in public places. School authorities owe a duty of care to their students while they are under the
school’s control.
Donoghue v Stevenson (1932) AC 562
May Donoghue met a friend at a café. The friend ordered and paid for a bottle of ginger beer for
Donoghue. When the bottle arrived, the waiter poured a portion into a glass tumbler. Donoghue drank
the contents of the tumbler. When Donoghue’s friend poured the rest of the bottle into the tumbler, the
remains of a partially decomposed snail fell out. The ginger beer had been packaged in an opaque
bottle, and therefore the presence of the snail had not been evident to Donoghue or the staff at the café.
Donoghue suffered from shock from the nauseating sight of the snail. She also suffered severe gastro
enteritis as a result of consuming the ginger beer. She sued the manufacturer of the ginger beer,

David Stevenson, for £500 in damages. Did Stevenson owe a duty of care to Donoghue even though
there was no contract between them, and there was no fraud? The court decided that when an article of
food, medicine or the like is sold by a manufacturer to a distributor in circumstances which prevent the
distributor or the ultimate purchaser or consumer from discovering by inspection any defect, the manu-
facturer is under a legal duty to the ultimate purchaser or consumer to take reasonable care to ensure
that the article is free from any defect likely to cause injury to health.
As a result of this decision, it is now accepted that all manufacturers owe a duty of care to the cus-
tomers who use their products. The Australian Consumer Law also creates statutory product liability for
loss caused by defective goods, but without proof of negligence. These statutory provisions are exam-
ined in a later chapter.
If the harm to a person in the plaintiff’s position was not reasonably foreseeable, the defendant will
not owe the plaintiff a duty of care.
Bourhill v Young [1943] AC 92
A motorcyclist collided with a motor vehicle as a result of the motorcyclist’s careless riding. The plaintiff
was standing approximately 10 metres from the point of impact on the far side of a stationary tram. She
did not see the accident, but she heard the accident and saw its aftermath. She suffered nervous shock
and sued the motorcyclist in the tort of negligence. The court decided that it was not reasonably fore-
seeable that the conduct of the defendant could cause harm to someone in the position of the plaintiff
and that, therefore, the defendant did not owe the plaintiff a duty of care.
It is not necessary to show that the defendant actually foresaw that their conduct could harm the plain-
tiff. It need only be shown that a reasonable person in the defendant’s situation would have foreseen the
possibility of harm. And it does not need to be shown that the harm actually suffered by the plaintiff
was reasonably foreseeable, only that some kind of harm to someone in the plaintiff’s position could be
caused by the defendant’s conduct.
Chapman v Hearse (1961) 106 CLR 112
Chapman was injured in a motor vehicle accident as a result of his negligent driving. Cherry stopped
to assist him. While attending to Chapman’s injuries on the road, Cherry was struck and killed by a
car driven by Hearse. Cherry’s estate sued Hearse for damages in negligence. Hearse claimed that
Chapman had also been negligent and was partially responsible for Cherry’s death. To succeed, Hearse
needed to establish that Chapman owed a duty of care to Cherry — that is, that a driver owes a duty
of care to the people that might stop to assist them in the event of an accident. The court decided that
even though the precise chain of events leading to Cherry’s death was not reasonably foreseeable, it
was reasonably foreseeable that if Chapman was involved in a car accident someone might stop to
assist him and that person might themselves be injured or killed. Therefore, Chapman owed Cherry a
duty of care.
Salient features of the case
It is not enough to show that it was reasonably foreseeable that the defendant’s conduct was likely to
cause harm to the plaintiff. The plaintiff must also show that the salient features of the case are consis-
tent with the existence of a duty of care. This means that the court will consider the relationship between
the parties and other features of the case and then compare those features with the salient (i.e. relevant)
features of other cases where a duty of care has been found to exist.

Sullivan v Moody (2001) 207 CLR 562
The plaintiff was accused by his wife of the sexual abuse of their child. The child was examined by a
doctor who reported his suspicions of abuse to the Department of Community Welfare. The Department
of Community Welfare investigated the allegations against the plaintiff and concluded that the alle
gations could not be proved. The plaintiff sued both the doctor and the Department of Community Wel-
fare, claiming that as a result of the allegation by the doctor and the investigation by the Department of
Community Welfare, he had suffered shock, distress and psychiatric harm. Was the plaintiff owed a duty
of care by (1) the doctor and (2) the Department of Community Welfare? In other words, does a doctor
owe a duty of care to the parent of a child patient, and does a statutory authority owe a duty of care to
an alleged perpetrator of child abuse? After taking the salient features of the case into consideration the
court concluded that the plaintiff was not owed a duty of care by either the doctor or the Department
of Community Welfare.
In the above case, in deciding whether or not such duties of care existed, the court took into account
the following salient features.
•• The need for coherency in the law: if the law of negligence could be used to prevent others from
passing on adverse information about the plaintiff, it would come into conflict with the law of
defamation.
•• Conflicting duties of care: if a doctor owed a duty of care to the parent of a patient, it could come
into conflict with the paramount duty owed by the doctor to the patient. Similarly, if a public authority
responsible for child welfare owed a duty of care to an alleged perpetrator of child abuse, it would
compromise its duty to protect the child.
•• The possibility of indeterminate liability: if the Department of Community Welfare’s duty of care
extended to the parents, it could also extend to other family members, teachers, or anyone accused of
child abuse.
Other salient features of the case that may be taken into account by a court include:
•• the control the defendant has over the situation and the relative vulnerability of the plaintiff,8
•• the relative knowledge and experience of the parties,
•• the type of harm suffered by the plaintiff and any relevant moral or ethical questions,9
and
•• the need for people to take personal responsibility for their own actions.10
Makawe Pty Ltd v Randwick City Council [2009] NSWCA 412
Makawe sued Randwick City Council (RCC) after the basement car park of an apartment building it
owned flooded. Makawe alleged that RCC had breached the duty of care it owed Makawe when it
approved the construction of the car park at a time when the council was in possession of information
which showed that the water table in the area was at about the same level as the proposed basement
floor slab. The trial judge decided that RCC did not owe Makawe a duty of care, and in making its
decision focused upon three salient features: control, vulnerability and reliance. Makawe appealed,
arguing that in focusing upon those three salient features the trial judge had disregarded other salient
features, namely concerns about the indeterminacy of the class to whom a duty is owed, reluctance
to impose a duty that would interfere with legitimate competitive conduct, and the need to resist the
imposition of a duty of care that would intrude into another area of law. The Court of Appeal upheld the
decision of the trial judge, confirming that RCC did not owe Makawe a duty of care. The court explained
how the various salient features should be weighed against each other, and confirmed that a court should
8 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.
9 Harriton v Stephens (2006) 226 CLR 52.
10 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469.

consider all of the salient features: ‘It is true that the authorities do not prescribe the relative importance
of any of the salient features. That is precisely the point of the “salient features” test. That an order of
importance is not prescribed does not mean that each does not have to be considered separately, with
an eye to its relative importance in the case in question. Indeed, I can see no way that the test can be
applied other than to consider each of the elements separately, with an eye to its relative importance
for the circumstances of the case in question. To borrow a concept from the criminal law, once all of
these salient features have been identified, and considered, the exercise involves a synthesis of those
considerations and their relative importance.’
CAUTION!
When solving a negligence problem and seeking to establish the existence of a duty of care, you only
need to consider ‘reasonable foreseeability’ and ‘salient features of the case’ if the relationship between
the parties does not fall within one of the recognised categories of duty of care. If the relationship does
fall within one of these categories — e.g. motorist and passenger — you need only cite the relevant
case law authority to establish the existence of the duty of care.
An existing relationship between the plaintiff and the defendant where the defendant has assumed
responsibility for the plaintiff is likely to give rise to a duty of care.
Tame v New South Wales (2002) 211 CLR 317
Mr and Mrs Annetts’ 16-year-old son left the family home to work for Australian Stations Pty Ltd (AS)
as a jackaroo at a cattle station in Western Australia. Before her son left home, Mrs Annetts phoned
AS and was assured that her son would work under constant supervision and would be well looked
after. AS assigned the son to work alone as caretaker at a remote station. In December 1986 a police
officer phoned the Annetts and informed them that their son was missing. In April 1987 the Annetts
were informed that the vehicle driven by their son had been found bogged in the desert. Later that day
his body was found. The Annetts sued AS claiming that their son had died as a result of the negligence
of AS and, as a result, they had suffered an ‘entrenched psychiatric condition’. The court decided that
there was a relationship between the Annetts and AS of such a nature as to give rise to a duty of care.
Blame falls on drinkers in High Court judgment 11
In November 2009 the High Court ruled that publicans have no general duty of care to protect patrons
from the consequences of getting drunk, thus shifting responsibility for the safety of drunken patrons
towards ‘the drinker, rather than the seller of drink’.
The High Court unanimously decided to overturn a decision of the Tasmanian Supreme Court that a
publican who returned motorcycle keys to a drunken patron, who then died in a crash, had breached
their duty of care. The patron, Shane Scott, had been drinking at a country pub when rumours emerged
of a police breathalyser nearby. A workmate suggested that he lock his motorbike in the hotel store-
room. The publican, Michael Kirkpatrick, agreed and Mr Scott gave him the bike keys. After drinking
seven or eight cans of Jack Daniels and cola, Mr Scott asked to have his bike back. Mr Kirkpatrick
said that after Mr Scott had insisted he was ‘fine’ to drive, he had returned the bike. About 10 minutes
11 CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390.

after leaving the pub, Mr Scott’s was killed in an accident. He died with a blood alcohol concentration
of 0.253. Mr Scott’s wife and the Motor Accident Insurance Board argued that Mr Kirkpatrick had been
negligent in serving Mr Scott too much alcohol and in failing to stop him riding away on his bike.
The High Court ruled that outside exceptional cases, hotel owners and licensees ‘owe no general duty
of care at common law to customers (requiring) them to monitor and minimise the service of alcohol or
to protect customers from the consequences of the alcohol they choose to consume. That conclusion is
correct because the opposite view would create enormous difficulties . . . relating to customer autonomy
and coherence with legal norms. Expressions like ‘intoxication’, ‘inebriation’ and ‘drunkenness’ are diffi-
cult to both define and to apply. The fact that legislation compels publicans not to serve customers who
are apparently drunk does not make the introduction of a civil duty of care defined by reference to those
expressions any more workable or attractive.’
The Australian Hotels Association hailed the ruling as sending a strong warning to drinkers to take
responsibility for their own actions, and cautioned against patrons seeing the judgment as a green light
to ‘get plastered’ at licensed venues. Professor Jim Davis at the Australian National University said the
case continued the High Court’s shift in negligence cases towards encouraging personal responsibility
for one’s own actions.12
ACTIVITY 6.1 — REFLECT
According to the court in Donoghue v Stevenson, the only test for establishing a duty of care was the
reasonable foreseeability test. Later courts imposed additional requirements, including the requirement
that the salient features of the case be consistent with the existence of a duty of care. Why do you think
these additional requirements were imposed?
Requirement 2: breach of the duty of care
Just because the defendant owed the plaintiff a duty of care it does not mean that the defendant is
responsible for the plaintiff’s loss. It must be established that the defendant has in fact been careless;
in other words, the defendant must have breached the duty of care that they owed to the plaintiff. The
defendant will have breached their duty of care if the risk of harm was foreseeable and significant, and
they failed to do what a reasonable person would have done in the circumstances.
The standard of care is a question of law to be established by the judge. Whether the defendant
breached that standard of care is a question of fact.
Identifying a breach of duty
At common law, the defendant does not breach their duty of care unless they fail to do what a reasonable
person would have done in the circumstances. This is known as the reasonable person test. In applying the
reasonable person test the court compares the conduct of the defendant with that of the ordinary and careful
‘person in the street’ or, as one judge famously put it, ‘the man on the Clapham omnibus’. If the defendant’s
conduct falls below the standard of the reasonable person they have breached their duty of care.
The civil liability legislation in all jurisdictions (except the Northern Territory) now provides that a
person will not breach their duty to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have
known);
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.13
12 Matthew Denholm and Nicola Berkovic, ‘Blame Falls on Drinkers — High Court Rules for Responsibility’, The Australian
(Sydney), 11 November 2009, 1.
13 Civil Law (Wrongs) Act 2002 (ACT) s 43(1); Civil Liability Act 2002 (NSW) s 5B(1); Civil Liability Act 2003 (Qld) s 9(1);
Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s 48(1); Civil Liability
Act 2002 (WA) s 5B(1).

In deciding whether or not a reasonable person would have taken precautions against a risk of harm,
the civil liability legislation obliges the court to consider (see figure 6.2):
(a) the probability that the harm would happen if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm; and
(d) the social utility of the activity creating the risk of harm.14
Was the risk
foreseeable?
NO
Did the defendant do what a
reasonable person would have done
in the circumstances, taking into
account (1) the probability of harm,
(2) the likely seriousness of harm,
(3) the burden of taking precautions and
(4) the social utility of the conduct?
YES
No breach
YES
Was the risk
insignificant?
NO
No breach
YES
No breach
NO
Breach of duty
FIGURE 6.2 Requirements to establish a breach of duty
14 Civil Law (Wrongs) Act 2002 (ACT) s 43(2); Civil Liability Act 2002 (NSW) s 5B(2); Civil Liability Act 2003 (Qld) s 9(2);
Civil Liability Act 1936 (SA) s 32(2); Civil Liability Act 2002 (Tas) s 11(2); Wrongs Act 1958 (Vic) s 48(2); Civil Liability
Act 2002 (WA) s 5B(2).

•• The risk was foreseeable — to establish the existence of a duty of care it is necessary to show that the
plaintiff (or someone like them) being affected by the defendant’s conduct was foreseeable. To estab-
lish a breach of the duty of care it must be shown that the risk was foreseeable. If the risk was not
foreseeable, the defendant has not breached their duty of care.
•• The risk was not insignificant — if the risk was an insignificant one, the defendant has not breached
their duty of care by failing to take precautions
•• The person failed to do what a reasonable person would have done — in comparing the defendant’s
conduct with that of a reasonable person (established by the reasonable person test), the court will
take into account the probability of harm, the likely seriousness of the harm, the burden of taking pre-
cautions and the social utility of the defendant’s activity.
•• The probability of harm — if the risk of injury was so small that a reasonable person would not have
done anything about it, the defendant has not breached their duty of care.
Bolton v Stone [1951] AC 850
Stone lived in a house adjacent to the Cheetham Cricket Ground. A batsman playing in a match at the
Cricket Ground hit the ball out of the ground. The ball hit Stone while she was standing outside her
house. It was only very rarely that a ball was hit over the fence during a match: it had only happened
five or six times in 37 years. The Committee and Members of the Cheetham Cricket Club (CCC) were
aware of the occasions on which it had occurred. No one had previously been struck by a cricket ball
that was hit out of the ground, and the street in which Stone lived was not the subject of heavy traffic.
Stone sued the Committee and Members of the CCC seeking to recover damages for the injuries she
sustained when hit by the cricket ball. She alleged that her injuries were caused by their negligence in
not taking steps to avoid the danger of a ball being hit out of the ground, such as moving the wickets
a few steps further away from her road or heightening the fence. The court decided that it was fore-
seeable that a person on the adjacent road could be struck by a ball hit out of the ground. However, it
also concluded that the CCC did not breach their duty of care to Stone because reasonableness did not
require precautions to be taken against the very small risk that someone would be struck by a ball hit
out of the ground, i.e. a reasonable person would not have taken any additional precautions given the
very low risk of injury.
In some circumstances the court will also take into account the obviousness of the risk in deciding
whether or not the duty of care has been breached: if an activity engaged in by the plaintiff is an obvi-
ously risky one the defendant is less likely to be found to have breached their duty of care by failing to
take steps to prevent the risk being realised.
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
While batting in an indoor cricket match, Woods mistimed a shot and was hit in the right eye. The
injury caused him to lose sight in the eye. The indoor cricket match was organised by Multi-Sport
Holdings Pty Ltd (MSH) and held at a facility owned and operated by MSH. MSH supplied some
equipment to the players (bats, balls and groin protectors) but did not provide helmets with a face
guard or pads. MSH did not display a sign warning of the risk of serious eye injury. Woods sued MSH
for damages alleging MSH had breached the duty of care it owed to him by (1) failing to supply a
helmet with a face guard to Woods, and (2) failing to warn Woods of the risk or danger of injury. The
court decided that a reasonable person would not have provided a helmet with a guard or warned
Woods about the risk of eye injury. Indoor cricket is fast paced and conducted in a confined space,
and there is an obvious risk of collision between players and of any player (batter, bowler or fieldsman)
being hit by the ball. MSH did not have an obligation to warn players of this obvious risk or to pro-
vide them with protection.

The question of obviousness of risk also relates to whether or not the plaintiff has voluntarily assumed
the risk, a defence considered in more detail below.
•• The likely seriousness of harm — if the possible harm arising from a careless act is not very signifi-
cant then the defendant will owe a low standard of care, but if the possible harm is very serious then
they will owe a higher standard of care.
•• The burden of taking precautions — if the defendant could have avoided the risk of injury by taking
some relatively simple precautions, their failure to take those precautions is likely to be a breach of
duty. However, if the risk of injury could only have been avoided by taking significant, expensive and
onerous precautions, it is less likely that the defendant will have breached their duty by failing to take
those precautions.
•• The social utility of the activity — at the time that the defendant’s conduct was alleged to have
caused harm to the plaintiff, was the defendant doing something that was socially useful? If so, it is
less likely that they will be found to have breached their duty of care. For example, an ambulance
driver who is driving a patient to the hospital, and who is involved in a car accident, is less likely
to be found to have breached their duty of care because at the time they were doing something
socially useful.
Paris v Stepney Borough Council [1951] AC 367
Paris worked for the Metropolitan Borough of Stepney (MBS) as a fitter’s mate in the garage of MBS’s
Cleansing Department. Due to an injury he sustained as a result of an air raid during World War II,
he was practically blind in his left eye. MBS was aware of this. Paris was removing a rusted bolt
using a steel hammer while performing maintenance work on the under-carriage of a vehicle when
a piece of metal flew off and entered his right eye causing him to lose sight in that eye as well. It
was known to MBS that when employees undertook the type of work being performed by Paris at
the time he was injured, dirt sometimes got into their eyes and pieces of metal might sometimes fly
off when bolts were removed. However, it was not usual for employers to supply goggles to per-
sons employed in garages and engaged in similar types of work. Paris sued MBS for negligence.
He alleged that MBS breached its duty of care to Paris by (1) failing to provide him with suitable
goggles for the protection of his eyes while he was engaged in the work he was engaged in, and
(2) failing to require him to wear the goggles. The court stated that a reasonable employer would take
different precautions against a risk of likely injury for different employees. In addition, it stated that
the gravity of the consequences of injury to the particular employee was a relevant consideration in
determining the reasonable precautions against injury that an employer was required to take. In this
case since the possible harm to Paris was more serious than the possible harm to a worker with
sight in both eyes, the standard of care owed to Paris was higher than usual. A reasonable person
in the position of the Council would have insisted that Paris wear protective goggles. The Council
had failed to do what a reasonable person would have done in the circumstances, and had therefore
breached its duty of care.
Latimer v AEC Ltd [1953] AC 643
A factory owned by AEC Ltd was flooded and the floor became slippery. Latimer slipped on the wet
floor and sued AEC Ltd for compensation. Had AEC Ltd breached its duty of care? AEC Ltd could have
closed the factory while the floor was wet, but this precaution was a significant and expensive one
and a reasonable person would not have taken the precaution in the circumstances. AEC Ltd had not
breached its duty of care.

Watt v Hertfordshire County Council [1954] 1 WLR 835
Watt was employed as fireman in the fire service operated by the Hertfordshire County Council (HCC).
He was stationed at the Watford fire station. The Watford fire station was not a large one and had only
a few vehicles. Its equipment included a jack that was on loan from the London Transport Executive.
The jack was used only on rare occasions. Only one of the vehicles at the station was specially fitted
to carry the jack. The station received an emergency call to attend an accident not far from the station
in which a woman had been trapped under a heavy vehicle. The jack was required, but the vehicle
specially fitted to carry the jack was otherwise engaged. Consequently, the officer in charge ordered the
jack be put on another vehicle on which there was no means of securing it. While travelling to the scene,
the jack moved inside the vehicle and hit Watt’s leg, injuring him. Watt sued the HCC claiming damages
for negligence. The court decided that (1) the HCC was under no duty to ensure that a vehicle specially
fitted to carry the jack was available at all times, and (2) the risk taken in travelling on a vehicle with a
jack which was not secured was consistent with the risks that would normally be faced by a fireman and
not unduly great given the emergency situation.
A lower duty of care
The court may decide that a defendant owes a lower duty of care (and is less likely to have breached
their duty of care) because of:
•• their status as a minor, or
•• their inexperience.
McHale v Watson (1966) 115 CLR 199
A 12-year-old boy and a 9-year-old girl were playing together. The boy threw a dart at a wooden post.
The dart bounced off the post and hit the girl in the eye. In deciding whether or not the parents of the
boy were liable for the negligence of the boy, the court had to decide if the boy had breached his duty of
care. The court decided that the standard of care to be applied was not that of the reasonable person,
but the standard ‘to be expected of an ordinary child of comparable age’, which was a much lower
standard.
Until relatively recently the position at common law was that knowledge by the plaintiff of a defen
dant’s inexperience would result in the defendant owing a lower standard of care.
Cook v Cook (1986) 162 CLR 376
Margaret Cook (MC) did not hold, and never had held, a driver’s licence or learner’s permit and she was
quite inexperienced as a driver. This was well known to Irene Cook (IC), a relative of MC. During a family
gathering, MC and IC set out to drive to a local shop. On the drive, MC told IC that she intended to
apply for a learner’s permit the following day. In response, IC stopped the car and told MC: ‘If you are
going to drive you may as well start now’. MC resisted but, after further encouragement from IC, started
to drive. While driving through an intersection, MC deliberately accelerated and steered the car off the
road to avoid a parked car and drove the vehicle into a concrete electricity post. IC was injured. IC sued
MC for damages on the basis of negligence. Does the duty of care owed by a driver to a passenger
require that the driver exercise the degree of skill that could reasonably be expected of an experienced
and competent driver in the circumstances, even if the driver and the passenger both know that the
driver is unqualified and lacks that skill? The court decided that MC had been negligent. It explained
that in special and exceptional circumstances the standard of care owed by a driver to a passenger
might be modified from that which is expected of a reasonably competent and experienced driver.

Given that (1) MC was to the knowledge of IC quite inexperienced and had not even obtained a learner’s
permit, (2) IC was not an unwilling passenger and had instigated the driving of the vehicle by MC, and
(3) at the time of the accident, the relationship of MC and IC bore some similarity to that of instructor
and pupil, there were special and exceptional circumstances giving rise to a lower standard of care.
That is, MC should be judged against the standard expected of an inexperienced and unqualified driver.
And in the present case, MC’s action in accelerating off the road to avoid the parked car was careless-
ness over and above that which could be expected of mere inexperience.
However, in 2008 the decision in Cook v Cook was overturned by the High Court of Australia.
Imbree v McNeilly (2008) 236 CLR 510
Paul Imbree and Jesse McNeilly were on a 4WD trip in the Northern Territory with others. McNeilly
was 16 years and 5 months old, had little driving experience and did not hold a driver’s licence or
learner’s permit, all of which Imbree was aware. At various times during the trip, Imbree allowed
McNeilly to drive the 4WD station wagon for 30 to 40 minute stints. Imbree sat beside McNeilly in
the front passenger seat. After driving for some time, McNeilly and Imbree saw a piece of tyre on the
road. McNeilly endeavoured to steer around the tyre by veering to the right. Imbree yelled at McNeilly
to brake but he did not. When the vehicle was at the far right-hand side of the road, McNeilly made
a sharp left turn and accelerated. The vehicle rolled. Imbree sustained spinal injuries in the accident
and was rendered a tetraplegic. Imbree sued McNeilly in the tort of negligence. A majority of the High
Court decided that (1) the standard of care owed by McNeilly to Imbree was the standard of care
expected of a reasonable driver, and was not modified by the experience of the driver or whether they
were licensed, and (2) Imbree’s knowledge of McNeilly’s inexperience was not sufficient to warrant the
application of a lower standard of care. In reaching its decision, the High Court overruled its earlier
decision in Cook v Cook.
The standard of care owed by an unlicensed or inexperienced driver to others (including their super-
visor) is now the same objective standard as that owed by a licensed driver.
Banning cartwheels: school litigation fears are unfounded
A few schools have hit the headlines recently for banning traditional playground activities like cart-
wheels, handstands, ball games and even high fives.
Parents are rightly objecting to the bans, and pointing to the increasingly litigious society we live in.
They say the schools are fearful of being sued, and even more fearful they might be sued successfully.
But are schools’ fears well-founded?
No lawyer could ever give a 100% guarantee of not being sued. But the perceptions that we live in an
increasingly litigious society have no foundation in reality.
Harder than you might think
For the past ten years, since tort reforms came into force, rates of litigation have dropped in all Aus-
tralian jurisdictions. Even before the reforms, litigation rates were steady rather than increasing, and had
been so for some years.
To add to the confusion the tort reform legislation — called different names in different jurisdictions —
added significantly to the difficulty of suing for personal injury.
In NSW in particular, suing schools became much more difficult especially when a recreational activity
was involved that is not compulsory — like running, jumping and doing a headstand in the playground.
Under the Act, it’s very easy to give a warning which exempts the school from liability. If this provision
doesn’t apply there are other sections which make it harder to sue.

Tour of duty
The big problem for schools has traditionally been the rule that schools owe a non-delegable duty to
their students to see that reasonable care is taken, which may (but probably does not) import a higher
standard of care. Even this has been affected in NSW and Victoria by the new rule that non-delegable
duty has to be treated like vicarious liability.
Vicarious liability arises when an employee (or other agent) does something wrong which is con-
nected to their work. In such cases the employer would have to pay their damages — that is they are
vicariously liable for their employee.
In the other jurisdictions the difficulties are not quite so great, but the tort reform process signifi-
cantly reduced the ability of plaintiffs to sue in all jurisdictions. It is worth repeating that even before
these reforms had come into play the rates of litigation were steady and success for plaintiffs had been
reduced for some time. This was because the High Court had decided that what is ‘reasonable’ should
be given greater scope.
Negligence is established when the defendant did not act like a ‘reasonable person’ in the circum-
stances. The courts have often rejected liability in cases where students have been injured in the play-
ground — recognising that it is impossible to watch every child every moment.
A watching brief
For example, in the 2005 Hadba case a child was injured when other children pulled her off the
flying fox in the playground. This occurred while the teacher on duty was facing away from the play
equipment.
There was no evidence of any particular discipline problem. The school had a ‘hands off rule’
which applied when children were using the flying fox. The accident occurred when the supervising
teacher was momentarily distracted by activities in another part of the playground — for about
30 seconds.
Two children (neither of whom had previously breached the hands off rule or [had] discipline issues)
grabbed the plaintiff by the legs and she fell, landing on her face.
The court decided that the school’s well-established rules about the use of the equipment and the
policy of supervision in the playground were sufficient. The momentary distraction of the teacher was
not sufficient to be inadequate. The court also thought that extra teachers supervising to guard against
this would be unreasonable and the school was not liable.
So for schools, it’s worth noting that if supervision is inadequate liability may ensue, but where super-
vision is adequate together with clear instructions about behaviour, or where the injury would have
occurred even with greater supervision, the school is likely not to be liable.
Perceptions vs reality
So why is there such a perception of massive litigation and such fear of risk in the school
playground?
The answer seems to be that people are not aware of the tort reforms, despite the massive media
coverage of the insurance crisis leading up to the reforms in 2002. It seems as if people heard all the
concerns of the insurance crisis being aired, but failed to notice that systems were put in place to fix the
problem (if indeed the problem existed at all).
It is ironic that even before the tort reforms the courts had reversed the trend of pro-plaintiff litigation
and defendants were winning 75% of cases of personal injury allegedly caused by negligence.
Other reasons for the perception may be that schools will not tolerate any risk of litigation — more
broadly part of our risk-averse culture.
The media, too, is likely to give prominence to any case where there is a successful suit, but won’t
report every incident where harm is suffered but there is no litigation or it is unsuccessful — skewing
perceptions further.
Risky business
The test for negligence is reasonable behaviour in the face of the foreseeable risks. This has been the
test since 1932, although a stronger emphasis on personal responsibility has existed since the late
1990s. There are risks in the playground. But a school is not regarded as negligent simply because an
activity carries risk.

The question is what a reasonable response to that risk is. When schools consider this, it is impor-
tant to consider that another foreseeable risk is that of obesity and heart disease caused by a lack of
physical activity by children when at school.
The courts recognise that children need physical activity and physical activity always carries some
risk. If it is the fear of litigation which is driving these bans, it is not based on the legal reality. As I said
earlier, no-one can be guaranteed 100% freedom from litigation, but it seems that the fear is dispropor-
tionate to the actual risk.
Source: Prue Vines, 30 August 2012, https://theconversation.com/banning-cartwheels-school-litigation-fears-are-
unfounded-9140.
A higher standard of care
If a person has held themselves out as an expert or professional they will owe a higher standard of care.
The standard of care owed by a medical specialist, for example, is not that of the reasonable ‘person in
the street’ but that of the reasonable medical specialist.15
In some situations a person will owe not just a duty to take reasonable care but a duty to ensure
that all reasonable care is taken. This higher standard of care is known as a non-delegable duty
of care. If a person owes a non-delegable duty of care they cannot avoid liability by delegating
responsibility to another person. For example, an employer owes a non-delegable duty of care to
their employees.
15 Rogers v Whitaker [1992] 175 CLR 479.

Kondis v State Transport Authority (1984) 154 CLR 672
Kondis was employed by the State Transport Authority (STA). He was injured at work when part of a
crane being operated by an independent contractor fell on him. Kondis sued the STA for negligence.
The STA argued that it was not responsible for the actions of the independent contractor. The court
decided that while the STA was not vicariously liable for the actions of the independent contractor,
it was in breach of its non-delegable duty to provide a safe place of work that it owed to all of its
employees. This duty could not be delegated to an independent contractor.
The duty of employers to provide a safe place of work is considered in more detail in a later chapter.
Other examples of non-delegable duties of care include:
• the duty owed by a hospital to its patients,16
• the duty owed by a school to its students,17 and
• the duty owed by an occupier in relation to things on their property and under their control that could
cause harm to others.18
The duty of care only extends to negligent acts by others and not to intentionally harmful acts by others.
Liability for failing to act
Generally speaking, there will be no breach of duty where physical harm or loss arises as a result of a
failure to act. According to Brennan J in Council of the Shire of Sutherland v Heyman [1985] HCA 41:
A man on the beach is not legally bound to plunge into the sea when he can foresee that a swimmer
might drown.
In the absence of a previous relationship of responsibility, there is no legal obligation to help someone
in need or come to their rescue. There may, however, be an ethical obligation.
Provide an explanation as to whether or not you have an ethical obligation to provide help in each of the
following three circumstances.
1. A fellow student has fainted in class.
2. A stranger is being threatened by three youths in a park.
3. An injured dog is lying by the side of the road.
In some circumstances, however, a person will breach their duty of care by failing to act. For example:
•• if a driver fails to apply the brake when required to do so, they will breach their duty, or
•• if there is a continuing professional relationship between the parties such as solicitor and client or
accountant and client, the professional will breach their duty if they fail to act to prevent harm from
occurring to their client.
Requirement 3: harm caused by the breach of duty
Establishing that the defendant has breached their duty of care is still not enough to make them liable for
the plaintiff’s loss or injury. It must be established that the defendant’s breach of duty caused the harm
suffered by the plaintiff. According to the civil liability legislation, in deciding that a breach of duty
caused particular harm, the court must be satisfied that:
1. the breach of duty was a necessary condition of the occurrence of the harm (factual causation),
and
16 Roe v Ministry of Health [1954] 2 QB 66.
17 Commonwealth v Introvigne (1982) 150 CLR 258.
18 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.

2. it is appropriate for the scope of the liability of the defendant to extend to the harm so caused (scope
of liability).19
These matters must be established by the plaintiff on the balance of probabilities. Factual causation is
a question of fact; scope of liability is a question of law (see figure 6.3).
Harm caused
by breach
Was the breach a
necessary condition
of the occurrence
of harm?
YES
Is it appropriate for
the scope of the
defendant’s liability to
extend to the harm?
NO
Harm was not caused
by breach.
NO
Harm was not caused
by breach.
YES
Harm was caused
by breach.
FIGURE 6.3 Requirements to establish the harm caused by a breach of duty
Factual causation
The defendant is only responsible for harm that was actually caused by their carelessness. The question
is a factual one: did the careless act cause, either directly or indirectly, the harm suffered by the plaintiff?
Sometimes the issue of causation is relatively straightforward: the carelessness is a direct cause of the
loss or injury. For example, in a case about a car accident, it would be relatively straightforward to estab-
lish that the defendant’s careless act — not paying attention while they were driving — caused their car
to collide with the car being driven by the plaintiff, which in turn caused the physical injuries suffered
by the plaintiff.
In other circumstances the causation is less direct and less clear. What if, in the above example,
the plaintiff had while recovering in hospital become addicted to painkillers? Was the harm suffered
19 Civil Law (Wrongs) Act 2002 (ACT) s 45; Civil Liability Act 2002 (NSW) s 5D; Civil Liability Act 2003 (Qld) s 11; Civil
Liability Act 1936 (SA) s 34; Civil Liability Act 2002 (Tas) s 13; Wrongs Act 1958 (Vic) s 51; Civil Liability Act 2002 (WA)
s 5C.

by the plaintiff — the addiction to painkillers — caused by the defendant’s careless driving? A test
often used by the courts is the ‘but for’ test: the court asks whether, but for the defendant’s care-
lessness, the plaintiff would have suffered the harm. If, in the absence of the defendant’s careless-
ness, the plaintiff would not have suffered the harm, then the harm was caused by the defendant’s
carelessness.
Yates v Jones [1990] Aust Torts Reports 81–009
Yates was injured in a car accident caused by Jones’s carelessness. While recovering in hospital,
a friend of Yates offered her heroin to help her to cope with the pain. She subsequently became
addicted to heroin and when she sued Jones for compensation for her injuries, she included a claim
for the cost of her heroin addiction. Was the heroin addiction caused by Jones’s carelessness? But
for Jones’s carelessness, would Yates have become addicted to heroin? The court decided that the
heroin addiction was not caused by the car accident but was rather caused by the actions of Yates’s
friend.
The ‘but for’ test will not be appropriate where the harm suffered by the plaintiff has a number of
causes. In such a situation, the court will apply the ‘material contribution’ test as explained by McHugh J
in Chappel v Hart (1998) 195 CLR 232:
Before the defendant will be held responsible for the plaintiff’s injury, the plaintiff must prove that the
defendant’s conduct materially contributed to the plaintiff suffering that injury. In the absence of a statute
or undertaking to the contrary, therefore, it would seem logical to hold a person causally liable for a
wrongful act or omission only when it increased the risk of injury to another person. If a wrongful act
or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant’s
conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also
contributed to that injury occurring. If, however, the defendant’s conduct does not increase the risk of
injury to the plaintiff, the defendant cannot be said to have materially contributed to the injury suffered
by the plaintiff.
Cook v ACT Racing Club Incorporated and the Australian Jockey Club Inc [2001] ACTSC 106
After using an overheated sauna at the Canberra racecourse, a jockey suffered a heart attack. The
dehydration associated with the use of the sauna was only one of the causes of the heart attack. The
court decided that the sauna significantly increased the risk of injury to the plaintiff and was, therefore,
a cause of the heart attack.
It is not necessary that the plaintiff establish that the defendant’s carelessness was the sole cause of
the harm. It is sufficient to show that the carelessness was a contributing cause along with other causes.
Scope of liability
The defendant is not liable for every consequence of their carelessness: the court must decide that it
is appropriate for the scope of the defendant’s liability to extend to the harm actually suffered by the
plaintiff.
A key consideration to be taken into account is whether the harm suffered by the plaintiff was rea-
sonably foreseeable. We saw earlier that to establish the existence of a duty of care, it was necessary to
show that it was reasonably foreseeable that the defendant’s conduct could cause harm to a person in the
plaintiff’s position. A similar test applies in determining the scope of the defendant’s liability, but here
the question is whether the actual loss or injury suffered by the plaintiff was a reasonably foreseeable
consequence of the defendant’s carelessness. If the harm suffered by the plaintiff was too remote or

far-fetched — in other words, it was not reasonably foreseeable — then the defendant will not be liable
for that harm. (The same limitation applies to liability for the consequences of a breach of contract.)
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No. 1)
[1961] AC 388
Morts Dock & Engineering Company (Morts) carried on the business of ship building, ship repairing and
general engineering at its wharf in Morts Bay in Sydney Harbour. Morts employees were working on a
vessel moored at the wharf using welding equipment. A vessel owned by Overseas Tankship (UK) Ltd
(OT), Wagon Mound, was moored at Caltex Wharf on the opposite shore of the harbour, approximately
600 feet from Morts Wharf, to enable the discharge of gasoline products and taking in of furnace oil.
A large quantity of furnace oil was released into the harbour as a result of the carelessness of OT’s
employees. The oil spread to Morts Wharf. When the Morts works manager became aware of the pres-
ence of the oil, he made enquiries with the manager of Caltex. The response he received led him to
believe that the work at Morts Wharf could safely continue. Hot metal from the welding at Morts Wharf
fell on cotton waste in the harbour and ignited the furnace oil. Consequently, the wharf and the vessel
upon which Morts employees were working caught fire. Considerable damage was done to the wharf
and to the equipment on it. Morts sued OT for negligence. The court decided that OT was only liable for
the consequences of its actions that were reasonably foreseeable at the time of the negligent act. OT
was not liable for unforeseeable consequences of its negligence. It decided that although OT had owed
Morts a duty of care and that duty had been breached, the damage suffered by Morts was not reason-
ably foreseeable: OT did not know and could not reasonably be expected to have known that furnace
oil was flammable when spread on water.
CAUTION!
A person who has breached their duty of care is not responsible for all of the harm caused by their
breach, only for the harm caused by their breach that was reasonably foreseeable and not too remote
or far-fetched.
Rowe v McCartney [1976] 2 NSWLR 72
Rowe agreed to permit McCartney to drive her powerful car. McCartney drove the car negligently and
crashed into a telegraph pole. Rowe was a passenger in the car at the time. McCartney was badly
injured and became a quadriplegic. Rowe suffered minor physical injuries but suffered a mental illness
as a result of feelings of guilt about allowing McCartney to drive the car. Rowe sued McCartney for com-
pensation for the costs associated with this mental illness. The court decided that although McCartney’s
breach of duty had caused the mental illness, the mental illness was not a reasonably foreseeable con-
sequence of McCartney’s careless driving.
It is only the type of harm that must be reasonably foreseeable, not the extent of the harm. If the
plaintiff suffers greater than usual harm because of a pre-existing vulnerability, the defendant will be
liable for the full extent of that harm provided the harm is of a type that is a reasonably foreseeable con-
sequence of the defendant’s carelessness. This is known as the eggshell skull rule.
ACTIVITY 6.3 — REFLECT AND APPLY
Illustrate the eggshell skull rule using your own example.

Defences
Even if the plaintiff has established all three elements of the tort of negligence, the defendant can still
avoid liability, either completely or partially, if they can establish the existence of one or more of the
following defences.
Voluntary assumption of risk
If it can be established that the plaintiff was fully aware of the risk at the time the harm was caused
and they voluntarily assumed that risk, the defendant is relieved of all liability. This is called voluntary
assumption of risk, sometimes referred to by its Latin name volenti non fit injuria.
This defence has traditionally been a difficult one to establish because it must be shown that:
•• the plaintiff had full knowledge and appreciation of the risk, and
•• the plaintiff freely and willingly agreed to the precise risk that eventuated.
Rootes v Shelton (1967) 116 CLR 383
The plaintiff was injured while waterskiing when the defendant (the driver of the boat) drove too close to
a moored boat. The defendant argued that the plaintiff had voluntarily assumed the risk of being injured
while waterskiing. The court decided that while the plaintiff was aware of the risks normally associated
with waterskiing and had assumed those risks, they had not assumed the risk of the defendant failing to
avoid or warn of obstacles in the water.
The civil liability legislation in most jurisdictions now facilitates the raising of the defence of volun-
tary assumption of risk where the plaintiff is injured doing something that is obviously risky:
If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk
is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the
risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.20
The legislation also provides:
(1) A person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to
the plaintiff.
(2) Subsection (1) does not apply if —
(a) the plaintiff has requested advice or information about the risk from the defendant; or
(b) the defendant is required by a written law to warn the plaintiff of the risk; or
(c) the defendant is a professional, other than a doctor, and the risk is a risk of the death of or
personal injury to the plaintiff from the provision of a professional service by the defendant.21
Agar v Hyde (2000) 201 CLR 552
Two rugby union players broke their necks when scrums collapsed on top of them. They commenced
civil proceedings against the International Rugby Union Board arguing that it had been negligent in
the preparation of the rules relating to scrums. The High Court decided that as the rugby players were
aware of the risks inherent in playing rugby, they had voluntarily assumed the risk of injury and the Inter-
national Rugby Union Board was not liable.
20 Civil Liability Act 2002 (NSW) ss 5F–5G; Civil Liability Act 2003 (Qld) ss 13–14; Civil Liability Act 1936 (SA) ss 36–37;
Civil Liability Act 2002 (Tas) ss 15–16; Wrongs Act 1958 (Vic) ss 53–54; Civil Liability Act 2002 (WA) ss 5M–5P.
21 Civil Liability Act 2002 (NSW) s 5H; Civil Liability Act 2003 (Qld) s 15; Civil Liability Act 1936 (SA) s 38; Civil Liability
Act 2002 (Tas) s 17; Civil Liability Act 2002 (WA) s 5O.

The civil liability legislation of some jurisdictions also states that the defendant is not liable for harm
suffered by the plaintiff as a result of the materialisation of an obvious risk of a dangerous recreational
activity engaged in by the plaintiff.22
A ‘dangerous recreational activity’ usually means an activity
engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm
to a person.
Contributory negligence
Contributory negligence is a partial defence: if it can be established that the plaintiff contributed in
some way to their own loss or injury, liability will be apportioned between the defendant and the plain-
tiff. For example, if Simon was a pedestrian injured by Johnny in his car, the court might decide that
Johnny drove negligently but that Simon was also negligent because he failed to look both ways before
crossing the road. The court would apportion liability: it might decide that Johnny was 70 per cent
responsible and Simon was 30 per cent responsible, and the compensation payable by Johnny to Simon
would be reduced by 30 per cent.
Ingram v Britten [1994] Aust Torts Reports 81–291
Ingram was employed by Britten. While driving a tractor owned by Britten at excessive speed, Ingram
lost control and hit a tree causing the tractor to roll over. No metal frame was fitted to the tractor to
protect the driver. Ingram sued Britten for compensation for the cost of his injuries. The court decided
that Britten was negligent in not fitting a metal frame to the tractor, but that Ingram was also negligent
in driving at an excessive speed. The court apportioned liability 40 per cent against Britten and 60 per
cent against Ingram.
Manley v Alexander (2005) 223 ALR 228
After consuming 12 stubbies of beer in eight hours, Alexander lay down in the road and went to sleep.
At 4.15 am, Manley drove over Alexander in his tow-truck. Alexander sued Manley in the tort of negli-
gence. The court decided that Manley had been negligent, but Alexander had also been negligent and
had contributed to his own injuries. The court decided that Alexander was 70 per cent responsible for
the accident, and that he was therefore only entitled to recover 30 per cent of his losses from Manley.
To determine whether the plaintiff has also been negligent, the standard of care is that of a reason-
able person in the plaintiff’s position — that is, the court applies the same principles as those applied in
determining the defendant’s liability.23
According to the civil liability legislation in the Australian Capital Territory, New South Wales,
Queensland and Victoria, contributory negligence on the plaintiff’s part can even result in the plaintiff
being found to be completely responsible for their own loss or injury.24
The civil liability legislation in each jurisdiction provides that if the plaintiff was intoxicated at the
time of the incident, or the plaintiff was relying on the care and skill of a person they knew to be intox-
icated, contributory negligence on the part of the plaintiff will be presumed.25
22 Civil Liability Act 2002 (NSW) ss 5K–5L; Civil Liability Act 2003 (Qld) ss 17–19; Civil Liability Act 2002 (Tas) ss 18–20;
Civil Liability Act 2002 (WA) ss 5E–5I.
23 Civil Liability Act 2002 (NSW) s 5R; Civil Liability Act 2003 (Qld) s 23; Civil Liability Act 1936 (SA) s 44; Civil Liability
Act 2002 (Tas) s 23; Wrongs Act 1958 (Vic) s 62; Civil Liability Act 2002 (WA) s 5K.
24 Civil Law (Wrongs) Act 2002 (ACT) s 47; Civil Liability Act 2002 (NSW) s 5S; Civil Liability Act 2003 (Qld) s 24; Wrongs
Act 1958 (Vic) s 63.
25 Civil Law (Wrongs) Act 2002 (ACT) ss 95–96; Civil Liability Act 2002 (NSW) s 50; Personal Injuries (Liabilities and
Damages) Act 2003 (NT) ss 14–15; Civil Liability Act 2003 (Qld) ss 47–49; Civil Liability Act 1936 (SA) ss 46–50; Civil
Liability Act 2002 (Tas) s 5; Wrongs Act 1958 (Vic) s 14G; Civil Liability Act 2002 (WA) s 5L.

Other defences and immunities
•• Barristers — barristers do not owe a duty of care in relation to work done in court or work intimately
connected with work in court.26
This immunity extends to solicitors acting as legal advocates, judges,
and witnesses giving evidence in court.
•• Volunteers — under the Commonwealth Volunteers Protection Act 2003 (Cth), a person will not incur
civil liability for anything done in good faith while carrying out work for the Commonwealth or a
Commonwealth authority if the work is done on a voluntary basis. State and Territory civil liability
legislation and volunteer protection legislation also protects a volunteer from liability for any act or
omission done in good faith while doing community work organised by a community organisation, or
as an office holder of a community organisation.27
Liability instead attaches to the community organ-
isation itself, and the plaintiff cannot sue the volunteer personally. In certain circumstances, the volun-
teer may be able to be sued personally; these circumstances vary from jurisdiction to jurisdiction, and
include circumstances where the volunteer acted outside the scope of the activities authorised by the
community organisation, or they acted contrary to instructions, or they were affected by alcohol or
drugs at the time.
•• Emergency service providers — in some jurisdictions, the civil liability legislation protects emergency
service workers and/or ‘good Samaritans’.28
If a person is working for a ‘prescribed entity’ (which
usually includes surf life savers, ambulance drivers and fire fighters) and providing first aid or other
aid or assistance to a person in distress in emergency circumstances, they are not liable for careless
acts if those acts were done in good faith and without reckless disregard for the safety of the person
in distress. Similarly, people who voluntarily provide emergency assistance to strangers — ‘good
Samaritans’ — are not liable for acts done or omissions made honestly and without recklessness in
assisting a person injured or are at risk of being injured or in need of emergency medical assistance.
The protection does not apply if the ‘good Samaritan’ was intoxicated while giving the assistance or
advice, or caused the injury or risk of injury in the first place.
•• Compliance with standard practice — can the defendant claim that they have not been careless
because they have simply done what anyone else in the same industry or profession would have done?
If the defendant is a non-professional, their compliance with custom, standard practice or a relevant
code of practice will not mean they have not been negligent, and non-compliance will not mean they
have been negligent. In other words, the court decides for itself what is careless behaviour, and just
because everybody else would have done it the same way is irrelevant.
Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580
Mercer was injured when the driver of one of the defendant’s trams collapsed at the controls and the
tram collided with another tram. Mercer argued that the defendant had breached its duty of care by
failing to install a ‘dead man’s handle’ in the tram. This is a handle that must be held by the driver for
the tram to move; if the driver lets the handle drop for any reason the tram stops moving. If there had
been a dead man’s handle in the tram the accident would not have occurred. The defendant argued
that although dead man’s handles were used on some trains in Australia, they were not used on trams
anywhere in Australia. The court decided that the defendant had nevertheless breached its duty. The
fact that it was not common practice to install the handles on trams did not change the fact that it was
a breach of duty for the defendant to fail to do so in this case.
26 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1.
27 Civil Law (Wrongs) Act 2002 (ACT) s 8; Civil Liability Act 2002 (NSW) s 61; Personal Injuries (Liabilities and Damages)
Act 2003 (NT) s 7; Civil Liability Act 2003 (Qld) s 39; Volunteers Protection Act 2001 (SA) s 4; Civil Liability Act 2002 (Tas)
s 47; Wrongs Act 1958 (Vic) s 37; Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) s 6.
28 Civil Law (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) ss 56–57; Personal Injuries (Liabilities and
Damages) Act 2003 (NT) s 8; Civil Liability Act 2003 (Qld) ss 26–27; Civil Liability Act 1936 (SA) s 74; Wrongs Act 1958
(Vic) s 31B; Civil Liability Act 2002 (WA) s 5AD.

The situation will be different if the defendant is a professional such as a lawyer, doctor or
accountant. The civil liability legislation in NSW, Queensland, South Australia, Tasmania, Victoria
and Western Australia provides that in determining the appropriate standard for a professional the
court must have regard to the opinions of the professional’s peers, and their conduct will not be a
breach of duty if widely accepted in Australia by peer professional opinion as competent pro-
fessional practice.29
•• Apology — an apology to the plaintiff by the defendant will not relieve the defendant from liability
for the consequences of their conduct. Nor is an apology an admission of fault: the defendant can
express regret in connection with a matter alleged to have been caused by them without it being
interpreted by the court as an admission of fault or liability.
Applications
In this section we consider three situations where the principles of negligence are applied to resolve legal
disputes:
1. occupier’s liability,
2. the liability of public authorities, and
3. bailment.
Occupier’s liability
An ‘occupier’ of premises is the person who has possession and control of those premises. For example,
since Johnny runs his business from a restaurant, Johnny is the occupier of the restaurant. He is also the
occupier of his own home. An occupier of premises owes a duty of care to all persons entering the prem-
ises to ensure that the premises are safe.
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
While shopping at a Safeway supermarket on a rainy day, Zaluzna slipped on the wet floor near the
entrance and was injured. The court decided that Safeway was liable to compensate Zaluzna for her
injuries in accordance with the basic principles of negligence. Safeway as occupier of the premises
owed Zaluzna a duty of care, and they had breached that duty of care by failing to take reasonable
precautions to avoid such harm.
The notion of occupier’s liability does not mean that the occupier is automatically liable for any
injury sustained by a visitor to their premises. It must be established that the occupier has in fact been
careless.
Phillips v Daly (1988) 15 NSWLR 65
The plaintiff parked her car in a hotel car park that was separated from the hotel by horizontal logs
painted white and approximately 40 cm high. Instead of walking around the logs, the plaintiff climbed
over them, tripped and fell. She sued the owners of the hotel for negligence, relying upon the principles
of occupier’s liability. The court decided that the defendants had not breached their duty of care. It was
daylight, the risk was obvious, and the plaintiff should have walked around the logs rather than stepping
over them.
29 Civil Liability Act 2002 (NSW) s 5O; Civil Liability Act 2003 (Qld) s 22; Civil Liability Act 1936 (SA) s 41; Civil Liability
Act 2002 (Tas) s 22; Wrongs Act 1958 (Vic) s 59; Civil Liability Act 2002 (WA) s 5PB.

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Modbury Triangle Shopping Centre Pty Ltd (Modbury) owned the Modbury Triangle Shopping Centre in
Adelaide. Anzil was a manager of a video rental shop in the shopping centre. At about 10.30 pm, after
closing the video shop, Anzil was walking to his car in the car park of the shopping centre when he was
attacked by three assailants. He sustained serious injuries. The car park was not lit at the time of the
incident as the car park lights were turned off at about 10 pm. Anzil sued Modbury for damages alleging
negligence on the part of Modbury as the occupier of the land. The court decided that Modbury was not
liable for Anzil’s injuries. As an occupier Modbury owed Anzil a duty of care, but the duty did not extend
to taking reasonable steps to prevent criminal conduct by third parties that would cause physical injury
to Anzil in circumstances where Modbury was unable to control the conduct of the assailants. Further,
Modbury’s failure to leave the car park lit facilitated the crime, in a similar way to its provision of the
car park and Anzil’s decision to park there, but it was not the cause of Anzil’s injuries. The direct and
immediate cause of the injuries was the conduct of the three attackers who were acting independently
of Modbury.
The standard of care owed by the occupier of commercial premises will generally be higher than the
standard of care owed by the occupier of residential premises.30
Refer to ‘Johnny and Ash’ at the beginning of this chapter. Is Johnny liable as an occupier for the inju-
ries suffered by the old woman who slipped over in the spilled drink?
Does an occupier also owe a duty of care to people who are on their premises without their per-
mission? For example, will Johnny be liable to someone who is injured in his restaurant while tres-
passing there after the restaurant has closed?
Hackshaw v Shaw (1984) 155 CLR 614
A farmer suspected that someone was stealing petrol from the bowser on his farm. One night he caught
a man stealing his petrol, and shot at the tyres of the man’s vehicle to prevent him from leaving. Unfor-
tunately he hit the passenger door of the vehicle, injuring the plaintiff who was crouching on the front
seat. She sued the farmer for compensation for her injuries. The court decided that even though the
thief and the plaintiff were trespassing at the time the farmer still owed them a duty of care, and that he
had breached that duty of care by firing his gun at the car in the dark.
Do you agree with the decision of the court in Hackshaw v Shaw? Why or why not?
The civil liability legislation in some jurisdictions now provides that if the plaintiff was injured while in
the process of committing an indictable offence the defendant will not be liable.31
However, in situations
where the exclusion of liability would be harsh or unjust, the court has the discretion to award damages.
Note that while burglary is an indictable offence, trespassing is not.
30 Neindorf v Junkovic (2005) 222 ALR 631.
31 Civil Liability Act 2002 (NSW) s 54; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 10; Civil Liability
Act 2003 (Qld) s 45; Civil Liability Act 1936 (SA) s 43; Civil Liability Act 2002 (Tas) s 6.

Liability of public authorities
What if the plaintiff is injured in a public place? Just as the occupier of a building owes a duty of care
to entrants to the building, a public authority owes a duty of care to people who visit areas under the
control of the authority.
Where the danger is unnatural or hidden, a public authority will owe a duty of care to warn of foresee-
able risks to persons using the area as intended by the public authority.
Nagle v Rottnest Island Authority (1993) 177 CLR 423
The Rottnest Island Authority (RIA) managed and controlled a particular swimming area on the island. Nagle
was injured when he dived into the water from a rock ledge and collided with some submerged rocks. The
court decided that the RIA was liable to compensate Nagle for his injuries. As ‘occupier’ of the swimming
area the RIA owed swimmers a duty of care, and it had breached that duty because it had encouraged
people to swim in the area, but failed to warn swimmers of the dangers of diving from the rock ledge.
On the other hand, where the danger is obvious, the public authority is entitled to assume that most
people will take reasonable care for their own safety.
Romeo v Conservation Commission of Northern Territory (1998) 192 CLR 431
Romeo, a 15 year old girl, was drinking with her friends near a car park at the top of cliffs near a beach.
At the edge of the cliff was low post-and-log fencing. At about midnight, Romeo walked to the edge
of the cliff and fell 6.5 metres to the beach below, suffering serious injuries including paraplegia. She
sued the Conservation Commission of Northern Territory (CCNT), the public authority responsible for
the area, for compensation. The court decided that an occupier is entitled to assume that entrants will
take reasonable care for their own safety, and that the CCNT was not liable for injuries sustained by ‘an
inattentive young woman who was under the influence of alcohol’.
The difficulty for many local authorities is that they often lack the funding and resources to address
every possible problem within the (often large) geographical area under their control. Courts have some-
times been unsympathetic to such commercial realities. For example, in Brodie v Singleton Shire Council
(2001) 206 CLR 512 the High Court decided that government bodies responsible for roads, regardless
of budget constraints, have a duty of care to take reasonable steps within a reasonable period of time
to remedy foreseeable risks to road users and to discover hidden risks they reasonably suspect to exist.
The civil liability legislation in the Australian Capital Territory, New South Wales, Queensland,
Tasmania, Victoria and Western Australia now limits the liability of public authorities.32
The court must
take into account the following principles when deciding whether or not a public or other authority has
a duty or has breached a duty.
•• The functions required to be exercised by the authority are limited by the financial and other resources
that are reasonably available to the authority for the purpose of exercising the functions.
•• The general allocation of financial or other resources by the authority is not open to challenge.
•• The functions required to be exercised by the authority are to be decided by reference to the broad
range of its activities (not merely by reference to the matter to which the proceeding relates).
•• The authority may rely on evidence of its compliance with its general procedures and any applicable
standards for the exercise of its functions as evidence of the proper exercise of its functions in the
matter to which the proceeding relates.
32 Civil Law (Wrongs) Act 2002 (ACT) ss 110–114; Civil Liability Act 2002 (NSW) ss 42–45; Civil Liability Act 2003 (Qld)
ss 35–37; Civil Liability Act 2002 (Tas) ss 38–40; Wrongs Act 1958 (Vic) ss 83–85; Civil Liability Act 2002 (WA) ss 5W–5Z.

The legislation also provides that there is no duty of an authority to do or not to do a particular thing
unless the act or omission of the authority was so unreasonable that no public authority with the same
functions could properly consider the act or omission to be a reasonable exercise of its functions.
Bailment
A bailment arises when one person is in temporary possession of property belonging to another person.
Bailments are very common. Examples of bailments include:
•• leaving clothes with a dry cleaner,
•• leaving a car at a garage for repairs,
•• borrowing a neighbour’s lawnmower, and
•• finding lost keys belonging to another.
The person in possession of the goods (the bailee) owes a duty of care to the owner of the goods (the
bailor) to take reasonable care of the goods. If the bailee fails to take reasonable care of the goods, they
will be liable for loss or damage to the goods.
The actual standard of care owed by the bailee depends upon whether the bailment is gratuitous (free)
or for payment, the bailee’s expertise, the nature of the goods, and whether the bailment is for the benefit
of one party or both.
When have you been (a) a bailor and (b) a bailee? Provide three examples for each situation.
REVISION QUESTIONS
Before proceeding, ensure that you can answer each of the following questions.
6.1 What is negligence?
6.2 What are the sources of negligence law?
6.3 What was the ‘insurance crisis’ and what effect did it have upon the law of negligence?
6.4 What must a plaintiff establish to bring an action in negligence?
6.5 When does one person owe another a duty of care?
6.6 What is the ‘reasonable foreseeability’ requirement? Explain using examples.
6.7 What is the ‘salient features of the case’ requirement? Explain using examples.
6.8 How does the court identify a breach of duty?
6.9 In determining whether or not there has been a breach of duty, of what relevance is (a) the
probability that harm would occur; (b) the likely seriousness of the harm; (c) the burden of taking
precautions; and (d) the social utility of the defendant’s conduct? Explain each answer by using
examples.
6.10 In what circumstances will a defendant owe (a) a lower standard of care, and (b) a higher
standard of care?
6.11 What is a non-delegable duty of care?
6.12 When will a person be liable for failing to act?
6.13 Is a person liable for all harm caused by their carelessness? Explain your answer.
6.14 When will harm be ‘caused’ by a breach of duty?
6.15 What is the ‘but for’ test of causation and how does it differ from the ‘material contribution’ test?
6.16 When will harm be ‘reasonably foreseeable’?
6.17 What is the defence of voluntary assumption of risk and why is it relatively difficult to establish?
6.18 What is the defence of contributory negligence and why is it described as only a partial defence?
6.19 What is the impact upon a negligent defendant’s liability if (a) the defendant was a volunteer
doing community work; (b) the defendant was enhancing public safety; (c) the defendant was

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