Professional Documents
Culture Documents
Has (Defendant) Breached His Duty of Care To (Plaintiff) ? Identify Risk?
Has (Defendant) Breached His Duty of Care To (Plaintiff) ? Identify Risk?
Has (Defendant) Breached His Duty of Care To (Plaintiff) ? Identify Risk?
negligence?
Has [defendant] breached his duty of care to [plaintiff]? Identify risk?
Whether [defendant] has breached its duty to [plaintiff] requires an assessment of
the standard of care owed to [plaintiff] in appreciating the risk. In particular it
entails questions of who is the reasonable person in this context. [defendant]
would not have failed to take precautions unless, in the circumstances, a
reasonable person in [defendant]s position would have (CLA s 5B). Here a
reasonable person in [defendant]s position should have taken precautions to
[insert precaution here].
The standard of care required by a reasonable person is applied objectively with no
allowance for the defendants individual idiosyncrasies.
Mentally ill
Thus as [defendant]s [mental illness/disability] is a personal
& disability
idiosyncrasy, it will not attract any special provisions or
exemption from the ordinary standard of care other than that of a
reasonable person. (Carrier)
Children
However as childhood is not a personal idiosyncrasy, in the
special circumstance of children this standard is lowered.
[defendant] is not assessed against a reasonable adult but
against a reasonable child of the same age and experience.
(McHale)
Learners/no Upon recent decisions in overturning Cook v Cook, the HCA
vices
decided inexperience is a personal idiosyncrasy of the defendant.
There will be no special provisions made for novices other than
the standard of care of a reasonable [actor doing activity].
(Imbree)
House
No special provisions are made for house owners. (Neindorf)
owners
Professional In common law, the standard of care is raised for [insert
s/professing defendant profession eg:doctor] as they fall under the category of
to having
professional negligence (Rogers). However, CLA s 5O modifies the
that special common law by reinstating the Bolam principle, inviting the
skill
opinions of peer professionals unless their opinions are irrational
or contrary to written law. That is a professional does not incur
liability if it is established that the professional acted in a manner
at the time was widely accepted in Australia by peer professional
opinion as competent professional practice (CLA s 5O). Thereby,
as the experts opinion is of a responsible, reasonable and
respectable body it does not necessarily raise the standard of
care as they would testify that it is normal for [defendants
profession] to not [insert the possible breach].
(note: this only applies for treatment and diagnosis not for
warning or advice CLA s 5P)
Duty to
The Bolam principle does not apply to ... the giving of (or the
warn:
Material
Risks
Actual
knowledge
of special
susceptibilit
y
Novus
no
1) [3rd party]s act was not voluntary in the sense that it was not of
the [3rd party]s free choice (Haber). OR merely a coincidence and
Novus
yes
But
Chain
unbroken
Factual
analogy
Remoteness of damage
Causation analysis secondly depends on remoteness. Remoteness acts as a limit
on causation in questioning whether it is appropriate for the scope of
[defendants] liability to extend to [plaintiffs injury] (CLA S 5D(1)(b)). Furthermore,
the courts consider whether or not and why responsibility for the harm should be
imposed on [defendant] (CLA s 5D). This is assessed by the reasonable
foreseeability of damage (Wagon 1) of a reasonable person (Wagon 2). It is not
necessary to foresee the exact nature of the damage which in this immediate case
is [insert the particular damage]. It is sufficient that this kind of damage such as
[insert the kind of damage] to [plaintiff] would have been reasonably foreseeable
to [defendant] regardless of its manner or extent (Hughes). Thus one can conclude
that [defendant] did/did not cause [plaintiffs damage].
Eggshell skull rule
Although the exacerbation of [plaintiff]s injury, due to his inherent susceptibility
of [disease], could not be reasonably foreseeable. As long as the kind of injury
could be reasonably foreseen, we will apply the Eggshell Skull rule. As
established above, [plaintiff]s kind of injury was foreseeable and we must take
him as he is. Therefore [defendant] would be liable for any additional damage of
a foreseeable kind suffered by [plaintiff] with the special vulnerability.
(Stephenson).
includes the environmental factors impinging upon the victim, including beliefs
and reactions as well as his capacities; attributes, physical, social and economic.
(Nader
includes cultural settings, and psychiatric damage (Kavanagh Akhtar)
CONCURRENT LIABILITY
Vicarious liability
Vicarious liability is a form of concurrent liability where an otherwise blameless
defendant would be liable for third partys negligence. Whether vicarious liability
exists, such that [plaintiff] can recover damages from [employer] for the
[employee]s negligent act [of insert act] is firstly contingent on whether
[employee] was actually an employee. This is determined by the enterprise risk
test where one looks not only at control (Stevens) but by examining totality of
the relationship. (Vabu).
-
Balancing out these factors one may conclude that [employee] was/not an employee and
thus/not an independent contractor.
However if I am wrong and the court finds otherwise, one would look at the second
element.
Secondly, [employer] would only be liable where the [defendants] wrongdoing was
in the course and scope of employment. (Lepore) This is satisfied/not satisfied as
[insert reasoning]. However, the negligence method in which [plaintiff] undertook
[insert job] does not exclude [company] from liability. Thirdly, the victim [insert
name] was injured by the employees wrongful act.
Type v.l?
Un/authorised
Employees
intentional
wrongdoing no
Crim. Conduct
during employment
no
Conduct outside
employment: on a
frolic of their ownno
type
employees intentional
wrongdoing
crim. conduct during
employment
conduct outside
employment: on a frolic of
their own
exercising independent
discretion
exercising statutory
authority
negligent performance of
employment, even if in
breach of workplace rules
But an employer is NOT responsible if the unauthorized and wrongful act is not
so connected with the authorized act as to be a mode/method of doing it,
but is an independent act.
(Deatons)
As [Defendants] conduct was a criminal conduct,
[company] would not be vicariously liable. (Lepore)
[Defendants] conduct was not within the scope of his/her
employment as [reasoning] and was on a frolic of his/her
own. (Deatons) Therefore, [company] would not be
vicariously liable for [defendnts] wrongdoings.
vicar. liab?
no (Deatons)
yes (Lepore)
no (Lepore)
no (Bugge)
no (Oceanic)
no (Cubillo)
yes (Rose)
1) Passion and resentment: where an employee carried out the actions through
emotions which was not within the scope of employment. (Deatons v Flew
(1949)). (Barmaid.)
(2) Where the conduct was an unconnected act from the employment
(Joel v Morison (1834)) (Employee visited a friend when delivering something.)
(3) Beyond scope of duty (Illkiw v Samuels [1963]) (bus conductor.)However,
it is important to note that if in the employee had to take breaks as a result of
completing the task inherent in their employment, then the employee is not
considered as being on a frolic of his own. (Harvey v R G O'Dell [1958]).
It is also to be noted that the CLA s 5Q states that breach of a non-delegable duty
is determined as if it were vicariously liability. One must note that if [companys]
civil liability for a tort is limited or excluded, then its vicarious liability for
[employee] is also limited. (CLA s 3C) Thus, one can tentatively conclude that
[company] was/was not vicariously liable for the [employees] wrongful act.
[plaintiff] can/cannot recover damages for this as well.
Non-delegable duty
At common law non-delegable duty is a form of vicarious liability whereby one
person is held liable for the wrongdoing of another. The duty is non-delegable in
the sense that the defendant is obliged to ensure that the task is done carefully,
and if the contractor fails to exercise reasonable care then the defendant will be
liable for a breach of his non-delegable duty of care (Hughes). A non-delegable
duty arises because [plaintiff] and [defendant] enters a special relationship
whereby the [plaintiff] is vulnerable to the control exerted by [defendant]. (Kondis)
is it within course of employment? (CLA s5Q) determine using factors:
i) central element of control as to the safety/property of others (Burnie)
ii) vulnerability if precautions arent taken (Burnie)
iii) special dependence on def to take reasonable precautions (Burnie)
DEFENCES
The onus falls on the defendant to plead and establish defences in order to prevent
liability from arising or reduces [plaintiffs] entitlement to damages. The onus falls
on the defendant to plead and establish defences on balance of probabilities.
Contributory negligence
Contributory negligence involves a failure by [plaintiff] to take reasonable care for
his/her own safety that contributes to his/her damage. The principles and
standards applicable in a claim of contributory negligence are the same as those
applied to determine the negligence of the defendant. (CLA s 5R(1))
Normal
Intoxicate
d cases
The extent of [plaintiffs] failure to take reasonable care for his/her own
safety is objectively determined by the degree of departure from the
standard of care of a reasonable person in the position of the plaintiff
(CLA s 5R(2)(a)). The issue is to be determined in the light of what
[plaintiff] knew or ought to have known. (CLA s 5R(2)(b)). In the
present case, the courts would consider whether a reasonable person in
the position of [plaintiff] would [do whatever e.g. not wear a life jacket]
knowing that [it was dangerous for him e.g. knowing that he could not
swim]. Considering the facts, the question would be answered in the
negative/affirmative and contributory negligence would/would not
become a partial defence.
[Plaintiff] was intoxicated as he was under the influence of alcohol/drug
(whether or not for medical purposes or lawfully undertaken) (CLA s
48). Contrary to common law, the CLA provides that the fact that
[plaintiff] was intoxicated does not increase nor effect the standard of
cared owed by [defendant] (CLA s 49). Therefore [the fact that
defendant eg: knowledge or supplied the drugs] would be irrelevant
and there would be no special standard of care owed. In light of
[plaintiffs] intoxication, the CLA provides that there would be no
damages awarded unless [plaintiff] can prove objectively that the
intoxication did not in fact contribute in anyway to the injury (s 50(2)).
In the present case this is un/likely that a reasonable sober person in
the position of the plaintiff would have done [add act eg:jump in pool]
and have contributed to his injury. However (if the court finds
otherwise) [plaintiff] would be still be presumed to be at least 25%
contributory negligent (CLA s 50(3)) unless it is proven that the
intoxication did not contribute at all to the injury.
(note: s 50 would not apply if the intoxication was not self induced.
(CLA s 50(4))
no CN for:
agony of the moment
despite Ps conduct = departure from
s.o.reasonable.c.
Caterson (train)
Law RECOGNIZE THIS when looking it
after it, you are faced in the sudden
emergency, and no time to think of
failing to
anticipate neg.
of others
workplace
Grant
MVs
employer provides
unsafe system of work
Wiegold
Bankstown Foundry
Czatyrko
Upson
[plaintiff] has requested for advice or information about the risk from
[defendant] (CLA s 5H(2)(a))
the defendant is required by written law to warn [plaintiff] (CLA s 5H(2)(b))
Inherent risk
Dangerous
recreational
activity
GOOD SAMARITANS
[Defendant] is defined to be a Good Samaritan as he/she, in good faith and without
expectation of a reward, came to the assistance of [plaintiff] apparently injured/at
risk of being injured of [insert from case]. (CLA s 56) Although [Defendant] was
negligent in [doing whatever] and caused [plaintiff] harm, [defendant] would not
be liable in respect anything done in an emergency. (CLA s 57(1)) Therefore,
[defendant] can raise this defence and exclude his/her liability.
(Exceptions)
Defendant
caused the
injury
Care or skill
impaired by
alcohol or
drugs
Impersonat
ed a health
care or
emergency
worker
DAMAGES
Before the analysis of damages, it is important to note that there are several types
of damages including compensatory, exemplary punitive and aggravated.
However, CLA s 21 precludes the awards of damages for all of these except for the
first category, compensatory. The basic principles behind [plaintiffs] damages are
as follows (Todorovic):
1. restitutio in integrum, the final amount is that of which puts him/her back
into his/her pre-injury state
2. the damages are in the form of a lump sum, once and for all
3. [Plaintiff] can do anything he/she wants with the money
4. [plaintiff] has the onus of proving his/her injury
To clarify and to avoid double compensation, it is easier to categorise [plaintiffs]
damages into relevant heads of loss. (Teubner)
Category A economic loss (special)
1. [plaintiff] has suffered past and future loss of earning capacity.
i. The living and maintenance expenses for the period would have to be
deducted including the ones for his/her lost years. (Sharman)
ii.
If he/she had a child, childcare expenses would not be required to be
deducted (Wynn)
iii.
After considering the above points i. and ii. The loss of earning capacity
equals the annual wages up to the time of trial minus any present
earning capacity [insert ps profession] or qualified by his remaining
working years including his lost years (Wynn)
iv.
The final amount is limited at three times the NSW average weekly
earnings currently at $220000 even though he was a [insert
profession]
2. Then however this lost of earning capacity must be adjusted by the
percentage possibility that the events might have occurred but for the injury
i.e. the vicissitudes of life (CLA S 13(2)) which normally is 15%. This
adjustment should reflect a balance of positive vicissitudes such as
promotions, pay rises, further education opportunities against negative ones
such as industrial disputes, sickness, unemployment and accidents. This
would probably be no more than 15% since [reasoning e.g he is already a
senior manager and would not experience that many more promotions].
3. On top of this amount, add past expenses eg medical expenses [insert
expense in question], which are determined on the balance of probabilities
whether an event has occurred or is required. For future expense, however,
courts must make an estimate on the chances a particular event [insert from
case and reasoning] would happen and adjusts its award of damages to
reflect the degree of probability. (Malec) Additionally, [plaintiff] has a duty to
take reasonable steps to mitigate his/her loss. (Sharman)
4. Then one must question if there was a gratuitous carer. In this case his
[carer] would constitute one since she was reasonably needed solely
because of [plaintiff]s injuries [quote: otherwise should would have received the promotion she
was aiming] (CLA S 15). However, there are no damages for this if either it was
less than six hours or less than six months. (CLA S 15(3)(b)). Judge Gibbs in
Griffiths outlined three rules regarding gratuitous carers.
i. Damages are awarded to the victim of the accident
ii.
The value of the services must be the market cost not the lost of
earnings of the service provider. (therefore, the fact that the [partner]
earns [$] is not relevant)
iii.
The principle applies where there is no obligation to remunerate the
carer
5. This final amount would be adjusted for the discount by 5% for present
value. (CLA s 14(2)(b))
Category B non-economic loss (general)
1. The CLA s 16(3) provides for a whole-person impairment threshold where the
maximum of $535000 for the most extreme case (CLA S 16(2)) and no
damages unless you have at least 15% of the most extreme cases (CLA S
16(3)). Courts would determine the severity to [plaintiffs] non-economic
loss as a percentage of the most extreme case. Applying this percentage to
the table on s 16, the courts can determine the proportion of the maximum
amount payable to [plaintiff]. Damages here would not be for the most
extreme cases as [plaintiff] is not at a level of say a quadriplegic.
(Southgate)
2. Pain and suffering would be defined as a subjective sensation of distress
and would give rise to damages as [reasoning eg. He is recently at risk of
depression]
3. Comparing his lifestyle before he [reasoning] compared to now, [plaintiff]
clearly had suffered a loss of amenities.
4. Finally, [plaintiff] would also receive damages for loss of expectation of life.
This is however limited at $2000. (Sharman)
If necessary, mention remoteness and any defences that change the damages.
e.g. contributory negligence
in so far as [plaintiff] was found to be contributory negligent for [insert from case],
the overall damages would be apportioned between him/her and whoever is liable.
If necessary, mention remoteness and any defences that change the damages.
e.g. contributory negligence
in so far as [plaintiff] was found to be contributory negligent for [insert from case],
the overall damages would be apportioned between him/her and whoever is liable.