Chapter 4 Answer Guides JN

Exercise 4.1 – Barney breaks his hip belly dancing with Rachel
Does Rachel (R) owe Barney a duty of care? Proving a duty of care (DOC) is the first requirement in an action for
negligence. The onus of proof is on the plaintiff, B.

If the relationship between the D and the P falls into one of the relationships the courts have already recognised as being a
relationship where the D owes the P a DOC then this step will be much easier for the P. Examples of recognised
relationships where there is a DOC include doctor/patient, occupier of premises/entrant onto premises.

What is the relationship between R and D? Entertainer and audience member? I don’t think this is a recognised category :)

If the relationship is not a recognised one then B will have to establish that R owed him a DOC based on the general
principles of DOC in negligence. Two key elements: reasonable foreseeability of harm, and, salient/relevant facts of the
case are consistent with imposing a DOC on R.

First – was it reasonably foreseeable that R’s actions and encouraging dancing would cause harm to B, an audience
member who participated in the dancing? What do you think? I am not sure that it is reasonably foreseeable that dancing
causes physical injury. Or would you argue that it is foreseeable that belly dancing might cause someone an injury? See
Woods v Multi-Sport Holdings.

Second – consider the salient/relevant features/facts of the case, and whether those are consistent with imposing a DOC on
R. Consider:
 R is not exposed to indeterminate liability (liability is determinable b/c it is only for patrons R asks to belly dance)
(consistent with R owing a DOC)
 R has control over the situation, including who she invites to belly dance (consistent with R owing a DOC)
 Relative knowledge of R and D re belly dancing and its risks (consistent with R owing a DOC, but seems D is not
disadvantaged by lack of knowledge as it is not really an area where people rely on technical expertise)
 Type of harm – physical (consistent with R owing a DOC)
 The need for people to take personal responsibility (where they can) and any vulnerability of the plaintiff. Belly
dancing is a purely recreational, voluntary activity and B should be able to assess and decide for himself.
(inconsistent with R owing a DOC)

Weigh up these considerations and form an overall conclusion as to whether you think R owes B a DOC. Finely balanced!

In real life, B will probably want to sue Johnny (J) because J likely has more $$ than R, or at least public liability insurance
for the restaurant. B could sue J under vicarious liability.

Exercise 4.4 – Dan and the thorny durian fruit – DOC and standard of care/breach
Dan (D) is training as a chef under Johnny (J). Left on his own, D leaves the thorns on the durian and causes injury to the
diners. Does D owe the diners a DOC? Can D argue that he owes a lower standard of care because he is just a trainee
chef?? As above, the diners would probably sue J using vicarious liability, but we are not focusing on that in this question.

DOC – reasonable foreseeability of harm and salient features. I don’t have any doubt D owes diners a DOC. As an aside,
consider how the Donoghue v Stevenson test applies here – manufacturer makes a product in a form for person to
consumer owes a DOC to consumer where they cannot inspect and check the safety (thorns hidden in the pie). Perfect fit to
Dan.

Once we say D owed the diners a DOC, we then move on to consider whether D breached his DOC.

How careful should D have been? As careful as a reasonable person in the circumstances. What would a reasonable person
have done when using durian in food in a restaurant? Consider the foreseeability of harm (thorns in throat – pretty likely to
cause harm), risk (pretty likely to occur), and a reasonable person would have removed the thorns. We can also consider
the additional factors set out in legislation (picked up from previous cases): probability of harm (very probable if thorns not
removed), seriousness of harm (thorns in throat sounds serious to me), burden of taking precautions (no burden because
easy to remove thorns), and any special social utility provided by D (a commercial restaurant, not a special socially valuable
service).

Did D do what a reasonable person would do? No. Breach.

Will the court hold D to a lower standard of care given he is a trainee? Given the above factors, I don’t think so. Particularly
relevant factors are the risk of serious physical harm, and the ease of avoiding the harm. See Imbree v McNeilly.

Exercise 4.8 – Ash goes weightlifting

Ash suffers an injury when she drops weights on her foot. Can she sue the gym for failing to warn her of the risks (omitting
to warn, what the gym didn’t do but should have done rather than what the gym did do). Can the gym raise the defence of
voluntary assumption of risk by Ash?

Using weight lifting equipment does carry the risk of injury. A person could strain a muscle, twist a joint, or injure themselves
on a machine or a weight. Given this risk, and the information/experience disparity between the gym and patrons, the gym
probably owes a DOC to at least warn patrons of the dangers and need to be careful (duty to warn of risks). Possibly to
provide some training or safety instructions also.

The gym has in place a free one hour training session. The gym may intend to warn patrons during the session. Ash
chooses not to attend a session. In this case the gym probably needs to do a bit more. The gym could make the training
compulsory. Or it could give the warning and safety information in some other way, such as brochures, instructions etc.
There is no evidence the gym did this, so likely the gym is in breach for not warning Ash of the risks.

Can the gym use the defence of voluntary assumption of the risk of I jury by Ash?

The gym would have to prove that Ash fully understood the risks, and, knowing the risks voluntarily (freely) accepted those
risks, and that the risks voluntarily accepted were in fact the risks that happened.

I think the gym will fail to prove that Ash understood the risks, and so fail to establish the defence. That is why many gyms
get you to sign a membership application form that says you know how dangerous going to the gym is ……

Exercise 4.9 – Marshall, the burglar who slipped – Johnny’s liability as occupier.
We are asked about Marshall’s (M) prospects of success in a negligence action against Johnny (J). We will need to consider
whether J owes M a DOC, and, whether J breached any DOC, and whether J has any defences to M’s claim.

What about the fact that M is a burglar? That is factored in at the defence stage.

DOC – J is the occupant of the premises, and M is the entrant. This is a classic case of the relationship of occupier and
entrant and J owes a DOC to entrants as the occupier.

The DOC requires J as occupier to take reasonable care to make the premises reasonable safe in the circumstances.

 the risk of someone tripping over the bucket and mop and injuring themselves was
foreseeable,
 the risk was not insignificant – note it was risk of physical injury which is typically
regarded as something serious and
 the circumstances – it would be easy to deal with the risk (put the bucket and mop away
safely) which is what a reasonable person would have done to deal with the risk.

J is in breach of his DOC as an occupier. Even though the waiter left the bucket out, J is the occupier, and he should have
systems in place that keep the premises reasonably safe for entrants.

2
Does J have any defence? This is where we consider M’s conduct as a burglar. M is committing a crime and this effects how
he is treated by the law. This is a contentious question and there is no absolute answer. Some of the considerations will
involve the nature and moral culpability of the crime, and, the nature of the breach of DOC and the risk of harm. See
Hackshaw v Shaw. The common law cases considered whether the entrant was invited, or illegal in their entry. The question
has now been addressed by legislation in some states (NSW, NT, Qld, SA, Tas).

If the legislation applies, then J may have a defence. This depends on whether M is committing an indictable offense (an
offence punishable by 2 or more years imprisonment). But note the legislation still gives the court discretion if the defence
would result in an unjust result for M.

Exercise 4.10 – Johnny gives advice to Arnold about buying a restaurant

Making statements that cause loss to another party raises liability for negligent misstatement.
Sometimes the loss may be a physical injury. It is a big issue for accountants and advisers
because people who rely on the advice can lose money – negligent misstatement causing pure
economic loss. Bear in mind the court is more likely to find a DOC where there is a risk of
physical injury as opposed to purely $$$ loss.

Note the important facts about the relationship between the speaker, Johnny (J), and the
receivers, Arnold (A) and Cameron (C). J speaks directly to A, but has n o contact with and
seems to be unaware that C is joining A in the venture.

So, does J owe a DOC to A? And to C?

The general principle, based on the Mutual Life v Evatt case, is that a person owes a DOC in
respect of statements (advice, opinions, conclusions etc) if:
 the subject matter of the statement is of a business or a serious nature (definitely includes
anything about $$ and property),
Investing in a restaurant, $$, definitely a serious matter.
 the speaker knows or should know that the other person intends to rely on the statement
(accountants definitely know their clients are going to rely on their advice), and
J definitely knows A is relying on him because they have direct discussions.
J seems to be unaware of C, so J will not owe a DOC to C. See Esanda v Peat Marwick.
 it is reasonable in the circumstances for the person to rely on the statement (consider who
the speaker is, e.g. council tells developer what the land zoning is (L Shaddock v
Parramatta City Council), accountant tells client what the tax position is, stock broker
recommends shares to buy etc etc).
J is not a professional adviser, however, he is an experienced restaurateur so that is
some reason to say that A might want to listen to what J has to say. But is it reasonable
for A to be able to say he can rely on what J says and base his decision on whether to buy
this restaurant and what the profitability will be? I think that is not reasonable.

J will not have liability to C, and is unlikely to have liability to A.