TORTS

Lecture 6

Breach of Duty
Clary Castrission
clary@40k.com.au

Wrapping up Breach of Duty

Standard of Care
What standard of care is owed? (Q of law)
Standard of care owed by the reasonable person in the
circumstances
What would the reasonable person do in the Ds position

Duty breached
Did the Ds actions fail to meet that standard?
Was risk of injury to the P Reasonably foreseeable?
Degree of risk
Magnitude of harm

IF SO
Was the response of the d to this reasonable?
Calculus of negligence (from s5B) AND where relevant,
consider
Reasonability of precautions
Social utility
Any relevant professional or statutory standards

Breach of Duty from Shirt

If reasonable person in defendants position would have
foreseen risk to the P, then:
... it is then for the tribunal of fact to determine what a
reasonable man would do by way of response to the risk.
The perception of the reasonable mans response calls for
a consideration of the magnitude of the risk and the
degree of the probability of its occurrence, along with the
expense, difficulty and inconvenience of taking alleviating
action and any other conflicting responsibilities which the
defendant may have. It is only when these matters are
balanced out that the tribunal of fact can confidently
assert what is the standard of response to be ascribed to
the reasonable man placed in the defendants position.
Applied in Roads and Traffic Authority of NSW v
Refrigerated Roadways Pty Limited [2009] NSWCA
263 (22 September 2009)

 RTA v Dederer, Gummow J at [69]:

What Shirt requires is a contextual
and balanced assessment of the
reasonable response to a foreseeable
risk.

Comparing DUTY to BREACH

Mason J in Wyong v Shirt at 47-48
Wagon Mound (No. 2) per Lord Reid
A reasonable man would only neglect
such a risk if he had some valid reason
for doing so, eg, that it would involve
considerable expense to eliminate the
risk. He would weigh the risk against the
difficulty of eliminating it ...

Test for breach

1. Was the risk of injury to P reasonably
foreseeable? DUTY
2. If so, was the response of the
defendant to this risk reasonable?
BREACH
Did the D meet the requisite standard of
care?

IF NOT, there has been a breach of duty

Start with consideration of

the risk
1. Degree of foreseeable risk
RTA v Dederer (2007) 238 ALR 761
It is only through the correct identification
of the risk that one can assess what a
reasonable response to that risk would be
(Gummow J at [59])

2. Reasonableness of Defendants
response to the risk

Reasonable Person
What would the reasonable
person, in the defendants
position (with the knowledge that
they either had or ought to have
had) have done in the
circumstances out of which the
harm arose?

Was risk reasonably

foreseeable?
(s5B(1)(a))

Romeo v Conservation Commission

(NT) (1998) 192 CLR 431
It is quite wrong to read past authority as
requiring that any reasonably foreseeable
risk, however remote, must in every case
be guarded against (Kirby J at 480)

Check to see if:

Risk is not far-fetched or fanciful (or
insignificant, under s5B)

Risk not far-fetched or

fanciful
The Wagon Mound (No. 2) [1967] 1
AC 617
Wyong SC v Shirt (1980) 146 CLR 40
Chapman v Hearse (1961) 106 CLR
112

Calculus of Negligence under

5B(2)
Probability of harm occuring if care
not taken
Likely seriousness of harm
Burden of taking precautions
Social Utility

Breach of Duty Likelihood of

Injury
Section 5B(2)(a) the probability that
the harm would occur if care were
not taken
Bolton v Stone [1951] AC 850
RTA v Dederer (2007) 238 ALR 761

Breach of Duty Seriousness

of Harm
Section 5B(2)(b) the likely
seriousness of the harm
Adelaide Chemical & Fertilizer Co. v
Carlyle (1940) 64 CLR 514
Paris v Stepney Borough Council
[1951] AC 367

Breach of Duty Cost of

Avoiding Harm
Section 5B(2)(c) the burden of taking
precautions to avoid the risk of harm
Caledonian Collieries Ltd v Speirs
(1957) 97 CLR 202

Breach of Duty Social Utility

of the Act of the Defendant
Section 5B(2)(d) the social utility of
the activity that creates the risk of
harm.
Watt v Hertfordshire County Council

Res Ipsa Loquitur

Elements:
Accident must raise presumption of negligence
Examples: Laurie v Raglan Building Co [1942] 1 KB
152, Chaproniere v Mason (1905) 21 TLR 644,
Mahon v Osborne [1939] 2 KB 14

Thing must be under Ds control

Actual cause of accident must not be known
Barkway v South Wales Transport [1950] AC 185
Nominal Defendant v Haslbauer (1967) 117 CLR 448

Effect

Wrapping up Breach of Duty

Standard of Care
What standard of care is owed? (Q of law)
Standard of care owed by the reasonable person in the
circumstances
What would the reasonable person do in the Ds position

Duty breached
Did the Ds actions fail to meet that standard?
Was risk of injury to the P Reasonably foreseeable?
Degree of risk
Magnitude of harm

IF SO
Was the response of the d to this reasonable?
Calculus of negligence (from s5B) AND where relevant,
consider
Reasonability of precautions
Social utility
Any relevant professional or statutory standards

Part 5 Liability of Public &

Other Authorities
Sections 40 to 46
Provides specific additional
protection for public authorities
including:
-

the Crown
Government departments
Local councils
Other prescribed bodies

Part 5 Liability of Public &

Other Authorities

Section 42 sets out the principles to apply in

determining whether a public or other authority has a

duty of care or has breached a duty of care including:

(a) 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 those
functions,
(b) the general allocation of those resources by the authority is not
open to challenge,
(c) the functions required to be exercised by the authority are to be
determined by reference to the broad range of its activities (and
not merely by reference to the matter to which the proceedings
relate),
(d) the authority may rely on evidence of its compliance with the
general procedures and applicable standards for the exercise of
its functions as evidence of the proper exercise of its functions
in the matter to which the proceedings relate.

Part 5 Liability of Public &

Other Authorities

Section 43: an act or omission by an

authority does not constitute a
breach of a statutory duty, unless
the act or omission was so
unreasonable in the circumstances
that no authority having the
functions in question could properly
consider the act or omission to be a
reasonable exercise of it function.

Part 5 Liability of Public &

Other Authorities

Section 44: Removes the liability of public

authorities for failure to exercise a
regulatory function if the authority could
not have been compelled to exercise the
function under proceedings instituted by
the Plaintiff.

S45- Roads Authorities

(1) A roads authority is not liable in proceedings for
civil liability to which this Part applies for harm arising
from a failure of the authority to carry out road
work, or to consider carrying out road work, unless
at the time of the alleged failure the authority had
actual knowledge of the particular risk the
materialisation of which resulted in the harm.
(2) Doesnt create duty of care simply because the
roads authority had actual knowledge of the risk.
(3) Carry out roadwork defined to include
construction, installation, maintenance, inspection,
repair

Porter v. Lachlan Shire Council

[2006] NSWCA 126
Facts
CLA s3: In this section:
"carry out road work" means carry out any activity in connection with
the construction, erection, installation, maintenance, inspection,
repair, removal or replacement of a road work within the meaning
of the Roads Act 1993 .
Roads Act 1993 (dictionary)
road work includes any kind of work, building or structure (such as a
roadway, footway, bridge, tunnel, road-ferry, rest area, transitway
station or service centre) that is constructed or installed on or in
the vicinity of a road for the purpose of facilitating the use of the
road as a road, the regulation of traffic on the road or the carriage
of utility services across the road, but does not include a traffic
control facility, and carry out road work includes carry out any
activity in connection with the construction, erection, installation,
maintenance, repair, removal or replacement of a road work.

s45 - Porter v. Lachlan Shire Council

Hodgson JA (Beazley JA & Giles JA agreeing)
34 In my opinion, this case does come within s45, on either
of two bases.
35 First, where that part of a road used for pedestrian
purposes has been altered by the installation of a footpath
and a gutter, leaving what may be called a nature strip in
between, it is in my opinion an unduly narrow view of what
constitutes a road work to say that, while the made footpath
is a road work and the gutter is a road work, the nature strip
between them is neither a road work nor part of a road work.
In my opinion the better view is that the whole of the area
for pedestrian purposes, comprising the made footpath, the
nature strip and the gutter, comprises a road work.

s45 - Porter v. Lachlan Shire

Council
Hodgson JA (Beazley JA & Giles JA agreeing)

36 Second, in any event, where there is a hole in that part of a

road which is a nature strip within the area used for pedestrian
purposes, it would be road work to fill and make good that hole.
That view is not in my opinion precluded by the use of the words
constructed and installed in the definition of road work in the
Roads Act, which, unlike the relevant definition in s45 of the Civil
Liability Act, is an inclusive definition and not an exhaustive
definition. Once it is accepted that to fill and make good the hole
would be road work, then the question would arise whether failure
to do this would be failure to carry out any activity in connection
with the construction, erection, installation, maintenance, repair or
replacement of a road work within s45(3). In my opinion, it would
be: although the words construction and installation, and the
indefinite article a in front of road work, could be taken as
inapt for the filling and making good of a hole, on balance I think it
would be too narrow an approach to hold that the words do not
extend to such activity.

s45 - Porter v. Lachlan Shire

Council
Hodgson JA (Beazley JA & Giles JA
agreeing)
37 On either basis, s45 applies: on the
first basis, the allegation would be that
the respondent failed to maintain a road
work, and on the second basis, it would
be that the respondent failed to
construct or install a road work.

s.45 Actual Knowledge:

North Sydney Council v- Roman [2007]
NSWCA 27

Facts
At trial

s.45 North Sydney Council vRoman

Held, allowing the appeal, per Basten JA
(Bryson JA agreeing):
1. For the purposes of s.45 actual knowledge
must be found in the mind of an officer within the
council having delegated (or statutory) authority
to carry out the necessary repairs.
2. The evidence demonstrated that no Council
officer at a decision-making level had actual
knowledge of the particular pothole and
therefore the appellant did not have such
knowledge. Accordingly, the exception to s.45
was not engaged and the statutory immunity
prevailed. Per McColl JA (dissenting)

s.45 North Sydney Council-vRoman

Held, allowing the appeal, per Basten JA
(Bryson JA agreeing):
1. For the purposes of s.45 actual knowledge
must be found in the mind of an officer within the
council having delegated (or statutory) authority
to carry out the necessary repairs.
2. The evidence demonstrated that no Council
officer at a decision-making level had actual
knowledge of the particular pothole and
therefore the appellant did not have such
knowledge. Accordingly, the exception to s.45
was not engaged and the statutory immunity
prevailed. Per McColl JA (dissenting)

Part 8: Good Samaritans

S56:
a "good samaritan" is a person who, in good
faith and without expectation of payment or
other reward, comes to the assistance of a
person who is apparently injured or at risk of
being injured.

s57
(1) A good samaritan does not incur any
personal civil liability in respect of any act or
omission done or made by the good samaritan
in an emergency when assisting a person who
is apparently injured or at risk of being injured.

Part 8: Good Samaritans

(ss55-58)
S58: where liability not exempted:
Where good samaritan caused the injury
in the first place,
The good samaritan was under the
influence of drugs/alcohol AND failed to
take reasonable care
The good samaritan was impersonating
emergency service worker, policeman or
pretending to have the skills to address
the current injury

Part 9: Volunteers (ss59-66)

Section 60: Defines community work
to mean work that is not for private
financial gain and that is done for a
charitable, benevolent, philanthropic,
sporting, educational or cultural
purpose. It excludes community
service orders imposed by a court.

Parts 8 & 9 Good Samaritans &

Volunteers

Section 61: No civil liability for a volunteer doing

community work
BUT does not extend to
criminal acts (s62)
Acts whilst intoxicated AND volunteer failing to
exercise reasonable care and skill (s63)
actions outside the scope of the charitable
organisation or contrary to instructions (s64)
where the volunteer is required by State law to
be insured (s65)
Or motor vehicle accidents (s66)