Negligence Law in Two Hours

[Music] you know everyone and welcome to the fifth of my two-hour lore videos the previous four videos have now amassed nearly a hundred and sixty thousand views between them how cool is that that's an awful lot of students that I've hoped to pass courses I can tell because of the number of emails and comments that I get thanking me now I really value that a surprising number of students have asked me to tackle negligence as a priority so here it is negligence is actually a companion to my earlier video tort law in two hours you see torts are divided into the intentional torts which are the ones in the other video and negligence which is this video some university courses divide these into two subjects torts a and torts B or something along those lines so after reviewing this video and the intentional torts video you'll have covered all of the basic thoughts material in four hours obviously that's if I can manage to get this done in two hours shall I give it a crack start the clock now I normally start these two hour videos with a little bit of historical context I'm gonna do that in a moment but for negligence I think it's more important that you start out by understanding the three basic components of the negligence action if you don't get those in your head from the very outset none of the rest of what I'm saying will make any sense at all the three core elements of negligence are a duty of care a breach of that Duty and damage caused by that breach let's look ever so briefly at those by considering a really simple scenario a rear ender so let's say I'm driving along on the way to work I have an audio book playing perhaps something by Anthony Trollope or O'Henry the car in front of me stops because of a sudden traffic snarl and I'm too distracted to initially notice when I do notice I jam on the brakes but it's all a bit late and I end up in the back of the car in front of me nobody has heard but both cars have banged up a bit now under negligence law I will be responsible for the damages of both cars here's how we can tell first I had a duty every driver on the road has very clear duty to concentrate on the traffic around them and to adjust their driving in accordance with that traffic a second I pretty clearly breached that duty I wasn't watching third my breach of that duty caused damage every time we look at anything to do with negligence it all really comes down to those three elements duty breach damage so I want you to have them in mind right from the start we're always going to be talking about duty breach and damage okay so let's step back in time negligence is actually quite a recent development in the law it's really only been around in anything like its current form since the 1930s before that the main actually in talk was trespass now those of you of watch tort law in two hours we'll know that trespass is both direct and intentional so damaging someone's car is a trespass if you walk up with a stick and bashing the headlight but what happens if the damage is either caused unintentionally or indirectly well in those cases back in the old days the plaintiff was allowed to make what was called an action on the case an example of such a case was groped against Chester and Holly Head in 1848 in which the plaintiffs sued for harm caused to them when the rail bridge they were traveling over collapsed you can see that the harm to them was neither intentional nor was it direct but surely they deserve some form of compensation the term action on the case doesn't make an awful lot of sense from a modern perspective so don't spend too much time trying to understand the point to note is that the common law was slowly groping its way towards an understanding that sometimes harm was caused either indirectly or unintentionally and in certain circumstances the plaintiff ought to be compensated for that harm along into that scenario came mrs. Oban ahue who in August 1928 met a friend at a cafe never for one moment dreaming that she was about to write herself into the history books by putting herself at the center of perhaps the most famous case of all Donohue and students a friend bought her a bottle of ginger beer she drank it and towards the bottom of the bottle she began to see that there was something unusual inside the bottle it turned out to be the decomposed remains of a snail which it obviously crawled into the bottle while it was in storage awaiting filling she suffered shock and gastroenteritis and she sued now first and foremost she couldn't sue in contract for one thing she hadn't bought the ginger beer so she wasn't part of the contract and even if she had bought the ginger beer her contract would have been with the cafe owner not with the manufacturer she couldn't sue in trespass either because the manufacturer had not intentionally harmed her and finally she couldn't sue as an action on the case because in a sense the manufacturer hadn't even caused her harm indirectly it could be argued that she had caused the harm to herself but by drinking the contaminated ginger beer still she sued anyway and she was the right person in the right place at the right time the action ended up in the House of Lords where their Lordships and Lord Atkin in particular decided the law was due for a change the court found that manufacturers of products did are the ultimate consumer of those products a duty of care particularly in circumstances where any intervening party such as the distributor or the cafe owner would have no opportunity to check or otherwise interfere with the product safety the court found that if a party was negligent in relation to that duty then the party could be liable in tort and so the tort of negligence was born once it was born the tort of negligence became a surprisingly flexible and adaptive legal tool it came on the scene at around about the same time that Motor Vehicles became popular and from the very start negligence has been the usual form of action taken by one party against another after a motor accident negligence is also the basis for virtually the entire personal injury law industry as this area of law developed insurance companies stepped in to assume a lot of the risk of neck anyone who registers a motor vehicle must ensure against damage caused negligently to third parties anyone with a business or anyone whose activities affect the public will usually be required to hold public liability insurance in fact there are dozens of specific instances of negligence which can be insured against and the fact that the defendant is likely to be an insurer with a lot of money makes negligence a very attractive cause of action simply put an insurer is much more likely to be able to pay out on a claim than is a private ISM all of this led to a gradual increase in negligent claims although a lack of records and the fact that many negligence matters settle make it impossible to really specify the increase what we do know is that Awards started to grow and as a result insurance premiums started to rise and around the turn of the 21st century there was either a crisis or at least the perception of a crisis and this led to what was called the report we'll talk about the in purport in a few moments time but before we do the last general principle I want to outline is the distinction between negligence and criminal negligence many of you will be aware that a large number of the intentional torts line up with criminal offenses so the tort of conversion is very similar to criminal stealing the tort of battery is very similar to criminal assault the sort the tort of trespass is very similar to criminal trespass false imprisonment is very similar to the crime of deprivation of Liberty well negligence also has a criminal cousin called criminal negligence and they work pretty much in the same way there needs to be a duty a failure of that duty and harm as a result the difference is that for criminal negligence the duty must be really spelled out clearly in the statute much more so than for the tort of negligence and also for criminal negligence the breach of Duty must be sufficiently serious that it merits criminal punishment in this video I'm really only going to be talking about negligence as a tort if you want to learn more about criminal negligence then go have a look at my criminal law in two hours video we're going to go back now to what was called the insurance crisis around 1999 to 2002 because this so-called crisis led to very substantial changes in negligence law basically it caused negligence law in Australia to go from being largely proscribed by a common law to being largely a statutory area of law perceptions in Australia had been growing for some time that we were becoming a more litigious society more like the United States of America where some negligence judgments are just sixteen different shades of ridiculous those perceptions seem to coalesce when a company called HOH insurance crashed this led to a serious shake-up in the Australian insurance industry essentially insurance companies have reached the view that they were not making enough money because they were facing litigation more often because developments in the case law have made it too easy for plaintiffs to win and because the awards given the plaintiffs were too high other insurers started to abandon the Australian market for these reasons those insurers which remained started to really jack up their premiums the media caught on to the story which was quite unusual really one would hardly expect insurance to become the issue of the day in Australia but it did the media started to report about nonprofit community groups and kids sporting groups which was shutting down simply because they couldn't manage the increases in their insurance there were also stories about medical practitioners in particular obstetricians charging large upfront surcharges simply in order to offset the increase in their insurance costs whether there was an insurance crisis or not there was certainly the perception of an insurance crisis a number of states began to move towards reform in the area of negligence law but then the Commonwealth stepped in and appointed a full person panel of eminent persons chaired by former Western Australian Supreme Court judge and later New South Wales Court of Appeal Judge David EEP their task was not simply to review the law of negligence their terms of reference were very clear they had to make Awards tough and again and lowering value the terms of reference said the award of damages for personal injury has become unaffordable and unsustainable as the principal source of compensation for those injured through the fault of another it is desirable to examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death so the panel wasn't tasked with considering if negligence law was unfair they were told it was unfair and they were invited to find ways to fix it they did so and most of their recommendations would make absolutely no sense at this point in the video but one key result was that each state and territory passed legislation which made neutral negligence largely a creature of statute instead of a creature of the common law in Queensland that legislation is called the Civil Liability Act of 2003 so when we study negligence we have a hard task in life because we have to start and finish with the statute and yet the statute wasn't just invented out of nowhere the statute rests on 70 years of frenetic development by the common law so you need to understand the common law in order to make sense of the statute the task for me in this video is going to be finding the right balance you have to understand understand the statue or you'll fail your exams but if you don't understand the common law well you won't understand the statue okay enough background folks let's really get stuck into the war of negligence the first and most fundamental principle of negligence law is that there must be a duty of care a person is not necessarily responsible for harm they caused in circumstances where they have no duty of care towards the other person if there's no duty there's no negligence let me give you an example let's say there are two shops in one more then they're selling the same product one of the shops is doing great and the other one is a crisis point if that second shop doesn't get enough sales today they'll have to pull down the shutters tomorrow I have money in my pocket actually I'll probably have a car do carries cash these days right I have money in my pocket and I want to buy one of the products now if I buy from the successful store the result will be the end of the other business so you can see that my decision will cause harm to that struggling business but you could never say that I had a duty to avoid that harm could you I can spend my money where I like and while I may be sympathetic it can never become my responsibility that the struggling business failed so if a person wants to sue for negligence - the first thing they're gonna have to show is that the defendant owed them a duty of care no duty of care no negligence a duty of care boils down to three elements first reasonable foreseeability in other words is it reasonably foreseeable that my action will cause harm to another person second if it is reasonably foreseeable is that person who's going to be harmed a person to whom I owe a duty are they of some category of people to whom I owe a duty and also is my action sufficiently proximate or sufficiently logically connected to their harm finally if the harm is reasonably foreseeable and the person is from the right sort of category then we ask is it fair and just that a duty should be imposed on me or is there some reason why such a duty might be unjust we're going to go into these three categories in a lot more detail now starting with reasonable foreseeability the idea of reasonable foreseeability is actually pretty simple the idea is that if you know your actions might cause harm to others then you have a duty of care to take steps in relation to that huh if on the other hand the harm is not reasonably foreseeable well then you obviously have no duty because how can you possibly take steps to prevent harm if you have no idea that the harm could follow the idea of reasonable foreseeability is actually older than negligence and self this is one of the ideas that began as an element of an action on the case the classic Authority is called heaven Penda in which master of the rolls brash said whenever one person is by circumstances placed in a position with regard to another that everyone of ordinary sense who did think would at once recognized that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other a duty arises to use ordinary care and skill to avoid such danger this idea was then taken up in Donohue and Stevenson by Lord Atkin who put it this way you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor now the fundamental common-law position really hasn't departed from those two earlier cases what it's done since then is to add a heap of detail you see if we take lord atkin's seemingly simple statement three things fall out of it straight away first you have to be able to reasonably foresee the harm those of you who've studied a bit of law already will immediately recognize that this is what we call an objective test so we're asking in effect what an ordinary person in the position of the defendant foresee harm arising from their acts or omissions in other words the more that foreseeing the harm would require special knowledge the less likely it is to be reasonably foreseeable I think said that as we'll find out later on if a person holds themselves out as an expert then they'll be expected to foresee those things which an expert would recently foresee so the first point is that reasonable foreseeability is an objective test next returning to Lord Atkin he says that the harm must be likely to injure your neighbor now that's no longer the test so don't go making a note of that and using it in your studies the reason lord atkin's use of the word likely remains important is that you don't have a duty to address every single potential reasonably foreseeable harm some reasonably force the harm is gonna be so unlikely that you don't need to do anything to prevent it that's the law and we'll see that in more detail later on at the common law a risk is reasonably foreseeable if it is not far-fetched and fanciful this is a pretty low bar a risk could be pretty darn unlikely and still not be far-fetched and fanciful so a risk which is unlikely but still not far-fetched and fanciful will likely create the duty also bear in mind that the defendant needs to foresee human vaguer and humans are often to put it bluntly idiots people disobey signs they disobeyed rules and so if harm is reasonably foreseeable to a person disobeying those rules well then that may be enough to create a genie of care finally Lord Atkin says that you only have this duty in relation to your neighbor now the neighbor here was used in the biblical sense of the parable of the Good Samaritan so a neighbor is a person you're connected to not literally the person who lives in your neighborhood but lord atkin's choice of words almost forces us to adopt the words of Luke in that parable and to ask and who is my neighbor in other words to whom do I owe a duty well they've been a couple of approaches to working out the extent of what we might call the neighbor principle and this is important because by defining the people to whom a duty of care is armed we're really defining who will be able to take action successfully under the law of negligence perhaps more importantly if we don't carefully define who can take an action in negligence then nobody could ever safely do anything for fear that your action might have some consequence that you've never for someone you've never heard of through some mechanism you never imagined so who is my neighbor in relation to whom should I be thinking about reasonably foreseeable harm one way to think about this I'll call the class of persons approach in other words sometimes you ought to know the actions you might take might affect a certain class of persons even if you don't specifically know who they are this is most obvious in product liability cases like the original snail in a bottle if the manufacturer makes a defective product then they know that out there there's a category of people who are likely to buy that product or we use that product and therefore that group of people is likely to be exposed to any harm from defects in the product but what results in this class of persons what is it about each class of persons that makes them a group to whom a duty of care should be hold the answer brings us to the second and far more important approach to understanding the neighbor principle the issue of proximity the concept of proximity is really quite simple in general terms the closer you are to a person the more likely you are to have to consider the impact of your actions upon so to take an obvious example if you're driving a car towards a pedestrian crossing the people on that crossing are proximate to you if they are close to you because that close to you your driving is likely to affect them in a way that it's not likely to affect someone on the next street however in negligence law the concept of proximity goes well beyond this physical proximity it goes to what we might call consequential proximity so if you can think of your action having immediate consequences those consequences will affect other things and those consequences will affect other things and so on and so on and so on well the people who suffer the consequences closer to you in that logical sequence are considered to be more proximate to you some examples from the case will help this to make sense an obvious starting point is Donohue and Stevenson herself mrs. Donahue was physically nowhere near the ginger beer bottling plant when she drank the fateful and famous snail flavored ginger beer however from a logical perspective the line from bottling to sickness was very clear when the bottle left the factory someone was going to end up drinking it that was the whole point and that person would end up drinking whatever was inside the bottle so it was fair for the ginger beer bottles to have a duty of care to the person drinking the drink mrs. Donahue was logically proximate to the bottle however now let's say mrs. Donoghue had been wearing a borrowed dress for her cafe date and the ginger beer had caused her to throw up all over it ruining the dress well the owner of that dress has suffered harm as a result of the bottle its failure to take care but the owner of the dress his file is proximate untie the bottle and knew for sure that someone would drink the drink and they might have reached the point of realizing a contaminated drink would cause the person to throw up but there's no way that they worked to have foreseen that the person taking their drink and throwing up would be wearing a borrowed dress so there was less proximity and therefore less reasonable foreseeability involved in single would sure counsel an architect did not properly follow the standards when designing a stage in a hall sometime later the stage was in use and it collapsed injuring a number of people the high court found that there was sufficient proximity between the architect and those who were injured in essence that should have been clear logically that people would end up standing on that stage and that if it was not designed properly it might collapse and they might be injured there was sufficient proximity in a case called rajesh and coffee a driver's negligent driving led to the injury of a police officer the officer's wife saw him in the hospital with tubes coming at him and overheard the staff saying that he was not expected to live she suffered nervous shock the High Court ultimately found that there was sufficient proximity here because the negligent driver ought to have been easily able to understand that if he badly injured someone their loved ones might suffer from a shock there was sufficient logical or consequential proximity in a case called Chapman and hearse there was an initial traffic accident caused by Chapman's negligence a Good Samaritan dr. cherry stopped to help and while standing there dr. cherry was struck and killed as a result of negligent driving by a hearse who drove on the scene the High Court decided that Chapman the original driver bore some the responsibility for the harm to the good samaritan because he ought to have understood that his negligent driving could result in somebody coming to his aid and therefore being at risk on the side of the road so there was sufficient logical proximity finally on this point we need to deal with an important case called pair a and app and this case is sometimes described as doing away with the notion of proximity in australia but the reality is slightly more complicated in this case a potato farmer app and negligently allowed a potato disease to spread to neighboring farms the disease did not spread to Perez farm but because the disease was in the district per a lost a big contract to supply potatoes into state now the court found that a pan did operator duty of care the court focused first on reasonable foreseeability but then it also added in the idea that especially in cases like this we are talking about losses and harm that occur through the operation of the economy rather than any physical harm a defendant should not be exposed to what they called indeterminate liability so if a negligent act sends harmful ripples through an economy it's not realistic to impose liability for all those effects the thing is doesn't that sound an awful lot like proximity isn't the court really saying that the further away an effect is in the sense of logical proximity the more links there are in the chain of cause and effect the less likely there is to be a G of care it seems to me that the court just repackaged the concept of proximity in different words in any event can you see how the question for the court is whether the plaintiff in the case is someone who the defendant ought to have foreseen as being at risk from their actions either because they were physically right there or because of the logical connection between the defendants action and the plate is harm once this logical test is met the next thing we have to ask is whether there's any consideration in fairness or justice which should relieve them of that responsibility and there are a few ways in which this might happen the first one I'll mention relates to what is called joint illegal enterprise so let's imagine for a minute that we have a gang of jewelry thieves their plan is to tunnel into the area outside a diamond vault and then to blow open the safe and run away with the loot only thing is the explosives guys not terribly good and when he sets off the charges the safe doesn't open but three of his fellow gang members of seriously injured by the blast so should the explosives guy I have a duty of care to the other gang members I mean there's clearly sufficient proximity right well it would be absurd for the law to come to the rescue of the injured parties in that situation the answer is that they shouldn't have joined a gang of jewelry thieves and so there's no duty of care but how far do we take this should any taint of illegality and all be enough to remove duty of care this was the question the court had to consider in a case called valor and preston in that case a group of young thugs had been drinking and partying and then they decided to steal some cars and go burgle some houses clearly a charming young group of citizens the plaintiff was in the back seat of the car sleeping off the alcohol the young driver had also been drinking the stolen car left the road and hit a tree killing one of the occupants and injuring the plaintiff did the driver oh the plaintiff a duty of care at that point given that they were in a stolen car and on their way to commit burglaries well the High Court decided that there was no duty of care their reasoning was because as a matter of logic it is impossible to determine what standard of care is owed by one reasonable car thief to another stealing a car was inherently dangerous one imagines that if they were in their own car and nobody had been drinking then there may still have been a duty of care even though they were on their way to a burglary the whole area of duty of care and criminals has since been further modified by statute I'll discuss that shortly the second public policy exception I'll deal with very briefly it's known as the advocates immunity basically a barrister or a solicitor advocate cannot be sued for their performance in court they do not owe a duty of care to their client the for this is that the lawyers highest duty is always to the court one aspect of that duty is a requirement for the lawyer to bring an independent mind to each case they can't really do that if they're under a duty of care to their client having said this another duty that they have to the court is to give their client the best representation they possibly can so the clients not left high and dry the next fairness consideration which I'll mention briefly relates to the performance of public bodies everything from the Parliament to police the military forces it's very clear that decisions made by these agencies will potentially cause harm to take a contemporary example there are various opinions about what if anything the government should do about climate change if the government continues to financially subsidize coal powered electricity generation then potentially the government is breaching a duty of care towards young people who may have to live their lives dealing with far more major weather events than than previous generations everdene however if the government refuses to spend money on coal power generation then the government may breach until you've care to those who rely on cheap electricity which is all of us if we don't agree with the government's policies or priorities then the response is doctrinally to be found at the ballot box not in the locals in many cases this makes sense but in some cases it may be quite unsatisfactory one of the best-known examples is a series of cases known as The Stolen Generations case particularly to glow and gunner against the Commonwealth the courts found that there was no duty of care to stolen Aboriginal children due to this public policy exception this consideration dovetails nicely in with the final exception which relates to circumstances where the defendant is under another duty which they must implement and which is inconsistent with the claimed duty of care this happened in sure Savile and Albion against the Commonwealth where a merchant ship claimed to have been harmed by the negligent actions of a naval vessel during the Second World War when the two ships collided in the night the Navy ships duty to it's military duties meant that there was no concurrent civil duty of care we're nearly finished with the common law concepts underlying duty of care before we move on to the statute though I want to cover two final points the first is awarding about what we call circular logic you see in most negligence cases there is harm the harm is right there in front of everyone it's easy to see it's all too easy to conclude that because there was harm there must have been a duty to avoid that harm unfortunately it doesn't work that way the court has to do everything it can to put itself in the position of the defendant at the time of their action or omission if we could start with the arm and work backwards and we wouldn't really need the concept of a duty of care because it would always be possible to find such a genie the second has been implied by what I've already said but I want to draw out for you it's not just enough to find that there was a duty of care any GD of care by the defendant towards the plaintiff the duty of care has to relate to the actual type of harm which was caused to the plaintiff so when we're talking about reasonable foreseeability we don't just ask ourselves whether any harm was foreseeable we ask ourselves whether the harm which actually occurred was foreseeable and yet at the same time we don't want to go too far with that if a plaintiff is injured in a car accident by say getting a broken finger they won't need to prove that the defendant somehow ought to have reasonably foreseen damage to their finger however they will need to show that the defendant ought to a foreseen that they might be physically injured so all of that basically describes what the common law says about duty of care you have a duty of care to avoid acts or omissions which you can reasonably foresee will harm a person reasonable foreseeability includes the notions of physical or consequential proximity meaning that for harm to be reasonably foreseeable the person harmed must be sufficiently connected to the defendant either by physical proximity or by the logical consequences of the conduct so now we turn to the statute the Civil Liability Act 2003 if you're stumped by brushing through the table of contents you'll see that even though this is a piece of legislation about negligence there's no section defining duty of care lots of stuff about breach which we'll come to soon but no section that says this is the duty of care which is imposed on people so in desperation we turn to the dictionary in the act and we find the duty of care means a duty to take reasonable care or exercise reasonable skill or both duties well that doesn't really help as much does it it doesn't help us to understand for instance how proximity works so we keep looking in the statue and we find that just above that definition of duty of care there's a definition of duty subsection a of that definition says that in the Civil Liability Act Duty means that Duty in thought that's a really complicated long-winded way for the statute to basically say that when it comes to duty of care we stick with the common law the Civil Liability Act doesn't have the definition of duty it remains in essence the product of the case law in Donohue and Stevenson and all the cases which have followed the Act does include some exceptions where a duty of care would exist but the Act removes the Duty one of these is a duty of care for an obvious risk resulting from a dangerous recreational activity there are relatively few decided cases on this but from those which have emerged it seems that obvious is a fairly stringent test so for instance in Queensland against Kelly the plaintiff ran down a steep sand dune towards lake wobby on Fraser Island he lost his footing on the toon plunged into the water struck his head and was rendered tetraplegic on the way to the lake he passed a sign with pictograms warning of the danger of rocks under the surface of the lake now you and I might think this was an obvious risk but in a thoughtful and detailed judgment the Court of Appeal decided it was not most obvious risks associated with most sports are relatively minor risks a cricketer risks being struck by a ball a macrame enthusiast I don't know ropeburn or something relatively few recreational activities involve obvious risks of the type that might bring a person before the courts however if someone was a circus enthusiast and was learning to juggle burning battens or learning swords for me then I suppose the risks of those recreational activities would be obvious next a range of organisations such as the Queensland ambulance service the surf lifesavers and the Royal Flying Doctors bear no duty of care when their performing duties in emergency situations in good faith and without reckless disregard for the safety of the plaintiff in other words the Lord recognizes that rescuers in these situations have to make life-and-death decisions in a split-second and it's not fair for them to be worrying about potential liability so long as they're genuinely acting in good faith beware though that on at least one occasion the courts in Queensland have read this section very closely if the person harmed can sue someone other than the protected entity then there may be no coverage so in Rome spray against Queensland the plaintiff sued the state government with respect to injuries allegedly caused by the negligence of an ambulance officer and she was successful next there's a rather odd exception relating to food donors so these are restaurants and the like which donate leftover food for the homeless these organizations are protected from liability provided they inform the organisation to whom the food is donated of the proper storage and handling requirements for the food and the time within which it must be consumed there's protection for volunteers doing community work organised by a community organisation this is everything from umpiring kids netball to handing out how to vote cards to door-knocking for the Red Cross there is no duty of care for acts done in good faith for one of those organisations basically the idea here is to stop these organizations from being blown out of the water by insurance costs while the section refers only to the volunteer being the individual it seems clear now that the protection extends to the organisation self next when we were talking about Darla and Preston a few minutes ago I mentioned that the statue has changed the rules for how people engaged in criminal activities can recover well the new rule is found in section 45 of the Civil Liability Act basically the rule is that there is usually no duty of care when the plaintiff was involved in committing an indictable criminal offense for those of you who have yet watched my criminal law in two hours video an indictable offense is one of the more serious ones so this is not only people who are involved in the joint criminal enterprise it also means that if say a burglar invades someone's home in the night trips over and suffers a serious injury well the homeowner has no duty of care towards that person in negligence if the Court believes that this provision operates to unjustly then the court can still award damages for negligence but those damages must be reduced by at least 25% crime doesn't pay kids finally the statute now includes provisions specifically relating to intoxication there are a few rules the first which we've already touched on with the common law is that intoxication is irrelevant to duty of care so the reasonable care that has to be taken by an intoxicated person is the same duty that they would have if they were sober and works the other way too you don't have a greater duty of care to a person just because they're intoxicated the second rule is if the plaintiff the person who was harmed was intoxicated at the time they were harmed there will be a rebuttable presumption that there is contributory negligence we're going to talk in some detail about contributory negligence later but for now let's just say if the defendant is drunk they will have to prove that their intoxication was irrelevant to the harm they suffered if they can't prove that then their award of damages will be reduced next if you rely on the care and skill of a person and if you know or ought to know that they are intoxicated then there is a presumption that your award will be reduced by at least 25% unless you can show either that your intoxication was not relevant or that you had no other option if you rely on that person's care and skill driving a motor vehicle then the presumption is that your award will be reduced by 50% don't get in a car with a drunk driver folks so in short the statutory approach to duty of care is to begin with the common law position on duty of care and then to remove that duty in various circumstances where the imposition of the common law duty was seen to be having a negative impact on the community as a whole let's summarize duty of care before we move on shall we we start with Lord Acton's famous statement right back in Donohue and Stevenson you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor so the first test is reasonable foreseeability which is an objective test so we ask whether an ordinary person in the position of the defendant ought to have foreseen that their action would cause the relevant harm the second test is essentially proximity we ask whether the victim the plaintiff was sufficiently close to the defendant this means either close physically or close in terms of the logic of cause and effect we ask if the victim was sufficiently close sufficiently proximate that the defendant ought to have considered the potential harm to them if the de victim is sufficiently proximate and if the harm was reasonably foreseeable then we ask whether the duty of care was removed it could be removed under the common law either because the victim was engaged in an unlawful enterprise or because the defendant was a barrister or solicitor engaged in court advocacy or because the defendant was a public body implementing public policy the duty could then be removed by the Civil Liability Act if the risk to the defendant was an obvious risk from a recreational activity or if the defendant was an organization performing public safety duties if the defendant was a food donor or if the defendant was a volunteer engaged in community service if you have reasonable foreseeability and you have proximity and none of the exceptions apply then you have a duty of care if there's no duty of care there's no negligence if there is a duty of care though we move on to consider the content of to consider what the content of that GD was and whether the GD was breached we begin thinking about breach of duty in exactly the same place where we began thinking about duty of care with waterken in Donohue and Stevenson and his famous dictum that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor this time we're going to focus on the first part of that sentence you must take reasonable care so the court will ask what would a reasonable person have done to take care in that situation and did the defendant do those things the first thing we have to note is that because this is an objective test the court theoretically should not be too worried about factors individual to the person and yet if the reasonableness brush is used too broadly it may result in injustice it may well be that a reasonable person in the prime of life and health might react to a certain risk entirely differently to a reasonable person who's aged and in a wheelchair feminist legal scholars have made the point time and time again that historically the reasonable person was in fact a reasonable man and that there are no guarantees that a reasonable man and a reasonable woman might react to the same risk in the same way one method that was developed to get around this was the idea that we would consider a reasonable person in the circumstances of the defendant that sounds like an improvement but if we took it to its natural conclusion there would be a different standard applying to each individual person because all of our circumstances are at some level unique so really the law has to determine which characteristics of the defendant will affect the standard that they're required to meet and which characteristics will be ignored this is a value judgment and it's one that can potentially be argued back and forth on a case-by-case basis but here are a few general conclusions the court has reached in the cases first I want to talk about medical circumstances in many ways in our modern society we make reasonable adjustments to accommodate people with medical difficulties or mental illness or disabilities however in negligence law those factors are often not relevant so for instance if a person with a mental incapacity bears a duty of care towards someone else they will be expected to meet that Duty to the same level as a person without that mental incapacity so in carrier and Bonham the defendant was schizophrenic and stepped out in front of a bus in order to attempt suicide carrier was the driver of the bus he hit the brakes but still struck bottom injuring him but not killing him the accident had a terrible impact on the driver who was unable to face continuing employment as a bus driver the driver sued and was successful Bonham was held to have had a duty of care to passing drivers when he stepped onto the roadway it was reasonably foreseeable that a driver would hit him and that the driver would be dramatically affected Bonham therefore had a duty not to step in from the bus his schizophrenia was held not to be relevant similarly in an earlier South Australian case called nezhinski and Becker a driver who had only one eye was held to the same standing as a driver with two eyes essentially the rationale was that if the defendant chose to drive the defendant must bear the same duty of care as other drivers as a driver with their vision intact in the same way a lack of experience will not change the duty of care a person who is inexperienced in some activity will nevertheless bear the same duty of care as a person who is much more experienced now these might both sound quite harsh after all a person with a disability may simply not be able to meet the standard of care which can be met by a person without the disability and a person who's inexperienced certainly cannot discharge their duties in the same way as an experienced person however we need to bear in mind the purpose of negligence law which is to say that a person's been harmed if the defendant had a duty and they failed in that cheating and harm is caused then the harm affects the plaintiff just as badly whether the defendant is disabled or inexperienced for neither of those things the harm is the same so the liability should be the same this is quite different to the criminal law where disabilities and inexperience would definitely be taken into account because the criminal law is answering quite a different question negligence law is answering the question should this victim be compensated while criminal law is answering the question should this perpetrator be punished having said that the content of the duty of care does shift for one specific group in the common law and that group is children the law recognizes that children are developing it's also usually the case that children are subject to some level of supervision whether immediate or otherwise and so the standard required for children is the standard of a reasonable child of the defendants age a child of two years age will therefore bear virtually no jeev care while a child of seventeen will bear a duty of care essentially no less than an adult so in Mikael and Watson a 12 year old boy sharpened a piece of metal he threw it at a tree but it glanced off and hit a young girl ultimately resulting in the loss of her eye he was found not to be liable in negligence because Molly had a duty of care to those around him he was only expected to exercise the standard of care of a normal twelve-year-old justice Kito in a judgement which reads very harshly fifty years later said that by moving through a society we all take risks that we might be harmed by those around us even if nobody was acting negligently he said one such risk is that boys of 12 may behave as boys of 12 and that sometimes is a risk indeed Michaela Watson still expresses the law in Australia but I honestly don't think it's true it doesn't seem fair to me that the little girl in Michaela Watson got no compensation but if an adult had thrown the same item she would have been substantially compensated it doesn't seem like justice but that's the current rule finally professionals and experts face a higher standard than anyone without that expertise this makes sense when you go to an expert you're doing so because they're expected to perform to a higher standard than an amateur well won't take this any further at the moment because we've got a whole section on these special duties coming up later so where does this leave us we're going to assume we have a duty of care what must be done in order to satisfy this duty of care well we must do what a reasonable person would do and a reasonable person in this sense takes little account of the individual circumstances that the person unless they're a child or a professional for everyone else the starting point is to ask what are what an ordinary reasonable person would do in relation to the risk of harm arising from their actions well what indeed how do we work out what a reasonable person might do in relation to the risk of harm this is one of the few areas in which American law has been very very influential over Australia because to answer this question we still refer to what is called the calculus of negligence first described by the famous and brilliantly named American judge learn at hand in a case called the United States against Carole towing company he said that in order to determine what a reasonable person would do in order to discharge their duty of care we should consider one the probability of the arm carrying to the gravity or seriousness of the resulting harm and three the burden or cost or practicability of taking precautions to prevent the harm occur this test was then taken up by australian course we're going to look at each element of the calculus of negligence in turn but before we do it's important that I let you know that while these are traditionally presented as probability gravity and cost in that order the order is actually quite irrelevant there's no logical sequence between them and no one element is more important than the others so let's start with probability this facet of the calculus of negligence works pretty much hate expect the more likely the harm is the more you want to do in order to prevent it some risks are almost certain to cause harm if you don't take steps to control them so for instance if you light a bonfire in the middle of a wooded area in the middle of a dry summer and you leave it unattended a bushfire is all but certain so you would need to take steps to prevent that damage either by clearing ground around the fire or more likely by choosing another night or another month or another location for your bonfire on the other hand in a case called Bolton and stoned a mighty cricket shot went for six and struck Palmer's stove his house was near the ground the evidence was that such a big shot was very very rare as little as once or twice a decade the chances of such a shot not only being hid out of the ground but also striking a person nearby that chance was even smaller in fact the risk was so remote that the cricket club was justified in doing nothing on the other hand sticking with the cricketing theme in the case of Miller and Jackson the Millers house was just 30 meters from the batting crease at one end of a cricket field the club build a higher fence around the ground the balls were still hit into the yard quite regularly at least a few times each season causing property damage and risk to the Millers in this case the risk was considered sufficiently high that steps should have been taken to prevent the risk the other thing to keep in mind with probability is that it's a sliding scale at one end risk is negligible nothing needs to be done at the other end harm is almost certain and the duty is very high in the middle though there's that sliding scale and obviously probability is a very imprecise concept in many cases we can say that an outcome is very likely or somewhat likely but is going to be pretty rare for us to be able to say this form of harm has a 42.3% chance of occurring so probability is almost always a question of fact between the parties the general principle though is that the higher the probability of harm occurring the more should do in order to prevent the harm occurring now let's talk about seriousness the case is often used to term gravity but I know that I had many viewers from countries like India and Kenya where English may not be your mother tongue one meaning in English of the word gravity is seriousness the basic principle is pretty obvious the more serious the harm is the more you'll be expected to do to prevent it so on the one hand if we go back to our first cricket in case Bolton and stone the harm from being struck by flying cricket ball is usually quite minor especially at that distance the likelihood that the ball would still be traveling quickly enough to do serious damage is pretty low so nothing was really required at the cricket club on the other hand consider the case of birdie Port Authority against general Jones in that case the Port Authority was building an extension onto the warehouse facility which it was leasing to general Jones the building program included the use of insulation which was hard to set alight but it burning tensely and uncontrollably if it did catch a lot welders who were working on the job inadvertently set the insulation light and the building was destroyed including a large quantity of fruit and vegetables which were the stock of Jim Jones in that case the High Court observed that where the potential harm was massive the obligation to prevent that harm was also massive the majority judge has said indeed depending on the magnitude of the danger the standard of reasonable care may involve a degree of diligence so stringent as to amount to practically a guarantee of safety so at this point we have two of our factors in the calculus of negligence we know that the more likely something is the more you have to do to prevent it and the more serious a form of harm is the more you have to do to prevent it so at this point we really have four categories of harm that mean they're not exactly categories because each of them represents a spectrum but it's helpful to think of them as categories we have serious harm which is likely this is gonna have the highest unive care then we have serious harm which is unlikely that'll have a lower duty of care then we have minor harm which is likely that will also be largely of care and finally we have minor harm which is unlikely the duty of care here is quite small these are the sorts of questions of fact which the court will likely consider when considering what a reasonable person would do to prevent harm in each case but then we add in our third factor practicability practicability asks the question is there anything which could be done to reduce the risk or the harm and if so what's the cost of doing that so for instance let's consider a game of rugby it involves heavy physical contact and so it's reasonably likely that injuries will occur and those will range from very minor to potentially very major injuries now let's imagine we have three ways of dealing with that risk the first way would be by banning tackles in rugby and instead replacing tackling with something else like one player touching another the second way might by stopping play after every tackle or wall and having a doctor examine every player who had been involved the third way might be by challenge changing the rules to remove head high tackling or sling tackles or other particularly dangerous pops of play while leaving the rest of the play undisturbed and by having medical staff available to give immediate treatment if a player is injured now the first method removing the tackles is not practicable because if you remove tackles you no longer have anything which is recognizable as rugby you have touch football instead the second method is not practicable partly because of all the delays in play from the doctors checkups and partly because it would be very costly the final method however is practicable it reduces the probability of the risk it reduces the likely seriousness of the harm and it's something which can reasonably be done in an example from the cases rests in the Commonwealth the plaintiff was injured when the blades of a circular saw came into contact with his hand the Commonwealth which was the employer showed that there was no practicable way in which a guard could be placed between the hand and the blade while still allowing the saw to be operated chief-justice barwick in the high court said the common law a duty of care does not allow it to be said that there is a breach of duty to take reasonable steps to protect the employee against risk of harm from the machine when there's no practicable method by which all risk can be eliminated or indeed where the risk cannot be reduced beyond the point where the use of practical experience can reduce it now as you can imagine this involves some fine judgments on the facts I mean what seems like reasonable expense to the person whose hand was just chopped off might be entirely different to the perspective of the employer however it's not enough to say that a solution is merely expensive or inconvenient the law is likely to hold that a reasonable person would endure some expense or some inconvenience in order to manage the risk to others the question which will be at the heart of many negligence cases will be how much expense and how much inconvenience the answer will often depend on the rest of the negligence calculus so if you have a risk which is high probability and will cause significant harm well then you'll be expected to enjoy a substantial inconvenience and expense in order to mitigate that risk if you have a risk which is high probability but low harm which is which has a low probability of causing substantial harm then you'll be expected to enjoy a some level of inconvenience or expense and the precise amount would depend on the extent of the probability in the harm if you have a risk which is low probability and which will cause little harm then you really won't be expected to endure any significant expense or inconvenience one final thing about the calculus of negligence though the calculus has to be based on the knowledge of the defendant at the time you see quite often there can't so an event an injury or an accident is the very thing which shows there was a risk at all and in many cases where there's been a harm caused the defendant might be inspired to implement some new procedure will make some new investment in order to control that risk well the mere fact that they do that not to be taken as evidence that they should have known about the risk earlier well that they should have implemented those new procedures earlier if the court took that approach she would have the effect of discouraging defendant organizations from taking steps to control risks until after the case ends well that would be a rather unfortunate outcome so that's the common law perspective on breach of duty we ask what would a reasonable person do in order to manage the risk of harm from their actions we know that the reasonable person is Norden re-adopt unless they're acting with some professional skill or obligation we know then that we need to consider the likelihood of a risk occurring the level of harm which would arise from that risk and the practicability of controlling that risk and the BOD balancing these three factors at once we can determine whether a reasonable person would have taken the steps in question so now we turn to the Civil Liability Act how does it handle this question well it does so in sections 9 and 10 of the Civil Liability Act these sections are really super crucial so we're going to spend some time on them in general though they follow the same line of thinking as the common law which is why I've just spent so much time telling you about those common law principles we'll start with section 9 subsection 1 a person does not breach a 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 reasonably took nine and B the risk was not insignificant and see in the circumstances a reasonable person in the position of the person would have taken the precautions now a lot of that'll sound very familiar I mean section 1a talks about the foreseeability of risk and describes it as a risk which the person either knew of or ought to have known about that seems to be essentially identical to the position in the common law wouldn't you say section 1 C then applies that reasonable person test however it refers to a reasonable person in the position of the person that is the defendant some people might be fooled into thinking this means the parliament's encouraging the court to consider the individual circumstances of the defendant when deciding if the defendant is act reasonably after all you might think if the defendant has one eye then a person in the position of the defendant what also have one on the courts have since made it clear that it doesn't work that way the new provision has been held to substantially restate the common law so we're still talking about every adult having to meet the standards of an ordinary person so to this point the statute is consistent with the common law the risk must be foreseeable and a reasonable person would have taken precautions the statute then adds in a further provision that the risk must not be insignificant so this takes us back to the cricket cases if a risk is insignificant then you can't breach a duty of care in relation to that risk the only difficulty with this form of words is that it doesn't really specify whether the risk needs to be insignificant in terms of probability or seriousness or both in reality though to be insignificant we can assume the risk would have to be both low probability and not terribly serious in its consequences so then we go to subsection 2 again to stop me if any of this sounds familiar subsection 2 says in deciding whether a reasonable person would have taken precautions against a risk of harm the court is to consider the following among other relevant things a the probability that the harm would occur if the risk were not taken be the likely seriousness of the harm and see the burden of taking precautions to avoid the risk of harm D the social utility of the activity that creates the risk upon so a B and C of basically the common law calculus of negligence probability seriousness and practicability which the statute describes as the burden of taking precautions to avoid the risk of harm but then the Civil Liability Act adds in that last element the social utility of the activity which creates the risk of harm this can really be seen as a response to the concern raised in the review about the exposure of small community groups to potentially huge liability and groups like sporting associations shutting down because they could no longer afford their liability insurance essentially this paragraph of the statute says that any different activity has substantial public utility then it might be appropriate to accept a higher level of risk in the cases this tends to involve sports which often inherently risky at some level but which are encouraged by governments because of the social utility they provide so recently in tap against the Australian Bushman's Campdraft and Radio Association the new Southwest Supreme Court found that the social utility of organizing camp draft competitions was relevant to whether the organisers met their duty of care that case draw an earlier High Court case called agar and hide which related to rugby union so potentially a person or organization which incurs a duty of care for an activity which brings public benefit well they might have to meet a lower standard of duty of care than a personal organisation doing exactly the same thing but for personal profit or without the public benefit so now we're going to move on to section 10 of the civil liability out this section lays out three further principles the first is that the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible this concept draws on an idea which the court considered in a case called Romeo against the conservation commission of the Northern Territory in that case the plaintiff was a teenager who after being affected by alcohol fell down a six point five meter cliff and she was left paraplegic she argued that the risk of her doing this was foreseeable and that it could have been managed by fencing off the cliff top however the court noted that if that argument provided the conservation commission and potentially the Northern Territory government would potentially be required to fence off many many areas in public and so the total cost of all that fencing had to be measured against the total risk the second principal in this section is the fact that a risk harm could be avoided by doing something in a different way does not of itself give rise to or effect liability for the way in which the thing was done now this is a really good one let's say that a risk has been identified and there are three different reasonable ways of dealing with that risk the defendant chooses one of those ways it turns out that the harm is caused anyway well it's still the case isn't it that they did what a reasonable person would do to deal with the risk the mere fact that there was another way of dealing with it doesn't somehow negate the steps that they already took in an interesting recent case called gray against Coles supermarkets a Kohl's employee hurt his back while lifting goods off a pellet he alleged that there was another way of moving those pallets which would have prevented the injury the New South Wales District Court refused to find a breach of duty in part because even though Cole's didn't implement the plaintiffs preferred method of dealing with the risks of lifting heavy items they did have a system and the system that they had was reasonable this is a really important principle because if this principle wasn't in place a party would have to implement every potential control process for a risk which would get very expensive very quickly the third principle says the subsequent taking of action that would had be actually been taken earlier have avoided a risk of harm does not of itself give rise to or effect liability in relation to the risk and does not of itself constituted constitute an admission of liability in connection with the risk well what a mouthful so this is a statutory expression of the common law principle that we mentioned a few minutes ago if the defendant implements new measures to control a risk after an incident that's not an admission that they should have implemented those measures previously so overall you can see that the statute really echoes the common law we're asking what should a reasonable person have done to control this risk and we're answering that question by reference to the probability of harm the seriousness of harm the practical the control measure and then under the statute we're also considering the social utility of the action which carries with it the risk of harm okay before we move on from breach of duty I want to quickly deal with two other related issues warnings and apologies it makes sense that sometimes a sensible way to control a risk is by giving a warning about that risk the warning allows people to change their behavior in a way that reduces or avoids the risk so if there's a cliff face like there was in Romeo on the conservation of condition which I mentioned a few minutes ago we could put up a sign warning people to stay clear of the edge and that should reduce the risk of them falling the problem is though that this duty to warn can spin right out of control if you've ever watched TV in the United States you've probably been as amused as I have about the number of warnings they're forced to stick on the end of their commercials sometimes the warnings take up longer than the actual Commission imagine you again hiking in a national park can you even begin to think of the number of warnings they might have to put on a sign at the entrance everything from dehydration to drop bears it would take it two hours in a master's degree to go through the whole list statute is now responded on this point by implementing the concept of an obvious risk which is a risk that would have been obvious to a reasonable person in the position of the victim the Act provides that there is no duty to warn of obvious risks unless a the person harmed asks about the risk or B there is a specific duty under some other law to provide the warning or see the defendant is a professional and the risk is in connection with whatever the defendant whatever the plaintiff is seeking advice about so providing a warning is still a very sound way to deal with the GDK but there's no duty to warn of obvious risks finally apologies for many years certainly while I was growing up the conventional wisdom was that if you were in a traffic accident or something like that you should never apologize because this could be taken as an admission of liability now it's highly doubtful that this was ever true I can't find a report in a higher court case where a person was to have accepted responsibility because they apologized after an incident however people really believe these and so the social healing value of an apology or the positive effect of someone expressing sympathy or regret was lost that wasn't very good for anyone so now the Civil Liability Act makes it very clear indeed that apologies have no effect on liability say that with me again folks apologies have no effect on liability you're not admitting anything if you apologize after near an accident ok let's recap we now know that to be liable for negligence you must have a duty of care that means the harm must be reasonably foreseeable to a person who is proximate either physically or logically in circumstances where no exception applies if that GD of care exists then you must take those steps which would be taken by a reasonable person to deal with that risk to work out what that means we use the statutory version of the calculus of negligence which says we have to consider the probability of harm being caused the seriousness of the harm that might be caused the practicability of taking steps to deal with the harm and the social value of whatever activity is causing the risk if there is a duty of care and if the defendant has not done those things which a reasonable person would have done to manage the risk then we move on to the third and fourth elements of negligence which we'll deal with together these are called causation and damage the idea of causation is pretty simple there was a duty there was a breach of that Duty and there was some sort of harm suffered by the plaintiff but before the defendant can be liable you have to show that the harm suffered by the plaintiff was caused by the defendants breach because it might be that yes there was a Gd and yes there was a breach but that the actual harm caused had nothing to do with the breach let me give you an example let's say that a driver negligently secured the load on the you and a furniture item fell off onto the roadway two cars were traveling behind the first driver turned the wheel hard to try and get around the furniture on the road that driver ran off and their car was damaged the second driver behind them was sending a text message not really looking out well they were texting just as the furniture fell off the U their cart drifted off the road there Tyler came off the side of the Richmond and their car spun into a tree can you see how the first cars damage was caused by the ute drivers negligence the second drivers damage might look to the naked eye like it was the same form of damage coming in the same is it but in fact the ute drivers negligence had nothing to do with the damage they just shouldn't have been playing on their phone causation is the process whereby the plaintiff must show that the negligence of the defendant caused the harm which they suffered at common law the main test used to determine causation was called the but-for test in other words a court asked whether the damage would have happened but for the breach of duty so in a famous case called Martians tremendous had illegally parked their truck in the middle of the road in the early hours of the morning so that they could unload fruit and vege for their market stall the plaintiff who was affected by alcohol drove his car into the truck he sued now clearly his alcohol level was one cause but the damage would also not have been caused but for the fact that the defendants parked their truck where they did so they were liable for part of the damage however the but-for test was never a strict test it was one expression of the idea that common sense ought to be ought to be brought to bear on the question of whether the bridge caused the harm the statute expresses it rather differently there are two elements the first is that the breach of duty must be a necessary condition of the accounts of the harm we call this factual causation the second is whether it's appropriate for the scope of liability of the person in breach to extend to the harm so caused we refer to this strangely enough as a scope of liability let's start with factual causation what do we mean by a necessary condition well the rules of formal logic tell us if one of it is a condition for another event it can be either a necessary condition or a sufficient condition a necessary condition is a condition without which the second event would not occur so strangely enough it is necessary a sufficient condition is enough all on its own without anything else to cause the second condition so what the statute is saying is that we ask what's the breech necessary for the harm or with the harm have been caused anyway even if the bridge is not occurred how do we work that out subsection 3 says that factual causation is to be decided subjectively in the light of all relevant circumstances well again this is sounding a lot like the common lore isn't it we ask using common sense whether the harm would have occurred if the bridge had not occurred what all of this adds up to in my view is that the but-for test is still all the rage if a certain breach of duty is a necessary condition then the harm would not occur but for that friendship to me the statute then says that any statement made by the person after suffering the harm about what he or she would have done is inadmissible this is important because the person who suffered the harm might say if there was a warning sign I would never have gone near the edge of the cliff so the lack of a warning sign caused my injury well of course they're going to say that but people ignore warning signs all the time sometimes the presence of a warning sign makes it all the more exciting to take the risk so the evidence of the person who was harmed is really not all that helpful there are three other things we need to consider when it comes to factual causation first it's not always the case in fact it will often not be the case that the breach of duty will be the sole cause of the harm that doesn't affect liability the person who breached the G will be not will be liable for negligence even if the breach of duty was one among a number of causes however the award even against the negligent party may be reduced if there were other significant factors and particularly if one of those factors was the negligent conduct of the plaintiff themselves this concept is called contributory negligence and we'll go into more go into it in more detail later for now just understand that factual causation doesn't require that the breach of duty must be the sole cause of the harm if it is a cause of arm that's enough for liability next we have to talk about what is called a novice actus intervenes or a 'new intervening event sometimes what happens is that there may be an initial breach of the duty but then before that Duty actually causes any harm there may be an entirely separate act which affects the harm increasing or decreasing this is discussed in our Pia case of March since premier but I actually want to return to one I mentioned earlier called Chapman and Hertz that was the one where there was an initial traffic accident caused by Chapman's negligence dr. cherry stopped on the side of the road to help and then he was struck and killed by versus negligence can you see how the injury the death of dr. Cherry occurred as a result of the negligence of the second car but we really can't say that the first act of negligence had nothing to do with it I mean after all if Chapman hadn't run off the road dr. cherry wouldn't have stopped to help and doctor and mr. Hurst wouldn't have run into it other times though the knew intervening event might completely overtake the previous act of negligence to the point where we can no longer say that act caused a harm so in an old Western Australian case called Martin and his body a young woman was in a taxi driven by the defendant there was an accident due to his negligence and she sustained a concussion the hospital however misdiagnosed her as having a fractured skull and she was so anxious about this that she ended up in hospital for two weeks and then she was unable to work for some time in her usual job as a bartender the court found that the hospital's miss diagnosis was a new intervening event and that the anxiety she suffered was due to that misdiagnosis and not due to the taxi accident which after all only left her with concussion so there was still an award against the taxi driver but it was much less than the full claim so the next question is however Court works this out how does it work out whether the new intervening event is merely the consequence of the original negligence or whether the new intervening event should remove liability from the original negligence you can see that in Chapman and hurtis the intervention of dr. cherry would put him at danger from traffic was the almost inevitable consequence of Chapman's original negligence whereas in Martin an is bad there was nothing inevitable about a concussion being misdiagnosed as a fractured skull the final thing to think about with causation is what's called res ipsa loquitur which is Latin for the thing speaks for itself and honestly guys I don't care if I've mispronounced that res ipsa is argued when the link between the negligence and the harm is patiently obvious when there's no other sensible explanation for the harm other than the negligence of the defendant however res ipsa is a matter of logical reasoning rather than being a rule of law and the plaintiff ultimately always bears the burden of proving that the harm was caused by the negligence so in a reality while res ipsa might be pleaded from time to time it would be a fairly brave lawyer that relied on this doctrine much better to come forward with actual evidence so we have our duty of care the duty of care has been breached the final question we have to ask is what sort of damage can be compensated in negligence first up unlike say the tort of trespass negligence is not actionable per se in other words unless there's actually damaged then there's no negligence you can fail to meet your duty of care all you like and provide it nobody gets hurt there's no negligence nominal forms of hurt such as anxiousness embarrassment and fear are all just normal human emotions they're not considered to be harm and they're not compensated in negligence psychiatric injury however can be compensated you might recall that we've already touched on jets and coffee where a police constables wife suffered nervous shock after seeing her husband on the hospital gurney and hearing medical staff tell one another that he was not expected to live but she ended up in a hospital with a diagnosed psychiatric injury it wasn't merely being upset or being in grief in a New South Wales case called wicks against the state Rail Authority along with Sharon and their state rail authority to police officers made claims for psychiatric injury after they attended the terrible waterfowl train disaster in January 2003 in which seven people died than many people were injured now that case related to provisions in the New South Wales Civil Liability Act which don't exist in Queensland's legislation but it's a good example of the sort of mental harm which is actually under the Civil Liability Act in Queensland mental disorders are simply treated as a form of injury they're assessed using the same scale as any physical injury I'll discuss that scale in a few moments in some cases in negligence a person is not injured a property is broken those are usually the easiest ones to work out because the cost of repair or replacement will generally take care of the problem the task for the court in anything is to assess the economic value of the plaintiffs loss finally there is a type of harm called pure economic loss this occurs when the plaintiff suffers no injury to themselves of their property but instead they simply suffer a loss of money or a reduction in the value of their assets as a result of someone else's negligence the case everyone cites is called Cal Tech soil and the dredge Willemstad in which the dredge damaged a pipeline the pipeline was not owned by Cal Tech's so Celtx hadn't suffered any property damage however the pipeline was used by Cal Tech's to move its products without the pipeline Cal Tech's was unable to operate and so it's suffered a loss so you can see that loss was purely economic pure economic loss can be difficult to claim for because the plaintiff has to show that the defendant ought to have had them in mind as potentially suffering that loss in other words the loss still needs to be reasonably foreseeable and that can be a tall order in the case of pure economic loss okay before we come to an end on damages on what a very quickly look at how general damages are calculated in Queensland general damages are jam damages which generally compensate so they cover things like pain and suffering we can distinguish general dangers from what called special damages special damages compensate the plaintiff for a specific loss so a hospital bill will result in special damages whereas the pain of injury will result in general damages the way general damages have worked out in Queensland is that there's a scale from 0 to 100 where zero is a harm so minor that no compensation is payable and 100 represents the gravest type of harm imaginable the general damages payable will be based upon the score given to the plaintiffs injury so we start with schedule 4 of the civil liability regulation 2014 which is a big long list of all different types of injuries and it also gives the range of scores and the factors affecting where the injury should fall in that range so the total or effective loss of a hand scores between 35 and 60 out of 100 depending on a range of circumstances quadriplegia scores between 75 and 100 minor asthma scores between 0 and 5 see how it works now working our way through this particular table would be a specialty even within the legal profession so I don't intend to take it further here but in general terms that's how general damages are worked out the final thing we need to consider here is remoteness of damage you see one person's negligence might cause a chain of events with one problem snowballing into another and then into another and then into another in a logical sense all of those events might be said to be at least at some level the result of the initial act of negligence but common sense is that liability has to stop somewhere otherwise the initial negligent party might end up being responsible for harm they know nothing about two people they know nothing about the rule which is applied in Australia arises from a case commonly called the Wagon Mound what happened in this case was that the crew of the ship Wagon Mound negligently spilled oil in Sydney Harbor some waste cotton was floating on top of the spilled oil so dock workers were welding and sparks from the world in court the cotton the light and that lit up the oil which led to severe fire damage to the docks and several ships so can you see how one thing led to another led to another the rule which was established was that the defendant is only responsible for harm which they could reasonably foresee as arising from their negligent Act the word reasonably tells us that we're really talking about an objective test would an ordinary person foresee the arm which was caused of course this test dovetails nicely with our original test for duty of care which requires people to take measures to avoid harm which they can reasonably foresee if the duty is to take steps to avoid harm you can reasonably force well then it makes sense that the liability should only be for harm you can foresee there is one slight exception though we call that the eggshell skull principle you may have already come across this one in torts basically you must take your victim as you find them and so if the person harmed by the negligence incurs greater harm than most people would because he or she is vulnerable to that type of hunt well then the defendant will be responsible for the harm actually caused to that person not just the harm would have been caused to anyone else okay time for a recap the first stage in any negligence matter is to ask whether there is a duty of care in other words whether it is reasonably foreseeable that my actions might cause harm to somebody whether that person is proximate to me either physically or logically and whether there is any special reason whether Duty should not follow me if there is a duty we then consider what needs to be done to satisfy that Duty we focus on the four elements of the negligence calculus we ask how probable was the foreseeable harm how serious was the foreseeable harm how practicable were measures to control the harm and what social value was there in the act that produced the risk if the answer to those questions suggest that the defendant has failed to do enough to manage the risk then we ask whether that failure caused the harm which is claimed we start with the but-for test but then we modified if there was more than one cause or if there was an intervening event we then asked whether the damage is of a type that can be compensated if the damage to property personal injury including mental harm or pure economic loss if the answer to all of those things is yes and the harm is not too remote from the negligent act then a claim in negligence is made up but it's not game over just yet we have one more question we need to ask and that is whether any relevant defenses apply defense is working much the same way that criminal defenses do first the prosecution shows that all the elements of the crime are present and then the defendant shows if there's a defense which excuses them from liability in negligence the plaintiff must first show that all the elements of negligence that we've discussed previously are present and if they can do that then the defendant can show if there are any defenses which excused them from liability we're going to look at a few defenses the first is what we call voluntary assumption of risk this defense is no longer used very much but understanding it is the gateway to a number of other defenses which were more commonly used such as the defenses of obvious risk inherent risk defenses relating to participation in sports and recreational activities and the partial defense called contributory negligence where the defendant says well yes I was negligent but your own negligence by the harm whole lot worse what all of these have in common is the notion of a person knowing that there are risks but taking on themselves some level of responsibility for the risk that they're putting themselves to the second family of Defense's I want to talk about other good samaratin defenses where people are either trying hard to do good things or where people are responding to emergencies and therefore may not have enough time to properly assess and manage risks the third type of defense I want to talk about is the application of an exclusion clause where a party usually in a contract includes a term which excludes them from barring any liability for negligence so let's get stuck into it starting with voluntary assumption of risk you'll sometimes see this defense referred to as the volunteer defense which comes from the latin phrase volenti non fit injuria which means no harm is done to a winning person the idea of this defense in its earlier form were in which it was still used regularly was that the plaintiff could not claim damages in relation to a risk of harm arising from negligence provided four conditions were met first if the plaintiff was fully aware of the risk that usually meant that an intoxicated person for instance could not be said to be a volunteer because one well-known effective alcohol is that it changes our perception of risk second the plaintiff has to fully apprehend the nature and extent of the risk I'm done if I can see any difference between this and being fully aware of the risk but it's always listed separately third the plaintiffs acceptance of the risk must be voluntary this means that if they're under any sort of duty or compulsion to accept the risk they're not a volunteer so for instance in Agua and taylor the plaintiff was a firefighter injured while fighting a fire started by the negligence of the defendant Lord bridge of Howick in the House of Lords said that to regard the firefighter as being a volunteer would be utterly repugnant to our contemporary notions of justice finally the plaintiff must accept the whole risk so for instance in winter against the Commonwealth the plaintiff was a motorcyclist leading police on a high-speed pursuit a police officer placed their car across the road in a roadblock position but then it seems that as the motorcycle tried to dodge the roadblock the officer moved the car forward causing it to collide with the bike the court found that the plaintiff had accepted the risks of speeding on a motorcycle and accepted the risks of leading police on a high-speed chase and dodging a roadblock but he had not accepted the risk of the police car moving forward and colliding with him he had therefore not accepted the whole risk however if a plaintiff is fully aware of the risk our friends the nature and extent of the risk and accepts the whole risk voluntarily well then there can be no liability this whole area though has changed dramatically as a result of the IMP report and the introduction of the civil liability act for starters and this was mentioned a little earlier sections 13 through 16 of the Act give us two new concepts obvious risks and inherent risks an obvious risk is a risk that in the circumstances would be obvious to a reasonable person in the position of the plaintiff the idea is that people have a responsibility as they move about in the world to keep their eyes open for potential hazards and to avoid if they can coming to any harm in gantu's against the Hawkesbury City Council the plaintiff sued after she tripped on the uneven verge between a footpath and the grass next to the footpath Justice Kalinin said there was no concealment of the difference in height it was plain to be seen the world is not a level playing field it is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along no special vigilance is required for this section 14 of the Act says that if a defense of voluntary assumption of risk is raised for an obvious risk then the plaintiff is assumed to be aware of the obvious risk so if there's an obvious risk the starting point for the court will be to assume the plaintiff was aware of the risk and to assume that the plaintiff took their chances this is different from the common law situation where the defendant would have to show that the plaintiff was fully aware of the risk apprehends the nature and extent of the risk and accepted the whole risk voluntarily finally section 15 of the Act says that there is no duty to warn of an obvious risk this makes sense because if a risk is obvious of warnings not necessary so the defendant can still be liable for harm caused by an obvious risk but the starting point for the court will be that the plaintiff was aware of that risk and took their chances an inherent risk takes this line of thinking one step further this is all in section 16 of the Act an inherent risk is a risk which cannot be avoided by the exercise of reasonable care or skill the only duty which there can be in relation to an inherent risk is a duty to warn people about that risk and this makes sense because our basic duty of care is to do those things which a reasonable person will do in order to avoid the harm well if an inheritance can't be avoided then we hardly can have a duty to avoid it right in the cases the courts themselves seem confused obvious risks and inherent risks perhaps the best type of example of an inherent risk comes from the medical worker certain medical procedures carry inherent risks of harm the medical practitioner has a duty to do their best to undertake the operation and they have a duty to warn the person of the risks and we'll talk more about doctors shortly but if the person is warned about the inherent risk and they go ahead with the procedure then they really are choosing to take their chances section 19 of the Act then says that there is no liability for the materialization of an obvious risk of a dangerous recreational activity this is another one of those provisions that was intended to relieve the insurance burden on sporting clubs however this provision hasn't stood up to well in practice we've already talked a couple of times about state of Queensland and Kellee whether plaintiff recovered an award despite ignoring two warning signs and running down sangeun's into water of an unknown death but then there's widely and ghazal and in which the plaintiff recovered an award after she fell out of ten pin bowling alley she stepped over the foul line and onto the slippery lane surface this was still not held to be an obvious risk in Pollard and trued the plaintiff recovered an award after being hit in the eye by a golf ball while playing golf and after a warning had been shouted to him that the ball had been hit in his direction all of those seem to me look pretty obvious risks but according to the courts none of them was apparently obvious enough in truth though the real answer to all of this comes from the defense called contributory negligence the idea of contributory negligence is that if person acts in a way that a reasonable person would not act and if by doing so they contribute to the harms they suffered well then they cannot get damages for that part of the harm which they themselves caused contributory negligence has been around for many years since at least the early 19th century in contract law so as a concept this is actually older than the tort of negligence itself in Australia the modern authority is a 1999 case called Astley and oestrus but that case is a super boring case about trusts and solicitors I'd like to explain contributory negligence by going back to Windley and ghazal and which i mentioned a few moments ago this is the one where the plaintiff tripped after stepping across the foul line at a bowling alley now look at the facts from the perspective of the court on the one hand everyone has ever been to bowling knows that you don't step over the foul line because the boards are kept very slippery in order to let the game be played bowling alleys have signs up warning of this but it's also just a rule of the game to make the game fair that you have to deliver the ball before the foul line on the other hand though this injury was caused during what was called a glow-in-the-dark bowling session where the lights were all team so the foul line itself and the warning signs were less visible it seems like both sides are at fault really and that's what the court found so the court found that the bowling alley was responsible for 60% of the harm and the plaintiff was responsible for 40% of her own huh so the damages that she got were only 60 percent of the total of water damages under section 24 of the Civil Liability Act the court can actually decide that the contributory negligence is responsible for up to 100% of the harm so a defense of contributory negligence can in effect defeat the claim completely okay times starting to press on us now let's move on to the second family of defenses which relate generally to people doing good things we're going to move through this one fairly quickly first and foremost one aspect of Queensland negligence law which is truly terrible is that there is no protection for an ordinary person who out of sheer human decency stops to render first aid to another person in distress listen to that again carefully there is no general Good Samaritan Law in Queensland and if you stop and help someone and it doesn't go well you have no protection other states provide this protection Queensland is not ridiculous section 16 of the Law Reform Act 1995 does provide protection for medical practitioners and nurses who stopped to help at a scene provided they do so without seeking of feeling although realistically these professionals usually have public liability insurance anyway section 27 of the Civil Liability Act which I mentioned back towards the start of this video it prescribes a range of organizations whose purpose is to enhance Public Safety those organizations are protected from liability when they provide first-day or similar assistance in an emergency so long as they provide that aid in good faith and without reckless disregard for the safety of the person in distress or anybody else section 26 of the Act extends this protection to individuals who are performing duties for those prescribed organizations so if a since John's volunteer provides first aid at a footy game thus in John's organization as a whole is protected and the individual first aider is protection protected but the good-hearted people that just help have no protection again ridiculous finally section 39 protects volunteers doing community work organized by a community organization from liability provided their actions are undertaken in good faith they're complying with the relevant instructions of the organization and provided they are not intoxicated provided that the common conduct is not criminal and noting that they're not protected for activities where insurance is required so a dad who trucks around the boundary line of an under 13 fully game as the boundary umpire and who troops over a spectator and harms them will be protected from liability somehow that activity is worthy of protection but the activity of stopping to help a stranger who is injured is apparently not worthy of protection I'll say one more time it's ridiculous the third type of defense you may have already learned about in tracking for our purposes today I'll simply say that where two people make a contract they are entitled to including that contract and exclusion clause whereby one or both parties expressly state that they will not hold the other party responsible for any harm caused by negligence during the delivery of the contract it's amazing how many standard consumer contracts include this clause where you as the consumer basically promise that the service provider can be as negligent as they like without incurring any liability it's fair to say though that the courts don't like these provisions for one thing the clause we usually have to be brought to the attention of the party who's promising not to sue and second the courts will read the provision contre proffer Wrentham which means they'll read it strictly against the interests of the persons seeking to rely on that provision so any exclusion clause will have to be very clearly dropped and very clearly pointed out to the other party okay so now we're at the end of our discussion of basic negligence matters we know how to establish a duty of care we know how to work out whether that g-d of care has been breached we know how to examine causation we know what sort of damage can be compensated and now we know about defenses in particular contributory negligence in terms of a basic understanding of negligence law we now have done but before the video finishes there are a couple more things to look at next time we'll look at special negligence situations situations in which the law recognizes that the normal stock standard rules of negligence must be modified by now you will have realized that the law of negligence can reach into virtually any area of human conduct so it should come as no surprise that there are dozens and dozens and dozens of very specific negligence situations talking about each of them is well and thoroughly outside the scope of the two-hour overview I do however want to mention just a few which seem to come up very regularly in undergraduate courses those those are the duties of statutory authorities the duties of professionals the issue of a failed contraception which is known as wrongful birth and negligent harm caused to unborn children first and foremost statutory or now statutory authorities such as government departments and local councils they're in a very difficult situation when it comes to negligence law for one thing they have set budgets and they have to decide how to spend those budgets money they spend on one thing they can't spend on another a second they are responsible to and must obey the elected politicians who sit above them traditionally going back centuries this area has mostly played out in terms of roadways and highways consider the position of a Regional Council in Australia inevitably they will have to control thousands of kilometers of roadway to keep all of those roads up to an ideal standard would be in effect impossible so they prioritize their resources according to things like the amount of traffic carried by a particular Road the way the law respondent to these duties was to develop two concepts which we call nonfeasance and misfeasance in this context nonfeasance occurs when the statutory authority doesn't do something that they could do for instance they might lay bitumen on a dirt road which would make it safer if they don't that's nonfeasance misfeasance occurs where the statutory authority does something but they do it negligently at the common law a plaintiff could sue a statutory authority in relation to misfeasance but not in relation to non business so you can sue if they've done something wrong but not if they merely omitted to do something that they could have done an example Michael in Hill against the Commissioner for main roads a roadway was becoming damaged due to draining issues the council kept patching up the road but they knew the problem would be ongoing and one effect would be what's called shoving on the road surface which is a disturbance in the bitumen causing ripples this shoving occurred and the plaintiff came off his motorcycle when he hit the ripples the government argued that this was non-business because while they could have resurfaced the road and fixed the drainage issues there were under no specific obligation to do so however the court found that merely patching the road instead fixing it properly meant that the government had in fact repaired the road negligently so this was miss pheasants and they were liable seriously the distinction between miss pheasants and nonfeasance does a lot of people's heads I promise it's not that complicated if the government agency has chosen not to do something it's non pheasants if the government agency has done something but done it negligently it's misfeasance the Civil Liability Act has added some additional considerations which are found in sections 35 to 37 they're really important one is section 37 which says that a public authority is not liable for any failure to properly inspect the roads nor for any failure to keep the roads in good repair unless they have actual knowledge of a hazard so if it rains heavily at a dirty great pothole opens up on a country road a day or so later the council can't be liable for the fact that it hasn't yet inspected or fixed that pothole however if someone reports the pothole to them they lose that protection and their response to the report must not be an engine okay next let's talk about the liability of professionals already touched on this earlier our normal negligence duty of care is based on the risks which an ordinary person would have foreseen well I don't know about you but when I go to the doctor I want them to be a little more skilled and capable than an ordinary person an ordinary person might not know whether that lump is something to worry about but a doctor should and so it makes sense that professionals including lawyers in relation to their profession face a higher duty of care than normal people just going about their business the common law position was that a professional had to exercise the standard of care which would be exercised by ordinarily skilled professional within that particular skill training that rule is essentially still in place although it's been clarified slightly by section 22 of the Civil Liability Act which protects the professional if they acted in a way that at the time the service was provided was widely accepted by peer professional opinion by a significant number of spected practitioners in the field as competent professional practice provided that that professional opinion was not irrational or contrary to a written law the section also makes it clear that there doesn't need to be universal agreement within the profession provided a significant number of peers would consider the conduct to be competent professional practice the professional will be protected however there is an additional duty one which we have already touched on this duty falls on medical practitioners according to the statute but in reality it's likely to be professional practice among all professionals that is the duty to warn under section 21 of the Civil Liability Act doctors have both a proactive and a reactive duty to give patients both a the information which a reasonable person in the patient's position would want regarding the risks of a medical procedure that's the private computing and also be the information which the patient themselves asked for regarding the procedure that's the reactive Jeanie we're going to stay largely with this medical theme for a few more moments the next issue I want to discuss is the idea of harm to a baby in the womb now traditionally a baby in the womb was not as yet a legal person an unborn baby had neither right store responsibilities but then the loss gradually started to change in this regard perhaps the first step was the recognition in succession law that a person making a will could leave things to an unborn child who was on the way but not yet born at the time the world was made the idea that the unborn could have rights has also made its way into negligent law essentially the law here is pretty simple if a person can reasonably foresee that their conduct may cause harm to an unborn child then they have a duty of care to do what is reasonably practicable to prevent that harm in other words the same duty of care exists with respect to an unborn child as exists in relation to any other living person this includes at least in some circumstances a duty of care from a mother to the child she's carrying however the child cannot actually sue for any harm they sustained as a result of that negligence until the child is actually born in practice of course the harm is often not detected until after the child is born in any of it while we're thinking of the unborn there's one last issue which honestly is really rare the universities persist in lecturing on this issue and that's the issue of wrongful birth this occurs when a medical practitioner conducts a sterilization procedure which fails and there's a pregnancy after the sterilization in 2003 in a case called cataract and milky war the High Court found that in such circumstances the doctor could be called on to pay all the costs of raising the child as these costs would not otherwise have been incurred by the parents as you can probably imagine governments weren't too keen on allowing that decision to stand so now sections 49 capital a and forty-nine capital B of the Civil Liability Act state that if there is a negligently performed sterilization or negligent advice about contraception the court cannot award damages for economic loss arising out of the costs ordinarily associated with rearing or maintaining a child wrongful birth should not be confused with another negligent concept and even more rare concept called wrongful life if concept arose from the remarkable case of Harriton and Stevens in which the plaintiff who had been born severely disabled and his father was suing on her behalf sued the doctor who had failed to diagnose her mother's rubella infection although mother was pregnant essentially the argument was that by failing to make the diagnosis the mother had missed the opportunity to terminate the pregnancy and the child had been committed to a lifetime of pain discomfort and 24/7 reliance on others this was a crushingly difficult case just as Kalinin described it as a question that has exercised the minds of philosophers theologians scientists legislators and lawyers throughout the world in the end the Court determined that there no cause of action for wrongful life in Australia but the leading judgment that of justice Kellerman is dripping with profound regret that the result would leave the plaintiff catastrophically disabled and unable to obtain compensation on that rather sad note we come to the end of our story about negligence but because I like you all so much I do have a little bit of really useful additional content to add what I would like to do in the last few minutes of this video is to go through my negligence flowchart which takes all of the concepts I've discussed in this lecture and puts them into a logical flowing form which should allow you to tackle pretty much any negligence question that a university can throw you so here's the flowchart let's walk through it in a moment now the flowchart is only going to be useful to you if you already have some idea about the concepts of negligence law this really doesn't teach you anything it just sets it all that in what I hope is one clear logical summary so in any negligence situation the first thing we have to establish is whether there is a duty of care if there's no duty of care there can be no liability in negligence if you don't have a duty then obviously you can't be said to a file to meet that G we asked three key questions to determine if there's a G we asked would an ordinary person in the position of the plaintiff reasonably foresee that their action may cause the type of harm which is being claimed this is an objective test we're not asking if they themselves force for it but if a reasonable person would have to foresee the harm the harm doesn't have to be likely it just has to be more than far-fetched or fanciful if an ordinary person would not have foreseen the harm or if the harm was far-fetched or fanciful then there's no duty and no liability in negligence if the harm can be foreseen then we ask whether the plaintiff so the person who's harmed was sufficiently proximate to the defendant either logically or physically now remember this concept of proximity was attacked by the High Court at one stage but then they started using terms like indeterminate liability which were really just proximity by another word if the victim is so far away either in distance or because a bunch of dominoes have to fall between the initial action and the harm to them then there is no duty of care and therefore no liability finally we ask if there are fairness based reasons why there should be no journey of care for instance where the plaintiff and the defendant involved in a joint criminal enterprise was the plaintiff intoxicated and how did that affect the duty is the defendant a barrister or solicitor advocate being sued for their performance in court is the defendant of public authority where the negligence related to their public duties was the defendant under some other duty which means it would be unfair to also impose a duty of care upon if the answer to any of these is yes then there'll be no duty of care and therefore no liability and no kin negligence let's say there is a duty though the risk of harm was foreseeable the plaintiff was sufficiently proximate and there was no fairness reason not to impose a duty of care in that case we move to our second key question and ask what would a reasonable person do with respect to that duty of care again though we're asking about a reasonable person such as an objective test but it's an objective test with a difference the person is both reasonably experienced and not under a disability so in experience or the disability of a defendant is irrelevant they'll be expected to discharge the duty in the same way as anyone else children however are assessed at the standard of an ordinary child of that age and professionals are assessed according to ordinary professional practice to work out what that ordinary person would do we apply the four elements of the calculus of negligence we ask how probable the harm was generally speaking the higher the probability of harm the more the defendant should do to avoid it we ask how serious the foreseeable harm was generally speaking the more serious to harm the more that should be done to avoid it we then asked how practicable are the control measures which could control the risk how expensive are they and do they make common sense in the overall context of the situation the overall situation includes the whole upon the defendant and not just the duty isolated to the specific place or the specific incident generally speaking a defendant will be expected to do that which is practicable but they will not be expected to do that which is not practicable finally we ask about the social utility of the activity which produces the risk risks which produced valuable social outcomes are more tolerable than those which produce only private outcomes or negative social outcomes the combination of those four factors with none being more important than the other will result in a level of duty which must be met we then ask whether the defendant did those things which a reasonable person would have done in order to discharge the duty that doesn't mean they had to do everything logically possible and it also doesn't mean that they're in trouble because they chose one possible method to deal with the risk that there were other possible methods provided they responded to the risk in a reasonable way then there's no liability for the harm which was caused if however they did not do what a reasonable person would have done then we have to ask what harm was caused if it was physical harm then the harm will need to be properly diagnosed and it'll be assessed in Queensland on a scale from 1 to 100 if it's harm to property then the harm will be calculated on the basis of the loss of value of the item or the cost of repairs if it's mental harm then the mental harm must be a psychiatric or psychological injury not just an emotional reaction or a sense of discomfort the psychiatric or psychological injury will then be assessed on the 1 to 100 scale just like physical injury once we have clearly identified the harm then we must ask whether the breach of duty cause the harm or more clearly was the harm caused by the materialization of a risk where the breach of duty was a failure to take reasonable steps to control that risk to do this we start out with the but-for test and ask whether the breach of duty was a necessary condition of the home if the harm would have happened anyway a breach of duty or not then the breach did not cause the harm and there will be no liability the test is more complicated there are multiple causes or when there's some sort of intervening event after the breach of duty but before the actual harm at the end of the day the court applies common sense when making its findings of fact in these situations bear in mind though the eggshell skull principle if the victim has some particular vulnerability so that the risk harms them more badly than it might have for humm someone else that vulnerability is not considered to be a contributing cause of the harm if the harm both seemed to be logically connected to the breach the final step is to consider whether the damage is too remote if there are too many steps between the breach and the harm so many dominoes have to fall then the harm will not be considered to of course the breach let's say it is that well now we have a duty of care the duty of care has been breached there's a harm and the harm has been caused by the breach the basic elements of a case in negligence are therefore in place next we ask whether there is a defense available to the defendant first did the plaintiff voluntarily accept the risk bear in mind that if the risk was an obvious risk they may be assumed to a voluntarily accepted er if they did then there's no liability second was the risk and inherent risk one that could not have been avoided if it was then there's no liability provided an appropriate warning was given third was the risk and obvious risk of a recreational activity if it was then there's no liability fourth was the defendant a protected person or organization delivering emergency medical care if so there will be no liability unless they were grossly negligent or they acted in bad faith fifth was the defendant a food donor organization if they were then their liability is restricted so long as they provided the right information about the safe handling and consumption of the food sixth was the defendant of volunteer and community organization if so there will be no liability for anything they do in good faith as part of that organization and finally was liability excluded by any contractual provision bear in mind that if there was such a provision it be lurking in the fine print and it will be construed contra pro-freedom or strictly against the interests of the party relying on it if none of those defenses apply then the very final thing we have to consider is whether there was contributory negligence in other words did the plaintiff do anything to contribute to their own harm if there is contributory negligence then the court will apportion liability between the parties or to put it another way the award to the plaintiff will be reduced by whatever percentage the court decides actually relates to their liability if however there is a duty of care the duty of care has been breached there is harm the harm was caused by the breach no defense applies and there's no contributory negligence then the defendant will be completely liable okay gang at this point let's stop the clock that's negligence it's pretty simple in concept isn't it do what's reasonable to stop your actions from harming others or compensate them for the harm out of that simple statement though comes a whole area of law now as ever you do need to bear in mind that a two hour law course is no substitute for a whole term study this is an introduction or a revision negligence is one of those areas of law which has a whole lot of tricky little twists and turns and there's just no substitute for doing the hard yards I do hope though that this video helps you to get started best of luck [Music]

Channel: Anthony Marinac

Views: 13,980

Rating: 4.9197993 out of 5

Keywords: duty of care, Civil Liability Act, breach of duty, reasonable foreseeability, novus actus interveniens, obvious risk

Id: 70ov_q5OAVk

Length: 124min 5sec (7445 seconds)

Published: Fri Feb 28 2020