Reasonable care in all the circumstances ie what

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Unformatted text preview: ssion Agar v Hyde • “Non-delegable” duty of care exists between: Employer/employee Hospital/patient School authorities/students Common walls Dangerous substances Landlord and Tenant Ask: • What is the standard of care required? “reasonable care in all the circumstances” ie: what would the ordinary, reasonable and prudent person would have done in the same circumstances? Case: Northern Sandblasting Pty Ltd v Harris See Latimer at ¶4-091 See Latimer at ¶4-100 and ¶4-110 27 (2) Is there a breach of the duty of care? Civil Liability Act 2002 (NSW) • 28 (2) Is there a breach of the duty of care? • Balance the extent of the harm (ie the size and probability of harm) against the costs of taking preventative measures Section 5B(1) Ask: • Reflected in legislation - is the risk foreseeable? - is the risk not insignificant? - would a reasonable person in defendant’s person have taken precautions? See Latimer at ¶4-095 29 30 (2) Is there a breach of the duty of care? Statute/Legislation: (2) Is there a breach of the duty of care? Factors in s 5B(2): • Probability that the harm would occur if care were not taken: s 5B(2)(a) • Under s5B(1)(c) of the Civil Liability Act 2002 (NSW), whether a breach of duty has occurred is determined by asking: • Likely seriousness of the harm s5B(2)(b) ‘Would a reasonable person in the person’s position have taken precautions? ‘ • Burden of taking precautions to avoid the risk of harm s 5B(2)(c) To answer this question a court can consider the factors in s 5B(2) • Social utility of the activity that creates the risk of harm s 5B(2)(d) See Latimer at ¶4-121 31 31 Probability of harm 32 Seriousness of harm Probability that the harm would occur if care were Likely seriousness of the harm (s 5B(2)(b)) not taken (s 5B(2)(a)) Case: Paris v Stepney Borough Council See Latimer at ¶4-100 Case: Bolton v Stone See Latimer at ¶4-100 33 Burden of taking precautions 34 Social utility of activity Burden of taking precautions to avoid the risk of harm: (s 5B(2)(c)) Social utility of the activity that creates the risk of harm (s 5B(2)(d)) Cases: Romeo v Conservation Commission, Cole v South Tweed Heads Rugby Football Club Case: Agar v Hyde See Latimer at ¶4-092 See Latimer at ¶4-090 35 36 Standard of Care and Professionals (3) Causation • Must be some causal connection between breach of duty of care and damage suffered • Standard of care for professionals: s 5O of Civil Liability Act 2002 (NSW) • To be discussed next week Did the defendant’s conduct cause the plaintiff’s injury? • “But for” test can be used to work out causation ie: without the defendant’s breach, the damage would not have occurred 37 37 38 Causation and Civil Liability Act 2002 (NSW) (3) Causation • Cases: Lindeman Ltd v Colvin Cork v Kirby MacLean Ltd Yates v Jones • Need to prove: Section 5D(1) (a): Negligence was a necessary condition (result) of the occurrence of the harm (‘factual causation’) See Latim...
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