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Agar v Hyde • “Non-delegable” duty of care exists between:
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 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
37 38 Causation and
Civil Liability Act 2002 (NSW) (3) Causation
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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