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Conduct involved a risk of injury to the plaintiff or

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conduct involved a risk of injury to the plaintiff or class of persons including the plaintiff) (c) In the circumstances, a reasonable person in the person’s position would have taken those precautions.’ o I.e Decide what a reasonable person would do in the situation knowing of the risk (ie standard of care (‘soc’)), then compare that with what the defendant actually did - if they are different then there has been a breach - Question of fact for jury o [if a reasonable person would decide to do nothing and defendant did nothing = there is no difference and therefore no breach] S 48(3) Wrongs Act 1958 (Vic) – explains ‘insignificant risk’ (3) For the purposes of sub-section (1)(b) – (a) Insignificant risks include, but are not limited to, risks that are far-fetched or fanciful ; and (b) Risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks. Torts Lecture Notes 11
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Can use case law on meaning of ‘ far-fetched and fanciful’ in interpreting s 48(3), Examples: o Roe v Minister of Health not reasonably foreseeable o Wyong Shire Council - reasonably foreseeable . o H v Royal Alexander Hospital - 1 wasn’t and 1 was Precise manner in which injury occurs does not have to be reasonably foreseeable – O’Dwyer Don’t need to foresee particular injury 3 Stages of Inquiry Into Reasonable Foreseeability: Minister Administering The Environmental Planning And Assessment Act 1979 V San Sebastian Pty Ltd: o DUTY: Proof that defendant and plaintiff so placed in relation to each other that it is reasonably foreseeable as a possibility that careless conduct of any kind by def may result in damage of some kind to plaintiff or plaintiff’s property ( Chapman v Hearse). o BREACH: (Standard): Proof that it was reasonably foreseeable as a possibility that the kind of carelessness charged against def might cause damage of some kind to plaintiff’s person or property. Not interested precisely what injury happened but interested in what the D did do. Failed to act as a reasonable person in the situation. What is the standard of care? How do we know what a reasonable person would have done in the situation? What is the reasonable person- objective standard, some subjective elements taken into account? Is it a particular kind of risk. Reasonably foreseeable risk. Risk has to be foreseeable and ‘not insignificant’ (s 48 1(a) and (b)). What would a rp in the d position have done? Wagon Mound (No 2) Wyong Shire Council (also need to prove was means of avoiding the possibility and that would have been adopted by a reasonable defendant) o REMOTENESS: Proof that the kind of damage suffered by the plaintiff was foreseeable as a possible outcome of the kind of carelessness charged against the def Mt Isa Mines Ltd v Pusey (e) Calculus of Standard (Negligence) What does the ‘reasonable person’ do in the light of a reasonably foreseeable risk?
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