Not only how likely is it but also how badly will it

Info icon This preview shows pages 13–15. Sign up to view the full content.

View Full Document Right Arrow Icon
likely) but the gravity of the injury is relevant. Not only how likely is it but also how badly will it be if P is hurt? The probability of such an event was very small, but its consequences were very serious, his employers, knowing of his disability, should have taken extra care to provide goggles for him (breached the duty of care). The more serious the possible damage, the greater the precautions that should be taken . Justice McDermit: duty of care is owed to all employees but standard of care is not the same for all. If one employee is effected greater by a particular risk then greater care should be taken. Characteristics of the Plaintiff are taken into account. Boss is liable, P won. o Brkovic v Clough – defendant didn’t know (iii) Practicality of Avoiding Risk [S 48(2)(c)] Burden of taking precautions to avoid the risk of harm (at common law = practicability (expense and inconvenience) of precautions to eliminate or reduce the risk). Are there reasonable precautions and what are they? Up to P to discuss what the D should have done. Weighing it up. Essential the precaution suggested actually makes a difference (must stop or decrease the chance of the risk). May have no precautions (activity may be so Torts Lecture Notes 13
Image of page 13

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full Document Right Arrow Icon
dangerous it just shouldn’t be done at all). Jury should figure out what the precaution should have been, but if there’s a doubt and P doesn’t come up with it then they will lose. The precaution must eliminate or reduce the risk - if it would have no effect, then no breach even if defendant did nothing Onus on plaintiff to show were reasonable precautions available Examples: o Neill’s case : (Truck) P cleaned out tankers after use, slipped while doing so and was injured. P sued. Didn’t say what they could’ve done. Rubber mats, railing on the side. Wasn’t proven those could be put in a food transport machine. Burden is on the plaintiff. o Precaution that is dangerous as well: o Caledonian Collieries Ltd v Speirs : P was killed at a level crossing, P crossed the tracks after the train had passed, train went backwards and killed the man. What could have been done to stop that from happening? Put catchpoints on the line but if train tries to go back it is stopped. Widow argued they should’ve put in catch points. If it goes back and hits a catch point and is derails could injure passengers etc (carries own risk). Catchpoints r cheap and easy to install but run a big risk. What should they have done? Would it be reasonable to install them? On a hill, if train escaped likely it would kill someone. How often trains went past the crossing (two times). Have to slow down before going over cross points. Court held: yes should have catch points. Foreseeable- busy rd. significant probability it could happen. Yes they were liable. Precaution is quick cheap and easy but does have a risk too but weighed again definite harm is worth it. Dissent: derailing a train is extreme and p didn’t show it was necessary here. After accident, Colliery installed catch points proving they were negligent, admission of guilt? Just because they changed precaution straight away shows its an easy
Image of page 14
Image of page 15
This is the end of the preview. Sign up to access the rest of the document.

{[ snackBarMessage ]}

What students are saying

  • Left Quote Icon

    As a current student on this bumpy collegiate pathway, I stumbled upon Course Hero, where I can find study resources for nearly all my courses, get online help from tutors 24/7, and even share my old projects, papers, and lecture notes with other students.

    Student Picture

    Kiran Temple University Fox School of Business ‘17, Course Hero Intern

  • Left Quote Icon

    I cannot even describe how much Course Hero helped me this summer. It’s truly become something I can always rely on and help me. In the end, I was not only able to survive summer classes, but I was able to thrive thanks to Course Hero.

    Student Picture

    Dana University of Pennsylvania ‘17, Course Hero Intern

  • Left Quote Icon

    The ability to access any university’s resources through Course Hero proved invaluable in my case. I was behind on Tulane coursework and actually used UCLA’s materials to help me move forward and get everything together on time.

    Student Picture

    Jill Tulane University ‘16, Course Hero Intern