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S481b wrongs act a person is not negligent in failing

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- s.48(1)(b) Wrongs Act: A person is not negligent in failing to take precautions against a risk of harm unless (b) the risk was not insignificant . For the purposes of this section, risks are described in s.48(3) Wrongs Act as either insignificant, significant, or in between. As long as the risk is not insignificant, using common sense and the understanding that insignificant risks include those that are far fetched and/or fanciful, this section is made out. Just use common sense to make a decision. A foreseeable risk that is very likely to occur might be considered an insignificant risk in which the D can reasonably ignore. (Bolton v Stone 1951) s. 48 (1)(c) Wrongs Act: A person is not negligent in failing to take precautions against a risk of harm unless (c) in the circumstances, a reasonable person in the defendant’s position would have taken those precautions. This is an objective standard, and mirrors the common law. Has two parts: 1. What is a reasonable person? (Not always an issue) 2. Did D respond to the harm in a way that a reasonable person would have (calculus of negligence) s 48 (2) Reasonable person: Some factors taken into consideration by the court in determining the standard of care: * Age of the defendan t: A child may be held to a lower standard than that of a reasonable adult (McHale v Watson- 12yo boy threw sharpened rod, damaged girl’s eye; held to lower standar d). A child could not be expected
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to have the same foresight, prudence, or experience of an adult. o It is unresolved whether the court will take the child’s intelligence, maturity, and experience into account. Kitto J: They should not be taken into account, just like they are not taken into account for adults. The relevant standard is that of a reasonable child of the same age. Owen J: They should be taken into account, you should consider the child’s foresight and experience. - Physical Disability: It is rare that a situation will arise that a physical impairment will be relevant to the actual activity. If someone undertakes an activity that they physically cannot do- i.e. a blind person driving a car, they will be negligent as soon as the activity begins, even before anyone is hurt. The same applies if someone has warning that they cannot do something but do it anyway- i.e. they become dizzy and their eyes blur, but they continue to drive rather than pull over. The issues needed to be considered are: o The P’s knowledge: Did the P know the person was impaired, but continued to allow them to do the activity? o The choices open to the D: Did D have warning? Was it the d’s choice to do the activity? Was it an emergency? o The choices open to the P: Was the P able to escape? Was there anything the P could do to avoid the harm? (for example, a surgery patient cannot escape from a shaking doctor).
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