Was the risk a significant reasonably foreseeable

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WAS THE RISK A SIGNIFICANT (reasonably foreseeable) RISK? Section 48(1)(b): A person is not negligent unless – the risk was not insignificant . Section 48(3)(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. CALCULUS OF NEGLIGENCE Section 48(1)(c): A person is not negligent in unless – In the circumstances , a reasonable person in the person’s position would have take those precautions. - What did D do? What would a reasonable person do? If different = breech. 25 Wyong Shire Council (HC) FACTS: P was waterskiing in a lake run by the council. Council had dredged a channel deep enough for skiers to ski and had put up signs that could be interpreted in two ways. P misinterpreted the signs and became quadriplegic. HELD: Negligent. Even if the risk is quite unlikely it will be reasonably foreseeable if it is possible /not far fetched or fanciful .
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Section 48(2)(a): Need to consider the following circumstances – probability that harm would occur if care were not taken; b) the likely seriousness of the harm; c) the burden of taking precautions to avoid the risk of harm; d) the social utility of the activity that creates the risk of harm. 1. Probability That Harm Would Occur if Care Were Not Taken : 48(2)(a) into account voluntary use of drugs or alcohol and the degree of intoxication ; and whether the P was engaged in an illegal activity . Section 49: Need to consider the burden of taking precautions. E.g. would have to fence 8km of beach. Bolton v Stone FACTS: P lived near a cricket ground. A cricket ball went over the fence and hit her head. Ball had been hit over fence b/w 3 and 6 times in 30 years and had never hit anyone before. Would sued. HELD: No breech. Risk was foreseeable and it wasn’t an insignificant risk BUT a reasonable person would respond by doing nothing. (Only thing to do would be to raise fences and move pitch) Romeo v Conservation Commission of the Northern Territory FACTS: 15 yr old drunk girl fell 61/2 metres off a cliff and became paralysed. The area was one of natural beauty near an unsealed road leading to a car park surrounded by a log fence. The girl had been there before. She sued the conservation people responsible for the beech front for not fencing the area better. The girl had no memory of the incident. HELD: 5/2 No breech due to soft factors (place of natural beauty/need to spend money on other things). BUT when assessing probability must consider the diversity of people that may be there including drunkenness. Paris v Stepney Borough Council FACTS: Employer knew his employee mechanic had only one eye. Employer/employee DOC. Mechanic went under a car and some metal fell into his good eye and he was blinded. He sued his boss saying that he should’ve provided goggle even though wearing goggles was not a usual practice. UK COA said no negligence – he was no more likely to be injured than a 2 eyed person.
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