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I was d a reasonable person if in issue ii the

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i. Was D a reasonable person (if in issue?) ii. The calculus of negligence: Was the defendant’s response to that risk reasonable? (s 48(2) Wrongs Act) PRELIMINARY ENQUIRIES PRECEDENT OF PAST CASES IN LAW, NOT IN FACT When determining the reasonable standard of care a court is only bound by statements of law made in previous cases, not statements of fact. In each case it is important to determine on the facts own merits, what a reasonable person would have done. The previous cases will only be persuasive, so if you have similar facts, you will not be bound by the standard of that case, you must decide on you facts Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 (CB 279) HOL held that the precedent depended on not binding, because the reasonable standard must be determined by the facts of the case.
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(Whether a duty a duty of reasonable care is owed is a question of law… the question whether on the facts of a case there was a failure to take reasonable care was a question for the jury. In practical application there is not and could not be complete uniformity of standard. One jury may attribute less, etc and is difficult to draw the line,) NEGLIGENT CONDUCT IS: “the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would do.” (Blythe v Birminhgman Waterworks Co) WHAT IS FORSEEABLE AND NOT INSIGNIFICANT? Wyong Shire Council v Shirt: ( the water skier in shallow water case) A risk which is not far-fetched or fanciful is real and therefore foreseeable However legislation reforms increases the probability of farm to not ‘insignificant.’ The onus is on the plaintiff to prove that, on the balance of probabilities, the defendant’s negligence caused his or her injuries. Proof by inference is acceptable proof. 52. Burden of proof In determining liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation. 1. Would a reasonable person in the Defendant’s position have forseen that their conduct posed a risk of injury to the Plaintiff? REMEMBER: The defendant need only take precautions against foreseeable risks Similar to reasonably forseeability in duty stage, however here we are concerned with the specific risk which eventuated. (a) Establish it was reasonably foreseeable that the risk of harm would have eventuated due to D’s act: -s.48(1)(a) Wrongs Act 1958 (Vic): A person is not negligent in failing to take precautions against a risk of harm unless (a) the risk was foreseeable (the risk which the person knew or ought to have known). In order for there to be a breach of
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duty, the harm that eventuated must have been reasonably foreseeable (Wyong Shire Council v Shirt- man injured after skiing in shallow wate r). The defendant does not have to take precautions against risks that are not reasonably foreseeable. The test here is
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i Was D a reasonable person if in issue ii The calculus of...

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