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O wyong shire council v shirt 1980 p waterskiing on a

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o Wyong Shire Council v Shirt (1980): P waterskiing on a lake fell and injured himself. Was waterskiing on 3 ½ feet deep water. The council dug a channel in the lake for water-skiers- 2 signs saying deep water (but where?)). P Interpreted it to mean the deep water was outside the signs (however was actually inside the signs). P sued D saying D was negligent in putting up misleading signs. Court said: Yes the council is negligent. Was risk of injury reasonably foreseeable? pg 214. Foreseeable means it might happen, not unlikely to happen, not saying it will happen. Not probability. Not how they got hurt, just that they were hurt. Held : It was reasonably foreseeable . Common law statement- balance out factors. Degree of probability and occurrence (likelihood). o Per Mason J : The identification of the relevant standard of care depends upon a balancing of: ‘The magnitude of the risk and the degree of probability of its occurrence, Along with the expense, difficulty and inconvenience of taking alleviating action And any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.’ Statute has codified this: Wrongs Act 1958 (Vic) , S 48 General Principles S 48(2) In determining whether a reasonable person would have taken precautions against a risk of harm , the court is to consider the following ( amongst other relevant things ) – [court can take into additional factors] (a) The probability that the harm would occur if care were not taken; [the likelihood of harm] (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. (i) Likelihood of Harm 48(2)(a) Probability that the harm would occur if care were not taken (at common law = likelihood of risk of injury in that way eventuating (ie magnitude of risk))- more likely it is, more likely reasonable person is to take precautions Examples: o Bolton v Stone [1951] : Degree of risk: Practicality and cost of precautions: P lived next to a cricket ground. D, a cricket club, from where a cricket ball was struck over a 17- feet fence, hitting P in the head while she was standing on the pavement outside her house, seriously injuring her. P sued the club and batsman for negligence, for failing to take precautions. There was a fence around the ground depending on where you were. In 30 yrs between 6 and 10 balls had been hit out, and had never hit anyone before. The ball must have traveled about 100 yards, such a thing had happened only about six times in thirty years. Was D negligent in failing to take precautions? What precautions could they have taken? Bigger fence, increase physical barrier, restrict times, stop playing cricket.
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