The risk would be likely to attach significance to it

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the risk, would be likely to attach significance to it . Mercer v Commissioner for Road Transport FACTS: The driver of a tram(not a professional) collapsed at the wheel. The tram crashe into another tram injuring the plaintiff who sued. The Tram company argued that they were acting in common practice. (What they didn’t know was there had been advertised a ‘dead man’s handle’, which would have allowed the tram to stop. HELD: Breach. Common practice is not necessarily a legitimate defence. But it is a heavy burden to prove that it is not right.
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PROVING BREECH FROM CIRCUMSTANCES Proof By Inference Section 52: The plaintiff bears the burden of proving any issue to do with causation. - Proof by inference is acceptable proof in an act for negligence. - P needs to prove to the court on the balance of probabilities that the inference they want the court to make is the most probable inference available . Res Ipsa Loquitor RES IPSA LOQUITOR = The thing/event speaks for itself. E.g. A surgical sponge found in someone’s stomach = surgeon negligent. - P doesn’t have direct evidence but the inference is indisputable. - Burden of evidence is on the plaintiff. - Doesn’t guarantee negligence. - P doesn’t have to prove what the carelessness was. - Must be an accident that doesn’t occur without negligence. - Can’t use if the cause of the accident is known. - Maxim can be used when: o The thing is shown to be under the management of the defendant or their Holloway v McFeeters (HC on appeal) FACTS: P’s husband was killed in a hit and run. There was no witness. She sued the driver in negligence. The only evidence was the body and some skid marks. HELD: Majority: P should succeed. From inference there was a probability that the driver was negligent. BOP on the plaintiff. Can use circumstantial evidence. Dixon: dissenting: It was just as possible that he jumped in front of the car. Shellenberg v Tunnel Holdings Pty Ltd Mummery v Irvings Pty Ltd FACTS: P wanted to buy timber from D. He started walking towards the employee in the shed. At the time a tiny piece of wood shot up out of a saw hitting him in the eye. RIL used to prove breach. HELD: No breech. D doesn’t have to prove they weren’t negligent . This doesn’t happen in the ordinary course of things. If the saw wasn’t involved he would’ve succeeded.
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- P must prove that D’s act caused the injury on a balance of probabilities. - D’s action need not be the only cause but it must be a material/substantial cause. Section 52: The plaintiff bears the burden of proving any issue to do with causation. CAUSATION IN FACT 1. But For Test Section 51(1)(a): A determination of causation depends on whether the negligence was a necessary condition of the occurrence of the harm = ‘but for test’. - ‘But for’ the defendant’s negligence would the plaintiff suffer the injury?
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