The amount of damage done is not relevant only

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The amount of damage done is not relevant only whether the SOC has not been met. (a) Significance of past factual decisions Legal Test / Factual Situation Standard of Care is Legal test. What a reasonable person would do in a particular fact situation is a question of fact not law. Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 (CB 279) Distinction between factual situation and legal precedent. (b) What is negligent conduct? Blyth v Birmingham Waterworks Co (1856) 11 Ex 781; 156 ER 1047 (CB 213) Test for Breach Wrongs Act s48(1) – Three elements which are required for a breach to have occurred D is not negligent in failing to take precautions against a risk of harm unless: 1. the risk was foreseeable (that is, it is a risk of which D knew or ought to have known); 2. the risk was not insignificant; and 3. in the circumstances, a reasonable person in D's position would have taken those precautions Element 1 – the risk was foreseeable (that is, it is a risk of which D knew or ought to have known) (Reflection of old CL position) Wyong Shire Council v Shirt (1980) 54 ALJR 283 (CB 218) Mason J: The D will not have breached the duty of care unless it was RF that their actions would injure the P or a class of P’s of which the P belonged. 9
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Degree or likelihood of risk is CL based. CL Test for degree: not farfetched or fanciful. -- The RF test is general when talking about Duty. With reference to breach a specific question is asked. The test in duty is broad, the test for breach is narrow. The question to ask for RF: Did the D take precautions to guard against the specific risk?. EG: Manufacturers of products owe a DoC to the consumer, i.e is it is RF that any careless could cause harm to the consumer of the product. (Answer is usually yes). At the breach stage the focus is what specifically when wrong. Element 2 – the risk was not insignificant (Not part of the CL) Wrongs Act , s 48 (3) For the purposes of sub-section (1) (b) (the risk was not insignificant): 1. insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and 2. risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks Point 1 Does not add anything new due to the element 1 test. Point 2 The defendant’s conduct is judged according to the standard of care that a person of ordinary prudence would exercise in the circumstances Farfetched or Fanciful -------------- Insignificant --------------------------------------------------- Significant Not insignificant must lie between insignificant and significant. Commonsense must be used. Element 3 - in the circumstances, a reasonable person in D's position would have taken those precautions. (Reflects the previous CL position). Three aspects to look at: 1. Defining the reasonable person 2. What risks are foreseeable 3. Calculus of the standard Test is objective according to the CL.
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