Breach

The plaintiff must show that the defendant breached their duty of care by falling below the standard of care expected of them. Following are the key elements that are relevant to determining the standard of care owed by a defendant; the relevance of obvious and inherent risks to assessing whether a breach of duty of care has occurred; and the various situations where the standard of care is modified to take into account specific characteristics of the parties.

Breach: In order for a breach to have occurred a requirement of fault must be met; Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301.

· A defendant will have breached their duty of care if they fail to meet the standard of care that would have been shown by a reasonable person on avoiding or reducing a risk of injury to the plaintiff.
· This common law test proposed by Mason J in Shirt has been modified by the Civil Liability Act 2002 (WA); The court will only determine whether the defendant has breached their duty of care in light of what the defendant knew or should have known before the injury was sustained. The case cannot be judged with ‘hindsight’ after the act has occurred.

· When the defendant actually knew of the risk that caused the plaintiff’s injuries then the requirement that the risk was foreseeable is clearly satisfied.
· If the defendant is unaware of the risk then the issue will be whether a reasonable person in the position of the defendant would have foreseen the risk.
· It is sufficient if the general risk of in injury was reasonable foreseeable: Doubleday v Kelly [2005] NSWCA 151.

· The common law position was that a defendant should have known about a risk if it was not ‘far-fetched or fanciful’: Wyong Shire Council v Shirt at 47. However one of the conclusions of the Ipp report was that this standard was too low and that the higher standard of a ‘not insignificant’ risk should be adopted.
· Western Australian jurisdiction does not attempt to define the term ‘not insignificant’.
· In many cases the change in the threshold of the risk from not ‘far-fetched or fanciful’ to ‘not insignificant’ will have no impact of the issue of whether the defendant breached their duty: Drinkwater v Howarth [2006] NSWCA 222.

· If it is determined that the risk was foreseeable and it was not insignificant then the court will determine what precautions, if any, a reasonable person in the position of the defendant would have taken to prevent the risk from materialising.
· The subjective approach to determining the standard of care according to whether the defendant acted in a way that they believed was reasonable was rejected: Vaughan v Menlove (1837) 3 Bing NC 468.

A. Probability
· It will be unlikely that a defendant will be found to have been negligent in failing to take precautions against a risk of harm when the probability of being injured by that risk is very low: Bolton v Stone [1951] AC 850.
· In Bolton it was held that the defendant did not breach their duty of care due to the very low probability that a cricket ball would be hit over the protective fence and hit a person outside of the cricket field.

Gravity
· A defendant is more likely to be found to have breached their duty of care if it can be shown that their conduct placed others at risk of sustaining serious injuries.
· The more serious the injury that could be caused by the defendant’s conduct then the higher the standard of care that a court will likely expect from a defendant.
· Paris v Stepney Borough Council [1951] AC 367; it was held that the defendant owed the plaintiff a higher standard of care because the risk (of a chip of metal flying into his eye and injuring it) had more serious consequences for him (because the plaintiff was blind in one eye).
· Where the gravity of the injury created by the risk is very high then the standard of care that a defendant will be required to meet may essentially amount to an obligation to compensate a plaintiff if the injury is sustained: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520.

Practicability
· A defendant will not be found to have breached their duty of care unless it can be shown that a reasonable person in the position of the defendant would have taken specific precautions against the risk that caused the plaintiff’s injuries.
· It is unlikely that there will be a breach of care if the only possible precautions that could have been taken against the risk would have involved excessive cost or inconvenience to the defendant.
· Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; it was held that the defendant breached their duty of care, as the instillation of catch points would have been a reasonable precaution to take against the risk of injury. The majority held that the catch points would not have been an impracticable precaution as they would not have cost a significant amount of money and they could have been quickly installed.
· However, subsequent taking of action that (had the action been taken earlier) would have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk.
· An important factor in determining whether a defendant will be liable for failing to take particular precautions is whether they will then also be required to take precautions against similar risks of harm.

Social Utility
· A defendant will be less likely to have breached their duty of care if their activities provide a significant benefit to members of the community.
· This is justified on the basis that sometimes the benefit to the community outweighs the harm caused to the individual plaintiff.
· E v Australian Red Cross (1991) 27 FCR 310; E contracted aids from a blood transfusion using blood supplied by the defendant. A test existed which would identify the virus but would also incorrectly identify some blood as being unsafe and as a result the defendant would lose approx 5% of the total amount of blood received. It was held that the defendant did not breach their duty, and the social utility of the defendant’s activities was a key factor. Adopting the test proposed by the plaintiff would have serious negative consequences on the community.

· Another factor that may be relevant in determining the defendant’s standard of care is the obviousness of the risk that caused the plaintiff’s injuries.
· The law is not yet settled in this area, although a number of High Court Judges have indicated that it is a relevant factor is determining whether there has been a breach of duty;Romeo v Conservation Commission of the Northern Territory.· The act also regulates ‘inherent risks’; means a risk of something occurring that cannot be avoided by the exercise of reasonable skill and care. There is no liability for harm resulting from inherent risk.

· In some situations the standard of a reasonable person will be modified to take into account specific characteristics of the parties and the nature of the relationship between the plaintiff and defendant. Some examples where modifying the reasonable person have been considered are;
1. Children
2. The mentally ill
3. Elderly people
4. Professionals
5. Consenting plaintiff’s

Children
· The standard of care is lowered when the defendant is a child to take into account that children typically have a reduced ability to understand the risks of harm associated with various acts due to their limited experience and understanding.
McHale v Watson (1966) 115 CLR 199; Watson was a 12 year old boy. It was found that his conduct should be judged according to a lower standard that is appropriate for a 12 year old boy. In reference to this lower standard, Watson was not held to be negligent

The mentally ill
· The standard of care is not modified for defendant’s suffering a mental illness.
· Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56; Burt, who suffered from schizophrenia, intentionally drove through an intersection against the signal and ran over Adamson. He incorrectly believed he was being chased by his workmates who wanted to kill him. The standard of care was not modified to take into account Burt’s schizophrenia, as the courts held that the law should not allow a defendant to rely on mental illness to avoid being held liable for an injury they caused another to suffer.

· The elderly may qualify for special consideration in relation to an application of the requisite standard of their lack mobility prevents them from crossing the road with the same agility as the ‘normal’ person – see Dally v Liverpool Corporation [1939] 2 All ER 149.
· However, elderly drivers must conform to the ‘ordinary’ standards of competence – Roberts v Ramsbottom [1980] 1 All ER 7 at 15.

The Civil Liability Act 2002 (WA) now regulates this area of professional liability. It states that; - An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice.