Element two - breach of duty

Has D breached their duty of care to P ?

If the duty of care question is decided in favour of the plaintiff, it then becomes a question of fact whether the particular conduct complained of is a breach of duty.

A defendant has breached their duty of care if they failed to do what a reasonable person would have done in the same circumstances.

Breach of duty

The standard of care is an objective one and the standard required is that of a reasonable person. This is a question of law.

The defendant fails to show a reasonable standard of care if: the risk of injury was reasonably foreseeable (a

question of law); and there was a reasonable likelihood of the injury

occasioned by it.

Breach of duty

The defendant need only take precautions against foreseeable risks.

CASE: Bolton v Stone [1951]

CASE: Wyong Shire Council v Shirt (1980)

CASE: Nagle v Rottnest Island Authority (1993)

Breach of duty

The more serious the likely injury, the greater precautions the defendant must take.

CASE: Paris v Stepney Borough Council [1951]

Other relevant factors include: The practicability of precautions

CASE: Romeo v Conservation Commission of the Northern Territory (1998)

CASE: Wyong Shire Council v Shirt (1986)

The social utility of the defendant’s conductCASE: Watt v Hertfordshire County Council [1954]

CASE: Agar v. Hyde; Agar v. Worsley [2000]

Standard of care

The standard of care that is expected is that of the reasonable person equipped with the same skills and expertise as a person exercising a particular trade or profession.

The standard of care is flexible and varies from situation to situation

CASE: Cook v Cook (1962)

In relation to children, the standard is that of a child of similar age and experience

CASE: McHale v Watson (1966)

Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29

Facts: Ms Cole attended a champagne breakfast at the South

Tweed Heads Rugby League Football Club

She spent the day drinking at the Club

The Club stopped serving Ms Cole after 12.30 pm, but her

friends provided her with drinks for the rest of the afternoon

At 5.30 pm the Club’s manager asked Ms Cole to leave the

premises after she was seen behaving indecently with 2

men

Cole v South Tweed Heads Rugby League Football Club Ltd

The manager offered Ms Cole a taxi home, but Ms Cole

rejected the offer in blunt and abusive terms

She then left the Club with the 2 men, who assured the

manager that they would take care of her

At 6.20 pm Ms Cole was struck by a car near the Club and

was seriously injured

She was found to have a blood alcohol concentration of

0.238%

 Who was responsible for Ms Cole’s injuries?

Who was responsible for Ms Cole’s injuries?

Issues before the court:

Did the Club owe a duty to take reasonable care:

to monitor and moderate the amount of alcohol served to

Ms Cole?

that Ms Cole travelled safely away from the Club’s

premises?

Does a general duty of care exist to protect persons from harm

caused by intoxication following a deliberate and voluntary

decision on their part to drink to excess?

Did the car driver owe Ms Cole a duty of care?

Did Ms Cole in any way contribute to her own injuries?

Cole v South Tweed Heads Rugby League Football Club Ltd

Breach of duty of care The evidence did not establish that the Club had

failed to take reasonable care to protect Ms Cole from the risk of incurring the injuries sustained.

This is because the Club would have discharged that duty when the manager offered Ms Cole a taxi to get home.

Element three - damage

Has P suffered damage?The plaintiff must suffer some loss or

damage as a result of the defendant’s breach of duty.

The plaintiff must show some link between the damage suffered and the defendant’s conduct. Two factors for consideration are:

that the loss or damage was ‘directly caused’ by the defendant’s breach – causation; and

that the loss was ‘not too remote’ from the breach - remoteness.

Causation

Onus on plaintiff to establish that the damage they suffered was caused by the defendant’s conduct.

The most widely used test is the ‘but for’ test (and is a question of fact):

The breach caused the damage if the damage would not have occurred but for the breach.

CASE: E H March v Stramare Pty Ltd (1991)CASE: Alexander v Cambridge Credit Corporation Ltd (in rec)

(1987)

Note: the ‘but for’ test is not an exclusive test, e.g. there is the ‘common sense’ test:

CASE: approved in Chappel v Hart (1998)

Remoteness

This permits the court to consider whether, and to what extent, the defendant should be responsible for the consequences of their conduct.

It is a question of law and the test is whether a reasonable person could foresee such a happening. That is, the damage must be reasonably foreseeable.

Remoteness

If the damage suffered by the plaintiff is too remote or far-fetched, it will not be recoverable.

CASE: Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co [1961] (also known as The Wagon Mound No 1 [1961])

CASE: The Wagon Mound No 2 [1967]

the test of remoteness was met where the risk was ‘very likely’ or ‘real’