LWZ116 Lecture Notes - Lecture 5: Tort, Wyong Shire, Breach (Security Exploit)
Lecture 5
2017
BREACH – is a question of fact. For Defendant to be liable in negligence, it is necessary that it was
foreseeable that the kind of conduct by the Defendant might cause some kind of damage to the Plaintiff.
Leading case - Wyong Shire Council v Shirt (1980) 146 CLR 40,
Background facts
Plaintiff [Shirt] was gravely injured after water skiing in a lake.
The water was really shallow in some places, and that is why the Plaintiff was injured.
The Defendant erected a 'deep water' sign close to where the Plaintiff was hurt, which
meant to serve as a border - beyond it, the water starts getting shallower.
Legal issues
Breach of Duty - Reasonable foreseeability
Breach of Duty - Calculus of negligence
Judgment
Two Part test
‘In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself
whether a reasonable man in the defendant's position would have foreseen that his conduct involved a
risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the
affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of
response to the risk.’ Wyong Shire Council v Shirt (1980) 146 CLR 40;
Reasonable foreseeability – What is foreseeable risk?
"Foreseeability of the risk of injury and the likelihood of that risk occurring are two different
things."
Foreseeability in this context means that the risk is not far-fetched or fanciful.
"Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making
any statement as to the probability or improbability of its occurrence, save that we are implicitly
asserting that the risk is not one that is far-fetched or fanciful."
In this case, the risk was that the ambiguity of the sign might induce people to believe that
the water was deep and therefore safe for water skiing. This is a foreseeable risk.
Calculus of negligence
"The perception of the reasonable man's response calls for a consideration 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.”
Foreseeability must be assessed prospectively and not in the hindsight. Just because the accident did
occur, does not mean that it was foreseeable and it could occur.
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Lecture 5
2017
In Mulligan v Coffs Harbour City Council (2005) 233 CLR 486, again the two part test, in regards to the
relevant factors for the calculus of negligence,” ‘…the inquiry is directed to identifying what the
reasonable response would have been by a person looking forward at the prospect of the risk of injury.
That must be assessed having regard to the magnitude of the risk, the degree of probability of its
occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other
conflicting responsibilities the alleged tortfeasor may have.’
The relevant factors include:
1. Likelihood of Harm – A reasonable man would take more or less care depending on the risk.
In Bolton v Stone, where the Issue was, ‘what standard of care does a land owner owe to persons
on an adjoining highway?’
Ratio:
There is no special duty of care owed by land owners to persons on an adjoining highway. The
landowner is held to the standard of care of a reasonable, ordinary, prudent person. If the land
owner's conduct is not unreasonable, he has not breached any duty to his neighbour.
Per Lord Porter, “‘It is not enough that the event should be such as can reasonably be foreseen; the
further result that injury is likely to follow must also be such as a reasonable man would
contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of
injury occurring enough; there must be sufficient probability to lead a reasonable man to anticipate
it. The existence of some risk is an ordinary incident of life, even when all due care has been
taken, as it must be taken’
Per Lord Reid, “I think that reasonable men do in fact take into account the degree of risk and do
not act on a bare possibility as they would if the risk were more substantial. …In my judgment the
test to be applied here is whether the risk of damage to a person on the road was so small that a
reasonable man in the position of the appellants, considering the matter from the point of view of
safety, would have thought it right to refrain from taking steps to prevent the danger.’
The test: Whether the risk of damage to a person on the road was so small that a reasonable
person in the position of the appellants, considering the matter from the point of view of safety,
would have thought it unnecessary to refrain from taking steps to prevent the danger.
Analysis:
→ Determining duty of care includes a consideration of the degree of risk in addition to
foreseeability. It is necessary to consider the likelihood of being struck, but also how seriously one
would be struck: question not of law but of fact and degree
→ A reasonable person tries to not create a substantial risk
2. Gravity/seriousness
Paris v Stepney Borough Council, [1950] UKHL 3 - Facts: Paris, who had only one eye, served as a
garage-hand. He was hitting bolts, when a piece of metal pierced his good eye, rendering Paris completely
blind. At trial it was held that standard of care required in duty to worker was breached because of Paris'
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Document Summary
For defendant to be liable in negligence, it is necessary that it was foreseeable that the kind of conduct by the defendant might cause some kind of damage to the plaintiff. Leading case - wyong shire council v shirt (1980) 146 clr 40, Plaintiff [shirt] was gravely injured after water skiing in a lake. The water was really shallow in some places, and that is why the plaintiff was injured. The defendant erected a "deep water" sign close to where the plaintiff was hurt, which meant to serve as a border - beyond it, the water starts getting shallower. Breach of duty - calculus of negligence. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. " wyong shire council v shirt (1980) 146 clr 40;
