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 conduct

CASE: 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.

 Thestandard of care is flexible and varies

from situation to situation
CASE: Cook v Cook (1962)

 Inrelation 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?
 Theplaintiff 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.

 Itis 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’