BSB250 Negligence: Breach, Causation and Defences — Study Notes

Overview

• This module covers negligence in business law, focusing on the tort of negligence and how to determine if duty, breach, and causation exist, plus available defences.
• Key questions:
  • What is a tort, and what is the tort of negligence?
  • How do you know if someone is negligent?
  • What are the three requirements for a negligence action? (R1 Duty of care, R2 Breach of duty, R3 Causation)
  • Are there any defences (voluntary assumption of risk, contributory negligence)?
• Core framework is built around the Civil Liability Act (CLA) sections referenced in the material (Queensland ACT used as example):
  • Duty of care (R1) arises from TOC, e.g., motorists owe a duty to other road users.
  • Breach of duty (R2) assessed under s9 of the CLA.
  • Causation (R3) assessed under s11 of the CLA.
  • Defences: voluntary assumption of risk (s14), inherent risk (s16), contributory negligence (s23 and related provisions), intoxication (s47).
• The material also presents several leading case laws to illustrate how these elements and defences apply in practice.

R1 Duty of Care

• The plaintiff must show the defendant owed a duty of care to the plaintiff.
• Example category: motorists owe a duty of care to other road users.
• Duty of care is a necessary condition for negligence but not sufficient on its own; breach and causation must also be established.

R2 Breach of duty of care

• After establishing a duty of care, determine whether the duty was breached.
• Test for breach is set out in s9 of the Civil Liability Act (CLA):
  • 9(1) A person does not breach a duty to take precautions unless:
  • 9(1)(a) The risk was foreseeable (the risk of harm was known or ought reasonably to have been known);
  • 9(1)(b) The risk was not insignificant; and
  • 9(1)(c) In the circumstances, a reasonable person in the position of the person would have taken the precautions.
• Important notes on 9(1):
  • 9(1)(a) Foreseeable risk does not require the word "reasonable" in this subtest; it focuses on whether the risk was known or ought to have been known.
  • 9(1)(b) Not insignificant means the risk must be more than trifling; moderate risks can still be "not insignificant".
• 9(2) When deciding whether a reasonable person would have taken precautions, the court considers:
  • The probability that harm would occur if care were not taken;
  • The likely seriousness of the harm;
  • The burden of taking precautions to avoid the risk of harm;
  • The social utility of the activity that creates the risk of harm.
• The final element of breach is the Court’s assessment of whether a reasonable person would take precautions, using the factors in 9(2).
• Relationship among the factors: increase in probability or seriousness, or reduction in the burden of precautions, tends to support a breach; high social utility can reduce the likelihood of breach.
• Examples mentioned:
  • High-level outline case references: Paris v Stepney Borough Council (see page 24) connects severity of potential harm to the expected precautions.

R3 Causation

• Damages in negligence aim to compensate the injured party, not punish the careless party. Therefore, causation requires a link between the breach and the harm (not just the breach).
• Causation is assessed under s11 of the CLA.
• Causation elements:
  • Factual causation (the but-for test):
  • But-for the defendant’s carelessness, would the plaintiff have suffered the harm?
  • If the answer is yes (the harm would have occurred anyway), factual causation is not satisfied.
  • Example reference: Adeels Palace Pty Ltd v Moubarak discusses situations where the but-for test is not satisfied.
  • Formal representation: ext{Factual causation (but-for): } ext{But-for } C ext{, } H ext{ would not have occurred.}
  • Scope of liability (legal causation / remoteness):
  • The harm must be a reasonably foreseeable consequence of the breach.
  • If the harm was too remote or not reasonably foreseeable, liability may be limited or absent.
• Summary: To succeed in negligence, the plaintiff must prove R1, R2, and R3 (duty, breach, causation). Even if all three are established, defences may reduce or eliminate liability.

Defences

• There are two main defences covered: Voluntary assumption of risk and Contributory negligence. Inherent risk and intoxication concepts also influence liability under CLA.

A) Voluntary assumption of risk (volenti non fit injuria)

• Core idea: if a person fully understands a risk and freely chooses to accept it, the defendant should not be liable for the harm that results.
• Traditional test (Agar v Hyde) requires:
  • The plaintiff was fully aware of the specific risk;
  • The plaintiff fully appreciated the nature and extent of the risk; and
  • The plaintiff voluntarily accepted the risk.
• Practical difficulty: the test is subjective (depends on the plaintiff’s awareness and voluntariness).
• Civil Liability Act adjustments:
  • Section 14(1) CLA: If a defence of voluntary assumption of risk is raised and the risk is obvious, the plaintiff is presumed to have been aware of the risk unless proven otherwise on a balance of probabilities.
  • The “obvious risk” is defined as a risk that would have been obvious to a reasonable person in the plaintiff’s position.
  • The defence will not succeed if the plaintiff proves they were not aware of the risk (e.g., due to intoxication).
• Inherent risk consideration (see s16): The CLA also helps by addressing obvious or inherent risks that cannot be avoided by reasonable care and skill.
• Example references: Agar v Hyde; Marks v Skydiving Holding (inherent risk context).

B) Contributory negligence

• If the plaintiff contributed to their own harm, liability is apportioned between the defendant and plaintiff.
• Key reference: Manley v Alexander (case demonstrates apportionment – 70% on the defendant, 30% on the plaintiff in the example).
• Statutory basis:
  • Section 23 CLA: The principles used to decide whether a person breached a duty also apply to determining whether the plaintiff was negligent in failing to take precautions against the risk of that harm (i.e., same factors apply as for the defendant’s duty).
• Intoxication considerations:
  • Section 47 CLA provides how intoxication affects contributory negligence: if a person was intoxicated at the time of the breach and contributory negligence is alleged, contributory negligence is presumed under s47(2).
  • Intoxication is defined as being under the influence to the extent that the capacity to exercise proper care and skill is impaired (as per Schedule 2 of the CLA).
• In summary: Contributory negligence can reduce the defendant’s liability, and in some cases (e.g., intoxication) can be presumed under the CLA.

Case Law summaries (illustrative purposes)

• Paris v Stepney Borough Council [1951] 1 All ER 42, HL
  • Facts: A war veteran with only one good eye was not provided with goggles; a piece of metal damaged the good eye, causing total blindness.
  • Held: The more serious the potential harm, the higher the expected precautions. The court emphasized that the severity of the possible injury increases the duty to take precautions.
  • Legal principle: The severity of harm increases the expected precautions.
• Roads and Traffic Authority of NSW v Dederer [2007] HCA 42
  • Facts: A 14-year-old diver on a bridge; there were warning signs; the RTA knew diving occurred despite signs.
  • Held: The risk was low and the RTA had taken measures (signs, attempts to enforce) — a balance between individual responsibility and the burden of precautions. Higher burden of precautions reduces likelihood of breach.
• Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
  • Facts: A 16-year-old intoxicated individual fell from a cliff; issues around fencing and preventive measures.
  • Held: Fencing the entire cliff was not reasonable; the court noted the burden of precautions and the remote nature of risk; the social utility of the activity (managing the site) weighed against requiring extensive precautions.
• Watt v Hertfordshire County Council
  • Facts: Firefighters needed to transport a heavy jack; an emergency situation led to an unsecured load.
  • Held: The social utility of saving a life can outweigh the duty to take precautionary measures; emergency context reduces breach likelihood. Contrasted with Ward v London County Council, where a slight delay did not justify the breach.
• Adeels Palace Pty Ltd v Moubarak, [2009] HCA 48
  • Facts: A fight in a restaurant/nightclub; gunman re-entered the venue; whether security could have prevented the shootings.
  • Held: On balance of probabilities, security would not have prevented the shootings; the missing security did not satisfy but-for causation.
• Agar v Hyde (2000)
  • Facts: Rugby players injured during scrums; question of whether governing body was negligent in rules creating risk.
  • Held: Players knowingly accepted inherent risks; the governing body was not liable.
• Marks v Skydive Holdings Pty Ltd, [2021] VSC 21
  • Facts: Tandem skydive with heavy landing leading to spinal injury; question of whether risk was inherent.
  • Held: The risk was inherent and obvious; the plaintiff assumed it; no liability for the instructor.
• Manley v Alexander (2005)
  • Facts: A driver struck a man on the road; the pedestrian’s own actions and intoxication affected the outcome.
  • Held: Contributory negligence apportioned liability (70% defendant, 30% plaintiff), illustrating partial recovery reduction.

Key concepts and definitions

• Tort: A civil wrong that gives rise to a claim for damages, excluding breaches of contract.
• Negligence: A breach of a duty of care resulting in damage or injury.
• Duty of care: A legal obligation to avoid acts or omissions that could foreseeably harm others.
• Breach of duty: Faillure to meet the standard of care expected in the circumstances.
• Causation: The link between the breach and the harm; both factual causation and legal causation must be shown.
• Factual causation (but-for test): The harm would not have occurred but for the defendant’s conduct.
• Legal causation (scope of liability/remoteness): The harm must be a reasonably foreseeable consequence of the breach.
• Damages: Compensation for loss or harm caused by the breach.
• Duty, breach, causation triad: R1, R2, R3.
• Obvious risk: A risk the plaintiff would reasonably recognize in the given context; affects voluntary assumption of risk.
• Inherent risk: An inherent risk of the activity that cannot be avoided by reasonable care; not liable for resulting harm.
• Contributory negligence: Plaintiff’s own fault contributing to harm; damages proportionally reduced.
• Intoxication: A factor that can lead to presumptions about contributory negligence under s47 CLA.

Formulas and statutory references (LaTeX)

• Factual causation (but-for test):
  • ext{Factual causation: } ext{But-for } C ext{, } H ext{ would not have occurred.}
• Breach test (CLA s9):
  • Foreseeability: ext{risk was foreseeable}
  • Not insignificant: ext{risk was not insignificant}
  • Reasonable precautions: ext{in the circumstances, a reasonable person would have taken precautions}
• s9(2) factors: no LaTeX required, but can be viewed as a decision framework:
  • Probability of harm absent precautions
  • Seriousness of potential harm
  • Burden of precautions
  • Social utility of the activity
• Causation (scope):
  • Foreseeable consequence test: the harm must be a reasonably foreseeable consequence of the breach.
• Voluntary assumption of risk (s14):
  • An obvious risk shifts burden to plaintiff to prove lack of awareness on balance of probabilities if a defence is raised.
• Inherent risk (s16):
  • Not liable for harm arising from inherent risks that cannot be avoided by reasonable care.
• Contributory negligence (s23):
  • The same factors from s9 apply to plaintiff’s breach.
• Intoxication (s47):
  • If the plaintiff was intoxicated at the time of harm and contributory negligence is alleged, contributory negligence is presumed (s47(2)).

Summary notes for exam preparation

• To succeed in negligence: prove R1 duty, R2 breach, R3 causation, and account for any defences.
• Breach is assessed by s9 CLA with a three-part test plus factors in s9(2).
• Causation requires both factual causation (but-for) and the scope/foreseeability of the harm.
• Defences can eliminate or reduce liability: voluntary assumption of risk, inherent risk, contributory negligence, intoxication considerations.
• Case law demonstrates how courts balance foreseeability, severity, burden of precautions, social utility, and the practical realities of enforcing precautions in various contexts.
• Remember key cases for the exam: Paris v Stepney, Dederer, Romeo, Watt, Adeels Palace, Agar v Hyde, Marks v Skydive Holdings, Manley v Alexander.