8 - Breach, Causation and Defences
BSB250 - Business Citizenship Notes
Overview
Instructor: Professor Gavin Nicholson
Topic: Negligence Part 2 - Breach, Causation, and Defences
Focus of Module: Explore remaining elements of negligence and defences available to defendants.
Recap from Last Module
Covered the legal definition of negligence and duty of care.
Discussed tests to determine a defendant's duty of care.
Element 2: Breach of Duty
Definition: Breach of duty arises when a defendant fails to act as a reasonable person would under similar circumstances.
Not all accidents imply negligence; for a breach, proximity to a duty and actual failings must be established.
Example to Illustrate Breach of Duty
Scenario: A stopped car at traffic lights is rear-ended.
Legal Relevance: The stopped driver has a duty of care but did not breach it due to being rear-ended by another vehicle (Chapman v Hearse).
Conclusion: The other driver likely breached their duty (should have slowed down).
Formal Test of Breach of Duty
Governed by the Civil Liability Act (CLA) 2003, specifically Section 9.
Components to Establish Breach:
Foreseeability of Risk
Non-insignificance of Risk
Reasonableness of Precautions
S9(1)(a) - Foreseeability of Risk
Risk must be one that a reasonable person in similar circumstances would foresee.
Example: In Wagon Mound (No 1), oil leaking was deemed not to foreseeably cause a fire due to its generally considered innocuous nature.
Other Examples:
High likelihood of break-ins in a poorly-lit parking lot suggests a foreseeable risk.
Unlikely dance injuries at a retirement village indicate a non-foreseeable risk.
S9(1)(b) - Non-significance of Risk
The risk should not be trivial or far-fetched; must be significant enough to warrant consideration.
Example: Rogers v Whitaker (high impact but low probability risk during surgery determined to be significant).
In Bolton v Stone, a cricket ball incident determined as insignificant due to low probability of hitting someone.
S9(1)(c) - Reasonableness of Precautions
Courts assess numerous factors regarding reasonable precautions—no strict formula exists.
Four Key Factors:
Probability of Harm: Higher probability necessitates greater caution.
Example: Machinery with known issues requires preventive measures.
Seriousness of Harm: The more severe the potential harm, the more precautions are expected.
Example: Safety goggles should be provided to workers to prevent total blindness.
Burden of Taking Precautions: Consider effort, cost, and feasibility of measures.
Example: Basic fire safety in a small restaurant versus advanced systems in larger venues.
Social Utility of Activity: Activities contributing to societal benefits may warrant leniency.
Example: Emergency services balancing risks against public benefits.
Application of the Test
Courts evaluate collectively, considering:
Probability and Seriousness: Even low probability risks can require precautions if serious.
Burden of Precautions: The burden should be low for necessary precautions, or they are deemed unreasonable.
Social Utility: More room for risk in benefit-heavy roles (e.g., Watts v Hertfordshire County Council).
Element 3: Causation
Definition: Causation assesses whether a defendant’s breach directly caused the plaintiff’s harm.
Formal Test of Causation
Governed by Section 11 of the CLA, consisting of two elements: factual causation and scope of liability.
S11(1)(a) - Factual Causation
Known as the “but for” test: But for the defendant's actions, would the harm have occurred?
Example: Barnett v Chelsea & Kensington Hospital, where harm caused by negligence did not lead to death as it would have occurred irrespective of the doctor's actions.
S11(1)(b) - Scope of Liability (Legal Causation)
Examines if the type of harm was a foreseeable result of the defendant’s conduct.
Example Scenario: Brewed Awakening coffee shop case, where the foreseeability of a spectator's injury from a pressure espresso machine is evaluated. - Questions to consider include:
Did the defendant owe a duty?
Did they breach that duty?
Was the particular kind of harm foreseeable?
Key considerations:
Intervening Acts: Independent events affecting causation.
Unforeseeable Harms: Bizarre or unexpected outcomes may limit liability.
Acts of God: Natural occurrences contributing to harm limit scope of negligence.
Criminal Acts of Third Parties: Unforeseeable actions generally shield defendants from liability unless they created a risk.
Special Case of Mental Harm
Challenge: Courts historically hesitant to recognize claims for mental harm due to risks of fraudulent claims.
Criteria for Recognition:
Foreseeability of mental harm.
Proximity to the traumatic event.
Direct perception of the event.
Example: Alcock v Chief Constable, where claims were dismissed due to lack of direct presence and proximity in a disaster incident.
Defences for Negligence
After establishing negligence, the defendant can argue factors minimizing their liability based on plaintiff actions.
Voluntary Assumption of Risk (Volenti Non Fit Injuria)
Definition: Defence when a plaintiff knowingly accepts a risk, absolving the defendant of liability.
Requirements:
Plaintiff must be aware of the risk.
Must fully understand the nature and extent of the risk.
Must voluntarily take the risk.
CLA Sections:
Section 13 (defines obvious risk).
Section 14 (deems acceptance of obvious risks).
Example: In skydiving, voluntary risk of a hard landing could clear liability for operators if participants were well-informed.
Cases and Laws Mentioned and Their Relevance
Cases
Chapman v Hearse: Illustrates that a party can have a duty of care without breaching it, as the breach often comes from the actions of another party (e.g., getting rear-ended at a red light).
Wagon Mound (No 1): Defines the concept of foreseeability of risk under Section 9(1)(a) of the CLA, showing that not all potential harms resulting from an act are foreseeable (e.g., oil leading to fire was not foreseeable).
Rogers v Whitaker: Highlights that even risks with low probability but high impact can be considered significant under Section 9(1)(b) of the CLA, especially in professional contexts like surgery.
Bolton v Stone: Demonstrates what constitutes an 'insignificant' risk under Section 9(1)(b) of the CLA, where a very low probability of harm means it may not warrant precautions (e.g., a cricket ball hitting someone outside the ground).
Watts v Hertfordshire County Council: Showcases how the 'social utility of activity' factor under Section 9(1)(c) of the CLA can influence the reasonableness of precautions, granting more leeway for emergency services.
Barnett v Chelsea & Kensington Hospital: Defines factual causation (the 'but for' test) under Section 11(1)(a) of the CLA, establishing that a defendant is only liable if their breach actually caused the harm, not if the harm would have occurred anyway.
Brewed Awakening coffee shop case: An example scenario used to explain 'scope of liability' (legal causation) under Section 11(1)(b) of the CLA, focusing on whether the type of harm was a foreseeable result of the defendant's conduct.
Alcock v Chief Constable: Illustrates the strict criteria for recognizing claims of mental harm, emphasizing the need for foreseeability, proximity, and direct perception of the traumatic event.
Laws
Civil Liability Act (CLA) 2003: The overarching legislation governing negligence claims, setting forth the formal tests for breach, causation, and defences.
Section 9: Governs the formal test for Breach of Duty, outlining the three components: foreseeability of risk (S9(1)(a)), non-insignificance of risk (S9(1)(b)), and reasonableness of precautions (S9(1)(c)).
Section 11: Governs the formal test for Causation, detailing the two elements: factual causation (S11(1)(a)) and scope of liability (S11(1)(b)).
Section 13: Defines what constitutes an obvious risk in the context of defences for negligence, particularly for voluntary assumption of risk.
Section 14: Deems acceptance of obvious risks, further elaborating on the defence of voluntary assumption of risk.
Exam Tips for Negligence Questions
Structure Your Answer: Always follow the IRAC (Issue, Rule, Application, Conclusion) method for each element of negligence.
Issue: Identify the specific legal question (e.g., Was there a breach of duty?).
Rule: State the relevant legal principles and sections of the Civil Liability Act 2003 (e.g., S9 for breach, S11 for causation).
Application: Apply the facts of the scenario to the stated legal rules, using the tests (e.g., S9(1)(a)-(c) factors, 'but for' test).
Conclusion: Provide a reasoned answer to the issue based on your application.
Refer to Legislation and Cases: Explicitly cite sections of the CLA (e.g., S9(1)(c)) and relevant case precedents where appropriate to support your arguments. Show how the facts of a presented scenario align with or differ from key cases.
Address All Elements Systematically: Even if one element seems unlikely, briefly address why it might or might not apply before moving on. Don't skip elements.
Practice Scenario Analysis: Work through various hypothetical scenarios, paying close attention to slight variations in facts that could alter the outcome for breach, causation, or available defences.
Understand the Defence Mechanics: For defences like Voluntary Assumption of Risk, clearly articulate the requirements and how the facts of a problem satisfy or fail to satisfy them (e.g., awareness, understanding, voluntary action).
Mental Harm Considerations: If a scenario involves mental harm, remember the specific, stricter criteria for its recognition and discuss them thoroughly.
Identify the Role of Each Party: Clearly distinguish between the plaintiff and defendant and their respective actions and potential liabilities.