Tort Law - Negligence

Foreseeability

It is necessary for a negligence case to succeed that the harm should reasonably be foreseeable as a result of the act or omission at the centre of the claim. A duty of care exists in relation to preventing a given risk, as long as the risk is reasonably foreseeable. The standard applied by courts in determining foreseeability is whether a reasonable person in the position of the defendant should have foreseen it.

Unfortunately the reasonable person has proven to be a somewhat more lucid and thoughtful individual than one might at first think. A person of truly normal competence and tendencies in foreseeing risks would rarely come up to the standard expected by courts. (It is the author’s opinion that such foresight comes only as an advanced skill to be learned over years). Although courts are acutely aware of the deceptive nature of hindsight and regularly try to avoid thinking of the actual events of a case as being patently obvious, the reasonable person is taken by the common law now as being an individual possessed of a formidable talent for anticipating contingencies. What is even more interesting also, is the extraordinary impracticality imputed to the reasonable person when the question of contributory negligence arises in defence.

 

A leading case on foreseeability was Wyong Shire Council v Shirt. A waterskiing club built a jetty in a lake...

 

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Special Vulnerability

Some persons have special vulnerabilities such as sight impairment, a lame foot, old age and so forth, and as a result may be far more likely than most to come to harm. While commonsense may require such people to take extra care for themselves, the law does not require this. As long as a certain form of vulnerability is reasonably common...

 

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Purely Mental Harm

When dealing with a claim for pure (or primary) mental harm, the foreseeability of the harm claimed for depends on what would be suffered by a person of normal fortitude. This rule applies where the mental harm is resultant directly from the defendant’s negligence...

 

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[1] Haley v London Electricity Board [1965] AC 778.

[2] Tame v New South Wales; Annetts v Australian Stations Pty Limited [2002] HCA 35.