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Model case study
This section will take you through the process of constructing a legal argument around the tort of negligence.
It provides a case study using a series of steps called "IRAC". You can complete the case study as an exam if you wish.
Identify - the relevant area of law in your introduction
Rules - define and examine the rules of the relevant issues
Apply the rules to the facts for each relevant issue
Always use relevant case(s) to support your application of the facts for each issue
Conclusion
In some instances, you may need to identify more than one issue and be prepared to define and apply all of the relevant law, always using a case reference where possible to support your answer (conclusion).
Once you have analysed the model outline, apply it to the Negligence Case Study.
Negligence sample exercise
This is a case study exercise. Read the case and complete the task below.
Remember to apply the structure model to your answer to make sure that you cover all the relevant areas. If you wish to complete this exercise as a test, you can apply the following conditions:
- time allocated: 1.5 hours
- open-book exam
Case
The Yarra Valley City Council (YVCC) organised for work to be completed on a lake under its control. The Council was aware that the lake had been used for recreational purposes including boating and water skiing. As a result of the work, part of the lake contained deep water while other parts were shallow. The Council erected a sign saying 'Deep Water' to indicate a part of the lake which in fact had become quite deep. Brooke, an inexperienced water skier, was under the impression that the water all around the sign was deep. Brooke fell from her skis while skiing in shallow water near the sign. She struck her head on the bottom of the lake, suffering substantial injuries to her spine as a result.
Task
Advise Brooke whether she has any legal rights in negligence against the Yarra Valley City Council. Use case references to support your answer.
Use the structure model to formulate your response. Check your answer against the case outline.
Having read the case study, analyse the case in respect to the following categories. Formulate your answer using these categories.
Case outline
Identify — introduction — define the tort of negligence
Establish — duty of care: Relationship between the parties:
does the relationship fall within an established category such as doctor/patient or lawer /client? If not, must establish foreseeability and consider salient (other relevant) features of the case.
Apply the law to the factsBreach of Duty — reasonable person test
Negligence calculus
Negligence calculus
- Degree of risk against the likelihood of injury
- Gravity of injury
- Effort required to remove the risk
Damages — causation and scope of liability
Apply the law to the facts
Apply the law to the facts
Conclusion — possible vicarious liability for negligence
Once you have finished your response using this outline, check your answer against the answer guide to see how you went and adjust your answer as needed.
This is the answer guide to the negligence case study. Compare your response to this guide and make sure you have covered each of these points.
- Identify - introduce area of law – negligence. Outline relevant elements, i.e. duty of care (DoC), breach of duty (BoD) and damage
- Rules and Application — Define and apply each element
- — established category?
DoC – foreseeability/salient features. Define and apply relevant tests; Council owed a duty of care (case reference) - BoD – reasonable person test: consider any alterations to test such as special skills. Define and apply - Council did not act as a reasonable person
Negligence calculus. Define and apply:
• likelihood of injury = high
• gravity of injury = serious
• effort required to remove the risk = low
The Council has breached its duty of care (case references).
- — established category?
- Damage – Causation/Scope of liability.
Define and apply relevant tests; Council was responsible for the damage suffered by Brooke (case reference)- vicarious liability – consider elements ie. Employee committed the tort
- employee worked under a contract of service
- employee was undertaking an authorised task
- Conclusion: If an employee of the Council was responsible for putting up the incorrect signs, the Council could be held vicariously liable for negligence
Suggested answer – negligence model case study
- Note 1: The following answer uses in-text citations to include case references in an abbreviated format. If you are writing an assignment, you will need to reference pursuant to the AGLC (4th edition).
- Note 2: This is a sample ‘model’ answer which has been prepared as an example of legal analysis. It does not purport to be a comprehensive piece of advice on this topic.
Introduction
In the tort of negligence the plaintiff must prove that the defendant owed them a duty of care, breached that duty and that harm was caused as a result of a breach of that duty: Donoghue v Stevenson [1932] ACC 562.
Duty of Care
For Brooke to make a successful claim against the Yarra Valley City Council she must establish that a duty of care existed. If Brooke's relationship with the council does not fall within an established category for duty of care, two tests will be applied. The first test is the neighbour test that asks whether the defendant could foresee that damage might result from ththeir action to someone in the plaintiff’s position. It could be argued in Brooke’s case that the signs put up by the Council created a reasonably foreseeable risk of injury of some kind to someone in Brooke’s position(see Chapman v Hearse (1961) 106 CLR 112). The second test considers salient features such as whether the plaintiff was in a vulnerable position (Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649.)
Precedent tell us that public authorities and local councils have been found to owe a duty of care to members of the public (see Vairy v Wyong Shire Council; Shirt v Wyong Shire Council and Romeo v Conservation Commission of the NT. Members of the public using the water under its control rely on the council to provide accurate safety signs (see Nagle v Rottnest Island Authority 1993).
Breach of Duty
The second element required to prove negligence is that a duty of care has been breached. To determine whether there has been a breach of duty the question must be asked whether a reasonable person would have foreseen the harm in the circumstances and taken steps to prevent it (see the Wrongs Act 1958 (Vic) s 48(1)).
The defendant’s conduct is measured by the test or standard of what a ‘reasonable person of ordinary prudence’ would have done in the same circumstances as the defendant. The test is objective (though it has some limited subjective elements). For instance, the standard of care may be alerted if the defendant has special skills or a defendant who is a child. A council, which is responsible for the maintenance of a river such as the YVCC and where there exists a hidden danger, will owe a duty of care to warn people of foreseeable risks.
The law must then balance the degree of the risk and the likelihood of injury occurring, against the expense and difficulty of taking precautions (see Wrongs Act 1958 (Vic) s 48(2)). If the possibility of injury is small, then the defendant may be entitled to disregard it (Bolton v Stone 1951). However, if the degree of injury is serious and the cost of taking precautions is low then the defendant will be expected to take appropriate action to minimise the risk (Paris v Stepney Borough Council 1951). The YVCC should have been aware that a water skier could take the sign ‘Deep Water’ to mean that it was safe to ski and thus suffer a serious injury in proceeding to do so. The cost of changing the signs and warning people of the dangers may have been small in comparison to the risk associated with not doing so. In an analogous case of Wyong Shire Council v Shirt (1980) 146 CLR 40 the local council was held liable for erecting a ‘deep water’ sign which was ambiguous and encouraged an inexperienced skier to undertaking water-skiing in shallow water. However, with the existence of legislative provisions applying to public authorities, the local council’s resources are a factor that now must be taken into account (see Wrongs Act 1958 (Vic) s 83).
Causation
Harm is also an essential part of negligence. The plaintiff must show that the defendant’s negligence caused the harm they have suffered. The test of causation is reflected in a two-part statutory test: Wrongs Act 1958 (Vic) s 51. The first part of the test is factual causation, meaning Brooke must show that her injuries were factually linked to, or caused by, the council’s negligence. The ‘but for’ test may be applied where the question is asked ‘but for the conduct of the defendant, would the damage have been suffered?’. In the current case, Brooke would argue that her injuries would not have happened but for the YVCC’s failure to erect the proper warning signs.
The second part of the test requires the plaintiff to show that the scope of liability would extend to the defendant’s negligence, meaning that it would be appropriate to extend liability to the defendant in these particular circumstances. Thus, Brooke must demonstrate that the damage suffered was within the scope of liability. The test is one of reasonable foreseeability. If the damage was reasonably foreseeable by the defendant then liability will flow (See Overseas Tankship (UK) Ltd V Miller Steamship Co. Pty 1967). Brooke may be successful in her claim against YVCC if she can prove that a council would be aware that there was a real risk of physical injuries of the kind sustained by her as a result of using the river due to the incorrect signs.
Vicarious Liability
Finally, the principle of vicarious liability may be considered. This means that the council may be liable for the negligent conduct of a council employee: Hollis v Vabu Pty Ltd (2001) 207 CLR 21.
Defences and Remedies
For completeness, you should consider defences (including whether the risk was obvious) as well as available remedies.
The first defence available is voluntary assumption of risk that is 100% defence meaning that any liability will be reduced to zero, see Rootes v Shelton [1967] 116 CLR 383 as well as the Wrongs Act (Vic) ss 53-54). This rule provides that”
(1) the Plaintiff had full knowledge and appreciation of the risk, and;
(2) the plaintiff freely and willingly agreed to the precise risk that eventuated.
The second defence is that of contributory negligence meaning that the plaintiff contributed themselves in some way to their own loss or injury, see Ingram v Britten [1994] Australian Torts Reports 81-291. This is a partial defence meaning that liability for any losses will be shared between the plaintiff and the defendant.