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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.

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 facts
Breach of Duty — reasonable person test
Negligence calculus
  • Degree of risk against the likelihood of injury
  • Gravity of injury
  • Effort required to remove the risk
Apply the law to the facts
Damages — causation and scope of liability
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.

Answer guide

  • 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).

  • 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

Suggested answer – negligence model case study

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.

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 asks whether it could foresee that damage might result from the defendant’s action. 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 such as herself (See Chapman v Hearse 1961). The second considers salient features such as whether the plaintiff was in a vulnerable position. 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)

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. The conduct of the defendant is measured against that of a reasonable person in the same circumstances. Special skills, permanent disability or age may alter the test. 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. If the possibility of injury is small then the defendant may be entitled to disregard it. (See 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. (See 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.

Harm is also an essential part of negligence. The plaintiff must show that the defendant’s negligence caused the harm they have suffered. The issue of causation arises. 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 plaintiff must also 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.

See Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 NB Relevance of vicarious liability must be considered also