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In the resolution of civil cases involving claims of negligence, it is vital for the plaintiff to attest that the defendant owed him/her a duty of care, the breach of which resulted to a damage on his or her part. It is also crucial for the defendant to have recognised in the most reasonable sense that he owned a duty of care to the plaintiff.
This implies that every element of tort has concepts of value judgment ingrained in it. One such value judgment is the capacity to proof that the damage caused to the plaintiff was foreseeable in the most reasonable sense by a reasonable individual in a similar position as the defendant during the time of raising the negligence claims. In this end, a controversy emerges in determining what is foreseeable and what is not foreseeable.
Consequently, judges, not only from Australia, have to derive mechanisms of settling matters involving claims of negligence by determining the reasonableness of the claims, extents of duty of care owed to the plaintiff, and the degree of foreseeability of the damages claimed by the defendant1. Therefore, as revealed in the paper, judges theoretically apply an ‘objective test’ to disguise a ‘subjective’ value judgment in claims relating to negligence in the Australian courts.
Components of tort of negligence in Australia and objective test
In the Australian law, negligence comprises of two essentials components: “foreseeability of the risk of harm and the so called negligence calculus”2. The first component is central in providing a response to the query of whether a person deemed reasonable would have considered the necessary precautions to avoid the risks acerbated to the defendant.
This is a quest to prove a duty of care. One of the ways of proofing duty of care is through a subjective test in which the court has to determine whether the defendant knowingly subjected the plaintiff to situations likely to cause substantial harm. Another way of proving duty of care is through objective test applied by judges.
This entails determining that a defendant failed to realise his/her actions towards another party (claimant) would have caused substantial harm; something that another party in such a position as the defendant would have realised. In Australia, the objective test disguises prior knowledge that one’s actions towards another person would cause substantial harm (subjective test) because the person claimed to have caused the damage is not vital to have prior knowledge that his/her actions could have caused the claimed damage3.
Rather, the standard is to prove that another reasonable person in the same position as the defendant would have realised the probability of the damage and could have taken the necessary precautions to prevent its occurrence. However, even though this argument points at asserting that judges in high courts use objective tests to disguise subjective tests to settle claims of negligence in the Austrian courts, it is important to pin point that “foreseeability implies precondition for finding negligence”4.
This means that a court cannot hold one accountable for not adhering to the necessary safety measures aligned with any unforeseeable risk. However, the fact that the defendant is needed to have foreseen a possible risk on the part of plaintiff does not necessary imply that the defendant needs to be considered as being negligent in taking appropriate precautions to make sure that the plaintiff was free from risks exposure as a subjective test would require5.
Instead, a calculus for negligence is applied to lay the frameworks for making decisions on the necessary precautions that a reasonable person in the same position as the defendant (objective test) would have taken to eliminate the risks posed to the plaintiff, and which truncated in breach of duty of care.
The negligence calculus applied by Australian judges’ sets out the various precautions that a defendant is anticipated to have taken into consideration before acting in a manner that a reasonable person would have known could have caused risks of harm to the plaintiff. According to Deakin, and Johnston, the calculus tests “a) the probability that the harm would occur if care was not taken, b) the likely seriousness of the harm, c) the burden of taking precautions’ to avoid the harm and, d) the social utility of the risk-creating activity”6.
Essentially, the calculus entangles weighing these four components. For personal injuries, the approach of the court is not to test all these components separately for a proof of negligence claim to stand. Rather, “…the court simply asks in the light of these factors what the reasonable person in the position of the defendant would have done or not done in order to avoid harm to the plaintiff” (McGlone & Stickley, n 11).
In this context, it is arguable that, while the probability of risks may a scientific concept, the objective approach of foreseeabilty rests on both interference and knowledge. For example, “even though an event would be highly probable to occur, any person can foresee such an event if that person ought to know or even knows that such an event would take place”7.
This means that judges interpret knowledge of an event likely to pose danger or harm to an individual resulting from undue acts of another person based on the alleged date of negligence but not on possession of such knowledge at some future time.
Conversely, an event of low probability, which can truncate into harming another person (plaintiff) due to negligence of another person(defendant) is only foreseeable by any person in legal terms if that person ought to have known or even knows that such an event had taken place some times in the past8.
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Consequently, it is deducible that, for the purposes of interpretation of validity of negligence claims in Australia, “whether a person ought to have foreseen a particular event is not a matter of what they knew, but of what the ‘reasonable person’ in their position would have known”9. This is why judges apply reasonable foreseeabilty to proofs entailing negligence claims. Essentially, this requires objective tests.
Subject to the approaches of objective value judgment in Australia, a major problem emerges because low probability events may be foreseeable. Consequently, while it sounds subtle to anticipate an individual to be held liable for failing to pay attention to precautions for unforeseeable risks, it is also unreasonable to anticipate an individual to have taken precautions to a risk possessing low probabilities just because it was foreseeable.
In dealing with this challenge, in the case of Wyong Shire Council v Shirt (1980) 146 CLR 40, the high court held, “in effect, that a person cannot be held liable for failure to take precautions against a risk that could be described as ‘far-fetched or fanciful’, even if it was foreseeable”10.
This simply implies that some risks possess very low liabilities to the extent that reasonable people would ignore them. Hence, such persons would not be considered as having breaching duty of care if such risks could have materialised and caused immense damage with the cheapness of mitigating them withstanding.
Another objective approach in determining any claims of negligence, as set out by the Australian high court is the determination of circumstances in which individuals may be held liable for failing to prevent personal injuries and or death from occurring. This disregards the case where the negligence of the defendant to play his or her duty of care resulted into the harm and unless such conduct of the defendant was not too remote from the defendant’s negligent conducts11.
The problem with such an objective approach is that individuals get rare opportunities and guidance on how and when their conducts so considered as negligent may amount to harm. Irrespective of this problem, the high court considers that such causation entangles two main aspects12.
The first aspect is the factual causation while the second is the causal causation. The high court has established laws to deal with issues of causation both subjectively and objectively. Hence, further discussions of these aspects are beyond the scope of this paper. Further examples of objective approaches to judgments that are disguised as subjective value judgments are exemplified by Gaudron in Bennett v Minister for Community Welfare (1992) 176 CLR 408, 420-421.
In fact, Gaudron reckons, “in the absence of evidence that the breach had no effect or that the injury would have occurred even if the duty had been performed, it will be taken that the breach of the common law duty of care caused or materially contributed to the injury”13.
From this judgment, it is clear that the impact of objective value judgment in negligence claims is to ensure that the onus of proof in matters of causation are shifted to the defendants the moment the court establishes that the duty of care on the part of the plaintiff was breached.
This also applies if the plaintiff suffered injuries that were foreseeable. This principle is widely approved by the high court in its recent settled cases. Its impact is to alter the traditional law relating to the causation of events leading to breach of duty of care coupled with having an immense potential in expanding the scope of the claims of negligence14.
In conclusion, in settlement of claims of negligence, the approach followed by the Australian high court is to proof that the defendant behaved in a style that would have caused injury, damage, or harm to the plaintiff. For the claim to hold, the paper has discussed that a consideration does not proof that the defendant failed to act to prevent the risk from occurring hence causing the claimed damage by the plaintiff.
Rather, a consideration goes to proof that a reasonable person could have foreseen such risks. This implies that the court seeks to proof that the defendant acted in an unreasonable manner so that he or she caused harm on the plaintiff part. In this light, the paper has argued that the Australian courts judges theoretically apply an ‘objective test’ to disguise a ‘subjective’ value judgment in claims relating to negligence.
The stand holds since the burden of the proof rests on the defendant to proof beyond any reasonable doubt that he was reasonable in acting in a manner that caused harm, as claimed by the plaintiff, or he never acted in such a manner.
Australian Human Rights Commission, Fact Sheet 1: Defining Human Rights (2012) <https://www.humanrights.gov.au/our-work/education/human-rights-explained-fact-sheet-1-defining-human-rights> at 1 August 2012.
Bennett v Minister for Community Welfare (1992) 176 CLR 408, 420-421.
Brisbane Authority v Taylor (1996) 70 ALJR 866 at 871-2.
Cook v Cook (1986) 162 CLR 376 at 390 (Mason, Wilson, Deane and Dawson JJ).
Deakin Simon and Angus Johnston, Markesinis’ and Deakin’s tort law (Oxford University Press, 2003).
Feinman, Jay, Law 101 (Oxford University Press, 2010).
Kirby Michael, ‘Is legal history now ancient history’ (2009) 83 Australian Law Journal 31.
McGlone, Frances and Amanda Stickley, Torts Law: Accessible and well-balanced overview of the law of torts in Australia (New Jersey, 2007).
Victorian Law Reform Commission, Civil justice Review (Report No 14, 2008).
Vines, Prue, Law and Justice in Australia- foundations of the Legal System (Oxford University press, 2009).
Wyong Shire Council v Shirt (1980) 146 CLR 40.
1 Australian Human Rights Commission, Fact Sheet 1: Defining Human Rights (2012).
2 Prue Vines, Law and Justice in Australia- foundations of the Legal System (2009) 10-37.
3 Brisbane Authority v Taylor (1996) 70 ALJR 866 at 871-2).
4 Jay Feinman, Law 101 (2010) 80-95.
5 Taylor (1996) 70 ALJR 866.
6 Simon Deakin and Angus Johnston, Markesinis’ and Deakin’s tort law (2003) 2-10.
7 Frances McGlone and Amanda Stickley, Torts Law: Accessible and well-balanced overview of the law of torts in Australia (2007) 23.
8 Cook (1986) 162 CLR 376.
9 McGlone and Stickley, above n 1.
10 Wyong Shire Council v Shirt (1980) 146 CLR 40.
11 Victorian Law Reform Commission, Civil justice Review (2008) 14.
12 Cook v Cook (1986) 162 CLR 376 at 390.
13 Bennett (1992) 176 CLR 408, 420-421.
14 Michael Kirby, ‘Is legal history now ancient history’ (2009) 83 Australian Law Journal 31.