Negligence, Essentials of Action, Standard of Care

Negligence, Essentials of Action, Standard of Care

Recent Developments 2006


Hanlon v Hanlon [2006] TASSC 1

Negligence, essentials of action, standard of care

(Relevance – Chapter 5: The Tort of negligence)

In Hanlon v Hanlon [2006] TASSC 1, the defendant driver of a motor boat had made a sharp turn to starboard when returning to shore with the plaintiff’s husband and two of her children, causing the boat to tip violently to port, throwing her husband and sons into the water. The husband and one son drowned. No one was wearing a life jacket.

The plaintiff’s case was that the death of her husband and son was caused by the negligent driving of the defendant.

It was accepted by Underwood CJ that a driver of a boat, just like the driver of a car, owes his or her passengers a duty of care [para 59].

As to the question of breach, Underwood CJ applied the test from Wyong Shire Council v Shirt (1979) 146 CLR 40 at 47 and approved by the High Court in Vairy v Wyong Shire Council [2005] HCA 62, and came to the conclusion that a reasonable person in the defendant’s position would have foreseen that his conduct, i.e. driving at excessive speed on the lake, could involve risk of injury to his passengers that was not far fetched or fanciful. Having foreseen that there was a risk, the reasonable man would not have executed such a sharp turn, thereby easily avoiding the risk.

With respect to the issue of contributory negligence, the defendant had argued that the deceased’s death was caused by, or contributed to by the negligence of the deceased in failing to wear a life jacket. Underwood CJ noted that contributory negligence is only concerned with those acts and/or omissions of the deceased that contributed to his death and that the onus of proof lies with the defendant [para 79]. To succeed in his claim, the defendant had to prove that it was more likely than not that the deceaseds’ failure to wear safety jackets contributed to their death. As the water temperature at the lake was only 50°C, Underwood CJ was not prepared to accept the inference put forward by the defendant that had the plaintiff been wearing a life jacket he might have survived. Another inference was that the rescuers would not have reached the deceased before he died from hypothermia even if he had been wearing a life jacket. As Underwood CJ could not say that one inference was more probable than another, the defence of contributory negligence failed [para 84].

While a detailed examination of how damages are assessed is outside the scope of most business courses, the treatment of damages by Underwood CJ in this case is quite interesting. While the case is under Tasmanian law, the approach to the claim for psychiatric damages, as well as for general damages, contains a useful methodology in the assessment of damages.