Court Case: Duty Of Care

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i) The plaintiff has a general fear of dogs. The defendants own a bullmastiff-kelpie dog. They invited the plaintiff and her companions into their house while it was inside. The plaintiff fled from the house as soon as she saw the dog move towards her, although it did not react to her in an aggressive manner. Her quick retreat caused her to slip and fall on the patio, sustaining personal injuries. ii) The primary judge of the district court concluded that the risk was not foreseeable and found in favour of the defendants. The plaintiff appeals on the grounds that the primary judge erred by failing to determine that: (a) the appellant’s response was foreseeable and reasonable, (b) the risk was significant, and (c) the respondents should have …show more content…

Due to the proximity of relationship satisfying the “neighbour” test, a recognised duty of care exists between an occupier and visitor . Therefore, as the respondents were the occupiers of the premises, they owed a duty of care to the appellant, provided that the appellant was using reasonable care for her own safety. This case raises the issue of negligence and whether or not the respondents breached the duty of care they owed to the appellant.

Just because there were measures that someone could have taken to avoid the risk, it does not necessarily mean that they have breached their duty of care . The legal requirements for there to be a breach of duty of care are that: (a) the risk must be foreseeable and (b) not insignificant, and (c) a reasonable person in the defendant’s position would have taken precautions to prevent the risk in that situation . Whether or not the legal requirements were satisfied must be determined prospectively , not in hindsight …show more content…

Furthermore, as the respondents were prepared to let the appellant and her companions (one of whom was a child) into the lounge room, it can be inferred that the respondents thought the dog posed no risk to the entrants. Therefore it was unreasonable to expect the respondents to have foreseen that there was a risk the appellant would flee from the house when she saw the dog. Thus, it was not reasonable to expect the respondents to have foreseen that a visitor may have a general fear of dogs, or that the appellant would have reacted in that

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