First Principles of Business Law

The tort of Negligence

4.1.The foreseeablity of harm

4.1.3. How is foreseeability of harm determined?




How do the courts decide, in particular cases, whether something is foreseeable or not? There are two aspects of this question to keep in mind.

Firstly, the question whether harm is foreseeable is determined objectively. The courts have developed the notion of a 'reasonable person' (once called a 'reasonable man' and ask whether such a person would have foreseen the danger in the circumstances.

The 'reasonable man' is also sometimes called 'the man on the Clapham omnibus' or 'the hypothetical person on a hypothetical Bondi tram' to suggest an average, ordinary person of no special distinction.

However, the concept of a 'reasonable person' cannot be a wholly objective one. In defining a reasonable person, the court will consider what it a reasonable person in the position of the defendant would foresee. This means taking into account any relevant knowledge, capacity for care and foresight that the particular defendant had.

 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383.

Secondly, an event must be foreseen as 'not unlikely to occur' rather than merely as a theoretical possibility. Thus it need not be probable that the event will occur. But it must be shown that there is a 'real risk' that what is foreseeable will happen if due care is not taken to prevent it.

Caterson v Commissioner for Railways (1973) 128 CLR 99.

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