can you tell me am i on the right track

Issue

Was it negligent on the part of Brisbane City Council (BCC) committed the tort of negligence against David?

Law

Schiller v. Mulgrave Shire Council(1972) 129 C.L.R. 116at120

Wyong Shire Council v. Shirt(1980) 146 C.L.R. 40at48

Australian Safeway Stores Pty. Ltd. v. Zaluzna (1987) 162 C.L.R. 479

Graham Barclay Oysters Pty Ltd v Ryan: Ryan v Great Lakes Council: New South Wales v Ryan (2002) 77 ALJR 183

Overseas Tankships v Mort (1961)

Yates v Jones (1990)

TIMBS v SHOALHAVEN CITY COUNCIL (2004) NSWCA 8.

Under the Queensland Civil Liability Act 2003, There are 3 issues that need to be established to successfully sue a Defendant in the tort of negligence, The Plaintiff must establish:

A duty of care must be owed by the Defendant; The Defendant has breached the duty of care; Thebreach has caused the plaintiff to suffer reasonably foreseeable harm.

Requirement 1: Duty of Care

The responsibility is on the Plaintiff to establish the existence of the duty of care. Graham Barclay Oysters Pty Ltd v Ryan: Ryan v Great Lakes Council: New South Wales v Ryan (2002) 77 ALJR 183. Established the 'Neighbour principle':

You must take reasonable care to avoid acts or lapses which you can reasonably be foreseen and would likely injure your neighbour (section 8 Civil Liability Act). Persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation Which then led to later case decisions that identified a number of relationships which, by law, automatically owe a duty of care.

An occupier of premises owes a duty of care to all persons entering the premises to ensure that the premises are safe. Australian Safeway Stores Pty Ltd v Zaluzna (1987) Nagle v Rottnest Island Authority (1993) 177 CLR 423

Requirement 2: Breach of Duty

(s9 Civil Liability Act): Section 9(1): A defendant breaches their duty of care if:

The risk was foreseeable (that is, it is a risk that they knew about or should reasonably have known about); The risk was not insignificant; A reasonable persion in their position would have taken the precautions.

Section 9(2): To determine what a reasonable person would do, the Court will take into account: The possibility of harm; The probable seriousness of the harm;The burden of taking safety measures;The social function of the defendant's endeavors.

Requirement 3: Harm Caused by Breach

(s11(1) (a) Civil Liability Act): The defendant is only liable for the harm if:

The "but for" inquiry is a hypothetical, counterfactual process. It asks the defendant of fact to determine whether the harm would have come to the plaintiff, had the defendant not acted (or failed to act) in breach of duty. Yates v Jones (1990). Scope of liability test is appropriate for the scope of the liability of the person in breach to extend to the harm as a result caused. Overseas Tankships v Mort (1961)

Application

BCC does owe David a duty of care because an occupier of premises (Liability of public authorities) Phillips v Daly (1989) owes a duty of care to all persons entering the premises to ensure that the premises are safe.

BCC did breach their duty of care because the risk was foreseeable because they knew about the issues with the trees as they had a risk program in place by removing and pruning all hazardous trees from the area, with the program in place the BCC identified and removed some of the rotten trees within the area. However, the Forestry evidence did reveal that the risk of falling trees was widespread, with all types of trees, the tree that injured David was a wattle tree that was not rotten but fell due to high winds, however, there were numerous complaints made from the public about the issue of trees falling over. TIMBS v SHOALHAVEN CITY COUNCIL (2004) NSWCA 8.

As BCC had already been informed of the risks of falling trees within the area and had not got around to removing or pruning all of the trees. b) The risk was not significant because the probability of the tree falling and causing serious harm was high. Even higher with strong winds c) A reasonable person in BCC positions would have taken the precautions to either finish the risk program or inform potential visitors to this reserve are warned of the risk of falling trees or limbs, and visitors should not camp under or close to trees nor remain near them under conditions of high wind or rain Energy v Harper(2000) 1 VR 133

In regards to the term of 'causation', the issue to consider is that David was seriously injured to the point of being hospitalised and not being able to work for 6 months and now has a reduced capacity to work

Questions to consider: Were David's medical costs and time off work caused by BCC's breach of duty? But for BCC not finishing off the project or placing warning signs, David would not have sustained the injuries, would not have incurred treatment costs for the injuries and would not have missed 6 months of work with and further reduced capacity of work. This is within the scope of liability for BCC's because a reasonable person in his position would be able to foresee that camping within an area with risk to trees falling and high winds can injure someone camping even if its not directly under the trees. Energy v Harper(2000) 1 VR 133 (2004)

David could also be able to make a claim under part 3 assesment of damanages s54(2)he has up to 3 years to make this

Conclusion:

On the part of the BCC a breach of the duty of care it owed David in not erecting an appropriate sign or signs warning of thedangerof hazardous trees in the reserve, particularly in certain weather conditions, and, secondly, in finding that the David's injuries were caused by the absence of any such sign or signs.