Jimmy owns and operates a Jumping Castle attraction and a fairy-floss maker, which he hires out to street fairs, school fetes and the like. He brings all the equipment to the agreed site, sets up and operates the attractions with the help of a casual employee. The Jumping Castle is chiefly attractive to, but not restricted to, children up to the age of twelve, and they use their judgement to refuse entry if a particular person is too heavy or too tall to use the structure safely. On this day, during the final hour of the street fair, Jimmy allows his employee to go home, as he believes he will be able to manage for the rest of the time now that things have quietened down. While Jimmy is making fairy-floss for a customer, Harry, a tall 16 year old, climbs, unseen by Jimmy, into the Castle and starts jumping very energetically, bouncing from walls, floor and ceiling of the structure. During a bounce, Harry's hand slips into the space between wall and ceiling and catches on a strip of metal which forms part of the external bracing. Shorter users of the structure would not be able to reach this high, and Jimmy would not have allowed Harry to enter the Castle. Harry loses his little finger. Harry has come to see you for advice. He would like to sue Jimmy for negligence. Has Jimmy breached his duty of care to Harry? Issue Has Jimmy breached his duty of care to Harry? Rule -If the defendant could have avoided the risk of injury by taking some relatively simple precautions, their failure to take those precautions is likely to be a breach of duty. But if the cost of taking precautions is out of proportion with the risk of injury they are less likely to have breached their duty by failing to take those precautions. Latimer AEC Ltd [1953] AC 643 -In deciding that a breach of duty caused a particular harm, the court must be satisfied that the breach of duty was a necessary condition of the occurrence of the harm and it is appropriate for the scope of liability to extend to the harm so caused. Section 5D Civil Liability Act 2002 (NSW). xxxxxx -The defendant owes a duty of care to those people he or she can reasonably foresee are likely to be affected by the defendant's conduct, Donohue v Stevenson (1932) AC 562. -In deciding whether or not a reasonable person would have taken precautions against a risk of harm, Section 5B (2) Civil Liability Act 2002 (NSW) obliges the court to consider: the probability that harm would happen if precautions were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm and the social utility of the activity creating the risk of harm. -If the risk of injury is so small that a reasonable person would not have done anything about it, the defendant has not breached their duty of care, Bolton v Stone [1951] AC 150. -A salient feature of the case that may be taken into account by the court when determining whether a duty of care is owed includes the control the defendant has over the situation and the relative vulnerability of the plaintiff, Harriton v Stephens (2006) 226 CLR 52 63 -The defendant is not liable for harm suffered by the plaintiff for the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. Section 5K to 5L, Civil Liability Act 2002 (NSW). Xxxx -A person will not breach their duty to take reasonable precautions against a risk of harm unless the risk was foreseeable; the risk was not insignificant and in the circumstances a reasonable person would have taken those precautions. Section 5B(1) Civil Liability Act 2002 (NSW). Apply The defendant owes a duty of care to those people he or she can reasonably foresee are likely to be affected by the defendant's conduct, Donohue v Stevenson (1932) AC 562. Does Jimmy owe a Duty of Care to Harry? A salient feature of the case that may be taken into account by the court when determining whether a duty of care is owed includes the control the defendant has over the situation and the relative vulnerability of the plaintiff, Harriton v Stephens (2006) 226 CLR 52 63 Was Jimmy in control of the situation? How vulnerable was Harry in the Situation? A person will not breach their duty to take reasonable precautions against a risk of harm unless the risk was foreseeable; the risk was not insignificant and in the circumstances a reasonable person would have taken those precautions. Section 5B(1) Civil Liability Act 2002 (NSW). Was the risk of Harry losing a finger foreseeable, not insignificant, and worth taking precaution by a reasonable person? In deciding whether or not a reasonable person would have taken precautions against a risk of harm, Section 5B (2) Civil Liability Act 2002 (NSW) obliges the court to consider: the probability that harm would happen if precautions were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm and the social utility of the activity creating the risk of harm. What are the probabilities of Harry losing a finger if precautions were not taken? How serious is Harry losing his finger? How burdensome is for Jimmy to take precautions to avoid Harry losing his finger? What is the social utility of Jimmy's activity? If the risk of injury is so small that a reasonable person would not have done anything about it, the defendant has not breached their duty of care, Bolton v Stone [1951] AC 150. Was the risk of Harry losing his finger too small that a reasonable person would not have taken any precautions? If the defendant could have avoided the risk of injury by taking some relatively simple precautions, their failure to take those precautions is likely to be a breach of duty. But if the cost of taking precautions is out of proportion with the risk of injury they are less likely to have breached their duty by failing to take those precautions. Latimer AEC Ltd [1953] AC 643 How costly would have been for Jimmy to take precautions to avoid the risk of Harry losing his finger? Conclusion - Jimmy has/has not breached his Duty of Care to Harry... - So, Harry is/is not entitled to compensation for... Please help complete the IRAC answer, matching apply and conclusion