Phillip is a builder and he specializes in building post-modern concrete houses. He has a number of employees, including concrete truck operators, welders, electricians and plumbers. Nancy works for Phillip as a concrete truck operator and driller. She and Phillip met a number of years ago when they both worked as sound engineers for rock bands and Nancy lost her hearing in her left ear when a rock guitarist unexpectedly played a very loud guitar solo.

When working on site building houses, Phillip provides the standard safety equipment to his workers, including gloves, eyeglasses, and earmuffs, and has a work safety plan in place for all of his building sites, although Phillip does not actively check that workers are complying.

The current job requires Nancy to do a lot of concrete pouring and welding, both of which are very noisy and dirty jobs. In order to make it more convenient to communicate with other workers on site, Nancy does not wear her earmuffs. When two large steel beams fall and crash together right next to Nancy's head the noise is so loud it damages her right eardrum, leaving her completely deaf.

Phillip is worried about his liability. Assume that Phillip owes Nancy a duty of care. Based on this assumption, advise him in detail of how the court will determine whether, or not, he has breached that duty of care.

Refer to relevant court cases in your analysis.