Torts


 * What is a Tort?**

A tort is a civil wrong. It is something that you can pursue that is personal, not criminal.

• That (wrong) is based on a breach of a duty imposed by law • Which (breach) gives rise to a (personal) civil right of action for a remedy not exclusive to another area of law


 * The Aims of Tort Law**

To provide compensation to P for the injury, loss or damage they suffered as a result of the tort as best as money can; in some (rare) cases to provide additional damages as a punishment to deter future potential offenders.

• Loss distribution: shifting losses from victims to perpetrators • Compensation: Through the award of (pecuniary) damages

– The object of compensation is to place the victim in the position he/she was before the tort was committed.

• Punishment: through exemplary or punitive damages. This is a secondary aim.


 * The difference between a Tort and a Crime.**

• A crime is __public /community__ wrong that gives rise to sanctions usually designated in a specified code. A tort is a civil ‘private’ wrong. • Action in criminal law is __usually brought by the state or the Crown__. Tort actions are usually brought by the victims of the tort. • The principal objective in criminal law is __punishment__. In torts, it is __compensation__ • Standard of Proof Criminal law: __beyond reasonable doubt__ Torts: on the __balance of probabilities__


 * Interests Protected in Tort Law**

• Personal security – Trespass – Negligence

• Reputation – Defamation

• Property – Trespass – Conversion

• Economic and financial interests


 * Sources of Tort Law**

Common Law – Developed through courts – Donoghue and Stevenson

Statute Law – Thematic Statutes – Motor Accidents Compensation Act 1999 (NSW) Workers Compensation Act 1987 (NSW) Victims Support and Rehabilitation Act 1996 (NSW)

- Generic Statutes – The Civil Liability Act (NSW) 2002

Statute law is more effective for law reform


 * Difference between a Tort and a Breach of Contract**

Murphy J, in the Supreme Court of Victoria, said:

“Torts, or wrongs, are breaches of a duty owed generally to one’s fellow subjects, the duty being imposed by law and not as a consequence of duties fixed by the parties themselves”.
 * //**LAW OF TORTS**// || //**CONTRACT LAW**// ||
 * Duties owed to whole world || Duties owed to contracting parties ||
 * Duties imposed by law || Duties determined by parties ||
 * Elements of tort law must be proven - conduct crucial || Breach of terms of contract – conduct of parties not crucial ||
 * Unliquidated damages || Liquidated damages ||


 * Similarities between a Tort and a Breach of Contract**

• The aims of the law of torts and contract law are similar. • Both torts and breach of contract give rise to civil suits.

Difference between a Tort and Criminal Law

• The incidence of liability varies depending on whether the wrongdoer is sued in tort or prosecuted for a crime.
 * **//LAW OF TORTS//** || **//CRIMINAL LAW//** ||
 * Civil “private” wrong || Criminal “public/community” wrong gives rise to sanctions usually designated in a specific code ||
 * Objective - compensation || Objective - punishment ||
 * Brought by victim of the tort || Brought by the Crown ||
 * Balance of probabilities || Beyond reasonable doubt ||
 * Protect the individual || Protect the public at large – punish those who act contrary to its dictates ||

**Intentional Torts**

Different types of trespass – identify this first.


 * Trespass to PERSON**

• Assault • Battery • False Imprisonment


 * Trespass to PROPERTY**

• Land • Chattels/Goods

What is Tresspass? Four elements of trespass.


 * “__Intentional__ or __negligent__ act of D which __directly__ causes an injury to the __P or his/her property__ __without lawful justification__”**

These are the three common elements:

• Intentional/negligent act of D • Directly causes injury • Without lawful justification

The fourth element : + THE “X” FACTOR = SPECIFIC FORM OF TRESPASS (The x factor defines the type of trespass).


 * Injury in Tresspas**

• Injury = a breach of right, not necessarily actual damage • Trespass requires only proof of injury not actual damage

The __intentional__ or __negligent act__ of D which __directly__ causes a //physical interference// with the body of P __without lawful justification__ (Intentional/negligent + Direct + Unlawful + //physical interference)// Three elements + X Factor.
 * Battery**

• The distinguishing element: //physical interference// with P’s body


 * Elements of Battery**

The Intentional act in battery

• Without intention there is no liability • The intentional act = basic willful act + the consequences.


 * Capacity to form the intent**

Defendant is deemed capable of forming intent if he/she understands the nature of (‘intended’) his/her act.

• Infants - **Hart v A. G. of Tasmania** (infant 6y.o. cutting another infant with razor blade) • Lunatics - **Morris v Marsden [1952] 1 All ER 925** [Defendant was a catatonic skitzophrenic and whilst he did not know what he was doing was wrong (bashing the P) he understood that nature and character of what he was doing. LJ Stable said “I have come to the conclusion that knowledge of wrongdoing is immaterial and that where there is a capacity to know the nature and the _ of the act that is sufficient although the mind controlling the hand is diseased.”


 * The act must cause physical interference**

The essence of the tort is the protection of the person of the Plaintiff. Defendant’s act short of physical contact is therefore not a battery. Hostility in the act is not essential. • The least touching of another could be battery - **Cole v Turner (1704) dicta per Holt CJ** • ‘The fundamental principle, plain and incontestable, is that every person’s body is inviolate’ (per Goff LJ, Collins v Wilcock [1984])


 * The nature of physical interference**

• **Rixon v Star City Casino [2001] NSWCA 265** (D places hand on P’s shoulder to attract his attention; no battery) • **Collins v Wilcock** (Police officer holds D’s arm with a view to restraining her when D declines to answer questions and begins to walk away; battery) • Platt v Nutt (1988) - P failed to prove that her injury was a direct result of D’s actions – not a great case to read – her version was not believed (jury case)


 * The injury must be caused directly**

Injury should be immediate:

• **Scott v Shepherd (1773)** - Lit squib/fireworks in market place • **Hutchins v Maughan [1947]** - poisoned bait left for dog //Hutchins v Maughan// [1947] VLR 131
 * • Southport Corporation v Esso Petroleum Co Ltd [1954]** - Spilt oil on P’s beach

The act must be without lawful justification

Consent is Lawful justification. Consent must be freely given by the P if P is able to understand the nature of the act. Lawful justification includes the lawful act of law enforcement officers - Wilson v Marshal [1982] - D accused of assaulting police officer, held officer’s conduct not lawful


 * Assault**

The __intentional/negligent__ act or threat of D which __directly__ places P in //reasonable apprehension of an imminent physical interference// with his or her person or of someone under his or her control __without lawful justification__. Intentional + directly + unlawful + (X Factor – reasonable apprehension of imminent physical interference) = assault.
 * Elements of Assault**

There must be a direct threat:

– Hall v Fonceca - Threat by P who shook hand in front of D’s face in an argument //Hall v Fonceca// [1983] WAR 309 In general, mere words are not actionable – Barton v Armstrong [1969] //* Barton v Armstrong// [1969] 2 NSWLR 451 P gets a phone call saying stop doing what you are doing there is a bomb under you right now. P hears this, fears for his life. He assumes immediately it is his sworn enemy (the other lawyer). So he sues for, amongst other things, assault. D knew the law well, to that point he said “mere words cannot hurt – it’s a frivolous case.” Brings a notice of motion for dismissal.

In general, conditional threats are not actionable

– Tuberville v Savage (1669) (Assize – courts of Assize “If it were not Assize time, I would not take such language from you”) [google for digest] – Police v Greaves [1964] – Rozsa v Samuels (Taxi driver) **//Rozsa v Samuels// [1969] SASR 205** D drives to the front of a Taxi queue. Drummond, driver of another taxi, leaves his car and tells D off. D replied "I am here and I am staying here." Drummond threatened to puch D in the head. D produced a table-knife from underneath his dashwords, saying "I will cut you to bits if you try it". As he started to get out of his taxi, Drummond quickly drove away. HELD that D's threat was beyond the reasonable bounds of self-defence, which proclaims that one must turn to all means necessary before resolving to force. Thus, D was charged with assault.

Assault //Hall v Fonceca// [1983] WAR 309 //* Barton v Armstrong// [1969] 2 NSWLR 451 //Zanker v Vartzokas// [1988) 34 Crim R 11 //Burton v Davies// [1953] St Rep. Qd 26 The apprehension must be reasonable; the test is objective

The interference must be imminent

– Rozsa v Samuels – Police v Greaves – Hall v Fonceca [1983] – Zanker v Vartzokas (1988) - P jumps out of a moving van to escape from D’s unwanted lift. Got a lift and then the D offered to pay her for sex. When she says no, he says “I’ll take you to my mates house…” she jumps out of the car. Reasonably apprehensive? Yes – he just asked her for sex and said he’s going to take her to his mates house. How imminent? Where is his mates house? In a speeding car when he wont stop and let her out? It is imminent because there is no reasonable means of escape.


 * False Imprisonment**

The __intentional/negligent__ act of D which __directly__ causes the //total restraint// of P and thereby confines him/her to a delimited area without lawful justification.

Intentional + directly + unlawful + (X Factor – total restraint.) = assault.


 * Elements of False Imprisonment**

• Must be intentional • Fault or malice is irrelevant. • The imprisonment must amount to a total restraint of the liberty of the person; Bird v Jones (1845) - passage over bridge; Robinson v The Balmain New Ferry Co [1910] - D refuses to allow P to leave unless P pays fare Robinson v The Balmain New Ferry Co [1910] //The Balmain New Ferry Co v Robertson// (1906) 4 CLR 379 – goes through the turnstyle at the quay to catch the ferry, pays a penny to get through. Misses the ferry, wants to get out – but has to pay a penny. Claims, among other things, false imprisonment. He could have got out (e.g. paid, swam, waited).
 * Total Restraint**

• Partial restraints may be the subject of an action on the case, on proof of damage: Wright v Wilson (1699). • Restraint may be total where D subjects P to his/her authority with no option to leave; Symes v Mahon [1992]; //Symes v Mahon// [1922] SASR 447 Police officer in Adelaide, asks the guy to come to town with him. Catches the train. Myer Stores v Soo [1991] Was asked by the store detectives to stay in an office while they made enquiries. Did she submit to the store detectives authority? Yes, got 75 pounds for being held unlawfully for an hour. See the following Cases: Cowell v. Corrective Services Commissioner of NSW (1988) Aust. Torts Reporter ¶81-197. Louis v. The Commonwealth of Australia 87 FLR 277. Lippl v. Haines & Another (1989) Aust. Torts Reporter ¶80-302; (1989) 18 NSWLR 620.
 * Forms of False Imprisonment**

• There is no false imprisonment where one voluntarily submits to a form of restraint –The Balmain Ferry Co v Robertson (1906) - D voluntarily submits to restraint by refusing to pay the required fare • Where there is no volition for restraint, the confinement may be false imprisonment – Bahner v Marwest Hotels Co Ltd (1970) • A precise place of imprisonment is not important. The area of confinement must have a boundary and the boundary must be fixed by the defendant. • If a person can only escape confinement at the risk of personal injury or if it is otherwise unreasonable to attempt escape, it constitutes the tort of false imprisonment; Burton v Davies [1953] - D refuses to allow P out of the car. If a means of escape exists but this is not apparent, the means will not be regarded as reasonable and an action for false imprisonment may lie; Attorney-General v Niania [1994] (HC).
 * Voluntary Cases**

• The barriers need not be physical. Supreme Court of SA in Symes v Mahon [1992] made the point that, in cases of false imprisonment, where there has been no application of physical force to the person alleging the imprisonment, there must be evidence of complete submission by that person to the control of the other party. Words can constitute false imprisonment.
 * Words and False Imprisonment**

The knowledge of the P at the moment of restraint is not essential. – //Meering// v //Graham White Aviation// – //Murray// v //Ministry of Defense// • Knowledge of confinement is not essential; Meering v Grahame-White Aviation Co Ltd (1919); Murray v Ministry of Defense [1987]
 * Knowledge in False Imprisonment**
 * Meering** was asked to stay in a room. “Works” police (private police) are outside the door, instructed to grab him if he leaves the room. He doesn’t make a run for it. He gets paid for the hour of work he was in the room. Court says: doesn’t matter that he didn’t know. His liberty was deprived for the time that he was there.
 * Murray** IRA suspect, middle of the night, pull him out of his house and search every inch of the house. Was left standing outside his house for half an hour before he knew what was going on (they then took him to a military base, which WAS lawful).

• No minimum time limit is specified for the success of the action.

• An imprisonment which begins lawfully may later become a false imprisonment even though there is no further act on the part of the defendant. In Cowell v Corrective Services Commission of New South Wales (1988) the defendant was held liable for false imprisonment by keeping a prisoner in custody beyond the date upon which he was entitled to be released as a result of remissions which he had earned.

Dickenson v Waters (1931) 31 SR (NSW) 593
 * Who is liable? The aggrieved citizen who called, or the police officer?**

• In each case, the issue is whether the police in making the arrest acted independently or as the agent of the citizen who promoted and caused the arrest; Watson v Marshall and Cade (1971) 124 CLR 621 Must depend on the “overriding necessity for the protection of himself and others”per Harvery J //In re Hawke (1923) 40 WN (NSW) 58// There are criteria, including seeing a doctor etc. in order to admit a mentally ill person. • False imprisonment is actionable per se o False imprisonment is actionable //per se// o The failure to prove any actual financial loss does not mean that the plaintiff should recover nothing. The damages are at large. An interference with personal liberty even for a short period is not a trivial wrong. The injury to the plaintiff's dignity and to his feelings can be taken into account in assessing damages (//Watson v Marshall and Cade// )
 * Dickenson v Waters Ltd (1931);**
 * Bahner v Marwest Hotels Co Ltd (1970)**
 * False Imprisonment and the mentally ill**

(c) False imprisonment

Bird v Jones (1845) 7 QB 724 Ruddock v Vadarlis (2001) FCR 491 The Balmain New Ferry Co v Robertson (1906) 4 CLR 379 Symes v Mahon [1922] SASR 447 Dickenson v Waters (1931) 31 SR (NSW) 593

Herd v Weardale Steel Coke and Coal Co [1915] AC 67 Murray v Ministry of Defence [1988] 1 WLR 692

**Trespass to Land**

It is a form of infringement on property rights.

The intentional/negligent act of D which directly interferes with P’s exclusive possession of the land without lawful justification. Intentional + Direct + Unlawful + X-factor “exclusive possession”.

Common law (traditional) – land was defined as what was fixed to the land, the air space above the land up to the sky and the soil content beneath the land down to its depths.

Modern law – allows landowner to possess, and maintain an action in trespass in relation to, the airspace above the land or the subsurface beneath to the extent that is reasonably necessary for the enjoyment of the land or the extent to which control can be exercised.

· Cujus est solum ejus est usque ad coelum et inferos à ‘the rights in the soil extend to heaven and hell’ – old latin maxim.-


 * Bernstein of Leigh v Skyways & General Ltd** - Skyway (D) had an idea for a business – why don’t we fly over their properties and take pictures of their homes – then we will sell them photos of their own properties – so they went to Bernstein and tried to sell him a photo of his house – he basically told them to piss off and that he “owned the heavens” above his property – he sued in trespass over the issue and the court said, sorry, no go! Primarily because there was no support for his view that his rights extended right up in the sky to the heavens – they said you restrict the height so as is necessary “for the ordinary use and enjoyment of the land and structure upon it” – so essentially the plane flying over did not impact the enjoyment or ordinary use of the land.

Do not own the sky – “ordinary use and enjoyment of the land…”


 * Kelson case v Imperial Tobacco 1957** - two commercial premises next to each other – the sign of one shop overhung the neighbours premises by 20 cm – this was held to be trespass because it interfered with the ordinary use and enjoyment of the adjoining property as it partially blocked customers viewing the neighbours shop sign etc.

Overhanging sign interferes with the ordinary use and enjoyment of the adjoining property.

It is therefore trespass if it interferes with the ordinary use and enjoyment of the property.

• //Conveyancing Act// 1919 s 88K (NSW) Battleaxe block as an example. Easement is an agreement to use someone elses land (e.g. right of way) - driveway, permission etc. 88k.
 * Statutory Easements**

Adequate compensation for easements: //Wengarin Pty Ltd v Byron Shire Council// [1999] NSWSC 485


 * Nature of D’s act**

The act must constitute some physical interference which disturbs P’s exclusive possession of the land - Built a tower next door to watch the races and call them over the radio. Not interfering with the land, only interfering with the business.
 * Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937)**


 * //Bathurst City Council v Saban//**
 * //Lincoln Hunt v Willesse//**


 * Nature of P’s interest in the land**

P must have exclusive possession of the land at the time of the interference. Exclusive possession refers to the right to use or hold the land to the exclusion of all others. Exclusive possession is distinct from ownership. Ownership refers to title in the land

Possession may be immediate or constructive, depending on the material possessed.

• A co-owner cannot be liable in trespass in respect of the land he/she owns; but this is debatable where the “trespassing” co-owner is not in possession – **Greig v Greig** Greig v Greig – one brother is in possession, the other is not in possession. • A co-possessor can maintain an action against a trespasser – **Coles Smith v Smith & Ors** – • A trespasser/squatter in exclusive possession can maintain an action against any other trespasser

• Licensee is one who has the permission of P to enter or use land belonging to P • A licensee is a party not in possession, and can therefore not sue in trespass • Licensee for value is entitled to sue - Vaughan v Shire of Benalla (1891) – licensee sued for trespass • De facto possession sufficient to sue for trespass – Newington v Windeyer (1985)
 * The position of licensees**

• Unless authorized by law, police officers have no special right of entry into any premises without consent of P ( //Halliday v Neville//) • A police officer charged with the duty of serving a summons must obtain the consent of the party in possession (//Plenty v. Dillion// )
 * The position of police officers**


 * Title to land is important because:**

Ocean Estates v Pinder [1969] – owners had free hold title to land but their possessory acts in relation to the land had been exiguous, succeeded in trespass against the defendant.

Delaney v TP Smith & Co [1946] – owner of land who takes steps to evict its present possessor and regain possession does not commit trespass to land.


 * Trespass to Highway**

Highway – public right of way over private land. Misuse of highway will lead to action taken by adjacent landowners or highway authority – Harrison v Duke of Rutland [1883]

Just tertii (right to a third party) is not a defence to one who has disturbed P’s actual possession of the land; Davison v Gent (1897) 156 ER 1400

Act of D must be caused directly; Southport Corp v Esso Petroleum Co Ltd [1954] (discharging of oil which was washed to the shores was too indirect to be trespass)

Watson v Cowen [1959]; proven that although damage caused was not a direct consequences of D’s actions it was a natural and probable consequence.

Where there is no entry on land, there can be no trespass; Bathurst CC v Saban (1985)

Entry under the terms of a license express or implied is not trespass. Burden of showing the existence of a license to enter rests on the entrant.

A person who enters the land for a purpose not covered by the license is a trespasser, even though a license to enter exists; Barker v The Queen (1983)

A bare license may be revoked at any time and the licensee required leaving the premises. Should the licensee fail to do so within a reasonable time, he/she becomes a trespasser.


 * Trespass after lawful entry by licensee**

Bond v Kelly (1873); cutting more than the permitted amount of timber of land which he had been permitted to enter – trespass held.

One who entered land under authority of law might become a trespasser ab initio, that is from the moment of entering because of actions committed subsequent to entry which were an abuse of the purpose of that entry.

Applied where the right to enter was conferred by law; acts of misfeasance committed on the land, not to non-misfeasance; where some ground exists justifying an original lawful entry despite latter acts of trespass committed on the premises, no trespass ab initio.

Continuing trespass arises where, after an initial trespassory entry or failure to leave land, the person or object constituting the trespass remains on the land.

Konskier v Goodman Ltd [1928] – contractor failed to remove rubbish left behind after completion of work, became trespassory on later failure to remove the rubbish in breach of contract.


 * Trespass must arise from the voluntary act of D**

Smith v Stone (1647) – D did not commit trespass; thrown on land by third parties. D must be at fault. Strict liability may attend an intentional trespass where the D has no reason to believe a trespass is being committed.


 * Remedies**

• Ejectment • Recovery of Possession • Award of damages • Injunction

//Parramatta CC v Lutz// //Campbelltown CC v Mackay// //XL Petroleum (NSW) v Caltex Oil//

A Current Affair scenario: Lincoln hunt, were renting, had exclusive possession. Entered Lincoln hunt and took footage of the reception. Used the footage and slagged them off. Question, was there a trespass to land? No ongoing trespass, only happened once. What you want to do is stop a story that will damage your business. Not a trespass, it’s about your business.

Damages for trespass

• Hogan v Wright [1963]; an intentional trespasser was liable for the foreseeable consequences of the trespass.

Injunction against further trespassers

• Prohibitory injunction against the commission of the trespass will lie in most cases of right; Patel v W H Smith Ltd [1987], the P need not show any damage or inconvenience arising from the trespass. • Mandatory injunction – D obliged to undertake experience work in order to remove the trespass – more difficult to obtain.

Ejectment – allowing the P to regain possession of the land to which the P is entitled.

• No damages can be awarded in the action itself • Combined with action for mesre profits P can claim damage done by D to land during time of occupancy and for profits taken from it during that time. • Should a dispossessed person rely on the action of ejectment, jus tertii is no defence to that action unless the D had the authority of the true owner of the land for the dispossession of the P. Failure to prove jus tertii is seen in Smith v Smythe (1890) • Not necessary to prove an absolute title to succeed in ejectment; Allen v Roughley (1955) (3) __Trespass to land__

(a) Scope of the tort

//Bernstein (Baron) v Skyviews & General Ltd// [1978] QB 479 //Kelsen v Imperial Tobacco Co// [1957] 2 QB 334 //Halliday v Nevill// (1984) 155 CLR 1 //Plenty v Dillon// (1991) 171 CLR 635 (**CB. p764)** //Lincoln Hunt Australia v Willesee// (1986) 4 NSW LR 457 //L J P Investments v Howard Chia Investments// (1989) Aust Torts Rep 80-269

(b) Title to sue

//Newington v Windeyer// (1985) 3 NSWLR 555 //MacIntosh v Lobel// (1993) 30 NSWLR 441 //Coles-Smith v Smith// [1965] Qd R 494

(c) Remedies

//Burton v Winters [1993]// 3 All ER 847 //Parramatta CC v Lutz// (1988) 12 NSWLR 293 //Campbelltown CC v Mackay// (1989) 15 NSWLR 501 //X L Petroleum (NSW) v Caltex Oil (Australia)// (1985) 155 CLR 448

• The __intentional/negligent__ act of D which __directly interferes__ with the plaintiff’s //possession// //of a chattel// without lawful justification • The P must have actual or constructive possession at the time of interference. It may not be actionable per se //(Everitt v Martin// • The act of D in relation to another’s chattel which constitutes an unjustifiable denial of his/her title Owners Those in possession or entitled to immediate possession Bailees*/ Bailors* Mortgagors*/Mortgagees*(//Citicorp Australia v B.S. Stillwell)// Finders (//Parker v British Airways; Armory v Delmirie//)
 * Trespass to Goods/Chattels**
 * Damages**
 * Conversion**
 * Conversion: Who can sue?**

Mere asportation is no conversion – //Fouldes v Willoughby// Wanted to take his horse on the ferry, ferry operator said no. Took it to an Inn and asked them to look after it. When he got back, Inn keeper asks for money for feeding his horse. Says no, Inn keeper sells the horse. Guy sues the ferry operator – unsuccessful. The D’s conduct must constitute an unjustifiable denial of P’s rights to the property – //Howard E Perry v British Railways Board [1980]// By intentionally failing to deliver is denying howard e perry’s right to the good. Finders of lost property – //Parker v British Airways [1982]// – //Willis v British Car Auctions [1978]// Mr Croucher bought a Mustang on HP. Goes Bankrupt and sells the car through British Car Auctions. They then sell it to a third party (who could not be identified or found) the car was gone. Question was; can you sue the Auctioneer in conversion? Did the Auctioneer play a part? Auctioneer argued that he was a conduit that the sale went through. Did the Auctioneer do something that disentitled Willis’ right to possession in that good? Yes. – //Atkinson v Richardson// If it is destroyed, do you want it back? No, it’s Dispossessing is an act of conversion. – Clayton v Le Roy [1911] Withholding, but be careful of conditions. ( //Ashby v Tolhurst// (1937 2KB)//; Sydney City Council// v //West//) Similar factual situations in both cases. Park the car, come back and ask for the keys. Car park attendant says he gave the keys to someone else. Contracts cases – had an indemnity clause. Leaving aside contract it would still be misdelivery. Unauthorized dispositions in any manner that interferes with P’s title constitutes conversion • Detinue: The wrongful refusal to tender goods upon demand by P who is entitled to possession It requires a demand coupled with subsequent refusal (//General and Finance Facilities v Cooks Cars (Romford)// “Can I have the crane back? No.” In conversion, damages //usually// take **the** form of pecuniary compensation In detinue, the court may in appropriate circumstances order the return of the chattel Damages in conversion are calculated as at the time of conversion; in detinue it is as at the time of judgment – //The Medianal// – //Butler v The Egg and Pulp Marketing Board// – //The Winkfield// – //General and Finance Facilities v Cooks Cars (Romford)//
 * Acts of conversion**
 * The position of the auctioneer**
 * Destruction of the chattel is conversion**
 * Taking possession**
 * Withholding possession**
 * Misdelivery**
 * ( //Penfolds Wines v Elliott//)** Winemaker sold wine commercially, would deliver the wine in large glass Vats/bottles/flagons – big glass bottles which had on the bottle “This bottle remains the property of Penfolds” Elliots sold Penfolds but also sold their own wine. Licensing officer was inspecting their premises (was also a member of the wine society or something) noticed that a Penfolds bottle was being used to sell Elliot’s wines. Sued Elliot brothers in conversion. Goes to the high court. Latham CJ gives a good definition in his judgement of conversion. If someone exercises dominion over your goods that is contrary to your rights. Confusing though because the CJ is in the minority. Penfolds lose because the order that they are seeking is not appropriate. They were seeking an injunction – an order to stop someone from doing something. They wanted to stop the Elliot brothers from doing it. The licensing only saw it happen once – it was not an ongoing activity. Penfolds had constructive rights ….
 * Detinue**
 * Damages in conversion and detinue**

(4) __Interference with goods__

(a) Trespass to goods

//Fouldes v Willoughby// (1841) 151 ER 1153 //* Penfolds Wines v Elliott// (1946) 74 CLR 204

(b) Conversion

//Willis v British Car Auctions// [1978] 1 WLR 438 //Howard E Perry v British Railways Board// [1980] 1 WLR 1375 //Parker v British Airways Board// [1982] QB 1004

(c) Detinue

//General and Finance Facilities v Cooks Cars (Romford)// [1963] 1 WLR 644

(d) Damages

//The Medina// [1900] AC 113 //Butler v The Egg and Egg Pulp Marketing Board// (1966) 114 CLR 185 //The Winkfield// [1902] P 42 //General and Finance Facilities v Cooks Cars (Romford)// [1963] 1 WLR 644

**Action on the Case of Wilful Injury**

Action on the case for physical injuries or nervous shock (which isn’t trespass)

Action on the case: Refers to actions based on injuries that are caused indirectly or consequentially.

Trespass involves the intentional infliction of a direct injury on the plaintiff. It is possible to intentionally inflict an injury on the plaintiff indirectly.

- Where the injury is direct and intentional there is a basis for trespass (for instance a D hits the plaintiff).

- Where the injury is intentional but indirect (for instance D intentionally sets a trap that causes injury to P), there is no trespass. The P can however sure in an action on the case

**Action on the Case for Indirect**
 * Intentional Harm: Elements**


 * D is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage to P


 * The elements of this tort:

– The act must be intentional – It must be one calculated to cause harm/damage – It must in fact cause harm/actual damage


 * Where D intends no harm from his act but the harm caused is one that is reasonably foreseeable, D’s intention to cause

o The intentional act may be deliberate and preconceived as seen below in

//__Bird__// v //__Holbrook__// (1828) - Indirect Intentional Injury


 * Facts:** P (young boy) was chasing a hen, the hen went over a fence and the P followed the hen over - behind the fence was the D’s garden who took great pride in it - D had set up a spring loaded gun to deter anyone who wanted to ruin his garden, which P triggered and consequently was injured by it.
 * Held:** D is liable and the P succeeded and recovered damages because use of a gun could not be regarded as being within the landowner’s privilege to take reasonable measures to eject or deter trespassers.

o It may also be inferred or implied; the test for the inference is objective established in the Wilkinson v Downton case:

[Important case]


 * //__Wilkinson__// v //__Downton__// (1897)** - Where the Defendant intends no harm from the act, but the harm caused is reasonably foreseeable, the Defendant’s intention to cause the resulting harm can be imputed/implied.


 * Facts:** D by way of practical joke told the P falsely that her husband has been seriously injured. Because of her emotional distress she suffered prolonged nervous illness (nervous shock which is regarded as actual damage)
 * Held:** Wright J: “the defendant has willfully done an act calculated to cause harm to the plaintiff…and has in fact thereby caused harm to her…the willful injury is in law malicious, although no malicious purpose to cause harm which was caused nor any motive of spite was imputed to the D” P was awarded damages because there was an intention to inflict shock.

Facts: D was a private investigator who was paid to get these documents from the P. He created a ruse and told her that she was suspected of being a German spy. He says “give me the documents and we will clear your name” she finds out later that it’s all bullshit. Is it reasonable that she would be in shock/ emotional distress? Yes. He says it was just a trick, a ruse. Held: That he wanted to shock her. That is what triggered and caused her mental grief. Intenational act that is meant to cause harm and that actually cause hard.
 * Janvier v Sweeney [1919]**


 * //__Bunyan__// v //__Jordan__//** - Wilkinson principle applied, but liability didn’t exist – no reasonable foreseeability by Defendant


 * Facts:** The Plaintiff, who has no relation to the Defendant, hears the plaintiff threatening suicide to his sons to put emotional pressure on them. P knew D had a revolver on him and soon after the threat the P heard a shot. In consequence, she suffered nervous shock. D has no intention of suicide and only shot revolver to create a scare.
 * Held:** HC held that the in the circumstances there was no reasonable foreseeability of a person in the P’s circumstances suffering nervous shock. Thus, liability could not exist under the Wilkinson v Downton principle.


 * //__Stevenson__// v //__Basham__//** - Wilkinson principle applied, liability DID exist – intentional act by D


 * Facts:** D said “ill have you out within 24hrs if I can’t get you out I’ll burn you out” - this was said to P’s husband - P was not there when the shouting match occurred - P was in bed and overheard it - was pregnant at the time and was genuinely afraid - suffered hysteria and as a result this led to a miscarriage
 * Held:** That it was an intentional act in this circumstance


 * The Scope of this Rule**


 * The rule does not cover ‘pure’ mental stress or mere fright
 * The act must be reasonably capable of causing mental distress to a normal* person:

- //__Bunyan__// v //__Jordan__// __(1937)__ - //__Stevenson__// v //__Basham__// __[1922]__


 * The Scope of Intentional Torts to the Person**

–Battery, –False Imprisonment – Assault
 * Trespass:


 * Action on the case (//__Wilkinson__// v //__Downton__//)


 * ONUS OF PROOF** - Always Discuss in exam for Trespass

-In Common Law, he who asserts proves -Traditionally, in trespass D was required to disprove fault once P proved injury. Depending on whether the injury occurred //on// or //off// the //highway// ( McHale v Watson; **//Venning v Chin//)** -The current Australian position is contentious but seems to support the view that in off highway cases D is required to prove all the elements of the tort once P proves injury – **//Hackshaw v Shaw//** – **//Platt v Nutt//** – ***See Blay; ‘Onus of Proof of Consent in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25** – But see McHugh J in See **//Secretary DHCS v JWB and SMB (Marion’s Case)//** 1992 175 CLR 218


 * In Trespass:** the rule traditionally is that the plaintiff need prove only the direct interference arising from the Defendant’s act. The burden of proof was then on the D to show either that the act was involuntary or that the D acted neither intentionally nor negligently in relation to the interference.


 * In the action on the case:** The burden of proof of fault lay on the Plaintiff

· Depending on whether the injury occurred on or off the highway (//__McHale__// v //__Watson__//; //__Venning__// v //__Chin__//)

//__McHale__// v //__Watson__// - Trespass (off highway) – D had to prove absence of intent/negligence


 * Facts:** Defendant had thrown a sharpened piece of steel at a wooden post, the metal had either missed or glanced the poll and struck the P in the eye
 * Held:** The burden of proof in an action of trespass lay on the D to show that he/she was not at fault (neither intentional, reckless nor negligent)

//__Venning__// v //__Chin__// - Highway Trespass – P had burden of proof.


 * Facts:** Woman was struck by a car walking across a suburban street - there was not enough evidence of negligence to prove in this case
 * Held:** In the case of a highway trespass, the burden of proof of fault, whether in the form of intention al or negligent conduct, lay on the plaintiff, despite the fact that in non-highway trespass the defendant had the burden of proof.

· The current Australian position is controversial but seems to support the view that in off highway cases D is required to prove all the elements of the tort once P proves injury:

- //__Hackshaw__// v //__Shaw__// - //__Platt__// v //__Nutt__//


 * IMPACT OF THE CIVIL LIABILITY ACT**


 * Section 3B Civil liability excluded from Act**

(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows:

(a) civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct – the whole Act except Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death

Section 3B Civil liability act - APPLIES BECAUSE OF PART 7

Civil liability act does focus heavily on negligence but it does not apply to intentional torts except part 7 - goes to self defence and recovery of damages by criminals…

**Defences to Intentional Torts**

Statement of Defence: The response to the P’s Statement of claim - the basis for nonliability

Once the plaintiff has established an intentional invasion of his or her interest by the defendant, the legal burden of proving the facts necessary to constitute a defence lies on the defendant.


 * Mistake**

An intentional conduct done under a misapprehension – not the same as inevitable accident


 * Mistake is generally not a defence to an action brought for an intentional tort, and the reasonableness of the mistake is irrelevant

//__Cowel__// v //__Corrective Services Commission__// (1998) - A mistaken belief that a prisoner was not due for release was no defence to an action for false imprisonment. This was so even though the D acted reasonably on the assumption that blah blah… //Rendell v Associated Finance Ltd,// //__Symes__// v //__Mahon__// - Was not held to be a defence that the policeman had mistaken identity


 * Inevitable Accident**

It is a plea that the D either committed no voluntary act or did not intentionally invade the plaintiff’s interest and took all reasonable care to avoid doing so. The defence in trespass is now only necessary where the plaintiff if relying on a non-highway trespass.

But McHugh J in See Secretary DHCS v JWB and SMB (Marion’s Case) 1992 175 CLR 218 Consent is a defence of considerable importance. An act of sexual intercourse without consent is a battery, as is surgical operation committed without consent.
 * Consent
 * See: Blay; ‘Onus of Proof of Consent in an Action for Trespass to the Person’ Vol. 61 ALJ (1987) 25**

The defence is usually referred to as consent where the intentional torts are concerned, and volenti non fit injuria where negligence is complained of.


 * Valid Consent**

Courts have established 3 general principles concerning defence of consent:


 * The consent must be given to the act complained of;
 * There mustn’t be vitiating factors (duress, deceit capacity) nullifying consent; and
 * Consent must be genuine

//__R__// v //__Williams__// - To be valid, consent must be informed and procured without fraud or coercion


 * Facts:** P consented to Medical surgery but not sexual act

//__Papadimitropoulos__// v //__R__// (1957) -


 * Facts + Held:** Where women consented to sex in the belief that she was fraudulently induced to someone whom she believed she was married too – but wasn’t really – he then is not found guilty of rape because she consented to the act itself.

To invalidate consent, fraud must relate directly to the agreement itself, and not to an incidental issue


 * Consent in Sports**

//__McNamara__// v //__Duncan__// - In contact sports, consent is not necessarily a defence to foul play as also seen in the case of //__Hilton__// v //__Wallace__//


 * Facts:** AFL game – D deliberately struck P and fractured his skull/broke his jaw
 * Held:** That P did not consent to such a blow

//__Giumelli__// v //__Johnston__// - To succeed in an action for trespass in contact sports, the P must prove the relevant elements of the tort


 * Facts:** In this case some bodily contact outside of the rules is expected and consent extends to cover that however, not huge blows like breaking a nose etc…


 * Burden of Proof**

Since the absence of consent is a definitional element in trespass, it is for the P to prove absence of consent and not for the D to prove consent, D simply establishes a claim of consent - //__Sibley__// v //__Milutinovic__// (1990)

**STATUTORY PROVISIONS ON CONSENT**

• Minors (Property and Contracts) Act 1970 (NSW) ss 14, 49

• Children and Young Persons (Care and Protection) Act 1998 (NSW)


 * Self Defence & Defence of Others**


 * Defence of the person, defence of property.**


 * A genuine occasion for self-defence appears to exist; and


 * In each case, **the force used must be reasonable** or proportional to the threat; it must not be excessive as discussed in **//__Fontin__// v //__Katapodis__//**


 * Facts:** After an exchange of words - P grabbed a wooden T-square (from tech drawing) - and whacked D across the arm - hits him a second time - as he draws back for the third hit - the D grabs the closest thing to him - a shard of broken glass - in defence picks it up and throws it at P and causes damage - case goes to the HC
 * Held:** HC found the use of the glass was excessive - “out of proportion” when compared to using a T-square to hit someone


 * D may also use reasonable force to defend a third party where he/she reasonably believes that the party is being attacked or being threatened


 * The Defence of Property**


 * D may use reasonable force to defend his/her property if he/she reasonably believes that the property is under attack or threatened


 * What is reasonable force will depend on the facts of each case, but it is debatable whether reasonable force includes ‘deadly force’


 * Provocation**

• Provocation is not a defence in tort law.

• It can only be used to avoid the award of exemplary damages: //__Fontin__// v //__Katapodis__// It can only be used to avoid the award of exemplary damages: //Fontin v Katapodis; Downham v Bellette (1986) Aust Torts Reports 80-038//

The relationship between provocation and contributory negligence The implication of counterclaims Note possible qualifications //Fontin v Katapodis// to//:// – //Lane v Holloway// – //Murphy v Culhane// – **//*See Blay://** **‘Provocation in Tort Liability: A Time for Reassessment’//,QUT Law Journal,// Vol. 4 (1988) pp. 151-159.**
 * The case for allowing the defence of provocation**


 * Necessity**


 * 1.** The defence is allowed where an act which is otherwise a tort is done to save life or property such as:

o An act that damages property for the purposes of saving life::

//__Mouse__// (1609) - where P complained of his property been thrown overboard a ferry. D plea of necessity succeeded since it was established that that need to lighten the ship had arisen because of a threatening storm.

o An act done solely to preserve the life or health of the P or P’s property as seen in //__Proudman__// v //__Allen__// - Court held D not liable as his action to steer the car into other direction had been reasonably done in the belief that it would protect the plaintiff’s property. Actual affect of the act was not relevant in the absence of negligence

o A situation in which some minor discomfort or even temporary illness is inflicted on a person who constitutes a danger to the public:

//__Rigby__// v //__Chief__// [1985] - Police were able to rely n defence to us CS gas to flush out armed psychopath from premises.

__Southwark London Borough Council v Williams__ [1971] 1 Ch 734 (squatters) where “it wasn’t an urgent situation of imminent peril” The situation must pose a threat to life or property to warrant the act. The defence is available in very strict circumstances __R v Dudley and Stephens__ D’s act must be reasonably necessary and not just convenient
 * Urgent situations of imminent peril must be present**


 * //Murray v McMurchy//** [1949]2 DLR 442


 * //In re F//**


 * //Cope v Sharp//**


 * Insanity**

Insanity is not a defence as such to an intentional tort. D must establish incapacity, but it is then for the plaintiff to establish that despite the incapacity, the elements of the tort can be proved


 * What is essential is whether D by reason of insanity was capable of forming the intent to commit the tort as seen in:

//__White__// v //__Pile__// (1951) - D committed battery against the P under the delusion that that was his wife – held that D was not liable


 * The now generally approved position is that, provided that person knows the nature of the act being committed, it is not necessary that he or she knows it to be wrongful as seen in:

//__Morris__// v //__Marsden__// [1952] - D was a catatonic schizophrenic who attacked P – found that D knew the nature and quality of the act even though he did not know it was wrong.


 * Therefore, earlier decision of //__White__// v //__Pile__// where a general immunity from liability is conferred to the insane person is wrong.

The fact that intentional trespass is actionable, even though the D has no reason to believe that he/she is acting wrongfully is important. The same result will be reached in the case of other intentional torts that impose strict liability such as conversion.

A different result would however occur in a case of a tort that requires a ‘wrongful intent’, and the insanity of the D hinders him/her from knowing their acts are wrong.


 * Infants**

• Minority is not a defence as such in torts.

• What is essential is whether the D understood the nature and the character of his/her conduct //__Hart__// v //__A-G__// - Where 5year old boy was held liable for slashing a playmate with a razor //Smith v Leurs// Throwing stones with a slingshot. 13 y.o. boy.


 * Discipline**

• PARENTS - A parent may use reasonable and moderate force to discipline a child. What is reasonable will depend on the age, mentality, and physique of the child and on the means and instrument used. (//__R__// v //__Terry__//) - Teachers can use reasonable discipline. - Masters of Vessels - Spouses


 * Illegality: Ex turpi causa non oritur action**

• Persons who join in committing an illegal act have no legal rights inter se in relation to torts arising directly from that act - //__Gala__// v //__Preston__//

Inter se = “between them”

//__Hegarty__// v //__Shine__//


 * Facts:** P contracted a disease from sex with the D - P did not know that the D had disease at the time
 * Held:** Found that having sex outside of marriage (this case is 1878) - in an immoral arrangement she lost the case of battery.

//__Smith__// v //__Jenkins__// (1970) - P lost due to being involved in illegal conduct


 * Facts:** P & D stole and drove a car – P was injured due to the negligent driving of the D
 * Held:** There was no duty of care between accomplices engaged in the actual performance of a common illegal purpose – so in other words, if you are injured in the course of an illegal act, you get nothing etc…

//__Jackson__// v //__Harrison__// - P won and D was held liable


 * Facts:** Two kids both aware that each other had their drivers licenses suspended - they take a car (not stolen) have an accident - due to the negligence of the driver - the injured passenger sued the negligent driver
 * Held:** That the D was liable as the joint illegality on the standard of care reasonably expected of a driver. Passenger was not breaking the law (can’t be an unlicensed passenger).

//__Gala__// v //__Preston__//


 * Facts:** Group of youths spent the afternoon playing pool and consuming alcohol - in the evening they stole a car - after which two of them planned to commit burglary - P was sleeping in the car and the car collided into a tree – P sued the driver
 * Held:** Minority held the line of Smith v Jenkins case - basically said bad luck piss off - majority argued on the basis that there is **no proximity** to generate a duty of care - the only relationship was the criminal activity which was fraught with serious risks - in the special and exceptional circumstances that prevailed the participants could not have had any reasonable basis for expecting that a driver of a vehicle would drive it according to ordinary standards of competence and care

***Trespass & CLA 2002**

• s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act. -must read all of the act sub section (a) says “does not apply to intentional acts”. It goes on to say “except Part 7 of the Act”

• s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test. subjective rather than objective (“what did he believe” etc. Versus “what would an ordinary reasonable person believe”)

• s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987.

• s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.


 * NEGLIGENCE AND FAULT IN TORTS**

• __Intentional__ or //__negligent__// act of D which __directly__ causes an injury to the __P or his /her property__ __without lawful justification__ • The Elements of Trespass: – fault: intentional or //negligent act// – injury must be __direct__ – injury may be to the P or to his/her property – No lawful justification
 * Negligent Trespass**

• While trespass is always a __direct__ tort, it is not necessarily an intentional act in every instance. It may be committed //negligently// • //Negligent trespass// is an action in trespass not in negligence: • Where the facts of a case permit, it is possible to frame an action in both trespass and negligence on the same facts • **//Williams v. Molotin//** **(1957) 97 CLR. 465.**
 * Facts:** Cyclist hit by a truck. In the 1950’s statute of limitations varied for negligent trespass and negligence. Missed the boat on negligence – defence said “you can’t have two bites of the cherry on one set of circumstances”. //What sort of trespass is it? Battery. If they saw the truck coming – then it would be assault.// Negligent act (truck hits a cyclist) not on purpose. Negligent trespass.
 * Held:** You can sue in both trespass and negligence.
 * What is Negligence?**

It is the neglect of a legal duty

Negligence is the product of these elements:


 * Duty, Breach; resultant damage.**

o The __existence__ of a duty of care o Some __breach__ of that duty o Some damage (actual __damage) resulting__ from that breach o __Causation__

Must fulfil all of these elements – in turn. For example, a person driving on the road owes a duty of care to all other road users. If they drive to fast or break the road rules etc. They are in breach of that duty of care. Breach has to cause that damage. If the car crashes into a person and breaks their leg, they cannot ask for asthma medication on the claim form. It has to be relevant e.g. caused by.


 * Early formulations of negligence**


 * Heaven v Pender 1883**
 * Negligence: The Early Cases**

Heaven v. Pender (1883) - (Defective equipment supplied to plaintiff painter).


 * Facts:** D owned a dock - under the contract - a ‘platform’ was thrown over and suspended by ropes - P was a painter who was employed by the D to paint the side of the ships - was suspended on said platform - P was injured after the ropes gave way - investigation found that ropes were scorched prior to being purchased by the D - majority view found in favour of the P based on some contractual point - LJ was in the minority view.
 * Held:** The dicta of Brett MR: whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger.

Facts: Heaven was a painter – asked the owner of the dock to supply some material to help him paint his boat. Pender supplied him with frayed ropes – P stands on the plank, lowered over the edge of a boat – ropes break, is injured. Held: Needed to use “ordinary care and skill to avoid such danger” judge said irrespective of contract, depending on the circumstances between the two parties, you need to show ordinary care/skill when lending your gear.

Whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger - **Heaven v Pender** per Brett Heaven v Pender

Complete recognition of the status of //negligence as a separate tort// arrived in 1932 in the House of Lord’s decision in **Donoghue v Stevenson** - plaintiff must demonstrate the existence of a duty of care owed by the defendant to the plaintiff.


 * Negligence is "a moral duty that should be converted into a legal obligation" - Derry v Peek per Lord Herschell


 * The duty of care is the obligation to avoid acts or omissions which are **reasonably foreseeable** to cause damage to another.


 * One owes a duty of care whenever one is engaged in an act which he or she can reasonably foresee would be likely to injure another person; one owes a duty of care to that other person.


 * Donoghue v Stevenson - foundation of Duty of Care**


 * Facts:** **Facts:** Ginger beer-decomposing snail-P has shockgastroenteritis - No privity of contract between P and D - Issue was whether D owed P a duty

P, a shop assistant, drank a bottle of ginger beer manufactured by the R which a fried had purchased for her in a café. The bottle was made of dark opaque glass and P had no reason to suspect that it contained anything but ginger beer. While the friend was topping up P’s glass, a snail floated out in state of decomposition. In consequence of the nauseating sight of the impurities of the ginger beer which had already been consumed, P suffered severe shock and gastro-enteritis and claimed for damages. P alleged it was the duty of D to provide a system of working his system to prevent snails getting in the bottles and provide an efficient system of inspecting the bottles before the ginger beer was filled into them and that D had failed both these duties and so caused that accident.


 * Held (by majority):** The manufacturer of an article of food, medicine or the like sold by him in the circumstances which prevent the distributor or the ultimate purchaser from discovering by inspection any defect, is under a legal duty to the ultimate purchaser or consumer to take reasonable care that that article is free from defect likely to cause injury to health. In this case the manufacture owed a duty of care to P and was liable for damages. Such a duty is owed not withstanding there was no contractual relationship between the manufacturer and the consumer. Per Lord Atkin: ‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can unreasonably see to injure your neighbour. Who then In law is my neighbour? The answer seems to be – persons who are closely and directly affected by my act that I ought to have them In my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’.
 * Donoghue v. Stevenson**

Dicta of Lord Atkin: You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissions. Whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other (person) a duty arises to use ordinary care and skill to avoid such danger.


 * Le Lievre v. Gould (1893)** - case of negligent misstatement - (Surveyor-incorrect certificates-mortgage payments-losses)
 * Held:** MR Brett said “if the person is near to another or is near to the property of another a duty lies upon him not to do that which may cause a personal injury to that other or may injure his property…”


 * Grant v Australian Knitting Mills (1936)** - The application of the rule in D v S


 * Facts:** P bought 2 pairs of undies and 2 singlets - made out of golden fleece in an Adelaide shop - so happy with purchase on the first evening he put on his long-johns - after a day he started feeling itchy - being a doctor he didn’t change his undies - he wore them for a week straight - didn’t wash - just put on the second pair straight away - after three months continuous use he developed an acute rash - had to be hospitalized - after he was treated he sued the shop and the manufacturer - evidence revealed that the redness was due to the sulphur content in the underwear - went all the way to the privy council - privy council applied the rule in Donoghue v Stevenson.

Held: A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care. A fuller was the person

Australian Knitting Mills – puts in lots of sulphur, package without getting it. Is the consumer in “reasonable contemplation” when they do that? Yes. Even though it is retailed through someone else and the consumers contract is formed with the retailer. Neighbour rule applied from Donoghue v Stephenson – tort brought into Australia.


 * Negligence: The Duty of Care**

D v S Lord MacMillan - refers to the duty of care as a “cardinal principle” of negligence and (at 618) highlights the fact that: “The law takes no cognisance of negligence in the abstract. It concerns itself with carelessness only where there is a duty to care and where failure in that duty has caused damage”.

“you must take reasonable care to avoid acts or omissions…”

Acts in the sense that you can be driving and it’s a positive act that you hit a pedestrian but not intentional because you might not have been paying attention

Omissions in the sense that a doctor giving someone medical treatment - may have explained something in an x-ray that they had fractured a bone but omitted that another shadow in the x-ray was a form of cancer - so he omitted that information

• Whenever one is engaged in an act which he or she can reasonably foresee would be likely to injure another person, one owes a duty of care to that other person

5A Application of Part

(1) This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B.

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.


 * The Modern Requirements for the Duty of Care**

5C Other principles
 * Determining Liability**

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.


 * Duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another.

There are three elements:

1. A reasonable foreseeability of real risk to P either as an identifiable individual or as a member of a class of persons; 2. The existence of proximity between the parties with respect to the act or omission; 3. Absence of any rule that precludes such a duty (policy considerations)


 * Jaensch v Coffey** - established that liability in negligence simply rests on a “public sentiment of moral wrongdoing”: Deane J

She says “he’s in intensive care – all these tubes coming out of him – i don’t know what is going on” condition is so bad – it takes two weeks for the medical staff to tell her that he is going to pull through. She suffers an extreme emotional response. That manifests itself into a psychiatric illness – it manifested itself physically and she had to have a hysterectomy.
 * Facts:** Married a copper, gets a knock on the door “husbands in hospital – it’s very serious, we’ll take you to the hospital.” Hospital staff say next 24 hours we will know what is going on. Pack. Gets the phone call from the hospital – events have happened come to the hospital now.

P had an unhappy childhood and youth - only found security when she married a policeman - few months after the birth of her child - she was at home with the child - two police came over to her house and told her that her husband had been in a terrible motor vehicle accident (due to the negligent driving of the D) - P then goes to the hospital and her husband undergoes 2 operations - then told that her husband is recovering - so go home - next morning at 5:30am gets a call saying her husband is in intensive care - at 8:30am she is summoned in to the hospital - sees “all these tubes” coming out of her husband in the hospital bed - the consensus of opinion at the time was that her husband was going to die - however took 3-4 weeks for them to realize that he was going to live - however as a result of that she received psychological problems that manifested into physical (genealogical) problems and she required a hysterectomy - so caused damage -Read this case - very important case – “read with caution.”

No issue about the duty of care owed to the husband. Would that duty of care extend to the wife? Is it reasonably foreseeable that he would have a loved one that would react emotionally and have a psychiatric problem because of it? Yes.


 * Reasonable Foreseeability**

Reasonable foreseeability is tested using an objective "reasonable person" standard.


 * The reasonable person is the embodiment of community values and what the community expects of a responsible citizen.
 * We evaluate D's conduct not from his or her particular position, but from that of a reasonable person similarly placed.
 * The reasonable foreseeability test is not erroneous and is not sufficient to found liability on its own: Sullivan v Moody (2001)

Reasonable Foreseeability: Case Law


 * Rylands v Fletcher (1868)** - where physical injuries result from physical contact, P need only demonstrate that the injuries are reasonably foreseeable


 * Nova Mink v Trans Canada Airlines [1951]** (Air traffic noise causing minks to eat their young ones-No foreseeability) - held not foreseeable that air traffic noise causing mink’s (lil animals) to eat their young offspring


 * Palsgraf v. Long Island R.R. Co. (1928)** - (Railway guards helping falling passenger fireworks explosion causing injury to plaintiff - No foreseeability) railway guard assisting passenger into carriage - accidentally dislodged a package - when the package hit the ground (it had fireworks in it) it exploded and shot all the way down the other end of the platform - striking a set of scales on the platform - the scales then struck the plaintiff - reasonably foreseeable? No!

The Scope of Reasonable Foreseeability


 * Chapman v Hearse (1961)** 106 CLR 112


 * Facts:** Dr Cherry stopped to render assistance to Chapman who had been thrown unconscious onto a roadway following a collision between Chapman’s car and another vehicle. Hearse, who was travelling in the same direction as Chapman had been, negligently ran down and killed Dr Cherry. By a third party notice, Hearse claimed contribution by Chapman, alleging Chapman was also in breach of a duty of care owed to Dr. Cherry.


 * Held:** To determine the existence of a duty of care it is sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not likely to follow a collision between two vehicles on a cold wet night upon a busy highway. What is important to consider is whether a reasonable man would foresee, as a consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those otherwise incapacitated or otherwise injured. To establish the existence of the duty of care it is not only to show that injury to a class of persons to which the plaintiff was one might reasonably have foreseen as a consequence. Such an event has occurred herein was indeed ‘reasonably foreseeable’ and the intervening negligent acts of the hearse do not preclude the conclusion that the earlier act of Chapman’s negligence was a ‘proximate’ cause.

Rat got doused with flammable cleaning liquid, ran around – came into contact with the furnace spread the fire around the factory. Is it reasonably foreseeable that the liquid could splash on rate? Is it foreseeable that the vermin could run around and near or in the furnace? Rat got doused with flammable cleaning liquid, ran around – came into contact with the furnace spread the fire around the factory. Is it reasonably foreseeable that the liquid could splash on rate? Is it foreseeable that the vermin could run around and near or in the furnace? Yes.
 * United Novelty Co v Daniels (1949)** (Workers cleaning coin operated machine with flammable substance-rat in machine runs into fire place causing fire damage and death-Foreseeability upheld)

What is reasonably forseable – is an objective test.


 * Jaensch v Coffey (1984)** (Car accident-spouse goes to hospital to see injured partner-suffers shock from what she sees and hears of husband’s condition action against D who caused accident-Proximity-Duty) reasonably foreseeable that a loved one would be hurt if someone was involved in a car accident and hurt.


 * Reasonable Foreseeability: Established category of Duty of Care**

Koehler -v- Cerebos (Australia) Limited [2005] HCA 15

Issue: “The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful” [33] Held:“The duty which an employer owes is to each employee. The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable”


 * Proximity**


 * Is the consideration to be addressed once the requirement of reasonable foreseeability has been met
 * Referred to as “ a touchstone for determining the existence and content of any common law duty of care” - Jaensch v Coffey (1984)
 * Relevant in cases of economic loss and mental harm
 * There are 3 types of proximity: physical, circumstantial and causal


 * Jaensch v. Coffey (1984)** (Car accident-spouse goes to hospital to see injured partner-suffers shock from what she sees and hears of husband’s condition action against D who caused accident-Proximity-Duty)


 * Gala v. Preston (1991)** (Duty relationship between parties engaged in an illegal enterprise-No proximity-No duty)


 * Nagle v. Rottnest Island Authority (1993)** (P injured while diving into a rocky pool- pool promoted and operated by D-Proximity, Duty upheld)

Held: the board, by encouraging persons to engage in an activity, came under a duty to take reasonable care to avoid injury to them and the discharge of that duty... require that they be warned of any foreseeable risks of injury associated with the activity so encouraged


 * Hill v Van Erp**- - loss of mere expectation is recoverable in damages


 * Physical proximity- space and time between th e person or property of the plaintiff, and person and property of the defendant
 * Circumstantial – (ie Donoghue v Stevenson) Overriding relationship of employer/employee or professional man/client
 * Causal – closeness or directness of the relationship between the particular act or cause of action and the injury sustained.

Chapman v Hearse - thrown from the car - caused dr cherry to come to the aid - negligence of hearse caused the death of the doctor…chain of causation


 * Proximity: Criticised**

The High Court has expressed reservations about the usefulness of the notion of proximity in recent times


 * Hill v Van Erp** - A unifying concept of proximity described as “ambitious” per Dawson J; “of limited use in the determination of individual disputes” per Gummow J; and affording no real guidance “in determining the existence of a duty of care in difficult and novel cases” per McHugh J


 * Perre v Apand** (1999) 73 ALJR 1190 - Proximity was no longer the “talisman for determining a duty of care” per McHugh J; and **“incapable of fulfilling, unaided, the function of demonstrating the existence or absence of duty of care” per Kirby J**

Sullivan v Moody (2001) 207 CLR 562 Unanimous (joint) judgement. Is it reasonably foreseeable that they would suffer injury? Yes – but that is not the test for a duty of care. What is the policy setting? What is the whole point of the department? What is the aim of the act? The duty of care is to care for the children. The whole existence of the dept is predicated on protecting the child.
 * Sullivan v Moody (2001) 207 CLR 562** - foreseeability of harm is not sufficient to give rise to a duty of care
 * Facts:** In separate proceedings, fathers were denied access to their children as Dr Moody (employed by the SA Dept of Community Welfare) incorrectly diagnosed sexual abuse; The fathers sued in negligence for psychiatric injury.
 * Judgment:** Appeals dismissed as no duty of care exists to protect a suspected abuser from emotional distress. “The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more than a century … it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established”.

Facts – In separate proceedings, fathers were denied access to their children as Dr Moody (employed by the SA Dept of Community Welfare) incorrectly diagnosed sexual abuse; The fathers sued in negligence for psychiatric injury. Judgment – Appeals dismissed as no duty of care exists to protect a suspected abuser from emotional distress Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ: [573] “…foreseeability of harm is not sufficient to give rise to a duty of care” [578] “The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more than a century … it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established”

Proximity: Unclear how it is to be Applied Now?

Perre v Apand: Although proximity is not a universal test for duty of care, it is a concept which has not been totally abandoned (per McHugh J)


 * “Incremental Approach”

Sutherland Shire Council v Heyman: per Brennan CJ “develop incrementally and by analogy with established categories”

Perre v Apand: incremental approach adopted by McHugh J


 * Incremental Approach criticised in Brodie v Singleton Shire Council by Callinan J as retreating to a “safe haven”


 * Duty Categories: To whom is duty owed?**

• One owes a duty to those so closely and directly affected by his/her conduct that she ought reasonably to have them in contemplation as being so affected when undertaking the conduct in question.

Examples: - Employer/Worker - Driver/Other Road Users - Doctor/Patient (Professional / Client) - Consumers, users of products and structures • //Donoghue v Stevenson// • //Voli// v Inglewood //Shire Council// • //Bryan// v //Maloney// – Users of premises etc. • //Australian Safeway Stores v Zaluzna//


 * Consumers**

Donoghue v Stevenson - relationship between buyer and seller


 * Voli v Inglewood Shire Council**


 * Facts:** Council had a stage - stage was being rented by some locals (tobacco growers group) - people were walking on stage for a vote - stage collapsed - voli sued council because they built the stage - some question the architect was to blame - architect was involved very early on in the development – however there was reasonable proximity for a duty of care to exist on the architect’s part…council was held liable


 * Bryan v Maloney**


 * Facts:** builder failed to comply with building plans - house was built for the original purchasers - they sold the house to others who sold to others etc… - the 4th gen owners sued because the house was falling apart - high court found that it was poorly built so the owners were right in suing the original builder even though there were different purchasers and a number of years between the problem coming to light…


 * Australian Safeway Stores v Zaluzna** - Occupiers liability – standard of duty

Held: (on appeal) the trial judge applied the wrong test as D’s duty as an occupier was the ordinary common law duty to take reasonable care. ‘The fact that the respondent upon the land of the appellant establishes a relationship between them which in itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid foreseeable risk of injury to the respondent’.
 * Facts:** P sued for damages after he slipped and fell on D’s wet supermarket floor. It had been a rainy day and in consequence of the foot traffic the floor had become moist. The trial judge found that D had not breached its duty of care as an inviter to warn an invitee, P, of any unusual dangers.


 * Users and purchasers of premises**


 * Hackshaw v Shaw (1984) 155 CLR 614


 * Rescuers**

Chapman v. Hearse (1961) - What is important to consider is whether a reasonable man would foresee, as a consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those otherwise incapacitated or otherwise injured. Was indeed ‘reasonably foreseeable’ and the intervening negligent acts of the hearse do not preclude the conclusion that the earlier act of Chapman’s negligence was a ‘proximate’ cause.


 * There is no positive legal obligation in the common law to rescue, onlu a amoral and social one
 * The law does not ‘cast a duty upon a man to go to the aid of another who is in peril or distress, not caused by him
 * There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance

Horsley v Macleran (The Ogopogo) (1971 - One is only required to use reasonable care and skill in the rescue. ship case - owners of the boat - person was a guest on the boat - fell overboard into icy water - not due to the fault of the boat or boat owner - Horsley jumped into the water to rescue the individual - boat circled around to come back and get them - both people died in the meantime - shipand shipowner owed a duty of care to rescue them

The duty owed to rescuers

• The rescuer is generally protected: torts recognizes the existence of a duty of care owed to the rescuer • The issue of volenti-non fit injuria: This principle does not seem to apply in modern tort law to rescue situations

– Note however the case of Sylvester v GB Chapman Ltd (1935) :attack by leopard while attempting to put out a smouldering cigarette in straw

‘The cry of danger is the summons to relief. The law does not ignore these reactions of the mind.. It recognizes them as normal…and places their effects within the range of of the natural and the probable [and for that matter the foreseeable] per Cardozo J in Wagner v International Railway Co. (1921)

Rescuers may recover for both physical injuries and nervous shock

Mount Isa Mines v Pussey (1970)- P worked at a mine - saw his two co-workers get severely burnt - takes them to get treatment - because of what he saw (burns) he suffered nervous shock and developed schizophrenia – P sued D for damages and the trial judge found that the injuries sustained by the plaintiff were directly caused by the incident Held: reasonable foreseeability of actual injury need not be proven, but the class of injury must be foreseeable, that not some other form of harm must have been a foreseeable result of the harm complained of - P was successful in his claim


 * School Children**

Geyer v Downs (1977) - When a duty arises

Facts: P, aged 8 suffered severe brain damage when hit in the head by a softball in the school playground before 9am when it was known to the principle that children were arriving, however there was no supervision until 9am, although he did advise the pupils that they were to spend this time sitting quietly or reading. P sued D for damages in negligence and also brought action against the Government of NSW on the grounds of vicarious liability. The jury’s verdict for P was set aside by CCA on the relationship between school teacher/pupil was not as such to give rise to a duty of care at that time of the morning. Held: (on appeal) restoring the verdict. The duty of care owed by the headmaster require that he should take such measures as in all the circumstances were reasonable to prevent injuries to him pupils. In this case the injury was of a kind that was foreseeable, and might have been prevented had there been supervision of the playground activities. It was open tot the jury to conclude that a duty of care arose in the mornings before 9am when the children were allowed onto the grounds.


 * The unborn child:**

– The duty is not simply to take reasonable care in the abstract but to take reasonable care not to injure a person whom it should reasonably be foreseen may be injured by the act or neglect if such care is not taken (Winneke CJ/ Pape J)

– There can be no justification for distinguishing between the rights…of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his proud father and of a child //en ventre sa mere// (in utero) whose mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a child ( Per Gillard J in Watt v Rama)


 * Lynch v Lynch (1991)** - mother was pregnant and driving car - had an accident due to her negligence - child was then born and suffered a huge disability - child (once turned 18) sued the mother - child was successful “only the living can sue”…


 * Wrongful life** - as a result of D's negligence, a child is born with a deformity
 * (need better notes on these cases)

Mum and Dad win – child does not.
 * Waller v James 2002**- D’s sued (IVF clinic) - they were sued because no tests were done on the husband for a genetic condition (AT3) - apparently causes a child to be born with cerebral thrombosis - child is born with brain damage and has uncontrolled seizures - husband and wife and child sue - they allege that if they had known the genetic condition could have been passed on then they would have chosen another embryo, used different sperm or terminated the pregnancy - we would have chosen not to have this child


 * Harriton v Stephens [2002]** –

Mother has a rash, calls Dr Stephens. He offers to take a test and asks if she is pregnant. She says she doesn’t know – so he does a test for that as well. Practice calls her and tells her to come in to the clinic. Dr Stephens Jr (Dr Stephens son). Dr Jr tells her “congratulations you are pregnant!” The tests were inconclusive in the wording “if exposed to a rubella like rash, further tests should be done” not to worry, she doesn’t have rubella. What the pathology report actually said was “If exposed to a rubella like rash, have another test”. Reasonable doctor would have ordered another test. She gives birth – daughter is profoundly disabled due to rubella. “If you had conducted the proper test, my mother could have had the opportunity to abort my life”. No duty of care.

• **Wrongful life cases** – **Harriton v Stephens [2006] HCA 15 (9 May 2006) The specific duty of care postulated was a duty upon Dr Stephens to diagnose Rubella and then advise Mrs Harriton to terminate the pregancy.** – **Appeal dismissed (7 to 1 majority)** – **Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing), Hayne J and Callinan J in separate judgments dismissed the Appeal** – **Kirby J dissented**

• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing) • [244] “It was not Dr P R Stephens's fault that Alexia Harriton was injured by the rubella infection of her mother. Once she had been affected by the rubella infection of her mother it was not possible for her to enjoy a life free from disability. ... Dr P R Stephens would have discharged his duty by diagnosing the rubella and advising Mrs Harriton about her circumstances, enabling her to decide whether to terminate her pregnancy; he could not require or compel Mrs Harriton to have an abortion. ”

• **Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)** • **[249] “It is not to be doubted that a doctor has a duty to advise a mother of problems arising in her pregnancy, and that a doctor has a duty of care to a foetus which may be mediated through the mother[403]. However, it must be mentioned that those duties are not determinative of the specific question here, namely whether the particular damage claimed in this case by the child engages a duty of care. To superimpose a further duty of care on a doctor to a foetus (when born) to advise the mother so that she can terminate a pregnancy in the interest of the foetus in not being born, which may or may not be compatible with the same doctor's duty of care to the mother in respect of her interests, has the capacity to introduce conflict, even incoherence, into the body of relevant legal principle ”** • **Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)** • **[251 & 252] “Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused by the alleged breach of duty. ... In the Court of Appeal, Spigelman CJ recognised that in cases of this kind, to find damage which gives rise to a right to compensation it must be established that non-existence is preferable to life with ...** • **A comparison between a life with disabilities and non-existence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible. ”**

• There are two separate issues in rescue: – The ‘duty’ to rescue – The duty of care owed to the rescuer • There is no positive legal obligation in the common law to rescue - The law does not ‘cast a duty upon a man to go to the aid of another who is in peril or distress, not caused by him • There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance – **//Horsley v Macleran (The Ogopogo) (1971) 22 DLR//** • One is only required to use reasonable care and skill in the rescue • The rescuer is generally protected : torts recognizes the existence of a duty of care owed to the rescuer • The issue of //volenti-non fit injuria:// This principle does not seem to apply in modern tort law to rescue situations – Note however the case of //Sylvester v GB Chapman// Ltd (1935) :attack by leopard while attempting to put out a smoldering cigarette in straw
 * Edwards v Blomeley 2002** - P husband underwent a vasectomy - told by the doctor that he would still have a few ejaculations after that - had a test six weeks after the operation to see how high the sperm count was - found he had 19,000,000 sperm per ml - doctor said that this was higher then normal - performed another test 2 weeks later which showed there were 5,000,000 per ml - tests showed that the vasectomy had not worked - doctor didn’t tell the P this - doctor said at least the sperm count was going down – doctor recommended another sperm test - should have it in one months time - this test was never done - wife ended up getting pregnant and had a child - child ended up being born with a genetic condition - had seizures and brain damage etc… No doubts about the negligence on the cases - or that there was not a duty of care - the question was whether the children could sue themselves (ie but for your negligence I would not have been born - my parents would have terminated the pregnancy) One of the allegations of negligence from the children was that the IVF clinic, the doctors, were negligent in not advising my parents to kill me…as we said before “only the living can sue”… So if you were dead you personally would have no claim
 * Rescuers**
 * Rescuers**

‘The cry of danger is the summons to relief. The law does not ignore these reactions of the mind.. It recognizes them as normal… and places their effects within the range of of the natural and the probable [and for that matter the foreseeable] per Cardozo J in //Wagner v International Railway Co. (//1921) - Chapman v Hearse //- Videan v British Transport Commission// (1963) (rescue attempt to get a child trespassing on railway line) Rescuers may recover for both physical injuries and nervous shock The US fire-fighter’s Rule does not apply in Australia and the UK - Ogwo v Taylor (1988) AC 431
 * - Mount Isa Mines v Pussey (maybe Pusey) (1970)**


 * Unforeseeable Plaintiffs**

In general the duty is owed to only the foreseeable plaintiff and not abnormal Plaintiffs.


 * Bourhill v Young [1943]** - P is a fishmonger - who is 8 months pregnant - gets off a tram - walks around the side of the tram - on the other side a motorcyclist was traveling past her at speed - heard the collision - didn’t see it - motorcyclist died - body was taken away before she got to the scene - took action against the motorcyclists estate for suffering nervous shock - lost her case because this was not foreseeable - she was an ‘abnormal’ plaintiff


 * Levi v Colgate-Palmolive Ltd (1941)**- 21yr old P received a sample of bath salts - took a bath with the salts - suffered tingling and redness on the skin - P failed as there was no evidence the ingredients were in any way dangerous or necessitated a warning on the label etc…


 * Haley v L.E.B. [1965]** - D’s workers had excavated a trench in a footpath - no signs erected - one end of the trench they marked it with a pick and shovel - other end they marked it with a heavy weight and handle - P was walking along - trips over the heavy weight and handle and suffered damage - P was blind - as blind people are a foreseeable class of people P succeeded


 * Qualifications to the duty of care**


 * Novus Actus Interveniens - external factors which operate as to break the chain of causation - Chapman v. Hearse
 * The opportunity for intermediate examination:

Grant v. AKM - defect is hidden and unknown to the consumer

Facts: Dr Grant contracted dermatitis from two pairs of ‘golden fleece’ long underpants owing to excess sulphites which were negligently left in the garments in the process of manufacture. The dermatitis became so severe that he was hospitalised for some months. Grant claimed damages against the manufacturer and the retailer from who he purchased the garments.

Held: The presence of the sulphites in the garments was a hidden and latent defect which could not be detected by any examination that could reasonably be made. The underwear reached P in the same defective condition that it left D. The underwear was made of the purposes of apparel as worn by P. These facts establish a duty of care between P and manufacturer. There had been a breach of manufacturers’ duty and so it is liable for damages for its negligence. ‘It is enough now to say that there Lordships hold the present case to come within the principle of Donohue’s case’. ‘One further point may be noted. The principle in Donohue’s case can only be noted when the defect is hidden and unknown to the consumer otherwise the directness of the cause and effect si absent…’ (The mischief which follows from one’s own violation). Additionally, the retailers were liable in contracts for breaches of statutorily implied warranties.





• **The __Civil Liability Act 2002__ together with the //__Civil Liability Amendment (Personal Responsibility) Act 2002__// govern the law of negligence in NSW.** – **The //__Civil Liability Act 2002__// was enacted 28th May 2002 and received assent on 18 June 2002** • **Rationale behind the legislation:** – **to limit the quantum of damages for personal injury and death in public liability instances; resultantly lowering insurance premiums.** – **to discourage ‘over litigation’, by the imposition of restrictions and obligations and responsibilities upon plaintiffs and counsel**

• **In novel cases, the Courts will not only apply the test of “reasonable foreseeability” but also consider “policy” considerations:** • **Hill –v- Chief Constable of West Yorkshire [1989] 1 AC 53 (the Yorkshire Ripper’s last victim not owed a duty of care by investigating police)** • **Sullivan –v- Moody (2001) 207 CLR 562 (suspected sexual assault offenders not owed a duty of care to prevent harm by investigating community services officers)** • **D’Orta-Ekenaike –v- Victorian Legal Aid [2005] HCA 12 (advocates’ immunity upheld)**

**Breach of duty**

CIVIL LIABILITY ACT 2002 - SECT 3B

 * Civil liability excluded from Act**

3B Civil liability excluded from Act
(1) The provisions of this Act do not apply to or in respect of civil liability (and [|awards] of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause [|injury] or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except: (i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause [|injury] or death, and (iii) Part 2A (Special provisions for [|offenders] in custody), (b) civil liability in proceedings of the kind referred to in section 11 (Claims for damages for dust diseases etc to be brought under this Act) of the [|//Dust Diseases Tribunal Act//] [|//1989//] -the whole Act except sections 15A and 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), (c) civil liability relating to an [|award] of [|personal injury damages] (within the meaning of Part 2) where the [|injury] or death concerned resulted from smoking or other use of tobacco products-the whole Act except section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), (d) civil liability relating to an [|award] to which Part 6 of the [|//Motor Accidents Act 1988//] applies-the whole Act except the provisions that subsection (2) provides apply to motor accidents, (e) civil liability relating to an [|award] to which Chapter 5 of the [|//Motor Accidents Compensation Act 1999//] applies (including an [|award] to and in respect of which that Chapter applies pursuant to section 121 (Application of common law damages for motor accidents to railway and other public transport accidents) of the [|//Transport//] [|//Administration Act 1988//] )-the whole Act except the provisions that subsection (2) provides apply to motor accidents, (f) civil liability relating to an [|award] to which Division 3 of Part 5 of the [|//Workers Compensation Act//] [|//1987//] applies-the whole Act, (g) civil liability for compensation under the [|//Workers Compensation Act 1987//], the [|//Workers Compensation (Bush Fire, Emergency and Rescue//] [|//Services) Act 1987//] , the [|//Workers’ Compensation (Dust//] [|//Diseases) Act 1942//] , the //Victims Support and Rehabilitation Act 1996// or the [|//Anti-Discrimination Act//] [|//1977//] or a benefit payable under the [|//Sporting Injuries//] [|//Insurance Act 1978//] -the whole Act. (2) The following provisions apply to motor accidents: (a) Divisions 1-4 and 8 of Part 1A (Negligence), (a1) section 15B (Damages for loss of capacity to provide domestic services), (b) section 15C (Damages for loss of superannuation entitlements), (c) section 17A (Tariffs for damages for non-economic loss), (c1) section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), (d) Division 7 (Structured settlements) of Part 2, (e) Part 3 (Mental [|harm]), (f) section 49 (Effect of intoxication on duty and standard of care), (g) Part 7 (Self-defence and recovery by criminals), (h) Part 8 (Good samaritans). (3) The regulations may exclude a specified class or classes of civil liability (and [|awards] of damages in those proceedings) from the operation of all or any specified provisions of this Act. Any such regulation may make transitional provision with respect to claims for acts or omissions before the commencement of the regulation.
 * If the Act does not apply – the common law test of negligence will still apply. The common law test of negligence still applies to vast areas of negligence in NSW – however IF the act applies – use it. Make sure you can use it.**


 * The Calculation of the Negligence "Calculus"**
 * General test of a duty of care (common law test “reasonable foreseability” + public policy*)**

S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless: – (a) the risk was foreseeable (that is, it is a risk of which the __person knew__ or ought to have known), and – (b) the risk was __not__ __insignificant__, and – (c) in the circumstances, a __reasonable__ person in the person’s position would have taken those precautions. • (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): – (a) the probability that the harm would occur if care were not taken, – (b) the likely seriousness of the harm, – (c) the burden of taking precautions to avoid the risk of harm, – (d) the social utility of the activity that creates the risk of harm.

S 5B The Civil Liability Act 2002

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.

Donoghue v Stevenson (compare duty of care in that to above)

s5B2 “In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff… If the answer is in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do… The perception of the reasonable man’s response calls for a consideration of the __magnitude of the risk__ and the degree of the __probability of its occurrence__, along with the __expense__, __difficulty and inconvenience of taking alleviating action__ and any other conflicting responsibilities which the defendant may have.”
 * Wyong Shire Council v Shirt (1980) per Mason J:**

Waverley Council v Ferreira [2005] NSWCA 418** • Facts – 15 December 2000 12 yr old boy died when he fell to the ground through a skylight in the roof of a building known as the Community Centre in Kimberley Park - The boy was throwing a soft dart with a friend and mistakenly threw it onto the roof. He gained access to the roof by climbing a mesh fence attached to the building and undergrowth. The fence and undergrowth made it relatively easy for children to climb onto the roof. The fence had no utilitarian purpose as it had a gate without a lock.
 * Waverley Council v Ferreira - Discussion of s.5B(2)

Ipp JA (Spigelman CJ & Tobias JA agreeing) 43 In my opinion, the relevant risk of injury was that a child such as Martin might fall to the ground once he had climbed on to the roof. In my opinion, that was a foreseeable risk in terms of [|s 5B](1)(a). It was a risk of which the Council knew or ought to have known. It is immaterial that the Council might not have been able to foresee the precise mechanism that caused Martin to fall.

45 The matters set out in s5B(2), in substance, are a reiteration of Mason J’s remarks in Wyong Shire Council v Shirt (1980)

51 Section 5B(2) provides a framework for deciding what precautions the reasonable person would have taken to avoid the harm and involves weighing the factors set out in ss5B(2)(a) and (b) against those in ss5B(2)(c) and (d) (subject, of course, to each being applicable in the particular circumstances of the case).

52 In my opinion, the probability as to whether a reasonable person would have taken precautions against a risk of harm (referred to in s5B(2)(b)) must be considered objectively by reference to the particular circumstances of the case (and the state of mind of the defendant is not relevant to this inquiry).

• Ipp JA (Spigelman CJ & Tobias JA agreeing)

53 ... s5B(2)(a) requires consideration to be given to the objective probability of harm occurring if care were not taken. In my view, there was a reasonable possibility of harm occurring if the fence and undergrowth were not removed and children were not prevented from using the fence or the undergrowth as a stepping stone to gain access to the roof. By s5B(2)(a), this possibility must be taken into account.

54 The likely seriousness of the harm, should the risk materialise, was severe injury or death (s 5B(2)(b)) (that is, in consequence of falling from the roof to the ground).

55 Garling DCJ found that the fence served no practical purpose and in my view he did not thereby err. There was a gate in the fence and the gate had no lock. It would not have been difficult to climb over the fence. There is nothing to suggest that there was a reason to retain the undergrowth. Both the fence and the undergrowth served no apparent utilitarian or aesthetic purpose and the burden of removing them would have been small (s 5B(2)(c)).

56 I have already mentioned that s5B(2)(d) (the social utility of the activity that creates the risk of harm) is not relevant in this case.

57 Weighing the factors set out in ss5B(2)(a) and (b) against those in s5B(2)(c), I conclude that a reasonable Council would have taken the precautions of removing the fence and the undergrowth and Garling DCJ did not err in so holding.


 * Assumption of risk – Obvious risk**

Injured persons presumed to be aware of obvious risks 5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an __obvious__ __risk__, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.


 * //Falvo v Australian Oztag Sports Association & Anor//** **[2006] NSWCA 17 (2 March 2006)**

• The plaintiff injured his knee while playing Oztag (touch football) on the defendant council's field (Amateur field). The field had several sandy patches where the council had ‘topped up' wear to the grass and the injury was suffered when the plaintiff stepped in one of these. Ipp JA, in his leading judgment, upheld the trial judge's finding that the field was in a fit condition and that the defendant was not liable. He found that the risk from the condition of the field was one substantially similar to many other fields used for amateur sport, and that the risk was obvious to all.

READ DEFINITION OF OBVIOUS RISK*

• The plaintiff was a pedestrian who tripped over the ridge of a gully or depression in a roadway. In the leading judgment, Campbell AJA held that the risk was ‘very obvious', as part of the ‘normal incident[s] of life', and that it did not pose a significant risk. This was held to be the case in spite of the fact of the injury and the amount of traffic on the roadway which was said to have added to the risk. His Honour held the defendant council was entitled, having regard to ‘the obviousness of the risk, and the limited nature of the hazard posed by it, to expect that the exercise of reasonable care for their own safety by pedestrians would obviate the need for any further response' to the risk. • His Honour added that s5(1)(b) CLA put the onus of proving that ‘the risk was not insignificant' on the plaintiff, and that she had not discharged this.
 * //Eutick v City of Canada Bay Council//** **[2006] NSWCA 30 (3 March 2006)**


 * The Likelihood of the Injury**

• Section 5B(2)(a) the probability that the harm would occur if care were not taken

• Bolton v Stone [1951]

Facts: At a cricket match, a batsman hit a six, which, 70 yards from the wicket, cleared a fence 7 feet in height and struck miss Stone who was standing outside her house across the street from the ground. Held: (on whether the cricket club was negligent): Although the accident was foreseeable, the probabilities of such injuries were so light that a reasonable man would not have felt called upon to either abandon the game or increase the height of the fence. ‘the standard of care in the law of negligence is the standard of an ordinary careful man, but in my opinion, an ordinary careful man does not take precautions against every risk’ (per Lord Oaksey). ‘In my judgement, the test to be applied here is whether the risk of damage to a person on the road was so small that a reasonable man in the position of the appellants, considering the matter from a point of view of safety, would have thought to refrain from taking steps to prevent the danger (per Lord Reid).


 * The Seriousness of the Risk and the Gravity of the Injury**

• Section 5B(2)(b) the likely seriousness of the harm


 * Adelaide Chemical & Fertilizer v Carlyle (1940)**

Facts: The company manufactured sulpharic acid in brittle containers. P’s husband was fatally injured when a container he was handling broke, spilling acid on him. After receiving treatment at the hospital, the deceased was told to report to a doctor the next day. The advice was not followed and P cared for her husband with preparations from the chemist. Her husband subsequently died from infections. He company found to be negligent, alleged the real cause of death was not the acid spill but the contact with the source of infection.

Held: (dismissed company’s appeal): ‘The sulphuric acid caused a physical injury to which the deceased’s death is traceable as a proximate and not remote consequence’ (Rich ACJ)


 * Paris v Stepney Borough Council [1951]**

Facts: P was a garage hand employed by D and had already lost his sight in one eye after WW2. While working in a vehicle in D’s garage, P hammered a rusty bold and a chip of metal flew into his other eye causing him to loose his sight.

Held: D was negligent in not providing goggles for P, and that a greater duty of care was owed to P as the gravity of the damage suffered by P would be far higher than workmen having the use of both eyes.


 * The Utility of the Act of the Defendant**

E. v Australian Red Cross Society (1991) South Australian Ambulance Transport Inc. v. Walhdeim (1948) Rigby v. Chief Constable of Northamptonshire [1985]

• Section 5B(2)(d) the social utility of the activity that creates the risk of harm.

South Australian Ambulance Transport Inc. v Walhdeim (1948)


 * The Cost of Avoiding the Harm**

• Section 5B(2)(c) the burden of taking precautions to avoid the risk of harm


 * Caledonian Collieries Ltd v Speirs (1957)**

Facts: P claimed compensation under the compensation to Relatives Act for the death of her husband. He was killed at a level crossing when the car he as driving was hit by a train of trucks that were running out of control down the steep gradient of a railway like owned and operated by the colliery under a private statute. Protective devices known as catchpoints which allow trains to drive in one direction, but cause a derailment to trains going in the other direction were not installed. It was argued for D that it was not practical to install this device as it would cause a hazard to trains moving down the gradient.

Held: The well settled principle applies that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, by their exercise, damages for negligence may be recovered. The colliery owed a duty to those using the roadway to exercise reasonable care for their safety. The problem of runaway trucks on the line was a contingency likely at some time to occur and the jury at the trial were entitled to treat it as a possible danger against which precautions should have been taken.


 * The peculiar or particular background of the defendant**

(i) infants:

McHale v. Watson (1964) - for minors, it is the standard of care to be expected of a child, not a reasonable man.

A 12 year old boy threw a sharpened piece of steel at a post. The projectile hit the P, a 9 year old girl and destroyed the sight of her right eye. On the allegation of negligence, Windeyer J (at fist instance in the 1964 proceedings) held that it was not required to disregard altogether that the D was only 12 yrs of age when deciding the standard of care of a reasonable man to be applied in the instance. P appealed from the judgement for D arguing that the standard of care to be exercised should not differ from that of an adult.

Held(on appeal): It was appropriate for the trial judge to consider D’s age in determining the standard of care to be applied, and the decision of WJ at first instance not to disregard this fact does not amount to a misdirection in law. Kitto J went on to state: ‘it is the standard to be expected of a child, meaning an ordinary child of comparable age…no that which is to be expected of an adult…’.

(ii) Lunatics:

Adamson v. M.V. Ins. Trust [1956] - Insanity is not a defence

Facts: Driven on by inane delusions that his workmates were going to kill him, D drove a stolen car against a policeman’s signal and knocked down p at a pedestrian crossing. D denied liability for negligence on the grounds of insanity.

Held (finding that D was insane a the time of the accident): D was responsible for negligence when he collided with P. ‘ I ca nfind no authority which would temper the view held by earlier writers that insanity is not a defence’ (Wolff SPJ).

(iii) Professional Persons:

Rogers v. Whitaker (1993) - Extent of duty

Facts: P successfully sued D following an eye operation alleging D failed to warn P that she might develop a condition known as sympathetic ophthalmia in her eyes as a result of the surgery, which she did, leaving her almost totally blind.

Held (dismissing the appeal): Except in the case of an emergency, or where disclosure would prove damaging to P, D had a duty to warn of the risks inherited in the treatment. The fact that a body of other reputable doctors would have acted in the same way as D did not preclude a finding of such negligence.


 * The dangerous nature of the activity**

Adelaide Chemical & Fertilizer Co. v. Carlyle (1940) - P was involved in a fatal accident when a container of sulphuric acid broke as he was handling it,


 * The gravity of the injury to the particular plaintiff:**

Paris v. Stepney Borough Council [1951] - the gravity of the injury was much more severe than that suffered by an ordinary man as the P who worked at a garage only had sight in one eye, and the loss of sight in the other eye caused him to be totally blind.


 * The current state of knowledge**

Roe v. M.O.H. [1954]


 * Pre-existing knowledge of the defendant's incapacity:**

What three defences might arise when P. knows that D. is unable to meet the normal standard?

Insurance Commissioner v. Joyce (1948) - contributory neg & assumption of obvious risk

Facts: Mr Kettle drove himself and his friend P to pick up Kettles wife and then to return to pick up P’s wife. The trip was 2 miles. They never arrived. Two hrs later the motor car crashed into a parked vehicle then into a fence. There were indications that liquor had been consumed. Kettle was found asleep under some bushes, drunk. Kettles insurer joined the action as a D. P claimed damages for Kettles negligent driving.

Held (dismissing P’s action): P was aware of the dangers and voluntarily assumed the risk. ‘The P’s case depends on his affirmatively establishing the proposition that his injuries were caused by the negligence on the defendant, Kettle. This conclusion, however, rests on inference from all the proved facts, and other inferences mentioned namely, contributory negligence on the part of he plaintiff [at that time a complete defence] and voluntary assumption of an obvious risk are equally consistent with those facts. Accordingly, it should be held that the P’s claim had not been established’ (per Latham CJ).

Cook v. Cook (1986) - Proximity – Contributory negligence

Facts: P invited her husbands stepmother, D, a person devoid of any driving skills or licence, to drive the motor vehicle to the local fish and chips shop. When she saw a parked car in her path, D deliberately accelerated and hit a pole causing injuries to P. The appeals court ordered judgement in favour of P but reduced her damages award by 70% by reason of contributory negligence.

Held (on appeal by D): D’s known incompetence as a driver was a controlling element of the relationship of proximity between the parties. That element took their relationship out of the ordinary relationship between the driver and passenger into a special category with a different standard of the duty of care. Actions seen as a result of that inexperience could not, of themselves, constitute a breach of that duty of care owed by D to P. However, the action of so accelerating to avoid the parked car was so careless tha tit would not merely be attributed to inexperience. Such carelessness contributed a breach of the duty of care owed by D to P.


 * Proof of Negligence**

Civil Liability Act s5E:
 * Onus of Proof**

In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation. .


 * Holloway v. McFeeters (1956) 94 CLR 470**

Facts: The husband of the respondent died as a result of injuries sustained by him when his car was struck by an unidentified vehicle. The respondent sought to recover damages form a nominal defendant, based on the allegation made by inference from marks on the roadway etc, as there were no witnesses that the driver was driving in a negligent manner. The jury found a verdict in favour of the respondent but reduced the quantum by 50% holding, as they did, that the deceased was equally to blame. The question on appeal was whether there was any evidence upon which the jury was entitled to find negligence on the part of the unidentified driver.

Held: There was no evidence concerning the movements of either the vehicle in the critical few seconds before the impact. All sorts of possibilities as to how the accident may have happened can be imagined. The question is, whether it was reasonably open to the jury on evidence to find that the death of the deceased was caused, wholly or partly, by the negligence of the driver in the unidentified vehicle. All that is necessary is that, according to the course of common experience, the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the inquiry arose from the defendant’s negligence. Applying those principles, it was open to the jury to make such a finding.


 * · Res ipsa loquitur -“The action/thing speaks for itself”**


 * Nominal Defendant v Haslbauer (1967) 117 CLR 448***


 * Cassidy v. M.O.H. [1951] - Liability in contract of service

Facts: Dr Fahrini, who was in whole-time employment as an assistant medical officer at D’s hospital, operated on P’s hand to correct a contraction of the fingers. Following the operation the hand was placed in a splint and P came under the care of Dr Fahrini, the house doctor and the hospital nursing staff. When the splint was removed the hand was found to be useless. P sued D, alleging negligent treatment following the operation. D disputed whether it was responsible negligence of the surgeon or of the house doctor.

Held: On the facts both surgeon and house doctor had contracts of service with d. They were employed, like the nurses, as a part of the permanent staff of the hospital. Accordingly, D was vicariously liable for the negligence of its servants. Heir Lordships also discussed the distinctions between a contract of service and a contract for services.**

Impact of the Civil Liability Act on the Duty of Care


 * The Civil Liability Act 2002 together with the Civil Liability Amendment (Personal Responsibility) Act 2002 govern the law of negligence in NSW.

– The Civil Liability Act 2002 was enacted 28th May 2002 and received assent on 18 June 2002

5B General Principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.**


 * **No proactive duty to warn of obvious risks**


 * 5F Meaning of "obvious risk"

(1) …an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G Injured persons presumed to be aware of obvious risks

(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

5H No proactive duty to warn of obvious risk

(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.

(2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.**


 * **No duty of care for recreational activities where risk is warned**


 * 5I Inherent Risk**

//Lormaine Pty Ltd v Xuereb// [2006] NSWCA 200
 * The NSW Court of Appeal has held that a shipowner was liable for a woman's injuries when she was washed from the bow by a ‘rogue wave'. One of the defences raised by the shipowner was that the waves were an inherent and obvious risk of dolphin-watching. However, the shipowner was unable to prove that the risk was obvious because the brochure had given the impression of a gentle cruise. Also, the ship's presence in a known ‘wave zone' meant that the risk was avoidable, not inherent. The woman's damages were reduced, however, because the trial judge had not considered pre-existing conditions and the plaintiff had failed to alleviate the symptoms by losing weight.**

5M No duty of care for recreational activity where risk warning

(1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

(10) The fact that a risk is the subject of a risk warning does not of itself mean:

(a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.


 * Professional negligence

5N Waiver of contractual duty of care for recreational activities (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.
 * (1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.

Recreational Activities (**__in the exam)__

5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person ( "the defendant" ) is not liable in negligence for harm suffered by another person ( "the plaintiff" ) as a result of the materialisation of an obvious risk of a __dangerous recreational activity__ engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk.


 * IMPORTANT CASE**

//Fallas v Mourlas// [2006] NSWCA 32 (16 March 2006) • The court held unanimously (Ipp JA, Tobias JA and Basten JA) that spotlighting was a ‘dangerous recreational activity'. Ipp JA and Tobias JA held that for the risk to be ‘significant' (s5K) it ‘must have been a somewhere between a trivial risk and a risk likely to materialise'. Ipp JA held that in determining whether a recreational activity was dangerous involved particularising and segmenting the activity where necessary. • The court held by majority (Ipp JA, Basten JA) that the risk that eventuated was not an ‘obvious risk' (s5F) in the course of a dangerous recreational activity because of the defendant's assurances that the gun was not loaded. It therefore ruled in favour of the plaintiff.**
 * • The plaintiff was holding a spotlight from a vehicle, while others shot the kangaroos. He was accidentally shot by the defendant when the defendant tried to unjam his weapon, despite having given the plaintiff assurances that the weapon was not loaded. The defendant argued it was an obvious risk in the course of a dangerous recreational activity (s5L CLA).

__Recreational Activities__ – __Sections 5J to N__ Is the commercial incentive for the safe provision of recreational & commercial activities gone? What real bargaining power do consumers have in negotiating a contractual waiver? Definition of recreational activity is broad and ambiguous.**
 * - Issues of concern:

Example of where the act is different from the common law of Australia

“Peer professional opinion” (or Bolam [English test that was rejected in Rogers v Whittaker]) test for determining the appropriate standard of care
 * 5O Standard of care for professionals**

(1) A person practicing a profession (a professional) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Austraila by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.


 * Professional Negligence**

Sections 5O & 5P • “Peer professional opinion” (or __Bolam__) test for determining the appropriate standard of care • Rogers v Whitaker (1992) 175 CLR 479 • She has a problem with her eye. 1 in 14,000 chance that if the doctor operated on the bad eye that she would suffer a condition called sympathetic myopia (the good eye would become bad in sympathy). Dr agreed, or at least it was found – that he did not warn her of that risk. High Court said that he knew that Mrs W was so concerned about her good eye – **there is a duty to warn of a risk of injury.**

– Cases involving a risk of injury or death arising from a professional service, community standards and other considerations may be applied by the court in determining the appropriate standard of care to be exercised.

(1) A person practising a profession ( "a professional" ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is __irrational__
 * 5O Standard of care for professionals**


 * Mental harm

(1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of __normal fortitude__ might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. Codifies the common law test for foreseeability of risk of mental harm in Tame v NSW;
 * 32 Mental harm—duty of care**

Guy goes missing on a cattle station. Find the car that Annetts Jnr was in – Mr Annetts finds some of his bloody clothes. Annetts Jnr died and his dad sues Australian Stations.
 * Annetts v Australian Stations Pty Ltd [2002] HCA 35**

Mrs Tame is driving her car and someone crashes into her. The other driver is responsible for the crash but the police mix up the blood alcohol reading. Put his blood alcohol reading to her name. Just a typo. Noone really knew about it because he was charged and she wasn’t charged. She puts in a claim against insurance. Insurance co. Says okay, we will pay and then it reached a point where the insurer said ‘okay, we accept our driver was at fault, but we are not going to pay for your physio anymore because we think you have had enough.’ When she found out that the paper work was wrong – saying that she was drunk – she was shocked. This caused her to break down emotionally and psychologically. She confronted the police and they admitted the mistake. High Court says that she is not normal. In other words she is not of normal fortitude.
 * Tame v NSW**

• Rationale behind the legislation:

– to limit the quantum of damages for personal injury and death in public liability instances; resultantly lowering insurance premiums.

– to discourage ‘over litigation’, by the imposition of restrictions and obligations and responsibilities upon plaintiffs and counsel

The Rationale for Reform

• It's my view that this country is tying itself up in tape because of over litigation, a long-term trend to see us litigate for everything, to try to settle every problem in our lives...by getting a big cash payment from the courts....a country as small as ours can't afford to have the American-style culture of litigation". (Bob Carr)

• ‘We need to restore personal responsibility and diminish the culture of blame.That means a fundamental re-think of the law of negligence, a complex task of legislative drafting. There is no precedent for what we are doing, either in health care or motor accident law, or in the legislation of other States and Territories. We are changing a body of law that has taken the courts 70 years to develop’ (Bob Carr)

The Approach to Reform:

Government’s View

• We propose to change the law to exclude claims that should never be brought and provide defences to ensure that people who have done the right thing are not made to pay just because they have access to insurance (Bob Carr)

• We want to protect good samaritans who help in emergencies. As a community, we should be reluctant to expose people who help others to the risk of being judged after the event to have not helped well enough (Bob Carr)

Civil Liability Act – Duty of Care for public authorities

Test for the duty of care is the common law.

However if the act applies (i.e. if it is not excluded) then the civil act test will apply. Doctors ,lawyers etc. As well as occupiers liability – zalusna etc. Other situations too.


 * Limitations on duty of care

42 Principles concerning resources, responsibilities etc of public or other authorities

(a) the functions required to be exercised by the authority are limited by … financial and other resources that are reasonably available … (b) the general allocation of those resources … is not open to challenge (d) the authority may rely on evidence of compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions …

4P Proceedings against public or other authorities based on breach of statutory duty

(2) …an act or omission of the authority does not cnostitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions


 * Nonfeasance protection restored. Non-feasance protection for highway authorities had been removed, but the CLA restores it.

Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (removal)

Civil Liability Act 2002 s.45 (restoration)

**Products Liability**
 * Particular Duty Areas in Negligence**

The manufacturer of a product is liable to the ultimate consumer for any negligence in relation to that product, if the product remains unchanged after it leaves their custody.


 * Common Law**

Donogue v Stephenson [1932] - Manufacturer liability in negligence for defective product.

The facts: This was the famous case where the plaintiff was treated to a bottle of ginger beer by her boy friend in a Glasgow café. The beer was in an opaque bottle. After the plaintiff had consumed half of the beverage, when pouring a second glass a decomposed snail emerged from the bottle. As a result the plaintiff suffered gastro-enteritis and brought an action in negligence. The Decision: Lord Atkins stated “The rule that you must love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour ? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour”

He then continued to define of neighbour in the following terms: “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question”

In relation to products towards customers, Lord Atkins said: “Knowledge that the absence of reasonable care in the preparation of putting up of the products will result in injury to the customer’s life or property, owes a duty to the customer to take that reasonable care”

Grant v Australian Knitting Mills [1936] - Manufacturer liability in negligence for defective product.

The Facts: Sulphites found in manufactured underwear.


 * Relevant Statutes**


 * (REFER TO LEGISLATION FILES FOR COMPLETE SECTIONS)

These rights are now substantially affected by statutes providing consumer protection both in tort and in contract law.

Sale of Goods Act 1923 (NSW) Pt 4 Performance of the Contract (ss.30 to 40) Pt 5 Rights of the Unpaid Seller Against the Goods ss.41 to 50) Pt 6 Actions for Breach of the Contract (ss.51 to 56)

Fair Trading Act (NSW) - Important in NSW as it deals with suing of individuals. Pt 4 Consumer Protection (ss.38 to 40) Pt 5 Fair Trading (ss.41 to 60, including s.42 Misleading or deceptive conduct and s.44 False representations)

Trade Practices Act 1974 (Cth) - Deals with Corporations. Pt V Div 1 Consumer Protection (ss.51AF to 65A, including s.52 Misleading and deceptive conduct) Pt V Div 2A Actions against manufacturers and importers of goods (ss.74A to 74L) Pt VA Liability of manufacturers and importers for defective goods


 * Defective Structures**

Professional Negligence:

S5O Civil Liability Act 2002

Civil Liability Act 2002

Professional negligence is substantially affected by the Civil Liability Act. In particular, it applies the test of whether the defendant was acting in accordance with accepted professional opinion.

SECT 5O Standard of care for professionals - “Peer professional opinion” (ie. The UK “Bolam” test)

(1) A person practising a profession (“a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

(2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.

Bolam Case - Conformity with the professional standard of care was enough to satisfy the practitioner’s obligation.

The standard of care requires, as McNair J said “A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical mean skilled in that particular art….”

Professionals do however retain a duty to warn of risks - CLA S5P

SECT 5P Division does not apply to duty to warn of risk - “Duty to warn” remains

This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.

Roger v Whitaker - Duty of professionals to warn of risk

The Facts: Mes Whitaker had a problem in one eye and the other eye was good. She was concerned that if he operated on the bad eye it could ruin the good eye. She had a condition that if the bad eye was operated on, there was a 1 to 14000 chance that her good eye would become bad too. Dr. did not warn her of this risk. The Decision: High court stated no matter how slight the risk was, you failed to warn your patient…so you had a duty to warn.

“a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned would be likely yo attach significance to it, or if the medical practitioner is or should be reasonably be aware that the patient, if warned of the risk, would be likely yo attach significance to it”

Builders:

Bryan v Maloney (1995) - Builders have a duty to future owners of a defectively built structure, not just to the initial purchaser.

The facts: A Builder built a house for the initial owner, which had footing defects. A subsequent owner brought the house and the structure failed due to the defect. The Decision: It was held by the High Court that a builder owed a duty of care to the second purchaser of a house he had constructed previously.

The relationship of proximity was found in the continued existence of the house, which the defendant ought to have known to be likely to cause economic loss to a subsequent purchaser if not properly constructed

Architects:


 * Voli v Inglewood Shire Council (1963)** - Architects have an ongoing duty to users of a defectively-designed structure

The Facts: A stage at a conference collapsed because the joists supporting the floor’ were not, having regard to the span, strong enough.’ The plaintiff sitting on the stage was injured. The collapse was due to a design error and accordingly the design architect was held liable for negligence The Decision: Justice Windeyer of the High Court stated that an architect must possess the ‘skill that is usual among architects practising their profession.’ There was no need for the architect to have exceptional skills.

Councils & Statutory Authorities:

Councils and statutory authorities have a duty not to be professionally negligent in the performance of their duties and in the issue of advice. However the CLA has substantially reduced the scope of their liability as noted earlier. Seen Below:

42 Principles concerning resources, responsibilities etc of public or other authorities
 * CLA**

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

43 Proceedings against public or other authorities based on breach of statutory duty

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a breach of a statutory duty by a public or other authority in connection with the exercise of or a failure to exercise a function of the authority.

(2) For the purposes of any such proceedings, an act or omission of the authority does not constitute a breach of statutory duty unless the act or omission was in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

(3) In the case of a function of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

43A Proceedings against public or other authorities for the exercise of special statutory powers

(1) This section applies to proceedings for civil liability to which this Part applies to the extent that the liability is based on a public or other authority’s exercise of, or failure to exercise, a special statutory power conferred on the authority.

(2) A "special statutory power" is a power:

(a) that is conferred by or under a statute, and (b) that is of a kind that persons generally are not authorised to exercise without specific statutory authority.

(3) For the purposes of any such proceedings, any act or omission involving an exercise of, or failure to exercise, a special statutory power does not give rise to civil liability unless the act or omission was in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power.

(4) In the case of a special statutory power of a public or other authority to prohibit or regulate an activity, this section applies in addition to section 44.

44 When public or other authority not liable for failure to exercise regulatory functions

(1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the authority could not have been required to exercise the function in proceedings instituted by the plaintiff.

(2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity.


 * NON-FEASANCE**
 * MISFEASANCE**

45 Special non-feasance protection for roads authorities

(1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

(2) This section does not operate:

(a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or (b) to affect any standard of care that would otherwise be applicable in respect of a risk.

(3) In this section: "carry out road work" means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993. "roads authority" has the same meaning as in the Roads Act 1993.


 * [satisfies s45 + s45(3)]**
 * Porter v Lachlan [2006] - (Lachlan Shire Council)**

Facts: Appealand suffered fructured ankle when accidently put his foot in a hole in a nature strip, between footpath and gutter. Held: Hodgson JA, "in my opinion this case comes in s45 on two basis. 1) The allegation would be that respondent failed to maintain roadwork, they looked to see if nature strip came within the definition of Road Work - YES! 2) Respondent failed to construct road work - s45(3) CLA these would extend the works of construct and install to fix roadwork.

46 Exercise of function or decision to exercise does not create duty

In proceedings to which this Part applies, the fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.


 * Common Law:**


 * Heyman v Sutherland Shire Council (1985)** - Council owed no duty of care in relation to the exercise of its statutory powers.

The Facts: There the council approved the plans but had no specific obligation to inspect the footings before the foundations were poured. There was a failure and the plaintiff was the present owner of the building The Decision: The court held that since the council had a discretion, as to which buildings were to be inspected, it was not negligence to exercise the discretion in a particular way. Had the council inspected and failed to detect the problem or had it been under an obligation to inspect but failed to do so it would have been liable.


 * Shaddock v Parramatta CC [No.1] (1981)** - Duty owed by council in giving information on serious business matters.

The facts: The plaintiff had applied to the council for a certificate as to the possible widening of a road, which would affect a property the plaintiff proposed to buy. The plaintiff’s agent telephoned the council to be informed that the land was not affected and this was later confirmed by an official certificate from the council. The Decision: The written information however rendered the council liable because it knew that the plaintiff was likely to act on the basis of the information, it was the sole repository of the information and failure to provide it would mean that enquirers would need to undertake extensive searches of council records.


 * Parramatta CC v Lutz (1988)**

The Facts: Plaintiffs complained to council about a vacant house next to hers. She complained that if a fire broke out it could be a risk to her property. Council served a notice to the owners of that house that if the problem wasn’t rectified in 60 days, the council will intervene. 60 days passed and council did not intervene, a fire broke out and the plaintiff’s house was destroyed.

The Decision: The council was held liable in negligence to the plaintiff. The courts held that the council was negligent in the exercise of statutory powers and the basis of the plaintiff’s detrimental reliance of the council. In other words, the council had moved from the discretionary into the operational area.

However following the decision of the high court in **Brodie v Singleton Shire Council** it is seen in **Ghantous v Hawkesbury City Council (2001)** - High Court abolished the highway immunity for non-feasance (Failure to perform some act which should have been performed.) - CLA s45.

The Facts: A claim for negligence where it was sought to impose liability on a highway authority for the injury or damage caused by the defective state of the highway. In Brodie – the council repaired the road bridge (replaced some planks) – Brodie’s had the maintenance records and said “you just tried to repair the bridge recently – it’s misfeasance. Council said “it’s a structure, not highway immunity – it was not part of the highway – it’s non feasance” – read professor fleming’s book on this. The decision from both cases: As part of the CLA reforms of the law of negligence, have restricted the liability of authorities for a failure to carry out roadwork unless they had actual knowledge of the facts creating the risk. - CLA s45. “Highway immunity”


 * Nervous Shock**

What is nervous shock?

– An identifiable mental injury recognised in medical terms as a genuine psychiatric illness. – The sudden sensory perception that, by seeing hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness

It is a question of fact whether it is reasonably foreseeable that the sudden perception of that phenomenon might induce psychiatric.

Nervous shock requires an identifiable mental illness, plus a shock (a sudden sensory perception) which has so affronted the mind that is causes the mental harm. **Continued on page 2**


 * continued**
 * Civil Liability Act - Part 3 – Mental harm**

27 Definitions

In this Part:

"consequential mental harm" means mental harm that is a consequence of a personal injury of any other kind. "mental harm" means impairment of a person's mental condition. "negligence" means failure to exercise reasonable care and skill. "personal injury" includes:

(a) pre-natal injury, and (b) impairment of a person's physical or mental condition, and (c) disease.

"pure mental harm" means mental harm other than consequential mental harm.

28 Application of Part

(1) This Part (except section 29) applies to any claim for damages for mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

(2) Section 29 applies to a claim for damages in any civil proceedings.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B. 29 Personal injury arising from mental or nervous shock

In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock.

30 Limitation on recovery for pure mental harm arising from shock

(1) This section applies to the liability of a person ("the defendant") for pure mental harm to a person ("the plaintiff") arising wholly or partly from mental or nervous shock in connection with another person ("the victim") being killed, injured or put in peril by the act or omission of the defendant.

(2) The plaintiff is not entitled to recover damages for pure mental harm unless:

(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim.

(3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim.

(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

(5) In this section:"close member of the family" of a victim means:

(a) a parent of the victim or other person with parental responsibility for the victim, or (b) the spouse or partner of the victim, or (c) a child or stepchild of the victim or any other person for whom the victim has parental responsibility, or (d) a brother, sister, half-brother or half-sister, or stepbrother or stepsister of the victim.

"spouse or partner" means:

(a) a husband or wife, or (b) the other party to a de facto relationship within the meaning of the Property (Relationships) Act 1984, but where more than one person would so qualify as a spouse or partner, means only the last person to so qualify.

31 Pure mental harm--liability only for recognised psychiatric illness

There is no liability to pay damages for pure mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.

32 Mental harm--duty of care

(1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric psychiatric illness if reasonable care were not taken.

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

(a) whether or not the mental harm was suffered as the result of a sudden shock, (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril, (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril, (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

(3) For the purposes of the application of this section in respect of consequential mental harm, the circumstances of the case include the personal injury suffered by the plaintiff.

(4) This section does not require the court to disregard what the defendant knew or ought to have known about the fortitude of the plaintiff.

33 Liability for economic loss for consequential mental harm

A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.


 * Elements of Nervous Shock:**

The notion of psychiatric illness induced by shock is a compound, not a simple, idea. Its elements are:

- On the one hand, psychiatric illness and, - On the other, shock which causes it. - Liability in negligence for nervous shock depends upon the reasonable foreseeability of both elements and of the causal relationship between them

Examples: Post-Traumatic Stress Disorder & Pathological grief disorder

The Victims:

• Primary victims What needs to be reasonably foreseeable? Some personal injury, physical or psychiatric, to the primary victim

Page v Smith [1996] - Primary victims are victims whose damage arises directly from the negligent act.

The Facts: A victim of a road accident caused by another's negligence claimed damages solely for psychiatric illness. The Decision: Primary victims are victims whose damage arises directly from the negligent act. The test for reasonable foresee ability based on hindsight rather than foresight is support by this case. - Motor Accidents Compensation Act 1999, s 141 bars claims to all except primary victims as drivers, relatives or those who were present at the scene at the time of the accident

• Secondary victims Secondary victims are those whose damage arises from either having a close relationship to the victim, or viewing the negligent act as it causes the damage to the primary victim.

1. Close Relationship - CLA s30. Jaensch v Coffey - Damages recovered even if Plaintiff wasn’t at location of accident.

The facts: The plaintiff was the wife of a person injured in a road accident. She developed a psychiatric illness because of what she heard and saw following the accident, in the hospital. The Issue: The key difference here is she was not present at the accident and her experience was limited to events at the hospital. The Decision: High Court by unanimous decision held that she was entitled to recover damages for this negligence. The shock to Mrs. Jaensch was clearly foreseeable shock but a question arose as to whether reasonable foresee ability of nervous shock was enough to establish liability.

- S.30 CLA “Close member of the family” and “spouse or partner” defined 2. Proximity/nearness to accident or aftermath

Bourhill v Young - Miscarriage by mother

The Decision: A child born with deformities through the defendant’s negligence would have a claim for nervous shock suffered as a result of this.

Also, if the mother has suffered nervous shock, the courts have been ready to compensate for a miscarriage or the birth of a child with deformities caused by the shock.

Mount Isa Mines v Pusey - Reasonably foresee ability of illness - CLA s32.

The facts: The respondent witnesses, an employee suffering from an electric shock due to a short circuit. He assists the employee to an ambulance and later finds out that he had died. Suffers depression and schizophrenic reactions.

The Decision: High court determined that the scope of liability of the appealnt must be in respect to:


 * The lack of relationship between those who sustained physical injury and the respondent
 * The question of the relevance of the individual characteristics of the respondent and
 * Whether the particular pathological conditions needs to be foreseeable.

Courts held that the foresee ability of the condition was not causally connected to the incident - CLA s32

Also note the distinction between "pure" mental harm arising directly from the negligent act, and "consequential" mental harm arising from other forms of personal injury - Civil Liability Act 2002 s.27

The metamorphosis of “slip and fall”

http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_ipp300307


 * Hotelier/Publican to Intoxicated Patron**


 * IMPORTANT as maybe is in exam***

Duty of care arise when an issue of non-feasance (Failing to act) is imposed on an Hotelier(Occupier) and a drunken patron. Positive duties of care to act may be imposed where the defendant is in a pre-existing “protective” relationship with the plaintiff. This is seen in,

South Tweed Heads Rugby League Football Club Limited v Cole & 1 Or [2002] - Portrays the courts willingness not to protect those who failed to take reasonable care of themselves.

The Facts: On the evening of 26 June 1994, Ms Cole was seriously injured when struck by a motor vehicle driven by Mrs Lawrence. Ms Cole had been drinking at the Club’s premises and had consumed a large quantity of alcohol throughout the day.

• Ms Cole arrived at the Club at around 9.30am and attended a "champagne" breakfast at which free Spumante was available. When the free supply ceased Ms Cole and a friend purchased and consumed further bottles of Spumante. Ms Cole was refused service at the bar in the afternoon because of her intoxicated state. Ms Cole stayed at the Club and its surrounds for the day and was ejected between 5.30 and 6pm for being intoxicated. The Club had offered to call a taxi for Ms Cole as well as offering her the use of the Club bus and driver. One of the men Ms Cole was with had told the Club manager that he would look after her. At some time after this Ms Cole left the Club.

Mrs Lawrence's vehicle hit Ms Cole at around 6.20pm. She had been travelling within the speed limit, it was dark and she had her lights on low beam at the time of the accident. Mrs Lawrence's evidence was that she had not seen Ms Cole until it was too late to avoid the collision. Ms Cole, who was wearing black clothing, suffered serious injuries from the accident and has continuing disabilities.

The Decision:

• Ipp JA (Santow JA & Heydon JA agreeing):

“To a person stationary at the point of impact and facing north, Mrs Lawrence's vehicle must have been visible for at least 100 metres ... A vehicle travelling at 70 kilometres per hour travels at 19.4 metres per second. Therefore, the vehicle must have been visible to Ms Cole for at least five seconds. It must also have been clearly audible. Yet it seems that she took no avoiding action. When the impact occurred, she was on the roadway in front of Mrs Lawrence's vehicle.

I infer that Ms Cole's grossly intoxicated state was the reason for her omission to take precautionary measures. This could be the only explanation for her failure, over a period of five seconds, to avoid the oncoming vehicle. ...

Ipp JA (Santow JA & Heydon JA agreeing): - Mrs. Cole’s duty of care was sufficient.

“Ms Cole's behaviour was so outside the norm in failing to move away from the path of Mrs Lawrence's vehicle that it becomes a matter of total speculation in attempting to establish what she was doing shortly before she was seen by Mrs Lawrence... I conclude that the evidence was not capable of establishing facts from which it could properly be inferred that Mrs Lawrence drove her vehicle negligently. I would uphold her appeal. ”

• Duty of the Club: Ipp JA - Subjective facts of her alcohol consumption.

“...[T]he source of alcohol she acquired that afternoon is a matter of mere speculation. There are at least three possibilities. The first is that Club employees served alcohol to Ms Cole within the building. The second is that she acquired alcohol from others outside the building. The third is that she was provided with alcohol purchased for her inside the building by friends or persons in whose company she was. In my view, there is no reliable basis whereby a greater degree of likelihood can be ascribed to any of the three.

Thus, in my opinion, while it was undoubtedly so that, when Ms Cole left the Club at about 5.30 pm, she was very drunk and had been drunk long before that time, the evidence was not capable of establishing on a balance of probabilities that, after the 12.30 pm bottle, she purchased alcohol from the Club or that the Club supplied alcohol to her.

• Duty of the Club: Ipp JA

“The conclusions to which I have come are determinative of the Club's appeal. In my view, the Club's appeal should be upheld on the ground that it was not established that it committed a breach of the duty of care found by Hulme J. Nevertheless, as the issues relating to the scope of the duty of care were touched on in argument, and as the case may be taken further, I shall express my views upon those matters and also upon the consequences of Ms Cole refusing the Club's offer of safe transport.”

• Extension of the duty of care?: Ipp JA:

“In my opinion, the Club owed to Ms Cole only the ordinary general duty of care owed by an occupier to a lawful entrant. The scope of that duty should not be enlarged to an extent that required the Club to cease serving alcohol to Ms Cole when it knew that it was likely that she would become intoxicated, or when she was obviously intoxicated.

In my opinion, as a general proposition, considerations of personal responsibility, autonomy, practicality and certainty override those facto`rs such as foreseeability, proximity, control and vulnerability which have persuaded some courts, in similar circumstances, to extend the scope of the general duty of care.

• Extension of the duty?: Ipp JA (Santow JA agreeing) - If the opposite situation occurred, duty of care will be established.

“There may, however, be circumstances which bring about a different result. For example, it may be that where a person is so intoxicated as to be completely incapable of any rational judgment or of looking after himself or herself, and the intoxication results from alcohol knowingly supplied by an innkeeper to that person for consumption on the premises, the scope of the duty of care of the innkeeper will be extended to require reasonable steps to be taken for the protection of the intoxicated person. But Ms Cole's case was not put on this basis and it is not necessary to deal with the issue.”

=Tort Law - Topic8 Particular Duty Areas in Negligence 2= **Pure Economic Loss**


 * What is pure economic loss?**

Pure economic loss is economic loss suffered by the plaintiff, which is not consequential upon injury to the plaintiff or damage to the plaintiff’s property. OR Pure economic loss is economic loss, which does not flow from damage to person or property.

Two distinct categories of action are identified by the courts:

1. Negligent acts leading to pure economic loss: and 2. Negligent statements leading to pure economic loss


 * Pure economic loss: Early Developments**

Earlier cases restricted claims for pure economic loss to instances where misrepresentation was fraudulent or where a duty arose from breach of statute, contract or fiduciary obligation - Norton v Asburton [1914]

The policy basis: the fear of imposing liability "in an indeterminate amount for an indeterminate time to an indeterminate class"

Limited recognition of a duty of care for negligent advice leading to economic loss: Hedley Byrne Co Ltd v Heller Partners Ltd [1964] - negligent misstatement causing pure economic loss.

The Facts: Bank gave a reference to the plaintiff about the financial position of the banks client. The plaintiff suffered financial loss through entering a contract with the client in reliance on the bank’s reference. The Decision: Bank was held to be negligent in giving a credit reference that caused loss. There must be an establishment of a special relationship created between the parties, thus it creates the duty of care owed.

‘If someone possessed of a special skill undertakes quite irrespective of contract to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise’ per Lord Morris (Reliance is key)

Mutual Life & Citizens' Assurance Co. Ltd. v. Evatt (1970)

The Facts: The defendant MLC, a substantial shareholder in HG Palmer Ltd. MLC circulated its policyholders (including Mr Evatt) suggesting that they invest in HG Palmer Ltd. At the time the advice was given HG Palmer were in serious financial trouble eventually going into liquidation causing Mr Evatt loss of his investment. The Decision: The Privy Council (House of Lords hearing an overseas appeal) restricted the application of Hedley Byrne by drawing a distinction between the liability of persons gratuitously passing on information and those who are in the business of giving advice of the kind given. The plaintiff lost his case. The result may have been different if MLC had been a stockbroker.

“The main ground for limitation was that it was only possible to fix an appropriate standard of care by reference to the business or professional skill necessary to give the appropriate advice” (The emphasis seemed to be on advice provided by someone possessed of the a special skill)

In establishing a duty/standard of care, Lord Reid stated:


 * Plaintiff must be trusting or replying on the defendant’s advice
 * The defendant must know or have reason to know of that fact
 * The circumstances of the case must make reliance reasonable


 * Negligent Misstatements**

In general D is liable for negligent advise/information that is provided to P which P relies and suffers economic loss.

Shaddock v Parramatta CC (1980) - Council liable for negligence misstatements. The Facts: The plaintiff had applied to the council for a certificate as to the possible widening of a road, which would affect a property the plaintiff proposed to buy. The plaintiff’s agent telephoned the council to be informed that the land was not affected and this was later confirmed by an official certificate from the council. The court pointed out that the telephone information would not have rendered the council liable. The written information however rendered the council liable because it knew that the plaintiff was likely to act on the basis of the information. The Decision: The court held that a person would be liable for negligent misstatement where the advice is given on a serious business occasion from a person with the professional skills to do so. Also, the High court held that a duty of care existed in relation to the provision of information of this caliber. The phone call would be enough – if they phoned the town planning section of the council and asked for specific information. “Reasonable reliance”

San Sabatian Pty Ltd v Minister Administering Environmental Planning (1986) - proximity in establishing a duty of care, therefore pure economic loss resulting from a negligent statement can be claimed.

The facts: Plaintiff purchase land in reliance on a scheme adopted by the council. The scheme was abandon and the developer suffered a financial loss. The Issue: Whether Minister and the Sydney City Council liable for the negligent preparation by the State Planning Authority and publication by the Council of a redevelopment plan (scheme) containing representations in reliance upon which developer had acquired land and sustained a loss? The Decision: The duty of care in relation to statements has been extended beyond statements made to a particular person for a particular purpose and even beyond statements made to a third person for the known purpose of communication to the person who sustains the loss. There are circumstances in which the maker of a statement owes a duty of care to a person who reasonably relies on the statement although the statement was not made to that person either directly or purposely through a third person

Where pure economic loss results from a negligent statement, “the element of reliance plays a prominent part in the ascertainment of a relationship of proximity between the plaintiff and defendant and therefore the ascertainment of a duty of care”.


 * Esanda Finance v Peat Marwick (1994)** **- Reliance on information that was not issued to the recipient does not create a duty of care.**

{need to read this case – don’t really understand*} The Facts: In reliance upon the audited accounts, the plaintiff entered into transactions whereby it lent money to companies associated with Excel, accepting a guarantee from Excel, and purchased debts from Excel. The transactions resulted in loss to the plaintiff by reason of Excel’s financial position. The Decision: High Court held that the D did not owe the P a duty of care because there had been no request for information or intention to induce the financier to act upon the accounts.


 * The Issue of Skill**

Shaddock v Parramatta CC(1980) - With all respect I find it difficult to see why in principle the duty should be limited to persons whose business or profession includes giving the sort of advice or information sought and to persons claiming to have the same skill and competence as those carrying on such a business or profession, and why it should not extend to persons who, on a serious occasion, give considered advice or information concerning a business or professional transaction. (Gibbs J in Shaddock)


 * The Conditions**

Special relationship between P and D: such a relationship would not be found to exist unless, at least, the maker of the statement was, or ought to have been, aware that his advice or information would in fact be made available to and be relied on by a particular person or class of persons for the purposes of a particular transaction or type of transaction. - Mutual Life & Citizens' Assurance Co. Ltd. v. Evatt (discussed previously in Pure economic loss: Early Developments)

- If the representor realizes or ought to realize that the representee will trust in his special competence to give that information or advice; - If it would be reasonable for the representee to accept and rely on that information or advice; - If it is reasonably foreseeable that the representee is likely to suffer loss should the information turn out to be incorrect or the advice turn out to be unsound


 * ADVICE versus INFORMATION**

Although the giving of advice must always necessarily require an exercise of skill or judgment, and the giving of information may not necessarily do so, a person giving information may be so placed that others can reasonably rely on his ability carefully to ascertain and impart the information.


 * The ‘CALTEX PRINCIPLE’**

Property damage may constitute the basis for the claim in pure economic loss: before Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. it appeared to have been established that a plaintiff who sustained economic loss which resulted from loss or damage negligently caused to the property of a third person was not entitled to recover damages, as seen in


 * Caltex Oil v The Dredge Willemstad (1976)** - Pure economic lost suffered by plaintiff due to damage to 3rd party property.

The Facts: there was no physical damage to the property of the plaintiff but damage was caused to the property of a supplier of raw materials to the plaintiff’s production plant. The damage was to a pipeline across Botany Bay conveying oil products to the plaintiff’s storage facility. The defendants were well aware of the pipeline and had charts and sophisticated navigation equipment to ensure that no damage occurred. Even so the pipeline was damaged causing the plaintiff to use trucks to transport the products by road to its storage facility at an increased cost. The Decision: The plaintiff succeeded on the basis that there existed between the plaintiff and the defendant a relationship of ‘proximity’ arising from the defendant’s knowledge of the potential harm to the plaintiff. As pointed out the notion of proximity was not new. It was first mentioned by Lord Atkin, however the courts did not immediately take up the idea, as it was at the time more convenient to develop the law along the basis of the defendant’s ability to foresee damage to his or her neighbour.

The Facts: D introduced plant disease onto land of one farmer in SA by supplying infected seeds for planting; WA regs prohibited import into WA of potatoes grown within 20 km of land affected last 5 years. The plaintiffs were involved, in various ways, in potato growing on such land, and claimed to suffer financial loss
 * Perre v Apand (1999) (HC)** - Proximity was overlook with the principle of vulnerability, as defendants were unable to protect themselves.

The Issue: The issue is whether the defendant who caused harm owed a duty of care to all or any of them The Decision: The justices abandoned proximity as the sole basis of identifying a duty of care and took a number of individual approaches the most notable being the plaintiffs’ vulnerability and inability to protect themselves. Proximity however still continued a potential test. The plaintiffs were successful.

Christopher v MV ‘Fiji Gas’ - Knowledge of pure economic loss must be known by defendant.

The Facts: The members of a fishing crew who suffered loss of earnings through damage to the fishing vessel on which they were employed were found to have no cause of action in negligence against the person who damaged the boat. The Decision: This case supports the stringent test of the knowledge of the plaintiff’s circumstances required of the defendant in relation to pure economic loss from negligence.


 * Other Situations of Pure Economic Loss**

Bryan v Maloney (1995) - Builders have a duty to future owners of a defectively built structure, not just to the initial purchaser.

The facts: A Builder built a house for the initial owner, which had footing defects. A subsequent owner brought the house and the structure failed due to the defect. The Decision: It was held by the High Court that a builder owed a duty of care to the second purchaser of a house he had constructed previously. The relationship of proximity was found in the continued existence of the house, which the defendant ought to have known to be likely to cause economic loss to a subsequent purchaser if not properly constructed ( Previously stated in Products liability)

It was not open to the trial judge or the Full Court to find that the owner relied on the builder, or to infer reliance. There was no evidence that she knew the identity of the builder before deciding to purchase. Nor was there evidence that she inquired whether the house had been built by a qualified builder

The owner can recover damages for pure economic loss only if she establishes a sufficient relationship of proximity between the builder and the owner so as to give rise to a duty of care on the part of the builder not to cause such economic loss.

It is difficult to see why, as a matter of principle, policy or common sense, a negligent builder should be liable for ordinary physical injury caused to any person or to other property by reason of the collapse of a building by reason of the inadequacy of the foundations but be not liable to the owner of the building for the cost of remedial work necessary to remedy that inadequacy and to avert such damage

Hawkins v Clayton (1988)

The Facts: Failure to notify executor of the death of testatrix substantial fine imposed as a result of death duties The Decision: The tort duty of care was a complete replacement for implied duties of care arising under the contract. Whereby, the reliance on a contractual basis was rejected and replaced with the duty of care of the defendant to take reasonable steps to inform the executer of their legal right and appointment.

Van Erp v Hill - Failure of solicitor to ensure that spouse of beneficiary did not witness execution of will with resultant economic loss to P. =Tort Law - Topic8 Particular Duty Areas in Negligence 2=
 * Supervision and Control of Others**

This involves 2 duty situations:

1. Duty to control others to prevent damage to 3rd parties. 2. Duty to protect others under D’s control.

In general the common law does not impose a duty to control the actions of others: No duty arises simply because one can foresee the likely risk of injury from conduct of another Parents cannot be generally held liable for the conduct of their children. However where D is shown to have parental control D has a duty to exercise reasonable care to prevent the child from inflicting damage on others. Whether D has exercised the appropriate level of care is a question of fact (Smith v Leurs)

The Facts: Parents entrusted their son with a weapon, owed a duty of care to other persons based on their special relationship of control over the boy, However, they seek assurance that he wont use the weapon outside the house, thus no duty for injuries outside the home.

Teachers and school authorities may also have a duty of care with respect to the activities of the children in their care


 * Police and Government authorities:**

- Hill v Chief Constable of West Yorkshire (Failure to control criminal behaviour; No duty on the grounds of policy) Police held no duty of care to members of the public apprehend a particular criminal due to policy considerations by High Court.

The duty to control others: Children

Þ Geyer v Downs (school kid hit with softball bat before school – school guilty because they were there) Þ No recognition of a parent’s duty as such to look after a child. Þ Robertson v Swincer (4 year old hit by car while parents talking to friends – contributory negligence? Parents owe duty of care? Þ ”The prospects of a parents assets being at risk because of a momentary failure of supervision judged by a court against an objective standard of reasonable care has alarming personal implications for parents and disturbing implications for society generally” Þ Depends on facts à Circumstances à Reasonably Foreseeable


 * Supervision of Others: The Issue of Liability**


 * Cth v Introvigne** **– no teacher on duty.**

Liability may arise where there is a relationship between the custodian and the victim “which exposes that person to a particular risk of damage in consequence of that escape which is different in its incidence from the general risk of damage from criminal acts… which he/she shares with all members of the public”

Swan v South Australiaà The parol board was under a duty once informed about the conduct of the prisoner on parol.


 * Public Authorities**

Part 5 of the Civil Liability Act (Sections 40 to 46) à Discussed in Defective structures under Councils & Statutory Authorities.

• Section 42 sets out the principles to determine duty of care exists or has been breached (ie. financial and other resources reasonably available, allocation of resources, broad range of its activities, and compliance with the general procedures and applicable standards) • Section 43: act or omission not a breach of duty, unless it so was unreasonable that no authority having the functions in question could properly consider it as reasonable. • Section 44: Removes the liability of public authorities for failure to exercise a regulatory function if the authority could not have been compelled to exercise the function under proceedings instituted by the Plaintiff. • Section 45: Restores the non-feasance protection for highway authorities taken away by the High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001)

“When a statute sets up a public authority, the statute prescribes its functions so as to arm it with appropriate powers for the attainment of certain objects in the public interest. The authority is thereby given a capacity which it would otherwise lack, rather than a legal immunity in relation to what it does, though a grant of power may have this effect when the infliction of damage on others is the inevitable result of its exercise… There is, accordingly, no reason why a public authority should not be subject to a common law duty of care in appropriate circumstances in relation to performing, or failing to perform, its functions, except in so far as its policy-making and, perhaps, its discretionary decisions are concerned” (per Mason J in Sutherland Shire Council v Heyman)


 * Public Authorities & Rule of Law**

Applying the same rules of civil liability to the actions of public authorities or corporations.

Þ The rationale: No legal or natural person is above the law. Þ The difficulties: The rationalisation and provision of public utilities and community facilities necessarily distinguish public corporations from ordinary citizens.

Basic concepts: - Breach of duty à Breach may be act (misfeasance) or omission (non-feasance)


 * Not every non-feasance provides basis for liability.

Þ Negligent omissions are actionable Þ Mere/neutral omissions are not actionable unless the D is under a pre-existing duty to act - South Tweed v Cole


 * Powers and Duties**

Duty - Obligation to act. The statutory provision/function is cast in mandatory terms.

Þ Once content of duty is determined, the question of breach is a question of fact. Þ Breach duty attracts liability.

Power - Statutory function cast in permissive terms.

Þ Confers on the power holder a choice to act in a particular way. Þ Failure to exercise choice may not be illegal.

Power = Choice (Statute use of the word “may”) Duty = Obligation (Statute use of the word “shall”)


 * PUBLIC AUTHORITIES:** The Planning & Operational Dichotomy

Planning decisions of public authorities as based on the exercise of policy options or discretions and involving or dictated by social or economic considerations are in general non-reviewable and would not provide the basis for a duty

The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints

Operational decisions by which policy decisions are implemented are however subject to the duty of care, as seen in,

L v Commonwealth (sexual abuse in prison, D held liable for operational failures)

Parramatta CC v Lutz (1988) - failure to order the demolition of building P’s property catches fire (Discussed in Defective structures under Councils & Statutory Authorities.)

The Facts: Plaintiffs complained to council about a vacant house next to hers. She complained that if a fire broke out it could be a risk to her property. Council served a notice to the owners of that house that if the problem wasn’t rectified in 60 days, the council will intervene. 60 days passed and council did not intervene, a fire broke out and the plaintiff’s house was destroyed. The Decision: The council was held liable in negligence to the plaintiff. The courts held that the council was negligent in the exercise of statutory powers and the basis of the plaintiff’s detrimental reliance of the council. In other words, the council had moved from the discretionary into the operational area.

Intra Vires + Policy = Not actionable Ultra Vires + Policy = Actionable Not Policy but operational = Actionable

=Topic 9 Vicarious Liability= **Vicarious Liability**
 * Vicarious Liability**

One person is held liable for a tort committed by another person. Always Strict Liability

Categories of Vicarious Liability:

• Employer and servants • Employer and Independent contractors • Principal and agent

Vicarious liability makes D (usually the master/employer) liable for the torts of another (usually his or her servant/employee) although the master is without any blame or fault.


 * Justification for Vicarious Liability of Employers**

• Desirability of providing a solvent defendant • Servant being generally unlikely to be worth suing • Capacity of master to absorb the cost of liability as part of the cost of the enterprise • Justness of the conclusion that profit-making enterprises should be made to compensate for losses inflicted by the enterprise on third parties, where those losses are caused by persons within the enterprise • Deterrent to encourage employers to institute proper safety standards within the enterprise


 * Who is a Servant?**

A servant is one who is under a contract of service to another, an independent contractor is under a contract for services.

The contractor is paid for the job by results rather than for time spent, receives a fee or commission, the servant receives wages. The contractor is usually employed on a casual basis, the servant on a permanent basis.

The contractor usually specifies his/her work schedule and supplies his/her own tools.

The master may select the servant for the task.

Stevens v Brodribb Sawmilling (1986) - confirmed the existence of two tests to distinguish the servant from the independent contractors. The control test and the integration into the enterprise; the control test having priority.


 * Integration Test** – whether the employee is ‘part and parcel’ of the organisation: Stevenson v Macdonald [1952]


 * The Control Test** – used to determine the type of relationship involved, therefore establishing whether vicarious liability will apply.

Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) pointed out that the control test was based on the right to control the activities of the employee.

The court looks more to the practice of the parties rather than the contract itself.

If the Master controls what the employee does and how it is done, then the employee is a servant. The relationship will give rise to Vicarious Liability.

Zuijs v Wirth Bros: The case of the trapeze artist

What is essential is whether there is lawful authority to command or give directives if there is scope for it: Stevens v Brodribb Sawmilling Co Pty Ltd (1986)


 * WHO IS A SERVANT? THE CONTROL TEST**

If the Master controls what the employee does and how it is done, then the employee is a servant. The relationship will give rise to Vicarious Liability.

Zuijs v Wirths Bros Circus - Held by the High Court to be a worker because of an application of the control test.

The Facts: Zuijs was a acrobat for the circus and was injured during his employment. The Issue: Was Zuijs an employee or independent contractor under a control test? The Decision: The factors that were taken into consideration were the obligation of the acrobat to dress as directed, attend rehearsals and participate in the grand parade. Otherwise there was little opportunity for the acrobat to be controlled in doing his work and the work was highly skilled

The finding meant that the worker received compensation for and injury he received.

Stevens & Gray v Brodribb Sawmill - Plantiff were held to be an independent contractor due to the implementation of the control test.

The Facts: Stevens and Gray were engaged by the sawmill, as bulldozer and truck drivers. Each owned there own vehicle and worked in the bush loading and transporting logs for the sawmill. They serviced and supply fuel for their own vehicles and were paid on the basis of the volume of logs transported. The Sawmill did not deduct tax form their payments. One was injured and claimed compensation as employee. Held: Courts held that they were not employees but rather independent contractors due to the control test, as the degree of control was minimal. Also, the matters regarding the following were taken into consideration for the control test:

§ P had their won equipment. § Set own working hours § Paid by volume of workload § No guarantee of work § No tax deduction from pay. § Grey had delegated work


 * In the Course of Employment**

Commonwealth v Connell (1986): The defendant is liable only if the servant committed the tort in the course of his or her employment.

The question asked is: Was the employee doing what he or she was employed to do?

Century Insurance Co Ltd v Northern Ireland Transport Board [1942] shows that a breach of an express prohibition by the servant will not place the servant automatically outside the course of employment.

Limpus v London General Omnibus Co (1862) - racing a bus against another bus in the course of its service operations contrary to the master’s instructions has been held to be within the course of employment.

Ilkiw v Samuels [1963] - Diplock J stated that it was a prohibition on the mode of carrying out the job; that is, a prohibition against conduct ‘within the sphere of employment’. Employer was therefore liable for the negligence of the servant in entrusting the driving of a truck to an unqualified driver.

• ‘Frolic’ of servant’s own

Actions of the employee were not ‘reasonably incidental’ to their duties. Hilton v Thomas Burton [1961]: workers finished work early and had an accident on their way to a café.

• Temporal limits of employment

Period of employment begins from the moment the servant starts work. Ruddiman & Co v Smith (1889): leaving on of taps in a washroom by a servant who had completed his working day was found to be in the course of employment.

• Assault by servant

An excessive mode of performing his or her duty to the employer. Deatons Pty Ltd v Flew (1949): barmaid who flung a glass towards a customer was a private act of retaliatory self-defence. Her actions were not connected with, or within the scope of, her duties of maintaining the bar.

Deatons v. Flew (1949)

The Facts: Here a barmaid who had been verbally and physically assaulted by a drunken customer threw a glass of beer in his face. The glass slipped and blinded the customer in one eye. The customer sued the hotel owner for damages. The Decision: The High Court held that the barmaid was the agent of the hotel owner only for the purpose of serving customers but not for the purpose of defending herself against assault and accordingly the hotel owner was not liable.

• Dishonesty by servant

Must be some nexus between the dishonest act of the servant and the circumstances of the employment for the employer to be liable. Morris v Martin & Sons Ltd [1966]: employer liable as the stole was stolen by the servant in the course of employment. The servant’s duty being to clean the stole. **Continued on page 2**


 * continued**
 * Employer and Independent Contractors**

The independent contractor is regarded as the principal, therefore the employer not liable for works carried out by the contractor.

Circumstances where an employer may be liable for an independent contractor:

• Employer has authorised the contractor to commit the tort; • Employer negligent in the choice of the contractor; • Employer negligent in the instructions given to the contractor; and • Employer may have committed through the contractor a tort of strict liability.

The courts have chosen to rationalise the liability of an employer on the basis of the employer’s breach through the contractor of a non-delegable duty of care binding the employer: Burnie Port Authority v General Jones Pty Ltd (1994)


 * Non-delegable duty of care**

Vicarious liability arises in circumstances “when the law holds one person responsible for the misconduct of another, although he is himself free from blameworthiness or fault” (Fleming J, Law of Torts (9th edition) at 409)

Non-delegable duty arises in circumstances where a person cannot be excused from liability even if reasonable care is exercised in entrusting responsibility to another person.

5Q Liability based on non-delegable duty
 * Civil Liability Act:**

• The extent of liability in tort of a person ("the defendant") for breach of a non-delegable duty to ensure that reasonable care is taken by a person in the carrying out of any work or task delegated or otherwise entrusted to the person by the defendant is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task.

• This section applies to an action in tort whether or not it is an action in negligence, despite anything to the contrary in section 5A.

Non-delegable duty of care arises in protective relationships such as:

• Master and servant; • School authority and principal; • Hospital and patient; • Occupier and lawful visitor or contractual entrant; • Rylands v Fletcher situations and • Bailees and sub-bailees.

Employer is not liable for collateral or casual negligence of contractor in carrying out work.

Ellis v Wallsend District Hospital (1989) – hospital not liable for the negligence of the servant as he had been privately consulted by the patient and the hospital had merely lent its facilities and support staff to carry out the operation.

Albrighton v Royal Prince Alfred Hospital (1980) – hospital was liable as the patient went directly to the hospital for advice and treatment.


 * Principal and agent**

Generally, vicarious liability does not apply to the principal and agent relationship.

It can however, become be established where the principal appoints an agent to represent him or her in dealings with third parties.

The test used is narrower than that of the course of employment. Only arises in relation to acts done with reference to carrying out their authority. Arises in relation to statements or representations made by the agent.

Burnie Port Authority v General Jones Pty Ltd (1994)

P suffered damage when a large quantity of its frozen vegetables was ruined by a fire which destroyed D’s building where the vegetables were stored. At the time of the fire, D’s building was being extended with the construction of further cold storage facilities. That building work had introduced hazardous substances to the site. Welding works on the site then ignited the substances, causing the blaze. The Supreme Court of Tasmania found D’s liability lay in accordance with the Rylands v Fletcher rule. On appeal by D:

HELD, dismissing the appeal: D, having allowed its independent contractor to introduce dangerous substances to the site, owed a non-delegable duty of care to P to ensure that its contractor took reasonable steps to prevent the occurrence of a fire. The breach of that duty of care attracted liability under the ordinary principle of negligence. “The rule in Rylands v Fletcher, with all its difficulties, uncertainties, qualifications and expectations, should now be seen, for the purposes of the common law of this country, as absorbed by the principles of ordinary negligence. Under those principles, a person who takes advantage of his or her control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another”.

Rylnds v Fletcher (1968)

D arranged for the construction of a water reservoir on its land for use in connection with its mill operation. Underneath the close of the land on which they proposed to construct the reservoir there was certain old and disused mining shafts and passages. The weight of the water in the reservoir broke through those shafts, passed down the passages and into the workings under nearby land owned by P and flooded P’s mine, causing considerable damage.

The judgment of the Court of the Exchequer Chamber delivered by Blackburn J: “We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by shewing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major; or the act of God…”

HELD, (on appeal to the House of Lords): Their Lordships expressly approved the judgment of the Exchequer Chamber. Lord Cains went on to state: “…on the other hand if the defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land…and if in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass of into the close of the plaintiff, then it appears to me that which the defendants were doing they were doing at their own peril…”.

**Defences to Actions in Negligence**


 * Common Law**

• Contributory negligence • Voluntary assumption of risk • Illegality


 * Civil Liability Act (CLA)**

Pt 1A ss5F to 5I: Assumption of Risk & ss5R to 5T: Contributory Negligence

Pt 5 s45 “Highway Immunity” restored Pt 6 Intoxication Pt 7 Self-Defence & Recovery by Criminals

Examples of Contributory Negligence

Insurance Commission v Joyce (1948)

The facts: The case for the plaintiff was that while he was being driven in D's car as a gratuitous passenger D drove so negligently that the car first ran into a stationary truck and then into a fence and P was seriously injured. Both parties were found drunk The Decision: The High Court refused the plaintiff’s appeal on the basis that as he had chosen to ride in a car driven by a man who was clearly intoxicated, he could expect only the standard of driving of a person in that condition.

Alternatively, the plaintiff had voluntarily assumed the risk of injury or been guilty of carelessness toward his own safety that amounted to contributory negligence.

South Tweed Heads Rugby League Football Club Ltd v Rosellie Jonnell Cole & Or [2002] NSWCA 205 (12 July 2002) (‘Spumante Case’)

The Facts: First Respondent (Ms Cole) was seriously injured when struck by a motor vehicle driven by the Second Respondent (Mrs Lawrence). The First Respondent had been drinking at the premises operated by the Appellant (Club) and had consumed a large quantity of alcohol throughout the day

The Decision: Per Santow JA:

– (2) The result in the case follows whether the reasoning is expressed in terms of the existence or absence of the duty of care, or the chain of causation being broken by the deliberate act of the plaintiff, or the principles of volenti non fit injuria or novus actus interveniens.

Robert Allan Moore v Reece Gordon Woodforth [2003 NSWCA 9]

The Facts: On 3 January 1998 P the appellant was injured when struck by the propeller of a motor boat owned and driven by D the respondent. The appellant was snorkelling in the Swansea Channel at the entrance to Lake Macquarie. The Decision: A defence of volenti non fit injuria (Voluntary assumption of risk) was rejected, but damages were reduced by 40% for contributory negligence

The Contributory Negligence of P

(1) not taking a diver's flag, (2) spearfishing near a navigational buoy, (3) relying only on the plaintiff's hearing to warn him of approaching boats, (4) not wearing a fluorescent wet suit and (5) "flaunting of the prohibition against spearfishing".

Volenti and Contributory Negligence

"[T]he law of torts has never established a firm line identifying when the principle of the volenti ceases to operate and questions on contributory negligence cut in." per Spigelman CJ in Desmond v Cullen [2001]


 * Contributory Negligence**

//Traditionally// contributory negligence was a complete defence in Common Law. Where an accident was caused by the combined negligence of the P and the D, then however slight the negligence of P might have been in comparison to D, P could not recover unless D was found to have had the last opportunity to avoid the harm


 * Contributory Negligence: The nature of the P’s conduct**

The defence is established if the defendant proves the plaintiff guilty of conduct which amounts to a failure to take care for his/her own safety

To plead the defence, D bears the onus of proof and must prove the requisite standard of care that has been breached by P.


 * The Substance of Apportionment Legislation**

Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering damage, but damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage (Law Reform (Miscellaneous) Act 1965 (NSW) s10


 * Motor Accidents Compensation Act 1999 s 138**

A finding of contributory negligence must be made in the following cases:

– Where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident… – Where the driver’s ability to control vehicle was impaired by alcohol and the P as an adult voluntary passenger was/ought to have been aware of this… – Where the injured party (not being a minor) was not wearing set belt/protective helmet, and was required by law to wear such belt/helmet


 * Civil Liability Act Part 8**

The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm - CLA 5R

S5S: In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

5R Standard of contributory negligence

(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

(2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and //(objective)// (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time. //(subjective)//


 * 5S Contributory negligence can defeat claim**

In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

5T Contributory negligence—claims under the Compensation to Relatives Act 1897

(1) In a claim for damages brought under the Compensation to Relatives Act 1897, the court is entitled to have regard to the contributory negligence of the deceased person.

(2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897.


 * Contributory Negligence of Rescuers**

Azzopardi v Constable & Azzopardi v Thompson [2006] NSWCA319

The Fact: The NSW Court of Appeal has found that two rescuers hit by a motor vehicle contributed to their injury by not taking due care when assisting another motorist. The two rescuers were dressed in dark clothing, neglected to turn on their vehicles' hazard lights and were not alert to oncoming traffic. The Decision: Hodgson JA and McColl JA both reduced the damages payable to the rescuers from 75% to 50%. Ipp JA dissented, finding that the rescuers ought to have been more careful when in a position of such obvious danger, and would have reduced the damages to 25%.


 * THIS IS AN IMPORTANT CASE FOR CONTRIBUTORY NEGLIGENCE**

Joslyn v Berryman: Wentworth Shire Council v Berryman [2003]

FACTS: Mr Berryman drank enough alcohol in the company of Ms Joslyn on Friday evening, 25 October 1996, to be so intoxicated as to feel "fairly crook" on the following morning.

He worked during the day on Saturday, rested for a time, and then, at about 9pm went to a party at a property near Dareton in south-western New South Wales. With one interruption, at about 11.30pm, Mr Berryman spent his time at the party, until about 4am, drinking alcohol. By that hour he admitted that he was beyond doubt, quite drunk. He went to sleep on the front seat of his utility motor vehicle. In his evidence he claimed to have no further recollection until he heard a scream, and realized that he was a passenger in his vehicle, which was turning over.

Mr Berryman had been friendly with Ms Joslyn before the Friday night preceding the accident. He was aware that she had lost her driving licence on her conviction for driving a motor vehicle with a blood alcohol content of 0.15g/100ml.

Early in the morning of the Sunday Ms Joslyn had placed her swag on the ground beside Mr Berryman's vehicle and had gone to sleep. Ms Joslyn woke not long after daylight, having heard Mr Berryman moving about in his vehicle. No one else was up at that time.

Mr Berryman then drove, Ms Joslyn as a passenger into Mildura, along the road upon which the vehicle was later to overturn. The journey took some 15 to 20 minutes. When they arrived at a McDonald's café, Mr Berryman entered, ordered food, paid, drove towards the river, stopped and ate the food. He did not drink alcohol in that time.

Ms Joslyn said Mr Berryman had commenced the drive back to Dareton, but, at some time after they entered Hollands Lake Road she noticed he was dozing off. She must have reproached him for doing so for he said, "Well, you drive the car then."

He stopped the vehicle and exchanged places with Ms Joslyn. She then commenced to drive it and did so to the point of the accident.

Ms Joslyn said that she and Mr Berryman spent the Friday evening drinking together until after midnight at hotels in Wentworth. Afterwards they returned to Ms Joslyn's residence where they continued drinking.

Ms Joslyn took a bottle of whisky with her to the party on the following Saturday evening. She travelled as a passenger in a car with three other women. Ms Joslyn drank from the bottle at the party. She too was seriously affected by alcohol, and the blood alcohol reading, some hours later, was 0.102g/100ml. Indeed Ms Joslyn was observed by others at the party to be "quite drunk and staggering about" at 4.30am.

Ms Joslyn had last driven a vehicle three years earlier. She had at some time previously told Mr Berryman of that. She did not see the curve until the last minute. "It was just there all of a sudden and it turned really sharply and the car wouldn't go round the bend."

By the time the vehicle entered the curve Ms Joslyn had been driving, she estimated, for a couple of minutes at most. She could not say at what speed she travelled as the speedometer of the vehicle was broken.

Describing the curve where the vehicle left the road and overturned, she said that it looked as if it were just a simple curve "and then it goes right back around sharply". That was something she realized when she was already in the curve. Mr Berryman suffered serious injuries in the accident.

HELD: Boyd-Boland ADCJ found for Mr Berrymen but reduced damages by 25% for contributory negligence.

NSWCA - Priestley JA, Meagher JA and Ipp AJA upheld Mr Berryman's appeal by holding that he was not guilty of any contributory negligence at all. The leading judgment was given by Meagher JA with whom the other members of the Court agreed.

"His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff. The only action of his which could possibly have amounted to contributory negligence was permitting Miss Joslyn to drive instead of him. In this regard, one must view matters as they stood at the time of handing over control of the car, (not as they were in the previous 24 hours), a task which his Honour did not really undertake. One must also, if one concludes that at the time of handing over Mr Berryman was too drunk to appreciate what was happening, a situation as to which there is no evidence in the present case, judge the question of contributory negligence on the hypothesis that the plaintiff did have sufficient foresight to make reasonable judgments. But, although at the time of the accident the blood alcohol levels of Miss Joslyn and Mr Berryman were estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no evidence that either of them were drunk at the time, and certainly no evidence that at the time Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication. Indeed, quite to the contrary. Of the people who were present who gave evidence, all said that Miss Joslyn showed no signs of intoxication. His Honour so found. Despite, therefore, one's reluctance to overrule a trial judge's finding on apportionment (Podrebersek v Australian Iron and Steel Pty Ltd), it seems quite impossible to justify his Honour's conclusion on contributory negligence. I would be in favour of reducing it from 25% to 0%."

Gummow & Callinan JJ - Considered the effects of alcohol and knowledge of the alcohol consumption in Contributory negligence.

“A person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk, not only during the immediately preceding evening, but also on the night before that.

Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them... Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol”. • **HC – McHugh, Gummow, Callinan, Kirby & Hayne JJ allowed the appeal (ie. Overturned the decision of the NSWCA)** • **Besides criticism of the NSWCA for not referring to s.74 MAA 1988 (ie. contrib neg shall be made unless found not to have contributed), Gummow and Callinan JJ found the NSWCA erred in fact.**
 * Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them... Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol”.**


 * Motor Accidents Compensation Act 1999 s 138**

• A finding of contributory negligence __must be made__ in the following cases: – where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident… – Where the driver’s ability to control vehicle was impaired by alcohol and the P as an adult voluntary passenger was/ought to have been aware of this… – Where the injured party was not wearing set belt/protective helmet, and was required by law to wear such belt/helmet


 * Voluntary Assumption of Risk**


 * Complete defence. Hard to prove.**

In general where P voluntarily assumes the risk of a particular situation, she/he may not be able to maintain an action against D for negligence in relation to that situation

The elements

– P knew or perceived the danger – P must have fully appreciated the risk of injury created by the danger – P must have voluntarily accepted the **//physical and legal risk//**

Rootes v Shelton (1967) 116 CLR 383 Defendant has to show that the plaintiff actually accepted the risk. In this case court said that they had to appreciate the nature of the risk itself. Ipp Committee Report (2002) Subjective test: very difficult for the D to prove as mere knowledge alone does not imply consent. VAR is tough to prove for the D as D would have to prove: - P had full knowledge of the risk and - Voluntarily accepted the physical and legal risk //Canterbury Municipal Council v Taylor [2000] NSWCA 24// Taylor was the cyclist. Crashed into some dude and killed him on a track. Sued the council and said that they didn’t take enough care to prevent the interaction between users of the velodrome and the football players in the middle. He suffered nervous shock as a result of killing the dude. Council claimed Volenti and that Taylor assumed the risk of crashing by cycling. Held: That cyclist did not assume that by cycling he would have a crash with the football player. i.e. he did not have full knowledge of that particular risk.
 * Volenti v Contributory Negligence**
 * Elements of VAR**
 * Full Knowledge of Risk**

2 elements: The P must have voluntarily accepted that there was a: 1. Physical Risk (through injury) and 2. A risk that reasonable care would not be taken by the D (legal risk) - Imperial chemical Industries Ltd v Shatwell [1965] AC 656 If you had 2 workers collaborating carelessly so that the actions of both contribute to cause of injur to one of them – then that is CN. However if you have 2 people disobeying an order, that is that they knew the risk, then that is volenti – and that is a full defence.
 * Voluntary acceptance of risk**


 * Scanlon v American Cigarette Company Overseas Pty Ltd (No 3) [1987] VR 289**

If it is to be the case that the smoking of the said cigarettes involved risk of injury as alleged… the P knew or ought to have known that the smoking of the said cigarettes involved such risk and the P accepted, consented to and voluntarily assumed the same ( extract from D’s statement of defence)

Issue: whether VAR is based on subjective knowledge or an objective / constructive knowledge is sufficient

What constitutes acceptance of the risk?


 * Workers compensation law limits VAR in the workplace**


 * Risks Under the Civil Liability Act**

Voluntary Assumption Risk in the Civil Liability Act ( Part 1A, Division 4, S5F)

CLA 5F Meaning of “obvious risk”
 * Obvious Risk**

(1)an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

S 5I(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

Qualifications:
 * CLA 5G Injured persons presumed to be aware of obvious risks**

5G(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk’

5G(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.


 * Falvo v Australian Oztag Sports Association & Anor [2006] - Under 5G the risk was an obvious risk.**

The Facts: The plaintiff injured his knee while playing Oztag (touch football) on the defendant council's field. The field had several sandy patches where the council had ‘topped up' wear to the grass and the injury was suffered when the plaintiff stepped in one of these. The Decsion: Ipp JA, in his leading judgment, upheld the trial judge's finding that the field was in a fit condition and that the defendant was not liable. He found that the risk from the condition of the field was one substantially similar to many other fields used for amateur sport, and that the risk was obvious to all.


 * Eutick v City of Canada Bay Council [2006] (3 March 2006)**

The Facts:The plaintiff was a pedestrian who tripped over the ridge of a gully or depression in a roadway. In the leading judgment, Campbell AJA held that the risk was ‘very obvious', as part of the ‘normal incident[s] of life', and that it did not pose a significant risk. Held: This was held to be the case in spite of the fact of the injury and the amount of traffic on the roadway, which was said to have added to the risk. His Honour held the defendant council was entitled, having regard to ‘the obviousness of the risk, and the limited nature of the hazard posed by it, to expect that the exercise of reasonable care for their own safety by pedestrians would obviate the need for any further response' to the risk.

His Honour added that s5G(1) CLA put the onus of proving that ‘the risk was not insignificant' on the plaintiff, and that she had not discharged this.


 * CLA 5H No proactive duty to warn of obvious risk**

S5H (1) the defendant ‘does not owe a duty of care to another person ( "the plaintiff" ) to warn of an obvious risk to the plaintiff.

S5H (2) The defendant retains the duty to warn of obvious risks in the following cases:

(a) the plaintiff has requested advice or information about the risk from the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the risk, or (c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant

S5H (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.


 * Recreational Activities:**
 * Obvious Risks**

As a matter of law, there is a point at which those who indulge in pleasurable but risky pastimes must take personal responsibility for what they do. That point is reached when the risks are so well known and obvious that it can reasonably be assumed that the individuals concerned will take reasonable care for their safety (Prast v The Town of Cottesloe Ipp J )


 * CLA in relation to Recreation Activities**

5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person ( "the defendant") is not liable in negligence for harm suffered by another person ( "the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk.

s5L(2) specifically stipulates that the s5L(1) exclusion of liability for harm suffered as a result of obvious risk associated with recreational activities ‘applies whether or not the plaintiff was aware of the risk’.

5M No duty of care for recreational activity where risk warning (Refer to CLA)

(1)The fact that a risk is the subject of a risk warning does not of itself mean:

(a) that the risk is not an obvious or inherent risk of an activity, or (b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.

5N Waiver of contractual duty of care for recreational activities (Refer to CLA)

(1)Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.

(2)Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.


 * Fallas v Mourlas [2006]**

The Facts: The plaintiff was holding a spotlight from a vehicle, while others shot the kangaroos. He was accidentally shot by the defendant when the defendant tried to unjam his weapon, despite having given the plaintiff assurances that the weapon was not loaded. The defendant argued it was an obvious risk in the course of a dangerous recreational activity (s5L CLA).

Decision:


 * The court held unanimously (Ipp JA, Tobias JA and Basten JA) that spotlighting was a ‘dangerous recreational activity'.
 * Ipp JA and Tobias JA held that for the risk to be ‘significant' (s5K) it ‘must have been a somewhere between a trivial risk and a risk likely to materialise'. Ipp JA held that in determining whether a recreational activity was dangerous involved particularising and segmenting the activity where necessary.
 * The court held by majority (Ipp JA, Basten JA) that the risk that eventuated was not an ‘obvious risk' (s5F) in the course of a dangerous recreational activity because of the defendant's assurances that the gun was not loaded. It therefore ruled in favour of the plaintiff.


 * Inherent Risk**

5I No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

By engaging in a sport or pastime the participants may be held to have accepted the risk which are inherent in the sport… but this does not eliminate all duty of care of the one participant to the other

Lormaine Pty Ltd v Xuereb [2006] - The defendants could not be held liable in negligence by an inherent risk as established in s5I.

The Facts: The NSW Court of Appeal has held that a shipowner was liable for a woman's injuries when she was washed from the bow by a ‘rogue wave'. One of the defences raised by the shipowner was that the waves were an inherent and obvious risk of dolphin-watching.

Decision: However, the shipowner was unable to prove that the risk was obvious because the brochure had given the impression of a gentle cruise. Also, the ship's presence in a known ‘wave zone' meant that the risk was avoidable, not inherent. The woman's damages were reduced, however, because the trial judge had not considered pre-existing conditions and the plaintiff had failed to alleviate the symptoms by losing weight.


 * VAR in the Work Place**

Smith v Baker & Sons P (injured by falling rock while working a drill, fellow workers had complained of the danger previously, issue whether P voluntarily accepted the risk, held defence not applicable) The defence is not constituted by knowledge of the danger and acquiescence, but by an agreement to run the risk and to waive your rights to compensation

[Important Case]


 * Swain –v- Waverley Municipal Council [2005]**

• Pre-Civil Liability Act: “Obvious Risk” - The discussion of recreational activities and whether going to the beach is included under 5L & 5M of CLA. Also, IF the incident occurred in 1997 does the CLA apply in the 2005 Judgement? NO..

Facts: Three people went to the beach that afternoon, the plaintiff and his two companions. The conditions were benign; P argued the benign conditions hid a danger. P and his two companions (Mr Wilson & Ms Galvin) went into the water between the flags, and that was a strongly contested issue at the trial. Mr Wilson, went in first. He was wading out when he kicked something and it was the edge of a sandbar – a sharp sand wall – when he was about waist-deep. He did not see it before that.

Ms Galvin went into the water and stumbled into a level change, a variation in the water depth. She did not see that before she encountered it. P’s evidence was that he went into the water to about waist-deep or a little higher, when a wave came towards him. He dived – a “flat dive” – into the wave, and that is all he recalled until he realised that he was severely injured. He saw nothing. So, to that extent, there was a condition in the water, which was not obvious to those three people at least. D’s case was that by reason of drink and taking ecstasy the night before, P was reckless and was outside the flags

The lifeguard’s (Mr Nightingale) evidence was that he patrolled the beach. He could not say what had occurred with respect flag placement between 6 am and 10 am. From 10 until the afternoon when the accident occurred, the flags had not been moved, the conditions on the beach had not changed. He patrolled the beach and observed conditions in the water from his outlook post on the north end at the beach.

Mr Nightingale gave evidence that he could tell whether the water was shallow or deep, where there were sandbars and where there were not by the colouration of the water (ie. Sandbar is “yellowy” and deeper water is “darker green”). The flags would be moved if conditions required it. The determination of whether conditions required it was made by the lifeguards on duty at the time. Mr Nightingale’s evidence was that he both patrolled either on foot, an all-terrain vehicle, or observed from his position at the lookout post. Nobody asked Mr Nightingale whether there was any safer place to put the flags. Suffering a spinal injury in surfing was reasonably foreseeable. There was evidence of that inasmuch as the surf lifesaving club kept equipment to deal with spinal injuries.

- Damages had been agreed. - The jury found contributory negligence of 25 per cent (ie. presumably, diving under a very small wave) and the effect of that was to reduce the agreed damages to a judgment figure of $3.75 million.

HELD: NSWCA - Upon the appeal, the Court of Appeal being constituted by Chief Justice Spigelman (dissenting) and Justices Handley and Ipp (majority), the Court of Appeal split in favour of the Council.

During the course of the appeal the appellant Council amended and raised a ground of appeal that there was no evidence to support a finding that the placement of the flags was negligent. Ultimately, it was that ground alone which succeeded before the Court of Appeal. Chief Justice Spigelman, finding there was evidence, Justices Ipp and Handley finding that there was none.

Menzies QC: “The majority said that although it was safe to swim, although there may have been a representation that it was safe to swim, that is not to say it was safe to dive... Justice Spigelman’s position on that was surfing at Bondi Beach or anywhere else requires as part of the activity, diving, so that distinction really goes nowhere. If it was safe to swim then one has to accept, we say, it must incorporate safe to dive, obviously within reasonable bounds”

HC – 3-2 majority found in favour of Mr Swain BUT the appeal was limited to whether the NSWCA should have disturbed the jury’s finding of breach of negligence.

• Gleeson CJ: “The system does not regard the trial as merely the first round of a contest destined to work its way through the judicial hierarchy until litigants have either exhausted their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply retry the case.”

• McHUGH J: That is the only issue in the case, is it not? The issue is so narrow you can hardly see it. It is whether the representation that Mr Nightingale agreed the flags indicated that it is safe swimming includes safe diving through waves as you go out into the water... I would have thought 90 per cent of people, at least under the age of 50, get wet by diving through the first lot of waves they encounter, and this is what your client did, did he not?

• GUMMOW J: You see, your evidence was that the flags were not moved. That was your point. • MR MENZIES: Yes. • GUMMOW J: And you say it was up to your opponent to say some exculpation. Swain – Insight to how the HC view the operation of the CLA • MR MENZIES QC: Indeed, because obviously the defendant, in considering its duty, has to take into account that sometimes people do do risky manoeuvres and that may be the simple explanation for it. Of course, so far as closing every beach in Australia, that is of historical interest, certainly in New South Wales, because as a result of the Civil Liability Act the chances of this plaintiff, were he to proceed now and succeed in tort against the defendant, are nil. • KIRBY J: It cuts a little both ways, that it is Parliament saying that the approach of the courts in the past has been too generous or as Justice Thomas said “too Santa Claus”. • MR MENZIES QC: Your Honour, what it demonstrates, in our respectful submission, is the legislature doing its job as it perceives it to be and that is, there is a policy decision made, policy decisions generally speaking are for the legislature, not for courts. The legislature has decided as a matter of policy that these torts are no longer sound in damages in New South Wales for whatever reason. It is not a bad example of the separation of powers and the appropriate organ of Government. • KIRBY J: How is that done? Have you the section of the civil liability? Has that passed into law in New South Wales? • MR MENZIES QC: It is now, your Honour, yes. It was not relevant at the time. I did not include it on our list or provide copies, but it is the Civil Liability Act 2002 and it Division 5 “Recreational Activities” - - -

• GUMMOW J: What does it say? What is the critical provision? • MR MENZIES QC: Well, 5J: applies only in respect of liability in negligence for harm to a person (“the plaintiff”) resulting from a recreational activity engaged in by the plaintiff.

Recreational activity is divided into two kinds. There is;

• “dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm. That is in the definition section 5K, and:

• “recreational activity” includes:

(a) any sport. . . (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c) any pursuit or activity engaged in at a place (such as a beach . ..

5L No liability for harm suffered from obvious risks of dangerous recreational activities. ..

5M No duty of care for recreational activity where risk warning – so that liability would seem to be excluded if a risk warning is put up, assuming this is a recreational activity. If, on the other hand, as Chief Justice Gleeson points out, this might well be regarded as a dangerous recreational activity, you do not even have to put a sign up, that is the end of it.

• KIRBY J: It does not sound as though this is categorised. That is paragliding and things of that kind, I would have thought, because they say, “such as on a beach” in the definition of “recreational activity”. • MR MENZIES QC: True. •GLEESON CJ: What about recreational activities that are dangerous for some people, like people who cannot swim, and not dangerous for others? •MR MENZIES QC: I have no doubt that at some point that is going to entertain your Honours. •GUMMOW J: Here we are again, more imperfect law reform.


 * Illegality**

The traditional Common Law position on illegality is usually summed up in the Latin maxim ex turpi causa non oritur action which means that “no cause of action may be founded on an illegal act”

There is no general principle of law that a person who is engaged in some unlawful act is to be disabled from complaining of injury done to him by other persons, either deliberately or accidentally he does not become a //caput lupinum// (an outlaw) ( per Latham CJ: //Henwood v Municipal Tramsways Trust// Joint illegal Enterprise D must prove: 1. They and the P were jointly engaged in an illegal activity, and 2.

What is Illegality?

There are three possible interpretations of ‘illegal act’ in this context:

(a) action in breach of the criminal law; (b) criminal action and also conduct in breach of the civil law; (c) a criminal wrong, or civil wrong, or immoral behaviour.

Illegality: The Traditional Position in Common Law

There is no general principle of law that a person who is engaged in some unlawful act is to be disabled from complaining of injury done to him by other persons, either deliberately or accidentally he does not become a caput lupinum (an outlaw) - per Latham CJ: Henwood v Municipal Tramways Trust

Plaintiff Illegal Activity At common law; - Just because the P was engage in criminal conduct

Illegality under the Civil Liability Act

Section 54 Criminals not to be awarded damages

(1) A court is not to award damages in respect of liability… if the court is satisfied that:

(a) if… on the balance of probabilities… the conduct constitutes a serious offence, and (b) that conduct contributed materially to the risk of death, injury or damage

Presland v Hunter Area Health Service 2003 NSWSC 754 Brother was injured just after murdering someone.


 * The Scope of the section**

The section applies ‘whether or not a person whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned’

Self-Defence against Unlawful Conduct II & S52 No civil liability for acts in self-defence

S52 (1) ‘A person does not incur a liability … arising from any conduct of the person carried out in self-defence, but only if the conduct to which the person was responding: (a) was unlawful’… (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct.

S52(2) The defence is only available ‘if and only if’ at the time of the relevant act, the defendant believed the conduct was necessary:

(a) to defend himself or herself or another person, or (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them

S52 (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only:

(a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass.

53 Damages limitations apply even if self-defence not reasonable response

53(1) If section 52 would operate to prevent a person incurring a liability to which this Part applies in respect of any conduct but for the fact that the conduct was not a reasonable response in the circumstances as he or she perceived them, a court is nevertheless not to award damages against the person in respect of the conduct unless the court is satisfied that:

(a) the circumstances of the case are exceptional, and (b) in the circumstances of the case, a failure to award damages would be harsh and unjust.

53(2) If the court determines to award damages on the basis of subsection (1), the following limitations apply to that award:

(a) Part 2 (with the exception of Division 3 of that Part) applies with respect to the award of damages despite section 3B (1) (a), and (b) No damages may be awarded for non-economic loss.


 * The Test to Disentitle the Defence**

In each case the question must be whether it is part of the purpose of the law against which the P has offended to disentitle a person doing the prohibited act from complaining of the other party’s act or default

Italiano v Barbaro (injury sustained while parties were in the process of looking for a spot to stage accident)