PRINCIPAL AND AGENT
Vicarious Liability: Principal and Agent
• An agent is a person authorised by their principal to
legally bind the principal and third parties.
• The principal’s liability will arise in relation to acts of
the agent done in the course of carrying out the
principal’s authority (Soblusky v Egan (1960) 103 CLR
215, Scott v Davis (2000) 204 CLR 333).
Torts Week 11
2
Non Delegable Duty
• Lapore:
• A non-delegable duty is not a duty of care,
rather it is a duty to see that care is taken. The
implication is that that steps may be taken by
an employer to discharge a non-delegable duty
and so intentional conduct of the employee
cannot be included when the employer is not at
fault.
• However, there are no steps that can be taken in
vicarious liability to prevent liability.
Non-delegable Duty Of Care
• A non-delegable duty of care is a personal duty to take
care: to ensure that care is taken.
• It cannot be delegated to another.
• The common "element in the relationship between the
parties which generates (the) special …duty to see that
care is taken is that the person on whom (the duty) is
imposed has undertaken the care, supervision or
control of …another … as to assume a particular
responsibility for his… safety" Kondis v.
StateTransport Authority (1984) 154 CLR at 687 per
Mason J
Torts Week 11
4
Intentional Conduct versus
Negligence in Non delegable
dutiesNew South Wales v Lepore
• Gleeson CJ stated “The proposition that, because a school
authority's duty of care to a pupil is nondelegable, the
authority is liable for any injury...is too broad, and the
responsibility with which it fixes school authorities is too
demanding”.
• Gummow and Hayne JJ“all of the cases in which nondelegable duties have been considered in this court have
been cases in which the plaintiff has been injured as a
result of negligence...In the present cases...[n]either
plaintiff suffered injury as a result of any negligent
conduct of the teacher”
Relationships which give rise to nondelegable duty:
• Hospital/patient – Ellis v Wallsend District
Hospital (1989) 17 NSWLR 553; Albrighton v
RPAH [1980] 2 NSWLR 542
• School authority/student – Commonwealth v
Introvigne (1982) 150 CLR 258;
• Land occupier/danger to neighbour – Burnie v
General Jones Pty Ltd (1994)179 CLR 520
• Employer v Employee – Kondis v SRA (1984) 154
CLR 672.
Torts Week 11
6
CLA
• 5Q Liability based on non-delegable duty
– (1)
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.
Non-delegable Duty Of Care
Civil Liability Act 2002 (NSW), s 5Q
•A breach of a non-delegable duty is to be
determined as if it were vicarious liability.
•Galea v Bagtrans Pty Ltd [2010] NSWCA 350
– S 5Q applied to make employer ‘vicariously liable’ for the failure of
another person to exercise reasonable care where employer owed a
non-delegable duty of care. Per Hodgson JA at [65].
Torts Week 11
8
Lapore: The Court’s Approach
• While a school owes a non-delegable duty to its
pupils, that duty cannot be breached by a
deliberate and intentional act of sexual assault
on a student by a teacher.
• A non-delegable duty can only be breached if
someone (either the D or the person to whom
the person to whom the D delegated the task in
question) failed to take reasonable care.
Lapore: The CLA implications
• S 5Q(2) states that this applies in an action in tort whether or
not it is an action in negligence
• This seems to negate Lepore by providing that the D can be
held liable for breaching the non-delgable duty whether or
not they could have done anything to avoid the harm
• However, most of the Act’s provisions including s 5Q are
excluded by s 3B(1) with respect to intentional acts that are
intended to cause injury or death or amount to a sexual
assault or other sexual misconduct.
• So, Lepore would still be decided in the same way under s
5Q.
HOW DO THE COURTS
DETERMINE WHEN A DUTY IS
NON- DELEGABLE?
Defined Areas of Non Delegable
Duties
• Hospital and public patient
– This is the duty owed by the hospital to its public patients
• School authority and pupil
– But does not extend to sexual assault of students
• Employer and Employee
– The employer has a non-delegable duty to esnure a safe
working environment for the employee.
• Danger to neighbouring land users
•
What is the nature and scope of the
employer’s duty of care to the
employee?
• An employer owes a non-delegable DOC to its
employees to take reasonable care to avoid
exposing them to unnecessary risks of injury.
If there is a real risk of injury then the
employer must devise a method of operation to
eliminate the risk.
Hamilton v Nuroof (WA) Pty Ltd
• Facts: Labourer hired to help cover the roof of
6th floor building with bitumen. The 6th floor
was stepped back from the 5th and instead of
pulling buckets of bitumen up with rope (case
says perhaps to prevent dirtying the walls) they
were passed up by hand. The hot bitumen
went in his face and he flicked away and the
rest came down on him.
The Calculus: Dixon CJ and
Kitto J
• It has been said that a reasonable and prudent employer
is
–
bound to take into consideration the degree of injury likely to result;
–
bound to take into consideration the degree of risk of an accident;
– entitled to take into consideration the degree of risk, if any, involved in
taking precautionary measures…
– On the facts of the present case it may fairly be said that
–
the degree of injury likely to result would be grave;
–
the degree of risk of an accident was real and not fanciful or
inconsiderable;
– there was no degree of risk to any person in taking precautionary
measures and the degree of risk of defacing the wall was not great and
could be met completely by the exercise of ordinary care
Employer –employee relations
Employers Liability and Employers Duty
Identifying whether a person is an employee is relevant to
•entitlement to workers compensation (Self-Learning Module 2)
•employer’s vicarious liability for employee’s tort (above)
•employer’s personal liability to employee under employer/ee common
law duty of care (Week 8)
Note: vicarious liability of employers
•an employer may be vicariously liable for a tort committed by an
employee in course of employment, whether plaintiff is another
employee, a contractor or anyone else
Note: personal liability of employers
•established employer/ee duty (Week 8) is owed to employees
•non-delegable duty (Kondis, above) also owed to employees
•employer may otherwise owe duty of care to non-employees, eg under
occupier/entrant or manufacturer/consumer duty of care
Torts Week 11
18
McLean v Tedman (1984) 155 CLR
306
• In such a situation it is not an acceptable answer
to assert that an employer has no control over an
employee's negligence or inadvertence. The
standard of care expected of the reasonable man
requires him to take account of the possibility of
inadvertent and negligent conduct on the part of
others. [8]
• The employer's obligation is not merely to
provide a safe system of work; it is an obligation
to establish, maintain and enforce such a system.
Accident prevention is unquestionably one of the
modern responsibilities of an employer
Koehler v Cerebos (Australia) Ltd
• P complained repeatedly about her work conditions. She
suggested either extra time or giving the stores to other
employees. Employer did not listen. She went to the
doctor because she was not able to lift products any more
and the doctor diagnosed her with a psychological
disorder and was referred to a psychiatrist. She
sustained a recognised psychiatric illness as a result of
her work.
• Held:McHugh, Gummow, Hayne and Heydon JJ: In this
case, it was not found to be reasonably foreseeable that
the employer should have foreseen a psychiatric illness.
‘A Frolic of his/her Own’
• In general the employer is not liable where the employee
commits a torts while on a ‘frolic of his or her own’
• Harvey v O’Dell
– Detour to get more tools & lunch was in scope of
employment
– Not a frolic of their own bec. Employees were paid
subsistence money & not required to take lunch with them
• Petrou v Hatzigeorgiou: Horseplay / practical jokes by
employees may be within the course of employment
– out vicarious liab. of partner for tort of another partner
– Certain amount of horseplay conducive to maintaining good
staff relations
– Fact that act went outside permitted level of horseplay did
not take it outside the course of the business
22
What is meant by “joint and
several liability”?
• Where there are a number of tortfeasors and
each of them is individually liable to the P for
the whole of the damage suffered.
• The P may sue any one or all of them to recover
the damages may obtain judgment against one
or all of them.
• The P chooses who to sue but will normally sue
the one most able to pay- hence likely to be
public authorities, manufacturers and insurers.
Joint Tortfeasors
• Thompson v Australian Capital Television Pty
Ltd (1996) 186 CLR 574
– Channel 7 and 9 broadcast a defamatory story under
licence, that the step-father of a girl abused her and fathered
her child when she was 14. This was never proven to be
true. He sued the station.
BRENNAN CJ, DAWSON AND
TOOHEY JJ
• We have no doubt that Channel 9 and Channel 7 were
joint tortfeasors. The difference between joint tortfeasors
and several tortfeasors is that the former are responsible
for the same tort whereas the latter are responsible only
for the same damage[2]. As was said in The Koursk[3],
for there to be joint tortfeasors "there must be a
concurrence in the act or acts causing damage, not
merely a coincidence of separate acts which by their
conjoined effect cause damage". Principal and agent may
be joint tortfeasors where the agent commits a tort on
behalf of the principal, as master and servant may be
where the servant commits a tort in the course of
employment. Persons who breach a joint duty may also
be joint tortfeasors. Otherwise, to constitute joint
tortfeasors two or more persons must act in concert in
committing the tort.
The Effect of Release
• At common law, where there was a joint tort there
could be only one action and one judgment for the
whole amount of damages to which the plaintiff was
entitled. That is to say, the cause of action was one
and indivisible so that when judgment was obtained
on it, whether against one or more of the joint
tortfeasors, the cause of action merged in the
judgment and precluded further recovery against any
remaining tortfeasors
• A judgment obtained against one joint tortfeasor was
a bar to an action against the others upon the same
cause of action, even if the judgment remained
unsatisfied. It was also the basis of the rule that the
release of one joint tortfeasor released all the others
Concurrent tortfeasors
• Chapman v Hearse (1961) 106 CLR 112
the concept of “contribution
between tortfeasors and relative
contributions
Section 5 of the Law Reform (Miscellaneous
Provisions) act 1946 (NSW)
• Where damage is suffered by any person as a
result of a tort (whether a
crime or not):
– (a)
judgment recovered against any tort-feasor liable
in respect of
that damage shall not be a bar to an
action against any other
person who would, if sued,
have been liable as a joint tort-feasor
in respect of
the same damage
– (c) any tort-feasor liable in respect of that damage may
recover
contribution from any other tort-feasor who is, or
would if sued have
been, liable in respect of the
same damage, whether as a joint tort-feasor or otherwise,
THE LAW OF TORTS
TORTS LECTURE
DEFENCES IN NEGLIGENCE
The Concept of
Defence
• Broader Concept: The content of the
Statement of Defence- The response to the
P’s Statement of Claim-The basis for nonliability
• Statement of Defence may contain:
Denial
–Objection to a point of law
–Confession and avoidance:
–
Defences: Factors that may
undermine a plaintiffs claims
INTRODUCTION: FACTORS THAT
MAY UNDERMINE P’S CLAIM
• The plaintiff's:
– A diminished standard of care: pre-existing knowledge about
the defendant’s incapacity
– contributory negligence: failure to take reasonable care of his
or her own safety
– Voluntary assumption of risk: pre-existing or constructive
knowledge of the risk associated with the state of affairs that
gave rise to the negligence
– unlawful conduct
DEFENCES
Contributory Negligence
Voluntary Assumption of Risk
particular defendants with limited
liability
Diminished standard of care
Inherent risks Unlawful conduct/illegality
Dangerous recreational activities
DIMINISHED STANDARD OF
CARE
• Insurance Commissioner v Joyce:
– ‘the case may be described as involving a dispensation
from all standards of care’, so that, … there was no
breach of duty by the defendant...’
• ‘Diminished standard of care’ is technically
not a defence as such
Contributory negligence
Class Exercise
What does a defendant have to
prove to establish a defence of
Contributory Negligence at common
law?
• Evaluate the scope of CN under
the CLA
•
THE NATURE OF
CONTRIBUTORY
NEGLIGENCE: Joslyn v
Berryman
• (Per (McHugh J): At common law, a plaintiff is guilty
of contributory negligence when the plaintiff
exposes himself or herself to a risk of injury which
might reasonably have been foreseen and avoided
and suffers an injury within the class of risk to which
the plaintiff was exposed. In principle, any fact or
circumstance is relevant in determining contributory
negligence if it proves, or assists in proving, a
reasonably foreseeable risk of injury to the plaintiff
in engaging in the conduct that gave rise to the
injury suffered
• The test of contributory negligence is an objective
one
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
(Law Reform (Miscellaneous) Act 1965
(NSW) s9
• If a person (the "claimant") suffers damage as the result
partly of the claimant’s failure to take reasonable care (
"contributory negligence") and partly of the wrong of any
other person:
• a. claim in respect of the damage is not defeated by
reason of the contributory negligence of the claimant, and
• b. the damages recoverable in respect of the wrong are to
be reduced to such extent as the court thinks just and
equitable having regard to the claimant’s share in the
responsibility for the damage.
CIVIL LIABILITY ACT Division
8
 s5R:
– 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.
– (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
– (b) the matter is to be determined on the basis of what that
person knew or ought to have known at the time.

CIVIL LIABILITY ACT Division
8
• 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.
How do the Courts approach the
issue of contributory negligence?
• Courts compare the degree of departure from
the standard of the reasonable person of both
the P and the D:
Pennington v Norris
• Facts: 2 men crossed the street to get to their car on a rainy night
and were hit by a car and carried 30 feet and more down the street.
Wilson suffered severe injuries and it was found that the pedestrians
and driver were to blame. The Tasmanian court apportioned each of
the parties 50% and this went to the High Court who then
apportioned driver 80% and pedestrian 20%
The factors the court took into
account:
•
•
•
•
•
•
•
Speed…
Lots of people …
3 hotels just closed.
Misty night
Wet road.
Impaired Visibility
mistiness on the inside and outside of the
windscreen.
• Driving 30 miles an hour under these
circumstances… was obviously dangerous
Pennington v Norris cont’ed
• Dixon CJ, Webb, Fullager & Kitto JJ :
– The only guide which the statute provides is that it
requires regard to be had to "the claimant's share in
the responsibility for the damage"… What has to be
done is to arrive at a "just and equitable"
apportionment as between the plaintiff and the
defendant of the "responsibility" for the damage. It
seems clear that this must of necessity involve a
comparison of culpability. By "culpability" we do not
mean moral blameworthiness but degree of
departure from the standard of care of the reasonable
man.
Pennington v Norris cont’ed
• Here, in our opinion, the negligence of the defendant
was in a high degree more culpable, more gross, than
that of the plaintiff. The plaintiff's conduct was ex
hypothesi careless and unreasonable but, after all, it
was the sort of thing that is very commonly done: he
simply did not look when a reasonably careful man
would have looked.
Froom v Butcher
What will a Defendant need to
prove to establish the Defence?
• Froom v Butcher [1975] 3 All ER 520
– Facts: P was injured in a car when they were not wearing
a seat belt and crashed into another car. The other driver
was at fault. The question that arises is whether Mr.
Froom's damages are to be reduced because he was not
wearing a seat belt.
Per Denning MR at 523
• Negligence depends on a breach of duty, whereas
contributory negligence does not. Negligence is a man's
carelessness in breach of duty to others. Contributory
negligence is a man's carelessness in looking after his
own safety. He is guilty of contributory negligence if he
ought reasonably to have foreseen that, if he did not act
as a reasonable prudent man he might be hurt himself
McLean v Tedman (1984) 155 CLR 306
Mere inattention and inadvertence v
contributory negligence:
• McLean v Tedman (1984) 155 CLR 306
– Facts: garbage man running across the street to put
garbage in the truck (garbage truck did not drive on
either side, just drove one side and men ran to and
form the truck). P alleged that the employer had been
negligent in not providing a safer system of work.
Employer argued that the men would not have
adopted it anyway.
– Held: Mason, Wilson, Brennan and Dawson JJ. The
garbage man P was not guilty of contributory
negligence, the employer had been negligent in failing
to provide a safe system of work because:
McLean v Tedman (1984) 155 CLR 306
• Mason, Wilson, Brennan and Dawson JJ.
– “The standard of care expected of the reasonable man requires
him to take account of the possibility of inadvertent and
negligent conduct on the part of others.” At [8]
– The question is whether that failure [of the P to observe the
oncoming vehicle] should be characterized as mere inattention
or inadvertence or whether it amounts to negligence, there
being a well recognized distinction between the two. It is
accepted that in considering whether there was contributory
negligence by an employee in a case in which the employer has
failed to provide a safe system of work, the circumstances and
conditions in which he had to do his work must be taken into
account. And the issue of contributory negligence is essentially
a question of fact. [19]
Zanner v Zanner [2010] NSWCA 343
• Facts: The respondent, the mother of the first appellant,
sustained serious injuries when she was struck by a
motor vehicle owned by the second appellant and being
manoeuvred by the first appellant at the direction of the
respondent into the carport of the family home at Seven
Hills. At the time of the accident, the appellant was 11
years and 2 months old.
• Held: Tobias JA (Allsop P and Young JA agreeing)
• Section 5S applies in “very rare” cases where it can
legitimately be said that it is just and equitable to reduce
the respondent’s damages by 100%.
The Calculus of Negligence Applies to
Determine Contributory Negligence:
• Chapman v Hearse
Where Pl is in imminent danger - The ‘agony of the moment'
rule: unlikely to be contributory negligence, where defendant
has put the plaintiff in imminent personal danger: The
Bywell Castle (1879) 4 PD 219; Cortis v Baker [1968] SASR
367
 Caterson v Commissioner for Railways (1973) 128 CLR 99

Caterson v Commissioner for Railways
(1973) 128 CLR 99

Where a plaintiff has by reason of the
negligence of the defendant been so
placed that he can only escape from
inconvenience by taking a risk, the
question whether his action in taking
the risk is unreasonable is to be
answered by weighing the degree of
inconvenience to which he will be
subjected against the risk that he
takes in order to try to escape from
it… a person who wished to avoid
being carried on to a distant station
might not unreasonably jump out
from a train which was travelling very
slowly.
Causation
•The defendant must prove a causal link
between the plaintiff’s negligence and the
damage the plaintiff suffered
•At common law the same principles applied to
P as for causation in respect of the D’s
negligence:
– March v Stramare (1991)171 CLR 506.
– RTA of NSW v Turner [2008] NSWCA 48
RTA v Turner
TRTA v Turner: The Facts
• Driver of car not owner. He drove car at 85 kph, even though
sign said 65 kph at some point but here should have been
more signs.
• Wet condition and collided with oncoming vehicle.
• Driver seriosuly injured and owner of car killed in accident
• Driver sued owner through 3rd party insurance AAMI
– On the basis that rear tyres were smooth and should have been
better.
• Driver also sued RTA for not reducing speek limit sign and
erecting slippery when wet sign and in failing to maintain
adequate skid resistance on the road surface at the curve.
• The trial judge found that but for the negligence of the RTA
the accident would not have happened and held that the
negligence of the owner was not a cause of the accident and
the first respondent had not been guilty of contributory
negligence. The RTA appealed.
Voluntary assumption of risk
Class Exercise
• In pleading voluntary assumption of risk does
the defendant need to prove subjective
knowledge or is proof of objective/constructive
knowledge sufficient in the light of the Civil
Liability Act 2002 (NSW)?
Birch v Thomas [1972] 1 WLR 294
Voluntary Assumption of Risk
• 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 must have perceived the danger
– P must have fully appreciated the danger/known
– P must have voluntarily accepted the risk
• What constitutes acceptance of the risk?
VOULNTARY ASSUMPTION OF RISK
IN COMMON LAW: VOLUNTI NON FIT
INJURIA
• The risk which the P took must be precisely
identified. Is that the risk which materialised and
which injured the plaintiff?
– Rootes v Shelton (1967) 116 CLR 383
– Kent v Scattini [1961] WAR 74
– Monie v The Commonwealth [2007] NSWCA 230
»Mere knowledge of the risk is not the same
as consenting to it
»The ‘whole risk’ must be incurred by P.
Torts Week 7 Defences
66
Scanlon v American Cigarette Company
overseas Pty Ltd (No 3) [1987] VR 289
Voluntary Assumption 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
VAR Not available in
some cases
The defence of Volenti is NOT available
in NSW in some cases:
1. In Motor Accident cases: Motor
Accidents Compensation Act 1999
(NSW) s 140.
2. In Workplace Accident cases:
Workers Compensation Act 1987
(NSW), s Torts
151O.
Week 7 Defences
69
‘RISKS’ UNDER THE CIVIL
LIABILITY ACT
RISKS
OBVIOUS
INHERENT
VAR IN THE CIVIL LIABILITY ACT
(Division 4, S5F)
• (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
Qualifications S5G(1)
• Under s5G(1) ’[i]n 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’
CLA:Section 5H(1)
• under 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 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
risks associated with Recreational
activities
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:
• S5L provides that 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’
• 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’.
INHERENT RISK
• S5I(1) A person is not liable in negligence for harm
suffered by another person as a result of the
materialisation of an inherent risk.
PRESUMPTIONS OF AWARENESS OF
OBVIOUS RISK (s5G)
• (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.
NO PROACTIVE DUTY TO
WARN OF RISKS
• Under the legislation D has no duty to warn P of an obvious risks
except where:
– (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.
RISKS IN RECREATIONAL
ACTIVITIES (CLA DIVISION
5)
• S5K: "dangerous recreational activity" means a
recreational activity that involves a significant risk of
physical harm
• "recreational activity" includes:
– (a) any sport (whether or not the sport is an organised
activity), and
– (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, park or other public open space) where people
ordinarily engage in sport or in any pursuit or activity for
enjoyment, relaxation or leisure.
• S5L: No liability for harm suffered from obvious risks
of dangerous recreational activities
Obvious Risk
• The question of obvious risk involves
the determination of whether the
plaintiff's conduct involved a risk of
harm which would have been obvious
to a reasonable person in his position.
The test is an objective one and thus
must take account of the objective
circumstances of the person whose
conduct is being assessed.
(Tobias J, Jaber v Rockdale City Council [2008]
NSWCA 98;)
• "' obvious ' means that both the condition and
the risk are apparent to and would be
recognised by a reasonable man, in the
position of the [plaintiff] exercising ordinary
perception, intelligence and judgment."
(Mason P in Wyong Shire Council v Vairy
[2004] NSWCA 247 at [161])
Tobias J in Wyong Shire Council
v Vairy
• "[162] In this definition 'condition' refers to the factual
scenario facing the plaintiff. Thus in a diving case the
condition might typically be the fact that the plaintiff is
faced with water of unknown depth. Under such a
condition the risk would be that diving into the water
(while the depth remains unknown) might result in
(serious) injury. This risk would be considered obvious
if, in the context of the case, it was perceptible to a
reasonable person in the position of the plaintiff that if
you do not know the depth of a body of water into
which you are about to dive, then to dive into such
water under such conditions inevitably brings with it
the risk of injury."
Tobias J in Fallas v Mourlas
[2006] NSWCA 32;
• For the purposes of the definition of
"dangerous recreational activity" in s
5K, the scope of the relevant activity
must be determined by reference to the
particular activities engaged in by the
respondent at the relevant time being
the period immediately prior to the
respondent suffering the relevant harm
as a consequence of the appellant's
negligence. (
• as a general guide, the risk could not be "
significant " unless there was a real chance of
it materialising.
Risks in Recreational Activities
• Fallas v Mourlas [2006] NSWCA 32
– whether hunting kangaroos by spotlight was a "dangerous recreational activity"
within s 5K of the NSW CLA,
• Falvo v Australian Oztag Sports Association & Anor [2006] Aust Tort
Reports 81-831 (2 March 2006)
– Mr Falvo seriously injured his right knee while playing a game of Oztag, a form
of touch rugby. The game was played on a reserve occupied and controlled by
the local council. The reserve was grassed but in some areas the grass had
disappeared through wear and tear and the Council had levelled these areas
with sand. Mr Falvo ran towards the opposing team's try line he encountered a
bare patch, his knee gave way when his foot went into the sand and he
collapsed in pain on the ground.
• Bujnowicz v Trustees of the Roman Catholic Church of the
Archdiocese of Sydney40 (2005),
» plaintiff, in the course of a school touch rugby game, ran into a pothole on
the school's rugby field sustaining severe injuries to his leg.
» Held: The hole there was not obvious and could not be categorized as a
depression in the ground or a mere alteration in levels but was a trap
Negligence and the ordinary
human experience
• "If negligence law is to serve any useful
social purpose, it must ordinarily reflect the
foresight, reactions and conduct of ordinary
members of the community ... To hold
defendants to standards of conduct that do
not reflect the common experience of the
relevant community can only bring the law of
negligence, and with it the administration of
justice, into disrepute. ..."
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”
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; (3)
a criminal wrong, or civil wrong, or immoral
behaviour.
Illegality
• 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