DIPLOMA IN LAW
LEGAL PROFESSION
ADMISSION BOARD
LAW EXTENSION COMMITTEE
LAW EXTENSION COMMITTEE SUBJECT GUIDE
03 TORTS
WINTER SESSION 2016
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.
Course Description and Objectives
Lecturers
Assessment
September 2016 Examination
Lecture Program
Weekend Schools 1 and 2
Texts and Materials
Compulsory Assignment
Assignment Question
Lecture Outlines
Prescribed Topics and Course Outline
Sample Worked Answers
Case Note Example
1
1
1-2
2
3-4
5
5-6
7
7
8-13
14-24
25-37
38-40
1
LAW EXTENSION COMMITTEE
WINTER 2016
03 TORTS
COURSE DESCRIPTION AND OBJECTIVES
A tort is a civil wrong that results in physical or psychiatric injury, property damage or financial loss to
another or by which another’s legal rights are infringed. A plaintiff who has suffered injury or loss due
to a tort committed by the defendant will generally be seeking compensation by way of damages.
Liability depends on a range of factors including the nature of the defendant’s conduct, his or her state
of mind at the time, and the consequences of the conduct. The course includes the study of a number
of important torts such as trespass, which protects a person from unwanted physical contact or
threats; negligence; and related issues such as defences, assessment of damages and concurrent
liability. The course examines the traditional common law doctrines that underpin the core principles
in torts and the extent to which statutory developments have influenced the scope of liability.
The course in torts also serves an important introductory role to the study of law. It is a subject which
requires an understanding of the development of the common law and the relationship between
statute and common law. It also introduces students to methods of applying legal rules and
arguments to factual situations and requires the development of skills in the interpretation of case law,
legal and theoretical analysis, and clear and accurate legal writing. The course therefore provides an
important measure of the student’s capacity to undertake legal studies and practice.
LECTURERS
Professor Sam Blay, LLB (Hons) (Ghana), LLM (ANU), PhD (Tas)
Professor Blay is the Deputy Principal (Academic) Top Education Institute and Professor of Law at the
Sydney City School of Law. He is a former Dean of Law University of Tasmania, and former Chair of
Law UTS. He has taught for the Law Extension Committee as a member of the Torts Team for over a
decade. His main teaching and research interests are the Law of Torts, International Law,
International Trade Law and International Development Law. He is an experienced senior academic
who has served as a United Nations consultant and senior advisor on the Rule of Law in Vietnam,
Laos, Sudan and Somalia.
Mr Greg Young, BEc, LLB (Syd)
Mr Young is a barrister practising in Sydney in a variety of torts and contracts matters. He is an
accredited specialist in personal injury law and examiner for the Law Society and has practised in New
South Wales since 1990. Greg has a special interest in the impact of administrative law on tort law
reform. He has taught for the Law Extension Committee since 2003.
Mr Clary Castrission, BA (Com), LLB (Hons), Solicitor in the Supreme Court of NSW
Mr Castrission graduated with Honours in Law at the University of Technology, Sydney in 2007. He
also holds a Graduate Certificate in Legal Practice. Clary is the Founding Director and CEO of the 40K
Foundation Australia, an NGO which educates children in the developing world. Clary has lectured for
the LEC since 2010, as well as for the University of Technology, Sydney.
ASSESSMENT
To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and
learning program, the first step of which is to ensure that you have registered online with the LEC in
2
each subject for which you have enrolled with the Board. This gives you access to the full range of
learning resources offered by the LEC.
To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow
the instructions. Detailed guides to the Webcampus are contained in the material distributed by the
LEC, in the Course Information Handbook, and on the Webcampus.
Eligibility to Sit for Examinations
In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by
the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.
Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.
Assignments as part of the Board’s Examinations
Assignment results contribute 20% to the final mark in each subject.
The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC
engages the LPAB’s Examiners to assess or supervise the assessment of assignments.
Submission
Assignments must be received by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be
provided. Assignments that are more than ten days late will not be accepted. Late assignments attract
a penalty of one mark out of 20, or 5% of the total marks available, per day.
Assessment
Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined
in the Guide to the Presentation and Submission of Assignments. Prior to the examination,
assignments will be returned to students and results posted on students’ individual results pages of
the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their
eligibility to sit for the examination.
Review
Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in
that subject will be reviewed prior to a final mark in the subject being awarded. Except in the case of
demonstrable error, assignment marks will not otherwise be reviewed prior to the examination.
SEPTEMBER 2016 EXAMINATION
Candidates will be expected to have studied the prescribed topics:
Definition, aims and scope of the law of torts; Intentional torts; Negligence; Assessment of damages
for personal injury and death; Concurrent liability; Fatal accidents; Breach of statutory duty; and
Private and Public Nuisance.
Candidates will be expected to have made a study of the prescribed materials in relation to those
topics, and to have analysed cases and statutory provisions referred to in the Law Extension
Committee's course outline.
All queries regarding the Torts examination should be directed to the Legal Profession Admission
Board.
3
LECTURE PROGRAM
Lectures in Torts will be held on Fridays from 6.00pm until 9.00pm. In the first half of semester,
lectures will be held in Carslaw Lecture Theatre 157 (CLT 157). Lecture venues for the second half of
semester have yet to be confirmed. For details as to the location of lecture venues, refer to page 52 of
the Course Information Handbook for a map of the University of Sydney main campus.
This program is a general guide and may be varied according to need. Readings are suggested to
introduce you to the material to be covered in the lecture, to enhance your understanding of the topic,
and to encourage further reading. You should not rely on them alone.
WEEK
VENUE
TOPIC
1. Introduction
(1) The meaning of a “tort”
(2) The aims and objectives of torts law
2. Intentional torts
(1) Trespass and case
(a) Historical distinctions
(b) Fault in Trespass
(2) Trespass to the Person
(a) Battery
(b) Assault
1
13 May
CLT 157
2
20 May
CLT 157
(c) False imprisonment
(d) Damages
(3) Trespass to land
(a) Scope of the tort
(b) Title to sue
(c) Legislation
(d) Remedies
(4) Interference with Goods
(a) Trespass to goods
(b) Conversion
3
27 May
CLT 157
(c) Detinue
(d) Damages
(5) Action on the case for wilful injury
(6) Defences to intentional torts
(aa) Mistake
(a) Consent
(b) Contributory negligence
(c) Necessity
(d) Illegality
(e) Defence of person/property
(f) Intellectual disability
4
3 Jun
CLT 157
5
10 Jun
CLT 157
(2) Breach of duty
(a) Standard of care
(b) Proof of negligence
6
17 Jun
CLT 157
(3) Damage
(a) Causation
(b) Remoteness
(c) New act intervening
3. Negligence
General overview of the tort
(1) Duty of care
4
WEEK
VENUE
TOPIC
Study Break: Saturday 18 June – Sunday 3 July 2016
7
8 Jul
TBA
4. Particular duty areas in negligence
(a) Product liability
(b) Defective structures
(c) Nervous shock
8
15 Jul
TBA
4. Particular duty areas in negligence (cont’d)
(d) Pure economic loss
(e) Negligent misstatement
(f) Liability of statutory authorities
9
22 Jul
TBA
5.
Remedies for negligent conduct: damages
Personal injury
(a) Common law
(b) Statute
Death
Claimants
10
29 Jul
TBA
6. Defences to Negligence
(a) Contributory negligence
(aa) Meaning
(ab) Apportionment
(b) Voluntary assumption of risk
(c) Illegality
11
5 Aug
TBA
7.
12
12 Aug
TBA
Revision (if needed)
Nuisance
(1) Private nuisance
(a) Interests protected
(b) Title to sue
(c) Unreasonable and substantial interference
(d) Sensitive plaintiff
(e) Basis of liability
(f) Defences
(2) Public nuisance
(a) General principles
(b) Highway authorities
5
WEEKEND SCHOOLS 1 AND 2
There are two weekend schools primarily for external students. Lecture students may attend but are
requested to note that weekend classes aim to cover the same material provided in weekly lectures
and are for the assistance of external students. Please note that it may not be possible to cover the
entire course at the weekend schools. Attendance at the weekend schools is voluntary, but external
students are encouraged to attend.
It is envisaged that the following topics will be covered at the weekend schools:
Weekend School 1
Saturday 28 May 2016: 4.00pm – 8.00pm in Eastern Avenue Lecture Theatre (EALT)
Topic One
Definition, aims and scope of law of torts
Topic Two
Intentional torts
Sunday 29 May 2016: 8.00am – noon in Eastern Avenue Lecture Theatre (EALT)
Topic Three
Intentional torts (cont)
Weekend School 2
Saturday 23 July 2016: 4.00pm – 8.00pm in Eastern Avenue Lecture Theatre (EALT)
Topic Three
The tort of negligence
(1) Duty of care
(2) Breach of duty
(3) Damage
Topic Four
Particular areas of negligence
(1) Pure economic loss
(2) Loss of services
Sunday 24 July 2016: 8.00am – noon in Eastern Avenue Lecture Theatre (EALT)
Topic Six
Nuisance
Topic Seven
Defences
Topic Eight
Remedies for negligent conduct: damages personal injury/death
Revision
TEXTS AND MATERIALS
Course Materials

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)
Prescribed Materials



Balkin and Davis, Law of Torts, 5th ed. LexisNexis, 2013.
Villa, Annotated Civil Liability Act 2002 (NSW), 2nd ed. Thomas Reuters, 2013
Luntz & Hambly et al, Torts - Cases and Commentary, 7th ed. LexisNexis, 2013
6
Reference Materials





Blay, Torts in a Nutshell, 5th ed. Thomson Reuters, 2010
Davies and Malkin, Focus: Torts, 7th ed. LexisNexis 2014
Stewart and Stuhmcke, Principles of Tort Law, Federation Press 3rd Ed 2012
Sappideen, Vines, Grant and Watson, Torts: Commentary and Materials, 10th ed. Thomson
Reuters, 2011
Sappideen and Vines, Fleming’s Law of Torts, 10th ed. Thomson Reuters, 2011
Other Materials: Reports, Journals and General References
You will also find the following materials and sources useful in the course

Report of the Panel for the Review of the Law of Negligence (the Ipp Report) available on the
Commonwealth treasury website at http://revofneg.treasury.gov.au/content/reports.asp

The CCH Torts Law Library includes the Australian Torts Reporter and Australian Professional
Liability - available via CCH Online.

There are two very useful dedicated Australian tort law journals: the Torts Law Journal and the
Tort Law Review both available via UTS library.

Free online legal databases: AUSTLII and BAILII
The Sydney University Library is also a rich source of several online data bases. The following will be
of help in this course:










AGIS Plus Text via Informit allows you access to the local and overseas journals received by the
Attorney-General’s Library, Canberra.
Australian Public Affairs Full Text via Informit allows you access to both legal and non legal
Australian journals.
CaseBase via LexisNexisAu indexes many Australian and some overseas law journals. If the
hypertext link works, you have access to the full text of many journal articles.
HeinOnline in particular The Law Journal Library contains the fulltext of over 500 journals. While
the majority of these originate in the United States, many of the major university law reviews from
Australia and other common law jurisdictions are also included.
Index to Legal Periodicals & Books is a US index focusing primarily on US materials plus other
common law countries such as the UK, Canada, Australia, New Zealand etc.
Lexis contains a comprehensive range of United States primary and secondary legal materials
and a range of international material from both common and civil law jurisdictions in fulltext.
Includes the full text of many journals from various common law countries such as the US, the
UK, Canada, Australia, New Zealand etc. This site does NOT provide access to fulltext
newspaper services.
Specialised Australian torts journals include:
Torts in focus (CCH)
Torts Law Journal (Australia and New Zealand) in print or online via Lawbook Online
Torts News in print or online via LexisNexis Au
Tort Law Review (Lawbook Co)
LEC Webcampus
Once you have registered online with the LEC, you will have full access to all the facilities on the
Webcampus including detailed lecture outlines, including the readings for each week, which will be
provided in the Course Materials section on the LEC Webcampus. The PowerPoint slides will be
uploaded before each weekly lecture. Links to relevant cases and legislation can also be found on the
LEC Webcampus.
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COMPULSORY ASSIGNMENT
In Torts, there is only ONE ASSIGNMENT. This assignment is compulsory and must be
submitted by all students. Students must submit the assignment by the due date. A pass mark
is 50%. Refer to the Guide to the Presentation and Submission of Assignments for the
assignment grading and assessment criteria. Students who fail to satisfy the compulsory
requirements will be notified through the Results screen on the Webcampus before the
examination period of their ineligibility to sit the examination in this subject. The maximum
word limit for the assignment is 1500 words (inclusive of all footnotes but not bibliography).
The rules regarding the presentation of assignments and instructions on how to submit an assignment
are set out in the LEC Guide to the Presentation and Submission of Assignments which can be
accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting
an assignment.
The completed assignment should be lodged through the LEC Webcampus, arriving by 11:59pm on
the following date:
Compulsory Assignment
Thursday 7 July 2016
(Week 7)
ASSIGNMENT QUESTION
To obtain a copy of the Torts assignment for the Winter Session 2016, please follow the
instructions below:
1.
Register online with the LEC (see page 26 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have access to all the facilities on the LEC
Webcampus.
2.
Then go into the Webcampus, select the Course Materials section and click on the link to
the assignment questions for this subject.
8
LECTURE OUTLINES
** Topics referred to below refer to the Lecture Program on pages 3 to 4.
Lecture 1 : Introduction [Balkin and Davis (B&D) Ch 1-3]
TOPICS
1. Definition, aims and scope of the law of torts
2. Intentional torts: Intentional torts to the person
Trespass:
Battery
Assault
False imprisonment
ISSUES
1. What is a tort?
2. What is the difference between a tort and a crime?
3. What is the aim of the law of torts?
4. What systems are in place for the achievement of those aims?
5. How may torts be classified?
6. What is the difference between trespass and an action on the case?
7. What is battery and what is assault?
8. What is false imprisonment?
STRUCTURE
Topics 1, 2(1) to 2(2)(b)
OBJECTIVES
At the end of this lecture students should be able to:
1. trace the historical development of trespass from a crime to a tort;
2. list the three elements that are common to all trespasses;
3. discriminate between highway and non-highway trespasses for the purposes of
allocation of onus of proof to a plaintiff or a defendant;
4. explain the failure of the torts of trespass to provide a remedy for indirect acts or for
omissions, even if that conduct causes the plaintiff harm;
5. state the one element common to all actions on the case;
6. define assault, battery and false imprisonment;
7. list the elements of battery, assault and false imprisonment;
8. describe the difference between battery, assault and false imprisonment;
9. apply the elements of each of the torts to a given fact situation.
Lecture 2: Intentional torts [B&D Ch 4-5]
TOPIC
Intentional torts: intentional torts to property
Trespass to land
Trespass to chattels/goods
Conversion
Detinue
ISSUES
1. What is trespass to land?
2. Who has the right of action in trespass to land?
3. What are the remedies for a trespass to land?
4. What torts protect goods?
5. Who has the right of action in trespass to goods, conversion and detinue?
STRUCTURE
Topics 2(2)(c) to 2(4)(b)
9
OBJECTIVES
At the end of this lecture students should be able to:
1. define “Land” at common law;
2. describe some fact situations in which the courts have found that trespass to land exists;
3. state the pre-requisites of an entitlement to sue in trespass to land;
4. list the available remedies for trespass to land;
5. define trespass to goods, conversion and detinue;
6. compare and contrast the torts with reference to their elements, entitlement to sue, type
of interference that can comprise the tort, when the cause of action accrues, available
remedies and the nature of damages that are awarded.
Lecture 3: Intentional Torts Continued [B&D 3.21-3.23]
TOPIC
Action on the case for wilful injury
ISSUES
1. What is the liability of a party who intentionally causes an indirect injury to another?
2. What constitutes an intentional act for the purposes of this tort?
3. What are the main elements of this tort?
4. What features distinguish this tort from other intentional torts?
STRUCTURE
Topics 2(4)(c) to 2(6)
OBJECTIVES
At the end of this lecture students should be able to:
1.
2.
3.
4.
describe the elements of an action on the case for wilful injury;
compare and contrast this tort with battery and other intentional torts to the person;
describe fact situations that may give rise to this tort.
assess the scope of the tort.
Lecture 4: Defences to International Torts [B&D CH 6]
TOPIC
Defences to intentional torts to the person and property
ISSUES
5. What are the main defences available in international torts to the person or property?
6. What is the scope of each identified defence?
7. What are the distinctive features of each defence?
8. What is the impact of the CLA on the scope of the defences available?
STRUCTURE
Topics 3(6)(aa-f)
OBJECTIVES
At the end of this lecture students should be able to:
5.
6.
7.
8.
9.
explain the nature of defences to intentional torts;
explain the scope of each defence;
describe fact situations that may give rise to the defence;
explain the essential features of each defence;
explain the impact of the CLA on the scope of the defences to intentional torts.
10
Lecture 5: Introduction to Negligence and Duty of Care [B&D Ch 7]
TOPIC
Negligence, duty of care
ISSUES
1. What is Negligence as opposed to tort of negligence?
2. What are the elements of the tort of negligence?
3. What types of loss are recoverable in negligence?
4. When, in law, does one owe another a duty to be careful?
5. In what circumstances have the courts found this duty of care to exist?
6. To what extent does the Civil Liability Act restrict or enhance the scope of Negligence?
STRUCTURE
Topic 3(1)
OBJECTIVES
At the end of this lecture students should be able to:
1. list and explain the elements of the tort of negligence;
2. distinguish matters of law and matters of fact within these elements;
3. describe how the courts have dealt with matters of law to limit the floodgates opening to
plaintiffs in the tort of negligence;
4. explain the development of the requirements for the court to find that a duty of care
exists;
5. write a case comment on Donohue v Stevenson [1932] AC 562;
6. explain the dictum of Lord Aitken in Donohue v Stevenson;
7. explain the current scope of negligence within the Civil Liability Act.
Lecture 5: Breach of duty [B&D Ch 8]
TOPICS
Breach of Duty
Standard of Care
Proof of Negligence
ISSUES
1. What is the content of the standard of care?
2. How do the courts assess breach of duty?
3. To what extent does the Civil Liability Act limit the scope of the standard of care?
STRUCTURE
Topic 3(2)
OBJECTIVES
At the end of this lecture students should be able to:
1. define “standard of care”;
2. explain that the standard of care can also be seen as the minimum content of the duty to
take care;
3. state that the standard of care is measured objectively;
4. define a breach of duty as a failure to fulfil a duty or as a failure to do the minimum
necessary to avoid a breach of duty or as a failure to meet the standard of care required;
5. state the objective and subjective elements in the steps taken to ascertain whether a
breach of duty of care has occurred;
6. explain the scope of the duty of care within the context of Civil Liability Act.
11
Lecture 6: Causation & damage [B&D Ch 8]
TOPICS
Damage
ISSUES
1. Must there be a connection between the breach of duty and the harm suffered?
2. Are there any limitations on the kind or extent of harm that the courts will regard as
compensable by damages?
3. Can the link between breach of duty and harm suffered by a plaintiff be broken?
4. What is the role of causation in establishing damage?
5. The distinctions between factual and legal causation.
6. A critique of the ‘but for’ test: Is the test still relevant?
STRUCTURE
Topic 3(3)
OBJECTIVES
At the end of this lecture students should be able to:
1. explain the fundamental principles underpinning causation and remoteness of damage in
negligence;
2. demonstrate how and why a defendant who owes a plaintiff a duty of care and breaches it
may still escape liability in the tort of negligence;
3. explain the significance of the causative link between breach of duty and the damage
suffered by the plaintiff;
4. explain the traditional ‘but for’ test and note problems associated with it in resolving
issues of causation;
5. understand and explain issues of multiple causation.
Lecture 7: Particular duty areas in negligence [B&D 7.16-7.55]
TOPICS
Medical practitioners
Products liability
Rescuers
Occupiers liability
The unborn child
Defective structures
Nervous shock
ISSUES
1. What special consideration, if any, applies to special duty situations?
2. In what circumstances have the courts determined that such special duty arises?
3. Can an unborn child be owed a duty of care?
4. What distinctions, if any, exist between ‘wrongful life’ and ‘wrongful birth’?
5. What principles underpin the position of rescuers?
6. The implications of the Civil Liability Act.
STRUCTURE
Topics 4(a-c)
OBJECTIVES
At the end of this lecture students should be able to:
1. explain the principles that distinguish the particular duty areas in negligence;
2. explain the characteristics of and the legal principles underlying the recognition of
nervous shock as ‘damage’ in tort law;
3. explain the implications of the Civil Liability Act on the relationship between medical
practitioners and patients;
4. explain the principles governing pre-natal injuries in torts.
12
Lecture 8: Particular duty areas in negligence (cont’d) [B&D Ch 13]
TOPICS
Pure economic loss
ISSUES
1. What is pure economic loss?
2. In what circumstances have the courts determined that it arises?
3. What are the pre-requisites for the existence of a duty to avoid pure economic loss?
STRUCTURE
Topics 4(d-f)
OBJECTIVES
At the end of this lecture students should be able to:
5. explain the concept of pure economic loss;
6. distinguish pure economic loss from other types of damage in torts;
7. assess circumstances in which the tort arises.
Lecture 9: Nuisance
TOPICS
Private/Public Nuisance
ISSUES
1. The essential differences between private nuisance and public nuisance?
2. Title to sue in private nuisance.
3. Who bears the cost of abatement in private nuisance?
STRUCTURE
Topics 5 to 6
OBJECTIVES
At the end of this lecture students should be able to:
1. state the elements of private nuisance;
2. describe some fact situations in which the courts have found that private nuisance exists;
3. explain why the facts that give rise to a cause of action in private nuisance will usually
exclude an action in trespass to land;
4. cite the entitlement to sue in private nuisance;
5. describe and apply any defences to private nuisance;
6. describe the interests covered by public nuisance;
7. describe the circumstances in which an individual can bring an action in public nuisance.
Lecture 10: Defences to negligence [B&D Ch 10]
TOPICS
Contributory negligence
Voluntary assumption of risk /volenti non fit injuria
Illegality
ISSUES
1. The scope of contributory negligence.
2. The principles of apportionment.
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3.
The relationship between voluntary assumption of risk, diminished standard of care and
contributory negligence.
STRUCTURE
Topic 7
OBJECTIVES
At the end of this lecture students should be able to:
1. explain the basis of contributory negligence and the principles of apportionment;
2. outline the differences and the relationship between voluntary assumption of risk,
diminished standard of care and contributory negligence;
3. outline the central factors taken into consideration by the courts in dealing with these
defences;
4. explain in detail when and why a particular defence may be most appropriate.
Lecture 11: Remedies for negligence: damages [B&D Ch 11]
TOPICS
Damages for personal injury and death.
ISSUES
1. What are the main principles that determine the award of damages in a particular claim?
2. To what extent have these principles been affected by statute and in particular the Civil
Liability Act.
3. Is death treated in the same way as injury for the purposes of the estimation of an award
of damages?
STRUCTURE
Topic 8
OBJECTIVES
At the end of this lecture students should be able to:
1. describe the common law principles governing the award of damages in an appropriate
case;
2. state the application of and effect of the Motor Accidents Compensation Act 1999 on 1.
above;
3
explain and describe the impact of the Civil Liability Act on the award of damages for
personal injury.
14
PRESCRIBED TOPICS AND COURSE OUTLINE
1.
DEFINITION, AIMS AND SCOPE OF THE LAW OF TORTS
2.
INTENTIONAL TORTS
(1)
Trespass and the action on the case [B&D2.3-2.4]
(a)
The historical distinction
Hutchins v Maughan [1947] VLR 131
Williams v Milotin (1957) 97 CLR 465
(b)
Fault in trespass
Venning v Chin (1974) 10 SASR 299
Platt v Nutt (1988) 12 NSWLR 231
(2)
Trespass to the person
(a)
Battery [B&D 3.1-3.13]
Rixon v Start City Pty Ltd [2001] NSWCA 265
Collins v Wilcock [1984] 1 WLR 1172
Platt v Nutt (1988) 12 NSWLR 231
In re F [1990] 2 AC 1
Rozsa v Samuels [1969] SASR 205
(b)
Assault [B&D 3.15-3.20]
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
(c)
False imprisonment [B&D 3.25-3.36]
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
Commonwealth v Fernando (2012) 200 FCR 1; 287 ALR 267
Goldie v Commonwealth [2004] FCA 156
(3)
Trespass to land [B&D 5.1-5.23]
(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
Lincoln Hunt Australia v Willesee (1986) 4 NSW LR 457
L J P Investments v Howard Chia Investments (1989) Aust Torts Rep 80-269
15
(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
(4)
Interference with goods [B&D 4.1-4.66]
(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
(5)
Action on the case for wilful injury [B&D 3.21-3.23]
Bird v Holbrook (1828) 130 ER 911
* Wilkinson v Downton [1897] 2 QB 57
Bunyan v Jordan (1936) 57 CLR 1
Carrier v Bonham [2001] QCA 234
(6)
Defences to intentional torts including [B&D 6.1-6.59]
(a)
Mistake
(b)
Inevitable accident
(c)
Consent
Sibley v Milutinovic Aust. Torts Reps 81-013
Secretary, Dept. of Health and Community Services v JWB (Marion’s Case) (1992)
175 CLR 218
Giumelli v Johnston (1991) Aust Torts Rep 81-085
Minors (Property and Contracts) Act 1970 (NSW), ss 14, 49
Children (Care and Protection) Act 1987 (NSW), ss 20A, 20B
(d)
Medical procedures
16
(e)
Necessity
* London Borough of Southwark Council v Williams [1971] 1 Ch 734
Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147
State of Queensland v Nolan 2002 1Qd R 454
Murray v McMurchy [1949] 2 DLR 442
(f)
Illegality/unlawful acts
Gollan v Nugent (1988) 166 CLR 18
CLA 2002 Part 7
(g)
Defence of the person, defence of property
Fontin v Katapodis
CLA 2002 Part 7
(h)
Intellectual disability
3.
THE TORT OF NEGLIGENCE
(1)
Duty of care [B&D 7.1-7.15]
Development of concept
Heaven v Pender (1883)
Donoghue v Stevenson [1932] AC 562
Grant v Australian Knitting Mills [1936] AC 85
Jaensch v Coffey (1984) 155 CLR 549
Section 5B The Civil Liability Act 2002
(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.
Reasonable foreseeability
Nova Mink v Trans Canada Airlines (1951) 2 DLR 241
Palsgraf v Long Island Railway Co. (1928) 162 NE 99
The scope of reasonable foreseeability
Chapman v Hearse (1961) 106 CLR 112
United Novelty Co. v Daniels 42 So. 2nd 395 Miss 1949
Wyong Shire Council v Shirt (1980) 146 CLR 40
Proximity: recent trends in the explanation of the scope
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Bryan v Maloney (1995) 128 ALR 163
Nagle v Rottnest Island Authority (1993) 177 CLR 423
Northern Sandblasting v Harris (1997) 146 ALR 572
Hill v Van Erp (1997) 71 ALJR 487
Pyrenees Shire Council v Day (1998) ALJR 1
Perre v Apand (1999) 73 ALJR 1190
Sullivan v Moody (2001) 207 CLR 562
17
Caparo Industries Plc v Dickman [1990] 2 AC 605
(a)
To whom is the duty owed?
(aa) Consumers
* Donoghue v Stevenson [1932] AC 56
(ab) Users and purchasers of premises
* Hackshaw v Shaw (1984) 155 CLR 614
Strong Woolworths [2012 HCA 5]
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
Bryan v Maloney (1995) 128 ALR 163
(ac) Rescuers
* Chapman v Hearse (1961) 106 CLR 112
(ad) School children
Geyer v Downs (1977) 138 CLR 91
(ae) Pre-natal injuries and wrongful life
McKay v Essex Area Health Authority [1982] QB 1166
Watt v Rama [1972] VR 353
X v Pal (1991) 23 NSWLR 26
Lynch v Lynch (1991) 25 NSWR 491
Harriton v Stephens [2006] HCA 15 (9 May 2006)
(af) Unforeseeable plaintiffs
Bourhill v Young [1943] AC 92
Levi v Colgate-Palmolive Ltd (1941) SR (NSW) 48
Haley v L.E.B. [1965] AC 778
(ag) Qualifications to the duty of care
-Novus Actus Interveniens:
Chapman v Hearse
(1.2)
Special duty categories under the CLA
(a) Public Authorities
City of Liverpool v Turano & Anor [2008] NSWCA 270
Porter v. Lachlan Shire Council [2006] NSWCA 126
North Sydney Council v Roman [2007] NSWCA 27
(c) Mental Harm
Tame v NSW (2002) 211 CLR 317
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Wicks v State Rail Authority of New South Wales; Sheehan v State Rail
Authority of New South Wales [2010] HCA 22 (16 June 2010)
(2.1) Breach of duty [B&D 8.1-8.35]
(2.2) The calculation of the negligence "calculus"
18
Section 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.
Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 at 221
Niewman v John Ellison Hire Pty. Ltd. (1987) 48 SASR 492 at 495
Webb v State Government of South Australia (1982) 43 ALR 462
(2.2.1) The likelihood of the injury
Bolton v Stone [1951] AC 85
RTA v Dederer (2007) 238 ALR 761
(2.2.2) The seriousness of the risk and the gravity of the injury
Paris v Stepney BC [1950] 1 KB 320; [1951] 1 All ER 42
Bryden v Chief General Manager of the Health Department (1987) Aust.
Torts Rep. 80-075
Haileybury Collage v Emmanuelli [1983] 1 VR 323
Adelaide Chemical & Fertilizer Co. v Carlyle (1940) 64 CLR 514
(2.2.3) The utility of the act of the defendant
E. v Australian Red Cross Society (1991) 31 FCR 299
South Australian Ambulance Transport Inc. v Walhdeim (1948) 77 CLR 215
Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; [1985] 1
WLR 1242
(2.2.4) The cost of avoiding the harm
Caledonian Collieries Ltd. v Speirs (1957) 97 CLR 202
Putting the Calculus together
Waverley Council v Ferreira [2005] NSWCA 418
Council of the City of Greater Taree v Wells [2010] NSWCA 147 (1 July 2010)
(2.2.5) The peculiar or particular background of the defendant
(i) Infants:
McHale v Watson (1964) 111 CLR 384
(ii) Lunatics:
Adamson v. M.V. Ins. Trust [1956] WALR 58
(iii) Professional Persons:
Phillips v Whitely [1938] 1 All ER 566
Jones v Manchester Corp. [1952] 2 QB 852
Rogers v Whitaker (1993) 67 ALJR 47
Dobler v Kenneth Halverson and Ors [2007] NSWCA 335
19
(2.2.6) The dangerous nature of the activity
Adelaide Chemical & Fertilizer Co v Carlyle (1940) 64 CLR 514
(2.2.7) The gravity of the injury to the particular plaintiff
Paris v Stepney Borough Council [1951] AC 367
(2.2.8) The current state of knowledge
Roe v M.O.H. [1954] 2 QB 66
(2.3) 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) 77 CLR 39
Cook v Cook (1986) 162 CLR 376
(3)
Proof of Negligence [B&D 8.36-8.50]
(3.1) General Civil Liability Act 5E:
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.
Cook v Lewis [1952] 1 DLR 1
Holloway v McFeeters (1956) 94 CLR 470
T.N.T. v Brooks (1979) 23 ALR 345
(3.2) Res ipsa loquitor
Scott v. London & St. Katherine Docks Co. (1965) 158-159 All ER
Cassidy v M.O.H. [1951] 2 KB 343
Mahon v Osbone [1939] 2 KB 14
Roe v M.O.H. [1954] 2 QB 66
Schellenberg v Tunnel Holdings Pty Ltd (2000) 74 ALR 743
(3.3) The effect of the doctrine
Nominal Defendant v Halsbauer (1967) 117 CLR 448
(4)
Damage
Note new HCA Case: Strong v Woolworths Ltd [2012] HCA 5 (7 March 2012)
(a)
Causation
The Civil Liability Act 2002, s 5D
(1) A determination that negligence caused particular harm comprises the following
elements:
(a) that the negligence was a necessary condition of the occurrence of the
harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to
extend to the harm so caused (scope of liability).
The “But for” Test
Fitzgerald v Penn (1954) 91 CLR 268
Barnett v Chelsea & Kensington Hospital Management Committee (1969) 1
QB 428
McGhee v National Coal Board (1973) 1 WLR 1
Chappel v Hart (1998) 1995 CLR 232
March v Stramare (1991) 171 CLR 506
Bennett v Minister of Community Welfare (1992) 176 CLR 408
20
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
(b)
Multiple sufficient causes
Performance Cars Ltd v Abraham [1962] 1QB 33
Baker v Willoughby [1970] AC 476
Faulkner v Keffalinos (1970) 45 ALJR 80
Jobling v Associated Dairies [1982] AC 794
(c)
Intervening causes
* Chapman v Hearse (1961) 106 CLR 112
Haber v Walker [1963] VR 339
Mahony v J Kruschich (Demolitions) (1985) 156 CLR 522
Pitt Son and Badgery v Proulefco (1984) 153 CLR 644
Muller v Lalic [2000] NSW CA 50
Kavanagh v Akhtar (1998) 45 NSWLR 588
McKew v Holland & Hannon & Cubitts Ltd [1969] 3 All ER 1621
(d)
Remoteness
* Overseas Tankship (UK) v Morts Dock and Engineering Co [1961] AC 388
Overseas Tankship (UK) v The Miller Steamship Co [1967] AC 617
Nader v Urban Transit Authority (1985) 2 NSWLR 553
Beavis v Apthorpe (1962) 80 WN (NSW) 852
4.
PARTICULAR DUTIES IN NEGLIGENCE [B&D 7.16-7.55]
Defective structures
(1) Builders
Bryan v Maloney (1995) Aust Torts Reps 81-320
(2) Architects
Voli v Inglewood Shir (1963) 100 CLR 74
(3) Councils and statutory authorities
Civil Liability Act 2002 Part 5
Heyman v Sutherland Shire Council (1985) 157 CLR 424
Shaddock & Assoc v Parramatta City Council [No1] (1981) 150 CLR 424
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Parramatta City Council v Lutz (1988) 12 NSWLR 293
Kyogle Shire Council v Francis (1988) 13 NSWLR 396
Alex Finalyson Pty v Armidale City Council (1994) 123 ALR 155
(4) Nervous shock
Civil Liability Act 2002, Part 3
The nature of nervous shock
Swan v Williams (1987) 9 NSWLR 172 at pp 184-5
Andrewartha v Andrewartha (1987) 44 SASR 1
Mount Isa Mines v Pusey (1970) 125 CLR 383 at p394
Jaensch v Coffey (1984) 155 CLR 549
Alcock v Chief Constable [1991] 2 WLR 814
Jones v Wright [1991] 1 All ER 353
21
Jones v Wright [1991] 3 All ER 88 (on appeal)
(5) Pure economic loss
Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529
Christopher v MV Fiji Gas (1993) Aust Torts Reps pp 81-202
New Zealand Forest Products v A-G New Zealand [1986] 1 NZLR 14
Hawkins v Clayton (1988) 164 CLR 539
Bryan v Maloney (1995) 69 ALJR 375
Executive Trustee Australia Ltd & Ors v Peat Marwick Hungerfords (1995) Aust
Torts Reports pp 81-318
SCM v Whittal [1971] 1 QB 337
Spartan Steel v Martin [1973] QB 27
Perre v Apand (1999) 198 CLR 180
Johnson Tiles v Esso Australia [2003] Aust Tort Reports 81-962
(6) Negligent misstatement
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 4652
Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556, per
Barwick CJ (Headnote and Barwick CJ’s judgment only)
Shaddock v Parramatta City Ccl (1981) 36 ALR 385
San Sebastian Pty Ltd v Minister Administering the Environmental Planning and
Assessment Act (1986) 162 CLR 340
Warwicker Assessments v Zadow (1989) 1 WAR 307
Caparo Industries Plc v Dickman [1990] 2 AC 605
Richard Ellis (WA) Pty Ltd v Mullins Investments Pty Ltd (1995) Aust Torts
Reports pp 81-319
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
(7) Product liability
(7.1) Sale of Goods Act 1923 (NSW)
(7.2) Competition and Consumer Act 2010 (Cth) (from 1 January 2011)
Australian Consumer Law Schedule 2 of Div 2 of Part XI
(7.3) Fair Trading Act (NSW)
(7.4) The common law
Donoghue v Stephenson [1932] AC 562 at p599
Grant v Australian Knitting Mills [1936] AC 85
(8)
Commercial Premises
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234
Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419
Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469
5.
(1)
DEFENCES TO NEGLIGENCE [B&D 10.1-10.31]
Contributory negligence
Apportionment legislation
Civil Liability Act 2002, ss 5R-5T
22
Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10
Pennington v Norris (1956) 96 CLR 10
Froom v Butcher (1975) 3 All ER 520
Jones v Livox Quarries (1952) 2 QB 608
Caterson v Commissioner for Railways (1973) 128 CLR 99
McLean v Tedman (1984) 155 CLR 306
Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34 (18 June
2003)
Monie v Commonwealth [2007] NSWCA 230
Gent-Diver v Neville [1953] St R Qd 1
(2)
Violenti Non Fit Injuria
Scanlon v American Cigarette Co (Overseas) Pty Ltd (No3) (1987) VR 289
Imperial Chemical Industries v Shatwell (1965) AC 656
Insurance Commissioner v Joyce (1948) 77 CLR 39
Roggenkamp v Bennett (1950) 80 CLR 292
Kent v Scattini (1961) WAR 74
Rootes v Shelton (1967) 116 CLR 383
Canterbury Municipal Council v Taylor [2000] NSWCA 24
Carey v Lake Macquarie City Council [2007] Aust Tort Reports 81
Leyden v Caboolture Shire Council [2007] QCA 134
Risk under the CLA: ss5G-5K
Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Swain v Waverley Municipal Council (2005)
(3)
Illegality
Civil Liability Act 2002, ss 51-57
Hackshaw v Shaw (1984) CLR 614
Smith v Jenkins (1970) 119 CLR 397
Jackson v Harrison (1978) 138 CLR 438
Gala v Preston (1991) 172 CLR 243
Italiano v Barbaro (1993) 114 ALR 21
Henwood v Municipal Tramsways Trust (Sth Aust) (1938) 60 CLR 438
6.
VICARIOUS/CONCURRENT LIABILITY [B&D 26.1-26.60]
(1)
Generally
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(a), (b)
* X L Petroleum (NSW) v Caltex Oil (Australia) (1985) 155 CLR 448
Thompson v Australian Capital Television (1996) 141 ALR 1
(2)
Contribution between tortfeasors
Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c), (2)
Bitumen and Oil Refineries (Australia) v Commissioner for Government Transport (1955)
92 CLR 200
Brambles Constructions v Helmers (1966) 114 CLR 213
(3)
Liability for employees
(a)
Definition of an employee
Zuijs v Wirth Bros (1955) 93 CLR 561
23
Stevens v Brodribb Sawmilling Co (1986) 160 CLR 16
(b)
The course of employment
PVYW v Comcare (No 2) [2012] FCA 395
Hatzimanolis v ANI Corporation Limited [1992] HCA 21; (1992) 173 CLR 473
Bugge v Brown (1919) 26 CLR 110
Deatons v Flew (1949) 79 CLR 370
Morris v Martin [1966] 1 QB 716
Law Reform (Vicarious Liability) Act 1983 (NSW)
(4)
Contribution and indemnification between employer and employee
Lister v Romford Ice and Cold Storage Co [1957] AC 555
Employees Liability Act 1991 (NSW)
(5)
Agency
Colonial Mutual Life Assurance Society v The Producers and Citizens Co-operative
Assurance Co of Australia (1931) 46 CLR 41
Morgans v Launchbury [1973] AC 127
Motor Accidents Compensation Act 1999, s 112
7.
NUISANCE [B&D14.1-14.58]
(1)
Private nuisance
(a)
Interests protected
Victoria Park Racing and Recreation Grounds Co v Taylor (1937) 58 CLR 479
Thompson-Schwab v Costaki [1956] 1 WLR 335
Young v Wheeler (1987) Aust Torts Rep 80-126
(b)
Title to sue
Oldham v Lawson (No 1) [1976] VR 654
Hunter v Canary Wharf [1997] 2 WLR 684
(c)
Unreasonable and substantial interference
St Helen's Smelting Co v Tipping (1865) 11 ER 1483
Munro v Southern Dairies [1955] VLR 332
P Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128
Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or [2006] NSWSC 230 (6 April 2006)
(d)
Abnormally sensitive plaintiff
Robinson v Kilvert (1889) 41 Ch D 88
(e)
Malicious Intent
Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468
(f)
Balancing Interests
Wherry v KB Hutcherson Pty Ltd (1987) NSW
Thompson-Schwab v Costaki (1956)
Cohen v Perth (2000)
(g)
Defences
24
Allen v Gulf Oil Refining [1981] AC 1001
Miller v Jackson [1977] QB 966
(2)
Public nuisance
(a)
General principles
* Walsh v Ervin [1952] VLR 361
Silservice v Supreme Bread (1949) 50 SR (NSW) 127
York Bros (Trading) v Commissioner of Main Roads [1983] 1 NSWLR 391
(b)
Highway authorities
Brodie v Singleton Shire Council (2001) 180 ALR 145
8.
REMEDIES FOR NEGLIGENT CONDUCT: DAMAGES [B&D27.127.51]
(1)
Injury
Civil Liability Act, Part 2
Motor Accidents Compensation Act 1999, ch 5
Compensation to Relatives Act 1897 (NSW)
Law Reform (Miscellaneous Provisions) Act 1944 (NSW), pt 2
Motor Accidents Compensation Act 1999, s 22
Malec v J C Hutton (1990) 169 CLR 638
Graham v Baker (1961) 106 CLR 340
* Skelton v Collins (1966) 115 CLR 94
Sharman v Evans (1977) 138 CLR 563
* Griffiths v Kerkemeyer (1977) 139 CLR 161
Sullivan v Gordon (1999) Aust Torts Rep 81-524
Van Gervan v Fenton (1992) 175 CLR 327
Cullen v Trappell (1980) 146 CLR 1
Todorovic v Waller (1981) 150 CLR 402
The National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569
25
SAMPLE WORKED ANSWERS
Sample One:
Annie forced her way into Bernie's house and was helping herself to the silverware
when Bernie discovered her. She drew a knife on Bernie and told him to leave her to
it. Bernie grabbed a heavy silver candlestick and struck her over the head causing a
serious injury.
1.
Does Annie have any action in tort against Bernie?
2.
Does Bernie have any action in tort against Annie? If so, what damages (if
any) will be recoverable?
1. Annie v Bernie
Bernie has struck Annie with an object.
The elements of the tort of battery are:
(i)
an act (not an omission): Holmes v Mather;
(ii)
that is direct: Hutchins v Maughan;
(iii)
the act is intentional or careless: Williams v Holland;
(iv)
and causes physical contact with the plaintiff: Collins v Wilcock;
(v)
without the plaintiff's consent: In Re F.
Contributory negligence is no defence to the intentional torts: Horkin v Nth Melb Football
Club Social Club. Necessity is a defence to battery: In Re F. The facts that must be proved
by the defendant in order to fully rely on the defence are:
(i)
that there existed a situation of imminent danger or, at least, what a
reasonable person would consider so; and
(ii)
the steps taken by the defendant in the light of the facts must have been
reasonably necessary: Southwark LBC v Williams.
Self defence and defence of property - an application of the minimum force necessary to
protect one's self or property is a defence to the intentional torts: Hall v Fonceca.
It is currently uncertain as to whether the defendant must disprove the elements of a nonhighway battery (McHale v Watson) or whether the plaintiff must prove the elements of the
tort. In Platt v Nutt, Kirby P. said that the principle, s/he who asserts must prove, ought to
apply in non-highway trespasses so that these torts are brought in line with all the other
torts. Justices Hope and Clarke, however, agreed that on the facts before them the plaintiff
ought to have proved the elements of the tort, particularly that the defendant's conduct
caused the plaintiff's injuries, but their Honours declined to express views in relation to
burden of proof.
The standard of proof is proof on the balance of probabilities.
Bernie striking Annie was a positive act. That act was direct and was done intentionally by
Bernie. He meant to do it. Contact with Annie's person occurred and it can be inferred that
Annie did not consent to the act.
On the facts given, Bernie will not be liable to Annie for battery if he can prove self defence
or defence of property. It is doubtful though that his life was imperilled (Annie wielded a
knife, not a gun) and so the defence of necessity may not apply.
If for some reason the defence of self defence and defence of property fails (for example,
that the force used was excessive), it is clear that Bernie was provoked in his actions.
Therefore, whereas compensatory damages awarded to Annie will not be reduced for her
provocation of Bernie (Fontin v Katapodis), aggravated or exemplary damages claimed by
her may be reduced. It is submitted, though, that on these facts they ought not be claimed
and should not be awarded (cf. Myers Stores v Soo; Lamb v Cotogno).
26
2(a)
Bernie v Annie
Annie entered and remained upon Bernie's land; she attempted to take his silverware and she
waved a knife at him. These facts give rise to the following tort actions:
(a)
Trespass to land
The elements of trespass to land are:
(i)
the defendant intentionally or carelessly: William v Holland
(ii)
enters or remains on or directly causes any physical matter to come
in contact with
(iii)
land in the possession of the plaintiff: Rodriguez v Ufton.
Annie intentionally entered Bernie's land. On the facts she is liable for this tort.
(b)
Trespass to goods
The elements to trespass to goods are:
(i)
a direct: Hutchins v Maughan, and
(ii)
intentional or careless: Williams v Holland
(iii)
interference with goods in the possession of the plaintiff: Penfolds
Wines v Elliot.
Annie 'helping herself' to Bernie's goods comprises a direct and intentional
interference with his goods. On the facts she is liable for this tort.
(c)
Assault
The elements of an assault are:
(i)
an act (not an omission): Holmes v Mather
(ii)
that is direct: Hutchins v Maughan
(iii)
the act is intentional or careless: Williams v Holland
(iv)
and causes the plaintiff to apprehend contact to its person: Barton v
Armstrong.
The first three elements of the assault are proven by Annie intentionally wielding the
knife (not a gun) at Bernie. On the facts given, it is not possible to tell whether, upon
that event occurring, Bernie apprehended contact to his person. If he did, then Annie
is liable for this tort.
(d)
Conversion
Conversion is an intentional dealing with goods inconsistent with the possession or
the immediate right to possession.
Annie intended to 'help herself' to the goods in Bernie's house. Annie's act of 'helping
herself' is a sufficient dealing for the purposes of conversion. It is neither here nor
there that Annie may not have managed to take the goods. These goods are deemed
to be in Bernie's possession and, if not, then he has an immediate right to possession
of them. Annie is liable to Bernie in conversion. Bernie, however, has not suffered any
loss or damage. Conversion is not trespass and therefore is not actionable per se.
2(b)
Damages
It is unclear if Bernie has suffered any harm or loss in his altercation with Annie. If no
harm or loss was suffered then as trespass is actionable per se, he will be awarded
damages for trespass.
Any damage or loss caused by Annie in the commission of the above torts will be met
by an award of compensatory damages. The aim of compensatory damages is to put
the plaintiff in the position s/he would have been in but for the tort. If Bernie can show
that Annie acted with contumelious disregard of his rights then he may seek and be
awarded exemplary damages: Lamb v Cotogno.
27
Sample Two:
Cathy borrowed a book from the Dunswood Library on a thirty-day loan. Edward who
wanted the book urgently took it from Cathy's briefcase the day after she borrowed it.
Does the library have any rights against Edward?
A book owned by a library has been removed from the borrower by a third party during a thirty
day lending term. Whether or not the library has any rights against the third party will depend
on whether or not the borrower breached the lending terms and also on when the library
attempts to bring an action.
During a bailment for a term a bailor has no rights against a third party converter of or
trespasser to the goods: Wertheim v Cheel, unless the bailee has done some act to revoke
the bailment: Penfolds Wines v Elliot. In the latter case the bailment for a term reverts to a
bailment at will and the bailor acquires the immediate right to possession it enjoys in any
bailment at will.
A third party who takes goods may be liable in:
(A)
conversion, which involves an intentional dealing with goods inconsistent with the rights
of the person in possession of the goods or the person in a position to assert a right to
immediate possession of the goods.
(B)
trespass to goods, which involves:
1.
a positive act and not an omission: Holmes v Mather
2.
that is direct: Hutchins v Maughan
3.
and intentional or negligent: Williams v Holland; Williams v Milotin
4.
and causes an interference with goods: Kirk v Gregory
5.
in the possession of the plaintiff: Penfolds Wines v Elliot.
(C)
detinue, which involves a wrongful detention of goods after a demand for their return
has been made by the person with an immediate right to possession.
If Cathy as borrower/bailee has dealt negligently with the book then the Library as
lender/bailor accrues an immediate right to possession of the book when the bailment is
breached. Hence the Library can sue Edward in conversion and trespass to goods: Penfolds
Wines v Elliot.
If, on the other hand, Cathy as borrower/bailee has not breached any term of the bailment
then the Library as lender/bailor in a bailment for a term has no title to sue Edward: Wertheim
v Cheel, until the term of the bailment is over. That is, after the thirty day period has elapsed.
Only then, when the Library acquires an immediate right to possession of the book, can it sue
Edward in conversion and trespass to goods.
In an action by the Library for conversion, the damages are assessed at the date of the
conversion: The Mediana. Trespass is actionable per se and damages are assessed at the
date of the trial.
On the facts as given there is insufficient basis on which to found a cause of action in detinue.
In conclusion, the library as bailor only has rights against Edward in circumstances where:
1.
the bailment has been breached during the term by the bailee, or
2.
the bailment for a term is over after thirty days and has reverted to a bailment at will.
28
Sample Three:
Gay called in to see her next-door neighbour Freda. She found Freda lying
unconscious on her kitchen floor. Freda had suffered an electric shock while probing
a power point with a screwdriver. Gay, in her haste to get to a telephone to dial for
help, tripped over a rug and injured her leg. Does Gay have any action against Freda
for her injury?
Gay visited Freda's house and found her lying unconscious on the floor after negligently
interfering with a power point. While hastening to the phone, Gay tripped on a floor rug and
injured her leg.
To succeed In an action in negligence the plaintiff must prove that:
1. the defendant owed the plaintiff a duty to take care: Chapman v Hearse; Bernie
Port Authority v General Jones, and
2. the defendant has breached that duty: Wyong Shire Council v Shirt, by failing to
deliver the minimum standard of conduct necessary to avoid a breach of duty:
Cook v Cook, and
3. this breach of duty has caused the plaintiff to suffer harm that is reasonably
foreseeable duty that is not too remote: March v Stramare; Wagon Mound No.1
In circumstances where a defendant can prove that the plaintiff failed to take adequate
measures to preserve their own safety, a defence of contributory negligence will be
successful. As a result, damages will be apportioned in accordance with where the
negligence lies: s10(1) Law Reform (Miscellaneous Provisions) Act 1965 (LRMPA65)
The duty owed by Freda to Gay comes from two sources. Freda is an occupier of premises
and so owes a duty to take care when doing dangerous activities to avoid harm to those who
enter the premises: Burnie Port Authority. Freda is also an injured negligent person and on
the authority of Chapman owes her rescuer a duty to take care.
The content of the duty is that Freda, either as an occupier or as an injured negligent person,
must do all that is necessary to avoid visitors to her home or rescuers from sustaining harm
that is reasonably foreseeable. The risk of someone sustaining an injury from slipping on a
floor rug, though improbable, is nevertheless neither far-fetched nor fanciful. Hence, it must
be a real risk and therefore reasonably foreseeable. Whether that risk is so great that the
reasonable person would banish floor rugs can only be decided on balancing the factors of
the magnitude of the risk, the degree of probability of its occurrence, and the expense,
difficulty and inconvenience of taking alleviating action: Wyong Shire Council v Shirt. It is
unreasonable to expect people to eliminate floor rugs altogether but it is reasonable to expect
them to use inexpensive tapes to secure them to the underlying surface, especially where that
could comprise polished boards. On balance, it is submitted that the presence of the floor rug
does not of itself breach Freda's duty as an occupier or as an injured person requiring rescue.
However, a failure to ensure that the rug is fixed could constitute such a breach of duty.
The facts indicate that Gay slipped on the rug when hastening to the telephone. It could be
argued that but for Gay's haste she would not have tripped on the rug at all. This raises the
question of what caused Gay to trip on the rug - the rug itself and the way it was secured to
the floor, or Gay's failure to take care of her own safety when hastening to the phone. A
common sense approach is adopted: March v Stramare.
That Gay's leg injury is foreseeable and not too remote a consequence of slipping on the rug
is not disputed: Wagon Mound No.1.
So, does Gay have an action against Freda? If it is found that a poorly fixed rug constitutes a
breach of Freda's duty to Gay, then Gay can sue Freda in Negligence. However, Gay must
be advised that in that action Freda can raise the defence of contributory negligence, which, if
proved, could lead to the reduction and apportionment of damages awarded to Gay in
accordance with the LRMPA65. Given that Gay was affecting a rescue and that Freda's
negligent conduct put Gay in a position where she conducted herself reasonably although in a
manner that caused her harm, then it is submitted that a defence of contributory negligence
would probably fail: Chapman v Hearse; Caterson v Commissioner for Railways.
29
Sample Four:
Wife and husband, Freda and George, ran a successful art gallery in which Freda's
pottery and George's sculptures were sold along with works by other artists. The
gallery business was operated through a private company, Hands On Pty Ltd, jointly
owned by Freda and George, who divided the gallery hours between them, for which
they were each paid a salary by the company. Freda was badly burnt in a fire caused by
a defect in her potters' kiln which had been negligently manufactured by Indiana
Products Ltd. After one month under intensive care in hospital she died from the
burns. During that month her salary was paid by Hands On Pty Ltd as sick pay. As a
result of Freda's death, the business has suffered, partly because her pottery is no
longer available, partly because her replacement in the gallery is not as successful in
effecting sales. George continued to live in the apartment which he rented with Freda
but now he has to meet all his living costs out of his salary instead of their two salaries
combined.
What actions would George, who is the executor of Freda's estate, and/or Hands On Pty
Ltd have against Indiana Products Ltd and what damages would be recoverable in
those actions?
A. George as Executor v Indiana Products Pty Limited (IP)
George as executor of Freda's estate acquires the right to claim damages for her death under
the Law Reform (Misc Prov) Act 1944 Part 2. The damages payable are outlined in s.2 of that
Act and are as follows:
(i)
pecuniary losses such as hospital and medical expenses incurred in the
time period between the accident and the death
(ii)
cost of a funeral: s.2(2)(c).
As Freda received sick pay in the relevant period then George cannot claim loss of income:
Graham v Baker.
Damages for pain and suffering, bodily and mental harm and loss of expectation of life are not
payable: s.2(2)(d).
B. George as husband v IP
As a husband, George is entitled to bring an action under the Compensation to Relatives Act
1897 (CRA) s.4(1), providing the conditions stipulated in s.3 are met. Those conditions are:
(i)
that the death was caused by the "act, neglect or default" of the defendant:
Woolworths v Crotty; and
(ii)
that the deceased, if she had lived, would have had an action against the
defendant for her injuries: Harding v Lithgow Council.
As the kiln was negligently manufactured by IP and Freda suffered injuries as a result then it is
submitted that both these conditions are met.
Emotional losses were recoverable for the children upon the death of a parent in Swan v
Williams Demolitions. If these damages were available to a spouse then George may recover
them.
George will be compensated for his having to pay Freda's share of the rent.
The courts take into consideration the value, if any, to George of the opportunity to remarry:
Jones v Schiffman.
As George and Freda were each paid a salary by Hands On then it is unlikely that George had
any valid expectation of financial support from Freda. Such an expectation is essential to
recovery: Davies v Taylor.
C. Hands On (HO) v IP
Action for loss of services. HO can seek recovery of the sick pay paid to Freda when she was
in hospital: Graham v Baker.
30
No compensation will be paid for the profits lost when Freda is replaced by a person less
successful in effecting sales than Freda.
No damages for the death are recoverable: Swan.
Sample Five:
Regulations under the Employees' Safety Act require sawmillers to fence circular saws
in order to contain timber ends propelled by the blades. In Ron's sawmill one of the
circular saws was not fenced as required and a timber end propelled from the saw
struck Sam, Ron's employee, on the head, causing serious injury. Tina, Sam's fiancée,
entered the work area just before the accident although she knew that the area was
restricted to employees. Seeing Sam collapse from the blow, she suffered nervous
shock. Ron claims that he had strictly instructed all his employees, including Sam, to
wear a helmet when working near the unfenced saw. A helmet would have avoided
serious injury.
Discuss Ron's liability in tort to both
(i) Sam and
(ii) Tina,
including any defences which may be raised in either case.
(i) Sam v Ron
A. Breach of Statutory Duty.
The elements of this tort are:
1
The statute imposes a duty and not merely a discretion: Galashields. The Act
in question "requires", which is interpreted as an obligation and not a power.
2.
The statute must fix a duty upon the defendant. The Act here imposes a duty
on sawmillers and Ron is a sawmiller.
3.
The statute must allow a personal action in tort: O'Connor v Bray; Abela v
Giew; Tassone v MWSB. In circumstances where the words of the statute do
not expressly provide a private right to sue in tort, the High Court in O'Connor
said that where the Act in question is one dealing with safety and where the
facts also give rise to a duty to take care owed by the defendant to the
plaintiff in the tort of Negligence, then the court will find that a private right to
sue exists unless the words of the statute clearly show a contrary legislative
intention.
4.
The harm suffered must be within the risk guarded against: Gorris v Scott.
Sam sustained an injury from a propelled timber end - thus he suffered harm
contemplated by the statute.
5.
The plaintiff is one of the persons protected by the statute: Knapp v The
Railway Executive. Sam is an employee and so is protected by a statute
entitled Employees' Safety Act.
6.
The defendant failed to do what was required by the statute. Ron failed to
fence a circular saw as required.
7.
The breach of duty must have caused the plaintiff's harm: Bonnington
Castings v Wardlaw; Sherman v Nymboida Collieries. A failure to fence the
saw has allowed the timber end to hit Sam's head.
Subject to the statute giving Sam a private right to sue, it is submitted that he can sue Ron
in this tort. Even if element 3 above is not satisfied then Sam can rely on his proof of the
remaining elements of the breach of statutory duty as evidence of a breach of duty of care in
Negligence: Tassone.
Contributory Negligence as a defence to personal injury as a result of breach of statutory
duty is unavailable by virtue of s.2 of the Statutory Duties (Contributory Negligence) Act
1945.
31
B. Negligence
The elements of this tort are:
1.
the defendant owes the plaintiff a duty to take care: Kondis v STA,
2.
the defendant has breached the duty: Wyong SC v Shirt, by failing to deliver
the minimum standard of care expected: Cook v Cook, thereby causing: March
v Stramare,
3.
the plaintiff to suffer harm that is reasonably foreseeable and not too remote:
Wagon Mound No. 1.
Ron as employer owes Sam as employee a duty to keep the workplace safe. Ron has
failed to fence a circular saw. This involves a real (not far-fetched or fanciful) risk and
therefore a reasonably foreseeable risk that a person may be injured by a propelled wood
end. When examining the magnitude of the risk (a head injury), the probability of the risk
occurring (significant) and the cost of taking alleviating action (low) then it is apparent that
the reasonable person would have fenced the saw. As Ron's conduct has fallen short of
what the reasonable person would have done, then Ron has breached his duty of care to
Sam by failing to fence the circular saw. This failure has caused Sam to suffer harm that is
reasonably foreseeable and not too remote.
Sam has contributed to his own harm (Froom v Butcher) by failing to wear a helmet. He has
suffered injury within the risk to which he exposed himself: Jones v Livox Quarries.
Therefore a defence of contributory negligence, if raised by Ron, would be successful.
Damages would then be apportioned according to where the fault lay: s 10(1) Law Reform
(Misc Prov) Act (LRMPA) 1965.
In order for a defence of voluntary assumption of risk to be successful, Ron must prove that
Sam consented to the saw being unfenced and to being hit on the head with the wood end:
Joseph Smith v Charles Baker. Further, Ron must show that Sam had full appreciation and
knowledge of the risk: ICI v Shatwell. It is submitted that on the facts this defence would not
be made out. If, however, it were made out, then it would be a complete defence.
(ii) Tina v Ron
Nervous Shock.
(i)
Under s.3 of the LRMPA44, Tina may have a cause of action if she lives
with Sam on a bona fide domestic basis: s.4(5).
(ii)
At common law: Jaensch v Coffey. Tina must prove the elements of the tort
of Negligence outlined above. Ron owes all entrants a duty of care, even
trespassers: Hackshaw v Shaw. The standard of care owed to a trespasser
could be quite low so that Ron may not have breached his duty to Tina.
Tina's suffering nervous shock is not too remote a consequence of a (if any)
breach of duty. If Ron is liable in negligence, then he can raise the
defences of contributory negligence and voluntary assumption of risk,
outlined above.
(iii)
As Tina is not an employee she derives no protection from the Employees'
Safety Act and could not sue for breach of statutory duty.
Sample 6:
Harold took his valuable Swiss watch to Jane, a jeweller, for cleaning. Jane, who was
in pressing financial circumstances, took the watch, intending to use it as security for
a loan from a pawnbroker. On her way to the pawnbroker, she called in to Karla's
sandwich shop to buy lunch. As she was leaving Jane inadvertently left the watch on
the shop counter and took two packets of chewing gum from a counter stand without
paying. Karla saw Jane take the gum, but, seeing the watch on the counter called out:
"you can have this back when you pay for the gum". Jane ran from the shop and into
Lionel who was walking along the footpath outside the entrance to the shop. Both
Jane and Lionel were injured.
32
Harold has traced the watch to Karla but she refuses to hand it over until she has been
paid for the gum.
Discuss the causes of action in tort arising out of the above, without regard to any
questions of contribution.
A. HAROLD V JANE
Harold as owner/bailor of his watch has entered into a bailment on the condition that it be
cleaned by Jane as bailee. He parts with possession of his watch. At this point, Jane has
already decided to use the watch as security for a loan from a pawnbroker. It could be
argued that in these circumstances the bailment never crystallised and that Harold always
retained a right to immediate possession of his watch. If, on the other hand, the bailment is
created, then it is surely breached when Jane treats the bailor's goods in a manner repugnant
to the terms of the bailment, that is, by setting off to the pawnbroker's to fulfil her mal-intent.
Such a bailment then reverts to a bailment at will and the bailor acquires an immediate right to
possession: Penfolds Wines v Elliott (1946) 74 CLR 204 ("Penfolds Wines").
(a)
Trespass to goods
The elements of a trespass to goods are:
1. a direct: Hutchins v Maughan [1947] VLR 131; and
2. intentional or careless: Williams v Milotin (1957) 97 CLR 465;
3. interference with goods in the possession of the plaintiff: Penfolds Wines.
Generally, only a person in possession of goods at the time of a trespass can sue in
this tort. One exception is that a bailor with an immediate right to possession may sue
a third party who wrongfully dispossesses the bailee of the bailor's goods: Penfolds
Wines. Jane is not such a third party and, as such, Harold has no title to sue her in
trespass to goods.
(b)
Conversion
A conversion is an intentional dealing with goods inconsistent with the possession or
the immediate right to possession of the plaintiff: Penfolds Wines.
Harold has title to sue in conversion. Jane's taking of the watch to the pawnbroker is
evidence of an intention to deal with Harold's goods in a manner inconsistent with his
rights to immediate possession of the goods. On the facts, Jane would be liable for this
tort.
B.
HAROLD V KARLA
(a)
Trespass to goods
The elements of this tort are outlined above.
Karla's wrongful dispossession of Jane of the watch will render her liable to Harold in
this tort. Had Karla's dispossession not been wrongful then she would not be liable:
Penfolds Wines.
(b)
Detinue
Detinue comprises a wrongful detention of goods after a demand for their return has
been made by a person with a right to immediate possession of the goods.
Implicit in Karla's refusal to return the watch is Harold's request to do so. Therefore, on
the facts, Karla will be liable for this tort.
33
(c)
Conversion
That an unlawful detention of goods can comprise a conversion is stated in Howard E
Perry v British Railways Board [1980] WLR 1375. On this authority, Karla will be liable
to Harold for conversion as well.
C.
KARLA V JANE
Jane has taken chewing gum from Karla without paying for it.
(a)
Trespass to goods
The elements of this tort are outlined above. Jane taking the gum was a direct and
intentional interference with goods in Karla's possession.
(b)
Conversion
The elements of this tort are outlined above. Jane has intentionally dealt with the
chewing gum in a manner repugnant to Karla's rights in the gum.
(c)
Detinue
The elements of this tort are outlined above. It is submitted that this tort does not lie for
goods of a common and essentially replaceable nature, and where a remedy of
damages would be sufficient.
(d)
Trespass to Land
The elements of a trespass to land are:
1. the defendant intentionally or carelessly: Williams v Milotin (1957) 97 CLR
465
2. enters or remains on or directly causes physical matter to come in contact
with
3. land in the possession of the plaintiff: Rodriguez v Ufton (1894) 20 VLR 539.
An implied licence exists for people to enter private land. The existence of such a
licence is a question of fact: Halliday v Neville (1984) 155 CLR 1. The occupier of
land can, as a matter of fact, revoke the Iicence: Plenty v Dillon (1991) 171 CLR 635.
Applying these cases to the facts at hand, it could be argued by Karla that she grants
a licence to all customers who enter her shop with a genuine intention to buy goods
there. When that intention changes to one of taking goods without paying, then Karla
could show that the licence previously granted by her to the entrant is revoked, and
the entrant becomes a trespasser. On this basis Jane would be liable for trespass to
land.
D.
LIONEL V JANE
(a)
Assault
The elements of assault are:
1. an act, not an omission: Holmes v Mather (1875) LR 10 Ex 261
2. that directly: Hutchins v Maughan [1947] VLR 131
3. and intentionally or carelessly: Williams v Milotin (1957) 97 CLR 465
4. causes the plaintiff to immediately apprehend unwanted physical contact to
their person: Barton v Armstrong [1969] 2 NSWLR 451
Jane running from the shop was a direct and intentional act to further her escape with
the stolen chewing gum. She meant to do it. If Lionel can prove that he apprehended
unwanted physical contact then Jane will be liable in this tort.
34
(b)
Battery
The elements of battery are:
1. an act, not an omission: Holmes v Mather (1875) LR 10 Ex 261;
2. that directly: Hutchins v Maughan [1947] VLR 131
3. and intentionally or carelessly: Willians v Milotin (1957) 97 CLR 465;
4. causes contact with the plaintiff: Collins v Wilcock [1984] 1 WLR 1172
5. without the plaintiff’s consent: In re F [1990] 2 AC 1
On the given facts Jane will be liable in battery.
It is unclear whether this is a highway or non-highway battery. If it is the former, then
the plaintiff must prove all the elements of the cause of action: Venning v Chin (1974)
10 SASR 299. If it is the latter, then the plaintiff must only prove unwanted contact by a
direct act and it is then the burden of the defendant to disprove their intention or
carelessness: Platt v Nutt (1988) 12 NSWLR 231.
E.
JANE V KARLA
Jane inadvertently leaves the watch on Karla's shop counter. Karla then takes the
watch and uses it as leverage against Jane to extract from her payment for the gum.
Under the common law a plaintiff (Jane) often succeeded in conversion even though
the defendant (Karla) could show that a third party (Harold) had a better title to the
goods than the plaintiff (Jane). Hence, under this rule, Jane retains a better possessory
title to the watch than Karla, notwithstanding that Jane's possession, by her own
dealings with the watch, became wrongful. For a fuller discussion of this area see
Balkin & Davis, Law of Torts, Butterworths 2nd ed. 1996, page 72ff.
Sample Seven:
Windyshire Council is the owner of the Windyshire Olympic Pool complex. It has
leased the pool complex to Poolworld Ltd which takes over the responsibility of
maintaining and operating the pool. Windyshire Council is aware that the filter in the
pool will soon need replacement. One aspect of the maintenance is the chlorination of
the pool which requires the weekly application of large amounts of chlorine.
One morning, Scott, a Poolworld employee, carries out the weekly application of
chlorine to the water. Due to a sudden fault in the filter system, the chlorine levels
remain unsafe for swimming. At lunchtime a mate, Geoff, arrives for a swim and, in
contravention of Poolworld's explicit standing instructions, Scott allows him to dive in
before Scott has tested the chlorine levels of the water.
Geoff's eyesight is seriously affected.
Advise
(a)
Geoff on the appropriate defendants for any claim and the basis of their liability;
and
(b)
the defendants on possible contribution proceedings.
(a)
APPROPRIATE DEFENDANTS
(i)
Geoff v Scott
Negligence
The elements of Negligence are as follows:
(i)
the defendant owes the plaintiff a duty to take care to avoid
causing personal injury: Donoghue v Stevenson [1932] AC 562
and
35
(ii)
(iii)
the defendant breaches that duty: Wyong Shire Council v Shirt
(1980) 146 CLR 40 by failing to deliver to the plaintiff the
minimum standard of care expected: Cook v Cook (1986) 162
CLR 376, thereby causing: March v Stramare (1991) 171 CLR
506
the plaintiff to suffer harm that is reasonably foreseeable and not
too remote: Wagon Mound No 1 [1961] AC 388.
Scott owes Geoff a duty to avoid reasonably foreseeable harm. There is a real
(not far-fetched or fanciful) and therefore a reasonably foreseeable risk
involved in Scott allowing a person to swim in the pool without first ascertaining
that the pool chlorine levels are safe. The magnitude of the risk is large
(damaged eyesight), its probability high, and Scott cannot raise any competing
factors in answer to his carelessness. In the circumstances, a reasonable
person faced with this risk would check the chlorine levels and alert those
persons either in charge of entry to the pool or those persons about to swim in
the pool that it is unsafe to do so. Therefore, Scott's conduct falls short of that
expected from a reasonable person delivering the minimum standard of care
and so comprises a breach of the duty of care owed by him to Geoff. A failure
to check the chlorine levels and report adverse findings has resulted in Geoff
diving into the pool. There are no facts provided that support the contention
that despite the warning Geoff would have dived in anyway. Therefore the
cause, arrived at by an application of common sense, of Geoff's injury is
Scott's careless conduct. The injury that has resulted is of a kind that could be
reasonably foreseen.
On the facts given, it is submitted that Scott will be liable to Geoff in Negligence
and therefore would be an appropriate defendant.
(ii)
Geoff v Poolworld Ltd ("PW")
(a)
Direct Liability
Negligence
The elements of Negligence are stated above.
The legal basis of a duty owed by PW to Geoff is that of occupier to invitee:
Australian Safeways Stores v Zaluzna (1987) 162 CLR 479. Additionally, PW,
in taking advantage of its occupation of premises to do something dangerous,
owes Geoff a duty to ensure that care is taken of his safety: Burnie Port
Authority v General Jones (1994) 179 CLR 520. Whether or not the operation
of a pool is a dangerous activity is a matter for the court to decide.
PW specifically instructed its employee, Scott, to prevent entrants to the pool
from swimming prior to Scott testing the chlorine levels of the water. If this is
regarded as equal or more than what the reasonable pool operator would do
then PW has not breached its duty to Geoff. If, however, the reasonable
person would have had a checking system in place so that the pool would not
be opened to the public before the chlorine levels were known, or if there ought
to have been more supervision of Scott's work, then PW will be in breach of its
duty to Geoff.
If the operation of a pool can be regarded as a dangerous activity, then
evidence of PW's breach of its duty to ensure that care is taken is found in the
fact that the pool has been made available for the use of swimmers when its
chlorine levels are unsafe.
The questions of causation and reasonably foreseeable harm were dealt with
above.
Geoff is advised that PW could be an appropriate defendant.
(b)
Vicarious liability
36
An employer is liable for the torts of their employees committed in the course of
employment.
We are told that Scott is an employee. The question then becomes: is his
contravention of PW's specific standing instructions in allowing Geoff to dive in
prior to Scott's testing the water within the course of employment? The answer
is a question of fact: Bugge v Brown (1919) 26 CLR 110. If Scott's conduct is
in the course of employment then PW will be liable to indemnify him.
(iii)
Geoff v Windyshire Council ("WSC")
Negligence
The elements of negligence are stated above.
The legal basis of a duty owed by WSC to Geoff is that of landlord to one who
makes the tenancy viable: Northern Sandblasting v Harris (1997) 146 ALR
572. The determination of the rights and responsibilities of WSC and PW in
relation to the replacement of a faulty filter are probably dictated in the lease
binding them. As such it is impossible to state that WSC's mere knowledge
that the filter would soon need replacing and its failure to replace it sooner
rather than later are sufficient to render it liable for a breach of duty to Geoff.
Further, we do not know if the sudden fault in the filter was caused by its
needing replacement. We have no evidence as to whether or not new filters
can manifest this sudden fault that leads to high chlorine levels in the pool
water.
WSC can argue that questions about the filter are unimportant because the
faulty filter was not the cause of Geoff's injury. The real cause was Scott's
failure to check the levels and exclude Geoff from using the pool. High
chlorine levels, however caused, would probably not result in injury to those
prevented from entering the pool.
Geoff is advised that WSC's carelessness (if any) in relation to the pool filter is
probably not the cause of Geoff's injuries and therefore it will probably not be
liable to him in Negligence. WSC will not, on this basis, be an appropriate
defendant.
(b)
CONTRIBUTION PROCEEDINGS
It is important to note that each of the damages awarded to Geoff will be for a total sum
against each party. It is then up to the defendants to recover from each other under
section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 ("LRMPA 46").
Joint tortfeasors act in concert to cause the same damage. Several tortfeasors act
independently to cause the same damage. Scott and PW, if liable, are joint tortfeasors
whereas PW and WSC, if liable, are several tortfeasors.
(i)
Scott v PW
Scott and PW are joint tortfeasors.
Providing the conditions of Section 5 of the Employees Liability Act 1991 are
met, then, under Section 3 of that Act, PW cannot seek to recover from Scott
the damages it was ordered to pay out on his behalf.
If, on the other hand, Scott's torts cannot be regarded as being in the course of
employment or else they were the result of wilful misconduct, then he and PW
are treated as joint tortfeasors under the LRMPA and damages will be
apportioned under section 5(2) of that Act. The existence of wilful misconduct
is unlikely, though, given that Geoff is Scott's mate.
37
(ii)
PW v WSC
Providing both parties are liable, then contribution proceedings between them
will result in apportionment of damages pursuant to s.5(2) of the LRMPA 46.
A party that is not liable will not be required to contribute damages: Bitumen
and Oil Refineries (Australia) v Commissioner for Government Transport
(1955) 92 CLR 200.
38
CASE NOTE EXAMPLE
PENFOLDS WINES PTY LTD V ELLIOTT (1946) 74 CLR 204
FACTS
Penfolds Wines Pty Limited ("Penfolds") was a wine producer and seller. Elliott was a
licensed hotelier carrying on business at a hotel in NSW. Through embossing on their bottles
and notations on their invoices, Penfolds informed all those in possession of its bottles that
they were to be used only for the purposes of retailing and consumption of Penfolds’ wines
and, further, that they always remained the property of Penfolds.
Penfolds asserted that Elliott, without its consent, had been receiving, collecting and handling
their embossed bottles, using them in connection with his business and delivering to his
customers liquids not manufactured or marketed by Penfolds. Penfolds sought an injunction
to have the practice stopped.
TRIAL JUDGE'S DECISION
At the trial, Nicholas CJ found that
(a)
Elliott filled two of Penfolds' bottles with wine other than Penfolds' wine and delivered
them to Moon for a sum of 8 shillings. The bottles were not sold to Moon.
(b)
Elliott had for years and once subsequently filled Penfolds' bottles with non Penfolds'
wine. Two of these filled bottles were delivered to Elliott's brother.
(c)
Elliott did not sell Penfolds' bottles.
Penfolds asserted that:
(1)
Elliott's activities described in (a) above involved an assumption of dominion over the
bottles which amounted to conversion, and
(2)
Elliott's activities described in (b) above amounted to a use of the bottles inconsistent
with the terms of delivery of the bottles.
The trial judge found that Elliott's conduct amounted to a trespass to goods. His honour
refused to order an injunction because there was inadequate evidence that Elliott intended to
sell the bottles or to keep them if asked by Penfolds to return them.
ISSUE/S ON APPEAL
Penfolds appealed to the High Court seeking an injunction.
THE HIGH COURT
The High Court comprised Latham CJ, Starke, Dixon, McTiernan and Williams JJ.
Latham CJ
Penfolds' branded bottles were bailed to persons who received them. By the terms of the
bailment, the bailee was not entitled to use the bottles for another purpose than once only for
retailing, consuming or using the plaintiff's wine contained in the bottles, and such a person
has no right to authorise any other person to use them for any other purpose (at 213). A
bailment is determined by any act of the bailee which is wholly repugnant to the holding as
bailee, and at that point the bailor has an immediate right to possession. The delivery of
bottles by Elliott's brother to Elliott to have them filled with wine other than Penfolds' was in
breach of the express terms of the bailment. This ended the bailment and Penfolds as bailor
acquired an immediate right to possession of the bottles (at 214).
A mere taking or asportation of a chattel may be a trespass without the infliction of any
material damage. The handling of a chattel without authority is a trespass. Unauthorised use
of goods is a trespass, eg using a bottle. The normal use of a bottle is as a container, and the
use of it for this purpose is a trespass if it is not authorised by a person in possession or
entitled to immediate possession.
As Elliott obtained the bottles from his brother with the latter's authority then there can be no
trespass against his brother. [His honour then examines authorities that contend that a
plaintiff suing in trespass must have been in possession of the goods at the time of the
trespass, except where the trespass was against the plaintiff’s servant, agent or bailee under
a revocable bailment.]
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The possession of a servant is the possession of their master; the possession of an agent is
the possession of their principal. In neither case is it "another's possession". Therefore, each
is regarded as having actual possession (at 216). In relation to a revocable bailment, the
bailor has neither possession nor an immediate right to possession so long as the bailment
remains unrevoked. If the possession of a bailee holding under such a bailment is violated, it
is the bailee's possession and not that of the bailor which is violated. Hence, if the bailor may
sue for trespass, then the bailor is suing for a violation to another's possession.
In this case the bailment expired when brought by Elliott's brother to Elliott to be filled with
wine other than Penfolds'. Penfolds then became immediately entitled to possession of the
bottles. Therefore, Penfolds could sue in trespass although logical argument tended against
this view.
The use of the bottles by Elliott without any regard for Penfolds' rights for the benefit of Elliott
and his brother was a conversion (at 218). Also, Elliott dealt with the bottles as being a
person entitled to dispose of them to Moon, such a disposition being a conversion.
His honour ordered an injunction restraining Elliott from using Penfolds' bottles for any
purpose other than that of containing liquids manufactured or placed there by Penfolds.
Starke J
His honour found that trespass did not lie but found conversion of Penfold's bottles. As
Elliott's filling of the bottles was not a systematic practice, then Penfolds ought to be left to
their common law remedies of damages and an injunction ought not to be awarded.
Dixon J
The facts reveal no trespass because there is, on Elliott's part, no infringement of another's
possession (at 224).
An immediate right to possession is insufficient to support an action in trespass. If it were
sufficient then conversion would have been an unnecessary remedy. The correct view is that
the right to possession as entitlement for suing in trespass is merely a right in one person to
sue for a trespass done to another's possession: and this right exists whenever the person
whose actual possession was violated held as servant, agent or bailee under a revocable
bailment for or on behalf of the person having the right to possession (at 227).
The determination of the bailment may enable the bailor to sue in conversion or detinue but
not in trespass. Such determination revests the bailor's right to possession and therefore the
bailor's immediate right to sue in conversion or detinue (at 227).
There is no conversion because on Elliott's part, there is no act and no intent inconsistent with
Penfolds' rights to possession (at 224). The essence of conversion is a dealing with a chattel
in a manner repugnant to the immediate right of possession of the person who owns the
goods. Use of a chattel is not conversion. An intent to do that which would deprive the "true
owner" of their immediate right to possession or impair it is the essential basis of conversion
(at 229). The re-delivery by Elliott of filled bottles to those who left them with him to be filled
involved a transfer of possession but not for the purpose of conferring any right over the
property in the bottles.
His honour found that there was no basis for an injunction.
McTiernan J
His honour concludes that the only wrong committed by Elliott is a conversion of two of
Penfolds' bottles and that the case is not a proper one for an injunction (at 232).
Williams J
There was no violation by Elliott of his brother's possession of the bottles. There was
therefore no asportation of the bottles from the person in actual possession and so Penfolds
have no case against Elliott in trespass (at 242).
For Elliott to fill the bottles as he did knowing that they were the property of Penfolds
amounted to a conversion (at 243).
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His honour granted an injunction.
OUTCOME OF THE APPEAL
Trespass was found only by Latham CJ.
Conversion was found by all except Dixon J.
The appeal was dismissed by Starke, Dixon and McTieman JJ. The appeal was allowed by
Latham CJ and Williams J.
IMPACT ON CURRENT LAW
The majority decision in Penfolds affirmed that only a person in possession can sue for
trespass except where that person is the bailor, master or principal of a person who, having
suffered a violation of actual possession, was a bailee under a revocable bailment or servant
or agent of the former. Further, an unjustified use of goods will amount to a conversion
provided there is an intention to exercise dominion over them.
The case is unfortunate in that there is conflict between opinions supporting an order. As
such, its judicial force may be diminished as it is difficult to distinguish ratio from obiter: see
Paton GW and Sawer G "Ratio Decidendi and Obiter Dictum in Appellate Courts" [1947] 63
LQR 461.