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Torts-exam-notes - Tort Exam Notes and answer guides
Torts (Deakin University)
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MLL 213- TORTS
2017
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Contents
Page 3- Negligence Template
Page 4- Vicarious Liability
Page 12- Damages/Compensation
Page 34- Negligence
Page 48- Breach of Duty
Page 65- Causation
Page 78- Remoteness
Page 82- Special Duty
Page 95- Defences
Page 107- Private Nuisance
Page 115- Breach of Statutory Duty
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NEGLIGENCE
SKELETON
In the tort of negligence, the harm or damages to plaintiff must be recognisable:
Mahoney v Kruschisch.
Transient emotions (stress, fear, anxiety) or inconvenience are not compensable
forms of damage: Jaensch v Coffey.
ELEMENTS:
1. Duty of care
i. Established category of duty of care
ii. Reasonable foreseeability of the plaintiff
2. Breach of duty of care
Section 48 of Wrongs Act
(1) ‘A person is not negligent in failing to take precautions against a risk of
harm unless –
a. Reasonably foreseeable risk
b. The risk was not insignificant; and
c. Reasonableness
In determining reasonableness:
i. Standard of care
ii.Calculus of negligence = Section 48(2) of Wrongs Act
3. Causation
4. Remoteness of damage
DEFENCES TO NEGLIGENCE
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Vicarious Liability
Skeleton:
1. Intro:
The approach to determining Vicarious Liability is to apply the two
tests set out in Deatons Pty Ltd v Flew (HCA, 1949); and Sweeney v
Boylan Nominees (HCA, 2006) at [12].
The first test for VL, is whether the relationship between Party A
(organization) and Party B (employee) is one between employer and
employee (ie, a contract of service), or principal and contractor (ie,
contract for services)?
The second test for VL requires establishing whether Party B
(empoyee’s) (deliberately wrongful) act occurred in the course of
their employment, or was reasonably incidental thereto.
This requires determining whether the negligent act was:
-a ‘wrongful mode of performing an authorized act’ (Canterbury
Bankstown Rugby League Football Club v Rogers NSWCA, 1993), and
therefore within the course of their employment; or
-an unauthorized act that they were not employed to perform, and
therefore on a ‘frolic of their own’, and so not within the course of
their employment and their employer is therefore not liable: Deatons
Pty Ltd v Flew; Fontin v Katapodis.
2.
Apply to facts:
-Intentional tort or Negligent act?
-‘Relevant approach’ established in A, DC v Prince Alfred College
Incorporated: Authority; Power; Trust; Control; Intimacy with victim
1. Duty of Care
-RF
2. Breach of Duty
-foreseeable (s 48(1)(a))
-not insignificant (s 48(1)(b))
-reasonable precautions (s 48(1)(c))
3. Causation
-s 51 Wrongs Act
4. Remoteness
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3.
Conclude
Vicarious Liability of an Employer
-Employer vicariously liable for tortious acts by an employee
-Policy rationale:
-Discussed in Hollis v Vabu (Austlii)
-‘Deep Pockets’ at [41]
-a ‘just and practical’ remedy
-Deterrence at [53]
-incentive to reduce risk
-Note: employee remains personally liable (employer and employee’s liability
is ‘joint and several’)
Pre-requisites to Vicarious Liability
1. A relationship of employer and employee; and
2. The employee’s actions were in the course of employment, or reasonably
incidental thereto.
Deatons Pty Ltd v Flew (HCA, 1949);
Sweeney v Boylan Nominees (HCA, 2006) at [12]
1. Indicia of a relationship of employer and employee
-Was the tortfeasor operating his or her own business? If yes, not an employee but a
contractor.
-ie, was the tortfeasor and employee an independent contractor, external to the
business
-The difference depends on balancing a number of factors (indicia)
-Words used in contract not decisive:
-‘The parties cannot create something which has every feature of a rooster, but
call it a duck and insist that everyone else recognise it as a duck’: Re Porter (1989)
34 IR 179
-The ‘control’ test- an important indicia
-Traditional ‘control’ test: whether the contract placed the supposed employee
subject to the command of the employer
Stevens v Brodribb (HCA, 1986)
-Modified control test per Mason J (at 29)
-Degree of control that employer/principal can exercise over
employee/contractor is a ‘significant factor’
-This ‘degree of control test’ is not so much the ‘actual control’ that a person
exercises over
another ‘as in the right of the employer to exercise it’,
citing Dixon J in Humberston v Northern Timber Mills
-This is common law adapting to contemporary society
-Other indicia:
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-Mode of remuneration
-Provision and maintenance of equipment
-Obligation to work
-Hours of work and provision for holidays
-Deduction of income tax
-Ability to delegate work
-Control test is not the only relevant factor; ‘Rather it is the totality of the
relationship between the parties which must be considered’ per Mason J (at 29)
Hollis v Vabu (Austlii)(HCA, 2001)
Majority judgment at [47] held that the couriers were employees
‘In classifying the bicycle couriers as independent contractors, the Court of Appeal
fell into error in making too much of the circumstances that the bicycle couriers
owned their own bicycles, bore the expenses of running them and supplied many of
their own accessories. Viewed as a practical matter, the bicycle couriers were not
running their own business or enterprise, nor did they have independence in the
conduct of their operations. A different conclusion might, for example, be
appropriate where the investment in capital equipment was more significant, and
greater skill and training were required to operate it.’
Other Factors (at [48]-[57]):
1. Couriers were not providing skilled labour or labour which required special
qualifications.
2. Couriers had little control over the ‘manner of performing their work’, i.e.
-hours of work: assigned work according to a roster and the time at which
they signed on
-obligation to work: could not refuse work,
-could not delegate work
3. Couriers were presented to the public and to those using the courier service as
emanations of Vabu. They were to wear uniforms bearing Vabu’s logo.
4. Deterrence rationale: make employer responsible so employer takes measures to
avoid risks of injury/harm.
5. Vabu ‘superintended the … finances’ of the couriers, i.e. had to correct errors by a
certain deadline; could not bargain rates; rates had not been charged for
years, Vabu could withhold pay for errors, overcharges, or unpaid bills,
monetary ‘penalties’ for failure to return gear; Vabu deduced insurance
from courier’s pay, passed on excess for couriers, and did not pay MLE;
payment per delivery; control over leave.
-provision for holidays
-deduction of income tax
That is, couriers had ‘limited scope for the pursuit of any real business
enterprise on their own account’.
6. ‘Situation in respect of tools and equipment’, i.e. despite the fact that couriers had
to provide their own bikes and maintain them as well as their uniform and
radio this ‘capital outlay was relatively small and because bicycles are not
tools that are inherently capable of use only for courier work’.
7. (‘as a corollary to’ point 2 above) not only was there the ‘right’ to control in
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incidental or collateral matter, but ‘there was considerable scope for the
actual exercise of control’ : ‘Vabu retained control of the allocation and
direction of the various deliveries. The couriers had little latitude.
8. (also expressed as part of point 7 above, but in fact quite distinct): the
‘organisation test’: the couriers’ labour ‘comprised the very essence of the
public manifestation of Vabu’s business. It was not the case that the couriers
supplemented or performed part of the work undertaken by Vabu or aided
from time to time; rather, … they were Vabu and effectively performed all of
Vabu’s operations in the outside world.’ at [57]
Sweeney v Boylan Nominees Pty Ltd (supplement) (HCA, 2006)
Facts:
Mechanic, self-employed in his own repair company, repaired broken fridge door
negligently.
Issue:
Was Boylan, the company that managed the refrigerators, and who hired an
independent mechanic to go and repair the fridge, contractually responsible for the
repair of the fridge, and who engaged with the fridge’s mechanic, vicariously liable
to Sweeney, who was injured by the door when it fell on her.
Held:
Not vicarious liability for the negligence of the mechanic. The fact that the
mechanic was an independent contractor was determinative of the issue of
vicarious liability: at [33] the mechanic ‘did what he did not as an employee of the
respondent but as a principal pursuing his own business or as an employee of his
own company pursuing its business.
Contrasts the facts in Hollis v Vabu
The appellant argued:
“if A represents B, B is vicariously liable for the conduct of A”
-Integration within the organisation
-Was T representing the organisation?
-Were T’s activities central to the organisation’s work, or merely incidental?
-Defendant’s rights to control the manner of the work
-How and when the work is to be done
-Provision of skilled/specialised labour
-Period of the work- fixed or indefinite
-T’s freedom to refuse work.
-Requirement to wear a uniform
-Mode of remuneration
-Provision and maintenance of equipment
-Income tax deductions
-Intention of the parties
-Ability of T to delegate the work
-T’s freedom to work for others
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See also Elazac Pty Ltd v Shirreff [2011] VSCA 405
Ultimate Question per Bromberg J:
Simply expressed, the question of whether a person is an independent contractor in
relation to the performance of particular work, may be posed and answered as
follows;
Viewed as a “practical matter”:
i) is the person performing the work an entrepreneur who owns and operates a
business; and,
ii) in performing the work, is that person working in and for that person’s business
as a representative of that business and not of the business receiving the work.
If the answer to that question is yes, in the performance of that particular work, the
person is likely to be an independent contractor. If no, then the person is likely to be
an employee.
-Test was adopted in Fair Work Ombudsman v Quest South Perth Holdings (Quest)
[2015] FCAFC 37, [210], [212], [217] (Bromberg and North JJ)
-Not adopted in Tattsbet Ltd v Morrow [2015] FCAFC 62, [63] (Jessup J) (Allsop CJ
and White agreeing)
-Reconcile these tow decisions?
-Statements by Bromberg and North JJ in Quest Obiter?
-Quest distinguishable on its facts?
Which is consistent with HCA authority?
-Test is clear and simple: Pittard p.65
-But basis of test (Windeyer J’s comments in Whittakers’ case HCA 1963) not
supported in Stevens v Brodribb or Hollis v Vabu
-Authority of this 2-stage test is unclear.
2. In the course of employment or reasonably incidental thereto
-Wrongful mode of performing an authorised act, vs an unauthorised act that the
employee was not employed to perform.
-Employer liable where employee performs an authorised act in an unauthorised
way:
-Canterbury Bankstown Rugby League Football Club v Rogers (NSWCA, 1993)
-Employer NOT liable where employee performs an unauthorised act, i.e. on a
‘frolic’ of his/her own.
Unauthorised act of employee
-Employer not Vicariously liable where employee performs an unauthorised act
that the employee was not employed to perform.
-Deatons v Flew (HCA, 2004)
-Blake v JR Perry Nominees Pty Ltd (VSCA), 2012)
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-But sexual abuse cases indicate that intentional acts by employee do not
necessarily prevent the imposition of vicarious liability to employer
-State of NSW v Lepore (HCA, 2003)
-Prince Alfred College Incorporated v ADC (HCA, 2016)
State of NSW v Lepore (HCA, 2003)
Facts: Lepore sexually abused by public school teacher (tortfeasor)
Issue: Is the conduct of the teacher too far from their responsibilities in the act of
their employment to impose vicarious liability upon the state, as the teacher did not
serve an intimate and ‘protector’ role?
Held: The State is not held Vicariously Liable for the tortfeasor’s act as it was not
within the scope of their activities of employment.
Status of tests in Lepore- Which one applies?
No clear test
But, some subsequent appellate court decisions have followed Gleeson CJ (and Kirby
J’s) ‘sufficient’ connection test.
-Withyman v State of New South Wales and Blackley [2013] NSWCA 102, [143]
(Allsopp P)
-Erlich v Leifer & Anor [2015] VSC 499, [12], [130], [134] (Rush J)
- A, DC v Prince Alfred College Incorporated [2015] SASCFC 161 (SASCFC)
-Recent case of A, DC v Prince Alfred College Incorporated adopted Gleeson CJ test
ADC v Prince Alfred College Incorporated [2016] HCA 37
A Boarding school who hired a Dean (housemaster). Dean sexually abused the
respondent and therefore the courts had to determine the vicarious liability of the
boarding school.
-French CJ, Kiefel, Bell, Keane, and Nettle JJ (majority joint judgement) on the
‘relevant approach’ to VL
-[80]: ‘In cases of the kind here in question [i.e., sexual abuse of children in
educational or care facilities: see [43]], the fact that a wrongful act is a criminal
offence does not preclude the possibility of vicarious liability.
-… Conversely, the fact that employment affords an opportunity for the commission
of a wrongful act is not of itself a sufficient reason to attract vicarious liability.
-… As Gleeson CJ identified in New South Wales v Lepore and the Canadian cases
show, the role given to the employee and the nature of the employee’s
responsibilities may justify the conclusion that the employment not only provided
an opportunity but also was the occasion for the commission of the wrongful act.
-[81]: ‘Consequently, in cases of this kind, the relevant approach is to consider any
special role that the employer has assigned to the employee and the position in
which the employee is thereby placed vis-a-vis the victim. In determining whether
the apparent performance of such a role may be said to give the “occasion” for the
wrongful act, particular features may be taken into account. They include
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authority, power, trust, control, and the ability to achieve intimacy with the victim.
The latter feature may be especially important. Where, in such circumstances, the
employee takes advantage of his or her position with respect to the victim, that may
suffice to determine that the wrongful act should be regarded as committed in the
course or scope of employment and as such render the employer vicariously liable.
‘Relevant approach’ from HCA in ADC v Prince Alfred College Incorporated: general
or confined to ‘cases of this kind’?
-Majority in Prince Alfred College distinguished between the approach to be taken
to the question of VL ‘generally’ versus ‘cases of the kind here in question’: [38]
-‘Cases of this kind’= ‘concerning the sexual abuse of children in educational,
residential, or care facilities by persons who were placed in special positions with
respect to the children’ [38]
-Does the ‘relevant approach’ (i.e., the majority approach to vicarious liability)
apply to just ‘cases of this kind’ or also generally?
-It appears that the HCA wanted the relevant approach to VL to apply ‘generally’.
-this was because the relevant approach consistent with previous decision of
Deatons Pty Ltd v Flew (HCA, 2003): [53]-[56],[80]
-but relevant approach NOT consistent with English decision of Mohamud v Wm
Morrison Supermarkets plc (2016) AC 677 (UK SC, 2016): [73], [83]
Deatons Pty Ltd v Flew (HCA, 2003)
Facts: Plaintiff in a bar had an argument with Defendant’s employee, a barmaid,
and asked to speak to the licensee (defendant). The barmaid, unprovoked,
responded by throwing a glass at the plaintiff, which hits his eye and caused loss of
sight in that eye.
Issue: Was the defendant employer liable for acts of employee barmaid?
Held: Defendant was not vicariously liable for the acts of the barmaid because her
actions were not in the course of her employment.
-Reasoning per Dixon J at 380-382:
-Actions of barmaid were entirely unconnected with her employment; they were
rather acts of ‘passion and resentment’ not done in furtherance of D’s interests, not
under D’s authority, nor in consequence of anything that she was employed to do.
-Actions of barmaid were not ones ‘to which the ostensible performance of his
master’s work gives occasion or which are committed under cover of the authority
the servant is held out as possessing or of the position in which he is placed as a
representative of his master.
Mohamud v Wm Morrison Supermarkets plc (UKSC, 2016)
Facts: employee was serving at the sales counter of a petrol station when the
plaintiff, a customer, made a request. Employee responded aggressively, asked
plaintiff to leave, and then physically attacked plaintiff when plaintiff left.
Employer’s supervisor tried unsuccessfully to stop employee.
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Application of principles in Lister v Hesley Hall Ltd (HoL, 2002): i.e., ‘fair and just’
test re sufficient connection, which is different to ‘relevant approach’ by HCA.
In Lister v Hesley Hall Ltd, prior judgements had been found that sexual abuse by
employees of others could not be seen as in the course of their employment,
precluding recovery from the employer. This was overruled in Lister and the House
of Lords established that the “relative closeness” connecting the tort and the nature
of an individual’s employment established liability.
Majority in HCA in Prince Alfred College at [72], [83] said that its ‘relevant
approach’ was not satisfied by the reasoning in Mohamud :
-because ‘the role assigned to the employee in that case did not provide the
occasion for the wrongful acts which the employee committed outside the kiosk on
the forecourt of the petrol station. What occurred after the victim left the kiosk was
relevantly unconnected with the employee’s employment.'
Held, employer not Vicariously Liable for acts of employee as they were outside
scope of his employment. However, on appeal, it was found that a new, broader test
of ‘representative capacity’ might be more relevant. This posed the question, was
Mr Khan (Respondant) acting within the capacity of a representative of the
employer at the time of the assault?
The SC allowed the appeal and held Morrisons Vicariously liable for Mr Khan’s
actions.
This changed the way VL was looked at. Previously VL was either a wrongful act by
an employee that was authorised by the master; or a wrongful and unauthorised
mode of performing an act that was authorised by the master.
Lister introduced the “close connection” test, which made courts decide whether the
act was so closely connected with their employment that it would be just to hold the
employer liable.
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TOPIC 1 DAMAGES AND
COMPENSATION SCHEMES
Nature of torts law
What is a tort?
- An actionable wrongful act, other than breach of contract, done intentionally,
negligently or in circumstances involving strict liability
- A defendant’s conduct will be deemed wrongful where a failure to act in
accordance with normative standards of behavior occasions an injury to the
plaintiffs interests
Remedies
- Main objective > obtain damages for loss suffered as a result of tortious conduct
- Law of compensation > who should bear responsibility for the injured party’s
loss: the injured person or the wrongdoer?
- The plaintiff must show not only that the injury causing conduct as legally
recognized as wrong, but the injury itself as of a kind recognized by the law of torts
and that it was not too remote
- Deterrence > infuses as it were, the quintessentially private law of torts with
public law principles and considerations
- Non judicial remedies: self-help remedy of abatement of nuisance, privilege of
reception of chattels and alternative dispute resolution
- Judicial remedies: damages, punishment, restitution, coercive relief by way of
injunction and specific performance
- Restitutionary remedies: based on rectifying the gain to the defendant
Law of torts protects the following interests in Australia:
 Our right to physical integrity
 Our right to freedom from serious and unreasonable interference with
mental integrity
 Our right to privacy
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 Our legal interest in freedom of movement
 Our right to use land, light, air, running water, the sea, and the shore of the
sea
 Our rights to free belief and opinion, religious and political
 Our right to free social and commercial exchange without economic or
physical duress
 Our rights to property
Tort reform
- During 2002 and 2003 the Australian States and Territories enacted legislation to
reform aspects of the law of negligence and damages assessment
Damages
- Significant legislative reform – Part VB and Part VBA of the Wrongs Act
- ‘caps’ and thresholds on damages
- Reforms N/A where ‘the fault concerned is an intentional act done with
intent to cause death or injury or that is sexual assault or other sexual
misconduct’: ss28c, 28LC
- Source of damages award is the common law NOT the Wrongs Act – the Act
merely modifies common law principles
Further changes 2015
- Following Adjusting the Balance: Inquiry into Aspects of the Wrongs Act 1958
(VCEC Report) which was made public on 1 September 2014
- Wrongs Amendment Act 2015 (Vic) amended Wrongs Act 1958 (Vic)
- Applies from 19 Nov 2015 to all proceedings, including proceedings already on
foot
Most significant changes to:

S28F: ‘cap’ on loss of earning capacity clarified

S28G: ‘cap’ on non-eco loss increased

S28id, 28IE ability to care for others head confirmed

S28LB: ‘threshold’ on non-eco loss lowered and clarified
DAMAGES FOR PERSONAL INJURY
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Nature of compensation in the law of torts
The nature of the common law process of recovering damages
Compensation is divided into private and public wrongs
Private wrongs > involve an infringement or privation of the private or civil rights
belonging to individuals, considered as individuals
Public wrongs > based on a breach and violation of public rights and duties which
affect the whole community
Aims of damages for tortious harms:
a) To deter tortious conduct or/ and
b) To compensate claimants for harm sustained as a result of the private
wrong
Rights and duties in the law of compensation
-
Rights and duties refer to interests protected by the law of torts
-
Primary rights and obligations > When the right is recognized, others are
under a corresponding obligation or duty not to infringe that right
-
IF obligation is breached and right is infringed -> cause of action (without
legal justification) -> result in an award of damages -> creates the right to
enforce the duty to pay judicially determined compensation
Obtaining personal injury compensation at common law
-
Bargaining process (out of court settlement): claimant does not belittle
symptoms of the injury and its adverse consequences; defendant tries their
utmost to find ways to reduce liability
-
IF settlement is not forthcoming, parties will serve each other (pleadings:
written statements of each party in which they identify issues of fact. Issues
arise for determination at trial, unless defendant admits to liability)
-
Pleadings determine range of evidence and extent of discoverable
documents and available interrogatories
The nature of proof in civil cases – ‘the balance of probabilities’ degree of proof
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-
Standard of proof: the required degree of persuasion for the fact finder to
find a fact. It is on the balance of probabilities
Section 140 Evidence Act 1995 (Cth):
1) In a civil proceeding, the court must find the case of a party proved if it is
satisfied that the case has been proved on the balance of probabilities
2) Without limiting the matters that the court may take into account in
deciding whether it is so satisfied, it is to take into account:
a) the nature of action or defense
b) the nature of the subject-matter of the proceeding
c) the gravity of the matters alleged
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 – If the probability of the
event having occurred is greater than it not having occurred, the occurrence
of the event is treated as certain.
Lump sum awards and structured settlements
- A court has no interest in what happens to the plaintiffs damages, it has a duty to
assess fair compensation for all the effects, physical, mental and financial, that the
defendant’s negligence has had on the plaintiff (Nominal Defendant v Gardikitois)
- Damages for ‘gratuitous attendant care services’ Griffiths v Kerkemeyer damages
- HOWEVER if damages are awarded as a lump sum, and the defendant’s negligence
has rendered the plaintiff unable to manage the money, the plaintiff unable to
manage the money, the plaintiff is entitled to recover for the costs of managing the
fund into which that lump sum is paid: Gray v Richards [2014] HCA 40
Once and for all rule
- Damages awarded ‘once and for all’
- Once the plaintiff has recovered damages for the wrongful injury, as a general rule
he/she will not be allowed to bring another action base on the same facts, even if
the injury develops into a much more serious condition
2 consequences:
a) Lump sum awards: can not be varied
- Fetter v Beal (1701)
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- Gilchrist v The Estate of the Late Sara Alexander Taylor (2004)
b) Courts must make predictions about the plaintiff’s future health,
employment, etc
- Vicissitudes of life: Wynn v NSW IMC
Section 28N Wrong Act - Structured settlements
- One way to remedy management issue of large compensation awards is to invest
the lump sum in a guaranteed annuity fund
- Enables parties in litigation to enter a structured settlement agreement
- Defendant is required to pay all or part of the plaintiffs damages in the form of
periodic payments funded by an annuity or other agreed means rather than a
single lump sum (not taxed)
Advantages > financial management + future reassessment
Limitations > no power to order parties to enter into a structured settlement, ie
only applies if parties have agreed to structured settlement
Classification of damages
Terminology
Special damages > can be quantified with a degree of precision (past economic
loss)
General damages > cannot be quantified with a degree of precision (future
economic loss, non-economic loss)
Nominal damages > awarded for an infringement of a personal right, but where
no damages has occurred
-
Available for torts actionable per se such as trespass to land/battery
-
Often in the range of $5k to $15k
Contemptuous damages > a derisory amount for example $1 in recognition that
the claim is unmeritorious + P might be liable for costs
Compensatory damages
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- P to be put in the monetary position as if the injury had not been sustained
Todorovic v Waller (1980) 150 CLR 402 – fundamental principle
1. The objective of a damages award is to place the plaintiff in the position she
would have occupied the tort had not occurred
2. The court awards damages ‘once and forever’ in a lump sum
3. The court doesn’t car how the plaintiff spends the money, or even if the plaintiff
spends the money
4. The onus lies on the plaintiff to prove the loss or injury
Heads of compensatory damages
Economic (pecuniary) loss:
- medical and hospital expenses (including gratuitous care damages)
- loss of earning capacity
Non-economic (non-pecuniary) loss:
- pain and suffering
- loss of amenities/enjoyment
of life (s28LB)
- loss of expectation of life
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Economic loss 1: Medical and hospital expenses
Two categories:
1. Actual medical expenses
- Sharman v Evans (HCA, 1977) – medical expenses denied where the cost is very
great but the benefits are slight or speculative
Gibbs and Stephens JJ at [14]: ‘such expenses as the plaintiff may reasonably incur’
– ‘touchstone of reasonableness is… cost matched
- CF modern community attitudes to the disabled:
- Altmann v Dunning (1992)
- Diamond v Simpson (No.1) (2003)
Pre-existing illness
Malec v JC Hutton (HCA, 1990) (supplement), Deane, Gaudron and McHugh JJ:

Future and hypothetical events to be distinguished from past events (that
had happened before trial)

Balance of probabilities analysis (appropriate for past events) not
appropriate to future events that involve prediction/conjecture and are not
susceptible of exact proof

Damages must be discounted from the ‘degree of probability’ that the future
event would occur and the plaintiff would suffer the same loss independently
of the tortious accident due to a pre-existing medical condition

Future event only to be ignored where it is speculative (less than 1%)
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Applied to this case:
- no certainty that M’s pre-ex back condition would have led to the same psychiatric
condition; it could be said only that there was a chance this would occur
- damages for pain and suffering and for gratuitous care to be reduced by the
chance that a similar psychiatric condition would have developed from factors
unconnected with d’s negligence (the back injury)
2. Gratuitous care damages
- Where the plaintiff is receiving medical care from friends and family at least in
part in place of paying for the care from a commercial service provider, the plaintiff
might be entitled to an award of damages for gratuitous services and attendant
care
- Griffiths v Kerkemeyer (1977) 139 CLR 161

Plaintiff who was rendered quadriplegic by the defendant’s negligence
recovered damages that included past and future nursing and other services
provided gratuitously by his fiancé and family
- Kars v Kars (1996) 187 CLR 354

Irrelevant whether these services are provided gratuitously or whether the
provider of these services happens to be the tort feasor
- Under the gratuitous damages doctrine, once damages are awarded the claimant
is under no legal obligation to reimburse the altruistic carer’s for their services
Commonwealth and Victoria stipulate that damages for gratuitous services
are not to be awarded:
- unless the services are necessary or there is or was a reasonable need for the
services to be provided
- unless the need for the services arose solely out of the injury in relation to which
damages are awarded
- if the services are provided, or are to be provided for less than 6 hours per week,
and for less than 6 months
Section 28B
Attendant care services means any of the following –
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a)services of a domestic nature;
b)services relating to nursing;
c)services that aim to alleviate the consequences of an injury
Gratuitous attendant care services means attendant care services
a) that have or are to be provided by another person to a claimant; and
b) for which the claimant has not paid or is not liable to pay
Section 28IA (1)
Damages for gratuitous attendant care services not to be awarded unless:
a) a reasonable need for the services exists
b) the need arises solely because of the injury to which the damages relate and
c) the services would not have been provided ‘but for’ the injury
Woolworths v Lolar
Section 28IA (2)
No damages may be awarded to a claimant for gratuitous attendant care services if
the services are provided or are to be provided:
a) for less than 6 hours per week; and
b) for less than 6 months
Ambiguity
- On this view, s28IA (2) provides for alternative tests - ie P can recover by showing
either needs the services for > 6 hours per week or for > 6 months
- Courts must interpret words used by Parliament, not seek to divine the subjective
intention of Parliament
- Provision precludes P from an award, it does not provide for conditions for P to
qualify for an award
- ‘and’ is a conjunctive term; nothing in provision which displaces this ordinary and
natural meaning of the word
- Underlying policy is unfairness to P and P’s family and friends should the
voluntary support should go unrewarded when provided over and above what
could reasonably be expected on the basis of ordinary human bonds and affection
Harrison v Melhem (2008) 72 NSWLR 380
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- Court viewed s15(3) as imposing alternate thresholds; that is, the plaintiff can
recover gratuitous care damages by showing either that the care was provided for
more than six months; or that it was provided for more than six hours per week
Alcoa Portland Aluminum Pty Ltd v Victorian Work Cover Authority [2007] VSCA
210
- Justice Chernov of he Victoria Court of Appeal, ‘if the services provided to the
plaintiff… fell within para (a) but not para (b), he would nevertheless be entitled to
claim the amount as damages, subject to satisfying the requirement of sub-s(1)
Van Gervan v Fenton (HCA, 1992):
FACTS

P, after being injured in a MVA, was receiving GACS from his wife, who gave
up her job as a nurse’s aide to provide care for him on a FT basis. The trial
judge awarded GCD on the basis of her ‘lost’ income as a nurse’s aid into the
future.
HELD

HCA, held: reasonable value of services (ordinarily market value) to be
awarded, not income foregone. ‘Need’ as basis of claim, not actual cost to P
or to provider of GACS/GCD.
See now ‘cap’ in 28IB Wrongs Act:

Links the amount recoverable to average weekly Vic earnings

Where services >40 hours pw, GCD can not exceed the ‘average weekly
earnings’ of’ Vic full time workers

Where services <40 hours pw, GCD are pro-rated (one fortieth of ‘average
weekly earnings’), to get hourly rate)
Damages for loss of capacity to provide care for others
If the P, post-injury, is no longer able to care for others, is this recoverable
as a head of damages?
- At common law this head of damages (known as Sulivan v Gordon damages) not
available as a separate head of damages: CSR LTD v Eddy [2005]
But Vic Wrongs Act differs from the CL position and permits damages for
loss of ability to provide services to family members, but imposes
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limitations: S28ID
Section 28ID
No damages unless the court is satisfied that the care:
a) was provided to the claimants dependents, and
-
Defined in s28B as ‘any persons who are wholly, mainly or in part dependent
on the claimant at the time of the injury’
-
Not limited to persons whom P had a legal obligation to maintain: Amaca
Pty Ltd v Novek [2009] NSWCA 50, for example children, grandchildren
b) was being provided for at least 6 hours per week and
c) had been provided for at least 6 consecutive months before the injury (or there
was a reasonable expectation that they would have been)
- Seems clear from the wording of the provision that these are cumulative
provisions (cf s 28IAA (2))
Economic loss 2: Loss of earning capacity
- Difference between past loss of earnings (between injury and date of trial) and
loss of capacity to earn income into the future (from date of trial to retirement
Calculating this by multiplying P’s pre accident or ‘without injury’ earnings
x weeks left P’s pre accident working life
- If negligence shortened life expectancy, P awarded LOEC for the lost years:
Sharman v Evans, for example damages calculated on the basis of pre-accident life
expectancy
- From these ‘without injury’ or pre injury earnings deduct ‘with injury’ or post
injury earnings
- But ‘cap’ on award of loss of earning capacity: s28F (2)
S28F (2) of the Wrongs Act (as amended in 2015)

The maximum amount of damages that may be awarded for each week of
the period of loss of earnings is an amount that is 3 times the amount of
average weekly earnings at the date of the award

‘Amount of average weekly earnings at the date of the award’ = ‘average
weekly total earnings of all employees in Victoria’: s28F (3)(a)
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Former s28F(2): Tuohey v Freemasons Hospital [2012] VSCA 80
- Former wording of s28F (2) ambiguous:

In the case of any ward to which this section applies, the court is to
disregard the amount (if any) by which the claimant’s gross weekly earnings
would (but for the death or injury) have exceeded an amount that is 3 times
the amount of average weekly earnings at the date of the award
Considered in Tuohey v Freemasons Hospital [2012] VSC 80

Before accident P earned $10,548.52 per week. After accident P earned
$6,442 per week: Difference between ‘without injury earnings’ and ‘with
injury earnings’ was $4,106 per week. Cap at the time was $2,836

P argued cap applies to the difference between ‘without injury’ and ‘with
injury’ earnings, so entitled to $2,836

D argued cap applies to ‘without injury’ earnings and then must deduct
‘with injury earnings’ so that P entitled to nothing
Court of Appeal

Accepted D’s argument

Wording of s28F clear – reference to ‘gross weekly earnings’ a reference to
‘without injury earnings’

S28F cap to be applied to the first component of the damages assessment,
the ‘without injury earnings’

From the capped amount is to be deducted the ‘with injury’ earnings

P gets nothing if ‘with injury’ earnings exceeds capped amount
Caps and threshold
Wrongs Act enacts caps and thresholds
Reforms N/A where ‘the fault concerned is an intentional act done with intent to
cause death or injury or that is sexual assault or other sexual misconduct’
ss28c(a), 28LC (2)(a)

‘Cap’ for non economic loss (NEL) in s28G Wrongs Act is $577,050 (as Feb
2015) subject to annual indexation (s28H)

‘Threshold’ test in Part VBA Wrongs Act: NEL only recoverable where P has
sustained a ‘significant injury: s28LE
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Adjustments/Discounts
From this calculation of LOEC, certain adjustments/discounts must be made:
1. Tax must be deducted: s28A
2. Deduct any ‘saved’ items of expenditure
-
Items that were directly related to the job, for example uniforms, tools, trade
magazines, equipment, no longer needed to be expended
-
Child care savings not deducted
Wynn v NSW IMC (HCA, 1995)
3. Discount for the ‘vicissitudes of life’
- This varies and depends on individual P
- Usual discount range varies between 5-20% for example Wynn v NSW IMC
- No deduction for insurance or superannuation payouts, or for government
benefits or Medicare payments
4. Discount to present value
Future economic losses (medical expenses, loss of earning capacity)
discounted to recognize P can invest lump sum now, not in the future and so
earn interest from now:
- 5% discount rate: s28I Wrongs Act (made because the payment is made
in a lump sum)
- 3% discount rate at common law
Economic loss 3: Miscellaneous financial costs
Gray v Richards [2014] HCA 40
- High Court confirmed that where the defendant’s tort has impaired the plaintiff’s
intellectual capacity to manage a lump sum of damages award so as to put the
plaintiff in need of assistance in managing that sum, the cost of obtaining that
assistance is recoverable
- The cost of managing the fund is recoverable as the need for this cost is created by
the tort
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- Ultimate question: whether the arrangement entered into between the plaintiff
and manager of the fund is reasonable
Non-economic loss
Defined in Wrongs Act 1958 (Vic) at ss28B and 28LB as:
a) pain and suffering
- Compensation for physical pain and psychological consequences (worry,
frustration, anxiety)
- Completely subjective
- Skelton v Collins
b) loss of amenities/enjoyment of life
- Loss of amenities = loss of enjoyment of life
- Compensation for disability/impairment of P’s ability to enjoy life
- Largely subjective: modest sum if P is permanently unconscious (for example
$10,000 - $20,000
- Skelton v Collins
c) loss of expectation of life
- Consolation or solace for P for shortened life
- Modest awards ($10,000 - $15,000)
- Not included in Wrongs Act definition of NEL, so query whether this head of
damages still available for negligence claims to which Wrongs Act applies (for
example if it is an exhaustive code)
Simpson v Diamond [2001] NSWSC 1048
Loss of earnings (72,980)
Loss of future earning capacity (809,869)
Non-economic (564,175)
Medical expenses (1,122,957)
Future needs (2,029,240)
Gratuitous care (6,983,700)
TOTAL (inclu interest) (14,900,000)
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What is a significant injury? S28LF
- Must be assessed as a ‘degree of impairment’ of the whole person resulting from
the injury

Assessment must be by an approved medical practitioner or by a Medical
Panel: s28LF

Determined by reference to AMA Guides 4th edition: ss28LH, 28LI
- Impairment must be a ‘permanent impairment’: s28LB

For example sprained limb that fully heals, not a permanent impairment
Must satisfy the ‘threshold level’ defined in s28LB as a) in the case of injury (other than psychiatric injury or special injury), impairment
of more than 5 percent (no change from pre-2015)
b) in the case of psychiatric injury, impairment of 10 per cent or more (Pre-2015)
this was ‘more than 10%’
c) in the case of spinal injury, impairment of 5 per cent or more (no specific
reference to spinal injuries pre-2015)
- Loss of a foetus
- Psychiatric injury arising from loss of a child
- Loss of a breast
N/A to intentional act done with intent to cause harm, or sexual
assault/misconduct: ss28C (a), 28LC (2)(a)
‘Significant’ v ‘Not-Significant’ injuries
Examples of ‘not significant injuries:
- Loss of taste (3%)
- Loss of smell (3%)
- Loss of little finger or big toe (5%)
Examples of ‘significant’ injuries
- Sprained wrist, minor loss or motion (6%)
- Soft tissue back injury (12%)
- Moderation dislocation of shoulder (15%)
- Loss of sight in one eye (28%)
- Loss of one arm (60%)
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- Quadriplegic who needs a ventilator (100%)
Assessment of impairment ‘objective’
- Degree of impairment assessed objectively – a medical determination of loss of
physical and/or psychiatric function
- When determining extent of physical impairment, ‘psychiatric symptoms arising
as a consequence of, or secondary to, a physical injury’ not to be taken into account:
s28LJ
NON COMPENSATORY DAMAGES
Exemplary or punitive damages
- Aggravated damages are compensatory (to compensate for the manner in which
the tort was committed, for example to hurt to feelings, humiliation)
 Awarded where defendant’s wrong has been committed in a ‘high handed,
malicious, insulting or oppressive way’
 Given to compensate plaintiff when harm done to him by a wrongful act was
aggravated by the manner in which the act was done – Uren v John Fairfax
& Sons Pty Ltd
- Exemplary/punitive damages are ‘punitive’ (not compensatory) for D’s
contumelious disregard of P’s rights
 Courts have the power to award exemplary or punitive damages
 Can be awarded in addition to compensatory damages; the award of both
heads of damages in the same case does not amount to double punishment –
NSW v Ibbett [2006] HCA
 Intended to punish defendant, serve one or more of the objects of
punishment (moral retribution or deterrence) - Uren v John Fairfax & Sons
Pty Ltd
 Awarded for – trespass to the person, trespass to land, conversion, breach of
contract where the conduct constituting the breach is also a tort for which
punitive damages are available, breach of fiduciary duty, passing off and
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copyright infringements
Actions arising on death
Where the defendant’s wrongdoing has resulted in the death of the victim, two
possible claims can be made:
2 claims available:
1. Claim by dependents for loss of financial support under Pt III Wrongs Act
(dependent’s claim); and
2. Claim by estate under the Administration and Probate Act (survival of
causes of action claim)
Both claims are available in conjunction – estate claim relates to past economic
losses, dependent’s claim relates to future losses
1. Dependent’s claim
s20 Wrongs Act 1958 (Vic)
Action for wrongful death should commence within 6 years after the death of the
deceased person, or within 6 years from the time the claimants first know that the
deceased persons death was caused by an injury in the form of a disease or disorder,
where the deceased did not know before he death:
a) that he or she had suffered injury; or
b) that the injury was caused by the act or omission of some person
s16 Wrongs Act 1958 (Vic)
Claimant must show:
a) The death was ‘caused by a wrongful act, neglect or default’

Haber v Walker (1963) (supplement): words of s16 only require establishing
causation, not ‘the elements of negligence, (ie DOC or reasonable
foreseeability.’

Conflicting authority whether the death must have been reasonably
foreseeable. Majority in Harber v Walker said no;
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- In this case deceased suffered severe brain damage – court interpreted the
requirement as relating strictly to causation or ‘materially’ contributed to
by the defendant, without the limitation that the death be reasonably
foreseeable
but see Lisle v Brice [2002] 2 Qd R 168
b) The deceased could have maintained a cause of action for damages had he/she
not died, and
c) The claimant was wholly or partly dependent on the deceased or would have
been but for the death

s17 (2) WA dependents means such persons as were wholly mainly or in
part dependent on the person deceased at the time of his death or who
would but for the incapacity due to the injury which led to the death have
been so dependent
- Must be a ‘financial dependency’ not merely a person relationship
- Ultimately, question is whether the claimant would reasonably expect a
financial benefit from the relationship
Heads of damages
Dependent’s claim for:
A) Loss of expectation of financial support
-
What was the ‘reasonable expectation’ of financial support from the
deceased; ‘loss of chance’ of financial support recoverable
-
A vicissitudes of life analysis applies – De Sales v Ingrilli [2002] HCA 52 (5%
rate upheld against 20% rate found by WASCFC)
-
No separate discount for prospects of remarriage: De Sales v Ingrilli – now
enacted in s19 (2) Wrongs Act in 2004 following that case
-
Ultimately need to work out how much of that future loss of income would
have deceased would have spent on personal items
-
Remember cap in s28F (2) still applies –
Taylor v The Owners Strata Plan No 11564 [2014] HCA 9
FACTS
- Plaintiff was the widow of a highly paid surveyor who died as a result of
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injuries sustained by the negligence of the defendant.
ISSUE
- Whether s12 (2) required that the widow’s damages be limited by
disregarding her earnings (as the claimant) to the extent they exceeded 3
times average weekly earnings, or by disregarding the deceased’s earnings
to the extent they exceeded this amount.
- Section 12(2) (Like s28F(2)) explicitly referred to the claimants gross
weekly earnings as the relevant limiting amount.
HELD
- HC – phrase ‘claimants gross weekly earnings’ in the case of an award of
damages under s12 1 c can be read as referring to the gross weekly earnings
of the deceased
- Amended wording of s28F operates differently so that a high earning
plaintiff’s pre-injury earnings will no longer disqualify her from economic
loss damages altogether but merely cap this amount at 3 times the amount
of average weekly earnings at the data of the award
B) Loss of domestic services of spouse/parent
-
Not relevant whether the widow/ widower has spent money to replace the
services: Nguyen v Nguyen (1990)
-
BUT deduction to be made from this sum for provision of services by a new
partner or carer
-
s19a: Care must have been provided for at least 6 hours per week and for at
least 6 consecutive months before the death or injury that caused the death
-
s19b: limitation to average weekly earnings (or pro-rated)
- No ‘solatium’
- Discount rate of 5% applied to future economic losses, including loss of domestic
services
Deductions and considerations
- Must make a deduction for:

Amounts deceased would have spent on private needs

Benefits the claimant received under the deceased’s will, and

Contributory negligence by the claimant (not the deceased)
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- What is the position where the deceased is a child?
2. Survival of causes of action claim
Plaintiff
- At Common law, most tortious causes of action survive the death of either the P or
D: Fitch v Hyde- Cates (1982) 150 CLR 482, 487.
HC held – damages were recoverable for loss of capacity to earn in relation to the
years during which the deceased would have worked had he or she not died
- The estate via its executor may proceed with the cause of action the deceased
would have had had he/she lived
- Applies in cases where the defendants wrongful conduct cause plaintiffs injury and
death
Defendant
- Survival of action will depend on whether the cause of action arose not earlier
than 6 months before the defendant’s death or 12 months
 Administration and Probate Act 1958 – s29(3)(b)(i) and s29 (3A) the action
has to be commenced within ‘the period within which those proceedings
might have been commenced against him had he lived, namely 3 years –
court has to discretion to vary limit
Work Cover Queensland v Amaca Pty Ltd
- HC confirmed that the statutory provisions providing for survival of the cause of
action do not create a new cause of action in favor of the deceased estate. The
estate is merely continuing the cause of action that the deceased person had before
the death.
Section 29 of the Administration and Probate Act 1958 (Vic) limits this action: page
102 tb
- Applies whether the deceased died as a result of the tort of for unrelated reasons
-
Where deceased died as a result of the tort, executor can only recover:
a) Economic loss (medical etc expenses and loss of earning capacity) between date
of injury and death (s29 (2)(c )(ii)); and
- includes gratuitous care, subject to thresholds and caps
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- future economic losses not recoverable (these can be recovered only on the
dependents claim
b) Funeral expenses: s29 (2) (c )(i)
- Non-economic losses recoverable
- Non-economic losses recoverable where deceased died for reasons unrelated to the
tort: s29 (3)
- P’s claim also survives the death of the defendant
No cause of action by employer for deceased employee:
Barclay v Penberthy [2012] HCA 40
FACTS
- 5 employees of the plaintiff company, Nautronix (Holdings) were passengers on a
plane chartered by Nautronix. The plane crashed and two of the employees died
and the other three were injured. Nautronix commenced proceedings against the
pilot, his employer and an aeronautical engineer for damages relating to the death
or injury of its employees (the surviving passengers and spouses of the deceased
passengers also sued).
HELD
- A majority of the HC held that Nautronix could not recover damages for the death
of its employees due to the ruling established in Baker v Bolton that at common law
a person cannot recover damages for the death of another. The surviving spouses
could claim as dependents under the Lord Campbell’s Act (WRONGS ACT) however
an employer’s entitlements are governed by common law and common law did not
permit such a claim.
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TOPIC 5 – INTRODUCTION TO
THE LAW OF NEGLIGENCE DUTY
OF CARE
LAW OF NEGLIGENCE DUTY OF CARE
Introduction
- Negligence is a tort
- No need for directness/intention – action is harm/damage
- Limits to negligence claims. Plaintiff must establish that the defendant owed her a
duty to take reasonable care to avoid injury to her. The scope or content of that
duty will determine the extent of the duty of care.
Recognizable damage
- In the tort of negligence, harm/damage is the ‘gist’ of the action
- P must have suffered a recognizable form of damage: Mahoney v Kruschich
(Demolitions) Pty Ltd (HCA, 1985):
 Personal injury
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 Property damage
 Economic loss
 Psychiatric condition
- Transient emotions (for example stress, anxiety, fear) or inconvenience are not
compensable forms of damage: Jaensch v Coffey (HCA, 1984)
- Contrast ‘intentional torts’
 Battery, assault, FI based on Trespass (directness, intention) – gist of action
is interference
 Negligence derived from action on the case (no need for directness or
intention) – gist of action is harm/damage
Aims of negligence
Distributive justice
- To distribute society’s resources fairly
- Parliament report reforms of 2002-3 to Wrongs Act 1958 place legislative checks
and balances on liability for and damages in negligence
Corrective justice
- The idea that imposing liability rectifies the injustice had done by D to P, for
example paying P damages to put P pack in position as if tort had not occurred
- Judges
ELEMENTS
1. Duty of care
D must owe a duty to P not to create the risk of injury that occurred
2. Breach of duty
D must have fallen below the standard of care expected of a reasonable person
engaged in that activity
3. Causation
The breach must have caused the injury to P
4. Remoteness of damage
The injury caused by the breach must have been reasonably foreseeable
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- D must plead and establish any available defense, such as contributory negligence
or voluntary assumption of risk
Legislative reform
- Legislatures, following the IPP Report in 2002, across Australia enacted cooperative legislative and fairly uniform amendments. These amendments took the
form of:
 Pt VB Personal injury damages
 Pt X on general negligence principles
 Pt XI that sets out principles relevant to claims for psychiatric illness (ss67
-78)
 Pt XII that sets out principles relevant to claims against public authorities
(ss79-87)
- What is the effect of these Wrongs Act provisions on the common law?
 These new parts, Pts X, XI, and XII, ‘apply to any claim for damages resulting
from negligence, regardless of whether the claim is brought in tort, in
contract, under statute or otherwise’: ss44, 68, 80
 Apply whenever the conduct was negligent
Duty of care
- D owes a duty to P not to create the risk of injury
- ISSUE: When does D owe a DOC?
Historical overview
Duty of care originally restricted to:
Certain legally recognized relationships, for example:
- Persons in common callings and their clients
- Public officers and members of the public
- Occupier and invitee (Heaven v Pender (HC UK QBD, 1882-3)
- Cases where there was privity of contract between the parties Winterbottom v
Wright (UK, 1842)
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Donoghue v Stevenson (HL, 1932)
- D.O.C was not limited to particular relationships, but was a generalized principle
which could be applicable across the range of human interactions/relationships,
and also it was not dependent on privity of contract b/w parties
Neighbor principle:
1. Existence of DOC predicated on reasonable foreseeability: reasonable care must
be taken to avoid acts or omissions that you can reasonably foresee will injury your
neighbor
2. Who is my neighbor? A person who is closely and directly affected by my act that
I ought reasonably to have them in contemplation when engaging in that act
Modern requirements of a duty of care:
1. Established categories of duty of care
If a case was one in which there was an established category of duty of care, you
would consider:
a) reasonable foreseeability; and
b) whether the case falls within the established category, by 1. Identifying the relationship;
2. Citing the authority for the established category of duty of care; and
3. Establishing that the facts fall within the scope of the duty (If no an issue state
this) and then move on to the next element in negligence
Vast majority of cases fall into recognized categories of duty of care, including:
a) Manufacturer of products and consumers
- Donoghue v Stevenson: Court decided a consumer made ill by contaminated drink
could sue manufacturer, even though consumer did not have a contract
b) Road users
- Chapman v Hearse: Anyone travelling in cars and buses is usually owed a duty of
care by those who drive vehicles (even pedestrians)
- Imbree v McNeilly: Duty applies to learner drivers in favor of their instructors
c) Employer and Employee
- McLean v Tedman, Hamilton v NuRoof: Employers owe their employees a duty to
provide a safe system of work and a safe place to work
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d) School and Pupil
- Geyer v Downs: Relating to supervision and the condition of the premises
e) Doctor and Patient
- Rogers v Whitaker: Relating to advice and treatment
f) Occupier of Premises and Entrant (in relation to the state of the
premises)
- Occupiers of commercial premises owe a duty of care to entrants onto the
premises
- Ensures that the premises ae reasonably safe and free from slipping hazards
- Australian Safeway Stores Pty Ltd v Zaluzna (Wrongs Act 1958 (VIC) Part IIA: A
person bashed by a group of men in the car park of a shopping center late at night
after the center had been closed was not owed a duty of care by the occupier of the
center
- Modbury Triangle Shopping Center Pty Ltd v Anzil: The attack was outside the
scope of the duty
g) Local government authority and facility/park/ beach users
Wyong Shire Council v Shirt
Formulated test for breach of duty
- Whether a reasonable man in the defendant’s position would have foreseen that
his conduct involved; a risk of injury to the plaintiff; or to a class of persons
including the plaintiff
- A risk which is not far fetched or fanciful is real and therefore foreseeable
- Small Risk A risk might be small but still foreseeable
- Nagle v Rottnest Island Authority
h) Builders/engineers/inspectors and subsequent purchasers
- Sutherland Shire Council v Heyman
- Bryan v Maloney
- Brookfield Multiplex Ltd v Owners Corporation Starta Plan
i) Solicitor and client
- Hill v Van Erp: Relating to advice and transactional work
j) Landlord and tenant
- Northern Sandblasting Pty Ltd v Harris (HCA, 1997);
k) Providers of recreational services and customers
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- Woods v Multi-Sport Holdings
2. Detailed analysis of duty of care
- If a person sustains bodily injury or property damages a result of a direct
impact from the positive act of another, establishing a duty of care on the person
who caused the impact will usually be uncontroversial
- Where arm consists of psychiatric injury (Wrongs Act 1958) or pure economic
loss, task is difficult
- Pure omission (failure to act in circumstances where the only connection to
harm is omission) and defenses: more detailed analysis of duty of care is require
Debates on these issues reflect:
1) primacy of contract
2) degree to which courts should regulate conduct
3) prevailing social values of time and judges involved
Reasonable foreseeability of the plaintiff as a person or member of a class to whom
the duty of care was owned
Factual duty question: whether damage to someone in the P’s position was a
reasonably foreseeable consequence of the D’s negligence; for example reasonable
foreseeability of harm: Jaensch v Coffey (HCA, 1984):
- Reasonable foreseeability needs to be shown in all cases of negligence
- In most negligence cases, this of itself will determine whether there is a duty of
care
- Could D reasonably foresee that a negligent performance of the relevant activity
would create a risk of injury to P or to a class of persons including P? Jaensch v
Coffey (HCA, 1984)
- D need not have been able to foresee the precise sequence of events that led to P’s
injuries – enough that could RF ‘a consequence of the same general character’ as
that which occurred – Chapman v Hearse
- Sydney Water Corporation Turano [2009] HCA 42 - CJ quoted Tame v NSW:
question of whether it is reasonable to require a person to have in contemplation
the risk of injury that has eventuated
- Cases of physical and psychiatric injury (Tame v New South Wales (200) 211 CLR
317): reasonable foresight of risk of harm creates relationship of legal
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neighborhood and proximity,
- ‘nearness or closeness’ – as long as foreseeability of an uninterrupted chain of
events between the defendant’s negligence and the plaintiffs injury can be
established
- Cole Sth Tweed Heads Rugby Club – ‘duty that must be found to have been broken
is a duty to take reasonable care to avoid what did happen, not to avoid damage…’
The unforeseeable P
- Palsgraf v Long Island RR Co – defendant owes a duty of care not to injure one
person does not mean that the duty of care is owed equally to another;
- if the harm is not willful, he must show that the act as to him had the possibilities
of danger so many and so apparent as to entitle him to be protected against the
doing of it..
- Bale v Seltsam Pty Ltd [1996] QCA 288
CSR Limited v Amaca Pty Ltd [2009] NSWCA 338
Decision
- Majority was not satisfied that at the time of the plaintiff’s exposure (1970 and
1971) the defendant’s could have foreseen any risk to persons (child or adult) from
being exposed to asbestos dust under circumstances similar to the plaintiff
- Accepted medical understanding at the relevant time was that asbestos related
diseases required extensive and intensive exposure to asbestos dust
- CF Jones v Southern Grampians Shire Council [2012] VSC 485
Sydney Water Corporation v Turano [2009] HCA 42
Facts
- Tree fell on the plaintiff’s husband and killed him and injured their children Tree
had fallen because its root system had been compromised due to a water main
installed by the Sydney water corporation
Decision
- No duty of care by the council to road users. For a duty of care to arise, it is
necessary to adduce evidence that when the main was introduced, it was
foreseeable that it would compromise the roots of the tree. No evidence it was
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foreseeable by Sydney Water Corporation that it would undermine integrity of roots
by nearby trees.
Salient features/control factors
- The courts weigh a number of ‘features’ or ‘factors’ to determine duty question
and therefore whether liability should be imposed
- Include positive features (relationship factors such as control, knowledge of risk,
vulnerability of P) and normative features (at least some issues of policy)
Where:
a) does not fall within an established category, or
b) scope of duty of care is in issue, or
c) policy considerations arise, then
These include claims for:
- Psychiatric injury
- Injury caused by an omission
- Liability of D for serving alcohol
- Cases where public policy immunity applies for example advocate immunity for
court work
- Economic loss
- Injury caused by an independent contractor
Demise of proximity and rise of an incremental and multi-factorial salient
features approach
- Courts now adopt an incremental, multi-factorial approach in determining
whether a duty of care should be imposed in these special duty situations – Sullivan
v Moody
- Proximity was a concept previously used in Jaensch v Coffey (HCA, 1984)
- But it is not a legal concept in its own right and should not be used as a
determinant of a duty of care
- Hill v Van Erp
- Sullivan v Moody
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What are the salient features/control factors?
- They continue to be debated by courts and commentators
- In the novel cases, courts evaluate a number of factors to determine whether a
duty of care should be imposed.
 Control of activity by D (Crimmins v SIFC)
 Vulnerability of P (inability to take steps to protect self) (Crimmins v SIFC)
 Knowledge by D of the risk (Crimmins v SIFC)
 P’s individual autonomy and personal responsibility (Kirkland- Veenstra v
Stuart); (CAL No.14 v Scott)
 Intersection with other areas of law (Sullivan v Moody)
 The need to preserve the coherency of the law (Sullivan v Moody); (CAL
No.14 v Scott)
 Indeterminacy of liability (Sulivan v Moody); Harriton v Stephens)
 Whether imposition of liability would lead to defensive practices (Sullivan v
Moody; Tame v New South Wales)
The scope of duty of care
The scope of the duty of care and issues of personal responsibility
- Questions of personal autonomy and responsibility will be relevant factors
determining whether a duty of care exists
- No general duty at common law owed to customers to monitor or limit service of
alcohol or to ensure their safety once they leave the premises
- Where the case does not fall within an established category, it will likewise be
necessary to examine the salient features of the relationship to ascertain the scope
and content of the duty: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA
11
- Cf a duty to ensure physical premises safe
 Cole v South Tweed Rugby Football Club
- a healthy woman of mature age, voluntarily and in full possession of her
faculties embarked on a drinking spree… imposing a duty to provide care
would infringe the principle of autonomy
 C.A.L No.14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA HCA 47
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- Balancing pleasures of drinking against the risks a matter of personal
responsibility of the drinker. Matter of personal autonomy
- CF a vulnerable person under the control of the defendant
- Legal coherence with other common law torts and legislative responsibilities
- Difficulty in giving practical content to duty
- Same principles should apply a fortiori to private hosts
Stuart v Kirkland-Veenstra
- An imposition of such duty would make a significant departure from an
underlying value of the common law, which gives primacy to personal autonomy
- Reeves v Commissioner of Metropolitan Police ‘on the whole person are entitled to
act as they please, even if this will inevitably lead to their own death or injury’
Policy considerations: Immunity from liability
- No duty of care where inconsistent with public policy considerations
Examples
- Legal advocates immune from liability for negligent conduct of case
- Giannerelli v Wraith
- D’Orta – Ekenaike v Victoria Legal Aid
- Finality of litigation
- Confidence in the administration of justice
- Applies to the conduct of civil proceedings
- Goddard Elliot v Fritsch [2012] VSC 87 – immunity applies to negligence that
occurred in the course of work leading to decisions about, or intimately connected
with, the conduct of a case in court
- Child protection agencies investigating possible sexual abuse
- Sullivan v Moody
 Liability would be incompatible with statutory regime imposing duty to
investigate
 Proper and effective investigations would be impaired as would result in
defensive practices
 Best interests of child inherently likely to conflict with interests of parent
 Liability also incompatible with other areas of the common law: interferes
with settled principles of defamation law
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 Indeterminacy of claim – large range of potential suspects
Other immunity categories
- Child protection agencies also immune to claims from Child X (minors) v
Bedfordshire CC
- Police force immune from liability when investigating a crime
- Tame v NSW
 Interests of the suspect would inevitably collide with the statutory duty to
investigate the crime and the wider public interest in thorough investigation
of the crime
 Unlikely that police officer would owe a duty of care to a person whose
conduct is under investigation
 As a general rule police officers have immunity from suit in negligence when
acting in an investigative role
- Hill v Chief Constable of West Yorkshire: no duty of care owed to members of the
public to apprehend criminals
 Would lead to the exercise of functions being carried on in a detrimentally
defensive frame of mind
 Would interfere with policy decisions regarding the allocation of resources
 Indeterminacy of claim – large range of potential victims
- But not a blanket immunity; does not extend to all aspects of police operations,
where exercising a specific power for example arrests – State of Victoria v Richards
[2010] VSCA 113
Other immunities:
 Armed forces when engaged in energy operations in time of war do not owe
a duty of care to the public (or to protect their members from negligence by
a colleague) when engaged in operations against the enemy in times of
war: Shaw Savill & Albion Co Ltd v The Commonwealth (1940) 66 CLR 3444
 Wrongful life claims
 Good Samaritan and volunteer immunity
 Extended to barristers and solicitors ‘when they perform work in court or
out of court leading to decisions about or intimately connected with, the
conduct of the case in court’
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 The government is immune from liability when exercising discretionary,
policy making functions: Graham Barclay Oysters Pty Ltd v Ryan [2002]
HCA 54
- Modern tendency: except where compelling policy considerations, ordinary
negligence principles apply
 Liability of highway authorities – Brodie v Singleton SC
 Liability of landlords to occupants – Jones v Barlett (2000)
Special kinds of duties and liabilities
Wrongful birth claims
- Where baby is born disabled, courts award additional costs of raising a disabled
child
- Parkinson v St James and Seacroft University Hospital NHS Trust
- More contentious has been whether
- More contentious has been whether court should award the financial costs of
raising a healthy child
- Cattanach v Melchior (2003) Majority concluded that such a claim is available
McHugh, Gummow, Kirby and Callinan JJ:
- The ‘legal wrong’ is not the birth of the child, but the negligence of the medical
practitioner; the ‘legal harm’ is the economic loss
- Normal negligence principles would permit recovery
- Dr has assumed responsibility to prevent conception & should be liable for all
causally related losses
- Birth of a healthy child should not be characterised as a loss
- Parental autonomy to determine number of children
- NB: no reduction for emotional benefits of having a child (cf claim for loss of
enjoyment of life)
- Abrogated by legislation in SA, QLD, and NSW.
- House of Lords refused to follow this line of authority in Rees v Darlington
Memorial Hospital NHS Trust: inappropriate to view children as a financial
liability or legal wrong; parental benefits impossible to quantify
Wrongful life claims
- Prohibited
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- Medical practitioner does not cause the disability; the medical practitioner merely
deprived parents of the opportunity to prevent or terminate the pregnancy –
Harriton v Stephens; Waller v James
Crennan J:
- No legally recognizable loss; not possible to compare value of a life with
disabilities with non-existence
- Community values about sanctity of life
- No significant injustice: parents have the right to bring a claim
Rees v Darlington Memorial Hospital NHS Trust [2004]1 AC 3
- Impossible to quantify the benefits of parenthood and inappropriate to regard a
child solely as a financial liability
Liability of landlords to occupants
- Historical position – Cavalier v Pope (no duty)
- Modern position: general negligence principles apply… landlords of defective or
dangerous residential premises owe a duty of care to the tenants and their
households - Northern Sandblasting Pty Ltd v Harris, Jones v Barlett – landlords
should only be considered occupiers if they had control of the premises before the
commencement of the tenancy… as landlords they must arrange for an assessment
of premises for known or apparent dangerous defects
- LL must exercise reasonable care to ensure rental premises are safe, no guarantee
of safety: Neindorf v Junkovic
- Liability limited to defects – a condition in the premises rendering them unsafe for
ordinary use… landlord was not liable in contract because the wife was not a party
to the contract - Cavlier v Pope
- LL is under a duty to remedy defects that are known, or should have been detected
on a reasonable inspection by LL or agent. However, the landlord is not obliged to
hire independent experts, such as electricians and builders to inspect the premises
for defects: Jones v Barlett
- LL is not liable for a negligent contractor, provided contractor is ostensibly
qualified
Occupiers liability to entrants
- Occupiers under a duty to take reasonable steps to ensure the premises are
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reasonably free from defects: Safeway Stores v Zalusna
- No risk free dwelling houses: Thompson v Woolworths
- No duty to remove a minor defect commonly encountered that should be obvious –
Neindorf v Junkovic
- No duty re conduct of 3Ps: Modbury Triangle (criminal conduct), Adeels palace
(liquor laws)
- Duty of care owed to entrants on public land is a duty owed to them as a class and
not to each of them as individuals, and is not to be measured by reference to the
personal characteristics of individual members of that class (Mulligan v Coffs
Harbor City Council [2005] HCA 63)
Duty of parents to children and the rights of the unborn child
- Parents not immune from liability in tort
 Hahn v Conley (1971)
- Australia law does not recognize any principle of parent immunity in tort
 Tweed SC v Carly Eden Howarth (2009)
- Foetus has no standing to sue
 AG (Qld) v T
- Once child is born, a cause of action available against a third party
tortfeasor
- Foetus has no right of its own until it is born and has a separate existence
from its mother
 Watt v Rama
- Still contentious whether child can sue mother for in utero injuries
 Lynch v Lynch vs Dobson) (litigation guardian of) v Dobson (NSWCA,1991)
- mother has a duty of care not to cause injury to her fetus
- child was born disabled as a result of the car accident she had whilst
pregnant
- DOC does not apply in Australia
 Harrison v Stephens [2006] HCA 15
- If there be a cause of action available to the child, the blood relationship of
the defendant to the child will not constitute a bar to the maintenance by
the child of the appropriate proceeding to enforce the cause of action
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TOPIC 6 – BREACH OF DUTY OF
CARE
BREACH OF DUTY OF CARE
Fundamental propositions
- For the element of breach, P must establish that D has breached the duty of care
owed to P, for example P must establish that D has fallen below the standard of care
reasonably expected of the reasonable D engaging in the activity in question
- The touchstone of liability is that of ‘reasonableness’
Adeels Palace Pty Ltd v Moubarak (HCA, 2009)
- D not required to guarantee P will not be harmed, but must take reasonable care
to ensure harm does not occur
Derrick v Cheung (HCA, 2001)
- D was driving on a busy rd, 50km/h, within the limit of 60km/h
- Toddler of 2 years approached car park, swerved and slammed the breaks of the
vehicle, hit the child
- D was negligent, had she been travelling 20-30km/h slower, would have been able
to break instantly
HCA
- This was unreasonable to make drivers drive less than 40km/h on busy roads to
ensure foreseeable but unlikely events don’t occur
S55 Wrongs Act
- The liability of D is to be judged prospectively, not retrospectively with the benefit
of hindsight
Vairy v Wyong SC
- V sustained serious injuries when he fell off a balcony and hit his head
- council failed to warn of the risk that materialized, especially since the person
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who fell and became a paraplegic
- enquiry is perspective, wrong to focus on inquiry for breach exclusively on which
the accident occurred
- judge what a reasonable person would of done, after the event
Adeels Palace Pty Ltd v Moubarak
- fight in a restaurant on nye, a man started a fight left the premises, came back
with a gun and shot the 2 plaintiffs
- whether a duty of care owed by the restaurant owners to injured parties
- held yes because of the operations of the liquor act, strong operations to prevent
access to the premises required
- should have been assessed before the restaurant begun
Statutory provisions affecting determination of breach
- Div 2 Wrongs Act (ss48-50) contain provisions relevant to determining whether a
breach has occurred
- Div 2 headed ‘Duty of Care’
-
But this is ‘apt to mislead’ as principles are evidently directed to breach, not
DOC
 Adeels Palace Pty Ltd v Moubarak
 Sydney Water Corporation v Turano
Section 48 (1) Wrongs Act:
General Principles
1) A person is not negligent in failing to take precautions against a risk of harm
unless a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to
have known); and
b) the risk was not insignificant; and
c) in the circumstances, a reasonable person in the persons position would have
taken those precautions
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GENERAL BREACH PRINCIPLES
1. Reasonable foreseeability
- The assessment of breach depends on the correct identification of the relevant risk
of injury: RTA v Dederer (HCA, 2007)
- Breach relates to ‘risk of injury’
- The CL test for breach of duty was laid down in Wyong v Shirt (HCA, 1980): ‘In
deciding whether there has been a breach of the duty of care the tribunal of fact
must first ask itself whether a reasonable man in the defendant’s position would
have foreseen that his conduct involved a risk of injury to the plaintiff or to class of
persons including the plaintiff’
- There is still the CL test of breach: NSW v Fahey (HCA, 2007)
- s48(1)(a) and the civil liability legislation establishes a test for breach of duty
clearly drawn from Shirt, but not identical to it
- A risk which is not far fetched or fanciful is real and therefore foreseeable: Wyong
Shire Council v Shirt (HCA, 1980)
- A risk might be small but still foreseeable
 Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd
- cases involving leaking oil from a tanker that caused personal injury and
property damage
- where risk of injury was small, it was still
- D does need to foresee precise sequence of events: sufficient that D could
reasonably foresee the general risk of harm
 Doubleday v Kelly (2005)
- Determination of reasonable foreseeability must be based on evidence presented
by the plaintiff
 Sydney Water Corporation v Turano (HCA, 2009)
- HC re-examined the concept of reasonable foreseeability and has
emphasized that the evidence must establish that the defendant could have
foreseen the actual risk that occurred.
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2. The risk was not insignificant
- Reasonable foreseeability threshold considered too low: legislature introduced a
higher threshold, ‘not insignificant risks’
- ‘Insignificant’ risks not compensable
Defined in section 48(3):
a) insignificant risks include, but are not limited to, risks that are far-fetched or
fanciful
b) risks that are not insignificant are all risks other than insignificant risks and
include, but are not limited to, significant risks
- Not insignificant risks are those of a higher probability than ‘far fetched or
fanciful’ risks but a lower probability than a ‘significant’ or ‘substantial’ risk
Benic v State of New South Wales [2010] NSWC 1039
Approach to interpreting not insignificant:
a) Assessment of the risk of harm is one made in prospect and not retrospect.
Hindsight has no part to play;
b) The phrase is of a higher order than the common law test, and this was intended
to limit liability being imposed too easily;
c) The phrase ‘not insignificant’ is intended to refer to the probability of the
occurrence of the risk;
d) In the realm of tort law, the probability of an occurrence is both a quantitative
measurement, which may, but does not necessarily reflect a statistical and
numerical assessment, and also an evaluative measurement. The statutory phrase
is a protean one which depends upon the context of facts, matters and
circumstances for its meaning;
e) Whether a risk is not insignificant must be judged from the defendants
perspective an must be judged on a broader base than a mere reductionist
mathematical formula:
These principles adopted by the VSC: Gunnerson v Henwood [2011] VSC 440;
Ultra Thoroughbred Racing v Those Certain Underwriters [2011] VSC 589
3. A reasonable person in the person’s position would have taken those precautions
- P must establish that it was reasonable to require the D to have acted in a way to
take precautions against the foreseeable, not insignificant, risk of harm
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- Does not require the defendant to guarantee the plaintiff’s safety; Derrick v
Cheung (2001) 181 ALR 301
Two steps:
1. What is the standard of care expected of the reasonable defendant?
2. Did D fall below that standard of care? – Determined by the ‘calculus of
negligence’ and other factors, such as personal responsibility and
community standards
- Whether a reasonable D would have taken precautions against a risk must
be determined:
a) Prospectively, and
b) On the basis of the facts of the case that are proved in evidence, for example as to
reasonableness of precautions
- Adeels Palace Pty Ltd v Moubarak (HCA, 2009)
CALCULUS OF NEGLIGENCE
Section 48(2)
- In determining whether D fell below the standard of care, for example whether a
reasonable person would have taken precautions other than D did, court is to
consider, amongst other things:
1. Probability that the harm would occur if care were not taken;
2. Likely seriousness of the harm;
3. Burden of taking precautions to avoid the risk of harm;
4. The social utility of the activity that creates the risk of harm
- These 4 factors, aka ‘calculus of negligence’ drawn from the common law in:
Wyong SC v Shirt
Three important points:
a) A balancing exercise; no one factor is determinative
- Bolton v Stone (1951) – social utility issue
- Romeo v Conservation Commission (NT (1998)
b) Calculus not to be applied rigidly/mechanistically: ultimate question is whether
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D acted reasonably in all the circumstances
- New South Wales v Fahy
c) Factors listed in s48 (2) are not exclusive:
- s48 (2) specifically states that the 4 above factors in calculus of negligence are
‘amongst other relevant things’
- other factors such as individual responsibility and autonomy also taken into
account
1. Probability of harm occurring
- D might be justified in ignoring a very small (though foreseeable) risk of injury
 Bolton v Stone (1951)
 Romeo v Conservation Commission (NT) (HCA, 1998)
- A risk might be very low because it should have been obvious
 Eutick v City of Canada Bay Council [2006] NSWCA 30
2. Likely seriousness of the harm
- The precautionary measures reasonably expected of D will vary according to the
magnitude of the injury, which might result
 Caledonian Collieries Ltd v Speirs (HCA, 1957)
- D must adopt special precautionary measures where D knows P will suffer greater
damage than normal
 Paris v Stepney Borough Council (UK, 1951)
-
P employed as a fitter, P was practically speaking blind in his left eye,
employer knew this
- Metal lodged in P’s right eye, as a consequence he became entirely blind
- P established negligence, failure by employer to provide safety in the work
force
- Probability of this occurrence was no greater than
3. Burden of taking precautions
- It must be reasonably practicable for D to take precautions against the risk
- Where the precautions are simply and inexpensive, this will weigh in favor of a
breach
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 Doubleday v Kelly
- Expensive precautions (especially where risk low) will militate against breach
 Romeo v Conservation Commission (NT) (1998)
- went out drinking, fell off a balcony
 Section 55 Wrongs Act
- D not liable for harm suffered by another person as a result of the materialization
of an inherent risk
-
An inherent risk is something that can not be avoided by the exercise of
reasonable care
-
Through D still might be liable for a failure to warn of an inherent risk:
s55(3)
Section 49 Wrongs Act
- Consideration of the burden of taking precautions must include burden of taking
precautions against similar risks of harm for which the person may be responsible:
s 49(a)
- Enactment of principle from Romeo (HCA, 1998)
- RTA (NSW) v Chandler (NSWCA, 2008)
- The fact a risk of harm could have been avoided ‘by doing something in a different
way’ does not of itself give rise to or affect liability: s49(b) Wrongs Act
-
Provision yet to be definitively interpreted but one interpretation is that
intended to reflect Derrick v Cheung
- The subsequent taking of action that would (had the action been taken earlier)
have avoided a risk of harm does not of itself give rise to or affect liability in respect
of the risk and does not of itself constitute an admission of liability in connection
with the risk: s49(c)
- Reflects common law principle (Gillies v Saddington (2004)), (Mulligan v Coffs
Harbour CC (2005)
Section 14J: apology
- s14J: an apology does not constitute an admission of liability, or an admission of
an admission of unprofessional conduct,, carelessness, incompetence or
unsatisfactory professional performance
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4. Social utility
- The social justifiability/utility of D’s conduct will be taken into account
E v Australian Red cross
- But emergency services not permitted to take unnecessary risks: Watt v
Hertfordshire CC
Time for assessing risk
- D’s conduct is to be judged in accordance with the state of knowledge at the date
of the accident, rather than the date of the trial
-
Roe v Ministry of Health (1954)
- 2 men went to hospital for minor procedures
- both spinal anesthetic, each of them in consequence were paralyzed
- anesthetic had mixed with the solution which was stored in a due to
microscopic cracks
HELD
- hospital was not liable, ‘we must not look at the 1947 accident, with 1954
spectacles’
- risk of this happening was not a factor that was in the knowledge of the
hospital
-
S58(b) Wrongs Act
Intoxication/illegality
- Romeo – Generally no breach where injury arose only because of the plaintiff’s
intoxication
- where the injury only arose because of p’s intoxication, no breach by the defendant
Section 14G Wrongs Act:
In determining breach of duty of care courts must take into consideration:
a) whether the plaintiff was acting illegally at the time of his or her death or injury,
or
b) whether the plaintiff was intoxicated by alcohol or drugs that were consumed
voluntarily, as well as the level of the intoxication
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- requires court to consider whether it would be unreasonable to require a D to take
increased precautions were P intoxicated or acting unlawfully
Other factors relevant to whether D fell below standard of care
- Calculus of negligence not decisive; the ultimate question is reasonableness; for
example whether it is reasonable to impose liability on D
Include:
Individual responsibility/autonomy
- Series of High Court cases following Romeo emphasizing individual responsibility
and autonomy:
-
Cole v South Tweed Heads rlfc lTD
- duty of care
- drunk women left a licensed premises, intoxicated, refused the offer of a
curtsy bus or taxi, later struck by car
- reasonable person knew she was intoxicated but no duty of care to seize
supplying her with liquor
- shouldn’t restrain adults of voluntary behavior
-
C.A.L No 14 v Scott
- was there a duty of care to call his wife before his motor vehicle accident,
no duty of care owed
-
Vairy v Wyong Shire Council; Mulligan v Coffs Harbour
- share similarities – issues that arose involves claims by plaintiffs that were
paraplegic diving into water, brought against local council authority
-
RTA of NSW v Dederer
- diving case involving 14 year old boy, rendered paraplegic, dived off a
bridge into shallow water and struck head on airstream bed
- boy had died from the bridge day before and he was aware of the signs and
condition of the depth of the water would change
- even if their was a sign that said prohibited, their should have been a
warning of shallow water
- if there was a warning sign, P would not of ignored it – duty of care by
council public authority to use its recreational facilities, but no breach of it
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- D’s can generally act on the basis others will exercise a reasonable measure of
care for themselves
- Occupier not liable for common, everyday and apparent defects, or for failure to
warn of these
-
Thompson v Woolworths Pty Ltd
- there are no risk free dwelling houses
- community standards of reasonable behavior do not require all risks to be
removed
- requirements of an occupier to take reasonable measures
-
Neindorf v Junkovic
- D was an occupier of a private domestic residence and although when the
injury occurred, there were commercial activities, it was on a domestic
premises
- plaintiff sustained injury where she tripped on uneven surface on driveway
- no duty of care/breach by failing to remove something in the driveway as
this is a commonly encountered risk which should be obvious
Obvious risk (plaintiff)
- Relevant consideration: obviousness of the risk
-
Romeo v Conservation Commission of the Northern Territory
- 15yo girl, met with a friend at the car park, she consumed 150ml
equivalent of rum, she wandered off and fell 6m below the beach below, P
suffered injuries of high level paraplegic
- reasonable response to install a fence or provide some sort of warning sign
-
Woods v Multi Sport Holdings Pty Ltd
- relevance of breach of duty in question
- operator of indoor cricket center has not breached his duty, of their risk of
being hit by the ball in the eye
- risk is so obvious reasonableness not relevant
- Often important, but not determinative – question is reasonableness in all the
circumstances
-
Vairy and Mulligan
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Specific breach situations: Failure to warn
- This ground of liability favored by Ps because the warning would usually be cheap
and practicable
- Line of authority following Romeo: generally, no obligation to warn an obvious
risk
-
Woods v Multi-Sport Holdings
-
University of Wollongong v Mitchell
-
Vairy v Wyong SC; Mulligan v Coffs Harbor
-
Question of reasonableness in all circumstances
- s50 Wrongs act: duty of care to warn of risk satisfied if D takes reasonable
care in giving that warning or other information
- P bears the onus of proving he/she was unaware of the risk: s56(1) Wrongs
Act
Specific breach situations: Public authorities and recreational activities
- No general duty to warn of normal risks endemic to a particular recreational
activity (Enright v Coolum Resort Pty Ltd)
-
Party drowned when swimming in an unpatrolled beach and could not come
back to shore
-
Claimed negligent in failing to warn dangers of swimming at an unpatrolled
beach
-
Claim dismissed on basis that the risk is an ordinary risk involved in
swimming the sea; the swimmer was experienced and could have made his
own judgment; there is no need to differentiate from this beach to any
others as to requiring special warnings
- Vairy and Mulligan: relevant considerations include:
-
Obviousness of risk
-
Range of potential hazards and risks
-
Nature of the accident site particularly hazardous
-
Encouragement to use that site
-
Knowledge of risk/previous accidents
-
Cost implications for public authorities
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-
Aesthetic implications
- RTA of NSW v Dederer
Statutory provisions applying to public authorities
Section 83 Wrongs Act
In determining whether a PA has a duty of care or has breached a duty of care, a
court is to consider the following principles (amongst other relevant things
a) the functions required to be exercised by the PA are limited by the financial and
other resources that are reasonably available to the authority for the purpose of
exercising those functions;
- recognition that Pas have limited resources – reflects common law Romeo v
Conservation Commission
- note that ultimately the question is whether it was reasonable for the PA to
prevent the risk; not whether it would have been cheap and easy to do so – RTA
(NSW) v Refrigerated Roadways Pty Ltd
b) the functions required to be exercised by the PA are to be determined by
reference to the broad range of activities (and not merely by reference to the
matter to which the proceeding relates)
c) the PA may rely on evidence of its compliance with the general procedures and
applicable standards for the exercise of its functions as evidence of the proper
existence of its functions in the matter to which the proceeding relates
STANDARD OF CARE
Standard of the reasonable person
- Objective standard
- Standard of care is that of the reasonable and prudent person in D’s position
- D must exercise the skill and care that a reasonable person of ordinary
intelligence, skills and experience would exercise
- The personal circumstances or characteristics (such as intelligence, experience, or
mental state) of the defendant are generally not taken into account
-
Imbree v McNeilly [2008] HCA 40
- Where the instructor is fully aware of driven inexperience, lower standard
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of care will apply
- Nominal standard of care would still be owed to the other passengers
-
Miller v Miller [2011] HCA 9
- Standard of care not generally variable
Modification of the standard of care
A modified standard of care applies in the case of:
- Children
- Activities requiring special skills
- Unconsciousness or automatism
Children
- Standard of care is objective, but based on a reasonable child of that same age
- Child expected to exercise the same degree of skill and competence and to
understand risks involved as could reasonably be expected of a child of that age
-
McHale v Watson
-
Parental liability
- No vicarious liability
- Parents liable if they fail to exercise a reasonable degree of control and
supervision over their child’s activities
-
Smith v Leurs
-
Curmi v McLennan
- C allowed 17 year old son to invite friends
- one guest shot another in the eye with a gun
Relevant factors
- The age of the child
- The dangerousness of the object/activity
- The warnings given
- The child’s training and experience
Special skills
- Normal objective standard is that of the reasonable professional exercising
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ordinary skill and competence
- Defendants who hold themselves out as possessing special skills must comply with
the standard of care reasonably expected of a person who possess those skills
-
Clurelli v Girgis (defendant held himself out as a medical specialist)
-
Smith v Tabain (non-electirciian fixing power lines)
- s58 Wrongs Act
- Phillips v William Whiteley
Unconsciousness or automatism
- Mental illness/impaired faculties will not of itself affect the standard of care
expected of the defendant
-
Adamson v Motor Vehicle Trust
-
Roberts v Ramsbottom
- If the defendant is unconscious or an automaton, the standard of care is reduced
accordingly. Advance warning/knowledge of symptoms crucial
SPECIFIC STANDARDS
Industry standards
- Common practices in the industry existing at the date of the incident will be
persuasive but not determinative
-
O’Dwyer v Leo Buring
- Leo Buring was a winery, this case concerned the bottle exploding when a
customer opened it, the bottle stopper was effectively designed that it
ejected spontaneously out of the bottle
- Determined of evidentiary value, but not of the question of breach
-
Woods v Multi-Sport Holdings
- Industry standards ‘industry custom and practice can guide but cannot
determine whether a person is in breach of a duty of care…’
- what constitutes reasonable standards
Professional standards – medical professionals
- Medical professionals
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Distinction between:
- Diagnosis and treatment (issues of errors in judgment by medical specialist) and
- Failure to warn/ provision of advice (issues of consent to medical treatment)
Diagnosis and treatment
- Persuasive but not determinative, that D had acted in accordance with a
reasonable body of medical opinion
 Rogers v Whitaker
- declared that with the duty to advise, influential decisive role in
determining standards… it is for the courts to adjudicate on the standard of
duty of care
- W had lost vision in her right eye, normal vision in her left eye
 Naxakis v Western General Hospital
- A neurosurgeon could be held negligent for failure to perform on a young
child even though opinion on all expert witnesses except one agreed on a
course of action
s59 (1) Wrongs Act
A professional is not negligent in providing a professional service if it is established
that the professional acted in a manner that (at the time the service was provided)
was widely accepted in Australia by a significant number of respected practitioners
in the field (peer professional opinion) as competent professional practice in the
circumstances
s59 Burden of Proof
- s59 operates in practice as a defense
- s59 silent on BOP
- Onus on D professional to prove that the practice complies with peer professional
opinion
 Brakoulias v Karunaharan [2012] VSC 272
- s59 operates as a defense to that the onus of porrof is one the defendant
- this is because defendant is the only one who would need to prove approval
of expert in that profession
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 Grinham v Tabro Meats Pty Ltd; VMA v Murray [2012] VSC 491
- Agreed with interpretation of s59 in Braukoulias
Qualifications to s59
- s59 (2) Peer professional opinion cannot be relied upon if the court determines
the opinion is unreasonable. This determination must be put in writing (unless a
jury determination)
- s59 (3) The fact that there are differing peer professional opinions widely
accepted in Australia by a significant number of respected practitioners in the field
concerning a matter does not prevent any one or more (or all) of those opinions
being relied on for the purposes of this section
- s59(4) Peer professional opinion does not have to be universally accepted to be
considered widely accepted
Section 59 n/a to failure to warn cases
- s59 does not apply to failure to warn of a risk associated with the provision by a
professional of a professional service: s6 Wrongs Act
Failure to warn/provide advice
- Provision of information and advice by medical practitioner
-
Rogers v Whitaker
-
Evidence of acceptable medical practice is again influential, though no
determinative
-
D must advise of material risks
-
A material risk is a risk:
- That would influence the normal patients decision whether or not to go
ahead with treatment, or
- That particular patient has indicated would influence her decision
-
Note s48 requirement that risk be ‘not significant’
-
Duty to disclose is subject to therapeutic privilege
Professional standards – other professionals
- s59 is not limited to medical practitioners but applies to all professionals
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providing a service
TOPIC 7 – CAUSATION
CAUSATION
Introduction
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- Once breach of duty established, P must then prove a causal link between D’s
breach of duty and P’s harm
 RTA v Royal
- P always bears the burden of proving, on the balance of probabilities, any fact
relevant to the issue of causation – burden of proof
 S52 Wrongs Act
- Once causal link established on the balance of probabilities, the damage becomes
a legal certainty and P can recover the full amount of the damage
 Amaca Pty Ltd v Ellis [2010] HCA 5
- Causal uncertainty arising from absence of knowledge
- Relied on epidemiological evidence – all evidence must be specific to
question in issue
- Could succeed only if she showed that Mr. Cotton’s exposure to asbestos
had caused/contributed to his developing lung cancer – evidence did not
establish facts which positively suggested that it was more probable than
not
 Tabet v Gett [2010] HCA 12
- Tabet sued for a ‘loss of chance of a better medical outcome’ claiming she
was ‘deprived of the chance of a better outcome’ as Dr. Gett did not order a
CT scan on 13/01/1991 but the next day instead
- HC firmly rejected cl doctrine of ‘loss of chance of a better medical
outcome’ – incompatible with causation/principles of negligence
- unable to prove that had the treatment by corticosteroids been
undertaken, brain damage would have been avoided
Section 51 Wrongs Act
Factual and Legal Causation
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 is appropriate for the scope of the negligent persons liability to extend to
the harm so caused (scope of liability)
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FACTUAL CAUSATION
- was the defendant’s negligence a necessary condition of the occurrence of the
harm
- a legislative enactment of the common law ‘but for test’
- ‘but for’ the defendant’s negligent act or omission, would the harm to the plaintiff
have occurred?
- D’s negligence does not have to be the sole cause, but it must be a cause
- prima facie test
But for test
- rejected as a comprehensive or exclusive test of causation (majority in March v
Stammare):
-
But for effective at eliminating negligence as a cause, as a negative criterion
(Tabet v Gett)
-
But high Court has been increasingly strict in its application of but for
- Adeels Palace Pty Ltd v Moubarak [2009]
-
But for test of factual causation not established
-
No evidence that presence of security staff would have deterred or
prevented the re-entry of a man armed with a gun that he was ready and
willing to use on persons unconnected with the previous altercation;
gunman bent on revenge, not acting rationally
-
Mere possibility that security guards could have prevented the shootings
insufficient; must be a probability
-
Not an exceptional case where but for causation does not need to be
established
- Amaca Pty Ltd v Ellis [2010]
-
P failed because could not establish on balance of probabilities that the lung
cancer would not have occurred but for the exposure to asbestos:
- no evidence that exposure to an asbestos alone caused the cancer
- epidemiological evidence that the combination of smoking and exposure to
asbestos can increase risk of lung cancer: but no evidence that they must
work together to increase risk
- inference could not be drawn from epidemiological evidence that
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combination of smoking and asbestos exposure ha actually caused P’s
cancer. Medical evidence that P’s heavy smoking by far the most probable
cause of his lung cancer
FORMULATED TWO TESTS:
1. Did the particular defendant’s breach of the duty care, rather than some,
other cause, was more probably than not a necessary condition for the
plaintiff’s injury? And
2. Was the plaintiff’s injury ‘intimately connected with and contributed to’
by the defendant’s breach of duty of care?
But for less effective at confirming negligence was the cause:
1. Identifies background causes and coincidences as factual causes
- Faulkner v Keffalinos
- RTA v Royal
-
R was negligent, though S’s damages were reduced by one third b/c of his
contributory negligence
- RTA knew that the intersection where the accident occurred was an
accident black sot and that though its failure to remedy the problem of the
black spot, it materially contributed to S’s injuries and should bear one third
of the damages judgment
- Canterbury Bankstown RLFC v Rogers
2. Unsatisfactory in determining whether a more immediate cause is a
novus actus intervenies
-
Inferences
- But for causation might be established as a matter of inference from the
surrounding circumstances: Strong v Woolworths Limited t/as Big W
[2012] HCA 5
- But the evidence must support an inference that the negligent act was the
probable cause of the plaintiffs injury, not just a possible cause Lithgow City
Council v Jackson [2011] HCA 36
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-
Since each of the 3 possible causes (a fall from the vertical western end, a
fall from the northern side or a fall from the southern side) is capable of
causing the respondent’s injuries, at least in the circumstances of this case, a
conclusion that the [negligent] cause was the cause capable of producing
the most damage does not follow. That Is because that cause was a sufficient
but not necessary condition for the injuries: the other causes would have
been sufficient as well’
Wrongful diagnosis or treatment
- Hotson v East Berkshire Area Health Authority
- Doctor not liable for misdiagnosis unless it caused the harm on balance of
probabilities
- Straightforward application of but for test: P must prove on the balance of
probabilities that, but for D’s negligence, the injury would not have occurred
Loss of chance
- Damages not available in Australia for loss of a chance of a better medical
outcome for example ‘loss of chance’ damages N/A
- Onus on plaintiff in all cases to prove on the balance of probabilities that the harm
would not have occurred had a more timely diagnosis or more timely treatment
taken place
- Tabet v Gett [2010] HCA 12
Kiefel J
-
Damage is the gist of the cause of action in negligence;
-
P must establish causal link between breach of duty and harm
-
Standard of proof is the balance of probabilities
-
Where probability of harm < or = 50%, causal link not established
-
Where a > 50% probability, P gets 100% of damages; where <= 50%, P gets
nothing (all or nothing)
-
The harm is the bodily injury, not the loss of opportunity to secure a better
medical outcome
Crennan J
-
Radical change in standard of proof; would require legislative intervention
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-
Policy considerations: defensive medicine; impact on Medicare, private
insurance and professional indemnity
- Gregg v Scott
-
Cf cases involving loss a commercial opportunity: Sellars v Adelaide
Petroleum NL
Exceptional cases
Section 51 (2)
In appropriate cases, where negligence is not a necessary condition of the harm, the
court must consider (amongst other things) whether or not and why responsibility
for the harm should be imposed on the negligent party
- Essentially leaves the matter to common law development
- Criticized for ambiguity and possible extension of common law principles
- Possibly, enacted to deal with the cases dealing with exposure to asbestos and dust
- Adeels Palace Pty Ltd v Moubarak [2009] HCA 48
LEGAL CAUSATION
- Court must consider whether or not and why responsibility for the harm should be
imposed on the negligent party: s51(4)
- A normative question: should liability legally be imposed?
- Involves questions of principle as well as policy considerations, such as personal
responsibility
-
Hunter Area Health Services v Presland
- At common law courts initially referred to value judgments and common sense
and experience – March v Stramare
- Travel Compensation Fund v Robert Tambree [2005] HCA 69
-
Majority: common sense and discretion has no role; causation determined
as a matter of principle and policy and by reference to the statutory
provision or common law rule that confers a cause of action
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Scope of liability
- s5(1)(b) is a normative test that operates to determine whether the factual cause
is to be considered a legal cause
- s51(4) states that in answering the normative question, the court must consider
‘whether or not and why responsibility for the harm should be imposed on the
negligent party
- Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568
-
Rejected common sense test of causation, on the basis it conferred on courts
an unfettered discretion to determine causation
- Travel Compensation Fund v Robert Tambree [2005] HCA 69
-
Majority rejected common sense test and emphasized that causation issues
must always be determined by reference to principle, not open ended value
judgments or references to common sense
- Wallace v Kam [2013] HCA 19
-
Court emphasized that for legal causation to be established there must be a
connection between the risk that negligently was not disclosed and the
harm that materialized
Novus Actus Interveniens
- An intervening act or event that breaks the chain of causation between D’s
negligence and P’s injury
- A voluntary human action or causally independent event the conjunction of which
with the wrongful act or omission is by ordinary standards extremely so unlikely as
to be termed as a coincidence
- Haber v Walker
- If independent event not a novus actus – D is responsible for all of the damage,
perhaps jointly and severally with TP
- If independent event a novus actus, D is not responsible for the damage resulting
from the intervening act or event. A TP might be liable.
Two test’s for novus actus
- Was the act or event reasonably foreseeable? Chapman v Hearse
- If rf, was the act or event ‘in the ordinary course of things the very kind of thing
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likely to happen as a result of D’s negligence;’ was the injury within the ‘sphere
of risk’ created by D’s negligence
-
March v Stramare
-
Mahoney v J Kruschich
-
Travel Compensation Fund v Robert Tambree
Intervening negligent act of TP
- Negligent acts of third parties will not break the chain of causation where D’s
negligence generated the very risk of injury that occurred
- Chapman v Hearse
Medical negligence and NAI
- Medical negligence is ‘the very thing likely to occur’ where D injures P
- D and the doctor will be jointly and severally liable for the additional harm
- Negligent medical treatment is a NAI where ‘inexcusably bad’ or ‘completely
outside of the bounds of what any reputable medical practitioner might prescribe’
or ‘so obviously unnecessary or improper that it is in the nature of a gratuitous
aggravation of the injury’
-
Only the doctor is liable for the additional harm
-
Mahoney v J Kruschich (Demolitions) Pty Ltd
-
Wallace v Kam [2013] HCA 19
HELD
(1) Although Dr. Kam was negligent in failing to warn the patient about
neurapraxia, the p did not establish causation, because he would have
consented to undergo the procedure, even if wanted of this risk; and
(2) The undisclosed risk which did not materialize (paralysis) is not
relevant to determining liability
Intervening deliberate act of TP
- A deliberate act by a TP will not break the chain of causation where it was within
the sphere of risk created by D’s negligence
-
Adeels Palace Pty Ltd v Moubarak [2009]
-
Curmi v McLennan
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- An intervening criminal act might not be the ‘very risk likely to occur’
-
Rickards v Lothian
-
SRA (NSW) v Chu [2008] NSWCA 14
-
Cf Dorset Yacht Co Ltd v Home Office
Intervening negligent acts of P
- Negligent acts by P do not break chain of causation where D’s negligence has
created the very risk that occurred
- P’s damages reduced for contributory negligence
- March v Stramare: ‘D’s wrongful act in parking the truck in the middle of the road
created a situation of danger, the risk being that a careless driver would act in the
way that [P] acted. The purpose of imposing the common law duty on [D] was to
protect motorists from the very risk of injury that befell [P]’
Intervening deliberate acts of P
- P’s act must be truly voluntary
- Voluntariness negative if D’s negligence materially contributed to P’s act (for
example is a continuing cause)
- Haber v Walker
- Medlin v SGIC
- P’s conduct must not be judged ‘unreasonable as between P and D or in an
inappropriate response’
- Medlin v SGIO
- Mahoney v Kruschich
- P’s conduct must be reasonable as between P and D – courts must assess whether
it is appropriate to extend D’s ‘ to the consequences of P’s voluntary act (s51(1)
(b))
- Refusal of life saving medical treatment, for example a blood transfusion
- Mahoney v Kruschich: NAI where P has acted unreasonably in the type of
treatment or who sought treatment from
- Boyd v SGIC
- Cf Adelaide Chemical Fertiliser Co v Carlyle
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Multiple successive events: Two successive tortious events
- Baker v Willoughby
- ‘You take P as you find P’
- The second tortfeasor is liable only for the additional damage
- The first tortfeasor’s liability generally remains unabated
- Performance Cars v Abraham
- Part IVAA Wrongs Act: Concurrent wrongdoers required to contribute only to
extent of responsibility for property damage
Multiple successive events: Subsequent event non tortious
- Jobling v Associated Dairies
- A subsequent non-tortious event (innocent cause) is one of the vicissitudes of life –
it will be taken into account in reducing D’s damages
- D not liable for losses that would have occurred anyway as a result of that
subsequent event
- Consistent with Malec approach
- Faulker v Keffalinos
Factual causation: Failure to warn of a medical risk
- Doctor must warn of all material risks – Rogers v Whitaker
- P must show a causal link between the failure to warn and the injury suffered
- Causal link is established if P can show she would not have gone ahead with the
operation if warned of the material risk that eventuated
 Rosenberg v Percival
A subjective not objective test
 Would that particular patient have proceeded with the operation, not would
a reasonable patient have proceeded
Court has regard to
- The evidence of P (though inherently unreliable)
- In other states (not Vic) P’s own testimony is inadmissible
The surrounding objective facts such as:
- The health benefits of the operation – significant?
- The degree of risk of the complication, occurring and
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- The extent of harm likely to eventuate
51(3) probably intended as a statutory enactment of Rosenberg v Percival
- not just limited to medical cases
- applies wherever the issue is what P hypothetically would have done had D
not been negligent
- Applies to failure to warn cases generally
 Domic v Riz [2009] NSCA 216
- P and his wife sued solicitors, claimed to have suffered economic loss, as
solicitor employed by firm failed to be more forceful in expressing her views
that they need to attain greater legal advice before engaging in ‘risky
transactions’ which resulted in the P’s loosing their home
- Would not of made a difference if she was more forceful or not, evidence of
little/no value
Professional standards?
 Chappel v Hart
Majority
- Causation established
- Applied the but for test – the complication would not have eventuated if
surgery had taken place at a later time
Minority
- Causation not established
- Dr C’s negligence had not materially increased the risk of injury to P
 Wallace v Kam [2013] HCA 19
Unanimous
- An impairment of a choice to decide whether to undergo a surgical
procedure itself is not a compensable injury under the law of negligence
- Nor does the law provide compensation for failure by doctors to advice
patients about risks (2nd risk of paralysis) that they would have found
unacceptable, but which did not materialize
- Further, P is not to be compensated for the occurrence of physical injury
the risk of which he was prepared to accept’ (1st risk of neuropraxia)
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Res Ipsa Loquitur
- The thing speaks for itself
- An inference of negligence drawn where the accident not ordinarily occur without
negligence on the defendants part
- Byrne v Boadle (barrel fell from a window in the defendants building)
Three conditions
1. The cause of the accident is unknown or unspecified
2. The accident would not, in the ordinary experience of mankind, normally occur
in the absence of negligence, and
3. The object or activity was within the exclusive control of the defendant
- Mummery v Irvings
Schellenberg v Tunnel Holdings Pty Ltd
Facts
- P was employed as a mechanical foreman responsible for supervision of air
pressure system and hoses in a workshop
- While he was working, a tool powered by a compressed air hose, the hose became
detached from its coupling
- The escaping compressed air caused hose to swing uncontrollably and struck him
in the face
Decision
- To establish in a claim of res IPSA loquitur the plaintiff has to establish a positive
inference of the lack of care on part of defendant as the probable cause of harmful
occurrence
Must establish:
1. There is an ‘absence of explanation’ of the occurrence that caused the injury
2. The occurrence was of such a kind that it does not ordinarily occur without
negligence; and
3. The instrument or agency that caused the injury was under the management and
control of the defendant
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- SJ Weir Ltd v Bijok [2011] SASFC
Liability of multiple tortfeasors
Solidary liability - joint and several liability
- At common law, where there are one or more wrongdoers (or tort-feasors)
responsible for the same harm, the liability of the wrongdoers is ‘joint and
several’
- This means that those wrongdoers can be sued jointly (in the same action) for the
harm, or severally (in separate causes of action) for the harm
- Each wrongdoer is 100% responsible fro all of the harm and thus the plaintiff can
choose to execute the judgment and receive full satisfaction against one wrongdoer
only (and not the others)
- This is the common law principle of solidary liability, also called joint and
several liability, or several concurrent liability
Proportionate liability and concurrent liability
 The above common law principles of solidary liability apply to claims for
personal injury damages
- But Part IVAA of the Wrongs Act now modifies the position in respect of
claims in negligence for pure financial loss and property damage. Note that
s24AG (1) specifically excludes the application of proportionate liability to
personal injury
- The objective of these proportionate liability provisions is to ensure that
where there are concurrent wrongdoers responsible for the harm (In the
case of property damage or financial loss only) to the plaintiff, each
wrongdoer is liable only to the extent of their responsibility for the loss
Wrongs Act provisions re PL and CL
- A concurrent wrongdoer is defined in s24AH as a ‘person who is one of two or
more persons whose acts or omissions caused, independently of each other or
jointly, the loss or damage that is the subject of the claim’
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Section 24AI then provides:
(a) the liability of a defendant who is a concurrent wrongdoer in relation to that
claim is limited to an amount reflecting that proportion of the loss or damage
claimed that the court considers just having regard to the extent of the defendant’s
responsibility for the loss or damage; and
(b) judgment must not be given against the defendant for more than that amount
in relation to that claim
IPP Panel
Recommendations
- Solidary liability retained for personal injuries claims
- Proportionate liability recommended for property damage or pure financial loss
Hunt and Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10
Majority
- crucial to identify the loss or damage claimed by P, as that will determine whose
acts or omissions caused that loss or damage
- On facts, loss/damage to P was inability to recover the moneys advanced under
the loan agreement
- It held that the conduct of both the solicitors and fraudsters had caused this loss:
the solicitors by failing to ensure there was appropriate security for the repayment
of the loan and the fraudsters by causing the loan agreement to be void and
unenforceable
TOPIC 8 – REMOTENESS OF
DAMAGE
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REMOTENESS OF DAMAGE
Three steps to determine remoteness element:
a) was the specific injury rf?
If not then
b) was the injury of the type or class, which was reasonably foreseeable?
If not then
c) does the egg shell skull rule apply?
General principles
- D not liable for all causally related injuries
- Extra requirement: P’s injuries must not be too remote
 Overseas Tankship (UK) Ltd v Morts Dock & Engineering (Wagon Mound No
1)
 Overseas Tankship (UK) Ltd v Morts Dock & Engineering (Wagon Mound No
2)
- No specific provision in Wrongs Act, but included as factor in s51(1)(b) (whether
it is appropriate to extend D’s liability to the injuries )
- Will not be deemed too remote if plaintiff can prove the damage was a reasonably
foreseeable consequence of defendant’s negligent conduct
- Legal cause for p’s harm should be attributed to d’s fault
Reasonable foreseeability
- Focus is on the injuries sustained: Was that type of injury reasonably
foreseeable?
- Purpose: mark limits beyond which d will not be held responsible for damage
resulting from their wrongful act
- Risk of injury must be reasonable foreseeability as a ‘real risk’; a not ‘far-fetched
or fanciful’ risk
Duty of care
- Focus on foreseeable risks that the d’s conduct might create within a legal
neighborhood
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- How a reasonable person in the circumstances of the defendant would respond to
a foreseeable risk of injury
Standard of care
- Minister for Environmental Planning & Assessment Act 1979 v San Sebastian Pty
Ltd (1983) 2 NSWLR 268 – Examines nature of foreseeable risk of some kind of
damage that the particular kind of carelessness charged against d might cause
- Was the risk of harm sufficiently substantial? How should the defendant react to
such a risk?
Causation
- The d’s wrongful conduct has generated the very risk of injury resulting from the
negligence of the p or a third party and that injury occurs in the ordinary course of
things – March v E & MH Stramare (1991) 171 CLR 506
The concept and nature of remoteness of damage
Wagon Mound cases
P’s injuries not too remote if
1. The specific injury was foreseeable, or
2. The injury is of a type or kind of injury that was rf
Irrelevant that
a) The precise condition or injury, or
b) The precise manner in which the harm occurred, or
c) The full extent or seriousness of the harm suffered
Was not rf
- Problem is lack of guidance of appropriate level of abstraction for determining the
kind of injury
- Versic v Conners (1969)
- Tremain v Pike (1969)
Test for remoteness of damage
Manner of occurrence of harm
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- P must establish hat the kind of harm suffered by them was reasonably
foreseeable by d
 Compare wagon mounds 1 and 2
- It is not necessary to prove that D could foresee the precise sequence of events that
led to P’s harm
- Hughes v Lord Advocate
 Lord Reid: injuries caused by burns, and burns injuries were foreseeable
 Lord Pearce: foreseeable that boys would mishandle lamp; injuries suffered
were a ‘variant of the foreseeable’
 Not necessary to foresee the exact way in which an accident occurs, as long
as one anticipates the general type of consequence that transpires
- Metrolink Victoria Pty Ltd v Inglis [2009] VSCA – appropriate categorization of
the loss in a given case will be, in essence, a question of policy, ‘economic loss’ or
‘psychiatric loss’ provide opportunity to consider its reasonable foreseeability
- Jolley v Sutton LBC: Foreseeable risk that children would meddle with boat at risk
of serious injury
- Kavanagh v Akhtar: Breakdown occurred in consequence of a perhaps
unforeseeable step taken by the respondent… psychiatric injury is itself regarded as
a foreseeable consequence of the physical injury inflicted on the respondent
Extent of harm suffered
- D liable provided the injuries were of a kind rf, even if more extensive or serious
than rf
- Hughes v Lord Advocate
 Lord Reid: injuries different in degree but not kind from those which were
foreseeable
- Psych injury recoverable even if more serious than rf, or exact condition not rf
- Mim v Pusey
- Nader v Urban Transit Authority (contrast with Rowe v McCartney), s74 Wrongs
Act
Egg shell skull rule
- Fundamental principle: you take P as you find P
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- D liable where P has a pre existing susceptibility which cause P to suffer far more
severe damage than would normally be the case
Dulieu v White & Sons [1901] 2 KB 669 at 681:
- D will be liable where his/her negligence triggers the onset of a pre-existing
condition in the P
- Applied in Smith v Leech Brain
- Robinson v Post Office [1974] 1 WLR1176
- Name a misnomer: egg shell skull rule only applicable where original injury as
of a kind that was reasonably foreseeable
 Jaensch v Coffey
 Rule applies to aggravations of an original injury that was rf
- Also applies to social, environmental and economic circumstances
 Kavangh v Akhtar
 Nader v Urban Transit Authority
Vicissitudes of life
- Where the p is suffering from a pre-existing condition, egg shell skull rule will
apply to prevent the onset of the condition from being viewed as too remote
- Mahoney v J Kruschich: a negligently caused injury is exacerbated by negligent
medical treatment, the exacerbation will generally be regard as a foreseeable
consequence of the original injury
- NB: If the predisposition to injury might have caused the onset of the condition in
the future, damages are reduced accordingly
 Smith v Leech Brain
- Malec v JC Hutton
TOPIC 9 – SPECIAL DUTY
SITUATIONS
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OMISSION
Introduction
- General rule: no liability for a ‘mere omission’ or ‘non-feasance’
- No duty to take affirmative action to avoid a reasonably foreseeable risk of harm
to P that was not created or increased by D (ie that P has not brought about)
- Reasonable foreseeability of the harm will not of itself support a duty of care:
 The co-existence of a knowledge of a risk of harm and power to avert or
minimize that harm does not, without more, give rise to a duty of care at
common law’ – per Gummow, Hayne and Heydon JJ in Kirkland-Veenstra v
Stuart [2009] HCA 15
 ‘The careless or malevolent person, who stands mute and still while another
heads for disaster, generally incurs no liability for the damage that the
latter suffers’: per McHugh JJ in Pyrenees SC v Day
 ‘There must be ‘special features’ of the relationship before duty to take
affirmative action is imposed: Kirkland-Veenstra v Stuart [2009] HCA 15
Definition of an ‘omission’
- A failure to act is not an omission if the risk of harm to P was created or
contributed to by P
- A mere omission refers to a failure to act in situations where the defendant did not
create or increase the risk of an injury to the plaintiff (a situation that P has not
brought about) – Agar v Hyde; Agaar v Worsley (2002) 201 CLR
Examples of failures to act that are not omissions
- Failure by the driver of a car to apply the brakes of a car: Sutherland SC v Heyman
- Failure to warn of danger in a product: Donoghue v Stevenson
- Failure by an occupier of land to manage a risk arising from the state of premises
(for example a failure to warn of the risk) Vairy and Mulligan; Neindorf v Junkovic
- A failure by a defendant who is operating an activity or business to take
reasonable steps to ensure the safety of participants; Woods v Multi-Sport Holdings
(failure to provide a warning and helmet)
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- Failure by an employer to provide safety equipment (such as safety goggles): Paris
v Stepney BC
- A failure of a medical practitioner to provide appropriate treatment or advice to a
patient with whom they’re consulting: Rogers v Whittaker
Exceptional cases where a duty to take affirmative action is required
- A duty to take affirmative action is required in some exceptional cases; where
there are special features giving rise to act
- where the relationship between P and D implies an obligation to act (protective
relationship( because of control by D and vulnerability of P (cases where P not fully
autonomous)
- For example a hospital and patient; school and pupil; prison authority and
prisoner (NSW v Bujdoso) employer and employee; parent and child (CAL No 14
Pty Ltd v Scott)
- Consider: is a doctor under a duty to go to the assistance of a stranger?
- General rule: no duty (Cf Lowns v Woods [1996])
Duty of care to act to prevent harm to P from criminal activities of third persons
- No general duty to control the actions of another to prevent harm to strangers:
Stuart v Kirkland-Veenstra [2009] HCA 15
- Modbury Triangle Shopping Centre Pty Ltd v Anzil
 Majority: general rule is no duty to prevent P from being harmed by a TP
 Direct and immediate cause was the deliberate attack by the offenders, not
the physical state or condition of the car park
 D could not control the actions of the attacks, and had no foresight
(knowledge) of the intended attack; criminal acts unpredictable
 D had not assumed responsibility for P’s safety; could reasonably act on
basis P’s employer would protect P; P in the same position as any other
member of the public
 D’s share of responsibility negligible
 Difficult to ascertain scope of the duty
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Exceptional situations
Where a duty arises to protect P from TP’s criminal acts:
a) protective relationships such as hospital and patient, employer and employee,
school and pupil; prison authority and prisoner (NSW v Bujdoso)
b) power to control TPs actions or the danger on the premises
- Adeels Palace Pty Ltd v Moubarak
- Duty owed to control access to, or continued presence on, its premise of persons
who might engaged in violent, quarrelsome or disorderly conduct
- Karatjas v Deakin University [2012] VSCA 53
Duty to act to prevent P harming self
Stuart v Kirkland-Veenstra [2009] HCA 15, per Gummow, Hayne and Heydon JJ:
- No duty of care owed by police: a duty could not be established merely because
the police had the power to act, and could reasonably foresee that Mr V would
harm himself if they did not.
- No ‘special features’ of the relationship that would impose a duty to act:
 Personal autonomy leaves it to the individual to decide whether to engage in
self-harming conduct
 P him or herself is in control; not the police
 Officers themselves did not put Mr Veenstra in harm’s way
 Officers in same position as any other passer-by who can see there is a
danger, and could take steps to minimise the risk of harm
Liability of publicans to drunken patrons
- CAL No 14 Pty Ltd: publicans do not owe a general duty of care at common law to
customers to monitor and minimize the service of alcohol or to protect customers
from the consequences of alcohol they choose to consume
Liability of public authorities for omissions
- Liability of a PA where it has failed to exercise a discretionary statutory power to
avoid a rf risk to P
- General rule: PA is not under a duty to act merely because it knows of the risk of
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harm and has the statutory power to avert the harm (Kirkland-Veenstra v Stuart
[2009] HCA 15)
- This principle enacted in s 85 Wrongs Act:
In a proceeding, the fact that a public authority exercises or decides to exercise a
function does not of itself indicate that the authority is under a duty to exercise the
function or that the function should be exercised in particular circumstances or in a
particular way.
Relevant factors determining liability laid down in a serious of HC
decisions:
- Economic loss
 Sutherland SC v Heyman
 Pyrenees SC v Day
- Personal injury
 Crimmins v SIFC
 Graham Barclay Oysters Pty Ltd v Ryan
 Kirkland-Veenstra v Stuart
Summary of ‘control factors’ from these PA cases
P must show that:
1. PA knew, or ought to have known, of a risk of harm to a specific class of persons
of which P is one; and
2. PA was in a position to directly control the risk;
3. P was vulnerable and dependent on PA to protect against the risk (risk of such
magnitude or complexity that P could not protect own interests);
4. The power was passed for the benefit of P or a class to which P belongs, rather
than for the benefit of the public generally (liability is determinate)
5. The failure by the PA was an operational matter rather than a policy
determination; and
6. The imposition of liability would not be inconsistent with the statutory scheme
Crimminins v Stevedoring Industry Finance Committee
- D owed a duty to exercise its power to protect the works from exposure to asbestos
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- Workers vulnerable and dependent on D to exercise its powers to ensure that
working conditions safe
- D knew of the risk and was in a position of power to control the risk
- Purpose of power was to prevent the kind of harm that befell P; P within the
protected class (liability not indeterminate) imposition common law liability not
inconsistent with statutory responsibilities
Warren Shire Council v Kuehne [2012] NSWCA 81
Graham Barclay Oysters Pty Ltd v Ryan
Council
- no direct control over oyster production; only general powers to control
environmental pollution
- oyster industry an intervening level of decision making
- powers were for the benefit of the public generally (and the environment), not for
the benefit of oyster consumers in particular
State
- decision to allow oyster industry to self-regulate and not to require regular
sanitary surveys were political determinations; not justiciable
Policy v Operational decisions
- Policy decisions not actionable (v day to day operational decisions
- A decision based on financial, economic, political or social environmental
considerations: Sutherland SC v Heyman
- Legislative or regulatory action
 Graham Barclay
 Sasin v Commonwealth (1984) 52 ALR 299 (policy decision to use a
particular type of safety belt in airplanes)
- Governmental decisions on budgetary allocations not actionable for example
budgetary allocation decisions re road maintenance, construction etc not
justiciable
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- CF decisions made in carrying out a particular road repair job
- Graham Barclay
Liability of highway authorities
- Highway rule – previously, immunity of highway authorities from tortious liability
for non-feasance (a failure to maintain or repair roads) Buckle v Bayswater Road
Board
- Immunity now overturned: Brodie v Singleton SC; Ghantous v Hawkesbury CC
- Apply ordinary breach factors to determine liability
Three main areas of liability
- construction and design
- repair and maintenance
- inspection
- Road management Act 2004 (Vic)
- s102: not liable for failing to act to repair a defect or deterioration in the road or
remove a hazard from the road unless the road authority had actual knowledge of
the particular risk which resulted in harm
Footpaths
Ghantous v Hawksbury CC
- PA under a duty to keep footpaths reasonably safe not in all circumstances but for
users exercising reasonable care for their own safety
- Footpaths must be safe for persons exercising a reasonable lookout: pedestrians
expected to exercise care by looking where they’re going and noting obvious
hazards such as uneven paving, tree roots or holes - Footpaths are not to be
criticized by the standards of a bowling green
- PA only liable where defect is hidden or in nature of a trap
- Ghanetous followed in a large number of lower court decisions
 Boroondara CC v Catanach [2004] VSCA 139
 Ryde City Council v Saleh [2004] NSWCA 219
LIABILITY FOR PURE MENTAL HARM
Part XI of Wrongs Act
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- Recovery for mental harm now governed by Part XI of Wrongs Act
- Mental harm means psychological or psychiatric injury: s67
- P can recover for non-economic loss for mental harm only if:
 Harm is a recognized psychiatric illness: s72, 74 Wrongs Act
 Tame, Gummow and Kirby
AND the impairment resulting from the psychiatric injury is permanent and
significant, ie greater than 10%L ss28LE, 28LF, 28LB
 Cf: Normal grieving process usually will not amount to a recognized injury
- P cn only recover for economic loss for mental harm if the harm is a recognized
psychiatric illness: s75
 For example depression, post-traumatic stress disorder, phobias
 Immediate emotional responses such as a fear, shock, sorrow, grief, anxiety
or distress will not suffice
Recovery for pure mental harm
- Pure mental harm means mental harm other than consequential mental harm:
s67 Wrongs Act
- Recovery now governed by:
 Pure mental harm: ss72 and 73
 Consequential mental harm: s74
Common law background
- Courts originally skeptical bout claims, and denied on basis of remoteness of
injury
 Chester v Waverley Corp (1939): psychiatric injury suffered by mother who
saw child’s dead body said to be too remote
- Later allowed claims to specific classes of plaintiff, for example rescuers
 MIM v Pusey (HCA, 1970)
 Janesch v Coffey (HCA, 1984)
Laid down a number of requirements:
- normal fortitude
- sudden shock
- perception with own eyes of accident or aftermath
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- designed to prevent multitude of claims
- Alcock v Chief Constable
 Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd
(HCA, 2002)
- Normal fortitude, sudden shock or direct perception of event or aftermath
relevant but not necessary requirements
Other important factors:
- pre existing relationship between P and D
- close relationship between P and victim – Gifford v Strang (HCA, 2003)
Codification of law on recovery for mental harm
Wrongs Act 1958 amendments in 2003
- pure mental harm
- s72: deals with DOC by D to P, taking into account circumstances
- s73: deals with pure mental ham in connection with another person being killed,
injured or put in danger by D
- provisions based on Tame/Annetts
- leading case on interpretation Wicks
- consequential mental harm
- s74
S72 - DOC
(1) A person (the defendant) does not owe a duty to another person (the plaintiff)
to take care not to cause the plaintiff pure mental harm unless the defendant
foresaw or ought to have foreseen that a person of normal fortitude might, in the
circumstances of the case, suffer a recognized psychiatric illness if reasonable care
were not taken
-ss3, ss1 N/A where D knew or ought to have known that P is a person of less than
normal fortitude
(2) For the purpose of the application of this section, the circumstances of the case
include the following (a) whether or not the mental harm was suffered as the result of a sudden shock;
(b) whether P witnessed, at the scene, a person being killed, injured or put in
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danger;
(c) the nature of the relationship between P and any person killed, injured or put in
danger;
(d) whether or not there was a pre-existing relationship between P and D
Wicks v SRA (NSW) (HCA, 2010)
- s72 must be considered before addressing limitation on recovering damages in
s73
- does not specify the consequences of presence or absence of any or all factors;
must be understood against the background of Tame
- unlike Tame, s72 requires that D could foresee a person of normal fortitude might
suffer psychiatric harm
- treating shock and perception as relevant considerations but not preconditions is
consistent with Tame
- s72 factors not exclusive
 Other factors include:
- personal autonomy/individual responsibility (Politarhis v Westpac
Banking Corporation [2009] SASC 96)
 Legal coherence (Tame)
Section 73: claims arising from the death or injury
s73(1): This section applies to the liability of a person (the defendant) for pure
mental harm to a person (the plaintiff) arising wholly or partly from mental or
nervous shock in connection with another person (the victim) being killed, injured
or put in danger by the act or omission of the defendant.
Meaning of shock
Wicks v SRA (NSW)
- ‘A sudden and disturbing impression on the mind or feelings’: for example,
consequences not event/cause
- Not limited to initial perceptions, but could be a series of shocking experiences for
example extended period
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s73(2):
The plaintiff is not entitled to recover damages for pure mental harm
unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in
danger; or
(b) the plaintiff is or was in a close relationship with the victim
At common law, these were not absolute requirements, but difficult for P to recover
if one not present.
Wicks v State Rail Authority (NSW)
On s73(2)(a)
- Does this extend to witnessing the aftermath of the accident?
- The death, injury or peril can take can take place over an extended period
- ‘Being injured’: inferred psych injury/further physical injuries
- ‘Being put in danger’: peril to passengers continued after the derailment;
passengers remained in peril until they had been rescued and taken to a safe place
- Cf instantaneous deaths
Is it necessary to show that the psych harm was caused by witnessing what
happened to a particular victim?
- Does not require a relationship b/w the psych injury and what happened to a
particular victim
- Where multiple victims, ‘victim’ to be read as ‘one or more persons’; otherwise
provision is unworkable where mass casualties
On s73(2)(b)
- Cf NSW provision (close family member)
- It is the closeness of the relationship not the legal status of the relationship that
should be important (Gifford v Strang)
- s73(3): P cannot recover damages if the victim would have been prevented from
bringing a claim for damages (for example, because victim was not owed a duty of
care or because had voluntarily assumed the risk)
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Application of ss72 and 73
Would Mim v Pusey, Jaesnch v Coffey and Annetts v Australian Stations Pty Ltd be
decided the same way?
Mim v Pusey
s72: Could D foresee that a rescuer of ‘normal fortitude’ would suffer
psychiatric harm in these circumstances?
YES
- Sudden shock
- Pre-existing employment relationship with MIM
- P witnessed, at the scene, victim being killed injured or put in danger; this was
unclear
s73: satisfied?
- Unclear
- P was a rescuer; victims were still in danger?
Jaensch v Coffey
s72: Could D foresee that a spouse of ‘normal fortitude’ would suffer
psychiatric harm in these circumstances?
YES
- Close relationship between P and victim (spousal)
- Sudden shock
s73: satisfied?
- Yes, ‘shock’ when saw her husband as a ‘consequence’ not an event, and over
extended period as per Wicks
- P the spouse of the victim (s73(2)(b))
Annetts v Australian Stations Pty Ltd
S72: Could D foresee that a parent of normal fortitude would suffer
psychiatric harm in these circumstances?
YES
- Pre-existing relationship between P and D
- Assurance that son would be kept safe and properly supervised
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- Close relationship between P and victim
s73 satisfied?
- Yes, ‘shock’ when saw her husband as a ‘consequence’ not an event and over
extended period as per Wicks
- Ps were the parents of the victim (s73(2)(b))
Bystanders
- Can a bystander ever recover? Wicks v SRA (NSW)
- Can a person who sees an accident on television (or over the web) ever recover?
Cases not falling within s73
- s72 still applies; and
- courts to determine other factors on a case-by-case basis
Tame v State of NSW
- Psychiatric injury not reasonably foreseeable: a person of normal fortitude would
not suffer a psych injury as a result of this minor clerical error
- Duty would be inconsistent with duties of police to investigate crimes
- Negligence liability could interfere with settled rules of defamation
Other examples of non s73 cases that are recognized categories where duty of care
owed to prevent psychiatric injury
Employer-employee
- Koehler v Cerebos (Australia) Ltd [2005] 222 CLR 44 (stress)
- Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 (bullying)
School pupil
- Cox v New South Wales [2007] NSWSC 471 (bullying)
Consequential mental harm
- Psychiatric injury consequential upon physical harm: s74
s74 Wrongs Act 1958
- P is not entitled to recover for consequential mental harm unless:
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 D should have foreseen that a person of normal fortitude might, in the
circumstances of the case, suffer a recognized psychiatric illness if
reasonable care were not taken, or
 D knew, or ought to have known, that P is a person of less than normal
fortitude and should have foreseen that P might, in the circumstances so the
case, suffer a recognized psychiatric illness if reasonable care were not
taken
 The ‘circumstances of the case’ include the injury to the plaintiff out of
which the mental harm arose: s74(2)
TOPIC 10 – DEFENCES
1. Contributory negligence
2. Voluntary assumption of risk
3. Exclusion of liability clauses
4. Volunteers and good Samaritans
5. Limitation of action
CONTRIBUTORY NEGLIGENCE
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Introduction
Wrongs Act
s26(1): If a person (the claimant) suffers damage as the result party of the
claimant’s failure to take reasonable care (contributory negligence) and partly of
the wrong of any other person or persons (a) except as provided in section 63, 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 must be reduced in such extent
as the court thinks just and equitable having regard to the claimant’s share in the
responsibility for the damage
s26(4): Claims by dependents under Part III Wrongs Act not reduced because of
negligence of decreased; damages reduced only where claimant is negligent
Three issues
Montfroy v Roads Corporation [2005] VSC 320
1. Was P negligent? Did P fail to take reasonable care for own safety?; and
- P’s negligence is a failure to reasonable take for her own safety by failing to take
reasonable steps to avoid a foreseeable risk of injury to self
Principles of breach apply to contribution
Wrongs Act
S62(1): Principles that determine breach of duty also apply to determine whether
P was contributory negligent
Therefore concepts of
- reasonable foresight of risk;
- the not insignificant nature of the risk; and
- reasonable precautions that could have avoided the risk
Are relevant
Reasonable foreseeability – D’s knowledge
Wrongs Act
S62(2)(b): The matter is to be determined on the basis of what P knew or ought to
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have known at the time
- For example court to take into account the knowledge a reasonable person in P’s
position would have, as well as any extra knowledge that P actually had
- Reflects common law: Imbree v McNeilly
s62(1): Principles that determine breach of duty also apply to determine whether
P was contributory negligent
- No requirement that P’s actions have endangered other persons
- Note that P can foresee that others will act negligently
- March v E&MH Stramare
- Sibley v Kais (1967) 118 CLR 424
Standard of care – objective
Wrongs Act
62(2)(a): Standard of care is that of a reasonable person in position of P (an
objective test)
- P’s subjective personal circumstances can not be taken into account
- Reflects common law: Joslyn v Berryman
- In the case of intoxicated passengers: Test is whether the ordinary reasonable
sober person should have known that capacity of driver impaired by reason of
intoxication (not whether drunken plaintiff should have known of this impairment)
Employer-employee relationship
- Being conscious of the onerous obligation imposed on employers to provide a safe
system of work, that takes into account that sometimes inattentiveness of workers
(McLean v Tedman (1984) 155 CLR 306)
- Lapse of attention/mistake by worker, this failure to observe the highest standard
of care is not necessarily incompatible with the conduct of a reasonable person
(Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11)
- Contributory negligence established where employee has ignored
instructions/warnings given by employer that were aimed at safeguarding
employee (Liftronic Pty Ltd v Unver)
- Make allowances for:
 Inadvertence and misjudgment
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 Inattention (repetitiveness o the task, absorption in work)
 Mistake due to fatigue
The conditions of work (for example noisy and chaotic factory)
- Czartyrko v Edith Cowan University [2005] HCA 14
Causation
- Plaintiff’s damages will be reduced where their negligence contributed to their
injuries, even though it did not contribute to the occurrence of the accident
- Damages have been reduced where the plaintiff was driving with an arm outside
the window (Hanley v Berlin [1975] Qd R 52); and
- Where the plaintiff failed to use a hand grip on a bus (Azzopardi v State
Transport Authority (1982) 30 SASR 434)
- Plaintiff’s negligence need only be a contributing cause of the injuries not the
accident, the courts will reduce damages for a failure to wear a seatbelt (Froom v
Butcher)
- Richards v Mills
 Failure to wear a seatbelt increased likelihood of spinal injury of the kind
she suffered. However, contradicted medical evidence to the effect that even
with a seat belt on, she might have sustained the spinal injuries in question.
Intoxication
- Joslyn v Berryman
 HC held in principle any fact or circumstance which a reasonable person
would know or ought to know and which tends to suggest a foreseeable risk
of injury in accepting a lift from an intoxicated driver, is relevant in
determining whether the passenger was guilty of contributory negligence in
accepting the lift
Mental disability
- Must be disregarded: court must apply the standard of a person without the
plaintiff’s mental disability
- Town of Port Hedland v Hodder [No 2] [2012] WASCA 212
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 A plaintiff’s mental disability must be disregarded when determining
contributory negligence
 Issue – whether the plaintiff’s damages should be reduced for contributory
negligence
 Trial judge acted on basis that he had to apply the standard of a person
without the plaintiff’s mental disability and ordered a reduction of damages
of 10% for contributory negligence
Children
- At common law, children not held to adult standard: Joslyn v Berryman
- Objective test: children expected to exercise the degree of foresight and prudence
reasonably to be expected of a child of that age: Kelly v Bega County Council
Objective
- s62(2): confirms the test is an objective test
- Authorities interpreting s62(2): child not held to adult standard, child’s age
relevant when determining whether contributory negligent (Doubleday v Kelly)
- Reasonable standard of a child of that age; the reasonable or normal intelligence,
maturity, development and experience of a child of that age
- Though child’s actual knowledge of the risks relevant: s62(2)(b)
- Kelly v Bega Valley County Council (25% reduction)
- Jolley v Sutton LBC (25% reduction)
- Doubleday v Kelly (No reduction)
Doctrine of alternative danger
- P’s conduct will be judged by reference to all circumstances, including that
situation in which the P is placed in a position of choice b/n two dangers: In such
cases, the reasonableness of the P’s acts is judged by weighing the degree of
inconvenience and risk to which the P was subjected due to D’s negligence against
the risk P took to escape it – The Bywell Castle (1879)
- Where appropriate, courts must take into account P has acted in the agony of the
moment created by D’s negligence: Caterson v Commr-for Railways
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2. If so, was P’s negligence a cause of the damage? and
- D must prove P’s negligence contributed to the injures – not necessarily the
accident
- For example failure to wear a seatbelt or crash helmet amounts to contributory
negligence where P would not have suffered injury (or would have suffered less
injury) if a seatbelt had been worn (Froome v Butcher)
- P’s negligence must have been a real cause of the injuries (Jones v Livox Quarries)
3. If yes, what reduction/appointment in P’s damages would be just and
equitable having regard to P’s share in the responsibility for that damage?
- A question of fact in each case – no binding precedents
To determine apportionment:
(a) The culpability of each party in terms of their respective departure from
the standard of the reasonable person; and
Did P’s actions endanger others?
- Pennington v Norris (pedestrian’s damages reduced by 20%)
v March v Stramare (drunken driver’s damages reduced by 70%
- Significance of P’s negligence vis a vis D’s negligence: enduring default
- Kelly v Bega County Council (25% reduction)
- Paltidlis v The State Council of the YMCA of Vic [2006] VSCA 122 (25% reduction)
(b) The relative importance of the acts of the parties in causing the injuries
- D primarily responsible where P contributed to injuries but not accident
- Tf lower reduction generally made where P’s actions only put themselves at risk
- For example injuries caused by failure to wear a seatbelt accidents – 20-30%
reduction
- Froom v Butcher
100% reduction
- At common law, P’s damages could not be reduced to nil, for example there could
not be a finding of 100% contributory negligence
- 100% reduction thought to be incompatible with finding of negligence by D
- Wynbergen v Hoys Corporation
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s63: Court can reduce damages by 1005 if it thinks its just and equitable to do so
VOLUNTARY ASSUMPTION OF RISK
To one who is willing no legal wrong is done. D must show that P 1. Had full knowledge of the nature and extent of the risk: Imbree v McNeilly
- Knew of all the facts constituting the danger: Sloan v Kirby, Scanlan v ACC
- Appreciated the exact nature and extent of the danger: Monie v Cth, Scanlan v ACC
2. Freely and voluntarily… impliedly agree to incur the injury from the
dangerous activity
- Imbree v McNeilly, Kent v Scattini,
Actual and subjective knowledge of risk
- In effect, P must show to have impliedly consented to the risk of injury that
occurred and waived their right to bring action
- Actual, subjective, knowledge required (Scanlan v American Cigarette Company
(Overseas) Pty Ltd)
-Not sufficient that P knew there was danger involved in the activity, or engaged in
a dangerous recreational past time; p must have a full appreciation of the full
extent of the specific risk that occurred
- Randwick City Council v Muzic
- Paltidis v The State Council of the YMCA of Vic
Employer-employee relationship
Smith v Charles Baker & Sons
 The principle that the plaintiff must have a real choice in waiving the
protection of the duty owed to him/her by the defendant, it is only on very
rare occasions that the defense of voluntary assumption of risk will be
successful when pleaded by an employer
Obvious risk:
Wrongs act
s54: Change to onus of proof in obvious risk cases where - D raises defense, and
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- The risk of harm is an obvious risk, then
- P is presumed to have been aware of the risk, unless
- P proves that was not aware of the risk
About
- Does not alter the requirement that P must have known and fully appreciated the
full extent of the risks and consented to them. Merely has a procedural effect:
merely reverses the onus of proof (Paltidis v The State Council of the YMCA of Vic)
- s54 does not apply to reverse onus of proof in cases where risk not obvious
- s54(2): s54 does apply where the service was a professional or health service, or
for work done by another person
s53: Definition of obvious risk (1) A risk that would have been obvious to a reasonable person in P’s position
Must take into account the fact that P is a child (Doubleday v Kelly)
(2) Includes risks that are patent or a matter of common knowledge
(3) Can include risks that have a low probability of occurring
(4) A risk that is not prominent, conspicuous or physically observable
(5) Does not include a risk created because of a failure to properly maintain,
replace, prepare or care for a thing that causes the injury, unless the failure itself is
an obvious risk
For example – consider a situation where a parachute falls to open
A drunk passenger in a car driven by a drunk driver
Voluntary assumption of risk
- Banovic v Perkovic
- Imbree v McNeilly
EXCLUSION OF LIABILITY CLAUSES
- It is possible to exclude liability under contractual principles
- Issue is whether P is aware of terms: Neil v Fallon
- Statutory reforms operate to limit exclusion of liability
- Statutory reform in the from of the Australian Consumer Law (ACL) as enacted in
co-operative Cth and State legislation, namely:
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 Provisions of ACL appear in Schedule 2 Competition and Consumer Act 2010
(Cth) (CCA)
 Given legislative effect in Victoria by s8 Australian Consumer Law and Fair
Trading Act (Vic) (FTA)
ACL provisions limit exclusion of liability
- ACL provides a consumer guarantee that services will be rendered with due care
and skill
- s60 sch2 CCA: If a person supplies, in trade or commerce, services to a consumer,
there is a guarantee that services will be rendered with due care and skill.
- Clauses attempting to exclude these consumer guarantees rendered void (s64
CCA)
Recreational Service Providers in ACL
- s139 CCA and s22 FTA permits providers of recreational services to exclude/limit
liability
- s22 FTA:
 Recreational services means services facilitating participation in:
a) A sporting activity or a similar leisure time pursuit; or
b) Any other activity that involves a significant degree of physical exertion
or risk and is undertaken for the purposes of recreation, enjoyment or
leisure (s22(4))
The exclusion or limitation of liability might be incorporated into a form signed by
the P or by way of sign erected prominently on the premises. Will the
exclusion/limitation of liability apply here?
- Depends on 2 matters:
 That the term was brought to the attention of the purchaser prior to the
supply of the services: s22(2)(e) FTA
 That the wording is in a certain form, a prescribed in Australian Consumer
Law and Fair Trading Regulations 2012 (Vic), s6, schedules 2 and 3
Required form of exclusion of liability
Schedule 2 Regulation 6:
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WARNING: If you participate in these activities your rights to sue the supplier under
the Australian Consumer Law and Fair Trading Act 2012if you are killed or injured
because the activities were not supplied with due care and skill or were not
reasonably fit for their purpose, are excluded, restricted or modified in the way set
out in or on this sign/notice.
NOTE: The change to your rights, as set out in or on this sign notice, does not apply
if your death or injury is due to gross negligence on the supplier’s part. Goss
negligence, in relation to an act or omission, means doing the act or omitting to do
an act with reckless disregard, with or without consciousness, for the consequences
of the act or omission. See regulation 5 of the ACL and FTA 2012 and s22(3)(b) of
the ACL and FTA 2012.
- 6 schedule 2 re sign/notice and schedule 3 re form/waiver
- The regulations merely prescribe the wording of the warning that must
accompany the limitation or exclusion; it does not specify that the service provider
must exclude or limit liability in any particular way
- Waiver does not apply in Vic where the supplier acted with gross negligence
(reckless disregard for the consequences of the act or omission): s22(3)(b)
VOLUNTEERS AND GOOD SAMARITANS
Volunteers
- Volunteers are usually those who receive no remuneration for the work or are
remunerated for the work but within limits prescribed by regulation
- Provided they act in good faith, volunteers do not incur personal civil liability for
acts and omissions done in the course of community work organized by a
community organization, or as an offense holder of a community organization
Good Samaritans
Wrongs Act 1958 (Vic)
s31(1) (a) No action will lie against a drunk and reckless good Samaritan who in
good faith has caused a ‘pre-natural injury; physiological or psychiatric injury,
disease; aggravation, acceleration, or recurrence of an injury or disease to a
hapless person;
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s31(1)(b) apparently at risk of death or injury or apparently injured
LIMITATION OF ACTIONS
- The limitation period for bringing an action in tort to recover damages that
relate to the death or personal injury of a person was previously six years from the
date on which the cause of action arose (or in the case of minors, six years after
their 18th birthday)
Limitation of Acts Act 1958 (Vic)
s27D Personal injury actions shall not be brought after the expiration of
whichever of the following periods is he first to expire:
a) The period of 3 years from the date on which the cause of action is discoverable
by the plaintiff;
b) The period of 12 years from the date of the act or omission alleged to have
resulted in the death or person injury with which the action is concerned (long-stop
limitation period)
s27E Person with disability (including minors) at the date of the relevant
act or omission:
- limitation period is six years from the date on which the cause of action is
discoverable by the plaintiff; or
- in any event within 12 years from the date of the relevant act or omission
s27F Provides that:
(1) A cause of action is discoverable by a person on the first date that the
person knows or ought to have known the following facts:
(a) the fact that the death or personal injury concerned has occurred (Stingel v
Clark [2006] HCA 37 – 31 year delay);
(b) the fact that the death or personal injury was caused by the fault of the
defendant (Vellar v Spandideas: P knew all the relevant factors necessary for the
formulation of a cause of action, including the culpability or blameworthiness of
the D)
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(c) in the case of personal injury, the fact that the personal injury was sufficiently
serious to justify the bringing of an action on the cause of action
(2) A person ought to know of a fact at a particular date if the fact would
have been ascertained by the person had the person taken all reasonable
steps before that date to ascertain the fact
(3) In determining what a person knows or ought to have known, a court
may have regard to the conduct and statements, oral or in writing, of the
person.
(4) To remove doubt, a cause of action that arises under Part III of the
Wrongs Act 1958 is not discoverable before the date of death of th
deceased.
s27K A court may, upon application, grant an extension of a limitation
period where it decides that it is just and reasonable to do so. Court must
have regard to, inter alia:
- length of and reasons for the delay of the plaintiff,
- the extent to which the defendant might have been prejudiced by the delay,
- whether the passage of time ha prejudiced a fair trial of the claim, and
- the nature and extent of the plaintiff’s loss
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TOPIC 11 – PRIVATE NUISANCE
2 Main Types:
1. Material Damage
2. Intangible Interferences
(Noise, Smell, Fumes, Vibrations, Dust; Encroaching tree branches; harassing phone
calls)
Differs from Trespass to Land in that it:
-Covers indirect interferences as well as direct interferences
-There is no need for contact with the land
Generally: Requirement of an emanation. Emanates from an adjoining property
“Unusually sensitive” landowners are not generally protected
General Principles:
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-Interference must be reasonably foreseeable
-Liability is strict
-Interference does not necessarily have to be harmful, nor result in a diminution in
the value of the property
-Personal injury not actionable in Nuisance (use negligence)
PRIVATE NUISANCE
Nature of the tort and the type of interests protected
- Contrasts public nuisance = a crime involving unlawful conduct that endangers
lives, safety, or property of the public that has an effect of obstructing members of
the public as a group in the exercise or enjoyment of their CL rights
- Safeguards against unlawful interferences not only with possessory rights in land
that a person has by virtue of lawful occupation, but also rights that one may
possess over another person’s land (Gartner v Kidman)
 Affects public at large
 Actionable by A – G or an individual who has suffered particular damage
over and above that of other members of the public: Brodie v Singleton SC
(collapse of bridge forming part of a road potentially a public nuisance)
 How many individuals must be affected? No definitive test: A-G v PYA
Quarries [1957] 2 QB 169
Definition and background
- A substantial and unreasonable interference with the use and enjoyment of land
(Goldman v Hargrave (PC, 1967)
- Protects P’s rights to the use and enjoyment of land for example concerned with
property rights
- Nuisance may arise from an indirect interference cf trespass to land only arises
from direct inference
- Protects substantial and unreasonable interferences cf trespass to land where
interference itself is the gist of the action
- Protects interferences that are tangible and intangible cf trespass to land that
protects interference with land
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ELEMENTS
1. Title to sue
- P must have a right to exclusive possession of the land, locus standi
- Generally shown by a proprietary interest
 Oldham v Lawson (VSC, 1967)
 Hunter v Canary Wharf (HL, 1997)
 Stockwell v Victoria (VSC, 2001
- A license granting exclusive possession will suffice
 Animal Liberation (Vic) Inc v Gasser (VSC, 1991)
2. What is Interference?
- A nuisance which affects private individuals in their use and enjoyment of land
- Interests protected:
a) Material intangible damage
b) Intangible interferences
- St Helen’s Smelting Co v Tipping
- Fault element: interference must be reasonably foreseeable
 Cambridge Water Co v Eastern Counties Leather PLC (HL, 1994), Wagon
Mound (No.2)
- Liability is strict – tort is not based on negligence
 Through cf occupier’s liability for nuisances not created by it, Fennell v
Robson Excavations [1977] 2 NSWLR 486
-The inference does not necessarily have to be harmful, nor result in a diminution in
the value of the property
- Personal injury not actionable
 Hunter v Canary Wharf
a) Material damage
- Damage to buildings or chattels on the land must be more than trivial
 Damage by fire (Hargrave v Goldman) or flood (Corbett v Pallas)
 Damage by tree roots (Marshall v Berndt [2011] VCC 384)
 Undermining the support of land (Kebewar Pty Ltd v Harkin)
 Damage caused by golf balls (Lester-Travers v City of Frankston)
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 Damage to paintwork by acid smuts (Halsey v Esso Petroleum)
-The locality of the land is irrelevant; St Helen’s Smelting Co v Tipping; Halsey v
Esso Petroleum
b) Intangible interferences
- Common examples of intangible interferences that are actionable in nuisance:
 Noise, smells, vibrations, smoke and fumes. Dirt/dust (Halsey v Esso
Petroleum; Munro v Southern Dairies)
 Encroaching tree branches (Lemmon v Webb)
 Harassing telephone calls (Khoransidijian v Bush)
 Planes flying overhead (Dennis v Ministry of Defense)
 Watching and besetting (Animal Liberation (Vic) Inc v Gasser; Raciti v
Hughes)
 Cricket balls or golf balls hit onto property (Miller v Jackson; Lester-Travers
v City of Frankston; Campbelltown Gold Club Limited v Winton)
- Nuisance normally protects against emanations from land; not interferences
caused by the mere presence of buildings on the land
- Hunter v Canary Wharf
- Interference with TV reception
- Obstruction of a view
- Overlooking (Victoria Park Racing and Recreation Grounds Co Ltd v Taylor)
- Unless becomes ‘watching and besetting’ Raciti v Hughes
- Cf obstruction of light
- Activities of neighbors on their own property nor resulting in emanations not
generally actionable (Hunter v Canary Wharf)
- Eccentricity of neighbors unless perhaps the neighbor is operating a brothel
(Thompson-Schwab v Costaki)
- Unsightliness of neighbor’s property
3.Interference must be substantial and unreasonable
- The interference must be unreasonable and seriously interfere with P’s use and
enjoyment of the land: Goldman v Hargrave; Hunter v Canary Wharf
- St Helen’s Smelting Co v Tipping (1865)
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 Tangible interference must be more than trivial
 Intangible interference must be substantial or unreasonable taking into
account a number of factors
-Whether the interference is unreasonable is determined from the perspective of the
ordinary and reasonable landowner
- Bamford v Turnley – under the neighborhood principle, if acts complained of are
shown by the defendant to be:
 Necessary for the common and ordinary use and occupation of land and
houses; and
 Done with proper consideration for the interests of neighboring occupiers.
These principles are subjected to express or implied statutory authority to commit a
nuisance.
- Ordinary household activities are not actionable (Southwark LBC v Turner)
- The unusually sensitive landowner is not generally protected
 Hollywood Silver Fox Farm v Emmett
 McKinnon Industries v Walker
Considerations to determine whether the inference is reasonable (Halsey v
Esso Petroleum)
 Locality (for example the character of the neighborhood)
- Halsey v Esso Petroleum
- Munro v Southern Dairies
 Timing
 Frequency (for example whether likely to be repeated)
 Duration
 Harmful nature of the interference
- Campebelltown Golf Club Ltd v Winton
 Whether part of ordinary give and take
- Southwark LBV v Tanner
 D’s motives
-Hollywood Silver Fox Farm v Emmett
- Raciti v Hughes
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 Generally the wider public interest in D’s activities not taken into account
(but might be relevant to remedies)
-Dennis v Ministry of Defense
 Neighborhoods change in character over time, and it is the character of the
neighborhood at the date of the nuisance that is relevant
 It is not defense that P came to the nuisance
- Munro v Southern Dairies
- Millier v Jackson
- Coventry v Lawrence
- Nor will it reduce damages (Campbelltown Golf Club Ltd v Winton)
 Nor is p expected to change ordinary ways of life to avoid a nuisance
(Lester-Travers v City of Frankston)
4. Who is liable?
- The weight of authority would appear to support the view that the creator of a
nuisance will be held liable even where the creator has no proprietary interest in
the land from when the nuisance emanated
- Fennell v Robson Excavations
The occupier of the premises form which the nuisance emanates even if the
occupier did not create the nuisance, where the occupier:
a) is vicariously liable for the activities of the creator
b) authorized in activity of which the nuisance is an inevitable by-product
- De Jager v Payneham & Magil Lodges Hall Inc
c) becomes aware of the nuisance and fails to take reasonable steps within its
control to remove the nuisance
- Sedleigh Denfield v O’Callaghan
- Campbelltwon Golf Club Ltd v Winton
- Applies to a nuisance created by a natural cause (Hargrave v Goldman; City of
Richmond v Scantelbury)
Application of Wrongs Act unclear
- Southern properties Pty Ltd v Executive Director of the department of
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Conservation and Land Management [No 2] [2010] WASC 45
- SS45 WA: This part applies to any claim for damages resulting from negligence,
regardless of whether the claim is brought in tort, in contract under statute or
otherwise.
Landlords not liable for nuisances of tenants, unless:
- L actually authorized the nuisance: Harris v James (1876); or
- The creation of the nuisance was for L so highly likely (certain or virtually certain
to result) that L must be taken to have impliedly authorized it: Peden Pty Ltd v
Bortolazzo [2006] ACA 350
- Landlord does not have to take steps to end tenancy or to alleviate nuisance once
becomes aware of it
5. Defenses
a) Consent
- Clarey v Womens College
b) Statutory authority
The state imposes a duty to engage in the activity of which the nuisance is
an inevitable result
- But must show that did not act negligently
- Southern Properties (WA) Pty Ld v Executive Director of the Department of
Conservation and Land Management [No 2] [2010] WASC 45
The statute authorizes D to engage in the activity and specifies the manner
and location of the activity and the nuisance is an inevitable result of that
activity
- Question is whether the nuisance could have been avoided by the proper exercise
of the statutory power
-But where statute merely confers authority, but dos not specify manner of
performance, statutory authorization not a defense
- Lester-Travers v City of Frankston (VSC, 1970)
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The statute confers a power to perform the activity, and leaves the manner
of performance to the defendant
- The defendant will be liable where it could have avoided the nuisance by the
proper exercise of the statutory power
- Southern Properites (WA) Pty Ltd v Executive Director of the Department of
Conservation and Land Management [No 2] [2010] WASC 45
- Lester – Travers v City of Frankston
-A planning permit is not a defense
 Domachuk v Feiner
 Conventry v Lawrence
 Though the terms of a planning permit might be of value in determining
what is reasonable and might mean that an award of damages rather than
an injunction is the appropriate remedy
 Coventry v Lawrence
-Contributory negligence not generally a defense (Campbelltown Golf Club Ltd v
Winton)
6. Remedies
Abatement using self help
 Not generally favored
 P must be careful not to commit another tort, example trespass
 Gazzard v Hutchenson
 The costs of abatement are not recoverable unless taken to repair actual
damage
Damages
 Property damage
 General damages for the interference
 Diminution in value of property
 Consequential economic losses for example loss of profits
 Reasonable measures taken to mitigate nuisance
 Aggravated and exemplary damages are available (Gazzard v Hutcheson)
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Injunction
 If damages will suffice no injunction
 Terms of injunction might be limited for example (Seidler v Luna Park
Reserve Trust)
 Wider public interest might result in refusal of injunction in favor of
damages (Dennis v Ministry of Defense)
 Infrequent interferences less likely to support injunction (Challen McLeod
Country Golf Club)
TOPIC 12 – BREACH OF
STATUTORY DUTY
BREACH OF STATUTORY DUTY
Introduction
- The BOSD action is an action that is independent of negligence – though it often
will be pleaded concurrently with negligence
- Not all breaches of statutory duty give rise to an action for BOSD. The question is
whether Parliament intended that the duty be enforceable in a private tort action.
Definition
- BOSD action arises ‘if it can be shown that the statutory duty was imposed for the
protection of a limited class of the public, and parliament intended memebrs of that
class to have a private right of action for breach of that duty: X (Minors) v
Bedforshire CC (HL, 1995)
- 6 indicators that point to statute conferring BOSD
- Court will presume that no private action is intended where an adequate penalty
exists in the legislation and where the duty is directed to the protection of the
public generally, rather than a specific class of persons (Phillips v Britannia
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Hygienic Laundry [1923] KB 832)
ELEMENTS
1. The statute intends to confer a right to bring a private tort action
Whether the statute confers a private tort action depends on 3 factors including:
a) Whether the statute was enacted for the protection of a specific and
limited class of persons, as opposed to the public generally
- BOSD not available where the legislation establishes a regulatory system or a
scheme of social welfare for the benefit of the public generally
- Must be a very limited and specific duty, as opposed to general administrative
functions imposed on public bodies and involving the exercise of administrative
directions
 X (Minors) v Bedfordshire CC
 Phillips v Britannia Hygienic Laundry Co
-BOSD available only where legislation was passed for the benefit of a particular
limited class of persons
 Anderson v Mackellar CC NSWSC, 1968 (breach of a by-law requiring
owners of land to ensure they did not erode the support for adjoining
buildings actionable by adjoining owners)
 Seiwa Australia Pty Ltd v Owners Srata Plan 35042 (NSWSC, 2006) (breach
by an owners corporation of a duty to maintain common property
actionable by unit owners)
-A breach of specific safety obligation on an employer to usually found to support
an action for a BOSD by an employee
 Betts v Whittingslowe (HCA, 1945)
 Duma v Mader International Pty Ltd [2013] VSCA 23
b) Whether the statute provides for a penalty or other means of enforcing
the duty, presumption that was the only means of enforcement
contemplated
 X Minors v Bedfordshire CC at 731
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 Anderson v Mackellar (penalty small compared with the damage likely to be
suffered) but penalty must be adequate
c) The imposition of civil liability must be consistent with the policy of the
legislation
 X Minors v Bedforshire CC
 S84(3): Where BOSD action is against a public authority, the imposition of
liability must be compatible with the provisions and policy of the statute
2. The statute imposes imposes a duty on D
- D must be obliged not merely empowered or authorized, to do the act
- The duty must be imposed on D, not an independent contractor or employee of D
- Note that vicarious liability does not apply where the duty is imposed on the
employee
 Darling Island Stevedoring v Long
 Slivak v Lurgi (ustralia) Pty Ltd [2002] HCA 6
- Held that the design was safe and there is no evidence to suggest that the
fabrication work and erection work was not to be carried out by a
component contractor
 Occupational Health and Safety Act 2004 (Vic), s21
3. P is within the class of persons protected by the statutory duty
- The legislation must be construed to determine the class of persons it intends to
protect
 Cutler v Wandsworth Stadium Ltd [1949] AC 398
 Mummery v Irvings
 Cf Betts v Whittingslowe
 Wynn Tresidder Managmeent v Barkho
4. The harm suffered by P is within the class of risks to which the statute is directed
- The harm suffered must be of a type the legislation was designed to avoid
 Mummery v Irvings
 Gorris v Scott
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5. D is in breach of the statutory duty
- Dependent on the wording of the legislation
- The legislation might impose strict liability (for example D liable even if not
negligent and could not have taken precautions to avoid the harm)
 Galashiels Gas Co v O’Donnell [1949] AC 275 (statute imposed a strict
obligation to ensure the lift was in good working condition, tf D liable even
in absence of negligence)
 Wynn Tresidder Management v Barkho
 Seiwa Australia Pty Ltd v Owners Separate Plan 35042
- Cf if duty is to do what is reasonably practicable
Wrongs Act 1968 (Vic)
s44: BOSD a claim for damages resulting from negligence? Not decided in Wynn
Tresidder
s84 (2) – applies to claims against a public authority for a breach of statutory
duty. It provides that a public authority is only liable where the act or omission was
in the circumstances so unreasonable that no public authority having the functions
of the authority in question could properly consider the act or omission to be a
reasonable exercise of its functions.
s84 (3) – Further, imposition of liability must be compatible with the provisions
and policy of the statute.
6. P’s injury was caused by D’s breach
- Use but for test: legal causation and other
 Duma v Mader International Pty Ltd
- Cases involving a failure to obtain a license or qualification – a presumption that
machine/device operated negligently
 John Pfeiffer Pty Ltd v Canny
7. Causation
- As with negligence actions, the plaintiff must show, on the balance of probabilities,
that the breach of statutory duty was a cause of the plaintiff’s injuries (John
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Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218)
- Court held that causation will only be inferred from a breach of statutory duty
where the link between the breach and injury is obvious; that was not the case of
these facts (Duma v Mader International Pty Ltd)
DEFENCES
Plaintiff’s conduct
-Where the statute casts a duty in the same terms on both employer and employee,
the defendant employer will escape liability in an action for breach of the statutory
duty only if s/he can show the plaintiff employee’s conduct was the sole reason for
the breach – that is, that there was no independent fault on the part of the
defendant
- Nicol v Allyacht Spars Pty Ltd
 Nicol was not disabled from complaining of the failure to provide safe
system of work on the ground that the system had been devised by him
because it was not solely his fault
 It was in part his fault in acquiescing in the use of the system and helping to
put it into operation. But it was also very much the fault of those who
devised the system
-Where an employer is put in breach of statutory duty by reason of conduct of an
employee and nothing done or omitted by the employer contributes to the breach,
the employee is excluded from the class of persons for whose benefit the statutory
duty was imposed and so has no cause of action for breach of duty (HC Buckman &
Son Pty Limited v Flannagan, Nicol v Allyacht Spars Pty Ltd, Andar Transport Pty
Ltd v Brambles Ltd)
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