Australian Torts Law
Fourth Edition
Amanda Stickley
LLB, Grad Dip Leg Prac, LLM, Grad Cert Ed (Higher Ed) (QUT)
Associate Professor, Faculty of Law Queensland University of Technology
Senior Fellow, Higher Education Academy (UK)
LexisNexis Butterworths
Australia
2016
AUSTRALIA
ARGENTINA
AUSTRIA
BRAZIL
CANADA
CHILE
CHINA
CZECH REPUBLIC
FRANCE
GERMANY
HONG KONG
HUNGARY
INDIA
ITALY
JAPAN
KOREA
MALAYSIA
NEW ZEALAND
POLAND
SINGAPORE
SOUTH AFRICA
SWITZERLAND
TAIWAN
UNITED KINGDOM
USA
LexisNexis
LexisNexis Butterworths
475–495 Victoria Avenue, Chatswood NSW
2067
On the internet at: www.lexisnexis.com.au
LexisNexis Argentina, BUENOS AIRES
LexisNexis Verlag ARD Orac GmbH & Co KG,
VIENNA
LexisNexis Latin America, SAO PAULO
LexisNexis Canada, Markham, ONTARIO
LexisNexis Chile, SANTIAGO
LexisNexis China, BEIJING, SHANGHAI
Nakladatelství Orac sro, PRAGUE
LexisNexis SA, PARIS
LexisNexis Germany, FRANKFURT
LexisNexis Hong Kong, HONG KONG
HVG-Orac, BUDAPEST
LexisNexis, NEW DELHI
Dott A Giuffrè Editore SpA, MILAN
LexisNexis Japan KK, TOKYO
LexisNexis, SEOUL
LexisNexis Malaysia Sdn Bhd, PETALING JAYA,
SELANGOR
LexisNexis, WELLINGTON
Wydawnictwo Prawnicze LexisNexis, WARSAW
LexisNexis, SINGAPORE
LexisNexis Butterworths, DURBAN
Staempfli Verlag AG, BERNE
LexisNexis, TAIWAN
LexisNexis UK, LONDON, EDINBURGH
LexisNexis Group, New York, NEW YORK
LexisNexis, Miamisburg, OHIO
National Library of Australia Cataloguing-in-Publication entry
Author:
Title:
Edition:
ISBN:
Notes:
Subjects:
Dewey Number:
Stickley, Amanda.
Australian Torts Law.
4th edition.
9780409342048 (pbk).
9780409342062 (ebk).
Includes index.
Torts — Australia — Textbooks.
346.9403
© 2016 Reed International Books Australia Pty Limited trading as
LexisNexis.
First edition 2005. Second edition 2009 (reprinted 2010, 2011 and 2012).
Third edition 2013 (reprinted 2014 and 2015).
This book is copyright. Except as permitted under the Copyright Act 1968
(Cth), no part of this publication may be reproduced by any process,
electronic or otherwise, without the specific written permission of the
copyright owner. Neither may information be stored electronically in any
form whatsoever without such permission.
Inquiries should be addressed to the publishers.
Typeset in Myriad Pro and Minion Pro.
Printed in China.
Visit LexisNexis Butterworths at www.lexisnexis.com.au
Preface
The law of torts covers such a wide range of actions, that when undertaking
research and writing, it looms as a very daunting task. However, it also allows
research into areas that you rarely consider, and given the variety and
constant change, means that it is always interesting.
This is the fourth edition of Australian Torts Law, and it follows the same
format as the previous edition, attempting to examine the law as it currently
operates and provide some historical context. As with previous editions, the
aim is to provide a comprehensive coverage of the law of torts in a way that
students may appreciate.
The action of negligence continues to dominate the monograph, as it does
in all torts texts, and with the passing of nearly 15 years since the civil liability
legislation was introduced, the case law continues to grow as courts grapple
with the subtle differences and issues of interpretation. With the ease of
access to unreported judgments and the latest of cases online, it is difficult to
know when enough is enough, but hopefully a sufficient range of cases have
been included to demonstrate the points of law without going overboard.
Extracts of legislation have been included where possible — always an issue
when there are usually differences between the eight Australian jurisdictions.
Teaching torts law to first-year students at the Queensland University of
Technology remains the favourite part of my job, and I thank my students for
their feedback over the years. My thanks also go to Jocelyn Holmes at
LexisNexis Butterworths for her support and encouragement. My daughter
Jaimie is now four years older since the last edition and assures me that she
needs no acknowledgement this time.
The law is that as generally stated at April 2016, with minor additions
during the editing of the book.
Amanda Stickley
Table of Cases
References are to paragraph numbers
A
A v Hoare [2008] 1 AC 844 …. 14.43
— v New South Wales (2007) 230 CLR 500; 233 ALR 584 …. 1.9, 7.11, 7.13, 7.16, 7.17
A (Children) (Conjoined Twins: Surgical Separation), Re [2000] 4 All ER 961 …. 6.44
A, DC v Prince Alfred College Inc [2015] SASCFC 161 …. 20.46
A G Spalding & Bros v A W Gamage Ltd (1915) 84 LJ Ch 449 …. 24.6, 24.14, 24.30
— v — (1918) 35 RPC 101 …. 24.6, 24.14, 24.30
ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1; 309 ALR 445 …. 19.22, 19.28,
19.31, 19.45
Abraham bht Abraham v St Mark’s Orthodox Coptic College [2006] NSWSC 1107 …. 9.72
AC Billings & Sons Ltd v Riden [1958] AC 240 …. 9.21
Ace Insurance Ltd v Trifunovski (2011) 284 ALR 489 …. 20.9
ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 …. 9.38
ACN 087528774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559 ….
3.27, 3.31
AD & SM McLean Pty Ltd v Meech (2005) 13 VR 241 …. 20.71
Adam v Ward [1917] AC 309; [1916–17] All ER Rep 157 …. 22.29, 23.33, 23.36, 23.39, 23.40, 23.46,
23.50
Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 …. 15.16, 15.33
— v Shire of Taringa [1927] QSR 163 …. 25.70
— v Vesco Nominees Pty Ltd [2004] QDC 305 …. 14.9
Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693 …. 21.15
— v Motor Vehicle Insurance Trust (1957) 58 WALR 56 …. 1.27, 11.13
Addie v Dumbreck [1929] AC 358 …. 9.9
Addis v Crocker [1961] QB 11 …. 23.28
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 …. 9.24, 11.42, 12.22, 12.33, 12.34,
12.41
Adelaide Chemical Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 …. 9.122
Admiralski v Stehbens [1960] Qd R 510 …. 15.121, 15.123
Admiralty Commissioners v Owners of SS Amerika [1917] AC 38 …. 17.5
— v SS Valeria [1922] AC 242 …. 15.31
— v Susquehanna (Owners) [1926] AC 655 …. 5.93
Agar v Hyde (2000) 201 CLR 552; 173 ALR 665 …. 10.139, 13.66
Ahern v R (1988) 165 CLR 87; 80 ALR 161 …. 24.63
Ahmedi v Ahmedi (1991) 23 NSWLR 288 …. 15.75
Aircraft Technicians of Australia Pty Ltd v St Clair [2011] QCA 188 …. 15.72, 20.52
Airedale NHS Trust v Bland [1993] AC 789 …. 6.25
Airworks (New Zealand) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641 …. 20.24
Aitken Agencies Ltd v Richardson [1967] NZLR 65 …. 5.50
Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; 268 ALR 409 …. 22.60, 23.33, 23.44
Alameddine v Glenworth Valley Horse Riding (2015) 324 ALR 355 …. 13.70
Albrecht v Patterson (1886) 12 VLR 597 …. 22.15, 22.16
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 …. 9.101, 20.13, 20.68
Alcan Give Pty Ltd v Zabic (2015) 325 ALR 1 …. 12.1
Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 …. 18.6, 18.14, 18.16
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 …. 10.57
Aldersea v Public Transport Corporation (2001) 3 VR 499 …. 19.88
Alderslade v Hendon Laundry Ltd [1945] 1 All ER 244 …. 13.104
Aldred v Benton (1610) 9 Co Rep 57; 77 ER 816 …. 25.25
Alexander v Mayor and Corporation of Sydney (1861) 1 SCR (NSW) App 26 …. 25.92
— v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221 …. 23.6
— v Perpetual Trustees WA Ltd (2003) 216 CLR 109; (2004) 204 ALR 417 …. 21.17
Alford v Magee (1952) 85 CLR 437 …. 13.3
Ali v Nationwide News Pty Ltd [2008] NSWCA 183 …. 23.118, 23.139
Al-Kandari v J R Brown & Co [1988] QB 665 …. 9.104
Allen v Chadwick (2014) 68 MVR 82 …. 13.45
— v — (2015) 326 ALR 505 …. 13.29, 13.45
— v Flood [1898] AC 1 …. 24.54, 24.60, 24.81
— v Gulf Oil Refining Ltd [1981] AC 1001 …. 6.49, 25.56, 25.57, 25.101
— v Wright (1838) 8 C & P 522; 173 ER 602 …. 3.70
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; 215 ALR 385 …. 12.31
Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292 …. 22.15
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 130 ALR 469 ….
24.46, 24.48
Almeroth v W E Chivers & Sons Ltd [1948] 1 All ER 53 …. 25.59
Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR 576 …. 12.50
— v King (2011) 35 VR 280 …. 15.152
— v New South Wales (2003) 199 ALR 596; 77 ALJR 1509 …. 21.17, 21.23
— v — (2004) Aust Torts Reports ¶81-749 …. 10.123, 10.128
Amaca Pty Ltd (under NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW
administered winding up) v Booth (2011) 283 ALR 461; 86 ALJR 172 …. 12.48, 12.49
Amadio Pty Ltd v Henderson (1998) 81 FCR 149 …. 9.109
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 …. 22.50, 22.54
Amess v Hanlon (1873) 4 AJR 90 …. 6.5
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 …. 24.89,
24.92, 24.99
Amstad v Brisbane City Council & Ward (No 1) [1968] Qd R 334 …. 6.49
Anchor Products Ltd v Hedges (1966) 115 CLR 493 …. 11.102, 11.105
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387 …. 9.47, 18.22, 18.36
Andary v Burford (1994) Aust Torts Reports ¶81-302 …. 15.21
Anderson v Commonwealth (1932) 47 CLR 50 …. 15.2
— v Enfield City Corporation (1983) 34 SASR 472 …. 9.122, 11.78
— v Gorrie [1895] 1 QB 668 …. 6.55
— v Smith (1990) 101 FLR 34 …. 9.79
Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400; [2006] NSWCA 22 …. 5.11
Andreae v Selfridge & Co Ltd [1938] Ch 1 …. 25.46
Andrewartha v Andrewartha (1987) 44 SASR 1 …. 17.18
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 …. 23.130
Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 …. 10.150, 11.63, 13.93
Angus v Clifford [1891] 2 Ch 449 …. 19.73
Anikin v Sierra (2004) 211 ALR 621; 79 ALJR 452 …. 9.60
Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 …. 25.47
Anns v London Borough of Merton [1978] AC 728 …. 10.9, 10.10, 10.16, 10.33
Anonymous (1535) YB 27 H VIII f 27 …. 25.94
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637;
(1989) 95 ALR 211 …. 24.2, 24.5, 24.56, 24.69, 24.70, 24.82
Archer v Brown [1985] QB 401 …. 19.84, 19.89
Argent Pty Ltd v Huxley [1971] Qd R 331 …. 17.4
Argentine, The (1889) 14 App Cas 519 …. 15.49
Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 …. 5.38, 5.93, 6.45
Armstrong v Sheppard & Short Ltd [1959] 2 QB 384 …. 4.68
— v Strain [1952] 1 KB 232 …. 19.77, 20.55
Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615; [2000] 3 All ER 673 …. 9.113, 9.114
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 …. 15.54, 15.87, 15.152
AS v Minister for Immigration and Border Protection [2014] VSC 593 …. 9.84
Ascic v Westel Cooperative Ltd (1992) Aust Torts Reports ¶81-159 …. 11.79, 15.79
Ashby v Tolhurst [1937] 2 KB 242 …. 6.46
— v White (1704) 14 St Tr 695; 92 ER 710 …. 18.51
Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 …. 5.88
Associated Newspapers plc v Insert Media Ltd [1991] 1 WLR 571 …. 24.33
Astley v Austrust Ltd (1999) 197 CLR 1; 161 ALR 155 …. 1.29, 9.91, 13.6
Atkinson v Newcastle and Gateshead Waterworks Co (1877) LR 2 Ex D 441 …. 18.10, 18.13
Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129 …. 15.68, 15.150
Attia v British Gas plc [1988] QB 304 …. 10.41
Attorney-General v Great Cobar Copper Mining Co (1900) 21 NSWR 351 …. 4.18
— v Nottingham Corporation [1904] 1 Ch 673 …. 15.9
— v PYA Quarries Ltd [1957] 2 QB 169 …. 25.78, 25.85, 25.86, 25.87, 25.93
— v Wilson & Horton Ltd [1973] 2 NZLR 238 …. 17.7, 17.8
Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 …. 17.21
— v — [1955] AC 457 …. 17.4
Attorney-General; Ex rel Pratt v Brisbane City Council [1988] 1 Qd R 346 …. 25.79
.au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521; 61 IPR 81;
[2004] FCA 424 …. 24.35, 24.36
Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1 …. 9.115
Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 …. 25.13
Austin v Mirror Newspapers Ltd [1986] AC 299; (1985) 63 ALR 149 …. 23.83
Austral Bronze Co Pty Ltd v Ajaka (1970) 44 ALJR 155 …. 18.32
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; 173 ALR 619 …. 21.19
Australia and New Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 …. 5.75,
5.78
Australian Broadcasting Corp v Chatterton (1986) 46 SASR 1 …. 23.20
— v Comalco Ltd (1986) 68 ALR 259 …. 23.83, 23.125, 23.130
— v Hanson [1998] QCA 306 …. 22.69
— v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 …. 1.12, 7.24, 7.25
— v O’Neill (2006) 227 CLR 57; 229 ALR 457 …. 15.15, 23.71, 23.105, 23.108, 23.110
Australian Capital Territory Schools Authority v El Sheik (2000) Aust Torts Reports ¶81-577 …. 9.71
Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR
305; 255 ALR 1 …. 22.98
— v Chen (2003) 201 ALR 40 …. 22.96
Australian Consolidated Press Ltd v Uren [1969] 1 AC 590 …. 15.19
Australian Consolidated Press Pty Ltd v Ettingshausen (NSWCA, Gleeson CJ, Kirby P and Clarke JA,
13 October 1993, unreported) …. 23.124
Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216 …. 9.103
Australian Guarantee Corporation Ltd v State Bank of Victoria Commissioners [1989] VR 617 …. 6.63
Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308 …. 23.128
— v Krstevski (1973) 128 CLR 666; 2 ALR 45 …. 11.60
Australian National Airways Ltd v Phillips [1953] SASR 278 …. 3.18
Australian Newspaper Co Ltd v Bennett [1894] AC 284 …. 22.63
Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 …. 5.45
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615 …. 9.10, 9.12
Australian Wool Innovation Pty Ltd v Newkirk (2005) ATPR ¶42-053 …. 24.62
Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 …. 24.14
Awaroa Holdings Ltd v Commercial Securities and Finance Ltd [1976] 1 NZLR 19 …. 19.5
Axiak v Ingram [2011] NSWSC 1447 …. 13.19
Azzopardi v State Transport Authority (Rail Division) (1982) 30 SASR 434 …. 13.19
B
B (Adult: Refusal of Medical Treatment), Re [2002] 2 All ER 449 …. 6.25
B M Auto Sales Pty Ltd v Budget Rent a Car System Pty Ltd (1976) 12 ALR 363 …. 24.31
Badenach v Calvert (2016) 90 ALJR 610; 331 ALR 48 …. 10.99, 10.105
Bader v Jelic [2011] NSWCA 255 …. 11.68
Bailiffs of Dunwich v Sterry (1831) 1 B & Ad 831; 109 ER 995 …. 5.8
Bain v Altoft [1967] Qd R 32 …. 6.9
Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 …. 16.1
— v Dalgleish Steam Shipping Co [1922] 1 KB 361 …. 16.23
— v MacKenzie (2015) 72 MVR 421 …. 11.31
— v Police [1997] 2 NZLR 467 …. 4.11
— v Willoughby [1970] AC 467 …. 12.52
Baker’s Creek Consolidated Gold Mining Co v Hack (1894) 15 LR (NSW) Eq 207 …. 4.6
Baldwin v Cole (1704) 6 Mod Rep 212; 87 ER 964 …. 5.48
Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 …. 10.84, 10.85, 25.87
Ballard v Multiplex [2012] NSWSC 426 …. 24.60, 24.67
— v North British Railway Co [1923] SC 43 …. 11.110
Ballina Shire Council v Ringland (1994) 33 NSWLR 680 …. 22.4, 22.74, 24.101
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 …. 3.63, 6.29
Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 …. 22.72
Balven v Thurston [2013] NSWSC 210 …. 3.22, 3.23
— v — [2015] NSWSC 1103 …. 4.64
Bamberger v Mirror Newspapers Ltd (1969) 43 ALJR 242 …. 23.81
Bamford v Turnley (1860) 3 B & S 62; 122 ER 27 …. 25.25, 25.42, 25.47, 25.98
Bangoura v The Washington Post [2005] OJ No 3849 …. 22.24
Bank of New South Wales v Owston (1879) 4 App Cas 270 …. 20.27
Banks v Ferrari [2000] NSWSC 874 …. 5.56, 5.60, 6.45
Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 …. 1.19, 15.8, 25.39, 25.58,
25.70
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; 65 ALR 1 …. 9.26, 9.32
Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245 …. 25.18, 25.53, 25.74, 25.102
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 …. 23.51, 23.52
Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608 …. 10.91, 10.93, 10.112, 16.1, 17.5, 17.7, 17.8
Barker v Corus (UK) Ltd [2006] 2 AC 572; [2006] 3 All ER 785 …. 12.47
— v Furlong [1891] 2 Ch 172 …. 5.8
— v Permanent Seamless Floors Pty Ltd [1983] 2 Qd R 561 …. 21.9
— v R (1983) 153 CLR 338; 47 ALR 1 …. 4.25, 4.39, 6.9
Barnes v Hay (1988) 12 NSWLR 337 …. 12.58
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 …. 12.21
— v Cohen [1921] 2 KB 461 …. 16.23, 16.26
Barrak Corp Pty Ltd v Kara Group of Companies Pty Ltd [2014] NSWCA 395 …. 11.110
Barrett v J R West Ltd [1970] NZLR 789 …. 19.26
Barton v Armstrong [1969] 2 NSWR 451 …. 3.22, 3.23
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 …. 23.35,
23.36, 23.42, 23.43, 23.44, 23.46, 23.58
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399 …. 15.3
Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 …. 25.17
Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616 …. 21.1, 21.2, 21.5, 21.7, 21.13, 21.14
— v Woolcombers Ltd (1963) 107 Sol Jo 553 …. 11.11
Bazley v Curry (1999) 174 DLR (4th) 45; [1999] 2 SCR 534 …. 20.5, 20.41, 20.42, 20.49
BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd [1991] 2 All ER 129; [1990] 1 WLR 409 …. 5.83,
5.85
Beach Petroleum NL v Johnson (1993) 115 ALR 411 …. 19.76
Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1 …. 9.13
Beaudesert Shire Council v Smith (1966) 120 CLR 145 …. 2.26, 2.27
Beckett v New South Wales (2013) 248 CLR 432; 297 ALR 206 …. 7.15, 7.17
Beckingham v Port Jackson & Manly Steamship Co (1957) SR (NSW) 403 …. 6.42
Beckwith v Shordike (1767) 4 Burr 2092; 98 ER 91 …. 4.43, 26.28
Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 …. 24.99
Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER 583 …. 26.3, 26.8, 26.10, 26.11, 26.15
Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004)
219 CLR 486; 208 ALR 271 …. 9.84
Beitzel v Crabb [1992] 2 VR 121 …. 23.20
Bellambi Coal Co Ltd v Murray (1909) 9 CLR 568 …. 9.42
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 …. 23.52
Belsize Motor Supply Co v Cox [1914] 1 KB 244 …. 5.89
Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210 …. 5.74
Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 …. 4.20, 4.67
Benic v New South Wales [2010] NSWSC 1039 …. 11.44
Benjamin v Storr [1874] LR 9 CP 400 …. 25.85
Benmax v Austin Motor Co Ltd [1955] AC 370 …. 11.96
Bennett v Dopke [1973] VR 239 …. 6.30
— v Minister of Community Welfare (1992) 176 CLR 408; 107 ALR 617 …. 12.28, 12.76
Benning v Wong (1969) 122 CLR 249 …. 6.50, 25.31, 25.58, 25.72
Berkoff v Burchill [1996] 4 All ER 1008 …. 22.27, 22.37, 22.39, 22.46, 22.50
Bernstein v Skyviews & General Ltd [1978] QB 479 …. 4.19, 4.20, 4.44, 7.22
Berry v British Transport Commission [1962] 1 QB 306 …. 7.18
— v Humm & Co [1915] 1 KB 627 …. 16.27
Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121 …. 13.12
Berwin v Donohoe (1915) 21 CLR 1 …. 11.94
Besozzi v Harris (1858) 175 ER 650 …. 26.10
Besser v Kermode (2011) 282 ALR 314 …. 23.15
Best v Samuel Fox & Co Ltd [1952] AC 716 …. 17.10, 17.11
Betts v Whittingslowe (1945) 71 CLR 637 …. 12.53
Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334 …. 19.100
Bici v Ministry of Defence [2004] EWHC 786 (QB) …. 3.16
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 …. 23.87
— v John Fairfax & Sons Ltd [1982] 1 NSWLR 498 …. 23.87
Bielitski v Obadiak (1922) 65 DLR 627 …. 7.3
Biggar v McLeod [1978] 2 NZLR 9 …. 9.111
Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465 …. 4.60
Bily v Arthur Young & Co (1992) 834 P 2d 745 …. 19.45
Bird v Holbrook (1828) 4 Bing 628; 130 ER 911 …. 2.25
— v Jones (1845) 7 QB 742; 115 ER 668 …. 3.53
Birss v R [1923] NZLR 1058 …. 16.8
Bishop v New South Wales [2000] NSWSC 1042 …. 22.90
Bisset v Wilkinson [1927] AC 177 …. 19.6
Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport (1955) 92 CLR 200
…. 21.17
Bitupave Ltd (t/as Boral Asphalt) v Pillinger (2015) 72 MVR 460 …. 11.44
Bjelke-Petersen v Warburton [1987] 2 Qd R 465 …. 22.74
Black v Walden (2008) Aust Torts Reports ¶81-950 …. 16.41
Blacker v Waters (1928) 28 SR (NSW) 406 …. 2.7, 2.20
Blackmore v Beames (SASC, King CJ, Cox and Matheson JJ, No 92–709, 8 February 1993, unreported)
…. 11.19
Blackney v Clark [2013] NSWDC 144 …. 13.98
Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956 …. 10.150
Blades v Higgs (1861) 10 CBNS 713; 142 ER 634 …. 5.72
Blake v JR Perry Nominees Pty Ltd (2012) 38 VR 123 …. 20.28, 20.45
Bleyer v Google Inc (2014) 88 NSWLR 670; 311 ALR 529 …. 22.78
Bliss v Hall (1838) 4 Bing (NC) 183; 132 ER 758 …. 25.5, 25.64
Bloodworth v Cormack [1949] NZLR 1058 …. 25.98
— v Gray (1844) 7 Man & G 334; 135 ER 140 …. 22.16
Blundell v Musgrave (1956) 96 CLR 73 …. 15.61, 15.89, 17.21
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 …. 1.6, 11.2
Boardman v Sanderson [1964] 1 WLR 1317 …. 10.41
Bob Jane Corp Pty Ltd v ACN 149 801 141 Pty Ltd (2013) 97 ACSR 127 …. 24.23
Boden v Roy Gordon & Gordon [1985] 1 Qd R 482 …. 15.50
Bodenstein v Hope Street Urban Compassion [2014] NSWDC 126 …. 23.132
Bodley v Reynolds (1846) 8 QB 779; 115 ER 1066 …. 5.81
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582 …. 11.20,
11.73, 11.76, 11.77
Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 …. 19.17
Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] 4 All ER 771 …. 11.73
Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 WLR 277 …. 24.18, 24.19, 24.22
Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 …. 11.4, 11.51, 11.52
Bolton, Re; Beane, Ex parte (1987) 162 CLR 514 …. 3.64
Bone v Seale [1975] 1 All ER 787 …. 25.75
Bonic v Fieldair (Deniliquin) Pty Ltd [1999] NSWSC 636 …. 25.27
Bonnington Castings Ltd v Wardlaw [1956] AC 613 …. 8.20, 12.42, 12.44, 12.52
Borland v Makauskas [2000] QCA 521 …. 9.20, 11.43, 11.86
Botany Bay City Council v Latham (2013) 197 LGERA 211 …. 10.151
Boughey v R (1986) 161 CLR 10 …. 3.10, 3.11
Bourgoin SA v Ministry of Agriculture [1986] QB 716 …. 18.63
Bourk v Power Serve Pty Ltd [2008] QSC 29 …. 9.41
Bowditch v McEwan (2002) 36 MVR 235 …. 1.22, 1.57, 9.59
Bower v Peate [1876] 1 QBD 321 …. 20.71
Bowin Designs Pty Ltd v Australian Consumers Association (1996) A Def R 52-078 …. 23.44
Bowling v Weinert [1978] 2 NSWLR 282 …. 18.10
Boyd v Mirror Newspapers Ltd [1980] 2 NWSLR 449 …. 22.43
— v State Government Insurance Office (Qld) [1978] Qd R 195 …. 15.40
Boyle v Kodak Ltd [1969] 2 All ER 439; [1969] 1 WLR 661 …. 18.29
Bradburn v Great Western Railway Co (1874) LR 10 Ex 1 …. 15.134
Bradford Corporation v Pickles [1895] AC 587 …. 1.8
Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 …. 19.76, 19.78
Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 …. 7.7
Brady v Schatzel; Brady, Ex parte [1911] St R Qd 206 …. 3.26, 3.27, 3.28
Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 …. 21.17, 21.20
Brand v Bardon [1997] NSWCA 48 …. 9.123, 9.126
Brandeis Goldschmidt & Co Ltd v Western Transport Co Ltd [1981] QB 864 …. 5.92
Branson v Bower [2002] QB 737 …. 23.89
Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311 …. 4.20, 4.68, 15.10
Bresatz v Przibilla (1962) 108 CLR 541 …. 15.83
Brierley v Kendall (1852) 17 QB 937 …. 5.74
Briess v Woolley [1954] AC 333 …. 19.82
Brightwater Care Group v Rossiter [2009] WASC 229 …. 6.25
Brinsmead v Harrison (1872) LR 7 CP 547 …. 21.4, 21.6, 21.10
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 …. 14.2, 14.59,
14.60
Bristow v Adams [2010] NSWCA 166 …. 23.127
British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 1 WLR 959 …. 25.27
British Electric Railway Co Ltd v Gentile [1914] AC 1034 …. 16.7
British Fame (Owners) v Macgregor (Owners) [1943] AC 197 …. 13.46
British Motor Trade Association v Gray 1951 SC 586 …. 24.41
— v Salvardori [1949] Ch 556 …. 24.51
British Railways Board v Herrington [1972] AC 877 …. 9.9
British Telecommunications plc v One in a Million Ltd [1998] 4 All ER 476 …. 15.9
British Transport Commission v Gourley [1956] AC 185 …. 15.85
British Westinghouse Electric & Mfg Co Ltd v Underground Electric Railways Co of London Ltd [1912]
AC 673 …. 15.39
Broadhurst v Millman [1976] VR 208 …. 11.90
Brock v Copeland (1794) 1 Esp 203; 170 ER 328 …. 26.13
Broderick Motors Pty Ltd v Rothe (1986) Aust Torts Reports ¶80-059 …. 25.24
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR
145 …. 1.4, 10.6, 10.19, 10.20, 10.28, 10.36, 10.135, 10.147, 10.148, 25.84, 25.85, 25.99
Broken Hill City Council v Tiziani (1997) 93 LGERA 113 …. 15.51
Broken Hill Proprietary Co Ltd v Fisher (1984) 38 SASR 50 …. 19.89
Brook v Cook (1961) Sol Jo 684 …. 26.8
Brooke v Bool [1928] 2 KB 578 …. 20.25, 21.5
Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408 …. 10.28,
10.114, 10.115, 10.118
Broom v Morgan [1953] 1 QB 597 …. 20.8
Broughton v Competitive Foods Australia Pty Ltd (2005) Aust Torts Reports ¶81-791 …. 11.28
Brown v Hawkes [1891] 2 QB 718 …. 7.16
— v Raphael [1958] Ch 636; [1958] 2 All ER 79 …. 19.7
— v Willington [2001] ACTSC 100 …. 15.104
Brulhart v Jarman [1964] NSWR 1210 …. 18.18
Brunsden v Humphrey (1884) 14 QBD 141 …. 12.1, 15.34, 16.8
Bruton v Estate Agents Licensing Authority [1996] 2 VR 274 …. 23.42, 23.63
Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163 …. 1.30, 10.5, 10.13, 10.28, 10.75, 10.79, 10.97,
10.107, 10.108, 10.109, 10.110, 10.113, 10.116, 10.117, 10.118, 14.24
BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221 …. 19.44, 19.48, 19.50
Buckle v Bayswater Road Board (1936) 57 CLR 259 …. 10.146
— v Holmes [1926] 2 KB 125 …. 26.24
Bugge v Brown (1919) 26 CLR 110 …. 20.27, 20.28, 20.34
Bujdoso v New South Wales (2004) 1512 A Crim R 235 …. 9.83
Bulli Coal Mining Co v Osborne [1899] AC 351 …. 4.17
Bullock v Miller (1987) Aust Torts Reports 80-128 …. 15.73
Bulsey v Queensland [2015] QCA 187 …. 3.58
Bunney v South Australia (2000) 77 SASR 319 …. 4.70
Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 …. 5.39, 5.48, 5.49, 5.52, 5.61, 5.64
Bunyan v Jordan (1937) 57 CLR 1 …. 3.28, 7.3
Burford v Allen (1993) 60 SASR 428 …. 15.66, 15.73
Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349 …. 16.23
Burke v LFOT Pty Ltd (2002) 209 CLR 282 …. 9.109
Burnett v Randwick City Council [2006] NSWCA 196 …. 5.32
Burnicle v Cutelli [1982] 2 NSWLR 26 …. 17.15
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 …. 9.122, 20.17, 20.62,
20.66, 20.67, 20.70, 20.71, 20.73, 25.38
Burns v Edman [1970] 2 QB 541 …. 12.9
Burrows v Rhodes [1899] 1 QB 816 …. 19.80
Burton v Davies [1953] St R Qd 26 …. 3.54
— v Islington Health Authority [1993] QB 204 …. 9.59
— v Spragg [2007] WASC 247 …. 4.17
Bury v Pope (1586) 78 ER 375 …. 25.21
Bus v Sydney City Council (1988) 12 NSWLR 675 …. 11.30
— v — (1989) 167 CLR 78; 85 ALR 577 …. 11.30, 11.81, 11.88
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; 212 ALR 357 …. 19.97, 19.109
Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 …. 5.79, 5.86, 5.93, 15.25, 25.73
— v Fife Coal Co Ltd [1912] AC 149 …. 9.33, 9.36, 18.18
— v Simmonds Crowley & Galvin [1999] QCA 475 …. 18.47, 18.50
Butterfield v Forrester (1809) 11 East 60; 103 ER 926 …. 11.111, 13.2, 25.101
Buxton v Minister of Housing and Local Government [1961] 1 QB 278 …. 18.16
Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422 …. 18.3, 18.4, 18.9, 18.10, 18.12,
18.18, 18.19
— v Boadle (1863) 2 H & C 722; 159 ER 299 …. 11.102, 11.107
— v Deane [1937] 2 All ER 204 …. 22.33, 22.34, 22.35, 22.59, 22.89
C
C v Holland [2012] 3 NZLR 672 …. 7.31
C Czarnikow Ltd v Koufos [1969] 1 AC 350 …. 9.26
C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 2 All ER 784; [1977] 1 WLR 659 …. 4.57
Cabassi v Vila (1940) 64 CLR 130 …. 23.24
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; 239 ALR 662
…. 24.24, 24.35
— v Pub Squash Co Pty Ltd (1980) 32 ALR 387 …. 24.9, 24.12, 24.21, 24.24
Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 …. 22.63, 23.138
CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390;
260 ALR 606 …. 9.7, 9.16
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 …. 15.151
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 …. 10.8, 10.126, 11.60, 11.66
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 …. 8.24
Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227 …. 10.22,
10.23, 10.28, 10.77, 10.79, 10.81, 10.82, 10.83, 10.85, 10.86, 10.87, 10.93, 10.94
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 …. 10.28
Calveley v Chief Constable of Merseyside Police [1989] AC 1228; 1 [1998] 1 All ER 1025 …. 12.15
Calwell v Ipec Australia Ltd (1975) 135 CLR 321 …. 23.70
Cambridge University Press v University Tutorial Press (1928) 45 RPC 335 …. 24.28
Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264; [1994] 1 All ER 53 …. 25.37
Cameron v Commissioner for Railways [1964] Qd R 480 …. 1.25, 9.80
Caminer v Northern & London Investment Trust Ltd [1951] AC 88 …. 11.20
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610 …. 19.103, 19.109
— v Li-Pina (2007) 47 MVR 279 …. 16.20, 16.38
— v MGN Ltd [2004] 2 All ER 995 …. 5.31
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677 …. 24.13,
24.16
Canadian Pacific Railway Company v Lockhart [1942] AC 591 …. 20.35
Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 173 ACTR 33 …. 24.5
Candler v Crane Christmas & Co [1951] 2 KB 164 …. 19.10, 19.11
Cannon v Tahche (2002) 5 VR 317 …. 18.60
Canterbury Bankstown Rugby League Football Club Pty Ltd v Rogers (1993) Aust Torts Reports ¶81-
246 …. 6.7, 20.37
Canterbury Municipal Council v Taylor [2002] NSWCA 24 …. 13.51, 13.52
Caparo Industries Plc v Dickman [1990] 2 AC 605; [1990] 1 All ER 568 …. 10.7, 10.15, 10.29
Capebay Holdings Pty Ltd v Sands [2002] WASC 287 …. 9.108
Carangelo v New South Wales [2016] NSWCA 126 …. 12.40
Carey v Freehills (2013) 303 ALR 445 …. 10.106
— v Lake Macquarie City Council (2007) Aust Torts Reports ¶81-874 …. 13.50
Carlton v Pix Print Pty Ltd [2000] FCA 337 …. 19.61
Carmarthenshire County Council v Lewis [1955] AC 549 …. 9.76, 12.78
Carrera v Honeychurch (1983) 32 SASR 511 …. 26.29
Carrier v Bonham [2002] 1 Qd R 474 …. 1.27, 6.65, 7.6, 11.13
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292 …. 12.72
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; 113 ALR 577 …. 23.116, 23.121
Carter v Kenyon (1863) 2 SCR (NSW) 222 …. 25.6
— v Walker (2010) Aust Torts Reports ¶82-076 …. 2.24, 3.3, 3.13, 3.17, 3.84, 7.3
— v — (2010) 32 VR 1 …. 2.16
Cartledge v E Jopling & Sons Ltd [1963] AC 758; [1963] 1 All ER 341 …. 14.17, 14.18, 14.22, 14.24,
15.33
Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 …. 23.3
— v Zurgalo [1968] ALR 134 …. 15.121
Casley-Smith v F S Evans & Sons Pty Ltd (No 5) (1988) 67 LGRA 108 …. 25.15
Cassell & Co Ltd v Broome [1972] AC 1027 …. 3.75, 19.84
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 …. 22.32, 22.57, 22.71
— v Ministry of Health [1951] 2 KB 343 …. 9.101, 20.18
Castle v St Augustine’s Links Ltd (1922) 38 TLR 615 …. 25.80
Caterson v Commissioner for Railways (1973) 128 CLR 99 …. 13.9, 13.14, 13.24
Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 …. 1.61, 8.6, 10.5, 10.34, 12.8, 12.14, 12.86, 15.28,
15.41
Cavalier v Pope [1906] AC 428 …. 9.21
Central Queensland Speleological Society Inc v Central Queensland Cement (No 1) [1989] 2 Qd R 512
…. 16.8
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 …. 20.28, 20.32
Cerutti v Crestside Pty Ltd [2014] QCA 33 …. 23.139
CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 …. 15.41
Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986] AC 337; [1986] 1 All ER 480 …. 5.85, 5.89
Chadwick v Allen [2012] SADC 105 …. 13.45
Chairman, National Crime Authority v Flack (1998) 156 ALR 501 …. 5.37
Chakravarti v Advertiser Newspapers (1998) 193 CLR 519; 154 ALR 294 …. 22.27, 22.38, 22.49
Challen v McLeod Country Golf Club (2004) Aust Torts Reports ¶81-760 …. 25.8, 25.32
Chan v Acres [2015] NSWSC 1885 …. 9.2, 10.112, 10.114
Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 24,675; Aust Torts Reports ¶81-896; [2007]
NSWSC 694 …. 21.42
Chang v Chang [1973] 1 NSWLR 708 …. 1.24
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468 …. 23.80, 23.81, 23.82,
23.87
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 …. 23.5, 23.134
— v Parras (2002) Aust Torts Reports ¶81-675 …. 22.73
Chaplin v Dunstan Ltd [1938] SASR 245 …. 20.31
Chapman v Ellesmere [1932] 2 KB 431 …. 23.101
— v Hearse (1961) 106 CLR 112 …. 10.8, 11.43, 12.64, 12.78, 13.25, 13.98
Chappel v Hart (1998) 195 CLR 232; 156 ALR 517; [1998] HCA 55 …. 12.20, 12.26, 12.45, 12.88
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports ¶80-691 …. 23.126
— v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 …. 23.80, 23.106, 23.107
Charsley v Jones (1889) 53 JP 280 …. 9.21
Chatterton v Gerson [1981] 1 All ER 257 …. 6.16
— v Secretary of State for India [1895] 2 QB 189 …. 23.32
Chester v Waverley Corporation (1939) 62 CLR 1 …. 10.41, 10.48
Chew v Amanatidis [2009] SASC 334 …. 19.28
Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 …. 4.38
Chicco v Corporation of City of Woodville (1990) Aust Torts Reports ¶81-028 …. 11.78
Chief Commissioner of Railways and Tramways (NSW) v Boylson (1915) 19 CLR 505 …. 16.23
Childrens Television Workshop Inc v Woolworths (NSW) Ltd [1981] 1 NSWLR 273 …. 24.20, 24.27
Chin Keow v Government of Malaysia [1967] 1 WLR 813 …. 11.14
Chinery v Viall (1860) 5 H & N 288; 157 ER 1192 …. 5.86
Chisholm v State Transport Authority (1987) 46 SASR 148 …. 11.99
Chong v CC Containers Pty Ltd [2015] VSCA 137 …. 24.62
Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; 91 ALR 149 …. 9.24, 18.16
Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 …. 22.74
Christie v Davey [1893] 1 Ch 316 …. 25.52
Christopher v MV ‘Fiji Gas’ (1983) Aust Torts Reports ¶81-202 …. 10.84, 10.85
Christopherson v Bare (1848) 116 ER 554 …. 3.13
Church of Scientology Inc v Anderson [1980] WAR 71; (1979) 46 FLR 202 …. 22.17
— v Woodward (1982) 154 CLR 25; 43 ALR 587 …. 7.23
Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 ….
23.107
Cinnamond v British Airports Authority [1980] 1 WLR 582 …. 4.39
City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477 …. 5.59, 5.89
Civil Service Co-Op Society of Victoria Ltd v Blyth (1914) 17 CLR 601; 20 ALR 161 …. 19.72
Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170; [1953] ALR 850 …. 25.43
Clark v Ainsworth (1996) 40 NSWLR 463 …. 23.122
Clark Boyce v Mouat [1993] 3 NZLR 641 …. 9.105
Clarke v Army & Navy Co-operative Society Ltd [1903] 1 KB 155 …. 9.123
— v President, Councillors and Ratepayers of the Shire of Gisborne [1984] VR 971 …. 10.10
Clavel v Savage [2013] NSWSC 775 …. 7.6
Clearlite Holdings Ltd v Auckland City Corporation [1976] 2 NZLR 729 …. 25.96
Clegg v Deardon (1848) 12 QB 576; 116 ER 986 …. 4.47
Clement v Backo [2007] 2 Qd R 99 …. 15.101
— v Milner (1880) 3 Esp 95; 170 ER 550 …. 6.47
Clifford v Dove [2006] NSWSC 314 …. 25.31
Clifton v Bury (1887) 4 TLR 8 …. 4.44
Clissold v Cratchley [1910] 2 KB 244 …. 18.49
Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 …. 9.24
Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR l …. 10.55, 10.56, 12.16
Coca Cola Co v PepsiCo Inc (No 2) (2014) 322 ALR 505; 109 IPR 429 …. 24.24
Coco v R (1994) 179 CLR 427; 120 ALR 415 …. 6.50
Cohen v City of Perth (2000) 112 LGERA 234 …. 25.17, 25.26, 25.48, 25.49, 25.57, 25.69
Cohen, Re; National Provincial Bank Ltd v Katz [1953] Ch 88 …. 4.17
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52 …. 1.37,
8.6, 9.11, 9.15, 10.20, 10.28, 10.37, 10.39, 11.33
— v Turner (1704) 6 Mod Rep 149; 90 ER 958 …. 3.8, 3.9, 3.16
Coleman v Buckingham’s Ltd [1963] SR (NSW) 171 …. 18.41
— v Watson [2007] QSC 343 …. 3.83
Collins v Carey [2002] QSC 398 …. 26.6
— v — (2003) Aust Torts Reports ¶81-709 …. 26.30
Collins v Clarence Valley Council [2015] NSWCA 263 …. 10.151, 11.63, 13.94
— v Wilcock [1984] 3 All ER 374; [1984] 1 WLR 1172 …. 3.2, 3.11
Colls v Home and Colonial Stores Ltd [1904] AC 179 …. 25.21
Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of
Australia Ltd (1931) 46 CLR 41; [1932] ALR 73 …. 20.53, 20.55, 20.56
Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 …. 23.88
Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337 …. 19.78, 19.79
Commissioner for Railways v Halley (1978) 20 ALR 409 …. 13.16
— v Small [1957] ALR 529 …. 8.24, 11.93
Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 …. 1.9, 17.2, 17.3, 17.4
Commissioner of Main Roads v Jones (2005) 215 ALR 418; 79 ALJR 1104 …. 11.96
Commissioner of Railways v Ruprecht (1979) 142 CLR 563; 25 ALR 481 …. 13.7, 13.9, 13.15
Commonwealth v Chessell (1991) 101 ALR 182 …. 15.52
— v Connell (1986) 5 NSWLR 218 …. 20.19
— v Cornwell (2007) 229 CLR 519; 234 ALR 148 …. 14.26, 19.62
— v Fernando (2012) 200 FCR 1; 287 ALR 267 …. 18.58
— v Introvigne (1982) 150 CLR 258; 41 ALR 577 …. 8.9, 9.71, 9.75, 9.76, 11.96, 20.67
— v McLean (1996) 41 NSWLR 389 …. 12.67
— v Quince (1944) 68 CLR 227 …. 17.4, 20.19
— v Winter (1993) 19 MVR 215 …. 11.67
Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 …. 8.24
— v Smith (1991) 102 ALR 453 …. 9.105
Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 …. 1.9, 7.12
— v Smith (1938) 59 CLR 527 …. 7.15, 7.17
Commonwealth of Australia v Verwayen (1990) 170 CLR 394 …. 14.7
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia v Corke Instrument Engineering (Australia) Pty Ltd; Siemens Ltd v CEPU
(2005) 223 ALR 480 …. 24.52
Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA
1319 …. 24.14
ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465 …. 24.7, 24.9, 24.10,
24.14, 24.17, 24.23
Connolly v Sunday Times Publishing Co Ltd (1908) 7 CLR 263; 15 ALR 29 …. 15.18
Consolidated Company v Curtis & Son [1892] 1 QB 495 …. 1.5, 5.45, 5.55, 6.64
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 …. 22.65, 22.66, 22.70
Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (ACN 004 620 731)
[2014] VSCA 348 …. 24.75
Conway v George Wimpey & Co Ltd [1951] 2 KB 266 …. 20.35
Cook v Batchellor (1802) 3 Bos & Pul 151 …. 22.86
— v Cook (1986) 162 CLR 376; 68 ALR 353 …. 1.57, 11.22, 11.23, 11.24, 11.25
Cookson v Harewood [1932] 2 KB 478 …. 23.100
Cope v Sharpe (No 2) [1912] 1 KB 496 …. 6.41, 6.42
Copyright Agency Ltd v Haines [1982] 1 NSWLR 182; 40 ALR 264 …. 2.26, 24.5
Corbett v Pallas (1995) Aust Torts Reports ¶81-239 …. 25.98
Cornfoot v Fowke (1840) 6 M & W 358; 151 ER 450 …. 19.65, 19.77
Cornwall v Rowan (2004) 90 SASR 269 …. 18.54, 18.56
Corporation of London v Appleyard [1963] 2 All ER 834 …. 4.17
Corvisy v Corvisy [1982] 2 NSWLR 557 …. 3.85
Coryton v Lithebye (1670) 2 Wm Saund (5th ed) 115 …. 22.86
Couch v Steel (1854) 118 ER 1193 …. 18.11
Coupey v Henley, Whale and Webster (1797) 170 ER 448; 2 Esp 540 …. 3.69
Council of the City of Greater Taree v Wells [2010] NSWCA 147 …. 11.35
Cousins v Wilson [1994] 1 NZLR 463 …. 4.13
Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714 …. 3.17, 3.71, 6.64
— v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 …. 4.31, 4.34, 4.49
Cox v Burbridge (1863) CB (NS) 430; 143 ER 171 …. 26.24, 26.26
— v New South Wales (2007) 71 NSWLR 225 …. 15.30
Coyne v Citizen Finance Ltd (1991) 172 CLR 211; 99 ALR 252 …. 23.123, 23.138, 23.140
Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 …. 4.62, 4.64
Craig v Marsh (1935) 35 SR (NSW) 323 …. 5.84
Credit Lyonnais Nederland NV (now known as General Bank Nederland NV) v Export Credits
Guarantee Department [2000] 1 AC 486; [1999] 1 All ER 929 …. 20.29, 20.52
Cresswell v Swirl [1947] 2 All ER 730 …. 6.41, 6.42
Cridge v Commonwealth (1961) 10 FLR 275 …. 21.24
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 …. 10.15, 10.20,
10.28, 10.121, 10.140, 10.141
Cripps v Vakras [2014] VSC 279 …. 23.79
Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435 …. 24.60, 24.63, 24.66, 24.70
Crofts v Waterhouse (1825) 3 Bing 319; 130 ER 536 …. 9.64
Crook v Thyssen Mining Construction of Australia Pty Ltd (1992) 9 SR (WA) 10 …. 11.109
Cross v Certain Lloyds Underwriters [2011] NSWCA 136 …. 3.78
— v Denley (1952) 52 SR (NSW) 112 …. 22.77
Crowther v Australian Guarantee Corporation Ltd (1985) Aust Torts Reports ¶80-709 …. 5.65
Cruttendon v Brenock [1949] VLR 366 …. 26.6
CS v Bierdrzycka [2011] NSWSC 1213 …. 9.100, 12.86
CSR Ltd v Della Maddalena (2006) 224 ALR 1; 80 ALJR 458 …. 1.15, 10.44, 12.8, 12.17
— v Eddy (2005) 226 CLR 1; 222 ALR 1 …. 15.54, 15.101, 15.104, 15.105, 17.15
Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 …. 3.51, 20.21
Cull v Green (1924) 27 WALR 62 …. 25.14
Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1 …. 15.85, 15.146
Cumberland v Clark (1996) 39 NSWLR 514 …. 7.13
Cummings v Granger [1977] 1 All ER 104; [1976] 3 WLR 842 …. 26.12, 26.13
Cunliffe v Woods [2012] VSC 254 …. 23.28, 23.98
Cunningham v Harrison [1973] 1 QB 942; 3 All ER 463 …. 15.89
Curmi v McLennan [1994] 1 VR 513 …. 9.82
Curran v Greater Taree City Council (1992) Aust Torts Reports ¶81-152 …. 19.27
Curtis v Chemical Cleaning & Dyeing Co [1951] 1 KB 805 …. 19.5
Cusack v Heath [1950] QWN 16 …. 15.134
Cush v Dillon (2011) 243 CLR 298; 279 ALR 631 …. 23.33, 23.39, 23.50
Cutler v United Dairies [1933] 2 KB 297 …. 13.98
— v Wandsworth Stadium Ltd [1949] AC 398 …. 18.17, 18.24
Curran v Young (1965) 112 CLR 99 …. 17.10, 17.20
Cutcheon v Davis [1964] QWN 4 …. 17.22
Cvetkovic v Princes Holdings (t/a Tilt Amusement Centre) (1989) 51 SASR 365 …. 13.63
Czatyrko v Edith Cowan University (2005) 214 ALR 349 …. 9.45, 13.16, 20.65
D
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 …. 11.96
Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333 …. 11.67
Daebo Shipping Co Ltd v Ship Go Star (2012) 207 FCR 220; 294 ALR 635 …. 24.40, 24.48
Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762 …. 24.48
Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291 …. 25.45
Dairy Farmers Cooperative Ltd v Azar (1990) 170 CLR 293; 95 ALR 1 …. 18.18
Dalton v Henry Angus & Co (1881) 6 App Cas 740 …. 25.18, 25.19
D’Amico v Calavary Hospital Auxiliary Inc [2013] ACTSC 259 …. 9.34
Danby v Beardsley (1878) 43 LT 603 …. 7.12
Daniel v Anniversary Nominees Pty Ltd (1990) 9 SR (WA) 35 …. 11.108
Daniels v Burfield (1994) 125 ALR 33 …. 11.95
Dank v Whittaker [2014] NSWSC 732 …. 23.119
Dansar Pty Ltd v Bryon Shire Council (2014) 89 NSWLR 1 …. 10.142
Darby v Director of Public Prosecutions (2004) 61 NSWLR 558 …. 3.11
Darcy (bht Aldridge) v New South Wales [2011] NSWCA 413 …. 3.59, 3.61
Dare v Dobson [1960] SR (NSW) 474 …. 21.24
Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 …. 18.17, 18.19, 18.20, 20.5,
20.8
Darroch v Dennis [1954] VLR 282 …. 16.39
Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 …. 22.96
David v David [2009] NSWCA 8 …. 10.105
David Syme & Co v Canavan (1918) 25 CLR 234 …. 22.74
Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 …. 5.79, 5.80, 15.45
Davie v New Merton Board Mills Ltd [1959] AC 604 …. 1.56, 9.42
Davies v Bennison (1927) 22 Tas LR 52 …. 4.45
— v London & Provincial Marine Insurance Co (1878) 8 Ch D 469 …. 19.75
— v Tomkins [2009] WASCA 2 …. 9.62
Davis v Bunn (1936) 56 CLR 246 …. 11.102, 11.103, 11.104, 11.110
— v Cole [1939] VLR 320 …. 26.24
— v Council of the City of Wagga Wagga [2004] NSWCA 34 …. 8.25
— v Gell (1924) 35 CLR 275; 31 ALR 49 …. 7.15
— v Nationwide News Pty Ltd [2008] NSWSC 693 …. 23.119
— v Pearce Parking Station Pty Ltd (1954) 91 CLR 642 …. 13.104
— v Swift (2014) 69 MVR 375 …. 13.26
Davis Contractors v Fareham Urban District Council [1956] AC 696 …. 11.5
Davison (as personal plaintiff representative of the estate of Staines, decd) v Wilkinson [2006] QSC 212
…. 4.69
Day v Bank of New South Wales (1978) 18 SASR 163; 19 ALR 321 …. 6.63
— v Ost [1973] 2 NZLR 385 …. 19.26
DC Thomson Ltd & Co v Deakin [1952] 1 Ch 646; [1952] 2 All ER 361 …. 24.43, 24.52, 24.53
De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 1 WLR 972
…. 24.90, 24.94
De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498 …. 25.8
De Reus v Gray (2003) 9 VR 432 …. 21.7
De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 …. 16.20, 16.34, 16.37, 16.38
Dean v Phung [2011] NSWSC 653 …. 6.11
— v — [2012] NSWCA 223 …. 3.13, 6.11, 6.15, 6.16, 6.17
Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466 …. 1.12, 25.7
Deatons Pty Ltd v Flew (1949) 79 CLR 370 …. 20.37, 20.38, 20.46
Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262 ALR 53; 83 IPR 245 …. 24.10, 24.20,
24.22, 24.32, 24.36
Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 …. 11.59
Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173 …. 5.70
Deen v Davies [1935] 2 KB 282 …. 26.38
Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117 …. 24.4, 25.24, 25.89
Dehn v Attorney-General [1988] 2 NZLR 564 …. 6.42
Delaney v T P Smith Ltd [1946] KB 393 …. 4.5
Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737 …. 25.11
Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608 …. 19.104
Derrick v Cheung (1999) 29 MVR 351 …. 11.82
— v — (2001) 181 ALR 301 …. 11.82
Derring Lane Pty Ltd v Fitzgibbon (2007) 16 VR 563 …. 19.50
Derry v Peek (1889) 14 App Cas 337 …. 19.2, 19.64, 19.72
Dessent v The Commonwealth (1977) 51 ALJR 482 …. 15.151
Deutsch v Rodkin [2012] VSC 450 …. 24.63
Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173 …. 20.24
DHR International Inc, a company incorporated in Delaware in the United States of America v Challis
[2015] NSWSC 1567 …. 24.99
Diamond v Simpson (No 1) (2003) Aust Torts Reports ¶81-695 …. 15.130, 15.151
DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 …. 9.39
Dick v University of Queensland [2000] 2 Qd R 476 …. 14.59
Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 …. 3.51
Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; 6 ALR 171 …. 21.17
Dimmock v Hallett (1866) LR 2 Ch App 21 …. 19.5
Dininis v Kaehne [1982] 29 SASR 118 …. 15.39
Dingle v Associated Newspapers Ltd [1964] AC 371; [1962] 3 WLR 229 …. 23.121
Dixon v Bell (1816) 1 Stark 87; 171 ER 475 …. 9.121
— v Davies (1982) 17 NTR 31 …. 15.125
— v Western Australia [1974] WAR 65 …. 9.86
Dobler v Halverson (2007) 70 NSWLR 151 …. 11.72, 13.83
Dobson v Thames Water Utilities Ltd [2011] EWHC 3253 …. 25.25
Dodwell v Burford (1669) 1 Mod 24; 86 ER 703 …. 3.5
Doe v Australian Broadcasting Corporation [2007] VCC 281 …. 7.27
Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 …. 25.47
Domachuk v Feiner (NSWCA, Sheller JA, Giles and Simos AJJA, BC9606851, 28 November 1996,
unreported) …. 25.25
Dominion Natural Gas Co Ltd v Collins [1909] AC 640 …. 9.123
Donaldson v Broomby (1982) 40 ALR 525 …. 3.64
— v Natural Springs Australia Ltd [2015] FCA 498 …. 24.5, 24.48
Donnelly v Joyce [1974] QB 454; [1973] 3 All ER 475 …. 15.61, 15.89, 15.90
Donoghue v Stevenson [1932] AC 562 …. 1.41, 1.42, 1.62, 8.10, 8.11, 9.3, 9.9, 9.23, 9.119, 9.121, 9.122,
9.123, 9.124, 9.125, 9.127, 10.5, 10.8, 10.21, 10.26, 10.28, 10.30, 10.41, 10.90, 10.137, 19.10, 19.12,
19.13, 25.93
Doodeward v Spence (1908) 6 CLR 406; 15 ALR 105 …. 5.3
Dorman v Horscroft (1980) 24 SASR 154 …. 26.12, 26.33
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 …. 9.114, 18.41, 19.17
Doubleday v Kelly [2005] NSWCA 151 …. 11.32, 11.44, 13.11, 13.54, 13.68
Dougherty v Chandler (1946) 46 SR (NSW) 370 …. 23.56
Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738 …. 5.53
Douglass v Lewis (1982) 30 SASR 50 …. 23.25
Doust v Godbehear (1925) 28 WALR 59 …. 24.41
Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 …. 11.109
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 …. 9.124, 11.16, 11.65, 11.69
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 …. 22.6, 22.23, 22.24, 22.75, 22.78
Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509 …. 18.43
Downing v WIN Television (NSW) Pty Ltd (No 2) [2011] NSWSC 563 …. 4.53
Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 …. 19.84
Draper v British Optical Association [1938] 1 All ER 115 …. 15.2
— v Hodder [1972] 2 QB 556 …. 26.5, 26.29
— v Trist (1939) 56 RPC 429; [1939] 3 All ER 513 …. 24.30
Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR 42–013; [2004] FCAFC 169 …. 24.62, 24.65
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 …. 18.28
Drinkwater v Howarth [2006] NSWCA 222 …. 11.37, 11.44
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 …. 11.91
Duffy v Google Inc [2015] SASC 170 …. 22.78, 22.92
— v Google Inc (No 2) [2015] SASC 206 …. 23.122
Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75 …. 22.80
Dulieu v White [1901] 2 KB 669 …. 10.40
Duncan v Bell [1967] Qd R 425 …. 13.63
Dunlop v Woollahra Municipal Council [1982] AC 158 …. 2.26, 18.51
Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367 …. 22.14
Dunster v Abbott [1953] 2 All ER 1572; [1954] 1 WLR 58 …. 9.9
Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125 …. 18.34
E
E v English Province of Our Lady of Charity [2013] QB 722 …. 20.17
E Hulton & Co v Jones [1910] AC 20 …. 15.24, 22.64, 22.67, 23.4
Eade v Vogiazopoulos [1999] 3 VR 889 …. 19.8
Eagles v Orth [1975] Qd R 197 …. 13.19, 13.28
Earl of Harrington v Derby Corporation [1905] 1 Ch 205 …. 25.76
Earl of Shrewsbury’s case (1610) Co Rep 466; 77 ER 798 …. 25.94
East v Maurer [1991] 2 All ER 733; [1991] 1 WLR 461 …. 19.87
East Dorset District Council v Eaglebeam Ltd [2006] EWHC 2378 …. 25.85
East Suffolk Catchment Board v Kent [1941] AC 74 …. 25.84
Eastern Distributors Ltd v Goldring [1957] 2 QB 600 …. 5.54
Easther v Amaca Pty Ltd [2001] WASC 328 …. 15.104
Eather v Jones [1974] 2 NSWLR 19; (1975) 6 ALR 220 …. 26.5
Eatock v Bolt (2011) 197 FCR 261; 283 ALR 505 …. 23.1
Eaves v Donelly [2011] QDC 207 …. 3.82, 3.84
EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia [2005] 3 SCR 45 ….
20.41
Ebbels v Rewell [1908] VLR 261 …. 4.7
Edgington v Fitzmaurice (1885) 29 Ch D 459 …. 19.6, 19.69, 19.80
Edwards v Noble (1971) 125 CLR 296 …. 9.57, 11.96
— v Railway Executive [1952] AC 737 …. 9.9
— v Rawlins [1924] NZLR 333 …. 26.25
— v Sims Ky 791, 24 SW (2d) 619 (1929) …. 4.17
Egan v State Transport Authority (1982) 31 SASR 481 …. 5.94, 6.64, 15.19
Egger v Viscount Chelmsford [1965] 1 QB 248; [1964] 3 All ER 406 …. 23.56
Elders Trustee & Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193 …. 19.106
Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] QB
585 …. 22.86
Electrochrome Ltd v Welsh Plastics Ltd [1968] 2 All ER 205 …. 19.1
Ellis v Home Office [1953] 2 All ER 149 …. 9.83, 9.85
— v Loftus Iron Co (1874) LR 10 CP 10 …. 26.25
— v McGowan (NSWSC, Master Allen, 15 November 1977, unreported) …. 24.79
— v Wallsend District Hospital (1989) 17 NSWLR 553 …. 9.101, 20.69
Elston v Dore (1982) 149 CLR 480 …. 25.1, 25.2, 25.38
Elvin & Powell Ltd v Plummer Roddis Ltd (1933) 50 TLR 158 …. 5.46
Elwes v Brigg Gas Co (1886) 33 Ch D 562 …. 4.17, 4.18, 5.15, 5.37
Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 …. 7.22
Emerald Construction Co Ltd v Lowthian [1966] 1 All ER 1013; [1966] 1 WLR 691 …. 24.44, 24.47
Emmett v Manning [1985] 40 SASR 297 …. 9.61
Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 …. 11.44
Enever v R (1906) 3 CLR 969 …. 20.20
Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807 …. 4.2
Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22 …. 12.88
Erickson v Bagley [2015] VSCA 220 …. 11.38
Erlich v Leifer [2015] VSC 499 …. 20.45, 20.46
Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 …. 24.7, 24.15
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241; 142 ALR 750
…. 1.57, 9.94, 19.29, 19.34, 19.43, 19.45
Essendon Corporation v McSweeney (1914) 17 CLR 524 …. 25.84
Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 …. 4.15, 25.15, 25.63, 25.90, 25.99
Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 …. 22.39, 23.101
— v Australian Consolidated Press Ltd (NSWSC, Hunt J, 11 March 1993, unreported) …. 23.101
Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36 …. 4.57, 4.58, 15.46, 25.73,
25.74
— v London Hospital and Medical College [1981] 1 All ER 715 …. 7.13
— v Port of Brisbane Authority (1992) Aust Torts Reports ¶81-181 …. 13.105
— v Walton (1867) LR 2 CP 615 …. 17.26
Evatt v Mutual Life & Citizens Assurance Co Ltd (1967) 69 SR (NSW) 50 …. 19.15
Everett v Ribbands [1952] 2 QB 198 …. 7.15
Everitt v Martin [1953] NZLR 298 …. 5.28
Exchange Hotel v Murphy [1947] SASR 112 …. 2.7, 3.16
Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147 …. 24.49, 24.55
F
F v R (1983) 33 SASR 189 …. 11.77
F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 …. 3.9, 3.11, 6.13, 6.44
Fabbri v Morris [1947] 1 All ER 315 …. 25.89
Fabian v Welsh [1999] QCA 365 …. 26.35
Fabre v Arenales (1992) 27 NSWLR 437 …. 13.74
Facton Ltd v Rifai Fashions Pty Ltd (2012) 287 ALR 199 …. 24.32
Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 …. 3.32
FAI General Insurance Co Ltd v A R Griffiths & Sons Pty Ltd (1997) 71 ALJR 651 …. 20.87, 21.27
Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1 …. 23.132
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; [2002] 3 All ER 305; [2002] 3 WLR 89 ….
8.20, 12.42, 12.46, 12.47, 12.48
Fairfax Media Publications Pty Ltd v Bateman (2015) 321 ALR 726 …. 22.9
— v Pedavoli (2015) 326 ALR 737 …. 22.72
Falcke v Herald & Weekly Times Ltd [1925] VLR 56 …. 23.88, 23.90
Fallas v Mourlas (2006) 65 NSWLR 418 …. 13.54, 13.68, 13.69, 13.70
Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports ¶81-831 …. 13.70
Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236 …. 10.116
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209 …. 3.44
Farley & Lewers Ltd v Attorney-General (NSW) (1962) 63 SR (NSW) 814 …. 25.68
Farquhar v Bottom [1980] 2 NSWLR 380 …. 22.31
Farquharson Bros & Co v C King & Co [1902] AC 325 …. 6.63
Farrington v Thomson [1959] VR 286 …. 18.51, 18.56, 18.60
Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 …. 24.66, 24.68, 24.69, 24.71, 24.74
Fatur v IC Formwork Services Pty Ltd (2000) 155 FLR 70 …. 11.78
Faulkner v Keffalinos (1971) 45 ALJR 80 …. 12.52, 12.88
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 …. 22.31, 22.55, 22.56
Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 …. 23.13
Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; 38 ALR 424 …. 15.40
Feldman v A Practitioner (1978) 18 SASR 238 …. 9.111
Felton v Johnson (2000) Aust Torts Reports ¶81-559 …. 19.5, 19.79
Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 …. 25.15, 25.18, 25.32, 25.53
Fenty v Arcadia Group Brands Ltd t/as Topshop [2015] All ER 157; [2015] 1 WLR 3291 …. 24.26
Ferguson v Eakin t/as Price Brent [1997] NSWCA 106 …. 5.3
— v State of Queensland [2007] QSC 322 …. 3.56, 3.61
Fernando v Commonwealth (2010) 276 ALR 586 …. 18.58
Fernwood Fitness Centre Pty Ltd v Today’s Woman Health and Fitness Pty Ltd (1998) 41 IPR 78 ….
24.24
Ffrench v Sestili (2006) 98 SASR 28 …. 20.39
Fick v Groves [2010] QSC 89 …. 19.28, 19.38, 19.49, 19.54, 19.57
Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 …. 24.43, 24.45, 24.48
Filburn v People’s Palace & Aquarium Co Ltd (1890) 25 QBD 258 …. 26.4, 26.10
Finch v Rogers [2004] NSWSC 39 …. 12.60
Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368 …. 4.51,
4.52, 5.4
Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427; 21 ALR 375 …. 15.145
Fischer v Stuart (1979) 25 ALR 336 …. 26.10
Fish Steam Laundry Pty Ltd v Col Johnson Electrics Pty Ltd [1992] 2 Qd R 585 …. 4.55, 25.73, 25.74
Fitter v Veal (1701) 12 Mod 542; 88 ER 1506 …. 15.33
Fitzgerald v Firbank [1897] 2 Ch 96 …. 4.12
— v Hill (2008) 51 MVR 55 …. 9.73
— v Penn (1954) 91 CLR 268 …. 11.90, 11.98, 13.19
Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 …. 11.102, 11.103, 11.104
Fitzwilliam v Beckman [1978] Qd R 398 …. 3.85, 15.11
Flamingo Park Pty Ltd v Dolly Dolly Creations Pty Ltd (1986) 65 ALR 500; 6 IPR 431 …. 24.32
Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52 …. 22.96
Flemming v Gibson (2001) 34 MVR 40 …. 14.32
Flight Centre Ltd v Louw (2010) 78 NSWLR 656 …. 10.46
Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 …. 11.71, 13.81
Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 …. 18.47
— v — (2001) 109 FCR 280 …. 7.18
Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports ¶81-244 …. 5.48, 5.49,
5.63, 5.90
Fontin v Katapodis (1962) 108 CLR 177 …. 3.44, 6.30, 6.31, 6.35, 6.60
Forde v Skinner (1830) 4 C & P 239; 172 ER 687 …. 3.5
Forrest v Chlanda [2012] NTSC 14 …. 23.48, 23.124
Forrester v Tyrell (1893) 9 TLR 257 …. 22.17
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 …. 15.2
— v Lawson (1826) 3 Bing 452 …. 22.86
Fortron Automotive Treatments Pty Ltd v Jones (No 3) [2011] FMCA 467 …. 24.51
Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R 429 …. 10.86, 10.87, 10.88, 10.89,
10.93, 10.95
Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153 …. 5.20, 5.40
Fournier v Canadian National Railway Co [1927] AC 167 …. 15.36
Fowler v Hollins (1872) LR 7 QB 616 …. 5.51
— v Lanning [1959] 1 QB 426 …. 2.6, 2.22
Fox v Hack [1984] 1 Qd R 391 …. 11.78, 11.79
— v Wood (1981) 148 CLR 438 …. 15.137
Francis v Cockrell; Maclennan v Segar [1917] 2 KB 325 …. 9.9
— v Lewis [2003] NSWCA 152 …. 11.78
— v Whatson [1994] 2 Qd R 584 …. 19.63
Fraser v Booth (1949) 50 SR (NSW) 113 …. 25.52
French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214 …. 9.64, 12.41, 12.60, 16.33, 16.44
— v Triple M Melbourne Pty Ltd [2008] VSC 553 …. 23.88
Freudhofer v Poledano [1972] VR 287 …. 15.121
Froom v Butcher [1976] QB 286 …. 13.20
Frost v Warner (2002) 209 CLR 509; 186 ALR 1 …. 20.58
Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 …. 10.25
Fuller v New South Wales Department of School Education and Training (2004) Aust Torts Reports
¶81-756 …. 9.41
— v Wilson (1842) 3 QB 58 …. 19.65
G
Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 …. 5.90, 5.94
Gagner Pty Ltd t/as Indochine Café v Canturi Corporation Pty Ltd (2009) 262 ALR 69 …. 15.47
Gala v Preston (1991) 172 CLR 243; 100 ALR 29 …. 10.13, 13.74, 25.101
Galashiels Gas Co Ltd v O’Donnell [1949] AC 275 …. 18.29
Galea v Gillingham [1987] 2 Qd R 365 …. 26.30
Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 …. 15.10
— v — (2013) 85 NSWLR 514 …. 25.53
Gallagher v McClintock [2014] QCA 224 …. 4.29
Gamser v The Nominal Defendant (1977) 136 CLR 145 …. 15.151
Gannon v Gray [1973] Qd R 411 …. 15.117
Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 …. 23.85, 23.86
Garratt v Dailey (1955) 279 P 2d 1091 …. 3.5
Gartner v Kidman (1962) 108 CLR 12 …. 25.23, 25.46
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; 63 ALR 600 …. 19.61, 19.84, 19.111
Gatward v Alley (1940) 40 SR NSW 174 …. 5.5
Gaunt v Fynney (1872) LR 8 Ch App 8 …. 25.52
Gedbury Pty Ltd v Michael David Kennedy Autos [1986] 1 Qd R 103 …. 5.98
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 …. 6.50, 25.56
General and Finance Facilities Ltd v Cook’s Cars (Romford) Ltd [1963] 1 WLR 644 …. 5.90, 5.91, 5.100,
5.101
General Constructions Pty Ltd v Peterson (1962) 108 CLR 251 …. 18.13
General Engineering Ltd v Kingston and St Andrew Corporation [1989] 1 WLR 69 …. 20.38
Gent-Diver v Neville [1953] St R Qd 1 …. 13.20, 13.65
George v Webb [2011] NSWSC 1608 …. 21.42
Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 …. 4.9
Georgieff v Athans (1981) 26 SASR 412 …. 9.92
Gerard v Hope [1965] Tas SR 15 …. 3.69, 6.55
Gershman v Manitoba Vegetable Producers’ Marketing Board (1977) 69 DLR (3d) 114 …. 24.42
Gessey v Morrison (1995) 23 MVR 103 …. 15.86
Gett v Tabet (2009) 254 ALR 504 …. 10.150
Geyer v Downs (1977) 138 CLR 91; 17 ALR 408 …. 9.71, 9.72
Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417 …. 9.111, 9.112, 9.114, 19.17
Gianni Versace SpA v Monte (2002) 119 FCR 349 …. 22.99
Gibbs v Rea [1998] AC 786 …. 7.16
Gifford v Dent (1926) 25 WN 33 …. 4.6
— v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100 …. 10.28, 10.30, 10.44, 10.47,
10.54, 10.56, 10.63, 10.65, 10.75, 12.17, 15.100
Gilchrist, Watt & Cunningham v Logan [1927] St R Qd 185 …. 6.47
Giller v Procopets (2008) 24 VR 1 …. 7.4, 7.6, 7.26
Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 …. 6.13, 6.19, 6.22
Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 …. 18.22
Giumelli v Johnston (1991) Aust Torts Reports ¶81-085 …. 6.7
Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191 …. 11.63, 13.94
Glanville v Sutton [1928] 1 KB 571 …. 26.6, 26.8
Glasgow Corporation v Muir [1943] AC 448 …. 11.4
Glass v Hollander (1935) 35 SR (NSW) 304 …. 5.44
Glenmont Investments Pty Ltd v O’Loughlin (2000) 79 SASR 185 …. 15.49
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25 …. 19.106, 24.36
Goddard Elliott (a firm) v Fritsch [2012] VSC 87 …. 11.15
Godhard v James Inglis & Co Ltd (1904) 2 CLR 78 …. 22.74
Goffin v Donnelly (1881) 6 QBD 307 …. 23.20
Gold v Essex County Council [1942] 2 KB 293 …. 20.18
Goldman v Hargrave (1966) 115 CLR 458; [1967] 1 AC 645 …. 11.61, 25.35, 25.52, 25.93
Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 …. 23.83
Google Inc v Australian Competition and Consumer Commission (2013) 294 ALR 404 …. 19.98
Gordon v Tamworth Jockey Club Inc (2003) Aust Torts Reports ¶81-698 …. 9.25
Gorringe v Transport Commission (Tas) (1950) 80 CLR 357 …. 10.146
Gorris v Scott (1874) LR 9 Ex 125 …. 18.24
Goss v Nicholas [1960] Tas SR 133 …. 3.69, 6.33
Gottlieb v Gleiser [1958] 1 QB 267n …. 17.13
Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527 …. 15.146, 19.68, 19.81, 19.83
Government Insurance Office (NSW) v Best (1993) Aust Torts Reports ¶81-210 …. 11.104, 12.53
— v Mackie (1990) Aust Torts Reports ¶81-053 …. 15.66
— v Rosniak (1992) 27 NSWLR 665 …. 15.131
— v Sharah (1993) 19 MVR 279 …. 11.82
Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 …. 18.19
Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321 …. 15.73, 15.94
Graff Bros Estates Ltd v Rimrose Brook Joint Sewerage Board [1953] 2 QB 318 …. 25.18
Graham v Baker (1961) 106 CLR 340 …. 15.54, 15.68, 15.135
— v Morris [1974] Qd R 1 …. 4.20
— v Royal National Agricultural and Industrial Association of Queensland [1989] 1 Qd R 624 …. 26.38
— v Voigt (1989) Aust Torts Reports ¶80-296 …. 5.87
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 …. 9.123, 10.15, 10.22, 10.28,
10.39, 10.137, 10.139, 11.65
Grainger v Hill (1838) 4 Bing NC 212; 132 ER 160 …. 18.42, 18.45
Gran Gelato v Richcliff (Group) Ltd [1992] 2 WLR 867 …. 9.104
Grange Motors (Cwmbran) Ltd v Spencer [1969] 1 WLR 53 …. 19.1, 19.4
Grant v Australian Knitting Mills Ltd [1936] AC 85 …. 8.11, 9.125
— v YYH Holdings Pty Ltd [2012] NSWCA 360 …. 5.63
Grant Pastoral Co Pty Ltd v Thorpe’s Ltd (1953) 54 SR (NSW) 129 …. 25.23
Gray v Jones [1939] 1 All ER 798 …. 22.16
— v Motor Accident Commission (1998) 196 CLR 1; 158 ALR 485 …. 1.36, 2.10, 15.20
Gray by her tutor Gray v Richards (2014) 253 CLR 660; 313 ALR 579 …. 15.131
Great Lakes Shire Council v Dederer; Roads and Traffic Authority of New South Wales v Dederer
(2006) Aust Torts Reports ¶81-860 …. 11.52, 11.59
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 …. 22.36
Green v Button (1835) 2 CM & R 707 …. 24.38
Gregg v Scott [2005] 2 WLR 268 …. 12.20
Grego v Mt Isa Mines Ltd [1972] QWN 33 …. 15.135
Gregory v New South Wales [2009] NSWSC 559 …. 9.71
Grehan v Kann [1948] QWN 40 …. 3.37, 3.38
Greig v Greig [1966] VR 376; [1966] ALR 989 …. 4.61
— v Insole [1978] 3 All ER 449; [1978] 1 WLR 302 …. 24.38, 24.39, 24.41, 24.50, 24.55
Gribben v Woree Caravan Park and Motels [1970] Qd R 420 …. 9.9
Griffiths v Benn (1911) 27 TLR 346 …. 22.86
— v Doolan [1959] Qd R 30 …. 13.19
— v Haines [1984] 3 NSWLR 653 …. 20.20
— v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387 …. 15.89, 15.90, 15.93, 15.101, 15.102, 15.104, 16.29
Grima v RFI (Aust) Pty Ltd [2015] NSWSC 332 …. 21.24
Grincelis v House (2000) 201 CLR 321; 173 ALR 564 …. 15.146
Groom v Crocker [1939] 1 KB 194 …. 1.29, 9.91
Gross v Lewis Hillman Ltd [1970] Ch 445 …. 19.78
Grosse v Purvis (2003) Aust Torts Reports ¶81-706 …. 7.25, 7.26, 7.27
Grosvenor Hotel Company v Hamilton [1894] 2 QB 836 …. 25.71
Groves v Commonwealth (1982) 150 CLR 113; 40 ALR 193 …. 20.19
— v Lord Wimborne [1898] 2 QB 402 …. 9.48, 18.2, 18.13, 18.17
— v United Pacific Transport Pty Ltd [1965] Qd R 62 …. 15.150
Grubb v Bristol United Press Ltd [1963] 1 QB 309 …. 22.58
Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641 …. 4.18
Gugiatti v Servite College Council Inc [2004] WASCA 5 …. 9.72
Guildford Rugby League Football & Recreational Club Ltd v Coad (2001) Aust Torts Reports ¶81-623
…. 11.42
Guise v Kouvelis (1947) 74 CLR 102 …. 23.36, 23.40
Gunning v Fellows (1997) 25 MVR 97 …. 11.31
Gutkin v Gutkin [1983] 2 Qd R 764 …. 15.94
Gwinnett v Day [2012] SASC 43 …. 5.52
GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376 …. 24.51
H
H v New South Wales [2009] NSWDC 193 …. 9.71
— v Royal Alexandra Hospital for Children (1990) Aust Torts Reports ¶81-000 …. 11.17, 11.56
Haber v Walker [1963] VR 339 …. 12.74, 12.76, 16.12, 16.13
Habib v Commonwealth (No 2) (2009) 175 FCR 350; 254 ALR 250 …. 24.75, 24.77
— v Nationwide Pty Ltd (No 2) [2010] NSWCA 291 …. 15.18
Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417 …. 2.9, 2.22, 3.18, 13.76
Haddon v Lynch [1911] VLR 5 …. 25.17
— v — [1911] VLR 230 …. 25.45
Hadzigeorgiou v O’Sullivan [1983] 1 Qd R 55 …. 15.144
Hahn v Conley (1971) 126 CLR 276 …. 1.24, 9.78
Haines v Bendall (1991) 172 CLR 60; 99 ALR 385 …. 15.25, 15.26
Hale v Brooklands Auto Racing Club [1933] 1 KB 205 …. 13.66
— v Cramer (2003) 40 MVR 477 …. 15.135
— v Foneca [1985] WAR 309 …. 3.31
— v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 …. 22.68
— v Victorian Railway Commissioner (1953) 87 CLR 529 …. 11.80
— v WorkCover Queensland [2015] 2 Qd R 88 …. 16.49
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 …. 24.89, 24.96
Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331 …. 4.2, 4.27, 4.28, 6.6, 6.9
Hallowell v Nominal Defendant (Qld) [1983] 2 Qd R 266 …. 13.20, 13.28
Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683 …. 25.15, 25.33, 25.43, 25.45
Hamcor Pty Ltd v Queensland [2014] QSC 224 …. 18.33
— v — [2015] QCA 183 …. 18.33
Hamilton v Long [1905] 2 IR 552 …. 17.25
— v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 …. 1.43, 9.32
Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171 …. 25.56
Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285 …. 4.7
Hampton Court Ltd v Crooks (1957) 97 CLR 367 …. 11.106
Hancock v Nominal Defendant [2002] 1 Qd R 578 …. 10.55, 10.56, 10.62
— v Queensland [2002] QSC 027 …. 11.21
Handcock v Baker (1800) 2 Bos & P 260; 126 ER 1270 …. 3.70
Hanlon v Hanlon [2006] TASSC 1 …. 16.33, 16.34, 16.37
Hannah Louis Group Pty Ltd t/as Maxum Transport v Maxum Taxi Trucks Pty Ltd [2011] NSWSC 291
…. 24.23
Hanrahan v Ainsworth (1990) 22 NSWLR 73 …. 18.46, 18.50
Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14 …. 4.58, 15.46
Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1 …. 24.9, 24.10, 24.19, 24.23,
24.35
Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 …. 15.4
Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 …. 22.39
Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192 …. 23.5, 23.33, 23.43, 23.44, 23.45,
23.46
Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403 …. 10.94, 10.105, 10.106, 24.5
Hardie (Qld) Employees Credit Union Ltd v Hall Chadwick & Co [1980] Qd R 362 …. 9.92
Harding v Lithgow Municipal Council (1937) 57 CLR 186 …. 16.10
Hardware Services Pty Ltd v Primac Association Ltd [1988] 1 Qd R 393 …. 9.104
Hardy v Ryle (1829) 9 B & C 603; 109 ER 224 …. 14.13
Hargrave v Goldman (1963) 110 CLR 40 …. 25.2, 25.27, 25.52, 25.93
Harmer v Hare (2011) 59 MVR 1 …. 13.26
— v — [2012] HCASL 21 …. 13.26
Harper v G N Haden & Sons Ltd [1933] Ch 298 …. 25.88, 25.89
Harris v Bulldogs Rugby League Club Ltd (2006) Aust Torts Reports ¶81-838 …. 11.68
— v Carnegie’s Pty Ltd [1917] VLR 95 …. 25.33
Harrison v Bush (1855) 5 E & B 344; 119 ER 509 …. 23.40
— v Melhem (2008) 72 NSWLR 380 …. 15.100
— v Thornborough (1713) 10 Mod 196; 88 ER 691 …. 22.52
Harriton v Stephens (2004) 59 NSWLR 694 …. 8.5, 12.5
— v — (2006) 226 CLR 52; 226 ALR 391 …. 1.10, 1.11, 1.16, 1.25, 1.35, 9.77, 9.99, 10.2, 10.5, 10.15,
10.28, 12.1, 12.7, 12.11, 12.12
Harvey v PD (2004) 59 NSWLR 639 …. 9.100, 12.86
— v Shire of St Arnaud (1879) 5 VLR 315 …. 25.80
Haseldine v Daw [1941] 2 KB 343 …. 9.123, 11.20
Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434 …. 3.72
Hasselblad (GB) Ltd v Orbinson [1985] QB 475 …. 23.25
Havyn Pty Ltd v Webster (2005) 12 BPR 22,837 …. 19.106
Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 …. 23.81
Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69 …. 1.29, 9.91, 9.94, 9.107, 10.99, 14.23, 14.26
— v Coulsdon and Purley Urban District Council [1954] 1 QB 319 …. 9.9
Hay or Bourhill v Young [1943] AC 92; [1942] 2 All ER 396 …. 9.62, 10.8, 10.41, 12.1
Haynes v Harwood [1935] 1 KB 146 …. 12.1, 12.78, 13.98
Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 …. 3.5
Haythorpe v Rae [1972] VR 633 …. 5.100
Hayward v Thompson [1982] 1 QB 47 …. 22.70, 22.72
Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 …. 4.26, 5.42, 5.76, 5.89
Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 …. 22.85
Heather, Re; Director-General, Department of Community Services v M [2003] NSWSC 532 …. 6.20
Heaven v Pender (1883) 11 QBD 503 …. 8.10, 9.123
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 …. 1.43, 10.79, 10.81, 19.10, 19.11, 19.12,
19.13, 19.15, 19.19, 19.21, 19.44, 19.46, 19.51, 19.79
Hegarty v Shine (1878) 14 Cox CC 124 …. 6.10
Hemmings v Stokes Poges Golf Club [1920] 1 KB 720 …. 4.49
Henderson v Henry E Jenkins & Sons [1970] AC 282 …. 11.111
— v Radio Corporation Pty Ltd [1969] RPC 218 …. 24.11, 24.13, 24.25, 24.33
Henly v Mayor of Lyme (1828) 5 Bing 91; 130 ER 995 …. 18.60
Henry v Thompson [1989] 2 Qd R 412 …. 3.79, 3.84
— v TVW Enterprises Ltd (1990) 3 WAR 474 …. 22.46, 22.66
Henry Berry & Co Pty Ltd v Rushton [1937] St R Qd 109 …. 5.16, 6.45
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 …. 13.76
Henville v Walker (2001) 206 CLR 459; 182 ALR 37; [2001] HCA 52 …. 12.58, 19.57, 19.112
Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 …. 22.88
Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 …. 23.118
— v Popovic (2003) 9 VR 1 …. 23.5
Hercules v Phease [1994] 2 VR 411 …. 23.25, 23.28
Herd v Weardale Steel Coke and Coal Co Ltd [1915] AC 67 …. 3.63
Hewitt v Bonvin [1940] 1 KB 188 …. 20.11, 20.54
Heydon v NRMA Ltd (2000) 51 NSWLR 1 …. 9.92, 9.103, 9.107, 11.14
Heywood v Miller [2005] ACTSC 4 …. 9.63
Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 …. 26.7, 26.14
Hill v Cooke [1958] SR (NSW) 49 …. 15.14
— v Higgins [2012] NSWSC 270 …. 4.52
— v Reglon Pty Ltd [2007] NSWCA 295 …. 5.11, 5.44
— v Richards [2011] NSWCA 291 …. 11.68
Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 …. 9.94, 9.106, 10.14,
10.21, 10.22, 10.28, 10.98, 10.99, 10.100, 10.102, 10.103, 10.104, 10.105, 10.106, 19.18, 19.45
Hillesden Securities Ltd v Ryjack Ltd [1983] 1 WLR 959 …. 5.90
Hiort v Bott (1847) LR 9 Ex 86 …. 5.39, 5.46
— v London & North Western Railway Co (1879) 4 Ex D 188 …. 5.39
Hird v Gibson [1974] Qd R 14 …. 12.68, 17.11
Hirst v Nominal Defendant [2005] 2 Qd R 133 …. 13.18
Hisgrove v Hoffman (1981) 29 SASR 1 …. 15.40
Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 …. 15.47
Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 …. 5.3, 24.10
Hobbelen v Nunn [1965] Qd R 105 …. 15.136
Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 …. 23.135
— v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 …. 5.9, 11.111
— v Tinling [1929] 1 KB 1 …. 23.134
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 …. 22.50, 23.48
Hocking v Bell (1947) 75 CLR 125 …. 11.91, 11.93
Hodges v Frost (1984) 53 ALR 373 …. 15.152
Hoffman v Boland (by her tutor Boland) [2013] NSWCA 158 …. 9.77
Hogan v A G Wright Pty Ltd [1963] Tas SR 44 …. 4.59
— v Koala Dundee Pty Ltd [1988] 83 ALR 187 …. 24.33
Hogan (an infant by his next friend Williams) v Gill (1992) Aust Torts Reports ¶81-182 …. 2.17, 3.3
Holding v Jennings [1979] VR 289 …. 23.18, 23.20
Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71; [1972] 1 All ER 399 …. 5.9
Hollins v Fowler (1875) LR 7 HL 757 …. 5.41, 5.53, 5.55
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 …. 20.5, 20.8, 20.9, 20.14, 20.16, 20.53
Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 …. 25.52, 25.98
Holmes v Jones (1907) 4 CLR 1692 …. 19.86
— v Mather (1875) LR 10 Ex 261 …. 2.3, 13.65
Home Office v Dorset Yacht Co Ltd [1970] AC 1004 …. 9.89, 10.9, 10.33
Honey v Australian Airlines Ltd (1990) 18 IPR 185 …. 24.26
Hookey v Peterno (2009) 22 VR 362 …. 11.71
Hopper v Reeve (1817) 7 Taunt 698; 129 ER 278 …. 3.5
Horan v Ferguson [1995] 2 Qd R 490 …. 3.42
Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 …. 2.24, 6.60
Hornsby Building Information Centre Pty Ltd v Building Information Centre Ltd (1978) 140 CLR 216
…. 24.100
Horsfall v Thomas (1862) 1 H & C 90; 158 ER 813 …. 19.4, 19.80
Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 14,360 …. 5.5
Horton v Byrne (1956) 30 ALJ 583 …. 16.35
Hosking v Runting [2005] 1 NZLR 1 …. 7.31
Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 …. 15.6, 24.49
Host v Bassett (1983) 48 ALR 404 …. 11.99
Hotson v East Berkshire Area Health Authority [1987] AC 750 …. 12.20, 12.45
— v Fitzgerald [1985] 1 WLR 1036 …. 9.95
Hough v London Express Newspaper Ltd [1940] 2 KB 507 …. 22.57
Houghland v R R Low (Luxury Coaches) Ltd [1962] 2 All ER 159 …. 5.69
House v Forestry Tasmania (1995) Aust Torts Reports ¶81-331 …. 11.59
Howard v Jarvis (1958) 98 CLR 177 …. 9.83, 9.85, 9.86
— v Wing [2000] TASSC 147 …. 6.30
Howard Marine and Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd [1978] QB 574 …. 19.35
Howden v ‘Truth’ & ‘Sportsman’ Ltd (1937) 58 CLR 416; [1938] ALR 208 …. 23.5
Howe v Lees (1910) 11 CLR 361 …. 23.41, 23.42
Hoyts Pty Ltd v Burns (2003) 201 ALR 470; 77 ALJR 1934 …. 9.18, 9.20, 12.55
Hribar v Wells (1995) Aust Torts Reports ¶81-345 …. 9.96
Hudson v Nicholson (1839) 5 M & W 437; 151 ER 185 …. 4.47
Huet v Lawrence [1948] St R Qd 168 …. 5.72
Hughes v Lord Advocate [1963] AC 837 …. 12.64
— v SDN Children’s Services Inc [2002] NSWCA 11 …. 9.43
— v South Australia (1982) 29 SASR 161 …. 9.43
— v Tucaby Engineering Pty Ltd [2011] QSC 256 …. 13.15
Huljich v Hall [1973] 2 NZLR 279 …. 24.77
Humphries v TWT Ltd (1993) 120 ALR 693 …. 23.118, 23.122
Hungerfords v Walker (1989) 171 CLR 125; 84 ALR 119 …. 15.51
Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; 296 ALR 3 …. 21.36
Hunter v Canary Wharf Ltd [1996] 1 All ER 482; [1996] 2 WLR 348 …. 1.11, 1.12
— v — [1997] AC 655 …. 25.7, 25.31, 25.38, 25.44, 25.72
Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 …. 3.14, 6.22, 6.25, 6.26
Hunter and New England Local Health District v McKenna; Hunter and New England Local Health
District v Simon (2014) 253 CLR 270; 314 ALR 505 …. 10.28, 10.71
Hunter Area Health Service v Presland (2005) 63 NSWLR 22 …. 12.84
Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41 …. 5.31, 5.76, 5.88
— v CG Maloney Pty Ltd (1989) 18 NSWLR 420 …. 5.3
Husher v Husher (1999) 197 CLR 138; 165 ALR 384 …. 15.70
Hutchins v Maughan [1947] VLR 131 …. 2.2, 2.13, 5.18
Hutchinson v York, Newcastle & Berwick Railway Company (1850) 5 Exch 343; 155 ER 150 …. 9.28
Huth v Huth [1915] 3 KB 32 …. 22.76
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelsmen Agency Pty Ltd (2002) 18 BCL 122; [2001]
NSWCA 313 …. 15.48
Hyett v Great Western Railway Co [1948] 1 KB 345 …. 12.78
Hyland v Campbell (1995) Aust Torts Reports ¶81-352 …. 9.108
I
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; 192 ALR 1 …. 19.111,
19.112
IBL Ltd v Coussens [1991] 2 All ER 133 …. 5.86
Illawarra Newspapers v Butler [1981] 2 NSWLR 502 …. 23.80
Illustrated Newspapers Ltd v Publicity Services (London) Ltd [1938] 1 Ch 414 …. 24.22
Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 …. 1.57, 9.57, 9.60, 11.6, 11.23, 11.24, 11.25,
11.26, 13.50, 13.51, 13.55, 13.59, 13.65
Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 …. 13.57, 18.38
Independent Oil Industries Ltd v Shell Co of Australia Ltd (1937) 37 SR (NSW) 394 …. 24.43
Indermaur v Dames (1866) LR 1 CP 274 …. 9.9
Inland Revenue Commissioners v Goldblatt [1972] Ch 498 …. 18.18
Innes v Wylie (1844) 1 Car & Kir 257; 174 ER 800 …. 3.6
Insurance Commissioner v Joyce (1948) 77 CLR 39 …. 9.60, 11.26, 13.61, 13.62
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26 ….
19.45
Inverell Municipal Council v Pennington (1993) Aust Torts Reports ¶81-234 …. 11.43
Irvin v Whitrod (No 2) [1978] Qd R 271 …. 20.20
Irvine v Talksport Ltd [2002] 2 All ER 414; 1 WLR 2355 …. 24.13
Irwin v Salvation Army (NSW) Property Trust [2007] NSWDC 266 …. 18.21
J
J & K Clothing Pty Ltd v Mahmoud [2004] NSWCA 207 …. 12.17
J T Stratford & Sons Ltd v Lindley [1965] AC 269; [1964] 3 All ER 102 …. 24.44, 24.53, 24.75, 24.80
Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952 …. 13.70
Jack Brabham Engines Ltd v Beare [2010] FCA 872 …. 24.75
Jackson v Australian Consolidated Press Ltd [1966] 2 NSWR 775 …. 23.56
— v Harrison (1978) 138 CLR 438; 19 ALR 129 …. 13.73, 25.101
— v Jackson (1970) 2 NSWR 454 …. 15.117
— v Normanby Brick Co (1899) 1 Ch 438 …. 25.70
— v Watson & Sons [1909] 2 KB 193 …. 16.1
Jacobi v Griffiths (1999) 174 DLR (4th) 71 …. 20.41
Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 …. 1.43, 10.12, 10.13, 10.42, 10.44, 10.48, 10.49,
10.52, 10.57, 10.61
James v ANZ Banking Group Ltd (1986) 64 ALR 347 …. 19.108
— v Commonwealth (1939) 62 CLR 339 …. 24.42
— v Oxley (1939) 61 CLR 433 …. 5.47
— v Wellington City [1972] NZLR 978 …. 26.10
James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268 …. 21.1, 21.17, 21.18,
21.20
James Thane Pty Ltd v Conrad International Hotels Corp [1999] QCA 516 …. 9.42
Jan De Nul (UK) Ltd v AXA Royale Belge SA (formerly NV Royale Belge) [2000] 2 Lloyd’s Rep 700 ….
25.85, 25.86
Jandson Pty Ltd v Welsh [2008] NSWCA 317 …. 11.51
Janvier v Sweeney [1919] 2 KB 316 …. 7.2
Jarvis v Scrase [2000] 2 Qd R 92 …. 9.73
Jazabas Pty Ltd v City of Botany Bay Council (2000) ANZ ConvR 616 …. 19.58
Jeffrey v Honig [1999] VSC 337 …. 25.6, 25.24
Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 …. 23.118
Jekos Holdings Pty Ltd v Australian Horticultural Finance Pty Ltd [1994] 2 Qd R 515 …. 19.116
Jellie v Commonwealth [1959] VR 72 …. 11.66
Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; 277 ALR 257 ….
25.19
Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226 …. 20.57
Joblins v Associated Dairies Ltd [1982] AC 794 …. 12.52
Joel v Morison (1834) 6 Car & P 501; 172 ER 1338 …. 20.30
John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 …. 5.60, 5.62, 5.68,
5.69
John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 …. 22.42
John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 …. 23.15, 23.85
— v Gacic (2007) 230 CLR 291; 235 ALR 402 …. 22.45, 22.63
— v Obeid (2005) 64 NSWLR 485 …. 22.88
— v Rivkin (2003) 201 ALR 77 …. 22.36, 22.63
— v Zunter [2006] NSWCA 227 …. 23.14
John Lewis Co Ltd v Tims [1952] AC 676 …. 3.65
John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656 …. 19.4, 19.74
John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218; 36 ALR 466 …. 8.17, 18.35
Johnson v Buchanan [2012] VSC 195 …. 26.23
— v Commonwealth (1927) 27 SR (NSW) 133 …. 7.2
— v Deep Level Gold Mines of Charters Towers Ltd [1903] St R Qd 190 …. 16.10
— v Kent (1975) 132 CLR 164; 5 ALR 201 …. 25.89
— v Perez (1988) 166 CLR 351; 82 ALR 587 …. 15.25
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports ¶81-692 …. 1.57, 10.28, 10.90,
10.93, 10.96
Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137 …. 9.23, 20.77
— v Dapto Leagues Club Ltd [2008] NSWCA 32 …. 13.36
— v Department of Employment [1989] QB 1 …. 6.51
— v Dumbrell [1981] VR 199 …. 19.75
— v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 …. 23.60, 23.62
— v Jones [1916] 2 AC 481 …. 22.16
— v — [1982] Tas R 282 …. 15.94
— v Linnett [1984] 1 Qd R 570 …. 26.5, 26.15, 26.24
— v Manchester Corporation [1952] 2 QB 852 …. 11.21
— v Schiffmann (1971) 124 CLR 303 …. 16.38
— v Shire of Perth [1971] WAR 56 …. 4.55, 4.58, 15.46, 25.74
— v Skelton [1963] 3 All ER 952; [1963] 1 WLR 1362 …. 22.11, 22.52, 22.56, 22.61
— v Stones [1999] 1 WLR 1739 …. 4.42
— v Sutton (2004) 61 NSWLR 614 …. 23.97
— v Tsige (2012) ONCA 32 …. 5.31
— v Williams (1843) 11 M & W 176; 152 ER 764 …. 25.68
— v Wright [1991] 3 All ER 88 …. 10.41
— v Wrotham Park Settled Estates [1980] AC 74; [1979] 1 All ER 286; [1979] 2 WLR 132 …. 16.45
Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 QB 275 …. 17.2, 24.55
Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 …. 11.26, 13.5, 13.8, 13.12, 13.24, 13.43, 13.47,
13.62
Joyce v Motor Surveys Ltd [1948] Ch 252 …. 24.92
Jull v Wilson & Horton [1968] NZLR 88 …. 9.123
K
Kakouris v Gibbs Burge & Co Pty Ltd (1970) 44 ALJR 384 …. 18.40
Kalo v Bristol Omnibus Co Ltd [1975] 1 WLR 1054 …. 15.73
Kars v Kars (1996) 187 CLR 354; 141 ALR 37 …. 1.57, 15.61, 15.91, 15.95
Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181; 52 ALJR 189 …. 11.97
Kavanagh v Akhtar (1998) 45 NSWLR 588 …. 12.68
Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515 …. 9.108, 9.109
Kealley v Jones [1979] 1 NSWLR 723 …. 17.10
Keefe v Marks (1989) 16 NSWLR 713 …. 9.112
— v R T & D M Spring Pty Ltd [1985] 2 Qd R 363 …. 15.151
Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR ¶40-853 ….
19.116
Kelly v Alford [1988] 1 Qd R 404 …. 20.87
— v Bluestone Global Ltd (in liq) [2016] WASCA 90 …. 20.23, 20.24
Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334 …. 4.6, 4.20
Kemsley v Foot [1951] 2 KB 34 …. 23.78
— v — [1952] AC 345 …. 23.80
Kenny & Good Pty Ltd v MQICA (1992) Ltd (1999) 73 ALJR 901 …. 19.45
Kensington Starch & Maizena Co Ltd v Essendon and Flemington Corporation (1880) 6 VLR (L) 265
…. 25.6
Kent v Parer [1922] VLR 32 …. 5.5
— v Scattini [1961] WAR 74 …. 13.60
Kepa v Lessbrook Pty Ltd (in liq) [2012] QSC 311 …. 16.28
Keppel Bus Co Ltd v Sa’ad bin Ahmad [1974] 2 All ER 700; [1974] 1 WLR 1082 …. 20.35
Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 …. 25.70
Kestrel Holdings Pty Ltd (ACN 009 590 265) v APF Properties Pty Ltd (ACN 095 297 019) (2009) 260
ALR 418 …. 19.45
Key v Commissioner for Railways (1941) 64 CLR 619 …. 9.34
Khorasandjian v Bush [1993] QB 727 …. 1.12, 25.7, 25.96
Kiddle v City Business Properties Ltd [1942] 1 KB 269 …. 25.101
Kidman v Page [1959] Qd R 53 …. 25.42, 25.43
King v Coupland [1981] Qd R 121 …. 14.40
— v Crowe [1942] St R Qd 288 …. 3.37, 3.38
— v Philcox (2014) 320 ALR 398 …. 10.70
Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339 …. 22.44
Kirby v Leather [1965] 2 QB 367 …. 14.40
Kirk v Gregory (1876) 1 Ex D 55 …. 5.20, 5.73
— v Nominal Defendant [1984] 1 Qd R 592 …. 13.19
Kirkham v Boughey [1958] 2 QB 338 …. 17.19
Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 …. 19.111
KLB v British Columbia (2003) 2 SCR 403 …. 20.17
Knapp v Railway Executive [1949] 2 All ER 508 …. 18.26
Knight v Beyond Properties Pty Ltd (2007) 71 IPR 466 …. 24.6
— v — (2007) 242 ALR 586 …. 24.17
— v R (1988) 35 A Crim R 314 …. 3.22
Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; 299 ALR 74 …. 24.10
Knupffer v London Express Newspaper Ltd [1944] AC 116 …. 22.64, 22.74
Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; 214 ALR 355 …. 1.30, 9.7, 9.26, 9.35, 10.28, 10.30,
10.47, 10.48, 10.51, 10.73, 10.74
Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225 …. 9.47, 9.102, 20.62, 20.64, 20.65,
20.71, 20.72, 20.73, 20.78, 20.81
Kondracuik v Jackson Morgan & Sons (1988) 47 SASR 280 …. 18.40
Konskier v B Goodman Ltd [1928] 1 KB 421 …. 4.42, 4.46
Kooragang Investments Pty Ltd v Richardson & Wrench Ltd (1981) 36 ALR 142 …. 20.35
Koremans v Sweeney [1966] QWN 46 …. 15.136
Kostik v Giannakopoulos (1989) Aust Torts Reports ¶80-274 …. 15.65
Kouris v Prospector’s Motel Pty Ltd (1977) 19 ALR 343 …. 11.97
Koursk, The[1924] P 140 …. 21.5
Kraemers v Attorney-General (Tas) [1966] Tas SR 113 …. 25.15, 25.54, 25.81, 25.96, 25.99
Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 …. 22.35, 22.36, 22.82
Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 69 ALJR 629 …. 19.4, 19.70, 19.74, 19.80
Kralj v McGrath [1986] 1 All ER 54 …. 15.24
Kretschmar v Queensland (1989) Aust Torts Reports ¶80-272 …. 11.67
Kriz v King [2007] 1 Qd R 327 …. 15.100, 15.102
Kruse v Lindner (1978) 19 ALR 85 …. 22.77
Kuchenmeister v Home Office [1958] 1 QB 496 …. 3.53
Kudrin v City of Mandurah [2012] WASCA 65 …. 10.130
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 …. 9.5, 9.6, 9.7, 10.38
Ku-ring-gai Co-operative Building Society (No 12) Ltd, Re (1978) 36 FLR 134 …. 19.100
Ku-ring-gai Municipal Council v Bonnici [2002] NSWCA 313 …. 25.81
Kuru v New South Wales (2008) 246 ALR 260 …. 4.35, 6.28
Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883;
[2002] 3 All ER 209 …. 5.39, 5.42
L
L v Commonwealth (1976) 10 ALR 269 …. 9.86
L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 …. 1.6, 1.57,
19.16, 19.25, 19.32, 19.40, 19.51, 19.60
Lade & Co Pty Ltd v Black [2007] QSC 385 …. 26.24
Lafranchi v Transport Accident Commission (2006) 14 VR 359 …. 11.110
Lagan Navigation Co v Lambeg Bleaching Dyeing and Finishing Co [1927] AC 226 …. 25.68
Lai v Chamberlains [2005] 3 NZLR 291 …. 9.113
Lake v Taggart (1978) 1 SR (WA) 89 …. 26.4
Lam v South Australia (2004) 234 LSJS 414; [2004] SADC 110 …. 9.89
Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188 …. 1.36, 15.20
Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244 …. 20.36
Lampert v Eastern National Omnibus Co Ltd [1954] 1 WLR 1047 …. 17.11
Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 …. 4.69
Lancashire Railway Co v MacNicoll (1919) 88 LJKB 601 …. 5.40
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96 …. 23.44, 23.71, 23.73,
23.75, 23.76, 23.77
Langridge v Levy (1837) 2 M & W 519; 150 ER 863 …. 19.74, 19.78
Lanphier v Phipos (1838) 8 C & P 475; 173 ER 581 …. 11.14
Lansdown v WTH Pty Ltd (1990) 10 MVR 355 …. 20.59
Laoulach v Ibrahim [2011] NSWCA 402 …. 13.70
Latham v Singleton [1981] 2 NSWLR 843 …. 24.60, 24.62, 24.72, 24.79, 24.81, 24.83, 24.85, 24.86
Latter v Braddell (1881) 44 LT 369 …. 6.5
Laugher v Pointer (1826) 5 B & C 547; 108 ER 204 …. 25.8
Laundess v Laundess (1994) 20 MVR 156 …. 9.123
Laut & Loughlin v White Feather Main Reefs (1905) 7 WALR 203 …. 15.64, 15.65
Law v Visser [1961] Qd R 46 …. 3.15
— v Wright [1935] SASR 20 …. 3.76, 15.14
Lawrence v Biddle [1966] 2 QB 504 …. 17.17
— v Fen Tigers Ltd [2011] EWHC 360 (QB) …. 25.64
— v Fen Tigers Ltd (No 2) [2015] AC 106 …. 25.12
— v Keenan (1935) 53 CLR 153 …. 5.16
— v Slatcher [1968] VR 337 …. 17.6
Le Bagge v Buses [1958] NZLR 630 …. 12.9
Le Fanu v Malcomson (1848) 1 HLC 637 …. 22.86
Le Lievre v Gould [1893] 1 QB 491 …. 19.1
League Against Cruel Sports Ltd v Scott [1986] QB 240 …. 4.40, 4.43, 26.28
Leake v Loveday (1842) 4 Man & G 972; 134 ER 399 …. 6.45
Leakey v National Trust [1980] QB 485 …. 25.11, 25.35
Leask Timber and Hardware Pty Ltd v Thorne (1961) 106 CLR 33 …. 18.35
LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 …. 24.48
Lee v Lee’s Air Farming Ltd [1961] AC 12 …. 17.4
— v Wilson (1934) 51 CLR 276 …. 22.68
Lee Transport Co Ltd v Watson (1940) 64 CLR 1 …. 15.151
Leerdam v Noori [2009] NSWCA 90 …. 18.48
Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 …. 20.78
— v — (2007) 230 CLR 22; 233 ALR 200 …. 8.10, 9.7, 10.28, 10.38, 10.132, 10.135, 20.8, 20.78, 20.80
20.83, 25.84
Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; 258 ALR 673 …. 9.31, 20.65
Leinenga v Logan City Council [2006] QSC 294 …. 18.52
Lemaire v Smith’s Newspaper Ltd (1927) 28 SR (NSW) 161 …. 23.132
Lemmon v Webb [1895] AC 1 …. 6.38, 25.68
Leonard v Pollock [2012] WASCA 108 …. 12.15
— v Smith (1992) 27 NSWLR 5 …. 21.24
Lepore v New South Wales (2001) 52 NSWLR 420 …. 20.81
Lester-Travers v City of Frankston [1970] VR 2 …. 25.32, 25.57
L’Estrange v Brisbane Gas Co [1928] St R Qd 180 …. 25.8
Letang v Cooper [1965] 1 QB 232 …. 2.6, 2.22, 2.24, 6.2
Lever Bros Ltd v Bedingfield (1899) 16 RPC 3 …. 24.29
Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48 …. 9.126
Lewis v Daily Telegraph Ltd [1964] AC 234 …. 22.31, 22.52, 22.55, 22.57, 22.83, 23.125
— v Levy (1858) EB & E 537; 120 ER 610 …. 23.61
Leyden v Caboolture Shire Council [2007] QCA 134 …. 11.32, 13.58
Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 …. 19.109
Liberty Financial Pty Ltd v Bluestone Group Pty Ltd [2005] FCA 470 …. 18.45
Lidner v Corp of City of Marion [2015] SASC 152 …. 18.16, 25.15
Liebig’s Extract of Meat Co Ltd v Hanbury (1867) 17 LT (NS) 298 …. 24.28
Liesbosch, Dredger v Edison SS (Owners) [1933] AC 449 …. 15.49
Liftronic Pty Ltd v Unver (2001) 179 ALR 321 …. 13.46
Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174 …. 15.141
Lincoln v Daniels [1962] 1 QB 237 …. 23.28
— v Gravil (1954) 94 CLR 430 …. 16.33
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 …. 4.29, 4.65
Lipman v Clendinnen; Phipps v Rochester Corporation [1955] 1 QB 450 …. 9.9
Lipovac v Hamilton Holdings Pty Ltd (1997) 136 FLR 400 …. 15.65
Lisle v Brice [2002] 2 Qd R 168 …. 12.76, 16.13, 16.14
Lister v Hesley Hall Ltd [2002] 1 AC 215; [2001] 2 WLR 1131 …. 20.6, 20.41, 20.42, 20.49
— v Romford Ice & Cold Storage Co Ltd [1957] AC 555 …. 20.85, 20.86, 20.87, 21.25, 21.27
Little v Commonwealth (1947) 75 CLR 94 …. 3.67, 20.21
— v Law Institute of Victoria [1990] VR 257 …. 7.14, 18.51
Littler v Price [2005] 1 Qd R 275 …. 9.109
Liverpool City Council v Laskar (2010) 77 NSWLR 666 …. 15.106
Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 …. 10.57
Livingstone-Thomas v Associated Newspapers Ltd [1969] 1 NSWR 771 …. 22.82
LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 …. 4.20, 4.68
Llavero v Shearer [2014] NSWSC 1336 …. 20.71
Lloyd v Borg bht NSW Trustee and Guardian (2013) 84 NSWLR 652 …. 20.58
— v David Syme & Co Ltd [1986] AC 350; (1985) 63 ALR 83; 60 ALJR 10 …. 22.48, 22.74
— v Fanning (VSC, McDonald J, 4 November 1996, unreported) …. 7.14
— v Grace Smith & Co [1912] AC 716 …. 19.76, 20.37, 20.52
— v Lewis [1963] VR 277 …. 17.22
— v Osborne (1899) 20 LR (NSW) 190 …. 5.63, 5.67
Lloyds and Scottish Finance Ltd v Modern Cars & Caravans (Kingston) Ltd [1966] 1 QB 764 …. 15.42
Lloyds Bank Ltd v Chartered Bank of India, Australia and China [1929] 1 KB 40 …. 19.76
Lochgelly Iron & Coal Co Ltd v McMullan [1934] AC 1 …. 18.3, 18.26
London Artists Ltd v Littler [1969] 2 QB 375 …. 23.78
London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 …. 23.36, 23.41
London Borough of Southwark v Williams [1971] Ch 734 …. 6.41
London Corporation v Riggs (1880) 13 Ch D 798 …. 1.58
London Drugs Ltd v Kuehne and Nagel International Ltd [1992] 3 SCR 299 …. 20.5
London Steamboat Co v Bywell Castle (owners of) (1879) 4 PD 219 …. 13.14
Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 …. 18.16, 18.17
Lonrho plc v Fayed [1989] 3 WLR 631 …. 24.49, 24.73
— v — [1992] 1 AC 448 …. 24.68
Lorca v Holts Corrosion Control Pty Ltd [1981] Qd R 261 …. 15.39
Lord v McMahon [2015] NSWSC 1619 …. 4.23, 4.47, 25.68
— v Nominal Defendant (1980) 24 SASR 458 …. 2.20, 2.22
Lord Byron v Johnston (1816) 2 Mer 29; 35 ER 851 …. 24.22
Lormine Pty Ltd v Xuereb [2006] NSWCA 200 …. 13.68, 13.70
Love v Egan (1970) 65 QJPR 102 …. 6.35
Loveday v Paddison [1965] Qd R 535 …. 9.57
— v Sun Newspapers Ltd (1938) 59 CLR 503 …. 23.45
Lower Murray Urban and Rural Water Corp v Di Masi (2014) 43 VR 348 …. 23.69
Lowns v Woods (1996) Aust Torts Reports ¶81-376 …. 1.4
Lowry v Barlow [1921] NZLR 316 …. 3.44
Lowy v Alexander [2000] NSWSC 661 …. 9.105
Loxton v Waterhouse (1891) 7 WN (NSW) 98 …. 4.6
Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308 …. 18.15
Ludgater v Love (1881) 44 LT 694 …. 19.77
Luke v Luke (1936) 36 SR (NSW) 310 …. 4.10
Lumley v Gye (1853) 2 El & Bl 216; 118 ER 749 …. 24.38, 24.51, 24.58
Lumley Life Ltd v IOOF of Victoria Friendly Society (1990) 16 IPR 316 …. 24.17
Lyle v Soc (2009) 38 WAR 418 …. 16.15
Lynch v Lynch (1991) 25 NSWLR 411 …. 1.22, 1.24, 1.57, 9.59, 15.93, 15.95
— v Mudgee Shire Council (1981) 46 LGRA 204 …. 25.82
— v Shooters Saloon Bar Pty Ltd [2006] QCA 326 …. 11.65
Lyne v Nicholls (1906) 23 TLR 86 …. 24.93
Lyons, Sons & Co v Gulliver [1914] 1 Ch 631 …. 25.80, 25.89
M
M Isaacs & Sons Ltd v Cook [1925] 2 KB 391 …. 23.32
Maan v Westbrook [1993] 2 Qd R 267 …. 15.94
Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235 …. 9.61
MacCarthy v Young (1861) 6 H & N 329; 158 ER 136 …. 9.123
Macintosh v Dun (1908) 6 CLR 303; [1908] AC 390 …. 23.36
Macleay Pty Ltd (t/as Wobbies World) v Moore (1992) Aust Torts Reports ¶81-151 …. 13.105
MacPherson v Beath (1975) 12 SASR 174 …. 3.32
Macrocom Pty Ltd v City West Centre Pty Ltd [2003] NSWSC 898 …. 5.94
Madden v Seafolly Pty Ltd (2014) 313 ALR 1 …. 22.96, 23.45, 23.46
Madison Constructions Pty Ltd v Empire Building Group (ACT) Pty Ltd [2012] FCA 381 …. 24.23
Mafo v Adams [1970] 1 QB 548 …. 19.84
Magill v Magill (2006) 226 CLR 551; 231 ALR 277 …. 7.6, 19.67, 19.71, 19.80, 19.92
Maher-Smith v Gaw [1969] VR 371 …. 11.97, 11.98
Mahon v Osborne [1939] 2 KB 14 …. 11.15
— v Rahn (No 2) [2000] 1 WLR 2150 …. 7.13
Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59 ALR 722 …. 12.79, 12.80, 21.17
Maitland v Raisbeck [1944] KB 689 …. 25.88
Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224 …. 18.23
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 …. 15.67, 15.71
Mallett v Dunn [1949] 2 KB 180 …. 17.20
Malliate v Sharpe [2001] NSWSC 1057 …. 25.11
Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 …. 18.2
Malone v Laskey [1907] 2 KB 141 …. 25.5, 25.6, 25.7, 25.95
Malor v Ball (1900) 16 TLR 239 …. 26.10
Malyon v Plummer [1964] 1 KB 330 …. 16.23
Malzy v Eichholz [1916] 2 KB 308 …. 25.12
Management 3 Group Pty Ltd (in liq) v Lenny’s Commercial Kitchen’s Pty Ltd (2011) 281 ALR 482 ….
5.30
Manchester Corporation v Farnworth [1930] AC 171 …. 6.51
Manders v Williams (1849) 4 Exch 339; 154 ER 1242 …. 5.11
Manefield v Association of Quality Child Care Centres of NSW (t/as Child Care NSW) [2010] NSWSC
1420 …. 23.124, 23.126
Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413 …. 9.57, 9.62, 11.96
Manly Council v Byrne [2004] NSWCA 123 …. 13.11
Mann v Medicine Group Pty Ltd (1991) 105 FLR 419 …. 22.74
— v — (1992) 38 FCR 400 …. 22.74
— v O’Neill (1997) 191 CLR 204; 145 ALR 682 …. 23.25, 23.27, 23.28
— v Saulnier (1959) 19 DLR (2d) 130 …. 4.15
Mansell v Griffin [1908] 1 KB 160 …. 6.53
Mansfield v Baddeley (1876) 34 LT 696 …. 26.7
Manvell v Thomson (1826) 2 C & P 303; 172 ER 137 …. 17.24
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423; [1991] HCA 12 …. 8.19, 11.81,
12.25, 12.27, 12.34, 12.88, 19.57
Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 …. 25.39
Margery Farlam Lawyers Trust Accounts, Re (No 3) (2007) 96 SASR 337 …. 20.39
Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 …. 17.4
Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 153 ALR 602 …. 24.69
Mark v Barkla [1935] NZLR 347 …. 26.26
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 …. 19.110
Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169 …. 10.79, 10.80, 10.92, 25.2, 25.51
Marshall v Megna [2013] NSWCA 30 …. 23.37
— v Osmond [1983] QB 1034 …. 9.57, 11.67
Martin v Benson [1927] 1 KB 771 …. 15.18
— v Trustees of the British Museum (1894) 10 TLR 338 …. 22.93
— v Watson [1996] AC 74; [1995] 3 All ER 559 …. 7.13
Mason v Clarke [1955] AC 778 …. 4.12
Matthew v Flood [1938] SASR 312 …. 16.33
— v — (1939) 62 CLR 750 …. 16.33
— v — [1939] SASR 389 …. 16.33
— v — [1940] SASR 48 …. 16.33
Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57 …. 9.26
— v McCullock of Australia Pty Ltd [1973] 2 NSWLR 331 …. 18.35
May v Burdett (1846) 9 QB 101; 115 ER 1213 …. 26.10, 26.14
— v Mijatovic (2002) 26 WAR 95 …. 9.107
— v Thomas (No 2) [2012] WADC 96 …. 6.32
Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 …. 5.39
Maynes v Casey [2011] NSWCA 156 …. 4.32, 7.26
Mayor, Alderman and Burgesses of the Borough of Colchester v Brooke (1847) 7 QB 339 …. 25.68
Mbakwe v Sarkis [2009] NSWCA 330 …. 19.35
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; 98 ALR 193 …. 15.146
McCarty v Municipality of North Sydney (1918) 18 SR (NSW) 210 …. 25.6
McClelland v Symons [1951] VLR 157 …. 3.32, 6.30, 6.31
McClure v Commonwealth [1999] NSWCA 392 …. 20.36
McColl v Dionisatos (2002) Aust Torts Reports ¶81-652 …. 15.30
McCoy Constructions Pty Ltd v Dabrowski [2001] QSC 413 …. 25.47
McCullagh v Lawrence [1989] 1 Qd R 163 …. 16.39
McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906 …. 20.63
McDonald v Commonwealth (1945) 46 SR (NSW) 129 …. 20.23
— v Ludwig [2007] QSC 028 …. 6.16
— v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 …. 3.11
— v Smitty’s Super Valu Inc 757 P 2d 120 (1988) …. 11.110
McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd (2004) Aust Torts Reports ¶81-768 ….
18.14, 18.30, 18.32
McDowall v Reynolds [2004] QCA 245 …. 4.12
McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289 …. 3.52, 3.57
— v — (2007) 20 VR 250 …. 3.46, 3.54, 3.56, 3.57, 25.79
McFarlane v Tayside Health Board [2000] 2 AC 59; [1999] 4 All ER 961 …. 15.41
McGhee v National Coal Board [1972] 3 All ER 1008; [1973] 1 WLR 1 …. 12.44, 12.45, 12.46
McGreevy v Cannon Hill Services Pty Ltd [2016] QSC 29 …. 9.43
McGuire v Union Steamship Co of New Zealand Ltd (1920) 27 CLR 570 …. 1.46
McHale v Watson (1964) 111 CLR 384 …. 2.8, 2.20, 2.22, 2.23, 6.3, 9.80
— v — (1966) 115 CLR 199 …. 2.22, 11.9, 13.11
McKenna v Avior Pty Ltd [1981] WAR 255 …. 16.29
McKenzie v Powley [1916] SALR 1; [1916] 5 ALR 1 …. 25.26, 25.45, 25.75
McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 …. 5.93, 5.101
McKernan v Fraser (1931) 46 CLR 343 …. 24.67, 24.69, 24.70, 24.72
McLean v David Syme & Co Ltd (1970) 92 WN (NSW) 611 …. 23.129
— v Tedman (1984) 155 CLR 306; 56 ALR 359 …. 9.45, 11.81, 13.15
McLeod v Rub-a-dub Car Wash (Morvan) Pty Ltd (unreported, 29 February 1972, Victorian Supreme
Court) …. 25.7
McLoughlin v O’Brian [1983] 1 AC 410 …. 10.41, 10.52
McMahon v Catanzaro [1961] QWN 22 …. 25.49
McMeekin v Council of the City of Maryborough [1947] St R Qd 192 …. 25.101
McNamara v Duncan (1971) 26 ALR 584 …. 3.3, 3.13, 6.5, 6.7
McNeill v Johnstone [1958] 1 WLR 888 …. 17.19
McNeilly v Imbree (2007) 47 MVR 536; Aust Torts Reports ¶81-895 …. 11.23, 11.24
McPherson’s Ltd v Eaton (2005) 65 NSWLR 187 …. 9.123
— v Hickie (1995) Aust Torts Reports ¶81-348 …. 23.94
McQuaker v Goddard [1940] 1 All ER 471; [1940] 1 KB 687 …. 26.3
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] ALR 771 …. 15.56
McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2007) 97 SASR 160 …. 20.70
Meadows v Ferguson [1961] VR 594 …. 12.9
Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 …. 11.44
Mears v London & South Western Railway Co (1862) 11 CBNS 850; 142 ER 1029 …. 5.70
Mediana, The [1900] AC 113 …. 15.14
Medlin v State Government Insurance Commission (1995) 182 CLR 1; 127 ALR 180 …. 12.28, 12.76,
15.54, 15.68, 15.76, 15.101
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 …. 3.48, 3.49
Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54 …. 9.103
Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 …. 25.57
Melchior v Cattanach (2001) 217 ALR 640 …. 15.28
Meldrum v Australian Broadcasting Co Ltd [1932] VLR 425 …. 22.17
Mendez v Palazzi (1976) 68 DLR (3d) 582 …. 25.16
Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 …. 24.93, 24.99
Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432 …. 17.4, 17.8
Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 …. 11.69
Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; 284 ALR 1 …. 11.78
Merryweather v Nixan (1799) 8 Term Rep 186; 101 ER 1337 …. 21.15, 21.16
Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 …. 20.11, 20.23,
20.24
Metall & Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 …. 18.46
Metrolink Victoria Pty Ltd v Auspro Logistics Pty Ltd (2008) 49 MVR 350 …. 11.110
Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193 …. 25.56, 25.57
Metropolitan Police Commissioner v Reeves [2000] 1 AC 360; [1999] 3 All ER 897 …. 9.88
Metropolitan Properties v Jones [1939] 2 All ER 202 …. 25.42
Metropolitan Railway Co v Jackson (1877) 3 App Cas 193 …. 11.89
Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87; 157 ER 769 …. 22.86
Meyers v Casey (1913) 17 CLR 90 …. 15.2
Mickelbreg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 …. 22.17
Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460 …. 19.40, 19.47
Middleton v Aon Risk Services Australia Ltd [2008] WASCA 239 …. 19.6, 19.73
Midwood & Co Ltd v Manchester Corporation [1905] 2 KB 597 …. 25.27
Miles v Commercial Banking Co of Sydney (1904) 1 CLR 470 …. 22.60
Miletic v Capital Territory Health Commission (1995) 130 ALR 591; 69 ALJR 675 …. 11.86
Millar v Candy (1981) 38 ALR 299 …. 15.50
Miller v Imperial College Healthcare NHS Trust [2014] EWHC 3772 (QB) …. 15.126
— v Jackson [1977] QB 966 …. 4.14, 15.2, 24.33, 25.60, 25.64, 25.69, 25.93, 25.101
— v Jennings (1954) 92 CLR 190 …. 15.151, 15.152
— v Miller (2011) 242 CLR 446; 275 ALR 611 …. 13.75
— v Sotiropoulos (NSWCA, Mason P, Meagher and Powell JJA, 18 August 1997, unreported) …. 6.31
Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd (The Wagon Mound (No 2)) [1963] SR
(NSW) 948 …. 11.44
Millicent District Council v Altschwager (1983) 50 ALR 173 …. 11.99
Millington v Fox (1838) 3 My & Cr 338; 40 ER 956 …. 24.14
Mills v Baitis [1968] VR 583 …. 12.9
Ming Kuei Property Investments Pty Ltd v Hampton (1994) 126 ALR 313 …. 5.103
Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd
[1983] 2 NSWLR 268 …. 8.8, 10.10
Minister for Health v AS (2004) 33 Fam LR 223 …. 6.20
Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1 …. 4.7
Minogue v Rudd [2012] NSWSC 305 …. 11.109
Mirror Newspapers Ltd v Jools (1985) 65 ALR 174 …. 23.115, 23.130
— v World Hosts Pty Ltd (1979) 141 CLR 632; 23 ALR 167 …. 22.65, 22.73, 24.87
Misson v McOwan [1906] VLR 280; (1906) 12 ALR 478 …. 23.101
Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 …. 11.31
Mitchil (or Michael) v Alestree (1676) 1 Vent 295; 3 Keb 650; 2 Lev 172 …. 1.40
Mitsui OSK Lines Ltd v The Ship ‘Mineral Transporter’ [1983] 2 NSWLR 564 …. 15.49
M’Kew v Holland & Hannen & Cubitts (Scotland) Ltd (1970) SC (HL) 20 …. 12.71
Mobbs v Kain (2009) 54 MVR 179 …. 11.31
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 …. 9.3, 9.5, 9.19,
9.24, 9.25, 9.80
Moder v Commonwealth; Sochorova v Commonwealth (2012) 261 FLR 396 …. 18.60
Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25 …. 1.8
Mohr & Mohr v Cleaver & Cleaver [1986] WAR 67 …. 19.35
Moloughney v Wellington Racing Club [1935] NZLR 800 …. 13.66
Monie v Commonwealth [2007] NSWCA 230 …. 13.20
Monson v Tussauds Ltd [1894] 1 QB 671 …. 22.14
Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 …. 25.9
Moody v Cox & Hatt [1917] 2 Ch 71 …. 9.105
Moore v Lamb (1994) Aust Torts Reports ¶81-295 …. 16.38
— v Lambeth County Court Registrar (No 2) [1970] 1 QB 560 …. 5.76
Moorgate Mercantile Co Ltd v Finch & Read [1962] 1 QB 701 …. 5.40
— v Twitchings [1977] AC 890 …. 5.53, 5.54
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414; 56 ALR 193 …. 24.6, 24.26
Moran v McMahon (1985) 3 NSWLR 700 …. 15.151
Morgan v Fry [1968] 2 QB 710 …. 24.75
— v Khyatt [1964] 1 WLR 475 …. 25.11
— v Lingen (1863) 8 LT 800 …. 22.46
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 …. 23.98, 23.135
Morris v C W Martin & Sons Ltd [1966] 1 QB 716 …. 20.37
— v Marsden [1952] 1 All ER 925 …. 1.27, 2.17, 3.3, 3.16, 6.65
Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934 …. 18.16, 18.17
Morton v Knight [1990] 2 Qd R 419 …. 13.24
Moss v Christchurch Rural District Council [1925] 2 KB 750 …. 25.71
— v Eagleston [2014] NSWSC 6 …. 9.107
Motor Accidents Insurance Board v Lester [2016] TASSC 2 …. 26.35
— v Pulford (1993) Aust Torts Reports ¶81-235 …. 15.94
Motor Dealers Credit Corporation Ltd v Overland (Sydney) Ltd (1931) 31 SR (NSW) 516 …. 5.53
Moukataff v British Overseas Airways Corporation [1967] 1 Lloyds Rep 396 …. 5.61
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1971] ALR 253 …. 1.43, 9.35, 10.44, 12.17, 12.64
Mourton v Poulter [1930] 2 KB 183 …. 9.9
Mowlds v Fergusson (1940) 64 CLR 206 …. 23.43
Mules v Ferguson [2015] QCA 5 …. 13.83
Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; 221 ALR 764 …. 9.18, 11.48, 11.83
Mummery v Irvings Pty Ltd (1956) 96 CLR 99 …. 11.102, 11.104, 18.25
Munce v Vinidex [1974] 2 NSWLR 235 …. 15.39
Mundey v Askin [1982] 2 NSWLR 369 …. 22.51
Mundy v Government Insurance Office (NSW) (NSWSC, Spender JA, 5 June 1995, unreported) ….
15.35
Municipal Tramways Trust v Ashby [1951] SASR 61 …. 13.4
Munnings v Australian Government Solicitor (1994) 118 ALR 385; 68 ALJR 169 …. 2.26
Munro v Southern Dairies Ltd [1955] VLR 332 …. 25.41, 25.44, 25.46, 25.48, 25.51, 25.66, 26.39
— v Willmott [1949] 1 KB 295 …. 5.86, 5.87
Munster v Lamb (1883) 11 QBD 588 …. 23.24
Murphy v Brown (1985) 1 NSWLR 131 …. 15.45
— v Culhane [1977] 1 QB 94 …. 16.8
— v Houghton & Byrne (Qld) Pty Ltd [1964] QWN 6 …. 15.141
— v Overton Investments Pty Ltd (2004) 204 ALR 26 …. 19.111
— v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023 …. 15.34
Murray v Harringay Arena Ltd [1951] 2 KB 529 …. 13.66
— v McMurchy [1949] 2 DLR 442 …. 6.16, 6.42
— v Ministry of Defence [1988] 2 All ER 521; [1988] 1 WLR 692 …. 3.48, 3.49
Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251 …. 19.89
Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3 …. 1.43, 10.79,
19.15, 19.19, 19.20, 19.23, 19.24, 19.25, 19.27, 19.32, 19.35, 19.39, 19.44, 19.46, 19.51
— v — (1970) 122 CLR 628; [1971] AC 793 …. 19.15, 19.39
Myer Stores Ltd v Soo [1991] 2 VR 597 …. 3.51, 3.53, 3.59, 3.67, 3.82
MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 LR 659 …. 9.84
N
N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB) …. 20.31
Nada v Knight (1990) Aust Torts Reports ¶81-032 …. 9.87
Nader v Urban Transit Authority (1985) 2 NSWLR 501 …. 10.46, 15.30
Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 393 …. 9.18, 11.43, 11.81
Nair v Health Administration Corporation (1994) Aust Torts Reports ¶81-312 …. 9.34
Nalder v Commissioner for Railways [1983] Qd R 620 …. 18.18
Nance v British Columbia Electric Railway Co Ltd [1951] AC 601; [1951] 2 All ER 448 …. 13.2, 16.36
Napaluma v Baker (1982) 29 SASR 192 …. 15.125
Narich Pty Ltd v Commissioner of Payroll Tax [1983] 2 NSWLR 597; (1983) 50 ALR 417 …. 20.9
National Australia Bank Ltd v McFarlane (2005) Aust Torts Reports ¶81-819 …. 7.19
— v Nemur Varity Pty Ltd (2002) 4 VR 252 …. 5.94
National Coal Board v England [1954] AC 403 …. 11.90, 11.98
— v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861 …. 2.4, 5.25, 6.3
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 …. 15.134, 15.138
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 …. 7.6, 7.28, 9.44
Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 …. 11.71, 12.45, 13.90
Neal v CSR Ltd (1990) Aust Torts Reports ¶81-052 …. 15.65
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 …. 24.63
Negretto v Sayers [1963] SASR 313 …. 12.66
Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 …. 9.33
Neindorf v Junkovic (2005) 222 ALR 631 …. 9.12, 11.58
Nelipa v Robertson [2001] ACTSC 55 …. 24.79
Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201; 5 ALR 289 …. 11.66
Nettleship v Weston [1971] 2 QB 691 …. 11.25
New South Wales v Ball (2007) 69 NSWLR 463 …. 10.138
— v Eade [2006] NSWSC 84 …. 20.88
— v Fahy (2007) 232 CLR 486; 236 ALR 406 …. 8.15, 10.39, 10.76, 10.145, 11.35, 11.36, 11.44, 11.48,
11.84
— v Godfrey (2004) Aust Torts Reports ¶81-741; [2004] NSWCA 113 …. 9.83, 9.89, 12.65
— v Griffin [2004] NSWCA 17 …. 13.11
— v Ibbett (2005) 65 NSWLR 168 …. 3.79
— v — (2006) 229 CLR 638; 231 ALR 485 …. 1.36, 3.83, 4.62, 4.63
— v Knight [2002] NSWCA 392 …. 2.24
— v Koumdjiev (2005) 63 NSWLR 353 …. 4.32
— v Kuru (2007) Aust Torts Reports ¶91-893 …. 4.35
— v Landini [2010] NSWCA 157 …. 7.13, 7.18
— v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 …. 2.10, 9.75,
20.3, 20.5, 20.28, 20.33, 20.42, 20.43, 20.46, 20.48, 20.62, 20.67, 20.71, 20.81, 20.82
— v McMaster [2015] NSWCA 228 …. 6.32
— v Moss (2000) 54 NSWLR 536 …. 15.69, 15.73
— v Napier [2002] NSWCA 402 …. 9.85
— v Radford [2010] NSWCA 276 …. 3.84, 14.43
— v Riley (2003) 576 NSWLR 496 …. 6.62
Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 …. 25.17
Newington v Windeyer (1985) 3 NSWLR 555 …. 4.4, 4.5
Newmans Coach Lines Ltd v Robertshawe [1984] 1 NZLR 53 …. 15.49
News Ltd v Australian Rugby Football League Ltd (1996) 58 FCR 447; 135 ALR 33 …. 24.39, 24.41
— v — (1996) 139 ALR 193 …. 24.59
Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161 …. 16.29, 16.35
Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch 343 …. 2.19
Nichols v Marsland (1875) LR 10 Ex 255 …. 26.15
Nicholson v Nicholson (1994) Aust Torts Reports ¶81-310 …. 13.30
Nielsen v City of Kamloops 10 DLR (4th) 641 (1984) …. 10.10
Nightingale v Blacktown City Council [2015] NSWCA 423 …. 10.150
Nilon v Bezzina [1988] 2 Qd R 420 …. 12.52
Nixon v Philip Morris (Aust) Ltd (1999) 95 FCR 453; 165 ALR 515 …. 14.18, 19.114
— v Slater & Gordon (2000) 175 ALR 15 …. 19.100, 22.99
NOC Inc v Schaefer 484 A 2d 729 (1984) …. 7.24
Nocton v Lord Ashburton [1914] AC 932 …. 19.1, 19.72, 19.90
Nominal Defendant v Andrews (1969) 121 CLR 562 …. 5.33
— v Gardikiotis (1996) 186 CLR 49 …. 15.131
— v Morgan Cars Pty Ltd (1974) 131 CLR 22 …. 5.33
— v Puglisi (1984) 58 ALJR 474 …. 11.99
— v Taylor (1982) 154 CLR 106; 41 ALR 244 …. 16.24
Norris v Blake (No 2) (1997) 41 NSWLR 49 …. 15.71
— v Sibberas [1990] VR 161 …. 19.38
North v Wood [1914] 1 KB 629 …. 26.9
North Sydney Council v Roman (2007) 69 NSWLR 240 …. 10.150
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 …. 9.21, 9.22, 9.23, 20.8,
20.62, 20.73, 20.74, 20.76
Northern Territory v Mengel (1995) 185 CLR 307; 129 ALR 1 …. 1.6, 2.24, 2.27, 7.5, 18.52, 18.53, 18.54,
18.55, 18.56, 18.59, 18.60, 18.62, 18.63, 24.2
Norton v Hoare (No 1) (1913) 17 CLR 310 …. 6.37
Noye v Robbins [2010] WASCA 83 …. 7.17
NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Ltd (1947) 47 SR (NSW) 273 …. 4.5
Nunan v Southern Railway Co [1924] 1 KB 223 …. 16.7
Nutrientwater Pty Ltd v Baco Pty Ltd (2010) 265 ALR 140 …. 24.18
Nye v New South Wales (2004) Aust Torts Reports ¶81-725 …. 7.9
Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294 …. 4.40
O
Oakley v Lyster [1931] 1 KB 148 …. 5.40, 5.48, 5.53
Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022 …. 22.39, 22.50
OBG Ltd v Allan; Douglas v Hello! Ltd (No 3) [2008] 1 AC 1; [2007] 4 All ER 545 …. 7.31, 24.3, 24.5,
24.48
O’Brien v Dawson (1942) 66 CLR 18 …. 24.63
— v McKean (1968) 118 CLR 540 …. 15.68, 15.141, 15.148
— v Shire of Rosedale [1969] VR 112 …. 4.38
— v — [1969] VR 645 …. 6.49
Ocean Accident Co v Ilford Gas Co [1905] 2 KB 493 …. 4.7
Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; 66 ALR 29 …. 20.21
O’Connell v Jackson [1971] 3 All ER 129 …. 13.20
O’Connor v Sheriff of Queensland (1892) 4 QLJ 213 …. 6.58
— v SP Bray Ltd (1937) 56 CLR 464 …. 11.78, 18.7, 18.10, 18.11, 18.13, 18.16, 18.18
O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 …. 23.134
Oldham v Lawson (No 1) [1976] VR 654 …. 25.5, 25.7, 25.53
O’Leary v Lamb & Lensworth Finance Ltd (1973) 7 SASR 159 …. 19.26
Onus v Telstra Corporation Ltd [2011] NSWSC 33 …. 25.15, 25.41, 25.79
Orange v Chief Constable of West Yorkshire Police [2002] QB 347 …. 9.88
Orange Crush (Australia) Ltd v Gartrell (1928) 41 CLR 282 …. 24.9
Orica Investments Pty Ltd v McCartney [2007] NSWSC 645 …. 24.48
Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth (1983) 50 ALR 452 …. 20.21
Origliasso v Vitale [1952] St R Qd 211 …. 3.37, 3.38
Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) (2002) 120
FCR 191 …. 24.101
Oropesa, The [1943] P 32 …. 12.73, 15.42
Orr v Isles [1965] NSWR 677 …. 23.101
Osborne v Downer EDI Mining Pty Ltd [2010] QSC 470 …. 13.16
O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 …. 23.80, 23.81, 23.87
O’Shea v Permanent Trustee Co of New South Wales Ltd [1971] Qd R 1 …. 13.61, 13.63
— v Sullivan (1994) Aust Torts Reports ¶81-273 …. 15.121
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC
617 …. 12.63, 25.37, 25.53
Owners - Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117; [2002]
NSWCA 92 …. 25.11, 25.16
P
Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14 …. 24.26
Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 …. 9.43
Padbury v Holliday & Greenwood Ltd (1912) 28 TLR 494 …. 20.66
Paff v Speed (1961) 105 CLR 549 …. 15.56, 15.58, 15.69
Painter v Reed [1930] SASR 295 …. 25.50
Palace Backpackers Australia Pty Ltd v Christensen Industries Pty Ltd (2002) 23 Qld Lawyer Reps 79;
[2002] QDC 084 …. 5.91
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 …. 4.54, 4.59, 19.85, 24.87,
24.89, 24.93, 24.96, 24.97, 24.98, 24.99, 24.100
Pamplin v Express Newspapers Ltd (No 2) [1988] 1 All ER 282; [1988] 1 WLR 116 …. 15.18
Pantalone v Alaouie (1989) 18 NSWLR 119 …. 25.15, 25.18
Papadopoulos v MC Labour (Ruling No 2) [2009] VSC 176 …. 15.134
Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1 …. 11.20
Papathanasopoulos v Vacopoulos [2007] NSWSC 502 …. 5.61
Pargiter v Alexander (1995) 5 Tas R 158; Aust Torts Reports ¶81-349 …. 5.73, 5.76, 5.79, 5.82, 5.94,
5.95, 15.45, 15.46
Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42 …. 11.4, 11.55
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; 1A IPR 684 ….
24.36
Parker v British Airways Board [1982] QB 1004 …. 5.14, 5.15, 5.38
— v Commonwealth (1965) 112 CLR 295 …. 16.33, 16.36
— v Dzundza [1979] Qd R 55 …. 17.17
— v Guardian Fire Sprinkler Co (Qld) Pty Ltd [1982] Qd R 709 …. 15.143
— v Parker [1979] Qd R 50 …. 15.124
— v South Australian Housing Trust (1986) 41 SASR 493 …. 9.21
Parkinson v St James and Seacroft University Hospital NHS Trust [2001] 3 All ER 97 …. 12.13
Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340 …. 22.12, 22.38, 22.39
Parr v Ash (1876) SCR (NSW) 352 …. 5.36
Parramatta City Council v Lutz (1988) 12 NSWLR 293 …. 4.58
Parry v Cleaver [1970] AC 1 …. 15.26
— v Crooks (1981) 6 Fam LR 824 …. 3.85
— v Woolworths Ltd [2010] 1 Qd R 1 …. 18.32
Parsons v Randwick Municipal Council [2003] NSWCA 171 …. 11.33
Partridge v Chick (1951) 84 CLR 611 …. 16.7
Pask v Owen [1987] 2 Qd R 421 …. 18.27
Pasley v Freeman (1789) 3 Term Rep 51; 100 ER 450 …. 19.65, 19.69
Paul v Cooke (2013) 85 NSWLR 167 …. 13.96
— v Rendell (1981) 55 ALJR 371 …. 15.151
Paxhaven Holdings Ltd v Attorney-General [1974] 2 NZLR 185 …. 25.65
PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87 …. 4.20
Pearce v Hallett [1969] SASR 423 …. 6.30
— v Round Oak Steel Works Pty Ltd [1969] 1 WLR 595 …. 11.111
Peat v Lin [2005] 1 Qd R 40 …. 20.20
Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 …. 14.52
Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574 …. 25.12
Peek v Gurney (1873) LR 6 HL 377 …. 19.5, 19.78
Pegler v Wang (UK) Ltd (2000) BLR 218 …. 13.104
Peipman v Turner [1961] NSWR 252 …. 16.39
Penfold v Westcote (1806) 2 Bos & Pal (NR) 335; 127 ER 656 …. 22.51
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 …. 5.7, 5.8, 5.12, 5.19, 5.23, 5.27, 5.30, 5.33, 5.39,
5.46, 5.50, 5.51, 5.70, 5.97, 5.98
Penford v Betteridge (2011) 13 DCLR (NSW) 168; [2011] NSWDC 146 …. 26.23
Pennant Hills Restaurants Pty Ltd v Barrell Insurances Ltd (1981) 145 CLR 625; 34 ALR 162 …. 15.142
Pennington v Norris (1956) 96 CLR 10 …. 13.22, 13.23, 13.24, 13.46
Penton v Calwell (1945) 70 CLR 219; [1945] ALR 262 …. 23.45, 23.46
Pergrum v Fatharly (1996) 14 WAR 92 …. 9.103
Perisher Blue Pty Ltd v Nair-Smith (2015) 295 FLR 153; 320 ALR 235 …. 13.95
Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reports ¶80-295
…. 5.34
Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 …. 1.10, 1.57, 9.120, 10.5, 10.15, 10.19, 10.23,
10.24, 10.28, 10.75, 10.85, 10.86, 10.87, 10.91, 10.92, 10.93, 10.94, 10.112, 12.86, 19.18, 19.22
Perry v Australian Rail Track Corporation Ltd (2013) 64 MVR 121 …. 15.65
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 …. 23.80, 23.82
Petchell v Du Pradal [2015] QCA 132 …. 17.8
Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 …. 24.12, 24.14, 24.18
Peters v R (1998) 192 CLR 493 …. 24.60, 24.62
Petersen v Moloney (1951) 84 CLR 91 …. 20.52
Pham v Lawson (1997) 68 SASR 124 …. 10.57
Phelps v Hillingdon London Borough Council [2001] 2 AC 619; [2000] 4 All ER 504 …. 9.74
Phillips v Britannia Hygienic Laundry Co Ltd [1923] 1 KB 539 …. 18.26
— v MCG Group Pty Ltd [2012] QSC 149 …. 15.128
Phoenix Society Incorporated v Cavenagh (1996) 25 MVR 143 …. 20.36
Pickering v Ready Mixed Concrete (Queensland) Pty Ltd [1967] QWN 45 …. 17.17
— v Rudd (1815) 4 Camp 219; 171 ER 70 …. 4.44
Pinborough v Minister of Agriculture [1974] 7 SASR 493 …. 9.9
Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1 …. 14.22, 14.24
Piro v W Foster & Co Ltd (1943) 68 CLR 313 …. 18.40
Pitcher v Martin [1937] 3 All ER 918 …. 26.40
Place v Searle [1932] 2 KB 497 …. 17.13
Placer Exploration Ltd v Misiorowski [1970] ALR 435; (1969) 43 ALJR 376 …. 11.91
Plantet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 …. 15.152
Plato Films v Speidel [1961] AC 1090 …. 23.134
Platt v Nutt (1988) 12 NSWLR 231 …. 2.23, 2.24
Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78 ALJR 572 …. 12.23, 12.28, 12.29, 12.85
Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 …. 1.14, 3.75, 4.33, 4.35, 4.37, 6.28
Plomien Fuel Economiser Co Ltd v National School of Salesmanship Ltd (1943) 60 RPC 209 …. 24.19
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492 …. 13.22, 13.24, 13.46
Poland v John Parr & Sons [1927] 1 KB 236 …. 20.38
Polemis and Furness, Withy & Co Ltd, Re [1921] 3 KB 560 …. 12.61
Police v Greaves [1964] NZLR 295 …. 3.24, 3.30
Poole v State Transport Authority (Rail Division) (1982) 31 SASR 74 …. 13.19
Port Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 …. 4.55, 4.56, 4.60, 4.69
Potts v Frost (2011) 59 MVR 267 …. 11.110
— v Smith (1868) LR 6 Eq 311 …. 25.21
Powell v Gelston [1916] 2 KB 615 …. 22.76
Powney v Kerang and District Health (2014) 43 VR 506 …. 12.40
PQ v Australian Red Cross Society [1992] 1 VR 19 …. 11.61
Pratt v British Medical Association [1919] 1 KB 244 …. 24.58
— v Connolly (1994) Aust Torts Reports ¶81-283 …. 20.59
— v Young (1952) 69 WN (NSW) 214 …. 25.52
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 …. 15.152
Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 …. 10.126,
10.142, 10.145
Premier Group Pty Ltd v Followmont Transport Pty Ltd [2000] 2 Qd R 338 …. 5.91
Prendergast v Roberts [2012] QSC 144 …. 23.117
Presser v Caldwell Estates Pty Ltd [1971] 2 NSWLR 471 …. 19.26
Prestia v Aknar (1996) 40 NSWLR 165 …. 13.84
Preston v Star City Pty Ltd [1999] NSWSC 1273 …. 18.17
Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215; [2008] NTCA 2 …. 16.21, 16.35, 16.44
Price v New South Wales [2011] NSWCCA 341 …. 9.83
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 …. 25.66,
25.69
Priestley v Fowler (1837) 3 M & W 1; 150 ER 1030 …. 9.28
Prior v Kemp [2001] WASCA 22 …. 6.36
Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Reports ¶81-397 …. 5.76, 5.82, 5.95
Progress & Properties Ltd v Craft (1976) 135 CLR 651; 12 ALR 59 …. 18.23, 18.34, 18.39
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 18.7
Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102 …. 10.113,
10.118
Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 …. 25.10
Proudman v Allen [1954] SASR 336 …. 1.8, 6.39, 6.42
Public Transport Commission (NSW) v Perry (1977) 137 CLR 107; 14 ALR 273 …. 2.17, 4.40, 6.4
Public Trustee v Zoanetti (1945) 70 CLR 266 …. 16.36, 16.43
Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27 …. 14.23, 19.37
Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 …. 22.75
Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 …. 18.4
Purdy v Woznesensky [1937] 2 WWR 116 …. 7.2
Pym v Great Northern Railway Co (1862) 2 B & S 759; 121 ER 1254 …. 16.26
Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 …. 9.24, 10.15, 10.123, 10.126, 10.127,
10.128, 10.129, 10.137, 10.141
Q
Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 …. 24.4, 24.44, 24.46,
24.50, 24.54
QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 …. 18.50
Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 …. 9.33
Queensland v Kelly [2015] 1 Qd R 577 …. 13.54, 13.94
— v Nolan [2002] 1 Qd R 454 …. 6.44
Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93 …. 10.105
Quigley v Wallace [2015] WASC 479 …. 22.54
Quinn v Hill [1957] VR 439 …. 1.4, 9.87
— v Leathem [1901] AC 495 …. 24.39, 24.42, 24.47, 24.56, 24.60
Qumsieh v Guardianship and Administration Board [1998] VSCA 45 …. 6.25
R
R v A-G (Cth) v Associated Northern Collieries (1911) 14 CLR 387 …. 24.62
— v Awang [2004] 2 Qd R 672 …. 3.49
— v Bailiff [2002] ACTSC 79 …. 3.32
— v Brockhill Prison; Ex parte Evans (No 2) [2000] 4 All ER 15 …. 6.64
— v Brown (1841) C & M 314; 174 ER 522 …. 3.69
— v Burdett (1882) 106 ER 873 …. 22.1
— v Creevey (1813) 105 ER 102 …. 23.20
— v Gabriel (2004) 182 FLR 102; [2004] ACTSC 30 …. 3.21, 3.22, 3.25
— v Garrett (1988) 50 SASR 392 …. 3.57
— v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 …. 3.71
— v Hamilton (1891) 12 LR (NSW) 111 …. 3.26
— v Ireland [1998] AC 147 …. 3.23
— v Kelly [1998] 3 All ER 741 …. 5.3
— v Kinloch (1996) 187 LSJS 124 …. 6.53
— v Lord Abingdon (1794) 170 ER 337 …. 23.20
— v Macquarie (1875) 13 SCR (NSW) 264 …. 3.54
— v Macnamara (1893) 14 LR (NSW) 515 …. 22.83
— v Manchester City Magistrates’ Court; Ex parte Davies [1989] QB 631; [1989] 1 All ER 910 …. 6.55
— v Moore (1832) 3 B & Ad 184; 110 ER 68 …. 25.82
— v Papadimitropoulos (1957) 98 CLR 249 …. 6.10
— v Phillips (1971) 45 ALJR 467 …. 3.24
— v Portelli (2004) 148 A Crim R 282 …. 6.33
— v Rimmington [2006] 1 AC 459 …. 25.77
— v Saskatchewan Wheat Pool [1983] 1 SCR 205 …. 18.5
— v Shamrock [1994] QB 279 …. 25.86
— v St George (1840) 9 Car & P 483 …. 3.26
— v Terry [1955] VLR 114 …. 6.53, 6.54
— v Williams [1923] 1 KB 340 …. 6.10
— v Young (1999) 46 NSWLR 681 …. 16.45
R & C Products Pty Ltd t/as Samuel Taylor v S C Johnson & Sons Pty Ltd (1993) 113 ALR 487 …. 24.24
R H Willis & Son v British Car Auctions Ltd [1978] 2 All ER 392 …. 5.53
R Lowe Lippmann Figdor & Franck (a firm) v AGC (Advances) Ltd [1992] 2 VR 671 …. 19.43
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254 ALR 606 …. 22.31, 22.37, 22.41,
22.45, 22.58, 24.101
— v Parker (1992) 29 NSWLR 448 …. 23.80
Radstock Co-operative & Industrial Society Ltd v Norton-Radstock Urban District Council [1968] Ch
605 …. 25.54, 25.99
Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419 …. 9.32
Ragg v Palmer [2016] NSWDC 14 …. 13.20
Railtrack plc v Wandsworth London Borough Council [2001] EWCA Civ 1236 …. 25.85
Railway Commissioner v Corben [1939] SR (NSW) 55 …. 11.106
Ralph v Strutton [1969] Qd R 348 …. 9.89
Ramsay v Larsen (1964) 111 CLR 16; [1964] ALR 1121 …. 6.53, 6.54, 9.70, 9.75, 20.67
Ramsey v Vogler [2000] NSWCA 260 …. 20.50, 20.54
Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; 167 ALR 224 …. 22.27, 22.39, 22.46
Rands v McNeil [1955] 1 QB 253 …. 26.7
Ranieri v Ranieri [1973] 7 SASR 418 …. 13.65
Rapier v London Tramways Co [1893] 2 Ch 588 …. 25.36
Ratcliffe v Evans [1892] 2 QB 524 …. 22.14, 24.89, 24.91, 24.96
Rawlinson v Rice [1998] 1 NZLR 454 …. 18.60
Rawlinson & Brown Pty Ltd v Witham (1995) Aust Torts Reports ¶81-341; NSW ConvR ¶55-740 ….
19.26, 19.38
Read v Croydon Corporation [1938] 4 All ER 631 …. 18.26
— v Great Eastern Railway Co (1868) LR 3 QB 555 …. 16.8
— v Lyons & Co Ltd [1947] AC 156 …. 9.122
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417 …. 22.27, 22.30, 22.33, 22.52,
22.53, 23.126
Reckitt & Colman Products Ltd v Borden Inc [1990] 1 All ER 873; [1990] 1 WLR 491 …. 24.7, 24.8,
24.24
Redding v Lee (1983) 151 CLR 117; 47 ALR 241 …. 15.25, 15.138
Redgrave v Hurd (1881) 20 Ch D 1 …. 19.2
Reece v Reece (1994) 19 MVR 103 …. 15.116
Rees v Sinclair [1974] 1 NZLR 180 …. 9.111
Reeve v Brisbane City Council [1995] 2 Qd R 661 …. 10.57
— v Palmer (1858) 28 LJ CP 168; 141 ER 33 …. 5.57
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1 …. 15.100, 22.22
Reid v Smith (1905) 3 CLR 656; 12 ALR 126 …. 5.4
Reinhold v New South Wales Lotteries Corporation (No 2) (2008) 82 NSWLR 762 …. 21.42
Rejfek v McElroy (1965) 112 CLR 517 …. 3.38
Renner v Orchard [1967] QWN 3 …. 15.61
Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 …. 23.89
Rentokil Pty Ltd v Channon (1989) 19 NSWLR 417 …. 19.32
Reynolds v Aluma-Lite Products Pty Ltd (2010) Aust Torts Reports ¶82-072 …. 5.94
— v Clarke (1725) 1 Stra 634; 93 ER 747 …. 2.13
Rhodes v OPO [2015] UKSC 32 …. 7.5
Rich v Queensland; Samin v Queensland (2001) Aust Torts Reports ¶81-626 …. 20.82
Richard Ellis (WA) Pty Ltd v Mullins Investments Pty Ltd (1995) Aust Torts Reports ¶81-319 …. 19.52
Richards v Butcher (1890) 7 RPC 288 …. 24.91
— v Forsyth [2007] VSCA 227 …. 8.24
— v Victoria [1969] VR 136 …. 9.70
Richardson v Norris Smith Real Estate Ltd [1971] 1 NZLR 152 …. 19.26
Richmond City Council v Scantelbury [1991] 2 VR 38 …. 25.11
Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 …. 15.117
Ridis v Strata Plan 10308 [2005] NSWCA 246 …. 11.78
Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; [1985] 1 WLR 1242 …. 6.42, 6.43
Rigg v Alietti [1982] WAR 203 …. 26.19
Riley v Organ [1921] St R Qd 28 …. 24.60
Rimmer v Liverpool City Council [1985] QB 1 …. 9.21
Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports ¶81-231 …. 6.9
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 …. 3.9, 3.11, 3.27, 3.31
Roach v Yates [1937] 3 All ER 442; [1938] 1 KB 256 …. 15.89
Roads and Traffic Authority v Royal (2008) 245 ALR 653; 82 ALJR 870 …. 1.61, 12.28, 12.32
Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 …. 9.2,
9.4, 9.6, 9.12, 9.18, 9.19, 10.39, 10.135, 11.1, 11.2, 11.48, 11.52, 11.54, 11.59, 11.62
— v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 …. 10.134, 10.138
Roads and Traffic Authority (NSW) v Rolfe [2010] NSWSC 714 …. 10.150
Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177 …. 9.109
Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 …. 23.33, 23.39, 23.51, 23.53, 23.54, 23.58
— v Roberts (1864) 5 B & S 384; 122 ER 874 …. 12.10
— v Ramsbottom [1980] 1 All ER 7 …. 6.66, 11.12
Robertson v B H Maclachlan Pty Ltd (1985) 58 ALR 668; 59 ALJR 409 …. 11.80
— v Robin [1967] SASR 151 …. 16.27
— v Swincer (1989) 52 SASR 356 …. 9.77
Robinson v Balmain New Ferry Co Ltd [1910] AC 295 …. 3.63, 6.52
— v Kilvert (1889) 41 Ch D 88 …. 25.51, 25.98
— v Post Office [1974] 2 All ER 737; [1974] 1 WLR 1176 …. 12.66
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 …. 11.95
Roblin v The Public Trustee for the Australian Capital Territory [2015] ACTSC 100 …. 5.3
Robson v Hallett [1967] 2 QB 939 …. 4.28
— v Leischke (2008) 72 NSWLR 98 …. 25.16, 25.72
Roche v Kigetzis (2015) 72 MVR 67 …. 11.82
Roddan v Corrections Corporation of Australia Pty Ltd [2001] WASC 196 …. 3.47
Rodrigues v Ufton (1894) 20 VLR 539 …. 4.6
Roe v Minister of Health [1954] 2 QB 66; [1954] 2 All ER 131 …. 8.9, 9.95, 9.101, 11.17, 11.56, 11.110,
20.18, 20.68
Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 …. 23.4, 23.6
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184 …. 23.41, 23.59, 23.128, 23.138,
23.139
— v Rawlings [1969] Qd R 262 …. 1.25
— v Whitaker (1992) 175 CLR 479; 109 ALR 625 …. 6.22, 9.92, 9.95, 9.97, 11.15, 11.71, 11.73, 11.75,
11.77, 13.81, 13.90, 13.92, 23.139
Roggenkamp v Bennett (1950) 80 CLR 292 …. 13.48, 13.50, 13.61, 13.64
Rokich v Gianoli (WASC, Pidgeon, Murray and Parker JJ, 4 March 1997, unreported) …. 26.17
Rolfe v Investec Bank (Aust) Ltd [2014] VSCA 38 …. 5.61
Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340 …. 24.11
Roman Catholic Church v Koffman (1996) Aust Torts Reports ¶81-399 …. 9.72
Romano v Spagnol (NSWCA, Kirby P, Meagher and Cole JJA, 17 October 1994, unreported) …. 26.6
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263 ….
9.7, 9.11, 9.12, 9.18, 11.43, 11.51, 11.60, 11.64
Ronald v Harper (1910) 11 CLR 63 …. 11.94
Rondel v Worsley [1969] 1 AC 191 …. 9.111
Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367 …. 24.75, 24.78, 24.81, 24.84
Rootes v Shelton (1967) 116 CLR 383 …. 13.48, 13.60, 13.66, 13.95
Rooth v Wilson (1817) 1 B & Ald 59; 106 ER 22 …. 26.27
Rose v Plenty [1976] 1 WLR 141 …. 20.35, 20.36
Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238 …. 5.53
Rosecrance v Rosecrance (1995) 105 NTR 1 …. 15.66, 15.94
Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577; [2001] HCA 18 …. 9.96, 11.42, 11.71, 11.77,
12.45, 12.88, 12.89
Ross v Caunters [1980] Ch 297; [1979] 3 All ER 580 …. 9.103, 10.99
Roswell v Prior (1701) 12 Mod 635; 88 ER 1537 …. 25.14
Rosza v Samuels [1969] SASR 205 …. 3.31
Rothwell v Chemical & Insulating Co Ltd [2006] 4 All ER 1161 …. 1.15
Rowan v Cornwall (No 5) (2002) 82 SASR 152 …. 22.74, 23.55, 23.56
Royal v Smurthwaite (2007) 47 MVR 401 …. 1.62
Royal Automobile Association of South Australia (Inc) v Hancock [1939] SASR 60 …. 24.11
Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95 …. 12.9, 24.90
Royal Commission on Thomas Case, Re [1982] 1 NZLR 252 …. 7.15
RT & YE Falls Investments Pty Ltd v New South Wales [2007] NSWCA 18 …. 19.52
Ruddock v Taylor (2003) 58 NSWLR 269 …. 3.46, 3.74
— v — (2005) 222 CLR 612; 221 ALR 32 …. 3.61, 3.64, 3.74
Rufo v Hosking (2004) 61 NSWLR 678 …. 12.18, 12.19
Ruhan v Water Conservation and Irrigation Commission (1920) 20 SR (NSW) 439 …. 25.7
Rural Export and Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 …. 2.13, 5.18
Russell v Edwards (2006) 65 NSWLR 373 …. 13.35, 13.36
— v London & South Western Railway (1908) 24 TLR 548 …. 11.102
— v Wilson (1923) 33 CLR 538 …. 5.59
Rutherford v Attorney-General [1976] 1 NZLR 403 …. 9.123
Ruthning v Ferguson [1930] St R Qd 325 …. 26.39
Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486 …. 20.48
— v Electricity Trust of South Australia (No 1) (1987) 47 SASR 220 …. 11.66
Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330 …. 1.7, 9.121, 25.38
S
S v Attorney-General [2003] 3 NZLR 450 …. 20.17
— v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR
217; 216 ALR 252 …. 20.79
S J Sanders Pty Ltd v Schmidt [2012] QCA 358 …. 11.30
S Pearson & Son Ltd v Dublin Corporation [1907] AC 351 …. 19.80
Sachs v Miklos [1948] 2 KB 23 …. 5.86, 5.87
Sadcas Pty Ltd v Business and Professional Finance Pty Ltd [2011] NSWCA 267 …. 5.49, 5.83
Sadler v Madigan [1998] VSCA 53 …. 3.51
Sahade v Bischoff [2015] NSWCA 418 …. 7.13
Sai Teys McMahon Real Estate Pty Ltd v Queen Street Apartments Pty Ltd [2007] QSC 264 …. 24.43
Samios v Repatriation Commission [1960] WAR 219 …. 9.101, 20.18, 20.68
Samuelson v Producers Distributing Co Ltd (1931) 48 RPC 580; [1931] 1 All ER 74 …. 24.33
San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979
(1986) 162 CLR 340; 68 ALR 161 …. 10.13, 19.18, 19.30, 19.33, 19.34, 19.51
Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 …. 18.51, 18.54, 18.57, 18.60, 24.3, 24.4, 24.5
Sands v South Australia [2013] SASC 44 …. 7.26
Sarch v Blackburn (1930) 47 TLR 25 …. 26.14
SBEG v Commonwealth (2012) 208 FCR 235; 295 ALR 81 …. 9.85
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 …. 11.102, 11.110
Schemmell v Pomeroy (1989) 50 SASR 450 …. 5.23, 5.40, 5.50
Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 …. 18.18
Schimke v Clements (2011) 58 MVR 390 …. 13.24, 16.23, 16.26, 16.44
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 …. 24.90, 24.93, 24.94, 24.95
Schloendorf v Society of New York Hospital 105 NE 92 (1914) …. 6.14
Schneidas v Corrective Services Commission (NSWSC, Lee J, 8 April 1983, unreported) …. 6.50
Scholefield v Bates [1958] SASR 317 …. 16.34
Schuller v S J Webb Nominees Pty Ltd (2015) 124 SASR 152 …. 9.16, 13.51, 13.56, 13.64, 18.28
Schultz v McCormack [2015] NSWCA 330 …. 9.7, 11.63, 13.94
Schweizer v Central Hospital 53 DLR (3d) 494 (1974) …. 6.16
Scott v CAL No 14 Pty Ltd (t/as Tandara Motor Inn) (No 2) (2007) 17 Tas R 331; 256 ALR 521 …. 9.16
— v Davis (2000) 204 CLR 333; 175 ALR 217 …. 20.6, 20.17, 20.58
— v Heathwood [1953] St R Qd 91 …. 15.141
— v Pedler (2003) 74 ALD 424; [2003] FCA 650 …. 24.4
— v — (2004) 80 ALD 283; [2004] FCAFC 67 …. 24.4
— v Shepherd (1773) 2 Wm B1 892; 96 ER 525 …. 2.2, 2.13, 2.14, 3.5
Seafolly Pty Ltd (ACN 001 537 748) v Madden (2012) 297 ALR 337 …. 23.81, 24.96
Searle v Wallbank [1947] AC 341 …. 26.34, 26.35, 26.36, 26.37, 26.38
Secretary, Department of Health and Community Services v J W B & S M B (Marion’s Case) (1992) 175
CLR 218 …. 3.11, 6.13, 6.14, 6.19, 6.20, 6.22
Sedleigh-Denfield v O’Callaghan [1940] AC 880 …. 25.1, 25.2, 25.3, 25.8, 25.10, 25.37, 25.38, 25.46,
25.62, 25.68, 25.82
Seiwa Pty Ltd v Owners Strata Plan 35042 (2006) 12 BPR 23,673 …. 18.15, 18.30
Semenov v Pirvu [2011] VSC 605 …. 5.75
Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 …. 22.61
Seton Laing & Co v Lafone (1887) 19 QBD 68 …. 5.54
Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227 …. 16.29
— v Seymour (1996) 40 NSWLR 358 …. 14.51
Shannon v New South Wales [2015] NSWDC 69 …. 4.9
Shapiro v La Morta (1923) 40 TLR 201 …. 24.94
Sharman v Evans (1977) 138 CLR 563; 13 ALR 57 …. 15.61, 15.63, 15.64, 15.66, 15.80, 15.84, 15.117,
15.151, 15.152
Sharp v Paramatta City Council (2015) 209 LGERA 220; [2015] NSWCA 260 …. 9.12, 13.70
Shaw v Thomas [2010] NSWCA 169 …. 11.44, 11.86
Shearman v Folland [1950] 2 KB 43 …. 15.27
Shedlezki v Bronte Bakery Pty Ltd (1970) 72 SR (NSW) 378 …. 18.36, 18.38
Sheen v Fields Pty Ltd (1984) 51 ALR 345; 58 ALJR 93 …. 9.52
Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 …. 4.68, 25.70, 25.71
Shelley v Szelley [1971] SASR 430 …. 13.14
Shellharbour City Council v Rigby (2006) 150 LGERA 11; Aust Torts Reports ¶81-864 …. 11.31
Sherman v Condon [2014] QDC 189 …. 4.68
— v Nymboida Collieries Pty Ltd (1963) 109 CLR 580 …. 18.34
Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 …. 23.105, 23.107, 23.109
Shiels v Cruikshank [1953] 1 All ER 874; [1953] 1 WLR 533 …. 16.22
Shirt v Wyong Shire Council [1978] 1 NSWLR 631 …. 9.5
Short v City Bank of Sydney (1912) 15 CLR 148 …. 24.43
Shrimp v Landmark Operations Ltd (2007) 163 FCR 510 …. 21.37
Shuttleworth v Vancouver Hospital [1927] 2 DLR 573 …. 25.17
Sibley v Kais (1967) 118 CLR 424; [1968] ALR 158 …. 11.78, 11.80, 13.24
— v Milutinovic (1990) Aust Torts Reports ¶81-013 …. 3.13
Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1970] 2 NSWR 47
…. 24.5
— v — [1971] 1 NSWLR 760 …. 24.79
Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871; [1985] 1 All ER 643 …. 9.95
Sienkiewicz v Greif (UK) Ltd; Willmore v Knowsley Metropolitan Borough Council [2011] 2 WLR 523
…. 12.47
Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; [1958] 1 WLR 743 …. 23.83, 23.87
Silservice Pty Ltd v Supreme Bread Pty Ltd (1949) 50 SR (NSW) 127 …. 25.89
Sim v Daily Telegraph Ltd [1968] 2 QB 157 …. 22.47
— v Stretch [1936] 2 All ER 1237 …. 22.38, 22.41
Simmons v Story [2001] VSCA 187 …. 9.103
Simms v Leighy Rugby Football Club [1969] 2 All ER 923 …. 13.66
Simon v Condran [2013] NSWDC 32 …. 6.43, 26.23
Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 …. 15.42
Simpson v Bannerman (1932) 47 CLR 378 …. 26.14, 26.19
— v Grundy [2011] QSC 299 …. 9.61
Simpson (by her tutor Simpson) v Diamond [2001] NSWSC 925 …. 15.73
Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 …. 23.67
— v Preston [1970] WAR 186 …. 19.80
— v William Arnott Pty Ltd; Kell & Rigby Pty Ltd (Third Party) (No 2) (1963) 64 SR (NSW) 88 …. 9.38
Singer Manufacturing Co v Loog (1882) 8 App Cas 15 …. 24.19
Singleton v John Fairfax & Sons Ltd [1983] 2 NSWLR 722 …. 23.121
Six Carpenters’ Case, Re (1610) 8 Co Rep 146a; 77 ER 695 …. 4.38
SJ Weir Ltd v Bijok (2011) 112 SASR 127 …. 11.110, 25.19
Skelton v Collins (1966) 115 CLR 94 …. 15.26, 15.80, 15.84, 15.119, 15.122, 15.127
Sklavos v Australasian College of Dermatologists [2016] FCA 179 …. 10.66
Slater v Swann (1730) 2 Stra 872; 93 ER 906 …. 5.27
Slaveski v Victoria [2010] VSC 441 …. 3.7, 3.22, 3.65, 5.21, 5.73, 5.77
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585 …. 18.3, 18.4, 18.12, 18.13, 18.14,
18.30
Smith v Austin Lifts Ltd [1959] 1 WLR 100 …. 9.38, 9.46
— v Brambles Australia Ltd [2011] NSWSC 963 …. 9.41
— v Capella State High School Parents and Citizens Association [2004] QSC 34 …. 26.4, 26.10, 26.33
— v Charles Baker & Sons [1891] AC 325 …. 9.32, 13.49, 13.51
— v Eric S Bush [1990] 1 AC 831 …. 1.56, 9.92
— v Jenkins (1970) 119 CLR 397 …. 11.6, 13.72
— v Leech Brain & Co Ltd [1962] 2 QB 405 …. 12.66
— v Leurs (1945) 70 CLR 256; [1945] ALR 392 …. 9.67, 9.80, 9.81, 10.128
— v McGuiggan (1863) 2 SCR (NSW) 268 …. 22.86
— v O’Byrne (1894) 5 QLJ 126 …. 6.54
— v Retirement Benefits Fund Investment Trust (1994) Aust Torts Reports ¶81-286 …. 11.100
— v Spooner (1810) Taunt 246; 128 ER 98 …. 24.88
— v Stages [1989] AC 928; [1989] 2 WLR 529 …. 20.32
— v State Bank of New South Wales Ltd (2001) 188 ALR 729 …. 19.32, 19.51
— v Stone (1647) Style 65; 82 ER 533 …. 2.17, 4.40, 4.42
— v Streatfield [1913] 3 KB 764 …. 23.56
— v Williams (2006) 47 MVR 169 …. 26.38
— v Zhong (2015) 73 MVR 64 …. 15.70
Smythe v Reardon [1949] St R Qd 74 …. 6.10, 19.84
Snape v Reid (1984) Aust Torts Reports ¶80-620 …. 15.94
Sneddon v Speaker of the Legislative Assembly [2011] NSWSC 508 …. 10.76
Soanes v Plessing [1985] 2 Qd R 55 …. 6.50
Soblusky v Egan (1960) 103 CLR 215 …. 20.58
Solloway v McLaughlin [1938] AC 247 …. 5.83, 5.87
Solomons v R Gertzenstein Ltd [1954] 2 QB 243 …. 18.24
Somerville v Walsh (NSW Court of Appeal CA 40321 of 1997, 26 February 1998) …. 10.105
Sony Music Australia Ltd v Tansing (t/as Apple House Music) (1993) 27 IPR 649 …. 24.25
South Australia v Johnson (1982) 42 ALR 161 …. 19.58, 19.61, 19.86
South Australia v Lampard-Trevorrow (2010) 106 SASR 331 …. 18.56
South Australian Co v Corporation of the City of Port Adelaide [1914] SALR 16 …. 25.65
South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 …. 22.87, 23.84
South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 …. 9.46
South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 …. 9.15
South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 …. 24.47, 24.52
Southern Portland Cement Ltd v Cooper (1973) 129 CLR 295; [1974] AC 623; (1973) 2 ALR 113 …. 9.9
Southern Properties (WA) Pty Ltd v Executive Director of Department of Conservation and Land
Management (2012) 42 WAR 287 …. 11.68, 25.3, 25.58
Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 …. 1.14, 2.2, 4.15
Southwark London Borough Council v Tanner [1999] 4 All ER 449 …. 25.40
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 …. 18.8, 18.12, 18.17, 18.37
Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 …. 10.78
Spautz v Butterworth (1996) 41 NSWLR 1 …. 3.68, 6.55
Speed v Thomas Swift & Co Ltd [1943] KB 557 …. 9.43
Spira v Commonwealth Bank (2003) 57 NSWLR 544 …. 24.79
Sprod v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports ¶81-921 …. 20.45, 20.48
SSYBA Pty Ltd v Lane [2013] WASC 445 …. 4.51, 4.57
St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666 …. 21.37
St George’s Healthcare NHS Trust v S [1998] 3 All ER 673 …. 6.25
St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; 11 ER 1483 …. 25.30, 25.32, 25.36, 25.40, 25.66
St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185 …. 1.24, 1.25, 9.77, 9.79
Standard Chartered Bank v Pakistan National Shipping Corporation (Nos 2 and 4) [2002] 3 WLR 1547
…. 19.90
Stanley v Layne Christensen Co [2006] WASCA 56 …. 24.69
— v Powell [1891] 1 QB 86 …. 2.4, 2.8
State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 …. 22.60,
22.76
State Government Insurance Commission (SA) v Trigwell (1979) 142 CLR 617; 26 ALR 67 …. 26.34,
26.35, 26.36, 26.38
State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539; 49 ALR 247 …. 16.47
State Rail Authority of New South Wales v Chu (2008) Aust Torts Reports ¶81-940 …. 12.77
— v Wiegold (1991) 25 NSWLR 500 …. 12.9, 12.82
Stephens v Myers (1830) 4 Car & P 349; 172 ER 735 …. 3.25, 3.76
— v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80 …. 23.56, 23.58, 23.72, 23.73
Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 …. 12.66
Stern v Piper [1997] QB 123; [1996] 3 All ER 385 …. 23.61
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513 …. 9.47, 10.13, 20.8, 20.13,
20.14, 20.15, 20.17
Stevenson v Basham [1922] NZLR 225 …. 7.3
Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101 …. 20.12
Stewart v Ackland (2015) 10 ACTLR 207; 293 FLR 341 …. 13.70
— v Layton (1992) 111 ALR 687 …. 9.105
Stillman v Rusbourne [2015] NSWCA 410 …. 9.115
Stingel v Clark (2006) 226 CLR 442; 228 ALR 229 …. 14.43
Stoakes v Brydges [1958] QWN 5 …. 25.45, 25.52, 25.98
Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 …. 23.20
Stocker v McElhinney (No 2) [1961] NSWR 1043; (1961) 79 WN (NSW) 541 …. 23.106
Stocks v Retirement Benefits Fund Board [2007] TASSC 8 …. 19.61
Stockwell v Victoria [2001] VSC 497 …. 25.7, 25.35, 26.39
Storey v Ashton (1869) LR 4 QB 476 …. 20.30
Stormer v Ingram (1978) 21 SASR 93 …. 25.42, 26.4
Storozuk v Commissioner for Railways [1963] SR (NSW) 581 …. 18.14
Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651 …. 21.17
Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 …. 5.90, 5.94
Strasberg v Westfield Ltd [20012] NSWSC 689 …. 22.72
Streets Ice Cream Pty Ltd v Australian Asbestos Installations Pty Ltd [1967] 1 NSWR 50 …. 9.126
Stringer v Flehr & Walker (2003) Aust Torts Reports ¶81-718 …. 9.103
Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420 …. 8.19, 9.12, 12.22, 12.24,
12.33, 12.34, 12.35, 12.40, 12.42
Stuart v Bell [1891] 2 QB 341 …. 23.40
— v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432 …. 9.6, 10.126, 10.129, 10.141, 10.144
Stubbings v Webb [1993] AC 498; [1993] 1 All ER 322 …. 14.43
Sturch v Willmott [1997] 2 Qd R 310 …. 15.104
Sturges v Bridgman (1879) 11 Ch D 852 …. 25.17, 25.26, 25.43, 25.60, 25.64, 25.70, 25.101
Sturton v Richardson (1844) 13 M & W 17; 153 ER 7 …. 15.6
Suley v City Joiners Pty Ltd (1970) 65 QJPR 141 …. 15.117
Sullivan v Gordon (1999) 47 NSWLR 319 …. 15.104
— v Moody (2001) 207 CLR 562; 183 ALR 404 …. 1.10, 9.1, 10.2, 10.15, 10.21, 10.24, 10.26, 10.27, 10.28,
10.29, 10.30, 10.43, 10.60, 10.99, 10.115, 10.131, 10.143, 10.145, 12.86, 20.80
Suncorp Insurance & Finance v Blakeney (1993) Aust Torts Reports ¶81-253 …. 13.61
Sungravure Pty Ltd v Meani (1964) 110 CLR 24 …. 13.24
— v Middle East Airlines Airliban SAL (1975) 134 CLR 1 …. 22.45, 22.46, 22.64, 22.73
Suosaari v Steinhardt [1989] 2 Qd R 477 …. 9.125
Sutherland Shire Council v Becker (2006) 150 LGERA 184; [2006] NSWCA 344 …. 10.21, 25.18, 25.39
— v Heyman (1985) 157 CLR 424; 60 ALR 1 …. 9.19, 10.16, 10.107, 10.122, 10.127, 10.128, 10.136,
14.24, 19.30
— v Major [2015] NSWCA 243 …. 15.152
Suvaal v Cessnock City Council (2003) 200 ALR 1 …. 8.25
Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 …. 8.24, 11.88, 11.93
Swan v South Australia (1994) 62 SASR 532 …. 9.90
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46 …. 20.8, 20.17, 20.56
Swenson v Shire of Drayton [1932] St R Qd 98 …. 6.47
Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 48 WAR 376; 318 ALR 666; [2015]
WASCA 35 …. 9.120, 9.124, 11.15, 11.102
Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 …. 24.99
Sydney Children’s Hospital Network (Randwick and Westmead) v X (2013) 49 Fam LR 330 …. 6.20
Sydney City Council v Bosnich [1968] 3 NSWR 725 …. 17.7
Sydney County Council v Dell’Oro (1974) 132 CLR 97; 4 ALR 417 …. 11.30
Sydney Municipal Council v Bourke [1895] AC 433 …. 25.84
Sydney Refractive Eye Surgery Centre Pty Ltd v Beaumont [2004] NSWSC 164 …. 23.130
Sydney South West Area Health Services v MD (2009) 260 ALR 702 …. 13.83
Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20 …. 10.131, 10.141, 12.64
Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; [2002] FCAFC 157 ….
24.14
Sykes v Midland Bank Executor & Trustee Co Ltd [1971] 1 QB 113 …. 9.108
— v Reserve Bank of Australia (1998) 158 ALR 710 …. 19.108
Symes v Mahon [1922] SASR 447 …. 3.58, 3.67, 6.12
Szanto v Melville [2011] VSC 574 …. 23.97
T
T (Adult: Refusal of Treatment), Re [1993] Fam 95 …. 6.25
T J Larkins & Sons v Chelmer Holdings Pty Ltd [1965] Qd R 68 …. 19.78
Tabcorp Holdings Ltd v Dank [2011] QCA 253 …. 9.43
Tabet v Gett (2010) 240 CLR 537; 265 ALR 227; 84 ALJR 292 …. 12.1, 12.19
Taccone v Electric Power Transmission Pty Ltd [1962] Qd R 545 …. 15.65
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 …. 19.92
Taff Vale Railway Co v Jenkins [1913] AC 1 …. 16.21
Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 …. 10.10
TAL Structural Engineers Pty Ltd v Vaughan Constructions Pty Ltd [1989] VR 545 …. 18.40
Talbot and Olivier (a firm) v Witcombe (2006) 32 WAR 179 …. 10.105
Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 …. 24.20, 24.26
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 ….
8.3, 10.1, 10.7, 10.28, 10.30, 10.31, 10.42, 10.44, 10.48, 10.50, 10.53, 10.54, 10.55, 10.56, 10.58, 10.59,
10.61, 10.62, 10.64, 10.65, 10.71, 11.39, 11.40, 11.41, 11.43
Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51 …. 24.23
Tassone v Kirkham [2014] SADC 134 …. 22.36
Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 …. 25.85
Tavener Rutledge Ltd v Trexapalm Ltd [1977] RPC 275 …. 24.31
Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 …. 23.24
— v O’Connor [1971] AC 115 …. 16.36
— v Owners Strata Plan No 11564 (2014) 253 CLR 531; 306 ALR 547 …. 16.45, 16.49
— v Stratford [2004] 2 Qd R 224 …. 14.9
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 …. 4.23, 4.30, 4.33, 4.52, 4.62, 4.64, 6.6, 6.9
Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 138 CLR 645 …. 19.84
Telatax Consultants v Williams [1989] 1 NZLR 698 …. 23.28
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 …. 23.42
Telnikoff v Matusevitch [1992] 2 AC 343 …. 23.90
10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 …. 24.26
Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 …. 10.139, 19.18, 19.19, 19.20, 19.23,
19.24, 19.25, 19.27, 19.31, 19.36, 19.41
Tetley v Chitty [1986] 1 All ER 663 …. 25.12
Teubner v Humble (1963) 108 CLR 491 …. 15.83, 15.120, 15.124
Tharpe v Stallwood (1843) 5 Man & G 760; 134 ER 766 …. 5.8
Thatcher v Charles (1961) 104 CLR 57 …. 15.83
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 …. 23.1, 23.71, 23.72, 23.73
Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627 …. 23.88
— v High (1960) SR (NSW) 401 …. 5.57
— v Iselin [1972] QWN 15 …. 15.75
— v Kula [2001] WASCA 362 …. 15.104
— v Quartermaine (1887) 18 QBD 685 …. 13.49
Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391 …. 6.67
Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1 …. 21.5, 21.8, 22.78,
23.94
— v Canik (1998) 145 FLR 438 …. 10.105
— v Faraonio (1979) 24 ALR 1 …. 15.150
— v Johnson & Johnson Pty Ltd [1991] 2 VR 449 …. 9.123
— v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 …. 11.70
— v ‘Truth’ and ‘Sportsman’ Ltd (No 4) (1932) 34 SR (NSW) 21 …. 22.61
— v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR 452 …. 9.10, 9.14, 13.15
Thompson-Schwab v Costaki [1956] 1 WLR 335; [1956] 1 All ER 652 …. 25.16
Thornton v Lessbrook Pty Ltd (t/as Transair) [2010] QSC 308 …. 16.43
— v Sweeney (2011) 59 MVR 155 …. 11.58
— v Wollondilly Mobile Engineering Pty Ltd [2012] NSWSC 621 …. 20.70
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513 …. 18.51,
18.56, 18.58, 18.61, 18.62
Tipperary Developments Pty Ltd v Western Australia (2009) 258 ALR 124 …. 19.4, 19.52
Tippett v Fraser (1999) 74 SASR 522 …. 17.8
TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 …. 9.41, 9.42
TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; 53 ALJR 267 …. 11.97, 12.53
Tobin v Dodd [2004] WASCA 288 …. 10.105
Todd v Swan Television and Radio Broadcasters Pty Ltd (2001) 25 WAR 284 …. 22.86
Todman v Victa Ltd [1982] VR 849 …. 9.122
Todorovic v Waller (1981) 150 CLR 402; 37 ALR 481 …. 15.25, 15.36, 15.141, 15.142
Toll Pty Ltd v Dakic [2006] NSWCA 58 …. 1.62, 12.31
Tolley v J S Fry & Sons Ltd [1931] AC 333 …. 22.14, 22.57
Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044 …. 23.33, 23.36, 23.58
Toohey v Hollier (1955) 92 CLR 618 …. 16.31, 17.10, 17.17
Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 …. 22.58
Torette House Pty Ltd v Berkman (1940) 62 CLR 637 …. 25.9
Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 …. 24.54
Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts Reports ¶81-292 ….
9.123
Tow & Salvage Ltd v Murray [1984] 2 NZLR 144 …. 6.47
Towne v Eisner 245 US 418 (1918) …. 22.36
Trade Practices Commission v Queensland Aggregates Pty Ltd (1982) 44 ALR 391 …. 20.55
Traffic Calming Australia Pty Ltd v CTS Creative Traffic Solutions Pty Ltd [2015] VSC 741 …. 24.55
Traian v Ware [1957] VR 200 …. 25.68
Trailways Transport Ltd v Thomas (1996) 2 NZLR 443 …. 5.83
Transco plc v Stockport Metropolitan Borough Council [2003] 3 WLR 1467 …. 1.7, 25.31, 25.38
Travel Compensation Fund v Tambree (t/as R Tambree & Associates) (2005) 224 CLR 627; 222 ALR
263 …. 1.29, 1.61, 12.30, 12.31
Travers v Gloucester Corporation [1947] KB 71 …. 9.21
Travis v Vanderloos (1984) 54 LGRA 268 …. 10.10
Treloar v Wickham (1961) 105 CLR 102 …. 15.136
Trevett v Lee [1955] 1 All ER 406; [1955] 1 WLR 113 …. 25.59, 25.88
Trevitt v NSW TAFE Commission [2001] NSWCA 363 …. 3.19, 3.81, 3.83
Triggell v Pheeney (1951) 82 CLR 497 …. 23.120, 23.123, 23.124
Trobridge v Hardy (1955) 94 CLR 147; [1956] ALR 15 …. 3.46, 7.16
Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 ….
20.26
Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 …. 22.80, 22.88
Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684 …. 3.22, 3.29
Tucker v McCann [1948] VLR 222 …. 11.78, 18.18
— v Tucker [1956] SASR 297 …. 11.10
Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 …. 23.46
— v News Group Newspapers Ltd [2006] 1 WLR 3469 …. 23.132
Tweed Shire Council v Howarth [2009] NSWCA 103 …. 9.79
Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 34 IPR 225 ….
24.22, 24.27
U
Ultramares Corporation v Touche (1931) 174 NE 441 …. 10.81
Underhill v Sherwell [1997] NSWCA 325 …. 6.31
Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2 QB 205 …. 5.46, 5.51
Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385 …. 5.33
University of Wollongong v Mitchell (2003) Aust Torts Reports ¶81-708 …. 11.51
Unsworth v Commissioner for Railways (1958) 101 CLR 73 …. 21.24
Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127 …. 22.89
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 …. 1.35, 15.19, 15.24, 23.115, 23.126
V
Vagg v McPhee (2013) 85 NSWLR 154 …. 10.101
Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 …. 9.6, 9.18, 11.2, 11.47, 11.58, 11.60,
13.95
Van den Heuvel v Tucker (2003) 85 SASR 512 …. 9.60
Van Gervan v Fenton (1992) 175 CLR 327; 109 ALR 283 …. 15.90
Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35 …. 18.41, 18.43, 18.45
Vaughan v Benalla Shire (1891) 17 VLR 129 …. 25.7
Veivers v Connolly [1995] Qd R 326 …. 12.13
Venning v Chin (1974) 10 SASR 299; (1975) 49 ALJR 378 …. 2.9, 2.22, 6.60, 6.61
Versic v Conners (1969) 90 WN (NSW) (Pt 1) 331 …. 11.78
Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 …. 1.11, 1.12, 7.23,
7.24
Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 …. 10.40
Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 …. 24.8, 24.23
Vignoli v Sydney Harbour Casino (2000) Aust Torts Reports ¶81-541 …. 3.62
Villasevil v Pickering (2001) 24 WAR 167 …. 15.86
Vincent v Peacock [1973] 1 NSWLR 466 …. 25.26
— v Woolworths Ltd [2016] NSWCA 40 …. 9.46, 11.44
Vine v Waltham Forest London Borough Council [2000] 4 All ER 169 …. 5.21
Visser v South Australian Housing Trust (1995) 65 SASR 571 …. 9.34
Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 …. 22.93
Voli v Inglewood Shire Council (1963) 110 CLR 74 …. 1.29, 9.91, 10.115
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 …. 22.23
W
W v Eaton [2011] TASSC 4 …. 14.43
W B Anderson & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All ER 850 …. 19.77
Wade Sawmill Pty Ltd v Colenden Pty Ltd (t/as Pilks Pine) [2007] QCA 455 …. 5.93
Wagstaff v Edison Bell Phonograph Corporation (1893) 10 TLR 80 …. 25.89
Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 …. 9.109
Walker v Tugend (1981) 28 SASR 194 …. 15.37
Walker-Flynn v Princeton Motors Pty Ltd [1960] SR (NSW) 488 …. 15.40
Wallace v Kam [2012] NSWCA 82 …. 12.88, 12.89
— v — (2013) 250 CLR 375; 297 ALR 383 …. 9.97, 11.77, 12.37, 12.58, 12.60, 12.61
— v Powell (2000) 10 BPR 18,481 …. 25.77
Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457 …. 1.11, 1.52, 1.62, 12.11, 12.12
— v Suncorp Metway Insurance Ltd [2010] 2 Qd R 560 …. 15.132
Walsh v Ervin [1952] VLR 361 …. 25.79, 25.80, 25.85, 25.95
Walter v Alltools Ltd (1944) 171 LT 371 …. 3.49
— v Selfe (1851) 4 De G & Sm 315; 64 ER 849 …. 25.40
Wann v Fire and All Risks Insurance Co Ltd [1990] 2 Qd R 596 …. 15.91
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247 …. 14.23, 14.26, 19.115
Warren v Coombes (1979) 142 CLR 531; 23 ALR 405 …. 11.96
Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 …. 23.59, 23.61, 23.70
Waters v Mussig [1986] 1 Qd R 224 …. 15.104
Watkins v Victoria (2010) 27 VR 543 …. 6.30, 6.31, 6.33
Watson v Buckley [1940] 1 All ER 174 …. 9.123
— v Cowen [1959] Tas SR 194 …. 4.42
— v Croft Promo-Sport Ltd [2009] 3 All ER 249 …. 25.26
— v Marshall (1971) 124 CLR 621 …. 3.47, 3.58, 3.59
— v McEwan [1905] AC 480 …. 23.24, 23.26
— v Ramsay [1960] NSWR 462 …. 15.135
Watt v Bretag (1982) 41 ALR 597; 56 ALJR 760 …. 13.46
— v Hertfordshire County Council [1954] 2 All ER 368 …. 11.67
— v Longsdon [1930] 1 KB 130 …. 23.34, 23.40
— v Rama [1972] VR 353 …. 1.22, 9.59
Wattleworth v Goodwood Road Racing Company Ltd [2004] EWHC 140 …. 9.61
Watts v Leach [1973] Tas SR 16 …. 3.80
Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195 …. 9.52, 18.3, 18.13, 18.29, 18.31
Waverley Council v Ferreira (2005) Aust Torts Reports ¶81-818 …. 11.35, 13.11
Waverley Municipal Council v Swain (2002) Aust Torts Reports ¶81-694 …. 11.93
Weaver v Ward (1617) (1617) Hob 134; 80 ER 284 …. 3.3, 6.65
Webb v Bloch (1928) 41 CLR 331 …. 22.78, 23.56
— v Fox (1797) 7 Term Rep 391; 101 ER 1037 …. 5.5
Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235 …. 15.53
Wells v Cooper [1958] 2 QB 265 …. 11.20
Wennhak v Morgan (1888) 20 QBD 635 …. 22.76
Wensink v Marshall (2010) 56 MVR 20 …. 11.82
Wertheim v Cheel (1885) 11 VLR 107 …. 5.31
West v Government Insurance Office (NSW) (1981) 148 CLR 62; 35 ALR 437 …. 11.98, 12.53
— v Peters (1976) 18 SASR 338 …. 2.9, 2.22
Western Australia v Ward (2002) 213 CLR 1 …. 4.9
Western Counties Manure Co v Lawes Chemical Manure Co (1874) LR 9 Ex 218 …. 24.88
Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184 …. 5.89
Weston v Woodroffe (1985) 36 NTR 34 …. 15.125
Westripp v Baldock [1939] 1 All ER 27 …. 4.42
Wheat v E Lacon & Co Ltd [1966] AC 552 …. 9.22
Wheeler v J J Saunders Ltd [1996] Ch 19 …. 25.44
— v New Merton Board Mills Ltd [1933] 2 KB 669 …. 18.38
— v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113 …. 15.45
Wherry v K B Hutcherson Pty Ltd (1987) Aust Torts Reports ¶80-107 …. 25.45, 25.49
Whitaker v Federal Commissioner of Taxation (1996) Aust Torts Reports ¶81-400 …. 15.150
White v Boulton (1791) Peake 113 …. 1.40
— v Connolly [1927] St R Qd 75 …. 3.44, 6.35
— v Jameson (1874) LR 18 Eq 303 …. 25.82
— v Johnston (2015) 87 NSWLR 77 …. 3.13
— v Jones [1995] 2 AC 207 …. 9.103, 10.104
— v Mellin [1895] AC 154 …. 24.91, 24.93, 24.96
— v Riley [1921] 1 Ch 1 …. 24.63
Whitely Ltd v Hilt [1918] 2 KB 808 …. 5.101
Whittaker v Child Support Registrar (2010) 264 ALR 473 …. 3.59
— v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 …. 18.17, 18.26
Whitton v New South Wales [2005] NSWCA 97 …. 9.37
Whitwham v Westminster Brymbo Coal and Coke Co [1896] 1 Ch 894 …. 4.53
Wickham v Associated Pool Builders Pty Ltd (1988) 12 IPR 567 …. 24.26
Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 WLR 295 …. 5.89
Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR 23 …. 10.58, 10.70
Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006 …. 12.66
Wilchick v Marks [1934] 2 KB 56 …. 25.14
Wilkinson v Downton [1897] 2 QB 57 …. 7.1, 7.2, 7.4, 7.5, 7.6, 7.7, 14.43, 19.66
Willard King Organisation Pty Ltd v United Telecasters Sydney Ltd [1981] 2 NSWLR 547 …. 24.6
Willcox v Sing [1985] 2 Qd R 66 …. 11.91
Willett v Futcher (2005) 221 CLR 627; 221 ALR 16 …. 15.131
Willey v Synan (1937) 57 CLR 200 …. 5.15
William Leitch & Co v Leydon [1931] AC 90 …. 5.27
Williams v Birmingham Battery and Metal Co [1899] 2 QB 338 …. 16.8
— v Commissioner for Road Transport (1933) 50 CLR 258 …. 13.2
— v Hursey (1959) 103 CLR 30 …. 24.38, 24.69
— v Milotin (1957) 97 CLR 465; [1957] ALR 1145 …. 2.7, 2.10, 2.18, 12.1
— v Morland (1824) 2 B & C 910; 107 ER 620 …. 12.1
— v Natural Life Health Foods Ltd [1998] 2 All ER 577; [1998] 1 WLR 830 …. 19.24
— v Spautz (1992) 174 CLR 509; 107 ALR 635 …. 7.16, 18.41, 18.45, 18.46, 18.47, 18.50
— v Usher (1955) 94 CLR 450 …. 16.38
Williamson v Friend (1901) 1 SR (NSW) (Eq) 133 …. 25.83
Wilsher v Essex Area Health Authority [1987] QB 730 …. 12.45
Wilson v Horne (1999) 8 Tas R 363 …. 2.10, 14.18
— v Lombank Ltd [1963] 1 All ER 740 …. 5.13
— v Marshall [1982] Tas R 287 …. 5.22, 5.28
— v New South Wales (2010) 278 ALR 74 …. 4.32
— v Nilepac Pty Ltd (t/as Vision Personal Training) (Crows Nest) [2011] NSWCA 63 …. 11.68
— v Peisley (1975) 50 ALJR 207 …. 15.151
— v Pringle [1987] QB 237 …. 3.9
— v Tyneside Window Cleaning Co [1958] 2 QB 110 …. 9.38
Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 …. 9.33
Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644 …. 6.61
Winchester v Fleming [1957] 4 All ER 711 …. 17.13, 17.14
Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87 …. 4.52, 4.54
Winkfield, The [1902] P 42 …. 5.89
Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 …. 15.46, 15.49, 25.72, 25.74
— v — [2016] VSCA 187 …. 25.72
Winsmore v Greenbank (1745) Willes 577; 125 ER 1330 …. 17.13, 24.38
Winter v Bennett [1956] VLR 612 …. 6.60
Winterbottom v Wright (1842) 10 M & W 109 …. 1.41
Wishart v Mirror Newspapers Ltd [1964] NSWR 231 …. 23.126
Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222 …. 5.59, 5.95
— v Parkside Health NHS Trust [2003] 3 All ER 932 …. 7.5
Wood v Balfour (2011) 15 BPR 29,773 …. 19.73
Woodland v Essex County Council [2013] UKSC 66 …. 20.17
Woodridge v Sumner [1963] 2 QB 43 …. 13.66
Woods v Martins Bank Ltd [1959] 1 QB 55 …. 19.1
— v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 …. 9.18, 11.62, 11.69, 11.70, 11.87,
13.59, 13.95
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522 …. 1.30, 8.13,
10.15, 10.28, 10.109, 10.111, 10.112, 10.113, 10.115, 10.116, 10.117, 10.118, 14.24, 19.22
Woolley v Dunford (1972) 3 SASR 243 …. 24.43, 24.54
Woolworths Ltd v Crotty (1942) 66 CLR 603 …. 16.4
— v Perrins [2015] QCA 207 …. 9.34, 10.51, 10.72
— v Ryder (2014) 87 NSWLR 593 …. 9.12
WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420 …. 16.2
World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 …. 22.50
Wormald v Cole [1954] 1 QB 614 …. 26.24, 26.26
Worth v Gilling (1866) LR 2 CP 1 …. 26.5
Wotton v Queensland (2012) 285 ALR 1; 86 ALJR 246 …. 23.75
Wright v Cedzich (1930) 43 CLR 493 …. 17.13
— v West Australian Trustee & Agency Co Ltd [1987] VR 771 …. 16.47
Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160 …. 10.59
Wyld v Bertram [1970] SASR 1 …. 15.65
Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25; 72 ALJR 65 …. 13.25
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485; 133 ALR 154 ….
15.87, 15.88
Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 …. 18.12
Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 …. 8.14, 8.15, 8.16, 11.1, 11.35, 11.36,
11.38, 11.39, 11.46, 11.60, 11.83, 11.86
X
X v South Australia (No 2) (2005) 91 SASR 258 …. 9.90
X and Y v Pal (1991) 23 NSWLR 26 …. 1.22, 9.98
X (Minors) v Bedfordshire County Council [1995] 2 AC 633 …. 18.8, 18.17, 18.18
XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639 …. 1.36,
4.62, 15.20, 21.7
Y
Yakamia Dairies Pty Ltd v Wood [1976] WAR 57 …. 4.53
Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 …. 21.32
Yates Property Corporation Pty Ltd (in liq) v Boland (1998) 85 FCR 84; 157 ALR 30 …. 11.15
Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513 …. 20.69
Yonge v Toynbee [1910] 1 KB 215 …. 1.26
Yorke v Lucas (1985) 158 CLR 661 …. 19.97
Young and Harston’s Contract, Re (1885) 31 Ch D 168 …. 16.4
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 …. 22.14, 22.16, 22.36, 22.38,
22.46, 22.59
Z
Zanker v Vartzokis (1988) 34 A Crim R 11 …. 3.21, 3.22, 3.25
Zanner v Zanner (2010) 79 NSWLR 702 …. 9.57, 11.10, 12.34, 12.36, 12.40, 12.42, 12.60, 12.87
Zheng v Cai (2009) 261 ALR 481 …. 15.134
Zhu v Treasurer of New South Wales (2004) 218 CLR 530; 211 ALR 159 …. 24.57, 24.58
Zimitat v Douglas [1979] Qd R 454 …. 3.85
Zoef v Nationwide News Pty Ltd [2015] NSWDC 232 …. 22.68
Zordan v Metropolitan (Perth) Passenger Transport Trust [1963] ALR 513 …. 16.40
Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354 …. 20.48
Zoukra v Lowenstern [1958] VR 594 …. 13.46
Zraika (by his tutor Zraika) v Walsh (No 2) (2014) 66 MVR 588 …. 15.37
Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 …. 20.11
Zurich Australia Insurance Ltd v Rourmanos (2013) 65 MVR 561 …. 15.76
Zwambila v Wafawarova [2015] ACTSC 171 …. 22.22
Table of Statutes
References are to paragraph numbers
COMMONWEALTH
Australian Capital Territory (Self-Government) Act 1988
s 24(3) …. 23.23
Australian Consumer Law …. 1.50, 9.120, 9.128, 10.79, 19.3, 19.93, 19.95, 19.96, 19.97, 19.99, 19.101,
19.102, 19.104, 22.96, 22.97
Ch 3 Pt 3-5 …. 9.128
s 2 …. 19.97, 19.99, 19.113
s 2(2) …. 19.104
s 4 …. 19.107
s 4(2) …. 19.108
s 7 …. 9.128
s 7(1) …. 9.129
s 9(1) …. 9.128
s 9(2) …. 9.128
s 18 …. 1.50, 19.94, 19.98, 19.105, 19.109, 19.110, 19.113, 19.115, 22.95, 22.97, 22.98, 22.99, 24.34,
24.35, 24.36, 24.100
s 18(1) …. 19.95
s 19 …. 22.97, 22.99
s 19(2) …. 22.98
s 19(3) …. 22.98
s 19(4) …. 22.97
s 19(5) …. 22.97
s 138 …. 9.128
s 139 …. 9.128
s 140 …. 9.128
s 141 …. 9.128
s 142 …. 9.130
s 143(1) …. 9.130
s 143(2) …. 9.130
s 236 …. 18.7, 19.110, 19.114
s 236(1) …. 19.110
s 236(2) …. 19.115
Australian Federal Police Act 1979
s 64B …. 20.20
Australian Solicitors Conduct Rules …. 9.116, 9.117
r 2.2 …. 9.117
r 4.1 …. 9.116
Broadcasting Services Act 1992 …. 22.97, 23.94
s 206 …. 22.17
Sch 5 cl 91 …. 22.91, 23.94
Civil Aviation Regulations 1988 …. 3.73
Competition and Consumer Act 2010 …. 1.50, 9.128, 19.93
Pt XI …. 19.93
s 6(3) …. 19.95, 22.96
s 87(2)(a) …. 15.4
s 131(1) …. 19.102
s 131A …. 19.102
s 137A …. 9.128
s 137B …. 19.112
s 139B(2) …. 19.97
Sch 2 …. 9.128, 9.129, 9.130, 19.93, 19.94, 22.95, 24.34
Sch 2 s 18 …. 19.92
Constitution …. 23.72, 23.73, 23.75, 23.76
s 7 …. 23.73
s 24 …. 23.73
s 51(i) …. 6.59
s 64 …. 23.73
s 128 …. 23.73
Copyright Act 1968 …. 24.37
Corporations Act 2001 …. 22.85
s 46 …. 22.85
s 50 …. 22.85
Crimes Act 1914
s 3T …. 4.37
s 3W …. 3.66
s 3Z …. 3.70
Customs Act 1901 …. 3.73
Family Law Act 1975 …. 3.35
s 119 …. 22.76
s 120 …. 17.16
Health Insurance Act 1973 …. 15.139
s 18 …. 15.139
Industrial Relations Act 1988 …. 18.19
s 178 …. 18.19
Insurance Contracts Act 1984
s 66 …. 21.26
Judiciary Act 1903
s 77MA …. 15.144
Migration Act 1958 …. 3.73, 3.74
s 189 …. 3.74
National Consumer Credit Protection Act 2009
s 178 …. 5.16
Navigation (Loading and Unloading) Regulations 1941 …. 18.20
Parliamentary Papers Act 1907
ss 2–4 …. 23.23
Parliamentary Privileges Act 1987 …. 23.23
s 10 …. 23.23
Parliamentary Proceedings Broadcasting Act 1946
s 15 …. 23.23
Personal Property Securities Act 2009 …. 5.17
Pt 2.5 …. 5.17
s 45 …. 5.17
s 147 …. 5.17
Privacy Act 1988 …. 7.29
Royal Commissions Act 1902
s 7 …. 23.31
Safe Work Australia Act 2008 …. 9.56
Safety, Rehabilitation and Compensation Act 1988 …. 9.54
s 45 …. 21.19
Social Security Act 1991 …. 15.138
s 17(1) …. 15.138
s 1178 …. 15.138
s 1184 …. 15.138
Sydney 2000 Games (Indicia and Images) Protection Act 1996 …. 24.57
Taxation Laws Amendment (Structured Settlements and Structured Orders) Act 2002 …. 15.38
Telecommunications Act 1997
s 484 …. 6.48
Sch 3 …. 6.48
Trade Marks Act 1995
s 120 …. 24.37
s 230 …. 24.37
Trade Practices Act 1974 …. 1.50, 9.120, 9.127, 9.128, 19.3, 19.93, 19.112
Pt VA …. 9.127
s 52 …. 1.50, 19.93, 19.94, 19.98, 19.100, 22.95, 22.99, 24.34
s 65A …. 22.99
s 87CB(3) …. 21.37
AUSTRALIAN CAPITAL TERRITORY
Age of Majority Act 1974 …. 1.21
s 5 …. 6.19
Building Act 2004
Pt 6 …. 10.119
s 142 …. 14.11
Civil Law (Wrongs) Act 2002 …. 1.51, 13.41
Ch 2 Pt 2.1 …. 13.100
Ch 2 Pt 2.2 …. 13.102
Ch 2 Pt 2.2A …. 13.103
Ch 3 Pt 3.2 …. 10.69
Ch 7A …. 21.32
Ch 9 …. 22.8
Ch 14 …. 15.149
Pt 2.4 …. 16.51
Div 9.3.1 …. 23.102
s 5 …. 11.29
s 15(2) …. 22.81
s 16(3)(a) …. 16.56, 16.57
s 16(3)(b) …. 16.44
s 16(4) …. 16.55
s 16(5) …. 16.57
s 20(1) …. 21.6
s 20(2)(a) …. 21.12
s 20(2)(b) …. 21.12
s 21(1) …. 21.16
s 21(2) …. 21.22
s 21(3) …. 21.22
s 23(a) …. 16.17
s 23(c) …. 16.18
s 23(e) …. 16.18
s 24 …. 16.3
s 26 …. 16.42
s 26(e) …. 16.40
s 27 …. 16.44
s 34 …. 10.59
s 35 …. 19.88
s 35(1) …. 10.45
s 35(2) …. 10.46
s 36(5) …. 13.61
s 40 …. 12.6
s 41 …. 12.3
s 42 …. 11.8
s 43 …. 11.34
s 43(2) …. 11.49
s 44(a) …. 11.64
s 44(b) …. 11.65
s 44(c) …. 11.66
s 45 …. 15.37
s 45(1)(a) …. 12.33
s 45(1)(b) …. 12.57
s 45(2) …. 12.39
s 45(3) …. 12.55
s 45(4) …. 12.57
s 46 …. 12.54
s 47 …. 13.26
s 50(4) …. 13.40
s 51 …. 14.9
s 92 …. 13.33, 16.45
s 94 …. 13.77
s 94(2) …. 13.78
s 95 …. 13.34
s 95(2) …. 13.35
s 95(3) …. 13.41
s 96(2) …. 13.39
s 96(3) …. 13.41
s 97 …. 13.29
s 98 …. 15.81, 16.45
s 99 …. 15.111
s 99(4) …. 15.108
s 100 …. 15.105
s 101 …. 13.6
s 102 …. 25.59
s 102(1) …. 13.6
s 102(2) …. 18.40
s 104 …. 17.9
s 107B(2) …. 21.34
s 107D(1) …. 21.35
s 107E …. 21.40
s 107F(1)(a) …. 21.41
s 110 …. 10.131
s 110(b) …. 10.138
s 111 …. 18.33
s 113 …. 10.148
s 115(d) …. 23.102
s 116 …. 23.8
s 118 …. 22.9
s 118(1) …. 22.26
s 119 …. 22.18
s 120 …. 22.48
s 121 …. 22.84
s 122 …. 22.81
s 123 …. 22.21, 22.22
s 126 …. 23.99
s 129 …. 23.103
s 132 …. 23.133
s 134(1) …. 23.2
s 134(2) …. 23.49
s 135 …. 23.7
s 136 …. 23.12
s 137(1) …. 23.17
s 137(2)(a) …. 23.21
s 137(2)(b) …. 23.29
s 138(1) …. 23.68
s 139 …. 23.65
s 139A(1) …. 23.47
s 139B …. 23.91
s 139C …. 22.93, 23.95
s 139D …. 23.97
s 139E …. 23.117
s 139F …. 23.119
s 139F(2) …. 23.120
s 139G …. 15.24, 23.114
s 139H …. 15.23, 23.113
s 139I …. 23.137
s 139M …. 23.9
s 141 …. 6.38
s 168 …. 9.17
s 168(5) …. 9.17
s 169 …. 26.32
s 210 …. 17.16
s 210(a) …. 17.25
s 210(b) …. 17.26
s 212 …. 26.24
s 213 …. 6.47
s 214 …. 26.2, 26.35
s 218 …. 16.31, 17.12
Sch 3 …. 13.53
Civil Unions Act 2006
s 5 …. 16.17
Court Procedures Rules 2006
s 1619 …. 15.144
Crimes Act 1900
s 35(1) …. 3.33
s 212 …. 3.66
s 218 …. 3.70
Crimes (Sentencing) Act 2005 …. 3.34
Domestic Animals Act 2000
s 50 …. 26.17
s 50(3)(a) …. 26.20
s 50(3)(c) …. 26.21
s 50(3)(c)(i) …. 26.23
s 55(4)(a) …. 26.23
s 55(4)(b) …. 26.21
s 55(4)(c) …. 26.20
Domestic Violence and Protection Orders Act 2008 …. 3.35
Education Act 2004
s 7(4) …. 6.54
s 9 …. 9.69
Fair Trading (Australian Consumer Law) Act 1992
Pt 2 …. 19.93
s 11 …. 19.96
Guardianship and Management of Property Act 1991 …. 6.18
Legal Profession Act 2006 …. 9.118
Legislation Act 2001
s 169 …. 16.17
Limitation Act 1985 …. 14.1, 14.26
s 2 …. 14.31
s 4(a) …. 14.5
s 11 …. 14.26
s 11(1) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 16 …. 16.48
s 16B …. 3.88, 14.55
s 16B(2) …. 14.8, 14.19, 25.76
s 18 …. 5.104, 14.12
s 21 …. 14.64
s 21B …. 22.94
s 30 …. 14.30, 14.35
s 30A …. 14.37
s 30B …. 14.37
s 33 …. 19.91
s 33(1) …. 14.48
s 36(2) …. 14.55
s 36(5)(A) …. 14.55
s 40 …. 14.63
Dictionary …. 14.31, 14.40, 14.41
Liquor Ordinance 1975
s 79 …. 18.16
Magistrates Court Act 1930
Pt 2.3 …. 6.56
Medical Treatment (Health Directions) Act 2006
Pt 2 …. 6.26
Road Transport (Third Party Insurance) Act 2008 …. 9.65, 20.60
Sale of Goods Act 1954
s 29(2) …. 5.53
Supreme Court Act 1933
s 22 …. 22.62
Transplantation and Anatomy Act 1978
s 23 …. 6.23
Victims of Crime (Financial Assistance) Act 1983 …. 1.48
Work Health and Safety Act 2011 …. 9.49, 9.52
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Workers’ Compensation Act 1951 …. 9.54
s 184(2) …. 15.137
NEW SOUTH WALES
Animals Act 1977
s 4(1) …. 26.24
s 5 …. 6.47
s 7(2)(a) …. 26.2
s 7(2)(b) …. 26.35
s 10 …. 26.32
Anti-Discrimination Act 1977 …. 22.40
Casino Control Act 1922 …. 18.17
Casino Control Regulations 1995 …. 18.17
Children and Young Persons (Care and Protection) Act 1998
s 174 …. 6.23
Civil Liability Act 2002 …. 1.51, 3.78, 13.69, 15.106, 15.116, 21.36
Pt 1A …. 13.100
Pt 2 Div 7 …. 15.37
Pt 3 …. 10.69
Pt 4 …. 21.32, 21.36
Pt 8 …. 11.29
Pt 8A …. 13.103
Pt 9 …. 13.102
Pt 11 …. 15.28
s 3 …. 15.108
s 3A …. 1.30
s 3B …. 7.8, 12.3
s 3B(1)(a) …. 3.78
s 5 …. 12.6
s 5B …. 11.34, 11.37
s 5B(2) …. 11.49
s 5C(a) …. 11.64
s 5C(b) …. 11.65
s 5C(c) …. 11.66
s 5D …. 12.33, 12.60, 13.100
s 5D(1) …. 12.34
s 5D(1)(a) …. 12.35, 12.37, 12.39, 12.88
s 5D(1)(b) …. 12.57, 12.58, 12.60, 12.88
s 5D(2) …. 12.39, 12.41, 12.88
s 5D(3) …. 12.55
s 5D(4) …. 12.57, 12.58, 12.88
s 5E …. 12.54
s 5F …. 11.63, 13.53, 26.33
s 5G …. 13.53, 26.33
s 5H …. 11.63, 13.93, 26.31
s 5H …. 13.93
s 5H(2) …. 13.87
s 5I …. 13.96
s 5I(3) …. 13.100
s 5K …. 13.67
s 5L …. 13.67
s 5O …. 11.72
s 5O(1) …. 11.18
s 5P …. 13.91
s 5Q …. 20.84
s 5R …. 13.9, 13.11
s 5S …. 13.26
s 5T …. 16.44
s 12 …. 15.81, 16.45
s 12(1)(c) …. 16.45
s 12(2) …. 16.45
s 13 …. 15.74
s 14 …. 15.142
s 15 …. 15.98, 15.106
s 15(4) …. 15.103
s 15(5) …. 15.103
s 15A …. 15.106
s 15B …. 15.105, 15.106
s 15B(1) …. 15.106
s 15B(2)(b) …. 15.106
s 15C …. 15.82
s 16 …. 15.111
s 16(1) …. 15.110
s 16(2) …. 15.109
s 18 …. 15.147
s 19(1)(b) …. 16.48
s 21 …. 15.21
s 24 …. 15.37
s 82 …. 15.37
s 30(2) …. 10.70
s 30(2)(a) …. 10.70
s 31 …. 10.45, 10.46, 19.88
s 32 …. 10.59
s 32(1) …. 10.59
s 32(2) …. 10.59
s 33 …. 10.46
s 34(1) …. 21.34
s 34(2) …. 21.35, 21.36
s 34(3A) …. 21.39
s 34A …. 21.40
s 35(1)(a) …. 21.41, 21.42
s 42 …. 10.131
s 42(a) …. 10.138
s 42(b) …. 10.138
s 43 …. 18.33
s 45 …. 10.148, 10.150
s 45(1) …. 10.150
s 48 …. 13.33
s 49(1)(c) …. 11.33
s 50 …. 13.36, 13.82, 13.83
s 50(1) …. 13.36
s 50(2) …. 13.36, 13.85
s 50(2)–(5) …. 13.35
s 52 …. 6.32, 6.34
s 54 …. 13.77
s 54(5) …. 13.78
s 56 …. 13.99
s 57(1) …. 13.99
s 58(1) …. 13.99
s 58(2) …. 13.99
s 71 …. 12.14
s 72(1) …. 4.21
s 96 …. 13.38
Sch 2 cl 1 …. 17.12
Civil Procedure Act 2005
s 100 …. 15.144
Companion Animals Act 1998
s 16(2) …. 26.20
ss 25–28 …. 26.17
s 25(2) …. 26.23
s 28 …. 26.21
Compensation to Relatives Act 1897
s 3(1) …. 16.3
s 3(3) …. 16.42
s 4(1) …. 16.25
s 4(2) …. 16.17
s 5 …. 16.25
s 6B(1) …. 16.25
s 7(1) …. 16.18, 16.19
s 7(4) …. 16.17
Contracts Review Act 1980 …. 13.104
Conveyancing Act 1919
s 120A(1) …. 4.8
s 177 …. 25.20
s 179 …. 25.21
Crimes Act 1900
s 78H …. 7.17
Crimes (Domestic and Personal Violence) Act 2007 …. 3.35
s 13(1) …. 3.33
Defamation Act 1974 …. 22.5
s 13 …. 23.99
s 16 …. 23.11, 23.14
Defamation Act 2005 …. 22.8, 22.85
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 21(1) …. 22.62
s 21(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
s 25 …. 23.7
s 26 …. 23.12, 23.70
s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
s 28(1) …. 23.68
s 29 …. 23.65
s 30(1) …. 23.47
s 31 …. 23.91
s 32 …. 22.93, 23.95
s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Dust Diseases Tribunal Act 1989
s 12A …. 14.5
s 12B …. 16.55
Education Act 1990
s 21B(3) …. 9.69
s 35(2A) …. 6.54
s 47(h) …. 6.54
Employees Liability Act 1991
s 3 …. 21.26
s 5 …. 20.88
Encroachment of Buildings Act 1922 …. 4.70
Fair Trading Act 1987
Pt 3 …. 19.93
s 32 …. 19.96
s 87A …. 19.97
Guardianship Act 1987 …. 6.18
s 37 …. 6.24
Home Building Act 1989
Pt 2C …. 10.119
Interpretation Act 1987
s 21C …. 16.17
Judicial Officers Act 1986
Pt 8A …. 6.56
Law Enforcement (Powers and Responsibilities) Act 2002
ss 9–10 …. 4.37
s 99 …. 3.66
s 100 …. 3.70
Law Reform (Marital Consortium) Act 1984
s 3 …. 16.31
Law Reform (Miscellaneous Provisions) Act 1944
s 2 …. 16.51
s 2(2) …. 22.81
s 2(2)(a)(i) …. 16.56
s 2(2)(a)(ii) …. 16.54
s 2(2)(c) …. 16.57
s 2(2)(d) …. 16.54
Law Reform (Miscellaneous Provisions) Act 1946
s 5(1)(a) …. 21.6
s 5(1)(b) …. 21.12, 21.13
s 5(1)(c) …. 21.16
s 5(2) …. 21.22
Law Reform (Miscellaneous Provisions) Act 1965
s 5 …. 13.6
s 9(1) …. 13.6, 25.59
s 12 …. 21.12
s 13 …. 16.44
Law Reform (Vicarious Liability) Act 1983 …. 20.22, 20.88
s 8 …. 20.20
Legal Profession Uniform Law Application Act 2014 …. 9.118
s 61 …. 15.149
s 62 …. 15.149
Limitation Act 1969 …. 14.1
s 6A …. 14.45
s 7(a) …. 14.5
s 11(3) …. 14.31, 14.42
s 11(3)(b) …. 14.40
s 11(3)(b)(i) …. 14.41
s 14(1)(b) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 14B …. 22.94
s 18A …. 3.88, 14.8, 25.76
s 21 …. 5.104, 14.12
s 26 …. 14.64
s 50A …. 14.19
s 50C …. 14.8, 14.19, 14.33, 14.56, 25.76
s 50C(1)(b) …. 14.20
s 50D …. 14.19
s 50F …. 14.33
s 52 …. 14.30
s 55 …. 19.91
s 55(1) …. 14.48
s 56 …. 14.48
s 56A …. 22.94
s 58 …. 14.56
s 60C …. 14.56
ss 60F–60J …. 14.56
s 62A(2) …. 14.56
Limitation Amendment (Child Abuse) Act 2016 …. 14.45
Liquor Act 1982 …. 9.24
Local Government Act 1993
s 199 …. 4.36
Mental Health Act 1990 …. 10.71
Mental Health Act 2007
s 22 …. 3.73
Minors (Property and Contracts) Act 1970 …. 1.21, 6.19
s 9 …. 6.19
Motor Accidents Act 1988 …. 15.116
Motor Accidents Compensation Act 1999 …. 9.65
Ch 2 …. 20.60
s 81 …. 15.37
s 138 …. 13.44
s 138(2)(c) …. 13.29
s 140 …. 13.61
s 142 …. 17.9
s 144 …. 15.22
Occupational Health and Safety Regulation 2001 …. 18.12
Partnership Act 1892
s 10(1) …. 20.4
Prisons Act 1952
s 16(2) …. 6.50
Protection of the Environment Operations Act 1997 …. 10.145
s 91 …. 10.142
Registered Clubs Act 1976 …. 10.37
s 44A …. 10.37
Sale of Goods Act 1923
s 28(2) …. 5.53
Scaffolding and Lifts Act 1912 …. 18.23, 18.35
Strata Schemes Management Act 1996
s 62 …. 18.30
Strata Titles Act 1973 …. 18.15
s 68 …. 18.15
Uniform Civil Procedure Rules 2005
Pt 15 r 21(2) …. 23.136
Victims Rights and Support Act 2013 …. 3.34
Victims Support and Rehabilitation Act 1996 …. 1.48
Water Traffic Regulations …. 20.58
Work Health and Safety Act 2011 …. 9.49, 9.52
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Workers Compensation Act 1987 …. 9.54
s 151A(2) …. 15.137
s 151Q …. 15.37
s 151R …. 15.22
Workplace Injury Management and Workers Compensation Act 1998 …. 9.54
NORTHERN TERRITORY
Adult Guardianship Act 1988 …. 6.18
Advance Personal Planning Act 2013
Pt 2 …. 6.26
s 53 …. 6.22
Age of Majority Act 1981 …. 1.21
s 4 …. 6.19
Building Act 1993 …. 21.30
s 160 …. 14.11
Compensation (Fatal Injuries) Act 1974
s 4(2)(a) …. 16.17
s 4(2)(c) …. 16.18
s 4(2)(d) …. 16.18
s 5 …. 16.45
s 5(1) …. 16.46
s 7 …. 16.3
s 7(2) …. 16.9
s 8 …. 16.25
s 10(3)(c) …. 16.31
s 10(3)(f) …. 10.30
s 10(4) …. 16.42
s 10(4)(h) …. 16.38
s 10(5) …. 16.9
s 11(1) …. 16.44
s 13(1) …. 16.25
s 17 …. 16.48
Consumer Affairs and Fair Trading Act 1990
Pt 4 …. 19.93
s 31 …. 19.96
s 43 …. 19.97
Criminal Code Act 1983 …. 3.67
s 189(2) …. 3.33
s 441 …. 3.70
De Facto Relationships Act 1991
s 3A(3) …. 16.17
Defamation Act 2006 …. 22.8
Pt 3 Div 1 …. 23.102
s 2(d) …. 23.102
s 3 …. 23.8
s 5 …. 22.9
s 5(2) …. 22.26
s 6 …. 22.18
s 7 …. 22.48
s 8 …. 22.84
s 9 …. 22.81
s 10 …. 22.21
s 16 …. 23.103
s 19 …. 23.133
s 21(1) …. 23.2
s 21(2) …. 23.49
s 22 …. 23.7
s 23 …. 23.12
s 24(1) …. 23.17
s 24(2)(a) …. 23.21
s 24(2)(b) …. 23.29
s 25(1) …. 23.68
s 26 …. 23.65
s 27 …. 23.48
s 27(1) …. 23.47
s 28 …. 23.91
s 29 …. 22.93, 23.95
s 30 …. 23.97
s 31 …. 23.117
s 32 …. 23.119
s 32(2) …. 23.120
s 33 …. 15.24, 23.114
s 34 …. 15.23, 23.113
s 35 …. 23.137
s 39 …. 23.9
Domestic and Family Violence Act 2007 …. 3.35
Education Act 1979
s 38(2) …. 9.69
Education Act 2015
s 162 …. 6.54
Emergency Medical Operations Act 1973
s 3 …. 6.23, 6.24
Encroachment of Buildings Act 1982 …. 4.70
Interpretation Act 1978
s 19A …. 16.17
Juries Act 1963
s 6A …. 22.62
Law of Property Act 2000
s 115(1) …. 4.8
s 162 …. 25.20
Law Reform (Miscellaneous Provisions) Act 1956
Pt II …. 16.51
s 5(2) …. 22.81
s 6(1)(a) …. 16.56
s 6(1)(c)(i) …. 16.57
s 6(1)(c)(ii) …. 16.54
s 6(1)(c)(iii) …. 16.54
s 6(2) …. 16.55
s 12(2) …. 21.6
s 12(3)(b) …. 21.12
s 12(4) …. 21.16
s 13 …. 21.22
s 15(1) …. 13.6
s 16(1) …. 13.6, 25.59
s 17(2) …. 16.44
s 18 …. 17.9
s 22A …. 21.26
s 32 …. 26.17
Legal Profession Act 2006 …. 9.118
Legislative Assembly (Powers and Privileges) Act 1992
s 4 …. 23.23
s 6 …. 23.23
Limitation Act 1981 …. 14.1
s 4(1) …. 14.31, 14.40, 14.41, 14.42
s 5 …. 14.5
s 11(1)(b) …. 4.71
s 12(1)(b) …. 3.88, 5.102, 14.8, 14.10, 19.62, 25.76
s 12(2)(a) …. 14.5
s 12(2)(b) …. 22.94
s 17 …. 16.48
s 19(1) …. 5.104, 14.12
s 19(2) …. 5.104, 14.12
s 24 …. 14.64
s 36 …. 14.30, 14.35
s 42 …. 19.91
s 42(1) …. 14.48
s 44 …. 14.57, 14.63
s 44A …. 22.94
Magistrates Act 1977
s 19A …. 6.56
Motor Accidents (Compensation) Act 1979 …. 1.47, 9.66, 20.60
s 5 …. 17.12, 17.23, 20.60
s 5(1) …. 17.2
Personal Injuries (Civil Claims) Act 2003
s 8 …. 14.9
s 12 …. 15.37
Personal Injuries (Liabilities and Damages) Act 2003 …. 1.51, 13.53
Pt 4 Div 6 …. 15.37
s 3 …. 13.33
s 4 …. 12.3
s 7 …. 13.102
s 7A …. 13.103
s 8 …. 11.29, 13.100
s 9 …. 9.17
s 10 …. 13.77
s 10(2) …. 13.78
s 14 …. 13.34
s 14(2) …. 13.35
s 15 …. 13.38
s 15(2) …. 13.39
s 16 …. 13.33
s 17 …. 13.40
s 19 …. 15.21
s 20 …. 15.81, 16.45
s 22 …. 15.142
s 23 …. 15.98
s 23(3) …. 15.103
s 23(4) …. 15.103
s 23(5) …. 15.91
s 24 …. 15.108
s 27 …. 15.109, 15.111
s 27(2) …. 15.110
s 29 …. 15.147
s 32 …. 15.37
Police Administration Act 1978
s 119 …. 4.37
s 123 …. 3.66
s 148C …. 20.20
Proportionate Liability Act 2005 …. 21.32
s 3 …. 21.34
s 4(2) …. 21.34
s 6(1) …. 21.35
s 7 …. 21.40
s 13(1)(a) …. 21.41
Return to Work Act 1986 …. 9.54
s 52 …. 15.137, 17.23
s 52(1) …. 1.46
Sale of Goods Act 1954
s 28(2) …. 5.53
Sentencing Act 1995 …. 3.34
Supreme Court Act 1979
s 84 …. 15.144
Supreme Court Rules 1987
O 40.10 …. 23.136
Victims of Crime Assistance Act 2006 …. 1.48
Work Health Act 1986
s 52 …. 17.2, 17.12
Work Health and Safety (National Uniform Legislation) Act 2011 …. 9.49, 9.52
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
QUEENSLAND
Acts Interpretation Act 1954
s 32DA(5) …. 16.17
s 36 …. 16.17
Age of Majority Act 1974 …. 1.21
Anti-Discrimination Act 1991 …. 22.40
Civil Liability Act 2003 …. 1.51, 3.78, 11.29, 11.44, 13.101, 15.102
Ch 2 Pt 2 …. 21.32
Ch 2 Pt 3 Div 2 Subdiv 2 …. 13.103
Ch 2 Pt 3 Div 2 Subdiv 3 …. 13.102
Ch 2 Pt 5 …. 15.28
Ch 3 Pt 4 …. 15.37
s 4 …. 3.78
s 5 …. 12.3
s 7(3) …. 1.30
s 9 …. 11.34
s 9(2) …. 11.49
s 10(a) …. 11.64
s 10(b) …. 11.65
s 10(c) …. 11.66
s 11(1)(a) …. 12.41
s 11(2) …. 12.33, 12.39, 12.41, 12.42
s 11(3) …. 12.55
s 11(4) …. 12.60
s 12 …. 12.54
s 13 …. 11.63, 13.53, 26.33
s 14 …. 13.53, 26.33
s 14(2) …. 13.55
s 15 …. 11.63, 13.87, 26.31
s 16 …. 13.100
s 18 …. 13.67
s 19 …. 13.67
s 20 …. 13.84
s 21 …. 11.73, 13.87
s 21(1) …. 13.94
s 22 …. 11.72, 13.83
s 22(1) …. 11.18, 11.72, 13.82
s 22(2) …. 13.85
s 22(5) …. 13.86
s 23 …. 13.9
s 24 …. 13.26
s 25 …. 11.29
s 26 …. 11.29
s 26(1)(a) …. 11.29
s 27 …. 11.29
s 27(1)(a) …. 11.29
s 28(1)(a) …. 21.34
s 28(3)(b) …. 21.39
s 30(1) …. 21.35
s 31(1) …. 21.41
s 32D …. 21.40
s 32E …. 21.40
s 34 …. 10.133
s 35 …. 10.131
s 35(b) …. 10.138
s 36 …. 18.33
s 37 …. 10.148
s 45 …. 13.77, 13.79
s 45(2) …. 13.78
s 45(3) …. 13.78
s 45(4) …. 13.78
s 46(1)(c) …. 11.33
s 47 …. 13.34
s 47(3) …. 13.35
s 47(4) …. 13.40
s 47(5) …. 13.44
s 48 …. 13.38
s 48(3) …. 13.39
s 48(4) …. 13.40
s 48(5) …. 13.61
s 49 …. 13.38, 13.44
s 49A …. 12.14
s 51 …. 15.108
s 52 …. 15.21
s 52(2)(a) …. 7.8
s 53 …. 15.44
s 54 …. 15.81, 16.45
s 55 …. 15.74
s 56 …. 15.82
s 57 …. 15.142
s 58 …. 17.9, 17.11
s 58(1)(a) …. 16.31
s 59 …. 15.98, 15.100
s 59(1) …. 15.99
s 59(3) …. 15.91
s 59A …. 15.105
s 60 …. 15.147
s 61 …. 15.112
s 61(1)(c) …. 15.112
s 62 …. 15.109
s 65 …. 15.37
s 73 …. 8.26, 11.88, 15.152
Sch 1 …. 11.29
Sch 2 …. 3.78, 11.29, 12.6, 13.33, 20.84
Dictionary …. 13.86
Civil Liability Regulation 2014
s 7 …. 15.112
Sch 1 …. 13.101
Sch 2 …. 13.101
Sch 3 s 2 …. 15.112
Sch 3 s 3 …. 15.113
Sch 3 s 5 …. 15.113
Sch 3 s 7 …. 15.113
Sch 3 s 8 …. 15.114
Sch 3 s 9 …. 15.115
Sch 3 s 10 …. 15.114
Sch 4 …. 15.112, 15.114, 15.115
Sch 8 …. 15.113, 15.114
Civil Proceedings Act 2011 …. 16.5
s 8 …. 25.102
s 58 …. 15.144, 15.145
s 60 …. 15.85
s 61 …. 15.142
s 62 …. 16.16, 16.19
s 62(b) …. 16.18
s 62(d) …. 16.18
s 63 …. 16.17
s 64 …. 16.3, 16.5, 16.13
s 65(1) …. 16.25
s 65(2) …. 16.25
s 67 …. 16.38
s 67(6) …. 16.38
s 67(7) …. 16.17
s 68 …. 16.38
s 70(1) …. 16.42
Coal Mining Safety and Health Act 1999 …. 9.51
Common Law Practice Act 1867
s 72 …. 15.145
Criminal Code 1899 …. 3.37, 3.41, 3.43, 3.44, 3.67, 5.72, 6.35, 6.44
s 5 …. 6.32
s 6 …. 3.43
s 230 …. 25.1
s 245 …. 3.4, 3.19, 3.37, 3.39, 3.40, 3.41, 3.42, 6.5, 6.32
s 260 …. 3.70
s 269 …. 3.44, 6.35
s 271 …. 3.45, 6.32
s 272 …. 3.45
s 273 …. 3.45
ss 274–276 …. 5.72
s 275 …. 3.45
s 277 …. 3.45, 4.50, 6.37
s 278 …. 3.45, 4.50
s 355 …. 3.49
s 359E(1) …. 3.33
s 534 …. 24.75
s 546 …. 3.70
s 647 …. 14.39
Defamation Act 1889 …. 22.5
s 20 …. 23.99
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.20, 22.21
s 11(1) …. 22.20
s 11(2) …. 22.20
s 11(3) …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 21(1) …. 22.62
s 22(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
s 25 …. 23.7
s 26 …. 23.12
s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
s 28(1) …. 23.68
s 29 …. 23.65
s 30(1) …. 23.47
s 31 …. 23.91
s 32 …. 22.93, 23.95
s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Sch 5 …. 23.8
District Court of Queensland Act 1967
s 68(1)(b)(xii) …. 4.65
Domestic and Family Violence Protection Act 2012 …. 3.35
Education (General Provisions) Act 2006
s 9 …. 9.69
Electricity Act 1994
s 137 …. 4.36
s 138 …. 4.36
Factories and Shops Act 1960 …. 18.31
Fair Trading Act 1989
Pt 3 …. 19.93
s 20 …. 19.96
s 95 …. 19.97
Fire and Emergency Services Act 1990
s 53 …. 4.36
Factories and Shops Act 1960 …. 18.31
Forensic Disability Act 2011 …. 14.39
Guardianship and Administration Act 2000 …. 6.18
s 63 …. 6.24
Hospital and Health Boards Act 2013
s 88(2) …. 23.23
Invasion of Privacy Act 1971 …. 6.50
Law Reform Act 1995
Pt 5 …. 13.101
s 5 …. 6.61, 13.6, 16.44
s 6(a) …. 21.6
s 6(b) …. 21.12
s 6(c) …. 21.16
s 7 …. 21.22
s 10(1) …. 13.6, 25.59
s 10(5) …. 16.44
s 13 …. 17.11
s 17 …. 6.19
Legal Profession Act 2007 …. 9.118
Limitation of Actions Act 1974 …. 14.1, 14.36
s 5 …. 16.49
s 5(2) …. 14.31, 14.35, 14.39
s 5(3) …. 14.39
s 7 …. 14.5
s 10(1)(a) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 10AA …. 22.94
s 11 …. 3.88, 14.8, 16.48, 25.76
s 11(1) …. 16.49
s 11(2) …. 14.5, 16.49
s 12(1) …. 5.104, 14.12
s 12(2) …. 5.104, 14.12
s 29 …. 14.30, 14.35
s 30(1)(a) …. 14.58
s 30(1)(b) …. 14.59
s 30(1)(c) …. 14.59
s 30(2) …. 14.59
s 31(2) …. 14.58
s 32A …. 22.94
s 38 …. 19.91
s 38(1) …. 14.47
s 40 …. 14.64
Magistrates Act 1991
s 51 …. 6.56
Mental Health Act 2000 …. 14.39
Motor Accident Insurance Act 1994 …. 9.65
Pt 3 …. 20.60
s 55 …. 15.22
s 56 …. 11.88
Nature Conservation Act 1992 …. 5.17, 10.125
s 142(3) …. 10.125
s 142(7) …. 10.125
Neighbourhood Disputes Resolution Act 2011
Pt 5 …. 25.22
Personal Injuries Proceedings Act 2002 …. 14.9
s 9(3) …. 14.9
s 20C …. 14.36
s 43 …. 14.9
s 56 …. 15.149
Petroleum and Gas (Production and Safety) Act 2004 …. 9.51
Police Powers and Responsibilities Act 2000
s 19 …. 4.37
s 365 …. 3.66
Police Service Administration Act 1990
s 10.5 …. 20.20
Powers of Attorney Act 1998
Ch 3 …. 6.26
Pt 3 …. 6.26
Property Law Act 1974
Pt 11 …. 4.70
s 102(1) …. 4.8
s 178 …. 25.21
s 179 …. 25.20
s 185(1) …. 4.70
s 186(1) …. 4.70
Public Health Act 2005
s 213B …. 6.21
Queensland and Construction Commission Act 1991
s 67AZN …. 10.119
Sch 1B …. 10.119
Residential Tenancies Act 1994
Pt 3 …. 4.6
Sale of Goods Act 1896
s 27(2) …. 5.53
Succession Act 1981
s 15(1) …. 10.100
s 66 …. 16.51
s 66(2) …. 22.81
s 66(2)(b) …. 16.56
s 66(2)(a) …. 16.54
s 66(2)(d)(i) …. 16.57
s 66(2)(d)(ii) …. 16.54
s 66(2A) …. 16.55
s 66(2B) …. 16.55
Supreme Court Act 1995
s 17 …. 16.13
Transplantation and Anatomy Act 1979
s 20 …. 6.23
Transport Operations (Rail Safety) Act 2010 …. 9.51
Transport Operations (Road Use Management) Act 1995
s 80(9B) …. 6.48
Transport Operations (Road Use Management — Road Rules) Regulation 1999
s 70 …. 13.24
Victims of Crime Assistance Act 2009 …. 1.48, 3.34, 3.39
Work Health and Safety Act 2011 …. 9.49, 9.51, 9.52, 18.16
s 17 …. 18.16
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Workers’ Compensation and Rehabilitation Act 2003 …. 9.54
Ch 5 Pt 9 Div 4 …. 15.37
s 207B …. 15.137
s 306B …. 15.22
SOUTH AUSTRALIA
Acts Interpretation Act 1915
s 16 …. 20.22
Age of Majority (Reduction) Act 1971 …. 1.21
s 3 …. 6.19
Building Work Contractors Act 1995
s 32 …. 10.119
Civil Liability Act 1936 …. 1.51
s 3 …. 12.6, 13.33, 15.81, 15.108, 15.142, 16.17
s 18 …. 26.2, 26.24, 26.35
s 18(2) …. 26.32
s 18(6) …. 26.32
s 20 …. 9.17
s 23 …. 16.3
s 24 …. 16.25
s 24(2aa) …. 16.42
s 25 …. 16.48
s 25(1) …. 16.25
s 27(1) …. 16.25
s 28 …. 16.30
s 29 …. 16.30
s 31 …. 11.8
s 31(1) …. 11.18
s 31(2) …. 11.27
s 32 …. 11.34
s 32(2) …. 11.45
s 33 …. 10.59, 10.69, 10.70
s 34 …. 12.33
s 36 …. 11.63, 13.53, 26.31
s 37 …. 13.53, 26.33
s 37(3) …. 13.56
s 38 …. 11.63, 13.87, 26.33
s 39 …. 13.100
s 40 …. 11.20
s 41(1) …. 11.18
s 41(2) …. 13.85
s 41(5) …. 13.91
s 42 …. 10.148, 11.72, 13.82
s 43 …. 13.77
s 43(1) …. 13.78
s 43(2) …. 13.78
s 43(3) …. 13.78
s 44 …. 13.9
s 45 …. 16.44
s 46 …. 13.34
s 46(2) …. 13.35
s 46(3) …. 13.40
s 46(4) …. 13.44
s 47 …. 13.38, 13.45
s 47(2) …. 13.39
s 47(2)(b) …. 13.45
s 47(3) …. 13.40
s 47(5) …. 13.44, 13.45
s 47(6) …. 13.61
s 49 …. 13.29, 13.45
s 51 …. 7.8
s 51(a)(ii) …. 3.78
s 52(1) …. 15.110
s 52(2) …. 15.109
s 53 …. 10.69
s 53(1) …. 10.70
s 53(1)(a) …. 10.70
s 53(2) …. 10.45
s 53(3) …. 10.46
s 54 …. 15.81
s 54(3) …. 16.45
s 55 …. 15.142
s 56 …. 15.147
s 56A …. 15.82
s 57 …. 15.131.
s 58 …. 15.98
s 59 …. 21.26
s 65 …. 16.31, 17.11
s 66 …. 16.27
s 67 …. 12.14
s 68 …. 17.16
s 68(a) …. 17.25
s 74 …. 11.29, 13.100
s 74A …. 13.103
Civil Wrongs Liability Act 1936
s 68(b) …. 17.26
s 68(c) …. 17.26
Community Welfare Act 1972 …. 10.29
Consent to Treatment and Palliative Care Act 1995
s 3 …. 6.19
s 4 …. 6.19
s 6 …. 6.19
s 12 …. 6.19
s 15 …. 9.97
Consent to Medical Treatment and Palliative Care Act 1995
s 8 …. 6.26
s 13 …. 6.23
Constitution Act 1934
s 38 …. 23.23
Criminal Law Consolidation Act 1935
s 19AA(2) …. 3.33
s 271 …. 3.70
Criminal Law (Sentencing) Act 1988 …. 3.34
Crown Proceedings Act 1972
s 10(2) …. 20.22
Crown Proceedings Act 1992 …. 20.22
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 22(1) …. 23.2
s 22(2) …. 23.49
s 23 …. 23.7
s 24 …. 23.12
s 25(1) …. 23.17
s 25(2)(a) …. 23.21
s 25(2)(b) …. 23.29
s 26(1) …. 23.68
s 27 …. 23.65
s 28(1) …. 23.47
s 29 …. 23.91
s 30 …. 22.93, 23.95
s 31 …. 23.97
s 32 …. 23.117
s 33 …. 23.119
s 33(2) …. 23.120
s 34 …. 15.24, 23.114
s 35 …. 15.23, 23.113
s 36 …. 23.137
Development Act 1993 …. 21.30
s 73 …. 14.11
Dog and Cat Management Act 1995
s 66 …. 26.17
s 66(3)(a) …. 26.20
s 66(3)(c) …. 26.23
s 66(4) …. 26.21
Education Act 1972
s 75(2a) …. 9.69
Encroachments Act 1944 …. 4.70
Fair Trading Act 1987
Pt 3 …. 19.93
s 18 …. 19.96
Family Relationships Act 1975
s 11 …. 16.17
s 11A …. 16.17
Guardianship and Administration Act 1993 …. 6.18
Intervention Orders (Prevention of Abuse) Act 2009 …. 3.35
Juries Act 1927
s 5 …. 22.62
Law of Property Act 1936
s 22 …. 25.21
s 24B …. 4.8
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001
Pt 3 …. 21.32
s 3 …. 13.6
s 7 …. 25.59
s 7(1) …. 13.6
s 7(2) …. 13.6
s 7(3)(a) …. 17.9
Legal Practitioners Act 1981 …. 9.118
Limitation of Actions Act 1936 …. 14.1, 14.12
s 3(2) …. 21.34
s 3(2)(b) …. 21.35
s 5(2) …. 21.12
s 5(3) …. 21.12
s 6(1) …. 21.16
s 6(4) …. 14.65
s 6(5) …. 21.22
s 6(7) …. 21.22
s 8(2) …. 21.41
s 12(1) …. 21.6, 21.12
s 12(2)(b) …. 21.12
s 12(3) …. 21.12
s 25 …. 14.49, 19.91
s 35 …. 4.71
s 35(c) …. 3.88, 5.102, 14.10, 19.62, 25.76
s 36 …. 3.88, 14.8, 25.76
s 37 …. 22.94
s 45 …. 14.30, 14.35
s 45(2) …. 14.31, 14.40
s 45A …. 14.37
s 46 …. 14.42
s 47 …. 14.5
s 48 …. 14.57, 14.63
Motor Vehicles Act 1959 …. 9.65
Pt 4 …. 20.60
s 113A …. 15.22
Occupational Health, Safety and Welfare Act 1986 …. 18.14
Police Act 1998
s 65 …. 20.20
Recreational Services (Limitation of Liability) Act 2002
s 5 …. 13.67
Return to Work Act 2014 …. 9.54
s 75 …. 15.137
Sale of Goods Act 1895
s 25(2) …. 5.53
Summary Offences Act 1953
s 72B …. 4.37
s 75 …. 3.66
s 78 …. 3.66
Supreme Court Act 1935
s 30BA …. 15.37
s 30C …. 15.144
Supreme Court Rules
O 78.03 …. 23.136
Survival of Causes of Action Act 1940
s 2 …. 16.51
s 2(2) …. 22.81
s 3(1)(a) …. 16.54
s 3(1)(b) …. 16.56
s 3(1)(d) …. 16.57
s 3(2) …. 16.55
s 3(3) …. 16.55
Victims of Crime Act 2001 …. 1.48
Volunteers Protection Act 2001 …. 13.102
Work Health and Safety Act 2012 …. 9.49, 9.52
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Wrongs Act 1936
s 4 …. 12.3
s 34(1)(b) …. 12.57
s 34(2) …. 12.39
s 34(3) …. 12.55
s 34(4) …. 12.57
s 35 …. 12.54
TASMANIA
Administration and Probate Act 1935
s 27 …. 16.51
s 27(3A) …. 16.55
s 27(3B) …. 16.55
s 27(3)(a) …. 16.56
s 27(3)(c)(i) …. 16.57
s 27(3)(c)(ii) …. 16.54
s 27(3)(c)(iii) …. 16.54
Age of Majority Act 1973 …. 1.21
s 3 …. 6.19
Australian Consumer Law (Tasmania) Act 2010
Pt 2 …. 19.93
s 10 …. 19.96
s 28 …. 19.97
Building Act 2000
s 255 …. 14.11, 14.25
s 256 …. 14.11, 14.25
Civil Liability Act 2002 …. 1.51
Pt 8 …. 10.69
Pt 8A …. 11.29, 13.100
Pt 8B …. 13.103
Pt 9A …. 21.32
Pt 10 …. 13.102
s 3 …. 15.108
s 3A …. 1.30
s 3B …. 7.8, 12.3
s 3B(1)(a) …. 3.78
s 3C …. 20.84
s 5 …. 13.34
s 5(1) …. 13.35
s 5(2) …. 13.40
s 5(4) …. 13.35
s 5(5) …. 13.33
s 5(6) …. 13.33
s 6 …. 13.77
s 6(2) …. 13.78
s 8 …. 15.37
s 9 …. 12.6
s 11 …. 11.34
s 11(2) …. 11.49
s 12(a) …. 11.65
s 12(b) …. 11.66
s 13 …. 12.33
s 13(1)(b) …. 12.57
s 13(2) …. 12.39
s 13(3) …. 12.55
s 13(4) …. 12.57
s 14 …. 12.54
s 15 …. 11.63, 13.53, 26.33
s 16 …. 13.53, 26.33
s 17 …. 11.63, 13.93, 26.31
s 17(2) …. 13.87
s 19 …. 13.67
s 20 …. 13.67
s 21 …. 13.87, 13.94
s 22 …. 11.72, 13.82
s 22(1) …. 11.18
s 22(2) …. 13.85
s 22(5) …. 13.86
s 23 …. 13.9
s 25 …. 15.82
s 26 …. 15.81, 16.45
s 27(1) …. 15.110
s 28 …. 15.111
s 28A …. 15.142
s 28B …. 15.98
s 28B(3) …. 15.103
s 28D …. 16.31, 17.12
s 28E …. 17.16, 17.25, 17.26
s 33 …. 10.45
s 34 …. 10.59
s 35 …. 10.46
s 38 …. 10.131
s 38(b) …. 10.138
s 40 …. 18.33
s 42 …. 10.148
s 43A(1) …. 21.34
s 43A(2) …. 21.35
s 43A(5) …. 21.40
s 43B(1)(a) …. 21.41
Criminal Code 1924 …. 3.67
s 27 …. 3.70
s 141 …. 25.1
s 192(1) …. 3.33
Defamation Act 1957 …. 22.5
s 9(2) …. 23.99
s 18 …. 23.11
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18, 22.18
s 8 …. 22.48
s 9 …. 22.84
s 11 …. 22.21, 22.21
s 17 …. 23.103
s 20 …. 23.133
s 20A …. 22.94
s 21(1) …. 22.62
s 22(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
s 25 …. 23.7
s 26 …. 23.12
s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
s 28(1) …. 23.68
s 29 …. 23.65
s 30(1) …. 23.47
s 31 …. 23.91
s 32 …. 22.93, 23.95
s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Dog Control Act 2000
s 19 …. 26.17
s 19(5)(a) …. 26.23
s 19(5)(b) …. 26.20
Education Act 1994
s 4(1) …. 9.69
s 82A …. 6.54
Fatal Accidents Act 1934 …. 16.45
s 3 …. 16.17
s 4 …. 16.3
s 5 …. 16.25
s 6 …. 16.25
s 8(1) …. 16.25
s 10(1) …. 16.42
Guardianship and Administration Act 1995 …. 6.18
s 40 …. 6.24
Housing Indemnity Act 1992
s 8 …. 10.119
Human Tissue Act 1985
s 21 …. 6.23
Justices Act 1959 …. 3.35
Pt XII …. 6.56
Law of Animals Act 1962
Pt II …. 6.47
s 19 …. 26.35
Legal Profession Act 2007 …. 9.118
Limitation Act 1974 …. 14.1
s 2 …. 14.31, 14.35
s 2(2)(b) …. 14.40
s 4(1)(a) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 5 …. 3.88, 14.43
s 5(1) …. 14.8, 16.48, 25.76
s 5(2) …. 16.48
s 5(3) …. 14.61
s 5A(3) …. 14.19
s 5A(3)(b) …. 14.20
s 5A(5) …. 14.61
s 6(1) …. 5.104, 14.12
s 6(2) …. 5.104, 14.12
s 26 …. 14.30, 14.31
s 26(1) …. 14.35
s 26(7) …. 14.45
s 28 …. 14.31
s 32 …. 19.91
s 32(1) …. 14.47
s 38 …. 14.5
Magistrates Court Act 1991
s 44 …. 6.56
Motor Accidents (Liabilities and
Compensation) Act 1973 …. 1.47, 9.66, 20.60
s 22(3) …. 13.29
s 22(4) …. 13.29
Police Offences Act 1935
s 55 …. 3.66
Police Service Act 2003
s 84 …. 20.20
Relationships Act 2003
ss 4-6 …. 16.17
Sale of Goods Act 1896
s 30(2) …. 5.53
Sentencing Act 1997 …. 3.34
Supreme Court Civil Procedure Act 1932
s 35 …. 15.144
Testators Family Maintenance Act 1912 …. 10.105
Tortfeasors and Contributory Negligence Act 1954
s 3(1) …. 21.12
s 3(2) …. 21.22
Victims of Crime Assistance Act 1976 …. 1.48
Work Health and Safety Act 2012 …. 9.49, 9.52
ss 19–26 …. 9.50
ss 31–33 …. 9.52
s 267 …. 9.52
Workers Rehabilitation and Compensation Act 1988 …. 9.54
s 133 …. 15.137
Wrongs Act 1954
s 2 …. 13.6
s 3(1)(a) …. 21.6
s 3(1)(b) …. 21.12
s 3(1)(c) …. 21.16
s 3(5) …. 14.66
s 4(1) …. 13.6, 13.26, 25.59
s 4(4) …. 16.44
VICTORIA
Accident Compensation Act 1985 …. 9.54
s 134A(7)(c) …. 15.22
s 134AB(22)(c) …. 15.22
s 135A(10)(b) …. 15.97
Administration and Probate Act 1958
s 29 …. 16.51
s 29(2) …. 22.81
s 29(2)(a) …. 16.56
s 29(2)(c)(i) …. 16.57
s 29(2)(c)(ii) …. 16.54
s 29(2)(c)(iii) …. 16.54
s 29(2A) …. 16.55
Age of Majority Act 1977 …. 1.21
s 3 …. 6.19
Australian Consumer Law and Fair Trading Act 2012
Ch 2 …. 19.93
s 12 …. 19.96
s 196 …. 19.97
Building Act 1993 …. 21.30
s 134 …. 14.11
Constitution Act 1975
s 19(1) …. 23.23
Crimes Act 1958
s 21A(1) …. 3.33
s 458 …. 3.66, 3.70
s 459A …. 4.37
s 463B …. 10.144
Crimes (Family Violence) Act 1987 …. 3.35
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 21(1) …. 22.62
s 22(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
s 25 …. 23.7
s 26 …. 23.12
s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
s 28(1) …. 23.68
s 28(4)(d) …. 23.69
s 29 …. 23.65
s 30(1) …. 23.47
s 31 …. 23.91
s 32 …. 22.93, 23.95
s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Domestic Animals Act 1994
s 29(2) …. 26.20, 26.23
s 29(3) …. 26.17
Domestic Building Contracts Act 1995
Pt 2 Div 1 …. 10.119
Education and Training Reform Act 2006
s 1.1.3 …. 9.69
Education and Training Reform Regulations
reg 14 …. 6.54
Factories and Shops Act 1928
s 59(1)(a) …. 18.25
Goods Act 1958
s 31 …. 5.53
Guardianship and Administration Act 1986 …. 6.18, 14.39
s 42A …. 6.24
Human Tissue Act 1982
s 24 …. 6.23
Impounding of Livestock Act 1994
ss 9–11 …. 6.47
Judicial Proceedings Reports Act 1959
s 4 …. 7.27
Legal Profession Act 1958
s 10(2) …. 9.112
Legal Profession Uniform Law Application Act 2014 …. 9.118
Limitation of Actions Act 1958 …. 14.1
Pt IIA, Div 5 …. 14.45
s 3 …. 14.31
s 3(2) …. 14.39
s 3(3) …. 14.39
s 5(1)(a) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76
s 5(1AAA) …. 22.94
s 5(1AA) …. 14.8, 25.76
s 5(1A) …. 14.43
s 6(1) …. 5.104, 14.12
s 6(2) …. 5.104, 14.12
s 23 …. 14.30
s 23(2) …. 14.31
s 23A …. 14.61
s 23B …. 22.94
s 27 …. 14.47, 19.91
s 27B(1)(b) …. 14.20
s 27B(2)(d) …. 14.5
s 27D …. 3.88, 14.19, 14.20
s 27E …. 14.33
s 27F …. 14.19
s 27J …. 14.33
s 27K …. 14.61
s 33 …. 14.5
Limitation of Actions Amendment (Child Abuse) Act 2015 …. 14.45
Magistrates’ Court Act 1989
s 14 …. 6.56
Medical Treatment Act 1988
s 5(1)(c) …. 9.97
s 5A …. 6.26
s 5B(2) …. 6.26
s 6 …. 6.26
Mental Health Act 1986
s 10 …. 10.129, 10.141, 10.144
s 10(1) …. 10.129
Occupational Health and Safety Act 2004 …. 9.49
Property Law Act 1958
s 149(1) …. 4.8
s 195 …. 25.21
Road Management Act 2004
s 102 …. 10.148
Sentencing Act 1991 …. 3.34
Supervision of Workrooms and Factories Act 1873 …. 9.28
Supreme Court Act 1986
s 60 …. 15.144
Supreme Court Rules
O 40 r 10 …. 23.136
Transport Accident Act 1986 …. 1.47, 9.66
Pt 3, Div 2 …. 20.60
s 40 …. 13.44
s 93 …. 17.12, 17.23
s 93A …. 17.2
s 93(7)(c) …. 15.22
s 93(9) …. 16.46
s 93(10)(c) …. 15.97
Victims of Crime Assistance Act 1996 …. 1.48
Victoria Police Act 2013
s 74 …. 20.20
Workers’ Compensation Act 1958
s 65(1) …. 15.137
Workplace Injury Rehabilitation and Compensation Act 2013 …. 9.54
Wrongs Act 1958 …. 1.51, 15.108, 21.37
Pt III …. 16.46
Pt IVAA …. 21.32
Pt VC …. 15.37
Pt VIA …. 11.29
Pt VIB …. 13.103
Pt IX …. 13.102
s 5K …. 13.9
s 14 …. 17.25
s 14B …. 9.17
s 14G …. 13.37
s 14G(1) …. 13.37
s 14G(2)(b) …. 13.77
s 16 …. 16.3
s 17(1) …. 16.25
s 17(2) …. 16.16
s 18 …. 16.25
s 19(1) …. 16.42
s 19(2)–(5) …. 16.38
s 19A …. 16.29
s 20(1) …. 16.25, 16.48
s 23B(1) …. 21.16, 21.21
s 24(2) …. 21.22
s 24(4) …. 14.66
s 24AA …. 21.6
s 24AB …. 21.12
s 24AF(1) …. 21.34
s 24AH(1) …. 21.35
s 24AI(1)(a) …. 21.41
s 24AM …. 21.40
s 25 …. 6.60, 13.6
s 26(1) …. 13.6, 25.59
s 26(4) …. 16.44
s 28A …. 15.85
s 28B …. 15.108
s 28C(2)(a) …. 3.78
s 28D …. 1.30
s 28F …. 15.81, 16.45
s 28G …. 15.109
s 28HA …. 15.111
s 28I …. 15.142
s 28IA …. 15.98
s 28IB …. 15.103
s 28ID …. 15.105
s 28N …. 15.37
s 31B …. 13.100
s 33 …. 26.35
s 43 …. 12.6
s 45 …. 12.3
s 48 …. 11.34
s 48(2) …. 11.49
s 48(3) …. 11.45
s 49(a) …. 11.64
s 49(b) …. 11.65
s 49(c) …. 11.66
s 51 …. 12.33
s 51(1)(b) …. 12.57
s 51(2) …. 12.39
s 51(3) …. 12.55
s 51(4) …. 12.57
s 52 …. 12.54
s 53 …. 13.53, 26.33
s 54 …. 13.53, 26.33
s 55 …. 13.100
s 57 …. 13.84
s 58 …. 11.20
s 59 …. 11.72, 13.82
s 59(1) …. 11.18
s 59(2) …. 13.85
s 60 …. 13.86
s 61 …. 20.84
s 63 …. 13.26
s 73 …. 10.69
s 74 …. 10.69
s 75 …. 10.45, 10.46
s 78 …. 10.59
s 83 …. 10.131
s 84 …. 18.33
WESTERN AUSTRALIA
Age of Majority Act 1972 …. 1.21
Civil Liability Act 2002 …. 1.51
Pt 1B …. 10.69
Pt 1D …. 11.29, 13.100
Pt 1F …. 21.32
Pt 2 Div 4 …. 15.37
s 3 …. 12.6
s 3A …. 7.8, 12.3
s 3B(1) …. 3.78
s 5 …. 6.19
s 5AAC …. 11.29
s 5AAC(2) …. 11.29
s 5AAD …. 11.29
s 5AI …. 21.35
s 5AI(1) …. 21.34
s 5AJA …. 21.40
s 5AK(1)(a) …. 21.41
s 5B …. 11.34
s 5B(2) …. 11.49
s 5C …. 12.33
s 5C(1)(b) …. 12.57
s 5C(2) …. 12.39
s 5C(3) …. 12.55
s 5C(4) …. 12.57
s 5D …. 12.54
s 5E …. 13.67
s 5F …. 13.53, 26.33
s 5H …. 13.67
s 5K …. 13.9
s 5L …. 13.34
s 5L(4) …. 13.33
s 5M …. 11.63
s 5N …. 13.53, 26.33
s 5O …. 11.63, 13.93, 26.31
s 5O(2) …. 13.87
s 5P …. 13.100
s 5PA …. 13.90
s 5PB …. 11.72, 13.89
s 5PB(1) …. 13.96
s 5PB(2) …. 13.96
s 5S …. 10.59
s 5S(1) …. 10.45
s 5T …. 10.46
s 5W …. 10.131
s 5W(b) …. 10.138
s 5X …. 18.33
s 6 …. 12.3
s 9(1) …. 15.110
s 9(4) …. 15.108
s 10 …. 15.109
s 10A …. 15.111
s 11 …. 15.81
s 11(1) …. 16.45
s 12 …. 15.98
s 12(5) …. 15.103
s 52 …. 10.148
s 54(2) …. 13.35
s 58 …. 1.30
Criminal Code …. 3.67
s 8(2) …. 13.75
s 246 …. 6.35, 6.36
s 248 …. 6.32
s 250 …. 6.34
s 254 …. 6.37
s 273 …. 6.34
s 313 …. 6.36
s 338E(1) …. 3.33
s 371A …. 13.75
Criminal Injuries Compensation Act 2003 …. 1.48
Criminal Investigation Act 2006
s 25 …. 3.70
s 33 …. 4.37
s 128 …. 3.66
Defamation Act 2005 …. 22.8
Pt 3 Div 1 …. 23.102
s 3(d) …. 23.102
s 4 …. 23.8
s 6 …. 22.9
s 6(2) …. 22.26
s 7 …. 22.18
s 8 …. 22.48
s 9 …. 22.84
s 10 …. 22.81
s 11 …. 22.21
s 17 …. 23.103
s 20 …. 23.133
s 21(1) …. 22.62
s 22(2) …. 22.62
s 22(3) …. 23.140
s 24(1) …. 23.2
s 24(2) …. 23.49
s 25 …. 23.7
s 26 …. 23.12
s 27(1) …. 23.17
s 27(2)(a) …. 23.21
s 27(2)(b) …. 23.29
s 28(1) …. 23.68
s 29 …. 23.65
s 30(1) …. 23.47
s 31 …. 23.91
s 32 …. 22.93, 23.95
s 32(3)(f)(ii) …. 22.93
s 33 …. 23.97
s 34 …. 23.117
s 35 …. 23.119
s 35(2) …. 23.120
s 36 …. 15.24, 23.114
s 37 …. 15.23, 23.113
s 38 …. 23.137
s 42 …. 23.9
Dog Act 1976
s 3(1) …. 26.20, 26.23
s 33D …. 26.20, 26.23
s 46 …. 26.17
s 46(2) …. 26.21
s 46(3) …. 26.17
Equal Opportunity Act 1984 …. 22.40
Evidence Act 1906
s 49 …. 17.25
Fair Trading Act 2010
Pt 3 …. 19.93
s 11 …. 19.96
s 110 …. 19.97
Fatal Accidents Act 1959 …. 16.45
s 3 …. 16.16
s 3(1) …. 16.18
s 4 …. 16.3
s 5(2) …. 16.42
s 6(1) …. 16.17
s 6(1B) …. 16.25
s 7 …. 16.25
s 9(1) …. 16.25
Sch 2 …. 16.16
Sch 2 cl 1 …. 16.19
Sch 2 cl 1(d) …. 16.18
Sch 2 cl 1(e) …. 16.18
Sch 2 cl 1(h) …. 16.17
Guardianship and Administration Act 1990 …. 6.18
Pt 9B …. 6.26
s 110P …. 6.26
s 110ZH …. 6.24
Highways (Liability for Straying Animals) Act 1983
s 3(1) …. 26.35
s 3(3) …. 26.2, 26.24
s 3(4) …. 26.32
Human Tissue and Transplant Act 1982
s 21 …. 6.23
Interpretation Act 1984
s 13A(3) …. 16.17
Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
s 3A …. 13.6
s 4(1) …. 13.6, 13.21, 13.41, 25.59
s 4(2)(a) …. 16.44
s 4(2)(d) …. 16.54
s 4(2)(e) …. 16.54
s 7 …. 21.6
s 7(1)(b) …. 21.12
s 7(1)(c) …. 21.16
s 7(2) …. 21.22
Law Reform (Miscellaneous Provisions) Act
s 3 …. 17.12
s 4 …. 16.51
s 4(2) …. 22.81
s 4(2)(a) …. 16.56
s 4(2)(c) …. 16.57
s 4(2a) …. 16.55
s 5 …. 15.142
Legal Profession Act 2008 …. 9.118
Limitation Act 1935 …. 14.4
s 13(1) …. 19.62
s 27 …. 14.49
s 37 …. 19.91
s 49 …. 14.5
Limitation Act 2005 …. 14.1, 14.4, 14.50
s 3(1) …. 14.40
s 6 …. 14.19
s 9 …. 5.102, 14.5
s 12 …. 4.71
s 13(1) …. 3.88, 14.10, 25.76
s 13(2) …. 16.48
s 14(1) …. 3.88, 14.8
s 15 …. 22.94
s 17 …. 14.67
ss 29–32 …. 14.31
s 30 …. 14.34
s 31 …. 14.34
s 32 …. 14.34
s 33 …. 14.45
ss 35–36 …. 14.31
s 38 …. 14.50
s 39(3) …. 14.62
s 39(4) …. 14.62
s 40 …. 22.94
s 59 …. 5.104
s 55 …. 14.19
s 60 …. 14.12
Local Government (Miscellaneous Provisions) Act 1960
s 401 …. 10.130
Magistrates Court Act 2004
s 37 …. 6.56
Motor Vehicle (Third Party Insurance) Act
1943 …. 9.65, 20.60
Occupational Safety and Health Act 1984 …. 9.49
Occupiers Liability Act 1985
s 5 …. 9.17
Parliamentary Privileges Act 1891
s 1 …. 23.23
Police Act 1892
s 137 …. 20.20
Property Law Act 1969 …. 4.70
s 74(1) …. 4.8
s 121 …. 25.21
Restraining Orders Act 1997 …. 3.35
Sale of Goods Act 1895
s 25(2) …. 5.53
School Education Act 1999
s 6 …. 9.69
School Education Regulations 2000
reg 40(2) …. 6.54
Sentencing Act 1995 …. 3.34
Strata Titles Act 1985
s 35(1)(c) …. 18.28
Supreme Court Act 1935
s 32 …. 15.144
s 32(2) …. 15.148
Supreme Court Rules
O 34 r 6 …. 23.136
Volunteers and Food and Other Donors (Protection from Liability) Act 2002
Pt 2 …. 13.102
Pt 3 …. 13.103
Workers’ Compensation and Injury Management Act 1981 …. 9.54
s 92 …. 15.137
UNITED KINGDOM
Animals Act 1971 …. 26.36
s 8 …. 26.35
Common Law Procedure Act 1852 …. 2.10
Contagious Diseases (Animals) Act 1869
s 75 …. 18.24
Dog Nuisance Act 1830 …. 26.16
Factories Act 1937
s 22(1) …. 18.29
Factories Amendment Act 1844 …. 9.28, 9.48
Factory Regulation Act 1833 …. 9.48
Fatal Accidents Act 1848 …. 16.3
Health and Morals of Apprentices Act 1802 …. 9.48
Human Rights Act 1998 …. 7.31
Limitation Act 1939 …. 14.17
s 26 …. 14.17
Lord Campbell’s Act see Fatal Accidents Act 1848 …. 16.29
National Insurance (Industrial Injuries) Act 1946 …. 9.53
Prescription Act 1832
s 3 …. 25.21
Protection from Harassment Act 1997 …. 18.23
Torts (Interference with Goods) Act 1977 …. 5.56
Waterworks Clauses Act 1847
s 35 …. 18.26
Workmen’s Compensation Act 1897 …. 1.46, 9.28, 9.53
Contents
Detailed Contents
Preface
Table of Cases
Table of Statutes
Chapter 1
An Introduction to Torts
Chapter 2
The Distinction Between Trespass and Case
Chapter 3
Trespass to Person
Chapter 4
Trespass to Land
Chapter 5
Trespass to Personal Property
Chapter 6
Defences to Trespass
Chapter 7
Intentional Damage to a Person
Chapter 8
The Negligence Action
Chapter 9
Established Duties of Care
Chapter 10
Novel Duties of Care
Chapter 11
Standard of Care and Breach
Chapter 12
Damage — Causation and Scope
Chapter 13
Defences to Negligence
Chapter 14
Limitation of Actions
Chapter 15
Judicial Remedies
Chapter 16
Wrongful Death
Chapter 17
Service and Family Relations
Chapter 18
Public and Statutory Duties
Chapter 19
Misrepresentation in Torts — Negligence and Deceit
Chapter 20
Vicarious Liability and Non-Delegable Duties
Chapter 21
Multiple Tortfeasors
Chapter 22
Defamation
Chapter 23
Defences and Remedies in Defamation
Chapter 24
Interference with Business Interests
Chapter 25
Nuisance
Chapter 26
Liability for Animals
Index
Detailed Contents
Contents
Preface
Table of Cases
Table of Statutes
Chapter 1
An Introduction to Torts
1 Introduction
2 What is a Tort?
Act or Omission
Infringement of Rights
Action for Damages
3
Parties — Capacity to Sue and be Sued
Minors
Intellectually Disabled Persons
4
Comparison with Other Areas of the Law
Contract and Torts
Crimes and Torts
5
The Evolution of Torts Law
The Impact of Statute
The Impact of Insurance
The High Court
Further Reading
Chapter 2
The Distinction Between Trespass and Case
1 Introduction
2 Trespass
Direct Interference
Fault of the Defendant
Actionable Per Se
Onus of Proof
3
4
5
Action on the Case
Criticisms of the Australian Position
Innominate Actions on the Case
Further Reading
Chapter 3
Trespass to Person
1 Introduction
2 Battery
Direct Application of Force
Offensive Contact
Lack of Consent
Knowledge of the Contact
Fault
3
Assault
Threat
Ability to Carry Out the Threat
Fault
Stalking and Domestic Violence
4
Queensland Position on Common Law Assault and Battery
Definition of Assault
Differences Between the Common Law and s 245
5
False Imprisonment
Direct Interference
Restraint in All Directions
Fault
Lawful Justification
6
Remedies
Nominal Damages
Compensatory Damages
Aggravated and Exemplary Damages
Injunction and Other Orders
7
Limitation Period
Further Reading
Chapter 4
Trespass to Land
1 Introduction
2 Title to Sue
Tenants and Lessors
Licensees
Co-owners
Easements and Profits à Prendre
Purchasers Under a Contract of Sale
3
Actionable Interference
Direct Interference
Interference with Land
Unauthorised Interference
4
Fault
5
Examples of Actionable Interferences
Placing or Leaving Objects on Land
Animals
Transient Interferences with Airspace
Continuing Trespass
6
Remedies
Self-help
Damages
Injunction
Mesne Profits
Statutory Relief
7
Limitation Period
Further Reading
Chapter 5
Trespass to Personal Property
1 Introduction
2 Trespass to Chattels
Title to Sue
Direct Interference
Fault
Actionable Without Proof of Damage
3
Conversion
Title to Sue
Repugnant Dealing
Fault
4
Detinue
Title to Sue
Detention of Goods
Fault
5
6
Innominate Tort by Reversionary Owners
Remedies
Self-help
Damages
Injunction
7
Limitation Period
Further Reading
Chapter 6
Defences to Trespass
1 Introduction
2 Inevitable Accident
3 Consent
Scope of the Consent
Voluntary
Capacity to Consent
Consent to Medical Treatment
Revocation or Withdrawal of Consent
4
5
6
7
8
9
Self-Defence
Defence of Another
Provocation (Queensland)
Defence of Property
Self-Help
Necessity
Imminent Threat
Reasonable Necessity
Imminent Threat Not Due to Defendant’s Negligence
Medical Necessity
10 Defences Specific to Trespass to Personal Property
Jus Tertii
Loss of Possession
Distress Damage Feasant
11
12
13
14
15
16
17
Statutory Authority
Disciplinary Powers
Judicial Acts
Execution of Process
Crown Authority
Contributory Negligence
Mistake, Insanity and Involuntarism
Mistake
Insanity and Involuntarism
18 Ex Turpi Causa Oritur Non Actio
Further Reading
Chapter 7
Intentional Damage to a Person
1 Introduction
2 Intentional Infliction of Psychiatric Injury
3 Malicious Prosecution
Proceedings Initiated Against the Plaintiff by the Defendant
Proceedings Terminated in Favour of Plaintiff
Malice
Absence of Reasonable and Probable Cause
Damage
Remedy
4
Privacy
Development of a Tort of Privacy under the Common Law
Law Reform
Other Jurisdictions
Further Reading
Chapter 8
The Negligence Action
1 Introduction
2 The Structure of a Negligence Action
Reasonable Foreseeability
3
Overview of the Elements of the Negligence Action
Duty of Care
Breach of Duty
Damage
4
Questions of Law and Fact
Further Reading
Chapter 9
Established Duties of Care
1 Introduction
Scope of the Duty of Care
Established Duties of Care
2
Occupiers of Premises
Scope of the Duty
3
Employers
Scope of the Duty
Legislation
4
Road Users
Scope of the Duty
Legislation
5
Persons in Control of Others
School Authorities and Students
School Authorities and Third Parties
Parent and Child
Parent and Third Party
Prison Authorities and Prisoners
Prison Authorities and Third Parties
6
Professionals
Medical Professionals
Legal Professionals
7
Manufacturers of Goods
Scope of the Duty
Legislation
Further Reading
Chapter 10 Novel Duties of Care
1 Introduction
2 Historical Summary
Reasonable Foreseeability
The Anns Approach
The Proximity Approach
The Caparo Approach
The Incremental Approach
The Salient Features Approach
3
The Current Approach of the High Court
Sullivan v Moody
Reasonable Foreseeability
Legal Principle v Legal Policy
Legal Policy v Public Policy
4
5
Scope of the Duty
Pure Psychiatric Injury
Recognised Psychiatric Injury
Reasonable Foreseeability
Relevant Factors
Pure Psychiatric Injury in an Established Duty
6
Pure Economic Loss
Relational Loss
Negligent Provision of Services
Defective Buildings
7
Liability of Public Authorities
Statutory Power
Relevant Factors
Road Authorities
Further Reading
Chapter 11 Standard of Care and Breach
1 Introduction
2 Standard of Care
Objective Test
3
Breach of Standard
Foreseeable and Not Insignificant Risk
Reasonable Response to the Risk
Balancing the Factors
4
Procedure and Proof
Functions of Judge and Jury
Appeals
Onus and Standard of Proof
Res Ipsa Loquitur (The Thing Itself Speaks)
Further Reading
Chapter 12 Damage — Causation and Scope
1 Introduction
2 Recognised Kind of Damage
Damage Not Recognised at Law
3
Factual Causation
Common Law Tests
Civil Liability Legislation
Multiple Tortfeasors
Onus of Proof
4
Scope of Liability
Remoteness of Damage
Intervening Acts
Legally Significant Cause
Further Reading
Chapter 13 Defences to Negligence
1 Introduction
2 Contributory Negligence
The Common Law Position
Modern Contributory Negligence
Establishing Contributory Negligence
Apportionment
Legislative Presumptions of Contributory Negligence
Appeals
3
Volenti Non Fit Injuria (No Injury is Done to One Who Voluntarily
Consents)
Full Knowledge of Risk
Voluntary Acceptance of Risk
4
Illegality
Joint Illegal Enterprise
Plaintiff’s Illegal Activity
5
Immunity from Civil Liability
Provision of a Professional Service
Obvious Risks
Inherent Risks
Rescue Cases
Volunteers
6
Exclusion of Liability Clauses
Further Reading
Chapter 14 Limitation of Actions
1 Introduction
2 The Limitation Period
Personal Injury
Property Damage and Economic Loss
3
Accrual: Commencement of the Period
Personal Injury
Property Damage
Economic Loss
4
Suspension and Extension of the Limitation Period
Suspension of Time
Extension of Time
5
Contribution Between Tortfeasors
Further Reading
Chapter 15 Judicial Remedies
1 Introduction
2 The Equitable Remedies
Declaration
Account
Injunction
3
Damages at Common Law
The Categories of Damages
4
Principles of Assessment of Compensatory Damages
Egg-shell Skull Rule
The Indemnity Principle
Once and for All Rule
Lump Sum Rule
Duty to Mitigate
5
Property Damage
Cost of Repair and Diminished Value
Replacement Costs
Consequential Losses
6
Damages for Personal Injuries
Compensatory Damages
Hospital and Medical Expenses
Loss of Earning Capacity
Gratuitous Services
Gratuitous Domestic Services
Non-Pecuniary General Damages
Other Expenses
Achieving the Indemnity Principle
The Award
Further Reading
Chapter 16 Wrongful Death
1 Introduction
2 Compensation to Relatives
Right of Action
Causation
Dependants
Executor Brings the Action
Damages that May be Claimed for Wrongful Death
Assessment of Damages for Wrongful Death
Interest
Limitation Period
3
Survival of Causes of Action
Damages
Limitation Period
Further Reading
Chapter 17 Service and Family Relations
1 Introduction
2 Loss of an Employee’s Services
Damages
3
Interference with Domestic Relations Between Husband and Wife
Loss of Consortium and Servitium
Seduction, Enticement and Harbouring
Damages
4
Interference with Domestic Relations Between Parent and Child
Loss of Services
Seduction, Enticement and Harbouring
Further Reading
Chapter 18 Public and Statutory Duties
1 Introduction
2 Breach of Statutory Duty
A Private Cause of Action
The Duty was Imposed on the Defendant
The Statute was Intended to Prevent that Kind of Harm
The Plaintiff was a Person for Whose Protection the Statute was
Passed
Breach of the Duty
Causation
Defences
3
Abuse of Process
Improper Motive
Damage
Defences
4
Misfeasance in Public Office
Invalid or Unauthorised Act Committed with Malice
Public Officer in Purported Discharge of Duty
Damage
Further Reading
Chapter 19 Misrepresentation in Torts — Negligence and Deceit
1 Introduction
2 Actionable Misrepresentations
3 Negligent Misrepresentation
Historical Background
Duty of Care
Scope of the Duty of Care
Breach and Damage
Contributory Negligence
Remedies
Limitation Period
4
Deceit (Fraudulent Misrepresentation)
Misrepresentation of Fact
Scienter (Knowledge of Falsity)
Intended Reliance
Reliance
Damage
Remedies
Limitation Period
5
Statutory Actions for Misrepresentation
Person or Corporation
Trade or Commerce
Misleading or Deceptive Conduct
Disclaimers
Remedies
Limitation Period
Further Reading
Chapter 20 Vicarious Liability and Non-Delegable Duties
1 Introduction
2 Vicarious Liability
Employer and Employee
Course of Employment
Principal and Agent
3
Non-Delegable Duties
Employers
Schools
Hospitals
Occupiers of Premises
Characteristics of a Non-Delegable Duty
Scope and Breach of Duty
Legislation
4
Indemnities
Further Reading
Chapter 21 Multiple Tortfeasors
1 Introduction
2 Joint Tortfeasors
The Legislation
3
4
Several Tortfeasors
Concurrent Tortfeasors
Contribution by Concurrent Tortfeasors
Assessment of Contribution
Indemnity and the Rule in Lister v Romford Ice
5
Proportionate Liability
Apportionable Claim
Concurrent Wrongdoer
Exclusions
Apportioning Liability
Further Reading
Chapter 22 Defamation
1 Introduction
2 History of Defamation Law in Australia
National Defamation Law
3
Description of Defamation
Common Law
Defamation Acts
4
5
Jurisdiction
Elements of Defamation
Defamatory Matter
Defamatory on the Facts
Reference to the Plaintiff
Publication
Parties to the Action
Limitation Period
6
Australian Consumer Law
Defamation
Further Reading
Chapter 23 Defences and Remedies in Defamation
1 Introduction
2 Defences
Justification (Truth)
Contextual Truth
Absolute Privilege
Qualified Privilege
Protected Reports
Implied Constitutional Protection
Fair Comment/Honest Opinion
Innocent Dissemination
Triviality
Consent
Acceptance of Offer to Make Amends
3
Remedies
Injunction
Damages
Further Reading
Chapter 24 Interference with Business Interests
1 Introduction
2 Passing Off
Reputation
False Representation Calculated to Deceive Representation
Damage
Examples of Passing Off
Defences
Remedies
Legislation
3
Interference with Contractual Relations
Contract
Knowledge of the Contract
Intention
Interference
Breach of Contract
Damage
Defences
Remedies
4
Conspiracy
Agreement
Intention
Damage
Defences
Remedies
5
Intimidation
Threat of an Unlawful Act
Compliance
Intention
Damage
Defences
Remedies
6
Injurious Falsehood
False Statement
Publication
Malice
Damage
Remedies
Australian Consumer Law
Comparison with Defamation
Further Reading
Chapter 25 Nuisance
1 Introduction
2 Private Nuisance
Title to Sue
Who Can be Sued
Rights Capable of Protection
Interference with the Protected Right
Interference with Enjoyment
Damage
Onus of Proof
Defences
Remedies
Limitation Period
3
Public Nuisance
Title to Sue
Who Can be Sued?
Interference with a Public Right
Substantial and Unreasonable Interference
Onus of Proof
Defences
Remedies
4
A Comparison of Nuisance and Negligence
Historical Development
The Interests Protected and the Right to Sue
The Class of Wrongdoers
Basis of Liability
Onus of Proof
Damage
Defences
Remedies
Further Reading
Chapter 26 Liability for Animals
1 Introduction
2 Strict Liability
Scienter
Strict Liability for Dogs
Cattle Trespass
3
Fault
Trespass
Negligence
Rule in Searle v Wallbank
Nuisance
Further Reading
Index
[page 1]
Chapter 1
An Introduction to Torts
1
Introduction
1.1 The slow evolution of Australian torts law from its beginnings in 12th
and 13th century feudal England, and its changing concerns in terms of its
aims, has resulted in there being no generally accepted definition of a ‘tort’.
The most that can be said is that the law of torts is a collection of civil wrongs
(torts) for which the common law will provide a remedy, usually in the form
of an award of monetary compensation (damages). The word ‘tort’, meaning
‘wrong’, comes from the Latin word tortus, meaning crooked or twisted.
1.2 The wrongs which are the subject of individual tort actions are the acts
or omissions which infringe one or more of a range of rights recognised by
the common law including:
rights of personal safety and integrity (for example, the torts of assault,
battery, false imprisonment and negligence);
rights associated with the possession and ownership of land (for
example, the torts of trespass to land, nuisance and negligence) and of
personal property (for example, the torts of trespass to chattels,
conversion and negligence);
rights associated with economic and commercial interests (for
example, the torts of passing off, conspiracy, deceit and negligence);
and
personal reputation (for example, the tort of defamation).
2
What is a Tort?
1.3 Each tort action has its own legal requirements or elements with
consequent differences in defences and remedies, and many of these tort
actions will be discussed in the coming chapters. Generally, however, all torts
have the following key features in common, constituting:1
an act or omission;
the infringement of a legally recognised right; and
an action for damages.
[page 2]
Act or Omission
1.4 At common law, there is an important distinction between acts causing
harm (misfeasance) and omissions or failures to act resulting in harm
(nonfeasance). Traditionally, the common law provides that a person is under
no legal obligation to provide assistance to a person endangered from a
source unconnected with that person. Therefore, under existing law, a good
swimmer may be under no duty to help someone in danger of drowning:
Quinn v Hill [1957] VR 439. Neither is a doctor under a legal duty to assist
strangers; but see Lowns v Woods (1996) Aust Torts Reports ¶81-376. See also
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council
(2001) 206 CLR 512; 180 ALR 145 at [86]–[90] Gaudron, McHugh and
Gummow JJ.
1.5 In regard to misfeasance, or positive actions causing harm, the act must
have been voluntary in the sense that the tortfeasor (the wrongdoer who
committed the tort) knowingly committed the act, but it is not usually
necessary that the tortfeasor knew that harm would result from the act:
Consolidated Company v Curtis & Son [1892] 1 QB 495. In this case, the
defendant auctioneers innocently sold and delivered goods to a third party.
They knowingly sold the goods, but did not intend to deprive the plaintiff
owner of title to the goods because they were unaware of his status as the true
owner and believed the person who delivered the goods for sale to be the
owner. They were, nevertheless, liable for the tort of conversion.
1.6 Another term that is used when considering acts or omissions is fault.
Fault may consist of intentionally or negligently doing the act that caused the
harm. Some torts, such as misfeasance in public office, require that the
defendant intended to harm the plaintiff: Northern Territory v Mengel (1995)
185 CLR 307. For other torts, it is sufficient that the defendant was negligent
in doing the act that caused the harm: L Shaddock & Associates Pty Ltd v
Parramatta City Council (1981) 150 CLR 225. Negligence has been defined in
the most general sense by B Alderson in Blyth v Birmingham Waterworks Co
(1856) 11 Ex 781 at 784 as:
… the omission to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do, or doing something which a
reasonable and prudent man would not do.
1.7 Finally, and exceptionally, some torts impose liability in the absence of
both negligence and intention. These are torts imposing strict liability for the
harm caused: Rylands v Fletcher (1868) LR 3 HL 330. See also Transco plc v
Stockport Metropolitan Borough Council [2003] 3 WLR 1467.
1.8 Generally, motive (the tortfeasor’s reason for acting) is not relevant to
liability and will not normally convert a lawful act motivated by ill will into an
unlawful one. Exceptionally, motive may be a justification for an act that is
otherwise tortious, as where in an emergency it becomes necessary to commit
what would otherwise be a trespass in order to preserve life or property:
Proudman v Allen [1954] SASR 336. Motive may be relevant to the type and
assessment of damages: Bradford Corporation v Pickles [1895] AC 587; Mogul
Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25.
[page 3]
1.9 Malice, meaning ‘dishonest or improper motive’, is also generally
irrelevant to liability except in those few torts where malice is one of the
elements of the cause of action, as it is in the torts of malicious prosecution (A
v New South Wales (2007) 230 CLR 500; 233 ALR 584; Commonwealth Life
Assurance Society Ltd v Brain (1935) 53 CLR 343) and conspiracy:
Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392. Malice in a
defendant may also negative some defences, for example in defamation, and
may be relevant to the type and assessment of damages.
Infringement of Rights
1.10 Since not all forms of harm are compensable in the law of torts,2 the
second key feature of a torts action is that the defendant’s act or omission has
infringed a legally recognised right of the plaintiff. This will be particularly
important where the action involves pure financial loss rather than, for
example, an interference with more traditional rights, such as those
associated with land and personal safety. As Gummow J commented in the
pure economic loss case of Perre v Apand Pty Ltd (1999) 198 CLR 180; 164
ALR 606 at [192], the first issue is to identify the interests or rights which the
plaintiff claims have been infringed. Unless the plaintiff can establish that
there has been an interference or infringement with a legally recognised right,
the plaintiff will have no cause of action in torts law: see, for example, Sullivan
v Moody (2001) 207 CLR 562; 183 ALR 404; Harriton v Stephens (2006) 226
CLR 52; 226 ALR 391.
1.11 In Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937)
58 CLR 479, for example, the Australian High Court held that the owners of a
racecourse had no cause of action against the defendant who broadcast
commentaries from a platform on adjoining land, because there is no legal
right not to be overlooked. Similarly, there is no legal right to uninterrupted
television reception: Hunter v Canary Wharf Ltd [1996] 2 WLR 348; [1996] 1
All ER 482. In Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391, by a 6:1
majority decision, the High Court denied that a person has (or had) a right to
have their mother’s pregnancy terminated because of the likelihood of their
being born catastrophically disabled. See also Waller v James; Waller v
Hoolahan (2006) 226 CLR 136; 226 ALR 457.
1.12 However, the common law is constantly evolving and it is possible for
new rights to be recognised by the courts. For example, while previously the
law recognised no right of privacy (Victoria Park Racing & Recreation
Grounds Co Ltd v Taylor (1937) 58 CLR 479), more recently the High Court
has acknowledged that there is growing support for the recognition of a right
of privacy: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
(2001) 208 CLR 199; 185 ALR 1.3 Other possible rights which might, in the
future, be recognised by the common law as being appropriate for protection
by torts law are those relating to the right to be free from sexual harassment:
see, for example, Khorasandjian v Bush [1993] QB 727; Deasy Investments Pty
Ltd v Monrest Pty Ltd [1996] QCA 996;
[page 4]
Hunter v Canary Wharf Ltd [1996] 2 WLR 348; [1996] 1 All ER 482. Torts
actions relating to protection from workplace harassment and sexual,
religious, racial or other forms of discrimination have also been suggested as
possibilities for the future.4
1.13
Rights recognised by the common law can be divided into two types:
absolute rights — any interference with which gives rise to an action in
tort, that is, the right is actionable per se (plaintiff need not suffer
damage from the interference); and
qualified rights — interference with which only gives rise to an action
in tort when that interference has caused a recognisable form of harm
to the plaintiff.
1.14 The trespass to land action, for example, protects the absolute rights
associated with the possession of land and any direct interference with those
rights will give rise to a trespass action: Plenty v Dillon (1991) 171 CLR 635. In
contrast, where there is an indirect interference with a person’s possession of
land, then the protection given by the nuisance and negligence actions, for
example, is qualified by the need for the plaintiff to suffer a legally recognised
form of damage — ‘the gist of the action’ — as a result of the indirect
interference: Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182.
1.15 The significance of the need to prove a legally recognised form of
harm in actions involving infringement of a qualified right, such as in a
negligence action, has been reaffirmed by the decision of the Australian High
Court in CSR Ltd v Della Maddalena (2006) 224 ALR 1; 80 ALJR 458. In that
case, the court indicated that the common law recognises no right to be
compensated for suffering from the fear of developing an occupational
disease such as mesothelioma, unless such fear amounts to a diagnosable
psychiatric illness. See also the English Court of Appeal decision in Rothwell v
Chemical & Insulating Co Ltd [2006] 4 All ER 1161.
Action for Damages
1.16 Damages are a monetary sum awarded to the plaintiff by a court to
compensate, so far as money is able, for the infringement of a legally
recognised right. The key importance of this feature of a torts action was
confirmed by Crennan J in Harriton v Stephens (2006) 226 CLR 52; 226 ALR
391 at [264], where her Honour said:
Providing compensation if liability is established is the main function of tort law; compensation
is “[t]he one principle that is absolutely firm, and which must control all else;” if the principle
cannot be applied the damage claimed cannot be actionable. [footnote omitted]
1.17 As will be discussed further in Chapter 15, there are different kinds of
damages:
nominal damages;
contemptuous damages;
compensatory damages;
aggravated damages; and
exemplary or punitive damages.
[page 5]
1.18
The right to damages for personal injury has been affected by
legislation, either by placing limitations on the damages that may be
recovered, or limiting the right to take a common law action when a no-fault
compensation scheme exists: see 1.45.
1.19 The fact that a tort will ground an action for damages at common law,
however, does not exclude other remedies in appropriate cases. For example,
the equitable remedies of injunction, declaration and account may also be
available in regard to certain torts. An injunction is available, for example, to
prevent interferences to the possession and enjoyment of land and also to
prevent the publication of defamatory material, where damages may not be
an adequate remedy: Bankstown City Council v Alamdo Holdings Pty Ltd
(2005) 223 CLR 660: see Chapter 15.
3
Parties — Capacity to Sue and be Sued
1.20 The basic rule is that any person who is of sound mind and at least 18
years old may sue and/or be sued in relation to tortious acts and omissions.
Special rules apply, or have in the past applied, to various special categories of
persons, including the Crown, the judiciary, married women, partnerships,
corporations, trade unions, assignees and bankrupts.5 In this section, minors
and intellectually disabled persons are considered.
Minors
1.21 Minors are persons under the age of 18 years: see Age of Majority Act
1974 (ACT); Minors (Property and Contracts) Act 1970 (NSW); Age of
Majority Act 1974 (NT); Age of Majority Act 1974 (Qld); Age of Majority
(Reduction) Act 1970 (SA); Age of Majority Act 1973 (Tas); Age of Majority
Act 1977 (Vic); Age of Majority Act 1972 (WA).
1.22 A minor may sue for harm caused to them by another person’s tort,
including for prenatal injuries: Watt v Rama [1972] VR 353; Lynch v Lynch
(1991) 25 NSWLR 411; X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26;
Bowditch v McEwan (2002) 36 MVR 235. As a matter of procedure, a minor
sues in tort by a next friend and defends a tortious action through a guardian
ad litem.
1.23
Minors may be liable for their torts upon ordinary principles,
provided they have the capacity to form any necessary intention where that is
a required element of the tort, for example, in an action in deceit. In regard to
the position of minors who are sued in the tort of negligence, see 11.9–11.10.
1.24 There is no bar to tortious proceedings between parent and child;
instead, it will depend upon the circumstances of the case and the nature of
the tort: St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185;
Lynch v Lynch (1991) 25 NSWLR 411; Hahn v Conley (1971) 126 CLR 276;
Chang v Chang [1973] 1 NSWLR 708: see 9.77.
1.25 However, Australian courts deny the enforceability in tort of any
general parental duty of maintenance of a child or any general custodial duty:
Rogers v Rawlings [1969]
[page 6]
Qd R 262; Cameron v Commissioner for Railways [1964] Qd R 480; but
compare St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185.
The ‘need to protect parents’ from actions brought by their children was one
of the grounds used by Crennan J in Harriton v Stephens (2006) 226 CLR 52;
226 ALR 391, to find that a doctor owed no duty of care to an unborn child
requiring the doctor to advise its mother of the likelihood of its being born
disabled: at [250].
Intellectually Disabled Persons
1.26 As with minors, an intellectually disabled person may sue or be sued
in torts and a legal representative will be appointed to act on his or her behalf:
Yonge v Toynbee [1910] 1 KB 215.
1.27
The more difficult issue is whether an intellectual disability will
provide a defence in a civil action in a similar way as is possible in a criminal
law action. The answer will depend first, upon the type and degree of
disability and, second, upon the requirements of the particular tort.
The defendant will not be liable if he or she is unable to control their bodily
actions so that they are acting in a state of automatism or, for example, where
the defendant is in a state of hypoglycaemic shock. However, where the
defendant is aware of the nature and quality of his or her act, then it is no
defence that the defendant is mentally incapacitated: Morris v Marsden [1952]
1 All ER 925; Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56;
Carrier v Bonham [2002] 1 Qd R 474.
4
Comparison with Other Areas of the
Law
1.28 Just as there is overlap in the torts protecting an individual’s legal
rights (for example, both nuisance and negligence protect against indirect
interferences with the rights of possession of land), there is also overlap with
the protection afforded by other areas of the common law such as contract
and criminal law. The relationship between these common law areas can be
illustrated by the following diagram:
[page 7]
Contract and Torts
1.29 Initially, the law of contract excluded tortious liability when both had
potential application to the same set of facts. Some of the first exceptions to
this exclusionary rule were persons involved in common callings, such as
innkeepers, common carriers and surgeons, who were held liable in tort
unless such liability was expressly excluded under the contract: Groom v
Crocker [1939] 1 KB 194. Today in Australia, concurrent liability is possible
under both the law of torts and contract, unless such liability has been
excluded by statute or by the parties to the contract if that is statutorily
permitted: Travel Compensation Fund v Tambree (t/as R Tambree &
Associates) (2005) 224 CLR 627; 222 ALR 263; Astley v Austrust Ltd (1999)
197 CLR 1; 161 ALR 155; Voli v Inglewood Shire Council (1963) 110 CLR 74;
Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69.
1.30 Important differences between an action for breach of contract and a
tort action are as follows:
Generally, the law of contract seeks to vindicate a single right or
interest — the performance of a promise agreed to by parties to a
contract. The law of torts seeks to vindicate wider and more diverse
rights including personal safety and integrity, protection of property,
commercial interests and protection of reputation.
Under the law of contract, legal obligations are imposed in a factual
situation from which, as a minimum, an inference of agreement
between the parties can be assumed. In contrast, under torts law, legal
obligations are imposed in factual situations from which no
appearance of agreement can be inferred or assumed.
Damages for breach of contract represent the value of the loss of the
contractual bargain, including loss of any profit, whereas in torts,
damages represent compensation for the loss and injury flowing from
the negligent act or omission. Also, damages in contract may be the
same whether the breach is intentional or unintentional and
irrespective of motive, whereas for some torts damages may vary
because of these features.
The civil liability legislation in some states allows for the parties to a
contract to restrict the operation of the respective Acts other than
those aspects relating to proportionate liability and the assessment of
damages: Civil Liability Act 2002 (NSW) s 3A; Civil Liability Act 2003
(Qld) s 7(3); Civil Liability Act 2002 (Tas) s 3A; Wrongs Act 1958 (Vic)
s 28D; Civil Liability Act 2002 (WA) s 58.
For a discussion of the interaction between the tort of negligence and
contract law, see Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214
ALR 355; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR
515; 205 ALR 522; Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163.6
[page 8]
Crimes and Torts
1.31
The earliest torts were concerned with the punishment and
deterrence of wrongdoing, and the areas of crime and tort were not regarded
as separate areas of law until near the end of the 13th century. Today, one
important difference between torts and criminal actions is that the former are
initiated by and against parties in their individual capacities and are designed
to vindicate private rights. In comparison, criminal proceedings are largely
initiated and controlled by the state, with the aim of punishing those who
harm society by transgressing society’s rules and deterring others from doing
likewise.
1.32 The onus of proof in crime and torts also differs. The onus is on the
prosecution in a criminal trial to prove its case beyond reasonable doubt,
whereas in a civil torts action the plaintiff need only prove their case on the
balance of probabilities.
1.33 Another distinction arises in respect of the significance of intention.
As a general rule in criminal law, the accused must be shown not only to have
intended the act but also its consequences. In most torts, provided the
defendant’s act was voluntary, the tortfeasor may be liable for the
consequences of the wrongdoing whether they were intended or not: see 1.6.
1.34 The primary remedy in torts is compensatory damages, which have
the object of returning the injured party to the position they would have been
in had the wrong not been committed against them. The primary object of
criminal law penalties (for example, imprisonment, a fine or community
service) is to punish the wrongdoer and to deter others from engaging in
criminal activity. Moreover, in criminal law, the degree of punishment is
measured against the degree of culpability rather than the harm caused. In
torts, the remedy, which usually involves the calculation of the quantum of
damages, is determined by reference to the degree of harm suffered by the
plaintiff rather than by reference to the manner in which it was caused.
1.35 While the parallel development of the criminal law has reduced the
importance of the role of deterrence in tort law, as Hayne J commented in
Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [165]:
… it is not useful to attempt to divide the litigious world into only two parts, one marked “civil”
and the other marked “criminal”. The litigious world is more complex than that. And as
Windeyer J pointed out in Uren v John Fairfax & Sons Pty Ltd [(1966) 117 CLR 118 at 149], “the
roots of tort and crime … are greatly intermingled”. No doubt this historical intermingling
contributes to the considerable overlapping that can be seen between the purposes to which the
law of tort and the criminal law seek to give effect. Because both the law of tort and the criminal
law have several and overlapping purposes and effects, it is incomplete to see the former as
concerned only with harm and its compensation, and the latter as concerned only with fault and
its punishment. [footnotes omitted]
1.36 The role of the torts law in deterring socially unacceptable behaviour
and promoting individual responsibility for wrongdoing is reflected, for
example, in the defence of illegality,7
[page 9]
which may provide a complete answer to a plaintiff’s action in tort: see
Chapter 13. Another example is provided by the remedies which may be
available in a tort action. As Brennan J commented in the High Court
decision in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd
(1985) 155 CLR 448 at 471:
As an award of exemplary damages is intended to punish the defendant for conduct showing a
conscious and contumelious disregard for the plaintiff’s rights and to deter him from
committing like conduct again, the considerations that enter into the assessment of exemplary
damages are quite different from the considerations that govern the assessment of
compensatory damages.
See also Lamb v Cotogno (1987) 164 CLR 1; Gray v Motor Accident
Commission (1998) 196 CLR 1; New South Wales v Ibbett (2006) 229 CLR
638.
1.37 Deterrence and concepts of individual responsibility may also have a
negative role to play in torts law in terms, for example of whether a cause of
action is recognised as existing on the facts of a particular case. In Cole v
South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207
ALR 52, the High Court refused to find that the club management was liable
in negligence to an intoxicated club patron. The patron’s excessive
consumption of alcohol resulted in her being injured in a motor vehicle
accident outside the club’s premises. In Cole, the majority justices stressed the
importance of individuals accepting responsibility for their own actions as
being a factor in the role of the law of torts. These comments by Callinan J (at
[121]) are typical of the views of the majority:
Except for extraordinary cases, the law should not recognise a duty of care to protect persons
from harm caused by intoxication following a deliberate and voluntary decision on their part to
drink to excess. The voluntary act of drinking until intoxicated should be regarded as a
deliberate act taken by a person exercising autonomy for which that person should carry
personal responsibility in law. The respondent owed the appellant only the ordinary general
duty of care owed by an occupier to a lawful entrant. Heydon JA, with Santow JA agreeing held
that to extend the duty to the protection of patrons from self-induced harm caused by
intoxication would subvert many other principles of law and statute which strike a balance
between rights and obligations, and duties and freedoms.
5
The Evolution of Torts Law
1.38 The earliest reliable records of torts actions date from the reigns of
the English Kings, John and Henry III, in the early years of the 13th century.
These initial tort actions were concerned with property and feudal rights and
usually involved a violent interference with those rights.
1.39 By the middle of the 13th century, the trespass actions had become
well established, including civil assault, battery, false imprisonment, unlawful
entry onto land and the taking away of chattels (moveable possessions). These
early tort actions were commenced in court by a type of summons which used
the term quare, asking why the wrongdoer had harmed the plaintiff. The
common feature of these early torts, apart from the initiating summons, was
the direct nature of the interference with the plaintiff’s rights.
[page 10]
The quare trespass action also came to be used in cases where the plaintiff
could not satisfy the requirements of a trespass action, but nevertheless
attempted to explain why their case was aligned with, or was an extension of,
the trespass action. These actions formed a collection of torts which became
known as ‘trespass on the case’. The interferences were not usually as violent,
obvious and direct, and the feature of indirectness became associated with the
actions on the case. The negligence and nuisance actions are examples of
actions on the case. It was the negligence action which was destined to
become the dominant tort of the 20th and, at least the first decades of, the
21st centuries.
1.40 The ascendancy of the tort of negligence was hindered, however, by
the failure of the common law to develop a general principle for the basis of
liability in a negligence action. Instead, the courts continued to use the
precedents governing the forms of action to define (and limit) the specific
situations giving rise to legal responsibility for injury to persons and property.
Often the precedents used were based on a pre-existing or implied
contractual relationship, for example the relationship between passengers and
the carriers who undertook to convey them for reward: White v Boulton
(1791) Peake 113. However, the courts had also commenced to find duties in
road and sea accident situations which were not dependent upon some pre-
existing contractual relationship and which created a broader form of liability
for injury consequent upon negligence: see, for example, Mitchil (or Michael)
v Alestree (1676) 1 Vent 295; 3 Keb 650; 2 Lev 172.
1.41 Nevertheless, until the decision in Donoghue v Stevenson [1932] AC
562, judges continued to restrict the general application of the negligence
action by requiring cautious analogy with already established causes of action.
For example, reliance on notions of privity of contract as the basis of liability
of manufacturers in an era of expanding commerce was used to severely
curtail the liability of manufacturers, distributors and vendors in negligence
for harm caused by faulty products: Winterbottom v Wright (1842) 10 M &W
109.
1.42 In Donoghue v Stevenson [1932] AC 562, Lord Atkin attempted to
bring all negligence cases within a single principle, what has subsequently
been called the ‘neighbour’ principle. The essence of the neighbour principle,
as formulated by Lord Atkin (at 580), is that:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee
would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems
to be — persons who are so closely and directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when I am directing my mind to the acts or
omissions which are called in question.
This deceptively simple ‘neighbour’ principle was soon extended to cover
all physical damage cases and not just those concerned with the negligent
manufacture of goods: see Chapter 8.
1.43 During the second half of the 20th century, the negligence action was
extended, for example to cover all aspects of the employment relationship
(Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18), as well as non-physical
damage such as pure economic loss (Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465; Mutual Life & Citizens Assurance Co
[page 11]
Ltd v Evatt (1968) 122 CLR 556) and pure psychiatric injury: Mount Isa Mines
Ltd v Pusey (1970) 125 CLR 383; Jaensch v Coffey (1984) 155 CLR 549.
The result was that the tort of negligence became ‘an all-conquering
generalised action … infinitely adaptable and capable of applying to all forms
of social and economic activities’.8 The increasingly widespread availability of
insurance also had a positive influence on the development of the tort of
negligence. As Spigelman commented:
There seems little doubt that the attitude of judges has been determined to a very substantial
extent by the assumption, almost always correct, that the defendant is insured … Judges may
have proven more reluctant to make findings of negligence, if they knew that the consequence
was likely to bankrupt the defendant and deprive him or her of the family home.9
The Impact of Statute
1.44 While the common law courts were the primary creators of the early
law of torts, during the 19th century it became increasingly clear to many
people that the traditionally conservative nature of judicial law-making meant
that timely changes were more likely to come from parliament-made statute
law, rather than from the precedent-bound common law. It was primarily
parliaments, then, that enacted the legislation which changed or modified the
common law to take into account the political, economic and social changes
brought about by the Agricultural and Industrial Revolutions in both England
and Australia.
No-fault compensation
1.45 No-fault compensation schemes have replaced the fault-based torts
law systems in some areas of personal injury in response to political,
economic and social changes.
1.46
Injuries arising from the workplace It was the increasing
recognition that it was employers, rather than injured employees, who should
bear the financial responsibility for the cost of workplace accidents (and their
prevention) which resulted in the English Parliament enacting the 1897
English Workmen’s Compensation Act.
The distinguishing feature of workers’ compensation legislation is that
workers who are injured, or their health impaired, are compensated without
the need to prove that their employer was at fault. All that is generally
required is that there is a causal or temporal link between their injury and
employment. The legislation, therefore, shifts the cost of workplace accidents
from employees to employers: McGuire v Union Steamship Co of New
Zealand Ltd (1920) 27 CLR 570 at 578–83. Similar legislation was
subsequently enacted in each of the Australian states during the early years of
the 20th century: see 9.53.
A person injured at work is entitled to bring a common law action, with
limitations, in all jurisdictions, except in the Northern Territory: Return to
Work Act (NT) s 52(1).
1.47 Injuries arising from transport accidents All jurisdictions provide
no-fault schemes for personal injury arising from motor vehicle accidents.
The right to take a
[page 12]
common law action varies. For example, in the Northern Territory a person
injured in a motor vehicle accident has no common law action: Motor
Accidents (Compensation) Act 1979 (NT). In Tasmania, the compensation
available is limited but an injured person may have a common law action
(Motor Accidents (Liabilities and Compensation) Act 1973 (Tas)), and in
Victoria an injured person is entitled to no-fault benefits and may only take a
common law action if their injuries are serious: Transport Accident Act 1986
(Vic). In the other jurisdictions a common law action is available; however,
legislation places limits on the damages recoverable.
1.48 Victims of crime Criminal injury compensation schemes exist in all
jurisdictions, allowing a victim of a crime to receive limited compensation
from government funds: see Victims of Crime (Financial Assistance) Act
1983 (ACT); Victims Support and Rehabilitation Act 1996 (NSW); Victims of
Crime Assistance Act 2006 (NT); Victims of Crime Assistance Act 2009
(Qld); Victims of Crime Act 2001 (SA); Victims of Crime Assistance Act 1976
(Tas); Victims of Crime Assistance Act 1996 (Vic); Criminal Injuries
Compensation Act 2003 (WA).
Apportionment of liability
1.49
The defence of contributory negligence, which was a complete
defence at common law, provides another example of the limitations of the
common law and the need for legislative intervention. At common law, where
the plaintiff contributed, even in a small way, to the accident in which the
plaintiff was injured, no remedy would be available in tort. While the courts
did attempt to soften the harshness of the defence by the creation of, for
example, the ‘last opportunity’ rule, the defence continued to operate unjustly
until its statutory modification in the mid-20th century in all Australian
jurisdictions. The effect of the statutory modification has been to allow an
apportioning of liability between the defendant and the plaintiff depending
upon their respective fault: see Chapter 13.
Consumer protection
1.50 Parliaments have in the past enacted a wide range of legislation in the
area of consumer protection and fair trading. In 2010, a single, national law,
the Australian Consumer Law, encompassing consumer protection and fair
trading, was adopted by every state and territory: Competition and Consumer
Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)). The Australian
Consumer Law replaces the various national, state and territory consumer
laws to provide consistency.
Section 18 of the Australian Consumer Law (formerly s 52 of the Trade
Practices Act 1974 (Cth)), which prohibits a person, in trade or commerce,
from engaging in misleading or deceptive conduct, has had a significant
impact on torts law, especially the tort of negligence as it relates to negligent
misrepresentations, and the torts of deceit and passing off. For example, the
considerable difficulties in proving that a defendant who made
misrepresentations owed the plaintiff a duty of care in negligence, or it was
done with the intention to cause loss in respect of an action in deceit, do not
arise if the plaintiff takes an action under s 18 of the Australian Consumer
Law: see Chapter 19.
[page 13]
Civil liability legislation
1.51 It is the civil liability legislation enacted in response to the Review of
the Law of Negligence — Final Report10 (the Ipp Report) by all Australian
jurisdictions, however, which is likely to have the most significant and longlasting impact on the Australian law of torts.
The terrorist attacks in America on 11 September 2001, the collapse of
major Australian insurance providers, such as HIH Insurance and United
Medical Protection, and the consequent dramatic increase in insurance
premiums, forced Australian governments to rethink the operation of the tort
of negligence as it interacts with other areas of the law. Consequently, in May
2002, the Commonwealth, state and territory governments jointly agreed to
appoint a panel of eminent persons to examine and review Australian law as
it relates to actions for personal injury and death resulting from negligence,
regardless of whether the action is brought in tort, contract, under a statute,
or under any other cause of action: see the Ipp Report at [7.1]. On 2 October
2002, the panel delivered the Ipp Report, named after the chairperson of the
panel, Justice Ipp.
Many hoped that the Ipp Report would lead to a greater consistency
between the various Australian jurisdictions in regard to the law of torts.
Unfortunately, this has not been the case and, while all state jurisdictions
have enacted legislation in response to the Ipp Report, there remain
significant jurisdictional differences. Moreover, the state and territory
parliaments in some situations (for example, the liability of public authorities
and proportionate liability for property and pure economic loss claims)
enacted legislation which went beyond the reforms suggested in the Report,
leading to further divergences between various Australian jurisdictions: see
Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW);
Personal Injuries (Liabilities and Damages) Act 2003 (NT); Civil Liability Act
2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas);
Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA).11
The Impact of Insurance
1.52 The role of insurance has been critical to the exponential growth of
the law of torts. This is especially the case in regard to third party insurance
and, to a lesser extent, in regard to indemnity (or first party) insurance. So
pervasive has been the influence of the availability of insurance, that Ipp
wrote:
The insurance industry wields a powerful influence in the politics of negligence. The 2002
insurance crisis demonstrated that insurance is the lifeblood, not only of commerce and
industry, but of medical and other professional services and many aspects of everyday life. The
events of 2002 showed that, without the availability of reasonably priced indemnity insurance,
the fabric of society is at risk.12
[page 14]
See also Kirby J’s comments in Waller v James; Waller v Hoolahan (2006)
226 CLR 136; 226 ALR 457 at [45].
1.53 Under indemnity insurance (for example, a household insurance
policy), the insured is reimbursed for any loss regardless of whether or not
the loss was caused by a third party’s tortious conduct. It is only in
circumstances where the loss was tortiously caused that the insurance
company has the choice, under the equitable doctrine of subrogation, of
whether or not to recoup that loss through the tort system.
1.54 The operation of third party insurance, on the other hand, is only
relevant when the insured is found legally liable to compensate a third party
harmed by the insured’s tortious conduct. In these circumstances, third party
insurance may provide a defendant with critical protection against a ruinous
award of damages which may, because of the compensatory function of torts
law, be out of proportion to the defendant’s fault. For the injured plaintiff
there is the advantage that the tortfeasor’s insurer will have sufficient funds
from which to satisfy the award of damages.
1.55
As Cane has commented:
… the law of torts has come in practice to operate in a way which is very different from the way
a simple statement of the relevant legal rules, would suggest. The development of liability
insurance has altered the administration and financing of the tort system out of all recognition.
The vast majority of tort claims are settled out of court by the defendant’s insurance company,
so the behaviour of insurance companies is at least as important to an understanding of the way
the tort system is administered in practice as is the behaviour of lawyers and courts. In practice
most tort compensation is paid by insurers and not by the people who commit torts. When
individual tortfeasors did pay damages, lawyers were very concerned to justify this result. But
now that they do not generally do so, many lawyers have little interest in the question of how the
tort system should be financed.13
1.56
Despite the significant role that insurance has played in the
development of the law of torts, the common law courts have not adopted a
consistent approach as to whether or not it should be acknowledged as being
relevant in individual cases. In England, for example, in Davie v New Merton
Board Mills Ltd [1959] AC 604 at 627, Viscount Simonds expressed the
general position that:
… [it] is not the function of a court of law to fasten upon the fortuitous circumstances of
insurance to impose a greater burden on the employer than would otherwise lie upon him.
Yet in 1990, Lord Griffiths, in the same court, commented in Smith v Eric S
Bush (a firm) [1990] 1 AC 831 at 838 that:
… [e]veryone knows that all prudent, professional men carry insurance and the availability and
cost of insurance must be a relevant factor when considering which of two parties should be
required to bear the risk of loss.
1.57 A similar ambivalence towards acknowledging the role of insurance is
evident in Australian courts, although increasingly its existence has been
acknowledged in cases
[page 15]
involving personal injury and compulsory third party insurance: Kars v Kars
(1996) 187 CLR 354; Lynch v Lynch (1991) 25 NSWLR 411; Bowditch v
McEwan (2002) 36 MVR 235. In Imbree v McNeilly (2008) 236 CLR 510;
(2008) 248 ALR 647, the court overruled the principle from Cook v Cook
(1986) 162 CLR 376, that a learner driver owed a lower standard of care to a
passenger who was aware of their inexperience: see 11.23. Kirby J referred
specifically to the effect of compulsory third party motor vehicle insurance,
stating (at [108]):
Giving weight to the consideration of compulsory insurance accords with a growing
preparedness of the courts to acknowledge the influence of insurance, at least where it is
compulsory and provided by statute, in defining the content of legal liability. I would not
therefore ignore this consideration.
His Honour held that it was the existence of compulsory third party
insurance that obliged the court to overrule Cook v Cook and that the ‘fiction
of individual personal liability’ (at [112]) needed to be acknowledged:
If such compulsory insurance were not part of the legal background to the expression of the
applicable common law, and if it were the case, or even possible, that someone in the position of
the driver (or the owner) of the vehicle would, or might, be personally liable for the
consequences of that person’s driving affecting a passenger (such as the appellant) or other third
party it is extremely unlikely, in my view, that the courts would impose on them liability, as in
the case of the appellant’s claim, sounding in millions of dollars. Such a course would be
unrealistic and futile, characteristics the courts usually endeavour to avoid: at [111]. [emphasis
in original]
In regard to other forms of damage, and especially pure economic loss, the
cost and availability of insurance as a factor in determining liability is less
clear: Esanda Finance Corporation v Peat Marwick Hungerfords (1997) 188
CLR 241 at 282 per McHugh J; L Shaddock & Associates Pty Ltd v Parramatta
City Council (No 1) (1981) 150 CLR 225; Perre v Apand Pty Ltd (1999) 198
CLR 180; 164 ALR 606; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003)
Aust Torts Reports ¶81-692.
The High Court
1.58 Until the early 1980s, the accepted approach to the law of torts in
Australia, and the common law world generally, was based upon the doctrine
of strict legalism — also referred to as legal formalism or the declaratory
theory of law. This approach regards the law as being a logical, self-contained
set of clear principles and rules which have a determinate meaning and
which, by a logical process of induction and deduction from case law and
legislation, are capable of supplying one right answer to every legal problem.
This approach to the law is reflected in Blackstone’s comment, in 1776, that
judges:
… are the depositories of the law; the living oracles who must decide in all cases of doubt and
who are bound by an oath to decide according to the law of the land.14
[page 16]
Even then, however, there was disquiet expressed by some judges as to the
infallibility of the current system. As Jessel MR stated in London Corporation
v Riggs (1880) 13 Ch D 798 at 805:
I am afraid that, whatever I may call my decision, it will, in effect, be making law, which I have
never had any desire to do; but I cannot find that the point is covered by any decided case, or
even appears to have been discussed in any decided case. The only satisfaction I have in deciding
the point is this, that it will in all probability be carried to a higher Court, it will be for that Court
to make the law, or as we say declare the law, and not for me.15
1.59 Since the 1980s, there has been considerable debate about the extent
to which judges should continue to conform (or at least claim to conform) to
strict legalism with its perceived limits on judicial reference to ‘policy’
considerations, community values and other non-rule-based considerations.
For example, Sir Anthony Mason has commented:
In recent years the High Court has been less inclined to pursue formal legal reasoning so far …
it is not surprising that the current legal reasoning extends beyond the narrow confines of legal
formalism. It is now accepted that, at the appellate level at least, judges do make law when they
extend, qualify or reshape a principle of law. Equally we accept that courts have a responsibility
to develop the law in a way that will lead to decisions which are “humane, practical and just” to
repeat the words of Sir Harry Gibbs. Judges do not carry out this responsibility in a vacuum, by
shutting their eyes to contemporary conditions. They must have an eye to the justice of the rule,
to the fairness and the practical efficacy of its operation in the circumstances of contemporary
society. A rule that is anchored in conditions which have changed radically with the passage of
time may have no place in the law of today.16
1.60
This approach to the law, termed ‘judicial activism’ by its
opponents,17 has been criticised as representing a challenge to both judicial
probity and the ability of judges to maintain ‘a sound grip on the applicable
law in particular cases’.18 Clearly, there is a tension between the claim to the
stability of objective principles and of the need for the law to be responsive to
various historical, social, economic and political factors.19
1.61 More recently, there has been a return to a more restrained approach
to the type of policy considerations that should be taken into account in
deciding novel questions of law. The emphasis is now on legal policy rather
than broader public policy informed by community values and other nonrule-based considerations: see, for example, Cattanach v Melchior (2003) 215
CLR 1; 199 ALR 131; Travel Compensation Fund v Tambree (t/as R Tambree
& Associates) (2005) 224 CLR 627; 222 ALR 263 at [29] per Gleeson CJ.
This change in approach is apparent, for example, in the High Court
decision in the negligence case of Roads and Traffic Authority v Royal (2008)
245 ALR 653; 82 ALJR 870. Kirby J, one of the most ‘activist’ justices, and the
sole dissenting voice in the 4:1 decision,
[page 17]
considered that not to hold the defendant road authority partially responsible
for the motor vehicle accident in which the plaintiff was injured, would be
inconsistent with the function of the law of torts in terms of encouraging road
safety. His Honour said (at [117]):
To hold that the defendant motorist was the only tortfeasor liable for negligence … and to
exculpate the RTA [Roads and Traffic Authority] entirely for the dangers it caused at the
intersection, is to do nothing at all to address the “material contribution” involved in the RTA’s
conduct and omissions. Until such contributions are brought home to an authority such as the
RTA, no stimulus is provided by the law of negligence for risk assessment, measures of accident
prevention and safer highway design, construction and maintenance.
The majority of the High Court, however, was able to avoid consideration
of policy issues relating to accident prevention and the like, by finding that
the RTA’s negligence had ‘nothing to do with the collision in question’ and
should, therefore, not be regarded as causally significant in terms of the
accident which had actually occurred. Gummow, Hayne and Heydon JJ, for
example, said (at [25]):
In short, even if it could be said that the appellant’s breach of duty “did materially contribute” to
the occurrence of an accident, “by creating a heightened risk of such an accident” due to the
obscuring effect of one vehicle on another in an adjoining lane, it made no contribution to the
occurrence of this accident. [emphasis in original]
1.62 This approach can be compared with the more expansive approach to
policy considerations favoured by Santow and Tobias JJA of the New South
Wales Court of Appeal in Royal v Smurthwaite (2007) 47 MVR 401 and Toll
Pty Ltd v Dakic [2006] NSWCA 58.
Nevertheless, and regardless of the merits of the ongoing struggle between
‘the philosopher kings of policy and the black-letter lawyers who claim to
propound principle alone’,20 as Kirby J commented in Waller v James; Waller
v Hoolahan (2006) 226 CLR 136; 226 ALR 457 at [45]:
All decisions that recognise a cause of action in new circumstances or which alter the course of
the common law will have unforeseen consequences. Decisions which result in a change in legal
principle in, for instance, the law of torts, will inevitably have economic consequences and
ramifications for the insurance industry and the premium-paying population which cannot be
fully anticipated. Yet before and since Donoghue v Stevenson [[1932] AC 562] to the present day,
this has not been accepted as a reason why judges should refuse to express the common law
applicable to new circumstances and, where necessary, to develop and elaborate the common
law to meet changed social and technological circumstances.
Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 1.
D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003)
23 Aust Bar Rev 1.
[page 18]
D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609.
—, ‘The Politics, Purpose and Reform of the Law of Negligence’ (2007)
81 ALJ 456.
M Kirby, ‘Judicial Activism? A Riposte to the Counter-Revolution’
(2004) 24 Aust Bar Rev 219.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 1.
B McDonald, ‘The Impact of the Civil Liability Legislation on the
Fundamental Policies and Principles of the Common Law of
Negligence’ (2006) 14 TLJ 268.
A Mason, ‘Future Directions in Australian Law’ (1987) 13 Mon LR 149.
J J Spigelman, ‘Negligence and Insurance Premiums: Recent Changes
in Australian Law’ (2003) 11 TLJ 291.
J Stapleton, ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820.
P Stewart and A Stuhmcke, ‘The Rise of the Common Law in Statutory
Interpretation of Tort Law Reform Legislation: Oil and Water or a
Milky Pond?’ (2013) 21 TLJ 126.
1.
See, for example, P Higgins, Elements of Torts in Australia, Butterworths, Sydney, 1970, pp 35–6.
2.
See, for example, J Stapleton, ‘The Golden Thread at the Heart of Tort Law: The Protection of the
Vulnerable’ (2003) 24 Aust Bar Rev 135.
3.
See also Australian Law Reform Commission (ALRC), For Your Information: Australian Privacy
Law and Practice, Report No. 108, 2008.
4.
D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 615.
5.
See R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch
29.
6.
See also J Swanton, ‘Concurrent Liability in Tort and Contract: The Problem of Defining the
Limits’ (1996) 10 JCL 21.
7.
See, for example, J Goudkamp, ‘Can Tort Law be Used to Deflect the Impact of Criminal
Sanctions? The Role of the Illegality Defence’ (2006) 14 TLJ 20.
8.
D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 609.
9.
J J Spigelman, ‘Negligence, the Last Outpost of the Welfare State’ (2002) 76 ALJ 432 at 433.
10.
Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-ofNegligence>.
11.
See P Stewart and A Stuhmcke, ‘The Rise of the Common Law in Statutory Interpretation of Tort
Law Reform Legislation: Oil and Water or a Milky Pond?’ (2013) 21 TLJ 126.
12.
D Ipp, ‘The Politics, Purpose and Reform of the Law of Negligence’ (2007) 81 ALJ 456 at 456.
13.
P Cane, Atiyah’s Accidents, Compensation and the Law, 5th ed, Butterworths, London, 1993, p 5.
14.
Blackstone’s Commentaries on the Laws of England, 2nd ed, Clarendon Press, Oxford, 1776, Vol 1,
p 69.
15.
As Young J notes, ‘In the event, there was no appeal, and his Lordship’s judgment is still being
cited’: see ‘Current Issues’ (2008) 82 ALJ 71 at 73.
16.
A Mason, ‘Future Directions in Australian Law’ (1987) 13 Mon LR 149 at 158.
17.
See, for example, D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Aust
Bar Rev 1 at 4.
18.
D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Aust Bar Rev 1 at 9.
19.
See also M Kirby, ‘Judicial Activism? A Riposte to the Counter-Revolution’ (2004) 24 Aust Bar Rev
219.
20.
D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 614.
[page 19]
Chapter 2
The Distinction Between Trespass
and Case
1
Introduction
2.1 The law of torts covers a wide variety of actions, but the actions may be
classified into two main groups — trespass actions and actions on the case.
The early common law was procedurally very formal and unless plaintiffs
could bring themselves within the terms of one of the recognised writs they
had no remedy. The first writ in tort emerged in the 13th century in respect of
forcible interferences with a person or their property in circumstances where
the King’s peace was threatened. It became necessary to allege that the
defendant had acted vi et armis contra pacem regis (by force and arms against
the King’s peace) even if that was a fiction. A breach of the peace was more
likely to arise where some direct invasion of person or property had taken
place, as it was likely to result in resistance and the resulting fracas would
necessitate the presence of the King’s forces to put a stop to the breach of the
peace. From this the action of trespass developed as the remedy against all
forcible, direct and immediate injuries, whether against the person, goods or
land of the plaintiff.
The trespass actions developed to maintain the King’s peace and to support
the deterrence function of the tort, the defendant had to prove that they were
not at fault in order to avoid liability. Further, the plaintiff did not have to
prove that they suffered loss as a result of the direct interference, just that
there had been an interference with their rights.
The action on the case, originally referred to as ‘trespass on the case’, was
developed to complement trespass. It provided a means of redress where the
injury was only consequential, that is, it was not a direct and immediate result
of the defendant’s act. In contrast to trespass, the plaintiff had to prove all the
elements of the action on the case, including that they had suffered damage as
a result of the interference.
2.2 The primary distinction between trespass and case was whether there
was a direct causal connection between a defendant’s conduct and the
interference with the plaintiff’s rights. If it was direct then there was an action
in trespass and if it was indirect then it was an action on the case: Scott v
Shepherd (1773) 2 Wm B1 892; 96 ER 525; Hutchins v Maughan [1947] VLR
131; Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182.
[page 20]
2.3
In England, there have been significant developments that have
changed the basis for the distinction between trespass and case from
directness to intention. With industrialisation in England in the 19th century,
there was an increase in the use of highways. Case law developed establishing
that trespasses on or to land adjoining a highway were not actionable, even if
direct, unless the plaintiff also established that the interference was
intentional or negligent: Holmes v Mather (1875) LR 10 Ex 261.
2.4 Through this distinction between highway trespass and non-highway
trespass, the element of fault crept into highway trespasses as a necessary part
of the plaintiff’s case and, in England, it started to encroach into other forms
of trespass in the form of a defence. Consent and inevitable accident had long
been recognised as defences to actions in trespass and the defence of
inevitable accident was extended in England to cases in which the
interference could not have been avoided even with the exercise of a degree of
skill and care: Stanley v Powell [1891] 1 QB 86; National Coal Board v J E
Evans & Co (Cardiff) Ltd [1951] 2 KB 861.
Stanley v Powell involved the defendant member of a shooting party firing
at a pheasant. One of the pellets from his gun deflected off the bough of a tree
and accidentally wounded the plaintiff, who was carrying cartridges and game
for the shooting party. The jury held that the defendant had not been
negligent in discharging the gun. In the light of that finding, Denman J held
that the defendant could not be liable in trespass. His Honour said (at 88):
[N]o decision was quoted, nor do I think that any can be found which goes so far as to hold, that
if A is injured by a shot from a gun fired at a bird by B, an action of trespass will necessarily lie,
even though B is proved to have fired the gun without negligence and without intending to
injure the plaintiff or to shoot in his direction.
2.5
Because trespasses, although originally based on directness, were
becoming associated with intention, and actions on the case, although
originally based on indirectness, were more associated with unintentional
interferences, a peculiar halfway house emerged. Where the interference was
both direct and unintentional, the plaintiff had the option to sue in either or
both trespass and case.
2.6 In 1959 in England, a further modification occurred when Diplock J
held that even in a non-highway trespass, the onus was upon the plaintiff to
show that the injury was not only the direct consequence of the defendant’s
act, but also that it was caused either intentionally or through negligence, that
is, through the defendant’s fault: Fowler v Lanning [1959] 1 QB 426. After
1959, trespass to the person on the highway in England no longer differed
from trespass committed in any other place and the onus of proving some
form of negligence, where the trespass was not intentional, was upon the
plaintiff, whether the action was framed in trespass or as an independent
action on the case for negligence.
Finally, in 1964, the English Court of Appeal held that where an injury is
inflicted unintentionally, whether it be directly inflicted or not, the only cause
of action is an action on the case for negligence: Letang v Cooper [1965] 1 QB
232, a case in which the defendant negligently drove over the legs of the
female plaintiff as she sunbathed in a hotel car park. This remains the present
position in England. Unintentional injuries can no longer give rise to a cause
of action in trespass — they must be brought in an action on the case in
negligence. Intentional injuries may only be brought in trespass.
[page 21]
2.7
The position is not the same in Australia as in England, as the
Australian courts have only kept pace with some of the developments in
England. In Australia, it is the question of whether the interference was direct
that determines whether there is a trespass, not intention: Williams v Milotin
(1957) 97 CLR 465 (defendant’s truck striking the plaintiff cyclist); Blacker v
Waters (1928) 28 SR (NSW) 406; Exchange Hotel v Murphy [1947] SASR 112.
Further, although the distinction between non-highway trespass and highway
trespass in respect of trespass to person became part of Australian law, there
has been no abandonment of the differences in the onus of proof.
2.8 In McHale v Watson (1964) 111 CLR 384, Windeyer J considered the
English authorities but reaffirmed the Australian position that an action for
trespass in non-highway cases will lie for a direct voluntary contact; however,
the defendant can raise as a defence the absence of intention or that all
reasonable care was taken, that is, accepting the English developments up to
Stanley v Powell in 1891 but going no further. McHale v Watson involved a
child being struck in the eye by a metal dart thrown by the defendant child.
Because it was direct and unintentional, the plaintiff took the option of suing
in both trespass and case. The plaintiff failed in trespass because the
defendant in this non-highway case discharged the onus of proof in proving
absence of fault. The plaintiff also failed in negligence, failing to prove the
defendant was at fault. Windeyer J said (at 388):
But the question remains: Is it for the plaintiff to establish that the missile with which she was
hit was thrown with intent to hit her or so negligently that it did so or is it for the defendant who
threw it to prove an absence of intent and negligence on his part? I think the latter view is
correct.
2.9 In Australia, trespass lies for direct voluntary contacts without the need
of proof of actual damage, but in cases of direct unintentional interference
causing actual damage the plaintiff may sue either in trespass or negligence:
Hackshaw v Shaw (1984) 155 CLR 614; Venning v Chin (1974) 10 SASR 299;
West v Peters (1976) 18 SASR 338.
The conferring of such a choice means that Australia has accepted the
original distinction based on directness for trespass, but has moved to
accepting lack of intention as the criterion for case. Where there is a choice,
in a highway case there may be no advantage to a plaintiff suing in trespass
because proof of fault (intention or absence of due care) still lies with the
plaintiff. In a non-highway case, if the plaintiff sues in trespass, fault will not
have to be proven by the plaintiff, as the onus will lie on the defendant to
disprove fault.
2.10 Further, if there is an intentional infliction of harm, the plaintiff may
take action in trespass or case. In Wilson v Horne (1999) 8 Tas LR 363, the
Tasmanian Full Court held that the intentional assaults committed on the
plaintiff did not mean that only an action in trespass was available and that
the plaintiff was entitled to proceed with a claim in negligence.
This has also been confirmed by the High Court in New South Wales v
Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195
ALR 412. Actions were brought by former pupils against the education
authority for assaults committed by a teacher. The plaintiffs also sued the
teacher personally in trespass to the person. McHugh J noted that the
plaintiffs could have sued the teacher in negligence, as the fact that the
teacher had
[page 22]
intentionally inflicted the harm did not bar a claim in negligence. His Honour
noted (at [162]):
Historically, as long as a plaintiff did not make the intention of the defendant part of the cause
of action, the plaintiff could sue in trespass to the person or by an action on the case for the
direct infliction of force. At all events, that was the position before the enactment of the
Common Law Procedure Act 1852 (UK) and its analogues in Australia [Williams v Milotin
(1957) 97 CLR 465 at 470–1]. Since the abolition of the forms of action, a plaintiff may, if he or
she chooses, sue in negligence for the intentional infliction of harm [Gray v Motor Accident
Commission (1998) 196 CLR 1].
2.11
The trespass/case distinction is shown in the following diagram:
[page 23]
2
Trespass
2.12
As the courts recorded facts and decisions of cases, precedents
developed and this led to the tort of trespass evolving into distinct nominate
torts. The actions of trespass provide protection for a plaintiff’s person
(assault, battery and false imprisonment), their land (trespass to land) and
their goods and chattels (trespass to chattels, conversion and detinue).
However, although the actions protect different interests, as trespass actions
they share the same distinguishing characteristics. The characteristics of the
trespass actions in Australia can be summarised as:
a direct interference with person or property of the plaintiff;
the defendant at fault;
actionable per se; and
onus of proof differs upon the trespass being classified as highway or
non-highway.
Direct Interference
2.13 Direct means that the interference with the plaintiff’s rights followed
so closely on the defendant’s act that it could be considered part of that act:
Hutchins v Maughan [1947] VLR 131 at 133 per Herring CJ (the defendant by
laying baits for dogs, which were subsequently taken by the plaintiff’s dogs,
did not commit a trespass to the dogs as it was not direct). See also Rural
Export and Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 where
the court held that placing matter in the feeding troughs for sheep did not
amount to a direct interference with the sheep. Gray ACJ stated (at [72]):
There is an obvious distinction between direct interference of the kind required to constitute a
trespass and leaving something that sheep might or might not choose to eat in a place where
they might or might not choose to go for the purpose of eating.
The commonly used example to demonstrate what is a direct interference
comes from Fortescue J in Reynolds v Clarke (1725) 1 Stra 634; 93 ER 747. A
person going along a road, who is hit on the head by a log that is thrown, has
an action in trespass as the interference is direct. However, if the same person
comes upon a log thrown onto the road at an earlier point in time, and
receives an injury by falling over it, the injury is not direct, but indirect or
consequential, and an action on the case lies: cited in Scott v Shepherd (1773)
2 Wm B1 892; 96 ER 525 at 526 and Hutchins v Maughan at 133.
2.14 Not all decisions appear consistent with this formulation. In Scott v
Shepherd, a lighted squib or firework was thrown into a marketplace and was
then passed on by several parties before eventually exploding in the plaintiff’s
face, putting out one eye. Notwithstanding the chain of parties over a
temporal period, the interference was held to be direct and a trespass as the
parties had acted out of necessity for their safety and therefore their actions
did not break the chain of directness.
Fault of the Defendant
2.15
In trespass, the act complained of must have been done either
intentionally or with a lack of due care, referred to generally as ‘fault’.
[page 24]
Intention
2.16 In the trespass actions, the intention of the defendant is judged in
relation to the consequences of the act rather than the act itself. The motive of
the defendant is irrelevant. It is enough if the defendant must have known
that the consequences of the act were certain or substantially certain to
happen. Cane has stated:
The concept of “intention” is used loosely in tort law. Sometimes it appears as a synonym for
“voluntary”; sometimes it is described as a “motive”; and it is often used to embrace
recklessness.1
Therefore, to be intentional the act must be done deliberately, voluntarily
and with the intention of causing the interference or with knowledge of the
consequences that are likely to result. In Carter v Walker (2010) 32 VR 1 at
[215] it was stated:
… it may be that an act should also be considered intentional if it is substantially certain that the
act will result in contact with the plaintiff; and perhaps also if the act is reckless with respect to
contact with the plaintiff. [footnotes omitted]
2.17 A distinction can be made between intention and involuntariness. If a
defendant can prove that the interference was involuntary, then there can be
no trespass as the act could not be intentional: Smith v Stone (1647) Style 65;
82 ER 533 applied in Public Transport Commission (NSW) v Perry (1977) 137
CLR 107; 14 ALR 273. In Morriss v Marsden [1952] 1 All ER 925 at 927, it was
stated:
An intention — ie, a voluntary act, the mind prompting and directing the act which is relied on,
as in this case, as the tortious act — must be averred and proved. For example, I think that, if a
person in a condition of complete automatism inflicted grievous injury, that would not be
actionable. In the same way, if a sleepwalker inadvertently, without intention or without
carelessness, broke a valuable vase, that would not be actionable.
See also Hogan (an infant by his next friend Williams) v Gill (1992) Aust
Torts Reports ¶81-182, where a judge of the Supreme Court of Queensland
held that although the six-year-old defendant voluntarily pulled the trigger of
the gun with the intention of simulating the firing of a gun, he did not intend
to actually fire the bullet that was in the chamber of the gun, and which the
judge held he was probably unaware of.
Lack of care
2.18 The action of negligence is also associated with an absence of care,
often referred to as ‘fault’, on the part of the defendant. The fault required in
negligence refers to the defendant breaching the duty of care owed to the
plaintiff, that is, the failure of the defendant to achieve the objective standard
of care to avoid risk of injury to the plaintiff. The differences were highlighted
in the joint judgment in Williams v Milotin (1957) 97 CLR 465 at 474:
The two causes of action were not the same now and they never were. When you speak of a
cause of action you mean the essential ingredients in the title to the right which it is proposed to
enforce. The essential ingredients in an action of negligence for personal injuries include the
[page 25]
special or particular damage — it is the gist of the action — and the want of due care. Trespass
to the person includes neither. But it does include direct violation of the protection which the
law throws round the person.
Therefore, a defendant who acts carelessly in committing a direct
interference may be liable in trespass despite the fact that the act was not done
intentionally.
Actionable Per Se
2.19 All trespass actions are actionable per se. This means that the plaintiff
does not need to prove that they have suffered any loss or damage due to the
interference to succeed in their trespass action. The cause of action arises
upon the direct interference with the plaintiff’s rights as the law presumes
damage upon the interference with a legal right: Nicholls v Ely Beet Sugar
Factory Ltd [1936] 1 Ch 343. However, if the plaintiff has not suffered any
loss, this will impact on the assessment of damages: see 15.14.
Onus of Proof
2.20 In trespass actions, the general rule is that the onus of proof rests
upon the plaintiff to establish that the interference complained of was direct.
The onus then shifts to the defendant to prove that they were not at fault.
This shift in onus comes from the deterrence function of the tort; that is, the
wrongdoer must establish that they are not liable, rather than the plaintiff
proving that they are.
As noted at 2.7, the distinction between highway and non-highway
trespasses remains part of the Australian law, the High Court confirming that
in trespass in non-highway cases, the plaintiff need not prove fault of the
defendant: McHale v Watson (1964) 11 CLR 384. In a highway trespass,
therefore, a plaintiff has to prove fault on the part of the defendant (Lord v
Nominal Defendant (1980) 24 SASR 458), whereas in non-highway trespasses,
it is for the defendant to prove an absence of fault as a defence: Blacker v
Waters (1928) 28 SR (NSW) 406.
3
Action on the Case
2.21 Just as the trespass actions developed into recognised actions, actions
on the case also developed into nominate torts such as negligence and
nuisance, associated with indirect injuries. However, not all indirect
interferences fall within the nominate actions — some remain innominate
actions on the case: see 2.25.
The characteristics of actions on the case are:
an indirect interference with the person or property of the plaintiff;
the interference may be either intentional or unintentional;
the plaintiff must have suffered damage as a result of the interference;
and
the onus of proof lies upon the plaintiff throughout.
[page 26]
4
Criticisms of the Australian Position
2.22
The trespass/case distinction is less significant today as some
jurisdictions have moved to no-fault accident schemes for road and
workplace accidents. However, there were signs that Australia will move
towards the English position and identify trespass actions based upon
intention rather than the directness of the act. In fact, trespass actions in
Australia are often referred to as the ‘intentional torts’. In Hackshaw v Shaw
(1984) 155 CLR 614 at 618–19, a non-highway trespass case involving a direct
but unintentional interference, Gibbs CJ made the following comment:
Although the allegation that the shooting was intentional was not pursued, the plaintiff claimed
in trespass as well as in negligence. The learned trial judge charged the jury that the burden lay
on the defendant to disprove negligence. In so far as the claim was for damages for trespass, the
charge proceeded on the view of the law taken by Windeyer J in McHale v Watson (1964) 111
CLR 384 at 388–9, where it was held that in an action for trespass to the person, based upon
battery by a blow or a missile, the defendant must prove that he did not intend to hit the plaintiff
and that he was not negligent in delivering the blow or discharging the missile. The decision of
Windeyer J in that case was affirmed, but the question where the onus of proof lay was not
decided on appeal: see (1966) 115 CLR 199. The conclusion reached by Windeyer J finds
support in earlier authority, and his decision on the point has since been followed in South
Australia, although not in running down cases: Venning v Chin (1974) 10 SASR 299; (1975) 49
ALJR 378 at 379; West v Peters (1976) 18 SASR 338; Lord v Nominal Defendant (1980) 24 SASR
458. However a different view has been expressed in England: Fowler v Lanning [1959] 1 QB
426; Letang v Cooper [1965] 1 QB 232. This latter view appears to me, as at present advised, to be
the preferable one but, perhaps unfortunately, we are not now called upon to resolve this
difference of opinion. The inconvenience of the rule to which the learned judge gave effect in his
charge is obvious in a case where trespass and negligence are relied on in the alternative, since a
jury would almost certainly be confused by a direction that in relation to one cause of action the
defendant bears the onus of disproving negligence and in relation to the other the plaintiff bears
the onus of proving it. In fact the learned trial judge omitted to tell the jury that in a case based
on negligence the onus of proof lies on the plaintiff. That meant that there was a misdirection.
However no appeal was taken on that ground to the Full Court of the Supreme Court and
counsel for the defendant informed us, as he informed the Full Court, that no retrial is sought
on the ground of misdirection unless the court interferes with the finding of contributory
negligence.
2.23 In another non-highway case, Platt v Nutt (1988) 12 NSWLR 231, the
plaintiff was injured by a door which was slammed shut by the defendant, her
son-in-law, during an emotional domestic upheaval, in circumstances where
she would not have been injured except that she put her hand out to prevent
the door closing. She succeeded before the trial judge on the basis that in such
a non-highway trespass, the onus lay on the defendant to prove the absence of
negligence and the defendant had failed to discharge such onus.
On appeal to the Court of Appeal, the court confirmed that in an action for
trespass to the person, the plaintiff must prove, on the balance of
probabilities, that the interference was the direct result of the act of force of
the defendant. The plaintiff had failed to establish, on the balance of
probabilities, that her injuries had been caused by the defendant’s force rather
than her own act: at 240, 243, 247. Kirby P, in dissent, held that once it is
shown that the injuries were caused by the act of force of the defendant, the
onus is on the plaintiff
[page 27]
to prove that the conduct causing the interference was either intentional or
negligent (at 237–40), that is, giving preference to the English developments
over McHale v Watson. Clarke JA (with whom Hope JA agreed) said in
relation to this non-highway situation (at 242–3):
The conclusion that it is necessary for the [plaintiff] to establish that her injuries were caused by
the actions of the [defendant] necessarily means that the onus of showing this lay on her. If she
failed to discharge this onus then she failed, in my opinion, to make out the trespass with which
the [defendant] was charged … [T]he trial judge was unable to determine on the evidence
whether the [plaintiff] in thrusting out her arm did so as a reflex action to a threatening
situation or in order to thwart the [defendant]. The consequence is that the [plaintiff] failed to
establish that her injury resulted from, or was caused by, the act of the [defendant].
2.24
Considering the comments of members of the High Court in
Northern Territory v Mengel (1995) 185 CLR 307 at 341; 129 ALR 1 at 14,
where liability in torts was divided between ‘either the intentional or
negligent infliction of harm’, it is only a matter of time before the High Court
adopts intention or its absence as the sole basis of categorising the trespass
actions and actions on the case. Until determination by the High Court on
this specific issue, the lower courts continue to apply the requirement that
there must be a direct act by the defendant through his or her fault: New
South Wales v Knight [2002] NSWCA 392 at [16] per Meagher JA. See also
Carter v Walker (2010) Aust Torts Reports ¶82-076, where it was argued by
counsel that the decision in Letang v Cooper [1965] 1 QB 232 had ‘effectively
declared the requirement of directness dead’: at [220]. The court disagreed,
stating (at [220]):
If that is what Denning MR declared in Letang, then its death has not become part of Australian
law. It is inconsistent with the basis upon which cases such as Horkin [v North Melbourne
Football Club Social Club] [1983] 1 VR 153 and Platt v Nutt (1988) 12 NSWLR 231 proceeded.
5
Innominate Actions on the Case
2.25 An action is innominate, that is, nameless, because it never achieved
prominence in the development of any of the trespass actions or actions on
the case, for example, negligence. Indirect intentional interferences that cause
injury are examples as they do not fall into the traditional trespass/nominate
action on the case dichotomy: see diagram in 2.11. Nevertheless, as the
interference is indirect it is possible to bring an action on the case. However,
none of the other nominate actions on the case, particularly negligence, seem
compatible with intentional wrongdoing. For example, the setting of a spring
gun which intentionally injures an intruder who comes upon it some time
later cannot be trespass in Australia, because it is indirect, yet it would seem
strange to describe it as negligence, because it is wilful. Hence, it is a special
form of action on the case: Bird v Holbrook (1828) 4 Bing 628; 130 ER 911.
See also 7.2 for intentional infliction of psychiatric injury.
2.26 In 1966, the High Court ‘created’ an innominate action on the case
when it held that a person who suffers harm or loss as the inevitable
consequence of the unlawful, intentional and positive acts of another, is
entitled to recover damages: Beaudesert Shire
[page 28]
Council v Smith (1966) 120 CLR 145. In the words of the High Court (at 156),
creating the short-lived action:
… independently of trespass, negligence or nuisance but by an action for damages upon the
case, a person who suffers harm or loss as the inevitable consequence of the unlawful,
intentional and positive acts of another is entitled to recover damages from that other.
This new action was little used after its creation and was the subject of
severe criticism. It was never relied upon successfully in later cases: see
discussion in Dunlop v Woollahra Municipal Council [1982] AC 158;
Copyright Agency Ltd v Haines [1982] 1 NSWLR 182; Munnings v Australian
Government Solicitor (1994) 118 ALR 385; 68 ALJR 169.
2.27 The action was abolished by the High Court in Northern Territory v
Mengel (1995) 185 CLR 307; 129 ALR 1. In that case, the Mengels owned two
cattle stations in the Northern Territory: Neutral Junction, which members of
the Mengel family acquired in 1962, and Banka Banka Station, which was
purchased in 1987. Banka Banka had a slightly higher rainfall and one of the
reasons for its purchase was so that cattle could be moved there from Neutral
Junction during drought.
Banka Banka had been purchased for approximately $3 million, financed
through a bank loan. The Mengels intended to repay $1 million of that loan
from the sale of cattle by the end of the 1988 season. However, they were not
able to fully realise their selling plans and suffered loss because of action taken
by two employees of the Northern Territory Department of Primary Industry
and Fisheries, a stock inspector and the Acting Chief Veterinary Officer and
Chief Inspector of Stock for the Northern Territory. It was clear that there
was no statutory or other authority for the acts of the inspectors,
notwithstanding that they were furthering the aims of a governmentsponsored campaign to eradicate bovine brucellosis and tuberculosis.
The Mengels sued in the Supreme Court of the Northern Territory,
claiming damages against the Northern Territory and also against the
inspectors. For the purposes of the appeal, the claim was described as one
based on the unauthorised acts of the inspectors. The plaintiffs claimed they
suffered pure economic loss because the government inspectors quarantined
and forbade the proposed sale of the plaintiffs’ cattle on the basis that the
cattle may have been infected with brucellosis. The inspectors, in fact, acted
outside their authority but did so neither intentionally nor recklessly
indifferent as to whether they had the power so to act. The plaintiffs
formulated their claim against the inspectors and the territory in several
different ways, including upon the principle in Beaudesert Shire Council v
Smith (1966) 120 CLR 145: misfeasance in public office and negligence. They
were ultimately unsuccessful in all causes of action. The majority Justices in a
joint judgment stated:
The lack of authoritative support for the principle stated in Beaudesert, the difficulties associated
with the notions of unlawful act ‘and inevitable consequence’, and the further difficulty of
reconciling liability under that principle with the limitations upon liability for negligence and
for breach of statutory duty and with the general trend of legal development confining liability
to intentional or negligent infliction of harm compel the conclusion that Beaudesert should no
longer be followed: at CLR 539; ALR 16 per Mason CJ, Dawson, Toohey, Gaudron and McHugh
JJ.
[page 29]
2.28
If the evolution towards distinguishing actions in trespass from
actions on the case, based on intention rather than directness, is completed in
Australia, then it may open up the categories of trespass to include these
aberrant, innominate cases since they are clearly intentional wrongs.
Following the introduction of the civil liability legislation in Australian
jurisdictions after a national review of the law of negligence, there was
renewed interest in the intentional torts as the legislation that imposed
restrictions upon the awards of damages for personal injury may not apply to
intentional torts.
Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 2.
T Cockburn and B Madden, ‘A Renewed Interest in Intentional Torts
Following Legislative Changes to the Law of Negligence?’ (2006) 14
Tort L Rev 161.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 11.
S Yeo, ‘Comparing the Fault Elements of Trespass, Action on the Case
and Negligence’ (2001) 5 SCULR 142.
1.
P Cane, ‘Mens Rea in Tort Law’ (2000) 20 OJLS 533 at 554.
[page 31]
Chapter 3
Trespass to Person
1
Introduction
3.1 The law has always claimed, through development of its rules, to place
the highest value on the personal integrity and the safety of individuals.
Conduct which threatened the safety of the person or which affronted
personal comfort, dignity or freedom was almost certainly always actionable
as a tort from the earliest days. The very first actions in tort involved violent
wrongs to the person, that is, trespass to the person.
Whether personal safety and integrity were achieved always remains
questionable. Accessing the legal system to attract the benefit of the rules
required sufficient status and finances to mount an action. Even today,
infringement of privacy, domestic violence and child abuse may still largely
fall outside the ambit of protection provided by the civil actions of trespass to
person.
3.2 In Australia, trespass to person under the common law encompasses
three separate nominate torts:
battery (actual violence);
assault (a threat of violence); and
false imprisonment (deprivation of liberty).
The three actions are separate and distinct. Therefore, although it may be
common for a battery (the application of force) to be preceded by an assault
(a threat of force), they are two separate actions. In Collins v Wilcock [1984] 1
WLR 1172, Robert Goff LJ explained the three torts (at 1177–8):
The law draws a distinction, in terms more easily understood by philologists than by ordinary
citizens, between an assault and a battery. An assault is an act which causes another person to
apprehend the infliction of immediate, unlawful force on his person; a battery is the actual
infliction of unlawful force on another person. Both assault and battery are forms of trespass to
the person. Another form of trespass to the person is false imprisonment, which is the unlawful
imposition of constraint upon another’s freedom of movement from a particular place.
2
Battery
3.3
The aim of the tort of battery is to protect the plaintiff against
unwelcome and unwanted contact with their person. In Carter v Walker
(2010) Aust Torts Reports ¶82-076 at [215], the common law tort of battery
was described in the following terms:
(1) it is a species of trespass to the person;
[page 32]
(2) it is a so-called “intentional” tort, but care needs to be taken in considering the intention
which is relevant;
(3) as a starting point, it involves the defendant doing an act which causes physical contact
with the plaintiff;
(4) the act must be voluntary, that is, directed by the defendant’s conscious mind [see, for
example, Hogan [an infant by his next friend Williams] v Gill (1992) Aust Torts Reports
¶81-182; Morriss v Marsden [1952] 1 All ER 925 at 927; and Weaver v Ward (1617) 80
ER 284];
(5) … the act must have a direct rather than a consequential impact upon the plaintiff …;
(6) it does not require that the defendant intend the plaintiff any harm, or that the plaintiff
suffer harm in fact. It is actionable per se;
(7) if the act is voluntary, and the defendant “meant to do it” [McNamara v Duncan (1971)
26 ALR 584 at 587 (Fox J)] in the sense of meaning to contact the plaintiff, it will be
relevantly intentional;
(8) it may be that an act should also be considered intentional if it is substantially certain
that the act will result in contact with the plaintiff; [see the discussion in Francis
Trindade, Peter Cane and Mark Lunney, The Law of Torts in Australia (4th ed, Oxford
University Press, Melbourne, 2007), pp 39–41]; and perhaps also if the act is reckless
with respect to contact with the plaintiff [ibid pp 41–3]. …
To establish an action in common law battery, the following elements must
be present:
a direct application of force to the person of the plaintiff;
no consent to the application of force by the plaintiff; and
fault of the defendant.
Direct Application of Force
3.4 As a trespass action, battery requires that the interference with the
plaintiff’s person is direct. Therefore, the interference complained of must be
the immediate result of the defendant’s action: see 2.11. However, in
Queensland, due to the courts applying the definition of assault in s 245 of the
Criminal Code 1899 (Qld) to civil claims of battery and assault, an indirect
application of force may be actionable as a battery: see 3.37 for further
discussion.
3.5 The contact required for a battery is bodily contact — that is, the
immediate effect of the defendant’s act causes contact with the plaintiff’s
person. A defendant punching a person is a direct application of force, but so
is the throwing of an object at a person if that object comes into contact with
their body: see Duyvelshoff v Dionysuis (1990) 13 Qld Lawyer 10 (defendant
threw a stubbie bottle or aluminium can at the plaintiff).
In Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890, the
appellant was convicted of battery of a child after he punched the woman
holding the child in the face. The blow caused the child to fall from the
woman’s arms and to hit his head on the floor. The court held that although
most batteries are directly inflicted, either by striking or by a thrown missile,
the appellant’s punch was the entire and immediate cause of the woman
losing hold of the child. Laws LJ stated (at 896):
[page 33]
There is no difference in logic or good sense between the facts of this case where the defendant
might have used a weapon to fell the child to the floor, save only that it is a case of reckless and
not intentional battery.
The following are examples of battery:
to cut a person’s hair against their will, or without their consent (Forde
v Skinner (1830) 4 C & P 239; 172 ER 687);
to strike a horse so it throws its rider (Dodwell v Burford (1669) 1 Mod
24; 86 ER 703);
to throw a firework that is passed on by several parties until hitting a
person (Scott v Shepherd (1773) 2 Wm B1 892; 96 ER 525); and
to pull a chair from a person so that they are thrown to the floor:
Hopper v Reeve (1817) 7 Taunt 698; 129 ER 278. See also Garratt v
Dailey (1955) 279 P 2d 1091.
3.6 The word ‘application’ connotes some positive action, that is, there
must be some act rather than merely passive obstruction. In Innes v Wylie
(1844) 1 Car & Kir 257; 174 ER 800, it was alleged that the defendant, a police
officer, prevented the plaintiff from entering a room by standing in the
doorway. Denman CJ directed the jury that if the defendant had stood
‘entirely passive like a door or a wall put to prevent the plaintiff from entering
the room’, this could not amount to a battery: at Car & Kir 263; ER 803.
Offensive Contact
3.7 By the definition of ‘battery’, any bodily contact may constitute battery
if done without consent. However, the law has placed limits on the type of
contact that may give rise to a battery as the aim of battery is to protect
against unwanted contact. In general terms, to amount to a battery the alleged
interference must be offensive contact with the plaintiff’s person. The
physical contact required for common law battery was summarised in
Slaveski v Victoria [2010] VSC 441 at [241]–[242]:
Battery is an act that directly and intentionally (or negligently) causes offensive physical contact
with another’s person.
Any physical contact, however slight, is capable of constituting a battery, but the contact must
be offensive in the sense that it goes beyond that which is part of the “ordinary incidents of
social intercourse” or that which is “generally acceptable in the ordinary conduct of daily life.”
Consequently, the jostling between persons that is inevitable in public areas, such as
supermarkets, train stations, crowded buses or busy streets, is not actionable as a battery; nor is
the touching of a person in order to engage his or her attention, provided the physical contact is
reasonably necessary for that purpose and does not impose a restraint upon the person.
[footnotes omitted]
Anger or hostility
3.8 It has been said that ‘the least touching of another in anger is a battery’:
Cole v Turner (1704) 6 Mod Rep 149; 90 ER 958. This could mean that
virtually any contact with the plaintiff, no matter how trivial, would amount
to a trespass, and the extent of force used would generally be unimportant if it
was done in anger.
[page 34]
3.9 In England, an action in battery required actual hostility (Wilson v
Pringle [1987] QB 237) but since the decision of Re F (Mental Patient:
Sterilisation) [1990] 2 AC 1 at 73, this seems no longer to be the case:
In the old days it used to be said that, for a touching of another’s person to amount to a battery,
it had to be a touching “in anger” (see Cole v Turner (1794) [sic] 6 Mod 149 per Holt CJ); and it
has recently been said that the touching must be ‘hostile’ to have that effect (see Wilson v Pringle
[1987] QB 273, 253). I respectfully doubt whether that is correct. A prank that gets out of hand;
an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that
the patient has consented to it — all these things may transcend the bounds of lawfulness,
without being characterised as hostile. Indeed, the suggested qualification is difficult to reconcile
with the principle that any touching of another’s body is, in the absence of lawful excuse,
capable of amounting to a battery and a trespass.
See Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 where the plaintiff sued
for an employee of the defendant placing a hand on his shoulder to gain his
attention. Referring to Cole v Turner and Re F (Mental Patient: Sterilisation),
Sheller JA noted (at [51]–[52]) that the physical contact could be a battery
and that the lack of anger or hostility was not sufficient to conclude that there
was no battery.
Contact as part of everyday life
3.10 The law has long recognised that there are a multitude of daily
personal contacts of a trivial or inconsequential nature which must be
suffered as part of going about normal business in society: Boughey v R (1986)
161 CLR 10. The normal operation of society would collapse if individuals
could complain of trespasses based upon merely being jostled on a bus,
pushed and shoved while boarding a crowded train or while shopping or
receiving a hearty congratulatory slap on the back.
3.11 These forms of contact were at one time regarded as examples of
implied consent of the plaintiff simply by participating in society: see 6.13.
Now it is more common for such forms of contact to be treated as falling
within a general exception, embracing all physical contact that is generally
acceptable in the ordinary conduct of daily life: Collins v Wilcock [1984] 1
WLR 1172 at 1176–8 per Robert Goff LJ; Darby v Director of Public
Prosecutions (2004) 61 NSWLR 558 at [80]–[81]. The current law is reflected
in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 72–3:
Of course, as a general rule, physical interference with another person’s body is lawful if he
consents to it; though in certain limited circumstances the public interest may require that his
consent is not capable of rendering the act lawful. There are also specific cases where physical
interference without consent may not be unlawful — chastisement of children, lawful arrest,
self-defence, the prevention of crime, and so on. As I pointed out in Collins v Wilcock [1984] 1
WLR 1172, 1177, a broader exception has been created to allow for the exigencies of everyday
life — jostling in a street or some other crowded place, social contact at parties, and such like.
This exception has been said to be founded on implied consent to bodily contact of this kind.
Today this rationalisation can be regarded as artificial; and in particular, it is difficult to impute
consent to those who, by reason of their youth or mental disorder, are unable to give their
consent. For this reason, I consider it more appropriate to regard such cases as falling within a
[page 35]
general exception embracing all physical contact which is generally acceptable in the ordinary
conduct of everyday life.
In McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 at
[99], the exception was summarised in the following terms:
Mere physical contact is insufficient to establish either of these torts [assault and battery]. Under
the common law “commonplace, intentional but non-hostile acts such as patting another on the
shoulder to attract attention and pushing between others to alight from a crowded bus” are “if
committed inoffensively” not sufficient to constitute battery (see Boughey v R (1986) 161 CLR 10
at 24–26). Any general principle that “any touching of another person, however slight may
amount to a battery”, is subject to “a general exception embracing all physical contact which is
generally acceptable in the ordinary conduct of daily life” (see Darby v Director of Public
Prosecutions (2004) 61 NSWLR 558 at [80]–[81] quoting Collins v Wilcock [1984] 3 All ER 374
at 378).
See Secretary, Department of Health and Community Services v J W B & S
M B (Marion’s Case) (1992) 175 CLR 218 at 233 per Mason CJ, Dawson,
Toohey and Gaudron JJ. In Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at
[55], above, the court held that the conduct of the employee in the
circumstances was for the purpose of gaining the plaintiff’s attention and was
‘generally acceptable in the ordinary conduct of daily life’.
3.12 Some would view the exception as an undesirable development as it
suggests there is some objective form of behaviour which all members of
society must tolerate. However, the exception does raise the question of what
is the objective standard? Should people have to suffer unwelcome physical
contact simply because this is regarded as generally acceptable behaviour in
ordinary daily life? Should schoolboys have to suffer initiations, victimisation
or other horseplay because that is thought to be the sort of thing which
adolescents are wont to do? Changing social values also render offensive
today conduct which was apparently acceptable in the past, including the
many forms of sexual harassment.
Lack of Consent
3.13 The lack of the plaintiff’s consent to the application of force is not
clearly expressed to be an element of common law battery: see Christopherson
v Bare (1848) 116 ER 554; Carter v Walker (2010) Aust Torts Reports ¶82-076
at [215]; Marion’s Case (1992) 175 CLR 218 at 311. Consent may be raised as
a defence against a claim in battery (McNamara v Duncan (1971) 26 ALR
584); however, in Christopherson v Bare and Sibley v Milutinovic (1990) Aust
Torts Reports ¶81-013 it was held that the onus of proving the lack of consent
to the contact was with the plaintiff. The issue of whether lack of consent was
an element of battery was examined in White v Johnston (2015) 87 NSWLR
77 (respondent alleged that dental treatments by appellant dentist amounted
to a battery) with Leeming JA concluding, in obiter, that it was the plaintiff to
prove the absence of valid consent.
However, see Dean v Phung [2012] NSWCA 223 at [48] where the court
stated that consent was a defence to trespass to person. In that case, the
plaintiff alleged that consent to dental treatment was obtained by fraud (as it
was represented that the procedures were reasonably necessary when they
were not) and therefore not valid. The court held that ‘where a real issue has
been raised as to the existence of a valid consent, the burden of proof will lie
on
[page 36]
the defendant practitioner to establish that the procedure was undertaken
with consent’: at [64].
3.14 The plaintiff’s consent may be express or implied and whether there
was consent is a question of fact: Hunter and New England Area Health
Service v A by his Tutor T (2009) 74 NSWLR 88 at [40]. For a detailed
examination of consent to trespass to person, see Chapter 6.
Knowledge of the Contact
3.15 Knowledge is not an essential element of battery on the part of either
party. A person kissed, touched or otherwise interfered with while asleep, or
an unconscious person kicked by an assailant, will be entitled to sue, although
each had no knowledge of the interference at the time.
A defendant who does not know of the contact with the plaintiff may still
be liable, for example, if the defendant in a car ran down the plaintiff
believing the object was not a person: Law v Visser [1961] Qd R 46.
Fault
3.16 There is no liability in battery unless the interference was voluntary
and the defendant intended the impact or caused it negligently: Cole v Turner
(1704) 6 Mod Rep 149; 90 ER 958; Exchange Hotel v Murphy [1947] SASR
112. Therefore, if the defendant intends to strike one person but hits the
plaintiff instead, they will be at fault and liable in battery: Livingstone v
Ministry of Defence [1984] NILR 356 (CA); Bici v Ministry of Defence [2004]
EWHC 786 (QB). The interference must be voluntary in the sense that it
must be ‘the mind prompting and directing the act’: Morris v Marsden [1952]
1 All ER 925 at 927. In Duyvelshoff v Dionysuis (1990) 13 Qld Lawyer 10, the
defendant argued that he was not at fault as when he threw an object at the
plaintiff he was mentally unstable. The court held that although the medical
evidence noted that the defendant’s self-control was impaired, it was not
destroyed and as he knew the nature and the quality of his act at the time he
committed it, the defendant was liable: see 2.15.
3.17 It is not necessary that the defendant intended to harm the plaintiff:
Cowell v Corrective Services Commission of New South Wales (1988) 13
NSWLR 714 at 743. Fault is judged in relation to:
whether contact with the plaintiff was intended; or
the contact was the substantially certain result of the defendant’s act; or
the contact was the result of the defendant’s reckless disregard or lack
of care.
See Carter v Walker (2010) Aust Torts Reports ¶82-076 at [215].
3.18 Many judges tend to regard battery as an intentional tort only and the
more substantive negligent contacts are adequately disposed of in
independent negligence actions: Australian National Airways Ltd v Phillips
[1953] SASR 278; Hackshaw v Shaw (1984) 155 CLR 614 at 618–19. In
practice, plaintiffs tend to sue in trespass for intentional acts and in
negligence for acts that are unintentional: see 2.9.
[page 37]
3
Assault
3.19 It is common for the term ‘assault’ to be used to describe what is in
legal terms a battery: see, for example, Trevitt v NSW TAFE Commission
[2001] NSWCA 363 at [42]. See also 3.37, as in Queensland the application of
the definition of assault in s 245 of the Criminal Code in civil cases leads to
what is in fact a battery under the common law being called an assault.
However, at common law, assault occurs when one person creates in
another an apprehension of imminent harmful or offensive direct contact and
there is a reasonable belief that they have the ability to carry out that threat.
The tort of assault involves:
a threat of imminent harmful or offensive contact;
a reasonable belief on the part of the plaintiff that the defendant has
the ability to carry out the threat; and
intention on the part of the defendant.
Threat
3.20 To be an assault there must be a positive act by the defendant. This
may be a threatening gesture or act, alone or accompanied by a verbal threat.
Imminent
3.21 As it is a trespass action, the threat must be one of imminent harm. In
R v Gabriel [2004] ACTSC 30 at [105], the example was given that ‘a recipient
of a threat to punch … delivered by a telephone call could not reasonably
believe that a punch was imminent’. Imminent does not necessarily equate
with ‘without delay’, but neither does it encompass a future remote time: at
[112]. All of the circumstances are taken into account. For example, in Zanker
v Vartzokis (1988) 34 A Crim R 11, the plaintiff was in the defendant’s
moving car when the defendant stated: ‘I am going to take you to my mate’s
house. He will really fix you up’. The trial judge held that there was no assault
as there was no fear of immediate violence. On appeal the plaintiff was
successful, White J stating (at 14):
The threat was, it is true, to be carried out in the future but there was no indication by the
defendant whether the “mate’s house” was around the next corner or several or more streets
away in the suburban area. A present fear of relatively imminent violence was instilled in her
mind from the moment the words were uttered and that fear was kept alive in her mind, in the
continuing present, by continuing progress, with her as prisoner, towards the house where the
feared violence was to occur.
Mere words
3.22 Originally, it was thought that mere words without any threatening
gesture could not amount to an assault: Tuberville v Savage (1669) 1 Mod Rep
3; 86 ER 684. However, this proposition has been questioned1 and now if the
words constitute a real threat of imminent harm, it may be an assault.
[page 38]
In Barton v Armstrong [1969] 2 NSWR 451, the defendant, who was a highprofile politician, threatened the plaintiff with violence to get him to sign a
deed giving effect to a number of commercial deals. The plaintiff signed the
deed as a result of those threats, some of which were made over the telephone.
The plaintiff sued the defendant for threats of violence which were alleged to
constitute an assault. The defendant argued that the threats could not
constitute an assault, as they were made over the telephone and were merely
words. Taylor J (at 455) held that telephone threats could constitute an
assault:
[I]t is clear from the many authorities cited on this subject that mere words themselves are not
sufficient to constitute an assault and that the threatening act must put the victim in immediate
fear or apprehension of violence. For these reasons [counsel for the defendant] contended that
all threats over the telephone could not in law be capable of constituting an assault. I am not
persuaded that threats uttered over the telephone could not in law be capable of constituting an
assault. I am not persuaded that threats uttered over the telephone are to be properly categorized
as mere words. I think it is a matter of the circumstances. To telephone a person in the early
hours of the morning, not once but on many occasions, and to threaten him, not in a
conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could
say was well calculated to not only instil fear into his mind but to constitute threatening acts, as
distinct from mere words.
In Zanker v Vartzokis (1988) 34 A Crim R 11 at 16, White J, referring to
Barton v Armstrong, questioned whether mere words could amount to an
assault if the plaintiff was at liberty. The decisions of Barton and Zanker were
questioned in Knight v R (1988) 35 A Crim R 314 (threats of violence by
telephone) and R v Gabriel (2004) 182 FLR 102. From these cases it appears
that it may be argued that mere words amount to an assault if the threat is
one of imminent harm, not at some future time. This means that there must
be evidence of the imminence of physical harm, it is not sufficient that the
plaintiff immediately apprehends harm upon being threatened: Balven v
Thurston [2013] NSWSC 210 at [35]. In Slaveski v Victoria [2010] VSC 441 at
[240], the judge reviewed the above cases and concluded:
… there is no rule preventing a threat of physical harm which is not accompanied by any
physical contact — such as a threat made over the telephone or by email or other electronic
means — from constituting an assault. Such a threat can constitute an assault provided that all
the elements of the tort are established, including that the threat is to inflict immediate physical
harm.
See also Balven v Thurston, where threats were made by text messages and
on appeal it was held that the threats were ‘expressed in an indeterminate
manner’: at [37]. Although the evidence was that there was an apprehension
of harm, the threats suggested harm would occur at an indeterminate time in
the future and therefore there was no assault.
3.23 In R v Ireland [1998] AC 147, the House of Lords considered the issue
of whether repeated telephone calls to three women by the defendant, in
which the defendant remained silent, could amount to assault. The decision
of Taylor J in Barton v Armstrong was approved, Lord Steyn holding (at 162):
The proposition that a gesture may amount to an assault, but that words can never suffice, is
unrealistic and wholly indefensible. …
That brings me to the critical question whether a silent caller may be guilty of an assault. The
answer to this question seems to me to be “Yes, depending on the facts.” It involves questions
[page 39]
of fact within the province of the jury. After all, there is no reason why a telephone caller who
says to a woman in a menacing way “I will be at your door in a minute or two” may not be guilty
of assault if he causes his victim to apprehend immediate personal violence. Take now the case
of the silent caller. He intends his silence to cause fear and he is so understood. The victim is
assailed by uncertainty of his intentions. Fear may dominate her emotions, and it may be the
fear that the caller’s arrival at her door may be imminent. She may fear the possibility of
immediate personal violence. As a matter of law the caller may be guilty of an assault; whether
he is or not will depend on the circumstances and in particular on the impact of the caller’s
potentially menacing call or calls on the victim.
Lord Hope of Craighead agreed, stating (at 166):
He was using his silence as a means of conveying a message to his victims. This was that he
knew who and where they were, and that his purpose in making contact with them was
malicious as it was deliberate. In my opinion silent telephone calls of this nature are just as
capable as words or gestures, said or made in the presence of the victim, of causing an
apprehension of immediate and unlawful violence.
In contrast, the decision of Balven v Thurston [2013] NSWSC 210 held
there was no assault despite evidence that the person making the threats had
entered the victim’s home, destroyed property and had followed his victim,
the court holding that this ‘bore no necessary relationship to the infliction of
harm’: at [39].
Ability to Carry Out the Threat
Knowledge of threat
3.24 For there to be an assault, the plaintiff must be aware of the threat. As
the tort involves a reasonable expectation of infliction of force, some
knowledge grounding the expectation is necessary otherwise there can be no
apprehension: Police v Greaves [1964] NZLR 295. Therefore, to point a gun at
a person from behind without his or her knowledge would not normally be
an assault unless some accompanying words were used to generate the
apprehension. Similarly, to threaten a sleeping or unconscious person cannot
be an assault even if the person later is made aware of the threat. In R v
Phillips (1971) 45 ALJR 467, the defendant had pushed a girl to the ground,
causing her to strike her head and render her unconscious. He dragged her
body to the edge of a river and left her there. When the tide came in, she
drowned. The court considered whether there had been assault by moving
her to the edge of the river. Barwick CJ stated (at 472):
The deceased at all times relevant in this connection was unconscious. There was thus no
question of assault in the common law sense of the word. Such an assault necessarily involves
the apprehension of injury or the instillation of fear or fright.
Actual or apparent ability
3.25
For the interference to amount to an assault, the plaintiff must
perceive on reasonable grounds that the defendant has the ability to carry the
threat into effect: Zanker v Vartzokis (1988) 34 A Crim R 11; R v Gabriel
(2004) 182 FLR 102.
In Stephens v Myers (1830) 4 Car & P 349; 172 ER 735, the defendant
attended a parish meeting which was chaired by the plaintiff. The meeting
resolved that the defendant should
[page 40]
be ejected from the meeting. The defendant said that he would rather pull the
plaintiff out of the chair than be ejected from the hall and he began to
advance towards the plaintiff with his fists clenched. The church warden
stopped the defendant’s advance when he was not yet close enough to hit the
plaintiff. In instructing the jury, Tindal CJ said:
It is not every threat, when there is no actual personal violence, that constitutes an assault, there
must, in all cases, be the means of carrying the threat into effect: at Car & P 349–50; ER 735.
3.26 If the defendant does not have the actual ability to carry out the
threat, but the plaintiff has in the circumstances a reasonable belief that they
do, this may also be an assault. For example, the pointing of a loaded gun may
be an assault as would pointing an unloaded gun if the defendant is acting as
if it is loaded and the plaintiff is not aware that it is not loaded. In R v St
George (1840) 9 Car & P 483, the opinion was expressed that it was an assault
to present any pistol whether loaded or not, if the person pointed at believed
the weapon was loaded. A similar view was expressed in R v Hamilton (1891)
12 LR (NSW) 111 at 114. In Brady v Schatzel; Ex parte Brady [1911] St R Qd
206, the defendant pretended to load a shotgun in the presence of the plaintiff
and pointed it at them. The court held that this amounted to an assault as the
plaintiff believed on reasonable grounds that the defendant could carry out
the threat.
Apprehension not fear
3.27 The plaintiff’s apprehension of force is assessed according to the
standard of the reasonable person. The term ‘apprehension’ does not refer to
the plaintiff being in fear, but having the belief or expectation that force is
about to be applied to their person: Brady v Schatzel; Ex parte Brady [1911] St
R Qd 206. In ACN 087528774 Pty Ltd (formerly Connex Trains Melbourne Pty
Ltd) v Chetcuti (2008) 21 VR 559 at [16], Hargrave AJA summarised the law
as:
The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be
carried out forthwith (Rixon v Star City Pty Ltd (2001) 53 NSWLR 98). It is not necessary for the
plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff
apprehends that the threat will be carried out without his or her consent (Brady v Schatzel; Ex
parte Brady [1911] St R Qd 206 at 208).
The apprehension in the mind of the plaintiff must be objectively reasonable.
3.28
It ought to be sufficient if the threat would have aroused an
expectation of physical interference in the mind of a reasonable person not
afflicted with exaggerated fear, unless the victim’s peculiar sensitivity was
known to the tortfeasor: Bunyan v Jordan (1937) 57 CLR 1; Brady v Schatzel
at 207.
Conditional threat
3.29 If the words of the threat make it clear that the plaintiff is in no
danger of imminent contact, there can be no assault as there can be no
reasonable apprehension of force. For example, in Tuberville v Savage (1669)
1 Mod Rep 3; 86 ER 684, the defendant had his hand on his sword as he told
the plaintiff ‘were it not assize time, I would not take such language from you’
(assize time was the circuit of the criminal court). It was held that these
words, despite the gesture of the hand on the sword, made it clear that the
defendant did
[page 41]
not intend to use the sword upon the plaintiff. A more modern example
would be, ‘if that security guard was not standing right there, I would punch
you’. Although there is the threat to punch, the condition makes it clear that
it will not be carried out.
3.30
However, a conditional threat of the application of force unless
something is done (for example, ‘get off my property or I will shoot you’) may
be an assault if the offered alternative is obedience to an unacceptable
command. In Police v Greaves [1964] NZLR 295, the defendant, threatening a
police constable with a carving knife, informed the constable, ‘You come one
step closer and you will get this straight through your guts’. The court held
that there was an assault as there was a threat of imminent and direct force
unless the constable ceased lawful acts that were within the course of his
duties.
Fault
3.31 Although fault in trespass is intention or carelessness, to be an assault
there must be:
… A subjective intention on the part of the defendant that the threat will create in the mind of
the plaintiff an apprehension that the threat will be carried out forthwith [Rosza v Samuels
[1969] SASR 205 at 207; Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at [57]–[58]]. It is not
necessary to prove that the defendant in fact intends to carry out the threat [Rixon v Star City]:
ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR
559 at [16].
See also Hall v Foneca [1985] WAR 309.
3.32 Therefore, there will be liability for assault even if the defendant
knows that the gun being pointed is unloaded, as it was done with the
intention of causing the apprehension: McClelland v Symons [1951] VLR 157;
MacPherson v Beath (1975) 12 SASR 174 at 177 per Bray CJ. However, to
recklessly cause an apprehension of immediate contact may be sufficient:
Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 at 444; R v
Bailiff [2002] ACTSC 79 at [21].
Stalking and Domestic Violence
3.33 Some interferences with the person may fall short of assault or battery
and it is necessary to look to criminal law for redress rather than a civil
action. For example, stalking a person does not involve the application of
force nor a threat of imminent harm. Legislation exists making it a criminal
offence to stalk another: see, for example, Crimes Act 1900 (ACT) s 35(1);
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1); Criminal
Code (NT) s 189(2); Criminal Code (Qld) s 359E(1); Criminal Law
Consolidation Act 1935 (SA) s 19AA(2); Criminal Code (Tas) s 192(1);
Crimes Act 1958 (Vic) s 21A(1); Criminal Code (WA) s 338E(1).
3.34 In most jurisdictions it is possible for a victim to be compensated
through the compensation to victims of crime legislation: see Crimes
(Sentencing) Act 2005 (ACT); Victims Rights and Support Act 2013 (NSW);
Sentencing Act 1995 (NT); Victims of Crime Assistance Act 2009 (Qld);
Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas);
Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA).
3.35 Specific legislation or provisions in the criminal legislation also exist
in respect of domestic violence, including the threat of domestic violence. The
legislation allows protection orders to be made by the Magistrates Courts or
the equivalent: see Family
[page 42]
Law Act 1975 (Cth); Domestic Violence and Protection Orders Act 2008
(ACT); Crimes (Domestic and Personal Violence) Act 2007 (NSW);
Domestic and Family Violence Act 2007 (NT); Domestic and Family
Violence Protection Act 2012 (Qld); Intervention Orders (Prevention of
Abuse) Act 2009 (SA); Justices Act 1959 (Tas); Crimes (Family Violence) Act
1987 (Vic); Restraining Orders Act 1997 (WA).
3.36 Also related to the protection of bodily integrity is the invasion of a
person’s privacy. The tort of privacy is still a developing area of law in many
common law countries including Australia. However, the developing tort is
not a trespass action as to establish an action in breach of privacy — the
plaintiff must have suffered loss: see Chapter 7.
4
Queensland Position on Common Law
Assault and Battery
Definition of Assault
3.37 In Queensland, the courts have simply assumed that the Criminal
Code definition of ‘assault’ in s 245 applies to civil actions for trespass to
person: Origliasso v Vitale [1952] St R Qd 211; Grehan v Kann [1948] QWN
40; King v Crowe [1942] St R Qd 288. Therefore, when a civil action is taken
by a plaintiff in Queensland for a battery or an assault, the definition of
assault in s 245 of the Criminal Code (Qld) is used rather than the common
law definitions of those tortious actions.
3.38 Although the criminal definition of assault is applied to civil cases, the
onus of proof remains at the civil standard — on the balance of probabilities:
Grehan v Kann [1948] QWN 40. In many of the earlier civil actions, the
criminal standard of proof of beyond reasonable doubt was erroneously
required in civil actions: King v Crowe [1942] St R Qd 288; Origliasso v Vitale
[1952] St R Qd 211. In 1965, the High Court specifically disapproved the
earlier Queensland decisions requiring the criminal standard in civil actions:
Rejfek v McElroy (1965) 112 CLR 517.
3.39 In practice, the use of the s 245 definition of assault does not change
the law of assault and battery, particularly as in Queensland there are very few
civil actions for trespass to person because magistrates in criminal
proceedings are empowered, upon conviction, to order payment of
compensation to the injured person: see Victims of Crime Assistance Act
2009 (Qld).
3.40 The statutory definition of assault in s 245 of the Criminal Code (Qld)
(the Criminal Code) incorporates both assault and battery at common law.
Section 245 provides:
Definition of assault
(1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the
person of another, either directly or indirectly without his consent, or with his consent if
the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens
to apply force of any kind to the person of another without his consent, under such
circumstances that the person making the attempt or threat has actually or apparently a
present ability to effect his purpose, is said to assault that other person, and the act is called
an assault.
[page 43]
(2) In this section —
applies force includes the case of applying heat, light, electrical force, gas, odour, or any
other substance or thing whatever if applied in such a degree as to cause injury or personal
discomfort …
Differences Between the Common Law and s 245
Direct and indirect application of force
3.41 One distinction between the common law definitions of assault and
battery and the definition of ‘assault’ in s 245 is that the Criminal Code
definition includes the application of indirect force. Under the common law,
an indirect application of force would not amount to a trespass: see 2.13.
3.42 Lack of consent Section 245 clearly includes the lack of consent of
the plaintiff to the application of force. Therefore, unlike the common law,
there is no debate as to whether the onus is on the plaintiff to prove their lack
of consent when proving the action: see 3.13. The issue of consent was
considered in the case of Horan v Ferguson [1995] 2 Qd R 490. The court held
that consent in s 245 of the Criminal Code included not only express but also
implied consent that arises from the circumstances. McPherson JA stated (at
495):
It is scarcely possible to restrict the word “consent” in s 245 to a consent that is conveyed in
express words. It plainly includes consent that is tacit or implied. Just as the absence of consent
may be inferred from circumstances, so too equally its presence may be inferred.
Defences
3.43 The most important difference is the application of the defences
contained in the Code to civil actions of battery and assault. The Criminal
Code makes certain assaults lawful by providing a defence, and in these cases
a civil action will not be available: Criminal Code Act 1899 (Qld) s 6. The
defences to assault in the Criminal Code correlate with the defences available
under the common law, except in respect of the defence of provocation.
3.44 Section 269 of the Criminal Code provides that ‘[a] person is not
criminally responsible for an assault committed upon a person who gives the
person provocation for the assault’. Provocation is not recognised as a
defence at common law to assault or battery, but evidence of provocation may
prevent an award of, or reduce, the amount of exemplary damages: Fontin v
Katapodis (1962) 108 CLR 177; Farah Constructions Pty Ltd v Say-Dee Pty Ltd
(2007) 230 CLR 89; 236 ALR 209 at [135]; see 6.35. Due to the courts’ use of
the statutory definition of assault, the defence of provocation in s 269 may be
used as a complete defence in a civil action for assault in Queensland.2 As
Macnaughton J expressed it in White v Connolly [1927] St R Qd 75 at 77:
I am of the opinion that the defence of provocation as an excuse for assault may be pleaded in a
civil action for damages for assault as well as in a criminal proceeding for the offence of assault.
[page 44]
The case of Lowry v Barlow [1921] NZLR 316 states the law of New Zealand, which is the same
as the English law. In Queensland, however, the Criminal Code has made a change in our law,
and I refuse to strike out the two paragraphs [pleading provocation].
3.45 Other statutory Code defences in Queensland that may apply are:
self-defence (ss 271 and 272: see 6.32), defence of another (s 273: see 6.33),
defence of moveable property (s 275) and defence of possession of land or
premises: ss 277, 278.
5
False Imprisonment
3.46 In McFadzean v Construction, Forestry, Mining and Energy Union
(2007) 20 VR 250 at [41], the court noted that ‘the essence of the action of
false imprisonment is the compelling of a person to stay at a particular place
against his or her will’. As personal liberty is considered by the law to be one
of the most fundamental common law rights, any restraint placed on personal
liberty that is not warranted by law is false imprisonment: Trobridge v Hardy
(1955) 94 CLR 147. In Ruddock v Taylor (2003) 58 NSWLR 269 at [3],
Spigelman CJ stated:
The protection of personal liberty of individuals has been a fundamental purpose of the
common law for centuries. The tort of trespass in the form of false imprisonment, has been one
of the ways in which that protection has been provided throughout that period.
3.47 As such, the period of the false imprisonment is not relevant to
establishing the action: Watson v Marshall (1971) 124 CLR 621 at 632. In
Roddan v Corrections Corporation of Australia Pty Ltd [2001] WASC 196 at
[27], it was stated:
Although the period of wrongful detention was short [55 minutes], I am not willing to dismiss
the plaintiff’s action as trivial. Wrongful imprisonment, even for a short period, is a serious
wrong.
3.48 In Herring v Boyle (1834) 1 Cr M & R 377; 149 ER 1126, it was held
that absence of knowledge of restraint prevented the plaintiff succeeding;
however, in Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, it
was held that knowledge of restraint was not necessary, although this factor
might diminish the damages awarded.
In Murray v Ministry of Defence [1988] 1 WLR 692; 2 All ER 521, the
House of Lords confirmed that knowledge of the restraint is not an essential
element of false imprisonment. In that case, the plaintiff was requested by
soldiers, who arrived at her house at 7.00 am, to get dressed. Other occupants
of the house were assembled in a single room pursuant to directions made
under statute. After the plaintiff dressed, she went downstairs at 7.30 am and
was formally advised, pursuant to the legislation, that she was under arrest.
She was later taken to a screening centre for questioning but released an hour
later. She sued for false imprisonment between 7.00–7.30 am and Lord
Griffiths, delivering the advice of the House of Lords, accepted there could be
imprisonment without knowledge.
3.49 In R v Awang [2004] 2 Qd R 672, a criminal case concerning the
offence of deprivation of liberty, McMurdo P cited Meering v Grahame-White
Aviation Co Ltd and Murray v Ministry of Defence as authorities for the
proposition that knowledge was not necessary. His Honour stated (at [2]):
The offence of deprivation of liberty under s 355 Criminal Code is based on the common law
crime of false imprisonment. The essence of the offence is the deprivation of liberty of the
[page 45]
complainant. The phrase “or otherwise” in s 355 recognises, as the common law recognised, that
people may be deprived of their liberty not only against their will but also where the deprivation
is achieved by fraud, done without knowledge or the victim lacks capacity. An example would be
to lock a sleeping or intoxicated woman in a room to prevent her from leaving should she try.
Even if she did not know that the offender had locked her in and did not try to leave, she would
have been deprived of her liberty under s 355.
See also Walter v Alltools Ltd (1944) 171 LT 371 (a person’s humiliation is
not lessened by only hearing about imprisonment afterwards from others and
that false imprisonment impacts not only upon a person’s liberty but also on
his or her dignity and reputation).
3.50
To establish the tort of false imprisonment there must be:
a direct interference;
restraint of the plaintiff in all directions; and
the defendant at fault.
Direct Interference
3.51 As a trespass, the interference with the plaintiff’s liberty must be a
direct act of the defendant: Sadler v Madigan [1998] VSCA 53 at [27]–[28]. If
a plaintiff is restrained by the defendant upon the information of another, it
will depend upon the circumstances as to which party directly interfered with
the plaintiff’s liberty. For example, it is sometimes difficult to determine
whether the imprisonment was by police or a person providing police with
information or requesting an arrest.
This issue will be determined upon whether the informant citizen left the
police to exercise some independent discretion to arrest (Dickenson v Waters
Ltd (1931) 31 SR (NSW) 593), that is, whether it was the citizen or the police
who directly imprisoned the plaintiff.
This principle is stated in Cubillo v Commonwealth (2001) 183 ALR 249.
The facts were that the appellant was removed from her family in 1947 at the
age of nine and detained at Retta Dixon Home, which was run by the
Aborigines Island Mission, until 1953. At the time, the Commonwealth had
in place a policy that removed part-Aboriginal children from their homes.
This policy was administered and implemented by the Director of Native
Affairs, the Director having no right to exercise any personal judgment based
on the circumstances. The appellant alleged that she had been falsely
imprisoned by the Commonwealth of Australia as the Commonwealth had
actively promoted or caused her imprisonment. The Federal Court held (at
313):
… to be liable for false imprisonment, it must be the act of the defendant (respondent), or his or
her agent, that imprisons the plaintiff or “the defendant must be active in promoting and
causing the imprisonment”: Myer Stores [Ltd] v Soo [[1991] 2 VR 597] at 629 per McDonald J. A
person who is active in promoting and causing the imprisonment is jointly and severally liable
with the person who effects the imprisonment, ordinarily because their acts are done in
furtherance of a common design: Myer Stores [Ltd] v Soo at 617 per O’Bryan J.
On the evidence available to the court, the appellant failed to establish that
the Commonwealth had actively promoted or caused the imprisonment.
The person responsible indirectly, that is, the person who actively
promotes and causes the false imprisonment, may be liable for malicious
prosecution, an action on the case: see 7.8.
[page 46]
Restraint in All Directions
3.52 Although the trespass refers to imprisonment, it not necessary that
there be an actual imprisonment of the plaintiff. In McFadzean v
Construction, Forestry, Mining and Energy Union [2004] VSC 289 at [88], it
was noted that ‘whilst restraint must be total and whilst false imprisonment
involves restrain[t] at or in some identifiable place, the concept of
incarceration has developed an expanded meaning’.
3.53
What is important is that the deprivation must consist of a
comprehensive limitation of freedom in all directions. A mere obstruction of
movement in one direction only is not sufficient: Bird v Jones (1845) 7 QB
742; 115 ER 642; Kuchenmeister v Home Office [1958] 1 QB 496. In Bird v
Jones, part of a public road was enclosed to permit spectators to pay a fee for
seating to view a boat race. The plaintiff, who wished to walk along that
portion of the road, was refused access and two police officers prevented him
from passing in that one direction. He could stay where he was or go in any
other direction, including along the other side of the road. Since escape was
open to him in all directions except the particular route blocked off by the
seating enclosure, there was no imprisonment. Patterson J stated:
[I] cannot bring my mind to the conclusion that, if one man merely obstructs the passage of
another in a particular direction … leaving him at liberty to stay where he is or to go in any
other direction if he pleases, he can be said thereby to imprison him … [I]mprisonment is, as I
apprehend, a total restraint of the liberty of the person, for however short a time, and not a
partial obstruction of his will, whatever inconvenience it may bring on him: at QB 751–2; ER
672.
See also Myer Stores Ltd v Soo [1991] 2 VR 597, where the respondent was
escorted through a department store to a security room for questioning. The
court held that it was false imprisonment from the time the respondent was
approached in the store. It was noted (at 614): ‘The respondent was not
invited to proceed at his own pace and by his own route to the security room;
it was intended that he should proceed there under escort’.
No reasonable means of escape
3.54 For there to be total restraint in all directions, there must be no
reasonable means of escape: R v Macquarie (1875) 13 SCR (NSW) 264;
Burton v Davies [1953] St R Qd 26. R v Macquarie involved the plaintiff being
cast adrift in a boat; Burton v Davies involved a car being driven at speed. In
each case it was held that there was no reasonable means of escape. In Burton
v Davies, Townley J stated (at 30):
If I lock a person in a room with a window from which he may jump to the ground at the risk of
life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap
from the window.
In McFadzean v Construction, Forestry, Mining and Energy Union (2007)
20 VR 250, logging contractors blockaded demonstrators camping in the area
by setting up an official picket line. It was possible for the demonstrators to
get out of their camp by walking through the bush. The respondent also
offered to guide the demonstrators from the camp site if they agreed not to
engage in further protest against the logging. In determining whether egress
through the bush was a reasonable means of escape, the Court of Appeal
stated that there were four factors to take into account: ‘threat or danger to
the self; threat or danger
[page 47]
to property (including property of others); distance and time; and legality’: at
[55]. The trial judge had considered the physical ability of the appellants, their
clothing and footwear and the terrain in terms of condition and distance, and
came to the conclusion that egress through the bush was a reasonable means
of escape. The Court of Appeal agreed: at [81].
3.55 If the means of escape is not apparent and is not known to the
plaintiff, there is no reasonable means of escape.
Physical restraint not necessary
3.56
The Appeal Court in McFadzean v Construction, Forestry, Mining and
Energy Union (2007) 20 VR 250 at [23] approved the trial judge’s observation
that:
… restraint must be total, although it need not imply the use of physical force — it is sufficient if
there be submission to the control of another after being given to understand that without
submission there will be compulsion.
In Ferguson v State of Queensland [2007] QSC 322 at [13], it was explained
that ‘it is necessary to show that the plaintiff has submitted to the defendant’s
power. It is not necessary however for the defendant to have used force and
acts or words are sufficient where a plaintiff believes that force would be used
if he does not submit’. Therefore, submission may come from a threat of
violence or a belief on the part of the plaintiff that the defendant has the legal
authority to restrain their movement.
3.57 Threat Commission of the tort of false imprisonment often, although
not necessarily, involves an assault, that is, the submission to the control of
the other is procured by threats of force. Therefore, restraint may arise from
mere words if those words amount to an assault, that is, a threat of imminent
harm. The threat may be against the plaintiff, against a person known to the
plaintiff or valuable property: McFadzean v Construction, Forestry, Mining
and Energy Union (2007) 20 VR 250 at [23] (approving [2004] VSC 289 at
[90]). In R v Garrett (1988) 50 SASR 392, threats were made against the
plaintiff and another by holding a knife their throat. The court held (at 402):
Restraint of liberty is put upon a person not only by actual physical restraint, but also by threats
to that person or threats to another.
3.58 Assertion of authority Restraint may be procured by assertion of
legal authority: Symes v Mahon [1922] SASR 447; Watson v Marshall (1971)
124 CLR 621. In Symes v Mahon, the plaintiff was falsely identified as a
wanted person and was requested by a uniformed officer to accompany him
on public transport to a police station. The circumstances were sufficient to
justify false imprisonment simply by assertion of authority even though no
actual restraint was used — the plaintiff believed that he had to comply with
the officer’s request. Murray CJ stated (at 453):
In a case of this description, where there has been no application of physical force to the person
alleging imprisonment, there must be evidence of complete submission by him to the control of
the other party … reasonably thinking that he had no way of escape which could reasonably be
taken by him.
See also Bulsey v Queensland [2015] QCA 187 (plaintiff was falsely
imprisoned as she followed police commands to show them around the house
and sit on a couch and not move).
[page 48]
3.59 Provided the plaintiff believes, and was induced by the defendant to
believe, that an attempt to escape would be restrained, it will amount to
imprisonment: Watson v Marshall (1971) 124 CLR 621 at 640. In Myer Stores
Ltd v Soo [1991] 2 VR 597, it was held that there was false imprisonment of
the plaintiff while held in an interview room even though the door to the
room was open and the plaintiff had not been physically restrained. As the
plaintiff believed he had no choice but to remain in the room, there was total
restraint by the assertion of authority. However, in Whittaker v Child Support
Registrar (2010) 264 ALR 473, it was held that there was no false
imprisonment when the plaintiff, who was subject to a departure prohibition
order of the Family Court, was detained in the departure hall at Sydney’s
international airport by customs officers. The Federal Court held that the
plaintiff was able to move freely within the departure lounge, but could not
pass through passport control. The court held that it was the plaintiff’s desire
to pass through passport control to board the plane which prevented him
from leaving, not necessarily the belief he could not leave: at [185].
See also Darcy (bht Aldridge) v New South Wales [2011] NSWCA 413,
where the court held that the appellant had been detained even though she
was able to leave the residential centre which accommodated and treated
persons with intellectual or developmental disabilities. As she could not leave
without permission and was obliged to return at the end of her sojourn,
Whealy JA stated (at [154]):
Although the “total restraint” imposed on Ms Darcy by her continued detention at [the
residential centre] bears no similarity to what might conventionally be described as
“imprisonment”, it was detention, in my opinion, nevertheless.
Fault
3.60 Due to the nature of the trespass, restraint of the plaintiff, generally
the imprisonment must be intentional. However, as in Australia fault in
trespass may be intentional or a lack of care (see 2.15) an action may succeed
if the imprisonment was due to the defendant’s negligence. There is some
disagreement as to whether negligence is sufficient, but to allow negligence as
evidence of fault would be in accordance with the function of the tort —
protection of a person’s fundamental right to liberty.3
Lawful Justification
3.61 In Darcy (bht Aldridge) v New South Wales [2011] NSWCA 413 at [2],
it was stated:
The question of lawful justification for the detention of a person is a question of the utmost
importance. It involves the recognition of the importance of the liberty of the subject, an aspect
of society and human rights recognised, indeed cherished, by the common law.
Upon a plaintiff establishing imprisonment, the defendant then bears the
onus of proving lawful justification or excuse to avoid liability. In Ruddock v
Taylor (2005) 222 CLR 612; 221 ALR 32 at [140], Kirby J stated:
Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad
faith, is irrelevant to the existence of the wrong. This is because the focus of this civil
[page 49]
wrong is on the vindication of liberty and reparation to the victim, rather than upon the
presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves
that his or her imprisonment was caused by the defendant therefore has a prima facie case. At
common law it is the defendant who must then show lawful justification for his or her actions.
[footnotes omitted].
See also Ferguson v State of Queensland [2007] QSC 322 at [14].
3.62
The fact that a body has authority to detain persons does not
necessarily mean that there can be no claim in false imprisonment.
Furthermore, merely because a person enters a place voluntarily does not
prevent a claim in false imprisonment if restrained from leaving without
lawful excuse or authority: Vignoli v Sydney Harbour Casino (2000) Aust
Torts Reports ¶81-541.
Right to release governed by contract
3.63 If one person induces another to put himself or herself in a place
which it is impossible to leave without assistance, a refusal to give assistance
when expectation has been given that it would be forthcoming, will constitute
false imprisonment. However, if the person enters a place voluntarily, but the
right to release is governed by some licence or contract, there is consent to the
restriction: Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379. A
refusal to release at a time or in a manner other than that reasonably agreed to
may not be actionable. In Herd v Weardale Steel Coke and Coal Co Ltd [1915]
AC 67, an underground miner agreed to spend specified shifts down a mine,
and refusal to take him to the surface until the end of the shift did not amount
to false imprisonment.
Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 concerned a
potential traveller on a ferry who agreed to pay a charge to leave a wharf.
Having missed his ferry, he attempted to leave without paying the fee and was
restrained. On appeal from the High Court, the Privy Council in Robinson v
Balmain New Ferry Co Ltd [1910] AC 295 at 299 suggested that the defendant
could impose any reasonable condition before allowing exit, whether there
was a contract or not. However, this goes beyond the High Court’s statement
of principle in the same case. In the later decision of Herd v Weardale Steel
Coke and Coal Co Ltd [1915] AC 67 at 71–2, the Lord Chancellor suggested
the High Court and Privy Council views in Balmain were the same.
Power of arrest
3.64 Arbitrary arrest has been described as the ‘hallmark of tyranny’:
Donaldson v Broomby (1982) 40 ALR 525 at 525–6 per Deane J. See also Re
Bolton; Ex parte Beane (1987) 162 CLR 514 at 235–6 per Deane J; Ruddock v
Taylor (2005) 222 CLR 612; 221 ALR 32 at [120] per McHugh J; [138] per
Kirby J.
Many claims for false imprisonment arise from the allegedly wrongful
arrest or detention of the plaintiff. If the arrest is lawful, generally there is no
false imprisonment. Private citizens have a power to arrest under the
common law for breaches of the peace and police have powers of arrest under
the common law and statute.
[page 50]
3.65 Police arrest Under the common law, an officer may make an arrest
without a warrant if there are reasonable grounds to believe that the plaintiff
has committed a felony. The common law powers of arrest without a warrant
depend upon the circumstances of each case, including the nature of the
crime: John Lewis Co Ltd v Tims [1952] AC 676.
However, there may be false imprisonment if the police officer who has
made a lawful arrest then delays in charging the plaintiff beyond a reasonable
time: Jones v Harvey (1983) 1 MVR 111. In Slaveski v Victoria [2010] VSC
441, the plaintiff sued in respect of numerous alleged interferences, including
false imprisonment resulting from the police arresting the plaintiff without a
warrant and failing to take him before a bail justice within a reasonable time.
The plaintiff was arrested just before midday and interviewed for less than 90
minutes. The plaintiff then required hospitalisation after taking tablets and
was discharged from hospital at 9.05 pm. He was then taken to the police
station where he was charged. A bail justice was found and the plaintiff was
released on bail at 11.30 pm. The court held that there was no unreasonable
delay as although the plaintiff was in custody for just less than 12 hours, a
significant period of that time was spent in hospital due to his own actions.
3.66 Many circumstances for arrest without a warrant are governed by
statute that vary within each jurisdiction but, usually, there is a requirement
of a reasonable belief by the police office that a felony has been committed or
about to be committed. If there is no such reasonable belief, there is no lawful
arrest and a plaintiff may allege false imprisonment.
See Crimes Act 1914 (Cth) s 3W; Crimes Act 1900 (ACT) s 212; Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99; Police
Administration Act 1978 (NT) s 123; Police Powers and Responsibilities Act
2000 (Qld) s 365; Summary Offences Act 1953 (SA) ss 75, 78; Police Offences
Act 1935 (Tas) s 55; Crimes Act 1958 (Vic) s 458; Criminal Investigation Act
2006 (WA) s 128.
3.67 Many sections of the Criminal Codes dealing with particular offences
provide that an offender cannot be arrested without a warrant. Where a
warrant is necessary, an officer making an arrest must have the warrant in his
or her possession and produce it if required: Little v Commonwealth (1947) 75
CLR 94.
However, the fact that a warrant exists and is valid does not negate the
possibility of false imprisonment: Myer Stores Ltd v Soo [1991] 2 VR 597.
Failure to act in conformity with a warrant may render a police officer liable:
Symes v Mahon [1922] SASR 447.
3.68
Likewise, an arrest based on a warrant issued without statutory
authority may lead to a claim in false imprisonment. For example, in Spautz v
Butterworth (1996) 41 NSWLR 1, the plaintiff was falsely imprisoned for 56
days after the defendant magistrate had issued an arrest warrant for nonpayment of a costs order awarded against the plaintiff in a civil action. There
was no statutory authority for the issuing of the warrant. In the
circumstances, where the plaintiff had no criminal record and was
unceremoniously cast into prison, the court awarded compensatory damages
of $75,000.
3.69 Civil arrest It is lawful under the common law for a person to make a
civil arrest to prevent breaches of the peace: Coupey v Henley, Whale and
Webster (1797) 170 ER 448; 2 Esp 540. Where a person exercises the civil
power of arrest, there is a duty to take the arrested person before a justice or
to a police station as soon as reasonably possible so the
[page 51]
person may be charged: R v Brown (1841) C & M 314; 174 ER 522; Gerard v
Hope [1965] Tas SR 15; Goss v Nicholas [1960] Tas SR 133.
3.70 The onus is upon the arresting citizen to prove that an offence had
been committed or that there was reasonable ground for the apprehension of
a crime: Allen v Wright (1838) 8 C & P 522; 173 ER 602; Handcock v Baker
(1800) 2 Bos & P 260; 126 ER 1270.
Various statutes have modified the position at common law. At the most
basic level, statutes in most jurisdictions render it legal to detain a person for:
‘breaching the peace’; or
if they are committing an offence; or
it is believed on reasonable grounds that they have committed an
offence.
See Crimes Act 1914 (Cth) s 3Z; Crimes Act 1900 (ACT) s 218; Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100; Criminal
Code Act 1983 (NT) s 441; Criminal Code 1899 (Qld) ss 260 and 546;
Criminal Law Consolidation Act 1935 (SA) s 271; Criminal Code 1924 (Tas) s
27; Crimes Act 1958 (Vic) s 458; Criminal Investigation Act 2006 (WA) s 25.
Prison authorities
3.71
False imprisonment may arise if prison authorities miscalculate
remissions and restrain a dischargeable prisoner for longer than necessary:
Cowell v Corrective Services Commission of New South Wales (1988) 13
NSWLR 714. See also R v Governor of Brockhill Prison; Ex parte Evans (No 2)
[2001] 2 AC 19.
3.72 As for discipline in the defence forces, if the detention of the member
of the defence force is lawful on its face, there is no action in false
imprisonment. In Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR
434, the plaintiff sued in false imprisonment after being imprisoned as
sentenced by the Australian Military Court. To succeed, the plaintiff had to
establish that the officer in charge of the Australian Defence Force’s
corrective establishment was liable in false imprisonment. The High Court
held that there was no false imprisonment and noted (at [67]):
To permit the plaintiff to maintain an action against those who executed that punishment
(whether service police or the officer in charge of the corrective establishment) would be
destructive of discipline. Obedience to lawful command is at the heart of a disciplined and
effective defence force. To allow an action for false imprisonment to be brought by one member
of the services against another where that other was acting in obedience to orders of superior
officers implementing disciplinary decisions that, on their face, were lawful orders would be
deeply disruptive of what is a necessary and defining characteristic of the defence force. It would
be destructive of discipline because to hold that an action lies would necessarily entail that a
subordinate to whom an apparently lawful order was directed must either question and disobey
the order, or take the risk of incurring a personal liability in tort.
Statutory authority
3.73
Many statutes permit government authorities and persons other than
police officers to detain people, for example, customs officers (Customs Act
1901 (Cth)) and immigration
[page 52]
officials (Migration Act 1958 (Cth)) and members of a civil aviation crew:
Civil Aviation Regulations 1988 (Cth). Legislation may also give power to
police officers to detain people, outside of criminal law. See, for example,
Mental Health Act 2007 (NSW) s 22 (police may apprehend person who
appears to be mentally ill or mentally disturbed if they believe on reasonable
grounds that the person would attempt suicide or cause serious harm).
3.74
In Ruddock v Taylor (2005) 222 CLR 612; 221 ALR 32, the
Commonwealth of Australia detained the respondent for two lengthy periods
under the Migration Act 1958 (Cth). The High Court in other proceedings
decided that the Commonwealth was not entitled to detain the respondent
and the respondent sued the Ministers of the Federal Government
responsible for the detention. The New South Wales Court of Appeal had
held that the position of the appellants was analogous to that of a prison
authority that keeps prisoners in custody longer than permitted by statute.
There is no defence of good faith to false imprisonment. The court noted that
the executive arm of the government is not to be treated differently and,
therefore, it had to be established that its officers had lawful authority to
detain: (2003) 58 NSWLR 269 at [3]. As a trespass action, false imprisonment
requires a wilful or negligent act, that being, for this particular trespass, the
intention to detain. By cancelling the respondent’s visa, the inevitable
consequence was detention. On appeal, the High Court held by a majority of
5:2 that s 189 of the Migration Act 1958 (Cth) allowed persons to be detained
if an officer ‘knows or reasonably suspects that a person … is an unlawful
non-citizen’ and that as long as the officer had the requisite state of mind
when detaining the respondent, the detention was lawful. This was applicable
even if the respondent was, in fact, not an unlawful non-citizen: at [28].
6
Remedies
3.75 In Plenty v Dillon (1991) 171 CLR 635 at 654; 98 ALR 353 at 366, it
was explained, ‘once a plaintiff obtains a verdict in an action of trespass, he or
she is entitled to an award of damages’. This is because the trespass to person
actions are actionable without proof of damage: see 2.19. However, the type
of damages awarded will depend upon whether the plaintiff suffered any loss
and the circumstances surrounding the trespass. The types of damages
available are nominal, compensatory, aggravated and exemplary: see Cassell
& Co Ltd v Broome [1972] AC 1027 at 1124–1126.
Nominal Damages
3.76 A plaintiff who successfully establishes an action in trespass to the
person but has suffered no loss or harm from the trespass is entitled to
nominal damages. The nominal damages, which are merely a token amount,
are awarded in recognition that the plaintiff’s rights have been interfered
with. See generally Law v Wright [1935] SASR 20; Stephens v Myers (1830) 4
Car & P 349; 172 ER 735.
Compensatory Damages
3.77 If the trespass has caused the plaintiff to suffer loss or harm, the
remedy is compensatory damages. The aim of such damages is to place the
plaintiff in the position as if no tort had been committed against them.
[page 53]
A plaintiff who has suffered injury would be entitled to compensatory
damages for:
bodily injury, pain and suffering;
consequential loss of earning capacity; and
expenses incurred, for example hospital and medical costs, provided
these were reasonable and the actual consequences of the trespass to
the person.
3.78 With the introduction of the civil liability legislation in all Australian
jurisdictions that imposes restrictions upon the assessment of damages for
personal injury (see Chapter 15), there is the issue of whether claims for
personal injury in trespass actions fall within the ambit of the legislation. For
example, in Queensland, it appears as if intentional torts such as trespass to
person do fall within the ambit of the Civil Liability Act 2003 (Qld) due to the
application section (‘Act applies to any civil claim for damages for harm’: s 4)
and the definitions of ‘claim’ and ‘harm’: see Sch 2 Dictionary. Academic
writing has pointed out that this interpretation does not equate with the
intention of the Ipp Report4 that clearly refers to the law governing the
assessment of damages for personal injury in negligence: Ipp Report at
[1.10].5
In contrast, the Civil Liability Act 2003 (NSW) does not apply to
intentional torts as intentional acts done with the intent to cause injury or
death are excluded: s 3B(1)(a). See Cross v Certain Lloyds Underwriters [2011]
NSWCA 136. Similar provisions are also found in the civil liability legislation
of Tasmania, Victoria and Western Australia: Civil Liability Act 2002 (Tas) s
3B(1)(a); Wrongs Act 1958 (Vic) s 28C(2)(a); Civil Liability Act 2002 (WA) s
3B(1).
In South Australia, the assessment of damages for personal injury refers to
negligence and unintentional torts: Civil Liability Act 1936 (SA) s 51(a)(ii).
Aggravated and Exemplary Damages
3.79 Awards of damages for trespass to person may also include exemplary
damages and aggravated damages: Henry v Thompson [1989] 2 Qd R 412.
Such damages may be awarded in addition to nominal damages if there is no
loss and in addition to compensatory damages if the plaintiff suffered loss
from the trespass. The difference between the two types of damages was
explained in New South Wales v Ibbett (2005) 65 NSWLR 168 at [83] as ‘in
the case of aggravated damages the assessment is made from the point of view
of the Plaintiff and in the case of exemplary damages the focus is on the
conduct of the Defendant’.
Aggravated damages
3.80 Aggravated damages are awarded to compensate the plaintiff for
injury to their feelings. In Watts v Leach [1973] Tas SR 16 at 19–20, Nettlefold
J described the function of an award of aggravated damages in an action in
battery as follows:
The damage was caused by an intentional act of violence. That being so, in considering the
appropriate lump sum for damages, the court must take into account that the plaintiff’s
[page 54]
compensation must reflect any injury to the plaintiff’s feelings, ie, the indignity, mental
suffering, disgrace and humiliation which may have been caused to him.
3.81 The fact that the plaintiff suffers a particular vulnerability and this
leads to them suffering distress that would not otherwise be suffered, does not
prevent an award of aggravated damages. In Trevitt v NSW TAFE
Commission [2001] NSWCA 363, the appellant claimed in assault and false
imprisonment. He was used in a mock hold-up organised by the lecturer in a
classroom, not knowing that it was a role play and that the perpetrator was in
fact another student and the pistol being used was not real. Damages were
awarded upon appeal for the appellant’s injured feelings, distress and affront
to dignity. The Court of Appeal stated (at [49]):
The distress suffered by the appellant was in my opinion due to his having a vulnerable
personality, and would probably not have otherwise been suffered; but this does not in my
opinion prevent damages being awarded for that distress for the tort of trespass to the person.
Liability for trespass to the person does not require proof of foreseeability of damages, and in
my opinion once liability for that tort is established the wrongdoer must take the victim as he
finds him.
3.82 Damages for false imprisonment are awarded for the loss of liberty
and the injury to feelings such as the indignity, disgrace and humiliation. In
Myer Stores Ltd v Soo [1991] 2 VR 597, aggravated damages were awarded for
false imprisonment to compensate the plaintiff for the distress that he had
suffered as a result of the defendant’s conduct during shoplifting
investigations which had no foundation. See also Eaves v Donelly [2011] QDC
207 where the plaintiff was awarded aggravated damages for embarrassment
when she was walked in handcuffs past people whom she knew in her
building and for her feelings of degradation, anxiety and sickness during her
false imprisonment.
Exemplary damages
3.83 Exemplary damages are awarded to punish the defendant if the court
finds that the defendant acted with contemptuous disregard for the plaintiff’s
rights: New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485 at [51]. In
Coleman v Watson [2007] QSC 343, the court refused to award exemplary
damages in an action for assault and false imprisonment against two police
officers, finding that the defendants had acted in good faith although the
plaintiff’s arrest had been unlawful. In Trevitt v NSW TAFE Commission
[2001] NSWCA 363, no exemplary damages were awarded as the wrongful
conduct was not contumelious; it simply ‘flowed from a misguided view as to
what would be helpful to the students being instructed’: at [52].
3.84
All forms of damages may be awarded: Carter v Walker (2010) Aust
Torts Reports ¶82-076. In New South Wales v Radford [2010] NSWCA 276 at
[97], Leeming JA explained that:
the various categories of damages that may be awarded for trespass to the person, including
assault and false imprisonment, are not self-contained. There is a close relationship between an
award of ordinary compensatory damages for injury to the plaintiff’s feelings and an award of
aggravated damages. It is necessary to assess compensatory damages, including aggravated
damages, before determining whether exemplary damages should be awarded and, if so, the
quantum of any such award.
[page 55]
For example, in Henry v Thompson [1989] 2 Qd R 412, the three
defendants were police officers who assaulted the plaintiff during an episode
in which one of the defendants had jumped up and down on the head and
shoulders of the plaintiff and another had urinated on him. Damages were
upheld on appeal at $5000 for actual injury, $10,000 for aggravated damages
for the humiliation the plaintiff experienced, and $10,000 exemplary damages
intended to punish the defendants. See also Eaves v Donelly [2011] QDC 207
(exemplary damages awarded as the defendant’s dislike of the plaintiff
influenced the defendant to wrongly use his power of arrest and hand
cuffing).
Injunction and Other Orders
3.85 Although it has been the general view that courts have no power to
grant an injunction to restrain one person from annoying or interfering with
another outside the matrimonial jurisdiction (Fitzwilliam v Beckman [1978]
Qd R 398), some courts have been prepared to grant an injunction to restrain
a threatened assault: Zimitat v Douglas [1979] Qd R 454; Parry v Crooks
(1981) 6 Fam LR 824; Corvisy v Corvisy [1982] 2 NSWLR 557.
3.86
Legislation has been enacted in all Australian jurisdictions that allows
a court to grant protection orders that may include protection for not only
spouses (including de facto spouses) and children of the relationship, but also
relatives and associates: see 3.35.
3.87 A person who has been trespassed against may, of course, complain to
police and seek redress under the criminal law. As noted at 3.34, the courts
have the power to order victims of crime to be compensated.
7
Limitation Period
3.88 The limitation period is dependent upon the type of loss the plaintiff
has suffered, if any. If the plaintiff is seeking a remedy but the trespass has not
led to loss, the action must be brought within six years, except in the
Northern Territory: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969
(NSW) s 14(1)(b); Limitation Act 1981 (NT) (three years) s 12(1)(b);
Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act
1936 (SA) s 35(c); Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions
Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 13(1). The same
limitation applies if the plaintiff is seeking compensation for loss other than
personal injury, for example, property or economic loss.
If the claim is for personal injury, the relevant limitation period is three
years: Limitation Act 1985 (ACT) s 16B; Limitation Act 1969 (NSW) s 18A;
Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s
11; Limitation of Actions Act 1936 (SA) s 36; Limitation Act 1974 (Tas) s 5;
Limitation of Actions Act 1958 (Vic) s 27D; Limitation Act 2005 (WA) s
14(1). See also Chapter 14.
[page 56]
Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 3.
J Devereux, ‘Known Knowns and Known Unknowns: The Mysteries of
Intentional Torts Against the Person’ (2014) 22 Tort L Rev 134.
P Handford, ‘Tort Liability for Threatening or Insulting Words’ (1976)
54 Can Bar Rev 563.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 11.
F A Trindade, ‘The Modern Tort of False Imprisonment’ in N J
Mullany (ed), Torts in the Nineties, LBC Information Services, Sydney,
1997.
Hon P W Young, ‘Is There Any Law of Consent With Respect to
Assault?’ (2011) 85 ALJ 23.
1.
P Handford, ‘Tort Liability for Threatening or Insulting Words’ (1976) 54 Can Bar Rev 563.
2.
For criticism of this approach, see R S O’Regan, ‘Provocation as a Defence in Queensland in a
Civil Action for Assault’ (1990) 16 UQLJ 117.
3.
See R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, 2013, [3.25].
4.
Commonwealth of Australia, Review of the Law of Negligence — Final Report, October 2002,
available at <http://revofneg.treasury.gov.au>.
5.
See T Cockburn and B Madden, ‘A Renewed Interest in Intentional Torts Following Legislative
Changes to the Law of Negligence?’ (2006) 14 Tort L Rev 161.
[page 57]
Chapter 4
Trespass to Land
1
Introduction
4.1 Trespass to land is one of the oldest forms of action known to the
common law, reflecting the early significance placed upon real property and
title to it. The action consists of any direct and unauthorised interference,
either intentional or negligent, with a person’s possession of land. It was
termed originally quare clausum fregit (meaning ‘wherefore he broke the
close’). ‘Close’ was the term used to describe a person’s [en]closed land.
4.2 As a trespass action, the plaintiff does not have to prove that any
damage was suffered; the mere interference with the plaintiff’s right of
possession is sufficient to establish liability: Entick v Carrington (1765) 19 St
Tr 1029; 95 ER 807. The well-known words of Lord Camden LCJ in Entick v
Carrington summarise the position:
By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No
man can set his foot upon my ground without my licence, but he is liable to an action, though
the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that
some positive law has empowered or excused him: at St Tr 1066; ER 818.
Those words were cited with approval by Brennan J of the High Court in
Halliday v Nevill (1984) 155 CLR 1 at 10; 57 ALR 331 at 335.
However, in a modern society, other competing policy factors have to be
balanced against privileges associated with title to land and no longer is ‘every
invasion of private property, be it ever so minute’ an actionable trespass.
4.3
To succeed in trespass to land, the following elements must be
established:
the plaintiff must have the requisite title to sue;
there must be an actionable interference with land; and
the defendant must be at fault.
2
Title to Sue
4.4 The law of trespass to land is principally concerned with protecting
possession of land. For this reason, it is the possessor and not necessarily the
owner who is entitled to sue.
As to what is possession, it is a question of fact. In Newington v Windeyer
(1985) 3 NSWLR 555, the plaintiffs owned houses that faced onto an open
space of land called the Grove. There was no registered owner of the Grove
itself, but the plaintiffs had used the
[page 58]
area for many years as their garden. The defendant owned two houses that
backed onto the Grove. She took down the fence separating her houses from
the Grove, and put up a low brick wall with gates giving access onto the
Grove. The plaintiffs alleged that any entry by the defendant or her guests
onto the Grove constituted trespass. The Court of Appeal of New South
Wales held that entry by the defendant onto the Grove did constitute trespass,
even though there was no registered owner of the land. McHugh JA (with
whom Hope JA agreed) said (at 563–4):
The [plaintiffs] are not the owners of the registered title of the Grove, but that fact does not
prevent them maintaining an action of trespass against the [defendant]. The modern law of real
property continues to invoke the medieval doctrine that possession is prima facie evidence of
seisin in fee and that an estate gained by wrong is nevertheless an estate in fee simple. The
evidence proved that the [plaintiffs] had engaged in many acts of ownership over a period of
nearly fifty years. They employed a man to mow the lawn. They engaged in the maintenance of
the trees, garden and rockeries. They cut down trees when necessary. They used the Grove as a
common garden … They blocked off attempts by … the [defendant] to use the Grove. On many
occasions [they] told uninvited visitors that the Grove was private land and that they were
trespassing. In my opinion, [the trial judge] was correct in finding that the [plaintiffs] were in
possession of the Grove.
4.5 The possession of the plaintiff need not be lawful and a plaintiff in
actual possession has title to sue except if another can establish a better right
to possession: Newington v Windeyer (1985) 3 NSWLR 555 at 563. This
emphasis on possession as the basis to sue may generate some
inconsistencies; for example, a possessor, even a wrongful possessor such as a
squatter, may be able to bring an action against anyone who is unable to
establish a better legal right to possession, that is, a squatter with earlier
possession could sue another subsequent interloper. However, the squatter
could not maintain the action against the true owner or someone acting on
the authority of the true owner: NRMA Insurance Ltd v B & B Shipping and
Marine Salvage Co Ltd (1947) 47 SR (NSW) 273 (defence of jus terii); for
defences to trespass, see Chapter 6. In Delaney v T P Smith Ltd [1946] KB
393, the plaintiff took possession of a house under a lease that was legally
ineffective and, therefore, did not give any right to exclusive possession. The
defendants were the owners of the house and reclaimed possession of the
house by forcibly ejecting the plaintiff. The plaintiff alleged trespass to land.
The Court of Appeal held that the plaintiff’s action failed because the
defendants’ legal right to exclusive possession overrode the plaintiff’s actual
possession. Tucker LJ, with whom Cohen LJ agreed, said (at 397):
It is no doubt true that a plaintiff in an action in trespass to land need only in the first instance
allege possession. This is sufficient to support his action against a wrongdoer, but is not
sufficient as against the lawful owner …
Tenants and Lessors
4.6
As possession of the land gives standing to sue, it would be a tenant of
the demised premises that is interfered with who would have title to sue in
trespass, not the lessor (the owner): Loxton v Waterhouse (1891) 7 WN
(NSW) 98; Rodrigues v Ufton (1894) 20 VLR 539. In fact, a tenant lawfully in
possession may sue a trespassing lessor: Kelsen
[page 59]
v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334.
However, legislation or the lease may provide the lessor with certain rights of
entry onto demised premises. For example, Pt 3 of the Residential Tenancies
Act 1994 (Qld) states for what purposes a lessor may enter the demised
premises and the required notice.
Where a lease is broken by a tenant, giving a lessor the right to immediate
possession, reentry by the lessor while the tenant is not in possession will
deprive the tenant of any right to sue: Baker’s Creek Consolidated Gold
Mining Co v Hack (1894) 15 LR (NSW) Eq 207. If the tenant is still in
possession, there are cases to the contrary: Gifford v Dent (1926) 25 WN 33.
The tenant may sue in trespass even if the alleged interference has been
authorised by the lessor: Kelsen v Imperial Tobacco Co (of Great Britain and
Ireland) Ltd.
Trespass by relation
4.7 The doctrine of trespass by relation is a legal fiction and applies where
a plaintiff with a right of possession enters land subsequent to the right
having accrued. Where a person has a right to immediate possession of land,
by exercising the right in entering upon the land, the person is deemed to
have been in possession from the time the right accrued: Ocean Accident Co v
Ilford Gas Co [1905] 2 KB 493; Ebbels v Rewell [1908] VLR 261; Minister of
State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1 at 5. This means that
their possession is ‘related back’ to the time when the right of entry arose to
permit an action for any interference which occurred between accrual and
actual entry. Under this doctrine, a tenant who enters into a lease giving the
right to exclusive possession from the date of execution of the lease, can sue a
trespasser for any interference between the date of execution and the time of
actual entry. Similarly, a landlord seeking mesne profits for trespass (see 4.69)
from a tenant after ejecting them, would rely upon the legal fiction of trespass
by relation: see Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012]
WASC 285 at [300]–[308].
4.8 In many jurisdictions, where the doctrine of interesse termini (interest
that a lessee had under the common law before taking possession of the leased
premises) has been abolished, a lease takes effect from the date fixed for
commencement, so trespass by relation is of less importance: see
Conveyancing Act 1919 (NSW) s 120A(1); Law of Property Act 2000 (NT) s
115(1); Property Law Act 1974 (Qld) s 102(1); Law of Property Act 1936 (SA)
s 24B; Property Law Act 1958 (Vic) s 149(1); Property Law Act 1969 (WA) s
74(1).
Licensees
4.9 A licensee is a person given permission to enter or to remain on land,
usually for a particular purpose, but without any entitlement to an interest in
exclusive possession of land. As such a person does not have an exclusive
right to possession, so they do not have the requisite title to sue in trespass. In
Western Australia v Ward (2002) 213 CLR 1 at [504], McHugh J stated:
In contrast (to a lease), a licence to use land ordinarily confers only a personal right that is
enforceable in contract but not by an action in trespass or ejectment.
[page 60]
In Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534, in
relation to whether having a licence to occupy a jetty was sufficient to give
title to sue in trespass, Barrett J of the New South Wales Supreme Court
referred to Western Australia v Ward and explained (at [95]):
… trespass to land entails interference with possession and is maintainable only by someone
who has a right of possession. As between landlord and tenant, it is the tenant who may sue for
trespass. As between licensor (freeholder) and licensee, where no right of possession is involved,
it is the licensor who may sue for trespass.
The issue of title to sue was discussed in Shannon v New South Wales
[2015] NSWDC 69. The court noted that the right to sue in trespass to land
required the plaintiff to have ‘possession of the land to the exclusion of all
others’ and that exclusive possession was distinct from ownership: at [23].
The plaintiff had sold the land to his parents in 1993 in order to satisfy a
property settlement arising from his divorce. The transfer in title had no
effect upon the plaintiff’s possession and occupation of the property and he
continued to maintain the property and run cattle on it for commercial
purposes. The plaintiff had title to sue as he was in possession of the land and
‘as a matter of fact and practicality, the only person who could be approached
for permission to enter the land’: at [34].
Co-owners
4.10 Land may be owned by more than one person in the form of either a
joint tenancy or a tenancy in common. Each co-owner is entitled to exclusive
possession to all of the land, so a co-owner cannot sue another co-owner
unless he or she is wrongfully excluded from the land: Luke v Luke (1936) 36
SR (NSW) 310.
4.11 If the property is co-owned but not all owners occupy the land, it is
the co-owner in possession who has title to sue in trespass. In Baker v Police
[1997] 2 NZLR 467, a husband and wife owned property, but they had
separated and the husband lived in the house. The wife went to the house in
the company of a police officer to retrieve some of her property. The husband
ordered the officer off the property and this was complied with. However, at
the invitation of the wife, the officer re-entered the house. The husband
became aggressive and was arrested for assaulting a police officer in the
execution of their duty. The husband appealed the conviction, alleging that
the officer was not lawfully in the house at the time of the assault. The New
Zealand High Court allowed the appeal, holding that, though the wife was a
part-owner of the property, she was not an occupier. To sue in trespass, a
plaintiff had to have possession, not ownership, and only an occupier could
grant a licence to a third party to enter the premises.
Easements and Profits à Prendre
4.12 A person with a right in the form of an easement or profit à prendre
may be entitled to sue in trespass and this is an exception to the general rule
that only a person with exclusive possession may sue: Fitzgerald v Firbank
[1897] 2 Ch 96; Mason v Clarke [1955] AC 778; McDowall v Reynolds [2004]
QCA 245 at [7].
An easement is a limited right enjoyed by one person over another’s land,
for example, a right of way. A profit à prendre is a right exercised by one
person in the soil of another,
[page 61]
accompanied by a participation in the profits of the soil, for example, a right
to take timber, dig sand, or pasture sheep and cattle. A profit à prendre differs
from an easement because it involves a right of profit.
Purchasers Under a Contract of Sale
4.13 Title to sue in trespass to land is complicated when a contract of sale
over land is entered into. Title to sue as purchaser was considered in Cousins
v Wilson [1994] 1 NZLR 463. A large residential property in Dunedin was
sold by an agreement which provided that the property was at the sole risk of
the vendors until possession was given and taken, and that if there was any
destruction or damage to the property before possession, the purchase price
was to be reduced by an amount equal to the diminution in value of the
property. Five days after settlement, the purchasers discovered that the
defendant, who owned land adjacent to the property, had removed, felled and
lopped trees and cleared bush to improve the view from his property. This
work included the removal or destruction of 20 mature trees. The vendors
had also been unaware of this work although they had given him permission
to lop some trees and do some other minor work.
The purchasers sued the neighbour in the District Court, claiming damages
for alleged trespass and negligence. On appeal to the New Zealand High
Court it was confirmed that at the time of the trespass the vendors were in
possession of the land according to the terms of the contract of sale. The
purchasers only had an equitable interest in the land and therefore did not
have title to sue in trespass.
3
Actionable Interference
4.14 In Miller v Jackson [1977] QB 966 at 978, it was explained that
trespass to land is an unjustified entry and includes the physical intrusion
into land by tangible objects, be they persons or things. To establish an action
in trespass to land, the interference complained of must be:
direct;
an interference with land; and
unauthorised.
Direct Interference
4.15 Trespass to land in Australia is concerned with interferences that are
direct in the sense that the interference that the plaintiff suffers is immediate
upon the defendant’s act. If the interference is indirect, an action in nuisance
may be possible: see Chapter 25.
The distinction between direct and indirect is not always an easy one to
draw: see Chapter 2. It has been said, for example, that to throw stones onto
another’s land would be trespass, but it would be nuisance, an action on the
case, to build a fence along the boundary which later became dilapidated so
that it leaned over or collapsed onto the plaintiff’s land: Mann v Saulnier
(1959) 19 DLR (2d) 130.
[page 62]
There may be differences of opinion on the same set of facts as to whether
the interference has arisen directly or indirectly. For example, in Southport
Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182; on appeal [1956] AC
218, the master of an oil tanker which was stranded in an estuary jettisoned a
quantity of oil in an attempt to refloat. The oil drifted ashore under the
influence of tide and wind and polluted the beaches under the control of the
Southport Corporation. One judge in the Court of Appeal, and two in the
House of Lords, thought the damage arose consequentially, while another
judge in the Court of Appeal saw the damage as direct. It was indirect, and
actions in negligence or nuisance were the only ones that could succeed.
Interference with Land
4.16 Traditionally, ‘land’ included the area below the surface and the
airspace — cujus est solum ejus est usque ad coelum et ad inferos (to whom
belongs the soil, his it is, even to heaven, and to the middle of the earth). In
modern times, to apply this maxim would mean that an action in trespass
would lie for a passing aeroplane or even a satellite. Therefore, the concept of
what is ‘land’ in a trespass action in modern times is more limited as the
courts have recognised the need to balance the rights of a person in
possession of land with the needs of society in general.
Subsoil
4.17 There may be a trespass below the surface of the land because the
occupier of land is normally in possession of what is under or attached to the
land, and so has title to sue for trespass, even though the existence of the
object below the surface is not known: Elwes v Brigg Gas Co (1886) 33 Ch D
562; Corporation of London v Appleyard [1963] 2 All ER 834; Re Cohen;
National Provincial Bank Ltd v Katz [1953] Ch 88.
Wrongful entry into the subsoil of land in the possession of another is
trespass even if the entry is not through the surface of the land and even
where entry is effected through a natural aperture on the defendant’s own
land: Edwards v Sims Ky 791, 24 SW (2d) 619 (1929). In Burton v Spragg
[2007] WASC 247 at [16], the court held that there was a trespass to land due
to the:
… actual intrusion into the plaintiff’s land by the excavations made by the defendant’s
contractor … Unauthorised subterranean incursions into a neighbour’s property are a wellrecognised species of trespass: Bulli Coal Mining Co v Osborne [1899] AC 351.
4.18 The issue of trespass may be affected by severance of surface and
subsoil rights, for example, where a mining right or some other licence is
granted giving limited rights to interfere with the subsoil (Elwes v Brigg Gas
Co) or there is a Crown grant by way of reservation of the minerals. For
example, gold and silver is vested in the Crown at common law: AttorneyGeneral v Great Cobar Copper Mining Co (1900) 21 NSWR 351. If there is no
such reservation or licence and material is mined, the defendant may also be
liable in conversion: see Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59
CLR 641 and Chapter 5.
[page 63]
Airspace
4.19
It was not until 1978 that a superior court was called upon to
adjudicate on the conflict between the public right to use airspace and the
private rights of a landowner to keep the airspace above property free of
modern airborne interference. Lord Justice Griffiths, in the landmark
decision of Bernstein v Skyviews & General Ltd [1978] QB 479, struck a
balance by restricting the rights of an owner in the airspace above land to
such height as is necessary for the ordinary use and enjoyment of the land
and the structures upon it, so that above that height a landowner has no
greater right to the airspace than any other member of the public.
The legal position was summarised by Griffiths J (at 484):
The problem is to balance the rights of an owner to enjoy the use of his land against the rights of
the general public to take advantage of all that science now offers in the use of air space. This
balance is in my judgment best struck in our present society by restricting the rights of an owner
in the airspace above his land to such height as is necessary for that ordinary use and enjoyment
of his land and the structures upon it, and declaring that above that height he has no greater
rights in the airspace than any other member of the public.
4.20 This view accords with the Australian position, for example in LJP
Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR
490. In that case, the defendant was carrying out a commercial development
of its property and sought permission from the plaintiff to erect scaffolding
over the plaintiff’s land. The plaintiff informed the defendant that permission
would be granted only in return for payment of considerable sums of money.
The defendant rejected these terms and built the scaffolding anyway, at a
height of about 4.5 metres above ground level. The plaintiff sued the
defendant, alleging that the incursion of the scaffolding into the airspace
above its land constituted a trespass. The defendant relied on Bernstein v
Skyviews & General Ltd, arguing that there was no trespass because the height
and manner of the entry of the scaffolding into the plaintiff’s airspace did not
interfere with the plaintiff’s use of its land. Not unexpectedly, the Supreme
Court of New South Wales held that the scaffolding did constitute a trespass
to the plaintiff’s land. Hodgson J held (at 495):
I think the relevant test is not whether the incursion actually interferes with the occupier’s actual
use of the land at the time, but rather whether it is of a nature and at a height which may
interfere with the ordinary use of the land which the occupier may see fit to undertake.
In PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87,
the plaintiff alleged that cladding on the defendant’s building projected up to
60 millimetres into the airspace above his land and sought a permanent
injunction requiring the removal of the cladding, so far as it encroached onto
his land. The injunction was granted, the trial court holding that building in
the airspace was an example of the ordinary use of the land in the particular
area (high-rise buildings). The cladding interfered with ‘the actual and
potential ordinary use of the plaintiff’s land’: at [62] (confirmed on appeal in
Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311).
[page 64]
See also Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd
[1957] 2 QB 334 (a sign); Graham v Morris [1974] Qd R 1 (a crane jib
suspended); LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd
(scaffolding); Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464
(screens on building to prevent building material from falling).
4.21 Legislation also provides exceptions as to when a trespass to airspace
is actionable. For example, s 72(1) of the Civil Liability Act 2002 (NSW)
provides:
… no action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary
incidents of the flight) of an aircraft over any property at a height above the ground that is
reasonable (having regard to wind, weather and all the circumstances of the case) so long as the
Air Navigation Regulations are complied with.
4.22 If the projection over the airspace results from natural causes (for
example, branches overhanging from a neighbour’s tree) it cannot be trespass
because it is indirect, but an action on the case in private nuisance may lie: see
Chapter 25.
Unauthorised Interference
4.23 Although consent can be regarded as a defence to the trespass actions
(see 6.5), to be an actionable trespass to land ‘it is necessary for the plaintiff to
negative consent’: Lord v McMahon [2015] NSWSC 1619 at [148].
Entering land in the possession of a plaintiff does not amount to trespass if
it is done with consent. In TCN Channel Nine Pty Ltd v Anning (2002) 54
NSWLR 333 at [23], Spigelman CJ stated:
The tort of trespass is committed whenever there is interference with possession of land without
lawful authority or, relevantly, the licence or consent of the person in possession.
Consent may arise in various forms:
express licence;
implied licence; or
by the authority of law.
Express licence
4.24 A person in possession of land may give permission for another to
enter their land for a particular purpose, granting an express licence to enter,
for example giving permission for a tradesperson to enter the premises for the
purpose of carrying out repairs. Once the purpose of the licence has been
achieved, the licence comes to an end and the licensee must depart within a
reasonable time. If they stay beyond a reasonable time, they become
unauthorised.
4.25 If a licence is granted for a particular purpose and the licensee enters
the property for a different purpose, then they will be a trespasser. In Barker v
R (1983) 153 CLR 338; 47 ALR 1, the defendant had the permission of the
owner of the property to look after the property while they were away.
However, instead the defendant entered the house and removed the furniture.
It was held that the defendant was a trespasser as he had authority
[page 65]
to enter the house for the purpose of security, but instead he had entered with
the purpose of committing theft.
4.26 The difficulty lies in cases of entry for mixed purposes as in Healing
(Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584. In that case, the
defendants had a contractual right to enter the plaintiff’s commercial
premises to repossess certain goods. In purported exercise of the contractual
right to enter to repossess nominated goods, the defendant took possession of
the other goods also, to which there was no right. The High Court held that
there was no trespass despite the fact that the defendant had exceeded its
licence to enter.
Implied licence
4.27 The decision of the High Court of Australia in Halliday v Nevill
(1984) 155 CLR 1; 57 ALR 331 can be seen as a substantial inroad into the
common law’s desire to promote ownership and possession of land as a
fundamental right by balancing it against the need for public officers to
exercise powers and carry out duties conferred by statute.
4.28 In Halliday v Nevill, the majority (Gibbs CJ, Mason, Wilson and
Deane JJ) held that when police entered onto private property in order to
arrest a driver of a motor vehicle in the driveway of a property which was not
his home, but out of which he had been seen driving a vehicle (when he was
known to the police as a disqualified driver), this was not a trespass as there
was an implied licence to enter.
The majority held:
The most common instance of such an implied licence relates to the means of access, whether
path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the
path or driveway leading to the entrance of such a dwelling is left unobstructed and with
entrance gate unlocked and there is no notice or other indication that entry by visitors generally
or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in
favour of any member of the public to go upon the path or driveway to the entrance of the
dwelling for the purpose of lawful communication with, or delivery to, any person in the house:
at CLR 7; ALR 333.
No doubt, pragmatic considerations such as not wishing to unduly hamper
the day-to-day enforcement of the criminal law affected the decision of the
majority in that case, but significant policy considerations underpin it.
However, the decision must be seen as a significant diminution of the
common law rights of owners or occupiers of property to complain of
trespass. Brennan J, in dissent, made the following observations:
There is, if course, a tension between the common law privileges that secure the privacy of
individuals in their own homes, gardens and yards and the efficient exercise of statutory powers
in aid of law enforcement. The contest is not to be resolved by too ready an implication of a
licence to police officers to enter on private property. The legislature has carefully defined the
rights of the police to enter; it is not for the courts to alter the balance between individual
privacy and the power of public officials. It is not incumbent on a person in possession to
protect his privacy by a notice of revocation of a licence that he has not given; it is for those who
infringe his privacy to justify their presence on his property. There may well be a case for
[page 66]
enlarging police powers of entry and search, but, that is a matter for the legislature: at CLR 20;
ALR 243.
See also Robson v Hallett [1967] 2 QB 939 at 951.
The majority in Halliday v Nevill did concede that an implied refusal or
withdrawal of the licence might arise, but otherwise affirmed that the path or
driveway is held out by an occupier as the bridge between the public
thoroughfare and his or her private dwelling upon which a passerby may go
for a legitimate purpose.
4.29 The implied invitation to the public to enter is limited to bona fide
entrants, that is, persons entering the property for legitimate purposes. In
Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, the
defendants, a television crew, entered the plaintiff’s business premises with
one of the plaintiff’s customers. They filmed videotape of the interior of the
premises and harassed those on the premises. The court held that the
defendants had trespassed on the plaintiff’s premises as the plaintiff’s implied
invitation to the public to visit its business premises was limited to clients and
members of the public bona fide seeking information or advice, and did not
extend to unwanted visitors such as intrusive film crews or, for that matter,
robbers. See also Gallagher v McClintock [2014] QCA 224 where it was held
that any licence of the appellant to be on church land was subject to his
complying with statutory requirements in relation to religious worship as well
as requiring him to ‘behave in reasonable conformity with the requirements
of the religion in which he was participating’: at [26].
4.30 In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, the
respondent leased land upon which he had built a motorcycle track that was
used for training purposes. The land was also used for the storage of used
tyres. The storage of the tyres was of concern to the Environmental
Protection Authority (EPA), which had been observing deliveries of the tyres.
The boundary of the property was fenced, with locked gates at the driveway.
On the day in question, a delivery of tyres was made; the respondent
unlocked the gates to allow the truck access to the property but did not lock
the gates behind the truck. Members of the EPA, the local council, the police
and a television journalist with crew, together with employees of the
appellant, entered through the gate onto the property. Seeing the journalist,
the respondent asked where she was from and, upon being informed that she
was from A Current Affair, Channel Nine, the respondent first of all stated
that he had a statement to make but then said that he wanted no persons on
his property. The respondent sued in trespass to land, seeking damages,
including damages for the mental trauma he suffered as a result.
The appellant argued that the use of the land as a tyre dump and/or as a
racing track necessarily involved permission for members of the public to
enter, or, alternatively, that there was an implied right to enter as a member of
the public to communicate with the occupier, in this case, to ask if the
respondent would grant an interview. The court held that the mere fact that
the respondent had not relocked the gates did not of itself establish an
implied licence to enter: at 343–4. The scope of an implied licence would be
for the purposes of the conduct of the tyre business or the racetrack. As the
appellant did nothing that was referable to these purposes, there was no
implied licence. As for the alternative argument, the evidence before the court
did not establish any request for permission to film
[page 67]
but rather an assertion that they were there to do a story. Therefore, the
appellant also failed to establish that they were on the property for the
purpose of requesting authority to film or conduct an interview: at 349.
Revocation or withdrawal of licence
4.31 A licence may naturally come to end upon its purpose being achieved,
or the licence may be withdrawn or revoked. Revocation may take place after
the plaintiff has initially consented to the entrance or may be withdrawn prior
to any entry that may otherwise be implied. If a licence is revoked after being
given or implied:
the licensee must be given notice of the withdrawal by the person in
possession of the land; and
a reasonable time must be allowed to permit the licensee to depart:
Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605.
4.32 It is a question of fact whether there has been communication of the
revocation. See Maynes v Casey [2011] NSWCA 156 at [28], where the court
held that the authorities did not support the argument that the ‘mere
publication of a notice, unbeknownst to the visitor, was sufficient to render
that person a trespasser’.
In Wilson v New South Wales (2010) 278 ALR 74 at [51], Hodgson JA
(McColl and Young JJA agreeing) stated:
… the licensee must first have notice that the licence is revoked; and consistently with the
general legal position in relation to the giving of notice, that requires a communication to the
licensee, which the licensee understands as a revocation of the licence or which a reasonable
person in the position of the licensee would understand as a revocation of the licence. This
means in turn that the communication must be such that the licensee did understand it, or a
reasonable person in the position of the licensee would understand it, both as coming from a
person with authority to revoke the licence and as having such content as to constitute such a
revocation. If the communication comes from a person apparently in occupation of the land in
question, this will generally be enough to convey to a licensee or to a reasonable person in the
position of the licensee that it is from a person with the authority to revoke the licence.
As to whether revocation of a licence may be by only one co-owner of the
property, see the discussion in New South Wales v Koumdjiev (2005) 63
NSWLR 353.
4.33 An implied licence may be revoked by securing gates, as in TCN
Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, or placing written
notices to warn off strangers or particular classes of entrants.
Prior communication with the occupier may also negate any implied
licence to enter the property. In Plenty v Dillon (1991) 171 CLR 635; 98 ALR
353, the plaintiff owned a small farm in South Australia and was the parent of
a 14-year-old daughter, against whom allegations that she had committed
offences had been made. Under the relevant legislation, a complaint was laid
against the daughter alleging she was in need of care and control. A justice
issued a summons to the child to appear and police made several unsuccessful
attempts to serve her. On one occasion, it was left with the father but the child
did not appear. A fresh summons was issued to the child, as were notices to
the father and mother to attend.
[page 68]
Mr Plenty had previously made it clear in statements and correspondence
that no one was to enter his land to serve the summons and that it was to be
served by post. Two police officers again entered the property to serve the
daughter and the parents. The High Court held that entry onto private land
against an owner’s wishes was not justified under the common law merely as
part of an attempt to serve process such as a summons which is non-coercive,
though it might be different if entry was to effect an arrest. Mr Plenty had
clearly revoked any implied consent to enter his land.
4.34 Upon the end or the withdrawal of consent, the licensee does not
immediately become a trespasser; reasonable time must be allowed for them
to leave. In Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, a patron
of a racecourse, who had purchased a ticket entitling entry, was forcibly
removed in breach of the contract of entry. He was held to be a trespasser as
he failed to leave within a reasonable time after consent to his presence had
been revoked.
4.35 In Kuru v New South Wales (2008) 246 ALR 260, the High Court
considered whether a plaintiff could revoke consent given to police officers to
enter premises to investigate reports of domestic violence. A majority held
that the plaintiff had revoked his consent for the police officers to be on the
property and, by remaining after the revocation, the officers were trespassing.
It was stated (at [43]):
As was pointed out in this court’s decision in Plenty v Dillon, it is necessary to approach
questions of the kind now under consideration by recognising the importance of two related
propositions. First, a person who enters the land of another must justify that entry by showing
either that the entry was with the consent of the occupier or that the entrant had lawful
authority to enter. Secondly, except in cases provided for by the common law and by statute,
police officers have no special rights to enter land. And in the circumstances of this case it is also
important to recognise a third proposition: that an authority to enter land may be revoked and
that, if the authority is revoked, the entrant no longer has authority to remain on the land but
must leave as soon as is reasonably practicable. [footnotes omitted]
This overturned the decision of the New South Wales Court of Appeal
(New South Wales v Kuru (2007) Aust Torts Reports ¶91-893) where the
majority held that there was no trespass despite the revocation, as at the time
the police had not finished their investigations and were ‘entitled at common
law to stay until they had taken reasonable steps to satisfy themselves no
offence had been committed’: at [178] per Ipp JA.
Authorised by law
4.36 Many statutes, state and federal, confer the right of non-consensual
entry to property by officers for the purpose of carrying out their functions,
for example Fire and Emergency Services Act 1990 (Qld) s 53 (an authorised
fire officer may enter any premises to protect persons or property from
danger or potential danger caused by fire); Local Government Act 1993
(NSW) s 199 (authority to enter premises).
Where there is clear and unambiguous statutory conferral of a right of
entry upon a public official, such as an electricity meter reader, preventing a
legitimate right of entry may expose the occupier to breach of some statutory
provision attracting a penalty and perhaps termination of the relevant service,
for example Electricity Act 1994 (Qld) ss 137 and 138
[page 69]
(authority to enter a property for the purpose of meter reading and if
entrance is refused or obstructed the electricity supply may be disconnected).
4.37
Under the common law, police officers, or citizens, have the right to
enter private property in specific situations such as following an offender who
is attempting to escape or to prevent a murder. However, entry upon property
in the execution of criminal law is often done under the authority of statute.
The legislation in relation to the power of police to enter premises in the
various Australian jurisdictions was enacted to overcome the limits on that
power arising from the High Court decision in Plenty v Dillon (1991) 171
CLR 635; 98 ALR 353. For example, s 19 of the Police Powers and
Responsibilities Act 2000 (Qld) allows a police officer to enter premises and
remain there for a reasonable time in circumstances that would otherwise
amount to a trespass. If the property is a private dwelling, the police cannot
enter without consent of the person in possession or unless they have a
warrant. There are exceptions to this; for example, a police officer may enter
private property without consent in order to save a life. See also Crimes Act
1914 (Cth) s 3T; Law Enforcement (Powers and Responsibilities) Act 2002
(NSW) ss 9–10; Police Administration Act 1978 (NT) s 119; Summary
Offences Act 1953 (SA) s 72B; Crimes Act 1958 (Vic) s 459A; Criminal
Investigation Act 2006 (WA) s 33.
Trespass ab initio
4.38 Where a person enters land pursuant to common law or statutory
authority and commits a wrongful act while on the land, the person is
deemed to have been a trespasser ab initio (from the beginning). The legality
of the entry is vitiated by the illegal act: see The Six Carpenters’ Case (1610) 8
Co Rep 146a; 77 ER 695; Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB
299; O’Brien v Shire of Rosedale [1969] VR 112.
If the plaintiff gave consent and the consent is later revoked, the entrant
becomes a trespasser upon failing to leave within a reasonable time. In
contrast, the doctrine of trespass ab initio applies to persons who are
permitted to enter a plaintiff’s land under the provisions of a statute (for
example, an electricity meter reader) or under the common law (for example,
a police officer in pursuit of a felon).
4.39 By committing some positive wrongful act (misfeasance, not mere
nonfeasance), the entrant is treated as a trespasser from the time of entry, no
matter how innocent or proper the conduct up until the time of the abuse.
This doctrine is not without its critics: see for example, Barker v R (1983) 153
CLR 338; 47 ALR 1 per Brennan and Deane JJ. Lord Denning MR, one of the
well-known critics of the doctrine, however, used it to make minicab drivers
liable for unlawfully touting for business. In Cinnamond v British Airports
Authority [1980] 1 WLR 582, the British Airports Authority prohibited six
minicab drivers from entering Heathrow Airport. Lord Denning stated (at
588):
… when one of these car-hire drivers picks up a passenger at a London hotel and drives to the
airport, he has a right to enter so as to drop his passenger and luggage. But the driver has no
right whatever to hang about there so as to “tout” for a return fare. By so doing he is abusing the
right which is given to him by the law: and that automatically makes him a trespasser from the
beginning.
[page 70]
4
Fault
4.40 As it is a trespass action, the interference to the plaintiff’s possession
of the land must be by the fault of the defendant, that is, the act must be
intentional or negligent. The fact that the defendant is mistaken in the belief
that they have consent or lawful authority to enter the land does not make the
entry unintentional: Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294.
In Public Transport Commission (NSW) v Perry (1977) 137 CLR 107; 14
ALR 273, a passenger at a railway station had an epileptic fit and fell onto the
tracks, where she was not permitted to go. A majority of the High Court of
Australia held that she was not a trespasser on the railway tracks, as she had
gone onto them involuntarily under the effects of the fit. Similarly, in Smith v
Stone (1647) Style 65; 82 ER 533, the defendant who had been thrown onto
the plaintiff’s land had not committed an intentional act and was not at fault.
In League Against Cruel Sports Ltd v Scott [1986] QB 240, it was held that
the master of the hounds was liable for the trespass of the hounds entering the
plaintiff’s land if the master had intended the hounds to enter or failed to
prevent them from entering through negligence.
5
Examples of Actionable Interferences
4.41 The most common forms of trespass to land are unauthorised entry
or failure to leave after consent has been revoked. However, trespass may
consist of any of the following forms, provided there is no lawful justification.
Placing or Leaving Objects on Land
4.42 A person who places or throws any material object onto the land of
the plaintiff commits a trespass: Westripp v Baldock [1939] 1 All ER 27 (a
ladder placed against the wall); Watson v Cowen [1959] Tas SR 194 (earth);
Smith v Stone (1647) Style 65; 82 ER 533 (a person); Jones v Stones [1999] 1
WLR 1739 (flower pots on wall).
In Konskier v B Goodman Ltd [1928] 1 KB 421, the defendants had
permission from the owner of an adjoining house to pull down part of a
chimney in return for their promise to the owner that the chimney would be
rebuilt and any damage made good. Rubbish was left on the roof of the house
which caused the gutters to block and flooding in the basement. The court
held that the defendants only had a limited licence and were bound to remove
the rubbish within a reasonable time after their work was completed. By
leaving the rubbish, a trespass was committed and for every day it remained it
was a continuing trespass: see 4.46.
Animals
4.43 A person may be liable for trespass to land in respect of an entry on
land by animals where that person directed their entry, for example, by
ordering or encouraging the animals or by negligently failing to prevent their
entry (for example, the master of a hunt in respect of hounds: see Beckwith v
Shordike (1767) 4 Burr 2092; 98 ER 91).
[page 71]
That person may also be liable vicariously for employees, agents or others
over whose conduct control is exercised by them, provided they commit a
trespass: League Against Cruel Sports Ltd v Scott [1986] QB 240. For liability
for animals, see Chapter 26.
Transient Interferences with Airspace
4.44 Land includes the airspace at a height which is for the ordinary use
and enjoyment of the land and the fixtures upon it: Bernstein v Skyviews &
General Ltd [1978] QB 479. It was originally thought there could be no
trespass by mere incursion into the airspace without touching the surface of
the land. In Pickering v Rudd (1815) 4 Camp 219; 171 ER 70, Lord
Ellenborough expressed an early view that the passage of a balloon in flight
could not be a trespass unless it actually landed. In Clifton v Bury (1887) 4
TLR 8, it was held that bullets fired from a rifle range on nearby land which
passed over the plaintiff’s land at 75 ft was not a trespass in the strict sense of
that term (although it could form the basis for nuisance as an action on the
case), but that it would be a trespass if the bullets fell onto the land.
4.45 However, the better view is that a transient interference with the
airspace may be a trespass. In Davies v Bennison (1927) 22 Tas LR 52, the
defendant fired at a neighbour’s cat on the neighbour’s roof. The bullet killed
the animal and remained in its body so that in a sense it remained in the
airspace above the land. It was held that a wrongful intrusion (even if only
transient) into the airspace over land of another could constitute trespass to
land, at any rate at such a low height.1
Continuing Trespass
4.46 An interference with land that is continuous, in the sense that the
trespasser remains on the land or the goods remain on the land, is referred to
as a ‘continuing trespass’. There is a separate cause of action for each day the
interference continues: Konskier v B Goodman Ltd [1928] 1 KB 421.
Therefore, a new cause in trespass to land arises each day and a new
limitation period commences each day. Courts will take into account the fact
that an interference is a continuing trespass if the plaintiff seeks the remedy of
an injunction, as it may add weight to the argument that an award of damages
would not be an adequate remedy: see 4.65.
4.47 Where there is a continuing trespass, a subsequent transferee of the
land may sue: Hudson v Nicholson (1839) 5 M & W 437; 151 ER 185. In the
case of things left on land, the doctrine is limited to failure to remove
trespassory chattels but does not apply to a continuing failure to restore: Clegg
v Deardon (1848) 12 QB 576; 116 ER 986; Lord v McMahon [2015] NSWSC
1619 at [156].
6
Remedies
4.48
The remedy for trespass to land will depend upon the type of
interference and whether the plaintiff suffered any loss.
[page 72]
Self-help
4.49 A plaintiff in possession of the land may use force to resist a wrongful
or attempted entry by a trespasser, but the force must be reasonable.
Reasonable force may be used to remove a trespasser who fails to leave within
a reasonable time of being requested: Cowell v Rosehill Racecourse Co Ltd
(1937) 56 CLR 605.
In Hemmings v Stokes Poges Golf Club [1920] 1 KB 720, the golf club had
employed Hemmings under an employment contract which included a right
for him to occupy a cottage. His employment was terminated but he refused
to leave the cottage. The golf club sent some men who entered the cottage
with reasonable force and removed the plaintiff, his wife and their furniture.
He sued for assault, battery and trespass to land. The English Court of Appeal
held that in the absence of proof of the use of unreasonable force, no cause of
action arose.
4.50 A plaintiff ousted by a trespasser may regain possession by using
force. Therefore, an owner or lawful tenant can expel squatters or ‘sit in’
demonstrators. However, the force used must be reasonable and, if a plaintiff
is in doubt, he or she should enlist the aid of the police or pursue a civil action
for recovery of possession. The lessor’s right to re-enter demised premises to
expel a lessee exists under the common law and under statute.
In Queensland, ss 277 and 278 of the Criminal Code authorise the use of
reasonable force but the act of self-help cannot cause bodily harm.
Damages
4.51
In SSYBA Pty Ltd v Lane [2013] WASC 445 at [81] it was stated:
A trespass to land always involves an award of damages even if the amount is nominal. It
vindicates the owner’s right to quiet possession. A trespass which causes actual damage entitles
the plaintiff to compensation for that damage.
The damages awarded will take into account the loss suffered and the
nature of the plaintiff’s interest in the land: Finesky Holdings Pty Ltd v
Minister for Transport for Western Australia (2002) 26 WAR 368 at [260].
Nominal damages
4.52 Nominal damages may be awarded for trespass to land where an
interference with the plaintiff’s possession has been proven but there is no
actual damage: Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87; Finesky
Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26
WAR 368. An example can be found in Hill v Higgins [2012] NSWSC 270
where it was held that the trespass to the plaintiff’s land by the deposit of
bricks and the unauthorised entry by the defendant to remove the bricks had
caused no loss and awarded nominal damages in the amount of $220.
In Finesky Holdings Pty Ltd v Minister for Transport for Western Australia
(2002) 26 WAR 368, although the defendant had encroached upon the land
that the plaintiff had an interest in as a sublessee (entitled to establish a
quarry and mine it), there was no evidence that the plaintiff ever intended to
do build a quarry. As there was no diminution
[page 73]
in the value of the land, and taking into account the plaintiff’s interest in the
land, an award of $1000 nominal damages was made.
However, the object of trespass to land is to protect the plaintiff’s right to
exclusive occupation of the land; so even though there may be no damage to
the land, the nominal damages may be quite significant. For example, in TCN
Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, nominal damages of
$25,000 were awarded. Spigelman CJ stated (at [178]):
General damages for trespass should reflect the significant purpose of vindicating the plaintiff’s
right to exclusive occupation.
4.53 Should the defendant obtain some benefit from the trespass (for
example, occupying it as a tip, as in Whitwham v Westminster Brymbo Coal
and Coke Co [1896] 1 Ch 894), the court may order payment of a reasonable
sum for the use resulting in the benefit. In Yakamia Dairies Pty Ltd v Wood
[1976] WAR 57, the plaintiff recovered the value of agistment for the
defendant’s trespass in pasturing cattle on the plaintiff’s land. See also
Downing v WIN Television (NSW) Pty Ltd (No 2) [2011] NSWSC 563, where
the trespass was the failure to remove a television tower, building and fence
from the plaintiff’s land. Damages were assessed as ‘the reasonable or market
rental value of the land during the time of the defendants’ occupancy’: at [9].
See also 4.69.
Compensatory damages
4.54 If there is damage resulting from the trespass, a plaintiff is entitled to
recover compensatory damages as ‘a trespasser is liable for any loss he or she
causes to the land or the value of the land in question’: Windridge Farm Pty
Ltd v Grassi (2011) 254 FLR 87 at [145]. Such damages are awarded for the
actual damage suffered by the plaintiff that is the natural and probable
consequence of the trespass: Palmer Bruyn & Parker Pty Ltd v Parsons (2001)
208 CLR 388; 185 ALR 280.
4.55 Where the trespass has caused material damage to the land, the
measure of compensatory damages has traditionally been regarded as the
diminution in the value of the property caused by the trespass: Jones v Shire of
Perth [1971] WAR 56. Now the courts are more realistic in assessing the
damage and the method of assessment will depend upon what is considered
reasonable in the circumstances: see Fish Steam Laundry Pty Ltd v Col
Johnson Electrics Pty Ltd (1992) 2 Qd R 585; Port Stephens Shire Council v
Tellamist Pty Ltd (2004) 235 LGERA 98 at [186] and [207].
4.56 If the decrease in the value of the land is awarded, the courts compare
the value of the land immediately prior to the trespass and after. In Port
Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 at [215], the
basis of the valuation method was explained as:
… what would a person desiring to buy the land have had to pay for it on the relevant date to a
vendor willing, but not desirous, to sell it for a fair price.
Any subsequent appreciation in the value of the land due to market forces
is disregarded: Port Stephens Shire Council v Tellamist Pty Ltd.
[page 74]
4.57 In the appropriate case, the cost of reinstatement, as opposed to the
decrease in value of the land, is admissible as the measure of damages: Evans v
Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36; C R Taylor
(Wholesale) Ltd v Hepworths Ltd [1977] 1 WLR 659; [1977] 2 All ER 784. In
SSYBA Pty Ltd v Lane [2013] WASC 445, the defendant had attached several
brackets to the wall of the plaintiff’s neighbouring building without consent,
constituting a trespass. These brackets, along with their load, caused
significant damage to the structure of the wall. When the defendant did
remove the brackets, they were cut off with an angle grinder, leaving the bolts
in the wall. The court accepted the evidence of the schedule of repair to award
compensatory damages. Damages were awarded to cover the cost of having
the remaining bolts removed and the wall repaired. In addition consequential
loss was allowed that included supervision of the work, a survey of the
boundaries of the adjoining properties and the cost of removing, storing and
returning the stored goods of the premises during the restoration.
4.58 Restoration may not be a proper measure of the damage if it is
unreasonably disproportionate to the reduction in value. In Jones v Shire of
Perth [1971] WAR 56, soil was removed causing loss of support to the
plaintiff’s land, thereby reducing its value by $2000. The cost of restoration at
$10,000 was regarded as too disproportionate. In Parramatta City Council v
Lutz (1988) 12 NSWLR 293 at 335, McHugh JA referred to this as the
‘fundamental rule’:
When the choice is between damages which constitutes the value of the property destroyed or
the cost of reinstating and restoring that property and the cost of restoration exceeds the value
of the destroyed property, a plaintiff is entitled to the cost of reinstatement only if it is
reasonable to have the property reinstated and restored: Evans v Balog; Evans v Progress &
Securities Pty Ltd [1976] 1 NSWLR 36 at 39–40 per Samuels JA.
See Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14, where the
court held there were no special circumstances to justify awarding the cost of
reinstating the property ($60,000) when the decrease in value was $17,000
and the value of the land was $70,000.
4.59 In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185
ALR 280, the High Court held that damages can be recovered in cases of
intentional torts for the harm that is the natural and probable consequence of
the tortious act. Reasonable foreseeability is not the correct test. For example,
in Hogan v A G Wright Pty Ltd [1963] Tas SR 44, the plaintiff received
damages for the consequential loss of a horse which was killed after it escaped
through a broken fence which was damaged by the defendant’s trespassing
bulldozer.
4.60
Where chattels are severed from the land by an act of wilful
wrongdoing, for example sandstone is cut and taken from a quarry or gravel
removed, the plaintiff may recover either the value of the chattel at the
moment of severance or the diminution in the value of the land. See Port
Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98, where it was
held that the removal of trees did not cause any diminution in the value of the
land and
[page 75]
nominal damages were awarded for the trespass. If the trespass was innocent,
the defendant may be entitled to retain the cost of severance: BilambilTerranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465.
Exemplary and aggravated damages
4.61 If a trespass is done wilfully, or there are aggravating circumstances,
aggravated and exemplary damages may be awarded: Greig v Greig [1966] VR
376; [1966] ALR 989.
4.62 Exemplary damages Exemplary damages are awarded by a court to
punish and deter the defendant. In XL Petroleum (NSW) Pty Ltd v Caltex Oil
(Aust) Pty Ltd (1985) 155 CLR 448 at 472, the High Court awarded exemplary
damages in relation to trespass to land ‘in an amount that would be likely to
have a deterrent effect — sufficient to make Caltex smart’. However, it was
noted in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [185],
that exemplary damages are rarely awarded for trespass to land and require
something more than just evidence of fault. See also New South Wales v Ibbett
(2006) 229 CLR 638; 231 ALR 485 at [33]. In Craftsman Homes Australia Pty
Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 at [949], the amount of
$120,000 was awarded in exemplary damages, the court noting:
The circumstances of this trespass were so bad that they should be punished and future like
trespasses firmly discouraged.
4.63
Aggravated damages Aggravated damages are a form of
compensatory damages, awarded because the defendant’s reprehensible
conduct aggravated the injury to the plaintiff’s dignity or feelings. In New
South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485, the plaintiff’s son
arrived at her home in the early hours of the morning driving his van with the
police in pursuit. The son drove the van into the garage and closed the door
with the remote control. As the door was closing, an officer dived under the
door. The plaintiff entered her garage to find the officer pointing a pistol at
her son. Both the son and the plaintiff ordered the officer to leave the
premises. Pointing the pistol at the plaintiff, the officer ordered the garage
door to be opened to allow entry to another police officer. The entry to the
plaintiff’s property was held not to have been done with lawful justification
and amounted to trespass to land. In assessing damages, the High Court
awarded aggravated damages, noting that such damages compensate a
plaintiff for injury resulting from the circumstances of the interference: at
[30]. The court stated (at [31]):
The interest of the plaintiff against invasion of the exclusive possession of the plaintiff extends to
the freedom from disturbance of those persons present there with the leave of the plaintiff, at
least as family members or as an incident of some other bona fide domestic relationship. The
affront to such persons may aggravate the infringement of the right of the plaintiff to enjoy
exclusive and quiet possession.
4.64 In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, the
plaintiff’s claim for damages for trespass to land included damages for mental
trauma. The New South Wales Court of Appeal held that it was unnecessary
to decide whether damages for personal injury, specifically psychiatric injury,
may be recovered in an action for trespass to land, but
[page 76]
noted that it was undesirable to lay down a rule that such damages were not
recoverable. It was reasoned, in that case, that filming on premises and
attempting to conduct an interview would not result in personal injury, such
as mental trauma, to a person of normal fortitude. However, the court did
award aggravated damages, Spigelman CJ saying (at [107]):
Humiliation, injured feelings and affront to dignity may be a natural and probable consequence
of intrusion by media on private property. Such damage is compensable as aggravated damages.
Such damage is different in kind to mental trauma.
Aggravated damages were also awarded in Craftsman Homes Australia Pty
Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519, where a reporter and
film crew deceived the plaintiff by pretending to be potential clients. Smart AJ
stated (at [942]):
The hurt to feelings, humiliation and affront to dignity experienced by Mr Cox was aggravated
by the way in which the first and third defendants acted in the course of their trespass. That
included Mr Fordham letting the camera crew into the home at Edmondson Park, then, with
cameras rolling, confronting Mr Cox with broad general allegations of poor work and an
accusation of having left a trail of devastation and filming him. No prior notification was given.
The statement that Mr Cox should answer questions rather than “running away” aggravated the
hurt, especially when it was shouted out from the front door while Mr Fordham and the camera
crew were hovering around. Mr Cox must have been aware that his reputation and the business
in which he was deeply involved were being attacked and damaged.
See also Balven v Thurston [2015] NSWSC 1103 (aggravated damages
awarded as trespass to land was committed in the context of intimidation and
the plaintiff’s mental harm was the intended or probable consequence).
Injunction
4.65 The courts have the power to grant an injunction ‘to restrain any
actual, threatened or apprehended trespass to land’: see, for example, District
Court of Queensland Act 1967 (Qld) s 68(1)(b)(xii). The granting of an
injunction is discretionary and the onus is upon the party seeking the
injunction to prove that damages would be inadequate: Lincoln Hunt
Australia Pty Ltd v Willesee (1986) 4 NSWLR 457.
4.66 An injunction may order the tortfeasor to cease or not do an act that
amounts to a tortious interference (prohibitory injunction) or to do a
particular act (mandatory injunction). If it is necessary to reserve the status
quo of the parties until a court resolves the issues in dispute, an interlocutory
injunction may be ordered. In granting an interlocutory injunction, the court
must be satisfied that there is a serious question to be tried and that the
balance of convenience is in favour of the order.
4.67
If the trespass to land is a continuing one, there is a stronger
argument for the granting of an injunction. In Bendal Pty Ltd v Mirvac
Project Pty Ltd (1991) 23 NSWLR 464, an injunction was granted to restrain a
trespass to the plaintiff’s airspace. The court held that the trespass was a
continuing one and, as the evidence pointed towards the conclusion that the
defendant would not be deterred by an award of damages against it, a
mandatory injunction was appropriate.
[page 77]
4.68 An injunction may be refused even if a plaintiff makes out a good
cause of action: Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. No
injunction will be granted if the trespass is past and completed: see Sherman v
Condon [2014] QDC 189. A court may award damages in lieu of an
injunction, if it is satisfied that the harm to the plaintiff is small and capable
of being estimated in monetary terms and to grant the injunction would be
oppressive to the defendant: Shelfer v City of London Electric Lighting Co
[1895] 1 Ch 287.
See also Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20
VR 311, an appeal against the granting of an injunction requiring the
appellant to remove all cladding attached to the surface wall of its building. In
granting the injunction, the trial judge had taken into account that the
encroachment into the respondent’s airspace was a continuing one which
interfered with their potential use of their land. Also relevant was the fact that
the respondent had not delayed in taking action, that the encroachment
conferred upon the appellant a commercial benefit and the appellant had
made no real effort to resolve the issues nor made any reasonable offer of
damages. On appeal, the appellant argued that the judge should have awarded
damages in lieu of the injunction and the injunction would cause them
hardship. The Victorian Court of Appeal dismissed the appeal, holding that a
mandatory injunction was appropriate in the circumstances. As DoddsStreeton JA stated (at [139]):
The harm posed to the [appellant] by an injunction is, as in LJP Investments, the removal of a
non-structural addition which will restore the status quo. It will not require demolition of the
building or result in loss of access or other major detriment, although it entails cost and a loss of
improved appearance. As [the trial judge] implicitly recognised, an injunction will not impose
hardship on the [appellant] out of all proportion to the injury to the [respondent] from a refusal
of such relief, and will not constitute oppression.
Mesne Profits
4.69 If the trespass consists of the defendant temporarily occupying or
using the land, mesne profits may be claimed. Mesne profits are claimed from
the time the wrongful possession commenced until the ejectment of the
defendant. The measure of mesne profits is the value of the market rent that
the trespasser should have been paying for the period of occupation: Lamru
Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432; Port Stephens Shire Council v
Tellamist Pty Ltd (2004) 235 LGERA 98 at [193]–[194]. In Davison (as
personal plaintiff representative of the estate of Staines, decd) v Wilkinson
[2006] QSC 212, the respondent was living in a unit that had been left by his
ex-wife, under the terms of her will, to her five daughters as joint tenants.
Notice was given to the respondent requiring him to vacate the premises but
he failed to do so. The court awarded damages assessed at the rental value for
the period of wrongful occupation.
Statutory Relief
4.70 There are various statutes that provide for damages or other remedies
for acts of trespass to land. For example, the Supreme Courts have power to
grant relief to an adjacent or encroaching owner in respect of encroachment
of buildings.
[page 78]
Part 11 of the Property Law Act 1974 (Qld) involves a statutory code for
encroachment. Under the legislation, either the encroaching or the adjoining
owner may apply to the court for relief. The court may order payment of
compensation to the adjacent owner or order that there be a transfer or lease
of the subject land to the encroaching owner: Property Law Act 1974 (Qld) s
185(1). The minimum compensation payable is the unimproved capital value
of the subject land if the encroachment was innocent and three times that
value in other cases: s 186(1).
See also the Encroachment of Buildings Act 1922 (NSW); Encroachment of
Buildings Act 1982 (NT); Encroachments Act 1944 (SA); Property Law Act
1969 (WA). The statutory provisions do not exclude the operation of
common law principles; for example, in Bunney v South Australia (2000) 77
SASR 319, a school building encroached on a private road and the owner was
awarded $900 compensation for the continuing trespass. In the Australian
Capital Territory, Tasmania and Victoria, the common law applies enabling
the encroached landowner to take an action in trespass to land and seek
compensatory damages or an injunction.
7
Limitation Period
4.71 As the interference that forms the basis for an action in trespass to
land involves property, the limitation period is six years except in the
Northern Territory where it is three years: Limitation Act 1985 (ACT) s 11(1);
Limitation Act 1969 (NSW) s 14(1)(b); Limitation Act 1981 (NT) s 11(1)(b);
Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act
1936 (SA) s 35; Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act
1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 12. See also Chapter 14.
Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 5.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 12.
1.
See the extensive review of cases dealing with bullets fired over land in P Butt, ‘Moot Point’ (1978)
52 ALJ 160.
[page 79]
Chapter 5
Trespass to Personal Property
1
5.1
Introduction
There are three actions that encompass trespass to personal property:
1.
trespass to chattels;
2.
conversion; and
3.
detinue.
Each action is separate and the elements of each are quite distinct.
However, as they are all trespass actions, they all require a direct interference
and that the defendant be at fault.
5.2 The subject matter of all of the actions is personal property. The term
‘personal property’ describes moveable property and is interchangeable with
both of the words ‘goods’ and ‘chattels’. All personal property may form the
subject matter of any of the trespass actions above, provided the law
recognises that someone can have title to the property.
5.3 Goods which are incapable of being regarded as property cannot form
the subject matter of the actions. For example, in Doodeward v Spence (1908)
6 CLR 406; 15 ALR 105, the High Court held that a corpse is not property and
could not form the basis of an action in trespass. However, it has been noted
that parts of a corpse might be property by virtue of dissection or
preservation for the purposes of exhibition or teaching: R v Kelly [1998] 3 All
ER 741. In Roblin v The Public Trustee for the Australian Capital Territory
[2015] ACTSC 100, it was held that the stored semen from a person
constitutes property.
Intangible property cannot be the subject of a trespass action. In Hoath v
Connect Internet Services Pty Ltd (2006) 229 ALR 566, it was held that the
domain name, the IP addresses and the autonomous system (AS) number
were intangible property and were not embodied in any chattel which could
be owned or possessed by the plaintiff and therefore could not form the basis
of an action in trespass to personal property. However, although money in a
bank account is not personal property (Ferguson v Eakin t/as Price Brent
[1997] NSWCA 106 at [9]), a cheque representing the funds may form the
basis of an action: Hunter BNZ Finance Ltd v CG Maloney Pty Ltd (1989) 18
NSWLR 420.
5.4 As real property cannot form the subject of any of the trespass to
personal property actions, the proper action in such instances being trespass
to land. Goods that are attached
[page 80]
to land (fixtures) are regarded by the law as part of the land: Reid v Smith
(1905) 3 CLR 656 at 667; 12 ALR 126. However, upon detachment from the
land, the item becomes a chattel and may be the subject of an action in
trespass: Finesky Holdings Pty Ltd v Minister for Transport for Western
Australia (2002) 26 WAR 368 at [52].
5.5 All of the torts involving trespass to personal property protect the
plaintiff’s possession of goods — ownership is not required to sue: Webb v
Fox (1797) 7 Term Rep 391; 101 ER 1037. Legal possession of personal
property can take the following forms:
actual possession — the plaintiff has the goods in their physical
control: Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR
14,360;
constructive possession — the goods are not in the plaintiff’s physical
control, but they retain control of the goods: Kent v Parer [1922] VLR
32; and
right to possession — the plaintiff has a legally enforceable right to
gain possession of the goods: Gatward v Alley (1940) 40 SR NSW 174.
A right to possession is often an incident of ownership.
2
Trespass to Chattels
5.6 The term ‘trespass to chattels’ may be used to encompass all three of
the nominate torts but it also refers, in a technical sense, to a specific
nominate tort.
Trespass to chattels, as a nominate tort, consists of any act of direct
interference with personal property in the possession of another, without
lawful justification. While it is directness that makes it a trespass in a formal
sense, in practice it is the intentional nature of the interference which is
significant. To establish trespass to chattels:
the plaintiff must have the requisite title to sue;
there must be a direct interference with goods; and
the defendant must be at fault.
Title to Sue
5.7 The general statement of law in respect of title to sue in trespass to
chattels is that only the person in actual or constructive possession of the
goods at the time of the interference may sue: Penfolds Wines Pty Ltd v Elliott
(1946) 74 CLR 204.
5.8 There are four exceptions to the requirement of actual or constructive
possession. The common feature of each of the exceptions is a notional
possession by the person out of actual possession, through either possession
through another in respect of whom there is an association, or where a gap in
possessory title to sue might occur. In each of the four exceptions, the plaintiff
may sue for trespass to chattels, although the plaintiff does not have the
requisite possession:
1.
a trustee may sue for direct inference to goods in the possession of a
beneficiary (Barker v Furlong [1891] 2 Ch 172);
2.
a personal representative (executor or administrator of a deceased
estate) may sue for the trespass to the goods of a deceased occurring
prior to the personal
[page 81]
representative taking actual possession (Tharpe v Stallwood (1843)
5 Man & G 760; 134 ER 766);
3.
the owner of a franchise may sue for an interference with franchise
chattels which took place prior to actual possession being taken by
the owner (Bailiffs of Dunwich v Sterry (1831) 1 B & Ad 831; 109 ER
995); and
4.
a person with a right to immediate possession may sue in trespass
to chattels where the direct interference by a third person is to
possession of a servant, agent or a bailee holding under a revocable
bailment: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.
Bailment exception
5.9 The exception in (4), above, is of most practical importance. If a
servant or agent is in possession of the goods, the law regards that the master
or principal is in actual possession and therefore has title to sue in trespass to
chattels.
If the goods are the subject of a bailment, there must be a right of
possession to those goods by the plaintiff. A bailment is a delivery of goods
from one person (the bailor) to another (the bailee) for some purpose upon a
contract, express or implied, that, after the purpose has been fulfilled, the
goods will be re-delivered to the bailor: Hobbs v Petersham Transport Co Pty
Ltd (1971) 124 CLR 220.
During a bailment, the bailor parts with possession of the goods but not
with ownership. For example, a bailment exists when a person leaves their
goods to be fixed by another: Hollier v Rambler Motors (AMC) Ltd [1972] 2
QB 71; 1 All ER 399 (car left with mechanic to be fixed).
5.10 Under the bailment exception, a person who is not in actual or
constructive possession of the goods at the time of the interference will have
title to sue in trespass to chattels if:
there was a revocable bailment of the goods at the time of the
interference, giving the plaintiff an immediate right to possession; and
the interference was by a person other than the bailee.
5.11 Revocable bailment A revocable bailment (or bailment at will) is
one which allows the bailor at any time to repossess their goods: Manders v
Williams (1849) 4 Exch 339; 154 ER 1242. Such a bailment will arise upon the
terms of the bailment being met or the terms of the bailment being breached
by the bailee: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65
NSWLR 400.
In Hill v Reglon Pty Ltd [2007] NSWCA 295 at [41], it was stated that:
The general principle is that in a simple bailment, repudiation of the bailment brings the
bailment to an end: The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400;
[2006] NSWCA 22 per Young CJ in Eq at [63]; Palmer on Bailment, 2nd ed, (1991) Sydney, Law
Book Company Ltd. Both parties accepted that a reference to an act inconsistent with or
repugnant to the bailment was a reference to a repudiation of the bailment.
In that case, there was a hire agreement which allowed the respondent’s
scaffolding to be hired out by the bailee. The terms of the bailment were
breached when the scaffolding
[page 82]
was given by the bailee to another party to on-hire. Due to the breach of the
terms of the bailment, the respondent had an immediate right to possession:
at [84]–[85].
5.12
Interference The interference must have been committed by a
person outside of the bailment relationship. Therefore, the exception will not
apply if the bailee voluntarily delivered possession to the third party (Penfolds
Wines Pty Ltd v Elliott (1946) 74 CLR 204) or if the interference was
committed by the bailee.
In Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, the plaintiff wine
and spirit merchant and vigneron claimed an injunction to restrain James
Elliott, a hotelkeeper operating the Central Hotel at Singleton, New South
Wales, from collecting, disposing of, parting with, possessing, or in any way
dealing or handling the plaintiff’s bottles or placing any other liquor in them.
The plaintiff, along with 40 other bottlers, was a member of a branded bottle
association that desired to protect owners of bottles who sold liquid products
as the contents but not the bottles themselves. The plaintiff’s bottles were
embossed with the words, ‘This bottle is the property of Penfolds Wines Ltd’
or similar wording. The invoices accompanying the bottles referred to the
brand and confirmed that the company merely loaned the bottles and that
when the contents were used the bottles had to be returned on demand.
Penfolds alleged that Elliott had been receiving, collecting and handling its
branded bottles by filling them with other alcohol. The only specific evidence
before the trial judge was that Elliott filled two bottles, which had been
brought to him by his brother, with wine, and then sold the wine in the
bottles to a Spencer Moon for eight shillings. The action was based on both
trespass to chattels and conversion. A majority of four (Latham CJ dissenting)
held there was no title to sue in trespass to chattels. In the words of Dixon J
(at 224–5):
In English law what amounts to an infringement upon the possessory and proprietary rights of
the owner of a chattel personal is a question still governed by categories of specific wrong.
Trespass was the wrong upon which reliance appeared to be placed in support of the appeal
when it was opened, but, in the end, it seemed to be conceded that this cause of action was
untenable. I think that it is quite clear that trespass would not lie for anything which the
foregoing facts disclose. Trespass is a wrong to possession. But, on the part of the respondent,
there was never any invasion of possession.
At the time he filled the two bottles his brother left with him, he himself was in possession of
them. If the bottles had been out of his own possession and in the possession of some other
person, then to lift the bottles up against the will of that person and to fill them with the wine
would have amounted to trespass. The reason is that the movement of the bottles and the use of
them as receptacles are invasions of the possession of the second person. But they are things
which the man possessed of the bottles may do without committing trespass. The respondent
came into possession of the bottles without trespass. For his brother delivered possession to him
of the two bottles specifically in question.
On the question of the bailment exception, it was stressed that it is only
when a servant, agent or bailee is holding goods under a revocable bailment
and those goods are the subject of a trespass by a third party that the bailor
may sue:
It is submitted that the correct view is that the right to possession, as a title for maintaining
trespass, is merely a right in one person to sue for a trespass done to another’s possession; that
[page 83]
this right exists whenever the person whose actual possession was violated held as servant, agent,
or bailee under a revocable bailment for or under or on behalf of the person having the right to
possession: at 227 per Dixon J.
Penfolds Wines Pty Ltd v Elliot also involved a claim in conversion: see
5.29.
5.13 See also Wilson v Lombank Ltd [1963] 1 All ER 740, where the
plaintiff bought a car from someone who was not the true owner and
therefore title did not pass to the plaintiff. The car needed repair so the
plaintiff left it at a garage. The defendants thought that they owned the car so
they came and took it away from the garage. In fact, the defendants did not
own the car either. It was held that the plaintiff could succeed in an action for
trespass to goods against the defendants, even though the plaintiff was not the
true owner and even though the defendants subsequently had passed the car
on to the true owner. The defendants argued that the plaintiff was no longer
in possession of the car when they took it away, as it was then in the
possession of the garage. Hinchcliffe J rejected this argument, saying (at 743):
[I]n my judgment the plaintiff was in possession of the car; not only did he have the right to
immediate possession, but I do not think that, in the circumstances of this case, the plaintiff ever
lost possession of the car … On the view which I have formed, that the plaintiff never lost
possession of the motor car, it seems to me that the defendants wrongfully took the car and that
the plaintiff is entitled to recover damages.
Finders
5.14 The expression ‘finders keepers’ is to some extent true, since in the
absence of the true owner, a finder does gain possessory rights over the goods.
If a finder takes possession of the goods, they are under an obligation to make
reasonable attempt to find the owner and to take reasonable care of the goods
until returned to the owner: Parker v British Airways Board [1982] QB 1004.
Therefore, a person who interferes with the actual or constructive possession
of the finder may be liable in trespass to chattels, as the finder has title to sue
in the tort. This is due to the fact that trespass to personal property relies on
possession, not on ownership.
5.15 If the finder obtains possession during the course of employment,
possession is vested in the employer and not in the finder personally: Willey v
Synan (1937) 57 CLR 200. Similarly, if the finder is on someone else’s land
and the chattel is attached to or under it, the occupier of the land has title to
sue, not the finder: Elwes v Brigg Gas Co (1886) 33 Ch D 562. However, if the
goods are on another’s property, there must be some obvious intention on the
part of the occupier to control the property and the goods upon it: Parker v
British Airways Board [1982] QB 1004: see 5.38.
Effect of statutory provisions
5.16 It should be noted that statutory provisions may impinge upon an
immediate right to possession. For example, s 178 of the National Credit
Code (Cth) provides that goods subject of a consumer lease cannot be
repossessed by the lessor unless 30 days notice has been given. Repossession
without the required statutory notice is unlawful: Lawrence v Keenan (1935)
53 CLR 153. No immediate right to possession based upon non-payment
[page 84]
can arise until a required statutory notice is served: Henry Berry & Co Pty Ltd
v Rushton [1937] St R Qd 109.
5.17
The Personal Property Securities Act 2009 (Cth) establishes the
Personal Property Securities Register which allows data to be kept of security
interests in personal property in all Australian jurisdictions: s 147. The Act
protects purchasers of personal property where they are not aware of an
existing security interest: see Pt 2.5. For example, a purchaser of a motor
vehicle may search the Personal Property Securities Register for the vehicle’s
serial number to ensure that there is no security interest registered: s 45.
However, the search must be carried out immediately before the purchase.
See also Candy v Christensen [2007] QCA 114, where the appellant alleged
that a swamp wallaby had been removed from his possession by Queensland
Parks and Wildlife officers and claimed in trespass. The Court of Appeal held
that, under the Nature Conservation Act 1992 (Qld), the wallaby was the
property of the state as it was a protected animal and, at the time it was seized,
the appellant did not hold a permit to keep the wallaby pursuant to the Act. It
was held that the appellant had no right to possession of the wallaby and the
claim for damages for its removal failed.
Direct Interference
5.18 As the action is a trespass, the defendant’s act must be direct and not
merely consequential: see Chapter 2. Therefore, in Hutchins v Maughan
[1947] VR 131, it was not a trespass when the plaintiff’s dog died after eating
poisoned baits laid by the defendant as the interference with the dog was
consequential not direct. See also Rural Export & Trading (WA) Pty Ltd v
Hahnheuser (2007) 243 ALR 356 at [72].
It is not essential that the defendant’s act consist of bodily contact with the
chattel; it is sufficient if the defendant brings some material object into
contact with the plaintiff’s chattel, for example, driving a motor vehicle into
the goods or hitting the goods with some object which is thrown. If goods are
capable of moving of their own volition (for example, cattle), it will be
trespass if they are chased away by acts intended to move them, even without
any physical contact, for example, by the use of noise.
5.19 The gist of the action of trespass to chattels is a wrong against
possession: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204. In Penfolds
Wines Pty Ltd v Elliott, Latham CJ and Dixon J provided examples as to what
types of interference may amount to a trespass: at 214 and 229.
Taking or asportation of a chattel
5.20 In Kirk v Gregory (1876) 1 Ex D 55, the defendant was liable in
trespass for moving goods from one room of the house to another. The
defendant had moved the goods for safekeeping but they could not later be
found. As the defendant was not liable for the disappearance of the goods,
only nominal damages were awarded. See also Fouldes v Willoughby (1841) 8
M & W 540; 151 ER 1153, discussed at 5.40.
[page 85]
Handling of chattels without authority
5.21 In Vine v Waltham Forest London Borough Council [2000] 4 All ER
169, the court held that the ‘act of clamping the appellant’s car was a clear
trespass, to which the respondents had no defence unless they could establish
that the appellant had consented to her car being clamped or alternatively had
voluntarily assumed the risk of her car being clamped’: at 173. In Slaveski v
Victoria [2010] VSC 441, it was held that the handling of documents and
moving them within the premises was an actionable trespass.
5.22 It would appear that to be an actionable trespass there must be more
than a mere touching of the chattel, even though prima facie this would be a
direct interference: Wilson v Marshall [1982] Tas R 287 at 299–300. This may
be explained by the fact that if there is no damage by the touching, an action
in trespass would be trivial or vexatious.
Unauthorised use of chattels
5.23 Without an intention to deprive the plaintiff of possession, which
would be a conversion, the unauthorised use of chattels will amount to a
trespass. Latham CJ in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at
214 stated:
… unauthorised acts of riding a horse, driving a motor car, using a bottle, are all equally
trespasses, even though the horse may be returned unharmed or the motor car un-wrecked or
the bottle unbroken. The normal use of a bottle is as a container, and the use of it for this
purpose is a trespass if, as in this case, it is not authorised by a person in possession or entitled to
immediate possession.
See, for example, Schemmell v Pomeroy (1989) 50 SASR 450, where two 14-
year-old boys took a car joyriding and it was held to be a trespass as there was
a direct interference with the vehicle through its unauthorised use.
Fault
5.24
The act giving rise to the trespass must have resulted from the
defendant’s fault, that is, the interference with the goods was intentional or
negligent: see Chapter 2.
5.25 An interference may amount to trespass even if the defendant is
unaware of infringing another’s possession of the chattels. In National Coal
Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861, the defendant cut the
plaintiff’s underground electricity cable and the plaintiff sued in trespass. The
court held that the act did not constitute trespass as the defendant had not
intentionally severed the cable, nor had it been negligent as the defendant
neither knew, nor ought to have known, of the presence of the cable. Lack of
fault may be raised as the defence of inevitable accident: see 6.2.
5.26 The defendant interfering with the goods under the mistaken belief
that they are entitled to the goods is not sufficient to avoid liability as mistake
is not a defence to trespass: see 6.64.
[page 86]
Actionable Without Proof of Damage
5.27 All trespass actions are actionable per se and logically and for practical
reasons, it would be desirable for trespass to chattels to conform to the same
rule (as suggested in William Leitch & Co v Leydon [1931] AC 90 and in
certain dicta in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204). However,
there have been suggestions to the contrary as early as 1730: Slater v Swann
(1730) 2 Stra 872; 93 ER 906.
5.28 For example, in Wilson v Marshall [1982] Tas R 287, the Tasmanian
Supreme Court held that no trespass was committed by a police officer using
a piece of wire to unlock a car door. In the New Zealand decision of Everitt v
Martin [1953] NZLR 298, it was noted that a plaintiff’s interest in chattels is
not considered by the law as paramount as a plaintiff’s bodily integrity or
their possession of land, suggesting a need to prove damage to chattels in
trespass. It was held that a negligent trespass resulting in no damage to the
goods was not trespass. However, there is no Australian authority for this
proposition: see 5.77.
3
Conversion
5.29 The modern action for conversion derived from trover (from the
French trouver, meaning ‘to find’), which entailed fictional allegations that
the plaintiff had possessed goods, that they had been lost and the defendant
found them; that a demand for their return had been refused; and that the
defendant had converted them to personal use. It is the final element that is
important in the modern tort of conversion — a dealing with goods in a way
that expressly or impliedly denies the plaintiff’s right to possession.
To establish an action in conversion there must be:
title to sue;
a direct interference with the goods that amounts to a repugnant
dealing; and
fault of the defendant.
Title to Sue
5.30 To sue in conversion, the plaintiff must have an immediate right to
possession or be in actual or constructive possession of the goods at the time
of the interference: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.
In commercial dealings, the terms of the contract will often determine the
interest of the parties in the subject matter of the contract. In Management 3
Group Pty Ltd (in liq) v Lenny’s Commercial Kitchen’s Pty Ltd (2011) 281 ALR
482, the appellant entered into a purchase agreement with the respondent for
the supply of kitchen goods, on the terms that the respondent would retain
title to the goods unless it received full payment by the due date. The goods
were delivered to the development site in locked containers to which only the
respondent had access. The appellant went into voluntary administration and
failed to pay the balance owing on the goods by the due date. After that date
the client of the appellant, for which the goods were intended, paid the
respondent the balance owing and took possession of the goods. The
appellant sued its liquidators, client and the respondent in conversion. The
court held that by retaining the keys to the containers with
[page 87]
the goods, the respondent remained in possession and as the appellant had
not paid for the goods in full by the required date, the respondent had an
immediate right to possession. Therefore, at the time of the interference, the
appellant did not have the requisite title to sue in conversion.
5.31
Ownership without some form of possession at the time of the
interference is not sufficient: Wertheim v Cheel (1885) 11 VLR 107. For
example, a drawer of a bearer cheque remains the true owner and entitled to
immediate possession if it does not reach the payee’s hands: Hunter BNZ
Finance Ltd v ANZ Banking Group Ltd [1990] VR 41. However, once the
cheque reaches the person authorised to receive it, any action in conversion
will be by the payee.
5.32 In respect of goods and equipment of a company, in Burnett v
Randwick City Council [2006] NSWCA 196, the court held that a person in
charge of a company’s equipment and business does not have sufficient
possession of the goods to give them title to sue. It was stated (at [96]):
It is a truism to say that a company can only act through its officers and agents. An officer may
well carry on the company’s business and his or her decisions may control the manner in which
the company’s property is held, used, acquired or disposed of. However, this does not vest in
that officer … with such control and dominion over the property of the company as to change
the physical custody of that property from the possession of the company to the possession of
the officer in the sense that the officer then has the immediate right of possession of, or the
possessory title to, the company’s property entitling him or her to sue for trespass or conversion
in his or her own name.
Bailees and bailors
5.33 As an immediate right to possession is sufficient for title to sue in
conversion, a bailor of goods may have title to sue. As this is not an exception
to title to sue as it is for trespass to chattels (see 5.9), the interference with the
bailed goods need not be by a third party to be actionable as a conversion. If a
bailee converts the bailor’s property, that act may give the bailor an
immediate right to possession if the act is wholly repugnant to the bailment
and will entitle the bailor to sue the bailee in conversion: Penfolds Wines Pty
Ltd v Elliott (1946) 74 CLR 204. See also Nominal Defendant v Andrews
(1969) 121 CLR 562 and Nominal Defendant v Morgan Cars Pty Ltd (1974)
131 CLR 22, which indicate that a term in an agreement, where a breach
would result in the termination of that agreement, might not be conclusive in
establishing the requisite title to sue: compare Union Transport Finance Ltd v
British Car Auctions Ltd [1978] 2 All ER 385.
5.34 Special rules apply in actions between bailor and bailee. A bailee is
estopped from disputing the bailor’s title except if:
the bailee defends the action on behalf of, and by the authority of, the
true owner; or
the acts of conversion complained of were committed under the
authority of the true owner; or
satisfaction to the true owner has been made by return of the property.
In Perpetual Trustees & National Executors of Tasmania Ltd v Perkins
(1989) Aust Torts Reports ¶80-295, sisters inherited portraits of their greatgrandmother and great-grandfather
[page 88]
from their parents. They passed the portraits to a brother, Bill Perkins, on
‘long loan’, that is, under a bailment revocable at their will as bailors. Bill
Perkins then passed them on to another brother. When that brother died, his
widow and son disposed of the portraits by sale to the Art Gallery of South
Australia. One of the sisters, who was an executor of the other sister’s estate,
demanded the return of the portraits from the defendant gallery and, when
the gallery refused, they sued in conversion. The Full Court of the Supreme
Court of Tasmania held that the gallery was guilty of conversion, as the
bailors’ title to the portraits was better than the defendant’s title. Green CJ
(with whom Wright J agreed on this point) said (at 69,203):
In my view, the only conclusion reasonably open on the evidence is that Bill Perkins received
possession of the portraits from the sisters upon the understanding that he would keep them
and return them according to their directions. In my opinion such a transaction has all the
essential characteristics of a gratuitous bailment … As this was a gratuitous bailment revocable
at will the transfer of possession by the sisters to Bill Perkins did not have the effect of
extinguishing their possessory title … The [defendants] were not able to impeach that title by
showing that they had a superior right to possession and they may not rely upon any rights
arising from their possession of the portraits which they derived from Bill Perkins …
5.35 It is possible in some cases for both the bailor at will, having an
immediate right to possession, and the bailee, being in possession, to have
title to sue where a third party interferes with the bailee’s possession of the
goods. In such cases, the party with the better title would be the appropriate
plaintiff.
Co-owners
5.36 If the converted goods are co-owned as either joint tenants or tenants
in common, usually all co-owners must be joined as plaintiffs.
An interference with the jointly owned goods by one co-owner will not
give rise to an action in conversion by the others unless the goods are
destroyed or there is a complete extinction of possessory rights. In Parr v Ash
(1876) SCR (NSW) 352 at 355, it was stated:
… where one joint or part owner of chattel property seized the joint property, and deprived the
other owner or owners of the use and possession of it, no action will lie except where the
property was sold in market overt or where it was destroyed so that the part owner could not
recover his share.
Occupiers of land
5.37 An occupier of land is regarded as the possessor of chattels attached
to or under the land, even if they are not aware of the existence of the chattels:
Elwes v Brigg Gas Co (1886) 33 Ch D 562; see Chairman, National Crime
Authority v Flack (1998) 156 ALR 501, where it was held that the possession
in law of residential premises was sufficient to establish the requisite intention
to possess all chattels on the premises. In that case, the respondent asked that
a briefcase containing $433,000 taken by the appellant during a search of her
premises, even though she was not its owner and had not seen it before it was
discovered during the search.
[page 89]
Finders
5.38 As noted in 5.14, a finder of goods obtains possessory rights against
all except the true owner and, in certain circumstances, their employer or the
occupier of the land. If the finder entrusts the goods to another pending an
(unsuccessful) attempt to locate the true owner, they will have sufficient
interest to sue the person entrusted with the goods when such person refuses
to return them to the finder. In Armory v Delamirie (1722) 1 Stra 505; 93 ER
664, the court held that the plaintiff, as finder, had acquired possessory title in
the jewel that had not been impaired by the temporary possession of the
jeweller.
In Parker v British Airways Board [1982] QB 1004, the English Court of
Appeal upheld the verdict of conversion in favour of the plaintiff finder. The
plaintiff, in taking the chattel into his care and control, acquired rights of
possession except against the true owner. These rights of possession could
only be displaced if the defendant, as occupier, could show an obvious
intention to exercise control over the area and the goods before the plaintiff
found the goods.
Repugnant Dealing
5.39
The tort of conversion encompasses a wide range of direct
interferences, but, as Dixon J stated in Penfolds Wines Pty Ltd v Elliott (1946)
74 CLR 204 at 229, ‘the essence of conversion is a dealing with a chattel in a
manner repugnant to the immediate right of possession of the person who
has property or special property in the chattel’. In Bunnings Group Ltd v
CHEP Australia Ltd (2011) 82 NSWLR 420 at [124], Allsop P observed:
The framing of a precise definition of the tort of conversion has been described as “well nigh
impossible”: Lord Nicholls of Birkenhead in Kuwait Airways Corporation v Iraqi Airways Co
(Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883 at 1084 [39]; and see also Hiort v London &
North Western Railway Co (1879) 4 Ex D 188 at 194 per Bramwell LJ. The essential elements, or
basic features, involve an intentional act or dealing with goods inconsistent with or repugnant to
the rights of the owner, including possession and any right to possession. Such an act or dealing
will amount to such an infringement of the possessory or proprietary rights of the owner if it is
an intended act of dominion or assertion of rights over the goods: see generally Penfolds Wines
Pty Ltd v Elliott (1946) 74 CLR 204 at 217–220 (per Latham CJ), 228–230 (per Dixon J, with
whose statements of principle Starke J agreed at 221), 234–235 (per McTiernan J), and 239–244
(per Williams J); and Kuwait Airways at 1084 [39]–[42] (per Lord Nicholls of Birkenhead), 1104
[119] (per Lord Steyn) and 1106 [129] (per Lord Hoffmann).
The defendant need not be in physical possession of the goods, they merely
have to have dealt with the goods: Hiort v Bott (1847) LR 9 Ex 86.
See also Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 at
264.
5.40 In contrast to trespass to chattels, conversion requires an intention on
the part of the defendant to assert rights in respect of the goods, interfering
with the plaintiff’s immediate right of possession: Oakley v Lyster [1931] 1 KB
148 at 150; Lancashire Railway Co v MacNicoll (1919) 88 LJKB 601.
Therefore, a dealing with goods without the intention to exercise dominion
over the goods cannot amount to a repugnant dealing, instead an action in
trespass to chattels may lie. For example, in Fouldes v Willoughby (1841) 8 M
& W 540; 151 ER 1153, the plaintiff took two of his horses onto the
defendant’s ferry and paid for
[page 90]
their carriage. There was an altercation between the plaintiff and defendant in
which the defendant said he would not carry the horses and requested that
the plaintiff remove them. The plaintiff refused. The defendant then took the
horses ashore himself and left them where they subsequently ran loose on the
road. The plaintiff remained on the ferry, took the journey and later
recovered his horses. As there was no intention to exercise dominion over the
chattels (the horses), there was no conversion, merely trespass to chattels.
Similarly, in Schemmell v Pomeroy (1989) 50 SASR 450, the illegal taking of a
motor vehicle was treated as trespass rather than conversion.
In some circumstances, such an intention may be imputed to the
tortfeasor: Moorgate Mercantile Co Ltd v Finch & Read [1962] 1 QB 701.
Wrongful destruction or alteration
5.41 A person commits conversion if, without lawful justification, there is
wilful destruction or alteration of a chattel belonging to another, for example
a miller grinding another’s corn to make flour: Hollins v Fowler (1875) LR 7
HL 757.
Wrongful taking
5.42 It is conversion if a chattel is taken out of the possession of another
with intent to exercise a permanent or temporary dominion over it: Healing
(Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584.
In Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2
AC 883; 3 All ER 209, 10 aircraft belonging to the plaintiff were taken from
Kuwait by invading Iraqi forces. The aircraft were then incorporated into the
defendant’s fleet, four later being destroyed by Allied bombs. The remaining
six aircraft were sent to Iraq until their eventual return to the plaintiff. The
plaintiff sued in conversion to recover for the loss of use of the aircraft and
the US$20 million it had to pay Iran for the planes’ safekeeping. Due to the
application of state immunity for the period in which the planes were actually
taken, the plaintiff had to rely on the defendant’s acts of registering and
insuring the aircraft, repainting them and occasionally flying them as the acts
of conversion. The defendant argued that as it had not disposed of or
destroyed the planes, or interfered with the plaintiff’s possessory rights in any
other way, there was no conversion. The House of Lords held that the acts of
the defendant were more than mere use or minor interferences and
amounted to an assertion of rights inconsistent with the plaintiff’s rights as
owner. Despite the defendant’s assertions, there was a clear indication that it
would resist any claim by the plaintiff to exercise its rights.
5.43 Where possession of goods is thrust upon a person without consent
(an involuntary bailee), the person has merely received them and not taken
them. In such circumstances, there is no conversion and no need to take any
active steps to return them. However, it may be a conversion if the innocent
receiver then converts them to his or her own use. This is one of the most
difficult areas for the courts since they must exercise their discretion in
determining whether, as a matter of degree, there has or has not been an
intention to exercise the necessary dominion.
[page 91]
Wrongful delivery
5.44 If a person who has obtained possession of a chattel lawfully transfers
the custody of the chattel to a person who has no authority to receive them, a
conversion may be committed. For example, in Glass v Hollander (1935) 35
SR (NSW) 304, Mrs Gibson had hired goods under a hire–purchase
agreement from the plaintiff. The agreement required her to keep the goods
at the nominated address and to not sell or part with possession without the
plaintiff’s written consent. There was also the usual hire–purchase clause
giving the owner the right to repossess the goods upon failure of prompt
payment of instalments or breach of any other term of the agreement. Mrs
Gibson was in arrears of her payments when she sold the goods to the
defendant (in breach of the hire–purchase agreement). The goods were
delivered to the defendant’s employee who stored the goods until they were
sold at auction. The New South Wales Full Court held there was a conversion.
The plaintiff had an immediate right to possession because of the breaches of
the hire–purchase agreement by Mrs Gibson. The taking of possession and
delivery for auction of the goods amounted to acts of conversion. See also Hill
v Reglon Pty Ltd [2007] NSWCA 295.
5.45
Even if the delivery is innocent, there will be a conversion, for
example if an auctioneer, on the instructions of the apparent owner and
possessor of the goods, sells and delivers the chattel to a purchaser:
Consolidated Co v Curtis & Son [1892] 1 QB 495. However, a mere agreement
to sell, without delivery, is not conversion: Australian Provincial Assurance
Co Ltd v Coroneo (1938) 38 SR (NSW) 700.
5.46 If a bailee re-delivers goods to the person from whom they were
obtained, there is no conversion if the bailee was ignorant of the plaintiff’s
claim: Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2
QB 205. This is not the case if there is knowledge of the plaintiff’s claim:
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204. There will be no
conversion if the bailee re-delivers the goods to a person reasonably believed
to be the agent of the sender (Elvin & Powell Ltd v Plummer Roddis Ltd
(1933) 50 TLR 158), unless the bailee does more, for example endorses the
delivery: Hiort v Bott (1874) LR 9 Ex 86.
5.47 If the defendant has possession of the goods as an involuntary bailee
(for example, as the finder of goods), there is no conversion if they misdeliver
the goods to a person whom they reasonably believe entitled to possession:
James v Oxley (1939) 61 CLR 433 at 447.
Wrongful detention
5.48 Wrongful detention of goods is a form of repugnant dealing which
overlaps with the tort of detinue: Baldwin v Cole (1704) 6 Mod Rep 212; 87
ER 964.
Mere possession or detention of goods without permission is not a
conversion: Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust
Torts Reports ¶81-244 at 62,520. To amount to a repugnant dealing, the
defendant must be shown to have intended to retain the chattel in defiance of
the plaintiff. This intention is usually shown by demand and refusal: Oakley v
Lyster [1931] 1 KB 148. Possessing goods without consent is not equivalent to
a demand to return: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82
NSWLR 420 at [135].
[page 92]
In Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd, the plaintiff leased
three machines to the defendant. A provisional liquidator was appointed to
the defendant company, an event which constituted default by the defendant
of the lease, entitling the plaintiff to repossess its machines or to demand their
return within 10 days. The plaintiff did not do either of these things until after
the liquidator had refused to pay arrears of rent and had refused to permit the
plaintiff to collect the machines, claiming they were frozen by the liquidation.
The plaintiff then terminated the lease formally and demanded the return of
the machines. The plaintiff and the liquidator negotiated the amounts owing
under the lease, but negotiations were not concluded. The liquidator did not
return the machines. The plaintiff sued the defendant and the liquidator,
alleging conversion.
The Supreme Court of New South Wales held that there had been
conversion from the date of the formal termination of the lease. Young J said
(at 62,520–1):
The cases show that the mere detention by A of B’s goods will not necessarily amount to
conversion nor will the mere handling of them. But once the degree of use amounts to
employing the goods as if they were one’s own then a conversion is established. It seems to me
then that immediately after [the date of formal termination] the position was that the
defendant’s lease of the goods had been determined and the defendant’s right to possession of
the goods had ceased. The plaintiff had the right to possession of the goods. The plaintiff had
clearly manifested to the defendant that it wished to have the goods. The defendant did nothing
to change its attitude that the goods were frozen by virtue of the provisional liquidation and that
the plaintiff should do nothing to attempt to regain them … It would seem to me that at the very
least on [the date negotiations broke down] there was a conversion of the plaintiff’s goods
because the defendant was treating the goods as if they were its own. There had been a demand
for the goods … there was clear indication by the plaintiff that it wanted its goods returned and
a demand followed by a refusal to restore goods usually amounts to a conversion itself.
5.49 A provisional refusal is justifiable where there is doubt concerning the
plaintiff’s title to possession, but it is not justifiable if there is no doubt, as
illustrated by Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd where
Young J held (at 62,520):
If one reads the standard torts textbooks too quickly, one might get the impression that it is
always a defence for the holder to retain the goods for a reasonable time in order to investigate
the validity of the plaintiff’s claim. This is too wide a proposition … The “reasonable time to
investigate” rule usually has no application at all where there is no doubt of the plaintiff’s title to
the goods. If a person knowing that goods are the goods of someone else retains them, it is
completely irrelevant that a person who did not have that knowledge might reasonably have
taken a little time to establish whose goods they were.
Since the defendant knew that the goods belonged to the plaintiff, the
defence of provisional refusal was not available.
In Sadcas Pty Ltd v Business and Professional Finance Pty Ltd [2011]
NSWCA 267, the court held there was no conversion when the appellant
retained the respondent’s goods when negotiations to purchase the goods
were commenced. By negotiating to purchase, the appellant was recognising
the respondent’s rights to the goods, not denying them.
See also Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420
at [120], where the court held that a ‘demand for return, or making available
for collection, goods of a
[page 93]
description not capable of being identified is not one with which the failure to
comply, of itself, evidences conversion’. In that case the appellant was lawfully
in possession of some of the respondent’s goods which were identical to the
goods it was not lawfully in possession of.
Wrongful use
5.50 Any unjustified use of goods will amount to a conversion, provided
there is an intention to exercise the appropriate dominion over them:
Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 218, 234, 242.
Wrongful use without destruction or alteration requires an assessment by
the court of the extent of repugnancy demonstrated by the use. The ‘joyride’
cases involving theft of a motor vehicle are illustrative of such use, although
not necessarily consistent in approach and outcome. In Schemmell v Pomeroy
(1989) 50 SASR 450, the court held that the taking of a motor vehicle for a
‘joyride’, although clearly amounting to a trespass to goods, was not
conversion as there was no intention to harm, abandon or not return it.
However, the New Zealand court in Aitken Agencies Ltd v Richardson [1967]
NZLR 65 suggested that the mere taking of a vehicle was itself a positive and
wrongful act which amounted to a dealing with the goods in a manner
inconsistent with the owner’s rights and an intentional assertion of a right
inconsistent with the rights of the owner.
5.51 In Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, four members
of the High Court either found or assumed that conversion of the two
branded bottles had taken place. Latham CJ held that the same acts that
determined the bailment and gave Penfolds the immediate right to possession
and, therefore, title to sue, also amounted to repugnant dealings amounting
to conversion. His Honour stated (at 219):
In the present case there was not, in my opinion, a mere removal of the bottles received from the
defendant’s brother independently of any claim over them in favour of the defendant or anyone
else. There was a handling of the bottles, an actual use of them, for the purposes of the
defendant’s trade — for containing and disposing of the defendant’s wine and for the use of the
defendant’s customer, his brother. Such dealing with the bottles, under a claim of right so to deal
with them (a claim in which the defendant still persists) was inconsistent with the dominion of
the owner of the bottles and was a conversion.
Starke J (at 221) and McTiernan J (at 232) were content to assume that the
evidence supported a conversion of two of the bottles. Williams J found
positively that there had been a conversion. He said (at 243–4):
The use which the defendant made of the bottles with knowledge of the plaintiff’s title was, in
the words of Blackburn J, … “an interference with the property which would not, as against the
true owner, be justified, or at least excused, in one who came lawfully into possession of the
goods” [Hollins v Fowler (1875) LR 7 QB 616 at 766]. He was, in the words of Brett J (at 784),
“using the goods with the intent to exercise an act of ownership on his own behalf or of
someone (that is, his brother) other than the plaintiff”.
Dixon J, alone, found there was no conversion (at 229):
There is nothing in the course followed by the respondent in supplying wine to his customers
who brought bottles to receive it involving any deprival or impairment of property in the
bottles,
[page 94]
that is of the immediate right to possession. The redelivery of the bottles to the persons who left
them could not amount to a conversion: see per Bingham J in Union Credit Bank Ltd v Mersey
Docks and Harbour Board [1899] 2 QB 205 at 215–16. The redelivery could not amount to a
conversion because, though involving a transfer of possession, its purpose was not to confer any
right over the property in the bottles, but merely to return or restore them to the person who
had left them there to be filled. Indeed if they had been withheld from that person, he could have
complained, at least theoretically, of an actionable wrong, that is unless it were done as a result
of the intervention of the true owners and upon their demand.
To fill the bottles with wine at the request of the person who brought them could not in itself be
a conversion. It was not a use of the bottles involving any exercise of dominion over them,
however transitory. There was, of course, no asportation and the older cases to the effect that an
asportation of chattels for the use of the person taking them, or of a third person, may amount
to a conversion can have no application. In any event, an intention cannot be imputed to the
respondent of taking to himself the property in the bottles or of depriving the appellants thereof
or of asserting any title therein or of denying that of the appellants. It was not an act derogating
from the proprietary right of the appellant. There was no user on the footing that the respondent
was owner or that the appellants had no title, in short no act of ownership.
The essential elements of liability in trover are lacking.
5.52 In Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420,
the respondent sued in conversion alleging that the appellant had detained
and used its pallets, characterising the acts as acts of dominion over the
pallets, repugnant to the respondent’s rights as owner. The evidence was
goods would be delivered to the appellant in the respondent’s pallets. The
respondent and supplier of the goods were in a contractual relationship
where the pallets were hired out and until the pallets were returned to the
respondent, the supplier remained liable for the hire charge. Therefore, the
pallets were in the appellant’s possession as part of usual commercial practice
— stock would be delivered to the appellant in the pallets and the pallets
could be used to store the goods until required or used to display the goods
for sale. The appellant also used the respondent’s pallets to deliver imported
goods from the distribution centres to the stores. The court held that using
the respondent’s pallets to display goods for sale, to store goods not
immediately needed and/or transporting surplus stock still on the pallets were
not acts repugnant to the respondent’s rights of ownership or possession.
However, palletising and delivering imported goods to stores was an act
which could be characterised as ‘an act of dominion or right to use the goods
as one’s own’: at [161]. Once the pallets were unloaded, any use thereafter
ceased to be mere possession; the use was for the appellant’s own use.
See also Gwinnett v Day [2012] SASC 43, where the taking of cattle by one
co-owner was held not to be a conversion as the partnership was in the
process of being dissolved and there was no evidence that those particular
cattle had to be returned to the other co-owner.
Wrongful disposition (sale and delivery)
5.53 If, without lawful justification, a person deprives another of goods by
giving a third party lawful title to them, there will be a conversion: Douglas
Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738. The plaintiff
would be entitled to sue both the vendor and purchaser of the goods:
Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890.
[page 95]
This is because conversion is proven upon there being an intention to affect
the title of the goods through wrongful interference. Therefore, a purchaser
will be liable in conversion even if acting in good faith in ignorance of the
rights of the true owner: Hollins v Fowler (1875) LR 7 HL 757; Oakley v Lyster
[1931] 1 KB 148; R H Willis & Son v British Car Auctions Ltd [1978] 2 All ER
392; Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238 at
[40]. The vendor will have converted the goods even if they never had
possession but merely dealt with the title of the goods: Motor Dealers Credit
Corporation Ltd v Overland (Sydney) Ltd (1931) 31 SR (NSW) 516.
Some legislation protects a purchaser of good faith in certain
circumstances: see, for example, Sale of Goods Act 1954 (ACT) s 29(2); Sale
of Goods Act 1923 (NSW) s 28(2); Sale of Goods Act 1954 (NT) s 28(2); Sale
of Goods Act 1896 (Qld) s 27(2); Sale of Goods Act 1895 (SA) s 25(2); Sale of
Goods Act 1896 (Tas) s 30(2); Goods Act 1958 (Vic) s 31; Sale of Goods Act
1895 (WA) s 25(2).
Representations of possession
5.54 If a person falsely represents that goods are in their possession and
the plaintiff has acted on that representation to his or her loss, the representor
may be guilty of conversion and will be estopped in an action for conversion
from alleging that dominion had, in fact, never been exercised over the goods:
Seton Laing & Co v Lafone (1887) 19 QBD 68. See also the form of estoppel in
Eastern Distributors Ltd v Goldring [1957] 2 QB 600 and Moorgate Mercantile
Co Ltd v Twitchings [1977] AC 890.
Fault
5.55 Trespass actions require that the defendant be at fault, and in proving
conversion there must be evidence of an intention on the part of the
defendant to exercise dominion over the plaintiff’s goods. Therefore, when
proving fault of the defendant in conversion, negligence will not suffice —
there must be evidence of an intentional act committed by the defendant.
Intention is assessed in relation to the intent to commit the act and requires
no wrongful motive. As such, even an innocent dealing with goods may
amount to conversion: Consolidated Co v Curtis & Son [1892] 1 QB 495. In
Hollins v Fowler (1875) LR 7 HL 757 at 790, it was stated:
The foundation for the action of conversion rests neither in the knowledge nor the intent of the
defendant. It rests upon the unwarranted interference by the defendant with the dominion over
the property of the plaintiff from which injury to the latter results. Therefore neither good nor
bad faith, neither care nor negligence, neither knowledge nor ignorance, are the gist of the
action.
4
Detinue
5.56 The trespass action of detinue involves the wrongful detention of
goods and is usually characterised by a demand for the return of the goods
and a refusal to comply. In the United Kingdom, detinue has been abolished
under the Torts (Interference with Goods) Act 1977 (UK) and such
interferences are absorbed into the action of conversion. However, in
Australia, detinue continues to be a separate tort from conversion: Banks v
Ferrari [2000] NSWSC 874 at [62].
[page 96]
5.57 The action of detinue has the following advantages over the other
trespass to personal property actions:
Detinue is the only action in which the court may order that the
defendant return the goods to the plaintiff in appropriate
circumstances. In trespass to chattels and conversion, a plaintiff can
only recover damages. In fact, for conversion, the effect of a successful
judgment in favour of the plaintiff is to transfer title to the converted
goods to the defendant.
In trespass and conversion, damages are usually assessed at the date of
interference, whereas in detinue, damages for detinue are generally
based upon the value of the goods at the date of judgment. If the value
has increased after the interference, as is usually the case through
inflation, detinue would be the preferable form of action.
Detinue may lie in some circumstances where conversion does not,
due to a lack of intention to exercise dominion over the goods, for
example, where a bailee is unable to restore a chattel bailed owing to
negligent loss of it: Reeve v Palmer (1858) 28 LJCP 168; 141 ER 33;
Thomas v High (1960) SR (NSW) 401 at 407.
5.58
To establish an action in detinue:
the plaintiff must have title to sue;
there must be a detention of the goods; and
the defendant must be at fault.
Detinue is a continuing cause of action, commencing at the date of the
wrongful refusal to return the goods and continuing until either the goods are
delivered to the plaintiff or until judgment.
Title to Sue
5.59 To have title to sue in detinue, a plaintiff must establish that they had
an immediate right to possession or actual or constructive possession of the
chattels at the time of the defendant’s refusal to return the chattels: Russell v
Wilson (1923) 33 CLR 538; City Motors (1933) Pty Ltd v Southern Aerial
Super Service Pty Ltd (1961) 106 CLR 477.
In Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222,
the plaintiff brought an action in detinue when the defendant refused to
return her car to her. The car had been towed by a towing company to the
defendant’s premises at the suggestion of the towing company after an
accident. When the plaintiff’s insurer arranged for the car to be towed to the
chosen repairer, the defendant refused to release the car until outstanding
payments (towing charges and storage fees) were resolved. The defendant
argued that the plaintiff had no immediate right to possession of the car as
there was a contract of bailment. The court held that there ‘was no objective
basis for concluding that the object of delivering the cars to the defendant’s
premises was to secure its services as repairer, or indeed to enter into a
contract of bailment for reward’: at [52]. As the plaintiff had dealt with the
towing company and not the defendant, there was no agreement that would
allow the defendant to retain the car. Therefore, when the formal demand was
made for the return of the car, the plaintiff did have an immediate right to
possession.
[page 97]
As in trespass to chattels and conversion, a finder of goods may have title
to sue in detinue: see 5.14 and 5.38.
Detention of Goods
5.60 The action in detinue is based upon wrongful detention (Banks v
Ferrari [2000] NSWSC 874 at [62]); therefore, the defendant must have had
the goods in their possession at some time, though they need not be in
possession at the actual time the demand for their return is made: John F
Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157.
5.61 Merely being in possession of another’s chattels without permission is
not a tort if there is no intention of keeping the goods in defiance of the
owner’s rights: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR
420. However, if the goods are held under an involuntary bailment, the bailee
is under a duty to safeguard the goods. In Papathanasopoulos v Vacopoulos
[2007] NSWSC 502, the respondent sued in detinue to recover an
engagement ring or its value ($15,250) from the appellant, his former fiancée.
It was held that, after the engagement ended, the appellant became a bailee
and she had no right to dispose of the ring (her father had thrown the ring
away on the daughter’s instructions to remove all mementos of her
relationship with the respondent). Judgment was given for the value of the
engagement ring. In Rolfe v Investec Bank (Aust) Ltd [2014] VSCA 38, the
appellant argued that the respondent was the bailee of the contents of locked
containers (three rare Porsches) that were on the land that the respondent
bought from the appellant. It was later discovered that the containers had
been removed at some stage after the respondent had taken possession of the
land. The court held that:
… even in cases where permission to leave chattels on land for the time being amounts to
bailment, the better view is that a gratuitous bailee of goods sealed in a container is not liable for
the goods as opposed to the container unless the bailee is apprised of the nature and value of the
goods (Moukataff v British Overseas Airways Corporation [1967] 1 Lloyds Rep 396 at 415–416)
or unless the goods are of a character, value and quantity likely to be found in a normal situation
of the kind in question: at [62].
Demand and refusal
5.62 The detention of goods is evidenced by a demand and refusal. The
plaintiff must show that a demand for the return of the chattel has been made
and that the demand has been refused by the party in possession: John F
Goulding Pty Ltd v Victorian Railway Commissioners (1932) 48 CLR 157.
5.63 Demand The demand must be specific; however, the demand will be
construed with reference to the understanding of a reasonable person in the
position of the defendant: Grant v YYH Holdings Pty Ltd [2012] NSWCA 360
at [90]. A demand which is insufficient for detinue may be sufficient when
refusal amounts to evidence of conversion.
If it is made in general terms (for example, failing to indicate a time and
place for delivery), it would be difficult to prove refusal if the defendant did
nothing in response.
[page 98]
In Lloyd v Osborne (1899) 20 LR (NSW) 190, the plaintiff owned some
sheep which the defendant came into possession of. The plaintiff consulted
her solicitors who wrote to the defendant in the following terms:
Dear Sir — I am instructed by Mrs Catherine Lloyd, of Jugiong, to demand that you will at once
deliver to her or her agent all sheep branded F or FG (tar brand) which you unlawfully withhold
from her …
The plaintiff sued when there was no response from the defendant. The
plaintiff argued there had been sufficient demand and taking no notice of it
was equivalent to refusal. The Full Court held the demand was not sufficient.
It did not say where they were to be delivered or who the agent was. It would
have been sufficient if the letter had said, ‘You must deliver the sheep to the
bearer of this letter’ and the bearer had personally demanded the sheep.
In Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts
Reports ¶81-244, the plaintiff’s formal demand for return of machines did not
stipulate where or how the plaintiff required its possession of the machines to
be returned. After negotiations between the defendant liquidator and the
plaintiff broke down, the defendant would have allowed the machines to be
collected by the plaintiff, who knew where they were. The court held that the
plaintiff’s claim in detinue failed because the plaintiff’s demand did not state
where the machines were to be delivered and to whom, and because the
plaintiff knew where the machines were and would have been able to
repossess them without interference. However, the claim in conversion was
successful.
5.64
A demand for return may be conditional, but upon becoming
unconditional it may satisfy the requirements of detinue. In Bunnings Group
Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420, the communication
between the appellant and respondent made it clear that if the appellant did
not enter into a hire agreement in respect of the respondent’s goods by a
specified date, the goods were to be returned. The Court of Appeal held that it
was not until negotiation between the parties ended that there was an
operative demand for the return of the goods: at [97].
5.65 In Crowther v Australian Guarantee Corporation Ltd (1985) Aust
Torts Reports ¶80-709, it was suggested that if the defendant has clearly
demonstrated an intention not to return the goods, then a demand may not
be required. It was stated (at 69,102):
It is not an immutable rule that there must be a demand for and a refusal of the return of the
goods, before an action in detinue or conversion will lie. A man may demonstrate that he
intends not to deliver up the goods come what may. If that intent is proved, absence of demand
will not defeat the plaintiff’s claim.
5.66 Refusal The refusal to return the goods must be unqualified and
unreasonable. If the defendant merely requests time to consider the claim
made in the demand, reasonable time to confirm the authenticity of the
claimant’s rights is recognised since handing them over to a wrongful
claimant may render the person liable in conversion to the true owner.
5.67 A defendant may not be able to rely on inaction in an attempt to
argue that there was no refusal. In Lloyd v Osborne (1899) 20 LR (NSW) 190,
it was observed that
[page 99]
in some circumstances taking no notice of a sufficient demand may be
equivalent to a refusal.
5.68 If the defendant no longer has possession of the goods and, therefore,
cannot comply with the demand for the return of the goods, an action in
detinue may still lie. For example, in John F Goulding Pty Ltd v Victorian
Railways Commissioners (1932) 48 CLR 157, the loss of the goods by the
defendant was unintentional but the refusal to deliver them was intentional,
in the sense that it was a deliberate and conscious refusal. The defendant had
no choice but to refuse as the goods had disappeared.
Fault
5.69
To be liable the detention must arise through the fault of the
defendant. The defendant will escape liability if it can be shown that either the
interference was unintentional or there was no lack of care: Houghland v R R
Low (Luxury Coaches) Ltd [1962] 2 All ER 159. As to how a detention may
arise through negligence, in John F Goulding Pty Ltd v Victorian Railways
Commissioners (1932) 48 CLR 157, the High Court held that by delivering the
plaintiff’s goods to a third party not entitled to them, the defendant had been
negligent and was liable in detinue.
5
Innominate Tort by Reversionary
Owners
5.70 An owner of chattels who does not have title to sue in trespass,
conversion or detinue because neither possession nor an immediate right to
possession is held, may sue in an innominate action on the case (see 2.25) for
what amounts to a conversion or trespass, provided the reversionary interest
is affected, for example, by some permanent damage to the goods: Mears v
London & South Western Railway Co (1862) 11 CBNS 850; 142 ER 1029;
referred to in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 230–1 per
Dixon J; Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173. It is arguable that
the reversioner must wait until the interest is no longer reversionary. The
damages are limited to the value of the interest: Penfolds Wines Pty Ltd v
Elliott (1946) 74 CLR 204.
6
Remedies
5.71 The remedies available for the trespass to personal property actions
have different aspects. Certain remedies are available to all three, but may
involve different principles, for example the assessment of damages.
Therefore, when an interference with goods gives rise to more than one
possible trespass action, the available remedies may be relevant in the
decision as to the course of action taken.
Self-help
5.72 Although an owner is entitled to exercise self-help to retake a chattel
from a person unlawfully in possession, it is not encouraged as it may render
the person seeking to recapture the chattel liable in trespass to person or land,
or to criminal prosecution in
[page 100]
attempting to recapture it if unreasonable force is used. The following
principles apply generally to all three of the actions:
A plaintiff can retake a chattel from a trespasser using reasonable force
short of bodily harm. Older authority suggests that force is not justified
unless reasonable attempts have been made to regain peaceably: Blades
v Higgs (1861) 10 CBNS 713 at 720; 142 ER 634.
The right to retake possession may extend to entry onto land of the
actual wrongdoer or another who has helped or is aware of the
wrongdoing: Huet v Lawrence [1948] St R Qd 168.
In Queensland, ss 274–276 of the Criminal Code (Qld) provide that
reasonable force may be used to retake goods, provided no bodily harm
occurs. As the Code defences apply in Queensland to civil actions of assault
and battery, these provisions would provide a defence to such civil actions.
Damages
5.73
In trespass actions involving personal property, a plaintiff need not
prove damage in order to succeed. Therefore, if no loss is suffered by the
plaintiff, nominal damages may be recovered: Kirk v Gregory (1876) 1 Ex D
55; Slaveski v Victoria [2010] VSC 441.
If loss has been suffered, the award of damages will depend upon which
trespass action is pursued, the damage to the goods and the consequential
loss, and the plaintiff’s interest in the goods. As noted by the Zeeman J of the
Tasmanian Supreme Court, ‘a distinction must be drawn between the
categories of damages which may be recovered in respect of a particular cause
of action and the principles according to which damages of a particular
category are to be assessed’: Pargiter v Alexander (1995) 5 Tas R 158 at 160.
5.74 The plaintiff can only recover damages to the extent of their own
interest in the goods. If the defendant has an interest in the goods, the
plaintiff may only recover an amount proportionate to his or her own interest
in the goods: Brierley v Kendall (1852) 17 QB 937 (trespass to chattels);
Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210 (conversion). As
possession of the goods provides title to sue, a bailee may recover damages as
if they were the true owner but is then accountable to the owner for what is
received in excess of their own interest.
5.75 If the goods are damaged or destroyed, a plaintiff is entitled to
compensatory damages: Australia and New Zealand Banking Group Ltd v
Hunter BNZ Finance Ltd [1991] 2 VR 407 at 409. In Semenov v Pirvu [2011]
VSC 605 at [19], Dixon J said:
The general rule, where a plaintiff has been permanently deprived of goods, is that the measure
of damages, whether in conversion, detinue or trespass, is the value of the property converted,
together with any consequential loss that may be proved by the plaintiff. [footnote omitted]
5.76
It is possible to claim exemplary or aggravated damages in the
appropriate circumstances. In Pargiter v Alexander (1995) 5 Tas R 158,
exemplary damages were awarded to ‘mark the Court’s strong disapprobation
of the defendant’s outrageous conduct’: at 168. The defendant’s conduct was
considered ‘outrageous’ as a previous judgment had
[page 101]
vindicated the plaintiff’s rights to the goods, a yacht, and then the defendant
took the yacht a second time and took steps to attempt to deprive the plaintiff
of the yacht permanently. See also Healing (Sales) Pty Ltd v Inglis Electrix Pty
Ltd (1968) 121 CLR 584; Hunter BNZ Finance Ltd v ANZ Banking Group Ltd
[1990] VR 41.
In Moore v Lambeth County Court Registrar (No 2) [1970] 1 QB 560, the
court awarded aggravated damages to the plaintiff, who had been wrongfully
dispossessed of his goods, to compensate him for the resultant injury to his
feelings. See also Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust
Torts Reports ¶81-397, where aggravated damages were considered
appropriate as the respondent had felt a sense of invasion when his car, which
had his mobile phone and work diary in it, was clamped and towed away.
Trespass to chattels
5.77 An examination of the cases leads to the conclusion that, in practice,
the action of trespass to chattels is usually brought only when an actual loss is
suffered. However, in Slaveski v Victoria [2010] VSC 441, the plaintiff sought
damages for trespass to chattels — police officers had handled documents and
transcribed from them. The documents were not removed from the plaintiff’s
premises nor damaged in any way. It was held that a trespass had been
committed; however, there was no damage and nominal damages of $1100
were awarded.
5.78 A plaintiff who is permanently deprived of their goods is entitled to
recover their full value as at the date of the trespass: Australia and New
Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 at
409.
5.79 A plaintiff who is in possession of their goods, but they are damaged
due to the trespass, may claim compensatory damages. The prima facie rule is
that damages are measured by the depreciation in value of the chattel, which
is usually assessed based upon the reasonable cost of repairs if it is reasonable
in the circumstances to effect repair: Pargiter v Alexander (1995) 5 Tas R 158
at 161 and 164; Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1.
However, as the aim of compensatory damages is to place the plaintiff in the
position as if no tort was committed (Butler v Egg and Egg Pulp Marketing
Board (1966) 114 CLR 185), the plaintiff may provide evidence that they have
sustained a loss going beyond that measure in the form of diminution of
market value of the chattel: Davidson v J S Gilbert Fabrications Pty Ltd [1986]
1 Qd R 1.
5.80 A plaintiff may sell the goods without repairing and then claim as
damages the difference between the pre- and post-damage values of the
goods. If this option is taken, the pre-damage value must be established and
that the best price was obtained for the damaged chattel: see Davidson v J S
Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1.
5.81 Foreseeable consequential loss is recoverable; for example, if the
damaged chattel was a profit-earning chattel, the plaintiff is entitled to the
lost profits flowing from the trespass as well as during any period of repair.
Likewise, if the plaintiff hires a substitute, the cost of that hire is recoverable:
Bodley v Reynolds (1846) 8 QB 779; 115 ER 1066.
5.82 A plaintiff may recover for the non-economic loss, such as the loss of
the use and enjoyment of the chattel: Private Parking Services (Vic) Pty Ltd v
Huggard (1996) Aust
[page 102]
Torts Reports ¶81-397 (plaintiff had fondness for his car which was an
uncommon model and he used in rallies and competitions). However, the
non-economic loss must relate to the trespass. In Pargiter v Alexander (1995)
5 Tas R 158, the claim for damages for the loss of use and enjoyment of the
yacht, from the time the yacht was wrongfully taken until it was repaired, was
not allowed. It was held that such damages were a result of the detention of
the yacht and, therefore, not recoverable in trespass but rather in detinue.
Conversion
5.83 A plaintiff who successfully sues in conversion is awarded the market
value of the goods as compensatory damages. This effectively enforces a
purchase of the converted goods by the defendant who then receives title to
the goods. However, if the plaintiff has regained possession of the goods,
‘credit must be given for their then value, so the damages are the diminution
in value between the conversion and the return’: Sadcas Pty Ltd v Business
and Professional Finance Pty Ltd [2011] NSWCA 267 at [75] citing Solloway v
McLaughlin (1938) AC 247; BBMB Finance (Hong Kong) Ltd v Eda Holdings
Ltd (1990) 1 WLR 409; Trailways Transport Ltd v Thomas (1996) 2 NZLR
443. If the goods are returned undamaged, the plaintiff will be able to recover
nominal damages.
5.84 In detinue, it is clear that a defendant has the option of returning the
goods and reducing the damages awarded, primarily because it is the return
that the plaintiff has asked for. In conversion, the position with respect to the
return of the goods is not so clear. To permit unilateral return would give a
right to the wrongdoer to force the goods back on the plaintiff. If the plaintiff
rejects the return of the goods and continues with a claim for damages
assessed on the basis of a forced sale to the wrongdoer, courts may be
reluctant to accord the wrongdoer a right of return: Craig v Marsh (1935) 35
SR (NSW) 323 at 329.
5.85
The value of the converted goods is generally assessed at the date of
the conversion: Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986]
AC 337; 1 All ER 480 (Jag Shakti); BBMB Finance (Hong Kong) Ltd v Eda
Holdings Ltd [1991] 2 All ER 129. The value of the goods can be either the
purchase price of such goods in the market or the selling price.
The onus of proving the market value of the converted goods is upon the
plaintiff. In Jag Shakti, shipowners wrongfully converted the plaintiffs’ goods
by delivering to buyers. Before the Privy Council, the shipowners conceded
that the plaintiffs were entitled to damages for conversion but the quantum
remained in dispute. The proper damages were the full market value at the
time and place of conversion, but the plaintiffs failed to adduce reliable
evidence of market value. Therefore, despite the acknowledgment that, at the
date of conversion, the cargo price would have been higher than the original
price paid, the court awarded the original contract price.
5.86 However, the date of the conversion may not always be an indication
of the plaintiff’s actual loss and that is the underlying basis for compensation.
In Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 192,
Menzies J stated:
There is no hard and fast rule that the value of the goods at the time of a conversion is always
the measure of the damages to be assessed for the conversion. Often the application of such a
rule would produce an obviously unjust result — for example, if goods converted by a defendant
had
[page 103]
since been recovered by the plaintiff-owner. The true rule is, I think, that stated by Bramwell B
in Chinery v Viall (1860) 5 H & N 288; 157 ER 1192, viz that the plaintiff is entitled to recover no
more than the real damage he has sustained.
See also Sachs v Miklos [1948] 2 KB 23; Munro v Willmott [1949] 1 KB 295.
In IBL Ltd v Coussens [1991] 2 All ER 133, the Court of Appeal confirmed
that damages for conversion should not be arbitrarily assessed as at either the
date of conversion or at the date of judgment. Rather, it is more appropriate
to assess the damages at a date which fairly compensated the owner for the
loss of the goods, taking into account such matters as whether the owner
would have kept the goods, whether they would have been sold or replaced,
whether they had increased in value and whether there had been damage
from loss of use.
5.87 If the value of the goods has increased after the conversion, the
plaintiff should be entitled to recover this increased value if the plaintiff
neither knew nor ought to have known of the conversion before commencing
the action: Sachs v Miklos [1948] 2 KB 23. In Graham v Voigt (1989) Aust
Torts Reports ¶80-296, it was held that the plaintiff was entitled to the
increased value of the goods as the increase was not due to any act of the
defendant but was a natural consequence of the type of goods (collection of
stamps). On the basis of the principle that damages in tort are to compensate
and not to profit, a plaintiff may not recover as damages for conversion any
increase in value brought about by the defendant: Munro v Willmott [1949] 1
KB 295. If the goods have fallen in value since the date of conversion, their
value at the date of conversion may be recovered unless there was undue
delay in bringing the action: Solloway v McLaughlin [1938] AC 247.
5.88 In the case of conversion of a cheque, damages are prima facie the
face value of the cheque at the time of conversion: Associated Midland
Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533. Where
there are successive converters, for example, the original depositor and the
bank which credits the account, payments deliberately made by one to
discharge liability to the true owner may be taken into account in considering
the entitlement in an action for conversion against another tortfeasor. Such
payment may reduce damages or even extinguish the cause: confirmed in
Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41.
5.89 Where a plaintiff in possession has only a limited interest, but the
defendant has no interest, full value may be recovered by the plaintiff: The
Winkfield [1902] P 42. There may then need to be an account to any other
party with an interest for any award above the plaintiff’s limited interest;
however, this need to account does not affect the defendant’s liability:
Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986] AC 337; 1 All ER
480.
A bailor under a hire–purchase agreement is only entitled to recover the
value of the chattel less any instalments paid: Belsize Motor Supply Co v Cox
[1914] 1 KB 244; Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1
WLR 295; Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184.
Conversely, where a bailor owner wrongfully seizes goods from a bailee hirer,
the usual damages will be the value of the goods less the unpaid instalments:
City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106
CLR 477.
[page 104]
An unpaid vendor who wrongfully disposes of the goods is entitled to
deduct from the damages payable to the purchaser the price which the
purchaser is no longer liable to pay, unless the purchaser is not relieved from
payment of the purchase price: Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd
(1968) 121 CLR 584.
5.90 A plaintiff is entitled to recover all foreseeable consequential loss
resulting from the conversion: General and Finance Facilities Ltd v Cook’s
Cars (Romford) Ltd [1963] 1 WLR 644. Therefore, for the conversion of a
profit-earning chattel, such items as loss of profits (Strand Electric and
Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246) and other
reasonable associated costs may be awarded. In Hillesden Securities Ltd v
Ryjack Ltd [1983] 1 WLR 959, there was a three-year lease of a Rolls Royce
which the hirer purported to sell to a director/shareholder of a company.
Both he and the company used the car jointly. The true owner sold his rights
to the plaintiff who sued the defendants. The director admitted conversion
but argued that, at common law, his liability was limited to the value of the
chattel at the date of conversion, plus interest. It was held that consequential
damages were always recoverable for conversion, if not too remote, in cases
where the goods had been detained and used and they were earning profit,
that is, a hire charge by way of damages together with its value or return. Both
defendants were held liable for full hire charge until the return of the Rolls
Royce. See also Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd
(1991) 32 NSWLR 175; Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd
(1993) Aust Torts Rep ¶81-244.
Detinue
5.91 As the tort of detinue is concerned with the wrongful detention of
goods, damages will be awarded for the wrongful detention. The tort arises
upon the wrongful refusal to return the goods (Premier Group Pty Ltd v
Followmont Transport Pty Ltd [2000] 2 Qd R 338 at 344), and therefore
damages for wrongful detention are assessed from the time of refusal until the
date of judgment: General and Finance Facilities Ltd v Cook’s Cars (Romford)
Ltd [1963] 1 WLR 644; Palace Backpackers Australia Pty Ltd v Christensen
Industries Pty Ltd (2002) 23 Qld Lawyer Reps 79; QDC 084 at [20]–[21].
5.92 If the goods are ordinary articles in commerce and have not been
returned to the plaintiff by the time of judgment, compensatory damages are
awarded — assessed as the value of the chattel at the date of judgment
(Brandeis Goldschmidt & Co Ltd v Western Transport Co Ltd [1981] QB 864)
plus damages for its detention.
5.93 It is no more than a prima facie presumption that the damages be
assessed according to the value of the goods as at the date of judgment,
because the overriding principle is to compensate for the loss actually
suffered: Admiralty Commissioners v Susquehanna (Owners) [1926] AC 655.
Where a defendant refuses to produce the goods in order to determine their
value, the courts have long taken the view that they may assess damages on
the basis that the goods are of the best quality: Armory v Delamirie (1722) 1
Stra 505; 93 ER 664.
A plaintiff cannot make a profit through an award of damages: Butler v Egg
and Egg Pulp Marketing Board (1966) 114 CLR 185. Under the doctrine of
accession, if an innocent third party adds value to the goods, without notice
and the accretion can be detached, the removal of the accretion can be
ordered by the court. If not, then compensation to the third
[page 105]
party may be imposed as a term of the order for repossession: see Wade
Sawmill Pty Ltd v Colenden Pty Ltd (t/as Pilks Pine) [2007] QCA 455 at [24];
McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312–13 (where
the defendant built a yacht incorporating a hull owned by the plaintiff).
5.94 Damages that flow as a consequence of the detention of goods are
recoverable if the loss is foreseeable: Macrocom Pty Ltd v City West Centre Pty
Ltd [2003] NSWSC 898 at [45]; National Australia Bank Ltd v Nemur Varity
Pty Ltd (2002) 4 VR 252.
Therefore, the loss of profits suffered by the plaintiff during the detention
of a profit-earning chattel may be claimed: Egan v State Transport Authority
(1982) 31 SASR 481. If the detained goods are ordinarily hired out by the
plaintiff, damages are awarded for the loss of use, the measure usually being
the normal hiring rate: Gaba Formwork Contractors Pty Ltd v Turner
Corporation Ltd (1991) 32 NSWLR 175 at 178; Pargiter v Alexander (1995) 5
Tas R 158 at 161. If the defendant has detained the goods and used them, the
court may award as damages the reasonable hire charge of the goods. In
Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2
QB 246 at 254–5, Denning LJ stated:
If a wrongdoer has made use of goods for his own purposes, then he must pay a reasonable hire
for them, even though the owner has in fact suffered no loss. It may be that the owner would not
have used the goods himself, or that he had a substitute readily available, which he used without
extra cost to himself. Nevertheless the owner is entitled to a reasonable hire. If the wrongdoer
had asked the owner for permission to use the goods, the owner would be entitled to ask for a
reasonable remuneration as the price of his permission. The wrongdoer cannot be better off
because he did not ask permission. He cannot be better off by doing wrong than he would be by
doing right. He must therefore pay a reasonable hire.
In Reynolds v Aluma-Lite Products Pty Ltd (2010) Aust Torts Reports ¶82072, the court refused to award damages as the plaintiffs could not establish
that the goods in question were normally hired out for profit or that the
defendant had used the goods for its own purposes during the detention.
5.95 It is possible to claim damages for the loss of use and enjoyment if
there are no economic interests involved: Private Parking Services (Vic) Pty
Ltd v Huggard (1996) Aust Torts Reports ¶81-397; Pargiter v Alexander
(1995) 5 Tas R 158. In Wong v Maroubra Automotive Refinishers Pty Ltd
[2015] NSWSC 222, the defendants wrongfully detained the plaintiff’s car and
the court awarded damages for the loss of the use of the vehicle in the amount
represented by the market rate of hiring a replacement car.
Injunction
5.96
The injunction is an equitable remedy, and the court must be
persuaded that the grant of an injunction is justified as an award of damages
would be inadequate to remedy the wrong in the circumstances.
Trespass to chattels
5.97 A plaintiff seeking an injunction for the trespass to their goods would
have to establish that an award of damages would be inadequate as the
interference with their possession would continue or reoccur: Penfolds Wines
Pty Ltd v Elliott (1946) 74 CLR 204.
[page 106]
However, the court cannot order that the defendant return the goods to the
plaintiff if the plaintiff has not regained possession.
Conversion
5.98 Although a court cannot order the return of the converted goods, if
the plaintiff can prove that the defendant will continue to exercise dominion
over their goods, an injunction may be ordered. The case of Penfolds Wines
Pty Ltd v Elliott (1946) 74 CLR 204, in relation to trespass to chattels and
conversion, provides a useful illustration. The plaintiff sought an injunction
to restrain the defendant from filling its bottles with other merchants’ wine.
While a majority of four of the members of the High Court held there had
been conversion, only a minority of two was prepared to grant an injunction
because of the absence of any systematic practice of using Penfolds’ bottles
and because damages at common law were available.
Interlocutory injunctions may be granted to restrain the disposition of
goods which have no intrinsic qualities, for example a motor vehicle, if there
is a possibility of invalid title being passed to innocent third parties by further
dispositions: Gedbury Pty Ltd v Michael David Kennedy Autos [1986] 1 Qd R
103.
Detinue
5.99 As with the other actions, a plaintiff may seek an injunction if there is
the likelihood of their goods being wrongfully detained again. However, as
detinue is based upon the defendant being in possession of goods to which
the plaintiff has the right of possession, it is the only action that provides the
remedy of a court ordering the return of the goods to the plaintiff.
5.100 A plaintiff suing in detinue has the option of seeking the return of
the chattel or recovery of its value at the date of judgment and damages for its
detention: General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd
[1963] 1 WLR 644; Haythorpe v Rae [1972] VR 633.
5.101 A judgment for the return of the goods is appropriate in the case of a
chattel having some intrinsic value or in being so unique that it cannot be
replaced: McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312
(yacht held to have sufficient individuality to allow an order for its return).
A court will not order the return of a chattel if it can readily be replaced in
the market, as damages are an adequate remedy: General & Finance Facilities
Ltd v Cooks Cars (Romford) Ltd; Whitely Ltd v Hilt [1918] 2 KB 808 at 819.
7
Limitation Period
5.102 For actions in tort claiming damages in respect of property, the
limitation period is six years, except in the Northern Territory where it is
three years: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s
14(1)(b); Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974
(Qld) s 10(1)(a); Limitation of Actions Act 1936
[page 107]
(SA) s 35(c); Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act
1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 9. See also Chapter 14.
5.103 For actions in trespass to chattels, the limitation period commences
to run at the date of the interference. In conversion, the cause of action arises
at the date the goods are converted. For actions in detinue, time runs from the
moment the defendant’s possession becomes wrongful, that is, after demand
and refusal: Ming Kuei Property Investments Pty Ltd v Hampton (1994) 126
ALR 313.
5.104 Where there is more than one wrongful act constituting conversion
or detinue (successive conversions), the cause of action is barred six years
from the date of the first act: Limitation Act 1985 (ACT) s 18; Limitation Act
1969 (NSW) s 21; Limitation Act 1981 (NT) s 19(1); Limitation of Actions
Act 1974 (Qld) s 12(1); Limitation Act 1974 (Tas) s 6(1); Limitation of
Actions Act 1958 (Vic) s 6(1); Limitation Act 2005 (WA) s 59. There is no
equivalent in South Australia. The effect of this limitation in some
jurisdictions is that the plaintiff’s title in the goods is extinguished: Limitation
Act 1981 (NT) s 19(2); Limitation of Actions Act 1974 (Qld) s 12(2);
Limitation Act 1974 (Tas) s 6(2); Limitation of Actions Act 1958 (Vic) s 6(2).
See also 14.12.
Further Reading
L Aitken, ‘The Abandonment and Recaption of Chattels’ (1994) 68 ALJ
263.
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 4.
J Goldring, ‘The Negligence of the Plaintiff in Conversion’ (1977) 11
MULR 91.
J Tooher, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by
Finding’ (1998) 6 APLJ 117.
[page 109]
Chapter 6
Defences to Trespass
1
Introduction
6.1 Despite the fact that to be liable in trespass the defendant must be at
fault — that is, either committed the interference intentionally or due to lack
of care — there is a wide range of defences available. Some are of limited
application and some of practical importance.
2
Inevitable Accident
6.2 To succeed in any trespass, there is the requirement that the defendant
be at fault. If there is no fault on the part of the defendant, this may be
referred to as the defence of ‘inevitable accident’. Inevitable accident remains
a defence in Australia where trespass actions are classified as direct, unlike the
United Kingdom where intention is a necessary element for all trespasses.
Therefore, in the United Kingdom, an inevitable accident would mean that
there is no trespass due to lack of intention: Letang v Cooper [1965] 1 QB 232.
6.3 In a non-highway trespass in Australia, the defendant can raise absence
of fault as a defence, and proof of an inevitable accident will demonstrate the
absence of such fault. For example, the child defendant in McHale v Watson
(1964) 111 CLR 384 was held to have thrown the dart without intention or
negligence and, therefore, not liable in trespass. See also National Coal Board
v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861.
6.4 It may be argued that it is an inevitable accident if the interference was
the consequence of an involuntary act as there is neither intention nor lack of
care: see 2.15 and 6.65. In Public Transport Commission (New South Wales) v
Perry (1977) 137 CLR 107; 14 ALR 273, it was considered whether the
respondent had trespassed by falling unconscious onto the railway tracks
during an epileptic attack. Gibbs J explained (CLR at 133; ALR at 294):
A person who is lawfully upon premises, and is using the premises in an ordinary and
reasonable way, becomes a trespasser only if he goes voluntarily on to part of the premises to
which the invitation does not extend: if he falls, or is pushed, on to a forbidden area he does not
thereby become a trespasser.
[page 110]
3
Consent
6.5 There is some debate as to whether consent is a defence to trespass
actions or lack of consent is an element of the action.1 Whichever view is
taken, valid consent will prevent an action for trespass to land, goods or
person arising: Amess v Hanlon (1873) 4 AJR 90; Latter v Braddell (1881) 44
LT 369; McNamara v Duncan (1971) 26 ALR 584.
6.6 The consent may be express or implied. For example, there is implied
consent for the public to enter land for legitimate purposes: Halliday v Nevill
(1984) 155 CLR 1; 57 ALR 331; TCN Channel Nine Pty Ltd v Anning (2002)
54 NSWLR 333. See 4.27.
6.7
Participants in body contact sports are taken to have impliedly
consented to contact that is within the normal incidence of playing the sport:
McNamara v Duncan (1971) 26 ALR 584. However, battery may be proven if
the contact occurs outside the rules of the game: McNamara v Duncan. In
Giumelli v Johnston (1991) Aust Torts Reports ¶81-085, the plaintiff and the
defendant were in opposing teams in an Australian Rules football match. The
defendant collided with the plaintiff, who was holding the ball during open
play, using a ‘hip and shoulder’ bump, which was permitted under the rules of
the game. However, just before contact, the defendant raised his elbow in a
thrusting action into the plaintiff’s cheekbone. This was against the rules of
the game. The plaintiff sued the defendant, alleging a battery, and the
defendant argued that the plaintiff had consented to the contact by
participating in the game. The Full Court of the Supreme Court of South
Australia held that the blow constituted a battery. King CJ (with whom Mohr
and Prior JJ agreed) said (at 68,708–10):
The rules of Australian Rules Football permit bodily contact, including strong bodily contact, in
the course of the game. Those who participate in a football match are taken to consent to the
infliction on them of such physical force as is permitted by the rules of the game. It was accepted
by the [plaintiff] in evidence, moreover, that some bodily contact outside the rules of the game is
to be expected as an ordinary incident of a football match … Although a player’s consent to the
application of force to him in the course of the game extends not only to the application of force
within the rules of the game but also to certain commonly encountered infringements of the
rules … such consent cannot be taken to include physical violence applied in contravention of
the rules of the game by an opposing player who intends to cause bodily harm or knows, or
ought to know, that such harm is the likely result of actions.
See also Canterbury Bankstown Rugby League Football Club Pty Ltd v
Rogers (1993) Aust Torts Reports ¶81-246, which involved a head-high tackle,
outside the rules, in a rugby league game. The player was held liable for the
battery, as was the player’s club through vicarious liability.
6.8
To be valid consent:
the interference must be within the scope of the consent;
it must be voluntary; and
the plaintiff must have the legal capacity to give consent.
[page 111]
Scope of the Consent
6.9 If the interference exceeds the scope of, or the conditions attached to,
the consent, there is no valid consent, and the entire conduct may be
trespassory. For example, in Barker v R (1983) 153 CLR 338; 47 ALR 1, the
express consent to enter the premises was for the purpose of security, not for
the purpose of theft. See 4.25.
As for the implied licence to the public to enter premises, it is limited in
scope and is valid only in relation to legitimate purposes: Halliday v Nevill
(1984) 155 CLR 1; 57 ALR 331: see 4.27ff. Therefore, a defendant who enters
the plaintiff’s property for an illegitimate purpose is a trespasser from the
initial entry as the entrance is not within the scope of the licence: TCN
Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; Rinsale Pty Ltd v
Australian Broadcasting Corporation (1993) Aust Torts Reports ¶81-231.
If a plaintiff has consented to a criminal act, that consent will be a valid
defence in civil proceedings, although the defendant may remain criminally
liable: Bain v Altoft [1967] Qd R 32 at 41.
Voluntary
6.10 If the consent has been obtained by fraud or duress it will not be valid
as it is not voluntary.
For fraud to negate the consent, the fraud must go to the quality of the act
consented to and not to its nature, which is merely collateral: Hegarty v Shine
(1878) 14 Cox CC 124; Smythe v Reardon [1949] St R Qd 74. In R v Williams
[1923] 1 KB 340, the defendant argued consent by the plaintiff to sexual
intercourse. However, he had gained her consent by persuading her she
required a ‘special’ surgical procedure to improve her singing voice (he was
her teacher) and therefore there was no valid consent. The plaintiff had been
induced by the fraud as to the nature of the act. In contrast, in R v
Papadimitropoulos (1957) 98 CLR 249 the High Court held that there had
been consent to sexual intercourse by the complainant, the fraud was that the
complainant had agreed in the belief that she and the defendant were
married, when they were not.
6.11 In Dean v Phung [2012] NSWCA 223, the appellant alleged that the
consent to dental treatment had been obtained by fraud as it had been
misrepresented as reasonably necessary when it was carried out to generate
income. The appellant had suffered minor damage to his front teeth in a work
accident yet the respondent undertook 12 months of treatment that involved
root canals to remove all nerves and capping every tooth. In Dean v Phung
[2011] NSWSC 653, the judge held that the treatment was incompetent but,
on the balance of probabilities, fraud had not been proved: at [29]. On appeal
the court stated that the treatments carried out were not for a therapeutic
purpose. Basten JA held ‘a procedure of the nature carried out was not
capable of addressing the patient’s condition, there can be no valid consent’:
at [63]. Macfarlan JA explained (at [94]):
… it was established that the practitioner did not perform the relevant procedures undertaken
on the appellant’s teeth for therapeutic purposes but for another purpose, presumably to
generate income for himself. … I consider this finding to be necessary for the conclusion that
the appellant did not consent to the procedures and they therefore constituted a trespass to his
person. On the basis of that finding, the appellant was not aware of the nature and character of
[page 112]
the dental acts: he believed that they constituted dental treatment that the practitioner regarded
as necessary or appropriate. In fact, when the practitioner’s state of mind is taken into account,
that was not their character. They were acts designed to generate income for the practitioner.
6.12 Consent procured by duress will be ineffective: Symes v Mahon [1922]
SASR 447 (case of false imprisonment).
Capacity to Consent
6.13
The plaintiff must be able to give valid consent. Therefore, the
plaintiff’s age may be relevant as well as their mental ability. There is no
legislation that states at what age a minor may give valid consent. In Gillick v
West Norfolk & Wisbech Area Health Authority [1986] AC 112 at 188, a case
concerning consent by a minor to medical treatment, Lord Scarman stated:
… a minor’s capacity to make his or her own decision depends upon the minor having sufficient
understanding and intelligence to make the decision and is not to be determined by reference to
any judiciary fixed age limit.
See also Secretary, Department of Health & Community Services v J W B
(Marion’s case) (1992) 175 CLR 218 at 238.
In actions of battery (see 3.10), to avoid actions for interferences that were
part of everyday life in society, it was reasoned that there was implied consent
to such contact. It was the requirement that there must be capacity to consent
that led to the abandonment of this principle. In Re F (Mental Patient:
Sterilisation) [1990] 2 AC 1 at 72, it was observed that rationalising contact
that forms part of everyday life as being ‘founded upon implied consent to
bodily contact’ was artificial, making particular reference to the difficulty in
imputing consent to minors and those suffering mental disorders.
Consent to Medical Treatment
6.14 To be valid consent to medical treatment, the same principles apply as
discussed above. In Schloendorf v Society of New York Hospital 105 NE 92
(1914) at 93, Cardozo J stated:
Every human being of adult years and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation without his patient’s consent
commits an assault, for which he is liable in damages.
This has been adopted in Australia. In Secretary, Department of Health &
Community Services v J W B (Marion’s case) (1992) 175 CLR 218 at 310,
McHugh JA stated:
At common law, therefore, every surgical procedure is an assault unless it is authorised, justified
or excused by law.
6.15 Basten JA of the New South Wales Court of Appeal summarised the
law as to consent to medical treatment in Dean v Phung [2012] NSWCA 223
at [61]–[64]:
Consent will be valid where the basic information as to the nature of
the proposed medical treatment has been provided to the patient, but if
the nature has been misrepresented the consent is not valid.
The effect of the misrepresentation must be identified if the proposed
treatment is capable of achieving the therapeutic effect. It is ‘necessary
to distinguish between
[page 113]
core elements, which define the nature of the procedure, and
peripheral elements, including risks of adverse outcomes’: at [62].
There is no valid consent if the motive of the practitioner was to
provide non-therapeutic treatment although objectively the proposed
treatment was capable of constituting therapeutic treatment.
Scope of consent
6.16
A signed consent form is not conclusive evidence: Chatterton v
Gerson [1981] 1 All ER 257. Consent to a particular medical procedure is not
necessarily consent to other procedures performed during the same
operation, unless it is proven that there was implicit consent. In McDonald v
Ludwig [2007] QSC 028, the plaintiff underwent a sterilisation operation.
Before the operation, the plaintiff had been made aware of the possible
presence of adhesions that could increase the risk of failure and injury to the
bowel. During the sterilisation, the surgeon separated the adhesions. The
court held that although the plaintiff had not expressly consented to the
division of the adhesions, it was implicit in the advice given to her that the
surgeon may need to deal with them in some way. Therefore, there was no
trespass to the person as the division of the adhesions was incidental to the
sterilisation: at [83]–[84]. Contrast Schweizer v Central Hospital 53 DLR (3d)
494 (1974), where a patient successfully sued as he consented to toe surgery
not to spinal fusion. See also, Murray v McMurchy 2 DLR 442 (1949), where it
was held that a sterilisation procedure undertaken during a caesarean because
it was convenient but not necessary, was not within the scope of the consent.
See also Dean v Phung [2012] NSWCA 223 at [61]–[65].
Voluntary
6.17 It is more common that scope and capacity are in issue in medical
cases of trespass. However, if the consent to the treatment was obtained by
fraud or duress, then it will not be valid. In Dean v Phung [2012] NSWCA
223, the allegation was that the respondent had committed fraud by
representing that the expensive course of treatment was necessary when in
fact it was not. The issue was ‘whether treatment which was unnecessary (and
now conceded to be so) was presented as necessary (again conceded) so that
any apparent consent did not satisfy the criteria for consent to treatment, the
treatment in question being unnecessary in the sense that it was not capable
of constituting a therapeutic response to the patient’s condition’: at [65]. The
court held that as the treatment was not necessary, the misrepresentation
went to the nature of the treatment and therefore the appellant’s consent was
not valid.
Capacity to consent
6.18
If an adult patient lacks legal capacity to give consent, the
guardianship legislation provides for consent to be given by that person’s
appointed guardian under strict regulation: Guardianship and Management
of Property Act 1991 (ACT); Guardianship Act 1987 (NSW); Adult
Guardianship Act 1988 (NT); Guardianship and Administration Act 2000
(Qld); Guardianship and Administration Act 1993 (SA); Guardianship and
Administration Act 1995 (Tas); Guardianship and Administration Act 1986
(Vic); Guardianship and Administration Act 1990 (WA).
[page 114]
6.19 Australian legislation provides that a person attains adulthood upon
the age of 18 years: Age of Majority Act 1974 (ACT) s 5; Minors (Property
and Contracts) Act 1970 (NSW) s 9; Age of Majority Act 1981 (NT) s 4; Law
Reform Act 1995 (Qld) s 17; Age of Majority (Reduction) Act 1971 (SA) s 3;
Age of Majority Act 1973 (Tas) s 3; Age of Majority Act 1977 (Vic) s 3; Age of
Majority Act 1972 (WA) s 5. It is the parents or guardian of a minor who
must give consent for, or the refusal of, medical treatment until the child is of
an age at which they are capable of giving valid consent. In Gillick v West
Norfolk & Wisbech Area Health Authority [1986] AC 112 at 188–9, it was held
that a parent only had the right to consent to their child’s treatment until the
child possessed ‘a sufficient understanding and intelligence to enable him or
her to understand fully what is proposed’. This principle was approved by the
High Court in Secretary, Department of Health & Community Services v J W B
(Marion’s case) (1992) 175 CLR 218 at 237.
South Australian legislation specifically confers capacity to consent to
medical treatment upon children of 16 years of age: Consent to Treatment
and Palliative Care Act 1995 (SA) ss 3, 4 and 6. However, children under the
age of 16 years in South Australia (Consent to Treatment and Palliative Care
Act 1995 (SA) s 12) and under the age of 18 in all other Australian
jurisdictions, must possess sufficient understanding to give valid consent,
otherwise the consent must be by the parent or guardian. See also Minors
(Property and Contracts) Act 1970 (NSW) which gives limited protection to a
doctor treating a minor against actions in assault and battery.
6.20 A court exercising its jurisdiction in the interests of a child’s welfare
(parens patriae jurisdiction) may overrule the informed decision of a parent
or child. Such power is exercised with caution and it is the welfare of the child
which is paramount: Secretary, Department of Health & Community Services v
J W B (Marion’s case) (1992) 175 CLR 218 at 293; Sydney Children’s Hospital
Network (Randwick and Westmead) v X (2013) 49 Fam LR 330 at [10]. See,
for example, Minister for Health v AS (2004) 33 Fam LR 223 (a 15-year-old
child refused consent to blood transfusions due to religious beliefs with
parents’ support of decision); Re Heather; Director-General, Department of
Community Services v M [2003] NSWSC 532 (an 11-year-old child and
parents opposed chemotherapy in preference to seeking alternative and
experimental treatments).
6.21 Cosmetic surgery for minors has been the subject of much public
debate, raising the issue of whether children may validly consent to such
procedures. In Queensland, s 213B of the Public Health Act 2005 makes it an
offence to perform, or offer to perform, cosmetic surgery on a child, unless it
is believed on reasonable grounds that the procedure is in the best interests of
the child.
Emergency treatment
6.22 Under the common law it is permissible to provide treatment in an
emergency without obtaining consent if it is reasonable and necessary: Rogers
v Whitaker (1992) 175 CLR 479 at 489; 109 ALR 625 at 632; Secretary,
Department of Health and Community Services v J W B (Marion’s case) (1992)
175 CLR 218 at 310; Hunter and New England Area Health Service v A (2009)
74 NSWLR 88 at [31]; Gillick v West Norfolk & Wisbech Area Health
Authority [1986] AC 112. However, if the medical practitioner is aware that
[page 115]
the patient has denied consent, this emergency doctrine cannot be relied
upon to avoid liability.
If medical treatment is provided in an emergency and no person
authorised to give consent is available, the defence of necessity may be raised:
see 6.44.
6.23 Legislation exists in some jurisdictions that allows treatment in an
emergency, subject to knowledge of any refusal by the patient: Children and
Young Persons (Care and Protection) Act 1998 (NSW) s 174; Emergency
Medical Operations Act 1973 (NT) s 3; Consent to Medical Treatment and
Palliative Care Act 1995 (SA) s 13. The common law applies in the other
jurisdictions except in respect of the administration of blood transfusions: see
Transplantation and Anatomy Act 1978 (ACT) s 23; Transplantation and
Anatomy Act 1979 (Qld) s 20; Human Tissue Act 1985 (Tas) s 21; Human
Tissue Act 1982 (Vic) s 24; Human Tissue and Transplant Act 1982 (WA) s
21.
6.24
If the patient is an adult lacking capacity to give consent, the
guardianship legislation in many jurisdictions allows emergency treatment
without consent: Guardianship Act 1987 (NSW) s 37; Emergency Medical
Operations Act 1973 (NT) s 3; Guardianship and Administration Act 2000
(Qld) s 63; Guardianship and Administration Act 1995 (Tas) s 40;
Guardianship and Administration Act 1986 (Vic) s 42A; Guardianship and
Administration Act 1990 (WA) s 110ZH.
Right to refuse medical treatment
6.25 The rights of patients to consent to or refuse medical attention,
although not doubtful in principle, are sometimes difficult in application. It is
quite clear that an adult patient with the capacity to decide may refuse
treatment even if that refusal is life-threatening and even without giving
reasons, rational or otherwise: Hunter and New England Area Health Service v
A (2009) 74 NSWLR 88; Re T (Adult: Refusal of Treatment) [1993] Fam 95;
Qumsieh v Guardianship and Administration Board [1998] VSCA 45; St
George’s Healthcare NHS Trust v S [1998] 3 All ER 673. In Airedale NHS
Trust v Bland [1993] AC 789 at 891, it was stated:
If the patient is capable of making a decision on whether to permit treatment and decides not to
permit it his choice must be obeyed, even if on any objective view it is contrary to his best
interests. A doctor has no right to proceed in the face of objection, even if it is plain to all,
including the patient, that adverse consequences and even death will or may ensue.
See also Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449
(removal of ventilator would lead to death but issue was whether patient had
the capacity to make the decision); Brightwater Care Group v Rossiter [2009]
WASC 229 (issue was the process of refusal of treatment, not the outcomes of
refusal).
6.26 The common law recognises that a person may complete an advance
health directive which will legally bind the person treating them. The
directive may refuse medical treatment and if valid, a medical practitioner
who provides treatment contrary to the directive may be liable in tort: Hunter
and New England Area Health Service v A (2009) 74 NSWLR 88. In some
Australian jurisdictions legislation governs this area of the law, and adults
may prepare advance health directives that state the person’s instructions as
to their future health care:
[page 116]
Medical Treatment (Health Directions) Act 2006 (ACT) Pt 2; Advance
Personal Planning Act 2013 (NT) Pt 2; Powers of Attorney Act 1998 (Qld) Ch
3, Pt 3; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 8;
Medical Treatment Act 1988 (Vic) ss 5A, 5B(2); Guardianship and
Administration Act 1990 (WA) s 110P. In some jurisdictions, it may be a
criminal offence to administer treatment against a patient’s wishes: Medical
Treatment Act 1988 (Vic) s 6; Guardian and Administration Act 1990 (WA)
Pt 9B. The common law applies in New South Wales and Tasmania.
Revocation or Withdrawal of Consent
6.27 Consent, express or implied, may be revoked or withdrawn by the
party who gave the consent.
6.28 Revocation or withdrawal may take place before or after the act
consented to has taken place. In Plenty v Dillon (1991) 171 CLR 635; 98 ALR
353, it was held by the High Court that the implied licence to enter the
plaintiff’s premises had been revoked prior to the police officers’ entry to
serve a summons and, therefore, entry was a trespass: see 4.32. In Kuru v New
South Wales (2008) 246 ALR 260, it was held that, by failing to leave the
appellant’s property within a reasonable time after revocation of consent, the
police officers were committing a trespass: see 4.35.
6.29 It is also possible that a contractual term prevents the withdrawal of
the plaintiff’s consent having immediate effect: Balmain New Ferry Co Ltd v
Robertson (1906) 4 CLR 379, and see 3.63.
4
Self-Defence
6.30 An act of self-defence is regarded by the law as an instinctive reaction
in circumstances where there is little opportunity for rational analysis of all of
the possible courses open. The defendant’s interference is justified by the
need to avert the threat of imminent harm to their person.
To succeed in the defence of self-defence, the defendant must prove:
there was a threat of imminent harm to their person; and
there were reasonable grounds to believe that the force used was
necessary: Fontin v Katapodis (1962) 108 CLR 177; McClelland v
Symons [1951] VLR 157.
In Watkins v Victoria (2010) 27 VR 543 at [71]–[72], the defence was
explained as follows:
In the context of a civil proceeding, the defendant must have believed at the time when he
committed the relevant act that what he was doing was necessary; and that belief must have been
based on reasonable grounds. The second element does not involve a test about what a
hypothetical reasonable person might have believed in the circumstances, but rather whether the
defendant had reasonable grounds for his belief, in the circumstances as he perceived them to
be.
In determining whether the defendant believed that the force used was necessary, consideration
should be given to the fact that a person who has reacted instantly to imminent danger cannot
be expected to weigh precisely the exact measure of self defensive action which is required.
See also Howard v Wing [2000] TASSC 147; Pearce v Hallett [1969] SASR
423; Bennett v Dopke [1973] VR 239.
[page 117]
6.31 If the defendant used excessive force, the defence will fail: Fontin v
Katapodis (1962) 108 CLR 177; Underhill v Sherwell [1997] NSWCA 325. The
degree of force will be a question of fact in view of all of the circumstances:
Watkins v Victoria (2010) 27 VR 543 at [72]. In McClelland v Symons [1951]
VLR 157, the plaintiff picked a rifle, loaded it and pointed it at the defendant
saying, ‘I’ve brought the gun to shoot you and here it is’. The defendant then
struck the plaintiff on the head with a metal bar and ended up being sued for
battery. It was held that the defendant had not committed a battery as he was
acting in reasonable self-defence. In Miller v Sotiropoulos (NSWCA, Mason P,
Meagher and Powell JJA, 18 August 1997, unreported) when considering the
claim of self-defence, Meagher JA observed ‘a minor push cannot possibly
justify a lethal punch in reply’: at 14.
In Fontin v Katapodis (1962) 108 CLR 177, the plaintiff was a customer at
the glass department of a hardware store. The defendant was employed to cut
glass in the department. The plaintiff and the defendant argued when the
defendant refused to apologise to the plaintiff for telling the manager of the
glass department that he (the plaintiff) had not paid his account when he had,
in fact, done so. The plaintiff picked up a T-square from beside the
defendant’s bench and hit the defendant on the shoulder. The defendant then
threw an off-cut of glass at the plaintiff’s face. The plaintiff put up his hands
to protect his face, and the glass made a deep cut in his arm. The High Court
of Australia held that the plaintiff’s action in battery succeeded because the
defendant’s act of self-defence was unreasonable. McTiernan J said (at 181–
2):
It is clear that Fontin had a right to defend himself against being beaten by Katapodis. The
question is whether, in the circumstances, it was reasonably necessary for him to throw the piece
of glass at Katapodis … Perhaps Katapodis may have struck more severe blows if Fontin had not
prevented him. But to throw the piece of glass at Katapodis as a means of self-defence was out of
all reasonable proportion to the emergency confronting Fontin.
6.32 In Queensland, the definition of ‘assault’ in s 245 of the Criminal
Code is applied to civil cases of assault and battery; therefore, the defences
contained in the Code may also apply: see 3.43. Section 271 provides a
complete defence in that it is lawful for the defendant to use such force that is
reasonably necessary to make an effectual defence against the unprovoked
attack. The force cannot be intended, or likely, to cause grievous bodily harm
or death.
In Western Australia, the defences contained in the Criminal Code are
available in civil actions as ‘if an act is declared lawful by a provision of the
Criminal Code, the effect of s 5 of the Criminal Code Act is to provide a
statutory defence in addition to any existing common law defences’: May v
Thomas (No 2) [2012] WADC 96 at [21]. Therefore, self-defence against an
unprovoked assault may be raised as a defence: Criminal Code (WA) s 248.
See also s 52 of the Civil Liability Act 2002 (NSW), which provides that a
person does not incur civil liability for conduct arising from self-defence if
they believe the conduct is necessary. See New South Wales v McMaster
[2015] NSWCA 228.
5
Defence of Another
6.33 Historically, it was a good defence to use reasonable force to protect a
party closely related to, or associated with, oneself, for example a spouse or
other close
[page 118]
relative such as a parent or child, or a servant or master. There is no reason
why the defence should not extend to all persons, but the cases have not
established a body of law extending the defence to cases where the defendant
was defending a stranger. The same requirements as in self-defence apply to
defence of another — the defendant must believe on reasonable grounds that
it was necessary for them to have done what they did in defence of another
person: R v Portelli (2004) 148 A Crim R 282; Watkins v Victoria (2010) 27
VR 543.
In Goss v Nicholas [1960] Tas SR 133, the plaintiff and a female friend
named Wilson went to the house of a man named Pemberton to complain of
certain words Pemberton’s daughter had used to Wilson’s daughter. The
plaintiff and Pemberton had a heated dialogue on the doorstep, and the
plaintiff repeatedly wagged his finger at Pemberton, saying that he would be
‘on the warpath’ if Pemberton’s daughter was not punished. The defendant
then came running past Pemberton and struck the plaintiff a heavy blow on
the cheek. The plaintiff alleged battery, but the defendant alleged that his
actions were reasonably necessary in defence of Pemberton. Crawford J said
(at 144):
[I] take the law to be that a person is entitled to use force to prevent a stranger from being
assaulted if he has reasonable grounds for believing that an assault upon that stranger is about to
take place. In considering what force may be used, I hold that it must be reasonably
proportioned to the degree of injury to be expected from the assault upon the stranger.
It was held that the defendant had used more force than was reasonably
necessary, given the nature of the threat to Pemberton by the plaintiff.
6.34 For civil actions in Queensland, s 273 of the Criminal Code provides
the same defence. See also Criminal Code (WA) s 250. Section 52 of the Civil
Liability Act 2002 (NSW) provides that a person does not incur civil liability
when defending another person if they believe the conduct is necessary.
6
Provocation (Queensland)
6.35 Provocation arises when it is alleged that the acts of the plaintiff
induced the defendant to lose self-control. It is not a defence under the
common law (Fontin v Katapodis (1962) 108 CLR 177), but in Queensland,
due to the application of the Criminal Code to civil actions of assault and
battery, provocation as provided by the Code provides a complete defence:
White v Connolly [1927] St R Qd 75; Love v Egan (1970) 65 QJPR 102; see
3.44.
To establish provocation under s 269 of the Criminal Code (Qld), the
defendant must prove that:
they were provoked by the plaintiff and acted before there was time for
their passion to cool;
the force used was not disproportionate to the provocation (see 6.31);
and
the force used was neither intended nor likely to cause death or
grievous bodily harm.
See also, Criminal Code (WA) s 246.
6.36 In Prior v Kemp [2001] WASCA 22, the appellant was convicted of
assault under s 313 of the Criminal Code (WA). The appellant claimed that
he had been provoked by his
[page 119]
estranged wife’s insults that he had cheated his dying grandfather. At trial, it
was held that the defence of provocation (Criminal Code (WA) s 246) was
not available as the evidence was that the assault had not occurred in response
to the wife’s comments; there was no sudden reaction by the appellant. The
court on appeal stated (at [60]):
In the first stage, the gravity of the provocation is assessed by reference to the particular
characteristics of the accused which may be relevant. Such characteristics may include age, race,
sex, personal history and other factors. The result of that assessment is a characterisation of the
provocation upon a scale of gravity, ranging from minor and trivial to extreme. The next
question involves an assessment of how an ordinary person could have responded to
provocation of that particular degree of gravity.
It was held that there was no defence of provocation as the evidence was
that there was no loss of self-control; allegations concerning the appellant’s
grandfather had been raised for over 13 years between the parties and the
assault was linked to the appellant taking steps to remove his wife from the
premises.
7
Defence of Property
6.37 It is a good defence to use reasonable force to defend one’s own
property: Norton v Hoare (No 1) (1913) 17 CLR 310 at 322. There is no reason
why it should not extend to defence of another’s property but, as with defence
of others, the authorities have not clearly confirmed such a broad principle.
The defensive conduct must be proportionate to the threatening activity,
although it could be argued that the interest in property should be less
deserving of protection than that of personal safety and this may have an
effect on measuring proportionality. For civil actions of assault and battery in
Queensland, the defence is contained in s 277 of the Criminal Code. See also
Criminal Code (WA) s 254 (defence of property against trespassers: removal
of disorderly persons).
8
Self-Help
6.38 A person may be entitled to enter the land of another or take other
self-help measures, upon giving of due notice, to abate a nuisance which
substantially interferes with enjoyment of one’s land: see Chapter 25.
Therefore, justified abatement of nuisance is a defence to an action for
trespass to land: Lemmon v Webb [1895] AC 1. However, the acts of
abatement must be reasonable and proportionate to the nuisance.
See also s 141 of the Civil Law (Wrongs) Act 2002 (ACT), where it is a
defence to an action in trespass to land if:
the defendant does not claim an interest in the land; and
establishes that the trespass was unintentional or was due to
negligence; and
has made a reasonable offer to make amends before an action is
brought.
[page 120]
9
Necessity
6.39 Necessity differs from defence of an interest because it need not
involve a response to some wrongdoing by another; it is merely a necessary
response to the imminent threat of danger from any source. In Proudman v
Allen [1954] SASR 336 at 341, Hannan AJ stated:
… the immunity for the consequences of such acts of interference is not limited to persons
having an interest in the chattels concerned or a duty to preserve them, but extends to everyone
who acts reasonably in a real emergency for the purpose of saving the goods of another from
damage or destruction, whether he or she derives or is likely to derive any pecuniary advantage
from the action or not, or is fulfilling any legal obligation.
6.40 The defence of necessity requires that reasonable steps were taken to
protect a person or property from harm even if, in so doing, damage is caused
to another. For the defence to be successful there must be:
an imminent threat of grave harm to the plaintiff, property or goods;
a reasonable apparent necessity for taking such action; and
no fault on the part of the defendant for creating the imminent harm.
Imminent Threat
6.41 For the defence to apply there must be a real and imminent threat of
harm: Cresswell v Swirl [1947] 2 All ER 730 at 732. An imminent threat is one
that is about to happen. For example, in Cope v Sharpe (No 2) [1912] 1 KB
496, there was an imminent threat of property being destroyed as a fire was
approaching. In Cresswell v Swirl, the imminent threat was a trespassing dog
renewing its attack on the defendant’s animals if not stopped.
However, in London Borough of Southwark v Williams [1971] Ch 734, there
was insufficient urgency and threat of peril to allow it as a defence to destitute
squatters trespassing in empty council dwellings. Lord Denning MR said (at
744):
[I]f hunger were once allowed to be an excuse for stealing, it would open a way through which
all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as
a defence to trespass, no one’s house would be safe. Necessity would open a door which no man
could shut.
Reasonable Necessity
6.42 The interference by the defendant must be the result of reasonable
steps being taken to protect the lives or property of the public. The steps
taken to eliminate the danger must be reasonable in all of the circumstances:
Cresswell v Swirl [1947] 2 All ER 730; Murray v McMurchy [1949] 2 DLR 442.
Police, for example, may need to act out of necessity to capture criminals
(Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; 2 All ER
985) or otherwise to protect the public: Dehn v Attorney-General [1988] 2
NZLR 564.
In Proudman v Allen [1954] SASR 336, the defendant’s act of opening the
door of the plaintiff’s runaway car and steering it away from other parked
vehicles was justified even though as a result, the car ran off a cliff into the
sea.
[page 121]
In Cope v Sharpe (No 2) [1912] 1 KB 496, the defendant entered the
plaintiff’s land to start a firebreak to prevent an existing fire from spreading to
his employer’s property. Setting fire to the heather was held to be reasonable
in the circumstances and so justified. Similarly, the defendant’s act of
interference with the plaintiff’s vessel by towing it away was justified as
necessary to prevent destruction of the defendant’s wharf in Beckingham v
Port Jackson & Manly Steamship Co (1957) SR (NSW) 403.
Imminent Threat Not Due to Defendant’s
Negligence
6.43 Where the need to act out of necessity has been brought about by the
defendant’s own actions or own negligence, the defence of necessity will not
be available. In Rigby v Chief Constable of Northamptonshire [1985] 1 WLR
1242; 2 All ER 985, the police fired gas canisters into the plaintiff’s gunsmith
shop where a dangerous psychopath was hiding. Despite knowing that this
person had spread inflammable powder on the floor of the shop, which could
be ignited by the heated gas canisters, the police failed to ensure that adequate
fire-fighting equipment was available. The shop burnt down and, despite the
emergency situation, the defence of necessity was not allowed due to the
negligence of the police. See also Simon v Condran [2013] NSWDC 32, where
the plaintiff was claiming damages for being bitten by the defendant’s dog.
The defendant claimed that at the time the plaintiff was trespassing on the
land, a defence under the relevant legislation in respect of dogs. The plaintiff
argued that the trespass was necessary to stop a fight between her dog and the
defendant’s (the emergency). The court held that it was the plaintiff’s own
negligence, more than just inattention or mere inadvertence, that allowed the
emergency to arise and therefore the defence of necessity did not apply.
Medical Necessity
6.44 The defence of necessity often arises in actions of trespass to the
person against doctors arising from operations. This was considered in detail
in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, in relation to medical
treatment and a category of necessity in which assistance is provided out of
necessity to another without their consent. The House of Lords held that
necessity of this kind required:
a necessity to act when it was not practicable to communicate with the
assisted person; and
the act of necessity must be such as a reasonable person would take, in
all the circumstances, when acting in the best interests of the assisted
person.
In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER
961, the English Court of Appeal applied the doctrine of necessity to hold that
an operation to separate twins was needed. The court held that the evil
inflicted (the death of one twin) was not disproportionate to the evil avoided
(the death of both twins). Therefore, by the doctrine of necessity, the death of
the twin as a result of the operation was necessary to avoid a greater evil in
the death of both of the children. See also Queensland v Nolan [2002] 1 Qd R
454 where, in similar circumstances, the Queensland Supreme Court held
that the defence of necessity did not apply to the Criminal Code, but
approved the approach in Re A (Children) (Conjoined Twins: Surgical
Separation).
[page 122]
10
Defences Specific to Trespass to
Personal Property
Jus Tertii
6.45 In respect of cases where title to the goods, that is ownership, is in
issue, the defence of jus tertii may be raised: Banks v Ferrari [2000] NSWSC
874 at [85] and [120]. Jus tertii may be raised if the defendant alleges that the
right to immediate possession is vested in a third party: Leake v Loveday
(1842) 4 Man & G 972; 134 ER 399.
The defence was explained by Henchman J in Henry Berry & Co Pty Ltd v
Rushton [1937] SR Qld 109 at 119:
[A]lthough where the plaintiff was in actual possession of the goods when the defendant by a
wrongful act got possession of them the defendant can plead the jus tertii only in certain cases
… it is otherwise when the plaintiff was not in actual possession when the wrongful act was
done. When the plaintiff was not in actual possession, but relies upon his right to possession, he
must recover on the strength of his title, and the defendant may, under a plea of not guilty or
not possessed, show that the plaintiff has no right to immediate possession because that right is
in some other person.
However, jus tertii can only be raised by a defendant whose title to sue
derives from the third party with better title. In Armory v Delamirie (1722) 1
Stra 505; 93 ER 664, a chimney sweep’s boy (the finder) found a jewelled ring
and took it to a jewellery shop for valuation. The jeweller’s apprentice
removed the jewel from the ring after weighing it and returned only the
setting. He made an offer for it that was refused. The finder sued the owner of
the shop in conversion for the value of the jewel. It was held that jus tertii did
not apply as the defendant was not claiming title to the goods through a third
party, but merely asserting that the finder was not the true owner of the ring.
Loss of Possession
6.46 In conversion, the defendant may avoid liability if they can show that
possession is no longer retained and that the loss of possession was not due to
a positive act on the defendant’s part: Ashby v Tolhurst [1937] 2 KB 242. In
conversion, a negligent subsequent loss of possession prevents conversion
arising, but a negligent loss will not prevent detinue applying in an
appropriate case.
Distress Damage Feasant
6.47 An occupier of land may detain goods that are unlawfully on their
land and causing damage, until compensation is paid for any damage caused:
Gilchrist, Watt & Cunningham v Logan [1927] St R Qd 185. Therefore, an
occupier of land may claim that the possession of the plaintiff’s goods is due
to distress damage feasant.
This self-help remedy has many restrictions. It is not available if the owner
of the goods is on the land: Tow & Salvage Ltd v Murray [1984] 2 NZLR 144;
Swenson v Shire of Drayton [1932] St R Qd 98. It may not be claimed if the
chattels are no longer on the land: Clement v Milner (1880) 3 Esp 95; 170 ER
550.
Although distress damage feasant originally was used for damage caused by
straying livestock, distress in respect of livestock has been abolished or
modified in some jurisdictions:
[page 123]
Civil Law (Wrongs) Act 2002 (ACT) s 213; Animals Act 1977 (NSW) s 5; Law
of Animals Act 1962 (Tas) Pt II; Impounding of Livestock Act 1994 (Vic) ss
9–11.
11
Statutory Authority
6.48 Where a statute expressly authorises the doing of an act by a person,
no action in tort will lie against that person for doing the act authorised by
statute. For example, s 80(9B) of the Transport Operations (Road Use
Management) Act 1995 (Qld) states that a person required by a police officer
to give a specimen of blood must allow a health care professional to take the
specimen, and s 484 and Sch 3 of the Telecommunications Act 1997 (Cth)
authorise entry onto land to inspect, install or maintain a facility of the
communications carrier. However, if a person is authorised by statute to be
on the plaintiff’s property and a wrong is then committed, the law deems it to
be a trespass from the initial entry under the doctrine of trespass ab initio: see
4.38.
6.49 Whether there is statutory authority will depend upon the effect of
the statute in question: O’Brien v Shire of Rosedale [1969] VR 645. There is a
presumption not to interfere with common law rights and so the onus is upon
the defendant claiming the statutory authority to establish that the invasion of
another’s rights is sanctioned by statute: Allen v Gulf Oil Refining Ltd [1981]
AC 1001; Amstad v Brisbane City Council & Ward (No 1) [1968] Qd R 334.
6.50 Where public bodies are authorised to carry out some activity that
causes damage, no liability will arise unless the activity is carried out
negligently. Only clear words in the statute indicating that a negligently
performed activity will not attract liability will provide immunity from suit:
Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 at 455 per Lord
Blackburn; applied in Benning v Wong (1969) 122 CLR 249 at 256. See also
Soanes v Plessing [1985] 2 Qd R 55.
In Coco v R (1994) 179 CLR 427; 120 ALR 415, the defendant had been
convicted of a criminal offence for offering to bribe Commonwealth officers.
The primary evidence against him was a series of tape recordings made by a
listening device installed by the police on premises occupied by the
defendant. The police had obtained an order from a judge, approving the
installation of the device under the Invasion of Privacy Act 1971 (Qld). The
defendant appealed against conviction, alleging the evidence against him was
inadmissible because it had been illegally obtained. The High Court of
Australia quashed his conviction. Mason CJ, Brennan, Gaudron and McHugh
JJ held (at CLR 436–7; ALR 417–19):
Every unauthorised entry upon private property is a trespass, the right of a person in possession
or entitled to possession of premises to exclude others from those premises being a fundamental
common law right. In accordance with that principle, a police officer who enters or remains on
private property without the leave or licence of the person in possession or entitled to possession
commits a trespass unless the entry or presence on the premises is authorised or excused by law.
Statutory authority to engage in what otherwise would be tortious conduct must be clearly
expressed in unmistakable and unambiguous language … General words will rarely be sufficient
for that purpose if they do not specifically deal with the question because, in the context in
which they appear, they will often be ambiguous on the aspect of interference with fundamental
rights.
[page 124]
In Schneidas v Corrective Services Commission (NSWSC, Lee J, 8 April
1983, unreported), a prisoner on a hunger strike sought an injunction to
restrain prison authorities from force-feeding him. Section 16(2) of the
Prisons Act 1952 (NSW) provided that if a prisoner’s life or health was likely
to be endangered by the failure to undergo medical treatment, the prisoner
could be compelled to undergo the treatment. It was held that if the prisoner’s
health had deteriorated to a crucial stage, force-feeding amounted to medical
treatment and was authorised by the legislation. It was noted that the defence
of necessity was unlikely to be available to the doctor.
6.51
In many cases, the relevant statute may provide for reasonable
compensation to be paid for any financial loss or damage. If no compensation
is provided for by the statute, the defendant must show the
interference/damage was the inevitable consequence of implementing the
statute: Manchester Corporation v Farnworth [1930] AC 171. In some cases,
the statute in question may purport to prohibit a court from considering the
matter: see Jones v Department of Employment [1989] QB 1.
12
Disciplinary Powers
6.52 Certain persons have common law rights to exercise some form of
disciplinary control over others. For example, masters of ships may use
reasonable force to restrain passengers and crew from hindering the safety of
the vessel or those on board the vessel: Robinson v Balmain New Ferry Co Ltd
[1910] AC 295.
6.53
Parents have a right to discipline children in a moderate and
reasonable manner: Ramsay v Larsen (1964) 111 CLR 16. In R v Terry [1955]
VLR 114 at 116, Scholl J stated:
A parent has a lawful right to inflict reasonable and moderate corporal punishment on his or her
child for the purpose of correcting the child in wrong behaviour, but there are exceedingly strict
limits to that right. In the first place, the punishment must be moderate and reasonable. In the
second place, it must have a proper relation to the age, physique and mentality of the child, and
in the third place, it must be carried out with a reasonable means or instrument …
A person who stands in loco parentis to a child with the parent’s consent
has delegated parental authority to discipline the child: Mansell v Griffin
[1908] 1 KB 160. See also R v Kinloch (1996) 187 LSJS 124, where it was held
that even if the nine-year-old child’s aunt was acting in loco parentis,
prolonged hitting with a horse whip because the child had difficulty with
reading could not be characterised as moderate and reasonable chastisement
for misbehaviour.
6.54
Similarly, teachers have disciplinary powers over pupils, either
because they are regarded as having had the parents’ disciplinary powers
delegated to them, or because their powers derive from the power vested by
the government in state school teachers to maintain control: Smith v O’Byrne
(1894) 5 QLJ 126; R v Terry [1955] VLR 114. This inherent power of teachers
overrides any express prohibition of corporal punishment by parents: Ramsay
v Larsen (1964) 111 CLR 16 at 29.
In many jurisdictions, the use of corporal punishment (physical force used
to punish or correct) as a means of discipline is prohibited by government
education authorities:
[page 125]
Education Act 2004 (ACT) s 7(4); Education Act 1990 (NSW) ss 35(2A) and
47(h); Education Act 2015 (NT) s 162; Education Act 1994 (Tas) s 82A;
Education and Training Reform Regulations 2007 (Vic) reg 14; School
Education Regulations 2000 (WA) reg 40(2).2 In Queensland, corporal
punishment was abolished through policy of the Department of Education in
1995 (Department of Education, Qld, Annual Report, 1994-1995, at p 6) and
is currently reflected in the Department of Education and Training’s ‘Safe,
Supportive and Disciplined School Environment’ procedure.
13
Judicial Acts
6.55 It is a good defence to an action in tort that the defendant is a
superior court judge who performed the tortious act in his or her judicial
capacity within the jurisdiction of the court: Gerard v Hope [1965] Tas SR 15;
Anderson v Gorrie [1895] 1 QB 668. Inferior judicial officers will be personally
liable if they act beyond their jurisdiction: R v Manchester City Magistrates’
Court; Ex parte Davies [1989] QB 631; [1988] 1 All ER 910; Spautz v
Butterworth (1996) 41 NSWLR 1.
6.56 Legislation exists to provide some immunity to judicial officers of
inferior courts when acting in good faith in the performance of their duties:
Magistrates Court Act 1930 (ACT) Pt 2.3; Judicial Officers Act 1986 (NSW)
Pt 8A; Magistrates Act 1977 (NT) s 19A; Magistrates Act 1991 (Qld) s 51;
Magistrates Court Act 1991 (SA) s 44; Justices Act 1959 (Tas) Pt XII;
Magistrates’ Court Act 1989 (Vic) s 14; Magistrates Court Act 2004 (WA) s
37.
14
Execution of Process
6.57 A sheriff or other court officer acting under a writ of execution or
warrant, which has been issued out of a superior court of record, has a good
defence to an action in trespass, conversion or false imprisonment, even if the
judgment upon which the process was based is invalid. It would seem such an
officer may be liable if the writ or warrant is itself invalid.
6.58 Officials of inferior courts have a similar defence, provided the writ or
warrant was properly issued and the subject matter of the judgment upon
which the writ or warrant was based was itself within the inferior court’s
jurisdiction.
Failure to act in compliance with the process will attract personal liability:
O’Connor v Sheriff of Queensland (1892) 4 QLJ 213.
15
Crown Authority
6.59 The Crown may raise the defence of act of state in respect of tortious
acts against aliens committed outside the Commonwealth. This defence is not
available within the Commonwealth, except in the case of a tortious act
committed against an enemy alien.
[page 126]
The Crown, furthermore, retains a prerogative to seize and destroy
property of an individual for the defence of the realm. Compensation may be
required unless the acquisition occurred during actual hostilities. Under the
Commonwealth Constitution, the Commonwealth may not acquire property
except upon just terms: see s 51(i).
16
Contributory Negligence
6.60
It has been generally assumed in Australia that contributory
negligence is not available as a defence to an intentional tort: Fontin v
Katapodis (1962) 108 CLR 177; Venning v Chin (1974) 10 SASR 299.
In Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153,
the plaintiff Carlton AFL supporter went to a game between Carlton and
North Melbourne. After the game, he went to the after-match room where
free food and drink were provided by the North Melbourne club, even though
he was not entitled to admission. Some time later, he was ejected from the
club by employees of the defendant, the North Melbourne Football Club
Social Club.
The plaintiff alleged that the employees had intentionally committed the
tort of battery by throwing him bodily from the club premises. The defendant
argued that the plaintiff had committed the tort of trespass by going into the
after-match room, and the tort of battery by striking the defendant’s
employees, and that this tortious conduct constituted ‘fault’ on the plaintiff’s
part for the purposes of the Victorian apportionment legislation. It was held
that the plaintiff’s trespass and battery would not have constituted ‘fault’ for
the purposes of the apportionment legislation, because the extended
definition applied to the defendant’s, but not the plaintiff’s, fault.
Brooking J stated (at 157–8):
But does contributory negligence operate to reduce damages in an action for battery? Trespass
to the person may be either intentional or negligent, and accordingly there can be a negligent
battery so far as the law of tort is concerned …
“Fault” is defined in s 25 of the Wrongs Act 1958 [(Vic)] as: “negligence breach of statutory duty
or other act or omission which gives rise to a liability in tort or would, apart from this Part, give
rise to the defence of contributory negligence”. …
In Winter v Bennett [1956] VLR 612 at 622, Herring CJ and Barry J treat the first limb of the
definition as concerned only with defendants. Whether or not this observation binds me, I am
content to adopt it, for it accords with my own view …
It follows that the defendant in the present case cannot rely on the torts of trespass to land and
battery committed by the plaintiff to found an apportionment and that apportionment is not
possible unless at common law the defendant to an action for battery could set up contributory
negligence.
6.61 In Queensland, s 5 of the Law Reform Act 1995 defines ‘wrong’, for
the purposes of contributory negligence, as an act or omission that gives rise
to liability in tort for which the defence of contributory negligence is available
under the common law. Therefore, the same argument would apply.
[page 127]
In Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR
644, the plaintiff solicitor employed a clerk who stole cheques belonging to
the plaintiff and persuaded the defendant to make payment on them. The
plaintiff sued the clerk and the defendant for conversion of the cheques. It
was alleged that the plaintiff had been contributorily negligent by continuing
to employ the clerk, even after he knew that he was dishonestly appropriating
the plaintiff’s funds. Samuels J held that, as contributory negligence had not
been a defence to an action in conversion at common law, it could not give
rise to apportionment under the legislation.
In Venning v Chin (1974) 10 SASR 299 at 317, Bray CJ held:
It is clear that contributory negligence could never be a defence to an intentional tort, or
perhaps it would be preferable to say to the intentional consequences of a tort.
6.62 Therefore, it may be open to argue contributory negligence in respect
of damages claimed for the unintentional consequences of the tort. In New
South Wales v Riley (2003) 576 NSWLR 496, the respondent established that
police officers had assaulted and falsely imprisoned him as well as trespassed
on his land. The respondent had fractured his wrist while being transported
and falsely imprisoned in the back of a police van. The Court of Appeal found
that the fracture was a foreseeable consequence of the false imprisonment
which was the intentional wrongdoing: at [102]. However, the court held that
the fracture itself was not inflicted intentionally and was, in fact, an indirect
consequence of the false imprisonment: at [105]. Hodgson JA stated (at
[107]):
I am inclined to the view that, once some direct interference is established so that an action for
trespass does lie, even indirect consequences of that interference can be compensated in the
action for trespass (although such action would not lie at all if there was no direct interference
but only indirect consequences). However, where there are indirect and intentional
consequences of the trespass, I think the better view is that the defence of contributory
negligence is available in respect of those unintended consequences.
6.63 In relation to interferences with personal property, it has been argued
that the plaintiff’s contributory negligence in failing to take reasonable care
for the safety of the goods should permit a reduction of damages as a partial
defence under apportionment legislation.3 However desirable that may be,
the defence is not supported by any clear authority under the common law.
There is, however, authority to the contrary: Farquharson Bros & Co v C King
& Co [1902] AC 325; Day v Bank of New South Wales (1978) 18 SASR 163; 19
ALR 321; Australian Guarantee Corporation Ltd v State Bank of Victoria
Commissioners [1989] VR 617.
[page 128]
17
Mistake, Insanity and Involuntarism
Mistake
6.64 Mistake is not a defence in cases of direct interference to persons or
property. This is because the motive of the defendant is irrelevant in
determining whether the defendant has committed an intentional act or acted
without due care. Mistake arises where the actual conduct was intended
under the erroneous notion that the conduct would not violate another’s
right. For example:
an auctioneer innocently selling goods under the mistaken belief that
the person who delivered the goods for auction had title, is liable in
conversion (Consolidated Co v Curtis & Son [1892] 1 QB 495); or
a rail authority seizing plant and materials in the mistaken belief that it
had the right to seize them, is liable in detinue (Egan v State Transport
Authority (1982) 31 SASR 481); or
a prison authority not releasing a prisoner on the correct release date
in the mistaken belief that the prisoner is not due for release, is liable in
false imprisonment: Cowell v Corrective Services Commission of New
South Wales (1988) 13 NSWLR 714; R v Brockhill Prison; Ex parte
Evans (No 2) [2000] 4 All ER 15.
Insanity and Involuntarism
6.65 In Weaver v Ward (1617) Hob 134; 80 ER 284, it was stated that ‘if a
lunatic hurt a man, he shall be answerable in trespass’ and, therefore, ‘no man
shall be excused of a trespass … except it be judged utterly without his fault’.
Insanity is not in itself a defence to trespass, but because liability for trespass
may depend increasingly upon proof of intention, it may be difficult to show
that such an element existed in a mentally ill person. In Morris v Marsden
[1952] 1 All ER 925, the defendant violently attacked the plaintiff in the
hallway of a hotel. The defendant was a certified lunatic at the time who was
aware of the quality of his acts but did not know they were wrong. The
defence failed because the defendant was capable of forming the necessary
intention. A mentally ill person will be liable for assault if the nature and
quality of the act was known, even though it was not known that it was
morally wrong: Morris v Marsden; Carrier v Bonham [2002] 1 Qd R 474.
6.66
If the mental state is such as to render the defendant’s acts
involuntary, then this may be a good defence, since a party will not normally
be held responsible for involuntary acts unless personally responsible for
causing their onset, for example through negligent failure to take necessary
medication: Roberts v Ramsbottom [1980] 1 All ER 7.
18
Ex Turpi Causa Oritur Non Actio
6.67 The maxim ex turpi causa oritur non actio (no right of action arises
from a base cause) embodies a rule of public policy excluding the benefits of
the law to persons who have engaged in some base or illegal act. For example,
a person seeking to sue in detinue or conversion who has obtained possession
pursuant to an illegal contract will be denied a right of action: Thomas Brown
& Sons Ltd v Fazal Deen (1962) 108 CLR 391.
[page 129]
Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 6.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 13.
S Yeo, ‘Determining Consent in Body Contact Sports’ (1998) 6 TLJ
199.
1.
In Queensland, due to the application of s 245 of the Criminal Code to civil actions of battery and
assault, lack of consent is an element to be proven by the plaintiff: see 3.42.
2.
For a discussion of discipline in schools, see D Butler and B Mathews, Schools and the Law, The
Federation Press, Sydney, 2007, Ch 4.
3.
J Goldring, ‘The Negligence of the Plaintiff in Conversion’ (1977) 11 MULR 91.
[page 131]
Chapter 7
Intentional Damage to a Person
1
Introduction
7.1 The torts that encompass trespass to the person provide protection of a
person’s bodily integrity: see Chapter 3. However, not all interferences to a
person fall within one of these nominate torts, for example if the interference
is intentional but not necessarily direct or the interference does not fall within
a recognised trespass. Trespass to the person is not the only tortious action
available to a plaintiff for intentional interferences. Other possible actions in
tort that may impose liability upon a person include:
the intentional infliction of psychiatric injury, commonly referred to as
the Wilkinson v Downton tort;
malicious prosecution; and
privacy.
2
Intentional Infliction of Psychiatric
Injury
7.2 Intentional infliction of psychiatric injury is one of the innominate
torts in Australia: see 2.25. This innominate tort was first recognised in
England in the decision of Wilkinson v Downton [1897] 2 QB 57, in which the
defendant informed the plaintiff that her husband had been injured, causing
her to suffer shock leading to physical illness. The act was done with the
intention of causing nervous shock. See also Janvier v Sweeney [1919] 2 KB
316; Johnson v Commonwealth (1927) 27 SR (NSW) 133 (husband beaten in
front of wife before being taken away); Purdy v Woznesensky [1937] 2 WWR
116.
7.3 In 1937, the High Court of Australia in Bunyan v Jordan (1937) 57 CLR
1 restricted the principle to situations where the conduct is actually directed
to the person injured with the intention of causing harm. In other
jurisdictions there have been cases where the plaintiff was neither the
immediate recipient of the harmful words nor a witness of physical harm
being inflicted upon another. See, for example, Bielitski v Obadiak (1922) 65
DLR 627 (words relayed to the plaintiff through a series of intermediaries);
Stevenson v Basham [1922] NZLR 225 (plaintiff overheard husband being
threatened by landlord). However, in Carter v Walker (2010) Aust Torts
Reports ¶82-076 at [264], it was noted that such cases
[page 132]
were ‘exceptional’ and ‘cases in which the person affected was within a group
with whom the defendant had intended to communicate’.
7.4 The act complained of must be one which the defendant could foresee
would cause harm of the particular type to a normal person, unless there was
special reason to know of the delicate constitution of the plaintiff.
For the facts to fit within the tort, mere fright is insufficient; the shock
must be manifested in objective physical or psychopathological consequences.
In Giller v Procopets (2008) 24 VR 1, it was emphasised that to establish the
tort of intentional infliction of harm, the plaintiff must suffer a recognised
psychiatric illness. In this case it was argued that the intentional infliction of
mental distress was compensable. A majority of the Court of Appeal
disagreed. Neave JA stated (at [473]):
It must be conceded that the law of torts operates inconsistently by providing compensation for
intentional infliction of purely mental distress in torts such as defamation and false
imprisonment, but not in the case of the tort of intentionally causing harm. However, the
expansion of the Wilkinson principle to cover mental distress would also create inconsistencies.
Over the past decade, legislatures across Australia have imposed limits on the availability and
amount of damages recoverable in negligence for physical injury. It would seem anomalous to
expand the possibility of recovering damages for hurt feelings, even when intentionally caused,
at a time when recovery of damages for non-economic loss arising out of physical injury has
become increasingly limited.
7.5 In Northern Territory v Mengel (1995) 185 CLR 307 at 347, the majority
of the High Court held that the phrase ‘the intentional infliction of harm’
included:
… acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton
[1897] 2 QB 57, or which are done with reckless indifference as to the harm that is likely to
ensue, as in the case where a person, having recklessly ignored the means of ascertaining the
existence of a contract, acts in a way that procures its breach.
In Wong v Parkside Health NHS Trust [2003] 3 All ER 932 at 938, Hale LJ
stated:
For the tort to be committed, as with any other action on the case, there has to be actual damage.
The damage is physical harm or recognised psychiatric illness. The defendant must have
intended to violate the claimant’s interest in his freedom from such harm. The conduct
complained of has to be such that that degree of harm is sufficiently likely to result that the
defendant cannot be heard to say that he did not “mean” it to do so. He is taken to have meant it
to do so by the combination of the likelihood of such harm being suffered as the result of his
behaviour and his deliberately engaging in that behaviour.
See also Rhodes v OPO [2015] UKSC 32, where it was held that there must
be an actual intention to cause distress to the plaintiff (claim that the
publication of an autobiography by the father of the respondent would cause
severe emotional distress and psychological harm to the child respondent).
7.6 In Carrier v Bonham [2002] 1 Qd R 474, the plaintiff sued in negligence
and under the rule in Wilkinson v Downton for damages for the psychiatric
illness caused by the defendant when, in an attempted suicide, he deliberately
stepped in front of the bus that the plaintiff
[page 133]
was driving. McPherson JA, with whom Moynihan J agreed, suggested that
the innominate tort based on the decision in Wilkinson v Downton could be
absorbed into the tort of negligence. His Honour stated (at 484):
The feature that is often singled out as peculiar about Wilkinson v Downton is that it was an
intentional act which had reasonably foreseeable consequences that were apparently not in fact
foreseen by the defendant in all their severity; but that is, as R S Wright J pointed out in
Wilkinson v Downton, “commonly the case with all wrongs”. Most everyday acts of what we call
actionable negligence are in fact wholly or partly a product of intentional conduct. Driving a
motor vehicle at high speed through a residential area is an intentional act even if injuring
people or property on the way is not a result actually intended. Wilkinson v Downton is an
example of that kind. The defendant intended to speak the words in question to the plaintiff’s
wife. Even if he did not intend to inflict the harm on her that followed, or perhaps any harm at
all, he was plainly negligent as regards the result that followed. It is only when injury ensues
from inaction or omission to act that problems may still arise at common law about whether the
wrong is, properly speaking, the act or conduct of the defendant. … What matters is whether the
consequences of the conduct, whether foreseen or not, were reasonably foreseeable and are such
as should have been averted or avoided. What we really have now is not two distinct torts of
trespass and negligence, but a single tort of failing to use reasonable care to avoid damage
however caused. Negligence, if narrowly understood, is something of a misnomer.
However, whether this can be taken as actually subsuming the rule of
Wilkinson v Downton could be doubtful as the Court of Appeal did not need
to decide this issue on appeal. Further, decisions since Carrier v Bonham
continue to accept that a separate tort exists: see, for example, Giller v
Procopets (2008) 24 VR 1; Nationwide News Pty Ltd v Naidu (2008) 71
NSWLR 471; Magill v Magill (2006) at [20]; Clavel v Savage [2013] NSWSC
775.
7.7 The Wilkinson v Downton action for intentional infliction of distress
may be rarely used since its creation almost 100 years ago, but it continues to
be of interest as litigants marshal and test out groups of actions to cover
contemporary issues. For example, in Bradley v Wingnut Films Ltd [1993] 1
NZLR 415, a plaintiff sued for the shock and upset caused by the featuring of
the plaintiff’s family tombstone in a film that showed a lot of blood and body
parts.
7.8 As this is an intentional tort, the civil liability legislation will not apply,
removing the limits and threshold requirements in assessing damages for
personal injury; see, for example, Civil Liability Act 2002 (NSW) s 3B (Act
does not apply); Civil Liability Act 2003 (Qld) s 52(2)(a) (exemplary, punitive
or aggravated damages may be awarded); Civil Liability Act 1936 (SA) s 51
(Act does not apply); Civil Liability Act 2002 (Tas) s 3B (Act does not apply);
Civil Liability Act 2002 (WA) s 3A (Act does not apply).
3
Malicious Prosecution
7.9
The tort of malicious prosecution provides protection against
improper use of legal procedures. Malicious prosecution is often linked with
the trespass action of false
[page 134]
imprisonment as both involve restraint of liberty: see 3.46. The distinction
between the two torts is:
for false imprisonment, the restraint of liberty is directly imposed by
the defendant acting personally, or through an agent; and
for malicious prosecution, the restraint of liberty is indirectly imposed
as a result of the defendant supplying false information to an
independent party who then arrests the person.
In Nye v New South Wales (2004) Aust Torts Reports ¶81-725 at 65,264, it
was noted:
Wrongful arrest and false imprisonment and malicious prosecution all involve an abuse of
power. The former involve a deprivation of liberty, something which is regarded by the law as
serious. Malicious prosecution may or may not involve deprivation of liberty but it exposes the
person the subject of the prosecution to the possibility of injury to reputation and conviction for
a criminal offence. These consequences are also regarded by the law as serious.
7.10
It is arguable that should the Australian High Court abandon
directness in favour of intention in distinguishing trespass actions from
actions on the case, it may not draw the intentional tort of malicious
prosecution within the embrace of trespass, notwithstanding its intentional
nature and the logic of describing it as a trespass if intention is the criterion.
This is because of the long-established independence of the tort and its
elements and the very strong statements distinguishing malicious prosecution
from false imprisonment. The strength in history of the comparative
treatment may be sufficient to survive the rationalisation in any move to
intention.
7.11 In A v New South Wales (2007) 230 CLR 500; 233 ALR 584 at [1], the
High Court stated the elements of the action:
1.
that proceedings of the kind to which the tort applies (generally, as
in this case, criminal proceedings) were initiated against the
plaintiff by the defendant;
2.
that the proceedings terminated in favour of the plaintiff;
3.
that the defendant, in initiating or maintaining the proceedings
acted maliciously; and
4.
that the defendant acted without reasonable and probable cause.
As the tort of malicious prosecution is an action on the case, the plaintiff
must have suffered damage and bears the onus of proving the elements.
Proceedings Initiated Against the Plaintiff by the
Defendant
7.12 The defendant must be active in the prosecution of the plaintiff. The
plaintiff’s prosecution must have been counselled, procured or continued by
the defendant: Danby v Beardsley (1878) 43 LT 603; Commonwealth Life
Assurance Society Ltd v Brian (1935) 53 CLR 343.
7.13 A distinction is made between initiating a prosecution and providing
information which leads to the prosecution. If the defendant provides
information and prosecution of the plaintiff is the result, the prosecution is
regarded as having been commenced by the independent lawful authorities.
For example, in Evans v London Hospital and Medical College [1981] 1 All ER
715, a pathologist and toxicologists in a hospital’s forensic
[page 135]
medicine department gave results of a post-mortem to police, who charged
the plaintiff with murder. There was no malicious prosecution because the
police decided to prosecute quite independently of the information provided.
It is necessary that the defendant commit some positive conduct to maintain
the prosecution of the plaintiff, for example give false evidence to support the
prosecution: Sahade v Bischoff [2015] NSWCA 418 at [121]. See also New
South Wales v Landini [2010] NSWCA 157 at [52]–[59].
However, if the prosecutor is unduly influenced by the person providing
the information, that person may be regarded as the true instigator of the
prosecution. In Martin v Watson [1996] AC 74; [1995] 3 All ER 559, a woman
made a complaint to the police that her neighbour had indecently exposed
himself to her. She gave a witness statement and it was recorded that she was
willing to attend court and give evidence. The plaintiff was arrested but at
trial, no evidence was offered by the prosecution and the charge was
dismissed. The House of Lords held (at AC 86–7; All ER 567–8):
Where an individual falsely and maliciously gives a police officer information indicating that
some person is guilty of a criminal offence and states that he is willing to give evidence in court
of the matters in question, it is properly to be inferred that he desires and intends that the
person he names should be prosecuted. Where the circumstances are such that the facts relating
to the alleged offence can be within the knowledge only of the complainant, as was the position
here, then it becomes virtually impossible for the police officer to exercise any independent
discretion or judgment, and if a prosecution is instituted by the police officer the proper view of
the matter is that the prosecution has been procured by the complainant.
In Mahon v Rahn (No 2) [2000] 1 WLR 2150, a distinction was made
between a simple scenario where a complaint is made to the police, and cases
where evidence is provided from a variety of sources and the police must
exercise a discretion as to whether there is sufficient evidence against the
plaintiff. In a simple case, Brooke LJ thought the following questions needed
to be determined (at [269]):
(1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly
within A’s knowledge that it was virtually impossible for the professional prosecutor to exercise
any independent discretion or judgment? (3) Has A procured the institution of proceedings by
the professional prosecutor, either by furnishing information which he knew to be false, or by
withholding information which he knew to be true, or both?
See also Cumberland v Clark (1996) 39 NSWLR 514 and A v New South
Wales (2007) 230 CLR 500; 233 ALR 584 (involving a public prosecution, not
private).
7.14 Although the tort of malicious prosecution is commonly raised in
regards to criminal prosecutions, the prosecution may include bankruptcy
and winding-up petitions. Traditionally, it has not included civil proceedings,
although this has been questioned: Little v Law Institute of Victoria [1990] VR
257; Lloyd v Fanning (VSC, McDonald J, 4 November 1996, unreported).
Proceedings Terminated in Favour of Plaintiff
7.15
The plaintiff must prove that the prosecution against them was
terminated in their favour. If the proceedings are such that termination in the
plaintiff’s favour is not possible,
[page 136]
for example where the Attorney-General refuses to issue an indictment (nolle
prosequi), an exception is made: Commonwealth Life Assurance Society Ltd v
Smith (1938) 59 CLR 527 at 542. See also Beckett v New South Wales (2013)
248 CLR 432; 297 ALR 206, where the High Court held that a termination of
the prosecution by the Director of Public Prosecutions under a statutory
power could not be distinguished from a termination of the prosecution by
the entry of a nolle prosequi by the Attorney-General. The High Court also
held that when the proceedings are terminated by a nolle prosequi, there is no
need for the plaintiff to prove their innocence in the civil action, overruling
the exception from the decision of Davis v Gell (1924) 35 CLR 275; 31 ALR
49.
If the plaintiff was convicted, this element will fail even if only a bond is
imposed: Everett v Ribbands [1952] 2 QB 198. Similarly, if the plaintiff is
pardoned, this is not termination of the proceedings in the plaintiff’s favour:
Re Royal Commission on Thomas Case [1982] 1 NZLR 252.
Malice
7.16 Malice on the part of the defendant must be established. Malice
means the defendant having any improper motive which may include, but is
not limited to, ill will: Brown v Hawkes [1891] 2 QB 718. In A v New South
Wales (2007) 230 CLR 500; 233 ALR 584 at [91], the High Court stated:
What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a
purpose other than the proper invocation of the criminal law — an “illegitimate or oblique
motive” (Gibbs v Rea [1998] AC 786 at 804). That improper purpose must be the sole or
dominant purpose actuating the prosecutor (Troridge v Hardy (1955) 94 CLR 147 at 162; [1956]
ALR 15 at 24 per Kitto J; cf Williams v Spautz (1992) 174 CLR 509 at 529; 107 ALR 635 at 648–9
per Mason CJ).
Absence of Reasonable and Probable Cause
7.17 This element involves both an objective and subjective assessment.
There must be reasonable grounds for the institution of the proceedings
against the plaintiff, and the defendant must have had an honest belief in the
propriety of initiating the prosecution: A v New South Wales (2007) 230 CLR
500; 233 ALR 584; Noye v Robbins [2010] WASCA 83 at [116]. This is
assessed on the evidence available at the time the prosecution was
commenced or maintained: A v New South Wales at [59]. However, it is not
necessary that the plaintiff establish their innocence: Commonwealth Life
Assurance Society Ltd v Smith (1938) 59 CLR 527 at 542; Beckett v New South
Wales (2013) 248 CLR 432; 297 ALR 206 at [2].
In A v New South Wales (2007) 230 CLR 500; 233 ALR 584, the appellant
had been acquitted of charges of homosexual intercourse, contrary to s 78H
of the Crimes Act 1900 (NSW). The second respondent, a police officer, was
the informant for the charges. The High Court had to consider whether there
was reasonable and probable cause for the charges against the appellant. It
was noted by the court that the second appellant was performing a public
duty and his conduct was being overseen by other authorities. However, the
court stated (at [38]):
[page 137]
[J]ustice requires that the prosecutor, the person who effectively sets criminal proceedings in
motion, accept the form of responsibility, or accountability, imposed by the tort of malicious
prosecution. In so far as one element of the tort concerns reasonable and probable cause, the
question is not abstract or purely objective. The question is whether the prosecutor had
reasonable and probable cause to do what he did; not whether, regardless of the prosecutor’s
knowledge or belief, there was reasonable and probable cause for a charge to be laid. The
question involves both an objective and a subjective aspect.
Further, the court stated (at [80]):
In cases where the prosecutor acted on material provided by third parties, a relevant question in
an action for malicious prosecution will be whether the prosecutor is shown not to have
honestly concluded that the material was such as to warrant setting the processes of the criminal
law in motion. … In deciding the subjective question, the various checks and balances for which
the processes of the criminal law provide are important. In particular, if the prosecutor was
shown to be of the view that the charge would likely fail at committal, or would likely be
abandoned by the Director of Public Prosecutions, if or when that officer became involved in
the prosecution, absence of reasonable and probable cause would be demonstrated. But unless
the prosecutor is shown either not to have honestly formed the view that there was a proper case
for prosecution, or to have formed that view on an insufficient basis, the element of absence of
reasonable and probable cause is not established.
Damage
7.18 Damage suffered by the plaintiff is essential because the tort is an
action on the case. The damage must be the result of the malicious
prosecution: New South Wales v Landini [2010] NSWCA 157. However,
damage for malicious prosecution is restricted to:
damage to the person (for example, restraint to liberty);
damage to property (for example, economic loss); and
damage to reputation.
See Berry v British Transport Commission [1962] 1 QB 306.
Costs related to the proceedings are not considered to be damage for the
purposes of the action, unless they relate to the defence of a criminal charge:
Berry v British Transport Commission. In Flower & Hart (a firm) v White
Industries (Qld) Pty Ltd (2001) 109 FCR 280 at [34], it was explained that the
difference in the taxed costs of the proceedings and the actual costs incurred
could not be claimed as:
Where the entitlement to costs has been determined in proceedings, the issue ought not be reventilated in the guise of an action for malicious prosecution.
Remedy
7.19 A plaintiff who establishes the tort of malicious prosecution may be
awarded compensatory damages for the loss resulting from the malicious
prosecution, as well as aggravated and/or exemplary damages: see Chapter
15. It may be possible to be granted injunctive relief if there is evidence of a
continuing threat of malicious prosecution: see National Australia Bank v
McFarlane (2005) Aust Torts Reports ¶81-819.
[page 138]
4
Privacy
7.20 Concerns as to how the law may protect the privacy of an individual
continue to be high priority in Australia. In light of developing technologies,
for example, the increasing use of remotely piloted aircraft (drones), the
potential to infringe upon a person’s seclusion is ever increasing.1
7.21 In 2014, the Australian Law Reform Commission (ALRC) released its
final report on privacy, Serious Invasions of Privacy in the Digital Era.2 The
report set out nine principles recommended to guide the development of a
policy framework for reform of the law of privacy. It recommended that a
new piece of legislation be enacted that creates a statutory cause of action for
serious invasions of privacy and that the cause of action be a tort:
recommendation 4 (pp 59–72). It is interesting to note that a previous report
in 1983 also proposed the enactment of legislation to protect privacy, but did
not result in any protection for intrusion into a person’s seclusion.3
7.22 Although there is no common law tort of privacy that has been
recognised by an appellate court in Australia, there are various rights that
may be enforced that may have the effect of protecting a plaintiff’s privacy.
For example, there is protection against being harassed and recorded through
various actions (such as trespass and nuisance) as well as legislation
controlling the use of surveillance devices.
In Bernstein v Skyviews & General Ltd [1978] QB 479, the plaintiff’s real
concern was that any photograph taken of his stately home could fall into
criminal hands; by suing for trespass to land, he sought to protect his privacy.
The court held that there was no trespass at the height the aeroplane passed
over the property and there was no right in law to be protected from such
invasions of privacy. Another example is Emcorp Pty Ltd v Australian
Broadcasting Corporation [1988] 2 Qd R 169, where an injunction was
granted to restrain the defendant from broadcasting any of the film videoed at
the plaintiff’s office while the defendant was trespassing.
Development of a Tort of Privacy under the
Common Law
7.23 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937)
58 CLR 479 is often cited as authority for the proposition that a cause of
action for breach of privacy does not exist in Australia. However, in Church of
Scientology v Woodward (1982) 154 CLR 25 at 68; 43 ALR 587 at 609, Murphy
J observed that ‘unjustified invasion of privacy’ was one of the ‘developing
torts’.
In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor, the
plaintiff claimed an injunction to restrain broadcasting of descriptions of
races which were run on its land but called from a platform erected on
adjoining land. The court was faced with the question
[page 139]
‘How far can one person restrain another from invading the privacy of land
which he or she occupies, when such invasion does not involve actual entry
on the land?’ A majority of the High Court held there was no legal right in the
plaintiff not to be overlooked and, therefore, there was no protection.
However, under statute, there was no unfettered right to broadcast
commercially and the particular broadcasts were subsequently controlled
under the regulatory provisions of the broadcasting legislation.
7.24 The first steps towards the recognition of a possible tort of invasion of
privacy under the common law can be found in the decision of the High
Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd
(2001) 208 CLR 199; 185 ALR 1. The respondent operated a fully licensed
abattoir facility where brushtail possums were stunned, slaughtered and
prepared for export to Asian countries. Unknown persons trespassed onto the
property and set up video cameras which were later retrieved by another act
of trespass. A video of the possums being stunned and slaughtered was
offered to the appellant for broadcast on television. The respondent sought an
interlocutory injunction to prevent the broadcast, claiming that the footage
would impact on the company’s goodwill and cause financial harm. It was
claimed that to broadcast the video would be an invasion of the respondent’s
privacy.
The High Court held that the decision of Victoria Park Racing and
Recreation Grounds Co Ltd v Taylor did not stand in the way of the
development of an enforceable right of privacy: at [107] per Gummow and
Hayne JJ. However, the fact that the respondent was a corporation went
against the respondent. The High Court referred to the law of privacy in the
United States where the law does not extend protection to corporations as
‘[t]he tort of invasion of privacy focuses on the humiliation and intimate
personal distress suffered by an individual as a result of intrusive behaviour’:
NOC Inc v Schaefer 484 A 2d 729 (1984) at 730–1, cited in Australian
Broadcasting Corporation v Lenah Game Meats Pty Ltd at [127].
7.25 Since Australian Broadcasting Corporation v Lenah Game Meats Pty
Ltd, the Queensland District Court, in Grosse v Purvis (2003) Aust Torts
Reports ¶81-706, took the ‘bold step’ of being the first court in Australia to
hold that a civil action for damages based on an individual’s right to privacy
exists. Senior Judge Skoien considered that the High Court decision of
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd removed
the barrier said to prevent the finding of such a right. In recognising the tort
of invasion of privacy, his Honour (at [444]) considered that the essential
elements were:
(a) a willed act by the defendant,
(b) which intrudes upon the privacy or seclusion of the plaintiff,
(c) in a manner which would be considered highly offensive by a reasonable person of
ordinary sensibilities,
(d) and which causes the plaintiff detriment in the form of mental, psychological or emotional
harm or distress or which prevents or hinders the plaintiff from doing an act which he or
she is lawfully entitled to do.
It was noted that the defence of public interest could be available to an
action of invasion of privacy, but not in the case before the court. Damages
for the invasion of privacy were assessed at $108,000. A total of $178,000 was
awarded, including aggravated and exemplary damages. The defendant
lodged an appeal but the matter was settled before being heard.
[page 140]
7.26 The decision of Grosse v Purvis is a decision of a district court, and no
superior court in Australia has yet confirmed the tort, though some have
noted the possibility of the tort: see Maynes v Casey [2011] NSWCA 156 at
[36] (‘case therefore provides an inappropriate vehicle to consider any
possible developments of the law with respect to intentional invasion of
privacy’); Giller v Procopets (2008) 24 VR 1 at [167] (‘The existence of a
generalised tort of unjustified invasion of privacy has not been recognised by
any superior court of record in Australia. The development of such a tort
would require resolution of substantial definitional problems’); Sands v South
Australia [2013] SASC 44 at [614] (‘the ratio decidendi of the decision in
Lenah is that it would require a further development in the law to
acknowledge the existence of a tort of privacy in Australia’).
7.27 Grosse v Purvis was considered in Doe v Australian Broadcasting
Corporation [2007] VCC 281. In that case, the plaintiff had been attacked and
raped by her estranged husband who was charged and later imprisoned for
the crimes. On the day his sentence was handed down, the Australian
Broadcasting Corporation (ABC) broadcast news reports of the sentencing
and identified the plaintiff and her estranged husband by name. The
publication of information, identifying a victim of a sexual offence, was a
breach of s 4 of the Judicial Proceedings Reports Act 1959 (Vic). The plaintiff
sought damages for breach of a statutory duty, negligence, breach of privacy
and equitable compensation for breach of confidence. Hampel J stated that
she also accepted the invitation of the High Court to take the next step, an
incremental one, to develop ‘the recognition of the right to protection against,
or provide remedy for, breach of privacy’: at [162]. The information
published by the ABC was sufficiently personal or confidential, the plaintiff
having a reasonable expectation that the information would remain private.
Publication was also unjustified, there being no public interest in the
publication: at [163]. Damages were awarded for the plaintiff’s post-traumatic
stress disorder caused by the publication and special damages for her past loss
of earnings.
Law Reform
7.28
As noted previously (see 7.21), the ALRC had recommended a
statutory tort of privacy be created: ALRC Report No. 123 (2014). The
Commission recognised that the current law left many gaps or uncertainties
in providing protection against invasion of privacy. For example, a defendant
whose actions infringe a plaintiff’s privacy, and are done with the intention to
cause emotional stress, are not actionable unless the plaintiff suffers a
psychiatric illness: Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 417.
Also, when personal information has been disclosed, emotional distress may
not be considered sufficient to found an action in breach of confidence: see
the discussion in ALRC Report No. 123 (2014) at [3.50].
7.29
The recommendation is ‘that if a statutory cause of action is
introduced, it should be in Commonwealth legislation, as this is the best way
to ensure the action is available and consistent throughout Australia’: ALRC
Report No. 123 (2014) at [4.6]. The proposed statutory action would not be
part of the Privacy Act 1988 (Cth) as that piece of legislation
[page 141]
is concerned with the regulation of data protection, whereas the proposed tort
of privacy will apply to more than just privacy of information: at [4.9].
7.30 The report recommends that the new tort encompass two types of
interferences:
physical intrusion into the plaintiff’s private space or intrusion by
watching, listening to or recording the plaintiff’s private activities or
affairs; and
misuse of private information, for example through the disclosure or
collection of private information about the plaintiff.
The tort would only apply in circumstances where there is a reasonable
expectation of privacy and when the intrusion is intentional or reckless. The
tort is to be proven only if the invasion of privacy is regarded as serious;
however, the plaintiff does not have to prove damage, overcoming the
difficulties when the consequence of the invasion is emotional stress: see
recommendations 5–8 at pp 9–10.
Other Jurisdictions
7.31 Actions for invasion of privacy have developed in different ways in
New Zealand, the United Kingdom, Canada and the United States. In New
Zealand, a tort of invasion of privacy has been recognised. In Hosking v
Runting [2005] 1 NZLR 1 at [117], it was held that the publication of facts of
the plaintiff’s life could be regarded as ‘highly offensive to an objective
reasonable person’ and was actionable as the tort of invasion of privacy. See
also C v Holland [2012] 3 NZLR 672, where the court held that the tort of
privacy recognised in Hosking v Runting should be extended to include
intentional intrusions upon a plaintiff’s seclusion. In that case, the defendant
had secretly videoed the plaintiff in the shower, intentionally intruding into
her personal space and activity without consent, infringing her reasonable
expectation of privacy and this was considered to be highly offensive to a
reasonable person.
In the United Kingdom, existing actions are being extended to provide
protection in light of the Human Rights Act 1998 (UK), in particular the
action of breach of confidence. In Douglas v Hello! Ltd (No 3) [2008] 1 AC 1;
[2007] 4 All ER 545 at [118], Lord Hoffman stated:
In recent years, English law has adapted the action for breach of confidence to provide a remedy
for the unauthorised disclosure of personal information.
In that case the plaintiffs (Douglas) had contracted with a publisher of a
magazine to provide the exclusive rights to photographs of their wedding. An
unknown person at the wedding took unauthorised photographs which the
publisher of Hello! magazine intended to publish. The plaintiffs sought an
injunction to restrain the publication of the photographs. See also Campbell v
MGN Ltd [2004] 2 All ER 995.
In Canada, some provinces have enacted a statutory tort for invasion of
privacy and in Ontario a common law action was recognised in the decision
of Jones v Tsige (2012) ONCA 32. In the United States, the tort of privacy is
well established, contained in the American Law Institute, Restatement of the
Law Second, Torts (1977) § 652A.
[page 142]
Further Reading
Australian Law Reform Commission, Serious Invasions of Privacy in
the Digital Era, Report No 123, Australian Government, Sydney, 2014.
A Gray, ‘Wilkinson v Downton: New Work for an Old Tort to do?’
(2015) 23 Tort L Rev 127.
P Handford, ‘Intentional Negligence: A Contradiction in Terms?’
(2010) 32 Sydney Law Review 32.
P Watson, ‘Searching the Overfull and Cluttered Shelves: Wilkinson v
Downton Rediscovered’ (2004) 23 U Tas LR 264.
N Witzleb, ‘A Statutory Cause of Action for Privacy? A Critical
Appraisal of Three Recent Australian Law Reform Proposals’ (2011) 19
TLJ 104.
1.
See Parliament of Australia, House of Representatives Standing Committee on Social Policy and
Legal Affairs, Eyes in the Sky: Inquiry into Drones and the Regulation of Air Safety and Privacy,
Commonwealth of Australia, Canberra, 2014, Ch 4.
2.
ALRC, Serious Invasions of Privacy in the Digital Era, Report No. 123 (2014).
3.
See ALRC, Privacy, Report No. 22 (1983).
[page 143]
CHAPTER 8
The Negligence Action
1
Introduction
8.1
The tort of negligence has presented a unique challenge for the
common law. It differs from the other torts because the scope of the
protection it affords is not limited by either the interest which it protects or
the particular type of harm it protects against. In comparison, a trespass to
land action is only available where a person’s interest in the possession of land
has been directly challenged, and a defamation action where a person’s
reputation has been impugned. It is because of the all-embracing potential of
the negligence action that there is a need for devices, controlled by the courts,
to limit liability in negligence. Nevertheless, the prominence of the negligence
action today, with its tendency to absorb or eclipse other forms of action, has
led to it being described as ‘that most open-textured and therefore voracious’
of torts.1
8.2
To the person in the street, negligence means no more than
carelessness, but the concept is more complex in law. Negligence, as a legal
concept, is not the same as carelessness because it may consist of advertent as
well as inadvertent acts and omissions.
8.3 The distinguishing feature of the negligence action is that it refers to
conduct which objectively falls short of that required by society. In Tame v
New South Wales (2002) 211 CLR 317; 191 ALR 499 at [8], Gleeson CJ noted:
… in the context of the law of negligence, carelessness involves a failure to conform to a legal
obligation. It does not necessarily involve a mistake. It involves a failure to protect the interests
of someone with whose interests a defendant ought to be concerned.
The tort is, therefore, not concerned with what the defendant knew, did or
did not do, but what the ‘reasonable person’ in the defendant’s position
would have known or done.
2
The Structure of a Negligence Action
8.4 For the purposes of legal analysis, the negligence action consists of
three elements:
the existence of a duty of care owed by the defendant to the plaintiff;
[page 144]
a breach by the defendant of the standard of care appropriate to that
duty of care; and
damage to the plaintiff caused by the defendant’s breach of the duty,
provided the damage is within the defendant’s scope of liability
(remoteness in law).
8.5 Despite the apparent simplicity of the division of the tort into these
three elements, it must be acknowledged that the distinctions are not always
easy to apply in practice. As Mason P commented in Harriton v Stephens
(2004) 59 NSWLR 694 at [65]–[68], when discussing the contentious issue of
whether disabled children had an action against the doctors whose negligence
deprived the plaintiffs’ parents of the opportunity to terminate the pregnancy:
Any survey of case law and legal commentary in this field shows that discussion is bedevilled by
different views as to the legal concepts that are engaged.
Some authorities speak in terms of strict logic, viewing the outcome as an inexorable
consequence of applying ostensibly neutral and universal principles of tort law, causation and
compensatory damages. Others recognize the influence of policy.
Some see the issue in terms of causation, others in terms of recoverable damages, others in terms
of identifying the proper plaintiff to recover the damages. Many authorities talk in terms of a
duty of care, although closer examination of this group discloses that some deny duty because of
fundamental problems in assessing damages and/or problems in describing the nature of the
injury inflicted.
Labelling sometimes causes its own problems. These may include suggesting distinctions that do
not exist and eliding those that do.
8.6 Often the parties to the action themselves argue their case in such a
way as to make it difficult to separate out the elements of the action. In Cole v
South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207
ALR 52 at [57], Gummow and Hayne JJ commented that the ‘present
litigation was pleaded and conducted in such a fashion as to conflate asserted
duty and breach of that duty and to make it inappropriate to decide on this
appeal any issue respecting the existence or content of a duty of care’. See also
the High Court decision in Cattanach v Melchior (2003) 215 CLR 1; 199 ALR
131, where the terms of the grant of special leave to appeal restricted the issue
of whether the costs of raising a healthy child, born as a result of the
defendant doctor’s negligence, was recoverable as a head of damages and
allowed no consideration of whether a duty of care was owed in respect to
that kind of damage.
Reasonable Foreseeability
8.7 The situation is complicated by the fact that reasonable foreseeability
has found a role within each of the elements of duty, breach and damage:
a duty is only owed to persons whom it is reasonably foreseeable will
suffer damage by a lack of due care on the part of the defendant;
the standard of care and the defendant’s breach of that standard are
judged against conduct which is reasonable in the context of the
foreseeable risk; and
compensation will flow only for damage which is a reasonably
foreseeable consequence of the defendant’s negligence.
[page 145]
8.8 However, although reasonable foreseeability arises at three distinct
stages in a negligence action, each element progressively requires a less
abstract and more particular examination of the concept as applied to the
facts of a case. As Glass JA commented in Minister Administering the
Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd
[1983] 2 NSWLR 268 at 295, ‘a recognition has emerged that the
foreseeability inquiry at the duty, breach and remoteness stages raises
different issues which progressively decline from the general to the
particular’. His Honour’s comments may be diagrammatically expressed as
follows:
3
Overview of the Elements of the
Negligence Action
Duty of Care
8.9 Until 1883, the element of duty of care was not significant in the
negligence action. A common law duty in negligence only existed where the
law already recognised a special relationship between the parties involving
duties and obligations at common law. Certain relationships still today give
rise to a recognised duty of care. For example, the law recognises that a doctor
owes a duty of care to a patient (Roe v Minister of Health [1954] 2 QB 66) and
that a student will be owed a duty of care by the school authority:
Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577. The
recognised duties of care, often referred to as the ‘established duties’, are
considered in Chapter 9.
8.10 In Heaven v Pender (1883) 11 QBD 503, Brett MR attempted to
provide a general test for duty of care that could be applied to relationships
falling outside of recognised precedent. His Lordship held that when a person
was in circumstances in which they should recognise that the failure to
exercise care and skill would give rise to risk of injury to another, there was a
duty to exercise that care and skill. However, this general test was not adopted
and it was not until the House of Lords’ decision in Donoghue v Stevenson
[1932] AC 562, that a more general test for duty became established law. As
Kirby J commented in Leichhardt Municipal Council v Montgomery (2007)
230 CLR 22; 233 ALR 200 at [99]:
Before Donoghue v Stevenson, that is basically the way in which tort liability, when framed in
negligence, was determined. To discover whether liability existed at law, it was necessary to look
for a case on the given relationship (or judicial authority bearing some similarity).
[page 146]
8.11 The facts of Donoghue v Stevenson [1932] AC 562 were that the
plaintiff and a friend went to a café and the friend bought a bottle of ginger
beer which was manufactured by the defendant. The owner of the café poured
some of the ginger beer into a glass from which the plaintiff drank. When the
last portion of the beer was poured, the remains of a decomposed snail fell
from the bottle. The plaintiff suffered shock at the sight of the snail as well as
gastroenteritis from consuming the contaminated ginger beer. The plaintiff
alleged that the defendant had caused her illness and shock by failing to take
reasonable care in the manufacture of its product. The defendant denied
liability, arguing that the law did not recognise the relationship of
manufacturer and consumer as one giving rise to a duty of care. A majority of
three to two in the House of Lords held that a duty of care was owed even
though the relationship was not a specific one that gave rise to a duty. A
general test for duty of care was established, Lord Atkin’s judgment being the
most famous and most often quoted.
The original and inductive reasoning of Lord Atkin in Donoghue v
Stevenson was an attempt to bring the recognised ‘special relationships’
within a single formula and to provide a unified general principle by which
duty of care cases could be determined in the future. His Lordship therefore
argued (at 580) that:
… in English law there must be, and is, some general conception of relations giving rise to a
duty of care, of which the particular cases found in the books are but instances. The liability for
negligence, … is no doubt based upon a general public sentiment of moral wrongdoing for
which the offender must pay. But acts or omissions which any moral code would censure cannot
in a practical world be treated so as to give a right to every person injured by them to demand
relief. In this way rules of law arise which limit the range of complainants and the extent of their
remedy. The rule that you are to love your neighbour becomes in law, you must not injure your
neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You
must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be —
persons who are so closely and directly affected by my act that I ought reasonably to have them
in contemplation as being so affected when I am directing my mind to the acts or omissions
which are called in question.
In Australia, the first High Court decision to apply the Lord Atkin formula,
referred to as the ‘neighbour’ principle, was Grant v Australian Knitting Mills
Ltd [1936] AC 85, which involved the plaintiff doctor contracting dermatitis
from sulphur found in a pair of new underpants which had been
manufactured by the defendant and which the plaintiff had not washed before
wearing.
8.12
However, the ‘neighbour’ principle is deceptively simple. It may
identify when a duty may be owed, but it does not determine the nature or
scope of the duty of care. Also, as the test is based upon reasonable
foreseeability, its application may have very wide effect as a simple act of
negligence may expose a defendant to indeterminate liability in terms of time,
damages and number of plaintiffs. To overcome these issues, which arise
when the loss suffered is not physical or a consequence of the physical
damage, attempts have been made to qualify the ‘neighbour’ principle.
8.13 The High Court of Australia has over the years adopted a variety of
approaches to this issue, but as McHugh J stated in Woolcock Street
Investments Pty Ltd v CDG Pty
[page 147]
Ltd (2004) 216 CLR 515; 205 ALR 522 at [45], ‘confusion approaching chaos
has reigned in the law of negligence’. The approach of the High Court to
relationships not within the classes of recognised duties of care, referred to as
‘novel cases’, are discussed in Chapter 10.
Breach of Duty
8.14 The concept of breach in the negligence action is concerned with
whether the defendant achieved the standard of care as required by the law.
The breach element requires that the risk be foreseeable and considers what a
reasonable person would do in response to that risk (calculus of negligence):
Wyong Shire Council v Shirt (1980) 146 CLR 40. The calculus of negligence
involves a consideration of many factors, including the probability of the
harm occurring if precautions were not taken, the possible seriousness of the
harm and whether the defendant could have done anything differently. These
factors are discussed in detail in Chapter 11.
8.15 This element of the negligence action came under scrutiny in the
Review of the Law of Negligence — Final Report2 (the Ipp Report), as the
evidence was that courts had not been correctly considering the issue of
foreseeability. Under the common law, the question of whether the defendant
ought to have taken precautions against a foreseeable risk, was at the level of
risk being more than ‘far-fetched and fanciful’, as laid down by Mason J in the
High Court decision of Wyong Shire Council v Shirt (1980) 146 CLR 40.
However, the Ipp Report found that lower courts had a tendency to find that
it was negligent not to take precautions based upon the risk being reasonably
foreseeable, without taking into account the calculus of negligence: at 7.14. In
New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [7], Gleeson CJ
stated:
There may be cases where courts have lost sight of the ultimate criterion of reasonableness, or
have adopted a mechanistic approach to questions of reasonable foreseeability, risk
management or risk avoidance … There have been occasions when judges appear to have
forgotten that the response of prudent and reasonable people to many of life’s hazards is to do
nothing.
8.16 The Ipp Report went as far as to say that misapplication of the test in
Wyong Shire Council v Shirt had ‘brought the law of negligence into
disrepute’: at 7.14. As a result, the civil liability legislation in every Australian
jurisdiction adopted the Ipp Report recommendation (recommendation 28)
in relation to breach of the duty of care. A defendant will not be in breach of
their duty of care unless the risk of harm was foreseeable, the risk was not
insignificant and a reasonable person in the position of the defendant would
have taken precautions: see Chapter 11.
Damage
8.17 As an action on the case, a plaintiff cannot succeed in negligence
unless they have suffered damage. As Brennan J stated in John Pfeiffer Pty Ltd
v Canny (1981) 148 CLR 218 at 241; 36 ALR 466 at 484, ‘duty of care is a
thing written on the wind unless damage is
[page 148]
caused by the breach of that duty; there is no actionable negligence unless
duty, breach and consequential damage coincide’. However, there are limits
on what is recognised as damage by the law, and in negligence there are limits
on how far a court will impose liability by reference to policy.
8.18 The damage element requires that the plaintiff has suffered a kind of
damage recognised by the law and that in fact the breach of duty caused the
damage. Further, the kind of damage suffered must be the reasonably
foreseeable consequence of the breach and it must be appropriate that liability
for that damage be imposed upon the defendant (scope of liability).
8.19 Factual causation requires a consideration of whether the plaintiff
would have suffered the damage ‘but for’ the defendant’s breach: March v E &
M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423. There are various
common law tests for factual causation; however, the civil liability legislation
has legislated that the breach of duty must be a ‘necessary condition of the
occurrence of the harm’ and the High Court has held that this is the ‘but for’
test: Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420.
8.20 Under the common law, a defendant may be liable for all of the
plaintiff’s loss if their breach materially contributed to the loss: Bonnington
Castings Ltd v Wardlaw [1956] AC 613; Fairchild v Glenhaven Funeral
Services Ltd [2002] 3 WLR 89. The Ipp Report identified that this was a
relaxation of factual causation as it allowed causation to be established even
though it could not be proved in the balance of probabilities: at 7.31. Where
there is an ‘evidentiary gap’ and therefore the ‘but for’ test is unsatisfactory,
normative issues come into play, including a consideration of whether the
responsibility of the loss should be imposed upon the negligent party:
recommendation 29. All Australian jurisdictions, except for the Northern
Territory, adopted this approach in the civil liability legislation. The element
of damage is examined in detail in Chapter 12.
4
Questions of Law and Fact
8.21 It is an accepted feature of the common law tradition that questions
of law act as control devices, permitting judges to impose limitations upon
the potential scope of the negligence action. Questions of law, therefore, are
the device through which principles of law are developed and which prevent
the negligence action being frozen in a particular social, economic and
political point of time. It is upon questions of law that precedents are
established.
8.22 Questions of law arise at each of the three stages of a negligence
action:
It is a question of law whether the defendant owes the plaintiff a duty
of care.
The standard of care in the element of breach is determined by the
court as it is a question of law.
Whether liability for the damage should be imposed upon the
defendant as the harm is within the defendant’s scope of liability is a
question of law.
[page 149]
8.23 In contrast, questions of fact (the jury questions) are restricted to the
issues in dispute between the parties in the individual case and have no legal
significance in future cases.
8.24 Another important distinction between questions of fact and of law is
that, on questions of law, an appellate court will not hesitate to overturn a
decision if an incorrect principle of law has been applied, regardless of
whether the trial was held with or without a jury. With questions of fact that
have been decided by a jury, an appellate court may only interfere if the jury
has reached a conclusion which is so strongly against the weight of the
evidence that no reasonable jury could have reached it: Commissioner for
Railways v Small [1957] ALR 529; Calin v Greater Union Organisation Pty Ltd
(1991) 173 CLR 33 at 41; Swain v Waverley Municipal Council (2005) 213
ALR 249. As to the circumstances when new or ‘fresh’ evidence may be
presented on an appeal, see Commonwealth Bank of Australia v Quade (1991)
178 CLR 134; Richards v Forsyth [2007] VSCA 227. See 11.89 for a discussion
of appeals on the findings as to breach of duty, a question of fact.
8.25 The restrictions which apply to an appeal from a question of fact
decided by a trial judge sitting without a jury are less onerous, although an
appellate court will still be hesitant to interfere with a decision where the trial
judge has had the advantage of hearing and observing the witnesses at first
hand. For an example of a Court of Appeal allowing an appeal on the facts,
against a trial judge sitting alone, see Davis v Council of the City of Wagga
Wagga [2004] NSWCA 34 and the High Court decision in Suvaal v Cessnock
City Council (2003) 200 ALR 1.
8.26 However, the significance of the distinction between questions of law
and questions of fact has been eroded by the trend, in recent years, to limit
the availability of jury trials in civil matters. For example, in Queensland,
juries are not available in actions involving damages for personal injury: Civil
Liability Act 2003 s 73.
Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 7.
M K Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’
(2004) 24 Aust Bar Rev 219.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 2.
B McDonald, ‘The Impact of the Civil Liability Legislation on
Fundamental Policies and Principles of the Common Law of
Negligence’ (2006) 14 TLJ 268.
J Stapleton, ‘Cause-in-Fact and the Scope of Liability for
Consequences’ (2003) 119 LQR 388.
—, ‘The Golden Thread at the Heart of Tort Law: The Protection of the
Vulnerable’ (2003) 24 Aust Bar Rev 135.
1.
J Stapleton, ‘The Golden Thread at the Heart of Tort Law: The Protection of the Vulnerable’
(2003) 24 Aust Bar Rev 135 at 135; but see also M K Kirby who noted, in 2005, that the ‘imperium
of the law of negligence’ has been wound back: ‘Ten Years in the High Court — Continuity and
Change’ (2005) 27 Aust Bar Rev 4 at 11.
2.
Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),
October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-ofNegligence>.
[page 151]
Chapter 9
Established Duties of Care
1
Introduction
9.1 In Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [42], the
members of the High Court in a joint judgment stated:
A defendant will only be liable, in negligence, for the failure to take reasonable care to prevent a
certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to
take such care.
9.2 A duty of care is ‘a particular and defined legal obligation arising out of
a relationship between an ascertained defendant (or class of defendants) and
an ascertained plaintiff (or class of plaintiffs)’: Roads and Traffic Authority of
New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [44] per
Gummow J. In Chan v Acres [2015] NSWSC 1885 at [96] it was said, ‘To say
that one person owes another a duty of care is to make a statement about a
legal aspect, or incident, of the relationship between those two people’.
9.3
Duties of care may be classified into two categories:
1.
Established duties of care — determined by reference to the
precedents established by similar cases, that is, the law recognises
that certain relationships give rise to a duty of care.
2.
Novel duties of care — the facts do not fit within any of the
established duties of care, but as Lord Macmillan stated in
Donoghue v Stevenson [1932] AC 562 at 619, ‘the categories of
negligence are never closed’: see Chapter 10.
The majority of cases that go before the courts involve established duties of
care. In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR
254; 176 ALR 411 at [13], Gleeson CJ observed:
Most actions in tort which come before trial courts arise out of relationships in which the
existence of a duty of care is well-established, and the nature of the duty well understood. Cases
arising out of the use of a motor vehicle, or involving employer and employee, or bailor and
bailee, turn upon the application to the facts of well-settled principles concerning legal
responsibility.
Scope of the Duty of Care
9.4 The recognition of a duty of care, established or in a novel situation,
does not impose an all-encompassing duty. Every duty of care is founded
upon the ‘neighbour principle’ —
[page 152]
to take reasonable care so as not to expose the plaintiff to foreseeable risks of
injury — but is not unlimited in scope. Gummow J in Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at
[43] explained:
… duties of care are not owed in the abstract. Rather, they are obligations of a particular scope,
and that scope may be more or less expansive depending on the relationship in question.
Secondly, whatever their scope, all duties of care are to be discharged by the exercise of
reasonable care. They do not impose a more stringent or onerous burden.
9.5 It is possible that the scope of an established duty is an issue if the facts
of the case are outside the recognised scope. French CJ and Gummow J in
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR
375 at [22] stated:
Different classes of care may give rise to different problems in determining the nature or scope
of a duty of care. In many cases a duty formulated as being one to take “reasonable care” may
suffice for the finding of duty in that particular case. Cases that involve the duty of a solicitor to
his or her client to exercise professional skill in accordance with the retainer, the duty of a
motorist towards other users of the road, or the duty owed by an occupier of land to an entrant
with respect to the condition of the premises, ordinarily involve no real controversy over the
scope and content of the duty of care; these are considered at the “high level of abstraction”
spoken of by Glass JA in Shirt v Wyong Shire Council [[1978] 1 NSWLR 631 at 639]. But where
the relationship falls outside of a recognised relationship giving rise to a duty of care, or the
circumstances of the case are such that the alleged negligent act or omission has little to do with
that aspect of a recognised relationship which gives rise to a duty of care, a duty formulated at
too high a level of abstraction may leave unanswered the critical questions respecting the
content of the term “reasonable” and hence the content of the duty of care. These are matters
essential for the determination of this case, for without them the issue of breach cannot be
decided. The appropriate level of specificity when formulating the scope and content of the duty
will necessarily depend on the circumstances of the case. [footnotes omitted]
An example of where the scope of an established duty of care had to be
considered is Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205
CLR 254; 176 ALR 411. The appellant owned a shopping centre at which the
respondent was an employee of one of the lessees at the centre. The
respondent was criminally assaulted by three unknown assailants in the
centre’s car park one night when leaving work. The lights for the car park
were not on at the time. The respondent alleged that as occupier, the
appellant owed them a duty of care and had breached the duty by failing to
leave lights on. It was not denied that as the occupier of the shopping centre,
the appellant owed the respondent a duty of care. Gleeson CJ stated (at [17]):
That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt.
It is clear that the appellant owed the first respondent a duty in relation to the physical state and
condition of the car park. The point of debate concerns whether the appellant owed a duty of a
kind relevant to the harm which befell the first respondent. That was variously described in
argument as a question concerning the nature, or scope, or measure of the duty. The nature of
the harm suffered was physical injury inflicted by a third party over whose actions the appellant
had no control. Thus, any relevant duty must have been a duty related to the security of the first
respondent. It must have been a duty, as occupier of land, to take reasonable care to protect
[page 153]
people in the position of the first respondent from conduct, including criminal conduct, of third
parties.
The issue to be determined by the High Court was ‘whether, at common
law, a duty of care may be established and extend, in its scope, to the
avoidance of foreseeable risks of injury arising out of the criminal acts of a
third party’ (at [65] per Kirby J) or as Hayne J phrased it, ‘[t]he relevant
question in the present case is not whether an occupier owes some duty of
care to an entrant. The question is what is the extent of the duty which the
occupier owes’: at [102]. A majority of the court (Kirby J in dissent) held that
the scope of the duty of care of the appellant did not extend to taking
reasonable care to prevent injury to lawful entrants to the land by criminal
third parties.
9.6 The High Court has warned of formulating the duty of care with close
reference to the alleged breach. In Kuhl v Zurich Financial Services Australia
Ltd (2011) 243 CLR 361; 276 ALR 375 at [19], French CJ and Gummow J
warned:
… there is an inherent danger in an action in negligence to look first to the cause of damage and
what could have been done to prevent that damage, and from there determine the relevant duty,
its scope and content [Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711; Roads
and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761; Stuart v
Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432].
9.7 The scope or content of the duty must be determined before any
inquiry into breach can be made as otherwise assumptions are made ‘about
the content of the duty of care’ which ‘may fail to take fundamental aspects of
the relationship between the parties into account’: Koehler v Cerebos
(Australia) Ltd (2005) 222 CLR 44; 214 ALR 355 at [19]. See also CAL No 14
Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009)
239 CLR 390; 260 ALR 606.
It is important to define the scope of the duty, be it an established duty or a
novel duty, as it must allow the issue of breach to be determined: Kuhl v
Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at
[22]; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233
ALR 200 at [8] per Gleeson CJ. See also Romeo v Conservation Commission of
the Northern Territory (1998) 192 CLR 431; 151 ALR 263 at [122]; Schultz v
McCormack [2015] NSWCA 330 at [70]–[74].
Established Duties of Care
9.8
As the law of negligence developed, many relationships were
recognised as giving rise to a duty of care. The established duties of care that
are examined in this chapter are:
occupiers of premises and entrants;
employers and employees;
road users and other road users;
persons and authorities in control of others;
professionals and clients; and
manufacturers of goods and consumers.
[page 154]
2
Occupiers of Premises
9.9 Before the modern concept of negligence started to develop from the
decision of Donoghue v Stevenson [1932] AC 562, the duty of care of an
occupier was dependent upon the class of entrant. Under the old rules, the
following applied:
Contractual entrants The tortious duty required that the premises
were as safe for the contemplated purpose as reasonable care and skill
could make them: Francis v Cockrell; Maclennan v Segar [1917] 2 KB
325; Gribben v Woree Caravan Park and Motels [1970] Qd R 420.
Invitees The duty owed to invitees was ‘that the occupier shall on his
part use reasonable care to prevent damage from unusual danger
which he knows or ought to know’: Indermaur v Dames (1866) LR 1
CP 274 at 288 per Willes J. Whether something amounted to an
unusual danger depended upon the nature of the danger, the place
where it was found and the activity being undertaken by the particular
invitee: Pinborough v Minister of Agriculture [1974] 7 SASR 493.
Entrants as of right Members of the public entering public premises
or public officials entering private property under the authority of a
statute were owed a duty of care equivalent to that of an invitee or
licensee.
Licensees The duty was only to warn of any unusual or concealed
danger, of which the occupier knew and which would not be obvious
to a reasonably careful entrant: Lipman v Clendinnen; Phipps v
Rochester Corporation [1955] 1 QB 450; Hawkins v Coulsdon and
Purley Urban District Council [1954] 1 QB 319. If the licensee knew of
the danger, then no warning was necessary: Dunster v Abbott [1953] 2
All ER 1572; [1954] 1 WLR 58.
Trespassers At first the duty was only in respect of injuries caused as a
result of wilful default or reckless disregard: Addie v Dumbreck [1929]
AC 358; Mourton v Poulter [1930] 2 KB 183; Edwards v Railway
Executive [1952] AC 737. However, a duty of common humanity
replaced this under which the occupier was expected to act towards
trespassers as would a humane person with the knowledge, ability and
resources of the occupier: British Railways Board v Herrington [1972]
AC 877; Southern Portland Cement Ltd v Cooper [1974] AC 623; (1973)
129 CLR 295; 2 ALR 113.
9.10 These old rules were finally abandoned in Australia by the High
Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69
ALR 615. As the High Court commented in Thompson v Woolworths (Qld)
Pty Ltd (2005) 221 CLR 234; 214 ALR 452 at [24], in a single joint judgment:
There was a time when the common law sought to define with precision the duty of care owed
by an occupier of land, and treated the content of the duty as variable according to categories
fixed by reference to the status of entrants. The common law has since rejected the approach of
seeking to construct a series of special duties by reference to different categories of entrant. The
problems involved in the former approach included the rigidity of the classification of entrants,
and the artificiality of distinguishing between the static condition of premises and activities
conducted on the premises. That is not to say, however, that the law now disregards any aspect
[page 155]
of the relationship between the parties other than that of occupier and entrant. On the contrary,
other aspects of the relationship may be important, as considerations relevant to a judgment
about what reasonableness requires of a defendant, a judgment usually made in the context of
deciding breach of duty (negligence). [footnotes omitted]
In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69
ALR 615, the plaintiff slipped in the defendant supermarket’s foyer where the
vinyl-covered floor had become wet due to customers entering the store on a
rainy day. A majority of the High Court held there was no longer any
justification for the continued recognition of the special duties of occupiers,
and all that was necessary was the necessary degree of proximity of
relationship. Mason CJ, Wilson, Deane and Dawson JJ stated (at CLR 487–8;
ALR 620–1):
All that is necessary is to determine whether, in all the relevant circumstances including the fact
of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the
defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A
prerequisite of any such duty is that there be the necessary degree of proximity of relationship.
The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to
the visitor or to the class of person of which the visitor is a member. The measure of the
discharge of the duty is what a reasonable man would, in the circumstances, do by way of
response to the foreseeable risk.
9.11 As to who is an ‘occupier’, McHugh J commented in Cole v South
Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR
52 at [30]:
The common law has long recognised that the occupier of premises owes a duty to take
reasonable care for the safety of those who enter the premises. That duty arises from the
occupation of premises. Occupation carries with it a right of control over the premises and those
who enter them. Unless an entrant has a proprietary right to be on the premises, the occupier
can turn out or exclude any entrant — even an entrant who enters under a contractual right.
Breach of such a contract will give an entrant a right to damages but not a right to stay on the
premises.
In Romeo v Conservation Commission of the Northern Territory (1998) 192
CLR 431; 151 ALR 263 at [15], Brennan CJ explained:
… possession or occupation gives the defendant an ability to safeguard the entrant against
dangers in the condition of the premises. It is not simply possession or occupation of premises
which founds the duty of care but power to determine the terms on which an entrant may enter
and power to safeguard the entrant against dangers in the condition of the premises entered.
Scope of the Duty
9.12
The accepted scope of the duty is that an occupier must take
reasonable care to avoid foreseeable risks of injury to an entrant: Australian
Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615; Romeo v
Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151
ALR 263; Neindorf v Junkovic (2005) 222 ALR 631; Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at
[45]; Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420.
The scope of the duty is influenced by the type of premises occupied by the
defendant. For example, in Sharp v Paramatta City Council (2015) 209
LGERA 220, the duty owed by the defendant, the occupier of a public pool,
was ‘to take reasonable care to avoid foreseeable
[page 156]
risks of injury to persons using the pool’ and ‘[b]eyond that, the scope and
content of the duty depended upon the particular circumstances’: at [4]. See
also Woolworths Ltd v Ryder (2014) 87 NSWLR 593 at [51] (trial judge erred
in holding scope of defendant occupier required it to exercise reasonable care
to ‘obviate any foreseeable danger’ which it should be aware, ‘regardless of
whether the danger might exist within the supermarket itself or in the nearby
common area’).
9.13 In Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R
1, the plaintiff was injured at the defendant’s supermarket when a five-yearold boy in charge of a shopping trolley ran into her. The Court of Appeal held
(at [13]) that the defendant as occupier owed a duty of care as the risk of
injury was foreseeable:
Grocery shopping can be a harrowing experience requiring tolerance, patience, care and some
skill in manipulating wayward trolleys in crowded aisles. But shoppers ought to be protected
from impacts at speed with well-laden, out-of-control trolleys negligently pushed by children or
adults, where the supermarket was or ought to have been aware of the negligent behaviour. Of
course, accidents regularly happen without negligence on anyone’s part. Tired, bored children
and their harassed care-givers are a common enough dynamic of supermarket shopping which
should ordinarily call up the compassion and assistance of fellow shoppers, not complaints. But
if supermarket staff have effective notice of reasonably foreseeable dangerous behaviour from
shoppers or their children, it is the supermarket’s legal obligation to make reasonable attempts
to curb such behaviour which may not only place their shoppers at risk but also their employees.
9.14 However, as noted at 9.5, the scope of the occupier’s duty of care may
be problematic.
In Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR
452, the appellant regularly delivered bread to the respondent’s store. The
appellant was injured when she tried to move industrial bins that were
blocking her access to the loading dock. The High Court held that the scope
of the duty of care owed by the respondent to the appellant extended to
ensuring that the system for the delivery of goods to its premises did not
expose her to an unreasonable risk of physical injury. The scope of the duty
extended to, not only the static condition of premises to which the deliveries
were made, but also the system of delivery itself. Their Honours held (at [27]):
… the respondent established and maintained a system, and its obligation to exercise reasonable
care for the safety of people who came onto its premises extended to exercising reasonable care
that its system did not expose people who made deliveries to unreasonable risk of physical
injury. A number of aspects of the facilities and procedures for the delivery of goods into the
respondent’s store might have involved issues of health and safety. Many, perhaps most, of the
people who made the actual deliveries were outside the respondent’s organisation, and were not
subject to the direct control it exerted over its employees. Even so, they were regular visitors to
the premises, for a mutual commercial purpose, and it was reasonable to require the respondent
to have them in contemplation as people who might be put at risk by the respondent’s choice of
facilities and procedures for delivery.
9.15 In Cole v South Tweed Heads Rugby League Football Club Ltd (2004)
217 CLR 469; 207 ALR 52, the High Court considered whether occupiers of
licensed premises owe a duty of care to prevent intoxicated patrons from
leaving the premises, over and above that required by the relevant liquor
licensing legislation. The plaintiff argued, inter alia, that the
[page 157]
defendant club owed her a duty to prevent her from leaving the club when its
employees knew she was intoxicated — she was subsequently found to have a
blood alcohol content of 0.238 per cent. In bringing the action, she was
seeking damages from the club for the injuries she received as a pedestrian
soon after she left the club premises. By a 4:2 majority, the court held either
that the defendant did not owe the plaintiff a duty of care in the terms argued
or that, even if a duty was owed, it had not been breached. For example,
Gleeson CJ stated (at [18]): ‘The consequences of the appellant’s argument as
to duty of care involve both an unacceptable burden upon ordinary social and
commercial behaviour, and an unacceptable shifting of responsibility for
individual choice’. Callinan J (at [130]) endorsed the comments of Heydon JA
in the Court of Appeal (South Tweed Heads Rugby League Football Club Ltd v
Cole (2002) 55 NSWLR 113 at [7]), that:
… if the tort of negligence were extended as far as the [appellant] submitted, it would “subvert
many other principles of law, and statutory provisions, which strike a balance of rights and
obligations, duties and freedoms”.
Only McHugh and Kirby JJ, in dissent, held that the club owed a duty of
care to the plaintiff. As McHugh J (with whom Kirby J agreed on this point at
[91]) described the relationship with the club:
The duty of an occupier is not confined to protecting entrants against injury from static defects
in the premises. It extends to the protection of injury from all the activities on the premises.
Hence, a licensed club’s duty to its members and customers is not confined to taking reasonable
care to protect them from injury arising out of the use of the premises and facilities of the club.
It extends to protecting them from injury from activities carried on at the club including the sale
or supply of food and beverages. In principle, the duty to protect members and customers from
injury as a result of consuming beverages must extend to protecting them from all injuries
resulting from the ingestion of beverages. It must extend to injury that is causally connected to
ingesting beverages as well as to internal injury that is the result of deleterious material,
carelessly added to the beverages: at [31].
9.16 In CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents
Insurance Board (2009) 239 CLR 390; 260 ALR 606, the appellant claimed
damages from the respondent, alleging that it had been negligent in allowing
her husband to leave its licensed premises and drive his motorcycle when he
was intoxicated. The Tasmanian Court of Appeal had found that the
respondent owed the deceased husband ‘a duty to take reasonable care to
prevent Mr Scott from riding the motorcycle when so affected by alcohol as to
have reduced capacity to ride it safely’: Scott v CAL No 14 Pty Ltd (t/as
Tandara Motor Inn) (No 2) (2007) 17 Tas R 331; 256 ALR 521 at [53]. On
appeal to the High Court, an even more narrow duty was argued — that the
duty of the respondent was to contact the deceased’s wife in order for her to
collect him. The High Court was critical of the Tasmanian Court of Appeal’s
formulation of the duty of care, warning that it was best to avoid arguments
for duty of care based upon the specific facts of the case: at [37]. The High
Court held (at [31]):
There is no doubt that the proprietor and the licensee [the respondent] owed Mr Scott various
duties to take reasonable care — for example, a duty to take reasonable care to ensure that the
premises were physically safe, and a duty to take reasonable care to ensure that equipment in
operation, like gambling machines and kegs, did not injure him.
[page 158]
However, no duty was owed to the appellant’s husband as:
… persons in the position of the proprietor and the licensee, while bound by important
statutory duties in relation to the service of alcohol and the conduct of the premises in which it
is served, owe no general duty of care at common law to customers which requires them to
monitor and minimise the service of alcohol or to protect customers from the consequences of
the alcohol they choose to consume. That conclusion is correct because the opposite view would
create enormous difficulties … relating to customer autonomy and coherence with legal norms:
at [52].
See also Schuller v S J Nominees Pty Ltd (2015) 124 SASR 152 (appellant
sued hotel in negligence for injuries she suffered when she fell off a chair
while dancing).
Legislation and the scope of duty
9.17 Many Australian jurisdictions have included a statement of the scope
of duty of care of an occupier in legislation. For example, in the Australian
Capital Territory, s 168 of the Civil Liability (Wrongs) Act 2002 provides:
(1) An occupier of premises owes a duty to take all care that is
reasonable in the circumstances to ensure that anyone on the
premises does not suffer injury or damage because of —
(a) the state of the premises; or
(b) things done or omitted to be done about the state of the
premises.
The section expressly replaces the old common law rules as to the duty
owed to the different classes of entrant, but preserves the other common law
rules and any obligation an occupier may have under contract or statute: Civil
Liability (Wrongs) Act 2002 (ACT) s 168(5).
See also Civil Liability Act 1936 (SA) s 20; Wrongs Act 1958 (Vic) s 14B;
Occupiers Liability Act 1985 (WA) s 5. See also Personal Injuries (Liabilities
and Damages) Act 2002 (NT) s 9, which provides an occupier or owner of a
dwelling house or commercial premises does not incur civil liability in
negligence if the plaintiff entered the premises with the intent of committing
an offence punishable by imprisonment.
Warning signs
9.18
The circumstances in which an occupier has a positive duty to
provide warning signs has been considered in a series of High Court cases: see
Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 393; Romeo v
Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151
ALR 263; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Hoyts
Pty Ltd v Burns (2003) 201 ALR 470; 77 ALJR 1934; Vairy v Wyong Shire
Council (2005) 223 CLR 422; 221 ALR 711; Mulligan v Coffs Harbour City
Council (2005) 223 CLR 486; 221 ALR 764; Roads and Traffic Authority of
New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761.
9.19 In Roads and Traffic Authority of New South Wales v Dederer (2007)
234 CLR 330; 238 ALR 761, the respondent dived from a bridge into shallow
water, despite the pictogram depicting ‘no diving’, and struck his head.
Gummow J referred to the decisions of Modbury Triangle Shopping Centre
Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 and Sutherland Shire
Council v Heyman (1985) 157 CLR 424; 60 ALR 1, noting that an occupier’s
duty is to
[page 159]
take reasonable care and that to impose a duty to prevent foreseeable harm to
others would be outside the scope of the duty:
The trial judge and the majority in the Court of Appeal impermissibly reasoned that if a warning
is given, and if the conduct against which that warning is directed continues notwithstanding
the warning, then the party who gave the warning is shown to have been negligent by reason of
the warning having failed. Quite apart from its inconsistency with the scope of the RTA’s duty of
care, this reasoning erroneously short-circuits the inquiry into breach of duty … : at [55].
9.20 In Hoyts Pty Ltd v Burns (2003) 201 ALR 470; 77 ALJR 1934, the
plaintiff was injured in the defendant’s cinema when she momentarily left her
seat to attend to a child and the seat automatically retracted. This action
caused the plaintiff to fall when she attempted to return to her seat. The
plaintiff argued that the scope of the duty owed by the defendant to patrons
included the provision of signs warning of the retracting seats. In finding
against the plaintiff, the majority of the High Court based its decision on the
inference that the presence of a sign would not, in fact, have prevented her
injury. In agreeing with the majority, Kirby J considered the following factors
as being relevant, in the context of the particular circumstances of a case,
when determining whether the duty of care owed by the occupier extends to
the provision of a warning sign:
(1) whether the occupier has an economic or other interest in the entry of the plaintiff; (2)
whether, because of previous incidents, public discussion or otherwise the occupier could be
expected to know of any particular risks against which warnings should be given; (3) whether
there was any hidden feature of the place or activity that might not be plain to an ordinary
entrant but which should be known to, or reasonably discoverable by the occupier, calling for a
warning; (4) whether, if the risk eventuated, the consequences would be likely to be minor or
significant for the person affected; (5) whether the imposition of a requirement to give a notice
could be confined to a particular place or places or would have large implications, costs and
other consequences; and (6) whether the nature of the activity in question was such as to render
the presence of a sign irrelevant to the actual prevention of injury: at [71]. [footnotes omitted]
See also Borland v Makauskas [2000] QCA 521, where the plaintiff sued the
occupiers of the waterfront property at which he had been at a party, for the
injuries he sustained when he dived off a fence into the canal. The Court of
Appeal held that it was not necessary for the occupiers to place signs along
the boundary of their property warning visitors not to dive into the canal. The
risk was held not to be foreseeable and therefore outside the scope of the
occupier’s duty of care: at [13].
Landlords
9.21 Landlords and tenants are in a contractual relationship based on
rights over land and, for this reason, the common law previously treated the
relationship as special. The general rule was that, outside of the contractual
relationship, a landlord owed no duty to a lessee or others on the premises
unless the landlord:
conducted active operations or had undertaken repairs (AC Billings &
Sons Ltd v Riden [1958] AC 240);
fraudulently concealed a defect (Travers v Gloucester Corporation
[1947] KB 71);
was responsible for faulty design (Rimmer v Liverpool City Council
[1985] QB 1); or
[page 160]
the premises were unfurnished when leased but were unfit for
occupation and the injury resulted from their defective state: Charsley
v Jones (1889) 53 JP 280.
In the absence of one of these exceptions, the landlord owed no duty of
care in tort: Cavalier v Pope [1906] AC 428. In Cavalier v Pope, the
unsuccessful plaintiff suffered injuries after falling through dilapidated
flooring which the landlord had promised her husband, as lessee, he would
repair.
The rule in Cavalier v Pope was finally rejected in Parker v South
Australian Housing Trust (1986) 41 SASR 493, which was approved by the
High Court in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313;
146 ALR 572.
9.22 The relationship of landlord and tenant is considered under the duty
of occupier and entrant due to the meaning of occupation. In Northern
Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 336; 146 ALR 572 at 584,
it was explained:
The true bases of the occupier’s duty of care are the power of control which an occupier has to
consent to another’s entry and the power to safeguard the entrant against injury or loss from
defects in the occupied premises (see Wheat v E Lacon & Co Ltd [1966] AC 552 at 578–9). Yet a
landlord has powers corresponding to those of an occupier to consent to entry into occupation
of the premises by the tenant and those who, to the knowledge of the landlord, are intended to
occupy the premises under and for the purposes of the tenancy and the power to safeguard those
persons against injury or loss from defects that are in the premises at the time when the tenant is
let into possession.
In that case, Brennan CJ held (at CLR 339; ALR 586):
I would hold a landlord to be under a duty of care in respect of the demised premises requiring
the same standard of care as is required of occupiers towards those who enter occupied premises
by consent and for reward, the landlord’s duty of care being (i) limited to defects in the premises
at the time when the tenant is let into possession; and (ii) owed to the tenant and to those who,
to the knowledge of the landlord, are intended to occupy the premises under and for the
purposes of the tenancy.
9.23 The High Court again considered the scope of the duty of care owed
by landlords to tenants and their families in Jones v Bartlett (2000) 205 CLR
166; 176 ALR 137. In that case, the tenant’s son was injured when he put his
knee through an internal glass door in the residential property. The glass in
the door had conformed with the relevant safety standards at the time that the
house was built, but did not comply with the current higher standards
applicable to new houses. The court considered that the decision in Northern
Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 had
expanded the duty of care owed to tenants at common law, although their
Honours varied as to their opinion of the exact content of that expanded
duty.
Gleeson CJ and McHugh and Kirby JJ thought the duty was to take
reasonable care to avoid a foreseeable risk of injury to prospective tenants and
their families. Gaudron J considered that the duty was to take reasonable care
for the safety of the tenants and their families and that this extended to
putting and keeping the premises in a safe state of repair. Callinan J seemed to
consider it sufficient that the premises were in a habitable condition at the
commencement of the tenancy.
[page 161]
The joint judgment of Gummow and Hayne JJ referred to the comments of
Lord Atkin in Donoghue v Stevenson [1932] AC 562, and asked whether the
relationship between landlord and tenant is so close and direct that the
landlord should be obliged to take reasonable care to ensure the tenant does
not suffer injury. In answering this question, they referred to the fact that,
ordinarily, the landlord will surrender occupation of the premises to the
tenant and so the content of the landlord’s duty is likely to be less than that
owed by an owner–occupier who retains the ability to direct what is done
upon, with and to the premises. Their Honours went on to hold (at [171] and
[173]) that:
Broadly, the content of the landlord’s duty to the tenant will be conterminous with a
requirement that the premises be reasonably fit for the purposes for which they are let, namely
habitation as a domestic residence.
…
Premises will not be reasonably fit for the purposes for which they are let where the ordinary use
of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury.
The duty requires a landlord not to let premises that suffer defects which the landlord knows or
ought to know make the premises unsafe for the use to which they are to be put. The duty with
respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain
the existence of any such defects and, once the landlord knows of any, if the landlord takes
reasonable steps to remove them or to make the premises safe. This does not amount to a
proposition that the ordinary use of the premises for the purpose for which they are let must not
cause injury; it is that the landlord has acted in a manner reasonably to remove the risks.
Liability for the criminal conduct of third parties
9.24
As noted at 9.5, an occupier’s duty of care does not extend to
providing protection against criminal attacks by third parties: Modbury
Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411.
There are situations, however, where the occupier is able to exercise control
over access to, or the continued presence of persons on, the premises. In these
circumstances, the scope of the occupier’s duty of care may extend to harm
caused to persons on the premises by the criminal acts of third parties: Adeels
Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628; Chordas v
Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; 91 ALR 149.
In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628,
the appellant attempted to rely upon the decision of Modbury Triangle
Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 to
establish that it owed no duty of care to the respondent. The respondent and a
patron had been involved in a fight on the dance floor of the appellant’s
premises. The patron left the premises and returned with a gun, shooting the
respondent. The High Court agreed that the decision in Modbury was
relevant when considering whether an occupier owes a duty to prevent
criminal conduct of a third person on the premises. However, the appellant
was as the occupier and business operator of the restaurant, bound by the
provisions of the Liquor Act 1982 (NSW) which included regulation of
conduct on the licensed premises. In a joint judgment, the High Court held
(at [26]):
[The appellant] owed each [respondent] a duty to take reasonable care to prevent injury to
patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is
[page 162]
consistent with the duty imposed by statute upon the licensee and which was a duty enforceable
by criminal processes. No question arises of translating a statutory power given to a statutory
body into the common law “ought” (compare Pyrenees Shire Council v Day (1998) 192 CLR 330;
151 ALR 147). The duty is not absolute; it is a duty to take reasonable care. It is not a duty
incapable of performance. It is a duty the performance of which is supported by the provision of
statutory power to prevent entry to premises and to remove persons from the premises, if needs
be by using reasonable force. Although it is a duty directed to controlling the conduct of others
(for the avoidance of injury to other patrons) it is a duty to take reasonable care in the conduct
of activities on licensed premises, particularly with regard to allowing persons to enter or remain
on those premises.
See also Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447. The defendant
club was hosting a debutante ball when violence erupted and a senior police
constable who had been sent to the premises was savagely assaulted in the car
park by some of the patrons. The constable sued the club. In finding for the
plaintiff, Brooking, Charles and Chernov JJA distinguished Modbury, saying
(at [34]–[35]):
The criminals in Modbury were in no sense under the control of the defendant. Its supposed
negligence lay in its failure to light the car park, the lights having evidently been turned off at 10
pm, half an hour before the attack.
Here the ruffian Holton could not properly be described as not under the control of the club. It
did in fact fail lamentably to control him, and this is the only sense in which he was not under its
control. He was allowed to misbehave, out of control, when he should have been kept under
control by the club, which had invited him on to its premises and allowed him to remain there
for the purposes of its business … of conducting social functions on its licensed premises at
which it sold liquor to the patrons.
9.25 The issue of control, or lack thereof, was also decisive in Gordon v
Tamworth Jockey Club Inc (2003) Aust Torts Reports ¶81-698. In that case,
the plaintiff argued that the club was in breach of the duty of care she was
owed as a patron of the club. The alleged duty and breach arose in the context
of an attack on the plaintiff by an intoxicated employee of the club. Despite
the fact that the club knew the employee, a cleaner, was intoxicated and acting
in an unruly manner, this was not sufficient to take the facts outside the
principle laid down by the High Court in Modbury. Sheller JA, with whom
Beazley and Giles JJA agreed, commented that this was not a situation where
members of the public were invited by the club on to the premises in such
numbers and in such circumstances that crowd control, including the
removal of people behaving aggressively, was essential for the safety of others
lawfully on the premises. His Honour concluded, therefore, that the club was
not responsible for the assault by its employee when there was no indication
that he was about to commit a criminal act. The club was also not vicariously
liable for the assault which was clearly outside the cleaner’s scope of
employment: see Chapter 20.
3
Employers
9.26 The duty of care which an employer owes an employee operates
concurrently with those duties owed to the employee under the contract of
employment. An employment contract contains, as a matter of law, an
express or implied term requiring the employer
[page 163]
to provide a safe workplace: Matthews v Kuwait Bechtel Corporation [1959] 2
QB 57; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; 65 ALR
1. Failure to provide a safe workplace will be grounds for an action for breach
of contractual duty. In England, it was suggested, in C Czarnikow Ltd v
Koufos [1969] 1 AC 350, that the tortious duty may impose wider liability
than the contractual. This is not the situation in Australia, where the High
Court has held that respect for the coherency of the law requires that, subject
to statutory restrictions, employers and employees should be free to stipulate
the amount of work which an employee agrees to perform under a contract of
employment: Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR
355 at [31].
9.27
There has been considerable development with both courts and
legislatures reflecting the changing political and socioeconomic attitudes of
society in respect of this particular duty of care. Initially, the common law
courts favoured the protection of individual rights and responsibilities which,
in practice, meant the protection of the employer’s rights at the expense of
those of the employee. From the employers’ perspective, this meant that,
during the early years of the Industrial Revolution, they were not burdened
with the overhead costs associated with workplace injuries and deaths.
Instead, these costs were borne by the individual worker. To give just one
example of the extent of workplace injury, in the last quarter of the 19th
century, almost 13,000 workers were recorded as killed at work and almost
69,000 injured in the English railways industry alone.1
9.28 As the 19th century progressed, however, it became increasingly
recognised that employers were, in fact, better placed to bear and spread the
cost of workplace accidents and that the loss should not simply be left where
it fell, that is, on the injured employee. The result was the growth of a political
movement calling for ‘the cost of the product to bear the blood of workers’.
Three developments flowed from these changes:
The first development was the diluting of what was called the ‘unholy
trinity’ of defences which strongly favoured employers. The three
defences were common employment, voluntary assumption of risk and
contributory negligence. The common employment defence was based
upon a fictitious, implied term in the contract of service that the
servant (as employees were then called) agreed to run the natural risks
of employment, including harm caused by the negligence of fellow
servants: Priestley v Fowler (1837) 3 M & W 1; 150 ER 1030. In its most
extreme form, this included the negligence of managerial staff
supervising the activities of manual labourers: Hutchinson v York,
Newcastle & Berwick Railway Company (1850) 5 Exch 343; 155 ER 150.
The defence has now been abolished in all Australian jurisdictions.
The second development was the passing of the legislation which was
the forerunner of today’s occupational, or workplace health and safety
legislation, for example the Factories Amendment Act 1844 (UK) and
the Victorian Supervision of Workrooms and Factories Act 1873. This
legislation not only provided for state-imposed sanctions on dangerous
work practices, but also often provided workers with an action for
breach of statutory duty against their employers: see Chapter 18.
[page 164]
The third development was the introduction of workers’ compensation
legislation, for example the Workmen’s Compensation Act 1897 (UK).
The distinguishing feature of workers’ compensation legislation is that
workers who are injured, or have their health impaired, are
compensated without the need to prove that their employer was at
fault. All that generally is required is that there is a causal or temporal
link between their injury and their employment.
9.29
Therefore, an employee may be compensated in the following ways:
an action in negligence against the employer based upon the personal
duty of care owed by the employer;
access compensation through the employer’s workers’ compensation
insurance scheme;
an action in negligence against the employer, based upon the
employer’s vicarious liability, if injured by another employee’s tort (see
Chapter 20);
an action in breach of statutory duty based upon the occupational
health and safety legislation (see Chapter 18); and
an action in breach of contract for breach of the implied terms to
provide a safe workplace.
See also 9.47 regarding the employer’s non-delegable duty of care.
9.30 Actions in negligence by employees are not common as the workers’
compensation schemes in each jurisdiction provide an easier path for
compensation for personal injury: see 9.54.
9.31 It should be noted that an employer of an independent contractor will
owe a duty of care; however, its scope may differ to that of the content of the
duty owed to an employee. In Leighton Contractors Pty Ltd v Fox (2009) 240
CLR 1; 258 ALR 673 at [52], the High Court pointed out that to impose a duty
in the same terms as is owed to an employee in respect of the safe system of
work, would be ‘inconsistent with maintenance of the distinction that the
common law draws between the obligations of employers to their employees
and of principals to independent contractors’.
Scope of the Duty
9.32 At common law, an employer owes a duty to its employees to take
reasonable care to carry on its business in such a way as to not subject
employees to unnecessary and foreseeable risks of injury: Smith v Charles
Baker & Sons [1891] AC 325; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR
18 at 25; Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419 at 430;
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307; 65 ALR 1
at 5.
9.33 The duty owed is a single duty but, for the purpose of legal analysis, is
traditionally divided into the three headings:
proper selection of skilled persons to manage and superintend the
business (Butler v Fife Coal Co Ltd [1912] AC 149);
[page 165]
provision and maintenance of proper plant and equipment (Wilsons &
Clyde Coal Co Ltd v English [1938] AC 57); and
provision of a safe system of work: Neill v New South Wales Fresh Food
& Ice Pty Ltd (1963) 108 CLR 362; Qualcast (Wolverhampton) Ltd v
Haynes [1959] AC 743.
9.34 An employer’s duty only encompasses foreseeable risks. In Visser v
South Australian Housing Trust (1995) 65 SASR 571, the defendant was held
to have owed no duty of care to the employee telephonist who was injured
when a customer blew a whistle into a telephone headset she was using. The
majority of the South Australian Court of Appeal held that, given the
unlikelihood of such an incident occurring and that there was little general
knowledge of the availability of a sound-limiting device, no duty of care was
owed to require the use of headsets or to fit the device to all telephones.
In respect of those hazards which are foreseeable but cannot be avoided by
the exercise of reasonable care and skill, the employee may have to accept the
risk: Key v Commissioner for Railways (1941) 64 CLR 619; Nair v Health
Administration Corporation (1994) Aust Torts Reports ¶81-312.
It has been stated that ‘the content of the duty of care is not at large but
needs to being into account the contract that existed between parties’:
Woolworths Ltd v Perrins [2015] QCA 207 at [42]. In D’Amico v Calavary
Hospital Auxiliary Inc [2013] ACTSC 259, it was pointed out that the fact that
the employer is a not-for-profit organisation does not alter the duty owed to
its employees.
9.35 As noted previously, issues may arise as to the scope of an established
duty. In employment scenarios, a common issue about the duty of care is
when the damage suffered by the employee is psychiatric injury that is not a
consequence of any physical damage: see Koehler v Cerebos (Australia) Ltd
(2005) 222 CLR 44; 214 ALR 355; Mount Isa Mines Ltd v Pusey (1970) 125
CLR 383. Such claims are not within the established duty of an employer and
are novel: see 10.40ff.
Selection of competent staff
9.36 An employer is required to exercise reasonable care and skill in the
selection of competent supervisory staff (Butler v Fife Coal Co Ltd [1912] AC
149) and to ensure that the staff is properly trained to carry out their duties.
The employer is also required to maintain discipline among staff and,
ultimately, to dismiss an employee who is a danger to other employees.
Plant and equipment
9.37
This part of the employer’s duty encompasses the work site,
machinery and equipment. For example, the work site must be a safe place to
work. In Whitton v New South Wales [2005] NSWCA 97, the workplace, a
classroom, was not safe due to the loose computer cables which caused the
plaintiff to trip.
9.38 If the employee is required to attend premises not occupied by the
employer, the employer may still be liable: Wilson v Tyneside Window
Cleaning Co [1958] 2 QB 110;
[page 166]
ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372. In
Smith v Austin Lifts Ltd [1959] 1 WLR 100 at 117, Lord Denning held:
… employers who send their workmen to work on the premises of others cannot renounce all
responsibility for their safety. The employers still have an over-riding duty to take reasonable
care not to expose their men to unnecessary risk. They must, for instance, … if they know or
ought to know of a danger on the premises to which they send their men, they ought to take
reasonable care to safeguard them from it. What is reasonable depends, of course, on the
circumstances.
See also Sinclair v William Arnott Pty Ltd; Kell & Rigby Pty Ltd (Third
Party) (No 2) (1963) 64 SR (NSW) 88 at 92.
9.39 In DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210, the
court noted that the duty to provide proper plant and equipment will operate
differently in respect of premises over which the employer has no control.
Basten JA stated (at [54]):
Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific
questions with respect to what may be expected of an employer exercising reasonable care for
the safety of its employees. For example, is it reasonable for the employer to request or require
access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the
employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it
necessary (and sufficient) for the employer to inquire in specific terms of its own employees as
to the nature of the conditions they encounter at other premises?
9.40
Where the employer is also the occupier, the employee may be
entitled to rely upon the breach of the duty of his or her employer, both as
employer and as occupier.
9.41 This component of the duty requires that the employer exercise
reasonable care in the provision, maintenance and repair of plant and
equipment: TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 at [61];
Smith v Brambles Australia Ltd [2011] NSWSC 963. Therefore, an employer
must:
ensure that the employee is able to use any equipment or machinery
safely which may require training and instruction;
provide suitable equipment (see Fuller v New South Wales Department
of School Education and Training (2004) Aust Torts Reports ¶81-756
where the ladder supplied to the employee was unsuitable); and
have reasonable inspection and maintenance systems in place: see
Bourk v Power Serve Pty Ltd [2008] QSC 29, where the court held the
lack of inspection was reasonable as the equipment provided to the
plaintiff was new and usually lasted for years.
9.42 Liability for defects in equipment will arise only if such defects,
including those due to the negligence of the manufacturer, could have been
discovered by the exercise of reasonable care: TNT Australia Pty Ltd v
Christie (2003) 65 NSWLR 1; Davie v New Merton Board Mills Ltd [1959] AC
604 (latent defect in tool provided by employer); Bellambi Coal Co Ltd v
Murray (1909) 9 CLR 568. In James Thane Pty Ltd v Conrad International
Hotels Corp [1999] QCA 516, the court found that the appellant, the employer
of injured trapeze
[page 167]
artists, was liable for its failure to carry out inspections of the trapeze
equipment. The respondent was also liable as it had constructed, operated
and maintained the equipment on premises it managed for Jupiters Casino at
the Gold Coast.
Safe system of work
9.43 Although the duty requires an employer to provide and maintain a
safe system of work, what is meant by a ‘safe system’ has to be decided with
reference to the particular case and is not capable of general definition: Speed
v Thomas Swift & Co Ltd [1943] KB 557; and see Hughes v South Australia
(1982) 29 SASR 161. A ‘safe system’ may be:
the provision of instruction (see, for example, Tabcorp Holdings Ltd v
Dank [2011] QCA 253, where the employer had not instructed the
employee on correct lifting techniques);
particular equipment to help with the tasks involved (see, for example,
Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406,
where the employer did not provide the employee with ‘the tools and
equipment reasonably necessary to safely carry out the work which he
was directed to do’: at [128]);
a warning (see, for example, Hughes v SDN Children’s Services Inc
[2002] NSWCA 11, where the employer, a childcare centre, had not
warned the employee of the dangers of contracting cytomegalovirus (a
virus common among children) when pregnant); or
supervision of the system of work to ensure it is correctly implemented
to ensure there is no increased risk of harm: see McGreevy v Cannon
Hill Services Pty Ltd [2016] QSC 29 (defendant’s production line
processes and supervision not reasonable).
9.44 If an employee is harassed, bullied or assaulted by a fellow employee,
this may also be a failure of an employer to provide a safe system of work if
such behaviour is foreseeable: Nationwide News Pty Ltd v Naidu (2007) 71
NSWLR 471 at [25]. As the plaintiff often suffers a psychiatric injury as a
result of harassment and bullying, consideration of the foreseeability of the
harm is required in such cases, as noted in 9.35.
9.45 The employer’s obligation to provide a safe system of work is not
static but includes anticipating carelessness in compliance by employees:
Czatyrko v Edith Cowan University (2005) 214 ALR 349. As the High Court
stated in McLean v Tedman (1984) 155 CLR 306 at 313; 56 ALR 359 at 364:
The employer’s obligation is not merely to provide a safe system of work; it is an obligation to
establish, maintain and enforce such a system. Accident prevention is unquestionably one of the
modern responsibilities of an employer … And in deciding whether an employer has discharged
his common law obligation to his employees the court must take account of the power of the
employer to prescribe, warn, command and enforce obedience to his commands.
9.46 If the employee is working at a third party’s premises, the employer
still is responsible for maintaining a safe system of work: Smith v Austin Lifts
Ltd [1959] 1 WLR 100 at 117; Vincent v Woolworths Ltd [2016] NSWCA 40.
In South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, it
was noted that an employer’s duty included taking reasonable steps to ensure
that the safe system of work was adopted by its employees at other premises.
[page 168]
If an employee is injured at another’s premises, there would also be the
possibility of an action in negligence against the occupier of those premises.
Non-delegable duty
9.47 The duty of care owed by an employer to employees is regarded by
the common law as being one of those special duties which cannot be
delegated. Therefore, for example, the employer will remain liable even where
‘the system of work was devised, in part, by an employee who was
subsequently injured as a result of carrying out the system’: Andar Transport
Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387 at [54]. An
employer’s duty to take care is also a duty to ensure that care is taken: Kondis
v State Transport Authority (1984) 154 CLR 672; Stevens v Brodribb
Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513. See also Chapter 20.
Legislation
Occupational health and safety
9.48 The first English factory legislation — the Health and Morals of
Apprentices Act 1802 — attempted, with little success, to regulate the
working hours and conditions of apprentice pauper children in the cotton
mills. It was the Factory Regulation Act 1833 and the Factories Amendment
Act 1844, however, which initiated the avalanche of safety statutes imposing
specific duties upon employers. Such legislation provided a right of action in
tort for breach of statutory duty (see Chapter 18) to which the doctrine of
common employment did not apply (Groves v Lord Wimborne [1898] 2 QB
402), as well as providing an important base for determining standards of
care.
9.49 Today there is a wide range of statutory regulations imposing detailed
duties on employers, including the national uniform legislation for safety in
the workplace which came into effect on 1 January 2012 in every jurisdiction
except for Victoria and Western Australia. See Work Health and Safety Act
2011 (Cth); Work Health and Safety Act 2011 (ACT); Work Health and
Safety Act 2011 (NSW); Work Health and Safety (National Uniform
Legislation) Act 2011 (NT); Work Health and Safety Act 2011 (Qld); Work
Health and Safety Act 2012 (SA) (1 January 2013); Work Health and Safety
Act 2012 (Tas) (1 January 2013). In Victoria and Western Australia the
uniform legislation has not been adopted: Occupational Health and Safety
Act 2004 (Vic); Occupational Safety and Health Act 1984 (WA).
9.50 The national uniform legislation imposes general duties upon persons
conducting a business or undertaking to ensure the health and safety of
workers so far as is reasonably practicable, by eliminating or minimising risks
to health and safety so far as is reasonably practicable. Under the national
uniform legislation, a person conducting a business or undertaking has
specific duties imposed upon them (see ss 19–26) to:
provide and maintain a work environment without risks to health and
safety;
provide and maintain safe plant and structures;
provide and maintain safe systems of work;
[page 169]
ensure safe use, handling, storage and transport of plant, structures
and substances;
provide adequate facilities for the welfare of workers at work in
carrying out work, including ensuring access;
provide any information, training, instruction or supervision that is
necessary to protect all persons from risks to their health and safety
arising from work carried out; and
monitor workers and the conditions at the workplace for the purpose
of preventing illness or injury of workers arising from the conduct of
the business or undertaking.
9.51 Some workplaces are not within the operation of the national uniform
legislation. For example, in Queensland the Work Health and Safety Act 2011
does not apply to aviation safety, coal mining (Coal Mining Safety and Health
Act 1999 (Qld)), prescribed railway operations where the Transport
Operations (Rail Safety) Act 2010 applies, and operating plants governed by
the Petroleum and Gas (Production and Safety) Act 2004.
9.52 The national uniform legislation provides for different categories of
offences (see ss 31–33), for example ‘category 1’ being a criminal offence
(person with the duty recklessly exposes a person to a risk of death or serious
injury or illness). In Queensland, a ‘category 1’ offence results in a penalty of
$3 million for a corporation, $600,000 and/or five years imprisonment for a
person conducting a business or $300,000 and/or five years imprisonment for
a worker. The legislation does not affect civil liability (s 267), and therefore
non-compliance with the Act or regulations may entail liability both under
the civil law for breach of the statutory duty (see Chapter 18) and under the
criminal law. Breach of the legislation may, furthermore, be relied upon as
evidence of negligence in an ordinary common law action based upon breach
of the common law duty of care: Waugh v Kippen (1986) 160 CLR 156; 64
ALR 195; Sheen v Fields Pty Ltd (1984) 51 ALR 345; 58 ALJR 93.
Workers’ compensation
9.53
The first workers’ compensation legislation was introduced in
Germany by Chancellor Bismarck in 1884. The first English legislation, the
Workmen’s Compensation Act 1897, made the employer a compulsory
insurer against loss of wages from work-related injuries because it permitted
recovery of compensation without proof of fault. Under the Act, and its
successors of 1906 and 1925, the employee was required to elect either
compensation payments under the legislation or the common law right of
action, but could not take the benefit of both. Under the English National
Insurance (Industrial Injuries) Act 1946, the state became the insurer in place
of the employers and no election was required.
9.54 Under the Australian legislative schemes, a worker receives a fixed
measure of statutory compensation for injuries arising out of or in the course
of employment. There is a high degree of standardisation of benefits under
the Acts and their Schedules. The benefits are paid irrespective of the
employer’s or employee’s fault, or of the age, experience of the employee, or
the impact of the injury and are not designed to give full compensation. The
major categories of benefits are death benefits (including funeral expenses),
medical expenses (including those associated with, often mandatory,
rehabilitation) and lump sum awards based on a table of injuries.
[page 170]
See Safety, Rehabilitation and Compensation Act 1988 (Cth); Workers’
Compensation Act 1951 (ACT); Workers Compensation Act 1987 (NSW)
and Workplace Injury Management and Workers Compensation Act 1998
(NSW); Return to Work Act 1986 (NT); Workers’ Compensation and
Rehabilitation Act 2003 (Qld); Return to Work Act 2014 (SA); Workers’
Rehabilitation and Compensation Act 1988 (Tas); Workplace Injury
Rehabilitation and Compensation Act 2013 and Accident Compensation Act
1985 (Vic); Workers’ Compensation and Injury Management Act 1981 (WA).
9.55 The advantage of the legislation is that an employee will receive
workers’ compensation payments without undue delay because there is
usually no dispute as to entitlements. However, most of the legislative
schemes exclude injuries which are caused by the worker’s own serious or
wilful misconduct. Since, in most serious cases, the statutory compensation is
less than full compensation, the employee will later, if legislatively possible,
proceed under a common law tort action to obtain the balance necessary for
full compensation. Where a common law action is permitted, any
compensation paid becomes a charge on the common law damages
recovered.
9.56 Having a number of workers’ compensation schemes in Australia (the
Commonwealth has separate schemes for seafarers and military personnel)
leads to many inconsistencies between the different jurisdictions in terms of
funding, the level of entitlements and access to the common law. Today
workers and businesses are much more mobile than they were before and
such inconsistencies are becoming more important. Despite the proposal to
develop a national policy relating to workers’ compensation as has been done
for work health and safety (see Safe Work Australia Act 2008 (Cth)), this has
not yet occurred.
4
Road Users
9.57 It is well established that a duty of care is owed by every user of the
road to every other road user, as well as to persons and property adjacent to
the road: Edwards v Noble (1971) 125 CLR 296; Loveday v Paddison [1965]
Qd R 535; Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413; Imbree v
McNeilly (2008) 236 CLR 567; 248 ALR 647.
Even a police driver may owe a duty to a person who is being pursued
because they are suspected of driving a stolen vehicle: Marshall v Osmond
[1983] QB 1034. In Zanner v Zanner (2010) 79 NSWLR 702, the court held
that the High Court decision of Imbree v McNeilly supported the proposition
that a child of any age would owe a duty of care while driving a car. In that
case the appellant driver was 11 years old and injured his mother, the
respondent, as he drove the family car into the carport as she supervised from
outside of the car.
9.58 No doubt, knowledge of the existence of compulsory third party
personal injury insurance has played an influential role in fostering the ready
finding of duties of care owed by motor vehicle drivers. Compulsory third
party insurance also means that this particular duty category is the most
significant in terms of the quantity of litigation in those jurisdictions where
litigation has not been substantially modified by statute.
9.59 The courts have also had to grapple with complications such as harm
to unborn children arising from motor vehicle accidents. It is now well
established that a third party
[page 171]
will owe a duty to an unborn child injured in a motor vehicle accident: Watt v
Rama [1972] VR 353. Similarly, where the mother is the driver of the motor
vehicle, she will owe a duty of care to her unborn child: Lynch v Lynch (1991)
25 NSWLR 441; Bowditch v McEwan (2002) 36 MVR 235. However, in both
situations, the unborn child’s right to sue for pre-birth injuries only vests
when the child is born alive: Burton v Islington Health Authority [1993] QB
204.
9.60 However, most disputes occur, not in relation to the existence of a
duty of care, but, rather, as to the appropriate standard of care owed, whether
the duty has been breached, and the apportionment of damages: see, for
example, Insurance Commissioner v Joyce (1948) 77 CLR 39; Van den Heuvel
v Tucker (2003) 85 SASR 512; Anikin v Sierra (2004) 211 ALR 621; 79 ALJR
452; Imbree v McNeilly (2008) 236 CLR 567; 248 ALR 647.
9.61 If a motor vehicle accident takes place on someone’s property, then
the relevant relationship for the duty of care may not be that of a road user.
For example, motor vehicle accidents occur in the course of off-road and rally
events, and occupiers of the premises or organisers of such events may owe
duties of care to ensure the design of courses and signage are appropriate for
a sport which carries with it built-in dangers: Wattleworth v Goodwood Road
Racing Company Ltd [2004] EWHC 140 (duty as occupier); Emmett v
Manning [1985] 40 SASR 297; Macarthur Districts Motor Cycle Sportsmen Inc
v Ardizzone (2004) 41 MVR 235.
See also Simpson v Grundy [2011] QSC 299, where the plaintiff was injured
when she overturned the car while driving on the defendant’s property. She
was driving on a dirt road that was in good condition, with the permission of
her stepfather and grandmother, but was driving fast and was 17 years old.
The court was of the opinion that the case was not related to the duty of an
occupier, but the duty of supervision.
Scope of the Duty
9.62 The scope of the duty of care of a driver of a motor vehicle is to take
reasonable care to avoid foreseeable risks to other road users: Davies v
Tomkins [2009] WASCA 2 at [67]. In Bourhill v Young [1943] AC 92 at 104,
Lord Macmillan, referring to the judgment of Lord Jamieson in the court
below, commented:
… “the duty of a driver is to use proper care not to cause injury to persons on the highway or in
premises adjoining the highway …” Proper care connotes avoidance of excessive speed, keeping
a good look-out, observing the traffic rules and signals and so on.
In Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413 at [12],
Gummow, Kirby and Hayne JJ held:
the reasonable care that a driver must exercise when driving a vehicle on the road requires that
the driver control the speed and direction of the vehicle in such a way that the driver may know
what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those
events.
9.63 A pedestrian is also a road user and therefore owes a duty of care to
others on the road. In Heywood v Miller [2005] ACTSC 4 at [19], the court
held that a pedestrian was ‘under a duty to take reasonable care to ensure that
he or she is not struck by a moving vehicle’.
[page 172]
9.64 In French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214, the
plaintiff sued the taxi driver who left her partner, intoxicated, at the side of a
road. After being left, the plaintiff’s partner was lying on a carriageway and
was hit by a vehicle and killed. The plaintiff argued that the taxi driver owed a
duty of care ‘to exercise reasonable care in and about, and incidental to the
conveyance of [the] taxi passenger in respect of any reasonably foreseeable, in
the sense of not far-fetched or fanciful, or alternatively not insignificant risk
of injury to [the taxi passenger] arising out of the conveyance’: at [67]. The
recognised scope of the duty is to exercise reasonable care for the safety of
passenger: Crofts v Waterhouse (1825) 3 Bing 319; [1825] ER 809.
Legislation
9.65 Legislation schemes exist in all Australian jurisdictions in respect of
motor vehicle accidents. The legislation does not impose any duty of care
upon drivers but is for the purpose of achieving compensation for personal
injury arising from the use of motor vehicles. Fault-based schemes exist in the
Australian Capital Territory, New South Wales, Queensland, South Australia
and Western Australia. In general terms, these schemes operate with the
common law, imposing procedures upon claims for compensation and
limiting the types of damages that may be claimed. The legislation imposes
compulsory third party insurance upon owners of motor vehicles which then
insures any person who drives the vehicle against liability for death or
personal injury caused by their fault: Road Transport (Third Party Insurance)
Act 2008 (ACT); Motor Accidents Compensation Act 1999 (NSW); Motor
Accident Insurance Act 1994 (Qld); Motor Vehicles Act 1959 (SA); Motor
Vehicle (Third Party Insurance) Act 1943 (WA).
9.66
The Northern Territory, Tasmania and Victoria have no-fault
compensation schemes which indemnify liability for motor vehicle accidents
for personal injury if the requirements of the legislation are met: Motor
Accidents (Compensation) Act 1979 (NT); Motor Accidents (Liabilities and
Compensation) Act 1973 (Tas); Transport Accident Act 1986 (Vic).
5
Persons in Control of Others
9.67 At common law, the traditional distinction between misfeasance and
nonfeasance has meant that there is no duty to control another’s actions so as
to prevent injury to a third party. There are, however, exceptions to this
general principle. As Dixon J commented in Smith v Leurs (1945) 70 CLR 256
at 262:
The general rule is that one man is under no duty of controlling another man to prevent his
doing damage to a third. There are, however, special relations which are the source of a duty of
this nature.
9.68 A person in control of others may also owe the persons themselves an
affirmative duty of care to ensure that they come to no harm. Recognised
duties of care due to control are imposed upon:
school authorities;
parents of young children; and
prison authorities.
[page 173]
School Authorities and Students
9.69 By law, parents are required in most Australian jurisdictions to have
their children attend full-time education until reaching the first of a specified
age or completion of a specified grade: Education Act 2004 (ACT) s 9 (17
years or completes grade 12); Education Act 1990 (NSW) s 21B(3) (17 years
or completes grade 10); Education Act 1979 (NT) s 38(2) (or completes grade
10); Education (General Provisions) Act 2006 (Qld) s 9 (16 years or completes
grade 10); Education Act 1972 (SA) s 75(2a) (16 years); Education Act 1994
(Tas) s 4(1) (16 years); Education and Training Reform Act 2006 (Vic) s 1.1.3
(17 years); School Education Act 1999 (WA) s 6 (17 years and 6 months).
9.70
When a student is at school, the school is in control and acting in
place of the parent or guardian: Ramsay v Larsen (1964) 111 CLR 16; [1964]
ALR 1121. In Richards v Victoria [1969] VR 136 at 138, it was explained that:
The reason underlying the imposition of the duty would appear to be the need of a child of
immature age for protection against the conduct of others, or indeed of himself, which may
cause him injury coupled with the fact that, during school hours the child is beyond the control
and protection of his parent and is placed under the control of the schoolmaster who is in a
position to exercise authority over him and afford him, in the exercise of reasonable care,
protection from injury …
Scope of the duty
9.71 The scope of the duty of care is to exercise reasonable care and
supervision to protect students from foreseeable risks of injury: Geyer v
Downs (1978) 138 CLR 91; 17 ALR 408; Commonwealth v Introvigne (1982)
150 CLR 258 at 269; 41 ALR 577 at 586. In H v New South Wales [2009]
NSWDC 193, the plaintiff was stabbed by a fellow student on the school
grounds. As the teachers were aware of the conduct between the students
prior to the stabbing, the risk to the plaintiff was foreseeable and within the
school’s duty of care. In Gregory v New South Wales [2009] NSWSC 559, the
plaintiff successfully sued for breach of the school’s duty of care to exercise
due and proper care to prevent the mistreatment of the plaintiff by other
students while at high school. See also Australian Capital Territory Schools
Authority v El Sheik (2000) Aust Torts Reports ¶81-577.
9.72 The duty is not limited to when the student is on school premises or
the set school hours. For example, in Geyer v Downs (1978) 138 CLR 91; 17
ALR 408, the school was liable to the plaintiff who was injured on the school
grounds before school had commenced. Stephen J held that if at the time the
relationship of ‘schoolmaster and pupil’ existed, the duty of care would apply:
at CLR 94; ALR 410. In Abraham bht Abraham v St Mark’s Orthodox Coptic
College [2006] NSWSC 1107, the school was held negligent for not providing
an effective system of supervision from 7.45 am, when a significant number of
students commenced arriving at the school, until 8.30 am when classes
commenced. In Gugiatti v Servite College Council Inc [2004] WASCA 5, the
school was held to owe a duty of care to its students while on a school retreat
which took place off school grounds and outside of school hours. See also
Roman Catholic Church v Koffman (1996) Aust Torts Reports ¶81-399, where
the school’s duty of care extended to supervising the bus stop outside the high
school.
[page 174]
9.73 The duty owed by school authorities to their pupils may also extend
to school bus drivers. For example, in Jarvis v Scrase [2000] 2 Qd R 92, the
bus driver was held liable for failing to warn a child, who had just stepped off
the bus, of an approaching motor vehicle. The child was killed and the
parents successfully sued for the psychiatric injuries they suffered as a result
of the manner of their child’s death. See also Fitzgerald v Hill (2008) 51 MVR
55, where the owner and operator of an academy provided instruction in
martial arts to children as young as eight. The Queensland Court of Appeal
held that the duty owed by the academy owner was similar to that of a school
authority, and further was a nondelegable duty: see 9.75.
9.74
While the duty owed to a child by a school authority is well
established in regard to physical injuries, more problematic is whether a duty
is owed for failing to provide a child with an appropriate standard of
education. In England, it has been held that the duty does not extend to
identifying a pupil’s special learning needs: Phelps v Hillingdon London
Borough Council [2001] 2 AC 619; [2000] 4 All ER 504.2 Such claims are not
recognised in the United States, and the issue has not yet been directly
addressed in Australia. However, the Australian consumer laws may provide
a way for education institutions to be liable for failing to provide services with
due care and skill.3
Non-delegable duty
9.75 The vulnerability of children and the degree of control exercised over
them by school authorities has resulted in the school authorities’ duty of care
being classified as a non-delegable duty of care: Ramsay v Larsen (1964) 111
CLR 16; Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577; New
South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212
CLR 511; 195 ALR 412. See also Chapter 20.
School Authorities and Third Parties
9.76 School authorities owe an affirmative duty of care to supervise pupils
to prevent damage to third parties: Commonwealth v Introvigne (1982) 150
CLR 258; 41 ALR 577. This duty extends to the protection of persons
attempting to rescue pupils put in danger by a lack of supervision:
Carmarthenshire County Council v Lewis [1955] AC 549. In Carmarthenshire
County Council v Lewis, a day care centre was held liable to the estate of a
truck driver who was killed when he swerved to avoid a four-year-old girl
whose carers had allowed her to wander on to the highway.
Parent and Child
9.77 There is no principle of parent immunity for negligent supervision of
children: Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [129]; St
Mark’s Orthodox Coptic
[page 175]
College v Abraham [2007] NSWCA 185 at [31]. However, some judges have
expressed the opinion that such immunity exists based upon legal policy and
community expectations. For example, in Hoffman v Boland (by her tutor
Boland) [2013] NSWCA 158 at [16], Basten JA stated:
it is clear that questions of coherence arise in respect of an action in tort by a child against either
or both of his or her parents. However, it is not readily apparent how such issues are to be
resolved. On the one hand, it may be thought to be supportive of such legal principles to allow a
child to enforce parental obligations. On the other hand, it might be thought that to allow a
child to bring proceedings in tort against a parent might be destructive of the underlying
relationship which the law recognises, supports and seeks to maintain.
In that case, damages were sought from the grandmother of the six-monthold child for injuries suffered as a result of the grandmother falling down
stairs as she held the baby in her arms. Basten JA held that in the
circumstances no duty of care was owed, stating (at [40]) that a ‘mother owed
no duty enforceable by an action in tort in respect of her ordinary day-to-day
care of her baby; the grandmother was in a similar position and it follows that
the child’s claim against her should have failed on the basis that she owed no
duty of care enforceable in tort’. See also Robertson v Swincer (1989) 52 SASR
356 at 360–2 per King CJ.
9.78 Despite the fact that there is judicial opinion that the quality of
supervision of a child by a parent does not give rise to a duty of care, the High
Court in Hahn v Conley (1971) 126 CLR 276 is authority for the principle that
a duty may be owed in certain circumstances. In Hahn v Conley (1971) 126
CLR 276, the grandchild was in the care of the grandfather who did not notice
the child was crossing the road to him when the child was struck by a car.
Windeyer J held (at 294) that the grandfather could owe a duty of care but it
would not arise from the blood relationship but ‘from the particular
situation’.
Scope of the duty
9.79 If the ‘particular situation’ gives rise to a duty of care, which may be
due to the control the parent or guardian exercises over the child and the
child’s vulnerability (St Mark’s Orthodox Coptic College v Abraham [2007]
NSWCA 185 at [35]), the scope of that duty will be to exercise reasonable care
not to expose the child to foreseeable harm.
In St Mark’s Orthodox Coptic College v Abraham, the circumstances that
constituted the ‘particular situation’ were that the father had left his nineyear-old son at school at approximately 8.00 am when he knew, or should
have known, there was no effective system of supervision for children before
the commencement of school at 8.30 am. As Ipp JA evaluated the situation (at
[35]):
Taking a nine-year old child from his home environment and leaving him at school is conduct
that will usually involve a potential risk of harm to the child (which will vary in degree
depending on the circumstances). In my view, any parent who performs such an act may owe a
duty to the child to take reasonable care in not exposing the child to foreseeable harm in doing
so.
See also Tweed Shire Council v Howarth [2009] NSWCA 103 (parent who
took child to a place close to a source of danger came under a duty to exercise
reasonable care not to expose their child to foreseeable harm); Anderson v
Smith (1990) 101 FLR 34 (grandmother negligent in failing to secure a gate to
a swimming pool).
[page 176]
Parent and Third Party
9.80 The general rule is that the law does not impose a duty upon a person
to control the acts of another to prevent loss or harm to a third party:
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176
ALR 411. However, due to parental control, a parent may owe a duty of care
to a third party to control their children in such a manner as to prevent them
causing injury to third persons or to their property: Smith v Leurs (1945) 70
CLR 256; Cameron v Commissioner for Railways [1964] Qd R 480; McHale v
Watson (1964) 111 CLR 384.
In McHale v Watson, a 12-year-old boy threw a homemade metal dart
which accidentally hit the nine-year-old plaintiff in the eye, causing her
serious injury. The father, on his daughter’s behalf, sued both the boy and his
parents. In considering the liability of the parents, Windeyer J stated (at 386):
A parent is, generally speaking, not legally liable for the wrongdoing of his child. This is the rule
of the common law … A parent may … be liable for the consequence of his child’s wrongdoing
if his own negligence caused or provided the occasion for it. In that case the parent is not
vicariously liable: he is liable because of his own negligence.
Scope of the duty
9.81
In Smith v Leurs (1945) 70 CLR 256 at 262, Dixon J stated:
Parental control, where it exists, must be exercised with due care to prevent the child inflicting
intentional damage on others or causing damage by conduct involving unreasonable risk of
injury to others.
9.82 The duty to control children also extends to those acting in the place
of the parent. For example, in Curmi v McLennan [1994] 1 VR 513, the
defendant was held responsible for the actions of a boy whom he permitted,
along with his own son and others, to spend a weekend on his houseboat. On
the houseboat was an airgun and ammunition which were easily accessible.
The boy accidentally shot the plaintiff child who lost the sight of one eye.
Gobbo J stressed the importance of the quality of instruction given to the
boys, and said (at 522–3):
Putting to one side his own son, there was nothing to suggest that the [defendant] had made
inquiries to satisfy himself as to the prior experience or maturity of the boys in relation to the
use of firearms … In this situation, there was a duty of care owed by the [defendant] to each of
the boys who were using the houseboat and who were given access to the airgun.
Prison Authorities and Prisoners
9.83 Prison authorities owe a duty of care to prisoners and other detainees
to prevent them being injured: Howard v Jarvis (1958) 98 CLR 177; Ellis v
Home Office [1953] 2 All ER 149; Bujdoso v New South Wales (2004) 1512 A
Crim R 235. The duty arises due to the control of the authority and the
vulnerability of the prisoners: Price v New South Wales [2011] NSWCCA 341
at [35]; New South Wales v Godfrey & Godfrey [2004] NSWCA 113.
9.84 A duty will be owed by any body that has the authority to detain
people. For example, the Commonwealth owes a duty of care to those it
imprisons in immigration detention:
[page 177]
Behrooz v Secretary of the Department of Immigration and Multicultural and
Indigenous Affairs (2004) 219 CLR 486; 208 ALR 271 at [174]. In MZYYR v
Secretary, Department of Immigration and Citizenship (2012) 292 LR 659 at
[55], it was held that the Commonwealth was in a position of control and that
the detainees could not be expected to safeguard themselves from danger. It
may be that the duty of the Commonwealth is non-delegable, see AS v
Minister for Immigration and Border Protection [2014] VSC 593
(Commonwealth accepted that it owed a non-delegable duty of care to
provide reasonable healthcare to detainees, but questioned if the duty of the
Minister was also non-delegable).
Scope of the duty
9.85 The scope of the duty is that the goaler must exercise reasonable care
to avoid foreseeable risks to the prisoner: Howard v Jarvis (1958) 98 CLR 177;
New South Wales v Napier [2002] NSWCA 402; Ellis v Home Office [1953] 2
All ER 149. In SBEG v Commonwealth (2012) 208 FCR 235; 295 ALR 81 at
[19], the scope of the duty in relation to the detention of refugees was
expressed as:
an obligation of reasonable care to avoid harm to the detainee whether that harm be inflicted by
a third person or by the detainee himself or herself. The risk of harm to the detainee is not the
only matter to be considered in assessing whether reasonable care has been exercised: a
consideration which must be addressed is the need to ensure effective detention in accordance
with the law.
9.86 Risks may arise from other prisoners as well as by other means. In
Howard v Jarvis (1958) 98 CLR 177, the appellant arrested and charged Jarvis
and locked him in the cell for the night. A few hours later, the appellant was
notified that there was a fire but Jarvis was discovered dead in the cell. Jarvis’s
wife sued in negligence. Dixon FJ, Fullagar and Taylor JJ held (at 183):
We feel no doubt that … Howard [the appellant] was subject at common law to a duty to
exercise reasonable care for the safety of Jarvis [the prisoner] during his detention in custody.
He had deprived Jarvis of his personal liberty, and assumed control of his person. In arresting
and detaining Jarvis he was no doubt acting lawfully and properly and in the due execution of
his duty, but he was depriving Jarvis of his liberty, and he was assuming control for the time
being of his person, and it necessarily followed, in our opinion, that he came under a duty to
exercise care for the safety of his person during the detention.
In L v Commonwealth (1976) 10 ALR 269, the prison authority was held to
owe a duty to a remand prisoner to keep him apart from convicted prisoners
and was in breach of that duty when it placed him in a cell with two convicted
prisoners whom the authorities knew, or should have known, were prone to
violence. See also Dixon v Western Australia [1974] WAR 65.
9.87 The duty owed to prisoners should not, however, be equated to that
owed by school authorities to their pupils: Quinn v Hill [1957] VR 439. In
Nada v Knight (1990) Aust Torts Reports ¶81-032, the court held that the
duty included taking only reasonable precautions and that it was important
not to set too high a standard of care.
9.88 In England, it has been held that prison authorities owe a duty to
identify prisoners who are at special risk of taking, or attempting to take, their
own lives (Metropolitan Police
[page 178]
Commissioner v Reeves [2000] 1 AC 360; [1999] 3 All ER 897), but that there
is no duty to guard against prisoners generally committing, or attempting to
commit, suicide: Orange v Chief Constable of West Yorkshire Police [2002] QB
347.
Prison Authorities and Third Parties
9.89 Consistent with the duty of care that employers owe employees,
prison authorities owe a duty to corrective service officers and other
employees to protect them from attack by prison inmates: Ralph v Strutton
[1969] Qd R 348. In regard to third parties outside of the prison, the duty will
exist during the course of a prisoner’s escape and in the immediate vicinity of
the prison in circumstances where the prison authorities are still capable of
being able to reassert control over the escapee: New South Wales v Godfrey
(2004) Aust Torts Reports ¶81-741.
In New South Wales v Godfrey, the plaintiff was working in a Sydney
newsagency when an escaped prisoner pointed a shotgun at her and
demanded money. The plaintiff was 23 weeks pregnant at the time and eight
days after the robbery gave birth to a child who suffered disabilities as a result
of his premature birth. The robbery occurred two-and-a-half months after the
prisoner had escaped from the minimum security section of Bathurst Goal.
Spigelman CJ, with whom Sheller and McColl JJ agreed, held that it would be
‘ludicrous’ to suggest that the decision in Home Office v Dorset Yacht Co Ltd
[1970] AC 1004 supported the imposition on prison authorities of a duty in
regard to escaped prisoners which could be ‘found to encompass conduct
hundreds of kilometres from, and months after, an escape’: at [31]–[34]. See
also Lam v South Australia (2004) 234 LSJS 414; [2004] SADC 110.
9.90 Similarly, a parole board has no general duty to supervise prisoners
released on parole: X v South Australia (No 2) (2005) 91 SASR 258. In Swan v
South Australia (1994) 62 SASR 532, however, where the Parole Board had
information that, in blatant breach of his parole conditions, a paroled
paedophile was spending nights with young boys, a duty was held to be owed
to the young boys concerned.
6
Professionals
9.91 A duty of care exists between a professional and their client: Groom v
Crocker [1939] 1 KB 194; Voli v Inglewood Shire Council (1963) 110 CLR 74;
Hawkins v Clayton (1988) 164 CLR 539. Originally, it was held that if a party
to a contract suffered loss, the remedy lay only in the law of contract; but the
common law has evolved so that concurrent duties under both contract and
tort law may be owed: Astley v Austrust Ltd (1999) 197 CLR 1.
9.92 The law imposes a duty of care upon many professional relationships,
for example:
real estate agent and client (Georgieff v Athans (1981) 26 SASR 412);
valuer and client (Smith v Eric S Bush [1990] 1 AC 831);
accountant/auditor and client (Hardie (Qld) Employees Credit Union
Ltd v Hall Chadwick & Co [1980] Qd R 362);
medical professional and client (Rogers v Whitaker (1992) 175 CLR
479; 109 ALR 625); and
legal professional and patient (Heydon v NRMA Ltd (2000) 51 NSWLR
1).
[page 179]
9.93 Generally the content of the duty of care owed by a professional to a
client is to exercise reasonable care in carrying out the service or retainer to
avoid foreseeable loss. As discussed at 8.17, one of the factors which a court
takes into account when determining whether the plaintiff owes the
defendant a duty of care is the identification of the kind of harm or damage
suffered as a result of the defendant’s negligent act or omission. In
professional negligence cases, this is one of the first factors to consider when
determining whether a duty of care is owed.
9.94 If the damage suffered is physical injury, then courts will usually have
no difficulty in finding that a duty of care was owed by the professional. And
despite the general exclusionary rule against a duty being owed in regard to
pure economic loss (see 10.77), the relationship between a professional and
their client is a well-established exception to this rule, although there may be
difficult issues in regard to the scope of the duty. The situation is quite
different if a third party to the professional relationship suffers damage in the
form of pure economic loss: Hawkins v Clayton (1988) 164 CLR 539; Hill (t/as
R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 (Hill v
Van Erp); Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg)
(1997) 188 CLR 241; 142 ALR 750.
This section focuses on the established duties of care of the medical and
legal professions.
Medical Professionals
9.95 It is well established that members of the medical profession owe a
duty of care to patients: Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625;
Roe v Minister of Health [1954] 2 QB 66; Hotson v Fitzgerald [1985] 1 WLR
1036; Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871; [1985] 1
All ER 643.
9.96 The term ‘medical professional’ has been interpreted broadly and
includes doctors, dentists, surgeons, anaesthetists, pathologists, radiologists
and nurses: Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577; Hribar v
Wells (1995) Aust Torts Reports ¶81-345.
Scope of the duty
9.97 The scope of the duty owed by medical professionals was discussed by
the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 483; 109 ALR 625
at 628, where it was stated:
The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the
provision of professional advice and treatment. That duty is a single comprehensive duty
covering all the ways in which a doctor is called upon to exercise his skill and judgment; it
extends to the examination, diagnosis and treatment of the patient and the provision of
information in an appropriate case.
In Rogers v Whitaker, the High Court held the defendant medical
professionals liable because of the control they, as professionals, exercised
over their clients and because the plaintiff was dependent on the defendants’
professional judgment and skills. The plaintiff was found to be vulnerable
because she had to rely on the defendant ophthalmologist to warn her of any
risks to her good eye associated with the surgery on her blind eye. Since the
defendant did not warn the plaintiff of the one in 14,000 chance of developing
[page 180]
sympathetic ophthalmia in her good eye, the ophthalmologist was liable when
the plaintiff then developed the disease in her good eye and became blind.
This is despite the fact that there was no negligence in the carrying out of the
operation itself. The High Court held that the plaintiff’s vulnerability required
the scope of the defendant’s liability to extend beyond non-negligent
treatment to the provision of relevant warnings about the dangers of the
proposed treatment.
See also Wallace v Kam (2013) 250 CLR 375; 297 ALR 383 at [8], where it
was stated:
The common law duty of a medical practitioner to a patient is a single comprehensive duty to
exercise reasonable care and skill in the provision of professional advice and treatment. A
component of that single comprehensive duty is ordinarily to warn the patient of “material
risks” of physical injury inherent in a proposed treatment. A risk of physical injury inherent in a
proposed treatment is material if it is a risk to which a reasonable person in the position of the
patient would be likely to attach significance, or if it is a risk to which the medical practitioner
knows or ought reasonably to know the particular patient would be likely to attach significance
in choosing whether or not to undergo a proposed treatment. The component of the duty of a
medical practitioner that ordinarily requires the medical practitioner to inform the patient of
material risks of physical injury inherent in a proposed treatment is founded on the underlying
common law right of the patient to choose whether or not to undergo a proposed treatment. In
imposing that component of the duty, the common law recognises not only the right of the
patient to choose but the need for the patient to be adequately informed in order to be able to
make that choice rationally. The policy underlying the imposition of that component of the duty
is to equip the patient with information relevant to the choice that is the patient’s to make. The
duty to inform the patient of inherent material risks is imposed to enable the patient to choose
whether or not to run those inherent risks and thereby “to avoid the occurrence of the particular
physical injury the risk of which [the] patient is not prepared to accept”. [footnotes omitted]
Legislation also exists in some jurisdictions, particularly in respect of health
directives, that imposes a duty upon a medical practitioner to explain to a
patient the nature, consequences and risks of the proposed treatment and the
likely consequences if the treatment if not undertaken. See, for example,
Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 15;
Medical Treatment Act 1988 (Vic) s 5(1)(c).
Duty to third parties
9.98 A doctor may owe a duty of care to the unborn child of a patient if the
child is born suffering harm from the doctor’s negligence. In X v Pal (1991)
23 NSWLR 26, the doctor’s negligence predated conception, but, nonetheless,
the court held that the doctor owed a duty of care to the child subsequently
born. The respondent, an obstetrician and gynaecologist, was negligent in
failing to test X for syphilis during her first pregnancy. That child died and Y
was born from a second pregnancy with deformities due to the syphilis of her
mother. Clarke JA stated (at 41):
… it should be accepted that a person may be subjected to a duty of care to a child who was
neither born nor conceived at the time of his careless acts or omissions such that he may be
found liable in damages to that child.
[page 181]
9.99 If the damage claimed is the fact that the child is born, for example if
the doctor negligently failed to advise the mother of risks to the foetus,
depriving her of the choice of terminating the pregnancy, as in Harriton v
Stephen (2006) 226 CLR 52; 226 ALR 391, a ‘duty of care cannot be clearly
stated’: at [276] per Crennan J: see 12.11.
9.100 In Harvey v PD (2004) 59 NSWLR 639, the respondent and her
partner had tests carried out to determine whether either had sexually
transmitted diseases before getting married. The respondent and her partner
saw the same doctor who was informed of the purpose of the tests. The test
results of the respondent’s partner revealed he was HIV positive, but this
information was not passed on to the respondent. The respondent sued the
doctor in negligence, who claimed that due to privacy the results could not be
shared without consent. The New South Wales Court of Appeal held that the
doctor owed a duty of care to both parties and the duty included the need to
address the need for consent for disclosure of the results at the initial joint
consultation.
If the negligence of a doctor results in the patient’s partner suffering injury,
for example through contracting an infection, the scope of the doctor’s duty
may extend to that third party: see CS v Bierdrzycka [2011] NSWSC 1213,
where the plaintiff contracted HIV after two doctors in a medical practice
failed to notify the plaintiff’s partner of a positive test result. Both doctors
admitted liability in negligence.
Hospitals
9.101 A hospital owes a duty of care to its patients: Cassidy v Ministry of
Health [1951] 2 KB 343; Ellis v Wallsend District Hospital (1989) 17 NSWLR
553; Samios v Repatriation Commission [1960] WAR 219. In Albrighton v
Royal Prince Alfred Hospital [1980] 2 NSWLR 542, the appellant was
admitted to hospital for corrective surgery and became a paraplegic due to the
negligent surgery in which her spinal cord was severed. It was pointed out
that whether the hospital owed a duty of care involved an examination of the
circumstances. The evidence was that the hospital had undertaken to provide
the appellant complete medical services through its staff, chosen by the
hospital not the appellant. It was held (at 562):
The hospital, by admitting the appellant, could be regarded as undertaking that it would take
reasonable care to provide for all her medical needs; and, whatever legal duties were imposed
upon those who treated, diagnosed or cared for her needs from time to time, there was an
overriding and continuing duty upon the hospital as an organisation.
See also Roe v Minister of Health [1954] 2 QB 66.
9.102 Non-delegable duty The duty owed by a hospital to a patient is a
non-delegable duty: see Chapter 20. In Kondis v State Transport Authority
(1984) 154 CLR 672 at 686, one of the leading cases on non-delegable duties
in Australia, the High Court noted:
… undertaking an obligation to treat its patient, an obligation which carries with it a duty to use
reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the
obligation on its behalf acts without due care. … Accordingly, the duty is one the performance
of which cannot be delegated, not even to a properly qualified doctor or surgeon under a
contract for services.
[page 182]
Legal Professionals
Solicitors
9.103 Solicitors owe a duty of care to their clients to exercise reasonable
care in carrying out the terms of their retainer: Ross v Caunters [1980] Ch
297; White v Jones [1995] 2 AC 207; Heydon v NRMA Ltd (2000) 51 NSWLR
1. It is not necessary for the solicitor’s retainer to be express; it may be
implied: Stringer v Flehr & Walker (2003) Aust Torts Reports ¶81-718;
Simmons v Story [2001] VSCA 187 at [23]; Australian Energy Ltd v Lennard
Oil NL [1986] 2 Qd R 216 at 237; Pergrum v Fatharly (1996) 14 WAR 92 at 94;
Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54 at 62.
9.104 In some circumstances, a solicitor may owe a duty to an opposing
party, particularly if the solicitor goes beyond the normal role of a solicitor:
Gran Gelato v Richcliff (Group) Ltd [1992] 2 WLR 867; Al-Kandari v J R
Brown & Co [1988] QB 665 (Court of Appeal); Hardware Services Pty Ltd v
Primac Association Ltd [1988] 1 Qd R 393.
9.105
It is also possible for a solicitor to act for both parties to a
transaction, but it is discouraged by the courts: Commonwealth Bank of
Australia v Smith (1991) 102 ALR 453 at 478; Clark Boyce v Mouat [1993] 3
NZLR 641. A solicitor acting for both parties must obtain the informed
consent of both parties: Clark Boyce v Mouat; Lowy v Alexander [2000]
NSWSC 661. Informed consent means that the consent is given with the
knowledge of the conflict of interests of the parties, and that as a result the
solicitor may be disabled from disclosing to each party the full knowledge
which they possess as to the transaction or may be disabled from giving
advice to one party which conflicted with the interests of the other: Clark
Boyce v Mouat [1993] 3 NZLR 641. A solicitor acting for both parties must
exercise due care and skill in the interests of each of the parties; the interests
of one party cannot be paramount to the other: Moody v Cox & Hatt [1917] 2
Ch 71. Should a conflict arise that places the solicitor in the position of not
being able to meet the duty of care owed to both of the parties, the solicitor
should cease acting for either one, or both, of the parties: Stewart v Layton
(1992) 111 ALR 687 at 712.
9.106 The established duty of a solicitor is owed to the client; however, the
law has recognised that in some cases a solicitor may owe a duty of care to a
third party: Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159;
142 ALR 687 (solicitor owed duty to disappointed beneficiary). This is a novel
duty and is discussed at 10.97.
Scope of the duty
9.107
A solicitor must exercise due care, skill and diligence to carry out the
terms of his or her retainer. The scope of the duty will depend upon the terms
of the solicitor’s retainer and any other assumed responsibility: Heydon v
NRMA Ltd (2000) 51 NSWLR 1 at [146]. See also Moss v Eagleston [2014]
NSWSC 6 (solicitor’s duty of care was restricted to drafting the statement of
claim for breach of contract, not to advise as to possible actions in defamation
or misleading or deceptive conduct).
In Hawkins v Clayton (1988) 164 CLR 539 at 579, the High Court held that
because a solicitor’s duty is founded in both contract (the retainer) and tort,
the scope of the duty includes going
[page 183]
beyond the specific terms of the retainer if it is necessary to avoid a real and
foreseeable risk of economic loss for the client. In May v Mijatovic (2002) 26
WAR 95 at [131] it was held:
The duty of care may require the taking of positive steps beyond the specifically agreed
professional task where those steps are necessary to avoid a real and foreseeable risk of loss.
9.108
It has been accepted that the scope of a solicitor’s duty may include:
a duty to warn a client of inherent risks that the client is not aware of
(Capebay Holdings Pty Ltd v Sands [2002] WASC 287 — solicitors in
breach of duty by failing to explain the financial consequences of a
building encroachment);
a duty to advise the client of all terms that may be important and
influence the client’s decision in entering into the contract when
advising on a contract (Sykes v Midland Bank Executor & Trustee Co
Ltd [1971] 1 QB 113 — solicitor in breach of duty by failing to advise
that a term of the contract allowed the head lessor to unreasonably
withhold consent to a subletting); and
a duty to fully advise of all possible outcomes to allow the client to
make an informed decision as to whether to proceed with a course of
action: Hyland v Campbell (1995) Aust Torts Reports ¶81-352 —
solicitors breached their duty by not pleading an action correctly and
failing to warn of the possibility of not recovering damages.
In Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515, the plaintiff mortgagee
suffered loss when the valuation of the secured property was incorrect and
therefore the true value was far less than was stated in the property valuation.
The mortgagor and valuer were bankrupt, so the plaintiff sought damages
from its solicitors claiming negligence for the failure to advise that the
mortgagor’s statement of assets and liabilities was incorrect and they were
unable to service the loan. The court noted that the duty of a mortgagee’s
solicitor is ‘ordinarily confined to matters within the scope of the lender’s
interest that the solicitor was engaged to protect, which appears from the
retainer’ and for a loan transaction involves ‘obtaining a valid and enforceable
security’: at [36]. After reviewing the authorities, Brereton J held (at [38]):
Absent specific instructions, the scope of a lender’s solicitor’s responsibility includes the
legal efficacy of the security, but not its value, nor the creditworthiness of the borrower;
However, a solicitor is bound to report to the client matters discovered — or that ought
to have been discovered — in the course of investigating title and preparing for
completion, that a reasonably competent solicitor would regard as such as might cause
the lender to doubt the correctness of the valuation, or some other ingredient of the
lending decision.
9.109 Therefore, a solicitor will not usually be expected to advise a client as
to the commercial efficacy of a transaction unless it is part of their retainer to
do so: Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515; Littler v Price [2005] 1
Qd R 275 cf Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642. See also
Amadio Pty Ltd v Henderson (1998) 81 FCR 149 (solicitor advising on lease
should have advised on absence of a clause to prevent the rent from
decreasing upon review); Burke v LFOT Pty Ltd (2002) 209 CLR 282
(conveyance of commercial property subject to a lease, held that the solicitor
should have advised
[page 184]
client to make inquiries of financial standing of lessees). See also Robert Bax
& Associates v Cavenham Pty Ltd [2012] QCA 177.
Barristers
9.110 The legal profession has traditionally been divided into barristers or
counsel undertaking litigious or court work as advocates, and solicitors
undertaking general legal work including preparation of cases for trial. Not all
jurisdictions have a divided profession. In some states, such as Victoria, the
roles of barristers and solicitors have been fused. Even in jurisdictions which
retain a divided profession, the division between the two branches of the legal
profession is often blurred; barristers undertake general advisory work
unconnected with litigation and solicitors act as advocates.
9.111 Unlike between a solicitor and a client, there is no contractual
relationship between a barrister and client, or between a solicitor and
barrister. At common law, a barrister, or solicitor acting as an advocate, is
also immune to being sued in negligence for anything done in court or in the
course of the conduct of litigation: Rondel v Worsley [1969] 1 AC 191; Rees v
Sinclair [1974] 1 NZLR 180; Biggar v McLeod [1978] 2 NZLR 9; Feldman v A
Practitioner (1978) 18 SASR 238. The barristers’ immunity at common law is
based upon the fundamental policy consideration that the administration of
justice would be impaired if barristers were made accountable in negligence
for litigious work. The immunity extends to the work of advocates in fused
legal professions where no formal distinction is drawn between barristers and
solicitors: Rees v Sinclair; Feldman v A Practitioner; Giannarelli v Wraith
(1988) 165 CLR 543; 81 ALR 417.
9.112 The reasons for the immunity, sometimes referred to as a ‘no duty’
situation, were discussed by the High Court in Giannarelli v Wraith (1988)
165 CLR 543; 81 ALR 417, where a majority of the High Court held that s
10(2) of the Legal Profession Act 1958 (Vic) did not displace the common law
immunity of a barrister (or a solicitor acting as an advocate) in respect of
work done ‘in court’ and of work done ‘out of court’ leading to a decision
affecting the conduct of the case. Their Honours also confirmed that the
immunity rested on policy considerations such as the barrister’s overriding
duty to the court and the undesirability of exposing court decisions to
collateral attack by negligence actions against advocates. See also Keefe v
Marks (1989) 16 NSWLR 713 at 718.
9.113
The issue of the immunity has been revisited in the United
Kingdom, New Zealand and Australia. In the United Kingdom, in Arthur J S
Hall & Co (a firm) v Simons [2002] 1 AC 615; [2000] 3 All ER 673, the House
of Lords abolished the immunity of the barrister in both civil and criminal
proceedings. Their Lordships considered there was no real basis for the
argument that barristers would constantly be sued in negligence as, under
normal principles, if the barrister was bona fide in his or her dealings, no
liability would be found. Similar reasoning underpinned the New Zealand
decision of Lai v Chamberlains [2005] 3 NZLR 291, when the Court of Appeal
held that, in respect of civil cases, a barrister should be assessed against the
standard of a reasonably competent practitioner, abolishing the traditional
immunity.
[page 185]
9.114 In Australia, the opportunity to reconsider the immunity arose in
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92, where,
by a 6:1 majority, the High Court confirmed that the traditional immunity of
barristers continues to apply in Australia: see [96]–[103] per McHugh J. Kirby
J, the sole dissent, rejected the need for the immunity, approving the House of
Lords decision of Arthur J S Hall & Co (a firm) v Simons. See also the strong
dissent by Deane J in Giannarelli v Wraith (1988) 165 CLR 543 at 588; 81
ALR 417 at 445–6.
9.115 The immunity applies to what the advocate does in court and in the
course of the conduct of the litigation. Recently there have been cases which
examine whether particular acts fall within the conduct of litigation. In
Stillman v Rusbourne [2015] NSWCA 410, the court considered whether
advice given after court-appointed mediation to accept an offer of settlement
was within the advocate’s immunity. A majority of the court held that the
immunity applied. Gleeson CJ held (at [60]) that the advice as to the
mediation was ‘work done out of court affecting the conduct of the case in
court’. Simpson JA (at [71]) held that although mediation was not an exercise
of judicial power, it was ‘a step in the process towards the exercise of judicial
power’. Basten JA dissented, holding that as consent orders had been entered
into before the trial commenced, and as there was no judicial determination
of the case on its merits, the advocate’s immunity did not apply. The High
Court in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1, held that
advice given on a settlement during the course of a trial did not attract
immunity. The court stated (at [52]):
… the public policy which justifies the immunity is not concerned with the desirability or
otherwise of settlements, but with the finality and certainty of judicial decisions.
Legislation
9.116 The common law duty of a solicitor is reflected in the Australian
Solicitors Conduct Rules. Rule 4.1 provides that a solicitor must:
4.1.1 act in the best interest of the client in any matter in which the solicitor represents the
client;
…
4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible.
9.117 The Australian Solicitors Conduct Rules provide disciplinary action
for unsatisfactory professional conduct and professional misconduct and
apply in addition to the common law: Australian Solicitors’ Conduct Rules r
2.2. ‘Professional misconduct’ includes conduct that involves a ‘failure to
reach or maintain a reasonable standard of competence and diligence’:
Glossary of Terms.
9.118 The legal profession legislation also provides for the regulation of
legal practice and imposes consequences for unsatisfactory professional
conduct and professional misconduct. See Legal Profession Act 2006 (ACT);
Legal Profession Uniform Law Application Act 2014 (NSW); Legal Profession
Act 2006 (NT); Legal Profession Act 2007
[page 186]
(Qld); Legal Practitioners Act 1981 (SA); Legal Profession Act 2007 (Tas);
Legal Profession Uniform Law Application Act 2014 (Vic); Legal Profession
Act 2008 (WA).
7
Manufacturers of Goods
9.119 When Mrs Donoghue brought her action against Mr Stevenson, she
was seeking compensation for the physical injury — the nausea and vomiting
— caused by a defective bottle of ginger beer: Donoghue v Stevenson [1932]
AC 562. She was not seeking recovery of the money paid for the snailcontaminated bottle of ginger beer. This section deals with defective products
causing physical damage to a person or property, not the decrease in the value
of the product itself.
9.120 A defective product may also cause pure economic loss taking it
outside the scope of the established duty: see Perre v Apand Pty Ltd (1999)
198 CLR 180; 164 ALR 606; Swick Nominees Pty Ltd v Leroi International Inc
(No 2) [2015] WASCA 35. However, it is more common that these actions are
brought under the Australian Consumer Law, formerly the Trade Practices
Act 1974 (Cth), discussed at 9.127.
9.121 Prior to the decision in Donoghue v Stevenson [1932] AC 562, the
law of contract offered the only source of compensation for injuries caused by
defective products: see 1.41. The common law did, however, recognise an
exception to this general rule where products were inherently dangerous,
such as explosives. The manufacturers or persons in control of these
inherently dangerous products were held strictly liable for any damage
caused, independently of the law of contract: Dixon v Bell (1816) 1 Stark 87;
171 ER 475. Such a person was also strictly liable for any damage caused to
persons or their property by the escape of an inherently dangerous product:
Rylands v Fletcher (1866) LR 1 Ex 265. The exception did not extend,
however, to products which were inherently innocent, but made dangerous
because of the manner in which they were used.
9.122
In Donoghue v Stevenson, the House of Lords decided that a
manufacturer of a defective product, even if inherently innocent, could be
made liable in tort to a person injured by the use of that product, even in the
absence of contractual privity. Ironically, this resulted in the distinction
between inherently dangerous and innocent products becoming obsolete;
both now only required the taking of reasonable care in their manufacture
and use: Read v Lyons & Co Ltd [1947] AC 156; Anderson v Enfield City
Corporation (1983) 34 SASR 472; Todman v Victa Ltd [1982] VR 849.
Nevertheless, an inherently dangerous product will require a higher standard
of care in its manufacture, use, transportation, etc: Adelaide Chemical
Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514; Anderson v Enfield City
Corporation; Todman v Victa Ltd. This was conceded by the majority of the
High Court in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR
520 at 554 when they stated:
… depending upon the magnitude of the danger, the standard of “reasonable care” may involve
“a degree of diligence so stringent as to amount practically to a guarantee of safety”.
9.123 It is not only manufacturers who owe a duty of care in regard to
defective products. Everyone involved in the chain of distribution to the
ultimate user of the product may owe a duty of care to a person who is
injured, or whose property is damaged, by a defective
[page 187]
product. In Brand v Bardon [1997] NSWCA 48, it was held that the appellant
owed a duty of care to the respondent, applying the principles of Donoghue v
Stevenson [1932] AC 562, even though they were the importer and distributor
of the goods. Other parties who may be owed a duty of care include:
A retailer or supplier is under a duty of care to warn of any dangerous
qualities of a product which are not a matter of common knowledge
and which are known to the supplier: Clarke v Army & Navy Cooperative Society Ltd [1903] 1 KB 155; Laundess v Laundess (1994) 20
MVR 156 (reasonable foreseeability is not sufficient); McPherson’s Ltd
v Eaton (2005) 65 NSWLR 187. Even in the case of a gift, the donor
may be under a duty to warn of latent defects which are known to the
donor: MacCarthy v Young (1861) 6 H & N 329; 158 ER 136.
A person who supplies a defective article for a particular use may be
liable for injuries caused to a person arising from the unfitness of the
product for that use: Heaven v Pender (1883) 11 QB 503; Graham
Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 54; 196 ALR 337.
A person who is injured by the negligent installation of a product has a
remedy against the installer under the general principle of Donoghue v
Stevenson, and in the case of the installation of dangerous products, the
standard may be higher: Dominion Natural Gas Co Ltd v Collins [1909]
AC 640.
A bailee owes a duty of reasonable care to a bailor: Tottenham
Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts
Reports ¶81-292.
Liability may be imposed upon anyone who renders a product
dangerous or fails to make it safe, and this will extend to repairers
(Haseldine v Daw [1941] 2 KB 343; Jull v Wilson & Horton [1968]
NZLR 88) and assemblers, erectors and distributors: Watson v Buckley
[1940] 1 All ER 174.
Where a public official has a duty to inspect a product, such as a motor
vehicle, and to take some action on which others may rely (for
example, issuing a statement such as a roadworthiness certificate for
the motor vehicle), the official may be liable if the user is subsequently
injured as a result of a defect which should have been discovered by the
inspection: Rutherford v Attorney-General [1976] 1 NZLR 403:
compare Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540;
196 ALR 337.
There is also no limit on the types of products which may be the subject of
a defective product action: Thompson v Johnson & Johnson Pty Ltd [1991] 2
VR 449.
Scope of the Duty
9.124 In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 at
[29], McHugh J said:
It is beyond doubt that a manufacturer of any product owes a duty to a consumer to take
reasonable care to prevent the product causing injury or loss to the consumer.
In Donoghue v Stevenson [1932] AC 562, the House of Lords held that a
manufacturer of products owes a duty to the consumer to take reasonable
care when:
[page 188]
the product is sold in such a form as to show that it is intended that it
reach the ultimate consumer in the form in which it left the
manufacturer;
there is no reasonable possibility of intermediate examination; and
it is reasonably foreseeable that the absence of reasonable care in the
manufacture of the product will result in injury to the consumer.
In Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA
35 at [131], the scope of the duty of a manufacturer was described as the
exercise of reasonable skill and diligence ‘in the design and manufacturing
process to produce a machine that is able reliably to perform its ordinary
functions’.
9.125 A manufacturer must take all reasonable precautions to prevent
injury to any person it can reasonably be foreseen could use the product
without intermediate inspection: Donoghue v Stevenson [1932] AC 562; Grant
v Australian Knitting Mills Ltd [1936] AC 85; Suosaari v Steinhardt [1989] 2
Qd R 477.
9.126 Reasonable precautions may include the need to provide a warning:
Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48; Streets Ice Cream
Pty Ltd v Australian Asbestos Installations Pty Ltd [1967] 1 NSWR 50. In
Brand v Bardon [1997] NSWCA 48, the respondent ordered a face cream for
sensitive skin from the appellant, indicating at the time of sale that she
wanted it for sensitive skin. The cream caused a rash which then blistered and
scarred. The appellant relied upon the decision of Levi v Colgate-Palmolive
Pty Ltd (1941) 41 SR (NSW) 48 at 52, where Jordan CJ stated:
Where the act is incapable of injuring an ordinary normal person, the person who does it owes
no duty to do more by reason only of the possibility that a person of abnormally accentuated
susceptibility may be affected by it. Special circumstances may, of course, give rise to a duty to
take special precautions to avoid injury to particular abnormal persons known to be likely to be
affected by a particular act; but the mere fact that abnormal persons exist in the community does
not alter the general standards by which rights and duties are established … Persons who trade
in and supply ordinary foodstuffs and articles of ordinary domestic use are, in my opinion,
subject to no duty to issue warnings that the use of such articles may cause discomfort or injury
to abnormal persons who may be allergic to them.
However, in Brand v Bardon [1997] NSWCA 48, the Court of Appeal held
that there were ‘special circumstances’ in the case before it as the respondent
had indicated the cream was for sensitive skin and therefore the content of
the appellant’s duty of care included providing a warning.
Legislation
9.127 Despite the advances in consumer protection which resulted from
the decision in Donoghue v Stevenson [1932] AC 562, identifying the
appropriate defendant(s), establishing a breach of the duty of care and
bringing an action against defendants outside the jurisdiction still posed
insuperable hurdles for many plaintiffs injured by defective products. These
difficulties were considerably reduced by the Trade Practices Act 1974 (Cth),
most significantly by Pt VA of the Act. However, the rights of action arising
in negligence were not affected.
[page 189]
9.128 The Competition and Consumer Act 2010 (Cth), replacing the
Trade Practices Act, contains in Sch 2 the Australian Consumer Law. Chapter
3, Pt 3-5 of the Australian Consumer Law provides for liability of
manufacturers for goods with safety defects.
To bring an action under Pt 3-5, the defendant must be ‘a manufacturer’
(defined in Sch 2, s 7) and the goods must have a ‘safety defect’. Section 9(1)
of Sch 2 provides that:
… goods have a safety defect if their safety is not such as persons generally are entitled to expect.
Matters to be taken into account when applying this standard include (Sch
2, s 9(2)):
the presentation of the product (manner of presentation, existence of
warnings, instructions, etc);
what might reasonably be expected to be done with or in relation to
the product; and
the time at which the product was supplied by its producer to another
person.
The four substantive provisions providing a remedy for ‘consumers’ under
the Australian Consumer Law for goods with safety defects are:
s 138 (injuries suffered by an individual);
s 139 (certain losses suffered by others as a result of those injuries);
s 140 (certain losses suffered by persons as a result of destruction of or
damage to goods caused by the defective goods); and
s 141 (certain losses suffered by persons as a result of destruction of or
damage to land, buildings or fixtures).
To be able to bring an action under the Australian Consumer Law, the
plaintiff must have suffered death or personal injury, or damage to property
(other than the product itself) which is of a kind ordinarily acquired for
personal, domestic or household use. The loss or damage suffered must not
have resulted solely from the product being used unreasonably.
If the loss suffered by a person claiming damages is caused by the defect
and their own act or omission, s 137A of the Competition and Consumer Act
2010 (Cth) requires that the ‘amount of the loss or damage is to be reduced to
such extent (which may be to nil) as the court thinks fit having regard to that
individual’s share in the responsibility for the loss or damage’.
9.129 An action for damage caused by goods with a safety defect may lie
against (Sch 2, s 7(1)):
the manufacturer or producer of the product;
any person who, by putting his or her name, trade mark or other
distinguishing features on the product, represents himself or herself as
its manufacturer or producer;
the importer where the manufacturer or producer is located outside
Australia; or
each person in the supply chain if the manufacturer or producer
cannot be identified, unless, within a reasonable time, that supplier can
identify the manufacturer or producer or the person from whom the
product was acquired.
9.130 A person suffering loss from safety defect goods must bring the
action within three years from becoming aware, or ought to have been aware,
of the loss, the safety defect and
[page 190]
the identity of the manufacturer: Sch 2, s 143(1). Section 143(2) provides that
an action cannot be brought 10 years after the supply of the goods by the
manufacturer.
For defences, see Sch 2, s 142.
Further Reading
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 7.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 7.
1.
W R Cornish and G N Clark, Law and Society in England 1750–1950, Sweet & Maxwell, London,
1989, p 485.
2.
For the situation in Australia, see I M Ramsay, ‘Educational Negligence and the Legalisation of
Education’ (1998) 11 UNSWLJ 11.
3.
See S Corones, ‘Consumer Guarantees and the Supply of Educational Services by Higher
Education Providers’ (2012) 35 UNSWLJ 1. The author argues that the provision of educational
services by a university is engagement in trade or commerce: at 6–7.
[page 191]
Chapter 10
Novel Duties of Care
1
Introduction
10.1 The majority of negligence actions will be based upon an established
duty of care: Tame v New South Wales; Annetts v Australian Stations Pty Ltd
(2002) 211 CLR 317; 191 ALR 449. The law has little trouble in recognising a
duty is owed when there is physical damage and consequential loss: Tame v
New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317;
191 ALR 449 at [15].
10.2 It is when a plaintiff claims other forms of damage in negligence that
the courts must identify whether a duty is owed outside the well-established
duties of care. The precise identification of the loss may be significant because
the harm for which compensation is being sought must be in relation to the
violation of a recognised legal right, otherwise no duty of care will be
recognised by the courts: Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404
at [64]. As Ipp JA commented in Harriton v Stephens (2006) 226 CLR 52; 226
ALR 391 at [239]:
It is impermissible in law to separate “harm” from the concept of “duty of care”. The
proposition that actionable negligence is separate from proof of legally recoverable damage is
contrary to the established principle that damage is the gist of the cause of action in negligence.
Spigelman CJ commented, in the same case, that in a problematic case the
preferable starting point is ‘the identification of the loss which the [plaintiffs]
have suffered and the determination of whether there was a duty with respect
to that kind of loss’: at [11].
Apart from personal injury and physical property damage, a plaintiff may
suffer pure psychiatric injury (injury that is not a consequence of their
personal injury) or pure economic loss (not a consequence of any property
damage) as a result of negligence. A plaintiff claiming either of these types of
damage must argue that a novel duty of care is owed to them. If the
relationship between the plaintiff and defendant falls within one of the
established duties of care, but the loss suffered is either pure psychiatric injury
or pure economic loss, the relationship is treated as novel as it must be
questioned whether the scope of the duty extends to protect against such loss:
see 9.5.
10.3 Further, due to policy grounds, for example the need to maintain
coherency in the law, if a plaintiff alleges negligence against a public
authority, it is treated as a novel duty, even if the loss suffered by the plaintiff
is personal injury or physical property damage.
[page 192]
10.4 This chapter examines the historical and current approaches of the
courts in determining whether a duty of care is owed in a novel situation. It
also discusses the novel duty of care in respect of:
pure psychiatric injury;
pure economic loss:
–
relational loss (loss arising from damage to third party property);
–
negligent provision of services;
–
defective structures; and
public authorities.
Pure economic loss resulting from misrepresentation is considered in
Chapter 19.
Although categorised as novel, a body of case law exists in respect of each,
identifying what in particular could influence a court in holding that a duty of
care exists. Therefore, for each category of novel duty, the cases will be
examined and these particular factors highlighted.
2
Historical Summary
10.5 Novel duties provide a legally more challenging situation mainly due
to the fact that there is no simple test to determine whether a duty is owed. A
variety of approaches to novel duties have developed and changed over the
years since the decision of Donoghue v Stevenson [1932] AC 562. However, all
approaches have been based upon Lord Atkin’s ‘neighbour’ principle and two
fundamental principles of the law:
1.
the need for certainty in the law; and
2.
the need for the law to be able to adapt to, and reflect, changes in
society.
The need for certainty in the law is often referred to as the ‘bright-line’ of
certainty. As Brennan J commented in Bryan v Maloney (1995) 182 CLR 609
at 653; 128 ALR 163 at 191:
… the law should be capable of application in solicitors’ offices. It should not have to await
definition in litigation.
A lack of certainty in the law has the potential not only to bring the law
into disrepute but also to create economic inefficiencies, especially in
commercial contexts and those other situations where it is usual to arrange
insurance to cover any potential liability in negligence. If the existence of a
duty of care is uncertain, then potential defendants may over- or underinsure.
The second fundamental principle is important, as McHugh J commented
in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [92]:
While [abiding by precedent] is a sound policy because it promotes predictability of judicial
decision and facilitates the giving of advice, it should not always trump the need for desirable
change in the law. In developing the common law, judges must necessarily look to the present
and to the future as well as to the past.
Also relevant is the need for the common law to be responsive to scientific,
medical and technological developments: Cattanach v Melchior (2003) 215
CLR 1; 199 ALR 131. Kirby J commented in Harriton v Stephens (2006) 226
CLR 52; 226 ALR 391 at [86]:
[page 193]
The problem in the present case is, in large part, an outcome of new technology that permits
genetic and other tests to identify grave foetal defects in utero and medical and social changes
that permit abortions to occur in some such cases that once would have been impossible,
unprofessional or even criminal. To apply logic alone would be to defy the wisdom of the law in
responding to a novel problem. It is necessary to draw on past examples expressed in very
different circumstances. But it is also necessary to adapt those principles to the circumstances of
the present case in the present time.
The fact that the Australian High Court is able to overturn its own previous
decisions is a recognition of the need for adaptability, but the reluctance of
the court to do so acknowledges the countervailing importance of the need
for certainty in the law.
10.6 In addition to these two fundamental principles of the common law,
when making a decision as to whether a duty of care exists in a novel fact
situation, a court also has to take into account the respective roles of courts
and parliaments in law-making. As Gleeson CJ noted in Brodie v Singleton
Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180
ALR 145 at [31] (Brodie):
Legislation and the common law are not separate and independent sources of law; the one the
concern of parliaments, and the other the concern of courts. They exist in a symbiotic
relationship.
The decision in Brodie itself illustrates the tension which may arise between
the respective law-making roles of the courts and parliament and of
reconciling the fundamental principles of the need for certainty and of the
need for adaptability in the law.
In Brodie, the central issue was whether the rule that a highway authority
was not liable for a failure to repair a highway — the ‘highway rule’ — should
be maintained or judicially re-expressed. Agreeing with the joint judgment of
Gaudron, McHugh and Gummow JJ, Kirby J stated in support of the reexpression of the rule:
The criticisms of the rule … demand the conclusion that it is unprincipled and anomalous in
character and elusive and disputable in operation. It does not even have the merit of certainty …
This is not, therefore, a rule that has simply been overtaken by social change or other advances
in legal doctrine: at [277].
The three justices in dissent (Gleeson CJ, Hayne and Callinan JJ)
acknowledged the deficiencies in the content and application of the ‘highway
rule’ but, ultimately, decided that any change should be the province of
parliaments, not the courts. For example, Hayne J concluded that:
The solution to that problem lies in the hands of the legislatures, not the courts. It is the
legislatures which create the authorities. It is they who provide for the powers, duties and
resources of the authorities. It is they who can most readily regulate when and to what extent
individuals who suffer injury may recover from the authorities concerned: at [336].1
[page 194]
10.7 The difficulty in defining a unifying principle to identify a duty of
care was noted by Hayne J in Annetts v Australian Stations Pty Ltd (2002) 211
CLR 317; 191 ALR 449 at [250]:
“Neighbourhood”, “proximity”, the so-called “tripartite” test said to be derived from Lord
Bridge’s speech in Caparo Industries Plc v Dickman [[1990] 2 AC 605 at 617–18; [1990] 1 All ER
568 at 573–4], “vulnerability”, “general reliance” are all different attempts that have been made
to identify a satisfactory means of describing or defining the circumstances in which a duty of
care should be found to exist. At least some of these tests have now been rejected as either being
insufficiently informative or being inadequate to provide coherence in this area of the law. None
has proved to be an all-embracing explanation for the way in which the law has developed and is
developing. [footnotes omitted]
Reasonable Foreseeability
10.8 In the cases decided in the decades immediately after the decision in
Donoghue v Stevenson [1932] AC 562, Lord Atkin’s explanation of the
‘neighbour’ principle at 580 (see 8.11) was interpreted as establishing
‘reasonable foreseeability’ as being the appropriate test for establishing
whether a duty of care existed in novel fact situations: Bourhill v Young [1943]
AC 92. The test was explained as requiring only a general foreseeability of the
kind of event that happened and not the precise sequence of events:
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220; Chapman v
Hearse (1961) 106 CLR 112.
Since the reasonable foresight test alone could not be applied in every case
to determine the existence of a duty, there was clearly some other relevant
factor in deciding this question. It is now acknowledged that the additional
factor is judicial policy, discussed below at 10.32.
The Anns Approach
10.9 The need to accommodate and acknowledge policy considerations led
to a reformulation of Lord Atkin’s test by Lord Wilberforce in Anns v London
Borough of Merton [1978] AC 728 (Anns), building upon comments by Lord
Diplock in Home Office v Dorset Yacht Co Ltd [1970] AC 1004.
According to the ‘Anns approach’, the existence of a duty of care depended
upon a two-stage test:
first, was the harm reasonably foreseeable?; and
second, if it was, were there any policy grounds on which the law
should negate, or limit, the scope of the duty?
Lord Wilberforce attempted to bring policy out from its influential but
closeted existence by overtly recognising policy as the second stage in a twotiered approach to the duty of care question.
10.10 The general approach in Anns, and its specific application in local
authority cases, was initially accepted by Australian courts: Minister
Administering the Environmental Planning and Assessment Act 1979 v San
Sebastian Pty Ltd [1983] 2 NSWLR 268; Clarke v President, Councillors and
Ratepayers of the Shire of Gisborne [1984] VR 971; Travis v Vanderloos (1984)
54 LGRA 268 at 272. This acceptance was mirrored in other jurisdictions,
particularly in New Zealand (for example, in Takaro Properties Ltd v Rowling
[page 195]
[1978] 2 NZLR 314), and in Canada (for example, in Nielsen v City of
Kamloops 10 DLR (4th) 641 (1984)).
10.11 But the approach was not without its critics, particularly with regard
to the ease of satisfaction of the first stage, based, as it then appeared to be,
purely upon the factual test of reasonable foresight. The appropriateness of an
assumed prima facie duty for every category of case was, furthermore,
questionable. Consequently, during the 1980s and 1990s, some members of
the Australian High Court turned to the degree of proximity in the
relationship between the plaintiff and defendant as a means of determining
whether a duty of care should be owed in novel categories of case.
The Proximity Approach
10.12 The use of proximity as a unifying principle in the recognition of a
duty of care in novel fact situations was advocated by Deane J, with whom
Gibbs CJ agreed, in the pure psychiatric injury case of Jaensch v Coffey (1984)
155 CLR 549; 54 ALR 417. Deane J stated (at CLR 584; ALR 444):
[Proximity] involves the notion of nearness or closeness and embraces physical proximity (in
the sense of space and time) between the person or property of the plaintiff and the person or
property of the defendant, circumstantial proximity such as an overriding relationship of
employer and employee or of a professional man and his client and causal proximity in the
sense of the closeness or directness of the relationship between the particular act or cause of
action and the injury sustained …
His Honour explained the important feature of proximity as being a
‘continuing general limitation or control of the test of reasonable
foreseeability’: at CLR 584; ALR 443. The control was not to operate upon the
individual case but rather upon the category of case into which the individual
case fell. After the reasonable foreseeability of the kind of harm requirement
was satisfied, the proximity approach comprised two stages:
1.
an assessment of the degree of closeness of the relationship between
the plaintiff and defendant including:
(a) physical proximity (in terms of time and space);
(b) circumstantial proximity (such as the overriding relationship
of employer and employee or professional and client); and
(c) causal proximity between the particular act or course of action
and the injury; and then
2.
an evaluation of the legal consequences of that assessment.
Policy considerations could be articulated in conjunction with the first
stage for the particular category of relationship, leaving the opportunity for
further exclusion on different, more general policy grounds at the second
stage.
10.13 Proximity was used by the High Court in a number of difficult duty
cases in the intervening decade to 1995. See, for example, Jaensch v Coffey
(1983) 155 CLR 549; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160
CLR 16; 63 ALR 513; San Sebastian Pty Ltd v Minister Administering the
Environmental Planning and Assessment Act 1979 (1986)
[page 196]
162 CLR 340; 68 ALR 161; Gala v Preston (1991) 172 CLR 243; 100 ALR 29;
and Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163. In none of these
cases, however, did the justices relying on proximity articulate the detailed
steps in the process initially outlined as a two-stage process. Instead, the
application of the proximity test in actual cases led to the conclusion that
proximity was being used simply as a formula to announce a result, and not
as an explanation of how the steps in that process led to that result.
10.14
It was not surprising, therefore, that after changes in the
composition of the High Court in 1995 and 1996 (particularly the retirements
of Mason CJ and Deane J), when the court was next required to consider
whether a duty of care was owed in a novel fact situation, there was less
enthusiasm for the concept of proximity. In Hill (t/as R F Hill & Associates) v
Van Erp (1997) 188 CLR 159; 142 ALR 687 (Hill v Van Erp), in which the
critical issue was whether a solicitor can owe a duty to the beneficiary under a
client’s will, the majority of the justices either redefined the role of proximity
or entirely rejected the role previously claimed for the concept. For example,
McHugh J commented (at CLR 210; ALR 725):
The use of the concept or principle of proximity as the criterion of duty has not increased the
predictability of judicial decisions or given a real explanation of the grounds upon which a duty
of care is imposed in many economic loss cases … the present case has reinforced my scepticism
as to whether the concept of proximity gives any real guidance in determining the existence of a
duty of care in difficult and novel cases.
The Caparo Approach
10.15
Related to the proximity approach is the three-stage Caparo
approach, identified by Lord Bridge of Harwich in Caparo Industries Plc v
Dickman [1990] 2 AC 605 at 617–18:
The first stage requires, in common with all approaches, determining
whether the kind of damage to the plaintiff was a reasonably
foreseeable result of the defendant’s negligence.
Second, if the damage was foreseeable, then a determination of
whether the relationship between the plaintiff and the defendant is
sufficiently proximate to justify the imposition of a duty of care is
required.
The third and final stage requires a consideration of whether it is ‘fair,
just and reasonable’ to impose a duty of care in the particular
circumstances of the case.
In Australia, the main advocate of the Caparo approach was Kirby J in
cases such as Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147;
Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; and Crimmins v
Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1.
However, it did not attracted the support of other members of the High
Court, and in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404, both the
proximity and Caparo approaches were rejected in the single joint judgment
of Gleeson CJ and Gaudron, McHugh, Hayne and Callinan JJ:
The formula is not “proximity”… It expresses the nature of what is in issue, and in that respect
gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion
its utility is limited … That is so, whether it is expressed as the ultimate test of a duty of care,
[page 197]
or as one of a number of stages in an approach towards a conclusion on that issue. What has
been described as the three-stage approach of Lord Bridge of Harwich in Caparo Industries Plc v
Dickman does not represent the law in Australia: at [48]–[49].
See also Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [48];
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337 at
[232]ff; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR
515; 205 ALR 522 at [158]; Harriton v Stephens (2006) 226 CLR 52; 226 ALR
391 at [62]–[63].
The Incremental Approach
10.16
At the same time that Deane J was developing the proximity
approach, Brennan J, in the same court and in the same cases, was advocating
the ‘incremental approach’ as the replacement for the Anns two-stage
approach. This approach rejects the proposition that there is a ‘unifying
principle’ or ‘some general conception of relations giving rise to a duty of
care’. For example, in Sutherland Shire Council v Heyman (1985) 157 CLR
424 at 481; 60 ALR 1 at 43–4, Brennan J stated that it was preferable:
… that the law should develop novel categories of negligence incrementally and by analogy with
the established categories rather than by a massive extension of a prima facie duty of care
restrained only by indefinable “considerations which ought to negative or to reduce or limit the
scope of the duty or the class of person to whom it is owed”.
10.17 While there are variations of the incremental approach,2 an essential
feature of the approach is the rejection of the concept that novel cases can be
decided by the application of a broad unifying principle of liability such as
proximity. Instead, the approach advocates:
first, that the law should develop incrementally; and
second, that there are different ‘pockets’ or categories of liability in
negligence with each category being governed by different, although
complementary, legal principles and policy considerations.
10.18 In a novel fact situation, the incremental approach requires the
identification, by analogy, of a similar category (or categories) of duty cases.
Using a process of induction and deduction, the factors which were relevant
in that category of case then can be identified and applied to the case in hand.
An additional feature of the incremental approach is that it tends to be
conservative in approach and to see the creation of new rights as being the
province of the legislatures, rather than the common law courts; however, the
incremental approach might also ‘reveal’ common law rights that have not
previously been acknowledged.
10.19 With the eclipse of the proximity approach, other members of the
Australian High Court, in addition to Brennan J, have given qualified support
to the incremental approach. For example, in Perre v Apand Pty Ltd (1999)
198 CLR 180; 164 ALR 606, McHugh J
[page 198]
supported the incremental approach, but appeared to do so on the basis that
it was the ‘last approach left standing’. His Honour said about the incremental
approach:
It is not an approach that appeals to grand theorists who prefer to decide cases by general
principles applicable to all cases. But in an area of law … which is still developing … there is no
alternative to a cautious development of the law on a case by case basis. Perhaps another
unifying principle may emerge and gain widespread acceptance … Until a unifying principle
again emerges, however, the best solution is to proceed incrementally from the established cases
and principles: at [93].
Callinan J in Brodie (2001) 206 CLR 512; 180 ALR 145 at [316], however,
commented more bluntly, saying that the High Court had:
… at least for the moment, retreated to what is thought to be the safe haven of incremental
development, perhaps hoping that, in time, a unifying principle or principles will emerge.
10.20
Criticisms of the incremental approach include the fact that it
becomes ‘an accident of history’ whether a duty will be held to exist,
depending upon the point in time at which the particular novel fact situation
falls to be decided: see, for example, Gummow J in Crimmins v Stevedoring
Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1. Callinan J, in
Brodie, also drew attention to the difficulty of determining, in a novel case,
which particular category or categories of case are sufficiently analogous to
justify finding whether or not a duty of care should be owed: see, for example,
Brodie at [317]; Cole v South Tweed Heads Rugby League Football Club Ltd
(2004) 217 CLR 469; 207 ALR 52.
10.21 The incremental approach, with its inbuilt discretions, appears to
provide no greater certainty or predictably than the approaches previously
discarded by the High Court. Nevertheless, despite the lack of enthusiasm for
the incremental approach among the members of the High Court, in the
decade since the decision in Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687,
no other unifying principle has emerged to gain widespread acceptance in
Australia or in the common law world generally. In these circumstances, the
High Court has abandoned the search for some ‘unifying principle’ or
‘general conception of relations giving rise to a duty of care’ as referred to by
Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580. As their Honours
said in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [50]–[52]:
Developments in the law of negligence over the last 30 or more years reveal the difficulty of
identifying unifying principles that would allow ready solution of novel problems. Nonetheless,
that does not mean that novel cases are to be decided by reference only to some intuitive sense
of what is ‘fair’ or ‘unfair’.
Similar sentiments about the lack of a single unifying principle to explain
when a duty of care is owed were recently expressed by Bryson J (with whom
Mason P agreed) in Sutherland Shire Council v Becker [2006] NSWCA 344 at
[97]:
With the benefit of observations of the High Court in Sullivan v Moody (2001) 207 CLR 562 at
578–579 it can be seen that it is no longer appropriate to use proximity as an explanation of the
process of reasoning leading to a conclusion of duty of care. It can be seen that proximity
expresses the nature of what is in issue, but it is authoritatively established that it no longer is
acceptable as an explanation of the process of reasoning. Notwithstanding its centrality in
negligence law
[page 199]
for more than a century, and its ready use to explain decisions for many decades, referred to in
Sullivan v Moody, the limits of its utility should now be respected. Neither ‘proximity’ nor any
other formulation is readily available in exposition of the basis of decision on duty of care.
The Salient Features Approach
10.22 The salient features approach has been applied by the High Court,
particularly in the novel categories of case involving pure economic loss (by
Gummow J, for example in Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687)
and public authorities (for example by Gummow and Hayne JJ in Graham
Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337).
The salient features approach was discussed by Stephen J in Caltex Oil
(Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR
227, where his Honour found a duty was owed to the plaintiff on the basis of
identifying the ‘salient features’ of the circumstances surrounding the parties’
relationships. Stephen J considered that these salient features combined to
create a sufficiently close relationship for the defendant shipowners to owe a
duty of care to Caltex, who suffered pure economic loss when the defendant
severed a pipeline connecting its oil terminal with that of Australian Oil
Refining Pty Ltd refining facilities.
10.23 In Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606,
Gummow J expressed his preference for Stephen J’s salient features approach
over the incremental approach, saying (at [201]):
I prefer the approach taken by Stephen J in Caltex Oil. His Honour isolated a number of “salient
features” which combined to constitute a sufficiently close relationship to give rise to a duty of
care owed to Caltex for breach of which it might recover its purely economic loss.
In Perre v Apand, the plaintiffs grew potatoes for export to Western
Australian markets. The defendant imported potato seeds infected with
bacterial wilt and planted them on a property neighbouring the plaintiff’s
property. As a result of the detection of the disease on the neighbouring
property, the plaintiffs were legislatively prohibited from selling their
potatoes in Western Australia. This was because the legislation prohibited the
importation of potatoes from within a 20 km radius of an affected property
regardless of whether the disease had been detected on the other properties
within that radius.
10.24
In applying the salient features approach, Gummow J identified
several features of the relationships in Perre v Apand as justifying the
imposition of a duty of care, including the defendant’s control of the situation
and, despite the commercial context in which they were operating, the
plaintiffs’ vulnerability. These salient features of control and vulnerability are
central to those factors requiring judicial evaluation, discussed below (at
10.28) in the context of the High Court decision in Sullivan v Moody (2001)
207 CLR 562; 183 ALR 404.
3
The Current Approach of the High
Court
10.25 In Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 at
[98]–[99], it was noted:
The law of negligence in Australia has in large measure moved away from inflexible fixed rules,
control mechanisms and categories in favour of rules of general application. …
[page 200]
However, the considerations or factors that underpinned the imposition of fixed rules, control
mechanisms and categories continue to be relevant to an assessment of whether there is a duty
of care, although the weight attaching to them may differ according to the circumstances of a
particular case.
Sullivan v Moody
10.26 The approach applied by High Court in Sullivan v Moody (2001) 207
CLR 562; 183 ALR 404 forms the basis of the current approach to novel duty
cases in Australia:
The kind of harm suffered by the plaintiff must be recognised as being
compensable and an infringement of a legally recognised right.
The harm must also be recognised as having been a reasonably
foreseeable result of the defendant’s negligent conduct: Donoghue v
Stevenson [1932] AC 562.
Consistent with the incremental approach, the current approach
requires an analogy to be made with an established category (or
categories) of duty cases.
Then, by using a process of induction and deduction, the factors which
were relevant in that category of case can be identified and applied to
the case in hand.
10.27 However, since the suggested duty is novel (or falls on the boundary
of an established category), the next stage in the application of the Sullivan v
Moody approach involves the identification of the specific problems
associated with the class or category of case with which the analogy has been
made. It is at this stage that the salient features approach may be relevant
because of its focus on the specific features of the parties’ relationships
justifying the imposition of a duty of care.
10.28
The final stage of the Sullivan v Moody approach is a judicial
evaluation of the factors for and against the recognition of a duty of care in
the particular case under consideration. The factors requiring judicial
evaluation could, depending upon the circumstances and relationships of the
individual case, include:
the type of legally recognised right the plaintiff claims the defendant
has infringed, for example property or commercial rights, rights of
personal integrity (Sullivan v Moody (2001) 207 CLR 562; 183 ALR
404; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216
CLR 515; 205 ALR 522; Harriton v Stephens (2006) 226 CLR 52; 226
ALR 391);
the nature of the relationship between the plaintiff and the defendant
compared with other duty relationships, for example co-workers,
professional and client (Tame v New South Wales; Annetts v Australian
Stations Pty Ltd (2002) 211 CLR 317; Bryan v Maloney (1995) 182 CLR
609; 128 ALR 163; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211
CLR 540; 196 ALR 337);
the factual context in which the proposed duty arises, including the
degree of control exercised by the defendant over the situation in
which the harm to the plaintiff occurred (Woolcock Street Investments
Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; Crimmins v
Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1;
Perre v Apand (1999) 198 CLR 180; 164 ALR 606 (for example,
Gaudron J at [33]); Hill (t/as R F Hill & Associates) v Van Erp (1997)
188 CLR 159; 142 ALR 687);
[page 201]
the vulnerability of the plaintiff and the degree to which the plaintiff is
able to protect against violation of its own personal and property
rights, which is something more than mere reliance (Brookfield
Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR
408; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts
Reports ¶81-692; Perre v Apand (1999) 198 CLR 180; 164 ALR 606;
Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142
ALR 687; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR
100; Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391);
the need to preserve the coherency of the law and the integrity of
existing legal relationships, including contractual and statutory
responsibilities, duties and obligations (Brookfield Multiplex Ltd v
Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408; Hunter
and New England Local Health District v McKenna; Hunter and New
England Local Health District v Simon (2014) 253 CLR 270; 314 ALR
505; Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404; Koehler v
Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355; Graham
Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337);
indeterminacy issues, including whether the imposition of liability will
greatly exceed fault (Caltex Oil (Australia) Pty Ltd v The Dredge
‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227; Harriton v Stephens
(2006) 226 CLR 52; 226 ALR 391; Leichhardt Municipal Council v
Montgomery (2007) 230 CLR 22; 233 ALR 200);
decisions of overseas jurisdictions and recommendations of law reform
agencies (Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391;
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233
ALR 200; Brodie v Singleton Shire Council; Ghantous v Hawkesbury
Shire Council (2001) 206 CLR 512; 180 ALR 145); and
ethical and moral considerations, such as those referred to by Lord
Atkin in Donoghue v Stevenson [1932] AC 562, including the
protection of what are widely regarded as fundamental human rights:
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217
CLR 469; 207 ALR 52, especially the judgment of Kirby J.
Note the warning against treating these factors as an exhaustive list in
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [104], where
after listing 17 salient features, Allsop P stated:
There is no suggestion in the cases that it is compulsory in any given case to make findings
about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a nonexhaustive universe of considerations of the kind relevant to the evaluative task of imputation of
the duty and the identification of its scope and content.
10.29 The basis of the plaintiff’s action in Sullivan v Moody (2001) 207
CLR 562; 183 ALR 404 was his wife’s allegation that he had sexually abused
their young daughter. Pursuant to its powers under the Community Welfare
Act 1972 (SA), the South Australian Department of Community Welfare had
investigated the allegation and referred the child to a medical practitioner
who came to the conclusion that the child had been sexually abused.
However, no criminal charges were laid against the father and when the
matter was pursued in Family Court proceedings, between the plaintiff and
his wife, the plaintiff was successful: at [12].
[page 202]
The plaintiff subsequently brought an action in negligence against the
doctor who carried out the examination and the department for authorising
and acting upon the examination results. The damage claimed was ‘shock,
distress and psychiatric harm, and consequential personal and financial loss’:
at [15]. The plaintiff alleged that the defendants were negligent both in
carrying out the medical examination and in the investigation into the
allegations of sexual abuse. In a single joint judgment, the High Court held
that the defendants owed no duty of care to the father.
Their Honours rejected both the proximity (see 10.12) and Caparo (see
10.15) approaches to determining whether a duty of care exists in novel fact
situations: at [48]–[49]. Instead, their Honours considered that:
Different classes of case give rise to different problems in determining the existence and nature
or scope, of a duty of care … The relevant problem will then become the focus of attention in a
judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a
matter of principle: at [53].
The defendants had conceded that the kind of harm suffered by the
plaintiff was compensable and a reasonably foreseeable result of the
defendant’s negligent conduct. The main issue was whether the nature of the
plaintiff’s relationship with the defendants was such that they owed him a
duty of care.
The ‘problem’ identified by the High Court in this ‘class of case’ was that
the negligent conduct essentially concerned the communication of
information, that being the results of the examination of the child and the
allegation of sexual abuse. If the action had been brought in defamation,
defences would have been available which are not available in a negligence
action: at [54]. Therefore, the court held that to recognise a duty of care owed
to the plaintiff, in these circumstances, would undermine the coherency of the
common law.
While their Honours acknowledged that it is possible for a person (or
government authority) to owe a duty to more than one person, in this case
they considered that the proposed duty cut across, and conflicted with, the
more established duties owed by the defendants at common law and under
the Community Welfare Act 1972 (SA). Consequently, to find that a duty was
also owed to the plaintiff would be inconsistent with these common law and
statutory duties and, for this reason as well, should not be recognised: at [60].
The spectre of indeterminate liability, both in terms of doctors’ liability to
third parties and in terms of the duty owed by the department to the alleged
perpetrators of sexual abuse, also arose for consideration in the circumstances
of this case. The plaintiff argued that the parent–child relationship provided
the necessary limitation on the scope of the duty of care owed by the
defendants. The High Court rejected this argument, saying that if such a duty
was recognised, there was no reason, in principle, why it could not be
extended to others, such as teachers and extended family members. Since
there was no remaining identifiable legal right which the plaintiff could show
to have been violated, there was no basis upon which to hold that the
defendants owed the father a duty of care: at [62]–[64].
Reasonable Foreseeability
10.30 As with every duty of care, the damage suffered by the plaintiff must
be the reasonably foreseeable consequence of the defendant’s breach. In
several of the cases
[page 203]
decided since its decision in Sullivan v Moody (2001) 207 CLR 562; 183 ALR
404, the High Court has revisited Lord Atkin’s neighbourhood test of
reasonable foreseeability in Donoghue v Stevenson [1932] AC 562. For
example, in the pure psychiatric injury cases of Tame v New South Wales;
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449,
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 and Koehler
v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355, the High Court
has paid far more attention to the issue of reasonable foreseeability than had
been its practice.
10.31 In Tame v New South Wales; Annetts v Australian Stations Pty Ltd
(2002) 211 CLR 317; 191 ALR 449, several members of the High Court
challenged the perception that reasonable foreseeability is an ‘undemanding’
test and simply a matter of factual predictability. McHugh J commented that:
Because reasonable foreseeability is a compound conception of fact and value, policy
considerations affecting the defendant or persons in similar situations arguably enter into the
determination of whether the defendant ought reasonably to have foreseen that his or her acts or
omissions were “likely to injure your neighbour”: at [108].
Callinan J endorsed the approach of recognising reasonableness as a
touchstone for whether a duty of care should be owed and that the concept of
reasonableness should take into account the ‘realities of ordinary life’: at
[331]. Gleeson CJ opined (at [12]):
It is important that “reasonable foreseeability” should be understood and applied with due
regard to the consideration that, in the context of an issue as to duty of care, it is bound up with
the question whether it is reasonable to require a person to have in contemplation the risk of
injury that has eventuated.
His Honour also stated: ‘Ultimately, reasonableness defies rigorous
categorisation of its elements’: at [35].
Legal Principle v Legal Policy
10.32
Kirby J has written:3
Legal principle comes from an analysis of the emerging common themes of multiple decisions in
connected areas of the law. Being itself a captive of past decisions, legal principle will not always
be of great assistance. In such circumstances, the quandary of judicial choice can be helped, and
judicial reasons will be made more transparent, by the identification of any policy
considerations that the judge takes into account.
Novel cases require judges with the responsibility of decision to evaluate the choices they make
by reference to considerations of legal policy. In the past, such questions were commonly
submerged in judicial reasoning expressed in verbal formulas. However, in most countries of the
common law today, judges in the higher courts, evaluate new cases by candid reference to, and
evaluation of, considerations of legal policy. Judicial attention to considerations of policy is not
new. What is new is the open judicial acknowledgment of it.
10.33 One of the earliest open acknowledgments of the influence of policy,
or normative considerations, on decisions in novel duty situations was by
Lord Reid in Home Office
[page 204]
v Dorset Yacht Co Ltd [1970] AC 1004. In that case, a government
department, the Home Office, negligently allowed some juvenile boys to
escape from a correctional facility. An action was brought against the
department by members of the public seeking compensation for property
damage caused by the boys during their escape. In finding for the plaintiffs,
the House of Lords rejected the department’s claim of an immunity. Lord
Reid said: ‘I can see no good reason in public policy for giving this immunity
to a government department’: at 1033.
As discussed above at 10.9, Lord Wilberforce also acknowledged the
importance of policy considerations in Anns v London Merton Borough
Council [1978] AC 728, as the second stage of a two-tiered approach to
whether a duty of care is owed in a novel fact situation:
… the position has now been reached that in order to establish that a duty of care arises in a
particular situation … the question has to be approached in two stages … Secondly, if the first
question is answered affirmatively, it is necessary to consider whether there are any
considerations which ought to negative, or to reduce or limit the scope of the duty or the class of
person to whom it is owed for the damages to which a breach of it may give rise: at 751–2.
Legal Policy v Public Policy
10.34 In discussing the role of policy in determining whether a duty of
care exists in a novel fact situation, it must first be understood that there is a
distinction between legal policy and public policy. In Cattanach v Melchior
(2003) 215 CLR 1; 199 ALR 131 at [75], McHugh and Gummow JJ endorsed
the following statement by Lord Radcliffe:
Public policy suggests something inherently fluid, adjusted to the expediency of the day, the
proper subject of the minister or the member of the legislature. The considerations which we
accept as likely to weigh with them are just not those which we expect to see governing the
decisions of a court of law. On the contrary, we expect to find the law indifferent to them,
speaking for a system of values at any rate less mutable than this.4
10.35 Second, it should be understood that the dividing line between legal
principle and legal policy is often difficult to discern. Stapleton, for example,
has written:
But I have yet to hear a compelling account of the difference between principle and policy. Is a
concern that liability not be indeterminate a principle or a policy? Is the judicially stated
concern that the law should not positively encourage abortion a principle or a policy?
She suggests instead:
In my opinion, therefore, we should ditch both the “principle” and “policy” terminology, and
simply describe these concerns neutrally as ‘legal concerns’ while openly acknowledging that
‘the law takes on new values and sheds old ones as society changes’.5
10.36 Finally, it must be understood that the courts can only consider
policy considerations in the absence of binding authority applying to the facts
of the particular case. Moreover, even in the absence of relevant legal
principles, the policies applied to decisions in novel duty situations must be
anchored in the legal principles and policies which have
[page 205]
developed during the more than 800-year history of the common law.
Nevertheless, the decision as to the choice of the relevant principles and
policies may in itself include a value or policy judgment. For example,
Callinan J, in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire
Council (2001) 206 CLR 512; 180 ALR 145 at [317], drew attention to the
difficulty of determining in a novel case which particular category or
categories of case are sufficiently analogous to justify finding whether or not a
duty of care should be owed.
An example
10.37 An example of the selective use of legal principles and policy is
provided by the High Court decision in Cole v South Tweed Heads Rugby
League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52. The plaintiff, Mrs
Cole, brought an action against the club because it had not prevented her
from leaving its premises when its employees knew she was in an intoxicated
condition. The plaintiff had been drinking at the club from approximately
9.30 am until 6.00 pm, although the club’s employees had last served her
alcohol at 12.30 pm. Cole refused an offer by the club’s manager of a lift home
and left the club. She was approximately 100 metres from the premises when
she was struck by a motor vehicle. At that time she had a blood alcohol
reading of 0.238, the equivalent of about 16 standard drinks.
Cole sued the motorist and the club and was partially successful against
both, in that they were each held 30 per cent liable, while she was held 40 per
cent contributorily negligent. On appeal, both defendants were successful and
Cole appealed to the High Court in relation only to the action against the
club.
By a 4:2 majority, the High Court rejected Cole’s appeal. Gleeson CJ and
Callinan J separately held that the club owed no duty of care to the plaintiff.
Gummow and Hayne JJ, in a joint judgment, rejected the appeal on the
grounds that even if there was a duty of care owed (a point their Honours
declined to decide), there was no breach of that duty. In dissent, McHugh and
Kirby JJ each held that the club did owe a duty of care to Cole and that the
other elements of the negligence action were also satisfied.
Fundamentally, Cole v South Tweed Heads Rugby League Football Club Ltd
concerned two long-established but, in the circumstances of the present case,
conflicting common law principles: the first was the general rule that ‘a
person has no legal obligation to rescue another’: at [15] per Gleeson CJ; and
the second, that an occupier of premises ‘owes a duty to take reasonable care
for the safety of those who enter the premises’: at [30] per McHugh J. In their
reasons, generally, Gleeson CJ and Callinan J placed greater reliance on the
first principle, while McHugh and Kirby JJ thought the second was more
important in all the circumstances of the case.
Another relevant issue was the New South Wales legislation governing the
operation of clubs — the Registered Clubs Act 1976. Gleeson CJ and Callinan
J considered that no greater duty should be imposed on the club than that
contained within s 44A of the legislation: at [16] per Gleeson CJ. McHugh
and Kirby JJ, on the other hand, considered that, while the Act itself did not
give rise to a statutory cause of action, the Act revealed parliament’s
recognition and acceptance of the vulnerability of persons who consume
excessive amounts of alcohol, and that the common law should do likewise:
for example, at [95] per Kirby J.
[page 206]
The essential difference between the approaches of Gleeson CJ and
Callinan J, and that of McHugh and Kirby JJ, were their respective views as to
the relevant duty category and underlying policy considerations in cases of
this kind. For example, Gleeson CJ commented (at [18]):
The consequences of the [plaintiff’s] argument as to duty of care involve both an unacceptable
burden upon ordinary social and commercial behaviour, and an unacceptable shifting of
responsibility for individual choice. The argument should be rejected.
In contrast, Kirby J was critical of the ‘withered view of community and
legal neighbourhood propounded by Gleeson CJ and Callinan J’: at [93]. His
Honour commented (at [94]):
… to hold that the Club owed no duty of care by the standards of the common law of
negligence, to patrons such as the [plaintiff], is unrealistic … The policy reasons, concerned with
free will and personal autonomy, that might in other circumstances justify withholding the
imposition of a duty of care are overridden, in the case of the Club, by the commercial interest it
had in the presence of the appellant on its premises and the known propensity of the alcoholic
product, made available there, to expose at least some individuals to the risk of serious harm.
4
Scope of the Duty
10.38 As with established duties of care, the scope of the novel duty must
be identified to allow the issue of breach to be determined: Kuhl v Zurich
Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at [22];
Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR
200 at [8].
The scope of the novel duty is defined with reference to the loss suffered by
the plaintiff and the conduct of the defendant.
10.39 The statutory context, within which the common law operates, may
be relevant to a court deciding the existence and nature or scope of a
common law duty of care. This has been stressed by the High Court in cases
such as Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR
337, where McHugh J commented that a statutory power is not the source of
a common law duty of care, but that it may be an important factor in finding
that a common law duty of care also was owed: at [80]. Comments to similar
effect were made by Gummow and Hayne JJ in New South Wales v Fahy
(2007) 232 CLR 486; 236 ALR 406 at [26], when their Honours commented
that, when determining the existence or boundaries of a duty of care in a
novel fact situation:
… it is necessary and important to recognise that [the duty is] framed in a way that takes proper
account of the statutory framework provided … for the performance of police duties.
See also Roads and Traffic Authority of New South Wales v Dederer (2007)
234 CLR 330; 238 ALR 761; Cole v South Tweed Heads Rugby League Football
Club Ltd (2004) 217 CLR 469; 207 ALR 52.
5
Pure Psychiatric Injury
10.40 The common law has traditionally been reluctant to recognise pure
psychiatric injury as a compensable kind of damage, primarily because of
concerns about imaginary
[page 207]
and pretend claims. These concerns were compounded by the fear of a ‘flood’
of claims and the difficulty of knowing where to draw the line between
physical and psychiatric injury.6 The initial approach of the common law
courts, therefore, was to hold that pure psychiatric injury (or ‘nervous shock’,
as it was then called) was not a kind of damage recognised by the common
law: Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222;
Dulieu v White [1901] 2 KB 669.
10.41 After the decision in Donoghue v Stevenson [1932] AC 562, the test
for whether a duty of care was owed in regard to pure psychiatric injury
became whether that kind of injury was reasonably foreseeable by the
defendant when the breach of the duty occurred: Bourhill v Young [1943] AC
92; McLoughlin v O’Brian [1983] AC 410; Attia v British Gas plc [1988] QB
304; Jones v Wright [1991] 3 All ER 88.
In 1939, the test of reasonable foreseeability was used by the Australian
High Court in Chester v Waverley Corporation (1939) 62 CLR 1 to justify
holding that no duty of care was owed to a mother who suffered nervous
shock after witnessing her child’s dead body being retrieved from a ditch. The
decision was based upon the somewhat surprising finding by the High Court
that nervous shock might have been foreseeable if the mother had actually
seen the child drown, but not where all she saw was the recovery of the child’s
body: see also Boardman v Sanderson [1964] 1 WLR 1317.
10.42 However, it was the High Court decision in Jaensch v Coffey (1984)
155 CLR 549; 54 ALR 417 which set the scene in regard to determining
whether pure psychiatric injury could be recovered in a negligence action for
the remainder of the 20th century. The plaintiff in Jaensch v Coffey developed
a psychiatric illness, characterised by anxiety and depression, due to what she
saw and heard at the hospital to which her husband had been admitted after
being seriously injured due to the defendant’s negligent driving. Although the
plaintiff was not injured herself, nor present at the scene of the accident, she
witnessed the aftermath at the hospital where her husband was treated soon
after the accident. In these circumstances, the High Court held that the
factual circumstances of the close and loving relationship between the
plaintiff and the victim meant that it was reasonably foreseeable that she
could suffer a pure psychiatric injury.
Whether a duty of care will be owed in relation to a pure psychiatric injury
is now governed by the same general principles as other negligence actions:
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211
CLR 317; 191 ALR 449.
10.43 To prove a duty of care, the plaintiff must establish that they are
suffering a recognised psychiatric injury that is the reasonably foreseeable
consequence of the defendant’s negligent act or omission. Then under the
current approach to establishing a novel duty, the relevant factors identified
in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 must be considered.
The cases in this category of novel duty highlight that reasonable
foreseeability, the relationships between the parties, the control of the
defendant and the vulnerability of the plaintiff and the issue of indeterminacy
are particularly relevant.
[page 208]
Recognised Psychiatric Injury
10.44 The first Australian High Court decision to recognise the existence
of a duty of care in regard to pure psychiatric injury was Mount Isa Mines Ltd
v Pusey (1970) 125 CLR 383; [1971] ALR 253. The employer was held to be in
breach of the duty it owed to its employee when he went to the rescue of
workmates who had suffered massive burns as a result of their employer’s
negligence. Recovery was limited to those circumstances where an identifiable
psychiatric or psychopathological disorder was diagnosed. Windeyer J stated
(at CLR 394; ALR 258–9):
Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover
damages for a “shock”, however grievous, which was no more than an immediate emotional
response to a distressing experience sudden, severe and saddening. It is, however, today a
known medical fact that severe emotional distress can be the starting point of a lasting disorder
of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the
result of a tortious act, damages may be had.
In Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002)
211 CLR 317; 191 ALR 449 at [193], the High Court held:
In Australia … a plaintiff who is unable affirmatively to establish the existence of a recognisable
psychiatric illness is not entitled to recover. Grief and sorrow are among the “ordinary and
inevitable incidents of life”; the very universality of those emotions denies to them the character
of compensable loss under the tort of negligence. Fright, distress or embarrassment, without
more, will not ground an action in negligence.
See also Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417; Gifford v Strang
Patrick Stevedoring Pty Ltd (2003) 198 ALR 100; CSR Ltd v Della Maddalena
(2006) 80 ALJR 458.
10.45
The civil liability legislation in some jurisdictions provides that there
is no recovery in negligence unless the mental harm is a recognised
psychiatric illness: Civil Law (Wrongs) Act 2002 (ACT) s 35(1); Civil Liability
Act 2002 (NSW) s 31; Civil Liability Act 1936 (SA) s 53(2); Civil Liability Act
2002 (Tas) s 33; Wrongs Act 1958 (Vic) s 75; Civil Liability Act 2002 (WA) s
5S(1).
10.46
In regard to consequential psychiatric injury, the common law
allows recovery for mental harm, however minor, provided it is consequential
upon a physical injury: Nader v Urban Transit Authority (1985) 2 NSWLR
501. This continues to be the situation in Queensland and the Northern
Territory. In other Australian jurisdictions, the common law has changed by
virtue of the legislation: Civil Law (Wrongs) Act 2002 (ACT) s 35(2); Civil
Liability Act 2002 (NSW) s 33; Civil Liability Act 1936 (SA) s 53(3); Civil
Liability Act 2002 (Tas) s 35; Wrongs Act 1958 (Vic) s 75; Civil Liability Act
2002 (WA) s 5T. In these jurisdictions, consequential mental harm is
compensable only if it amounts to a ‘recognised psychiatric illness’.
See Flight Centre Ltd v Louw (2010) 78 NSWLR 656 where it was held that
although the appellant had suffered pure mental harm (inconvenience,
distress and disappointment suffered as a result of interruption of appellant’s
holiday at a tropical resort due to construction work), it did not consist of a
recognised psychiatric illness for the purposes of s 31 of the Civil Liability Act
2002 (NSW).
[page 209]
Reasonable Foreseeability
10.47 The issue of reasonable foreseeability may be influenced by the
factual context (including any contractual or statutory duties and obligations)
of the relationships between the parties to the action: Gifford v Strang Patrick
Stevedoring Pty Ltd; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214
ALR 355.
10.48
The foreseeability of the plaintiff’s psychiatric injury must be
assessed as at the time of the negligent act or omission: Koehler v Cerebos
(Australia) Ltd. Since the decision of Tame v New South Wales; Annetts v
Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, the test for
reasonable foreseeability in claims of pure psychiatric injury involves a
consideration of normal fortitude, direct perception and sudden shock.
Gaudron J explained (at [59]):
It is in the context of foreseeability that the “sudden shock” and “normal fortitude” rules fall for
consideration. When the law limited claimants to those who, by reason of their closeness in time
or space, directly perceived distressing phenomena or their aftermath, as was implicit in the
categories of persons identified by Evatt J in [Chester v Waverley Corporation (1939) 62 CLR 1 at
44], it was inevitable that the law should select sudden shock as that which rendered foreseeable
the risk of psychiatric injury.
So, too, because “reasonable foreseeability is an objective criterion of duty” [Jaensch v Coffey
(1984) 155 CLR 549 at 568; 54 ALR 417 at 431 per Brennan J], it is understandable that the law
selected “a normal person of ordinary firmness and mental stability” [Chester v Waverley
Corporation (1939) 62 CLR 1 at 28 per Evatt J] as a general test of foreseeability of the risk of
psychiatric injury in the case of those who directly perceived distressing events or their
aftermath.
Normal fortitude
10.49 In Jaensch v Coffey (1984) 155 CLR 549 at 556; 54 ALR 417 at 421,
Gibbs CJ stated:
It may be assumed (without deciding) that injury for nervous shock is not recoverable unless an
ordinary person of normal fortitude in the position of the plaintiff would have suffered some
shock.
10.50 In Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449, the
appellant was involved in a motor vehicle collision due to the fault of the
other driver who had a blood alcohol content reading of 0.14. A police officer
subsequently completed the details of the traffic collision report by
mistakenly recording both drivers’ blood alcohol content as 0.14. This error
was detected within a short time and corrected. The appellant was awarded
damages for the injuries she received in the accident, but during negotiations
it was discovered that the insurer had a copy of the unamended report. The
appellant became obsessed with the mistake on the form, worrying about the
effect the mistake would have on her reputation, despite being told that it had
been corrected and receiving a formal apology from the Police Service. The
appellant was diagnosed as suffering from psychotic depressive illness, and
the evidence was that the appellant was predisposed to psychotic depression.
The appellant sued in negligence claiming that the police officer owed a duty
of care and that the state was vicariously liable as the employer.
[page 210]
The High Court held that reference to the hypothetical person of ‘normal
fortitude’ was merely the application of a standard to assist in determining
the reasonable foreseeability of harm and was not to be used to deny recovery
to a plaintiff unless they are of ‘normal fortitude’: at [199] per Gummow and
Kirby JJ.
McHugh J explained (at [109]–[110]):
Once the notion of reasonableness regains its rightful place at the front of the negligence
inquiry, it must follow that a defendant is entitled to act on the basis that there will be a normal
reaction to his or her conduct. The position is different if the defendant knows that the plaintiff
is in a special position. But otherwise the defendant should not be penalised for abnormal
reactions to his or her conduct.
To insist that the duty of reasonable care in pure psychiatric illness cases be anchored by
reference to the most vulnerable person in the community — by reference to the most fragile
psyche in the community — would place an undue burden on social action and communication.
To require each actor in Australian society to examine whether his or her actions or statements
might damage the most psychiatrically vulnerable person within the zone of action or
communication would seriously interfere with the individual’s freedom of action and
communication. To go further and require the actor to take steps to avoid potential damage to
the peculiarly vulnerable would impose an intolerable burden on the autonomy of individuals.
Ordinary people are entitled to act on the basis that there will be a normal reaction to their
conduct. It is no answer to say that the defendant ought to be liable to peculiarly vulnerable
persons because the defendant is guilty of careless conduct. The common law of negligence does
not brand a person as careless unless the law has imposed a duty on that person to avoid
carelessly injuring others.
10.51 If the defendant is aware of the plaintiff’s ‘special position’, this will
affect the issue of whether the risk of psychiatric injury was reasonably
foreseeable. In Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR
355, the appellant sued her employer in negligence for the psychiatric injury
she suffered in the course of her employment. The appellant could not carry
out her duties to her satisfaction and repeatedly informed management that
changes had to be made. Five months after commencing work the appellant
fell ill, and the evidence was that she was suffering from a psychiatric illness
caused by her work.
The High Court held that the risk of psychiatric illness was not reasonably
foreseeable. McHugh, Gummow, Hayne and Heydon JJ held (at [28]):
In this case it is enough to notice that her agreement to undertake the work runs contrary to the
contention that the employer ought reasonably to have appreciated that the performance of
those tasks posed a risk to the appellant’s psychiatric health. It runs contrary to that contention
because agreement to undertake the work not only evinced a willingness to try but also was not
consistent with harbouring, let alone expressing, a fear of danger to health. That is why the
protests the appellant made (that performance of the work within the time available seemed
impossible) did not at the time bear the significance which hindsight may now attribute to them.
What was said did not convey at that time any reason to suspect the possibility of future
psychiatric injury.
See also Woolworths Ltd v Perrins [2015] QCA 207 at [72], where it was
stated that ‘the notion that informing an employee that they had failed to
meet certain objective criteria,
[page 211]
expected of all employees, previously laid down and previously advised,
would result in decompensation into psychiatric illness does not seem to me
to be “reasonably foreseeable”’.
Direct perception
10.52 The House of Lords in McLoughlin v O’Brian [1983] 1 AC 410
allowed recovery for psychiatric illness suffered by the plaintiff after attending
the hospital at which her husband and children were at after being involved in
an accident. Lord Wilberforce held that ‘the shock must come through sight
or hearing of the event or of its immediate aftermath’: at 423. The High Court
considered this case in Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417, in
which also the plaintiff did not witness the accident which injured her
husband, but witnessed the aftermath of the accident at the hospital. Deane J
held (at CLR 591; ALR 449–5):
The fact that a husband or wife goes straight to the hospital where his or her injured spouse is
being, or has been, taken rather than to the actual scene of the accident cannot rationally be said
to have the effect that the relevant risk of injury by way of nervous shock can no longer be
regarded as having been reasonably foreseeable. For that matter, it is easy to envisage
circumstances, such as an injury to the spinal cord caused in a bloodless accident, in which the
shock sustained by involvement in the aftermath of the accident on attendance at the hospital
would render insignificant any shock which was or would have been sustained by prior
attendance at the scene of the accident. Indeed, the present would appear to be such a case in
that the more serious injuries sustained by Mr Coffey, namely the injuries to his liver and
kidneys, were only identified after he had been taken to hospital. If the scope of the duty of care
of a user of the highway is to be limited as extending only to other users of the highway and
those persons who actually attend the scene of an accident, it must be on some basis other than a
genuine or realistic consideration of reasonable foreseeability. It follows that the answer to the
first of the above questions is that the fact that Mrs Coffey sustained nervous shock at the
hospital rather than at the scene of the accident cannot rationally be seen as having the
consequence that the risk of such injury to her was not reasonably foreseeable.
10.53 In Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191
ALR 449, the High Court had to consider whether it was reasonably
foreseeable that the appellants, parents of the respondent’s employee, would
suffer psychiatric injury even though they did not present at the incident or
the aftermath. In that case the appellants’ son went to work as a jackeroo for
the respondent in Western Australia. Prior to their son’s employment, the
appellants made inquiries of the respondent as to the safety arrangements and
only agreed to his employment upon being assured that he would be under
constant supervision. After only seven weeks, their son was sent to work
alone as a caretaker in a remote location. It was then discovered that he was
missing and the circumstances were such to indicate he was in grave danger.
When the police informed Mr Annetts of this over the telephone, he
collapsed. A prolonged search was carried out and two months later the son’s
bloodstained hat was found, but it was not for another three months that his
body was found. The appellants had travelled from their home in New South
Wales to Western Australia several times upon discovering that their son was
missing. Mr Annetts returned to Western Australia to identify the remains of
his son from a photograph.
The members of the High Court observed that to allow only plaintiffs who
have directly perceived a distressing event or its aftermath to recover for
psychiatric harm was ‘apt
[page 212]
to produce arbitrary outcomes and to exclude meritorious claims’: at [221].
Gaudron J reasoned that the ‘direct perception’ rule was not determinative of
those who may claim in negligence for pure psychiatric harm: at [51].
Gleeson CJ held that to differentiate between parents of a child lost in a desert
and those who witness their child being run down by a car, was indefensible
when the parents suffered the same harm: at [36].
10.54 In Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269;
198 ALR 100 at [9], Gleeson CJ reiterated that:
Rejection of a “control mechanism”, such as the need for direct perception of an incident or its
aftermath, originally devised as a means of giving practical content to that consideration, does
not involve rejection of the consideration itself.
The distance in time and space from the event are to be taken into account
when considering whether the psychiatric harm is reasonably foreseeable, but
a lack of direct perception of the incident or its aftermath does not preclude a
duty of care: Tame v New South Wales; Annetts v Australian Stations Pty Ltd;
Gifford v Strang Patrick Stevedoring Pty Ltd.
10.55 If a lack of direct perception does not preclude a duty of care, this
raises the question of how far may reasonable foreseeability of psychiatric
harm extend? Gummow and Kirby JJ in Tame v New South Wales; Annetts v
Australian Stations Pty Ltd at [225] noted that the means of communication
may be relevant to reasonable foreseeability.
The Queensland Court of Appeal decision of Hancock v Nominal
Defendant [2002] 1 Qd R 578 may predate the decisions of the High Court,
but it allowed recovery of damages for psychiatric harm even though the
plaintiff did not attend the scene of the accident which killed his son or its
aftermath. The plaintiff was referred to by the court as a ‘secondary victim’
due to his lack of direct perception. The death of his son was communicated
to the plaintiff by telephone the morning after the motor vehicle accident.
The police informed the plaintiff that the deceased’s body was so badly
injured that visual identification would not be possible. It took until midafternoon for dental records to confirm that the deceased was in fact the
plaintiff’s son.
Davies JA extensively reviewed the case law of the United Kingdom,
France, Germany and Australia and other common law countries in his
judgment. His Honour referred to the judgment of Kirby P (as he then was)
in Coates v Government Insurance Office of New South Wales (1995) 36
NSWLR l at 10:
… hearing by telephone, or by later oral message, can, in today’s world, be just as foreseeable
and just as directly related to the wrong sued upon as if the vulnerable observer had received the
shocking perception by his or her own eyes and ears at the moment of the relevant wrong. The
rule of actual perception is in part a product of nineteenth century notions of psychology and
psychiatry. In part, it was intended as a shield of policy against expanding the liability of
wrongdoers for the harm they caused. And in part, it was a reflection of nineteenth century
modes of communicating information.
10.56 Note, however, when the plaintiff has not witnessed the accident or
the aftermath, the cases refer to the close relationship between the plaintiff
and the victim as relevant: Coates v Government Insurance Office of New
South Wales at 9–10; Hancock v Nominal Defendant [2002] 1 Qd R 578; Tame
v New South Wales; Annetts v Australian Stations Pty
[page 213]
Ltd (2002) 211 CLR 317; 191 ALR 449 at [222]; Gifford v Strang Patrick
Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100: Some jurisdictions
have legislation that prevents an award of damages unless the plaintiff was at
the scene of the accident or is in one of the specified relationships with the
victim: see 10.59.
Sudden shock
10.57 From Deane J’s judgment in Jaensch v Coffey (1984) 155 CLR 549;
54 ALR 417, it was understood that to be able to recover for pure psychiatric
injury the plaintiff must have suffered a sudden shock: see, for example, Reeve
v Brisbane City Council [1995] 2 Qd R 661 at 675–7; Pham v Lawson (1997)
68 SASR 124 at 149. This was also the approach in England: see, for example,
Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400,
401, 417; Liverpool Women’s Hospital NHS Foundation Trust v Ronayne
[2015] EWCA Civ 588 at [17].
10.58 However, a majority of the High Court in Tame v New South Wales;
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 held
(Callinan J dissenting) that the requirement of sudden shock was not a part of
Australian law: at [18], [66], [213], [236]. Therefore, in Annetts v Australian
Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, it was not fatal to the
appellants’ claim that the psychiatric injury had developed over time as they
waited for the son to be found. Gleeson CJ stated (at [36]):
The process by which the applicants became aware of their son’s disappearance, and then his
death, was agonizingly protracted, rather than sudden. And the death by exhaustion and
starvation of someone lost in the desert is not an “event” or “phenomenon” likely to have many
witnesses. But a rigid distinction between psychiatric injury suffered by parents in those
circumstances, and similar injury suffered by parents who see their son being run down by a
motor car, is indefensible.
See also Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR
23 at [27]–[29].
Civil liability legislation
10.59 Although it was not part of the Ipp Report recommendations, all
jurisdictions, except the Northern Territory and Queensland, included
mental harm in the civil liability legislation. For example, s 32 of the Civil
Liability Act 2002 (NSW) provides:
(1) A person (the defendant) does not owe a duty of care to another
person (the plaintiff) to take care not to cause the plaintiff mental
harm unless the defendant ought to have foreseen that a person of
normal fortitude might, in the circumstances of the case, suffer a
recognised psychiatric illness if reasonable care were not taken.
(2) For the purposes of the application of this section in respect of pure
mental harm, the circumstances of the case include the following:
(a) whether or not the mental harm was suffered as the result of a
sudden shock.
(b) whether the plaintiff witnessed, at the scene, a person being
killed, injured or put in peril.
(c) the nature of the relationship between the plaintiff and any
person killed, injured or put in peril.
[page 214]
(d) whether or not there was a pre-existing relationship between
the plaintiff and the defendant.
See also Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act 1936
(SA) s 33; Civil Liability Act 2002 (Tas) s 34; Wrongs Act 1958 (Vic) s 78;
Civil Liability Act 2002 (WA) s 5S.
In Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160,
the court held that s 32(2) of the Civil Liability Act 2002 (NSW) restated the
law as in Tame v New South Wales; Annetts v Australian Stations Pty Ltd
(2002) 211 CLR 317; 191 ALR 449. However, subsection (1) added the
requirement that the plaintiff had to establish that the defendant ought to
have foreseen that a person of normal fortitude might suffer a recognised
psychiatric illness in the circumstances: at [81].
Relevant Factors
10.60
The fact that the risk of pure psychiatric harm is reasonably
foreseeable does not by itself impose a duty of care upon the defendant.
Under the approach of Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404, a
court must also consider the nature of the relationships between the parties,
the vulnerability of the plaintiff, the control of the defendant, any
indeterminacy issues and the coherency of the law.
Relationships between parties
10.61
In establishing a duty of care for pure psychiatric injury, the
relationships between the parties is an important factor. The nature of the
parties’ relationships is particularly important where the plaintiff indirectly
suffers a pure psychiatric injury (sometimes referred to as the ‘secondary
victim’). This usually occurs because the plaintiff is in a ‘close and loving
relationship’ with the victim but was not present during the shocking event or
its immediate aftermath. As Gaudron J commented in Tame v New South
Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR
449 at [52]:
To identify those who may claim for pure psychiatric injury as those who should be in the
contemplation of the person whose acts or omissions are in question as persons closely and
directly affected is not to say that the categories of persons who may recover damages for pure
psychiatric injury are open-ended. Save for those who fall within the ‘direct perception rule’, as
extended by Jaensch v Coffey, a person will be able to recover for psychiatric injury if there is
some special feature of the relationship between that person and the person whose acts or
omissions are in question such that it can be said that the latter should have the former in
contemplation as a person closely and directly affected by his or her acts.
10.62 In Annetts, the court took into account the fact that the appellants
were the parents of the victim who was an employee of the respondent. Also
important was the fact that there was a relationship between the appellants
and the respondent, as the appellants had sought reassurance from the
respondent as to the safety of their 16-year-old son before agreeing to his
employment with them. Hayne J held (at [237]):
The connections between the parties indicate the existence of a duty of care. An antecedent
relationship between the plaintiff and the defendant, especially where the latter has assumed
some responsibility to the former to avoid exposing him or her to a risk of psychiatric harm,
may supply the basis for importing a duty of care.
[page 215]
See also Hancock v Nominal Defendant [2002] 1 Qd R 578.
10.63 It is not necessary that the plaintiff be related to the victim. In
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100
at [48], McHugh J stated:
It is the closeness and affection of the relationship — rather than the legal status of the
relationship — which is relevant in determining whether a duty is owed to the person suffering
psychiatric harm. The relationship between two friends who have lived together for many years
may be closer and more loving than that of two siblings. There is no policy justification for
preventing a claim for nervous shock by a person who was not a family member but who has a
close and loving relationship with the person harmed or put in peril. In a claim for nervous
shock at common law, the reasonable foresight of the defendant extends to all those with whom
the victim has or had a close and loving relationship.
Vulnerability and control
10.64 When referring to vulnerability of the plaintiff in claims for pure
psychiatric injury, the reference is to the issue of whether the plaintiff was
unable to protect themselves against the harm, not that they were vulnerable
in the sense of being more susceptible to psychiatric harm. That issue would
be considered in relation to the reasonable foreseeability of the harm: Tame v
New South Wales (2002) 211 CLR 317; 191 ALR 449.
10.65 The appellants in Annetts had to rely upon the respondent as the
employer of their 16-year-old son to ensure that he was supervised properly
and therefore were vulnerable. There was similar control by the respondent in
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR
100. In that case the High Court held that the appellants were vulnerable in
that they could not protect themselves against the psychiatric harm. Further,
the respondent had control over the workplace, giving it control of the risk to
its employee and therefore control of the risk of psychiatric harm to the
appellants: at [90].
10.66 In Sklavos v Australasian College of Dermatologists [2016] FCA 179,
the appellant claimed that the respondent owed him a duty of care to exercise
reasonable care to avoid psychiatric injury when it made allegations, reports
and sanctions for breaches of professional behaviour. The appellant was a
trainee with the respondent, a relationship that was formally documented
with the respondent having power over the appellant’s progress through the
training program that lasted a number of years. Although the respondent
denied the existence of a duty of care, no arguments were made on this issue
before the court. However, Jagot J noted that the respondent was in a position
of control as it had assumed responsibility for the training of the appellant
and the training program was the only pathway in Australia to enable a
doctor to practise as a dermatologist. The appellant had only limited means to
protect himself from the respondent’s exercise of power and therefore was
vulnerable.
Indeterminacy
10.67 When the plaintiff suffers pure psychiatric harm due to a negligent
act or omission in which they are involved, the issue of indeterminate liability
is unlikely to prevent a duty of care being owed as the class of plaintiff would
be restricted and loss ascertainable.
[page 216]
10.68
However, if the plaintiff is a secondary victim, indeterminate
liability may be a relevant issue. The requirement of a relationship of close
ties of affection between the plaintiff and the victim addresses this issue and
as Butler notes:
It is a fallacy to believe, for example, that merely because a physically injured person has a
family, every member of that family, or even any member of that family will necessarily suffer a
pathological reaction as a result of the physical injury, although it is reasonable to expect that all
or most members of the family might to varying degrees experience any combination of
unpleasant emotions.7
10.69
Some jurisdictions sought to ensure that there are limits upon
liability in respect of secondary victims: see Civil Law (Wrongs) Act 2002
(ACT) Ch 3 Pt 3.2; Civil Liability Act 2002 (NSW) Pt 3; Civil Liability Act
1936 (SA) ss 33, 53; Civil Liability Act 2002 (Tas) Pt 8; Wrongs Act 1958 (Vic)
ss 73, 74; Civil Liability Act 2002 (WA) Pt 1B. The effect is that only certain
plaintiffs may be awarded damages for mental harm if they were a secondary
victim.
10.70
Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR 23
examined s 30(2) of the Civil Liability Act 2002 (NSW), which states:
The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
In that case the appellants suffered psychiatric injury due to attending the
scene of a passenger train derailment where passengers had been killed and
injured. The appellants, police officers, attempted to rescue survivors. The
High Court held (at [45]–[52]) that the respondent owed the appellants a
duty of care and that s 30(2)(a) of the Civil Liability Act 2002 (NSW) did not
preclude them from recovering damages. The appellants witnessed the
surviving passengers being injured or put in peril while they were
participating in the rescue.
In King v Philcox (2014) 320 ALR 398, the High Court examined the South
Australian provisions. Section 53(1) of the Civil Liability Act 1936 (SA)
provides:
Damages may only be awarded for mental harm if the injured person—
(a) was physically injured in the accident or was present at the scene of the accident when the
accident occurred; or
(b) is a parent, spouse, domestic partner or child of a person killed, injured or endangered in
the accident.
The respondent’s brother died in a motor vehicle accident due to the
negligence of the appellant. When he heard of the accident, the respondent
realised he had driven past the scene when his brother was trapped in the car
and dying. As a result, the respondent developed a major depressive order.
The High Court held that the appellant owed the respondent a duty of care
not to cause mental harm as under s 33 of the Civil Liability Act 1936 (SA)
and had breached that duty. However, damages could not be awarded as the
respondent was not ‘present at the scene of the accident when the accident
occurred’,
[page 217]
as being in the same locale after the accident did not satisfy this requirement.
Keane J held (at [53]):
Although it may be said that the accident was causally related to the mental harm from which he
suffered, that harm was not the result of direct exposure to the sights and sounds of the accident.
Accordingly, the respondent’s mental harm was, by reason of s 53(1)(a) of the Act, too remote
from the appellant’s negligent driving to be compensable.
The court held that the effect of the provision was to restrict the award of
damages to a parent, spouse, domestic partner of child of the victim, unless
the plaintiff was physically injured in the accident themselves or was at the
scene of the accident, and that to view the aftermath of the accident was
insufficient.
Coherency
10.71 In Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449, the
High Court thought that to recognise a duty of care would interfere with the
coherency of the law. The appellant alleged that a police officer had been
negligent in completing the traffic collision report which caused her
psychiatric injury. Police officers could not properly carry out investigations
if the law imposed a duty to take reasonable care to avoid causing stress to the
subject of the investigation: at [26] per Gleeson CJ, [57] per Gaudron J, [231]
per Gummow and Kirby JJ, [298] per Hayne J. See also Hunter and New
England Local Health District v McKenna; Hunter and New England Local
Health District v Simon (2014) 253 CLR 270; 314 ALR 505 (to recognise a
duty of care would be inconsistent with the duties and responsibilities of the
doctors and hospitals in respect of involuntary detention of mentally ill
persons and the Mental Health Act 1990 (NSW)).
Some members of the court in Tame also were of the opinion that the
proper cause of action was defamation as the claim involved the appellant’s
reputation: at [28] per Gleeson CJ, [58] per Gaudron J, [123] per McHugh J.
To impose a duty of care would therefore infringe upon the law of
defamation.
Pure Psychiatric Injury in an Established Duty
10.72
If the plaintiff and defendant are within an established duty
category, but the claim is for pure psychiatric harm, then the case is treated as
novel as it requires a consideration of whether the scope of the established
duty extends to foreseeable psychiatric injury: see 9.5.
In Woolworths Ltd v Perrins [2015] QCA 207 at [42], it was stated:
While it is trite law to assert that every employer owes to each employee a duty to exercise
reasonable care not to injure that employee, and further to assert that the duty extends as much
to foreseeable risks of psychiatric harm as to physical harm, the content of the duty of care is not
at large but needs to bring into account the contract that existed between the parties.
10.73 The scope of the duty owed by an employer to an employee in
regard to pure psychiatric injury was considered by the High Court in Koehler
v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355. In Koehler, the
plaintiff argued that her psychiatric illness was caused by the defendant
employer’s failure to reduce, in response to her complaints, the excessive
workload stipulated by her contract of employment. While ultimately
agreeing
[page 218]
with the Court of Appeal, that there was no breach of the duty of care,
McHugh, Gummow, Hayne and Heydon JJ also considered that insufficient
attention had been paid in the lower courts to the scope of the duty of care
owed by the defendant to its employee. Their Honours said (at [25]):
Issues about the content of the duty of care were not examined in any detail in the courts below.
It was assumed that the relevant duty of care was sufficiently stated as a duty to take all
reasonable steps to provide a safe system of work without examining what limits there might be
on the kinds of steps required of an employer. Rather, attention was directed only to questions
of breach of duty framed without any limitations that might flow from an examination of the
content of the duty of care. As earlier indicated, the question of reasonable foreseeability is
determinative.
Their Honours considered that the scope of the duty of care owed to the
plaintiff did not extend to the matters complained of by the plaintiff. This was
because it was not reasonably foreseeable that carrying out the tasks she had
agreed to under the contract of employment could cause the plaintiff to suffer
a psychiatric illness. As their Honours said (at [40]):
For present purposes, it is sufficient to notice that her agreement to undertake the tasks
stipulated (hesitant as that agreement was) runs contrary to the contention that the employer
ought reasonably to have appreciated that the performance of those tasks posed risks to the
appellant’s psychiatric health.
10.74 In Koehler, the High Court also considered that extending the scope
of the defendant’s duty of care, to encompass the prevention of psychiatric
injury, would be in conflict with the need to preserve the coherency of the
law. Given that the plaintiff had voluntarily entered into the contract of
employment with the defendant, their Honours held that to find that a duty
of care was owed would contravene the contractual principle that, subject to
statutory restraints, employers and employees should be free to stipulate the
amount of work which an employee agrees to perform under a contract of
employment: at [31].
10.75
When a claim for pure psychiatric injury arises from an
employment relationship, the court may consider whether the imposition of a
duty of care imposes upon the defendant’s legitimate business interests. In
Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR
100, an employee of the respondent was crushed to death by a forklift due to
the negligence of the driver of the forklift. The deceased employee’s three
children were later told of the incident and subsequently they and their
mother claimed to have suffered psychiatric injury caused by hearing of the
accident. Gummow and Kirby JJ were the only members of the court to refer
to the business interests of the respondent, stating (at [90]):
… there is no inconsistency between the existence of a duty of care to the appellants and the
legitimate pursuit by the respondent of its business interests [cf Bryan v Maloney (1995) 182
CLR 609 at 623–4; 128 ALR 163 at 169–70; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR
606 at [147]]. The respondent’s duty of care to the appellants to exercise reasonable care to avoid
causing them psychiatric injury as a consequence of their father’s death in the course of his
employment would be, at most, co-extensive with the tortious and express or implied
contractual duties that it owed Mr Gifford directly as his employer. The law requires an
employer in the position of the respondent so to order its affairs as to avoid causing injury or
death to its employees.
[page 219]
10.76 The High Court took a similar approach in New South Wales v Fahy
(2007) 232 CLR 486; 236 ALR 406, where Crennan J, for example, stated (at
[249]–[250]):
The criterion of reasonableness sets boundaries in respect of liability for psychiatric injury, and
anchors the boundaries in principle, rather than allowing them to depend on arbitrary and
indefensible distinctions.
A claim in respect of a psychiatric injury which is reasonably foreseeable is limited only by
reference to general considerations: the compatibility of a duty of care with any conflicting
professional responsibilities, whether imposed by statute or contract, and considerations of legal
coherence.
See the judgment of Gummow and Heydon JJ at [54]. See also Sneddon v
Speaker of the Legislative Assembly [2011] NSWSC 508 (plaintiff claimed
damages for psychiatric injury caused by employer’s breach of the nondelegable duty of care by failing to intervene when plaintiff was bullied,
harassed and victimised at work).
6
Pure Economic Loss
10.77 At common law, there is no doubt that a duty of care will be owed in
the majority of negligence actions causing physical injury to a person or their
property. Similarly, any economic loss suffered as a consequence of that
injury will be compensable as ‘consequential’ economic loss (for example,
hospital expenses and loss of wages). It is much more difficult to establish that
a duty is owed in regard to a loss which is solely economic, and not
consequential upon physical damage. This latter kind of harm or damage is
called ‘pure economic loss’ and it is only in special circumstances that a
common law duty of care will be recognised for this kind of loss. The refusal
of the common law to recognise that a duty of care could be owed (known as
an ‘exclusionary rule’) is based upon policy considerations, including the fear
of indeterminate liability and of unascertainable classes of plaintiffs: Caltex
Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11
ALR 227.
10.78
The classic case used to illustrate the distinction between
consequential and pure economic loss is Spartan Steel & Alloys Ltd v Martin
& Co (Contractors) Ltd [1973] QB 27. In this case, the defendant’s employees
damaged an electricity cable while digging up a road with a power-driven
excavating shovel. Metal in the plaintiff’s furnace at the time was damaged as
a result of the interruption to the electricity and had to be removed from the
furnace to avoid damage to the lining of the furnace. The plaintiffs claimed
the cost of the damaged metal removed from the furnace, the loss of the profit
from that metal and the loss of profits on the further melts that could not be
carried out while there was no electricity.
The English Court of Appeal held that the defendant was liable for the
physical damage to the metal, and for the loss of profit on its sale because that
loss was consequential upon the physical damage to the metal itself. In regard
to the loss resulting from the inability to conduct further melts, the court held
that this loss was not consequential upon physical damage to the plaintiff’s
property but resulted from damage to the electricity cable, the property of a
third party. This loss was therefore pure economic loss and no duty of care
was owed in regard to this kind of loss.
[page 220]
10.79 Claims in negligence for pure economic loss may be categorised as
follows:
Negligent misrepresentation The first exception to the common law
rule that no duty of care exists in regard to pure economic loss was
recognised by the House of Lords in Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 645. In this case, their Lordships were prepared
to recognise a limited exception to the common law exclusionary rule,
and to recognise that a duty could be owed in regard to negligent
misrepresentations causing pure economic loss.8 In Australia, a duty of
care in regard to negligent misrepresentations causing pure economic
loss was recognised in Mutual Life & Citizens Assurance Co Ltd v Evatt
(1968) 122 CLR 556; [1969] ALR 3. As misrepresentation has a
significant amount of case law and includes the tortious action of
deceit and has links with the Australian Consumer Law. This topic is
examined in Chapter 19.
Relational loss In Caltex Oil (Australia) Pty Ltd v The Dredge
‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227, the High Court
recognised a new kind of recoverable pure economic loss: relational
economic loss. A person suffers relational economic loss when their
pure economic loss is caused by damage to the property of a third
party: see 10.81ff.
Negligent provision of services The law recognises that a professional
owes a duty of care to clients to carry out the terms of their retainer:
see 9.102. However, in limited circumstances, a third party to that
relationship may recover for the pure economic loss suffered as a result
of negligent services by a professional: see 10.97ff.
Defective structures In Bryan v Maloney (1995) 182 CLR 609; 128
ALR 163, the High Court classified the loss arising from structural
defects to a subsequent purchaser of a residence as pure economic loss:
see 10.107.
However, like other duty categories, the pure economic loss duty category
continues to evolve and the High Court may recognise additional common
law duties being owed in the future. See Marsh v Baxter (2015) 49 WAR 1 at
[295]–[300] for an overview of the development of the categories of pure
economic loss.
10.80 The scope of the duty in cases of pure economic loss is more limited
than duties owed for physical damage. In Marsh v Baxter (2015) 49 WAR 1 at
[308], it was explained:
There are at least two policy reasons for that difference. They are first, the spectre of
indeterminate liability, whether in terms of time, amount or the class of potential plaintiffs.
Second, the infliction of pure economic loss in some circumstances is an accepted and
acceptable part of a competitive economy. Legitimate pursuit of market share is frequently at the
expense of a competitor. However these two factors alone do not adequately explain the
outcome in all cases.
Relational Loss
10.81 In 1976, the Australian High Court recognised that a person who
causes pure economic loss to another may owe a duty of care to that other
person if the pure economic
[page 221]
loss is causally related to physical damage to the property of a third party:
Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529
at 591; 11 ALR 227 at 273–4 (Caltex). Mason J stated:
Now that the recovery of economic damage not consequential upon property damage is
recognized in the case of negligent mis-statements, there is no sound reason for accepting the
traditional rule that only financial loss which is consequential upon property damage can be
recovered. The traditional rule is not only at odds with Hedley Byrne, it is based on an absolute
distinction between property damage and economic damage which is difficult to justify (see
Hedley Byrne [1964] AC at 517 and 538).
The problem is to yield compensation to the individual who suffers financial loss not necessarily
consequential upon damage to his property when that loss is closely connected with the failure
to take care and yet at the same time to deny compensation “in an indeterminate amount … to
an indeterminate class” (Ultramares Corporation v Touche (1931) 174 NE 441 at 444), in
particular, to a large class of persons whose loss arises because their use of a public utility or
facility has been interrupted.
Caltex
10.82 In Caltex, the defendant was dredging a channel in Botany Bay in
Sydney when it negligently ruptured a pipeline at the bottom of the bay. The
pipeline was owned by Australian Oil Refining Pty Ltd (AOR) and was used
to carry oil between their refinery on one side of Botany Bay and the Caltex
terminal on the other side. Since the pipeline was owned by AOR, the only
property damage Caltex suffered was the small amount of oil lost when the
pipeline was ruptured. The value of the lost oil was insignificant compared to
the financial loss suffered by the plaintiff in having to use trucks to transport
the oil around the bay while the pipeline was being repaired. It was the pure
economic loss of the substitute transport costs which formed the main issue
in Caltex.
10.83 The High Court unanimously held that the plaintiff was owed a duty
of care and entitled to recover damages for its alternate transportation costs.
However, no one approach to when a duty of care is owed for relational loss
emerges from their Honours’ judgments:
Gibbs and Mason JJ required the defendant to have been in a position
to foresee that Caltex, or a specifically foreseen and limited class of
persons, would suffer pure economic loss as a result of the defendant’s
negligent navigation: at CLR 555; ALR 245 per Gibbs J and at CLR 593;
ALR 274 per Mason J.
Jacobs J considered that the question of whether the loss was physical
or economic irrelevant, and allowed recovery because the effect on the
property of Caltex was a foreseeable result: at CLR 604; ALR 284–5.
Stephen J propounded a proximity test, requiring an especially close
relationship between the tortious act and pure economic loss: at CLR
574–8; ALR 260–3.
Murphy J held that there were no policy reasons why recovery of the
loss should not be allowed: at CLR 606; ALR 286.
Critical to all of the judgments in Caltex, was:
the pure economic loss was reasonably foreseeable; and
[page 222]
the defendant knew of the plaintiff, specifically Caltex, as the sole
member of an ascertained class.
10.84 In these circumstances, there was no possibility of indeterminate
liability and the main policy consideration against recognising a duty in
regard to pure economic loss was not applicable: compare Ball v Consolidated
Rutile Ltd [1991] 1 Qd R 524; Christopher v MV ‘Fiji Gas’ (1983) Aust Torts
Reports ¶81-202.
10.85 Caltex has rarely been successfully applied to find a duty of care. For
example, in Christopher v MV ‘Fiji Gas’, the court held that the plaintiffs were
not known by the defendant as individuals, only as members of an
unascertained class. See also Ball v Consolidated Rutile Ltd where the same
issue prevented a duty of care arising.
However, the decision was confirmed by the High Court in Perre v Apand
Pty Ltd (1999) 198 CLR 180; 164 ALR 606. McHugh J, for example, stated (at
[113]):
The reasoning in Caltex has been rejected by the Supreme Court of Canada … But I think that
the decision was plainly right. The risk of loss to Caltex was reasonably foreseeable; no question
of indeterminate liability arose; the defendant’s freedom of action was not impaired by imposing
a duty because it already owed a duty to the owner of the pipelines; Caltex could not readily
avoid the risk of incurring the relevant expenses; and the defendant “must be taken to have
known that carelessness in those operations, causing injury to the pipelines, would affect Caltex
in precisely the way it did” (Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136
CLR 529 at 578; 11 ALR 227 at 263 per Stephen J). The only criticism that I have of the
reasoning in Caltex is that it imposed too narrow a test for determining to whom a duty was
owed.
10.86 This particular area of novel duty commonly has as one of its main
concerns, the issue of indeterminacy in terms of whether there is an
ascertainable class as well as whether the defendant’s potential liability is out
of proportion to the negligent act of omission: Caltex at CLR 551–2; ALR
241–2. Since the decision of Caltex, the development of the approach to novel
duties of care has led to a consideration of the defendant’s control, the
vulnerability of the plaintiff and due to the type of activity usually involved in
these claims, whether a duty would conflict with the pursuit of a legitimate
business interest.
Caltex was applied in Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’
[2008] 1 Qd R 429, with the Queensland Court of Appeal holding that the
decision of Caltex needed to be supplemented (at [6]):
Caltex and Perre suggest that the determination of whether a defendant owes a claimant a duty
of care not to cause mere economic loss will depend on a combination of factors including the
reasonable foresight of the likelihood of harm; the defendant’s knowledge or means of
knowledge of an ascertainable, determinate class of persons who are at risk of foreseeable harm;
the claimant’s vulnerability or whether they are unable to protect themselves from the
foreseeable harm; whether the implication of a duty would impair the defendant’s legitimate
pursuit of autonomous commercial interests including the existence of any contracts between
the claimant and defendant; whether the damage flowed from the occurrence of activities within
the defendant’s control; the closeness of the relationship between the parties and the existence of
any other special circumstances justifying compensation [footnotes omitted].
[page 223]
Ascertainable class
10.87
If the negligence primarily affects the plaintiff, they may be
described as a ‘first line’ victim; however, due to the natural ‘ripple effect of
economic loss on the first line victims’, the issue of indeterminate liability is a
very real one: Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at
[112] per McHugh J. Therefore it is possible that the class of persons affected
by the negligence may extend beyond the more readily identifiable first line
victims.
Caltex was applied in Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’
[2008] 1 Qd R 429, but supplemented by reference to the decision of Perre v
Apand Pty Ltd.
10.88 In Fortuna Seafoods Pty Ltd, the appellant’s negligence caused a
ship, the Melina T, to sink. The Melina T was part of a fleet owned by Fortuna
Fishing Pty Ltd and the respondent, Fortuna Seafood Pty Ltd, processed and
sold its fish. The two companies were part of a vertically integrated
commercial operation with common directors and shareholders. The trial
judge had found that a duty of care was owed as the appellant had the means
of knowledge that the respondent was a member of an ascertainable
determinate class of persons likely to suffer economic loss if the appellant was
negligent. On appeal, the appellant argued that the judge had erred in
drawing that inference.
A majority of the Queensland Court of Appeal held that a duty of care was
owed. It was held that knowledge of the injured party was satisfied if the
appellant knew, or had the means of knowing, that the respondent was a
member of an ascertainable class of vulnerable persons unable to protect their
interests. McMurdo P stated (at [15]):
… I would not find the existence of a duty of care here unless satisfied that Eternal Wind’s
master or its owner, Ganta, through Ganta’s officers, had the means of knowledge that Fortuna
Seafoods was a member of a determinate ascertainable class of persons or entities who were at
risk of foreseeable economic harm if Eternal Wind acted negligently in colliding with and
sinking Melina T.
10.89 As the evidence was that vertically integrated commercial operations
such as those between the respondent and the owner of the ship were
common in the fishing industry, ‘it could reasonably be inferred from this
evidence that such information was within the means of knowledge of the
master or owner of Eternal Wind’’: at [17]. Further, due to the vertically
integrated commercial operation, the size of the class of potential plaintiffs
was restricted so as to not give rise to concerns of indeterminate liability: at
[17]. As explained by McMurdo P (at [24]):
Fortuna Seafoods’ loss flowed directly from activities within the control of the master of Eternal
Wind: the negligent operation of Eternal Wind resulting in the sinking of Melina T meant that
Fortuna Seafoods could not process its sister company’s catch and suffered economic loss.
Fortuna Seafoods was within the class of those whom McHugh J in Perre called first line victims.
10.90 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts
Reports ¶81-692, the Victorian Supreme Court held that there was no duty of
care owed in respect of the pure economic loss suffered due to the
interruption of the gas supply due to the defendant’s negligence. The
defendant sold gas to the main supplier of natural gas in
[page 224]
Victoria. Due to damage at one of the defendant’s processing plants, the
supply of gas to domestic and most business users was interrupted for
approximately 12 days. The loss was summarised as:
The diminution in supply and, ultimately, the cessation of the supply of gas, caused considerable
inconvenience to the consumers of gas in this State and also caused loss and damage to a
substantial number.
Business users were deprived of the supply of gas, which meant that plants and equipment had
to be shut down with the result that materials were damaged or destroyed or had to be disposed
of, and plant and equipment was damaged. In addition, businesses suffered losses, including lost
profits, and incurred expenses.
Domestic users suffered the inconvenience of not having hot water for bathing and washing.
They could not use gas fired cooking appliances. Some domestic users purchased electrical
equipment such as kettles, urns, cookers and microwave ovens to overcome the lack of gas.
Some had to dispose of food, which deteriorated to the point of being unfit for human
consumption. Some experienced damage to gas hot water heaters when the supply was
reconnected.
Some of the stood-down workers suffered loss of income and also suffered the inconvenience of
taking part of their annual leave entitlements at short notice: at [36]–[39].
The issue before the court was ‘Did Esso owe a duty of care to the plaintiffs
and the various group members who were gas customers and to the stooddown workers who were employed by gas customers not to interrupt the
supply of natural gas, to avoid causing them purely economic loss?’: at [793].
It was held that the economic loss suffered by plaintiffs, the gas customers
and the stood-down workers, was reasonably foreseeable: at [839]. Applying
the ‘neighbour’ test from Donoghue v Stevenson [1932] AC 562, it was held
that the defendant ought to have had within its contemplation as being
closely and directly affected by it acts or omissions, not only the gas
customers, but also workers who were stood down due to closure of
businesses: at [845] and [850]. As to whether there was an ascertainable class
of plaintiffs, the business and domestic gas customers were considered to be
‘first line’ victims. However, the stood-down workers, the ‘second line’
victims of the negligence, were members of an unascertainable class: at [938].
Further, as claims would have to be proven, loss not being dependent upon
the state of the claimant’s mind, the floodgates factor was not a reason to
deny a duty of care to the gas customers: at [954].
Control and vulnerability
10.91
The defendant’s control of the situation that gives rise to the
negligence obviously is relevant to the plaintiff’s vulnerability. Vulnerability
was highlighted as relevant in imposing a duty of care for pure economic loss
in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [118], McHugh
J stating:
If the plaintiff has taken, or could have taken, steps to protect itself from the defendant’s
conduct and was not induced by the defendant’s conduct from taking such steps, there is no
reason why the law should step in and impose a duty on the defendant to protect the plaintiff
from the risk of pure economic loss.
[page 225]
In that case it was noted that a defendant who knows the plaintiff as an
individual and that they are reliant upon them, gives rise to vulnerability: at
[10]. See also Barclay v Penberthy (2012) 90 ALJR 610; 291 ALR 608 at [174].
10.92 In Marsh v Baxter (2015) 49 WAR 1, the appellants were certified
organic farmers and the respondent carried on a farming business that
included growing cereal crops and canola. The appellants lost their
certification for growing organic produce after genetically modified canola
was blown onto their property during the respondent’s harvesting process. As
there was no physical damage to the appellant’s crop, the loss was the loss of
certification, the claim was for pure economic loss. A majority of the court
held that there was no duty of care owed. In relation to the vulnerability of
the appellant, the majority held that the appellants could not be described as
vulnerable. The assessment of the appellants’ vulnerability had to take into
account their obligations under the contract with the organisation that
certified their farm as organic. The majority noted (at [684]):
It is not obvious that the appellants would remain at risk of withdrawal of certification … if they
undertook preventative measures, such as the planting of trees for natural screening and the
erection of physical barriers; the carrying out of visual inspections for, and removal of, any GM
plant material, such as swathes, where there was a risk of high winds in the two to three weeks
that swathes were left in windrows; or in undertaking to [National Association of Sustainable
Agriculture (Australia) Ltd] to carry out inspections for, and removal of, any volunteer GM
plants that might subsequently emerge.
Unlike the situation in Perre, the appellants were aware of the respondent’s
genetically modified canola and therefore could appreciate the risk to which
they were exposed: at [691].
10.93 As a plaintiff’s claim based upon relational loss will arise in the
commercial context, are they vulnerable if they could have taken out
insurance to protect against the loss? In Perre, McHugh J held, ‘Whether the
plaintiff has purchased, or is able to purchase, insurance is, however,
generally not relevant to the issue of vulnerability’: at [130]. This was also the
view of Stephen J in Caltex (1976) 136 CLR 529 at 580–1; 11 ALR 227 at 265.
See also Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R
429 at [23]. However, see Gillard J’s view in Johnson Tiles Pty Ltd v Esso
Australia Pty Ltd (2003) Aust Torts Reports ¶81-692 at [1347], where after
reviewing the possible avenues open to the plaintiffs to protect against loss
arising from an interruption to the gas supply, his Honour held that the
availability of insurance was something that the plaintiffs could have taken
advantage of to protect against loss.
In Barclay v Penberthy (2012) 291 ALR 608, the majority did not think that
merely because the plaintiff was a commercial entity led to the conclusion
that it could have negotiated protection against loss through its contract and
was therefore not vulnerable: at [47] and [177].
Interference with ordinary commercial behaviour
10.94 Regard must be had to whether a duty imposed for the relational
loss would impede the defendant’s right to pursue its business interests: Perre
v Apand (1999) 198 CLR 180; 164 ALR 606 at [115]; Caltex (1976) 136 CLR
529 at 578; 11 ALR 227 at 263. In Hardie Finance Corporation Pty Ltd v Ahern
(No 3) [2010] WASC 403 at [366], Pritchard J stated:
[page 226]
… if a person is legitimately protecting or pursuing his or her social or business interests, the
common law will not require that person to be concerned with the effect of their conduct on the
economic interests of others, even when the person knows that their actions will cause loss to a
specific individual …
10.95 In Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R
429, it was examined ‘whether the implication of a duty would impair the
defendant’s legitimate pursuit of autonomous commercial interests including
the existence of any contracts between the claimant and defendant’: at [6]
(footnotes omitted). McMurdo P held that there was no conflict:
The imposition of a duty of care on Eternal Wind not to negligently cause economic loss to
Fortuna Seafoods by colliding with and sinking the Melina T does not impair the appellant’s
pursuit of its autonomous commercial interests. The group to which Fortuna Seafoods belongs
is a relatively small and determinate class of fish processors and marketers closely affiliated
through integrated company structures with owners of fishing vessels. There was no contractual
relationship between the appellant and Fortuna Seafoods: at [22].
10.96 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts
Reports ¶81-692, it was held that the imposition of a duty would not create
any inconsistency with the defendant’s legitimate pursuit of its economic
interests. The defendant sold its gas to the gas retailer with the intention it
would be on-sold to the consumer. Therefore, imposing a duty of care would
‘not in any way cut across its legitimate business activities or impede them’: at
[964].
Negligent Provision of Services
10.97 It is an established duty of care that professionals must exercise
reasonable care in performing the terms of their retainer when acting for a
client: see 9.106. But what if a party who is not a client is reliant upon the
professional and suffers pure economic loss as a result? In Bryan v Maloney
(1995) 182 CLR 609 at 619; 128 ALR 163 at 166, Mason CJ, Deane and
Gaudron JJ observed:
… commonly, but not necessarily, [a duty will arise in cases which] will involve an identified
element of known reliance (or dependence) or the assumption of responsibility or a
combination of the two.
10.98
If the alleged negligence relates to the giving of advice or
information, an action in negligent misrepresentation may arise: see Chapter
19. However, if the plaintiff relies upon the professional to do their work for
their client competently and suffers the loss, the law may recognise a duty of
care in limited circumstances: Hill (t/as R F Hill & Associates) v Van Erp
(1997) 188 CLR 159; 142 ALR 687 (Hill v Van Erp).
10.99
Traditionally, the common law courts have been reluctant to
recognise extending the scope of a solicitor’s duty to include third parties to
the solicitor–client relationship. The reason for such reluctance is the concern
that there could be a conflict between the interests of the client and those of
the third party: Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687; Hawkins v
Clayton (1988) 164 CLR 539; 78 ALR 69; Ross v Caunters [1980] Ch 297;
[1979] 3 All ER 580. Nevertheless, it has been recognised that a solicitor may
owe a duty of care to a third party if the interests of the client and the third
party coincide (Hill v Van Erp;
[page 227]
Badenach v Calvert (2016) 90 ALJR 610; 331 ALR 48) and recognition of the
duty creates no incoherency in law: Sullivan v Moody (2001) 207 CLR 562;
183 ALR 404.
10.100 In Hill v Van Erp, the plaintiff had been named as a beneficiary in
the will of her friend and neighbour, the late Mrs Currey. The defendant
solicitor had drawn up and supervised the execution of Mrs Currey’s will. The
will was executed at the client’s home and, at the request of the defendant,
was witnessed by the plaintiff’s husband. This meant that, pursuant to s 15(1)
of the Succession Act 1981 (Qld), the gift to the plaintiff was invalid and the
bequest, valued at $163,471.50, went to the residual legatee, the deceased’s
son. The High Court, in a 5:1 decision, found in the plaintiff’s favour, despite
the general rule that professionals only owe a duty to their clients and not to
third parties, even if the third party purports to rely on the professional’s
skills and judgment.
10.101 As to the scope of the duty, in Vagg v McPhee (2013) 85 NSWLR
154 at [52], Tobias JA noted that the High Court did not ‘fully answer the
question of how far the duty extends in relation to instructions given
regarding the assets of an estate’.
Control and vulnerability
10.102 If a professional is providing a service, it may be that they are in a
position of control, but that does not necessarily equate with an assumption
of responsibility: Hill v Van Erp at CLR 198; ALR 716. In Hill v Van Erp, it
was held that the solicitor was in a position of control as to ‘whether Mrs Van
Erp would acquire the right to have Mrs Currey’s estate properly
administered in accordance with the terms of her will’: at CLR 199; ALR 717.
10.103 Any vulnerability on the part of the plaintiff must be assessed as at
the time of the alleged breach. Consideration may be given to the question of
whether the plaintiff would suffer loss if the professional was negligent in the
provision of their service, but also what practical precautions were available
to the plaintiff and if they had the capacity to adopt any of those precautions:
Hill v Van Erp at CLR 186; ALR 707 per Dawson J; at CLR 216; ALR 727 per
McHugh J.
In Hill v Van Erp, it was observed that in respect of the execution of a will,
it was usually the solicitor and client who had access to the will and the client
was not expected to review the will for any defects. Further, any mistake in
the execution of the will could only be discovered after the client’s death and
therefore ‘[i]n this respect the intended beneficiary is particularly vulnerable’:
at CLR 186; ALR 707.
Coherency
10.104
In Hill v Van Erp, Brennan CJ stated (at CLR 167; ALR 691–2):
… generally a solicitor’s duty is owed solely to the client subject to the rules and standards of the
profession (see White v Jones [1995] 2 AC 207 at 223). … But the interests of a client who retains
a solicitor to carry out the client’s testamentary instructions and the interests of an intended
beneficiary are coincident.
Most testators seek the assistance of a solicitor to make their intentions effective. The very
purpose of a testator’s retaining of a solicitor is to ensure that the testator’s instructions to make
a testamentary gift to a beneficiary result in the beneficiary’s taking that gift on the death of the
testator.
[page 228]
10.105
If the plaintiff’s interests do not coincide with those of the
solicitor’s client, this goes against a duty of care being owed, as would if the
solicitor was obliged to act exclusively in the client’s interests: Hill v Van Erp
at CLR 196–7; ALR 715; Hardie Finance Corporation Pty Ltd v Ahern (No 3)
[2010] WASC 403; Tobin v Dodd [2004] WASCA 288; Talbot and Olivier (a
firm) v Witcombe (2006) 32 WAR 179; Thompson v Canik (1998) 145 FLR
438. See David v David [2009] NSWCA 8, where it was alleged that the
solicitor owed a duty to the appellants as persons who may enter into
contracts with his client. The solicitor never gave advice to the appellants who
signed contracts prepared by him for his client. The court held that no duty of
care was owed to the appellants, stating (at [92]):
In the circumstances here, there was plainly no duty owed to persons not clients of the solicitor
to undertake steps that would have been contrary to the interests of the solicitor’s client. It is
unnecessary to discuss the circumstances in which a solicitor may come under a duty of care in
the effecting of his or her retainer to his or her client to take into account the interests of third
parties. However, save for circumstances of assumption of duty (and leaving to one side
knowledge of fraud), it would be an extraordinary development of the law to impose upon the
solicitor a duty to take some step or give some advice to a third party that was inconsistent with
the interests of his primary client.
In Queensland Art Gallery Board of Trustees v Henderson Trout (a firm)
[2000] QCA 93 at [31], Pincus JA of the Queensland Court of Appeal was of
the opinion that:
If a mistake in arranging for the execution of a Will as in Hill v Van Erp and in Somerville v
Walsh, NSW Court of Appeal CA 40321 of 1997, 26 February 1998, suffices to create a duty of
care, then I can see no reason why it should be held that a disappointed beneficiary, whose hope
of benefit is evident to the solicitor engaged, should not have a right to sue if that hope fails of
realisation because of the solicitor’s culpable delay in preparing a Will.
In that case the plaintiff alleged that the solicitor had delayed in executing a
new will of their client causing it to lose the intended bequest of their client’s
art collection. The claim failed as the evidence did not establish that the client
had made up her mind about the bequest.
See also Badenach v Calvert (2016) 90 ALJR 610; 331 ALR 48, where the
High Court held that a solicitor did not owe a duty of care to a beneficiary of
a client testator to advise the client testator of their available options to avoid
their estate being subject to a claim under the Testators Family Maintenance
Act 1912 (Tas). The court held that the interests of the testator and
beneficiary were not co-extensive and that the scope of the duty owed by the
solicitor to the beneficiary was narrower. French CJ, Kiefel and Keane JJ
stated (at [47]):
The interests of the client and the respondent as parties to the proposed inter vivos transactions
are not the same as those of a testator and intended beneficiary with respect to the execution of
final testamentary intentions. The advices and warnings which the solicitor would need to give
about such transactions would reflect that their interests are not coincident. … This is not a
circumstance which could arise where a solicitor was merely carrying into effect a testator’s
intentions as stated in his or her final will.
Indeterminacy
10.106 In Hill v Van Erp, indeterminate liability was held not to be an
issue as the terms of the will constrained the liability. In Hardie Finance
Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403, it was alleged that the
solicitor’s negligent advice to
[page 229]
his client had caused the plaintiff to suffer economic loss. The court held (at
[445]) that to impose a duty of care in the circumstances would expose the
solicitor to indeterminate liability:
… solicitors traditionally provide advice on almost all aspects of commercial and corporate
liability, much of which, when acted upon, will affect a wide range of persons including
employees, investors and creditors.
See also Carey v Freehills (2013) 303 ALR 445, where the court noted that
the law is resistant to extend a solicitor’s duty beyond the corporate client to
the shareholders or other related entities. However, the court also pointed out
that it is not impossible, if a duty may be established by a consideration of the
salient features of novel duties: at [323].
Defective Buildings
10.107 A duty of care is owed by a builder to the client in the construction
of a house. Houses get sold and subsequent purchasers are not in any
contractual relationship with the builder. If the building is defective due to
the builder’s negligence and the damage arises when the house is in the
possession of a subsequent purchaser, the law may impose a duty of care
upon the builder. The loss suffered by the subsequent purchaser has been
classified by the High Court as pure economic loss: Sutherland Shire Council v
Heyman (1985) 157 CLR 424 at 505; 60 ALR 1 at 61 per Deane J; Bryan v
Maloney (1995) 182 CLR 609; 128 ALR 163. The reasoning for this
classification is that when the defects manifest after the subsequent purchase
of the property, the purchaser has paid more than what the property was
worth and in some cases the rectification costs will arise in the future.
Bryan v Maloney
10.108
In Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163, the
appellant was a professional builder who built a house for Mrs Manion. The
house was later sold to another party who then sold it to the respondent. Six
months after the respondent purchased the house, cracks appeared in the
walls. The cause of the cracks was the inadequate footings in the building.
Despite the fact that there was no contract between the appellant builder and
the respondent, the appellant was found liable for the diminution in the value
of the property. In coming to its decision, the High Court was concerned with
the control of the builder, the vulnerability of the subsequent purchaser and
the coherency of the law and the relationships between the parties.
10.109 Bryan v Maloney involved the subsequent purchase of a domestic
building. The High Court approved its decision of Bryan v Maloney in
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205
ALR 522, but held that no duty of care was owed to the subsequent purchaser
of defective commercial premises.
Control and vulnerability
10.110
One of the critical factors in the High Court finding in the
respondent’s favour in Bryan v Maloney was the respondent’s inability to
protect her own interests and the appellant’s possession of specialist
knowledge and skills, which meant that, as the builder,
[page 230]
he was in overall control of the house construction. Mason CJ and Deane and
Gaudron JJ commented that policy considerations supported the finding of a
duty owed by the builder to the plaintiff because:
… by virtue of superior knowledge, skill and experience in the construction of houses, it is likely
that a builder will be better qualified and positioned to avoid, evaluate and guard against the
financial risk posed by latent defect in the structure of a house: at CLR 627; ALR 171.
10.111 In contrast, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd
(2004) 216 CLR 515; 205 ALR 522, the High Court found in favour of the
defendant because the plaintiff had the ability and resources to protect its
own commercial interests and was not, therefore, vulnerable.9 In Woolcock
Street Investments, the plaintiff had purchased a commercial property which
subsequently developed structural defects due to either the defendant’s
negligent design of the footings or its negligent supervision over their
construction.
The High Court held by a 6:1 majority that no duty of care was owed to the
defendants. Gleeson CJ, Gummow, Hayne and Heydon JJ considered that:
… the appellant was [not], in any relevant sense, vulnerable to the economic consequences of
any negligence of the respondents in their design of the foundations for the building … It may
be accepted that the appellant bought the building not knowing that the foundations were
inadequate. It is not alleged or agreed, however, that the defects of which complaint now is
made could not have been discovered: at [31]–[32].
Their Honours also considered that vulnerability, in the context of pure
economic loss cases, is not to be understood as meaning that the plaintiff was
likely to suffer damage if reasonable care was not taken by the defendant.
Instead, their Honours considered that vulnerability:
… is to be understood as a reference to the plaintiff’s inability to protect itself from the
consequences of a defendant’s want of reasonable care, either entirely or at least in a way which
would cast the consequences of loss on the defendant: at [23].
McHugh J, also in the majority, somewhat more expansively, considered
that vulnerability means:
… that by reason of ignorance or social, political or economic constraints, the plaintiff was not
able to protect him or herself from the risk of injury: at [80].
10.112
Kirby J, however, was critical of the restricted approach to
vulnerability adopted by the other members of the court. In his Honour’s
opinion, the concept of vulnerability is more complex and should be
determined by all the circumstances of the individual case under
consideration. Moreover, his Honour considered that no assumption should
be made that those involved in a commercial enterprise are able to protect
their own economic interests. In particular, his Honour referred to the case of
Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 and said (at [168])
that vulnerability could extend to plaintiffs such as those in that case, who:
… might be carrying on a profitable economic enterprise but who are exposed to an insidious
risk by the acts of others about which they were unaware and against which they could not
reasonably protect themselves.
[page 231]
His Honour went on to say (at [169]):
I accept that the capacity of an entity to protect itself and its interests is an important factor in
determining vulnerability. However, it is not the only one. In a commercial context there may
be many more to be considered — assumption of risk, known reliance and commercial
pressures, to name but a few. With the benefit of hindsight it is easy to suggest that an entity
should have protected itself. However, courts should be reluctant to assume that a commercial
entity lacked vulnerability simply because of its commercial character.
In the present case, he considered the plaintiff was vulnerable because:
… it had no reasonable intermediate opportunity of discovering, and protecting itself against,
the latent defect of which it now complains. That defect was under the ground and beneath the
building. According to the pleadings, it only became known to the appellant when the ‘distress’,
which the defect caused to the building, first began to manifest itself in outward signs: at [173].
Kirby J was in dissent in holding that the plaintiff’s case should not be
dismissed until a court had had an opportunity to consider all the facts
relating to the plaintiff’s vulnerability and not just those agreed upon for the
purposes of the appeal: at [178].
See also Barclay v Penberthy (2012) 291 ALR 608, where the court referred
to Woolcock Street Investments Pty Ltd v CDG Pty Ltd in its discussion of
vulnerability, and Chan v Acres [2015] NSWSC 1885.
10.113 In Project Company No 2 Pty Ltd v Cushway Blackford & Associates
Pty Ltd [2011] QCA 102, both of these High Court cases were discussed as the
court was required to review the law in order to determine whether a party
could be joined to the proceedings. In that case, the appellant contracted with
BLL to build an abattoir and associated facilities in Toowoomba. BLL engaged
the respondent and Harwal (third respondent) as subcontractors. The
respondent supplied the electrical design, inspection and certification services
and Harwal designed and constructed the abattoir’s switchboards. The parent
company purchased all of the shares in the appellant four years later and then
the appellant granted its parent company a licence to operate the abattoir, but
maintained ownership of the plant and equipment. A fire in the main
switchboard caused the abattoir facility to be shut down for five weeks and
the appellant alleged that the respondents were negligent. It became apparent
that it was the parent company that had suffered some of the losses claimed in
the negligence proceedings, not the appellant. The trial judge held that the
principles in Bryan v Maloney did not extend to commercial premises. The
Queensland Court of Appeal noted the differences between the facts of the
case before it and the High Court decisions — ‘the land and improvements
continued throughout in the ownership of [the appellant], the original
contracting party’: at [16]. Further, it was not a structural or design defect in a
building: the alleged negligence was a failure in the switchboard which caused
a fire which then caused the abattoir to cease operation for five weeks,
incurring trading losses.
The respondent argued that the appellant was not vulnerable as the parent
company could have obtained a warranty or an assignment of rights from the
appellant and further, that the appellant’s own expert report demonstrated
that an examination of the electrical drawings and switchboard before the
parent company started to use the
[page 232]
abattoir facilities would have revealed the alleged defects. The court
disagreed, stating (at [19]):
… what is reasonable for parties at arms length in a transaction of sale and purchase may not be
reasonable or even appropriate for dealings between companies in the same group engaged in
quite a different transaction.
Therefore, despite being a company and having the avenue of seeking a
warranty or assignment of rights available to it, as identified in Woolcock
Street Investments Pty Ltd v CDG Pty Ltd, the Court of Appeal held that the
appellant was not necessarily not vulnerable.
10.114
Vulnerability was also an issue in Brookfield Multiplex Ltd v
Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408. The appellant
contracted with a property developer to construct strata-titled serviced
apartments. Under the strata title legislation, upon registration of the plan, a
body corporate comes into existence, the respondent in this case. The
respondent alleged that the construction had been negligent and there were
defects in the common property. In considering whether the respondent was
vulnerable, Hayne and Kiefel JJ stated (at [56]–[57]):
It may be assumed, without deciding, that the developer and the purchaser of a lot from the
developer relied on the builder to do its work properly. The purchaser of a lot could not check
the quality of the builder’s work as it was being done. Perhaps the developer was in no different
position. (That would turn on what meaning is given to the superintendence provisions of the
developer’s contract with the builder.) The [respondent] was in no better position to check the
quality of the builder’s work as it was being done than the original purchaser of a lot. Because
these parties could not check the quality of what the builder was doing, it can easily be said that
each relied on the builder to do its work properly.
Reliance, in the sense just described, may be a necessary element in demonstrating vulnerability,
but it is not a sufficient element. As noted earlier, vulnerability is concerned with a plaintiff’s
inability to protect itself from the defendant’s want of reasonable care, either entirely or at least
in a way which would cast the consequences of loss on the defendant.
The court was unanimous in that the respondent was not vulnerable in the
sense it could not protect itself. French CJ held (at [3]):
The nature and content of the contractual arrangements, including detailed provisions for
dealing with and limiting defects liability, the sophistication of the parties and the relationship
of [the property developer] to the [respondent] all militate against the existence of the asserted
duty of care to either [the property developer] or the [respondent].
See also Chan v Acres [2015] NSWSC 1885.
Coherency
10.115
In Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216
CLR 515; 205 ALR 522 at [102], McHugh J stated:
Law is too complex for it to be a seamless web. But, so far as possible, courts should try to make
its principles and policies coherent (Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at
[55]). Accordingly, it is always relevant in determining whether to create, extend
[page 233]
or formulate a duty in tort to consider whether it is consistent with other legal doctrines,
principles and policies.
The High Court held that there was no disconformity between the
obligations owed to the original owner and the subsequent purchaser.
Gleeson CJ, Gummow, Hayne and Heydon JJ referred to Voli v Inglewood
Shire Council (1963) 110 CLR 74 at 85, in which Windeyer J noted that the
contract between the builder and original owner was not irrelevant and stated
that the:
… contract defines the task which the builder or engineer undertook. There would be evident
difficulty in holding that the respondents owed the appellant a duty of care to avoid economic
loss to a subsequent owner if performance of that duty would have required the respondents to
do more or different work than the contract with the original owner required or permitted: at
[28].
See also Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254
CLR 185; 313 ALR 408 at [144], where it was held that to impose a duty to
prevent foreseeable economic loss to a property developer from an obligation
to make good any latent defects in the building, would affect the contractual
allocation of risk as agreed between the parties. To allow the subsequent
purchasers of the building to recover loss from the builder, when the builder
was not liable to the party for whom they constructed the building and
received payment from, ‘would reduce the common law to incoherence’: at
[69] citing Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216
CLR 515; 205 ALR 522 at [28].
Relationships
10.116 Although there is no contractual relationship between the builder
or engineer and a subsequent purchaser, the High Court in Bryan v Maloney
(1995) 182 CLR 609 at 625; 128 ALR 163 at 170–1 pointed out that there was
some connection:
the house was a permanent structure likely to be used indefinitely and
was a significant investment for a purchaser;
a builder would be able to foresee that the negligent construction of a
house with inadequate footings was likely to cause economic loss when
this manifested; and
no intervening act of negligence or other event would occur between
the construction and the economic loss being suffered.
See Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236,
decided before Woolcock Street Investments Pty Ltd v CDG Pty Ltd, where the
Queensland Court of Appeal held that ‘[t]he purchaser of a substantial
commercial building acquired for profit does not fit the description of a
purchaser of a modest suburban house who “is likely to be unskilled in
building matters and inexperienced in the niceties of real property
investment”’: at [36], citing Bryan v Maloney at CLR 627; ALR 171.
10.117 Recognising a duty of care in respect of defective structures does
not require a consideration of whether a duty would conflict with a
defendant’s right to pursue its legitimate business interests: Woolcock Street
Investments Pty Ltd v CDG Pty Ltd at [79]; Bryan v Maloney at CLR 623–4;
ALR 169–70.
[page 234]
Indeterminacy
10.118
Although indeterminate liability was considered in Bryan v
Maloney and Woolcock Street Investments Pty Ltd v CDG Pty Ltd, in neither
case did it negate a duty of care possibly being owed in the circumstances. In
Woolcock Street Investments Pty Ltd v CDG Pty Ltd at [77], McHugh J held:
Indeterminacy of liability is a factor that will ordinarily defeat a claim that the defendant owed a
duty of care to persons such as the plaintiff. But it is not likely to be a significant issue in cases
concerned with economic loss suffered by the subsequent purchaser of a commercial building
that is or becomes defective by reason of negligent design or construction. Liability will
ordinarily be restricted to the owner of the building when damage manifests itself.
Indeterminacy of liability may be a relevant factor where occupants of the building claim
damages for economic loss arising out of the defective design or construction of the building.
But when the first owner or a subsequent purchaser of a commercial building claims damages
for pure economic loss, indeterminacy of liability is not an issue.
A defendant would only be liable for the diminution of the value of the
property or the cost of rectification to the owner as at the time the damage
manifests.
See also Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254
CLR 185; 313 ALR 408 at [175]; Project Company No 2 Pty Ltd v Cushway
Blackford & Associates Pty Ltd [2011] QCA 102 at [23].
Legislation
10.119 There is legislation in all Australian jurisdictions that imposes
liability for defective structures upon the builder for a specified period by
implying warranties. For example, in Victoria, Pt 2, Div 1 of the Domestic
Building Contracts Act 1995 provides that if there is defective building work
and an owner notifies the builder within 10 years of the Certificate of
Occupancy or the Certificate of Final Inspection, the builder will be liable.
See also Building Act 2004 (ACT) Pt 6; Home Building Act 1989 (NSW) Pt
2C; Queensland and Construction Commission Act 1991 (Qld) s 67AZN, Sch
1B; Building Work Contractors Act 1995 (SA) s 32; Housing Indemnity Act
1992 (Tas) s 8.
7
Liability of Public Authorities
10.120
A public, or statutory, authority is a legal body created by
parliament to act on behalf of the executive branch of the government.10
Examples of public authorities usually include city, municipal and local
councils, fire, police, health and similar government departments and road,
rail and transport authorities. Each of these public authorities has its
responsibilities, functions and powers specified and regulated by the Act of
parliament which resulted in its creation. Under the Westminster separation
of powers doctrine (between the executive, judicial and parliamentary
branches of government), negligent policy decisions
[page 235]
made by public authorities are excluded from judicial review or consideration
by the Australian courts: see 10.135.
10.121 The relationship between the plaintiff and the public authority may
fall within one of the established duty categories. As noted by McHugh in
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167
ALR 1 at [61]:
The correct approach in determining whether a statutory authority owes a duty of care is to
commence by ascertaining whether the case comes within a factual category where duties of care
have or have not been held to arise. Employer and employee, driver and passenger, carrier and
consignee are a few examples of the many categories or relationships where, absent statute or
contract to the contrary, the courts have held that one person always owes a duty of care to
another. Frequently, a statutory authority will owe a duty of care because the facts of the case fall
within one of these categories. The authority may, for example, be an employer or occupier of
premises or be responsible for the acts of its employees, such as driving on a public street.
10.122 If the relationship is not within one of the established duties, public
authorities as defendants give rise to difficulties as the action in negligence
will be based upon the authorities’ allegedly negligent exercise of power or a
failure to exercise power. Mason J in Sutherland Shire Council v Heyman
(1985) 157 CLR 424 at 457–8; 60 ALR 1 at 26 stated:
… statutory powers are not in general mere powers which the authority has an option to
exercise or not according to its unfettered choice. They are powers conferred for the purpose of
attaining the statutory objects, sometimes generating a public expectation having regard to the
purpose for which they are granted that they will be exercised. There is, accordingly, no reason
why a public authority should not be subject to a common law duty of care in appropriate
circumstances in relation to performing, or failing to perform, its functions, except in so far as
its policy-making and, perhaps, its discretionary decisions are concerned.
10.123 This category of novel duties has been flagged as difficult, as Kirby
J observed in Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147
at [189]:
This field of the law of negligence has been acknowledged to be among the most difficult, both
by judges and scholars. An optimistic view is that the difficulty arises because the law is
“developing”. A more realistic perspective may be that it is a category which is conceptually
unsettled. The fundamental problem is that a single unifying principle for liability in negligence,
easy to apply and predictable in outcome, has proved elusive. Differing theories hold the legal
stage for a time. But then their defects and inadequacies are exposed. None has won permanent
acceptance. The best that observers of this branch of the common law have been able to offer is
the cautionary advice to study the cases in the hope of deriving guidance from analogies.
However, in order to do this it is necessary to have some concept of the principle by which the
analogy is to be discovered. [footnotes omitted]
See also Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports ¶81749 at [19]:
A clear and universal test for determining whether a duty of care arises has not been laid down.
Each case depends on its own circumstances and the totality of the circumstances must be
weighed in the balance.
10.124 In this section, the discussion of whether a public authority owes a
common law duty of care will generally be limited to actions involving
personal, psychiatric and property
[page 236]
damage. For a discussion of whether a duty is owed where the harm is pure
economic loss (see 10.81ff) and for loss arising from misrepresentation, see
Chapter 19.
10.125
Some legislation exempts public authorities from liability in
negligence. For example, s 142(3) of the Nature Conservation Act 1992 (Qld)
provides that the State is not liable for any act or omission related to the
performance of a function under the Act in relation to a state protected area.
‘State protected area’ is defined to be a national park or a regional park: s
142(7).
Statutory Power
10.126 A duty of care is not owed by a public authority merely because it
has the powers that if exercised may prevent the harm suffered by the
plaintiff: Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147.
Neither will a duty to be owed solely because it is reasonably foreseeable that
if the power is not exercised by the public authority that harm may arise:
Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432. However, it is
a well-established principle that if an authority does exercise its powers, they
must be exercised with reasonable care: Caledonian Colleries Ltd v Speirs
(1957) 97 CLR 202 at 220; Stuart v Kirkland-Veenstra at [117]; Precision
Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 at
[75].
10.127 Before a duty of care can be established, it must be identified as to
which category the alleged negligence falls. A plaintiff may suffer loss because
a public authority:
exercised its power negligently (misfeasance);
had the power to act but did not exercise the power (nonfeasance); or
had no duty to act (pure nonfeasance).
In cases of misfeasance, that is, the public authority has exercised its power;
the law requires that reasonable care be taken. It is the latter two situations
that require analysis of the legislation to determine whether or not there was a
duty to act. See, for example, Pyrenees Shire Council v Day (1998) 192 CLR
330; 151 ALR 147 (failure to exercise discretion); Sutherland Shire Council v
Heyman (1985) 157 CLR 424; 60 ALR 1 (no duty to act).
10.128 Generally, the common law does not impose upon a defendant a
duty to act to prevent harm to another, unless it is the defendant’s act which
created the risk: Smith v Leurs (1945) 70 CLR 256; [1945] ALR 392; Pyrenees
Shire Council v Day (1998) 192 CLR 330; 151 ALR 147. However,
circumstances may arise where an authority may be required to act:
(i)
Where an authority, in the exercise of its functions, has created a danger.
(ii) Where the particular circumstances of an authority’s occupation of premises or its
ownership or control of a structure attracts to it a duty of care. In these cases the
statute facilitates the existence of a duty of care.
(iii) Where a public authority acts so that others rely on it to take care for their safety:
Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports ¶81-749 at [22],
referring to Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1.
10.129 Whether a public authority had a duty to act was considered in
Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432. The High
Court had to consider
[page 237]
whether police officers owed a duty of care to a member of the public who
committed suicide several hours after the police officers failed to exercise
their powers under s 10 of the Mental Health Act 1986 (Vic) to take him into
custody for his own wellbeing. The action was brought by the victim’s widow
who suffered a psychiatric injury as a result of her husband’s suicide. Two
police officers had come across the respondent’s husband in the early hours
of the morning as he sat in his car at a public car park writing a letter. There
was a corrugated tube taped to the exhaust pipe extending into the car. The
evidence was that the car’s engine was not running and was cold. When
questioned, Veenstra told the officers that he had thought about doing
something stupid but had changed his mind before they had arrived. The
officers offered to phone his wife, family or a doctor or to drive him home.
After further inquiries were made, the officers allowed Veenstra to leave. The
patrol duty sheet noted that Veenstra had been writing a letter and
contemplating suicide, that he had no psychiatric history but included the
word ‘depressed’ without elaboration. Later that day Veenstra committed
suicide sitting in his car at home.
Section 10(1) of the Mental Health Act 1986 (Vic) empowered a member of
the police force to apprehend a person who appeared to be mentally ill if the
member had reasonable grounds for believing that the person was likely to
attempt suicide. The High Court held that a person was not mentally ill
because they had contemplated suicide: at [97] per Gummow, Hayne and
Heydon JJ. Section 10(1) was interpreted by the court as not imposing an
obligation upon police officers to apprehend mentally ill persons. As the
conditions necessary for the provision did not arise, no duty of care could be
argued based on the failure to exercise the statutory power: at [149] per
Crennan and Kiefel JJ. See also Pyrenees Shire Council v Day (1998) 192 CLR
330 at 346; 151 ALR 147 at 156: ‘if a decision not to exercise a statutory power
is a rational decision, there can be no duty imposed by the common law to
exercise the power’.
10.130 See also Kudrin v City of Mandurah [2012] WASCA 65, where the
respondent had a general power to enable it to enforce compliance by owners
and builders with the approved plans for the construction or alteration of a
building. The appellants alleged that the respondent had failed to exercise this
power, contained in s 401 of the Local Government (Miscellaneous
Provisions) Act 1960 (WA), in relation to an encroaching retaining wall on
property adjacent to theirs. The court held (at [43]) there was no duty owed
by the respondent:
The statutory regime could not, in my opinion, be said to create or facilitate any relationship
between the respondent and the appellants which was arguably capable of giving rise to such a
duty of care. The power under s 401 … is not a power which is specifically addressed to the
protection of neighbouring or nearby landowners from encroachment, or from inconvenience
or distressed feelings, as a result of building work, but to the maintenance of appropriate
building standards. Nor is it a power which the respondent is under an obligation to exercise in
any case where a non-compliant building may lead to some encroachment or cause some
inconvenience to nearby landowners. The power is a discretionary one and any such obligation
would be inconsistent with the discretionary nature of the power. There was nothing in this case
which called for the power to be exercised to protect the appellants from the risks of which they
complain.
[page 238]
Relevant Factors
10.131 Whether a public authority owes a novel duty will depend upon
the reasonable foreseeability of the harm (Sydney Water Corporation v
Turano (2009) 260 ALR 20), a range of factors as identified in Sullivan v
Moody (2001) 207 CLR 562; 183 ALR 404 and in some jurisdictions,
provisions of the civil liability legislation. For example, in Queensland, s 35 of
the Civil Liability Act 2003 provides:
The following principles apply to a proceeding in deciding whether a public or other authority
has a duty or has breached a duty —
(a) the functions required to be exercised by the authority are limited by the financial
and other resources that are reasonably available to the authority for the purpose of
exercising the functions;
(b) the general allocation of financial or other resources by the authority is not open to
challenge;
(c) the functions required to be exercised by the authority are to be decided by
reference to the broad range of its activities (and not merely by reference to the
matter to which the proceeding relates);
(d) the authority may rely on evidence of its compliance with its general procedures
and any applicable standards for the exercise of its functions as evidence of the
proper exercise of its functions in the matter to which the proceeding relates.
See also Civil Law (Wrongs) Act 2002 (ACT) s 110; Civil Liability Act 2002
(NSW) s 42; Civil Liability Act 2002 (Tas) s 38; Wrongs Act 1958 (Vic) s 83;
Civil Liability Act 2002 (WA) s 5W. There are no equivalents in South
Australia and the Northern Territory.
10.132 Significantly, the respective sections refer to both the existence and
breach of the duty of care, reflecting perhaps the difficulties the courts
sometimes face in drawing the dividing line between the nature and scope of
the duty of care and the breach of that duty: Leichhardt Municipal Council v
Montgomery (2007) 230 CLR 22; 233 ALR 200 at [8] per Gleeson CJ.
10.133
In reading this legislation, it should be noted that in some
jurisdictions the use of the term ‘function’ is defined to include what is
usually referred to as a statutory power at common law: see, for example, s 34
of the Civil Liability Act 2003 (Qld). As well as the obvious exceptions of
South Australia and the Northern Territory, only the Western Australian
legislation does not contain this alternate meaning of ‘function’.
10.134
It is also important to note, however, that these statutory
provisions do not represent a codification of the law relating to the liability of
authorities in the tort of negligence. Instead, the statutory provisions will, as
relevant, modify the application of the common law principles, rules and
policies. See Roads and Traffic Authority of New South Wales v Refrigerated
Roadways Pty Ltd (2009) 77 NSWLR 360 at [388].
Policy and operational decisions
10.135 Strict budgetary restrictions are placed upon statutory authorities,
due to the fact that they are directly dependent upon the financial (and
indirectly, the electoral) support
[page 239]
of the Australian taxpayer and ratepayer. For this reason, statutory authorities
often have a discretion as to the ways in which they can carry, or not carry
out, their statutory functions and powers. It is for this reason also that the
High Court has stressed, on several occasions, that statutory authorities are
not insurers for members of the public, so that persons injured by the
negligent act or omission of a statutory authority may, nevertheless, be owed
no duty of care: Brodie v Singleton Shire Council; Ghantous v Hawkesbury
Shire Council (2001) 206 CLR 512; 180 ALR 145; Roads and Traffic Authority
of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761; Leichhardt
Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200.
10.136 Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR
424 at 468–9; 60 ALR 1 at 34–5, explained the distinction between policy and
operational decisions:
The distinction between policy and operational factors is not easy to formulate, but the dividing
line between them will be observed if we recognise that a statutory authority is under no duty of
care in relation to decisions which involve or are dictated by financial, economic, social or
political factors or constraints. Thus, budgetary allocations and the constraints which they entail
in terms of allocation of resources cannot be made the subject of a duty of care. But it may be
otherwise when the courts are called upon to apply a standard of care to action or inaction that
is merely the product of administrative direction, expert or professional opinion, technical
standards or general standards of reasonableness.
10.137 In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540;
196 ALR 337, the plaintiffs ate contaminated oysters and brought a
negligence action against the Great Lakes Council, which had control of the
area where the oyster beds were grown, and the state of New South Wales,
which had decided to allow the oyster industry to be self-regulating. The High
Court held that neither statutory authority owed a duty of care to the
consumers of the contaminated oysters.11 In regard to the Council, its control
and legislative powers over the area where the contamination most likely
originated were insufficient to support a private duty of care being owed by
the authority to the plaintiffs. The state of New South Wales was also held to
have owed no duty of care to the consumer plaintiffs. This finding was based
upon the fact that, ultimately, it is a matter of governmental choice as to how
a particular industry should be regulated. As Gummow and Hayne JJ
commented (at [175]–[176]):
In particular, the state decided not to adopt the approach of some other Australian and foreign
jurisdictions which require regular sanitary surveys of oyster-growing regions pursuant to a
classification structure based on water pollution levels. This decision was reached after much
consideration and was based in part on budgetary concerns … A decision of that nature involves
a fundamental governmental choice as to the nature and extent of regulation of a particular
industry.
The decision as to the nature of the regulation of the oyster industry was a
policy decision and, therefore, not reviewable by the courts. In contrast, in
Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147, the failure of
the authority to ensure that the fire defect
[page 240]
had been repaired was an operational decision and could, therefore, be
reviewed by the courts to find that a duty of care was owed and breached.
10.138 The civil liability legislation provides that ‘the general allocation of
financial or other resources by the authority is not open to challenge’: Civil
Law (Wrongs) Act 2002 (ACT) s 110(b); Civil Liability Act 2002 (NSW) s
42(b); Civil Liability Act 2003 (Qld) s 35(b); Civil Liability Act 2002 (Tas) s
38(b); Civil Liability Act 2002 (WA) s 5W(b). There is no equivalent
paragraph in the Victorian legislation.
In Roads and Traffic Authority of New South Wales v Refrigerated
Roadways Pty Ltd (2009) 77 NSWLR 360 at [397], a case considering the
provision from the aspect of breach, it was stated:
There is an important difference in prepositions between s 42(a) and s 42(b). Section 42(a) is
concerned with the resources reasonably available to the authority, while s 42(b) is concerned
with the allocation of those resources by the authority. In other words, s 42(b) starts from the
position that certain resources are reasonably available to the authority, and considers the
allocation that is made by the authority of those resources.
See also New South Wales v Ball (2007) 69 NSWLR 463 at [13]–[18], where
the plaintiff’s challenge to the allocation of resources was struck from the
statement of claim. The plaintiff was a police officer and claimed that as a
result of the lack of funding and staff he was required to work by himself for
longer hours on child sexual abuse cases causing him to suffer psychiatric
injury.
Control and vulnerability
10.139 The most important of the factors usually relevant to finding
whether a duty of care is owed by a statutory authority, is its control over the
source of the risk of harm and the vulnerability of those who depend upon
the authority to manage (or to warn of) their exposure to that risk. As
Gummow and Hayne JJ commented in Graham Barclay Oysters Pty Ltd v
Ryan (2002) 211 CLR 540; 196 ALR 337 at [149]–[150]:
An evaluation of whether a relationship between a statutory authority and a class of persons
imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient
features of the relationship must be considered. The focus of analysis is the relevant legislation
and the positions occupied by the parties on the facts as found at trial. It ordinarily will be
necessary to consider the degree and nature of control exercised by the authority over the risk of
harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by
the authority of its powers; and the consistency or otherwise of the asserted duty of care with the
terms, scope and purpose of the relevant statute. In particular categories of cases, some features
will be of increased significance. For example, in cases of negligent misstatement, such as Tepko
Pty Ltd v Water Board [(2001) 206 CLR 1; 178 ALR 634], reasonable reliance by the plaintiff on
the defendant authority ordinarily will be a significant factor in ascertaining any relevant duty of
care.
The factor of control is of fundamental importance in discerning a common law duty of care on
the part of a public authority. It assumes particular significance in this appeal. This is because a
form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde [(2000) 201
CLR 552; 173 ALR 665], is remote, in a legal and practical sense, does not suffice to found a duty
of care. [footnotes omitted]
10.140
The decision of the High Court in Crimmins v Stevedoring Industry
Finance Committee (1999) 200 CLR 1; 167 ALR 1 (Crimmins) illustrates the
application of the common law factors of control and vulnerability to cases
deciding whether a private, as
[page 241]
well as a public, duty was owed in the circumstances in which the plaintiff
suffered personal injury to their person or property.
In Crimmins, the plaintiff contracted mesothelioma from exposure to
asbestos while working for various stevedoring companies, loading and
unloading ships. The High Court held that the defendant owed the plaintiff a
duty of care on the basis that its predecessor authority had had overall control
of the activities on the wharves where the plaintiff worked. The fact that the
defendant’s predecessor was not the employer of the plaintiff was held to be
irrelevant in the circumstances of the case. The critical factor was the
plaintiff’s vulnerability when compared with the defendant’s knowledge of
the risk and its powers to control or minimise that risk.
10.141 In Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432 at
[114], the High Court held that control was of ‘critical significance’. The court
stated (at [116]):
No doubt it can also be said that they were in a position to control or minimise the occurrence
of the observed risk (in this case because they had the power given by s 10 of the Mental Health
Act). But considerations of the same kind will almost always be present when a passer-by
observes a person in danger. The passer-by can see there is danger; the passer-by can almost
always do something that would reduce the risk of harm. Yet there is no general duty to rescue.
The case was different from Crimmins, as the police officers were not in
control of the risk, nor did they ‘put Mr Veenstra in harm’s way’: at [116].
See also Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147
(the authority had control because of its actual knowledge of the risk and the
fact it had the powers which if exercised would have prevented the risk
materialising); and Sydney Water Corporation v Turano (2009) 239 CLR 51;
260 ALR 20 (water authority had no control over the removal of the tree
which caused the death of the respondent’s husband).
10.142 Vulnerability of the plaintiff is relevant if there was nothing they
could do to protect themselves against the harm. In Precision Products (NSW)
Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102, the appellant
argued that it was vulnerable as it had no ‘real opportunity’ to protect itself
when served with a notice under s 91 of the Protection of the Environment
Operations Act 1997 (NSW) requiring clean-up of pollution incidents within
a specified time. The Court of Appeal agreed with the trial judge’s assessment
that the appellant was not vulnerable merely because the exercise of the
power would cause economic detriment to the appellant. The appellant could
have protected itself by taking legal advice upon being served with the notice,
or challenged the notice as it appeared to be invalid on its face: at [110]. See
also Dansar Pty Ltd v Bryon Shire Council (2014) 89 NSWLR 1 at [180].
Coherency
10.143
A statutory authority’s public responsibilities, functions and
powers must be reconciled with the private legal rights recognised by the
existence, nature and scope of the private common law duty of care in a
negligence action. If a conflict or potential incoherency will result from the
recognition of a duty of care, then no duty of care will be recognised by the
common law courts. In Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404
(see 10.28), no duty of care was owed to the plaintiff father because it could
have been in conflict with the defendant’s statutory responsibilities under the
Act for the protection of children.
[page 242]
10.144
In Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432,
the High Court held that to recognise a duty of care in respect of the police
officers failing to take Veenstra into protective custody would be to recognise
a duty to rescue, which is not part of Australian law. Gummow, Hayne and
Heydon JJ stated (at [99]):
The duty which is postulated in the present case is expressed in terms which, on their face,
would require every person who knows (perhaps every person who ought to know) that another
is threatening self-harm to take reasonable steps to prevent that harm. Presumably, performance
of a duty described in those terms would require the person, in an appropriate case, to exercise
the power given by s 463B of the Victorian Crimes Act (or equivalent provisions) and use
reasonable force to prevent the commission of suicide or “of any act which he believes on
reasonable grounds would, if committed, amount to suicide”. Presumably it is a duty which
would require the person to call for police so that they could exercise powers under s 10. And all
this regardless of whether the person threatening self-harm is in fact mentally ill, or appears to
be so. So expressed the duty would be a particular species of a general duty to rescue. The
common law of Australia has not recognised, and should not now recognise, such a general duty
of care.
Further, the duty would infringe upon an individual’s autonomy, ‘an
underlying value of the common law’: at [87].
10.145 To impose a duty to avoid the economic loss suffered by the
appellant in Precision Products (NSW) Pty Ltd v Hawkesbury City Council
(2008) 74 NSWLR 102 was considered to be in conflict with the purpose of
the Protection of the Environment Operations Act 1997 (NSW) as well as a
lack of coherence with administrative law, as the claim amounted in
substance to an ‘assertion of a compensatory claim for administrative error’:
at [118]. Allsop P held (at [114]):
The imposition of a duty of care to have regard to the economic interests of a person in the
position of the appellant in the way proposed would be to subject the Council, whose
responsibility is to exercise the power in the public interest, to a duty to have regard to the
conflicting interests and claims of the party whose conduct (on this hypothesis) may have
endangered the environment and the public interest. The setting up of this tension between the
statute and the common law should not be permitted: Sullivan v Moody [(2001) 207 CLR 562]
(at 582).
See also New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [26].
Road Authorities
10.146 Historically a public authority acting as a road authority incurred
no liability in negligence for loss arising from its nonfeasance: Buckle v
Bayswater Road Board (1936) 57 CLR 259; Gorringe v Transport Commission
(Tas) (1950) 80 CLR 357. This traditional immunity for nonfeasance provided
that no liability attached to the road authority simply because it failed to
inspect, maintain or repair defects in a road or highway.
10.147 The High Court in Brodie v Singleton Shire Council; Ghantous v
Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145 (Brodie) by a 4:3
majority held that the ‘highway immunity for nonfeasance rule’ should be
replaced by the same general principles of negligence which govern all other
statutory authorities.
10.148 The decision in Brodie attracted much criticism and, in particular,
concerns that the abolition of the highway rule would lead to a flood of claims
against roads authorities
[page 243]
and councils. When these concerns were to some extent realised, even though
few were successful, several jurisdictions partially reinstated the highway
nonfeasance rule in the civil liability legislation. For example, s 37 of the Civil
Liability Act 2003 (Qld) provides:
Restriction on liability of public or other authorities with functions of road authorities
(1) A public or other authority is not liable in any legal proceeding for any failure by the
authority in relation to any function it has as a road authority —
(a) to repair a road or to keep a road in repair; or
(b) to inspect a road for the purpose of deciding the need to repair the road or to
keep the road in repair.
(2) Subsection (1) does not apply if at the time of the alleged failure the authority had
actual knowledge of the particular risk the materialisation of which resulted in the
harm.
(3) … [meaning of the term roads authority]
See also Civil Law (Wrongs) Act 2002 (ACT) s 113; Civil Liability Act 2002
(NSW) s 45; Civil Liability Act 1936 (SA) s 42; Civil Liability Act 2002 (Tas) s
42; Road Management Act 2004 (Vic) s 102; Civil Liability Act 2002 (WA) s
52.
10.149 Therefore, under the civil liability legislation, a road authority will
not be liable if the loss arose from a failure on its part to inspect or repair a
road, unless it has ‘actual knowledge of the particular risk the materialisation
of which has resulted in the harm’. If the road authority does have actual
knowledge, no immunity applies and instead an action in negligence as
determined by the usual principles in respect of public authorities will apply.
10.150 The meaning of the term ‘actual knowledge’ has been considered
by courts in New South Wales. In North Sydney Council v Roman (2007) 69
NSWLR 240, the respondent was injured when she fell due to a large hole in
the road. At trial the respondent argued that the road authority could not
claim immunity under s 45 of the Civil Liability Act 2002 (NSW) as it had
actual knowledge of the hole. It was claimed that street sweepers worked
regularly on the road and therefore it could be inferred that the appellant had
actual knowledge as a part of their job was to report hazards. In a 2:1 majority
decision, Basten JA, with whom Bryson JA agreed, held that the street
cleaners’ knowledge of the pothole was not sufficient to constitute the
necessary ‘actual knowledge’ necessary to negate the immunity. Basten JA
held (at [156]–[157]):
… actual knowledge must be found in the mind of an officer within the council having
delegated (or statutory) authority to carry out the necessary repairs.
This conclusion is consistent with the language of s 45(1). The section confers an immunity on a
roads authority where harm arises “from a failure of the authority to carry out road work”. The
exception only arises where “at the time of the alleged failure” the authority had actual
knowledge of the particular risk. A purposive construction would require that the relevant
knowledge exist in an officer responsible for exercising the power of the authority to mitigate
the harm. The existence of the power is only coupled with a duty to act in circumstances where
such knowledge exists. Accordingly, the knowledge must exist at or above the level of the officer
responsible for undertaking necessary repairs. The knowledge of others without such
responsibility will not, relevantly for the purposes of the provision, constitute “actual
knowledge” of the roads authority
[page 244]
itself; at best it could give rise to “constructive” or imputed knowledge. The use of the term
“actual” precludes reliance on constructive or imputed knowledge. It follows that, even if a street
sweeper having a duty to note and report defects, was aware of the pothole, the immunity is
engaged absent proof on the balance of probabilities that the officer in charge of maintenance
works received that information.
See also Roads and Traffic Authority (NSW) v Rolfe [2010] NSWSC 714 at
[53] (engineer and district maintenance manager was ‘not a street sweeper’
but ‘the relevant decision maker’); Blacktown City Council v Hocking (2008)
Aust Torts Reports ¶81-956; Angel v Hawkesbury City Council (2008) Aust
Torts Reports ¶81-955.
See Nightingale v Blacktown City Council [2015] NSWCA 423 where the
majority of the New South Wales Court of Appeal held that as the decision of
North Sydney Council v Roman (2007) 69 NSWLR 240 was ‘not plainly
wrong’, the court would not depart from the decision: at [62], referring to
Gett v Tabet (2009) 254 ALR 504. However, Simpson JA held that the
decision was ‘plainly wrong’ as the omission by the legislature to specify who
was to have the actual knowledge must have been deliberate: at [101]–[104].
It is predicted that at some point the interpretation of this term will be
considered by the High Court.
10.151 In Collins v Clarence Valley Council [2015] NSWCA 263, the
appellant was injured when her bicycle got stuck between the wooden planks
of a bridge that was in the care, control and management of the respondent.
The court held that that as the respondent did not have ‘actual knowledge’; of
the ‘particular risk’, that is, the particular hole which the appellant’s bicycle
struck, it did not have actual knowledge. To have knowledge of the general
condition of the bridge was not sufficient to negate the immunity. See also
Botany Bay City Council v Latham (2013) 197 LGERA 211.
Further Reading
M Aronson, ‘Government Liability in Negligence’ (2008) 32 MULR 44.
R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis
Butterworths, Sydney, 2013, Ch 7.
D Butler, ‘An Assessment of Competing Policy Considerations in
Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 TLJ
13.
B Codd, R D Hinchy and V Nase, ‘An Alternative View of Woolcock
Street Investments v CDG Pty Ltd’ (2004) 12 TLJ 194.
M Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’
(2004) 24 Aust Bar Rev 219.
—, ‘Ten Years in the High Court — Continuity and Change’ (2005) 27
Aust Bar Rev 4.
H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and
Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 2.
J Stapleton, ‘Duty of Care and Economic Loss: A Wider Agenda’
(1991) 107 LQR 249.
—, ‘The Golden Thread at the Heart of Tort Law: Protection of the
Vulnerable’ (2003) 24 Aust Bar Rev 1.
1.
And, in fact, several state legislatures subsequently modified the common law liability of road
authorities in the civil liability legislation enacted in response to the insurance crisis and the Ipp
Report; Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp
Report), October 2002, available at
<http://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/Review-of-the-Law-ofNegligence>.
2.
For a more detailed consideration of the incremental approach, see K M Stanton, ‘Incremental
Approaches to the Duty of Care’ in N J Mullany (ed), Torts in the Nineties, LBC Information
Services, Sydney, 1997, pp 34–55.
3.
M Kirby, ‘Judicial Activism? A Riposte to the Counter-reformation’ (2004) 24 Aust Bar Rev 219 at
232.
4.
C Radcliffe, The Law and its Compass, Faber and Faber, London, 1960.
5.
J Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24
Aust Bar Rev 1 at 1–3.
6.
For an examination of the various policy considerations in relation to pure psychiatric claims, see
D Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury
Resulting from Negligence’ (2002) 10 TLJ 13.
7.
See note 6 above, at 16–17.
8.
The common law already recognised liability for fraudulent misrepresentations in the tort of
deceit: see Chapter 19.
9.
But see B Codd, R D Hinchy and V Nase, ‘An Alternative View of Woolcock Street Investments v
CDG Pty Ltd’ (2004) 12 TLJ 194, where the authors argue that commercial realities meant the
plaintiff was not necessarily able to protect itself.
10.
Under the Westminster system of government, which Australia inherited from England, the
executive branch of government is distinguished from the two other branches of government: the
judicial and parliamentary branches.
11.
The producers and distributors of the oysters were also parties to the action, on the basic
principles of Donoghue v Stevenson, but were found not to be in breach of the duty.
[page 245]
Chapter 11
Standard of Care and Breach
1
Introduction
11.1 Gummow J in Roads and Traffic Authority of New South Wales v
Dederer (2007) 234 CLR 330; 238 ALR 761 at [18] explained the settled legal
principles in respect of establishing a breach of a duty of care:
… the proper resolution of an action in negligence depends on the existence and scope of the
relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to
exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct.
Thirdly, the assessment of breach depends on the correct identification of the relevant risk of
injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an
assessment of breach must be made in the manner described by Mason J in Wyong Shire Council
v Shirt (1980) 146 CLR 40; 29 ALR 217.
11.2 The negligence action is concerned as to whether the defendant failed
to achieve the standard of care imposed by the law. Alderson B stated in Blyth
v Birmingham Waterworks Co (1856) 11 Ex 781 at 782:
Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.
Therefore ‘while duties of care may vary in content or scope, they are all to
be discharged by the exercise of reasonable care’: Roads and Traffic Authority
of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [49];
Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711.
11.3 In determining whether the duty of care has been breached, two
issues need to be addressed:
1.
What is the relevant standard of care?
2.
Has that standard been breached?
In practice, most of the evidentiary contests in litigation centre on evidence
in respect of the element of breach, rather than the existence of a duty or the
damage.
[page 246]
2
Standard of Care
Objective Test
11.4 The standard of care required in a particular case is a question of law
for the court to determine: Glasgow Corporation v Muir [1943] AC 448 at 454;
Bolton v Stone [1951] AC 850 at 860; Paris v Stepney Borough Council [1951]
AC 367 at 384.
11.5
An objective standard is applied and, in order to achieve this,
reference is made to the reasonable person. Lord Radcliffe, in Davis
Contractors v Fareham Urban District Council [1956] AC 696 at 722, stated
‘the reasonable man’ was ‘the anthropomorphic conception of justice’. The
use of this fictional figure is designed to mask the value judgments of judges
in determining, as a matter of policy, what reasonable conduct ought to be.
11.6 The courts stress that reasonable care must be measured according to
the circumstances of each case, including the relationship between the
plaintiff and defendant: Smith v Jenkins (1970) 119 CLR 397 at 400. In Imbree
v McNeilly (2008) 236 CLR 510; 248 ALR 647 at [69], it was stated:
The common law recognises many circumstances in which the standard of care expected of a
person takes account of some matter that warrants identifying a class of persons or activities as
required to exercise a standard of care different from, or more particular than, that of some
wholly general and “objective community ideal”. Chief among those circumstances is the
profession of particular skill. A higher standard of care is applied in those cases. That standard
may be described by reference to those who pursue a certain kind of occupation, like that of
medical practitioner, or it may be stated, as a higher level of skill, by reference to a more specific
class of occupation such as that of the specialist medical practitioner. At the other end of the
spectrum, the standard of care expected of children is attenuated. [footnotes omitted]
11.7 Therefore, although it is an objective test, certain characteristics or
circumstances must be taken into account in order to determine the relevant
standard of care. As Davies and Malkin note, ‘it makes no sense to ask what a
reasonable person would or would not do while performing brain surgery
unless one assumes that the reasonable person is, like the actual defendant, a
brain surgeon’.1
11.8 The standard of care has been restated in some of the civil liability
legislation as being that required of a reasonable person in the defendant’s
position who was in possession of all the information that the defendant
either had, or ought reasonably to have had, at the time of the incident out of
which the harm arose: see Civil Law (Wrongs) Act 2002 (ACT) s 42; Civil
Liability Act 1936 (SA) s 31.
Children
11.9 Young children are expected to exercise only the degree of care one
would expect of a child of the same age and experience: McHale v Watson
(1966) 115 CLR 199.
[page 247]
McHale v Watson involved a 12-year-old defendant who threw a steel dart
at a wooden post while playing. The dart struck the plaintiff, a nine-year-old,
in the eye. The plaintiff sued the defendant, alleging that the defendant had
failed to take reasonable care in throwing the dart. The High Court of
Australia held, by a majority of 2:1, that the defendant had not been negligent.
Although an adult might have been negligent if the dart had been thrown in
the same way, the defendant, a 12-year-old, was not. Kitto J stated (at 213):
[A] defendant does not escape liability by proving that he is abnormal in some respect which
reduces his capacity for foresight or prudence. The principle is of course applicable to a child.
The standard of care being objective, it is no answer for him, any more than it is for an adult, to
say that the harm he caused was due to his being abnormally slow-witted, quick-tempered,
absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a
limitation upon the capacity for foresight or prudence, not as being personal to himself, but as
being characteristic of humanity at his stage of development and in that sense normal.
11.10 If the child engages in adult activities the child may be judged by the
standard of a reasonable adult: Tucker v Tucker [1956] SASR 297 (driving a
motor vehicle). See Zanner v Zanner (2010) 79 NSWLR 702 where it was held
that an 11-year-old driving his mother’s car under her supervision into the
family carport had breached the standard of care. Tobias JA stated (at [60]):
The act of negligence in the present case was the failure of the first appellant to keep his foot on
the brake and to prevent it slipping onto the accelerator. That was not an activity whose
importance would be beyond the understanding of an 11 year old. It is a mistake that could
happen to an adult as well as to a child of the first appellant’s age. There is no reason, in my
view, why the first appellant was not bound to exercise reasonable care not to permit his foot to
so slip. There is nothing to suggest that he did not understand the purpose of the brake or the
effect of depressing the accelerator. It would not be unreasonable to infer that an 11 year old,
who had successfully manoeuvred his father’s vehicle into and out of the carport on five or six
previous occasions, understood the purpose of the brake and how it fitted into the function he
was undertaking and that it was important that he not take his foot off the brake as the car
would then move forward (or back if he was in reverse) more rapidly.
Physical or mental impairment
11.11 Since the standard is that of the reasonable person, one general
implication is that any disability in the defendant must be disregarded; for
example, individual intelligence should be ignored: Baxter v Woolcombers Ltd
(1963) 107 Sol Jo 553.
11.12 Nevertheless, the courts are prepared to look to the circumstances of
every case so that if the defendant does suffer from a physical disability (for
example, epilepsy), the test of reasonable care may depend on whether the
defendant, in the circumstances, embarked upon a task demanding alertness
having regard to what he or she knew or ought to have known about the
disability. In Roberts v Ramsbottom [1980] 1 All ER 7, the defendant caused a
few motor vehicle accidents in one journey but claimed not to be liable in
negligence as 20 minutes prior he had suffered a stroke and, therefore, was
not able to control his car properly or to appreciate that he was not capable of
driving. The court found the defendant to be liable as he had been aware of
his disabling symptoms after the first incident but
[page 248]
had continued to drive. Although the defendant was not able to appreciate
the proper significance of the symptoms, impaired judgment was no defence.
11.13 Mental disability should also be ignored as the reasonable person is
never insane: Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56.
In Carrier v Bonham [2002] 1 Qd R 474 at [8], McMurdo P of the Queensland
Court of Appeal stated:
Whilst a child’s actions in a negligence claim can be judged by the objective standard to be
expected of an ordinary reasonable child of comparable age, the action of an adult lacking
capacity because of mental illness in a negligence claim cannot be similarly judged by any
objective standard of an ordinary reasonable person suffering from that mental illness; if the
mental illness has deprived the person of capacity then the person has also been deprived of
rationality and reasonableness. The standard of care must be the objective standard expected of
the ordinary person.
Skill and knowledge
11.14
A person having a special skill or knowledge above that of a
reasonable person will be expected to attain the standard of a reasonable
person with that skill or knowledge: Chin Keow v Government of Malaysia
[1967] 1 WLR 813. In Lanphier v Phipos (1838) 8 C & P 475 at 479; 173 ER
581 at 583, it was explained:
Every person who enters into a learned profession undertakes to bring to the exercise of it a
reasonable degree of skill and care. He does not undertake, if he is an attorney, that at all events
you shall gain your case, nor does a surgeon undertake that he will perform a cure; nor does he
undertake to use the highest possible degree of skill. There may be persons who have higher
education and greater advantages than he has, but he undertakes to bring a fair, reasonable and
competent degree of skill.
See also Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 117, where it was
stated:
[Barristers and solicitors] are bound to have and to exercise the degree of skill and care that is to
be expected of persons professing and practising in their area of expertise … In giving advice, a
lawyer does not warrant or guarantee the soundness of his or her opinion but only that the
requisite degree of skill and care has been used in arriving at it.
11.15 Specialising within a field will also be taken into account when
determining the standard of care. For example, the standard of care expected
of a medical practitioner is that of a normally skilful and careful medical
practitioner: Mahon v Osborne [1939] 2 KB 14. A specialist, though, will owe
a standard of the skill of persons practising in that area of speciality: Rogers v
Whitaker (1992) 175 CLR 479 at 483; 109 ALR 625 at 631. The same applies
to a legal practitioner. In Yates Property Corporation Pty Ltd (in liq) v Boland
(1998) 85 FCR 84 at 105; 157 ALR 30 at 50–1, it was held:
When a client retains a firm that is or professes to be specially experienced in a discrete branch
of the law that client is entitled to expect that the standard of care with which his retainer will be
performed is consistent with the expertise that the firm has or professes to have. …
Thus, the content of the standard of care that is to be owed by a solicitor to his client under the
general law should not be confined to the standard of care and skill that is possessed by a person
of ordinary competence exercising the same calling. The standard should reflect the fact that
[page 249]
within any one calling practitioners have or profess to have varying degrees of expertise. The
standard of care and skill required of such a person must bear some relationship to that
expertise. In the case of a solicitor who is an expert in a particular branch of the law the
requirement should be that the solicitor must carry out his retainer as would a reasonably
competent solicitor who is an expert in that particular area of the law.
See also Goddard Elliott (a firm) v Fritsch [2012] VSC 87 at [412]–[414].
In Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA
35 at [133], the standard of care of an engineer in respect of the design and
manufacture of a machine was described as:
… what a reasonably competent engineer in the position of the designer and manufacturer
would have done, in the circumstances, to produce a machine that was able reliably to perform
its ordinary functions. This involves identifying, with some precision, the design and the
manufacturing process that the reasonably competent engineer would have adopted.
Lack of knowledge or skill
11.16 As the test of the standard of care is objective, lack of knowledge
cannot be pleaded if a reasonable person in the circumstances would possess
that knowledge. Likewise, if a reasonable person would not possess the
knowledge or skill, it cannot be argued that the knowledge or skill sets the
standard.
In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139, the
plaintiffs suffered pure economic loss after planting canola seeds, sold by the
defendant, which contained weeds. The Western Australian authority
required the fields of canola to be cleared and the seeds from the crops to be
destroyed for a period of five years. The High Court approved the approach
of Finkelstein J of the Federal Court ((2000) 105 FCR 467 at 506), stating (at
[163]):
… the usual knowledge of an agricultural scientist cannot set the standard of care to be observed
by a seed merchant. Further, common knowledge of the kind to which the primary judge
referred is of no significance unless there is a basis for concluding that the reasonable person in
Dovuro’s position not only ought reasonably to have known, or to have found out, whether any
of the three plants already grew in the area concerned, but also knew, or ought reasonably to
have known that, if the plants were exotic, they would or may later be declared to be prohibited
plants.
11.17
Reasonable care must be related to the circumstances of the time
and place. For example, the standard of care of a doctor in a particular case
must be related to medical knowledge at the time of the alleged breach: Roe v
Minister of Health [1954] 2 QB 66. The trial often takes place several years
after the damage is sustained, when further medical advances have taken
place that were not in existence as medical practice at the time of the act or
omission. The defendant is not to be credited with such hindsight. In H v
Royal Alexandra Hospital for Children (1990) Aust Torts Reports ¶81-000, the
failure to warn of the risk of AIDS being transmitted through antihaemophilic therapy was not negligent at the time.
11.18
The civil liability legislation has affirmed this in provisions in
relation to the standard of care for professionals. Section 22(1) of the Civil
Liability Act 2003 (Qld) states
[page 250]
that the service provided is judged as at the time the service was provided. See
also Civil Liability Act 2002 (NSW) s 5O(1); Civil Liability Act 1936 (SA) s
41(1); Civil Liability Act 2002 (Tas) s 22(1); Wrongs Act 1958 (Vic) s 59(1);
Civil Liability Act 2002 (WA) s 5PB(1). The legislation in the Australian
Capital Territory and South Australia also provides a generic statement that
the standard of care is that of a reasonable person as at the time of the
incident: Civil Law (Wrongs) Act 2002 (ACT) s 42; Civil Liability Act 1936
(SA) s 31(1).
11.19
Persons carrying out tasks that require certain skills, without
claiming to possess those skills, cannot owe the same standard of care as a
reasonable person possessing those skills. Laypersons carrying out tasks that
trained persons ordinarily would perform will not owe the higher standard of
the trained person. In Blackmore v Beames (SASC, King CJ, Cox and
Matheson JJ, No 92–709, 8 February 1993, unreported), the defendants
assisted the plaintiff in work on the transom of the plaintiff’s motor launch.
The defendants did not possess any particular skills in relation to transoms.
King CJ stated (at 3):
The relationship in this case is of particular importance. There was no contractual relationship
between the parties nor any business element in the relationship. The defendants did not hold
themselves out as tradesmen and there is no question, therefore, of applying the standard of care
and skill to be expected of a person carrying on a particular trade or calling. The relationship
was simply that of persons assisting a friend in a task which he wished to have performed. The
first named plaintiff was aware that the defendants did not hold themselves out as possessing
any relevant skills. In those circumstances I consider that the plaintiffs could expect of the
defendants the exercise of only such degree of skill and knowledge in relation to the task as they
actually possessed, together with the degree of care which a reasonable person would exercise in
such circumstances.
On the facts of that case, there had been no breach of the standard:
I do not think that any want of reasonable care has been proved. There was an error of judgment
in not ensuring that water could not enter the boat but the error resulted not from want of care
but from a mistaken belief as to the thickness of the transom. In the circumstances I consider
that the error of judgment did not amount to a breach of the defendants’ duty to the plaintiffs: at
5.
11.20 However, if a defendant carries out a task that a reasonable person
would believe requires an expert to perform, they are holding themselves out
to possess those skills and will be judged according to the standard of care
required of such an expert: Caminer v Northern & London Investment Trust
Ltd [1951] AC 88 at 108, 111–12, cited with approval in Papantonakis v
Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1. In
Papantonakis v Australian Telecommunications Commission, Deane J stated
(at CLR 36; ALR 22):
A reasonably prudent occupier does not rely merely on his own judgment and skill in a situation
where technical expertise which he does not possess is required. He should obtain and follow
proper technical advice or employ a qualified person to perform repairs requiring expert skill
(see, eg Haseldine v C A Daw & Son Ltd [1941] 2 KB 343 at 356; Wells v Cooper [1958] 2 QB 265
at 271). If he meddles himself, he cannot complain if the standard of care and foreseeability of
injury which the law exacts of him are not those of the hypothetical person on a hypothetical
Bondi tram or Clapham omnibus but those of the ‘ordinary skilled [person] exercising and
[page 251]
professing to have that special skill’ (per McNair J, Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582 at 586).
This position has been restated in legislation in South Australia and
Victoria, where a defendant holding themselves out as possessing a particular
skill will be judged according to the level of skill that could be reasonably
expected of a person possessing that skill: Civil Liability Act 1936 (SA) s 40;
Wrongs Act 1958 (Vic) s 58.
Inexperience
11.21 No allowance is made for inexperience where there is the exercise of
some special skill involved. An inexperienced medical practitioner is expected
to reach the usual standard of a normally skilful and careful practitioner:
Jones v Manchester Corporation [1952] 2 QB 852 at 868; Hancock v
Queensland [2002] QSC 027 at [10].
11.22 In 1986, the High Court created an exception to this principle in
Cook v Cook (1986) 162 CLR 376; 68 ALR 353, holding that inexperience
could lower the standard of care if a special relationship existed between the
plaintiff and defendant. A special relationship could be established if the
plaintiff knew of the defendant’s inexperience and the breach of duty arose
from the defendant carrying out the activity in which they were
inexperienced. In such circumstances, the standard of care was to reflect that
inexperience.
11.23 However, the High Court revised this position in Imbree v McNeilly
(2008) 236 CLR 510; 248 ALR 647. The appellant was injured in a car
accident, the respondent driver being 16 years old and unlicensed. The
respondent, driving the high-set vehicle at approximately 80 km per hour,
swerved around debris on the gravel road but steered too far left, causing the
wheels to go onto the shoulder of the road which consisted of loose sand,
gravel and dust. Instead of steering back onto the road, the respondent
accelerated and turned too far right, causing the vehicle to cross the road. The
respondent then attempted to right the vehicle but oversteered once again,
resulting in the vehicle rolling onto its roof.
Before the New South Wales Court of Appeal, the respondent argued that
the acceleration and the oversteering was a product of inexperience and was
not a breach of the relevant standard of care. Applying the decision of Cook v
Cook, the majority (Beazley and Basten JJA) held that the actions of the
respondent had breached the standard of care expected from an
inexperienced driver: McNeilly v Imbree (2007) 47 MVR 536; Aust Torts
Reports ¶81-895.
On appeal to the High Court, the appellant argued that the decision of
Cook v Cook should be overruled and that it should be held that the
respondent owed him ‘the same objective standard of care as a licensed
driver’: at [37]. A majority of the High Court (6:1) agreed with that
proposition and held that learner drivers owe the same standard of reasonable
care to all road users, including driving instructors, supervisors and
passengers. Gummow, Hayne and Kiefel JJ stated (at [57]–[58]):
Describing the relevant comparator as the reasonable ‘inexperienced’ driver does not sufficiently
identify the content of the standard of care that is intended to be conveyed by the use of the
word “inexperienced”. In particular it leaves undefined what level of competence is to be
assumed in such a driver. …
[page 252]
What is at issue is the definition of a standard of reasonable care, not any external recognition of
attaining an ability to drive in accordance with that standard. And for like reasons, to describe
the relevant comparator as a “licensed driver” diverts attention from the central inquiry: what
would a reasonable driver do? Being authorized by the applicable law to drive unsupervised on a
public road is neither necessary nor a sufficient characteristic of the reasonable driver. Holding
or not holding the relevant licence is irrelevant to the description or application of the relevant
standard of care. The reasonable driver is to be identified by what such a driver would do or not
do when driving, not by what authority a driver would need to have in order to drive lawfully.
11.24 In Cook v Cook (1986) 162 CLR 376; 68 ALR 353, the imposition of
a reduced standard of care hinged upon the plaintiff’s knowledge of the
defendant’s inexperience and lack of skill. Such knowledge was held in Imbree
v McNeilly (2008) 236 CLR 510; 248 ALR 647 not to be a sufficient nor certain
enough basis to conclude that ‘some lesser yet objective standard of care
should be applied’: at [86]. The standard of care expected from a learner
driver is that of a reasonable driver: at [72].
Only Heydon J declined to overrule Cook v Cook, stating that even if the
standard of care as mandated by Cook v Cook applied to the respondent’s
duty of care, the trial judge’s finding that the respondent had ‘behaved with
carelessness over and above what could be attributed merely to inexperience’
(McNeilly v Imbree (2007) 47 MVR 536; Aust Torts Reports ¶81-895 at [48])
was correct: (2008) 236 CLR 510; 248 ALR 647 at [186].
11.25 The overruling of the reduced standard, based upon knowledge of
inexperience established over 20 years ago in Cook v Cook, brought
Australian law into line with the position of the United Kingdom. In
Nettleship v Weston [1971] 2 QB 691, the plaintiff was injured while giving
driving lessons to a friend. The English Court of Appeal held that the
defendant owed the same standard of care as a competent and experienced
driver to her passenger, despite her inexperience. Kirby J, in Imbree v
McNeilly, stated that he agreed with the practical considerations that Megaw
LJ in Nettleship v Weston (at 707–9) referred to in rejecting the argument that
a lower standard of care was owed: 236 CLR 510; 248 ALR 647 at [135]. The
considerations included:
the unpredictability of having different standards owed by the same
driver to different categories of road users;
that lengthy debates would arise to determine the exact state of
inexperience; and
the extent of the inexperience may not be revealed until the actual
incident.
Intoxication
11.26 It is often stated by the courts that the reasonable person is a sober
person: Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [38]. In
Insurance Commissioner v Joyce (1948) 77 CLR 39, the High Court held that a
passenger who knows the circumstances and voluntarily rides with a drunken
driver cannot expect any degree of care in driving, so far as it is affected by
the drunkenness. This reduced standard of care argument, often referred to as
the ‘no breach of duty’ defence, was not raised in many cases, the more
common approach being to raise the defences of contributory negligence and
voluntary assumption
[page 253]
of risk: see Chapter 13. With the decision of Imbree v McNeilly (2008) 236
CLR 510; 248 ALR 647 overruling the notion of a reduced standard of care, in
respect of learner drivers, the argument will now fail.
11.27 Section 31(2) of the Civil Liability Act 1936 (SA) provides for a
change in the standard of care owed if specific circumstances exist. The
subsection states:
The reasonable person in the defendant’s position will be taken to be sober unless —
(a) the defendant was intoxicated; and
(b) the intoxication was wholly attributable to the use of drugs in accordance with the
prescription or instructions of a medical practitioner; and
(c) the defendant was complying with the instructions and recommendations of the medical
practitioner and the manufacturer of the drugs as to what he or she should do, or avoid
doing, while under the influence of the drugs, and, in that event, the reasonable person
will be taken to be intoxicated to the same extent as the defendant.
There are no equivalents in the other jurisdictions.
Emergency
11.28
An emergency may render an action reasonable that, in other
circumstances, would not be considered reasonable. The courts acknowledge
that defendants may not recognise what is reasonable if the circumstances are
such that they are acting under pressure. An example of this can be found in
Broughton v Competitive Foods Australia Pty Ltd (2005) Aust Torts Reports
¶81-791, where the plaintiff had entered the premises of a fast food
restaurant, seeking safety from a group of young men who were chasing him.
The security guard of the restaurant turned him out of the premises. After
being forced to leave the restaurant, the plaintiff was attacked by the group
and was injured. The plaintiff argued that the security guard, employed by the
defendant, was negligent in turning him out of the premises. The Court of
Appeal took into account the fact that the security guard was acting under
pressure. Hodgson JA stated (at [13]):
In the heat of the moment, it would have been difficult for such a person to make an accurate
assessment of the probability of the group outside attempting to enter the premises, of whether
and/or how this could be prevented, of what might happen in that event, and of how all the
opposing considerations properly balanced out. On calm reflection and with the wisdom of
hindsight, I am inclined to think the right response would have been not to eject the plaintiff
and his friends; but I am not satisfied that the ordinary reasonable person would have
appreciated this in the heat of the moment.
11.29 In relation to assisting in a medical emergency, the possibility of not
acting reasonably has been recognised in ss 26 and 27 of the Civil Liability Act
2003 (Qld). For example, s 26 states:
(1) Civil liability does not attach to a person in relation to an act done or omitted in the
course of rendering first aid or other aid or assistance to a person in distress if —
(a) the first aid or other aid or assistance is given by the person while performing duties
to enhance public safety for an entity prescribed under a regulation that provides
services to enhance public safety; and
[page 254]
(b) the first aid or other aid or assistance is given in the circumstances of emergency;
and
(c) the act is done or committed in good faith and without reckless disregard for the
safety of the person in distress or someone else.
‘Person in distress’ is defined in s 25 to include a person who is injured or
suffering an illness, apparently injured or suffering an illness or at risk of
injury. This section applies to a person ‘performing duties to enhance public
safety’ for a prescribed entity (s 26(1)(a)) or the prescribed entity itself: s 27(1)
(a). The Civil Liability Regulation 2003 (Qld) lists the entities and persons
protected by these sections, for example protection is given to the Queensland
Ambulance Service and the Queensland Fire and Rescue Service: Sch 1 and 2.
The civil liability legislation of most jurisdictions gives protection if aid is
given at the scene of an emergency, in good faith and without recklessness
(called protection of good Samaritans): Civil Law (Wrongs) Act 2002 (ACT) s
5; Civil Liability Act 2002 (NSW) Pt 8; Personal Injuries (Liabilities and
Damages) Act 2003 (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability
Act 2002 (Tas) Pt 8A; Wrongs Act 1958 (Vic) Pt VIA; Civil Liability Act 2002
(WA) Pt 1D. There is no equivalent in Queensland.
In Western Australia, the Civil Liability Act 2002 s 5AAC provides
protection to staff members of schools and child care centres for acts or
omissions at the scene of an emergency in assisting an enrolled child in need
of emergency medical assistance. No civil liability will be incurred by the staff
member if the act or omission is in good faith and without recklessness in the
course of their employment. The provision does not affect the vicarious
liability of any person for the act or omission of the staff member (s
5AAC(2)) and will not apply if at the time the staff member’s ability to
exercise reasonable care was impaired by self-induced intoxication by alcohol
or drugs: s 5AAD.
Skill and knowledge of the plaintiff
11.30 The special skill of a plaintiff may have to be weighed in setting the
standard of care. Bus v Sydney County Council (1989) 167 CLR 78; 85 ALR
577 illustrates the implications of both plaintiff and defendant being skilled.
The case involved a council electrician who had been working on a Sydney
County Council service box and a private electrician who was working in the
same area. The private electrician commenced work adjacent to the service
box and came into contact with live terminals, causing him to be fatally
electrocuted. His widow and children brought an action against the council.
The trial judge refused to find negligence on the part of the council
electrician.
The New South Wales Court of Appeal dismissed the appeal ((1988) 12
NSWLR 675), following the High Court decision of Sydney County Council v
Dell’Oro (1974) 132 CLR 97; 4 ALR 417, holding that a competent electrical
tradesman has no responsibility to protect other competent electrical
tradesmen against the risk of injury from inadvertent contact with live
electrical equipment controlled by the first tradesman, when the risk is
known to the injured tradesman.
On appeal to the High Court, it was held that the decision in Sydney
County Council v Dell’Oro turned on the failure to observe the standard of
care appropriate in the circumstances of
[page 255]
that particular negligence case, rather than on the precise scope of the duty of
care, and, hence, the earlier case did not formulate a binding statement of
general principle. It also did not support an inflexible proposition that expert
tradesmen are expected to see to their own safety as regards known risks
involved in their daily work. Since that decision, the law has placed increased
emphasis on the relevance of the possibility of negligence or inadvertence by
the person to whom the duty is owed and that possibility is relevant to the
standard of care owed by employer to employee. See, for example, S J Sanders
Pty Ltd v Schmidt [2012] QCA 358 at [29].
Child plaintiff
11.31 If the plaintiff is a child, this may impose a higher standard of care
upon the defendant: Shellharbour City Council v Rigby (2006) 150 LGERA 11;
Aust Torts Reports ¶81-864. For example, motorists owe a greater standard of
care when in the vicinity of children: see Mitchell v Government Insurance
Office (NSW) (1992) 15 MVR 369 at 372–5; Gunning v Fellows (1997) 25
MVR 97 at 98; Mobbs v Kain (2009) 54 MVR 179 at [87]; Baker v MacKenzie
(2015) 72 MVR 421 at [33].
11.32 The age and experience of the child will be relevant in determining
the standard of care owed. In Doubleday v Kelly [2005] NSWCA 151, the
court held that the defendants were in breach of the duty of care they owed to
the seven-year-old plaintiff. Bryson J stated the factors that may be taken into
account:
… circumstances include the age and experience of the children and any special characteristics
which a particular child may have, such as being adept in the use of the equipment, or being
known to be inept; there are many possible variations in circumstances, including most
importantly the age and experience of the children: at [19].
See also Leyden v Caboolture Shire Council [2007] QCA 134.
Intoxicated plaintiff
11.33 The fact that a plaintiff is intoxicated at the time they are injured
does not impose a higher standard of care upon a defendant. In Parsons v
Randwick Municipal Council [2003] NSWCA 171, it was held that a plaintiff
who alleged a breach of duty against a council in respect of injuries they
suffered as a result of tripping over a crack in a footpath when affected by
alcohol, had to establish that a sober pedestrian would not have seen the crack
and would have been injured.
Some jurisdictions have expressly stated in the civil liability legislation that
the intoxication of the plaintiff does not of itself increase the standard of care
owed: Civil Liability Act 2002 (NSW) s 49(1)(c); Civil Liability Act 2003 (Qld)
s 46(1)(c). See also Cole v South Tweed Heads Rugby League Football Club Ltd
(2004) 217 CLR 469; 207 ALR 52.
3
Breach of Standard
11.34
Once the standard of care owed by the defendant in the
circumstances has been set, it is then a question of fact whether the defendant
has achieved that standard or is in breach.
[page 256]
Section 9 of the Civil Liability Act 2003 (Qld) states:
(1) A person does not breach a duty 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
reasonably to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have
taken the precautions.
See also Civil Law (Wrongs) Act 2002 (ACT) s 43; Civil Liability Act 2002
(NSW) s 5B; Civil Liability Act 1936 (SA) s 32; Civil Liability Act 2002 (Tas) s
11; Wrongs Act 1958 (Vic) s 48; Civil Liability Act 2002 (WA) s 5B. There is
no equivalent provision in the Northern Territory legislation.
11.35 The civil liability legislation provisions relating to breach of duty of
care have been described as a restatement of the law contained in the High
Court decision of Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR
217: see New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406; Council
of the City of Greater Taree v Wells [2010] NSWCA 147; Waverley Council v
Ferreira (2005) Aust Torts Reports ¶81-818 at [45].
11.36 In New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406, there
was an attempt to have the principle of Wyong Shire Council v Shirt overruled
by the High Court, but instead there was strong opposition to such an
argument. Gummow and Hayne JJ stated (at [79]):
… contrary to an argument advanced on behalf of the state, the fact that states and territories
have chosen to enact legislation which, in some cases, may alter the way in which questions of
breach of duty of care are to be approached in actions for damages for negligence provides no
reason to re-express this aspect of the common law. If anything, the diversity of legislative
approaches manifest in legislation enacted on this subject points away from the desirability of
restating the common law. [footnotes omitted]
11.37 In applying the civil liability legislation provisions, three questions
need to be addressed in order to determine whether the standard of care has
been breached in fact:
1.
Was the risk foreseeable?
2.
Was the risk not insignificant?
3.
Would a reasonable person in the position of the defendant have
taken the precautions?
Note, however, that Basten JA, in Drinkwater v Howarth [2006] NSWCA
222 at [21], stated:
I would only add that there is a danger in seeking to take each limb of s 5B [of the Civil Liability
Act 2002 (NSW)] separately in considering how it should operate. It is clear from the report of
the committee which recommended the change to the foregoing common law principles that in
changing the terminology from not far-fetched or fanciful they were concerned to ensure that
attention was given to other aspects of the risk.
Foreseeable and Not Insignificant Risk
11.38 In order for the defendant to be liable in negligence, it is necessary
that it was foreseeable that the kind of carelessness by the defendant might
cause some kind of
[page 257]
damage to the plaintiff. Further, since the civil liability legislation, the risk
must be not insignificant. The Ipp Report2 noted that the decision of Wyong
Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 was used to justify a
conclusion that the standard of care had been breached on the basis that the
risk of injury was reasonably foreseeable, without sufficient consideration of
the precautions that a reasonable person would take: at [7.14]. The Ipp Report
recommended that the formula laid down in Wyong Shire Council v Shirt
needed to be modified by replacing the phrase ‘not far-fetched or fanciful’
with ‘not insignificant’: Ipp Report, Recommendation 28. At [7.15] of the
report, it states:
The phrase “not insignificant” is intended to indicate a risk that is of a higher probability than is
indicated by the phrase “not far-fetched or fanciful”, but not so high as might be indicated by a
phrase such as “a substantial risk”. The choice of a double negative is deliberate. We do not
intend the phrase to be a synonym for “significant”. “Significant” is apt to indicate a higher
degree of probability than we intend.
It is important to note that when considering whether a risk is foreseeable
and not insignificant, ‘a mechanical or formulaic approach’ is not adopted as
‘[u]ltimately, the content of the standard of care, … is an issue of fact, which
is to be resolved by an exercise of common sense’: Erickson v Bagley [2015]
VSCA 220 at [37].
Foreseeable risk
11.39 A defendant cannot be held liable for a risk which they neither had
knowledge of nor ought to have known: Tame v New South Wales; Annetts v
Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449. The defendant
must either know of the risk or a person in their position ought to have
known of the risk: Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR
217.
Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 is the most
cited case in respect of breach in negligence as it discusses the foreseeability of
the risk and the calculus of negligence under the common law. The facts were
that the defendant shire council had dredged a deep channel in a shallow lake
and put up signs by the channel advising ‘Deep Water’. The signs were
intended to signify that the water between them was deep. The plaintiff, an
inexperienced water-skier, fell from his skis while skiing in shallow water near
the signs and struck his head on the shallow bottom of the lake. He suffered
quadriplegic paralysis as a result. The plaintiff had been under the impression
that the signs meant that the water all around them was deep.
The plaintiff sued the defendant council, alleging that it had been negligent
by putting up misleading signs. A majority of the High Court of Australia
held that the defendant council had been negligent, even though the risk of
someone misunderstanding the signs was slight, as Mason J (with whom
Stephen and Aickin JJ agreed) said:
A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable.
Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any
[page 258]
statement as to the probability or improbability of its occurrence, save that we are implicitly
asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in
many cases the greater the degree of probability of the occurrence of the risk the more readily it
will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is
not foreseeable.
… [A] risk of injury which is remote in the sense that it is extremely unlikely to occur may
nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and
therefore foreseeable: at CLR 47; ALR 221.
11.40 The mere recognition that a risk was foreseeable does not, by itself,
impose liability on the defendant: Tame v New South Wales; Annetts v
Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449.
11.41
It is not necessary that the chain of events leading to risk of injury is
foreseeable. For example, if a plaintiff has susceptibility and the defendant did
not know and could not reasonably be taken to have known, then the
defendant will not be liable for negligence. In Tame v New South Wales;
Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, the
High Court held that a police officer who had never met the plaintiff could
not possibly have foreseen that an error made on a police report (the
recording of a blood alcohol content reading at the time of a car accident)
would cause the plaintiff to suffer a psychiatric condition.
11.42 Special care must be taken to ensure that the risk is not foreseeable
merely because of hindsight. In Rosenberg v Percival (2001) 205 CLR 434; 178
ALR 577 at [16], Gleeson CJ stated:
In the way that litigation proceeds, the conduct of the parties is seen through the prism of
hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes
the focus of attention. But at the time of the allegedly tortious conduct, there may have been no
reason to single it out from a number of adverse contingencies, or to attach to it the significance
it later assumed.
In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628, a
fight broke out on the appellant’s premises on New Year’s Eve. One of the
men involved in the fight left the premises and returned with a gun and shot
the respondent and another. The respondent successfully argued before the
Court of Appeal that the appellant had breached its duty of care by failing to
employ licensed security personnel to act as crowd controllers and bouncers.
The High Court, however, allowed the appeal, stating that the risk had to be
determined prospectively (at [40]) and:
… unless the risk to be foreseen was a risk of a kind that called for, as a matter of reasonable
precaution, the presence or physical authority of bouncers or crowd controllers to deal with it
safely, failure to provide security of that kind would not be a breach of the relevant duty of care.
As noted earlier, there was no finding at trial or in the Court of Appeal that a risk of that kind
should have been foreseen: at [38].
See also Guildford Rugby League Football & Recreational Club Ltd v Coad
(2001) Aust Torts Reports ¶81-623.
[page 259]
Not insignificant risk
11.43 As noted at 11.38, the civil liability legislation in many jurisdictions
has modified the common law by adding to the consideration of reasonable
foreseeability the question of whether the risk was not insignificant. The test
of reasonable foreseeability was often criticised as being too easily satisfied.
Dixon J in Chapman v Hearse (1961) 106 CLR 112 at 115 observed, ‘I cannot
understand why any event which does happen is not foreseeable by a person
of sufficient imagination and intelligence’. In Romeo v Conservation
Commission (NT) (1998) 192 CLR 431; 151 ALR 263 at [156], Hayne J
commented ‘the fact than an accident has happened and injury has been
sustained will often be the most eloquent demonstration that the possibility of
its occurrence was not far-fetched or fanciful’. This is illustrated in Borland v
Makauskas [2000] QCA 521, where the plaintiff dived into a canal, knowing
that the water was not deep until approximately 10 ft out. The Queensland
Court of Appeal held that it was reasonably foreseeable that a person would
stand on the fence of the defendant’s property and attempt to dive into the
canal — highly unlikely, but it was reasonably foreseeable. See also Inverell
Municipal Council v Pennington (1993) Aust Torts Reports ¶81-234 at
62,403–4; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 430–1; 112
ALR 393 at 397–8.
The High Court in Tame v New South Wales; Annetts v Australian Stations
Pty Ltd (2002) 211 CLR 317; 191 ALR 449 was also critical. McHugh J stated
(at [98]):
Many of the problems that now beset negligence law and extend liability of defendants to unreal
levels stem from weakening the test of reasonable foreseeability.
His Honour went further to suggest that, at the breach stage, the question
of reasonable foreseeability should be abandoned:
So far as possible, the issue of reasonable foreseeability of risk in breach of duty situations
should no longer be determined in isolation from the issue of reasonable preventability and the
ultimate issue of what reasonable care requires. Indeed at the breach stage, it is better to avoid
the question of reasonable foreseeability. Instead courts should see their task as that of deciding
whether the defendant knew or ought to have recognised that he or she had created an
unreasonable risk of harm to others: at [102].
11.44
There have been a few decisions that consider the phrase and
application of ‘not insignificant‘. In Drinkwater v Howarth [2006] NSWCA
222, the respondent was injured when a friend was pushed towards him by
security officers, causing them both to fall. In considering whether the trial
judge had applied the relevant provision of the civil liability legislation,
requiring that the risk be not insignificant, Basten JA stated (at [19]) that the
provision was:
… not concerned with how a risk came about. If the plaintiff was clearly at risk, then it cannot
be said that the risk was insignificant. It was a clear risk.
In the same case, Hodgson J commented (at [25]):
… there is no possibility of a different result of applying a test that the risk in question be not
insignificant, from applying the test as formulated in Shirt, namely that the risk be not
farfetched or fanciful.
[page 260]
In New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [226],
Callinan and Heydon JJ did comment that:
… a flexible and realistic test should be substituted for a test of foreseeability of fancifulness or
otherwise. The test that commends itself to us is the one stated by Walsh J at first instance in
The Wagon Mound (No 2) [Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd [1963] SR
(NSW) 948 at 957], that what should be foreseen is a risk that is “significant enough in a
practical sense”.
In the Queensland Court of Appeal, in Meandarra Aerial Spraying Pty Ltd
v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at [26], in discussing the
phrase, it was stated:
… the provision was designed to increase the degree of probability of harm which is required for
a finding that a risk was foreseeable. I think that it did produce some slight increase in the
necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly
improbable as to be insignificant, but the obverse proposition may not necessarily be true. The
generality of these descriptions makes it difficult to be dogmatic about this, but the statutory
language does seem to convey a different shade of meaning. The difference is a subtle one. The
increase in the necessary degree of probability is not quantifiable and it might be so minor as to
make no difference to the result in most cases. Nevertheless, in deciding claims to which the Act
applies the “not insignificant” test must be applied instead of the somewhat less demanding test
of “not far-fetched or fanciful”.
In Benic v New South Wales [2010] NSWSC 1039, the risk of harm was the
plaintiff, a police officer, suffering psychiatric injury as a result of receiving a
threat to his life in the course of his work. The alleged breach was the failure
to provide prompt and appropriate psychological or psychiatric assistance.
The court noted that whether the risk was not insignificant was to be analysed
from the perspective of the defendant and was to be prospective: at [411]. The
evidence was that the Commissioner of Police had taken a series of steps to
address stress, including psychiatric illness, among police officers. This
evidence satisfied Garling J that the risk of psychiatric illness from the
defendant’s perspective was not insignificant: at [414]. It was reasoned that
the risk of psychiatric harm:
… might affect up to one third of officers exposed to traumatic events, and it was seen by the
Commissioner as sufficient to warrant the expenditure of monies … I doubt that the
Commissioner would have taken these steps if the risk was an insignificant one: at [414].
Shaw v Thomas [2010] NSWCA 169 involved a 10-year-old child being
injured by falling off a bunk bed when staying at a friend’s house. The risk
was defined as the respondent ‘falling and injuring himself whilst descending
from the top bunk of the bed in question’: at [45]. It was held that no
reference should be made to the relevant Australian Standards in respect of
bunk beds or a publication by the Australian Competition and Consumer
Commission that referred to evidence of bunk bed injuries to children, when
assessing whether the risk was not insignificant as the appellants had no
knowledge of such. At [46], Macfarlan JA stated that whether the risk was not
insignificant ‘was to be determined by reference to the circumstances of
which reasonable people in the position of the appellants
[page 261]
would have been aware’. In Endeavour Energy v Precision Helicopters Pty Ltd
[2015] NSWCA 169 at [32], it was stated:
The significance of a risk involves two main variables, namely the seriousness of the
consequences should the risk materialise and, secondly, the likelihood of the risk materialising.
In Vincent v Woolworths Ltd [2016] NSWCA 40, the Court of Appeal
supported the trial judge’s conclusion that personal injury due to the plaintiff
colliding with a supermarket trolley was foreseeable but did not satisfy the
requirement that it be not insignificant. In coming to this conclusion, note
was taken of the absence of evidence of any previous appreciable injury from
a trolley and the expectation that the plaintiff would be exercising reasonable
care when using a safety step as part of their job as a merchandiser. See also
Doubleday v Kelly [2005] NSWCA 151 at [11]; Bitupave Ltd (t/as Boral
Asphalt) v Pillinger (2015) 72 MVR 460 at [193].
11.45 Section 48(3) of the Wrongs Act 1958 (Vic) attempts to give some
guidance on the meaning of ‘not insignificant’. It states:
(3) For the purposes of sub-section (1)(b) —
(a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful;
and
(b) risks that are not insignificant are all risks other than insignificant risks and include,
but are not limited to, significant risks.
Reasonable Response to the Risk
11.46 If the risk was foreseeable and was not insignificant, it must be
determined whether a reasonable person would have taken the precautions in
the circumstances. To determine this, reference is made to the calculus of
negligence, that is, how a reasonable person in the position of the defendant
would have responded to the risk. The common law position is summarised
in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–8; 29 ALR 217 at 221,
where Mason J identified several factors that had been identified by the courts
for consideration in the determination of breach of the standard of care in a
particular case:
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 a class of persons including the plaintiff. If
the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable
man would do by way of response to the risk. The perception of the reasonable man’s response
calls for a consideration of the magnitude of the risk and the degree of the probability of its
occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and
any other conflicting responsibilities which the defendant may have. It is only when these
matters are balanced out that the tribunal of fact can confidently assert what is the standard of
response to be ascribed to the reasonable man placed in the defendant’s position.
11.47 If the defendant has exercised reasonable care they will not be in
breach of their duty. Reasonable care, however, does not require the complete
elimination of all risks: Vairy v Wyong Shire Council (2005) 223 CLR 422; 221
ALR 711 at [49]. The defendant’s conduct must be reasonable in light of the
identified risk: Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR
711 at [59].
[page 262]
11.48 When assessing whether the defendant responded reasonably to the
risk, it must not be done with the benefit of hindsight: Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at
[18]. This was emphasised by Hayne J in Mulligan v Coffs Harbour City
Council (2005) 233 CLR 486; 221 ALR 764 at [50]:
… it is necessary to ask first, whether the risk of injury of the kind sustained by the plaintiff was
reasonably foreseeable and secondly, what the reasonable person would have done in response
to that risk. Although the judgment about what would have been the reasonable response to the
risk must be made after the event, the inquiry is directed to identifying what the reasonable
response would have been by a person looking forward at the prospect of the risk of injury. That
must be assessed having regard to the magnitude of the risk, the degree of probability of its
occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other
conflicting responsibilities the alleged tortfeasor may have. And because the inquiry is
prospective, there is no basis for assuming that the only risk to be considered by the reasonable
person is the particular kind of risk that came to pass at the place and in the way it did.
See also New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [57],
where it was stated that the ‘inquiry requires looking forward to identify what
a reasonable person would have done, not backward to identify what would
have avoided the injury’.
11.49 The civil liability legislation in all Australian jurisdictions, except the
Northern Territory, has restated this calculus of negligence. For example, s
9(2) of the Civil Liability Act 2003 (Qld) states:
In deciding whether a reasonable person would have taken precautions against a risk of harm,
the court is to consider the following (among other relevant things) —
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
See also Civil Law (Wrongs) Act 2002 (ACT) s 43(2); Civil Liability Act
2002 (NSW) s 5B(2); Civil Liability Act 1936 (SA) s 32(2); Civil Liability Act
2002 (Tas) s 11(2); Wrongs Act 1958 (Vic) s 48(2); Civil Liability Act 2002
(WA) s 5B(2). There is no equivalent in the Northern Territory legislation.
11.50 Other ‘relevant things’ that a court may take into account may
include:
customary standards;
professional standards;
statutory standards; and
anticipation.
Not every one of these factors will be relevant in every case, but the relevant
factors are weighed against each other in order to determine what a
reasonable person in the position of the plaintiff would have done.
[page 263]
Probability that harm would occur if care not taken
11.51 In assessing the probability that the harm would occur if care was
not taken, it must be kept in mind that just because a risk is foreseeable it is
not necessarily probable. A risk that is probable may mean that the defendant
needs to take greater care. However, if the probability is very low, it may be
that a reasonable person would not take any precautions at all. For example,
in Bolton v Stone [1951] AC 850, the plaintiff was hit by a cricket ball as she
stood in front of her house. The ball came from the cricket ground across the
road which was fenced. The evidence was that it was an exceptional hit that
caused the ball to leave the grounds; in 30 years, balls had rarely been hit out.
Another neighbour gave evidence that balls had come onto his premises five
or six times in previous years. The court held that the duty of care had not
been breached. The probability of a ball causing injury was so slight that a
reasonable person would not think taking any further precautions other than
the fence would be required.
In University of Wollongong v Mitchell (2003) Aust Torts Reports ¶81-708,
the plaintiff was injured when she sat down on a seat in a theatre that had
retracted. Giles JA referred to the frequency of such incidents (at [34]):
There were 438 seats in the theatre, all tip up seats. The seats had been installed in 1990, and
apart from the respondent’s injury there have been no reports of incidents to the appellant.
Identical seats had been installed in the Hoyts Cinemas chain in 1989–90. There were 10,604
seats. The calculated usage of each seat was 1,490,074 times. There had only been one report of
injury.
However, in Jandson Pty Ltd v Welsh [2008] NSWCA 317, the lack of
evidence of any previous injury in relation to steps in a display home did not
mean that the risk was not foreseeable and that the defendant occupier should
have taken reasonable steps to prevent injury. In Romeo v Conservation
Commission (NT) (1998) 192 CLR 431; 151 ALR 263 at [128], Kirby J stated,
‘an occupier is not entitled to ignore safeguards against dangers because of
the absence of past mishaps, it is equally true that years of experience without
accidents may tend to confirm an occupier’s assessment that the risks of harm
were negligible’.
11.52 In considering the probability, the focus is on the probability of the
harm — not the conduct that leads to the harm. In Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761,
the respondent was injured when he dived off a bridge into a channel. The
evidence was that, for many years, children and adults had been seen jumping
and diving from the bridge. However, until the respondent was injured there
had been no accidents. The respondent knew that the water level varied and,
due to tidal action, the course of the channel altered. The New South Wales
Court of Appeal referred to the ‘startling frequency’ of ‘large numbers’ of
people that did jump and dive from the bridge: Great Lakes Shire Council v
Dederer; Roads and Traffic Authority of New South Wales v Dederer (2006)
Aust Torts Reports ¶81-860 at [214] per Ipp JA. However, the High Court
held that the Appeal Court had focused on the probability of the conduct, not
the risk. Gummow J stated (at [61]):
Such a characterisation incorrectly focused attention on the frequency of an antecedent course
of conduct, namely jumping and diving, and not on the probability of the risk of injury
occurring
[page 264]
as a result of that conduct, namely impact in shallow water. As Lord Porter observed in Bolton v
Stone, “in order that the act may be negligent there must not only be a reasonable possibility of
its happening but also of injury being caused” [emphasis added] [[1951] AC 850 at 858; [1951] 1
All ER 1078 at 1080–1]. In the present case, the frequency of jumping and diving was only
startling if one ignored the fact that no one was injured until Mr Dederer’s unfortunate accident.
Far from being a risk with a high probability of occurrence, the probability was in truth very
low, and this fact was masked by the Court of Appeal’s characterisation of the relevant risk.
Likely seriousness of the harm
11.53
For the likely seriousness of the harm, often referred to as
magnitude or gravity, the courts assess the seriousness of the foreseeable
potential injury. The greater the possible harm, the greater precautions may
be expected from the reasonable person.
11.54 The fact that the magnitude of the harm is very serious does not
equate to a breach of duty. It is merely one of the factors to be taken into
account. This was pointed out in Roads and Traffic Authority of New South
Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [274], where Callinan J
stated:
As to “magnitude”, I accept that diving from a height of 8–10 m was itself a risky activity. It was
for this reason that it was discouraged by police and officials, banned and the subject of the
pictograph signs. But even so, and despite flagrant defiance of the ban, not one out of the many
who had dived in the 40 or so years that had elapsed since the construction of the bridge had
been injured, so far as anyone could recall, let alone severely injured. This is to say that the risk,
although undisputedly present, had a very low degree of probability of realisation. And although
the first respondent’s injuries were grave, that is, of great magnitude, seemingly minor mishaps
can sometimes cause grave injuries.
11.55 In assessing the seriousness of the harm, the courts may consider the
possibility of a greater injury to the plaintiff due to some characteristic of the
plaintiff. Paris v Stepney Borough Council [1951] AC 367; 1 All ER 42 involved
the special susceptibility of the particular plaintiff who was a one-eyed worker
who would become totally blind if his remaining good eye was injured. Lord
Morton of Henryton stated:
In considering generally the precautions which an employer ought to take for the protection of
his workmen, it must, in my view, be right to take into account … the likelihood of an accident
happening and the gravity of the consequences … [I]f A and B, who are engaged on the same
work, run precisely the same risk of an accident happening, but if the results of an accident will
be more serious to A than to B, precautions which are adequate in the case of B may not be
adequate in the case of A, and it is the duty of the employer to take such additional precautions
for the safety of A as may be reasonable. The duty to take reasonable precautions against injury
is one which is owed by the employer to every individual workman: at AC 385–6; All ER 51.
11.56
The time for assessing the risk in terms of probability and
seriousness is the time of the injury: Roe v Minister of Health [1954] 2 QB 66.
This may be particularly difficult to assess in an area of evolving knowledge,
especially in technical areas, including medicine.
[page 265]
In Roe v Minister of Health, the two plaintiffs went into hospital for a
minor operation. They were each given the spinal anaesthetic nupercaine,
contained in sealed glass ampoules which were stored in a solution of phenol
to sterilise them. After the operation, the plaintiffs were found to have spastic
paraplegia caused by the presence of phenol in the anaesthetic injected into
each spine. The phenol had contaminated the nupercaine through invisible
cracks in the glass ampoules and, as a result, the plaintiffs were paralysed
from the waist down. They sued the anaesthetist, alleging that he had been
negligent by failing to take steps to ensure that the nupercaine was
contamination-free. Both the trial judge and the Court of Appeal held that the
defendant had not been negligent according to the standard of medical
knowledge in 1947, the time of the accident. At that date, no one knew of the
possibility of contamination of nupercaine by phenol in this way. Denning LJ
commented (at 83–4):
[The anaesthetist] sought to escape the danger of infection by disinfecting the ampoule. In
escaping that known danger he unfortunately ran into another danger. He did not know that
there could be undetectable cracks, but it was not negligent for him not to know it at that time.
We must not look at the 1947 accident with 1954 spectacles.
In H v Royal Alexandra Hospital for Children (1990) Aust Torts Reports
¶81-000, the plaintiff had been diagnosed as a haemophiliac in 1980, when he
was six. He was given blood transfusions at the defendant hospital in March
1982 and September 1983. One of those transfusions infected the plaintiff
with the human immunodeficiency virus (HIV). After being infected with
HIV, the plaintiff contracted AIDS and sued the hospital (among others),
alleging that it had been negligent by not adequately screening for HIV in the
samples of blood it received from the blood bank.
The first case of AIDS in Australia was not diagnosed until April 1983. At
first, it was not understood that HIV could be contracted from blood
transfusions. A test for detecting the HIV virus in blood was not developed in
the United States until late 1984, and licensed for general use only in May
1985.
The Supreme Court of New South Wales held that the defendant hospital
had not been negligent in respect of the transfusion given in March 1982, but
it had been negligent in respect of the transfusion given in September 1983.
Badgery-Parker J held in relation to the earlier transfusion:
It is therefore quite impossible for the plaintiff to succeed on the basis that in and before March
1982 [the defendant] ought to have foreseen and guarded against the risk that the plaintiff
might, through Factor VIII therapy, become infected with, specifically, the agent causing the
outbreak of immune deficiency illnesses in homosexuals. The most that the evidence establishes
is that there was in March 1982 … a foreseeable risk that recipients of blood products would
become infected with blood borne viruses as yet unknown and unidentified: at 67,528.
In relation to the later transfusion, Badgery-Parker J stated (at 67,529):
The first Australian case of AIDS was published in April 1983. I have no difficulty in concluding
that reasonably informed physicians, scientists and blood transfusion services in this country
ought to have been well aware by at latest April 1983 that there was a real risk that among the
unknown and unidentified sources of infection which blood and blood products had the
capacity to carry must be numbered whatever agent was responsible for the production of AIDS.
[page 266]
Burden of taking precautions to avoid the harm
11.57 The presence or absence of practical precautions available to the
defendant is a significant factor in determining breach of the standard of care
and often leads to the most debate. The plaintiff must establish what
precautions were available to the defendant and prove that by failing to take
such precautions the defendant failed to act reasonably. In considering
precautions it must be questioned whether the precaution was available at the
time of the breach and whether the precaution is reasonable.
11.58 Judged as at time of breach The precautions must be available at
the time of the breach and therefore the precautions must be assessed as at
the time of the alleged breach of duty, not with hindsight: Thornton v Sweeney
(2011) 59 MVR 155 at [131]; Vairy v Wyong Shire Council (2005) 223 CLR
422; 221 ALR 711 at [126]; Neindorf v Junkovic (2005) 222 ALR 631 at [93].
11.59 Reasonable precaution The reasonableness of the precaution will
be assessed in light of all of the circumstances. For example, if the risk of
injury is slight then instruction may be sufficient: House v Forestry Tasmania
(1995) Aust Torts Reports ¶81-331 (involving pruning trees). Erecting signs
to warn of danger may be considered a reasonable precaution. In Roads and
Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR
761, the respondent argued that the sign, a pictograph depicting diving from
the bridge as prohibited, was not sufficient as it did not actually warn of any
danger. The trial judge, Dunford J, agreed, holding that a sign that brought
the danger to the attention of the respondent would ‘probably have inhibited
him from diving, particularly if it inhibited large numbers of others from
doing likewise and so tended to break the culture or practice which had
developed’: Dederer v Roads and Traffic Authority (2005) Aust Torts Reports
¶81-792 at [70]. Ipp JA of the Court of Appeal stated that the signs were ‘in a
word, useless’ and that the appellant should:
… have ascertained whether the pictograph signs were proving effective. On that basis, the
[appellant] ought to have known that they were not: Great Lakes Shire Council v Dederer; Roads
and Traffic Authority of New South Wales v Dederer (2006) Aust Torts Reports ¶81-860 at [219]
and [220].
The High Court, however disagreed, stating:
The trial judge and the majority in the Court of Appeal impermissibly reasoned that if a warning
is given, and if the conduct against which that warning is directed continues notwithstanding
the warning, then the party who gave the warning is shown to have been negligent by reason of
the warning having failed. Quite apart from its inconsistency with the scope of the [appellant’s]
duty of care, this reasoning erroneously short-circuits the inquiry into breach of duty that is
required by Shirt …
Even reasonable warnings can “fail”, but the question is always the reasonableness of the
warning, not its failure: (2007) 234 CLR 330; 238 ALR 761 at [55]–[56].
11.60 In considering whether the precaution is reasonable, note is taken of
the burden of taking the precaution. The court has regard to the expense,
difficulty and convenience of using them: Caledonian Collieries Ltd v Speirs
(1957) 97 CLR 202; Australian Iron & Steel Ltd
[page 267]
v Krstevski (1973) 128 CLR 666; 2 ALR 45; Wyong Shire Council v Shirt (1980)
146 CLR 40; 29 ALR 217.
In Romeo v Conservation Commission (NT) (1998) 192 CLR 431; 151 ALR
263, the plaintiff fell over a cliff in a reserve that was managed by the
defendant. The plaintiff argued that the cliff should have been fenced and
signed. The majority of the court held that a reasonable authority would not
have fenced the two kilometres of cliff, evaluating the expense in light of the
fact that the risk was of such low probability due to the fact that the cliffs were
an obvious danger. See also Vairy v Wyong Shire Council (2005) 223 CLR 422;
221 ALR at [91].
11.61 The inability of the defendant to afford the precautions does not
render the precautions unreasonable: PQ v Australian Red Cross Society
[1992] 1 VR 19. However, it may be relevant if the defendant did not create
the risk but is under a duty to take precautions in relation to the risk. This
was illustrated in Goldman v Hargrave [1967] 1 AC 645, where a gum tree on
the defendant’s property was struck by lightning and was ignited. It was
impossible to put the fire out while the tree was standing because of the
height of the fire. The defendant cleared a space around the tree and
dampened the surrounding area with water. The next day a tree-feller was
sent to the defendant’s land by the district fire control officer by which time
the tree was burning fiercely. The tree was cut down, but the defendant failed
to take any steps to put the fire out with water, as he took the view that the
best method of extinguishing a fire of this kind was to let it burn itself out.
Three days after the tree had been cut down, a strong wind blew up and the
temperature rose to about 40°C. The fire in the tree reignited and spread to
neighbouring land, causing extensive damage. The neighbours sued the
defendant, alleging that he had been negligent in failing to take steps to put
out the fire after the tree had been felled.
On appeal from the High Court, the Privy Council held that the defendant
had been negligent. On the standard of care expected of the defendant in
these circumstances, Lord Wilberforce (delivering the opinion of the Privy
Council) stated (at 663):
[T]he law must take account of the fact that the occupier … has, ex hypothesi, had this
hazard/thrust upon him through no seeking or fault of his own. His interest and his resources,
whether physical or material, may be of a very modest character either in relation to the
magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which
required of him in such unsought circumstances in his neighbour’s interest a physical effort of
which he is not capable, or an excessive expenditure of money, would be unenforceable and
unjust. One may say in general terms that the existence of a duty must be based upon knowledge
of the hazard, ability to foresee the consequences of not checking or removing it, and the ability
to abate it.
11.62 Failing to warn is a common allegation of breach, and is arguably an
easy and inexpensive precaution to give a warning of a risk: Roads and Traffic
Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761.
However, sometimes the risk is an obvious risk and the court may find that a
reasonable person would not think it necessary to give a warning. In Woods v
Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 at [159], the
majority of the High Court held that there was no breach in the standard of
care by failing to warn the players of indoor cricket of the increased risk of
eye injury as it was an obvious risk.
11.63
Legislation has clarified the precaution of giving warnings in
particular situations, such as where the risk is obvious. The civil liability
legislation provides that the defendant
[page 268]
does not owe a duty to a plaintiff to warn of an obvious risk. ‘Obvious risk’ is
defined as a risk that, in the circumstances, would have been obvious to a
reasonable person, including risks that are patent or a matter of common
knowledge: Civil Liability Act 2002 (NSW) ss 5F, 5H; Civil Liability Act 2003
(Qld) ss 13, 15; Civil Liability Act 1936 (SA) ss 36, 38; Civil Liability Act 2002
(Tas) ss 15, 17; Civil Liability Act 2002 (WA) ss 5M, 5O. There is no
equivalent provision in the Australian Capital Territory, Northern Territory
or Victorian legislation.
If the plaintiff argues failure to warn as a negligent act, the defendant may
establish the risk in question was an obvious risk and may avoid liability:
Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81–955 at [83].
The test to determine whether a risk is an obvious risk is an objective one,
asking whether the risk was obvious to a reasonable person in the position of
the plaintiff: Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191
at [61]; Collins v Clarence Valley Council [2015] NSWCA 263.
In Schultz v McCormack [2015] NSWCA 330 at [85], it was suggested that
as the provision ‘cuts across of the scope of the duty of care’ it is appropriate
to consider after concluding there is a duty of care and that the scope of that
duty includes the relevant risk of harm. See also Collins v Clarence Valley
Council [2015] NSWCA 263 at [120]–[122] and Chapter 13.
11.64 Other considerations in respect of precautions In considering the
precautions that a reasonable person would take, the risk of injury is not to be
considered in isolation; it must be considered as part of all similar risks of
harm that must be avoided: Civil Law (Wrongs) Act 2002 (ACT) s 44(a); Civil
Liability Act 2002 (NSW) s 5C(a); Civil Liability Act 2003 (Qld) s 10(a);
Wrongs Act 1958 (Vic) s 49(a). See also Romeo v Conservation Commission
(NT) (1998) 192 CLR 431; 151 ALR 263.
11.65 The fact that the risk could have been avoided by doing something
in a different way does not in itself give rise to liability: Civil Law (Wrongs)
Act 2002 (ACT) s 44(b); Civil Liability Act 2002 (NSW) s 5C(b); Civil
Liability Act 2003 (Qld) s 10(b); Civil Liability Act 2002 (Tas) s 12(a); Wrongs
Act 1958 (Vic) s 49(b). The plaintiff must establish that the method adopted
by the defendant was unreasonable in the circumstances and that a more
reasonable method existed.
In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR
337, the plaintiff contracted hepatitis A after consuming contaminated
oysters. It was alleged that the distributor of the oysters had been negligent by
either not withholding the oysters from sale or not giving a warning of the
risk of contamination. It was acknowledged that a duty of care was owed to
ensure that the oysters were safe for human consumption. The High Court
had to consider how a reasonable producer would respond to the foreseeable
risk of contamination. In this case, the contamination occurred due to rain
flushing heavy concentrates of faecal matter into the lake where the oysters
were grown.
The plaintiff argued that the distributor should not have harvested the
oysters until a sufficient period had passed so that the risk of contamination
was minimal. This would have required the source of the pollution to be
identified, a task that was beyond the power of the distributor. McHugh J
stated (at [110]–[111]):
[page 269]
The notion that the Barclay companies should have gone to the expense of doing these things
and closing down its business in the meantime sounds like a counsel of perfection rather than a
reasonable response to a risk of injury that had a low degree of p