Study Guide for End of Semester Exam
Intentional Torts against the Person
1. Battery
Definition: Battiato v Lagana
a) Directly and intentionally
Direct – Reynolds v Clarke
Intent – Gray v Barr – intent of contact, not the harm that results
Intentional meaning voluntary
b) Interferes
Lord Goff sterilisation case – ‘slightest touching without consent can
amount to battery’
c) With his or her person without lawful justification
MacNamara v Duncan – onus is on the defendant to prove consent
Marion’s Case
Positive act Innes v Wylie
Does not have to be hostile Lord Goff and Collins v Wilcock
2. Assault
a) Direct threat by the defendant
Direct – meaning that the defendant must have the means of carrying
out the threat - Stephen v Myers
b) That causes the plaintiff to reasonably apprehend
Brady v Schatzel – changed the test of ‘fear’ to reasonable
apprehension that violence was to ensue (knowledge is essential)
c) Imminent harmful contact with his or her person
Zanker v Vartzokas - In the case of a continuing or ongoing threat, the
time period could be extended
*Conditional threats
Tuberville v Savage
If a threat is expressed in a condition way that states the threat is not
to be carried out, there can be no reasonable apprehension that
violence is to ensure, and therefore no assault.
Hall v Fonceca
Intent – intention to cause apprehension in plaintiff that a battery will
ensue is sufficient
*White v Connolly – Qld – words alone do not constitute assault, there
must be an a bodily act or gesture – Criminal Code s 245
Barton v Armstrong – NSW – verbal threats can amount to assault
3. False imprisonment
a) Direct, intentional act by the defendant
Direct – D directly impacted on P
Intentional – voluntary, D must intend to deprive P of liberty
Myer Stores v Soo – it is enough to prove that there was enough force
upon the defendant’s will so as to induce him to submit to deprivation
of liberty. Actual physical restraint does not have to be proved.
b) That totally deprives the plaintiff of his or her liberty
Total restraint means no reasonable means of escape
Symes v Mahon – it was sufficient that the plaintiff believed he had no
reasonable means of escape and completely submitted himself to the
plaintiff
Bird v Jones – deprivation must be total - no false imprisonment as it
was only a partial obstruction; must be compelled to stay in one place
Burton v Davies – it is false imprisonment if there is no reasonable
means of escape – the defendant was driving at such a speed as to
prevent the plaintiff from alighting – “If I lock a person in a room from
which he may jump to the group at the risk of life and limb, I cannot be
heard to say that he was not imprisoned because he was free to leap
from the window”
R v Macquarie and Budge
Jumping into the water was not a reasonable means of escape.
c) Without lawful justification
Rixon v Star City – action failed because there was lawful justification
*Knowledge of imprisonment necessary?
No – Murray v Ministry of Defence – will affect damages
Defences to Intentional Torts Against the Person
1. Necessity
1. Can commit a minor wrong to avoid a major wrong if this interference
is necessary to save preserve life or protect persons from real and
imminent harm Kirk v Gregory
a) D must prove an urgent situation of imminent peril actually existed
b) Not necessary for D to prove that means adopted actually succeeded
Cope v Sharpe
c) No need to prove that person/property would have suffered injury or
destruction
2. Where a person is unable to give consent to a medical treatment in a
situation where the plaintiff’s life is at risk Re F
a) Treatment should be limited to what is necessary to save life of
patient
3. Defence to self, others and property
a) The act must be reasonably proportionate/necessary to counter
perceived threat – not excessive
R v Howe – the defendant’s response must not be judged too harshly –
instinctive
b) Reasonable belief that he/she was in danger is sufficient
c) Self defence can be used in defence of others
d) D must adopt means available to avoid using force
4. Consent
MacNamara v Duncan – onus on defendant to prove consent
For consent to count as a defence, it must be
i)
Real and freely given with respect to the tortious act itself
(meaning the plaintiff needs to have been informed in broad terms
of the general nature of the physical contact)
ii)
Any consent given must not be exceeded
Freeman v Home Office - consent under duress is not valid
R v Williams – consent under fraud is not valid
Re F – medical practitioners must obtain consent
Giumelli v Johnston – sporting contact
Roberston v The Balmain New Ferry Company – withdrawal of consent –
person who revokes consent is entitled to liberty as soon as it is
reasonably convenient for the other party to release them
Collins v Wilcock - ordinary, everyday conduct
5. Provocation
No defence at common law
White v Connolly – defence in criminal code s 268, 269
Must be loss of self-control, in ‘the heat of the moment before the time for
passion was allowed to cool’
6. Illegality
7. Lawful justification
Criminal code 545A
8. Insanity
Defence of insanity not available Morris v Marsden
Trespass to Land
1. The interference of land must be in the lawful possession of the
plaintiff
Delaney v T P Smith – plaintiff was not pursuant to a lawful proprietary
right. Trespass to land is available as a remedy to someone who is in
possession of land pursuant to some form of proprietary right
2. There must be a positive act and a direct interference
Esso Petroleum v Southport Corporation – not trespass because it was not
direct
3. The interference ‘with or entry upon’ must be with ‘land’
Baron v Skyviews – not trespass, “restricting the rights of an owner in the
air space above his land to such a height that is necessary for the ordinary
use and enjoyment of his land”
Kelsen v Imperial Tobacco – airspace can constitute ‘land’
Graham v K.D. Morris – transient intrusions can amount to trespass
4. There must be fault
Public transport commission of New South Wales v Perry – not trespass as
an epileptic fit is involuntary
5. There must be lack of consent
Halliday v Nevill – if consent is justified then there is no trespass
Remedies
o Damages
If the trespass to land results in damage, then the defendant may be held liable.
The test is whether the damage was a reasonably foreseeable/reasonable
consequence of the trespass. (Extent of liability)
Hogan v Wright
Horse escaping and getting injured was reasonably foreseeable
consequence.
Mayfield Fair Limited v Pears – defendant unlawfully parked his car on the
plaintiff’s premises. Car caught fire and damaged the building. Held: not liable
as the fire was not a direct consequence of parking the car.
Exemplary damages – TCN Channel Nine v Anning – exemplary damages were
awarded to mark disapproval of D’s conduct and to deter that person and others
from acting this way
Nominal damages – if there is no damage
Aggravated damages – for act done with purpose to cause injury to feeling
(humiliation etc) or done with knowledge of trespass
o Injunction
Graham v K D Morris
An injunction is only available at the discretion of the court and is an order from
the court ordering that someone cease or assist an activity or not undertake a
certain activity. The courts take into account the behavior of the parties on
considering whether or not an injunction ought to be granted.
Defences
o Necessity
Necessity is a defence to trespass on land if the trespass was reasonably
necessary to protect persons or property from the threat of real and
imminent harm. Defendant must establish that an urgent situation of
imminent peril existed. Southwark London Borough v Williams
o Re-entry on land
o Inevitable accident
Public Transport Commission of NSW v Perry
o Consent
Cannot be exceeded:
Lincoln Hunt Australia Pty Ltd v Willesee
Reporter and TV crew entered plaintiff’s premises and filmed and
questioned those present.
Held: defendant was trespassing as the implied invitation did not extend
to their purposes
TCN Channel Nine v Anning
ACA crew entered into property through unlocked gate and filmed the
plaintiff
Implied licence will be applicable only in certain circumstances. Once it is
revoked, the licencee becomes a trespasser.
Held: implied licence – gate unlocked – did not extend to filming of the
plaintiff’s premises
Can be revoked:
Cowell v Rosehill Racecourse
Plaintiff was asked to leave. When he refused, he was forcibly ejected
from the racecourse.
Held: licensee does not become a trespasser until he/she is given notice
that the licence has been revoked. Licensee has a reasonable amount of
time to leave the property before becoming a trespasser. The occupier has
lawful permission to remove him/her if they don’t leave.
R v Barker
Held: A person who has permission to enter land for a specific purpose
commits a trespass if he enters for any other purpose
o Lawful authority
Property Law Act (Qld) 1974 s 180
Where it is reasonably necessary in the interests of effective use in any
reasonable manner of land that such land should have a statutory right of
user in respect of that land, the court may impose upon the owner of such
land, an obligation of user to permit. The court will only grant this licence
if:
a) Consistent with public interest
b) Owner of the land can be adequately compensated
c) The owner of the land has refused consent despite the reasonableness
of the trespass OR no owner can be found
Nuisance
Definition: an unreasonable, not necessarily direct, interference with the use and
enjoyment of land in respect of a person who has the right to exclusive
possession of the land
Nuisance is:
o Action on the case
o Usually indirect
o The defendant must show that the defendant’s interference was serious
and unreasonable
o Property based – the plaintiff is the occupier of land
o Interference with enjoyment of land which does not disturb the owner’s
right to possession of land
o Purpose of action in private nuisance to protect the right to use and enjoy
the land
Public nuisance
o Crime
o Interferes with rights of public
o An individual can bring an action in public nuisance if he/she has suffered
particular damage above and beyond the public in general and the
damage is different in nature and extent
There are two types of nuisance:
o Actual/material damage – plaintiff will generally succeed
o Non material damage - enjoyment of land – must look at factors
For non-material damage, we look at the unreasonableness of the interference:
a) Triviality
– requirement of ‘substantial’ interference
Walter v Selfe
Brick kiln – smell and cinders affected the plaintiff
Held: successful in obtaining injunction
“Ought this inconvenience to be considered in fact as more than fanciful…as an
inconvenience materially interfering with the ordinary comfort physically of
human existence”
Goldman v Hargrave
Fire burnt down Goldman’s house = non trivial damage.
Both nuisance and negligence
Halsey v Esso Petroleum
Held: serious damage is likely to be viewed as an unreasonable interference
b) Give and Take
General rule is that the law requires ‘give and take’ between neighbours.
Nuisance is not an absolute matter. It requires balancing of various rights of
adjoining landholders.
Kennaway v Thompson
Held: successful in injunction restraining the frequency and duration of motor
boat racing
“Intervention by injunction is only justified when the irritating noise causes
inconvenience beyond what other occupiers in the neighbourhood can be
expected to bear. The question is whether the neighbour is using his property
reasonably, having regard to the fact that he has a neighbour.”
Clary v Principal and Council of Women’s College
Held: not nuisance, ordinary and reasonable use of land
“Noises made by the students were only noises of the kind that are incidental to
the occupation of premises as a dwelling.”
c) Hyper sensitivity
Robinson v Kilvert
Held: not nuisance. The law does not compensate people with sensitivities
beyond that of an ordinary person
d) Locality
St Helen’s Smelting v Tipping
Locality can sometimes be an important factor to take into account whether
something is unreasonable
You must put up with the necessary interferences associated with locality but
“when an occupation is carried on by one person in the neighbourhood of
another, and the result of that trade…is a material injury to property, then there
unquestionably arises a very different consideration”
Held: material damage to plaintiff’s trees and plantations caused by the
defendant’s smelter amounted to nuisance – it was not an industrial area
Other factors
Time
Halsey v Esso Petroleum
Held: nuisance – injunction granted to limit operation during the night
Unjustifiable action may be acceptable during the day
Duration
The greater the duration, the more likely that it will amount to actionable
nuisance, however this does not mean that a short duration isn’t actionable
Munro v Southern Dairies
Held: Loss of a single night’s sleep amounted to a substantial interference
Who can sue?
Peden v Bortolazzo
A landlord is not liable to a neighbour for a nuisance created by the tenant,
unless the landlord expressly authorized the nuisance or it was certain to result
from the purposes for which the property was let.
 The landlord does not have to terminate the contract of lease once
nuisance is known
 The landlord does not control the tenant
 The landlord does not owe a duty of care to neighbours
Defences
‘Moved to the defence’ is no defence
Challen v McLeod Country Golf Club
Statutory Authority
A nuisance is authorized if it is an inevitable consequence of an activity that is
expressly or impliedly authorized by statute.
Remedies
1. Injunction
2. Damages
Intentional Torts to Chattels
General comments:
All three actions protect interests in possession
Trespass to Goods
a) A direct, intentional interference (Colwill v Reeves)
‘Direct’ - acts of the defendant that make immediate contact with P’s goods
without any voluntary human intervention
‘Intent’ - intention of interference with property, regardless of knowledge of tort
(Colwill)
b) With the property in possession of another (Johnson v Diprose)
Possession of the good must be actual or constructive at the time of interference
c) Without lawful justification (Penfolds Wines v Elliot)
Right to sue: actual or constructive possession
Exception to this rule: a person with a right to immediate possession may sue in
trespass to goods where the direct interference of a third party is to possession
of a servant, agent or bailee holding under irrevocable bailment (Penfolds)
Constructive possession v Immediate right to possession
- immediate right to possession usually occurs when you give the good to
someone else or someone else has taken your good
Is trespass to goods actionable per se?
Contact with goods – yes (mere touching with no damage is not trespass –
Wilson v Marshall)
Asportation – no (Kirk v Gregory)
Examples of Trespass to Goods
Moving items, stealing of goods
Conversion
Definition: dealing with goods in a manner that is repugnant to the immediate
right of the possession of the person who has the property of the chattel
Elements:
a) Intentional act that is (Ashby v Tolhurst)
b) Inconsistent with the rights of the person who has possession or the right
to possession (Armory v Delamirie)
Ownership is relative and not necessary to the immediate right of possession
c) So extensive an encroachment on the rights of person in possession so as
to exclude them from the use and possession of the goods
Right to sue: actual or constructive possession of the goods, or the immediate
right to possession of the goods at the time of the conversion (Armory v
Delamarie)
Actions amounting to conversion:
1. Wrongful destruction or alteration Hollins v Fowler
2. Wrongful taking of goods Healing Sales
3. Wrongful delivery Glass v Hollander
4. Detention (person refuses to give up a good) Flowfill Packaging
5. Wrongful use of goods – Penfolds Wines v Elliot
^Wrongful taking of goods and wrongful use of goods require an intent to
exercise dominion over the goods
*Bailee who has actual possession of goods can sue in conversion
Advantages
- Protects P’s dominion and control of the goods, not their physical condition
Detinue
Definition: possession of goods after a proper demand has been made for their
return
Elements:
a) Goods must have been in D’s possession at some time, even though they
may not be in D’s possession at the time the action is bought (Jones v
Dowle)
b) Demand by the plaintiff for the return of the good (Lloyd v Osborne) (John
F Goulding)
Demand must be clear and give sufficiently clear instructions regarding delivery
c) Clear refusal by the defendant to return them (Ming Kuei Property
Investment v Hampson)
Does not need to be express refusal – if a proper demand has been made, failing
to respond within a reasonable time may be regarded as a refusal
Right to sue: immediate right to possession
Advantages of detinue
- Allows return of goods
- Time does not begin to run until demand and refusal have been
established
- It doesn’t matter if D no longer has the goods
- D will know that P is claiming an interest in goods (through demand)
- Action of detinue may be available even when the period of limitation for
bringing the action for conversion has expired
- Conversion – damages assessed as of the date the conversion took place
- Detinue – damages assessed as of the date the judgment is given by the
court (may be years later)
Damages
Trespass to Goods
Nominal damages may be awarded even though goods have not suffered
damage
Conversion
Usually the full market value of the goods
Detinue
Entitled to value of goods at the time of trial, can seek return of chattel or
recovery of value, or judgment for return
Damage to reversionary interest in goods
Available where plaintiff has no right to immediate possession but there is
damage caused to goods when they are returned (usually permanent damage)
Penfolds Wines v Elliott. This helps the owner who is not entitled to immediate
possession.
Defences
Jus tertii
The right of a third party who is in possession of goods, even if that possession is
wrongful, to bring an action for trespass to goods against anyone (except the
rightful owner) who interferes with that person’s possession
Trespass to goods: no defence – except where the defendant is acting on behalf
of the true owner or where the defendant has acted with the authority of the true
owner
Conversion: defence – where a defendant can show that someone other than
the plaintiff is entitled to possession of the goods, this destroys the plaintiff’s
right to sue as the third party would have the immediate right to possession
Necessity
 May be available if interference with the goods was reasonably necessary
to protect goods or persons from the threat of real and imminent harm.
Must prove that situation of imminent peril actually existed Southwark
London Borough Council v Williams
Illegality
 The defence that the plaintiff was involved in an illegal act when the tort
complained of occurred, and therefore the action should fail. It will apply
if the defendant can prove that the tort complained of was an essential
part of the illegal activity. (Jackson v Harrison (1978) 138 CLR 438)
Mistake
 Mistake is not a defence to trespass to goods.
Recaption of Chattels
 This defence of reception is a common law right that allows a person who has
been deprived of possession of goods to recover them immediately and
provides immunity for the defendant.
 The retaking of goods must be in a reasonable manner. Reasonableness varies
and depends on the case, but generally the courts will require that the force
used to retake the goods must not have been more than what was reasonably
necessary to retake the good.
Distress
 ‘The common law right of distress is nothing more than the right of a person,
in certain circumstances, to seize and detain the goods of another person in
order to force the other to perform some obligation or to punish the other for
the non-performance of an obligation.’ (Trindade)
Inevitable Accident
 This defence almost speaks for itself – once fault has been proved on the part
of the defendant, he/she can escape liability by showing that the act was done
without intention or negligence.
Consent
 If the defendant proves that the plaintiff consented to the conduct, then the
action will not succeed.
Lawful Authority
 At common law, there are many rights/powers that a police officer has in
relation to the seizure and detention of goods.
 Also, there are other rights/powers that are vested in officials which are laid
out by statute.
Negligence
1. The Civil Liability Act
a. S 4 (2) The Act applies to breach of duty happening on or after 2
December 2002.
b. S 7 (1) This Act does not create or confer any cause of civil action
for the recovery of damages.
c. S 7 (5) This Act is not a codification of the law relating to civil
claims for damages for harm.
2. Duty of Care
Duty of Care is established at common law.
Manley v Alexander – a driver owes a duty of care to passengers,
pedestrians and other road users
Czatyrko v Cowan Edith University – Employer/Employee
Thompson v Woolworths – Occupier/Entrant
Donoghue v Stevenson – Manufacturer/Consumer
Reasonable foreseeability
a. Broad general inquiry - plaintiff as a class of persons, not a specific
individual
b. The precise sequence of events does not need to be foreseeable –
Chapman v Hearse
c. The unforeseeable plaintiff – Palsgraf v Long Island Railroad Co.
Lord Atkin’s general neighbour principle in Donoghue v Stevenson
“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 to
reasonably have them in contemplation when I am directing my mind to
the acts or omissions which are called into question?”
- General principle (common factors in duty) that enables new
duty relationships to be established in novel situations
3. Breach
Looking at the conduct of the defendant: was the risk of breach
reasonably foreseeable?
Relevant law:
S 9 of the CLA deals with breach of duty. considers whether the risk of
breach of duty was reasonably foreseeable and what a reasonable person
would have done.
S9
(1)
a) Risk was foreseeable
b) The risk was not insignificant – changed from ‘not far fetched and
fanciful’ in Wyong v Shirt
Drinkwater v Howarth considered this change and it was held that the
change did not affect the end result
c) Reasonable person in the position of the defendant
Standard of care owed by a ‘reasonable person’
McHale v Watson – standard of care owed by a child – ‘reasonable child’
Carrier v Bonham – standard of care not reduced for a person of unsound
mind
Imbree v McNeilly – standard of care owed an inexperienced driver is the
same standard of care owed by an experienced driver
Neindorf v Junkovic – standard of care owed by an occupier to an entrant
(no breach of duty)
2.
Test from Wyong –
If the risk was foreseeable, then what would a reasonable person have
done/what precautions would have been taken, having regard to:
a)
b)
c)
d)
Probability – Bolton v Stone
Seriousness – Paris v Stepney Borough Council
Burden of precautions – Caledonian Colliers v Spiers (extent of
precautions)
Social utility
Res Ipsa Locquitur – the thing speaks for itself
Helps the plaintiff prove a breach of duty
4. Causation
s 11 1 a), 2 and s 12 deal with factual causation.
11 1 a) Factual causation – Barnett v Chelsea – the ‘but for’ test
But for the defendant’s breach, would the plaintiff have suffered
harm?
2
Exceptional circumstances where the ‘but for’ test is inappropriate
in cases where there is contributory negligence or third party
intervention.
March v Stramare – Mason CJ – novus actus interveniens
The plaintiff or third party’s fault should not supersede the
defendant’s negligence when the defendant’s wrongful conduct is
very likely to cause harm. ‘Common sense’ reasoning, whether
actual damage to P was the very thing likely to occur as
consequence of D’s conduct.
12
Onus is on the plaintiff to prove on the balance of probabilities, any
fact relating to causation
Strong v Woolworths
Applies the CLA. Main issue was causation. It was held that had there been
cleaning of the sidewalk sales area at 15 minute intervals, the appellant
would likely not have suffered her injury.
5. Remoteness/Scope of Liability
Aim: to limit injuries for which the defendant is liable
S 11 b) Scope of Liability (CLA equivalent of remoteness at common law)
Common law cases still relevant
Question: Was the injury suffered reasonably foreseeable?
 Reasonable foreseeability - The Wagon Mound 1
 Type of injury must be reasonably foreseeable - Tremain v
Pike
 Extent of injury does not need to be foreseeable - Lord
Hughes v Advocate – defendant held liable regardless of extent so
long it is the type of damage that is foreseeable

-
Egg-shell skull principle - Smith v Leech Brain – the defendant
must take the plaintiff as they find them
Extends scope of liability
Allows the plaintiff to be compensated
Predisposition to harm is taken into account for damages
Multiple Tortfeasors
Joint tortfeasors
Two or more tortfeasors responsible for the same wrong
-
Vicarious liability (employer/employee)
Working together in concert to achieve a common end
Thompson v ACT
Share and breach of duty
Several tortfeasors
Two or more tortfeasors responsible for different wrongs
- Nilon v Bezzina
- Hunt v Prontonotarios – multiple car accidents held to
have damaged the spine in two distinct ways
Concurrent tortfeasors
Two are more tortfeasors responsible for the same damage
Joint tortfeasors are also concurrent tortfeasors
Several concurrent tortfeasors
Two or more tortfeasors responsible for the same damage through
different wrongs
- Chapman v Hearse
Contribution between joint and several tortfeasors
Contribution
A claim by D1 against D2 for a contribution towards D1’s liability/liability for
harm caused by multiple wrongdoers is divided between them according to their
respective shares or responsibility
How it works:
1. Make final amount of damages awarded
2. Make any reductions required (e.g. contributory negligence)
3. Seek contribution from any other party who would have been sued at any
point.
Law Reform Act (Qld)
s6
a) Judgment against one tortfeasor doesn’t bar action against another
joint tortfeasor – changed the common law – recognized in Thomspon v
ACT
b) Successive actions will not increase damages awarded in first judgment
(100% rule)
c) Any tortfeasor can recover contribution from another tortfeasor, who if
sued, would have been found liable (addressed in Brambles case)
*For a particular tortfeasor to have to pay contribution, that tortfeasor does not
necessarily have to be found liable by the court if the plaintiff is able to show
that that tortfeasor would have been found liable
s7
Courts decide the amount awarded that is ‘just and equitable’
Relevant cases
Thompson v ACT
Held: releasing one or more joint concurrent torfeasors does not bar action
against any others. Releasing channel 9 does not prevent Thompson from suing
Channel 7.
Nilon v Bezzina
*Multiple sufficient causes
Where two or more tortfeasors have materially contributed to the plaintiff’s
injuries, the plaintiff does not need to determine the exact amount of
contribution. The onus is on the plaintiff to prove that both defendants
contributed materially to the injuries.
Intervening causes:
Liability for consequences of intervening causes judges according to remoteness.
The test for the casual chain is foreseeability. Human act does not break chain if
it is foreseeable.
Chapman v Hearse – intervening act may break casual chain but third party
intervention did not break the casual chain as the negligent driving of Hearse
was reasonably foreseeable
Additional causes:
When two accidents occur, D1’s liability does not stop at the second accident.
Vicissitudes principle – takes into account factors which would have happened
(this relates to damages! – from Nilon v Bezzina)
SGIC v Oakley
3 circumstances of negligence:
1. P suffers second injury which would not have occurred but for D1’s
negligence, D1 is liable for both injuries
2. P suffers second injury which would have occurred even if P is in good
health, but is an exacerbation of the first injury, D1 is liable for
aggravation, D2 liable only for that which is solely attributable to
second injury
3. P suffers second injury which would have occurred even f P is in good
health, then treated as separate with no link between two injuries. D1
is responsible for first, D2 is responsible for second injury
Proportionate liability
S 28 – 33 CLA
s 28
(1) Does not cover for personal damages
(3) Covers for property damage, economic loss etc
s 29 Definitions
s 30 Who is a concurrent wrongdoer – several concurrent wrongdoers
s 31 Proportionate liability
a) Liability of defendant is proportionate having regard to the extent of
the defendant’s responsibility
b) Can’t exceed 100% rule
s 32 Onus of parties to identify all relevant parties
s 32A Contribution not recoverable from concurrent wrongdoer
A concurrent wrongdoer cannot be required to contribute to the damages
recoverable from another concurrent wrongdoer for the apportionable
claim
Defences
Defences are raised after liability is found.
1. Volenti non fit injuria – voluntary assumption of risk
S 14
Rebuttable presumption is that if the risk is an obvious risk, the plaintiff is
taken to be aware of the risk (general type of risk, not particular risk). The onus
is on the plaintiff to prove on the balance of probabilities, that they were not
aware of the risk.
-
Complete defence at common law and CLA
Must establish:
a) Full knowledge and appreciation of the risk being run and its extent
b) Risk accepted freely
2. Contributory negligence
s 23 a) apply concepts of breach from s 9 to determine if P is guilty of
contributory negligence
s 24 A court may decide a reduction of 100% if this is ‘just and equitable’
having regard to P’s share of the responsibility for the damage.
Effect: same as volenti in that it is a complete defence
Plaintiffs are guilty when they fail to take precautions against foreseeable
risk. The defendant must show that:
1. Plaintiff behaved negligently
2. The damage suffered was partly the result of P’s own negligence
3. Dangerous recreational activity
s 17, 18, 19
Fallas v Mourlas
Two issues:
1. Whether the activity was a dangerous recreational activity, that is, did
it involve a ‘significant risk’?
2. Was there a materialization of an ‘obvious risk’?
Ipp J
Yes, it was a dangerous recreational activity as there was a significant risk
of being shot while in the vehicle as the men were entering, existing and
being in the vehicle with guns.
No, the risk was not obvious given Fallas’ repeated assurances to Mourlas.
Held: dismiss appeal, Fallas negligent
Tobias J
Yes, it was a dangerous recreational activity.
Yes, the risk was obvious given the conduct of the Fallas such as fiddling
with the gun. Mourlas was aware that Fallas’ reassurances were
unreliable and this would be apparent to the reasonable person.
Held: appeal allowed
Basten J
No, the evidence in court did not establish that it was a significant
recreational activity.
Yes, it was an obvious risk regardless of previous circumstances.
4. Illegality
Complete defence.
Question is the extent to which P should be penalized because P was
acting illegally at the time.
Factors in determining application of illegality as a defence
1. Statutory purpose
Where illegality consists of a breach of statutory duty or regulation,
the question is whether the statute, as a matter of interpretation, was
intended to deprive the party in breach of it a civil remedy.
2. Coherence
Would allowing the plaintiff to bring an action affect the coherence in
law? Would it be inconsistent or promote incoherence if the claim was
allowed?
e.g. The reasons for making the failure to have a licence illegal were
not adversely impacted by allowing a civil claim for negligence by
those injured while driving without a licence
5. Effects of Intoxication on DOC
s 46 Duty and standard of care is owed regardless of whether the plaintiff
was intoxicated
s 47 (2) Presumption of contributory negligence if person who suffers
harm is intoxicated.
(4) Unless proven otherwise, damages are reduced by at least 25%
s 48 Presumption of contributory negligence if person who suffers harm
relies on care and skill of person known to be intoxicated.
(4) Unless proven otherwise, damages are reduced by at least 25%
s 49 Additional presumption for motor vehicle accident
If plaintiff was a passenger in a motor vehicle driven by an intoxicated
defendant, then the reduction in 48 (4) changes to a minimum of 50%
Damages for Person Injury
CLA s 50 – 61 apply to person injuries only
 Damage v Damages
Harrington v Stephens
If you don’t have a legally recognizable damage, then you cannot have a duty of
care.
‘Damage’ – loss or suffered by the plaintiff
‘Compensatory damages’
 Fundamental principle of damages – the once and for all rule
Lump sum payment so that the plaintiff can’t come back to continually
commence actions. The plaintiff is entitled to be put back in the position he/she
had been in had the tort not been committed. At the same time, the defendant
shouldn’t pay more than it can be fairly said P lost.
Types of damage called heads of damage
Difficulties with lump sum payments:
 Inability to predict future events/circumstances
 Lump sum is discounted to take account of vicissitudes
 Where deterioration of further injury is likely, the best a court can do is to
try and assess the chance that it may occur and award damage would
have occurred if it did
 Pecuniary losses
Loss of earning capacity rather than loss of earnings
 Non-pecuniary losses
Pain and suffering – lump sum, subjective
Loss of amenities – loss of enjoyment of life during the rest of the injured
person’s expected lifetime
Loss of expectation of life – amount is small and conventional, compensate for
the loss of the prospect of a predominantly happy life
*No standard across Australia regarding non-pecuniary losses
Malec v J C Hutton
Assessment of damages for future or potential events
The court assess the degree of probability that an event would have occurred, or
might occur and adjust its award of damages to reflect the degree of probability.
Held: the Appellant was entitled to damages for pain and suffering on the basis
that his neurotic condition was the direct result of the respondent’s negligence.
Those damages had, however, to be reduced to take account of the chance that
factors, unconnected with the respondent’s negligence, might have brought on a
similar neurotic condition.
Appellant is entitled to compensation for the care and attention provided by his
wife – but this was also discounted because harm might have occurred anyway.
CLA
S 50 – personal injury damages
S 51 – definition of general damages
S 54 – cannot award exemplary, punitive or aggravated damages
S 55 – when earnings cannot be precisely calculated
S 59 – Gratuitous services
S 60 – Assessment by the court of injury scale
S 61 – calculation of general damages
Limitations
If time has run out, then the action is statute barred.
There is a time limit. In order to calculate time limit, we must known the time
beings to run.
Torts that are actionable per se – limitation period beings when act is done
Torts that are action on the case (e.g. negligence) – limitation period beings to
run when damage occurs
Limitations of Actions Act 1974 (Qld)
S 10 1 a
Period of limitation for commencement of an action for a tort other
than person injury (6 years)
S 11
Period of limitation for commencement of an action in tort for
personal injury (3 years)
Extension
Extensions are granted in cases where the plaintiff can provide a good
explanation for not having commenced action and it would not be unfair on the
defendant. Queensland v Stephenson
S 29
S 30
S 31
S 33
Extension in cases of disability
Interpretation section for s 31 – 34
Ordinary Actions
Prior bar ineffective
When the period is extended, the expiration limitation has no
effect
S 40
Contribution between tortfeasors
(1) An action for contribution under the Law Reform Act 1995,
section 6(c) shall not be brought after the expiration of the
first of the following periods to expire—
(a) a period of limitation of 2 years running from the date
on which the right of action for contribution first accrues
to the plaintiff or to a person through whom the plaintiff
claims;
(b) a period of limitation of 4 years running from the date of
the expiration of the period of limitation for the
principal action.