LAW EXTENSION COMMITTEE - TORTS
SUMMER SESSION 2005-06
ASSIGNMENT TWO: Q 1 – COMMENTS
ISSUE
(a) Mrs
Council
Yes
Graham
–v-
No
COMMENT
Application of the CLA:
 Student should make reference to an assumption of injury or
commencement of proceedings on or after 20/3/02: s.2 CLA

Onus of proof:
s.5E plaintiff bears onus of proof


Compensation to Relatives Act 1897:
Possible claim, if only for the funeral expenses; s.3 (2).
Parents may sue: s.4

Vicarious liability:
Council vicariously liable for the negligence of its employees whilst in
the course of their employment: Deaton –v- Flew, s.7 Law Reform
(Vicarious Liability) Act 1983 & s.3 of the Employees Liability Act
1991.

Duty of care: Compensation to Relatives & Mental Harm Claims
General principles s.5B(1) (refer to the difference between “not farfetched or fanciful” in Shirt, compared with “not insignificant” in
s.5B(1)(b))
s.30 (2)(b) “close family member” & s.30 (5) definition of “close
family member” includes parent of the victim
s.32 (which codifies the “normal fortitude” test of Tame –v- State of
NSW)
[see below re ss.41 & 42 CLA re duty of care of public authorities]




Breach of duty:
s.5B(2) (comment that s.5B(2)(a) to (c) equate to the first 3 elements of
the Shirt Calculus but s.5B(2)(d) is arguably narrower ie. “social
utility”)


Causation/Damage:
s.5D (1) (a) “factual causation”
s.5D (1) (b) “scope of liability” – refer to the definition and the
similarities with to the common law test of remoteness: Wagon Mound
(No.1) & (No.2)
s.31 must be a recognised psychiatric illness

(b) Comments on advice
given to Mrs Graham







Public authority:
No public authority immunity unless provided in the empowering
statute: Sutherland SC –v- Heyman (1985) 157 CLR 424 at 484 per
Brennan J
s.41 CLA defines public authorities, including local councils.
ss.42 (a) to (d) principles – undertake statutory interpretation to refer to
the lack of the words “and” and “or” between each principle. Also, the
Act does not assist in identifying whether one principle is more
important than the others.
David’s failure to disclose allergy:
s.30 (3) allows reduction for contributory negligence of the deceased.
ss.5R (2) (a) & (b) sets out the principles of “reasonable person in the
position of that person” (ie. a reasonable 10 year old boy) and “on the
basis of what that person knew or ought to have known at the time”.
Probable that a Court will find a 10 year old boy ought to have known
about his allergy and perhaps ought to have spoken up.
Unlikely a Court would find 100% contributory negligence under s.5S.
The section uses the word “may” so judicial discretion still exists, and
Wynbergen –v- Hoyts (1997) per Hayne J makes a finding of 100%
contributory negligence unlikely, especially against a child.
s.5T re potential Compensation to Relatives Act claim
LAW EXTENSION COMMITTEE - TORTS
SUMMER SESSION 2005-06
ASSIGNMENT TWO: Q 2 – COMMENTS
ISSUE
Contributory
negligence
Yes
No
COMMENTS
1. Definition:
Cite textbook or legal dictionary of the common law definition.
Also refer to the elements of the defence. For example, Balkin & Davis Law of Torts (3rd edition
2004) at 351 states the defendant must prove:
4. the injury of which the plaintiff complains results from the particular risk to which that
party was exposed by a lack of care;
5. the negligence of the plaintiff contributed to the injury; and
6. there was fault or negligence on the part of the plaintiff.”
s.9 (1) Law Reform (Miscellaneous Provisions) Act 1965 defined contributory negligence, and stated
a claim could not be defeated for contributory negligence.
If applicable, the CLA does not define contributory negligence but does refer to the standard of care
of “the person who suffered harm”: s.5R [see below].
2.
-
-
-
3.
-
Voluntary
assumption of
risk
1.
-
-
2.
-
-
3.
-
4.
-
-
Scope:
Refer to the elements of the defence [see Balkin & Davis (or whichever text the student uses)
elements above].
ss.138 (2) (a) to (d) Motor Accidents Compensation Act 1999 ie. contributory negligence must be
found in certain circumstances:
: also refer to High Court case of Joslyn –v- Berryman re application of s.138 (2) Motor Accidents
Compensation Act 1999
If applicable, s.5R CLA standard of contributory negligence ie. “a reasonable person in the position
of that person” and “determined on the basis of what that person knew or ought to have known at the
time”
s.50 (4) presumption of 25% contributory negligence if plaintiff intoxicated and injury caused by
intoxication
When it can defeat a claim:
Only if s.5S CLA applies. Even then, the Court “may” determine 100% contributory negligence if
“just & equitable”. Therefore, judicial discretion still exists.
100% contributory negligence unlikely to be applied, even within the scope of s.5S, as it does not
make sense if the defendant is found to be liable in the first place: see High Court decision of
Wynbergen –v- Hoyts (1997) per Hayne J (Gaudron, McHugh, Gummow and Kirby JJ agreeing).
Definition:
Common law: volenti non fit injuria = no injury to one who voluntarily consents
Court must find the plaintiff freely and voluntarily, with full knowledge of the nature and extent of
the risk he ran, impliedly agreed to incur it: Letsng –v- Ottawa Electric Ry Co [1926] AC 725 at 731
(PC), citing Osborne –v- London and North Western Ry Co (1888) 21 QBD 220.
Not available for industrial accidents: s.151O Workers Compensation Act 1987 or motor vehicle
accident unless it was in the context of motor racing: s.140 Motor Accidents Compensation Act 1999
“Obvious risk”
s.5F CLA definition.
Comment on the lack of clarity in the definition, especially as s.5F (2) uses the “includes” & (3) &
(4) uses the words “can be”.
Refer to the operation of ss.5G (), & H (no requirement to warn).
Refer to the definitional issues of s.5L (obvious risks of dangerous recreational activities) eg. Swain –
v- Waverley Municipal Council HC transcript of comments by Gleeson CJ (“What about recreational
activities that are dangerous for some people, like people who cannot swim, and not dangerous for
others?”) and Gummow J (“Here we are again, more imperfect law reform”)
Refer to pre-CLA “diving” cases in which the NSWCA considered such activity involved an obvious
risk: see Swain –v- Waverley Municipal Council, Wyong Shire Council –v- Vairy, & Mulligan –vCoffs Harbour City Council, Clarke –v- Coleambally Ski Club Inc
“Inherent risk”:
s.5I (2) CLA definition does not say who is to “exercise diligence & reasonable care” – presumably
the defendant but it is not expressly stated.
S.5I (3) does not exclude liability in connection with a duty to warn of a risk.
Arguably, the references to “obvious risk” made by Whealy J in Mulligan –v- Coffs Harbour City
Council relate more to the definition of inherent risk under the Act.
Distinction between “obvious” and “inherent” risks:
Assuming you can make sense of the definitions of obvious and inherent risks, then put simplistically
one risk is obvious to the plaintiff and the other is not. In either case, the defendant is not liable in
negligence
No duty to warn for an obvious risk: s.5H, whereas a duty to warn remains for an inherent risk: s.5I
(3).