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their good mark.
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TORTS
End of Semester Exam – 2001
Overall Mark 80%
Q1)(a) Mark 56/70
Q1)(b) Mark 8/10
Q2)(b) Mark 16/20
QUESTION 1
Peter has claims against both Elspeth and E.A.C.T. for damages for his injuries. []
Elspeth
As an occupier of land, Elspeth (E) owes a duty of care to anyone coming onto her land
(Australian Safeway Stores v Zaluzna) [] Peter (P) was told he could come into the yard at
anytime. In order for P’s claim to succeed he must demonstrate that it was reasonably
foreseeable to E that he could be injured. That he and E were in a relationship of proximity
and that E failed to act as a reasonable person would with regard to the injury foreseeable to
P.[]
On the facts it seems likely that all these points may be demonstrated. P and E were
neighbours and she had invited him onto her land, therefore proximity is demonstrated. It
also seems likely that P’s injuries would be found to be foreseeable. Jolly v Sutton found that
children were capable of infinite mischief. The advertising campaign by EACT on the danger
of trees/power lines also demonstrates forseeability.[]
A reasonably person may well have trimmed the tree. Elspeth may argue that it was not
practice or possible for her to trim the tree, Caledonian Collieries v Spiers and therefore she
was justified in taking the risk. []
However, even if P’s action against E would be successful, it seems an impractical course to
take, given that as an aged pensioner E is likely to be a poor loss bearer [Home insurance?]
Thus, Peter could combine his action against E and EACT as they would both be concurrently
liable. [] S11(3) of Law Reform (Miscellaneous Provisions Act allows Peter to do this and
makes it more beneficial for him to combine his actions rather than pursue two separate
actions. []
Peter’s claim against EACT
As a statutory authority, EACT are more likely to have liability insurance and will therefore
make better loss bearers. Under S11(4) of Law Reform Miscellaneous Provisions Act, EACT
may, if judgment is found against them, claim a contribution from Elspeth. []
Peter must once again demonstrate all the elements of the tort of negligence for his claim to
succeed. The main problem of this case will be proving EACT
owed him a duty of care []
Duty of care:
Sutherland Shire Council v Heyman held that if P can demonstrate a reliance upon EACT to
keep him safe from danger, then this will establish the necessary proximity of relationship for
EACT to owe P a duty of care. Sutherland held there is no reason a statutory authority
should be found not to have a duty of care under common law when exercising its statutory
power.
The difficult for P’s case here will be that Sutherland Shire also found that there can be no
duty, if the statutory authority omitted to perform its function – in this case the pruning of the
tree – due to policy decisions. [] We are told in the facts that the cessation of tree trimming
by EACT was an efficiency measure. [However, not budgetary but due to 2003
privatisation therefore it is arguably an operational decision. More discussion
required]
However, given the vulnerable nature of P as a child, his reliance upon the authority is likely
to outweigh policy decisions and it seems likely a duty of care will be found to be owed to him
[]
Once duty is found, it seems likely EACT will be said to breach this duty by not trimming the
tree – the failure of which is clearly the cause of P’s injuries. Burns from electrocution are
also a reasonably foreseeable consequence of this type of accident. []
Contributory Negligence:
If P’s claim against EACT is successful, EACT may seek to lower the damages payable by
arguing P was failing to take reasonable care for his own safety, Froom v Butcher. They
(EACT) must prove that P failed to act as a reasonable person would in apprehending the risk
of danger to themselves. []
Kelly v Bega Valley Country Council established that an objective standard of a reasonable
11 year old would be the criteria for judging P’s conduct to be contributorily negligent or not.
If it is found that a reasonable 11-year-old would have known of the dangers and not climbed
the tree, then P may well be found contributorily negligent with regard to his injuries []
Apportionment of Peter’s Damages
Damages payable to P should his claim succeed will be discussed under two headings:
Pecuniary – these will include
Loss of earning capacity – This head of damage is P’s entitlement to recover for any
diminution in his capacity to earn to the extent that this creates a financial loss. This would be
difficult to assess as an 11-year-old child does not yet have an established career path by
which this loss could be measured []
Damages will include earnings for his whole lifespan, rather than his shortened life – although
expenditure on self maintenance would be deducted from these ‘lost years’.[]
Damages will also be reduced for any residual earning capacity Peter has. This may be quite
substantial, as we are told his injuries preclude him from manual work – which may mean he
is quite capable of making a living in another, non-manual field. [] Obviously evidence
would be required with regard to P’s specific talents or abilities. He may have already been a
gifted pianist for example.
A discount of 3% will be deducted from P’s lump sum to account for any benefits derived from
lump sum payment – the idea of damages being to restore P to his original position, rather
than see him making a profit. []
Similarly, an additional 15% will be deducted for vicissitudes of life – although Peter may
argued this should be decreased if any extenuating circumstances – such as particular talents
or abilities apply.
Cost of medical care Would also be payable if the court holds this to be within reason. Thus,
physio, rehab or nursing care [] will be compensated for , but recuperative Polynesian mud
baths may be though excessive! [Why? Sounds good to me!]
Griffiths & Kerkemeyer damages: This would apply if, for example P’s mother gave up work
to care for him. [She suffers from nervous shock. How does this affect damages?]
This need for care is felt to be P’s loss and therefore compensation would be granted. This
would be the replacement cost of the care his Mum provides, not the cost of lost wages to
her. []
Collateral source and replacement cost for services provided by P are unlikely to apply as P is
a child. []
Non pecuniary loss:
Pain and suffering: Skelton v Collins held that this, whilst a subjective measure, must be
reasonable and not rule by emotion. P is likely to recover a substantial amount as he is in
continual pain and awareness of his condition, Sharman v Evans. []
Loss of amenities: This is also judged subjectively and the impact of the injuries on P’s life
taken into account. If he were a talented pianist then it is likely the amount would be higher.
[]
Loss of expectation of life: Generally a nominal, fixed amount for all claimants. This is
because courts do not feel this is a quantifiable thing and that it is something that is
impossible to compensate for.
[This is an excellent answer. You have identified all the major issues – however you
needed to discuss the position of EACT in more detail. Your answer was well
structured and reasoned.]
Jack and Ruby:
Both have a nervous shock claim against both Elspeth and EACT – would more likely pursue
EACT for reasons outlined in Peter’s claims. []
S24 of Law Reform Miscellaneous Provisions Act allows J and R to claim for injury sustained,
if it is a mental injury alone.
S24 of Law Reform Miscellaneous Provisions Act established that J and R have a statutory
course of action as well as an action at common law. []
Under S24 Ruby has an action as P’s mother, despite the fact she did not witness the injury.
[However J may not satisfy the criteria in S24(1)(b)]
Both J and R have a common law claim. For this to succeed the nervous shock must be a
recognisable psychiatric injury and not merely grief. Jaensch v Coffey []
J and R must demonstrate that they both had a relationship with Peter, which they can clearly
do as his mother and brother. Mt Isa Mines v Pusey
Another aspect is the proximity of J and R to P when his injury occurred. Clearly J, in
discovering P so shortly after the injury was proximate to it. Alcock v South Yorkshire Police
[] Even R, coming as she did to the hospital after the event is likely to be held to be
sufficiently in the aftermath of the injury for nervous shock to occur. Jaensch v Coffey[]
J and R must demonstrate that the defendants (Elspeth and EACT) should reasonably have
had them in contemplation as a class of plaintiffs likely to suffer nervous shock, arising from
the negligence. If P’s claim against the defendants succeeds, then it seems likely, given the
family ties between he and J and R that the defendants will be found to have also owed J and
R a duty of care. []
QUESTION 2) b
One of the major criticisms of the trend towards loss distribution is that people are now being
forced to compensate others for accidents in which they played no role. Albeit, this
compensation is generally hidden in higher insurance premiums or increased cost of goods to
offset a companies increasing works compensation or public liability costs. []
Some may see the doing away with fault and the maximisation of distribution as not a
desirable course of actions. The idea of liability based on fault has often been in accordance
with community expectations and concepts of fairness and justice. [] People who wrong
others should be forced to pay or atone. The existence of insurance has meant that many
who are committing wrongs are not paying for their mis-deeds out of their own pockets, but
that of other policy holders. []
Arguments have also been put forth that fault based liability acts as a deterrent and thereby
prevents wrongs being committed. This argument may not be a strong one though, as the
case of Froom v Butcher did not increase the incidence of seat belts being worn.
However, the idea of insurance and loss distribution in its way also accords with community
ideals. For it hardly seems in accordance with fairness and justice to have two vastly different
outcomes for seriously injured plaintiffs dependent upon who their tortfeasors may be. A
plaintiff “lucky” enough to be injured by a negligent wealthy man for example, would be better
compensated than one injured by a penniless university student. []
The idea that premiums for insurance are marginally increased across the board may be
more just than having seriously injured P’s uncompensated. This being so, it seems that
further reform is necessary. Perhaps an abolishment of the “at fault” scheme all together and
the setting up of compensation funds for accident victims – like those in existence for workers
injured whilst at their job. This would have the benefit of being far more equitable – those with
the money/time and inclination to pursue common law claims would not be equal with those
people who cannot afford legal representation.
Further reform to the system would have benefits for the courts as well. Decreasing
congestion in the system and reducing delays in matters coming to trial. [] It would also do
away with the long court delays which many victims find so distressing and which may indeed
by contributing to further injury – that of compensation neurosis. A no fault system would also
do away with the great
[You obviously ran out of time. However this is an extremely well written and insightful
analysis.]