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TORTS FINAL EXAM
SEMESTER 1 – 2005
Mark: D - 75/100
Q1A: Mark – 37/50
Tristan v Richard
Liability for 1. broken legs 2. Brain Damage
Duty
Was Tristan one of a reasonably foreseeable class of plaintiffs? (Chapman v Hearse).
There is no recognisable established duty relationship between Tristan and Richard,
however it is reasonably foreseeable that Tristan as a bushwalker under Richard’s
leadership was part of a class of plaintiffs exposed to a reasonably foreseeable risk of
injury (a physical injury relating to activity). Sullivan v Moody suggests more is required
than just reasonable foreseeability. As the trip leader, Richard had sufficient control over
the bushwalkers (Agar v Hyde), as they were within his immediate care. Although it may
be argued that the negligence here of not putting branches or not warning of the risk of
the cliff was an omission, Richard arguably had an assumption of responsibility over his
party and thus had a duty.
In determining the scope of this duty, the duty of care extended to safeguarding against
the type of harm (physical injury by falling off cliff) (Peabody Fund v Sir Lindsay
Parkinson Pty Ltd).
Prima facie, duty exists. However CLA provides possible limitation on this. S5 J-L states
that a defendant will not be liable for harm suffered from obvious risks of dangerous rec.
activities, even if plaintiff not aware of risk. It is unlikely that bushwalking in a group
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under skilled leadership is a “dangerous” recreational activity.
A duty is owed
Breach
For breach of duty to be established, the risk must have been foreseeable (s5B(1)(a)) and
not insignificant (s5B(1)(b)). Given that the risk was a previously recognised risk as
Richard had taken steps in the past to avert risk, these factors are satisfied. Wyong
provides less stringency than this to satisfy foreseeability, so no issue finding it here.
In determining whether a reasonable person would have taken steps to avert risk,
s5B(1)(c) requires one to consider:
a) Probability of harm occurring:
As the cliff is close to the campsite and it is a dark night, it is highly
probable that without a warning or barrier, probability of harm is high.
Nagle suggests someone who owes a duty must take account for
possibility that someone to whom duty is owed may fail to take care for
safety. Therefore, high probability.
b) Seriousness:
Falling of a 10m cliff can lead to serious injury.
c) Burden of taking precauations
Richard need only have warned walkers of risk or moved some branches
to act as a barrier, or perhaps chosen safer campground. The fact it was
late and he was tired are not reasonable excuses here. [Contrast Romeo]
d) Social Utility
Only social utility is enjoyment of walkers (view) this is not sufficiently
significant.
A reasonable person in a bushwalking leader’s position would have taken account of
these factors and taken steps to avert risk. Therefore, breach of duty exists.
Causation: Broken Legs
‘But for’ Richard’s negligent act of not warning of risk, or creating barrier, the injury
would probably not have occurred (s5D(1)(a) CLA). Discussion of the common sense
approach is not required for the broken legs.
Brain Damage:
‘But for’ Richard’s negligent act, the brain damage would not have occurred as there
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would be no need for rescue. Further discussion taking the common sense approach is
required (March v Stramare). It is clearly reasonably foreseeable that a rescue by
helicopter would have to occur if a walker was injured. The negligence of a rescuing
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party is not a novus actus (i.e. Dr Cherry in Chapman v Hearse). However, the sudden,
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Habery] Meaning that Richard would not be liable for Tristan’s brain damage.
strong wind gust may be a novus actus, as it is an act of God (case?). [Coincidence 
[Canterbury]
It may however be held that it was reasonably foreseeable that a rescue helicopter may
crash in performing such a rescue, therefore not acting as a novus actus. [i.e. within risk
created by R’s neglig]
Remoteness:
The type of harm suffered by Tristan – i.e. some sort of further injury during rescue is
reasonably foreseeable (Wagon Mound 1). The fact that the manner of incurring harm
(i.e. by helicopter crash) may be insignificant (Versic v Connors). Remoteness is
probably not as useful as causation in this instance. It is enough to say it was reasonably
foreseeable that further injury from rescue may occur.
Defences:
Assumption of Risk:
S5F-G CLA provies that the plaintiff is assumed to be aware of an obvious risk. Onus
would lie on Tristan to prove, on balance, that he was not aware of risk (s5G(1)).
Otherwise Richard not liable for not warning per s5H CLA. s5H provides that Richard
did not owe a proactive duty to the plaintiff to warn of an obvious risk. The question then
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must be answered, was the cliff an obvious risk? This is likely as the views exists
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Richard may have defence of obvious risk. Though this would only mean he is not liable
(suggesting they were on a mountain/cliff, and campsite is next to cliff. Therefore,
for failure to warn of risk – may still be liable for not placing barrier.
[Cont. Negligence Defence?]
------------------------Q1B: Mark – 13/15
Isolde v Richard
Liability for post-traumatic stress disorder (PTSD).
Duty
A duty is owed to Isolde firstly for the same reasons as duty owed to Richard (assumption
of responsibility) with following difference: foreseeable risk is mental harm. s30 of CLA
provides that a P may recover damages from pure mental harm where the P witnessed the
injury to Tristan, or is a close family member of Tristan per s30(5).
Isolde did not visually witness the injury, but she heard his screams and saw the victim
immediately after injury – this may/may not amount to ‘witness’?
√
She is probably not a close family member – depends on definition of spouse under
Property (Relationships) Act 1984 – she had only been with Tristan for 4 weeks. To
recover, must therefore have ‘witnessed’ accident (see discussion above) – if witnessed,
she will be able to recover for her illness of PTSD if it is a recognised psychiatric illness
(s31), and if s32 is satisfied as such:
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S32 reqs.
Richard ought to have foreseen that if someone’s boyfriend was severely injured (actually
initially thought to be dead by Isolde), if they were a person of normal fortitude, they
might suffer psychiatric illness, if reasonable care not taken. This can be established
utilising circumstances of case per s32(2).
a) – the mental harm was suffered as result of sudden shock = Yes – scream, and
then ‘bloodied and battered’ body
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b) – witnessed injury = See discussion above re: ‘witness’
c) – Nature of relationship = boyfriend/girlfriend. Therefore close r/ship
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d) - Pre-existing r/ship = leader with trust infused in him for safety of group
Duty for mental harm thus owed
Breach: As per Tristan v Richard [CF Annets] Therefore, breach found.
Causation: ‘But for’ negligence of Richard, mental harm not suffered. No further
discussion required.
Remoteness:
Mt Isa Mines v Pusey provides that mental disturbance will be foreseeable in this
instance and immaterial to extent of disturbance. Therefore harm to Isolde not remote.
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Defences:
Contrib negligence: Was Isolde contributorily negligent by going to look for Tristan?
Caterson v Commissioner for Railways suggests no:
Isolde was put in a position of inconvenience – i.e. worried about boyfriend, due to
Richard’s negligence. The degree of inconvenience must be weighed against the risk
taken. It is therefore not negligent for Isolde to go looking for boyfriend and see if he is
OK – instinctive and moral human action.
Intoxication: If still drunk whilst harm incurred, possible defence of intox: However,
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s50(2) may void this defence as mental harm still likely to occur without intoxication.
Intoxication did not contribute to harm occurring.
Therefore can recover for mental harm.
Q1C: Mark – 11/15
Isolde v Richard
Brain damage due to suicide attempt due to boils due to mental harm.
Duty: Previously discussed
Breach: Previously discussed
Causation:
‘But for’ test is satisfied – but for Tristan’s negligence, Isolde would not have suffered
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boils and suicide / brain damage. Further discussion via common sense approach is
required (March v Stramere).
Novus Actus: Voluntary human action
Haber v Walker found that the mental state of the P deprived them of the ‘choice’ to
attempt suicide. As only the initial injury need be foreseeable (Stephenson v Waite
Tileman) [Is this relevant to factual causation?], the fact that the suicide attempt (and
subsequent brain damage) was due to a skin condition that arose at end of mental
condition, is insignificant. Causation thus satisfied. The question must be asked whether
the suicide  brain damage was too remote a consequence of Richard’s actions. This
requires remoteness discussion.
Remoteness:
Is mental impairment a type of harm reasonably foreseeable due to negligence? (Wagon
Mound 1). There is no need to foresee the precise sequence of events (Nadar) and
plaintiff muts be taken as found (Kavagnah v Akhtar – eggshell skull principle). This
suggests therefore that although one would not expect someone to attempt to commit
sucide or develop boils after mental harm and thus develop brain damage, it is
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foreseeable using eggshell skull that in experiencing mental harm due to injury of
boyfriend, mental impairment may result. This conclusion is however too remote and
therefore brain damage too remote a consequence. Therefore no recovery. [I agree with
conclusion, but a little more needed on remoteness]
Q2
Mark: 14/20
Caps & Limitations placed on heads of damages under Part 2 of CLA and their
justification
There are several limitations and caps placed on damages under CLA, introduced in an
effort to curb the litigation crisis, avoiding situations where defendants have to pay
excessive amounts to a plaintiff.
For future pecuniary damages, there is firstly a cap of 3x the average weekly earnings for
past and future economic loss via loss of earning capacity. (s12(2). This would appear to
be justified as it seems fair that a defendant would usually not be aware of the
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circumstances of a particular plaintiff and would thus be severely disadvantaged if forced
to pay large damages for someone with excessively high earnings, compared to someone
with average earnings (as D usually never knows who P is or how much they earn).
There is a 5% discount rate applied to take into account interest rate and inflation.
(s14(2)). Although the calculation of this is unclear to us from CLA, it seems reasonable,
as takes into account fact that $1 now is worth more than $1 in the future. [But at what
rate?]
Limitation exists on provision of gratuitous attendant care services, whereby care must be
provided for a certain amount of time (s15). This seems justifiable as cost of care for
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plaintiff is nought: Damages based in this instance on fact that damages are for P’s loss,
not cost.
There is a cap on damages for non-economic loss of $350 000 (s16) and a limitation
whereby damages only provided for min. 15% severity - whereby 1% of $350K provided,
then increases on a sliding scale to reflect more severe damages. This is justified as a
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method of placing cap on indeterminate liability and reflects fact that it is often difficult
to put a monetary value on non-economic loss such as pain & suffering, loss of
enjoyment in life and loss of amenity.
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There are no longer exemplary, punitive & aggravated damages awarded under CLA
(s21). This is justified by fact that the aim of torts is to compensate the victim for relevant
harm, not punish the defendant.