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LAWS1061 – Torts Course Summary
Negligence:
1. Duty of care
2. Breach of duty
3. Causation
4. Remoteness
5. Damages
IRAC:
1.
2.
3.
4.
State Issue
Rule
Application to facts
Conclusion
Go through problem question issue by issue
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Breach of Duty
Breach: failure to act reasonably or to take reasonable precaution
CLA s 5B(2) - Reasonableness of plaintiff’s pleaded precaution depends on:
1. probability of harm occurring
2. likely magnitude of harm
3. burden of the precaution to avoid risk of harm
4. social utility (usefulness) of the activity that creates the risk of harm
USA v Carroll Towing: No breach if cost of precaution > all RF benefits
Wyong v Shirt (1980): cost of precaution against diffuse risk (spread out over many
locations) creates obligation to warn which creates indeterminate liability for similar
risks, hence burden of precaution is too great, so no breach (3)
Romeo v Conservation Commission of NT (1998); Scarf v State of Queensland:
public authorities have same general principles of negligence as private individuals
Paris v Stepney (1951): SOC for plaintiff who has special susceptibility or
vulnerability of which defendant is aware, affected by probability and magnitude of
harm, plaintiff knowingly exposed to greater risk warrants greater protection (1&2)
E v Australian Red Cross (1991): lack of blood testing was not a breach as costs
outweighed benefits (4)
CLA s 5F – Obvious Risk:
1. a “matter of common knowledge”
2. need not be visible
3. can be obvious even though it has a low probability of occurring
4. no need to warn
5. defendant may need to take other precautions
Vairy v Wyong (2005): obvious risk need not be visible, no breach for diffuse risk
Neindorf v Junkovic (2005): no duty to warn about obvious risk
Doubleday v Kelly (2005): Attractive nuisance doctrine – defendant liable if the
injury is caused by a hazardous object under their control that is likely to attract
children who are unable to appreciate the risk posed by the object or condition
CLA s 5L – no liability for harm suffered from obvious risks of dangerous
recreational activities, applies whether or not plaintiff was aware of the risk
CLA s 5I – no liability for materialisation of inherent risk (risk that cannot be
avoided by reasonable care or skill), section does not diminish duty to warn of risk
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Standard of Care imposed
RTA v Dederer (2007): appropriate standard of care for public authorities
- cost v benefits
- reasonable care is not perfect
- consider likely risks not only hindsight
- PAs do not owe higher SOC to reckless/careless people
McHale v Watson (1965): different SOC exists for children, SOC is objective,
standard of care for average 12 year old is considered but no consideration for unique
characteristics
McNeilly v Imbree (2008): Overruled Cook, imposed standard of care of reasonable
person in a situation (objective), does not consider individual idiosyncrasies (not
subjective). Scope of duty is to anyone, whether aware or not of defendant’s
inexperience/lack of skill
Buckley & Toronto v Smith Transport (1946): Mental incapacity is only a defence
when they have:
1. No control over activity; or
2. Cannot tell right from wrong
Roger v Whitaker (1992):
Bolam standard: No liability if defendant acted in accordance with general medical
opinion (or widely accepted practice)
^ Overruled for warnings (not only in medical context) (CLA s 5P)
Doctor has duty to warn if risk is material:
- Objective: If warned about the risk, would reasonable patient attach
significance to it?
- Subjective: Has patient indicated concern about the risk?
CLA s 5O(1) reinstated Bolam except in relation to warnings
S 5O(2) there may be liability if opinion is irrational
CLA s 49 – intoxicated state of person is irrelevant to the existence of duty of care to
the person and standard of care
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Causation
CLA s 5D(1)(a) - But-for test: Would harm have occurred anyway, even if
wrongdoing had not occurred? If yes  no actual causation
S 5D(1)(b), 5D(4) - Scope of liability: extends to harm caused
March v Stramare
Plaintiff’s contributory negligence does not cut off defendant’s liability
Applicable common law:
1. Chapman: Original tort feaser’s (defendant) liability is preserved where
original tort feaser foreseeably exposed the plaintiff to inadvertent negligence
of a 3rd party (or plaintiff’s own inadvertence).
2. “Exploding light bulb” (Haber v Walker): Original tort feaser’s liability is cut
off if independent event such as intentional tort or crime unforeseeably
intervenes.
Haber v Walker (1963)
For intervening act to cut off original tort feaser’s liability, intervening act must be
either 1 or 2:
1. Voluntary human action (intentional), consistent with common law doctrines:
a) Chapman  inadvertent negligence. If plaintiff, due to diminished mental
capacity, involuntarily hurt themselves then under Chapman the liability of
the defendant is preserved
b) Plaintiff has duty to protect him or herself. If plaintiff is mentally unable to
protect himself or herself then the liability of the defendant is preserved.
2. Independent intervening act. Unforeseeable act causes actual harm (e.g.
exploding light bulb, falling tile at hospital) (intervener is solely liable)
Mahony v Kruschich (1985)
Does subsequent negligence (e.g. medical malpractice) cut off liability of defendant
who caused accident that necessitated treatment?
Defendant is liable for the resulting exacerbation as well if:
1. Plaintiff reasonable in seeking treatment
2. Exacerbation of injury reasonably foreseeable consequence of treatment
3. Malpractice must be negligent not reckless or intentional
If someone negligently or recklessly sends someone to hospital and is then exposed to
negligent medical malpractice, the doctor is still liable. Defendant is also liable for
doctor’s malpractice. Baker v Willoughby (1970) supports this decision in different
context.
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Remoteness
Defendant’s conduct must be reasonably related to plaintiff’s harm.
Wagon Mound I (1961)  overruled Polemis:
Reasonable foreseeability is the cornerstone of civil liability. RF evaluated through
perspective of reasonable person in defendant’s position. We consider that a
reasonable person with the qualifications of the defendant to have expert knowledge.
With a small probability of risk an event is still regarded as reasonably foreseeable.
Wagon Mound II (1967):
No RF if:
- Scientific uncertainty
- Intervening tort/crime
- Thought test tells us there is no systemic relationship (Palsgraf)
- Reasonable ignorance of systemic relationship between act and harm (Wagon
Mound I, Doughty v Turner)
We ask ourselves if a reasonable person with the defendant’s qualifications and
training would act accordingly? Question is did you know about the risk no matter
how rare it is (low probability is still RF as long as its not farfetched/fanciful)?
Reasonable ignorance cuts off liability because you were not aware of the risk unless
the risk is similar to a risk that is foreseeable, Tremain v Pike (1969).
Eggshell skull doctrine  foreseeability of the extent of harm is not required, only
foreseeability of a similar harm.
Hughes v Lord Advocate (1963): Attractive nuisance doctrine and also
For reasonable foreseeability, the wrongdoing and the injury must have a systematic
relationship. The injury must be a reasonable consequence of the wrongdoing, it
doesn’t matter what happens in between. Unless there is an intervening tort or crime,
then liability is not imposed.
Jolley v Sutton (2000): Defendant has greater duty to children.
RF that children would be attracted because of the attractive nuisance doctrine, not
an obvious risk to them
NSW CLA states for obvious risks no warning is required but duty may be imposed to
take alternative precautions. For children warnings may be inadequate because it is
reasonably foreseeable that they may ignore warnings.
Eggshell Skull Doctrine
Type of harm is reasonably foreseeable, plaintiff can fully recover, even if extent of
harm is not reasonable foreseeable.
Smith v Leech Brain (1962): Victim can recover for additional harm due to existing
susceptibility, triggered by the original injury. No recovery for harm due to
subsequent events not directly connected to original injury.
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Stephenson v Tileman (1973): Defendant liable under eggshell skull doctrine for first
injury and resulting second injury, if injury 2:
- Due to pre-existing susceptibility; or
- Due to new risk/susceptibility created by first injury; provided
a) Injury one was reasonably foreseeable and negligently caused
b) Injury one triggered injury two (Injury 2 does not need to be reasonably
foreseeable)
Vicarious Liability
Defendant liable for another’s wrongdoing when they were not culpable
CLA s 5Q: reinforces common law
Three conditions required for VL:
1. A legally sufficient relationship between defendant and actual wrongdoer
(Hollis v Vabu)
2. Connection between the relationship and the actual wrongdoer’s act.
(Employer can be held liable if the employee’s actions were within the scope
of the employment relationship or the act was closely connected to what is
authorised as part of the work.)
3. The actual wrongdoer’s act must be wrongful, they must be liable for the harm
caused
Salmond test for “scope of employment”
- Act authorised; or
- Act connected with what is authorised
- Defendant may be vicariously liable even is actual wrongdoer acted in violation of
company policy or directions but still carrying out their duties (Bugge v Brown,
Bazley v Curry).
Deatons v Flew (1949): Courts consider the motivation of the actual wrongdoer.
No VL if the motivation of the actual wrongdoer was a personal grievance, this severs
connection with authorised act
NSW v Lepore; Samin and Rich v Qld (2003): Defendant was not at fault. Sexual
assault was not within scope of employment for actual wrongdoer.
Lister v Hesley (2002): No vicarious liability if employment merely provided
opportunity.
Gummow, Hayne JJ - Vicarious liability requires:
1. Done with intention/motivation to perform duties (Deatons)
2. Actual/apparent authority or some connection to authorised acts
Gleeson J: sexual assault can be part of scope of employment if sufficiently connected
with his/her duties, in this case it wasn’t.
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Non-Delegable Duty
A defendant can delegate tasks to an independent contractor or someone but they
cannot delegate their responsibility to ensure that vulnerable people are not harmed. It
is not a duty to exercise reasonable care but to see that reasonable care is taken.
Burnie Port Authority v General Jones Pty Ltd: (overturned Rylands)
Elements of NDD
1. Defendant has exclusive control over ultra hazardous situation (in control of
premises and the activity/item)  responsibility to take care for plaintiff
2. Vulnerability of plaintiff  (no control, no knowledge and vulnerable to ultra
hazardous act/item)
3. Plaintiff depends on defendant to take reasonable care implied by their
vulnerability
4. Independent contractor is negligent and causes harm to plaintiff, hence defendant
is liable because it was defendant’s NDD to prevent harm to plaintiff
(See also Kondis v STA)
NDD confined to acts of negligence, criminal acts not included (Leppore v NSW,
Introvigne)
Concurrent liability: multiple defendants can be liable for the same harm, e.g.
vicarious liability, non-delegable duty
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Defences to negligence
1. Voluntary Assumption of Risk (complete defence)
a) plaintiff had actual knowledge of risk (subjective, Scanlon), defendant must
prove
b) plaintiff must have appreciated full scope of risk, defendant is not liable if
they are reasonably ignorant of the risk (Red Cross case), but eggshell skull
doctrine applies
c) plaintiff must have acted voluntarily (Williams v Port of Liverpool)
VAR cases: Insurance Commissioner v Joyce (1948), Oran Park v Fleisig
CLA s 5G reinforces VAR as a complete defence, because obvious risks are
voluntarily assumed by plaintiffs
2. Contributory Negligence
CLA s 5R: CN analysed as to principles of ordinary negligence
CN reduces the amount of damages by the injuries that were RF caused by the
plaintiff’s negligence
Caterson v Commissioner for Railways (1973): ‘Agony of the moment rule’
plaintiff is not contributorily negligent where the negligence of the defendant placed
the plaintiff in a ‘sudden emergency’. However, the plaintiff must have been
reasonable in their actions of response.
Mackenzie v Nominal Defendant (2005): plaintiff CN, defendant applied CLA s 5R,
5S getting 100% reduction in damages due to plaintiff’s CN (s 5S)
CLA s 5L: No liability for harm suffered from obvious risks of dangerous
recreational activity. Fallas v Mourlas (2006)
3. Plaintiff’s unlawful conduct
4. Mental Incapacity
Buckley & Toronto v Smith Transport (1946): Mental incapacity is only a defence
when they have:
1. No control over activity; or
2. Cannot tell right from wrong
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Damages
Lim Poh Choo v Camden (1980): Damages are once and for all, one lump sum
payment, however, CLA s 22 allows periodic payment of the lump sum of damages
Burden of proof for loss is on plaintiff
Heads of Damage:
1. Loss (physical or mental), economic loss, intangible loss
2. New needs created
3. Pain and suffering
Pecuniary loss: earning capacity, expenses
Non-pecuniary loss: pain and suffering, loss of enjoyment of life
Special damages: compensates pecuniary loss
General damages: compensates non-pecuniary loss
Economic/Pecuniary Damages:
- Include amount plaintiff has already paid in expenses related to accident Sharman
v Evans (1977)
- Plaintiff’s ‘expected’ loss of earnings, CLA s 13, Sharman v Evans (1977)
a) s 13(1): determine the most likely future earnings (objective - find the mean)
b) s 13(2): adjust for circumstances of the individual, by the percentage
probability of them earning the mean without the injury (subjective – find the
variation)
c) CLA s 13(3): Justify assumptions, Malec v JC Hutton Pty Ltd (1990)
- Limitations:
o amount awarded for gross weekly earnings limited to three times ‘average’
weekly total earnings, CLA s 12(2), figure set by the Australian Statistician,
CLA s 12(3).
o base discount rate is prescribed by regulation, s 14(a), if not, 5% should be
applied, s 14(b), Wynn v NSW Insurance Ministerial Corporation (1995)
o Anything that mitigates plaintiff’s loss because of the injury reduces
damages, Graham v Baker (1961) (e.g. lawyer doesn’t have to buy suits now)
Jobling v Associated Dairies (1982): Vicissitudes (a change of circumstances or
fortune, typically one that is unwelcome) are taken into account by the court when
judging compensation. Vicissitudes are those things/events that would reduce
potential income. Typical discount for vicissitudes is 15%, Wynn v NSW insurance
Gratuitous care: domestic care for an injured plaintiff for which they have not paid
or are not liable to pay for (CLA s 15(1)).
CLA s 15(2): For damages to be awarded for gratuitous care:
-
must be reasonable need for services
need has solely arisen because of injury
services wouldn’t have been provided but for the injury
s 15(3): services provided for at least 6hr/week, for at least 6 consecutive months.
Care is to compensated at market rate for carers, Van Gervan v Fenton (1992).
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Non-Economic Loss, (CLA s 3): pain and suffering, loss of amenities of life, loss of
expectation of life and disfigurement.
Plaintiff’s damages may be reduced if they cannot demonstrate that they experienced
a loss, Skelton v Collins (1966)
Awarding damages CLA (s 16) requires:
-
-
most extreme case to be identified
plaintiff’s injury compared and found as ‘percentage’ of the most extreme case;
and apportion the plaintiff’s damages accordingly, Southgate v Waterford (1990)
maximum for non-economic loss is $450,000, for a most extreme case, s 16(2)
For injuries 0-14% of most extreme case, no damages awarded; 15-33% tables are
used to determine the percentage of a most extreme case to be awarded; and from
34% onward a linear relationship between the percentage of a most extreme injury
and the plaintiff’s injury exists.
Other cases may be used to support the claim for a particular award, s 17A(1).
Qualifications to the Compensatory Principle
Mitigation
 The plaintiff is required to take reasonable care to mitigate his/her loss.
Glavonjic v Foster [1979].
Tax

Awards of damages are considered capital. Hence, while awards for loss
earnings are on a net income basis, past and future care expenses are on a pretax basis, Cullen v Trappell (1980)
Interest
 Interest is not to be awarded for:
o non-economic loss (s 18(1)(a));
o gratuitous attendant care (s 18(1)(b)); and
o loss of a plaintiff to provide gratuitous care (s 18(1)(c)).
 Interest is to be awarded for the period between the injury being incurred and
the court’s determination of damages (s 18(2)(a)), using an interest rate either
set by regulations or the ‘relevant interest rate’, CLA s 18(3), (4)