LAW OF TORTS
WEEKEND LECTURE 2A
NEGLIGENCE
Duty of care & Breach: Civil
Liability Act
Damage
IMPACT OF THE CIVIL LIABILITY
ACT ON THE DUTY OF CARE
• The Civil Liability Act 2002 together with the
Civil Liability Amendment (Personal
Responsibility) Act 2002 govern the law of
negligence in NSW.
– The Civil Liability Act 2002 was enacted 28th May
2002 and received assent on 18 June 2002
• Rationale behind the legislation:
– to limit the quantum of damages for personal injury and
death in public liability instances; resultantly lowering
insurance premiums.
– to discourage ‘over litigation’, by the imposition of
restrictions and obligations and responsibilities upon
plaintiffs and counsel
Claims excluded from operation
of the Civil Liability Act: s3B(1)
• a) an intentional act that is done with intent to cause injury or death
•
•
•
•
or that is sexual assault or other sexual misconduct. Note Part 7
does apply to intentional torts done with intent to injure.
(b) dust diseases under the Dust Diseases Tribunal Act 1989
(c) personal injury damages where the injury or death concerned
resulted from smoking or other use of tobacco products
(d) actions governed by Part 6 of the Motor Accidents Act 1988 and
Chapter 5 of the Motor Accidents Compensation Act 1999 except the
provisions that subsection (2) provides apply to motor accidents
(e) Workers Compensation Act 1987, Workers Compensation (Bush
Fire, Emergency and Rescue Services) Act 1987, Workers
Compensation (Dust Diseases) 1942, Victims Support and
Rehabilitation Act 1996 or Anti-Discrimination Act 1977 or a benefit
payable under the Sporting Injuries Insurance Act 1978
Duty of Care
• S 5B:(1) A person is not negligent in failing to take precautions against a
risk of harm unless:
– (a) the risk was foreseeable (that is, it is a risk of which the person
knew or ought to have known), and
– (b) the risk was not insignificant, and
– (c) in the circumstances, a reasonable person in the person’s position
would have taken those precautions.
• (2) In determining whether a reasonable person would have taken
precautions against a risk of harm, the court is to consider the following
(amongst other relevant things):
– (a) the probability that the harm would occur if care were not taken,
– (b) the likely seriousness of the harm,
– (c) the burden of taking precautions to avoid the risk of harm,
– (d) the social utility of the activity that creates the risk of harm.
Duty of Care – commentary
• Section 5B(1) provides a person is not negligent
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unless… (b) the risk was not insignificant.
Wyong Shire Council v Shirt (1980) 146 CLR 40:
risk must be “real” in the sense that a
reasonable person would not “brush it aside as
far-fetched or fanciful.”
It is unclear whether “not insignificant” in
Section 5B(1)(b) is more restrictive than “not
far-fetched or fanciful” in Wyong Shire Council v
Shirt
Duty of Care – s.5B(1) & (2)
• Waverley Council v Ferreira [2005] NSWCA 418
• Facts
– 15 December 2000 12 yr old boy died when he fell to the
ground through a skylight in the roof of a building
known as the Community Centre in Kimberley Park
- The boy was throwing a soft dart with a friend and
mistakenly threw it onto the roof. He gained access to
the roof by climbing a mesh fence attached to the
building and undergrowth. The fence and undergrowth
made it relatively easy for children to climb onto the
roof. The fence had no utilitarian purpose as it had a
gate without a lock.
s.5B(1)(a) - Waverley Council v
Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 34 The initial element to be determined under s5B(1) is whether the risk
•
was foreseeable. As s5B(1)(a) makes plain, that involves inquiring whether
the risk in question is one of which the defendant knew or ought to have
known. The relevant risk in relation to the removal of the fence and
undergrowth was the risk that children might use the fence and
undergrowth to facilitate their access to the roof and, when on the roof,
might fall to the ground.
35 There can be no doubt that the Council knew or ought to have known
that children frequently climbed on to the roof of the Community Centre.
Children playing at the park were often seen on the roof. Mr Ferreira said
that he saw children on the roof “sometimes twice a week”. Martin’s friend,
Dima, said that on a few occasions he himself had climbed onto the roof.
Some of Dima’s friends had also climbed on to the roof as had other
children. A witness testified that “maybe weekly you could see at least one
person up there”.
s.5B(1)(a) - Waverley Council v
Ferreira
• Ipp JA (Spigelman CJ & Tobias JA
agreeing)
39 It was reasonably foreseeable that, once on the roof, a
boy might be attracted to the skylight and stand on it or
otherwise in some way rest his weight upon it.
• 41 ... Irrespective of whether the Council knew or ought
to have known of the condition of the skylight it was
reasonably foreseeable to the Council that a child who
climbed on to the roof might come to serious harm by
falling to the ground. Such a fall might be caused by an
infinite variety of circumstances, impossible to identify in
advance.
s.5B(1)(a) - Waverley Council v
Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 43 In my opinion, the relevant risk of injury was
that a child such as Martin might fall to the
ground once he had climbed on to the roof. In
my opinion, that was a foreseeable risk in terms
of s 5B(1)(a). It was a risk of which the Council
knew or ought to have known. It is immaterial
that the Council might not have been able to
foresee the precise mechanism that caused
Martin to fall.
Duty of Care
5C Other principles
In proceedings relating to liability for negligence:
(a) the burden of taking precautions to avoid a risk of harm
includes the burden of taking precautions to avoid similar risks
of harm for which the person may be responsible , and
(b) the fact that a risk of harm could have been avoided by doing
something in a different way does not of itself give rise to or
affect liability for the way in which the thing was done, and
(c) the subsequent taking of action that would (had the action
been taken earlier) have avoided a risk of harm does not of
itself give rise to or affect liability in respect of the risk and
does not of itself constitute an admission of liability in
connection with the risk.
Assumption of risk
Injured persons presumed to be aware of obvious
risks
5G Injured persons presumed to be aware of
obvious risks
(1) In determining liability for negligence, a person who suffers harm
is presumed to have been aware of the risk of harm if it was an
obvious risk, unless the person proves on the balance of
probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the
person is aware of the type or kind of risk, even if the person is
not aware of the precise nature, extent or manner of occurrence
of the risk.
s5G – Obvious Risk
• Falvo v Australian Oztag Sports Association & Anor
•
[2006] NSWCA 17 (2 March 2006)
The plaintiff injured his knee while playing Oztag (touch
football) on the defendant council's field. The field had
several sandy patches where the council had ‘topped up'
wear to the grass and the injury was suffered when the
plaintiff stepped in one of these. Ipp JA, in his leading
judgment, upheld the trial judge's finding that the field
was in a fit condition and that the defendant was not
liable. He found that the risk from the condition of the
field was one substantially similar to many other fields
used for amateur sport, and that the risk was obvious to
all.
s5G – Obvious Risk
• Eutick v City of Canada Bay Council [2006] NSWCA 30 (3 March
2006)
• The plaintiff was a pedestrian who tripped over the ridge of a gully
or depression in a roadway. In the leading judgment, Campbell AJA
held that the risk was ‘very obvious', as part of the ‘normal
incident[s] of life', and that it did not pose a significant risk. This
was held to be the case in spite of the fact of the injury and the
amount of traffic on the roadway, which was said to have added to
the risk. His Honour held the defendant council was entitled, having
regard to ‘the obviousness of the risk, and the limited nature of the
hazard posed by it, to expect that the exercise of reasonable care
for their own safety by pedestrians would obviate the need for any
further response' to the risk.
• His Honour added that s5(1)(b) CLA put the onus of proving that
‘the risk was not insignificant' on the plaintiff, and that she had not
discharged this.
Assumption of risk
5H No proactive duty to warn of obvious risk
(1) A person ( "the defendant" ) does not owe a duty of care to
another person ( "the plaintiff" ) to warn of an obvious risk to the
plaintiff.
(2) This section does not apply if:
(a) the plaintiff has requested advice or information about the risk
from the defendant, or
(b) the defendant is required by a written law to warn the plaintiff
of the risk, or
(c) the defendant is a professional and the risk is a risk of the
death of or personal injury to the plaintiff from the provision of a
professional service by the defendant.
(3) Subsection (2) does not give rise to a presumption of a duty to
warn of a risk in the circumstances referred to in that subsection.
Assumption of risk
5I No liability for materialisation of inherent
risk
(1)A person is not liable in negligence for harm
suffered by another person as a result of the
materialisation of an inherent risk.
(2)An "inherent risk" is a risk of something
occurring that cannot be avoided by the
exercise of reasonable care and skill.
(3)This section does not operate to exclude
liability in connection with a duty to warn of a
risk.
s5I – Inherent Risk
• Lormaine Pty Ltd v Xuereb [2006] NSWCA 200
• The NSW Court of Appeal has held that a shipowner was
liable for a woman's injuries when she was washed from
the bow by a ‘rogue wave'. One of the defences raised
by the shipowner was that the waves were an inherent
and obvious risk of dolphin-watching. However, the
shipowner was unable to prove that the risk was obvious
because the brochure had given the impression of a
gentle cruise. Also, the ship's presence in a known ‘wave
zone' meant that the risk was avoidable, not inherent.
The woman's damages were reduced, however, because
the trial judge had not considered pre-existing conditions
and the plaintiff had failed to alleviate the symptoms by
losing weight.
Recreational activities
5M No duty of care for recreational activity
where risk warning
(1) A person ( "the defendant" ) does not owe a duty of care to
another person who engages in a recreational activity ( "the
plaintiff" ) to take care in respect of a risk of the activity if the risk
was the subject of a risk warning to the plaintiff.
(2) If the plaintiff is an “incapable person”, the defendant may rely on
a risk warning only if:
(a) the incapable person was under the control of or accompanied
by another person (who is not an incapable person and not the
defendant) and the risk was the subject of a risk warning to that
other person, or
(b) the risk was the subject of a risk warning to a parent of the
incapable person (whether or not the incapable person was under
the control of or accompanied by the parent).
Recreational activities
5M No duty of care for recreational
activity where risk warning
(10)The fact that a risk is the subject of a risk warning
does not of itself mean:
(a) that the risk is not an obvious or inherent risk of an
activity, or
(b) that a person who gives the risk warning owes a
duty of care to a person who engages in an activity to
take precautions to avoid the risk of harm from the
activity.
Recreational activities
5N Waiver of contractual duty of care for
recreational activities
(1) Despite any other written or unwritten law, a term of a contract
for the supply of recreation services may exclude, restrict or
modify any liability to which this Division applies that results from
breach of an express or implied warranty that the services will be
rendered with reasonable care and skill.
(2) Nothing in the written law of New South Wales renders such a
term of a contract void or unenforceable or authorises any court
to refuse to enforce the term, to declare the term void or to vary
the term.
Recreational Activities – Trade
Practices Act
• Recreational Activities – Sections 5J to N
- The NSW Govt could not exclude the
operation of the Trade Practices Act 1974,
although the Federal Govt has done so by
passing The Trade Practices Amendment
(Liability for Recreational Services) Act
2002 proclaimed on 19/12/02
Recreational activities
5L No liability for harm suffered from
obvious risks of dangerous recreational
activities
(1) A person ( "the defendant" ) is not liable in
negligence for harm suffered by another person
( "the plaintiff" ) as a result of the
materialisation of an obvious risk of a dangerous
recreational activity engaged in by the plaintiff.
(2) This section applies whether or not the
plaintiff was aware of the risk.
s5L – Dangerous Recreational
Activities
• Fallas v Mourlas [2006] NSWCA 32 (16 March 2006)
• The plaintiff was holding a spotlight from a vehicle, while others
shot the kangaroos. He was accidentally shot by the defendant
when the defendant tried to unjam his weapon, despite having
given the plaintiff assurances that the weapon was not loaded. The
defendant argued it was an obvious risk in the course of a
dangerous recreational activity (s5L CLA).
• The court held unanimously (Ipp JA, Tobias JA and Basten JA) that
spotlighting was a ‘dangerous recreational activity'. Ipp JA and
Tobias JA held that for the risk to be ‘significant' (s5K) it ‘must have
been a somewhere between a trivial risk and a risk likely to
materialise'. Ipp JA held that in determining whether a recreational
activity was dangerous involved particularising and segmenting the
activity where necessary.
• The court held by majority (Ipp JA, Basten JA) that the risk that
eventuated was not an ‘obvious risk' (s5F) in the course of a
dangerous recreational activity because of the defendant's
assurances that the gun was not loaded. It therefore ruled in favour
of the plaintiff.
Professional negligence
Sections 5O & 5P
• “Peer professional opinion” (or Bolam) test for
determining the appropriate standard of care
• Rogers v Whitaker (1992) 175 CLR 479
– Cases involving a risk of injury or death arising from a
professional service, community standards and other
considerations may be applied by the court in
determining the appropriate standard of care to be
exercised.
Professional negligence
5O Standard of care for professionals
(1) A person practising a profession ( "a professional" )
does not incur a liability in negligence arising from the
provision of a professional service if it is established
that the professional acted in a manner that (at the
time the service was provided) was widely accepted in
Australia by peer professional opinion as competent
professional practice.
(2) However, peer professional opinion cannot be relied on
for the purposes of this section if the court considers
that the opinion is irrational
Mental harm
27 Definitions
In this Part:
"consequential mental harm" means mental harm that is a
consequence of a personal injury of any other kind.
"mental harm" means impairment of a person’s mental condition.
"negligence" means failure to exercise reasonable care and skill.
"personal injury" includes:
(a) pre-natal injury,
(b) impairment of a person’s physical or mental condition, and
(c) disease.
"pure mental harm" means mental harm other than consequential
mental harm.
Mental harm
• 30 Limitation on recovery for pure mental
harm arising from shock
(1) This section applies to the liability of a person ("the defendant”) for
pure mental harm to a person ("the plaintiff") arising wholly or
partly from mental or nervous shock in connection with another
person ("the victim") being killed, injured or put in peril by the act
or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental
harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed,
injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim. (eg
Waverley Council v Ferreira [2005] NSWCA 418)
Mental harm
32 Mental harm—duty of care
(1) A person ("the defendant") does not owe a duty of
care to another person ("the plaintiff") to take care not
to cause the plaintiff mental harm unless the defendant
ought to have foreseen that a person of normal
fortitude might, in the circumstances of the case, suffer
a recognised psychiatric illness if reasonable care were
not taken.
Codifies the common law test for foreseeability of risk of
mental harm in Tame v NSW; Annetts v Australian
Stations Pty Ltd [2002] HCA 35
Mental harm
33 Liability for economic loss for consequential
mental harm
A court cannot make an award of damages for economic
loss for consequential mental harm resulting from
negligence unless the harm consists of a recognised
psychiatric illness.
Part 1A Duty of Care – more
commentary
• Recreational Activities – Sections 5J to N
- Issues of concern:
Is the commercial incentive for the safe
provision of recreational & commercial activities
gone?
What real bargaining power do consumers have
in negotiating a contractual waiver?
Definition of recreational activity is broad and
ambiguous.
Parts 8 & 9 Good Samaritans &
Volunteers
• Proclaimed on 6/12/02: Sections 55 to 66
• Parts 8 & 9 operate to protect Good
•
Samaritans and volunteers.
Section 58: no protection if the Good
Samaritan is under the influence of alcohol,
impersonating a police officer or falsely
representing that they have skills or expertise
in providing emergency assistance.
Parts 8 & 9 Good Samaritans &
Volunteers
•
•
Section 60: Defines community work to mean work
that is not for private financial gain and that is done for
a charitable, benevolent, philanthropic, sporting,
educational or cultural purpose. It excludes community
service orders imposed by a court.
Section 61: No civil liability for a volunteer doing
community work but does not extend to criminal acts,
acts whilst intoxicated, a volunteer failing to exercise
reasonable care and skill, actions outside the scope of
the charitable organisation or contrary to instructions,
where the volunteer is required by State law to be
insured or motor vehicle accidents.
Breach of Duty – General
Principles
• Wyong Shire Council v Shirt (1980) 146 CLR 40 per
Mason J:
“In deciding whether there has been a breach of the
duty of care the tribunal of fact must first ask itself
whether a reasonable man in the defendant’s position
would have foreseen that his conduct involved a risk of
injury to the plaintiff… If the answer is in the affirmative,
it is then for the tribunal of fact to determine what a
reasonable man would do… The perception of the
reasonable man’s response calls for a consideration of
the magnitude of the risk and the degree of the
probability of its occurrence, along with the expense,
difficulty and inconvenience of taking alleviating action
and any other conflicting responsibilities which the
Breach of Duty – Civil Liability
Act
• Civil Liability Act does not apply to claims excluded by
Section 3B (eg. dust diseases, use of tobacco
products, worker’s compensation…)
• Section 5B(2) In determining whether a reasonable
person would have taken precautions against a risk
of harm, the court is to consider the following
(amongst other relevant things):
– (a) the probability that the harm would occur if
care were not taken,
– (b) the likely seriousness of the harm,
– (c) the burden of taking precautions to avoid the
risk of harm,
– (d) the social utility of the activity that creates the
risk of harm.
s.5B(2) - Waverley Council v
Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 45 The matters set out in s5B(2), in substance, are a reiteration of
Mason J’s remarks in Wyong Shire Council v Shirt (1980) 146
CLR 40 at 47-48. ...
• 51 Section 5B(2) provides a framework for deciding what
precautions the reasonable person would have taken to avoid the
harm and involves weighing the factors set out in ss5B(2)(a) and (b)
against those in ss5B(2)(c) and (d) (subject, of course, to each
being applicable in the particular circumstances of the case).
• 52 In my opinion, the probability as to whether a reasonable person
would have taken precautions against a risk of harm (referred to in
s5B(2)(b)) must be considered objectively by reference to the
particular circumstances of the case (and the state of mind of the
defendant is not relevant to this inquiry).
s.5B(2) - Waverley Council v
Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 53 ... s5B(2)(a) requires consideration to be given to the
•
objective probability of harm occurring if care were not
taken. In my view, there was a reasonable possibility of
harm occurring if the fence and undergrowth were not
removed and children were not prevented from using
the fence or the undergrowth as a stepping stone to
gain access to the roof. By s5B(2)(a), this possibility
must be taken into account.
54 The likely seriousness of the harm, should the risk
materialise, was severe injury or death (s 5B(2)(b)) (that
is, in consequence of falling from the roof to the
ground).
s.5B(2) - Waverley Council v
Ferreira
• 55 Garling DCJ found that the fence served no
practical purpose and in my view he did not
thereby err. There was a gate in the fence and
the gate had no lock. It would not have been
difficult to climb over the fence. There is nothing
to suggest that there was a reason to retain the
undergrowth. Both the fence and the
undergrowth served no apparent utilitarian or
aesthetic purpose and the burden of removing
them would have been small (s 5B(2)(c)).
s.5B(2) - Waverley Council v
Ferreira
• 56 I have already mentioned that s5B(2)(d) (the
•
social utility of the activity that creates the risk
of harm) is not relevant in this case.
57 Weighing the factors set out in ss5B(2)(a)
and (b) against those in s5B(2)(c), I conclude
that a reasonable Council would have taken the
precautions of removing the fence and the
undergrowth and Garling DCJ did not err in so
holding.
Breach of Duty – Likelihood of
Injury
• Section 5B(2)(a) the probability that the
harm would occur if care were not taken
• Bolton v Stone [1951] AC 850
Breach of Duty – Seriousness of
Risk
• Section 5B(2)(b) the likely seriousness of
the harm
• Adelaide Chemical & Fertilizer Co. v
Carlyle (1940) 64 CLR 514
• Paris v Stepney Borough Council [1951]
AC 367
Breach of Duty – Cost of
Avoiding Harm
• Section 5B(2)(c) the burden of taking
precautions to avoid the risk of harm
• Caledonian Collieries Ltd v Speirs (1957)
97 CLR 202
Breach of Duty – Utility of the
Act of the Defendant
• Section 5B(2)(d) the social utility of the
activity that creates the risk of harm.
• South Australian Ambulance Transport
Inc. v Walhdeim (1948) 77 CLR 215
Proof of Negligence - General
• CIVIL LIABILITY ACT 2002 – s.5E:
Onus of proof
- In determining liability for negligence, the
plaintiff always bears the onus of proving,
on the balance of probabilities, any fact
relevant to the issue of causation.
Holloway v McFeeters (1956) 94 CLR 470
Proof of Negligence – Res Ipsa
Loquitor
• “The action/thing speaks for itself”
• Nominal Defendant v Haslbauer (1967)
117 CLR 448
[1] GENERAL:CAUSATION
Duty of Care
breach
causation
damage
= Negligence
There must be a causal link between D’s
breach of duty and damage to P or P’s property
Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd (The Wagon Mound 1)
• The facts:
• The rule: the replacement of ‘direct’ cause
(Re Polemis )with reasonably foreseeable’
• It is not the hindsight of a fool, but the
foresight of a reasonable man which alone
can determine liability (per Viscount
Simonds)
CAUSATION: THE ELEMENTS
• Causation involves two fundamental
questions:
– the factual question whether D’s act in fact
caused P’s damage: causation-in-fact
– Whether, and to what extent D should be
held responsible for the consequences of his
conduct: legal causation
CLA s5D
• (1) A determination that negligence caused
particular harm comprises the following elements:
– (a) that the negligence was a necessary condition of the
occurrence of the harm ( "factual causation" ), and
– (b) that it is appropriate for the scope of the negligent
person’s liability to extend to the harm so caused (scope
of liability" ).
• (4) For the purpose of determining the scope of
liability, the court is to consider (amongst other
relevant things) whether or not and why
responsibility for the harm should be imposed on
the negligent party.
THE ELEMENTS OF CAUSATION
Causation
Factual
(Causation in fact)
Legal
CAUSATION-IN-FACT
• Causation in fact relates to the factor(s) or
conditions which were causally relevant in
producing the consequences
• Whether a particular condition is sufficient to
be causally relevant depends on whether it
was a necessary condition for the occurrence
of the damage
• The necessary condition: causa sine qua non
CAUSATION
• To be successful in a claim for a remedy,
P needs to prove that the loss for which
he/she seeks compensation was caused in
fact by the D’s wrongful act
• Traditionally, the test whether D’s
wrongful act did in fact cause the loss is
the ‘but for’ test
Kavanagh v Akhtar
• Facts:a Muslim woman who was physically injured
while shopping was forced by the medical condition
she had to then cut her previously long hair…
Husband rejects her causing her to suffer
depression
– In any event, the possibility that a person will desert a
partner who has been disfigured in the eyes of the
deserter is sufficiently commonplace to be foreseeable
(Per Mason J)
• It was not necessary that the defendant should
have foreseen the precise nature of the
consequences of his act. In the present case, the
plaintiff’s psychiatric illness was foreseeable
Chapman v Hearse; Jolley V Sutton
• The place of intervening acts in causation
• Jolley v Suttton
– P then aged 14, sustained serious spinal injuries in an accident.
It arose when a small abandoned cabin cruiser, which had been
left lying in the grounds of the block of flats, fell on Justin as he
lay underneath it while attempting to repair and paint it. As a
result he is now a paraplegic.
– D held liable; what must have been foreseen is not the precise
injury which occurred but injury of a given description. The
foreseeability is not as to the particulars but the genus.
INCREASE IN MATEARIAL RISK
• M’Ghee v National Coal Bd (1972) 3 All ER 1008
– The P claimed employer’s failure to provide showers to wash away
residue caused his dermatitis - the doctors were not certain if
showers would have stopped the plaintiff contracting dermatitis D
held liable but mainly on policy grounds
• Wilsher v Essex Area Health Authority (1988):
– a premature baby negligently received an excessive concentration
of oxygen and suffered retrolental fibroplasia leading to blindness.
However the medical evidence demonstrated that this can occur in
premature babies who have not been given excessive oxygen, and
there were four other distinct conditions which could also have been
causative of the fibroplasia
– M’Ghee distinguished on the grounds that there was only one causal
candidate (brick dust)
The Law of Torts
Particular Duty Areas:
Product Liability
Abnormal Plaintiffs
Unborn Children
Liability for Defective Products:
The Scope
• Product liability as a regime for protecting
consumer rights:
– Defective structures/premises (as products?)
– Consumer goods as products
The Difficulties with Implied
Warranties
• Warranties do not ‘run’ with goods. It is simply an
•
•
element of the contract and does not therefore
attach to the goods as such
There is generally no ‘ vertical privity’ between the
manufacturer and the ultimate consumer let alone
between wholesalers and the ultimate consumers
Privity of contract ‘remained a recalcitrant obstacle
to the extension o warranties between the
manufacturer and the ultimate consumer ‘
(Fleming)
The Act of the Defendant
• Negligent design of product
– O’Dwyer v. Leo Buring [1966] WAR 67
• Negligence in the manufacturing process:
– Grant v. Australian Knitting Mills
• Negligent Marketing of a Product
– Adelaide Chemical & Fertilizer Co
V. Carlyle
• Failure to warn of dangers or proper use
Norton Aust. Pty Ltd V. Steets Ice Cream Pty Ltd
The Unborn Child
• In general, a duty of care may be owed to P
before birth
– Watt v. Rama: “the possibility of injury on birth to
the child was… reasonably foreseeable…On the
birth, the relationship crystallised and out of it
arose a duty on the D…”
– X v. Pal: Duty to a child not conceived at the time
of the negligent act
– Lynch v. Lynch: Mother liable in neg to her own
foetus injured as result of mother’s neg driving.
Wrongful Birth Claims
• Claims by parents in respect of the birth of a child
who would not have been born but for the D’s
negligence.
– Vievers v Connolly (1995) 2 Qd R 325 (Mother of disabled
child born bec. Pl lost opportunity to lawfully terminate
pregnancy. Damages included costs for past & future care
of child for 30 years.)
– CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost
opportunity to terminate pregnancy as a result of D’s neg
failure to diagnose pregnancy. NSW Ct of Appeal held claim
maintainable but damages not to include costs of raising the
chills as adoption was an option.
– Melchior v Cattanach [2001] QCA 246 Mother of healthy
child after failed sterilization procedure. Qld CT Appeal held
damages shld include reasonable costs of raising the child.
Wrongful Life Claims
• Claim by child born as a result of negligent
diagnosis by D of child’s parent.
• Bannerman v Mills (1991) ATR 81-079.
Summary dismissal of claim by child born with
disabilities as result of mother having rubella
whilst pregnant. Tort of wrongful life unknown
to common law
Wrongful Life Claims
• Edwards v Blomeley; Harriton v Stevens; Waller v
James (2002 ) NSW Supreme Court, Studdert J.


No duty of care to prevent birth
Policy reasons -
– 1. Sanctity & value of human life
– 2. impact of such claim on self-esteem of disabled persons
– 3. exposure to liability of mother who continued with
pregnancy
– 4.Plaintiffs’ damage not recognizable at law - would involve
comparison of value of disabled life with value of nonexistence
– 5.Impossibility of assessment of damages in money terms taking non-existence as a point of comparison.
CLA Part 11 s71
• In any proceedings involving a claim for the birth of a
child to which this Part applies, the court cannot award
damages for economic loss for: (a) the costs associated
with rearing or maintaining the child that the claimant
has incurred or will incur in the future, or (b) any loss of
earnings by the claimant while the claimant rears or
maintains the child. (2) Subsection (1) (a) does not
preclude the recovery of any additional costs associated
with rearing or maintaining a child who suffers from a
disability that arise by reason of the disability.
Defective Premises
• In general the occupier of premises owes
a duty of care to persons who come on
to the premises
• While the notion of occupier's liability
may have developed initially as a
separate category of tort law, it now
considered under the general principles
of negligence
– Zaluzna v Australian Safeway Stores
The Liability of Public
Authorities
Introduction: Public Authorities
and the Rule of Law
• Applying the same rules of civil liability to
the actions of public authorities or
corporation:
– The rationale: No legal or natural person is
above the law
– The difficulties: The nationalization and
provision of public utilities and community
facilities necessarily distinguish public
corporations from ordinary citizens
76
Some Basic Concepts:
‘Feasance’
• In tort law D is liable for a breach of duty
towards P
• The breach may take the form of an act
(misfeasance) or an omission (non
feasance)
• However not every non-feasance provides a
basis for liability:
– Negligent omissions are actionable.
– Mere/’neutral’ omissions are not actionable
unless the D is under a pr-existing duty to act
78
Some Basic Concepts: Powers
and Duties
• Duty:
– The obligation to act; the statutory
provision/function is cast in mandatory
terms
– Once the content of the duty is
determined, the question of breach is a
question of fact
– Breach duty attracts liability
79
Basic Concepts: Power
• Power:
– The statutory function is cast in permissive
terms
– It confers on the power holder a choice to act
in a particular way
– The failure or refusal to exercise a choice may
not necessarily be illegal.
– The power holder has a freedom of choice to
act/ The duty holder has an obligation to act
80
The Planning & Operational
Dichotomy I
• Planning decisions
– Are based on the exercise of policy options or discretions
– They may be dictated by social or economic
considerations
– not provide the basis for a duty
• In general, a public authority is under no duty of care in
relation to decisions which involve or are dictated by
financial, economic, social or political factors or
constraints
82
The Planning & Operational
Dichotomy II
• Operational decisions
– The implementation of policy decisions
– subject to the duty of care
-
Australian Approaches to the
Liability of Public Authorities
• Sutherland Shire Council v Heyman:
Majority: Mason, Brennan & Deane JJ
– in general no duty to exercise statutory powers
– duty will arise where authority by its conduct
places itself in a position where others rely on
it to take care for their safety.
– duty arises where D ought to foresee a) Pl.
reasonably relies on D to perform function
AND b) P will suffer damage if D fails.
84
Australian Approaches to the
Liability of Public Authorities
• Parramatta City Council v. Lutz: Maj
of NSW Court of Appeal: Kirby P &
McHugh JA
– D held liable P because P had “generally
relied” on council to exercise its
statutory powers.
– “I think… that this Court should adopt
as a general rule of the common law the
concept of general reliance
85
Australian Approaches to the
Liability of Public Authorities
• Pyrenees Shire Council v. Day Maj: Brennan, CJ,
Gummow, Kirby, JJ
– -rejected concept of General Reliance (too vague,
uncertain, relies on “general expectations of
community”)
– (Only McHugh, Toohey, JJ approved and applied
concept of General Reliance)
– Brennan, CJ: No specific reliance by P here Duty
arises where “Authority is empowered to control
circumstances give rise to a risk and where a
decision not to exercise power to avoid a risk would
be irrational in that it would be against the purpose
of the statute.
86
Mis-feasance and NoneFeasance: Highway Authorities
• The traditional position in Common Law:
– Highway authorities owe no duty to road users to repair or keep
in repair highways under their control and management.
– Highway authorities owe no duty to road users to take positive
steps to ensure that highways are safe for normal use.
• It is well settled that no civil liability is incurred by a road
authority by reason of any neglect on its part to construct,
repair or maintain a road or other highway. Such a liability
may, of course, be imposed by statute. But to do so a
legislative intention must appear to impose an absolute, as
distinguished from a discretionary, duty of repair and to
confer a correlative private right. (per Dixon J in Buckle v
Bayswater Road Board): See also Gorringe v. Transport
87
Comm.
Misfeasance and non-Feasance:
Common Law Developments
• Brodie v. Singleton Shire Council
• Ghantous v. Hawkesbury City Council
88
The Civil Liability Act (NSW) and
Public Authorities
Part 5 of the Civil Liability Act (Sections 40 to
46)
• Section 42 sets out the principles to determine duty
of care exists or has been breached (ie. financial
and other resources reasonably available, allocation
of resources, broad range of its activities, and
compliance with the general procedures and
applicable standards)
89
Part 5 Liability of Public & Other
Authorities
• Section 43: an act or omission by an
authority does not constitute a breach of
a statutory duty, unless the act or
omission so was unreasonable in the
circumstances that no authority having
the functions in question could properly
consider the act or omission to be a
reasonable exercise of it function.
Part 5 Liability of Public & Other
Authorities
• Section 44: Removes the liability of public
•
authorities for failure to exercise a regulatory
function if the authority could not have been
compelled to exercise the function under
proceedings instituted by the Plaintiff.
Section 45: Restores the non-feasance
protection for highway authorities taken away
by the High Court in Brodie v Singleton Shire
Council Council; Ghantous v Hawkesbury City
Council (2001) 206 CLR 512
45 Special non-feasance protection for
roads authorities
• (1) A roads authority is not liable in
proceedings for civil liability to which this Part
applies for harm arising from a failure of the
authority to carry out road work, or to consider
carrying out road work, unless at the time of
the alleged failure the authority had actual
knowledge of the particular risk the
materialisation of which resulted in the harm.
•
S45 – Hwy Immunity
• Porter v. Lachlan Shire Council [2006] NSWCA
126
• The appellant suffered a fractured right ankle when he
•
accidentally put his foot into a hole in the nature strip
between the made footpath and the gutter of a street in
Condobolin.
The primary judge held that, but for s45 of the Civil
Liability Act 2002, he would have found the Council liable
on the ground that it should have known about the hole;
but he was not satisfied that the Council had actual
knowledge of it.
s45 - Porter v. Lachlan Shire Council
• Hodgson JA (Beazley JA & Giles JA
agreeing)
• 37 On either basis, s45 applies: on the
first basis, the allegation would be that the
respondent failed to maintain a road work,
and on the second basis, it would be that
the respondent failed to construct or
install a road work.
s.45 Actual Knowledge:
North Sydney Council –v- Roman [2007] NSWCA
27
• Ms Roman was injured at night when she fell in a pothole half
a metre wide and about four to five inches deep in Princes
Street, McMahon’s Point on 16 October 2001. She brought
proceedings against the Council, alleging that it had been
negligent in failing to maintain the road by repairing the
pothole. The Council defended the proceedings on the basis
that it did not have actual knowledge of the pothole as
required by s.45 of the CLA. The evidence established that
Council street sweepers regularly swept the gutters in Princes
Street in the vicinity of the subject hole. The street sweepers
were instructed as part of their induction to identify hazards
which needed attention and report them to their supervisor.
Ms Roman argued at trial that the street sweepers’ actual
knowledge of the pothole could be inferred from the
regularity of those duties and from their obligation to identify
hazards which needed attention. She also argued that their
knowledge was attributable to the Council.
s.45 North Sydney Council-vRoman
• Held, allowing the appeal, per Basten JA (Bryson
JA agreeing):
• 1. For the purposes of s.45 actual knowledge must be
found in the mind of an officer within the council having
delegated (or statutory) authority to carry out the
necessary repairs.
• 2. The evidence demonstrated that no Council officer at
a decision-making level had “actual knowledge” of the
particular pothole and therefore the appellant did not
have such knowledge. Accordingly, the exception to s.45
was not engaged and the statutory immunity prevailed.
Per McColl JA (dissenting)
THE LAW OF TORTS
Vicarious Liability
Introduction: Personal Liability
• In tort law liability is generally personal; ie,
liability is generally linked to a breach of one’s
(own) duty
• There are however instances where a party
may be held liable for torts committed by
another: vicarious relationship
102
What is Vicarious Liability
• Liability of D (usually the
master/employer) for the torts of
another (usually his or her
servant/employee) although the
master is without any blame or
fault.
103
Types of Vicarious
Relations: Master Servant
Situations
105
Partnerships
106
Principal and Agent Relations
•An agent acts for the principal; but the liability of the
principal for the act of the agent is not based on
vicarious liability
•The liability of the principal is based on the maxim: qui
facit per alium, facit per se
•The agent acts in a representative capacity and has the
authority to act for the principal but is not necessarily a
servant
107
The Employer-Employee
(Master-Servant) Relations
• An employer is vicariously liable for the
tortuous acts or omissions by his
employee in the course of employment
whether or not such act or omission was
specifically authorised by the employer.
108
SERVANTS AND
INDEPENDENT CONTRACTORS
• Vicarious liability arises only in respect of the torts
•
•
of the servant
The master/employer is therefore responsible only
for the torts of the servant and not the
independent contractor
For the master/employer to be held liable, the
tortfeasor must:
– be a servant, and
– commit the tort in the course of his or her
employment
110
WHO IS A SERVANT?
• A servant is one who is under a contract of service
•
•
•
•
to another an independent contractor is under a
contract for services
The contractor is paid for the job by results rather
than for time spent, receives a fee or commission,
the servant receives wages
The contractor is usually employed on a casual
basis, the servant on a permanent basis
The contractor usually specifies his/her work
schedule and supplies his/her own tools
The master may select the servant for the task
111
WHO IS A SERVANT?:
THE CONTROL TEST
• If the Master controls what the employee does and
•
how it is done, then the employee is a servant. The
relationship will give rise to Vicarious Liability.
– Zuijs v Wirth Bros: The case of the trapeze artist
What is essential is whether there is lawful authority
to command or give directives if there is scope for it.
– Stevens v Brodribb Sawmilling)
112
Limits of the Control Test
• The nature of the service to be
performed is essential in determining
the relationship Stevens v Brodribb
Sawmilling
• “Uncontrollability of a person
forming part of an organization as to
the manner in which work is
performed does not preclude …a
relationship of master & servant”
– Albrighton v PRA Hospital
115
The Evidence of ‘Control’
• Master- servant relationship:
–
–
–
–
Right to have the particular person do the work
Right to suspend or dismiss
Right to exclusive services of person engaged
Right to dictate place of work, hours etc
• Independent contractors:
– A profession or trade or distinct calling of the
contractor
– Provision of own place of work or equipment
– Creation of contractor of goodwill, saleable assets
– Payment of own business expenses
– No deduction from remuneration for income tax
– These factors are not conclusive
116
The Totality of the Relationship
• Hollis v Vabu Pty Ltd : (motor cycle & bicycle couriers) Gleeson
CJ, Gaudron, Gummow, Kirby & Hayne JJ (McHugh & Callinan
dissenting)
• In present case relationship bet. Parties is to be found not only
in the contractual terms but in the system which was operated
thereunder and the work practices imposed
• CONTROL is not now the only relevant factor. The totality of
the rel.ship bet. The parties must be considered
• The couriers were employees because:
–
–
–
–
They did not provide skilled labour
had little control over manner of work
were presented to the public as “emanations” of D
Policy consideration to support vic. liability is deterrence of harm encourages employer to reduce risk of future harm
– D “superintended” couriers’ finances
– supplied own bicycles but capital outlay relatively small - simply
indicates employment conditions favourable to employer
– was considerable scope for control by D - allocation & direction117
of
‘IN THE COURSE OF EMPLOYMENT’
• D is liable only if the servant committed the tort
in the course of his or her employment
• Whether the torts is committed in the course of
employment or not turns on:
– What tasks are authorized
– Whether the employee’s tortuous act so
connected to authorized tasks that it can be
seen as a mode of carrying out the task albeit
wrongfully
– Deaton v Flew
– Morris v Martin
118
‘A Frolic of his/her Own’
• In general the employer is not liable where the employee commits a
torts while on a ‘frolic of his or her own’
• Harvey v O’Dell
– Detour to get more tools & lunch was in scope of
employment
– Not a frolic of their own bec. Employees were paid
subsistence money & not required to take lunch with them
• Petrou v Hatzigeorgiou: Horseplay / practical jokes by
employees may be within the course of employment
– Case about vicarious liab. of partner for tort of another
partner
– Certain amount of horseplay conducive to maintaining good
staff relations
– Fact that act went outside permitted level of horseplay did
not take it outside the course of the business
120