LAW OF TORTS
WEEKEND LECTURE 2A
Lecturer: Greg Young
Contact: greg.young@lawyer.com
NEGLIGENCE
-Duty of care & Breach: Civil Liability Act
-Damage
PURE ECONOMIC LOSS
VICARIOUS/CONCURRENT LIABILITY
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
Torts Law Reform: Stage 1
• The 1st stage aimed both at the
number of claims as well as at
the cost of claims
– restriction of legal advertising, minimising
the promotion of claims and a restriction on
the amount recoverable for legal costs
– capping damages, applying a higher
discount rate to the final lump sum figure,
and the abolition of punitive damages
Torts Law Reform: Stage 2
• The 2nd Stage: reforms include a range of broadbased tort reform measures, including a fundamental
re-assessment of the law of negligence
– addressing the concept of reasonable foreseeability in the law of
negligence;
– protection of good samaritans who assist in emergencies;
– waivers for risky activities;
– statutory immunity for local government; public authorities which fail to
exercise their powers will not breach any duty;
– changing the test for professional negligence to one of 'peer
acceptance';
– abolishing reliance by plaintiffs on their own intoxication; preventing
people from making claims where they were injured in the course of
committing a crime;
– provide a wider range of options for damages; creating a presumption
in favour of structured settlements.
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
THE CIVIL LIABILITY
AMENDMENT (PERSONAL
RESPONSIBILITY) ACT
• Part 1A Division incorporates statutory
reform to the law of negligence in Sections
5A to 5T
• Commenced 6/12/02, except Section 5N
applies to breaches of warranties which
occur after 10/1/03
• 5A scope of application
–The part applies to any claims in negligence
regardless of whether the claim is brought in
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
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
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.
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
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
• Section 5B(1) provides a person is not negligent
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.”
- Is “not insignificant” in Section 5B(1)(b) more
restrictive than “not far-fetched or fanciful” in
Wyong Shire Council v Shirt ?
Part 1A Duty of Care – more
commentary
• 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
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.
Part 5 Liability of Public & Other
Authorities
• Proclaimed on 6/12/02: Sections 40 to 46
• Provides specific additional protection for
public authorities including:
- the Crown
- Government departments
- Local councils
- Other prescribed bodies
Part 5 Liability of Public & Other
Authorities
•
Section 42 sets out the principles to apply in
determining whether a public or other authority has a
duty of care or has breached a duty of care including:
(a) the functions required to be exercised by the authority are limited
by the financial and other resources that are reasonably available
to the authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not
open to challenge,
(c) the functions required to be exercised by the authority are to be
determined by reference to the broad range of its activities (and
not merely by reference to the matter to which the proceedings
relate),
(d) the authority may rely on evidence of its compliance with the
general procedures and applicable standards for the exercise of its
functions as evidence of the proper exercise of its functions in the
matter to which the proceedings relate.
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
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
• 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.
...
• (3) In this section:
carry out road work means carry out any activity in
connection with the construction, erection, installation,
maintenance, inspection, repair, removal or replacement
of a road work within the meaning of the Roads Act
1993.
roads authority has the same meaning as in the Roads
s45 - Porter v. Lachlan Shire Council
• Hodgson JA (Beazley JA & Giles JA agreeing)
• 34 In my opinion, this case does come within s45, on either of two
bases.
35 First, where that part of a road used for pedestrian purposes has
been altered by the installation of a footpath and a gutter, leaving
what may be called a nature strip in between, it is in my opinion an
unduly narrow view of what constitutes a road work to say that, while
the made footpath is a road work and the gutter is a road work, the
nature strip between them is neither a road work nor part of a road
work. In my opinion the better view is that the whole of the area for
pedestrian purposes, comprising the made footpath, the nature strip
and the gutter, comprises a road work.
s45 - Porter v. Lachlan Shire Council
• Hodgson JA (Beazley JA & Giles JA agreeing)
• 36 Second, in any event, where there is a hole in that part of a road
which is a nature strip within the area used for pedestrian purposes,
it would be road work to fill and make good that hole. That view is
not in my opinion precluded by the use of the words “constructed”
and “installed” in the definition of road work in the Roads Act, which,
unlike the relevant definition in s45 of the Civil Liability Act, is an
inclusive definition and not an exhaustive definition. Once it is
accepted that to fill and make good the hole would be road work,
then the question would arise whether failure to do this would be
failure to “carry out any activity in connection with the construction,
erection, installation, maintenance, repair or replacement of a road
work” within s45(3). In my opinion, it would be: although the words
“construction” and “installation”, and the indefinite article “a” in front
of “road work”, could be taken as inapt for the filling and making
good of a hole, on balance I think it would be too narrow an
approach to hold that the words do not extend to such activity.
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.
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 defendant may
have.”
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
Damage in Negligence
Duty of care
Negligence
Breach
Damage
Damage in Negligence
Duty of care
Negligence
Breach
Damage
Damage in Negligence
• Damage is the gist of the action in Negligence
• The scope of actionable damage:
–
–
–
–
property
personal
mental
pure economic loss
• Damage must be actual for compensation; no cause
of action accrues until damage
• Limitations period therefore begin from the time of
the injurious consequences of a conduct not from
when the conduct first occurred
Damage in Negligence
• For P to be successful in an action in
Negligence, D’s breach of duty must
cause damage to P or his/her property
CAUSATION 1
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
CAUSATION 2: 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
Causation – Civil Liability Act
• Section 5D General principles
- (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").
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
THE ‘BUT FOR’ TEST
• But for the D’s conduct, the injury to P
would not have happened:
– Waller v James (Wrongful life – IVF case with
failure to test or advise about the dangers of
the father’s AT3 deficiency)
THE FUNCTION OF THE ‘BUT
FOR’ TEST
• Two functions:
– The primary (negative) function is to assist in
eliminating factors which made no difference
to the outcome
– The second (positive) function: it helps to
identify a condition or a factor which may itself
then be subject to a test of legal causation
THE ‘BUT FOR’ TEST IN THE
HIGH COURT
• Fitzgerald v Penn ( 1954) 91 CLR 268
– ‘Causation is all ultimately a matter of common sense….[It]
is not susceptible of reduction to a satisfactory formula’(per
Dixon, Fullagar and Kitto JJ)
• March v E& MH Stramare (1991) 171 CLR 506*The but
for test gives rise to a well known difficulty in cases where there
are two or more acts or events which would each be sufficient
to bring about the plaintiffs injury. The application of the tests
gives the results, contrary to common sense, that neither is a
cause. The application of the tests proves to be either
inadequate or troublesome in various situations in which there
are multiple acts or events leading to the plaintiff's injury (per
Mason J)
THE ‘BUT FOR’ TEST: IMPLICATIONS
OF A COMMON SENSE APPROACH
• Bennett v Minister of Community Welfare (1992) 176
408
– ‘if the but for ‘ test is applied in a practical common
sense way, it enables the tribunal of fact,
consciously or unconsciously, to give effect to value
judgments concerning responsibility for the
damage. If ..the test is applied in that way, it gives
the tribunal an unfettered discretion to ignore a
condition or relation which was in fact a
precondition of the occurrence of the damages’
THE ‘BUT FOR’ TEST IS NOT
EXHAUSTIVE
• Bennett: ‘ causation is essentially a question
of fact to be resolved as a matter of common
sense. In resolving that question, the ‘but
for’ test , applied as a negative criterion of
causation, has an important role to play but it
is not a comprehensive and exhaustive test
of causation; value judgments and policy
considerations necessarily intrude (per
Mason CJ , Deane and Toohey JJ)
MULTIPLE CAUSES
• Where the injury or damage of which the
plaintiff complains is caused by D’s act
combined with some other act or event, D
is liable for the whole of the loss where it is
indivisible; where it is divisible, D is liable
for the proportion that is attributable to
him/her
MULTIPLE CAUSES: TYPES
• Concurrent sufficient causes
•
•
•
•
– where two or more independent events cause the damage/loss to D
( eg, two separate fires destroy P’s property)
Successive sufficient causes
Baker v Willoughby;
Faulkner v Keffalinos (1971) 45 ALJR 80;
Jobling v Associated Dairies Ltd [1982](dormant
spondylotic myelopathy activated);
• Malec v Hutton [1990] 169 CLR( possible future spinal
condition)
– D2 is entitled to take P (the victim) as he finds him/her
– Where D2 exacerbates a pre-existing loss/injury (such as hasten
the death of P) D2 is liable only for the part of the damage that is
attributable to him
THE ELEMENTS OF
CAUSATION
Causation
Factual
(Causation in fact)
Legal
THE ELEMENTS OF
CAUSATION
Causation
Factual
(Causation in fact)
Legal
LEGAL CAUSATION
• Factual causation in itself is not
necessarily sufficient as a basis for D’s
liability
• To be liable, D’s conduct must be the
proximate cause of P’s injury
• P’s harm must not be too remote from D’s
conduct
REMOTENESS
• The law cannot take account of
everything that follows a wrongful
act; it regards some matters as
outside the scope of its selection. In
the varied wave of affairs, the law
must abstract some consequences as
relevant, not perhaps on grounds of
pure logic but simply for practical
reasons Per Lord Wright Liebosch
Dredger v SS Edison [1933] AC 449
Case Law on Remoteness
• Earlier position in Common Law
– Re Polemis:- the ‘directness element’
• The current position:
– The Wagon Mound (No. 1)
– The Wagon Mound (No. 2)
INTERVENING ACT
• An intervening act breaks the chain of causation and
may relieve D of liability. To be sufficient to break the
chain, it must either be a:
– human action that is properly to be regarded
as voluntary or a causally independent event
the conjunction of which with the wrongful act
in or omission is by ordinary standards so
extremely unlikely as to be turned a
coincidence ( Smith J Haber v Walker [1963]
VR 339
INTERVENING ACT 2
• A foreseeable ‘intervening act’ does not break the
chain of causation
– Chapman v Hearse
• Negligent medical treatment subsequent to negligent
injury would not necessarily remove liability for D1
unless the subsequent injury was ‘inexcusably bad’,
so obviously unnecessary or improper that it fell
outside the bounds of reputable medical practice
– (Mahony v J Kruschich Demolitions)
THE LAW OF TORTS
PARTICULAR DUTY AREAS
(a) Products Liability
(b) Defective Structures
(c) Nervous Shock
(d) Hoteliers/Clubs
(e) Pure Eco Loss
(f) Negligent Misstatement
(g) Liability of Statutory
Authorities
PRODUCT LIABILITY
• Common law:
- Donohue v Stevenson [1932] AC 562
- Grant v Australian Knitting Mills [1936] AC
85
PRODUCT LIABILITY
• Relevant Statutes:
Sale of Goods Act 1923 (NSW)
Pt 4 Performance of the Contract (ss.30 to 40)
Pt 5 Rights of the Unpaid Seller Against the Goods
(ss.41 to 50)
Pt 6 Actions for Breach of the Contract (ss.51 to 56)
PRODUCT LIABILITY
• Relevant Statutes:
- Fair Trading Act (NSW)
Pt 4 Consumer Protection (ss.38 to 40)
Pt 5 Fair Trading (ss.41 to 60, including s.42
Misleading or deceptive conduct and s.44
False representations)
PRODUCT LIABILITY
• Relevant Statutes:
- Trade Practices Act 1974 (Cth)
Pt V Div 1 Consumer Protection (ss.51AF to
65A,
including s.52 Misleading and deceptive conduct)
Pt V Div 2A Actions against manufacturers and
importers of goods (ss.74A to 74L)
Pt VA Liability of manufacturers and importers for
defective goods
DEFECTIVE STRUCTURES
• Professional negligence:
-
s.5O Civil Liability Act 2002 “Peer professional opinion” (ie. The UK
“Bolam” test)
S.5P Civil Liability Act 2002 “Duty to warn” remains (ie. Rogers v
Whittaker)
• Builders:
Bryan v Maloney (1995) ATR 81- 320
• Architects:
Voli v Inglewood Shire Council (1963) 110 CLR
74
DEFECTIVE STRUCTURES
• Councils & Statutory Authorities:
- Pt 5 Civil Liability Act 2002, especially s.42 determining
duty of care and breach of duty in relation to functions, allocation of
resources, range of activities and reliance on general
procedures/applicable standards
- Common law:
Heyman v Sutherland Shire Council (1985) 157 CLR 424
Shaddock v Parramatta CC [No.1] (1981) 150 CLR 424
Parramatta CC v Lutz (1988) 12 NSWLR 293
NERVOUS SHOCK
• What is nervous shock
– An identifiable mental injury recognised in medical terms as a genuine
psychiatric illness.
– The sudden sensory perception that , by seeing hearing or touching – of a
person, thing or event, which is so distressing that the perception of the
phenomenon affronts or insults the plaintiff’s mind and causes a
recognizable psychiatric illness
– It is a question of fact whether it is reasonably foreseeable that the sudden
perception of that phenomenon might induce psychiatric.
• Pt 3 Civil Liability Act 2002 “Mental harm” (ss.27 to
33), especially:
– S.30 Limitation on recovery for pure mental harm arising from shock ie.
Witness at the scene the victim being killed, injured or put in peril, or the
plaintiff is a close family member of the victim
– S.32 Duty of care ie. Defendant ought to have foreseen that a person of
normal fortitude might… suffer a recognisable psychiatric illness if
reasonable care were not taken.
Nervous Shock:The The Nature
of the Harm
• The notion of psychiatric illness induced by
shock is a compound, not a simple, idea. Its
elements are, on the one hand, psychiatric
illness and, on the other, shock which
causes it. Liability in negligence for nervous
shock depends upon the reasonable
foreseeability of both elements and of the
causal relationship between them
• Post-Traumatic Stress Disorder
• Pathological grief disorder
THE VICTIMS
• Primary victims
– What needs to be reasonably foreseeable ? Some personal injury,
physical or psychiatric, to the primary victim
• Page v Smith [1996] 1 AC 155 (HL) a victim of a road accident caused by
another's negligence claimed damages solely for psychiatric illness
• Secondary Victims
– Close relationship
• Jaensch v Coffey
• S.30 Civil Liability Act “Close member of the family” and “spouse or
partner” defined
– proximity/nearness to accident or aftermath
• Bourhill v Young
• Mount Isa Mines v Pusey
Hotelier/Publican to Intoxicated
Patron
• South Tweed Heads Rugby League
Football Club Limited v Cole & 1 Or [2002]
NSWCA 205
• Facts - On the evening of 26 June 1994, Ms Cole was
seriously injured when struck by a motor vehicle driven
by Mrs Lawrence. Ms Cole had been drinking at the
Club’s premises and had consumed a large quantity of
alcohol throughout the day.
South Tweed Heads Rugby League Football
Club Limited v Cole & 1 Or
• Ms Cole arrived at the Club at around 9.30am and
attended a "champagne" breakfast at which free
Spumante was available. When the free supply ceased
Ms Cole and a friend purchased and consumed further
bottles of Spumante. Ms Cole was refused service at the
bar in the afternoon because of her intoxicated state. Ms
Cole stayed at the Club and its surrounds for the day
and was ejected between 5.30 and 6pm for being
intoxicated. The Club had offered to call a taxi for Ms
Cole as well as offering her the use of the Club bus and
driver. One of the men Ms Cole was with had told the
Club manager that he would look after her. At some time
after this Ms Cole left the Club.
South Tweed Heads Rugby League Football
Club Limited v Cole & 1 Or
• Mrs Lawrence's vehicle hit Ms Cole at around
6.20pm. She had been travelling within the
speed limit, it was dark and she had her lights on
low beam at the time of the accident. Mrs
Lawrence's evidence was that she had not seen
Ms Cole until it was too late to avoid the
collision. Ms Cole, who was wearing black
clothing, suffered serious injuries from the
accident and has continuing disabilities.
South Tweed Heads Rugby League Football
Club Limited v Cole & 1 Or
• The trial judge held that Mrs Lawrence had been
negligent in that she had failed to keep a proper
lookout while driving. Her liability for the injuries
suffered by Ms Cole was assessed at 30%. The
Club was also held liable for continuing to serve
Ms Cole when she was intoxicated. The Club's
liability was also assessed at 30%. His Honour
held that Ms Cole had contributed to her
injuries by failing to take reasonable care for her
own safety and assessed that she had
contributed 40% to her injuries.
South Tweed Heads Rugby League Football
Club Limited v Cole & 1 Or
• MVA - Ipp JA (Santow JA & Heydon JA agreeing):
“To a person stationary at the point of impact and facing north, Mrs
Lawrence's vehicle must have been visible for at least 100 metres ...
A vehicle travelling at 70 kilometres per hour travels at 19.4 metres
per second. Therefore, the vehicle must have been visible to Ms
Cole for at least five seconds. It must also have been clearly
audible. Yet it seems that she took no avoiding action. When the
impact occurred, she was on the roadway in front of Mrs Lawrence's
vehicle.
I infer that Ms Cole's grossly intoxicated state was the reason for her
omission to take precautionary measures. This could be the only
explanation for her failure, over a period of five seconds, to avoid the
oncoming vehicle. ...
South Tweed Heads Rugby League Football
Club Limited v Cole & 1 Or
MVA - Ipp JA (Santow JA & Heydon JA agreeing):
“Ms Cole's behaviour was so outside the norm in
failing to move away from the path of Mrs
Lawrence's vehicle that it becomes a matter of
total speculation in attempting to establish what
she was doing shortly before she was seen by
Mrs Lawrence...
I conclude that the evidence was not capable of
establishing facts from which it could properly be
inferred that Mrs Lawrence drove her vehicle
negligently. I would uphold her appeal. ”
South Tweed Heads Rugby League Football
Club Limited v Cole & 1 Or
• Duty of the Club: Ipp JA
“...[T]he source of alcohol she acquired that afternoon is a matter of
mere speculation. There are at least three possibilities. The first is
that Club employees served alcohol to Ms Cole within the building.
The second is that she acquired alcohol from others outside the
building. The third is that she was provided with alcohol purchased
for her inside the building by friends or persons in whose company
she was. In my view, there is no reliable basis whereby a greater
degree of likelihood can be ascribed to any of the three.
Thus, in my opinion, while it was undoubtedly so that, when Ms Cole
left the Club at about 5.30 pm, she was very drunk and had been
drunk long before that time, the evidence was not capable of
establishing on a balance of probabilities that, after the 12.30 pm
bottle, she purchased alcohol from the Club or that the Club
supplied alcohol to her.
South Tweed Heads Rugby League Football
Club Limited v Cole & 1 Or
• Duty of the Club: Ipp JA
“The conclusions to which I have come are determinative
of the Club's appeal. In my view, the Club's appeal
should be upheld on the ground that it was not
established that it committed a breach of the duty of care
found by Hulme J. Nevertheless, as the issues relating to
the scope of the duty of care were touched on in
argument, and as the case may be taken further, I shall
express my views upon those matters and also upon the
consequences of Ms Cole refusing the Club's offer of
safe transport.”
South Tweed Heads Rugby League Football
Club Limited v Cole & 1 Or
• Extension of the duty of care?: Ipp JA:
“In my opinion, the Club owed to Ms Cole only the
ordinary general duty of care owed by an occupier to a
lawful entrant. The scope of that duty should not be
enlarged to an extent that required the Club to cease
serving alcohol to Ms Cole when it knew that it was likely
that she would become intoxicated, or when she was
obviously intoxicated.
In my opinion, as a general proposition, considerations
of personal responsibility, autonomy, practicality and
certainty override those factors such as foreseeability,
proximity, control and vulnerability which have
persuaded some courts, in similar circumstances, to
extend the scope of the general duty of care.
South Tweed Heads Rugby League Football
Club Limited v Cole & 1 Or
• Extension of the duty?: Ipp JA (Santow JA agreeing)
“There may, however, be circumstances which bring
about a different result. For example, it may be that
where a person is so intoxicated as to be completely
incapable of any rational judgment or of looking after
himself or herself, and the intoxication results from
alcohol knowingly supplied by an innkeeper to that
person for consumption on the premises, the scope of
the duty of care of the innkeeper will be extended to
require reasonable steps to be taken for the protection of
the intoxicated person. But Ms Cole's case was not put
on this basis and it is not necessary to deal with the
issue.”
PURE FINANCIAL LOSS
• What is pure economic loss?
– It is generally understood to deal with matters of
tortious liability for loss that is neither consequential
upon death and personal injury of the claiming victim
nor upon the infringement of the victim's property.
• Pure economic loss related to damage to objects
or persons
• 'Pure' pure economic loss by reliance
PURE ECONOMIC LOSS:
EARLY DEVELOPMENTS
• Earlier cases restricted claims for pure economic loss to instances where
misrepresentation was fraudulent or where a duty arose from breach of statute,
contract or fiduciary obligation
– Palsey v Freeman (1789); Norton v Asburton [1914] AC 932
• The policy basis: the fear of imposing liability "in an indeterminate amount for
an indeterminate time to an indeterminate class"
• 1963: Limited recognition of a duty of care for negligent advice leading to
economic loss:
– Hedley Byrne Co Ltd v Heller Partners Ltd
– ‘If someone possessed of a special skill undertakes quite irrespective of
contract to apply that skill for the assistance of another person who relies on
such skill, a duty of care will arise’ per Lord Morris
• 1970: Mutual Life & Citizens' Assurance Co. Ltd. v. Evatt (1970) 122 CLR 628
(The emphasis seemed to be on advice provided by someone possessed of the a
special skill)
NEGLIGENT MISSTATEMENT
•
In general D is liable for negligent advise/information that is provided to P which P
relies and suffers economic loss
– Shaddock v Parramatta CC (House affected by road widening program)
– San Sabatian Pty Ltd v Minister Administering Environmental Planning
(Whether Minister and the Sydney City Council liable for the negligent preparation by
the State Planning Authority and publication by the Council of a redevelopment plan
containing representations in reliance upon which developer had acquired land and
sustained a loss.)
What emerges is that in Australian law, the duty of care in relation to statements
has been extended beyond statements made to a particular person for a
particular purpose and even beyond statements made to a third person for the
known purpose of communication to the person who sustains the loss. There are
circumstances in which the maker of a statement owes a duty of care to a person
who reasonably relies on the statement although the statement was not made to
that person either directly or purposely through a third person.
– Esanda Finance v Peat Marwick: (in reliance upon the audited accounts, the plaintiff
entered into transactions whereby it lent money to companies associated with Excel,
accepting a guarantee from Excel, and purchased debts from Excel. The transactions
resulted in loss to the plaintiff by reason of Excel's financial position.)
THE ISSUE OF SKILL
• With all respect I find it difficult to see why in
principle the duty should be limited to persons whose
business or profession includes giving the sort of
advice or information sought and to persons claiming
to have the same skill and competence as those
carrying on such a business or profession, and why it
should not extend to persons who, on a serious
occasion, give considered advice or information
concerning a business or professional transaction.
(Gibbs J in Shaddock)
THE CONDITIONS
• Special relationship between P and D: such a relationship would
not be found to exist unless, at least, the maker of the statement
was, or ought to have been, aware that his advice or information
would in fact be made available to and be relied on by a
particular person or class of persons for the purposes of a
particular transaction or type of transaction.
• If the representor realizes or ought to realize that the representee
will trust in his special competence to give that information or
advice;
• If it would be reasonable for the representee to accept and rely
on that information or advice;
• If it is reasonably foreseeable that the representee is likely to
suffer loss should the information turn out to be incorrect or the
advice turn out to be unsound."
ADVICE versus INFORMATION
• Although the giving of advice must always
necessarily require an exercise of skill or
judgment, and the giving of information may
not necessarily do so, a person giving
information may be so placed that others can
reasonably rely on his ability carefully to
ascertain and impart the information…
THE ‘CALTEX PRINCIPLE’
•
Property damage may constitute the basis for the claim in
pure economic loss: before Hedley Byrne & Co. Ltd. v.
Heller & Partners Ltd. it appeared to have been
established that a plaintiff who sustained economic loss
which resulted from loss or damage negligently caused to
the property of a third person was not entitled to recover
damages
–
–
–
Caltex v Oil v The Dredge Willemstad
Perre v Apand (1999) (HC) D introduced plant disease onto land
of one farmer in SA by supplying infected seeds for planting;
WA regs prohibited import into WA of potatoes grown within 20
km of land affected last 5 years
Christopher v MV ‘Fiji Gas’
OTHER SITUATIONS OF
PURE ECONOMIC LOSS
• Bryan v Maloney
– It was not open to the trial judge or the Full Court to find that the
owner relied on the builder, or to infer reliance. There was no
evidence that she knew the identity of the builder before deciding to
purchase. Nor was there evidence that she inquired whether the
house had been built by a qualified builder
– The owner can recover damages for pure economic loss only if she
establishes a sufficient relationship of proximity between the builder
and the owner so as to give rise to a duty of care on the part of the
builder not to cause such economic loss
– It is difficult to see why, as a matter of principle, policy or common sense,
a negligent builder should be liable for ordinary physical injury caused to
any person or to other property by reason of the collapse of a building by
reason of the inadequacy of the foundations but be not liable to the owner
of the building for the cost of remedial work necessary to remedy that
inadequacy and to avert such damage
OTHER SITUATIONS OF
PURE ECONOMIC LOSS
• Hawkins v Clayton (Failure to notify
executor of the death of testatrix
substantial fine imposed as a result of
death duties)
• Van Erp v Hill (Failure of solicitor to ensure
that spouse of beneficiary did not witness
execution of will with resultant economic
loss to P)
VICARIOUS RELATIONS AND
AGENCY
• 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 [he who
acts through another, acts in person]
• The agent acts in a representative capacity and
has the authority to act for the principal but is not
necessarily a servant
VICARIOUS LIABILITY
• Vicarious liability makes D (usually
the master/employer) liable for the
torts of another (usually his or her
servant/employee) although the
master is without any blame or fault.
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
– commit the tort in the course of his or her
employment
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
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)
• Articulate Restorations v Crawford
‘IN THE COURSE OF
EMPLOMENT’
• D is liable only if the servant committed
the tort in the course of his or her
employment
– Deaton v Flew
– Morris v Martin