LAW OF TORTS
Negligence – Duty of Care
Clary Castrission
clary@40k.com.au
How will we cover negligence?
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Duty of Care at common law
Civil Liability Act and Duty of Care
More CLA and Breach of Duty
Damage and Particular Duty Areas
More Particular Duty Areas
Negligence- Duty of Care
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Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
– Proximity and Reasonable Foreseeability v
Incrementalism
• Some interesting applications
– Unborn children and the wrongful life cases
• Legislative reform
NEGLIGENCE AND FAULT IN TORTS
FAULT
INTENTION
NEGLIGENCE
TRESPASS
CARELESS
NEGLIGENCE
the action
NEGLIGENT TRESPASS
• Intentional or negligent act of D which
directly causes an injury to the P or his /her
property without lawful justification
• The Elements of Trespass:
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fault: intentional or negligent act
injury must be direct
injury may be to the P or to his/her property
No lawful justification
NEGLIGENT TRESPASS
• While trespass is always a direct tort, it is not
necessarily an intentional act in every instance. It
may be committed negligently
• Negligent trespass is an action in trespass not in
negligence:
• Where the facts of a case permit, it is possible to
frame an action in both trespass and negligence on
the same facts
• Williams v. Molotin (1957) 97 CLR. 465.
What is Negligence?
• It is the neglect of a legal duty
• Negligence v carelessness
• “The law takes no cognisance of negligence in
the abstract. It concerns itself with carelessness
only where there is a duty to take care and
where failure in that duty has caused damage.”
(Lord MacMillan in D v S)
• Tame v NSW (2002) 211 CLR 317
Negligence: The Elements
Duty of care
Negligence
Breach
Damage
Negligence: The Early Cases
• Heaven v. Pender (1883)
• The dicta of Brett MR:
• whenever one person is by circumstances placed in
such a position with regard to another, that every one
of ordinary sense who did think would at once
recognise that if he did not use ordinary care and skill
in his own conduct with regard to those
circumstances he would cause danger or injury to the
person or property of the other (person) a duty arises
to use ordinary care and skill to avoid such danger.
Donoghue v. Stevenson [1932] AC 562
• Facts
• Understanding the relationships
Donoghue v Stevenson (cont)
• Dicta of Lord Atkin
• The rule that you are to love your neighbour becomes in
law, you must not injure your neighbour, and the lawyer’s
question, who is my neighbour? receives a restricted reply.
You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour. Who then in law is my neighbour? The
answer seems to be persons who are closely and directly
affected by my act that I ought reasonably to have them in
mind to the acts or omissions which are called into
question (at 599)
The Manufacturer’s Duty
• Grant v Australian Knitting Mills (1936)
The application of the rule in D v S
• a manufacturer of products, which he sells in such a form as
to show that he intends them to reach the ultimate
consumer in the form in which they left him with no
reasonable possibility of intermediate examination, and with
the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an
injury to the consumer’s life or property, owes a duty to the
consumer to take that reasonable care
• Baar v Snowy Mountains Hydro-Electric Authority (1970) 92
WN (NSW) 472
What did Lord Atkin mean?
• “What Lord Atkin did was use his general
conception to open up a category of cases
giving rise to a special duty… [The process]
may be described either as the widening of an
old category or as the creation of a new and
similar one. The general conception can be
used to produce other categories in the same
way.”
– Lord Devlin in Hedley Byrne & Co Ltd v Heller & Partners
Ltd [1964] AC 465 (at 524)
Established Categories
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Type of Harm
Type of Defendant
Type of Plaintiff
Manufacturer to consumer
Makers/repairers to users of chattels
Teachers to pupils
Occupiers of land to visitors
Skilled professionals to their clients
Highway workers to highway users
Checking In
• Snails
• Overview of negligence
• Arriving at a Duty of Care
• Categories
_________
• The harder ones:
– Proximity and Reasonable Foreseeability v
Incrementalism
• Some interesting applications
– Unborn children and the wrongful life cases
– Legislative reform
Duty of Care in General
• Where there is physical loss or injury (or an
established category), duty is relatively easy to
identify.
– Rylands v Fletcher (1868) LR 3 HL 330
• Where nature of harm is more difficult to
identify or quantify, it gets tougher.
WHAT HAPPENS WHEN THE DUTY DOES NOT
FIT AN ALREADY EXISTING CATEGORY?
• What is needed is “a conceptual framework that
will promote predictability and continuity and at
the same time facilitate change when it is
needed.” (McHugh J in Perre v Apand (1999))
• Principle v Category
• Principle: Proximity and Reasonable
Foreseeability
• Category: Incrementalism
• There is still “much disorder and confusion”Kirby J Perre v Apand
What is Reasonable Foreseeability?
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Question of identity of the plaintiff:
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Question of law
Is the P reasonably foreseeable (as person
or member of a class of people) likely to be
affected by D’s actions?
Reasonable Foreseeability: Case Law
• Some illustrations
– Palsgraf v. Long Island R.R. Co. (1928
– Chapman v. Hearse (1961)
Reasonable Foreseeability: Established Category
Of Duty of Care
• Wyong Shire Council v Shirt (1980) 146 CLR 40 per
Brennan J:
– risk must be “real” in the sense that a reasonable
person would not “brush it aside as far-fetched or
fanciful.”
• Koehler -v- Cerebos (Australia) Limited [2005]
HCA 15
McHugh, Gummow, Hayne and Heydon JJ (majority):
“The central inquiry remains whether, in all the circumstances, the risk of a
plaintiff … sustaining a recognisable psychiatric illness was reasonably
foreseeable, in the sense that the risk was not far fetched or fanciful” [33]
Needs Something Else…
• Sullivan v Moody (2001) 207 CLR 562
– “The fact that it is foreseeable… that a careless act on
the part of one person may cause harm to another
does not mean the first is subject to a legal liability…”
Proximity
Jaensch v. Coffey (1984)
• (Proximity involves) notions of nearness or closeness and
embraces physical proximity (in the sense of space and
time)…, circumstantial proximity such as an overriding
relationship of employer and employee or of a
professional man and his client, and causal proximity in
the sense of the closeness or directness of the
relationship between the particular act or cause of
action and the injury sustained.” (per Deane at 584-585)
The High Point of Proximity
• Bryan v Maloney (1995) 182 CLR 609
– “A duty of care arises under the common law of this
country only where there exists a relationship of proximity
between the parties with respect to both the relevant class
of act or omission and the relevant damage.” (at 543)
The Main Features of Proximity
PROXIMITY
Degree of proximity
Physical
Circumstantial
Causal
Evaluation
Evaluation
of legal
and policy
considerations of
what is fair
and reasonable
Proximity Criticised
• The High Court has expressed reservations
about the usefulness of the notion of
proximity in recent times
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Sutherland SC v Heyman (1985)
Hill v Van Erp (1997)
Perre v Apand (1999)
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000)
Proximity - Criticised
Sullivan v Moody (2001) 207 CLR 562
• Facts
• Judgment
Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:
[573] “…foreseeability of harm is not sufficient to
give rise to a duty of care”
[578] “The formula is not ‘proximity’.
Notwithstanding the centrality of that concept, for
more than a century … it gives little practical
guidance in determining whether a duty of care
exists in cases that are not analogous to cases in
which a duty has been established”
Incrementalism
• “It is preferable, in my view, that the law
should develop novel categories, rather than
by a massive extension of a prima facie duty of
care restrained only by indefinable
considerations which ought to negative, or
limit the scope of the duty or the class of
persons to whom it is owed.”
• Brennan J in Sutherland Shire Council v Heyman
(1985) HCA
The Anns 2-Stage Test:
The UK Way
• Anns v Merton London Borough Council [1978]
AC 728
• 2-Stage Test (Wilberforce):
– It requires first a ‘sufficient relationship of proximity based
upon foreseeability’;
– and secondly considerations of reasons why there should
not be a duty of care.
Australia Elaborates on Anns
• Jaensch v. Coffey (1984) per Deane J. p587-8
• A duty situation could arise from the following
combination of factors
– A reasonable foreseeability of real risk of injury to P either as an
identifiable individual or a member of a class of persons, and
– The existence of proximity between the parties with respect to the
act or omission
– Absence of any rule that precludes such a duty
The 3-Stage Caparo Test
• Caparo Industries Plc v Dickman [1990] 2 AC
605
– Was damage to P reasonably foreseeable
– Was relationship between P and D sufficiently
proximate, and if so
– Would it be fair, just and reasonable to apply DOC
Perre v Apand (1999) 198 CLR 180
• Facts
• High Court gets the chance to explore the
current state of duty of Care
Gaudron in Perre
• Prox is too ambiguous: “First, proximity as the second
stage in a three stage test has no more content than it
did when it was used as the unifying criterion…”
[Gaudron at 10]
• Too powerful: would prevent incrementalism. Concern
that Caparo would be used in any case, even where
there is an established duty category
• Too troublesome: “Fair, just and reasonable” is
troublesome:- “They are of little use, if they are of any
use at all, to the practitioners and trial judges who
must apply the law to concrete facts arising from real
life activities.” [Gaudron at 12]
Gaudron Concluding
• Need for predictability
– “When legal practitioners are unable to predict the outcome of
cases with a high degree of probability, the choice for litigants
is to abandon or compromise their claims or defences or to
expose themselves to the great expense and unpredictable
risks of litigation.” [Gaudron at 20]
• Incrementalism is best compromise
– “Until a unifying principle again emerges, however, the best
solution is to proceed incrementally from the established cases
and principles.” [Gaudron at 25]
Kirby J
• Look at other jurisdictions
• Reasonable foreseeability falls short, so proximity
has a role to play:
– “If on the other hand, proximity were to be confined to its
original historical purpose as a measure of “nearness and
closeness” between the parties in dispute, it cold yet provide a
meaningful gateway, in addition to reasonable foreseeability of
harm, to afford the starting point for the allocation of a legal
duty of care or exemption from its burden. Then it would remain
necessary to weigh candidly the competing policy considerations
relevant to the imposition of a duty of care.” [Kirby at 24]
Kirby J applying Caparo
• Foreseeability
• Proximity
• Policy
Wrapping up the approaches
The quest for the unifying principle
- Anns 2-Stage Test
- Caparo
Incremental Approach: A compromise
- Brodie v Singleton Shire Council (2001) 206 CLR 512
Checking In
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Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
– Proximity and Reasonable Foreseeability v Incrementalism
----------------------
• Some interesting applications
– Unborn children and the wrongful life cases
• Legislative reform
Interesting Duty Application 1
• The unborn child:
– There can be no justification for distinguishing between the rights…
of a newly born infant returning home with his /her mother from
hospital in a bassinet hidden from view on the back of a motor car
being driven by his proud father and of a child en ventre sa mere
whose mother is being driven by her anxious husband to the
hospital on way to the labour ward to deliver such a child ( Per
Gillard J in Watt v Rama)
- Lynch v Lynch (1991)
- Watt v Rama [1972] VR 353
Unborn Child
• Wrongful life cases
– Harriton v Stephens [2006] HCA 15 (9 May 2006) Appeal dismissed (7
to 1 majority)
– Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing), Hayne J and
Callinan J in separate judgments dismissed the Appeal
– Kirby J dissented
Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [244] “It was not Dr P R Stephens's fault that Alexia Harriton was injured
by the rubella infection of her mother. Once she had been affected by the
rubella infection of her mother it was not possible for her to enjoy a life
free from disability. ... Dr P R Stephens would have discharged his duty by
diagnosing the rubella and advising Mrs Harriton about her
circumstances, enabling her to decide whether to terminate her
pregnancy; he could not require or compel Mrs Harriton to have an
abortion. ”
Harriton v Stephens
• Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
• [249] “It is not to be doubted that a doctor has a duty to advise a mother
of problems arising in her pregnancy, and that a doctor has a duty of care
to a foetus which may be mediated through the mother[403]. However, it
must be mentioned that those duties are not determinative of the specific
question here, namely whether the particular damage claimed in this case
by the child engages a duty of care. To superimpose a further duty of care
on a doctor to a foetus (when born) to advise the mother so that she can
terminate a pregnancy in the interest of the foetus in not being born,
which may or may not be compatible with the same doctor's duty of care
to the mother in respect of her interests, has the capacity to introduce
conflict, even incoherence, into the body of relevant legal principle ”
DUTY TO RESCUE
• There are two separate issues in rescue:
– The ‘duty’ to rescue
– The duty of care owed to the rescuer
• There is no positive legal obligation in the common law
to rescue
– The law does not ‘cast a duty upon a man to go to the aid
of another who is in peril or distress, not caused by him”:
Hargrave v Goldman (`963)
• There may however exist a duty to rescue in master
servant relationships or boat owner and guest
relationships for instance
– Horsley v Maclaren (The Ogopogo) (1971) 22 DLR
• One is only required to use reasonable care and skill in
the rescue
THE DUTY OWED TO RESCUERS
• The rescuer is generally protected : torts recognizes the existence of a duty of
care owed to the rescuer.
• The issue of volenti-non fit injuria: This principle does not seem to apply in
modern tort law to rescue situations.
• ‘The cry of danger is the summons to relief. The law does not ignore these
reactions of the mind.. It recognizes them as normal… and places their effects
within the range of of the natural and the probable [and for that matter the
foreseeable] per Cardozo J in Wagner v International Railway Co. (1921)
– Chapman v Hearse
– Videan v British Transport Commission (1963) (rescue attempt to get a child trespassing on
railway line)
• Rescuers may recover for both physical injuries and nervous shock
– Mount Isa Mines v Pusey (1970)
• The US fire-fighter’s Rule does not apply in Australia and the UK
– Ogwo v Taylor (1988) AC 431
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
Civil Liability Act 2002: Duty of Care
• Statute overrides the common law and that any
negligence claim commenced since 20 March
2002 will be governed by the Civil Liability Act
2002.
• Next lecture, we will consider the application of:
– general duty of care provisions of s.5B;
– situations of obvious/inherent risks under ss.5F to I;
and
– situations of dangerous recreational activities under
ss.5J to N.
The Rationale for Reform
• [I]t's my view that this country is tying
itself up in tape because of over litigation,
a long-term trend to see us litigate for
everything, to try to settle every problem
in our lives...by getting a big cash payment
from the courts....a country as small as
ours can't afford to have the Americanstyle culture of litigation". (Bob Carr)
The Rationale for Reform
• ‘We need to restore personal responsibility and
diminish the culture of blame.That means a
fundamental re-think of the law of negligence, a
complex task of legislative drafting.
There is no precedent for what we are doing, either in
health care or motor accident law, or in the legislation
of other States and Territories.
We are changing a body of law that has taken the
courts 70 years to develop’ (Bob Carr)
The Approach to Reform:
Government’s View
• We propose to change the law to exclude claims that
should never be brought and provide defences to
ensure that people who have done the right thing
are not made to pay just because they have access to
insurance (Bob Carr)
• We want to protect good samaritans who help in
emergencies. As a community, we should be
reluctant to expose people who help others to the
risk of being judged after the event to have not
helped well enough (Bob Carr)
Wrap-Up
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Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
– Proximity and Reasonable Foreseeability v
Incrementalism
• Some interesting applications
– Unborn children and the wrongful life cases
• Legislative reform
TORTS
Civil Liability Act: An Overview of the Duty of Care*
Clary Castrission
Clary@40k.com.au
*Later lectures will focus on other aspects of the Act (viz breach of duty and damages)
Overview for Tonight
• S35
• Duty of Care- s5B
Duty Areas under the CLA
• Risk (will cover in defences)
– Assumption of Risk: ss5F- I
– Recreational Activities: s5J- 5N
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Public Authorities: ss40-46
Good Samaritands: ss55- 58
Volunteers: ss59
Mental Harm: ss27-33
Claims excluded from operation of the
Civil Liability Act: s3B(1)
• (a) civil liability of a person in respect of an intentional act that is done
by the person with intent to cause injury or death or that is sexual
assault or other sexual misconduct committed by the person
• (AND A WHOLE BUNCH OF OTHERS… LIKE DUST DISEASES, SMOKING
ETC)
• See s3B as it lists where CLA and Motor Accidents Compensation Act
1987 overlap
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.
Section 3B V s5B
• Deliberate Act intended to cause harm: s3B
(not covered by act)
• Omission which causes harm: s5B (covered by
the act)
• Deliberate Act without due care NOT intended
to cause harm: Drinkwater v Howarth [2006]
NSWCA 222
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
Wyong Shire Council v Shirt
• Mason J
• “[13] ... when we speak of a risk of injury as being
‘foreseeable’ we are not making any statement as to the
probability or improbability of its occurrence, save that we are
implicitly asserting that the risk is not one that is far-fetched
or fanciful. Although it is true to say that in many cases the
greater the degree of probability of the occurrence of the risk
the more readily it will be perceived to be a risk, it certainly
does not follow that a risk which is unlikely to occur is not
foreseeable.
Duty of Care in Certain Situations
contained in the Act
• Duty Areas
– Risk (will cover in defences)
• Assumption of Risk s5F-I
• Recreational Activities- s5J to s5N
– Public Authorities (ss40-46)
– Good Samaritans (ss55-58)
– Volunteers (ss59-66)
• Mental Harm (ss27-33)
Part 5 Liability of Public & Other
Authorities
• Sections 40 to 46
• Provides specific additional protection for
public authorities including:
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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.
Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270
S45- 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 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.
• (2) Doesn’t create duty of care simply because the roads authority
had actual knowledge of the risk.
• (3) Carry out roadwork defined to include construction, installation,
maintenance, inspection, repair.
• This done to overturn recent HCA decision in:
– Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City
Council (2001) 206 CLR 512
Porter v. Lachlan Shire Council [2006] NSWCA 126
• Facts
S45 (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 roadwork within the
meaning of the Roads Act 1993 .
Roads Act 1993 (dictionary)
"road work" includes any kind of work, building or structure (such as
a roadway, footway, bridge…) that is constructed, installed or
relocated on or in the vicinity of a road for the purpose of facilitating
the use of the road as a road…. and "carry out road work" includes
carry out any activity in connection with the construction, erection,
installation, maintenance, repair, removal or replacement of a road
work.
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.
s.45 Actual Knowledge:
North Sydney Council –v- Roman [2007] NSWCA 27
• Facts
• At Trial
s.45 North Sydney Council-v- Roman
• 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.
• Note McColl JA (dissenting)
Parts 8 Good Samaritans
S56
–
For the purposes of this Part, a "good samaritan" is a
person who, in good faith and without expectation of
payment or other reward, comes to the assistance of a
person who is apparently injured or at risk of being
injured.
s57
–
(1) A good samaritan does not incur any personal civil
liability in respect of any act or omission done or made
by the good samaritan in an emergency when assisting a
person who is apparently injured or at risk of being
injured.
Part 8: Good Samaritans
• S58 where liability not exempted
– Where good samaritan caused the injury in the
first place
– The good samaritan was under the influence of
drugs/alcohol AND failed to take reasonable care
– The good samaritan was impersonating
emergency service worker, policeman or
pretending to have the skills to address the
current injury
Part 9: Volunteers (ss59-66)
• 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.
Volunteers (cont)
• Section 61: No civil liability for a volunteer doing
community work, but does not extend to:
– Criminal acts (s62)
– Acts while intoxicated AND volunteer failing to
exercise reasonable care (63)
– Actions outside the scope of the charitable
organisation contrary to instructions (s64)
– Where the volunteer is required by State law to be
insured (s65)
– Or motor vehicle accidents (s66)
Mental Harm
• At common law- only type of pure mental
harm where this liability is recognised
psychiatric illness
• Thus grief or sorrow doesn’t sound damages:
Mount Isa Mines v Pusey (1970) 125 CLR 383
Mental Harm pre Annetts
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•
•
•
Suffer from a recognised psychiatric illness
Be a person of reasonable fortitude
Be subject to a sudden shock
Have directly perceived the accident or its
immediate aftermath
The 2 major cases
• Both heard together:
– Tame v NSW (2002) 211 CLR 317
– Annetts v Australian Stations Pty Ltd (2002) 211
CLR 317
Affecting Factors
• Was illness result of sudden shock?
– “Cases of protracted suffering, as opposed to ‘sudden
shock’ could raise difficult issues of causation and
remoteness of damage. Difficulties of that kind are
more appropriately analysed with reference to the
principles of causation and remoteness, not through
an absolute denial of liability.” (Gleeson CJ, Gaudron,
Gummow , Kirby and Hayne JJ in separate j’ments)
• Direct perception of distressing events?
• Relationship between primary and secondary
victim
• Relationship between Plaintiff and Defendant
Ipp Report
• “... the law has said that a duty to avoid causing
mental harm would be imposed only in relation
to harm caused by ‘shock’; that this duty was
owed only to persons who were physically near
to the scene of the ‘shocking’ events at the time
they occurred, or who witnessed their
‘immediate aftermath’; and that the duty was
owed only to those who witnessed the shocking
events or their aftermath with ‘their own unaided
senses’.” (138, 9.12)
Ipp Report Continued
• “The fundamental proposition which Tame/Annetts seems
to establish is that reasonable foreseeability of mental
harm is the only precondition of the existence of a duty of
care. It also establishes, however, that a duty of care to
avoid mental harm will be owed to the plaintiff only if it
was foreseeable that a person of ‘normal fortitude’ might
suffer mental harm in the circumstances of the case if care
was not taken. This test does not require the plaintiff to be
a person of normal fortitude in order to be owed a duty of
care. It only requires it to be foreseeable that a person of
normal fortitude in the plaintiff’s position might suffer
mental harm. In this sense, being a person of normal
fortitude is not a precondition of being owed a duty of
care.” (138, 9.13) (Original emphasis)
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
• 29 Personal injury arising from mental or
nervous shock
• In any action for personal injury, the plaintiff is
not prevented from recovering damages
merely because the personal injury arose
wholly or in part from mental or nervous
shock.
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.
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.
Overview for Tonight
• S35
• Duty of Care- s5B
Duty Areas under the CLA
• Risk (will cover in defences)
– Assumption of Risk: ss5F- I
– Recreational Activities: s5J- 5N
•
•
•
•
Public Authorities: ss40-46
Good Samaritands: ss55- 58
Volunteers: ss59
Mental Harm: ss27-33
Practice Question
•
•
•
•
•
•
Arnold was a serving police officer who attended the scene of an horrific train
derailment in Katoomba NSW, whereby six people were killed and many were
injured.
He was among the first ones at the scene following the derailment and was
involved in the rescue operation by providing emergency first-aid and assisting the
injured from the carriages.
Arnold searched through the train where he saw dead bodies in horrible condition,
as well as badly injured people. One of them, he recognised to be his high-school
friend, Steve.
Arnold suffered post traumatic stress syndrome, nervous shock and major
depressive disorder.
State Rail had failed to ensure the train’s “deadman’s” safety device was operating
Arnold brought a claim for damages against State Rail alleging he had suffered
psychiatric injury due to the negligence of State Rail in failing, inter alia, to ensure
the train’s “deadman’s” safety device was operating, or was designed so as to
operate in the event of the incapacitation of the driver.
Did State Rail owe Arnold a Duty of Care?
TORTS LECTURE
PARTICULAR DUTY AREAS
Clary Castrission
clary@40k.com.au
(p) 02 9221 4030
Road Map for Tonight
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Products Liability
Defective Structures
Professional opinions - done
Nervous Shock- done
Council and Public Authorities- done
Commercial Premises
Hotelier/Publican to Intoxicated Patron
Pure Ecomic Loss
PRODUCT LIABILITY
• Common law:
- Donoghue v Stevenson [1932] AC 562
- Grant v Australian Knitting Mills [1936] AC 85
a manufacturer of products, which he sells in such a form as to
show that he intends them to reach the ultimate consumer in
the form in which they left him with no reasonable possibility of
intermediate examination, and with the knowledge that the
absence of reasonable care in the preparation or putting up of
the products will result in an injury to the consumer’s life or
property, owes a duty to the consumer to take that reasonable
care
PRODUCT LIABILITY
• Relevant Statutes:
Sale of Goods Act 1923 (NSW)
Pt 4 Performance of the Contract (ss.30 to 40)
Pt 6 Actions for Breach of the Contract (ss.51 to 56)
PRODUCT LIABILITY
• Relevant Statutes:
- Fair Trading Act (NSW)
Part 4- NSW Consumer Safety and Information Requirements
PRODUCT LIABILITY
• Relevant Statutes:
- Trade Practices Act 1974 (Cth)- now
Competition and Consumer Act 2010 (from 1
January 2011)
- Absolute mammoth! Australian Consumer Law in
Schedule 2 of Div 2 of Part XI
See www.consumerlaw.gov.au
Professional Opinion
• Civil Liability Act
- s.5O Civil Liability Act 2002 “Peer professional
opinion” (ie. The UK “Bolam” test)
- S.5P Civil Liability Act 2002 “Duty to warn”
remains
DEFECTIVE STRUCTURES
• Builders:
Bryan v Maloney (1995) ATR 81- 320
• Architects:
Voli v Inglewood Shire Council (1963) 110 CLR
74
Commercial Premises
• Thompson v Woolworths (Queensland) Pty
Ltd (2005) 221 CLR 234 at 246-247
• Timberland Property Holdings Pty Ltd v
Bundy [2005] NSWCA 419 at [25]-[27]).
Hotelier/Publican to Intoxicated Patron
• Cole v South Tweed Heads Rugby League
Football Club Limited (2004) 217 CLR 469
– Facts
– Held
Cole v South Tweed Heads Rugby League Football Club Limited
(2004) 217 CLR 469
• Majority 4 to 2 (McHugh & Kirby JJ dissenting) no duty of care owed by
the Club
Gleeson CJ:
14….Although there are exceptional cases, as Lord Hope of Craighead
pointed out in Reeves v Commissioner of Police of the Metropolis[6], it
is unusual for the common law to subject a person to a duty to take
reasonable care to prevent another person injuring himself
deliberately. … A duty to take care to protect an ordinary adult person
who requests supply from risks associated with alcohol consumption is
not easy to reconcile with a general rule that people are entitled to do
as they please, even if it involves a risk of injury to themselves.
17. It is possible that there may be some circumstances in which a
supplier of alcohol comes under a duty to take reasonable care to
protect a particular person from the risk of physical injury resulting
from self-induced intoxication[7]. However, the appellant cannot
succeed in this case unless there is a general duty upon a supplier of
alcohol, at least in a commercial setting, to take such care. I do not
accept that there is such a general duty.
Cole v South Tweed Heads Rugby League Football Club
Limited (2004) 217 CLR 469
• Gummow & Hayne JJ:
65. The appellant's contention that her collision with the driver's vehicle was caused
or contributed to by the Club's negligence in continuing to serve her alcohol, when
the Club knew or should have known that she was intoxicated, was a contention
that depended upon taking a number of steps, some (perhaps all) of which may be
contested.
66. First, what exactly is meant by "serving" the appellant alcohol? Does it encompass,
or is it limited to, selling alcohol which it is known that the appellant will consume?
Does it extend to selling, to others, alcohol which it is suspected that the appellant
will consume? How is the Club to control what other patrons may do with bottles
of alcohol which the Club sells them? Given the uncertainties about how and from
whom the appellant obtained alcohol during the second half of the day, these are
questions that go directly to the formulation of the duty which is said to have been
breached.
67. Secondly, the evidence of what the Club knew, or could reasonably be taken to
have known, of what alcohol the appellant took during the day was very slight...
Cole v South Tweed Heads Rugby League Football Club
Limited (2004) 217 CLR 469
• Gummow & Hayne JJ:
68. Unsurprisingly, there was no evidence which would have revealed that servants of
the Club could have (let alone reasonably should have) been able to observe how
much the appellant drank during the morning. That is, as we say, unsurprising
when it is recalled how many patrons attended the Club. About 100 or 120 had
attended breakfast. Some of those patrons stayed at, and no doubt others came
to, the clubhouse and the ground to attend the several football games to be
played that day. There was, therefore, a large and shifting population to observe. If
it is said that the Club owed the appellant a duty to monitor and moderate the
amount that she drank, it owed all its patrons such a duty...
69.Next, what level of intoxication is said to be relevant? Does it mean not lawfully
able to drive a motor car? Some drivers may not drive a motor car if they have had
any alcohol. Other drivers may be unfit to drive after very few glasses of alcohol.
Does "intoxicated" mean, as the primary judge held, "loss of self-control or
judgment which is more than of minor degree"[16]? If that is so, many drinkers will
arrive at that point after very little alcohol.
70.All of these questions would have to be answered in deciding what duty of care
was owed. None can be answered in isolation. All would require consideration of
the purpose for which it is said that the duty alleged is to be imposed.
Cole v South Tweed Heads Rugby League Football Club
Limited (2004) 217 CLR 469
•
Callinan J:
131 I am also of the opinion that in general - there may be some exceptional cases vendors of products containing alcohol will not be liable in tort for the
consequences of the voluntary excessive consumption of those products by the
persons to whom the former have sold them. The risk begins when the first drink
is taken and progressively increases with each further one. Everyone knows at the
outset that if the consumption continues, a stage will be reached at which
judgment and capacity to care for oneself will be impaired, and even ultimately
destroyed entirely for at least a period.
PURE ECONOMIC LOSS
• What is pure economic loss?
• Indeterminacy
– Liability of the defendant to “an indeterminate class, for an
indeterminate time, and in an indeterminate amount”
Ultramares Corp v Douche (1931) 174 NE 441
Pure economic loss
• 2 types:
– Negligent statements leading to pure economic
loss
– Negligent acts leading to pure economic loss, and
1. Negligent Misstatement Causing
Economic Loss
• Early on: no liability. Pulsey
v Freeman (1789); Norton v Asburton [1914]
AC 932
• Why?
– Words are more volatile than deeds. They travel fast and far
afield. They are used without being expended and take effect
in combination with innumerable facts and other words. Yet
they are dangerous and can cause vast financial damage..
Damage by negligent acts to persons or property on the other
hand is more visible and obvious; its limits are more easily
defined. (per Lord Pearce in Hedley Byrne & Co v Heller [1964]
AC 465 at 534.
Hedley Byrne & Co v Heller
• Facts
• How could DOC arise? Special Relationship
– 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)
• Mutual Life & Citizens’ Assurance v Evatt
[1971] AC 793
Shaddock & Associates Pty Ltd v Parramatta
CC (1981) 150 CLR 225
• Held
– … Whenever a person gives information or advice to
another upon a serious matter in circumstances where
the speaker realises, or ought to realise, that he is being
trusted to give the best of his information or advice as a
basis for action on the part of the other party and it is
reasonable in the circumstances for the other party to act
on that information or advice, the speaker comes under a
duty to exercise reasonable care in the provision of the
information or advice he chooses to give.”
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)
Later Clarifications
• Butcher v Lachlan Elder Realty (2004) 218 CLR
592
– “The mere fact that a person had engaged in the
conduct of supplying a document containing
misleading information did not mean that that
person had engaged in misleading conduct: it was
crucial to examine the role of the person in
question” (Gleeson CJ, Hayne and Heydon JJ)
• Tepko Pty Ltd v Water Board (2001) 206 CLR 1
Factors the court will look at
• Nature of relationship
• Special skill (either actually possessing it or
holding oneself to possess it)
• Nature of subject matter
• Reliance- reasonable reliance creates DOC,
actual reliance establishes breach
• Context of interchange: professional? Social?
Information requested?
2. Negligent Act causing pure
economic loss
• Originally- no common law DOC: Leigh &
Sullivan v Aliakmon Shipping Co Ltd [1986] AC
785
• Why?
• What is pure economic loss caused by
negligent act?
• Indeterminacy
– Perre v Apand (1999) 198 CLR 180
THE ‘CALTEX PRINCIPLE’:
Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstadt” (1976)
136 CLR 529
• Facts
THE ‘CALTEX PRINCIPLE’:
Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstadt” (1976)
136 CLR 529
• Held- Mason J
– Liability arises when: A defendant can reasonably
foresee that a specific individual as distinct from a
general class of persons will suffer financial loss…
This approach eliminates the prospect that there
will come into existence liability to an
indeterminate class of persons. (at 593)
Australia beyond Caltex
• Indeterminacy: Johns Period Furniture v Commonwealth
Savings Bank (1980) SASR 224
• Christopher v Motor Vessel “Fiji Gas” [1993] Aust Tort
Reports 81-202
• Johnson Tiles v Esso Australia [2003] Aust Tort Reports 81962
– 1.Reasonable foreseeability of injury;
– 2. Whether there is a relationship of proximity; and
– 3. Identification and consideration of competing salient
features for and against the finding of a DOC
Wrap-Up
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Products Liability
Defective Structures
Professional opinions - done
Nervous Shock- done
Council and Public Authorities- done
Commercial Premises
Hotelier/Publican to Intoxicated Patron
Pure Economic Loss
TORTS
Breach of Duty
Clary Castrission
clary@40k.com.au
Roadmap
•
•
•
•
•
S5B
Understanding standard of care
Foreseeability of risk
Calculus of negligence
An Application: Waverly Council v Ferreira
[2005]
• Res Ipsa Loquitur
• Professional Negligence
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.
Breach of Duty
• Standard of Care
– What standard of care is owed? (Q of law)
• Was risk of injury to the P Reasonably foreseeable?
• Standard of care owed by the reasonable person in the circumstances
• What would the reasonable person do in the D’s position
• Duty breached
– Did the D’s actions fail to meet that standard?
• Probability of risk
• Magnitude of harm
• IF SO
– Was the response of the d to this reasonable?
• Calculus of negligence (from s5B), where relevant, consider
– Reasonability of precautions
– Social utility
• Any relevant professional or statutory standards
Breach of Duty from Shirt
• If reasonable person in defendant’s position would have foreseen
risk to the P, then:
• “... it is then for the tribunal of fact to determine what a reasonable
man would do by way of response to the risk. 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. It is only when these matters are
balanced out that the tribunal of fact can confidently assert what is
the standard of response to be ascribed to the reasonable man
placed in the defendant’s position.”
• Applied in Roads and Traffic Authority of NSW v Refrigerated
Roadways Pty Limited [2009] NSWCA 263 (22 September 2009)
• RTA v Dederer, Gummow J at [69]:
“What Shirt requires is a contextual and
balanced assessment of the reasonable response
to a foreseeable risk.”
Comparing DUTY to BREACH
• Mason J in Wyong v Shirt at 47-48
• Wagon Mound (No. 2) per Lord Reid
– A reasonable man would only neglect such a risk if
he had some valid reason for doing so, eg, that it
would involve considerable expense to eliminate
the risk. He would weigh the risk against the
difficulty of eliminating it ...
Test for breach
1. Was the risk of injury to P reasonably foreseeable? DUTY
– RTA v Dederer (2007) 238 ALR 761
• “It is only through the correct identification of the risk that one can
assess what a reasonable response to that risk would be” (Gummow J
at [59])
2. If so, was the response of the defendant to this risk
reasonable? BREACH
–
–
What would the reasonable person, in the defendant’s
position (with the knowledge that they either had or ought to
have had) have done in the circumstances out of which the
harm arose?
Did the D meet the requisite standard of care?
IF NOT, there has been a breach of duty
Was risk reasonably foreseeable?
(s5B(1)(a))
• Romeo v Conservation Commission (NT)
(1998) 192 CLR 431
– It is quite wrong to read past authority as
requiring that any reasonably foreseeable risk,
however remote, must in every case be guarded
against (Kirby J at 480)
• Check to see if:
– Risk is not far-fetched or fanciful (or insignificant,
under s5B)
Risk not far-fetched or fanciful
• The Wagon Mound (No. 2) [1967] 1 AC 617
• Wyong SC v Shirt (1980) 146 CLR 40
• Chapman v Hearse (1961) 106 CLR 112
“Calculus of Negligence” under 5B(2)
•
•
•
•
Probability of harm occurring if care not taken
Likely seriousness of harm
Burden of taking precautions
Social Utility
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
• RTA v Dederer (2007) 238 ALR 761
Breach of Duty – Seriousness of Harm
• 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 – Social Utility of the
Act of the Defendant
• Section 5B(2)(d) the social utility of the
activity that creates the risk of harm.
• Watt v Hertfordshire County Council
“It is one thing to take risks when driving for
some commercial purpose with no
emergency, but quite another to take risks for
life and limb.” (Lord Denning
How Duty and Breach work together–
s.5B(1) & (2)
• Waverley Council v Ferreira [2005] NSWCA 418
• Facts
Issue 1: The Fence and the undergrowth
• S5B(1)
– Risk of harm foreseeable?
– Risk of harm significant?
– In circumstances, would reasonable person have
taken precautions?
s.5B(1)(a) - Waverley Council v Ferreira
• Foreseeability of harm
• 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.
• Doubleday v Kelly [2005] NSWCA 151
“The actual events as they happened are not the circumstances
to which consideration of foreseeability of risk of injury is
applied; what is to be considered is foresight in more general
terms of risk of injury.” per Bryson JA
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.
s5B(2) in Ferreira
• s5B(2)
– Probability of harm if care not taken
– Likely seriousness of harm
– Burden of taking precautions to avoid risk
– Social utility of activity which creates risk
s.5B(2) - Waverley Council v Ferreira
• Ipp JA (Spigelman CJ & Tobias JA agreeing)
• 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).
So would reasonable council remove the
fence and undergrowth?
• 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.
So what about the grille?
• Did the council breach its duty by not putting
a grille on the skylight?
- IN SOLVING THESE PROBLEMS:
1. Find out if risk or harm was foreseeable (question
of law) under 5B(1)
2. THEN, balance up the cost of the precautions
(under s5B(2)- as directed by 5B(1)(c)
Council of the City of Greater Taree v Wells
[2010] NSWCA 147 (1 July 2010)
• Facts
• KIRBY J in Romeo v Conservation Commission
(young woman fell 6.5m off cliff)
• “It is one thing to hold that a person owes a
duty of care of some kind to another. But the
critical question is commonly the measure or
scope of that duty. The failure to distinguish
these concepts can only lead to confusion.”
Council of the City of Greater Taree v Wells
[2010] NSWCA 147 (1 July 2010)
• Quoted McColl JA in RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
• “5B is not a self-contained statement of the circumstances in
which a liability for negligence will arise. Rather, subsection 1
sets out three preconditions that must co-exist before a liability
in negligence arises, when the type of negligence alleged is
failure to take precautions against a risk of harm arising….
Subsection 2 provides a non-exhaustive list of factors the court
is required to take into account in deciding whether the third of
those preconditions exists. Section 5B presupposes the
existence of the law of negligence, and operates against its
background.”
Res Ipsa Loquitur
• Elements:
– Accident must raise presumption of negligence
• Examples: Chaproniere v Mason (1905) 21 TLR 644,
Mahon v Osborne [1939] 2 KB 14
– Thing must be under D’s control
– Actual cause of accident must not be known
• Barkway v South Wales Transport [1950] AC 185
• Nominal Defendant v Haslbauer (1967) 117 CLR 448
• Effect
Wrapping up Breach of Duty
• Standard of Care
– What standard of care is owed? (Q of law)
• Standard of care owed by the reasonable person in the circumstances
• What would the reasonable person do in the D’s position
• Duty breached
– Did the D’s actions fail to meet that standard?
• Was risk of injury to the P Reasonably foreseeable?
• Degree of risk
• Magnitude of harm
• IF SO
– Was the response of the d to this reasonable?
•
•
•
•
Calculus of negligence (from s5B) AND where relevant, consider
Reasonability of precautions
Social utility
Any relevant professional or statutory standards
Special Breach of Duty Provisions
under the Act
• Professional Negligence (standard of care)
Professional negligence
Sections 5O & 5P
• “Peer professional opinion” (or Bolam) test for
determining the appropriate standard of care
– Bolam v Friern Hospital Management Committee [1957] 2 All ER
118
– Sidaway v Governors of Bethlehem Royal Hospital [1985]
UKHL1
• “The Bolam principle may be formulated as a rule that a
doctor is not negligent if he acts in accordance with a
practice accepted at the time as proper by a responsible
body of medical opinion even though other doctors adopt a
different practice. In short, the law imposes the duty of care:
but the standard of care is a matter of medical judgment.”
(Lord Scarman at 881)
F v R (1983) 33 SASR 189: per King CJ at 194
“The ultimate question is not whether the defendant’s conduct accords with the
practices of his profession or some part of it, but whether it conforms to the
standard of reasonable care developed by the law.”
• Rogers v Whitaker (1992) 175 CLR 479
– Facts
– Relevance of professional opinion v
conclusiveness
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
• (3) The fact that there are differing peer professional
opinions widely accepted in Australia concerning a matter
does not prevent any one or more (or all) of those opinions
being relied on for the purposes of this section.
• (4) Peer professional opinion does not have to be
universally accepted to be considered widely accepted.
2nd Reading Speech, Hansard 23
October 2002.
• “The bill also creates an additional defence to
alleged professional negligence if the
professional acted in a manner that was
widely accepted in Australia by pure
professional negligence if the professional
opinion as competent professional practice.”
• The Premier, Minister for Arts and Minister for
Citizenship.
Dobler v Kenneth Halverson and Ors;
[2007] NSWCA 335
• Facts
• Trial
• At Court of Appeal
s5P- Failure to warn of risks
• This Division does not apply to liability arising
in connection with the giving of (or the failure
to give) a warning, advice or other information
in respect of the risk of death of or injury to a
person associated with the provision by a
professional of a professional service.
Wrapping up negligence thus far- DOC
• Established category OR
• Reasonable Foreseeability:
– Would the reasonable person in the D’s position have foreseen that there
was a real risk that carelessness on his/her behalf could cause loss/harm to
people in the P’s position?
• “not far-fetched or fanciful” Shirt
• s5B(1) – ‘not insignificant’:
– using s15AA Acts Interpretation Act
– para 7.15 of the Ipp Report states that “the phrase ‘not
insignificant’ is intended to indicate a risk that is of a higher
probability than is indicated by the phrase ‘not far-fetched or
fanciful’” but is not intended “to be a synonym for ‘significant’”.
• If risk is obvious, there is no DOC: s5G
– Was P one of these people?
• Vulnerability
– Was D in a position of power and knew this?
– Was P in a position of powerlessness?
DOC (continued)
Special categories
• Mental Harm (different): s32 explains DUTY:
person of normal fortitude might, in the
circumstances, suffer recognized psychiatric
illness if reasonable care not taken.
• Local authorities: s42- affects DOC AND
BREACH
• Good Samaritans: ss56-57, and volunteers
Breach of Duty- the Test
• Standard of Care
– What standard of care is owed? (Q of law)
• Standard of care owed by the reasonable person in the
circumstances
– Professionals acting in line with professional opinion: s5O
and 5P
• What would the reasonable person do in the D’s position
• Duty breached
– Did the D’s actions fail to meet that standard? (Question of fact)
• Was risk of injury to the P Reasonably foreseeable? (Shirt and
5B)
• Degree of risk
• Magnitude of harm
– Special case: public authorities: s43, roads s45
• IF SO
– Was the response of the d to this reasonable?
• Calculus of negligence (from s5B) AND
where relevant, consider
• Reasonability of precautions
• Social utility
• Res Ipsa Loquitur (evidentiary rule that could help
when there is no other explanation for the
accident)
Roadmap
•
•
•
•
•
S5B
Understanding standard of care
Foreseeability of risk
Calculus of negligence
An Application: Waverly Council v Ferreira
[2005]
• Res Ipsa Loquitur
• Professional Negligence
TORTS
Causation
[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
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.
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 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 off
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
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)
LAW OF TORTS
Defences to Negligence
DEFENCES TO ACTIONS IN
NEGLIGENCE
COMMON LAW
• Contributory negligence
• Voluntary assumption of risk, volenti non fit injuria
• Illegality
CIVIL LIABILITY ACT
• Pt 1A - ss5F to I: Assumption of Risk
- ss5R to T: Contributory Negligence
• Pt 5- Public Authorities
• Pt 6 Intoxication
• Pt 7 Self-Defence & Recovery by Criminals
Contributory Negligence
Earlier approaches in Common Law:
The complete defence (Williams v Commissioner
for Road Transport (1933) 50 CLR 258)
• Butterfield v Forrester (1809) 11 East 60
- The last opportunity rule
The development of apportionment
legislation
Contributory Negligence at Common Law:
The nature of the P’s conduct
D must prove:
1.The P was at fault or negligent
-
Children: Doubleday v Kelly [2005] NSWCA 151
Intoxication: Joselyn v Berryman
2.The fault or negligence contributed to the injury
or loss suffered by P (causation)
3.The damage was a reasonably foreseeable
consequence of the P’s fault or negligence
1. FAULT
Joslyn v Berryman; Wentworth Shire Council v Berryman
[2003] HCA 34 (18 June 2003)
• Facts
Joslyn v Berryman
• Trial – Boyd-Boland ADCJ found for Mr Berrymen but reduced
damages by 25% for contributory negligence.
• NSWCA - Priestley JA, Meagher JA and Ipp AJA upheld
Mr Berryman's appeal by holding that he was not guilty of any
contributory negligence at all. The leading judgment was given by
Meagher JA with whom the other members of the Court agreed.
•
"His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff.
The only action of his which could possibly have amounted to contributory negligence was
permitting Miss Joslyn to drive instead of him. In this regard, one must view matters as they
stood at the time of handing over control of the car, (not as they were in the previous 24 hours), a
task which his Honour did not really undertake. One must also, if one concludes that at the time of
handing over Mr Berryman was too drunk to appreciate what was happening, a situation as to
which there is no evidence in the present case, judge the question of contributory negligence on
the hypothesis that the plaintiff did have sufficient foresight to make reasonable judgments. But,
although at the time of the accident the blood alcohol levels of Miss Joslyn and Mr Berryman were
estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no evidence that either of
them were drunk at the time, and certainly no evidence that at the time Mr Berryman had any
reason to think that Miss Joslyn was affected by intoxication. Indeed, quite to the contrary. Of
the people who were present who gave evidence, all said that Miss Joslyn showed no signs of
intoxication. His Honour so found. Despite, therefore, one's reluctance to overrule a trial judge's
finding on apportionment (Podrebersek v Australian Iron and Steel Pty Ltd), it seems quite
impossible to justify his Honour's conclusion on contributory negligence. I would be in favour of
reducing it from 25% to 0%."
Joslyn v Berryman
• HC – McHugh, Gummow, Callinan, Kirby
& Hayne JJ allowed the appeal (ie.
Overturned the decision of the NSWCA)
• Besides criticism of the NSWCA for not
referring to s.74 MAA 1988 (ie. contrib neg shall be
made unless found not to have contributed), Gummow and
Callinan JJ found the NSWCA erred in
fact.
Joslyn v Berryman
• Gummow & Callinan JJ –
“A person in the position of Mr Berryman ought to have known, and
in fact would have known (if he had not precluded himself from
knowing by his own conduct) that Ms Joslyn's capacity must have
been impaired, and probably grossly so, by the amount of alcohol
she had drunk, not only during the immediately preceding evening,
but also on the night before that. Furthermore Mr Berryman either
knew, or ought to have known that the effects of two consecutive
evenings of immoderate consumption would have had a
compounding effect of tiredness and reduced attentiveness upon
both of them... Factually the Court of Appeal erred in not finding
that Mr Berryman's and Ms Joslyn's faculties, and accordingly
their capacities to observe, react, assimilate, and deal with
information and to drive a motor vehicle must have been seriously
impaired by the consumption of alcohol”.
Motor Accidents Compensation Act
1999 s 138
• A finding of contributory negligence must be
made in the following cases:
– where the injured person or deceased person has
been convicted of an alcohol or other drug-related
offence in relation to the motor accident…
– Where the driver’s ability to control vehicle was
impaired by alcohol and the P as an adult
voluntary passenger was/ought to have been
aware of this…
– Where the injured party was not wearing set
belt/protective helmet, and was required by law to
wear such belt/helmet
Civil Liability Act 2002
• s5S – a court may determine a reduction of
100% if it is just and equitable to do so
: compare Wynbergen –v- Hoyts Corp (1997) 149 ALR
25
• s5T – a court may reduce a claim for damages
under the Compensation to Relatives Act 1897
for contributory negligence of the deceased
• S50(4) – a presumption of contributory
negligence of 25% if the plaintiff was intoxicated
at the time of injury
2. CAUSATION
• Question of fact- was the damage suffered
by the P caused by the D’s failure to act?
- Using a bus as an example- did P run in front of it? Not
use the hand rails?
- Monie v Commonwealth [2007] NSWCA 230
3. REASONABLY FORESEEABLE
• Type of injury must be reasonably
foreseeable in the circumstances.
- Gent-Diver v Neville [1953] St R Qd 1
Contributory Negligence of Rescuers
• Azzopardi v Constable; Azzopardi v Thompson [2006]
NSWCA 319
• The NSW Court of Appeal has found that two rescuers
hit by a motor vehicle contributed to their injury by not
taking due care when assisting another motorist. The
two rescuers were dressed in dark clothing, neglected to
turn on their vehicles' hazard lights and were not alert to
oncoming traffic. Hodgson JA and McColl JA both
reduced the damages payable to the rescuers from 75%
to 50%. Ipp JA dissented, finding that the rescuers
ought to have been more careful when in a position
of such obvious danger, and would have reduced the
damages to 25%.
The Substance of Apportionment
Legislation
- Courts directed to reduce damages recoverable to
what it thinks to be ‘just and equitable.’
Law Reform (Miscellaneous) Act 1965 (NSW) s9
(1) Where any person suffers damage as the result partly of
his/her own fault and partly of the fault of any other persons,
(a) a claim in respect of that damage shall not be defeated
by reason of the fault of the person suffering the damage, and
(b) the damages recoverable in respect thereof shall be
reduced to such extent as the court thinks just and equitable
having regard to the claimant’s share in the responsibility for
the damage
What is Just and Equitable?
Pennington v Norris (1956) 96 CLR 10
• “By culpability we do not mean moral
blameworthiness but degree of departure
from the standard care of the reasonable
man.” (at 16)
Reasonableness must be judged in light of
all the circumstances: Joslyn v Berryman
- Wynbergen -v- Hoyts Corporation P/L
(1997)
Contributory Negligence under the
Civil Liability Act
• s5R (standard of CN- same as negligence)
• s5S (CN can defeat a claim)
- In determining the extent of a reduction in
damages by reason of CN, a court may
determine a reduction of 100% if the court
thinks it just and equitable to do so, with
the result that the claim is defeated.
Wrapping up Contributory
Negligence
At common law: D must prove
1. The P was at fault or negligent
2. The fault or negligence contributed to the injury
or loss suffered by P (causation)
3. The damage was a reasonably foreseeable
consequence of the P’s fault or negligence
Statutory Apportionment
Voluntary Assumption of Risk
Volenti Non Fit Injuria
• Rootes v Shelton (1967) 116 CLR 383
• The elements
– P must have full knowledge of the risk
– P must have voluntarily accepted the physical and
legal risk
• Hard to prove
– Rootes v Shelton (1967) 116 CLR 383
Volenti v Contributory Negligence
Ipp Committee Report (2002):at 8.23
Since the introduction of the defence of contributory
negligence, the defence of voluntary assumption of risk
has become more or less defunct. This is because any
conduct that could amount to voluntary assumption of
risk would also amount to contributory negligence .
Courts prefer the defence of contributory negligence
because it enables them to apportion damages…
- Difference: CN requires degree of fault, volenti doesn’t
Full Knowledge of Risk
• Subjective test: very difficult for the D to
prove as mere knowledge alone does not
imply consent.
• Canterbury Municipal Council v Taylor
[2000] NSWCA 24
Voluntary acceptance of risk
2 elements:
The P must have voluntarily accepted that
there was a:
1.Physical risk (through injury), and
2.A risk that reasonable care would not be
taken by the D (legal risk)
- Imperial Chemical Industries Ltd v Shatwell
[1965] AC 656
Rootes v Shelton (1967) 116 CLR 383
“To say that the P voluntarily assumed the
risk of colliding with an obstruction in the
water is one thing. To say that the D
would carelessly fail to warn him of the
presence of such an obstruction or would
fail to exercise due care in steering the
launch of which he had control is a very
different proposition…” (at 395)
Voluntary Assumption of Risk
• Scanlon v American Cigarette Company
Overseas Pty Ltd (No 3) [1987] VR 289
– If it is to be the case that the smoking of the said
cigarettes involved risk of injury as alleged… the P
knew or ought to have known that the smoking of the
said cigarettes involved such risk and the P accepted,
consented to and voluntarily assumed the same
(extract from D’s statement of defence)
VAR in the Work Place
• Smith v Baker & Sons P
The defence is not constituted by knowledge of the
danger and acquiescence, but by an agreement to
run the risk and to waive your rights to compensation
Civil Liability Act 2002
Assumption of Risk (Part 1A, Division 4)
- Does not replace the common law, rather:
a) Rebuttable presumption that a P was aware of a
risk of harm if that risk is an ‘obvious risk’: s5G
b) No duty to warn of obvious risk, unless P
requests info about the risk, warning is required
by law: s5H
c) Excludes liability for materialisation of an
inherent risk: s5I Wyong Shire Council v Vairy [2004]
NSWCA 247
Sport and Recreational
Activities
• By engaging in a sport or pastime the
participants may be held to have accepted
the risk which are inherent in the sport:
Agar v Hyde (2000) 201 CLR 383
• Inherent risk only those which are naturally
incidental to the game being played and
any extraordinary, although foreseeable,
risks incidental to that sport.
Civil Liability Act 2002
Recreational Activities (Part 1A, Division 5)
s5K- definitions
In this Division:
"dangerous recreational activity" means a
recreational activity that involves a significant risk of physical
harm. "obvious risk" has the same meaning as it has in Division
4. "recreational activity" includes:
(a)any sport (whether or not the sport is an organised activity), and
(b)any pursuit or activity engaged in for enjoyment, relaxation or
leisure, and
(c)any pursuit or activity engaged in at a place (such as a beach,
park or other public open space) where people ordinarily engage
in sport or in any pursuit or activity for enjoyment, relaxation or
leisure.
Civil Liability Act 2002
Recreational Activities (Part 1A, Division 5)
S5L- no liability for harm suffered materialisation of
obvious risks of dangerous recreational activities
s5M- no duty of care for recreational activity where
there is a risk warning
Swain v Waverley Municipal Council (2005)
How the HC may view “recreational activity”
MR MENZIES QC:It is the Civil Liability Act 2002 and it Division 5 “Recreational
Activities” - - -
•
•
GUMMOW J: What does it say? What is the critical provision?
MR MENZIES QC: Well, 5J applies only in respect of liability in negligence for harm
to a person (“the plaintiff”) resulting from a recreational activity engaged in by the
plaintiff.
Recreational activity is divided into two kinds. There is;
•
“dangerous recreational activity” means a recreational activity that involves a
•
“recreational activity” includes:
•
significant risk of physical harm.
That is in the definition section 5K, and:
(a) any sport . . .
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach . . .
5L No liability for harm suffered from obvious risks of dangerous recreational
activities . . .
5M No duty of care for recreational activity where risk warning –
so that liability would seem to be excluded if a risk warning is put up, assuming this is
a recreational activity. If, on the other hand, as Chief Justice Gleeson points out, this
might well be regarded as a dangerous recreational activity, you do not even have to
put a sign up, that is the end of it.
Swain – Insight to how the HC may
view “recreational activity”
• KIRBY J: It does not sound as though this is
categorised. That is paragliding and things of that kind, I
would have thought, because they say, “such as on a
beach” in the definition of “recreational activity”.
• MR MENZIES QC: True.
• GLEESON CJ: What about recreational activities that
are dangerous for some people, like people who cannot
swim, and not dangerous for others?
• MR MENZIES QC: I have no doubt that at some point
that is going to entertain your Honours.
• GUMMOW J: Here we are again, more imperfect law
reform.
Wrapping up VAR
• VAR is tough to for the D to prove as D
would have to prove:
a)P had full knowledge of the risk and
b)Voluntarily accepted the physical and legal
risk.
Illegality
Who has been acting illegally?
- The P?
- The D?
- Both?- Joint Illegal Enterprise
- D may be able to be absolved from
negligence liability
Joint Illegal Enterprise
D must prove:
1.They and the P were jointly engaged in an
illegal activity, and
2.There was a connection between the
illegal activity and the negligent conduct
Jackson v Harrison (1978) 138 CLR 438
- The conduct within the illegal enterprise must be
connected to the alleged negligence
Plaintiff Illegal Activity
• At common law:
- Just because the P was engaged in
criminal conduct at time of injury doesn’t
necessarily prevent duty from being owed:
Hackshaw v Shaw (1984) CLR 614
Civil Liability Act 2002
Illegality
• S54 – criminals not to be awarded
damages if:
(a) on the balance of probabilities, the
conduct constitutes a “serious offence”,
and
(b) that conduct contributed materially to
the risk of death, injury or damage.
TORTS LECTURE 11
NUISANCE
WHAT IS NUISANCE?
• An unreasonable conduct that materially
interferes with the ordinary comfort of
human existence
THE TWO ‘SIDES’ OF NUISANCE
NUISANCE
PRIVATE
PUBLIC NUISANCE
Private Nuisance- The Roadmap
1. Establishment
(a) Unlawful interference with someone’s interest in land
(b) Balance of rights
(c) Intangible interference
2. Who can sue?
(a) Proprietary interest
(b) Family members?
3. Who can be sued?
(a) Person who created the nuisance
(b) Others
4. Defences
5. Remedies
Nuisance in context
Nuisance v Negligence
Nuisance v Trespass
1(a) Interference with land
• The substantial interference with the plaintiff's use
of his/her land by the unreasonable conduct of the
defendant: Halsey v Esso Petroleum [1961]
– Unlawful interference with P’s interest in land
• Misfeasance:
– St Helens Smelting Co v Tipping (1965)
– Bonic v Fieldair (1999)
• Nonfeasance:
– The tort protects against interferences with
the enjoyment of land
• Munro v Southern Dairies [1955]
1(a)
1. Establishment- interference
“Inconvenience materially interfering with the
ordinary comfort physically of human existence,
not merely according to dainty modes and habits
of living, but according to plain and sober and
simple notions among the English people.”
- Knight Bruce VC in Walter v Selfe
(1851)
1(a)
P Baer Investments Pty Ltd v University of New South
Wales [2007] NSWLEC 128;
• Facts
• Issues
– Whether respondent's trees damaged applicant's sewer pipes.
– Whether cost of replacing pipes should be apportioned
• Held:
1(a) O'Neill
v Frost [2007] NSWLEC 400;
BC200705292
• Facts
• Issue:
– Whether removal of fallen tree should be ordered.
– Whether tree with structural concerns should be removed.
• Held: Application granted in part.
1(a)
Vella v Owners of Strata Plan 8670 [2007]
NSWLEC 365; BC200704853
• Facts
• Applicant applied for removal of trees six years after aware of
damage.
• Issue:
– Whether trees warranted removal because damaged pavement.
– Whether damage should be apportioned because applicant aware of
damage.
• Held: Application granted in part.
1(a)
Hunt v Bedford — [2007] NSWLEC 130;
BC200701745
• Facts
• Held: Application dismissed.
1(b) The Balancing of Interests
“Sic utere tuo ut alienum non laedas” (“Use
your own thing so as not to harm that of
another”)
1(b) Establishment- balancing
“A dweller in towns cannot expect to have as pure air, as free
from smoke, smell, and noise as if he lived in the country, and
distant from other dwellings, and yet an excess of smoke, smell,
and noise may give a cause of action, but in each of such
cases it becomes a question of degree, and the question is in
each case whether it amounts to a nuisance which will give a
right of action.”
- Lord Halsbury in Colls v Home & Colonial Stores
[1904]
- Munro v Southern Dairies [1955], Hasley v Esso Petroleum [1961]
1(b)
Gray v State of New South Wales Matter
No 2391/96 (31 July 1997)
• The law in this sort of case is tolerably clear. The
law of nuisance, the tort upon which the plaintiffs
sue, is not to protect people, but to protect property
values. That is so because it is an ancient remedy
that has come down through the ages. Thus the
mere fact that one is disturbed by noise or one gets
irritated by prying children or one's privacy is
invaded is not sufficient to make out the tort of
nuisance…. The plaintiffs are, however, entitled not
to have the value of their property diminished by the
noisy activities of the defendants (Young J)
1(b)
Gray v State of New South Wales Matter
No 2391/96 (31 July 1997)
"A useful test is perhaps what is reasonable
according to the ordinary usages of mankind
living in society, or more correctly in a particular
society." (per Lord Wright in Sedleigh-Denfield
v. O'Callaghan (1940) AC, at p 903 )
1(b) How do we balance?
• Unreasonable is based on the reasonable
person, and what ordinary ‘give and take’
limits are.
– Locality: Munro v Southern Dairies
– Time, and duration: Wherry v KB Hutcherson
Pty Ltd (1987) NSW
– Nature of activities: Thompson-Schwab v
Costaki (1956), McKenzie v Powley (1916)
– Availability of alternatives: Cohen v Perth (2000)
Seidler v Luna Park Reserve Trust
(1995) NSW Unreported
• Facts
• Rollercoaster Hours:
– Non-School Holidays
• Friday: 5.30pm-10pm
• Sat: 10am-7pm
• Sun: 11am-7pm
– School Holidays
• Thurs: 10am-8pm
• Fri/Sat: 10am-11pm and Sun: 11am-7pm.
• Held
LUNA PARK CASES
• Seidler v Luna Park Reserve Trust (1995)
• Luna Park Site Amendment Noise Control Act 2005
– 19A Legal proceedings and other noise abatement action
(1) No criminal proceedings, no civil proceedings (whether at law or in
equity) and no noise abatement action may be taken against any person
with respect to the emission of noise from the Luna Park site.
(2) The emission of noise from the Luna Park site does not constitute a
public or private nuisance.
(3) This section does not apply to or in respect of noise that exceeds the
maximum permissible noise level at the closest residential facade
Street & 7 ors v Luna Park Sydney Pty Ltd & 1
or [2006] NSWSC 230 (6 April 2006)
– Ps’claim
– D’s claim
– Held (Brereton J)
THE NATURE OF D’S CONDUCT
D’s conduct must be unreasonable.
– In general act/conduct which is
reasonably necessary for the normal
user of land would not be considered
unreasonable
• Malicious intent
– Hollywood Silverfox Farm Ltd v Emmett
2. WHO CAN SUE?
• P must have proprietary interest in the affected land to
be able to sue
“A sulphurous chimney in a residential area is not nuisance
because it makes householders cough and splutter but
because it prevents them taking their ease in their
gardens. It is for this reason that the plaintiff in an action
for nuisance must show some title to realty.”
- Newark, The Boundaries of Nuisance (1949)
• Malone v Laskey [1907]
Doesn’t include P’s view of property
• Victoria Park Racing & Recreation
Grounds v Taylor (1937)
Who Can Sue? The Cases
– Oldham v Lawson [1976] VR 654
– Khorasandjian v. Bush [1993] Q.B. 727,
– Hunter v Canary Wharf
“If a P, such as the daughter in Khorsandjian, is
harassed by abusive telephone calls, the gravamen
of the complaint lies in the harassment which is just
as much an abuse, or indeed an invasion of her
privacy, whether she is pestered in this way in her
mother’s house, or even in her car with a mobile
phone. In truth, what the CA appears to have been
doing was to exploit the law of private nuisance in
order to create by the back door a tort of harassment
which was only partially effective in that it was
artificially limited to harassment which takes place at
her home. I myself do not think this is a satisfactory
manner in which to develop the law, especially when
the step taken was inconsistent with another decision
in the CA in Malone”- LORD GOFF
2(cont) ABNORMAL PLANTIFFS
• For sensitive uses of land, interference not
unreasonable unless it would have been
unreasonable to ordinary use of land.
– Robinson v Kilvert (1889)
3. WHO MAY BE SUED?
• The creators of the nuisance
– Fennel v Robson Excavations Pty Ltd (1977)
– Hargrave v Goldman (1963)
– De Jager v Payneham & Magill Lodges (1984)
Checking In: Private Nuisance
1. Establishment
(a) Unlawful interference with someone’s interest in land
(b) Balance of rights
(c) Intangible interference
2. Who can sue?
(a) Proprietary interest
(b) Family members?
3. Who can be sued?
(a) Person who created the nuisance
(b) Others
4. Defences
5. Remedies
Public Nuisance: The Roadmap
1. Establishment
(a) Act/omission which materially affects collective rights
of the public
2. Who can sue?
(a) The state
(b) A plaintiff who suffers ‘special damage’
3. Who can be sued?
(a) Person who created the nuisance
(b) Others
4. Defences
5. Remedies
Public Nuisance v Private Nuisance
What’s the difference??
1. INTERFERENCE: QUEUES OBSTRUCTING
PUBLIC HIGHWAYS AND ROADS
• Silservice Pty Ltd v Supreme Bread Pty Ltd
• Harper v GN Haden & Sons (1933)
THE DEGREE OF INTERFERENCE
• It is not every interference however slight
that constitutes an actionable nuisance;
the interference must be substantial and
material York Bros v Commissioner of
main Roads
2. Who can sue?
• P may sue in public nuisance only if he/she can
establish special damage above and beyond
that suffered by other members of the affected
public
– Walsh v Ervin
t
“I cannot see that the appellants here can make out a case
that they were denied free uninterrupted access to the
roadway by the conduct of the respondents in imposing the
parking restrictions in question. True, the parking restrictions
were in adjajcent streets, but it cannot be said that access to
and from the roadway was denied or seriously impaired…
As the learned trial judge observed, “The shorter time limit
did not materially alter the position.’ The fact that parking
was limited to 1hr duration in portions of two streets near the
restaurant could not in law constitute an actionable nuisance
on he ground that potential customers were prevented from
getting to the restaurant (continuing).”
It is difficult to see how the conduct in
question of the respondents constituted a
nuisance… all the available parking space
could have been taken by residents and
their visitors at any given point of time.”
- per Helman J
PUBLIC BENEFIT AND PUBLIC
NUISANCE
• In general public benefit is not a defence
that can defeat P’s objections to D’s
conduct
• Where the interference to P is not
substantial, the public benefit argument
may be used to reinforce the justification
to the inconvenience caused to P
Public Nuisance: The Roadmap
1. Establishment
(a) Act/omission which materially affects collective rights
of the public
2. Who can sue?
(a) The state
(b) A plaintiff who suffers ‘special damage’
3. Who can be sued?
(a) Person who created the nuisance
(b) Others
4. Defences
5. Remedies
4. Defences
• Statutory authority
– York Bros v Commissioner for Main Roads
(1983)
• Consent
5. REMEDIES
• Abatement of nuisance
• Injunction to prevent the continuation
• Damages
– Bone v Seale [1975]
– Oldham v Lawson (no. 1) [1976]
– Challen v McLeod Country Club [2001]
– Shelfer v City of London Electric Lighting [1895]
WRAP-UP
NUISANCE
PRIVATE
PUBLIC NUISANCE