Negligence – Duty of Care
Clary Castrission clary@40k.com.au

• 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

• 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

FAULT
NEGLIGENCE INTENTION
TRESPASS
CARELESS
NEGLIGENCE the action

• 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:
– fault: intentional or negligent act
– injury must be direct
– injury may be to the P or to his/her property
– No lawful justification

• 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 .

• 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
Duty of care
Breach
Damage

• 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.

• Facts
• Understanding the relationships

• 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)

• 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 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)

• 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

• 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

• 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

• Question of identity of the plaintiff:
• 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?

– 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]

• 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…”

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)

• 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 High Court has expressed reservations about the usefulness of the notion of proximity in recent times
– Sutherland SC v Heyman (1985)
– Hill v Van Erp (1997)
– Perre v Apand (1999)
– Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000)

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 ”

• “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

• 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.

• 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

• 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

• Facts
• High Court gets the chance to explore the current state of duty of Care

• 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]

• 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]

• 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]

• Foreseeability
• Proximity
• Policy

The quest for the unifying principle
- Anns 2-Stage Test
- Caparo
Incremental Approach: A compromise
- Brodie v Singleton Shire Council (2001) 206 CLR 512

• 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

• 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

• 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

• 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. ”

• 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 ”

• 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 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 28 th
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

• 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.

• [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)

• ‘ 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)

• 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)

• 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

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)

• 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

• (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

• 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.

• 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

• 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

• 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 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)

• Sections 40 to 46
• Provides specific additional protection for public authorities including:
the Crown
Government departments
Local councils
Other prescribed bodies

• 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

• (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 road work 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.

•
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.

– 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.

North Sydney Council –v- Roman [2007] NSWCA 27
•
Facts
•
At Trial

• 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)

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.

• 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

• 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 (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)

• 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

• 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

• Both heard together:
– Tame v NSW (2002) 211 CLR 317
– Annetts v Australian Stations Pty Ltd (2002) 211
CLR 317

• 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

• “... 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)

• “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)

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.

• 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.

• 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.

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

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.

• 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

• 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?

PARTICULAR DUTY AREAS
Clary Castrission clary@40k.com.au
(p) 02 9221 4030

(a) Products Liability
(b) Defective Structures
(c) Professional opinions - done
(d) Nervous Shock- done
(e) Council and Public Authorities- done
(f) Commercial Premises
(g) Hotelier/Publican to Intoxicated Patron
(h) Pure Ecomic Loss

• 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

• 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)

• Relevant Statutes:
- Fair Trading Act (NSW)
Part 4- NSW Consumer Safety and Information Requirements

• 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

- s.5O Civil Liability Act 2002 “ Peer professional opinion ” (ie. The UK “ Bolam ” test)
- S.5P Civil Liability Act 2002 “ Duty to warn ” remains

• Builders:
Bryan v Maloney (1995) ATR 81- 320
• Architects:
Voli v Inglewood Shire Council (1963) 110 CLR 74

• 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]).

• 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.

• 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

• 2 types:
– Negligent statements leading to pure economic loss
– Negligent acts leading to pure economic loss, and

• 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.

• 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.”

•
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)

• 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

• 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?

• 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

‘
’
Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstadt” (1976)
136 CLR 529
•
Facts

‘
’
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)

• 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 81-
962
– 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

(a) Products Liability
(b) Defective Structures
(c) Professional opinions - done
(d) Nervous Shock- done
(e) Council and Public Authorities- done
(f) Commercial Premises
(g) Hotelier/Publican to Intoxicated Patron
(h) Pure Economic Loss
(i)

Clary Castrission clary@40k.com.au

• S5B
• Understanding standard of care
• Foreseeability of risk
• Calculus of negligence
• An Application: Waverly Council v Ferreira
[2005]
• Res Ipsa Loquitur
• Professional Negligence

• 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.

• Standard of Care
– What standard of care is owed?
• 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

• 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.”

• 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 ...

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

• Probability of harm occurring if care not taken
• Likely seriousness of harm
• Burden of taking precautions
• Social Utility

• 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

• 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

• Section 5B(2)(c) the burden of taking precautions to avoid the risk of harm
• Caledonian Collieries Ltd v Speirs (1957) 97
CLR 202

• 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

• 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?

• 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

• 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)
– 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).

• 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.

• 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.”

• 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

• 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

• Professional Negligence (standard of care)

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

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.

nd
• “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.

[2007] NSWCA 335
• Facts
• Trial
• At Court of Appeal

• 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.

• 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?

• Standard of Care
– What standard of care is owed?
• 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)

• S5B
• Understanding standard of care
• Foreseeability of risk
• Calculus of negligence
• An Application: Waverly Council v Ferreira
[2005]
• Res Ipsa Loquitur
• Professional Negligence

Causation

Duty of Care breach causation damage

• 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

• (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 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:

• 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

Causation
Factual
(Causation in fact)

• 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

• 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

• 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

•
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)

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

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 intoxicatio n. 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 ” .

• 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

• 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

• 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

• Type of injury must be reasonably foreseeable in the circumstances.
Gent-Diver v Neville [1953] St R Qd 1

• 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%.

- 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

•
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)

• 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.

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

• 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

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

• 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

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)

• 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)

• 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

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

• 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.

Recreational Activities (Part 1A, Division 5) s5K- definitions
I n 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.

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
Activities ” - - -
“ Recreational
•
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 ( plaintiff.
“ the plaintiff ” ) resulting from a recreational activity engaged in by the
Recreational activity is divided into two kinds. There is;
“ dangerous recreational activity ” means a recreational activity that involves a significant risk of physical harm.
That is in the definition section 5K, and:
“ recreational activity
” includes:
(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.

• 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.

• 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.

Who has been acting illegally?
- The P?
- The D?
- Both?- Joint Illegal Enterprise
- D may be able to be absolved from negligence liability

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

• 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

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.

NUISANCE

• An unreasonable conduct that materially interferes with the ordinary comfort of human existence

‘
’
NUISANCE
PRIVATE
PUBLIC 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

Nuisance v Negligence
Nuisance v Trespass

• 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)
“ 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)
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)
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)
• Facts
• Held: Application dismissed.

“ Sic utere tuo ut alienum non laedas ” ( “ Use your own thing so as not to harm that of another ” )

“ 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)
• 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)
"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 )

• 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)

• 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

• 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

[2006] NSWSC 230 (6 April 2006)
– Ps ’ claim
– D ’ s claim
– Held (Brereton J)

’
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
– Hollywood Silverfox Farm Ltd v Emmett

• 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]

• Victoria Park Racing & Recreation
Grounds v Taylor (1937)

– 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

• For sensitive uses of land, interference not unreasonable unless it would have been unreasonable to ordinary use of land.
– Robinson v Kilvert (1889)

• The creators of the nuisance
– Fennel v Robson Excavations Pty Ltd (1977)
– Hargrave v Goldman (1963)
– De Jager v Payneham & Magill Lodges (1984)

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

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

What ’ s the difference??

•
Silservice Pty Ltd v Supreme Bread Pty Ltd
•
Harper v GN Haden & Sons (1933)

• 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

• 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

of the Gold Coast
“ 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

• 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

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

• Statutory authority
– York Bros v Commissioner for Main Roads
(1983)
• Consent

• 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]

PRIVATE
NUISANCE
PUBLIC NUISANCE