THE LAW OF TORTS
WEEKEND SCHOOL 2
Negligence: Introduction
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:
– 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 possible to
frame an action in both trespass and
negligence on the same facts
• Williams v. Molotin (1957) 97 CLR. 465.
NEGLIGENCE
INTRODUCTION
NEGLIGENCE AND FAULT IN
TORTS
FAULT
INTENTION
NEGLIGENCE
TRESPASS
CARELESS
NEGLIGENCE
the action
Negligence: The Elements
Duty of care
Negligence
Breach
Damage
What is Negligence?
• It is the neglect of a legal duty
• It involves the three elements of
• duty
• breach;
• resultant damage
The CLA: General Principles
• 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.
Negligence: The Early Cases
•Derry v. Peek
• (Steam power-prospectus-mistatment)
• Dicta of Lord Herschell:
• A moral duty that should be converted into a
legal obligation
•Le Lievre v. Gould
• (Surveyor-incorrect certificates-mortgage
payments-losses)
Donoghue v. Stevenson
• Ginger beer-decomposing snail-P has shockgastroenteritis
• No privity of contract between P and D. Issue was
whether D owed P a duty
• Dicta of Lord Atkin
• 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
NEGLIGENCE
• 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
NEGLIGENCE: THE DUTY OF
CARE
• 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.
• The dicta of Lord Atkin in Donoghue v Stevenson:You
must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to
injure your neighbour/another
Negligence: (Duty of Care)
•The Duty of care is the obligation to avoid
acts or omissions which are reasonably
foreseeable to cause damage to another.
•When does one owe a duty of care?
– Whenever one is engaged in an act which he or
she can reasonably foresee would be likely to
injure another person, one owes a duty of care to
that other person
What is Reasonable
Foreseeability?
•Reasonable foreseeability presupposes an
objective or a reasonable person’s standard
•The reasonable person is an embodiment of
community values and what the community
expects of a responsible citizen
•The concept allows us to evaluate D’s conduct
not from his or her peculiar position, but from
that of a reasonable person similarly placed
•Reasonable foreseeability is a question of law
Reasonable Foreseeability: Case
Law
•Nova Mink v. Trans Canada Airlines
[1951] (Air traffic noise causing minks to
eat their young ones-No foreseeability)
•Palsgraf v. Long Island R.R. Co. (1928)
(Railway guards helping falling passengerfireworks explosion causing injury to
plaintiff.-No foreseeability)
•Chapman v. Hearse (1961) (Car accident-Dr.
stops to help-gets killed by another vehicle-action
against D who caused initial accident- Foreseeability
The Scope of Reasonable
Foreseeability
•United Novelty Co. v. Daniels (1949)
(Workers cleaning coin operated machine
with flammable substance-rat in machine
runs into fire place causing fire damage and
death-Foreseeability upheld)
• Jaensch v. Coffey (1984) (Car accidentspouse goes to hospital to see injured partnersuffers shock from what she sees and hears of
husband’s condition-action against D who
caused accident-Proximity-Duty)
DUTY CATEGORIES: To whom
is duty owed?
• One owes a duty to those so closely and directly affected by
his/her conduct that she ought reasonably to have them in
contemplation as being so affected when undertaking the
conduct in question.
• Examples:
– Consumers, users of products and structures
» Donoghue v Stevenson
» Grant v Australian Kitting Mills
» Sullivan v Moody
– Road users
» Bourhill v Young
– Users and purchasers of premises etc.
» Australian Safeway Stores v Zaluzna
Unforeseeable Plaintiffs
• In general the duty is owed to
only the foreseeable plaintiff
and not abnormal Plaintiffs.
– Bourhill v Young [1943] AC 92
– Levi v Colgate-Palmolive Ltd
– Haley v L.E.B. [1965] AC 778
TORTS
Week 5
Breach of Duty
Negligence: The Elements
Duty of care
Negligence
Breach
Damage
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
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
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.”
• RTA v Dederer, Gummow J at [69]:
“What Shirt requires is a contextual and balanced
assessment of the reasonable response to a
foreseeable risk.”
5B General principles
• (1) A person is not negligent in failing to take precautions
against a risk of harm unless:
• the risk was foreseeable (that is, it is a risk of which the person
knew or ought to have known), and
• the risk was not insignificant, and
• 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):
• the probability that the harm would occur if care were not
taken,
• the likely seriousness of the harm,
• the burden of taking precautions to avoid the risk of harm,
• the social utility of the activity that creates the risk of harm.
Shaw v Thomas [2010] NSWCA 169
Bolton v Stone [1951] AC 850
It seems to me that a reasonable
man, taking account of the chances
against an accident happening,
would not have felt himself called
on either to abandon the use of the
ground for cricket or to increase
the height of his surrounding
fences. He would have done what
the appellants did. In other words,
he would have done nothing.
Whether, if the unlikely event of an
accident did occur and his play
turn to another's hurt, he would
have thought it equally proper to
Wyong Shire Council v Shirt (1980) 146
CLR 40
• 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
– 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.”
Rogers v Whitaker (1992) 175
CLR 479
The standard of reasonable care and skill
required is that of the ordinary skilled person
exercising and professing to have that special
skill, in this case the skill of an ophthalmic
surgeon specialising in corneal and anterior
segment surgery
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 occuring 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
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
[1] GENERAL:CAUSATION
Duty of Care
breach
causation
damage
= Negligence
There must be a causal link between D’s
breach of duty and damage to P or P’s
property
Overseas Tankship (UK) Ltd v Morts
Dock and Engineering Co Ltd (The
Wagon Mound 1)
• The facts:
• The rule: the replacement of ‘direct’ cause
(Re Polemis )with reasonably foreseeable’
• It is not the hindsight of a fool, but the
foresight of a reasonable man which alone
can determine liability (per Viscount
Simonds)
CAUSATION: THE ELEMENTS
• Causation involves two fundamental
questions:
– the factual question whether D’s act in fact caused
P’s damage: causation-in-fact
– Whether, and to what extent D should be held
responsible for the consequences of his conduct: legal
causation
CLA s5D : The Two Stage
approach
• (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
THE ELEMENTS OF
CAUSATION
Causation
Factual
(Causation in fact)
Legal
CAUSATION-IN-FACT
• Causation in fact relates to the factor(s) or conditions
which were causally relevant in producing the
consequences
• Whether a particular condition is sufficient to be
causally relevant depends on whether it was a
necessary condition for the occurrence of the damage
• The necessary condition: causa sine qua non
CAUSATION
• To be successful in a claim for a remedy, P
needs to prove that the loss for which
he/she seeks compensation was caused in
fact by the D’s wrongful act
• Traditionally, the test whether D’s
wrongful act did in fact cause the loss is
the ‘but for’ test
Cases
• S 5D is a statutory formulation of the Common Law
(Cox v NSW (2007)) Per Simpson J
– Adeels Palace Pty Ltd v Moubarack (2009): The failure to provide
security guards at New Year party held not to be the cause of the
harm as that would probably not have stopped the gunman from
entering the restaurant
– Barnett v Chelsea Hospital Management Committee: Death
would probably have occurred not withstanding the negligence
of the hospital staff
March v Stramare
• ( Per Mason J)
in truth , the application of the test
proves to be either inadequate or
troublesome in various situations
in which there are multiple acts or
events leading to the Plaintiff’s
injury..
the test applied as an exclusive
criterion of causation yields
unacceptable results and the results
it yields must be tempered my
making value judgments and the
infusion of policy considerations
Difficulties with the ‘But For’
• March v Stramare ( Per Mason J)
– in truth , the application of the test proves to be either
inadequate or troublesome in various situations in which
there are multiple acts or events leading to the Plaintiff’s
injury..
the test applied as an exclusive criterion of causation yields
unacceptable results and the results it yields must be
tempered my making value judgments and the infusion of
policy considerations
A common Sense Approach to
Causation?
• Per Deane, Dawson, Toohey and Gaudron JJ
– The ultimate question must, however, always be whether,
notwithstanding the intervention of the subsequent decision,
the defendant's wrongful act or omission is, as between the
plaintiff and the defendant and as a matter of common sense
and experience, properly to be seen as having caused the
relevant loss or damage.
• Mchugh J
– It is doubtful whether there is any consistent common sense
notion of what constitutes a cause.
Travel Compensation Fund v Robert
Tambree t/as Tambree and Associates
(2005) 224 CLR 627
Beyond the But for test
• The purpose of the
stature or indeed the
Common Law . Under
which it is sort to impose
the obligation is a
relevant factor for
consideration in
causation: See for
instance in March
Stramare
MATERIAL CONTRIBTION
• In general, it is not sufficient for a
plaintiff to show that the negligence
was one of several possible causes;
It needs to be demonstrated that D’s
conduct was the most probable
cause of P’s damage.
• In Common Law, it is also not
enough for P to show that D’s
conduct materially increased the risk
to D. P needs to prove that D’s
conduct materially caused the
damage
MATERIAL CONTRIBUTION
• Chappel v Hart (1998) 156 ALR 517
– Court noted that the Plaintiff must show the
Defendant’s action materially contributed to the
Plaintiff’s injury
Material Contribution: Bonnington
Castings v Wardlaw [1956] AC 613
MATERIAL CONTRIBUTION
• Bonnington Castings v Wardlaw [1956] AC 613
– The plaintiff had a lung disease because of fumes the employer
had exposed him to, plus he had exposed himself to smoke –
issue whether employer had caused the disease?
– House of Lords held: P must make it appear at least that on the
balance of probabilities the breach of duty caused or materially
contributed to his injury
INCREASE IN MATEARIAL
RISK
• M’Ghee v National Coal Bd (1972) 3 All ER
1008
– The P claimed employer’s failure to provide showers to wash
away residue caused his dermatitis - the doctors were not
certain if showers would have stopped the plaintiff
contracting dermatitis D held liable but mainly on policy
grounds
• Wilsher v Essex Area Health Authority
(1988):
– a premature baby negligently received an excessive
concentration of oxygen and suffered retrolental fibroplasia
leading to blindness. However the medical evidence
demonstrated that this can occur in premature babies who
have not been given excessive oxygen, and there were four
other distinct conditions which could also have been
Bailey v The Ministry of
Defence & Anor (2008)
• The claimant aspirated her vomit leading to a
cardiac arrest that caused her to suffer hypoxic
brain damage. There was evidence of negligence
by the medical team
• the question: what caused her to aspirate her
vomit.
– Issue: whether the negligence had "caused or materially
contributed to" the injury
– Held: If the claimant could have established on the balance
of probabilities that 'but for' the negligence of the
defendant the injury would not have occurred, she would
have been entitled to succeed.
– The instant case involved cumulative causes acting so as to
create a weakness so that she could not prevent the
aspiration
INCREASE IN MATERIAL RISK
VERSUS MATERIAL CAUSATION
• “A material increase in the risk of injury by a
defendant is not legally equated with a material
contribution to the injury by a defendant.
However, in some circumstances if it were
proved that the defendant did materially
increase the risk of injuring the plaintiff then
the court might infer causation, i.e. that the
defendant’s negligence materially contributed
to the injury (Wallaby Grip (BAE) Pty Ltd (in
liq) v MacLeay Area Health Service )
The effect of Woolworths v Strong
[2010] NSWCA 282
• The question asked by
the Court of Appeal in
determining causation
was: would the accident
not have happened if the
Defendant had an
adequate system of
cleaning in place
Kavanagh v Akhtar
• Facts:a Muslim woman who was physically
injured while shopping was forced by the
medical condition she had to then cut her
previously long hair… Husband rejects her
causing her to suffer depression
– In any event, the possibility that a person will
desert a partner who has been disfigured in the
eyes of the deserter is sufficiently commonplace
to be foreseeable (Per Mason J)
• It was not necessary that the defendant
should have foreseen the precise nature of
the consequences of his act. In the present
case, the plaintiff’s psychiatric illness was
foreseeable
Chapman v Hearse; Jolley
V Sutton
• The place of intervening acts in causation
• Jolley v Suttton
– P then aged 14, sustained serious spinal injuries
in an accident. It arose when a small abandoned
cabin cruiser, which had been left lying in the
grounds of the block of flats, fell on Justin as he
lay underneath it while attempting to repair and
paint it. As a result he became paraplegic.
– D held liable; what must have been foreseen is
not the precise injury which occurred but injury
of a given description. The foreseeability is not
as to the particulars but the genus.
Causation principles under
the CLA: s5D (2)
• In determining in an exceptional
case, in accordance with established
principles, whether negligence that
cannot be established as a necessary
condition of the occurrence of harm
should be accepted as establishing
factual causation, 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
REMOTENESS OF DAMAGE
THE ELEMENTS OF
CAUSATION
Causation
Factual
(Causation in fact)
Legal
CLA s5D : The Two Stage
approach
• (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" ).
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
Case Law on Remoteness
• Earlier position in Common Law
– Re Polemis:- the ‘directness element’
• The current position:
– The Wagon Mound (No. 1)
– The Wagon Mound (No. 2)
Re Polemis and the significance
of Wagon Mound
• "the defendant did not know and could not
reasonably be expected to have known that [the
oil] was capable of being set afire when spread
on water".
• But if it would be wrong that a man should be
held liable for damage unpredictable by a
reasonable man because it was "direct" or
"natural," equally it would be wrong that he
should escape liability, however "indirect" the
damage, if he foresaw or could reasonably
foresee the intervening events which led to its
being done; cf. …. Thus foreseeability becomes
the effective test.
• After the event even a fool is wise. But it is not
the hindsight of a fool; it is the foresight of the
reasonable man which alone can determine
responsibility. The Polemis rule by substituting
"direct" for "reasonably foreseeable"
consequence leads to a conclusion equally
illogical and unjust.
CLA 5D(4)
• (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.
Characterizing the Damage:
• What degree of specificity the P’s damage
should be foreseeable.
– The more broadly characterised the damage is, the more
easily it can be foreseen.
– Hughes v Lord Advocate [1963] AC 837
» Where a plaintiff’s injury is foreseeable, but the injury
is caused in a unique way or manner which could not
have been foreseen, the result is within the chain of
proximate causation and that element of negligence is
satisfied.
Hughes v Lord Advocate [1963] AC
837
The postal employees held
to be negligent even
though the specific
accident that occurred
wasn't foreseen
Where a plaintiff’s
injury is foreseeable,
but the injury is
caused in a unique
way or manner
which could not
have been foreseen,
the result is within
the chain of
proximate causation
and that element of
negligence is
Doughty v Turner Manufacturing [1964] 1
QB 518 Distinguished
The English Appellate
Court found that the risk
of the negligence was
from splash, but there was
no splash. Any subsequent
events were not
foreseeable, and therefore
outside of the scope of the
risk, and there was no
breach of duty.
Mount Isa Mines v Pusey (1970) 125
CLR 383
• P develops "severe type of mental disturbance
including disturbance of thought, disturbance
of mood and disturbance of behaviour and
personality” after assisting with injured
colleagues in the D’s mines. The colleagues
subsequently died. Issue as to whether P could
claim
Per Windeyer J
• Sorrow does not sound in damages. A plaintiff in an
action of negligence cannot recover damages for a
"shock", however grievous, which was no more than
an immediate emotional response to a distressing
experience sudden, severe and saddening. It is,
however, today a known medical fact that severe
emotional distress can be the starting point of a
lasting disorder of mind or body, some form of
psychoneurosis or a psychosomatic illness. For that,
if it be the result of a tortious act, damages may be
had. [3]
• A man is culpably negligent if he failed to take
measures, reasonably available, to obviate a risk
"which would occur to the mind of a reasonable man
in the position of the" defendant "and which he
would not brush aside as far-fetched". [7]
Rowe v McCartney [1976] 2
NSWLR 72
• Facts: the D asked the P whether he could drive her
powerful car. The P agreed and was a passenger in the
car which the D drove negligently, striking a telegraph
pole which resulted in the D becoming a quadriplegic.
The P suffered minor injuries but suffered a mental
illness as a result of feelings of guilt about allowing the
D to drive the car.
• Held: The mental illness suffered by the P was not
reasonably foreseeable nor was it the same kind or type
of injury that was reasonably foreseeable in the
circumstances. The court said that the type of mental
illness that would have been reasonably foreseeable was
one arising from nervous shock from seeing or hearing
about the injury or another or shock or worry about her
own injury.
Nader v Urban Transit Authority of
New South Wales (1985) 2 NSWLR
501
• Facts: P was a 10 yr old boy who was injured while
alighting from moving bus. He developed a rare
psychological condition, which was argued to have
resulted from his parents’ unusual response to the
accident.
• I think that it was certainly foreseeable that an
accident to a 10 year old boy would bring about a
reaction from his parents. If the plaintiff’s condition
is attributable either in whole or in part to the
attitude of the parents, I think that is open for the
consequences of the defendant’s negligence which was
within its reasonable foresight. A defendant is liable
even for indirect damage which is the product of
consequences which an be reasonably foreseen: the
Wagon Mound (No 1)
Rowe and Nader
• McHugh J
– it would be a mistake to see Rowe as deciding that mental
illness as the result of guilt feelings is damage different in
kind from mental illness arising from nervous shock or as
the result of or in association with physical injuries.
– Nader:
» Eggshell skull rule: the court must take the boy as he
was, with unusual parents, (see judgment of McHugh
JA with whom Samuels JA concurred)
Kavanagh v Akhtar
• The respondent was injured while shopping at the
appellant's premises. A heavy box containing
perfume fell on her as it was being passed between
two employees of the appellant. The respondent
sustained injury to the left shoulder, left arm and
jaw. As a result of these injuries, she was no longer
able to care for her extremely long hair. Some
months after the accident, she had her hair cut short.
Her husband reacted with extreme hostility to the
cutting of her hair, leading to severe stress on the
marriage and finally, separation. The respondent
sustained psychiatric injury as a result of the failure
of the marriage.
Kavanagh v Akhtar: Per Per
Mason J
– In any event, the possibility that a
person will desert a partner who has
been disfigured in the eyes of the
deserter is sufficiently commonplace to
be foreseeable
–It was not necessary that the
defendant should have foreseen
the precise nature of the
consequences of his act. In the
present case, the plaintiff’s
psychiatric illness was foreseeable
The Issue of Culture
• The evidence suggests that the upset was due to at
least two factors. The first was extreme displeasure
based on what he perceived as defiance of his
scripturally-based right of control over his wife as
well as her defiance of religious injunctions about
women cutting their hair without permission of
their husband (as confirmed by evidence given by
an Imam). The respondent's husband was a very
religious Muslim who prayed five times a day and
attended the mosque on Fridays.
• Secondly, the husband was obviously upset at the
loss of an adornment which had been a source of
sexual attraction. The respondent was unchallenged
in her evidence that her husband married her "for
her beautiful hair".
The Egg Shell Rile and Remoteness:
Dulieu v White & Sons [1901] 2 KB
669
The “egg shell skull” principle
makes a defendant liable for
damage of an unforeseeable extent,
but not for unforeseeable damage
of a different kind.
P, then being in a state
of pregnancy, was
behind the bar of her
husband's pub.
Servants of D
negligently drove a
pair-horse van into the
pub. P sustained a
severe shock and was
seriously ill and
subsequently gave
premature birth to a
child. As a result of the
Dulieu v White & Sons [1901] 2 KB
669: Per Kennedy J
• It may be admitted that the plaintiff … would
not have suffered exactly as she did, and
probably not to the same extent as she did, if she
had not been pregnant at the time; and no doubt
the driver of the defendants' horses could not
anticipate that she was in this condition. But
what does that fact matter ? If a man is
negligently run over or otherwise negligently
injured in his body, it is no answer to the
sufferer's claim for damages that he would have
suffered less injury, or no injury at all, if he had
not had an unusually thin skull or an unusually
weak heart.
Commonwealth v McLean (1996) 41
NSWLR 389
The plaintiff was a seaman on HMAS
“Melbourne” on 10 February 1964 when it
collided with and sunk HMAS “Voyager”
(the collision). In 1995 he brought an
action in the Supreme Court to recover
damages. His case was that as a result of
his experiences on the night of the
collision, he suffered post- traumatic
stress disorder (stress disorder). As a
result over the next thirty years and more
he drank alcohol and smoked tobacco,
both to excess, which caused him to
develop a throat cancer. Psychological
injury by D led to excessive tobacco and
Commonwealth v McLean (1996)
41 NSWLR 389
• Where a plaintiff suffers further damage as a
consequence of foreseeable initial damage, the further
damage will be too remote unless it was of the same kind
as the initial damage (the “egg shell skull” principle), or
was itself reasonably foreseeable.
• Where injury to a plaintiff results from a noxious
substance or situation and only some of the exposure was
caused by the defendant's breach of duty, the court may
find that the defendant is responsible for the injury if the
defendant's contribution was significant, even when the
breach was an indirect cause of the exposure and the
defendant was under no specific duty to take care to
prevent that type of injury.
• “… damage can only be recovered if the injury
complained of was not only caused by the alleged
negligence but was also an injury of a class or character
foreseeable as a possible result of it.
INTERVENING ACT
• An intervening act breaks the chain of causation
and may relieve D of liability. To be sufficient to
break the chain, it must either be a:
– human action that is properly to be regarded as voluntary or a causally
independent event the conjunction of which with the wrongful act in or
omission is by ordinary standards so extremely unlikely as to be turned a
coincidence ( Smith J Haber v Walker [1963] VR 339
INTERVENING ACT 2
• A foreseeable ‘intervening act’ does not break the chain of
causation
– Chapman v Hearse
• Negligent medical treatment subsequent to negligent injury would
not necessarily remove liability for D1 unless the subsequent
injury was ‘inexcusably bad’, so obviously unnecessary or
improper that it fell outside the bounds of reputable medical
practice
– (Mahony v J Kruschich Demolitions)
THE LAW OF TORTS
Week 11
Vicarious Liability
Introduction: Personal
Liability
• In tort law liability is generally personal; ie, liability is
generally linked to a breach of one’s (own) duty
• There are however instances where a party may be
held liable for torts committed by another: vicarious
relationship
91
THE NATURE OF VICARIOUS
LIABILITY
What is Vicarious Liability?
• Liability of D (usually the
master/employer) for the
torts of another (usually
his or her
servant/employee)
although the master is
without any blame or
fault.
93
Distinctive Features
• It is liability for the
wrongful act of another.
• It is a form of strict
liability. D may be liable
without proof of fault on
D’s part
94
Types of Vicarious Relations:
Master Servant Situations
95
Partnerships
96
Principal and Agent Relations
•An agent acts for the principal; but the
liability of the principal for the act of the agent
is not based on vicarious liability
•The liability of the principal is based on the
maxim: qui facit per alium, facit per se
•The agent acts in a representative capacity
and has the authority to act for the principal
but is not necessarily a servant
97
What are the factors which create the
relationship of employer and employee?
The Employer-Employee
(Master-Servant) Relations
• An employer is vicariously liable for the
tortuous acts or omissions by his
employee in the course of employment
whether or not such act or omission was
specifically authorised by the employer.
99
The Rationale for Vicarious
Liability
• Respondeat superior: Traditionally, the common law viewed
the master as responsible for the servant’s conduct:
• "for seeing somebody must be a loser by (because of the
conduct of the employee), it is more reason that he that
employs and puts a trust and confidence in the (employee)
should be a loser than a stranger". Per Earl of Halsbury in
Lloyd v Grace, Smith & Co
• Choice and training of employees: Liability tends to provide
a spur toward careful selection, training and supervision of
employees;
• Benefits and the burden: Since the employer receives the
benefits of the activities of the enterprise, he should also
bear its burdens;
• The ability to pay: Liability increases the likelihood of
100
accident victims receiving compensation
What is the difference between a
“contract of service” and a
“contract for services” ?
SERVANTS AND
INDEPENDENT CONTRACTORS
• Vicarious liability arises only in respect of the
torts of the servant
• The master/employer is therefore responsible
only for the torts of the servant and not the
independent contractor
• For the master/employer to be held liable,
the tortfeasor must:
– be a servant, and
– commit the tort in the course of his
or her employment
102
WHO IS A SERVANT?
• A servant is one who is under a contract of
service to another; an independent
contractor is under a contract for services
• The contractor is paid for the job by results
rather than for time spent; he /she receives a
fee or commission, the servant receives
wages
• The contractor is usually employed on a
casual basis, the servant on a permanent
basis
• The contractor usually specifies his/her work
schedule and supplies his/her own103tools
Independent Contractor Clauses
• Sample Clause:
– For the avoidance of doubt, this Agreement and any
engagement between the parties shall not constitute a
contract for services. XXXXX shall be under no obligation to
offer or provide work to XXXX, and XXXXXXXX shall be
under no obligation to agree to provide services to XXXXXX
outside the terms of this Agreement.
Sample Clause
• XXXXXX hereby employs PPPP as an Independent
Contractor, and PPPP hereby accepts such employment
• As an Independent Contractor PPP shall provide on an "as
needed" basis the following services:…
• As an Independent Contractor PPPPPP may engage in
other business activities provided, however, that PPPPP
shall not during the term of this Agreement solicit
XXXXXX’s employees or accounts on behalf of the PPPPP
or another entity
• PPP is an Independent Contractor and nothing contained
in this Agreement shall be deemed or interpreted to
constitute the Independent Contractor as a partner, agent
or employee of XXXX, nor shall either party have any
authority to bind the other.
Substance versus Form/Label
•Note that while the agreement
between the parties and the label
they use to describe their
relationship may have some
evidentiary value, the courts
ultimately look at the substantive
elements of the relationship rather
than the label the parties use to
describe their agreement
Some Substantive Elements in
the Relationship
• Control:
–
–
–
–
•
•
•
•
•
•
•
Hours of work
Place of work
Type of work
choice of workers
Payment
Public perception
supply of equipment
the skills required
Taxation, GST and superannuation issues
Casual or permanent
whether employee is permitted to work for others
WHO IS A SERVANT?:
THE CONTROL TEST
• In general, if the Master controls what the
employee does and how it is done, then the
employee is generally a servant. The
relationship will give rise to Vicarious Liability.
• The nature and extent of control will depend
on the nature of the work
108
Zuijis v Wirth Bros:
• The specialized nature of a
job does not necessarily
imply that the worker is an
independent contractors
• What is essential is not actual
control, but the right to
control.
• Professionals may exercise
their own judgment and
discretion on how to perform
their tasks However, if the
authority to command
remains in incidental or
peripheral matters such as
hours of duty then one is a
servant
Stevens v Brodribb Sawmilling Company Pty
Ltd : The totality of the relationship
• Mason J:
– A prominent factor in
determining the nature of the
relationship between a
person who engages another
to perform work and the
person so engaged is the
degree of control which the
former can exercise over the
latter. It has been held,
however, that the importance
of control lies not so much in
its actual exercise, although
clearly that is relevant, as in
the right of the employer to
exercise .
• … The approach of this Court has been to regard
it merely as one of a number of indicia which
must be considered in the determination of that
question… Other relevant matters include, but
are not limited to, the mode of remuneration, the
provision and maintenance of equipment, the
obligation to work, the hours of work and
provision for holidays, the deduction of income
tax and the delegation of work by the putative
employee
Wilson and Dawson JJ at [11]
The other indicia of the nature of the relationship
have been variously stated and have been added to
from time to time. Those suggesting a contract of
service rather than a contract for services include:
• the right to have a particular person do the
work,
• the right to suspend or dismiss the person
engaged,
• the right to the exclusive services of the person
engaged and
• the right to dictate the place of work, hours of
work and the like.
Wilson and Dawson JJ
• Those which indicate a contract for services
include:
– work involving a profession, trade or distinct calling on the
part of the person engaged,
– the provision by him of his own place of work
– or of his own equipment,
– the creation by him of goodwill or saleable assets in the
course of his work,
– the payment by him from his remuneration of business
expenses of any significant proportion and
– the payment to him of remuneration without deduction for
income tax.
Wilson and Dawson JJ
• Having said that, we should point out that any
attempt to list the relevant matters, however
incompletely, may mislead because they can be
no more than a guide to the existence of the
relationship of master and servant. The ultimate
question will always be whether a person is
acting as the servant of another or on his own
behalf and the answer to that question may be
indicated in ways which are not always the
same and which do not always have the same
significance
Hollis v Vabu Pty Ltd [2001]
• Riders wore uniform: "DRIVERS
SHOULD ALWAYS BE AWARE THAT
THEY ARE A DIRECT
REPRESENTATION OF THE COMPANY.
THEIR ATTITUDE AND APPEARANCE
CAN ONLY BE SEEN AS A DIRECT
REFLECTION OF OUR
• Couriers were not providing
skilled labour or labour which ORGANISATION.”
required special qualifications.• Vabu superintended the couriers' finances:
• This suggests that their engagement by
• Deterrence: Holding the
employer vicariously liable for Vabu left the couriers with limited scope
for the pursuit of any real business
the wrongs of its employee
may encourage the employer to enterprise on their own account.
take such steps, and hence, • Although a better employer may have
reduce the risk of future harm. born the cost of bikes and repairs, capital
• Control: Vabu retained control outlay was small and bikes also provide
of the allocation and direction means of transport to get to and from
work.
of the various deliveries.
Borrowed Servants
• Instances of borrowed services:
– The general (ie regular) employer leases (out) a vehicle or equipment
such as crane, power shovel, bulldozer, truck etc with employee as
operator, to a party (special employer) who has a temporary need for
such machinery. Employee commits a torts by the negligent operation
of machinery
– The general employer as his business provides temporary workers to
other parties (special employers), sometimes simply as day laborers,
sometimes as skilled workers for specified periods of time.
– The general employer, by an agreement with the special employer
assigns the employee to work for the special employer for a specified
period on secondment or attachment etc
116
The Test in in the case of
Borrowed Servants
• The transfer or loan of an employee to the
special employer is not intended to terminate
the employee’s employment with the general
employer.
• An employee is presumed to continue in the
employment of the general employer. P or the
general employee carries the burden of proof
where there is an allegation that the special
employer has assumed control and become the
principal employer
• The test is control
– Mersey Docks & Harbour Board v Coggins &
Griffith
117
WHEN DOES ONE ACT IN
THE ‘COURSE OF
EMPLOYMENT’?
‘IN THE COURSE OF
EMPLOYMENT’
• D is liable only if the servant
committed the tort in the course of
his or her employment
• Whether the torts is committed in
the course of employment or not
turns on:
– What tasks are authorized
– Whether the employee’s tortuous act
are so connected to authorized tasks
that it can be seen as a mode of carrying
out the task albeit wrongfully
119
Comcare v PVYW [2013] HCA 41
• Ms PVYW was sent to a country town by her
employer to conduct budget reviews and provide
training. As she was required to stay overnight, her
employer booked her into a hotel.
• Having finished work for the day and at a loose
end, she called a friend who lived in the town for
dinner. After the meal, they went back to her hotel
room, where they also had sex. A glass light fitting
above the bed was pulled from its mount, falling on
Ms PVYW and injuring her nose and mouth,
sending her to the hospital.
• She then made a claim for workers' compensation.
The issues
• The question for the High Court was a simple
one: Is an injury (no matter what caused it)
within the “course of employment” if it occurs:
• during an interval or interlude within an
overall period or episode of work; and
• at a place the employer has induced or
encouraged the employee to spend that interval
or interlude at; and
• in circumstances where there is no disentitling
behaviour (such as gross misconduct or the
injury being self-inflicted)?
The Right Approach?
• determine if the employee suffered injury, but not
while engaged in actual work;
• if so, what was the employee doing when injured?
(the employee must have been either engaged in an
activity or present at a place when the injury
occurred);
• how was the injury brought about?
• if it occurred at and by reference to the place (eg. a
wall collapses on an employee), the question is: did
the employer induce or encourage the employee to
be there?
• when an activity was engaged in at the time of
injury, the question is: did the employer induce or
encourage the employee to engage in that activity?
Acting in the course of employment
Criminal Act of Employee does not necessarily take
conduct outside the scope of employment.
Ffrench v Sestili: Sestili & Triton Underwriting Insurance
Agency [2007] SASC 241
• Theft of ATM funds held to be within scope of
employment
•“The means to effect the fraud was ascertained …in the
course of her employment”
•Was “so closely connected with the duties of caring…”
for severely disabled victim.
•“Vulnerability of person being cared for…”
Torts Week 11
123
New South Wales v Lepore
• 3 cases heard together of teachers employed by
school authority sexually abusing pupils.
– At issue: whether the intentional criminal conduct of the
servant comes within ‘scope of employment’
– . An act of intentional, criminal wrongdoing, solely for the
benefit of the employee, may be easy to characterise as an
independent act; but it is not necessarily so, and there are
many examples of cases where such conduct has been found to
be in the course of employment.
Lapore
• An employer is vicariously liable for a tort
committed by an employee in the course of his or her
employment. The limiting or controlling concept,
course of employment, is sometimes referred to as
scope of employment. Its aspects are functional, as
well as geographical and temporal. Not everything
that an employee does at work, or during working
hours, is sufficiently connected with the duties and
responsibilities of the employee to be regarded as
within the scope of the employment. And the fact that
wrongdoing occurs away from the workplace, or
outside normal working hours, is not conclusive
against liability
• There were six separate judgments in Lepore.
• Only Gummow and Hayne JJ concurred.
• Only McHugh J dissented.
Century Insurance Co Ltd v Northern
Ireland Road Transport Board
• Facts: the driver of a petrol truck was
transferring petrol from the truck to an
underground tank at a garage. While doing this,
he lit a cigarette and threw the lit match onto
the floor. The result was a fire and the filling
station burnt down.
• Held: The driver’s employers were held
vicariously liable as the act was done in the
course of his employment even though he was
not authorised to smoke while loading tanks
with petrol.
Phoenix Society Inc v Cavanagh
(1997)
• Facts: a drunken bus driver collided with a car
and injured the plaintiff who was driving the
car. The bus driver had been specifically
warned by her employer not to drink and drive.
• Held: The employer was nevertheless held to be
liable for her negligent act.
• Note: To be ‘during the course of employment’
and thus render an employer liable, an
employee must be undertaking the negligent
activity as part of their employment,
irrespective of whether the employee has been
specifically instructed by the employer not to
undertake the negligent behaviour.
Deatons Pty Ltd v Flew (1949) 79 CLR
370
• Facts: Mrs. Barlow
was a barmaid She
claimed P was
drunk, insulted her
and slapped her.
She threw a glass of
beer at him and he
became blind in
one eye. P argued
that throwing beer
was incidental to
her employment.
Dixon J in Deatons Pty Ltd v
Flew
• In my opinion, however, it is clear that, upon the case
made for the plaintiff, a finding could not be
supported that the barmaid acted in the course of her
employment so that the defendant company would be
vicariously liable. For upon the plaintiff's case the
assault was as unexplained as it was unprovoked
and might have proceeded from private spite on the
part of the barmaid or from some other cause quite
unconnected with her occupation or employment.
• The truth is that it was an act of passion and
resentment done neither in furtherance of the master's
interests nor under his express or implied authority
nor as an incident to or in consequence of anything
the barmaid was employed to do.
In the Course of Employment
Will the employer be liable for tort in contravention of the
prohibition?
•An act in defiance of a prohibition which LIMITS THE SPHERE
OF EMPLOYMENT will be OUTSIDE the scope of employment employer not liable
•An act in defiance of a prohibition which deals with CONDUCT
WITHIN SPHERE (ie: how, when, where etc tasks are performed)
OF EMPLOYMENT will not be outside the scope of employment employer is liable
Bugge v Brown (1919) 26 CLR 110
•A prohibition as to manner…time…or place …or as to the very act
itself…will not necessarily limit the sphere of employment
•To limit the sphere of employment the prohibition “ must be such
that its violation makes the servant’s conduct ..so distinctly remote
and disconnected from his employment…”
Torts Week 11
131
Employer prohibitions
• Bugge v Brown (1919)
– Facts:Worker was to be supplied with cooked meat at work but the cook
had left and the wife gave him meat and potatoes, sauce etc and a frying
pan to cook with. It was considered then necessary that he eat meat. He
went to cook it and a fire resulted with damage to the neighbour’s land.
– Issue: whether the act of employee, in lighting the fire on 27th December
1917 in McDonald's paddock for the purpose of cooking his midday meal,
was within "the course of his employment," or was an act entirely outside
the relation of master and servant, and therefore to be regarded as the act of
a stranger.
– Held: this was negligence but not a frolic of his own, it was within his
employment. While he lit the fire somewhere he was told not to was not
sufficient to remove liability of the employer.