Torts - Exam Notes (1) 294g39

Renee’s Torts Notes 033: Elements: 1. An act or omission by D 2. Infringement of an interest of P recognised by law as being worthy of protection against an infringement of that sort, created by an act or omissions of that sort, and 3. Giving rise to a civil action for damages ‘Act’ must have been voluntary (tortfeasor must have intended the act but it is not necessary that the tortfeasor intended to inflict the damage resulting from the act). Act or omission generally requires fault. i.e. No liability without fault. D must have acted intentionally, negligently, or recklessly. Cf strict liability, where D is liable even in the absence of intention, reckless, negligently. Interest protected: May not have a right of action even if damage occurs – Damum absque injuria (damage without injury – damage without any legal wrong) A person may have a right of action although they have suffered no injury. – injuria sine damno (legal harm without actual damage) No right to privacy –Victoria Park Raceway v Taylor. A case of damage w/o injury. A person may have a right of action w/o damage. Absolute rights, actionable per se. (Tres) Interest affected Phys Integrity

Tort Battery

Nature of infringement Direct, un(neg.battery)/intentional Indirect/unintentional

Remedy Nom, Damages, punitive

Direct/intentional

Compensatory damages Nominal, Compensatory

Indirect/unintentional

Compensatory

Compensatory aggravated,

Negligence Mental integrity

Assault Nervous (negligence)

shock

Reputation

Defamation

Personal Liberty, freedom Right to use land, air, sea

False Imprisonment

Direct/un/intentional

Compensatory, Exemplary, aggravated Nominal, Compensatory

Tres to land

Direct/intentional

Nominal, compensatory

Nuisance

In/direct/intentional

Negligence

Indirect/unintentional

Nominal, Compensatory, self help, injunction Compensatory

Compensation: to compo losses to P in their legally protected interests. Focus on conduct of D and harm to P Loss shifting: a principal function of torts is to shift the loss from the innocent victim to the wrongdoer. Individual liability theory – individual D bears the loss, enterprise liability theory – large organizations eg: employer should bear the loss for torts of employees. Spreading: shift from innocent party to wrong doer. Spread through no-fault schemes (i.e. Vic roads) Deterrence: effect reduced to availability of insurance. Remedies: Nominal (if not actual damage), Compensatory (actual losses, med, damage), Aggravated (hybrid of compensatory / exemplary) (for indignity, hurt feelings, disgrace, humiliation), Exemplary/punitive (punish D if shows a contumelious disregard for P rights), Contemptuous (a derisory amount indicating the court’s low opinion of the P’s claim)

Definition Elements

TRES NEGLIGENCE Intentional or negligent act of D which directly Failure of D to take reasonable care to prevent causes an injury to the P’s person or property foreseeable harm to the P’s person, property or without lawful justification economic interests Intentional or negligent act (D must only intend Duty of care (be reckless or negligence) act not damage) Breach Injury must be direct Damage/Loss caused by Breach and not too remote Injury to P’s person or property No lawful justification

DIRECT (Scott v Shepherd) Nature of action INTENTIONAL OR NEG. ACT Fault based or strictFAULT BASED liability

INDIRECT OR CONSEQUENTIAL ACT OMISSION. UNINTENTIONAL FAULT BASED * May be direct/unintentional if negligent tres.

OR

Onus of Proof

P proves direct interference with right & thenP has the burden of proving all the elements i.e. onus shifts to D to disprove fault i.e. neither intentionalon P throughout or negligent except for highway cases where onus remains on P throughout Venning v Chin Actionable per se(no need to prove damage)

P must show actual damage

Assault, Battery, False Imp, Tres to Land Causes of Action

Negligence, Nuisance and Defamation

TRES TO PERSONS Tres to the person: The wrongful, direct and intentional interference with persons: McHale v Watson. Three types: False Imprisonment, Battery, Assault. All are actionable per se. ASSAULT Assault is the intentional or negligent act or threat by D that directly places P in reasonable apprehension of an imminent physical interference with him/her, or the person of someone under his or her control w/o lawful justification. (threat of battery) Gist is apprehension and actual knowledge. Elements: Proves direct threat, then D must disprove fault. 1) Direct threat by D. Words/conduct or both. Did D issue a threat to P: Stephens v Myers (1830). There must be the means to carry out the threat? Conditional threats may be harmless by the words of D (clear intention not to batter): Tuberville v Savage; A cond’l threat will not constitute assault unless the offered alternative is an unacceptable command: Police v Greaves. If the threat is a suggestion of assault at a future time, and there is no way for the victim to escape b/c at the mercy of the tortfeasor until the threat can be carried out, then it will be assault. Zanker v Vartzokas. 2) Intention: to cause apprehension 3) Apprehension of Imminent harmful conduct: Apprehension is to anticipate physical w/ the fear or in the knowledge and expectation that it will happen. Focus is on the mind of P not on whether the D was actually going to follow up the threat BUT the D must have an actual or apparent present ability to carry out the threat. Brady v Schatzel. Must be aware of assault. Doesn’t have to be afraid. Apprehension means to anticipate imminent body . Obj Test: The threat must be sufficient to be able to raise apprehension in the mind of a reasonable person. Unless the D is aware of the P’s particular vulnerability e.g timid Imminent: if someone calls you from overseas then not imminent. Brady v Schatzel 4) W/o Lawful Justification: To be proved by D; Intent to carry out the threat is irrelevant. Hall v Fonecca. Words alone will be assault if they directly raise in the mind of the P the apprehension of an imminent battery by the D Barton v Armstrong (telephone threats). 1) a.

b. c. d.

Defences: Lawful justification to be proved by D Consent: McNamara v Duncan – Did not consent to blow after mark outside of rules of game. If playing sport, an amount of is consented to, but smtg intentional and outside rules will be battery: Giumelli v Johnston. Provocation: Fontin v Katapodis: right to defend self but no right to take it further – provocation is not available to reduce compensatory damages, but is available to reduce exemplary damages. Self defence: Fontin v Katapodis – SD must be proportional to threat. Medical necessity: every surgical procedure is battery unless it is authorised or excused by necessity: Marion’s Case: But does not apply where the patient has given a certificate of refusal.

e.

Inevitable Accident: wasn’t voluntary, intentional and took all reasonable care to avoid. Public Transport Commission of NSW v Perry (epileptic fit and fell on railway) f. Defence of Others g. Discipline: Parents and teachers can use reasonable force to discipline children. h. Emergency/Necessity: Act must be reasonably necessary to protect person or property. Urgent situation of imminent peril. Mouse’s Case – threw engers bags overboard to lighten ship in storm. Held ‘necessity’ in saving lives. Cant kill another to save yourself – R v Dudley & Stephens. Hunger is not an excuse for stealing, homelessness isn’t for tres – Southwark London Borough Council v Williams i. Mistake: intent to create apprehension is necessary. Hall v Fonececa Medical Emergencies: Amputated leg of trapped unconscious victim to free him Re F. But competent adults can refuse consent even if refusal means death. But doctors can give a blood transfusion to a minor even if the parents refuse if it’s necessary to save the life. s20 Transplantation and Anatomy Act 1979 (Qld) Hostility is not a requirement but can make an otherwise permitted a battery. Also its presence may affect the amount of damages awarded to P D’s motive to commit the act, however beneficent does not affect its tresory character’ Murray v McMurchy Extra surgical procedures for benefit of P were still battery. Remedies: Nominal damages. If no actual harm. Compensatory: If P can show actual damage. Aggravated: If P can show unconscionability. BATTERY The direct, intentional physical interference without lawful justification: Innes v Wylie. Advantage over crim charge is that the standard of proof is the lesser balance of probs and an award of damages is available to P. Onus: D will be liable for battery if P can show a direct interference and (shift:) D cant disprove fault. Elements: Gist is Physical interference 1) Direct: The to P must be a direct result of D’s act, but D doesn’t have to come into with P: Scott v Shepard (1771)– fireworks, by two people. 2) Intentional: or reckless or negl. Voluntary act=intentional, Duncan v McNamara. The conduct must be active, not mere ive obstruction: Innes v Wylie. 3) Physical Interference: There must be : Innes v Wylie 4) Defences: Lawful justification to be proved by D j. Consent: McNamara v Duncan – Did not consent to blow after mark; outside of rules of game. If playing sport, some is consented to, but smtg intentional and outside the rules will constitute battery: Giumelli v Johnston. k. Provocation: Fontin v Katapodis: right to defend self but no right to take it further – provocation won’t reduce compensatory damages, but may reduce exemplary. l. Self defence: Fontin v Katapodis – SD must be proportional to threat.

m.

Medical necessity: every surgical procedure is battery unless authorised or excused by necessity: Marion’s Case: But SD does not apply where the patient has given a certificate of refusal. n. Inevitable Accident: wasn’t voluntary, intentional and took all reasonable care to avoid. Public Transport Commission of NSW v Perry (epileptic fit and fell on railway) o. Defence of Others p. Discipline: teachers to what is reasonable, Parents and teachers can use reasonable force to discipline children. q. Emergency/Necessity: Act must be reasonably necessary to protect person or property. Urgent situation of imminent peril. Mouse’s Case – threw engers bags overboard to lighten ship in storm. Held ‘necessity’ in saving lives. Can’t kill another to save yourself – R v Dudley & Stephens. Hunger is not an excuse for stealing, homelessness isn’t for tres – Southwark London Borough Council v Williams Medical Emergencies: Amputated leg of trapped unconscious victim to free him Re F. But competent adults can refuse consent even if refusal means death. But doctors can give a blood transfusion to a minor even if the parents refuse if its necessary to save their life. s20 Transplantation and Anatomy Act 1979 (Qld) r. Mistake is NOT a defence P does not need to know battery is being committed. Where asleep or under anesthetic – ‘the affront is as serious to the P when he or she discovers it after the event as if the P had been conscious of it at the time’ Is every unwanted a battery? The must be offensive outside the accepted usages and accidental s of daily life e.g. not an everyday occurrence, Collins v Wilcock Hostility is not a requirement but can make an otherwise permitted a battery. Also its presence may affect the amount of damages awarded to the P. D’s motive to commit the act however beneficent does not affect its tresory character’ Murray v McMurchy Extra surgical procedures for benefit of P were still battery. Remedies: Is actionable per se allowing nominal damages even if no damage. The violation of being touched without consent is sufficient but if actual harm then remedies include COMPENSATORY for actual damage, AGGRAVATED for conscious and contumelious disregard for P’s rights OR EXEMPLARY DAMAGES to punish and deter the D. Examples of Battery:  Punching another  Shining a light in someone’s eyes  Spraying water on another  Using a weapon/implement to strike another e.g. stick, shooting a bullet,  An unwelcome kiss  Snatching a book off another  Doctor giving treatment without consent  Using a 3rd party’s body to touch another

FALSE IMPRISONMENT (FI) D will be liable if P can show the wrongful total restraint on the liberty of P directly caused by the intentional, reckless or negl act of D w/o lawful justification. Onus: P must show interference (deprivation of liberty) then D must disprove fault Elements 1. Wrongful: Against will of P. P need not be aware of restraint Murray v Ministry of Defence. Meering v Graham White Aviation: P asked to wait in room for an interview, but real purpose was not said. A guard was outside the closed door and intended to stop him if he left, held to be FI. But fact that not aware of restraint at time may affect recoverable damages Myer Stores Ltd v Soo. 2. Total Restraint of Liberty of P: 2.1 Physical Restraint. No reasonable means of escape without injury or serious inconvenience. R v Macquarie (FI when left on boat, swim was serious inconvenience), Burton v Davies (moving car; unreas to jump) Bird v Jones (bridge blocked was obstruction, not FI b/c had options) or 2.2 Means of escape not known to P. Robinson v Balmain Ferry Co (not FI b/c had knowledge of way out) 2.4 Psychological: P must have submitted to D’s power. It is not necessary for D to use force. Words alone may be enough if P fears the imminent and direct force if they don’t submit. 2.4.1 Coercion if sufficient: Symes v Mahon (told by police they had warrant to arrest, felt he had to comply, even though they had the wrong person) 2.4.2 Fear of public humiliation sufficient: Myer Stores v Soo – Soo mistaken for a shoplifter and surrounded by security guards who ‘requested’ that Soo accompany them to the office for an interview; when Soo attempted to protest guards insisted; held: total restraint b/c of public embarrassment. 3. Directly Caused by D: D can affect P personally or through agency of 3 rd party. May be ive act, ie failing to release prisoner Cowell v Corrective Services P only need show the fact of tres: Williams v Miloton. The onus then shifts to D to disprove. 4. Intentionally, Recklessly, or Negligently: Cowell’s Case 5. Without Lawful Justification: Defences: 1. Consent: But P can withdraw consent i) Herd v Weardale: If P consented to it through the course of his employment he cannot claim FI; the question arises, what did the parties agree was within the course of employment. Balmain New Ferry v Robinson 2. Statutory Authorisation and justification 3. Inevitable accident 4. Self-defence 5. Defence of property 6. Necessity Mistake is no defence Cowell v Corrective Services Remedies FI is actionable per se a) Injunction – if the tort is proved continuing

b) Damages: i) Nominal: if not damage b/c actionable per se ii) Compensatory: for suffering loss of freedom iii) Aggravated – where loss of dignity or humiliation: Myers Stores v Soo iv) Exemplary – unconscionable conduct which requires punishment. Bahar v Marwest Hotel DEFENCES TO TRES Consent: may be conditional and can be withdrawn at any time. Halliday v Nevill, Plenty v Dillion, Herd v Wardale. Elements for valid consent: 1. Must be in relation to the act complained of – McNamara v Duncan 2. voluntary – R v Williams (Fraud), Latter v Bradell (Duress), Norberg v Wynrib (CANADIAN unequal power Doctor/patient) 3. by a competent person (child who has reached age of sufficient understandingGillick’s Case) 4.with knowledge ie must consent to nature and character. R v Williams. Sporting Activities: implied consent to blows within rules McNamara v Duncan, implied consent to common infringement Guimelli v Johnston, No consent to deliberate acts of violence Canterbury Bankstown v Rogers Necessity: Act must be reasonably necessary to protect person or property. Urgent situation of imminent peril. (refer to battery [q]). Inevitable accident: wasn’t voluntary, intentional and took all reasonable care to avoid. Public Transport Commission of NSW v Perry (epileptic fit and fell on railway) Self Defence: Where immediate danger of imminent violence may use such force as is reasonably necessary to protect one self. McClelland v Symons. Force must not exceed what is reasonably necessary to fend off attack Fontin v Katapodis. Defence of Property: land and chattels can be defended by reasonable force. Bird v HolBrook. Discipline: Parents and teachers can use reasonable force to discipline children. Contributory Negligence: is not generally a defence to intentional torts. May operate if tres is negligent. Shin Case TRES TO LAND The intentional, reckless or negligent act of D, which directly interferes with P’s exclusive possession of land w/o consent or lawful justification. Protects right to exclusive possession. It is actionable per se at the suit of the person having an immediate possession – Entick v Carrington

3. Exclusive Possession: protects actual exclusive possession or occupation of land not ownership. De facto possession is enough – Newington v Windeyer (as long as you exercise proprietary rights over the land). But ownership may help establish possession Ocean Estates v Pinder (growing veggies) Profit a prendre – ‘a right to take is sufficient’ for action: Mason v Clarke (rabbit snares; Clarke interfered w/ that interest). Right to exclusive possession, a construction company may have his right while working on a site: Concrete Constructions v BLF. 4. Land: What is reasonably necessary for the enjoyment of the land. Bernstein of Leigh (Baron) v Skyviews (planes taking pictures overhead not tres, but repeated flights might be nuisance), Graham v KD Morris & Sons (Crane overhanging, Crt ordered injunction/damages), LJP Investments v Howard Chia Investments. Bendal v Mirvac Project - not if actually interferes but if at a height that MAY interfere 5. Defences: Mistake is not a defence to tres to land. i. Consent: D must prove consent. Implied: to enter property, eg retrieve ball, stepping on property to avoid a parked car, going to front door to talk to occupant. – Halliday v Nevill. (extends to entry by police for the purpose of questioning or arresting OF OCCUPANT) Plenty v Dillon (P had expressly revoked consent to enter his premises, held tres by officers who entered to serve summons, b/c could have posted summons instead; tres unnec.) For lawful purpose: Lincoln Hunt Australia v Willessee (offer to public to visit his premises was limited to clients and public bona fide seeking info or advice, didn’t extend to unwanted visitors, ie robbers, intrusive film crews), Rinsale v ABC (P granted injunction based an blatant disregard of property rights). Withdrawl of consent: Cowell v Rosehill Racecourse (licence to enter can be withdrawn and after allowing reasonable period to get out, you can remove them) Halliday v Nevill (Locked gates, signs etc) Limited license: Right to enter limited in scope. Entry unrelated to the right is tres of premises: Barker v R (where left to look after house and stole). Where license is conditional, and breach of conditions, then tres: Konsiker v Goodman ii. Abatement of nuisance by self-help: can tres on land to stop a nuisance in case of emergency: Jones v Williams

Elements: Onus of proof is on P to show direct interference then shifts to D to disprove fault.

iii. Necessity: requires public utility – Winfield v Jolowicz may tres on land to save a life – Sherrin v Haggerty

1. Voluntary Act: either negligent or intentional; Onus is on D to prove absence of intention or negligence. Must be intentional or negligent act: Public Transport NSW v Perry. Not voluntary if thrown by someone else – Smith v Stone 2. Direct interference: Must be direct or physical: Davies v Bennison (shot cat) Not limited to entry by a person – can be transient things projected over or in land: Davies v Bennison. Includes failure or refusal to leave the land (after reasonable time). Continues until rectified. Interference - As long as it interferes w/ what you might want to do, does not matter whether it does interfere with use/enjoyment: LJP Investments v Howard Chia Investment; Davies v Bennison – where bullet was fired overhead, Graham v KD Morris - where crane jig was overhanging. Gazzard v Hutchesson (tree).

iv. Statutory Authority: SA to tres must be thorough and clear and unambiguous language – general language is insufficient: Coco v R Remedies / Damages: Actionable per se – nominal damages. Compensatory damages (Where natural consequence of the tres available: Hogan v Wright), Aggravated – for conscious and contumelious disregard of P; for affront and indignity Exemplary: to punish. Injunction (must prove balance of convenience in favour of P and that common law damages are inadequate),

Self help: if withdraw consent must allow a reasonable time to leave and then may remove with no more than reasonable force (danger of battery). NEGLIGENCE P will have an action in Negl. if P can show on the balance of probabilities (Barnett v Chelsea & Kensington Hospital) that a duty of care was owed by D, that D breached that duty causing P’s loss, which was reasonably foreseeable/not insignificant. Elements: Onus is P throughout. D to show defences 1.

A duty of Care owed to P: Is it RF that any kind of carelessness by D might cause some damage to P or a class of person to which P belongs?

Established Classes/Categories: 1) Road s: Broadhill v Young 2) Driver/enger: Cook v Cook 3) Doctor/Patient: Rogers v Whitaker 4) Employer/Employee: Chaplin v Dunstan Ltd, Smith v Charles Baker 5) Occupier/Invitee: Heaven v Pender 6) Manufacturer/Consumer: Donoghue v Stevenson (PI and consequential nervous shock) Novel Categories: if not an established category then need to look at analogous cases. Different cases give rise to different problems in determining the nature and scope of a duty of care. Identify the type of harm then consider the characteristics of the conduct and the nature of the relationship – Sullivan v Moody. Need to balance P’s interest in protection from harm with D’s interest in freedom of action. – Kirby, Gummow Tame,Annetts. Pure Nervous Shock – No physical impact A. Originally only claimable if consequent upon P’s own injuries Victorian Railway v Coultas B. Extended to those present in ‘zone of danger’ and placed in fear of personal injury Dulieu v White C. Actually present and/or injury/endangerment of close relative + rescuers Hambrook v Stokes. D. Then extended to those who experienced the immediate ‘ aftermath’ involving a loved one. Jaensch v Coffey (both went to hospital) E. Secondary hearsay victims Hancock v Wallace (never attended accident or hospital, 3rd party communication sole source of info. Father and son had very close relationship), Annetts Elements: Australian Stations v Annetts 1. Recognised Psychiatric Illness 2. D ought to have reasonably foreseen that a person of normal fortitude might have suffered a recognised psyc illness if reasonable care was not taken. 3. In determining foreseeability balance the following factors a. Was mental harm suffered as a result of a ‘sudden shock’ (don’t exclude if absent, not an accumulation overtime.) b. Was P at the scene or in the aftermath, and witnessed with unaided senses (Hearing is sufficient: Petrie v Dowelling – went to hospital, did

not see, but told child dead; Hancock v Wallace – not at accident, not at hospital told over the phone. Seeing: Alcock – it is insufficient to see it on T.V. if individuals cannot be identified, limited to those present. Aftermath: Jaensch v Coffey – only saw victim go into operating room; Spence v Percy – aftermath limited by time; victim after 3yr coma is to far removed in time; Alcock- identification at morgue is not. c. Pre-existing antecedent relationship btw P and D (main factor in Annetts) d. Nature of relationship btw P and the victim. (close ties and affection, Hancock) e. Gruesome factor to P (identifying mutilated body etc Annetts, Hancock) Statutory Modifications: Law reform act 1994: Parent/ Spouse of person negligently injured or killed has an automatic right. Other family must be at the scene. Motor Accidents Act 1988: Only injured driver enger or person present or immediate relatives at scene of the accident can claim Omissions (Nonfeasance) – Liability of Governments and Statutory Authorities: No general liability for omissions: - Stovin v Wise Exceptions: Pre-existing protective relationships: Teacher/Student Richards v Vic. E’er/E’ee Paris v Stepney Borough Council. Occupier/Visitor – Romeo v NT Conservation Comission, Prison Authorities – L v Cth. Duty to prevent 3rd party harming P: Parents to control children Smith v Leurs. (no breach b/c tried to stop child; It is not a guarantee of safety, but an obligation to act reasonably under the circumstances), Curmi v Mclennan – parent liable because gun was readily available to child; Hotel has duty to patrons Chordas v Bryant (no breach b/c no prev. indicative violent behaviour) Wormald v Robertson: hotel liable because offender had been complained about. Statutory Authorities: Key Principles per McHughJ, Crimmons and Barclay Oysters v Ryan 1. Is it reasonably foreseeable that any kind of carelessness by the SA might cause some damage to P or a class of person to which P belongs? If no, then no duty 2. Was the SA in a position of control over P or a class of persons to whom P belongs rather than the public at large? if no, then no duty (Pyrenees: council owed duty to ensure fire hazard repaired. Brodie) 3. Was P vulnerable? Ie couldn’t protect own interest, if no then no duty 4. Did D know or ought to have known that there was a risk to P or class of person including P rather the public at large? if no, no duty. 5. Would such a duty impose a liability in respect of the policy making or quasi-legislative functions? If yes, no duty (Gleeson, is this a justiciable issue, Sep of Powers) 6. Is there any supervening policy reason that denies the existence of a duty of care? If yes, no duty (Sullivan v Moody, No DOC to TP parents by doctors. To find a duty would be to conflict with other rules in existence. Eg Paramount duty to child based of Statute) 7. REFER TO TEMPLATE ON INFORMATION ON Crimmins v Stevedoring Industry Finance Committee

Is there a duty to exercise powers: a) Pyrenees Council v Day: Council failed to follow up an order directing tenant to have fire place fixed. Fire broke out and damage neighbours. Council owed duty to neighbours b/c i)Council had specific knowledge ii)power to prevent it iii) P was vulnerable; so power to prevent amounted to duty. b) Perre v Apand P/L: P may recover if: i) A particular class of people at risk ii) class is vulnerable and unable to protect itself iii) it was only a minor variation on the rule the required property damage (incremental approach). c) (Barclay’s) Ryan v Great Lakes Council: No absolute duty owed by SA; Was a policy decision to decide how the oyster industry was to be regulated. The council’s ultimate control and regulation of the industry was insufficient to a private duty of care to the plaintiffs; also, no reliable test for Hep A. d) Sutherland Council v Heyman: Specific Reliance i) when SA acts in such a way as to lead P to believe that it will exercise powers for his benefit, and then P acts to his own detriment in reasonable reliance. Mason J- General Reliance; SA is liable where it ought to forsee: i) P reasonably relies on D performing the function and taking care not to do so; ii) P will suffer damage if D does not take care. Is there a duty to exercise reasonable care: Sutherland Council v Heyman: no duty exists when making policy decisions, but duty exists when operational decisions. The level at where the decision is made determines if it is policy/operational. Policy involves finance, social and political decisions. Duty may be applied to action/inaction involving istrative decision, professional opinion, tech standards or gnrl stdrds of reasonableness. Land Managers: Nagle v Rottenest Island Authority: P hit submerged rock. Held: duty owed and breached. Occupier promoted area for swimming, should have at least erected a sign, deterring diving. Wilmot v Sth Aust: Duty to trial bike riders not breached b/c never promoted use of tracks. Also policy decision not to close off tracks. Romeo v NT Conservation Commission: 15yo fell down cliff. Held; no duty fence where danger is obvious not hidden. Care should be assessed with reference to nature of the land, extent of use and character of people who enter. Duty should only change when authorities’ own positive conduct creates a risk of injury or special relationship arises. Adopted the common sense approach. Saroukas v Sutherland Council: Diver injured, duty breached because signs erected were not in pictorial form and diver could not understand them. Found not liable Elements: 1. RF 2. Relationship btw parties/pos’ns occupied at time. 3. Nature of D’s conduct/lack of 4. Nature of P’s harm/degree of vulnerability 5. What was the purpose of the legislation

Pure economic Loss: The Dredge Willemstad- Pipeline belonging to primary victim ruptured, P normally used the pipeline and recovered costs for alternate means of delivery even though he had no suffered physical damage. P won because D had peculiar knowledge that P in particular would suffer economic loss, not merely a class of persons. Driver to father of dead enger – Hancock v Wallace Employer to parents of dead e/ee – Australian Stations v Annetts Doctor to parents of patients for psychological injury – NO duty – Sullivan v Moody Solicitor/Beneficiary in will. Owed a duty to testator because their interests coincided. Hill v Van Erp: 2.

Breach of that Duty: A person is considered to have breached their duty of care when their conduct falls below that expected of reasonable person in the same position as the defendant – Bligh v Birmingham Waterworks Company

Standard of Care: The standard is that of a reasonable person in the same position as D Objective test modified with subjective elements 1)

Mental State – No insanity; P was insane but judged on the basis of an ordinary, sane person. Adamson v Motor Insurance Trust. Stroke (Roberts v Ramsbottom) or coughing fit (Leahy v Beaumont), still negligent. However bee sting (Scholz v Standish – not negl) 2) Age- Minors are judged on their ability to foresee (A 12 yr is judged as a 12yo) Mchale v Watson; But a minor who engages in dangerous adult activities must conform to that standard of a reasonable prudent adult. Old age – shouldn’t place themselves in a position where agility is required 3) Skill- A person must exercise the level of skill they claim to have. Phillips v William Whitely. D will be judged according to a higher degree of skill when he actually possesses that skill level, Stokes v Guest, Keen & Nettlefolds. A doctor must give warnings if the patient attaches significant risk to it (1/14000 dam to eye). Rogers v Whitaker. Doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible medical body, even though other doctors accept a different practise. Bolam v Friem Barnet Hospital: “The Bolam Test” not consistently used in Oz. 4) P’s Peculiar Knowledge & Consensual Relationship with D: The SOC changes with the r/ship btw P & D; the r/ship is modified by P’s knowl: Cook v Cook – normally personal skill is irrelevant, but P knew that D was learning to drive, so D’s SOC was that of a reasonable learner driver. It is irrelevant if D did everything they thought necessary if a reasonable person might have done more

‘A risk of injury that is remote in a sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. Ie a risk that is not far fetched or fanciful is real and therefore foreseeable (Wagon Mound)’ – Wyong Shire 2) Was the response of D to this risk reasonable (The Burden of Taking Precautions)?: Need to balance the magnitude of the risk against the burden of taking precautions. Ie Did D’s conduct fall below that standard: Calculus of Neglect (Bolton v Stone) 1) Probability of occurrence: The risk of injury must have been foreseeable, not far fetched or fanciful: Wyong Shire Council v Shirt, Wagon Mound. Would it occur to mind of a reasonable person Bolton v Stone. Nagle v Rottenest foreseeable risk 2) Seriousness of Harm/Gravity – Greater the risk of harm to P the greater the precautions required to be taken by D – Paris v Stepney Borough Council 3) Justifiability/Utility of D’s act – Social vs. Ind’l utility – if D acted for ind. utility then breach factor. Emergency vehicles (social utility), did D exercise reasonable care in all circumstances. Is there a social utility which overrides failure to take precaution: Watt v Herfordshire City Council (unsecured jack transport; saving lives) 4) Burden of taking Precautions: Onus is on P to show there were reasonable measures available to D; if shown, onus shifts to D to show they were unreasonable/impractical in the circumstances: Caledonian Collieries v Spiers. Romeo v NTCC (don’t need sign where obvious risk). The cost of precaution as a whole is relevant: Wyong Shire Council v Shirt; Nagle (signs are low cost) 5) Professional/Customary/Statutory Standards: Common Practice isn’t a defence; Thomas v Smith: Shipbuilders. Breaking statutory standard is evidence of neg but not proof. Tucker v Mcann: Breaking road rules. 6) Dangerous nature of activity: Acceptance of risk by P – Agar v Hyde (trill from power), Willmot. Obvious nature – Woods v Multi-Sport 7) Current state of knowledge of D about risk 8) Anticipation of carelessness of others: need to take into that people may not take proper care for themselves – Nagle, Bus v Sydney City Council. However trend towards ind. Responsibility. “Occupier is generally entitled to assume that most entrants will take reasonable care for their own safety” Kirby, Romeo 9) ??Burnie Port Authority v General Jones: In some cases the risk will be so high, that the SOC will amount to a virtual guarantee of safety, giving rise to a non-delegable duty to take reasonable care (subcontractors). Virtually strict liability. 3. 4.

Has Standard been Breached: 2 Tier Test: Wyong Shire Council v Shirt 1) Was the risk of injury to the P reasonably foreseeable (Magnitude of Risk)?: ‘Reasonable foresight that the kind of carelessness by D might cause some kind of damage to P, or a class of persons including P.’

Damage: Did P suffer actual damage? Damage is gist of negligence

Causation: Having established that D was neg, P must also show on the balance of probs that D’s neg caused the injury: Barnett v Chelsea & Kensington Hospita (Arsenic; would have died anyway)l. P must prove a relationship btw their damage and D’s breach. Did D’s carelessness on the balance of probs. materially contribute to, or increase the harm to P. But for’ D’s wrongful conduct, there wouldn’t be this damage – Barnett. BF Test insufficient in cases where there are multiple causes. March v Stramare.

i)

‘But for’ test. Merely establishing P to be at the scene of the acc is insufficient to establish a causal connection, unless it materially increases the risk of i. - McKiernan v Manhire 1) McKiernan v Manhire: Where P tripped in the hospital while recovering from her primary injury suffered as a result of D’s neg, held that tripping could’ve occurred anywhere, it was not caused by being at the hospital. 2) Pyne v Wilkenfield: D held to have caused further injuries when P tripped while wearing neck brace. D had increased the risk, b/c P had to wear brace. 3) Queensland v Keeys: An officer suffered NS after being shot at, held failing to warn him of the threat made against the unit, the comm’r had materially increased the risk of serious injury, cause if officer had known, would have taken precautionary measures.

ii) Where there are multiple causes, for P to discharge the onus of proof, he must show one of them is the material cause: Bonnington Casting v Wardlaw: Fumes had materially contributed to P’s disease. Non-tortious and tortious(e/er liable for) fumes were inseparable. Court drew conclusion in P’s favour McGhee v National Coal Board: (dermatitis from brick kilns, e/er didn’t provide showers) If D’s breach creates a risk and injury occurs within the area of that risk, then D should be liable. Wilsher v Essex Area Health Authority: Rejects material cause test and states that must prove fault causing damage. Explained McGhee as another favourable inference finding for P Australian Position: Bennett v Minister of Community health, Chappell v Hart: used McGhee. Is the later subsequent event the very kind of thing that you would expect to happen. Is 2nd event RF as result of 1 st. (wont be Novus actus interveniens) iii) Current Australian Position, the “Legally Significant” test: a more complicated BF test. They ask, a) was it a legally significant cause of the damage, b) about effects on/from policy considerations, and c) if the hazard was increased by D’s actions (“What harm is it that D owed a duty to guard against?”). iv)Where D pleads Novus actus interveniens: A new intervening act breaks the chain of causation: If the subsequent injury is a predictable consequence of the primary injury and was likely to occur even without the intervening act, this defence can not be relied upon to protect from subsequent injury: Adelaide Chemical v Carlyle – Where P was burnt by acid, then did not follow medical advice resulting in further serious infection. This was NAI, in that the free and voluntary act of Carlyle led to the result, breaking the chain of causation. Subsequent intentional action of a third party. The Oropesa – O negl, hit P’s ship. P sent lifeboat to see O. lifeboat sunk, and P’s son died. P sued O saying if wasn’t for your negl we wouldn’t have sent lifeboat to see you. O argued your decision to send boat over breached chain. Held doesn’t break chain if it is exactly the type of incident that you would expect to happen. And after accident it is RF that they would send someone over.

Subsequent negligent conduct of a third party, the chain will be broken unless the third party’s negligence was RF. i) Chapman v Hearse – where a doctor attending a crash was struck by a car driven negligently by a third party, held that it is RF that a volunteer will be injured by another’s neg during a rescue. ii) Bennett v Min comm. Welfare Where D failed his duty to seek legal advice for P who was injured in a state ward, and subsequent to his release P received incorrect and neg legal advice about right to comp from D. Held 3P’s negl advice was not intervening act, because the reason it had to be sought in the first place was because of D’s orig neg. iii) Medical negligence: Mahoney v J Kruschich: Worker received negl medical treatment for injury suffered at work due to boss’s negl, held the boss was liable for further complications because it is predictable that negligent med treatment will be given. Neg Med treat only an intervening act when inexcusably bad. (Gross negl) Subsequent Deliberate Conduct by P: Yates v Jones: P injured in car accident, started taking heroin allegedly to ease pain. Held P’s addiction caused by pusher and addict not D. Different if addicted to hospital pain killers. State Rail Authority v Wiegold: P injured at work, receiving workers comp but worried about ing family so started to grow marijuana as alt. income. Sued D for negl causing his imprisonment. Held: D not liable (Kirby dissented saying ‘but for’ was appropriate) Havenarr v Havenaar – Where P became an alcoholic after and accident and sued for it, he claimed it was to relieve pain, held that voluntary consumption of alcohol breaks the causal connection unless there is no other way to relieve pain. Subsequent Negligent Conduct by P: March v Stramare: P drink driving. Where subsequent event is the very thing that D should have taken reasonable care to guard against then the subsequent event is not regarded as a novus actus. The Requirements of proof: Quigley v Cth: P failed to discharge the onus of proving a causal connection between D’s negligence and his injury, because he had not adduced any evidence to show that he would have used the services of a second crew member had he been provided. McLean v Tedman: D bore the evidentiary onus of showing that the suggested system of work was not reasonably practicable because the employees would not have used if it had been provided. 5. Remoteness ***Wyong v Shirt To recover, P must show that the damage suffered, is not too remote in law: Previous test: D will be liable for al damage that was a direct result of P’s Negligence. – Re Polemis Current Test: Is it reasonably foreseeable (not far fetched or fanciful – Wagon Mound) that the kind of carelessness by D would cause the kind of damage to P or class of person to which P belongs – Hughes v Lord Advocate: Further the extent of the damage or the precise manner of damage is irrelevant. ***Civ Liab Act 2003: RF  “Not insignificant”.

Kind of Damage: The precise concatenation of events need not be RF. So long as the individual events are foreseeable, don’t have to RF the exact same sequence – Chapman v Hearse (Dr run over by H after stopping to help C, who negl injured himself. Held C liable for Dr injuries as well) Take broad approach. Ie burns, not burnt by explosion of lamp (Hughes v Lord Advocate) Versic v Conners: D negl driving caused P to flung out of car. P’s head became stuck in cutter and due to rain he drowned. Held D liable b/c even though drowning is not a foreseeable risk of careless driving, death itself is foreseeable. Nadar v Urban Transit Authority: After an accident the boy develop psych illness partly from over-protectiveness of parents. Foreseeable that an accident to a 10yo would bring about a reaction from his parents and even if his condition was party attributable to their reaction, this was itself foreseeable. Egg Shell Skull Rule: Smith v Leech Brain - If P has shown the damage was reasonably foreseeable, then D is liable for any consequential damage which results because of P’s peculiarities. Richard v Victoria: Teacher failed to stop fight, boy knocked on head resulting in paralysis because of pre-existing condition. D liable 6. Defences: To be shown by D Contributory Negligence: Where P’s own carelessness contributes to the damage suffered. Partial defence – allows for apportionment of damages (s.10 Law Reform Act 1995) P’s negligence need only contribute to the harm not the accident – Froom v Butcher (was it a cause of the damage not accident) Elements: 1. P was at fault/negligent: P conduct was below the standard of care (Bligh v Birmingham) Children: can be CN but reduced standard of care – McHale v Watson, Bligh v Bligh (b/c told not to play with electricity)  McHale: kids engaged in dangerous adult activities conform to reasonable standards of adults. Momentary thoughtlessness by employee: distinguish mere inattention or inadvertence. Commissioner for Railways v Ruprecht: P lost legs when stepped onto railway line without looking. Held: P was not CN due to such things as inattention born of familiarity and repetition and the man’s preoccupation with the matter at hand. Failure to observe statutory regulations, highway rules: Breach of rules is not conclusive as to whether P is liable for CN. Sibley v Kias – You may be negl even if comply with standard (e.g. if should have slowed down; in wet dark conditions should travel below speed limit. NO seatbelt or helmet, will be CN is it contributes to damage) – Froom v Butcher. Agony of the moment; sudden emergency rule: if D’s negl places P in a position of choice btw 2 dangers the reasonableness of P’s acts is judged by weighing the degree of inconvience and risk to which P was subjected by D’s negl against the risk P took to escape it – Caterson v Comm for Railways. (held not CN when jumped from train to get back son who was left behind; train was going slowly enough to justify jumping [per Gibbs CJ]) Also: Shelley v Szelley: P said D was being negligent by veering off the road, in spite of P grabbing the wheel. P didn’t know the tire was flat! D smiled when he expressed concern. D couldn’t succeed with respect to CN, b/c P’s actions were excusable under the circumstances.

2. Causation: damage must be a RF consequence and contributed to by P’s negl. Causal link btw P’s negl conduct and P’s damage – Gent-Diver v Neville 3. P’s injury must be within the area of risk created by P’s negligence. Jones v Livox Quarries – Standing in the position on the back of the excavator increased the risk of his receiving injury in the way he did and P should have foreseen this. Apportionment of Damages: If P is CN then % split based on responsibility of each party in departing from the reasonable person standard and comparison of the relative importance of their respective acts in causing actual damage – Pennington v Norris. Can’t have 100% reduction – Wynbergen v Hoyts Corporation. Volenti Non fit Injuria: P consents to the risk of injury. voluntary assumption or risk. Compete defence. D must prove that P perceived the existence of risk; fully appreciated the danger and that P voluntarily accepted risk: Smith v Baker &Sons. 1. Perceived existence of danger: D must establish that P had knowledge of the facts creating the risk. Smith v Baker and Sons – P consented to dangerous work but not to rocks falling on him from a crane. ICI v Shatwell: P explicitly and repeatedly told not to test explosive the wrong way, but did so. D successful on Volenti 2. Fully appreciate the scope of the risk: D must show P accepted the risk of negl. Must be acceptance and physical (injury) and legal risks (lack of reasonable care) –Rootes v Shelton Water skier accepts dangers of sport but not negligence of driver/watcher. Raineri v Raineri: (learner driver) no volenti b/c accepted risk of inexperience but not carelessness 3. P voluntarily assumed risk: Nettleship v Weston - Consent must be real free and voluntary. Rescuers: It is foreseeable that a person will come to the rescue; volenti cannot be used as against a rescuer. Moral obligation means they aren’t free to choose Haynes v G Harwood & Sons. Implied consent: Intoxicated drover/engers 1. P sober and knew D intoxicated – P volens the risk (consents) Insurance Commissioner v Joyce, Roggenkamp v Bennett Volenti in both cases. 2. P knew D was going to get intoxicated – P may volens the risk 3. P too intoxicated to appreciate risk – P not volens but may be contributory negl. Exclusion Clauses: if the r/ship between P/D did not arise from contract, the exclusion clause is irrelevant: Maclay v Moore, Birch v Thomas Illegality: t illegal enterprise- Is the act causing injury sufficiently associated with the criminal conduct – Smith v Jenkins 1) The fact that P is acting illegally is no absolute defence to negligence: Henwood v Municipal Tramways Trust – child’s head out window, against statute, r/f so no defence on illegality 2) Illegality affects the relationship btw parties and may negate existence of DOC: Gala v Preston 3) t criminal enterprise is a r/ship of special nature that does not give rise to a DOC. Italiano v Barbaro. 4) Cases of illegality in safety problems give no reason why DOC can be negated. Progress Properties Ltd v Craft:

7. a) b)

Remedies: Might be affected by whether P mitigated their loss. Compensatory Damages, for actual damage suffered Exemplary Damages, to punish D, if shows a conscience and contumelious disregard for P’s rights. c) Aggravated Damages for hurt feelings, indignity humiliation etc But ‘For Test’ ACTIONS IN NUISANCE Unreasonable and substantial interference with use and enjoyment of land. Need actual damage. Indirect i) Intentional ii) Unintentional. Right to privacy is not protected in nuisance – Victoria Park Racing v Taylor – No right to freedom from view PRIVATE NUISANCE – Private Land Onus on P to prove interference. Onus on D to prove action reasonable. Else P to prove elements then D to prove defences Private nuisance – is an unlawful interference with the use and enjoyment of land Hargrave v Goldman P must show: 1. Title to sue 2. Interference with recognised legal right 3. Unreasonable and substantial interference with land 4. Damage must be reasonable foreseeable

e) Contributory negl. Unlike to succeed. Substantial: Walter v Selfe – interference with physical comfort of human existence is judged ‘not merely according to elegant or dainty modes of living, but according to plain and sober and simple notions.’ Bamford v Turnley – Allow for ‘give and take’. One nights sleep may be substantial – Munro v Southern Dairies Unreasonable: Property damage is prima facie unreasonable – Halsey v Esso Petroleum. Court balances the right of enjoyment versus the defendant’s desire to undertake the activity – the ‘rule of give and take’. Objective test – Walter v Selfe. Bamford v Turnley factors: i) Locality: Mckenszie v Powley, St Helens Smelting – Different standards for residential/industrial areas ii) Timing: Activitty in CBD cons nuisance during bus hours: Wherry v KB Hutcherson whilst activity in a residential area constitutes nuisance after bus hours: Seidler v Luna Park Reserve Trust, Munro v Southern Dairies iii) Duration: long=nuisance, Work that is of a temporary nature is generally held not to be a nuisance: Harrison v Southwark. However even if it is temporary, if it is at an unreasonable time then it will be held a nuisance: Andrea v Selfridge Co.

Elements: 1) Locus Standii: P must have a proprietary interest in the land: Oldham v Lawson; Licensee (UK says no – Hunter v Canary Wharf (1997), Aust cases before 1997 have said yes, relying on overturned UK case of Khorasandjian – Deasy Investments v Montest so might change) but licensor/lessor is.

iv) Precautions taken by D: has D taken steps to eliminate nuisance

Who can be sued:  A person who creates a nuisance – Fennel v Robson Excavations doesn’t have to be owner  Authorises a nuisance – De Jager v Payneham & Magill Lodges Hall Hired out hall for function, liable for nuisance b/c hired out the premises for a purpose involving a special danger of nuisance  Adopts a nuisance – Sedleigh-Denfield v O’Callaghan  Knew or ought have been aware of nuisance – Torette House v Berkham weren’t liable b/c neither aware nor by reasonable diligence could have discovered the conditions and the possible nuisance.

iii) Sensitivity of P: Must show that an ordinary person would have been affected. ‘Eggshell skull rule does not apply’; If affects an ordinary person, then the special damage caused by the sensitivity is recoverable: Robinson v Kilvert; Mckinnon Industries v Walker.

2. Interference with recognised legal right:  The land itself in its natural state  Property or chattels associated with the land,  The right to enjoy the land.  Privacy not legally recognised interest: Victoria Park Racing v Taylor; but Plenty v Dillon: (obiter) watching and besetting. 3. Nature of interference. Must be Substantial and unreasonable. The interference can be physical damage or interference with enjoyment, eg noise, smells.

6) Remedies: a) Injunction: where continuing nuisance; if damages are inadequate and balance of convenience in favour of P. b) Damages: compensatory for past harm only. Reduction in property value is not recoverable, not considered to be ‘material damage’ to property. for special damage as a result of undue sensitivity. Possibly Aggravated or exemplary. c) Self Help: Abate a nuisance (cost cannot be recovered) – person’s tree overhanging the house – can cut branches as long as give back: Lemmon v Webb. But cant lean over fence. Tres for abatement only allowed in emergency. If no emergency should give notice, if want tres to abate. PUBLIC NUISANCE Actionable by private individuals in tort only if they suffer special and particular damage over and above the rest of the public. Defn: An activity that materially affects the reasonable comfort and convenience of a class of the public by interfering with a public or common right: AG v PYA Quarries: Interest protected: Public rights (clean waterways, blocked roadways, clean air)

v) Motive: Malice: An interference that would otherwise be unreasonable is rendered unreasonable if it is malicious: Christie v Davey ,Hollywood Silver Fox Farm v Emmet

4. Damage must be reasonably foreseeable: Wagon Mound 5. Defences: a) Approaching the nuisance is not a Defence. Stuges v Bridgman . b) Prescription: Privilege to commit a nuisance may be acquired after 20 years continuous exercise - Stuges v Bridgman. Eg: Kate prove that the lighting and the heating have a unreasonable and unsubstantial for twenty years, not only to lucy but to the previous resident. c) Statutory Authority: Provision must apply to the act in question - Allen v Gulf Oil Refining But if duty could have been performed in another way to avoid interference, the defence does not apply: York Bros v Commisioner for main roads. d) Consent: tolerating is not consent

P must show: 1: A class of people affected 2: Locus Standii 3: Interference is unreasonable. Onus: P must establish that there is a nuisance. P must establish causation by D. The onus then shifts to D to demonstrate and excuse. Who can sue? 1. The attorney general as protector of common rights 2. Someone with the attorney generals ‘fiat’ 3. A private P who has suffered special damage above that suffered by the rest if the community. Special interest: P must show that they suffered a ‘particular’ or ‘special’ loss which is different to that suffered by the public at large or which is greater than the loss suffered by the public at large. Special damage can be personal injury, property damage, excessive noise or economic loss. Economic loss Taylor v City of Perth – Council had no power to block highway, so were liable for nuisance and loss to business who was adjacent highway. Inconvenience from an obstruction on highway Boyd v Great Northern Railway Company Doctor held up at crossing for 20 min, suffered pecuniary loss and peculiar damage (loss of time/money) Walsh v Ervin: Farmer who’s path along

road was blocked; held no pecuniary effect. Only inconvenience and delay in having to transport via indirect route. Crowds: Silservice v Supreme Bread – If D’s business attracted crowds could by some reasonable means prevent the damage and he does not adopt those means then he will be liable but note that a D carrying on business in suitable premises and in a normal and proper manner will not be liable for the nuisance caused by a crowd. Ie sale crowds, business would have to offer something more than a normal sale. Elements: 1. D must have a possessory interest in land 2. D must have knowledge of the nuisance to the public 3. D must have the means to abate it 4. D must fail to take appropriate means to abate it

       

Provision of equipment by employer or worker – Hollis v Vabu Is the task ‘ongoing’ or one off The amount of remuneration and how it is paid Does e’er deduct tax and super The hours of work and provision of holiday and sick leave The method of termination How integral are they to the organization Stevenson, Jordan & Harrison v MacDonald & Evans Exclusivity of services - Stevens

3. In the course of employment: includes carrying out their work in an unauthorised or improper manner. – Century Insurance v Northern Ireland Road Transport Board unloading petrol tanker while smoking causing explosion. Possibly broader test of sufficient connection with employment – Lepore, Samin

Defences: Statutory Authority: Authorised by Parl. if duty could have been performed in another way to avoid interference, the defence does not apply: York Bros v Commissioner for main roads.

Express prohibition: If the prohibition merely regulates the mode or manner in which the act is to be performed it is will still within the course of employment Rose v Plenty contrary to instructions milkman used underage labour, was in the course of employment.

Prescription is not a defence in public nuisance

Frolic doctrine: Harvey v O’Dell – workers on unauthorised lunch break caused accident were held to be acting in the course of employment. B/c they were advised not to take lunch with them, implying they would have to go and buy it. Hilton v Thomas Burton – Workers left early held not acting in the course of employment

Remedies: Injunction Damages: Compensatory, Exemplary – Walsh v Ervin, where the nuisance was motivated by malice or a particularly outrageous disregard for public rights. VICARIOUS LIABILITY A secondary, derivative claim not an independent cause of action. Where one person is held liable for the tort committed by another. E/er is liable for the tort of the e/ee committed in the course of employment. Vicarious liability is always strict liability and must be distinguished from personal liability, which requires fault - Not absolute liability. Justification: Hollis v Vabu – need to provide a solvent Defendant. Capacity of e/er to absorb cost of liability through insurance. e/er gets benefit of e/ee service to advance their interest so they should bear the loss incurred within the enterprise. Acts a deterrent to encourage E/er to prevent accidents. Elements: 1. Commission of a tort: applies to all torts not just negligence. 2. By an Employee: Contract of service. Cf to independent contractor who has a contract for services. Multi-factor test: Stevens v Brodribb, Sawmilling Co Ltd  The nature and degree of control the e’er has. The right to control Stevens  The nature of the task undertaken – Skilled/unskilled  The freedom of action given to the worker to perform the task – can worker delegate

Horseplay by servants: Hayward v Georges – Slapping waitress on the back causing her to fall was within the course of employment Cth v Connell – pushing a naval apprentice off bridge in the course of skylarking was with course of empoyment. Wilful torts – Assaults: Poland v John Parr – servant struck suspected theft was within course of employment Petterson v Royal Oak Hotel – barman threw glass – keeping order in bar was within course of employment Deatons v Flew – Barmaid threw glass – private act of retaliatory self-defence not in course of employment Canterbury Bankstown Rugby League Football Club v Rogers: Head high tackle in the course of employment. Wilful torts: Dishonesty by servants: criminal conduct is not necessarily outside the scope of employment. – Morris v Martin & Sons Sexual abuse by teachers: NSW v Lepore, - In determining whether conduct was in the course of employment, it is necessary to look at the nature of that which the employee is employed to do on behalf of the e’er. Does the act have a sufficient connection with the employment. Rich & Samin v State of Qld, minister and D’Arcy – the assaults were independent & personal acts of misconduct by D’Arcy. They were in no sense capable of being regarded as methods of conducting the teaching function, but were done in utter defiance & contradiction of it & his duties as an e’ee of the state.

Justification: It’s a tradeoff btw two innocent parties. The injured party and innocent e’er. NON DELEGABLE DUTY Primary claim, an independent cause of action. Only in Negl. And fault must be proved by P – Rich v Samin, Lepore, Used to justify the imposition of liability on one person for the negl of another to whom the former has entrusted (or delegated) the performance of some task on their behalf. It is a duty to see that care is taken. Elements: P must show 1. negligence by tortfeasor (usually a IC or outsider to company) 2. duty of care owed by D to P Based on nature of relationship, D accepts special responsibility(control), P has a reasonable expectation that care will be exercised (special vulnerability or reliance) E’er/e’ee: Kondis v STA – ind. Contractor (e’er cant be Vicariously liable) operated crane which injured P an e’ee. E’er breached duty to ensure that there was a safe place to work and that IC took care to adopt safe system of work. Hospitals/Patients: Cassidy v Ministry of Health – if their staff are negligent in giving treatment, they are just as liable for the negl as is anyone else who employs others to do duties for him. Roe v Minister of Health – even if not e’ees they are agents of hospital to give treatment. Exception is consultants or anaesthetists selected and employed by the patient himself. Ellis v Wallsend District Hospital – P organised private surgeon to use hospital facilities, hospital not liable for non-delegable duty b/c it had low involvement, just let them use facilities. Samios v Repatriation Schools/Students: Cth v Introvigne – (flagpole hit P) NSW v Lepore, Simon v Qld, Rich v Qld – onus is on P to show fault. Occupiers&neighbours/visitors: Burnie Port Authority v General Jones – D owner and occupier of premises where IC was wielding. O occupied ½ premises to store frozen goods. IC negl caused a fire. Held: D owed P NDD that IC took appropriate care. Note special dependence and vulnerability of P. 3. 1.

breach Provision of competent staff: Harrison v NCB liable if e’er knows e’ee likely to engage in conduct 2. Provision of proper plant, premises and equipment: 3. Safe system of work: General Cleaning Contractors v Christmas - It is not reasonable to expect the individual worker to take the initiative to devise and use precautions. McDermid v Nayh Dredging Co – Also duty to e’er to supervise system in actual operation to ensure a safe system O’Conner v Commissioner for Govt Transport – However no duty of constant supervision if they have provided a safe system.

Justification/Policy considerations:  D is financially responsible person fully aware of its responsibilities towards a class of person to whom P belongs.  D is already vicariously liable for the fault of its own staff and  D will usually have insurance against the vicarious liability

1)

2)

Fair Comment: about a matter of public interest that is made honestly by a person who did not believe the statements to be untrue and is not otherwise actuate by malice. Must be personal opinion and honest. Can be biased or exaggerated so long as honestly held. – Carleton v Australian Broadcasting Corporation

3)

Privilege: Absolute – Parliamentary privilege, ministerial communications, judicial proceedings, communication btw spouses.

4)

Privilege: Qualified – There must be mutuality btw publisher and recipient. Ie the publisher must have interest or duty to publish and the recipient must have an interest or duty to receive it. Interest or duty can by private or public. Matters of public interest. Privilege will fail if publisher is actuated by malice or the publication exceeds what is reasonable.

5)

Consent: Complete defence if it can be established that P in fact agreed to the publication of the defamatory material.

6)

Constitutional Protection: Political communications about a govt or political matter. Publisher’s conduct must be reasonable, publisher mustn’t be aware it isn’t true, and must not be actuated by malice. Lange v Australian Broadcasting Commission

DEFAMATION Slander (verbal or transient) or libel (written or permanent) Aim: protect reputation: To succeed in defamation P must establish 1: Material was defamatory 2: It refers to P 3: It was published 4: D does not have a defence. Who can Sue: any living person, or group of person and corporations. Who can be sued: publisher (communicator) to anyone other than P, TV and Newspapers who distribute or republish the defamatory material. Elements: 1. Defamatory Matter: Did the statement of D in its ordinary and natural sense defame P At CL: A statement of a kind likely to lead ordinary decent folk to think less of a person about whom it is made – Consolidated Trust v Browne. Innuendo can also amount to defamation. 2 types: False (those that can be drawn by any reader) true (appears innocent on its face but defamatory to those with special knowledge) Under Defamation Act 1889 (Qld) s.4(1) any statement which is likely to injure P’s reputation, or P’s profession or trade or which is likely to induce other people to shun or avoid or ridicule P. s5(1) any person who by spoken words or audible sounds, or by words intended to be read either by sight or touch, or by signs, signals gestures or visible representations, publishes any defamatory imputation concerning any person is said to defame that person. Includes both permanent and transitory forms – it does not distinguish between libel and slander. 2. Reference to P: It is not necessary that the statement actually includes the name of the plaintiff, or was intended to defame anyone. Hulton v Jones. Obj test – Would an ordinary reasonable recipient of the statement take it as referring to P 3. Was the statement Published: Communication to anyone other than P. D either intends the words to be heard or read by a TP or they should have foreseen this would occur – Dow Jones & Company v Gutnick. Defamation on internet occurs where material is ed. Defences:

Justification: truth and public benefit – truth in substance and effect. Public benefit requires a value judgment as to whether the public would benefit from the subject being discussed publicly.

Remedies: Interlocutory injunction – to prevent publishing. Must show bal of convenience in favour of P. Damages – Compensatory (for actual damage), aggravated (hurt feelings), exemplary (deterrent). Mitigation: apology or retraction may help mitigate losses though the court cannot order an apology or retraction. Poor reputation before defaming decreases damage. Truth and absence of malice. Defamation Act 1889 (Qld). Civil Liability Act 2003 (Qld) ‘INSURANCE CRISIS’

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They allege a litigation ‘explosion’ and increase in size of claims They allege a crisis in availability and affordability of insurance because of the alleged litigation ‘explosion’. Blame the law and the lawyers SOLUTION  Reform tort to reduce access to litigation and size of claims. – limit who can sue, limit who can be sued, limit the time to sue and limit what can be recovered.

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In other words make it as difficult as possible for injured persons to

sue in tort. Examples of ‘insurance crisis’  Major insurance companies have hit local governments with skyrocketing insurance rates and even cancellations.  Increase in will increase the cost to consumers  ‘Where will the children play?’ -local councils removing play equipment for fear of being sued. But note -accidents are going to happen and councils will not be responsible where no blame. Insurance industry tactics  Insurance companies unhappy with ability imposed by the courts so they have decided to fight on a different front – shift focus to the legislature to improve their position  Fire up the media and politicians with individual anecdotes and horror stories  Newspaper reports publish headlines such as ‘$467,000 for little finger’ which leads people to believe that plaintiffs are ‘winning’ large awards of damages. (Usually no publication of the breakdown of the various components of the award –e.g loss of earnings, medical expenses, pain and suffering, loss of amenities etc) Perceived problems with the common law of torts  The inherent flexibility of the law of negligence – numerous competing policy considerations relevant to the distribution of losses. Factors controlling the limits of liability e.g. ‘duty of care’ ‘standard of care’ ‘Foreseeability’ ‘remoteness’ ‘causation’ are fluid concepts. Negligence goes through periods of expansion & retraction. Insurance industry argues: • outcomes are too unpredictable • There has been a significant erosion of the level of fault required to shift losses & this has been fueled by a culture of blame. Response by government  2002 Commonwealth government appoints an expert – ‘ of Eminent Persons’ – the ‘Ipp ’ to ‘examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury and death’.  The objective was to increase ‘personal responsibility’ and reduce society’s culture of blame Statutory changes to Common law negligence  Establish the criteria for breach

 

Change causation Exclude liability for ‘obvious risks’ and incorporate presumptions of

awareness

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Eliminate proactive duties to warn of obvious risks Eliminate liability for the materialisation of ‘inherent risks

Civil Liability Act 2003 (Qld)  Does not apply where negligence occurred prior to 2nd December 2002.  Section 9 &10 – Standard of Care - Breach  Section 11 – Causation  Section 13 - Meaning of “obvious risk”  Section 14 – Person suffering harm presumed to be aware of obvious risks  Section 15 – No proactive duty to warn of obvious risks  Section 16 – No liability for materialisation of inherent risk

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Section 19 No liability for personal injury suffered from obvious risks of dangerous recreational activities  Section 24 – contributory negligence reduces an award of damages by 100%.  Section 35 – Principles concerning resources, responsibilities etc. of public or other authorities  Section 45 Criminals not to be awarded damages  Section 47 Contributory negligence presumed if the plaintiff was intoxicated at the time of negligence. Review of common law principles  Functions of tort law – compensation & deterrence COMPENSATION/Restorative Justice  Loss shifting – should losses lie where they fall or should they be shifted from A to B? If losses are to be shifted – on what basis?  Loss spreading – spread the losses between a large group of people who contribute s to an insurance fund Options

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No-fault strict liability (shift loss from A to B even where B not at

fault)

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Fault liability ( shift loss from A to B only if B can be shown to be at fault) – current system but limited by recent reforms • No liability - let loss lie where it falls Fault v No-fault • No-fault strict liability (shift loss from A to B even where B not at fault) • Fault liability ( shift loss from A to B only if B can be shown to be at fault) – current system but limited by recent reforms • No liability - let loss lie where it falls  The fault based common law system is a ‘forensic lottery’- legal principles not necessarily uncertain but application of law is fact dependent

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CL lump sum payouts are often inadequate Transactions costs in shifting the loss – time delays and expensive

Lawsuits protect us all  Lawsuits make society safer by deterring culpable manufacturers, polluters, hospitals and others from negligent behaviour.  It does this by way of imposing economic incentives to become safer and more responsible.  Also flow on effect – others hear about the lawsuits and can modify their behaviour Fixing ‘culture of blame’  If there is a culture perhaps it is born out of a higher level of awareness of legal rights and greater ability to enforce legal rights.  This is not a bad thing. E.g. note current focus on sexual and physical abuse claims against religious, charitable and educational institutions. These institutions should be held able for their wrongdoing. Two purposes – vindication of rights of victim & sends message to community – ‘sexual abuse is unacceptable’ Will tort law reform solve the problems?  No- reform of tort law already and s haven’t dropped  Courts have already corrected some of problems – tort law is inherently flexible – liability issues expand and contract –Negligence has grown and developed and reflects social, economic, cultural and political changes  Problems are complex and will not be easily resolved. No further progress until insurance industry ‘gets its own house in order’. Future directions

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Should Qld/Australia move to a no-fault system similar to New Zealand/Sweden? Trade-off compensation reductions for no-fault benefits