Torts - Exam Notes V2 1w6x3i

PRINCIPLES OF TORT – Exam Notes Intentional Torts Tres to the person Battery 1. Voluntary and positive act of D (Innes v Wylie) 2. Directly (Hutchins v Maugham) – direct and not merely consequential i. Cf. NAI – intervening act 3. Intentionally or negligently (actual, deemed or negligent) (Williams v Milotin) 4. with the plaintiff a. Need not be violent or cause harm; Least touching of another is sufficient (Coles v Turner) i. No need for hostility or anger (Collins v Wilcock) b. Exception for exigencies of everyday life (Collins v Wilcock; In re:F, Rixon v Star – tapping on shoulder) i. in daily life considered in the context of the incident (Clerk v Lindsdell) 5. Without lawful excuse 6. Defences: a. General: i. Consent ii. Self-Defence iii. Necessity iv. Lawful arrest b. Specific i. Forced act ii. NAI / involuntary action iii. Lawful iv. Exigencies of daily life 1

Assault Definition: Causing P an reasonable apprehension (a reasonable expectation) of imminent (Zanker v Vartzokas; Rozsa v Samuels) 1. Actionable per se – does not require damage/injury 2. Positive and voluntary act of D (Innes v Wylie) 3. [Direct act] 4. [Fault] Causing a reasonable apprehension of imminent i. Must be reasonable 1. Would a reasonable person have apprehended the ? 2. Actual or apparent present ability to carry out threat ii. Relate to imminent 1. Continuing apprehension (Zanker v Vartzokas) 2. Conditional threat - unless a person acts or doesn’t act a certain way - not enough (Tuberville v Savage)(Rozsa v Samuels) a. Is condition precedent one which the threatener has a legal claim of right? (Rozsa v Samuels) b. If the physical to assert that claim of right was carried out, would it be lawful? 3. Words alone are enough (R v Ireland)(Zanker v Vartzokas) (Barton v Armstrong) 4. Acts alone are enough; combination of acts and words 5. Defences a. Unreasonable apprehension b. Lack of directness c. not imminent d. Conditional threat

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False Imprisonment Definition: Total restraint on the plaintiff’s freedom that is directly and intentinally or negligently brought about by the positive and voluntary act of the defendant without lawful justification 1. Total restraint of plaintiff’s freedom a. Mere obstruction will not suffice (Bird v Jones) b. Does not require jail but must be a boundary (Bird v Jones) c. Contractual considerations – unlikely to be FI (Balmain New Ferry Co v Robertson; Herd v Weardale Steel), but one party may not imprison another party to the contract i. Factors: 1. Consent 2. Mere omission 3. Must be no reasonable means of egress (McFadzean). Considerations: a. Threat or danger to self or property b. Legality c. Distance & time d. P’s experience d. Psychological restraint i. Must be complete submission of will (Symes v Mahon) e. Knowledge of restraint is not necessary (Murray v Minister of Defence) 2. Directly a. Voluntary acts by Plaintiff may constitute intervening acts b. Act committed by agent does not disrupt directness by principal (Dickinson v Waters) 3. Intentional or negligently 4. Positive and voluntary act of D 5. Without lawful justification

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Defences 1. Lack of element: positive/voluntary act, directness/NAI, intention 2. Consent a. Genuine and informed i. Scope of consent: Must understand what a person was consenting to 1. Scope – footy players are not consenting to prohibited acts (McNarma v Duncan) ii. Evidence of consent: Must evidence that informed of consent in some way 1. Not as comprehensive a test as per negligence (Rogers v Whitaker) 2. Test for informed consent is that patient informed in broad of the nature of the procedure: (Chatterton v Gearson - needle to spine to kill nerves; failed in battery) iii. Vitiated by threats/physical force/economic duress: must not be acting under duress 1. Latter v Bradell – servant consented to medical exam (arguably incorrect today) 2. Vulnerability: Aldridge v Booth – sex with female employee was not consent as she was vulnerable 3. b. Minors i. Minors may give consent where they have understanding/intelligence 1. (Marion’s case - parents must act in best interest of the child) c. Revocation of consent i. Must be unambiguous and communicated to the D. ii. May be irrevocable for ‘critical period’ if revocation is dangerous 3. Self-Defence a. D must believe on reasonable grounds it was necessary to go what 5

she/he did (Zecevic v DPP). Considerations: i. Proportionality of response: whether D could have avoided threat without using force ii. Mistaken belief: assailant must prove it was honestly and reasonably held belief (Ashley v Chief Constable of Sussex Police) iii. Defence of another / stranger: allowed (Goss v Nicholas) iv. Defence of property: must be reasonable force, not excessive, only available to possessors, must give reasonable warning 4. Necessity a. Must be urgent situation of imminent peril (Southwark London Borough Council v Williams) – not just convenient b. Assessed by what was known at the time c. Attempt to protect person/property need not be successful d. Consider harm if no defensive action taken (limited weight – spur of the moment)(Proudman v Allen) i. Allowed to use reasonable force to prevent someone from committing suicide 5. Legal Authority - arrest a. Mode of arrest – degree of force must be ‘reasonably necessary’. Person must be told of grounds for which they were arrested, unless caught during offence or person caught makes it impossible to provide information (Christie v Leachinsky) b. Common law: Dallison v Caffery c. s.464A Crimes Act: everyone taken into custody must be released, on bail, or bought before Magistrate’s Court within a reasonable time

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Tres to goods Definition: A voluntary and positive act of D that directly and intentionally or negligently interferes with D’s exclusive possession of goods 1. Tres a. Must be in actua/consructivel possession i. With right to immediate possession, can use Piggy-back principle (Penfold’s Wine) 1. Pl can use if a person who held actual or constructive possession was a servant, agent or bailee under a bailment at will b. Mere touching: Not settled law in Victoria. Everitt v Martin (NZ) – no, Wilson v Marshall (Tas) – no; academic literature argues it should be sufficient (Trindade & Cane). c. Dogs (Hutchins v Maughan) 2. Bailment [lending/borrow until purpose completed] a. Must be delivery + possession b. Bailment for term (limited period), owner has reversionary interest c. Following expiry of term or breach become bailment at will, with right to immediate possession d. Duties of bailee (Morris v Martin: fur stole): i. Take reasonable care of goods ii. To return goods to bailor at end of bailment iii. Not to convert goods e. Ashby v Tolhurst 3. Action on the case [permanently damaging goods where Pl has a reversionary interest] a. To sue, Plaintiff must have: reversionary interest (non-immediate) i. Possessor can sue where damage is indirect b. Voluntary & positive act c. Directly or Indirectly d. Intentionally or negligently e. ‘Permanently’ damages goods 7

i. Kind of damage that continues until (permanently) repaired (Mears v London; South Western Railway)(paint on cars) ii. Intentional damage (Penfolds Wine v Elliot; Hurrell v Ellis) 4. Conversion [deny possession/holding out goods as one’s own – selling/destroying] a. To sue, Platintiff must have: possession (custody + control) or right to immediate possession b. Voluntary + Intentional act – dealing with goods in a manner inconsistent with possession to amount to a denial of it i. State of mind must be considered ii. Can infer intention where ‘natural consequences’ deny Pl possessory interest 1. Moorgate Mercantile v Finch – car used to smuggle goods out of countr 2. Willis v British Car Auctions – some acts themselves are an assertion of proprietary rights, so intention less relevant c. If you want money, sue in conversion; if object is made unpossessable, can’t sue in conversion d. Examples: i. Taking 1. Fouldes v Willoughty – moved horses buy did not deny possessory rights ii. Dispossessing 1. Forsdick v Collins – D moved plaintiff’s stone so far away as to dispossess iii. Withholding 1. Oakley v Lister – D bought land and stuff on it, Third party independly bought stuff. D was wrong but held on to stuff. Denial of possessory rights. iv. Destroying 1. Purpose sas to be fundamentally altered (Penfold’s Wine) v. Using

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1. Only where use of goods is denial of Pl’s possessory right – no so in Penfold’s Wine case – filling other bottle of wine 2. Wrongful use of goods – Penfolds Wine

5. Detinue [refusing to return/requesting return of goods] 1. If you want the good, sue in detinue. 2. All detinues are a conversion b. Right to immediate possession + proper demand + refusal to return = detinue c. To sue, Plaintiff must have: right to immediate possession d. Must be a proper demand i. Must be sufficiently clear instructions regarding how goods are to be returned (Flowfill – whom/where left out; Lloyd v Osborne – can’t be too onerous) e. Refusal to return goods i. Express; failure to reply (Lloyd v Osborne); inability due to negligent acts (Houghland v RR Low Luxury Coaches) ii. ing interest could constitute refusal to return goods f. Examples i. bailor against bailee ii. Bailee against sub-bailee (Premier Group v Followmont Transport)

Improvement to goods

1. If D has increased value of goods (incontrovertible benefit), measure of damages will be: true value - the value of the improvements (Greenwood v Bennett). 2. Court may make it a condition that P must pay D for value of improvements before goods are returned a. Exception: D thought he was the genuine owner at time improvements were made (Greenwood v Bennett)

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Tres to land Definition: A voluntary and positive act of D that directly and intentionally or negligently interferes with D’s exclusive possession of land 1. Actionable per se (Entick v Carrington) a. Plaintiff proves fault b. Standing to sue: i. Pl must have exclusive possession of land – act of possession alone can give right to sue ii. Newington v Windeyer – new house owner accessed The Grove, which was owned by those whose housed backed on to it 1. Owner, Tenant (valid lease), mere licensee (Vaughn v Shire of Benalla –licence for sheep grazing, dumped nightsoil) 2. Voluntary and positive act of D a. Slightest physical crossing of boundary is sufficient i. Entering with Ax to make tenants move = tres (Lavender v Betts) ii. Cutting off electricity is not tres 3. Directly 4. Intentionally or negligently a. Intentional or careless – League Against Cruel Sports v Scott – chase deer 5. Interferes with a. Continuing tres i. Leaving goods on land after consent has been revoked is tres (Konskier v B Goodman – rubbish remained on roof) 6. Exclusive possession 7. Of land a. Meaning of ‘land’ - Blackstone: anything on surface, below, above & fixtures i. Anything hitting the surface/ground is tres to land b. Airspace 10

i. ‘Height as necessary for ordinary use and enjoyment’(Bernstein v Skyviews – planes ok to take photos from air above, no privacy protection) ii. Interference with ‘ordinary use of land platinff may see fit to undertake’ (LJP v Howard Chia – high scaffolding over neighbour’s land still tres) i. Court takes liberal view iii. Wrongs Act s.30 – no action for flight of an aircraft in ‘reasonable’ circumstances, as long as Air Navigation Regulations are complied with c. Below the ground i. Minerals belong to land owner; or the Crown ii. Was Pl using the land at that depth? 8. Defences a. Consent b. Express/implied license i. Halliday v Neville 1. Implied licence to use means of access to entrance to a house, for a legitimate purpose, if: 1. Path/driveway left unobstructed 2. Entrance gate left unlocked 3. No sign/indication entry is forbidden ii. Lincoln Hunt v Willessee 1. Implied license can be limited by references to people or purpose – journalism cases – only for legitimate business purposes not harassment - only damages awarded a. Rinsale v ABC i. If plantiff has refused permission in advance, no license exists b. ABC v Lenah Game Meats i. Injuction only available against a party where cause of action can be brought against that party

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c. Revocation of consent (Cowell v Rosehill Racecourse) 1. Licensee does not become a treser until: a. Received notice that license is revoked b. Given a reasonable time to withdraw from land

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Nuisance Definition: Unreasonable interference with Plantinff’s use or enjoyment of land (Walter v Selfe; Victorian Park Racing per Dixon) 1. Standing to sue: must have exclusive possession (Hunter v Canary Wharf) a. Mere license – cannot sue (Hunter v Canary Wharf; Oldham v Lawson) b. D’s responsibility: i. Creators of Nuisance 1. May emanate from someone’s land (Fennell v Robson Excavations – caused P’s land to subside) ii. Continuing and adopting a nuisance 1. If D knew or ought to have known of the nuisance 2. Failed to take reasonable steps to bring nuisance to an end 2. Material/non-material damage a. Cannot be trivial damage, but all other damage is unreasonable and is material injury (St Helen’s Smelting Co) b. Based on standard of a reasonable person (not a sensitive person) 3. Personal discomfort/interference with sensibilities – A balance of factors: i. Reasonable – give and take, live and let live (Bamford v Turley) ii. Extent of interference 1. Screams = Nuisance (Seidler v Luna Park) 2. Normal Living noises not nuisance (Clarey v Principal & Council of Women’s College) iii. Frequency iv. Locality 1. Nuisance is one area is not the same as another 2. Smell were nuisance, even though economic necessity (Munro v Southern Dairies) v. Sensitivity of the Plaintiff’s 1. Impact on Pl (Robinson v Kilvert – heat only affected paper products, not workers) 2. Ex) On rehabilitation vi. Acting Maliciously (more likely to be nuisance) 1. Discharge of gun in ground to disrupt breeding business Hollywood Silver Fox v Emmett

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b. Not protected: i. Person’s view/light/television reception by a building (Victoria Park Racing) 1. If interference caused by something other than a building (eg. Generator) then it is nuisance ii. Being observed (Victoria Park Racing) 4. Defences a. Statutory authority (Lester Travers v City of Frankston – building a golf course not sufficient) b. Not a defence (can impact remedy): Coming to the nuisance (Sturges v Bridgman; Miller v Jackson – Pl was able to sue when cricket balls landed on property despite moving in next to cricket ground) 5. Remedies a. Abatement (self-help)(Barton v Winters) i. Cut down handing trees – picking up fruit is conversion b. Damages i. Compensatory, but only if reasonably foreseeable (Cambridge Water Co v Eastern County Leather – didn’t foresee chemicals would seep through floor into water) c. Injunction i. Discretionary 1. Miller v Jackson – cricked balls - denied 2. Kennaway v Thompson – water skiing - granted

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Negligence

Negligence 1. Duty of care 2. Breach of duty 3. Causation 4. Remoteness

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Duty of care 1. Established relationship of duty of care a. Doctor/patient; driver/driver & pedestrian; employee/employer 2. Reasonable foreseeability a. Class of persons would reasonably be affected by carelessness (Donogue v Stephenson)(Chapman v Hearse – general character; don’t have to foresee precise chain of events) b. Real; Not unlikely (Caterson v Commissioner for Railways NSW), not farfetched or fanciful risk 3. Salient features i. Floodgates/Indeterminate liability 1. (Perre v Arpand per McHugh – cannot be realistically calculated) ii. Unreasonable interference with autonomy (Annets – PMH Jackaroo case) 1. Does it restrict conduct of their business? iii. Control over risk? (Adeels Palace v Moubarak)(Donogue v Stephenson) 1. Legal or practical sense iv. Vulnerability? (Perre v Arpand – farmers were vulnerable, Esanda – was not vulnerable, sophisticated client ) a. Was there a sign? b. Perre v Arpand – knowledge of vulnerability ii. Consistent/congruent with other areas of law? 1. (Sullivan v Moody – inconsistent with statute, paramount affect to interest of child; Hill v Van Erp – duty on solicitor for wills was held, consistent with other areas of law) iii. Policy considerations? 1. Would increase costs. Is insurance a factor a. Johnson Tiles v Esso b. Esanda finance – list per McHugh 2. No duty: advocates/parents (yes positive actions, but no for omissions only)[Robertson v Swincer]/good Samaritans/volunteers/blood donor (health & wellbeing Act) iv. Illegality 1. Illegal victim – still not deprived a duty of care 16

2. Sometimes - Civil law should not condone criminal action (only if statute – Miller v Miller)

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Breach of duty – a breach of a ‘standard of care’ 1. Reasonable foreseeability s.48(1) a. Was risk reasonably foreseeable – s.48(1)(a)? 1. Not insignificant risk - S.48(1)(b) – meaning not far-fetched or fanciful – s.48(3)? Wyong Shire Council v Shirt] 2. Failure to take precaution of ‘reasonable person’ S.48(1)(c)? a. What D knew or ought to have known? 1. Greater case taken for one eyed person [Paris v Stepney Borough Council] 2. Learner driver held to standard of full driver, even if awareness of lack of skill [Imbree v McNeilly] 3. McHale v Watson – standard of other 12 year old boys 4. Disability reduces foreseeability, but held to standard of mentally competent person [Carrier v Bonham] 3. In determining precautions a ‘Reasonable person’ would take, court considers: (negligence calculus) a. Probability of harm s.48(2)(a) 1. Would RP have acted to prevent? 1. No breach for failure to put up fencing in car park [Romeo v CCNT] 2. Cricket club – risk of loose ball so small, no liability, not omission but act of playing without a fence [Bolton v Stone] 3. Cricket club liable [Miller v Jackson] b. Seriousness of consequences s.48(2)(b) 1. Special skills/disability? 1. Employer had to reasonably care for workmen, including oneeyed worker [Paris v Stepney Borough Council] c. Burden of taking precautions s.48(2)(c) 1. Graham Barclay Oysters Pty Ltd v Ryan d. Social utility s.48(2)(d) 1. Greater the public benefit, the less likely a RP would take precautions to undermine the benefit a. Saving life justifies risk [Watt v Hertfordshire Council] b. Sports players – agreed risk acceptable, but not those 18

risks not covered by rules ( no DOC, Agar v Hyde) c. Sports risk– organizer not required to supply helmets for cricket game where man hit in the eye (Woods v Multi-sport holdings) d. 4. Did D breach that standard? (Onus on Pl to prove) Specific examples: a. Special knowledge/skills/ability – s.58(1)(a) 1. Special skills or person holding out as having special skilss person held to reasonable standard of person with those skills (Philips v Whiteley) b. Is it common practice 1. Comparable age, mentally competent, no ing for inexperience 2. Particular skills, knowledge, expertise - Wrongs Act s.58(1)(a) – reasonable care of someone with those skills (Philips v Whiteley) at s.58(b) – date of negligence [Roe v Minister for Health] 3. Non-professionals – not held to higher standard [Mercer v Commissioner for Road Transport & Tramways – dead man’s handle] 4. Legislative standards – not conclusive c. Professionals 1. s.59(1) – not negligent if widely accepted by significant number of professionals - peer professional opinion; (2) not valid if unreliable ; (3) more than one opinion is acceptable and (4) universality not required a. Only a factor to be considered for non-professionals – [Mercer v Commission for Road Transport NSW] d. Duty to warn s.59 1. s/59 Does not apply to giving/failing to give a warning by professional (s.60). Objective standard is relevant. a. b. c. Whitaker]

Bolam v Friern Hospital Management Committee FvR Doctor has duty to warn of ‘matieral risks’ [Rogers v i. ‘material risk’ – where patient likely to attach significance to it ii. Or doctor is/should be aware of significance to Pl (one-bad eye)

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d.

Rosenberg v Percival

ii. The burden of taking precautions to avoid similar risks s.49(a) - or the fact that harm could be avoided by doing something differently (b) - does not give rise to liability 1. Apology not an ission of liability 2. Court must consider intoxication and illegality in determining breach of duty of care - S.14G

No single factor in isolation [Romeo v CCNT]; common sense risk assessment [Very – swimming]

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Causation 1. S.51 – ‘necessary condition’ of harm a. S.51(3) – Consider what Pl would have done if there had been no negligence (subjectively) 2. ‘But For’ test (March v Stramare; Chappel v Hart) a. If ‘but for’ not conclusive, are there other reasons s.51(2)? b. ‘But For’ Test not conclusive – use Common sense & policy approach (March v Stramare per Mason CJ) i. If D’s negligence only secured Pl presence at time and location, is not enough unless it increased D’s risk c. What Plaintiff would have done is sometimes relevant s.51(3) (Chappel v Hart) 3. Materially increasing risk test (McGhee v National Coal Board per McHugh; Chappel v Hart per Kirby and Gaudron JJ) a. Was risk of that particular injury increased? May be sufficient for causation. 4. Breaking causation: a. NAI i. Suicide not voluntary human action (Haber v Walker per Smith J) ii. Coincidence - NAI iii. Subsequent negligent acts by Plaintiff do not remove liability (Mahoney v Kruschich) b. Only securing D’s presence at time and place – not sufficient 5. Examples a. Arsenic poisioning – no causation (Barneet v Chelsea & Kensington Hospital) b. Vocal cord surgery ‘wouldn’t want a squeaky voice’ – Doctor was liable, would not have had surgery but for doctor’s failure to warn c. Neck brace – trip – liablity found d. Slip in hospital – no liability found

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Remoteness 1. Classification 1. Particular kind or genus of harm 2. Mental harm – if any type of psychiatric condition is foreseeable, then the specific condition is not relevant (Mt Isa Wines) 2. Test: Reasonably foreseeable 1. Reasonable person in the position of D ought to have foreseen loss of that particular kind or genus (Metrolink v Inglis – not foreseeable) 2. Consider kind of injury/loss – broad approach i. Leaking oil, then wharf fire – fire too remote (Wagonmound #1) ii. Fire risk was real, not far-fetched or fanciful – was foreseeable (Wagonmound #2) iii. Death – where death/serious injury likely, any death not too remote (Versic v Connors) iv. Thin skull rule 1. You take your victim as you fid them (Nader v Urban Transit Authority – parents freak out damages children, boy had propensity for mental illness – not too remote) 3. Policy considerations apply

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Defences to negligence 1. Contributory negligence s.26 a. Party suffers damage as a result of Pl’s failure to take care s.26 i. Exception s.63 ii. Sudden emergency – is action is reasonable compared against alternative danger, ‘degree of inonvenience’, against risk taken to avoid it? (Caterson v Commissioner for Railways) iii. Factors (s.62 - same as breach negligence [s48]): 1. P’s harm a result of P’s failure to take a reasonable standard of care? - Plaintiff has duty to take reasonable care of themselves 2. What they knew or ought to have known at the time (as per causation) iv. Leniency allowed b. Damages are reduced to what the court thinks is equitable i. Factors – how far each party fell below standard of care: i. Number of people at risk ii. Obviousness iii. Relative responsibility contributing to harm ii. May be 100% 1. Ex) Drink driving [Josyln v Berriman] – held to standard of care of reasonable sober person a. enger – 60% b. Driver - 40% 2. Ex) Pedestrian crossing road at night – 20%, driver hitting him, 80% (Pennigton v Norris) 3. Children – Robertson v Swincer 2. Valenti – voluntary acceptance of risk (complete defence) a. Factors: i. What P subjectively knew about facts/risks (Scanlon v American Cigarette) ii. P appreciated the risk inherent in those fact 1. Didn’t have to believe risks would in fact materialise (ICI v Shatwell)

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iii. Freely and voluntarily accepted that particular risk (narrowly construed) 1. Water fight between cars, real risk was high speed turn (Kent v Scattini) 2. Waterskiing was accepted risk (Rootes v Shelton) 3. If not sober, cannot fully appreciate risk (Banovic v Perkovic) iv. S.54 Obvious risk 1. (1) Person is presumed to be aware of the risk 2. (1) Unless on balance of probabilities person was unaware 3. Burden of proof changes: Pl has to show they were not aware of the risk a. Exception i. (2) Professional or health service ii. Work done by one person for another v. S.55 Inherent risk 1. Cannot be avoided by the exercise of reasonable care 2. Does not apply to failure to warn (Chappel v Hart) 3. Illegality a. Independent action of Pl b. t c. No general principle - other people may owe lawbreaker a duty in tort (Henwood v Municipal Tramways Trust) i. Is it inappropriate to determine a standard of care Pl should take towards D? d. There is a standard of care with illegal actions – both parties stole a care and joyriding (Miller v Miller) e. Statute will show if duty existed – look to purpose of law i. March v Stramare – truck parked in middle of road ii. Were the laws established to prevent persons suing in negligence? f. S.14G – less likely to fall below a standard of care if Pl is acting illegally 4. Good Samaritan & Volunteer a. S.31B – Good Samaritan i. Where there is not money or financial reward ii. Assistance or advice where apparent risk of death or injury b. S.37 – Volunteers 24

i. Defined in s.34-40 c. Limitation of Actions Act 1958 i. S.51 – 6 years for a cause of action to accrue ii. Personal injuries – 3 yearss.5(1)AA 1. Date from which person knows that he has suffered personal injuries iii. There are grounds to extend limitation of action s.23A iv. S27D 1. 3 years from which cause of action discoverable by Pl 2. 12 years from Act or omission 3. 3 or 6 years after turning 18 d. Barristers/advocates immune from sued for conduct of court proceedings and matters intimately connected, for public policy reasons. (D’OrtaEkenaike v VLA)

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Pure Economic Loss 1. Has Pl suffered pure economic loss? 1. Not as consequence of personal injury or physical damage 2. Is this due to a statement or act/omission? 1. PEL by negligent misstatement i. Immediate or non-immediate recipient? 1. Immediate recipients a. Reasonably foreseeable economic loss? (Donogue v Stephens) i. Not enough alone to establish a DOC exists ii. Not far-fetched or fanciful (Sullivan v Moody) b. Special relationship - Lord Reid’s test in Hedley Bryne v Heller i. Pl relied on D to exercise reasonable care ii. Pl’s reliance was reasonable iii. D knew or ought to have known Pl was relying upon him 1. Consider relevant factors: a. b. c. d. e. f. g. h.

Special skills Context Subject-matter Request for information (San Sebastian) Intention to induce Financial advantage Position of parties Disclaimer

2. More easily found where a. D being paid (Hedley v Bryne) b. D is a professional or hold himself out to be (MLC v Evatt) c. Salient features of duty of care i. Floodgates/Indeterminate liability ii. Unreasonable interference with autonomy iii. Control over risk? (Adeels Palace v Moubarak) 26

iv. v. vi. vii.

1. physical propquitiy between property and land – Perre v Arpand Vulnerability? Consistent/congruent with other areas of law? Policy considerations/social utility? Illegality

2. Non-immediate recipients (San Sebastian) a. Economic loss reasonably foreseeable? Necessary but not sufficient (Esanda) i. Lowe Lippman – Auditor did not own duty as purpose was to discharge duty and provide report b. Salient features of a duty of care? c. ‘Special relationship’ i. Intention to induce plaintiff to rely upon representation OR ii. Brenna CJ’s 3-tier test in Esanda; 1. The information would be communicated to the Plaintiff 2. The information would be communicated for a purpose very likely to lead the Plaintiff to enter into the kind of transaction the plaintiff did 3. Very likely the Plaintiff would enter transaction in reliance upon the information iii. Policy considerations against DOC per McHugh in Esanda [that D knew or ought to have know] 1. Floodgates 2. Plaintiffs well placed to look after themselves 3. Secondary loss only 4. Indirect remedy (through company) available 5. Causation difficult to show d. Did P’s reasonable reliance on that information or advice cause their loss? 27

2. PEL by act/omission i. Reasonably foreseeable that Plantinff/class of persons might suffer pure economic loss as a result of carelessness of D? ii. Salient features? a. Floodgates/Indeterminate liability b. Unreasonable interference with autonomy c. Control over risk? (Adeels Palace v Moubarak) i. physical propquitiy between property and land – Perre v Arpand d. Vulnerability? e. Consistent/congruent with other areas of law? f. Policy considerations/social utility? g. Illegality 3. Emphasis on scenario: i. 3rd party property damage 1. Case: Caltex Oil v The Dredge Wilemstad a. Facts: Service of oil disrupted due to damage, Caltex unable to fill demand. b. Held: In general no recovery for PEL not consequential upon injury to person/propety c. Exception: where D knew/ought to have known when one particular person (not a class) is likely to suffer PEL as a result of D’s carelessness 2. Case: Perre v Arpand a. Facts: Infected potato seeds from SA got into WA, 20 km radius affected. b. Held: control features – salient features approach, duty found. i. Floodgates/Indeterminate liability ii. Unreasonable interference with legitimate business activity iii. Control over risk? (Adeels Palace v Moubarak) iv. Vulnerability? v. Actual/constructive knowledge of risk

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3. Case: Johnson Tiles v Esso a. Facts: Longfield gas explosion caused gas supplier shutdown. b. Held: Salient features approach taken, no duty found. i. Floodgates/Indeterminate liability ii. Unreasonable interference with legitimate business activity iii. Control over risk? (Adeels Palace v Moubarak) iv. Vulnerability? v. Social utility vi. Contractual/statutory regime vii. Better law ii. Breach of contract 1. Executor of will owed duty by lawyer in drafting a will to avoid PEL (Hawkins v Clayton Utz)(Hill v Van Erp) a. Reasonable reliance on the solicitor given their special skills and knowledge iii. Defective structure 1. Builder of house owes duty of care to avoid PEL to owners and subsequent owners of house (Bryan v Maloney) a. Responsibility, reliance, proximity (now salient features approach) b. Connecting link exists between parties 2. Engineer owed duty of care to avoid PEL to owner of warehouse and subsequent owners, but connecting link broken because D’s assessment was used and subsequent owner did not ask for warranty (Woolcock Investments v CDG)

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Pure Mental Harm Wrongs Act s.23 – Not having a physical injury is not a barrier to recovering damages where injury arose wholly from mental or nervous shock 1. Wrongs Act s.72 – duty of care (overlay with CL, ‘nervous shock’ not just emotional ‘shock’) 2. Section 67 Definitions – a. Injury v. Includes ‘psychiatric or psychological’ injury vi. More than 10% impairment - ss 28LB, 28LE and 28LF b. Mental Harm i. A recognised psychiatric or psychological injury c. Consequential mental harm [s.74(1)] i. Mental harm consequential upon another injury 1. Ex) D’s negligence caused physical harm to the PL, also caused mental harm to Pl (relatively easy to prove) 2. Additional foreeability test at the remoteness stage d. Pure mental harm i. Mental harm other than consequential mental harm (harder to prove) 2. Requirements for liability to arise from harm to another person - use s.73 (if no, skip this step to s.72): a. Witnessing injury at the scene, by Pl b. Pl is or was In close relationship (‘love and affection’ test per Gleeson J) c. Other person suffering harm must be able to recover for injury s.73(3) 3. Is this pure mental harm for which the law allows recovery? (If yes, go to duty of care) i. Has to be recognised psychiatric injury 4. Duty of Care (for Pure Mental Harm) s.72

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a. Reasonable Foreseeability Test – s.72(1) [*different from regular negligence] i. Reasonably foreseeable, not far-fetched or fanciful? ii. Normal fortitude: s.72(1) D does not owe P a duty unless D foresaw or ought to have foreseen that a person of normal fortitude might iii. Circumstances of the case: s.72(1) in the circumstances of the case, suffer recognised psychiatric injury if reasonable care was not taken 1. Circumstances of the case: Factors – s.72(2) a. Result of sudden shock b. Witnessed accident c. Nature of relationship - pl & person injured/killed d. Pre-existing/close relationship 2. Exception s.72(3) a. D knows or ought to know that particular plaintiff or a plaintiff of with those conditions was not of normal fortitude i. No duty owed by Communicator of the information (Annetes; Tame); but per Annetts (Gummow and Kirby) – duty is owed where there has been carelessness b. Salient Features [Note: s.71 does not exclude common law salient features test][Annetts - jackaroo & Gifford – father/son/forklift] i. Floodgates/Indeterminate liability 1. (Perre v Arpand per McHugh – cannot be realistically calculated) ii. Unreasonable interference with autonomy (Tame; Annetts, per Gummow, Kirby and McHugh JJ; Annetts - Jackaroo case, no) 1. Does it restrict conduct of their business? iii. Control over risk? (Adeels Palace v Moubarak)(Donogue v Stephenson)(Gifford) 1. Legal or practical sense 2. For third party – had control over risk to person injured, so had control over risk of harm to third party iv. Vulnerability? ((Gummow, Kirby and Hayne JJ in Tame; Annetts; see also Perre and Hill; Perre v Arpand – farmers were vulnerable, Esanda – was not vulnerable, sophistacted client ) a. Was there a sign? b. Perre v Arpand – knowledge of vulnerability 31

v. Voluntary assumption of responsibilty 1. unlike in Annetts - series of assurances was held to create a ‘special pre-existing relationship’, but not essential(Gifford) vi. Consistent/congruent with other areas of law/other area better suited? 1. (Sullivan v Moody – inconsistent with statute, paramount affect to interest of child; Hill v Van Erp – duty on solicitor for wills was held, consistent with other areas of law) vii. Policy considerations? 1. Would increase costs. Is insurance a factor a. Johnson Tiles v Esso b. Esanda finance – list per McHugh 2. No duty: advocates/parents (yes positive actions, but no for omissions only)[Robertson v Swincer]/good Samaritans/volunteers/blood donor (health & wellbeing Act) viii. Illegality 1. Illegal victim – still not deprived a duty of care 2. Sometimes - Civil law should not condone criminal action (only if statute – Miller v Miller) 5. 6. 7. 8.

Breach Causation Remoteness Defences

9. Damages a. S.75 – no damages unless recognised psychiatric injury

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Omissions Policy reasons against omissions 1. Reasonably foreseeable a Pl of Pl’s class could be injured if D fails to act? 2. Not far-fetched or fanciful? a. (The ‘central inquiry’ of Annette’s case – jackaroo) b. Child learning of father’s injury is reasonable (Gifford) 3. Salient features? a. 4. Reasonable foreseeability not enough in omissions – must be in a special relationship a. Did D create situation of danger i. Even without negligence? (didn’t use headlights for horse on road) (Lawes) ii. Is standard easily met? (turn on headlights) b. D has control of hazard (landowner, fire on own property)(Goldman)(or police on scene) i. Knows of hazard ii. Has ability to oversee consequences of not checking iii. Has ability to remove it iv. Is standard easily met? (put fire out on tree) c. D is public authority i. S.83 - Discretion to provide a service does not create a duty unless D is relied upon by others for their safety, and reliance is reasonable. Consider factors: 1. Financial/resource limitations 2. Broad range of activities D is charged with 3. Compliance with general procedures and standards ii. Broader that foreseeability (Heyman per Brennan J) 1. Where D has undertaken to perform a task (regularly) and Pl 33

relied upon it (motorists expect road signs) (Heyman per Brennan J) 2. Where Pl relies on D to perform function and Pl suffers damage if D does not take care (Heyman, per Mason J) d. Special relationship between D & Pl (or to control 3rd party) i. Is there an assumption of liability? (police on scene/lifesaver on duty) ii. Is there control? Of a third party? Duty to a third party to prevent injury by person under D’s control? 1. Employer/prison operator/school & teachers a. School teachers have duty to supervise during school hours – opening gates created special relationship, child’s naughty actions not NAI (Geyer v Downs) 2. Parent who has control must take reasonable care, but telling 13yr old child not to use slingshot discharged the duty (Smith v Leurs) 3. Duty was owed where parents stopped kindergarten children from wandering onto the road (Carmarthenshire)

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Vicarious Liability 1. That a person is an employee, not independent contractor? a. Totality or relationship approach (Hollis v Vabu). Factors: i. Control (including leave, ability to work for someone else) ii. Representation/external manifestation to public iii. Training/equipment/managing of finances (Brodribb) iv. Creating their own good willl 2. Person acting in the course of employment? a. Vicariously liable if: i. Authorised act ii. OR Salmond Test (NSW v Lepore): Doing an authorised act in an unauthorised way (Gleeson CJ) a. Defrauding conveyance customer by clerk (Lloyd) i. Other tests: 1. Kirby J: Sufficient connection between risk of wrongful conduct created by employer and torts committed 2. Gleeson CJ: Sufficient connection between tasks assigned to employee and torts committed 3. Gummow & Hayne: In employers interest, ostensible authority, authority held out as having 4. Callinan J: No vicarious liability where there is criminal conduct 2. Includes express or implied authority 3. Third party may treat person as authorised employee if employer gave ostensible authority (employer gives impression act was under authority) iii. Acting against employers’ instructions (Bugg v Brown) 35

iv. Acting criminally (Bugge v Brown) v. Acting criminally and in own interest (Morris v Martin – third party employee liable for theft of fur stole) vi. Breaching serious misconduct, depending on the relationship that is created and power/control/responsibility invested in employee (NSW v Lepore) vii. Policy reason – who can bear the burden (Deatons – not persuasive argument) Non-delegable duties 1. S.61 – D is treated as if vicariously liable i. Limited to negligent acts not intentional acts b. Can be employee or independent contractor c. Employer has exclusive responsibility for employee’s safety d. Employee has not choice but to rely on employer’s judgement 2. Categories: 1. Employer to employees a. Adequate plant equipment, safe place and system of work (Kondis v State Transit Authority – negligent, not intentional act) 2. Occupier of land who engages in dangerous activities to neighbour (Burnie Port Authority v General Jones) a. Dangerousness – where a reasonable person would consider it necessary to exercise special care 3. School to student a. Commonwealth v Introvigne b. NSW v Lepore – only failing to take care, not intentional/deliberate act – applies to all non-delegable duties

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