mll213 torts exam notes
TRANSCRIPT
1
MLL213 – TORTS
EXAM NOTES
Table of Contents DAMAGES / REMEDIES ................................................................................................................. 5
Categories of damage: ........................................................................................................................ 5
ECONOMIC LOSS ................................................................................................................................. 7
Medical and hospital expenses ....................................................................................................... 7
Gratuitous attendant care services (GCD) ...................................................................................... 7
Loss of ability to care for others: .................................................................................................... 8
Loss of earning capacity .................................................................................................................. 8
NON-ECONOMIC LOSS ........................................................................................................................ 9
Significant injury.............................................................................................................................. 9
Loss of amenities/enjoyment of life: ............................................................................................ 10
Pain and suffering: ........................................................................................................................ 11
Loss of expectation of life ............................................................................................................. 11
Claims upon the death of a person ................................................................................................... 11
NEGLIGENCE (DUTY OF CARE) ..................................................................................................... 14
Damage ............................................................................................................................................. 14
Elements of negligence ..................................................................................................................... 14
DUTY OF CARE ................................................................................................................................... 15
Modern day requirements - what the plaintiff needs to prove … ................................................ 16
Established categories of duty of care .......................................................................................... 16
‘Reasonable foreseeability’ ............................................................................................................... 17
Unforeseeable to the plaintiff .......................................................................................................... 17
Salient features/control factors ........................................................................................................ 18
What factors? ................................................................................................................................ 18
The scope of the duty of care and issues of personal responsibility ................................................ 19
Policy considerations: Immunity from liability ................................................................................. 19
‘Wrongful birth’ and ‘wrongful life’ claims ....................................................................................... 21
Liability of landlords to occupants .................................................................................................... 21
Occupier’s liability ......................................................................................................................... 22
Duty of parents to children and the rights of the unborn child ........................................................ 22
2
BREACH OF DUTY OF CARE ......................................................................................................... 23
Statutory provisions affecting determination of breach: ................................................................. 23
S 48(2) ‘CALCULUS OF NEGLIGENCE’ ................................................................................................ 26
Probability of harm occurring ....................................................................................................... 27
Likely seriousness of the harm ...................................................................................................... 27
Burden of taking precautions........................................................................................................ 28
Social utility ................................................................................................................................... 29
Individual responsibility .................................................................................................................... 29
Obvious risks ................................................................................................................................. 29
Specific breach situations: Failure to warn ....................................................................................... 30
Specific breach situations: Public authorities and recreational activities ........................................ 31
Statutory provisions applying to public authorities ...................................................................... 31
STANDARD OF CARE .......................................................................................................................... 32
Standard of the reasonable person .............................................................................................. 32
Modification of the standard of care ............................................................................................ 32
Children ......................................................................................................................................... 32
Parental liability: ........................................................................................................................... 33
Special skills ................................................................................................................................... 33
Unconsciousness or automatism .................................................................................................. 33
SPECIFIC STANDARDS ........................................................................................................................ 33
Industry standards ........................................................................................................................ 33
Professional standards – medical professionals ........................................................................... 34
CAUSATION ............................................................................................................................... 36
Section 51 Wrongs Act: Factual and Legal Causation ....................................................................... 36
Para (1)(a): Factual Causation ....................................................................................................... 37
Wrongful diagnosis or treatment ................................................................................................. 38
Para (1)(b): Legal causation ‘Scope of liability’: ............................................................................ 39
Novus Actus Interveniens ............................................................................................................. 40
Intervening negligent act of TP: .................................................................................................... 40
Intervening deliberate act of TP ................................................................................................... 41
Intervening negligent acts of Plaintiff ........................................................................................... 41
Intervening deliberate acts of P .................................................................................................... 41
Multiple successive events ............................................................................................................... 43
Two successive tortious events .................................................................................................... 43
3
Subsequent events is non-tortious ............................................................................................... 44
Failure to warn of a medical risk ....................................................................................................... 45
Res Ipsa Loquitur ............................................................................................................................... 46
REMOTENESS OF DAMAGE ......................................................................................................... 47
Wagon Mound cases ..................................................................................................................... 48
Manner of occurrence of harm ......................................................................................................... 49
Extent of harm suffered .................................................................................................................... 50
‘Egg shell skull’ rule ........................................................................................................................... 50
MERE OMISSIONS ...................................................................................................................... 53
Definition of an ‘omission’: ............................................................................................................... 53
Examples of failures to act that are not omissions (defendant is liable) .......................................... 53
Exceptional cases where a duty to take affirmative action is required ............................................ 54
Duty to act to prevent harm to P from criminal activities of third persons ..................................... 54
Duty to act to prevent P harming self? ............................................................................................. 55
Liability of publicans to drunken patrons ......................................................................................... 56
Liability of public authorities for omissions ...................................................................................... 56
Summary of ‘control factors’ from these PA cases ....................................................................... 57
Policy vs operational decisions ..................................................................................................... 59
Liability of Highway Authorities ........................................................................................................ 59
Footpath cases .............................................................................................................................. 59
LIABILITY FOR MENTAL HARM (Psychiatric injury; nervous shock) ............................................... 60
Recovery for ‘pure’ mental harm ...................................................................................................... 60
S 73: claims arising from the death or injury of another person ..................................................... 62
Cases not falling within s73: ............................................................................................................. 64
Consequential mental harm ............................................................................................................. 65
DEFENCES TO NEGLIGENCE ......................................................................................................... 66
CONTRIBUTORY NEGLIGENCE ........................................................................................................... 66
Negligence by P (s62 of W.A) ........................................................................................................ 67
Standard of care: Children ................................................................................................................ 69
Sudden emergencies: .................................................................................................................... 70
b) Causation .................................................................................................................................. 70
Apportionment principles ............................................................................................................. 71
VOLUNTARY ASSUMPTION OF RISK .................................................................................................. 72
Drunken passengers and drivers ................................................................................................... 74
4
EXCLUSION CLAUSES / DISCLAIMER / WAIVER ................................................................................. 74
Wording requirements: ................................................................................................................ 75
LIMITATION PERIODS ........................................................................................................................ 76
PRIVATE NUISANCE .................................................................................................................... 77
General principles: ............................................................................................................................ 77
Material damage: .............................................................................................................................. 77
Intangible interferences: ................................................................................................................... 78
Test for determining unreasonableness ........................................................................................... 79
Title to sue: ....................................................................................................................................... 81
Who can sue? ................................................................................................................................ 81
Who is liable? ................................................................................................................................ 81
Defences: .......................................................................................................................................... 82
REMEDIES: ......................................................................................................................................... 82
Abatement using self help ............................................................................................................ 82
Damages ........................................................................................................................................ 82
Injunction ...................................................................................................................................... 82
BREACH OF STATUTORY DUTY .................................................................................................... 83
Elements ........................................................................................................................................... 83
The statute intends to confer a right to bring a private tort action. ............................................ 83
The statute imposes a duty on D .................................................................................................. 84
P is within the class of persons protected by the statutory duty ................................................. 84
The harm suffered by P is within the class of risks to which the statute is directed .................... 85
D is in breach of the statutory duty .............................................................................................. 85
P’s injury was caused by D’s breach.............................................................................................. 86
Defences ........................................................................................................................................... 86
5
DAMAGES / REMEDIES
Torts is a mixture of civil wrong misconduct by tortfeasor or defendant.
Put plaintiff back in the position they were in before wrongdoing.
Categories of damage: o Compensatory o Aggravated o Exemplary / punitive
Damages for living plaintiffs o Fundamental principles Todorovic v Waller (1980)
1. Compensatory objective
Place the plaintiff in the monetary position that he/she was had the wrongdoing not occurred
2. Once and for all rule Damage in response of injury ‘once and for all’ – lump sum
Consequences of a lump sum = Fetter v Beal (1701); Gilchrist v Estate of Late Sara Alexander Taylor (2004)
Predictions about future health = Wynn v NSW IMC ; Malec v JC Hutton
Wynn v NSW IMC (1995)
Facts: Pre-existing injury
Aggregated the first accident
Gave up job due to back injury
Earning capacity dropped
Held: Adjustments were made of 5%
Key notes:
Can only go to court once to seek damages
Pre-existing injuries (revision) What happens when the plaintiff has a pre-existing injuries that wasn’t at the hand of the defendant?
Look into the textbook chapter on Malik
Balance of probabilities – ‘more probable than not’
The Court can approve can now approve an agreement to settle by a structured settlement
o Section 28N Wrongs Act
o Not tax consequences
6
o Advantages – financial management
o Limitations – no power to order parties to enter into a structure settlement – only applies to settlements
The Court doesn’t care how or if the plaintiff spends the money
The plaintiff bears the burden of proof on damages (on the balance of probabilities)
Special vs General damages
Special damages - can be quantified with a degree of precision (past economic loss)
General damages - cannot be quantified with a degree of prevision (future economic loss, non- economic loss)
Nominal and Contemptuous damages
Nominal damages – awarded for an infringement of a personal right
$10-$15K
Contemptuous damages – same as above, very low monetary figure
Legislative reform (revision):
Significant legislative reform –
o Part VB and Part VBA of Wrongs Act – caps and thresholds on damages
Source of damages = common law!
•Can work out with money i.e. medical, hospital, rehabilitation expenses includes damages for gratuitous attendant care services
•Loss of earning capacit
Economic Loss (pecuniary damages)
•Pain and suffering
•Loss of amenities of life
•Loss of enjoyment of life (s28LB)
•Loss of expectation of life
Non Economic Loss
(non-pecuniary damages)
7
ECONOMIC LOSS Medical and hospital expenses *all must be reasonable costs
Actual medical expenses; and
Gratuitous care damages (i.e. carer [even if own family])
Sharman v Evans (1977)
Gibbs and Stephens JJ: “reasonable” expenses recoverable
Medical expenses – denied if the cost is great but the benefit is not great or is speculative
Allmann v Dumming (1992)
Cost incurred as a result of an injury – must be reasonable for the court to award damages
Gratuitous attendant care services (GCD)
Gratuitous – free of charge (courts will ignore that it’s free) o Griffiths v Kerkemeyer damages
These damages are only awarded if there is a need o It is irrelevant whether the plaintiff will reimburse the carer o No guarantee that the carer will assist for the rest of their life o Court doesn’t care what you do with the money
Even if it is the defendant who is assisting you o Example – Kars v Kars (1996)
Limitations – s28B of the Wrongs Act Has to be:
o Services of a domestic nature Cooking, cleaning, housework
o Services relating to nursing o Services that aim to alleviate the consequences of an injury
Taking to appointments, medication etc Does not include anything of a commercial nature – i.e. running business
Section 28IA(1)
o Must be reasonable need for the service o Need arising solely and completely to the injury in which the damages relate –
defendant’s actions only
Consider section 28IA(2) preclusion – o If it is for a minor – already minor, i.e. already caring
Not if less than 6 hours a week and for less than 6 months (need to satisfy both provisions)
6 months - does not need to be consequent months
Quantum – (put $ on) o Van Gervan v Fenton (1992) o Cap – 28IB of Wrongs Act
8
o Where services for greater than 40 hours a week -cannot exceed average weekly wage o Where less than 40 hours – pro rata
Loss of ability to care for others:
At common law – not available as a separate head of damages CSR LTd v Eddy [2005]
Wrongs Act permits damages for loss of ability to provide services to family members but it has limitations:
o S28ID – no damages unless criteria is satisfied that the care: Was provided to the claimant’s dependants (at the time of the injury only and
for at least 6 hours a week and for a consequent 6 months); and
Loss of earning capacity
Plaintiff’s pre-accident or ‘without injury’ earnings between date of accident and date of trial.
Future earnings – speculative o Take the pre-accident earnings multiple how many years you would be earning o Reductions – Sharman v Evans
i.e. travel expenses, corporate wardrobe, child-bearing age o Consider section 28F(2) of Wrongs Act o Limit of what you can claim – 3 times the average weekly wage (regardless of what you
were earning before)
Tuohey v Freemasons Hospital [2012] VSCA 80 s.29F Wrongs Act considered
Facts: Before accident, plaintiff earned $10,548.52 (p/w)
After accident, plaintiff earned $6,442 (p/w)
Conclusion – where a person’s post-accident earnings is above the cap, you cannot earn loss of capacity earnings (more than three times the average wage)
Held: Court – if the difference between your pre-accident wage is within the cap ($3,069), you can claim it
Post-accident earnings = more than $3,069 (p/week) cannot claim, don’t get anything
Tuohey couldn’t claim
KEY NOTES RE DAMAGES AWARDED
Tax must be deducted – s28A
Deductions of saved items of expenditure (i.e. uniform, tools etc) o Child care not deducted
Adjustment for the vicissitude of life o Usual discount is between 5-20%
No deductions for super or insurance
3% discount at common law – sexual assault, or intentional
5% - Wrongs Act – negligence
9
NON-ECONOMIC LOSS Losses the plaintiff suffered as a result of the defendant’s negligence that you can’t physical put a price on.
Pain and suffering
Loss of amenities of life
Loss of enjoyment of like (s28LB)
Plus loss of expectation of life
Legislative reform:
Wrongs Act enacts caps and thresholds o how much you can claim o reforms are not application where fault is intentional act done with intent to cause
death or injury… (ss28C, 28LC)
S28G Wrongs Act – Non-economic loss (NEL) capped at $371,380 subject to indexation (s28H) -max amount no approx. $470,000 -try and discourage claims that are small or minor
Threshold test in Part VBA Wrongs Act -NEL only recoverable where plaintiff has sustained a “significant injury” -must be permanent impairment (e.g. sprained limb that fully heals is not a permanent injury)
Significant injury (defined in s28LF):
o Greater than 5% physical impairment as assessed by approved medical practitioner o Greater than 10% psychiatric impairment as assessed by approved psychiatrist
(does not include a secondary psychiatric impairment – one which arises from a physical impairment)
o Loss of a foetus o Loss of a breast o Psychiatric injury arising from loss of a child
NB: not applicable for intentional harm, sexual assault and sexual misconduct
Degree of impairment determined by reference to AMA Guide 4th ed
Points to remember:
Ongoing consequences to plaintiff
Not something that has been healed or fixed
10
Insignficant injury
Loss of taste - 3%
Loss of smell - 3%
Loss of little finger or big toe - 5%
Significant injury Sprained wrist, minor loss of
motion - 6%
Soft tissue back injury - 12%
Moderate dislocation of shoulder - 15%
Loss of sight in one eye - 28%
Loss of one arm - 60%
Quadriplegic who needs a venilator - 100%
KEY QUESTIONS:
Degree of impairment assessed objectively – a medical determination of loss of physical and/or psychiatric function (not subjectively)
When determination extent of physical impairment, psychiatric consequences not taken into account
Loss of amenities/enjoyment of life:
Compensation for disability/impairment of plaintiff’s ability to enjoy life o Hobbies, sports o Things that you used to like to do that you cannot do anymore
Largely subjective – modest sum if plaintiff is permanently unconscious (e.g. $10,000-$20,000) Skelton v Collins
Best way to answer exam questions:
Look at the facts that are provided in hypothetical situation
More information = a reason and relevance
P was active horse riding, years, all the time etc – damages = loss of enjoyment of life
Answer is in the question!
11
Pain and suffering:
Compensation for physical pain and psychological consequences (worry, frustration, anxiety)
Past and ongoing expenses
Completely subjective o Skelton v Collins – unconscious = not do receive compensation for pain and suffering
Loss of expectation of life
Where a plaintiff’s life has been shortened because of the defendant’s negligence
Compensation because of lost years – consolation or solace for plaintiff for shorted life
Modest awards (comp) = $10,000-15,000
Does not vary on age or years lost Sharman v Evans
Query whether still available for negligence claims to which Wrongs Act applies – i.e. where reductions are made
Simpson v Diamond [2001] NSWSC 1048
Held: Loss of earnings o $72,980
Loss of future earning capacity o $809,869
Non-economic o $564,175
Medical expenses (pas) o $1,122,957
Future needs o $2,029,240
Gratuitous care o $6,983,700
TOTAL = $14,900,000
Claims upon the death of a person NB: completely different than damages brought by the actual injured person
TWO claims available
1. Claim by Estate (“survival and action claim”) Administration and Probate Act
Date of accident until the date the person died (likely to be medical expenses)
2. Claim by dependents for loss of financial support Pt III Wrongs Act (dependent’s claims)
Loss of financial support and domestic surfaces
12
Both claims are available in conjunction Estate – past economic losses Dependants – future losses
No cause of action arises in respect of the death of another person except as provided by this legislation
o Barclay v Penberthy [2012] HCA 40 No one other than dependents can claim
1. Survival of action claim
Estate may proceed with the cause of action, the deceased would have had, had they lived Administration and Probate Act 1958 (Vic) – s29
Applies when deceased died as a result of the tort
Where deceased died as a result of the tort, executor can recover:
o Economic loss (medical expenses and loss of earning capacity) between date of injury and date of death (subject to caps)
Gratuitous care Future economic loss
o Funeral expenses Non-economic loss = not recoverable
o Consider: what is the position of a person who dies instantaneously?
2. Dependant’s claim (dependant = claimant)
S15 of Wrongs Act: Claimant (dependent) must show: o The death was ‘caused by a wrongful act, neglect or default’
Haber v Walker (1963) (supplement) Lisle v Brice [2002] 2 Qd R 168
o The deceased could have maintained a cause of action for damages had he/she not died o The claimant was wholly or partly dependent on the deceased, or would have been but
for the death – (dependent for financial or domestic support)
S17(2) WA dependants means such personas as were mainly or in part dependent at the time of their death or injury
o NB: must be a “financial dependency” not merely a personal relationship o Ultimately, question is whether the claimant would reasonably expect a financial benefit
from the relationship
Can claim for: o Loss of expectation of financial support
Reasonable expectation of financial support, ‘loss of chance’ of financial support recoverable
A vicissitudes of life analysis applied
De Sales v Ingrilli [2002] HCA 52 Ultimately need to work out how much of that future loss of income would have
benefited the dependants and for what period of time Remember cap in s28F
o Loss of domestic services of spouse/parent
13
Not relevant whether the widow/widower has spent money to replace the services (Nguyen v Nguyen (1990))
BUT deduction to be made from this sum for provision by a new partner or carer See also not s19A and s19B S19A -care must have been provided for at least 6 hours a week for a
consecutive 6 months before the death (or injury that caused death) S19B – limitation to average weekly earnings (or pro-rated)
o No solatium No compensation for emotions, grief or distress
o Discount rate of 5% applied to future economic losses, including loss of domestic services
o Must make a deduction for: Amounts decreased would have spent on private needs (what the person would
have spent on themselves) Benefits the claimant received under the deceased’s will Any contributory negligence by the claimant (not deceased)
o Consider: what is the position where the deceased is a child
14
NEGLIGENCE (DUTY OF CARE)
Damage
Plaintiff must have suffered a recognisable form of damage: o Personal injury o Property damage o Economic loss o Psychiatric condition/injury
PTSD Nervous shock
Transient emotions (e.g. stress, anxiety, fear) or inconvenience are not compensable forms of damage
o Emotions that ‘come and go’
Elements of negligence 1. Duty of Care
Defendant must owe a duty to the plaintiff not to create the risk of injury that occurred
2. Breach of duty
Defendant must have fallen below the standard of care expected of a reasonable person engaged in that activity
3. Causation
The breach must have caused the injury to the plaintiff
4. Remoteness of damage
The injury caused by the breach must have been reasonably foreseeable
Once the elements are established…
5. Are there any defences available to the defendant? a. Contributory negligence b. Voluntary assumption of risk
6. What damages are available to the plaintiff?
15
DUTY OF CARE Relevant legislation: Wrongs Act 1958 (Vic)
Part 10 – sets out basic general principles that need to be met for negligence
Part 11 – relevant types of principles for psychiatric injury (mental harm/nervous shock)
Part 12 – claims against public authority
Historical overview:
Plaintiff must establish the defendant owed a duty of care
Duty of care originally restricted to: o Certain legally recognised relationships e.g.
Persons in ‘common’ callings and their clients Public officer and members of the public Occupier and invitee
Heaven v Pender o Cases where there was a privity of contract between the parties
Winterbottom v Wright
Donoghue v Stevenson [1932] AC 562 (snail in bottle case)
Facts: Plaintiff went out with friend in Scotland
Ordered an ice cream float with a ginger beer (beer was opaque)
D Stevenson = manufacturer
Fills once and drinks
Refills it for second and decomposed snail appears in glass
Donoghue successful sued manufacturer as she suffered severe gastro and mental harm
Held: Manufacturer should have foreseeably seen that one of his consumers could end up suffering harm
Key notes Superseded the person who the pl dealt with (coffee shop) and could sue the manufacturer directly
Lord Atkin redefined what was duty of care
Formulated a principle called the ‘neighbour principle’ o ‘the rule that you are to love your neighbour becomes in law, you must
not injure your neighbour; and the lawyer’s question, Who is my neighbour? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation and being so affected when I am directing my mind to the act or omissions which are called in question’
Consumer = neighbour o Reasonable care must be taken to avoid acts or omissions that you can
reasonably foresee will injure your ‘neighbour’ o A ‘neighbour’ is a person who is so closely and directly affected by my
act that I ought reasonably to have them in contemplation when engaging in that act.
Duty of care is anyone who can reasonably be affected by your reasons and conduct
16
Modern day requirements
- what the plaintiff needs to prove …
NB: a duty of care will be denied where policy factors support an immunity from liability
Special relationship between the parties
Reasonable foreseeability of harm
Salient features
Established category
Established categories of duty of care
Vast majority of cases fall into recognised categories of duty of care, including:
o Doctor/patient (Rogers v Whitaker) o Solicitor/client (Hill v Van Erp) o Driver/road user; driver/passenger (Chapman v Hearse) o Occupier/entrant (relating to the physical condition of
the premises) (Australian Safeway Stores Pty Ltd v Zaluzma)
o Manufacturer/consumer (Donoghue v Stevenson) o Employer/employee (McLean v Tedman) o School/student (Geyer v Dawns (1978) 17 ALR 408)
17
‘Reasonable foreseeability’ Reasonable foreseeability needs to be shown in all cases of negligence
In most negligence cases, this of itself will determine whether there is a duty of care
KEY QUESTION:
Could the defendant reasonably foresee that negligence performance of the relevant activity would create a risk of injury to the plaintiff or to a class of persons including plaintiff?
Keep in mind that…
Defendant need not have been able to foresee the precise sequence of events that led to P’s injuries – enough that could reasonable foresee the ‘a consequence of the same general character’ as that which occurred.
Chapman v Hearse (1961)
Facts: 1958 – rainy dark night
Chapman negligently collided with another vehicle
Chapman’s door swung open and he was thrown out on to the road
Dr Cherry was driving on the road and stopped to help Chapman
Whilst Dr Cherry was assisting, Hearse was driving along the road and hit Dr Cherry who is helping Chapman and later died
Issue: Did Chapman owe Dr Cherry a duty of care?
Held: High Court held that it was not necessary for the plaintiff to show the precise manner in which his injuries were sustained and that the defendant should of known he might be injured
It should have been foreseeable to Chapman that someone may have tried to rescue him and that someone may want to help him
Key notes Negligently driving have an accident someone will probably help him someone may hit him = Chapman should have known what his reckless driving may have caused
Unforeseeable to the plaintiff o Palsgraf v Long Island RR Co o Bale v Seltsam Pty Ltd o Bourbill v Young
Palsgraf v Long Island RR Co
Facts: Man at train station carrying parcel and jumped aboard the train
Guard on the train thought he would fall out and reached out his hand
Man on platform tried to help and pushed him on to the train
Parcel dislodged from his arm and fell on train tracks and it contained fireworks = explosion
Struck the brass strap and hit a bystander
Issue: Was it foreseeable?
Held: Chief Justice Cardozo held that it was not foreseeable event
The guardsmen were not required to see that the dislodge of the parcel would injure somebody on the other side of the platform
Held it was far-fetched/fanciful
18
Bale v Seltsam Pty Ltd
Facts: Suffered injuries by washing her husband’s clothes which held asbestos
Issue: Could the employer reasonably foresee the wife may be injured?
Held: Too far-fetched and unforeseeable to know that the wife would suffer injuries
Jones v Southern Grampians Shire Council (2012)
Facts: Husband died – woman washed the clothes covered in asbestos dust
Successfully sued manufacturer of the asbestos pipes – James Hardy
Successfully sued employer (Southern Grampians Shire Council)
Sydney Water Corporation v Turano (2009)
Facts: Laid down a water main (20 yrs earlier) and it affected a tree
Tree fell over and hit a car and hurt the driver and his family
Held: Did not owe duty of care because they could not see that laying the water main would undermine the tree, 20 years later.
Salient features/control factors
Where case does not fall within an established category, courts use other factors/salient features to determine duty question.
These include claims for: o Psychiatric injury o Injury caused by an omission o Liability of defendant for serving alcohol o Economic loss o Injury caused by an independent contractor
What factors?
In the novel cases, courts evaluate a number of factors to determine whether a duty of care should be imposed
o Control of the activity by D (Crimmins v SIFC) o Vulnerability of P (inability to take steps to protect self (Crimmins v SIFC) o Knowledge by D of the risk (Crimmins v SIFC) o P’s individual autonomy and personal responsibility (Kirkland-Veenstra v Stuart; CAL
No14 v Scott) o The need to preserve the coherency of the law (Sullivan v Moody; CAL No 14 v Scott) o Indeterminacy of liability (Harriton v Stephens) o Whether imposition of liability would lead to defensive practices (Sullivan v Moody;
Tame v New South Wales)
Demise of ‘proximity’ and rise of a multi-factorial approach
Proximity is not a legal concept in its own right and should not be used as a determinant of a duty of care
Novel matters (salient factors) o Hill v Van Erp
19
o Sullivan v Moody
Courts now adopt an incremental, multi-factorial approach in determining whether a duty of care should be imposed in these special duty situations
…………………………………………………………………………………………………………………………………………………………….
The scope of the duty of care and issues of personal responsibility
Questions of personal autonomy and responsibility will be relevant factors determining whether a duty of care exists
No general duty at common law owed to customers to monitor or limit service of alcohol or to ensure their safety once they leave the premises
o Compare with a duty to ensure physical premises safe Cole v South Tweed Rugby Football Club C.A.L No14 v Motor Accidents Insurance Board
C.A.L. No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47
Facts: Scott was driving a motorbike from defendant’s hotel and ran off the road and suffered fatal injuries (alcohol – 0.253 bac)
Was at a pub beforehand and drunk a large amount of alcohol
Widow sued on behalf, saying he breached the duty of care to let him drink and drive
Held: Court found that he did not owe a duty of care to Scott o Cannot judge how drunk somebody else is o Could not oversee everyone o More than one more may serve them o An adult should know the consequences of drinking
Key notes: Bartender cannot stop somebody from leaving = false imprisonment
Same principles should apply a fortiori to private hosts
Policy considerations: Immunity from liability No duty of care where inconsistent with public policy considerations:
o Legal advocates immune from liability for negligent conduct of case
Giannerelli v Wraith D’Orta-Ekenaike v Victoria Legal Aid
Finality of litigation
Confidence in the administration of justice NB: Other countries (UK, Canada) have abolished this immunity
o Child protection agencies investigating possible sexual abuse
Sullivan v Moody
Duty of care is to the child only
Liability would be incompatible with statutory regime imposing duty to investigate
o Proper and effective investigations would be impaired, as would result in defensive practices
o Best interests of child inherently likely to conflict with interests of parents
20
Liability also incompatible with other areas of the common law: interferes with settled principles of defamation law
Indeterminacy of claim – large range of potential suspects X (minors) v Bedfordshire CC [1995] 2 AC 633
o Police force immune from liability when investigating a crime (to suspects) Tame v NSW Hill v Chief Constable of West Yorkshire
Tame v NSW
Facts: Police officer mistakenly took an alcohol reading from Tame and other driver and recorded as 0.14 (should have been nil for Tame)
Tame suffered number of injuries and claimed from other driver
Tame tried to sue police for nervous shock and as a result caused her to suffer severe depression
Held: That a clerical mistake of recording the wrong amount was not foreseeable
Took place while investigating the situation of the car accident
Incompatible with trying to work out what happened
Police officers continued…
Not a blanket immunity; does not extend to all aspects of police operations, where exercising a specific power e.g. arrests
o State of Victoria v Richards [2010] VSCA 113 o When driving, owe a duty of care to others even though they may be in pursuit of an
offender
State of Victoria v Richards [2010] VSCA 113
Facts: Went to appeal where the plaintiff was sprayed with capsicum spray by police as they were arresting an offender at her shop
Held: Not immune to owe a duty of care to other people
Other immunities:
Armed forces when engaged in enemy operations in time of war
‘Wrongful life’ claims
See also Good Samaritan and volunteer immunity
Modern tendency: except where compelling policy consideration, ordinary negligence principles apply.
21
‘Wrongful birth’ and ‘wrongful life’ claims ‘Wrongful birth’ claims allowed
o Where baby is born disabled, courts aware additional costs of raiding a disabled child Parkinson v St James and Seacroft University Hospital NHS Trust
o More contentious has been whether court should award the financial costs of raising a healthy child
Cattanach v Melchier (2003) – majority concluded that such a claim is available
The ‘legal wrong’ is not the birth of the child, but the negligence of the medical practitioner; the ‘legal harm’ is the economic loss
Normal negligence principles would permit recovery o Dr has assumed responsibility to prevent conception and should
be liable for all casually related loss
Parental autonomy to determine number of children
NB: no reduction for emotional benefits of having a child (cf claim for loss of enjoyment of life)
Abrogated in QLD, NSW and SA (Civil Liability Act 2003) o Only claim compensation for claim and suffering of the pregnancy and birth not raising
the child o Not awarded damages for having the child, only awarded damages for the negligence of
the doctor
‘Wrongful life’ claims prohibited o Can be brought by the actual child – should not have been born o NB: medical practitioner merely deprived parents of the opportunity to prevent or
terminate the pregnancy not causing the actual disability Harriton (by her tutor) v Stephens; Waller v James (2006) See judgment of Crennan J:
No legally recognisable loss; not possible to compare value of a life with disabilities with non-existence
Communit values about sanctity of life
No significant injustice: parent have the right to bring a claim
Liability of landlords to occupants Historical position
o Cavalier v Pope [1906] AC 428 – no duty
Modern position o General negligence principles apply
Northern Sandblasting Pty Ltd v Harris Jones v Bartlett
LL must exercise reasonable care to ensure rental premises are safe o No guarantee of safety
Liability limited to defects o A condition in the premises rendering them unsafe for ordinary use
LL is under a duty to remedy defects that are known, or should have been detected, on a reasonable inspection by LL or agent
o However, the landlord is not obliged to hire independent experts, such as electricians and builders, to inspect the premises for defects
22
Occupier’s liability
Occupiers under a duty to take reasonable steps to ensure the premises are reasonably free from defects
No ‘risk free’ dwelling houses
No duty to remove a minor defect commonly encountered that should be obvious o Neindorf v Junkovic
Duty of parents to children and the rights of the unborn child Parents not immune from liability in tort
o Hahn v Conley (1971) o Tweed SC v Carly Eden Howarth (by her tutor Trent Howarth) (2009)
Foetus has no standing to sue o AG (Qld) v T
Once child is born, a cause of action available against a third party tortfeasor o Watt v Rama o Still contentious whether child can sue mother for in utero injuries
Lynch v Lynch v Dobson (litigation guardian of) v Dobson
23
BREACH OF DUTY OF CARE
Fundamental propositions:
The element determines whether D has been ‘negligent’
The touchstone of liability is that of ‘reasonableness’
o The duty is not an absolute duty; it is a duty to take reasonable care
Adeels Palace Pty Ltd v Moubarak (2009)
o D not required to guarantee P will not be harmed, but must take reasonable care to
ensure harm does not occur
Derrick v Cheung (2001)
See also s55 Wrongs Act
Derrick v Cheung
Facts: Derrick was driving on a road, less than speed limit
21 month old toddler walked out on to road
Derrick tried to avoid and hit the child and child suffered brain damage
Held: Court of Appeal found that Derrick was negligent
High Court – not negligent because was driving less than the speed limit – it was reasonable.
The liability of D is not to be judged retrospectively, with the benefit of hindsight o Vairy v Wyong SC o Adeels Palace Pty Ltd v Moubarak
Statutory provisions affecting determination of breach:
Div 2 Wrongs Act (ss48-50) contain provisions relevant to determining whether a breach has occurred
Div headed ‘duty of care’
This is ‘apt to mislead’ as principles are evidently directed to breach o Adeels Palace Pty Ltd v Moubarak at [12] o Sydney Water
BREACH OF DUTY SECTION 48 OF WRONGS ACT
S 48(1) Wrongs Act General Principles
1. A person is not negligent in failing to take precautions against a risk of harm unless: a. The risk was foreseeable (that is, it is a risk of which the person knew or ought to
have known); and b. The risk was not insignificant; and c. In the circumstances, a reasonable person in the person’s position would have taken
those precautions
24
PART A S48(1)(a) – Reasonable foreseeability
See Mason J in Wyong Shire Council v Shirt (1980) (at 48) o ‘A risk which is not far-fetched or fanciful is real and therefore forseeable’
A risk might be small but still foreseeable o Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd (The Wagon Mound No
2) (1967)
D does need to foresee precise sequence of events: sufficient that D could reasonably foresee in a general way the manner in which the accident occurred
o E.g. Doubleday v Kelly (2005)
Doubleday v Kelly
Facts: P was a 7 year old girl and suffered injury when she fell off a trampoline on premises owed by the defendant
Got up early and went and used the trampoline – roller-skated on the trampoline (didn’t know what it was)
Rolls back and falls off trampoline
Held: Was not reasonable foreseeable that the girl would use the trampoline with roller skates on
But reasonable to see they a child would probably use the trampoline generally
Determination of reasonable foreseeability must be based on evidence presents by the plaintiff
o Sydney Water Corporation v Turano
PART B S48(1)(b) – ‘Not insignificant’ risks
Reasonable foreseeability threshold considered too low; legislature introduced a higher threshold: ‘Insignificant’ risks not compensable
Defined in s48(3): o Insignificant risks include, but are not limited to, risks that are far-fetched or fanciful o Risks that are ‘not insignificant’ are all risks other than insignificant risks and include,
but are not limited to, significant risks
‘Not significant’ risks are those of a higher probability than ‘far-fetched or fanciful’ risks but a lower probability than a ‘significant’ or ‘substantial’ risk
A risk that has a very low probability of occurring (a rare risk) might be classed as ‘insignificant’
o E.g. see Bolton v Stone o Rogers v Whitaker
25
Bolton v Stone (1951
Facts: Fencing around cricket club, road on one end and housing estate
Stone hit by cricket ball
Evidence suggested that a ball had not been hit out of the grounds in more than 30 years
Held: House of Lords – low probability – more than 30 days (low chance of occurring)
Cricket club had not breached their duty
Key notes Would have been different if there is was more common for a ball to go outside of the grounds
PART C
S48(1)(c) – Reasonableness
P must establish that it was reasonable to require the defendant to have acted in a way to
prevent the occurrence of the foreseeable risk
Two steps:
o What is the standard of care expected of the reasonable defendant?
o Did D fall below that the standard of care? – determined by the ‘calculus of
negligence’ and other facts such a personal responsibility and community
standards
Whether a reasonable defendant would have taken precautions against a risk must be
determined:
o Prospectively, and
o On the basis of the facts of the case that are proved in evidence
Adeels Palace Pty Ltd v Moubarak (2009)
Adeels Palace Pty Ltd v Moubarak (2009)
Facts: Defendant – Adeels Palace (reception and restaurant)
NYE (31/12/02) – threw a party (incl children and parties) and sold alcohol
Altercation – person involved came back in with a shotgun (but initially unarmed)
Individual shot the plaintiffs (2)
Issue: Did Adeels Palace owed a duty of care to all patrons and did not breach by not having security at the door?
Held: Should have been reasonably foreseeable that there may be problems as there was alcohol involved
It is a significant harm
Reasonable person in Adeels Palace should have taken precautions (i.e. better security at the door)
26
Breach of duty (section 48 of WA)
Ask the following three questions…
1. Is the risk of harm occurring reasonably foreseeable to the defendant?
2. Is the risk of harm significant or insignificant?
(the more significant the likelihood of harm, the more likelihood there is to be a breach)
3. Would another reasonable person in the defendant’s position, would have taken additional
precautions to avoid harm?
S 48(2) ‘CALCULUS OF NEGLIGENCE’ In determining whether a reasonable person would have taken additional precautions, courts is
to consider, amongst other things:
o Probability that the harm would occur if care was not taken
o Likely seriousness of the harm
o Burden of taking precautions to avoid the risk of harm
o The social utility of the activity that creates the risk of harm
These 4 factors drawn from the common law: Wyong SC v Shirt
Three important points:
1. A balancing exercise; no one factor is determinative
- See Bolton v Stone
- Romeo v Conservation Commission (NT)
2. Calculus not to be applied rigidly/mechanistically: Ultimate question is whether D acted
reasonably in all the circumstances
- New South Wales v Faby
3. Factors listed in s48(2) are not exclusive: other factors such as individual responsibility and
autonomy also taken into account
27
Probability of harm occurring
↓ less likely of occurring = less likely the defendant has to do anything about it
↑ high likely of occurring = more likely the defendant should do something
D might be justified in ignoring a very small (though foreseeable) risk of injury
o Bolton v Stone (1951)
o Romeo v Conservation Commission (NT) (1998)
A risk might be very low because it should have been obvious (to the plaintiff)
o Eutick v Canada Bay Council [2006] NSWCA 30
Likely seriousness of the harm
The precautionary measures reasonably expected of D will vary according to the magnitude of
the injury which might result
o Caledonian Collieries Ltd v Speirs
Caledonian Collieries Ltd v Speirs
Facts: Pl husband died at a crossing in an accident
Pl argued that Def should have installed catchpoints to stop the train
Def argued to install catchpoints was a very drastic measure
Held: Def should have taken the measure because of the seriousness of the harm
D must adopt special precautionary measures where D knows P will suffer greater damage than normal
o Paris v Stepney Borough Council
Paris v Stepney Borough Council
Facts: Pl was employed by the defendant
Pl job to repair council vehicles
Def knew that pl had only one working eye (left eye)
While working, a piece of metal struck his right eye and now was completely blind
Held: Def liable because he knew he was already half blind and should have taken extra steps to protect the employee’s safety
Should have gone the extra mile
Key notes Extra special precautions where somebody may be more likely to harm
28
Burden of taking precautions
It must be reasonably practicable for D to take precautions against the risk o Where precautions are simple and inexpensive, this will weigh in favour of a breach
Doubleday v Kelly But see failure to warn cases
Expensive precautions (especially where risk low) will militate against breach o Romeo v Conservation Commission (NT) (1998)
D not liable to harm suffered by another person as a result of the materialisation of an ‘inherent risk’
o An ‘inherent risk’ is something that can not be avoided by the exercise of reasonable care
o S55 Wrongs Act o Though D still might be liable for a failure to warn of an inherent risk: s55(3)
S 49 WRONGS ACT
Consideration of the burden of taking precautions must include similar risks of harm for which the person may be responsible: s49(a) Wrongs Act
o RTA (NSW) v Chandler (2008)
The fact a risk of harm could have been avoided in a different way does not of itself give rise to or affect liability: s49(b) Wrongs Act
o Provision yet to be definitively interpreted, but one interpretation is that intended to reflect: Derrick v Cheung
See Hamsbere v Favelle [2009]: question is not whether different conduct would have produced a different result
The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk: s49(c)
o Reflects common law principle: Gillies v Saddington (2004) Mulligan v Coffs Harbour CC (2005)
KEY POINT - If the defendant puts up precautions after the event, it is not an admission of guilt!
See also: o S14J: an apology does not constitute an admission of liability, or an admission of an
admission of unprofessional conduct, carelessness, incompetence or unsatisfactory professional performance
o S 83 (public authorities): see below – must take into account the authorities’ resources and broad range of its activities’
29
Social utility
The social justifiability/utility of D’s conduct will be taken into account o E v Australian Red Cross o But emergency services not permitted to take unnecessary risks: Watt v Hertfordshire CC
Time for assessing the risk:
Not retrospective, prospectively (at the time…)
D’s conduct is to be judged in accordance with the state of knowledge at the date of the accident, rather than the date of the trial
o Roe v Ministry of Health(1954) o See s 58(b) Wrongs Act re special skills
Community standards and intoxication:
Imposition of negligence liability sometimes said to be an application of community standards o Muilligan v Coffs Harbour CC at [3] o Thompson v Woolworths (Q’land) Pty Ltd at [36] o New South Wales v Faby (2001) at [217]: ‘Negligence law will fail … into public disrepuite
if it produces results that ordinary members of the public regard as unreasonable’
D not generally under a duty to protect P against the consequences of our intoxication o Cole v South Tweed Heads Rugby League Football Club Ltd o CAL No 14 Pty Ltd v Scott
Section 14G Wrongs Act: o In determining breach of duty of care courts must take into consideration:
(a) whether the plaintiff was acting illegally at the time of his or her death or injury; or
(b) whether the plaintiff was intoxicated by alcohol or drugs that were consumed voluntarily, as well as the level of the intoxication
Individual responsibility Series of High Court cases following Romeo emphasising individual responsibility and autonomy
o Cole v South Tweed Heads RLFC Ltd
The ultimate question is ‘reasonableness’, i.e. whether it is ‘reasonable’ to impose liability on D
Personal responsibility/autonomy: plaintiffs have a responsibility to exercise a reasonable measure of care for themselves
E.g. occupier not liable for common, everyday and apparent defects, or for failure to warn of these.
o Thompson v Woolworths (Q’land) Pty Ltd
Obvious risks
Relevant consideration: obviousness of the risk o Romeo v Conservation Commission of the Northern Territory o Woods v Multi-Sport Holdings Pty Ltd
Often important but not determinative – question is reasonableness in all the circumstances o See Vairy and Mulligan
30
Specific breach situations: Failure to warn This ground of liability favoured by plaintiff because the warning would usually be cheap and
practicable
Line of authority following Romeo: generally, no obligation to warn of an obvious risk o See Woods v Multi-Sport Holdings o University of Wollongong v Mitchell (retractable seat) o Vairy v Wyong SC
See s 50 Wrongs Act: duty of care to warn of risk satisfied if D take reasonable care in giving that warning or other information
Note – onus is on the plaintiff of proving he/she was unaware of the risk : s56(1) Wrongs Act (relates also to causation)
o Plaintiff needs to show that they would have done something differently if they knew about the risk
Woods v Multi-Sport Holdings
Facts: Plaintiff playing cricket in the premises
Plaintiff got hit in the eye with a ball
Plaintiff stated that the defendant should have warned him about the chance of getting hit with a ball
Issue: Obvious risk?
Held: Court found that the defendant was not in breach because getting hit by a ball
He had played cricket before and it was an obvious risk
University of Wollongong v Mitchell
Facts: Plaintiff went to a university graduation ceremony and stood up to take a photo, sat down and missed the chair and fell to the ground
Issue: Plaintiff said that there should have been a warning that the seat retracted.
Held: No breach of duty because the seat retracting should have been obvious to her and she should have known
31
Specific breach situations: Public authorities and recreational activities No general duty to warn of normal risks endemic to a particular recreational activity
o Enright v Coolum Resort Pty Ltd
Vairy and Mulligan: relevant considerations include: o Obviousness of risk o Range of potential hazards and risks o Natures of the accident site (particularly hazardous? Encouragement to use that
site?) o Knowledge of risk/previous accidents o Cost implications for public authorities o Aesthetic implications (how it looks)
See also RTA of NSW v Dederer
Statutory provisions applying to public authorities
Definition of ‘public authority’ in s79 Wrongs Act: includes state government departments, local councils, any other statutory authority
Section 83 Wrongs Act: In determining whether a PA has a duty of care or has breached a duty of care, a court is to consider the following principles:
a) functions required to be exercised by the PA are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions;
b) the functions required to be exercised by the PA are to be determined by reference to the broad range of its activities (ad not merely by reference to the matter to which the proceeding relates)
c) the PA may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of the proper exercise of its functions in the matter to which the proceeding relate
32
STANDARD OF CARE Reasonable position in the defendant’s position (generally, no exception cases)
Standard of the reasonable person
Objective standard
Standard of care is the of the ‘reasonable and prudent person’ in D’s position
D must exercise the skill and care that a reasonable person of ordinary intelligence, skills and experience would exercise
The person circumstances or characteristics (such as intelligence, experience or mental state) of the defendant are generally not taken into account
o Imbree v McNeilly [2008] HCA 40 o See also Miller v Miller [2011] HCA 9 – standard of care not generally variable
Imbree v McNeilly
Facts: Imbree went for a drive to NT
Took son and friend – McNeilly (learner’s permit)
Accident took place when McNeilly was driving, veered off the side of the road
Issue: What standard of care was owed to the plaintiff?
Held: High Court – reasonable person = driver (not learner driver)
Found the driver to be liable
Modification of the standard of care
A modified standard of care applies in the case of: o Children o Activities requiring special skills o Unconsciousness or automatism
Children
The standard of care is objective, but based on a reasonable child of that same age
Child expected to exercise the same degree of skill and competence and to understand risks involved as could reasonably be expected of a child of that age
o McHale v Watson
McHale v Watson
Facts: Watson (12 yr old) throw a steel stick at a post and it misses it and hits McHale in the eye
Issue: Standard of care? Not adult
Held: Watson is held to the standard of care of the ordinary reasonable 12 year old
Had not breached the standard of care because a child would not understand the dangers of the risk and danger of throwing a steel rod in the way he did
33
Parental liability:
No vicarious liability
Parents are liable if they fail to exercise a reasonable degree of control and supervision over their child’s activities
o Smith v Leurs o Curmi v McLennan
Relevant factors: o The age of the child o The dangerousness of the object/activity o The warnings given o The child’s training and experience
Special skills
Normal objective standard is that of the reasonable professional ordinary skills and competence
Defendants who hold themselves out as possessing special skills must comply with the standard of care reasonably expected of a person who possesses those skills:
o Clurelli v Girgis (defendant held himself out as a medical specialist) o Smith v Tabain (non-electrician fixing power lines)
See also s58 Wrongs Act o Cf Phillips v William Whiteley
Unconsciousness or automatism
Mental illness/impaired faculties will not of itself affect the standard of care expected of the defendant:
o Adamson v Motor Vehicle Trust o Roberts v Ramsbottom
If the defendant is unconscious or an automaton, the standard of care is reduced accordingly o Advanced warning/knowledge of symptoms crucial
SPECIFIC STANDARDS
Industry standards
Common practices in the industry existing at the date of the incident will be persuasive but not determinative
o O’Dwyer v Leo Buring Champagne bottle cork discharged once the wrapper was open Def claimed it was industry practice that the bottles are like that Court held that it didn’t matter if it was industry practice or not, it was a
foreseeable risk
o Woods v Multi-Sport Holdings Cricket ball case Plaintiff claimed that the venue should have provided helmets Venue claims that it was not the industry practice to use helmets
34
Professional standards – medical professionals
Diagnosis and treatment o The Bolam test rejected in Australian common law o At common law, it was persuasive, though not determinative, that the defendant had
acted in accordance with a reasonable body of medical opinion Rogers v Whitaker Naxakis v Western General Hospital
o BUT SEE NOW – s59 Wrongs Act Acting in accordance with generally accepted medical opinion – excuses liability
(only diagnosis and treatment, i.e. prescription of medication
o Provision of information and advice by medical practitioner Rogers v Whitaker Evidence of acceptable medical practice is again influential, though not
determinative D must advise of ‘material risks’ A ‘material risk’ is a risk:
That would influence the normal patient’s decision whether or not to go ahead with treatment; or
That that particular patient has indicated would influence her decision See now s48 requirement that risk be ‘not insignificant’ Duty to disclose is subject to ‘therapeutic privilege’
S59(1) A professional is not negligent in providing a professional service if it is established that the professional acted in a matter that (at the time the service was provided) was widely accepted in Australia by a significant number of respected practitioners in the field (peer professional opinion) as competent professional practice in the circumstances
S59 operates in practice as a ‘defence’. Onus on D professional to prove that the practice complies with peer professional opinion
Brakoulias v Karunabaran [2012] VSC 272
Grinham v Tabro Meats Pty Ltd; VWA v Murray [2012]
S59(2) Peer professional opinion cannot be relied upon if the court determines the opinion is unreasonable
This determination must be put in writing (unless a jury determination) o S59(5), (6)
S59(3) The fact that there are differing peer professional opinions widely accepted in Australia by a significant number of respected practitioners in the field concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
S59(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
35
Rogers v Whitaker
Facts: Had lost her eye earlier and tried to get cosmetic surgery on the eye
She lost the sight in her other eye
1 in 14,000 chance of it happening
Issue: Did he breach by failing to warn of the possibility of losing sight of the other act?
Held: Doctor must advise of all material risk
Doctor should have warned her
NB: but note that s59 is not limited to medical practitioners but applies to all professional providing a service e.g. lawyers, financials advisors etc
36
CAUSATION Did the defendant’s negligence actually cause the injury to the plaintiff?
………………………………………………………………………………………………………………………………………………………. ‘But for’ test – but for the defendant’s action, would the plaintiff have suffered harm?
NO – causal link YES – no causal link
……………………………………………………………………………………………………………………………………………………….
Once breach of duty established, P must then prove a causal link between D’s breach of duty and P’ harm
o RTA v Royal
P always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation
o S52 Wrongs Act
Once causal link established on the balance of probabilities, the damage becomes a ‘legal certainty’ and P can recover the full amount of the damage
o Amaca Pty Ltd v Ellis [2010] HCA 5 at [70]
RTA v Royal
Facts: Road traffic accident
Sued because of the design of the negligent because other drivers were obscured
Issue: Did that cause the accident?
Held: High Court held that the obscurity was not due to the intersection but because the driver did not judge the other driver correctly
Causally irrelevant
Section 51 Wrongs Act: Factual and Legal Causation (1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual
causation); and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the
harm so caused (scope of liability)
37
Para (1)(a): Factual Causation
Was the defendant’s negligence a ‘necessary condition’ of the occurrence of the harm?
A legislative enactment of the common law ‘but for’ test
But for ‘the defendant’s negligence would the plaintiff have suffered injury?
D’s negligence does not have to be the sole cause, but it must be a cause, i.e. an event without
which the accident would not have occurred
‘But for’ test rejected as a comprehensive or exclusive test of causation (majority in March v
Stramare)
o ‘But for’ effective at eliminating negligence as a cause; i.e. as a ‘negative criterion’
(Tabet v Gett [2010] HCA 12 at [112] per Kiefel J)
o But High Court has been increasingly strict in its application of ‘but for’
o Adeels Palace Pty Ltd v Moubarak [2009]
Amaca Pty Ltd v Ellis [2010]
Facts: Worker came across asbestos in pipes
Died of lung cancer
However, he was a very heavy smoker
Issue: Exposure to asbestos caused lung cancer?
Held: P failed because could not establish on the balance of probabilities that the lung cancer would not have occurred ‘but for’ the exposure to asbestos
Smoking was by far the most likely cause of lung cancer o No evidence that exposure to asbestos alone caused the cancer o Epidemiological evidence that the combination of smoking and
exposure to asbestos can increase risk of lung cancer; but not evidence that they must work together
o Inference could not be drawn from epidemiological evidence that combination of smoking and asbestos had actually caused P’s cancer: medical evidence that P’s heavy smoking by far the most probable cause of his lung cancer
o ‘Knowing that inhaling asbestos can cause cancer does not entail that in this case it probably did’ at [68]
‘But for’ less effective at confirming negligence was the cause:
1. Identifies background causes and coincidences as factual causes
- see e.g. Windeye J in Faulkner v Keffalinos
- RTA v Royal
- Canterbury Bankstown RLFC v Rogers
2. Unsatisfactory in determining whether a more immediate cause is a novus actus interveniens
- these cases determined according to legal causation
38
Inferences:
‘But for’ causation might be established as a matter of inference from the surrounding
circumstances
o Strong v Woolworths Limited t/as Big W [2012] HCA 5
But the evidence must support an inference that the negligent act was the probable cause of the
plaintiff’s injury, not just a possible cause
o Lithgow City Council v Jackson [2011] HCA 36
Strong v Woolworths Limited t/as Big W [2012] HCA 5
Facts: Strong slipped on a hot chip when she was already on crutches
Claims the defendant should have cleaned the area
Issue: Breach caused the injury?
Held: No evidence as to when the chip was dropped and therefore could not prove the reasonable time taken to clean
Court of Appeal - thought the chip had been dropped at 12.10pm and that there was not a reasonable amount of time to clean up
High Court – thought it was more probable that the chips were eaten before 12.10pm because they can be eaten any time in the morning
Key notes Cleaning – 15 to 20 minutes
Lithgow City Council v Jackson [2011] HCA 36
Facts: P woke up in the drain and didn’t know how he got there
Sued the council because the drain was not fenced off
Issue: Did he fall because of the unfenced area?
Held: Court rejected that he did not fall because it was not fenced
Court looked at: o Injuries o Where body found o Blood spray pattern
Wrongful diagnosis or treatment
Hotson v East Berkshire Area Health Authority
Doctor not liable for misdiagnosis unless it caused the harm on balance of probabilities (51%)
Straightforward application of ‘but for’ test: P must prove on the balance of probabilities that, but for D’s negligence, the injury would not have occurred.
Damages not available in Australia for loss of chance of a better medical outcome i.e. ‘loss of chance’ damages N/A
o See Tabet v Gett [2010] HCA 12 o See in particular Keifel J (with whom Crennan, Hayne and Bell JJ agreed)”
39
Damage is the ‘gist’ of the cause of action in negligence P must establish causal link between breach of duty and harm Standard of proof is the balance of probabilities (i.e. a great than 50%
probability) Where probability of harm is < or =50%, causal link is not established Where a >50% probability; P gets 100% of damages, where <=50%, P gets
nothing All or nothing
o See also Crennan J: Radical change in standard of proof; would require legislative intervention Policy considerations: defensive medicine; impact on Medicare, private
insurance and professional indemnity
Same approach taken in UK: Gregg v Scott o Cf cases involving loss a commercial opportunity: Sellars v Adelaide Petroleum NL
Para (1)(b): Legal causation ‘Scope of liability’:
(only look at if factual causation is established!)
Court must consider whether or not and why responsibility for the harm should be imposed on
the negligent party: s51(4)
A normative question: should liability legally be imposed?
Involves questions of principle as well as policy consideration such as personal responsibility
o See Hunter Area Health Services v Presland
At common law courts initially referred to ‘value judgments’ and ‘common sense and
experience’.
o See March v Stramare per Mason CJ at 515-516
But see now Travel Compensation Fund v Robert Tambree [2005] HCA 69
40
Novus Actus Interveniens
An intervening act or event that breaks the chain of causation between D’s negligence and
P’s injury
o A voluntary human action or causally independent event ‘the conjunction of which
with the wrongful act or omission is by ordinary standards so extremely unlikely as
to be termed a coincidence’.
See Haber v Walker per Smith J at 358
If independent even not a novus actus – D is responsible for for all of the damage, perhaps
jointly and severally with TP.
o Joint or severally liable = can be sued individually or together
If independent event is a novus actus, D is not responsible for the damage resulting from the
intervening act or event. A TP might be liable.
Test for novus actus:
Was the act or event reasonably foreseeable?
o Chapman v Hearse
If rf, was the act or event ‘in the ordinary course of things the very kind of thing likely to
happen as a result of D’s negligence’; was the injury within the ‘sphere of risk’ created
by D’s negligence
o March v Stramare per Mason CJ, p518, 519
o Mahoney v J Kruschich (Demolitions) Pty Ltd
o Travel Compensation Fund v Robert Tambree
Intervening negligent act of TP:
Negligent acts of third parties will not break the chain of causation where D’s negligence
generated the very risk of injury that occurred
o Chapman v Hearse
Medical negligence is ‘the very thing likely to occur’ where D injures P.
o Generally medical negligence will not break the chain of causation
o D and the doctor will be jointly and severally liable for the additional harm
NOVUS ACTUS INTERVENIENS
YES – there is a novus actus
interveniens
D is not responsible for the
damage resulting from the
intervening act or event.
A TP might be liable
NO – there is not a novus
actus interveniens
D is responsible for all of the
damage, perhaps jointly and
severally with TP
41
Negligent medical treatment is a NAI where ‘inexcusably bad’ or ‘completely outside of the
bounds of what any reputable medical practitioner might prescribe’ or ‘so obviously
unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury’
o Only the doctor is liable for the additional harm
(no cases for this yet)
Intervening deliberate act of TP
More likely to break the act of causation
A deliberate act by a TP will not break the chain of causation where it was within the sphere
of risk created by D’s negligence
o Adeels Palace Pty Ltd v Moubarak [2009]
o Curmi v McLennan (airgun case)
An intervening criminal act might not be ‘the very risk likely to occur’
o Rickards v Lothian
o SRA (NSW) v Chu [2008] NSCA 14
o Cf Dorset Yacht Co Ltd v Home Office
Intervening negligent acts of Plaintiff
Negligent acts by P do not break chain of causation where D’s negligence has created the
very risk that occurred
P’s damages reduced for contributory negligence
E.g. see March v Stramare per Mason CJ at [28
‘[D’s] wrongful act in parking the truck in the middle of the road created a situation of
danger, the risk being that a careless driver would act in the way that [P] acted. The purpose
of imposing the common law duty on [D] was to protect motorists from the very risk of
injury that befell [P].
Intervening deliberate acts of P
P’s act must be truly voluntary
Voluntariness negatived if D’s negligence materially contributed to P’s act (ie as a continuing
cause)
o Haber v Walker
o Medlin v SGIC
Haber v Walker
Facts: P suffered a brain injury due to car crash due to D’s negligent driving
In hospital to a long time and rehabilitation
Suffered depression and anxiety
P committed suicide – left behind wife and 8 children
Wife sued – husband only committed suicide because of the original car accident (involuntary)
Held:
42
Medlin v SGIC
Facts: Professional Medlin was injured in car accident at 56 yrs old
As a result he could no longer do his job and he voluntarily retired (but would have worked until 65 yrs old)
Sued for loss of earnings
Issue: Voluntarily retired or caused from car accident?
Held:
P’s conduct must not be judged ‘unreasonable as between P and D’ or an ‘inappropriate
response’
o Medlin v SGIO
o Mahoney v Kruschich
o P’s conduct must be ‘reasonable’ as between P and D – courts must assess whether
it is appropriate to extend D’s scope of liability to the consequences of P’s voluntary
act (s51(1)(b))
Mahoney v Kruschich
Facts: Employee sued his employer because he says he was negligent
Goes for medical treatment and suffered further injuries (Dr Mahoney)
Kruschich sued the doctor because he didn’t want to be to blame entirely
Issue: Foreseeable to defendant – further risk to plaintiff?
Held:
Refusal of life saving medical treatment, e.g. a blood transfusion?
Mahoney v Kruschich: NAI where P has acted unreasonably in the type of treatment or who
sought treatment from
o See Boyd v SGIC
o Cf Adelaide Chemical Fertiliser Co v Carlyle
43
Injury 1 –
Defendant 1 is liable for the
harm they have done
Injury 2 –
Defendant 2 is liable for the
additional damage that has
taken place
‘Take plaintiff as
you find them’
Multiple successive events
Two successive tortious events
Baker v Willoughby
‘you take P as you find P’
The second tortfeasor is liable only for the additional damage
The first tortfeasor’s liability generally remains unabated
Baker v Willoughby (1970)
Facts: P suffered damage to ankle as a result of a car accident
Took a longer paid job because of the injury – sourcing through scrap metal at factory
At work – second defendant tried to rob the factory and shot the plaintiff in the injured leg
P needed to have his leg amputated
Issue: Who is liable?
Held: Second tortfeasor is liable only for the additional damage
First tortfeasor is liable for the original damage
Performance Cars v Abraham
o See now Part IVAA Wrongs Act
Concurrent wrongdoers required to contribute only to extent of responsibility
for property damage
Plaintiff
Defendant 1
(First tortfeasor)
Defendant 2
(Second tortfeasor)
44
Injury 1 –
Defendant 1 is liable for the harm
they have done and not liable for
losses that would have occurred
anyway as a result of
that subsequent event
If losses would have occurred
anyway… the tortfeasor from
the original negligent act is not
liable to pay damages
Subsequent events is non-tortious
Jobling v Associated Dairies
A subsequent non-tortious event (‘innocent cause’) is one of the vicissitudes of life – it will be
taken into account in reducing D’s damages
D not liable for losses that would have occurred anyway as a result of that subsequent event
Consistent with Malec approach
See also Faulkner v Keffalinos
Jobling v Associated Dairies (1982)
Facts: P suffered a slip disc (1973)
Recovered and went back to work (light duties) and three years later and suffered a medical condition – completely unrelated
He could no longer work – before trial date for slip disc
Issue: What is the defendant liable for? Fair for the defendant pay for the entirety of the damage?
Held: Shouldn’t have to pay for the additional medical problem
Only pays for their damage
Faulkner v Keffalinos (1970)
Facts: 1968 – P suffered in car accident caused by D’s negligent – light work duties
1969 – P driving his car, ran into another vehicle and suffered further injuries (p’s fault) and reduced his earning capacity further – psychological and physical effects
Held: Had the second accident not occurred, the def would have to pay the pl earning capacity
But because of the second accident, the pl lost all earning capacity and the def only had to pay 1 year of earning capacity
Key notes Second event had nothing to do with the first event
Plaintiff
Defendant
(Tortfeasor)
NON-TORTIOUS EVENT
45
Failure to warn of a medical risk Doctors must warn of all material risks
o Rogers v Whitaker
P must show a causal link between the failure to warn and the injury suffered
Causal link is established if P can show she would not have gone ahead with the operation if
warned of the risk
o Rosenberg v Percival
o Chappel v Hart
Subjective, not objective, test!
o Would this patient have underwent the surgery if they knew of the risk?
o Do the benefits of the surgery outweigh the risk?
Roseberg v Percival
Facts: The plaintiff – Dr Pervcival – qualified nurse (phd in nursing)
Pl needed jaw operation and considered three different treatment options
Underwent operation and post-operative she developed a jaw disorder and was not warned of the risk
Claimed if she had been warned, she wouldn’t have underwent the surgery
Issue: Subjective test, not objective o Would that particular patient have proceeded with the operation, not
would a reasonable patient have proceeded
Held: Court has regard to: o The evidence of P (though inherently unreliable)
In other states (not Vic), P’s own testimony is inadmissible o The surrounding objective facts such as:
The health benefits of the operation – significant? The degree of the risk of the complication occurring; and The extent of harm likely to eventuate.
Section 51 – Wrongs Act
s 51(3) - If it is relevant to the determination of factual causation to determine what the
person who suffered harm… would have done if the negligent person had not been
negligent, the matter is to be determined subjectively in the light of all relevant
circumstances.
o Probably intended as a statutory enactment of Rosenberg v Percival
o Not just limited to medical cases
46
Chappel v Hart (1998)
Facts: Throat operation – plaintiff lost some volume in her voice
Had she known, would have had operation later on and by a more specialised surgeon
Held: High Court – o Majority (Gaudron, Kirby and Gummow JJ)
Causation established Applied the ‘but for’ test – the complication would not have
eventuated if surgery had taken place at a later time o Minority (McHugh and Haybe JJ)
Causation not established Dr C’s negligence had not materially increased the risk of injury
to plaintiff
Res Ipsa Loquitur ‘The thing speaks for itself’- maxim
o used rarely – absence of any direct evidence of breach or causation
Usually when things fall on people
An inference of negligence drawn where the accident would not ordinary occur without negligence on the defendant’s part
o Bryne v Boadle (barrel fell from a window in the defendant’s building)
Should only be used in the most unusual circumstances!
Three conditions: 1. The cause of the accident is unknown or unspecified 2. The accident would not, in the ordinary experience of mankind, normally occur in the absence of negligence; and 3. The object or activity was within the exclusive control of the defendant
Mummery v Irvings Schellenberg v Tunnel Holdings Pty Ltd
If the defendant can explain why something happened, res ipsa loquitur will fail
Thought see SJ Weir Ltd v Bijok [2011] SASFC 165
47
Was the specific injury suffered by the plaintiff reasonably foreseeable?
Was the injury suffered by the plaintiff the type of class of injury that is reasonably foreseeable?
Does the egg shell skull rule apply?
REMOTENESS OF DAMAGE Are the injuries that plaintiff suffered reasonably foreseeable?
Is it too farfetched, fanciful or remote? Yes – not liable.
General principles
D not liable for all causally-related injuries
Extra requirement: P’s injuries must not be too remote o Overseas Tankship (UK) Ltd v Morts Dock & Engineering (Wagon Mound No 1) o Overseas Tankship (UK) Ltd v The Miller Steamship (Wagon Mound No 2)
Rejects the ‘direct consequences’ test from Re Polemis & Furness Withy & Co Ltd
No specific provision in the Wrongs Act, but included as factor in s51(1)(b) – whether it is appropriate to extend D’s liability to the injuries
Overseas Tankship (UK) Ltd v Morts Dock & Engineering (Wagon Mound No 1)
Facts: Engineers in Sydney were careless when working and there had been an oil spill in the water
Cotton had fallen into the water
On the wharf – repair work to ship = welding
Sparks from welding flew into the water and ignited the cotton and oil in the water
Plaintiff’s wharf was completely destroyed
Issue: Too remote? Fire and water not closely related
If no
If no
48
Held: Not reasonably foreseeable that this type of damage would occur
Not liable – too farfetched
Overseas Tankship (UK) Ltd v The Miller Steamship (Wagon Mound No 2) (1967)
Facts: Fire as above
Caused damage to two other ships on the wharf
P claimed that there was a risk of fire because of the oil spillage and they should have known
Issue: Too remote?
Held: Court found that the engineers should have reasonably foreseen that there was a risk
Focus is on the injuries sustained: was that type of injury reasonably foreseeable? (‘rf’) o Cf reasonable foreseeability requirement at duty and breach stages
Risk of injury must be rf as a ‘real’ risk; a non—far-fetched or fanciful’ risk o Wagon Mound No 2
Wagon Mound cases
P’s injuries not too remote if: 1. The specific injury was foreseeable, or 2. The injury is of a type or kind of injury that was rf
Irrelevant that: a) the precise condition, or b) the precise manner in which the harm occurred, or c) the full extent or seriousness of the harm suffered …was not reasonable foreseeable.
Problem is lack of guidance of appropriate level of abstraction for determining the kind of injury o Versic v Conners
49
Manner of occurrence of harm General manner in which injury occurred must be rf
o Compare Wagon Mounds 1 and 2
It is not necessary to prove that D could foresee the precise sequence of events that led to P’s harm
See e.g. Hughes v Lord Advocate o Lord Reid: injuries caused by burns, and burns injuries were foreseeable o Lord Pearce: foreseeable that boys would mishandle lamp; injuries suffered were a
‘varian of the forseeable’
See also Jolley v Sutton LBC: foreseeable risk that children would meddle with boat at risk of serious injury
Kavanagh v Akhtar
Hughes v Lord Advocate (1961)
Facts: Defendants were working on a road and covered the manhole and put a tent up around it and placed lamps around it
Two boys (8 and 10 years old) went to have a look what was under the tent and went down the man hole with a ladder
One of the boys knocked over the lamp and caused an explosion
Eight year old suffered burns
Issue: Injury foreseeable?
Held: Burn injury was a foreseeable injury and that a boy would go and have a look of the manhole
Jolley v Sutton LBC
Facts: Council had not removed a decaying boat from a housing estate
Boys went to have a look at it and fell and the boys were hurt
Issue: Too remote?
Held: Doesn’t matter about the specific injury but the type of injury!
Kavanagh v Akhtar
Facts: Ms Akhtar – 35 years old Muslim suffered injuries to shoulder, neck, arm and jaw due to a perfume box falling on her
Due to injury in arm, could not look after her long hair
Had a haircut – very short – husband wasn’t happy about this = marriage broke down
Issue: Defendant liable for husband leaving?
Held: Court said that you need to take into account her cultural background
Defendant should have been able to reasonably foresee the chance that she may have to cut her hair
50
Extent of harm suffered D liable provided the injuries were of a kind rf, even if more extensive or serious than rf
See again Hughes v Lord Avocate o Lord Reid: injuries different in degree but not kind from those which were foreseeable
Psych injury recoverable even if more serious than rf, or exact condition not rf o MIM v Pusey o Nader v Urban Transit Authority
Contrast Rowe v McCartney S74 Wrongs Act
Nader v Urban Transit Authority (1985)
Facts: George Nader – 10 year old boy struck in the head with an electricity pole when he jumped off a bus (superficial injury and no neurological injuries)
The bus driver was negligent in opening the bus door to early
Father went to go and see a lawyer on the same day
Weeks later – George started suffering headaches and went to see a psychiatrist and was diagnosed with an illness Gancer syndrome
However, only suffered when his family was around. When they left he was fine.
Boy was fit and well but because of the way his parents reacted to the accident he had a neurological effect on the young boy
Issue: Too remote and not rf
Held: Court said that it was not too remote and the family environment had to be taken in account
‘Egg shell skull’ rule Fundamental principle: you take the plaintiff as you find the plaintiff
D liable where P has a pre-existing susceptibility which cause P to suffer far more severe damage than would normally be the case
Dulieu v White & Sons [1901] 2 KB 669 at 681: o ‘If a man is negligently run over or otherwise negligently injured in his body, it is not
answer to the sufferer’s claim that he would have suffered less injury or not injury at all, if he had not had an unusually thin skull or an unusually week heart’
Applied in Smith v Leech Brain
Robinson v Post Office
If any other normal person would suffer the same type of injury then you are liable. If that particular person suffers a higher degree of injury – bad luck.
51
Smith v Leech Brain
Facts: P worked in multi-metal factory for D
P burnt on lip when metal splashed out of the cauldron
Burn activated pre-dormant cancer cells in his body and he got cancer
Issue: Liable for getting cancer?
Held: Yes, D was liable because the cells were only activated by the defendant’s actions
Key notes Do not confuse with Malec
Name a misnomer: egg shell skull rule only applicable where original injury was of a kind that was reasonably foreseeable
o See e.g. Jaensch v Coffey o Ie rule applies to aggravations of an original injury that was rd
Also applies to social, environmental and economic circumstances o Kavanagh v Akhtar o Nader v Urban Transit Authority
NB: If the predisposition to injury might have caused the onset of the condition in the future, damages are reduced accordingly
o Smith v Leech Brain o Revise the principles from Malec JC Hutton
52
Yes
No
Yes
No
Yes
No
In summary:
Three steps to determine remoteness element:
Was the specific injury
reasonably foreseeable?
Defendant
liable
Was the injury of a type or class
which was reasonably foreseeable? Defendant
liable
Does the egg shell skull rule apply? Defendant
liable
Defendant
not liable
53
MERE OMISSIONS Omission = failure to act
General rule: no liability for a ‘mere omission’ or ‘non-feasance’ o As long as you are not the person who has caused the harm
No duty to take affirmative action to avoid a reasonably foreseeable risk of harm to the plaintiff that was not created or increased by D (ie that P has not brought about)
Reasonable foreseeability of the harm will not of itself support a duty of care: o ‘The co-existence of a knowledge of a risk of harm and power to avert or minimise that
harm does not, without more, give rise to a duty of care at common law’ per Gummow, Hayne and Heydon JJ in Kirkland-Veenstra v Stuart [2009] HCA 15.
At [88]
There must be ‘special features’ of the relationship before a duty to take affirmative action is imposed
o Kirkland-Veenstra v Stuart [2009] HCA 15
Definition of an ‘omission’: A failure to act is not an omission if the risk of harm to P was created or contributed to by P
A mere omission refers to a failure to act in situations where the defendant did not create or increase the risk of injury to the plaintiff (a situation that P has not brought about)
o Agar v Hyde; Agar v Worsley (2000) e.g. beach-goer see P drowning and fails to render assistance
Examples of failures to act that are not omissions (defendant is
liable) o Failure by the driver of a car to apply the brakes of a car: Deane J in
Sutehrland SC v Heyman
o Failure by an occupier of land to manage a risk arising from the state of the premises (eg a failure to warn of the risk): see e.g. Vairy and Mulligan; Neindorf v Junkovic
o A failure by the defendant who is operating an activity or business to take reasonable steps to ensure the safety of participants: see e.g. Woods v Multi-Sport Holdings (failing to provide a helmet)
o A failure of a medical practitioner to provide appropriate treatment or advice to a patient with whom they’re consulting: Rogers v Whittaker
54
Exceptional cases where a duty to take affirmative action is required What is the relationship between the parties??
A duty to take affirmative action is required in some exceptional cases; where there are ‘special features’ giving rise to a duty to act
o Where the relationship between P and D implies an obligation to act (‘protective relationship’) because of the control by D and vulnerability of P (cases where P not fully autonomous)
o Eg, a hospital and patient, school and pupil, prison authority and prisoner, employer and employee; parent and child
CAL No 14 Pty Ltd v Scott at [38]
Consider: Is a doctor is under a duty to go to the assistance of a stranger? o General rule: no duty (Deane J in Sutherland) o Cf Lowns v Woods [1996] Aust Torts Rep 81-376
Duty to act to prevent harm to P from criminal activities of third persons No general duty to control the actions of another to prevent harm to strangers
o Kirkland-Veenstra v Stuart [2009 HCA 15
Modbury Triangle Shopping Centre Pty Ltd v Anzil
Facts: P worked in a video store located in a shopping centre owned by the D
P was walking to carpark and was attacked by a group of men
P was seriously injured and sued the shopping centre
P claimed poor lighting
Issue: D was liable for the attack?
Held: No duty to protect or prevent the third party attack because they could not avoid that happening
Harm was caused by the people attacking not because of the carpark
D could not control the actions of the attacker
Key notes Officers in same position as any other passer-by who can see there is a danger, and could take steps to minimise the risk of harm
Exceptional situations where a duty arises to protect P from TP’s criminal acts:
(a) Protective relationships such as hospital and patent, employer and employee, school and pupil, prison authority and prisoner (New South Wales v Bujdoso [2007] HCA 76)
(b) Power to control TP’s actions or the danger on the premises See Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem Duty owed to control access to, or continued presence on, its premises of
persons who might engaged in ‘violent, quarrelsome or disorderly conduct’ See also Karatjas v Deakin University [2012] VSCA 53
55
Karatjas v Deakin University [2012] VSCA 53
Facts: Mrs Karatjas worked at a coffee shop on uni premises (not employed by Deakin, but coffee shop)
Finished work at 7pm and was walking down a dark path which wasn’t clearly lit and she was attacked
Safer route that she could have taken but it was barricaded off
Sued Deakin because she said that they owed her a duty of care
Issue: Did Deakin owe her a duty of care?
Held: 1st time to court – no duty of care needed
Eventually, Deakin was found to be liable as the university had exclusive powers of the premises including its carpark and directed staff to get back to their cars
Deakin exacerbated their control by barricading one of the path
Security knew about the man loitering around the carpark
Courts established that it was very easy to remove the barricades that were there
Duty to act to prevent P harming self? Stuart `v Kirkland-Veenstra [2009] HCA 15 per Gummow, Hayne and Heydon JJ:
No duty of care owed by police: a duty could not be established merely because the police had the power to act, and could reasonably foresee that Mr V would harm himself if they did not.
No ‘special features’ of the relationship that would impose a duty to act: o Personal autonomy leaves it to the individual to decide whether to engage in self-
harming conduct o P him or herself is in control; not the police o Officers themselves did not put Mr Veenstra in harm’s way
Stuart v Kirkland-Veenstra [2009] HCA 15
Facts: Police officers were doing their rounds and came across Mr Veenstra sitting in his car in a carpark and noticed pipe in exhaust pipe and windows up
Went over to the car and questioned him and he said he was fine and he would go home and would consult his doctor
He later committed suicide in the same way he was going to before
Mrs Veenstra sued the police and State of Victoria for her psychiatric injury because her husband’s suicide
Said they breached duty of section 10 of the Mental Health Act could be apprehended and they owed a duty of care for them not to commit suicide
Issue: Duty of care owed by the police to stop him from committing suicide?
Held: Duty of care was not breached because there was no personal relationship established.
Personal autonomy was looked at as it was his personal autonomy to commit suicide
Just because they had the power doesn’t mean they have a duty to stop him
S10 of MHA gives police discretionary powers
Key notes Police officers did not put Mr Veenstra in harm’s way but he put himself there
56
Liability of publicans to drunken patrons No general duty at common law owed to customers to monitor or limit service of alcohol or to
ensure their safety once they leave the premises o Cf a duty to ensure physical premises safe o Cole v South Tweed Rugby Football Club o C.A.L No 14 Pty Ltd v Motor Accidents insurance Board; C.A.L No 14 Pty Ltd v Scott [2009]
HCA 47 (see in particular Gummow, Heydon and Crennan JJ) No duty of care Individual autonomy and responsibility of drinkers:
‘[I]t is a matter of personal decision and individual responsibility how each particular drinker deals with [the] difficulties and dangers [of alcohol consumption]. Balancing the pleasures of drinking with the importance of minimising the harm that may flow to a drinker is also a matter of personal decision and individual responsibility. It is a matter more fairly to be placed on the drinker than the seller of the drink. (at [54])
Liability of public authorities for omissions Liability of a PA where it has failed to exercise a discretionary statutory power to avoid a
reasonably foreseeable risk to P
Section 85 Wrongs Act:
‘In a proceeding, the fact that a public authority exercises or decides to exercise a function does not
of itself indicate that the authority is under a duty to exercise the function or that the function
should be exercised in a particular circumstances or in a particular way.’
General rule: PA is not under a duty to act merely because it knows of the risk of harm and has
the power to avert the harm
o Kirkland-Veenstra v Stuart [2009] HCA 15
Relevant factors determining liability laid down in a series of High Court decisions:
o Sutherland SC v Heyman
o Pyrenees SC v Day
o Crimmins v SIFC
o Graham Barclay Oysters Pty Ltd v Ryan
o Kirkland-Veenstra v Stuart [2009] HCA 15
Sutherland SC v Heyman
Facts: P sued the council for failing to inspect foundation of property
House was built on piece of land that was scoping
Foundations were inadequate and unsafe
Repairs were carried out but it lost value
P claimed that they should have enforced building inspections and under the Act at the time
Council’s fault the property has devalued
Issue: Duty of care?
57
Held: Council did not owe duty of care because they had discretion to act but they didn’t need to
Obligation to P to do their own inspection on property
Pyrenees SC v Day (1998)
Facts: A couple had decided to rent out a property in Beauford – part of residual and part was business (fish and chip shop)
One night P lit the log fire and woke up to the house in flames
Family out of property but entire property was destroyed
Shop next door (owed by Mr and Mrs Day) was destroyed by the fire
P didn’t know that there was a defective chimney but the landlord and council did know
CFA had been involved and they had told the landlord that there was a defective chimney and that it had to be fixed
Council had powers to deal with specific premises that had defective chimneys (CFA also notified local council)
Landlord had been told by CFA that he could not rent it out until it was fixed
Issue: Council had a duty of care?
Held: High Court – majority held that the Council did not see through that the defective chimney was fixed
Did not carry out its responsibilities
Summary of ‘control factors’ from these PA cases
P must show that:
PA knew, or ought to have known, of a risk of harm to a specific class of persons of which P is one; and
PA was in a position to directly control risk;
P was vulnerable and dependent on PA to protect against the risk (risk of such magnitude or complexity that P could not protect own interests);
The power was passed for the benefit of P or a class to which P belongs, rather than for the benefit of the public generally
The failure by the PA was an operational matter rather than a policy determination; and
The imposition of liability would not be inconsistent with the statutory scheme
Crimmins v Stevedoing Industry Finance Committee
Facts: Crimmins was employed as a waterside worker between 1961-1965
He unloaded asbestos in thin bags from the ship (airborn) without protective equipment
No one can told him of the risk of working with asbestos
1967 – diagnosed of a disease related to asbestos (fatal)
Before he died, he sued for negligence
Issue: Duty on the authority?
Held: The defendant authority owed a duty to the P to protect him from the asbestos
Workers are vulnerable and dependent on their employer
58
Casual employee – detached from the rest of the workplace
Did not have choice of where he wanted to work
Defendant knew of the risk and did nothing to protect the plaintiff
Key notes D owed a duty to exercise its powers to protect the workers from exposure to asbestos
Workers vulnerable and dependent on D to exercise its powers to ensure that working conditions safe
D knew of the risk and was in a position of power to control the risk
Purpose of powers was to prevent the kind of harm that befell P; P within the protected class
Imposition of common law liability not inconsistent with statutory responsibilities
Graham Barclay Oysters Pty Ltd v Ryan (2002)
Facts: Producer and distributer of oysters, the council and state were being sued
P argued that all three defendants were liable to the P when he suffered by eating contaminated oysters and contracted Hep A
Due to heavy rains, there was risk of viral contamination and the company stops cultivating oysters
When the rain stopped they got the oyster tested and they came back negative to a few tests
Unfortunately, lab did not pick up another contamination which led to Hep A
Grant Ryan & ors ate oysters = class action
Council – didn’t protect the lake
State – didn’t protect the people
Issue: Who had a duty of care?
Held: Court dismissed the claim against Council o No direct control over oyster production; only general powers to
control environmental pollution o Oyster industry an intervening level of decision making o Powers were for the benefit of the public generally (and the
environment), not for the benefit of oyster consumers in particular
Court dismissed the claim against State o Decision to allow oyster industry to self-regulate and not to require
regular sanitary surveys were political determination, not justicable
59
Policy vs operational decisions
A policy decisions not actionable (vs day to day operational decisions) o A decision based on financial, economic, political, social or environmental considerations
Legislative or regulatory action (or inaction) o See Graham Barclay o Sasin v Commonwealth (1984) 52 ALR 299 (policy decision to use a particular type of
safety belt in airplanes)
Governmental decisions on budgetary allocations not actionable o E.g. budgetary allocation decisions re road maintenance, construction etc not justiciable
Cf decisions made in carrying out a particular road repair job Graham Barclay
Liability of Highway Authorities ‘Highway rule’ – previously, immunity of highway authorities from tortious liability for non-
feasance (a failure to maintain or repair roads)
Immunity now overturned o Brodie v Singleton SC; Ghantous v Hawkesbury CC
Ps tripped on an uneven footpath and sued counci
Apply ordinary breach factors to determine liability
Three mains areas of liability: o Construction and design o Repair and maintenance o Inspection
application of principles from cases such as Vairy, Mulligan and Dederer, re personal responsibility, differentiation of risk etc
Commissioner of Main Roads v Jones [2005] HCA 27
See now Road Management Act 2004 (Vic) S 102: not liable for failing to act to repair a defect or deterioration in the road or remove a hazard from the road unless the road authority had actual knowledge of the particular risk which resulted in the harm
Footpath cases
See Ghantous v Hawsbury CC (companion case to Brodie): o PA under a duty to keep footpaths reasonably safe o Need to bring the defect to the attention of the Council o Footpaths must be safe for persons exercising a reasonable ‘lookout’: pedestrians
expected to exercise care by looking where they’re going and noting obvious hazards such as uneven paving, tree roots or holes
Footpaths ‘are not to be criticised at the standards of a bowling green’ (per Gleeson CJ at [7]
o PA only liable where defect is hidden (eg inadequate lighting) or in nature of a ‘trap’ o Ghantous followed in a large number of lower court decisions, see e.g.:
Boroondara CC v Cattanach [2004] VSCA 139 Ryde City Council v Saleh [2004] NSWCA 219
If you are running, you should exercise even more caution when you are running because you cannot sue for injury
60
LIABILITY FOR MENTAL HARM (Psychiatric injury; nervous shock) Recovery for ‘mental harm’ now governed by Part XI of Wrongs Act.
‘Mental harm’ means ‘psychological or psychiatric injury’: s67
P can only recover for economic loss for mental harm if the harm is a recognised psychiatric injury: s75
o E.g. depression, post-traumatic stress disorder, phobias o Not grief, anger, shock, fright – immediate emotional state – cannot claim
P can only recover for non-economic loss if the impairment resulting from the psychiatric injury is greater than 10%: s28LF
o Normal ‘grieving’ process usually will not amount to a recognised injury
Smith v Lloyd
Facts: Plaintiff was misdiagnosed with cancer and that it was incurable and he only had a few months to live
3 months later he revisits the doctor and they tell him the cancer is treatable and he was not going to die
Tried to sue for non-economic losses – loss his enjoyment of life
Medical Panel – did not reach threshold of 10%
Tried to sue for phobia of cancer recurring – Panel said that he did not reach threshold
Recovery for ‘pure’ mental harm ‘Pure’ mental harm ‘means mental harm other consequential mental harm’: s67 Wrongs Act
o No other injuries other than psych one o E.g. mental distress of seeing a loved one be killed
Now governed by ss72 and 73 of Wrongs Act
Section 72 Wrongs Act: (court will consider these)
(1) A person (the defendant) does not owe a duty to another person (the plaintiff) to take care not to cause the plaintiff pure mental harm unless the defendant foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.
Though note sub-s (3):sub-s(1) N/A where D knew or ought to have known that P is a person of less than normal fortitude
(2) For the purposes of the application of this section, the circumstances of the case include the following—
(a) whether or not the mental harm was suffered as the result of a sudden shock;
(b) whether P witnessed, at the scene, a person being killed, injured or put in danger;
(c) the nature of the relationship between P and any person killed, injured or put in danger;
(d) whether or not there was a pre-existing relationship between P and D.
61
Common law background:
Courts originally sceptical about claims, and denied on basis of remoteness of injury o See eg Chester v Waverley Corp (1939)
Psychiatric injury suffered by mother who saw child’s dead body said to be too remote
Later allowed claims to specific classes of plaintiffs, e.g. rescuers o MIM v Pusey (1970)
Jaensch v Coffey (1984)
Laid down a number of requirements: o ‘Normal fortitude’
Reasonable person and normal person o ‘Sudden shock’ o Perception with own eyes of accident or aftermath
Designed to prevent multitude of claims Alcock v Chief Constable
Facts: P while at home had heard that her husband was in an accident
Although not there at the time of the crash, she saw him immediately in post-accident treatment = aftermath
Close proximity relationship
Must have seen it yourself or heard it yourself
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd
‘Normal fortitude’, ‘sudden shock’ or direct perception of event or aftermath relevant but not necessary requirements
o Might also be relevant to causation and remoteness
Other important factors: o Pre-existing relationship between P and D o Close relationship between P and victim
See also Gifford v Strang
Annetts v Australian Stations Pty Ltd
Facts: James Annetts (16 yo) worked for the D as a jackaroo (rounds up horses)
D had conversations with James’ parents and assured he was safe
Sent him to work 100km away
He went missing and police notified his parents
Mrs Annett on hearing news collapsed
Issue: Can she claim? Wasn’t there?
Held: Court allowed the claim for pure psychiatric injury, built a relationship with the defendant over time because of telephone conversations
62
Wicks v SRA (NSW) (2010)
Facts: Police officers attended to an accident where a train had derailed and by the time they got there, the cables were lose, people had died and people were injured and people trapped (witnessed on arrival)
Police officers suffered psychiatric injury
Issue: Court had to consider s32 (72 of ours)
Held: Court said that the officers could sue for psychiatric injury because the SRA offered a duty of care to these police officers
S72 must be considered before addressing limitation on recovering damages in s73
Does not specify the consequences of presence or absence of any or all factors; must be understood against the background of Tame
Unlike Tame, s 72 requires that D could foresee a person of normal fortitude might suffer
psychiatric harm
Treating ‘shock’ and ‘perception’ as relevant considerations but not pre-conditions is consistent
with Tame
s 72 factors not exclusive.
Note that other relevant factors include:
o Personal autonomy/individual responsibility (Politarhis v Westpac Banking Corporation
[2009] SASC 96)
Legal coherence (Tame)
When claiming for psych injury, the plaintiff has to satisfy s72 and s73.
S 73: claims arising from the death or injury of another person s73(1)
This section applies to the liability of a person (the defendant) for pure mental harm to a person (the plaintiff) arising wholly or partly from mental or nervous shock in connection with another person (the victim) being killed, injured or put in danger by the act or omission of the defendant.
Meaning of ‘shock’?
Wicks v SRA (NSW): o ‘ a sudden and disturbing impression on the mind or feelings’ o Not limited to initial perceptions, but could be a series of shocking experiences
S 73(2): needs to establish one
The plaintiff is not entitled to recover damages for pure mental harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in danger; or
(b) the plaintiff is or was in a close relationship with the victim
At common law, these were not absolute requirements, but difficult for P to recover if one not present.
63
S73(2)(a):
Does this extend to witnessing the aftermath of the accident?
Wicks v State Rail Authority (NSW): o The death, injury or peril can take place over an extended period o ‘Being injured’: inferred psych injury/further physical injuries o ‘Being put in danger’: peril to passengers continued after the derailment; passengers
remained in peril until they had been rescued and taken to a safe place o Cf instantaneous deaths
Is it necessary to show that the psych harm was caused by witnessing what happened to a particular victim?
Wicks v State Rail Authority (NSW): o Does not require a relationship between the psych injury and what happened to a
particular victim o Where multiple victims, ‘victim’ to be read as ‘one or more persons’; otherwise
provision is unworkable where mass casualties
OR
S73(2)(b):
Cf NSW provision (close family member)
Is it the closeness of the relationship, not the legal status of the relation that should be important
o See Gifford v Strang
See also s73(3): P can not recover damages if the victim would have been prevented from bringing a claim for damages (e.g. because victim was not owed a duty of care or because had voluntarily assumed the risk)
o The victim must be able to claim damages for negligence o No claim = no psychiatric injury!
MIM v Pusey
Facts: Mr Pusey suffered acute schizophrenia and depression – became unemployable
Was working in the mines and he went to rescue two electricians who had been severely burnt in an explosion
He only heard the explosion but did not see it and he did not have a relationship with his colleagues
Claim for rescuers?
Issue: Owed a duty of care?
Held: Employer owed a duty of care to their employee to not cause him psychiatric harm
Key notes
Notes:
S72: could D foresee that a rescuer of ‘normal fortitude’ would suffer psychiatric harm in these circumstances? Yes:
o Sudden shock o Pre-existing employment relationship with MIM o P witness, at the scene, the victim being killed injured or put in danger – unclear
64
Jaensch v Coffey o s72: could D foresee that a spouse of ‘normal fortitude’ would suffer psychiatric
harm in these circumstances? Yes: close relationship between P and victim (spousal) sudden shock
o Is s73 satisfied? Yes: P is the spouse of the victim (s73(2)(b))
Annetts o s72: could D foresee that a parents of ‘normal fortitude’ would suffer psychiatric
harm in these circumstances? Yes: Pre-existing relationship between P and D
Assurance that son would be kept safe and properly supervised Close relationship between P and victim – son and mother
o Is s73 satisfied? Yes: P’s were the parents of the victim – s73(2)(b)
Consider: o Can a bystander ever recover? – when present at the scene!
Wicks v SRA (NSW) o Can a person who sees an accident on television (or over the web) ever recover?
No – would open the floodgates (Alcock)
Cases not falling within s73: only based on their conduct
s72 still applies
Courts to determine other factors on a case by case basis
See e.g. Tame v State of NSW (breathalysed defendant): o Psychiatric injury not reasonably foreseeable: a person of normal fortitude would
not suffer a psych injury as a result of this minor clerical error o Duty would be inconsistent with duties of police to investigate crimes o Negligence liability could interfere with settled rules of defamation
Examples of recognised categories where duty of care owed to prevent psychiatric injury:
Employer-employee o Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 (stress)
Was stressed at work for work load Sued employer for severe depression because of her workload s72 – would a regular person suffer psychiatric injury? Court held no – it is part of your job Defendant should not reasonably foresee that they would suffered harm
o Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 (bullying)
School-pupil o Cox v New South Wales [2007] NSWSC 471 (bullying)
Need to bring the issue to the employer’s attention They must have knowledge about it
65
Mustafa
Facts: P claimed for psych injury because he saw dead flies in an unopen bottle of water
P became obsessed with well-being of him and his family
Suffered depressive episode and phobia
Issue: Normal person suffer the same?
Held: Court - a normal person would not suffered psychiatric injury
Claim failed – too remote
Consequential mental harm Psychiatric injury consequential upon physical harm
s74 Wrongs Act o P is not entitled to recover for consequential mental harm unless:
D should have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken, or
D knew, or ought to have known, that P is a person of less than normal fortitude and should have foreseen that P might, in the circumstance so the case, suffer a recognised psychiatric illness if reasonable care were not taken.
o The ‘circumstances of the case’ include the injury to the plaintiff out of which the mental harm arose: s 74(2)
NB: any exam question will be based on a pure mental harm
66
DEFENCES TO NEGLIGENCE
CONTRIBUTORY NEGLIGENCE
Section 26(1) Wrongs Act:
(1) If a person (the claimant) suffers damage as the result partly of the claimant's failure to take
reasonable care (contributory negligence) and partly of the wrong of any other person or persons—
(a) except as provided in section 63, a claim in respect of the damage is not defeated by reason of
the contributory negligence of the claimant; and
(b) the damages recoverable in respect of the wrong must be reduced to such extent as the court
thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
Note s 26(4)
claims by dependants under Part III Wrongs Act not reduced because of negligence of
deceased; damages reduced only where claimant is negligent
Section 25 – determines that a ‘wrong’ is:
Act or omission that:
(a) gives rise to a liability in tort in respect of which a defence of contributory negligence is
available at common law
s26(1) Wrongs Act established C.N.
claimant's failure to take reasonable care
damages may be reduced to an extent that the court thinks just and equitable
s62(1) Wrongs Act establishes the breach objective test! a) Was P negligent?
b) If so, was P’s negligence a
cause of the damage? And
c) If yes, what reduction in P’s
damages would be just and
equitable?
67
Was the plaintiff negligent and fail to take reasonable care for their own safety?
Was the plaintiff's negligence a cause of the damage?
If yes, what reduction in plaintiff's damages would be just and equitable having regard to plaintiff's share in the responsibility for that damage?
(Damages can be reduced by 100%)
o Montfroy v Roads Coportation [2005]
Negligence by P (s62 of W.A)
NB: P negligent is a failure to reasonably take care for own safety by failing to take reasonable
steps to avoid a foreseeable risk of injury to self
s62(1) Wrongs Act
o Principles that determine breach of duty also apply to determine whether the P was
contributorily negligent
Tf concepts of reasonable foresight; the ‘not insignificant’ nature of the risk
and reasonable precautions that could have avoided the risk are relevant
No requirement that P’a actions have endangered other persons
o Note that P can foresee that others will act negligently
March v Stramare
Sibley v Kais (1967) 118 CLR 424
Sibley v Kais (1967)
Facts: P was found to be contributory negligent in driving during an accident by 25% because he failed to look when crossing the road
A reasonable person would still stop and look before crossing the road
Objective standard
and
and
68
62(2) Wrongs Act:
(a) Standard of care is that of a reasonable person in position of P (an objective test)
• P’s subjective personal circumstances can not be taken into account
• Reflects common law: Joslyn v Berryman
• In the case of intoxicated passengers:
• Test is whether the ordinary reasonable sober person should have known that
capacity of driver impaired by reason of intoxication (not whether drunken plaintiff
should have known of this impairment)
(b) The matter is to be determined on the basis of what P knew or ought to have known at the time
• ie court to take into account the knowledge a reasonable person in P’s position would have,
as well as any extra knowledge that P actually had
• Reflects common law: see Imbree v McNeilly
Joslyn v Berryman (especially when drunk!)
Facts: Intoxication passengers in a vehicle
A reasonable person (sober not drunk) should have known that the driver was not in a capacity to drive
Joslyn took over driving from Berryman – she hadn’t been driving for three years
She had an accident at a t-intersection
Berryman sued for significant damages and sued the council for negligently positioning the sign
Issue: Was he contributorily negligent?
Held: District Court – 25 % to blame
Court of Appeal – had not contributed at all
High Court – all the circumstances should be taken into account, not just the driver because he should have known that the driver was drunk – damages reduced by 60%
Imbree v McNeilly
Facts: Imbree supervised McNeilly driver while he was a learner driver
They got into a car accident and the car flipped
Issue: Contributorily negligent and voluntary assumption of risk?
69
Town of Port Hendlend v Hodder [No 2] (2012)
Facts: P dived off a driver blocks left negligently at the shallow end of a swimming pool
Entered the water head first and he was made quadriplegic
Issue: Standard of care for somebody with a mental impairment
Held: Had to measure against a reasonably ordinary person not a person with a mental impairment
Reduced his damages by 10%
Standard of care: Children
Children are measured at a standard of another child that age
At common law, children not held to adult standard o Joslyn v Berryman per McHugh J
An objective test: children expected to exercise the degree of foresight and prudence reasonably to be expected of a child of that age
o Kelly v Bega County Council 11 yr old boy electrocuted when he climbed an electricity pole Measured against a child the same age
Age only compared not personality traits i.e. maturity, intelligence etc
Section 62(2): confirms the test is an objective test
Authorities interpreting s 62(2): child not held to adult standard: Child’s age relevant when determining whether contributorily negligent
o Doubleday v Kelly (rollerskate by child on trampoline)
Reasonable standard of a child of that age; the ‘reasonable’ or ‘normal’ intelligence, maturity, development and experience of a child of that age
o though child’s actual knowledge of the risks relevant: s 62(2)(b)
Kelly v Bega Valley County Council (25% reduction)
Jolley v Sutton LBC (25% reduction)
Doubleday v Kelly (no reduction)
70
Sudden emergencies:
Where appropriate, courts must take into account P has acted ‘in the agony of the moment’ created by D’s negligence – heat of the moment (fight for flight mode)
o Judged by what actions that needed to take at the very moment o Would another reasonable person act in the same way? No contrib. negligence. o See Caterson v Commr for Railways
Caterson v Commr for Railways (1973)
Facts: P was carrying friends luggage into the train
P had left their son (14 y/o) on the platform
Train started to move while he was putting the luggage on
P jumped off the train in the heat of the moment and was injured
Def claimed contrib. negligence because jumping off the train
Held: Court said no contrib. negligence because he was acting in the heat of the moment
Another reasonable person would have probably acted in the same way
b) Causation
Did they cause their injuries?
D must prove P’s negligence contributed to the injuries – not necessarily the accident o E.g. failure to wear a seatbelt or crash helmet amounts to contributory negligence where
P would not have suffered injury (or would have suffered less injury) if a seatbelt had been worn
Froom v Butcher
P’s negligence must have been a real cause of the injuries o Jones v Livox Quarries
P was standing on the tow bar of a car and suffered injuries when the car ran into another car
Froom v Butcher
Facts: P was hit by a car by a negligent driver
Not compulsory to wear a seatbelt in the car but there was a seatbelt in the car
D claimed that the P contributed to his injuries because he didn’t wear his seatbelt
Held: Lord Denning – P should have warn a seatbelt and therefore had contributed to his losses
71
Apportionment principles
Apportioning blame then apportioning damages
A question of fact in each case – no binding precedents
To determine apportionment: o The ‘culpability’ of each party in terms of their respective departure from the
standard of the reasonable person Significance of P’s negligence vis a vis D’s negligence
See Paltidis v The State Council of the YMCA of Vic [2006] VSCA 122 (25% reduction)
Kelly v Bega County Council (25% reduction) Did P’s actions endanger others?
Pennington v Norris (pedestrian’s damages reduced by 20%) vs
March v Stramare (drunken driver’s damages reduced by 70%)
NB: pedestrian and driver cases – pedestrian will be less to blame
Common pedestrian’s damages reduced by 20-30% (Pennington v Norris)
Common seat belt cases – 20-30% (Froom v Butcher)
o The relative importance of the acts of the parties in causing the injuries D primarily responsible where P contributed to injuries but not accident. Tf lower reduction generally made where P’s actions only put themselves at
risk Eg injuries caused by failure to wear a seatbelt accidents - 20-30% reduction
Froom v Butcher
100% reduction
At common law, P’s damages could not be reduced to nil, i.e. there could not be a finding of 100% contributory negligence
o 100% reduction thought be incompatible with finding of negligence by D o Wynbergen v Hoyts Corporation
But see now s63 o Court can reduce damages by 100% if it thinks it just and equitable to do so o Ipp Report concedes that a reduction over 90% likely to be rare in practice
Employment
Courts are reluctant to make a finding in an employment context: Liftronic Pty Ltd v Unver
Make allowances for: o Inadvertence and misjudgement o Inattention (repetitiveness of the task, absorption in work) o Mistake due to fatigue o The conditions of work (e.g. a noisy and chaotic factory)
McLean v Tedman Czatyrko v Edith Cowan University [2005] HCA 14
72
Liftronic Pty Ltd v Unver
Facts: P had to lift a steel bar while working
D showed him and trained him about how to do the job safely and he failed to follow instructions
Held: Court found him contrib. negligent because he did not follow instructions from employer
10 minutes after training he did it
Czatyrko v Edith Cowan University [2005] HCA 14
Facts: P was lifting boxes off a truck
His colleague lifted up the ramp and he fell out of the truck
Held: Court found no contrib. negligent as it was a repetitive task and he did not deliberately not follow instructions
VOLUNTARY ASSUMPTION OF RISK Volenti non fit injuria: ‘to one who is willing no legal wrong is done’
Complete defence – if a defendant can successfully show, can walk away
D must show that P: o Knew of all the facts constituting the danger o Appreciated the exact nature and extent of the danger; and o Freely and willingly agreed to assume the risk of injury from the dangerous activity
Kent v Scattini Imbree v McNeilly
Kent v Scattini (1961)
Facts: P (16 y/o girl) and were having a water fight using a bicycle pump
Young people driving past in a car and they sprayed them with water
P got into their car to chase them to spray them with water and there was a car accident
Issue: D claimed voluntary assumption of risk
Held: Court claimed that P only assumed the risk of getting wet, not of getting into a car accident
In effect, P must be shown to have impliedly consented to the risk of injury that occurred and waived their right to bring action
Actual, subjective, knowledge required o Scanlon v American Cigarette Company (Overseas) Pty Ltd
Scanlon v American Cigarette Company (Overseas) Pty Ltd
Facts: P started smoking since she was 15 (20 cig a day)
P developed lung cancer
P sued the tobacco company for negligence
73
D pleaded voluntary assumption of risk
Held: Court held that P needs to know all the facts constituted that danger and must freely and willingly assume the risk
D claimed the risk of danger of getting cancer is very apparent – warning sign and packet and not forced to smoke
P must have complete knowledge of the risk, not just some knowledge – isn’t enough
Not sufficient that P knew there was a danger involved in the activity, or engaged in a dangerous recreational past-time; P must have a full appreciation of the full extent of the specific risk that occurred
o Randwick City Council v Muzik o Paltidis v The State Council of the YMCA of Vic
Randwick City Council v Muzik
Facts: P slipped on some algae that surrounded a rock pool
P knew there was algae and was being careful
D said that she knew it was there and therefore voluntary assumed the risk
Held: Court – didn’t know the full extent of the danger of the algae and didn’t know how slippery it was
She had no knowledge of when anybody else had slipped as well
s54 Wrongs Act: change to onus of proof in ‘obvious risk’ cases: Where –
o D raises defence, and o The risk of harm is an obvious risk, then o P is presumed to have been of the risk, unless o P proves that was not aware of the risk
S 53 definition of ‘obvious risk’: o (1): A risk that would have been obvious to a reasonable person in P’s position
Must take into account the fact that P is a child: Doubleday v Kelly o (2)Includes risks that are patent or a matter of ‘common knowledge’ o (3) Can include risks that have a low probability of occurring o (4) A risk that is not prominent, conspicuous or physically observable o (5) Does not include a risk created because of a failure to properly maintain, replace,
prepare or care for a thing that causes the injury, unless the failure itself is an obvious risk.
Eg consider a situation where a parachute fails to open
NB: s54 does not alter the requirement that P must have known and full appreciated the full extent of the risk and consented to them. Merely has a procedural effect: merely reverses the onus of proof.
- Patidis v The State Council of the YMCA of Vic of Vic (‘volleyball case’)
s54 does not apply to reverse onus of proof in cases where risk not ‘obvious’
See also s54(2): s54 does not apply where the service was a professional or health service, or for work done by another person
74
ONUS OF PROOF to prove voluntary assumption of risk
with defendant until they state it is an ‘obvious risk’ then it is the plaintiff to prove that it was not an obvious risk
Drunken passengers and drivers
A drunk passenger in a car driven by a drunk driver o Voluntary assumption of risk? o The P should have a full appreciation and knowledge that the driver was intoxicated
Banovic v Perkovic See also Imbree v McNeilly
o If they are drunk themselves, they cannot have voluntary assumption of risk o Contributory negligence? – if the driver was drunk and passenger was drunk
Joslyn v Berryman; s62 WA (elements of breach) Test is whether the ordinary reasonable sober person would have foreseen the
risk (not whether drunken plaintiff was capable of foreseeing the risk)
EXCLUSION CLAUSES / DISCLAIMER / WAIVER Negligence liability can be excluded/limited by contract
Efficacy of these clauses limited by the ACL: o Australian Consumer Law and Fair Trading Act (Vic), s22 (‘FTA’) and Competition and
Consumer Act 2010 (Cth) (‘CCA’)
ACL provides a ‘consumer guarantee’ that services will be rendered with due care and skill. See s60 sch 2 CCA:
o ‘If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that services will be rendered with due care and skill’
Clauses attempting to exclude these consumer guarantees rendered void (see, eg, s 64 CCA)
See now s139A CCA and s 22 FTA: permits providers of ‘recreational services’ to exclude/limit liability
See in particular s22 FTA: o ‘Recreational services’ means services facilitating participation in:
(a) A sporting activity or a similar leisure time pursuit; or (b) Any other activity that involves a significant degree of physical exertion or risk and is
undertaken for the purposes of recreation, enjoyment or leisure (s 22(4))
The exclusion of limitation of liability might be incorporated into a form signed by the P, or by way of sign erected prominently on the premises
o Must give notice o What is important is that the term was brought to the attention of the purchaser prior
to the supply of the services: s22(2)(e)
75
In Vic, exclusion/limitation of liability agreement not effective unless the warning/disclaimer form is in the form prescribed by the FTA regulations
o Stylistic/wording requirements See Australian Consumer Law and Fair Trading Regulations 2012 (Vic), s 6,
schedules 2 and 3
Wording requirements:
SCHEDULE 2 Regulation 6:
WARNING: If you participate in these activities your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the activities were not supplied with due care and skill or were not reasonably fit for their purpose, are excluded, restricted or modified in the way set out in or on this *sign/*notice.
NOTE: The change to your rights, as set out in or on this *sign/*notice, does not apply if your death or injury is due to gross negligence on the supplier's part. Gross negligence, in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission. See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2012 and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012.
*Delete whichever is not applicable.
Need to say how much they were liable from
Putting a sign up is ok
NB: where there is gross negligence, there is still a cause for action
i.e. is a parachute doesn’t open
only limits the liable – does not exclude gross misconduct
NB: The regulations merely prescribe the wording of the warning that must accompany the limitation or exclusion; it does not specify that the service provider must exclude or limit liability in any particular way.
Waiver does not apply in Vic where the supplier acted with gross negligence (reckless disregard for the consequences of the act or omission): s 22 (3)(b).
76
LIMITATION PERIODS S 27D Limitation of Actions Act 1958 (Vic):
Personal injury actions shall not be brought after the expiration of whichever of the following periods is the first to expire:
o The period of 3 years from the date on which the cause of action is discoverable by the plaintiff;
o The period of 12 years from the date of the act or omission alleged to have resulted in the death or person injury with which the action is concerned (‘long-stop’ limitation period).
Section 27F relevantly provides that:
(1) [A] cause of action is discoverable by a person on the first date that the person knows or ought to have known of the following facts: a) the fact that the death or personal injury concerned has occurred;
- See Stingel v Clark [2006] HCA 37 – 31 year delay b) the fact that the death or personal injury was caused by the fault of the defendant
- See Vellar v Spandideas: P knew all the relevant factors necessary for the formulation of a cause of action, including the culpability or blameworthiness of the D
c) in the case of personal injury, the fact that the personal injury was sufficiently serious to justify the bringing of an action on the cause of action.
(2) A person ought to know of a fact at a particular date if the fact would have been ascertained by the person had the person taken all reasonable steps before that date to ascertain the fact.
S 27E: Person with a disability (including minors) at the date of the relevant act or omission:
limitation period is six years from the date on which the cause of action is discoverable by the plaintiff, or
in any event within 12 years from the date of the relevant act or omission.
S 27K: A court may, upon application, grant an extension of a limitation period where it decides that it is ‘just and reasonable to do so’.
Court must have regard to , inter alia,: o length of and reasons for the delay of the plaintiff, o the extent to which the defendant might have been prejudiced by the delay, o whether the passage of time has prejudiced a fair trial of the claim, and o the nature and extent of the plaintiff’s loss.
77
PRIVATE NUISANCE
A substantial and unreasonable interference with the use and enjoyment of land
o Goldman v Hargrave
Two categories: o Material damage; and o Intangible interferences
St Helen’s Smelting Co v Tipping
General principles: A nuisance which affects private individuals in their use and enjoyment of land
The interference must be reasonably foreseeable o Cambridge Water Co v Eastern Counties Leather PLC
Liability is strict – tort is not based on negligence – don’t need to prove negligence! o Though cf occupier’s liability for nuisances not created by it (see below)’
When the nuisance becomes apparent to the defendant, they must do something to stop it
Cambridge Water Co v Easter Counties
Facts: D was a leather manufacturer and they used chlorinated solvent in degreasing equipment in their tannery
Tannery situation 1.3 miles away from the water company – providing water to 275 people
The solvent seeped in the group and affected the water and made it unfit for human consumption
Ps brought a number of actions including nuisance
Held: Court found it to be an unforeseeable nuisance
The interference does not necessarily have to be harmful, nor result in a diminution in the value of the property
Personal injury not actionable o Hunter v Canary Wharf
Material damage: Damage to building or chattels on the land that is more than trivial
o Damage by fire (Hargrave v Goldman) or flood (Corbett v Pallas) o Damage by tree roots
Marshall v Berndt [2011] VCC 384 o Undermining the support of land
See Kebewar Pty Ltd v Harkin o Damage caused by golf balls
Lester-Travers v City of Frankston o Damage to paintwork by acid smuts
Halsey v Esso Petroleum
78
Locality of the land is irrelevant o St Helen’s Smelting Co v Tipping
Halsey v Esso Petroleum
Facts: Acid smut was being admitted from the Esso Dep – damaged chimney and different toxic smokes were coming out of the chimney
Mr Halsey had left washing on the washing line and it damaged his clothing
His car was also damages
Held: Public and private nuisance claims
Intangible interferences: Common examples of intangible interferences that are actionable in nuisance:
o Noice, smell, vibrations, smoke and fumes, dirt/dust Hasley v Esso Petroleum Munro v Southern Dairies
Everyday things cannot be considered a nuisance – watching tv, talking, cleaning etc
Munro v Southern Dairies (1955)
Facts: In Mentone – P neighbour sued the D for nuisance because they lived next to the horses – smell, noisy, attracting flies
Held: Ordered an injunction – a loss of one night’s sleep can amount to a large amount of nuisance
o Encroaching tree branches Lemmon v Webb
o Harassing telephone calls Khoransidijian v Bush
o Planes flying overhead Dennis v Ministry of Defence
Dennis v Ministry of Defence
Facts: Mr and Mrs Dennis had a property and fighter jets were flying over their land during pilot training and they sued for private nuisance
Expert – measured the noise and said it would interfere will your normal living enjoyment
Held: Court – even though the Royal Corps were training for a public interests, however something that is a public interest should not interfere in somebody’s normal enjoyment of their land
79
Hunter v Canary Wharf (1997)
Facts: Interference with television reception caused to the building construction nearby
Interference of our enjoyment of watching television
o Watching and besetting Animal Liberation (Vic) Inc v Gasser
Filming into their backyard
Justice Young – was a private nuisance to them and it was an infringement of their privacy and enjoyment to land
Raciti v Hughes
o Cricket balls or golf balls hit onto the property Miller v Jackson Lester-Travers v City of Frankston Campbelltown Golf Club Limited v Winton
Generally the argument that the P came to the nuisance on their own is a very weak argument
Lester-Travers v City of Frankston
Facts: P property backed on to the golf club
12 months – picked up 35 or so golf balls
People would wander in to get golf balls
Would hit the golf balls would hit the roof and caused damage
P feared for her safety and she was also handicapped
D put up mesh or net to prevent the golf balls but it was ineffective
D argued that it was a reasonable nuisance and turned it on the plaintiff and said it was affecting their golfer
Held: Court held that ‘golf balls don’t arrive by appointment’
o Activities of neighbours on their own property not resulting in ‘emanations’ not generally actionable
See again Hunter v Canary Wharf
o Eccentricity of neighbours (unless perhaps the neighbour is operating a brothel!) Thompson-Schwab v Costaki
o Unsightliness of neighbour’s property
Not actionable
Test for determining unreasonableness The interference must be ‘unreasonable’ and ‘seriously interfere’ with P’s use and enjoyment of
the land.
Whether the interference is unreasonable is determined from the perspective of the ‘ordinary and reasonable’ landowner.
Landowners are expected to engage in a bit of ‘give and take’
80
o Bamford v Turley (1862) o Ordinary household activities are not actionable
Southwark LBC v Turner
The ‘unusually sensitive’ landowner is not generally protected (eg the night shift worker) o Hollywood Silver Fox Farm v Emmett o McKinnon Industries v Walker
Considerations to determine whether the interference is unreasonable (Halsey v Esso Petroleum) o Locality (ie the character of the neighbourhood) at the time the nuisance is complained
about Hasley v Esso Petroleum Munro v Southern Dairies
Timing
Frequency (eg, whether likely to be repeated)
Duration
Harmful nature of the interference o Campbelltown Golf Club v Winton
Whether part of ordinary ‘give and take’ o Southwalk LBC v Tanner
D’s motives o Malice – done in spite? May be nuisance because of your malice behind it.
Hollywood Silver Fox Farm v Emmett Raciti v Hughes
Generally the wider public interest in D’s activities not taken into account (but might be relevant to remedies)
o Dennis v Ministry of Defence
Neighbourhoods change in character over time, and it is the character of the neighbourhood at the date of the nuisance that is relevant
It is no defence that P ‘came to the nuisance’
Munro v Southern Dairies
Miller v Jackson Nor will it reduce damages Campbelltown Golf Club Ltd v Winton
Nor is P expected to change ordinary ways of life to avoid a nuisance
Lester-Travers v City of Frankston
81
Title to sue:
Who can sue?
P must have a right to exclusive possession of the land o Generally shown by a proprietary interest o Oldham v Lawson o Hunter v Canary Whard
Followed Stockwell v Victoria (2001) o But a licence granting exclusive possession will suffice
Animal Liberation (Vic) Inc v Gasser
Who is liable?
The creator of the nuisance, even if not the occupier of the premises from which the nuisance emanated.
o Fennell v Robson Excavations
The occupier of the premises from which the nuisance emanates even if the occupier did not create the nuisance where the occupier:
o is vicariously liable for the activities of the creator o authorised an activity of which the nuisance is an inevitable by-product
De Jager v Payneham & Magill Lodges Hall Inc o becomes aware of the nuisance and fails to take reasonable steps within its control to
remove the nuisance Sedleigh Denfield v O’Callaghan Campbelltown Golf Club Ltd v Winton Applies also to a nuisance created by a natural cause
Hargrave v Goldman
City of Richmond v Scantelbury
o Application of Wrongs Act unclear Southern Properties (WA) Pty Ltd v Executive Director of the Department of
Conservation and Land Management [No 2) [2010] WASC 45 (left open) Ss 44 WA: ‘This Part applies to any claim for damages resulting from negligence,
regardless of whether the claim is brought in tort, in contract, under statute or otherwise’
Landlords liable where authorise an activity of which a nuisance is inevitable or a ‘special risk’ o Harris v James o Peden Pty Ltd v Bortolazzo [2006] QCA 350
Landlord does not have to take steps to end tenancy or to alleviate nuisance once becomes aware of it
82
Defences: Consent
o Clarey v Women’s College ‘coming to the nuisance’ is not consent and is not a defence
Statutory authority o The statute imposes a duty to engage in the activity of which the nuisance is an
inevitable result Southern Properties (WA) Pty Ltd v Executive Director of the Department of
Conservation and Land Management [No 2) [2010] WASC 45 - But must show that did not act negligently
o The statute authorises D to engage in the activity and specifies the manner and location of the activity, and the nuisance is an inevitable result of that activity.
Question is whether the nuisance could have been avoided by the proper exercise of the statutory power
But where statute merely confers authority, but does not specify manner of performance, statutory authorisation not a defence
see Lester-Travers v City of Frankston
Position where permit to engage in activity unclear o Derrick Barr v Biffa Waste Services Ltd [2011] 4 All ER 1065 4 All ER 1065 – permit does
not amount to statutory authority but is conclusive evidence of reasonableness. o Cf Domachuk v Feiner
Contributory negligence not generally a defence o Campbelltown Golf Club Ltd v Winton
REMEDIES:
Abatement using self help
o Not generally favoured o P must be careful not to commit another tort, example trespass o Gazzard v Hutcheson o The costs of abatement are not recoverable unless taken to repair actual damage
Damages
o Property damage o General damages for the interference o Diminution in value of property o Consequential economic losses (eg loss of profits) o Reasonable measures taken to mitigate nuisance o Aggravated and exemplary damages are available
Gazzard v Hutcheson
Injunction
o Terms of injunction might be limited, eg Seidler v Luna Park Reserve Trust o Wider public interest might result in refusal of injunction in favour of damages
Dennis v Ministry of Defence o Infrequent interferences less likely to support injunction
Challen McLeod Country Golf Club
83
BREACH OF STATUTORY DUTY The breach of statutory duty (BOSD) action is an action that is independent of negligence –
though it often will be pleaded concurrently with negligence o Not an omission, something that someone has breached a duty is provided by a statute
E.g. in the workplace Different from negligence but can run alongside one another
Not all breaches of statutory duty give rise to an action for BOSD. They question is whether Parliament intended be enforceable in a private tort action
o Not for discretionary powers
Elements
The statute intends to confer a right to bring a private tort action.
These considerations include:
1) Whether the statute was enacted for the protection of a specific and limited class of persons, as opposed to the public generally.
BOSD not available where the legislation establishes a regulatory system or a scheme of social welfare for the benefit of the public generally
o Must be a very limited and specific duty, as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions
Specific to a class of persons, not general public o X (Minors) v Bedfordshire CC o Eg breach of traffic regulations will not normally give rise to a BOSD action –
passed for the benefit of road users (the public) generally o Phillips v Britannia Hygienic Laundry Co
Phillips v Britannia Hygienic Laundry Co
Facts: Wheel of motor vehicle came off when driving on a motor freeway and damaged the car
Accident occurred because of a defect in the axle
Statute stipulated that all fittings on the vehicle had to be fit for purpose and not cause harm
Held: Court held that it was a public duty not
BOSD available only where legislation was passed for the benefit of a particular limited class of persons
o See Anderson v Mackellar CC (breach of a by-law requiring owners of land to ensure they did not erode the support for adjoining buildings actionable by adjoining owners)
Council put together by-laws for any excavation under a building didn’t affect any of the other buildings next to it
BOSD – limited a class of people – only the people in the adjoining building
o Seiwa Australia Pty Ltd v Owners Strate Plan 35042 (breach by an owners corporation of a duty to maintain common property actionable by unit owners)
To only benefit the unit holders, not the public at large
84
o A breach of a specific safety obligation on an employer to usually found to support an action for a BOSD by an employee.
Betts v Whittingslowe
Betts v Whittingslowe
Facts: P – 14y/o and employed to use a powerful piece of machinery
Machine had a guarding press for safety but it needed to be adjusted every time it is used
P’s hand gets caught in machinery and crushed
Issue: BOSD?
Held: Court – yes there is a breach of statutory duty
Duty was an absolute duty to guard against harm for employees – failed to do that
2) Whether the statute provides for a penalty or other means of enforcing the duty, presumption that that was the only means of enforcement contemplated
X (Minors) v Bedfordshire CC
But penalty must be adequate: Anderson v Mackellar (penalty small compared with the damage likely to be suffered)
3) The imposition of civil liability must be consistent with the policy of the legislation
X (Minors) v Bedfordshire CC
See also now s 84(3): Where BOSD action is against a public authority, the imposition of liability must be compatible with the provisions and policy of the statute
The statute imposes a duty on D
D must be obliged, not merely empowered or authorised, to do the act
The duty must be imposed on D, not an independent contractor or employee
o Note that vicarious liability does not apply where the duty is imposed on the
employee
o Darling Island Stevedoring v Long
Duty placed on the person in charge and didn’t impose the duty on the
employer
Injured employee and they brought a private BOSD on the supervisor
that day
P is within the class of persons protected by the statutory duty
The legislation must be construed to determine the class of persons it intends to protect
o Cutler v Wandsworth Stadium Ltd
o Mummery v Irvings
P was hit by a piece of timber in the saw mill
Stat duty imposed on the occupier to provide a guard on all machinery
to protect the people using the machines not people walking into the
premises
P was not in the class of persons of who the statute was there to protect
85
o Cf Betts v Whittingslow
o Wynn Trssidder Management v Barkho
Fiona Barkho attempted to sue Wynn in negligence and statutory duty
when she slipped on a carpeted slope when she was leaving a shopping
centre to access the carpark which was under the care, control and
management of the defendant
Statute – breach of 2 clauses in the OHS act
Court – not in breach because OHS statute are to protect the employees
of the shopping centre not the people who visit and therefore she did
not fall within the class of persons
The harm suffered by P is within the class of risks to which the statute is directed
The harm suffered must be of a type the legislation was designed to avoid
o See again Mummery v Irvings
o Gorris v Scott
Sheep were washed overboard on a ship during a storm
Sued for BOSD – sheep had be on pens on a ship
Statute – guard for overcrowding and spread of disease not for going
overboard
The damage didn’t fall within the reason why the statute was made
D is in breach of the statutory duty
Dependent on the wording of the legislation (should or could?)
The legislation might impose strict liability (ie D liable even if not negligent and could not
have taken precautions to avoid the harm)
o Eg Galashiels Gas Co v O’Donnell (statute imposed a strict obligation to ensure
the lift was in good working condition, tf D liable even in absence of negligence)
o See also Wynn Tresidder Management v Barkho
o Seiwa Australia Pty Ltd v Owners Strate Plan 35042
Cf if duty is to do what is ‘reasonably practicable’
Unclear if Wrongs Act applies
S 44: a ‘claim for damages resulting from negligence’?
o not decided in Wynn Tresidder
Note also s84 where D is a public authority:
o Applies where the claim is commenced against a public authority (as in the X
Minors case) – imposes an additional limited on BOSD action
o PA only liable where ‘the act or omission was in the circumstances so
unreasonable that no public authority having the functions of the authority of
the authority in question could properly consider the act or omission to be a
reasonable exercise of its functions’: s84(2)
o s84(2) subsection (2) does not apply to a statutory duty that is imposed as an
absolute duty on the public authority to do so or not do a particular thing
86
P’s injury was caused by D’s breach
Use ‘but for’ test; legal causation other principles from topic 7
Application of Wrongs Act?
Cases involving a failure to obtain a licence or qualification – a presumption that machine/device operated negligently
o John Pfeiffer Pty Ltd v Canny
Defences
Contributory negligence o Some authority that cn will reduce damages
Piro v W Foster & Co Ltd Astley v Austrust Ltd
o But this might not apply where the obligation of D was absolute Seiwa Australia Pty Ltd v Owners Strate Plan 35042 Wynn Tresidder
Voluntary assumption of risk not generally available
Millington v Wilky
Facts: Wilky was employed by Milligan and was a plumber
He was asked to move a pipe but was told that his ladder was too short
He used the shorter ladder anyway
Tried to sue P for BOSD
Held: Court – employee was told not to use the ladder and was therefore not in breach because he went against what he was told to do