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7/26/2019 Torts Bible Full

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Torts Bible Full.doc

1.Negligence Template 2

1.1.Duty of Care 2

1.2.Breach of duty 3

1.3.Damage 4

1.4.CAUSAT !N 4

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1. NegligenceTemplate

[P]has a p ossible cau se o f action in negligence ag ainst [D]. To besuccessful, [P] must prove on the b alance o f probabilities ( Barnettv C helsea & Kensington H ospital Management C ommittee )that:

1. [He/she]was owed a d uty of care by [ D];

2. Theduty of care was br eached by [D];

3. Thatthe damage suffered:

1. wascaused by [D]; and,

2. wasnot too remote.

[D]must then raise d efences s uch as vo lenti, contributory negligence o r

joint illegal ac

Asthe acci dent occurred on [DATE] [P] is w ithin the 3 y ear s tatutorytime l imit for [ his/her] claim: LAA ss10-11 .

1.1.Duty of Care


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[P]must show that it is r easonably foreseeable t hat the p ossibility ofcareless c onduct of any ki nd on the p art of [D] may result indamage of any kind to [Ps] [person /property]: Donoghuev Stevenson . [NOTE: if statutory g o directly to StatutoryAuthorities].

[Test 1]: Established Category

The r elationship between [P] and [D] falls w ithin the est ablished

category of [CATEGORY: CASE].

Categories:

Roadusers: Broadhill v Young .

Driver/p assenger:Cook v C ook.

Doctor/patient:Rodgers v W hitaker .

Employer/employee:Smith v Charles Baker & Co.

Occupier/invitee: Heaven v Pender .

Manufacturer/consumer:Donoghue v Stevenson

As a d uty of care i s es tablished between [P] and [D] it is n ecessary toexamine w hether [D] breached that duty.


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[Test 2]: Novel or Special Duty Category

As t he r elationship between [P] and [D] is n ot an established category,it is n ecessary to establish that [D] owed [P] a d uty of care i nrelation to the ci rcumstances in which [P] was i njured. [He/she] mustshow that the f acts g iving rise t o the i njury fall within a sp ecialduty category.

(1)Nervous s hock(2) Nonfeasance(3) Statutory A uthorities

Category:Nervous Shock

PrimaryVictims : As [P] has al so su ffered a p hysical injury,consequential nervous shock i s al so recove rable: Donoghuev Stevenson .

As [ P] is a p rimary v ictim [he/she] d oes n ot have t o establish that thepsychiatric injury suff ered was f oreseeable in a p erson of normalfortitude.

SecondaryVictims : As a [ P] is a s econdary v ictim, [D] does n ot owe[him/her] a d uty to take car e n ot to cause p ure m ental harm unless[D] ought to have f oreseen that a p erson of no rmal fortitude m ighthave su ffered a recog nised psychiatric injury i f reasonable care w asnot t aken.

To show that a d uty of care exi sted, [P] must show that:


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[Element1] : As a resu lt of the acti ons of [ D], [P] hassuffered a rec ognised psychiatric injury in the form of [APPLY] .

[Element2] : [Ps] recognised psychiatric i njury was t heresult of the su dden shock o f [seeing/hearing] that [APPLY], ratherthan mere gri ef or em otional exhaustion: Jaenschv Coffey.

[Element3] : [Ps] psychiatric i njury m ust have beenreason ably foreseeable t o [D] at t he t ime: McLoughlinv OBrian . [P] does not have to have no rmalfortitude as l ong a s t he impact would be t he sam e for a p erson ofnormal fortitude: Tame .

Toestablish reaso nable foreseeab ility the f ollowing factorsaffecting [P] must be t aken into consideration (its aweighting game Louie!):

1. Closerelationship of [ P] with original vi ctim : extends t oanyone w ho is bou nd by a re lationship of love an d affection. Certainclasses ( parents/spouses) are p resumed to have this r elationship:

Alcock v Chief of South Yorkshire Police ;

2. DirectSensory Perception/Aftermath:


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i. Hearingis sufficient : Hancock v Wallace :was n ot at accident, not at hospital, told over t he p hone.

ii. Seeing : Alcock : it is i nsufficient to

see i t on TV if individuals can not be i dentied, it is l imited tothose act ually present.

iii. Aftermath : Jaensch v Coffey : only saw

victim go into operating room; Spence vPercy : af termath limited by time; death o f victim after3yr com a i s t oo far r emoved in time; Alcock :identication at morgue i s n ot close en ough.

3. AntecedentRelationship : between [P] and [D]. Annetts :phone cal l established relationship. Dutyowed due t o the o rdinary p rinciples of negligence, closeness ofrelationship between D and P combined with Ds control andrisk to so n.

4. SuddenShock : cannot be accum ulated overtime: Annetts .

". GruesomeFactor : nature o f the i njuries:

Hancock v Wallace .


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%. Control :degree of c ontrol exercised by [D] over s afety of victim: Gifford .

[Element4] : Policy Issues

Despiteshowing that [D] may owe [P] a d uty of care, control mechanisms m aylimit this d uty. These i ssues i nclude: Sullivanv Moody

i. Indeterminacy :recovery will risk creat ing an indeterminate l iability to anindeterminate nu mber of people.

ii. Disproportion :may impose an u nreasonable or di sproportionate bu rden of [D].

iii. Disincentive :litigation may operate a s a disincentive t o rehabilitation.

i:. Coherencyof t he Law :

TentativeConclusion

Basedon [APPLY], it would be [ likely/unlikely] that [D] owed [P] a d uty of

care. As su ch, it [is/isnt] necessary to determine w hether[D] has breac hed [his/her] duty.


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PureNervous Shock : Hancock v Wallace father was a s econdary h earsay victim,not at accident, not at aftermath, but told over p hone t hat persondecapitated may h ave been his son; Pl recovered because ofextremely close r elationship with victim.

Category:Nonfeasance f ailure t o a ct

Thegeneral rule i s t hat [D] does n ot hav e a duty to take p ositive act ionfor t he sa fety of [P]: Stovin v Wiseunless t here i s a:

1. Pre-existingprotective rel ationship between [P] and [D] imposes a p ositive d utyto act :

i. Teacher/student :Richard s v V ictoria : must takereaso nable st eps t o p rotect students; Geyerv Downs : on ce school grounds open ed, duty o f carearises;

ii. Prisoner/prisonauthority : L v C th :must separate violent offenders from those on re mand.

iii. Occupier/visitor :Romeo v N T Conservation Commission


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i:. Employer/employee:Paris v S tepney B orough

2. Dutyto prevent 3 rd party cau sing h arm to [P] :

i. Child/parent :Smith v L eurs :a d uty to prevent child from causing injury t o others; Curmiv McLennan : p arent liable

because gun was readily available to child;

ii. Guests/hotel :Chordas v Bryant : a d uty ofcare o wed to protect patrons; Wormald vRobertson : h otel liable b ecause o ffender had beencomplained about, but hotel did nothing u ntil he ass aulted anotherguest.

3. Statutemay impose a du ty to act : Where an Act creates anobligation and provides enf orcement in a speci ed manner, as ageneral rule, performance cant be en forced in any o ther way:Bishop of Rochester v B ridges.

TentativeConclusion


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Asthe r elationship between [P] and [D] is t hat of a [ APPLY], it would

be [likely that [D] ed necessary t o d etermine w hether [D] has breached their duty.

Category:Statutory A uthorities

For[P] to succeed in a cl aim against [D], the cou rt must decide t hat [D]is under a common law duty to exercise statutory p ower and whenexercising power they a re i s u nder a d uty to t ake r easonable car e:

Anns v London Borough of Merton .

[KeyPrinciples: Anns v London Borough of Merton

1. IfSA exceeds power and thereby causes damage, it will be liable

2. If

it has a d uty to act and its f ailure t o act causes d amage, it will be liable

3. IfSA has n o statutory obligation to act, it is n ot liable f or anyfailure t o act except when by its co nduct it places i tself in such aposition.


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4. Whereit exercises p owers i n respect of operational functions, it will beliable]

[Element1]: Legislative Intent

[P]must show that the A ct establishing the [ statutory authority]intended for it to be l iable for [APPLY]. If given power discretionary, if given duty m andatory.

[Element2]: Did the au thority h ave a C L duty t o exerc isestatutory p ower ?

As[P] claims that the [Statutory A uthority] owed [him/her] a d uty o fcare t he co urts w ill examine the following salient factors:Crimins [NOTE: a no answer to an y factorwill result in no duty arising]

i. ReasonableForeseeability: that their act or om ission mightresu lt in injury to [P]

ii. Classof Peop le: d id the au thority have t he p ower t o protect

the i nterest of a sp ecied class o f people i ncluding the[P] rather t han the p ublic at large.


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iii. Vulnerability :[P] was es pecially v ulnerable an d could not reasonably beexpected to a dequately saf eguard h imself or interests

i:. Knowledge :knew or ou ght to have kn own of an existing ri sk of harm to aspecic cl ass of p eople

:. ImposeLiability : would the imposition of a d uty of careimpose l iability with respect to the [ Ds] exercise o fcore p olicy making o r quasi-legislativefunctions? I f yes, no duty.

:i. OtherIssu es:

1. Control :was t he a uthority in a p osition of control: BarclayOysters

2. Resources :the ab ility of t he SA to afford to undertake measures.

3. SuperveningPolicy Reasons : e.g. indeterminacy

1. PyreneesCouncil v Day 1998 : Council failed to follow up an orderdirecting tenant to rep air replace; re brok e ou t and damagedneighbouring property; held council owed a d uty to neighbours

because:

i. Council

had specic knowledge


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ii. Councilhad power to prevent it

iii. P

was vulnerable, so power to prevent amounted to a d uty

CASEDETAILS:

SutherlandS.C v Heyman : Facts:Council inspected Ps bu ildings ( but not f ootings) &approved. Cracks later appeared & P sued Held:Council was f ound negligent, but not liable as t here w as n o generalduty was ow ed to exerc ise i ts po wers. However i f Councils ac tionsgave ri se t o reliance t hen a d uty arises. Mason J spoke ofgeneral reliance.

ParramattaC.C v Lutz : Held: Adopted thegeneral reliance approach. The C ouncil owed a D OC

because it had adopted a general praderelict buildings thus P en titled to a ssume cou ncil would promptlydemolish bu ilding.

PyreneesCouncil v Day : Council failed tofollow up an order d irecting tenant to repair replace; re b rokeout and damaged neighbouring property; held Council owed duty toneighbours because: (i) Council had specic kn owledge; (ii) power t oprevent it; (iii) P was v ulnerable; so p ower t o prevent amounted to aduty. Kirby applied Caparo test: (i) Reasonable F oreseeab ility; (ii)Proximity; (iii) Fair, Just and Reasonable. Brennan appliedLegislative I ntent test: was ri ght to private recov ery intended.

Perrev Apand P/L : P may recover i f: (i)particular c lass of p eople at ri sk; (ii) t he class is v ulnerab le

because unable to protect itseon the rule that physical damage w as neces sary to found an action.


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Ryanv Great Lakes Council : No ab soluteduty owed by SA; Council ought to have known the possible dam age thatwould result from omission but failed to take reas onable st eps t oprevent the dam age. This case showed the importance offorese eability.

Crimminsv Stevedori ng : Facts:were Stevedores under D of C to warn workers ofasbestos. Held: no legislative i ntention that they wereliable. Messy case n eed (i) Rf that f ailure t o exercise st at. Powerwould cause P s i njuries ( ii) did it cause t hem to have t o warna sp ecic cl ass ( iii) was P vulnerable ( iv) was t here k nowledge ofpossible harm to P. AND DO NOT NEED (i) would such a du ty imposeliability in relation to core p olicy making (ii) would it open oodgates

TentativeConclusion

Therelevant salient factors, and in particular [ APPLY], indicate t hat[D] [would/would not] owe [P] a d uty of care. As such, it[would/would not] be necessary to determine whether [D] was under acommon law duty to take r easonable car e w hen exercising its po wer.

[Element3]: When exercising p ower did authority h ave a C L dutyto exercise reason able care?

Asit would appear that the Statutory A uthority [was/was no t]undertaking operational act s the y will give rise t o liabilityto exercise reaso nable ca re: SutherlandCouncil v Heyman


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SutherlandCouncil v Heyman : no d uty existswhen making p olicy d ecisions, but duty ex ists in administrative a ndoperational matters. The l evel at where t he d ecision is m adedetermines i f it is p olicy/operational. Policy i nvolves nance,social and political decisions. Is t he d ecision maker execu tive o rsubordinate?

TentativeConclusion

As[P] [was/was n ot] undertaking operational acts i n relation to [APPLY]it would be [ likely/unlikely] that it was u nder a d uty to takereasonable care.

[Element4]: Duty of Land Managers

Dutyarises when:

i. Foreseeable Damage : (Nagle )

ii. UseEncouraged : (Nagle, Wilmot )

iii. DangerNot Obvious (Romeo ) ( Soperv GCCC f all on wet grass)


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i. Dependingon obvious t o who, Ps p ersonal characteristics ( seeGhantous : P tripped onun-level footpath. HCA held not liable as ordi nary p eoplein broad daylight should know (obvious).

i:. Administrative,not policy, decision: (Sutherland )

CASEDETAILS:

Naglev Rottnest I sland Authority : Pl injured when d ivinginto rock pool. Because D advertised, provided facilities an dencouraged people t o swim in rock pools, D brought itself intoa rel ationship of proximity with visitors an d thus ha d a d uty of careto protect visitors f rom foreseeable ri sks D shouldhave er ected warning signs.

Wilmotv South Australia : Pl injured w hen bike riding innature r eserve; distinguishable f rom Nagle

because D did not invite visitto leave l and open was m ade at a h igh level.

Romeov NT Conservation Commission : Pl fell down cliff,sued for not having erect ed warning signs or fence. Majority = noduty owed; reasonable car e sho uld be assessed with reference t onature of land, extent of use and character of people w ho en ter. Dutyshould only ch ange w hen t he au thorities own conduct creates a r isk ofinjury o r some sp ecial relationship arises.


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TentativeConclusion

Asit would appear that [D] [APPLY] it [would/would not] owe [P] a d utyof care. As s uch, it [is/is n ot] necessary to determine w hether t heyhave b reached that duty.

Category:Novel Category

Basedon the f acts p rovided, it would appear t hat the p ossible n egligence

by [D] does not fall within n As su ch, for [ P] to have a cl aim against [D] in a n ovel situation[he/she] must show: Sullivan v M oody

1. [He/she]was a m ember of a cl ass of persons l ikely to be i njured by [Ds]

conduct; and,

2. Thelaw should allow for the incremental increase i n duty of caresituations t o t he ci rcumstances exp erienced by [P];


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1. Identifytype of harm;

2. Charact eristics

of the con duct;

3. Natureof the relationship;

4. Compareto previous d ecisions.

". Policydecisions.

Inthis c ase, [P] was [ APPLY].

CASEDETAILS:

PureEconomic Loss : The DredgeWillemstad Pipeline

belonging to primary victim ruptured, Ppipeline a nd recovered costs f or al ternate m eans of d elivery eventhough Pl had not suffered physical property damage; Plrecovered because D had peculiar knowledge t hat Pl inparticular w ould suffer economic loss, not merely a cl ass of persons.

PureNervous Shock : Hancock v Wallace

father was a s econdary h earsay victim,not at accident, not at aftermath, but told over p hone t hat person


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decapitated may h ave been his son; Pl recovered because ofextremely close r elationship with victim.

TentativeConclusion

Asit would appear that [APPLY] it would be [likely/unlikely] that [D]would owe [P] a d uty of care.


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1.2.Breach of duty

[D]would be considered to have b reached [his/her] duty to [P] if[his/her] conduct fell below that expected of a reas onable [APPLY] inthe sam e p osition: Blyth v B irminghamWater Co.

[Element1]: S tandard of c are ow ed and subjective el ementswhich may modify the standard :

1. MentalState: insanity is n ot a ci vil defence. D was i nsane, but

judged on the bases of an ordinary sane person (Ds insurerpaid so h e w as eff ectively not penalised for i nsanity): Adamsonv M otor Insurance Trust .

2. Age:where there is a m inor, his conduct should be judged based on hisability to foresee (ask: what i s t he st andard of a reaso nable 1 2yrold): McHale v Watson . But aminor w ho engages i n dangerous adu lt activities m ust conform tothe s tandard o f a reas onably prudent adult, eg driving car.

3. Skill


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1. Philipsv William Whitely : [D] must exercise t he l evel of skillthey claim to h ave. (First year lawyer or reason able lawyer)

2. Stokesv G uest, Keen & Nettlefolds : [D] will be judgedaccording to a h igher de gree o f skill when he act ually possessesthat sk ill level.

3. Rogersv Whitaker : A doctor m ust give w arnings o f risk i f apatient attaches si gnicance t o it (1/14000 chance of d amage t oeye).

4. Bolamv Frierm Barnet Hospital : d octor i s n ot neg ligentif he act s i n accordance w ith a p ractice accep ted at that time asproper by a r easonable bo dy of medical opinion, even t hough otherdoctors adopt a d ifferent practice. PERSUASIVE ONLY

4. [Ps]peculiar knowledge an d consensual relationship with [D]:the standard o f care cha nges w ith the r elationship between [P] and[D].

1. Therelationship is m odied by Ps kn owledge: Cookv Cook : normally, person al skillis i rrelevant, but P knew that D was l earning to drive, so D sstandard was t hat of a reason able learner. Also ap plies t o d rinkdrivers, depends on w hat they k now you drank see volenti.


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[Element2]: Breach of Standard of C are

[D]will have breached the st andard of c are i f a reason able p erson in[his/her] position would have reas onably foreseen t hat their conductinvolved risk of injury t o [P] or a cl ass o f persons i ncluding [P]and whether [Ds] response t o the r isk w as r easonable: WyongShire Council v Shirt .

Aforeseeab le ri sk is o ne w hich is n ot far f etched or f anciful: Wagon

Mound (No. 2) .

Inthis c ase, it would be r easonable t o suggest that [P] would be atrisk o f harm as a r esult of [D] [APPLY]

Whilea r easonable r esponse in this case w ould be [APPLY] whether this w asreasonable in the ci rcumstances will depend upon balancing themagnitude of risk ag ainst the b urden of taking precautions: WyongShire Council v Shirt .

[Test1]: Magnitude of R isk:

1. Probabilityof Harm: [D] need only guard against reasonableprobabilities, n ot f antastic probabilities: Boltonv Stone.


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Therisk o f injury m ust have been foreseeable, not f ar-fetched orfanciful: Wagon Mound (No 2) .

Standardof care exp ected of a reas onable m an requires him to t ake intoaccount the p ossibility of inadvertent and negligent conduct byothers: McLean v Te dman .

[APPLY]

2. Seriousnessof Harm : the m ore ser ious t he p otential consequences, themore pre cautions m ust be t aken: Paris vStephney Borough Council : anemployer must take m ore precautions for an em ployee with one eyethan others w ith two eyes, if there i s a ri sk to the ey es.

BurniePort Authority v General Jones : insome cases t he ri sk w ill be so h igh because of vu lnerability, thatthe st andard of care w ill amount to a v irtual guarantee o f safety,giving rise t o a non-delegable d uty to take reaso nable care ( often anissue with sub-contractors). Risk is t o be a ssessed at the t ime o fincident .

[APPLY]


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[Test2]: Burden of Tak ing Precautions:

Theonus i s on [P] to show there w ere re asonable m easures available t o[D] to limit the ri sk to [ him/her]. If shown, onus shi fts t o [D] toshow that they w ere u nreasonable/impractical in the ci rcumstances:Romeo v NTCC .

1. Costof Precau tion : as a p ercentage o f the w hole o peration, isrelevant: Wyong Shire Council v Shirt waterski ing signs, yes. Bolton v Stone cricket f ence, no.

2. Easeof Precau tion : if [D] has later p rovided for t his ri sk(i.e a fter i njury occurred) then shows t he ea se o f takingprecautions Calledonian Collieries v S piers

[Test3]: Social U tility :

Overridesfailure t o take p recautions. Court must balance t he ri sk against theend to be ach ieved.

Wattv H erfordshire S C : st andard of c are m odied by utility of

task undertaken (saving lives j usties co nsiderable ri sk).


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Pattersonv McGinlay : u tility does n ot ext inguish the st andard ofcare, just modies i t.

[Test4]: Customary or S tatutory S tandards

Thefact that [P] was n ot adhering to the st andards of careful conductdoesnt mean [he/she] is act ing unreasonably, e.g. traffic

rules.

Doesntmatter what common practice i n trade/industry is ( except doctors -Bolam ): Mercerv Commr R oad Transport . Once risk known of, mustimplement precautions: Thompson v SmithsShiprepairs .

Statutorystandards (not action for breach of stat duty) are ev idence o fnegligence j ust highly persuasive: Tucker v

McCann .

TentativeConclusion

Itwould appear that [D] [has/has no t] breached the d uty of care by[APPLY]. If this i s corr ect, it is n ecessary to determine w hether[P] has suffered damage that was caused by [D] and that damage wasnot too remote.


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1.3.Damage

While[P] has s uffered damage in the form of [ APPLY], it is necess ary todetermine w hether on the b alance of prob abilities [ D] has i n factcaused [ his/her] damage: Barnett v C helsea &Kensington Hospital Management Committee .

1.4.CAUSAT !"

[P]must show that [his/her] injuries w ould not have been suffered butfor [ Ds] negligence: Barnett vChelsea & Kensington Hospital Management Committee .

[P] should be aw are t hat the cou rt will examine t he issue ofcausation in a p ractical, common sense way, imbued with policyconsiderations: March v Stramare .

Inthis case, [P] will argue t hat but for [ APPLY FACTS: CASE] he wouldnot have suffered [his/her] injuries.

CASEDETAILS:

1)Merely causing [P] to be t o be at the scen e o f the acci dent isinsufficient to establish a ca usal connection, unless i tmaterially increases t he ri sk of injury:


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Marchv Stramare : where [D] negligentlyparked a t ruck i n the m iddle o f the r oad, which [ P] crashed into.

McKiernanv Manhire : where [P] tripped in thehospital while r ecovering from her primary i njury suffered as aresult of [Ds] negligent act, held that t ripping couldveoccurred anywhere, it was no t caused by being at the h ospital.

Pynev Wilkeneld : where [P] was wearinga n eck b race f rom her pri mary i njury suffered as a res ult of [ Ds]negligent act, which caused her to t rip and suffer further injury.Held that [Ds] negligent act was t he r eason for w earing theneck brace, therefore ab le t o recover.

Queenslandv Keeys : where an officersuffered psychiatric i njury after be ing struck by a b ullet, held that

by failing to warn him of the commissioner h ad materially increased the ri sk of serious i njury,

because had the officer known, he would have taken precautimeasures.

2)Where t here ar e al ternative cau ses, for [P] to discharge t he o nus ofproof, [he/she] must show one of the causes is more prob ably thecause:

Thecourt may nd one exp lanation is m ore pr obable t han any others: TNT

Management v Brooks : where twotrucks cr ashed and the w ife o f a k illed driver su ed, held that it wasmore probab le t hat the ot her truck w as on the w rong side of the r oad.

Ifthere are m ultiple ex planations, but all involve negligence by [D],then [P] must succeed, whichever explanation is chose: GIOv Best : where t hree p ossible cau seswhere identied, all supposing [D] was neg ligent while d riving


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Ifthere are m ultiple ex planations, the co urt will not spe culate a s t othe cause in the absence of evidence w hich show s one cau se is m oreprobable t han the o thers: West v GovernmentInsurance Office : where [P], who wasinjured by [Ds] negligent driving, suffered a mnesia an d theother passengers evidence w as i nconclusive as t o the cau se.

[NOTE ]:Where [D] pleads novus actusinterveniens :

[D]will argue t hat the [ APPLY] is an intervening act that breaks t hechain of causation.

However,[P] will argue t hat as t he [ subsequent injury] t o [P] is a

predictable con sequence of [Ds] negligence [and was l ikely t ooccur even without the intervening a ct], the d efence can not be r eliedupon t o p rotect [D] from the subsequent injury: AdelaideChemical v C arlyle . [NOTE: unless m edical treatment wasinexcusably bad: Mahoney v Kruschich ]

[Inthis case, the cha in of causation will be b roken if [APPLY FACTS TOBELOW: CASE]

1)Subsequent intentional act of a 3 rd party:

Curmiv McLennan : where t he i ntentional


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act of ring a g un was no t found to b reak t he cau sal connection, because it was a predictable consequence of leaving the gun

unattended and there w as al so a b reach of duty not to expose ot herchildren to the ri sk.

Yatesv Jones : Addiction is caused

by a NAI from theintentional actions of the d rug pusher & the ad dict to consumeheroin. The ad diction wasnt caused by the ori ginalaccident caused by Ds neg .

Havenaarv Havenaar : Voluntaryconsumption of alcohol broke t he causal chain between D &alcoholism. However if alcohol was considered the on ly methodto relieve th e pain then it isnt a NAI .

2)Subsequent negligent conduct of a 3 rd p arty unless t hethird partys n egligence w as r easonably foreseeab le:

Chapmanv Hearse : where a d octor at tendingto a car acci dent victim was s truck by a car d riven negligently by athird party, held that is r easonably foreseeab le t hat a v olunteerwill be i njured by anothers ne gligence d uring a res cue.

Mahoneyv J Kruschich P /L : A worker receivednegligent medical treatment for a i njury suffered at work d ue t o theemployers n egligence, which resulted in further com plications,held the em ployer w as l iable f or t he f urther c omplications becau se i tis p redictable t hat negligent medical treatment will be g iven.Negligent medical treatment is o nly an intervening act if it isinexcusably bad (gross).

Bennetv M inister for Community of Welfare : where


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[D] failed his d uty to seek l egal advice f or [ P] who was i njured in astate w ard, and subsequent to h is r elease [ P] received incorrect andnegligent legal advice ab out his r ight to compensation for hi s i njuryfrom a thi rd party, held that the t hird partys n egligentadvice w as no t an intervening cau se, because the reason it had to besought in the rst place w as b ecause of [ Ds] originalnegligence.

3)If there i s f ree, informed and voluntary sub sequent conduct by [P],which results i n his f urther injury, the ch ain will be b roken:

Yatesv Jones : where [P] who wasrecovering in hospital became ad dicted to drugs an d sued for t headdiction as a res ult of being in hospital, but addiction was n otfrom medication, rather from illicit drugs bo ught from a d ealer, heldthat [ Ps] free ch oice b roke the causal connection.

Havenaarv Havenaar : where [P] became analcoholic af ter an accident and sued for i t, he cl aimed it was t orelieve pain, held that voluntary co nsumption of al cohol breaks t hecausal connection, unless t here i s no other w ay to relieve p ain.

[NOTE ]:Requirement for p ositive ev idence ( the o nus of p roving causationrests very rmly o n [P])

Quigleyv Cth : Ifits i mprobable t hat the [ P] would have u sed the saf ety feature t hat[D] was n egligent in failing to provide, then there i s n o causation.[P] must prove he would have used t he feature had [D] providedit


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McLeanv Tedman : If [P] proves t here i s cau sation then [D]must disprove i t. [D] bares the ev identiary o nus of showingthat the su ggested system of work w asnt reasonable p racticable

because [P] would not have used it ev wouldnt be able t o enforce com pliance.

TentativeConclusion

Itwould be l ikely that [P] would establish that [his/her] injuries w erecaused by [D]. If this i s co rrect, it is n ecessary to determinewhether [Ps] injuries w ere n ot too remote.


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1.#.$emote%ess

Inorder to recover, [P] must show the d amage su ffered is not too remotein law.

The[damage] suffered by [P] must have been o f such kind that thereasonable man should have foreseen: Wagon

Mound No 1 . In this case, [Ps] [damage] would bereaso nably foreseeab le a s i t is n ot far f etched or f anciful that[he/she] would suffer [damage] as a r esult of [Ds] actions:Wagon Mound No 2 .

Providedthat the t ype o f harm is foreseeabl e, the ext ent of harm and theprecise m anner i n which it occurred is i rrelevant: Hughesv Lord Advocate .

[Test1] Is t he d amage o f such a k ind that the r easonableman should have foreseen: Wagon Mound No 1 .

Must consider t wo issues:

1. Kindof damage suff ered: dening it narrowly or widely impacts on theforeseeability of it, the m ore qu alications on kind of harm, theharder i t is t o foresee. Provided the t ype o f harm is f oreseeable,the ext ent of that harm and the p recise m anner in which i t occurred

is i rre levant: Hughes v Lord Advocate;and


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2. Ifit was reaso nably foreseeab le: a ri sk is r easonably foreseeab le i fit would occur to t he m ind of a r easonable m an in Ds positionand he w ould not bru sh it aside a s f ar-fetched or f anciful: Wagon

Mound No 2 .

EggShell Skull Rule: If [P] has s hown that the d amage is r easonablyforeseeabl e, then [D] is l iable f or any consequential damage w hichresu lts b ecause o f [Ps] peculiarities: Smithv Leech B rain . The t ortfeasor t akes h is v ictim ashe nds him.

CASEDETAILS:

Tremainv P ike Facts: Employee g ot a rare d isease f rom ratwee, sued for no t controlling plague Held: Disease con tractedfrom rat bite or f ood poisoning w ould be Reasonably Foreseeable; butdisease c ontracted from rat wee i snt Reasonably Foreseeable.

Naderv UTA Facts: Boy fell off bus, minor i njuries;developed a p sychological disorder p artly due t o overprotectiveparents Held: Parents r eacting that way is ReasonablyForeseeab le & his con dition is at tributable t o their r eaction;thus i ts R easonably Foreseeable

Richardsv State of Victori a : Teacher f ailed to stop schoolyardght, boy knocked on head resulting in paralysis becau se o f apre-existing physical c ondition, D liable f or p aralysis.

Stephensonv Waite Tileman L td : P developed compensationneurosis as a result of injury because o f a p re-existingpsychiatric co ndition vulnerable personality.


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Rowev McCartney Pl was dri ver i n crash w here p assengerwas p aralysed; Pl suffered guilt neurosis. Court held Plcouldnt recover f or m ental illness as i t resulted from her ow nactions (Policy co nsiderations) Dissenting judgment reasonedthat Pl would have r ecovered damages i f she t ook action forNervous Sh ock rather t han guilt neurosis.

TentativeConclusion

As[Ps] damage [would/would not] be reasonably foreseeable itwould be [ likely/unlikely] that the d amage w ould be con sidered nottoo remote. If this i s correct , it is n ecessary to determine w hether[P] has an y defences avai lable.


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1.&.Defe%ces

Itis nece ssary to d etermine w hether a r eduction of damages w ould beallowed to re ect the p ercentage of blame ap portioned to [P]: LawReform Act 1951 Qld.

[Test1] Can [D] rely on a d efence:

1. Volentinon t injuria : voluntary assumption of risk.

Although

the cou rts t ake a n arrow view of the r isks as sumed by the p laintiff,as vo lenti is a com plete d efence [ D] should argue v olenti rst. To

be successful [D] must show:

1. [P]perceived the exi stence o f the d anger: Smithv Baker & Sons ;

2. [P]fully a ppreciated the ri sk/danger ( scope o f risk): Rootesv S helton , Ranieri v R anieri ;

3. [P]voluntarily accepted the ri sk (express or i nferred): Smithv Baker & Sons .


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Smithv Baker & Sons : [P] was b uilding a rai lway cutting,crane overhead dropped rocks on [P]. Held: [P] must consent to t heparticular t hing being done t hat would involve risk. No volenti.

Rootesv Skelton : water-skier injured while d oing d angerousmanoeuvre. Held: [P] voluntarily accepted risks o f the sp ort, butnot t he ri sk of the d river car elessly failing to keep proper w atch.

ICIv Shatwell : [P] explicitly and repeatedly told not to testexplosive in the w rong w ay, but did so; [D] won on volenti defence.

InsuranceCommissioner v Joyce : [P] got into car when h e kn ew [D]was d runk; held [P] to b e vo lenti.

Nettleshipv Weston : consent m ust be real, free a nd voluntary.

Ranieriv Ranieri : [D] teaching [P] to drive; held that hemust account for [ Pls] lack of skill.

Rescuers:it is f oreseeable tha t a person will come t o the rescu e, volenticannot be u sed against a res cuer: Haynes v G

Harwood & Sons

Volenti& drunk d rivers:

Roggenkampv Bennett : Facts: [P] & [D] binge d ranktogether t hru the n ight. [P] consent must be f ree, real &voluntary. All three el ements o f volenti satised.

OSheav NSW : If [P] doesnt fully appreciate t he ri sk ofnegligence on the p art of [D], then [P] cant be t aken to h avevoluntarily assumed the r isk. Court considered ( 1) [P] didntdrink with [D] thru the n ight, thus di dnt know of the ext entof [ Ds] drunkenness ( 2) [D] drove a con siderabledistance competently & without incident


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before the accident occurred; tvolenti . However on appeal Court said that [P], in con sumingalcohol, was C ontributory Negligent in allowing his ow n ability to

judge [Ds] ability to dr75% D.

2. ContributoryNegligence :

[P]did not take reason able st eps t o protect himself from injury: Daviesv Swan Motor Co.

[Ps]negligence d oesnt have to contribute t o the i ncident, but mustcontribute to the injury: Jones v LivoxQuarries ; e. g. incident caused by [Ds] negligentdriving, but [Ps] failure t o wear a seatbel t contributed 25%to his i njuries: Froom v Butler .

3. ExclusionClauses :

Involve

an exclusion of liability of [D] rather t han an acceptance o fliability by [P].

Ifthe rel ationship between [P] and [D] did not arise f rom contract,then an exclusion clause i s i rrelevant: Macleayv Moore .

Scanionv American Cigarette Co : [P] smoked same brand for 22


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years. [D] pleaded that [P] knew. Held not sufficient to sh ow that[P] ought to have kn own. [D] must prove actual knowledge.

4. JointIllegal A ctivity :

Themere fact that [P] engaged in some form of illegal conduct is n ot initself a d efence t o an action in negligence.

Jacksonv H arrison : [P] and [D] were d isqualied drivers.Obtained a car . [P] recovered as ab le t o x a st andard of carewithout referen ce to th e i llegal activity.

Smithv Je nkins : [P] and [D] assaulted and robbed a car owner.[P] injured in crash. Held that negligent driving was su fficiently

closely associated with earlier cr iminal conduct to deny [P] aremedy.

TentativeConclusion

[APPLY]

NOTE:


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If[D] is an employee, or co ntractor l ook also at v icarious l iabilityand non-delegable d uties.


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2. TrespassTo The Person

Trespassto the p erson is t he wrongful, direct and intentionalinterf erence w ith [Ps] physical i ntegrity: McHalev Watson.

1.'.Battery Tem(late

[D]will be l iable f or ba ttery if [P] can show direct , intentional,reckless or negligent touching of [his/her] person by [D]without consent or l awful justication: Innesv Wylie .

Batteryis acti onable p er se, as such [P] does not need to show damageand need only show the fact of trespass.

Theonus t hen shifts t o [D] to raise a defence. If there i s act ual harmto [P] then remedies include compensatory, aggravated or exemplarydamages. An injunction is al so o btainable i f the b attery is f eared as

being on going.


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[ELEMENTS]:Direct, Intentional, Reckless o r N egligent:

[D], by [facts of act] has made cont Innes

v Wylie. W hile t he con tact was a d irect result of[Ds] act, [D] does n ot have t o co me i nto actual contact with[P]: Scott v Shepherd

[Ds]act, which l ed to t he con tact, came ab out through[intention/recklessness/ negligence], and it is i rrelevant that[D] did not mean to hurt [P]. McNamarav Duncan. Hostility is n ot a requ irement, however,hostility can make a n otherwise p ermitted contact a battery.

Additionalelements t hat may b e r equired based on facts:

Batterydoesnt require p roof of injury su ch as sp itting at [P]:Cotesworths case :

Evencutting [Ps] hair w ithout consent is b attery: Fordev Skinner


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Everysurgical proced ure i s an assau lt, unless i t is au thorised (consentedto b y [P]), justied or excused by law:

Marions Case

Consentmay a lso b e implied by conduct: All physical contact is

battery unless it is conduct impliedly expected in e.g. jostling on buses, crowds et c. The con duct must be offensiveoutside t he a ccepted usages an d accidental contacts o f daily life:Collins v W ilcock

The[Ds] motive to com mit the act however benecent does not

affect its t resp assory ch aracter: Murray v McMurchy :

[D]cant rely on [P] consenting to contact i f contacts [ P],

causing injury, in a m anner outside t he rul es of game: McNamarav Duncan (AFL)

Evenif there i s con sent t o some con tact outside t he ru les of t he g ame;

consent doesnt extend to co ntact that [D] knew or ought to


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have kn own would have caus ed injury to [P]:Giumelli v Johnston (AFL)

Accidentalpoke in eye in NRL not battery: Hilton vWallace

Atouch to gain attention is accep table, a physical restraint is n ot:Rawlings v T ill

Onusof Proof

Freemanv Home (UK) : absence of consent is an element ortort, so [ P] must prove h e d id not c onsent t o the co ntact.Traditional view of Court

MarionsCase : McHugh J ; Consent is a d efence t o battery;[D] has t he BOP to p rove [ Ps] consent

ELEMENT:Defences : (Choose one op tion)


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1. [D][can/can not] show that [P] consented to the co ntact by[apply facts], and as su ch [D] [has a/ has n o] defence: McNamarav Duncan .

2. Inplaying contact sport, a cert ain amount of contact is con sented to,

but something intentional and outside t he ru les, w illconstitute battery: Giumelli v John ston .The q uestion then becomes w as [ apply facts] consented to? From thefacts of the case t his [was/was n ot] consented to andas s uch [D] [does/does] not have a d efence.

3. [Ds]contact [was/was no t] in self-defence Fontinv Katapodis , and [was/was not ] also proportionalto the t hreat from [P]. As s uch [D] [does/does] not have a defence.

4. [Ds]contact [was/was not] provoked and as such he [does/does] nothave a d efence: Fontin v Katapodis.However, provocation is n ot a vailable t o reduce com pensatorydamages, but is available to reduce exemplary d amages.

". [Ds]contact with [P] was r equired by medical necessi ty , and whileevery surgical procedure i s b attery unless i t is au thorised,necessity excuses t his: MarionsCase . However, defence d oes no t apply where t he p atient


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has g iven a cert icate o f refusal. As s uch [D] [does/does] not hav ea d efence.

ELEMENT :Remedies (Choose el ements r equired and join with facts)

OPTIONS :

1.Ifthere f ear of ongoing battery, [P] can seek an injunction.

2. Asthere were no actual damages, [P] can expect to rec eive n ominaldamages.

3. Forsuffering act ual damage, compensatory d amages ar e avai lable.

4. Aswell as agg ravated damages w here t here i s l oss of dignity orhumiliation Watts v L eitch .

". Insome cases exemplary are awarded for un conscionable conduct whichrequires punishment.

%. Itshould be n oted that provocation can r educe damages,Fontin v Katapodis , also the presen ce of hostilitymay affect the amount of damages awarded.

CASESDETAILS:


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Innesv Wylie: Police i n doorway n o p hysical contact: no

battery

Marionscase - Paren t consent to sterilisation of retardeddaughter. Court asked who h as r ight to co nsent to st erilisation?The C ourt answered it by nding the st erilisation wasnon-consensual as P l did not c onsent t o the co ntact herself.The on us is on D to p rove P l consented to con tact.

Test: Did the p hysical contact go beyond acceptable

standards of conduct?

McNamarav Duncan: (1979) foo tballer case

Some

examples of battery :

Punchinganother

Shininga l ight in someones eyes

Sprayingwater on another

Usinga w eapon/implement to strike an other e. g. stick, shooting a b ullet,

Anunwelcome kiss

Snatchinga book o ff another


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Doctorgiving treatment without consent

Usinga 3 rd partys bod y to t ouch an other


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1.).Assault Tem(late

[D]is l iable for a ssau lt if [his/her] i ntentional or n egligentact or t hreat d irectly places i n [P] a rea sonableapprehension of an imminent physical interference t o[his/her] person, or t he p erson of someone u nder [his/her] control,without lawful justication.

[P]need only prove d irect threat to his/her person caused by [Ds]act, the b urden then shifts t o the [D] to show that the act wasinvoluntary or t hey were n ot at fault (neither i ntentional, recklessor n egligent)

[Element1]: Direct threat : Select either v erbal,conduct or combine

Verbal :

[D], by [apply facts] issued a

the t hreat into actions m erely have to b e ap parent in [Ps]eyes: Stephens v M yers .

Conduct :

[D] behaved in a threatening manner by [apply


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to carry t he t hreat into a ctions merely h ave t o b e ap parent in the[Ps] ey es: Stephens v M yers .

SPECIALCASES : (Apply if necessar y)

Conditionalthreat :

Ifthe th reat is conditional , it is n ot assa ult if theaccompanying condition renders t he t hreat harmless: Tubervillev Savage .

Ifthe con dition requires a p olice offi cer to st op in performing alawful duty, then it is assau lt because [ P the p olice o fficer] islawfully entitled to d o w hat the co ndition prohibits: Policev Greaves .

FutureTime :

Ifthe th reat i s a suggestion of assault at a fu ture t ime , andthere i s no way for [P] to escap e b ecause [ he/she] is at the m ercy o f

[D] until the t hreat can be carr ied out, then the t hreat will amountto assault: Zanker v Vartzokas .

[Element2] : Intention

Thenecessary intention to establish an assau lt by [D] is an intention


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to cause ap prehension in [P] that physical contact is ab out tooccur. [Ps] reckless o r n egligent conduct may satisfy this.

[Element3] : Ability an d Apprehension of battery :

[Ds][apply facts] fulls t he r equirement of an actual or apparentpresen t ability to carry out the t hreat: Bradyv Schatzel .

Words Alone Clause : (use i f required)

Evenas [ Ds] threat is p urely verbal, it [does/ does n ot]constitute assau lt as t he w ords [did/did not] cause f ear ofimmediate v iolence i n [P]: Barton v

Armstrong . (threat from telephone)

[P]must be aw are of the assau lt by [D] as t his i s t he ve ry g ist of theaction. [P] need not be af raid, but merely fear i n knowledge a nd

expectation that the act ion threatened will take p lace. As such weapply a su bjective t est as t o what [ P] feels. As [ P] isapprehensive, evidenced by [apply facts], this i s su fficient, a l ackof intent by [D] to carry out the t hreat i s i rrel evant: Hallv Fonceca .

[ELEMENT

4] : Defences : (Choose one op tion)


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1 [D][can/can not] show that [P] consented to the a ssault by[apply facts], and as su ch [D] [has a/ has n o] defence: McNamarav Duncan .

2. [Ds]conduct [was/was not] in self-defence McClellandv Symonss , and [was/was no t] also p roportional tothe t hreat from [P]: Fontin v Katapodis .As such [D] [does/does] not have a d efence.

3. [Ds]conduct [was/was not] in self-defence o f o thers Howardv Wing , and [was/was no t] also p roportional to t hethreat from [P]. As s uch [D] [does/does] not have a d efence.

4. Note:Mistake is not a d efence.

". Otherdefences op en to [D] are em ergency an d inevitable acc ident and needto be ap plied as r equired.


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[ELEMENT5] : The Remedies (Choose elements r equired and

join with facts)

OPTIONS :

1 Ifthere f ear of ongoing assau lt, [P] can seek an injunction.

2 Asthere were no actual damages, [P] can expect to rec eive n ominaldamages.

3 Forsuffering act ual damage, compensatory d amages ar e avai lable.

4 Aswell as agg ravated or exem plary damages f or any outrage to [Ps]feelings.

" Itshould be n oted that provocation can r educe damages,Fontin v Katapodis .


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1.*.False m(riso%me%t Tem(late

[D]will be l iable for false i mprisonment if [P] can show wrongfultotal restrai nt of their freedom of movement without [Ds]legal justication .

Falseimprisonment i s acti onable p er se and as such [P] doesnot need t o show damage on ly trespass: Williamsv Milotin .

Theonus t hen shifts t o [D] to prove it was n either i ntentional nornegligent. [P] can seek an injunction or damages i f [D] is l iable.

ELEMENT1: Restr aint:

Test1: Actual rest raint:(Choose ei ther physical or psychological)

Physical:

Inthis i nstance, [P] is [ apply facts] . [Ps] actual restrai nt ismore t han mere o bstruction of m ovement in a p articular d irection, as[P] is conned within boundaries s et by D: Bird

v Jones .


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[Ps]knowledge o f this r estraint is n ot nece ssary:

Meering v Graham-White Aviation. As personal freedomis s o important it should be actionable per se even withoutknowledge : Murray v Minister of Defence

Psychological:

Inthis i nstance, [P] is [ apply facts]. [P] feels t here i s n o

alternative b ut to submit to [Ds] restraint.

Coercion(Symes v Mahon ) along w ithfear o f public h umiliation ( Myer Stores vSoo ), is s ufficient for psychological restraint .

Test2: Reasonable m eans ofescap e: (Use w hole clause)

[P]has n o reasonable m eans of escape w ithout risk o f risk o f injury(Burton v D avies ) or s eriousinconvenience ( R v Macquarie ),as [ he/she] was [ use f acts].

ELEMENT2: Defences:


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Test1: Did P give con sent: (Choose on e op tion)

1. Theargument that [P] gave consent through the cou rse oftheir employment, is conditional on what was agreed to fall withinthe course of employment: Herd v Weardale .[Ps] [apply facts] [ does/ does n ot] fall withinwhat was agreed, and as such she [ has/has not] consented an d [D][is/ is n ot] l iable.

2. Theargument that by entering into a contract [P] consented to [D]imposing reasonable co nditions o f restraint, regardless of [ P]knowing, is u nlikely to carry w eight today because t he san ctity ofcontract doesnt prevail over p rinciples o f liberty &freedom: Balmain New Ferry vRobertson :

1. Ifyou revoke con sent, you need to do it in a re asonable w ay. Ie yo u

cant do it mid way of an airline ight.

3. Theargument by [D] that there was legal justication issupported by statutory a uthorisation that says [ apply facts], and as

such [D] is n ot l iable f or f alse i mprisonment. (Persons w ho are


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authorized to detain individuals i nclude h ospital staff, parents,schoolteachers etc)

4. [Ds]claim that there w as act ually reasonable m eans of escape[is/is] not s upported by the [ apply facts] and as su ch, [D] [is/isnot] liable f or f alse i mprisonment.

". [Ds]claim that it was unintentional or without negligence doesnot c over m istake as t o the ri ght to imprison P, Cowellv Corrective S ervices C ommission an d as s uch i s no t adefence.

ELEMENT3: Remedies (Chose el ements r equired and jointogether w ith facts)

OPTIONS :

1. Asthe t ort is o ngoing, [P] can seek an injunction.

2. Wherethere is no damage, nominal damages.

3. For

suffering the loss of freedom, compensatory d amages are avai lable.


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4. Aswell as agg ravated damages w here t here i s l oss of dignity orhumiliation Watts v L eitch .

". Insome cases exemplary are awarded for un conscionable conduct whichrequires punishment.

%. Itshould be n oted that an ap ology reduces damages: Walterv Alltools

CaseDETAILS:

Birdv Jones : (failed because barr ier on bridge w as a m ereobstruction, not total rest )

Burtonv Davies: dangerous to jump from a moving car, notreasonable escape.

Herdv Weardale : Coal miners: if [P] consented to it throughthe cou rse of his em ployment, he can not claim FI; the q uestionarises, what did the p arties agree w as w ithin the cou rse ofemployment.

Meeringv Graham-White Aviation : [P] asked to wait in room for aninterview, but real purpose w as no t said. A guard was ou tside t heclosed door and intended to st op him if he at tempted to leave; heldto be F .I

MyerStores v S oo : Soo mistaken for a sh oplifter an dsurrounded by security guards who requested that Soo

accompany them to the office for an i nterview; when Soo attempted to


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protest , guards i nsisted; held that it was t otal restraint becauseSoo couldnt refuse f or f ear of public em barrassment.

Rv Macquarie : h aving to sw im to escape i sseriously inconvenient.

Symesv Mahon : although not physically restrained, thewill of [P] was su bverted by [Ds] psychological pressure;[Ps] submission to go to Adelaide w as n ot free an d voluntary.


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3. Trespassto Land template

[IFINDIRECT GO TO NUISANCE]

.Trespass t o Land;

[P]may have a cause of action against [D] for t respass t o l and if [Ds]intentional, reckless o r n egligent act d irectlyinterferes w ith [Ps] exclusive p ossess ion of landwithout consent or l awful justication.

Astrespass acti onable p er se [P] does not need to prove damage,

just direct interference

Theremedies open to [P] are d amages an d or an injunction.

ELEMENT1: Voluntary

[Ds]act of [apply facts] was an[intentional/voluntary/negligent] act: PublicTransport NSW v Perry .


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Voluntary i t is no trespass i f you were pu shed onto the l and: Smithv Stone

Involuntary A person w ho h ad an epileptic t and fell off a railwayplatform onto the t rain lines w as h eld not to h ave t respassed on thelines: Public Transpor t C ommissionof NSW v Perry

ELEMENT

2: Direct Interferen ce: (If not direct go to nuisance)

[Test1] : Direct Interferen ce: (Add items below if neededfor d irect)

Not

limited to entry b y a p erson can be projecting things overor i n land: Davis v Bennison

Includesfailure o r refusal to leave t he l and.

Continuesuntil rectied.

Dheld liable for p ushing dirt on the P s l and with a b ulldozer:Watson v C owen

Dheld liable i n tresp ass f or r eleasing catt le o nto the P sland: Yakamia Dairy Pty Ltd v W ood

[D]may commit trespass by directly causing some o bject (parked car) to

make con tact with the land unpermitted by [P]: Mayfairv P ears


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Anadvertising sign: Kelsen v Im perial TobaccoCo Ltd :

Piping:Lawlor v J ohnston :

Tree branches: Gazzard v Hutchesson :

[Test2] : Actual i nterference :

Aslong as it might interfere w ith what you might want to d o, does no tmatter w hether i t actually does i nterfere w ith use/enjoyment: LJPInvestments v Howard Chia

Mereapprehension of interference i s s ufficient: Grahamv KD Morris

ELEMENT3 Act done in respect of use a nd enjoyment of l and :

[Test2] : How far does land extend:


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i. LegalMaxim: rights i n the soi l extend to heaven and to hell

ii. Rightsin land only extend to w hat is r easonably necessary for the

enjoyment of the l and. Therefore, a si ngle ight over l and tresp ass: Baron Bernstein v Skyviews .

iii. Whathappens if there ar e frequent ights over l and: Damageby Aircraft Act 1952 (NSW) : no action lies i n tresp assor n uisance, having regard to wind, weather and all thecircumstances of the case, provided they dont breach therules o f the av iation authority.

i:. Mining Acts : Latin maxim does n ot apply, because t here i s no

private o wnership over t he m inerals i n the l and. Rights i nminerals ar e sep arate to the f ee si mple in the land. But


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note t hat unless con sented to, or au thorized by legislation,extracting minerals, pouring water or ot her u ids un der the P sproperty co nstitutes t respass.

1. BulliCoal Mining Co v O sborne : Tunnelling under P sland for t he ext raction of c oal from under

ELEMENT4: Without Consent: The bu rden of proof is on[D] to show consent:

ImpliedLicence

i. Animplied licence exi sts t o enter l and for the p urpose of lawfulcommunication or ar resting t he occu pier: Hallidayv N evill

ii. Thislicence ex ists u ntil it is r evoked by the o wner of t he l and e.g. by fences, gates, locks, signs: Hallidayv N evill


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iii. Personmust be bona de seeking: Bryne vCinema; Lincoln H unt

i:. Doesnot extend to robbers and nosey T V reporters:Lincoln Hunt ; Rinsale v ABC

LimitedLicense

i. Rightto enter l imited in scope. Entry u nrelated to the ri ght istrespass o f premises: Bakers Case


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ii. Wherelicence i s con ditional, and breach the co nditions, it becomestresp ass: Konskier v Goodman

Revocationof implied li cence

i. Wherethe l icense i s r evoked, and there i s su bsequent entry, it istresp ass: Plenty v Dillon

ii. Licensecan be w ithdrawn, and once i t is, allow a reas onable t ime toleave, and then use reaso nable f orce t o eject: Cowellv R osehill Racecouse


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ELEMENT5: Who Can Sue? Trespassprotects [Ps] actual exclusive p ossess ion or occupationof land, not ownership.

4. Donot have t o be actual owner of l and as l ong as you exerciseproprietary rights ov er t he l and, as l ong as act l ike h avepossession ex clusive p ossession , excluded others: Newingtonv Windeyer

". Defacto

possession is enough.

%. Noneed to prove l egal or eq uitable t itle t o the l and. Anyone w ho infact has excl usive p ossession of property is t reated as h aving rightto p ossession of that property, even if they h ave w rongfully takenpossess ion of it.

'. Interestshort of proprietary

1. Prota p rende a ri ght to take - sufficient: Masonv C larke :

(. Rightto e xclusive p ossessi on : ConcreteConstructions v B LF

). Ifthere i s a d ispute b etween someone i n possession as a m atter of factand someone w ho has a l egal right to exclusive p ossession, thelatter w ins: Delaney v TP Smith Ltd

ELEMENT6: Defences


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.Defences;

1. Lawfularrest

2. Abatementof nuisance by self-help: can trespass on land to stop a n uisance i nthe cas e of an emergency: Jones v Williams

3. Statutoryauthority to enter eg Hen Quotas Act (Qld).

1. However,the st atutory au thority to trespass m ust be t hrough clear an dunambiguous l anguage general language i s insufficient: Cocov R

4. Warrantto enter the h ouse.

ELEMENT7: Remedies

.Remedies;

Damages :

1. Nominal:dont need to prove d amage. Entitled to nominal damages.Actionable p er s e.

2. Compensatory- Where the d amage i s t he n atural consequence of the t respass,compensatory d amages ar e avai lable: Hogan v

Wright


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3. Exemplary

Injunctions :for continuing a nd repeating offences, or if it was r easonable to

believe that the offence would be repeat Konskierv Goodman

Self-Help: If entitled to immediate p ossession, then you are ab le t o usereason able f orce t o eject the t respasser. The sam e a pplies t o atrespassing object or m aterial p rovided you dont usemore t han reasonable force.

Cases

Davis

v Bennison : cat on neighbours garage, took shot nei ghbourin between sued for t respass

Delaneyv TP Smith Ltd : Ptook possession of ho use u nder a l ease t hat was l egally ineffectiveand which did not give him any right to exclusive p ossession. Dforcibly evicted P. Held that D s l egal right to exclusivepossession overrode t he fact of the P s p ossession.

Grahamv KD Morris : injunction granted against a cr ane

jib

Hallidayv Nevil: 2 police officers walked up driveway andarrested disqualied driver held: arrest was l awful b/c of impliedlicense t o en ter for l awful communication. Open and unobstructed, nogate or l ock, no notice p rohibiting entry.

LJPInvestments v H oward Chia I nvestments : D carrying


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out commercial development and requested scaffolding to go up onneighbours l and injunction granted restraining them

Lincoln Hunt : invaded the p lace w ith dissatised

customers with rolling camera h eld: trespass

Newingtonv Windeye: the grove def took down fenceand put up low brick w all with gate g iving access t o the g rove. [P]were no t the regi stered owners of the g rove, but could stillmaintain action in t respass b/c had engaged in many acts ofownership over a period of 50 yrs. Employed man to mow lawn &maintained tress gar den & rockeries. On many occasions t hey t old

uninvited visitors that they were t respassing. Held: entitled to su e b/c trespass protects possession.

Plentyv Dillon: father exp ressly revoked consent of the p olice,summons could have been sent by post held: trespass, might bedifferent if they w ere com ing t o arr est

PublicTransport Commission of NSW v Perry: A

person who had an epileptic t and fell off a r ailway p latform ontothe t rain lines w as h eld not to have trespassed on the l ines.

Smithv Stone t he D did not committrespass as he was thrown by 3 rd parties on to the l and.


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4. VicariousLiability & nON dELEGABLE DUTY

GeneralPoints Fo r V icarious l iability :

Vicariousliability is w here o ne p erson is h eld liable f or a t ortcommitted by an other person.

Itis n ot an independent course of action.

Theperson does n ot have t he act ions at tributed to them; ratherthey take resp onsibility for t he a ctions.

Parentsare n ot held liable f or t he t orts o f their ch ildren unless t heyemploy them.

Vicariousliability is a lways str ict l iability, but n ot ab soluteliability, and must be d istinguished from person al liability.

Theinjured party must show a m eaningful connection between theemployment and the tort.

Whyhave v icarious l iability ?

Thedesirability of providing a d eep pocketed and solvent D.


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Thecapacity of the em ployer t o absorb t he co st of liability as p art ofthe en terprise i nsurance.

Theemployer gets the ben et of the em ployee t o ad vance their owninterest s so it is j ust that t hey should bear t he l osses i ncurred bythose i n the en terprise.

Itacts as a d eterrent to encourage t he em ployer t o prevent accidents.

GeneralPoints For Vicarious Liability

Nondelegable d uty is u sed to justify the i mposition of liability on one

person for t he negligence of another to w hom the former hasentrusted (or delegated) the p erformance of some t ask o n their

behalf.

Underthe law of negligence, duty can not be d elegated though p erformanceof the d uty can be: Elliot v Bickerst aff .

Comparisonbetween t he two:


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VICARIOUSLIABILITY

NON-DELEGABLEDUTY

Secondary/ derivativeclaim: not an independent cause ofaction.

Primaryclaim an independent cause ofaction

Applies

to all torts

Applies

to just the t ort of negligence

Strictliability

Mustprove fault Lepore, Rich v S amin


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Nothingthat an employer can do to prevent

being subject to vicariousliability.

Nota d uty to take r easonable care,

but a duty to see thatcare i s t aken.


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1.1+.,icarious -iability Tem(late

RelationshipDealt With : Employer/Employee

For[employer] to b e v icariously liable t here m ust be t he com missionof a tort , an em ployer/employee r elationship between[company] and [employee] and the t ort must have been committed by[employee] in the cou rse o f [his/her] employment.

Asvicarious l iability is st rict liability [P] will then be a ble torecover damages from [employer].

ELEMENT1: Commission of a tort

[D]committed the tort of [APPLY] by [APPLY].

ELEMENT1: An employer/employee relationship

Contractsof service = employment relationship with an employee:liability created.


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Contractsfor s ervice = non-employment r elationship with an independentcontractor: Therefore no t liable. (Look to n on-delegable d uties).

TEST1: Is t here a rel ationship:

TheMulti Factor Test : Stevens vBrodribb ; Hollis v Vabu(See C ases Below For D etails)

Fromthe terms of [e/ees] contract where [company] could [applyfacts t o do with control] it is ap parent that [company] [had/did nothave] the right to control as o pposed to the exe rcisingof control. This i s a s trong indicator of [an/no] em ploymentrelationship and [employer] [may/may n ot] be v icariously liable.Other f actors t o take i nto consideration are[apply other ge neral factors]:

Other factors to use when looking :

The

right to have a p articular p erson do the w ork

Theright to suspend or d ismiss

Theright to exclusive services of the p erson engaged in work

The

right to dictate w ork place, hours.


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Other general factors to cons :

Thenature of the t ask undertaken sk illed or u nskilled

Thefreedom of action given to the w orker to perform the t ask can t he worker delegate

Theprovision of equipment by the em ployer

Theamount of remuneration and how it is to be p aid

Doesthe employer deduct income tax an d superannuation

Thehours of work a nd provision of holiday an d sick l eave

Themethod of termination

TentativeConclusion :

[Employer][does/does] not have an employee/employer r elationship with[employee].


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ELEMENT3: Was t he em ployee act ingin his course of employment?

TESTS :(apply a s necessary) :

1. [D]may b e l iable for act s d one i n the sc ope o f employment even if thereis an express p rohibition ag ainst it. What i sessential is w hether t hat prohibition limits t he sco pe o r m erelyregulates t he m ode. If it is t he l ater t here m ay be l iability. Rosev Plenty.

2. If[e/ee] engages in acts outside scope of employment, then [company]is n ot vi cariously liable a nd [employee] can be said to be o n a

frolic of his own , the d egree o f deviation isimportant: Beard v London Omnibus.

3. Ifthe em ployee i s act ing in the best i nterest s of theemployer & if his act ions ar e reason ably incidental toemployment then the em ployer i s Vicariously Liable:Kay v I TW

4. Amaster can be v icariously liable f or t he horseplaywhich i s found to be w ithin the cou rse of employment: Haywardv Georges

". Wilfultorts su ch as cr iminal conduct are n ot necess arily outsidethe sc ope o f conduct: Morris v Martin

(SEECASES BELOW TO CHECK FOR SIMILAR FACTS)


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TentativeConclusion :

[Employee][was/was not ] acting within the s cope of their employment when thetort took place, and as su ch [employer] [will/will not] bevicariously liable.

CASEDETAILS:

Employment

Albrightonv RPA : If the em ployee f orms part of the em ployers

business organisation then they are Vicariously Liable. irrelevant in the case of hospitals t hat j ust because t hey have nocontrol over ho w the Dr operates. Determine if [P] saw Dr orhospital.

Hollisv Vabu : D a parcel and document carrier who employsvehicle an d bike cou riers. P pedestrian who was s eriously injured b ya b ike cou rier w ho was i llegally riding on the footpath. Held:relationship was employer / em ployee an d endorsed enterpriserisk. HC applied Brodribb factors: little co ntrol how taskscarri ed out; unskilled with no special qualications; trainingdiscipline an d attire directed by employer, employer supplied someequipment, no negotiation over pay rat es; courier supplied own bike.(Crt said may b e d ifferent for couriers w ho su pply own vehicle)

Stevenson, Jordan, v Macdonald : Contract of service:

Man is employed as part of business & his w ork is an i ntegralpart of business con tract for s ervices: His w ork, althoughdone f or t he b usiness, isnt integrated into it but only

accessory to it.


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Stevensv Brodribb Sawmilling : D was sawmilling companywho e mployed tree f eelers t o cu t the t rees an d sniggers t o drag thetrees on to the tr ucks an d drivers to drive the tr ucks. D coordinatedthe three groups bu t left them alone to operate t heir systems. P wasa d river w ho was i njured by the n egligence of a sni gger w hileloading the t ruck. Held: snigger n ot em ployee o f D, not vi cariouslyliable, as g roups w ere t otally outside D s con trol.

Unauthorisedperformance of authorised d uties

CenturyInsurancev NIRT If employees act ions ( smokingwhilst waiting for f uel tank to ll) are reaso nably incidental tothe sc ope o f their e mployment then employer i s VicariouslyLiable, even t hough he wasnt employed to smokecigarett es.

Bugge

v Brown Even if employee p erforms an au thorised act in anunauthorised or even prohibited manner t hen the em ployer i s s tillVicariously Liable.

CMLv P&C Insurance If an Employee g oes aga inst thewished of his employer & acts w ith animosity towards acommercial opponent (knocked them) business then t he employer isVicariously Liable as t he em ployee ( salesman) is considered to beacting in the e mployers i nterest s; trying to sell the

employers product

Notliable i f employee o n frolic of their own

Chaplinv Dunstan If a d river d etours t o get a d rink & on


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this w ay crashes t hen the em ployer i s V icariously Liable a s i t is areason able d etour; he i s en titled to have a d rink

Crookv D erbyshire St one Driver stopped for lunch, involved inght. Held: that it was d river ow n business; once ou t of thetruck the em ployer no t vicariously liable.

Storeyv Ashton A driver b acktracking off his r oute t o visitsome p eople i s con sidered a f rolic of hi s ow n; there w as sub stantialdiversion off route.

Hilton

v Thomas Burton If employees knocked off work ear ly &had drinks, then they are c onsidered to be o n a f rolic of their own;employer not Vicariously Liable.

Harveyv ODell : Workers w ho took an unauthorised lunch

break were held to be acting in the course of employment.

Horseplay:

Haywardv Georges : slapping a w aitress i n the b ack causing her t ofall was i s the cou rse of employment.

Cthv Connell : pushing a n aval apprentice off the b ridge i nthe course of skylarking was within the cou rse of employment.

WilfulTorts:

Polandv John Parrs : Servant struck suspected thief, in thecourse of employment.


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Pettersonv Royal Oak Hotel : Barman threw glass keepi ngorder in the b ar, in the cou rse of employment.

Deatonsv Flew : Barmaid threw glass p rivate act ofretaliatory sel f defence, not in the cou rse o f employment.

CanterburyBankstown Rugby League v Rogers : head high tackle, in thecourse of employment.

Morris

v Martin & Sons : Mink coat stolen by servant aftersent for c leaning. Held D liable for as the t heft was a w rongfulmode o f performance of the em ployees d uty of cleaning it. Dwas l iable on the b asis of non delegable d uty.

Pointto Note : Tests u sed prior t o multifactor w ere:

TEST1: Control Test - Original Test

If

[D] controls bot h what is do ne by [E/ee] & howit is d one, then the r elationship is on e o f employment and thecontract is on e o f service. Applying the f acts of the case w e can seethat [apply facts]. This t est works w ell with unskilled employee,however n ot for skilled employees: Zuijs vWirth Bros

TEST

2: Integration & Organisation Test


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If[e/ee] i s su fficiently integrated into the o rganisation of[company] to b e con sidered its s ervant then there i s a r elationship.The f act t hat [ e/ee] i s [ apply facts] points t owards t he co nclusionthat [ e/ee] [ is/is n ot] [integral/ancillary] to the [com panies]organisation: Stevenson, Jordan &

Harrison v MacDonald & Evans; Albrighton v RPA (Doctor/Hospitalcase)


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1.11."!" D/-/0AB-/ DUT

If[Employee] not classed as em ployee is t here a non-delegable d uty?

Fora n on-delegable d uty to arise t here m ust exist a p rotectiverelationship of responsibility or c ontrol on the p art

of [D] and vulnerability or r eliance o n the p art of[P].

Examplesof p rotecti ve relationships :

Employerto em ployees: Kondisv STA

Hospitalto patients: Samiosv Repatriation Commission /Ellis v WallsendDistrict Hospitals

Schoolsto students: Cthv Intr ovigne

Occupierin control of premises onto w hich d angerous substances have beenintroduced to a l awful visitor: BurniePort Authority v General Jones Pty Ltd


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Employerto Employees

Albrightonv RP A Regardless of the m inimal control hospitalshave over D rs, they are V icariously Liable ( absoluteliability) as t hey have a d uty to the D rs t ake ReasonableCare.

KondisSuch d uties arise because the p erson o n whom it isimposed has un dertaken the car e, supervision or c ontrol of theperson or property of another or i s s o placed in relation to tha tperson or p roperty as t o a ssume a p articular r esponsibility for hi sor i ts s afety, in circumstances w here t he p erson affected mightreasonably expect that due care w ill be exercised. A non-delegableduty sh ould be i mposed on employers. It is r easonable t hey sho uld

bear liability for the negligence of his devising a safe system of work.

Schoolsto Students

Cthv In trovigne S ub con tractor : n egligence brok eagpole & hit kid. Cth as prov ider of education had a sep arateresponsibility fr om merely b eing v icariously l iable for the t eachersor ot hers it appointed to carr y o ut and provide ed ucation.

NSWv Lapore : HC held that non-delegable d uties do n otimpose strict l iability. The P is st ill required to prove fault.


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Hospitalsto P atients

Cassidyv Minister f or H ealth Denning J : Hospitals areVicari ously Liable for n egligence of their st aff. Regard less whetherit i nvolves a contracts of service or co ntract f or serv ices.

Roev M in for Health Denning J T he re ason i s

becau se, even if they are n ot s ervan ts, they are t he ag ents of thehospital to g ive the t reat ment. The on ly exception is t he case ofconsultants or an aesthetists se lected & employed b y the p atienthimself.

Ellisv Wallsend D istrict Hospital : Here the h ospitalwas no t liable as t he surgeon had been privately co nsulted by thepatient and the h ospital had only lent its f acilities an d supportstaff to t he su rgeon.

LandOccupiers

Safewayv Zaluzna : Land occupiers owe a d uty to everyoneto take Reasonable C are t o prevent foreseeable i njury t o customerswho come on to the l and. What is r easonable w ill vary w ith theirpurpose for coming onto the land.

Phillisv Daley The DOC is w hat is foreseeable; Duty to

tresp assers etc is >


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Calinv Greater U nion Perhaps a speci al duty is ow ed tocontractual entrants t o m aintain the p remises t o a st andard that isas saf e a s r easonably possible.

BurniePort Auth v General Jones Property owners owe anon-delegable d uty to ensure t hat persons i nvited onto theirproperty are prot ected. Depending on the magnitude of danger, thestandard of Reasonable Care m ay i nvolve a d egree of diligence s ostringent as t o a mount practical to a g uarantee o f safety (W eldingcontractor started re an d destroyed part of cold storage)

Rylands

v Fletcher A person who for his own purposes brings onhis l and & keeps t here any thing likely to do m ischief if itescapes, must keep it at his p eril, & if he d oes n ot d o so i sprima facie an swerable for al l the d amage which is t he n aturalconsequences of its es cape. He can excu se himself by showing t hatthe esc ape w as ow ing to Pls d efault or p erhaps t hatthe escape w as t he consequence of vismajor or the act of God. Had to be n on-natural use of theland. This case has si nce been absorbed by the gen eral law ofnegligence.

Justicationsand Policy C onsiderations : INCLUDEWITH YOUR ANSWER

Inthe t hree p rotective r elationships where a n on-delegable d uty isclearly established there are sou nd policy reason s f or t he i mpositionof the d uty.


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[D]is a nancially responsible p erson fully aware o f itsresponsibilities t owards t he cl ass of persons t o which [P] belongs.

[D]is al read y vicariously liable f or t he f ault of its ow n staff.

[D]will usually have insurance against the vicarious l iability.

TentativeConclusion:

[APPLYAS REQUIRED]


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#. Nuisance:

Comparisons :

Nuisance& Negligence :

Negligence l iability is b ased on the unreasonableness of theconduct causi ng t he d amage; Fault depends on t he bre ach o f aduty. Breach judged on reasonableness of conduct by balancing risksof con duct. Calculus of neglect requ ires p roof ofdamage w hich is caused by D and is reasonably foreseeable.

Nuisance l iability is b ased on the unreasonableness of theinterfer ence itself; Fault depends on whether D created thenuisance. Therefore con duct giving rise t o nuisance m ay be p erfectlyreaso nable, but the resu ltant interference m ay be t otallyunreasonable. Calculus of nu isance requ ires p roof of

damage w hich is caused by D and is reasonably foreseeable.

Claimsin both negligence & nuisance r equire p roof the d amage w asReasonably Foreseeable.


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Nuisancev Tresspass :

Nuisancesare indirect interferences, which can be i ntentionalor u nintentional, with use & enjoyment of land.

Trespassmust be a direct interference w ith land.

Nuisancerequires p roof of the u nreason able interference w ith

use & enjoyment.

Trespassis actionable per se , regard less of w hether i timpacts on the use & enjoyment of land

Nuisanceprotects ag ainst physical injury a nd interference w ith use an denjoyment of land


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Nuisanceis i ntangible i nvasions ( noise, smell, vibrations)

Trespassis p hysical intrusions by tangible o bjects (people, cattle, rubbishetc)


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1.12. $ ,AT/ "U SA"C/ $ ,AT/ -A"DT/5 -AT/

[P]may h ave a cau se of action against [D] due t o t hesubstantial and unreasonable interference to[Ps] enjoyment and use of [ his/her] land as a resul t of[APPLY].

ELEMENT1: Locus s tandii / rightto sue :

As

[P] [owns/rents/etc.] the l and [he/she] has a proprietary (title,lease) or l egal interest in the l and and can sue: Oldhamv Lawson (wife owned land,husband couldnt sue n eighbour).

Iflicensee (not a proprietary right)

Howeverwhilst historically a l icensee h as n ot had title t o sue, in the UKin Khoransandjian v Bush a merelicensee w as ab le t o sue, but in Aust Hunterv Canary Wharf overturned this. Then a m ere l icensee w asgiven locus st andii in: Deasy Investments v

Montest Q CA relied on Khorasandjian


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On balance may have title to sue despite being a mere licensee

( Animal Liberation Inc v Gasser )

ELEMENT2: Who can be sued :

[D]is cap able o f being sued as [ he/she] i s t he [ apply below].

1. Doesnthave t o be i n possession of l and : Fennelv Robson E xcavation P /L expired license.

2. Creatorof t he n uisance : Fennell v Robson con tractor du g foundations and causedsubsidence.

3. Authoriserof t he n uisance : De Jager Hall owner who hired it out, neighbours complained.

4. Adopterof t he n uisance : Sedleigh-deneld Drain in land that blocked and ooded neighbour. The

landowner i s l iable for nuisance on ly i f he continued oradopted the nu isance, which w as created by another on hisland.

". Personwho knows or ought to be aware of nuisance : However Dcant be li able i f he ( 1) Didnt know of thenuisance exi stence ( 2) Didnt ought to k now of itsexistence ( 3) D idnt have an y reasonable o pportunity torepair or r emedy the n uisance. Torette

House v Berkman


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%. Someelement of fault needed on the d efendants beh alf: Torette

House P/L v Berkman d id not know or ought to haveknown/acted, could not reasonably have f ound out, no liability.

ELEMENT3: A recognised right:

[Ps]recognised right of [apply facts], which t he law deems capable of

being protected, is being in

1. theland itself i n its n atural state

2. propertyor chattels associ ated with the l and

3. theright to enjoy the l and eg. pleasure, comfort, quietude, fresh air,aesth etics

4. theright to free a ccess t o land: Dollar Sweets

P/L v Federated C onfectioners forcibly prevent, Animal Lib v Gasser put

entrants i n fear o f safety.

Freedom from non-physical damage such as noi


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1. Eventsthat are n ot on [Ps] property, but which can be seen from[Ps] property Thompson-Schwabv Costaki . (brothel opened up in suburban area, peoplesaid aesthetics w ere b eing destroyed held: nuisance)

Privacyis n ot a l egally recognised interest : Victori aPark Racing v Taylor but aggressive v iewing may g ive ri seto an action to protect privacy: Plenty vDillon (obiter). Eg. Neighbour spying m irror system.

ELEMENT4: The i nterference i ssubstantial and unreasonable i n all the ci rcumstances:

Theinterference w ith this ri ght by [D] [is/is n ot] substantial andunreasonable as [item A or B].

A.Damage :

Propertydamage i s p rima f acie ev idence o f the i nterference b eing substantialand unreasonable: St Helens Sm eltingv Tipping .

i. Propertydamage m ost conclusive ev idence i f other i nterference t ypes as w ell:

Halsey v Esso Petroleum .


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ii. Plaintiffdoesnt have to prove tha t the d efendants u se of theirland is un reasonable, defendant have t o p rove r easonable: Corbettv Pallas .

iii. Ifproperty damage, doesnt matter i f nuisance i s t emporary ornecessary precautions t aken: Harris vCarnegies P ty Ltd .

B.Calculus of n eglect:

1. Court balances the right to enjoyment versus the defendants des

to undertake t he act ivity t he ru le o f give an d take: Bamfordv Tu rnley . Judged not merely a ccording to el egantor d ainty modes of living but according to plain and simple n otionsamong English people: Walter vSelfe . Factors con sidered include:

i. Natureof the locale w hat may be reasonable in one p lace m ay beunreasonable i n another. Interference t hat would be reas onable i n anindustrial area m ay be u nreason able i n a resi dential area: Munrov Southern Dairies Ltd : does not matter whetheractivities b enet the p ublic. Nature of l ocale j udged at time o finterference, so a pproaching nuisance n o defence: Sturgesv Bridgman .

ii. Timingand Duration Calculus of


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nuisance = severity of the n uisance v the t ime/duration/extent inwhich it occurs: Halsey v Esso Petroleum

Duration w ork that i s of a t emporary n ature i s gen erally not held to

be a nuisance: Andreae v Selfridge Co.However, even if it is t emporary, if it at an unreason able t ime,then it will be h eld a n uisance: Harrison vSouthwark & Vauxall Water Co.

Time act ivity within a CBD constitutes a nu isance d uring businesshours: Wherry v K B Hutcherson .Activity in a resi dential area constitutes n uisance a fter b usinesshours: Seidler v Luna P ark Reserve Tru st .But measure against a r easonable t rade, not an unduly sen sitivetrade/business : Robinsonv Kilvert .

iii. Sensitivityof P laintiff EggshellSkull rule d oes n ot ap ply, interference o nly unreason able i fit would affect a reasonable m an: Walter vSelfe . Cant be a nuisance i f wouldnt affectan ordinary business: Robinson v Kilvert .But if it would affect an ordinary p erson, then the speci al damagecaused by sensitivity is r ecoverable : McKinnonIndustries Ltd v Walker .


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i:. Malice An interference t hat would otherwise be reasonable isrendered unreason able i f it is m alicious: Christiev Davey . Malice on the p art of the d efendant willoutweigh the p articular sen sitivity of the p laintiff: HollywoodSilver fox Far m v Emmett

ELEMENT4: Defences: (selectone)

1. [P]approaching the n uisance by [apply facts] is n ot a d efence: Sturgesv Bridgman . It is n ot a d efence t o argue [ P] approachedthe n uisance - all you can say is t hat the n ature of t he l ocalitymeans t hat the i nterference i s n ot un reasonable.

2. The benet to society, claimed to be [apply facts]

nuisance i s n o defence: Munro v SouthernDairies .

3. Theclaim of reasonable care by [D] will not exonerate [him/her] from


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liability, because t he m easure i s r easonable i nterference, notreaso nable care: Harris v Carnegies .

4. Contributorynegligence u nusual sensitivity can be r eversed and reducedamages. (see abov e)

". StatutoryAuthorisation i f there i s s tatutory d uty to conduct activityin that area, then [D] must show interference i s an unavoidableconsequence: Allen v Gulf Oil Renery .But if duty could have been performed in another way t o avo idinterference, the d efence d oes n ot ap ply: YorkBros v Commissioner for Main Roads .

ELEMENT4: Remedies (selectas needed)

1. Injunction if the

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