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Law Notes > Tort Law Notes

Tor Ture Law Complete Notes

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This is an extract of our Tor Ture Law Complete Notes document, which we sell as part of our Tort Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Table of Contents

Week 1 – The Role and Function of Tort Law 2

WEEK 1 – PRIVATE NUISANCE 4

WEEK 2 – NELGIGENCE 7

WEEK 3 – DUTY OF CARE: MENTAL INJURY 9

WEEK 4 – OCCUPIERS LIABILITY 14

WEEK 4 – PUBLIC AUTHORITIES 16

WEEK 5 – BREACH OF DUTY 19

WEEK 5 – BREACH OF DUTY 22

WEEK 7 – CAUSATION 25

WEEK 7 – CAUSATION 2 28

WEEK 8 – DEFENCES 30

WEEK 8 – DEFENSES 30

WEEK 9 – CONCURRENT LIABILITY: VICARIOUS LIABILIABY & NON-DELIGABLE DUTY 32

WEEK 9 – DAMAGES 37

WEEK 10 & 11 – THEORETICAL TORTS 40

LAWS1061 – Torts

Week 1 – The Role and Function of Tort Law

  • What is tort law?

    • Concerns the obligations of persons living in a crowded society to respect the safety, property and personality of their neighbours

    • As an a priori matter cause and effect

    • As a duty of compensate for wrongfully caused harm ex post after the fact

  • Common law and statute

    • “crisis”

      • Caused by an ever-increasing level of litigation producing ever increasing damages awards

      • Created by an extremely litigious society bend on not taking responsibility for an individuals own actions

    • Aims of Australian tort reform process

      • To reduce litigation

      • Reduce compensation payable to insurers and to make insurance affordable

    • Civil Liability Act 2002 (NSW)

      • Impacts multiple torts in different ways

      • Based on and modifies the common law, but does not replace it

      • Definition of trespass, nuisance, negligence and breach of statutory duty are important

  • The role of tort law

    • Compensatory function

      • To compensate people injured for a wrong

      • Sometimes compensation is not enough to cover all the damages EG quadriplegic

      • Problematic

        • Other ways of spreading both the risk of harm and the liability to pay would be more effective

  • Basis of liability

  • Theoretical approaches to tort law

    • Deterrent function, law and economics, and insurance

      • If the wrongdoer is punished or made to pay for an accident he or she will try to avoid such accidents in the future

      • The fear of criminal prosecution is more likely

      • Guido Calabresi and Richard Posner – the goal of accident law should be to reduce the costs of accidents

      • For many years though tort law ignored the existence of insurance

      • Insurance prevents the deterrent function of tort law from operating by preventing the damages flowing from the wrong doer

    • Corrective justice and civil resource theory

      • Moral rights

      • Weinrib – responsibility: when is a person who causes harm responsible to compensate for the harm caused?

      • Focused on individuals and their obligations

      • Civil recourse theory focuses on the sense of being wronged and that when people are wronged their natural instinct is to seek vengeance

    • Distributive justice and risk allocation

      • A way of distributing goods, risk and looses

      • Also distributing risk EG benefits of vaccines

      • Compensation is for the purpose of placing the plaintiff back into the position they were before the wrong was done

    • Feminist theory of tort law

      • From whose point of view has the law been made?

      • Does the law perpetuate patriarchy or male domination

      • Concerned with the valuing of women’s work for damage purposes

      • And rationality as men are considered more rational then women so it would not be out of character for them to be subject to injury

  • HOT COFFEE DOCUMENTRY

    • Liebeck v McDonalds 1992

    • An elderly women was severely burnt after spilling coffee on herself sitting in the passenger seat of a stopped car

    • Stella Liebeck went into shock and went to hospital

    • $10,000 medical bills with 16% of her body burnt and some were 3rd degree

    • Unreasonably hot and therefore unreasonably dangerous

    • The media coverage changed the premise and facts of the story creating Liebeck to look like the villain

    • $2.9million in compensation reduced to less than $500,000 after media

  • Need tort reform

    • Explosion of litigation producing unreasonably large damages awards

    • Curb frivolous suits filed by litigious plaintiffs with minor injuries who believe that they deserve large damages awards

    • Ensure that people take personal responsibility for their action

WEEK 1 – PRIVATE NUISANCE

  • What is it?

    • Arose out of the action on the case

    • Protects a person’s right to use and enjoyment of their land

    • In order to establish an action of private nuisance the plaintiff must establish they have a title to sue, the defendant had requisite knowledge of the nuisance, the nuisance was substantial or unreasonable

  • Title to sue

    • Only the person with rights in or over the property has standing to sue

    • The individual must:

      • Be the owner or tenant of the property

        • Unless has a reversionary interest in the land

      • Be in actual possession of the property

      • Has the right to exclusive possession

  • Interests protected

    • The interests protected by nuisance include those to do with the land itself

  • Interference with enjoyment of the land

    • Can be tangible or intangible

    • Tangible include:

      • Indirect physical injury to the land

    • Intangible include:

      • Sensible personal discomfort

  • Protection of certain rights relating to land

    • Interference with rights including easements and support of land

      • Interference with the right to support of the land in its natural state so that if the defendant excavates in such a way that the neighbors land collapses, is a common law nuisance

  • Interests not protected

    • Certain invasions do not qualify as private nuisance

      • No right to natural light

      • Or to view from his property

      • Others being able to see into a building does not constitute

  • Unreasonable interference

    • There must be give and take between a defendant’s right to use property and the plaintiffs right to enjoy their property

    • The court must seek to balance the competing interests of both parties

  • Assessment of the defendants activity

    • The defendants actions and utility or usefulness of the defendants conduct are considerations in assessing the give and take

  • Who can be sued

    • Proof of fault is required to be sued

    • The creator of nuisance:

      • The occupier of land is not always liable for the nuisance

      • The creator of nuisance is strictly liable for the nuisance they create

    • Authorizing the nuisance:

      • If an occupier permits others to undertake activities that constitute a nuisance then the occupier is also liable for the nuisance created by the individual

    • Continuing or adopting the nuisance

      • A defendant who does not create the nuisance but continues it can also be liable

  • Defenses:

    • Conduct or consent

      • No nuisance is plaintiff expressly consents

      • Toleration is not implied consent

      • Sturgess v Bridgman

      • No defense to nuisance that activity benefits the public (york bros v Cmmr Main Roads)

    • Statutory authorization

      • Legislation supports in clear language

  • Remedies

    • Damages:

      • Test of remoteness

        • Same as applied to cases of negligence

        • Only liable for the damages that are foreseeable

      • Assessment of damages

        • Dependent on the type of damages

        • Awarded as compensation

        • Assessed for both past and future damages

    • Injunction

      • Interlocutory injunction

        • Prior to trial

        • To restrain continuing nuisance until the matter is finally determined

        • Awarded where there is a “serious question to be tried”

      • Permanent injunction

        • At the trial

        • Court must be satisfied that a nuisance exists and that the nuisance is a substantial interference and that the nuisance is likely to recur

        • This type of injunction will not be granted unless the nuisance is imminent or highly likely to occur and damages would not suffice

    • Abatement or self help

      • Removal of the offending interferences

      • Is only reasonable if there are strong reasons and notice of entry is required unless it is a situation of imminent danger to life

  • Elements of private nuisance

    • Title to sue

      • Owner or tenant

      • Occupier with exclusive possession (Hunter v Canary Wharf)

      • Immediate family members who do not have exclusive possession will not have standing (Oldham v Lawson)

    • Substantial or unreasonable interference

      • Reasonableness includes locality of nuisance and utility of defendant behavior

      • Modern society must make some allowance for the actions of neighbours (Kennaway v Thompson)

    • Does the damage cause a “sensible personal discomfort” (St Helens Smelting v Tipping)

      • Assessing unreasonableness:

        • Standard is of ordinary person

        • No relief if abnormally sensitive

        • Nature of interference

        • Duration of interference

        • Frequency of interference

        • Extent of interference

        • Time of interference

        • Locality of interference

        • Utility of defendants behavior

        • Defendants motivation and any steps taken by defendant to minimize interference

    • Defendant must have requisite knowledge

      • Defendant continues or adopts the nuisance (Stockwell v State of Vic)

      • Measured or duty of care

        • Duty of care of occupiers to remove or reduce hazards to their neighbours

      • The person who authorized the nuisance

      • The defendant should know about the nuisance because the plaintiff has told/complained in the past

  • Interests protected

    • Enjoyment of the land (St Helens Smelting v Tipping)

    • Support of land (Dalton v Angus)

    • Right to enter and leave their land (Dollar Sweets v FCAA)

    • Presence of sex workers (Thompson Schwabs v Costaki)

  • Interests not protected

    • Not right to natural light (Tapling v Jones)

    • No right to view from property (Kent v Johnson)

    • Unhindered tv reception (Hunter v Canary Wharf)

    • Seeing into another property

WEEK 2 – NELGIGENCE

  • Donoghue v Stevenson

    • Appellant sought to recover damages from the respondent for injury’s she suffered as a result of consuming parts of the contents of a bottle of ginger beer which contained the decomposed remains of a snail

    • Respondent: manufacturer of aerated waters

    • The bottle was a dark opaque

    • The appellant had no reason to suspect that it contained anything unordinary

    • The appellant suffered from shock and severe gastro-enteritis

    • It was the duty of the respondent to provide a system that prevents snails entering the goods and a duty to create an efficient system of inspection of quality

  • The meaning of reasonable foreseeability

    • Question of whether duty of care is owed

    • Chapman v Hearse

      • A care driven by the appellant collided with the near side of another vehicle which was about to make a right turn

      • The front vehicle was overturned by the impact and the appellant was thrown out of his bicycle and onto the roadway

      • A man who came to assist the appellant was struck by another car (the respondent) whilst be was attending to the unconscious appellant and died

      • Conclusion: hearse had been negligent and also chapman was liable for damages awarded to the doctors family

  • The unforeseeable plaintiff

    • Palsgraf v Long Island

      • The plaintiff was standing on a railway station in new york when two men ran to catch a train that was pulling out of the station

      • Guards ran to help the men

      • One of the guards dislodged a package the man was holding

      • The parcel fell

      • The parcel contained fireworks that exploded

      • The explosion knocked over some scales

      • The scales fell and hit the plaintiff, injuring her

      • Conclusion: the highest court of new york was against her because she was an unforeseeable plaintiff

    • Bale v seltsam

      • The appellants husband worked for the respondents company

      • During that time, he came home with asbestos dust on his clothing that the appellant washed

      • The appellant developed malignant mesothelioma due to inhalation of asbestos

      • The majority of the court agreed that the appellant was an unforeseeable plaintiff

  • Establishing the categories of duty

    • Determining the approach to take in accepted categories

      • A duty arises so that it does not have to be proved (Chapman v Hearse) or that we know what to take into account in order to prove it

      • Factors which may affect the approach to the duty of care include:

        • Whether an act or omission is involved

        • What kind of harm is caused

        • Who the defendant is

        • Who the plaintiff is

    • Recognising the categories

      • The wrong – acts/omissions/words

        • Where the wrong is, for example, an omission, a duty to act will not arise unless special factors exist

        • Where someone is being harmed there is usually another cause of some kind so that the defendant seems to be peripheral

        • Some are hard to distinguish, like when someone has created a risk of harm and then done nothing to neutralize the harm

      • Types of defendant

        • Defendant who may alter the requirements of the duty of care include public authorities and the government

        • Certain categories of defendant are regarded as immune for policy reasons

      • Types of harm

        • Pure economic loss was not able to be sued for, it being regarded as part of the domain of contract

      • Novel cases

        • Once it is established that the harm suffered was foreseeable, the court takes an incremental approach

        • The court will argue analogies to similar cases

  • Elements of negligence

    • The defendant must have owed the plaintiff a duty of care

    • The duty must have been breached

    • The breach must have caused damage to the plaintiff

  • What is duty of care

    • To establish the tort of negligence

    • Doc defines the scope and substance of negligence law

    • About the plaintiff

    • Is there a duty of care over a class of persons

    • Physical injury (champman v hearse)

  • Lord Atkin and the neighbour principle

    • Then who in law is my neighbour

    • The courts will consider if the plaintiff is so closely and directly affected

    • "Reasonable care to avoid acts + omissions which you can reasonably foresee would be likely to injure your neighbour"

    • "Persons who are so closely and directly affected by my act that i ought have them in contemplation as being affected when I am directly my mind to the acts + omissions"

WEEK 3 – DUTY OF CARE: MENTAL INJURY

  • Psychiatric Harm

    • The concept of psychiatric harm

      • “Nervous shock” – psychiatric harm in legal terms

      • Plaintiffs have recovered compensation in cases of:

        • Where psychiatric harm followed an injury to the self

        • Where the psychiatric harm developed after exposure to a situation of danger creating fear for the self, or within the zone of physical risk

        • Where the psychiatric harm developed after exposure to a situation when the plaintiff was safe form physical harm but feared for relatives

        • Where the psychiatric harm followed a situation where a relative has been badly injured or killed and the plaintiff saw or heard the accident, or the after math of the accident

        • Where the rescuer or workmate developed psychiatric injury after witnessing a horrific scene

      • When a person is severely injured they may later suffer psychiatric harm, such as PTSD or anxiety which impacts on their ordinary life

        • If they have been injured, they can claim damages

        • When they claim damages, they claim for physical harm as well as consequential mental harm

        • The duty of care is really owed in the basis of the original physical injury

      • A person who has not been physically injured may suffer from mental or psychiatric harm because of negligence

        • The duty of care arises because of a duty in respect of psychiatric harm

        • This is “pure” case of “nervous shock”

        • Typically when someone saw, heard or observed a traumatic event, physical injury or death of a loved one

      • The plaintiff must prove that it was reasonably foreseeable that the person in the plaintiffs position would suffer psychiatric harm

        • This must be more than grief or sorrow

        • This is a matter for expert evidence

    • Duty to avoid inflicting psychiatric harm

      • The duty to avoid inflicting mental harm or psychiatric harm to another is one duty category

    • Cases involving special riles of psychiatric harm:

      • Tame v NSW

        • Psychotic depression that developed following a series of events commencing with a care accident in 1991 and involving the incorrect recording in police files [that Mrs Tame had been drunk at the time of the accident]

      • Annetts v Australian Stations

        • The appellants son was employed by the defendant on a cattle station

        • He was 16 so the defendant decided that he should always be fully supervised

        • However after 7 weeks, the son was sent to work on his own as a caretaker on another cattle station

        • After a month a police officer called the appellant to tell him his son was missing and ran away with another boy

        • The husband collapsed so the mother took over the phone

        • The appellants family then travelled from NSW to WA where they were shown their missing sons belongings, including a blood stained hat

        • They were then informed by telephone that their sons vehicle had been found

        • Later that day, Mr Annetts was told a set of remains was found and had to identify them as his son by photo

        • The coroner found that the son had died of dehydration, exhaustion and hypothermia

        • Mr and Mrs Annetts claimed damages for nervous shock

    • Wicks v State Railway Authority (NSW) and Sheehan v State Railway Authority (NSW)

      • The plaintiffs were police officers who were called by radio to the scene of a train accident

      • The train had been derailed and people had been thrown out and remained in the wreckage

      • The plaintiffs spent many hours at the scene trying to revive suffering and distress people who were still alive

      • Seven people died in the accident

      • The state rail admitted negligence

      • The plaintiffs claimed damages for psychiatric injury suffered as a result of attending the scene

      • At first the plaintiffs claims were dismissed

      • The appeals to the court of appeal was dismissed also

      • Both courts refrained from deciding whether a duty of care was owed

      • Conclusion: decided in favor as they saw the immediate aftermath

  • Terminology

    • Nervous shock

    • Psychiatric harm

    • Psychiatric injury

    • “Recognised psychiatric illness”

    • These are all interchangeable

  • Why are courts reluctant in imposing duty of care for mental injury

    • Harder to prove

    • Psychiatry was not well established

    • Not easy to prove objectively

    • Flood gates arguments

  • Psychiatric illness is considered a social construct

    • “it is necessary or desirable for the law to wait for psychiatry to catalogue a form of mental harm before it will provide compensation or should the law be able to take the lead and compensate emerging forms of mental harm” Forster and Engel at 601

  • Hillsborough Disaster 1989

    • Established the need for proximity and family ties

    • 96 people were crushed in a stadium

  • Categorizing mental injury

    • Consequential: resulting from a physical injury

    • Pure mental harm: the mental injury is unrelated to a physical injury or physical injury did not occur

      • Got o CLA and find it as a recognizable mental illness

    • Primary victims: the event happened to them

      • Test: reasonably foreseeable that a person of normal fortitude would be effected in the same way

    • Secondary victims: weren’t directly involved but witnessed it in some way

  • Name and define the series of control mechanisms that the court identified

    • A requirement that the Plaintiff suffered a recognizable mental injury

    • A requirement that liability for mental injury be assessed by reference to a hypothetical “normal fortitude”

    • A requirement that the mental injury be caused by ‘sudden shock’

    • A requirement that the plaintiff directly perceived a distressing phenomenon and its immediate aftermath

  • WICK IMMIEDIATE AFTERMATH LOOK UP

  • Contributory negligence

    • A defense

WEEK 3 – PURE ECONOMIC LOSS

  • What is it?

    • Where economic loss is not consequential on personal injury or property damage

    • One reason this happens is because the injury or property damage has been sustained by a third party

    • Can be caused directly

    • Can be caused by acts, omissions or words

  • Negligent words

    • Can give rise to pure economic loss

    • Eg negligent medical advise, auditors who advise to invest

    • Duty of care in negligence may arise where a negligent misstatement is made

    • Extra factors are needed beyond reasonable foreseeability before a duty of care can arise salient factors

      • Plaintiff has to have a special skill or knowledge

      • The plaintiff had to rely on the special skill or knowledge – the defendant needs to know that the plaintiff was relying on the skill

    • ESANDA FINANCE CORP v PMH

      • What has to be proved to establish a duty of care where auditors of a company have allegedly caused pure economic loss?

      • Facts:

        • Esanda entered into an arrangements with Excel whereby it lent money to companies associated with excel

        • Esanda accepted a guarantee of payment from excel

        • Excel indemnified Esanda for certain other debts

        • PMH were the auditors who has certified them to enter into the transactions

        • Esanda alleged that PMH were negligent

        • Esanda was placed in pure economic loss when excel went into receivership

        • PMH denied on the basis that Esanda’s statement of claim did not disclose enough to establish a duty of care on the part of PMH

      • Conclusion:

        • The primary judge allowed Esanda to amend its statement of claim to add allegations that the standards of institute of chartered accountants required them to consider those who the likely to be the prime users of financial statements and that Esanda was one of those

        • Therefore a person who PHM did or should have foreseen might reasonably rely on their statements

    • Statutory liability for negligent words

      • The common law of negligent misstatement has been overtaken by the action of misrepresentation under acts (Hedley Byrne v Heller 1964)

        • Hedley Byrne v Heller

          • Ratio: a duty of care can arise from a negligent misstatement

      • This prohibited “misleading or deceptive conduct”

  • Pure economic loss caused by an act

    • PERRE v APAND

      • Facts:

        • The appellants, the Perre brothers owned land in SA where they grew potatoes

        • They had a lucrative contract to export potatoes to WA

        • WA had a regulation prohibiting the importation of potatoes grown on land affected by the disease bacterial wilt

        • By supplying infected seed, the respondents negligently introduced bacterial wilt onto the Sparnon’s land

        • The Perres could then not use their land for supply to the WA market

        • They therefore had pure economic loss

      • Conclusion:

        • In the full federal court it was held that apand owed a duty of care to the Sparnons and this was not challenged in the high court

  • How does defendant escape liability

    • Autonomy for both individuals

    • Flood gate arguments

  • Why were the courts reluctant to award pure economic loss

    • Avoid imposing indeterminate liability (floodgate argument)

    • Avoid imposing unreasonable burdens

    • Losses were often mere transactions of wealth

  • CALTEX v DREDGE

    • Facts:

      • There were undersea pipe lines that Caltex was using to run oil

      • A dredge came through a ran into the pipe line and destroyed it

      • Caltex had to use trucks to drive the oil

      • Caltex argued that they suffered pure financial loss

    • The need is for control mechanisms so they needed salient feature

  • Salient features

    • Defendants knowledge that the property damaged was like to be productive of economic loss

    • Defendants’ knowledge of pipelines

WEEK 4 – OCCUPIERS LIABILITY

  • Occupiers liability

    • Tort recognises that occupiers of land owe a duty of care to those who enter it

    • Who is an occupier

      • In negligence a person who owns or is on and controls the land

  • AUSTRALIAN SAFEWAY STORES v ZALUZNA (1987)

    • Facts

      • A plaintiff walks into a store

      • Slips because it was a rainy day

    • Findings

      • It was not the rains fault

      • Owe a duty of care to people who enter a store

    • How did this change the law

      • Dismissed the idea of occupiers duty

      • Replaced it with negligence

  • Controlling the conduct of others (duties to third parties)

    • Cases where D is directly liable for their own failure (or servants or agents failure)to exercise or care over the conduct of persons who cause harm to the P

      • Criminal activity by a third party (Dorset Yacht Case)

      • Parents and the behavior of their children

    • MODBURY TRIANGLE SHOPPING CENTRE V ANZIL

      • Facts

        • A man owns a shopping center with a video store on the outside

        • The lights switch off at 10pm in the car park

        • A man from the video stroe left after the lights were switched off

        • He was mugged when he left

      • What was the central issue

        • Whether it was reasonably foreseeable for the owner of the car park to tell the physical harm of the man in the car park

        • Does the owner have a duty of care for the people in the car park

      • The legal tests

        • Control

          • Special relationship

          • Reliance on the special relationship

        • Reliance on control

  • Legal tests

    • The legal tests in relation to duty between an occupier of premises and visitors on the premises, after these two cases, appear to be:

      • The D must be an occupier

        • Control test

          • The D must have control

          • Or immediate right to exercise control

      • Liability is in respect of premises

        • Land and immovable structures on land including bridges, lifts, escalators, flagpoles, wharves

        • Movable structures such as ladders scaffolding, skips and cars

        • Static condition or activities

      • Liability is to any person on the premises who is part of a reasonably foreseeable class of persons who might suffer injury

      • Danger can arise out of the static condition of the premises and out of activities conducted on the land

      • An occupier owes a duty of care in relation to the acts of third parties if further tests are satisfied

        • They have control over the actions of the third party

        • There is a reasonable reliance by the P

        • There is an assumption of responsibility by the occupier for the class of P

WEEK 4 – PUBLIC AUTHORITIES SVW: 319-340 CLA: ss 40, 41, 42, 43A

  • Aka: Statutory bodies

    • Mason J within Sutherland Shire Council v Heyman: bodies “entrusted by statute with functions to be performed in the public interest or for public purposes”

    • Public authorities must exercise their powers in the public interest specified by the statute – not just as they choose

  • GEDDIS v PROPRIETORS OF BANN RESERVOIR (1873)

    • Recognised that a public authority could be liable for negligence for the way it exercised its statutory power

  • Issue with considering the liability of public authorities

    • Only exists by virtue of the legislation with both creates it and gives its powers and duties

    • Whether the public nature of the authority means that it should bot be sued in private law

    • General idea of the rule of law – that everyone should be subject to the law including public authorities

      • However, if the public authority has been given a power or discretion and does not exercise it, then the question is whether it should exercise it

  • ANNS v MERTON LINDON BOROUGH COUNCIL

    • Until this case, public authorites were generally regarded as immune from suit in negligence for a failure to exercise power

  • SOUTHERLAND SHIRE COUNCIL v HEYMAN

    • The notion that general reliance would arise where the government has supplanted private responsibility

    • General reliance is reliance by the community at large, and was to be distinguished from specific reliance which would arise only when there was actual reliance by the plaintiff

  • PYRENEES SHIRE COUNCIL v DAY (1998)

    • The doctrines of special and general reliance where considered

      • General reliance does not necessarily give rise to a duty of care

    • Facts

      • Tenants occupied premises A, which was destroyed by a fire including adjoining premises B

      • The fire was caused by a defect in the chimney in premises A

      • A few years prior the fire authority has advised the council that the fire was unsafe to use and the council told the then tenants of the danger

      • The tenants failed to tell the owner of the premises nor did they do anything to repair the chimney

      • The council had the power to notify the new tenants or the owner but did not

      • The tenants of premises B, sued the council

    • Conclusion

      • The Days succeeded

      • The minority who used general reliance, held that there was a duty of care owed both to the owners of premises A and the owners of adjoining premises B but not to the original owners of premises A

  • CRIMMINS v STEVEDORING INDUSTRY FINANCE COMMITTEE (1999)

    • To determine whether public authority could be liable for failing to protect a worker employed by organisations subsidiary to it

    • Facts

      • Crimmins was employed as a waterside worker at Port Melbourne

      • Stevedoring operations were then regulated by the Australian Stevedoring Industry Authority which was established by the Stevedoring Industry Act 1956

      • The act set out the powers and responsibilities of the authority in relation to the operations

      • The authority was later abolished and replaced by the termination act

      • The termination act provided that respondent was to assume “all the liabilities and obligations of the authority that existed”

      • During Crimmins time of employment, he would occasionally unload asbestos cargoes and was later diagnosed with mesothelioma

      • He died – his widow was suing

  • GRAHAM BARCLAY OYSTERS v RYAN

    • Facts:

      • Ryan was one of over 100 people who became ill with Hepatitis A after eating contaminated oysters from a lake in NSW

      • The grower of the oysters was Barclay Oysters

      • The distributor was Barclay Distributors, a separate company owned by the same person

      • The evidence was that the HAV came into the lake through faecal contamination from various outlets, caravan parks and sewerage and storm water drains after a severe storm

      • The oyster industry used a “depuration” process to disinfect the oysters (putting them in clean water with ultra violet radiation to kill any viruses)

      • The state put in place a mandatory depuration for 36hrs with which Barclay had complied

      • The evidence suggested that the depuration could reduce viral load but not remove it completely so it was necessary to monitor water quality

      • Barclay delayed harvesting for 2 days after the storm

      • Although the primary judge found that the state had not done a sanitary survey which the expert evidence suggested was necessary

      • Barlcay had random oysters tested for e-coli but there was no was to test for HAVw

      • When the epidemic occurred, Barclay recalled their oysters and did not harvest for the rest of the season

    • Three legal tests

      • Degree and nature of control of D

      • Vulnerability of P

      • Scope of the statute

    • Foreseeable classes of persons

      • The people consuming the oysters

  • What are public authorities s41 CLA

    • Council

    • Government department

    • Police

    • This is a broad definition

  • Interaction between the CLA and Common Law

    • “The legislation depends on and by no means completely displaces the common law” (SVW p.320)

  • Aim of the CLA

    • To reduce the liability of public authorities, marking them responsible for negligence only if their acts were so unreasonable that no reasonable public functionality could have made it

    • Legislation as drafted, goes further than the lpp recommendation

  • Duty of public authorities

    • Difference between public authority and statutory power

      • Duty: shall, must

      • Power: may, discretion

    • Should public authorities be liable in negligence on the same basis as an ordinary citizen

      • The policy/operation distinction reflected concern about the authorities limited resources and that often policy matters relate to budgetary allocations which courts should be reluctant to interfere with

      • Rule of law

    • Four categories of duty of care in action involving public authority

      • Negligent exercise of a statutory power

      • Failure to exercise a statutory power

      • Failure to exercise a duty

      • Negligent exercise of a duty

  • McHugh 6 point test

    • Was it reasonably foreseeable that the act or omission would result in injury to the P?

      • Class of persons?

      • If yes, then duty

    • Did the D have the power to protect a specific class including the P?

      • Look at statute

      • If yes, then duty

    • Was the P vulnerable? (ie could the P have reasonably protected themselves?)

      • If yes, then duty

    • Did the D know, or ought to have known, of the risk of harm to the specific class including the P if it did not exercise?

      • If yes, then duty

    • Would a duty impose liability on core policy-making?

      • If yes, then no duty

      • If no, then duty

    • Are there any other policy reasons?

      • If yes, then no duty

      • If no, then duty

WEEK 5 – BREACH OF DUTY SVW: 449-472. CLA s5O, s5P

  • Who is the reasonable person?

    • D conduct measured by the standard of “reasonable person”

    • Been described as

      • Man on the clap man omnibus

      • Man on the Bondi tram

      • Reasonable man of ordinary intelligence and experience

      • The man who takes the magazines home and in the evening pushes the lawn mover in his shirt sleeves

    • Leon Green: the qualities of personality are numerous; their shadings are countless; the conduct of individuals incalculable at present in its variety; the possible combinations of these are literally infinite, as infinite as space and time

    • Will the judges assessment of what is reasonable reflect community values

      • Dominated by male appointees of British or Irish heritage

      • Privately educated

  • VAUGHAN v MENLOVE

    • “Instead of saying that the liability for negligence should be coextensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe”.

  • Reasonable person critique – Gender

    • J Conaghan, “Tort Law and the Feminist Critique of Reason” in A Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (University of Kent, 1996), pp 51-58

    • “Impersonal” nature of the standard of being

    • Reasonable man is a legal device which operate to “obscure the policy content of judicial decision making

    • Gender specificity is not just a linguistic convention

    • The standard he expresses has a significant gender content

    • Sir Alan Herbert’s depiction of women in his classic parody of the common law:

      • There exist a class of beings illogical, impulsive, careless, irresponsible, extravagant, prejudiced and free for the most part from those worthy and repellent excellences which distinguish the Reasonable Man.

      • Presents women as emotional frivolous beings, incapable of rational thinking

  • Reasonable person critique – age: children

    • McHALE v WATSON

      • Facts:

        • Watson aged 12 threw a piece of scrap metal or bolt which has sharpended at one end at a hardwood post expecting it to stick to the post

        • The dart missed the post and hit 9yr old Susan McHale who was standing nearby

        • Susan was blinded in on eye

        • She sued harry and his parents in negligence and Barry in trespass

        • The judge applied the standard fo care of an ordinary boy aged 12

      • Comments:

        • A reasonable man is not 12

        • A different standard should be applied to children

        • It is not abnormal to go through childhood

  • Reasonable person critique – Mental illness and disability

    • CARRIER v BONHAM

      • Facts:

        • Bonham was a psychiatric patient with a long history of schizophrenia

        • He escaped the hospital where he was detained

        • Carrier was driving a bus when Bonham intentionally jumped infront of it, to kill himself

        • Carrier breaked but was unable to avoid injuring Bonham

        • Carrier suffered nervous shock and was unable to continue working as a bus driver

      • Comments

        • The appeal squarely raises the question whether a person of unsound mind is capable at common law of being legally liable in negligence for conduct by someone with a mental condition

  • Reasonable person critique – learners

    • IMBREE v McNEILLY; McNIELLY v IMBREE

      • The respondent was aged 16 and 5 months

      • As the appellant knew, the first respondent has little driving experience

      • He was not licensed to deice

      • He did not hold a learners permit

      • He lost control of the vehicle and it overturned

      • The appellant, in the front seat, was seriously injured

  • Professional and those with special skill

    • The fact that the D possess more than an average degree of skill due to the nature of his or her occupation and training raises the standard of cafre

    • ROGERS v WHITAKER

      • Rogers was an ophthalmic surgeon

      • The respondent was a patient who became also completely blind after the defendant operated on her right eye

      • She had been blind in her right eye since the age of nine

      • The only possible negliegence was that the D did not warn the plaintiff of a one in 14000 chance of a rare complication occurring in her good eye

  • 3 elements of negligence

    • The D mist have owed the P a duty of care

    • The duty must have been breached

    • The breach must have caused damage to the P

  • Proving a breach

    • Establish there is a duty of care

    • Determine whether the D is in breach of that duty:

      • P must prove that the D conduct fell below the required standard of care as determined by what a reasonable person would have done

      • There must be a reasonable foreseeability of a real risk of injury arising from the D conduct

      • Determining the Standard of Care: Who is a reasonable person?

        • Children (McHale)

        • Mental Illness (Carrier)

        • Learners or Extra skill (Imbree)

      • Can the D utitilise s5O and s5P? (Bolam principle; Rogers)

        • Is the D a ‘professional’?

        • Is the D ‘providing services’?

        • Is the service/practice ‘widely accepted’?

        • Is the opinion ‘irrational’?

WEEK 5 – BREACH OF DUTY SVW 393-396; 398; 407-428

  • Determining a breach of duty

    • Fell below standard of care

    • Rf of risk

  • General principles for establishing a breach of duty

  • The breach enquiry has two limbs

    • Reasonable foreseeability of a real risk of injury arising from the defendants conduct (s5B(1) CLA)

    • The reasonableness of the defendants response to that risk

  • Test for breach: Wyong Shire Council v Shirt

    • Foreseeability of risk of injury

    • Duty foreseeability of the plaintiff

    • Breach risk of injury

    • Remoteness kind of damage and harm sustained by the plaintiff

    • WYONG SHIRE COUNCIL v SHIRT

  • Facts:

    • Plaintiff became quadriplegic whilst striking his head on the bottom of a lake water skiing

    • The lake was just over a meter deep

    • Was often used for water skiing despite its shallowness

    • The council had built ramps and dredged deeper channels for power boats used for water skiing

    • The plaintiff argued that that was misleading in depicting the lakes safety for water skiing

    • There was a sign that read “deep water” to alert swimmers

    • If “not farfetched or fanciful” its foreseeable

  • DOUBLEDAY v KELLY

  • Facts:

  • The 7 year old was injured trying to roller-skate on a trampoline at the defendant house

  • She rolled backwards and fell off

  • Sustaining a supra-conduylar fracture of the humerous and associated damage to the right medial nerve and brachial artery

    • “Not significant” risk of injury (s5B(1)(b) CLA)

  • Not significant was intended to be a more stringent test than the common law position expressed in Shirt

    • Responding to the foreseeable risk: the calculus of negligence

    • Once foreseeability of a “not significant” risk is established, it is apparent that reasonableness requires some response by the defendant

    • Weigh out “considerations which ordinarily regulate the conduct of human affairs”

    • Reasonableness is concerned with determining the appropriate boundaries between individual and collective responsibilities for injury and misfortune

    • In deciding whether a reasonable person would have taken precautions against risk of harm, the court is to consider the following (among other relevant things):

  • The probability that the harm would occur if care were not taken

  • The likely seriousness of the harm

  • The burden of taking precautions to avoid the risk of harm

  • The social utility of the activity that creates the risk of harm

  • Probability of harm

    • BOLTON v STONE

      • Action brought in negligence and nuisance by a woman who was struck in the head whilst standing outside her house, across the road from a cricket ground

      • The ground had been there since 1864

      • The judge agreed with regret to the majority stating that the law of negligence is concerned less with what is fair than with what is culpable

    • RTA v DEDERER

      • Mr Dederer has often seen people jumping off a bridge in an estuary area which was very tidal

  • The gravity or likely seriousness of harm

    • PARIS v STEPHNEY BOROUGH COUNCIL

      • In situation where the defendant knows of some particular vuklnerability to greater injury on the part of the plaintiff, the seriousness of potential consequences elevates the level of cade required by the defendant

      • Facts:

        • The plaintiff was employed in the defendant garage

        • The defendant knew his employee only had one eye

        • While he was using a hammer to remove a bolt, a piece of metal flew into his good eye making him almost completely blind

        • He alleged that his employers failure to supply safety goggles constituted breach of duty

  • Burden of taking precautions

    • What a reasonable person would have done in response to the risk

    • WOODS v MULTI-SPORT HOLDINGS

      • The plaintiff suffered serious injury, leading to 99% blindness in one eye during a game of indoor cricket

      • Certain equipment had been supplied but did not include helmets or pads

      • Particulars of negligence included failure to supply eye protection and failure to erect a sign warning of the dangers of the game

    • NEINDORF v JUNKOVIC

      • Respondent suffered injury when she tripped on a n uneven surface in the driveway of the appellants home during a garage sale

      • Entrants to houses have differing capacities to observe and appreciate risks, and to take care of their own safety

  • Social utility of the risk-creating activity

    • E v AUSTRALIAN RED CROSS SOCIETY

      • Aids was contracted by the recipient of a post-operative blood transfusion

      • Due to the contamination, the blood transfusion that saved the mans life, now threatens to shorten it

  • Calculus of negligence (s5B(2) CLA)

    • In deciding whether a reasonable person would have taken precautions against risk of harm, the court is to consider the following (among other relevant things):

  • The probability that the harm would occur if care were not taken

  • The likely seriousness of the harm

  • The burden of taking precautions to avoid the risk of harm

  • The social utility of the activity that creates the risk of harm

    • The list is not exhaustive

    • No particular weighing allocated to any element will vary by case

WEEK 7 – CAUSATION SVW: 484-498; 502-509; 541-542

  • Factual causation and necessary conditions

    • Common law

      • Essential link between breach of duty and harm

      • Plaintiff proves the defendants breach of duty is causally connected to their harm or damage

      • “Exceptional cases”

      • Kiefel: approached in 2 steps

        • Causation in fact: the factors in which the damage would not...

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