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:
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
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
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
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"
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
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
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
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’?
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
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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