LAWS1061 - Torts

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 1 LAWS1061 - Torts

Week 1 - The Role and Function of Tort Law
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What is tort law?
o 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?
2 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
o 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
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3 WEEK 1 - PRIVATE NUISANCE
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What is it?
o 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 4 

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o 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:
o 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)
o 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)
o Substantial or unreasonable interference 5 Reasonableness includes locality of nuisance and utility of defendant behavior
Modern society must make some allowance for the actions of neighbours
(Kennaway v Thompson)
o 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)
o Support of land (Dalton v Angus)
o Right to enter and leave their land (Dollar Sweets v FCAA)
o Presence of sex workers (Thompson Schwabs v Costaki)
Interests not protected

Not right to natural light (Tapling v Jones)
o No right to view from property (Kent v Johnson)
o Unhindered tv reception (Hunter v Canary Wharf)
o Seeing into another property
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6 WEEK 2 - NELGIGENCE
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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 ¼ 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 7

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