As a duty of care is established between [P] and [D] it is necessary to examine whether [D] breached that duty. [Test 2]: Novel or Special Duty Category As the relationship between [P] and [D] is not an established category, it is necessary to establish that [D] owed [P] a duty of care in relation to the circumstances in which [P] was injured. [He/she] must show that the facts giving rise to the injury fall within a special duty category. Category: Nervous Shock Primary Victims: As [P] has also suffered a physical injury, consequential nervous shock is also recoverable: Donoghue v Stevenson.

[Element 4]: Policy Issues Despite showing that [D] may owe [P] a duty of care, control mechanisms may limit this duty. These issues include: Sullivan v Moody


Indeterminacy: recovery will risk creating an indeterminate liability to an indeterminate number of people.



ii) Disproportion: may impose an unreasonable or disproportionate burden of [D]. iii)Disincentive: litigation may operate as a disincentive to rehabilitation. iv) Coherency of the Law: (Hancock v Wallace- police must inform)
Tentative Conclusion Based on [APPLY], it would be [likely/unlikely] that [D] owed [P] a duty of care. As such, it [is/isn’t] necessary to determine whether [D] has breached [his/her] duty. Pure Nervous Shock: Hancock v Wallace – father was a secondary hearsay victim, not at accident, not at aftermath, but told over phone that person decapitated may have been his son; Pl recovered because of extremely close relationship with victim. Category: Illegality The mere fact that P was acting illegally at the time is not a total defence (Henwood v Municipal Tramways Trust – Boy on tram decapitated) Joint Illegal Enterprise: Must look at the nature of the circumstances. Was there proximity except for the illegal relationship (Gala v Preston – Playing Pool/ran out of money/stolen car/accident); merely being involved in illegality does not automatically negate the existence of D.o.C. – have to examine the relationship (Proximity) btw parties. - ‘A duty of care arises out of the relationship of particular persons, one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed.’ (Italiano v Barbaro – Scam) Category: Nonfeasance –failure to act Two types: 1. Failure to do something in the course of a positive act (e.g. failure to apply brakes while driving. 2. Mere failure to take a positive action (e.g. to not jump into a fast moving river to rescue someone) The general rule is that [D] does not have a duty to take positive action for the safety of [P]: Stovin v Wise unless there is a:








As [P] is a primary victim [he/she] does not have to establish that the psychiatric injury suffered was foreseeable in a person of normal fortitude. Secondary Victims: As a [P] is a secondary victim, [D] does not owe [him/her] a duty to take care not to cause pure mental harm unless [D] ought to have foreseen that a person of normal fortitude might have suffered a recognised psychiatric injury if reasonable care was not taken. To show that a duty of care existed, [P] must show that: [Element 1]: As a result of the actions of [D], [P] has suffered a recognised psychiatric injury in the form of [APPLY]. [Element 2]: [P’s] recognised psychiatric injury was the result of the sudden shock of [seeing/hearing] that [APPLY], rather than mere grief or emotional exhaustion: Jaensch v Coffey. [Element 3]: [P’s] psychiatric injury must have been reasonably foreseeable to [D] at the time: McLoughlin v O’Brian. [P] does not have to have normal fortitude as long as the impact would be the same for a person of normal fortitude: Tame v New South Wales To establish reasonable foreseeability the following factors affecting [P] must be taken into consideration:

1. NEGLIGENCE TEMPLATE A cause of action in negligence = when a person/property is injured by the failure of another to take reasonable care to prevent foreseeable harm. Elements in Negligence: (1) Tortious cause of action (tort committed) (2) Causation (3) Remoteness (4) No breach of duty to mitigate [P] has a possible cause of action in negligence against [D]. To be successful, [P] must prove on the balance of probabilities (Barnett v Chelsea & Kensington Hospital Management Committee) that:
1) 2) 3) 4) 5) 6)

[He/she] was owed a duty of care by [D]; The duty of care was breached by [D]; P suffered a loss D’s breach of duty actually caused the loss P suffered (Causation) Type of loss was reasonably foreseeable- was not too remote, a consequence of D’s conduct (Remoteness) No part of the loss was caused by any failure of P to mitigate losses suffered


[D] must then raise defences such as volenti, contributory negligence or joint illegal activity. As the accident occurred on [DATE] [P] is within the 3 year statutory time limit for [his/her] claim: LAA ss10-11. DUTY OF CARE [P] must show that it is reasonably foreseeable that the possibility of careless conduct of any kind on the part of [D] may result in damage of any kind to [P’s] [person/property]: Donoghue v Stevenson. [NOTE: if statutory go directly to Statutory Authorities]. [Test 1]: Established Category The relationship between [P] and [D] falls within the established category of [CATEGORY: CASE]. Categories: Road users: Broadhill v Young. Driver/passenger: Cook v Cook. Doctor/patient: Rodgers v Whitaker. Employer/employee: Smith v Charles Baker & Co. Occupier/invitee: Heaven v Pender. Manufacturer/consumer: Donoghue v Stevenson

Close relationship of [P] with original victim: extends to anyone who is bound by a relationship of love and affection. Certain classes (parents/spouses) are presumed to have this relationship: Alcock v Chief of South Yorkshire Police; or Annett v Australian Stations; mom called work. 2) Direct Sensory Perception/Aftermath:


Pre-existing protective relationship between [P] and [D] imposes a positive duty to act:



Hearing is sufficient: Hancock v Wallace: was not at accident, not at hospital, told over the phone.


Seeing: Alcock: it is insufficient to see it on TV if individuals cannot be identified, it is limited to those actually present.

Teacher/student: Richards v Victoria: must take reasonable steps to protect students; Geyer v Downs: once school grounds opened, duty of care arises; St Mark’s Orthodox Coptic College v Abraham: student fell from balcony; school open = duty


(iii) 3) 4) 5) 6)

Aftermath: Jaensch v Coffey: only saw victim go into operating room; Spence v Percy: aftermath limited by time; death of victim after 3yr coma is too far removed in time; Alcock v CCSYP: identification at morgue is not close enough. Antecedent Relationship: between [P] and [D]. Annett v Australian Stations: phone call established relationship. Duty owed due to the ordinary principles of negligence, closeness of relationship between D and P combined with D’s control and risk to son. Sudden Shock: cannot be accumulated over time: Annetts. Gruesome Factor: nature of the injuries: Hancock v Wallace.

Prisoner/prison authority: L v Commonwealth: must separate violent offenders from those on remand.

iii) iv) 2) i)

Occupier/visitor: Romeo v NT Conservation Commission Employer/employee: Paris v Stepney Borough

Duty to prevent 3rd party causing harm to [P]: Child/parent: Smith v Leurs: a duty to prevent child from causing injury to others; Curmi v McLennan: parent liable because gun was readily available to child;


Control: degree of control exercised by [D] over safety of victim: Gifford v Patrick stevedores

Guests/hotel: Chordas v Bryant: a duty of care owed to protect patrons; Wormald v Robertson: hotel liable because offender had been complained about, but hotel did nothing until he assaulted another guest.


3) Statute may impose a duty to act: Where an Act creates an obligation and provides enforcement in a specified manner. It was a policy decision in determining the nature of regulation of the oyster industry and therefore not reviewable. not merely a class of persons. The level at where the decision is made determines if it is policy/operational. Pure Nervous Shock: Hancock v Wallace – father was a secondary hearsay victim. quadrepegic. not at accident. Crimmins v Stevedoring: Facts: were Stevedores under D of C to warn workers of asbestos. fire broke out and damaged neighbouring property. for [P] to have a claim against [D] in a novel situation [he/she] must show: Sullivan v Moody 1) 2) [He/she] was a member of a class of persons likely to be injured by [D’s] conduct. hit head. Where it exercises powers in respect of operational functions. Power would cause P’s injuries (ii) did it cause them to have to warn a specific class (iii) was P vulnerable (iv) was there knowledge of possible harm to P. The law should allow for the incremental increase in duty of care situations to the circumstances experienced by [P]. (b) Characteristics of the conduct. (iii) it was only a minor variation on the rule that physical damage was necessary to found an action. but not breached. (4) Administrative. it is necessary to determine whether [D] has breached their duty. held Council owed duty to neighbours because: (i) Council had specific knowledge. indeterminacy Pyrenees Council v Day 1998: Council failed to follow up an order directing tenant to repair fireplace. Messy case need (i) Rf that failure to exercise stat. Pl recovered because D had peculiar knowledge that Pl in particular would suffer economic loss. (d) Compare to previous decisions. rare tidal occurance. [Element 2]: Did the authority have a CL duty to exercise statutory power? As [P] claims that the [Statutory Authority] owed [him/her] a duty of care the courts will examine the following salient factors: Crimmins v Stevedoring [NOTE: a ‘no’ answer to any factor will result in no duty arising] or Graham Barclay Oysters 1) 2) 3) 4) 5) 6) damaged neighbouring property. P’s personal characteristics (see Ghantous: P tripped on un-level footpath. and in particular [APPLY]. (e) Policy decisions. sued for not having erected warning signs or fence. it [would/would not] be necessary to determine whether [D] was under a common law duty to take reasonable care when exercising its power. the court must decide that [D] is under a common law duty to exercise statutory power and when exercising power they are under a duty to take reasonable care: Anns v London Borough of Merton. fire broke out and 2 . However if Councils actions gave rise to reliance then a duty arises. the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care Tentative Conclusion The relevant salient factors. As such. Vairy v Wyong Shire Council 2005: P dived into shallow water. Wilmot) Danger Not Obvious (Romeo) (Soper v GCCC – fall on wet • Depending on obvious to who. (a) Identify type of harm. it will be liable If SA has no statutory obligation to act. Is the decision maker executive or subordinate?) Tentative Conclusion As [P] [was/was not] undertaking operational acts in relation to [APPLY] it would be [likely/unlikely] that it was under a duty to take reasonable care. (ii) power to prevent it. Mason J spoke of general reliance. Other Issues: Category: Other Novel Category Based on the facts provided. no duty. This case showed the importance of foreseeability. Ryan v Great Lakes Council: No absolute duty owed by SA. Pyrenee Shires Council v Day: Council failed to follow up an order directing tenant to repair fireplace. Wilmot v South Australia: Pl injured when bike riding in nature reserve.C v Heyman: Facts: Council inspected P’s buildings (but not footings) & approved. so power to prevent amounted to a duty. CASE DETAILS: Pure Economic Loss: The Dredge Willemstad – Pipeline belonging to primary victim ruptured. (c) Nature of the relationship. and. social/political factors/restraints.C v Lutz: Held: Adopted the ‘general reliance’ approach. As such. The Council owed a DOC because it had adopted a general practice of demolishing known derelict buildings thus P entitled to assume council would promptly demolish building. As such. Shirt calculas: magnitide of risk against the likelihood of happening. (iii) Fair. performance can’t be enforced in any other way: Bishop of Rochester v Bridges. saw council not being under duty to erect sign. Held: no legislative intention that they were liable. social and political decisions. Pl normally used the pipeline and recovered costs for alternate means of delivery even though Pl had not suffered physical property damage. Duty should only change when the authorities own conduct creates a risk of injury or some special relationship arises. but duty exists in administrative and operational matters. it is not liable for any failure to act except when by its conduct it places itself in such a position. not at aftermath. Cracks later appeared & P sued Held: Council was found negligent. Council ought to have known the possible damage that would result from omission but failed to take reasonable steps to prevent the damage. [P] was [APPLY]. it would appear that the possible negligence by [D] does not fall within an established or special duty category. but can when it is operational/discretionary. Pl recovered because of extremely close relationship with victim. Tentative Conclusion As the relationship between [P] and [D] is that of a [APPLY]. (ii) Proximity. Vulnerability: [P] was especially vulnerable and could not reasonably be expected to adequately safeguard himself or interests Knowledge: knew or ought to have known of an existing risk of harm to a specific class of people Impose Liability: would the imposition of a duty of care impose liability with respect to the [D’s] exercise of “core policy making” or “quasi-legislative” functions? If yes. Majority = duty owed. not policy. If given power – discretionary. it will be liable If it has a duty to act and its failure to act causes damage. [Key Principles: Anns v London Borough of Merton 1) 2) 3) 4) If SA exceeds power and thereby causes damage. distinguishable from Nagle because D did not invite visitors to use the land and decision to leave land open was made at a high level. Romeo v NT Conservation Commission: Pl fell down cliff.g. it would be [likely that [D] owed [P] a duty of care. Council found not to be liable. but not liable as there was no general duty was owed to exercise its powers. dove in Use Encouraged: (Nagle. Kirby applied Caparo test: (i) Reasonable Foreseeability. Just and Reasonable. extent of use and character of people (plaintiff was drunk) who enter. (a) Control: was the authority in a position of control: Graham Barclay Oysters v Ryan 2002: Held that the council did not have enough control over the manufacturing of oysters to establish a private duty of care to the plaintiffs who contaminated HAV by eating oyster manufactured in a lake which was under council supervision. In this case. D brought itself into a relationship of proximity with visitors and thus had a duty of care to protect visitors from foreseeable risks – D should have erected warning signs. indicate that [D] [would/would not] owe [P] a duty of care. (a) (b) (a) Resources: the ability of the SA to afford to undertake measures. if given duty – mandatory. Brennan applied Legislative Intent test: was right to private recovery intended. Perre v Apand P/L: P may recover if: (i) particular class of people at risk. but told over phone that person decapitated may have been his son. (ii) the class is vulnerable because unable to protect itself. Mason J also spoke of when it is policy the courts cannot intervene (ie: budgetary allocation. Reasonable Foreseeability: that their act or omission might result in injury to [P] Class of People: did the authority have the power to protect the interest of a specified class of people including the [P] rather than the public at large. Parramatta C. held council owed a duty to neighbours because: i) Council had specific knowledge ii) Council had power to prevent it iii) P was vulnerable. provided facilities and encouraged people to swim in rock pools. HCA held not liable as ordinary people in broad daylight should know (obvious). Tentative Conclusion As it would appear that [D] [APPLY] it [would/would not] owe [P] a duty of care. [Element 4]: Duty of Land Managers Duty arises when: (1) (2) (3) grass) Foreseeable Damage: (Nagle) is hidden rocks in lake. Because D advertised. Policy involves finance. decision: (Sutherland) CASE DETAILS: Nagle v Rottnest Island Authority: Pl injured when diving into rock pool. it will be liable] [Element 1]: Legislative Intent [P] must show that the Act establishing the [statutory authority] intended for it to be liable for [APPLY]. reasonable care should be assessed with reference to nature of land. [Element 3]: When exercising power did authority have a CL duty to exercise reasonable care? As it would appear that the Statutory Authority [was/was not] undertaking operational acts they will give rise to liability to exercise reasonable care: Sutherland Council v Heyman (no duty exists when making policy decisions. as a general rule. Category: Statutory Authorities For [P] to succeed in a claim against [D]. AND DO NOT NEED (i) would such a duty impose liability in rewlation to core policy making (ii) would it open flood gates Critiacal factor – P’s vulnerability when compared with the D’s knowledge of the risk & its powers to control or minimise that risk. it [is/is not] necessary to determine whether they have breached that duty. (iii) P was vulnerable. so power to prevent amounted to a duty CASE DETAILS: Sutherland S. As such. Supervening Policy Reasons: e. Brodie v Singleton Shire Council: "on occasions.

giving rise to a non-delegable duty to take reasonable care (often an issue with sub-contractors). Burnie Port Authority v General Jones: in some cases the risk will be so high because of vulnerability.e. Once risk known of. but all involve negligence by [D]. In this case. [P] should be aware that the court will examine the issue of causation in a practical. 2) Where there are alternative causes. after injury occurred) then shows the ease of taking precautions Calledonian Collieries v Spiers (train track) [Test 3]: Social Utility: If present it overrides failure to take precautions. Queensland v Keeys: where an officer suffered psychiatric injury after being struck by a bullet. because it was a predictable consequence of leaving the gun unattended and there was also a breach of duty not to expose other children to the risk. CAUSATION [P] must show that [his/her] injuries would not have been suffered but for [D’s] negligence: Barnett v Chelsea & Kensington Hospital Management Committee. Havenaar v Havenaar: Voluntary consumption of alcohol broke the causal chain between D & alcoholism. held that is reasonably foreseeable that a volunteer will be injured by another’s negligence during a rescue. just modifies it. which [P] crashed into.[APPLY] [Test 2]: Burden of Taking Precautions: The onus is on [P] to show there were reasonable measures available to [D] to limit the risk to [him/her]. personal skill is irrelevant. Ease of Precaution: if [D] has later provided for this risk (i. (First year lawyer or reasonable lawyer) Stokes v Guest. must implement precautions: Thompson v Smiths Shiprepairs. the court will not speculate as to the cause in the absence of evidence which shows one cause is more probable than the others: West v Government Insurance Office: where [P]. unless it materially increases the risk of injury: March v Stramare: where [D] negligently parked a truck in the middle of the road. but judged on the bases of an ordinary sane person (D’s insurer paid so he was effectively not penalised for insanity. If shown. PERSUASIVE ONLY (1) (2) Cost of Precaution: as a % of the whole operation. McKiernan v Manhire: where [P] tripped in the hospital while recovering from her primary injury suffered as a result of [D’s] negligent act. the chain of causation will be broken if [APPLY FACTS TO BELOW: CASE] 1) Subsequent intentional act of a 3rd party: Curmi v McLennan: where the intentional act of firing a gun was not found to break the causal connection. all supposing [D] was negligent while driving If there are multiple explanations. But a minor who engages in dangerous adult activities must conform to the standard of a reasonably prudent adult. Seriousness of Harm: the more serious the potential consequences. [NOTE]: Where [D] pleads novus actus interveniens: [D] will argue that the [APPLY] is an intervening act that breaks the chain of causation (even if the BUT FOR test is satisfied) However. Also applies to drink drivers. but P knew that D was learning to drive. 2). Yates v Jones: Addiction is caused by a NAI from the intentional actions of the drug pusher & the addict to consume heroin. it would be reasonable to suggest that [P] would be at risk of harm as a result of [D] [APPLY] While a reasonable response in this case would be [APPLY] whether this was reasonable in the circumstances will depend upon balancing the magnitude of risk against the burden of taking precautions: Wyong Shire Council v Shirt. CASE DETAILS: 1) Merely causing [P] to be to be at the scene of the accident is insufficient to establish a causal connection. held that tripping could’ve occurred anywhere. BREACH OF DUTY [D] would be considered to have breached [his/her] duty to [P] if [his/her] conduct fell below that expected of a reasonable [APPLY] in the same position: Blyth v Birmingham Water Co. Mahoney v J Kruschich P/L: A worker received negligent medical treatment for a injury suffered at work due to the employer’s negligence. which resulted in further complications. Pyne v Wilkenfield: where [P] was wearing a neck brace from her primary injury suffered as a result of [D’s] negligent act. the defence cannot be relied upon to protect [D] from the subsequent injury: Adelaide Chemical v Carlyle. CALCULUS OF NEGLECT [Test 1]: Magnitude of Risk: (1) Probability of Harm: [D] need only guard against reasonable probabilities. 2) Subsequent negligent conduct of a 3rd party unless the third party’s negligence was reasonably foreseeable: Chapman v Hearse: where a doctor attending to a car accident victim was struck by a car driven negligently by a third party. yes. D was insane. because had the officer known. If there are multiple explanations. common sense way. is relevant: Wyong Shire Council v Shirt – waterskiing signs. DAMAGE While [P] has suffered damage in the form of [APPLY]. Rogers v Whitaker: A doctor must give warnings of risk if a patient attaches significance to it (1/14000 chance of damage to eye). Was the subsequent even a completely new act not related to the initial injury. Held that [D’s] negligent act was the reason for wearing the neck brace. if there is a risk to the eyes. no. Bolton v Stone – cricket fence. the commissioner had materially increased the risk of serious injury. Risk is to be assessed at the time of incident. [NOTE: unless medical treatment was inexcusably bad: Mahoneyv Kruschich] [In this case. eg driving car. e. whichever explanation is chose: GIO v Best: where three possible causes where identified. traffic rules. [P] will argue that but for [APPLY FACTS: CASE] he would not have suffered [his/her] injuries. So where the initial injury contributed to the second injury – use this case. In this case. [Test 4]: Customary or Statutory Standards The fact that [P] was not adhering to the standards of careful conduct doesn’t mean [he/she] is acting unreasonably.Tentative Conclusion As it would appear that [APPLY] it would be [likely/unlikely] that [D] would owe [P] a duty of care. even though other doctors adopt a different practice. A foreseeable risk is one which is not farfetched or fanciful: Wagon Mound (No. Court must balance the risk against the end to be achieved. If this is correct. [Element 2]: Breach of Standard of Care [D] will have breached the standard of care if a reasonable person in [his/her] position would have reasonably foreseen that their conduct involved risk of injury to [P] or a class of persons including [P] and whether [D’s] response to the risk was reasonable: Wyong Shire Council v Shirt. Tentative Conclusion: It would appear that [D] [has/has not] breached the duty of care by [APPLY]. held that by failing to warn him of the threat made against the unit. he would have taken precautionary measures. [P] will argue that as the [subsequent injury] to [P] is a predictable consequence of [D’s] negligence [and was likely to occur even without the intervening act]. Bolam v Frierm Barnet Hospital: doctor is not negligent if he acts in accordance with a practice accepted at that time as proper by a reasonable body of medical opinion. section ??? PUT IN EDWINA) Standard of care expected of a reasonable man requires him to take into account the possibility of inadvertent and negligent conduct by others: McLean v Tedman. not far-fetched or fanciful: Wagon Mound (No 2). [Element 1]: Standard of care owed and subjective elements which may modify the standard: REASONABLE PERSON TEST considers the following: The risk of injury must have been foreseeable. then [P] must succeed. Doesn’t matter what common practice in trade/industry is (except doctors . so D’s standard was that of a reasonable learner.g. for [P] to discharge the onus of proof. the more precautions must be taken: Paris v Stepney Borough Council: an employer must take more precautions for an employee with one eye than others with two eyes. [P’s] peculiar knowledge and consensual relationship with [D]: the standard of care changes with the relationship between [P] and [D]. Gets damage from initial injury but not subsequent. it is necessary to determine whether on the balance of probabilities [D] has in fact caused [his/her] damage: Barnett v Chelsea & Kensington Hospital Management Committee. his conduct should be judged based on his ability to foresee (What is the standard of a reasonable 12yr old?): McHale v Watson. therefore able to recover for the subsequent event as well. which caused her to trip and suffer further injury. it is necessary to determine whether [P] has suffered damage that was caused by [D] and that damage was not too remote. 3 . depends on what they know you drank – see ‘volenti’. [he/she] must show one of the causes is more probably the cause: The court may find one explanation is more probable than any others: TNT Management v Brooks: where two trucks crashed and the wife of a killed driver sued.Bolam): Mercer v Comm’r Road Transport. [APPLY] (2) (1) (2) Mental State: insanity is not a civil defence. not fantastic probabilities: Bolton v Stone. Patterson v McGinlay: utility does not extinguish the standard of care. Relationship is modified by P’s knowledge: Cook v Cook: normally. suffered amnesia and the other passengers evidence was inconclusive as to the cause. onus shifts to [D] to show that they were unreasonable/impractical in the circumstances: Romeo v NTCC. The addiction wasn’t caused by the original accident caused by D’s neg. Watt v Herfordshire SC: standard of care modified by utility of task undertaken (saving lives justifies considerable risk). Age: where there is a minor. However if alcohol was considered the only method to relieve the pain then it isn’t a NAI. it was not caused by being at the hospital. held that it was more probable that the other truck was on the wrong side of the road. that the standard of care will amount to a virtual guarantee of safety. feared co-workers): Adamson v Motor Insurance Trust. (now over-turned by statutory provision. held the employer was liable for the further complications because it is (3) (a) (b) (c) (d) (4) • Skill – Philips v William Whitely: [D] must exercise the level of skill they claim to have. Statutory standards (not action for breach of stat duty) are evidence of negligence just highly persuasive: Tucker v McCann. Keen & Nettlefolds: [D] will be judged according to a higher degree of skill when he actually possesses that skill level. who was injured by [D’s] negligent driving. imbued with policy considerations: March v Stramare.

repetition. Causation/ causal link btw P nglt conduct & P’s Damage 3. Tentative Conclusion As [P’s] damage [would/would not] be reasonably foreseeable it would be [likely/unlikely] that the damage would be considered not too remote. Exclusion/Disclaimer Clauses: Objective test of determining whether it is a contract case (objective) or a torts case involving a subjective question of what P actually knew and consented to (Macleay v Moor – Wobbley’s World/Rides. Employer/Employee cases: If the employer provides an unsafe system of work. sued for not controlling plague Held: Disease contracted from rat bite or food poisoning would be Reasonably Foreseeable. The tortfeasor takes his victim as he finds him. or contractor look also at vicarious liability and non-delegable duties. Kind of damage suffered: defining it narrowly or widely impacts on the foreseeability of it. and preoccupation is not contributory negligence (Comm’r of Rlwys v Ruprecht – Manager/Lost legs. the court will take this into account (McLean v Tedman – Garbage Men). P’s injury must be within the area of risk created by P’s negligence Volenti (Voluntary Assumption of Risk) A volunteer cannot complain of injury Onus is on D to Show that P: (Roggenkamp v Bennett – P& D on Drunk bing/Driving) 1. Hostility is not a requirement. the chain will be broken: Yates v Jones: where [P] who was recovering in hospital became addicted to drugs and sued for the addiction as a result of being in hospital. NOTE: If [D] is an employee. Provided that the type of harm is foreseeable. ____________________________________________________________ • • Can accept the inherent risk of activity but not of negligently performed duties outside scope of activity (Roots v Skelton – waterskier/negligent driver. Negligence on P must have contributed to the injury (Jones v Livox Quarries – lunch truck/on back of pickup) Last Opportunity Rule: If the D had the last chance to avoid the accident then the P would succeed (Davies v Mann – Road/Donkey hit) All or nothing concept. hostility can make an otherwise permitted contact a battery. Not sufficient that P ought to know of risk. the harder it is to foresee. then D may succeed (March v Stramare – fruit truck/drunk driver) Onus is on D to prove that P fell short of the standard (Davies v Swan Motor Company) Agony of the Moment/Sudden Emergency: There is a balance btw the degree of inconvenience and the risk taken to escape it (Caterson v Comm’r for Railways – child on platform/father jumps). a) Compensatory Damages for actual damage suffered b) Exemplary Damages to punish D if shows a conscious disregard for P’s rights c) Aggravated Damages for hurt feelings. 2. came about through [intention/recklessness/negligence]. If this is correct. intentional. DEFENCES Having found that P’s injuries were the result of D’s negligence and that they were not too remote it is necessary to determine whether a reduction of damages would be allowed to reflect the % of blame apportioned to P or whether D can rely on the defense (Law Reform Act 1951 Qld). P’s negligence need only contribute to the harm not the accident (Froom v Butcher – Not using the Seat Belt/25%) no seat belt/Statutory automatic 15%. Once [P] has discharged the proof of direct interference. Pl suffered guilt neurosis. • When P is aware of risk and consents to risk a Volenti claim by the D will succeed (Smith v Baker & Sons – crane rock/injury. it is necessary to determine whether [P] has any defences available. [P] must prove he would have used the feature had [D] provided it McLean v Tedman: If [P] proves there is causation then [D] must disprove it. [P’s] [damage] would be reasonably foreseeable as it is not far fetched or fanciful that [he/she] would suffer [damage] as a result of [D’s] actions: Wagon Mound No 2. Sports/Spectators: Must take reasonable care for safety of all specatators. Intentional. Havenaar v Havenaar: where [P] became an alcoholic after an accident and sued for it. If you create the danger then you can’t criticize the response of someone else to the danger (Shelley v Szelley – Blown Tire/Goofy Face). which results in his further injury. TRESPASS TO THE PERSON Trespass to the person is the wrongful. Court held Pl couldn’t recover for mental illness as it resulted from her own actions (Policy considerations) Dissenting judgment reasoned that Pl would have recovered damages if she took action for Nervous Shock rather than guilt neurosis. and it is irrelevant that [D] did not mean to hurt [P]. held that [P’s] free choice broke the causal connection. If this is correct. Contributory Negligence: Where P’s own negligent conduct has contributed to the injury suffered D can argue that P didn’t take reasonable steps to protect himself from the injury (Davies v Swan Motor Company – Garbo on back/Hit by bus/explicit instructions). informed and voluntary subsequent conduct by [P]. Inattention due to familiarity.predictable that negligent medical treatment will be given. the extent of harm and the precise manner in which it occurred is irrelevant: Hughes v Lord Advocate. ICI v Shatwell – 2 bros. however. In this case. which led to the contact. Tentative Conclusion It would be likely that [P] would establish that [his/her] injuries were caused by [D]. boy knocked on head resulting in paralysis because of a pre-existing physical condition. because the reason it had to be sought in the first place was because of [D’s] original negligence. but addiction was not from medication. Provided the type of harm is foreseeable. Egg Shell Skull Rule: If [P] has shown that the damage is reasonably foreseeable. [P] must show the damage suffered is not too remote in law. Fault 1. aggravated or exemplary damages. Voluntarily accepted the risk of that danger. The [damage] suffered by [P] must have been of such kind that the reasonable man should have foreseen: Wagon Mound No 1. free and voluntary to legal risk as well as physical risk (Nettleship v Weston – learner/driver). the extent of that harm and the precise manner in which it occurred is irrelevant: Hughes v Lord Advocate. [D] does not have to come into actual contact with [P]: Scott v Shepherd (fireworks) Direct = impact followed so closely it is considered part of the act: Reynolds v Clarke (thrown log/hit head) [D’s] act. Raniery v Raniery – inexperienced driver) Consent must be real. BATTERY TEMPLATE [D] will be liable for battery if [P] can show direct. minor injuries. the more qualifications on kind of harm. unless there is no other way to relieve pain. Reckless or Negligent: [D]. Volenti cannot be used against a rescuer bc they haven’t volunteered to accept the legal risk of injury. The onus then shifts to [D] to raise a defence. D liable for paralysis. then there is no causation./quarry/blew themselves up) 4 . Birch v Thomas – Octopus Ride) Damages/Remedies Might be affected by whether P mitigated their loss (Apportionment of Fault Law Reform Act). thus its Reasonably Foreseeable Richards v State of Victoria: Teacher failed to stop schoolyard fight. = gross negligence Bennet v Minister for Community of Welfare: where [D] failed his duty to seek legal advice for [P] who was injured in a state ward. but disease contracted from rat wee isn’t Reasonably Foreseeable. it is necessary to determine whether [P’s] injuries were not too remote. [Test 1] – Is the damage of such a kind that the reasonable man should have foreseen: Wagon Mound No 1. rather from illicit drugs bought from a dealer. McNamara v Duncan. direct and intentional interference with [P’s] physical integrity: McHale v Watson. and subsequent to his release [P] received incorrect and negligent legal advice about his right to compensation for his injury from a third party. REMOTENESS In order to recover. and If it was reasonably foreseeable: a risk is reasonably foreseeable if it would occur to the mind of a reasonable man in D’s position and he would not brush it aside as far-fetched or fanciful: Wagon Mound No 2. If there is actual harm to [P] then remedies include compensatory. Onus: P must prove direct interference. as such [P] does not need to show damage and need only show the fact of trespass. & 3. Will also will be relevant if P had the last chance to avoid the accident. Did P believe that what he did was required of him? Irrelevant whether he knew or ought to have known (Comm’r for Rlwys v Halley – trainee/shunting yard). indignity humiliation etc. but if P goes outside that reasonable care then Volenti can be used (Australian Racing Drivers Club v Metcalf ) Rescue Cases: It is RF that a person will come to the rescue. by [facts of act] has made contact with [P]: Innes v Wylie. Moral obligation means they are not free to choose (Haynes v G Harwood & Son). held that voluntary consumption of alcohol breaks the causal connection. developed a psychological disorder partly due to overprotective parents Held: Parents reacting that way is Reasonably Foreseeable & his condition is attributable to their reaction. Rowe v McCartney Pl was driver in crash where passenger was paralysed. Duty to take care of yourself and not rely on everyone obeying laws (Sibley v Kais – pulling out/hit) IN SUM: 1. An injunction is also obtainable if the battery is feared as being on going. reckless or negligent touching of [his/her] person by [D] without consent or lawful justification: Innes v Wylie (doorway obstruction not positive/voluntary) Protected interest = P’s physical integrity Battery is actionable per se. Does not apply to psychiatric illness in Aus (Rowe v McCartney) CASE DETAILS: Tremain v Pike Facts: Employee got a rare disease from rat wee. Negligent medical treatment is only an intervening act if it is inexcusably bad (gross). must prove actual knowledge (Scanlon v American Cigarette Co – lung cancer). he claimed it was to relieve pain. 3) If there is free. held that the third party’s negligent advice was not an intervening cause. [NOTE]: Requirement for positive evidence (the onus of proving causation rests very firmly on [P]) Quigley v C’th: If its improbable that the [P] would have used the safety feature that [D] was negligent in failing to provide. Fully appreciated that danger. [ELEMENTS]: Direct. Stephenson v Waite Tileman Ltd: P developed ‘compensation neurosis’ as a result of injury because of a pre-existing psychiatric condition – vulnerable personality. P was at fault/negligent 2. While the contact was a direct result of [D’s] act. [D] bares the evidentiary onus of showing that the suggested system of work wasn’t reasonable practicable because [P] would not have used it even if it was provided & he wouldn’t be able to enforce compliance. Perceived the existence of danger 2. then [D] is liable for any consequential damage which results because of [P’s] peculiarities: Smith v Leech Brain. Must consider two issues: Nader v UTA Facts: Boy fell off bus.

defence does not apply where the patient has given a certificate of refusal. without lawful justification. 4. [D] is liable for assault if [his/her] intentional or negligent act or threat directly places in [P] a reasonable apprehension of an imminent physical interference to [his/her] person. evidenced by [apply facts]. Other defences open to [D] are emergency and inevitable accident and need to be applied as required. but merely fear in knowledge and expectation that the action threatened will take place. [D’s] contact with [P] was required by medical necessity.g. and as such [D] [has a/ has no] defence: McNamara v Duncan. [P] can seek an injunction. a lack of intent by [D] to carry out the threat is irrelevant: Hall v Fonceca. however beneficial. In some cases exemplary are awarded for unconscionable conduct which requires punishment. Future Time: If the threat is a suggestion of assault at a future time. As such [D] [does/does] not have a defence. but something intentional and outside the rules. It should be noted that provocation can reduce damages. shooting a bullet. 2. provocation is not available to reduce compensatory damages.No liability unless D intended impact or cause negligently (Cole v Turner). then it is assault because [P the police officer] is lawfully entitled to do what the condition prohibits: Police v Greaves. D’s motive to commit act. justified or excused by law: Marion’s Case Consent may also be implied by conduct: All physical contact is battery unless it is conduct impliedly expected in everyday life. reckless or negligent act without D’s legal justification. but is available to reduce exemplary damages. and as such [D] [has a/ has no] defence: McNamara v Duncan. 5 . [P] can seek an injunction. As such we apply a subjective test as to what [P] feels. crowds etc. then the threat will amount to assault: Zanker v Vartzokas. jostling on buses. SPECIAL CASES: (Apply if necessary) Conditional threat: [ELEMENT 4]: Defences: (Choose one option) 1. 4. and [was/was not] also proportional to the threat from [P]. [D’s] contact [was/was not] provoked and as such he [does/does] not have a defence: Fontin v Katapodis.Casino worker did not display intent to harm) [P’s] reckless or negligent conduct may satisfy this. 4. It should be noted that provocation can reduce damages. As [P] is apprehensive. Kaye v Robertson – Accepted possibility of flashlight). FALSE IMPRISONMENT TEMPLATE Wrongful total restraint of P’s freedom of mobility directly caused by D’s intentional. As such [D] [does/does] not have a defence. 5. For suffering actual damage. [Element 3]: Ability and Apprehension of battery: [Ds] [apply facts] fulfils the requirement of an actual or apparent present ability to carry out the threat: Brady v Schatzel (P knew D owned a gun) Words Alone Clause: (use if required)        Every surgical procedure is an assault. Conduct: [D] behaved in a threatening manner by [apply facts]. The onus is on D to prove Pl consented to contact. [Element 2]: Intention The necessary intention to establish an assault by [D] is an intention to cause apprehension in [P] that physical contact is about to occur: (Rixon v Star City. Fontin v Katapodis. 3.g. a certain amount of contact is consented to. so [P] must prove he did not consent to the contact. [D] [can/can not] show that [P] consented to the contact by [apply facts] Collins v Wilcock. However. by [apply facts] issued a threat to [P]. CASES DETAILS:   Innes v Wylie: Police in doorway no physical contact: no battery Marion’s case . 3. As well as aggravated or exemplary damages for any outrage to [P’s] feelings. or the person of someone under [his/her] control. If the condition requires a police officer to stop in performing a lawful duty. Consent is a defence to battery. stick. Knowledge of P (asleep) or D (Law v Visser – drove over D thought was object) not a requirement. and while every surgical procedure is battery unless it is authorised. As well as aggravated damages where there is loss of dignity or humiliation Watts v Leitch.  Onus of Proof Freeman v Home (UK): absence of consent is an element or tort. 5.Parent consent to sterilisation of retarded daughter. False imprisonment is actionable per se and as such [P] does not need to show damage only trespass: (Williams v Milotin) 3. [D’s] means to carry the threat into actions merely have to be apparent in [P’s] eyes: Stephens v Myers. also the presence of hostility may affect the amount of damages awarded. e. Contact need not be forceable (Forde v Skinner – Cutting hair. [D’s] contact [was/was not] in self-defence Fontin v Katapodis. and [was/was not] also proportional to the threat from [P]: Fontin v Katapodis. Fontin v Katapodis. unless it is authorised (consented to by [P]). Traditional view of Court Marions Case: McHugh J. Note: Mistake is not a defence. (threat from telephone) [P] must be aware of the assault by [D] as this is the very gist of the action. Additional elements that may be required based on facts: ELEMENT: Remedies (Choose elements required and join with facts) OPTIONS:   If the threat is conditional. and there is no way for [P] to escape because [he/she] is at the mercy of [D] until the threat can be carried out. not passive (Innes v Wylie). As there were no actual damages. conduct or combine Verbal: [D]. 3. Court asked who has right to consent to sterilisation? The Court answered it by finding the sterilisation was non-consensual as Pl did not consent to the contact herself. As such [D] [does/does] not have a defence. Must be offensive outside accepted usages & accidental contact of daily life (Collins v Wilcock). it is not assault if the accompanying condition renders the threat harmless: Tuber Ville v Savage. The conduct must be offensive outside the accepted usages and accidental contacts of daily life: Collins v Wilcock The [D’s] motive to commit the act however beneficent does not affect its trespassory character’: Murray v McMurchy: [D] can’t rely on [P] consenting to contact if contacts [P]. 2. Onus: [P] need only prove direct threat to his/her person caused by [D’s] act. it [does/does not] constitute assault as the words [did/did not] cause fear of immediate violence in [P]: Barton v Armstrong.  An unwelcome kiss  Snatching a book off another  Doctor giving treatment without consent  Using a 3rd party’s body to touch another ASSAULT TEMPLATE 1. [D] [can/can not] show that [P] consented to the assault by [apply facts]. reckless or negligent) [Element 1]: Direct threat: Select either verbal. compensatory damages are available. Unwanted contact not necessarily battery. If there fear of ongoing battery. The question then becomes was [apply facts] consented to? From the facts of the case this [was/was not] consented to and as such [D] [does/does] not have a defence. will constitute battery: Giumelli v Johnston. 5. Physical Interference Must be active. however it can make otherwise permitted contact a battery (Rixon v Star City). consent doesn’t extend to contact that [D] knew or ought to have known would have caused injury to [P]: Giumelli v Johnston (AFL) Accidental poke in eye in NRL not battery: Hilton v Wallace A touch to gain attention is acceptable. As such [D] [does/does] not have a defence. and [was/was not] also proportional to the threat from [P]. R v Cotesworth – spitting in face. [P] can expect to receive nominal damages. does not affect its trespassory character (Murray v McMurchy – extra surgical procedure). 2. 1. 5. If there fear of ongoing assault. [ELEMENT 5]: The Remedies (Choose elements required and join with facts) OPTIONS: 1. [D] has the BOP to prove [P’s] consent ELEMENT: Defences: (Choose one option) Some examples of battery:  Punching another  Shining a light in someone’s eyes  Spraying water on another  Using a weapon/implement to strike another e. causing injury. As there were no actual damages. [P] need not be afraid. [D’s] conduct [was/was not] in self-defence of others Howard v Wing. the burden then shifts to the [D] to show that the act was involuntary or they were not at fault (neither intentional. However. [P] can expect to receive nominal damages. [D’s] conduct [was/was not] in self-defence McClelland v Symonss. in a manner outside the rules of game: McNamara v Duncan (AFL) Even if there is consent to some contact outside the rules of the game. 2. Test: Did the physical contact go beyond acceptable standards of conduct? McNamara v Duncan: (1979) – footballer case • • Even as [D’s] threat is purely verbal. In playing contact sport. Hostility is not a requirement. necessity excuses this: Marion’s Case. 4. For suffering actual damage = compensatory damages are available. [D’s] means to carry the threat into actions merely have to be apparent in the [P’s] eyes: Stephens v Myers. Irrelevant if D didn’t intend to hurt P (Duncan v Macnamera – AFL). this is sufficient. a physical restraint is not: Rawlings v Till 6.

a single flight over land ≠ trespass: Baron Bernstein v Skyviews. gates. 5. But note that unless consented to. is unlikely to carry weight today because the sanctity of contract doesn’t prevail over principles of liberty & freedom: Balmain New Ferry v Robertson: a. held to be F. Onus: On P to show direct interference. R v Macquarie: – having to swim to escape is seriously inconvenient. is sufficient for psychological restraint. The argument that by entering into a contract [P] consented to [D] imposing reasonable conditions of restraint. As well as aggravated damages where there is loss of dignity or humiliation Watts v Leitch. and as such [D] is not liable for false imprisonment. Onus is on P to prove direct interference (deprivation of liberty). guards insisted. signs: Halliday v Nevill Person must be bona fide seeking: Bryne v Cinema. The argument that [P] gave consent through the course of their employment is conditional on what was agreed to fall within the course of employment: Herd v Weardale. Rinsale v ABC Limited License Right to enter limited in scope. (Persons who are authorized to detain individuals include hospital staff. Bird v Jones: (failed because barrier on bridge was a mere obstruction. A guard was outside the closed door and intended to stop him if he attempted to leave. parents. provided they don’t breach the rules of the aviation authority. 1. Test 2: Reasonable means of escape: (Use whole clause) [P] has no reasonable means of escape without risk of risk of injury (Burton v Davies) or serious inconvenience (R v Macquarie). 2. Meering v Graham-White Aviation: [P] asked to wait in room for an interview. does not matter whether it actually does interfere with use/enjoyment: LJP Investments v Howard Chia Mere apprehension of interference is sufficient: Graham v KD Morris Psychological:  In this instance. Herd v Weardale: Coal miners: if [P] consented to it through the course of his employment. [Test 1]: Direct Interference: (Add items below if needed for direct) • • Not limited to entry by a person – can be projecting things over or in land: Davis v Bennison Includes failure or refusal to leave the land. having regard to wind. or authorized by legislation. ELEMENT 1: RESTRAINT Test 1: Actual restraint: (Choose either physical or psychological) Physical: 3. Shifts to D to disprove fault. when Soo attempted to protest. 6. Symes v Mahon: – although not physically restrained. Lincoln Hunt • • Voluntary – it is no trespass if you were pushed onto the land: Smith v Stone Involuntary – A person who had an epileptic fit and fell off a railway platform onto the train lines was held not to have trespassed on the lines: Public Transport Commission of NSW v Perry ELEMENT 2: Direct Interference: (If not direct go to nuisance) OPTIONS: Does not extend to ‘robbers and nosey TV reporters”: Lincoln Hunt. because there is no private ownership over the minerals in the land. Rights in minerals are separate to the fee simple in the land. 4.   Coercion (Symes v Mahon) along with fear of public humiliation (Myer Stores v Soo). weather and all the circumstances of the case. [P] can seek an injunction. he cannot claim FI. the will of [P] was subverted by [D’s] psychological pressure. (1) Bulli Coal Mining Co v Osborne: Tunnelling under P’s land for the extraction of coal from under 3. Cowell v Corrective Services Commission and as such is not a defence. as [he/she] was [use facts]. but real purpose was not said. [P] may have a cause of action against [D] for trespass to land if [D’s] intentional.g. ELEMENT 1: Voluntary [D’s] act of [apply facts] was an [intentional/voluntary/negligent] act: Public Transport NSW v Perry. [D’s] claim that it was unintentional or without negligence does not cover mistake as to the right to imprison P. Therefore. not total rest) Burton v Davies: dangerous to jump from a moving car.I Myer Stores v Soo: Soo mistaken for a shoplifter and surrounded by security guards who ‘requested’ that Soo accompany them to the office for an interview. As personal freedom is so important it should be actionable per se even without knowledge: Murray v Minister of Defence CASE DETAILS:        2. D held liable for pushing dirt on the P’s land with a bulldozer: Watson v Cowen D held liable in trespass for releasing cattle onto the P’s land: Yakamia Dairy Pty Ltd v Wood [D] may commit trespass by directly causing some object (parked car) to make contact with the land unpermitted by [P]:Mayfair v Pears An advertising sign: Kelsen v Imperial Tobacco Co Ltd: Piping: Lawlor v Johnston: Tree branches: Gazzard v Hutchesson: • • • • • • • •   In this instance. [P] is [apply facts]. regardless of [P] knowing. In some cases exemplary are awarded for unconscionable conduct which requires punishment (exemplary b/c court is making an example of the D) It should be noted that an apology reduces damages: Walter v Alltools • Continues until rectified. 2. and as such she [has/has not] consented and [D] [is/is not] liable. you need to do it in a reasonable way. What happens if there are frequent flights over land: Damage by Aircraft Act 1952 (NSW): no action lies in trespass or nuisance. Mining Acts: Latin maxim does not apply. [P’s] [apply facts] [does/does not] fall within what was agreed. it becomes trespass: Konskier v Goodman 1. Entry unrelated to the right is trespass of premises: Barker v R (furniture stealing) Where licence is conditional.Onus: then shifts to [D] to prove it was neither intentional nor negligent. Ie you can’t do it mid way of an airline flight. Protected interest = Right to exclusive possession. the question arises. TRESPASS TO LAND TEMPLATE [IF INDIRECT GO TO NUISANCE] [Test 2]: Actual interference: As long as it might interfere with what you might want to do. just direct interference. 6 . by fences. what did the parties agree was within the course of employment. [P’s] actual restraint is more than mere obstruction of movement in a particular direction. & breach the conditions. If you revoke consent. As trespass actionable per se [P] does not need to prove damage. locks. [P’s] submission to go to Adelaide was not free and voluntary. The argument by [D] that there was legal justification is supported by statutory authorisation that says [apply facts]. pouring water or other fluids under the P’s property constitutes trespass. not reasonable escape. [P’s] knowledge of this restraint is not necessary: Meering v Graham-White Aviation. as [P] is confined within boundaries set by D: Bird v Jones. As the tort is ongoing. schoolteachers etc) [D’s] claim that there was actually reasonable means of escape [is/is] not supported by the [apply facts] and as such. [P] feels there is no alternative but to submit to [D’s] restraint. held that it was total restraint because Soo couldn’t refuse for fear of public embarrassment. The remedies open to [P] are damages and or an injunction. extracting minerals. [D] must disprove fault. ELEMENT 3: REMEDIES (Chose elements required and join together with facts) ELEMENT 4: Without Consent: The burden of proof is on [D] to show consent: Implied Licence i) ii) iii) iv) i) ii) An implied licence exists to enter land for the purpose of lawful communication or arresting the occupier: Halliday v Nevill This licence exists until it is revoked by the owner of the land – e. [P] is [apply facts]. Where there is no damage = nominal damages. reckless or negligent act directly interferes with [P’s] exclusive possession of land without consent or lawful justification. 5. ELEMENT 3 Act done in respect of use and enjoyment of land: [Test 2]: How far does land extend: i) Legal Maxim: ‘rights in the soil extend to heaven and to hell’ ELEMENT 2: DEFENCES Test 1: Did P give consent: (Choose one option) ii) iii) iv) Rights in land only extend to what is reasonably necessary for the enjoyment of the land. For suffering the loss of freedom = compensatory damages are available. 4. [P] can seek an injunction or damages if [D] is liable. [D] [is/is not] liable for false imprisonment.

Plenty v Dillon: father expressly revoked consent of the police. Contracts for service = non-employment relationship with an independent contractor: Therefore not liable. and then use reasonable force to eject: Cowell v Rosehill Racecouse        Davis v Bennison: cat on neighbours garage. • Applies to all torts • • Strict liability Nothing that an employer can do to prevent being subject to vicarious liability. The person does not have the actions attributed to them. [P] were not the registered owners of the grove. but a duty “to see that care is taken.   1) 2) 3) 4) 5) Nominal: don’t need to prove damage. NON-DELEGABLE DUTY Primary claim – an independent cause of action • Applies to just the tort of negligence • ELEMENT 5: Who Can Sue? Trespass protects [P’s] actual exclusive possession or occupation of land. rd General Points For Vicarious Liability  Non delegable duty is used to justify the imposition of liability on one person for the negligence of another to whom the former has entrusted (or delegated) the performance of some task on their behalf. Employed man to mow lawn & maintained tress garden & rockeries.Revocation of implied licence i) ii) Where the license is revoked. The injured party must show a meaningful connection between the employment and the tort. As vicarious liability is strict liability [P] will then be able to recover damages from [employer]. duty cannot be delegated though performance of the duty can be: Elliot v Bickerstaff. Held: entitled to sue b/c trespass protects possession. • Must prove fault – Lepore. summons could have been sent by post held: trespass. Court will ask if the employee is part of the overall business organisation (Albrighton v Royal Prince Alfred Hospital – Surgeon) Test 4: Multi-facet test: There is no single test which will always be applicable or relevant in each case. employers are not liable for torts committed by independent contractors (Stevens v Brodribb Sawmilling). or if it was reasonable to believe that the offence would be repeated: Konskier v Goodman   Self-Help : If entitled to immediate possession. 3. took shot neighbour in between sued for trespass Delaney v TP Smith Ltd: P took possession of house under a lease that was legally ineffective and which did not give him any right to exclusive possession. Open and unobstructed. The Lawful Authority to command is the significant feature rather than the actual exercise of control through specific commands (Zuijis v Wirth Brothers) Test 2: Modified Control Test: 3 conditions should exist before a Contract of Service can apply. Parents are not held liable for the torts of their children unless they employ them.  • Under the law of negligence. The right to control o Profit a prende – a right to take . rather they take responsibility for the actions. Contract For Services (Independant Contractor). LJP Investments v Howard Chia Investments: D carrying out commercial development and requested scaffolding to go up on neighbours land – injunction granted restraining them Lincoln Hunt : invaded the place with dissatisfied customers with rolling camera held: trespass Newington v Windeye: “the grove” def took down fence and put up low brick wall with gate giving access to the grove. and once it is. Vicarious liability is always strict liability. ELEMENT 1: Commission of a tort: [D] committed the tort of [APPLY] by [APPLY].  The capacity of the employer to absorb the cost of liability as part of the enterprise – insurance. as long as act like have possession – exclusive possession . and must be distinguished from personal liability. it is trespass: Plenty v Dillon License can be withdrawn. Smith v Stone – the D did not commit trespass as he was thrown by 3 parties onto the land. and time. Actionable per se.” VICARIOUS LIABILITY TEMPLATE Employers are vicariously liable for the torts of their employees which are committed in the course of their employment. 2. Abatement of nuisance by self-help: can trespass on land to stop a nuisance in the case of an emergency: Jones v Williams Statutory authority to enter eg Hen Quotas Act (Qld). Test 3: Integration and Organization Test: If the employee is sufficiently integrated into the organisation of the company and that worker’s role is integral to the business rather than ancillary he would be an employee (Stevenson. excluded others: Newington v Windeyer Defacto possession is enough. how. Rich v Samin • Not a duty to take reasonable care. Even though there may be no fault on the employer liability arises bc of the special relationship btw employee and employer. (Look to non-delegable duties). the latter wins: Delaney v TP Smith Ltd    ELEMENT 6: Defences 1) 2) 3) 4) Lawful arrest/Warrant to enter the house.  The employer gets the benefit of the employee to advance their own interests so it is just that they should bear the losses incurred by those in the enterprise.sufficient: Mason v Clarke: • • Right to exclusive possession: Concrete Constructions v BLF If there is a dispute between someone in possession as a matter of fact and someone who has a legal right to exclusive possession. and there is subsequent entry. allow a reasonable time to leave. On many occasions they told uninvited visitors that they were trespassing. Important to distinguish btw Contract of Service (Employee) vs. D forcibly evicted P. 7 .  It acts as a deterrent to encourage the employer to prevent accidents. the statutory authority to trespass must be through clear and unambiguous language – general language is insufficient: Coco v R VICARIOUS LIABILITY & NON DELEGABLE DUTY General Points for Vicarious liability: Necessity: requires public utility (Winfield v Jolowicz) or to save a life (Sharrin v Haggerty)   ELEMENT 7: Remedies Damages: Vicarious liability is where one person is held liable for a tort committed by another person. was whether (a) person was employed to do work for the employer (Hewitt v Bonvin). however Stevens v Brodribb Sawmilling Co Ltd (Logging/Fellas/Sniggas) re-established control as the main emphasis. even if they have wrongfully taken possession of it. then you are able to use reasonable force to eject the trespasser. but not absolute liability. Other provisions of the agreement must not be inconsistent with contract of service (Ready Mix Concrete v Minister for Pensions and National Insurance). Tenants included: (Rodriguez v Ufton: action v landlord) No need to prove legal or equitable title to the land (Kelsen v Imperial Tobacco) anyone who in fact has exclusive possession of property is treated as having right to possession of that property. Test 1: Control Test: Factors to Determine whether person was employee. Employee must agree to work for employer in return for pay. Interest short of proprietary VICARIOUS LIABILITY Secondary/derivative claim: not an independent cause of action. It is not an independent course of action. no notice prohibiting entry. no gate or lock. where. Though they are liable for the torts of their employees. Employee agrees to be subject to the employer in matters of what should be done. 1. not ownership. might be different if they were coming to arrest Public Transport Commission of NSW v Perry: A person who had an epileptic fit and fell off a railway platform onto the train lines was held not to have trespassed on the lines. The same applies to a trespassing object or material – provided you don’t use more than reasonable force (Cowell v Rosehill Racecourse) CASES Why have vicarious liability?  The desirability of providing a deep pocketed and solvent D. Parents are NOT vicariously liable for the actions of their children (McHale v Watson). but could still maintain action in trespass b/c had engaged in many acts of ownership over a period of 50 yrs. Held that D’s legal right to exclusive possession overrode the fact of the P’s possession. • • • • Do not have to be actual owner of land – as long as you exercise proprietary rights over the land. Graham v KD Morris: injunction granted against a crane jib Halliday v Nevil: 2 police officers walked up driveway and arrested disqualified driver held: arrest was lawful b/c of implied license to enter for lawful communication. compensatory damages are available: Hogan v Wright Exemplary – punish and deter (Lincoln Hunt v Willesee) Injunctions: for continuing and repeating offences. Compensatory . ELEMENT 2 : An employer/employee relationship Contracts of service = employment relationship with an employee: liability created. a) However.Where the damage is the natural consequence of the trespass. Jordon & Harrison v MacDonald & Evans). Entitled to nominal damages. (b) person engaged was subject to the control of the employer (Mersey Docks & Harbour Board v Coggins & Griffith). means.

v Macdonald: Contract of service: Man is employed as part of business & his work is an integral part of business contract for services: His work. wears a uniform. Phoenix Society v Cavanagh – Bus driver/Drunk) Test 3: Frolic Doctrine: If an employee takes an opportunity during employment to use time or resources for personal purposes the employer is not liable (Storey v Ashton – 25Km Detour/Aunt). Gratuitous Service (Brooke v Bool) ELEMENT 3: Was the employee acting in his course of employment? All acts done within the scope of employment or reasonably incidental to their employment (Limpus v London General Omnibus – DD Bus racing). Armed Forces (Cth v Quince). whether the employers assumed all responsibility. Has moved away from Rylands v Fletcher. NON-DELEGABLE DUTY Land Occupiers • • • • Safeway v Zaluzna: Land occupiers owe a duty to everyone to take Reasonable Care to prevent foreseeable injury to customers who come onto the land. The only exception is the case of consultants or anaesthetists selected & employed by the patient himself. NSW v Lapore: HC held that non-delegable duties do not impose strict liability.      Chaplin v Dunstan If a driver detours to get a drink & on this way crashes then the employer is Vicariously Liable as it is a reasonable detour. employer not Vicariously Liable. Well Recognised Categories: Hospital Staff (Roe v Minister of Health). Duty to trespassers etc is ↓ Calin v Greater Union Perhaps a special duty is owed to contractual entrants to maintain the premises to a standard that is as safe as reasonably possible. Not liable if employee on ‘frolic of their own’ • • Albrighton v RPA Regardless of the minimal control hospital’s have over Dr’s. If [Employee] not classed as employee is there a non-delegable duty? For a non-delegable duty to arise there must exist a protective relationship of responsibility or control on the part of [D] and vulnerability or reliance on the part of [P]. If it is argued that the employee was on a frolic both the purpose and extent of the deviation must be considered (Chaplin v Dunstan – break 4 drink/entitled). 9-5). What is essential is whether that prohibition limits the scope or merely regulates (Liable for Regulate) the way in Employer to Employees Strict Liability Strict Liability is that you don’t have to prove fault. Hollis v Vabu: D a parcel and document carrier who employs vehicle and bike couriers. obligation to work (obligation of service i. Contrary to that Beard v London General Omnibus – ticketer/driving bus. This case has since been absorbed by the general law of negligence. Bugge v Brown Even if employee performs an authorised act in an unauthorised or even prohibited manner then the employer is still Vicariously Liable. in the course of employment. the employer may be found to be vicariously liable (Lloyd v Grace. they are Vicariously Liable (absolute liability) as they have a duty to the Dr’s take Reasonable Care. Jordan. Held: that it was driver own business. that remained their property. Now use Burnie Port 8 . there was substantial diversion off route. CML v P&C Insurance If an Employee goes against the wished of his employer & acts with animosity towards a commercial opponent (knocked them) business then the employer is Vicariously Liable as the employee (salesman) is considered to be acting in the employer’s interests. He can excuse himself by showing that the escape was owing to Pl’s default or perhaps that the escape was the consequence of vis major or the act of God. he is entitled to have a drink Crook v Derbyshire Stone Driver stopped for lunch. courier supplied own bike. Roe v Min for Health Denning J “The reason is because. 4. isn’t integrated into it but only accessory to it. 9. D coordinated the three groups but left them alone to operate their systems. Also not only will an employer be liable for actions done in scope and reasonably incidental but also that which is in the employers interests (Kay v ITW Ltd – forklift) which the employees work is to be carried out (Rose v Plenty – child/milkman. they are the agents of the hospital to give the treatment. Regardless whether it involves a contracts of service or contract for services. whether work was allocated with bidding for jobs. whether the employer provided items of equipment and tools of trade. But if done in the employees own personal interest the employer will not be vicariously liable (Deatons Pty Ltd v Flew – barmaid threw glass into face of customer). Held: snigger not employee of D. Negotiation as to rates of remuneration (pay). 7.” Ellis v Wallsend District Hospital: Here the hospital was not liable as the surgeon had been privately consulted by the patient and the hospital had only lent its facilities and support staff to the surgeon. no negotiation over pay rates.e. Borrowed Employees (MacDonald v Cth). although done for the business. It will be characterized by a special dependence or vulnerability. 10. trying to sell the employers product • • • • Employer to employees: Kondis v STA Hospital to patients: Samios v Repatriation Commission / Ellis v Wallsend District Hospitals Schools to students: Cth v Introvigne Occupier in control of premises onto which dangerous substances have been introduced to a lawful visitor: Burnie Port Authority v General Jones Pty Ltd • Test 2: Expressed Prohibition: Employer may be liable for acts done in the scope of employment even if there is an express prohibition against it (CML Assurance v Producers and Citizens Insurance – Insurance Salesman/Defamation). training discipline and attire directed by employer.       Stevenson. The relationship is crucial. even though he wasn’t employed to smoke cigarettes. Hilton v Thomas Burton If employees knocked off work early & had drinks. must keep it at his peril. Smith & Co).   Albrighton v RPA: If the employee forms part of the employers business organisation then they are Vicariously Liable. (Crt said may be different for couriers who supply own vehicle) Harvey v O’Dell: Workers who took an unauthorised lunch break were held to be acting in the course of employment. in the course of employment. P was a driver who was injured by the negligence of a snigger while loading the truck. the standard of Reasonable Care may involve a degree of diligence so stringent as to amount practical to a guarantee of safety (Welding contractor started fire and destroyed part of cold storage) Rylands v Fletcher A person who for his own purposes brings on his land & keeps there anything likely to do mischief if it escapes. Century Insurance and Northern Ireland Road Transport Board – cigarette break/explosion/Liable. Schools to Students • • Cth v Introvigne Sub contractor: negligence broke flagpole & hit kid. once out of the truck the employer not vicariously liable. & if he does not do so is prima facie answerable for all the damage which is the natural consequences of its escape. 2. Test 1: Unauthorised way of Doing Authorised Things: It is a question of fact whether conduct is within the course of employment and depends upon the particular circumstances (Bugge v Brown – Farm hand/old stove/Fire/Liable). employer supplied some equipment. The P is still required to prove fault. Deatons v Flew: Barmaid threw glass – private act of retaliatory self defence. Determine if [P] saw Dr or hospital. Petterson v Royal Oak Hotel: Barman threw glass – keeping order in the bar. Canterbury Bankstown Rugby League v Rogers: head high tackle. not in the course of employment. 8. Held D liable for as the theft was a wrongful mode of performance of the employee’s duty of cleaning it. P pedestrian who was seriously injured by a bike courier who was illegally riding on the footpath. If the tort is committed in the furtherance of the employer’s interest and incidental to the work (four corners) there is no question that the employer WILL be liable (Canterbury Bankstown Rugby League Football Club v Rogers). Test 4: Intentional Torts: Where an employee commits an intentional tort during the apparent course of employment. 3. Morris v Martin & Sons: Mink coat stolen by servant after sent for another major emphasis but a number of factors will be considered in each case (Hollis v Vabu – bicycle delivery) Factors: 1. A non-delegable duty should be imposed on employers. injury and consequence. involved in fight. Examples of protective relationships:    Century Insurancev NIRT If employee’s actions (smoking whilst waiting for fuel tank to fill) are reasonably incidental to the scope of their employment then employer is Vicariously Liable. Cth as provider of education had a separate responsibility from merely being vicariously liable for the teachers or others it appointed to carry out and provide education. whether the employees were providing skilled labour. as groups were totally outside D’s control. 5. It is irrelevant in the case of hospitals that just because they have no control over how the Dr operates. even if they are not servants. Just causation. D was liable on the basis of non delegable duty. HC applied Brodribb factors: little control how tasks carried out. What is reasonable will vary with their purpose for coming onto the land. Burnie Port Auth v General Jones Property owners owe a non-delegable duty to ensure that persons invited onto their property are protected. Stevens v Brodribb Sawmilling: D was sawmilling company who employed tree feelers to cut the trees and sniggers to drag the trees onto the trucks and drivers to drive the trucks. Storey v Ashton A driver backtracking off his route to visit some people is considered a frolic of his own. not vicariously liable. supervision or control of the person or property of another or is so placed in relation to that person or property as to assume a particular responsibility for his or its safety. 6. Deductions from courier’s pay is not negotiated. Phillis v Daley The DOC is what is foreseeable. Held: relationship was employer / employee and endorsed ‘enterprise risk’. then they are considered to be on a frolic of their own. Hospitals to Patients • • • Cassidy v Minister for Health Denning J: Hospitals are Vicariously Liable for negligence of their staff. 3 weeks leave. in circumstances where the person affected might reasonably expect that due care will be exercised. Depending on the magnitude of danger. capacity to delegate (sub-contract). It is reasonable they should bear liability for the negligence of his independent contractors in devising a safe system of work. unskilled with no special qualifications. Kondis Such duties arise because the person on whom it is imposed has undertaken the care. Had to be non-natural use of the land. Public Servants (Oriental Foods v Cth).

comfort.[APPLY AS REQUIRED] NUISANCE The unreasonable and substantial interference with the use or enjoyment of land. Animal Lib v Gasser – put entrants in fear of safety. if it at an unreasonable time. • [D] will usually have insurance against the vicarious liability. pleasure. Fault depends on the breach of a duty. Plaintiff doesn’t have to prove that the defendant’s use of their land is unreasonable. rubbish etc) PRIVATE NUISANCE (PRIVATE LAND) TEMPLATE Duration – work that is of a temporary nature is generally not held to be a nuisance: Andreae v Selfridge Co. Claims in both negligence & nuisance require proof the damage was Reasonably Foreseeable. But measure against a reasonable trade. Activity in a residential area constitutes nuisance after business hours: Seidler v Luna Park Reserve Trust. The fact that it happens is evidence in itself Justifications and Policy Considerations: INCLUDE WITH YOUR ANSWER In the three protective relationships where a non-delegable duty is clearly established there are sound policy reasons for the imposition of the duty. but which can be seen from [P’s] property Thompson-Schwab v Costaki. Timing and Duration – Calculus of nuisance = severity of the nuisance v the time/duration/extent in which it occurs: Halsey v Esso Petroleum d) e) f) • Adopter of the nuisance: Sedleigh-denfield – Drain in land that blocked and flooded neighbour. Calculus of nuisance requires proof of damage which is caused by D and is reasonably foreseeable. with use & enjoyment of land. a) i) Court balances the right to enjoyment versus the defendant’s desire to undertake the activity – the rule of give and take: Bamford v Turnley. Damage: Property damage is prima facie evidence of the interference being substantial and unreasonable: St Helens Smelting v Tipping. It is not a defence to argue [P] approached the nuisance . Factors considered include: Nature of the locale – what may be reasonable in one place may be unreasonable in another. Fault depends on whether D created the nuisance. The landowner is liable for nuisance only if he ‘continued or adopted’ the nuisance. Nuisance – liability is based on the unreasonableness of the interference itself. is being interfered with by [D’s] actions. Authoriser of the nuisance: De Jager – Hall owner who hired it out. so approaching nuisance no defence: Sturges v Bridgman. Tentative Conclusion: . even if it is temporary. people said aesthetics were being destroyed held: nuisance) Privacy is not a legally recognised interest: Victoria Park Racing v Taylor but aggressive viewing may give rise to an action to protect privacy: Plenty v Dillon (obiter). Right to privacy is not protected in nuisance. husband couldn’t sue neighbour). fresh air. Interference that would be reasonable in an industrial area may be unreasonable in a residential area: Munro v Southern Dairies Ltd: does not matter whether activities benefit the public. (brothel opened up in suburban area. but in Aust Hunter v Canary Wharf overturned this. could not reasonably have found out. Person who knows or ought to be aware of nuisance: However D can’t be liable if he (1) Didn’t know of the nuisance existence (2) Didn’t ought to know of it’s existence (3) Didn’t have any reasonable opportunity to repair or remedy the nuisance. or a right to freedom of view (Victoria Park). quietude. • [D] is already vicariously liable for the fault of its own staff. Then a mere licensee was given locus standii in: Deasy Investments v Montest – QCA relied on Khorasandjian On balance …may have title to sue despite being a mere licensee (Animal Liberation Inc v Gasser) i) ii) Property damage most conclusive evidence if other interference types as well: Halsey v Esso Petroleum. If licensee (not a proprietary right) ELEMENT 4: The interference is substantial and unreasonable in all the circumstances: The interference with this right by [D] [is/is not] substantial and unreasonable as [item A or B]. The damage MUST be reasonably foreseeable ELEMENT 2: Who can be sued: [D] is capable of being sued as [he/she] is the [apply below].] the land [he/she] has a proprietary (title. which can be intentional or unintentional. ELEMENT 1: Locus standii/right to sue: Events that are not on [P’s] property. Malice on the part of the defendant will outweigh the particular sensitivity of the plaintiff: Hollywood Silver fox Farm v Emmett ELEMENT 4: Defences: (select one) a) [P] approaching the nuisance by [apply facts] is not a defence: Sturges v Bridgman. offensive sights and smells. “Depending on the magnitude of danger the standard of reasonable care may involve a degree of diligence so stringent as to amount practically to a guarantee of safety. Therefore conduct giving rise to nuisance may be perfectly reasonable. 9 . not an unduly sensitive trade/business: Robinson v Kilvert.all you can say is that the nature of the locality means that the interference is not unreasonable. b) c) B. However. iv) Freedom from non-physical damage such as noise. no liability. ELEMENT 3: A recognised right: [P’s] recognised right of [apply facts]. smell. which was created by another on his land. Nuisance & Negligence: As [P] [owns/rents/etc. a) b) the land itself in its natural state property or chattels associated with the land the right to enjoy the land eg. But if it would affect an ordinary person.Authority. Torette House v Berkman Some element of fault needed on the defendant’s behalf: Torette House P/L v Berkman – did not know or ought to have known/acted. regardless of whether it impacts on the use & enjoyment of land Nuisance protects against physical injury and interference with use and enjoyment of land Nuisance is intangible invasions (noise. vibrations) Trespass is physical intrusions by tangible objects (people. Damages require actual damage. Breach judged on reasonableness of conduct by balancing risks of conduct. A. Nuisance requires proof of the unreasonable interference with use & enjoyment. interference only unreasonable if it would affect a reasonable man: Walter v Selfe. defendant have to prove reasonable: Corbett v Pallas. Time – activity within a CBD constitutes a nuisance during business hours: Wherry v KB Hutcherson. Can’t be a nuisance if wouldn’t affect an ordinary business: Robinson v Kilvert. Nature of locale judged at time of interference. which the law deems capable of being protected. ii) • • • Nuisance v Trespass: • • • • • • • Nuisance’s are indirect interferences. Malice – An interference that would otherwise be reasonable is rendered unreasonable if it is malicious: Christie v Davey. lease) or legal interest in the land and can sue: Oldham v Lawson (wife owned land. Neighbour spying mirror system.” Some Element of Fault Proved: Failure of supervision. iii) iv) a) Doesn’t have to be in possession of land: Fennel v Robson Excavation P/L – expired license. Calculus of Nuisance: • Negligence – liability is based on the unreasonableness of the conduct causing the damage. but the resultant interference may be totally unreasonable. neighbours complained. Trespass is actionable per se. Eg. If property damage. Trespass must be a direct interference with land. then the special damage caused by sensitivity is recoverable: McKinnon Industries Ltd v Walker. Creator of the nuisance: Fennell v Robson – contractor dug foundations and caused subsidence. Indirect. aesthetics Munro v Sulluvian Right to clean air Cth v Registrar of Title for Vic the right to free access to land: Dollar Sweets P/L v Federated Confectioners – forcibly prevent. • • However whilst historically a licensee has not had title to sue. • [D] is a financially responsible person fully aware of its responsibilities towards the class of persons to which [P] belongs. c) d) e) iii) Sensitivity of Plaintiff – ‘Eggshell Skull’ rule does not apply. Judged ‘not merely according to elegant or dainty modes of living but according to plain and simple notions among English people’: Walter v Selfe. Calculus of neglect requires proof of damage which is caused by D and is reasonably foreseeable. then it will be held a nuisance: Harrison v Southwark & Vauxall Water Co. doesn’t matter if nuisance is temporary or necessary precautions taken: Harris v Carnegie’s Pty Ltd. cattle. a) [P] may have a cause of action against [D] due to the substantial and unreasonable interference to [P’s] enjoyment and use of [his/her] land as a result of [APPLY]. in the UK in Khoransandjian v Bush a mere licensee was able to sue.

then D must prove a justified excuse. 10 . No-one else delayed. and causation.showed a particular outrageous disregard for public rights: Guppys v Brooklyn. can’t interfere with. [P] through [apply facts] [can/can not] show that [he/she] is a private individual suffering particular or special (different) damage over and above that suffered by the rest of the community. (see private nuisance for details) iii) Standard is stricter than private nuisance as more people affected. Must ask them to abate first. as it is not the fault of the owner if their business thrives at a specific & particular time of the day. go onto their land. & public utility is relevant-a calculus of nuisance. duration. then [D] must show interference is an unavoidable consequence: Allen v Gulf Oil Refinery. but doesn’t block: Silservice v Supreme Bread. Injury to the F&F seems to me to be in the same class of interference as would be the fouling of a public swimming pool” (1) Damage to skyline is not legally enforceable as it is subjective & Court can’t enforce good taste. Even without pecuniary damage this loss is sufficient for peculiar damage.recognising the need for give & take (3) Standard is stricter than for private nuisance Dymond v Pearce Subjective test of what is reasonable at the time the nuisance occurred Examples of Interference with Public Amenity Kent v Johnson “in my opinion. nothing unique in their loss (only extent of). as it wouldn’t substantially interference with public amenity. ELEMENT 4: Remedies (select as needed) Taylor v City of Perth: • Calculus of nuisance – balance: (1) objective behind the construction (2) the damage the construction is causing to third parties. Personal injury is prima facie evidence of peculiar damage. the defence does not apply: York Bros v Commissioner for Main Roads. (3) Also obstructing footpath while constructing building is not a nuisance & is not an unreasonable interference with travel & access. Benjamin v Storr – trucks constantly going past front was blocking access and light into coffee shop. Held damages too remote. ELEMENT 3: The interference is unreasonable [P] must show that the interference is unreasonable and substantial through application of an [established category or calculus of nuisance]. Interference can’t be a matter of taste. Not nuisance if just annoying. The claim of reasonable care by [D] will not exonerate [him/her] from liability. duration. d) Contributory negligence – unusual sensitivity can be reversed and reduce damages. Interference with travel and access if: i) ii) a) Attorney-General as protector of the common rights (usually doesn’t get involved due to practical or political reasons b) c) i) • • Attorney-General’s fiat (A-G must give permission to a ‘relator action’. a clear link between interference and damage. a) Injunction – if there will be a continuance of nuisance (stop notion of ‘cheaper to pay damages than stop’) b) c) Damages – can only be awarded for a past nuisance b) c) Exemplary damages – awarded in circumstances where the conduct of the defendant is such that it warrants such damages: Walsh v Ervin Damages – usually for past losses. Held: operating in an unconventional manner that attracted unreasonable Silservice v Supreme Bread customers lined up at shop for fresh hot bread H: Not unreas interference. Statutory Authority: i) York Bros v Commissioner for Main Roads • The activity authorising the nuisance was created by statute • There was no reasonable way of carrying out the activity. then it is not actionable: Hammersmith Rly v Bland. 4. (4) Also public safety on highway is not a nuisance. But if duty could have been performed in another way to avoid interference. Suffered pecuniary loss (time/money) and peculiar damage. PUBLIC NUISANCE (PUBLIC LAND) A public nuisance is any activity that materially affects the reasonable comfort and convenience of a class of the public by interfering with a public or common right. except in emergencies. insufficient to support action. but if given the person must give an undertaking as to damages). Wagstaff window display attracted crowds that obstructed roads & shop access. b) Established categories Interference with public amenity – substantial interference with the use and enjoyment of a public park would constitute a public nuisance. claimed to be [apply facts] of [D’s] nuisance is no defence: Munro v Southern Dairies. The defendant in carrying out his business intentionally creates a crowd: Wagstaff v Eddison Bell Co. Held fishing rights same as the general public’s. can’t recover for reduction in property value for non-tangible nuisances. Must expect delay & inconvenience especially with construction work etc. according with the statute. not reasonable care: Harris v Carnegie’s. weaker argument if a peculiar degree is suffered (2. (Cutting off a tree branch) Can’t deliberately set-out to destroy object of nuisance: Lemmon v Webb. (5) However if it ↓ use & enjoyment then it can be Public Nuisance Public utility principle. without causing the nuisance. or where there is a prospective nuisance: Animal Liberation v Gasser. timing. ELEMENT 2: Locus Standii (ignore A & B and look at C) • Malice . Abatement – you can abate the nuisance by self-help (can’t recover cost) BUT. The business operates in an unconventional manner: Fabbri v Morris – serving window instead of shop entrance. inconvenience and delay for plaintiff. Animal Liberation v Gasser – peculiar damage because patrons put in fear and frightened away from entering circus because of protesters. a substantial deleterious unlawful interference with the nature & quality of the reserve as a park for one to use & enjoy as such as a member of the public would constitute nuisance. 3). Can plead nuisance or negligence. Castle v St Augustine’s Links – guy hit by golf ball on public land. 7). Held public nuisance because peculiar pecuniary damage. hard to determine for lack of enjoyment of land. owner occurred expense of having to light lanterns. ELEMENT 1: A class of people is affected The class that [P] belongs to is [apply facts] and is enough to show a representative crosssection. Held: Deliberate action to bring crowds t/f actionable. and it was not performed negligently.b) c) The benefit to society. Strong argument if a peculiar kind is suffered (1. CIVIL LIABILITY ACT 2003 [QLD] Limiting Liability in Negligence • • Establish the criteria for standard of care and breach Change Causation a) i) General considerations – Diamond v Pearce: Must be unreasonable and substantial ii) Calculus of nuisance – degree. Must give back severed property. Interference must be clear. (2) Argument of the F&F failed. Thus Xmas lights are indeed public nuis as they deliberately bring crowd Fabbri v Morris Walk thru ice-cream shop. Special Damage: must distinguish [P] from the rest of the community. but only if inconvenience is appreciably greater than others. AG v PYA Quarries. Teamay v Severin – sale of alcohol caused nuisance in aboriginal community. Public Utility e) f) Statutory Authorisation – if there is statutory duty to conduct activity in that area. Pl’s injury needn’t have prop rights in land if nuisance occurs Castle v St Augustines Links Onus of proof (1) Pl must establish nuisance (2) Pl must establish causation by the D (3) onus shifts & D must demonstrate reasonable excuse Nature of the Interference (1) Must be unreasonable & substantial (2) Degree. Personal Injury Prima facie Personal Injury will be damage above & beyond that suffered by the rest of the community. Walsh v Ervin – Path of road blocked. ELEMENT 5: Remedies i) a) Injunction – awarded when there is likely to be a repetition of the wrong: Clowes v Staffordshire Waterworks. ii) If the nuisance was an inevitable consequence of the undertaking. timing and public utility of the activity all relevant. P must establish that there is a nuisance. ELEMENT 4: Defences (apply as required) a) (1) Boyd v Great Northern Rwy Company – doctor held up at crossing for 20 min. because the measure is reasonable interference. b) iii) Planning permission from a subordinate planning body does not have the same effect as a statutory authority – it has no jurisdiction to legalise nuisance: Hunter v Canary Wharf. It is actionable in tort by private individuals if they suffer special and particular damage over and above the rest of the public. although permission is rarely given because of the above reasons. (see above) (2) (3) (4) (5) (6) (7) Ball v Consolidated Rutile – fisherman take action for pollution of Moreton Bay. Ie: it is a complete defence is they can prove that it could not be conducted in a way which caused the nuisance. Must still recognise need for give and take.

a vehicle or bungee cord Section 14: Presumption of awareness Reverses the onus of proof in a volente defence If a volente defence is raised. 37: Restores exemption of road authorities for failure to repair or keep in repair unless they have actual knowledge of the particular risk. • For over two decades pro-business groups in the USA have mounted a campaign to cultivate a legal system that favours business interests • And lawyers have not helped – especially in the U. conspicuous or physically observable’ Not obvious if created by a failure to maintain e. VOLUNTEERS S. Stat Action b. D. Use Encouraged. 40: No exemption for criminal acts S. But For b. Wagon 2) 7. 45 Criminals not be awarded damages • Liability s excluded if the court is satisfied on the balance of probabilities that the incident occurred while the plaintiff was engaged in an indictable offence • Can get if ‘would operate harshly or unjustly’ EXCLUSIONS – INTOXICATION S. the risk of sympathetic opthalmia in Richard v Whitaker No liability in an inherent risk materialises Does not exclude liability for failure to warn (where applicable) Section 22: Standard of care for professionals (modifies Bolam test) 22 (1) A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice. Section 12: Onus of Proof “. * The general allocation of financial or other resources by the authority is not open to challenge.physical/mental integrity and property interests (land and chattels) 11 . Irrelevant if P was aware (or unaware) of the risks CONTRIBUTORY NEGLIGENCE S. Damages TRESPASS PROTECTED INTERESTS & NATURE OF INTERFERENCE/REMEDIES • Interests protected. etc of public or other authorities Section 35: Public authorities In deciding whether a public or other authority has a duty or has breached a duty * The functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions. 38: Definition – people doing voluntary work for community organisation S. 22(5) This section does not apply to liability arising in connection with the giving of (or failure to give)a warning. dust disease or tobacco related condition Section 9: Breach. Suffered Loss 5.O. 19: No liability for personal injury suffered from obvious risks in dangerous recreational activities. CN may reduce an award of damages by 100% Therefore.the plaintiff always bears the onus of proving. in relation to the risk of harm to a person.: No duty of care arises just because someone is drunk Drunkenness does not change the standard of care owed Contributory negligence is presumed if P was intoxicated at the time but rebuttable if plaintiff can show intoxication did not contribute or not self induced. Precautions 4.e.. Defences (Volenti.A. Calc of Neglect b.e. ONEROUS RISKS. 39: No liability for actions done in good faith S. Contributory etc) 8. * The authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates. Not Obvious. 41: Not protected if drunk and fails to exercise due care and skill S.S. 24: Contributory negligence can defeat a claim – i. 36: Actions or omissions much be such no reasonable authority would make them S. WHO’S BEHIND TORT REFORM • Insurance Companies • Businesses facing higher insurance costs • Statutory Authorities (self insured) • Ideologues concerned about: o Judicial adventurism o Personal responsibility • Anti-lawyer sentiments Negligence of Land Managers Form 1. 22 (2) Peer professional opinion cannot be relied on if the opinion is irrational or contrary to written law 22 (3) the fact that there are differing peer professional opinions widely accepted by a significant number of respected practitioners in the field concerning a matter does not prevent and 1 or more (or all) of the opinions being relied on for the purposes of this section 22(4) Peer professional does not have to be universally accepted to be considered widely accepted.greater fragmentation of the law and confusion Assumptions and premises underlying the reforms are being questioned LAWYERS REACTIONS LESSONS FROM THE U. any fact relevant to the issue of causation” Section 13: Obvious Risk Obvious t a reasonable person Includes risks that are patent or common knowledge Can be obvious even though it has a ‘low probability of occurring’ Can be obvious even if ‘not prominent. advice or other information. Remoteness (Wagon 1. * The functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates). that is associated with the provision by a professional of a professional service. Define Negligence 2. Breach a. Section 45 – Criminals • Liability is excluded if the court is satisfied on the balance of probabilities that the incident occurred when the plaintiff was engaged in conduct that is an indictable offence • Irrelevant whether they were charged or convicted • Will not apply if the outcome would be harsh or unjust. General Principles Identifies breach of duty by reference to (a) foreseeability of risk harm and (b) the ‘negligence calculus’. but minimum 25% off Outcome of Reforms No increase in affordability of insurance – premiums have gone up No increase in clarity & certainty of the law . of Land Managers a.. RF. Causation a.• • • • Exclude Liability for ‘obvious risks’ and incorporate presumptions of awareness Eliminate proactive duties to warn of obvious risks Eliminate liability for the materialisation of ‘inherit risks’ Exclusions for criminals and the intoxicated Civil Liability Act 2003 (Qld) Does not apply where negligence occurred prior to Dec 2002 Section 4: Act applies to ‘any civil claim for damages for harm’ Section 5: Does not apply to injury under Workcover Queensland Act. on the balance of probabilities. Admin 3. • Sub (1) seeks to ‘raise the bar’ from ‘far fetched or fanciful’ to ‘not insignificant’ • Sub (2) essentially restates the common law consideration of reasonable person’s response to risk of harm Section 10: Breach a) The burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible. 46: Not relevant to consider in the standard of care that persons may be exposed to increased risk because of intoxication I. 35: Clearly allows Public Authorities to make broad policy decisions about priorities in spending S. 42: Not protected if acting outside scope or contrary instructions EXCLUSIONS – CRIME S.A.S. TORT REFORM IS CYCLICAL • Who’s behind tort reform? • Politicisation of tort reform – Bush/Cheney v Kerry/Edwards • Calls for Tort reform are not new. responsibilities. and b) The fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the was in which the thing was done. S11(4): The requirement to consider “whether or not and why responsibility for the harm” should be imposed my introduce a policy consideration that does not currently exist.C.. there is a reputable presumption that P was aware of any obvious risk Need only be aware of the type of risk Section 15: Duty to warn = No duty to warn of obvious risks But does apply if: 1) P requests information about risks 2) D is required by ‘a written law’ to warn of risks 3) D is a professional (other than a doctor – S21) and risk is PI from the provision of a professional service by D Section 16: Inherit Risk An inherent risk is of something occurring that cannot be avoided by the exercise of reasonable care and skill e.g. S 24 is an alternative to the defence of volenti non fit injura (voluntary assumption of risk) PUBLIC AND OTHER AUTHORITIES S. Novus Actus 6. and c) The subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm give rise to or affect liability in relation to the risk and des not itself constitute an admission of liability in connection with the risk. – 25% minimum deduction Section 24: Contributory negligence can reduce an award of damages by 100% Section 35: Principles concerning resources.g. DANGEROUS ACTIVITIES S. Section 11: Causation S11(3)(b): Statements by P as to what they would have done in the absence of breach are inadmissible unless they were statements against interest.

self-help.not necessary to prove actual damage – Actionable per se Remedies – nominal. aggravated.Indirect or consequential act or omission Fault.P must prove actual damage ‘damage is the gist of negligence’ Remedies.breach of duty of care causing damage which is not too remote Proof of damage. Exemplary damages in very rare cases where negligence. injunction NEGLIGENCE PROTECTED INTERESTS & NATURE OF INTERFERENCE o o o o o Protected Interests-right to physical and emotional integrity. Personal Injuries Proceedings Act 2002 (Qld) limits availability of exemplary damages 12 . and property and economic interests Nature of interference.• • • • • Nature of interference – Direct Fault required – intentional negligent or reckless act Act must be voluntary and a positive and affirmative action (not omission) Proof of Damage .Compensatory. compensatory. aggravated and exemplary damages.

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