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Renees Torts Notes 033:

1. An act or omission by D
2. Infringement of an interest of P recognised by law as being worthy of protection against an infringement of that sort, created by an act or
omissions of that sort, and
3. Giving rise to a civil action for damages
Act must have been voluntary (tortfeasor must have intended the act but it is not necessary that the tortfeasor intended to inflict the
damage resulting from the act). Act or omission generally requires fault. i.e. No liability without fault. D must have acted intentionally,
negligently, or recklessly. Cf strict liability, where D is liable even in the absence of intention, reckless, negligently.
Interest protected:
May not have a right of action even if damage occurs Damum absque injuria (damage without injury damage without any legal wrong)
A person may have a right of action although they have suffered no injury. injuria sine damno (legal harm without actual damage)
No right to privacy Victoria Park Raceway v Taylor. A case of damage w/o injury.
A person may have a right of action w/o damage. Absolute rights, actionable per se. (Trespass)
Interest affected
Phys Integrity


Nature of infringement
Direct, un(neg.battery)/intentional



Compensatory damages
Nominal, Compensatory




Mental integrity





Right to use land, air,

False Imprisonment


Compensatory, Exemplary,
Nominal, Compensatory

Trespass to land


Nominal, compensatory





Nominal, Compensatory,
self help, injunction

Compensation: to compo losses to P in their legally protected interests. Focus on conduct of D and harm to P
Loss shifting: a principal function of torts is to shift the loss from the innocent victim to the wrongdoer. Individual liability theory individual
D bears the loss, enterprise liability theory large organizations eg: employer should bear the loss for torts of employees.
Spreading: shift from innocent party to wrong doer. Spread through no-fault schemes (i.e. Vic roads)
Deterrence: effect reduced to availability of insurance.
Remedies: Nominal (if not actual damage), Compensatory (actual losses, med, damage), Aggravated (hybrid of compensatory /
exemplary) (for indignity, hurt feelings, disgrace, humiliation), Exemplary/punitive (punish D if shows a contumelious disregard for P rights),
Contemptuous (a derisory amount indicating the courts low opinion of the Ps claim)


Intentional or negligent act of D which directly Failure of D to take reasonable care to prevent
causes an injury to the Ps person or property foreseeable harm to the Ps person, property or
without lawful justification
economic interests
Intentional or negligent act (D must only intend Duty of care
(be reckless or negligence) act not damage)
Injury must be direct
Damage/Loss caused by Breach and not too remote
Injury to Ps person or property
No lawful justification

DIRECT (Scott v Shepherd)

Nature of action
Fault based or strictFAULT BASED


May be direct/unintentional if negligent trespass.


Onus of Proof

P proves direct interference with right & thenP has the burden of proving all the elements i.e. onus
shifts to D to disprove fault i.e. neither intentionalon P throughout
or negligent except for highway cases where
onus remains on P throughout Venning v Chin
Actionable per se(no need to prove damage)

P must show actual damage

Assault, Battery, False Imp, Trespass to Land

Causes of Action

Negligence, Nuisance and Defamation

Trespass to the person: The wrongful, direct and intentional interference with
persons: McHale v Watson. Three types: False Imprisonment, Battery, Assault.
All are actionable per se.
Assault is the intentional or negligent act or threat by D that directly places P in
reasonable apprehension of an imminent physical interference with him/her, or
the person of someone under his or her control w/o lawful justification.
(threat of battery) Gist is apprehension and actual knowledge.
Elements: Proves direct threat, then D must disprove fault.
1) Direct threat by D. Words/conduct or both. Did D issue a threat to P:
Stephens v Myers (1830). There must be the means to carry out the threat?
Conditional threats may be harmless by the words of D (clear intention not to
batter): Tuberville v Savage; A condl threat will not constitute assault unless the
offered alternative is an unacceptable command: Police v Greaves. If the threat
is a suggestion of assault at a future time, and there is no way for the victim to
escape b/c at the mercy of the tortfeasor until the threat can be carried out, then
it will be assault. Zanker v Vartzokas.
2) Intention: to cause apprehension
3) Apprehension of Imminent harmful conduct: Apprehension is to anticipate
physical contact w/ the fear or in the knowledge and expectation that it will
happen. Focus is on the mind of P not on whether the D was actually going to
follow up the threat BUT the D must have an actual or apparent present ability
to carry out the threat. Brady v Schatzel. Must be aware of assault. Doesnt
have to be afraid. Apprehension means to anticipate imminent body contact.
Obj Test: The threat must be sufficient to be able to raise apprehension in the
mind of a reasonable person. Unless the D is aware of the Ps particular
vulnerability e.g timid
Imminent: if someone calls you from overseas then not imminent. Brady v
4) W/o Lawful Justification: To be proved by D; Intent to carry out the threat is
irrelevant. Hall v Fonecca.
Words alone will be assault if they directly raise in the mind of the P the
apprehension of an imminent battery by the D Barton v Armstrong (telephone


Defences: Lawful justification to be proved by D

Consent: McNamara v Duncan Did not consent to blow after mark
outside of rules of game. If playing contact sport, an amount of contact is
consented to, but smtg intentional and outside rules will be battery:
Giumelli v Johnston.
Provocation: Fontin v Katapodis: right to defend self but no right to take it
further provocation is not available to reduce compensatory damages,
but is available to reduce exemplary damages.
Self defence: Fontin v Katapodis SD must be proportional to threat.
Medical necessity: every surgical procedure is battery unless it is
authorised or excused by necessity: Marions Case: But does not apply
where the patient has given a certificate of refusal.


Inevitable Accident: wasnt voluntary, intentional and took all reasonable

care to avoid. Public Transport Commission of NSW v Perry (epileptic fit
and fell on railway)
Defence of Others
g. Discipline: Parents and teachers can use reasonable force to discipline
h. Emergency/Necessity: Act must be reasonably necessary to protect
person or property. Urgent situation of imminent peril. Mouses Case
threw passengers bags overboard to lighten ship in storm. Held necessity
in saving lives. Cant kill another to save yourself R v Dudley &
Stephens. Hunger is not an excuse for stealing, homelessness isnt for
trespass Southwark London Borough Council v Williams
Mistake: intent to create apprehension is necessary. Hall v Fonececa
Medical Emergencies: Amputated leg of trapped unconscious victim to free him
Re F. But competent adults can refuse consent even if refusal means death. But
doctors can give a blood transfusion to a minor even if the parents refuse if its
necessary to save the life. s20 Transplantation and Anatomy Act 1979 (Qld)
Hostility is not a requirement but can make an otherwise permitted contact a
battery. Also its presence may affect the amount of damages awarded to P
Ds motive to commit the act, however beneficent does not affect its
trespassory character Murray v McMurchy Extra surgical procedures for benefit
of P were still battery.
Nominal damages. If no actual harm. Compensatory: If P can show actual
damage. Aggravated: If P can show unconscionability.
The direct, intentional physical interference without lawful justification: Innes v
Wylie. Advantage over crim charge is that the standard of proof is the lesser
balance of probs and an award of damages is available to P.
Onus: D will be liable for battery if P can show a direct interference and (shift:)
D cant disprove fault.
Elements: Gist is Physical interference
1) Direct: The contact to P must be a direct result of Ds act, but D doesnt
have to come into contact with P: Scott v Shepard (1771) fireworks, pass
by two people.
2) Intentional: or reckless or negl. Voluntary act=intentional, Duncan v
McNamara. The conduct must be active, not mere passive obstruction:
Innes v Wylie.
3) Physical Interference: There must be contact: Innes v Wylie
4) Defences: Lawful justification to be proved by D
Consent: McNamara v Duncan Did not consent to blow after mark;
outside of rules of game. If playing contact sport, some contact is
consented to, but smtg intentional and outside the rules will constitute
battery: Giumelli v Johnston.
k. Provocation: Fontin v Katapodis: right to defend self but no right to take it
further provocation wont reduce compensatory damages, but may
reduce exemplary.
Self defence: Fontin v Katapodis SD must be proportional to threat.


Medical necessity: every surgical procedure is battery unless authorised

or excused by necessity: Marions Case: But SD does not apply where the
patient has given a certificate of refusal.
n. Inevitable Accident: wasnt voluntary, intentional and took all reasonable
care to avoid. Public Transport Commission of NSW v Perry (epileptic fit
and fell on railway)
o. Defence of Others
p. Discipline: teachers to what is reasonable, Parents and teachers can use
reasonable force to discipline children.
q. Emergency/Necessity: Act must be reasonably necessary to protect
person or property. Urgent situation of imminent peril. Mouses Case
threw passengers bags overboard to lighten ship in storm. Held necessity
in saving lives. Cant kill another to save yourself R v Dudley &
Stephens. Hunger is not an excuse for stealing, homelessness isnt for
trespass Southwark London Borough Council v Williams
Medical Emergencies: Amputated leg of trapped unconscious victim to free him
Re F. But competent adults can refuse consent even if refusal means death. But
doctors can give a blood transfusion to a minor even if the parents refuse if its
necessary to save their life. s20 Transplantation and Anatomy Act 1979 (Qld)
Mistake is NOT a defence
P does not need to know battery is being committed. Where asleep or under
anesthetic the affront is as serious to the P when he or she discovers it after
the event as if the P had been conscious of it at the time
Is every unwanted contact a battery? The contact must be offensive outside
the accepted usages and accidental contacts of daily life e.g. not an everyday
occurrence, Collins v Wilcock
Hostility is not a requirement but can make an otherwise permitted contact a
battery. Also its presence may affect the amount of damages awarded to the P.
Ds motive to commit the act however beneficent does not affect its trespassory
character Murray v McMurchy Extra surgical procedures for benefit of P were
still battery.
Remedies: Is actionable per se allowing nominal damages even if no damage.
The violation of being touched without consent is sufficient but if actual harm
then remedies include COMPENSATORY for actual damage, AGGRAVATED for
conscious and contumelious disregard for Ps rights OR EXEMPLARY
DAMAGES to punish and deter the D.
Examples of Battery:
Punching another
Shining a light in someones eyes
Spraying water on another
Using a weapon/implement to strike another e.g. stick, shooting a
An unwelcome kiss
Snatching a book off another
Doctor giving treatment without consent
Using a 3rd partys body to touch another


D will be liable if P can show the wrongful total restraint on the liberty of P
directly caused by the intentional, reckless or negl act of D w/o lawful
Onus: P must show interference (deprivation of liberty) then D must disprove
1. Wrongful: Against will of P. P need not be aware of restraint Murray v
Ministry of Defence. Meering v Graham White Aviation: P asked to wait in room
for an interview, but real purpose was not said. A guard was outside the closed
door and intended to stop him if he left, held to be FI. But fact that not aware of
restraint at time may affect recoverable damages Myer Stores Ltd v Soo.
2. Total Restraint of Liberty of P:
2.1 Physical Restraint. No reasonable means of escape without injury or serious
inconvenience. R v Macquarie (FI when left on boat, swim was serious
inconvenience), Burton v Davies (moving car; unreas to jump) Bird v Jones
(bridge blocked was obstruction, not FI b/c had options) or
2.2 Means of escape not known to P. Robinson v Balmain Ferry Co (not FI b/c
had knowledge of way out)
2.4 Psychological: P must have submitted to Ds power. It is not necessary for D
to use force. Words alone may be enough if P fears the imminent and direct
force if they dont submit.
2.4.1 Coercion if sufficient: Symes v Mahon (told by police they had
warrant to arrest, felt he had to comply, even though they had the wrong
2.4.2 Fear of public humiliation sufficient: 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; when Soo attempted to
protest guards insisted; held: total restraint b/c of public embarrassment.
3. Directly Caused by D: D can affect P personally or through agency of 3 rd
party. May be passive act, ie failing to release prisoner Cowell v Corrective
P only need show the fact of trespass: Williams v Miloton. The onus then shifts
to D to disprove.
4. Intentionally, Recklessly, or Negligently: Cowells Case
5. Without Lawful Justification:
1. Consent: But P can withdraw consent
i) Herd v Weardale: If P consented to it through the course of his
employment he cannot claim FI; the question arises, what did the
parties agree was within the course of employment. Balmain New
Ferry v Robinson
2. Statutory Authorisation and justification
3. Inevitable accident
4. Self-defence
5. Defence of property
6. Necessity
Mistake is no defence Cowell v Corrective Services
Remedies FI is actionable per se
a) Injunction if the tort is proved continuing

b) Damages: i) Nominal: if not damage b/c actionable per se ii) Compensatory:

for suffering loss of freedom iii) Aggravated where loss of dignity or
humiliation: Myers Stores v Soo iv) Exemplary unconscionable conduct which
requires punishment. Bahar v Marwest Hotel
Consent: may be conditional and can be withdrawn at any time. Halliday v
Nevill, Plenty v Dillion, Herd v Wardale.
Elements for valid consent: 1. Must be in relation to the act complained of
McNamara v Duncan 2. voluntary R v Williams (Fraud), Latter v Bradell
(Duress), Norberg v Wynrib (CANADIAN unequal power Doctor/patient) 3. by a
competent person (child who has reached age of sufficient understandingGillicks Case) 4.with knowledge ie must consent to nature and character. R v
Sporting Activities: implied consent to blows within rules McNamara v Duncan,
implied consent to common infringement Guimelli v Johnston, No consent to
deliberate acts of violence Canterbury Bankstown v Rogers
Necessity: Act must be reasonably necessary to protect person or property.
Urgent situation of imminent peril. (refer to battery [q]).
Inevitable accident: wasnt voluntary, intentional and took all reasonable care
to avoid. Public Transport Commission of NSW v Perry (epileptic fit and fell on
Self Defence: Where immediate danger of imminent violence may use such
force as is reasonably necessary to protect one self. McClelland v Symons.
Force must not exceed what is reasonably necessary to fend off attack Fontin v
Katapodis. Defence of Property: land and chattels can be defended by
reasonable force. Bird v HolBrook.
Discipline: Parents and teachers can use reasonable force to discipline
Contributory Negligence: is not generally a defence to intentional torts. May
operate if trespass is negligent. Shin Case
The intentional, reckless or negligent act of D, which directly interferes with Ps
exclusive possession of land w/o consent or lawful justification. Protects right to
exclusive possession. It is actionable per se at the suit of the person having an
immediate possession Entick v Carrington

3. Exclusive Possession: protects actual exclusive possession or occupation

of land not ownership. De facto possession is enough Newington v Windeyer
(as long as you exercise proprietary rights over the land). But ownership may
help establish possession Ocean Estates v Pinder (growing veggies) Profit a
prendre a right to take is sufficient for action: Mason v Clarke (rabbit snares;
Clarke interfered w/ that interest). Right to exclusive possession, a construction
company may have his right while working on a site: Concrete Constructions v
4. Land: What is reasonably necessary for the enjoyment of the land. Bernstein
of Leigh (Baron) v Skyviews (planes taking pictures overhead not trespass, but
repeated flights might be nuisance), Graham v KD Morris & Sons (Crane
overhanging, Crt ordered injunction/damages), LJP Investments v Howard Chia
Investments. Bendal v Mirvac Project - not if actually interferes but if at a height
that MAY interfere
5. Defences: Mistake is not a defence to trespass to land.
i. Consent: D must prove consent. Implied: to enter property, eg retrieve ball,
stepping on property to avoid a parked car, going to front door to talk to
occupant. Halliday v Nevill. (extends to entry by police for the purpose of
questioning or arresting OF OCCUPANT) Plenty v Dillon (P had expressly
revoked consent to enter his premises, held trespass by officers who entered to
serve summons, b/c could have posted summons instead; trespass unnec.)
For lawful purpose: Lincoln Hunt Australia v Willessee (offer to public to visit his
premises was limited to clients and public bona fide seeking info or advice,
didnt extend to unwanted visitors, ie robbers, intrusive film crews), Rinsale v
ABC (P granted injunction based an blatant disregard of property rights).
Withdrawl of consent: Cowell v Rosehill Racecourse (licence to enter can be
withdrawn and after allowing reasonable period to get out, you can remove
them) Halliday v Nevill (Locked gates, signs etc)
Limited license: Right to enter limited in scope. Entry unrelated to the right is
trespass of premises: Barker v R (where left to look after house and stole).
Where license is conditional, and breach of conditions, then trespass: Konsiker
v Goodman
ii. Abatement of nuisance by self-help: can trespass on land to stop a
nuisance in case of emergency: Jones v Williams

Elements: Onus of proof is on P to show direct interference then shifts to D to

disprove fault.

iii. Necessity: requires public utility Winfield v Jolowicz

may trespass on land to save a life Sherrin v Haggerty

1. Voluntary Act: either negligent or intentional; Onus is on D to prove absence

of intention or negligence. Must be intentional or negligent act: Public Transport
NSW v Perry. Not voluntary if thrown by someone else Smith v Stone
2. Direct interference: Must be direct or physical: Davies v Bennison (shot cat)
Not limited to entry by a person can be transient things projected over or in
land: Davies v Bennison. Includes failure or refusal to leave the land (after
reasonable time). Continues until rectified. Interference - As long as it interferes
w/ what you might want to do, does not matter whether it does interfere with
use/enjoyment: LJP Investments v Howard Chia Investment; Davies v Bennison
where bullet was fired overhead, Graham v KD Morris - where crane jig was
overhanging. Gazzard v Hutchesson (tree).

iv. Statutory Authority: SA to trespass must be thorough and clear and

unambiguous language general language is insufficient: Coco v R
Remedies / Damages: Actionable per se nominal damages. Compensatory
damages (Where natural consequence of the trespass available: Hogan v
Aggravated for conscious and contumelious disregard of P; for affront and
Exemplary: to punish.
Injunction (must prove balance of convenience in favour of P and that common
law damages are inadequate),

Self help: if withdraw consent must allow a reasonable time to leave and then
may remove with no more than reasonable force (danger of battery).
P will have an action in Negl. if P can show on the balance of probabilities
(Barnett v Chelsea & Kensington Hospital) that a duty of care was owed by D,
that D breached that duty causing Ps loss, which was reasonably
foreseeable/not insignificant.
Elements: Onus is P throughout. D to show defences

A duty of Care owed to P: Is it RF that any kind of carelessness by D

might cause some damage to P or a class of person to which P belongs?

Established Classes/Categories:
1) Road Users: Broadhill v Young
2) Driver/Passenger: Cook v Cook
3) Doctor/Patient: Rogers v Whitaker
4) Employer/Employee: Chaplin v Dunstan Ltd, Smith v Charles Baker
5) Occupier/Invitee: Heaven v Pender
6) Manufacturer/Consumer: Donoghue v Stevenson (PI and
consequential nervous shock)
Novel Categories: if not an established category then need to look at
analogous cases. Different cases give rise to different problems in determining
the nature and scope of a duty of care. Identify the type of harm then consider
the characteristics of the conduct and the nature of the relationship
Sullivan v Moody. Need to balance Ps interest in protection from harm with Ds
interest in freedom of action. Kirby, Gummow Tame,Annetts.
Pure Nervous Shock No physical impact
A. Originally only claimable if consequent upon Ps own injuries Victorian
Railway v Coultas
B. Extended to those present in zone of danger and placed in fear of
personal injury Dulieu v White
C. Actually present and/or injury/endangerment of close relative + rescuers
Hambrook v Stokes.
D. Then extended to those who experienced the immediate aftermath
involving a loved one. Jaensch v Coffey (both went to hospital)
E. Secondary hearsay victims Hancock v Wallace (never attended accident
or hospital, 3rd party communication sole source of info. Father and son
had very close relationship), Annetts
Elements: Australian Stations v Annetts
1. Recognised Psychiatric Illness
2. D ought to have reasonably foreseen that a person of normal fortitude
might have suffered a recognised psyc illness if reasonable care was not
3. In determining foreseeability balance the following factors
a. Was mental harm suffered as a result of a sudden shock (dont
exclude if absent, not an accumulation overtime.)
b. Was P at the scene or in the aftermath, and witnessed with unaided
senses (Hearing is sufficient: Petrie v Dowelling went to hospital, did

not see, but told child dead; Hancock v Wallace not at accident, not at
hospital told over the phone. Seeing: Alcock it is insufficient to see it
on T.V. if individuals cannot be identified, limited to those present.
Aftermath: Jaensch v Coffey only saw victim go into operating room;
Spence v Percy aftermath limited by time; victim after 3yr coma is to
far removed in time; Alcock- identification at morgue is not.
c. Pre-existing antecedent relationship btw P and D (main factor in
d. Nature of relationship btw P and the victim. (close ties and affection,
e. Gruesome factor to P (identifying mutilated body etc Annetts, Hancock)
Statutory Modifications: Law reform act 1994: Parent/ Spouse of person
negligently injured or killed has an automatic right. Other family members must
be at the scene. Motor Accidents Act 1988: Only injured driver passenger or
person present or immediate relatives at scene of the accident can claim
Omissions (Nonfeasance) Liability of Governments and Statutory
No general liability for omissions: - Stovin v Wise
Pre-existing protective relationships: Teacher/Student Richards v Vic.
Eer/Eee Paris v Stepney Borough Council. Occupier/Visitor Romeo v NT
Conservation Comission, Prison Authorities L v Cth.
Duty to prevent 3rd party harming P: Parents to control children Smith v
Leurs. (no breach b/c tried to stop child; It is not a guarantee of safety, but an
obligation to act reasonably under the circumstances), Curmi v Mclennan
parent liable because gun was readily available to child; Hotel has duty to
patrons Chordas v Bryant (no breach b/c no prev. indicative violent behaviour)
Wormald v Robertson: hotel liable because offender had been complained
Statutory Authorities: Key Principles per McHughJ, Crimmons and Barclay
Oysters v Ryan
1. Is it reasonably foreseeable that any kind of carelessness by the SA might
cause some damage to P or a class of person to which P belongs? If no,
then no duty
2. Was the SA in a position of control over P or a class of persons to whom P
belongs rather than the public at large? if no, then no duty (Pyrenees:
council owed duty to ensure fire hazard repaired. Brodie)
3. Was P vulnerable? Ie couldnt protect own interest, if no then no duty
4. Did D know or ought to have known that there was a risk to P or class of
person including P rather the public at large? if no, no duty.
5. Would such a duty impose a liability in respect of the policy making or
quasi-legislative functions? If yes, no duty (Gleeson, is this a justiciable
issue, Sep of Powers)
6. Is there any supervening policy reason that denies the existence of a duty
of care? If yes, no duty (Sullivan v Moody, No DOC to TP parents by
doctors. To find a duty would be to conflict with other rules in existence. Eg
Paramount duty to child based of Statute)
Industry Finance Committee

Is there a duty to exercise powers:

a) Pyrenees Council v Day: Council failed to follow up an order directing
tenant to have fire place fixed. Fire broke out and damage neighbours.
Council owed duty to neighbours b/c i)Council had specific knowledge
ii)power to prevent it iii) P was vulnerable; so power to prevent amounted
to duty.
b) Perre v Apand P/L: P may recover if: i) A particular class of people at risk
ii) class is vulnerable and unable to protect itself iii) it was only a minor
variation on the rule the required property damage (incremental
c) (Barclays) Ryan v Great Lakes Council: No absolute duty owed by SA;
Was a policy decision to decide how the oyster industry was to be
regulated. The councils ultimate control and regulation of the industry
was insufficient to support a private duty of care to the plaintiffs; also, no
reliable test for Hep A.
d) Sutherland Council v Heyman: Specific Reliance i) when SA acts in such a
way as to lead P to believe that it will exercise powers for his benefit, and
then P acts to his own detriment in reasonable reliance. Mason J- General
Reliance; SA is liable where it ought to forsee: i) P reasonably relies on D
performing the function and taking care not to do so; ii) P will suffer
damage if D does not take care.
Is there a duty to exercise reasonable care: Sutherland Council v Heyman:
no duty exists when making policy decisions, but duty exists when operational
decisions. The level at where the decision is made determines if it is
policy/operational. Policy involves finance, social and political decisions. Duty
may be applied to action/inaction involving administrative decision, professional
opinion, tech standards or gnrl stdrds of reasonableness.
Land Managers:
Nagle v Rottenest Island Authority: P hit submerged rock. Held: duty owed and
breached. Occupier promoted area for swimming, should have at least erected
a sign, deterring diving.
Wilmot v Sth Aust: Duty to trial bike riders not breached b/c never promoted use
of tracks. Also policy decision not to close off tracks.
Romeo v NT Conservation Commission: 15yo fell down cliff. Held; no duty fence
where danger is obvious not hidden. Care should be assessed with
reference to nature of the land, extent of use and character of people
who enter. Duty should only change when authorities own positive
conduct creates a risk of injury or special relationship arises. Adopted the
common sense approach.
Saroukas v Sutherland Council: Diver injured, duty breached because signs
erected were not in pictorial form and diver could not understand them. Found
not liable
1. RF
2. Relationship btw parties/posns occupied at time.
3. Nature of Ds conduct/lack of
4. Nature of Ps harm/degree of vulnerability
5. What was the purpose of the legislation

Pure economic Loss: The Dredge Willemstad- Pipeline belonging to primary

victim ruptured, P normally used the pipeline and recovered costs for alternate
means of delivery even though he had no suffered physical damage. P won
because D had peculiar knowledge that P in particular would suffer economic
loss, not merely a class of persons.
Driver to father of dead passenger Hancock v Wallace
Employer to parents of dead e/ee Australian Stations v Annetts
Doctor to parents of patients for psychological injury NO duty Sullivan v
Solicitor/Beneficiary in will. Owed a duty to testator because their interests
coincided. Hill v Van Erp:

Breach of that Duty: A person is considered to have breached their duty

of care when their conduct falls below that expected of reasonable person
in the same position as the defendant Bligh v Birmingham Waterworks

Standard of Care: The standard is that of a reasonable person in the same

position as D Objective test modified with subjective elements

Mental State No insanity; P was insane but judged on the basis of an

ordinary, sane person. Adamson v Motor Insurance Trust. Stroke (Roberts
v Ramsbottom) or coughing fit (Leahy v Beaumont), still negligent.
However bee sting (Scholz v Standish not negl)
2) Age- Minors are judged on their ability to foresee (A 12 yr is judged as a
12yo) Mchale v Watson; But a minor who engages in dangerous adult
activities must conform to that standard of a reasonable prudent adult. Old
age shouldnt place themselves in a position where agility is required
3) Skill- A person must exercise the level of skill they claim to have. Phillips v
William Whitely. D will be judged according to a higher degree of skill
when he actually possesses that skill level, Stokes v Guest, Keen &
Nettlefolds. A doctor must give warnings if the patient attaches significant
risk to it (1/14000 dam to eye). Rogers v Whitaker. Doctor is not negligent
if he acts in accordance with a practice accepted at the time as proper by
a responsible medical body, even though other doctors accept a different
practise. Bolam v Friem Barnet Hospital: The Bolam Test not consistently
used in Oz.
4) Ps Peculiar Knowledge & Consensual Relationship with D: The SOC
changes with the r/ship btw P & D; the r/ship is modified by Ps knowl:
Cook v Cook normally personal skill is irrelevant, but P knew that D was
learning to drive, so Ds SOC was that of a reasonable learner driver.
It is irrelevant if D did everything they thought necessary if a reasonable person
might have done more

A risk of injury that is remote in a sense that it is extremely unlikely to occur

may nevertheless constitute a foreseeable risk. Ie a risk that is not far fetched or
fanciful is real and therefore foreseeable (Wagon Mound) Wyong Shire
2) Was the response of D to this risk reasonable (The Burden of Taking
Precautions)?: Need to balance the magnitude of the risk against the burden of
taking precautions. Ie Did Ds conduct fall below that standard:
Calculus of Neglect (Bolton v Stone)
1) Probability of occurrence: The risk of injury must have been
foreseeable, not far fetched or fanciful: Wyong Shire Council v Shirt,
Wagon Mound. Would it occur to mind of a reasonable person Bolton v
Stone. Nagle v Rottenest foreseeable risk
2) Seriousness of Harm/Gravity Greater the risk of harm to P the greater
the precautions required to be taken by D Paris v Stepney Borough
3) Justifiability/Utility of Ds act Social vs. Indl utility if D acted for ind.
utility then breach factor. Emergency vehicles (social utility), did D exercise
reasonable care in all circumstances. Is there a social utility which
overrides failure to take precaution: Watt v Herfordshire City Council
(unsecured jack transport; saving lives)
4) Burden of taking Precautions: Onus is on P to show there were
reasonable measures available to D; if shown, onus shifts to D to show
they were unreasonable/impractical in the circumstances: Caledonian
Collieries v Spiers. Romeo v NTCC (dont need sign where obvious risk).
The cost of precaution as a whole is relevant: Wyong Shire Council v
Shirt; Nagle (signs are low cost)
5) Professional/Customary/Statutory Standards: Common Practice isnt a
defence; Thomas v Smith: Shipbuilders. Breaking statutory standard is
evidence of neg but not proof. Tucker v Mcann: Breaking road rules.
6) Dangerous nature of activity: Acceptance of risk by P Agar v Hyde
(trill from power), Willmot. Obvious nature Woods v Multi-Sport
7) Current state of knowledge of D about risk
8) Anticipation of carelessness of others: need to take into account that
people may not take proper care for themselves Nagle, Bus v Sydney
City Council. However trend towards ind. Responsibility. Occupier is
generally entitled to assume that most entrants will take reasonable care
for their own safety Kirby, Romeo
9) ??Burnie Port Authority v General Jones: In some cases the risk will be so
high, that the SOC will amount to a virtual guarantee of safety, giving rise
to a non-delegable duty to take reasonable care (subcontractors). Virtually
strict liability.

Has Standard been Breached:

2 Tier Test: Wyong Shire Council v Shirt
1) Was the risk of injury to the P reasonably foreseeable (Magnitude of
Risk)?: Reasonable foresight that the kind of carelessness by D might cause
some kind of damage to P, or a class of persons including P.

Damage: Did P suffer actual damage? Damage is gist of negligence

Causation: Having established that D was neg, P must also show on the
balance of probs that Ds neg caused the injury: Barnett v Chelsea &
Kensington Hospita (Arsenic; would have died anyway)l. P must prove a
relationship btw their damage and Ds breach. Did Ds carelessness on the
balance of probs. materially contribute to, or increase the harm to P.
But for Ds wrongful conduct, there wouldnt be this damage Barnett.
BF Test insufficient in cases where there are multiple causes. March v


But for test. Merely establishing P to

be at the scene of the acc is insufficient to establish a causal connection,
unless it materially increases the risk of i. - McKiernan v Manhire
1) McKiernan v Manhire: Where P tripped in the hospital while recovering
from her primary injury suffered as a result of Ds neg, held that tripping
couldve occurred anywhere, it was not caused by being at the hospital.
2) Pyne v Wilkenfield: D held to have caused further injuries when P
tripped while wearing neck brace. D had increased the risk, b/c P had to
wear brace.
3) Queensland v Keeys: An officer suffered NS after being shot at, held
failing to warn him of the threat made against the unit, the commr had
materially increased the risk of serious injury, cause if officer had
known, would have taken precautionary measures.

ii) Where there are multiple causes, for P to discharge the onus of proof, he
must show one of them is the material cause:
Bonnington Casting v Wardlaw: Fumes had materially contributed to Ps
disease. Non-tortious and tortious(e/er liable for) fumes were inseparable. Court
drew conclusion in Ps favour
McGhee v National Coal Board: (dermatitis from brick kilns, e/er didnt provide
showers) If Ds breach creates a risk and injury occurs within the area of that
risk, then D should be liable.
Wilsher v Essex Area Health Authority: Rejects material cause test and states
that must prove fault causing damage. Explained McGhee as another
favourable inference finding for P
Australian Position: Bennett v Minister of Community health, Chappell v Hart:
used McGhee. Is the later subsequent event the very kind of thing that you
would expect to happen. Is 2nd event RF as result of 1 st. (wont be Novus actus
iii) Current Australian Position, the Legally Significant test: a more
complicated BF test. They ask, a) was it a legally significant cause of the
damage, b) about effects on/from policy considerations, and c) if the hazard was
increased by Ds actions (What harm is it that D owed a duty to guard
iv)Where D pleads Novus actus interveniens: A new intervening act breaks
the chain of causation: If the subsequent injury is a predictable consequence
of the primary injury and was likely to occur even without the intervening act,
this defence can not be relied upon to protect from subsequent injury: Adelaide
Chemical v Carlyle Where P was burnt by acid, then did not follow medical
advice resulting in further serious infection. This was NAI, in that the free and
voluntary act of Carlyle led to the result, breaking the chain of causation.
Subsequent intentional action of a third party. The Oropesa O negl, hit Ps
ship. P sent lifeboat to see O. lifeboat sunk, and Ps son died. P sued O saying
if wasnt for your negl we wouldnt have sent lifeboat to see you. O argued your
decision to send boat over breached chain. Held doesnt break chain if it is
exactly the type of incident that you would expect to happen. And after accident
it is RF that they would send someone over.

Subsequent negligent conduct of a third party, the chain will be broken

unless the third partys negligence was RF.
i) Chapman v Hearse where a doctor attending a crash was struck by a car
driven negligently by a third party, held that it is RF that a volunteer will be
injured by anothers neg during a rescue.
ii) Bennett v Min comm. Welfare Where D failed his duty to seek legal advice for
P who was injured in a state ward, and subsequent to his release P received
incorrect and neg legal advice about right to comp from D. Held 3Ps negl
advice was not intervening act, because the reason it had to be sought in the
first place was because of Ds orig neg.
iii) Medical negligence: Mahoney v J Kruschich: Worker received negl medical
treatment for injury suffered at work due to bosss negl, held the boss was liable
for further complications because it is predictable that negligent med treatment
will be given. Neg Med treat only an intervening act when inexcusably bad.
(Gross negl)
Subsequent Deliberate Conduct by P:
Yates v Jones: P injured in car accident, started taking heroin allegedly to ease
pain. Held Ps addiction caused by pusher and addict not D. Different if
addicted to hospital pain killers.
State Rail Authority v Wiegold: P injured at work, receiving workers comp but
worried about supporting family so started to grow marijuana as alt.
income. Sued D for negl causing his imprisonment. Held: D not liable
(Kirby dissented saying but for was appropriate)
Havenarr v Havenaar Where P became an alcoholic after and accident and
sued for it, he claimed it was to relieve pain, held that voluntary consumption of
alcohol breaks the causal connection unless there is no other way to relieve
Subsequent Negligent Conduct by P:
March v Stramare: P drink driving. Where subsequent event is the very thing
that D should have taken reasonable care to guard against then the subsequent
event is not regarded as a novus actus.
The Requirements of proof:
Quigley v Cth: P failed to discharge the onus of proving a causal connection
between Ds negligence and his injury, because he had not adduced any
evidence to show that he would have used the services of a second crew
member had he been provided.
McLean v Tedman: D bore the evidentiary onus of showing that the suggested
system of work was not reasonably practicable because the employees would
not have used if it had been provided.
5. Remoteness ***Wyong v Shirt
To recover, P must show that the damage suffered, is not too remote in law:
Previous test: D will be liable for al damage that was a direct result of Ps
Negligence. Re Polemis
Current Test: Is it reasonably foreseeable (not far fetched or fanciful Wagon
Mound) that the kind of carelessness by D would cause the kind of damage to P
or class of person to which P belongs Hughes v Lord Advocate: Further the
extent of the damage or the precise manner of damage is irrelevant.
***Civ Liab Act 2003: RF Not insignificant.

Kind of Damage: The precise concatenation of events need not be RF. So long
as the individual events are foreseeable, dont have to RF the exact same
sequence Chapman v Hearse (Dr run over by H after stopping to help C, who
negl injured himself. Held C liable for Dr injuries as well)
Take broad approach. Ie burns, not burnt by explosion of lamp (Hughes v Lord
Versic v Conners: D negl driving caused P to flung out of car. Ps head became
stuck in cutter and due to rain he drowned. Held D liable b/c even though
drowning is not a foreseeable risk of careless driving, death itself is
Nadar v Urban Transit Authority: After an accident the boy develop psych illness
partly from over-protectiveness of parents. Foreseeable that an accident to a
10yo would bring about a reaction from his parents and even if his condition
was party attributable to their reaction, this was itself foreseeable.
Egg Shell Skull Rule: Smith v Leech Brain - If P has shown the damage was
reasonably foreseeable, then D is liable for any consequential damage which
results because of Ps peculiarities. Richard v Victoria: Teacher failed to stop
fight, boy knocked on head resulting in paralysis because of pre-existing
condition. D liable
6. Defences: To be shown by D
Contributory Negligence: Where Ps own carelessness contributes to the
damage suffered. Partial defence allows for apportionment of damages (s.10
Law Reform Act 1995) Ps negligence need only contribute to the harm not the
accident Froom v Butcher (was it a cause of the damage not accident)
1. P was at fault/negligent: P conduct was below the standard of care (Bligh v
Children: can be CN but reduced standard of care McHale v Watson, Bligh v
Bligh (b/c told not to play with electricity) McHale: kids engaged in
dangerous adult activities conform to reasonable standards of adults.
Momentary thoughtlessness by employee: distinguish mere inattention or
inadvertence. Commissioner for Railways v Ruprecht: P lost legs when stepped
onto railway line without looking. Held: P was not CN due to such things as
inattention born of familiarity and repetition and the mans preoccupation with
the matter at hand.
Failure to observe statutory regulations, highway rules: Breach of rules is not
conclusive as to whether P is liable for CN. Sibley v Kias You may be negl
even if comply with standard (e.g. if should have slowed down; in wet dark
conditions should travel below speed limit. NO seatbelt or helmet, will be CN is
it contributes to damage) Froom v Butcher.
Agony of the moment; sudden emergency rule: if Ds negl places P in a position
of choice btw 2 dangers the reasonableness of Ps acts is judged by weighing
the degree of inconvience and risk to which P was subjected by Ds negl
against the risk P took to escape it Caterson v Comm for Railways. (held not
CN when jumped from train to get back son who was left behind; train was
going slowly enough to justify jumping [per Gibbs CJ]) Also: Shelley v Szelley: P
said D was being negligent by veering off the road, in spite of P grabbing the
wheel. P didnt know the tire was flat! D smiled when he expressed concern.
D couldnt succeed with respect to CN, b/c Ps actions were excusable under
the circumstances.

2. Causation: damage must be a RF consequence and contributed to by Ps

negl. Causal link btw Ps negl conduct and Ps damage Gent-Diver v Neville
3. Ps injury must be within the area of risk created by Ps negligence.
Jones v Livox Quarries Standing in the position on the back of the excavator
increased the risk of his receiving injury in the way he did and P should have
foreseen this.
Apportionment of Damages: If P is CN then % split based on responsibility of
each party in departing from the reasonable person standard and comparison of
the relative importance of their respective acts in causing actual damage
Pennington v Norris. Cant have 100% reduction Wynbergen v Hoyts
Volenti Non fit Injuria: P consents to the risk of injury. voluntary assumption or
risk. Compete defence. D must prove that P perceived the existence of risk;
fully appreciated the danger and that P voluntarily accepted risk: Smith v Baker
1. Perceived existence of danger: D must establish that P had knowledge of
the facts creating the risk. Smith v Baker and Sons P consented to dangerous
work but not to rocks falling on him from a crane. ICI v Shatwell: P explicitly and
repeatedly told not to test explosive the wrong way, but did so. D successful on
2. Fully appreciate the scope of the risk: D must show P accepted the risk of
negl. Must be acceptance and physical (injury) and legal risks (lack of
reasonable care) Rootes v Shelton
Water skier accepts dangers of sport but not negligence of driver/watcher.
Raineri v Raineri: (learner driver) no volenti b/c accepted risk of inexperience
but not carelessness
3. P voluntarily assumed risk: Nettleship v Weston - Consent must be real
free and voluntary. Rescuers: It is foreseeable that a person will come to the
rescue; volenti cannot be used as against a rescuer. Moral obligation means
they arent free to choose Haynes v G Harwood & Sons.
Implied consent: Intoxicated drover/passengers
1. P sober and knew D intoxicated P volens the risk (consents) Insurance
Commissioner v Joyce, Roggenkamp v Bennett Volenti in both cases.
2. P knew D was going to get intoxicated P may volens the risk
3. P too intoxicated to appreciate risk P not volens but may be contributory
Exclusion Clauses: if the r/ship between P/D did not arise from contract, the
exclusion clause is irrelevant: Maclay v Moore, Birch v Thomas
Illegality: Joint illegal enterprise- Is the act causing injury sufficiently associated
with the criminal conduct Smith v Jenkins
1) The fact that P is acting illegally is no absolute defence to negligence:
Henwood v Municipal Tramways Trust childs head out window, against
statute, r/f so no defence on illegality
2) Illegality affects the relationship btw parties and may negate existence of
DOC: Gala v Preston
3) Joint criminal enterprise is a r/ship of special nature that does not give rise
to a DOC. Italiano v Barbaro.
4) Cases of illegality in safety problems give no reason why DOC can be
negated. Progress Properties Ltd v Craft:


Remedies: Might be affected by whether P mitigated their loss.

Compensatory Damages, for actual damage suffered
Exemplary Damages, to punish D, if shows a conscience and
contumelious disregard for Ps rights.
c) Aggravated Damages for hurt feelings, indignity humiliation etc
But For Test
Unreasonable and substantial interference with use and enjoyment of land.
Need actual damage. Indirect i) Intentional ii) Unintentional. Right to privacy is
not protected in nuisance Victoria Park Racing v Taylor No right to freedom
from view
Onus on P to prove interference. Onus on D to prove action reasonable. Else P
to prove elements then D to prove defences
Private nuisance is an unlawful interference with the use and enjoyment of
land Hargrave v Goldman
P must show:
1. Title to sue
2. Interference with recognised legal right
3. Unreasonable and substantial interference with land
4. Damage must be reasonable foreseeable

e) Contributory negl. Unlike to succeed.

Substantial: Walter v Selfe interference with physical comfort of human
existence is judged not merely according to elegant or dainty modes of living,
but according to plain and sober and simple notions. Bamford v Turnley Allow
for give and take. One nights sleep may be substantial Munro v Southern
Unreasonable: Property damage is prima facie unreasonable Halsey v Esso
Court balances the right of enjoyment versus the defendants desire to
undertake the activity the rule of give and take. Objective test Walter v
Bamford v Turnley factors:
i) Locality: Mckenszie v Powley, St Helens Smelting Different standards
for residential/industrial areas
ii) Timing: Activitty in CBD cons nuisance during bus hours: Wherry v KB
Hutcherson whilst activity in a residential area constitutes nuisance after
bus hours: Seidler v Luna Park Reserve Trust, Munro v Southern Dairies
iii) Duration: long=nuisance, Work that is of a temporary nature is
generally held not to be a nuisance: Harrison v Southwark. However even
if it is temporary, if it is at an unreasonable time then it will be held a
nuisance: Andrea v Selfridge Co.

1) Locus Standii: P must have a proprietary interest in the land: Oldham v
Lawson; Licensee (UK says no Hunter v Canary Wharf (1997), Aust cases
before 1997 have said yes, relying on overturned UK case of Khorasandjian
Deasy Investments v Montest so might change) but licensor/lessor is.

iv) Precautions taken by D: has D taken steps to eliminate nuisance

Who can be sued:

A person who creates a nuisance Fennel v Robson Excavations doesnt

have to be owner

Authorises a nuisance De Jager v Payneham & Magill Lodges Hall Hired

out hall for function, liable for nuisance b/c hired out the premises for a
purpose involving a special danger of nuisance

Adopts a nuisance Sedleigh-Denfield v OCallaghan

Knew or ought have been aware of nuisance Torette House v Berkham

werent liable b/c neither aware nor by reasonable diligence could have
discovered the conditions and the possible nuisance.

iii) Sensitivity of P: Must show that an ordinary person would have been
affected. Eggshell skull rule does not apply; If affects an ordinary person,
then the special damage caused by the sensitivity is recoverable:
Robinson v Kilvert; Mckinnon Industries v Walker.

2. Interference with recognised legal right:

The land itself in its natural state

Property or chattels associated with the land,

The right to enjoy the land.

Privacy not legally recognised interest: Victoria Park Racing v Taylor; but
Plenty v Dillon: (obiter) watching and besetting.
3. Nature of interference. Must be Substantial and unreasonable. The
interference can be physical damage or interference with enjoyment, eg noise,

6) Remedies:
a) Injunction: where continuing nuisance; if damages are inadequate and
balance of convenience in favour of P.
b) Damages: compensatory for past harm only. Reduction in property value is
not recoverable, not considered to be material damage to property. Account for
special damage as a result of undue sensitivity. Possibly Aggravated or
c) Self Help: Abate a nuisance (cost cannot be recovered) persons tree
overhanging the house can cut branches as long as give back: Lemmon v
Webb. But cant lean over fence. Trespass for abatement only allowed in
emergency. If no emergency should give notice, if want trespass to abate.
Actionable by private individuals in tort only if they suffer special and particular
damage over and above the rest of the public.
Defn: An activity that materially affects the reasonable comfort and convenience
of a class of the public by interfering with a public or common right: AG v PYA
Interest protected: Public rights (clean waterways, blocked roadways, clean air)

v) Motive: Malice: An interference that would otherwise be unreasonable

is rendered unreasonable if it is malicious: Christie v Davey ,Hollywood
Silver Fox Farm v Emmet

4. Damage must be reasonably foreseeable: Wagon Mound

5. Defences:
a) Approaching the nuisance is not a Defence. Stuges v Bridgman
b) Prescription: Privilege to commit a nuisance may be acquired after 20 years
continuous exercise - Stuges v Bridgman. Eg: Kate prove that the lighting and
the heating have a unreasonable and unsubstantial for twenty years, not only to
lucy but to the previous resident.
c) Statutory Authority: Provision must apply to the act in question - Allen v Gulf
Oil Refining But if duty could have been performed in another way to avoid
interference, the defence does not apply: York Bros v Commisioner for main
d) Consent: tolerating is not consent

P must show:
1: A class of people affected
2: Locus Standii
3: Interference is unreasonable.
Onus: P must establish that there is a nuisance. P must establish causation by
D. The onus then shifts to D to demonstrate and excuse.
Who can sue?
1. The attorney general as protector of common rights
2. Someone with the attorney generals fiat
3. A private P who has suffered special damage above that suffered by the
rest if the community.
Special interest: P must show that they suffered a particular or special loss
which is different to that suffered by the public at large or which is greater than
the loss suffered by the public at large. Special damage can be personal injury,
property damage, excessive noise or economic loss.
Economic loss Taylor v City of Perth Council had no power to block highway,
so were liable for nuisance and loss to business who was adjacent highway.
Inconvenience from an obstruction on highway Boyd v Great Northern Railway
Company Doctor held up at crossing for 20 min, suffered pecuniary loss and
peculiar damage (loss of time/money) Walsh v Ervin: Farmer whos path along

road was blocked; held no pecuniary effect. Only inconvenience and delay in
having to transport via indirect route.
Crowds: Silservice v Supreme Bread If Ds business attracted crowds could
by some reasonable means prevent the damage and he does not adopt those
means then he will be liable but note that a D carrying on business in suitable
premises and in a normal and proper manner will not be liable for the nuisance
caused by a crowd. Ie sale crowds, business would have to offer something
more than a normal sale.
1. D must have a possessory interest in land
2. D must have knowledge of the nuisance to the public
3. D must have the means to abate it
4. D must fail to take appropriate means to abate it

Provision of equipment by employer or worker Hollis v Vabu

Is the task ongoing or one off
The amount of remuneration and how it is paid
Does eer deduct tax and super
The hours of work and provision of holiday and sick leave
The method of termination
How integral are they to the organization Stevenson, Jordan & Harrison v
MacDonald & Evans
Exclusivity of services - Stevens

3. In the course of employment: includes carrying out their work in an

unauthorised or improper manner. Century Insurance v Northern Ireland Road
Transport Board unloading petrol tanker while smoking causing explosion.
Possibly broader test of sufficient connection with employment Lepore, Samin

Statutory Authority: Authorised by Parl. if duty could have been performed in
another way to avoid interference, the defence does not apply: York Bros v
Commissioner for main roads.

Express prohibition: If the prohibition merely regulates the mode or manner in

which the act is to be performed it is will still within the course of employment
Rose v Plenty contrary to instructions milkman used underage labour, was in
the course of employment.

Prescription is not a defence in public nuisance

Frolic doctrine: Harvey v ODell workers on unauthorised lunch break caused

accident were held to be acting in the course of employment. B/c they were
advised not to take lunch with them, implying they would have to go and buy it.
Hilton v Thomas Burton Workers left early held not acting in the course of

Remedies: Injunction
Damages: Compensatory, Exemplary Walsh v Ervin, where the nuisance was
motivated by malice or a particularly outrageous disregard for public rights.
A secondary, derivative claim not an independent cause of action.
Where one person is held liable for the tort committed by another. E/er is liable
for the tort of the e/ee committed in the course of employment. Vicarious liability
is always strict liability and must be distinguished from personal liability, which
requires fault - Not absolute liability.
Justification: Hollis v Vabu need to provide a solvent Defendant. Capacity of
e/er to absorb cost of liability through insurance. e/er gets benefit of e/ee service
to advance their interest so they should bear the loss incurred within the
enterprise. Acts a deterrent to encourage E/er to prevent accidents.
1. Commission of a tort: applies to all torts not just negligence.
2. By an Employee: Contract of service. Cf to independent contractor who has
a contract for services. Multi-factor test: Stevens v Brodribb, Sawmilling Co Ltd

The nature and degree of control the eer has. The right to control Stevens

The nature of the task undertaken Skilled/unskilled

The freedom of action given to the worker to perform the task can
worker delegate

Horseplay by servants: Hayward v Georges Slapping waitress on the back

causing her to fall was within the course of employment
Cth v Connell pushing a naval apprentice off bridge in the course of skylarking
was with course of empoyment.
Wilful torts Assaults: Poland v John Parr servant struck suspected theft was
within course of employment
Petterson v Royal Oak Hotel barman threw glass keeping order in bar was
within course of employment
Deatons v Flew Barmaid threw glass private act of retaliatory self-defence
not in course of employment
Canterbury Bankstown Rugby League Football Club v Rogers: Head high tackle
in the course of employment.
Wilful torts: Dishonesty by servants: criminal conduct is not necessarily outside
the scope of employment. Morris v Martin & Sons
Sexual abuse by teachers: NSW v Lepore, - In determining whether conduct
was in the course of employment, it is necessary to look at the nature of that
which the employee is employed to do on behalf of the eer. Does the act have a
sufficient connection with the employment.
Rich & Samin v State of Qld, minister and DArcy the assaults were
independent & personal acts of misconduct by DArcy. They were in no sense
capable of being regarded as methods of conducting the teaching function, but
were done in utter defiance & contradiction of it & his duties as an eee of the

Justification: Its a tradeoff btw two innocent parties. The injured party and
innocent eer.
Primary claim, an independent cause of action. Only in Negl. And fault must be
proved by P Rich v Samin, Lepore, Used to justify the imposition of liability on
one person for the negl of another to whom the former has entrusted (or
delegated) the performance of some task on their behalf. It is a duty to see that
care is taken.
Elements: P must show
1. negligence by tortfeasor (usually a IC or outsider to company)
2. duty of care owed by D to P
Based on nature of relationship, D accepts special responsibility(control), P has
a reasonable expectation that care will be exercised (special vulnerability or
Eer/eee: Kondis v STA ind. Contractor (eer cant be Vicariously liable)
operated crane which injured P an eee. Eer breached duty to ensure that there
was a safe place to work and that IC took care to adopt safe system of work.
Hospitals/Patients: Cassidy v Ministry of Health if their staff are negligent in
giving treatment, they are just as liable for the negl as is anyone else who
employs others to do duties for him.
Roe v Minister of Health even if not eees they are agents of hospital to give
treatment. Exception is consultants or anaesthetists selected and employed by
the patient himself.
Ellis v Wallsend District Hospital P organised private surgeon to use hospital
facilities, hospital not liable for non-delegable duty b/c it had low involvement,
just let them use facilities. Samios v Repatriation
Schools/Students: Cth v Introvigne (flagpole hit P) NSW v Lepore, Simon v
Qld, Rich v Qld onus is on P to show fault.
Occupiers&neighbours/visitors: Burnie Port Authority v General Jones D
owner and occupier of premises where IC was wielding. O occupied premises
to store frozen goods. IC negl caused a fire. Held: D owed P NDD that IC took
appropriate care. Note special dependence and vulnerability of P.

Provision of competent staff: Harrison v NCB liable if eer knows
eee likely to engage in conduct
2. Provision of proper plant, premises and equipment:
3. Safe system of work: General Cleaning Contractors v Christmas - It
is not reasonable to expect the individual worker to take the initiative
to devise and use precautions.
McDermid v Nayh Dredging Co Also duty to eer to supervise system in actual
operation to ensure a safe system
OConner v Commissioner for Govt Transport However no duty of constant
supervision if they have provided a safe system.

Justification/Policy considerations:

D is financially responsible person fully aware of its responsibilities

towards a class of person to whom P belongs.

D is already vicariously liable for the fault of its own staff and

D will usually have insurance against the vicarious liability



Fair Comment: about a matter of public interest that is made

honestly by a person who did not believe the statements to be untrue
and is not otherwise actuate by malice. Must be personal opinion
and honest. Can be biased or exaggerated so long as honestly
held. Carleton v Australian Broadcasting Corporation


Privilege: Absolute Parliamentary privilege, ministerial

communications, judicial proceedings, communication btw spouses.


Privilege: Qualified There must be mutuality btw publisher and

recipient. Ie the publisher must have interest or duty to publish and
the recipient must have an interest or duty to receive it. Interest or
duty can by private or public. Matters of public interest. Privilege will
fail if publisher is actuated by malice or the publication exceeds what
is reasonable.


Consent: Complete defence if it can be established that P in fact

agreed to the publication of the defamatory material.


Constitutional Protection: Political communications about a govt or

political matter. Publishers conduct must be reasonable, publisher
mustnt be aware it isnt true, and must not be actuated by malice.
Lange v Australian Broadcasting Commission

Slander (verbal or transient) or libel (written or permanent) Aim: protect
To succeed in defamation P must establish
1: Material was defamatory
2: It refers to P
3: It was published
4: D does not have a defence.
Who can Sue: any living person, or group of person and corporations.
Who can be sued: publisher (communicator) to anyone other than P, TV and
Newspapers who distribute or republish the defamatory material.
1. Defamatory Matter: Did the statement of D in its ordinary and natural sense
defame P
At CL: A statement of a kind likely to lead ordinary decent folk to think less of a
person about whom it is made Consolidated Trust v Browne. Innuendo can
also amount to defamation. 2 types: False (those that can be drawn by any
reader) true (appears innocent on its face but defamatory to those with special
Under Defamation Act 1889 (Qld) s.4(1) any statement which is likely to injure
Ps reputation, or Ps profession or trade or which is likely to induce other
people to shun or avoid or ridicule P. s5(1) any person who by spoken words or
audible sounds, or by words intended to be read either by sight or touch, or by
signs, signals gestures or visible representations, publishes any defamatory
imputation concerning any person is said to defame that person. Includes both
permanent and transitory forms it does not distinguish between libel and
2. Reference to P: It is not necessary that the statement actually includes the
name of the plaintiff, or was intended to defame anyone. Hulton v Jones. Obj
test Would an ordinary reasonable recipient of the statement take it as
referring to P
3. Was the statement Published:
Communication to anyone other than P. D either intends the words to be heard
or read by a TP or they should have foreseen this would occur Dow Jones &
Company v Gutnick. Defamation on internet occurs where material is

Justification: truth and public benefit truth in substance and

effect. Public benefit requires a value judgment as to whether the
public would benefit from the subject being discussed publicly.

Remedies: Interlocutory injunction to prevent publishing. Must show bal of

convenience in favour of P.
Damages Compensatory (for actual damage), aggravated (hurt feelings),
exemplary (deterrent).
Mitigation: apology or retraction may help mitigate losses though
the court cannot order an apology or retraction. Poor reputation before defaming
decreases damage. Truth and absence of malice. Defamation Act 1889 (Qld).
Civil Liability Act 2003 (Qld)

They allege a litigation explosion and increase in size of claims

They allege a crisis in availability and affordability of insurance
because of the alleged litigation explosion. Blame the law and the lawyers

Reform tort to reduce access to litigation and size of claims. limit

who can sue, limit who can be sued, limit the time to sue and limit what can be

In other words make it as difficult as possible for injured persons to

sue in tort.
Examples of insurance crisis

Major insurance companies have hit local governments with

skyrocketing insurance rates and even cancellations.

Increase in premium will increase the cost to consumers

Where will the children play? -local councils removing play

equipment for fear of being sued.
But note -accidents are going to happen and councils will not be
responsible where no blame.
Insurance industry tactics

Insurance companies unhappy with accountability imposed by the

courts so they have decided to fight on a different front shift focus to the
legislature to improve their position

Fire up the media and politicians with individual anecdotes and

horror stories

Newspaper reports publish headlines such as $467,000 for little

finger which leads people to believe that plaintiffs are winning large awards of
damages. (Usually no publication of the breakdown of the various components
of the award e.g loss of earnings, medical expenses, pain and suffering, loss
of amenities etc)
Perceived problems with the common law of torts

The inherent flexibility of the law of negligence numerous

competing policy considerations relevant to the distribution of losses. Factors
controlling the limits of liability e.g. duty of care standard of care
Foreseeability remoteness causation are fluid concepts. Negligence goes
through periods of expansion & retraction. Insurance industry argues:

outcomes are too unpredictable

There has been a significant erosion of the level of fault required to

shift losses & this has been fueled by a culture of blame.
Response by government

2002 Commonwealth government appoints an expert panel Panel

of Eminent Persons the Ipp Panel to examine a method for the reform of the
common law with the objective of limiting liability and quantum of damages
arising from personal injury and death.

The objective was to increase personal responsibility and reduce

societys culture of blame
Statutory changes to Common law negligence

Establish the criteria for breach

Change causation
Exclude liability for obvious risks and incorporate presumptions of


Eliminate proactive duties to warn of obvious risks

Eliminate liability for the materialisation of inherent risks

Civil Liability Act 2003 (Qld)

Does not apply where negligence occurred prior to 2nd December


Section 9 &10 Standard of Care - Breach

Section 11 Causation

Section 13 - Meaning of obvious risk

Section 14 Person suffering harm presumed to be aware of

obvious risks

Section 15 No proactive duty to warn of obvious risks

Section 16 No liability for materialisation of inherent risk

Section 19 No liability for personal injury suffered from obvious risks

of dangerous recreational activities

Section 24 contributory negligence reduces an award of damages

by 100%.

Section 35 Principles concerning resources, responsibilities etc. of

public or other authorities

Section 45 Criminals not to be awarded damages

Section 47 Contributory negligence presumed if the plaintiff was

intoxicated at the time of negligence.
Review of common law principles

Functions of tort law compensation & deterrence

COMPENSATION/Restorative Justice

Loss shifting should losses lie where they fall or should they be
shifted from A to B?
If losses are to be shifted on what basis?

Loss spreading spread the losses between a large group of people

who contribute premiums to an insurance fund

No-fault strict liability (shift loss from A to B even where B not at


Fault liability ( shift loss from A to B only if B can be shown to be at

fault) current system but limited by recent reforms

No liability - let loss lie where it falls

Fault v No-fault

No-fault strict liability (shift loss from A to B even where B not at


Fault liability ( shift loss from A to B only if B can be shown to be at

fault) current system but limited by recent reforms

No liability - let loss lie where it falls

The fault based common law system is a forensic lottery- legal

principles not necessarily uncertain but application of law is fact dependent

CL lump sum payouts are often inadequate

Transactions costs in shifting the loss time delays and expensive

Lawsuits protect us all

Lawsuits make society safer by deterring culpable manufacturers,

polluters, hospitals and others from negligent behaviour.

It does this by way of imposing economic incentives to become safer

and more responsible.

Also flow on effect others hear about the lawsuits and can modify
their behaviour
Fixing culture of blame

If there is a culture perhaps it is born out of a higher level of

awareness of legal rights and greater ability to enforce legal rights.

This is not a bad thing. E.g. note current focus on sexual and
physical abuse claims against religious, charitable and educational institutions.
These institutions should be held accountable for their wrongdoing. Two
purposes vindication of rights of victim & sends message to community
sexual abuse is unacceptable
Will tort law reform solve the problems?

No- reform of tort law already and premiums havent dropped

Courts have already corrected some of problems tort law is

inherently flexible liability issues expand and contract Negligence has grown
and developed and reflects social, economic, cultural and political changes

Problems are complex and will not be easily resolved. No further

progress until insurance industry gets its own house in order.
Future directions

Should Qld/Australia move to a no-fault system similar to New

Zealand/Sweden? Trade-off compensation reductions for no-fault benefits