Law of Torts - LLB - Study Notes PDF

Tort Law
What is a tort?
A tort is a civil wrong arising out of a breach of a duty imposed by law. This breach gives
rise to a personal civil right of action for a remedy not exclusive to another area of law.
Difference between a tort & a crime

• Crime is a public/community wrong, giving rise to sanctions in a specified code.
• Action in criminal law is brought by the Crown. Tort by the victims of the tort.
• The principle objective in crime is punishment, in torts it is compensation.
• Differences in Procedure - Standard of Proof
o Criminal - Beyond a reasonable doubt
o Torts - On the balance of probabilities
Similarities
• Actions arise from wrongs imposed by law
• Certain crimes are also torts eg trespass & assault
• In some cases the damages in torts may be punitive
• In some instances the criminal law may award compensation under criminal
injuries compensation legislation.
• Object of compensation is to place the victim in position before wrong occurred.
Intention
• Deliberate or Wilful conduct
• Constructive intent where the consequences of an act are substantially certain:
the consequences are intended.
• Where conduct is reckless, whether the consequences are reasonably
foreseeable.
• Transferred intent – (intent to hit A but hits B instead)
• When we speak of an intentional act, we speak of the wilful act, & the
consequences that follow.
Negligent
• When D is careless in his/her actions/conduct.
• When D fails to take reasonable care to avoid a reasonably foreseeable injury to
another.
Strict liability
• No fault is required for strict liability but by mere occurrence & causation.
Actionable per se
• Where it is not required to show proof of damge
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Copyright - lawexamnotes@gmail.com October 2007
Tort Law
Intentional Torts
1. Tresspass
2. Detinue
3. Conversion
Defences
1. Trespass
Trespass is actionable per se – no evidence of damage required
Elements
• Direct interference
• Voluntary/Intentional
• Without Consent of Person in Possession/ Other legal justifiable excuse
Trespass to Person
Trespass to the person includes:

1. Battery;
2. Assault
3. False Imprisonment
1. Battery
Battery involves an act by the defendant. It can be either intentional or negligent, that
causes direct physical interference with the body of the plaintiff.
The issue of consent or lawful justification is for the D to prove.
Elements
Actionable per se – no damage required and:
1. Physical contact
2. No requirement of Hostility
3. Positive Act
4. Direct and immediate consequence
5. Fault
6. Consent/Lawful Authority
1. Physical contact –
Any physical contact, it need not be violent, any contact will do;
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Collins v Wilcock (1984)

• Police went to take restrain a prostitute, though not in the course of an arrest.
He used force and she had not consented, she claimed battery, he argued no
hostility.
• It is distinguished from if the officer were arresting her because in an arrest
situation, the officer would be entitled to use reasonable force.
• The court held that there had been a battery, that the officer’s action, in taking
the woman by the shoulder constituted trespass to person. Any touching of
another person may amount to a battery.
• The judgment talks about how in daily life, we all must expect that we will be
touched by others eg if we get onto a crowded bus, however, in these aspects of
daily life, they don’t amount to a battery because there is an implied consent.
• However, taking the woman by the arm to restrain her went beyond the
generally accepted ways of eg getting someone’s attention or ordinary physical
contact, it would amount to a battery.
2. Hostility –
Collins v Wilcock (1984)
• Above – Shows hostility not a requirement
Cole v Turner (1704)

• ‘the least touching of another in anger is battery’ Holt CJ. Or if the act is ‘rude
and inordinate in fashion’
Boughey v r (1986)
• Doctor strangling gf for sexual pleasure. Court said hostility not required for
battery.
Wilson v Pringle (1987)

• 2 schoolboys involved in schoolyard horseplay,
• Plaintiff argued that the D had intentionally jumped on top of him and injured
him D argued horseplay and no hostility.
• Court said that there must be an element of hostility, looking at the old case.
What is this hostility? It does not mean ‘ill will’ or ‘malevolence’ when talking
about hostility, what is meant is an act that is against the plaintiff’s rights.
• This case also emphasises that there is an expectation that there will be some
physical contact in everyday life.
Marions Case (1992)

• Marion’s parents wanted to have her sterilised because her disability would give
her problems with puberty, and they thought it would be in her best interest.
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• The issue here was an issue of consent (obviously because Marion could not give
hers as intellectually disabled, so could the parents give it on her behalf)
• The HC said that every surgical procedure is a battery unless it is authorised,
justified or excused by law. There is no mention of hostility or ill will.
• (McHugh J) Hostility is therefore not a requirement for the tort of battery.
Rixon v Star City (2001) NSWCA
• Security guard had tapped him on shoulder and asked him to identify
himself, he was claiming battery
• Held social Touching is not battery. So Hostility is not a requirement but
social touching is not battery either.
3. Positive Act -
You cannot commit a battery by doing nothing at all.
Innes v Wylie (1884)

• D stood in a doorway, preventing P from going through the doorway.
• The court ruled that this will not constitute a battery.
Fagan v Metropolitan Police Commissioner (1969)

• D was a motorist accidentally drove his car over the foot of a police constable,
coming to rest on it. The officer then asked D to move the car off his foot. D
Refused. The officer said this constituted a battery. D said he didn’t intentionally
drive onto P’s foot
• Court held once the officer asked the man to move the car off the foot, and the
man did not do so, then there is a battery. Once the man become aware of it,
intent was formed.
4. Directness
There must be a direct link between the act of the plaintiff, and the contact with the
plaintiff’s person.
Note:
• If its Direct its Trespass if not its action on the case(negligence).
• Log example if log hits me its trespass as immediate wrong but if he leaves log
and I tumble over it its action on the case(negligence), as indirect.
Reynolds v Clarke(1726)
• D put rainspout on house from which water fell on walls of plaintiffs house
causing Ps walls to rot.
• Action failed because the harm was not direct.
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Scott v Shepherd (1773)
• D threw a lighted Squib, landing in the stall of one man, who picks it up and
throws it away, landing on the stall of another man, who also throws it away. It
explodes in the plaintiff’s face. P sues D who argues no direct link.
• Court held that the actions of those that threw the firecracker in between were
actions which were instinctive for their own self preservation; automatic. The
direct link was not ruptured. It was direct because the consequence of D’s
actions followed so closely upon D’s act, so as to be considered as part of the
act.
5. Fault
Trespass to the person is not a strict liability tort. D must be at fault. P must be able to
show this. The two important questions are:
a. Will negligence suffice or does the action have to be intentional?

In England, you cannot have negligence Battery
Letang v Cooper (1964)
• P was on a holiday in Cornwall, deciding to sunbathe in a carpark. D drives his
Jaguar into this carpark, running over P’s legs. D argued that he did not expect to
find someone sunbathing in the carpark.
• Court thought that it was not appropriate to confuse everyone with whether
battery is intentional or negligent. They said the tort of battery should deal with
intentional conduct, and the tort of negligence should deal with negligent
conduct.
Therefore, following Letang v Cooper, could not have negligent battery in England. Prior
to this, you could. The CA in England, Lord Denning in particular, thought that it was
time to tidy up the ‘convolutions’ of the common law. Australia did not followed this.
In Australia
Williams v Milotin (1957)
• P was a cyclist who was run over on the roadway by a negligent truck driver.
Truck driver was not deliberate in his actions but negligent.
• The HC said that the cyclist had two causes of action against the truck driver. He
had a cause for action in negligence, and also in battery.
Authority that both causes of action can be brought

McHale v Watson (1964)
• D was 12 years old who threw a sharp piece of steel in the general direction of P,
but not at P. There is no suggestion that he deliberately threw the object at P. P
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was hit in the eye, causing considerable damage. P sued in both the tort of
battery & negligence.
• One of the issues was whether the battery could be committed negligently.
Court said he had a cause of action in both. This creates a situation where there
are two causes of action arising out of the same set of circumstances.
(Negligence – court also held that the standard of care to apply is that of a
reasonable 12 year old, not a reasonable adult)
Note:
• However, we note the judgment of Kirby J in Platt v Nutt(1988) who rather likes
the English approach. He took the view that a negligent trespass should not be
the law in Australia today.
b. Who Must prove Fault?

The onus of proving lack of fault was on the D in the old cases. In England, the courts
decided that it was sensible for the plaintiff to prove that contact happened as the
result of D’s actions.
Fowler v Lanning (1959)

• English court held that the onus of proof for fault, lay on the plaintiff. P was shot
by shotgun pellets fired from D’s gun.
The HC has different views;

McHale v Watson (1964)
• The plaintiff need only prove the facts, and once the plaintiff had proved that,
then the onus of proving fault, or lack of, lay on D.
Williams v Milotin (1957)

• The HC said 2 causes of action here: negligence and trespass to the person.
• In the tort of negligence, the plaintiff must prove fault, plaintiff must prove
negligence.
• In Battery, the HC said that P only had to prove the facts, then the onus was on D
to prove lack of fault.
Note:
The problem in Australia, there are many of motor accident cases involving negligence
and battery. Sometimes the burden of proof may be on P, sometimes it may be on D.
Sometimes it may be on everyone. Therefore, there is an exception for highway cases.
The onus of proving lack of fault rests on D, except in highway cases, where P must
prove fault.
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Therefore, in non highway battery, the defendant may raise lack of fault as a defence
and bears the burden of proving that there was no negligence and no intetion. However,
in highway battery, the plaintiff must allege and prove fault as part of the cause of
action.
6. Consent/Lawful Authority
Consent of the plaintiff in most cases is a matter for defence in Australia. eg going to the
doctor for an inoculation against a disease, is consent to the ‘battery’. There are
situations other than the medical situations for example in sport.
Sports
Giumelli v Johnston (1991)
• Australian rules case where D had jumped up on P, putting his elbow out, coming
into contact with P’s face, fracturing his cheekbone.
• P alleged that D’s actions constituted a battery. D said that this should be
expected in a the game. (“if you don’t like the heat in the kitchen, then you can
leave”)
• King CJ said “the consent to the application of force in the course of the game
extends not only to force which is within the rules (certainly when a player goes
onto a field, he is consenting to force which is within the rules of the game) but
he also consents to commonly encountered infringements of the rules”.
• If he therefore knows that there are infringements of the rules which involve
contact, he consents to those when he runs onto the field. This cannot be taken
to include physical violence applied in contravention of the rules, by a player
intending to cause injury. There is a limit. But the limit does not stop where the
rules stop, this limit stops where there is physical violence applied in
contravention of the rules by a player intending to cause injury.
• P was therefore successful.
Canterbury Bankstown RLFC v Rogers (1993)

• Similar to above. P subjected to a high tackle
Medical Treament
Rogers v Whitaker (1992)
• P went to see D an ophthalmic surgeon to have surgery which would improve
the sight in her bad eye. She was concerned that something might have a side
effect on her good eye. D assured her that this would not be the case.
• He did not warn her however, of a very rare 1 in 14000 possibility of condition
that the good eye deteriorates in sympathy to the bad eye. This rare condition
was associated with this kind of surgery.
• P sued for negligently failing to advise her of the possibility.
• Question about consent was raised(though she sued in negligence).
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• She did give her consent to the surgery, however, question was whether D’s
failure to advise her invalidated her consent.
• The high court said that it did not.
• Her proper remedy was to sue for failure to warn in negligence. In Australia, as
long as the patient knows the broad nature of the procedure that they are
consenting to, then that is sufficient for consent. The failure to warn or to fully
inform does not vitiate the consent.
Damages
• Nominal - to recognise infringement of P’s rights
• Compensatory - to compensate P for loss or damage
• Aggravated - an extra sum for injury to feelings, indignity, disgrace, humiliation
• Exemplary - to punish & deter conduct. Rarely awarded and only in Australia for
a ‘conscious & contumelious disregard for the plaintiff’s rights’ (Uren v John
Fairfax 1966)
Henry v Thompson (1989) –

• P was an Aboriginal man who was bashed by police, not only that, but urinated
on. Awarded exemplary damages.
• Provocation is not a defence to battery.
2. Assault
Elements
Positive, voluntary, intentional or negligent act;
Directly causing;
Actionable per se and
1. Reasonable apprehension by P;
2. Of imminent contact with P’s person.
3. Words may be enough
4. Conditional threats must be lawful
1. Apprehension must be reasonable

Macpherson v Beath (1975)
• University lecturer had surrounded by students making it seem to P that he was
going to be physically harmed. P was an unusually timid person, and the court
thought that in the circumstances, an ordinary person might not have
anticipated any imminent contact.
• However court found that the students knew of this characteristic and knew
effect of their conduct and therefore found to constitute an assault.
2. Imminent Contact
Stevens v Myers (1830)
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• D was in a parish meeting chaired by p. Resolved D should be ejected and D, who
was up towards the back of the hall, stood up and threatened violence to and
proceeded to walk down the hall with his fists clenched. The church warden
interfered & stopped D when he was nowhere near the plaintiff. P claimed this
constituted an assault.
• Held as no means of D carrying out his threat because the warden had stopped
him and p could see this, could not constitute an assault – there must be an fear
of an imminent contact, a means for which D could carry out the threat.
Barton v Armstrong (1969)

• Court said that there was not knowing when or whether the threats would be
carried out, was sufficient to make it reasonable to apprehend imminent
contact.
Zanker v Vartzokas (1988)

• Young woman accepted a lift from a stranger, who offered her money for sexual
favours, she refused, and asked that he stop the car and let her out. He kept
driving, and said to her that he was going to take her to his mate’s house who
will ‘really fix her up’. The young woman terrified, and jumped out of the moving
car.
• Court had to consider whether this was assault in whether it was reasonable for
her to reasonably apprehend imminent contact. They held that because she had
no idea where the mates place was, the words of D were sufficient to cause this
reasonable apprehension of imminent contact with her person. There was no
indication of how far off this ‘imminence’ was. A present fear, of relatively
immediate imminent violence was instilled in her mind.
3. Words and Threats

Barton v Armstrong (1969)
• D threatened P over the phone.
• The NSWSC said words can constitute an assault depending on circumstances.
“To telephone someone in the early hours of the morning, not just once, but
many times; in an atmosphere of drama, can constitute a threatening act”.
• The question here was one of reasonable apprehension. It is not whether P is
timid etc, but the test is that of a reasonable person.
• The court ruled in this case that certainly, the reasonable person would have a
reasonable apprehension.
4. Conditional Threats
“give me your money or I’ll shoot you” is an example of a conditional threat.
Tuberville v Savage (1669)
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• P and D were exchanging words, and D placed his hand on his sword and said “if
it were not assize time, I would not tolerate such words”.
• Held D’s actions and words made it unreasonable to apprehend imminent
contact as it was not that time.
Police v Greaves (1964) NZ

• Assault case where he said if you come any closer ill stab, cannot legally impose
such a condition and therefore held assault.
Rozsa v Samuels (1969)

• Taxi drivers, one of which jumped the queue. One of them had an iron bar, and
the other had a knife. D took his knife and said ‘if you don’t get out of the way,
I’ll stab you’. D said it was a conditional threat.
• Court ruled that it was an assault, the fact that he put it in those terms did not
mean that it was not an assault, it would be reasonable to apprehend an
imminence of contact in circs and he had no right to impose condition.
3. False Imprisonment
Elements
Actionable per se
1. An intentional act
Directly causing
2. Total Restraint of the Plaintiff’s liberty
(without lawful justification: a matter for defence)
3. Words can suffice
4. Knowledge not essential
1. Intention
The question remains as to whether you can have a negligent false imprisonment in
Australia today. We know eg from McHale v Watson in relation to battery, that you
certainly can have a negligent battery. There is no case to this point at this point in time.
Sayers v Harlow (1958)

• English Case not about false imprisonment but tort of negligence however
illustrating the situation where a negligent false imprisonment could be possible.
• P used a public toilet maintained by the Harlow district Council. An employee of
the council had negligently failed to maintain the lock of the toilet door, and P
was locked in. To escape she climbed over the top of the cubicle door, was
injured sued in the negligence & was successful as able to prove actual damage.
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• Had she not suffered damage, her only remedy would have been in the tort of
false imprisonment, and that was dependent on whether the court would accept
a negligent false imprisonment. (This would be unlikely in the UK because they
won’t even allow a negligent battery)
2. Restraint Must Be Total

Bird v Jones (1845) –
• P wanted to walk across the footpath on Hammersmith bridge in England but
was unable because D had placed temporary fencing on the bridge to enable
spectators to participate in a regatta. P proceeded to climb over the fence, D
stationed 2 cops to prevent P from proceeding. P tried to force his way & was
taken into custody.
• Held not false imprisonment. Though it blocked P’s passage across the bridge,
there was nothing to stop P from turning around & going back the way he came.
No false imprisonment because P’s passage was only obstructed in one direction.
• Therefore, even for a short time, for there to be false imprisonment there must
be a total restraint of liberty, and that obstruction in one direction is not
sufficient, even if it is very inconvenient for P
Burton v Davies (1953) Queensland Supreme Court

• Similar to Zanker a young woman was driven in a car, and when she asked the
driver to stop and let her out, the driver refused and kept going.
• Held false imprisonment as she had no reasonable means of escape because the
car was moving at some considerable speed. Even though the car door was not
locked, and she could have jumped out of the car, the court held that this was
not a reasonable means of escape because she would almost certainly be
injured.
• Pointed out law does not expect P to endanger life & limb to make an escape,
emphasising means of escape must be reasonable for no imprisonment.
3. Words
Example in a bank robbery where a robber says “don’t leave, don’t call the police
because I’m taking a hostage” In those circumstances, the person would, by means of an
oral imprisonment be imprisoned. Words can therefore constitute imprisonment.
Symes v Mahon (1922)

• D police officer purported to arrest P who turned out the wrong person. D had
gone to P’s home, telling him that there was a warrant for his arrest and that he
must accompany him to Adelaide, P obeyed, meeting not handcuffed, and free
that night got on the train next day in different compartment. In Adelaide, P
checked in at a hotel, then went with D to the police station by tram, spent some
time there, returned to the hotel, then later went back to the police court, when
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the police discovered they had arrested the wrong person. P sued for false
imprisonment, claiming the he had been imprisoned from the time he left for
Adelaide with D, until the 2nd time he went to the police court.
• D argued no physical imprisonment.
• Court held didn’t matter that no physical imprisonment as P had completely
submitted to D’s control. P reasonably thought that he had no way of escape.
Myer Stores v Soo (1991)

• P while shopping in Myer was suspected of being a shoplifter who had been in
the store before. Store detective approached him and man who did not want to
make a scene in the shop agreed to go and was in office for some time being
interrogated.
• Eventually he was allowed to leave on the condition that he attend at a local
police station on a later date for further questioning. He did turn up on that later
date, and it was discovered he was not the shoplifter they were after. He was
allowed to go.
• He sued for false imprisonment while in that office at the store, and also whilst
at the police station on the later date.
• The court held that on the occasion in the shop, he was falsely imprisoned, even
though there was no physical imprisonment, he had submitted to the control of
the store detective in order to avoid public humiliation. The court said that the
detective’s roughness & brashness meant that P was more likely to avoid a
scene, therefore P involuntarily submitted. However on the later date, it was
held there was no false imprisonment because the store detective was not
around and he was not being completely submissive to the detective.
4. Is Knowledge Essential?
Does a person have to know that they have been imprisoned? The short answer is no.
You can be imprisoned whilst not conscious.
Herring v Boyle (1834) – not law anymore

• P was a 10 year old who went to a boarding school. The mother had not paid
fees so headmaster refused to let her see the boy to take him home. The boy
had no idea why he was not allowed to go home.
• An action for false imprisonment was started on his behalf and it failed. It was
held that because the boy did not know of his imprisonment, that his liberty had
been restrained, then he had no cause of action.
Merring v Graham White Aviation Co. (1919)

• P was an employee of the D. D suspected P of theft. Employer sent two of the
security to hold him up in office till cops came. P did not realize he was being
detained. He was not guilty of the theft and later sued for false imprisonment. It
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was argued by the employer that there was no false imprisonment because he
had not actually been told that he was not allowed to leave, neither did he know
that he was imprisoned.
• English court held immaterial whether P was aware of the restraint upon his
liberty. Lord Atkin said that “it appeared to me that a person could be
imprisoned without his knowing it. A person can be imprisoned while he is
asleep, while he is in a state of drunkenness, while he is unconscious, while he is
a lunatic.” An imprisonment can occur even when it begins and ends whilst P is
still in that state of not unawareness.
• Aitkin LJ said, “…If a man can be imprisoned by having the key turned upon him
without his knowledge, so he can be imprisoned if, instead of a lock and key or
bolts and bars, he is prevented from, in fact, exercising his liberty by guards and
warders or policemen. They serve the same purpose. Therefore it appears to me
to be a question of fact… any restraint within defined bounds which is a restraint
in fact may be an imprisonment.” Note may be different if lawful arrest.
Murray v Ministry of Defence (1988)

• P was suspected by London police of being a leader of the IRA and at that time
regulations allowed police to detain IRA on mere suspicion without arresting. P
didn’t tell her that she was under arrest at first, but before she was taken to the
police station, she was formally arrested. She claimed to have been Falsely
Imprisoned during that time when she was merely detained. She claimed this
even though she did not know that they would let her leave.
• House of Lords said she was falsely imprisoned, even though she had not been
told and she did not realise however because of regulation, there was a lawful
justification.
• Lord Griffiths speaking for the Court noted, “The law attaches supreme
importance to the liberty of the individual and if he suffers a wrongful
interference with that liberty it should remain actionable even without proof of
special damage…”
The old case of Herring v Boyle was therefore overruled by the newer cases.
Different forms of imprisonment

Myer Stores v Soo (1991)
• No physical restraint but submission to authority
Cowell v Corrective Services Commissioner of NSW (1988)

• P because of miscalculation was kept in prison longer than he should have been.
• When released, he successfully sued for falsely imprisonment. No defence to the
corrective services commission that it was a mistake as no less imprisoned.
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Louis v The Commonwealth of Australia (87 FLR 177)
• P had been deported to Australia. The commonwealth would not issue passports
& so he couldn’t leave. Held Commonwealth had lawfully refused passports and
so there was no false imprisonment.
This question also illustrated by an example of driving a busload of tourists who cannot
speak the local language, into the middle of nowhere and leaving them there. This raises
a question of geography and whether this constitutes imprisonment.
Robinson v The Balmain New Ferry Co. Ltd (1906)

• P went to catch a ferry, missed the ferry, and wanted to get out of the wharf but
was refused exit unless he paid the penny. He argued that this was a false
imprisonment among other things.
• Prima facie there is a false imprisonment, but it is governed by the contractual
arrangement. He knew what the conditions were, and voluntarily submitted to
the rules, giving up his liberty on the conditions imposed.
• PC held that D were entitled to impose the conditions .
• The effect of this decision is that the presence of a contract excuses the
commission of a tort. Today we have the contracts review act which governs this
Herd v Werdale (1915)

• P’s were miners who while down their mine, went on strike. Having told the
employer they were on strike, they demanded that they be taken back to the
surface howeve employer refused saying they had to stay till end of the shift as
that was what their contract said. The miners sued for false imprisonment.
• Court found in favour of D because of the presence of a contract. What would
have been a false imprisonment was held by the court not to be because of the
contractual arrangement between the parties. The contract was therefore
allowed to take tortioius character away from false imprisonment.
Dickinson v Waters Ltd (1931)

• P was a woman accused of shoplifting and the arrest, but turned out not
shoplifter. She sued the proprietor of the business for false imprisonment
though the police had arrested her.
• The court found that the officer would not have arrested her had it not been for
the insistence of the manager. The court ruled in P’s favour that the manager did
falsely imprison P .
• Police must have reasonable reasons in order to arrest. In the case of citizen’s
arrest, they are entitled to make one, but there is common law to the effect that
suspicion will never do. They need to be caught red-handed.
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Action on the case for wilful injury

This is not a trespass which is per se: you need not prove damage. Here, damage is an
important part of the action.
Elements
· An intentional act
· Calculated to cause physical harm
· And in fact causing it
Bird v. Holbrook (1828)

• D was sick of people trespassing into his garden, so set up a gun with a trip wire
to shoot intruders. P went into the garden, tripped the wire, was shot and was
injured. However trespass failed because shot wasn’t direct.
• Despite no trespass, ‘action on the case’ is allowed when directness is not
sufficient. He has been injured because of the deliberate act of the garden
owner. The court agreed that the garden owner had done an intentional act he
did in fact cause physical damage to P, so P has a remedy in action on the case.
Wilkinson v Downton (1897)

• D told the P her husband had been seriously injured in a traffic accident as a
practical joke, she suffered shock & a serious physical illness
• Wright J upheld the jury’s verdict in her favour stating the principle as: “the df
has…willfully done an act calculated to cause physical harm to the pf & the act
does in fact does cause harm to her…without more appears to me to state a good
cause of action”
• Conduct must be wilful & cause harm, recklessness or intention is irrelevant. It is
an objective sense of causing harm. Reasonable person believing meant to harm.
Janvier v Sweeney (1919)

• D were detectives who wanted to obtain from P some letters that they thought
she had access to, they threatened her that they would tell the authorities that
she had been involved with a German spy during the war years. She became
physically ill as a result of the threats.
• Held a stronger case than Wilkinson v Downton saying you cannot go around
threatening to report things to the police in order to get what you want from
them. P was successful and approved Wilkinson v Downton.
Scope of the Rule

Bunyan v Jordan (1937) – narrow view
• P was a 20 year old female employee of D, who heard boss shoot a gun after
talking about suicide and she went into nervous shock causing illness, so sued D.
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• P failed in the action because the D would not have reasonably have anticipated
his joke ro cause harm to P. Court didn’t find employers drunkenness relevent.
They looked at its effect on the normal young female, looking at the subjective
element – nature of the wilful act, and also looking at the objective element –
would that action be likely to cause damage to a normal young female?
Carrier v Bonham QCA 26/6/2001
• An unreported judgment P was an experienced bus driver who was driving his
bus in suburban Brisbane, when D, who is a chronic schizophrenic, jumped in
front of the bus. P developed a psychiatric disorder because of it from distress,
had to give up his work and sued D as well as state of Queensland who was
responsible for the hospital that D had escaped from.
• Trial court found that D was liable to the plaintiff and so did the CA on the basis
of Wilkinson v Downton.
• Held irrelevant what D as a psychiatric patient could forsee, the issue was what a
reasonable person would foresee. It is therefore objective.
Adams v Motor Vehicle Trust (1957) - broader view

• D a schizophrenic took a car, claiming he was being pursued by people who were
trying to kill him, drove through red light, seriously injuring P. A reasonable
person test was applied, irrespective of whether D was schizophrenic or not.
• The Queensland Supreme Court took ‘calculated’ to means foreseeable to the
reasonable person to cause injury. Takes ‘Calculated’ meaning reasonably
foreseeable by the reasonable person to cause injury.
Note: no defence of insanity in torts except where extent not to be willful
Trespass to Land
As opposed to personal property that is movable. As with the other trespass torts, the
elements are the same, except the additional element is the ‘exclusive possession of
land’.
Elements
Intentional or Negligent act of the defendant
Without lawful justification
1. Which Directly
2. interferes
3. With the Plaintiff’s exclusive possession of land
1. Directness
The conduct of P must constitute a direct interference with P’s possession of the
property, an “immediate” consequence of D’s action. Significant because this means
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there is no break in the chain of causation, nor another event which itself becomes the
causation.
Southport v Esso Petroleum (1954)

• A tanker was in distress with a cargo of petroleum so released oil cargo to
lighten the load. The oil landed on the coasts of the Southport area, polluting the
beaches and nearby coastal areas, causing considerable damage. Sued fir
trespass to land but problem was directness. The oil was released somewhere on
the high seas, the wind and the tides brought it on shore.
• The court said that it would only be direct if Esso had employed the wind and the
tides to bring the oil to shore. Held not a direct action, and therefore no
trespass.
Scott v Shepherd (1773)

• refer to notes in battery.
Conduct of D
Entick v Carrington (1765)
• Every invasion of private property… trespass. Must cause physical interference.
League Against Cruel Sports Ltd v Scott (1986)

• Park J held that the master of a hunt was liable in trespass to land if he either
intended hounds to enter the plaintiff’s land or negligently failed to prevent
them from entering. ‘whatever the motive with which the league bought these
plots of land it is entitled to enjoy them without trespass by hounds’.
Continuing trespass:
Konskier v Goodman Ltd (1927)
• Someone left rubbish on a property. It was an initial trespass, but because it was
reasonable because of the work they were doing, there was no trespass as long
as they “removed it within a reasonable time after the work was done”. They did
not.
• P became a tenant of the house & as a result of the rubbish suffered damage to
the house because of it. Scrutton LJ “If it was a trespass to leave the rubbish on
the roof, it was a continuing trespass at the time when the plaintiff became
tenant of the property. “
Implied licence
Halliday v Neville (1984)
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• Police officers saw someone who they knew had been disqualified from driving,
reversing a car out of a driveway, walked up the driveway purporting to arrest
him for driving while disqualified. P alleged officers were trespassing when they
arrested him.
• High Court held that there was an ‘implied licence to persons to go upon the
open driveway of a suburban dwelling for legitimate purposes’ as it is
unobstructed, and there is no sign to the contrary.
• It is therefore a bridge between a public thoroughfare and his/her own private
dwelling. However, in his dissenting judgment, Brennan J said that the onus was
on the person who was trespassing that “it is not incumbent on a person in
possession to protect his privacy by a notice of revocation of a licence that he
has not given; it is for those who infringe his privacy to justify their presence on
his property.”
Exceeding Implied Licence:

The act must constitute some physical interference which disturbs P’s exclusive
possession of the land
Lincoln Hung Aust P/L v Willesee (1986)

• P sought an injunction to restrain D from televising a videotape allegedly made
in the course of a trespass on P’s place of business. D argued that the implied
invitation by P for the public to enters its premises was limited to members of
the public seeking information or business with it.
• Court granted damages to P and not an injunction because an injunction is only
granted if it can be seen that irreparable damage will be suffered by the plaintiff
if an injunction is not given, and that on the balance of convenience (in
calculating the damage) favours the injunction. However, the court said that in
the circumstances it would be hard to show that irreparable damage would be
suffered as D can meet the demands of large damages. (Young J)
Victoria Racing Co v Taylor (1937)

• P owned a racing area. D erected a scaffolding outside (off their property) to
watch the sport.
• Court held no trespass as there was no physical interference.
Bathurst v Saban (no 2) (1986)

• Council sent cameraman to take pictures of the property without going onto the
property. P argued that this evidence was illegally obtained because of the tort
of trespass. The court said no as he had not actually been on property.
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Note: If you are on the property to begin with, and then later you exceed the bounds
upon which you are allowed to be, thereby invading another section of that property,
you are then taken to have committed trespass as if you had been there ab initio.
Co Ownership
In general, a co-owner cannot be liable in trespass in respect but this is debatable where
the ’trespassing’ co-owner is not in possession. (Greig v Greig)
A co-possessor can maintain an action against a trespasser (Coles Smith v Smith and
Ors)
Coles Smith v Smith & Ors

• Only the person with possession can sue.
Newington v Windeyer (1985)

• Property belonged to a deceased estate, but was under the control of squatters.
• Court held squatters in exclusive possession therefore are deemed to have title
to sue and can maintain an action against anyone except the actual owner.
Licences
• A licensee is one who has permission of P to enter or use land (belonging to P)
• A licensee is a party not in possession, and can therefore not sue in trespass
• A licensee for value however may be entitled to sue (E.R. Investments v Hugh)
Police Officers
• Unless authorized by law, police officers have no special right of entry into any
premises without consent of P ( Halliday v Neville)
• A police officer charged with the duty of serving a summons must obtain the
consent of the party in possession (Plenty v. Dillion )
Police Officers; The Common Law Position

‘The poorest man may in his cottage bid defiance to all forces of the Crown. It may be
frail- its roof may shake- the wind may blow through it- the rain may enter- but the King
of England cannot enter- all his force dares not cross the threshold of the ruined
tenement. So be it- unless he has justification by law’. Southam v Smout [1964]
3. Meaning of Land
Traditionally, the Common Law position was that Land includes the actual soil, dirt, the
structures, plants, and the airspace above it. He who owns land bears also what is Above
& beneath(heaven and hell).
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Changed In:
Burnstein v Skyviews Ltd [1978] 1 QB 479
• An aerial photography company took some photos of a property and then sent
them to the property owner offering to sell them.
• Held “This balance is in my judgement best struck in our present society by
restricting the rights of an owner in the airspace above his land to such height as
is necessary for the ordinary use and enjoyment(from heaven and hell) of his
land and the structures upon it, and declaring that above that height he had no
greater rights in the airspace than any other member of the public.”
Stoneman v Lions(1975)
• Buiders who excavated a trench with bays that extended under the footings of
their neighbours garage held to have committed trespass as this affected the
reasonable persons enjoyment. Made the garage collapse.
LJP Investments PTY Ltd v Howard Chia Investments Pty Ltd (1989)
• D was constructing a building and sought the permission of P to erect scaffolding
extending over P’s land. P demanded costs for consent. D rejected but built the
scaffolding, intruding 1.5 m into P’s property airspace, and at ground level, two
posts about 100mm inside P’s land. Plaintiff sought a mandatory injunction for
the removal of the scaffolding.
• Hodgson J endorsed the above case & held that “the relevant test is not whether
the incursion actually interferes with the occupier’s actual use of land at the
time, but rather whether it is of a nature and at a height which may interfere
with any ordinary uses of the land which the occupier may see fit to undertake”.
• Held that D had committed a trespass, and a mandatory injunction was granted.
Remedies
• Ejectment- Reasonable force may be used to eject the trespasser to regain
possession.
• Award of damages – where D’s conduct was deliberate with an intention to
outrage P, then exemplary damages may be awarded (XL Petroleum P/L v Caltex
Oil P/L (1985))
• Injunction – equitable remedy, therefore at court’s discretion.
Trespass to Goods
The intentional/negligent act of D which directly interferes with the plaintiff’s
possession of a chattel without lawful justification
Title to Sue
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The P must have actual or constructive possession at the time of interference for a title
to sue. It may not be actionable per se, without proof of damage (Everitt v Martin)
because we are to expect the nominal physical contact of everyday social life. (Plenty v
Dillon)
Exceptions to the need for actual or constructive possession

1. Trustees and beneficiaries;
2. Executors and administrators of deceased estates;
3. Owner of a franchise in the wrecks
4. The gratuitous bailor at will (Penfolds v Elliot (1946)
In terms of directness, the intentional act must directly interfere with right to
possession.
Hutchins v Maughan (1947)

• D laid poisonous baits on unfenced land. He warned P of their existence but P
ignored and Ps dogs ate the baits and died. D argued that P’s injury was not
caused by him, but merely consequential and not direct, therefore not a
trespass.
• Herring CJ and the court agreed that it was not a trespass:
• “In these circumstances, the injury P suffered cannot, in my opinion, be said to
have followed so immediately in point of causation upon the act of D as to be
termed part of that act. It should rather be regarded merely as consequential
upon it and not as directly or immediately occasioned by it. And so trespass does
not lie in respect of Ds act in laying the baits. Had the bait been thrown by D to Ps
dogs, then no doubt the injury could properly be regarded as directly occasioned
by the act of D, so that trespass would lie.”
National Coal Board v JE Evans and Co (Cardiff) Ltd (1951)

• If the trespass is unintentional, and there is no negligence, then there is no fault,
and therefore no action in trespass NB – a mistake is not a defence in tort law.
2. Detinue
Another tort that protects our interest in goods, only one where the court can order
specific restitution of the good. Therefore useful if P wants the object back. It has been
abolished by statute in England in Australia it still exists. The essence of detinue is a
demand for goods and a refusal to return them.
Elements
1. Title to Sue
Wrongful
Refusal to return goods
2. Upon demand
Of P’s entitlement to possession
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1. Title to Sue
P must be able to show that they are immediately entitled to possession of the goods. It
must be a property right of some sort though not necessarily ownership.
Jarvis v Williams (1955)

• P sold and delivered goods to purchaser which usually would mean no more title
but here, because of a contractual arrangement, P could have em back for a
while.
• D refused to give the goods over. P sued in detinue.
• The court said P had no proprietary right to possess the goods. The personal
contractual arrangement was not sufficient title. So P failed in suing for detinue.
2. must have been a demand made for the goods

P must establish that a demand was made.
Lloyd v Osborne (1899)

• P claimed D had several sheep branded with Ps name. Ps solicitor sent a letter of
demand to D, that demanded of D “at once to deliver to P or Ps agent, all sheep
branded (with Ps brand)”
• The NSWSC said that this was insufficient because the date of delivery was not
specified. The demand must therefore be very specific.
Capital Finance v Bray (1964)

• A hire purchase arrangement where if you bought a car and had to borrow
money to buy it, it was actually owned by the finance company that lended you
the money. You hire the car from the company, and when you pay off the
money, ownership is transferred. If payment defaults, then the company can
demand the car back. P claimed that D had defaulted, and therefore sent notice
to D that he must immediately take the car to one of 3 specified locations. He
didn’t.
• The court held that the notice was not sufficient because under the hire
purchase contract, there was nothing that said that the purchaser had to deliver
the car anywhere if he defaulted, only that the finance company could come and
get the car to repossess it. There was no obligation on the purchaser to take the
car anywhere.
Howard Perry v British Railway Board (1980)

• The refusal by D to deliver goods is not excusable. If a demand is properly made,
and D refuses, they commit detinue. P had transported goods by rail in England
and the goods were in a yard owned by D. P demanded to be allowed to access
the goods, but D refused because there was Industrial action at the time and
they did not want to make it worse (so they COULD have returned the goods).
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Houghland v RR Low Luxury Coaches (1980)

• P went on a coach tour, and delivered luggage to the coach, and upon arrival,
her luggage was no longer there.
• The court ruled that unless goods were lost with no fault on Ds part, the fact that
D cannot return the goods makes no difference. They are still liable for detinue.
Forms of order:
1. Value of chattel & damage for its retention;
2. Return of the Chattel or recovery of its value & damages for retention
3. Return of the chattel & damages for detention
These are all at the judge’s discretion
3. Conversion
This tort is much broader than detinue. To understand conversion, we can look at a
contract for bailment.
Definition of Conversion
“A dealing with a chattel in a manner repugnant to the immediate right of possession of
the person who has the property or special property in the chattel provided there is an
intention on the part of the defendant to deny the owners right or assert a right
inconsistent with it and the act results in the plaintiff being deprived of possession for
an indefinite period which renders the chattel useless to the plaintiff” per Dixon J in
Penfolds Wines v Elliot (1946)
It covers a lot of things that are not trespass because of all the directness rules. In fact, a
lot of wrongful dealings with goods can fall under conversion.
Elements
1 dealing with a chattel
· in a manner repugnant
· to the immediate right of possession
· of the P having the property in the chattel
2 with the intent to deny the owners right or to assert a right inconsistent
· and depriving P of possession
Bailment
Bailment is the delivery or giving of a chattel to another on the condition that it will be
returned after a specified time or purpose. The Giver is the bailor, the keeper is the
bailee, and the relationship is a bailment.
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There are 3 types:

1. Bailment at will – return of chattel at will
2. Bailment for a term – return of chattel after a certain time subject to other
conditions of the bailment
3. Bailment for a particular purpose
1. What can be Converted?

It needs to be capable of being property.
Doodeward v Spence (1908)

• Case dealt with a foetus in a bottle of preserving spirit, a medical specimen. The
court had to decided whether the object could be capable of being property
because a dead body cannot be property. The executor of an estate for example,
merely has responsibility of what happens to the body, but there can be no
ownership. The court decided that because it was a medical specimen as
opposed to a dead body, it was property, and therefore capable of conversion.
• It must be tangible. You cannot convert, for example, electricity.
Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989)

• 2 sisters who loaned a few valuable paintings to their brother. They did not give
them to him, merely lending them to him on a long loan. On his death the
brother’s family & executors, purported to sell the paintings to an Art Gallery.
The surviving sister, and the estate of the other sister, sued the executors of
their brother’s estate in conversion. The sisters said that the paintings were
loaned on a bailment at will basis. The brother & the brother’s estate had no
right therefore, to sell the pictures.
• Court agreed that the bailment at will meant that the sisters had an immediate
right to the pictures.
• There was no suggestion that the brother’s estate was acting fraudulently, but
there is no requirement per Dixon J in Penfolds Wines v Elliot (1946).
Bailment for a term

City Motors P/L v Southern Aerial (1961)
• In a hire purchase arrangement, a finance company wrongfully repossessed car
during a contract for apparent default in payment . The bailee had not actually
defaulted, but because of a mistake, the car was repossessed, during the term of
the agreement. P sued the finance company for conversion.
• The court agreed, and held that during the term of the contract, providing the
bailee was not in breach, the bailor had no right to possess the goods, and that
the bailee, during the term could sue the bailor for conversion. This is because
the bailee had a right to possession, whereas during the term, the bailor did not.
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Penfolds Wines v Elliot (1946) – Leading Aus Bailment case
• D was using Ps bottles to put his own wine in, and sold them in a BYO bottle
arrangement. Ps bottles said “this bottle always remains the property of P”.
• P sought an injunction to restrain D from continuing on the basis of a conversion.
Once empty, the purpose for which the bottles were sold, they had a right to
possession according to the bottles. There is therefore a bailment arrangement.
• Once empty, the court said they did have an immediate right to possession to
the bottles & had title to sue. However, Court said there was no dealing with the
chattel on Ds part, there was no way that D interfered with Ps right of
possession. A few of the bottles however, were given by D to people other than
those who had given him the bottle on bailment. The court said that this may be
a conversion. However, it was not serious enough to grant an injunction for.
• This case clearly establishes the right to possession gives a title to sue, and also
what kind of a dealing constitutes a conversion. The court couldn’t agree
whether Ds use constituted a conversion.
• This would not happen today because it would be covered by s52 of TPA 1974.
Other legal rights to possession

Lien
At common law a lien is a limited right to retain possession of goods pending payment
of a debt. Liens include the general lien, artificers lien, the repairs lien and the lien of the
unpaid seller. A lien is a defence, not a right of action, however a person with a valid lien
has sufficient interest to sue 3rd parties and owners of the title to goods in conversion.
Standard Electronics v Stenner (1960)

• The court recognised someone with a lien has title to sue.
Finders
At law, if you find an object, you have a right to possession of it, and you have a better
right to possess it than the whole world except for the true owner.
Amory v Delarmarie ( 1772)

• P was a chimney sweep’s boy who found a jewel, & took it to be valued. The
jeweller refused to return it. P sued in trover.
• Court held that the boy’s possessory title was good enough for a title to sue. His
title was better than anybody except the true owner.
Further complicated when the chattel is found on private property.
Elwes v Brigg Gas Co (1886)
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• A Timber boat was found embedded in land. The court held that it belonged to
the land owner because it was embedded in the land.
Bridges v Hawksworth (1851)

• P found money lying on the floor of the public part of a shop.
• Court held that the finder had a better claim to it than the owner of the shop,
simply because it was found in the public part of the shop.
Parker v British Airways Board (1982)

• P found a valuable bracelet in a 1st class lounge owned by British Airways. P gave
it to an employer of British Airways with instructions that if it was not claimed by
the true owner, then it was to be returned to P. British Airways kept it & P sued
for conversion.
• Court held that P as finder had a better title to the bracelet than D even though
D was occupier of premises. D could not claim a better title unless the occupier
had manifested an intention to control the premises and everything in the
premises.
Chairman of the National Crime Authority v Flack (1998)

• P had a son who did not live with her but was being investigated by D for drug
offences. D, with a search warrant, conducted a search of her house and took
away a suitcase containing a large sum of money. P was unaware of its existence.
D did not charge the son, but also refused to return the money. P sued.
• Federal Court referred to the Parker case. The court said that it is significant that
it was found in Ps home. When it is a home, you do manifest an intention to
control the premises and everything in it.
2. What constitutes the required conduct for a conversion?

The conduct must be intentional.
Ashby v Tolhurst (1937)

• P left car in a parking station. The attendant allowed a rogue pretending to be P
who was authorised, to have the car and drive away.
• Court held you can act bona fide and still commit a conversion if the dealing was
intentional, and since act of handing was intentional, here conversion.
Dealings amounting to conversion

• Disposing of the goods, which includes sale of the good (Perpetual Trustees
&National Executors of Tasmania Ltd v Perkins (1989)
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• Taking possession of goods – (Rendell v Associated Finance (1957)) If you merely
take possession of the good with a view to keeping possession, then that
amounts to a conversion.
• Abusing possession – Likely in the case of actual damage, Simply using without
abusing may not amount to a conversion (Penfolds wines)
• Transferring possession to someone else other than the bailor (Penfolds – where
D gave bottles back to bailee, not a conversion, but was when he gave to 3rd
parties)
• Withholding conversion
• Denial of Plaintiffs Right
• Co-Ownership? – probably not a conversion Kitano v Commonwealth (1973) ,
though a little indecisive. If one owner destroys the good without consent of the
• other, then that will be a conversion, but simply one co owner using the good to
the exclusion will not be a conversion.
Defences to Intentional Torts

A statement of defence may contain:
• The defendant’s denial of the tortious act e.g. Defendant had an alibi for when
the alleged tortious event occurred
• The defendant’s objection to a point of law e.g. Defendant admits liability for the
act, but questions whether the act constitutes a tort
• The defendant admits liability but seeks to avoid the responsibility e.g.
Defendant admits liability, but counterclaims on the plaintiff
Consent
In a strict sense, consent is not a defence as such, because in trespass, the absence of
consent is an element of the tort
Marion’s Case (1992) 175 CLR 218

• In this case, the court stated that every surgical procedure was a battery, unless
there was consent on behalf of the patient
Freeman v Home Office [1984] 1 All ER 1036

• The House of Lords said absence of consent has to be proved by the plaintiff
Valid Consent
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Valid consent must be informed and procured without fraud or coercion
R v Williams
• Defendant had told the plaintiff that she needed an operation to allow her voice
to reach its full potential
• Plaintiff had consented to an operation. This operation turned out to be sexual
intercourse with the defendant
• Court held that this was not consent, as she had consented to something not of
the nature performed
Fraudulent Consent
Fraudulent consent is not valid consent. To invalidate consent, fraud must be directly
related to the agreement itself, and not to an incidental issue.
Papadimitropoulus v R (1957) 98 CLR 249

• The plaintiff was an immigrant woman who had little understanding of English
• The defendant led the plaintiff to believe that she was married to him, it is under
this belief that the plaintiff had sex with the defendant
• Court held that the consent in this instance was valid, as there was a
misapprehension about relationship, but this does not change consent for the
act
Consent in Sports
• In contact sports e.g. Rugby, consent is not necessarily a defence to foul play
• (McNamara v Duncan (1971) 26 ALR 584, Hilton v Wallace)
• To succeed in an action for trespass in contact sports, the plaintiff must prove
the relevant elements of the tort (Giumelli v Johnston (1991))
Consent in Medical Procedures

There are various problem areas of consent in Medical treatments
1. Wrong Medical Procedure:
Chatterton v Gerson [1981] QB 432
• If a person goes to hospital for a procedure and another procedure is
undertaken, this procedure is a trespass.
2. Actuality of the consent for a specific procedure

Murray v McCurchy (1949) 2 DLR 442
• The plaintiff was patient of the defendant
• The plaintiff had been seeing the defendant regarding a child birth problem, the
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• plaintiff had mentioned in passing how she would like to be sterilized
• During the plaintiff’s last childbirth, the defendant decided to do the plaintiff a
favour and tied her fallopian tubes
• When the plaintiff found out, she was irate and sued for trespass. Plaintiff said
that the surgery was not necessary at the time
• The court held that there was no consent, as the procedure wasn’t an essential
one
3. The Question of Validity
4. Capacity to Consent
Gillick v West Norfolk Health Authority
The plaintiff’s were a minors parents who objected to the defendant giving their
• daughter the “pill”
• Court held that a minor can consent to a medical operation, if they are mature
enough to appreciate the gravity of the situation
5. Informed Consent
Rogers v Whitaker (1992) 175 CLR 479
• The plaintiff was a patient of the defendant
• The plaintiff had one good eye and one bad eye, it was proposed that she have
surgery on the bad eye to restore sight to that eye
• The defendant did not tell the plaintiff that there was a rare chance that she
would lose vision in her good eye
• The court held that there was still consent for the procedure
F v R(1983)
• P had undergone surgery with the D tying of her fallopian tubes. The tubes
subsequently rejoined and the plaintiff fell pregnant, plaintiff sued the
defendant for not telling her that there was a chance of this occurring
• Court held that there was still consent for the operation
• Informed consent cases are issues of negligence not trespass. As it is not possible
to argue that the plaintiff did not consent to the operation, as there was
consent, just not informed consent.
Necessity
The defence is allowed where an act which is otherwise a tort is done to save life or
property. Generally only permissible in “urgent situations of imminent peril” .
Southwork London Borough Council v Williams [1971] Ch 734

• The defendants were squatters that were trespassing on council land, Council
sued in trespass, defendant argued necessity
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• The court rejected , as it contravened every persons personal right to property,
as it could be seen that no property would be safe
• The court also stated that it was not the place of the law to look after homeless
• The defendants act must be reasonably necessary and not just convenient
Murray v McMurchy (1949) 2DLR 442

• The plaintiff went to hospital for treatment on an abdominal complaint
• Through a misunderstanding, her fallopian tubes were tied
• The court rejected the defence of necessity, it stated that the act must be
required to save life and property
Malette v Shulman (1990) 67 DLR (4d) 321

• P a Jehovah’s witness, carried a card that stated that in the event of an accident
she did not wish to receive a blood transfusion but in hospital was.
• The plaintiff sued the defendant, who raised the defence of necessity
• Court said that this was not applicable, as the plaintiff had made her position
clear. It was a generous act from the doctors, but not necessary
• But the plaintiff only got nominal damages and had to pay her own costs
• Necessity is a defence that is only permissible in certain circumstances, as it has
the ability to be abused
Necessity and Medical Intervention

In general, it is permissible to undertake medical procedures relating to the plaintiff
without his or her consent in the following circumstances:
• Where its impossible to communicate with the person e.g. patient is unconscious
• The act is in the best interest of the assisted person e.g. Life saving surgery
• Necessity can extend to routine or permanent contact e.g. Dressing and feeding
a disabled patient
re F
• A mentally incapacitated woman was found to be pregnant and doctors wanted
to terminate the pregnancy. They applied to the court to grant such a decision.
• It was held that, although such procedures are prima facie acts of trespass, the
court
• was willing to grant a termination. The situation deemed it necessary to allow
the
• trespass
Infancy
Being a minor is not a defence to a tortious act. What is essential is whether the
defendant
understood the nature of his or her conduct (Smith v Leurs [1944] SASR 213)
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Mistake
A mistake is an intentional conduct done under a misapprehension, thus mistake is not
the same as inevitable accident, generally irrelevant in intentional torts, except for
matters of mistaken self defence and therefore the court will consider whether the
belief of the defendant that he or she needed to take Action in self defence, although
mistaken, was in the circumstances reasonable and so justified. Although mistake is
notma defence in tort law, mistake may go to prove an absence of intent.
Rendell v Associated Finance [1957] VR 604

• The defendant mistakenly repossessed the plaintiff’s car
• The court rejected this defence
Symes v Mahon(1922)
• The defendant police officer arrested the wrong person by mistake
• The court rejected the defence of mistake
Illegality
The traditional common law position on illegality is usually summed up in the Latin
maxim “ex turpi causa no oritor action”, which means that no cause of action may be
based on an illegal act.
Hegarty v Shine
• The plaintiff was a prostitute that sought to be reimbursed for services
• The court held that the plaintiff was not able to claim for the money, as she was
a prostitute, thus she was committing an illegal act to, obtain the money owed
Gala v Preston
• The plaintiff robs a bank and was involved in an accident in the get away vehicle
• Court held that they were not able to get damages for injuries suffered, as they
were involved in an illegal act
Exceptions
There is an actionable tort, if the illegal act is not central to the tort
Self Defence
In general, a person who is attacked or threatened with an attack and who reasonably
believes his life is in danger, is allowed to use such force as necessary to protect himself.
Force used must be proportional to threat, not excessive.
Fontin v Katapodis (1962) 108 CLR 117

• The plaintiff had accused the defendant of outstanding payments
• The defendant came back to the store with proof of paying the debt
• The argument turned into a brawl
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• The plaintiff hit the defendant twice with a piece of wood
• The defendant retaliated with a piece of glass
• The court said that the defendants use of force was excessive, thus no defence
of self defence
Defence of Other
The defendant may use reasonable force to defend a third party. The defendant is
allowed to use force as may be reasonably necessary in circumstances to defend a third
party in situations where he reasonably believes that third party is about to be attacked
or where the party is actually attacked
Goss v Nicholas [1960] Tas SR 133

• The court held that a person is entitled to use force to defend a third party, the
amount of force one can use is to be proportionate to the degree of injury
anticipated for the stranger
Defence of Property
The common law allows an individual to use reasonable force to defend his property
Shaw v Hacksaw [1983] 2 VR 65

• The defendant owned a property where his petrol was constantly siphoned off
by individuals
• One night the defendant lay in wait with a shot gun to deter potential thieves\
• The defendant shot at the car injuring the plaintiff
• Court held that this was an unreasonable force
The Issue of Damages

Self defence or the defence of another or property when successful affords the
defendant an absolute defence. However, where the defendant’s conduct is adjudged
to be excessive in the circumstances, the fact that he may have had a prima facie case of
self defence would be immaterial; he will be held totally liable for any actual damage or
compensatory damages awarded.
Provocation
Provocation is not a defence in tort law; it can only be used to avoid the award of
exemplary damages
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Fontin v Katapodis (1962) 108 CLR 117
• Provocation can not be used to mitigate damages, can only be used to mitigate
exemplary Damages A critique of the current position on provocation
Negligence
Negligence involves the breach of a legal duty of care by an inadvertent act or omission
which injures another person. It connotes the complex concept of duty, breach, causation
and damage thereby suffered by the person to whom the duty was owed.
Elements
• Duty – D owed P a duty to take care in the circumstances

• Breach – D’s act or omission failed to reach the standard of carefulness required by
the circumstances and so there is a breach of the duty to take care
• Causation – D’s breach of duty caused damage to P
• Damage – Damage suffered by P is legally recognisable and not too remote from the
breach of duty
Generally, the onus of proving negligence rests upon the person alleging the action, on the
balance of probabilities that the act or omission was negligent.
The common law of negligence in NSW has been significantly affected by the Civil Liability
Amendment (Personal Responsibility) Act 2002, which amended the Civil Liability Act 2002.
These provisions commenced on 06/12/02
Duty of Care
Previously relationship required
The tort of negligence developed from the action on case, however back then, no tort if
P could not raise a specific relationship between themselves and D which gave rise to a
duty of care.
Bird v Holbrook(1828)
• P’s animal escaped and he went to get it & set off the trap D his neighbour had
set up. No warning notice was set and P was injured.
• Sued as action on the case successfully as held spring gun was unreasonable.
Heaven v Pender (1883) QBD
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• P painter sub-contracted by a third party to paint a ship on D’s dock. However P
was injured when scaffold, erected negligently by the defendant collapsed.
• P was unsuccessful on the first instance, as not able to establish a relationship
that gave rise to a duty of care. At this time there were only certain relationships
that gave rise to a duty of care on the basis of negligent conduct. And to begin an
action, they needed to fit it in one of these categories, as he wasn’t privy to
contract of employment didn’t give it.
• On appeal, the court ruled in favour of the plaintiff, and said plaintiff was
impliedly invited onto the defendant’s land, thus giving the plaintiff a
relationship which gave rise to a duty of care and invitee/invitor relation
• Brett MR (later lord Esher) proposed a general rule (as opposed to
categorisation) for when liability and negligence would arise. “Everyone of
ordinary sense would realise that if ordinary care was not exercised they would
cause danger to other people, a duty therefore arises to use this ordinary care &
skill to avoid such danger.’ However majority didn’t accept this at that time and
just said there was an invitee invitor duty, narrower view.
Victorian Railway Commissioners v Coultas (1888)

• Train just missed the couple who were in the car she lost her baby & developed
serious psychiatric illness, PC said no duty as the ordinary person would not have
developed such a problem.
Lelivre v Gauld (1893) 1 QB 491

• Brett MR (Now Lord Eshar) again reinstated the general rule he said before,
adding some “continuity or neighbourhood (closeness)”, physically, was needed
to limit the ambit of power afforded by the statement before.
• However still no majority change from the position that a special relationship
must first exist between the two parties
Wilkinson v Downton (1897)

• D told the P her husband had been seriously injured in a traffic accident as a
practical joke, she suffered shock & a serious physical illness
• Wright J upheld the jury’s verdict in her favour stating the principle as: “the df
has…willfully done an act calculated to cause physical harm to the pf & the act
does in fact does cause harm to her…without more appears to me to state a
good cause of action”
• Conduct must be wilful & cause harm, recklessness or intention is irrelevant. It is
an objective sense of causing harm.
• 2 stage analysis by blay:
o D Must Willfuly or recklessly inflict nervous shock on P
o D Must do above by word or conduct or both of a kind where nervous
shock likely
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Modern View of this case was given in Bunyan v Jordon (1937) where Dixon J said
Negligence is not seen as a separate tort but rather as where a d in the course of socially
worthless conduct negligently failed to exercise care to avoid causing nervous shock to
P.
Janvier v Sweeney(1919)
• D were detectives who wanted to obtain from P some letters that they thought
she had access to, they threatened her that they would tell the authorities that
she had been involved with a German spy during the war years. She became
physically ill as a result of the threats.
• Held a stronger case than Wilkinson v Downton saying you cannot go around
threatening to report things to the police in order to get what you want from
them. P was successful and approved Wilkinson v Downton.
Palsgraf v Long Island Railway Co. (1928) NE

• Plaintiff was a woman waiting for a train at NY station where two employees
were helping a late passenger onto the train, in the process dislodging a parcel
the man was carrying which fell on the track and exploded
• Explosion caused scales used to weigh luggage to fall onto P who sued for
negligence
• D argued they didn’t owe a duty of care as there was no reasonable
foreseeability that the act might cause injury to her
• Court held as not reasonably foreseeable that the negligent act of D would cause
damage to someone on the opposing end of the platform not liable.
Donoghue v Stevenson [1932] AC 562

• P’s friend bought her a bottle of ginger beer made by D from a café in Scotland.
• Half the liquid was poured into a glass and drank by P, upon pouring the second
half into the glass, the remains of a decomposing snail was found
• P became physically ill with gastroenteritis and sued the defendant, but duty
problem as no action in contracts, as not privy and no recognised category giving
rise to any negligence between a manufacturer & a consumer.
- The house of Lords recognized in favour of the plaintiff, created a new
category of duty of care i.e Manufacturer has a duty of care to the final
consumer. HL found for P on this narrow basis.
• Main significance Lord Atkins judgement, where he outlines the “Neighbour
Doctrine”
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• “In English law, there must be a general conception of relations giving rise to a
duty of care.”
• “You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who then, in law, is
my neighbour? The answer seems to be persons who are so closely and directly
affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which
are called in question” at 580.
• This statement is the basis of Negligence law, but Atkin was the only one taking
this general view, the others based their judgment on the finding of a new
category of a duty of care.
• Lord Atkin (s5B of CLA) – further refined Lord Escher’s proximity to develop the
neighbourhood principle- proximity & reasonable foreseeability.
In 1936 the privy council applied the doctrine created in Donoghue and Stevenson in:
Grant v AKM [1936] AC

• P bought a pair of long underpants made by d(manufacturer), got dermatitis
from the chemicals used to make the pants, as not warned to wash prior to
wearing
• Court held that D had a duty of care to P. Approving Donaghue v Stevenson,
recognising that negligence was a tort in itself and not simply an element in
some more complex relationships.
Bunyan v Jordan (1937)

• Miss Bunyan observed D drunk holding a revolver & she heard him say that he
was going to shoot himself & someone else having shot at another building
• Miss B could not work for 3 months as she was she was paralysed from fear
• Held intention to cause emotional harm was not there & the words weren’t
uttered to P or in her presence :. No cause of action
In America
Nova Mink v Trans Canada Airlines [1951] Canada
• P had a mink farm in Canada, minks which are timid and act crazy if scared were
frightened by the low flying aircraft of D, this causing financial loss to the plaintiff
who sued the airline.
• Court said that D did not owe P a duty of care, as this was not a reasonably
foreseeable (that if a plane flew overhead, the minks would react as they did)
• Thus, one must establish reasonable foreseeability to establish a duty of care
Chapman v Hearse (1961) CLR

• Mr Chapman, a negligent driver, caused an accident which resulted in him being
thrown from the car onto the roadway, where he lay in his injured state. Dr.
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Cherry came along and assisted the injured Mr. Chapman. Mr Hearse drove
around the bend and killed Dr. Cherry. The widow of Dr. Cherry sued Mr. Hearse
for damages and was successful.
• Hearse then claimed contribution of damages from Chapman, as he was
contributory to Dr. Cherry’s death.
• Chapman argued that there was no duty of care, there was no reasonable
foreseeability that his act would’ve caused the death of Dr. Cherry
• The HC disagreed stating that there was no need to foresee the precise chain of
events, but to “ask whether a consequence of the same general character was
reasonably foreseeable. Was the likelihood of something of the same general
character foreseeable and not unlikely. You only foresee that you may cause
injury to a class of persons of whom P is one.
• Court said it was foreseeable that if you cause an accident, it is foreseeable
someone will come to the rescue and the rescuer could be injured affecting that
rescue
• Thus Chapman owed a duty of care to Dr. Cherry
• NB: Kirby J, describes this as an undemanding test
Home Office v Dorset Yacht Co. Ltd [1970] AC 1004

• Prisoners had escaped from an English prison and gone on a “rampage”,
damaging a boat they had used in an escape attempt.
• Court said that only those immediate to the prison were able to recover
damages, as it was not foreseeable for those far away from the prison to be
injured by escaped prisoners
• Court said that there has to be this limit, as liability can not be made
indeterminate
Anns v Merton London Borough Council (1978)

• P bought a house within D’s council area. It had been built without their knowledge
on faulty foundations. P sued the council as it has the power to approve building
plans and the power to inspect the construction.
• The court held that the council was liable as it was reasonably foreseeable that if the
council hadn’t inspected the construction, someone would suffer damages.
• Lord Wilberforce 2 stage approach
1 Sufficient relationship of Proximity
2 No duty established if there is contrary consideration (policy may deny or
reduce duty.
• Brennan J in Sutherland Shire council v Haymen rejected this.
Jaensch v. Coffey (1984)

• Car accident, spouse goes to hospital to see injured partner & suffers phsyco
damage from what she hears of condition – Action against D who caused
accident
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• Duty arises out of reasonable foreseeability and further development of
proximity.
• Brennan J rejected anns.
Sutherland Shire Council v Heyman (1985)

• Development of the incremental approach (catagoric approach) modest
extension by analogy with established categories. – current law.
Caparo industries PLCv Dickman (1990) eng –

• Introduced 3 stage test for duty
o Foreseeability
o Proximity
o Fair Just and Reasonable
Perre v Appand (1999)

• Stated Proximity is no longer used as a guide, reasonable foreseeability and
other competing interests used by judges now seems incremental is best.
Carrier v Bonham (2001)

• Carrier was driving a bus, Bonham stepped in front of it, he tried to break but the
bus hit Bonham. Carrier developed adjustment disorder and could not drive
buses causing economic loss.
• Mcpherson JA applied Wilkinson v downton (1897) and found that whether the
consequences were subjectively foreseen is irrelevant. What matters is whether
the consequesnces where reasonably foreseeable. McMurdo P Defined the
Word Calculated to mean likely.
Sullivan v Moody (2001)

• Someone had written report saying these fathers may be pedophiles, court said
report writers duty was to kids not parents.
• Advocated the incremental approach – HC Rejected Caparo 3 stage.
Tame v Morgan 2002

• RBT crazy lady – Foreseeability objective standard.
When does the duty arise?

Reasonable Foreseeability
The duty of care is primarily premised on reasonably foreseeability since (with the
arguable exception of some rescue cases) no liability will arise in its absence. In standard
cases foreseeability of harm issue has largely become a formality due to precedents so
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well established. In other cases the foreseeability issue will be explicitly taken up by the
court. The plaintiff must show that a reasonable person in the defendant’s position
would’ve foreseen that their negligent act would’ve caused injury.
Wyong Shire Council v Shirt (1980)

• Signs saying deep water, meant to say deep in the middle. Court held the test for
Foreseeabilty was Not Far Fetched or Fanciful.
Swaine v Waverly Council (2005)

• Applied similar Standard
S5b CLA
• Changed this standard of foreseeability to not insignificant.
Unforeseeable Plaintiffs
Bourhill v Young (1943) AC
• A motor cyclist crashed and killed himself, and P who only heard the crash and
did not see it, but saw the debris and blood afterwards suffered nervous shock.
• P sued the dead motorcyclists estate for damages
• Court held no duty of care, as no reasonable foreseeability
• Duty of care not owed to the world at large, only owed to those immediately in
vicinity. Each plaintiff owed own duty and cannot rely on someone elses.
• Held to be an unforeseeable plaintiff solely due to her physical position
Chester v Waverly Corporation (1939) 62 CLR 1
• The P a Mother, saw the dead body of her child being pulled out of a unfenced
trench which the child had drowned in which had been dug by Waverly
employees.The mother thus suffered nervous shock.
• P sued Waverly council for nervous shock, as she could not sue on behalf of her
deceased child. Undoubtedly the council owed the child a duty of care, but dead.
• Court Held no reasonable foreseeability that there would be a lasting impact on
the mother from seeing her son pulled from a trench. Emmett J in his
• dissenting judgment took a broader view of reasonable foreseeability.
• NB: Would be decided differently nowadays. This case is a product of its times.
Mount Isa Mines v Pusey (1971) 125 CLR 383

• P employee of D, had gone to the aid of electrocuted co-workers switchboard
malfunctioned and developed acute schizophrenia as a result.
• P sued alleging the disorder was a result of the D’s negligence
• Court took a broad view, referring to Chapman v Hearse held that it was
reasonably foreseeable that the electrocution of co-workers due to D’s
negligence would cause damage to those that went to assist the injured, such as
the plaintiff
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Haley v London Electricity Board [1965] AC 778 House of Lords decision

• D had left an open man hole on the street and used tools to make a small barrier
around the hole when P a blind man, tripped on the tools and fell into the hole
• D argued that P not a reasonable plaintiff, as blind and he was not foreseeable
• Court rejected holding it was foreseeable that there would be blind men on
streets
Levi v Colgate Palmolive Ltd (1941) 41 SR (NSW) 48

• P received a free sample of colgate bath salts in the mail, as she had a very rare
skin disorder, she suffered a bad reaction to the salts
• D argued salts were harmless to everyone, the plaintiff’s position was so unusual
it made her susceptible. Not foreseeable, people like her in the general
population
• Court agreed holding the plaintiff was so unusual, she was unforeseeable
Proximity
• “Proximity … extend[s]to such close and direct relations that the act complained
of directly affects a person whom the person alleged to be bound to take care
would know would be directly affected by his careless act.”(D v S)
• Australian cases commencing with Jaensch v Coffey (1984) added a new
dimension to duty when Deane J. cited Lord Atkin’s explanation in Donoghue v
Stevenson that interposition of an opportunity for intermediate examination of
the bottle before it reached the consumer would meant no longer a requisite
“proximity” and the consumer was no longer within the class of the neighbour.
• This concept of proximity, was proposed to explain and justify decisions where
no duty exists despite foreseeability.
• Court subsequently, in Hill v Van Erp and Perre v Apand criticized the usefulness
of “proximity” as a universal determinant of duty of care and held that the
concept was not a “test” or determinant for the existence of a duty of care.
• The question of when a duty will be imposed in a novel or difficult case remains
problematic with no universal test being recognized by the High Court and
continuing on an incremental approach.
Proximity
Jaensch v. Coffey (1984)
• After a car accident victims spouse goes to hospital to see injured partner &
suffers shock from what she sees and hears of husband’s condition, Sues D who
caused accident and a duty arises out of reasonable foreseeability.
• Deane J explains “the requirement of a relationship of ‘proximity’ in that broad
sense should be accepted as a continuing general limitation or control of the test
of reasonable foreseeability as the determinant of a duty of care.”
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• “[proximity] involves the notion of nearness or closeness and embraces physical
proximity (in the sense of space and time between the person or property of the
plaintiff and the person or property of D, circumstantial proximity such as an
overriding relationship of employer & employee or of a professional man and his
client and causal proximity in the sense of the closeness or directness of the
relationship between the particular act or cause of action and the injury
sustained.”
• In alluding to these possibly policy considerations, Deane J indicates that they
may still have an independent operation
• Brennan J thought that the duty of care as regards nervous shock turned entirely
on the foreseeability of the chock, appeared to recognise a limitation of policy in
required the shock be suffered by “sudden, sensory perception” of an accident.
Gala v. Preston (1991)

• D sued P for negligence in driving when both were involved in a robbery.
• Court expressly considered policy factors, and determined that no duty of care
existed (since it was a join illegal enterprise).
• They acknowledged the idea of proximity, but also “that criminal activity was, of
its nature, fraught with serious risks.”
• Also in the situation, with alcohol being consumed, and involvement in illegal
activities, there was not a relationship of proximity. Standard of care limited due
to policy matters.
Nagle v. Rottnest Island Authority (1993)

• P was injured while diving into a rocky pool operated by D
• Held by encouraging persons to engage in an activity in area Rottnest came
under a duty to take reasonable care to avoid injury to and the discharge of that
duty... require that they warn of any foreseeable risks of injury associated with
the activity so encouraged so Proximity and therefore Duty upheld)
• “This is a case in which it is possible to ascertain the existence of a generalised
duty of care to take reasonable steps to avoid the foreseeable risk of injury to
members of the public who resort to the Basin without looking to foreseeability,
a concept which in many other situations is the influential, if not decisive,
determinant of the existence of a relationship of proximity. Here – foreseeability
is of crtical importance in determining not whether there was a duty of care but
whether there was a breach of duty. However, it is convenient to deal with it as a
separate issue (from the breach)”
Reservations about Proximity in the High Court

Bryan v Maloney (1995) 69 ALJR 375
• P had bought a house built by D for his sister who’d sold it to P who found the
footings for the house were built wrong,and needed fixing at a considerable cost
so bout action against D.
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• Held that the defendant did owe a duty of care to the plaintiff even though it
was a “second hand house”, but not on the grounds of proximity.
• Brennan J found the notion of proximity to be too elastic to provide any real test:
“The concept of proximity … defies definition… unless it has a definite meaning, it
is useless toward the notion of proximity in recent times”
Hill v Van Erp (1997)

• Solicitor D negligently wrote will causing economic damage to beneficiary P, 4:1
held D owed P a duty of care.
• Brenan did not mention proximity, Mchugh restated skepticism about proximity,
Gummow J said “ concept of proximity is of limited use”
• Dawson J “proximity is not a unifying principle”, “not a universal determinant of
the existence of a duty of care”. “expresses a result, rather than a process and is
a convenient way of labelling the extra requirement, in addition to reasonable
foreseeability to establish a duty of care”
• Only Gaudron J expressed unreserved support for proximity.
Romeo v Conservation Commission of the Northern Territory (1998)

• 2 drunk girls, fell off cliff
• HC decided the commission was not negligent in not erecting signs as they were
intoxicated and failed to take reasonable care for their own safety.
• HC Discusses Limitation on council Resources.
New Approaches to the Issue of Proximity

Perre v Appand (1999) 73 ALJR 1190
• Potato wilt caused neigboring farm economic loss due to iability to export
• Proximity held not a test. In this decision, the court looked at and based their
judgments on the following:
1. The protected Interests and ‘salient’ features test (Gleeson CJ and
Gummow J). Therefore to determine a duty of care, the ‘most noticeable’
features which combine to give a sufficiently close relationship are
considered and give rise to a duty of care.
2. Recognised Legal Rights Test (Gaudron J) – and imposed a duty of care to
take reasonable steps to avoid a foreseeable risk of economic loss when
they know that their acts or omissions may impact upon someone and
that person is in no position to protect their interests.
3. Three Stage Caparo v Dickman test (Kirby J) – reasonable foreseeability,
proximity and the requirement of fairness and reasonableness operate
concurrently.
4. Incremental Approach (McHugh J) – demise of proximity, rejects
Gaudron & Kirby JJ’s approaches, but emphasised vulnerability of the
claimant as a key factor.
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5. Hayne J agrees with McHugh that a unifying principle could not be found.
It was relevant to establishing a duty of care that D knew of the claimants
as particular persons and not as members of an unascertained class.
6. Factors in Combination and Incremental approach (Callinan J) - pure
economic loss is one where the courts should move incrementally.
Applied factors of the case to determine that a duty of care was
established because of a ‘sufficient degree of proximity, foreseeability, a
special relationship, determinancy of a relatively small class, a large
measure of control on the part of D”
Duty Categories: To whom is a duty of care owed?

In general terms a person owes a duty of care to those who are so closely and directly
affected by his or her act that he or she ought to reasonably have them in
contemplation as being so affected when undertaking the act in question. Examples of
neighbours:
Consumers
Donoghue v Stevenson [1932] AC 562
• Duty of care from the manufacturer to the consumer
Grant v AKM [1936] AC 85

• Court reiterated that the manufacturer has a duty of care to the ultimate
consumer
Road Users
Bourhill v Young [1943] AC 92
• Held that the motorist did not owe the plaintiff a duty of care in this instance, as
she was an unforeseeable plaintiff, however in different circumstances, the
judgement would’ve been different e.g. if plaintiff was directly next to accident
Users of Premises
Australian Safeway Stores v Zaluzna (1987) 162 CLR 479
• P entered D’s store and slipped over injuring herself
• Court expanded common law categories of duty of care to a visitor/trespasser on
a persons land. The courts said that the test is reasonable foreseeability of a real
risk or injury to a class of person of which the visitor is a member
Purchasers of Premises
Bryan v Maloney (1995) 69 ALJR 375
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• The court held that there was still an existing duty of care between the builder
and the subsequent purchaser
The Unborn Child

Watt v Rama [1972] VR
• “There can be no justification for distinguishing between the rights… of a newly
born infant returning home with his /her mother from hospital in a bassinet
hidden .. mother is being driven by her anxious husband to the hospital on way to
the labor ward to deliver such a Child” Per Gillard J
• Winneke CJ and Pape J gave a general principle as to when the duty arises:
“…depends upon a relationship existing, or coming into existence, between the
parties which is capable in the particular circumstances of the case of imposing a
duty on the one in relation to the other.”
• To get around foetus not having the rights to sue, Their Honours conclude that
the relationship “crystallises” once the child is born3. This seems to be a bit
broad yet it follow the notion that a man can be as negligent as he wants
however once he causes damage, then a relationship is formed between the
victim and the defaulter.
Lynch v Lynch (1991) 25 NSWLR 491

• P, born with cerebral palsy, sued her mother for negligence in driving a motor
vehicle while she was still in the mother’s womb.
• Court Accepted the principle in Watt v Rama that “a third party may be liable in
damages to a child who is born with disabilities which resulted from injuries
received… as a consequence of the third party’s negligent driving..”
• This is distinguished from wrongful life, where the parents do not want the child
and sue the negligent doctor for the fees to bring up the child
Waller v James 2002
Harriton v Stephens [2002] NSWSC 461
Edwards v Blomeley 2002
Rescuers – see CLA pt 8 “Good Samaritans”

There are two separate issues in rescue:
The ‘duty’ to rescue
There is no positive legal obligation in the common law to rescue
There may however exist a duty to rescue in master servant relationships or boat owner
and guest relationships for instance
Horsley v Macleran (The Ogopogo) (1971) 22 DLR
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• One is only required to use reasonable care and skill ion the rescue
The duty of care owed to the rescuer

The rescuer is generally protected : torts recognizes the existence of a duty of care owed
to the rescuer
Note however the case of:

Sylvester v GB Chapman Ltd (1935)
• The plaintiff was near a circus when he realized there was a fire near the animal
enclosures, went to put out the fire and was mauled by a leopard
• In this case, the court held that the circus owner did not owe the plaintiff a duty
of care, the duty of care is owed to the plaintiff by the person who bought about
the situation that made the rescue necessary
• ‘The cry of danger is the summons to relief. The law does not ignore these
reactions of the mind. It recognizes them as normal… and places their effects
within the range of the natural and the probable [and for that matter the
foreseeable] per Cardozo J in Wagner v International Railway Co. (1921)
Chapman v Hearse (1961) 106 CLR 112

• Hearse was a driver of a vehicle that crashed, Dr. Cherry went to give assistance,
Chapman runs him over, thus killing him.
• Court held that Hearse owed Dr. Cherry a duty of care Videan v British Transport
Commission (1963) (rescue attempt to get a child trespassing on railway line)
Rescuers may recover for both physical injuries and nervous shock.
Mount Isa Mines v Pussey (1970)

• Unforeseeable Plaintiffs
• In general the duty is owed to only the foreseeable and not abnormal Plaintiffs.
Bourhill v Young [1943] AC 92

• The duty is not owed to the world at large
Haley v L.E.B. [1965] AC 778
Home Office v Dorset Yacht Co. Ltd [1970] AC 1004

• Prisoners had escaped from an English prison and gone on a “rampage”
• Court said that only those immediate to the prison were able to recover
damages, as not foreseeable for those far away to be injured by escaped
prisoners
• Court said that there has to be this limit, as liability can not be made
indeterminate
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Breach of Duty
For the plaintiff to succeed in the tort of negligence, the plaintiff must prove that the
defendant had behaved negligently and breached a duty of care.
Negligent Act
Vaughan v Menlove (1837) 132 ER 490
• Authority for the ‘reasonable person’s actions. The reasonable person does not
take a precaution to avoid a risk which is not reasonably foreseeable.
• “Negligence is the omission to do something which a reasonable man guided
upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or something which a prudent and reasonable man would not
do”.
Blythe v Birmingham Waterworks (1856) 11 Exch 781 per Alderson B

• “Negligence is the omission to do something which a reasonable man guided
upon those considerations which ordinarily regulate the conduct of human
affairs, would do, or something which a prudent and reasonable man would not
do”
• The defendant’s conduct is measured against the standard of a reasonable
person, an objective standard is applied. The plaintiff must prove on the balance
or probabilities, that the defendant omitted to do something which a reasonable
person would have done, or something a reasonable would not have done.
• Court held reasonable person would not take steps to avoid something
unforeseeable.
• “Whether the act or omission in question is one which a reasonable person
would recognise as posing an unreasonable risk must be determined by
balancing the magnitude of the risk in the light of the likelihood of an accident
happening, the possible seriousness of its consequences, against the difficulty,
expense or other disadvantage of desisting from the venture or taking a
particular precaution.” Fleming.
Papatounakis v ATC (1985)

• Reasonable person is the “man on the Bondi Tram”
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CASES TO SUPPORT THE CLA
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to
have known), and – Wyong SC v Shirt, Nagle, Romeo, Wagon Mound 2
(b) the risk was not insignificant, - narrowed the previous Bolton v Stone
(c) in the circumstances, a reasonable person in the person’s position would have taken
those precautions.
(2) In determining whether a reasonable person would have taken precautions against a
risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
Bolton v Stone
(b) the likely seriousness of the harm, Paris v Stephny BC (1951)- the risk of injury may
not be different but the reasonable person must take into account the gravity of the
consequences- inly need to firesee the type of injury not the exact injury
(c) the burden of taking precautions to avoid the risk of harm,
Caledonian colliers ltd v Speirs 1957- when a safety measure has a degree of expense it
must be considered whether this drastic measure must be adopted to alleviate risk
(d) the social utility of the activity that creates the risk of harm.
Watt v Hertfordshire – the jack was not secured & hit a fireman on the way to an
emergency the risk must be balanced against the social need, firemen impliedly expect
the inherent risks of his job, not appropriate to apply a duty due to the importance of
the situation
Wagon Mound No. 2 [1966] 2 All Er 709 - "Not Insignificant" risk - CLA S. 5B (1)
• Authority for the reasonable foreseeability of risk.
• The Wagon Mound was a ship being refuelled, oil leaked and chief engineer D
decided to do nothing, an explosion occurred because of welding in nearby
wharf.
• Lord Reid “The only question being if a reasonable person, in the position of the
chief engineer, knew there was a real risk of fire. Real risk is one which would
occur to the mind of a reasonable person in the position of the defendant’s
servant and which would not brush aside as far fetched or fanciful”
• Thus, the standard was a risk which was not “far fetched” or “fanciful”
• Thus the defendant was found liable. As the fuel oil catching fire was not far
fetched or fanciful risk
Reasonable Forseeability of Risk in Australia - "Not Insignificant" risk - CLA S. 5B (1)

Wyong Council v Shirt (1980) 146 CLR 40
• P was water skiing in a body of water under the jurisdiction of the defendants
• D had dredged a deep channel in the middle of the body of water in question
and placed signs on the edge of the dredged channel that stated “Deep Water”
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• The plaintiff mistook the signs meaning the whole river was deep and water
skied into a shallow part of the water and was made a paraplegic
• The plaintiff sued the defendant saying the signs were misleading.
• The courts held that a risk of injury which is remote in the sense that it is
extremely unlikely to occur, may nevertheless constitute a foreseeable risk. A
risk which is not far-fetched or fanciful is real and therefore foreseeable.
Nagle v Rottnest Island Authority (1993) 177 CLR 423

• Highpoint of the courts pro-plaintiff views on negligence
• P went swimming in the “Basin” in Rottnest Island, a popular rock pool
• Evidence said obvious that there were rocks at the bottom of the pool
• P claimed to have not seen the rocks and dived into the pool, thus becoming a
• Paraplegic and sued stating that there should have been warning signs erected,
D said it was obvious to anyone that there were rocks at the bottom and
common sense would’ve prevailed
• HC held even thought the risk of someone doing what the plaintiff did was
unlikely, it was not far-fetched or fanciful, and thus it is still a reasonable risk.
Calculus of Negligence or Balancing Considerations

Once the courts have decided that there was a foreseeable risk, the question then
posed to the court is would the reasonable person acted differently. The court uses the
“Calculus of Negligence” to determine if the defendant had committed a tort.
Calculus of Negligence
(2) In determining whether a reasonable person would have taken precautions

against a risk of harm, the court is to consider the following (amongst other
relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
Probability - Calculus of Negligence CLA S.5B (2)a

Bolton v Stone (1951) 1 All ER 1078 - S.5B (2)a
• P a woman who lived opposite a cricket oval in England and had erected an
unusually high fence to prevent sixes from leaving the ground
• Evidence said that over long history of the club, the ball had only left very rarely
• The plaintiff was out in the garden when a six hit out of the ground hit her
• There was no doubt the club owed the plaintiff a duty of care. Court held that
while the risk was foreseeable; it was not far-fetched or fanciful.
• Thus, the risk of damage to a person was so small, a reasonable person would
not take precaution to avoid it, in these circumstances so no breach
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Romeo v Conservation Commission of the Northern Territory (1998) - S.5B (2)a
• Probability of such circumstances was also low
Seriousness of Injury - Calculus of Negligence CLA S.5B (2)b

Paris v Stepney Borough Council [1951] AC 367 CLA S.5B (2)b
• P a one eyed mechanic working for D was struck in his good eye by rusty metal
displaced by his hammer while working resulting in loss of sight in his good eye.
• P sued D for being negligent for not providing him with protective eyewear
• Evidence showed that the defendant did not supply protective eyewear to any of
its mechanics
• The house of lords said that D was negligent in this case as an injury to the
plaintiff was so serious that a reasonable employee would’ve supplied protective
gear to the plaintiff
Difficulty, Expense or burden of Precaution - Calculus of Negligence CLA S.5B (2)b

Caledonia Colliers v Speirs (1957) 97 CLR 202 S.5B (2)c
• P, the widow of a man killed in a level crossing accident by an out of control coal
trucks that were on the defendants private line, accident could’ve been
prevented by the installation of “catch points” on the line, which would’ve
derailed the runaway trucks, the defendant argued that this action was too
extreme and expens
• HC said it was a drastic measure, trucks and the railway line may be damaged,
but in the interests of public safety and preserving lives, it was a cost a
reasonable person would’ve taken so defendant should’ve installed the devices,
expense and inconvenience was no excuse
Romeo v Conservation Commission of the Northern Territory (1998) - S.5B (2)c

• Probability of such circumstances was also low
Vozza v Tooth (1964) 112 CLR 316

• P job was to remove glass bottles from the bottle cleaning machine, where
bottles were heated to a high temperature during the cleaning process, and was
known that some bottles would’ve exploded upon removal from the machine
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• The plaintiff was given heavy leather gloves to protect against this by employer D
• Glass bottle exploded and the plaintiff’s hand was injured
• Evidence said that the plaintiff could not have provided more protection; any
thicker gloves would’ve prevented the plaintiff from using his hands. Defendant
argued that they had done all they could, there was no more protection available
• The High Court agreed, there were no more practical alternatives, the plaintiff
was not successful in this instance, as the defendant had done all they could
Utility of Conduct - Calculus of Negligence CLA S.5B (2)d

Was the defendant justified in taking the risk?
Watt v Hertfordshire County Council [1954] 1 WLR 835 - CLA S.5B (2)d
• P, a fireman employed by D was called with squad to an emergency requiring a
heavy lifting gear. Which as proper car wasn’t available p placed in another
truck was absent causing himself injury during journey.
• Held that the defendant was not negligent, as the fact that the truck was
travelling to an emergency justified the risk taken
Mercer v Commissioner for Road Transport (1936) 56 CLR 580

• The plaintiff was a passenger on a tram, he was injured when the tram crashed
• The reason for the crash was that the driver fainted at the wheel
• The tram was not fitted with the “Dead mans handle” a safety device that is
designed to stop the tram if the driver was to faint
• The defendant argued that no where in the world, was a “Dead mans handle”
fitted on a two man tram, thus there was no need for the device in this instance,
hence there was no negligence, as it was world wide practice to not fit the
devices on two man trams
• The High Court held that there was negligence, courts are not bound by industry
practice, it is wholly up to courts to decide if something is negligent
Professionals & Medicine

Though the courts held that they had ultimate power to decide if something is
negligent, Doctors argued that they should dictate the standard of care for the medical
profession
Bolam v Friern [1957] 1 WLR 582 -English decision

• The court decided that if a responsible body of medical opinion said a medical
defendant had acted responsibly, then the court had to find in favour of the
defendant. In other words, if the body said the defendant was not negligent, the
court could not find the defendant negligent
• Court also said that there could be more than one responsible body, as long as
the defendant could show a responsible body said that the defendant was not
negligent it was sufficient
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Did the English principles in Bolam v Friern apply in Australia?
Rogers v Whittaker (1992) 175 CLR 479

• High Court said the Bolam principle of(peer professional opinion) did not apply in
Australia for medical treatments, it is still open to the courts to decide if the
doctor’s behaviour was negligent
Naxakis v Western General Hospital (1999) 73 ALJR 782

• The High Court expanded its scope, by saying Bolam did not have any application
in Australia
• It was open to the courts to decide negligence
• This position has been changed by the Civil Liability Act in New South Wales
Division 6 - Professional negligence

5O Standard of care for professionals
(1) A person practising a profession (a professional) does not incur a liability in
negligence arising from the provision of a professional service if it is established that the
professional acted in a manner that (at the time the service was provided) was widely
accepted in Australia by peer professional opinion as competent professional practice.
(2) However, peer professional opinion cannot be relied on for the purposes of this
section if the court considers that the opinion is irrational.
(3) The fact that there are differing peer professional opinions widely accepted in
Australia concerning a matter does not prevent any one or more (or all) of those
opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be universally accepted to be considered
widely accepted.
• The act states that a professional is not negligent if it is widely accepted in

Australia by peer professional opinion as competent; this expands the Bolam rule
to cover all professionals
• Also, the practice does not have to be universally accepted, just widely accepted
The Reasonable Person Standard

• The courts held that a reasonable person was the “man on the Bondi tram”, so is
suppose to be an objective person.
• However whole idea seems cultural bias and gender bias, the reasonable person
is decided by white Anglo-Saxon males, predominantly Christian
• In some instances, a characteristic of the defendant is taken into account
Age
McHale v Watson (1966) 115 CLR 199
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• A 12 year old threw a sharp metal object and blinded the plaintiff
• The court was posed with the problem of whether the boy should be judged as a
reasonable adult, or as a reasonable 12 year old
• High Court said that the age must be taken into account
• The High Court said stupidity is not an excuse, but age is relevant
Daley v Liverpool Corp [1939] 2 All ER 149

• The plaintiff was a 67 year old pedestrian who was injured by the defendant
• The court was posed with the question, of whether the plaintiff was contributory
negligent for the injuries
• The court held that it was relevant to consider her age when considering if she
was negligent
Physical and Intellectual Disability

Adamson v Motor Vehicle Insurance Trust (1956) 58 WALR 56
• The defendant was suffering from a mental disorder and thought that his work
mates were trying to kill him, so he stole a car and hit the plaintiff
• The court was posed with the question of whether the defendants mental illness
should be taken into account in the reasonable person test
• The court held that it did not, saying that the defendant had understood what he
was doing at the time
Knowledge by the Plaintiff of Competence, Skill or Disability of Defendant

Cook v Cook (1986) 68 ALR 353
• The plaintiff was aware the defendant could not drive
• The plaintiff insisted on the defendant driving and this resulted in the defendant
crashing the car with the plaintiff as a passenger
• The plaintiff sued the defendant (in essence, getting insurance)
• Court had to decide if the defendant owed the plaintiff a duty of care that was
the level of a competent driver or as an incompetent driver
• The court held that the defendant owed the plaintiff a duty of care comparable
to an incompetent driver, as the plaintiff had knowingly got into the defendants
car, with the knowledge the defendant could not drive
• But if the defendant had injured another road user, then the defendant was to
be measured as a competent driver
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Special Skills – Professional and Specialist reasonable Standards
Voli v Inglewood Shire Council (1963) 110 CLR 74
• Voli was a professional architect Voli who failed to provide strong enough
bearers for a stage ,thus the stage collapsed
• What standard of care should be applied to a professional?
• HC said that an architect is bound to operate with due care and diligence, the
architect must use the level of skill attributable to a reasonable architect
Roe v Minister for Health [1954] 2 QB 66

• What was considered reasonable in 1900 may not be reasonable now
H v Royal Alexandria Hospital (1990) Aust torts reports

• The plaintiff child sufferer of haemophilia was given blood transfusion at a time
when AIDS first appeared and contracted HIV and subsequently got AIDS
• The child first got blood in March 1982 and his second transfusion was in
September 1983
• AIDS did not appear until 1982, the first case of AIDS in Australia was not
diagnosed until April 1983
• There was no understanding that the disease was transferred by blood
• A test for AIDS was not developed until 1984
• The court held that for the first transfusion the hospital was not negligent, as it
could not have known that there was a risk
• By September 1983, the court held, that a reasonable hospital should’ve been
aware of the dangers
• The plaintiff could not establish which transfusion transmitted AIDS; the plaintiff
was unable to establish that the latter transfusion caused him to contract HIV.
Time was crucial I this case.
Onus of proof
Negligence as a Question of Fact
The issue whether a duty of care exists is a question of law
The issue whether the duty and that matter that the standard of care in a particular
instance has been breached is a question of fact
5E Onus of proof
In determining liability for negligence, the plaintiff always bears the onus of proving, on
the balance of probabilities, any fact relevant to the issue of causation.
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The plaintiff always bears the onus of proof. In common law, he who asserts the point is
faced with the task of proving it. The Civil Liability Act governs tort law, but it is not an
exhaustive piece of legislation.
The Scope of the Plaintiff’s Burden

• The P must prove all the factual elements of his/her case whether the factual
elements relate to duty, breach, causation or remoteness of damage
• The D must prove all issue relating to his or her defence including any issues of
voluntary assumption of risk, inherent risk and contributory negligence
Inferences and Conjectres

An inference is a deduction based on objective facts. Conjecture is based on mere
guesses. P’s evidence must not be conjecture. It must be based on legal inferences.
Holloway v McFeeters (1956) 94 CLR 470

• ‘In a civil cause, you need only circumstances raising a more probable inference
in favour of what is alleged... Where direct proof is not available, it is enough if
circumstances appearing in evidence give rise to a reasonable and definite
inference. They must do more than give rise to conflicting inferences of equal
degree of probability so that the choice between them is not mere conjecture’
• Thus, this shows that the standard of proof is on the balance of probabilities
Res Ipse Loquitor

The matter speaks for itself; the facts by themselves speak loudly for negligence
Where might it be a necessary mechanism?
Scott v London & St Katherine Docks Co. (1865) 158-159 All ER

• The plaintiff was walking along a dock owned by the defendants
• The plaintiff had a bag of flour fall on him
• One does not expect bags of flour to fall and hit you when walking along a dock,
thus this speaks loudly for negligence
• Per William Erle: Where the thing that causes the accident is shown to be under
the control of the defendant or his/her servants and the accident is such that in
the ordinary course of things it does not happen if those who have control use
proper care, it affords reasonable evidence, in the absence of explanation by the
defendant that the accident arose from want of care
To argue Res Ipse Loquitor:
The defendant must prove that it was an accident that is under the control of the
defendant e.g. the bag of flour would not have fallen if it was properly secured by D
The Conditions for Res Ipse Loquitor

• An absence of explanation of cause of accident
• The event does not usually happen without negligence
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• The event must be in the control of the defendant
Schellenberg v Tunnel Holdings Pty Ltd (2000) 74 ALR 743:

• The plaintiff was using a hose in the course of employment
• The Hose broke loose and spun around and hit him
• The court held NO Res ipsa loquitor because explanation was the hose had
broken off so the question was, is there negligence by the defendant?
Nesterczuk v Mortimer
• In an accident, there needs to be a “complete picture” to the accident
Dulhunty v JB Young
• The plaintiff went into a haberdashery store, slipped on a grape and was injured
• The defendant argued that she does not sell grapes, nor did she eat any, so there
was no explanation as to where the grape came from
• Thus, in these circumstances, there was no Res Ipse loquitor, as there isn’t a
complete picture
Ordinary Course of Things

The likely cause of the accident must be within the knowledge of the ordinary person
Mahon v Osborne [1939] 2 KB 14

• The plaintiff had surgery on an abdominal complaint
• The defendant had left a surgical swab in the abdomen
• The procedure was to have a stocktake at the end of the surgical procedure to
make sure all instruments were accounted for
• Court said it was quite obvious the leaving of the swab in the body was negligent
• The accident must be of a type which more often than not is caused by
negligence
The Absence of Explanation

Schellenberg v Tunnel Holdings Pty Ltd (2000) 74 ALR 743:
• The plaintiff was using a hose in the course of employment
• The Hose broke loose and spun around and hit him
• The court held NO Res ipsa loquitor because explanation was the hose had
broken off so the question is, was there negligence by the defendant
Sole Control of the Defendant

Where the situation that leads to the accident is not under the sole control of the D, P
may not be able to use res ipse
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Kouris v Prospectors Motel Pty Ltd
• There was a fire in store room under Ps control and P was injured in this fire
• Court held that the since the plaintiff was also in control of the storeroom, the
defendant could not be held liable, as the plaintiff could also have contributed to
the accident
The Effect of the Doctrine

• It permits the Plaintiff to commence his/her case in circumstances where proof
would be
• otherwise impossible
• This doctrine does not shift the onus of proof from the P to the D. It remains
with P. However, the D bears the evidentiary onus to adduce evidence if no
other explanation of the injury or accident is produced. Where there is no
explanation, the jury may make a finding for the Plaintiff
Causation
General Causation
There must be a causal link between Defendant’s breach of duty and damage to the
Plaintiff or to the Plaintiff’s property
Causation: The Elements

Causation involves two fundamental questions:
1. Factual question whether D’s act in fact caused P’s damage: causation-in-fact
2. Whether, and to what extent D should be held responsible for the consequences of
his conduct: legal causation
Principles of Causation under the Civil Liability Act

Division 3 - Causation
5D General principles
(1) A determination that negligence caused particular harm comprises the following
elements:
(a) That the negligence was a necessary condition of the occurrence of the harm (factual
causation), (this is based on March v Stramare)
(b) That it is appropriate for the scope of the negligent person's liability to extend to the
harm so caused (scope of liability). March v Stramare, chapel v hart
(2) In determining in an exceptional case, in accordance with established principles,

whether negligence that cannot be established as a necessary condition of the
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occurrence of harm should be accepted as establishing factual causation, the court is to
consider (amongst other relevant things) whether or not and why responsibility for the
harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the

person who suffered harm would have done if the negligent person had not been
negligent:
(a) The matter is to be determined subjectively in the light of all relevant circumstances,
subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she
would have done is inadmissible except to the extent (if any) that the statement is
against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider
(amongst other relevant things) whether or not and why responsibility for the harm
should be imposed on the negligent party. Chapel v hart
Causation in-fact
To be successful in a claim for a remedy, P needs to prove that the loss for which he/she
seeks compensation was caused in fact by the D’s wrongful act
The “But For” Test

Traditionally, a “But for” test is applied to test whether the defendant’s wrongful act did
in fact cause the plaintiff’s injury
But for the Defendant’s conduct, would the injury to the plaintiff happened?
If the answer is No, the defendant is not liable for the plaintiff’s loss
The Function of the “But for” Test

The primary (negative) function is to assist in eliminating factors which made no
difference to the outcome.
The “But for” Test in the High Court

Fitzgerald v Penn (1954) 91 CLR 268
• ‘Causation is all ultimately a matter of common sense…. [It] is not susceptible of
reduction to a satisfactory formula’ (per Dixon, Fullagar and Kitto JJ)
Barnett v Chelsea and Kensington Hospital Management Committee(1969) eng

• Plaintiff had arsenic poisoning, turned away by hospital,
• Held hospital not liable because even if they had not breached their duty and a
doctor had come, by the time he got there the guy would have been dead
anyway so no causation.
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March v E& MH Stramare (1991) 171 CLR 506 –

• Truck parked outside fruit shop drunk driver drove into it. 2 causes of harm.
• The “but for” test gives rise to a well known difficulty in cases where there are two
or more acts or events which would each be sufficient to bring about the plaintiffs
injury. The application of the tests gives the results, contrary to common sense, that
neither is a cause. The application of the tests proves to be either inadequate or
troublesome in various situations in which there are multiple acts or events leading
to the plaintiff's injury (per Mason J)
Bennett v Minister of Community Welfare (1992) 176 408

• ‘If the but for ‘test is applied in a practical common sense way, it enables the
tribunal of fact, consciously or unconsciously, to give effect to value judgments
concerning responsibility for the damage. If the test is applied in that way, it
gives the tribunal an unfettered discretion to ignore a condition or relation which
was in fact a precondition of the occurrence of the damages’
Material Contribution
In general, it is not sufficient for a plaintiff to show that the negligence was one of
several
possible causes; it needs to be demonstrated that D’s conduct was the most probable
cause of P’s damage.
Bonnington Castings v Wardlaw [1956] AC 613

• The plaintiff had a lung disease because of fumes the employer had exposed him
to, plus he had exposed himself to
• House of Lords held: P must make it appear at least that on the balance of
probabilities the breach of duty caused or materially contributed to his injury
Chappel v Hart (1998) 156 ALR 517

• Court noted that the Plaintiff must show the Defendant’s action materially
contributed to the Plaintiff’s injury
Increase in Material risk

M’Ghee v National Coal Board (1972) 3 All ER 1008
• The Plaintiff claimed employer’s failure to provide showers to wash away residue
caused his dermatitis
• The doctors were not certain if showers would have stopped the plaintiff
contracting dermatitis D held liable but mainly on policy grounds
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Wilsher v Essex Area Health Authority (1988)
• Rejected the M’Ghee approach and refused to equate an increase in risk with
proof of causation
Wallaby Grip(BAE) Pty Ltd (in liq) v MacLeay Area Health Service
• “A material increase in the risk of injury by a defendant is not legally equated
with a material contribution to the injury by a defendant. However, in some
circumstances if it were proved that the defendant did materially increase the
risk of injuring the plaintiff then the court might infer causation, i.e. that the
defendant’s negligence materially contributed to the injury”
Multiple Causes: Types

Concurrent sufficient causes
Where two or more independent events cause the damage/loss to D ( e.g., two separate
fires destroy P’s property)
Successive sufficient causes

Baker v Willoughby; Faulkner v Keffalinos;
• D2 is entitled to take P (the victim) as he finds him/her
• Where D2 exacerbates a pre-existing loss/injury (such as hasten the death of P)
D2 is liable only for the part of the damage that is attributable to him
Intervening Causation: Novus Actus Interveniens

Intervening causation is a break in the chain of causation; this defers liability from the
defendant. In intervening causation, something intervenes and breakjoint s the chain of
causation between the negligent act and the damage to the plaintiff. If the defendant is
successful in this argument, the defendant incurs no liability
Chapman v Hearse (1961) 106 CLR 112

• Hearse argued that Chapman’s negligence broke the chain of causation. i.e.
Chapman was the one that ran over and killed Dr. Cherry
• Chapman argued that it was reasonably foreseeable that if you cause an
accident, it was foreseeable that a rescuer could be injured
• The High Court said that reasonable foreseeability was not a test for causation
• The court held that both parties were liable for Dr. Cherry’s death
March v Stramare (1991) 171 CLR 506

• The Stramare Brothers were fruit and vegetable merchants
• They had parked their truck in the middle of a highway to load/unload goods.
The road was well lit and the hazard lights for the truck was on
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• P, March, drove into the back of the truck and was subsequently injured
• The defendant argued that the plaintiff had caused his own injuries. March’s
own negligence was the intervening causation
• Court did not agree, said it was 30% March’s fault and 70% the defendants
• The High Courts Mason CJ said there is no causation rule, have to make value
judgements, that consider public policy and common sense
• A risk that you create can not be a novus actus interveniens. In this instance, the
defendants had created the risk by parking their truck in the middle of the road
State ral Authority of NSW v Wiegold(1991)
• fell lost job started selling drugs was charges sued employer, court found no
causation. Shows difficulty of march v stramare app. But its app in not condoning
criminal activity for policy consideration.
Medlin v SGIC (1994) 182 CLR 1

• P was a university professor who was injured in an accident caused by D
• P recovered and returned to work, found that he couldn’t cope and retired early
• P sued for lost earnings, including the amount that he would’ve recovered if he
retired at the normal age
• D argued that it was the plaintiff’s own choice to retire early; it was not due to
the defendant’s actions. Thus this was a novus actus interveniens
• The High Court disagreed, it held that the plaintiff’s early retirement was due to
the defendant, thus the defendant was liable
Curmi v McLennan [1993] Aust Torts Reps

• The defendant was the owner of a pellet gun, the pellet gun was kept at his
home, the gun was not locked up
• D’s son invited friends over and deliberately pointed the gun at P and shot him
• The plaintiff was injured and sued the defendant, stating that his negligence in
storing the gun caused the injuries
• The defendant argued that his son’s act was an intervening act
• The High Court disagreed saying the intentional firing of the gun by the son did
not sever the causative link, as the father had created that very risk. If the
defendant creates the risk, it is not an intervening act
Canterbury Bankstown RLFC v Rogers (1993) Aust Torts Rep

• Rogers was a victim of an illegal tackle suffered in sydney
• After he recovered from the tackle, he went to England to play, to regain match
• Whilst he was in England, he was injured again, he said he was injured because
of the illegal tackle he suffered in Sydney
• The court held that the subsequent injury was no more than a co-incidence;
there was no link to the defendant’s tortious conduct. The defendant’s conduct
only put the plaintiff in a position which made the injury likely, but D did not
cause it.
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• Thus, new injury was an intervening act.
Mahony v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522

• P was a workman, employee of D, injured at work due to the D negligence, went
to a hospital to be treated but doctor treated her negligently and made injury
worst
• D said the doctors negligence was an intervening act and that he should not be
held responsible for the exasperated injuries
• The HC held that as long as the plaintiff had acted reasonably in seeking medical
treatment, the defendant can not be found not liable for exasperated injuries
• But, inexcusable medical treatment may amount to an intervening act
• Poor treatment is a reasonably foreseeable consequence of the original injury
and doctors negligence must be “so bad in law” before original defendant will
be obsolved.
Remoteness of Damage
Should a defendant be held liable for all of the plaintiff’s damage? Is there a limit to the
liability a defendant could incur? Yes, the courts agreed that there should be a limit to
the defendant’s liability
The “Direct Consequences” Test

Re Polemis & Furness, Withy & Co Ltd (1921) 3 KB 560
• The direct consequences test, the courts held that the defendant was only
responsible for the direct consequences of his act, whether intentional or not.
• Not applicapable anymore, as too narrow, it’s a pre D&S test.
The “Reasonable foreseeability” Test

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound
(No.1)) (1961) AC 388
• Oil spill, defendant co assured them that welding would not be of any danger
however it lead to a fire and property was damages. The plaintiff sued.
• The courts said the test for remoteness was reasonable foreseeability of damage
(it could cover both direct and indirect damage as long as not too remote if they
are reasonably foreseeable.
• The defendant argued that they were not liable, as it was not reasonably
foreseeable that the wharf would burn down
• The courts said it was fairer to ask what damage D could reasonably foresee
• Overruled the re polomis test of direct consequence which ”leads to nowhere
but the neverending and insoluble problems of causation”
• The courts said that the defendant could not foresee a fire, thus they were not
liable
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Hughes v Lord Advocate (1963) AC 837

• The plaintiffs were two boys who came across an open man hole, the man hole
was left open by the defendant’s employees
• The employees had erected a campus around the man hole and left four paraffin
lamps around the hole to mark the hole. They also left a ladder in the hole
• The two boys came across the hole and took one lamp and went down the man
hole to explore, one boy dropped the paraffin lamp in the hole and caused a
large explosion, which seriously burnt both boys
• The defendant said it was not foreseeable that someone would be burnt by the
explosion of the paraffin lamp
• The courts held that it was foreseeable that a burn of some sort would occur,
immaterial that the extent of the injury was greater than what was foreseeable
• So Extent of harm and chain of events leading to event are irrelevant so long as
the general kind of harm should have reasonable been foreseen.
Doughty v Turner Manufacturing (1964) 1 QB 518

• This case distinguished the “Hughes v Lord Advocate” judgement
• The employer used vats of molten acid, the vats were covered by asbestos lids
• An asbestos lid was knocked into the vat
• Shortly afterwards, there was an explosion and the plaintiff was injured by the
stream of molten acid
• The court of appeal held that the damage to the plaintiff was too remote, only
foreseeable damage was from the splash back from the lid. The plaintiff was
inured by the eruption of the molten acid from an unforeseeable chemical
reaction
• The foreseeable danger did not materialize and the subsequent injury by the
eruption of the molten acid “Could not be described merely as a variant of the
perils from the splashing”
• An Australian Authority
Wagon Mound No. 2 [1966] 2 All Er 709

• The Wagon Mound was a ship being refuelled, oil leaked and chief engineer D
decided to do nothing, an explosion occurred because of welding in nearby
wharf.
• This time the defendant chief engineer was found liable. As the fuel oil catching
fire was not far fetched or fanciful risk
• Court also said here:
Mt. Isa Mines v. Pusey (1970) 125 CLR 383 – Australian authority following hughs
• P suffered nervous shock from attending to two workmates that were
electrocuted and burnt due to the defendant’s negligence
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• D argued that the damage was too remote, it was not foreseeable that the
plaintiff would suffer from acute schizophrenia
• Held you do not have to foresee particular events, just harm of some kind
• The “comfortable latitudinarian doctrine”, characterise the plaintiff’s loss with
some latitude, it is easy to see foreseeability
Jolley v Sutton London Borough Council (2003)
• 14 Year old plaintiff decided to repair and sail a rotten old boat which council had
placed sticker on it not to, but had failed to take away. Boat fell on boy making
him paraplegic.
• HOL held type of accident reasonably foreseeable, confirms D does not have to
foresee the extent of harm.
Rowe v McCartney (1976) 2 NSWLR 72

• The plaintiff was involved in a motor accident after allowing a friend to drive her
car. Her friend became a paraplegic and P developed a severe psychiatric
condition borne from the guilt of letting her friend drive
• P sued the friend and claimed psychiatric illness, as a result of the accident
• The defendant argued that psychiatric illness was foreseeable, but psychiatric
illness borne from guilt was not foreseeable, as it did not arise from her being a
passenger in the car.
• The court agreed, the plaintiff’s injuries were not foreseeable
Kavanagh v Akhtar (1999) 45 NSWLR 588

• This illustrates the expansive view the courts have taken for causation in the
20th/21st century, taking into account cultural values
• The plaintiff was inured in the defendant’s store, when a box of perfume fell on
her shoulder, thus injuring it. As a result, the plaintiff had restricted movement
in her left arm, found it difficult to maintain her long hair, cut the hair off
without consulting her husband, the unimpressed husband left her. The plaintiff
then develops a depressive illness due to the husband leaving her and sues.
• D argued that it was not foreseeable that the shoulder injury would lead to a
depressive illness, as the marriage breakdown was cause of the depressive
illness
• Court disagreed, it held that it was foreseeable that the injury may place strain
on the marriage, husband’s reaction was not foreseeable, but that was not
important
• She received damages
• So took into consideration Culture and Circumstances
5D General principles
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(4) For the purpose of determining the scope of liability, the court is to consider
(amongst other relevant things) whether or not and why responsibility for the harm
should be imposed on the negligent party.
This section directs the court to refer to policy issues and fairness and justice when
considering causation. Overall, the view adopted by the courts towards causation, is
that the extent of harm need not be foreseeable, as long as the general kind of harm is
reasonable foreseeable, it is sufficient. Refer to Wagonmound 2 above.
The Egg-Shell Skull Rule

This rule operates as an exception to the test that the type of damage which results to
the
claimants must be reasonably foreseeable result of the defendant’s negligence. When a
claimant has a condition which makes them more susceptible to injury than the ordinary
person, the defendant will be held liable for the full extent of the injuries incurred.
Dulieu v White (1901) 2 KB 669

• The plaintiff may suffer from some pre-existing weakness or defendants
negligent act may cause injury resulting in some susceptibility to further illness
or injury
• The judge said that if a plaintiff is negligently injured, it is not a defence that the
damage was exasperated by a “weak” plaintiff
Pre-Existing Weakness
Smith v Leach Brain & Co (1962) 2 QB 405
• The plaintiff suffered a burned lip at work
• At the time of the burn, the lip tissue was pre-malignant
• The burn to the lip triggered a cancer that ultimately killed the plaintiff
• Question was whether defendant could reasonably foresee the type of injury
rather than the consequences that flow from that injury.
• The court held that the death was not too remote, because the initial injury
was foreseeable, thus the defendant was liable for the extreme consequences
• The plaintiff’s widow was paid damages, minus the vicissitudes of life
• When courts are assessing damages, one of the heads of damage is the loss of
enjoyment of life, assessed on the basis of the plaintiff having a “perfect” life.
15% is taken off this total as the vicissitudes of life
• In this case, the damage was lowered, as the plaintiff would have died anyway,
the burn just sped up the process
Robinson v Post Office (1974) 2 All ER 737
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• P was an employee of the D who fell off a ladder at work and received a serious
gash in his leg, was taken to hospital, where he was given a tetanus injection
• The plaintiff was not given a test injection, he suffered a huge allergic reaction
from the injection and got serious brain damage
• The court held that the defendant was liable for this subsequent damage, on the
basis that the original injury was foreseeable, the following injuries were just
extensions of the initial injury
Nader v Urban Transport authority of NSW (1985)

• Boy alighted from a bus while it was stopping as a result he suffered superficial
head injuries and developed a rare psychiatric disorder called Ganser syndrome.
• The syndrome developed partly due to parents overprotectiveness and their
failure to obtain appropriate treatment.
• Held syndrome was damage of a kind which a reasonable man reasonably should
have foreseen, so court found for boy.
Subsequent Susceptibility
Stephens v Waite Tileman – not sure on name or year as couldn’t find in books
• Plaintiff suffered irreversible brain damage as a result of a cut hand suffered
because of the defendant, court said a new risk created by the injury must be
part of the eggshell skull principle.
Pyne v Wilkenfield (1981) 2 SASR 441

• The plaintiff suffered whiplash from a motor accident caused by D, and as a
result, had to wear a neck brace. Due to the limited view that the neck brace
entailed, the plaintiff tripped on a gutter and was injured
• The courts held, as the initial injury was foreseeable, the defendant was liable for
the subsequent injury
Commonwealth v McLean (1997) 41 NSWLR 389
• The plaintiff was a sailor aboard the HMAS Voyager, when it was sunk in a
training accident, as it was rammed by the aircraft carrier HMAS Melbourne
• P suffered severe psychological illness from this accident and took up smoking
and drinking, as a result, developed lung cancer and sued the Cth for damages
• The issue at hand was whether the plaintiff’s injury was foreseeable
• The psychological damage was foreseeable, smoking and lung cancer not.
• The court held that the development of cancer was too remote; the egg shell
rule was not applicable. The defendant is only liable for the foreseeable extent,
not damage of a different kind.
• Further damage is too remote if not the same kind as original foreseeable
damage.
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Defences to Torts involving Negligence

Contributory Negligence
At common law a complete defence now S5R
Butterfield v. Forrester (1809)

• D put pole in road and P rode into it injuring himself and sued. Accident occurred
at twilight, P was travelling at great speed and was very drunk.
• Held as P failed completely to take reasonable care his action failed completely.
• Back then if injury caused by both parties “Last Opportunity” rule applied so if P
had last opportunity to avoid accident P was completely liable.
Davies v. Mann (1842)

• P left donkey in road and D ran it over so P sued.
• Held P successful as D had last opportunity to avoid. Shows harsh effect of all or
nothing rule.
S. 9 Law Reform (misc prov.s) ACT, 1965 (NSW)

• “where a person suffers damage…partly of his own fault and partly the fault of
any other
• person…a claim…shall not be defeated…but the damages recoverable…shall be
reduced to such extent as the court thinks just and equitable having regard to
the claimants share in the responsibility for the damage”
• “damage” is defined to include loss of life & personal injury
• “fault” is defined as negligence or other act or omission which gives rise to a
liability in tort”
• The apportionment of damage. The plaintiff’s share in the responsibility of
damage is expressed as a percentage., for example in March v Stramare
Division 8 - Contributory negligence

5R Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been
negligent also apply in determining whether the person who suffered harm has
been contributorily negligent in failing to take precautions against the risk of that
harm.
(2) For that purpose:
(a) the standard of care required of the person who suffered harm is that
of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew
or ought to have known at the time.
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5S Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory
negligence, a court may determine a reduction of 100% if the court thinks it just
and equitable to do so, with the result that the claim for damages is defeated.
5T Contributory negligence--claims under the Compensation to Relatives Act 1897

(1) In a claim for damages brought under the Compensation to Relatives Act 1897
, the court is entitled to have regard to the contributory negligence of the
deceased
(2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not
apply so as to prevent the reduction of damages by the contributory negligence
of a deceased person in respect of a claim for damages brought under the
Compensation to Relatives Act 1897 .
Expressed in Percentage Terms

Pennington v. Norris HCA (1956)
• Must be a “just & equitable” apportionment of responsibility between P & D.
• This involves comparison of culpability meaning the “degree of departure from
the standard of care of the reasonable man”
• The act gives a wide discretion to the Judge or jury.
• This decision gives a little guidance on how to go about the process. There is no
rule as to what kind of percentage should be looked at by the court.
Negligence Which Contributes

Froom v. Butcher (1975)
• Car accident Froom was the passenger, but he was also not wearing a seatbelt
though he sued Butcher for driving negligently & causing him injury.
• Negligence depends on breach of duty – contributory negligence does not
• P guilty of contributory neg. if he ought reasonably to have foreseen that, if he
did not act as a reasonably prudent man, he might be hurt himself.
• Reduction of damages for failure to wear a seatbelt.
• NB – 25% finding in CN is already a large finding of contributory negligence.
However, in every case, it must be determined what is just & equitable
• Denning LJ – The evidence will show that if contributory negligence makes no

difference to the damage, then it should make not difference to the finding of
damages. It would be therefore, if for example in wearing the seatbelt damage
was avoided altogether, then there would be no contributory negligent. He
suggested a general rule.
3 ways to hold contributory negligence Denning LJ :
1. plaintiffs act caused damage
2. plaintiffs act increased extent of damage
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3. plaintiff puts them in a place to increase chances of harm
This would now be covered by motor vehicles act
Injury within the Risk

D will have to show that the damage was causally linked to some of Ps damage.
A causation issue D has to prove that P’s loss was caused in part by P’s neg.
It must be foreseeable:
Jones v. Livox Quarries

• P rides on a truck towbar. D negligently ran into back of that truck. P injured. P
argued contributory negligence. It was found that it was foreseeable that P
might be damaged the way he was. However, in order for there to be a finding of
contributory negligence, there is a requirement of reasonably forseable harm to
oneself.
• P guilty of contrib. Neg because He should have foreseen that standing on the
back of truck would lead to injury “by ordinary common sense”. P was injured
when back of truck was run into.
Gent-Diver v. Neville
• P noticed defective lights on bike. D driving on wrong side of road and ran into
him. Court found that it was not due to defective lights. No contributory Neg
because although P knew lights defective, accident not caused by defective lights
but by D on wrong side of road
Standard of care
Same as that of D owed to P.
Davies v. Swan Motor Co (1949)

• For contrib.. neg is not requirement that P owe a Duty of care to anyone, only
that he failed take reasonable care for his own safety.
Test is reasonableness & calculus of neg is applicable

Caterson v. Comm. for railways
• P went to a railway station in the country to see off a friend.
• Ps son was there on the platform, and train began to move. The son was left
behind with 80 miles to the next station, and the son was 40 miles from home.
So P jumped & was injured. The train was just pulling away from the station and
had not got up to speed yet. He sued the railway claiming they had been
negligent in failing to warn him that the train was about to leave. Railway also
argued that P was contributorily negligent.
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• HC simply applied the calculus of negligence to ascertain whether P was
negligent. HC said it was not unreasonably. “weighing up the inconvenience with
all other factors”.
• Ps conduct in these cases will be judged in light of situation of risk created
ultimately by D. D has been negligent, but courts have determined that Ps
conduct must be judged in light of the negligent situation created.
Chomentowski v red garter resturaunt ltd (1970)

• Employee taking employers money to bank, was robbed and argued employer
should have sent another employee with him.
• NSWCA held for the plaintiff. Risk was small but real.
McLean v. Tedman(1984)
• P a garbage man who had to run across the street to take bins to be
• emptied into the truck. He was run over by a car while doing so. D argued that P
should have been looking out. The HC said no contributory negligence because
the system of work in itself was dangerous, & Ps conduct must be judged in
these circumstances – he couldn’t have done anything different and D acted
reasonably in circumstances.
• Risk taken by P is considered in light of SITUATION OF RISK CREATED BY D.
• Mason, Wilson, Dawson Deane JJ said “it is accepted that in considering whether
there was contributory negligence by an employee in which there is failure by
the employer to create a safe system of work, the circumstances in which he had
to do his work, this environment must be taken into account.”
Civil Liability Act s5R – The standard of Care

S5S – Common law never did this
S5T law was previously if deceased is guilty of con. Neg, then it is not taken into account.
Volenti Non Fit Injuria
Literally “there can be no injury to the willing”
• Voluntary assumption of risk of injury by P
• P aware of risk in a subjective manner
• P accepts burden of risk in a voluntary way
This is a complete defence to a claim
Note: not available in motor car accident claims or work related injury claims in NSW.
Motor Accidents Act 1988 (NSW) S. 76
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W. Comp. Act, 1987 (NSW) S. 151o
D. will have to prove:
• P KNEW the facts constituting the danger(express knowledge)
• P. FULLY APPRECIATED the danger inherent in those facts
• P. FULLY ACCEPTED THE RISK of injury
Smith v Baker and sons (1891)

• Dramatically reduced the scope of defence.
• Defendents were building a new railway and employd the plaintiff who worked
underneath a crane moving rocks. Due to the crane operators negligence rocks
fell on the plaintiff. Plaintiff admitted that he was aware of the possibility of the
rocks falling however the house of lords held mere fact that he contined in
employment knowing of danger did not stop him from recovering, he must have
consented to actual harm which he did not so he was able to recover and volenti
d couldn’t be used.
• Majority held d must show 2 things:
o Plaintiff was aware of risk of negligence
o Consented to that particular risk.
Scanlon v. American CigaretteCo. (no.3)(1987)

P a smoker since 15 years old was dying of lung cancer. When she had started,
there was no awareness of the link between smoking and lung cancer. P said D
was negligent in failing to warn her when she was young.
This was an interlocutory proceeding which means that it was to strike out one
of the claims. Whether D had validly pleaded a contrib.. neg. defence of violenti
Not a proper pleaded defence of Violenti because the claim by D that “P knew or
ought to have known of the risk of injury” This is not sufficient.
It must be established that it was actual, not constructive knowledge.
Wheeler v New Merton Board Mills (1933)

Defence of voluntary assumption of risk is generally not available for a breach of
statutory duty.
Imperial Chemical Industries v Shatwell (1965)
Defence of voluntary assumption of risk, may be available for a breach of
staturory duty where defendant is not personally liable but liable for an
employees breach of statutory duty.
Elements required to prove volenti defecne
o Plaintiff must perceive danger
o P must fully appreciate danger
o P must voluntarily accept risk of injury
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Sporting injuries
Rootes v. Shelton(1967)
P a waterskier who was performing a dangerous manoeuvre involving 2 skiers
crossing over each other. The driver of the boat went too close to other boats.
P collided with one of the moored boats and was seriously injured. Sued the
negligent driver. D argued that by carrying out the dangerous manoeuvre and
dangers sport P accepts risk.
HC said “risks of dangerous sport”, but to say that P undertook the risk that D
would carelessly drive the boat, or fail to warn him of danger. He does not
accept that D will not take due care in driving the boat. P may accept inherent
risks in a sport but not non-inherent risks or the risk of negligence.
Exactly what risk does P accept?

Kent v. Scattini
A 16 year old girl sitting on steps in a small country town with group of friends.
Another group of youths, who are known to P and her friends came by and
sprayed them with water. P and her group went after them in cars with similar
pumps. Travelling at about 80kmh, there was a car crash after car lost control &
sued driver. P is barred from recovery only from loss which is caused by the
known and accepted risk. D contended in taking part in ‘the fun’ but did not
consent to dangerous driving. There was no reason to foresee dangerous driving.
Swaine v Waverly Council (2005)

Perhaps would be decided differently today in light of cla
Civil Liability Act

Effect is to provide a new kind of defence, much easier for D to prove.
S5R – Contributory negligence
S5F – “Obvioius & Inherent risks” Obvious Risk – Common Knowledge does not
necessarily have to be clearly visible. Onus on Plaintiff to show that they did not know of
risk. No Duty to advise. Inherent risk- reasonable person’s point of view
5K- recreational activities
S5G – A rebuttable presumption of awareness
S5H – no duty to warn of obvious risks eg Nagle v Rottnest Therefore he would not have
succeeded under this act. However, still a duty to warn of a risk that is not obvious
S5I- There is not liability in negligence for harm suffered by another on materialisation
of an inherent risk. This is a risk that cannot be avoided by taking due care.
Illegality
Gala v. Preston (1991)
Mason, Deane, Gaudron & McHugh JJ “Not a prior reason why illegality…should
automatically negate the existence of a Duty”
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in cases of joint illegal enterprise if it is not feasible to determine the appropriate
standard of care, then no duty arises.
Illegal a priori – from the outset
Henwood v. Municipal Tramways Trust (1938)
Ps son was ill in a tram, he leant out the window to throw up. The pillars were
close to tram and was injured. There was regulation not to lean out of the tram.
However, the court said that the mere fact P acting illegally did not of itself
constitute a defence for D. Look at the purpose of the law which made it illegal.
Dixon & McTiernan JJ: is part of the purpose of the law which P has offended to
disentitle P?
Jackson v. Harrison (1978)

P was a passenger in a motor car driven by D. D was a disqualified driver, but P
knew. This did not stop P from suing D.
Jacobs J: A legal duty…presupposes that a tribunal of fact can properly establish
a standard of care…if the Courts decline to permit the establishment of an
appropriate standard of care then it cannot be said there is a duty of care.
The illegality therefore had no bearing. The driving can still be negligent
notwithstanding licensed or unlicensed.
Civil Liability Act – Part 7 – Deals with recovery by criminals.

S54. Provides that no damages are to be awarded where it was sustained during a
serious criminal offence. Determined on the balance of probabilities.
Particular Duty Areas

Special because they have peculiar characteristics
Liability for Defective Products: The Scope

Product liability as a regime for protecting consumer rights:
Defective structures/premises (as products?)
Consumer goods as products
Product Liability: Evolution in Common Law

• Originally in Common Law, a consumer in receipt of defective goods (including
goods that caused injury to the consumer because of defects) was protected by
the warranties implied in the contract of sale.
• The implied warranties was later incorporated into statutes:
o Sale of goods Act 1983 (UK)
o Sale of Gods At 1923 (NSW)
The Difficulties with Implied Warranties
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Warranties do not ‘run’ with goods. It is simply an element of the contract and does not
therefore attach to the goods as such. There is generally no ‘vertical privity’ between
the manufacturer and the ultimate consumer let alone between wholesalers and the
ultimate consumers. Privity of contract ‘remained a recalcitrant obstacle to the
extension o warranties between the manufacturer and the ultimate consumer ‘
(Fleming)
The Emergence of Negligence Law: Donoghue v Stevenson
The existence of the duty of care between the manufacturer and ultimate consumer
‘a manufacturer of products … owes a duty to the consumer to take reasonable care’
The Sources of Law on Product Liability

Common Law:
• contract
• tort
Statute Law
• Trade Practices Act 1974 (Cth)
• State fair trading legislation, State Sale of Goods legislation
• Strict liability regime.
Common Law: Negligence

Donoghue v Stevenson and the Common Law duty of manufacturers
The scope of the duty:

Junior Books v Veitchi
the duty extends beyond merely causing harm to safety or property
in this case there was construction work. A subcontractor was negligent in doing
the floor of a factory and P had to spend more money to fix. “there was a
relationship of proximity”. It was also an established area of duty within the
confines of a manufacturer
Intermediate examination: Grant v. Aust. Knitting Mills
The range of defendants: Haseldine v. Daw
The Act of the Defendant

Negligent design of product
O’Dwyer v. Leo Buring [1966] WAR 67

Negligence in the manufacturing process:
Grant v. Australian Knitting Mills

Negligent Marketing of a Product
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Adelaide Chemical & Fertilizer Co V. Carlyle

Failure to warn of dangers or proper use
Norton Aust. Pty Ltd V. Steets Ice Cream Pty Ltd
Statute
Sale of Goods Act (1923) NSW implies into contracts for sale of goods certain
warranties:
fitness for purpose
merchantable quality
cannot be excluded
Trade Practices Act (Comm) Pt V Div 2A

S74B: Allows a consumer or person acquiring title through or under consumer an action
against manufacturer in respect of goods unsuitable for purpose of sale.
S.74C : Action in respect of false description
S.74D: goods of unmerchantable quality
S.74E: goods not corresponding with sample
S.74K : No exclusion or modification of T.P.A
The TPA: The manufacturer
Manufacturer: defined widely (S74A (3) & (4)) to include a corporation

allows its name or brand on goods
holds itself out as manufacture
is importer & manufacture has no Aust place of business
The TPA: The Consumer: person acquiring goods where;

Prices does not exceed the prescribed amount ($40,000) OR
Price was greater but goods were of a kind ordinarily acquired for personal
domestic or household use.
The TPA: Remedies

• S75AE: Remedy for other persons who suffer consequential losses.
• S75AF: Remedy for damage to personal, domestic or household goods:
• S75AG: Remedy for damage to land or buildings
Defences
• S75AK: Defences
• S75AN: Contrib. Neg
• S75AQ : 3 year time limit
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The TPA Part VA
Pt VA T.P.A was enacted in 1992 and deals with the liability of manufacturers and
importers of defective goods
• S.75A: Applies to goods “if their safety is not such as person generally are
entitled to expect”
• S.75AD: A corporation supplying is liable for damages to person injured or killed
Under the TPA the Plaintiff does not prove

• duty of care
• negligence
Best to sue under both TPA and tort where possible.
Abnormal Plaintiffs
In general where D is negligent, D takes P as he /she finds P. Any unusual condition that
aggravates the damage cannot be used by D as a defence
Phillip Morris Inc v. Adam Brown Male Fashion Pty Ltd. (1981) 148 CLR 457
To be liable, P must show that she/he was foreseeable. In general the abnormal
P is not foreseeable
There is a distinction to be drown between the abnormal Plaintiff and the
particularly sensitive Plaintiff
Haley v. London Electricity Bd.

A blind P held not to be abnormal: D “ought to anticipate the presence of such
person within the scope and hazard of their operations”
Particularly Sensitive Plaintiff
Where P suffers damage because of a particular sensitivity in circumstances
where D’s conduct is not considered a breach, P cannot claim
Levi. V Colgate Palmolive

“the bath salts supplied to P were innocuous to normal persons… the skin
irritation which she suffered…was attributable exclusively to hypersensitiveness”
The Unborn Child

In general, a duty of care may be owed to P before birth
Watt v. Rama:
“the possibility of injury on birth to the child was… reasonably foreseeable…On
the birth the relationship crystallised and out of it arose a duty on the D…”
X v. Pal(1991)
Duty to a child not conceived at the time of the negligent act
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Lynch v. Lynch(1991)
Mother liable in neg to her own foetus injured as result of mother’s neg driving.
Wrongful Birth Claims Claims by parents in respect of the birth of a child who
would not have been born but for the D’s negligence.
Vievers v Connolly (1995) 2 Qd R 325

(Mother of disabled child born bec. Pl lost opportunity to lawfully terminate
pregnancy. Damages included costs for past & future care of child for 30 years.)
CES v Superclinics (1995-6) 38 NSWLR 47

Mother lost opportunity to terminate pregnancy as a result of D’s neg failure to
diagnose pregnancy. NSW Ct of Appeal held claim maintainable but damages
not to include costs of raising the chills as adoption was an option.
Cattanach v Melchiorv [2003]HCA

Mother of healthy child after failed sterilization procedure. Qld CT Appeal held
damages should include reasonable costs of raising the child. High Court agreed
on appeal
This position is changed by the CLA
Wrongful Life Claims

Claim by child born as a result of negligent treatment by De of child’s parent.
Bannerman v Mills (1991) ATR 81-079.

Summary dismissal of claim by child born with disabilities as result of mother
having rubella whilst pregnant. Tort of wrongful life unknown to common law
Edwards v Blomeley; Harriton v Stevens; Waller v James (2002 ) NSW Supreme Court,
Studdert J.
• No duty of care to prevent birth
• Policy reasons -
1. Sanctity & value of human life
2. impact of such claim on self-esteem of disabled persons
3. exposure to liability of mother who continued with pregnancy
4. Plaintiffs’ damage not recognizable at law - would involve comparison of
value of disabled life with value of non-existence
5. Impossibility of assessment of damages in money terms - taking non-
existence as a point of comparison.
Defective Premises
In general the occupier of premises owes a duty of care to persons who come on to the
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Premises. While the notion of occupier's liability may have developed initially as a
separate category of tort law, it now considered under the general principles of
negligence.
Zaluzna v Australian Safeway Stores

Occupiers’ Liability – If a person is a lawful entrant onto land occupied by a
defendant, this is sufficient to establish a duty of care, as the defendant should
reasonably foresee a real risk of personal injury to the visitor or the class of
persons of which the visitor is a member
What are Premises?

-Land and fixtures
but Courts have used wide interpretations including moveable structures eg:
scaffolding (London Graving Dock v. Horton [1951] AC 737)
Ships and gangways eg. (Swinton v. China Mutual Steam Navigation Co Ltd (1951))
Occupiers’ Liability
Who is an occupier – control
Wheat v. Lacon [1966] AC 522
Modbury Triangle Shopping Centres v Anzil (2000)
Shopping centre did not leave lights on.
Employee goes to car after work and is robbed. Court said that the occupier will
not have a duty to take reasonable care to prevent harm to somebody lawfully
upon the land, from the criminal behaviour of a third party who comes onto
land.
Negligent Acts Causing Pure Economic Loss

This deals with monetary damage. There is no property or personal injury involved
otherwise. Policy Reasons for previous Denial of Recovery include Indeterminate
liability, D’s culpability and extent of liability, Concurrent duties in tort & contract, Need
for certainty in law, the effect on insurance.
The old “no recovery” rule illustrated in

Cattle v Stockton Waterworks (1875)
Df flooded neighbour’s property drowning his mine curt recognised that
damages must be awarded to the neighbour who’s mine had been damaged and
workmen who’s tools were destroyed but court did not extend the df liability to
cover the worker’s lost wages
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Ultramares v Touche (1931)
• Concern re scope of liability and floodgates in allowing “liability in an
indeterminate amount for an indeterminate time to an indeterminate
class”
Weller & Co. v. Foot and Mouth Disease Research Institute (

P were livestock auctioneers.
D allowed disease to escape & nearby cattle had to be destroyed. P therefore
suffered loss.
There is no duty to avoid purely economic loss, the court said.
Australian Courts on the other hand, have allowed it narrowly.
Caltex Oil (Aust) Pty Ltd v. The Dredge “Willemstad”(1976)

A dredge caused damage to an oil pipeline. Caltex did not own the pipline, the
refinery did. However, they suffered financial loss because instead of using the
pipeline, they now had to transport the oil by truck.
As a general rule damages not recoverable for economic loss NOT consequential
upon injury to person or property.
Foreseeability of loss alone not sufficient to make it recoverable.
There are exceptional cases where D has knowledge or means of knowledge that
P individually (not merely as a member of an unascertained class) will be likely to
suffer economic loss and in such cases D will owe a D of C.
Ct would not formulate a principle that would cover all cases in which a duty is
owed… “All the facts of a particular case must be considered”. (Gibbs J)
Policy considerations relevant (Stephen J)
Aust. Cases After Caltex – All the facts must be considered.
Ball v. Consolidated Rutile (sup Ct. QLD) 1991

P failed
insufficient proximity: D did not know of Ps individually or as members of an
ascertained class.
Christopher v MV “Fiji Gas” (QLD Ct Appeal) 1993

Ps failed
Ct applied Caltex distinction bet “ascertained” & “unascertained” class
distinction “not very satisfactory” but no alternative test
difficulty at the margins in differentiating bet. identified persons &
unascertained class
Ps unascertained class
Hawkins v. Clayton(1986)
P executor & beneficiary of a will, but was not a client of D – Clayton Utz.
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Deceased had been a client. When she died, D did nothing, and therefore, value
of house in the will decreased in value. P relied on D to do the right thing. P was
successful & Caltex was not considered.
Proximity is the relevant test in cases of pure economic loss the relationship of
proximity will be characterised by some additional element which will commonly
(but not necessarily) consist of known reliance…or the assumption of
responsibility…the factors determinative of the existence of a relationship of
proximity vary in different categories of case.
Bryan v. Maloney (1995)

P had purchased a house. 3rd owner of the house. It became evident that the
foundations were not good. Building defect in a house. It was worth considerably
less than what was paid. Sued the builder saying that a duty of care was owed.
HC agreed that a duty was showed, even though it was a purely economic loss.
Court said that this was due to a situation of known reliance.
The notion of proximity is of vital importance
Policy considerations relevant
Cases of mere economic loss are special: they commonly involve “an identified
element of known reliance…or the assumption of responsibility or a combination
of the two”
Perre v. Apand HCA 12.8.99

Potato farmers case. D supplied infected potato seed to a farm nearby to P. D
negligently supplied without testing. P was never infected with disease, but
always sold ito WA, where there was law that if a farm was within 25km of
another farm which had the disease, then the potatos could not be sold.
All Justices (in sep. judgments
Refer to & approve Caltex – is not general rule that there is a D of C not to cause
R.F financial harm BUT are circ.s where recovery for PURELY ECON. LOSS is
permitted.
Major policy considerations in this type of case are the need to avoid
indeterminate liability and to avoid making ordinary commercial activity tortious
Pl’s were members of an “ascertained class”. D knew or had the means to know
who were the members of the class at the time of the negligent act. Just because
the class is large does not mean it is “indeterminate”
“Vulnerability” of Pl is an important factor.
(Gleeson, CJ, McHugh, Gummow, Kirby & Callinan, JJ)

Gleeson, CJ
• Favours incremental development of the law
• The Caparo test relies on concepts which are imprecise
• Vulnerability of Pl, physical propinquity, control exercised by D are
relevant factors. D had knowledge of an “ascertainable class of
vulnerable persons”
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Gaudron J
• categories of case – protection of legal rights – a discrete category of liability for
pure econ loss.
McHugh J
• “Caparo test” relies on concepts which are indeterminate, imprecise
• No Duty merely bec D impairs “a precise legal right”
• Incremental approach is the most satisfactory
• Reliance & assumption of responsibility are indicators of Ps “vulnerability”
• The degree & nature of “vulnerability” sufficient to found a duty that will vary
from category to category & from case to case
• 5 principles developed by McHugh
1. Reasonable foreseeability
2. Risk of indeterminate liability
3. Undue burden
4. Pf vulnerability
5. D knowledge
Gummow, J
• Does not favour the “imposition of a fixed system of categories”
• Prefers the approach of Stephen, J in Caltex-“salient features” which combine to
constitute a sufficiently close relationship to give rise to a duty
• Salient features of this case:
o D knew of risk to Pl
o D had control of risk
o Ps had no power to protect themselves
Kirby J
• Still favours Caparo test
• Finds D of C on 3-stage test
• Reasonable foreseeability
• Proximity – vulnerability, geographical closeness
• Policy
Hayne J
• Favours incremental development
• Factors important to recognising Duty in econ. Loss cases: indeterminate liability,
allow ordinary commercial dealings – D’s act of importing seed to SA was illegal if
done deliberately.
Callinan, J
• Favours incremental development
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• Factors which in combination establish proximity:
o D was in control
o P members of determinate class
o geographical propinquity
o commercial propinquity
o P powerless to abate or prevent loss
o no impediment to ordinary commercial activity
Executor Trustee Aust Ltd v. Peat Marwick Hungerfords

• St.t of claim raised an arguable case in negligence based on assumption of
responsibility…(therefore not necessary for P to please and prove D’s intent to
induce P to rely on reports)
Criticism of Caltex
Mitsui Osk Lines v. The ship ‘Mineral Transporter’
• NSW Sup. Ct found for P on Caltex principles
• P.C. allowed D’s appeal.
• P.C “bound to reach their own decision without the assistance of any single ratio
decidendi to be found in Caltex”
• P.C imposed old rule that no recovery for economic loss
Leigh & Sullivan v. Aliakmon Shipping old rule applied by H. of L.

• Economic Loss Connected to Injury to Person or Property
• (not pure economic loss)
• Recovery will depend only on questions of:
• causation &
• remoteness of damage
SCM v Whittall
• P recovered value of damaged goods and profit which would have been made on
sale of damaged goods
• BUT D not liable for other profits lost by P solely by reason of disruption to
production ass later damage is not caused by injury to property
Spartan Steel & Alloys v. Martin

• P failed to recover lost profits not consequent upon damage to P’s property.
Pure Economic Loss

Johnson Tiles v ESSO[2003] VSC 27 (20.2.03)
Explosion at a gas plant. Gas consumers gas supply cut off for some time.
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Gillard J.
*3 step methodology to ascertain D o C
o Reasonable Foreseeablity- gas customers were a “class of persons” who
were R.F. by D.
o Proximity - (in Lord Atkin’s sense) - “persons so closely & directly
affected…” etc. There was a “proximate” relationship bet. ESSO & gas
customers
o Identification & Consideration of competing SALIENT FEATURES for &
against a duty of care. Salient features included:
Indeterminancy - Here class was determined tho’ large. Gas
customers members of
identifiable class but stood down workers indeterminate class. Act
of D not a mere
trifling or careless act but serious negligence
‘Floodgates’ (not relevant here)
Law must allow legitimate business activity (not relevant here)
Control & assumption of responsibility by D - ESSO controlled gas
supply
Reliance
Vulnerability - customers were aware of risk of interruption to
supply & cld insure or
assumption of responsibility take other “back up” steps
Contractual matrix
Pure economic loss: Johnson v ESSO

NO D o C to avoid purely economic loss for foll. Reasons:
Gas customers aware is no guarantee of uninterrupted supply
Customers in a better position than D to assess their likely loss due to
interruption & take action to avoid it
Contractual matrix - supply chain governed by contractual relationships
Statutory regulation of gas industry. Liability for stoppage of supply is a matter
for parliament
Negligent Misstatement Causing Pure Economic Loss

Derry v Peek 1889
P could recover only if D. fraudulent
Candler v Crane Christmas 1951

Ld Denning dissenting:
Accountant owed a duty of care to a 3rd party to whom he or his employer
might show accounts
Duty extended to persons who used accounts for any transaction for which
accountant knew they were prepared.
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Hedley Byrne and Co Ltd v Heller and Partners (1964)

Before this case, there was no recovery allowed for pure economic
loss because of a negligent misstatement. This case relied on obiter. Work was
done on credit and on strength of credit reference written by the bank (D)
money was lent. Company went into liquidation & P sued the bank for its
negligent credit reference.
Maj of HoL preferred Ld. Denning’s approach. Held in some cases they may be
held liable here the company was not liable as they had given an exclusionary
clause
Obiter:
“If in a sphere in which a person is placed …others could reasonably rely upon his
judgment or skill…a person takes it upon himself to give information or advice
…or allows his information or advice to be passed on to another person…who…he
knows or should know will place reliance upon it then a duty of care will arise.”
Several factors identified as relevant
- Reliance
- Reasonable reliance
- Df aware of reliance
Special Skill
MLC v Evatt (1968)
• Advice on shares in a company owned by MLC. Evatt sued MLC for negligence
because they advised it was a good investment. MLC was not in a business of
special skill investment & Evatt knew.
• Barwick CJ: D. liable notwithstanding no special skill. Willingness to proffer the
info. Or advice is sufficient for a duty. He gave the following factors to be
considered in determining reasonable reliance
o person giving advice doesn’t need to be in the business of giving such
advice
o Setting cannot be social/occasion of interchange
o Nature of subject matter
o Capacity
• Privy ccl: No duty as no special skill held that a special skill must be present– BUT
Privy Council not followed in Aust. Barwick CJ view preferred.
Shaddock v Parramatta Council (1981)

• P was a property developer and intended to buy some land, seeing whether
property was going to be subject to any road widening proposal. Did this in
writing as well. P went ahead & purchased, following the advice. The road
became subject to road widening and P sued.
• special skill not a requirement in itself but a factor going to the question of
reasonable reliance by P. on D’s information or advice.
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• Gibbs CJ requirements to establish duty
1. KNOWS or ought to know that the other RELIES
2. MAY ACT IN RELIANCE on the advice or information
3. UNLESS it would be REASONABLE for that other person to so rely and act
• NO NEED FOR SPECIAL SKILL- overruled Privy Council in MLC
• HC said that if the source of information was only over the first telephone then
there may not be a duty signalling that a formal written advice is required.
(formality of communication is important)
San Sebastian Pty Ltd v Minister Administering the Environmental Planning &
Assessment Act(1986)
• similar in facts. Proposal to develop based on information relied upon by P. D
had no idea that P had information or that he would rely on it.
• No request for info is necessary that D intends that P (or a class of persons of
whom P is one)SHOULD ACT on the statement AND D must make the statement
with the INTENTION OF INDUCING P in reliance on the statement to act or
refrain from acting in a particular way. In circumstances where D WOULD
REALISE THAT ECONOMIC LOSS would be suffered if the statement were
incorrect
• Existence of a request may be evidence of reliance but is not essential.
Essanda Finance Corp. Ltd v. Peat Marwick Hungerfords (1997)

• Auditors & accountants. P was a finance company who lent money to a company
which was audited by D. Lent money on strength of audit & accounts. Argued
that flat accounts were wrongly prepared. This case did not get past the duty of
care.
• Brennan CJ: P must prove
1. D knew or ought reasonably to have known that info or advice would be
communicated to P
2. that info or advice would be communicated for a purpose which would
be “very likely to lead P to enter into a transaction”
3. it would be “very likely that P would enter into such a transaction in
reliance on the info” & thereby risk economic loss
Tepko v Water Board HCA 5 April 2001

• P relied on information from waterboard. But waterboard had no idea that this
information would be relied upon.
o Gleeson CJ, Gummow & Hayne JJ (in joint Judgment), & Gaudron J.
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o No duty of care
o Referring to Barwick CJ in Evatt & San Sebastian v The Minister “Speaker
must/ ought to realise that recipient intends to rely on info”.
o significant matters for existence of duty of care include:
Foresight of likelihood of harm
Knowledge/ means of knowledge of ascertainable class of
vulnerable persons
D did not know what info was to be used for by P.
relationship with D.
Caparo v Dickman
Ds were auditors
If D. has no specific knowledge of the transaction in respect of which P relies on
the info. Or advice then no duty of care
What was the PURPOSE for which the information was prepared?
Statutory Authorities & Defective Structures

Anns v London Merton Borough Council (1978)
• House of lords distinguished between policy and operational decisions stating
liability should attach to operational only
• problem with foundations of house, authority held responsible for failing to
inspect property
Timbs v Shoalhaven City Council [2004] NSWCA 81 (1 April 2004)

• Deceased killed by falling tree, Council had, refused consent for removal of tree
and further said that the tree was safe. In reliance upon that the deceased took
no steps to cut the tree down
• Applying the same rules of civil liability to the actions of public authorities or
corporation
• Council liable as it should have had expert knowledge
The Rule of Law and Public Authorities

Sutherland Shire Council v Heyman (1985)
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HCA declined to follow Anns, majority held that a statutory authority is under no
general common law duty to exercise its statutory powers, however duty could
arise in cases of specific reliance where the authority acts in a way to lead the pf
to believe that it will exercise its power for his or her protection and the pf acts
to his or her detriment in reliance
Mason J “There is, accordingly, no reason why a public authority should not be
subject to a common law duty of care in appropriate circumstances in relation to
performing, or failing to perform, its functions, except in so far as its policy-
making and, perhaps, its discretionary decisions are concerned”
However the majority held that general reliance does not exist
Mis Feasance – Bad doing

Non Feasance – Not doing
Generally Non feasance only gives rise to liability where a special relationship exists
Powers and Duties

Duty: The obligation to act
Power: The power holder has a freedom of choice to act
Ultra vires- beyond power

The Planning & Operational Dichotomy
Planning decisions
Are based on the exercise of policy options or discretions
In general, a public authority is under no duty of care in relation to decisions
which involve or are dictated by financial, economic, social or political factors or
constraints
Operational decisions
The implementation of policy decisions subject to the duty of care
L v Commonwealth
sexual abuse in prison, D held liable for operational failures
Parramatta CC v Lutz (1988)

• failure to order the demolition of building P’s property catches fire
• Conclusions on the Basic Concepts: Ann’s Case
• Intra Vires + Policy = Not actionable, Ct. will not interfere
• Ultra Vires + Policy = Actionable, Ct will assess whether Neg or not
• Not policy but Operational = Actionable, Ct will assess
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Australian Approaches to the Liability of Public Authorities:
Sutherland Shire Council v Heyman(1985):
Majority: Mason, Brennan & Deane JJ
In general no duty to exercise statutory powers
Duty will arise where authority by its conduct places itself in a position where
others rely on it to take care for their safety. duty arises where D ought to
foresee a) Pl. reasonably relies on D to perform function
b) P will suffer damage if D fails.
Mason J: concept of General Reliance
Parramatta City Council v. Lutz (1988)

Maj of NSW Court of Appeal: Kirby P & McHugh JA
D held liable P because P had “generally relied” on council to exercise its
statutory powers. “I think… that this Court should adopt as a general rule of the
common law the concept of general reliance
Pyrenees Shire Council v. Day (1998)

fish and chips shop with faulty chimney causes damage
Maj: Brennan, CJ, Gummow, Kirby, JJ
rejected concept of General Reliance (too vague, uncertain, relies on “general
expectations of community”)
(Only McHugh, Toohey, JJ approved and applied concept of General Reliance)
Brennan, CJ: No specific reliance by P here duty arises where “Authority is
empowered to control circumstances give rise to a risk and where a decision not
to exercise power to avoid a risk would be irrational in that it would be against
the purpose of the statute.
Majority: Rejected concept of general reliance
Crimmins v. Stevedoring Industry Finance Committee (1999) 167 ALR 1

Issue whether the stevedoring industry owed a duty to waterside workers to
warn of asbestos, association established by legislation to promote waterfront
reforms the association had the power to warn but was not the employer of the
workers - defendant owed P a duty of care
McHugh J, Gleeson CJ agreeing gave the following factors to consider:
1. was it RF that Ds act or omission include failure to exercise stat power
would cause injury? (today s42 of the CLA would be looked at)
2. Did D have power to protect a specific class including the P (rather than
Public at large)?
3. Was Pl vulnerable? (relates to duty- Perre v Apand)
4. Did D know of risk to specific class including P if D did not exercise
power?
5. Would duty impose liability for “core policy making” or “quasi-legislative”
functions?
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6. Are there Policy reasons to deny Duty (eg duty inconsistent with
Statutory scheme)?
Refer to ss42 & 43 in relation to questions
Great Lakes Shire Council v Ryan (2002)

• Oysters grown in lake and P got Hep A along with 400 other people
In a novel case involving a statutory authority the issue of duty should be
determined by following questions:
1. was it RF that act or omission would cause injury???
2. Did D have power to protect a specific class including P?(rather than
public at large)
3. Was P vulnerable?
4. Did D know (or ought D have known) of risk?
5. Would duty impose liability for “core policy making” or “quasi legislative”
functions? if so then NO duty
6. Are there Policy reasons to deny duty?
Voli v Inglewood Shire Council (1963) 110 CLR 74

• Voli was a professional architect Voli failed to provide strong enough bearers for
a stage ,thus the stage collapsed
• The High Court said that the architect must use the level of skill attributable to a
reasonable architect
Bryan v Moloney
• builders see above, non commercial so vulnreble
Woolcock street investments

• Engineers – large company not vulnerable as had the opportunity and means to
test themselves, unlike Bryan who was an individual- see above
Mis-feasance and None-Feasance: Highway Authorities

The traditional position in Common Law:
Highway authorities owe no duty to road users to repair or keep in repair highways
under their control and management.
Highway authorities owe no duty to road users to take positive steps to ensure that
highways are safe for normal use.
It is well settled that no civil liability is incurred by a road authority by reason of any
neglect on its part to construct, repair or maintain a road or other highway. Such a
liability may, of course, be imposed by statute. But to do so a legislative intention must
appear to impose an absolute, as distinguished from a discretionary, duty of repair and
to confer a correlative private right. (per Dixon J in Buckle v Bayswater Road Board):
See also Gorringe v. Transport Comm. (stautory authorities not liable for nonfeasance in
their role as highway authorities)
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Misfeasance and non-Feasance: Common Law Developments

Brodie v. Singleton Shire Council
Ghantos v. Hawkesbury City Council
The Civil Liability Act (NSW) and Public Authorities

Part 5 of the Civil Liability Act (Sections 40 to 46)
Section 42 sets out the principles to determine duty of care exists or has been breached
(ie. financial and other resources reasonably available, allocation of resources, broad
range of its activities, and compliance with the general procedures and applicable
standards)
Section 43: act or omission not a breach of duty, unless it so was unreasonable that no
authority having the functions in question could properly consider it as reasonable.- look
to other councils
Section 44: Removes the liability of public authorities for failure to exercise a regulatory
function if the authority could not have been compelled to exercise the function under
proceedings instituted by the Plaintiff.
Section 45: Restores the non-feasance protection for highway authorities taken away by
the High Court in Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury
City Council (2001) 206 CLR 512
Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City Council (2001)
206 CLR 512- in Brodie they found for the pf and in Ghantous they found for the df
council in Broadie the case was about a 22 ton truck going over a 50 year old bridge in
Ghantous pf fell on footpath because of uneven footpath
Broadie: where the govt provides a facility it is assumed that they are reliable
Lord Nicholls noted in Stovin v Wise (1996)
“…the recognized legal position is that the bystander does not owe the drowning child or the
heedless pedestrian a duty to take steps to save him. Something more is required than being
a bystander. There must be some additional reason why it is fair and reasonable that one
person should be regarded as his brother’s keeper and have legal obligations in that regard.”
Council can choose whether to exercise its powers but it must carry out its duties
LIABILITY FOR DEFECTIVE STRUCTURES
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Builders, developers, engineers, architects, (as non-occupiers) all owe a DUTY of CARE to
visitors or occupiers of negligently constructed buildings ( basic principles of negligence
apply)
Woolcock v CDG [2004]

• builder of defective commercial building does not owe a duty of care to a
subsequent owner of that building
• different to Bryan v Moloney as there was no element of vulnerability and the pf
could have properly inspected the property before purchase and had the
resources to do so
Bryan v. Maloney
• Defective Structures and the Liability of Public Authorities
Pyrenees Shire Council v Day

• Move away from general reliance
Nervous Shock- Duty to avoid psychiatric injury
Jaensch v Coffey
• “ sudden sensory perception: that is by seeing hearing or touching of a person,
thing or event which is so distressing that the perception of the phenomenon
affronts or insults the plaintiff’s mind and causes a recognisable psychiatric
illness” Brennan J.
• This was accepted as the general definition, the courts applied it fairly rigidly.
Mt Isa Mines v Pusey

• Windeyer J: “it is today a known medical fact that severe emotional distress can
be the starting point of a lasting disorder of mind”. Or other emotions that might
be suffered in given circumstances. By lasting he means ‘medical’. (5)
Swan v Williams
Samuels J: held an abnormal grief reaction not a psychiatric illness & so no claim in
nervous shock
Priestly & McHugh JJ held abnormal grief reaction was sufficient to ground a claim.
Andrewartha v Andrewartha SASC (6:20)

Depressive illness resulting from the prolonged stress of caring for a disabled wife not
nervous shock, because it was not caused by shock. There was no shock element.
Would be different today
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Development of the Duty of Care
Coultas v Victorian Railway Commission- near accident- old rule that recovery for
nervous shock only where P physically injured
Dulieu v. White and sons (1901): P’s nervous shock result of fear for own safety
• court allowed this because P apprehended harm
Hambrook v Stokes Brothers (1925): recovery for nervous shock caused by fear for
relative’s safety
Chester v Waverley Municipal Council (1939): P’s son drowned in an excavation in the
street left inadequately fenced P was present where his body was dragged out of trench
• court held that the mother’s reaction was not reasonably foreseeable
• criticised by Deane J in Jaensch v Coffey (1984) – different today
Dooley v. Cammell Laird; P was a crane driver, because of D’s negligence, there was a
falling load from the crane, and he feared for safety of fellow workers and got nervous
shock. Court awarded damages
Mt Isa Mines v. Pusey (1971)– P saw a badly electrocuted workmate who died despite
P’s rescue attempts
• HCA held that the P psychiatric damage was not too remote a consequence
• Mental disturbance of some kind was foreseeable the extent is irrelevant
Chadwick v. British Transport Commission (1967) Chadwick was a man who lived near
to a railway line, when there was a severe crash between two trains. Chadwick was one
of the first on the scene. He climbed into the wreckage of the train, and even though he
couldn’t do much, he offered comfort & solace to those in the wreckage. Sometime
later, he developed a psych disorder as a result.
• Courts allowed recovery even though he was not a ‘real’ rescuer
Jaensch v Coffey (1984)

P suffered psych damage as her husband injured and taken to hospital
• The aftermath of the accident “up to & including immediate post accident
treatment”.
• Deane J said she could recover for her injury if she was involved in the aftermath
of the accident
• No requirement that P actually witness the accident to claim nervous shock
____________________________________________________________________
Alcock v Chief Constable –

English case of over crowded stadium. More than 100 people were killed.
• Alcock was a group of P’s, including some who watched it on TV.
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• House of Lord made a distinction between primary & secondary victims.
(Australia has not taken these)
Lord Oliver of Aylmerton:
Primary victim: “involved either mediately or immediately as a participant”
Secondary victim: “no more than the passive and unwilling witness of injury caused to
others”
Damages not awaded to those who witnessed the accident on TV
White & Others v Chief Constable of South Yorkshire
H.L 3.12.98
• Police were not rescuers but gave assistance to the injured.
• Police were never in physical danger themselves (cf Chadwick v. British Railways
Bd. (1967) 1 QB 912)
Trinidad v Cane- Broadcasting authorities are exempt from being sued for psychiatric
harm caused by what they show
Tame v Morgan (2002)– P had a blood alcohol level of nil. Morgan was a police
constable and had accidentally switched blood alcohol reports. The error was rectified
and an apology given. P was very upset about it and suffered a psychiatric illness.
• HC also found for D that there was no duty of care. not foreseeable that a person
would react as Tame did due to the officer’s error.
• Only persons of normal fortitude are reasonably foreseeable.
Annetts v Australian Stations Pty Ltd (2000)- A WA case. Mr & Mrs Annetts were
parents of a 16yo boy who went to work on a very large cattle station in WA. Parents
were assured that he would be supervised and safe. He was then later stationed to work
in a remote place alone. He and another boy in the same situation went missing. Their
bodies were later found.
Parents suffered severe illnesses from seeing remains and gradual finding of evidence.
• HC, Sudden shock not a necessary pre-condition to recovery
• Annetts held that the direct perception of the event or aftermath is not always a
necessary pre-condition for recovery.
• Pre existing relationship (parents)
CIVIL LIABILITY AMENDMENT (PERSONAL RESPONSIBILITY ) Act 2002
Part 3 mental harm

S27 Pure mental harm is distinguished from consequential mental harm.
Consequential mental harm
Pure mental harm
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S.30 (1) Limitation on recovery for pure mental harm “arising …from mental or nervous
shock in connection with another person (the victim) being killed, injured or put in
peril…”
S30. Plaintiff is not entitled to recover damages for pure mental harm unless:
P witnessed, at the scene, the victim being killed, injured or put in peril or P is a close
member of the victim’s family (parent, person with parental responsibility, spouse ,
partner, child, stepchild, or other person for whom the victim has parental
responsibility, brother, sister, half-sibling, step-brother, step-sister…)
Damages to be reduced by same proportion as damages recoverable by victim for
contrib.. neg of victim (9)
No damages if victim prevented from recovery by any provision of this act or any other
written or unwritten law (9:20)
S30 must be read with s31 & s32

S 31. (1) D “does not owe a duty of care…not to cause …mental harm unless D ought to
have foreseen that a person of normal fortitude might in the circumstances of the
case…suffer a recognized psychiatric illness…
(2) The circumstances of the case include whether or not the mental harm was…the
result of a sudden shock whether P witnessed at the at the scene a person being killed,
injured or put in peril…
nature of the relationship between P & any person killed, injured etc
whether there was a pre-existing relationship between P & D.
The wording that says “include” means that it is not an exhaustive list. (12:30)
When the sections are read together, it means that you must establish a duty of care,
AND that you were either a close relative or you were at the scene. The category of
persons is therefore significantly narrower at legislation than at common law. S30 &
32…(14)
Question (15:15)
Seedsman v NSW (2000)

• Employer & employee case. Seedsman was a new Policewoman and was straight
away placed to work in a child abuse unit that the police had. On her first day
she witnessed several horrific scenes and suffered from post traumatic stress
disorder. She had received no counselling or training whatsoever.
• Court said that the employer did owe her a duty of care to protect the proper
counselling & training.
• No ‘single shock’
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Omissions
Duty to Rescuers
Death
A MERE OMISSION : where the failure to act is the only conduct causally linked to the
P’s loss is generally not actionable
BUT where the omission takes place in the course of a larger activity it is not a mere (or
pure) omission and is actionable (eg: failure to stop at a red light).
NOTE: In some circumstances there will be a legally recognized pre-existing duty to take
positive action (eg; occupier of land or premises)
–Mere/’neutral’ omissions are not actionable unless the D is under a pre-existing duty to
act – ie, no duty of care relationship.
If you are meant to take care, then there is a duty relationship, and then the omission
becomes a negligent omission which is actionable.
Negligent Omissions: The Scope
Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29
• P, was seriously injured when struck by a motor vehicle.P had been consumed a
large amount of alcohol at the premises operated by D. According to the club,
they had stopped selling her alcohol because she was drunk. They also claimed
to offer her transport home, which she refused. P argued that the club shouldn’t
have allowed her to leave while she was so drunk.
• P’s appeal to the HCA was dismissed
• D had taken reasonable steps to ensure her safety
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• Heydon J – “How are customers to be lawfully restrained? If customers are
restrained by a threat of force, prima facie the torts of false imprisonment and of
assault will have been committed. If actual force is used to restrain customers,
prima facie the tort of battery will have been committed as well as the tort of
false imprisonment. Further, the use of actual force can be a criminal offence”.
Mercer v Commissioner for Road Transport (1936) 56 CLR 580

• P was a passenger on a tram & was injured when the tram crashed The reason
for the crash was that the driver fainted at the wheel The tram was not fitted
with the “Dead mans handle” a safety device that is designed to stop the tram if
the driver was to faint D argued that no where in the world, was a “Dead mans
handle” fitted on a two man tram, thus there was no need for the device in this
instance, hence there was no negligence, as it was world wide practice to not fit
the devices on two man trams
• The High Court held that there was negligence, courts are not bound by industry
practice, it is wholly up to courts to decide if something is negligent
Negligent Omissions: The Scope

The fundamental element that underpins negligent omissions is the duty of care.
Where D owes a duty to P, D’s breach of the duty in the form of an omission entitles P
to a remedy if P suffers damage
Specific areas of interest:
–Duties of landowners
–Duty to control others under our supervision
–Rescue situations
Landowners
• The landowner as occupier is under a duty to take reasonable care to prevent
damage from hazards from his land.
• The duty applies to hazards created by the land owner, and to those created by
third parties that the landowner is aware of.
Goldman v Hargrave (1963) 110CLR 40

D had a large property in WA. There was a storm which caused a tree on his property to
catch fire. He tried to contain the fire and also called firefighters, and thought he had
done so. Later on, the fire which he thought he had put out rekindled & damaged P’s
property. P argued that D omitted to put out the fire. P lost at the trial
• Privy Council held: D owed a duty to put out the fire even though it was not
started by him
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The Privy Council
[In] the development towards a measured duty of care by occupiers to remove or reduce
hazards to their neighbours….the standard ought to require of the occupier what it is
reasonable to expect of him in his individual circumstances
The Duty to Control others
Home Office v Dorset Yacht Co. Ltd [1970] AC 1004- duty of prison authority
• Prisoners had escaped from an English prison and gone on a “rampage” Court
had to decide who could sue for damages
• Court held that only those immediate to the prison were able to recover
damages, as it was not foreseeable for those far away from the prison to be
injured by escaped prisoners
• The court limited liability this was so as to avoid indeterminate liability
The duty to protect others under Ds control- Children

Geyer v Downs (1977) (Teacher & Pupil)
• An 8year old girl was dropped off to school before school started. The child was
hurt. The school was not officially open yet.
• The court held that once the school authorities are there, then they are expected
to exert control- there is a duty relationship.
Robertson v Swincer (1989)

• A 4 year old was hit by vehicle while parents were talking to friends; issue was
wether parents were contributory negligent. The action was brought by the child
against the driver, who sought to claim contributory negligence from the
parents.
• The court rejected on grounds that parents do not owe a duty of care to the
child.
• Per King J: “The prospect of a parent’s assets being at risk because of a
momentary failure of supervision judged by a court against an objective standard
of reasonable care has alarming personal implications for parents and disturbing
implications for society generally.”
Smith v Leurs (1945)

• Shaghai used by child and P suffered damage,
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• parents not liable
• HCA held that the parents owed a duty of care to stop child from harming others
but the parents had warned the child not to play with the shanghai and thus they
had not breached their duty
• Lack of insurance was a consideration
State of Victoria v Bryar (1970) HCA

• school boy injured in a concentrated exchange of paper pellets in class which the
teacher had failed to prevent
• action against the teacher’s employer succeeded
• approved the Victorian case of Richards v Victoria
Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996)
• student injured whilst waiting at a bus stop outside school grounds
• the school was held liable even though this was outside school hours & grounds
Graham v NSW (2001)

• pupil with bad eye sight sent to walk home from school and was injured
• distinguished from Roman Catholic v Koffman
• held that the school owed no duty except in exceptional circumstances as the
relationship cease to exist outside school boundary
• different as in this case the teachers had had informed the parents no transport
was running that day
The Duty to Rescue

• In general there is no duty to rescue
• Whether a duty exists between P and D will depend on the existence of any pre-
exiting relationship between the parties: –Relations of dependence:
o Teacher student relationship (Geyer v Downs)
o Doctor patient relationship (Lawns v Woods)
o The issue of parental care
o Employer employee relations
o Carrier passenger relations
o Owners of vessels and their passengers:
Horsley v Maclaren
• Someone fell overboard during choppy waters. Someone jumped overboard to
help. They both drowned. The issue was whether there was a duty for the vessel
to rescue them. The court held yes.
• The question of proximity and policy considerations
Lowns v Woods(1996)
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• P on holiday with his family, had epileptic fit. Mother remembered a doctor’s
surgery nearby and told her daughter to get doctor, evidence to show that the
doctor refused to help. The mother had called an ambulance but it was too late,
the boy had been deprived of oxygen resulting in brain damage.
• Held doctor was negligent. (Relevance of the Health Care Act s26)
• It is notable that P was not a patient of the doctor.
• Doctors have a duty to take positive action- decided on proximity test but still
relevant
BT v Oei (1999)
• doctor has a duty to inform the partner of a person with HIV
Alexander v Heise (2001)

• NSW Supreme Court GP owes a duty of care to a prospective pt who contacts
his or her office by telephone
The Duty to Protect
Hill v Chief Constable of West Yorkshire:

• P, the parents of a serial killer’s last victim sue police for negligence in letting off
the murderer during an interview, held no duty. They had omitted, negligently
to ask some questions of the murderer & apprehend him.
• On a policy basis, they were not held liable. To hold them liable would be to
delve into complex resource issues.
Owners of premises
Alcock v Chief Constable
• This was an English case The police who were on crowd control in the
Hillsborough disaster negligently allowed one of the stands to be overcrowded.
They were to close the doors when full but failed to do so and the stand
collapsed. More than 100 people were killed. Alcock was concerned with
nervous shock suffered by others on the ground who could see what had
happened and who knew people involved but weren’t physically involved
themselves. Alcock was a group of P’s, including some who watched it on TV.
• House of Lord made a distinction between primary & secondary victims.
(Australia has not taken these) (24:30)
• P must have been present at the accident or its immediate aftermath
• The psychiatric injury must have been caused by direct perception of the
accident or its immediate aftermath .
• Therefore those that saw it on TV could not recover. None of the P’s succeeded.
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• HL took a very narrow view.
Lord Oliver of Aylmerton:
• Primary victim: “involved either mediately or immediately as a participant”
• Secondary victim: “no more than the passive and unwilling witness of injury
caused to others”
White & Others v Chief Constable of South Yorkshire H.L 3.12.98

• Police were not rescuers but gave assistance to the injured. Police were never in
physical danger themselves (cf Chadwick v. British Railways Bd. (1967) 1 QB 912)
Police were employees and argued that they were therefore “primary victims”
bec of the duty owed to them by their employer but the ordinary principles of
recovery for N.S. still apply
• Police were not able to recover as it was held that such scenes would be
expected in their work
Seedsman v NSW 2000

Employer & employee case. Seedsman was a new policewoman who suffered psych
harm as a result of horrific first day at work without counselling and ill treatment from
other officers
• HCA found for the P
• Employer owed a duty of care to provide counselling
Criminal Behaviour
Modbury Triangle Shopping Centre v Anzil(2000)
• P attacked by assailants in car park of shopping centre operated by D after he
had finished working. D had not turned on lights in the car park.
• Held on appeal D not negligent.
• Could not recover for policy reasons
Smith v Littlewoods Organisation Ltd (1987)

• House of Lords- D was a supermarket which owned a derelict property, vandals
caused fire spreading to neighbours
• the court held that it did not owe a duty
• criminal behaviour is unpredictable and :. Not reasonably foreseeable
WD & Ho Wheels Australia Ltd v State Rail Authority (1998) NSWCA

• P goods were stolen from property in the middle of the D rail yard
• court held that there was no duty criminal behaviour unpredictable
Ashrafi Persian Trading Co v Ashrafinia (2002) NSWCA

• P hit on head by unknown while in D’s hotel
• no duty for criminal act
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Club Italia Geelong Inc v Ritchie (2001)

• VicCA P’s police injured during violent brawl at D’s nightclub,
• bouncers had known trouble maker and knew situation in the club had gotten
worse but had not warned the Ps
• the D was liable as they were aware of risk
• it was not unpredictabl;e criminal behaviour but reasonably foreseeable
Chomentowski v Red Garter Restaurant ltd (1970)

• Employee taking employers money to bank, was robbed and argued employer
should have sent another employee with him. NSWCA held for the plaintiff.
• Risk was small but real.
The Duty to Rescuers

• Common law does not impose a duty upon individual to go to the aid of an
injured person
• H/w once individual embarks on an attempt they will owe a duty to those they
assist
• Where D’s conduct places him/herself or another in a situation of peril that
requires rescue, D owes duty to the rescuer
• The duty to the rescuer was generally thought to be dependent on the duty
owed to the rescuee in situations where D’s conduct had made rescue necessary
********Part 8 s55-58*********
Haynes v Harwood (1934) ALL ER 103 :

• Employee helped child on railway
• child was a trespasser, there is no duty owed to the trespasser and therefore no
duty owed to the rescuer
Videan v British Transport [1963] : Child stray on railway track as trespasser. Duty was
owed to the rescuer
• House of Lords held that whether the rescuee was a trespasser, or guilty of
contributory neg. is irrelevant in regard to the duty owed to the rescuer
Whether a Duty of Care is owed to rescue officers
White v The Chief Constable [1999] 2 AC 455

• where police officers called in to deal with a disaster at the Hillsborough
Football stadium sued for nervous shock. Held rescuers were secondary victims
to they must:
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1. Have close ties of close and affection with the primary victim;
2. Have been present at the accident or its immediate aftermath;
3. Have suffered immediate aftermath and not upon hearing it from
someone else.
Foreseeability and Rescuers

While the D whose conduct makes the rescue necessary owes a duty to the rescuer the
question remains whether foreseeability is the proper foundation for the existence of
duty
Chapman v Hearse
Defences
Volenti non fit Injuria
Generally NOT available in rescue cases.
• on the basis that the duty thrust upon the rescuer in an emergency, whether
legal or moral excludes all real choice, regardless of the rescuer being a
volunteer or a professional
Contributory Negligence
In general, Contributory Negligence is also not available as a defence
Harrison v British Railways :The P was the executor of the estate of a doctor, who went
down a well to rescue workers who had been overcome by fumes. He too was overcome
by the fumes, and died.
• Court held that he was owed a duty by the employer,
• held that there was no contributory negligence,
• P’s actions must be judged in the emergency that existed and not hindsight–
had to look at the ‘agony of the moment’.
The Liability of the Rescuer: The Good Samaritan
Part 8 CLA s 56: "good Samaritan" is a person who, in good faith and without
expectation of payment or other reward, comes to the assistance of a person who is
apparently injured or at risk of being injured
S57: (1) A good samaritan does not incur any personal civil liability in respect of any act
or omission done or made by the good samaritan in an emergency when assisting a
person who is apparently injured or at risk of being injured.
(2) This section does not affect the vicarious liability of any other person for the acts or
omissions of the good samaritan
S58: (1) The protection from personal liability conferred by this Part does not apply if it is
the good Samaritan’s intentional or negligent act or omission that caused the injury or
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risk of injury in respect of which the good samaritan first comes to the assistance of the
person.
(2) The protection from personal liability in respect of an act or omission does not apply
if:
(a) the ability of the good samaritan to exercise reasonable care and skill was
significantly impaired by reason of the good samaritan being under the influence of
alcohol or a drug voluntarily consumed
(b) the good Samaritan failed to exercise reasonable care and skill in connection with the
act or omission.
3) no protection from personal liability on a person if impersonating a health care or
emergency services worker or a police officer or is otherwise falsely representing that
the person has skills or expertise in connection with the rendering of emergency
assistance
Death
The two potential Ps are the estate and the dependents of the deceased.
actio personalis maritur cum persona- Traditionally the action died with the person
Changed by:
LAW REFORM (MISC. PROV.) ACT 1944 s2 - allowed the survival of a cause of action to
the estate of the deceased.
• Some causes of actions and heads of damage were, however, excluded.
• Part II Survival of causes of Action After Death – subject to the provisions of this
section, on death of any person… all causes of action subsisting against or vested
in him shall survive against, or, as the case may be, for the benefit of, his
estate;…
• S2(2) of the Act does not allow for recovery of the following types of damages:
-Exemplary damages
-Loss of earning capacity/loss of future probable earnings (dependents
claim)
-Loss of expectation of life
-Pain & suffering.
Compensation for Relatives
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Baker v Bolton 1808 At common law, the death of a person was not regarded as an
injury to their relative.
In England the Lord Campbell's Act (1846) was introduced to allow actions for
Compensation to relatives. Australian jurisdiction adopted similar legislation:
COMPENSATION TO RELATIVES ACT 1897 (NSW):

S 3(1) Whenever the death of a person is caused by a wrongful act, and the act is such as
would (if death had not ensued) have entitled the party injured to maintain an action
and recover damages… then the person who would have been liable … shall be liable to
an action in damages.
Scope of the Act
S 3(3) can recover funeral expenses
S 3(3) In assessing damages, NOT to take into account insurance, superannuation,
pension, payable as a result of the deaths.
S 4 Action for the benefit of listed relatives: wife, husband, brother, sister (including half
brothers and sisters), parent, child, de facto spouse of deceased. Under s 7 – parents
include grandparents, step-parents, persons ‘in loco parentis’, child includes grandchild,
step-child. It is not just for anyone – it is really for ‘dependents’
The Condition Precedent

The right of action of the relative is very much dependent on whether the deceased
would have been entitled to an action. Thus where the deceased would not have been
entitled to an action P cannot sue either
The Stella: P’s husband drowned on a steam boat because shipping company was
negligent. The husband’s ticket contained an exclusion clause which excluded liability.
Therefore the deceased would not have any claim
Nonan v Southern Railways:

• Husband was killed in train crash. His ticket limited liability to 100 pounds. The
Court held that as long as the deceased had a cause of action, his widow had a
cause of action.
• Widow had cause of action where ticket of deceased limited liability.
• Widow’s damages not limited b/c. Her action under the statute new &
separate fromdeceased’s.
Woolworths v Crotty:
• Mr Crotty bought a light bulb and got shocked to death. Widow sued
Woolworths. Woolworths argued that they weren’t liable.
• The Court said that there was a breach of contact since the light bulb was not of
a merchantable quality.
• THEREFORE, the wrongful act causing death need not be tortious to be liable.
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S.4 & S.7 of Act

Only ONE action is brought for the benefit of all entitled claimants.
Action is brought by the Legal Personal Representative (executor or administrator of
estate) of deceased.
McIntosh v Williams Business partners
Haber v Walker- Wrongful act must CAUSE death

Assessment of Damages
Basic principle is that DEPENDANTS are to be compensated for pecuniary loss (either
actual or perspective) resulting from the death.
Parker v The Commonwealth

• Damages “should be calculated in reference to a reasonable expectation of
pecuniary benefit…from continuance of the life”
Public Trustee v Zoanetti (1945) 70CLR 266

• ‘The basis for the action is not what has been called solatium, that is to say,
damages given for injured feelings or on the ground of sentiment, but damages
based on compensation for pecuniary loss’
• What must be ascertained is whether any and what loss has been sustained by
the relatives of the deceased after comparing the material benefits depending
up on his life with any material gains accruing from his death (per Dixon J, at 279)
Vicarious Liability
Introduction: Personal Liability
• There are instances where a party may be held liable for torts committed by
another: vicarious relationship.
Vicarious liability: D (usually the master/employer) is held liable for the torts of another
(usually his or her servant/employee) although the master is without any blame or fault.
Types of Vicarious Relations:
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• Master Servant Situations
• Partnerships
• Principal and Agent Relations
• The Employer-Employee (Master-Servant) Relations
An employer is vicariously liable for the tortuous acts or omissions by his employee in
the course of employment whether or not such act or omission was specifically
authorised by the employer.
Principal & Agent Relations

• An agent acts for the principal; but the liability of the principal for the act of the
agent is not based on vicarious liability.
• The liability of the principal is based on the maxim quifacit per alium, facit per se.
He who does something through another, does it themselves.
• The agent acts in a representative capacity and has the authority to act for the
principal but is not necessarily a servant.
The Rationale for Vicarious Liability

Traditionally the common law viewed the master as responsible for the servant’s
conduct, (this is the policy reason);
This therefore imposes a duty on their

• Choice and training of employees: Liability tends to provide a spur toward
careful
selection, training and supervision of employees;
• Benefits and the burden: Since the employer receives the benefits of the
activities of the enterprise, he should also bear its burdens;
• The ability to pay (The master has the ‘deeper pocket’): Liability increases the
likelihood of accident victims receiving compensation, and
• Loss distribution: Liability will result in broad and equitable distribution of
the cost of accidents.
SERVANTS AND INDEPENDENT CONTRACTORS

Vicarious liability arises only in respect of the torts of the servant; The master/employer
is therefore responsible only for the torts of the servant and not the independent
contractor
Must be a servant, and commit the tort in the course of his or her employment
SERVANT: one who is under a contract of service to another,

INDEPENDENT CONTRATOR: is under a contract for services.
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• The contractor is paid for the job by results rather than for time spent,
receives a fee or commission, the servant receives wages
• The contractor is usually employed on a casual basis, the servant on a
permanent basis.
• The contractor usually specifies his/her work schedule and supplies his/her
own tools.
• The master may select tasks for the servant.
________________________________________________________________________
THE CONTROL TEST
The employer could control both what was done and how it was done
Zuijis v Writh Bros (1955) HCA

• held that P an employee even though the employer could not control the
technical aspects of his employment could still control uniform time wages and
right to dismiss
• Specialised skill of employee
What matters is lawful authority to command so far as there is scope for it
Factors considered relevant to employment relationship:
• Power of selecting staff
• Remuneration in form of wages
• Right of master to dismiss
• Right to control in some degree
________________________________________________________________________
DIFFICULTIES WITH SPECIALIST EMPLOYEES
CONTROL TEST PREVAILS WITH “OTHER INDICIA” BEING CONSIDERED
Stevens v Brodribb River Sawmilling Co (1986)-
• snigger case modified control test
• In many cases the “control test” is still appropriate.
• BUT in modern conditions a person may exercise personal skills so as to prevent
control
OTHER INDICIA of employment relationship:
• Right to have the particular person do the work
• Right to suspend or dismiss
• Right to exclusive services of person engaged
• Right to dictat place of work, hours etc
INDICIA OF A CONTRACT FOR SERVICES
• A profession or trade or distinct calling of the contractor
• Provision of own place of work or equipment
• Creation of contractor of goodwill, saleable assets
• Payment of own business expenses
• No deduction from remuneration for income tax
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• These factors are no more than a guide to the nature of the relationship. They
will not all have the same significance in all cases.
• Per Mason J: “If an entrepreneur engages independent contractors to do work
which might as readily be done by employees in circumstances where there is a
risk to them of injury arising from the nature of the work and where there is a
need for him to give direction as to when an where the work is to be done and to
coordinate the various activities, he has an obligation to prescribe a safe system
of work. The fact that they are not employees, or that he does not retain a right
to control them in the manner in which they carry out their work, should not
affect the existence of an obligation to prescribe a safe system”
• It is not the ‘label’, but the substance of services rendered. However, the fact
that it is in the contract should not be dismissed either.
Borrowed Servants
This is like the situation of a temporary worker. For example a ‘wet lease’ is a situation
for tools where the operator comes as well. These fit into borrowed services. Instances
of borrowed services:
• · The general (ie regular) employer leases (out) a vehicle or equipment such as
crane with employee as operator, to a party (special employer) who has a
temporary need for such machinery. Employee commits a tort by the negligent
operation machinery
• ·The general employer as his business provides temporary workers to other
parties
• (special employers), sometimes simply as day labourers, sometimes as skilled
workers for specified periods of time.
• The general employer, by an agreement with the special employer assigns the
employee to work for the special employer for a specified period on secondment
or attachment etc. This is like a vendor situation. The employee remains the
servant of the company that sent them to work there.
The Test in the case of Borrowed Servants

• The transfer or loan of an employee to the special employer is not intended to
terminate the employee’s employment with the general employer.
• An employee is presumed to continue in the employment of the general
employer. P or the general employee carries the burden of proof where there is
an allegation that the special employer has assumed control and become the
principal employer
• The test is control
Mersey Docks & Harbour Board v Coggins & Griffith –

• Someone who had been hired out to D’s company, caused an injury while
operating a crane on a wet lease agreement.
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• General employer not temporary employer because General employer retained
control over way work done
McDonald v Cth
• The situation here was different. The permanent employer loaned out their
employee to the Cth who wanted to construct a secret airstrip.
• the Cth had control because the employer had no idea & no control.
• The permanent employer was therefore not held liable.
• The case of borrowed servants illustrates the requirement of a chain of
command.
• In choosing which employer is liable the nature and extent of control is
considered
Limits of the Control Test

Stevens v Brodribb Sawmilling
• The nature of the service to be performed is essential in determining the
relationship. It also depends on the job done.
• “Uncontrollability of a person forming part of an organization as to the manner
in which work is performed does not preclude …a relationship of master &
servant”
Albrighton v Royal Prince Alfred Hospital –P injured due to negligence of doctors in the
hospital, issue was who was liable.
• Held that because the patient went to the hospital the D hospital owed her a
“non-delegable” duty – not because they were the employer of the doctor.
• Patient of hospital rather than the dr
The Evidence of ‘Control’

These must be seen in their totality before a conclusion is drawn.
Master- servant relationship:
• Right to have the particular person do the work – the master has a right to
choose who does the work. An independent contractor may bring others
• Right to suspend or dismiss – this is a grey area
• Right to exclusive services of person engaged
• Right to dictate place of work, hours etc
Independent contractors:
• A profession or trade or distinct calling of the contractor
• Provision of own place of work or equipment
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• Creation of contractor of goodwill, saleable assets
• Payment of own business expenses
• No deduction from remuneration for income tax
• These factors are not conclusive
• The Totality of the Relationship
Hollis Pty Ltd t/as Crisis Couriers v Vabu (2001) :

• (motor cycle & bicycle couriers) Gleeson CJ, Gaudron, Gummow, Kirby & Hayne
JJ (McHugh & Callinan dissenting)
• In present case relationship between Parties is to be found not only in the
contractual terms but in the system which was operated there under and the
work practices imposed, eg supplying of own bicycle, who supplied uniforms,
using own equipment.
The couriers were employees because:
o No independence in choosing the jobs

o Controlled by superiors
o Did not own their own business
o control is no longer the only relevant factor.
• The totality of the relationship between the parties must be considered
• They did not provide skilled labour, had little control over manner of work
• were presented to the public as “emanations” of D e.g. they wore a uniform
• Policy consideration to support vicarious liability is deterrence of harm -
encourages employer to reduce risk of future harm.
• If indeed the liability of the company is taken away, then they are not being
sensitive to looking after the employees.
• D “superintended” couriers’ finances supplied own bicycles but capital outlay
relatively small - simply indicates employment conditions favourable to
employer was considerable scope for control by D - allocation & direction of
deliveries.
Vabu v Federal Commissioner of Taxation (1996)- NSW CA-

• court held that the couriers were not employee for superannuation purposed
used Stevens v Brodribb
Hollis v Vabu HCA 2001

Gleeson CJ, Gaudron, Gummow, Kirby & Hayne JJ (McHugh & Callinan dissenting)
Parties assessed not only in the contractual terms but in the system which was operated
there under and the work practices imposed
CONTROL is not now the only relevant factor. The totality of the relationship bet ween
The parties must be considered
The couriers were employees because:
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They did not provide skilled labour had little control over manner of work were
presented to the public as “emanations” of D
Policy consideration to support vicarious liability is deterrence of harm - encourages
employer to reduce risk of future harm
D “superintended” couriers’ finances
supplied own bicycles but capital outlay relatively small - simply indicates employment
conditions favourable to employer was considerable scope for control by D - allocation
& direction of deliveries
FOR THE EMPLOYER TO BE VICARIOUSLY LIABLE THE TORT OF THE EMPLOYEE MUST
HAVE BEEN COMMITTED IN THE COURSE OF EMPLOYMENT
Two enquiries
1. What tasks are authorized
2. Is the employee’s tortuous act so connected to authorize tasks that it can be
seen as a mode of carrying out the task albeit wrongful?
________________________________________________________________________
Integration/Enterprise Test
Stevenson Jordan and Harrison Ltd v McDonald and Evans (1952)
Denning LJ “under a contract of service a man is employed as part of the business and
his work is done as an integral part of the business whereas under a contract for
services his work although done for the business is not integrated into it but is only
accessory to it”
Multifactor Test
Hospital Doctor
Cassidy v Ministry of Health (1951)-
• authorities who run a hospital in law are under the same duty as a doctor
(doctor employed by the hospital)
Albrighton v RPA Hospital (1980) –

• hospital liable for the actions of 2 specialists
• Control test no longer acceptable in its full rigour
• “Uncontrolability of a person forming part of an organization as to the manner in
which work is performed does not preclude …a relationship of master & servant”
(note: visiting specialist doctors not employees but hospital may owe non-
delegable duty to “public” patients)
Ellis v Wallsend District Hospital (1989)

• failure to warn of risk by surgeon, held that surgeon is not an employee :. Hosp
not liable- the hosp was merely a venue for the surgery as the patient visited the
surgeon at his surgery and was a private pt and are treated differently to those
which come directly to the hospital question of what service the hospital is to
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provide distinguished from Albrighton as there the patient went directly to the
hospital
In The Course of Employment

D is liable only if the servant committed the tort in the course of his or her employment
Factors:
• What tasks are authorized
• Whether the employee’s tortuous act was an unauthorised manner of doing an
authorised act
Deaton v Flew(1949)
• Barmaid claimed that P abused her & she threw a glass of beer at him P lost an
eye & sued the bar not the employee.
• The court agreed that what happened was not in the course of her employment.
• They looked at what she was employed to do.
• Her act was a person thing and involved animosity
·Canterbury Bankstown RLFC v Rogers (1993) –

• P was the victim of a tackle done by Mr Bugnan who was employed by D. D
argued that it was not responsible for Mr B’s actions. Mr B argued that he was
allowed to tackle.
• The NSW CA said the tackle occurred in the course of Mr B’s employment
• even though it was by improper means (contrary to the rules of the game but
not outside the scope of the game) it was not outside the scope of employment
• also significant that there was no animosity between the players
• the improper use of force was not so excessive to change the act into something
so excessive to place it outside the scope of employment
Century Insurance Co v Northern Ireland Road Transport Board (1942) –

• man employed to drive a petrol tanker to filling stations and lit a cigarette whilst
filling a tank this caused an explosion,
• the employer was held vicariously liable as he was acting within the scope of
employment as his duty was to watch over the delivery of into the tank
• smoking whilst doing his job was doing an authorised act in an unauthorised way
‘A Frolic of his/her Own’

Joel v Morison (1834)
• in general the employer is not liable where the employee commits a tort while
on a ‘frolic of his or her own’ Per Parke B (not vicariously liable)
Storey v Ashton (1869)
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• Clerk deviated form the most direct route of delivery as he decided to visit a
family member
• court held that the employer was only responsible for as long as he was carrying
out his employment
• responsibility ended when he deviated from his journey
Hilton v Thomas Burton (1961)

• worker decided that he had had enough and went to a far away café and this
was held not to be within employment
Harvey v O’Dell (1958)

• the employee went on a detour to get more tools & lunch was in scope of
employment.
• Not a frolic of their own because Employees were paid subsistence money & not
required to take lunch with them
Petrou v Hatzigeorgiou (1991)

• Horseplay / practical jokes by employees may be within the course of
employment
• P worked as an apprentice at a panel beater. He was doused in paint thinner &
set alight
• the business partner was vicariously liable for the actions of the other partners
• The fact that the act went outside the permitted level of horseplay did not take it
outside the course of the business.
• The court held against D.
Prohibitions on the Employee

Limpus v London General Omnibus (1862)
• employer told the bus drivers not to race each other the employee disregarded
causing damage it was
• held that by giving this instruction he did not discharge his liability
• it was an authorised act of driving the bus done in an unauthorised way
Beard v London General Omnibus (1900)

• bus drawn by horses, driver in a restaurant and the conductor moved the bus
around
• Court held that the bus company was not liable as the conductor was not
authorised to move the bus
Rose v Plenty (1976)
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• Milkman allowed child to accompany him on his rounds the child suffered injury
• the court held that the employer was vicariously liable even though the
company forbid taking children along in its policies
• as this was carrying out an authorised act in an unauthorised way
Bugge v Brown (1918) - In this case a person was working for his boss was given
materials to cook, and the area caught fire as he cooked the food in the wrong place.
• The court stated that he was doing an authorised act in an unauthorised way and
thus his actions were within the course of employment and his employer was
vicariously liable
• To limit the sphere of employment the prohibition “ must be such that its
violation makes the servant’s conduct ..so distinctly remote and disconnected
from his employment…”
Exceptions to the above rules

1. Where the ‘employer’ has AUTHORISED the independent Contractor to commit a tort,
eg if we tell a taxi driver to run over someone:
Eg: McInnes v. Wardle
2. Where the tort is one of STRICT LIABILITY or where D’s JOINTLY LIABLE
3. The most common mode of liability is where D owes a NON-DELEGABLE DUTY OF
CARE. You cannot get someone to take the duty of care on someone’s behalf.
The high court to date has identified these limited Main categories of non delegable
duties
• employer/employee -
• occupiers of a building in some circumstances
• hospitals to patients
• bailees for reward
• schools and pupils
• dangerous use/occupation of premises
• Employer/employee
Non-Delegable Duty
Kondis v. S.T.A. (1986)-
• Kondis an employee of the STA was injured when part of a crane operated by an
independent contractor fell on him. The STA had hired the crane driver. Kondis
claimed he was owed a duty of care. STA argued that there was an independent
contractor.
• HC said STA liable because Kondis was owed a non-delegable duty of care for the
safety of their employees.
• Mason, Murphy, Dawson, Deane JJ – commonly there is a relationship between
the parties that makes it appropriate to impose a duty of care that can be found
in certain circumstances, arising because D has undertaken the care, supervision
& control, and there is a vulnerability on the part of the person to whom the
duty is owed.
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• Mason notes that a non delegable duty is owed by hospitals to patients and by
schools to pupils
• D directly liable to P for neg of I.C. because D owes non-delegable duty
• A duty to ensure reasonable CARE is taken.
• An element in a special relationship between P & D which generates special
responsibility.
• D has undertaken care, supervision or control of P so as to assume responsibility.
1. Occupiers
Prior to Zaluzna - Inviter liable to invitee for neg of I.C.
Northern Sandblasting v. Harris (1997)

• land lord did not owe a non delegable duty
• his duty did not extend beyond the hire of a competent subcontractor to work
on the house
• case of an electrician who did faulty work and caused the tenant to become
electrocuted
2. Owners
Soblusky v Egan (1960)
• HCA held that the owner of a motor vehicle is vicariously liable for the
negligence of those who drive the vehicle with his permission
Scott v Davis (2000) the principle above did not extend to planes
Frost v Warner (2002) the above principle did not extend to boats
3.Hospitals
Cassidy v. Ministry of Health – (1951) England.
• Denning LJ. Where Hospital provides services to patient the hosp is liable for
independent BUT where patient chooses & employs DR. then Hosp not liable.
Ellis v. Wallsend Dist. Hosp.(1989) - NSWCA

• Where hosp does not provide services of specialist but just provides premises
and attendant staff then hosp not liable for neg of independent contractor Dr.
• the hospital was merely a venue
• Distinction between the patients of a dr and those of the hospital
Albrighton v. R.P.A.- NSWCA

• P attended Hosp as a public patient and hosp undertook to provide medical
services
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• includes specialist Dr, then Hosp owes non delegable duty and is liable for Neg of
independent
4. Bailees for Reward

Morris v. Martin & Sons – An item of clothing sent off to be cleaned, but cleaner sent to
a sub contractor and was then lost.
• Non-delegable duty of bailor to bailee
5. Schools & Pupils

Commonwealth v. Introvigne –
• HC decided that a school owed a non-delegable duty of care to the safety of the
pupils.
• P was a primary school pupil who was injured before school when children were
unsupervised. Playing with flagpole which fell on him. School in ACT owned by
CTH. All teachers were provided by NSW Department of Education. Child sued
the Cth who had contracted the teachers. Cth argued that the teachers were
independent contractors.
• Court held that the School could not delegate duty to keep children safe to 3rd
party.
6. A new category: Dangerous Use/Occupation of Premises

Rylands v Fletcher
• ‘owner or occupier brings something onto his land which did not ordinarily
belong there escapes from his peril and creates a mischief is responsible for the
entire result of the negligence of the thing’ – old rule
Port Authority v. General Jones Pty Ltd. – (1994)

• BPA was port authority in Tasmania. D owned and occupied some premises in
Tasmania, having some welding work done on the premises by an independent
contractor. This was nearby to some highly flammable insulating material.
Independent contractor was negligent and caused a fire, destroying P’s
warehouse full of frozen peas. P sued D for negligence, but D blamed the
independent contractor.
• Court said that in the circumstances where there is some dangerous purpose,
then a duty is owed to the neighbours.
• Mason, Deane, Dawson, Gaudron (28:30) – where D brings anything onto
property anything that poses a special risk of harm if it escapes, then there is a
non delegable duty of care.
• Relationship of proximity giving rise to non delegable duty is marked by special
dependence or vulnerability
• is also characterised by a central element of control where D brings something
dangerous onto property- Rylands and Fletcher rule subsumed into negligence by
the HCA in this case
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• D liable for neg of I.C.
Civil Liability Act s 5Q
Common Law Liability of Employers

Parallel to Workers Compensation Legislation. At common law you are entitled to wage
loss, medical expenses and also general damages, which is more than from the Worker’s
Comp Scheme.
However, the Worker’s Comp has restricted the worker’s right to recover by the
common law.
Duty: Classic formulation:

Wilson & Clyde Coal Co v. English (1938) -
• The employer’s duty requires:
1.Provision of competent staff
2.Adequate materials (plant, premises & equipment.)
3. A proper system and effective supervision
All included in ONE duty: to take reasonable care for the safety of the employee.
Employer’s duty is Non-delegable
Kondis v. S.T.A.
Stevens v. Brodribb Sawmilling Co.
Davie v. New Merton

• Employer’s liability at common law is not strict and negligence must be shown
Sumner v. William Henderson Standard of Care
McLean v Tedman & Brambles(1984) –

• McLean run over by Tedman working for Brambles on a garbage run. McLean
was the garbage truck employer. Employer had said you must do your job
carefully, but knew that the employees didn’t do it this way.
• The employer’s duty was not merely to provide a safe system of work, but to
establish, maintain and enforce such a system of safe work.
• HC also looked at the issue of contributory negligence, it was argued that
McLean was careless.
• HC said that the risk of inadvertence or carelessness on the employee’s part is
within employer’s duty of care and to safeguard against.
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.
Standard of Care
Raimondo v. State of Sth Aust. (1979) 23 ALR 513
• “to ensure that all reasonable steps were taken to provide a reasonably safe
system of working”
• relevant factors:
o degree of risk
o likely degree of injury
o nature of remedial action open to employer.
McLean v. Tedman(1984)
• Foreseeable & significant risk
• risk of Inadvertence on Employee’s part is w/in Employer’s duty
• Employer’s duty not merely to provide a safe system of work BUT TO ESTABLISH,
MAINTAIN & ENFORCE such a system.
Vozza v Tooth (1964) NSW

• P worked at a brewery a certain percentage of glasses would explode, glass burst
in employee’s hand issue of whether the gloves provided were sufficient
• it was held that thicker gloves would not be practical
• employee had established a safe work system
Hamilton v Nuroof (WA) Pty Ltd (1956)

• pf working on roof and spilt bitumen on his hand Dixon and Kitto JJ a reasonable
and prudent employer is bound to take into consideration
• the degree of injury
• risk of accident
• risk of taking precaution
• Risk that is real and not fanciful
General Cleaning Contractors v Christmas (1953)

• window cleaner forced to stand on narrow sill to clean and was injured the
employer said that as an experienced workmen he knew of the risk
• the House of Lords held that it was not reasonable to expect employees to take
steps to avoid risk
Concurrent Liability
__________________________________________________________________
CONCURRENT LIABILITY
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1. Joint tortfeasors includes vicarious liability, Agency, When a duty is imposed jointly
(like when there are 2 occupiers of a premises. They will be jointly liable to injured P),
Where 2 or more Ds take concerted action to a common end (eg in defamation –
author, publisher & printer of defamatory material) P has one cause of action. The Ds
are jointly & severally liable. P can get damages from one, all or as many as P wants. But
P will only be entitled to 100%.
2. Several Concurrent Tortfeasors. Chapman v Hearse fitted in this category, where
there are 2 or more Ds not acting in concert who nevertheless inflict a single injury on P.
P has several causes of action in respect of one injury. Ds jointly & severally liable.
Contributions Between Tortfeasors

Merryweather v Nixon: At common law the rule was that one tortfeasor could not
recover any contribution from another tortfeasor
This rule was abolished by s5 of the Law Reform Miscellaneous Provisions Act 1946 NSW
which allows one concurrent tortfeasor (whether joint or several) to recover from the
others a contribution to the damages paid to P.
Amount of contribution recoverable: “such as may be found by the court to be just and
equitable having regard to the extent” of Ds responsibility for the damage.
AMOUNT of contribution recoverable: “such as may be found by the court to be just and
equitable having regard to the extent” of D’s responsibility for the damage.
NOTE: applies only to liability in TORT - not contract or other areas.
NOW SEE CIVIL LIABILITY AMENDMENT (PERSONAL RESPONSIBILITY) ACT

Part 4 Proportionate Liability
S. 34 Part applies to:
a) claims for economic loss or damage to property in an action for damages…in contract
or tort or otherwise arising from…concurrent wrongdoers
b) a claim for damages under s. 42 Fair Trading Act 1987
S.34 (4)…does not matter that a concurrent wrongdoer is insolvent…wound up…ceased
to exist or died
S.35 (1) (a) liability of…concurrent wrongdoer…limited to an amount reflecting that
proportion of the damage…that the court considers just having regard to the extent of
the defendant’s responsibility …
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Tort of Private Nuisance
Not negligence, not trespass.
• The ordinary everyday usage of nuisance is an unreasonable conduct that
materially interferes with the ordinary comfort of human existence.
• In the law of tort there are two sides of nuisance: private & public.
• The tort protects against interferences with the enjoyment of land: “an unlawful
interference with a person’s use of enjoyment of land or some right over or in
connection with it” per Windeyer J in
Hargrave v Goldman(1963)
• Torts usage: the term ‘nuisance’ is properly applied only to such actionable user
of land as interferes with the enjoyment by the plaintiff of rights in land.
• Windeyer, J “an unlawful interference with a person’s use of enjoyment of land
or some right over or in connection with it.”
Stockwell v VIC [2001] VSC 497

• P had a farm. Government declared area next to it a conservation area which no
one was allowed to enter. The problem was that it was so successful that wild
dogs started breeding in this area and began to cross into P’s farm, killing many
sheep over a few years. The issue was whether the government of VIC was liable
inter alia in nuisance.
To bring an action in nuisance:
• P is a person in actual possession of the land affected
• Either as a freeholder or a tenant or a licensee with exclusive possession
Halsey v. Esso Petroleum(1961)

• Pollution – acid smuts, smell
• Noise
• Not merely trivial”
2 ways private nuisance can occur:

-by interference with P’s use & enjoyment (interest) of land
-By material damage to ppty
-in cases of material damage LOCALITY is IRRELEVANT
-in other cases LOCALITY is a FACTOR to be considered.
Interests protected
D’s conduct must impact on P’s land as a form of interference to the enjoyment of the
land in question:
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Victoria Park Racing v Taylor(1937)

• P organised races and D constructs a platform on high land to view and comment
on races taking place on P’s land.
• There is no trespass because there was no interference with P’s property.
• Court said there wasn’t an action in nuisance because it had no interference with
the enjoyment of P’s property as such because it was open to the public anyway.
• racecourse still suitable for use as racecourse
Thomson v-Schwab v Costaki – D had a brothel next door to P.

• The residential purpose of the suburb meant that a brothel next to P’s house
was a nuisance.
Dollar Sweets v Federated Confectioners

• Picket lines interfered with people going onto a property was a nuisance.
• held to interfere with P’s right of free access to & from property.
Broderick Motors P/L v Rother(1986)

• D parked car outside P’s dealership,
• No nuisance as D did not try to prevent people from entering
Animal Liberation VIC v Gasser

• demonstration cases were deemed to be a nuisance.
• Ds demonstrated at P’s circus
• Patrons had to walk a “gauntlet” whilst D’s shouted
• Held to be a nuisance by “besetting” the property and putting entrants in fear
for their safety.
Title to Sue
Oldham v. Lawson (no 1)(1976)
• If P not owner, has no proprietary interest in property then no standing to sue.
• In this case P & his wife sued 4 Ds
• tenants next door to his property.
• Action was brought on the basis that Ds objected to his right of action in
nuisance.
• They argued that the house was in the wife’s name. The husband could not be an
appropriate P in the case because he was technically only a licensee, without a
proper interest in the land.
Motherwell v Motherwell – Sister in law v rest of family.

• There was a problem in the family, and the sister in law called the house several
times a day.
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• The question was whether the wife who did not own the property could sue in
nuisance.
• Court held that she could even without a proprietary interest.
• The court said that gone are the days when women are regarded as second
citizens who merely lives with her husband with no other rights.
Hunter & Ors. V. Canary Wharf (1997) 2 AllER 426-
Khorasandjian v. Bush(1993)
• A young girl had a fallout with her boyfriend. He began to call her very often
every day. The man managed to get hold of her number no matter how many
times she changed it. She sought an injunction to stop him from doing this. P
successful even though no proprietary interest.
• Phone calls and other harassing conduct held to be a nuisance.
BUT this case overruled by:
Hunter v Canary Wharf (1997)

• HL went back to Oldham v Lawson – a proper statement of the law in the way
that it involved a proprietary interest in land to sue.
• Today, this still stands – you must have a proprietary interest in the land,
designed to protect the value of the land, the interest in the land.
Victoria Park Racing v Taylor (1937)
ABC v Lenah Games Meats P/L (2001) 185 ALR 1
Raciti v Hughes (1995) –

• D put a sensor lights in his backyard, such that when P went into his own
backyard, D’s sensor light was trained on him, as well as cameras. Young J held
that D was liable in nuisance.
Factors Considered to Determine When Conduct is a Nuisance

• D’s conduct must be unreasonable.
• In general act/conduct which are reasonably necessary for the normal user of
land would not be considered unreasonable
1.Triviality
Munro v. Southern Dairies –
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• P engaged in milk delivery business in a normal residential area where smells
from D’s property where he keeps 5-7 horses with associated smells, noise and
flies. It was held to be a nuisance.
• It was not in keeping with residential area.
• No damage therefore locality is a factor.
• “not merely according to elegant or dainty modes… but according to plain and
sober and simple notions amongst English people”
”A balance has to be maintained between the right of the occupier to do what he likes
with his own, and the right of his neighbour not to be interfered with. It is impossible to
give any precise or universal formula, but it may boadly be said that a useful…
2. Locality
St. Helens Smelting co. v. Tipping –
• Fumes from a copper smelter disturbed P’s enjoyment of land)
• Court held that what constitutes an action is anything that discomposes or
injuriously affects senses or the nerves in relation to the enjoyment/use of the
property
• E.g. noise, dirt, fumes, noxious smell, vibrations etc, damage to property
• It should not be transient, but continuing
• Locality only relevant in cases of intangible interference not material damage.
3. Give & Take

Balancing interests of parties
Clarey v The principle & Council of the Womens College (1953) –
• The appellants were trying to regain possession of the bord house they had
leased to the university – they claimed that the noisy behaviour of the students
constituted a nuisance.
• The high court (Kitto, Williams, Webb JJ) held that the students had made
considerable noise and disturbed the sleep of P’s but it was incidental to the
running of a boarding house
• the property was being used for its proper purpose and it was reasonable to
expect noise so there was no nuisance.
4.Time & Duration of Activity

McKenzie v. Powley (1916) SALR 1
5.Undue Sensitivity of P.
Robinson v. Klivert (1889)
• P lived upstairs, D lived downstairs, where D frequently used heaters, causing
damage to P’s sensitive paper.
• Court said that they were not doing anything unreasonable.
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• P with “exceptionally delicate trade” cannot complain where ordinary use of
premises would not affect P of ordinary sensibilities.
6. Malice of D.
May make otherwise reasonable interference unreasonable.
Hollywood Silver Fox Farm v. Emmett (1936)
• P & D had considerable land. Gunshots to frighten P’s vixen so it wouldn’t breed
to kill rabbits, when P was tyring to set up a fox farm.
• D acted maliciously so P recovered even tho P’s activity hypersensitive.
Fennell v Robson Excavations (1977)

• causing vibrations to neighbours.
• The creator of the nuisance is liable
De Jager v Payneham & Magill Lodges (1984) 36 SASR

• Occupier may be liable for the acts of a party who resides on the property with
occupiers permission.
• occupier of land from which nuisance emanates thus may also be liable
Hargrave v Goldman(1963)
• an occupier may be held liable where they allow the continuation of a nuisance
from the land even though they may not have created it initially.
Montana Hotels v Fasson P/L

• no awareness so was NOT liable.
Fennel v. Robson Excavations(1977)

• D contractor liable for creating nuisance even though NOT in occupation or
possession of land.
Sedleigh Denfield v. O’Callaghan(1940)

• The owner who adopts and continues nuisance may also be liable
• Local council trespassed in the defendants land and without knowledge of the
defendant they placed a drain to carry rainwater
• the defendants used it to drain water from his farm and put a grate on it to stop
it getting clogged up but it did block up and caused damage to P’s lands.…
• D commits a nuisance if with the knowledge of its existence he fails to take
reasonable means to bring it to an end
• D adapts a nuisance if he makes any use of the thing which constitutes the
nuisance
• an occupier is not prima facie responsible for a nuisance created without his
knowledge or consent…”
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Montana Hotels v. Fasson

• Liability for Continuing or Adopting Nuisance Depends on Fault
Goldman v. Hargrave (P.C)

• In deciding the obligation to stop nuisance D’s resources, physical and financial
relevant
Followed in:
Leaky v. National Trust
• D’s means more than sufficient to carry out necessary remedial work.
Statutory Defence
Managers of the Metropolitan District Asylum v Hill (1881)
• P argued the D’s use of an asylum and hospital caused nuisance because of the
noise due to the number of patients held in it. D argued fact that the
establishment of the asylum was based on authorised statutes
• HL rejected this defence holding that the nuisance was NOT statutorily
authorised since the act didn’t direct that nuisance happen nor did it specify how
many people could live in the asylum.
• Onus is on D to show legislative intentions to take away private rights of
individuals:
• Blackburn L – the weight of argument necessary to demonstrate creation of
nuisance as the inevitable result of the statutory authorisation rests on D”
York Bros trading P/L v The commissioner for main road (1983)
• D was a main road authority who built a bridge with statutory authorisation it
interfered with the flow of water D argued it was authorised.
• Court held that prima facie, it was not the intention of the legislature to
authorise the nuisance.
• D must show that the work was reasonably necessary, that it was properly
performed, and that there was no reasonable way of doing it without creating a
nuisance in light of available scientific knowledge.
• Commissioner lost this case.
Public Nuisance
• Any nuisance that materially affects the reasonable comfort and convenience of
a class of people.
• P may sue in public nuisance only if he/she can establish special damage above
and beyond that suffered by other members of the affected public.
-Affects public at large
Page 124 of 126

Tort Law
-Is a crime
-Action is brought by A-G
-Private individuals do not have standing to sue unless they have suffered
PARTICULAR
DAMAGE over that suffered by the public.
The Public
A-G v. PYA Quarries
• Denning J “I decline to answer how many people…I prefer to look at the reason
of the thing…a public nuisance is…so widespread in its range or so indiscriminate
in its effect that it would not be reasonable to expect one person to take
proceedings…but it should be taken on the responsibility of the community at
large”
Silservice P/L v Supreme Bread P/L –

• queues to buy bread on George St
• Queues do not necessarily provide a basis for an action even where they seem to
obstruct a public access way that affects P.
• However, D may be liable if:
• The crowd is attracted by something done by D which is not bona fide
necessary for the conduct of hi/her business (eg performer attract crowd)
• The facility for the purpose of D’s trade is inadequate or not suitable to
hold or control the crowd
• D could employ some other reasonable means within his control to
minimise or prevent the damage to P.
Statutory Authorisation
Managers of Metropolitan District Asylum v. Hill
York Bros. v. Commissioner for Main Roads(1983)

• It is not every interference however slight that constitutes an actionable
nuisance; the interference must be substantial and material.
Public benefit vs public nuisance.

• In general it is not a defence.
• Where interference to P is not substantial, the public benefit argument may be
used to reinforce the justification to the inconvenience caused to P
• Prima Facie NOT intention of the legislature to authorise nuisance
• D must show that the work was reas. Necessary that it was properly performed
• that there was no reasonable way of doing it without creating a nuisance in light
of available scientific knowledge.
Page 125 of 126

Tort Law
Walsh v. Ervin (1952)

• D ploughs up part of highway, obstructing Ps to the highway, D held liable.
• “not limited to “special damage” ( in the sense of actual pecuniary loss)…may
consist of… “general damage” eg inconvenience and delay…provided that it is
substantial…direct and not consequential AND…appreciably greater in degree
than any suffered by the general public”
Remedies for Private Nuisance

“Abatement” – taking it into your own hands.
Proprietors – strata plan No 14198 v Cowell
• where it was held that D may be required to bear cost if the steps taken by P to
abate were in reasonable mitigation.
• The person who abates shouldn’t bear the costs.
• At common law, whoever abates, bears the costs. However, arguments against
this are that the abator controls costs
Injunction
Damages to compensate for past interference with P’s rights.
Page 126 of 126


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Tort Law

Difference between a tort & a crime

Trespass to the person includes:

Collins v Wilcock (1984)

Cole v Turner (1704)

Wilson v Pringle (1987)

Marions Case (1992)

Innes v Wylie (1884)

Fagan v Metropolitan Police Commissioner (1969)

a. Will negligence suffice or does the action have to be intentional?

Authority that both causes of action can be brought

b. Who Must prove Fault?

Fowler v Lanning (1959)

The HC has different views;

Williams v Milotin (1957)

Canterbury Bankstown RLFC v Rogers (1993)

Henry v Thompson (1989) –

1. Apprehension must be reasonable

Barton v Armstrong (1969)

Zanker v Vartzokas (1988)

3. Words and Threats

Tuberville v Savage (1669)

Police v Greaves (1964) NZ

Rozsa v Samuels (1969)

Sayers v Harlow (1958)

2. Restraint Must Be Total

Burton v Davies (1953) Queensland Supreme Court

Symes v Mahon (1922)

Myer Stores v Soo (1991)

Herring v Boyle (1834) – not law anymore

Merring v Graham White Aviation Co. (1919)

Murray v Ministry of Defence (1988)

Different forms of imprisonment

Cowell v Corrective Services Commissioner of NSW (1988)

Robinson v The Balmain New Ferry Co. Ltd (1906)

Herd v Werdale (1915)

Dickinson v Waters Ltd (1931)

Action on the case for wilful injury

Bird v. Holbrook (1828)

Wilkinson v Downton (1897)

Janvier v Sweeney (1919)

Scope of the Rule

Adams v Motor Vehicle Trust (1957) - broader view

Note: no defence of insanity in torts except where extent not to be willful

Southport v Esso Petroleum (1954)

Scott v Shepherd (1773)

League Against Cruel Sports Ltd v Scott (1986)

Exceeding Implied Licence:

Lincoln Hung Aust P/L v Willesee (1986)

Victoria Racing Co v Taylor (1937)

Bathurst v Saban (no 2) (1986)

Coles Smith v Smith & Ors

Newington v Windeyer (1985)

Police Officers; The Common Law Position

Exceptions to the need for actual or constructive possession

Hutchins v Maughan (1947)

National Coal Board v JE Evans and Co (Cardiff) Ltd (1951)

Jarvis v Williams (1955)

2. must have been a demand made for the goods

Lloyd v Osborne (1899)

Capital Finance v Bray (1964)

Howard Perry v British Railway Board (1980)

Houghland v RR Low Luxury Coaches (1980)