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Chapter 15 The Law of Torts

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 CHAPTER FIFTEEN
THE LAW OF
TORTS
by Harold Luntz,
BA, LLB (Wits), BCL
(Oxon), LLD (Melb),
Professorial Fellow, Law
School, The University of
Melbourne, Barrister &
Solicitor, Supreme Court of
Victoria.

15.1 Introduction .................................................................................... 542

15.2 What is a tort? ................................................................................ 542
15.3 Trespass.......................................................................................... 543
15.4 Negligence ..................................................................................... 545
15.4.1 Duty of care........................................................................ 545
15.4.1.1 Foreseeability ............................................................. 545
15.4.1.2 Proximity and Policy.................................................. 546
15.4.1.3 Settled areas ............................................................... 547
15.4.1.4 Omissions ................................................................... 547
15.4.1.5 Pure economic loss..................................................... 548
15.4.1.6 Statutory authorities ................................................... 551
15.4.2 Breach of Duty ................................................................... 552
15.4.2.1 Standard of care ......................................................... 552
15.4.2.1.1 Reasonable person.................................................. 552
15.4.2.1.2 Response to risk ..................................................... 555
15.4.2.2 Proof of breach ........................................................... 555
15.4.3 Causation............................................................................ 556
15.4.4 Damage .............................................................................. 557
15.4.5 Remoteness ........................................................................ 557
15.4.6 Defences ............................................................................. 557
15.4.6.1 Voluntary assumption of risk ..................................... 558
15.4.6.2 Contributory negligence ............................................. 559
15.5 Damages ......................................................................................... 559
15.6 Vicarious liability........................................................................... 560
15.7 Joint and several liability ............................................................... 561
15.1 INTRODUCTION
The law of torts is one of the main branches of civil obligations.
Others are the law of contract, restitution and equitable obligations. A tort is
a civil obligation because it will ordinarily be enforced by a private
individual who has been harmed by its breach. This is in contrast to the
criminal law, which will normally be enforced by the State. Private
individuals include legal persons, like companies. (Not that the State may
not enforce civil obligations, too, but, if it does so, it does so in a way that is
no different from any private citizen.)
The law of torts makes a person liable to pay damages to another
person whose legally protected interest has been invaded. In some
circumstances, the law of torts may enable a person whose interest is merely
threatened to obtain an injunction to prevent the invasion. Usually, however,
the law of torts is concerned to allocate losses that have already occurred. In
the absence of a contractual agreement between the parties (or some
statutory scheme created by the legislature), it is the law of torts which
determines whether a loss that has been incurred is to lie where it falls or is
to be shifted from the one party to the other or others. The mechanism for
shifting the loss is the payment of damages, a sum of money almost always
intended to compensate the person harmed for the loss sustained.
In rare conditions, the law of torts may also require the person who
has invaded another’s interest to pay additional damages, known as
exemplary or punitive damages. Unlike fines under the criminal law, which
are paid to the State, these additional damages are paid to the person whose
interest has been invaded.

15.2 WHAT IS A TORT?

The simplest description of a tort, which requires much qualification,
is that it is a civil wrong. The reason why one cannot define a tort
satisfactorily is that the term is used to describe a miscellaneous and more or
less unconnected group of civil wrongs. The law which determines who is
liable to whom and for what as a result, say, of a motor accident is the law
of torts, usually the tort of negligence. The tort of defamation determines
when one person, or a media organisation, is liable to pay compensation for
harming another person’s reputation. Another tort, nuisance, will decide
whether a person can stop a neighbour from playing the stereo too loudly.
Still another, conversion, makes the innocent purchaser of stolen goods pay
compensation to the true owner of the goods. These different torts do not
have much in common. And there are many more torts; too numerous to
mention here. Conspiracy is one of a group of torts that have come to play a

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 LAW OF TORTS

role particularly in industrial relations. Another group, of which passing off

is one, are mainly concerned with the protection of business and have been
largely, though not completely, superseded by legislation, including that
governing trade marks, patents and designs.
Each tort has its own set of principles and rules and one cannot
generalise from one tort to the next, except in so far as one can say that a
person who is found to have committed a tort may be ordered to pay
damages to the person against whom the tort was committed.
By far the most important tort today is negligence. In 1932 it was
said that ‘the categories of negligence are never closed’.1 They have
continued to multiply since, though every now and again the appellate
courts, which are responsible for the opening up of new categories, go
through periods of retrenchment. Given its overwhelming importance in the
courts and in settlements, the law of negligence will be the focus of this
chapter. However, to provide a flavour of other torts that might be the
subject of arbitration proceedings, a little will first be said about trespass.
The paper will also concentrate on the common law, though some mention
will be made of statutory modifications to this law. However, it will not
consider statutory remedies of a similar nature, which have acquired
increased significance in recent years, eg Trade Practices Act 1974 (Cth),
s52 and its State counterparts in the Fair Trading Acts.

15.3 TRESPASS
There are three species of trespass: trespass to land, to chattels
(goods) and to the person. This last is in turn subdivided into three: assault,
battery and false imprisonment. However, it is only trespass to land that will
be considered briefly here. This tort is committed by anyone who, without
permission from the person in occupation, enters directly on to another’s
land, either in person or by causing something to intrude into it. Trespass
may be committed on the surface of land or above or below it, though there
is some uncertainty as to how far upwards and downwards this extends.
Whatever the upward limits, there is no doubt that a builder who in the
course of erecting, say, scaffolding causes it to intrude over the boundary of
the neighbouring land, even by a centimetre, commits trespass. It is
irrelevant that the builder may not know that the boundary has been crossed

1 Donoghue v Stevenson [1932] AC 562, 619 per Lord Macmillan.

543
 LUNTZ

or even that the boundary may be wrongly marked, so that it appears to the
builder that the scaffolding is all on the right side of the boundary; if in fact
it crosses the actual boundary, it constitutes a trespass. A court may then
order its removal or compel the builder to pay damages. All that is required
for trespass is that the act of erecting the scaffolding be done intentionally;
there need be no intention to cross the boundary.
There have been several cases2 where developers have been held
liable for trespass where a crane used in the construction of a building has
swung over neighbouring property. There is no doubt of such liability where
the crane-driver has brought the jib over the neighbouring land. It is,
however, doubtful whether there is liability in trespass if the movement has
resulted from the action of the wind, since trespass requires that the invasion
of the plaintiff’s land be ‘direct’. If it be indirect, then the tort of trespass
has not been committed, though it may constitute nuisance. The importance
of the distinction in this context lies in the fact that trespass is actionable per
se (ie the person in possession of the land may sue without proving that any
damage has been sustained in consequence of the trespass), whereas
nuisance does require damage of some sort, at least amounting to
interference with the use and enjoyment of the land.
In some States, but not all, where a building encroaches
unintentionally on another’s land, there is legislation providing for an
adjustment of the interests of the neighbours. However, where the common
law applies, in such circumstances a trespass is committed day by day,
damages may be awarded for each day’s trespass and the plaintiff is entitled
in principle to an order for the removal of the trespassing building. Even
where permission has been given, say, to store building materials or rubble
on a person’s land, if that permission has expired or is withdrawn on
reasonable notice, then to leave the material on the land constitutes a
trespass.
The person who may bring an action in trespass is the person in
actual occupation, who may not necessarily be the owner. Thus a tenant in
possession may sue in trespass, whereas the landlord, who is out of
possession, may not. Even someone who has unlawfully taken possession of
land may maintain an action in trespass against anyone other than the person

2 Eg, Graham v KD Morris & Sons Pty Ltd [1974] Qd R 1; Anchor Brewhouse
Developments v Berkeley House [1987] 2 EGLR 173.

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 LAW OF TORTS

entitled to lawful possession. However, someone who has a licence to be on

the land generally does not have title to sue for trespass; it is the licensor
who would have to bring such an action against a trespasser.

15.4 NEGLIGENCE
The tort of negligence requires the plaintiff to show that —
1. the defendant owed a duty of care to the plaintiff or to a class of persons
of which the plaintiff is a member;
2. the defendant was in breach of that duty of care; and
3. the breach of duty by the defendant caused damage to the plaintiff that
was not too remote.
15.4.1 Duty of care
Mere carelessness on the part of someone, even if it results in harm
to another, does not give rise to an action in negligence. In order to be
legally relevant, the carelessness must be the disregard of a duty to be
careful. Whether or not a duty to be careful exists is a question of law. In
many categories of case, the courts have made determinations that there is
or is not a duty to be careful. If a new category of case, where the law has
not been so settled, comes before the court, there is no current agreement in
the High Court of Australia as to how the matter should be approached. The
most favoured approach is to proceed by way of analogy from existing
categories and to consider whether an incremental advance in the law is
called for.

15.4.1.1 Foreseeability
Before a person can be under a duty of care to the plaintiff, it must
have been reasonably foreseeable that the plaintiff or someone situated like
the plaintiff could be affected by what that person was doing. Until recently,
it was acknowledged that the test had become a very ‘undemanding’ one
that is easily satisfied. In the leading Australian case,3 a driver failed to see
that the car in front of him was slowing down in order to turn. The driver
collided with the car in front and was himself thrown out of his car on to the
road (it was before the days of seat belts). A doctor happened to be passing

3 Chapman v Hearse (1961) 106 CLR 112.

545
 LUNTZ

and stopped to attend to the driver lying on the road. Another car then drove
into the doctor, killing him. It was held that the first driver owed a duty of
care to the doctor: All he needed to foresee was that if he drove carelessly,
an accident might result and that someone might come to the aid of the
victims of that accident at some risk to himself or herself. More recently, the
High Court has emphasised that reasonableness underlies the law of
negligence and that a court should not too readily find that harm was
foreseeable when a reasonable person would not take action against a risk of
that nature.4
A case where it was held that the test of reasonable foreseeability
was not satisfied is one where the wife of an asbestos worker developed
mesothelioma from exposure to small quantities of asbestos when she
washed his clothes and cleaned the car. Although it was reasonably
foreseeable at the relevant time (early 1960s) that exposure of the workers
themselves to large quantities of asbestos in a factory might lead to serious
illness, a majority of the Queensland Court of Appeal upheld a decision of a
trial judge that it was not reasonably foreseeable that someone such as the
wife of a worker might be affected.5 Thus, a duty of care was owed to the
workers in the factory, but not to their spouses at home. On the other hand,
on different evidence given at the trial, a majority of the New South Wales
Court of Appeal held that it was reasonably foreseeable as early as 1959 to
1961 that a child who played on asbestos tailings in the town of Wittenoom
might develop a serious illness later in life.6

15.4.1.2 Proximity and Policy

Notwithstanding that harm to the plaintiff is reasonably foreseeable,
a court may deny that a duty of care was owed because the relationship
between the plaintiff and the defendant is not sufficiently proximate or there
are reasons of policy why no duty of care should be imposed. Examples of
the High Court denying that a duty of care existed include the following.

4 Tame v New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35;
(2002) 191 ALR 449

5 Bale v Seltsam Pty Ltd [1996] QCA 288.

6 CSR Ltd v Young (1998) Aust Torts Reps 81-468.

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 LAW OF TORTS

The Court held that the International Rugby Football Board owed no duty of
care towards adult players of the game to modify the rules so as to reduce a
known risk of injury.7 Earlier, the Court held that advocates in courts of law
owe no legally enforceable duty of care to their clients, so that they are
immune from being sued for negligence in the actual conduct of the
litigation in court and matters intimately connected with the conduct of the
court proceedings.8

15.4.1.3 Settled areas

However, in what have been called ‘the more settled areas of the law
of negligence’, reasonable foreseeability of harm is all that is required to
place the defendant under a duty of care. These ‘settled areas’ usually
involve physical injury to person or property resulting from some positive
act on the part of the defendant. There are some exceptional situations
which, though they involve physical damage by impact as a result of a
positive act, do not give rise to a duty of care. One example from a High
Court case involved joint seriously illegal acts of plaintiff and defendant.9
Such exceptions are rare. Most of the cases that do not place the defendant
under a duty of care to the plaintiff despite reasonable foreseeability of harm
to the plaintiff involve omissions and pure economic loss. I shall say a little
about each of these.

15.4.1.4 Omissions
Many ordinary acts of negligence are committed by omission and no
problem arises with most of these. It is clear, for instance, that in normal
circumstances a driver of a car owes a duty of care to other road users and
that breach of that duty may be committed by such omissions as failing to
keep a proper lookout or failing to apply the brakes. When spelt out fully,
the duty of care in such cases is a duty to take reasonable care not to injure

7 Agar v Hyde (2000) 201 CLR 552.

8 Giannarelli v Wraith (1988) 165 CLR 543. The decision of the House of Lords in
Arthur JS Hall v Simons [2002] 1 AC 615, which abolished barristers’ immunity
from liability in negligence in England, may encourage a challenge to this
position.

9 Gala v Preston (1991) 172 CLR 243.

547
 LUNTZ

other road users by the positive act of driving. The omission to apply the
brakes is just an aspect of the driving. Similarly, at common law an
employer owes a duty of care to employees, which may require to be
fulfilled, for example, by fitting a guard around a machine. Failure to fit the
guard, though an omission, is just a part of the duty of care which stems
from the employment relationship. We need to put such instances aside
when we consider the law which often takes the attitude that there is no duty
of care in relation to ‘mere omissions’.
The classic example is that there is no duty of care on a stranger to
shout a warning to a blind person about to step in front of a bus, or on an
adult to rescue a child who has fallen into a pond. In general, there will be
liability for mere omissions only where a duty can be found to arise from
the undertaking of some task which leads another to rely on its being
performed, or the ownership, occupation or use of land or chattels. In a
leading case, the occupier of land was held to be under a duty of care to
neighbours to make sure that a fire which had started as a result of a
lightning strike in a tree on his property was properly extinguished.10 But
the owner and occupier of a shopping centre was held not to owe a duty of
care to an employee of one of the shops to protect the employee against
being bashed by unknown assailants in the car park at night.11 This was said
to fall outside the scope of the duty of care that the occupier undoubtedly
owed to users of the car park to keep the premises reasonably safe for use.

15.4.1.5 Pure economic loss

Assume that a fire started among rubbish collected in the back yard
of a supermarket. There would be no doubt as a result of the case just
mentioned that the supermarket proprietor would owe a duty of care to
neighbours who could foreseeably be affected if the fire were allowed to
spread. If there were a failure to exercise reasonable care to put the fire out
and it spread, say, to a nearby milk bar, the supermarket would be liable to
the milk bar proprietor for any damage done to the milk bar and loss of
profits consequent on the physical damage. The loss of profits is not pure
economic loss; it is consequential loss and would be taken into account in

10 Goldman v Hargrave [1967] 1 AC 645; 115 CLR 458 (PC).

11 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254.

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 LAW OF TORTS

the calculation of the damages which the milk bar proprietor is entitled to
recover. Yet much more foreseeable than a spreading fire is the fact that
opening the supermarket will cause loss to the milk bar. Nevertheless, there
is no duty of care on the supermarket owners not to price their products
below the prices in the milk bar. This is because the foreseeable loss is
purely economic. One person’s economic gain is another’s economic loss.
In the name of competition, we encourage such gains and the consequent
losses. There must be some exceptional circumstances present to place a
person under a duty of care to avoid causing purely economic loss to
another person.
What those exceptional circumstances are is still the subject of much
debate. The High Court has held that it is not enough to impose a duty of
care on auditors that they can reasonably foresee that persons other than
their clients, like lenders or investors, might rely on the accounts that they
prepare; something more than reasonable foreseeability is required before
they come under a duty of care to such people.12 A duty of care may arise
when the defendant knows or ought to know that the plaintiff is reasonably
relying on information or advice given by the defendant, particularly in
response to an enquiry from the plaintiff, and the defendant provides the
advice without qualification.13 It will usually be required that the defendant
know (or should know) the identity of the plaintiff, not necessarily by name,
but as an individual or as a member of a confined group. Usually, too, the
defendant must have some knowledge of the particular transaction in which
the plaintiff proposes to use the information or advice.14 Alternatively, the
defendant may offer the advice with the intention of inducing the plaintiff to
act on it. The existence of a contract between the plaintiff and defendant

12 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR
241.

13 Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556; L
Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR
225.
.

14 Compare Tepko Pty Ltd v Water Board (2001) 206 CLR 1.

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 LUNTZ

does not preclude liability in tort unless such liability would be inconsistent
with the contractual terms.15
There are a few cases outside the category of negligent misstatement
where the High Court has held that a defendant was under a duty of care to
avoid causing pure economic loss to the plaintiff, but in all of them the
Court was divided either in the outcome or in its reasoning and it is not easy
to draw out any clear principles. I shall mention some briefly.
In the first case in which recovery for pure economic loss resulting
from negligent acts was allowed, a dredge working in Botany Bay severed a
pipeline carrying oil products from the refinery to a storage terminal
belonging to Caltex.16 The pipeline was the property of the refining
company, not of Caltex. While it was being repaired, Caltex incurred
increased transportation costs. It was held that those costs, which were pure
economic loss as far as Caltex was concerned, were recoverable from the
proprietors of the dredge. Those on board the dredge knew of the existence
of the pipeline, which was wrongly marked on its charts, and that it serviced
Caltex’s storage depot, but they failed to take appropriate care to avoid
cutting it.
Two cases involved solicitors and wills. In one a solicitor retained
custody of a will that he had drawn up for a client after the client executed
it. The solicitor was held liable when he failed to exercise care in order to
discover the whereabouts of the executor named in the will after the death of
the testator and the estate suffered losses in the period before the executor
took office.17 More recently, a solicitor was held liable to the intended
beneficiary of a will where the gift to the beneficiary failed to take effect
because of the negligence of the solicitor in seeing to the execution of the
will.18
In the most recent case in which extensive consideration was given
to the issue, the supplier of diseased potato seed to a farm was held liable to

15 Astley v Austrust Ltd (1999) 197 CLR 1.

16 Caltex Oil (Aust) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529.
17 Hawkins v Clayton (1988) 164 CLR 539.

18 Hill v Van Erp (1997) 188 CLR 159.

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 LAW OF TORTS

neighbouring growers and processors whose land and potatoes were not
actually affected, but who were precluded by one State’s regulations from
selling their produce in that State’s lucrative market.19
Finally, in this category is a case where a builder failed to put down
footings for a house that were adequate for the type of soil.20 The house was
subsequently sold by the owner without the defect being discovered. The
inadequacy of the footings led to cracks developing in the walls. It was not
suggested that these were dangerous; they were merely unsightly and clearly
reduced the value of the house. Such loss is considered to be pure economic
loss. It was held that the builder owed a duty of care to the subsequent
purchaser and was liable for its breach. Some later courts have confined this
decision to purchases of domestic dwellings. At the time when this chapter
was prepared the High Court had given leave to appeal against one such
decision.21

15.4.1.6 Statutory authorities

The liability of statutory authorities is another area in which the
question of whether a duty is owed is currently being worked out. Some
years ago, the High Court held that a local council was not liable to
purchasers of a house in its area, which proved to have inadequate
foundations, where it was not established that the purchasers had relied on
the council to exercise its powers of inspection of the foundations.22 The
purchasers had not applied to the council, as they could have done, for a
certificate that the house complied with the plans and statutory
requirements. Later, the Court held a local council liable where it failed to
exercise its powers to ensure that the owners of a property containing a
dangerous fireplace carried out the repairs necessary to make it safe for use

19 Perre v Apand Pty Ltd (1999) 198 CLR 180.

20 Bryan v Maloney (1995) 182 CLR 609; 69 ALJR 375; 128 ALR 163.

21 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (formerly Cardno & Davies
Australia Pty Ltd) [2002] QCA 88; (2002) Aust Torts Reps 81-660, SLG (14
March 2003).

22 Sutherland Shire Council v Heyman (1985) 157 CLR 424.

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 LUNTZ

and a fire ensued.23 This decision was distinguished by the High Court
recently when it held that neither the State of New South Wales nor the local
council in whose area an oyster farm fell owed a duty of care to the ultimate
consumers of the oysters to prevent contamination of the oysters by a
hepatitis virus.24
Until recently, statutory authorities such as local councils charged
with the care, control and maintenance of highways were immune from
liability in negligence if they did nothing to create a danger that injured the
plaintiff. By a narrow majority the High Court overturned this immunity for
what was called ‘non-feasance’ and held that the failure of a highway
authority to eliminate or give warning of dangers on roads, footpaths, etc
under their control is to be judged according to the ordinary principle of
breach of duty.25 It is to that topic that we now turn.
15.4.2 Breach of Duty
Assuming that there is a duty of care, the plaintiff must prove that
there has been a breach of the duty. This requires the plaintiff to show that
the defendant did something that a reasonable person would not have done
or failed to do something that a reasonable person would have done. What
the defendant actually did has to be compared with a standard — said to be
an objective standard — of what ought to have been done.

15.4.2.1 Standard of care

15.4.2.1.1 Reasonable person

The standard by which the defendant’s conduct is measured is that of
the reasonable person. This does not mean the average person in the street.
For instance, empirical studies have shown that most drivers make a mistake
every few minutes. Fortunately, these mistakes seldom result in accidents,

23 Pyrenees Shire Council v Day; Eskimo Amber Pty Ltd v Pyrenees Shire Council
(1998) 192 CLR 330; 72 ALJR 152.

24 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 194 ALR 337.

25 Brodie v Singleton Shire Council (2001) 206 CLR 512. This has been reversed and
the former immunity restored in at least one jurisdiction: see Transport (Highway
Rule) Act 2002 (Vic).

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 LAW OF TORTS

but, if one does, it is likely that a court would find the driver negligent. The
‘reasonable driver’ is thus a paragon of virtue who never makes mistakes.
Nevertheless, in the absence of some fault on the part of the driver there can
be no liability, as where a 21-month-old child suddenly darted in front of a
car travelling at a reasonable speed along a busy road.26
The standard required of a professional person is that of an ordinary
skilled person exercising and professing to have that special skill; it need
not match that of the most highly skilled member of the profession.27 A
general practitioner will be judged by the standard of an ordinary general
practitioner; a specialist obstetrician by the standard of an ordinary specialist
obstetrician. However, a person should be aware of his or her own lack of
competence, so that a general practitioner who attempts a task that requires
a specialist will be negligent in failing to refer the client to a specialist if that
is what the ordinary competent practitioner would have done. At one time
there was a view that a professional person, particularly a medical
practitioner, could not be found to have been negligent if what this person
did conformed to a practice accepted by a responsible body of opinion
within the profession, even if other members of the profession would have
acted otherwise. This view has been rejected by the High Court in relation
to the giving of advice relating to elective surgery and also as to the actual
exercise of skill.28 It is for the court to decide whether something is
negligent or not; not a body of opinion within a profession, however
responsible. Nevertheless, the practice and opinion within a profession is
very influential in determining the court’s judgment and the court will not
lightly find to be negligent a practice adopted by responsible members of a
profession.29 This is especially so where there are two competing views
within a profession, each of which has its genuine adherents who can
support their view with logical arguments. A court is usually not equipped
to decide between these views and will not condemn as negligent a

26 Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301.

27 Voli v Inglewood Shire Council (1963) 11 CLR 74.

28 Rogers v Whitaker (1992) 175 CLR 479; Naxakis v Western General Hospital
(1999) 197 CLR 269.

29 Rosenberg v Percival (2001) 205 CLR 434.

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 LUNTZ

practitioner who follows one of them. This has been reinforced by statutes
in some jurisdictions by a requirement that the court accept as not negligent
conduct of a professional that conformed to widely held peer opinion.30 Nor
will every ‘error of judgment’ amount to negligence; such an error may or
may not be negligent, depending on whether it is the sort of mistake a
competent practitioner might make.
The standard of care may be lowered in special and exceptional
circumstances where the plaintiff knows that the defendant lacks a particular
skill and voluntarily enters into the relationship with the defendant that
gives rise to the duty of care.31 The plaintiff cannot then complain about an
injury sustained as a result of that lack of skill. A driving instructor can
expect from a learner driver only the standard of care of the reasonable
learner driver, whereas people in the street are entitled to expect that every
driver will be fully competent, even if displaying L-plates.
Certain characteristics appertaining to the defendant personally are
taken into account in considering the standard of the reasonable person.
Obvious physical features of the defendant are allowed for. A school teacher
who was no match physically for two fighting final year students was not
expected to separate them by pulling them apart.32 Other aspects of physical
weakness are also allowed for, so that a driver who collapses at the wheel as
a result of an unexpected heart attack is not negligent in running down a
pedestrian. A child is not expected to have the foresight of an adult, but is
judged by the standard of the reasonable child of like age.33 However,
mental qualities and individual characteristics like reaction times are not
taken into account. Nor will the financial and similar resources available be
considered, unless the duty of care was thrust on the defendant without any
choice.

30 Eg, Civil Liability Act 2002 (NSW) s5O.

31 Cook v Cook (1986) 162 CLR 376.

32 Richards v State of Victoria [1969] VR 136.

33 McHale v Watson (1966) 115 CLR 199.

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 LAW OF TORTS

15.4.2.1.2 Response to risk

The standard of care depends on the response of the reasonable
person to a foreseeable risk. For this purpose, a risk is foreseeable even if it
is small, so long as it is not far-fetched or fanciful.34 Not all foreseeable
risks must be eliminated. If a risk is small, a reasonable person might ignore
it, but that depends on several other factors that such a person would take
into account. Among the factors which the courts have identified as
determining the response of the reasonable person to a foreseeable risk are
the probability of the risk occurring; the seriousness of the harm if the risk
does occur; the expense, difficulty and inconvenience of taking alleviating
action; and any other conflicting responsibilities which the defendant may
have. The practicability of suggested precautions must also be
demonstrated. In a case a few years ago, there was a foreseeable risk that
visitors to a place of scenic beauty, who were often there to watch the sun
set, might in the dark fall over the edge of the cliff and be seriously injured.
A majority of the High Court upheld the view of the lower courts that it was
not negligent to fail to erect a fence near the edge of the cliff, even in the
area close to the car park.35 The possible need to fence off the whole of the
cliff face, extending for some two kilometres, brought aesthetic factors as
well as practicability into play.

15.4.2.2 Proof of breach

The plaintiff must prove on a balance of probabilities – not beyond
reasonable doubt – that the defendant was in breach of the duty of care.
Sometimes the plaintiff will have direct evidence of this, but circumstantial
evidence may also suffice. That is, the plaintiff may ask the court to accept
that breach has been proved by a process of inference. The inference that the
defendant was negligent need not be the only inference that could be drawn,
but it must be more probable than any other inference and must be more
than mere conjecture.36 Where in the ordinary course of events, an accident
would not happen without negligence on the part of the defendant or those

34 Wyong Shire Council v Shirt (1980) 146 CLR 40; compare Tame v New South
Wales [2002] HCA 35; (2002) 191 ALR 449. Recent legislation has again sought
to make this test more demanding: eg, Civil Liability Act 2002 (NSW) s5B.

35 Romeo v Conservation Commission of the Northern Territory (1998) 92 CLR 431.

36 Holloway v McFeeters (1956) 94 CLR 470.

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for whom the defendant is responsible and the defendant offers no

explanation consistent with the absence of such negligence, the plaintiff
may rely on the process of inferential reasoning known as res ipsa loquitur
(the event speaks for itself).37 This enables, but does not compel, the court
to find that negligence on the part of the defendant has been proved. A
plaintiff who has sought, but failed, to prove how the accident happened
may still fall back on res ipsa loquitur.38 The maxim is inapplicable where
the happening of the event points to possible negligence on the part of more
than one person and the particular defendant is not responsible for all of
them.
15.4.3 Causation
The defendant’s breach of duty must be shown to have caused the
harm of which the plaintiff is complaining. A useful test for eliminating
matters which are not causes is the ‘but-for’ test: would the harm probably
have occurred but for the defendant’s negligence?39 If it would probably
have occurred anyway, then (in all except very rare instances of what is
called ‘multiple sufficient causation’) the defendant’s negligence cannot be
a cause. On the other hand, the defendant’s negligence is not a cause for
legal purposes merely because the harm would not have occurred without it.
The courts say one must use common sense to determine whether something
is to be treated as a cause in law, but this ‘common sense’ is tempered by
value judgments.
We are not necessarily looking for a single cause; there will always
be many causes of a single event. Our concern is to answer the question
whether the proved breach of the defendant’s duty of care is to be treated in
law as a cause even though there may be other relevant causes. Once the
defendant’s negligence satisfies the but-for test, so that we can say that the
harm probably would not have occurred without it, we generally look to see
whether there is some later event, without which the harm also would not
have occurred, which we can regard as severing the causal connection
between the defendant’s negligence and the plaintiff’s harm. Such might
occur where some third person deliberately exploits the situation to which

37 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121.

38 Anchor Products Ltd v Hedges (1966) 115 CLR 493.

39 See March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.

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the defendant’s negligence has exposed the plaintiff. It might also occur as
the result of some coincidence, such as where the defendant’s negligence
has resulted in the plaintiff being in a particular place at a particular time,
but has not made it any more likely that the harm would occur at that place.
If there is no such novus actus interveniens (new intervening cause), then
the defendant’s breach will usually be treated as a relevant cause of the
harm.
15.4.4 Damage
Unlike trespass, negligence is not actionable without proof of damage. Only
certain things qualify as damage. Actual physical damage to person or
property obviously does, unless it is minimal. So does pure economic loss
where there is a duty of care to avoid causing it. But shock, horror, fear,
anxiety, grief, worry and bereavement alone are not sufficient to constitute
damage, unless they result in a recognisable psychiatric illness in
circumstances where there is a duty to take care to avoid causing such
illness.40 Many of these things which do not qualify as damage on their own
may still attract damages if they are consequential on other forms of injury
that do qualify. Thus negligently to cause someone inconvenience alone is
not actionable, but if one causes damage to a person’s home that in turn
results in inconvenience or uncomfortable living for a time, the damages
may make allowance for the inconvenience and discomfort.
15.4.5 Remoteness
Even damage of a kind that is compensable may be excluded if it is deemed
to be too remote. The test for remoteness of damage is again reasonable
foreseeability, though this time it is whether damage of the kind, class or
character that actually occurred was reasonably foreseeable. In the leading
case it was held that damage caused by an unforeseeable fire resulting from
negligent oil pollution was too remote to be recoverable.41 But if fire is
foreseeable, it does not matter that the damage it caused may perhaps have
been more extensive than was foreseeable; the defendant is liable to the
plaintiff for all the fire damage in such a case.
15.4.6 Defences

40 Tame v New South Wales [2002] HCA 35; (2002) 191 ALR 449.

41 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon
Mound No. 1) [1961] AC 388 (PC).

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Whereas the plaintiff bears the burden of proving that the defendant, in
breach of a duty of care, caused damage that was not too remote, the
defendant bears the burden of proving either of the two main defences,
voluntary assumption of risk and contributory negligence. Again, such proof
need be only on the balance of probabilities.

15.4.6.1 Voluntary assumption of risk

In order to establish this defence the defendant must show that the
plaintiff had actual knowledge of the facts which led to a particular risk
occurring, appreciated that those facts did constitute a risk, and freely and
voluntarily chose to encounter it.42 Unlike the standard of care in
negligence, the test here is entirely subjective: it is not enough that the
plaintiff ought to have known of the facts or ought to have appreciated the
risk; there must be actual knowledge of the facts and actual appreciation of
the risk on the part of the plaintiff. Furthermore, even if these conditions are
present, the plaintiff must not have been subject to any constraint in
incurring the risk, such as the need to do so in order to retain a job. Even if
the plaintiff knew, appreciated and voluntarily incurred a particular risk, but
a different risk materialised, the defence would not apply.
Given the stringency of these conditions, the defence is not often
successful. However, sometimes an analogous defence does succeed. This is
where the defendant brings to the attention of the plaintiff a notice or
conditions of a contract that in clear terms exempt the defendant from
liability. The plaintiff need not actually have read the notice or terms of the
contract, provided they were sufficiently brought to his or her attention and
the relationship with the defendant was entered into without any
constraint.43 But the notice or contractual term must unambiguously
exonerate the defendant from liability in the circumstances that occurred.
The courts tend to read such exemptions narrowly.44

42 Roggenkamp v Bennett (1950) 80 CLR 292.

43 Compare Macleay Pty Ltd v Moore [1992] Aust Torts Reps 81-151 (Vic AD)
(notices not sufficiently brought to plaintiff’s attention).

44 Eg, Bright v Sampson & Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346 (CA).

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15.4.6.2 Contributory negligence

Contributory negligence, which at common law was a complete
defence, is as a result of legislation only a partial defence. If it is found to
have occurred, the result is that the damages are reduced to such extent as is
just and equitable having regard to the claimant’s share in the responsibility
for the damage.
Contributory negligence is found where a plaintiff fails to take
reasonable care for his or her own protection or that of his or her property
and such failure contributes to the loss of which the plaintiff is complaining.
As with the negligence of the defendant, the standard of care required is an
objective one. Thus the plaintiff is expected to display such care for his or
her own safety as a reasonable person would. Again, a balancing of the
magnitude of a risk against the end to be achieved may have to be
undertaken by the tribunal.
Although the legislation provides only for a reduction of damages, in
practice what occurs is an apportionment of the loss between the plaintiff
and the defendant. This requires a comparison both of blameworthiness —
in the sense of how far each party departed from the standard of care
appropriate to that party — and of the causal contribution of each party to
the loss.45 Although the High Court held that at common law the defence of
contributory negligence was not available when the plaintiff was able to
formulate the claim as one for breach of a contractual duty to exercise
reasonable care,46 legislation has now provided that the apportionment
legislation applies in this context, too.47

15.5 DAMAGES
The usual remedy awarded by a court for a tort is damages, ie
monetary compensation. The aim of the award is to restore the position the
plaintiff would have been in if the tort had not been committed. If, for
instance, the tort of deceit is committed by fraudulently inducing the

45 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529.

46 Astley v Austrust Ltd (1999) 197 CLR 1.

47 Eg, Wrongs Act 1958 (Vic) Pt V, as amended by Wrongs (Amendment) Act 2000
(Vic).

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 LUNTZ

plaintiff to enter into a contract to buy a business with false representations

as to its turnover, the damages aim to restore the position as if no contract
had been made. A plaintiff who wishes to recover as damages the profits
that would have been made if the representations had been true must sue in
contract. Of course, a plaintiff bringing an action in the tort of deceit may
try to show that if this contract had not been made, there would have been
another available with similar profits, but that is not easy to establish.
At common law, the assessment of damages is made once and for all
at the time of the trial and the amount assessed must be awarded as a lump
sum. All loss, past, present and future, must be taken into account.
Legislative exceptions to this rule are very rare. In so far as the loss is
hypothetical or lies in the future, the amount allowed must be fixed by
valuing the chance that it would have occurred but for the defendant’s
wrong or will still occur in the future.
15.6 VICARIOUS LIABILITY
A very important aspect of liability in tort is that not only the actual
perpetrator of the tort may be sued, but also certain other persons who are
vicariously liable for the acts of the actual tortfeasor (ie the one who
commits the wrong). Members of a partnership are vicariously liable for any
torts committed by their partners in the course of the business of the
partnership;48 employers are similarly liable for torts committed by their
employees in the course of their employment.49 It is sometimes difficult to
determine whether a wrong committed by an employee was in the course (or
within the scope) of the employment, but courts generally here approach the
issue broadly. Even criminal acts done for the employee’s own benefit may
in some cases fall within the scope of the employment and so render the
employer liable.50 However, if the employee abandons the employment and
goes on a ‘frolic of his own’, the employer is not liable for torts committed
during such frolic.51

48 Eg, Partnership Act 1892 (NSW) ss10 and 12.

49 Hollis v Vabu Pty Ltd (2001) 207 CLR 21.

50 Lloyd v Grace, Smith & Co [1912] AC 716.

51 New South Wales v Lepore [2003] HCA 4; (2003) 195 ALR 412.

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In general there is no vicarious liability for independent contractors

or persons who merely perform a task at the request of the defendant.52
However, there are numerous exceptions to this rule.53
15.7 JOINT AND SEVERAL LIABILITY
Where more than one person contributes to the commission of a tort,
the individuals are jointly and severally liable, ie each can be sued alone or
together with the others who committed the tort. Each may be held liable for
the full amount of the damage, though there were others whose torts were
also causes of the loss. The plaintiff cannot recover more than the actual
amount of the loss by suing more than one, but if one is called on to pay the
damages, that one may seek contribution from any other who also caused
the same damage. The amount of contribution recoverable is such amount as
is found to be just and equitable having regard to the responsibility of each
for the damage.
The law of joint and several liability has been criticised in some
quarters for encouraging plaintiffs to seek out the ‘deepest pocket’ or, at
least, the most fully insured. In some jurisdictions it has been abolished in
relation to building disputes54 and some States are in the course of
introducing proportionate liability in place of joint and several liability for
all cases other than personal injury.55
Further Reading:
Balkin RP & Davis JLR Law of Torts 2nd ed (Sydney: Butterworths, 1996)
Fleming JG The Law of Torts 9th ed (Sydney: LBC Information Services,
1998).
Luntz H & Hambly D Torts: Cases and Commentary 5th ed (Sydney:
Butterworths, 2002).

52 Scott v Davis (2000) 204 CLR 333.

53 Kondis v State Transport Authority (1984) 154 CLR 672.

54 Eg, Building Act 1993 (Vic) s131.

55 : see, eg, Civil Liability Act 2002 (NSW) Pt 5 (not yet in force at time this chapter
was prepared).

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Trindade FA & Cane P The Law of Torts in Australia 3rd ed (South

Melbourne: Oxford University Press, 1999).

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