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Nick Dowse Case Summaries

Case Summaries

Case Name Facts / Authority for...


Annetts v Australian Stations Same as Tame v NSW.
Ball v Consolidated Rutile The economic loss suffered by the plaintiffs was foreseeable
by the defendant. But it could not be said that the defendant
possessed the requisite knowledge of the fishermen to
establish the element of proximity between itself and them
and thus impose upon the defendant the duty to avoid
economic loss to the plaintiffs by taking reasonable care in
the construction of the sand dune to avoid slippage.
Bjelke-Peterson v Burns & Held, that in order to support a defence of fair comment
ABC under Defamation Act, the mere fact that there had been
communications to the public by third parties respecting the
plaintiffs did not entitle the defendant to comment on those
communications and claim the protection of the section.
Bjelke-Peterson v Warburton he plaintiff, who was the Premier of Queensland, sued the
Leader of the Opposition for damages for defamation. The
words complained of were "just as the tide turned against the
dictator Marcos so too can Bjelke-Petersen and his corrupt
Government be swept from office". The statement of claim
alleged that those words in their ordinary and natural
meaning meant, and were understood to mean, that the
plaintiff was corrupt. The defendant demurred on the ground
that the words complained of contained no imputation of
corruption against the plaintiff. In a separate action all
members of the Queensland Cabinet sued the Deputy
Leader of the Opposition for damages for defamation. The
words complained of were contained in a statement made to
the media and which contained reference to "this
Government's corruption" and the words "which Ministers
have their hands in the till". The defendant demurred upon
the ground that the class of persons of whom the words were
spoken was uncertain so that no one of the plaintiffs could
fairly contend that the words were directed at him or her
personally. The demurrers in the two actions were heard
together. Held, overruling the demurrers:

(1) The words said to have been used by the Leader of the
Opposition were capable of bearing a meaning defamatory of
the plaintiff as the view could reasonably have been taken
that he was one of those who was corrupt, particularly
because of the reference to "the dictator Marcos" whose
name had become a byword for corruption.
(2) The words said to have been used by the Deputy Leader
of the Opposition were capable of bearing a meaning which
was defamatory of any of the plaintiffs as they could have
referred at least to the Ministers of the Government, and to
say that some members of a narrow class were guilty of
misconduct, without saying which, was to cast a slur on all of
them.
Bryan v Maloney where the building contract was not detailed and contained
no exclusion or limitation of liability, the relationship of
proximity arose by virtue of the contract and the work to be
performed under it. That relationship of proximity extended to

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Nick Dowse Case Summaries

economic loss by the client or subsequent purchasers of the


house when the inadequacy of the footings became obvious.
Burnie Port Authority Novel duties non-delegable duty factors include – control of
D, vulnerability of the P, dangerous activity, policy factor
Byrne v Deane (i) it is not defamatory to say of a man he has informed the
police of a crime; (per Slesser and Greene LJJ) the words in
the present case were not defamatory; (per Greer LJ) the
words were defamatory, because they meant something
more than the mere fact that the police had been informed of
a crime. They meant that the plaintiff had been guilty of
disloyalty to fellow-members of his club.

It is clear that it is not defamatory to say of a man that he has


informed the police of a crime. In this respect it matters not
whether the crime be a serious one or one which some think
ought not to be a criminal offence at all. The difference
between the Lords Justices in the present case is only upon
the meaning to be ascribed to the words used. Upon the
publication question it would seem that it is the duty of the
occupier of premises to remove any defamatory matter
placed thereon by third persons, provided that it is readily
removable. If the defamatory matter is in a permanent form,
and can only be removed at great inconvenience and
expense, its non-removal does not amount to publication.
Caltex Oil v Willemstad Although as a general rule damages are not recoverable for
economic loss which is not consequential upon injury to
person or property, even if the loss is foreseeable, damages
are recoverable in a case in which the defendant has
knowledge or the means of knowledge that a particular
person, not merely as a member of an unascertained class,
will be likely to suffer economic loss as a consequence of his
negligence.
Christopher v Fiji Gas Proximity as a test is the relevant criterion by which a duty to
avoid economic loss is to be ascertained. The loss of the
crew was not economic loss from their use of the vessel as
such but their loss of wages from the owners of the Antonia
which they had a capacity to earn while employed on board
discharging the function of a crew member engaged in
fishing activity. Finally there was no reliance on the part of
the crew nor acceptance of responsibility on the part of the
master or defendant owner, for the latter to take care to avoid
or prevent economic loss or damage to the crew.
DIS&L v Long Duty under statute must be cast squarely on the defendant
not the actual person in control or some other person.
Esanda v PWH In pure economic loss, what is required is an allegation and
proof that the defendant knew or ought reasonably to have
known that the information or advice would be communicated
to the plaintiff for a purpose likely to lead the plaintiff to enter
into a transaction of the kind entered into, such entry being
likely to be due to reliance on the information or advice.
Fortuna Seafoods P & D were closely related by company so therefore could be
members of an ascertainable class.
Gifford v Strang Patrick Father killed. Children applicants.
Stevedoring CL psychiatric injury does not need to be perceived or in
direct aftermath. Relationships of P, D & V may give rise to

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reasonable foreseeability of harm.


Graham Barclay Oysters v Lists factors court will consider in a novel duty with a PA:
Ryan degree and nature of control of P, the vulnerability of the D,
consistency b/w duty of care and the terms, scope and
purpose of statutes creating the public authority. For a PA,
the co-existence of knowledge of a risk of harm and power to
avert or minimise that harm, does not, without more, give rise
to a duty of care at common law. The totality of the
relationship between the parties, not merely the foresight and
capacity to act on the part of one of them, is the proper basis
upon which a duty of care may be recognised.
Griffiths v Kerkemeyer A person who was permanently disabled as the result of the
negligent act of another was awarded damages which
included a sum representing the value of services rendered
and to be provided for him by his fiancee and members of his
family. The services had been provided for him gratuitously.
Held:

(1) The sum in question was recoverable as damages even


though the plaintiff was under no legal liability to pay for the
services; by Stephen and Mason JJ, because the plaintiff's
loss was not the legal liability to pay for the services but the
loss of capacity which occasioned the need for them, and by
Gibbs J, because as a general rule the value of necessary
services provided gratuitously for an incapacitated person by
a relative or friend does not reduce the damages recoverable
for negligence causing the incapacity.
(2) The value of such services in general should be
calculated by reference to their standard or market cost, and
not by the loss suffered by the person who provides them.
Hargrave v Goldman Defines private nuisance as “an unlawful interference with a
person's use or enjoyment of land, or of some right over or in
connection with it.
Harriton v Stephens Claims for wrongful life are not actionable in Australia. For a
claim in negligence to succeed the damage would be a
retarded life and this is repugnant to morality.
Hedley Byrne v Heller A negligent, though honest, misrepresentation, spoken or
written, may give rise to an action for damages for financial
loss caused thereby, apart from any contract or fiduciary
relationship, since the law will imply a duty of care when a
party seeking information from a party possessed of a
special skill trusts him to exercise due care, and that party
knew or ought to have known that reliance was being placed
on his skill and judgment. If there is a disclaimer, it will not be
implied.
Hill v Van Erp (1) The solicitor owed a duty of care to the intended
beneficiary which rendered her liable in negligence.
(2) Where a plaintiff sues in negligence to recover pure
economic loss, she must establish more than foreseeability
of loss.
(3) The solicitor's duty to the client cannot be tempered by
the existence of a duty to any third person whose interests in
the transaction are not coincident with the interests of the
client. However, the interests of a client who retains a
solicitor to carry out testamentary instructions and the
interests of an intended beneficiary are coincident.
(4) A case of this kind did not create a precedent for claims

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of indeterminate liability for economic loss, as the claimant


was identifiable and the claim was strictly limited to the
consequences of the solicitor's failure to carry out work which
she was contractually bound to perform.
Hollis v Vabu (1) (by Gleeson CJ, Gaudron, Gummow, Kirby and Hayne
JJ) In general, an enterprise is liable for the cost of injury to a
third party if the tortious conduct of a person representing
that enterprise may fairly be said to be characteristic of that
enterprise.
(2) The classic "control" test is not conclusive of the nature of
an employment relationship. "Control" is only one relevant
factor in determining the nature of an employment
relationship. Other matters that are expressive of the
fundamental concerns underlying the doctrine of vicarious
liability are also relevant.
(3) In the present case, the considerations regarding
economic independence and freedom of contract were not
determinative of the nature of the relationship between the
bicycle couriers and the respondent. The Court of Appeal
erred in putting too much weight on the circumstances that
the bicycle couriers owned their own bicycles, bore the
expenses of running them and supplied many of their own
accessories.
(4) The relationship between the respondent and the bicycle
courier was that of employer and employee. Therefore, the
respondent was vicariously liable for the negligence of the
bicycle courier.
Hollywood Silver Fox Farm v Defendant's motive or malice will be taken into account when
Emmett deciding if the interference is unreasonable.
Hunter v Canary Wharf No right to TV reception.
Koehler v Cerebos Ltd A reasonable person in the position of the employer would
not have foreseen the risk of psychiatric injury to the
employee. Not only look at reasonable foreseeability when
assessing negligence claims.
Kondis v State Transport During the manual extension of the jib of a crane, which was
Authority operated by the independent contractor of an employer, part
of the crane fell on an employee. The contractor had
deliberately dropped the part and was found to have failed to
keep a proper look out or to have warned of his intention to
drop the part. The employee's foreman had not instructed
him not to stand under the jib during the extension operation.
Held, that the employer was in breach of his duty to provide a
safe system of work, by Mason, Brennan, Deane and
Dawson JJ, on the ground that the foreman had failed to
direct the employee not to stand under the jib of the crane
during the extension operation; and by Mason, Brennan,
Deane and Murphy JJ, on the ground, that the contractor's
failure to adopt a safe system of work constituted a failure by
the employer to satisfy a non-delegable duty to provide a
safe system.
Krakowski v Eurolynx Test is on the balance of probabilities and not higher for
fraudulent misrepresentation. The sense in which a
representation is understood by the representee is relevant
to the question whether the representation induced the
representee to act upon it. The sense in which the
representor intended the representation to be understood is
relevant to the question whether the representation was

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Nick Dowse Case Summaries

made fraudulently.
Kriz v King The Civil Liability Act 2003 Qld, s 59(1)(c) , should be
interpreted in the way which least diminishes a claimant's
common law rights to damages for gratuitous services.
Giving the words their ordinary meaning, s 59(1)(c) has the
effect that damages for gratuitous services are not to be
awarded unless the services have been provided, or are to
be provided, for both six hours per week and for at least six
months: once that threshold is met, damages for gratuitous
services can be awarded even if the services thereafter are
provided, or are to be provided, for less than six hours per
week.
Leichhardt MC v Montgomery Court should exercise caution when extending non-delegable
duty categories.
Lepore v NSW The deliberate physical or sexual abuse of a student is so far
removed from the standard duties of teachers that school
authorities cannot reasonably be held to be vicariously liable
for such actions. Such assaults are a predatory abuse of the
teacher's authority in deliberate breach of a core element of
the contract of employment.
Lisle v Brice
Magill v Magill At least one necessary integer of deceit was not made out.
The Court of Appeal had correctly held that it was not
reliance on the falsehoods proven that induced the husband
to act to his detriment. The husband's belief in that he was
the father owed more to an absence of disclosure to the
contrary than to the evidenced misrepresentations, but
silence does not sound in deceit and no other basis exists for
imposing a duty of disclosure as to paternity on a party to a
marriage. This state of affairs instanced the inherent difficulty
of establishing deceit as to paternity.
Malec v Hutton In assessing damages where questions arise as to the future
or hypothetical effect of physical injury or degeneration, the
degree of probability of the occurrence of associated future
or hypothetical events will be evaluated by the court (except
in the extreme cases of mere speculation or of practical
certainty). Where proof is necessarily unattainable, the court
assesses the degree of probability that an event would have
occurred, or might occur, and adjusts its award of damages
to reflect the degree of probability, leading to an increase in
or decrease of the amount of damages otherwise to be
awarded.
MLC v Evatt It is not necessary for a D to actually possess a skill in the
giving of information just that they hold themselves out to
possess the information. Needs to be a serious business
situation.
Mulligan v Coffs Harbour CC No duty to erect signs when there is obvious swimming
danger. The appellant failed to prove that it was
unreasonable for the respondents not to erect a sign warning
of a risk that is generally present to the mind of swimmers.
Nothing in the present case suggested that the respondents
were dealing with a situation presenting dangers that were
different from those confronting any swimmer who dives
forward in a creek or river. (Per McHugh J)
Munro v Southern District One night's sleep can amount to a substantial private

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Dairies nuisance. Doesn't matter how long they have been


committing the wrong or whether the P has come to the
nuisance.
Nguyen v Nguyen Damages for loss of domestic services need not be used for
that purpose if awarded.
O'Shaugnessy v Mirror Fair comment is a question of fact for the jury.
Newspapers
Perre v Apand Duty owed by neighbouring potato growers not to inflict
economic loss. Where a person knows or ought to know that
his or her acts or omissions may cause the loss or
impairment of legal rights possessed, enjoyed or exercised
by another, whether as an individual or as a member of a
class, and that that latter person is in no position to protect
his or her own interests, there is a relationship such that the
law should impose a duty of care on the former to take
reasonable steps to avoid a foreseeable risk of economic
loss resulting from the loss or impairment of those rights.
Reader's Digest v Lamb Hypothetical referee test.
Rich v QLD The deliberate physical or sexual abuse of a student is so far
removed from the standard duties of teachers that school
authorities cannot reasonably be held to be vicariously liable
for such actions. Such assaults are a predatory abuse of the
teacher's authority in deliberate breach of a core element of
the contract of employment.
San Sebastian The general interest of an Australian local authority in
encouraging the development of its area is not enough to
support the existence of a duty of care on the part of the
authority in relation to statements made in development
plans so as to make the authority liable for negligent
misstatement. The notion of proximity is of vital importance in
a claim for pure economic loss.
Shaddock v Parramatta Inquired about road-widening and was told by the council
that there were no plans. There were in fact plans and the P
suffered damage. Held that council owed a duty.
Sinclair v Bjelke-Peterson In determining whether the appellant was actuated by any ill
will towards the respondent or by any improper or wrong
motive not connected with the privilege of the occasion, one
should look at the occasion of publication from a broad and
realistic point of view. There was no evidence which would
establish malice or an improper motive on the part of the
appellant; the language itself was not grossly exaggerated or
excessive and in the circumstances the answer was fairly or
broadly responsive to the question asked. One cannot infer
malice from the fact that the words were spoken by a
politician about a person with opposing political views or from
that the appellant and the respondent held different political
philosophies.
Skelton v Collins For loss of expectation of life a moderate amount only may
be awarded.

A plaintiff who was rendered permanently unconscious by an


accident can recover nothing for pain and suffering.
Sullivan v Moody Suspected of sexually abusing children. No duty owed by
state because it would cut across statutory protections for
children and because reasonable foreseeability is not

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enough.
Tame v NSW “Normal fortitude” is not necessarily required but should not
detract from the central question of reasonable foreseeability.
Tepko v Water Board To attract a duty of care in the case of negligent
misstatement giving rise to economic loss, first, there must
be known reliance and/or an assumption of responsibility on
the part of the representor. Second, the circumstances must
be such that it is reasonable for the recipient to accept and
rely on the statement.

Statement maker must know it would be used for a serious


purpose.

Actionable even if information volunteered.


Tucker v McCann Breach of statutory duty is evidence of negligence not
conclusive.
Vairy v Wyong SC A reasonable response to the rock platform did not require
the erection of a warning sign or a prohibition from diving. To
mark out the platform as especially dangerous, and
especially worthy of warning, was neither reasonably
necessary nor appropriate. Further, neither the frequency
with which people used the rock platform as a launching pad,
nor its evident suitability for that use, sufficiently
distinguished the place from others where there was a risk of
spinal injury if a person dived or plunged into water that was
too shallow (per Hayne & Gummow)
Waller v James Claims for wrongful life are not actionable (as per Harriton v
Stephens).
Waugh v Kippen The defendant must actually be in breach of the statute.
Woolcock St Investments v Rule in Bryan v Maloney not available in commercial convext
CDG because they are better able to protect themselves.
Wynn v NSW Insurance (1) Far from the likelihood that the appellant might not
continue in employment, the evidence clearly supported the
trial judge's inference that the appellant had "a real
possibility" of promotion. Once that inference was drawn, the
prospect of advancement had to be taken into account and
balanced against any possible need to take maternity leave.
The trial judge had, to that extent, appropriately fixed a
discount of 5%, but he had failed to consider the question
whether the appellant's original and aggravated injury would
have affected her continued employment to retirement age.
As the undisputed evidence established the possibility of
degenerative change resulting in reduced earnings or early
retirement it was appropriate that the discount figure
(including the possibility of maternity leave) be 12½%.
Observations on contingencies or "vicissitudes".
(2) Outgoings which are deducted for the purpose of
calculating economic loss are those necessarily incurred in
or in connexion with the employment or undertaking by which
earning capacity is realised. There is no basis for treating
domestic help as necessary for the realisation of earning
capacity, indeed the two have no relevant connection. It
follows that the cost of child care (one of the various costs of
having children) is essentially private or domestic in
character and no more to be deducted when calculating loss
of earning capacity than are other items of expenditure for

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personal amenity.
Youssoupoff v MGM It is sufficient that a reasonably wide class of persons know
of the facts that make the matter referable to the plaintiff.
Zunter v John Fairfax Qualified privilege. Contextual truth.

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