Week 1.

Causation and Damages

3. Causation

Causation in fact requires that once the plaintiff has demonstrated that the defendant was
negligent, they must further demonstrate that the negligence caused the P ’s injury.
Causation in law looks at the remoteness of damage.

The ‘But For’ Test

This involves determining whether the injuries would have been suffered but for the
defendant’s negligence.

Barnett v Chelsea & Kensington Hospital Management Committee (1969) 1 QB 428

The P’s husband fell ill after drinking some tea, and went to casualty to find that there
was only a nurse, as the doctor had gone home. The nurse called the doctor, who told him
to go home & see his doctor. The husband died five hours later from arsenic poisoning as
there had been arsenic in the tea. The P sued the hospital and the doctor, claiming that
their negligence caused her husband’s death. The Court held that the doctor was negligent
in not coming into the hospital, but, the doctor’s negligene hadn’t caused the P’s husband ’s
death, and thus, he was not liable. Evidence was adduced that even if he had attended, he
would only have been able to give an intravenous drip four hours later. Expert evidence
suggested that his chances weren’t good. The Plaintiff had failed to establish that her
husband’s death resulted from D’s negligence, on the BofP. If the P would have been
injured even if the D hadn’t been negligent, then D ’s negligent did not cause the death in
legal terms.

March v Stramare (1991) 171 CLR 448 The defendant had parked his truck in the
middle of the road, with his hazard and rear lights on. The plaintiff, as he was drunk,
drove into the back of the truck. He sued for negligence. It was found that the defendant
was not liable on appeal to the Full Court. On appeal to the HC, the trial judge ’s decision
was restored. The HC commented on the limitations of the ‘but for’ test where there are
multiple causes. They held that:

(i)     the ‘but for’ test has limited used

(ii)   it cannot be an exclusive criterion for causation.

(iii) It must be tempered by value judgements and policy considerations.

(iv) Common sense must be looked at too.

SRA of NSW v Wiegold (1991) 25 NSWLR 500 The plaintiff was employed by the D
and was injured when he fell down a railway embankment at night. He was no longer
able to work after the accident, and was provided with worker ’s comp. He grew Indian
hemp to provide sufficient money by selling marijuana. He was arrested, convicted and
imprisoned. He sued the defendant. The question was whether he would have been
imprisoned but for the D’s negligent. The trial judge held that the defendant was
negligent. They held that the ‘but for’ test was singularly inappropriate.

Chappel v Hart (1998) 156 ALR 517 The plaintiff’s oesophagus was injured during
surgery without negligence. This damaged her vocal cords and she partially lost her
voice. She sued the doctor for negligence in not letting her know of the risk. She argued
that had she known, she would have put off the surgery, and hired the best surgeon
possible. The Court discussed the ‘but for’ test with regard to determining whether the
plaintiff would have not had the surgery. In some circumstances the ‘but for’ test doesn ’t
work. For example, if it had been that the anaesthetic had gone wrong, where even if she
knew of the risks of the perforation, and had put the operation back, she would still be
injured. However, as the damage was due to the perforation, she was successful.

Increased Risk

M’Ghee v National Coal Board (1972) 3 All ER 1008 The plaintiff was employed to
clean up brick film. He sued the National Coal Board for their negligence in failing to
provide showers to wash the dust off, which caused severe dermatitis. The evidence
could not demonstrate that it was more probable than not that the failure to provide
showers caused the dermatitis. However, it showed an increased risk. The HofL found the
employers liable. Wilberforce LJ held that whilst logically if there was only an increased
risk, then this is not the cause of the injury. However, it was held that on policy grounds,
that an increased risk satisfies the requirement of causation. It was held that where a
breach of a duty creates a risk, and there is a disease, then the party creating the risk
should be held liable.

Wilsher v Essex Area Health Authority (1988) AG 1974 M’Ghee was severely criticised
in Wilsher v Essex as the law requires proof of fault. Demonstrating an increased risk
doesn’t satisfy the evidentiary burden to show that the D’s actions cause the P ’s injury.
They suggested in M’Ghee had succeeded as both risk factors were provided by the D. In
the current fact situation, there was an innocent contributing factor, and the defendant ’s
contributing factor, and the P failed, as they could only demonstrate increased risk, not
that the D had caused the injury.

M’Ghee discussed a “material increase of risk.” This was criticised in Wilsher v Essex as
“the law requires proof of fault causing damage.”
Bennett v Minister for Community Welfare (1992) 176 CLR 408 The plaintiff was a
ward of the state who was injured when trained in a detention center run by the D. The D
acknowledged that P, as a ward of the state was entitled to independent legal rights and
advice. They had been negligent in providing this to him. In 1976, when he was no longer
a ward of the state, the P got his own independent advice, and was advised that he could
not recover for his injury (negligently). 1979, after getting further advice, he sued the
defendant for the loss of a right to sue, as his original action had become statute barred.
The Minister admitted the negligence, but argued that the negligence was a novus actus
interveniens, and so, there was no causal connection between the negligence and the
damage. However, the HC rejected this argument, holding that had the D fulfilled their
duty, the P wouldn’t have had to obtain advice at a later date, and thus, the negligence of
the advice at the later date had no effect. Gaudron, on her own found for the P on the
basis of a M’Ghee style reasoning. She suggested that in the absence of evidence that the
D’s breach had no effect, the breach had no effect, the breach would be taken to have
caused or materially contributed to the injury or damage.

Multiple Sufficient Causes

Alternative Causes

What is the situation where the P’s injury would probably have occurred anyway? E.g.
where the P has a pre-existing condition, and the negligence accelerates it.

Holton v Berkshire Area Health A thirteen year old boy fell out of a tree, and injured his
leg. The hospital failed to treat it properly for five days. He would develop osteo-arthritis.
The HofL held that where on the BoP, the plaintiff would have developed the condition
regardless of the D’s negligence, the D is not liable.

Von Hartman v Kirk Where the D accelerates death, the D is liable, but only pays
damages for the period of acceleration.

Additional Causes

Where two separate individual causes combine to cause a loss, both the Ds are liable as
concurrent tort feasors, and both will contribute to the P’s loss.

Performance Cars Ltd v Abraham (1962) 1 QB 33 The D drove into the P’s Rolls
Royce. A fortnight ago, another car had hit the P’s car. There was some overlap in
repairs, and it already needed respraying due to the first accident. The Court held that the
second D did not have it flowing to them that they had to pay for the damage caused by
the first accident. The fact that the first tortfeasor didn’t want to take on his share of the
costs shouldn’t affect the second tortfeasor.
Baker v Willoughby [1970] AC 476 The P suffered serious injury to his ankle. He
suffered pain, loss of amenity etc. In a hold up three years later, in a hold up, he was shot
in the ankle, and it was so serious that a his leg had to be amputated. The respondent (the
first tortfeasor) argued that he shouldn’t be liable for any loss, as there was no longer a
leg. The appellant argued that the injury hadn’t shortened his life, and so there was still
damage. The Court held that whilst the Court normally takes into account the vicissitudes
of life in calculating damages, this is not applicable in the current situation to suggest that
there is no loss. The Court held that at best, damages could be reduced for pain and
suffering, as there is no longer a leg, and so, the P can’t argue pain and suffering on the
basis of the leg. The Court held that the D was liable for all loss caused by him except the
additional loss caused by the thief. That is, the D couldn ’t rely on the second accident to
reduce liability for the loss ‘swallowed up’ in the second accident. It was held that
damages don’t compensate for the injury itself, but for the loss suffered as a result. The
second tortfeasor is only liable for the additional loss only, as you must take the victim as
you find them.

Faulkner v Keffalinos (1970) 45 ALJR 80 The D injured his leg in as a result of the
original tortfeasor’s negligence. He was further injured in a second accident, causing him
to lose all earning capacity. It was unsure who the second tortfeasor was. The Court held
that where the second incident is a non-tortious act, the Court will take it into account as
one of the “vicissitudes of life.” It was held that the D could rely on the second accident
toreduce damages on the “vicissitudes of life” principle. Thus, the first tortfeasor was
only liable for the loss of earning capacity up until the second accident.

Intervening Causation

Chapman v Hearse (1961) 106 CLR 112 The question was whether Hearse’s act in
running over Dr Cherry was a novus actus which broke the chain of causation between
Chapman’s actions and Dr Cherry’s death. It was held that as Chapman ’s negligence had
contributed to the death, and this was the sort of situation which was foreseeable,
Hearse’s actions weren’t a novus actus and that both were partly liable.

Mahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 An employee was
injured at work, and he sued the employer. The employer argued that Dr Mahoney ’s
negligent treatment had caused, or contributed to the employee ’s injuries. The Court held
that exacerbation of injury by medical treatment is a reasonably foreseeable where an
injury is negligently caused. IT was held that negligent treatment doesn ’t necessarily
break the causal connection. However, where professional and reliable treatment is
ordinarily available, and the P’s injury is exacerbated, then, the doctor providing the
medical services is liable for the degree of exacerbation.

March v Stramare (1991) 171 CLR 506 The defendant had parked his car in the middle
of the roak, and the P, a drunk driver, drove into his tail. The question was whether the
drunk driver’s dribing the car into the back of the truck break the causal chai? The Courts
held that the P’s negligence didn’t break the causal connection, as where the D ’s wrongful
conduct is the very reason for the P’s or the third party ’s negligent action, then the causal
connection is not broken.

Damages and Remoteness of Damage

Re Polemis & Furness Withy & Co Ltd (1921) 3 KB 560 It was held that if the damage
is too remote, the D is not liable. It is known as the “Direct Consequences Test. ”

Universe Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound
No 1) [1961] AC 388 Prior to the Wagon Mound looked at whether the injury or damage
were a direct consequence of the D’s act. It was criticised due to the burden placed on the
D. The employees of the charterers of the ship allowed a large quantity of oil to be
discharged into Sydney Harbour. It spread across a large part of the bay and congealed on
a wharf and around a ship. The plaintiff’s workmen gave instructions that no welding
work should be carried out. The manager told them to continue. They continued until the
wharf and the ship caught alight. The Privy Council held that Polemis is no longer good
law, and that liability is imposed where the consequences are reasonably foreseeable. It
was held that the d was not liable, as on the evidence, the damage was not reasonably
foreseeable.

Universe Tankship (UK) v Miller Steamship Co Pty Ltd (The Wagonmound (No 2))
[1967] 1 AC 617 per Lord Reid “reasonably foreseeable” means “A real risk…would
occur to the mind of the reasonable man…which he would not brush aside as far-fetched
or fanciful.” The actions were brought by the owners of two ships sued a charterer
alleging that the loss of their ships to fire was caused by the Defendant ’s negligence in
discharging large quantitities of furnace oil into the harbour. The Privy council found that
it was reasonably foreseeable that the oil spilt on the water may catch fire. It was argued
that the officers of the Wagon Mound would regard furnace oil as being very difficult to
ignite on water, and that they would have regarded it as a “possibility but one which
would become an actuality only in very exceptional circumstances “. It was held that the
D is liable for damage caused not only by the D, but that which fell within by the class or
category of damage which is reasonably foreseeable. If the officers had seen the damage
as a possibility, which could only become an actuality in exceptional circumstances. The
defendant’s in Wagon Mound 2 were held liable.

Hughes v Lord Advocate (1963) AC 837 It was held that it does not matter if the exact
circumstances are not foreseen, as long as harm of the kind could be foreseen. That is, it
is not required that the exact manner be foreseen, as long as the harm could be foreseen.
Workers working on a dark street went on a break, leaving an open manhole. They had
surrounded it by a canvas tent, and a ladder to get in. There were red paraffin lamps
around it. Two young boys went in, and one of the lamps were knocked over, and there
was an explosion. The younger boy fell into the manhole as a result, and suffered severe
burns. The HofL held that the D owed a duty and breached it, and although the injuries of
a different degree weren’t foreseeable, however, something of the kind was foreseeable.
Whilst the manner was unforeseeable, the harm could have been foreseeable.

Mt Isa Mines v Pusey (1970) 125 CLR 383 The HC held that a mental disorder of some
kind was reasonably foreseeable as a result of their negligence. The degree of that
disorder need not be foreseen. The HC held that what is required is:

–     not foresight of the particular course of events

–     only some harm of a like kind.

–     The “comfortable latitudinarian” doctrine – this is a broad test.

Egg Shell Skull Cases

Enunciates the concept of  take the plaintiff as you find them. The extent of harm need
not be foreseeable as long as the KIND of harm is foreseeable.

Dulieu v White (1901) 2 KB 405      The plaintiff may suffer from some pre-existing
weakness or the defendant’s negligent act may cause injury resulting in some
susceptibility to further illness or injury

Smith v Leech Brian & Co (1964) 1 QB 518 The plaintiff was a worker and he got burnt
and this enhanced cancer.  As it was reasonably foreseeable that there would be a burn,
responsibility extends to the fatal cancer which developed from an unusual pre-malignant
condition of the victim.

Robertson v Post Office (1974) 2 All ER 737 The plaintiff suffered brain damage after
getting a tenus shot for graze and it was reasonably foreseeable that the medical treatment
would go wrong and therefore the D is liable for damage.

Week 2 Defences to negligence

The most common defence argued is that the defendant did not breach the duty. Whether
the duty has been breached is decided by a tribunal of fact. Sometimes, it is argued that
no duty was owed.

Contributory Negligence

The historical position at common law was that it was a complete defence.

Butterfield v Forrester (1809) 103 ER 926 It was held that if the D could establish that
the P was guilty of a failure to take care of his or her safety, then, the D is not held to be
liable.
Davies v Mann 152 ER 588  The situation espoused in Butterfield was modified by the
“last opportunity rule.” This stated that whoever had the last opportunity to avoid the
accident would be liable.

This rule was further modified in Alford v Magee (1952) 85 CLR 437 The HC fiddled
with the cases and the applicable cases, and stated that where the D had a real opportunity
to avoid the accident, they should be liable. If the D ’s actions were later in time, the D
would be liable. Where D had an advantage, the D is liable.

All these rules looked at laying the blame on either party’s shoulders, there was no notion
of apportionment.

Thus, s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 was enacted, which
means that contributory negligence is no longer strictly a defence, but a plea for the
reduction of damages. The act is a cornucopia of tort reforms in NSW.

s 10 states: “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 & equitable, having regard to the
claimants share in the responsibility of damage.

Apportionment of responsibility is a question of fact. “damage ” is defined to include any

loss of life and personal injury. “Fault” is defined as “negligence or other act or omission
which gives rise to a liability in tort.”

The apportionment of liability is measured in terms of percentage.

Pennington v Norris (1956) 96 CLR 10 The P was run over by the D on a dark, wet
night. He had had a few drinks too. The Tasmanian Supreme Court held that the P ’s
damages would be reduced by 50% due to contributory negligence. On appeal to the HC,
it was held that the damages would only be reduced by 20%. The HC held that it must be
a “just and equitable” apportionment of responsibility between P&D.

Generally, in NSW, a 30% reduction is large, 25% still quite large, and a 15-20%
reduction more likely.

Culpability means the “degree of departure from the standard of care of the reasonable
man.” The act gives wide discretion to the tribunal of fact.

Froom v Butcher (1975) 3 All ER 520 It was held that negligence depends on the
breach  of a duty of care, but contributory negligence doesn’t. The P is guilty of
contributory negligence if he ought reasonably have foreseen that, if he did not act as a
reasonable prudent man, he might be hurt himself. It was a reduction in damages for the
failure of the P to wear a seatbelt.

Lord Denning stated that where the failure to take care for one ’s own safety made all the
difference, he would apportion a 25% reduction, where there is a significant contribution,
he’d apportion 15%. (In Froom v Butcher, however, this is in no way binding, just
interesting).

Davies v Swan Motor Co (1949) 2 KB 291 For contributory negligence, there is no

requirement that P owe a DoC to anyone, just that they failed to take reasonable care for
their own safety.

There is further a question as to whether there is a causal link between the P ’s loss and
their negligence. It must be foreseeable.

Jones v Livox Quarries (1952) 2 QB 608 The P was riding a towbar on the back of a
truck. Any reasonable person would think it foreseeable that they would fal off or that
another vehicle could run into the back of their truck. It was held that the P is guilty of
contributory negligence, as he should have foreseen that standing on the back of the truck
would lead to injury. He had been injured when someone ran into the back of the truck.

Gent-Diver v Neville (1953) QSR 1 The P was a pillion passenger on a motorbike. He

knew that the front light was defective. The collision was due to the fact that the driver
was driving on the wrong side of the road. It wasn’t due to the fact that the headlight
wasn’t on, and so there was no causal link, and thus, no reduction. It was held that there
was no contributory negligence, because although the P knew the lights were defective,
the accident was not caused by defective lights, but by the D was on the wrong side of the
road.

The standard of care applicable to the P is reasonableness and the calculus of negligence
is applicable.

Caterson v Comm for Railway (1973) 128 CLR 99 The P was a man who lived in the
country seeing a friend off at the station. HE carried his baggage onto the train and it
moved off. He had left his 14 y.o. son at the station. The next station was 130 km. The P’s
home was 80 ks away. The P jumped off the moving train, and was injured. He sued the
D in negligence for not warning him that the train was moving off. The question of
contributory negligence arose. The Court held that “where the P has been so placed that
they can only escape by taking a risk, the question of reasonableness is weight between
the inconvenience caused, and the risk taken.” It was held that   the P was not
contributorily negligent.
The risk taken by the P is considered in light of the situation of risk created by the
Defendant (McLean v Tedman (1984) 155 CLR 306) Plaintiffs are judged quite
leniently, as the plaintiff’s conduct is judged in light of the situation created by the
Defendant.

McLean v Tedman (1984) 155 CLR 306 The P was a garbo, who was crossing the road
when Brambles (one of the Ds) overtook the garbage truck, and ran over him. The garbo
would run back & forth, and emptying the bins on either side. The plaintiff sues both the
driver, and his own employer for negligence. The employer and the driver argue
contributory negligence on the part of the plaintiff. The employer argues that the P had
been instructed not to carry out the work in this way, but to travel up a street, emptying
all bins on one side, then emptying the bins on the other. The D argued that the P was
negligent in not taking a proper lookout for his own safety. However, the HC held that as
the employer knew that all the garbos didn’t adhere to the instructions given, and the
employer did nothing about this, they were negligent in allowing an unsafe system of
work, and the driver, by overtaking at an unsafe speed created the dangerous situation,
and thus, the P was not contributorily negligent.

Volenti Non Fit Injuria

Where a plaintiff voluntarily assumes the risk, this is a complete defence to a claim of
negligence. Where a D can show that the P voluntarily assumed the risk, the D cannot be
liable. However, the defence of volenti cannot be pleaded in motor vehicle or work
accidents due to s 76 of the Motor Accidents Act 1988 and s 151o of the Workers
Compensation Act 1987.

In order to show volenti the D has to prove that:

1        the P knew of the facts constituting danger (knew the risk)

2        fully appreciated the danger inherent in those facts

3        fully accepted the risk of injury.

American Cigarette Co (overseas) Pty Ltd (No 3) (1987) VR 289 The P was a smoker
who contracted lung cancer who sued in negligence for the D ’s failure to warn of the risk
of contracting lung cancer. The D brought a defence of volenti, stating that the P knew or
ought to have known the risks of smoking. The P applied to strike out the defence. The
Courts held that constructive knowledge was not acceptable to constitute a defence of
volenti. It was held that P’s knowledge must have been express, and that actual, rather
than constructive knowledge was required.
Imperial Chemical Industries v Shatwell [1965] AC 656 The HofL held that the general
rule is that voluntary assumption of risk will NOT defeat a claim of an employee against
an employer.

Insurance Commissioner v Joyce (1948) 77 CLR 39 Latham CJ held that where the P is
a passenger in a car of a drunken driver, the P should fail on any one of the following
three grounds:

No breach of duty to a willing passenger

P was contributorily negligent in getting into the car.

The P voluntarily assumed the risk.

Roggenkamp v Bennet (1950) 80 CLR 292 The P was FULLY aware of the D’s
drunkenness and P accepted the risk. Whether this is so is a question of fact, and can be
inferred from the P’sbehaviour. As a result of the above, it was held that the D had a
defence of volenti and P couldn’t bring an action.

Rootes v Shelton (1967) 116 CLR 383 The P was a very good water skier who was
performing a cross-over with another skier. This was also known as “Russian Roulette. ”
The P was injured while performing the cross-over, as the driver of the speed boat was
driving too close to another craft, and he collided with it. The D argued volenti. However,
the Court held that the P had assumed the risks involved in the “Russian Roulette”
manoeuvre, but not that of the negligent driving of the speed boat driver. The P’s action
was successful. It was held that the P may accept inherent risks involved with the sport,
but not non-inherent risks, or the risk of negligence outside the sport.

Kent v Scattini (Full Ct of WASC) The P was a sixteen y.o. who was sitting on the steps
of the P.O. when they were sprayed by other kids with water. The P & her friends armed
with similar equipment took after the other car, and were travelling at 80km/hr, when the
car failed to take a bend, and the P was injured. She sued the driver of the car. The D
argued volenti. The Court held that she had only assumed risk in regard to the spraying of
water, and not in regard to the D’s negligent driving, and thus, the P was successful. It
was held that P is only barred from recovery for losses which are caused by the result of a
known and accepted risk.

Illegality

This is referred to as a defence, but is usually used to deny that a duty of care existed.
Henwood v Municipal Tramsways Trust (Sth Aust) (1938) 60 CLR 438 The P was the
mother of the deceased who was killed when leaning out the window to vomit. The tram
carriages were too wide, and went very close to the staunchons. The deceased was killed
when he hit his head on one, whilst vomiting. The D was aware of previous serious
accidents, and hadn’t warned people, except to put up a sign to say that leaning out of
tram windows is prohibited. The P sued the trust. The trust argued that the son had
committed an illegal act, and thus, they weren’t liable. On appeal to the HC, McTiernan
and Dixon JJ held that one must look at the purpose of the law which the P has
contravened. If it is to disentitlte P, then, the D is absolved of liability. If not, the D is still
liable.

Jackson v Harrison Jacobs J held that “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 that there is a duty of care.”

Gala v Preston (1991) 172 CLR 243 Four youths stole a car, and went for a joyride,
when they met with an accident. The P (one of the youths) sued the D (the driver of the
car) in negligence. The question was whether the illegal act deprived him of his ability to
sue. Mason CJ, Deane, Gaudron and McHugh JJ held that whilst illegality doesn ’t
automatically deprive the P of a right to sue, where they are in a joint illegal enterprise, it
is not feasible to determine the appropriate standard of care, and thus, no duty arises.

Week 3 STRICT LIABILITY RELATING TO LAND, animals and fire

Liability for nuisance was often though as of being “strict”, though today it is
increasingly being assimilated to negligence. At common law there were two cases
where liability was by any definition “strict”: liability for damage caused by animals and
liability for fire. In the famous case of Rylands v Fletcher (1868) the House of Lords
generalised from the instances of the case to create a general principle of liability for the
escape of dangerous things from a defendant’s land. Since that case though the courts
have tended to stress negligence rather than strict liabilities.

Rylands v Fletcher [1868] LR 3 HL 330

Fletcher, a millowner, employed private contractors to build a reservoir on his land to

supply water to his mill. In the course of excavating on Fletcher ’s land, the contractors
came across some disused mine-shafts, which unknown to them, connected with mines
underneath the adjoining land. Rylands had taken a lease on that land in order to work
the mines. The contractors negligently failed to seal up the mine-shafts and when the
reservoir was flooded with water, the mines were also flooded.

There were certain requirements in Rylands v Fletcher if liability was to be established:

1) the defendant must bring the thing on his land and must do so for his own
purposes

2) the thing must be likely to do mischief if it escapes

3) the defendant’s use of the land must be non-natural

4) the thing must escape

“Dangerous things”

It is usually said that a thing is “dangerous” for this purpose if it is likely to cause damage
if it escapes, and the following have, at one time or another, been held to be dangerous:
gas (Batchelor v Tunbridge Wells Gas Co (1901)); a poisonous yew tree (Ponting v
Noakes (1894)); fumes from creosote (West v Bristol Tramways(1908)) and a fun-fair
“chair-o-plane” ride (Hale v Jennings Bros (1938). However, the House of Lords now
appears to have held that a thing cannot be “dangerous” if its escape was not foreseeeable
at all

Cambridge Water Co v Eastern Counties Leather [1994] 1 All ER 53 HL

Eastern Counties Leather used a powerful toxic solvent in their tanning process, much of
which was spilled on the factory floor. Over several years of use, a large quantity of this
solvent seeped under their property, several thousand metres along an aquifer and into
Cambridge Water’s bore-hole. New EU regulations on water quality meant that the
solvent made the water legally undrinkable. Held: No action lay because the pollution
was unforseeable.
In Crown River Cruises v Kimbolton Fireworks Ltd ([1996] 2 Lloyds Rep 533)
where the defendant’s fireworks caused a fire on the Claimant ’s river vessel, Potter J was
reluctant to base liability on the Rylands v Fletcher principles, he based liability on
nuisance instead.

Requirement of “non-natural use”

It is not clear what the requirement of non-natural use adds to the requirement of
dangerousness. It probably means that the defendant must deliberately accumulate
something, rather than fail to remove a pre-existing (natural) accumulation. Most modern
cases assume that the test is one of how ordinary the defendant ’s activity is and how
justifiable. So activities such as erecting or demolishing buildings (Thomas and Evans v
Mid-Rhondda Co-operative Society 1941) or mining in an ordinary way (Rouse v
Gravelworks 1940) are not unnatural.

“Escape”

It seems the meaning here is that something must escape as a result of an accumulation
but it need not be the accumulation itself.

Who may sue?

The usual Claimant in these cases is a landowner (including anyone with an interest in
the land) who has suffered property damage.

Who is liable and how strict is the liability?

The liability arises whenever a defendant has control over land where there is a
dangerous accumulation. The liability is usually described as strict. However, various
defences together drag tort in the direction of liability for fault

- if the immediate cause of the incident was the act of a trespasser, there is no
liability unless the defendant ought reasonably to have foreseen and prevented the
trespasser’s action (Perry v Kendricks Transport 1956).

- If the immediate cause of the incident was some unforseeable natural cause (Act of
God), such as unforseeably heavy rainfall, the defendant is not liable (Nichols v Marsland
1876)

- A Claimant cannot complain of an escape which was the Claimant’s own fault. On
the question whether a Claimant can complain of a loss which would not have happened
but for the Claimant’s abnormal sensitivity, the authorities conflict.

- If damage of the type the Claimant suffers was not foreseeeable at all a Claimant
cannot claim (Cambridge Water case)

Other defences

A defendant also has a defence on proof of any of the following:

- that the Claimant consented to the dangerous accumulation. Consent may often be
inferred from the knowledge of the accumulation. However, if a Claimant knows of the
accumulation but not that the defendant has acted negligently, then the defendant remains
liable for negligence to which the Claimant has not consented (Peters v Prince of Wales
Theatre (1943).

- If the accumulation was carried on for the common benefit of the Claimant and the
defendant, it can usually be taken that the Claimant has consented to it (Prosser & Son v
Levy 1955)

- That the defendant had a statutory duty or authority to make the accumulation
despite the danger. It appears that if the statute places the defendant under a duty to act
(as where a water company is placed under a duty to maintain pressure in its pipes), the
defendant will probably not be liable for the unavoidable risk of escape unless negligence
is proved.
Strict liability for Fire

Strict liability for fire pre-dates Rylands v Fletcher but it is usually discussed as an
example of Rylands liability, which exists alongside negligence liability for fire. So
where the carburettor of a defendant’s car caught fire in the plainitiff ’s garage, the court
applied Rylands (Musgove v Pandelis 1919).

By ancient statute (Fires Prevention Metropolis Act 1774) there is no liability for fires
which start accidentally. But the courts have construed this narrowly, holding that no fire
is accidental if it starts or is made worse by a defendant ’s negligence ( Goldman v
Hargrave 1967) or falls within the Rylands’ principle (Mason v Levy Auto Parts of
England 1967).

A defendant is also liable for the negligence of all lawful visitors on the land, though who
is a lawful visitor can be a difficult question.

H & N Emmanuel v Greater London Council [1971] 2 All ER 835 CA

The GLC hired contractors to remove two prefabricated bungalows, prohibiting them
from burning any rubbish involved. The workers nonetheless did so and the fire spread
to Emmanuel’s property. Held: As the GLC had done nothing to guard against the
obvious risk that the workers would disobey their instructions, they could not plead that
the workers were trespassers when they burned their rubbish and the GLC was liable for
their actions.

LIABILITY FOR ANIMALS

By the Animals Act 1971 the “keeper” of animals is under a strict liability for damage
caused by those animals in two situations described by the Act. “Keeper” is defined as an
animal owned or possessed (though temporary possession is not included). If a defendant
is head of a household he is keeper of all the animals in his household owned by
members of the household under 16.

Animals of a dangerous species.

If the animal is of a dangerous species then the defendant is strictly liable for any damage
or harm done by it. A species is dangerous if

- it is not commonly domesticated in the British Isles; and

- fully grown members of the species either are likely to do severe damage unless
restrained, or are such that any damage they do is likely to be severe.

Individually dangerous animals

A defendant is also strictly liable as keeper of an animal from a non-dangerous species if

- the damage the animal caused was of the sort it was likely to cause unless
restrained, or which was likely to be severe if that animal did it;

- that animal’s dangerous characteristics are not usually found in animals of that
species

- the defendant knew of the danger or the person in charge knew of the danger.

The liability of a keeper under the Animals Act 1971 is strict and it is quite irrelevant
whether the harm done by the animal has anything to do with its dangerous
characteristics. The Act, however, recognises certain defences:

- The Claimants own fault: damage which is wholly the Claimant ’s fault attracts no
liability at all. Damage which is partly the Claimant’s fault may lead to a reduction in
damages.

- The Claimant’s consent: a Claimant cannot sue where the Claimant earlier agreed
to run the risk of harm.

- The Claimant is a trespasser: a Claimant cannot recover for an injury caused by a

defendant’s animal if the defendant shows that it occurred when the Claimant was
trespassing on the defendant’s land, except if the defendant keeps an animal deliberately
to guard the land, in that case the defendant has a defence only if he/she can show that it
was reasonable to use the animal in this way. (the Guard Dogs Act 1975 strictly
regulates the use of guard dogs)

Special cases

Dogs harming livestock

Where the defendant is keeper of a dog which harms a Claimant ’s livestock, the
defendant is strictly liable to the Claimant. Livestock is precisely defined in the Act and
means “cattle, horses, asses, mules, hinnies, sheep, pigs, goats and poultry and also deer
not in the wild state, and while in captivity, pheasants, partridges and grouse ” (s.11
Animals Act 1971).
Straying livestock

Where the defendants livestock strays onto another’s land, there is strict liability for
property damage done as a result. There is also a statutory right to detain the offending
animals to charge for their care while detained and ultimately to sell them off if not
reclaimed (s.7 Animals Act) .
 

Class discussion and assignment on Death as a cause of action

At common law, the death of one person has never been regarded as an injury to another.
At common law, actio personalis moritur cum persona means that if the victim or
tortfeasor dies prior to judgment, the action perishe as well. However legislative reform
allows for the survival of a cause of action to the estate of the deceased. Some causes of
action and heads of damage are excluded.

S 2 of the Law Reform (Miscellaneous Provisions) Act states that “all causes of action
shall survive against or… for the benefit of the estate. ” Except defamation, seduction,
inducing a spouse to leave…Damages recoverable do not include:

–     exemplary damages

–     damages for loss of earnings or earning capacity

where death is caused by D’s act, damages calculated without reference to loss or gain to
estate consequence upon death

Where death is caused by D’s act, no damages are awarded for pain or suffering or mental
harm, or for loss of expectation of life.

One amount is awarded and then, apportioned amongst claimants as the Court thinks fit.
The basic principle is that dependants are to be compensated for pecuniary loss resulting
from the death: either actual, or prospective.
Parker v the Commonwealth held that damages “should be calculated in reference to a
reasonable expectation of pecuniary benefit…from continuance of the life.”

S 3(1) states that “when…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 for damages…”

S 3(2) states that funeral expenses can be recovered.

S 3 (3) In assessing damages, insurance, superannuation, pension payable as a result of

death are not taken into account.

S 4 allows an action to be brought for the following relatives: wife, husband, brother,
sister (including half brothers and sisters), parent, child, de facto spouse of deceased.

S 7 (definitions) defines parent to include grandparents step parents, person “in loco
parentis’, and child includes grandchild, stepchild.

The Stella [1900] P 161 the widow of a man who died in a shipping accident, where he
drowned, brought an action on his behalf. He had been a paying customer, however, an
exclusion clause excluded liability for death or injury. The Court held that the exclusion
clause was valid, and thus, the widow had no action under Lord Campbell’s Act as the
deceased would have had no action, had he survived.

Nunan v Southern Railways [1924] 1 KB 223 A widow was held to have a cause of
action where the ticket of the deceased limited liability. The widow ’s damages were not
limited because her action under legislation was new and separate from the personal
contract between the deceased and the railway company.

The wrongful act causing death need not be tortious.

Woolworths v Crotty (1942) 66 CLR 603 Mr Crotty was killed by a faulty light globe he
bought at Woolworths which electrocuted him. It was held that the “wrongful act ” could
be a breach of an implied term in the contract.

The relatives are required to establish that the wrongful act caused death.

Haber v Walker [1963] VR 339 Haber was involved in a serious car accident, which
rendered him very disabled. He also suffered a severe depressive illness caused by the
accident, leading him to comit suicide. The relatives sued the negligent driver. The D
argued that the causal connection had not been established between the accident and the
suicide. Ultimately the Court found for the widow, holding that it was the accident which
caused the severe depressive illness, which caused the deceased to commit suicide.
Under s 10 (4) of the Act, contributory negligence will not affect the relatives claim. This
is subject to s75 of the MAA and s 151N(5) of the Workers Comp Act.

McIntosh v Williams [1979] 2 NSWLR 543 holds that the action is brought by the legal
personal representative of the deceased – either the executor or the administrator of the
estate. This person brings the action on behalf of all entitled victims.

Class discussion and assignment.

Liability

Concurrent liability occurs where more than one tortfeasor is negligent and causes P ’s
damage.

The different types of tortfeasors include joint tortfeasors, several concurrent tortfeasors
and several tortfeasors causing different damage.

Joint tortfeasors are where more than one party act together and jointly cause P ’s damage.
This includes:

–     vicarious liability

–     agency

–     a duty imposed jointly e.g. two occupiers jointly liable to the injured P.

–     where two or more D’s take concerted action to a common end e.g. atuthor,
publisher, and printer of defamatory material.

The plaintiff has one cause of action against all joint tortfeasors. The Ds are jointly and
severally liable, and the plaintiff can recover 100% against any or all of the tortfeasors.

Several concurrent tortfeasors is where two or more defendants, not acting in concert,
who nevertheless inflict a single injury on P (e.g. two negligent drivers collide and injure
a passenger in one of the cars). The P has several causes of action in respect of one
injury, and the Ds are jointly, and severally liable.

Several tortfeasors causing different damage is where the P has two or more different
injuries caused by two or more defendants. In which situation, the plaintiff has two
causes of action, each liable for separate damage.
Traditionally at common law, the rule in Merryweather v Nixon 101  ER 1337 one
tortfeasor could not recover any contribution from another. This position has been
abolished by s 5 of the Law Reform (Miscellaneous Provisions) Act 1944. This allows a
concurrent tortfeasor (whether joint or several) to recover from the others a contribution
to the damages paid to the plaintiff.

The contributions legislation is:

–     only applicable in tort, and not in contract or other areas.

–     The contribution can be claimed by “any tortfeasor liable in respect of damage ” so
this includes a D who has settled a claim, not only one against whom a judgment has
been entered.

–     Contribution can only be claimed from a defendant who has contributed to the “same
damage” that is, joint or several concurrent tortfeasors.

–     The contribution can be claimed from a D who “is or would if sued have been liable ”
so it is immaterial whether the P actually sues all Ds or that contribution proceedings are
brought after the plaintiff’s claim would be statute barred.

–     The contribution recoverable in terms of amount is “such as may be found by the
court to be just and equitable having regard to the extent” of the defendant’s responsibility
for the damage.

–     Under the leg’n a tortfeasor can join another tortfeasor to the proceedings.

Lister v Romford Ice and Cold Storage [1957] AC 555 the plaintiff was the employee of
Romford Ice, who was injured due to the negligence of a fellow employee – his father.
The p sued the employer for vicarious liability for the employee’s negligence. The
plaintiff is awarded damages, and then, the employer sues the negligent employee for
contribution to damages, and receives 100% contribution from the employee.

s 3 of the Employees Liability Act 1991 states that the joint tortfeasor rule does not apply
to a situation which is comparable to Lister.

 
Week 4 Nuisance

Private Nuisance

Hargrave v Goldman (1963) 110 CLR 40 per Windeyer J nuisance is “an unlawful
interference with a person’s use or enjoyment of land, or some right over or in connection
with it.”

Harley v Esso Petroleum (1961) 2 All ER 145 This was a test case brought by the
plaintiff, who lived in a terrace in Fullham London against Esso who had an oil depot on
the banks of the River Thames. Tankers would arrive from up the river and oil would be
transferred from the river tankers and into storage tanks. Then, road tankers would come
and take the oil from there. A night shift was introduced. The plaintiff sued under
nuisance for the noise from the pumps, a pungent smell, and acid smuts which rose out of
the chimneys which soiled their washing, and damaged their cars. The P sought an
injunction – the general remedy for nuisance. The courts held that the P was entitled to
succeed as it was held that the emissions of acid smuts seriously impaired the enjoyment
of land. Further, the smell wasn’t “merely trivial” and was particularly pungent. Finally,
the noise at night was held to be a serious nuisance which went beyond a triviality.

St Helens Smelting Co v Tipping (1865) 11 ER 1483 The court held that a private
nuisance could occur:

(i)         by interference with the P’s use and enjoyment of land

(ii)        by material damage to property.

It was held that the factor of locality was irrelevant where there is material damage to
property (i.e. who’s there first). In other cases, the question of locality is a factor to be
considered. (Not necessarily a decisive factor. This case was approved in Harley v Esso.

Title to Sue

Oldham v Lawson (No 1) (1976) VR 654 Where the P is not the owner, they have no
proprietary interest in the property, and thus had no standing to sue. In this case, the A
leasehold interest is sufficient. The Court held that as the P’s wife owned the property, the
husband had no title to sue.

Khorasandjian v Bush (1993) QB 727 The P was successful in an action for nuisance as
the D had been making phone calls and other harassing conduct. This was despite the fact
that she had no proprietary interest – she lived with her parents, and thus, didn ’t own the
property.

Hunter & Ors v Canary Wharf (1997) All ER 426 overruled Khorasandjian and re-
established the requirement that the P must have a proprietary interest in the land to sue.

Which Rights are Protected

Victoria Park Racing & Recreation Grounds Co LTd v Taylor (1937) 58 CLR 479 The
P owned a racecourse, and Taylor’s property shared a boundary with the racecourse. He
constructed a platform on his property such that you could watch the races. He entered
into an agreement with the local radio station whereby they could broadcast the race. The
HC held that the D’s actions did not affect the use and enjoyment of the property, as it
was a racecourse, and the D’s actions did not disrupt its operation as a racecourse. It had
an effect on the takings the owner got, but it was held that an action in nuisance does not
protect that interest.

Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia (1986) VR

383 The defendants were unionists who picketed Dollar sweets. They had formed a large
picket line outside the P’s premises, preventing other employees from entering the
premises. The Supreme Court of Victoria held that this constituted nuisance, as the use
and enjoyment of land was hampered by the defendant’s preventing others from entering
the P’s premises. It was held to interfere with the P’s right to free access to and from the
property.

Broderick Motors Pty Ltd v Rother (1986) Aust Torts Reps 88-059 The D purchased a
car from a used car dealer, which was not in good working condition. As a result, he
parked the car on the street, with a sign which stated: “For Sale; Distance Travelled:
Unknown; Purchased from: Broderick Motors. Be the 10 th owner of this bomb.” The
plaintiff sued in nuisance. However, it was held that it was not nuisance as the D had
simply parked the car on the street, and had not interfered with the use and enjoyment of
his land.

Animal Liberation Vic (Inc) v Gasser (1991) 1 VR 51 The defendants were opposed to
the use of animals in a circus, and demonstrated outside the plaintiff’s circus. Patrons had
to walk the “gauntlet” with demonstrators shouting slogans. This was held to be nuisance
by the Ds by “besetting” the property and putting entrants in fear for their safety.
Factors in Determining What Conduct is Nuisance

Halsey v Esso looked at whether the factors of smell, noise, and pollution were “mere
trivialities.” That is, the real question is, was the D’s conduct reasonable?

Munro v Southern Dairies Ltd (1955) VLR 332 It was held that triviality is measured
according to ordinary notions.

St Helens Smelting Co v Tipping Held that the question of locality is only relevant in
cases of intangible interference, and not where there is material damage, and even then, it
is one of many factors considered.

Clarey v The Principal & Council of The Women’s College [1953] 90 CLR 170 The
defendants were the Women’s college who leased premises to students. The neighbours
brought an action in nuisance for the noise generated by the students. However, the HC
held that the noises were of the sort incidental to the occupation of the property, and thus,
the neighbours were unsuccessful.

McKenzie v Powley the Ps were the neighbours of a Salvation Army hall, who
commenced services at 7 am on a Sunday. The ps brought an action in nuisance, and the
SASC agreed that the noise constituted a nuisance at 7 am, but not at 9 am.

Robinson v Kilvert (1889) 41 Ch D 88 The P used a warehouse to store delicate paper

products, and a manufacturing process of the D’s required heating, the heat damaging the
Ps products. However, it was held that where P is involved in “an exceptionally delicate
trade” he cannot recover for nuisance.

Hollywood Silver Fox Farm v Emmett (1936) 2 KB 468 The D’s son fired off shots
close to the pens of silver foxes under the instructions of D, maliciously in order to annoy
the P. When alarmed, silver foxes eat their young, and refuse to breed, and this happened
as a result of the D’s son’s actions. The Court held that as the D had acted maliciously, the
P would recover, even though the P’s activity was hypersensitive.

Who Is Liable

The D does not need to have proprietary rights in the land from which the nuisance
emanates.

Fennell v Robson Excavation Pty Ltd (1977) 2 NSWLR 486 The D was a contractor
who was found to be liable for creating a nuisance even though he was not in occupation
or possession of the land. He had excavated so much land that the Plaintiff ’s house started
sinking.
Where an owner adopts or continues a nuisance, they are liable.

Sedliegh-Denfield v O’Callaghan (1940) AC 880 The local council installed a drainage

pipe on the D’s land. In installing it, they had trespassed. The D didn ’t know of this, but
when they came to know of it, they used the pipe to drain their property. The result was
that some of the drainage had overflowed on to the Ps property. The court held that the D
was liable for nuisance, as they ahd allowed the nuisance to continue, and they had
further adopted it. D “continues a nuisance if with knowledge of its existence, he fails to
take any reasonable means to bring it to an end.” D adopts nuisance “if he makes any use
of …(the thing) which constitutes the nuisance.”

Montana Hotels v Fasson Pty Ltd (1986) 69 ALR 258 The Ds were in possession of a
faulty downpipe, which caused the hotel to be flooded. However, it was held that the Ds
weren’t liable as the D didn’t know or didn’t ought to know of the downpipe. There is an
obligation to stop nuisance where the D knows of it.

Goldman v Hargrave [1967] 1 AC 645 (PC) It was held that once the farmer became
aware of a danger on the property they should have taken steps to eliminate or reduce the
danger. The PC held that it wasn’t the actions of what the reasonable person would have
done that is taken into account, but the D’s resources – physical and financial, which are
taken into account.

Leakey v National Trust [1980] QB 485 The Trust was the occupier of a property which
was on Burrow Hump, which was liable to slip. The D knew of this, and did nothing. The
P suffered damage as a result, and the D was held to be liable in nuisance, as they didn ’t
take any remedial action, and their resources were more than sufficient to undertake the
work. This followed Goldman v Hargrave.

Defence of Statutory Authorisation

Where an act of parliament expressly or impliedly authorizes the creation of a nuisance, it

is a proper defence.

Managers of The Metropolitan District Asylum v Hill (1881) 6 App Cas 193 The
asylum was a creature of statute, which was charged with the job of setting up a hospital
for people with contagious diseases. The neighbours brought an action in nuisance. The
Ds argued that they were statutorily authorized to set up the hospital, and thus, were
immune from an action for nuisance. The court held that where a statute expressly states
the authorisation, this is true, where it is implied, the onus is on the D to demonstrate the
authorisation. The Court held that the weight of evidence didn’t favour the authorisation.

York Bros (Trading) Pty Ltd v The Commissioner for Main Roads (1983) 1 NSWLR
391 The Commissioner built a road bridge across a navigable river, which obstructed the
flow of the river. The Ps sued in nuisance. The Ds argued statutory authorisation by the
Main Roads Act. The NSWSC held that the act did not provide a defence. Powell J held
that:

–     prima facie, it is not the intent of the legislature to authorize nuisance.

–     D must show that the work was reasonably necessary

–     And that it was properly performed

–     AND that there was no reasonable way of performing the work without creating a
nuisance, in light of available scientific knowledge.

Public Nuisance

Public nuisance affects the public at large, is a crime, the action is brought by the
Attorney General, and private individuals don’t have standing to sue unless they have
suffered particular damage that is over that which suffered by the public at large.

AG v PYA Quarries Ltd  (1957) 2 QB 169 Denning J held the following on the question
of how many persons are “the Public”:

“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.”

Week 5 to exams

Tutorials

Questions to be communicated.