LAW OF TORTS

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LAW OF TORTS
LECTURE 4
NEGLIGENCE – DUTY OF CARE
CLARY CASTRISSION
[email protected]
HOW WILL WE COVER NEGLIGENCE?
Today: Duty of Care at common law
Civil Liability Act and Duty of Care
More CLA and Breach of Duty
Damage and Particular Duty Areas
More Particular Duty Areas
ROADMAP FOR TODAY
Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
 Proximity and Reasonable Foreseeability v Incrementalism
Some interesting applications
 Unborn children and the wrongful life cases
Legislative reform
NEGLIGENCE AND FAULT IN TORTS
FAULT
INTENTION
NEGLIGENCE
TRESPASS
CARELESS
NEGLIGENCE
the action
NEGLIGENT TRESPASS
Intentional or negligent act of D which
directly causes an injury to the P or his
/her property without lawful justification
The Elements of Trespass:
 fault: intentional or negligent act
 injury must be direct
 injury may be to the P or to his/her property
 No lawful justification
NEGLIGENT TRESPASS
While trespass is always a direct tort, it is not
necessarily an intentional act in every instance. It
may be committed negligently
Negligent trespass is an action in trespass not in
negligence:
Where the facts of a case permit, it is possible to
frame an action in both trespass and negligence
on the same facts
•Williams v. Molotin (1957) 97 CLR. 465.
WHAT IS NEGLIGENCE?
It is the neglect of a legal duty
Negligence v carelessness
“The law takes no cognisance of negligence in the abstract. It concerns itself with carelessness
only where there is a duty to take care and where failure in that duty has caused damage.”
(Lord
MacMillan in D v S)
Tame v NSW (2002) 211 CLR 317
NEGLIGENCE: THE ELEMENTS
Duty of care
Negligence
Breach
Damage
NEGLIGENCE: THE EARLY CASES
Heaven v. Pender (1883)
The dicta of Brett MR:
whenever one person is by circumstances placed in such a position with regard to another,
that every one of ordinary sense who did think would at once recognise that if he did
not use ordinary care and skill in his own conduct with regard to those circumstances
he would cause danger or injury to the person or property of the other (person) a duty
arises to use ordinary care and skill to avoid such danger.
DONOGHUE V. STEVENSON [1932] AC 562
Facts
Understanding the relationships
DONOGHUE V STEVENSON (CONT)
Dicta of Lord Atkin
•The rule that you are to love your neighbour becomes in law,
you must not injure your neighbour, and the lawyer’s
question, who is my neighbour? receives a restricted reply.
You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure
your neighbour. Who then in law is my neighbour? The
answer seems to be persons who are closely and directly
affected by my act that I ought reasonably to have them in
mind to the acts or omissions which are called into question
(at 599)
THE MANUFACTURER’S DUTY
Grant v Australian Knitting Mills (1936)
The application of the rule in D v S
•a manufacturer of products, which he sells in such a form as
to show that he intends them to reach the ultimate consumer
in the form in which they left him with no reasonable possibility
of intermediate examination, and with the knowledge that the
absence of reasonable care in the preparation or putting up of
the products will result in an injury to the consumer’s life or
property, owes a duty to the consumer to take that reasonable
care
Baar v Snowy Mountains Hydro-Electric Authority (1970) 92
WN (NSW) 472
WHAT DID LORD ATKIN MEAN?
“What Lord Atkin did was use his general conception to open up a category of cases
giving rise to a special duty… [The process] may be described either as the
widening of an old category or as the creation of a new and similar one. The
general conception can be used to produce other categories in the same way.”
 Lord Devlin in Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465 (at 524)
ESTABLISHED CATEGORIES
Type of Harm
Type of Defendant
Type of Plaintiff
Manufacturer to consumer
Makers/repairers to users of chattels
Teachers to pupils
Occupiers of land to visitors
Skilled professionals to their clients
Highway workers to highway users
CHECKING IN
Snails
Overview of negligence
Arriving at a Duty of Care
Categories
_________
The harder ones:
 Proximity and Reasonable Foreseeability v Incrementalism
Some interesting applications
 Unborn children and the wrongful life cases
 Legislative reform
DUTY OF CARE IN GENERAL
Where there is physical loss or injury (or an established category), duty is relatively
easy to identify.
 Rylands v Fletcher (1868) LR 3 HL 330
Where nature of harm is more difficult to identify or quantify, it gets tougher.
WHAT HAPPENS WHEN THE DUTY DOES NOT FIT AN ALREADY EXISTING
CATEGORY?
• What is needed is “a conceptual framework
that will promote predictability and continuity
and at the same time facilitate change when it is
needed.” (McHugh J in Perre v Apand (1999))
• Principle v Category
• Principle: Proximity and Reasonable
Foreseeability
• Category: Incrementalism
• There is still “much disorder and confusion”Kirby J Perre v Apand
WHAT IS REASONABLE FORESEEABILITY?
Question of identity of the plaintiff:
Question of law
Is the P reasonably foreseeable (as
person or member of a class of people)
likely to be affected by D’s actions?
REASONABLE FORESEEABILITY: CASE LAW
Some illustrations
Palsgraf v. Long Island R.R. Co. (1928
Chapman v. Hearse (1961)
REASONABLE FORESEEABILITY:
ESTABLISHED CATEGORY OF DUTY OF
CARE
Wyong Shire Council v Shirt (1980) 146 CLR 40 per Brennan J:
 risk must be “real” in the sense that a reasonable person would not “brush it aside
as far-fetched or fanciful.”
Koehler -v- Cerebos (Australia) Limited [2005] HCA 15
McHugh, Gummow, Hayne and Heydon JJ (majority):
“The central inquiry remains whether, in all the circumstances,
the risk of a plaintiff … sustaining a recognisable psychiatric
illness was reasonably foreseeable, in the sense that the risk
was not far fetched or fanciful” [33]
NEEDS SOMETHING ELSE…
Sullivan v Moody (2001) 207 CLR 562
“The fact that it is foreseeable… that a careless act
on the part of one person may cause harm to
another does not mean the first is subject to a
legal liability…”
PROXIMITY
Jaensch v. Coffey (1984)
(Proximity involves) notions of nearness or closeness
and embraces physical proximity (in the sense of
space and time)…, circumstantial proximity such as
an overriding relationship of employer and employee
or of a professional man and his client, and causal
proximity in the sense of the closeness or directness
of the relationship between the particular act or
cause of action and the injury sustained.” (per Deane
at 584-585)
THE HIGH POINT OF PROXIMITY
Bryan v Maloney (1995) 182 CLR 609
 “A duty of care arises under the common law of this
country only where there exists a relationship of
proximity between the parties with respect to both the
relevant class of act or omission and the relevant
damage.” (at 543)
THE MAIN FEATURES OF PROXIMITY
PROXIMITY
Degree of proximity
Physical
Circumstantial
Causal
Evaluation
Evaluation
of legal
and policy
considerations of
what is fair
and reasonable
PROXIMITY
CRITICISED
The High Court has expressed reservations about the usefulness of the notion of
proximity in recent times
 Sutherland SC v Heyman (1985)
 Hill v Van Erp (1997)
 Perre v Apand (1999)
 Modbury Triangle Shopping Centre Pty Ltd v Anzil
(2000)
PROXIMITY - CRITICISED
Sullivan v Moody (2001) 207 CLR 562
Facts
Judgment
Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:
[573] “…foreseeability of harm is not sufficient to give rise to a duty of care”
[578] “The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more
than a century … it gives little practical guidance in determining whether a duty of care exists
in cases that are not analogous to cases in which a duty has been established”
INCREMENTALISM
“It is preferable, in my view, that the law should develop novel categories, rather than
by a massive extension of a prima facie duty of care restrained only by
indefinable considerations which ought to negative, or limit the scope of the duty
or the class of persons to whom it is owed.”
 Brennan J in Sutherland Shire Council v Heyman
(1985) HCA
THE ANNS 2-STAGE TEST:
THE UK WAY
Anns v Merton London Borough Council [1978] AC 728
2-Stage Test (Wilberforce):
 It requires first a ‘sufficient relationship of proximity
based upon foreseeability’;
 and secondly considerations of reasons why there
should not be a duty of care.
AUSTRALIA ELABORATES ON ANNS
Jaensch v. Coffey (1984) per Deane J. p587-8
A duty situation could arise from the following
combination of factors
 A reasonable foreseeability of real risk of injury to P either as an
identifiable individual or a member of a class of persons, and
 The existence of proximity between the parties with respect to the act
or omission
 Absence of any rule that precludes such a duty
THE 3-STAGE CAPARO TEST
Caparo Industries Plc v Dickman [1990] 2 AC 605
 Was damage to P reasonably foreseeable
 Was relationship between P and D sufficiently proximate, and if so
 Would it be fair, just and reasonable to apply DOC
PERRE V APAND (1999) 198 CLR 180
Facts
High Court gets the chance to explore the current state of duty of Care
GAUDRON IN PERRE
Prox is too ambiguous: “First, proximity as the second stage in a three stage test has
no more content than it did when it was used as the unifying criterion…” [Gaudron
at 10]
Too powerful: would prevent incrementalism. Concern that Caparo would be used in
any case, even where there is an established duty category
Too troublesome: “Fair, just and reasonable” is troublesome:- “They are of little use, if
they are of any use at all, to the practitioners and trial judges who must apply the
law to concrete facts arising from real life activities.” [Gaudron at 12]
GAUDRON CONCLUDING
Need for predictability
 “When legal practitioners are unable to predict the outcome
of cases with a high degree of probability, the choice for
litigants is to abandon or compromise their claims or
defences or to expose themselves to the great expense and
unpredictable risks of litigation.” [Gaudron at 20]
Incrementalism is best compromise
 “Until a unifying principle again emerges, however, the best
solution is to proceed incrementally from the established
cases and principles.” [Gaudron at 25]
KIRBY J
Look at other jurisdictions
Reasonable foreseeability falls short, so proximity has a role to play:
 “If on the other hand, proximity were to be confined to its
original historical purpose as a measure of “nearness and
closeness” between the parties in dispute, it cold yet provide
a meaningful gateway, in addition to reasonable
foreseeability of harm, to afford the starting point for the
allocation of a legal duty of care or exemption from its
burden. Then it would remain necessary to weigh candidly the
competing policy considerations relevant to the imposition of
a duty of care.” [Kirby at 24]
KIRBY J APPLYING CAPARO
Foreseeability
Proximity
Policy
WRAPPING UP THE APPROACHES
The quest for the unifying principle
- Anns 2-Stage Test
- Caparo
Incremental Approach: A compromise
- Brodie v Singleton Shire Council (2001) 206 CLR 512
CHECKING IN
Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
 Proximity and Reasonable Foreseeability v Incrementalism
---------------------Some interesting applications
 Unborn children and the wrongful life cases
Legislative reform
INTERESTING DUTY APPLICATION 1
The unborn child:
 There can be no justification for distinguishing between the rights… of a
newly born infant returning home with his /her mother from hospital in a
bassinet hidden from view on the back of a motor car being driven by
his proud father and of a child en ventre sa mere whose mother is
being driven by her anxious husband to the hospital on way to the
labour ward to deliver such a child ( Per Gillard J in Watt v Rama)
- Lynch v Lynch (1991)
- Watt v Rama [1972] VR 353
UNBORN CHILD
Wrongful life cases
 Harriton v Stephens [2006] HCA 15 (9 May 2006) Appeal
dismissed (7 to 1 majority)
 Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing),
Hayne J and Callinan J in separate judgments dismissed the
Appeal
 Kirby J dissented
HARRITON V STEPHENS
Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
[244] “It was not Dr P R Stephens's fault that Alexia Harriton was
injured by the rubella infection of her mother. Once she had been
affected by the rubella infection of her mother it was not possible
for her to enjoy a life free from disability. ... Dr P R Stephens
would have discharged his duty by diagnosing the rubella and
advising Mrs Harriton about her circumstances, enabling her to
decide whether to terminate her pregnancy; he could not require
or compel Mrs Harriton to have an abortion. ”
HARRITON V STEPHENS
Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)
[249] “It is not to be doubted that a doctor has a duty to advise a
mother of problems arising in her pregnancy, and that a doctor
has a duty of care to a foetus which may be mediated through
the mother[403]. However, it must be mentioned that those
duties are not determinative of the specific question here,
namely whether the particular damage claimed in this case by
the child engages a duty of care. To superimpose a further duty
of care on a doctor to a foetus (when born) to advise the mother
so that she can terminate a pregnancy in the interest of the
foetus in not being born, which may or may not be compatible
with the same doctor's duty of care to the mother in respect of
her interests, has the capacity to introduce conflict, even
incoherence, into the body of relevant legal principle ”
DUTY TO RESCUE
There are two separate issues in rescue:
 The ‘duty’ to rescue
 The duty of care owed to the rescuer
There is no positive legal obligation in the common law to rescue
 The law does not ‘cast a duty upon a man to go to the aid of another who is in peril
or distress, not caused by him”: Hargrave v Goldman (`963)
There may however exist a duty to rescue in master servant relationships or boat
owner and guest relationships for instance
 Horsley v Maclaren (The Ogopogo) (1971) 22 DLR
One is only required to use reasonable care and skill in the rescue
THE DUTY OWED TO RESCUERS
The rescuer is generally protected : torts recognizes the existence of a duty of
care owed to the rescuer.
The issue of volenti-non fit injuria: This principle does not seem to apply in
modern tort law to rescue situations.
‘The cry of danger is the summons to relief. The law does not ignore these
reactions of the mind.. It recognizes them as normal… and places their
effects within the range of of the natural and the probable [and for that
matter the foreseeable] per Cardozo J in Wagner v International Railway Co.
(1921)
 Chapman v Hearse
 Videan v British Transport Commission (1963) (rescue attempt to get a child trespassing on
railway line)
Rescuers may recover for both physical injuries and nervous shock
 Mount Isa Mines v Pusey (1970)
The US fire-fighter’s Rule does not apply in Australia and the UK
 Ogwo v Taylor (1988) AC 431
IMPACT OF THE CIVIL LIABILITY ACT ON
THE DUTY OF CARE
The Civil Liability Act 2002 together with the Civil Liability Amendment
(Personal Responsibility) Act 2002 govern the law of negligence in NSW.
 The Civil Liability Act 2002 was enacted 28th May 2002 and received assent on
18 June 2002
Rationale behind the legislation:
 to limit the quantum of damages for personal injury and death in public liability
instances; resultantly lowering insurance premiums.
 to discourage ‘over litigation’, by the imposition of restrictions and obligations
and responsibilities upon plaintiffs and counsel
CIVIL LIABILITY ACT 2002: DUTY OF CARE
Statute overrides the common law and that any negligence claim commenced since
20 March 2002 will be governed by the Civil Liability Act 2002.
Next lecture, we will consider the application of:
 general duty of care provisions of s.5B;
 situations of obvious/inherent risks under ss.5F to I; and
 situations of dangerous recreational activities under ss.5J to N.
THE RATIONALE FOR REFORM
[I]t's my view that this country is tying itself
up in tape because of over litigation, a
long-term trend to see us litigate for
everything, to try to settle every problem
in our lives...by getting a big cash
payment from the courts....a country as
small as ours can't afford to have the
American-style culture of litigation". (Bob
Carr)
THE RATIONALE FOR REFORM
‘We need to restore personal responsibility and
diminish the culture of blame.That means a
fundamental re-think of the law of negligence, a
complex task of legislative drafting.
There is no precedent for what we are doing, either
in health care or motor accident law, or in the
legislation of other States and Territories.
We are changing a body of law that has taken the
courts 70 years to develop’ (Bob Carr)
THE APPROACH TO REFORM: GOVERNMENT’S
VIEW
We propose to change the law to exclude claims that
should never be brought and provide defences to
ensure that people who have done the right thing
are not made to pay just because they have access
to insurance (Bob Carr)
We want to protect good samaritans who help in
emergencies. As a community, we should be
reluctant to expose people who help others to the
risk of being judged after the event to have not
helped well enough (Bob Carr)
WRAP-UP
Snails
Overview of negligence
Arriving at a Duty of Care
Categories
The harder ones:
 Proximity and Reasonable Foreseeability v Incrementalism
Some interesting applications
 Unborn children and the wrongful life cases
Legislative reform
TORTS LECTURE 8
PA RT I C U L A R DU T Y A R E A S
CLARY CASTRISSION
[email protected]
(P) 02 9221 4030
ROAD MAP FOR TONIGHT
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Products Liability
Defective Structures
Professional opinions - done
Nervous Shock- done
Council and Public Authorities- done
Commercial Premises
Hotelier/Publican to Intoxicated Patron
Pure Economic Loss
PRODUCT LIABILITY
Common law:
-
Donoghue v Stevenson [1932] AC 562
-
Grant v Australian Knitting Mills [1936] AC 85
a manufacturer of products, which he sells in such a form as
to show that he intends them to reach the ultimate consumer
in the form in which they left him with no reasonable
possibility of intermediate examination, and with the
knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an
injury to the consumer’s life or property, owes a duty to the
consumer to take that reasonable care
PRODUCT LIABILITY
Relevant Statutes:
Sale of Goods Act 1923 (NSW)
Pt 4 Performance of the Contract (ss.30 to 40)
Pt 6 Actions for Breach of the Contract (ss.51 to 56)
PRODUCT LIABILITY
Relevant Statutes:
-
Fair Trading Act (NSW)
Part 4- NSW Consumer Safety and Information
Requirements
PRODUCT LIABILITY
Relevant Statutes:
-
Trade Practices Act 1974 (Cth)- now Competition and Consumer Act 2010 (from 1
January 2011)
- Absolute mammoth! Australian Consumer Law in Schedule 2 of Div 2 of Part XI
See www.consumerlaw.gov.au
PROFESSIONAL OPINION
Civil Liability Act
-
s.5O Civil Liability Act 2002 “Peer professional opinion” (ie. The UK “Bolam” test)
-
S.5P Civil Liability Act 2002 “Duty to warn” remains
DEFECTIVE STRUCTURES
Builders:
Bryan v Maloney (1995) ATR 81- 320
Architects:
Voli v Inglewood Shire Council (1963) 110 CLR 74
COMMERCIAL PREMISES
Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at 246-247
Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 at [25]-[27]).
HOTELIER/PUBLICAN TO
INTOXICATED PATRON
Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469
 Facts
 Held
COLE V SOUTH TWEED HEADS RUGBY LEAGUE
FOOTBALL CLUB LIMITED (2004) 217 CLR 469
Majority 4 to 2 (McHugh & Kirby JJ dissenting) no duty of care owed by the
Club
Gleeson CJ:
14….Although there are exceptional cases, as Lord Hope of Craighead
pointed out in Reeves v Commissioner of Police of the Metropolis[6], it
is unusual for the common law to subject a person to a duty to take
reasonable care to prevent another person injuring himself deliberately.
… A duty to take care to protect an ordinary adult person who requests
supply from risks associated with alcohol consumption is not easy to
reconcile with a general rule that people are entitled to do as they
please, even if it involves a risk of injury to themselves.
17. It is possible that there may be some circumstances in which a supplier
of alcohol comes under a duty to take reasonable care to protect a
particular person from the risk of physical injury resulting from selfinduced intoxication[7]. However, the appellant cannot succeed in this
case unless there is a general duty upon a supplier of alcohol, at least
in a commercial setting, to take such care. I do not accept that there is
such a general duty.
COLE V SOUTH TWEED HEADS RUGBY LEAGUE
FOOTBALL CLUB LIMITED (2004) 217 CLR 469
Gummow & Hayne JJ:
65. The appellant's contention that her collision with the driver's vehicle was
caused or contributed to by the Club's negligence in continuing to serve her
alcohol, when the Club knew or should have known that she was intoxicated,
was a contention that depended upon taking a number of steps, some
(perhaps all) of which may be contested.
66. First, what exactly is meant by "serving" the appellant alcohol? Does it
encompass, or is it limited to, selling alcohol which it is known that the
appellant will consume? Does it extend to selling, to others, alcohol which it
is suspected that the appellant will consume? How is the Club to control
what other patrons may do with bottles of alcohol which the Club sells them?
Given the uncertainties about how and from whom the appellant obtained
alcohol during the second half of the day, these are questions that go
directly to the formulation of the duty which is said to have been breached.
67. Secondly, the evidence of what the Club knew, or could reasonably be taken
to have known, of what alcohol the appellant took during the day was very
slight...
COLE V SOUTH TWEED HEADS RUGBY LEAGUE
FOOTBALL CLUB LIMITED (2004) 217 CLR 469
Gummow & Hayne JJ:
68. Unsurprisingly, there was no evidence which would have revealed that servants of the
Club could have (let alone reasonably should have) been able to observe how much
the appellant drank during the morning. That is, as we say, unsurprising when it is
recalled how many patrons attended the Club. About 100 or 120 had attended
breakfast. Some of those patrons stayed at, and no doubt others came to, the
clubhouse and the ground to attend the several football games to be played that day.
There was, therefore, a large and shifting population to observe. If it is said that the
Club owed the appellant a duty to monitor and moderate the amount that she drank, it
owed all its patrons such a duty...
69.Next, what level of intoxication is said to be relevant? Does it mean not lawfully able to
drive a motor car? Some drivers may not drive a motor car if they have had any alcohol.
Other drivers may be unfit to drive after very few glasses of alcohol. Does "intoxicated"
mean, as the primary judge held, "loss of self-control or judgment which is more than
of minor degree"[16]? If that is so, many drinkers will arrive at that point after very little
alcohol.
70.All of these questions would have to be answered in deciding what duty of care was
owed. None can be answered in isolation. All would require consideration of the
purpose for which it is said that the duty alleged is to be imposed.
COLE V SOUTH TWEED HEADS RUGBY LEAGUE
FOOTBALL CLUB LIMITED (2004) 217 CLR 469
Callinan J:
131 I am also of the opinion that in general - there may be some exceptional
cases - vendors of products containing alcohol will not be liable in tort
for the consequences of the voluntary excessive consumption of those
products by the persons to whom the former have sold them. The risk
begins when the first drink is taken and progressively increases with
each further one. Everyone knows at the outset that if the consumption
continues, a stage will be reached at which judgment and capacity to
care for oneself will be impaired, and even ultimately destroyed entirely
for at least a period.
PURE ECONOMIC LOSS
What is pure economic loss?
Indeterminacy
 Liability of the defendant to “an indeterminate class, for
an indeterminate time, and in an indeterminate
amount” Ultramares Corp v Douche (1931) 174 NE 441
PURE ECONOMIC LOSS
2 types:
 Negligent statements leading to pure economic loss
 Negligent acts leading to pure economic loss, and
1. NEGLIGENT MISSTATEMENT CAUSING ECONOMIC
LOSS
•
Early on: no liability. Pulsey
v Freeman (1789); Norton v Asburton [1914] AC
932
Why?
Words are more volatile than deeds. They travel fast and far
afield. They are used without being expended and take
effect in combination with innumerable facts and other
words. Yet they are dangerous and can cause vast financial
damage.. Damage by negligent acts to persons or property
on the other hand is more visible and obvious; its limits are
more easily defined. (per Lord Pearce in Hedley Byrne & Co
v Heller [1964] AC 465 at 534.
HEDLEY BYRNE & CO V HELLER
Facts
How could DOC arise? Special Relationship
 If someone possessed of a special skill undertakes quite irrespective of contract to apply that
skill for the assistance of another person who relies on such skill, a duty of care will arise’
(per Lord Morris)
Mutual Life & Citizens’ Assurance v Evatt [1971] AC 793
SHADDOCK & ASSOCIATES PTY LTD V
PARRAMATTA CC (1981) 150 CLR 225
Held
 … Whenever a person gives information or advice to another upon a serious matter in
circumstances where the speaker realises, or ought to realise, that he is being trusted to give the
best of his information or advice as a basis for action on the part of the other party and it is
reasonable in the circumstances for the other party to act on that information or advice, the speaker
comes under a duty to exercise reasonable care in the provision of the information or advice he
chooses to give.”
THE ISSUE OF SKILL
With all respect I find it difficult to see why in
principle the duty should be limited to persons
whose business or profession includes giving the
sort of advice or information sought and to
persons claiming to have the same skill and
competence as those carrying on such a business
or profession, and why it should not extend to
persons who, on a serious occasion, give
considered advice or information concerning a
business or professional transaction. (Gibbs J in
Shaddock)
LATER CLARIFICATIONS
Butcher v Lachlan Elder Realty (2004) 218 CLR 592
 “The mere fact that a person had engaged in the conduct of supplying a document
containing misleading information did not mean that that person had engaged in
misleading conduct: it was crucial to examine the role of the person in question”
(Gleeson CJ, Hayne and Heydon JJ)
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
FACTORS THE COURT WILL LOOK AT
Nature of relationship
Special skill (either actually possessing it or holding oneself to possess it)
Nature of subject matter
Reliance- reasonable reliance creates DOC, actual reliance establishes breach
Context of interchange: professional? Social? Information requested?
2. NEGLIGENT ACT CAUSING PURE ECONOMIC LOSS
Originally- no common law DOC: Leigh & Sullivan v Aliakmon Shipping Co Ltd [1986]
AC 785
Why?
What is pure economic loss caused by negligent act?
Indeterminacy
 Perre v Apand (1999) 198 CLR 180
THE ‘CALTEX PRINCIPLE’:
CALTEX OIL (AUST) PTY LTD V THE DREDGE
“WILLEMSTADT” (1976) 136 CLR 529
Facts
THE ‘CALTEX PRINCIPLE’:
CALTEX OIL (AUST) PTY LTD V THE DREDGE
“WILLEMSTADT”
(1976) 136 CLR 529
Held- Mason J
 Liability arises when: A defendant can reasonably foresee that a specific individual
as distinct from a general class of persons will suffer financial loss… This approach
eliminates the prospect that there will come into existence liability to an
indeterminate class of persons. (at 593)
AUSTRALIA BEYOND CALTEX
Indeterminacy: Johns Period Furniture v
Commonwealth Savings Bank (1980) SASR 224
Christopher v Motor Vessel “Fiji Gas” [1993] Aust Tort
Reports 81-202
Johnson Tiles v Esso Australia [2003] Aust Tort
Reports 81-962
1.Reasonable foreseeability of injury;
2. Whether there is a relationship of proximity; and
3. Identification and consideration of competing
salient features for and against the finding of a DOC
WRAP-UP
(a) Products Liability
(b) Defective Structures
(c) Professional opinions - done
(d) Nervous Shock- done
(e) Council and Public Authorities- done
(f) Commercial Premises
(g) Hotelier/Publican to Intoxicated Patron
(h) Pure Economic Loss
TORTS
LECTURE 9
Particular Duty of Care Areas Under the CLA
Clary Castrission
[email protected]
OVERVIEW FOR TONIGHT
S3B
Duty of Care- s5B
Duty Areas under the CLA
Risk (will cover in defences)
 Assumption of Risk: ss5F- I
 Recreational Activities: s5J- 5N
Public Authorities: ss40-46
Good Samaritans: ss55- 58
Volunteers: ss59
Mental Harm: ss27-33
IMPACT OF THE CIVIL LIABILITY ACT
ON THE DUTY OF CARE
The Civil Liability Act 2002 governs the law
of negligence in NSW.
 The Civil Liability Act 2002 was enacted 28th May
2002 and received assent on 18 June 2002
Rationale behind the legislation:
 to limit the quantum of damages for personal injury and death in
public liability instances; resultantly lowering insurance
premiums.
 to discourage ‘over litigation’, by the imposition of restrictions
and obligations and responsibilities upon plaintiffs and counsel
CLAIMS EXCLUDED FROM OPERATION OF THE CIVIL
LIABILITY ACT: S3B(1)
(a) civil liability of a person in respect of an intentional act that is done
by the person with intent to cause injury or death or that is sexual
assault or other sexual misconduct committed by the person
(AND A WHOLE BUNCH OF OTHERS… LIKE DUST DISEASES, SMOKING
ETC)
See s3B as it lists where CLA and Motor Accidents Compensation Act
1987 overlap
DUTY OF CARE
S 5B:(1) A person is not negligent in failing to take precautions against a risk of
harm unless:
 (a) the risk was foreseeable (that is, it is a risk of which the person knew or
ought to have known), and
 (b) the risk was not insignificant, and
 (c) in the circumstances, a reasonable person in the person’s position
would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions
against a risk of harm, the court is to consider the following (amongst other
relevant things):
 (a) the probability that the harm would occur if care were not taken,
 (b) the likely seriousness of the harm,
 (c) the burden of taking precautions to avoid the risk of harm,
 (d) the social utility of the activity that creates the risk of harm.
SECTION 3B V S5B
Deliberate Act intended to cause harm: s3B (not covered by act)
Omission which causes harm: s5B (covered by the act)
Deliberate Act without due care NOT intended to cause harm:
 Drinkwater v Howarth [2006] NSWCA 222
 Dean v Phung [2011] NSWSC 653
DUTY OF CARE IN CERTAIN SITUATIONS CONTAINED
IN THE ACT
Duty Areas
 Risk (will cover in defences)
 Assumption of Risk s5F-I
 Recreational Activities- s5J to s5N
 Public Authorities (ss40-46)
 Good Samaritans (ss55-58)
 Volunteers (ss59-66)
Mental Harm (ss27-33)
PART 5 LIABILITY OF PUBLIC & OTHER AUTHORITIES
Sections 40 to 46
Provides specific additional protection for public authorities including:
the Crown
Government departments
Local councils
Other prescribed bodies
PART 5 LIABILITY OF PUBLIC & OTHER AUTHORITIES
Section 42 sets out the principles to apply in determining whether
a public or other authority has a duty of care or has breached a
duty of care including:
(a)
(b)
(c)
(d)
the functions required to be exercised by the authority are limited by the
financial and other resources that are reasonably available to the
authority for the purpose of exercising those functions,
the general allocation of those resources by the authority is not open to
challenge,
the functions required to be exercised by the authority are to be
determined by reference to the broad range of its activities (and not
merely by reference to the matter to which the proceedings relate),
the authority may rely on evidence of its compliance with the general
procedures and applicable standards for the exercise of its functions as
evidence of the proper exercise of its functions in the matter to which the
proceedings relate.
Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270
S45- ROADS AUTHORITIES
(1) A roads authority is not liable in proceedings for civil liability to which
this Part applies for harm arising from a failure of the authority to
carry out road work, or to consider carrying road work, unless at the
time of the alleged failure the authority had actual knowledge of the
particular risk the materialisation of which resulted in the harm.
(2) Doesn’t create duty of care simply because the roads authority had
actual knowledge of the risk.
(3) Carry out roadwork defined to include construction, installation,
maintenance, inspection, repair.
This done to overturn recent HCA decision in:
 Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City Council (2001)
206 CLR 512
PORTER V. LACHLAN SHIRE COUNCIL [2006]
NSWCA 126
Facts
S45 (3) In this section:
"carry out road work" means carry out any activity in connection
with the construction, erection, installation, maintenance,
inspection, repair, removal or replacement of a roadwork within
the meaning of the Roads Act 1993 .
Roads Act 1993 (dictionary)
"road work" includes any kind of work, building or structure (such
as a roadway, footway, bridge…) that is constructed, installed or
relocated on or in the vicinity of a road for the purpose of
facilitating the use of the road as a road…. and "carry out road
work" includes carry out any activity in connection with the
construction, erection, installation, maintenance, repair, removal
or replacement of a road work.
S45 - PORTER V. LACHLAN SHIRE
COUNCIL
Hodgson JA (Beazley JA & Giles JA agreeing)
34 In my opinion, this case does come within s45, on either of two
bases.
35 First, where that part of a road used for pedestrian
purposes has been altered by the installation of a
footpath and a gutter, leaving what may be called a
nature strip in between, it is in my opinion an unduly
narrow view of what constitutes a road work to say
that, while the made footpath is a road work and the
gutter is a road work, the nature strip between them is
neither a road work nor part of a road work. In my
opinion the better view is that the whole of the area
for pedestrian purposes, comprising the made
footpath, the nature strip and the gutter, comprises a
road work.
S45 - PORTER V. LACHLAN SHIRE
COUNCIL
Hodgson JA (Beazley JA & Giles JA agreeing)
36 Second, in any event, where there is a hole in that part of a road
which is a nature strip within the area used for pedestrian
purposes, it would be road work to fill and make good that hole.
That view is not in my opinion precluded by the use of the words
“constructed” and “installed” in the definition of road work in the
Roads Act, which, unlike the relevant definition in s45 of the Civil
Liability Act, is an inclusive definition and not an exhaustive
definition. Once it is accepted that to fill and make good the hole
would be road work, then the question would arise whether failure
to do this would be failure to “carry out any activity in connection
with the construction, erection, installation, maintenance, repair or
replacement of a road work” within s45(3). In my opinion, it would
be: although the words “construction” and “installation”, and the
indefinite article “a” in front of “road work”, could be taken as
inapt for the filling and making good of a hole, on balance I think
it would be too narrow an approach to hold that the words do not
extend to such activity.
S45 - PORTER V. LACHLAN SHIRE
COUNCIL
Hodgson JA (Beazley JA & Giles JA
agreeing)
 37 On either basis, s45 applies: on the first basis, the allegation would be that the
respondent failed to maintain a road work, and on the second basis, it would be
that the respondent failed to construct or install a road work.
S.45 ACTUAL KNOWLEDGE:
NORTH SYDNEY COUNCIL –V- ROMAN [2007]
NSWCA
Facts 27
At Trial
S.45 NORTH SYDNEY COUNCIL-VROMAN
Held, allowing the appeal, per Basten JA (Bryson JA agreeing):
1. For the purposes of s.45 actual knowledge must be found
in the mind of an officer within the council having
delegated (or statutory) authority to carry out the
necessary repairs.
2. The evidence demonstrated that no Council officer at a
decision-making level had “actual knowledge” of the
particular pothole and therefore the appellant did not have
such knowledge. Accordingly, the exception to s.45 was not
engaged and the statutory immunity prevailed.
Note McColl JA (dissenting)
PARTS 8 GOOD SAMARITANS
S56
s57

For the purposes of this Part, a "good samaritan" is a
person who, in good faith and without expectation of
payment or other reward, comes to the assistance of
a person who is apparently injured or at risk of being
injured.

(1) A good samaritan does not incur any personal civil
liability in respect of any act or omission done or
made by the good samaritan in an emergency when
assisting a person who is apparently injured or at risk
of being injured.
PART 8: GOOD SAMARITANS
S58 where liability not exempted
 Where good samaritan caused the injury in the first place
 The good samaritan was under the influence of drugs/alcohol AND failed to take
reasonable care
 The good samaritan was impersonating emergency service worker, policeman or
pretending to have the skills to address the current injury
PART 9: VOLUNTEERS (SS59-66)
Section 60: Defines community work to mean work that is not for private financial
gain and that is done for a charitable, benevolent, philanthropic, sporting,
educational or cultural purpose. It excludes community service orders imposed by
a court.
VOLUNTEERS (CONT)
Section 61: No civil liability for a volunteer doing community work, but does not
extend to:
 Criminal acts (s62)
 Acts while intoxicated AND volunteer failing to exercise reasonable care (63)
 Actions outside the scope of the charitable organisation contrary to instructions
(s64)
 Where the volunteer is required by State law to be insured (s65)
 Or motor vehicle accidents (s66)
MENTAL HARM
At common law- only type of pure mental harm where this liability is recognised
psychiatric illness
Thus grief or sorrow doesn’t sound damages: Mount Isa Mines v Pusey (1970) 125
CLR 383
MENTAL HARM PRE ANNETTS
Suffer from a recognised psychiatric illness
Be a person of reasonable fortitude
Be subject to a sudden shock
Have directly perceived the accident or its immediate aftermath
THE 2 MAJOR CASES
Both heard together:
 Tame v NSW (2002) 211 CLR 317
 Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
AFFECTING FACTORS
Was illness result of sudden shock?
 “Cases of protracted suffering, as opposed to ‘sudden shock’ could raise difficult
issues of causation and remoteness of damage. Difficulties of that kind are more
appropriately analysed with reference to the principles of causation and
remoteness, not through an absolute denial of liability.” (Gleeson CJ, Gaudron,
Gummow , Kirby and Hayne JJ in separate j’ments)
Direct perception of distressing events?
Relationship between primary and secondary victim
Relationship between Plaintiff and Defendant
IPP REPORT
“... the law has said that a duty to avoid causing mental harm would be imposed only
in relation to harm caused by ‘shock’; that this duty was owed only to persons
who were physically near to the scene of the ‘shocking’ events at the time they
occurred, or who witnessed their ‘immediate aftermath’; and that the duty was
owed only to those who witnessed the shocking events or their aftermath with
‘their own unaided senses’.” (138, 9.12)
IPP REPORT CONTINUED
“The fundamental proposition which Tame/Annetts seems to establish is that reasonable foreseeability of mental
harm is the only precondition of the existence of a duty of care. It also establishes, however, that a duty of
care to avoid mental harm will be owed to the plaintiff only if it was foreseeable that a person of ‘normal
fortitude’ might suffer mental harm in the circumstances of the case if care was not taken. This test does
not require the plaintiff to be a person of normal fortitude in order to be owed a duty of care. It only requires
it to be foreseeable that a person of normal fortitude in the plaintiff’s position might suffer mental harm. In
this sense, being a person of normal fortitude is not a precondition of being owed a duty of care.” (138,
9.13) (Original emphasis)
MENTAL HARM
27 Definitions
In this Part:
"consequential mental harm" means mental harm that is a
consequence of a personal injury of any other kind.
"mental harm" means impairment of a person’s mental condition.
"negligence" means failure to exercise reasonable care and skill.
"personal injury" includes:
(a) pre-natal injury,
(b) impairment of a person’s physical or mental condition, and
(c) disease.
"pure mental harm" means mental harm other than consequential
mental harm.
MENTAL HARM
29 Personal injury arising from mental or nervous shock
In any action for personal injury, the plaintiff is not prevented from recovering
damages merely because the personal injury arose wholly or in part from mental
or nervous shock.
MENTAL HARM
30 Limitation on recovery for pure mental harm
arising from shock
(1) This section applies to the liability of a person ("the defendant”)
for pure mental harm to a person ("the plaintiff") arising wholly
or partly from mental or nervous shock in connection with
another person ("the victim") being killed, injured or put in peril
by the act or omission of the defendant.
(2) The plaintiff is not entitled to recover damages for pure mental
harm unless:
(a) the plaintiff witnessed, at the scene, the victim being killed,
injured or put in peril, or
(b) the plaintiff is a close member of the family of the victim.
MENTAL HARM
32 Mental harm—duty of care
(1) A person ("the defendant") does not owe a duty of
care to another person ("the plaintiff") to take care
not to cause the plaintiff mental harm unless the
defendant ought to have foreseen that a person of
normal fortitude might, in the circumstances of the
case, suffer a recognised psychiatric illness if
reasonable care were not taken.
Codifies the common law test for foreseeability of risk of
mental harm in Tame v NSW; Annetts v Australian
Stations Pty Ltd [2002] HCA 35
MENTAL HARM
33 Liability for economic loss for consequential mental
harm
A court cannot make an award of damages for economic
loss for consequential mental harm resulting from
negligence unless the harm consists of a
recognised psychiatric illness.
OVERVIEW FOR TONIGHT
S35
Duty of Care- s5B
Duty Areas under the CLA
Risk (will cover in defences)
 Assumption of Risk: ss5F- I
 Recreational Activities: s5J- 5N
Public Authorities: ss40-46
Good Samaritands: ss55- 58
Volunteers: ss59
Mental Harm: ss27-33
PRACTICE QUESTION
Arnold was a serving police officer who attended the scene of an horrific train derailment in Katoomba NSW, whereby six people were killed and many
were injured.
He was among the first ones at the scene following the derailment and was involved in the rescue operation by providing emergency first-aid and
assisting the injured from the carriages.
Arnold searched through the train where he saw dead bodies in horrible condition, as well as badly injured people. One of the m, he recognised to be his
high-school friend, Steve.
Arnold suffered post traumatic stress syndrome, nervous shock and major depressive disorder.
State Rail had failed to ensure the train’s “deadman’s” safety device was operating
Arnold brought a claim for damages against State Rail alleging he had suffered psychiatric injury due to the negligence of State Rail in failing, inter alia,
to ensure the train’s “deadman’s” safety device was operating, or was designed so as to operate in the event of the incapacitation of the driver.
Did State Rail owe Arnold a Duty of Care?
TORTS
LECTURE 6
BREACH OF DUTY
CLARY CASTRISSION
[email protected]
ROADMAP FOR TONIGHT
S5B
Understanding standard of care
Foreseeability of risk
Calculus of negligence
An Application: Waverly Council v Ferreira [2005]
Res Ipsa Loquitur
Professional Negligence
DUTY OF CARE
S 5B:(1) A person is not negligent in failing to take precautions against a risk of
harm unless:
 (a) the risk was foreseeable (that is, it is a risk of which the person knew or
ought to have known), and
 (b) the risk was not insignificant, and
 (c) in the circumstances, a reasonable person in the person’s position
would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions
against a risk of harm, the court is to consider the following (amongst other
relevant things):
 (a) the probability that the harm would occur if care were not taken,
 (b) the likely seriousness of the harm,
 (c) the burden of taking precautions to avoid the risk of harm,
 (d) the social utility of the activity that creates the risk of harm.
ADEELS PALACE PTY LTD V MOUBARAK
ADEELS PALACE PTY LTD V BOU NAJEM
[2009]
HCA 48
Facts
Application of CLA
 [13] “Although ss5B and 5C appear beneath the heading “Duty of Care,” that
heading is apt to mislead… Both provisions are evidently directed to questions of
breach of duty.”
COUNCIL OF THE CITY OF GREATER TAREE V
WELLS [2010] NSWCA 147 (1 JULY 2010)
Facts
KIRBY J in Romeo v Conservation Commission (young woman fell 6.5m off cliff)
“It is one thing to hold that a person owes a duty of care of some kind to another. But the
critical question is commonly the measure or scope of that duty. The failure to distinguish
these concepts can only lead to confusion.”
COUNCIL OF THE CITY OF GREATER TAREE V
WELLS [2010] NSWCA 147 (1 JULY 2010)
Quoted McColl JA in RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
“5B is not a self-contained statement of the circumstances in
which a liability for negligence will arise. Rather, subsection 1
sets out three preconditions that must co-exist before a
liability in negligence arises, when the type of negligence
alleged is failure to take precautions against a risk of harm
arising…. Subsection 2 provides a non-exhaustive list of
factors the court is required to take into account in deciding
whether the third of those preconditions exists. Section
5B presupposes the existence of the law of negligence, and
operates against its background.”
BREACH OF DUTY
Standard of Care
 What standard of care is owed?
 Was risk of injury to the P Reasonably foreseeable?
 Standard of care owed by the reasonable person in the circumstances
 What would the reasonable person do in the D’s position
Duty breached
 Did the D’s actions fail to meet that standard?
 Probability of risk
 Magnitude of harm
IF SO
 Was the response of the d to this reasonable?
 Calculus of negligence (from s5B), where relevant, consider
 Reasonability of precautions
 Social utility
 Any relevant professional or statutory standards
BREACH OF DUTY FROM SHIRT
If reasonable person in defendant’s position would have foreseen risk to the P, then:
“... it is then for the tribunal of fact to determine what a reasonable man would do by way of
response to the risk. The perception of the reasonable man’s response calls for a
consideration of the magnitude of the risk and the degree of the probability of its
occurrence, along with the expense, difficulty and inconvenience of taking alleviating
action and any other conflicting responsibilities which the defendant may have. It is only
when these matters are balanced out that the tribunal of fact can confidently assert what
is the standard of response to be ascribed to the reasonable man placed in the
defendant’s position.”
Applied in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009]
NSWCA 263 (22 September 2009)
RTA v Dederer, Gummow J at [69]:
“What Shirt requires is a contextual and balanced assessment of the reasonable
response to a foreseeable risk.”
COMPARING DUTY TO BREACH
TEST FOR BREACH
1.
Was the risk of injury to P reasonably foreseeable? SCOPE OF DUTY
 RTA v Dederer (2007) 238 ALR 761
 “It is only through the correct identification of the risk that one can assess what
a reasonable response to that risk would be” (Gummow J at [59])
2.
If so, was the response of the defendant to this risk reasonable? BREACH

What would the reasonable person, in the defendant’s position (with the
knowledge that they either had or ought to have had) have done in the
circumstances out of which the harm arose?

Did the D meet the requisite standard of care?
IF NOT, there has been a breach of duty
WAS RISK REASONABLY FORESEEABLE?
(S5B(1)(A))
Romeo v Conservation Commission (NT) (1998) 192 CLR 431
 It is quite wrong to read past authority as requiring that any reasonably foreseeable
risk, however remote, must in every case be guarded against (Kirby J at 480)
Check to see if:
 Risk is not far-fetched or fanciful (or insignificant, under s5B)
RISK NOT FAR-FETCHED OR FANCIFUL
The Wagon Mound (No. 2) [1967] 1 AC 617
Wyong SC v Shirt (1980) 146 CLR 40
Chapman v Hearse (1961) 106 CLR 112
“CALCULUS OF NEGLIGENCE” UNDER 5B(2)
Probability of harm occurring if care not taken
Likely seriousness of harm
Burden of taking precautions
Social Utility
BREACH OF DUTY – LIKELIHOOD OF INJURY
Section 5B(2)(a) the probability that the harm would occur if care were not taken
Bolton v Stone [1951] AC 850
RTA v Dederer (2007) 238 ALR 761
BREACH OF DUTY – SERIOUSNESS OF HARM
Section 5B(2)(b) the likely seriousness of the harm
Adelaide Chemical & Fertilizer Co. v Carlyle (1940) 64 CLR 514
Paris v Stepney Borough Council [1951] AC 367
BREACH OF DUTY – COST OF AVOIDING HARM
Section 5B(2)(c) the burden of taking precautions to avoid the risk of harm
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
BREACH OF DUTY – SOCIAL UTILITY OF THE ACT OF
THE DEFENDANT
Section 5B(2)(d) the social utility of the activity that creates the risk of harm.
Watt v Hertfordshire County Council
“It is one thing to take risks when driving for some commercial purpose with no
emergency, but quite another to take risks for life and limb.” (Lord Denning
HOW DUTY AND BREACH WORK TOGETHER–
S.5B(1) & (2)
Waverley Council v Ferreira [2005] NSWCA 418
Facts
ISSUE
S5B(1) 1: THE FENCE AND THE UNDERGROWTH
 Risk of harm foreseeable?
 Risk of harm significant?
 In circumstances, would reasonable person have taken precautions?
S.5B(1)(A) - WAVERLEY COUNCIL V
FERREIRA
Foreseeability of harm
34 The initial element to be determined under s5B(1) is
whether the risk was foreseeable. As s5B(1)(a) makes
plain, that involves inquiring whether the risk in question is
one of which the defendant knew or ought to have known.
The relevant risk in relation to the removal of the fence
and undergrowth was the risk that children might use the
fence and undergrowth to facilitate their access to the roof
and, when on the roof, might fall to the ground.
Doubleday v Kelly [2005] NSWCA 151
“The actual events as they happened are not the
circumstances to which consideration of foreseeability of risk
of injury is applied; what is to be considered is foresight in
more general terms of risk of injury.” per Bryson JA
S.5B(1)(A) - WAVERLEY COUNCIL V
FERREIRA
Ipp JA (Spigelman CJ & Tobias JA agreeing)
43 In my opinion, the relevant risk of injury was
that a child such as Martin might fall to the
ground once he had climbed on to the roof. In
my opinion, that was a foreseeable risk in
terms of s 5B(1)(a). It was a risk of which the
Council knew or ought to have known. It is
immaterial that the Council might not have
been able to foresee the precise mechanism
that caused Martin to fall.
S5B(2) IN FERREIRA
s5B(2)
 Probability of harm if care not taken
 Likely seriousness of harm
 Burden of taking precautions to avoid risk
 Social utility of activity which creates risk
S.5B(2) - WAVERLEY COUNCIL V
FERREIRA
Ipp JA (Spigelman CJ & Tobias JA agreeing)
51 Section 5B(2) provides a framework for deciding what
precautions the reasonable person would have taken to avoid the
harm and involves weighing the factors set out in ss5B(2)(a) and
(b) against those in ss5B(2)(c) and (d) (subject, of course, to
each being applicable in the particular circumstances of the
case).
52 In my opinion, the probability as to whether a reasonable person
would have taken precautions against a risk of harm (referred to
in s5B(2)(b)) must be considered objectively by reference to the
particular circumstances of the case (and the state of mind of
the defendant is not relevant to this inquiry).
SO WOULD REASONABLE COUNCIL
REMOVE THE FENCE AND
UNDERGROWTH?
Ipp JA (Spigelman CJ & Tobias JA agreeing)
53 ... s5B(2)(a) requires consideration to be given to
the objective probability of harm occurring if care
were not taken. In my view, there was a reasonable
possibility of harm occurring if the fence and
undergrowth were not removed and children were
not prevented from using the fence or the
undergrowth as a stepping stone to gain access to
the roof. By s5B(2)(a), this possibility must be taken
into account.
54 The likely seriousness of the harm, should the risk
materialise, was severe injury or death (s 5B(2)(b))
(that is, in consequence of falling from the roof to
the ground).
S.5B(2) - WAVERLEY COUNCIL V
FERREIRA
55 Garling DCJ found that the fence served no
practical purpose and in my view he did not
thereby err. There was a gate in the fence and
the gate had no lock. It would not have been
difficult to climb over the fence. There is
nothing to suggest that there was a reason to
retain the undergrowth. Both the fence and
the undergrowth served no apparent
utilitarian or aesthetic purpose and the
burden of removing them would have been
small (s 5B(2)(c)).
S.5B(2) - WAVERLEY COUNCIL V
FERREIRA
56 I have already mentioned that s5B(2)(d) (the
social utility of the activity that creates the risk
of harm) is not relevant in this case.
57 Weighing the factors set out in ss5B(2)(a)
and (b) against those in s5B(2)(c), I conclude
that a reasonable Council would have taken
the precautions of removing the fence and the
undergrowth and Garling DCJ did not err in so
holding.
SO WHAT ABOUT THE GRILLE?
Did the council breach its duty by not putting a grille on the skylight?
- IN SOLVING THESE PROBLEMS:
1. Find out if risk or harm was foreseeable (question of law) under 5B(1)
2. THEN, balance up the cost of the precautions (under s5B(2)- as directed by
5B(1)(c)
RES IPSA LOQUITUR
Elements:
 Accident must raise presumption of negligence
 Examples: Chaproniere v Mason (1905) 21 TLR 644, Mahon v Osborne [1939] 2
KB 14
 Thing must be under D’s control
 Actual cause of accident must not be known
 Barkway v South Wales Transport [1950] AC 185
 Nominal Defendant v Haslbauer (1967) 117 CLR 448
Effect
WRAPPING UP BREACH OF DUTY
Standard of Care
 What standard of care is owed? (Q of law)
 Standard of care owed by the reasonable person in the circumstances
 What would the reasonable person do in the D’s position
Duty breached
 Did the D’s actions fail to meet that standard?
 Was risk of injury to the P Reasonably foreseeable?
 Degree of risk
 Magnitude of harm
IF SO
 Was the response of the d to this reasonable?
 Calculus of negligence (from s5B) AND where relevant, consider
 Reasonability of precautions
 Social utility
 Any relevant professional or statutory standards
SPECIAL BREACH OF DUTY PROVISIONS UNDER THE
ACT
Professional Negligence (standard of care)
PROFESSIONAL NEGLIGENCE
Sections 5O & 5P
“Peer professional opinion” (or Bolam) test for
determining the appropriate standard of care
 Bolam v Friern Hospital Management Committee [1957] 2
All ER 118
 Sidaway v Governors of Bethlehem Royal Hospital [1985]
UKHL1
 “The Bolam principle may be formulated as a rule that a
doctor is not negligent if he acts in accordance with a
practice accepted at the time as proper by a responsible
body of medical opinion even though other doctors adopt a
different practice. In short, the law imposes the duty of
care: but the standard of care is a matter of medical
judgment.” (Lord Scarman at 881)
F v R (1983) 33 SASR 189: per King CJ at 194
“The ultimate question is not whether the defendant’s conduct accords with the
practices of his profession or some part of it, but whether it conforms to the
standard of reasonable care developed by the law.”
Rogers v Whitaker (1992) 175 CLR 479
 Facts
 Relevance of professional opinion v conclusiveness
PROFESSIONAL NEGLIGENCE
5O Standard of care for professionals
(1) A person practising a profession ( "a professional" )
does not incur a liability in negligence arising from the
provision of a professional service if it is established
that the professional acted in a manner that (at the
time the service was provided) was widely accepted in
Australia by peer professional opinion as competent
professional practice.
(2) However, peer professional opinion cannot be relied on
for the purposes of this section if the court considers
that the opinion is irrational
(3) The fact that there are differing peer professional
opinions widely accepted in Australia concerning a
matter does not prevent any one or more (or all) of those
opinions being relied on for the purposes of this section.
(4) Peer professional opinion does not have to be
universally accepted to be considered widely accepted.
2ND READING SPEECH, HANSARD 23 OCTOBER 2002.
“The bill also creates an additional defence to alleged professional negligence if the
professional acted in a manner that was widely accepted in Australia by pure
professional negligence if the professional opinion as competent professional
practice.”
 The Premier, Minister for Arts and Minister for Citizenship.
DOBLER V KENNETH HALVERSON AND ORS; [2007]
NSWCA 335
Facts
Trial
At Court of Appeal
S5P- FAILURE TO WARN OF RISKS
This Division does not apply to liability arising in connection with the giving of (or the
failure to give) a warning, advice or other information in respect of the risk of
death of or injury to a person associated with the provision by a professional of a
professional service.
BREACH OF DUTY- THE TEST
Standard of Care
 What standard of care is owed? (Q of law)
 Standard of care owed by the reasonable person in the
circumstances
 Professionals acting in line with professional opinion: s5O and 5P
 What would the reasonable person do in the D’s position
Duty breached
 Did the D’s actions fail to meet that standard? (Question of fact)
 Was risk of injury to the P Reasonably foreseeable? (Shirt and 5B)
 Degree of risk
 Magnitude of harm
 Special case: public authorities: s43, roads s45
IF SO
Was the response of the d to this
reasonable?
Calculus of negligence (from s5B) AND
where relevant, consider
Reasonability of precautions
Social utility
Res Ipsa Loquitur (evidentiary rule that could help when there is no other explanation for
the accident)
ROADMAP FOR TONIGHT
S5B
Understanding standard of care
Foreseeability of risk
Calculus of negligence
An Application: Waverly Council v Ferreira [2005]
Res Ipsa Loquitur
Professional Negligence
TORTS LECTURE 7
C A U S AT I O N & D A M A G E
CLARY CASTRISSION
[email protected]
NEW HIGH COURT CASE IN 2012
Woolworths Limited v Strong & Anor [2010] NSWCA 282 (2 November 2010)
http://www.austlii.edu.au/cgibin/sinodisp/au/cases/nsw/NSWCA/2010/282.html?stem=0&synonyms=0&qu
ery=title(strong%20and%20woolworths%20)
Strong v Woolworths Ltd [2012] HCA 5 (7 March 2012)
http://www.austlii.edu.au/cgibin/sinodisp/au/cases/cth/HCA/2012/5.html?stem=0&synonyms=0&query=titl
e(strong%20and%20woolworths%20)
See SMH article
http://www.smh.com.au/nsw/high-court-backs-amputees-580000-chipslip-payout20120307-1ukkn.html
TONIGHT’S LECTURE
1. Understanding ‘damage’ in negligence claims
2. Factual Causation
1.The But For test
2.Limitations of the But For Test
3.Interesting situations
4.Novus Actus Interveniens
3. Legal Causation (remoteness)
1.Egg-Shell Skull Cases
4. s5D of the CLA
5. Bringing Negligence together…
DAMAGE IN NEGLIGENCE
Duty of care
Negligence
Breach
Damage
DAMAGE IN NEGLIGENCE
Damage is the gist of the action in Negligence
The scope of actionable damage (s5 CLA):
 property
 personal
 Mental: s31
 pure economic loss
Damage must be actual for compensation; no cause of action
accrues until damage
2 STEP PROCESS
1. Factual causation
2. Legal causation (remoteness)
1. FACTUAL CAUSATION
For P to be successful in an action in Negligence, D’s
breach of duty must cause damage to P or his/her
property
Fitzgerald v Penn (1954) 91 CLR 268 at 277-8:
 It is a mistake to attempt either to explain ‘causation’
as a general conception to a jury or to define for them
a degree of closeness which must subsist in the
connection between wrongdoing and damage. To begin
with, it is not really necessary, because a jury is
expected to have a sound common sense idea of what
is meant by saying that one fact is a cause of another,
and it is all ultimately a matter of common sense.
March v Stramare
Chappel v Hart
1. FACTUAL CAUSATION (CONT)
THE ‘BUT FOR’ TEST
Would the P still have suffered the harm but for D’s
negligence?
• Barnett v Chelsea and Kensington Hospital [1969] 1
QB 428
1. FACTUAL CAUSATION (CONT)
LIMITATIONS ON THE ‘BUT FOR’ TEST
1. Trouble with eliminating ‘contributing reasons’
2. Two or more tortious acts
March v Stramare (1991) 171 CLR 506 per Deane J
(at 523):
 [The ‘But For’ test should not be the exclusive test
as it] “would lead to the absurd and unjust position
that there was no ‘cause’ of an injury in any case
where there were present two independent and
sufficient causes of the accident in which the injury
was sustained.” (at 523)
WHAT HAPPENS WHEN YOU CAN’T CONCLUSIVELY
PROVE THE DEFENDANT CAUSED THE HARM?
McGhee v National Coal Board (1973) 1 WLR 1
And in Australia…
Chappel v Hart (1998) 1995 CLR 232
McHugh J at [27]:
If a wrongful act or omission results in an increased
risk of injury… and that risk eventuates, the
defendant’s conduct has materially contributed to the
injury… whether or not other factors have also
contributed.
NOVUS ACTUS INTERVENIENS
D will avoid liability if the subsequent act that exacerbated/caused the injury was not
reasonably foreseeable: March v Stramare.
Lord Wright in The Oropesa [1943] P 32
 “To break the chain of causation it must be shown that there is
something I will call ultroneous, something unwarrantable, a new
cause which disturbs the sequence of events, something which can be
described as either unreasonable or extraneous or extrinsic”
Haber v Walker [1963] VR 339
Very hard to prove:
 Chapman v Hearse
 Kavanagh v Akhtar (1998) 45 NSWLR 588
Where it has worked
 McKew v Holland & Hannon & Cubitts Ltd [1969] 3 All ER 1621
2. LEGAL CAUSATION (REMOTENESS)
Whether the scope of negligence should extend to the
harm caused.
 Beavis v Apthorpe (1962) 80 WN (NSW) 852 at 856
per Herron CJ:
In one sense, almost nothing is quite unforeseeable,
since there is a very slight mathematical chance,
recognizable in advance, that even the most freakish
accidents will occur. In another, nothing is entirely
foreseeable, since the exact details of a sequence of
events never can be predicted with complete
confidence.
REMOTENESS
Were the injuries a reasonably foreseeable consequence
of the act?
Wagonmound No. 1 [1961] AC 388
Wagonmound No. 2 [1967] AC 617
Chapman v Hearse
Type of harm being foreseeable
 Tremain v Pike [1969] 3 All ER 1303
 Bradford v Robinson Rentals Ltd [1967] 1 All ER 267
 Hughes v Lord Advocate [1963] AC 837
EGG-SHELL SKULL CASES
Negretto v Sayers [1963] SASR 313 at 318.
Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501
Golder v Caledonian Railway Co (1902) 5 F (Ct of Sess) 123
S5D CLA
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ( "factual causation"), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused ( "scope of liability").
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary
condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant
things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person
had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any)
that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether o r not and why responsibility for
the harm should be imposed on the negligent party.
STRONG V WOOLWORTHS [2012] HCA 5
Facts
Issue at High Court
Held
“A necessary condition is a condition that must be present for the occurrence of the
harm. However, there may be more than one set of conditions necessary for the
occurrence of particular harm and it follows that a defendant’s negligent act or
omission which is necessary to complete a set of conditions that are jointly
sufficient to account for the occurrence of the harm will meet the test of factual
causation within s5D(1)(a).:
(per French CJ, Gummow, Crennan and Bell JJ at 20)
TONIGHT’S LECTURE
1. Understanding ‘damage’ in negligence claims
2. Factual Causation
1.The But For test
2.Limitations of the But For Test
3.Interesting situations
4.Novus Actus Interveniens
3. Legal Causation (remoteness)
1.Egg-Shell Skull Cases
4. s5D of the CLA
5. Bringing Negligence together…
BRINGING IT ALL TOGETHER- YOUR TURN
Paul owned a restaurant in Liverpool (Sydney) called “The Cavern Club,” which was licensed to serve alcohol between midday and 4am each day. The
restaurant, on the 2nd floor of a building, had never had any violent incidents before, apart from one occasion three years ago when a bikie gang called “The
Stones” yelled abuse at some patrons.
On Australia Day Eve last year, The Cavern Club was open for a dinner and dance- 295 people booked in advance to attend. It was attended largely by groups
of families, including children and the elderly. Alcohol was served to patrons. Paul figured that because there had never been any issues in his restaurant,
there was no need to hire any security guards for the evening.
A fight broke out between two women, Linda and Yoko on the dancefloor. Chairs, plates and bottles thrown. Onlookers joined in and before you knew it, it was
an all-out brawl.
One man, John, was hit in the face by Ringo, drawing blood. John left and came back with a gun. When another man, George, saw John come into the
restaurant with a gun, he ran into the kitchen and slipped. John followed him into the kitchen, and despite George begging and pleading to not be shot, he
was shot in the leg.
John then went and found Ringo, who drew the first blood, and shot him in the stomach.
Advise George and Ringo (together) as to whether they can sue The Cavern Club. Do not discuss damages.
BRINGING IT ALL TOGETHER
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (10 November 2009)
Unanimous Decision by French CJ, Gummow, Hayne, Heydon and Crennan JJ
•
DUTY OF CARE: Whether D owed DOC to prevent injury from conduct of other patrons
•
BREACH: Whether licensed security personnel ought to have been provided
•
CAUSATION: Whether absence of licensed security personnel was a necessary condition for the shootings to
take place
DUTY OF CARE
•
Liquor Act 1982 s125 (now repealed in favour of Liquor Act 2007- s 73)
•
licensee must not permit any indecent, violent or quarrelsome conduct. Licensee
permitted to ‘turn out’ people engaged in this.
BREACH OF DUTY
•
s5B
1) A person is not negligent in failing to take precautions against a risk of harm
unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to
have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have
taken those precautions.
(2) In determining whether a reasonable person would have taken precautions
against a risk of harm, the court is to consider the following (amongst other
relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
CAUSATION
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ( "factual
causation"), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so
caused ( "scope of liability").
(2) In determining in an exceptional case, in accordance with established principles, whether
negligence that cannot be established as a necessary condition of the occurrence of harm
should be accepted as establishing factual causation, the court is to consider (amongst other
relevant things) whether or not and why responsibility for the harm should be imposed on the
negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who
suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to
paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have
done is inadmissible except to the extent (if any) that the statement is against his or her
interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other
relevant things) whether or not and why responsibility for the harm should be imposed on the
negligent party.
CAUSATION CONTINUED…
 “It must also be recognised that before theCivil Liability Act and
equivalent provisions were enacted, it had been recognised[37]
that the "but for" test was not always a sufficient test of causation.
But as s 5D(1) shows, the "but for" test is now to be (and has
hitherto been seen to be) a necessary test of causation in all but
the undefined group of exceptional cases contemplated by
s 5D(2).” [55]
LAW OF TORTS
DEFENCES TO
NEGLIGENCE
ROADMAP FOR TODAY
Contributory Negligence
 Common Law Development
 Statutory Apportionment
Voluntary Assumption of Risk
Illegality
DEFENCES TO ACTIONS IN NEGLIGENCE
COMMON LAW
Contributory negligence
Voluntary assumption of risk, volenti non fit injuria
Illegality
CIVIL LIABILITY ACT
Pt 1A - ss5F to I: Assumption of Risk
- ss5R to T: Contributory Negligence
Pt 5
- Public Authorities
Pt 6 Intoxication
Pt 7 Self-Defence & Recovery by Criminals
CONTRIBUTORY NEGLIGENCE
Earlier approaches in Common Law:
The complete defence (Williams v
Commissioner for Road Transport (1933)
50 CLR 258)
Butterfield v Forrester (1809) 11 East 60
- The last opportunity rule
The development of apportionment legislation
CONTRIBUTORY NEGLIGENCE
AT COMMON LAW: THE NATURE
OF THE P’S CONDUCT
D must prove:
1. The P was at fault or negligent
Children: Doubleday v Kelly [2005] NSWCA 151
Intoxication: Joselyn v Berryman
2. The fault or negligence contributed to the injury or loss suffered by P (causation)
3. The damage was a reasonably foreseeable consequence of the P’s fault or negligence
1.
FAULT
JOSLYN V BERRYMAN; WENTWORTH SHIRE
COUNCIL V BERRYMAN [2003] HCA 34 (18 JUNE
2003)
Facts
Trial – Boyd-Boland ADCJ found for Mr Berrymen but reduced
damages by 25% for contributory negligence.
JOSLYN V BERRYMAN
• NSWCA - Meagher J (leading judgment)
• "His Honour, as I have said, made a finding of 25%
contributory negligence against the plaintiff. The only action
of his which could possibly have amounted to contributory
negligence was permitting Miss Joslyn to drive instead of
him….One must also, if one concludes that at the time of
handing over Mr Berryman was too drunk to appreciate what
was happening, a situation as to which there is no evidence in
the present case, judge the question of contributory
negligence on the hypothesis that the plaintiff did have
sufficient foresight to make reasonable judgments. But,
although at the time of the accident the blood alcohol levels of
Miss Joslyn and Mr Berryman were estimated as being
0.138g/100ml and 0.19g/100ml respectively, there is no
evidence that either of them were drunk at the time, and
certainly no evidence that at the time Mr Berryman had any
reason to think that Miss Joslyn was affected by intoxication.
Indeed, quite to the contrary. Of the people who were present
who gave evidence, all said that Miss Joslyn showed no signs
of intoxication. His Honour so found.”
JOSLYN V BERRYMAN
HC – McHugh, Gummow, Callinan, Kirby & Hayne JJ allowed the appeal (ie.
Overturned the decision of the NSWCA)
JOSLYN V BERRYMAN
Gummow & Callinan JJ –
“A person in the position of Mr Berryman ought to have known,
and in fact would have known (if he had not precluded himself
from knowing by his own conduct) that Ms Joslyn's capacity
must have been impaired, and probably grossly so, by the
amount of alcohol she had drunk, not only during the
immediately preceding evening, but also on the night before
that. Furthermore Mr Berryman either knew, or ought to have
known that the effects of two consecutive evenings of
immoderate consumption would have had a compounding
effect of tiredness and reduced attentiveness upon both of
them... Factually the Court of Appeal erred in not finding that
Mr Berryman's and Ms Joslyn's faculties, and accordingly their
capacities to observe, react, assimilate, and deal with
information and to drive a motor vehicle must have been
seriously impaired by the consumption of alcohol”.
MOTOR ACCIDENTS COMPENSATION ACT
1999 S 138
A finding of contributory negligence must be
made in the following cases:
 where the injured person or deceased person has been
convicted of an alcohol or other drug-related offence in
relation to the motor accident…
 Where the driver’s ability to control vehicle was
impaired by alcohol and the P as an adult voluntary
passenger was/ought to have been aware of this…
 Where the injured party was not wearing set
belt/protective helmet, and was required by law to wear
such belt/helmet
CIVIL LIABILITY ACT 2002
s5S – a court may determine a reduction of
100% if it is just and equitable to do so
: compare Wynbergen –v- Hoyts Corp (1997) 149
ALR 25
s5T – a court may reduce a claim for damages
under the Compensation to Relatives Act
1897 for contributory negligence of the
deceased
S50(4) – a presumption of contributory
negligence of 25% if the plaintiff was
intoxicated at the time of injury
2. CAUSATION
Question of fact- was the damage suffered by the P caused caused by their
own negligence?
- Monie v Commonwealth [2007] NSWCA 230
3. REASONABLY FORESEEABLE
Type of injury must be reasonably foreseeable in the circumstances.
- Gent-Diver v Neville [1953] St R Qd 1
CONTRIBUTORY
NEGLIGENCE OF RESCUERS
Azzopardi v Constable; Azzopardi v Thompson
[2006] NSWCA 319
THE SUBSTANCE OF APPORTIONMENT
LEGISLATION
- Courts directed to reduce damages recoverable
to what it thinks to be ‘just and equitable.’
Law Reform (Miscellaneous) Act 1965 (NSW) s9
(1) Where any person suffers damage as the result
partly of his/her own fault and partly of the fault of any
other persons,
(a) a claim in respect of that damage shall not be
defeated by reason of the fault of the person suffering
the damage, and
(b) the damages recoverable in respect thereof
shall be reduced to such extent as the court thinks just
and equitable having regard to the claimant’s share in
the responsibility for the damage
WHAT IS JUST AND EQUITABLE?
Pennington v Norris (1956) 96 CLR 10
“By culpability we do not mean moral blameworthiness but degree of
departure from the standard care of the reasonable man.” (at 16)
Reasonableness must be judged in light of all the circumstances: Joslyn v
Berryman
- Wynbergen -v- Hoyts Corporation P/L (1997)
CONTRIBUTORY NEGLIGENCE UNDER
THE CIVIL LIABILITY ACT
s5R (standard of CN- same as negligence)
s5S (CN can defeat a claim)
- In determining the extent of a reduction in damages by reason of CN, a
court may determine a reduction of 100% if the court thinks it just and
equitable to do so, with the result that the claim is defeated.
WRAPPING UP CONTRIBUTORY
NEGLIGENCE
At common law: D must prove
1. The P was at fault or negligent
2. The fault or negligence contributed to the
injury or loss suffered by P (causation)
3. The damage was a reasonably foreseeable
consequence of the P’s fault or negligence
Statutory Apportionment
VOLUNTARY ASSUMPTION OF RISK
VOLENTI NON FIT INJURIA
Rootes v Shelton (1967) 116 CLR 383
The elements
 P must have full knowledge of the risk
 P must have voluntarily accepted the physical and legal risk
Hard to prove
 Rootes v Shelton (1967) 116 CLR 383
VOLENTI V CONTRIBUTORY NEGLIGENCE
Ipp Committee Report (2002):at 8.23
Since the introduction of the defence of
contributory negligence, the defence of
voluntary assumption of risk has become more
or less defunct. This is because any conduct
that could amount to voluntary assumption of
risk would also amount to contributory
negligence .
Courts prefer the defence of contributory
negligence because it enables them to
apportion damages…
- Difference: CN requires degree of fault, volenti
doesn’t
ELEMENT 1:
P MUST HAVE FULL KNOWLEDGE OF RISK
Subjective test: very difficult for the D to prove as mere knowledge alone does not
imply consent.
 Canterbury Municipal Council v Taylor [2000] NSWCA 24
 Carey v Lake Macquarie City Council [2007] Aust Tort Reports 81
 Leyden v Caboolture Shire Council [2007] QCA 134
ELEMENT 2:
D TO PROVE VOLUNTARY ACCEPTANCE OF
RISK
2 elements:
The P must have voluntarily accepted that there was a:
1. Physical risk (through injury), and
2. A risk that reasonable care would not be taken by the D (legal risk)
- Imperial Chemical Industries Ltd v Shatwell
[1965] AC 656
Rootes v Shelton (1967) 116 CLR 383
“To say that the P voluntarily assumed the risk of colliding with an
obstruction in the water is one thing. To say that the D would
carelessly fail to warn him of the presence of such an obstruction or
would fail to exercise due care in steering the launch of which he had
control is a very different proposition…” (at 395)
VAR IN THE WORK PLACE
Smith v Baker & Sons P
The defence is not constituted by knowledge of
the danger and acquiescence, but by an
agreement to run the risk and to waive your
rights to compensation
CIVIL LIABILITY ACT 2002
Assumption of Risk (Part 1A, Division 4)
-
Does not replace the common law, rather:
a)
Rebuttable presumption that a P was aware of a risk of harm if that risk is an ‘obvious
risk’: s5G
b)
No duty to warn of obvious risk, unless P requests info about the risk, warning is
required by law: s5H
c)
Excludes liability for materialisation of an inherent risk: s5I Wyong
Council v Vairy [2004] NSWCA 247
Shire
SPORT AND RECREATIONAL ACTIVITIES
By engaging in a sport or pastime the participants may be held to have
accepted the risk which are inherent in the sport: Agar v Hyde (2000)
201 CLR 383
 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460
Inherent risk only those which are naturally incidental to the game being
played and any extraordinary, although foreseeable, risks incidental to
that sport.
CIVIL LIABILITY ACT 2002
Recreational Activities (Part 1A, Division 5)
s5K- definitions
In this Division: "dangerous recreational activity" means
a recreational activity that involves a significant risk of
physical harm. "obvious risk" has the same meaning
as it has in Division 4. "recreational activity" includes:
(a)any sport (whether or not the sport is an organised
activity), and
(b)any pursuit or activity engaged in for enjoyment,
relaxation or leisure, and
(c)any pursuit or activity engaged in at a place (such as a
beach, park or other public open space) where people
ordinarily engage in sport or in any pursuit or activity
for enjoyment, relaxation or leisure.
CIVIL LIABILITY ACT 2002
Recreational Activities (Part 1A, Division 5)
S5L- no liability for harm suffered by the
materialisation of obvious risks of dangerous
recreational activities
Fallas v Mourlas
s5M- no duty of care for recreational activity
where there is a risk warning
SWAIN V WAVERLEY MUNICIPAL
COUNCIL (2005)
HOW THE HC MAY VIEW
MR MENZIES QC:It is the CivilACTIVITY”
Liability Act 2002 and it Division 5 “Recreational
“RECREATIONAL
Activities” - - GUMMOW J: What does it say? What is the critical provision?
MR MENZIES QC: Well, 5J applies only in respect of liability in negligence for harm
to a person (“the plaintiff”) resulting from a recreational activity engaged in by
the plaintiff.
Recreational activity is divided into two kinds. There is;
“dangerous recreational activity” means a recreational activity that involves a
significant risk of physical harm.
That is in the definition section 5K, and:
“recreational activity” includes:
(a) any sport . . .
(b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and
(c) any pursuit or activity engaged in at a place (such as a beach . . .
5L No liability for harm suffered from obvious risks of dangerous recreational
activities . . .
5M No duty of care for recreational activity where risk warning –
so that liability would seem to be excluded if a risk warning is put up, assuming
this is a recreational activity. If, on the other hand, as Chief Justice Gleeson
points out, this might well be regarded as a dangerous recreational activity,
you do not even have to put a sign up, that is the end of it.
SWAIN – INSIGHT TO HOW
THE HC MAY VIEW
KIRBY
J: It does not sound as
though this is
“RECREATIONAL
ACTIVITY”
categorised. That is paragliding and things of
that kind, I would have thought, because they
say, “such as on a beach” in the definition of
“recreational activity”.
MR MENZIES QC: True.
GLEESON CJ: What about recreational activities
that are dangerous for some people, like people
who cannot swim, and not dangerous for
others?
MR MENZIES QC: I have no doubt that at some
point that is going to entertain your Honours.
GUMMOW J: Here we are again, more imperfect
law reform.
WRAPPING UP VAR
VAR is tough to for the D to prove as D would have to prove:
a) P had full knowledge of the risk and
b) Voluntarily accepted the physical and legal risk.
ILLEGALITY
Who has been acting illegally?
-
The P?
-
The D?
-
Both?- Joint Illegal Enterprise
-
D may be able to be absolved from negligence liability
JOINT ILLEGAL ENTERPRISE
D must prove:
1. They and the P were jointly engaged in an illegal activity, and
2. There was a connection between the illegal activity and the negligent
conduct
Jackson v Harrison (1978) 138 CLR 438
- The conduct within the illegal enterprise must
be connected to the alleged negligence
PLAINTIFF ILLEGAL ACTIVITY
At common law:
- Just because the P was engaged in criminal conduct at time of injury
doesn’t necessarily prevent duty from being owed: Hackshaw v Shaw
(1984) CLR 614
CIVIL LIABILITY ACT 2002
Illegality
S54 – criminals not to be awarded damages if:
(a) on the balance of probabilities, the conduct constitutes a “serious
offence”, and
(b) that conduct contributed materially to the risk of death, injury or
damage.
ROADMAP FOR TODAY
Contributory Negligence
 Common Law Development
 Statutory Apportionment
Voluntary Assumption of Risk
Illegality
WHAT IS NUISANCE?
An unreasonable conduct that materially interferes with the ordinary
comfort of human existence
OUR MISSION FOR TONIGHT
What do we do about the woman across the road who destroyed my 21st?
THE TWO ‘SIDES’ OF NUISANCE
NUISANCE
PRIVATE
PUBLIC NUISANCE
PRIVATE NUISANCE- THE ROADMAP
1. Establishment
(a) Unlawful interference with someone’s interest in
land
(b) Balance of rights
(c) Intangible interference
2. Who can sue?
(a) Proprietary interest
(b) Family members?
3. Who can be sued?
(a) Person who created the nuisance
(b) Others
4. Defences
NUISANCE IN CONTEXT
Nuisance v Negligence
Nuisance v Trespass
1(A) INTERFERENCE WITH LAND
The substantial interference with the plaintiff's use of
his/her land by the unreasonable conduct of the
defendant: Halsey v Esso Petroleum [1961]
 Unlawful interference with P’s interest in land
 Misfeasance:
 St Helens Smelting Co v Tipping (1965)
 Bonic v Fieldair (1999)
 Nonfeasance:
 The tort protects against interferences with the enjoyment of land
 Munro v Southern Dairies [1955]
1(a) 1. ESTABLISHMENT- INTERFERENCE
“Inconvenience materially interfering with
the ordinary comfort physically of
human existence, not merely according
to dainty modes and habits of living, but
according to plain and sober and simple
notions among the English people.”
- Knight Bruce VC in Walter v Selfe (1851)
P 1(a)
BAER INVESTMENTS PTY LTD V
UNIVERSITY OF NEW SOUTH WALES
[2007] NSWLEC 128;
Facts
Issues
 Whether respondent's trees damaged applicant's sewer pipes.
 Whether cost of replacing pipes should be apportioned
Held:
1(a)
O'NEILL V FROST [2007]
NSWLEC 400; BC200705292
Facts
Issue:
 Whether removal of fallen tree should be ordered.
 Whether tree with structural concerns should be removed.
Held: Application granted in part.
VELLA V OWNERS OF STRATA
PLAN 8670 [2007] NSWLEC 365;
BC200704853
1(a)
Facts
Applicant applied for removal of trees six years after aware of
damage.
Issue:
 Whether trees warranted removal because damaged pavement.
 Whether damage should be apportioned because applicant aware of damage.
Held: Application granted in part.
1(a)
HUNT V BEDFORD — [2007]
NSWLEC 130; BC200701745
Facts
Held: Application dismissed.
1(B) THE BALANCING OF INTERESTS
“Sic utere tuo ut alienum non laedas” (“Use your own thing so as not to
harm that of another”)
1(B) ESTABLISHMENT- BALANCING
“A dweller in towns cannot expect to have as pure air, as free
from smoke, smell, and noise as if he lived in the country, and
distant from other dwellings, and yet an excess of smoke, smell,
and noise may give a cause of action, but in each of such
cases it becomes a question of degree, and the question is in
each case whether it amounts to a nuisance which will give a
right of action.”
- Lord Halsbury in Colls v Home & Colonial Stores
[1904]
- Munro v Southern Dairies [1955], Hasley v Esso Petroleum [1961]
1(b)
SOUTH WALES MATTER NO
2391/96 (31 JULY 1997)
The law in this sort of case is tolerably clear. The law
of nuisance, the tort upon which the plaintiffs sue, is
not to protect people, but to protect property values.
That is so because it is an ancient remedy that has
come down through the ages. Thus the mere fact
that one is disturbed by noise or one gets irritated
by prying children or one's privacy is invaded is not
sufficient to make out the tort of nuisance…. The
plaintiffs are, however, entitled not to have the value
of their property diminished by the noisy activities of
the defendants (Young J)
1(b)
SOUTH WALES MATTER NO
2391/96 (31 JULY 1997)
"A useful test is perhaps what is reasonable
according to the ordinary usages of
mankind living in society, or more correctly
in a particular society." (per Lord Wright in
Sedleigh-Denfield v. O'Callaghan (1940)
AC, at p 903 )
1(B) HOW DO WE BALANCE?
Unreasonable is based on the reasonable person, and what ordinary ‘give and take’
limits are.
 Locality: Munro v Southern Dairies
 Time, and duration: Wherry v KB Hutcherson Pty Ltd (1987) NSW
 Nature of activities: Thompson-Schwab v Costaki (1956), McKenzie v Powley (1916)
 Availability of alternatives: Cohen v Perth (2000)
SEIDLER V LUNA PARK RESERVE TRUST (1995)
NSW UNREPORTED
Facts
Rollercoaster Hours:
 Non-School Holidays
 Friday: 5.30pm-10pm
 Sat: 10am-7pm
 Sun: 11am-7pm
 School Holidays
 Thurs: 10am-8pm
 Fri/Sat: 10am-11pm and Sun: 11am-7pm.
Held
LUNA PARK CASES
Seidler v Luna Park Reserve Trust (1995)
Luna Park Site Amendment Noise Control Act 2005
 19A Legal proceedings and other noise abatement action
(1) No criminal proceedings, no civil proceedings (whether at law or in equity)
and no noise abatement action may be taken against any person with respect
to the emission of noise from the Luna Park site.
(2) The emission of noise from the Luna Park site does not constitute a public
or private nuisance.
(3) This section does not apply to or in respect of noise that exceeds the
maximum permissible noise level at the closest residential facade
STREET & 7 ORS V LUNA PARK SYDNEY
PTY LTD & 1 OR [2006] NSWSC 230 (6
APRIL 2006)
 Ps’claim
 D’s claim
 Held (Brereton J)
THE NATURE OF D’S CONDUCT
D’s conduct must be unreasonable.
 In general act/conduct which is
reasonably necessary for the normal user
of land would not be considered
unreasonable
Malicious intent
 Hollywood Silverfox Farm Ltd v Emmett
2. WHO CAN SUE?
P must have proprietary interest in the affected land to
be able to sue
“A sulphurous chimney in a residential area is not nuisance
because it makes householders cough and splutter but
because it prevents them taking their ease in their
gardens. It is for this reason that the plaintiff in an action
for nuisance must show some title to realty.”
- Newark, The Boundaries of Nuisance
(1949)
Malone v Laskey [1907]
DOESN’T INCLUDE P’S VIEW OF PROPERTY
Victoria Park Racing & Recreation Grounds v Taylor (1937)
WHO CAN SUE? THE CASES
 Oldham v Lawson [1976] VR 654
 Khorasandjian v. Bush [1993] Q.B. 727,
 Hunter v Canary Wharf
“If a P, such as the daughter in Khorsandjian, is
harassed by abusive telephone calls, the gravamen
of the complaint lies in the harassment which is just
as much an abuse, or indeed an invasion of her
privacy, whether she is pestered in this way in her
mother’s house, or even in her car with a mobile
phone. In truth, what the CA appears to have been
doing was to exploit the law of private nuisance in
order to create by the back door a tort of harassment
which was only partially effective in that it was
artificially limited to harassment which takes place at
her home. I myself do not think this is a satisfactory
manner in which to develop the law, especially when
the step taken was inconsistent with another decision
in the CA in Malone”- LORD GOFF
2(CONT) ABNORMAL PLANTIFFS
For sensitive uses of land, interference not
unreasonable unless it would have been
unreasonable to ordinary use of land.
 Robinson v Kilvert (1889)
3. WHO MAY BE SUED?
The creators of the nuisance
 Fennel v Robson Excavations Pty Ltd (1977)
 Hargrave v Goldman (1963)
 De Jager v Payneham & Magill Lodges (1984)
CHECKING IN: PRIVATE NUISANCE
1. Establishment
(a) Unlawful interference with someone’s interest in
land
(b) Balance of rights
(c) Intangible interference
2. Who can sue?
(a) Proprietary interest
(b) Family members?
3. Who can be sued?
(a) Person who created the nuisance
(b) Others
4. Defences
YOUR TURN
Steve’s own a home at 8 Wombeyan Ct, Wattle Grove. Kit and
Carlos live in a house adjoining Steve. Kit and Carlos are really
security conscious and have installed floodlights and camera
surveillance equipment. The floodlights and surveillance
equipment are positioned in a way that they illuminate Steve’s
backyard and may record video tape everything that occurs
there.
Steve uses his backyard to hang up his clothes, doing his
gardening, and sitting and enjoying his radio. He has become
distressed since the electronic gear has gone in, and he no longer
feels he can enjoy his backyard as he did before. The floodlight
system is activated by a sensor, which switches the lights on with
movement or noise (such as a movement in Steve’s backyard).
When the equipment is activated the lights come on and stay on
on for 10 mins, and the camera may be activated. Steve contends
that he is suffering realth issues as a result of the continued
PUBLIC NUISANCE: THE ROADMAP
1. Establishment
(a) Act/omission which materially affects collective
rights of the public
2. Who can sue?
(a) The state
(b) A plaintiff who suffers ‘special damage’
3. Who can be sued?
(a) Person who created the nuisance
(b) Others
4. Defences
5. Remedies
PUBLIC NUISANCE V PRIVATE NUISANCE
What’s the difference??
1. INTERFERENCE: QUEUES OBSTRUCTING
PUBLIC HIGHWAYS AND ROADS
Silservice Pty Ltd v Supreme Bread Pty Ltd
Harper v GN Haden & Sons (1933)
THE DEGREE OF INTERFERENCE
It is not every interference however slight that constitutes an actionable
nuisance; the interference must be substantial and material York Bros v
Commissioner of main Roads
2. WHO CAN SUE?
P may sue in public nuisance only if he/she can establish special damage above and beyond
that suffered by other members of the affected public
 Walsh v Ervin
“I cannot see that the appellants here can make out a case
that they were denied free uninterrupted access to the
roadway by the conduct of the respondents in imposing the
parking restrictions in question. True, the parking restrictions
were in adjajcent streets, but it cannot be said that access to
and from the roadway was denied or seriously impaired…
As the learned trial judge observed, “The shorter time limit
did not materially alter the position.’ The fact that parking
was limited to 1hr duration in portions of two streets near the
restaurant could not in law constitute an actionable nuisance
on he ground that potential customers were prevented from
getting to the restaurant (continuing).”
It is difficult to see how the conduct in question of the respondents
constituted a nuisance… all the available parking space could have
been taken by residents and their visitors at any given point of time.”
- per Helman J
PUBLIC BENEFIT AND PUBLIC NUISANCE
In general public benefit is not a defence that can defeat P’s objections to
D’s conduct
Where the interference to P is not substantial, the public benefit argument
may be used to reinforce the justification to the inconvenience caused
to P
PUBLIC NUISANCE: THE ROADMAP
1. Establishment
(a) Act/omission which materially affects collective
rights of the public
2. Who can sue?
(a) The state
(b) A plaintiff who suffers ‘special damage’
3. Who can be sued?
(a) Person who created the nuisance
(b) Others
4. Defences
5. Remedies
4. DEFENCES
Statutory authority
 York Bros v Commissioner for Main Roads (1983)
Consent
5. REMEDIES
Abatement of nuisance
Injunction to prevent the continuation
Damages
 Bone v Seale [1975]
 Oldham v Lawson (no. 1) [1976]
 Challen v McLeod Country Club [2001]
 Shelfer v City of London Electric Lighting [1895]
WRAP-UP
NUISANCE
PRIVATE
PUBLIC NUISANCE
MISSION ACCOMPLISHED?
Well? What about my 21st?

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