ContentsStructures.........................................................................................................................3

Negligence.......................................................................................................................3

General Negligence.........................................................................................................3

Is there a duty of care?.................................................................................................3

Standard.......................................................................................................................4

Foreseeability...............................................................................................................5

CAUSATION...............................................................................................................10

Intervening cause.......................................................................................................11

Has the P suffered actual damage?...........................................................................13

Come to overall conclusion as to whether or not there is an action in negligence.....13

Defences to a negligence action.................................................................................14

Remedies for negligence action.....................................................................................20

Pecuniary Loss...............................................................................................................22

Loss of Earning Capacity:...........................................................................................22

Loss of Expectation of Life:........................................................................................23

Gratuitous Services Provided to the Plaintiff:.............................................................23

Hospital and Medical Care:........................................................................................24

Gratuitous Services Provided by the Plaintiff:.............................................................24

Treatment of Contingencies:......................................................................................25

Collateral Benefits:.....................................................................................................25

Calculation of Lump Sum...........................................................................................25

Non-Pecuniary Loss...................................................................................................26

Damages and Death......................................................................................................28

Fatal Accidents Legislation.........................................................................................30

Mental Harm...................................................................................................................31

Duty of care:...............................................................................................................32

Occupiers Liability..........................................................................................................35

Duty of Care...............................................................................................................35

Pure Economic Loss......................................................................................................36

When will a duty of care be owed not to cause pure economic loss?.........................37

What is required for PEL duty of care?.......................................................................37

Statutory Authorities.......................................................................................................38

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Duty of Care:..............................................................................................................38

Misfeasance/Nonfeasance distinction........................................................................39

‘Routine’ v ‘Failure to Act’ cases.................................................................................39

Establishing a duty of care in failure to act cases: McHugh J’s six-point test............39

Highway Authorities.......................................................................................................43

Reasons for overturning Highway Immunity Rule.......................................................44

Supposed purpose of the rule....................................................................................44

When will a liability be established – apply ordinary negligence principles................44

Liability for Animals........................................................................................................47

Cattle Trespass –.......................................................................................................47

Scienter –...................................................................................................................47

Legislation and Dogs..................................................................................................48

Negligence..................................................................................................................49

Breach of Statutory Duty................................................................................................49

Duty 4 Elements:....................................................................................................50

nature of the duty........................................................................................................50

Determining breach –.................................................................................................51

Determining Causation...............................................................................................51

Defences....................................................................................................................51

Trespass to the Person..................................................................................................51

Battery........................................................................................................................51

Assault........................................................................................................................52

False Imprisonment....................................................................................................52

Trespass to Land...........................................................................................................53

Trespass to land.........................................................................................................53

Trespass to airspace..................................................................................................53

Continuing trespass....................................................................................................54

Licences.....................................................................................................................54

Exceeding a licence....................................................................................................55

Private Nuisance............................................................................................................55

Interests protected......................................................................................................55

Factors to consider when determining reasonable user.............................................56

Liability........................................................................................................................57

Defences....................................................................................................................58

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Remedies...................................................................................................................59

Structures IssuesLawApplicationConclusion

NegligenceDutyStandardBreach and ForeseeabilityCausation and remotenessDamagesConclusion

General Negligence

Is there a duty of care?a. Identify if established category, then cite authority

b. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Your neighbour in law refers to anyone that is directly affected by your acts or omissions (Donohoe v Sevenson 1932)

c. McHugh’s 6 stage approach established in Crimmins v Stevedoring Industry Finance Committee (1990):

1. Reasonable foreseeability – Was it reasonably foreseeable that the act would result in injury?

2. Did the defendant have a duty under statute to protect a specific class from risk of harm?

a. Did the plaintiff fall under this specific class?

3. Would such a duty impose liability with respect to the defendant?

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4. Vulnerability – Were the plaintiff’s interests vulnerable?

5. Knowledge – Did the defendant know of the risk of harm to the plaintiff if it did not exercise its powers?

6. Policy considerations – Are there any other supervening reasons in policy to deny the existence of a duty of care?

d. Salient features test: Looking at the features of a particular case to determine whether a duty of care should be owed

e. Policy considerations: To bring into judicial consideration the broader social interest of the public at large eg

Home Office v Dorset Yacht Co. Ltd [1970]: limited liability to avoid indeterminate liability by excluding only those immediate to prison riot could recover damages.

Gala v Preston – Joint illegality of civil and criminal law, will not uphold a wrong act

D’Orta-Ekenaike v Victoria Legal Aid (2005) – Solicitors’ immunity so judicial disputes finalised

Cran v State of NSW [2004] - Police Duty of Care to those in custody

f. State the scope of the duty.

Standardg. State that standard is an objective test, a question of law (Glasgow v Muir)h. State what the standard of care is (eg reasonable, competent, skilled..)i. Note any changes in the standard of care – characteristics of P or D

Emergency (Broughton v Competitive Foods) D is child = lower standard (McHale v Watson) D is physically disabled = lower standard (Roberts v Ramsbottom) D has actual knowledge = may raise standard (NSW CLA WHAT SECTION) D has special skill = may raise standard (Rogers v Whittaker) D’s inexperience will lower standard only if P knew or ought to have known of

the inexperience and voluntarily exposes themselves to that risk (Cook v Cook) D holds themselves out to posses a skill but do not = may raise standard

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P with known disability = may raise standard (Paris v Stepney BC) P is intoxicated = does not change standard (Parsons v Randwick MC) P has special skill = may lower standard (Bus v Sydney CC) Specialist Ps do not owe a higher standard of care Heydon v NRMA Ltd (2000)

j. State that breach is a question of fact.

o Section 5B Civil Liability Act 2002 (NSW):

(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.

Foreseeability

i. Foreseeability is a question of lawii. is one of a class of persons who might foreseeably be damaged by D’s

negligence?iii. The damage suffered is of a kind that might foreseeably be caused by D’s

negligence?iv. The victim is taken as found (egg-shell skull principle (Shorey))v. Legally significant cause of the harm suffered? (Pledge v RTA)

o Apply Remoteness: Was the damage, loss or injury reasonably foreseeable?

The defendant cannot be liable for an unforeseeable risk

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The foreseeable risk must not be farfetched or fanciful (Wyong v Shirt)

o Remoteness:

Tests:

- Polemis and Furness Withy & Co Pty Ltd [1921] - Was the damage incurred by the plaintiff a direct consequence of the defendant’s breach which wasn’t too remote?

- Wagon Mound No. 1 and No.2 - Was the type of damage sustained reasonably foreseeable?

Reasonable Foreseeability test:

- Hughes v Lord Advocate [1963]:

- Manhole covered by a tent, surrounded by paraffin lamps. Eight year old boy entered the tent and knocked the lamps into the manhole, causing an explosion

- Held: It was reasonably foreseeable that someone, especially a child, would get into the tent, knock over the lamps and cause a reasonably foreseeable result, an explosion

- Gittani Stone Pty Ltd v Pavkovic [2007]:

- Respondent shot by a colleague

- Did the employer’s lack of response to previous injuries cause the respondents injury?

- Held: Employer did breach its duty of care to the respondent. That kind of injury was reasonably foreseeable as a result of the breaches of duty

o Section 5B Civil Liability Act 2002 (NSW):

(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.

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(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.

Calculus of Negligence (Wyong Shire v Shirt)

Was the risk of injury foreseeable? 1. Was some kind of damage likely? (Tame v NSW)

Was the risk not insignificant? “Not farfetched fanciful” (Wyong Shire) What would a reasonable person do in response to the risk?

1. Probability? (Bolton v Stone) The less likely it is that there could be an accident that will give rise to damage or injury, the less likely it is that the court will be able to find the defendant liable

2. Likely seriousness of harm? (RTA v Dederer 2007a. Probabilityb. The magnitude or gravity of the harm

Paris v Stepney Borough Council (1951) Higher gravity of harm, more precautions must be taken

c. Characteristics of P may be relevant3. Burden of taking precautions? (Romeo v Conservation Comm)

a. Practicality of remedyCaledonian Colleries v Spiers 1957 practical remedies available ought to be taken

b. Cost, convenience, difficulty (Romeo)c. However, D financial position irrelevant (PQ v Red Cross)

4. Justifiability – Does the type of industry or activity the defendant is involved in carry any inherent risks or dangers

Watt v Hertfordshire County Council [1954]:

Fireman injured while on route to an emergency. Although the station had a vehicle equipped to carry the jack, the vehicle was out. The jack could not be fastened; it rolled forward an injured the plaintiff

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Held: The risk needs to be balanced with the end result to be achieved. The saving of a life or limb (regular duties of a fireman) justifies taking considerable risk

5. Reasonable response to the risk – Graham Barclay Oysters Pty Ltd v Ryan:

Options were to cease harvesting for an unspecified period of time after heavy rainfall, ceasing to sell oysters altogether, and relocation away from human beings

Actions would have been highly destructive to the company

Probability was low – this was the first recorded outbreak of Hepatitis A by oysters at Wallis Lake

Held: Magnitude of the risk and degree of probability does not justify the expense and inconvenience of preventing the risk of harm

6. Social utility (Daborn v Bath Tramways)

Woods v Multi-Sport Holdings (2002):

Indoor cricket case. Woods was hit in the eye with an indoor cricket ball and suffered injury. Multi-Sport failed to provide any warning or install any warning signs to warn the plaintiff of the dangers of indoor cricket, in particular the risk of serious eye injury. Multi-Sport also failed to provide the plaintiff with any or any proper eye protection or guarding while playing indoor cricket

Probability was low – 2 serious eye injuries a year in 12,500 players in WA

Reasonableness depends on all circumstances, of which obviousness of risk is only one

Romeo v Conservation Commission of NT:

Appellant was injured when she fell 6 ½ meters from the top of a cliff into a beach. She was at a beach party at the time and had consumed a lot of alcohol. The cliff was unfenced at the point where the appellant fell

Practicability was low – not practicable to fence the entire area

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Impedes on social utility to fence whole area - would cause detriment to the environment and enjoyment of the area by the public

Vairy v Wyong Shire Council (2005):

Young man (33) dived into water and struck his head on the sand below. At times members of the local surf lifesaving club had warned people of the risk. In 1978 a young man had become quadriplegia at this site. Respondent was responsible for 27 kilometres of coastline. Appellant argued that if there was a warning sign he would not have dived

Scope of the duty must be assessed by reference to the background of the whole magnitude of risks that may crystallise over the length of the shoreline, the care, control, management of which is the responsibility of the council

The scope of the duty did not include an obligation to warn of the risk

Probability of the occurrence of the risk was low

Practicality was low – was not reasonable for the council to mark every point where it was safe to enter the water

No duty to erect a warning sign

Respondent could reasonably expect that a person of the appellant’s age, knowledge and experience would not need a warning that to dive from the platform could be a dangerous thing to do.’

7. Section 5B Civil Liability Act 2002 (NSW):

k. (1) A person is not negligent in failing to take precautions against a risk of harm unless:

1. (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

2. (b) the risk was not insignificant, and

3. (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

l. (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):

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1. (a) the probability that the harm would occur if care were not taken,

2. (b) the likely seriousness of the harm,

3. (c) the burden of taking precautions to avoid the risk of harm,

4. (d) the social utility of the activity that creates the risk of harm

5. Standardsa. Professional standards? b. Customary standards?

Breach is not necessarily breach of duty. (Tucker v McKann)

c. Statutory standards?i. Breach is not necessarily breach of duty. (Tucker v

McKann)d. Anticipation of carelessness

i. Emp anticipate c’lness of emp’ee (McLean v Tedman)ii. Cannot anticipate everything (Derrick v Cheung)

m. State overall whether the duty has been breached.

CAUSATION Is there causation in fact?

1. “but for” test (March v Stramare)2. The “but for” test gives rise to difficulty in cases where there are two or

more acts or events which would each be sufficient to bring about the plaintiffs injury

o Section 5D Civil Liability Act:

(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:

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- (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.

S 5D Statutory Interpretation:

Cox v NSW (2007) :

Plaintiff suffered profound and enduring psychological problems as a result of being persistently bullied at primary school – his parents had a history of depression

Negligence established was found to be a necessary condition of the occurrence of harm – not essential (s 5D) that the negligence be the sole cause of the harm

Intervening causea. Will only break chain of causation if

i. They are voluntary;ii. They are causally so independent as to be termed

coincidental;iii. As a matter of commonsense, and experience, they were

not the cause of the relevant loss or damage

n. Multiple Cumulative Causes:

Situation where the plaintiff’s loss is a result of a combined effect of several loss causing factors:

Plaintiff suffers different loss causing factors at different times which operate cumulatively; or

Several loss causing factors operate at the same time to produce the total loss

Bonnington Castings Ltd v Wardlaw [1956]:

Dust on the lung caused by two sources – one from an old, poorly cared for machine and one from the plaintiffs workplace – defendant liable as machine should have been maintained

Amaca Pty Ltd v Ellis (2010):

Plaintiff negligently exposed to asbestos by more than one defendant, having worked in unsafe conditions with unsafe products

Plaintiff died of lung cancer – also a heavy smoker for 26 years

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Plaintiffs action failed, as the breach cannot merely be a possible cause, it must be a probable cause – the relative risks of sustaining lung cancer due to smoking were much greater than the risks of sustaining lung cancer due to asbestos exposure

o. Multiple Sufficient Causes:

Plaintiffs loss is the result of several factors, each of which was sufficient without the others to cause the loss

Baker v Willoughby:

1. Plaintiff was involved in a car accident in 1964 – plaintiff sustained further injury in a shooting in 1967

2. The first defendant was liable for the injuries between 1964 and 1967 and for the losses that would have flowed from the original injury had the robbery not intervened

Jobling Associated Dairies Ltd:

1. Plaintiff sustained a back injury at work in 1973 – in 1976 it was found that the plaintiff was suffering from a condition which resulted in total incapacity to work

2. Employer only liable for damages from 1973 to 1976

p. Novus Actus Intervieniens – New intervening act:

1. Determines whether defendant should be liable for the entire injury or only liable until the break of causation

q. Loss of opportunity Recognised in pure economic loss cases (eg when a solicitor fails to institute

legal proceedings within the time limitation period – client can sue for loss of opportunity)

o Not in medical negligence

o Chappel v Hart (1998):

Plaintiff’s oesophagus perforated during surgery, resulting in damage to her vocal chords and loss of voice. Doctor did not warn plaintiff of risks. Plaintiff was anxious, persistent and enduring, and would have delayed the surgery if she had been warned of the risks

Failure to warn and loss of chance case

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The starting point in establishing causation is the but for test – however by itself the but for test is not sufficient – Also to be considered are common sense and policy considerations

r. Multiple tortfeasors? Are joint concurrent tortfeasors if:

1. Vicarious liability (emp emp’ee)2. Principle and agent3. Concerted or common action (Thompson v ACTV)

Are several concurrent tortfeasors if:1. Independent acts or omissions combine to produce same loss or damage2. Champman v Hearse

P may bring an action against each or all of the concurrent tortfeasors1. Each concurrent tortfeasor may seek contribution from the others

The contribution recoverable is “to be just and equitable having regard to the extent of that person’s responsibility for the damage”

Has the P suffered actual damage?a. Identify the damage that is suffered.b. Is it a form of harm recognised at law?

i. Harm Physical Injury;ii. Damage to Property;

iii. Mental Harm;iv. Pure Economic Loss

c. i. The manner in which the injury is causedi. Intervening Act of the Plaintiff;

ii. Intervening Act of a Third Party

d. The identity of the defendant eg Public Bodies

e. Apply Civil Liability Act

Come to overall conclusion as to whether or not there is an action in negligence

.

Defences to a negligence actionContributory negligence

Davies v Mann (1842):

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- Last opportunity rule: ‘where an accident was caused by the combined negligence of the plaintiff and the defendant, however slight the negligence of the plaintiff might have been in comparison to the defendant, the loss was left to lie where it fell and the plaintiff could not recover damages unless the defendant was found to have had the last opportunity of avoiding the harm’

Joslyn v Berryman (2003):

- Contributory negligence eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question

- The issue is not whether a reasonable person in the intoxicated passenger’s condition would have realised the risk of injury in accepting a lift from an intoxicated person. It is whether an ordinary, reasonable person – a sober person – would have foreseen the risk of injury

- If a reasonable person would have known that they were exposed to risk of injury in accepting a lift from an intoxicated driver, and voluntarily entered the car, then the plaintiff is guilty of contributory negligence

Caterson v Commissioner for Railways (1973):

- Contributory negligence in situations of sudden emergency

- Where a plaintiff has, due to the defendants negligence, been placed in a situation where he can only escape from inconvenience by taking a risk, the reasonableness of the plaintiffs action is to be determined by weighing the degree of inconvenience which he will be subjected to against the risk that he takes in order to escape from it

Section 151N Workers Compensation Act 1987 (NSW):

- (3) In an action for the award of damages founded on a breach of a statutory duty imposed on a defendant, contributory negligence on the part of the injured worker is not a complete defence, but the damages recoverable are to be reduced by such percentage as the court thinks just and equitable having regard to the person’s share in the responsibility for the damages

s. Intoxicationt. Joslyn v Berryman (2003):

1. Contributory negligence eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question

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2. The issue is not whether a reasonable person in the intoxicated passenger’s condition would have realised the risk of injury in accepting a lift from an intoxicated person. It is whether an ordinary, reasonable person – a sober person – would have foreseen the risk of injury

3. If a reasonable person would have known that they were exposed to risk of injury in accepting a lift from an intoxicated driver, and voluntarily entered the car, then the plaintiff is guilty of contributory negligence

u. Volenti Non Fit Injuria State general rule. State what the risk is. Is a complete defence as it negates the existence of a duty of care (Roots). P is presumed to know of obvious risks P must accept both physical and legal risks in order to be considered volens to

the risk of harm (Smith v Charles Baker) To qualify as an autonomous choice, the choice must be free and unconstrained –

that is voluntary, deliberate and informed Scanlon v American Cigarette Company Pty Ltd [1987]:

Section 151O Workers Comp Act 1987 (NSW):

1. The defence of volenti non fit injuria is not available in an action for the award of damages but, where that defence would otherwise have been available, the amount of any damages is to be reduced to such extent as is just and equitable on the presumption that the injured or deceased person was negligent in failing to take sufficient care for his or her own safety

v. Joint Illegal Enterprise State what it is. If P & D involved together in illegality, defence will succeed (Jackson v

Harrison)w. Illegality

Criminals not to be awarded damagesx. Volunteers acting in good faith carrying out work for a community organization will not

be held liable for any act or omission

Section 57 Civil Liability Act 2002 (NSW):

Protection of good samaritans

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.

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2. Obvious Risk:

Section 5F Civil Liability Act 2002 (NSW):

Meaning of “obvious risk”

(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

Fallas v Mourlas [2006]: Obvious risks do not extend to gross negligence

Doubleday v Kelly [2005]:

The age of the plaintiff and the circumstance in which the risk occurred need to be taken into consideration when determining whether the risk was an obvious one

Section 5G Civil Liability Act 2002 (NSW):

Injured persons presumed to be aware of obvious risks

(1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

Angel v Hawkesbury City Council (2008):

- A finding that a risk of harm is an obvious risk within the meaning of s 5F(1) so that pursuant to s 5G(1) the person who suffers harm is presumed to be aware of that risk, does not automatically lead to a finding if no breach of duty

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- Sections 5F and 5G only make it easier for the defendant to establish the common law defence of volenti

Section 5H Civil Liability Act 2002 (NSW):

- No proactive duty to warn of obvious risk

- (1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to warn of an obvious risk to the plaintiff.

- (2) This section does not apply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

- (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

Jaber v Rockdale City Council (2008):

- 19 year old dived head first from a wharf into the sea and sustained severe injuries from hitting his head on the seabed

- Not held to be an obvious risk under s 5H

Section 5R Civil Liability Act 2002 (NSW):

- Standard of contributory negligence

- (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

- (2) For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

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Consolidated Broken Hill v Edwards [2005]:

- Mr Edwards had knowledge of the risks of crossing the bridge, and did so anyways regardless of that knowledge

- A reasonable person in Mr Edwards position would not have crossed the bridge

Section 5S Civil Liability Act 2002 (NSW):

- In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.

o Obvious Risk and Dangerous Recreational Activity:

Section 5L Civil Liability Act 2002 (NSW):

- No liability for harm suffered from obvious risks of dangerous recreational activities

- (1) A person (“the defendant") is not liable in negligence for harm suffered by another person (“the plaintiff") as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

- (2) This section applies whether or not the plaintiff was aware of the risk.

Falvo v Australian Oztag Sports Association (2006):

- A dangerous recreational activity cannot means an activity involving everyday risks

Section 5M Civil Liability Act 2002 (NSW):

- No duty of care for recreational activity where risk warning

- (1) A person ("the defendant") does not owe a duty of care to another person who engages in a recreational activity ("the plaintiff") to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.

- (2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if:

(a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the

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defendant) and the risk was the subject of a risk warning to that other person, or

(b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent).

- (3) For the purposes of subsections (1) and (2), a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning.

- (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise).

- (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk).

- (6) A defendant is not entitled to rely on a risk warning unless it is given by or on behalf of the defendant or by or on behalf of the occupier of the place where the recreational activity is engaged in.

- (7) A defendant is not entitled to rely on a risk warning if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety.

- (8) A defendant is not entitled to rely on a risk warning to a person to the extent that the warning was contradicted by any representation as to risk made by or on behalf of the defendant to the person.

- (9) A defendant is not entitled to rely on a risk warning if the plaintiff was required to engage in the recreational activity by the defendant.

- (10) The fact that a risk is the subject of a risk warning does not of itself mean:

(a) that the risk is not an obvious or inherent risk of an activity, or

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(b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.

- (11) This section does not limit or otherwise affect the effect of a risk warning in respect of a risk of an activity that is not a recreational activity.

- (12) In this section:

"Incapable person" means a person who, because of the person’s young age or a physical or mental disability, lacks the capacity to understand the risk warning.

"Parent" of an incapable person means any person (not being an incapable person) having parental responsibility for the incapable person.

Defendant bears onus in all matters relating to defences.

Remedies for negligence action Damages for one cause of action must be recovered at one hearing, once and for all, and that the

sum recovered is payable as a lump sum; The court does not monitor how the plaintiff spends the money once the award has been made.

Division of Awards of Damages Pecuniary/Non-Pecuniary Loss Special/General Damages

Alternatives to Lump Sum Awards Provisional Damages Structured Settlements

o Civil Liability Act 2002 (NSW) Part 2 Division 7 Periodic Payments

Types of Damages Nominal Damages – Awarded in a case where the tort was established without proof of damages Contemptuous Damages – Technical victory but award reflects courts view that claim was

unmeritorious Aggravated Damages – Conduct of defendant increased plaintiff’s harm

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o Section 21 Civil Liability Act - Limitation on exemplary, punitive and aggravated

damages: In an action for the award of personal injury damages where the act or omission

that caused the injury or death was negligence, a court cannot award exemplary or punitive damages or damages in the nature of aggravated damages

Exemplary/Punitive Damages – Where the defendant’s conduct is so outrageous that the court regards the award of compensatory damages as inadequate to punish and deter the defendant or to deter others from acting similarly

o Uren v John Fairfax & Sons (1966)

In Australia in actions for tort, including defamation, exemplary damages may be awarded if it appears that in the commission of the wrong complained of the conduct of the defendant exhibited a contumelious disregard of the plaintiff's rights

o Gray v Motor Accidents Commission (1998)

Exemplary Damages may not be awarded if the tortfeasor has received substantial criminal punishment for substantially the same conduct as forms the basis of the tort claim, as this would result in double jeopardy

o Lamb v Cotogno (1987)

Even though the object of exemplary damages is, in part, to punish and deter, it is appropriate that they be awarded in a case where the wrongdoer was insured under a scheme of compulsory insurance against liability to pay them. Exemplary damages contain an element of appeasement, and their deterrent effect is not completely discounted by the existence of compulsory insurance

o Section 21 of the Civil Liability Act also applies here

Restitutionary Damages – Seek to award the plaintiff the gain the defendant has made rather that any loss the plaintiff has suffered

Compensatory Damages – Seek to compensate the plaintiff for damages sustained as a result of the defendant’s actions

Todorovic v Waller – the aim of damages in tort are to put the plaintiff in the same position as if the plaintiff had not sustained the injuries

2 Types of Damages – Specified in Cullen v Trappell: Special (specifiable) damages – medical costs, economic loss prior to settlement This type of loss is easily quantifiable into a sum General damages – tend to be difficult to quantify (i.e. losses in future earnings, including loss of

earning capacity of past and future earnings and damages for pain and suffering) Judiciary has a lot of discretion in awarding this type of damage Todorovic v Waller (1981); Sharman v Evans (1977) Damages for personal injury are compensatory; Damages for one cause of action must be recovered at one hearing, once and for all, and that the

sum recovered is payable as a lump sum; The court does not monitor how the plaintiff spends the money once the award has been made. The burden of proof in relation to damage suffered by the plaintiff lies on the plaintiff

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Pecuniary Loss

Loss of Earning Capacity: Damages are awarded for loss of earning capacity, not loss of earnings Skelton v Collins (1966) – The plaintiff’s loss of earning capacity is made over

the period during which the plaintiff might have been expected to earn if no injury had occurred

Graham v Baker (1961) – Damages are to be awarded only to the extent that the loss has been or may be productive of financial loss

Sharman v Evans – The earnings must be reduced by expenses that the plaintiff would have incurred in producing the earnings

Transport costs, union dues etc. must be deducted Cullen v Trappell (1980) – Tax that would have been paid on the earnings, but

which will not be imposed on the damages, must be deducted Section 12 Civil Liability Act

(2) In the case of any such award, the court is to disregard the amount (if any) by which the claimant’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award

Section 13 Civil Liability Act Damages awarded for loss of earning capacity must be based on the

plaintiffs most likely future circumstances but for the injury Bresatz v Przbilla – The common method to determining compensation for loss

of earning capacity is to take annual earnings at the date of the accident and multiply this by the number of prospective working years lost and scale the sum down taking into consideration:

General vicissitudes of life Expenses incurred in order to earn income

Todorovic v Waller – Though it’s possible to predict loss of earning capacity from actuarial

tables, there is no certainty the plaintiff will conform to it 2 Principal elements:

o Loss of earning capacity as to cause financial loss in future

o The plaintiffs need for services (medical treatment) or goods

(modified appliances) Malec v J C Hutton –

The degree of possibility of the plaintiff suffering the loss sustained by the tort regardless of the tort occurring must be considered in evaluating damages as a percentage

Loss of Expectation of Life: Skelton v Collins:

As the aim of tort is to return the plaintiff to their pre-tortious position, the award of damages is permitted

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Living expenses should be deducted to allow for the period in which the plaintiff is dead

The plaintiffs defendants can receive compensation only if the plaintiff would have been able to provide for the defendants if not for the occurrence of the tort

Gammell v Wilson [1982] – Where the plaintiff’s life is shortened by the injury, a deduction must be made for the expenses saved during the lost years. Such deduction would allow for the plaintiffs cost of living at a standard to which his career prospects at the time of death would suggest he was reasonably likely to achieve

Gratuitous Services Provided to the Plaintiff: Section 15B Civil Liability Act 2002 sets out guidelines for claiming said

services Donnelly v Joyce – The court could not impose on the plaintiff any obligation to

pay over the amount awarded to the carer, on the ground that what the plaintiff does with the damages is their own business

Hunt v Severs [1994] – Gratuitous services provided by the tortfeasor: Where voluntary services are rendered to the plaintiff, the loss is the loss

of the provider of the services, not the loss of the plaintiff The plaintiff should be under legal obligation to pay over the damages

recovered to the provider of the services Damages for gratuitous services are to be held on trust for the carer, as

such damages are meant to recompensate the carer, not compensate the plaintiff

Prevents payment of damages in a case where the provider is also the tortfeasor

Griffiths v Kerkemeyer – Gratuitous services provided by the tortfeasor: Adopted Donnelly v Joyce principle Were the services that the injured person needed such that it would be

unreasonable to procure them at a cost? o If so, the fulfilment of that need is likely to be productive of

financial loss If this loss does not occur, why didn’t it?

o If it because of private goodwill, the value of said goodwill

should be ignored in assessing damages and the injured person should be awarded the reasonable cost of meeting the need

The plaintiff’s need for domestic assistance and care is properly the subject of an award for damages, even if the need had been or would be met by services provided gratuitously by relatives and/or friends

Upheld in Van Gervan v Fenton Van Gervan v Fenton – Cost of gratuitous services

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The wages forgone by a carer are not an appropriate criterion for determining the value of services provided gratuitously to an injured person

The measure of damages available for gratuitous care at common law is the reasonable and objective value of the need for the services – that is their reasonable market value not the loss of wages that the provider of the services suffers by providing them gratuitously

Kars v Kars - Gratuitous services provided by the tortfeasor From the plaintiff’s point of view, the identity of the person who fulfils

the need caused by the tort doesn’t matter The fact that the defendant fulfils the function of providing services does

not decrease the plaintiffs need for those services

Hospital and Medical Care: Sharman v Evans –

Sets out test for the amount of compensation recoverable Reasonable cost of expenses recoverable The touchstone of reasonableness is the cost matched against the health

benefits of the care

Gratuitous Services Provided by the Plaintiff: Sullivan v Gordon –

permitted a plaintiff to recover damages for loss of capacity to perform gratuitous services for other people (in this case, the claimant’s children)

if a claimant is deprived by injury of the capacity to provide services to other persons, and the desire of the claimant to provide those services constitutes a need, then the commercial costs of replacing those services are recoverable

CSR v Eddy – a person who suffers personal injury cannot claim special damages to

cover the care they were providing prior to the personal injury to an incapacitated family member

No award can be made for loss of the ability to perform gratuitous services, as such loss should be viewed as being non-pecuniary rather than pecuniary

o s15 CLA: restrict claims for gratuitous services

(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a) there is (or was) a reasonable need for the services to be provided, and

(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c) the services would not be (or would not have been) provided to the claimant but for the injury.

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(3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:

(a) for less than 6 hours per week, and (b) for less than 6 months.

o s18(1)(b) CLA: no interest on gratuitous attendant care services

Treatment of Contingencies: At some stage in the future, the plaintiff would have suffered some loss

regardless of the tort – general vicissitudes or contingencies of life Standard approach – after taking discount rate off, 15% is taken off to allow for

contingencies Malec v J C Hutton Pty Ltd –

The court assesses on the degree of probability that an event would have occurred, or might occur, and adjust its awards of damages to reflect the degree of probability

Where a contingency is dependent on a further contingency, the probability decreases exponentially

Collateral Benefits: Where the plaintiff has received money from another source as `a result of the

accident, should that money be taken off the pecuniary damages they receive? Derive from 3 main sources:

Statutory provision (social security payments) Contract (sick pay or the proceeds of an insurance policy) Benevolence (charitable payments or ex gratia payments made by a

sympathetic employer) Rights based approach -

Sets out to answer the question whether to offset collateral benefits against a defendants liability by examining matters of right as between the various parties – the plaintiff, defendant and provider of the benefit

National Insurance Co of New Zealand Ltd v Espagne – The important feature of a collateral benefit is the importance of the

benefit to the plaintiff Id the benefit was intended to be received in addition to the damages,

then it will be ignored in the calculation of the lump sum Graham v Baker –

Sick pay is normally deducted from the loss of wages component of special damages

Calculation of Lump Sum

Discount Rate Takes account of inflation and earnings on investments; reduces to net present value Todorovic v Waller (1981) 150 CLR 402

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Civil Liability Act 2002 (NSW) s 14 - 5%o Calculation the Lump Sum:

Todorovic v Waller – Allowance for inflation and other factors has to be made by reducing the

assumed rate at which the plaintiff could safely invest the lump sum Suggested a 3% discount

Section 14 of the Civil Liability Act 2002 (NSW) suggests a 5% discount rate

Taxation as investors have historically been able to achieve a real rate of return, some discounting is

necessary.

Todorovic v Waller (1981) 150 CLR 402. Civil Liability Act 2002 (NSW) s 14.

Contingencies

1. General Vicissitudes of Life Discount reflecting life’s eventualities Usually 15% discount for possible future unspecified adverse events.

2. Treatment of Contingencies resulting from the Accident Further discount if plaintiff has predisposition to future health problem Malec v JC Hutton (1990) 169 CLR 638

Collateral Benefits

Payments such as insurance payouts, charitable gifts: not deducted National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 Parry v Cleaver [1970] AC 1 Zheng v Cai (2009) 239 CLR 446 – payments to continue charity work Sharman v Evans (1997) 138 CLR 563 Golden Eagle International Trading Pty Ltd v Zhang (2007) 229 CLR 498 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Non-Pecuniary Losso Include 3 heads:

Pain and suffering – Normally occurs when the plaintiff has suffered personal injury

Skelton v Collins – Pain and suffering must be experienced by the plaintiff. Therefore if the plaintiff is in a vegetative state, no damages will be awarded for pain and suffering

Section 17A Civil Liability Act – courts can refer to other cases with similar facts to determine the appropriate amount of compensation

Loss of amenity – Mental anguish and suffering as the plaintiffs life has been changed by the tort (e.g. lost leg)

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Objective – lost ability Subjective – actual deprivation the plaintiff is suffering and will suffer

from being unable to participate in life as before Skelton v Collins – the amount of compensation the plaintiff receives for

loss of amenity is subjective, and based on their awareness of their loss Loss of expectation of life – plaintiffs life expectancy reduced by defendants

negligence Amount is small and similar across factual situations - judges don’t like

to value human life Skelton v Collins – Does not cover mental distress due to realisation of

losso Difficult to allocate a monetary amount for loss of human condition

Sharman v Evans – Courts provide reasonable compensation for the plaintiff rather than perfect compensation

o s16 Determination of damages for non-economic loss

(1) No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.

(2) The maximum amount of damages that may be awarded for non-economic loss is $350,000, but the maximum amount is to be awarded only in a most extreme case.

o 17A Tariffs for damages for non-economic loss

(1) In determining damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.

o 18 Interest on damages

(1) A court cannot order the payment of interest on damages awarded for any of the following:

(a) non-economic losso Section 16 –

Damages for non-pecuniary loss are assessed with reference to the most extreme case

Threshold – if the plaintiffs damage is less than 15% of the most extreme case, no damages are awarded

Imposes a maximum cap for damages : $350,000 indexed. S16 Table: not a straight comparison up to 33%; thereafter direct comparison

with most extreme case. Has a huge impact on smaller claims Provides a sliding scale of damages to percentage of loss

Damages and Deatho Existing cause of action – Deceased could have sued but died before the action was

brought The death of a party does not extinguish the action

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The claim must be a claim that the deceased person would have been able to bring before they died – it can’t be a claim by the dependants of the deceased for a loss caused by the death of the deceased

In actions it does apply to, allows for the recovery of certain kinds of damages by the personal representative of the deceased (usually the executor or administrator). There are exceptions – some causes of actions and some types of damages excluded.

Executor cannot claim for loss of earnings during ‘lost years’

Insurance claims are ignored with the exception of funeral expenses.

Note position re the recovery of damages for non-pecuniary loss 2(d) – no damages for pain and suffering or damages for mental or bodily harm if death results from injuries caused by tort. But does allow claim where death does not arise from the original tort tat gave rise to the cause of action. E.g. injured through someone’s negligence and have a painful leg; if killed while crossing road, s 2(d) does not apply. Therefore, in this case the estate could claim damages for non-pecuniary losses (pain and suffering etc) during period from accident to death. But if death is a consequence of a tort – cannot claim. Doesn’t make sense! Effect is to reduce claims.

This Act provides some kind of compensation from the date of the accident to the date of death

Doesn’t always cover non-pecuniary losses Broadly, the heads of damage recoverable will be loss of earnings and loss of

earning capacity.

In Australia, in most jurisdictions, no claim for non-pecuniary losses.

Section 2 Law Reform (Miscellaneous Provisions) Act 1944 – Effect of death on certain causes of action

(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in the person shall survive against, or, as the case may be, for the benefit of, the person’s estate: Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to claims under Division 2 of Part 3 of the Property (Relationships) Act 1984 .

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:

o (a) shall not include:

(i) any exemplary damages, or

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(ii) any damages for the loss of the capacity of the person to earn, or for the loss of future probable earnings of the person, during such time after the person’s death as the person would have survived but for the act or omission which gives rise to the cause of action,

o (b) in the case of a breach of promise to marry shall be limited to

such damage, if any, to the estate of that person as flows from the breach of promise to marry,

(4) Where damage has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this Part, to have been subsisting against the person before the person’s death such cause of action in respect of that act or omission as would have subsisted if the person had died after the damage was suffered.

(5) The rights conferred by this Part for the benefit of the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by the Compensation to Relatives Act 1897 , as amended by subsequent Acts, and so much of this Part as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said Act as so amended as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).

Where the deceased had an insurance policy – (c) where the death of that person has been caused by the act or omission

which gives rise to the cause of action, shall be calculated without reference to any loss or gain to the person’s estate consequent on the person’s death, except that a sum in respect of funeral expenses may be included,

(d) The estate of the deceased cannot claim where the deceased was alive and inured by the initial cause of action and subsequently dies from that cause of action (causation cannot be satisfied)

o The estate of the deceased can claim where the deceased’s death

was caused independently of the initial cause of action Key elements of LRMPA 1944 –

Provides for the survival of the majority of causes of action subsisting against or vesting in the deceased’s at the time of death

Allows for the recovery of certain kinds of damages by the personal representative of the deceased

Hicks v Chief Constable of South Yorkshire Police [1992] – The pain and suffering experienced by the deceased must have been

endured for a length of time before death to be able to claim damages for pain and suffering

o Death as a cause of action – The death of the deceased itself is the cause of action

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Fatal Accidents Legislationo Baker v Bolton – At common law, the death of a person created no right of action in

anyone else to sue the person responsible for the death of that person o The right of the deceased’s dependants to sue the tortfeasor relies on the right of the

deceased to have been able to sue the tortfeasoro Haber v Walker –

Plaintiff suffered depression and committed suicide as a direct result of injuries caused by a driver’s negligence

Dependants allowed to sue as the deceased could have successfully sued the tortfeasor if he had still been alive

o Compensation to Relatives Act 1897 Section 3(1)–

A. Whensoever the death of a person is caused by a wrongful act, neglect or default – condition for section to operate

B. and the act, neglect or default is such as would (if death had not ensued) have entitled the deceased to maintain an action and recover damages in respect thereof

C. then the tortfeasor shall be liable to an action for damages – consequenceo Compensation to Relatives Act 1897 Section 3(2)–

Act provides compensation to dependants only o Section 4 –

Defines a defendant as a spouse, brother, sister, half-brother, half-sister, parent or child of the person killed

If not defined as a dependant under the Act, no claim can be madeo Harding v Lithgow Corporation (1937) –

The deceased’s dependants can bring a claim against the tortfeasor even if the deceased also brought a claim against said tortfeasor during the c course of their lifetime

o Parker v Commonwealth (1965) –

Assessed the value of dependency Damages should be calculated in reference to a reasonable expectation of

pecuniary benefit from the continuance of the life Damages are given to compensate the recipient on a balance of gains and losses

for the injury sustained by the death o Franklin v The South Eastern Railway Company (1858) –

Details what kind of losses the dependants can claim The damage claimed must have been that of the deceased not that of the

dependant o De Sales v Ingrilli (2002) –

The effect of remarriage/defacto relationships on dependants claiming The contingencies of life, which include the chance that the spouse of the

deceased will remarry , must be considered in calculating the lump sum o Carroll v Purcell (1961) –

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In the calculation of the damages the dependants gains and losses from the deceased’s death must be taken into consideration

This does not include the ability of the widow to obtain gainful employment, as that ability was present before the death of the deceased

This does include the widow’s revived capacity to marry

Civil Liability Act 2002 (NSW) s 5T

5T Contributory negligence—claims under the Compensation to RelativesAct 1897

(1) In a claim for damages brought under the Compensation to RelativeAct 1897, the court is entitled to have regard to the contributory negligence of the deceased person.

(2) Section 13 of the Law Reform (Miscellaneous Provisions) Act 1965 does not apply so as to prevent the reduction of damages by the contributory negligence of a deceased person in respect of a claim for damages brought under the Compensation to Relatives Act 1897.

If the effect of the deceased’s contributory negligence was to reduce the amount of damages, then the dependants’ claim/award is to be reduced by the same proportion.

Mental Harm Why have different duty rules?

Mental Harm is ‘different’ from physical harm in that it cannot be identified as easily Floodgates Qualitative Differences between physical and mental harm

Civil Liability Act 2002 (NSW) Part 3 (1)

Section 31 - Pure mental harm - liability only for recognised psychiatric illness o There is no liability to pay damages for pure mental harm resulting from negligence

unless the harm consists of a recognised psychiatric illness.

—32 Mental harm —duty of careo (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.

Section 32(2)o For the purposes of the application of this section in respect of pure mental harm, the

circumstances of the case include the following: o (a) whether or not the mental harm was suffered as the result of a sudden shock, o (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in

peril,

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o (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril,

o (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant.

Section 32(4) o This section does not require the court to disregard what the defendant knew or ought to

have known about the fortitude of the plaintiff

Section 30 Limitation on recovery for pure mental harm arising from shock o 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.

Section 30(2)The plaintiff is not entitled to recover damages for pure mental harm unless: o the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or o the plaintiff is a close member of the family of the victim (my note: close family member defined

in subsection (5)).o (3) Any damages to be awarded to the plaintiff for pure mental harm are to be reduced in the

same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim

o (4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law.

Sheehan/Wicks v SRAo Key point for decision – what meaning was to be given to the expression ‘witnessed, at the scene,

a person being killed, injured or put in peril’ for the purpose of Section 30(2)(a)?o the High Court took a broad reading of what it meant to be killed, injured or put in perilo Note comments on the structure of Part 3 (decide s 32 issue (duty) and then see if s 30 applies;

comments on the meaning of ‘shock’ and ‘sudden shock’ at [29]-[31], [37]-[39]

Duty of care:o Jaensch v Coffey –

In addition to it being reasonably foreseeable that the plaintiff might suffer such an injury, it also required that there be sufficient proximity between the plaintiff and the defendant who caused the accident

o Mount Isa Mines v Pusey –

considered the issue of nervous shock and whether or not a person could be compensated for a psychiatric illness that resulted from the nervous shock from witnessing the injuries of a fellow work mate

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Determination of reasonableness at the duty stage must be in the context of all of the circumstances

A ‘recognisable psychiatric illness’ is a requirement at common law (eg. s 31 CLA 2002 (NSW) – ‘recognised psychiatric illness’)

Was here sufficient proximity between the defendant and the plaintiff? Direct perception or immediate aftermath? Sudden shock? Once thought that one could not be harmed psychiatrically over

time – had to be shocked Normal fortitude? Not particularly susceptible to psychiatric illness

o Tame v NSW; Annetts v Australian Stations Pty Ltd –

Tame – Plaintiff developed psychiatric injury after becoming obsessed with a mistake the NSW police made on her drink driving test results

Annetts – Plaintiff’s son died working at a station in the outback alone Established current test for duty of care in mental harm cases:

Normal fortitude – Was it reasonably foreseeable that a person of normal fortitude might have suffered a recognised psychiatric illness as a consequence of the defendant’s failure to take reasonable care?

Sudden shock – Was the mental harm suffered as a result of sudden shock?

Direct perception – What was the proximity between the plaintiff and the injured person/accident?

Recognised psychiatric illness – The plaintiff must have suffered a recognised psychiatric illness to claim; cannot merely be grief

Reasonable foreseeability of damage – Was it reasonably foreseeable that the defendant’s negligence would cause the plaintiff mental harm?

Tame – No duty on the bearer of bad news for causing mental harm Civil Liability Act section 31 –

Pure mental harm – liability only exists for recognised psychiatric illness There is no liability to pay damages for pure mental harm resulting from

negligence unless the harm consists of a recognised psychiatric illness Section 32 –

Establishes the elements that need to be satisfied when determining whether a duty of care exists

(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

(2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following:

o (a) whether or not the mental harm was suffered as the result of a

sudden shock, o (b) whether the plaintiff witnessed, at the scene, a person being

killed, injured or put in peril,

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o (c) the nature of the relationship between the plaintiff and any

person killed, injured or put in peril, o (d) whether or not there was a pre-existing relationship between

the plaintiff and the defendant. (4) This section does not require the court to disregard what the

defendant knew or ought to have known about the fortitude of the plaintiff

Section 30 - Establishes limitations 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:

o (a) the plaintiff witnessed, at the scene, the victim being killed,

injured or put in peril, or o (b) the plaintiff is a close member of the family of the victim

(close family member defined in subsection (5). (3) Any damages to be awarded to the plaintiff for pure mental harm are

to be reduced in the same proportion as any reduction in the damages that may be recovered from the defendant by or through the victim on the basis of the contributory negligence of the victim

(4) No damages are to be awarded to the plaintiff for pure mental harm if the recovery of damages from the defendant by or through the victim in respect of the act or omission would be prevented by any provision of this Act or any other written or unwritten law

Sheehan/Wick v SRA – Key point discussed was what menaing was given to the expression

‘witnessed at the scen, a person being killed, injured or put in peril for the purpose of section 30(2)(a)

High court took a narrow reading of the legislation

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Occupiers Liability

Duty of CareCommon Law before Zaluzna

Why have a separate area devoted to the liability of occupiers? Concern is with omissions – normally no duty of care to act.

Occupier’s liability an exception – from mid 19th century, occupiers owed a duty of care to entrants on the land of which they were occupier.

However - standard of care owed to entrant depended upon the classification of the entrant – occupier was judged by different standards of care depending on the status of the entrant.

Australian Safeway Stores v Zaluzna – o Special duties do not travel beyond the general law of negligence

o However, the circumstances on which the plaintiff entered onto the land of the defendant

are still relevant Neindorf v Junkovic –

o Things to consider when determining if duty of care owed:

Is the plaintiff a lawful entrant? – if yes, then duty of care automatically owed In what capacity did the plaintiff enter? – Was the plaintiff a guest or did they

have a commercial interest? What steps, if any, did the defendant take to alleviate the risk? Would a reasonable person in the defendant’s position have acted the same way? Was the hazard an ordinary hazard under the circumstances?

o Post Zaluzna –

The mere relationship between the trespasser and the occupier will not, without more, lead to the existence of a duty of care

However, if the occupier has knowledge that the land is being trespassed on, or if it is reasonably foreseeable that the land may be being trespassed upon, a duty of care may be owed

Contractual Entrants – o Those who pay a fee upon entry of the premises

o Standard of care of occupier – to make the land as safe as reasonable care on the part of

anyone could make ito Calin v Greater Union Organisations Pty Ltd –

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the principles of the common law governing the liability of an occupier of premises who agrees for reward to allow a person to enter the premises for some purpose had not been overruled by the decision in Zaluzna

the category of duty owed to persons who enter upon premises by virtue of a contractual right has been retained

o Consolidated Broken Hill v Edwards –

In this case the defendant had knowledge that people trespassed on the land The danger in question could have been averted with relative ease The obviousness of a danger is merely a factor to be taken into account in

considering whether there has been a breach Civil Liability Act division 4

o 5G – Injured persons presumed to be aware of obvious risks

o 5H – No proactive duty to warn of obvious risk

(1) A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to warn of an obvious risk to the plaintiff.

(2) This section does not apply if: (a) the plaintiff has requested advice or information about the risk from

the defendant, or (b) the defendant is required by a written law to warn the plaintiff of the

risk, or (c) the defendant is a professional and the risk is a risk of the death of or

personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

If you cannot find a breach under the statute, refer to common law o 5I – No liability for materialisation of inherent risk

Civil Liability Act division 5o 5L – No liability for harm suffered from obvious risks of dangerous recreational activities

o 5M – No duty of care for recreational activity where risk warning

Pure Economic Loss Loss that is purely financial – no physical harm or damage to property – opposite to

consequential economic loss Hedley Byrne v Heller; Hill v Van Erp –

o Misrepresentation/negligent provision of services

o As a result of the defendant negligently giving advice to the plaintiff, the plaintiff suffers

pure economic loss Bryan v Maloney –

o Defective structure

o A loss brought about by a defectively constructed house is classified as pure economic

loss no property damageo Only applies to residential buildings, not commercial buildings

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o In a competitive world where one person’s economic gain is commonly another’s loss, a

duty to take reasonable care to avoid causing economic loss may be inconsistent with community standards in relation to what is ordinarily legitimate in the pursuit of personal advantage

Ultramares Corp v Touche – o The law has a concern to avoid the imposition of liability in an indeterminate amount for

an indeterminate time to an indeterminate class of peopleo Economic loss can ripple down a chain of parties, for example, the loss of profits, which

the defendant causes the plaintiff, may in turn cause loss of profits to the plaintiff’s supplier and in turn to that supplier’s supplier…

Determining duty of care

When will a duty of care be owed not to cause pure economic loss?

Reasonable Foreseeability? – need moreo Reasonable foreseeability may be enough ‘in more settled areas of the law of negligence

involving ordinary physical injury or damage caused by the direct impact of positive act’.

Deane J Sutherland Shire Council v Heyman (1985) 157 CLR 424o But not enough in cases of pure economic loss – something more is required.

Proximity? No longer applies; effectively meaninglesso ‘ [T]he features of a relationship which gives rise to a duty of care do not always answer

the description of nearness or closeness. Likewise, some relationships which would as a matter of language be thought proximate nevertheless do not constitute relationships of proximity.’ Dawson J in Hill v Van Erp (1997)

o New petrol station causing loss of profits to existing petrol station.

o ‘[B]y itself, the notion of proximity, used as a legal norm, has the uncertainties and perils of indeterminate reference, used with shifting meanings to mask no more than policy preferences.’ Gummow J, Hill v Van Erp (1997)

What is required for PEL duty of care?

The Salient Features Approach – current preferred approach in Perre

‘the appropriate approach is to attempt to identify “the content of the criteria or rules” which might thereafter be applied in determining cases falling within the category then under consideration.’This is preferable to ‘the amorphous notion of proximity as a general concept’. Brennan J in Bryan v Maloney (1995)

o McHugh’s 5 Stage Enquiry:

Was the loss suffered by the plaintiff reasonably foreseeable?

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If yes, would the imposition of a duty of care impose indeterminate liability?

If no, would the imposition of a duty of care impose an unreasonable burden on the autonomy of the defendant?

If no, was the plaintiff vulnerable to loss from the conduct of the defendant?

Did the defendant know that their conduct could cause harm to individuals such as the plaintiff?

o Indeterminacy

Requirement that a duty of care should only extend to first line victimso Individual autonomy

Where the defendant is already under a restraint by reason of a duty owed to another, the rationale of the immunity rule disappears in respect of conduct within the ambit of that duty

o Vulnerability

Was it reasonably open to the plaintiff to take steps to protect itself? Was it open to the plaintiff tp protect their economic interest through a bargain?

Statutory Authorities

Duty of Care: Reasonable foreseeability is usually insufficient. Something more is required for a duty to arise; however, the High Court has struggled to clearly express what this further something is. Note overlap between the requirements for a duty not to cause pure economic loss and the requirements for placing a statutory authority under a duty of care to act, particularly in McHugh J’s judgments in the leading authorities.

The Ipp Report – number of areas where it might be reasonable to treat statutory authorities differently.

Allocation of Resources limited resources, choices made by authority as to how those resources are allocated – if

negligence alleged could only have been rectified by spending more money on the function in question.

Making Social Policy some areas where statutory authority is given the power to make choices between different

policies to implement its functions.

1. Courts not well qualified (in expertise and procedure) to adjudicate upon these decisions that are essentially political;

2. Courts are neither politically representative or politically accountable;

3. Proper consideration of these issues very expensive and time consumingo Home Office v Dorset Yacht [1970] AC 1004

Borstal boys case

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o Stewart v Ronalds [2009] NSWCA 277 sacked NSW Minister; negligence re sacking.

Difficulties in recognising liability in negligence

1. Legislature may have covered the field, and excluded a common law duty of care; may have given such a wide discretion that failure to exercise it cannot be considered negligent (breach).(McHugh J, Graham Barclay v Ryan (HCA 2002))

Misfeasance/Nonfeasance distinction in many cases statutory authority is sued not for its own conduct in carrying out an activity

but for failing to exercise its statutory powers. More difficult to establish a duty for failure to act.

 2. Distinguish liability in negligence from liability for breach of statutory duty.

‘Routine’ v ‘Failure to Act’ cases

‘In many cases involving routine events, the statutory authority will be in no different position from ordinary citizens. But where the authority is alleged to have failed to exercise a power or function, more difficult questions arise.’ McHugh J in Crimmins v Stevedoring Committee (1999) 200 CLR 1

o if the statutory authority is acting like a private citizen e.g. as a private occupier of land, then they have a duty no different from that of the ordinary citizen.

Main difficulties have arisen where it is alleged that the statutory authority has failed to act by not exercising a statutory discretion and the plaintiff alleges that, if the statutory authority had exercised its discretion, the plaintiff would have suffered no loss.

o Sort of misfeasance versus non-feasance. A failure to act/exercise statutory authority, which would have protected the plaintiff.

Establishing a duty of care in failure to act cases: McHugh J’s six-point test

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1o Asbestos-related disease, casual stevedoring worker

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.o Contaminated oysters causing sickness.

1. Injury to P is a reasonably foreseeable result of failure of D’s failure – generalized inquiry; fairly low level test; low threshold

2. D’s statutory control gave it power to protect specific class including plaintiff (rather than public at large)

3. P was vulnerable to such injury

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4. D had knowledge or ought it to have had knowledge, of risk of harm to individual or specific class

5. The duty would not be in respect of ‘core policy-making’ or ‘quasi-legislative’ function (e.g. allocation of resourcing-type issues)

6. No supervening reasons in policy to deny duty (e.g. incompatibility with the statutory scheme, pure economic loss). i.e. no extraneous reasons

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Nature of policy decisions

Particular focus on Core Policy Making (5) - idea that certain types of decision not suitable for courts to hear (policy) whilst other sorts are (operational).

‘… a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care’. Mason J in Sutherland Shire Council v Heyman

c.f. ‘Considerations of convenience, discretion and budgetary allocation … appropriately considered as part of the breach question’. McHugh J in Crimmins v Stevedoring Committee

Even though the policy/operational distinction has gone out of favour in Australia (L & H p 401), the ideas it reflects are contained in the idea that the exercise of core-policy making or quasi-legislative functions cannot form the basis of an action in negligence.

For example, in Crimmins there were statutory provisions that gave the defendant power to make orders with ‘force of law’ – if these provisions were the only ones in issue in this case, this might have prevented a duty of care from arising. However there were other provisions that did not have this effect and which satisfied the other requirements for a duty of care to be owed.

Home Office v Dorset Yacht - o Proximity to be considered in determining whether and to whom a duty of care is owed

o It was held that a duty of care was only owed to persons whose property was in close

proximity to the island, as it was only this property that was subject to special risk of damage

Graham Barclay v Ryan – o There is no simple test to determine whether a public authority owes a common law duty

of care to an individual based on its statutory powers. Generally, however, a court will consider:

(a) the degree and nature of control exercised by the authority over the risk of harm that eventuated;

(b) the vulnerability of those who depend on the proper exercise by the authority of its powers; and

(c) the consistency between the asserted duty of care and the terms, scope and purpose of the relevant statute

o Routine v Failure to Act cases

Routine – The statutory authority will be in no different a position than that of ordinary citizens, However:

Crimmins v Stevedoring Committee – Where the authority is alleged to have failed to exercise a power or function, more difficult questions arise

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Failure to act – The statutory authority failed to act by not exercising statutory discretion and the plaintiff alleges that if the statutory authority had exercised statutory discretion the plaintiff would not have suffered loss

Use McHugh’s 6 point approach (Crimmins) for determining if a duty of care is owed in failure to act scenarios

o Injury to P is a reasonably foreseeable result of failure of D’s

failure – generalized inquiry;o D’s statutory control gave it power to protect specific class

including plaintiff (rather than public at large);o P was vulnerable to such injury;

o D had knowledge or ought it to have had knowledge, of risk of

harm to individual or specific class;o The duty would not be in respect of ‘core policy-making’ or

‘quasi-legislative’ function;o No supervening reasons in policy to deny duty (eg

incompatibility with the statutory scheme, pure economic loss). Particular focus on policy reasons for statutory authorities

o Almost every decision a statutory authority makes involves

financial, economic, social or political factors Sutherland Shire Council v Heyman - a public authority is under no duty

of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care

Crimmins v Stevedoring Committee - Considerations of convenience, discretion and budgetary allocation are appropriately considered as part of the breach question

o Civil Liability Act section 42 - Principles concerning resources, responsibilities etc of

public or other authorities (1) The following principles apply in determining whether a public or other

authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a) 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,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) 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),

(d) 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

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o RTA v Refrigerated Roadways Pty Ltd –

Main application of section 42 Death caused by a third party throwing a rock from an unfenced overpass onto a

truck It is not open to private individuals to complain that the failure to take a

particular precaution was due to limited resources of the individual the first question to be determined was the ‘function’ in question because s 42 (a)

refers to functions The remainder of s 42(a) requires the court to recognise that the ability to carry

out the functions is limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions

Given that the budget for the ‘care control and management of all freeways in NSW’ – the relevant function – was very large, any cost of screening of the bridge would have been well within that budget hence s 42(a) would not have provided any kind of defence on the facts

Whilst s 42(a) is concerned with how much money the statutory authority has, s 42(b) is concerned with the allocation of those resources

A distinction is to be drawn between the general allocation (which is caught by s 42(b)) and a specific allocation although no further guidance is given on how to do this. If the particular allegation of negligence does constitute a challenge to a general allocation, then, by s 42(b), it must fail as the allocation is not open to challenge

Highway Authorities

‘Highway rule’

Since 1890s gave highway authorities immunity with regard to their central activities. The rule: ‘by reason of any neglect on its part to construct, repair or maintain a road or other highway

a road authority incurs no civil liability’o Buckle v Bayswater Road Board (1936) 57 CLR 259o Gorringe v Transport Comm’n (Tas) (1950) 80 CLR 357

Criticism of rule, but no legislative reform.

Brodie v Singleton Shire Council ; Ghantous v Hawkesbury City Council [2001] HCA 29(cases heard together)

Brodie: truck (22 tonnes) crossing bridge (15 tonne limit) which collapsed Majority: Gaudron, Gummow & McHugh JJ: Acknowledged that the court is ‘neither a

legislature nor a law reform agency’ (SGIC v Trigwell 1979 Mason J) but overturned immunity anyway.See also Kirby J (in favour of overturning rule); Gleeson CJ, Hayne and Callinan JJ dissent

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Reasons for overturning Highway Immunity Rule

Uncertainty as to scope of rule

o What is a ‘highway authority’o Difference between misfeasance v nonfeasance i.e. inadequate construction as opposed to failure

to repair. i.e. uncertainty in categorisationo Scope of the highway: footpaths (distance from road) & ‘artificial structures’ (drains, sewers,

traffic lights)o So many ‘exceptions and qualifications as to almost engulf the primary operation of the

“immunity”’. i.e. distinctions not clear cuto The distinctions are ‘apt to provoke rather than settle litigation …’o Cases determined by ‘caprices of unprincipled exceptions and qualifications …’ i.e. unprincipled

distinctions between cases creating uncertainty in law.

Supposed purpose of the rule

o It was decided that the purpose was: ‘saving the public purse’not wasting money on litigation

o But this argument was not convincing because highway authorities have greater control over the risk than many other authorities, and

o immunity is of limited and uncertain effect, provoking expensive litigation. Hence reason for maintaining rule is unjustified.

When will a liability be established – apply ordinary negligence principles

(a) Duty – reasonable foreseeability

(b) Breach – Calculus of negligence factors (Shirt factors)

(i) Probability of harm – suppose road users ‘will themselves take ordinary care’. o Usually gets to breach of duty on this pointo Distinguish pedestrians from drivers – slower speed.

(ii) Gravity – distinguish motor vehicle and pedestrian.o Usually more serious for vehicles than pedestrians

(iii) Practicability and justifiability – consider ‘any other competing or conflicting responsibility or commitments of the authority’

Highway authorities are usually found to have a duty of care by virtue of their responsibilities for care and control of roads, including their function to maintain roads.

Results in the actual cases

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Brodie – collapsed road bridge – returned to Court of Appeal; Council liable

Ghantous – pedestrian tripping on uneven verge - no liability.Pedestrian did not exercise reasonable care for her own safety. Note: The mere fact the pedestrian does not exercise reasonable care for her own safety does not mean that a duty of care is not owed; but it will be important in breach.

Cases following Brodie decision

Liverpool City Council v Millett [2004] NSWCA 340.

o Car accident, plaintiff injured when car he was driving strayed onto wrong side of road, unmarked centre-line on road

o Issue of negligence concerned the un-marked centre lineo Distinction drawn between pedestrians and ‘road users’ – road users cannot always be expected to

avoid obvious risks or dangers, but pedestrians can be expected to take ordinary care for their own safety – no breach of duty where P ignores an obvious risk because road authority can assume that P will perceive and avoid the risk and D under no obligation to remove the danger

o Pedestrian expected to perceive and avoid obvious risks like potholes in foot paths. Sutherland Shire Council v Henshaw [2004] NSWCA 386

(decided one day after Millett).o Pedestrian injured when injured by fall at hole in broken edge of asphalt paving on footpatho Brodie did not hold that highway authorities are exempted from any duty of care at all to

pedestrians who do not take ordinary care in their use of the road:

o Parody argument Gaudron, Mchugh And Gummow JJ: ‘[67] A rule of law which meant, or had the effect that if a hazard in a road is so obvious that a pedestrian can observe it, the highway authority is not obliged to do something about it on the calculation that pedestrians will take reasonable care for their own safety has an air of parody; that the hazard was so bad that nothing needed to be done about it. Only in a Savoyard parody should a highway authority maintain that its own negligence was so egregious that everyone should have observed the hazard which it produced, and that as a result the highway authority had no responsibility to the users of the road. Such a rule would create an incentive for a highway authority not to take remedial action to deal with a known danger in a footpath, a consequence of the previous law on misfeasance and non-feasance to which the leading judgment in Brodie referred at 572 [135] as showing that the previous law was unsatisfactory.’

o P’s failure to notice an obvious risk is one factor to be considered amongst the other Shirt factors to determine breach of duty

o Problem: using what looks like contributory negligence as a basis for saying that the defendant has not breached their duty of care.

The approach in Henshaw has been accepted in later decisions of the New South Wales Court of Appeal.

Edson v RTA [2006] NSWCA 68

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o Ipp J: taking of an obvious risk by plaintiff pedestrian did not prevent duty of care (or breach of duty) being found on the facts – defendant knew that pedestrians were taking obvious risks and this affected what the exercise of reasonable care demanded

o Pedestrians crossing of M4 Motorway – no crossings.

o Note: that the obviousness of risk depends on the facts. Calculus of negligence factors important for determining breach, incuding especially the

gravity of harm.

Contrast Edson with Dederer

RTA v Dederer [2007] HCA 42 (30 August 2007)

o Youth jumped from Forster Tuncurry Bridgeo High Court splits 3-2 but seems all agree that obviousness goes to breach but majority held –

when determining reasonable care, not relevant that defendant knows that pedestrians taking obvious risks

o Gummow J [47] - ‘The essential point is that the RTA did not owe a more stringent obligation towards careless road users as compared with careful ones. In each case, the same obligation of reasonable care was owed, and the extent of that obligation was to be measured against a duty whose scope took into account the exercise of reasonable care by road users themselves’

o Thus – not the case that the fact that the risk is obvious (to the road user or pedestrian) will automatically mean no breach. BUT the more obvious the risk the less likely it is that reasonable care will require anything to be done about it as this question – i.e. the reasonable care question - is answered assuming the exercise of reasonable care by road users.

o Stat Auth has a duty to exercise reasonable care re safety of others. But not a duty to prevent people from engaging in risky activities.

Civil Liability Act 2002 (NSW)

S 45 Special nonfeasance protection for 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 out 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) This section does not operate: (a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or (b) to affect any standard of care that would otherwise be applicable in respect of a risk.

o NOTE: not liable unless statutory decision maker knew of risk.o Must have had actual knowledge, not constructed knowledge.

North Sydney Council v Roman [2007] NSWCA 27

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o Actual knowledge in the mind of an officer within the council having delegated (or statutory authority) to carry out the necessary repairs required for s 45(2)(a) to apply (cf. Blacktown City Council v Hocking [2008] NSWCA 144, per Tobias JA, [223].

o So if an officer did have actual knowledge but this was not communicated to the officer with the statutory decision making power, then s45 is not invoked.

o Decision challenged in Blacktown, Tobias J, but North Sydney is still current law.

Liability for Animals

Cattle Trespass – o A separate tort

o Abolished in NSW by section 4 of the Animals Act 1977

o Occurs when cattle under the defendant’s control stray onto the plaintiff’s land and cause

damage Cattle must be owned or under the control of the defendant

o Strict liability

No defence available for the defendant o Damages are recoverable for damages to surface of land, infection of cattle by trespassing

livestock, injury to animals and personal injury of the occupier o Distress damage feasance – when stray cattle have done damage and have to be detained

to avoid further damage Abolished in NSW by section 5 of the Animals Act 1977

Scienter –o Means knowingly – refers to the state of mind of the owner of a dangerous animal

(whether or not they had knowledge that the animal was vicious or reasonably should have had said knowledge)

o Cattle trespass and scienter are mutually exclusive – can’t claim in both as cattle trespass

is for non-dangerous animals and scienter is for vicious animalso Classifies animals into two groups:

Ferae naturae – animals that are dangerous to people Defendant is liable for the animals escape even if they took reasonable

care to prevent an escape Higgins v William Inglis & Sons – liability is based not on the escape of

the animal, but on the keeping of the animal after knowledge of its mischievous habits become known

o Established that contributory negligence is not a defence to a

scienter action Mansuetae naturae – animals that are not dangerous to people Classified by the general habits of the species they belong to

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Question of law for the judge – not question for which evidence needs to be called

o Must prove both that the animal had a vicious propensity and that the defendant knew of

said propensity o Behrens v Bertram Mills Circus Pty Ltd -

What needs to be classified as dangerous is the class of the animal, not specific subclasses of that genus

o Abolished in NSW and replaced by the ordinary rules of negligence and nuisance

o Suggested approach:

Common law – Apply recommended method Identify the relevant action – scienter, cattle trespass, negligence etc. Is the animal mansuetae naturae or ferae naturae? If ferae – strict liability

o Case – Higgins

o No defence available except volenti as strict liability

Legislation and Dogs If scietner or cattle trespass in NSW – relevant action is negligence Relevant legislation in NSW is the Companion Animals Act 1998

(NSW). s 25 Liability for injury to person or damage to personal property

(1) The owner of a dog is liable in damages in respect of:

(a) bodily injury to a person caused by the dog wounding or attacking that person, and

(b) damage to the personal property of a person (including clothing) caused by the dog in the course of attacking that person.

Companion Animals Act 1998 s 27 Liability for injury to animal

(1) The owner of a dog is liable in damages in respect of injury (whether or not fatal) to another animal (whether or not a dog, but other than vermin) caused by the dog attacking or chasing it. Dual grounds of liability – chasing and attacking. Even barking at a horse “aggressively” dog liable Coleman v Barrat [2004] NSWCA 27.

The Act does not regulate situations that fall under rules of occupiers’ liability (s 25(2)) unless:

o The dog was ‘dangerous’ within the terms of the Act.

o In the case of injury to a person, the person was lawfully on the property or in the vehicle

occupied by the dog’s owner.

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o Section 25(3) This section does not apply in respect of a police dog or a corrective

services dog

Negligenceo To be liable in negligence –

The conduct of the animal had to be foreseeable on the basis of its past conduct and despite this the defendant failed to exercise said reasonable care

o Keepers of animals ferae naturae owe a very high standard of care

o If the animal is classed as mansuetae naturae, the standard of care and remoteness of the

animal’s action based on the capability for the animal to make a spontaneous action need to be considered

Plaintiff needs to prove that the animal had some particular propensity for vicious behaviour and that the defendant knew or ought to have known of this propensity

o Searle v Wallbank – An owner or occupier of land has no duty to fence their land to

prevent livestock escaping onto the highway o Rule reversed in NSW by section 7 of the Animals Act 1977

o Liability for dogs –

Companion Animals Act 1988 (NSW) Section 25 - Liability for injury to person or damage to personal property

(1) The owner of a dog is liable in damages in respect of: o (a) bodily injury to a person caused by the dog wounding or

attacking that person, and o (b) damage to the personal property of a person (including

clothing) caused by the dog in the course of attacking that person Section 27 - Liability for injury to animal

(1) The owner of a dog is liable in damages in respect of injury (whether or not fatal) to another animal (whether or not a dog, but other than vermin) caused by the dog attacking or chasing it

The Act does not regulate situations that fall under rules of occupiers’ liability (s 25(2)) unless:

The dog was ‘dangerous’ within the terms of the Act. In the case of injury to a person, the person was lawfully on the property

or in the vehicle occupied by the dog’s owner. Section 25(3) - This section does not apply in respect of a police dog or a

corrective services dog

Breach of Statutory Duty Separate tort

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Particular focus on legislation that imposes statutory duties but is silent on whether a private individual who has been harmed by a breach can bring an action against the entity responsible for the breach.

Not all statutory duties give rise to damages as a result of breach Focus is to determine whether a statutory breach will give rise to a private tort claim.

Duty 4 Elements:

4 elements to consider in determining whether the defendant owes the plaintiff a duty of care – a. Is the statutory duty an obligation or a power?

i. Brodie v Singleton Shire Council – The broader the statutory duty, the less likely it is to be considered an obligation

ii. X (Minors) v Bedfordshire County Council – Cases in which statutory duty arises are cases in which the duty is very limited and specific

b. Is the duty enforceable by an action in tort or are there other kinds of enforcement mechanisms?

i. Byrne v Australian Airlines – If there are enforcement mechanisms other than an action in tort, such as a fine or other penalty imposed by legislation, said penalty will go against an action for breach of statutory duty

ii. Cutler v Wandsworth Stadium – Where an Act creates an obligation and enforces the performance of that obligation in a specified manner, that performance cannot be enforced in any other manner

iii. Anderson v McKellar County Council – If a fine or penalty is insufficient in relation to the possible losses that would arise if a breach were established, a private law action would become available

c. Is the duty imposed on the defendant?i. Darling Island Stevedoring and Lighterage v Long – A statutory duty is only

imposed on the person that is in control of operations, it does not extend to the company itself

d. Does the duty protect the plaintiff from the kind of harm suffered?i. Mummery v Irvings –

1. What kind of harm does that statute cover?2. Does the plaintiff fit into the class of person that the statute was trying to

protect?ii. Knapp v Railway Executive – Duty was imposed to protect a different class of

person than the plaintiff, therefore plaintiff had no claim against a breach of statutory duty

iii. Gorris v Scott – The purpose of the legislation in question must be to protect against the kind of harm the plaintiff suffered

nature of the duty.Two possibilities:

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1. Is the duty absolute?o i.e. a person on whom the duty is imposed, most ensure that a certain thing is done. If so,

the only question re breach is “was it done?”

2. Second option: Not absoluteo broad kind of duty that mirrors the common law duty to take reasonable care that

something is doneo parallels the negligence standard.

Determining breach – o 1ST Interpret the nature of the statutory duty

Absolute duty – the person on whom the duty is imposed must comply with the duty

If absolute duty – ask, has the duty been complied with? If no, then the duty has been breached

Galashiels Gas Co Ltd v O’Donnell – Illustrates the importance of identifying the nature of the duty

John Summers & Sons Ltd v Frost – Most extreme case of absolute duty – absolute duty meant that object was unusable

Duty to take reasonable care – Usually implied in legislation o 2nd Identify if the duty has been breached

What kind of obligation does the duty impose?

Determining Causationo Based on the general principles of causation

o Ask – did the breach of statutory duty cause the damage?

o Millington v Wilkie – If the duty is imposed on the defendant and there is nothing more

the defendant could have done to ensure compliance, and the plaintiff disregards the defendants instructions, then the plaintiff should not be able to sue

Causation cannot be satisfied as the plaintiff is responsible for their own injury

Defenceso Volenti – barred in NSW by the Workers Compensation Act 1987

o Contributory negligence

Civil Liability Amendment (Personal Responsibility) Act 2002 – Contributory negligence can be used as a defence in breach of statutory duty actions

Trespass to the Person

Batteryo Intentional and direct application of force to the person of another

o Intentional tort – cannot be committed negligently

o Rixon v Star City –

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There are certain contacts that fall outside the ordinary law of battery. Those contacts are contacts that are ordinarily acceptable as part of the conduct of daily life

o Battery requires the contact to be direct – the conduct of the defendant must result in

direct contact with another Direct does not mean instantaneous

o Fagan v Metropolitan Police Commissioner – Battery requires a positive act – cannot

commit battery through an omission

Assaulto The gist of assault is the creation of a reasonable application of an imminent battery

Plaintiff doesn’t have to be scared, just understand that the battery is imminent o Conditional threat – When someone indirectly threatens someone else (e.g. If it were not

for your ugly face I would shoot you) Tuberville v Salvadge –

It is not the case that conditional threats never amount to an assault – the conditions of the threat must be considered

o Is the person making the threat acting rationally?

o Would it comfort you that the person making the threat made a

conditional threat? Rozsa v Samuels –

The court must look at the circumstances of the case as a whole in determining if the conditional threat in question is an assault

Zanker v Vartzokas – Was the apprehension reasonable? – if so, the reasonable apprehension

must relate to an imminent battery Uncertainty regarding the imminence of the battery can be for or against

the plaintiff’s argumento Usually courts lean towards the plaintiff in said situation

R v Ireland; R v Burstow – Conduct – multiple silent telephone calls Held – reasonable apprehension of imminent battery satisfied as the

defendant made not one but multiple calls to the plaintiff

False Imprisonment o Occurs when the defendant imprisons the plaintiff without lawful authority

o Imprisonment means a total restraint of the plaintiff’s liberty

o Intention – Plaintiff only needs to show that the defendant was responsible for their

imprisonment and that the imprisonment was intendedo Bird v Jones – It is necessary for false imprisonment that the plaintiff’s liberty be

completely restrained unlawfully o Symes v Mahon –

Forcing someone to go somewhere they don’t want to go can also amount to total deprivation of their liberty

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No physical barriers are needed for false imprisonment to occuro R v Deputy Governor of Parkhurst Prison Ex Parte Hague – When in prison a plaintiff

has no liberties, and therefore they cannot be restrainedo Longstanding principle – cant imprison to enforce a contract

o South Australia v Lampard-Trevorrow –

Restraint placed on a young child is not a total restraint of liberty You don’t need to know you were imprisoned to bring an action in false

imprisonment o Dickinson v Waters Ltd –

Police officer didn’t exercise any discretion in his arrest of the plaintiff – arrest was done at the order of the defendant

The total restraint must be a direct result of the defendants conducto Coles Myer Limited v Webster; Coles Myer Limited v Thompson –

If the defendant deliberately gives false information to police resulting in the arrest of the plaintiff, the courts will be likely to infer that the defendant procured the arrest, resulting in false imprisonment

Trespass to LandTrespass to land

– The direct and intentional interference with another’s possession of lando Protects possession not ownership

o Possessing land gives you the rights to it to all except the owner

NSW v Ibbett (2006) o The tort of trespass to land protects the interests of the plaintiff in maintaining the right to

exclusive possession of their place of residence, free from uninvited physical intrusion by strangers

o It is not the concern of the law here to protect title in the sense of ownership, only

possession, but in most cases the party in possession is also the owner Intention

o The intention required to constitute trespass to land is the intention to commit the act that

constitutes the trespass There is no requirement of an intention to commit a wrong

o Said intention requirements result in trespass to land being, in effect, a strict liability tort

Trespass to airspaceo Graham v KD Morris

The defendant’s crane was intruding into the plaintiff’s airspace Held to constitute a trespass

o Bernstein v Skyviews

The defendant took a photo of the plaintiff’s house from the sky while flying above it

Griffiths J – A person in possession of land has the rights to the airspace above it to such a height as it is necessary for the ordinary use and enjoyment of the land

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Held that the aircraft was flying too high above the plaintiff’s land to constitute a trespass

o Section 72(1)

No action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary incidents of the flight) of an aircraft over any property at a height above the ground that is reasonable (having regard to wind, weather and all the circumstances of the case) so long as the Air Navigation Regulations are complied with

Continuing trespasso Non-transitory trespass

o Loss or damage has to result from the trespass to be able to bring an action in tort

o Konskier v Goodman [1928]

The defendant left rubbish on the roof of a house The plaintiff moved in and gained exclusive possession to the house As the rubbish was left on the roof after the new owner moved in, the new owner

could bring an action for trespass to land If the trespass was held to be continuing, then it did not matter that there was a

change in owners, because the trespass was continuing at the time that the new owner moved in

If a defendant’s trespass consists of entering the land, and the defendant leaves something on that land, that constitutes continuing trespass until the item is removed

Licenceso Licence = consent

o If there is consent to the interference with the land, there is no trespass to land

o Lease – Gives the lessee exclusive possession of the land

o Licence – Gives the licensee no interest in the land, only consent to enter the land

Express licence – Can be formal (written agreement) or informal (verbal agreement)

Implied licence – When consent to enter the land is impliedo Halliday v Nevill

Discusses when consent is implied Dispute over whether a police officer had implied consent to enter the

plaintiff’s ;land for the purpose of arresting someone on that land Held – The law will imply a licence to any person to go upon the path or

driveway to the entrance of the dwelling for the purposes of lawful communication with, or delivery to, any person in the house, provided that there is no indication that entry is forbidden or unauthorised

To go onto a path or driveway for a legitimate purpose that in itself involves no interference with the occupiers possession nor injury to the occupier, their guests, or their property provided there is no indication to the contrary

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The implied licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes includes a licence to a member of the police force who goes upon the driveway in the ordinary course of his duty for the purpose of questioning or arresting a trespasser or a lawful visitor upon it

This licence is implied even if the occupier didn’t subjectively intend to give ito Cowell v Rosehill Racecourse Co Ltd

Discusses what happens in the event of a revocation of a licence If the defence is on the plaintiff’s land by express or implied licence which is

later revoked, the defendant does not immediately become a trespasser The law allows for the defendant to leave the plaintiff’s land in a reasonable

amount of time once their licence is revoked The reasonable amount of time is subjective and dependant on the

circumstances of the defendant’s entry

Exceeding a licenceo Lincoln Hunt Australia Pty Ltd v Willesee

Considers whether investigative journalism which involves the journalist going into someone’s property to ask them questions

Held that as the defendant entered the plaintiff’s premises without any intent to do anything under the purpose of their implied licence, then they have exceeded their licence and trespassed

The plaintiff then wanted an injunction to prevent the fruits of the trespass from being distributed

Difficult to achieve, as the traditional remedy for trespass to land is damages

However, if the court fears a future trespass by the defendant, they can issue an injunction to stop the trespass from happening

This didn’t apply in Willesee, as the defendant had gotten what they wanted and weren’t likely to return to the plaintiff’s premises

Private Nuisance The difference between private nuisance and trespass to land is the trespass to land requires a

direct invasion of land in possession of the plaintiff, and private nuisance involves the indirect interference with the possessor’s use and enjoyment of the land

Private nuisance aims to balance the interests of one occupier to enjoy their land against the interests of neighbouring occupiers to be free from unwanted interferences with their ability to use and enjoy the land

o Said balance is determined by the concept of a reasonable user – if the defendant’s use of

their land is that of a reasonable user, then there can be no liability in private nuisance

Interests protectedo Nuisance protects interests in land

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o Hunter v Canary Wharf Limited

Only a person who has exclusive possession of the land can sue in nuisance Interests in land consist of damage to property and damage to amenity

o St Helen’s Smelting Corporation v Tipping

The defendant ran a metal smelting company Fumes (acid gas) from the smelting blew across the plaintiff’s land causing death

to all of his foliage (material damage) The defendant argued that he was not using his land unreasonable, as St Helens

was an industrial area, and it was reasonable to expect fumes to come from an industrial area

Held that it doesn’t matter where a nuisance took place (the locality) if the consequence of the defendant’s action caused material damage to the plaintiff’s property

However, if the defendant’s actions interfered with the amenity of --the plaintiff’s land, the locality must be taken into account when determining reasonable use

o Victoria Park Racing v Taylor

The defendant was interfering with the plaintiff’s profitable enjoyment and use the their land

Held that one can’t claim under private nuisance, as a mere claim of loss of profit does not constitute a loss of amenity

Factors to consider when determining reasonable usero The locality of the defendant’s land – as per Tipping, only in cases of amenity damage

Munro v Southern Dairies The defendant ran a dairy, which included a stables The dairy was adjacent to the plaintiff’s suburban property The plaintiff claimed that the smell from the horses interfered with the

amenity of his land Held that the locality of a stables adjacent to a quiet suburban area was

not reasonable use of the defendant’s land Clarey v The Principal and Council of the Women’s College

The plaintiff let an old weatherboard building to university students (the defendant)

The plaintiff claimed that the defendant interfered with the amenity of its land because of the noise that was made by the defendant, which included moving furniture, talking, and getting ready for bed

Held that such actions were not an unreasonable use of the land by the defendant’s

When living in close proximity to another, one can’t expect to live in an environment free of noise

Southwark Borough Council v Tanner The plaintiff lived in council housing supplied by the defendant

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The plaintiff claimed for loss of amenity, as he could hear every noise that the other tenants made due to the thin walls between their and their neighbours premises

Lord Millet held that if the acts complained of were:o Necessary for the common and ordinary use and occupation of

the land and;o Were done with the proper consideration for the interests of

occupying neighbours Then no action would lie in private nuisance

o The sensitivity of the plaintiff’s use of their land

Robinson v Kilvert The plaintiff worked on the upper level of the building making a special

kind of paper The defendant worked on the lower level making cardboard, and

generated a lot of heat in doing so The plaintiff claimed damage to material property, as the heat rose and

adversely affected his paper Held that the plaintiff had no claim, as he was putting the land to

sensitive use by making that special kind of papero The time and duration of the damage to amenity

Where the interference is of a non-permanent nature (non-continuous smells, noise or vibrations) the length of time that the interference continues and the intensity of the interference will be relevant to determining is the interference amounts to a private nuisance

Munro v Southern Dairies The smell was intense and was present for a great length of time

o Improper motive

Considers the motive of the defendant in causing the nuisance – the defendant will have much less licence to cause private nuisance if they are doing it solely to annoy the plaintiff

Christie v Davey The defendant and plaintiff were neighbours in a duplex The plaintiff was a musical family The defendant greatly disliked the plaintiff’s music The defendant chose to make his own ‘music’ consisting of annoying

noises The plaintiff sought an injunction against the defendant

Liabilityo The creators of the nuisance

Fennel v Robson Excavations Pty Ltd Anyone who creates nuisance can be liable in public nuisance

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o The occupier adopting or continuing a nuisance

Sedleigh-Denfield v O’Callaghan The local council, without the knowledge or consent of the defendant,

created a nuisance Held that a defendant can be liable if they adopted or continued the

nuisanceo The defendant had to have knowledge of the nuisance

o Once the defendant has knowledge of the nuisance, they must

take reasonable steps to remove/fix the nuisanceo Acts of nature

Damages which occurs as a consequence of the natural condition of the defendant’s land

Hargrave v Goldman A lightning storm set fire to a tree on the defendant’s property The defendant took minimal steps to put out the fire The fire spread to the plaintiff’s property Held that an occupier of land who passively suffers a nuisance to

continue may be liable although he did not originally create the nuisance It is not an essential element in liability for a nuisance that it must

emanate from the land of the defendant Applied principle in Sedleigh-Denfield – an occupier of land continues a

nuisance if, with knowledge of its existence, he fails to take any reasonable means to bring it to an end

Defenceso Coming to the nuisance – the only reason that the plaintiff suffered damage is because

they decided to move in the vicinity of what caused it No longer a valid defence

Miller v Jackson o The plaintiff bought a house in a housing development next to a

cricket groundo The plaintiff claimed that she suffered damage from the cricket

balls falling into her propertyo Held – long held that coming to a nuisance is not a valid defence

– in determining a nuisance, the reasonable user factors must be considered

o Statutory authority – The defendant can argue that they are authorised to do what caused

the nuisance by a statutory authority Abolished the right of a plaintiff to enjoy their land in favour of the public

interest 2 different types of statutory authority

Mandatory – the nature of the statute means that the act causing the nuisance has to be done in a certain place

o Valid defence if the act is carried out without any negligence

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Permissive – The statute allows the act causing the nuisance to be done, but it is not required

o The defendant must show that the act was carried out without

any negligence, and that the act couldn’t have been carried out in any other way without creating a nuisance

o Defence will fail if the defendant cannot prove that the carrying

out of the act did not inevitably cause the nuisance Ryan v Victoria (City)

Statutory authority provides a narrow defence to nuisance The traditional rule is that liability will not be imposed if an activity is

authorised by statute and the defendant proves that the nuisance is the inevitable result or consequence of exercising that authority

Tock v St John Metropolitan Area Board The defendant must negate that there are alternative methods of carrying

out the work The mere fact that one method is considerably less expensive will not

avail If any one method is practicably feasible, it must be established that it

was practically impossible to avoid the nuisance Lester-Thomas v City of Frankston

A golf course was run by the defendant The defendant said that they operated the golf course under permissive

powers The statutory authority defence failed as the defendant wasn’t able to

establish that they couldn’t have operated the golf course in a way that did not create a nuisance

Remedieso Self-help – Where the plaintiff is allowed limited rights of abatement to handle the matter

without going to court Not encouraged by the law, as it often creates more problems

o Damages – Damages awarded for intereference to land and consequential losses

o Injunction

Prohibitory injunction – Stops certain conduct Limiting injunction – Places limits on certain conduct When considering whether an injunction or damages are used as a remedy, the

losses of the plaintiff must be weighed up with the loss of the defendant from having to stop their activity

Shelfer v City of London Electric Lighting Co In my opinion, it may be stated as a good working rule that

o (1) If the injury to the plaintiff's legal rights is small,

o (2) And is one which is capable of being estimated in money,

o (3) And is one which can be adequately compensated by a small

money payment,

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o (4) And the case is one in which it would be oppressive to the

defendant to grant an injunction:-then damages in substitution for an injunction may be given

There may also be cases in which, though the four above-mentioned requirements exist, and the defendant by his conduct, as, for instance, hurrying up his buildings so as if possible to avoid an injunction, or otherwise was acting with a reckless disregard to the plaintiff's rights, and has disentitled himself from asking that damages may be assessed in substitution for an injunction

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