COURSE DESCRIPTION AND OBJECTIVES

PAGE

1

LAW EXTENSION COMMITTEE

UNIVERSITY OF SYDNEY

03 TORTS SUBJECT GUIDE

Summer SESSION 2007-08

Course Description and Objectives

1

Teachers

1

Assessment

1

March 2008 Examination

1

Lecture Program

2

Weekend Schools 1 and 2

4

Texts and Materials

4

Assignment

5

Assignment Questions

5

Lecture Outlines

6

Prescribed Topics and Course Outline

12

Sample Worked Answers

22

Case Note Example

35

LAW EXTENSION COMMITTEESummer 2007-08

03 TORTS

COURSE DESCRIPTION AND OBJECTIVES

A tort is a civil wrong that results in physical or psychiatric injury, property damage or financial loss to another or by which anothers legal rights are infringed. A plaintiff who has suffered injury or loss due to a tort committed by the defendant will generally be seeking compensation by way of damages.

Liability depends on a range of factors including the nature of the defendants conduct, his or her state of mind at the time, and the consequences of the conduct. The course includes the study of a number of important torts such as trespass, which protects a person from unwanted physical contact or threats; negligence; and related issues such as defences, assessment of damages and concurrent liability. The course examines the traditional Common Law doctrines that underpin the core principles in Torts and the extent to which statutory developments have influenced the scope of liability.

The course in Torts also serves an important introductory role to the study of law. It is a subject which requires an understanding of the development of the common law and the relationship between statute and common law. It also introduces students to methods of applying legal rules and arguments to factual situations and requires the development of skills in the interpretation of case law, legal and theoretical analysis, and clear and accurate legal writing. The course therefore provides an important measure of the students capacity to undertake legal studies and practice.

Teachers

Professor Sam Blay, LLB (Hons) (Ghana), LLM (ANU), PhD (Tas)

Professor Blay is Professor of Law at the University of Technology, Sydney.

Mr Greg Young, BEc, LLB (Syd)

Mr Young is a barrister practising in Sydney in a variety of torts and contracts matters. He is an accredited specialist in personal injury law and examiner for the Law Society and has practised in New South Wales since 1990. Greg has special interest in the impact of administrative law on tort law reform. He has taught for the Law Extension Committee since 2003.

ASSESSMENT

To be eligible to sit for the Boards examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.

Then, students must achieve a satisfactory result (at least 50%) in each subject where a compulsory component is prescribed.

To register with the LEC, go to www.usyd.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.

march 2008 EXAMINATION

Candidates will be expected to have studied the prescribed topics: Definition, aims and scope of the law of torts; Intentional torts; Negligence; Assessment of damages for personal injury and death; Loss of services; Concurrent liability; Fatal accidents; Breach of statutory duty; Nuisance and Liability for animals.

Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and to have analysed cases and statutory provisions referred to in the Law Extension Committee's course outline.

All queries regarding the Torts examination should be directed to the Legal Profession Admission Board.

LECTURE PROGRAM

Lectures in Torts will be held on Fridays from 6 pm until 9 pm commencing on 16 November 2007. Lectures will be held in the Eastern Avenue Auditorium (EAA) and Carslaw Lecture Theatre 157 (CLT 157), please see program below for dates and venues. For details as to the location of these venues refer to the back page of the Course Information Handbook for a map of the University of Sydney main campus.

This program is a general guide and may be varied according to need. Readings are suggested to introduce you to the material to be covered in the lecture, to enhance your understanding of the topic, and to encourage further reading. You should not rely on them alone.

WEEK

VENUE

TOPIC

1

16 Nov

EAA

1. Introduction

(1) The meaning of a tort

(2) The aims and objectives of torts law

2. Intentional Torts

(1) Trespass and Case

(a) Historical distinctions

(b) Fault in Trespass

(2) Trespass to the Person

(a) Battery

(b) Assault

2

23 Nov

EAA

(c) False Imprisonment

(d) Damages

(3) Trespass to Land

(a) Scope of the tort

(b) Title to sue

(c) Legislation

(d) Remedies

(4) Interference with Goods

(a) Trespass to goods

(b) Conversion

3

30 Nov

CLT 157

(c) Detinue

(d) Damages

(5) Actions on the Case for Wilful Injury

(6) Defences to intentional torts

(aa) Mistake

(a) Consent

(b) Contributory Negligence

(c) Necessity

(d) Illegality

(e) Defence of person/ property

(f) Intellectual disability

4

7 Dec

CLT 157

3. Negligence

General overview of the tort

Duty of Care

WEEK

VENUE

TOPIC

5

14 Dec

EAA

Breach of Duty

(a) Standard of care

(b) Proof of negligence

6

21 Dec

No lecture scheduled on Friday 21 December 2007

(Cancelled due to Main Campus Christmas Closure)

Study Break: Saturday 22 December 2007 Sunday 13 January 2008

7

18 Jan

EAA

Damage

(a) Causation

(b) Remoteness

(c) New act intervening

8

25 Jan

EAA

4. Particular Duty Areas in Negligence

(a) Products Liability

(b) Defective Structures

(c) Nervous Shock

9

1 Feb

CLT 157

Particular Duty Areas in Negligence cont.

(d) Pure Economic Loss

(e) Negligent Misstatement

(f) Liability of Statutory Authorities

10

8 Feb

EAA

5. Vicarious/Concurrent Liability

(a)Contribution between tortfeasors

(b) Liability for Employees

(c) Contribution and Indemnification between employer and employee Agency

6. Nuisance

(1) Private Nuisance

(a) Interests protected

(b) Title to sue

(c) Unreasonable and substantial interference

(d) Sensitive plaintiff

(e) Basis of liability

(f) Defences

(2) Public Nuisance

(a) General Principles

(b) Highway Authorities

11

15 Feb

EAA

7. Defences

(a) Contributory negligence

(aa) Meaning

(ab) Apportionment

(b) Voluntary Assumption of Risk

(c) Illegality

12

22 Feb

CLT 157

8. Remedies for Negligent Conduct: Damages

Personal injury

(a) Common Law

(b) Statute

Death

Claimants

WEEKEND SCHOOLs 1 AND 2

There are two weekend schools primarily for external students. Lecture students may attend but are requested to note that weekend classes aim to cover the same material provided in weekly lectures and are for the assistance of external students. Please note that it may not be possible to cover the entire course at the weekend schools. Attendance at the weekend schools is voluntary, but external students are encouraged to attend.

It is envisaged that the following topics will be covered at the weekend schools:

Weekend School 1

Saturday 1 December 2007: 4.00pm - 8.00pm in Eastern Avenue Auditorium (EAA)

Topic One

Definition, aims and scope of law of torts

Topic Two

Intentional torts

Sunday 2 December 2007: 8.00am - noon in Carslaw Lecture Theatre 159 (CLT 159)

Topic Three

The tort of negligence

(1) Duty of care

Weekend School 2

Saturday 2 February 2008: 4.00pm - 8.00pm in Eastern Avenue Auditorium (EAA)

Topic Three

The tort of negligence

(1) Duty of care (contd)

(2) Breach of duty

(3) Damage

(4) Particular Areas of Negligence

Topic Four

Pure Economic Loss

Loss of services

Topic Five

Vicarious/Concurrent liability

Sunday 3 February 2008: 8.00am - noon in Eastern Avenue Auditorium (EAA)

Topic Six

Nuisance

Topic Seven

Defences

Topic Eight

Remedies for Negligent Conduct: Damages personal injury/death

Topic Nine

Revision

texts and materials

Course Materials

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)

Prescribed Materials

Blay, Gibson and Richards, Torts Law in Principle, 4th ed. Thomson Lawbook, 2005 OR

Balkin and Davis, Law of Torts, 3rd ed. LexisNexis Butterworths, 2004.

Luntz & Hambly, Torts - Cases and Commentary (Revised 5th ed.) LexisNexis Butterworths, 2006

Reference Materials

Blay, Torts in a Nutshell, 5th ed. Thomson Lawbook, 2006

Fleming, Law of Torts, 9th ed. Thomson Lawbook, 1998 (out of print)

Swanton, McDonald and Anderson, Cases on Torts, 3rd ed. Federation Press, 2002

Trindade and Cane, The Law of Torts in Australia, Oxford University Press, 3rd ed. 2001

Stuhmcke, Essential Tort Law, 2nd ed. Cavendish Publishing, 2001

McGlone & Stickley, Australian Torts Law, LexisNexis Butterworths, 2005

LEC Webcampus

Once you have registered online with the LEC, you will have full access to all the facilities on the Webcampus including detailed lecture outlines, including the readings for each week, which will be provided on the Course Materials section on the LEC Webcampus in the week before lectures commence. Links to relevant cases and legislation can also be found on the LEC Webcampus.

ASSIGNMENT

In Torts, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. Students must submit the assignment by the due date (no extensions will be granted), and achieve a grade of at least 50%. The maximum word limit for the assignment is 1200 words (inclusive of all footnotes but not bibliography).

The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.

If you do not achieve 50% or more in the compulsory assignment, you will be contacted by the LEC regarding your eligibility to sit the examination.

The completed assignment should be lodged through the LEC Webcampus by 9.00am on the following date:

Compulsory Assignment

Tuesday 15 January 2008

(Week 7)

ASSIGNMENT QUESTIONS

To obtain a copy of the Torts assignment for the Summer Session 2007-08, please follow the instructions below:

1. Register online with the LEC (see page 27 of the Course Information Handbook for detailed instructions). Once you have registered, you will have access to all the facilities on the LEC Webcampus.

2. Then go into the Webcampus, select the Course Materials section and click on the link to the Assignment questions for this subject.

lecture outlines

Lecture 1

TopicS

1.Definition, Aims and Scope of the Law of Torts.

2.Intentional torts: Intentional torts to the person.

Trespass:

Battery

Assault

False imprisonment

Issues

1.What is a tort?

2.What is the difference between a tort and a crime?

3.What is the aim of the law of torts?

4.What systems are in place for the achievement of those aims?

5.How may torts be classified?

6.What is the difference between trespass and an action on the case?

7. What is battery and what is assault?

8. What is false imprisonment?

Structure

Baker, Blay et al [1.05- 5.105], course outline 2(1) to 2(2)(b).

OBJECTIVES

At the end of this lecture students should be able to:

1.Trace the historical development of trespass from a crime to a tort.

2.List the three elements that are common to all trespasses.

4.Discriminate between highway and non-highway trespasses for the purposes of allocation of onus of proof to a plaintiff or a defendant.

5.Explain the failure of the torts of trespass to provide a remedy for indirect acts or for omissions, even if that conduct causes the plaintiff harm.

6.State the one element common to all actions on the case.

7.Define assault, battery and false imprisonment.

8.List the elements of battery, assault and false imprisonment.

9.Describe the difference between battery, assault and false imprisonment.

10.Apply the elements of each of the torts to a given fact situation.

Lecture 2

TOPIC

Intentional Torts: Intentional Torts to Property

Trespass to land

Trespass to chattels/goods

Conversion

Detinue

ISSUES

1. What is trespass to land?

2. Who has the right of action in trespass to land?

3. What are the remedies for a trespass to land?

4. What torts protect goods?

5. Who has the right of action in trespass to goods, conversion and detinue?

STRUCTURE

Baker, Blay et al [6.05.55-7.95], course outline 2(2)(b) to 2(4)(c).

OBJECTIVES

At the end of this lecture students should be able to:

1. Define Land at common law.

2. Describe some fact situations in which the courts have found that trespass to land exists.

3. State the pre-requisites of an entitlement to sue in trespass to land.

4. List the available remedies for trespass to land.

5. Define trespass to goods, conversion and detinue.

6. Compare and contrast the torts with reference to their elements, entitlement to sue, type of interference that can comprise the tort, when the cause of action accrues, available remedies and the nature of damages that are awarded.

Lecture 3

TOPIC

Action on the case for wilful injury

ISSUES

1. What is the liability of a party who intentionally causes an indirect injury to another?

2. What constitutes an intentional act for the purposes of this tort?

3. What are the main elements of this tort?

4. What features distinguish this tort from other intentional torts?

Structure

Balkin and Davis [3.21- 3.23], course outline 2(5).

Objectives

At the end of this lecture students should be able to:

1. Describe the elements of an action on the case for wilful injury.

2. Compare and contrast this tort with battery and other intentional torts to the person.

3. Describe fact situations that may give rise to this tort.

4. Assess the scope of the tort.

Lecture 3 (continued)

TOPIC

Defences to intentional torts

ISSUES

1. The nature and scope of a defence to an action in torts.

2. The principal defences in torts.

3. The effect of certain defences on the award of damages.

Structure

Baker, Blay et al [8.05-8.125], course outline 2(4)(c) to 3.

Objectives

At the end of this lecture students should be able to:

1. Explain the nature of a defence to an action in tort.

2. Distinguish between a defence to a tort and a denial of a tort.

3. Explain the various defences available in intentional torts and the circumstances in which they may be pleaded.

Lecture 4 Topic

Negligence, Duty of Care.

Issues

1.What is Negligence as opposed to negligence?

2.What are the elements of the tort of negligence?

3.What types of loss are recoverable in negligence?

4.When, in law, does one owe another a duty to be careful?

5.In what circumstances have the courts found this duty of care to exist?

6. To what extent does the Civil Liability Act restrict or enhance the scope of Negligence?

Structure

Baker, Blay et al [9.05-10.115] incl. course outline 3(1)(a) to (ag).

Objectives

At the end of this lecture students should be able to:

1.List and explain the elements of the tort of negligence.

2.Distinguish matters of law and matters of fact within these elements.

3.Describe how the courts have dealt with matters of law to limit the floodgates opening to plaintiffs in the tort of negligence.

4.Explain the development of the requirements for the court to find that a duty of care exists.

5.Write a case comment on Donohue v Stevenson [1932] AC 562.

6.Explain the dictum of Lord Aitken in Donohue v Stevenson.

7. Explain the current scope of Negligence within the Civil Liability Act.

Lecture 5TOPICS

Breach of Duty

Standard of Care

Proof of Negligence

ISSUES

1. What is the content of the standard of care?

2. How do the courts assess breach of duty?

3. To what extent does the Civil Liability Act limit the scope of the standard of care?

STRUCTURE

Baker, Blay et al [11.05-11.145]; [14.05-14.45]

OBJECTIVES

At the end of this lecture students should be able to:

1. Define standard of care.

2. Explain that the standard of care can also be seen as the minimum content of the duty to take care.

3. State that the standard of care is measured objectively.

4. Define a breach of duty as a failure to fulfil a duty or as a failure to do the minimum necessary to avoid a breach of duty or as a failure to meet the standard of care required.

5. State the objective and subjective elements in the steps taken to ascertain whether a breach of duty of care has occurred.

6. Explain the scope of the duty of care within the context of Civil Liability Act.

Lecture 6TOPICS

Damage

ISSUES

1. Must there be a connection between the breach of duty and the harm suffered?

2. Are there any limitations on the kind or extent of harm that the courts will regard as compensable by damages?

3. Can the link between breach of duty and harm suffered by a plaintiff be broken?

4. What is the role of causation in establishing damage?

5. The distinctions between factual and legal causation.

6. A Critique of the but for test: Is the test still relevant?

STRUCTURE

Baker, Blay et al [12.05-12.170]

OBJECTIVES

At the end of this lecture students should be able to:

1. Explain the fundamental principles underpinning causation and remoteness of damage in negligence.

2. Demonstrate how and why a defendant who owes a plaintiff a duty of care and breaches it may still escape liability in the tort of negligence.

3. Explain the significance of the causative link between breach of duty and the damage suffered by the plaintiff.

4. Explain the traditional but for test and note problems associated with it in resolving issues of causation.

5. Understand and explain issues of multiple causation.

Lecture 7: Particular Duty Areas in Negligence

TOPICS

Control of others

Medical practitioners

Products Liability

Rescuers

Occupiers Liability

The Unborn Child

Defective Structures

Nervous Shock

ISSUES

1.What special consideration if any, applies to special duty situations?

2. In what circumstances have the courts determined that such special duty arises?

3. Can an unborn child be owed a duty of care?

4. What distinctions if any, exist between wrongful life and wrongful birth?

5. What principles underpin the position of rescuers?

6. The implications of the Civil Liability Act.

STRUCTURE

Baker, Blay et al [10.1-10.100]

OBJECTIVES

At the end of this lecture students should be able to:

1. Explain the principles that distinguish the particular duty areas in Negligence.

2. Explain the characteristics of and the legal principles underlying the recognition of nervous shock as damage in Tort law.

3. Explain the implications of the Civil Liability Act on the relationship between medical practitioners and patients.

4. Explain the principles governing pre-natal injuries in Torts.

Lecture 8

TOPICS

Pure economic loss

ISSUES

1.What is pure economic loss?

2.In what circumstances have the courts determined that it arises?

3.What are the pre-requisites for the existence of a duty to avoid pure economic loss?

STRUCTURE

Baker, Blay et al [9.55-9.180]

Lecture 9

TOPICS

Vicarious/Concurrent Liability

ISSUES

1. Contribution between tortfeasors

2. Liability for Employees

3. Contribution and Indemnification between employer and employee Agency

STRUCTURE

Baker, Blay et al

TOPICS

Nuisance

ISSUES

1.The essential differences between private nuisance and public nuisance?

2.Title to sue in private nuisance.

3.Who bears the cost of abatement in private nuisance?

STRUCTURE

Baker, Blay et al [17.05-16-85]

OBJECTIVES

At the end of this lecture students should be able to:

1. State the elements of private nuisance.

2. Describe some fact situations in which the courts have found that private nuisance exists.

3. Explain why the facts that give rise to a cause of action in private nuisance will usually exclude an action in trespass to land.

4. Cite the entitlement to sue in private nuisance.

5. Describe and apply any defences to private nuisance.

6. Describe the interests covered by public nuisance.

7. Describe the circumstances in which an individual can bring an action in public nuisance.

Lecture 10: Defences to Negligence

TOPICS

Contributory Negligence

Voluntary Assumption of Risk /Volenti non fit injuria

Illegality

ISSUES

1. The scope of contributory negligence.

2. The principles of apportionment.

3. The relationship between voluntary assumption of risk, diminished standard of care and contributory negligence.

STRUCTURE

Baker, Blay et al [13.05-13.145]

OBJECTIVES

At the end of this lecture students should be able to:

1. Explain the basis of contributory negligence and the principles of apportionment.

2. Outline the differences and the relationship between voluntary assumption of risk, diminished standard of care and contributory negligence.

3.Outline the central factors taken into consideration by the courts in dealing with these defences.

4.Explain in detail when and why a particular defence may be most appropriate.

Lecture 11

TOPICS

Damages for personal injury.

ISSUES

1. What are the main principles that determine the award of damages in a particular claim?

2. To what extent have these principles been affected by statute and in particular the Civil Liability Act.

3. Is death treated in the same way as injury for the purposes of the estimation of an award of damages?

STRUCTURE

Baker, Blay et al [23.05-23.115]

OBJECTIVES

At the end of this lecture students should be able to:

1.Describe the common law principles governing the award of damages in an appropriate case.

2.State the application of and effect of the Motor Accidents Compensation Act, 1999 on 1. above.

3Explain and describe the impact of the Civil Liability Act on the award of damages for personal injury.

prescribed topics and course outline

1.Definition, aims and scope of law of torts2.Intentional torts

(1)Trespass and the action on the case

(a)The historical distinction

Hutchins v Maughan [1947] VLR 131

Williams v Milotin (1957) 97 CLR 465

(b)Fault in trespass

* Venning v Chin (1974) 10 SASR 299

Platt v Nutt (1988) 12 NSWLR 231 (CB. pp677)

(2)Trespass to the person

(a)Battery

Rixon v Start City Pty Ltd [2001] NSWCA 265

Collins v Wilcock [1984] 1 WLR 1172 (CB. pp683)

Platt v Nutt (1988) 12 NSWLR 231

In re F [1990] 2 AC 1

Rozsa v Samuels [1969] SASR 205

(b)Assault

Hall v Fonceca [1983] WAR 309

* Barton v Armstrong [1969] 2 NSWLR 451

Zanker v Vartzokas [1988) 34 Crim R 11

Burton v Davies [1953] St Rep. Qd 26

(c)False imprisonment

Bird v Jones (1845) 7 QB 724

Ruddock v Vadarlis (2001) FCR 491

The Balmain New Ferry Co v Robertson (1906) 4 CLR 379

Symes v Mahon [1922] SASR 447

Dickenson v Waters (1931) 31 SR (NSW) 593

Herd v Weardale Steel Coke and Coal Co [1915] AC 67

Murray v Ministry of Defence [1988] 1 WLR 692

(3)Trespass to land

(a)Scope of the tort

Bernstein (Baron) v Skyviews & General Ltd [1978] QB 479

Kelsen v Imperial Tobacco Co [1957] 2 QB 334

Halliday v Nevill (1984) 155 CLR 1

Plenty v Dillon (1991) 171 CLR 635 (CB. pp764)

Lincoln Hunt Australia v Willesee (1986) 4 NSW LR 457

L J P Investments v Howard Chia Investments (1989) Aust Torts Rep 80-269

(b)Title to sue

Newington v Windeyer (1985) 3 NSWLR 555

MacIntosh v Lobel (1993) 30 NSWLR 441

Coles-Smith v Smith [1965] Qd R 494

(c)Remedies

Burton v Winters [1993] 3 All ER 847

Parramatta CC v Lutz (1988) 12 NSWLR 293

Campbelltown CC v Mackay (1989) 15 NSWLR 501

X L Petroleum (NSW) v Caltex Oil (Australia) (1985) 155 CLR 448

(4)Interference with goods

(a)Trespass to goods

Fouldes v Willoughby (1841) 151 ER 1153

* Penfolds Wines v Elliott (1946) 74 CLR 204

(b)Conversion

Willis v British Car Auctions [1978] 1 WLR 438

Howard E Perry v British Railways Board [1980] 1 WLR 1375

Parker v British Airways Board [1982] QB 1004

(c)Detinue

General and Finance Facilities v Cooks Cars (Romford) [1963] 1 WLR 644

(d)Damages

The Medina [1900] AC 113

Butler v The Egg and Egg Pulp Marketing Board (1966) 114 CLR 185

The Winkfield [1902] P 42

General and Finance Facilities v Cooks Cars (Romford) [1963] 1 WLR 644

(5)Action on the case for wilful injury

Bird v Holbrook (1828) 130 ER 911

* Wilkinson v Downton [1897] 2 QB 57

Bunyan v Jordan (1936) 57 CLR 1

Carrier v Bonham [2001] QCA 234

(6)Defences to intentional torts including

(a)Mistake

(b)Inevitable accident

(c)Consent

Sibley v Milutinovic Aust. Torts Reps 81-013

Secretary, Dept. of Health and Community Services v JWB (Marions Case) (1992) 175 CLR 218

Giumelli v Johnston (1991) Aust Torts Rep 81-085

Minors (Property and Contracts) Act 1970 (NSW), ss 14, 49

Children (Care and Protection) Act 1987 (NSW), ss 20A, 20B

(d)Medical Procedures

(e)Necessity

* Southwark London Borough Council v Williams [1971] 1 Ch 734

Re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam. 147

State of Queensland v Nolan 2002 1Qd R 454

Murray v McMurchy [1949] 2 DLR 442

(f)Illegality

Gollan v Nugent (1988) 166 CLR 18

(g)Defence of the person, defence of property

Fontin v Katapodis

(h)Intellectual disability

3.The tort of negligence:

(1)Duty of care

Development of concept

Donoghue v Stevenson [1932] AC 562

Grant v Australian Knitting Mills [1936] AC 85

Jaensch v Coffey (1984) 155 CLR 549

S 5B The Civil Liability Act 2002

(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 persons position would have taken those precautions.

Reasonable Foreseeability

Nova Mink v Trans Canada Airlines (1951) 2 DLR 241

Palsgraf v Long Island Railway Co. (1928) 162 NE 99

The Scope of Reasonable Foreseeability

Chapman v Hearse (1961) 106 CLR 112

United Novelty Co. v. Daniels 42 So. 2nd 395 Miss 1949

Proximity: Recent Trends in the Explanation of the Scope

Sutherland Shire Council v Heyman (1985) 157 CLR 424

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520

Bryan v Maloney (1995) 128 ALR 163

Nagle v Rottnest Island Authority (1993) 177 CLR 423

Northern Sandblasting v Harris (1997) 146 ALR 572

Hill v Van Erp (1997) 71 ALJR 487

Pyrenees Shire Council v Day (1998) ALJR 1

Perre v Apand (1999) 73 ALJR 1190

(a)To Whom is the Duty Owed?

(aa)Consumers

* Donoghue v Stevenson [1932] AC 56.

(ab)Users and Purchasers of premises

* Hackshaw v Shaw (1984) 155 CLR 614

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479

Bryan v Maloney (1995) 128 ALR 163

(ac)Rescuers

* Chapman v Hearse (1961) 106 CLR 112

(ad)School Children

Geyer v Downs (1977) 138 CLR 91

(ae)Pre-natal injuries and wrongful life

McKay v Essex Area Health Authority [1982] QB 1166

Watt v Rama [1972] VR 353

X v Pal (1991) 23 NSWLR 26

Lynch v Lynch (1991) 25 NSWR 491

(af) Unforeseeable Plaintiffs

Bourhill v. Young [1943] AC 92

Levi v. Colgate-Palmolive Ltd (1941) SR (NSW) 48.

Haley v. L.E.B. [1965] A.C. 778

(ag) Qualifications to the Duty of Care

-Novus Actus Interveniens:

Chapman v. Hearse

-The opportunity for intermediate examination:

Farr v. Butters [1932] 2 K.B. 606

Grant v. AKM.

(2.1)Breach of duty

[2.2] The Calculation of the Negligence "Calculus"

S 5B The Civil Liability Act 2002

(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.

Wyong Shire Council v. Shirt (1980) 146 CLR 40; 29 ALR 217 at 221

Niewman v. John Ellison Hire Pty. Ltd. (1987) 48 SASR 492 at 495

Webb v. State Government of South Australia (1982) 43 ALR 462

[2.2.1] The Likelihood of the Injury

Bolton v. Stone [1951] A.C. 850

[2.2.2] The Seriousness of the Risk and the Gravity of the Injury

Paris v. Stepney BC [1950] 1 KB 320; [1951] 1 All ER 42

Bryden v. Chief General Manager of the Health Department (1987) Aust. Torts Rep. 80-075

Haileybury Collage v. Emmanuelli [1983] 1 VR 323

[2.2.3] The Utility of the Act of the Defendant

E. v Australian Red Cross Society (1991) 31 FCR 299

South Australian Ambulance Transport Inc. v. Walhdeim (1948) 77 CLR 215

Rigby v. Chief Constable of Northamptonshire [1985] 2 All ER 985; [1985] 1 WLR 1242

[2.2.4] The Cost of Avoiding the Harm

Caledonian Collieries Ltd. v. Speirs (1957) 97 CLR 202

[2.2.5] The peculiar or particular background of the defendant

(i) infants:

McHale v. Watson (1964) 111 C.L.R. 384.

(ii) Lunatics:

Adamson v. M.V. Ins. Trust [1956] WALR. 58.

(iii) Professional Persons:

Phillips v. Whitely [1938] 1 All E.R. 566

Jones v. Manchester Corp. [1952] 2 Q.B. 852.

Rogers v. Whitaker (1993) 67 ALJR 47

[2.2.6] The dangerous nature of the activity

Adelaide Chemical & Fertilizer Co. v. Carlyle (1940) 64 C.L.R. 514.

[2.2.7] The gravity of the injury to the particular plaintiff:

Paris v. Stepney Borough Council [1951] A.C. 367

[2.2.8] The current state of knowledge

Roe v. M.O.H. [1954] 2 Q.B. 66.

[2.3] Pre-existing knowledge of the defendant's incapacity: What three defences might arise when P. knows that D. is unable to meet the normal standard?

Insurance Commissioner v. Joyce (1948) 77 C. L. R. 39

Cook v. Cook (1986) 162 C. L. R. 376.

(3) Proof of Negligence

[3.1] General Civil Liability Act 5E:

In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Cook v. Lewis [1952] 1 D.L.R. 1.

Holloway v. McFeeters (1956) 94 C.L.R. 470.

T.N.T. v. Brooks (1979) 23 ALR. 345.

[3.2] Res ipsa loquitor

Scott v. London & St. Katherine Docks Co. (1965) 158-159 All ER

Cassidy v. M.O.H. [1951] 2 K.B. 343.

Mahon v. Osbone [1939] 2 K.B. 14.

Roe v. M.O.H. [1954] 2 Q.B. 66.

Schellenberg v Tunnel Holdings Pty Ltd 9200) 74 ALR 743

[3.3] The Effect of the Doctrine

Nominal Defendant v, Halsbauer (1967) 117 C.L.R. 448.

(4)Damage

(a)Causation

The Civil Liability Act 2002 s5D

(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 persons liability to extend to the harm so caused (scope of liability).

The But for Test:

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

SRA of NSW v Wiegold (1991) 25 NSWLR, 500*

March v Stramare (1991) 171 CLR 506

Bennett v Minister of Community Welfare (1992) 176 CLR 408

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

(b)Multiple sufficient causes

Performance Cars Ltd v Abraham (19620 1QB 33

Baker v Willoughby [1970] AC 476

Faulkner v Keffalinos (1970) 45 ALJR 80

Jobling v Associated Dairies [1982] AC 794

(c)Intervening causes

* Chapman v Hearse (1961) 106 CLR 112

Haber v Walker [1963] VR 339

Mahony v J Kruschich (Demolitions) (1985) 156 CLR 522

Pitt Son and Badgery v Proulefco (1984) 153 CLR 644

Muller v Lalic [2000] NSW CA 50

(d)Remoteness

* Overseas Tankship (UK) v Morts Dock and Engineering Co [1961] AC 388

Overseas Tankship (UK) v The Miller Steamship Co [1967] AC 617

Nader v Urban Transit Authority (1985) 2 NSWLR 553

4.PARTICULAR DUTIES IN NEGLIGENCE

Defective Structures

[1] Builders:

Bryan v Maloney (1995) Aust Torts Reps 81-320

[2] Architects:

Voli v Inglewood Shir (1963) 100 CLR 74

[3] Councils and Statutory Authorities

Civil Liability Act 2002 Part 5

Heyman v Sutherland Shire Council (1985) 157 CLR 424

Shaddock & Assoc v Parramatta City Council [No1] (1981) 150 CLR 424

Sutherland Shire Council v Heyman (1985) 157 CLR 424

Parramatta City Council v Lutz (1988) 12 NSWLR 293

Kyogle Shire Council v Francis (1988) 13 NSWLR 396

Alex Finalyson Pty v Armidale City Council (1994) 123 ALR 155

[4] Nervous Shock

Civil Liability Act 2002 Part 3

The nature of nervous shock:

Swan v Williams (1987) 9 NSWLR 172 at pp 184-5

Andrewartha v Andrewartha (1987) 44 SASR 1

Mount Isa Mines v Pusey (1970) 125 CLR 383 at p394

Jaensch v Coffey (1984) 155 CLR 549

Alcock v Chief Constable [1991] 2 WLR 814

Jones v Wright [1991] 1 All ER 353

Jones v Wright [1991] 3 All ER 88 (on appeal)

[5] Pure Economic Loss

Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529

Christopher v MV Fiji Gas (1993) Aust Torts Reps pp 81-202

New Zealand Forest Products v A-G New Zealand [1986] 1 NZLR 14

Hawkins v Clayton (1988) 164 CLR 539

Bryan v Maloney (1995) 69 ALJR 375

Executive Trustee Australia Ltd & Ors v Peat Marwick Hungerfords (1995) Aust Torts Reports pp 81-318

SCM v Whittal [1971] 1 QB 337

Spartan Steel v Martin [1973] QB 27

[6] Negligent Misstatement

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 4652

Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556, per Barwick CJ (Headnote and Barwick CJs judgment only)

Shaddock v Parramatta City Ccl (1981) 36 ALR 385

San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act (1986) 162 CLR 340

Warwicker Assessments v Zadow (1989) 1 WAR 307

Caparo Industries Plc v Dickman [1990] 2 AC 605

Richard Ellis (WA) Pty Ltd v Mullins Investments Pty Ltd (1995) Aust Torts Reports pp 81-319

[7] Product Liability

[7.1] Sale of Goods Act 1923 (NSW)

[7.2] Trade Practices Act 1974 (Cth):

Part V Div 2A

Part VA

[7.3] Fair Trading Act (NSW):

[7.4] The Common Law:

Donoghue v Stephenson [1932] AC 562 at p599

Grant v Australian Knitting Mills [1936] AC 85

5.Concurrent liability:

(1)Generally

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(a), (b)

* X L Petroleum (NSW) v Caltex Oil (Australia) (1985) 155 CLR 448

Thompson v Australian Capital Television (1996) 141 ALR 1

(2)Contribution between tortfeasors

Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c), (2)

Bitumen and Oil Refineries (Australia) v Commissioner for Government Transport (1955) 92 CLR 200

Brambles Constructions v Helmers (1966) 114 CLR 213

(3)Liability for employees

(a)Definition of an employee

Zuijs v Wirth Bros (1955) 93 CLR 561

Stevens v Brodribb Sawmilling Co (1986) 160 CLR 16

(b)The course of employment

Bugge v Brown (1919) 26 CLR 110

Deatons v Flew (1949) 79 CLR 370

Morris v Martin [1966] 1 QB 716

Law Reform (Vicarious Liability) Act 1983 (NSW)

(4)Contribution and indemnification between employer and employee

Lister v Romford Ice and Cold Storage Co [1957] AC 555

Employees Liability Act 1991 (NSW)

(5)Agency

Colonial Mutual Life Assurance Society v The Producers and Citizens Co-operative Assurance Co of Australia (1931) 46 CLR 41

Morgans v Launchbury [1973] AC 127

Motor Accidents Compensation Act 1999, s 112

6.Nuisance:

(1)Private nuisance

(a)Interests protected

* Victoria Park Racing and Recreation Grounds Co v Taylor (1937) 58 CLR 479

Thompson-Schwab v Costaki [1956] 1 WLR 335

Young v Wheeler (1987) Aust Torts Rep 80-126

(b)Title to sue

Oldham v Lawson (No 1) [1976] VR 654

Hunter v Canary Wharf [1997] 2 WLR 684

(c)Unreasonable and substantial interference

St Helen's Smelting Co v Tipping (1865) 11 ER 1483

Munro v Southern Dairies [1955] VLR 332

(d)Abnormally sensitive plaintiff

Robinson v Kilvert (1889) 41 Ch D 88

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468

(e)Basis of liability

Torette House v Berkman (1940) 62 CLR 637

Sedleigh-Denfield v O'Callaghan [1940] AC 880

Fennell v Robson Excavations [1977] 2 NSWLR 486

* Goldman v Hargrave (1966) 115 CLR 458

(f)Defences

Allen v Gulf Oil Refining [1981] AC 1001

Miller v Jackson [1977] QB 966

(2)Public nuisance

(a)General principles

* Walsh v Ervin [1952] VLR 361

Silservice v Supreme Bread (1949) 50 SR (NSW) 127

York Bros (Trading) v Commissioner of Main Roads [1983] 1 NSWLR 391

(b)Highway authorities

Brodie v Singleton Shire Council (2001) 180 ALR 145

7. DEFENCES

[1] Contributory Negligence:

- Apportionment Legislation

- Civil Liability Act 2002 ss5R-5T

Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 10

Pennington v Norris (1956) 96 CLR 10

Froom v Butcher (1975) 3 All ER 520

Jones v Livox Quarries (1952) 2 QB 608

Caterson v Commissioner for Railways (1973) 128 CLR 99

McLean v Tedman (1984) 155 CLR 306

[2] Violenti Non Fit Injuria:

Civil Liability Act 2002 5F-5I

Scanlon v American Cigarette Co (overseas) Pty Ltd (No3) (1987) VR 289

Imperial Chemical Industries v Shatwell (1965) AC 656

Insurance Commissioner v Joyce (1948) 77 CLR 39

Roggenkamp v Bennett (1950) 80 CLR 292

Kent v Scattini (1961) WAR 74

Rootes v Shelton (1967) 116 CLR 383

[3] Illegality:

Civil Liability Act 2002 ss51-57

Smith v Jenkins (1970) 119 CLR 397

Jackson v Harrison (1978) 138 CLR 438

Gala v Preston (1991) 172 CLR 243

Italiano v Barbaro (1993) 114 ALR 21

Henwood v Municipal Tramsways Trust (Sth Aust) (1938) 60 CLR 438

8.REMEDIES FOR NEGLIGENT CONDUCT: damages

(A)Injury

(a) Civil Liability Act Part 2

(b) Motor Accidents Compensation Act 1999, ch 5

(c) Compensation to Relatives Act 1897 (NSW)

(d) Law Reform (Miscellaneous Provisions) Act 1944 (NSW), pt 2

(e) Motor Accidents Compensation Act 1999, s 22

Malec v J C Hutton (1990) 169 CLR 638

Graham v Baker (1961) 106 CLR 340

* Skelton v Collins (1966) 115 CLR 94

Sharman v Evans (1977) 138 CLR 563

* Griffiths v Kerkemeyer (1977) 139 CLR 161

Sullivan v Gordon (1999) Aust Torts Rep 81-524

Van Gervan v Fenton (1992) 175 CLR 327

Cullen v Trappell (1980) 146 CLR 1

Todorovic v Waller (1981) 150 CLR 402

The National Insurance Co of New Zealand v Espagne (1961) 105 CLR 569

SAMPLE WORKED ANSWERS

Sample One:

Annie forced her way into Bernie's house and was helping herself to the silverware when Bernie discovered her. She drew a knife on Bernie and told him to leave her to it. Bernie grabbed a heavy silver candlestick and struck her over the head causing a serious injury.

1.Does Annie have any action in tort against Bernie?

2.Does Bernie have any action in tort against Annie? If so, what damages (if any) will be recoverable?

1. Annie v Bernie

Bernie has struck Annie with an object.

The elements of the tort of battery are:

(i) an act (not an omission): Holmes v Mather;

(ii) that is direct: Hutchins v Maughan;

(iii) the act is intentional or careless: Williams v Holland;

(iv) and causes physical contact with the plaintiff: Collins v Wilcock;

(v) without the plaintiff's consent: In Re F.

Contributory negligence is no defence to the intentional torts: Horkin v Nth Melb Football Club Social Club. Necessity is a defence to battery: In Re F. The facts that must be proved by the defendant in order to fully rely on the defence are:

(i)that there existed a situation of imminent danger or, at least, what a reasonable person would consider so; and

(ii)the steps taken by the defendant in the light of the facts must have been reasonably necessary: Southwark LBC v Williams.

Self defence and defence of property - an application of the minimum force necessary to protect one's self or property is a defence to the intentional torts: Hall v Fonceca.

It is currently uncertain as to whether the defendant must disprove the elements of a non-highway battery (McHale v Watson) or whether the plaintiff must prove the elements of the tort. In Platt v Nutt, Kirby P. said that the principle, s/he who asserts must prove, ought to apply in non-highway trespasses so that these torts are brought in line with all the other torts. Justices Hope and Clarke, however, agreed that on the facts before them the plaintiff ought to have proved the elements of the tort, particularly that the defendant's conduct caused the plaintiff's injuries, but their Honours declined to express views in relation to burden of proof.

The standard of proof is proof on the balance of probabilities.

Bernie striking Annie was a positive act. That act was direct and was done intentionally by Bernie. He meant to do it. Contact with Annie's person occurred and it can be inferred that Annie did not consent to the act.

On the facts given, Bernie will not be liable to Annie for battery if he can prove self defence or defence of property. It is doubtful though that his life was imperilled (Annie wielded a knife, not a gun) and so the defence of necessity may not apply.

If for some reason the defence of self defence and defence of property fails (for example, that the force used was excessive), it is clear that Bernie was provoked in his actions. Therefore, whereas compensatory damages awarded to Annie will not be reduced for her provocation of Bernie (Fontin v Katapodis), aggravated or exemplary damages claimed by her may be reduced. It is submitted, though, that on these facts they ought not be claimed and should not be awarded (cf. Myers Stores v Soo; Lamb v Cotogno).

2(a). Bernie v Annie

Annie entered and remained upon Bernie's land; she attempted to take his silverware and she waved a knife at him. These facts give rise to the following tort actions:

(a)Trespass to Land

The elements of trespass to land are:

(i) The defendant intentionally or carelessly: William v Holland;

(ii) Enters or remains on or directly causes any physical matter to come in contact with

(iii) Land in the possession of the plaintiff: Rodriguez v Ufton.

Annie intentionally entered Bernie's land. On the facts she is liable for this tort.

(b)Trespass to goods

The elements to trespass to goods are:

(i) a direct: Hutchins v Maughan, and

(ii) intentional or careless: Williams v Holland

(iii) interference with goods in the possession of the plaintiff: Penfolds Wines v Elliot.

Annie 'helping herself' to Bernie's goods comprises a direct and intentional interference with his goods. On the facts she is liable for this tort.

(c)Assault

The elements of an assault are:

(i) an act (not an omission): Holmes v Mather

(ii) that is direct: Hutchins v Maughan

(iii) the act is intentional or careless: Williams v Holland

(iv) and causes the plaintiff to apprehend contact to its person: Barton v Armstrong

The first three elements of the assault are proven by Annie intentionally wielding the knife (not a gun) at Bernie. On the facts given, it is not possible to tell whether upon that event occurring Bernie apprehended contact to his person. If he did, then Annie is liable for this tort.

(d)Conversion

Conversion is an intentional dealing with goods inconsistent with the possession or the immediate right to possession.

Annie intended to 'help herself' to the goods in Bernie's house. Annie's act of 'helping herself' is a sufficient dealing for the purposes of conversion. It is neither here nor there that Annie may not have managed to take the goods. These goods are deemed to be in Bernie's possession and, if not, then he has an immediate right to possession of them. Annie is liable to Bernie in conversion. Bernie, however, has not suffered any loss or damage. Conversion is not trespass and therefore is not actionable per se.

2(b)Damages

It is unclear if Bernie has suffered any harm or loss in his altercation with Annie. If no harm or loss was suffered then as trespass is actionable per se, he will be awarded damages for trespass.

Any damage or loss caused by Annie in the commission of the above torts will be met by an award of compensatory damages. The aim of compensatory damages is to put the plaintiff in the position s/he would have been in but for the tort. If Bernie can show that Annie acted with contumelious disregard of his rights then he may seek and be awarded exemplary damages: Lamb v Cotogno.

Sample Two:

Cathy borrowed a book from the Dunswood Library on a thirty-day loan. Edward who wanted the book urgently took it from Cathy's briefcase the day after she borrowed it. Does the library have any rights against Edward?

A book owned by a library has been removed from the borrower by a third party during a thirty day lending term. Whether or not the library has any rights against the third party will depend on whether or not the borrower breached the lending terms and also on when the library attempts to bring an action.

During a bailment for a term a bailor has no rights against a third party converter of or trespasser to the goods: Wertheim v Cheel, unless the bailee has done some act to revoke the bailment: Penfolds Wines v Elliot. In the latter case the bailment for a term reverts to a bailment at will and the bailor acquires the immediate right to possession it enjoys in any bailment at will.

A third party who takes goods may be liable in:

(A)conversion, which involves an intentional dealing with goods inconsistent with the rights of the person in possession of the goods or the person in a position to assert a right to immediate possession of the goods.

(B)trespass to goods, which involves:

1.a positive act and not an omission: Holmes v Mather

2.that is direct: Hutchins v Maughan

3.and intentional or negligent: Williams v Holland; Williams v Milotin

4.and causes an interference with goods: Kirk v Gregory

5.in the possession of the plaintiff: Penfolds Wines v Elliot.

(C)detinue, which involves a wrongful detention of goods after a demand for their return has been made by the person with an immediate right to possession.

If Cathy as borrower/bailee has dealt negligently with the book then the Library as lender/bailor accrues an immediate right to possession of the book when the bailment is breached. Hence the Library can sue Edward in conversion and trespass to goods: Penfolds Wines v Elliot.

If, on the other hand, Cathy as borrower/bailee has not breached any term of the bailment then the Library as lender/bailor in a bailment for a term has no title to sue Edward: Wertheim v Cheel, until the term of the bailment is over. That is, after the thirty day period has elapsed. Only then when the Library acquires an immediate right to possession of the book, can it sue Edward in conversion and trespass to goods.

In an action by the Library for conversion, the damages are assessed at the date of the conversion: The Mediana. Trespass is actionable per se and damages are assessed at the date of the trial.

On the facts as given there is insufficient basis on which to found a cause of action in detinue.

In conclusion, the library as bailor only has rights against Edward in circumstances where:

1.the bailment has been breached during the term by the bailee, or

2.the bailment for a term is over after thirty days and has reverted to a bailment at will.

Sample Three:

Gay called in to see her next-door neighbour Freda. She found Freda lying unconscious on her kitchen floor. Freda had suffered an electric shock while probing a power point with a screwdriver. Gay, in her haste to get to a telephone to dial for help, tripped over a rug and injured her leg. Does Gay have any action against Freda for her injury?

Gay visited Freda's house and found her lying unconscious on the floor after negligently interfering with a power point. While hastening to the phone, Gay tripped on a floor rug and injured her leg.

To succeed In an action in negligence the plaintiff must prove that:

1. the defendant owed the plaintiff a duty to take care: Chapman v Hearse; Bernie Port Authority v General Jones, and

2. the defendant has breached that duty: Wyong Shire Council v Shirt, by failing to deliver the minimum standard of conduct necessary to avoid a breach of duty: Cook v Cook, and

3. this breach of duty has caused the plaintiff to suffer harm that is reasonably foreseeable duty that is not too remote: March v Stramare; Wagon Mound No.1

In circumstances where a defendant can prove that the plaintiff failed to take adequate measures to preserve their own safety, a defence of contributory negligence will be successful. As a result damages will be apportioned in accordance with where the negligence lies: s10(1) Law Reform (Miscellaneous Provisions) Act 1965 (LRMPA65)

The duty owed by Freda to Gay comes from two sources. Freda is an occupier of premises and so owes a duty to take care when doing dangerous activities to avoid harm to those who enter the premises: Burnie Port Authority. Freda is also an injured negligent person and on the authority of Chapman owes her rescuer a duty to take care.

The content of the duty is that Freda, either as an occupier or as an injured negligent person, must do all that is necessary to avoid visitors to her home or rescuers from sustaining harm that is reasonably foreseeable. The risk of someone sustaining an injury from slipping on a floor rug, though improbable, is nevertheless neither far-fetched nor fanciful. Hence, it must be a real risk and therefore reasonably foreseeable. Whether that risk is so great that the reasonable person would banish floor rugs can only be decided an balancing the factors of the magnitude of the risk, the degree of probability of its occurrence, and the expense, difficulty and inconvenience of taking alleviating action: Wyong Shire Council v Shirt. It is unreasonable to expect people to eliminate floor rugs altogether but it is reasonable to expect them to use inexpensive tapes to secure them to the underlying surface, especially where that could comprise polished boards. On balance, it is submitted that the presence of the floor rug does not of itself breach Freda's duty as an occupier or as an injured person requiring rescue. However, a failure to ensure that the rug is fixed could constitute such a breach of duty.

The facts indicate that Gay slipped on the rug when hastening to the telephone. It could be argued that but for Gay' s haste she would not have tripped on the rug at all. This raises the question of what caused Gay to trip on the rug - the rug itself and the way it was secured to the floor, or Gay' s failure to take care of her own safety when hastening to the phone. A common sense approach is adopted: March v Stramare.

That Gay's leg injury is foreseeable and not too remote a consequence of slipping on the rug is not disputed: Wagon Mound No.1

So, does Gay have an action against Freda? if it is found that a poorly fixed rug constitutes a breach of Freda's duty to Gay, then Gay can sue Freda in Negligence. However, Gay must be advised that in that action Freda can raise the defence of contributory negligence, which, if proved, could lead to the reduction and apportionment of damages awarded to Gay in accordance with the LRMPA65. Given that Gay was affecting a rescue and that Freda's negligent conduct put Gay in a position where she conducted herself reasonably although in a manner that caused her harm, then it is submitted that a defence of contributory negligence would probably fail: Chapman v Hearse; Caterson v Commissioner for Railways.

Sample Four:

Wife and husband, Freda and George, ran a successful art gallery in which Freda's pottery and George's sculptures were sold along with works by other artists. The gallery business was operated through a private company, Hands On Pty Ltd, jointly owned by Freda and George, who divided the gallery hours between them, for which they were each paid a salary by the company. Freda was badly burnt in a fire caused by a defect in her potters' kiln which had been negligently manufactured by Indiana Products Ltd. After one month under intensive care in hospital she died from the burns. During that month her salary was paid by Hands On Pty Ltd as sick pay. As a result of Freda's death, the business has suffered, partly because her pottery is no longer available, partly because her replacement in the gallery is not as successful in effecting sales. George continued to live in the apartment which he rented with Freda but now he has to meet all his living costs out of his salary instead of their two salaries combined.

What actions would George, who is the executor of Freda's estate, and/or Hands On Pty Ltd have against Indiana Products Ltd and what damages would be recoverable in those actions?

A. George as Executor v Indiana Products Pty Limited (IP)

George as executor of Freda's estate acquires the right to claim damages for her death under the Law Reform (Misc Prov) Act 1944 Part 2. The damages payable are outlined in s.2 of that Act and are as follows:

(i) pecuniary losses such as hospital and medical expenses incurred in the time period between the accident and the death

(ii) cost of a funeral: s.2(2)(c).

As Freda received sick pay in the relevant period then George cannot claim loss of income: Graham v Baker.

Damages for pain and suffering, bodily and mental harm and loss of expectation of life are not payable: s.2(2)(d).

B. George as husband v IP

As a husband, George is entitled to bring an action under the Compensation to Relatives Act 1897 (CRA) s.4(1), providing the conditions stipulated in s.3 are met. Those conditions are:

(i)that the death was caused by the "act, neglect or default" of the defendant: Woolworths v Crotty; and

(ii)that the deceased, if she had lived, would have had an action against the defendant for her injuries: Harding v Lithgow Council.

As the kiln was negligently manufactured by IP and Freda suffered injuries as a result then it is submitted that both these conditions are met.

Emotional losses were recoverable for the children upon the death of a parent in Swan v Williams Demolitions. If these damages were available to a spouse then George may recover them.

George will be compensated for his having to pay Freda's share of the rent.

The courts take into consideration the value, if any, to George of the opportunity to remarry: Jones v Schiffman.

As George and Freda were each paid a salary by Hands On then it is unlikely that George had any valid expectation of financial support from Freda. Such an expectation is essential to recovery: Davies v Taylor.

C. Hands On (HO) v IP

Action for loss of services. HO can seek recovery of the sick pay paid to Freda when she was in hospital: Graham v Baker.

No compensation will be paid for the profits lost when Freda is replaced by a person less successful in effecting sales than Freda.

No damages for the death are recoverable: Swan.

Sample Five:

Regulations under the Employees' Safety Act require sawmillers to fence circular saws in order to contain timber ends propelled by the blades. In Ron's sawmill one of the circular saws was not fenced as required and a timber end propelled from the saw struck Sam, Ron's employee, on the head, causing serious injury. Tina, Sam's fiance, entered the work area just before the accident although she knew that the area was restricted to employees. Seeing Sam collapse from the blow, she suffered nervous shock. Ron claims that he had strictly instructed all his employees, including Sam, to wear a helmet when working near the unfenced saw. A helmet would have avoided serious injury.

Discuss Ron's liability in tort to both

(i)Sam and

(ii)Tina,

including any defences which may be raised in either case.

(i) Sam v Ron

A. Breach of Statutory Dutv.

The elements of this tort are:

1The statute imposes a duty and not merely a discretion: Galashields. The Act in question "requires", which is interpreted as an obligation and not a power.

2.The statute must fix a duty upon the defendant. The Act here imposes a duty on sawmillers and Ron is a sawmiller.

3.The statute must allow a personal action in tort: O'Connor v Bray; Abela v Giew; Tassone v MWSB. In circumstances where the words of the statute do not expressly provide a private right to sue in tort, the High Court in O'Connor said that where the Act in question is one dealing with safety and where the facts also give rise to a duty to take care owed by the defendant to the plaintiff in the tort of Negligence, then the court will find that a private right to sue exists unless the words of the statute clearly show a contrary legislative intention.

4.The harm suffered must be within the risk guarded against: Gorris v Scott. Sam sustained an injury from a propelled timber end - thus he suffered harm contemplated by the statute.

5.The plaintiff is one of the persons protected by the statute: Knapp v The Railway Executive. Sam is an employee and so is protected by a statute entitled Employees' Safety Act.

6.The defendant failed to do what was required by the statute. Ron failed to fence a circular saw as required.

7.The breach of duty must have caused the plaintiff's harm: Bonnington Castings v Wardlaw; Sherman v Nymboida Collieries. A failure to fence the saw has allowed the timber end to hit Sam's head.

Subject to the statute giving Sam a private right to sue, it is submitted that he can sue Ron in this tort. Even if element 3 above is not satisfied then Sam can rely on his proof of the remaining elements of the breach of statutory duty as evidence of a breach of duty of care in Negligence: Tassone.

Contributory Negligence as a defence to personal injury as a result of breach of statutory duty is unavailable by virtue of s.2 of the Statutory Duties (Contributory Negligence) Act 1945.

B. Negligence

The elements of this tort are:

1.the defendant owes the plaintiff a duty to take care: Kondis v STA,

2.the defendant has breached the duty: Wyong SC v Shirt, by failing to deliver the minimum standard of care expected: Cook v Cook, thereby causing: March v Stramare,

3.the plaintiff to suffer harm that is reasonably foreseeable and not too remote: Wagon Mound No. 1.

Ron as employer owes Sam as employee a duty to keep the workplace safe. Ron has failed to fence a circular saw. This involves a real (not far-fetched or fanciful) risk and therefore a reasonably foreseeable risk that a person may be injured by a propelled wood end. When examining the magnitude of the risk (a head injury), the probability of the risk occurring (significant) and the cost of taking alleviating action (low) then it is apparent that the reasonable person would have fenced the saw. As Ron's conduct has fallen short of what the reasonable person would have done, then Ron has breached his duty of care to Sam by failing to fence the circular saw. This failure has caused Sam to suffer harm that is reasonably foreseeable and not too remote.

Sam has contributed to his own harm (Froom v Butcher) by failing to wear a helmet. He has suffered injury within the risk to which he exposed himself: Jones v Livox Quarries. Therefore a defence of contributory negligence, if raised by Ron, would be successful. Damages would then be apportioned according to where the fault lay: s 10(1) Law Reform (Misc Prov) Act (LRMPA) 1965.

In order for a defence of voluntary assumption of risk to be successful, Ron must prove that Sam consented to the saw being unfenced and to being hit in the head with the wood end: Joseph Smith v Charles Baker. Further, Ron must show that Sam had full appreciation and knowledge of the risk: ICI v Shatwell. It is submitted that on the facts this defence would not be made out. If, however, it were made out, then it would be a complete defence.

(ii) Tina v Ron

Nervous Shock.

(i)Under the s.3 of the LRMPA44 Tina may have a cause of action if she lives with Sam on a bona fide domestic basis: s.4(5).

(ii)At common law: Jaensch v Coffey. Tina must prove the elements of the tort of Negligence outlined above. Ron owes all entrants a duty of care, even trespassers: Hackshaw v Shaw. The standard of care owed to a trespasser could be quite low so that Ron may not have breached his duty to Tina. Tina's suffering nervous shock is not too remote a consequence of a (if any) breach of duty. If Ron is liable in negligence, then he can raise the defences of contributory negligence and voluntary assumption of risk, outlined above.

(iii)As Tina is not an employee she derives no protection from the Employees' Safety Act and could not sue for breach of statutory duty.

Sample 6:

Harold took his valuable Swiss watch to Jane, a jeweller, for cleaning. Jane, who was in pressing financial circumstances, took the watch, intending to use it as security for a loan from a pawnbroker. On her way to the pawnbroker, she called in to Karla's sandwich shop to buy lunch. As she was leaving Jane inadvertently left the watch on the shop counter and took two packets of chewing gum from a counter stand without paying. Karla saw Jane take the gum, but, seeing the watch on the counter called out: "you can have this back when you pay for the gum". Jane ran from the shop and into Lionel who was walking along the footpath outside the entrance to the shop. Both Jane and Lionel were injured.

Harold has traced the watch to Karla but she refuses to hand it over until she has been paid for the gum.

Discuss the causes of action in tort arising out of the above, without regard to any questions of contribution.

A. HAROLD V JANE

Harold as owner/bailor of his watch has entered into a bailment on the condition that it be cleaned by Jane as bailee. He parts with possession of his watch. At this point, Jane has already decided to use the watch as security for a loan from a pawnbroker. It could be argued that in these circumstances the bailment never crystallised and that Harold always retained a right to immediate possession of his watch. If, on the other hand the bailment is created, then it is surely breached when Jane treats the bailor's goods in a manner repugnant to the terms of the bailment, that is, by setting off to the pawnbroker's to fulfil her mal-intent. Such a bailment then reverts to a bailment at will and the bailor acquires an immediate right to possession: Penfold Wines v Elliott (1946) 74 CLR 204 ("Penfolds Wines").

(a)Trespass to goods

The elements of a trespass to goods are:

1. a direct: Hutchins v Maughan [1947] VLR 131; and

2. intentional or careless: Williams v Milotin (1957) 97 CLR 465;

3. interference with goods in the possession of the plaintiff: Penfold Wines.

Generally, only a person in possession of goods at the time of a trespass can sue in this tort. One exception is that a bailor with an immediate right to possession may sue a third party who wrongfully disposesses the bailee of the bailor's goods: Penfolds Wines. Jane is not such a third party and as such, Harold has no title to sue her in trespass to goods.

(b)Conversion

A conversion is an intentional dealing with goods inconsistent with the possession or the immediate right to possession of the plaintiff: Penfolds Wines.

Harold has title to sue in conversion. Jane's taking of the watch to the pawnbroker is evidence of an intention to deal with Harold's goods in a manner inconsistent with his rights to immediate possession of the goods. On the facts, Jane would be liable for this tort.

B.HAROLD V KARLA

(a)Trespass to goods

The elements of this tort are outlined above.

Karla's wrongful dispossession of Jane of the watch will render her liable to Harold in this tort. Had Karla's dispossession not been wrongful then she would not be liable: Penfolds Wines.

(b)Detinue

Detinue comprises a wrongful detention of goods after a demand for their return has been made by a person with a right to immediate possession of the goods.

Implicit in Karla's refusal to return the watch is Harold's request to do so. Therefore, on the facts, Karla will be liable for this tort.

(c)Conversion

That an unlawful detention of goods can comprise a conversion is stated in Howard E Perry v British Railways Board [1980] WLR 1375. On this authority, Karla will be liable to Harold for conversion as well.

C.KARLA V JANE

Jane has taken chewing gum from Karla without paying for it.

(a)Trespass to goods

The elements of this tort are outlined above. Jane taking the gum was a direct and intentional interference with goods in Karla's possession.

(b)Conversion

The elements of this tort are outlined above. Jane has intentionally dealt with the chewing gum in a manner repugnant to Karla's rights in the gum.

(c)Detinue

The elements of this tort are outlined above. It is submitted that this tort does not lie for goods of a common and essentially replaceable nature, and where a remedy of damages would be sufficient.

(d)Trespass to Land

The elements of a trespass to land are:

1. the defendant intentionally or carelessly: Williams V Milotin (1957) 97 CLR 465:

2. enters or remains on or directly causes physical matter to come in contact with

3. land in the possession of the plaintiff: Rodriguez v Ufton (1894) 20 VLR 539.

An implied licence exists for people to enter private land. The existence of such a licence is a question of fact: Hallidav v Neville (1984) 155 CLR 1. The occupier of land can, as a matter of fact, revoke the Iicence: Plenty v Dillon (1991) 171 CLR 635. Applying these cases to the facts at hand, it could be argued by Karla that she grants a licence to all customers who enter her shop with a genuine intention to buy goods there. When that intention changes to one of taking goods without paying, then Karla could show that the licence previously granted by her to the entrant is revoked, and the entrant becomes a trespasser. On this basis Jane would be liable for trespass to land.

D.LIONEL V JANE

(a)Assault

The elements of assault are:

1. An act, not an omission: Holmes v Mather (1875) LR 10 Ex 261

2. That directly: Hutchins v Maughan [1947] VLR 131

3. And intentionally or carelessly: Williams v Milotin (1957) 97 CLR 465

4. Causes the plaintiff to immediately apprehend unwanted physical contact to their person: Barton v Armstrong [1969] 2 NSWLR 451

Jane running from the shop was a direct and intentional act to further her escape with the stolen chewing gum. She meant to do it. If Lionel can prove that he apprehended unwanted physical contact then Jane will be liable in this tort.

(b)Battery

The elements of battery are:

1. An act, not an omission: Holmes v Mather (1875) LR 10 Ex 261;

2. that directly: Hutchins v Maughan [1947] VLR 131

3. and intentionally or carelessly: Willians v Milotin (1957) 97 CLR 465;

4. causes contact with the plaintiff: Collins v Wilcock [1984] 1 WLR 1172

5. without the plaintiff's consent: In re F [1990] 2 AC 1

On the given facts Jane will be liable in battery.

It is unclear whether this is a highway or non-highway battery. If it is the former, then the plaintiff must prove all the elements of the cause of action: Venning v Chin (1974) 10 SASR 299. If it is the latter, then the plaintiff must only prove unwanted contact by a direct act and it is then the burden of the defendant to disprove their intention or carelessness: Platt v Nutt (1988) 12 NSWLR 231.

E.JANE V KARLA

Jane inadvertently leaves the watch on Karla's shop counter. Karla then takes the watch and uses it as leverage against Jane to extract from her payment for the gum.

Under the common law a plaintiff (Jane) often succeeded in conversion even though the defendant (Karla) could show that a third party (Harold) had a better title to the goods than the plaintiff (Jane). Hence, under this rule, Jane retains a better possessory title to the watch than Karla, notwithstanding that Jane's possession, by her own dealings with the watch, became wrongful. For a fuller discussion of this area see Balkin & Davis, Law of Torts, Butterworths 2nd ed. 1996, page 72ff.

Sample Seven:

Windyshire Council is the owner of the Windyshire Olympic Pool complex. It has leased the pool complex to Poolworld Ltd which takes over the responsibility of maintaining and operating the pool. Windyshire Council is aware that the filter in the pool will soon need replacement. One aspect of the maintenance is the chlorination of the pool which requires the weekly application of large amounts of chlorine.

One morning, Scott, a Poolworld employee, carries out the weekly application of chlorine to the water. Due to a sudden fault in the filter system, the chlorine levels remain unsafe for swimming. At lunchtime a mate, Geoff, arrives for a swim and, in contravention of Poolworld's explicit standing instructions, Scott allows him to dive in before Scott has tested the chlorine levels of the water.

Geoff's eyesight is seriously affected.

Advise

(a)Geoff on the appropriate defendants for any claim and the basis of their liability; and

(b)the defendants on possible contribution proceedings.

(a)APPROPRIATE DEFENDANTS

(i)Geoff v Scott

Negligence

The elements of Negligence are as follows:

(i)the defendant owes the plaintiff a duty to take care to avoid causing personal injury: Donoghue v Stevenson [19321 AC 562; and

(ii)the defendant breaches that duty: Wyong Shire Council v Shirt (1980) 146 CLR 40 by failing to deliver to the plaintiff the minimum standard of care expected: Cook v Cook (1986) 162 CLR 376, thereby causing: March v Stramare (1991) 171 CLR 506

(iii)the plaintiff to suffer harm that is reasonably foreseeable and not too remote: Wagon Mound No 1 [19611 AC 388.

Scott owes Geoff a duty to avoid reasonably foreseeable harm. There is a real (not far-fetched or fanciful) and therefore a reasonably foreseeable risk involved in Scott allowing a person to swim in the pool without first ascertaining that the pool chlorine levels are safe. The magnitude of the risk is large (damaged eyesight), its probability high, and Scott cannot raise any competing factors in answer to his carelessness. In the circumstances, a reasonable person faced with this risk would check the chlorine levels and alert those persons either in charge of entry to the pool or those persons about to swim in the pool that it is unsafe to do so. Therefore, Scott's conduct falls short of that expected from a reasonable person delivering the minimum standard of care and so comprises a breach of the duty of care owed by him to Geoff. A failure to check the chlorine levels and report adverse findings has resulted in Geoff diving into the pool. There are no facts provided that support the contention that despite the warning Geoff would have dived in anyway. Therefore the cause, arrived at by an application of common sense, of Geoff's injury is Scott's careless conduct. The injury that has resulted is of a kind that could be reasonably foreseen.

On the facts given, it is submitted that Scott will be liable to Geoff in Negligence and therefore would be an appropriate defendant.

(ii)Geoff v Poolworld Ltd ("PW")

(a)Direct Liability

Negligence

The elements of Negligence are stated above.

The legal basis of a duty owed by PW to Geoff is that of occupier to invitee: Australian Safeways Stores v Zaluzna (1987) 162 CLR 479. Additionally, PW in taking advantage of its occupation of premises to do something dangerous owes Geoff a duty to ensure that care is taken of his safety: Burnie Port Authority v General Jones (994) 179 CLR 520. Whether or not the operation of a pool is a dangerous activity is a matter for the court to decide.

PW specifically instructed its employee, Scott, to prevent entrants to the pool from swimming prior to Scott testing the chlorine levels of the water. If this is regarded as equal or more than what the reasonable pool operator would do then PW has not breached its duty to Geoff. If, however the reasonable person would have had a checking system in place so that the pool would not be opened to the public before the chlorine levels were known, or if there ought to have been more supervision of Scott's work, then PW will be in breach of its duty to Geoff.

If the operation of a pool can be regarded as a dangerous activity then evidence of PW's breach of its duty to ensure that care is taken is found in the fact that the pool has been made available for the use of swimmers when its chlorine levels are unsafe.

The questions of causation and reasonably foreseeable harm were dealt with above.

Geoff is advised that PW could be an appropriate defendant.

(b)Vicarious liability

An employer is liable for the torts of their employees committed in the course of employment.

We are told that Scott is an employee. The question then becomes: is his contravention of PW's specific standing instructions in allowing Geoff to dive in prior to Scott's testing the water within the course of employment? The answer is a question of fact: Bugge v Brown (1919) 26 CLR 110. If Scott's conduct is in the course of employment then PW will be liable to indemnify him.

(iii)Geoff v Windyshire Council ("WSC")

Negligence

The elements of negligence are stated above.

The legal basis of a duty owed by WSC to Geoff is that of landlord to one who makes the tenancy viable: Northern Sandblasting v Harris (1997) 146 ALR 572. The determination of the rights and responsibilities of WSC and PW in relation to the replacement of a faulty filter are probably dictated in the lease binding them. As such it is impossible to state that WSC's mere knowledge that the filter would soon need replacing and its failure to replace it sooner rather than later are sufficient to render it liable for a breach of duty to Geoff. Further, we do not know if the sudden fault in the filter was caused by its needing replacement. We have no evidence as to whether or not new filters can manifest this sudden fault that leads to high chlorine levels in the pool water.

WSC can argue that questions about the filter are unimportant because the faulty filter was not the cause of Geoff's injury. The real cause was Scott's failure to check the levels and exclude Geoff from using the pool. High chlorine levels, however caused, would probably not result in injury to those prevented from entering the pool.

Geoff is advised that WSC's carelessness (if any) in relation to the pool filter is probably not the cause of Geoff's injuries and therefore it will probably not be liable to him in Negligence. WSC will not, on this basis, be an appropriate defendant.

(B)CONTRIBUTION PROCEEDINGS

It is important to note that each of the damages awarded to Geoff will be for a total sum against each party. It is then up to the defendants to recover from each other under section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 ("LRMPA 46").

Joint tortfeasors act in concert to cause the same damage. Several tortfeasors act independently to cause the same damage. Scott and PW, if liable, are joint tortfeasors whereas PW and WSC, if liable, are several tortfeasors.

(i)Scott v PW

Scott and PW are joint tortfeasors.

Providing the conditions of Section 5 of the Employees Liability Act 1991 are met, then under Section 3 of that Act, PW cannot seek to recover from Scott the damages it was ordered to pay out on his behalf.

If, on the other hand, Scott's torts cannot be regarded as being in the course of employment or else they were the result of wilful misconduct, then he and PW are treated as joint tortfeasors under the LRMPA and damages will be apportioned under section 5(2) of that Act. The existence of wilful misconduct is unlikely, though, given that Geoff is Scott's mate.

(ii)PW v WSC

Providing both parties are liable, then contribution proceedings between them will result in apportionment of damages pursuant to s.5(2) of the LRMPA46.

A party that is not liable will not be required to contribute damages: Bitumen and Oil Refineries (Australia) v Commissioner for Government Transport (1955) 92 CLR 200.

CASE NOTE EXAMPLE

PENFOLDS WINES PTY LTD V ELLIOTT (1946) 74 CLR 204

FACTS

Penfolds Wines Pty Limited ("Penfolds") was a wine producer and seller. Elliott was a licensed hotelier carrying on business at a hotel in NSW. Through embossing on their bottles and notations on their invoices Penfolds informed all those in possession of its bottles that they were to be used only for the purposes of retailing and consumption of Penfold's wines and further, that they always remained the property of Penfolds.

Penfolds asserted that Elliott, without its consent, had been receiving, collecting and handling their embossed bottles, using them in connection with his business and delivering to his customers liquids not manufactured or marketed by Penfolds. Penfolds sought an injunction to have the practice stopped.

TRIAL JUDGE'S DECISION

At the trial, Nicholas CJ found that

(a)Elliott filled two of Penfolds' bottles with wine other than Penfolds' wine and delivered them to Moon for a sum of 8 shillings. The bottles were not sold to Moon.

(b)Elliott had for years and once subsequently filled Penfolds' bottles with non Penfolds' wine. Two of these filled bottles were delivered to Elliott's brother.

(c)Elliott did not sell Penfolds' bottles.

Penfolds asserted that:

(1) Elliott's activities described in (a) above involved an assumption of dominion over the bottles which amounted to conversion, and

(2) Elliott's activities described in (b) above amounted to a use of the bottles inconsistent with the terms of delivery of the bottles.

The trial judge found that Elliott's conduct amounted to a trespass to goods. His honour refused to order an injunction because there was inadequate evidence that Elliott intended to sell the bottles or to keep them if asked by Penfolds to return them.

ISSUE/S ON APPEAL

Penfolds appealed to the High Court seeking an injunction.

THE HIGH COURT

The High Court comprised Latham CJ, Starke, Dixon, McTiernan and Williams JJ.

Latham CJ

Penfolds' branded bottles were bailed to persons who received them. By the terms of the bailment, the bailee was not entitled to use the bottles for another purpose than once only for retailing, consuming or using the plaintiff's wine contained in the bottles, and such a person has no right to authorise any other person to use them for any other purpose (at 213). A bailment is determined by any act of the bailee which is wholly repugnant to the holding as bailee, and at that point the bailor has an immediate right to possession. The delivery of bottles by Elliott's brother to Elliott to have them filled with wine other than Penfolds' was in breach of the express terms of the bailment. This ended the bailment and Penfolds as bailor acquired an immediate right to possession of the bottles (at 214).

A mere taking or asportation of a chattel may be a trespass without the infliction of any material damage. The handling of a chattel without authority is a trespass. Unauthorised use of goods is a trespass, eg using a bottle. The normal use of a bottle is as a container, and the use of it for this purpose is a trespass if it is not authorised by a person in possession or entitled to immediate possession.

As Elliott obtained the bottles from his brother with the latter's authority then there can be no trespass against his brother. [His honour then examines authorities that contend that a plaintiff suing in trespass must have been in possession of the goods at the time of the trespass, except where the trespass was against the plaintiffs servant, agent or bailee under a revocable bailment.]

The possession of a servant is the possession of their master; the possession of an agent is the possession of their principal. In neither case is it "another's possession". Therefore, each is regarded as having actual possession (at 216). In relation to a revocable bailment, the bailor has neither possession nor an immediate right to possession so long as the bailment remains unrevoked. If the possession of a bailee holding under such a bailment is violated it is the bailee's possession and not that of the bailor which is violated. Hence, if the bailor may sue for trespass, then the bailor is suing for a violation to another's possession.

In this case the bailment expired when brought by Elliott's brother to Elliot to be filled with wine other than Penfolds'. Penfolds then became immediately entitled to possession of the bottles. Therefore, Penfolds could sue in trespass although logical argument tended against this view.

The use of the bottles by Elliott without any regard for Penfolds' rights for the benefit of Elliott and his brother was a conversion (at 218). Also, Elliott dealt with the bottles as being a person entitled to dispose of them to Moon, such a disposition being a conversion.

His honour ordered an injunction restraining Elliott from using Penfolds' bottles for any purpose other than that of containing liquids manufactured or placed there by Penfolds.

Starke J

His honour found that trespass did not lie but found conversion of Penfold's bottles. As Elliott's filling of the bottles was not a systematic practice then Penfolds ought to be left to their common law remedies of damages and an injunction ought not be awarded.

Dixon J

The facts reveal no trespass because there is, on Elliott's part, no infringement of another's possession (at 224).

An immediate right to possession is insufficient to support an action in trespass. If it were sufficient then conversion would have been an unnecessary remedy. The correct view is that the right to possession as entitlement for suing in trespass is merely a right in one person to sue for a trespass done to another's possession: and this right exists whenever the person whose actual possession was violated held as servant, agent or bailee under a revocable bailment for or on behalf of the person having the right to possession (at 227).

The determination of the bailment may enable the bailor to sue in conversion or detinue but not in trespass. Such determination revests the bailor's right to possession and therefore the bailor's immediate right to sue in conversion or detinue (at 227).

There is no conversion because on Elliott's part, there is no act and no intent inconsistent with Penfolds' rights to possession (at 224). The essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who owns the goods. Use of a chattel is not conversion. An intent to do that which would deprive the "true owner" of their immediate right to possession or impair it is the essential basis of conversion (at 229). The re-delivery by Elliott of filled bottles to those who left them with him to be filled involved a transfer of possession but not for the purpose of conferring any right over the property in the bottles.

His honour found that there was no basis for an injunction.

McTiernan J

His honour concludes that the only wrong committed by Elliott is a conversion of two of Penfolds' bottles and that the case is not a proper one for an injunction (at 232).

Williams J

There was no violation by Elliott of his brother's possession of the bottles. There was therefore no asportation of the bottles from the person in actual possession and so Penfolds have no case against Elliott in trespass (at 242).

For Elliott to fill the bottles as he did knowing that they were the property of Penfolds amounted to a conversion (at 243).

His honour granted an injunction.

OUTCOME OF THE APPEAL

Trespass was found only by Latham CJ.

Conversion was found by all except Dixon J.

The appeal was dismissed by Starke, Dixon and McTieman JJ. The appeal was allowed by Latham CJ and Williams J.

IMPACT ON CURRENT LAW

The majority decision in Penfolds affirmed that only a person in possession can sue for trespass except where that person is the bailor, master or principal of a person who, having suffered a violation of actual possession, was a bailee under a revocable bailment or servant or agent of the former. Further, an unjustified use of goods will amount to a conversion provided there is an intention to e