LAWS 1113 – LAW OF

TORTS AReference Bible

Compiled by William Macintosh, Tom Ashby and San-Joe Tan

2008

Main sources: The Law of Torts in Australia (Trindade et al);

Torts A Learning Guide 2008 (Hinchy)

Butterworths Concise Legal Dictionary Third Edition (Butt et al)

Page | 1

CONTENTS

1. Introduction 7

1.1 What is a tort?.............................................................................................................................7

1.2 Difficulty in defining a tort...........................................................................................................7

1.2.1 Tort and Criminal Law..........................................................................................................7

1.2.2 Tort and Contract Law.........................................................................................................8

1.2.3 Tort and Restitution Law......................................................................................................8

1.2.4 Tort, Trust and Property Law...............................................................................................9

1.3 Standards of Liability...................................................................................................................9

1.4 Faults and Alternatives................................................................................................................9

1.5 Sources........................................................................................................................................9

1.6 Tort Theory................................................................................................................................10

1.6.1 Economic Analysis..............................................................................................................10

1.6.2 Corrective Justice Theory...................................................................................................10

1.6.3 Critical Theory....................................................................................................................10

1.7 Distinction between Trespass and Action on the Case....................................................................10

2. Intentional Torts against the Person 11

2.1 Introduction...............................................................................................................................11

2.2 Battery.......................................................................................................................................11

2.2.1 Direct Act – Reynolds v Clarke (1726) 93 ER 747................................................................11

2.2.2 Positive Act – Innes v Wylie & Ors (1844) 174 ER 800........................................................11

2.2.3 Hostile Touching – In re F (Mental Patient: Sterilisation) [1990] 2 AC 1.............................12

2.2.4 Intentional Act – Gray v Barr [1971] 2 QB 554...................................................................12

2.2.5 Consent..............................................................................................................................12

2.3 Assault.......................................................................................................................................12

2.3.1 Positive Act and Direct Physical Threat – Stephens v Myers (1830) 172 ER 735................12

2.3.2 Must be reasonable apprehension of imminent/harmful contact.....................................13

2.3.3 Conditional Threats – Tuberville v Savage (1669) 89 ER 684..............................................14

Page | 2

2.3.4 Fault – Must be the intention to cause the apprehension – Hall v Fonceca [1983] WAR 30914

2.3.5 Consent..............................................................................................................................14

2.4 False Imprisonment...................................................................................................................15

2.4.1 Introduction – Myer Stores v Soo [1991] 2 VR 597.............................................................15

2.4.2 Must be a positive act of the defendant............................................................................16

2.4.3 Restraint of liberty must be total.......................................................................................16

2.5 Defences....................................................................................................................................16

2.5.1 Necessity............................................................................................................................16

2.5.2 Incapacity: Insanity and Infancy.........................................................................................17

2.5.3 Mistake - Hall v Fonceca [1983] WAR 309.........................................................................17

2.5.4 Ex Turpi Causa – Smith v Jenkins (1970) 119 CLR 397........................................................18

2.5.5 Self-Defence – Fontin v Katapodis (1962) 108 CLR 177; Albert v Lavin [1982] AC 546.......18

2.5.6 Defence of another............................................................................................................19

2.5.7 Defence of property...........................................................................................................19

2.5.8 Provocation........................................................................................................................19

2.5.9 Inevitable accident – McHale v Watson (1964) 111 CLR 384.............................................19

2.5.10 Consent – Marion’s Case (1992) 175 CLR 218....................................................................19

3. Trespass to Land 21

3.1 What is trespass to land?...........................................................................................................21

3.1.1 Interference must be with land in the lawful possession of the plaintiff – Delaney v T. P. Smith Ltd [1946] KB 393....................................................................................................................21

3.1.2 Must be a positive act and direct interference – Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182; Public Transport Commission of NSW v Perry (1977) 14 ALR 273......22

3.1.3 Interference with or entry upon must relate to land - Kelsen v Imperial Tobacco Co Ltd [1957] 2 KB 334.................................................................................................................................22

3.1.4 Transient Intrusions – Graham v K. D. Morris & Sons Pty Ltd [1974] Qd R 1; Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 479...............................................................23

3.1.5 Section 180 of the Property Law Act 1974 (Qld) – Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42 23

3.1.6 Fault – Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107.....25

3.1.7 Unjustifiable Entry or Interference – Halliday v Nevill and Another (1984) 155 CLR 1.......25

3.2 Remedies...................................................................................................................................26

Page | 3

3.2.1 Damages............................................................................................................................26

3.2.2 Injunctions.........................................................................................................................26

3.2.3 Abatement by Self-Help.....................................................................................................26

3.3 Defences....................................................................................................................................26

3.3.1 Necessity............................................................................................................................26

3.3.2 Re-Entry on Land................................................................................................................27

3.3.3 Inevitable Accident............................................................................................................27

3.3.4 Consent..............................................................................................................................27

3.3.5 Lawful Authority................................................................................................................27

4. Nuisance 29

4.1 Private Nuisance........................................................................................................................29

4.1.1 Background........................................................................................................................29

4.1.2 Noise..................................................................................................................................29

4.1.3 Material Damage vs Personal Discomfort – St Helen’s Smelting v Tipping (1865) 11 HLC 642 29

4.1.4 Unreasonableness..............................................................................................................29

4.1.5 Interests protected............................................................................................................32

4.1.6 Who can sue? – Hunter v Canary Wharf [1997] AC 665.....................................................32

4.1.7 Who can be sued? – Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574..................................32

4.2 Defences....................................................................................................................................33

4.2.1 Coming to the nuisance – Campbelltown Golf Club v Winton [1998] NSWSC 257.............33

4.2.2 Statutory Authorisation –Lester-Traves v City of Frankston [1979] VR 2...........................33

4.3 Remedies...................................................................................................................................33

4.3.1 Abatement.........................................................................................................................33

4.3.2 Injunctions.........................................................................................................................33

4.3.3 Damages............................................................................................................................34

5. Intentional Torts against Chattels 35

5.1 Trespass to Goods......................................................................................................................35

5.1.1 Overview............................................................................................................................35

5.1.2 The nature of the plaintiff’s possession.............................................................................35

5.1.3 The nature of the defendant’s actions...............................................................................35

5.1.4 Is it actionable per se?.......................................................................................................36

Page | 4

5.2 Conversion.................................................................................................................................36

5.2.1 Introduction – Kuwait Airways Corporation v Iraqi Airways Co and Others [2002] UKHL 1936

5.2.2 What are goods?................................................................................................................36

5.2.3 The nature of the plaintiff’s interest in goods....................................................................36

5.2.4 The nature of the defendant’s acts....................................................................................37

5.3 Detinue......................................................................................................................................38

5.4 Defences....................................................................................................................................38

5.4.1 Necessity............................................................................................................................38

5.4.2 Mistake..............................................................................................................................39

5.4.3 Ex Turpi Causa....................................................................................................................39

5.4.4 Recaption of Chattels.........................................................................................................39

5.4.5 Distress..............................................................................................................................39

5.4.6 Inevitable Accident............................................................................................................39

5.4.7 Consent..............................................................................................................................39

5.4.8 Lawful Authority................................................................................................................39

5.5 Penfolds Case.............................................................................................................................39

6. Introduction to the Law of Negligence and Duty of Care42

6.1 Introduction to Negligence........................................................................................................42

6.2 Duty of Care – Donoghue v Stevenson [1932] AC 562................................................................42

6.3 Reasonable Foreseeability.........................................................................................................43

6.4 Proximity – Sullivan v Moody (2001) 107 CLR 562.....................................................................45

6.5 Introduction to the Civil Liability Act 2003 (Qld)........................................................................45

6.6 Examples of Duties of Care........................................................................................................45

6.6.1 Duty of care owed by employer to employee - Czatyrko v Edith Cowan University (2005) 214 ALR 349.......................................................................................................................................45

6.6.2 Duty of care owed by an occupier to an entrant - Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234............................................................................................................................45

6.6.3 Duty of care owed to other road users - Manley v Alexander (2005) 223 ALR 228............45

7. Breach of Duty of Care 46

8. Causation and Remoteness 50

9. Proportionate Liability and Contribution among Tortfeasors 55

Page | 5

10. Defences to Negligence 59

11. Compensation for Personal Injury 68

12. Limitation of Actions 74

Page | 6

1. Introduction

1.1 What is a tort?

Tort is a French word meaning ‘wrong’ or ‘injury’. The law of torts, normally described as the ‘law of civil wrongs,’ encompasses many individual torts

with different characteristics and elements eg trespass, negligence, nuisance. You cannot define any particular tort, you can only describe it, and as these torts deal with a range of

situations, their differences are more important than their similarities:o One act can constitute more than one tort (concurrent liability); ando Because of differing elements, there could be an argument as to what tort was

committed. Torts are civil wrongs: tortfeasors (people who commit torts) are usually ordered to pay a sum of

money as a ‘remedy’. Civil and criminal offences are not mutually exclusive, eg assault/theft. When an act constitutes more than one wrong, it may be easier to it as one wrong as opposed to

another to find a better remedy. A working definition (from the textbook): A tort is a breach of duty owed generally to one’s fellow

subjects, the duty being imposed by law and not as a consequence of duties imposed by parties themselves.

The consequential event of a breached duty is an infringed right or interest, as duties protect rights and interests.

Hinchy’s definition: A tort is a legal wrong committed by one person that allows the aggrieved person to sue the wrongdoer for the recovery of damaged for the wrong. The damages are awarded by way of compensation for the personal injury, property damage or economic loss that has actually occurred of the law presumes to have occurred.

Following on: Tort law protects the individual’s interest in physical and mental health and safety, in reputation, and to a certain extent, privacy and interests in land and goods. To a limited extent is also protects against pure economic loss.

1.2 Difficulty in defining a tort

1.2.1 Tort and Criminal Law

The procedure for criminal trials is different from that of civil trials:o Enforcement of criminal law is left to the prosecution authorities; whereaso Causes of action in tort are initiated by the victim.

Criminal law sanctions are different from tort law. It is often seen as: criminal law = punishment; tort law = compensation. However:

Page | 7

o Compensation has a deterrent effect;o Tortfeasor pays damages for their gain (even if there is no loss to the victim); ando Tort victims can be awarded ‘exemplary’ damages to punish and deter (usually awarded

in trespass and defamation actions where the defendant has acted ‘deliberately and outrageously.’

Criminal law is not solely about punishment. o Some statutory provisions require that the defendant compensate the victim.

Some crimes are torts (eg false imprisonment and deprivation of liberty), but many criminals cannot pay compensation; therefore, tort law plays a small role in criminal law. Also, not all torts are crimes, and vice-versa.

The standard of proof on civil cases is on the ‘balance of probabilities’, whereas criminal cases are decided when it is ‘beyond reasonable doubt’.

1.2.2 Tort and Contract Law

Contractual and Tortuous obligations can be distinguished in five ways:o Contractual obligations and ‘productive whereas tortuous obligations are ‘protective’;o People under contractual obligations will have received payment, but people may be

under tortuous obligations not to do something, and will have received no payment;o Most contractual obligations are between ‘identified and specified’ people, whereas

tortuous actions can arise between strangers;o Contractual obligations are defined quite specifically whereas tortuous obligations are

much more general; ando Justification for contractual obligations is that the person has done some ‘voluntary act’,

but justifications for tortuous obligations is that in doing some voluntary act, the person has committed a tort.

Contract fallacy: a person cannot sue on a contract to which they are not a party. Therefore, they should not be able to evade this rule by bringing an action in tort.

1.2.3 Tort and Restitution Law

Restitution law deals with obligations resting on A to restore benefits to B that A received from B, or benefits acquired by A from a third party at B’s expense.

Where tort comes in:o Where A has misappropriated B’s property, B is entitled to damages based upon its

value; ando Where A has exploited B’s property without consent, B may recover damages for the

exploit.

Page | 8

1.2.4 Tort, Trust and Property Law

Don’t get into it, as the relation between trusts and torts is very deep. However, a trust is an arrangement where the trustee holds, manages or uses property for the benefit of another (the beneficiary).

Tort plays a central role in protecting property rights & interests.

1.3 Standards of Liability

Tort liability is never absolute: the mere fact that the tort was committed is not sufficient evidence for damages.

o Unless the plaintiff argues that the act was of a certain sort of quality, in principle at least, there is some justification for the defendant.

There is no tort liability for involuntary conduct. Tort liability will not be imposed unless the plaintiff can prove the defendant was at fault.

o Fault involves intentional, reckless or negligent conduct.o It is harder to prove innocence than guilt – it has the effect of imposing liability without

proof of fault. Strict liability is liability regardless of fault, not in absence of it. Intent is a state of mind; negligence is a failure to take reasonable precautions to avoid foreseeable

and significant risks of injury; motive is ends or purposes beyond the immediately obvious.

1.4 Faults and Alternatives

Faults:o Only a small percentage of road/work accidents receive compensation;o It is a ‘cause-based’ compensation system; ando It is expensive to operate.

Alternatives include Workers’, Road Accident and Criminal Injuries compensation schemes. There are also many more, and these are all supplements to the tort system.

These alternatives mean that tort law is one part of a complex network of arrangements for dealing with the effects of injury etc.

Tort is an imperfect attempt to deal with complex social and human problems.

1.5 Sources

Tort law is predominantly precedent-based (common law). Decisions of English courts are often referred to, as are decisions from New Zealand and Canada, and

to a lesser extent, the US; however, we are becoming largely independent of foreign influence. There are many statutes that are relevant to tort law, however whilst the courts are bound by these

statutes, they must interpret them first.

Page | 9

1.6 Tort Theory

Although theorists present their positions in competition, they are complementary.

1.6.1 Economic Analysis

Legal rules can be used to give people incentive to behave in economically efficient ways. Liability for negligence and negligence law deters people from such conduct. Influencing people’s behaviour is only one of tort law’s purposes.

1.6.2 Corrective Justice Theory

Stresses that tort law is concerned with the impact of risky behaviour on the rights and interests of others.

It is concerned with ‘interpersonal responsibility,’ i.e. the relationship between this particular plaintiff and defendant (it does not include external factors).

Theorists say that the only way of explaining basic tort features is in terms of ‘correlative rights and obligations of doers and sufferers of harm.

o Tort law does now compensate all the injured, only those injured by torts.

1.6.3 Critical Theory

Deals with the social implications of tort law – ‘law is politics’. Both other theories conceal social implications:

o Perspectives of social groups, eg women, racial minorities, the poor etc; ando Whether there will be a flow-on effect of a particular decision to society.

Critical theorists are interested in:o Distributional assumptions and implications; ando Distributional effects.

1.7 Distinction between Trespass and Action on the Case

A trespass action (any intentional tort) is actionable per se. This means that the plaintiff is not required to prove actual damage to succeed. The action requires direct action by the defendant.

Other tortuous actions are ‘action on the case:’ the plaintiff must prove that there was actual damage in order to proceed. This type of action requires an indirect action by the defendant.

Page | 10

2. Intentional Torts against the Person

2.1 Introduction

An intentional tort against the person is an intentional, direct action by the defendant, and is actionable per se (the plaintiff does not have to prove that actual damage was caused by the defendant’s actions). By not insisting on proof of actual physical damage in all intentional torts, rights and interests such as humiliation and indignity are protected.

Fault is an essential element in determining liability in an action in trespass.

2.2 Battery

Battery is a direct act by the defendant causing bodily contact with the plaintiff without consent. Battiato v Lagana [1992] 2 Qd R 234 – Moynihan J at p235: ‘The direct, intentional imposition of any

unwanted physical contact on another person constitutes the tort of battery.’

2.2.1 Direct Act – Reynolds v Clarke (1726) 93 ER 747

This ‘direct act’ requires a direct interference with the person or plaintiff rather than an interference which is merely a consequence of the defendant’s act.

Fortescue CJ at p748: ‘If a man throws a log into the highway, and in that act it hits me; I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it, and receive an injury, I must bring an action upon the case.’

An act that set in motion an unbroken series of continuing consequence, the last of which ultimately caused contact with the plaintiff, is still ‘direct’ for trespass.

2.2.2 Positive Act – Innes v Wylie & Ors (1844) 174 ER 800

Battery requires the positive doing of an act, i.e. standing your ground as opposed to actually moving in order to batter the other person.

Lord Denman CJ at p803: ‘If the policeman was entirely passive like a door or a wall put to prevent the plaintiff from entering the room, and simply obstructing the entrance of the plaintiff, no (battery) had been committed on the plaintiff. The question is, did the policeman take any active measures to prevent the plaintiff from entering the room, or did he stand in the door-way passive, and not move at all?’

The jury concluded that the policeman had committed battery by putting his hands on and pushing the plaintiff.

Page | 11

2.2.3 Hostile Touching – In re F (Mental Patient: Sterilisation) [1990] 2 AC 1

Goff L J said that he ‘respectfully doubted’ whether touching must be ‘hostile’ in order for the touching of another to amount to battery (therefore, the ‘touching’ does not have to be ‘hostile’).

2.2.4 Intentional Act – Gray v Barr [1971] 2 QB 554

It is the action of the defendant which must be intended, not the harm which results. It is sufficient that the defendant intended only to frighten the plaintiff but in a manner fraught with

serious risk of bodily contact or harm. Lord Denning: ‘Yet his conduct in walking up the stairs with the loaded gun was no accident. It was

deliberate.’

2.2.5 Consent

In Australia, consent it a defence – see section 2.5.10

2.3 Assault

An assault is a direct threat by the defendant that places the plaintiff in reasonable apprehension of an imminent harmful or offensive direct contact with the plaintiff’s person either by the defendant or by some person or thing within the defendant’s control.

In other words, the plaintiff has a reasonable apprehension that a battery is about to occur.

2.3.1 Positive Act and Direct Physical Threat – Stephens v Myers (1830) 172 ER 735

Before an assault can be committed, there must be a positive act and a direct physical threat. Defendant must have ‘means of carrying out the threat’:

Stephens v Myers (1830) 172 ER 735

- Plaintiff was chairman of a parish meeting and sat at the head of the table.- There were 6 or 7 people between him and the defendant.- In the course of some angry discussion, a vote was taken to exclude the defendant.- The defendant said he would rather pull the plaintiff out of his chair, and began to advance with his

fist clenched. - The defendant was stopped by a person two seats from the plaintiff, where he was not close enough

to hit the plaintiff. Witnesses gave evidence that it appeared as the defendant intended to hit the plaintiff.

- Tindal CJ: 'It is not every threat, when there is no actual personal violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat into effect. The question I shall leave to you will be, whether the defendant was advancing at the time, in a threatening attitude, to strike the chairman, so that his blow would almost immediately have reached the chairman, if he had not been stopped…

Page | 12

…then, though he was not near enough at the time to have struck him, yet advancing with thatintent, I think it amounts to an assault in law. If he was so advancing, that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law.’

2.3.2 Must be reasonable apprehension of imminent/harmful contact

Imminent harmful contact: Zanker v Vartzokas (1988) 34 A Crim R 11; Barton v Armstrong [1969] 2 NSWR 451

- South Australian criminal case but is still relevant to the issue.- A young woman accepted a lift from the accused and whilst the van was moving, the accused offered

the woman money for sexual favours. - She rejected, and the accused accelerated the van saying ‘I am going to take you to my mate’s house.

He will really fix you.’ - She jumped out of the van, and although it was travelling at approximately 60km/h, she was not

injured seriously. - Per White J (pp15-16): ‘The young woman was in immediate and continuing fear so long as she was

imprisoned by the defendant. …this defendant's threat of violence was explicit, namely, that when they arrived at ‘his mate's house’, ‘he will really fix you up’. “The threat was, it is true, to be carried out in the future but there was no indication by the defendant whether the ‘mate's house’ was around the next corner or several or more streets away in the suburban area. The young woman was in immediate and continuing fear so long as she was imprisoned by the defendant. …this defendant's threat of violence was explicit, namely, that when they arrived at ‘his mate's house’, ‘he will really fix you up’. The threat was, it is true, to be carried out in the future but there was no indication by the defendant whether the ‘mate's house’ was around the next corner or several or more streets away in the suburban area.

I think the question is ‘how immediate must the threatened physical violence be after the utterance of the threat which creates the fear?’ Put in that way, it can readily be appreciated that the fear is a continuing fear in the mind of the victim, the utterance having as much effect in an hour or so as it has at the moment of utterance.’

Another case which provides an answer for this is Barton v Armstrong [1969] 2 NSWR 451. Per Taylor J at p455: ‘In my opinion the answer depends on the circumstances. Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Others, I believe, can create the apprehension even if it is made clear that the violence may occur in the future, at times unspecified and uncertain. Being able to immediately carry out the threat is but one way of creating the fear or apprehension, but not the only way. There are other ways, more subtle and perhaps more effective.’

Reasonable apprehension: Stephens v Myers; Brady v Schatzel, Ex parte Brady [1911] St R Qd 206

Page | 13

Whether or not the apprehension is reasonable will be determined by reference to whether the defendant had a present and apparent ability to carry out the threat. In Stephens v Myers per Tindal CJ: ‘It is not every threat, when there is no actual personal violence, that constitutes an assault,there must, in all cases, be the means of carrying the threat into effect.’

Is apprehension synonymous with fear? If the plaintiff is not fearful as to the intentions of the defendant, can there be apprehension?

Brady v Schatzel, Ex parte Brady [1911] St R Qd 206

- Is a criminal case but still relevant.- When the police officer Brady went to interview Schatzel’s son, Schatzel got very agitated and

pointed a rifle at Brady and the other police officer saying, ‘this is my law for you bastards. If the lot of you don’t clear out of this, I will put something in your bloody arses.’

- In cross-examination, Brady said that he ‘was not a bit scared’.- Per Chubb J (at p208): ‘In my opinion, it is not material that the person assaulted should be put in

fear…If that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or timid person.’

2.3.3 Conditional Threats – Tuberville v Savage (1669) 89 ER 684

In some circumstances assault can occur even when the threat is conditional, eg. ‘Don’t come any closer or I will shoot you.’

In Tuberville v Savage, The plaintiff put his hand upon his sword and said: ‘If it were not for the fact that the judges were in town, I would not take such language from you’. The issue for the court was whether this constituted an assault. It was held that it did not, because the plaintiff stated that he was not going to do anything.

2.3.4 Fault – Must be the intention to cause the apprehension – Hall v Fonceca [1983] WAR 309

The requirement of an assault is not necessarily an intent to cause harm, but an intention to create an apprehension that harm is about to occur.

In Hall v Fonceca, the fact that the defendant did not intend to punch the respondent when he moved his right hand was not relevant. The court said ‘it would be sufficient to constitute a threat if there had been an intention on the part of the defendant to cause apprehension to the plaintiff’.

2.3.5 Consent

The law of battery with regard to consent applies to assault as well (it is regarded as a defence).

Page | 14

2.4 False Imprisonment

2.4.1 Introduction – Myer Stores v Soo [1991] 2 VR 597

False imprisonment is a direct act by the defendant which intentionally deprives the plaintiff of his or her liberty without consent or lawful justification. The deprivation must be total. It arose as part of the writ of trespass to prevent wrongful restraint of persons. Its significance lies in its protection of the liberty of individuals.

Myer Stores v Soo [1991] 2 VR 597

- The plaintiff (Soo) was a regular customer of Myer Melbourne and was in the hi-fi area of the sote.- In the store, there were security cameras, and a store detective would watch these cameras. Police

were called if there was any suspicious activity. - On the day of the incident, two police officers were with the store detective in the security room on a

‘semi-social’ visit. - The store detective told the policemen that there had recently been crystalwear stolen and the man

he suspected was in the hi-fi department. - The three of them approached Mr Soo, who protested his innocence. - They asked Mr Soo to accompany them to the security room, which he did. He was in there for 1

hour and then was allowed to leave. - Later, the Police obtained a search warrant for Mr Soo’s home, and two police officers searched the

home and found nothing. They then suggested that he could attend the police station in a couple of days. Mr Soo voluntarily accepted.

- After being interviewed at the police station he was told he was innocent, so he left. - He sued Myer, the Store Detective and the Police for false imprisonment. - Succeeded in relation to the Myer security room because even though he agreed to go, he had no

other option other than to go with the staff, but he failed at the police station because he did that voluntarily.

- He obtained $10,000 for aggravated damages: distress/humiliation/stressful circumstances.- Per O’Bryan J (at p611): ‘The gist of the action for false imprisonment is the mere imprisonment and

the respondent carried the burden of establishing the imprisonment. It is enough to prove there was a constraint upon the respondent's will so great as to induce him to submit to deprivation of liberty. Actual physical force does not have to be proved…’

- Per McDonald J (at p 625): ‘In Carnegie v The State of Victoria (unreported, Supreme Court of Victoria, Full Court, 14 September 1989) the Full Court consisting of Crockett, O'Bryan and Gray JJ stated, at p. 4:

"The gist of the action for false imprisonment is the mere imprisonment. As a result the plaintiff carries the burden of establishing no more than imprisonment. He need not prove it was unlawful. If imprisonment is proved it is for the defendant if he is to escape liability to prove a lawful justification for the imprisonment either at common law or by statute." ‘

Page | 15

Therefore, the plaintiff proves imprisonment, and the defendant then proves lawful justification.

2.4.2 Must be a positive act of the defendant

The plaintiff must prove that the defendant positively contributed to his/her lack of liberty. If the defendant fails to do anything, and as a result the plaintiff is imprisoned, this is a passive act and cannot amount to false imprisonment.

2.4.3 Restraint of liberty must be total

Bird v Jones (1845) 7 QB 742

- The plaintiff was prevented by the defendant from using part of a bridge that was normally used as a footway because the defendant had put some seats there to view a regatta on the river.

- The plaintiff was told that he could use the other part of the bridge but he declined.- When he tried to force his way through and assaulted the defendant he was taken into custody by

police who were stationed there to prevent the plaintiff from using that part of the bridge. - In this case the court drew a distinction between a total restraint of liberty of a person and a partial

obstruction of their will.- The court held that the plaintiff had not been wrongfully imprisoned. This is because the was at

liberty to stay or go in any direction he pleased.

Symes v Mahon [1922] SASR 447

- Plaintiff was informed by a police officer that there was a warrant for his arrest and he had to accompany the police officer to Adelaide.

- Mistaken identity: the plaintiff succeeded in the action as he did not have any other option other than to accompany the police officer to Adelaide (i.e. total restraint of his liberty similar to Soo case)

Murray v Ministry of Defence [1988] 1 WLR 692

- Plaintiff does not need to be aware of false imprisonment.- In this case, however, the Court stated that lack of knowledge of false imprisonment would affect the

damages that are awarded. Only nominal damages will be awarded unless the plaintiff can otherwise prove some form of damage.

2.5 Defences

2.5.1 Necessity

There are three facets that are required in order for a defendant to successfully raise the defence:

Page | 16

o Defendant must prove that it was reasonably necessary to do the act, in respect of which the action is brought, to preserve life or protect the person from a situation of great danger of harm;

o The danger must outweigh the illegal activity undertaken to avoid the danger;o There must be no reasonable legal alternatives;o The threat was not merely in the mind of the defendant but existed actually; ando It created an urgent situation of imminent peril.

The defendant does not need to prove that the measures he/she took actually succeeded or whether without the defendant’s interference, the plaintiff would have suffered injury or destruction (Cope v Sharpe (No 2) [1912] 1 KB 496).

2.5.2 Incapacity: Insanity and Infancy

Insanity: Morris v Marsden [1952] 1 All ER 925 (preferred over White v Pile (1951) 68 WN (NSW) 176)

- The judge found that at the time of attack on the plaintiff, the defendant’s mind directed the blows he struck.

- The defence of insanity was held not to be available to the defendant even though he was a certifiable lunatic.

- Per Stable J (at p928): ‘Knowledge of wrongdoing is an immaterial averment, and that, where there is capacity to know the nature and quality of the act, that is sufficient although the mind directing the hand that did the act is diseased.’

Infancy: McHale v Watson (1964) 111 CLR 384

- The defendant, who was aged 12 at the time, threw a metal “dart” at a post, which ricocheted off the post and struck the plaintiff, who was 9, in the eye occasioning serious injuries.

- It was contested whether the case was a trespass or negligence case. Even though it was to be decided in negligence, Windeyer J’s obiter at p386 provides a good explanation: ‘A child is personally liable for the consequences of his wrongful acts. This is certainly so if he was old enough to know that his conduct was wrongful … that is to say, if, in the common phrase, he was old enough to know better.’

2.5.3 Mistake - Hall v Fonceca [1983] WAR 309

Mistake is not a defence for intentional torts, however it may be relevant in mistaken self-defence:o If the defendant, erroneously but reasonably believing that the plaintiff is about to

attack, uses force to defend himself or herself there is no liability if the defendant used no more force that was seen to be on reasonable grounds to be necessary (Hall v Fonceca [1983] WAR 309).

Page | 17

2.5.4 Ex Turpi Causa – Smith v Jenkins (1970) 119 CLR 397

Per Kitto J (at p403): ‘Persons who join in committing an illegal act which they know to be unlawful or which they must be presumed to know to be unlawful … have no legal rights inter se by reason of their respective participations in that act.’

This suggests that the fact that the plaintiff and the defendant are participating in an illegal course of conduct in which both parties are jointly engaged will afford the defendant a complete defence in relation to any tort that arises from that course of conduct.

2.5.5 Self-Defence – Fontin v Katapodis (1962) 108 CLR 177; Albert v Lavin [1982] AC 546

A person who is threatened or attacked by another and who reasonably believes that he or she is in danger of death or serious injury can act in order to protect his or her right of personal safety. The act, however, must be reasonably necessary and must not be excessive.

Fontin v Katapodis (1962) 108 CLR 177

- After an exchange of words, the plaintiff took a wooden T-square and hit the defendant once on the arm and once on the shoulder.

- When he raised the T-square again, the defendant picked up an off-cut of glass and threw it at the plaintiff’s face.

- The plaintiff raised his hand to fend off the piece of glass and it cut his thumb, severing the ulnar nerve.

- Per McTiernan J at p182: ‘To throw the piece of glass at the plaintiff as a means of self-defence was out of all reasonable proportion to the emergency confronting the defendant.’

The question of whether measures taken in self defence were reasonably necessary and whether the defendant’s actions were not excessive are questions of fact.

However, courts do not forget that ‘an action in self-defence is instinctive and does not wait upon a precise appreciation of the exigencies of the occasion or upon the formation of a belief concerning the precise measures which are necessary.’

Albert v Lavin [1982] AC 546

- A person who is detained (by a police officer or private citizen) because he or she is breaking or threatening to break the peace cannot use force to free themselves from such a detention and those who do will be liable to an action in trespass. In such circumstances they will not be allowed to rely on self defence.

- Per Lord Diplock (at pp564-5): ‘Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peacerefrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will.’

Page | 18

2.5.6 Defence of another

This is not assessable.

2.5.7 Defence of property

This is not assessable.

2.5.8 Provocation

This is not assessable.

2.5.9 Inevitable accident – McHale v Watson (1964) 111 CLR 384

The defendant can show that an act was not done intentionally and that it was done without negligence or carelessness on the defendant’s part.

McHale v Watson (1964) 111 CLR 384

- The defendant who was alleged to have thrown a metal dart in the direction of the plaintiff escaped liability in tort because it was shown that there was absence of intent to make contact with the body of the plaintiff and absence of negligence. The court held that the plaintiff’s injuries were regarded as a consequence of an inevitable accident.

2.5.10 Consent – Marion’s Case (1992) 175 CLR 218

An action in battery or assault will not succeed if there is consent given. This does not necessarily mean express consent: consent may be implied (depending upon the

circumstances) Collins v Wilcock; In re F (Mental Patient: Sterilisation). However if implied consent cannot be inferred from the circumstances, express consent will be required.

For the consent to be valid:o Consent must be real and freely given (plaintiff needs to have been informed in broad

terms of the nature of the physical contact, but not the exact nature; consent under duress is not freely given); and

o Any consent given must not be exceeded (Murray v McMurchy; Giumelli v Johnston) In Australia, it is up to the defendant to prove that consent existed: as such, it is treated as a defence.

Marion’s Case (1992) 175 CLR 218

- McHugh J (at p310-11): ‘In England, the onus is on the plaintiff to prove lack of consent. That view has the support of some academic writers in Australia, but is opposed by others. It is opposed by Canadian Authority. It has also been opposed by Australian authority. Notwithstanding the English view, I think the onus is on the defendant to prove consent… the contrary view is inconsistent with a

Page | 19

person’s right of bodily integrity. Other persons do not have the right to interfere with an individual’s body…’

Page | 20

3. Trespass to Land

3.1 What is trespass to land?

Every occupier of land has a right to protect his or her right to possession of that land. Trespass is any unauthorised, direct interference with another’s lawful possession of land. It is

actionable per se: the plaintiff does not have to prove actual loss or damage. There are five characteristics which must be fulfuilled:

o The interference must be with land in the lawful possession of the plaintiff;o There must be a positive and direct interference;o The interference must relate to land; o There must be fault; ando There must be lack of consent.

3.1.1 Interference must be with land in the lawful possession of the plaintiff – Delaney v T. P. Smith Ltd [1946] KB 393

Trespass to land is available only as a remedy for someone who is in possession of land pursuant to some form of proprietary right.

Delaney v T. P. Smith Ltd [1946] KB 393

- The defendant owned a house in England which was damaged during WWII. The plaintiff was anxious to obtain tenancy on completion of repairs.

- In August 1944, an oral tenancy agreement was made between the plaintiff and the defendant’s agent.

- Under this agreement the plaintiff would pay rent of 24/6 per week, pay two weeks in advance and commence occupation as soon as the house was ready.

- It was ready in December 1944; however the plaintiff was informed that the defendant had decided to sell the house. The plaintiff was told he could not rent the house. However, somehow the plaintiff came into possession of a key and took possession on 11 December 1944. On 20 December he was forcibly ejected from the house.

- The plaintiff sued for trespass to land.- He failed his action because he was not a lawful tenant under the Law of Property Act 1925. As he

was not a lawful tenant, he was not in possession of the land (and house) pursuant to some form of proprietary right (a tenancy agreement which complied with the act).

- If there was a tenancy agreement which complied with the act, the plaintiff would have had a proprietary right, and therefore would have succeeded.

Page | 21

3.1.2 Must be a positive act and direct interference – Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182; Public Transport Commission of NSW v Perry (1977) 14 ALR 273

For an action to succeed in trespass to land there must be a positive act and a direct interference by the defendant. The issue of directness is considered in the Esso Petroleum case. The issue of positivity is dealt with in the case of Public Transport Commission of NSW v Perry (1977) 14 ALR 273.

Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182 – Direct Act

- An oil tanker was stranded and to prevent the vessel breaking her back, the master jettisoned 400 tons of oil which was carried to the foreshore, causing damage.

- The plaintiff foreshore owners sued the defendant ship owners based on trespass to land, nuisance and negligence.

- On appeal, the defendant (appellant) company was cleared of all allegations. Lord Tucker (at p244): ‘…trespass to land does not like on the facts of this case, as the discharge of the oil was not done directly onto the foreshore but outside the river estuary to the plaintiff’s foreshore.’

Public Transport Commission of NSW v Perry (1977) 14 ALR 273 – Positive Act

- While waiting for a train, the respondent suffered an epileptic fit and fell onto the rail tracks. She suffered injuries when an oncoming train hit her.

- It was held by the majority (Gibbs, Stephen, Mason and Jacobs JJ; Barwick CJ dissenting) that the respondent, when standing upon the railway platform, was lawfully upon the appellant's land, and her involuntary or inadvertent movement therefrom onto the track, upon which she was neither invited nor licensed to be, did not classify her as a trespasser for the purpose of defining the appellant's duty towards her.

3.1.3 Interference with or entry upon must relate to land - Kelsen v Imperial Tobacco Co Ltd [1957] 2 KB 334

Even though the interference must relate to land, it can relate to airspace as well.

Kelsen v Imperial Tobacco Co Ltd [1957] 2 KB 334

- The plaintiff, Kelsen, was a tobacconist and leased his premises. His shop was located at 407-407b City Road, Islington, London. There was a skylight on the roof of this single-storey shop which was never used by the plaintiff.

- The defendant wanted to put up a sign on the adjoining property, 409. The solicitors for number 409 sent a letter to the owners of Kelsen’s leased premises, and the freehold owners agreed. The sign jutted over Kelsen’s premises.

- After failing to come to an agreement, Kelsen gave formal notice to the defendant to remove the sign. The plaintiff sued the defendant seeking an injunction to remove the sign.

Page | 22

- It was held that an invasion of the airspace over the plaintiff’s tobacco shop amounted to trespass (as it is actionable per se). McNair J concluded that it was a proper case to award an injunction, and that there had been no nuisance as there was no damage caused.

3.1.4 Transient Intrusions – Graham v K. D. Morris & Sons Pty Ltd [1974] Qd R 1; Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 479

- Transient intrusions can amount to trespass as seen below.

Graham v K. D. Morris & Sons Pty Ltd [1974] Qd R 1

- Mrs Graham (plaintiff) owned the house next to a construction site run by K. D. Morris & Sons Pty Ltd (defendant). The jib of a crane would often swing over her property.

- The plaintiff’s solicitors wrote a letter to the defendant demanding the jib be stopped from swinging. The defendant said this was not possible.

- The plaintiff’s solicitors wrote a letter further to the previous one saying that if the jib did not stop swinging then an injunction would be sought.

- According to W.B. Campbell J (at pages 4,5 and 7), in applying Kelsen, said that trespass to land had occurred. His Honour said that to award damages would be to allow a trespass to continue (condoning a breach of the plaintiff’s proprietary rights), therefore an injunction was necessary. This is because the defendant did not seek prior permission, and did not start to negotiate until the writ had been issued. Section 180 of the Property Law Act 1974 (Qld) was not referred to because it did not exist when the verdict was brought down.

Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] 1 QB 479

- The defendant was in the business of taking aerial photographs and took a photograph of Baron Berstein’s property. The allegation was that the defendants were guilty of trespass to land.

- It was held by Griffiths J that a landowner’s rights in the airspace do not extend to an unlimited height, therefore no trespass had occurred. The problem is to balance the rights of an owner to enjoy land and the general public to also.

- The test his honour came up with was “did it restrict the owner’s enjoyment and did it allow the public’s enjoyment?” In applying this test, his Honour found there had been no trespass.

3.1.5 Section 180 of the Property Law Act 1974 (Qld) – Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42

- Section 180 states that:

(1) Where it is reasonably necessary in the interests of effective use in any reasonable manner of any land (the dominant land) that such land, or the owner for the time being of such land,should in respect of any other land (the servient land) have a statutory right of user in respect of that other land, the court may, on the application of the owner of the dominant land but

Page | 23

subject to this section, impose upon the servient land, or upon the owner for the time being of such land, an obligation of user or an obligation to permit such user in accordance with that order.

…

(3) An order of the kind referred to in subsection (1) shall not be made unless the court is satisfied that—

(a) it is consistent with the public interest that the dominant land should be used in the manner proposed; and(b) the owner of the servient land can be adequately recompensed in money for any loss or disadvantage which the owner may suffer from the imposition of the obligation; and(c) either—

(i) the owner of the servient land has refused to agree to accept the imposition ofsuch obligation and the owner’s refusal is in all the circumstances unreasonable; or(ii) no person can be found who possesses the necessary capacity to agree to accept the imposition of such obligation.

Lang Parade Pty Ltd v Peluso [2006] 1 Qd R 42

- Lang Pde Pty Ltd applicant under s180; Peluso respondent- Applicant sought a ‘statutory right of user’ for 2 tower cranes- In November 2003, the Pelusos met with the design manager of the construction company,

contractors Abbey Corporation- In January 2004, the design manager wrote in his diary: ‘no worries with crane provided we don’t

drop anything’- The cranes would encroach upon the Peluso’s property by 6-8m. When not in operation, the jib was

allowed to swing freely at a height of approximately 28m.- In November 2004, the Pelusos’ solicitors wrote a letter on behalf of their client stating that they had

never consented to the jib encroaching on their property. Lang Pde responded. *In the judgment (at ¶12) the case of LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd is referred to

- Lang parade offered $5,000 as ‘compensation’, which was later increased to $16,250- The Pelusos’ solicitors replied to these offers and said access would be agreed to if $90,000 was paid- There was no calculation for this sum, and it became obvious that they were after money- Soon after, the Pelusos were seeking $160,000- The judge looked at practical alternatives to the cranes and possible alternative positioning, and the

court appointed an expert to give advice- Mobile cranes were dismissed, and the court concluded that there was no practical alternative to the

regular cranes that were in use. - Douglas J analysed s180, in particular (1): ‘public interest’- The main issue for the rest of the judgment is the analysis of adequate compensation

Page | 24

- His Honour rejected the previous case (on what was saved/gained) – his issue was a ‘reasonable amount’

- The encroachment was temporary, therefore his Honour concluded that $20,000 was reasonable.- Peluso paid all court costs.

3.1.6 Fault – Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107

Public Transport Commission of New South Wales v Perry (1977) 137 CLR 107

- See facts on p18- In the circumstances, the High Court held that the plaintiff had not been trespassing because she was

not at fault or liable to negligence – it was an involuntary act.

3.1.7 Unjustifiable Entry or Interference – Halliday v Nevill and Another (1984) 155 CLR 1

Halliday v Nevill and Another (1984) 155 CLR 1

- Halliday was charged by police constables Nevill and Brida with a number of charges. - Halliday, then a disqualified driver, was reversing a car out of 375 Liberty Parade when he saw a

police care, where he drove back in- The officers walked down the driveway and arrested him for driving whilst disqualified- He escaped to his own house at 370 Liberty Parade. The officers pursued him into the house where

there was a scuffle before he was finally overcome- If an entry is unobstructed, the law grants an implied licence for lawful entry. If the entry is locked,

then there is no implied right- This licence is a question of law, whereas whether the police went up the driveway was a question of

fact- Held by Gibbs CJ, Mason, Wilson and Deane JJ (at p8): ‘The evidence indicates that the premises at

375 Liberty Parade were residential premises with an open driveway to the roadway. There is no suggestion that the driveway was closed off by a locked gate or any other obstruction or that there was any notice or other indication advising either visitors generally or a particular class or type of visitor that intrusion upon the open driveway was forbidden. That being so, a variety of persons with a variety of legitimate purposes had, as a matter of law, an implied licence from the occupier to go upon the driveway.

The question which arises is whether, in those circumstances, the proper inference as a matter of law is that a member of the police force had an implied…licence from the occupier to set foot on the open driveway for the purpose of questioning or arresting a person whom he had observed committing an offence on a public street in the immediate vicinity of that driveway.

The conclusion which we have reached is that common sense, reinforced by considerations of public

Page | 25

policy, requires that that question be answered in the affirmative. All that that conclusion involves is that, in the absence of any indication to the contrary, the implied…licence to persons to go upon the open driveway of a suburban dwelling for legitimate purposes is not so confined as to exclude from its scope 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. It follows that Police Constable Nevill was lawfully upon the driveway of 375 Liberty Parade when he arrested the appellant.’

3.2 Remedies

3.2.1 Damages

If the trespass results in damage in the sense of personal injury, property damage or financial loss then the defendant may be liable for this. Any assessment of damages is made upon the rule of whether the damage sustained was the natural or reasonable consequence(s) of the original wrongful act. Nominal damages can be awarded for injuries to their feelings (humiliation, abuse etc)

3.2.2 Injunctions

The most common remedy for trespass to land. The reason for these is summed up by W.B. Campbell J in Graham v K D Morris & Sons Pty Ltd [1974] Qd R: ‘In all the circumstances I consider that I cannot allow the defendant to continue to commit this unlawful trespass. If I did not grant the injunction I would be condoning a clear breach by the defendant of the plaintiff’s proprietary rights. The time to seek permission and for negotiation was prior to the commencement of the work…Why should I bring pressure upon the plaintiff to hamper her legal rights for monetary compensation of any amount?’

3.2.3 Abatement by Self-Help

This is the right in a person to remedy a situation by a resort to self-help. If a person interferes with the plaintiff’s exclusive possession of land by coming on to the land, the plaintiff can eject that person (Tulley v Read (1823) 1 Car & P 6). If the defendant entered forcibly, he or she can be ejected forcibly; as such, if the defendant did not forcibly enter, force cannot be used to eject them (Polkinghorn v Wright (1845) 8 QB 197; Hemmings v Stoke Pages Golf Club [1920] 1 KB 720).

In Burton v Winters [1993] 1 WLR 1077, at p1081 the English Court of Appeal said that ‘the courts have confined the remedy by way of self-redress to simple cases such as an overhanging branch, or encroaching root, which would not justify the expense of legal proceedings, and urgent cases which require an immediate remedy.’

However, this remedy has been discouraged by many judges.

Page | 26

3.3 Defences

3.3.1 Necessity

It is much a matter of public policy, and current community attitudes will play a part in deciding whether an act was ‘necessary’ or not.

However, the defendant must prove that it was reasonably necessary (Kirk v Gregory (1876) 1 Ex D 55; Proudman v Allen [1954] SASR 336) to do the action, not convenient (Murray v McMurchy [1949] 2 DLR 442).

It was an urgent situation and existed actually (not merely in the belief of the defendant) It was not any act of negligence on the defendant’s part that contributed to the urgency of the

situation.

3.3.2 Re-Entry on Land

‘This is nothing more than the common law remedy of self-help, which allows a person who is entitled to exclusive possession of land to come on to the land and to eject the person who is no longer entitled to be there without incurring any liability in tort, if no more force is used than is reasonably necessary.’ (Trindade p161)

For authority: Harman J in Aglionby v Cohen [1955] 1 QB 558.

3.3.3 Inevitable Accident

A defendant who succeeds in showing that the act was note done intentionally and that it was done without negligence or carelessness, then they will escape liability in trespass (or torts in general) – Public Transport Commission of NSW v Perry (1977) 14 ALR 273.

3.3.4 Consent

If there is consent to entry on land or for things to be placed on land then there can be no trespass. As for intentional torts to the person, consent can be express or implied.

A person who comes on to the land of another with the latter’s consent can become a trespasser is the person remains on the land after the permission is revoked (per Gaudron and McHugh JJ in Plenty v Dillon (1991) 171 CLR 635 at 647).

3.3.5 Lawful Authority

‘Under common law a police officer or citizen has a power of entry into premises and, if necessary, powers to break down doors to do so, in four instances without being subjected to an action for trespass to land.’ (Trindade p163)

o A police officer or citizen to prevent murder;o A police officer or citizen if an arrestable offence had in fact been committed and the

person who had committed said offence had been followed to a house;

Page | 27

o A police officer or citizen if an arrestable offence was about to be committed, or would be committed unless prevented; and

o A police officer following an offender running away from an affray. ‘In every State and Territory of Australia statutory provision allow a police officer to enter private

property for the purpose of effecting an arrest or to assist in the eviction of a person from premises or land and they also give power to a local authority or a statutory body to enter upon private land for the purposes mentioned in the statute.’ (Trindande p165)

Page | 28

4. Nuisance

4.1 Private Nuisance

4.1.1 Background

Private nuisance involves an unreasonable, indirect interference with the use and enjoyment of land in respect of a person who has exclusive possession of that land. It is considered action on the case. In order to succeed in an action for nuisance, there must be actual damage suffered. This damage can be physical; however interference with comfort or amenities through noise, smoke, smells etc can be considered damage.

4.1.2 Noise

Sections 6W and 6X of the Environmental Protection Regulation 1998 (Qld) sets out when noise can occur. A contravention of these sections is reported to the local Council for a residential contravention, and to the Environmental Protection Agency (EPA) for an industrial or commercial contravention. Such a contravention constitutes an offence under the Regulation.

4.1.3 Material Damage vs Personal Discomfort – St Helen’s Smelting v Tipping (1865) 11 HLC 642

When material damage to property occurs, nuisance is generally satisfied. However, if the damage was to personal discomfort, then in order for the nuisance to be satisfied,

the interference must be unreasonable.

4.1.4 Unreasonableness

Whilst all these factors are relevant, they do not all need to be considered in a case. They are not ‘elements’, they only to be used to determine whether an action in nuisance can succeed.

4.1.4.1 Triviality- Walter v Selfe (1851) 64 All ER 849

An interference must be more than trivial to amount to nuisance.

Walter v Selfe (1851) 64 All ER 849

- The plaintiff (Walter) sought an injunction in nuisance in respect of the smell and cinders that resulted from the defendant (Selfe) making bricks in a kiln on a strip of land adjacent to the plaintiff’s house.

- The plaintiff succeeded in obtaining an injunction.

Page | 29

- The Vice-Chancellor stated at p852: ‘And both on principle and authority the important point next for decision may properly, I conceive, be thus put: ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the English people?’

4.1.4.2 Give and Take – Kennaway v Thompson [1981] 1 QB 88; Clary v Principal and Council of the Women’s College (1953) 90 CLR 170

Kennaway v Thompson [1981] 1 QB 88

- The plaintiff (Kennaway) owned a house on land adjoining a lake on which motor boat races were conducted regularly. She sued for an injunction and damages and succeeded on appeal. The injunction simply reduced the frequency and length of motor boat racing on the lake.

- The Court of Appeal explained the issue of ‘give and take’ in the context of unreasonableness on p94: ‘The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.’

Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170

- The Women’s College at UQ leased part of a house at Kangaroo Point and some students from the college stayed there. The Clareys were the freehold owners of the house and live in the part that was not subject to the lease.

- The plaintiffs (Mr and Mrs Clarey) started an action, alleging that the students had breached the Landlord and Tenants Act by creating a nuisance. The basis of this nuisance was talking before bed, moving chairs on the floor, keeping late hours etc.

- The High Court concluded that there was no nuisance. At p175: ‘But the noises made by the students were only noises of the kind that are incidental to the occupation of premises as a dwelling.’

4.1.4.3 Hypersensitivity – Robinson v Kilvert (1889) 41 Ch D 88

- The defendant landlord, Kilvert, leased a floor of his dwelling to the plaintiff, Robinson, on which he manufactured brown paper. The defendant manufactured cardboard boxes on his floor.

- The heat from the manufacturing process (only about 26o C) resulted in the spoiling of the brown paper.

- Lopes LJ concluded at p97: ‘A man who carries on an exceptionally delicate trade cannot complain because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade.’

Page | 30

4.1.4.4 Locality - St Helen’s Smelting v Tipping (1865) 11 HLC 642

- The plaintiff, Tipping, commenced an action against the defendant, St Helen’s Smelting, to recover damages for material damage to the plaintiff’s trees and crops caused by noxious gases from the defendant’s smelter.

- The Lord Chancellor explained: ‘If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which are carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration.’

- The main point from this is that if you live in an industrial area, then these fumes would be the norm and therefore no nuisance. However, because the plaintiff was not living in an industrial area, it amounted to nuisance (which is what the court held, i.e. that the material damage amounted to nuisance).

4.1.4.5 Time and Duration – Munro v Southern Dairies [1955] VLR 332

- The plaintiff owned a house next to a dairy run by the defendant. The defendant used horse-drawn vehicles to deliver milk for sale, and the defendant’s stables were next to the plaintiff’s house. As such, there was significant interference from noise, smell, flies etc.

- The defendant gave an undertaking that it would move and build new premises, however the plaintiff sought an injunction for it to be stopped and succeeded.

- The court held that ‘one night’s sleep is sufficient’, but they also considered locality, and whether the nuisance was continuous (i.e. it had gone on for several years).

4.1.4.6 Motive – Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468; Christie v Davey [1893] 1 Ch D 316

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

- The defendant was a property developer and wanted to subdivide and develop a property near the fox farm.

- Beside the fox farm there was a sign saying that foxes were bred.- The defendant was concerned that people would see the sign, and demanded that the sign be

removed. The plaintiff told him to go away.- The defendant sent his son with a gun and he fired shots next to where the foxes were, a few days in

a row (foxes don’t breed when it’s noisy). The defendant was held liable in nuisance.- The court looked at motive, i.e. the act was done maliciously, so therefore motive is relevant.

Page | 31

Christie v Davey [1893] 1 Ch D 316

- The plaintiff (Christie) was a music teacher who would conduct lessons and play piano until late. The defendant (Davey) was a wood engraver.

- The defendant’s solicitors sent a letter asking the plaintiff to stop. The plaintiff ignored it. - The defendant retaliated by making a racket of his own – blowing whistles, knocking trays together

etc. - It was held that the plaintiff’s noise was legitimate but the defendant’s was not.

4.1.5 Interests protected

The tort of nuisance is not limited to property damage. The existence of a brothel close to houses, for example, was held to be nuisance (Thompson-Schwab v Costaki [1956] 1 WLR 335). Even ugly buildings could be a nuisance (was not ruled out in Kent v Cavanagh (1973) 1 ACTR 43).

There is also no common law right to an unobstructed view from one’s premises (Phipps v Pears [1965] 1 QB 76).

A landowner has no right not to be observed in the use of premises, even if they are used for commercial purposes that may be injured by the observation (Victoria Park Racing & Recreation Grounds Pty Ltd v Taylor (1937) 58 CLR 479).

Therefore, the pattern of included and excluded interests is based on how the ‘costs and benefits of social life should be distributed.’ (Trindade p175)

4.1.6 Who can sue? – Hunter v Canary Wharf [1997] AC 665

- In this case, the plaintiff was living in a residential development, and the defendant constructed a large building which interfered with television reception.

- It was held that this was not private nuisance. The right to sue in private nuisance was considered.- Held by Gough LJ: ‘The essence of nuisance is that it is a tort to land. Or to be more accurate, it is a

tort directed against the plaintiff’s enjoyment of rights over land … In true cases of nuisance, the interest of the plaintiff which is invaded is not the interest of bodily security, but the interest of liberty to exercise rights over land … Since the tort of nuisance is a tort directed at the plaintiff’s enjoyment of rights over land, an action of private nuisance will usually be brought by the person in actual possession either as freeholder or tenant.’

4.1.7 Who can be sued? – Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574

- ‘The first plaintiff/first respondent, Peden Pty Ltd as trustee for the Dunn Family Trust (“the company”), was the occupier of the Moondarra Motel (“the motel”) in Innisfail. The second plaintiffs/second respondents, Peter Dunn and Denise Dunn (“the Dunns”), were the managers of the motel where they resided and the shareholders and directors of the company. The second defendant/applicant, Celina Maria Bortolazzo, jointly with her two daughters, Clara de Faveri and Gloria Sim, owned the property adjacent to the motel at 17 Ernest Street on which was situated an old house divided into two flats. The applicant, who was about 80 years old, and Ms de Faveri, on

Page | 32

behalf of the three co-owners, undertook the letting of those flats. In about March 2003 Frank Maru and Cynthia Broome became the occupants and tenants of one of the flats, initially under an oral tenancy agreement with the applicant and her co-owners. From 19 August 2003 Ms Broome was responsible for the flat under a written standard Form 18a General Tenancy Agreement under the Residential Tenancies Act 1994.’ (per McMurdo P and Philippides J [2])

- It was held that: (Per McMurdo P and Philippides J) ‘the applicant will only be liable for the nuisance created by her tenants after October 2004 if she expressly authorised the nuisance or the nuisance was certain to result from the purposes for which the property was let.’ ([45])

- In other words: a landlord is not liable to a neighbour for a nuisance created by the tenant, unless the landlord expressly authorised the nuisance or it was certain to result from the purposes for which the property was let.

4.2 Defences

4.2.1 Coming to the nuisance – Campbelltown Golf Club v Winton [1998] NSWSC 257

- The plaintiff purchased a house next to a golf course on the fifth fairway. Golf balls were hit into the plaintiff’s yard.

- At trial the defendant’s defence was ‘coming to the nuisance’ as the plaintiff moved to a danger area.- The court said this was rubbish and that the defence did not exist.

4.2.2 Statutory Authorisation –Lester-Traves v City of Frankston [1979] VR 2

- This case involved the council using land for recreational purposes. In this case it was a golf course.- The Local Government Act in Victoria said that the council ‘may, from time to time, purchase land for

recreational purposes etc.’- The council’s defence was that there was statutory authorisation, however the court held that the

phrase was permissive and not mandatory, therefore it was not a defence.

4.3 Remedies

4.3.1 Abatement

This is mainly concerned with public nuisance and has no real relevance to private nuisance.

4.3.2 Injunctions

The court will not by injunction order the doing of something that is physically impossible. But even if compliance with the injunction may be difficult or expensive, this is no ground not to award it. This is much a matter of public policy.

Page | 33

4.3.3 Damages

In order to recover damages for nuisance, an individual must show loss or the action will not succeed.

Page | 34

5. Intentional Torts against Chattels

5.1 Trespass to Goods

5.1.1 Overview

Trespass to goods is a direct interference by a defendant with a plaintiff’s possession of goods. It is usually brought for wrongful, intentional interferences, but actions for reckless and even careless

interferences are not precluded (negligent trespass). There are four matters for elaboration:

o The nature of the plaintiff’s interest, i.e. what kind of possession the plaintiff must have in order to sue;

o The nature of the defendant’s and, i.e. what kind of act constitutes trespass to goods;o The question of whether interferences are actionable per se or whether proof of

damage is required; ando Jus Tertii (not examinable)

5.1.2 The nature of the plaintiff’s possession

Trespass is a wrong to possession (Penfolds Wines Pty Ltd v Elliott). The possession a plaintiff must have at the time of trespass is ‘actual or constructive possession of

the goods.’ (Johnson v Diprose [1893] 1 QB 512) ‘A person without actual or constructive possession cannot bring an action for trespass to goods

except where that person brings an action for the violation of the actual or constrictive possession of his/her servant/agent/bailee (Penfolds Wines Pty Ltd v Elliott).’ (Trindade)

Actual possession: actual control of the chattel, eg a person is driving a car or wearing a watch. Constructive possession: no direct control of the chattel, but it still belongs to the person, eg a person

drops their watch into the sea. (Eg Hamps v Darvey [1948] 2 KB 311: If a person sets pigeons free for a race etc, they still have constructive possession of the pigeons)

5.1.3 The nature of the defendant’s actions

The defendant must have directly occasioned an act, i.e. he/she must have had direct contact.o Any act that sets in motion a series of continuing consequences is seen as direct.

The act of the defendant must be voluntary (where a sleepwalker breaks an expensive vase, they will not be liable for the damage – Beals v Hayward [1960] NZLR 131)

Mistake does not make the act involuntary (Colwill v Reeves (1811) 2 Camp 575) Must be intentional: ‘The act is intentional when the defendant deliberately or willfully interferes

with the plaintiff’s goods and it is also intentional if the contact or interference with the goods is substantially certain to follow from the defendant’s act.’ (Trindade p204)

Page | 35

5.1.4 Is it actionable per se?

For asportation of goods, it is actionable per se (no damage needs to have been suffered) –Kirk v Gregory (1876) 1 Ex D 55

For contact with goods, it is probably actionable per se, but the lack of case authority shows that it is not free from doubt. (Trindade p206)

5.2 Conversion

5.2.1 Introduction – Kuwait Airways Corporation v Iraqi Airways Co and Others [2002] UKHL 19

This cannot be defined, but described. In England the Kuwait Airways case provides the features:

o The defendant’s conduct is inconsistent with the rights of the owner or other person entitled to possession of those goods;

o The conduct must be deliberate;o The conduct must not be accidental;o The conduct must be so extensive an encroachment on the rights of the owner or other

person entitled to possession as to exclude him or her from use and possession of the goods.

‘Today, in Australia, the tort o f conversion is committed when a defendant, by intentional conduct and without lawful justification, deals with goods in a manner repugnant to the plaintiff’s possession (actual or constructive) or immediate right to possession of those goods.’ (Trindade p208)

5.2.2 What are goods?

A thing that is incapable of being property is incapable for conversion (Doodeward v Spence (1908) 6 CLR 406)

Any tangible, movable object in or capable of being in possession can be ‘converted’ (eg bottles – Penfolds case)

5.2.3 The nature of the plaintiff’s interest in goods

In General

If a defendant interferes with the actual possession of a plaintiff’s goods, the plaintiff has an action in both trespass to goods and conversion (Wilbraham v Snow (1669) 2 Wms Saund 47)

Bailment

A bailee who has actual possession of the goods has a sufficient interest o sue in conversion. If the bailment is for a term, then only the bailee can sue for that term and the bailor cannot.

Page | 36

Lien

This is a right of a creditor to retain goods until a debt is paid, therefore the person with lien over the goods has a limited interest in the goods.

Mortgage

A mortgagor may bring an action against the mortgagee either against a third party or against the mortgagee if they became a wrongdoer by entering and taking goods without proper notice.

Sale

A buyer’s interest in conversion depends on the terms of the sale.

Contract

To have an action in conversion, it depends whether the plaintiff has a right to immediate delivery of the goods.

Statute

Sometimes statue allows immediate rights of possession to particular plaintiffs, therefore allowing actions in conversion.

Estoppel

Sometimes a person who would otherwise have a good title to goods is e4stopped from asserting title to the goods, and this situation can be brought on by both the common law (eg Egg Marketing Board (NSW) v Graham (1961) SR (NSW) 952) and by statute (eg Goods Act 1958 (Vic)).

Co-Owners

A co-owner has no right to sue in conversion is the other co-owner uses/takes/keeps the goods. A co-owner has a right to sue if the other co-owner destroys/sells the goods (without prior consent

by both parties).

Finders

A proper explanation of this is given on p215-6 of Trindade’s (et al) book.

5.2.4 The nature of the defendant’s acts

In the Penfolds case, Dixon J stated: ‘The essence of conversion is in dealing with a chattel in a manner repugnant to the [actual possession] or the immediate right of possession of the person who has property or special property in the chattel.’

Page | 37

Dealings that amount to conversion:o Disposing of goods: ‘If a defendant disposes of the plaintiff’s goods by sale and delivery,

there is a dealing in the goods sufficient to constitute conversion.’ (Trindade) (Foster v Franklin [1924] VLR 269)

o Taking possession of goods without lawful justificationo Abusing possession of goods – McKenna & Armistead Pty Ltd v Excavations Pty Ltd

[1957] 57 SR (NSW) 515: ‘It is clear that a bailor is entitled to sue a bailee for damage resulting from any use by the bailee of the goods or any dealing with the goods going outside or beyond the terms upon which he has become bailee. An unauthorised departure from the terms of the bailment renders the bailee liable for damage which results from it.’

o Transferring of possession – Kitano v The Commonwealth (1973) 129 CLR 151o Withholding possession – ‘In the absence of any lawfully asserted right, an intention to

withhold or detain goods in defiance of the person who is entitled to possession of them is a conversion of those goods – a conversion by detention.’ (Trindade) (Upton v TVW Enterprises Ltd (1985) ATPR 40-611

o Denial of plaintiff’s right – Motor Dealers Credit Corporation Ltd v Overland (Sydney) Ltd (1931) 31 SR (NSW) 516

o Statutory provisions for uncollected and unsolicited goods.

5.3 Detinue

‘The tort of detinue is committed when a defendant who is, or has been, in possession of goods detains them after a proper demand has been made for their returned by the person who has an immediate right to possession of the goods.’ (Trindade)

In order to succeed, the plaintiff must have an immediate right to possession. An essential element of the tort is ‘detention’: therefore the action indetinue is not for damages to

the chattel, but for its detention. o Intentional conduct relates to the refusal to return the chattel when a proper demand is

made. Deliberate refusal is the gist of the action:

o Was there a proper demand?o Has there been a refusal to return the goods?

5.4 Defences

5.4.1 Necessity

If this defence is raised, the defendant must prove that his/her action was reasonably necessary to prevent the plaintiff’s property from an imminent risk of harm. (Same cases as defence of necessity in intentional torts to person).

Page | 38

5.4.2 Mistake

Mistake is not a defence to trespass to goods.

5.4.3 Ex Turpi Causa

This is the defence that the plaintiff was involved in an illegal act when the tort complained of occurred, and therefore the action should fail. It will apply if the defendant can prove that the tort complained of was an essential part of the illegal activity. (Jackson v Harrison (1978) 138 CLR 438)

5.4.4 Recaption of Chattels

This defence of reception is a common law right that allows a person who has been deprived of possession of goods to recover them immediately and provides immunity for the defendant.

The retaking of goods must be in a reasonable manner. Reasonableness varies and depends on the case, but generally the courts will require that the force used to retake the goods must not have been more than what was reasonably necessary to retake the good.

5.4.5 Distress

‘The common law right of distress is nothing more than the right of a person, in certain circumstances, to seize and detain the goods of another person in order to force the other to perform some obligation or to punish the other for the non-performance of an obligation.’ (Trindade)

5.4.6 Inevitable Accident

This defence almost speaks for itself – once fault has been proved on the part of the defendant, he/she can escape liability by showing that the act was done without intention or negligence.

5.4.7 Consent

If the defendant proves that the plaintiff consented to the conduct, then the action will not succeed.

5.4.8 Lawful Authority

At common law, there are many rights/powers that a police officer has in relation to the seizure and detention of goods.

Also, there are other rights/powers that are vested in officials which are laid out by statute.

5.5 Penfolds Case

Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204

- The brother of the respondent purchased two bottles of Penfolds wine, and of course drank them.

Page | 39

- 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 Penfolds wines and further, that they always remained the property of Penfolds.

- Despite this, the empty bottles were received by the brother and he filled them with his own wine, which he then sold to patrons of a restaurant.

Judgments

- Latham J – dissenting- p217 re bailment:

o The bailor is the owner of the good, and gives possession to the bailee – therefore the bailee is the one in lawful possession of the goods

o Thus Penfolds was the owner and bailor of the bottleso At the moment the brother gave the bottles to the defendant, the bailment relationship

came to an endo Once this ended, Penfolds had an immediate right to ownershipo Therefore when the defendant filled the bottles, he committed a trespass to chattels

- p218-219 re conversion:o In reselling wine in the plaintiff’s bottles, the defendant was acting as if we was the true

owner of the bottles- p220:

o Common law damages were not appropriate (he asked the question “how can you seek common law damages for lots of bottles?”)

o Injunction was most suitable- Starke J – majority- P221 re conversion:

o There was substantial evidence supporting conversion of the appellant’s two bottles, however there was no proof that the system of conversion was systematic (therefore an injunction was not appropriate)

o His Honour said that Penfolds may be compensated with whatever remedies the common law would allow (i.e. damages)

- Dixon J – majority- P224 re trespass:

o ‘It cannot be trespass because there is, on the part of the respondent, no infringement upon the possession of anyone …’

o His honour said that trespass is a wrong to possession and that the defendant never committed a wrong to possession:

When he filled his brother’s bottles, he was in possession as the brother ‘delivered possession’

o As the bottle is traded between many hands, the bailment remains acceptable- p229 re conversion:

o ‘Conversion appears to me to be equally out of the question …’

Page | 40

o Conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has property of the chattel

o The defendant’s supplying of wine was no deprival or impairment of property of the bottleso The re-delivery was not a conversion, the purpose was merely to return/restore the bottle to

the person (if the bottle had been withheld, then there was possibly conversion)o If the wine was sold to the inspector then there was possible conversion (but the transaction

was not a wrong to property as the defendant was giving it over to the official)- p232:

o Thus no trespass or conversion (no grounds for injunction or other equitable relief- McTiernan J – majority- p234 re conversion:

o Conversion was committed to the 2 bottles the officer took away – using the bottles as the defendant did was inconsistent with the right of property (the defendant was using the bottles as receptacles for wine in his business)

o Note on p232: ‘[t]he only wrong … is conversion …’- p236:

o Thus it is not the case for an injunction and may claim damages in common law- Williams J – dissenting- P240 re injunction:

o An injunction is necessary as the slow return of bottles meant a loss of business for the plaintiff (in common law, a separate cause of action was needed per bottle – inappropriate)

- p241 re bailment:o A breach of bailment occurred when the brother asked to refill the bottles – this breach led

to the plaintiff’s immediate right to possessiono However there was no trespass: the defendant did not take possession from the brother as

the bottles were delivered- P 243 re conversion:

o The bottles were meant to be filled: by the defendant filling them, the plaintiff was unable to fill them – therefore conversion occurred (and an injunction was appropriate)

Page | 41

6. Introduction to the Law of Negligence and Duty of Care

6.1 Introduction to Negligence

Negligence has its origins back when the common law was first developing: the first “real” instances of negligence were incidents such as ship collisions and cases where pedestrians were run over.

There are four elements of negligence which must all be fulfilled if the action is to succeed:o The defendant must have owed a duty of care to the plaintiff (duty stage - law);o The defendant must have breached the duty imposed (breach stage – law and fact);o There must be causation in fact (causation stage - fact);o The act must not have been too remote (remoteness stage - law).

This topic covers the duty stage; in particular the Donoghue v Stevenson case.

6.2 Duty of Care – Donoghue v Stevenson [1932] AC 562

Donoghue v Stevenson [1932] AC 562

- This is case happened in Scotland.- The plaintiff went to a café, and the plaintiff’s friend bought ginger beers and ice cream- The plaintiff realised there was a snail in the bottle, and subsequently fell ill, and sued the

manufacturer of the ginger beer, and the case went to the House of Lords.- For Atkin L, the sole question was whether there was a duty of case: “did the manufacturer owe a

duty of care to the drinkers?”- Therefore the issue was whether a duty of care (in negligence) could be owed outside of a contract,

or whether there had to be a contract. - The dissenting judges said that there was no contract between the parties, so therefore there was no

duty of care owed (they concluded that no duty of care could arise outside of a contract).- Tomlin L stated that it would be outrageous for these people to recover from a defective

manufacturer – his Honour said it would “open the floodgates”. - Atkin L stated that there must be some common element in past decisions even though this was a

novel case. His Honour also stated that there was a danger in stating the law too widely. - Atkin L’s “neighbour principle”: ‘Who, then, in law is my neighbour? The answer seems to be -

persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.’ (at p580)

- This is a general perception (principle) of duty of care. - His Honour is saying that even though this is a novel case, there is a general conception, and the duty

of care will be determined if the extension of this duty falls within the (neighbour) principle.

Page | 42

- His Honour’s approach is an example of inductive reasoning – his Honour has looked at previous decisions and through these decisions, the principle is derived.

- If the extension goes beyond the principle, then the action cannot succeed. - Atkin L’s ratio is found on p599: ‘a manufacturer of products, which he sells in such a form as to

show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

- Thankerton L’s ratio on p603 refers to drink rather than products.- MacMillan L did not refer to the neighbour principle: his ratio at the bottom of p609 refers to two

“rival” principles:o No-one other than a party to a contract can complain of a breach of that contract; ando A party can bring an action for negligence outside of a contract.

- His Honour referred to previous decisions, and his Honour’s ratio at p619-20 refers to food and drink. - The ratio of the case is Atkin L’s ratio (the ruling in the case was applied: it was no wider that was

necessary to settle the dispute of law put forward by the parties in the caseo Atkin L refers a lot to McPherson v Buick Motor Co (1916) NYCA – this is because the law

of the United States was a lot more developed than the law of England at the time.

6.3 Reasonable Foreseeability

Essentially the test is the question “is it reasonably foreseeable that damage could have been caused to a class of persons of which the defendant was a member?

Chapman v Herse (1961) 106 CLR 112 – Precise series of events need not be foreseeable

- This accident occurred on a day with poor visibility.- A man, Mr Emery, was driving a car and approached a T-junction, signaling to turn right.- Emery’s care was hit from behind (the back corner) by a car driven by Mr Chapman. - Chapman was thrown out of his car and lay unconscious on the road whilst his car went onto the golf

course. Emery’s car went off the road.- Dr Cherry was leaving the golf course and saw Chapman, so Cherry went and attended to him. - A car driven by Mr Hearse hit Cherry, who then died. - Cherry’s estate sued Hearse as defendant (for damages as a result of his death). - Hearse said that none of this would have happened if not for Chapman’s negligent driving, so Hearse

sued Chapman as a third party to join him on the case. - Hearse had been driving negligently, and was liable. - The South Australian court said that because of Chapman’s negligent driving, he was liable for 25% of

the damages. - The case went to the High Court on Appeal where Chapman raised two issues:

o Relating to the duty of care – Chapman would only be liable if he was negligent with respect to Cherry. If he owed no duty of care to Cherry he could not be pulled in.

Page | 43

o Chapman said that for a duty of care to be owed, the precise series of events leading to the injury must be reasonably foreseeable.

- The High Court said that the series of events does not have to be reasonably foreseeable, but something of the general character or nature of the event must be reasonably foreseen.

o Novus Actus Interveniens: an intervening event. An issue that was brought up was whether some intervening even breaks the chain of causation between breach of duty and damage suffered.

o Chapman’s argument was that a wrongful intervening event is not reasonably foreseeable. The intervening event was the negligent driving of Hearse, and therefore did not break the series of events.

- The High Court rejected this: it said that a wrongful intervening event is reasonably foreseeable, and therefore does not break the chain of causation.

Palsgraf v Long Island Railroad Co (1928) 248 NY 339 – The unforeseeable plaintiff

- This is a New York Court of Appeal case with seven judges sitting. There was a 4-3 majority: Cardozo CJ (majority); Andrews J (dissent – therefore whatever his Honours says is not the law of negligence, or ever was)

- The plainfitff, Palsgraf, was at a railway station in New York with two daughters waiting to catch a train to Rhode Island.

- Another train (not the one she was after) entered the crowded platform, and two men ran to get on the train.

- The first one got in with no trouble, but the train had started moving when the second man tried to enter. He was carrying a package, and the guards helped him up onto the train.

- The guard knocked the package which contained fireworks, and they exploded.- The allegation was that because of the fireworks, weighing scales were knocked over, injuring the

plaintiff.- The issue was the question: “was she a foreseeable plaintiff?” The majority said that she was not, and

so the action failed.- Per Cardozo J at p99: ‘Negligence is not actionable unless it involves the invasion of a legally

protected interest, the violation of a right … (at p106) If there was any wrong committed, it was to the second man, not to Palsgraf. What the plaintiff must show is a wrong to herself, that is a violation of her own right to bodily security, and not merely a wrong to someone else.’

- Further down: ‘The risk reasonably to be perceived defines the duty to be obeyed, and the risk imports relation. It is a risk to another within the range of apprehension … Negligence, like risk, is thus a term of relation.’

- Therefore, for a plaintiff to be a foreseeable plaintiff, that person must fall within the reasonable range of apprehended risk. In the context, Palsgraf was outside a reasonable range of apprehended risk of injury. The guard was within a reasonable range, but not Palsgraf.

Page | 44

6.4 Proximity – Sullivan v Moody (2001) 107 CLR 562

There is no doubt that proximity has been rejected by the High Court. In Sullivan v Moody, five members of the High Court, in a unanimous joint judgment, rejected it.

6.5 Introduction to the Civil Liability Act 2003 (Qld)

The act received assent on 9 April 2003, and was backdated to 2 December 2002. Section 5: exclusions (eg workplace/dust-related injuries) Section 7: does not create or confer any cause of action, therefore the cause of action is created by

common law. s7 (5): the act is not a codification of the law. As seen in s7, the act does not start at the duty stage: this is left to the common law.

6.6 Examples of Duties of Care

6.6.1 Duty of care owed by employer to employee - Czatyrko v Edith Cowan University (2005) 214 ALR 349

This case involved a garbage collector who, when returning a bin to the truck for unloading of waste, was struck by a car. The content of the duty was: “what should the university have done?”

6.6.2 Duty of care owed by an occupier to an entrant - Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234

This case involved a contractor who delivered bread to Woolworths in Stanthorpe. She injured herself moving bins that blocked an entrance. See ¶12-14 of the case for the duty owed by an occupier as an element.

6.6.3 Duty of care owed to other road users - Manley v Alexander (2005) 223 ALR 228

This case involved a tow truck driver who did not see an intoxicated person lying in the middle of the road because he was concentrating on a person on the side of the road who he thought was going to run onto the road. In a spit (3-2) decision, the truck driver was held liable.

Page | 45

7. Breach of Duty of Care

7.1 The Forseeability Test

7.1.1 Common Law – Wyong Shire Council v Shirt (1979) 146 CLR 40

- This case happened in a lake in New South Wales- The lake was shallow and was used for, among other purposes, water-skiing- There were signs erect where the deep water was located- The plaintiff was waterskiing and fell off where the water was 3.5ft deep, and he injured himself- The plaintiff sued for negligence because it was unclear where the deep water was located- The council owed a duty of care to this person and was liable because it was found to have breached

this duty- This case provides the common law test for foreseeability at the breach stage:

o Mason J: ‘A risk which is not far-fetched or fanciful is real and therefore foreseeable.’ o This is a very wide test which was changed by the CLA

- At p47, Mason J expressed: ‘In deciding whether there has been a breach of duty of care, the tribunal of fact must first ask itself whether a reasonable person in the defendant’s position would have foreseen that the conduct involved risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable person would do by way of response to that risk.’

- In essence, his honour is asking two questions:o “Would a reasonable person have foreseen that the conduct that they were undertaking

involved a risk of injury?”o If yes then, “What would a reasonable person (shire council) do in response to this risk?

If a reasonable response was to do nothing, then there was no breach If a reasonable response was to do something, then the duty had been breached

7.1.2 Foreseeability and the Civil Liability Act 2003 (Qld)

9 General principles(1) A person does not breach a duty 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 reasonably to have known); and(b) the risk was not insignificant; and(c) in the circumstances, a reasonable person in the position

of the person would have taken the precautions.

Differences between the Common Law and CLA at the breach stage

Page | 46

Section 9 (1) (b) of the CLA provides that the risk ‘was not insignificant’. This changes the common law by wiping out the ‘far fetched and fanciful’ part from Wyong Shire Council v Shirt.

It is more difficult for a plaintiff to prove that there has been a breach under the new test: it makes it more difficult to prove that the risk was reasonably foreseeable.

s9 (1) (c) is a codification of the Shirt principle – that a reasonable person would have taken precautions.

Now you look at section 9 of the CLA to determine if there was a breach of duty, not at Shirt.

7.2 Standard of Care

7.2.1 Common Law

Neindorf v Junkovic (2005) ALR 631

- This case involved a garage sale in South Australia- This issue was what standard of care was owed by an occupier to an entrant- There was a crack in the concrete pathway which led up to the house, and the plaintiff tripped over it

and broke her ankle- She sued the defendant for negligence and it went to the High Court- There was no dispute that the defendant owed the plaintiff a duty but the issue was whether there

had been a breach- The majority concluded that there had been no breach- The court considered the standard of care required by an occupier, and concluded that many

driveways in Australia have cracks in the concrete, therefore it was reasonable for the occupier not to do anything about it

- However, Kirby J in dissent said that because it was a commercial enterprise (garage sale) the occupier owed a higher duty of care

- The majority overruled this saying that there was no principle of law involved as it was a matter of fact

McHale v Watson (1966) 115 CLR 199

- The sole issue in this case was the standard of care that Watson owed to McHale – “did Barry Watson owe the standard of an adult or a 12-year old boy to Susan McHale?”

- The court concluded that he owed the standard of care of a 12-year old boy, and a reasonable response would have been to throw the dart at the post.

- In determining standard of care, a defendant cannot use unsoundness of mind, i.e. it does not lower the standard of care.

7.2.2 Civil Liability Act

Section 9 (c) of the CLA deals with the standard of care: a person does not breach a duty if ‘in the circumstances, a reasonable person in the position of the person would have taken the precautions.’

Page | 47

The NSW case of Drinkwater v Howarth [2006] NSWCA 222 provides a good application of the NSW CLA, which has a very similar section (5) to Queensland’s s9.

In that case, the trial judge’s used the Shirt test to determine breach, whereas the majority of the NSW court of appeal said that the CLA must be used.

7.3 Breach of Duty of Care

7.3.1 Common Law

Introduction

- The test from Shirt: ‘How would a reasonable person in the position of the defendant have acted having regard to the magnitude of the risk, the degree of probability of its occurrence and the expense, difficulty and inconvenience of reducing or avoiding the risk and other relevant countervailing considerations?

Probability of Risk – Bolton v Stone [1951] 1 All ER 1078

- The plaintiff (Stone) was standing on the road outside a cricket ground.- A cricketer hit a six and hit Ms Stone, who subsequently sued the cricket ground.- The issue of the case was: “was the probability of harm such that the cricket ground breached its

duty?”- The court said that the test to be applied is whether the risk of damage to a person was so small that

a reasonable person in the position o the defendant, considering the matter from a point of safety would have taken steps to prevent the danger. This is not a question of law; it is a question of fact.

- The court concluded that the incidence of someone being hit by a six was very rare, therefore the breach could be ignored.

Magnitude of Gravity of the Risk – Paris v Stepney Borough Council [1951] AC 367

- The plaintiff lost sight in one eye during the war.- When working as a mechanic, he chipped bit of metal and was blinded in his good eye, and sued his

employer for negligence.- The court concluded that because they were aware he only had sight in one eye, he did not wear

protective eyewear.- Therefore, the magnitude of the risk was large: the risk was total blindness, yet the employer still did

nothing.

7.3.2 CLA

Section 9 – General Principles

Page | 48

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things) -

(a) the probability that the harm would occur if care were not taken;(b) the likely seriousness of the harm;(c) the burden of taking precautions to avoid the risk of harm;(d)the social utility of the activity that creates the risk of harm.

Section 10 of the Queensland CLA also provides other principles for determining breach, such as some points on the burden of taking precautions and avoidance.

7.4 Res Ipsa Loquitur

Res Ipsa Loquitur is a latin term which means “the thing (or matter) speaks for itself.” ‘The primary purpose of this principle is, in describing a set of circumstances, which if proved, would

make it improper for a trial judge to withdraw the case from the jury. When such circumstances are established there is enough evidence from which a reasonable jury may, not necessarily must, draw an inference of negligence on the part of the defendant. This is because res ipsa loquitur is a rule of evidence and not a rule of law.’ (Hinchy, Learning Guide p42)

The way to apply this test is as follows:o If the thing (causing the accident) be shown to be under the management or control of

the defendant; and o The accident is such as in the ordinary course of things does not happen if those who

have management use proper care; then o It may be inferred that the accident was caused by the defendant’s negligence with the

result that a prima facie case is made out.

Page | 49

8. Causation and Remoteness

8.1 Factual Causation at Common Law

8.1.1 Introduction

‘Although the defendant may have breached the duty of care owed to the plaintiff, the question arises as to whether the defendant has, as an issue of fact, caused the plaintiff’s injury or loss … causation as an issue of fact is concerned with determining from the facts of the case that the actions of the defendant caused the plaintiff’s harm.’ (Hinchy, Learning Guide p44)

8.1.2 Role of the Tribunal of Fact

‘If there is a jury at the trial, causation is an issue of fact for the jury but with the overriding power of the trial judge to withdraw the issue from the jury if there is no evidence upon which a jury could reasonably find a causal connection between the defendant’s breach of duty and the injury to the plaintiff. The plaintiff therefore bears the onus of proof on the balance of probabilities to prove the causal connection. Causation is not a simple area that can be determined by one test or fact.’ (Hinchy, Learning Guide p44)

8.1.3 Tests for causation

The “but-for” test – Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 424

This test involves the question: “But for the defendant’s breach, would the plaintiff have suffered damage?

o If no – the breach caused the damageo If yes – the plaintiff would have suffered damage notwithstanding the breach

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 424

- On New Years’ Eve 1965, the plaintiff (a night watchman) had a few drinks, but was not drunk- At 5am on New Years’ Day, the plaintiff drank tea with two other night watchmen- 20 minutes later, they were all vomiting, and continued vomiting until 8am- They all went to the local hospital, saw a nurse, and explained the vomiting post-tea- The nurse rang the doctor on duty, who said he was vomiting, and that they should see their own

doctor (the doctor on duty thought they were drunk from New Years’)- They all got back to the college, but the plaintiff was not well- At midday the plaintiff was taken back to the hospital and given a bed, but it was too late and he died- Questions:

o Did the doctor owe a duty of care to the plaintiff? – Yes

Page | 50

o Did the doctor breach his duty of care when he turned the plaintiff away? – Yes- The main issue was “did the breach cause the death?”- At the time, medical evidence showed that even if the doctor had diagnosed and treated the plaintiff,

he would have died anyway- The court concluded that the breach did not cause the plaintiff’s death

o But for the breach, would the plaintiff have died? – Yes, therefore the breach did not cause damage

The Current Position – March v Stramare (1991) 171 CLR 506

Section 11 (2) is a reference to March v Stramare (according to Hinchy)- In this case, the plaintiff was injured when driving and collided with the back of a stationary truck- It was early morning in Adelaide on a six-lane (three each way) road- The defendant owned a truck which he used to transport goods to a wholesale fruit shop:

o The practice was to load/unload the truck when it was parked on the roado When parked, the driver put on his hazard lights

- Whilst intoxicated, the plaintiff hit the truck, was injured, and sued the owner of the business and the driver

- At trial, the plaintiff won, but his damages were reduced by 70% as a result of contributory negligence (because of the intoxication)

- On appeal to the South Australian Court of Appeal, the court found that the real cause was the plaintiff’s intoxication

- The case then went on appeal to the High Court: o 5 judges sat, with Mason CJ, Toohey and Gaudron JJ in a majority, with McHugh J

providing a different approach- Mason CJ (at p515) refers to previous decisions and raises “common sense” – however this is

contentious- His Honour analyses the “but-for” test: his Honour says that there are situations where the test does

not work – it could be that if you apply it, no-one is liable, eg Novus Actus Interveniens- ‘As a matter of both logic and common sense, it makes no sense to regard the negligence of the

plaintiff or a third party as a superseding cause or novus actus interveniens when the defendant's wrongful conduct has generated the very risk of injury resulting from the negligence of the plaintiff or a third party and that injury occurs in the ordinary course of things. In such a situation, the defendant's negligence satisfies the "but for" test and is properly to be regarded as a cause of the consequence because there is no reason in common sense, logic or policy for refusing to so regard it.’ (Mason CJ at p518-9)

- In this situation, the plaintiff was intoxicated:o There was contributory negligence, but the argument was that contributory negligence

is a superseding event is not the approach to be taken:o Instead, ask “did the defendant, in doing what he/she did (i.e. parking the truck in the

middle of the road), generate the very risk of injury to the plaintiff, and would such an injury occur in the ordinary course of the event?

Page | 51

- In this case, in parking the truck the way he did, the defendant generated the risk: this was the causation – damages were reduced because the plaintiff was intoxicated.

8.1.4 Factual causation under the CLA

11 General principles

(1) A decision that a breach of duty caused particular harm comprises the following elements—

(a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation);

(b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).

(2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty—being a breach of duty that is established but which can not beestablished as satisfying subsection (1)(a)—should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

(3) If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach—

(a) the matter is to be decided 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 thestatement is against his or her interest.

(4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.

12 Onus of proof

In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Page | 52

8.2 Remoteness

8.2.1 Introduction

‘This requires the plaintiff to establish that the injury she/he suffered was not too remote – that is, was the injury suffered one which could have reasonably been foreseen as arising as a consequence of the defendant’s conduct? The basis of remoteness is to limit the injuries for which a defendant can be found liable - would it be unreasonable for the defendant to be held liable for all the injuries that the plaintiff suffers when a reasonable person could not foresee such injuries occurring? Remoteness is sometimes referred to as “legal causation” (in contrast to factual causation). The important issue with remoteness at common law is that the kind of injury or loss that occurs must be reasonably foreseeable.’ (Hinchy, Learning Guide p45)

8.2.2 Reasonable foreseeability as the test of remoteness – Overseas Tankship (UK) Pty Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388

- The ship owned by the plaintiff (Overseas Tankship) was moored in a dock, and was being repaired by the defendant company’s deckhands

- The deckhands were doing something with oil on the ship, and somehow this oil was discharged into the water

- The oil ignited because of a flame which was not the fault of the deckhands- The court held that it was far too remote to blame the deckhands because the flashpoint of oil was

much higher than the temperature around there- Therefore it was not reasonably foreseeable that the oil (on the water) would ignite- This is the test for reasonable foreseeability at the remoteness stage: The kind or type of damage

that occurs must be the kind of type of damage which is reasonably foreseeable

8.2.3 Foreseeability of the type or kind of damage – Hughes v Lord Advocate [1963] AC 837; Tremain v Pike [1969] 3 All ER 1303

Hughes v Lord Advocate [1963] AC 837

- The plaintiff was an 8-year old boy when he was severely burned in 1958- Post office employees were working on underground cables 400m away from a residential area- The workers left for a break; they left a tent with four paraffin lamps inside – the idea was that no-

one would approach a glowing tent- The plaintiff and a friend found a rope and tied a lamp to the end, which they lowered into the

manhole- The plaintiff went down the ladder, and as he was coming back up, the lamp dropped and there was

an explosion, and the plaintiff fell into the manhole and was severely burned- The defence raised by the Crown was that the incident was too remote to be foreseeable: “how

could it have been seen that a boy would have been severely burned?” – this was rejected

Page | 53

- Ratio: “If the kind of damage which results is reasonably foreseeable, then the extent of damage is irrelevant.”

- Therefore –the foreseeable damage of a child playing with a lamp was the child burning themselves: once this is satisfied, the extent of the burns was irrelevant

Tremain v Pike [1969] 3 All ER 1303

- The plaintiff worked on a farm where he moved hay in barns, and it was alleged there was a plague of rats

- The plaintiff contracted Weil’s Disease- In dealing with the hay (which contained rat urine, apparently) he contracted disease- Expert evidence was given to the court: the normal way of contracting disease is through eating

contaminated food- The plaintiff failed as the judge said that evidence suggested that a person could not contract a

disease via the handling of hay- It was not reasonably foreseeable, i.e. it was too remote

8.2.4 The Egg Shell Skull (or thin skull) rule - Smith v Leech Brain & Co Ltd [1962] 2 QB 405

If a particular defendant causes injury to a particular plaintiff and the injury is made worse because the plaintiff had another physical injury, the defendant cannot say it is too remote because of a medical condition (for example).

You must take the plaintiff as you found them.

Smith v Leech Brain & Co Ltd [1962] 2 QB 405

- The plaintiff worked in a factory as a galvaniser, which involved the lowering of objects into molten metal in order to galvanise them

- He was protected by a shield- One day the plaintiff looked around the shield and was splashed on the lip by molten metal- It set off a malignant cancer and the plaintiff died three years later- The employee had a predisposition to this type of cancer, therefore the defendant said that the burn

was reasonably foreseeable, not the cancer- The court held that the predisposition was irrelevant – not too remote- However the court recognised the predisposition so there was a substantial reduction in damages

8.2.5 Remoteness and the CLA

Section 11 (1) (b) reflects the common law: ‘it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused’.

Section 11 (4) – the judge would have wider discretion than under the common law in determining if it was too remote: ‘[f]or the purpose of deciding the scope of liability, the court is to consider (among

Page | 54

other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.’

o s11 (4) does not change the common law remoteness, and judges may still refer to common law cases

Page | 55

9. Proportionate Liability and Contribution among Tortfeasors

9.1 Introduction

A joint tortfeasor is someone who is jointly liable for the same cause of action. Several tortfeasors refers to various tortfeasors who have no connection with each other apart from

causing damage to the plaintiff, i.e. there is no connection to the same cause of action. Several concurrent tortfeasors: where the tortfeasors have no connection, but the damage happens

at the same time; eg a person injured in a motor vehicle accident by caused by the negligent driving of both the driver of the car the person (plaintiff) was in and another car.

‘Where the conduct of the joint or several tortfeasors results in the same damage to the plaintiff, the tortfeasors are said to be concurrent tortfeasors.’ (Trindade p799)

Brinsmead v Harrison (has been changed by statute) was the common law rule: a judgment against one tortfeasor who is held jointly liable with others prevents any further action against the others for the same cause of action (for example, if a plaintiff did not recover damages from one defendant they may move to another). If a plaintiff released one of the tortfeasors from liability, then that prevented the plaintiff from going after any of the other tortfeasors.

s6 (a) of the Law Reform Act 1995 (Qld) abolished the action barring principle:

Where damage is suffered by any person as a result of a tort(whether a crime or not)—

(a)judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage

9.2 Joint and Several Concurrent Tortfeasors – Thomson v Australian Capital Television Pty Ltd (1996) 186 CLR 574

- This case involved the airing of the “Today” show produced by Channel 9 in Queensland- Channel 9 had a licence agreement with Channel 7 so that Ch 7 could show the program in the ACT- On the show, Thomson’s daughter claimed that she had been sexually assaulted by her father- Channel 9 obtained a release for $50,000 for indemnity, and Channel 7 showed the program- Thomson commenced an action for defamation- The issues were:

o Were Channels 9 and 7 joint tortfeasors?o Did the release of Channel 9 cover channel 7?o Innocent dissemination? (don’t worry)

Page | 56

- It was held that (1) the stations were joint tortfeasors as the publication was a result of them acting in concert to achieve a common end

- (2) The common law rule was that a cause of action against joint tortfeasors is one and indivisible was abolished by s 11 (2) of the Law Reform(Miscellaneous Provisions) Act 1995 (ACT) – so the release of one joint tortfeasor did not release the other joint tortfeasors

- (3) In the circumstances of a live current affairs programme which carried a high risk of defamatory statements being made, and where the broadcaster had the ability to supervise and control the material televised but chose not to, the broadcaster was a subordinate disseminator and the publication was not innocently disseminated.

- The appeal was therefore allowed and the matter was remitted to the Federal Full Court for assessment of damages

9.3 Solidary and Proportionate Liability

Solidary liability: if there are two wrongdoers and one of them is solvent and the other is insolvent, the plaintiff is entitled to recover the full amount of the damages from the solvent wrongdoer.

Proportionate liability: liability for the harm caused (jointly or concurrently) by the multiple wrongdoers is divided (or apportioned) between them according to their respective shares of responsibility

9.4 Contribution between tortfeasors

This is provided for under s6 (c) of the Law Reform Act 1995 (Qld):

Where damage is suffered by any person as a result of a tort (whether a crime or not)—

(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.

This abolishes the previous common law position, as the common law did not allow for contribution (eg Chapman v Herse – Herse brought Chapman in for contribution)

9.4.1 The right to contribution – Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213; Nilon v Bezzina [1988] 2 Qd R 420

Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213

- Per Barwick CJ at p 219: ‘Section 5 (1) (c) provides that a tortfeasor who has come under an enforceable obligation to pay money for the damage caused by his tortious act may successfully

Page | 57

recover contribution from another tortfeasor who has also come under an obligation to pay money in respect of the same damage and he may also recover contribution from any other tortfeasor who, not having been sued by the injured party, had he been sued, would have been found to have caused or contributed to the same damage by a tortious act.’

Nilon v Bezzina [1988] 2 Qd R 420

- The plaintiff was injured in a motor vehicle accident as a consequence of the negligence of another driver

- Several years later, the plaintiff was injured again in another vehicle accident- Both tortfeasors were sued by Nilon- The court had to determine the contribution of the two torfeasors- Per McPherson J at p424: ‘It is sufficient of the plaintiff to show on the balance of probabilities that

the breach of duty contributed materially to the injury complained of. Once that onus is discharged there is no compelling reason of policy, in cases such as this, why a plaintiff should be obliged to go further and attempt to disentangle and identify with complete precision the relative contributions of each defendant to his accumulated injury or loss …”

9.4.2 Assessment of contribution

s7 of the Law Reform Act provides for this (following on from s6 (c))

In any proceedings for contribution under this division the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

9.5 Aggravation of Previous Tortious Injury – State Government Insurance Commission v Oakley

A nurse was injured in a motorbike accident, and a few years later her back was injured again whilst she was working

She sued the SGIC (WA) and the motor insurer was involved also The plaintiff said that they should be considered as separated The added damage was treated as an extension of the first incident (if the injury was

aggravated) per Malcolm CJ (full court of Supreme Court of WA): ‘In my opinion, where the negligence of a defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows: (1) Where the further injury results from a subsequent

Page | 58

accident which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence; (2) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; and (3) Where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained includes no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.

Page | 59

10. Defences to Negligence

10.1 Introduction

There are two main defences to negligenceo Volenti non fit injuriao Contributory negligence

10.2 Volenti Non Fit Injuria – Voluntary Assumption of Risk

10.2.1 Common law

Volenti differs under common law and statuteo Under common law volenti is a total defence (that is, the defendant got off completely)

To imply that the plaintiff voluntarily assumed the risk, it must be proved that:1. There was full knowledge and appreciation of the risk being run and its extent2. And that the risk was accepted freely

Leyden v Caboolture Shire Council

- Note: this case is pre-CLA- 15 year old Plaintiff went to a council operated BMX bike-track- In attempting a jump, the plaintiff was seriously injured- The jump had been modified, but not by the council- As a dirt track, witnesses said that it was often modified by persons outside of council control, and

that the council would come check on a weekly basis, and revert any modified jumps - The plaintiff knew the jump had been modified - Trial judge found that while council owed a duty to ensure safety for other users of council-run areas,

the plaintiff was in a different situation o He did not rely on the Council to provide a reasonably safe jump, as he knew the state

of the jump after modification o He also knew the effect of the modification was to make the jump more hazardous

- Thus, council could use defence of volenti - Upon appeal, court also allowed council to plead volenti - However, there was contention over the boy’s age

10.2.2 Civil Liability Act 2003 (Qld)

s13 defines “obvious risk” s13(1) a “person who suffers harm” refers to the plaintiff

o however, limits to personal injury

Page | 60

s13(3) an “obvious risk” can still be of low probabilityo e.g. a parachute not opening

s13(4) an “obvious risk” may not be physically observableo e.g. an underwater current

s13(5) No action for failure, unless the failure itself is an obvious risko e.g. a go-kart may be in good condition, but if it is involved in an accident because of an

hair-line crack in the underside, it is not actionable as it is not an obvious risk s14 reverses the common law onus of proof on volenti

o s14(1) states that if volenti is raised by the defendant, and the risk was an obvious risk (as according to s13, then the onus is for the plaintiff to prove, on the balance of probabilities, that they were not aware

s16 says that defendants are not liable for materialisation of inherent risks o s16(2) An inherent risk is a risk of something occurring that can not be avoided by the

exercise of reasonable care and skill While division 3 deals with “obvious risk”, division 4 follows through with Dangerous Recreational

Activities S18 defines dangerous recreational activity as an activity engaged in for enjoyment, relaxation or

leisure that involves a significant degree of risk of physical harm to a person S19(1) Dangerous recreational activity If using division 4 as a defence, defendant must prove:

o That the plaintiff was engaged in dangerous recreational activityo There was a materialisation of obvious risk

NOTE: an “obvious risk” may not be a “significant risk”

Fallas v Mourlas

- After an evening of drinking, the party was spot-lighting for kangaroos- Plaintiff agreed to hold the spotlight, while defendant drove- At one point, defendant left the vehicle with a handgun, but returned- Before entering the car, the plaintiff told the defendant not to bring the loaded gun into the car - In attempting to disarm the gun, the defendant accidentally discharged a shot, which hit the

plaintiff in the leg- Trial judge found for the plaintiff, concluding that the defendant was guilty of negligence and

that s5L (equivalent of QLD s19(1)) did not assist defendant- On appeal, the defendant once again claimed no liability because plaintiff was involved in

dangerous recreational activity- First issue to the NSWCA was: “did the circumstances constitute a dangerous recreational

activity?”o 2 judges in majority (Ipp and Tobias) held it was a DRAo Trial judge said that as plaintiff was sitting in the car, not participating in the shooting, he

was not participating in DRAo According to Ipp JA (and Tobias J agreeing), plaintiff involved in DRA as the activity “carried

with it a significant risk of physical harm (i.e. the use of firearms in the hands of amateurs) and, therefore, was a dangerous recreational activity within the meaning of s 5K.”

o According to Basten J, not a DRA because: The risk was not significant because the results of iot eventuating were not

catastrophic

Page | 61

Statistically, there was a low probability of being injured by a firearm, therefore, it is not “significant”

The defendant had not run the case that they were inexperienced- Second issue for the NSWCA was: “was the risk that materialised an “obvious risk”?”

o 2 judges in majority (Tobias and Basten) held the risk was an obvious risko According to Ipp JA, as the defendant had reassured the plaintiff continually that the

gun was not loaded, and that it was “safe”, meant that there was no obvious risk that the plaintiff could be shot- exemplified by the plaintiff not leaving the vehicle

o According to Tobias J, the plaintiff found the defendant unreliable in his assurances that the gun was not loaded, and therefore sought multiple re-assurances- this only indicates that any reasonable person would have sought continual re-assurance if they had recognised the risk

o According to Basten J, “The fact that the plaintiff accepted that the risk of accidental injury existed, may mean that such a risk, very broadly defined, was “obvious”.”

- Therefore, defendant remained liable as the majority found that both requirements were not satisfied

10.3 Contributory Negligence

10.3.1 Common law

Like volenti, there is a common law form of contributory negligence and a contributory negligence under the Civil Liability Act

In broad terms, considered to be the failure of a plaintiff to take reasonable care to protect themselves from suffering loss

In Common Law, contributory negligence occurs when the plaintiff fails to keep a proper lookout for their own safety

In one instance, the defendant must show that the plaintiff failed to take reasonable care in the circumstances of the accident

McLean v Tedman

- Plaintiff employed as a garbage collector, when technology was still limited- He had to run to the curb, pick up the bin and tip it into the truck - One morning, plaintiff collecting garbage when hit by a vehicle- Sued employer and driver of vehicle for negligence- At trial, judge found plaintiff was not guilty of contributory negligence and apportioned responsibility

between defendants- On Appeal to QCA, set aside judgement against employer (saying there was no practical solution that

would have avoided the sustained injuries) and found plaintiff should recover only 60% of damages proved

- Upon appeal to the High Court, the issue of the joint majority was: “The question is whether that failure should be characterised by mere inattention or inadvertence…”

- Majority found that certain factors ensured that plaintiff was not contributory negligent

Page | 62

o E.g. poor light, nature of the task needed preoccupation, the humper was large and bulky and obstructed view, in order to retain employment plaintiff expected to run and keep up with the truck

- High Court set aside the orders of the QCA and restored the orders of the primary judge

- Also, when the plaintiff acts in the agony of the moment, the plaintiff is not liable for contributory negligence

Caterson v Commissioner for Railways

- The plaintiff and his son drove a friend 40 miles away from home to a train station- As plaintiff was loading friend’s luggage onto the train, the train without notice started to move- Thinking of his son on a platform 40 miles away from home jumped off the train and was injured - Sued Commissioner for Railways for negligence- High Court found that in the agony of the moment, jumping off the train was not an unreasonable

action, and therefore did not break the chain of causation between the commissioner’s negligence and the sustained injuries

- Verdict was found for the plaintiff

To be considered for contributory negligence, the plaintiff’s failure must be the cause of the harm suffered- it is not necessarily that it be a cause of the accident

Froom v Butcher

- Plaintiff driving with wife and daughter when collided with defendant’s vehicle- Defendant admitted liability for accident (as he was trying to overtake but did not notice oncoming

traffic) - However, defendant claimed plaintiff’s injuries were largely due to the plaintiff’s fault of not wearing

the fitted seatbelts- In the English Court of Appeal, according to Lord Denning (Lawton and Scarman LJJ agreeing)

o “The question is not what was the cause of the accident. It is rather what was the cause of the damage… The accident is caused by bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seatbelt. If the plaintiff was to blame in not wearing a seatbelt, the damage is in part the result of his own fault. He must bear some responsibility for the damage: and his damages fall to be reduced to such an extent as the court thinks just and equitable…”

o i.e. it was recognised that the defendant was liable for the crash, but as the plaintiff failed to keep a proper lookout for his own safety, was contributory negligent

o It was found earlier that “He probably would have been saved from these injuries if he had worn a seatbelt.”

10.3.2 Civil Liability Act 2003 (Qld)

In Queensland, statute has changed contributory negligence, in particular two pieces of legislation:o Law Reform Act

s5 definition of “wrong” refers to contributory negligence at Common Law s10 statutory apportionment

Page | 63

“(b) the damages recoverable for the wrong are to be reducedto the extent the court considers just and equitablehaving regard to the claimant’s share in the responsibility for the damage.”

o Civil Liability Act s23 Changes the common law concept of contributory negligence

CLA raises the standard of care of plaintiffs to a level the same as the standard of acre owed to them

Therefore, in determining whether the plaintiff was contributory negligent, the court will use the same test to see whether or not the plaintiff was negligent to others

Refer back to s9 to determine whether or not there has been breach s24 provides that contributory negligence may defeat a claim

“In deciding the extent of a reduction in damages by reason ofcontributory negligence, a court may decide a reduction of100% if the court considers it just and equitable to do so, withthe result that the claim for damages is defeated.”

Therefore, the procedure for Contributory negligence is as follows:

Note that there are other provisions of the Civil Liability Act regarding intoxication s46 – Provides that if a person (=plaintiff) is intoxicated, that intoxication is not relevant in

determining duty of care o i.e. if a person intoxicated it does not mean that no duty is owed, or that the standard of

care is increased or decreased etc. s47 Applies if plaintiff was intoxicated at the time of the incident

(2) if the plaintiff was intoxicated, there is the presumption that they are contributory negligent (3) Plaintiff may only rebut the presumption if: the intoxication did not contribute to the breach of duty, or that the intoxication was not self-induced (both are upon the balance of probabilities) (4) If the presumption holds, the court must apportion an amount greater than or equal to 25% to the plaintiff (5) If incident in a motor vehicle, and subject to specific provisions, threshold may be increased to 50%

s48 Applies if injured plaintiff 16 years or older, relied on the skill of the intoxicated defendant, and was aware or ought to have been aware of the defendant’s intoxication

Page | 64

(2) If defendant alleges contributory negligence, it will be presumed(3) Plaintiff may only rebut the presumption if: defendant’s intoxication did not contribute to the breach of duty or, the plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill(4) If the presumption holds, the court must apportion an amount greater than or equal to 25% to the plaintiff (5) Volenti non fit Injura does not apply to a matter to which this section applies

s49 Applies to same plaintiffs and defendants mentioned in s48(2) If the concentration of alcohol in the defendant’s blood was 150mg or more of alcohol in 100mL of blood; or the defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle, the minimum reduction is increased to 50% (3) The plaintiff is taken, for this section, to rely on the care andskill of the defendant i.e. the rebuttal in s48 does not apply

10.4 Relevant sections of CLA

13 Meaning of obvious risk(1) For 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.(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.

Examples for subsection (5)—1 A motorised go-cart that appears to be in good condition may create a risk to a

user of the go-cart that is not an obvious risk if its frame has been damaged or cracked in a way that is not obvious.

2 A bungee cord that appears to be in good condition may create a risk to a user of the bungee cord that is not an obvious risk if it is used after the time the manufacturer of the bungee cord recommends its replacement or it is used in circumstances contrary to the manufacturer’s recommendation.14 Persons suffering harm presumed to be aware of obvious risks

(1) If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.

Page | 65

(2) For 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.

15 No proactive duty to warn of obvious risk(1) A person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff.(2) Subsection (1) 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, other than a doctor, 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.(4) In this section—

a professional has the same meaning as it has in division 5.16 No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.(2) An inherent risk is a risk of something occurring that can not be avoided by the exercise of reasonable care and skill.(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

17 Application of div 4(1) This division applies only in relation to liability in negligence for harm to a person resulting from a dangerous recreational activity engaged in by the plaintiff.(2) This division does not limit the operation of division 3 in relation to a recreational activity.

18 Definitions for div 4In this division—dangerous recreational activity means an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person.obvious risk has the same meaning as it has in division 3.

19 No liability for personal injury suffered from obvious risks of dangerous recreational activities

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.(2) This section applies whether or not the person suffering harm was

aware of the risk.23 Standard of care in relation to contributory negligence

Page | 66

(1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence 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 decided on the basis of what that person knew or ought reasonably to have known at the time.

24 Contributory negligence can defeat claimIn deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.

46 Effect of intoxication on duty and standard of care(1) The following principles apply in relation to the effect that a person’s intoxication has on the duty and standard of care that the person is owed—

(a) in deciding whether a duty of care arises, it is not relevant to consider the possibility or likelihood that a person may be intoxicated or that a person who is intoxicated may be exposed to increased risk because the person’s capacity to exercise reasonable care and skill is impaired as a result of being intoxicated;(b) a person is not owed a duty of care merely because the

person is intoxicated;(c) the fact that a person is or may be intoxicated does not of itself increase or otherwise affect the standard of care owed to the person.

(2) Subsection (1) does not affect a liability arising out of conduct happening on licensed premises.(3) In this section—licensed premises see the Liquor Act 1992, section 4.

47 Presumption of contributory negligence if person who suffers harm is intoxicated

(1) This section applies if a person who suffered harm was intoxicated at the time of the breach of duty giving rise to a claim for damages and contributory negligence is alleged by the defendant.(2) Contributory negligence will, subject to this section, be presumed.(3) The person may only rebut the presumption by establishing on the balance of probabilities—

(a) that the intoxication did not contribute to the breach of duty; or

(b) that the intoxication was not self-induced.

Page | 67

(4) Unless the person rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.(5) If, in the case of a motor vehicle accident, the person who suffered harm was the driver of a motor vehicle involved in the accident and the evidence establishes—

(a) that the concentration of alcohol in the driver’s blood was 150mg or more of alcohol in 100mL of blood; or(b) that the driver was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;

the minimum reduction prescribed by subsection (4) is increased to 50%.48 Presumption of contributory negligence if person who suffers harm relies on care and skill of person known to be intoxicated

(1) This section applies to a person who suffered harm (plaintiff) who—

(a) was at least 16 years at the time of the breach of duty giving rise to the harm; and(b) relied on the care and skill of a person who was intoxicated at the time of the breach of duty (defendant); and(c) was aware, or ought reasonably to have been aware, that the defendant was intoxicated.

(2) If the harm suffered by the plaintiff was caused through the negligence of the defendant and the defendant alleges contributory negligence on the part of the plaintiff, contributory negligence will, subject to this section, be presumed.(3) The plaintiff may only rebut the presumption if the plaintiff establishes, on the balance of probabilities, that—

(a) the defendant’s intoxication did not contribute to the breach of duty; or

(b) the plaintiff could not reasonably be expected to have avoided relying on the defendant’s care and skill.

(4) Unless the plaintiff rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the plaintiff would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.(5) The common law defence of voluntary assumption of risk does not apply to a matter to which this section applies.

49 Additional presumption for motor vehicle accident

Page | 68

(1) This section applies to a plaintiff and defendant mentioned in section 48.

(2) If—(a) the breach of duty giving rise to the harm suffered by the plaintiff was a motor vehicle accident; and(b) the plaintiff was a passenger in the motor vehicle; and(c) the motor vehicle was driven by the defendant; and(d) either—

(i) the concentration of alcohol in the defendant’s blood was 150mg or more of alcohol in 100mL of blood; or(ii) the defendant was so much under the influence of alcohol or a drug as to be incapable of exercising effective control of the vehicle;

the minimum reduction prescribed by section 48(4) is increased to 50%.

(3) The plaintiff is taken, for this section, to rely on the care and skill of the defendant.

Page | 69

11. Compensation for Personal Injury

11.1 Damage vs. Damages

“Damages” is different from “damages” in negligence – Harrington v Stephens The argument concerning damage:

o Damage is the gist of the action in negligenceo The existence cannot be compared with non-existence. To award damages would be to

compare the two – and you can’t

11.2 Compensation at Common Law

11.2.1 The “once-for-all” rule

The court determines a lump sum at the time of trial (to deliver them from evil?) – the plaintiff can’t move back and try to obtain more damages

Two heads of damages:

Special damagesAn exact amount can be quantified eg medical expenses, costs of physio etc

General DamagesWhere it is difficult to quantify damages eg pain and suffering, future loss of earning capacity

11.2.2 The compensatory principle

The compensatory principle: put the plaintiff in position as if the tort had not been committed If the compensatory principle cannot be applied (i.e. to calculate an amount) then the damage

claimed is unrecoverable (i.e. damages cannot be awarded to compensate for damage caused)

11.3 Compensation under the Civil Liability Act 2003 (Qld)

s54 (Damages for loss of earnings) is different from the common law in that it caps the loss of earnings (also be aware of ss50, 51, 55)

50 Application of ch 3Subject to section 5,10 this chapter applies only in relation to an award of personal injury damages.

51 Definitions for ch 3In this chapter—

general damages means damages for—(a) pain and suffering; or

Page | 70

(b) loss of amenities of life; or(c) loss of expectation of life; or(d) disfigurement. injury means personal injury.

54 Damages for loss of earnings(1) In making an award of damages for loss of earnings, including in a dependency claim, the maximum award a court may make is for an amount equal to the limit fixed by subsection (2).(2) The limit is an amount equal to the present value of 3 times average weekly earnings per week for each week of the period of loss of earnings.(3) In this section—

present value means the value when the award is made.55 When earnings can not be precisely calculated

(1) This section applies if a court is considering making an award of damages for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss.(2) The court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.(3) If the court awards damages, the court must state the assumptions on which the award is based and the methodology it used to arrive at the award.(4) The limitation mentioned in section 54(2) applies to an award of damages under this section.

s55 applies when a quantifiable amount cannot be pointed to s55 (3): the judge needs to state the assumption made when determining compensation

11.4 Case Law: Personal Injury Claims under the CLA

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

The plaintiff worked in a meatworks and was diagnosed with brucellosis At trial, Kelly SPJ found that it was ‘equally probable that the plaintiff's supervening neurotic

condition was "precipitated by brucellosis" or attributable to other unrelated circumstances.’ Even thought the Full Court of the Supreme Court of QLD said that “the plaintiff’s personality may

have led to a similar neurotic condition irrespective of the brucellosis”, they increased the damages From headnote of HCA case: ‘In assessing damages where questions arise as to the future or

hypothetical effect of physical injury or degeneration, the degree of probability of the occurrence of associated future or hypothetical events will be evaluated by the court (except in the extreme cases of mere speculation or of practical certainty). Where proof is necessarily unattainable, the court

Page | 71

assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability, leading to an increase in or decrease of the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before, or might occur after, the assessment of damages takes place.’

s59 of the CLA provides for damages for gratuitous services

59 Damages for gratuitous services(1) Damages for gratuitous services are not to be awarded unless—

(a) the services are necessary; and(b) the need for the services arises solely out of the injury in relation to which damages are awarded; and(c) the services are provided, or are to be provided—

(i) for at least 6 hours per week; and(ii) for at least 6 months.

(2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened.(3) Damages are not to be awarded for gratuitous services replacing services provided by an injured person, or that would have been provided by the injured person if the injury had not been suffered, for others outside the injured person’s household.(4) In assessing damages for gratuitous services, a court must take

into account—(a) any offsetting benefit the service provider obtains through providing the services; and(b) periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.

At the time of the drafting of the Civil Liability Act 2003 (Qld), the Queensland Parliament misunderstood the common law.

Section 59 (3) of the CLA allows damages to be awarded to third parties inside the household. This was based on the decision of Sullivan v Gordon – which said that damages could be recovered by third parties for the loss of gratuitous services

In CSR v Eddy, the High Court overruled Sullivan v Gordon damages, thus rendering s59 (3) useless

CSR v Eddy (2005) 226 CLR 1

- The plaintiff was the administrator of an estate (Thompson’s)- Thompson had died before the case reached the High Court- Thompson had provided domestic services for his injured wife pre-condition (gratuitous)- Thompson sued CSR (employee) for negligently having exposed him to asbestos

Page | 72

- Gleeson CJ, Gummow and Heydon JJo Sullivan v Gordon damages (pg 8 paragraph 4 – look at issues a) and b), a) – where a

personal… - Sullivan v Gordon) Sullivan v Gordon – amount to cover a commercial rate for the services

renderedo Griffiths v Kerkemeyer

In a claim for personal injury the plaintiff was entitled to recover an amount to the commercial cost of nursing and domestic services which had been provided in the past and would be provided in the future by the family or friends of the plaintiff (paragraph 6)

“…Griffiths v Kerkemeyer that the rue basis of the claim was the need of the plaintiff for the services”

Basis was that services were provided to plaintiffo High Court said at paragraph 17 that Sullivan v Gordon does not follow from Griffiths v

Kerkemeyer In Sullivan v Gordon the basis was the need of a third party rather than the need

of the party – the basis could not be extended by reasoningo Par. 51 – comment on CLA

59(3) assumes that at common law services are available for loss of services that would have been provided by the injured person – based on Sturch v Willmott QCA

High Court said that Sullivan v Gordon type damages are wrong in law- Sullivan v Gordon overruled: Griffiths v Kerkemeyer affirmed

o Sullivan v Gordon involved services by the plaintiff; whereas Griffiths v Kerkemeyer involved services to the plaintiff

- On a side note, McHugh J’s quote at [113] (“[i]f the law of damages is to retain its coherence, overruling Sullivan v Gordon is a necessity.”) provides another example of his coherence-based approach

- CSR v Eddy conclusion: you can recover damages for gratuitous services rendered TO you (i.e. to the plaintiff – from G v K) but not BY you (from S v G – overruled).

Kriz v King [2006] QCA 351

- Application of CSR v Eddy in Queensland

Ballesteros v Childlow [2006] QCA 323

- Another application of CSR v Eddy in Queensland

Reardon-Smith v Allianz Australia Insurance Ltd [2007] QCA 211

- An application of Malec v J C Hutton: damages were assessed upon probability- The appellant (plaintiff) was suing for damages for personal injuries suffered in a motor vehicle

accident in 2004

Page | 73

- The Queensland Court of Appeal concluded that the probability of the plaintiff moving up to the World Championship Tour was low, and the probability that the injuries he sustained from the accident would impair future earnings was low, so the damages awarded showed this

- It is simply an application of the “probability-based” damages from Malec v J C Hutton

11.5 Damages under the CLA

Sections 61 and 62 of the CLA completely change the common law

61 Assessment by court of injury scale(1) If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows—

(a) the injured person’s total general damages must be assigned a numerical value (injury scale value) on a scale running from 0 to 100;(b) the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;(c) in assessing the injury scale value, the court must—

(i) assess the injury scale value under any rules provided under a regulation; and(ii) have regard to the injury scale values given to similar injuries in previous proceedings.

(2) If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c), the court must state the factors on which the assessment is based that justify the assessed injury scale value.

62 Calculation of general damagesThe general damages must be calculated in relation to an injury arising after 1 December 2002 as follows—

(a) if the scale value of the injury is assessed as 5 or less—by multiplying the scale value by $1000;(b) if the scale value of the injury is assessed as 10 or less but more than 5—by adding to $5000 an amount calculated by multiplying the number by which the scale value exceeds 5 by $1200;(c) if the scale value of the injury is assessed as 15 or less but more than 10—by adding to $11000 an amount calculated by multiplying the number by which the scale value exceeds 10 by $1400;(d) if the scale value of the injury is assessed as 20 or less but more than 15—by adding to $18000 an amount calculated by

Page | 74

multiplying the number by which the scale value exceeds 15 by $1600;(e) if the scale value of the injury is assessed as 25 or less but more than 20—by adding to $26000 an amount calculated by multiplying the number by which the scale value exceeds 20 by $1800; (f) if the scale value of the injury is assessed as 30 or less but more than 25—by adding to $35000 an amount calculated by multiplying the number by which the scale value exceeds 25 by $2000;(g) if the scale value of the injury is assessed as 35 or less but more than 30—by adding to $45000 an amount calculated by multiplying the number by which the scale value exceeds 30 by $2200;(h) if the scale value of the injury is assessed as 40 or less but more than 35—by adding to $56000 an amount calculated by multiplying the number by which the scale value exceeds 35 by $2400;(i) if the scale value of the injury is assessed as 50 or less but more than 40—by adding to $68000 an amount calculated by multiplying the number by which the scale value exceeds 40 by $2580;(j) if the scale value of the injury is assessed as 60 or less but more than 50—by adding to $93800 an amount calculated by multiplying the number by which the scale value exceeds 50 by $2760;(k) if the scale value of the injury is assessed as 70 or less but more than 60—by adding to $121400 an amount calculated by multiplying the number by which the scale value exceeds 60 by $2940;(l) if the scale value of the injury is assessed as 80 or less but more than 70—by adding to $150800 an amount calculated by multiplying the number by which the scale value exceeds 70 by $3120;(m) if the scale value of the injury is assessed as 90 or less but more than 80—by adding to $182000 an amount calculated by multiplying the number by which the scale value exceeds 80 by $3300;(n) if the scale value of the injury is assessed as 100 or less but more than 90—by adding to $215000 an amount calculated by multiplying the number by which the scale value exceeds 90 by $3500.

Page | 75

Under the CLA, s63-64 provides that damages, if the parties agree, can be paid as an annuity rather than a lump sum. This protects the plaintiff well into the future as the risks/temptations associated with a large amount of money are alleviated.

63 Definition for pt 4In this part—

structured settlement means an agreement providing for the payment of all or part of an award of personal injury damages in the form of periodic payments funded by an annuity or other agreed means.

64 Court required to inform parties of proposed award(1) The purpose of this section is to enable the court to give the parties to a proceeding a reasonable opportunity to negotiate a structured settlement.(2) A court that decides to make an award for future loss (not including interest) of more than $100000 must first notify all the parties to the proceeding of the terms of the award it proposes to make.

Page | 76

12. Limitation of Actions

12.1 When does time begin to run?

‘The basic rule is that time begins to run when the cause of action “accrues”. In relation to tosrts that are actionable per se – without proof of damage – the limitation period begins to rune when the wrongful act is done, even though damage, if there is any, does not occur or is no discovered until later. But where damage is the “gist of the action” – the basic rule is that the period does not begin to run until the damage occurs.’ (Trindade p 818)

12.2 Introduction to Limitation of Actions Act 1974 (Qld) Section 10 of the act provides that where there is an action in (among other things) negligence (i.e.

no personal injury), the plaintiff has six years to commence an action S.11 – in respect of personal injury – 3 year limit to commence an action

Page | 77

Part 3 Extension of periods of limitation29 Extension in cases of disability(1) If on the date on which a right of action accrued whether before or after the commencement of this Act for which a period of limitation is prescribed by this Act the person to whom or for whose benefit it accrued was under a disability, the action may be brought at any time before the expiration of 6 years from the date on which the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired.(2) Notwithstanding subsection (1)—

(a) where a right of action that has accrued to a person under a disability accrues on the death of that person while still under a disability to another person under a disability—a further extension of time shall not be allowed by reason of the disability of the second person; (b) an action to recover land or money charged on land shall not be brought by virtue of this section by a person after the expiration of 30 years from the date on which the right of action accrued to that person or a person through whom the person claims; (c) an action to recover damages in respect of personal injury or damages in respect of injury resulting from the death of any person shall not be brought by a person after the expiration of 3 years from the date on which that person ceased to be under a disability or died, whichever event first occurred.

(3) This section does not apply—(a) in a case where the right of action first accrued to a person (not under a disability) through whom the person under a disability claims; (b) to an action to recover a penalty or forfeiture or sum by way of a penalty or forfeiture by virtue of an enactment save where the action is brought by an aggrieved party.

30 Interpretation(1) For the purposes of this section and sections 31, 32, 33 and34—

(a) the material facts relating to a right of action include the following—(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

Page | 78

(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing—

(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

(c) a fact is not within the means of knowledge of a person at a particular time if, but only if— (i) the person does not know the fact at that time; and (ii) as far as the fact is able to be found out by the person—the person has taken all reasonable steps to find out the fact before that time.

(2) In this section—appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.

30A Application of s 30 in actions for dust-related conditions(1) This section applies for the purposes of applying section 30 in relation to a right of action if—

(a) the right of action relates to personal injury resulting from a dust-related condition that is, or will be, a contributing factor to significant loss of amenities, or expectation, of a person’s life; and (b) the knowledge of the person suffering the injury of the nature and extent of the injury would, apart from subsection (2), be taken to be knowledge of a material fact of a decisive character.

(2) The knowledge is taken not to be knowledge of a material fact of a decisive character unless it is within the means of knowledge of the person suffering the injury that the dust-related condition is, or will be, a contributing factor to significant loss of amenities, or expectation, of the person’s life.(3) To remove any doubt, it is declared that personal injury resulting from a dust-related condition does not include personal injury resulting from smoking or other use of tobacco products or exposure to tobacco smoke. (4) In this section— dust-related condition see the Civil Liability Act 2003, schedule 2.

31 Ordinary actions(1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—

(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

The court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

QLD v Stephenson (2006) 227 ALR 17

Although 3 separate appeals, the High Court heard all three at once, as they deemed the three very similar

All three plaintiffs were\had been undercover policemen, working for the QLD Police Force They were involved in the drug arm, and frequently underwent covert and dangerous missions

Page | 79

(3) This section applies to an action whether or not the period of limitation for the action has expired—

(a) before the commencement of this Act; or (b) before an application is made under this section in respect of the right of action.

33 Prior bar ineffectiveWhere after the expiration of a period of limitation to which this part applies, the period of limitation is extended by order under this part, the prior expiration of the period of limitation has no effect for the purposes of this Act.

40 Contribution between tortfeasors(1) An action for contribution under the Law Reform Act 1995, section 6(c)1 shall not be brought after the expiration of the first of the following periods to expire—

(a) a period of limitation of 2 years running from the date on which the right of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims;(b) a period of limitation of 4 years running from the date of the expiration of the period of limitation for the principal action.

(2) For the purposes of subsection (1)(a), the date on which a right of action for contribution first accrues is—

(a) if the plaintiff in the action for contribution or a person through whom the plaintiff claims is liable in respect of the damage for which contribution is claimed by judgment in a civil action or by arbitral award—the date on which the judgment is given or the award made whether or not in the case of a judgment the judgment is afterwards varied as to quantum of damages; or (b) if, in a case to which paragraph (a) does not apply, the plaintiff in the action for contribution or a person through whom the plaintiff claims makes an agreement with a person having a right of action for the damage for which the right of action for contribution arises, which agreement fixes, as between the parties to the agreement, the amount of the liability in respect of that damage of the plaintiff in the action for contribution or a person through whom the plaintiff claims—the date on which the agreement is made.

(3) In subsection (1)(b)—The period of limitation for the principal action means the period of limitation prescribed by this Act or by any other enactment (including an enactment repealed by this Act) for the action for the liability in respect of which contribution is sought.(4) Nothing in this section affects the construction of the Law Reform Act 1995, section 6.

In the middle of 1997, the first plaintiff (Stephenson, to whom the plaintiff now refers to) started to suffer from severe depression

Plaintiff retired on medical grounds on the 23 February 2001 Commenced court action on the 20 December 2001 Defendant Queensland pleaded the time-bar limitation of s11

o i.e. as the personal injury occurred mid-1997, the plaintiff could not sue for damages after mid-2000

Plaintiff was seeking an extension to the 20 December 2001 to commence court action, pursuant to s31(2)

To the High Court, the issue hinged upon the interpretation of s31(2) of the Limitation of Actions Act 1974 (QLD):

“(2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court—(a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and …

The court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.”

Majority said that if a material fact of a decisive character relating to a right of action was not within the means of knowledge of the plaintiff until 20 December 2001, then the court has digression to extend action for a year

Joint majority (Gummow CJ, Hayne and Crennan JJ) firstly looked at the date of submissiono As the plaintiff was seeking an extension to that date, the date of submission was the

final chance considering the extensiono Therefore, the joint majority considered the 20 December 2000 to be the “expiry date”

or the “relevant date” o i.e. Plaintiff had to show that until after 20 December 2000, a material fact of a decisive

character relating to the right of action was not within his means of knowledge

Page | 80

Mid-1997

Plaintiff started to suffer from severe depression

Mid-1998

Mid-1999

Commencement of the last year preceding the expiration of the 3-year limitation period

Mid-2000

End of third year

In looking at s31(2) High Court agreed with the reasoning of the Queensland Court of Appeal judge Davies J

That “…a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant” should be read as a composite phrase

o You can’t break it up!o According to Davies Jo “… One can not have the means of knowledge of material facts of a decisive character at

a time when those material facts do not have that character. If the correct question is as I have stated it then the answer is that it was after the critical date because the material facts did not acquire a decisive character until that date.”

So when did the material fact take on decisive character?o In February 2001 (the critical date) when the plaintiff retired upon medical grounds

What was the significance of this event?o The plaintiff couldn’t start an action before this date because:

He was still in an unfit state and starting legal proceedings would have aggravated his situation

If he started an action before February 2001, it would have jeopardized his claim for retirement form the Police Force on medical grounds. Getting permission to retire upon medical grounds provided as redundancy payment, as opposed to resigning

See paragraph 35o The material fact that the plaintiff knew that he was permanently incapacitated for

police work occurred in November 2000 o However, it was not of a decisive character until after the critical date

Kirby J agreed with the joint majority and Davies J in extending the period for the plaintiffo refers to beneficial approach to remedial provisionso An issue of statutory interpretation: a remedial or beneficial provision is one that gives

some benefit to a person and thereby remedies some injusticeo Beneficial provision should be interpreted widely, liberally in favour of the person

receiving the provisiono extension of time is a beneficial provision and the approach taken by the joint majoirty

was consistent with that beneficial approach Heydon J in dissent looked at s31 in a different manner

o Believed all three conditions can be read separately

Page | 81