THE LAW OF TORTSTHE LAW OF TORTS WEEKEND SCHOOL 2 WEEKEND SCHOOL 2

Negligence: Negligence: IntroductionIntroduction

NEGLIGENCE AND FAULT NEGLIGENCE AND FAULT IN TORTSIN TORTS

NEGLIGENCENEGLIGENCE

TRESPASSTRESPASSNEGLIGENCENEGLIGENCE

the actionthe actionCARELESSCARELESS

FAULTFAULT

INTENTIONINTENTION

NEGLIGENT TRESPASSNEGLIGENT TRESPASS

• Intentional Intentional or or negligentnegligent act of D act of D which which directlydirectly causes an injury causes an injury to the to the P or his /her propertyP or his /her property without lawful justificationwithout lawful justification

•The Elements of Trespass:The Elements of Trespass:– fault: intentional or fault: intentional or negligent actnegligent act– injury must be injury must be directdirect– injury may be to the P or to his/her injury may be to the P or to his/her

propertyproperty– No lawful justificationNo lawful justification

NEGLIGENT TRESPASSNEGLIGENT TRESPASS

• While trespass is always a While trespass is always a directdirect tort, tort, it is not necessarily an intentional act it is not necessarily an intentional act in every instance. It may be in every instance. It may be committedcommitted negligently negligently

• Negligent trespassNegligent trespass is an action in is an action in trespass not in negligence:trespass not in negligence:

• Where the facts of a case permit, it Where the facts of a case permit, it possible to frame an action in both possible to frame an action in both trespass and negligence on the same trespass and negligence on the same factsfacts• Williams v. Molotin (1957) 97 CLR. 465.Williams v. Molotin (1957) 97 CLR. 465.

NEGLIGENCENEGLIGENCE

INTRODUCTIONINTRODUCTION

NEGLIGENCE AND FAULT NEGLIGENCE AND FAULT IN TORTSIN TORTS

NEGLIGENCENEGLIGENCE

TRESPASSTRESPASSNEGLIGENCENEGLIGENCE

the actionthe actionCARELESSCARELESS

FAULTFAULT

INTENTIONINTENTION

Negligence: The ElementsNegligence: The Elements

Duty of care

Breach

Damage

Negligence

What is Negligence?What is Negligence?

• It is the neglect of a legal dutyIt is the neglect of a legal duty• It involves the three elements of It involves the three elements of

• dutyduty• breach;breach;• resultant damageresultant damage

The CLA: General PrinciplesThe CLA: General Principles

• S 5B:(1) A person is not negligent in failing to take S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless:precautions against a risk of harm unless:– (a) the risk was foreseeable (that is, it is a risk of which the (a) the risk was foreseeable (that is, it is a risk of which the person knewperson knew or or

ought to have known), andought to have known), and– (b) the risk was not (b) the risk was not insignificantinsignificant, and, and– (c) in the circumstances, a reasonable person in the person(c) in the circumstances, a reasonable person in the person ’’s position s position

would have taken those precautions.would have taken those precautions.

• (2) In determining whether a reasonable person would (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant is to consider the following (amongst other relevant things):things):– (a) the probability that the harm would occur if care were not taken,(a) the probability that the harm would occur if care were not taken,– (b) the likely seriousness of the harm,(b) the likely seriousness of the harm,– (c) the burden of taking precautions to avoid the risk of 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.(d) the social utility of the activity that creates the risk of harm.

•Derry Derry v. v. PeekPeek• (Steam power-prospectus-mistatment)(Steam power-prospectus-mistatment)

• Dicta of Lord Herschell:Dicta of Lord Herschell:• A moral duty that should be converted A moral duty that should be converted

into a legal obligationinto a legal obligation

•Le Lievre Le Lievre v. v. GouldGould• (Surveyor-incorrect certificates-(Surveyor-incorrect certificates-

mortgage payments-losses)mortgage payments-losses)

Negligence: The Early CasesNegligence: The Early Cases

Donoghue v. StevensonDonoghue v. Stevenson

• Ginger beer-decomposing snail-P has shock-Ginger beer-decomposing snail-P has shock-gastroenteritisgastroenteritis

• No privity of contract between P and D. Issue No privity of contract between P and D. Issue was whether D owed P a dutywas whether D owed P a duty

• Dicta of Lord AtkinDicta of Lord Atkin• You must take reasonable care to avoid acts You must take reasonable care to avoid acts

or omissions which you can reasonably or omissions which you can reasonably foresee would be likely to injure your foresee would be likely to injure your neighbour. Who then in law is my neighbour. Who then in law is my neighbour? The answer seems to be persons neighbour? The answer seems to be persons who are closely and directly affected by my who are closely and directly affected by my act that I ought reasonably to have them in act that I ought reasonably to have them in mind to the acts or omissionsmind to the acts or omissions

NEGLIGENCENEGLIGENCE

• Grant v Australian Knitting Mills Grant v Australian Knitting Mills (1936)(1936)

• The application of the rule in The application of the rule in D v SD v S• a manufacturer of products, which he a manufacturer of products, which he

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

• whenever one person is by circumstances placed whenever one person is by circumstances placed in such a position with regard to another, that in such a position with regard to another, that every one of ordinary sense who did think would every one of ordinary sense who did think would at once recognise that if he did not use ordinary at once recognise that if he did not use ordinary care and skill in his own conduct with regard to care and skill in his own conduct with regard to those circumstances he would cause danger or those circumstances he would cause danger or injury to the pinjury to the peerson or property of the other rson or property of the other (person) (person) a duty arises to use ordinary carea duty arises to use ordinary care and and skill to avoid such danger.skill to avoid such danger.

• The dicta of Lord Atkin in The dicta of Lord Atkin in Donoghue v Donoghue v Stevenson:Stevenson:You must take reasonable care to You must take reasonable care to avoid acts or omissions which you can avoid acts or omissions which you can reasonably foresee would be likely to injure your reasonably foresee would be likely to injure your neighbour/anotherneighbour/another

NEGLIGENCE: THE DUTY NEGLIGENCE: THE DUTY OF CAREOF CARE

Negligence: (Duty of Care)Negligence: (Duty of Care)

•The Duty of care is the obligation The Duty of care is the obligation to avoid acts or omissions which to avoid acts or omissions which are reasonably foreseeable to are reasonably foreseeable to cause damage to another.cause damage to another.

•When does one owe a duty of care?When does one owe a duty of care?– Whenever one is engaged in an act Whenever one is engaged in an act

which he or she can reasonably foresee which he or she can reasonably foresee would be likely to injure another person, would be likely to injure another person, one owes a duty of care to that other one owes a duty of care to that other personperson

What is Reasonable What is Reasonable Foreseeability?Foreseeability?

•Reasonable foreseeability presupposes an Reasonable foreseeability presupposes an objective or a reasonable personobjective or a reasonable person’’s standards standard

•The reasonable person is an embodiment of The reasonable person is an embodiment of community values and what the community community values and what the community expects of a responsible citizenexpects of a responsible citizen

•The concept allows us to evaluate DThe concept allows us to evaluate D’’s s conduct not from his or her peculiar conduct not from his or her peculiar position, but from that of a reasonable position, but from that of a reasonable person similarly placedperson similarly placed

•Reasonable foreseeability is a question of Reasonable foreseeability is a question of law law

Reasonable Reasonable Foreseeability: Case LawForeseeability: Case Law

•Nova Mink v. Trans Canada AirlinesNova Mink v. Trans Canada Airlines [1951] [1951] (Air traffic noise causing minks (Air traffic noise causing minks to eat their young ones-No foreseeability)to eat their young ones-No foreseeability)

•Palsgraf v. Long Island R.R. Co. Palsgraf v. Long Island R.R. Co. (1928) (1928) (Railway guards helping falling (Railway guards helping falling passenger-fireworks explosion causing passenger-fireworks explosion causing injury to plaintiff.-No foreseeability)injury to plaintiff.-No foreseeability)

•Chapman v. HearseChapman v. Hearse (1961) (1961) (Car accident-(Car accident-Dr. stops to help-gets killed by another vehicle-Dr. stops to help-gets killed by another vehicle-action against D who caused initial accident- action against D who caused initial accident- Foreseeability upheld)Foreseeability upheld)

•United Novelty Co. v. Daniels United Novelty Co. v. Daniels (1949) (1949) (Workers cleaning coin (Workers cleaning coin operated machine with flammable operated machine with flammable substance-rat in machine runs into fire substance-rat in machine runs into fire place causing fire damage and death-place causing fire damage and death-Foreseeability upheld)Foreseeability upheld)

• Jaensch v. CoffeyJaensch v. Coffey (1984) (1984) (Car accident-spouse (Car accident-spouse goes to hospital to see injured partner-suffers shock goes to hospital to see injured partner-suffers shock from what she sees and hears of husbandfrom what she sees and hears of husband’’s condition-s condition-action against D who caused accident-Proximity-action against D who caused accident-Proximity-Duty)Duty)

The Scope of Reasonable Foreseeability

DUTY CATEGORIES: To DUTY CATEGORIES: To whom is duty owed?whom is duty owed?

• One owes a duty to those One owes a duty to those so closely and directly so closely and directly affectedaffected by his/her conduct that she ought by his/her conduct that she ought reasonably to have them in contemplation as reasonably to have them in contemplation as being so affected when undertaking the conduct being so affected when undertaking the conduct in question.in question.

• Examples:Examples:– Consumers, users of products and structuresConsumers, users of products and structures

»Donoghue v StevensonDonoghue v Stevenson»Grant v Australian Kitting Mills Grant v Australian Kitting Mills » Sullivan v MoodySullivan v Moody

– Road usersRoad users» Bourhill v YoungBourhill v Young

– Users and purchasers of premises etc.Users and purchasers of premises etc.»Australian Safeway Stores v ZaluznaAustralian Safeway Stores v Zaluzna

Unforeseeable PlaintiffsUnforeseeable Plaintiffs

• In general the duty is In general the duty is owed to only the owed to only the foreseeable plaintiff and foreseeable plaintiff and not abnormal Plaintiffs. not abnormal Plaintiffs. – Bourhill v YoungBourhill v Young [1943] AC 92 [1943] AC 92 – Levi v Colgate-Palmolive LtdLevi v Colgate-Palmolive Ltd – Haley v L.E.B.Haley v L.E.B. [1965] AC 778 [1965] AC 778

TORTSTORTS

Week 5 Week 5

Breach of DutyBreach of Duty

Negligence: The ElementsNegligence: The Elements

Duty of care

Breach

Damage

Negligence

Breach of DutyBreach of Duty• Standard of CareStandard of Care

– What standard of care is owed? (Q of law)What standard of care is owed? (Q of law)» Standard of care owed by the reasonable person in the circumstancesStandard of care owed by the reasonable person in the circumstances» What would the reasonable person do in the DWhat would the reasonable person do in the D’’s positions position

• Duty breachedDuty breached– Did the DDid the D’’s actions fail to meet that standard?s actions fail to meet that standard?

» Was risk of injury to the P Reasonably foreseeable?Was risk of injury to the P Reasonably foreseeable?» Degree of riskDegree of risk» Magnitude of harmMagnitude of harm

• IF SOIF SO– Was the response of the d to this reasonable?Was the response of the d to this reasonable?

» Calculus of negligence (from s5B) AND where relevant, considerCalculus of negligence (from s5B) AND where relevant, consider» Reasonability of precautionsReasonability of precautions» Social utilitySocial utility» Any relevant professional or statutory standardsAny relevant professional or statutory standards

Breach of Duty from Breach of Duty from ShirtShirt• If reasonable person in defendantIf reasonable person in defendant’’s position would have foreseen s position would have foreseen

risk to the P, then:risk to the P, then:• ““... it is then for the tribunal of fact to determine what a ... it is then for the tribunal of fact to determine what a

reasonable man would do by way of response to the risk. The reasonable man would do by way of response to the risk. The perception of the reasonable manperception of the reasonable man’’s response callss response calls– for a consideration of the magnitude of the riskfor a consideration of the magnitude of the risk– the degree of the probability of its occurrence, along with the expense,the degree of the probability of its occurrence, along with the expense,– difficulty and inconvenience of taking alleviating action anddifficulty and inconvenience of taking alleviating action and– any other conflicting responsibilities which the defendant may have.any other conflicting responsibilities which the defendant may have.

• It is only when these matters are balanced out that the tribunal of It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendantascribed to the reasonable man placed in the defendant’’s positios position.n.””

• RTA v DedererRTA v Dederer, Gummow J at [69]:, Gummow J at [69]:

““What Shirt requires is a contextual and balanced What Shirt requires is a contextual and balanced assessment of the reasonable response to a assessment of the reasonable response to a foreseeable risk.foreseeable risk.””

5B General principles5B General principles

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

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

• the risk was not insignificant, andthe risk was not insignificant, and• in the circumstances, a reasonable person in the person’s in the circumstances, a reasonable person in the person’s

position would have taken those precautions.position would have taken those precautions.• (2) In determining whether a reasonable person would (2) In determining whether a reasonable person would

have taken precautions against a risk of harm, the court have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant is to consider the following (amongst other relevant things):things):

• the probability that the harm would occur if care were not the probability that the harm would occur if care were not taken,taken,

• the likely seriousness of the harm,the likely seriousness of the harm,• the burden of taking precautions to avoid the risk of the burden of taking precautions to avoid the risk of

harm,harm,• the social utility of the activity that creates the risk of the social utility of the activity that creates the risk of

harm.harm.

Shaw v ThomasShaw v Thomas [2010] NSWCA [2010] NSWCA 169169

Bolton v Stone Bolton v Stone [1951] AC 850[1951] AC 850It seems to me that a reasonable man, taking account of the chances against an accident happening, would not have felt himself called on either to abandon the use of the ground for cricket or to increase the height of his surrounding fences. He would have done what the appellants did. In other words, he would have done nothing. Whether, if the unlikely event of an accident did occur and his play turn to another's hurt, he would have thought it equally proper to offer no more consolation to his victim than the reflection that a social being is not immune from social risks, I do not say, for I do not think that that is a consideration which is relevant to legal liability.

Wyong Shire Council v ShirtWyong Shire Council v Shirt (1980) 146 CLR 40(1980) 146 CLR 40

• If reasonable person in defendant’s position would have foreseen risk to the P, then:

• “... it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls– for a consideration of the magnitude of the risk– the degree of the probability of its occurrence,

along with the expense,– difficulty and inconvenience of taking alleviating

action and– any other conflicting responsibilities which the

defendant may have.• It is only when these matters are balanced

out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

Rogers v WhitakerRogers v Whitaker (1992) (1992) 175 CLR 479175 CLR 479

The standard of reasonable care and skill required is that of the ordinary skilled person exercising and professing to have that special skill, in this case the skill of an ophthalmic surgeon specialising in corneal and anterior segment surgery

Comparing DUTY to BREACHComparing DUTY to BREACH

• Mason J in Wyong v Shirt at 47-48Mason J in Wyong v Shirt at 47-48• Wagon Mound (No. 2) per Lord ReidWagon Mound (No. 2) per Lord Reid

– A reasonable man would only neglect such a risk if he had some A reasonable man would only neglect such a risk if he had some valid reason for doing so, eg, that it would involve considerable valid reason for doing so, eg, that it would involve considerable expense to eliminate the risk. He would weigh the risk against the expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it ...difficulty of eliminating it ...

Test for breachTest for breach

1.1. Was the risk of injury to P reasonably foreseeable? DUTYWas the risk of injury to P reasonably foreseeable? DUTY– RTA v Dederer RTA v Dederer (2007) 238 ALR 761(2007) 238 ALR 761

» ““It is only through the correct identification of the risk that one It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would becan assess what a reasonable response to that risk would be”” ((Gummow J at [59])Gummow J at [59])

2.2. If so, was the If so, was the responseresponse of the defendant to this risk of the defendant to this risk reasonablereasonable? BREACH? BREACH– What would the reasonable person, in the defendantWhat would the reasonable person, in the defendant’’s position s position

(with the knowledge that they either had or ought to have had) (with the knowledge that they either had or ought to have had) have done in the circumstances out of which the harm arose?have done in the circumstances out of which the harm arose?

– Did the D meet the requisite standard of care?Did the D meet the requisite standard of care?

IF NOT, there has been a breach of dutyIF NOT, there has been a breach of duty

Was risk reasonably Was risk reasonably foreseeable? foreseeable?

(s5B(1)(a))(s5B(1)(a))• Romeo v Conservation Commission Romeo v Conservation Commission

(NT) (NT) (1998) 192 CLR 431 (1998) 192 CLR 431– It is quite wrong to read past authority as It is quite wrong to read past authority as

requiring that any reasonably foreseeable risk, requiring that any reasonably foreseeable risk, however remote, must in every case be however remote, must in every case be guarded againstguarded against (Kirby J at 480) (Kirby J at 480)

• Check to see if:Check to see if:– Risk is not far-fetched or fanciful (or Risk is not far-fetched or fanciful (or

insignificant, under s5B)insignificant, under s5B)

Risk not far-fetched or fancifulRisk not far-fetched or fanciful

• The Wagon Mound (No. 2) The Wagon Mound (No. 2) [1967] 1 AC 617[1967] 1 AC 617• Wyong SC v ShirtWyong SC v Shirt (1980) 146 CLR 40 (1980) 146 CLR 40• Chapman v Hearse Chapman v Hearse (1961) 106 CLR 112(1961) 106 CLR 112

““Calculus of NegligenceCalculus of Negligence”” under under 5B(2)5B(2)

• Probability of harm occuring if care not takenProbability of harm occuring if care not taken• Likely seriousness of harmLikely seriousness of harm• Burden of taking precautionsBurden of taking precautions• Social UtilitySocial Utility

Breach of Duty – Likelihood of Breach of Duty – Likelihood of InjuryInjury

• Section 5B(2)(a) the probability that the harm would Section 5B(2)(a) the probability that the harm would occur if care were not takenoccur if care were not taken

• Bolton v Stone Bolton v Stone [1951] AC 850[1951] AC 850• RTA v Dederer RTA v Dederer (2007) 238 ALR 761(2007) 238 ALR 761

Breach of Duty – Seriousness of Breach of Duty – Seriousness of HarmHarm

• Section 5B(2)(b) the likely seriousness of the harmSection 5B(2)(b) the likely seriousness of the harm

• Adelaide Chemical & Fertilizer CoAdelaide Chemical & Fertilizer Co. v . v CarlyleCarlyle (1940) 64 (1940) 64 CLR 514CLR 514

• ParisParis v v Stepney Borough CouncilStepney Borough Council [1951] AC 367 [1951] AC 367

Breach of Duty – Cost of Avoiding Breach of Duty – Cost of Avoiding HarmHarm

• Section 5B(2)(c) the burden of taking precautions to Section 5B(2)(c) the burden of taking precautions to avoid the risk of harmavoid the risk of harm

• Caledonian Collieries LtdCaledonian Collieries Ltd v v SpeirsSpeirs (1957) 97 CLR 202 (1957) 97 CLR 202

Breach of Duty – Social Utility of the Breach of Duty – Social Utility of the Act of the DefendantAct of the Defendant

• Section 5B(2)(d) the social utility of the activity that Section 5B(2)(d) the social utility of the activity that creates the risk of harm. creates the risk of harm.

• Watt v Hertfordshire County CouncilWatt v Hertfordshire County Council

Res Ipsa LoquiturRes Ipsa Loquitur

• Elements:Elements:– Accident must raise presumption of negligenceAccident must raise presumption of negligence

» Examples: Chaproniere v Mason (1905) 21 TLR 644, Mahon v Examples: Chaproniere v Mason (1905) 21 TLR 644, Mahon v Osborne [1939] 2 KB 14Osborne [1939] 2 KB 14

– Thing must be under DThing must be under D’’s controls control– Actual cause of accident must not be knownActual cause of accident must not be known

» Barkway v South Wales Transport Barkway v South Wales Transport [1950] AC 185[1950] AC 185» Nominal Defendant v HaslbauerNominal Defendant v Haslbauer (1967) 117 CLR 448 (1967) 117 CLR 448

• EffectEffect

[1] GENERAL:CAUSATION [1] GENERAL:CAUSATION

breach damage = Negligence

There must be a causal link between D’s breach of duty and damage to P or P’s property

Duty of Care

causation

Overseas Tankship (UK) Ltd v Morts Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Dock and Engineering Co Ltd (The The

Wagon Mound 1)Wagon Mound 1)

• The facts:The facts:• The rule: the replacement of ‘direct’ The rule: the replacement of ‘direct’

cause (cause (Re PolemisRe Polemis )with reasonably )with reasonably foreseeable’foreseeable’

• It is not the hindsight of a fool, but It is not the hindsight of a fool, but the foresight of a reasonable man the foresight of a reasonable man which alone can determine liability which alone can determine liability (per Viscount Simonds)(per Viscount Simonds)

CAUSATION: THE ELEMENTSCAUSATION: THE ELEMENTS

• Causation involves two fundamental Causation involves two fundamental questions:questions:

– the factual question whether Dthe factual question whether D’’s act in fact s act in fact caused Pcaused P’’s damage: s damage: causation-in-factcausation-in-fact

– Whether, and to what extent D should be held Whether, and to what extent D should be held responsible for the consequences of his responsible for the consequences of his conduct: conduct: legal causation legal causation

CLA s5D : The Two Stage CLA s5D : The Two Stage approachapproach

• (1) A determination that negligence caused (1) A determination that negligence caused particular harm comprises the following particular harm comprises the following elements: elements: – (a) that the negligence was a necessary (a) that the negligence was a necessary

condition of the occurrence of the harm condition of the occurrence of the harm ( "factual ( "factual causation"causation" ), and ), and

– (b) that it is appropriate for the scope of the (b) that it is appropriate for the scope of the negligent personnegligent person’’s liability to extend to the harm s liability to extend to the harm so caused (so caused (scope of liability"scope of liability" ). ).

• (4) For the purpose of determining the scope (4) For the purpose of determining the scope of liability, the court is to consider (amongst of liability, the court is to consider (amongst other relevant things) whether or not and other relevant things) whether or not and why responsibility for the harm should be why responsibility for the harm should be imposed on the negligent party. imposed on the negligent party.

THE ELEMENTS OF THE ELEMENTS OF CAUSATIONCAUSATION

Causation

Factual(Causation in fact)

Legal

CAUSATION-IN-FACTCAUSATION-IN-FACT

• Causation in fact relates to the factor(s) or Causation in fact relates to the factor(s) or conditions which were causally relevant in conditions which were causally relevant in producing the consequencesproducing the consequences

• Whether a particular condition is sufficient to Whether a particular condition is sufficient to be causally relevant depends on whether it was be causally relevant depends on whether it was a a necessary conditionnecessary condition for the occurrence of the for the occurrence of the damagedamage

• The necessary condition: The necessary condition: causa sine qua noncausa sine qua non

CAUSATIONCAUSATION

• To be successful in a claim for a To be successful in a claim for a remedy, P needs to prove that the remedy, P needs to prove that the loss for which he/she seeks loss for which he/she seeks compensation was caused in fact by compensation was caused in fact by the D’s wrongful actthe D’s wrongful act

• Traditionally, the test whether D’s Traditionally, the test whether D’s wrongful act did in fact cause the loss wrongful act did in fact cause the loss is the ‘is the ‘but for’but for’ test test

CasesCases

• S 5D is a statutory formulation of the S 5D is a statutory formulation of the Common Law (Common Law (Cox v NSW Cox v NSW (2007)) Per (2007)) Per Simpson JSimpson J– Adeels Palace Pty Ltd v Moubarack Adeels Palace Pty Ltd v Moubarack (2009): The (2009): The

failure to provide security guards at New Year party failure to provide security guards at New Year party held not to be the cause of the harm as that would held not to be the cause of the harm as that would probably not have stopped the gunman from probably not have stopped the gunman from entering the restaurant entering the restaurant

– Barnett v Chelsea Hospital Management Committee: Barnett v Chelsea Hospital Management Committee: Death would probably have occurred not Death would probably have occurred not withstanding the negligence of the hospital staffwithstanding the negligence of the hospital staff

March v Stramare March v Stramare

• ( Per Mason J)( Per Mason J) in truth , the application of in truth , the application of the test proves to be either the test proves to be either inadequate or troublesome inadequate or troublesome in various situations in in various situations in which there are multiple which there are multiple acts or events leading to acts or events leading to the Plaintiff’s injury..the Plaintiff’s injury.. the test applied as an the test applied as an exclusive criterion of exclusive criterion of causation yields causation yields unacceptable results and unacceptable results and the results it yields must be the results it yields must be tempered my making value tempered my making value judgments and the infusion judgments and the infusion of policy considerations of policy considerations

Difficulties with the ‘But Difficulties with the ‘But For’For’

• March v Stramare March v Stramare ( Per Mason J)( Per Mason J)– in truth , the application of the test proves to in truth , the application of the test proves to

be either inadequate or troublesome in various be either inadequate or troublesome in various situations in which there are multiple acts or situations in which there are multiple acts or events leading to the Plaintiff’s injury..events leading to the Plaintiff’s injury..

the test applied as an exclusive criterion of the test applied as an exclusive criterion of causation yields unacceptable results and the causation yields unacceptable results and the results it yields must be tempered my making results it yields must be tempered my making value judgments and the infusion of policy value judgments and the infusion of policy considerations considerations

A common Sense A common Sense Approach to Causation?Approach to Causation?

• Per Per Deane, Dawson, Toohey and Gaudron JJ

– The ultimate question must, however, always be whether, notwithstanding the intervention of the subsequent decision, the defendant's wrongful act or omission is, as between the plaintiff and the defendant and as a matter of common sense and experience, properly to be seen as having caused the relevant loss or damage.

• Mchugh JMchugh J– It is doubtful whether there is any consistent It is doubtful whether there is any consistent

common sense notion of what constitutes a cause.common sense notion of what constitutes a cause.

Travel Compensation Fund v Robert Tambree t/as Tambree and

Associates (2005) 224 CLR 627

Beyond the But for testBeyond the But for test

• The purpose of the The purpose of the stature or indeed stature or indeed the Common Law . the Common Law . Under which it is Under which it is sort to impose the sort to impose the obligation is a obligation is a relevant factor for relevant factor for consideration in consideration in causation: See for causation: See for instance instance in March in March Stramare Stramare

MATERIAL CONTRIBTIONMATERIAL CONTRIBTION

• In general, it is not sufficient for a In general, it is not sufficient for a plaintiff to show that the negligence plaintiff to show that the negligence was one of several possible causes; was one of several possible causes; It needs to be demonstrated that DIt needs to be demonstrated that D’’s s conduct conduct was the was the most probable most probable causecause of P of P’’s damages damage..

• In Common Law, it is also not enough In Common Law, it is also not enough for P to show that Dfor P to show that D’’s conduct s conduct materially materially increased the riskincreased the risk to D. P to D. P needs to prove that Dneeds to prove that D’’ss conduct conduct materially causedmaterially caused the damagethe damage

MATERIAL CONTRIBUTIONMATERIAL CONTRIBUTION

• Chappel v Hart (1998) 156 ALR 517Chappel v Hart (1998) 156 ALR 517– Court noted that the Plaintiff must show the Court noted that the Plaintiff must show the

Defendant’s action materially contributed to the Defendant’s action materially contributed to the Plaintiff’s injury Plaintiff’s injury

Material Contribution: Material Contribution: Bonnington Castings v Wardlaw [1956] AC 613

MATERIAL CONTRIBUTIONMATERIAL CONTRIBUTION

• Bonnington Castings v Wardlaw Bonnington Castings v Wardlaw [1956] AC [1956] AC 613613

– The plaintiff had a lung disease because of fumes the The plaintiff had a lung disease because of fumes the employer had exposed him to, plus he had exposed employer had exposed him to, plus he had exposed himself to smoke – issue whether employer had caused himself to smoke – issue whether employer had caused the disease?the disease?  

– House of Lords held: P must make it appear at least House of Lords held: P must make it appear at least that on the balance of probabilities the breach of duty that on the balance of probabilities the breach of duty caused or caused or materially contributedmaterially contributed to his injury to his injury

INCREASE IN MATEARIAL INCREASE IN MATEARIAL RISKRISK

• M’Ghee v National Coal Bd (1972) 3 All ER 1008M’Ghee v National Coal Bd (1972) 3 All ER 1008 – The P claimed employer’s failure to provide showers to wash The P claimed employer’s failure to provide showers to wash

away residue caused his dermatitis - the doctors were not away residue caused his dermatitis - the doctors were not certain if showers would have stopped the plaintiff contracting certain if showers would have stopped the plaintiff contracting dermatitisdermatitis D held liable but mainly on policy grounds D held liable but mainly on policy grounds

• Wilsher v Essex Area Health AuthorityWilsher v Essex Area Health Authority (1988): (1988):– a premature baby negligently received an excessive a premature baby negligently received an excessive

concentration of oxygen and suffered retrolental fibroplasia concentration of oxygen and suffered retrolental fibroplasia leading to blindness. However the medical evidence leading to blindness. However the medical evidence demonstrated that this can occur in premature babies who demonstrated that this can occur in premature babies who have not been given excessive oxygen, and there were four have not been given excessive oxygen, and there were four other distinct conditions which could also have been causative other distinct conditions which could also have been causative of the fibroplasiaof the fibroplasia

– M’Ghee distinguished on the grounds that there was only one M’Ghee distinguished on the grounds that there was only one causal causal candidate (brick dust) candidate (brick dust)

Bailey v The Ministry of Bailey v The Ministry of Defence & Anor (2008)Defence & Anor (2008)

• The claimant aspirated her vomit leading to a The claimant aspirated her vomit leading to a cardiac arrest that caused her to suffer cardiac arrest that caused her to suffer hypoxic brain damage. There was evidence of hypoxic brain damage. There was evidence of negligence by the medical teamnegligence by the medical team

• the question: what caused her to aspirate her the question: what caused her to aspirate her vomit.vomit.– Issue: whether the negligence had "caused or Issue: whether the negligence had "caused or

materially contributed to" the injurymaterially contributed to" the injury– Held: If the claimant could have established on the Held: If the claimant could have established on the

balance of probabilities that 'but for' the negligence balance of probabilities that 'but for' the negligence of the defendant the injury would not have occurred, of the defendant the injury would not have occurred, she would have been entitled to succeed.she would have been entitled to succeed.

– The instant case involved cumulative causes acting so The instant case involved cumulative causes acting so as to create a weakness so that she could not prevent as to create a weakness so that she could not prevent the aspirationthe aspiration

INCREASE IN MATERIAL RISK INCREASE IN MATERIAL RISK VERSUS MATERIAL CAUSATIONVERSUS MATERIAL CAUSATION

• ““A material increase in the risk of injury by A material increase in the risk of injury by a defendant is not legally equated with a a defendant is not legally equated with a material contribution to the injury by a material contribution to the injury by a defendant. However, in some defendant. However, in some circumstances if it were proved that the circumstances if it were proved that the defendant did materially increase the risk defendant did materially increase the risk of injuring the plaintiff then the court of injuring the plaintiff then the court might infer might infer causation, i.e. that the causation, i.e. that the defendantdefendant’’s negligence materially s negligence materially contributed to the injurycontributed to the injury (Wallaby Grip (Wallaby Grip (BAE) Pty Ltd (in liq) v MacLeay Area (BAE) Pty Ltd (in liq) v MacLeay Area Health ServiceHealth Service ) )

The effect of Woolworths v Strong [2010] NSWCA 282

• The question asked by the Court of Appeal in determining causation was: would the accident not have happened if the Defendant had an adequate system of cleaning in place

Kavanagh v AkhtarKavanagh v Akhtar• Facts:Facts:a Muslim woman who was a Muslim woman who was

physically injured while shopping was physically injured while shopping was forced by the medical condition she had forced by the medical condition she had to then cut her previously long hair… to then cut her previously long hair… Husband rejects her causing her to Husband rejects her causing her to suffer depressionsuffer depression– In any event, the possibility that a person In any event, the possibility that a person

will desert a partner who has been will desert a partner who has been disfigured in the eyes of the deserter is disfigured in the eyes of the deserter is sufficiently commonplace to be foreseeable sufficiently commonplace to be foreseeable (Per Mason J)(Per Mason J)

• It was not necessary that the defendant It was not necessary that the defendant should have foreseen the precise nature should have foreseen the precise nature of the consequences of his act. In the of the consequences of his act. In the present case, the plaintiff’s psychiatric present case, the plaintiff’s psychiatric illness was foreseeableillness was foreseeable

Chapman v Hearse; Chapman v Hearse; Jolley V SuttonJolley V Sutton

• The place of intervening acts in The place of intervening acts in causationcausation

• Jolley v SutttonJolley v Suttton– P then aged 14, sustained serious spinal injuries P then aged 14, sustained serious spinal injuries

in an accident. It arose when a small abandoned in an accident. It arose when a small abandoned cabin cruiser, which had been left lying in the cabin cruiser, which had been left lying in the grounds of the block of flats, fell on Justin as he grounds of the block of flats, fell on Justin as he lay underneath it while attempting to repair and lay underneath it while attempting to repair and paint it. As a result he became paraplegic. paint it. As a result he became paraplegic.

– D held liable; what must have been foreseen is D held liable; what must have been foreseen is not the precise injury which occurred but injury not the precise injury which occurred but injury of a given description. The foreseeability is not of a given description. The foreseeability is not as to the particulars but the genus.as to the particulars but the genus.

Causation principles under Causation principles under the CLA: s5D (2)the CLA: s5D (2)

• In determining in an exceptional In determining in an exceptional case, in accordance with established case, in accordance with established principles, whether negligence that principles, whether negligence that cannot be established as a cannot be established as a necessary condition of the necessary condition of the occurrence of harm should be occurrence of harm should be accepted as establishing factual accepted as establishing factual causation, the court is to consider causation, the court is to consider (amongst other relevant things) (amongst other relevant things) whether or not and why whether or not and why responsibility for the harm should be responsibility for the harm should be imposed on the negligent partyimposed on the negligent party

REMOTENESS OF DAMAGEREMOTENESS OF DAMAGE

THE ELEMENTS OF THE ELEMENTS OF CAUSATIONCAUSATION

Causation

Factual(Causation in fact)

Legal

CLA s5D : The Two Stage CLA s5D : The Two Stage approachapproach

• (1) A determination that negligence (1) A determination that negligence caused particular harm comprises the caused particular harm comprises the following elements: following elements: – (a) that the negligence was a necessary (a) that the negligence was a necessary

condition of the occurrence of the harm condition of the occurrence of the harm ( "factual causation"( "factual causation" ), and ), and

– (b) that it is appropriate for the scope of (b) that it is appropriate for the scope of the negligent personthe negligent person’’s liability to extend to s liability to extend to the harm so caused (the harm so caused (scope of liability"scope of liability" ). ).

LEGAL CAUSATIONLEGAL CAUSATION

• Factual causation in itself is not Factual causation in itself is not necessarily sufficient as a basis for Dnecessarily sufficient as a basis for D’’s s liabilityliability

• To be liable, DTo be liable, D’’s conduct must be the s conduct must be the proximateproximate causecause of P of P’’s injurys injury

• PP ’’s harm must not be s harm must not be too remotetoo remote from from DD ’’s conduct s conduct

REMOTENESSREMOTENESS

• ‘‘The law cannot take account off everything The law cannot take account off everything that follows a wrongful act; it regards some that follows a wrongful act; it regards some matters as outside the scope of its selection. In matters as outside the scope of its selection. In the varied wave of affairs, the law must abstract the varied wave of affairs, the law must abstract some consequences as relevant, not perhaps on some consequences as relevant, not perhaps on grounds of pure logic but simply for practical grounds of pure logic but simply for practical reasons’ Per Lord Wright reasons’ Per Lord Wright Liebosch Dredger v SS Liebosch Dredger v SS EdisonEdison [1933] AC 449 [1933] AC 449

Case Law on RemotenessCase Law on Remoteness

• Earlier position in Common LawEarlier position in Common Law– Re PolemisRe Polemis:- the :- the ‘‘directness elementdirectness element’’

• The current position:The current position:– The Wagon Mound (No. 1)The Wagon Mound (No. 1)– The Wagon Mound (No. 2)The Wagon Mound (No. 2)

Re Polemis Re Polemis and the and the significance of significance of Wagon Wagon

MoundMound

• "the defendant did not know and could "the defendant did not know and could not reasonably be expected to have not reasonably be expected to have known that [the oil] was capable of being known that [the oil] was capable of being set afire when spread on water".set afire when spread on water".

• But if it would be wrong that a man But if it would be wrong that a man should be held liable for damage should be held liable for damage unpredictable by a reasonable man unpredictable by a reasonable man because it was "direct" or "natural," because it was "direct" or "natural," equally it would be wrong that he should equally it would be wrong that he should escape liability, however "indirect" the escape liability, however "indirect" the damage, if he foresaw or could reasonably damage, if he foresaw or could reasonably foresee the intervening events which led foresee the intervening events which led to its being done; cf. to its being done; cf. ……. Thus . Thus foreseeability becomes the effective test.foreseeability becomes the effective test.

• After the event even a fool is wise. After the event even a fool is wise. But it is not the hindsight of a fool; it But it is not the hindsight of a fool; it is the foresight of the reasonable man is the foresight of the reasonable man which alone can determine which alone can determine responsibility. The Polemis rule by responsibility. The Polemis rule by substituting "direct" for "reasonably substituting "direct" for "reasonably foreseeable" consequence leads to a foreseeable" consequence leads to a conclusion equally illogical and unjust.conclusion equally illogical and unjust.

CLA 5D(4)CLA 5D(4)

• (4) For the purpose of determining the (4) For the purpose of determining the scope of liability, the court is to scope of liability, the court is to consider (amongst other relevant consider (amongst other relevant things) whether or not and why things) whether or not and why responsibility for the harm should be responsibility for the harm should be imposed on the negligent party. imposed on the negligent party.

Characterizing the Characterizing the Damage:Damage:

• What degree of specificity the P’s What degree of specificity the P’s damage should be foreseeable. damage should be foreseeable.

– The more broadly characterised the damage is, The more broadly characterised the damage is, the more easily it can be foreseen. the more easily it can be foreseen.

– Hughes v Lord AdvocateHughes v Lord Advocate [1963] AC 837 [1963] AC 837» Where a plaintiff’s injury is foreseeable, but Where a plaintiff’s injury is foreseeable, but

the injury is caused in a unique way or the injury is caused in a unique way or manner which could not have been foreseen, manner which could not have been foreseen, the result is within the chain of proximate the result is within the chain of proximate causation and that element of negligence is causation and that element of negligence is satisfied.satisfied.

Hughes v Lord AdvocateHughes v Lord Advocate [1963] AC 837[1963] AC 837

Where a plaintiff’s injury is foreseeable, but the injury is caused in a unique way or manner which could not have been foreseen, the result is within the chain of proximate causation and that element of negligence is satisfied.

The postal employees held to be negligent even though the specific accident that occurred wasn't foreseen

Doughty v Turner ManufacturingDoughty v Turner Manufacturing [1964] 1 QB 518 Distinguished[1964] 1 QB 518 Distinguished

The English Appellate Court found that the risk of the negligence was from splash, but there was no splash. Any subsequent events were not foreseeable, and therefore outside of the scope of the risk, and there was no breach of duty.

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

• P develops P develops "severe type of mental "severe type of mental disturbance including disturbance of disturbance including disturbance of thought, disturbance of mood and thought, disturbance of mood and disturbance of behaviour and disturbance of behaviour and personality” after assisting with personality” after assisting with injured colleagues in the D’s mines. injured colleagues in the D’s mines. The colleagues subsequently died. The colleagues subsequently died. Issue as to whether P could claimIssue as to whether P could claim

Per Per Windeyer JWindeyer J

• Sorrow does not sound in damages. A plaintiff Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover in an action of negligence cannot recover damages for a "shock", however grievous, damages for a "shock", however grievous, which was no more than an immediate which was no more than an immediate emotional response to a distressing emotional response to a distressing experience sudden, severe and saddening. It experience sudden, severe and saddening. It is, however, today a known medical fact that is, however, today a known medical fact that severe emotional distress can be the starting severe emotional distress can be the starting point of a lasting disorder of mind or body, point of a lasting disorder of mind or body, some form of psychoneurosis or a some form of psychoneurosis or a psychosomatic illness. For that, if it be the psychosomatic illness. For that, if it be the result of a tortious act, damages may be had. result of a tortious act, damages may be had. [3][3]

• A man is culpably negligent if he failed to A man is culpably negligent if he failed to take measures, reasonably available, to take measures, reasonably available, to obviate a risk "which would occur to the mind obviate a risk "which would occur to the mind of a reasonable man in the position of the" of a reasonable man in the position of the" defendant "and which he would not brush defendant "and which he would not brush aside as far-fetched".aside as far-fetched". [7] [7]

Rowe v McCartneyRowe v McCartney [1976] [1976] 2 NSWLR 722 NSWLR 72

• Facts: the D asked the P whether he could Facts: the D asked the P whether he could drive her powerful car. The P agreed and was drive her powerful car. The P agreed and was a passenger in the car which the D drove a passenger in the car which the D drove negligently, striking a telegraph pole which negligently, striking a telegraph pole which resulted in the D becoming a quadriplegic. resulted in the D becoming a quadriplegic. The P suffered minor injuries but suffered a The P suffered minor injuries but suffered a mental illness as a result of feelings of guilt mental illness as a result of feelings of guilt about allowing the D to drive the car.about allowing the D to drive the car.

• Held: The mental illness suffered by the P was Held: The mental illness suffered by the P was not reasonably foreseeable nor was it the not reasonably foreseeable nor was it the same kind or type of injury that was same kind or type of injury that was reasonably foreseeable in the circumstances. reasonably foreseeable in the circumstances. The court said that the type of mental illness The court said that the type of mental illness that would have been reasonably foreseeable that would have been reasonably foreseeable was one arising from nervous shock from was one arising from nervous shock from seeing or hearing about the injury or another seeing or hearing about the injury or another or shock or worry about her own injury.or shock or worry about her own injury.

Nader v Urban Transit Nader v Urban Transit Authority of New South WalesAuthority of New South Wales

(1985) 2 NSWLR 501(1985) 2 NSWLR 501• Facts: P was a 10 yr old boy who was Facts: P was a 10 yr old boy who was

injured while alighting from moving bus. injured while alighting from moving bus. He developed a rare psychological He developed a rare psychological condition, which was argued to have condition, which was argued to have resulted from his parents’ unusual resulted from his parents’ unusual response to the accident.response to the accident.

• I think that it was certainly foreseeable I think that it was certainly foreseeable that an accident to a 10 year old boy would that an accident to a 10 year old boy would bring about a reaction from his parents. If bring about a reaction from his parents. If the plaintiff’s condition is attributable the plaintiff’s condition is attributable either in whole or in part to the attitude of either in whole or in part to the attitude of the parents, I think that is open for the the parents, I think that is open for the consequences of the defendant’s consequences of the defendant’s negligence which was within its reasonable negligence which was within its reasonable foresight. A defendant is liable even for foresight. A defendant is liable even for indirect damage which is the product of indirect damage which is the product of consequences which an be reasonably consequences which an be reasonably foreseen: the Wagon Mound (No 1)foreseen: the Wagon Mound (No 1)

Rowe and NaderRowe and Nader

• McHugh JMcHugh J– it would be a mistake to see it would be a mistake to see RoweRowe as deciding as deciding

that mental illness as the result of guilt feelings that mental illness as the result of guilt feelings is damage different in kind from mental illness is damage different in kind from mental illness arising from nervous shock or as the result of or arising from nervous shock or as the result of or in association with physical injuries.in association with physical injuries.

– Nader:Nader:» Eggshell skull rule: the court must take the Eggshell skull rule: the court must take the

boy as he was, with unusual parents, (see boy as he was, with unusual parents, (see judgment of McHugh JA with whom Samuels judgment of McHugh JA with whom Samuels JA concurred)JA concurred)

Kavanagh v AkhtarKavanagh v Akhtar

• The respondent was injured while shopping The respondent was injured while shopping at the appellant's premises. A heavy box at the appellant's premises. A heavy box containing perfume fell on her as it was containing perfume fell on her as it was being passed between two employees of the being passed between two employees of the appellant. The respondent sustained injury to appellant. The respondent sustained injury to the left shoulder, left arm and jaw. As a the left shoulder, left arm and jaw. As a result of these injuries, she was no longer result of these injuries, she was no longer able to care for her extremely long hair. able to care for her extremely long hair. Some months after the accident, she had her Some months after the accident, she had her hair cut short. Her husband reacted with hair cut short. Her husband reacted with extreme hostility to the cutting of her hair, extreme hostility to the cutting of her hair, leading to severe stress on the marriage and leading to severe stress on the marriage and finally, separation. The respondent sustained finally, separation. The respondent sustained psychiatric injury as a result of the failure of psychiatric injury as a result of the failure of the marriage.the marriage.

Kavanagh v Akhtar: Per Kavanagh v Akhtar: Per Per Mason JPer Mason J

– In any event, the possibility that a In any event, the possibility that a person will desert a partner who has person will desert a partner who has been disfigured in the eyes of the been disfigured in the eyes of the deserter is sufficiently commonplace to deserter is sufficiently commonplace to be foreseeable be foreseeable

– It was not necessary that the It was not necessary that the defendant should have foreseen defendant should have foreseen the precise nature of the the precise nature of the consequences of his act. In the consequences of his act. In the present case, the plaintiff’s present case, the plaintiff’s psychiatric illness was foreseeablepsychiatric illness was foreseeable

The Issue of CultureThe Issue of Culture

• The evidence suggests that the upset was The evidence suggests that the upset was due to at least two factors. The first was due to at least two factors. The first was extreme displeasure based on what he extreme displeasure based on what he perceived as defiance of his scripturally-perceived as defiance of his scripturally-based right of control over his wife as well based right of control over his wife as well as her defiance of religious injunctions about as her defiance of religious injunctions about women cutting their hair without permission women cutting their hair without permission of their husband (as confirmed by evidence of their husband (as confirmed by evidence given by an Imam). The respondent's given by an Imam). The respondent's husband was a very religious Muslim who husband was a very religious Muslim who prayed five times a day and attended the prayed five times a day and attended the mosque on Fridays.mosque on Fridays.

• Secondly, the husband was obviously upset Secondly, the husband was obviously upset at the loss of an adornment which had been at the loss of an adornment which had been a source of sexual attraction. The a source of sexual attraction. The respondent was unchallenged in her respondent was unchallenged in her evidence that her husband married her "for evidence that her husband married her "for her beautiful hair".her beautiful hair".

The Egg Shell Rile and The Egg Shell Rile and

Remoteness:Remoteness:Dulieu v White & SonsDulieu v White & Sons [1901] [1901]

2 KB 6692 KB 669P, then being in a state of pregnancy, was behind the bar of her husband's pub. Servants of D negligently drove a pair-horse van into the pub. P sustained a severe shock and was seriously ill and subsequently gave premature birth to a child. As a result of the sustained by P the child ‘was born an idiot’.

The “egg shell skull” principle makes a defendant liable for damage of an unforeseeable extent, but not for unforeseeable damage of a different kind.

Dulieu v White & SonsDulieu v White & Sons [1901] [1901] 2 KB 669: Per Kennedy J2 KB 669: Per Kennedy J

• It may be admitted that the plaintiff It may be admitted that the plaintiff …… would not have suffered exactly as she would not have suffered exactly as she did, and probably not to the same extent did, and probably not to the same extent as she did, if she had not been pregnant as she did, if she had not been pregnant at the time; and no doubt the driver of at the time; and no doubt the driver of the defendants' horses could not the defendants' horses could not anticipate that she was in this condition. anticipate that she was in this condition. But what does that fact matter ? If a man But what does that fact matter ? If a man is negligently run over or otherwise is negligently run over or otherwise negligently injured in his body, it is no negligently injured in his body, it is no answer to the sufferer's claim for answer to the sufferer's claim for damages that he would have suffered damages that he would have suffered less injury, or no injury at all, if he had less injury, or no injury at all, if he had not had an unusually thin skull or an not had an unusually thin skull or an unusually weak heart. unusually weak heart.

Commonwealth v McLeanCommonwealth v McLean (1996) 41 NSWLR 389(1996) 41 NSWLR 389

The plaintiff was a seaman on HMAS “Melbourne” on 10 February 1964when it collided with and sunk HMAS “Voyager” (the collision). In 1995 he brought an action in the Supreme Court to recover damages. His case was that as a result of his experiences on the night of the collision, he suffered post- traumatic stress disorder (stress disorder). As a result over the next thirty years and more he drank alcohol and smoked tobacco, both to excess, which caused him to develop a throat cancer. Psychological injury by D led to excessive tobacco and alcohol use. This led to throat cancer.

Commonwealth v McLeanCommonwealth v McLean (1996) 41 NSWLR 389(1996) 41 NSWLR 389

• Where a plaintiff suffers further damage as a Where a plaintiff suffers further damage as a consequence of foreseeable initial damage, the consequence of foreseeable initial damage, the further damage will be too remote unless it was further damage will be too remote unless it was of the same kind as the initial damage (the “egg of the same kind as the initial damage (the “egg shell skull” principle), or was itself reasonably shell skull” principle), or was itself reasonably foreseeable.foreseeable.

• Where injury to a plaintiff results from a noxious Where injury to a plaintiff results from a noxious substance or situation and only some of the substance or situation and only some of the exposure was caused by the defendant's breach exposure was caused by the defendant's breach of duty, the court may find that the defendant is of duty, the court may find that the defendant is responsible for the injury if the defendant's responsible for the injury if the defendant's contribution was significant, even when the contribution was significant, even when the breach was an indirect cause of the exposure breach was an indirect cause of the exposure and the defendant was under no specific duty to and the defendant was under no specific duty to take care to prevent that type of injury.take care to prevent that type of injury.

• “… “… damage can only be recovered if the injury damage can only be recovered if the injury complained of was not only caused by the complained of was not only caused by the alleged negligence but was also an injury of a alleged negligence but was also an injury of a class or character foreseeable as a possible class or character foreseeable as a possible result of it.result of it.

INTERVENING ACTINTERVENING ACT

• An intervening act breaks the chain of An intervening act breaks the chain of causation and may relieve D of liability. causation and may relieve D of liability. To be sufficient to break the chain, it To be sufficient to break the chain, it must either be a:must either be a:

– human action that is properly to be regarded as voluntary or a human action that is properly to be regarded as voluntary or a causally independent event the conjunction of which with the causally independent event the conjunction of which with the wrongful act in or omission is by ordinary standards so extremely wrongful act in or omission is by ordinary standards so extremely unlikely as to be turned a coincidence ( unlikely as to be turned a coincidence ( Smith J Haber v Walker Smith J Haber v Walker [1963] VR 339[1963] VR 339

INTERVENING ACT 2INTERVENING ACT 2

• A foreseeable A foreseeable ‘‘intervening actintervening act’’ does not break the chain of does not break the chain of causationcausation– Chapman v HearseChapman v Hearse

• Negligent medical treatment subsequent to negligent injury would Negligent medical treatment subsequent to negligent injury would not necessarily remove liability for D1 unless the subsequent not necessarily remove liability for D1 unless the subsequent injury was injury was ‘‘inexcusably badinexcusably bad’’, so obviously unnecessary or , so obviously unnecessary or improper that it fell outside the bounds of reputable medical improper that it fell outside the bounds of reputable medical practicepractice– (Mahony v J Kruschich Demolitions)(Mahony v J Kruschich Demolitions)

THE LAW OF TORTSTHE LAW OF TORTS

Week 11Week 11

Vicarious LiabilityVicarious Liability

91

Introduction: Personal Introduction: Personal LiabilityLiability

• In tort law liability is generally personal; ie, In tort law liability is generally personal; ie, liability is generally linked to a breach of one’s liability is generally linked to a breach of one’s (own) duty(own) duty

• There are however instances where a party may There are however instances where a party may be held liable for torts committed by another: be held liable for torts committed by another: vicarious relationshipvicarious relationship

THE NATURE OF THE NATURE OF VICARIOUS LIABILITYVICARIOUS LIABILITY

93

What is Vicarious What is Vicarious Liability?Liability?

• Liability of D (usually Liability of D (usually the the master/employermaster/employer) ) for the torts of another for the torts of another (usually his or her (usually his or her servant/employeeservant/employee) ) although the master is although the master is without any blame or without any blame or fault.fault.

94

Distinctive FeaturesDistinctive Features

•It is liability for It is liability for the the wrongful act of wrongful act of anotheranother..

• It is It is a form of strict a form of strict liability.liability. D may be D may be liable without proof of liable without proof of fault on D’s part fault on D’s part

95

Types of Vicarious Types of Vicarious Relations: Master Servant Relations: Master Servant

SituationsSituations

96

PartnershipsPartnerships

97

Principal and Agent Principal and Agent RelationsRelations

•An agent acts for the principal; but the liability of the principal for the act of the agent is not based on vicarious liability•The liability of the principal is based on the maxim: qui facit per alium, facit per se•The agent acts in a representative capacity and has the authority to act for the principal but is not necessarily a servant

What are the factors which What are the factors which create the relationship of create the relationship of employer and employee?employer and employee?

99

The Employer-Employee The Employer-Employee (Master-Servant) (Master-Servant)

RelationsRelations• An An employeremployer is vicariously liable for is vicariously liable for

the tortuous acts or omissions by his the tortuous acts or omissions by his employee employee in the course of in the course of employmentemployment whether or not such act whether or not such act or omission was specifically or omission was specifically authorised by the employer. authorised by the employer.

100

The Rationale for The Rationale for Vicarious LiabilityVicarious Liability

• Respondeat superior: Traditionally, the common law Respondeat superior: Traditionally, the common law viewed the master as responsible for the servantviewed the master as responsible for the servant’’s s conduct:conduct:

• "for seeing somebody must be a loser by (because of "for seeing somebody must be a loser by (because of the conduct of the employee), it is more reason that the conduct of the employee), it is more reason that he that employs and puts a trust and confidence in the he that employs and puts a trust and confidence in the (employee) should be a loser than a stranger". Per (employee) should be a loser than a stranger". Per Earl of Halsbury in Earl of Halsbury in Lloyd v Grace, Smith & CoLloyd v Grace, Smith & Co

• Choice and training of employees:  Liability tends to Choice and training of employees:  Liability tends to provide a spur toward careful selection, training and provide a spur toward careful selection, training and supervision of employees;supervision of employees;

•   Benefits and the burden: Since the employer receives Benefits and the burden: Since the employer receives the benefits of the activities of the enterprise, he the benefits of the activities of the enterprise, he should also bear its burdens;should also bear its burdens;

• The ability to pay: Liability increases the likelihood of The ability to pay: Liability increases the likelihood of accident victims receiving compensation  accident victims receiving compensation  

What is the difference What is the difference between a “contract of between a “contract of service” and service” and a “contract for a “contract for services”services” ?

102

• Vicarious liability arises Vicarious liability arises onlyonly in respect of in respect of the torts of the the torts of the servantservant

• The master/employer is therefore The master/employer is therefore responsible only for the torts of the servant responsible only for the torts of the servant and and notnot the the independent contractorindependent contractor

• For the master/employer to be held liable, For the master/employer to be held liable, the tortfeasor must:the tortfeasor must:

– be a servant, and be a servant, and – commit the tort in the course of his commit the tort in the course of his or her employmentor her employment

SERVANTS AND SERVANTS AND INDEPENDENT CONTRACTORSINDEPENDENT CONTRACTORS

103

WHO IS A SERVANT?WHO IS A SERVANT?

• A servant is one who is under a A servant is one who is under a contract ofcontract of serviceservice to another; an independent contractor to another; an independent contractor is under a is under a contract for servicescontract for services

• The contractor is paid for the job The contractor is paid for the job by results by results rather rather than for time spentthan for time spent; he /she receives a ; he /she receives a fee or commissionfee or commission, the servant receives , the servant receives wageswages

• The contractor is usually employed The contractor is usually employed on a casual on a casual basis, the servant on a basis, the servant on a permanent basispermanent basis

• The contractor The contractor usually specifies his/her work usually specifies his/her work schedule and supplies his/her own toolsschedule and supplies his/her own tools

• The master selects the servant for the task The master selects the servant for the task

Independent Contractor Independent Contractor ClausesClauses

• Sample Clause:Sample Clause:– For the avoidance of doubt, this Agreement and For the avoidance of doubt, this Agreement and

any engagement between the parties shall not any engagement between the parties shall not constitute a contract for services. XXXXX shall constitute a contract for services. XXXXX shall be under no obligation to offer or provide work be under no obligation to offer or provide work to XXXX, and XXXXXXXX shall be under no to XXXX, and XXXXXXXX shall be under no obligation to agree to provide services to obligation to agree to provide services to XXXXXX outside the terms of this Agreement.XXXXXX outside the terms of this Agreement.

Sample ClauseSample Clause• XXXXXX hereby employs PPPP as an Independent XXXXXX hereby employs PPPP as an Independent

Contractor, and PPPP hereby accepts such Contractor, and PPPP hereby accepts such employmentemployment

• As an Independent Contractor PPP shall provide As an Independent Contractor PPP shall provide on an "as needed" basis the following services:…on an "as needed" basis the following services:…

• As an Independent Contractor PPPPPP may As an Independent Contractor PPPPPP may engage in other business activities provided, engage in other business activities provided, however, that PPPPP shall not during the term of however, that PPPPP shall not during the term of this Agreement solicit XXXXXX’s employees or this Agreement solicit XXXXXX’s employees or accounts on behalf of the PPPPP or another entityaccounts on behalf of the PPPPP or another entity

• PPP is an Independent Contractor and nothing PPP is an Independent Contractor and nothing contained in this Agreement shall be deemed or contained in this Agreement shall be deemed or interpreted to constitute the Independent interpreted to constitute the Independent Contractor as a partner, agent or employee of Contractor as a partner, agent or employee of XXXX, nor shall either party have any authority to XXXX, nor shall either party have any authority to bind the other.bind the other.

Substance Substance versusversus Form/LabelForm/Label

•Note that while the Note that while the agreement between the agreement between the parties and the label they use parties and the label they use to describe their relationship to describe their relationship may have some evidentiary may have some evidentiary value, the courts ultimately value, the courts ultimately look at the substantive look at the substantive elements of the relationship elements of the relationship rather than the label the rather than the label the parties use to describe their parties use to describe their agreement agreement

Some Substantive Some Substantive Elements in the Elements in the

RelationshipRelationship• Control:Control:

– Hours of workHours of work– Place of workPlace of work– Type of workType of work– choice of workerschoice of workers

• Payment Payment • Public perceptionPublic perception• supply of equipmentsupply of equipment• the skills requiredthe skills required• Taxation, GST and superannuation issuesTaxation, GST and superannuation issues• Casual or permanentCasual or permanent• whether employee is permitted to work for whether employee is permitted to work for

othersothers

108

WHO IS A SERVANT?: WHO IS A SERVANT?: THE CONTROL TESTTHE CONTROL TEST

• In general, if the Master controls what In general, if the Master controls what the employee does and how it is done, the employee does and how it is done, then the employee is generally a then the employee is generally a servant. The relationship will give rise to servant. The relationship will give rise to Vicarious Liability.Vicarious Liability.

• The nature and extent of control will The nature and extent of control will depend on the nature of the workdepend on the nature of the work

Zuijis v Wirth Bros: Zuijis v Wirth Bros: • The specialized nature of The specialized nature of

a job does not necessarily a job does not necessarily imply that the worker is imply that the worker is an independent an independent contractorscontractors

• What is essential is not What is essential is not actual control, but the actual control, but the right to control.right to control.

• Professionals may Professionals may exercise their own exercise their own judgment and discretion judgment and discretion on how to perform their on how to perform their tasks However, if the tasks However, if the authority to command authority to command remains in incidental or remains in incidental or peripheral matters such peripheral matters such as hours of duty then one as hours of duty then one is a servant is a servant

Stevens v Brodribb Sawmilling Stevens v Brodribb Sawmilling Company Pty LtdCompany Pty Ltd : The totality of the : The totality of the

relationship relationship

• Mason J:Mason J:– A prominent factor in A prominent factor in

determining the nature of determining the nature of the relationship between the relationship between a person who engages a person who engages another to perform work another to perform work and the person so and the person so engaged is the degree of engaged is the degree of control which the former control which the former can exercise over the can exercise over the latter. It has been held, latter. It has been held, however, that the however, that the importance of control lies importance of control lies not so much in its actual not so much in its actual exercise, although clearly exercise, although clearly that is relevant, as in the that is relevant, as in the right of the employer to right of the employer to exercise exercise ..

• … … The approach of this Court has been The approach of this Court has been to regard it merely as one of a number to regard it merely as one of a number of indicia which must be considered in of indicia which must be considered in the determination of that question… the determination of that question… Other relevant matters include, but are Other relevant matters include, but are not limited to, the mode of not limited to, the mode of remuneration, the provision and remuneration, the provision and maintenance of equipment, the maintenance of equipment, the obligation to work, the hours of work obligation to work, the hours of work and provision for holidays, the and provision for holidays, the deduction of income tax and the deduction of income tax and the delegation of work by the putative delegation of work by the putative employeeemployee

Wilson and Dawson JJ at Wilson and Dawson JJ at [11][11]

The other indicia of the nature of the The other indicia of the nature of the relationship have been variously stated relationship have been variously stated and have been added to from time to time. and have been added to from time to time. Those suggesting a contract of service Those suggesting a contract of service rather than a contract for services include:rather than a contract for services include:•the right to have a particular person do the right to have a particular person do the work,the work,•the right to suspend or dismiss the the right to suspend or dismiss the person engaged,person engaged,•the right to the exclusive services of the the right to the exclusive services of the person engaged and person engaged and •the right to dictate the place of work, the right to dictate the place of work, hours of work and the hours of work and the like. like.

Wilson and Dawson JJWilson and Dawson JJ

• Those which indicate a contract for Those which indicate a contract for services include:services include:

– work involving a profession, trade or distinct work involving a profession, trade or distinct calling on the part of the person engaged,calling on the part of the person engaged,

– the provision by him of his own place of workthe provision by him of his own place of work– or of his own equipment,or of his own equipment,– the creation by him of goodwill or saleable the creation by him of goodwill or saleable

assets in the course of his work, assets in the course of his work, – the payment by him from his remuneration of the payment by him from his remuneration of

business expenses of any significant proportion business expenses of any significant proportion andand

– the payment to him of remuneration without the payment to him of remuneration without deduction for income tax.deduction for income tax.

Wilson and Dawson JJWilson and Dawson JJ

• Having said that, we should point out Having said that, we should point out that any attempt to list the relevant that any attempt to list the relevant matters, however incompletely, may matters, however incompletely, may mislead because they can be no more mislead because they can be no more than a guide to the existence of the than a guide to the existence of the relationship of master and servant. The relationship of master and servant. The ultimate question will always be whether ultimate question will always be whether a person is acting as the servant of a person is acting as the servant of another or on his own behalf and the another or on his own behalf and the answer to that question may be answer to that question may be indicated in ways which are not always indicated in ways which are not always the same and which do not always have the same and which do not always have the same significancethe same significance

Hollis v Vabu Pty Ltd Hollis v Vabu Pty Ltd [2001][2001]

• Couriers were not providing Couriers were not providing skilled labour or labour which skilled labour or labour which required special required special qualifications.qualifications.

• Deterrence: Holding the Deterrence: Holding the employer vicariously liable employer vicariously liable for the wrongs of its for the wrongs of its employee may encourage the employee may encourage the employer to take such steps, employer to take such steps, and hence, reduce the risk of and hence, reduce the risk of future harm. future harm.

• Control: Vabu retained Control: Vabu retained control of the allocation and control of the allocation and direction of the various direction of the various deliveries.deliveries.

• Riders wore uniform: "DRIVERS Riders wore uniform: "DRIVERS SHOULD ALWAYS BE AWARE THAT SHOULD ALWAYS BE AWARE THAT THEY ARE A DIRECT THEY ARE A DIRECT REPRESENTATION OF THE COMPANY. REPRESENTATION OF THE COMPANY. THEIR ATTITUDE AND APPEARANCE THEIR ATTITUDE AND APPEARANCE CAN ONLY BE SEEN AS A DIRECT CAN ONLY BE SEEN AS A DIRECT REFLECTION OF OUR REFLECTION OF OUR ORGANISATION.” ORGANISATION.”

• Vabu superintended the couriers' Vabu superintended the couriers' finances:finances:

• This suggests that their engagement This suggests that their engagement by Vabu left the couriers with limited by Vabu left the couriers with limited scope for the pursuit of any real scope for the pursuit of any real business enterprise on their own business enterprise on their own account. account.

• Although a better employer may Although a better employer may have born the cost of bikes and have born the cost of bikes and repairs, capital outlay was small and repairs, capital outlay was small and bikes also provide means of bikes also provide means of transport to get to and from work. transport to get to and from work.

116

Borrowed ServantsBorrowed Servants

• Instances of borrowed services:Instances of borrowed services:– The general (ie regular) employer leases (out) a vehicle or The general (ie regular) employer leases (out) a vehicle or

equipment such as crane, power shovel, bulldozer, truck etc equipment such as crane, power shovel, bulldozer, truck etc with employee as operator, to a party (special employer) who with employee as operator, to a party (special employer) who has a temporary need for such machinery.  Employee commits has a temporary need for such machinery.  Employee commits a torts by the negligent operation of machinery a torts by the negligent operation of machinery

–   The general employer as his business provides temporary The general employer as his business provides temporary workers to other parties (special employers), sometimes simply workers to other parties (special employers), sometimes simply as day laborers, sometimes as skilled workers for specified as day laborers, sometimes as skilled workers for specified periods of time.periods of time.

– The general employer, by an agreement with the special The general employer, by an agreement with the special employer assigns the employee to work for the special employer assigns the employee to work for the special employer for a specified period on secondment or attachment employer for a specified period on secondment or attachment etc etc

117

The Test in in the case of The Test in in the case of Borrowed ServantsBorrowed Servants

• The transfer or loan of an employee to the The transfer or loan of an employee to the special employer is not intended to special employer is not intended to terminate the employeeterminate the employee’’s employment with s employment with the general employer. the general employer. 

• An employee is presumed to continue in An employee is presumed to continue in the employment of the general employer. P the employment of the general employer. P or the general employee carries the burden or the general employee carries the burden of proof where there is an allegation that of proof where there is an allegation that the special employer has assumed control the special employer has assumed control and become the principal employer and become the principal employer

• The test is controlThe test is control– Mersey Docks & Harbour Board v Mersey Docks & Harbour Board v

Coggins & GriffithCoggins & Griffith

WHEN DOES ONE ACT IN WHEN DOES ONE ACT IN THE ‘COURSE OF THE ‘COURSE OF EMPLOYMENT’?EMPLOYMENT’?

119

‘‘IN THE COURSE OF IN THE COURSE OF EMPLOYMENTEMPLOYMENT’’

• D is liable only if the servant D is liable only if the servant committed the tort in the course of committed the tort in the course of his or her employmenthis or her employment

• Whether the torts is committed in Whether the torts is committed in the course of employment or not the course of employment or not turns on:turns on:– What tasks are authorizedWhat tasks are authorized– Whether the employeeWhether the employee’’s tortuous act s tortuous act

are so connected to authorized tasks are so connected to authorized tasks that it can be seen as a mode of that it can be seen as a mode of carrying out the task albeit wrongfullycarrying out the task albeit wrongfully

Comcare v PVYW [2013] Comcare v PVYW [2013] HCA 41HCA 41

• Ms PVYW was sent to a country town by her Ms PVYW was sent to a country town by her employer to conduct budget reviews and employer to conduct budget reviews and provide training. As she was required to stay provide training. As she was required to stay overnight, her employer booked her into a overnight, her employer booked her into a hotel.hotel.

• Having finished work for the day and at a loose Having finished work for the day and at a loose end, she called a friend who lived in the town end, she called a friend who lived in the town for dinner. After the meal, they went back to for dinner. After the meal, they went back to her hotel room, where they also had sex. A her hotel room, where they also had sex. A glass light fitting above the bed was pulled glass light fitting above the bed was pulled from its mount, falling on Ms PVYW and injuring from its mount, falling on Ms PVYW and injuring her nose and mouth, sending her to the her nose and mouth, sending her to the hospital.hospital.

• She then made a claim for workers' She then made a claim for workers' compensation.compensation.

The issuesThe issues

• The question for the High Court was a The question for the High Court was a simple one: Is an injury (no matter what simple one: Is an injury (no matter what caused it) within the “course of caused it) within the “course of employment” if it occurs:employment” if it occurs:

• during an interval or interlude within an during an interval or interlude within an overall period or episode of work; and overall period or episode of work; and

• at a place the employer has induced or at a place the employer has induced or encouraged the employee to spend that encouraged the employee to spend that interval or interlude at; andinterval or interlude at; and

• in circumstances where there is no in circumstances where there is no disentitling behaviour (such as gross disentitling behaviour (such as gross misconduct or the injury being self-misconduct or the injury being self-inflicted)? inflicted)?

The Right Approach?The Right Approach?

• determine if the employee suffered injury, determine if the employee suffered injury, but not while engaged in actual work;but not while engaged in actual work;

• if so, what was the employee doing when if so, what was the employee doing when injured? (the employee must have been injured? (the employee must have been either engaged in an activity or present either engaged in an activity or present at a place when the injury occurred);at a place when the injury occurred);

• how was the injury brought about? how was the injury brought about? • if it occurred at and by reference to the if it occurred at and by reference to the

place (eg. a wall collapses on an place (eg. a wall collapses on an employee), the question is: did the employee), the question is: did the employer induce or encourage the employer induce or encourage the employee to be there?employee to be there?

• when an activity was engaged in at the when an activity was engaged in at the time of injury, the question is: did the time of injury, the question is: did the employer induce or encourage the employer induce or encourage the employee to engage in that activity?employee to engage in that activity?

Criminal Act of Employee does not necessarily Criminal Act of Employee does not necessarily take conduct outside the scope of employment.take conduct outside the scope of employment.

Ffrench v Sestili: Sestili & Triton Underwriting Ffrench v Sestili: Sestili & Triton Underwriting Insurance Agency Insurance Agency [2007] SASC 241[2007] SASC 241• Theft of ATM funds held to be within scope of Theft of ATM funds held to be within scope of employment employment •““The means to effect the fraud was The means to effect the fraud was ascertained …in the course of her ascertained …in the course of her employment”employment”•Was “so closely connected with the duties of Was “so closely connected with the duties of caring…” for severely disabled victim.caring…” for severely disabled victim.•““Vulnerability of person being cared for…”Vulnerability of person being cared for…”

Torts Week 11 123

Acting in the course of Acting in the course of employmentemployment

New South Wales v LeporeNew South Wales v Lepore

• 3 cases heard together of teachers 3 cases heard together of teachers employed by school authority sexually employed by school authority sexually abusing pupils.abusing pupils.

– At issue: whether the intentional criminal At issue: whether the intentional criminal conduct of the servant comes within ‘scope of conduct of the servant comes within ‘scope of employment’employment’

– . An act of intentional, criminal wrongdoing, . An act of intentional, criminal wrongdoing, solely for the benefit of the employee, may be solely for the benefit of the employee, may be easy to characterise as an independent act; but easy to characterise as an independent act; but it is not necessarily so, and there are many it is not necessarily so, and there are many examples of cases where such conduct has been examples of cases where such conduct has been found to be in the course of employmentfound to be in the course of employment..

LaporeLapore

• An employer is vicariously liable for a tort An employer is vicariously liable for a tort committed by an employee in the course of committed by an employee in the course of his or her employment. The limiting or his or her employment. The limiting or controlling concept, course of employment, is controlling concept, course of employment, is sometimes referred to as scope of sometimes referred to as scope of employment. Its aspects are functional, as employment. Its aspects are functional, as well as geographical and temporal. Not well as geographical and temporal. Not everything that an employee does at work, or everything that an employee does at work, or during working hours, is sufficiently during working hours, is sufficiently connected with the duties and responsibilities connected with the duties and responsibilities of the employee to be regarded as within the of the employee to be regarded as within the scope of the employment. And the fact that scope of the employment. And the fact that wrongdoing occurs away from the workplace, wrongdoing occurs away from the workplace, or outside normal working hours, is not or outside normal working hours, is not conclusive against liabilityconclusive against liability

• There were six separate judgments in There were six separate judgments in LeporeLepore..

• Only Gummow and Hayne JJ Only Gummow and Hayne JJ concurred. concurred.

• Only McHugh J dissented.Only McHugh J dissented.

Century Insurance Co Ltd v Century Insurance Co Ltd v Northern Ireland Road Northern Ireland Road

Transport BoardTransport Board

• FactsFacts: the driver of a petrol truck was : the driver of a petrol truck was transferring petrol from the truck to transferring petrol from the truck to an underground tank at a garage. an underground tank at a garage. While doing this, he lit a cigarette and While doing this, he lit a cigarette and threw the lit match onto the floor. The threw the lit match onto the floor. The result was a fire and the filling station result was a fire and the filling station burnt down. burnt down.

• HeldHeld: The driver’s employers were : The driver’s employers were held vicariously liable as the act was held vicariously liable as the act was done in the course of his employment done in the course of his employment even though he was not authorised to even though he was not authorised to smoke while loading tanks with petrol. smoke while loading tanks with petrol.

Phoenix Society Inc v Phoenix Society Inc v CavanaghCavanagh (1997) (1997)

• FactsFacts: a drunken bus driver collided with a : a drunken bus driver collided with a car and injured the plaintiff who was car and injured the plaintiff who was driving the car. The bus driver had been driving the car. The bus driver had been specifically warned by her employer not to specifically warned by her employer not to drink and drive. drink and drive.

• HeldHeld: The employer was nevertheless held : The employer was nevertheless held to be liable for her negligent act.to be liable for her negligent act.

• Note: To be ‘during the course of Note: To be ‘during the course of employment’ and thus render an employer employment’ and thus render an employer liable, an employee must be undertaking liable, an employee must be undertaking the negligent activity as part of their the negligent activity as part of their employment, irrespective of whether the employment, irrespective of whether the employee has been specifically instructed employee has been specifically instructed by the employer not to undertake the by the employer not to undertake the negligent behaviour.negligent behaviour.

Deatons Pty Ltd v FlewDeatons Pty Ltd v Flew (1949) (1949) 79 CLR 37079 CLR 370

• FactsFacts: Mrs. Barlow : Mrs. Barlow was a barmaid was a barmaid She claimed P was She claimed P was drunk, insulted drunk, insulted her and slapped her and slapped her. She threw a her. She threw a glass of beer at glass of beer at him and he him and he became blind in became blind in one eye. P argued one eye. P argued that throwing that throwing beer was beer was incidental to her incidental to her employment. employment.

Dixon JDixon J in Deatons Pty Ltd Deatons Pty Ltd v Flewv Flew

• In my opinion, however, it is clear that, upon In my opinion, however, it is clear that, upon the case made for the plaintiff, a finding could the case made for the plaintiff, a finding could not be supported that the barmaid acted in the not be supported that the barmaid acted in the course of her employment so that the course of her employment so that the defendant company would be vicariously liable. defendant company would be vicariously liable. For upon the plaintiff's case the assault was as For upon the plaintiff's case the assault was as unexplained as it was unprovoked and might unexplained as it was unprovoked and might have proceeded from private spite on the part have proceeded from private spite on the part of the barmaid or from some other cause quite of the barmaid or from some other cause quite unconnected with her occupation or unconnected with her occupation or employment. employment.

• The truth is that it was an act of passion and The truth is that it was an act of passion and resentment done neither in furtherance of the resentment done neither in furtherance of the master's interests nor under his express or master's interests nor under his express or implied authority nor as an incident to or in implied authority nor as an incident to or in consequence of anything the barmaid was consequence of anything the barmaid was employed to do. employed to do.

Will the employer be liable for tort in contravention of Will the employer be liable for tort in contravention of the prohibition?the prohibition?  •An act in defiance of a prohibition which LIMITS THE An act in defiance of a prohibition which LIMITS THE SPHERE OF EMPLOYMENT will be OUTSIDE the scope of SPHERE OF EMPLOYMENT will be OUTSIDE the scope of employment - employer not liableemployment - employer not liable•An act in defiance of a prohibition which deals with An act in defiance of a prohibition which deals with CONDUCT WITHIN SPHERE (ie: how, when, where etc CONDUCT WITHIN SPHERE (ie: how, when, where etc tasks are performed) OF EMPLOYMENT will not be tasks are performed) OF EMPLOYMENT will not be outside the scope of employment - employer is liableoutside the scope of employment - employer is liable  Bugge v Brown Bugge v Brown (1919) 26 CLR 110 (1919) 26 CLR 110

•A prohibition as to manner…time…or place …or as to A prohibition as to manner…time…or place …or as to the very act itself…will not necessarily limit the sphere the very act itself…will not necessarily limit the sphere of employmentof employment•To limit the sphere of employment the prohibition “ To limit the sphere of employment the prohibition “ must be such that its violation makes the servant’s must be such that its violation makes the servant’s conduct ..so distinctly remote and disconnected from conduct ..so distinctly remote and disconnected from his employment…”his employment…”

Torts Week 11 131

In the Course of Employment In the Course of Employment

Employer prohibitionsEmployer prohibitions

• Bugge v BrownBugge v Brown (1919) (1919)– Facts:Worker was to be supplied with cooked meat at work Facts:Worker was to be supplied with cooked meat at work

but the cook had left and the wife gave him meat and but the cook had left and the wife gave him meat and potatoes, sauce etc and a frying pan to cook with. It was potatoes, sauce etc and a frying pan to cook with. It was considered then necessary that he eat meat. He went to considered then necessary that he eat meat. He went to cook it and a fire resulted with damage to the neighbour’s cook it and a fire resulted with damage to the neighbour’s land.land.

– Issue: whether the act of employee, in lighting the fire on Issue: whether the act of employee, in lighting the fire on 27th December 1917 in McDonald's paddock for the purpose 27th December 1917 in McDonald's paddock for the purpose of cooking his midday meal, was within "the course of his of cooking his midday meal, was within "the course of his employment," or was an act entirely outside the relation of employment," or was an act entirely outside the relation of master and servant, and therefore to be regarded as the act master and servant, and therefore to be regarded as the act of a stranger.of a stranger.

– Held: this was negligence but not a frolic of his own, it was Held: this was negligence but not a frolic of his own, it was within his employment. While he lit the fire somewhere he within his employment. While he lit the fire somewhere he was told not to was not sufficient to remove liability of the was told not to was not sufficient to remove liability of the employer.employer.