8. Negligence: Introduction

Negligence over trespass – why? In negligence you don’t need to prove directness (“gist of the action is damage”). Onus of proving fault doesn’t reverse in trespass on highway. Damage also apples to Trespass to receive compensation. In an action in Trespass there is a cost burden on plaintiff whereas in Action on Case winner pays other

parties’ fees. A lot of accidents that occur are during work and can’t you can’t sue employer (eg. BHP instead of

truckdriver employed by BHP) for Trespass as it requires directness. Therefore, it is better to sue the employer for negligence – more money.

3 elements – duty of care, breach of duty, damage. Duty of care – limits liability according to social and policy reasons. Duty of care requires – reasonable foreseeability, ‘something else’. Reasonable foreseeability considers – plaintiff, damage, manner. Damage – personal injury and property damage (including consequential nervous shock and/or economic

loss), pure nervous shock (recognisable psychiatric illness), pure economic loss (usually when P relies on info negligently given; or if latent defect reduces property value).

In classes of case which aren’t about direct physical injury or property damage, ‘something else’ must be satisfied. This is defined for some classes of case.

Breach of duty – determine standard of care based on reasonable person and foreseeability (with regard to precise accident, as opposed to the general view taken in determining duty of care).

Damage – Did negligent act of D cause (causation): policy determines what act to attribute causation to; must be factual, not attributive. Can’t be too remote (type of damage must be foreseeable).

Defences – illegality, voluntary assumption of risk, contributory negligence. Negligence is essentially undefined, so can be broadly applied. 1600s onwards, negligence component element of following torts – common callings (eg. lawyer), public

responsibility, bailment, custom or prescription (eg. obligation to maintain road), dangerous things (eg. house catching fire and spreading), field of trespass.

Concept of duty of care arose in about 1840.

Langridge v Levy (1837) Father went to buy a gun for his son from a gun dealer, who lied about brand of gun. Gun exploded in

son’s hand, who then maintained action against gun dealer. Contract was between gun dealer and father but court managed to find remedy for son by saying dealer

acted deceitfully and that father was buying gun on behalf of son. Court didn’t want to extend liability to manufacturer by a third party.

Winterbottom v Wright (1842) A was under a contract to build carriage for B, the post master general. C, the delivery person, was

injured by negligently built carriage. C said that A should be liable because he broke contract with B. This breaks doctrine of privity of

contract. Court said they wouldn’t recognise duty other than that in the contract because they didn’t want to

indefinitely extend liability. First time duty was mentioned in English law.

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9. Negligence: The Duty of Care

(1) General Principles Basis: reasonable foreseeability of class, manner, type of damage. If type of damage is physical injury or property damage and manner is direct then a duty of care is

always owed (Jaensch v Coffey; Bryan v Maloney). If manner is not direct then see if there is an established category. If no category it is a novel case

(see Perre v Apand), so must determine whether a duty should be owed. If the type of damage is economic loss there are about 6 categories (eg. negligent misstatement). There are also various categories of physical harm and property damage (eg. occupier and visitor to land,

direct, etc.).

Heaven v Pender – held that there is a general duty of care that must be shown before recovery for negligence.

Palsgraf v Long Island Railroad Co. – American case where guard who was carrying a package for a passenger on a train negligently dropped package. Fireworks were in the package, one of which flew down the other end of the train and knocked something off the roof, injuring a passenger. Cardozo J determined that negligence depends on relationships (duty of care) and that because the plaintiff was not foreseeable no duty could arise to the plaintiff.

Donoghue v Stevenson (p104) – Requirement of reasonable foreseeability (in according with Heaven v Pender). Atkins J set up prima facie duty of care based on the neighbourhood principle that: “persons who are so closely and directly affected by my act that I ought reasonably to have held them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question”. Must take reasonable care to avoid acts or omission which are reasonably foreseeable to injure neighbour.

Home Office v Dorset Yacht Co. (p150) – 7 juvenile prisoners escaped and damaged a boat. Boat owner sued prison guard. Reid LJ set up a prima facie decision that D v S will apply unless there’s a reason for it not to apply (see handout). Lord Diplock said can’t use D v S as a definitive guiding principle (see p 151). Used policy to decide that duty still exists even though 2 of the 5 principles in D v S weren’t there.

Anns v Merton London Borough Council – see p158 half way down. Council didn’t inspect building, foundations cracked and building owners suffered ‘material physical damage’. Decided that where there is a reasonable contemplation (foreseeability) of damage then prima facie duty of care applies.

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Proximity & Duty of CareJaensch v Coffey (p124) HC 1984 Wife of victim of car accident suffered nervous shock. Deane J set down requirements for duty of care:

1. A reasonable foreseeability of real risk of injury to the plaintiff either as an identifiable individual or a member of a class of persons.

2. The existence of proximity between the parties with respect to the act or omission.3. Absence of any rule that precludes such a duty.

Council of the Shire of Sutherland v Heyman (p158) HC 1985 New owner of house sued council for not inspecting house, which cracked because of faulty work.

Economic damage. Per Deane J: Reasonable foreseeability of damage is not enough. There has to be "the requisite element of

proximity in the relationship between the parties with respect to the relevant act or omission" In the more settled areas of law reasonable foreseeability may be enough to satisfy the proximity requirement.

Proximity:1. the notion of nearness or closeness (physical proximity)2. circumstantial proximity - an employment or professional relationship3. causal proximity between the act and the damage.

In this case the only relationship between the Council and the P is one under the provisions of a statute. Proximity is decided upon a precedent, or, what is fair and reasonable together with considerations of

public policy. Proximity only applies to novel categories of case (eg. not relevant if there is direct physical impact).

The Incremental Approach Involves analogy with established categories rather than by extension of prima facie duty of care

restrained only by indefinable considerations (proximity relies heavily on policy). As per Brennan CJ (its most influential proponent in Australia):

"… incrementally and by analogy with established categories, rather than by a massive extension of a prima facie duty restrained only by indefinable considerations which ought to negative, to reduce or limit the scope of the duty or the class of person to whom it is owed"

Policy1. Administration - where the decision might lead, particularly for judicial administration of future claims,2. Public Interest - whether the interest invaded should be protected,3. Legislation - whether the legislation is better placed to implement change,4. Morality - competing moral claims,5. Loss distribution - where the loss should fall.

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Public Authorities What is a public authority? – The Crown (government, ministers etc.); authorities (set up under statute

to fulfil certain purpose – local councils). Sovereign immunity – Crown used to have immunity against liability. This common law principle was

overturned in around 1900, when the Crown became liable as a normal person would be. Local Government Act governs councils. It gives them: duty (required acts – “must” or “shall”),

authority to perform certain acts (gives power to do so – “may”), function (purpose of council). Councils liable the same as a private person is, held to the same standard. When looking at uniquely government powers, the power can be: not exercised (then no liability

because omission) or exercised negligently (then liability may exist). If a duty is not performed by a council then the tort of Breach of Statutory Duty will be the likely cause of

action rather than negligence. Discretion is usually conferred to a decision maker, but they must still act intra vires (within statutory

power), not ultra vires (outside the power). Policy decision – high level of discretion, wide range of decisions possible and the choice is made

considering politics, social environment, economics etc. Operational decision – carrying out of policy that has been decided at a higher level. The term general reliance is no longer used, but ideas about control and knowledge (by authority) and

vulnerability and harm (of P) are still used.

Anns v Merton London Borough Council 1978 Canada If a council negligently exercises a power such as not inspecting a building, then you have to show that

the inspection was ultra vires and that it was in fact negligent (done without reasonable care). If a council fails to exercise power then you must show that the decision not to do so or the lack of

consideration was ultra vires. Only outside discretion can a common law duty of care arise. This remains the law in Canada.

Council of the Shire of Sutherland v Heyman (p158) HC 1985 2 judges followed Anns, 2 didn’t. Mason J’s decision is considered leading judgement. He said that a duty of care can exist whether or not

the act was inside or outside of power. He said it is based on reliance – whether the P relies on the council to exercise their duties and powers.

Specific reliance – when explicit request from P to council to perform duty. General reliance – when P doesn’t explicitly tell council that he/she is relying on them. In this case, the P could have specifically relied on the council by getting a certain certificate. If there is a way for P to specifically rely on council and the P doesn’t do this then no liability. Mason J said that if a decision is a policy one then there is immunity.

Pyrenees SC v Day (see SM p121) HC 1998 Local council failed to remedy defects that caused a fire hazard. House was burnt down. Council

commenced a remedy by issuing a notice to the prior owner but didn’t follow it up. It was in their statutory power to remedy it.

3 judges said that the doctrine of general reliance is a legal fiction. Brennan J based his decision on Anns and public law. Gummow J said essence of common law duty is control of information about danger. Kirby J showed that the parties were in proximate relationship. Other 2 judges (McHugh J and Toohey J) were in minority. No clear decision to rely on.

Parramatta City Council v Lutz 1988 NSW Council gave P bad advice, she relied on it, and as a result her house was damaged by fire to a greater

extent. Reliance was reasonable. If the council is to be held liable for the damage suffered by a resident of the area, it must be shown that

the circumstances were such as to impose upon the Council a common law duty to take the positive action that would have been necessary to prevent the damage.

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Romeo v Conservation Commission of NT The duty of the Commission was to take reasonable care, not to prevent any and all reasonably

foreseeable injuries or to act as an insurer. The reasonableness of an authority's measures of protection of the public must be judged according

to the prevailing standards of the day.

(2) Defective Products Manufacturers owe a duty of care to the consumer and other people who may be affected by a

defect, despite there being no contract (Donoghue v Stevenson). Lord Atkin’s in D v S says that there must be no possibility of intermediate examination of a product for

liability to be established. This principle has been dropped. Now an intention that an intermediate examination will take place can preclude liability (Grant v

Australian Knitting Mills – Undies caused dermatitis), but not always (Voli v Inglewoon SC). Can claim damages for physical and property damage but not for value of defective item itself. Common law in this area has been largely overtaken by Part VA of the Trade Practices Act 1974

(Cth). This says that regardless of fault or a breach of duty of care, there is strict liability – manufacturer of defective good that causes harm is liable. Defences are listed in the Act.

(2) Defective Structures Structure – building, fixture to land. Economic loss – diminution of value of structure itself could not be claimed for in torts in England. But

in Australia we can recover for economic loss, but unclear to what extent.

Voli v Inglewood Shire Council (p107) HC 1963 Architect put insufficient load bearing materials, so stage collapsed. Architects owe a duty to anyone who enters one of their buildings, and while using it for the

purpose which it was intended, and suffers an injury as a result. Although the council inspected the plans, the possibility of intermediate inspection does not preclude a

duty of care.

Bryan v Maloney (SM) 1995 HC D built house with insufficient foundations. House sold to P. It then became damaged due to D’s

negligent building. Diminution in value therefore pure economic loss. The fact that there was a contract between D and original owner means that a duty of care existed there.

Not risk of interference with trade and normal economic basis of society or indeterminate liability. There was an assumption of responsibility of builder and a known reliance by original owner.

With regard to P, apart from the absence of a contract, all previous features existed because related to an individual structure the class of persons could be easily defined (so no indeterminate liability). D liable.

Australia has taken a different path than that of England in this area, rejecting the principles outlined in D&F Estates.

Builders also owe a duty of care to subsequent buyers, if the structure was designed to be permanent.

Woollahra MC v Sved 1996 NSW Builder built a house for a couple. Couple supervised construction and ordered builder not to use required

waterproofing membrane. P then bought house and asked council for certificate, they didn’t inspect properly. House flooded. P sued council and builder.

The defect was regarded at patent (obvious). Bryan v Maloney was distinguished as there was no assumption of responsibility by builder, or known reliance on builder, but rather on inspector.

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(3) Occupiers’ and Landlords’ Liability

Indermaur v Dames 1866 Regarded an invitee. Judge said where we have a benefit to the landowner then we can attribute back to

that landowner a duty of care relating to defects which are not obvious which the occupier knows or ought to know about and couldn’t be avoided using reasonable care by P.

In the past, an invitee had to bring economic benefit to the house owner. A licensee in anyone who isn’t an invitee or trespasser.

Gautret v Egerton Can’t entrap a licensee. Can’t injure them by knowingly concealing a danger and therefore causing harm.

Australian Safeway Stores v Zaluzna (p111) HC 1987 The respondent entered the foyer area of the supermarket on a rainy day to shop and slipped injuring

herself. Mason, Wilson, Deane and Dawson JJ - The fact the respondent was a lawful entrant upon the land of the

appellant established a relationship between them which alone suffices to give rise to a duty to avoid a foreseeable risk of injury.

Whenever you lawfully enter another’s land, there is an automatic duty of care established to avoid foreseeable injury.

Hackshaw v Shaw (p116) HC 1984 A farmer lay waiting for a petrol stealer on his land to come, and then fired a shot into the stealers car,

where unknown to him, a girl was hiding whom he shot. When a visitor is a trespasser, there is no longer an automatic establishment of proximity between

them and the landowner that gives rise to a duty of care. Here the firing of a rifle into a car was taken to be a situation where reasonable foreseeability of injury to

a class of persons which the defendant was one could have occurred.

Burnie Port Authority v General Jones (p419) HC 1994 P's frozen vegetables were destroyed by fire in the D's building due to negligence of the D's independent

contractor. An occupier is liable to a neighbour for the consequences of dangerous substances and activities

affecting that neighbour. The duty is based on reasonable foreseeability of harm & some additional proximity criteria based on:

1. the status of the occupier with care and control of the property.2. the vulnerability and reasonable reliance of the neighbour.

The duty of care in this situation is non-delegable (ie the occupier must ensure reasonable care is taken even if the damage occurs as the result of the negligent act of a delegate).

Northern Sandblasting Pty Ltd v Harris HC 1997 Cavalier v Pope [1910] AC 428, where only the tenant could sue the landlord for injury caused by

disrepair of a building, was inconsistent with the modern law of negligence. That is, landlords as a class enjoy no special immunity in Australian law from liability. Landlords are liable for defects which cause accidents to their tenants, but are not under a non-delegable duty.

Jones v Bartlett HC 2000 Landlord has duty to licensees (in this case owner’s daughter). They must ensure property is fit for its

intended purpose.

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(4) Rescue Cases: rescuers as plaintiffs There is no defence of novus actus interveniens if the assistance of a rescuer was reasonably foreseeable

to the wrongdoer. There is no defence of volenti if the rescuer was harmed during a genuine rescue attempt (even

professional rescuers are not excluded). The presence of the rescuer must be required and legitimate. Law does not create liability for pure omission (eg. if you walk past while child is drowning and don’t do

anything then you won’t be liable). But this is being changed.

Chapman v Hearse (p118) 1961 CLR Chapman drove negligently, hurt himself, was lying on roadway. Dr Cherry went to help, when Hearse

struck Dr Cherry and killed him. By a third party notice Hearse claimed contribution by Chapman, arguing that Chapman was also liable because he owed a duty to his rescuer.

If a rescuer is injured in course of a rescue they can sue the original tortfeasor in the accident. To determine the existence of a duty of care it is sufficient in the circumstances of this case to ask whether

a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow a collision between two vehicles on a dark wet night upon a busy highway.

Kent v Griffiths (2000) WLR Pregnant asthmatic woman whose doctor called for an ambulance to come urgently, person who took call

said ambulance would be 10min, ending up taking 40min when it was too late (she suffered a miscarriage).

Lord Woolfe said that the delay was negligence in effecting a positive action and that the circumstances are so extreme that floodgates is unlikely. He also used proximity, so the case might not be followed.

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(9) Pure Economic Loss

Negligent advice and misrepresentation; professional and contractual relationships 6 ½ categories:

1. defective structures which render property less value, 2. cost of raising an unwanted child, 3. negligent misstatement, 4. negligent performance of a service, 5. negligent service to third party, 6. negligent destruction of property of third party,7. Perre v Apand.

Pure economic loss is financial loss not being a consequence of personal injury or property damage. Statements are communications (oral, written or conduct) that includes information and advice. When information is passed on to a third party – usually involves auditors, whose report is provided to

company and regulatory companies. The third party in this situation will be an investor, to whom the report may be passed on.

Negligent misstatement – used to only be able to recover if caused by deceit, but changed in 1964:

Hedley Byrne v Heller (p174) HoL 1964 P had client who they were going to made ads for. P checked with banker to see if client had enough

funds. Bank said that they did. But client went into liquidation so P lost a lot of money. A negligent, though honest, misrepresentation (spoken or written) may give rise to an action for

financial loss caused thereby, if there is assumption of responsibility and reasonable reliance. Here there was an express disclaimer of responsibility, so no duty was implied as reliance

unreasonable.

MLC v Evatt 1968 In Australia, Hedley Byrne adopted. P sought information and advice from D concerning an MLC subsidiary, Palmer. D informed P that

Palmers was financially stable so P invested. Palmers went into bankruptcy and P sued MLC for its negligent statement.

Barwick CJ indicated that disclaimers would not always be effective. His four criteria for liability: 1. the information or advice is on a serious or business matter (additional proximity criteria).2. the speaker knows or ought to have known that the recipient is trusting the speaker (additional rf criteria).3. the speaker knows or ought to have known that recipient is likely to rely on advice (additional rf criteria).4. there is reasonable reliance by the recipient (additional proximity criteria).

L Shaddock v Parramatta CC (p179) HC 1981 P asked council whether a property he was going to buy would be affected by road widening work.

Council failed to stamp certificate, P bought property, property was affected. The issue was whether saying nothing about the road-widening by failing to put the stamp on constituted a statement. It did.

Silence can constitute a negligent misstatement. The relationship was not a professional one, but Stephen J said this doesn’t matter and that the situation

was of sufficient gravity. The council had unique control over information that affects the P, so a duty arises in disseminating that

it. Court said a duty will arise when information is either factual or advice. The four criteria in MLC became the authority in Australia.

San Sebastian v Minister HC 1986 Negligent representation by government department. Proposal put forward by council concerning

redevelopment, it was made public, but later abandoned. When it was made public developers bought land with the expectation of making a profit, but then they had to sell it at a loss.

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The majority held that a duty of care could arise in respect of unsolicited misrepresentations when 3 criteria are satisfied:

o representor realises or ought to realise that the representee will trust in the representor’s competence to give advice or information,

o reasonableness of reliance by representee, o if it is reasonably foreseeable that the representee will suffer loss if the words are not true.

A duty of care shouldn’t apply here because it was a government document. It was important that governmental communications with the public should not be prevented because of risk of liability. Also the plans didn’t contain any assurance that they’d be carried out.

Esanda Finance Co v Peat Marwick Hungerfords (SM) SA 1994 The auditors made the audited accounts of a company available to a creditor. The creditor sued for the

economic loss caused by negligent statements. Brennan CJ considered possibility of unlimited liability. He said that you must satisfy:

1. reasonable foreseeability of harm2. P must prove that the D knew or should have known that the information would be passed on to

the P or a class of persons including the P 3. D’s information must be passed on to the P with the intended purpose of persuading P to enter

into the transaction that P does enter4. very likely that the P would enter into the transaction on the basis of the info.

McHugh J argued against the imposition of a duty of this nature on auditors because the cost of audit services will rise and the supply of audit services will be reduced. There would also be severe ramifications for the justice system in relation to cases against auditors, which are very complex and require opinionated witnesses and hard to settle. He also said that investors (the P) are in a good position to protect themselves from loss (can audit themselves, can insure, make a voluntary decision to invest). These reasons combined suggest that liability should not be incurred.

Decision was that no duty of care was owed because the audit report was a statutory duty, not an attempt to solicit investment.

An auditor is under no duty of care to the plaintiff unless the auditor intended to induce the plaintiff to act in reliance on the audit certificate.

It may be assumed that it was reasonably foreseeable by the D that persons contemplating financial transactions with the plaintiff might consult the financial statements and rely upon their accuracy and upon the audit certificate. Those facts, however, fall short of establishing the relationship of proximity necessary to give rise to a duty of care.

Hill v Van Erp (SM) HC 1997 A solicitor prepared a will for a client upon the clients instructions that it was to include a testamentary

disposition to a friend of the client. When the will was being executed, the solicitor asked the husband of the intended beneficiary to attest it, making it null and void. After the death of the client the intended beneficiary sued the solicitor for damages in negligence.

Proximity is not conclusive about whether or not there is a duty of care, other factors must be considered.

Policy factors relating to economic loss: indeterminate liability, interfering with commercial competition.

McHugh J dissented on the basis that there was no economic loss because she had no right to the property (she was simply disappointed because she didn’t receive a benefit).

Brennan J said that this was a novel case so he examined whether a duty of care should be owed. He said that traditional concerns about economic loss aren’t a problem, but he was concerned about the close relationship between a solicitor and client (a solicitor is prohibited from doing anything which would conflict with the clients interests). But he decided that the beneficiary and the client had the same interests and that the very purpose of the will was to ensure Mrs Van Erp got the property. So a duty of care was owed, majority agreed.

Hawkins v Clayton (p187) Solicitor failed to notify executor and beneficiary of will.

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HC held that solicitors were under a duty to take reasonable steps to find the executor and inform him of the existence, contents and custody of the will; they were in breach of that duty, and were liable in damages for the loss flowing from the delay in the executor's taking possession of the estate.

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Careless Conduct or Damage to a 3 rd Party’s Property It has long been established practice to allow recovery for consequential loss of earnings or profits

resulting from damage during rehabilitation or repair of physical or property damage. Generally, the law only compensates persons immediately injured, such as the accident victim himself,

without going to the length of compensating also third persons who, secondarily incur expenses or lose their livelihood, support or expected benefits from their association with him.

Caltex Oil v The Dredge “Willemstad” (p194) HC 1976 The Dredge was negligent in dredging at Botany Bay and severed an oil pipeline, which was owned by

AOR and was connected to the Kernel refinery. Caltex’s oil terminal’s were across the bay, it was their oil in the pipeline, but the pipes were owned by AOR. As a consequence of the damage, Caltex had to transport oil by road which was more expensive.

The court looked at the features of a case which would support a duty of care. The D knew who owned and who used the pipeline and that it existed, there was also a close physical proximity between the D and P, clear negligence by the D towards AOR resulting in property damage.

The court also recognised that the loss was suffered directly by Caltex. Gibbs J: “it is still right to say that as a general rule damages are not recoverable for economic loss which

is not consequential upon injury to the plaintiffs person or property. The fact that the loss was foreseeable is not enough to make it recoverable. However there are exceptional cases in which a defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence, and owes the plaintiff a duty to take care not to cause him such damage by his negligent act”.

Stephen and Mason JJ found that a duty of care to prevent economic loss was owed to a specific individual, namely Caltex, when it could be reasonably foreseen that the individual would suffer economic loss from the negligent act.

Murphy and Jacobs JJ also found the dredge and Decca to be liable for the economic losses.

pto

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Perre v Apand (SM) HC 1999Concerned potato growers in SA, particularly two groups, the Perres and the Sparmans who grew potatoes as commercial interest. Sparman’s potatoes got bacterial wilt, they were grown with seeds from the Apands. But the Perre’s potatoes were fine. Statute said that potatoes within 20km of those with bacterial wilt are banned from entering the market for 5 years. So the Perre’s lost basically all of their market. The court went 6 different ways. Determined that proximity wasn’t useful by 6 judges 4 out of 7 judges agreed with Gordon J by recognising the Apand’s owed a duty of care to the Perre’s, but

they all gave different reasons so there is no ratio. Guadron J used a precise legal rights test (reasonable knowledge and vulnerability), wasn’t really agreed

with. Kirby used proximity and was expressly rejected by rest of court. Callinan tried to apply Caltex but didn’t do well. Gummow, Gleesson, McHugh and Hayne made important judgements. Gummow J (agreed with by Gleeson CJ) used salient features, not particular principles and found duty

because:o defendant knew (or ought to have known) that the plaintiff may suffer loss.o plaintiff had no avenue of protection against the risk of loss.o interests of the plaintiff are affected by the defendant's actions.o liability is not indeterminate (looked at relationship between Perre and Apand).o no problem with interfering with normal commercial relationships because the Apand’s brought

the seeds into SA illegally anyway. Further per Gleeson CJ: A duty of care exists in this case because:

o physical propinquity of the plaintiffs' land to the affected land.o vulnerability of the plaintiffs was known to the defendant.o defendant exercised control over sowing seeds on the affected land.

McHugh said that you can only claim for immediate loss suffered from act of D, not those “ripple-on” losses. He also said that basically protecting commercial relationships is about protecting a community standard so you have to show that the D has done something to offend this (eg. what D did was illegal). He looked at the established categories of economic loss and found 5 criteria for a successful claim:

1. plaintiff's loss was reasonably foreseeable.2. plaintiff is a member of a class whose members were ascertainable by the defendant.3. plaintiff was vulnerably exposed to the defendant's conduct (P can’t protect itself from type of

harm).4. defendant knew of the risk and the consequences to the plaintiffs.5. Such a duty will not result in indeterminate liability or interfere with commercial freedom.

Kirby, Hayne, Callinan JJ: follwed 3-stage test used in the Caparo case:1. reasonable forseeability of harm.2. close relationship of proximity or neighbourhood.3. it is fair, just and reasonable to impose a duty.

Further per Kirby J: 'Fair, just and reasonable' involves balancing competing policy arguments (e.g. indeterminacy and commercial competition)Further per Hayne J: 'Fair, just and reasonable' involves two essential factors - indeterminacy and commercial competition.Further per Callinan J: Proximity requires a special relationship and determinacy of a relatively small class. 'Fair, just and reasonable' involves the defendant having an ability to control the loss and special circumstances to justify compensation.

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10. The Standard of Care & Breach of Duty Breach of duty, 3 stages:

o determine reasonable person (question of law) – what characteristics should we take from D to apply to reasonable person;

o ask how the reasonable person would respond to the risk and whether the risk was reasonably foreseeable to determine the standard of care (question of fact and law) – this is different in every case because it is partly a question of fact and so has no precedential value;

o compare what the D has done with the standard that the law imposes (question of fact).

The relevance of the defendant’s characteristics Two extremes of reasonable person – either use a completely objective person (common characteristics)

or completely subjective (apply all the characteristics of the D and determine whether he/she acted as best as he/she could).

Characteristics of D which can be imputed to the objective person – Children - standard of care is that reasonable person of that age and experience, unless they are

performing uniquely adult tasks as in McHale v Watson. Physical incapacity - no allowance made unless incapacity is sudden and overwhelming. Eg. K & S

Freighters v Nelmeer Hoteliers where a man had a heart attack and consequently drove into a hotel. If he was unaware of the risk of a heart attack this would preclude negligence, but because there were warning signs and he had medication he was liable).

Mental incapacity – doesn’t adjust the standard of care. Eg. Carrier v Bonham (SM) – Schizophrenic man stepped in front of bus to commit suicide, he was still liable to the bus driver who was injured because the driver still deserved compensation.

Experts – May be held to a higher standard of care if you represent yourself as an expert in a particular field (Jones v. Manchester Corporation)

Beginners – Standard not usually lowered because you lack competence. Eg. a learner driver is held to the same standard as a normal driver. There is still a need for compensation. But between learner driver and instructor there may be a reduced standard because the instructor knows the lack of skill of the learner. Eg. Cook v Cook (p227) - the P told the D to turn left, D crashed. The standard of care was lowered because the D was a beginner and the P knew this. But although the standard was modified, D still liable because she acted below this.

Limited resources – Only relevant when a situation has been thrust upon the D that they cannot escape, not in a voluntary assumed circumstance. Eg. a company selling untested bottles is still liable despite the fact they have inadequate resources. Exceptions:o Danger that arises naturally on land must be removed if it is within the resources of the D to

do so (eg. Goldman v Hargrave).o Duty to ensure that trespassers don’t come to harm on your premises occurs if it is reasonably

within your resources (eg. Herrington v British Railways Board)o Public authority is required under statute to perform particular functions and has limited revenue to

do so. The authority is allowed to say that it didn’t have the resources to completely fulfil its duty (eg. filling all the potholes on a road). Similarly, inspecting public land for defects can be limited by resources. The court asks what the authority could actually do (eg. Brodie v Singleton Shire Council).

In Australia, a passenger who knowingly and voluntarily rides with a drunken driver cannot expect any degree of care in driving so far as it is affected by the drunkeness (where the plaintiff knew the defendant was impaired and voluntarily accepted the risk the defendant cannot be liable in negligence): Insurance Commissioner v Joyce

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Response of the reasonable person; foreseeable risks & relevant considerations To set the standard of care – ascertain whether or not the risk was reasonably foreseeable; ascertain what

the reasonable person would have done by way of response to the risk. An accident is rf if the possibility of it occurring is not far-fetched or fanciful (Wyong v Shirt). With rf you have to anticipate the negligent conduct of others (Bus v Sydney City). Have to consider what is reasonably foreseeable at the time of the alleged negligence, the state of

knowledge at the time (Roe v Minister of Health). Once it’s established that the risk is reasonably foreseeable we look at how the reasonable person would

respond to that risk. Factors used (see Wyong Shire Council v Shirt): o Magnitude – what’s the magnitude of the damage that’s going to occur.o Probability – how likely is the event to happen?o Expense – Burden on the D of avoiding risk (cost).o Difficulty – What’s the difficulty in avoiding the risk?o Utility – Is there a social purpose in the community experiencing that risk (eg. ambulances or fire-

engine rushing to an emergency).

Bolton v Stone 1951 HoL Woman walking around cricket ground was hit by a ball coming from the cricket ground. Ball had been

hit out of the ground 6 times in 30 years so there was a very very small chance of the accident happening. Magnitude - could die, most likely just bruise; probability - very low; expensive to prevent. Although the risk was foreseeable, the P lost. Must consider expense, difficulty and inconvenience of

removing risk. Even if foreseeable an extremely small risk of harm may be disregarded. Lord Oaksey: "The standard of care in the law of negligence is the standard of an ordinary careful man,

but, in my opinion, an ordinary careful man does not take precautions against every foreseeable risk…Many foreseeable risks are extremely unlikely to happen and cannot be guarded against".

Wagon Mound (No. 2) (p286) 1967 Unlikely that oil spill would catch fire, but it did and the boats were destroyed. Remote possibility but

still reasonably foreseeable.

Wyong SC v Shirt (p222) 1980 HC P, an inexperienced water skier, suffered personal injuries in when he fell in shallow water. The D

council had dredged a channel in the lake and had erected “Deep Water” signs adjacent to the channel. P maintained the signs were misleading and brought an action for negligence. He won.

Even a small risk may be reasonably foreseeable if it is not far-fetched or fanciful. Wilson J. dissented from the main judgement of Mason J. and the concurring judgements of Murphy,

Stephen and Aikin JJ that there was a distinction between foreseeability of risk and probability or risk.

Bus v Sydney County Council (p232) 1989 HC The Ps husband, an experienced electrician, was electrocuted while working with an employee of the D’s.

If the employee had covered a service fuse cabinet before leaving the room, the husband would not have inadvertently come into contact with the live terminal. P won.

Following McLean v Tedman (1984), the relevant standard of care should also encompass inadvertence or lack of reasonable care on the part of the person exposed to the risk.

Mclean v Tedman Employee working on a garbage truck saved time by driving up street in only one direction and crossing

the road by foot. He was hit by a car. Because the employer didn’t tell him not to the employer was liable.

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Rootes v Shelton (p227) 1967 HC The appellant was an experienced water skiier carrying out a dangerous manoeuvre, he became blinded by

spray and hit a stationary boat. He sued his boat driver for failure to take due care in the control of the boat and for failure to warn him of the presence of the stationary boat.

Barwick CJ: Engaging in sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime. This was a risk outside what the water skiier had consented to.

Romeo v The Conservation Commission 1998 16 year old girl went to a popular lookout, got drunk and accidentally walked off the cliff. Accident had never happened before, the commission was responsible for 8 km of cliff. Magnitude - almost certain death or serious injury; probability - low, most people don’t walk off cliffs so

the danger is obvious; expensive - too high. Commission justified in doing nothing, duty not breached. Brennan CJ.: The duty is to exercise reasonable care to prevent injury from dangers arising from the

structure or condition of the premises which are not apparent and are not apt be avoided by the exercise of reasonable care on the part of the entrant. This statutory duty does not extend to ensuring the protection of entrants who cannot take reasonable care for their own safety. D owed P a duty of care, however D had taken reasonable care.

Caledonian Collieries v Speirs 1957 HC Freight trains on a railway loop. Train line was on a descent and there were lots of high-use crossings so

if train got out of control the magnitude of damage would be high (P was killed) and probability to too low. Preventing it would require to make the train derail, which court said was reasonable even though property damage would occur.

The magnitude and probability of risk was high enough to warrant this prevention. Where a safety measure has itself a degree of expense and risk the reasonable person must consider

whether such drastic measures are needed to avert more serious consequences.

Dowsing v Goodwin (1997) MVR A sudden and unheralded incapacitating event, such as a bee sting or a stroke, may preclude a finding of

negligence where the driver had insufficient time to aver the ensuing accident…Even when the driver is subject to a sudden and unavoidable onset of pain or other disabling factor, he or she will be expected to exercise reasonable care by slowing down or pulling over to the side of the road if such a reaction to the emergency is possible.

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Community standards and professional standards; the role of expert opinion The standard of care is not determined solely or even primarily by reference to the practice followed or

supported by a body of opinion in the relevant profession or trade. It is for the court to adjudicate on what is the appropriate standard (Rogers v Whitaker)

The standard of care is determined by reference to community standards. Reasonable care is determined by what ought to be done, not necessarily by what is done. If a common practice was the sole determinant of the standard of care, entire industries would be free of liability by adopting similarly unsafe practices

Rogers v Whitaker (p235) 1992 HC P suffered from blindness in one eye and underwent a procedure to restore it. Instead, she lost all sight in

both eyes. Chance of this happening was 1 in 14 000 and is an inherent risk in the procedure. Court had to consider if it was negligent of the doctor not to advise P of this risk. Doctor argued that it was the professional opinion that it was unnecessary to warn of such a low risk

(standard set in Bolam v Friern Hospital). He wasn’t negligent because other doctors wouldn’t have warned either.

The Bolam principle states that the standard is assessed against what other doctors would have done rather than against community expectations.

In this case the community expectation was that the doctor should warn about material risks (a risk which a reasonable person would be likely to attach significance to) rather than subjective risks (a risk which the particular P believes is important).

The Bolam principle was rejected for giving information. Professional opinion was not needed to determine the appropriate level of disclosure. The judge decided that community standard must be met.

The negligent conduct was the failure to furnish P with the information she had repeatedly indicated she wanted (even though she had not directly asked for it).

The test is: "Would a reasonable person in the patient's position attach significance to it?" The patient may not know what question(s) to ask. The professional is under an obligation to inform the patient based on what is known or ought to be known about the characteristics of the patient.

If the Bolam principle was followed on the provision of information, the medical profession could effectively determine the scope of the duty as well as what a reasonably prudent professional would do to prevent the breach of that duty.

Roe v Minister of Health 1954 QB The anaesthetists could not foresee that the phenol would contaminate the contents of the ampoules so

they had no reason to use dark blue dye as a precaution. A person cannot be liable for failing to take precautions against an unforeseeable risk if that person

acted according to the current state of knowledge at the time of the incident.

Rosenberg v Perciville Woman suffered disorder of the jaw after an operation. There was a 10% chance of this disorder

occurring. Court held that the risk here wasn’t material, so a reasonable person wouldn’t consider it a significant one. Even if the warning was given, the P would have gone ahead anyway (a subjective test is used to

determine this).

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Proving Negligence & res ipsa loquitur P must prove their case on the balance of probabilities. It is then a question of law (judge decides) whether there is sufficient evidence before the court for a

finding on the balance of probabilities to be made. Whether negligence actually occurred is then decided as a question of fact (by jury or judge). It is necessary to show that on the circumstantial evidence an inference of negligence can be made. Res ipsa locquitur – Look at the accident as it happened, “the thing speaks for itself”. In Australia this

only raises an inference of negligence which can then go to the jury (who then determines whether there was negligence) but in England it raises a presumption of negligence.

It is a rule of evidence (not a rule of law) under which negligence may be inferred from evidence of the occurrence of the thing itself. There are three rules:

(1) A set of circumstances where there is no explanation for the occurrence (Byrne v. Boadle).(2) The harm has to be of such a kind that will not ordinarily happen if proper care is being taken.(3) The thing causing the accident has to be within the defendant's exclusive control.

The P must prove the facts based on the evidence but the D doesn't have to give evidence to disprove negligence. However, the failure of the D to give evidence may lead to adverse inferences against him.

Holloway v McFeeters (p240) 1956 CLR An accident left the P dead, and the driver got away (where you have an uninsured or unidentified driver

then you sue the government instead, called the nominal defendant). All they knew is that the P’s body was found in a pool of blood with alcohol in blood stream, tire marks with blood, accident occurred at night.

Majority said that all that is necessary is that from common experience it is more probable than not that the D’s negligence caused the accident.

It is open to the jury to make a finding of fact making an inference from the evidence available based on the balance of probabilities.

The tire marks that led up to the body suggested excessive speed and the fact that the driver left were enough to suggest that the driver had been negligent.

Mummery v Irvings (p242) 1956 HC Man walked into a timber yard and was hit by a piece of wood coming from a circular saw. He raised

ipsa locquitur and said that the fact that there was a splinter of wood flying in the air means negligence should be inferred. But because there was an explanation of where the wood came from the court’s attention was focussed on why it came from the circular saw.

This explanation meant that res ipsa locquitur couldn’t apply (for it to apply they must not have known what caused the splinter of wood).

The evidenciary principle of res ipsa locquitur from which an inference of the facts required for negligence is established can be displaced by a defendant's evidence.

Schellenberg v Tunnel Holdings 2000 HC P was using a pencil grinder which relies on compressed air which was delivered to the grinder by a hose

pipe. The pipe came off and struck the P in the face, causing him to put his back out. HC said that res ipsa locquitur doesn’t apply because there was an explanation why the pipe hit the P

(it came loose from the coupling, so attention is then drawn to why it came loose), we don’t know whether the pipe coming loose is out of the ordinary.

GIO v Best Accident at an intersection which left one driver dead and the other suffering physical injuries and

amnesia. The position of the cars was inconclusive. Court held that there wasn’t sufficient evidence to make an inference.

Scott v London 1865 The plaintiff was a customs officer on duty at a privately owned warehouse. Several bags of sugar fell

from an upper storey of the warehouse and injured the plaintiff. 3 things must apply:

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1. absence of explanation of how accident occurred2. it is not an accident that would have occurred in the ordinary course of things without a lack of

care on someone’s part3. the thing that has caused the accident is under the management and control of the D.

Where the defendant has control of the item causing damage the circumstances of the accident alone can provide reasonable evidence of a breach of duty.

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11. The Requirement of Damage

Causation

“But for” test; common sense; policy; omissions; causation and chance ‘But for’ test: The plaintiff must prove on the balance of probabilities that the defendant's breach of duty

was a cause (there may have been other causes) of the plaintiff's injury. For single causes, the plaintiff applies the 'but-for' test (plus common sense plus experience) in

determining whether the breach should be regarded as a factual cause of the harm. Areas in which the courts have modified the but for test (use Mason CJ’s common sense principal

from March):o Actions of the D have fortuitously placed the P in the way of further harm.o Where there are multiple simultaneous acts which are sufficient to cause the damage (eg. two ppl

shooting the P at once, the but for test would allow them to both escape causation).o Multiple cumulative acts sufficient to cause the damage (eg. 4 companies each contribute 1 unit of

pollution, and you require 3 units to become ill, but for test would allow companies to escape causation).

o Where the conduct complained of is an omission rather than a positive act. With an omission the harm would have happened anyway (see Nagle v Rottnest Island)

o Where there is a loss of a chance and that chance of something happening <50%. (eg. paradigm example: P buys a lottery ticket, lottery goes ahead but P finds out that his ticket didn’t go into the draw). Occurs when a solicitor doesn’t file a claim in time so client loses chance of succeeding in that action. NSW Court of Appeal said that P should be compensated for that loss (if 20% chance of winning, P gets 20% of likely payment) - Golec v Scott and Sellers v Adelaide Petroleum. Also where there is a medical illness that is misdiagnosed so chance of recovery removed (but this is usually considered personal injury) - Naxakis v Western General Hospital.

o An intervening act breaks the chain of causation. Before we can say that a failure to warn was causative of injury then we must show that the P would have

relied on the warning (Nagle v Rottnest Island). The court negated the defence of contributory negligence by finding only one effective or real cause of the

accident.

March v Stramare (p246) 1991 HC P, drunk and speeding, drove into D’s truck which was parked straddling the centre of a six lane road.

Trial J. apportioned responsibility 70% to P and 30% to D. Court said that every accident has many causes, some tortious some not. There were two causes in the

accident in this case that satisfied the “but for” test (however this is a negative test for liability). The court replaced the ‘but for’ test with policy, commonsense, value because the test was too rigid.

Mason CJ: The ‘but for’ test is not the exclusive test of causation. o Causation in law relates to the assigning of responsibility and not, as in science, to phenomena to

which an event is attributable. o Apportionment legislation has abolished contributory negligence as a defence and the last opportunity

rule.o The common law position is to apply common sense to the facts, with consideration also given to

policy and value judgements. Deane J: The 'but-for' test is not a comprehensive definitive test of causation because:

o The clear weight of authority is against the substitution of such a formularised test of causation for a common sense idea of what is meant by saying that one fact is the cause of another.

o Unqualified acceptance of the test as even a negative or exclusionary test of causation..would lead to the absurd and unjust position that there was no 'cause' of an injury where there were present two independent and sufficient causes of the accident.

o The mere fact that something constitutes an essential condition of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a 'cause' of that occurrence as a matter of either ordinary language or common sense (A person having a head is not a cause of his being decapitated in a negligent manner).

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"The question whether conduct is a 'cause' of injury remains to be determined by a value judgment involving ordinary notions of language and common sense."

Barnett v Chelsea Hospital 1969 QB P was poisoned and the doctor told them to go home. No causation, it didn’t satisfy the ‘but for’ test

because the person would have died regardless of whether they were sent home.

Bennett v Minister of Community Welfare 1992 HC In 1973 P was made a ward of the state and detained in an institution in the care of the department and

under the guardianship of the Director of the department. He was put to work, without adequate training or supervision, operating a bench saw which lacked an adequate guard. A personal injury (the loss of 4 fingers) was suffered by P while operating the saw. P had been entitled to recover damages against D at common law. This recovery was statute barred before he became aware of that entitlement in 1982. In failing to obtain independent legal advice, D breached the common law duty owed to P to avoid his suffering loss and damage from his failure to exercise his entitlement to damages for the personal injury he had suffered. D contends that P’s loss was caused by incorrect legal advice obtained in 1975.

Held: The plaintiff would not have needed legal advice in 1975 if the director had provided independent legal advice after the accident, as was required under his common law duty of care to the plaintiff; therefore the legal advice given in 1975 could not be a novus actus interveniens.

Ellis v Wallsend District Hospital (1989) NSW P was rendered a quadriplegic following an operation performed at the Hospital. The doctor who

performed the operation failed to warn the P of the risk of paralysis or that there was a low probability of success of the operation.

Held: The subjective test (what the P would most likely have done if given full information) was preferred to an objective test (what a reasonable person in the P’s position with full knowledge of the procedure would have done).

Chappel v Hart (SM) 1998 HC The D was a specialist who performed an operation on the P's oesophagus. During the operation the lining

of the oesophagus was perforated causing an infection which resulted in the P's voice being affected. She specifically asked D about such risks but received no warning. The D sued on the basis that if she had received such a warning she would have delayed the operation until a more experienced surgeon became available.

The court will infer causation in duty to warn cases where there is a failure to give a warning of a risk and that risk materialises.

It is the up to the D to disprove causation ( provide evidence that the P wouldn’t have relied on a warning anyway)

Nagle v Rottnest Island 1993 CLR P dived into rockpool and hit his head on a rock. He claimed the D was negligent for not posting a warning sign. But to prove causation must also show

that P would have relied on the sign and not dived in. Before we can say that a failure to warn was causative of injury then we must show that the P would

have relied on the warning and not gone ahead with the act. In Australia we rely on a subjective test – would the P under the circumstances have relied on the warning and altered their conduct accordingly?

Sellers v Adelaide Petroleum Two companies competing for a contract with P. Second company bid more than it could pay so contract

dissolved. Because the P lost the chance of a contract with the 1st company, they were awarded compensation.

Successive injuries and multiple sufficient causes 1st tortfeasor’s liability stays the same if 2nd tort unconnected, 2nd tortfeasor liable for extra

damage (Baker v Willoughby).

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Vicissitudes of life principle - liability of 1st tortfeasor is reduced if it is shown that 2nd, non-tortious event, was part of the vicissitudes of life (Jobling v Associated Dairies).

Baker v Willoughby 1970 HoL P injured his ankle badly in a car accident. He suffered a drop in earning capacity because he could do

only light work. While preparing to sue over his ankle injury, the leg was amputated following an incident involving an armed robbery. The issue was whether P could seek damages against D for the injured ankle he no longer had.

It was held that P’s damages should not be reduced because of the damage from the second tort. The loss caused to P by first tort were not diminished by the second tort. P is not compensated for the physical injury but for the loss he suffers as a result of that injury. 2nd tortfeasor only responsible for the additional damage caused.

Jobling v Associated Dairies (p259) 1982 HoL P suffered an injury at work which limited his future earning capacity. Before the trial commenced, P was

diagnosed as suffering from an unrelated neck and back condition which rendered him totally unfit to work.

The principle of concurrent causes from Baker v Willoughby is irrelevant to non-tortious supervening events.

To be sure that the P is not over compensated a non-tortious act which is simply a vicissitude of life must be considered and damaged discounted accordingly.

The “vicissitudes” principle is a well established tool in determining damages. To ignore a known “vicissitude” (an independent illness which develops after the tort) is to place the P in a position better than he would have been in if it weren’t for the accident. This defeats the process of restitutio in integrum (restoration to the original position).

Remoteness of damage

Reasonable foreseeability test Liability of D limited by remoteness of original act. Dealing with reasonable foreseeability of type of damage and general manner of its infliction. Reasonable foreseeability of harm is enough if direct physical contact (doesn’t include physical injury

resulting from omission).

Wagon Mound No. 1 (p264) 1961 Wharf at Darling Harbour burnt by oil spill causing rag to catch fire. Held that it was not reasonably

foreseeable that oil would ignite. The foreseeability of the damage actually suffered was the effective test (rather than damage direct or

probable consequence from Re Polemis). The test of liability for injury caused by the fire is foreseeability of injury by fire. claim was rejected.

Wagon Mound No. 2 (p268) 1967 Two boats burnt due to oil spill, finding of facts different from No. 1. It’s possible but very unlikely that oil would ignite. A reasonably foreseeable event is one that would occur to a reasonable man in the D’s position and

is not far-fetched.

Doughty v Turner Manufacturing Lid dropped into cauldron of burning liquid. Expected result would be splashing (scientific knowledge at

the time didn’t know it could explode), but explosion occurred instead. Manner not reasonably foreseeable. The damage was too remote because it was not just a variant of the different ways of getting burnt (c/f

Hughes v. Lord Advocate). It was a completely different category of harm from that which could have been reasonably foreseen. This situation may have been different if the plaintiff was splashed directly at the moment when the lid fell in.

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“Egg shell skull” rule

Nader v Urban Transit Authority (p273) 1986 NSW Young boy suffered injury after getting off moving school bus. He suffered from Ganser Syndrome. The

onset of the syndrome may also have been related to the child's reaction to his parents over-protectiveness. There was also in the a failure by P to obtain proper medical treatment at the appropriate time.

Court held that syndrome wasn’t too remote as it fell within the boundary of reasonable foreseeability. Has to be reasonable foreseeability of type of damage (p275) and manner.

McHugh JA: The defendant must take his victim as he finds him (Smith v Leech Brain & Co Ltd [1962]); and that includes the environmental factors impinging upon the victim (eg. familial circumstance). The failure of the plaintiff parents to obtain adequate medical treatment did not relieve D of responsibility for the condition as the causal connection between the accident and the condition remained.

Smith v Leech Brainy 1962 QB P received a burn to the lip from molten metal at work. Ds failed to supply him with protective clothing.

The burn on the lip aggravated an existing condition which led to the plaintiff developing cancer from which he later died.

The reasonable foreseeability test is applied to the first form of the damage and not to the consequences of that damage. It was reasonably foreseeable that P's lip could become damaged, so not too remote. The 'egg shell skull rule' is then applied. If the plaintiff is particularly sensitive to a burn on the lip then it goes to the extent of the damage rather than the cause.

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Causation & remoteness in cases of intervening events & intervention by 3rd parties Three types of intervening causes:

1. intervening conduct which is voluntary (eg. March v Stramare; Dorset; Chomentowski; Haber)2. act is an independent and unreasonable action3. act is purely coincidental

D is not liable for consequences beyond intervening cause – modification of ‘but for’ principle. If the intervening event is a reasonably foreseeable consequences of the original tort, D may be held

liable for the consequences of that intervening act (Mahoney v J Kruschich).

Home Office v Dorset Yacht (p150) 1970 Duty was to prevent voluntary conduct (prisoners escaping), so voluntary conduct is not an

intervening cause.

Chomentowski v Red Garter Restaurant 1970 NSW P was employee who had to take nightly earnings to the bank safe. One day he was mugged. It was held that the employee had a duty to prevent P being mugged. Voluntary act of mugger not an intervening cause. An employer has a duty of care to safeguard employees from being injured by third parties while those

employees are engaged in activities on behalf of the employer.

Pitt Son v Proulefco (p284) 1984 CLR D’s were bailees (warehouse keepers). Fence around warehouse not good and one night an intruder set

fire to the warehouse. Duty of bailee is to use reasonable care to protect item coming to harm. So voluntary conduct of

intruder not an intervening cause.

Haber v Walker (p278) 1963 P in car accident due to negligence of D. P suffered severe injury and committed suicide. Claim brought

on P’s behalf under Wrongful Deaths legislation. Had to show that P’s death was caused by D. The husband's suicide cannot be considered an intervening act because in order for it to be sufficient to

sever the connection, it must ordinarily be either:1. Human action that is properly to be regarded as voluntary, or2. A causally independent event the conjunction of which with the wrongful act or omission is

by ordinary standard so extremely unlikely as to be termed a coincidence.It was found that in committing the suicide, the plaintiff's husband was suffering from a mental disorder resulting from the accident which negated any voluntary action. He was under emotional and physical duress. D liable.

Chapman v Hearse (p118) 1961 CLR Negligent act of Hearse was a rf consequence of Chapman’s negligent act. The mere fact that an act has the quality of being tortious does not make it an intervening cause. What constitutes a novus actus interveniens is a matter of “circumstance and degree” ie. the context of the

case.

Mahony v Kruschich (p282) 1985 HC Held an employer liable for injuries an injured worker received at hospital as well as injuries received on

site. It was within the foresight of the D that the P would receive medical treatment following the injury.

It is also foreseeable that there may be some degree of negligence involved in this treatment. So employer liable.

However, the original injury does not carry the risk of medical treatment or advice that is inexcusably bad. This would be beyond the foresight of the defendant and therefore constitute a novus actus interveniens.

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12. Defences to Negligence

Conduct constituting contributory negligence About P failing to use reasonable standard of care with respect to their own safety. It is not necessary for

this failure to be a cause of the accident only for damage to occur. First recognised at beginning of 19th century as complete defence. That was changed by statute in

Australia and England (apportionment legislation). Some states in US still allow it as a full defence. To make a defence of contributory negligence, D must show that the P failed to use reasonable care,

and that this failure was a cause of the damage, and that the damage was not too remote. Breach of duty question for contributory negligence modified:

o Agony of the moment: in Caterson v Commissioner for the Railways (p365) P assisted friend getting on a train. While P was getting on train, it started to move. P was concerned because his son was left on the platform so he jumped. Train wasn’t moving that fast but P still injured. Lack of communication cord and lack of warning about moving was negligence of D. HC said that P acted as a reasonable person would have done because he was put in the agony of the moment, even though he failed to care for his own safety. No contributory negligence.

o Where an employee or another person is engaged in repetitive and monotonous work then momentary inadvertence or lack of concentration may preclude contributory negligence (Commissioner for Railways v Ruprecht - P had to continually cross railway).

Jones v Livox Quarries (p363) 1952 QB P, who was employed at a quarry, was riding on a towbar attached to the back of a traxcavator. In so

doing, he was defying his employer's order. While almost stationary, another vehicle crashed into the back of the traxcavator and P was injured.

Denning LJ: The test for contributory negligence is one of foreseeability and not causation. Once contributory negligence has been established the consequences depend on causation. In this case the P placed himself in a position of danger. He failed to take reasonable care for his own safety and this carelessness contributed to his own injury.

Singleton LJ: The test for contributory negligence is whether or not the plaintiff's conduct contributed to the accident. In this case the plaintiff exposed himself to a risk which a prudent person would not take and this contributed to the accident.

Froom v Butcher (p366) 1976 The accident was wholly the fault of D. P's car was fitted with seat belts but he wasn't wearing one. The

damage to the plaintiff's hand would have occurred in any case. However, the chest injuries would have been less severe if a seat belt had been worn.

Held: a reasonable person with reasonable foresight would have been wearing a seat belt. The plaintiff contributed to the degree of damage.

It is sufficient that the contributory negligence was a cause of the damage rather than a cause of the accident itself.

The apportionment legislationLaw Reform (Miscellaneous Provisions) Act1965 (NSW) (p9 of statutory extracts) s 9(1) Contributory negligence does not defeat a claim, but does reduce damages to an extent the court

thinks just.

Pennington v Norris (p367) 1956 CLR How far has D deviated from standard of care, and how far has P deviated from standard of care.

This gives us our apportionment of damages. eg. if P deviated from his standard of care by 10%, and D deviated from her standard of care by 40% then

P is 20% liable and D is 80% liable. Both P and D must satisfy ‘but for’ test.

Motor Accidents Compensation Act 1999 NSW (p17 of statutory extracts) s138 (1)

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Contributory negligence must apply when driver is drunk; passenger knows driver is drunk; injured person not wearing a seatbelt or not wearing a helmet when required by law to do so.

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Voluntary assumption of risk Volenti non fit injuria - “voluntary assumption of risk” – the P has assumed the risk of injury. This is a complete defence, not apportionment. Normally referred to as volens. Sciens means knowledge of the risk. Must show: knowledge of the risk (P knew of risk); consent of undergoing that risk. Courts require a high level of proof that the plaintiff consented to the risk. The principle involved is that

no wrong can be done to one who consents to it. Consent must be to both the physical conduct (harm) and to the denial of legal recourse (Nettleship v

Weston). There can be express consent such as accepting the conditions of an exemption clause (Buckpitt v. Oates).

The language in such an exemption clause must be clear and concise. The test of whether a plaintiff consented to the risk is one of actual knowledge rather than objective

knowledge (Scanlon v. American Cigarette Company). Usually applied to employment and sporting situations. With relation to employment 150 years ago all risk was taken on by employees to insulate employer from

liability and to prevent employee carelessness.

Bowater v Rowley Regis Corp. Situation of employees was recognised, particularly the economic duress and employee is under (they are

required to undergo risk because of the need to work).

Joseph Smith v Charles Baker and Sons (p354) 1891 P was a driller at quarry, rocks were carried by hoist over where he was working. A rock fell and injured

the P. D argued that P knew of the risk and assumed it. Court said that in fact the evidence went against volens because when P was aware of rocks above him

he’d get out of the way and complain to the employer. So while P had knowledge of risk, he did not assume the risk.

ICI v Shatwell (p356) 1965 AC Two brothers and another guy were shot-firers and had to test various detonators that were in place. They

realised they had forgotten necessary equipment so one of them went in dangerous zone to get it. Other two didn’t wait and detonator blew up and injured P.

The company had done everything it could do to make employees stick to safety regulations, so volens was an available defence and was successfully made out.

Rootes v Shelton (p361) 1967 CLR A water skier involved in a formation in which he had to swing out wide, and he struck a stationary boat.

Driver was responsible to signal about presence of boat and didn’t. Court said volens didn’t apply because there was a system in place to avoid the risk, and this was not

carried out. Risks that are inherent in a sporting activity are distinct from risks that the participants try to

avoid.

Morris v Murray 1991 P wanted to fly in the defendant's plane as a passenger. P drove the pilot to the airport. Both were drunk.

The airport was closed. P helped start the plane and put the radio onto the right frequency. The plane crashed.

The court held that the plaintiff must have been aware of the nature of the risk because of his actions leading up to the crash. He freely and voluntarily consented to that risk.

The degree of intoxication will help decide whether or not the plaintiff freely consented to the risk.

Motor Accidents Compensation Act 1999 (NSW) (p18) s140(1) Volens defence not available for motor accidents but if it would’ve been the damages are reduced

accordingly.

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Illegality Act of P is an illegal act, ie in breach of criminal law. Acts as a complete defence but it is not really a defence at all, it works like a defence by precluding the

court from proceeding with an action. The plaintiff and the defendant may act alone or together. The harm or injury must be related to the illegal conduct.

Gala v Preston (p215) 1991 CLR 2 guys stole car, D was drunk and crashed. Illegality defence successful. Brennan J said that the fence of illegality preserves the normative influence of the criminal law. A duty of

care should be owed if it doesn’t impair this. Toohey and Dawson JJ rejected the issue of 'proximity'. Mason CJ, Deane, Gaudron and McHugh JJ: Because of the joint illegal activity, there was only one

relevant relationship between the parties, the illegal activity, and the parties could have no reasonable basis for expecting that the car would be driven according to the ordinary standards of competence and care.

Smith v Jenkins The perpetrators' vehicle crashed while fleeing from the scene. The plaintiff passenger was injured and

sued the driver. The court refused to further consider the action because the harm was immediately related to the

illegal conduct. Illegality defence successful, no duty of care.

Progress and Properties v Craft P and D larking around on a goods hoist. D accidentally slipped and made hoist injure P. Illegality

defence not successful.

Harrison v Jackson 1978 HC P and D went driving, both were unlicensed but competent. Court still said a duty of care could be owed. The standard of care could be established because the fact that the driver had a suspended license had no

causal relevance to the accident. The defence of illegality will only apply when the illegal activity bears upon the applicable standard

of care.

Henwood v The Municipal Tramways Trust (p374) 1938 CLR Illegal to put head out of tram window, but P did because he had to vomit and was injured. There is no principle that makes it impossible for a plaintiff to claim simply because he was at the time

breaking some provision of the law. The purpose of the by-law was to maintain the safety of passengers and not to protect the trust against

damages that might follow from a passenger leaning out of a tram. An action may not be defeated by P's illegal conduct if the law was made for the safety or benefit of

P.

Italiano v Barbaro FCA 1993 P and D were both involved in a criminal enterprise to defraud an insurance company by the staging of a

car accident. While on the way to stage the accident the two parties were involved in a real one. The mere fact that the parties were participating in a criminal activity is not enough. The illegal

activity must impinge on the way the vehicle was driven so that an applicable standard of care could not be ascertained.

The facts indicate that this was the case therefore, in terms of public policy, no duty owed.

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13. Concurrent Liability Two or more tortfeasors are responsible for the same damage. Vicarious liability – when a tort is committed in the course of employment, the employer is vicariously

liable and can be sued. Non-delegable duty – where an independent contractor retained by the principle is injured by a 3rd party.

Actions against joint tortfeasorsXL Petroleum v Caltex Oil (p478) 1985 HC P bringing action against 2 joint tortfeasors – Turnbull and Caltex. P selling petrol in NSW, had possession of land in 1970. Caltex had installed 3 tanks on land in 1953, but

at no time since was owner of land or tanks. Caltex employee phoned industrial plumbers (Turnbull) to spike tanks to render them unfit for use, as Caltex believed they owned tanks.

More than 1 judgement can be given against joint tortfeasors for damages caused by a joint tort, whether damages are given in the same or different actions.

There is no principle preventing pl from recovering different sums from different joint tortfeasors if separate actions brought. The same is true if all sued in one action.

Vicarious liability for employees’ torts

Relationship of employer and employee To ensure that an employer is liable for torts committed in the course of his/her business. There is no allegation of fault, it is a tort of strict liability based to the notion that the employer can

afford the loss. An employer controls another.

Zuijs v Wirth Bros (p388) 1955 HC Two acrobats had an accident due to the negligence of one of them. Employer claimed he couldn’t

control the acrobats’ actions because they were trained professionals. HC said the employer does have authority to control: what acts they perform, power of selecting the

person engaged in service, remuneration in the form of wages, right to suspend/dismiss for misconduct, hours of work/provision of holidays, income tax deduction.

Hence the acrobats were employees and the circus liable for negligence of one of them.

Stevens v Brodribb (p389) 1986 HC An accident involving a snigger who carried logs and negligently injured a truck driver. Mason J uses control test as well as other criteria:

Mode of remuneration Provision and maintenance of equipment Obligation to work Hours of work and provision for holidays Deduction of income tax Delegation of work by putative employee

Therefore, the distinction is essentially between a contract of service (employee) and a contract for services

These criteria were not met so the snigger was not an employee but an independent contractor.

Hollis v Vabu Crisis Couriers 2001 HC Bike couriers wore company’s insignia on back, signifying that they are a representative of the company.

Ellis v Wallsend Hospital 1989 NSW Doctor considered an independent contractor, regardless of whether treating own patients or hospital’s

because: No remuneration received from hospital, medical officers generally permitted to manage the discharge of their obligations, hospital board only maintained slight degree of control over doctors save in aspects of exercising proper medical skill, doctor used hospital for its facilities.

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The course of employment It will only be in the course of employment if the employee is actually performing his/her job. An employer can be liable for an intentional tort committed by an employee when it is done in furtherance

of the employer's interests or under his express or implied authority or as an incident to or in consequence of anything the employee was employed to do. (Deatons Pty Ltd v Flew).

If activities of employee are so disconnected from the work so as to make the employee a stranger from the employer then its not in the course of employment (Bugge v Brown) ie.

1. He did not assume to act within the scope of his employment; or 2. If what he did was a thing so remote from his duty as to be altogether outside of, and unconnected

with his employment.

Bugge v Brown (p394) 1919 CLR Act will be ‘in the course of employment if:

(a) The act is an authorised act(b) It is an unauthorised mode or manner of committing an authorised act(c) It is connected in some way with the employer’s interests/objectives so that it is not too remote

and so that person will not be regarded as a stranger. Mere fact that act is unauthorised does not take it outside sphere of employment.

Deatons v Flew (p396) 1949 CLR Barmaid threw a glass at a customer. Customer sued publican. Court said barmaid was doing something completely unrelated to her employment, so no vicarious

liability. The assault might have proceeded from some other cause not connected with occupation/employment. Even if she was acting in self-defence, cannot be considered incidental to course of employment – was not

throwing glass to restore order/ maintain discipline.

Morris v CW Martin (p397) 1966 QB A servant is acting in the course of his/her employment if the master employs him/her to perform certain

tasks and in the course of performing them, he/she acts dishonestly or fraudulently.

Agency A tort committed by an agent during the course of agency. The principal is someone who authorises the agent. Agent can create contractual relations between the principle and a 3rd party (eg. real estate agent). The principal is liable for a tort committed by an agent if the agent is performing his/her job. Eg. if

agent misrepresents principle, then the principle is liable to the 3rd party.

Colonial Mutual Life Assurance v The Producers (p400) 1931 HC Agent defied agreement and made defamatory statements. Held: By performing services for the company Agent did not act independently but as a representative of

the company. "The wrong committed arose from the mistake or erroneous manner in which the actual authority committed to [the agent] was exercised when acting as a true agent representing his principal in dealing with third persons".

Morgans v Launchbury (p402) 1973 AC Wife lent her car to her husband who went out drinking. He let another man drive the car, him and the

husband we killed. Other passengers were injured and sued the wife claiming permission to use the car created an agency.

House of Lords said permission does not create an agency because the husband was not acting on behalf of the wife.

In Australia statute provides the presumption of an agency between owner and any other driver of car so anyone injured can get 3rd party insurance. But there is no agency for permission under common law.

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Scott v Davis (SM) 2000 HC D lent plane to friend who crashed it, killing himself and injuring the passenger. Passenger sued owner. Mere permission is not enough because person who borrows is not doing something on behalf of the

owner.

Motor Accidents Act 1988 (NSW) (p13) s53(1) For the purpose of Death or injury to a person caused by the fault of the driver; the third party policy (if

insured):Any person (other than the owner) who was the driver of the vehicle (with or without the owner’s authority) is considered an agent of the owner acting within the scope of the agent’s authority in relation to the vehicle.

Liability for independent contractors’ torts & development of non-delegable duties Related to independent contractors. It is the D’s obligation to ensure that reasonable care is taken. Non-delegable duty arises in following cases where the D undertakes the care of a person or property or

they are in such a position to assume a responsibility for that, and on the other side the P has an expectation that reasonable care will be used.

o Employer/employee relationship – employer under non-delegable duty of care to the employee to ensure that reasonable care is taken in the workplace (Kondis v STA).

o Hospital/patient relationship - (Ellis v Wallsend District Hospital)o School authority/pupil relationship - (Commonwealth v Itrovigne).o Inviter (occupier)/invitee relationship – a doubtful category.

At the moment, non-delegable duty relates only to cases of personal injury and property damage.

Kondis v State Tranport Authority (p407) 1984 HC Employee was injured by negligence of a crane driver who was an independent contractor chosen by the

employer. The obligation of the employer with respect to the employee was to ensure that reasonable care was taken. The employer has the exclusive responsibility for the safety of the appliances, the premises and the system

of work to which he subjects his employee. So non-delegable duty exists. It is not enough to say that reasonable care was taken in choosing the contractor.

Ellis v Wallsend District Hospital (p411) 1989 NSW Patients can become patients of a hospital because they knock on the hospital door, in this case a non-

delegable duty arises. On the other hand, if the patient is on referral to a particular doctor then the hospital is not under a duty of

care with respect of the doctor’s conduct.

Burnie Port Authority v General Jones (p419) 1994 P had cold rooms in warehouse owned by D. D acquired independent contractor to work on warehouse.

The contractor’s negligence caused the building to catch fire and be destroyed. P lost their cold rooms and contents.

Court examined 3 areas where D could be liable:o Ignis suus – particular rule, but doesn’t exist about fire.o Rules in Rylands v Fletcher which created a tort of strict liability (no element of fault) which related

to the escape of things resulting from a non-natural use of land. HC said rule is no longer good law because it’s 125 years old and is ambiguous. Not relevant in Australia.

o Non-delegable duty – HC said need to show two things: 1.a central element of control by the principle over the P’s personal property; 2.special dependence or vulnerability on that control.

Court held that these two elements were satisfied. Non-delegable duty can be extended to relationships apart from the four said in Kondis as long as

there is the control-vulnerability dichotomy.

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Commonwealth of Australia v Introvigne 1982 A school authority owes to its pupil a duty to ensure that reasonable care is taken of them whilst they are

on the school premises during hours when the school is open for attendance. They cannot get rid of this responsibility by delegating.

Northern Sandblasting Pty Ltd v Harris HC 1997 Landlord leased house to tenants. Tenant’s daughter (a licensee) was electrocuted because electrician

hired by landlord was negligent. This case reflects doubts about the invitor/invitee relationship with regards to non-delegable duty because

it is hard for a landlord to ensure that the electrician takes reasonable care. McHugh’s judgement is good.

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Contribution between tortfeasors The right that one tortfeasor has to recover part of the damages from a second tortfeasor. If two tortfeasors are responsible for the same damage to the P and the P only sues one of them,

then that one can issue 3rd party notice or contribution notice to the other tortfeasor. Ways to become liable – judge hands down judgement, out of court settlement, arbitral award (where an

arbitrator acts like a judge and is appointed by the agreement of the parties, all parties in personal injuries claims must go to arbitration before they’re allowed to go to court).

Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s5(1)(c): Any tortfeasor liable in respect of damage may recover contribution from any other

tortfeasor who is, or would if sued have been, liable for the same damage. s5(2): court must make just and equitable settlement with regards to the third party’s liability.

Bitumen v Oil Refineries (p431) Man injured on P's tram by D's motor vehicle. P held liable to the man. P claiming contribution by the D

to damages. s 5(1)(c) of the Act: "any tortfeasor liable in respect of that damage" - HC held that where the word

“liable” here was held to at least include ascertainment by judgement.

Brambles Constructions v Helmers (p433) Not necessary to import the temporal idea relating to the limitation period to s5 of the Act. Windeyer J: The Statute of Limitations does not begin to run until after the liability of the original

tort-feasor has been ascertained.

Mahony v Kruschich (p282) HC 1985 s 5(1) (c) "in respect of the same damage" includes where the injury was reasonably foreseeable and there

was no break in the chain of causation.

Contribution and indemnity between employer and employeeLister v Romford Ice 1957 HoL The employer had insurance to cover an employee’s wrongdoings for which it was vicariously liable –

this insurance would cover all damages if the plaintiff sued the employee directly and the employee would not have to pay any of it. However, if the plaintiff sued the employer for the employee’s actions under the doctrine of vicarious liability, the insurer could recover a contribution from the employee.

Employees Liability Act 1991 (NSW) s3: If employee commits tort for which employer is vicariously liable then the employee is not able to

contribute to the employer in respect of the liability incurred by the employer s5: Act doesn’t apply to tort if it was serious and wilful misconduct or if it didn’t occur in course of

employment.

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14. Compensation for personal injury & injuries to related 3 rd parties

The assessment of damages in personal injury claims Based on restitutio in integrum – put P in position they were before the tort happened. Must not over-compensate P, point isn’t to punish the D. Awarded at end of trial and are a lump sum which cannot and will not be revisited, even if the forecasts

were wrong. Only exception to this “once and for all” rule when there was a clear fraud on the court. Structured settlement – payment in instalments. (see s143 of Motor Accidents Act). Special Damages - damages which are capable of exact measurement and which accrue up to the

date of the judgement General Damages - future economic damages & all non-economic loss from date of accident.

Claims by the (deceased) estate of the injured partyLaw Reform (Misc. Provisions) Act 1944 (NSW), Part II. s.2(1) Death irrelevant to causes of action s.2(2) If the plaintiff has died, his estate may not claim for exemplary damages, or damages based upon

loss of future earnings, or for pain and suffering incurred. Any loss of gain to the estate caused by the death shall be omitted from the calculations, except for funeral expenses.

s.2(4) An action may be brought after the death of the plaintiff. s.2(5) The act is for the benefit of the estate, and does not take away at all from rights conferred upon

family members under the Compensation to Relatives Act. s.2(6) Likewise for rights conferred under various motor accidents acts.

Compensation to relatives of deceased persons

The common law In civil proceeding death cannot be complained of as an injury (changed by statute). A personal action dies with the person (changed by statute).

Swan v Williams (p286) 1987 NSW A sandstone block falls from a site onto a car, killing P's wife and her parents, who were directors,

shareholders and employees of Swan Paper Agencies Pty Ltd. Held: The rule from Baker v Bolton was still held to apply. No common law claim exists for the loss of

services of a deceased, negligently killed. Compensation is only available via statute.

Relatives’ statutory action Unlike a negligence claim it is not necessary under statute for relatives to prove that damage was not

too remote (Haber v Walker). So the death of victim does not have to be a foreseeable consequence of the tort.

Compensation to Relatives Act 1897 (NSW) If deceased would have been able to maintain an action before death the relatives can bring on

behalf of deceased after death. s.3(1): The action is maintainable as if death had not ensued. s.3(2): Reasonable funeral expenses are recoverable s.3(3): No account to be taken of benefits arising from death, like insurance, superannuation, certain

pensions, etc. s.4(1): Action is for the benefit of immediate relatives, brought by the estate executor, and apportioned by

the jury between family members. s.6B: It is the executor of the deceased’s estate who is required to bring an action on behalf of the

deceased, but if action hasn’t been brought by executor after 6 months then relatives can bring one (s6). s.5: Only one action shall lie for the complaint s.6C: The action may survive the death of the defendant

Harding v Lithgow (p291) 1937 CLR

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Deceased killed by negligence of the council. At that time, councils were protected by statute and P had to wait 1 month before bringing a claim. Because deceased died immediately, D said procedural requirements weren’t met.

Deceased would have had a right to claim and there are no impediments to the claim (eg. deceased already settled before death, or a defence). These substantial limitations effect recovery but procedural limitations don’t.

Assessment of damages Assessed on financial basis – financial/material benefits deceased provided (eg. pay, services such as

cooking or looking after kids). It is the material loss of household services that matters, regardless of whether spouse uses damages

for services (Nguyen v Nguyen (p264)) Net pay assessed in same way as for personal injuries: calculated based on lost years. Deductions made – financial benefit spouse of deceased may gain from remarriage (Jones v

Schiffman) (based on freedom and prospect of remarrying). If already remarried then deduction based on this.

Value of household services is used to calculate damages regardless of whether spouse actually uses money.

Contributory negligence defence doesn’t reduce damages (s3 Law Reform (Misc. Provisions) Act 1965 and s139 of Motor Accidents Compensation Act).

Can’t bring an action for losses arising from business relationships (Burgess v Florence Nightingale Hospital).

Carroll v Purcell (p261) 1961 CLR Husband killed in Newcastle. Wife came to Sydney and let out old house in Newcastle, making money

from it and got a job which she didn’t have when with her husband. Suggested that rent earnings and salary should be deducted. Court rejected suggestion because the right to rent property is a benefit that shouldn’t be passed onto

D. Just because she had a job, she was simply exercising her freedom. As a wife the option to work had

always existed, and it was irrelevant that she now chose to exercise that right.

Davies v Taylor (p267) 1974 HoL P separates from her husband. He's negligently killed 5 weeks later. She claims there was a good chance

that she would have re-united with him, and that his death has meant a loss of possible support. P could not half return to her husband, therefore had to show a 'reasonable expectation she would return',

which could actually be a less than probable event. However, in this she failed to persuade the trial judge.

Servitium: Action for loss of services of employee Action which an employer can bring for the loss caused by an injury to an employee. Two qualifications:

1.if D is fellow employee then employer won’t have a right of action (s4 Employees Liability Act 1991 (NSW));

2.not applicable in motor accident claims (s142(1) of Motor Accidents Compensation Act 1999 (NSW)). Doesn’t survive death (ie. subject to rule in Baker v Bolton).

Employees Liability Act 1991 (NSW) s.4: Abolishes liability of an employee to the employer for depriving the employer of the services of

another employee s.5 The act indemnifying an employee does not apply if the employee's conduct was serious and wilfull

misconduct or did not arise within the course of the employment.

Action for loss of consortium: per quod consortium amisit Action which husband could bring for loss of consortium of his wife (see Law Reform Consortium Act

1984). No longer available in NSW.

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Doesn’t survive death (ie. subject to rule in Baker v Bolton).

Toohey v Hollier 1955 CLR Wife injured in car accident. Damages awarded for loss of consortium, defined as a term covering the loss of services provided by the

wife, such as Household management, duties, etc.

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Negligence

Duty of care (if physical injury or property damage, not much issue about duty)

Standard of care (breach)

Causation

Remoteness

Defences – illegality, contributory negligence, volens

Damages

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8. Negligence: Introduction...................................................................................................................................1

NEGLIGENCE OVER TRESPASS – WHY?..............................................................................................................1

9. NEGLIGENCE: THE DUTY OF CARE....................................................................................................2

(1) GENERAL PRINCIPLES..................................................................................................................................2Proximity & Duty of Care.............................................................................................................................3The Incremental Approach............................................................................................................................3Policy............................................................................................................................................................3

PUBLIC AUTHORITIES........................................................................................................................................4(2) DEFECTIVE PRODUCTS.................................................................................................................................5(2) DEFECTIVE STRUCTURES.............................................................................................................................5(3) OCCUPIERS’ AND LANDLORDS’ LIABILITY..................................................................................................6(4) RESCUE CASES: RESCUERS AS PLAINTIFFS..................................................................................................7(9) PURE ECONOMIC LOSS.................................................................................................................................8

Negligent advice and misrepresentation; professional and contractual relationships................................8Careless Conduct or Damage to a 3rd Party’s Property.............................................................................11

10. THE STANDARD OF CARE & BREACH OF DUTY..........................................................................13

THE RELEVANCE OF THE DEFENDANT’S CHARACTERISTICS............................................................................13RESPONSE OF THE REASONABLE PERSON; FORESEEABLE RISKS & RELEVANT CONSIDERATIONS...................14COMMUNITY STANDARDS AND PROFESSIONAL STANDARDS; THE ROLE OF EXPERT OPINION.........................16PROVING NEGLIGENCE & RES IPSA LOQUITUR................................................................................................17

11. THE REQUIREMENT OF DAMAGE.....................................................................................................19

CAUSATION......................................................................................................................................................19“But for” test; common sense; policy; omissions; causation and chance.................................................19Successive injuries and multiple sufficient causes......................................................................................20

REMOTENESS OF DAMAGE...............................................................................................................................21Reasonable foreseeability test.....................................................................................................................21“Egg shell skull” rule.................................................................................................................................22

CAUSATION & REMOTENESS IN CASES OF INTERVENING EVENTS & INTERVENTION BY 3RD PARTIES.............23

12. DEFENCES TO NEGLIGENCE.............................................................................................................24

CONDUCT CONSTITUTING CONTRIBUTORY NEGLIGENCE.................................................................................24THE APPORTIONMENT LEGISLATION................................................................................................................24VOLUNTARY ASSUMPTION OF RISK.................................................................................................................26ILLEGALITY......................................................................................................................................................28

13. CONCURRENT LIABILITY....................................................................................................................29

ACTIONS AGAINST JOINT TORTFEASORS..........................................................................................................29VICARIOUS LIABILITY FOR EMPLOYEES’ TORTS..............................................................................................29

Relationship of employer and employee.....................................................................................................29The course of employment...........................................................................................................................31

AGENCY...........................................................................................................................................................31LIABILITY FOR INDEPENDENT CONTRACTORS’ TORTS & DEVELOPMENT OF NON-DELEGABLE DUTIES...........32CONTRIBUTION BETWEEN TORTFEASORS........................................................................................................34

Contribution and indemnity between employer and employee...................................................................34

14. COMPENSATION FOR PERSONAL INJURY & INJURIES TO RELATED 3RD PARTIES.........35

THE ASSESSMENT OF DAMAGES IN PERSONAL INJURY CLAIMS.......................................................................35CLAIMS BY THE (DECEASED) ESTATE OF THE INJURED PARTY........................................................................35COMPENSATION TO RELATIVES OF DECEASED PERSONS.................................................................................35

The common law.........................................................................................................................................35Relatives’ statutory action..........................................................................................................................35Assessment of damages...............................................................................................................................36

SERVITIUM: ACTION FOR LOSS OF SERVICES OF EMPLOYEE...........................................................................36

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ACTION FOR LOSS OF CONSORTIUM: PER QUOD CONSORTIUM AMISIT...........................................................37

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