TORTSTORTS

Causation Causation

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

breach damage = Negligence

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

Duty of Care

causation

Overseas Tankship (UK) Ltd v Morts Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Dock and Engineering Co Ltd (The The Wagon Mound 1)Wagon Mound 1)

• The facts:The facts:

• The rule: the replacement of ‘direct’ The rule: the replacement of ‘direct’ cause (cause (Re PolemisRe Polemis )with reasonably )with reasonably foreseeable’foreseeable’

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

CAUSATION: THE ELEMENTSCAUSATION: THE ELEMENTS

• Causation involves two fundamental Causation involves two fundamental questions:questions:– the factual question whether Dthe factual question whether D’’s act in s act in

fact caused Pfact caused P’’s damage: s damage: causation-in-causation-in-factfact

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

CLA s5DCLA s5D

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

the occurrence of the harm the occurrence of the harm ( "factual causation"( "factual causation" ), ), andand

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

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

THE ELEMENTS OF THE ELEMENTS OF CAUSATIONCAUSATION

Causation

Factual(Causation in fact)

Legal

CAUSATION-IN-FACTCAUSATION-IN-FACT

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

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

• The necessary condition: The necessary condition: causa sine qua causa sine qua nonnon

CAUSATIONCAUSATION

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

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

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

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

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

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

Chapman v Hearse; Jolley V Chapman v Hearse; Jolley V SuttonSutton

• The place of intervening acts in causationThe place of intervening acts in causation

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

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

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

MATERIAL CONTRIBTIONMATERIAL CONTRIBTION

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

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

MATERIAL CONTRIBUTIONMATERIAL CONTRIBUTION

• Bonnington Castings v Wardlaw Bonnington Castings v Wardlaw [1956] AC 613[1956] AC 613– The plaintiff had a lung disease because The plaintiff had a lung disease because

of fumes the employer had exposed him of fumes the employer had exposed him to, plus he had exposed himself to to, plus he had exposed himself to smoke – issue whether employer had smoke – issue whether employer had caused the disease?caused the disease?  

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

MATERIAL CONTRIBUTIONMATERIAL CONTRIBUTION

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

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

INCREASE IN MATEARIAL INCREASE IN MATEARIAL RISKRISK

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

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

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

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

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

Bailey v The Ministry of Bailey v The Ministry of Defence & Anor (2008)Defence & Anor (2008)• The claimant aspirated her vomit leading to a cardiac The claimant aspirated her vomit leading to a cardiac

arrest that caused her to suffer hypoxic brain damage. arrest that caused her to suffer hypoxic brain damage. There was evidence of negligence by the medical teamThere was evidence of negligence by the medical team

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

contributed to" the injurycontributed to" the injury– Held: If the claimant could have established on the balance of Held: If the claimant could have established on the balance of

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

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

INCREASE IN MATERIAL RISK INCREASE IN MATERIAL RISK VERSUS MATERIAL CAUSATIONVERSUS MATERIAL CAUSATION• ““A material increase in the risk of injury by a A material increase in the risk of injury by a

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

Causation principles under Causation principles under the CLA: s5D (2)the CLA: s5D (2)• In determining in an exceptional case, in In determining in an exceptional case, in

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

MULTIPLE CAUSESMULTIPLE CAUSES

• Where the injury or damage of which Where the injury or damage of which the plaintiff complains is caused by the plaintiff complains is caused by DD ’’s act combined with some other s act combined with some other act or event, D is liable for the whole act or event, D is liable for the whole of the loss where it is indivisible; of the loss where it is indivisible; where it is divisible, D is liable for the where it is divisible, D is liable for the proportion that is attributable to proportion that is attributable to him/herhim/her

MULTIPLE CAUSES: TYPESMULTIPLE CAUSES: TYPES

• Concurrent sufficient causesConcurrent sufficient causes– where two or more independent events cause the where two or more independent events cause the

damage/loss to D ( eg, two separate fires destroy Pdamage/loss to D ( eg, two separate fires destroy P’’s s property)property)

• Successive sufficient causesSuccessive sufficient causes• Baker v WilloughbyBaker v Willoughby; ; Faulkner v Keffalinos;Faulkner v Keffalinos;

– D2 is entitled to take P (the victim) as he finds him/herD2 is entitled to take P (the victim) as he finds him/her– Where D2 exacerbates a pre-existing loss/injury (such as Where D2 exacerbates a pre-existing loss/injury (such as

hasten the death of P) D2 is liable only for the part of the hasten the death of P) D2 is liable only for the part of the damage that is attributable to himdamage that is attributable to him

THE ELEMENTS OF THE ELEMENTS OF CAUSATIONCAUSATION

Causation

Factual(Causation in fact)

Legal

LEGAL CAUSATIONLEGAL CAUSATION

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

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

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

REMOTENESSREMOTENESS

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

Case Law on RemotenessCase Law on Remoteness

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

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

INTERVENING ACTINTERVENING ACT

• An intervening act breaks the chain of causation and An intervening act breaks the chain of causation and may relieve D of liability. To be sufficient to break the may relieve D of liability. To be sufficient to break the chain, it must either be a:chain, it must either be a:– human action that is properly to be regarded as human action that is properly to be regarded as

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

INTERVENING ACT 2INTERVENING ACT 2

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

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

The Law of Torts The Law of Torts

Particular Duty Areas: Particular Duty Areas:

Product LiabilityProduct Liability

Abnormal PlaintiffsAbnormal Plaintiffs

Unborn ChildrenUnborn Children

Liability for Defective Liability for Defective Products: The ScopeProducts: The Scope

• Product liability as a regime for Product liability as a regime for protecting consumer rights:protecting consumer rights:– Defective structures/premises (as Defective structures/premises (as

products?)products?)– Consumer goods as productsConsumer goods as products

Product Liability: Evolution Product Liability: Evolution in Common Law in Common Law

• Originally in Common Law, a consumer Originally in Common Law, a consumer in receipt of defective goods (including in receipt of defective goods (including goods that caused injury to the goods that caused injury to the consumer because of defects) was consumer because of defects) was protected by the warranties implied in protected by the warranties implied in the contract of salethe contract of sale

• The implied warranties was later The implied warranties was later incorporated into statutes:incorporated into statutes:– Sale of goods Act 1983 (UK)Sale of goods Act 1983 (UK)– Sale of Gods At 1923 (NSW)Sale of Gods At 1923 (NSW)

The Difficulties with Implied The Difficulties with Implied Warranties Warranties

• Warranties do not ‘run’ with goods. It is simply Warranties do not ‘run’ with goods. It is simply an element of the contract and does not an element of the contract and does not therefore attach to the goods as suchtherefore attach to the goods as such

• There is generally no ‘ vertical privity’ between There is generally no ‘ vertical privity’ between the manufacturer and the ultimate consumer the manufacturer and the ultimate consumer let alone between wholesalers and the ultimate let alone between wholesalers and the ultimate consumers consumers

• Privity of contract ‘remained a recalcitrant Privity of contract ‘remained a recalcitrant obstacle to the extension o warranties between obstacle to the extension o warranties between the manufacturer and the ultimate consumer ‘ the manufacturer and the ultimate consumer ‘ (Fleming) (Fleming)

The Emergence of The Emergence of Negligence Law: Donoghue Negligence Law: Donoghue v Stevensonv Stevenson• The existence of the duty of care The existence of the duty of care

between the manufacturer and between the manufacturer and ultimate consumerultimate consumer

• ‘‘a a manufacturer of productsmanufacturer of products … … owes a duty to the consumer to owes a duty to the consumer to take reasonable caretake reasonable care’’

The Sources of Law on The Sources of Law on Product LiabilityProduct Liability

• Common Law:Common Law:– contract

– tort

• Statute Law– Trade Practices Act 1974 (Cwth)

– State fair trading legislation, State Sale of Goods legislation

– Strict liability regime.

Common Law: NegligenceCommon Law: Negligence

• Donoghue v StevensonDonoghue v Stevenson and the and the Common Common Law duty of manufacturersLaw duty of manufacturers

• The scope of the duty:The scope of the duty:– The extent of the dutyThe extent of the duty:: Junior Books v Junior Books v

Veitchi (the duty extends beyond merely Veitchi (the duty extends beyond merely causing harm to safety or property)causing harm to safety or property)

– Intermediate examination: Intermediate examination: Grant v. Aust. Grant v. Aust. Knitting MillsKnitting Mills

– The range of defendants: The range of defendants: Haseldine v. DawHaseldine v. Daw

The Act of the DefendantThe Act of the Defendant

• Negligent design of productNegligent design of product– O’Dwyer v. Leo BuringO’Dwyer v. Leo Buring [1966] WAR 67 [1966] WAR 67

• Negligence in the manufacturing process: Negligence in the manufacturing process: – Grant v. Australian Knitting MillsGrant v. Australian Knitting Mills

• Negligent Marketing of a ProductNegligent Marketing of a Product– Adelaide Chemical & Fertilizer CoAdelaide Chemical & Fertilizer Co

V. CarlyleV. Carlyle

• Failure to warn of dangers or proper useFailure to warn of dangers or proper useNorton Aust. Pty Ltd V. Steets Ice Cream Pty Norton Aust. Pty Ltd V. Steets Ice Cream Pty LtdLtd

StatuteStatute

• Sale of Goods Act (1923) NSW Sale of Goods Act (1923) NSW impliesimplies into contracts for sale of into contracts for sale of goods certain goods certain warrantieswarranties::– fitness for purposefitness for purpose– merchantable qualitymerchantable quality– cannot be excludedcannot be excluded

StatuteStatute

•Trade Practices Act (Comm) Trade Practices Act (Comm) Pt V Div 2APt V Div 2A– S74B Allows a consumer or person acquiring S74B Allows a consumer or person acquiring

title through or under consumer an action title through or under consumer an action against manufacturer in respect of goods against manufacturer in respect of goods unsuitable for purpose of sale. unsuitable for purpose of sale. 

– S.74C : Action in respect of false descriptionS.74C : Action in respect of false description– S.74D: goods of unmerchantable qualityS.74D: goods of unmerchantable quality– S.74E: goods not corresponding with sampleS.74E: goods not corresponding with sample– S.74K : No exclusion or modification of T.P.AS.74K : No exclusion or modification of T.P.A

The TPA: The manufacturerThe TPA: The manufacturer

•Manufacturer: defined widely Manufacturer: defined widely (S74A (3) & (4)) to include a (S74A (3) & (4)) to include a corporationcorporation– --allows its name or brand on goodsallows its name or brand on goods– -holds itself out as manufacture-holds itself out as manufacture– -is importer & manufacture has no -is importer & manufacture has no

Aust place of businessAust place of business

The TPA: The ConsumerThe TPA: The Consumer

•CONSUMERCONSUMER: person acquiring : person acquiring goods where;goods where;– -prices does not exceed the -prices does not exceed the

prescribed amount ($40,000)prescribed amount ($40,000)– OROR– -where price was greater but goods -where price was greater but goods

were of a kind ordinarily acquired for were of a kind ordinarily acquired for personal domestic or household use.personal domestic or household use.

The TPA: RemediesThe TPA: Remedies

•S75AE: Remedy for other S75AE: Remedy for other persons who suffer consequential persons who suffer consequential losses. losses.

•S75AF: Remedy for damage to S75AF: Remedy for damage to personal, domestic or household personal, domestic or household goods:goods:

•S75AG: Remedy for damage to S75AG: Remedy for damage to land or buildings land or buildings

The TPA: DefencesThe TPA: Defences

• Defences: S75AKDefences: S75AK

• Contrib. Neg: S75ANContrib. Neg: S75AN

• 3 year time limit: S75AQ3 year time limit: S75AQ

The TPA Part VAThe TPA Part VA

•Pt VA T.P.A was enacted in 1992 Pt VA T.P.A was enacted in 1992 and deals with the liability of and deals with the liability of manufacturers and importers of manufacturers and importers of defective goodsdefective goods– S.75A: Applies to goods “if their safety S.75A: Applies to goods “if their safety

is not such as person generally are is not such as person generally are entitled to expect”entitled to expect”

– S.75AD: A corporation supplying such S.75AD: A corporation supplying such goods is liable for damages to a goods is liable for damages to a person injured or killedperson injured or killed

Fair Trading Act (1987) Fair Trading Act (1987) (NSW)(NSW)

The Action: TPA or TortThe Action: TPA or Tort

• Under the TPA the Plaintiff does not Under the TPA the Plaintiff does not prove:prove:– -duty of care-duty of care– -negligence-negligence

• P should where possible plead 2 P should where possible plead 2 causes of action:causes of action:– -in tort-in tort– -under TPA-under TPA

Abnormal Plaintiffs and Abnormal Plaintiffs and Particularly Sensitive Particularly Sensitive PlaintiffsPlaintiffs

• To be liable, P must show that she/he To be liable, P must show that she/he was foreseeable. In general the was foreseeable. In general the abnormal P is not foreseeableabnormal P is not foreseeable

• There is a distinction to be drown There is a distinction to be drown between the between the abnormalabnormal Plaintiff and the Plaintiff and the particularlyparticularly sensitive Plaintiff sensitive Plaintiff

Abnormal PlaintiffsAbnormal Plaintiffs

• In general where D is negligent, D In general where D is negligent, D takes P as he /she finds P. Any takes P as he /she finds P. Any unusual condition that aggravates unusual condition that aggravates the damage cannot be used by D the damage cannot be used by D as a defenceas a defence– Haley v. London Electricity Bd. Haley v. London Electricity Bd. AA blind blind

P held not to be abnormal: D “ought P held not to be abnormal: D “ought to anticipate the presence of such to anticipate the presence of such person within the scope and hazard of person within the scope and hazard of their operations”their operations”

Particularly Sensitive Particularly Sensitive PlaintiffPlaintiff

• Where P suffers damage because of a Where P suffers damage because of a particular sensitivity in circumstances particular sensitivity in circumstances where D’s conduct is not considered a where D’s conduct is not considered a breach, P cannot claimbreach, P cannot claim

• Levi. V Colgate PalmoliveLevi. V Colgate Palmolive– ““the bath salts supplied to P were the bath salts supplied to P were

innocuous to normal persons… the skin innocuous to normal persons… the skin irritation which she suffered…was irritation which she suffered…was attributable exclusively to attributable exclusively to hypersensitiveness” hypersensitiveness” 

The Unborn ChildThe Unborn Child

• In general, a duty of care may be owed to In general, a duty of care may be owed to P before birthP before birth– Watt v. RamaWatt v. Rama: “the possibility of injury on birth : “the possibility of injury on birth

to the child was… reasonably foreseeable…On to the child was… reasonably foreseeable…On the birth the relationship crystallised and out of the birth the relationship crystallised and out of it arose a duty on the D…”it arose a duty on the D…”

– X v. PalX v. Pal: Duty to a child not conceived at the : Duty to a child not conceived at the time of the negligent acttime of the negligent act

– Lynch v. Lynch:Mother liable in neg to her own Lynch v. Lynch:Mother liable in neg to her own foetus injured as result of mother’s neg driving.foetus injured as result of mother’s neg driving.

Wrongful Birth Claims Wrongful Birth Claims

• Claims by parents in respect of the birth of a Claims by parents in respect of the birth of a child who would not have been born but for the child who would not have been born but for the D’s negligence.D’s negligence.– Vievers v Connolly (1995) 2 Qd R 325 Vievers v Connolly (1995) 2 Qd R 325 (Mother of (Mother of

disabled child born bec. Pl lost opportunity to lawfully disabled child born bec. Pl lost opportunity to lawfully terminate pregnancy. Damages included costs for terminate pregnancy. Damages included costs for past & future care of child for 30 years.)past & future care of child for 30 years.)

– CES v Superclinics (1995-6) 38 NSWLR 47CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost Mother lost opportunity to terminate pregnancy as a result of D’s opportunity to terminate pregnancy as a result of D’s neg failure to diagnose pregnancy. NSW Ct of Appeal neg failure to diagnose pregnancy. NSW Ct of Appeal held claim maintainable but damages not to include held claim maintainable but damages not to include costs of raising the chills as adoption was an option.costs of raising the chills as adoption was an option.

– Melchior v Cattanach [2001] QCA 246Melchior v Cattanach [2001] QCA 246 Mother of Mother of healthy child after failed sterilization procedure. Qld healthy child after failed sterilization procedure. Qld CT Appeal held damages shld include reasonable costs CT Appeal held damages shld include reasonable costs of raising the child. High Ct agreed on appealof raising the child. High Ct agreed on appeal

Wrongful Life ClaimsWrongful Life Claims

• Claim by child born as a result of Claim by child born as a result of negligent treatment by De of child’s negligent treatment by De of child’s parent.parent.

• Bannerman v Mills (1991) ATR 81-079. Bannerman v Mills (1991) ATR 81-079. Summary dismissal of claim by child born Summary dismissal of claim by child born with disabilities as result of mother with disabilities as result of mother having rubella whilst pregnant. having rubella whilst pregnant. Tort of Tort of wrongful life unknown to common lawwrongful life unknown to common law

Wrongful Life ClaimsWrongful Life Claims

• Edwards v BlomeleyEdwards v Blomeley; ; Harriton v StevensHarriton v Stevens; ; Waller v Waller v JamesJames (2002 ) NSW Supreme Court, Studdert J. (2002 ) NSW Supreme Court, Studdert J.

            No duty of care to prevent birthNo duty of care to prevent birth             Policy reasons -Policy reasons -

– 1.1. Sanctity & value of human lifeSanctity & value of human life– 2.2. impact of such claim on self-esteem of disabled impact of such claim on self-esteem of disabled

personspersons– 3.3. exposure to liability of mother who continued with exposure to liability of mother who continued with

pregnancypregnancy– 4.4.Plaintiffs’ damage not recognizable at law - would Plaintiffs’ damage not recognizable at law - would

involve comparison of value of disabled life with value involve comparison of value of disabled life with value of non-existenceof non-existence

– 5.5.Impossibility of assessment of damages in money Impossibility of assessment of damages in money terms - taking non-existence as a point of comparison.terms - taking non-existence as a point of comparison.  

CLA Part 11 s71CLA Part 11 s71

• In any proceedings involving a claim for the birth In any proceedings involving a claim for the birth of a child to which this Part applies, the court of a child to which this Part applies, the court cannot award damages for economic loss for: (a) cannot award damages for economic loss for: (a) the costs associated with rearing or maintaining the costs associated with rearing or maintaining the child that the claimant has incurred or will the child that the claimant has incurred or will incur in the future, or (b) any loss of earnings by incur in the future, or (b) any loss of earnings by the claimant while the claimant rears or the claimant while the claimant rears or maintains the child. (2) Subsection (1) (a) does maintains the child. (2) Subsection (1) (a) does not preclude the recovery of any additional costs not preclude the recovery of any additional costs associated with rearing or maintaining a child associated with rearing or maintaining a child who suffers from a disability that arise by reason who suffers from a disability that arise by reason of the disability.of the disability.

Defective PremisesDefective Premises

• In general the occupier of premises In general the occupier of premises owes a duty of care to persons who owes a duty of care to persons who come on to the premisescome on to the premises

• While the notion of occupier's While the notion of occupier's liability may have developed initially liability may have developed initially as a separate category of tort law, it as a separate category of tort law, it now considered under the general now considered under the general principles of negligenceprinciples of negligence– ZaluznaZaluzna v Australian Safeway Stores v Australian Safeway Stores

Occupiers’ LiabilityOccupiers’ Liability

• What are Premises?What are Premises?– -Land and fixtures-Land and fixtures– -but Cts have used wide interpretations -but Cts have used wide interpretations

including moveable structures eg:including moveable structures eg:– scaffolding (scaffolding (London Graving Dock v. London Graving Dock v.

Horton [1951] AC 737Horton [1951] AC 737– Ships and gangways eg. Swinton v. China Ships and gangways eg. Swinton v. China

Mutual Steam Navigation Co Ltd Mutual Steam Navigation Co Ltd (1951) (1951) 83 CLR 55383 CLR 553

Occupiers’ LiabilityOccupiers’ Liability

• Who is an occupier – controlWho is an occupier – control– Wheat v. LaconWheat v. Lacon [1966] AC 522 [1966] AC 522– Kevan v. Commissioner for RailwaysKevan v. Commissioner for Railways

[1972] 2 NSWLR 710[1972] 2 NSWLR 710