Week 1 Answers:

https://www.csoonline.com/article/574681/paypal-sued-for-negligence-in-data-breach-that-affected-35000-users.html
PayPal sued for negligence in data breach that affected 35,000 users
Waivers should be lawful, but subject to being overruled in cases of thorough negligence, all activities should be waived
The public system should be held more accountable than the private, law should me more enduring as politicians have different agendas and priorities
Lady that fell over is likely liable depending on signage and fencing provided, depending on legislation
- Known for risky shots
- Alternatively, open and obvious danger clauses are held for stupid obvious risks, but government may not apply
- Are precautions needed when the danger is obvious, what’s the law requiring fencing
  - If the risk of death is certain, likely need a fence but really don’t need warnings unless either no fence, or danger is not obvious
Class Questions
Tort is a Common law causes of action
- Developed by judicial decisions
- Any form of civil action that is not a contract
  - Ex: personal injury, defamation, malicious prosecution, passing off, injurious falsehood, breach of contract
Fault based means the person liable for damages based on tort concerns
- compensation
- Deterrence
- Loss spreading
Law of torts does not apply to all interest, it’s a gap for common law
Torts - one party damages another, Criminal - one party violates laws of the land, Contract - one party violates agreement with other
Aims of torts are
- compensation
- Deterrence
- Loss spreading
Civil Liability Act 2002 (NSW) was for the recovery of damages for death or personal injury caused by the fault of a person; to amend the Legal Profession Act 1987 in relation to costs in civil claims; and for other purposes
- Made laws of tort claims for court.
- Equity court + special sentencing

Week 2 answers:

Intentional Torts I
Please prepare answers to the following questions before class.
Trespass - Generally

Referring to Fede v Gray, distinguish volition from intention. If volition is in issue, does the plaintiff have to prove the defendant’s act was voluntary, or does the defendant have to prove it was involuntary?
- Volition refers to a person’s ability to act voluntarily. It’s about whether the defendant’s bodily movement was a result of their conscious control.
- Intention relates to the purpose or desire behind the act. It concerns whether the defendant meant to bring about certain consequences or effects of the action, or if they knew with substantial certainty that those effects would result
- So, if volition is in issue:
  - The plaintiff has to prove that there was a direct interference with their person (e.g., a touch)
  - The defendant then has the burden of showing that the act was involuntary.
Will establishing a trespass be enough by itself to engage s 3B(1)(a) of the Civil Liability Act? Why or why not?
- Claim against police for assault and trespass to land intentional act … at least done with intent to injure, will take the matter outside the operation of the Civil Liability Act, by virtue of s 3B(1)(a)’
- does not exclude intentional torts.
- For s 3B(1)(a) to be engaged, the intentional act must be done with the intent to cause injury or death, or involve sexual assault or other sexual misconduct. Simply proving trespass does not, by itself, engage this provision. The intent behind the act must also be established.
For the purposes of s 3B(1)(a), will recklessness (rather than an actual intention to injure) establish an “intent to cause injury”? Should recklessness establish an intent to cause harm?
- merely being reckless, without a specific intent to cause harm, might not suffice to invoke s 3B(1)(a).
- More likely a negligence tort
  Trespass to Person - Battery
For the purposes of battery, what is the act that must be intended by the Defendant and what is the nature of the intention required? Refer to Williams v Milotin to explain whether negligence is sufficient to satisfy the intent element in trespass. Which party bears the onus of proving fault?
- To prove battery, each element of the tort must be made out:
  - 1. an intentional and voluntary positive act by the defendant
  - 1. which directly
  - 1. causes contact with the body of the plaintiff
- Williams v Milotin (1957) 97 CLR 465 established that trespass to person by battery may be committed by a negligent act.
  - Negligent conduct would satisfy the elements of the tort of assault, another trespass to person tort.
- once the plaintiff proves that there was a direct interference with their person (like a physical contact), the onus or burden then shifts to the defendant to demonstrate that the act was involuntary.
To what extent is the element of hostility relevant in an action for battery?
Consider the case of Scott v Shepherd. Do you agree with the reasoning of the Courts in this case on the issue of whether the ‘directness’ requirement was satisfied?
- Intentional conduct in trespass encompasses deliberate, reckless or negligent actions.
  - It is not necessary that the intent of the defendant should be hostile and it need not include an intent to injure or harm the plaintiff.
- Hutchins v Maughan [1947] VLR 131, 13
- element of directness is satisfied where the contact ‘follows so immediately upon the act of the defendant that it may be termed part of that act’.
- trespass is based on direct interference whereas case is based on indirect or consequential interference.
A mother was holding her 12-month-old baby when the defendant punched her in the face, causing her to drop her baby. Has a battery been committed:
(a) by the defendant against the mother? - yes, clearly positive voluntary contact w/o consent
(b) by the defendant against the baby? - yes, case (trespass on the case, aka negligence tort) is based on indirect or consequential interference. Hutchins v Maughan [1947] VLR 131, 13
(c) by the mother against the baby? - no, all contact between them is consentual, No intention, involuntary action.
Note: these were the facts of Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890.

Assault

How does the tort of assault differ from battery?
- Assault thus refers to the threat of force, and battery refers to the actual use of the force.
Why is the knowledge of the plaintiff in a case of assault essential?
- For assault to occur, the plaintiff must be aware of the threat so that they can genuinely apprehend the imminent contact.
- Differentiate from battery
- Measurable to the reasonable person
Critically examine the view that words alone do not constitute assault. Refer to Barton v Armstrong. Since the tort of assault is essentially concerned with threats, why is this an issue?
- Barton v Armstrong [1969] 2 NSWR 451,
  - Armstrong threatened over the telephone, to take Barton’s life if he did not sign a deed.
    - Never said when, but seemingly imminent
  - Caused fear for life
What must the defendant intend? Can an assault be committed negligently?
- defendant must subjectively intend to create in the plaintiff an apprehension of imminent physical contact.
  - Even if not able to harm, such as unloaded gun
- MacMasters, can be negligently
What must the plaintiff apprehend? Is this determined subjectively or objectively?
- Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact;
- Judged objectively even though the offense is subjective

False imprisonment

‘False imprisonment, a trespass, does not lie unless the defendant directly and intentionally caused the plaintiff’s bodily restraint. If done negligently, like carelessly locking someone inside a library or freezer, the plaintiff must prove actual injury to be successful in his or her action.’ Fleming, The Law of Torts, 8th Ed, 1992, at 30. Do you agree with this view? Why?
- defendant’s act must be intentional
- Negligently
  - locking up of a library by a security worker, where a person remains inside, unknown to the security worker.
  - Must sue under tort of negligence then prove damage
To what extent is knowledge of confinement essential in an action for false imprisonment?
- Duration of false imprisonment
  - Any form of deprivation of liberty is sufficient, even if it is only for a short period of time.
  - Exceptions in the implied rule for police/transport authority
- Knowledge of the deprivation
  - Meering v Grahame-White Aviation Co (1919
    - Employee did not know there were detectives stationed outside the room to prevent him from leaving
    - Held to be false imprisonment
  - Hart v Herron (1984) Aust Torts Reps
    - deep sleep therapy and electroconvulsive treatment, to which he had not consented.
    - false imprisonment even though the plaintiff was unconscious at the time.
Class Problems
- Problem Question 1
  - Brett had been to the cinema for a ‘babes in arms’ showing of Jane Campion’s brilliant The Power of the Dog. After quite a restless few hours in the cinema, Jane - his baby daughter - had finally fallen asleep on the drive home. So as not to disturb her, when he arrived home he parked in the driveway, with all the windows down, and Jane asleep in the baby capsule in the rear seat.
  - May stole the car not noticing the child in the rear seat. After driving some way and hearing baby Jane’s cries, May abandoned the car in an area of bushland some kilometres away. The car and Jane were not found for 12 hours. When found, Jane was hungry and dehydrated but otherwise apparently unharmed.
  - Does Jane have an action in tort against May?
    - I - Identify the issues raised by the problem
      - Jane v May (False imprisonment) - stealing car and abandoning baby
      - Theft of vehicle
        
        tort of conversion or trespass to chattel
        
        taking with the intent of exercising over the chattel an ownership inconsistent with the real owner’s right of possession”.
      - False imprisonment
        
        Total deprivation of liberty
        
        Began as unintentional, once aware became intentional - fagan
        
        Abandoned baby
      - Negligence
    - R - Research/ review the relevant law
      - theft of vehicle
        
        tort of conversion or trespass to chattel
        
        taking with the intent of exercising over the chattel an ownership inconsistent with the real owner’s right of possession”.
      - False imprisonment
        
        Total deprivation of liberty
        
        Began as unintentional, once aware became intentional - fagan
        
        Meering v Grahame-White Aviation Co (1919
        
        Did not know it was false imprisonment, does not matter
    - A - Apply/ Argue the law
      - May could be held liable for conversion because she unlawfully took Brett’s car, thus denying him his property rights.
      - Once May became aware of Jane’s presence in the car and failed to act, her actions (or inactions) could constitute false imprisonment.
      - Foreseeable risk to leave a baby alone for any amount of time
    - C - Conclude as to how a court might rule on the issue.
      - Considering the evidence and applicable laws, a court would likely find May liable for several torts, including conversion, false imprisonment, reckless endangerment, and negligence. Given the clear chain of events and the harm caused, it’s probable that damages would be awarded in favor of Jane (and potentially her guardians).
      - Judge would smack may around, hard
- Problem Question 2
  - In the shadow of the climate crisis, and in response to Greta Thunberg’s global mobilisation of young people, university student bodies across Sydney have united to co-ordinate city, state, and countrywide action. To launch this new initiative, and to acknowledge the global success of the Friday school strikes initiated by Thunberg, the University Coalition for Climate Justice (UCCJ) organise a state wide strike of young people. The strike day is designed to coincide with an important speech that is scheduled to be given by the State Minister for Energy and the Environment in Parliament on Macquarie Street.
  - When the Minister’s car approaches Parliament, Dipesh and Justine (co-chairs of UCCJ) and a large group of students spat at the car and threw coal at it. The driver of the car, who was having difficulty negotiating a way through the protesters, was driving at about 10 kilometres an hour. Simon, an animal rights protester who has taken the demonstration as an opportunity to highlight Nike’s culling of kangaroos to make football boots, runs in front of the car waving a kangaroo shaped placard. The driver accidentally puts his foot on the accelerator instead of the brake, running Simon down.
  - Justine ran to Simon’s aid but was grabbed by the arm by a member of the Parliament security team. She yelled, “Let me go, climate terrorist!” and the security personnel replied, “If you don’t get out of here, you’ll wish you hadn’t said that. How would you like to find out how a real terrorist acts?”
  - When the Minister exits the car, a group of students are waiting. Jas and Dom, two further security personnel, barred the way of the demonstrators into Parliament. The security people simply stood still, arms crossed over their chests, saying nothing, blocking the doorway. This prevented anyone entering or leaving the building. The students outside continued to shout their disapproval of the government’s response to the climate crisis but did not try to enter the blocked doorway. They claimed that they were afraid of what the security personnel might do if they tried to enter.
  - Blue, one of the students who had gone into the Parliament before the Minister arrived, tried to leave but Jas and Dom stood silently in the doorway, ignoring Blue’s requests for them to move to let them out. Blue pushes Jas in the back saying “Let me out, you thug!” Jas does not reply or move. Blue was not able to leave the building until after the Minister had delivered his speech. Security personnel similarly blocked all other exits from the building.
  - Advise all parties as to their rights and liabilities in tort.
    - I - Identify the issues raised by the problem
      - Dipesh and Justine
        
        Battery - parliament security team
        
        Likely not pass as not excessive and in line of duty
        
        False imprisonment - helping simon
      - Minister’s driver
      - Minister
        
        Trespass to Chattels: students throwing things at minister car
        
        Trespass to goods
        
        Car damaged
      - Simon
        
        Could sue for battery from drive
        
        Negligence: The driver has a duty to operate the vehicle with care. Accelerating instead of braking might be seen as a breach of that duty, leading to harm (Simon being run down).
      - Security
        
        If you don’t get out - not assault, not really a threat
        
        Assault and battery case likely to fail, but still prevalent with all students
      - Blue
        
        False imprisonment suit against security
        
        Blue pushing Jas may be battery
    - R - Research/ review the relevant law
      - Negligence: A duty of care is owed by individuals to ensure they do not cause foreseeable harm to others. Breaching this duty, causing injury or loss, leads to potential liability.
        
        Williams v Milotin (1957) 97 CLR 465
        
        established that trespass to person by battery may be committed by a negligent act
      - Battery: Intentional infliction of harmful or offensive bodily contact.
        
        NSW s 3B(1)(a) of the Civil Liability Act 2002,
        
        New South Wales v Ibbett (2005) 65 NSWLR
        
        Security guard is in the clear, no intent to cause harm + in line of duty
        
        Students cannot be proven to not cause harm + not in line of duty
        
        spitting in someone’s face (R v Cotesworth (1704) 87 ER 928),
        
        Spitting at car can be held as battery
        
        Innes v Wylie (1844) 174 ER 800, a policeman was held not to have committed a battery when he stood ‘entirely passive like a door or a wall put to prevent the plaintiff from entering the room’ (803, Lord Denman CJ).
      - Assault: Causing another person to fear imminent harmful or offensive bodily contact.
        
        Hall v Fonceca [1983] WAR 309
        
        Cranston v Consolidated Meat Group Pty Ltd [2008] QSC 41
        
        Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact;
      - False Imprisonment: The intentional infliction of a total restraint on another’s freedom of movement, without lawful justification.
        
        Meering v Grahame-White Aviation Co (1919
        
        Hart v Herron (1984) Aust Torts Reps
      - Trespass to Chattels: Intentionally interfering with another person’s lawful possession of a chattel.
    - A - Apply/ Argue the law
      - Driver & Simon:
        
        Given the duty of care, the driver’s mistaken acceleration leading to Simon’s injury can be deemed negligent.
        
        However, Simon’s abrupt movement in front of the car may constitute contribution to the negligence
      - Justine & Security:
        
        Battery: Under Williams v Milotin, battery can arise from a negligent act.
        
        While grabbing Justine could be seen as battery, referencing NSW s 3B(1)(a) of the Civil Liability Act 2002 and the case New South Wales v Ibbett, the security guard may argue they had no intent to cause harm and were acting in line of duty,
        
        distinguishing them from the students.
        
        Assault: The threat made to Justine could be seen as an attempt to cause imminent harmful or offensive bodily contact, satisfying the definition of assault as outlined in Hall v Fonceca and Cranston v Consolidated Meat Group Pty Ltd.
      - Students & Minister’s Car:
        
        Battery: Based on the precedent of R v Cotesworth, spitting at the car can be held as battery.
        
        While spitting at a person’s face is direct contact, spitting at someone’s personal property (the car) shows a clear intent to inflict an offensive act.
        
        Moreover, throwing objects, like coal, at the Minister’s car adds to the argument of battery.
      - Jas, Dom & Students:
        
        False Imprisonment: Blocking exits and entrances of Parliament by Jas and Dom can be seen as false imprisonment.
        
        Using Meering v Grahame-White Aviation Co and Hart v Herron, one could argue that the students had their freedom of movement totally restrained without lawful justification.
        
        However, referencing Innes v Wylie, Jas and Dom might argue that their passive stance, like a door or wall, does not constitute battery, though it may still indicate false imprisonment.
    - C - Conclude as to how a court might rule on the issue.
      - Driver & Simon:
        
        The court might likely find the driver was negligent in his actions, but given Simon’s unpredictable behavior in running in front of the car, damages awarded to Simon could be reduced
      - Justine & Security
        
        considering the protections offered to security personnel under the NSW s 3B(1)(a) of the Civil Liability Act 2002 and the case New South Wales v Ibbett, the court might side with the security guard, especially if the actions were seen as in line of duty and without intent to harm
        
        Assault likely viewed as “if you don’t” but in reality means that you did not do something, conditional.
      - Students & Minister’s Car:
        
        The court would likely find in favor of the Minister for trespass to chattels due to the intentional interference with the Minister’s vehicle. Given the precedent set in R v Cotesworth, spitting at the car may be ruled as a battery, making the students potentially liable for both battery and trespass to chattels.
      - Jas, Dom & Students:
        
        False imprisonment likely held, but mitigated due to battery by Blue
        
        Innes v Wylie (1844) 174 ER 800, a policeman was held not to have committed a battery when he stood ‘entirely passive like a door or a wall put to prevent the plaintiff from entering the room’ (803, Lord Denman CJ).

Week 3 Answers: Intentional Torts

Class Questions

What are the elements of the Tort of trespass to land?
- voluntary, positive and intentional (or negligent) act that directly interferes physically with the plaintiff’s exclusive possession of the land
What do we mean when we say that trespass to land is actionable per se?
- This means that loss or damage is not part of the cause of action.
With reference to case law, provide at last three examples of the kind of conduct that would constitute a trespass to land.
- . nominal damages:
  - Hill v Higgins [2012] NSWSC 270;
- 1. compensatory damages:
  - TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333;
- 1. aggravated damages:
  - TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333;
- 1. exemplary damages:
  - New South Wales v Ibbett [2005] NSWCA 445;
What interest in the land must the plaintiff have in order to have standing to sue in trespass to land?
- Exclusive possession
- interests of a person in actual possession of land remain free from unwanted physical interference.
Why is the distinction between a lease and a license important here?
- Lease means you carry possession of land, and have a claim/interest
- License is a legal right to occupy property, not possess
Brennan J dissented in Halliday v Nevill (see paras [19]-[20] at the end of the judgment in Austlii). Do you find his Honour’s reasons convincing?
- I find it convincing that the infringer must explain themselves, that the police who have no special land rights, have the onus upon themselves
With reference to Roy v O’Neill, explain the difference between an implied licence to enter premises and statutory authorisation?
- considers the breadth of the ‘lawful communication’ purpose for which a licence to enter property may be implied on the authority of Halliday v Nevill.
- The High Court held unanimously that there was no trespass by the police officer:
  - that the implied licence to enter as far as the front door encompassed the purpose of checking on the welfare of an occupant
  - Came for a legal reason, developed a suspicion, asked for person to comply.
    - Not illegal
Self-defence is a defence both at common law and under ss 52 and 53 of the Civil Liability Act. What are the main differences between the two defences? Can a defendant rely on both?
- S 52 is the normal civil liability defense for self-defense, while s 53 is the excessive self defense defense
- Defendant better off with s 52
- 3A Provisions relating to operation of Act
  - A provision of this Act that gives protection from civil liability does not limit the protection from liability given by another provision of this Act or by another Act or law.
- Running common law and statute self defense simultaneous, for excessiveness
  - Common law defense does not have to be for unlawful action
  - Statutory self defense can determine if exceptional circumstances, is a broader defence
Irlam v Byrnes is an interesting decision given the prevalence of “road rage” in modern times. What defences were considered by the Court? What defences were successful?
- Flung person off car that was holding on
- Intention to cause injury, exclusion to cla 3(1)(a),
A 10-year-old boy is taken to the doctor by his mother for a Hepatitis B vaccination. In the doctor’s surgery the child says to the doctor “Don’t you stick that needle in my arm.” The child’s mother says to the doctor as she restrains her son “Quickly give him the jab – he’ll get over it”. The doctor gives the injection. Two questions: i) Did the doctor commit a tort? ii) Did the mother commit a tort?
- Gillick v West Norfolk Health Authority [1986] AC 11
  - There may be issues with consent capacity, if the son understood why the needle was being inserted and did not consent, the doctor liable for battery, mother for recklesness (?).
  - If child is just scared of needles, likely does not have the capacity to consent, therefore no issues. However, tort of false imprisonment is there as she is denying movement caused the plaintiff’s detention: to have ‘overborne the plaintiff’s will’.
Emily has taken up soccer as a hobby. She is dribbling towards the goal when she is violently kicked in the knee by an opposing player. Emily kicks the player back saying “If you do that again I’ll come and get you after the game.” Two questions: i) Did the opposing player commit a tort? ii) Does Emily’s conduct constitute a tort?
- McNamara v Duncan (1971) 26 ALR 58
- If the opponents contact was
  - Deliberate and forcible contact
  - act outside normal contact
  - Then nonconsensual battery
- Pallante v Stadiums Pty Ltd (No 1) [1976] VR
  - ‘the consent to the infliction of blows causing bodily harm cannot be allowed to extend to the infliction of blows intended to do or calculated to do serious bodily harm’
- Was the opponent deliberate, if so then liable, if not then not liable
- Emily was definitely liable to tort of battery and conditional assault, may be able to use self defence, not likely to win
  - Retaliatory strike
Explain the elements of the cause of action in Wilkinson v Downton (1897).
- Wilkinson v Downton [1897] 2 QB 57
  - Jokingly told Mrs Wilkinson, that her husband had been involved in a serious accident and broken both his legs.
    - As a result of this statement, Mrs Wilkinson suffered ‘nervous shock’, not previously had
    - The defendant has … wilfully done an act calculated to cause physical harm to the plaintiff –
      - that is to say, to infringe her legal right to personal safety, and has in fact caused physical harm to her.
    - 3 identified elements
    - 1. a wilful act of the defendant: in this case a statement intended to shock the plaintiff, being an act;
    - 1. calculated to cause harm; and
    - 1. in fact causing harm to the plaintiff.
    - ‘calculated’
      - whether the behaviour was ‘foreseeably likely’ to produce actual nervous shock
Problem Question 1
- While David’s garden is quite small, he has enthusiastically pursued his love of gum trees. Inspired by Murray Bail’s beautiful 1998 novel Eucalyptus, gum trees have come to occupy most of his garden including the boundary with his neighbour, Artemesia. Artemesia has long complained of the impact of the trees on her garden and house, where they obstruct light and shed leaves on her land. As a professional artist she particularly objects to the loss of light. As the trees have grown, relations have deteriorated and Artemesia finally takes matters into her own hands. One Saturday afternoon she climbs on to the boundary fence and up into one of the Sydney blue gum trees with a saw. David eventually hears her sawing at the tree and comes out. As he stands looking up at Artemesia initially speechless, Artemesia calls down: ‘Don’t come any closer or you’ll be next with this saw!’
- Advise the parties as to their possible liabilities in torts.
  - Artemisia:
    - Can sue trespass so long as the defendant directly causes some object to come into contact with the property such as leaves, branches
      - where a defendant causes a bulldozer to move soil or rocks onto the plaintiff’s property (Watson v Cowan [1959] Tas SR 194)
      - or allows cattle to go on the plaintiff’s land (Yakamia Dairy Pty Ltd v Wood [1976] WAR 57; Lade & Co Pty Ltd v Black [2005] QSC 325)
      - Gregory v Piper
  - David
    - Can sue trespass to chattel
    - Can sue for assault
    - Can sue for trespass to land
    - Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182,
      - Not the direct act of the person who spilled the oil
Problem Question 2
- Michael and Barney own and live on an organic market farm Green Leaves on the edge of the city. It is reasonably small - approximately 8 acres - and specialises in herbs, unusual salad leaf, and Asian greens. The farm prides itself on providing organic and responsibly grown produce. It supplies many of Sydney’s top restaurants and supplies to the public through the Carriageworks Market each Saturday. The market garden is 4 kilometres from Sydney airport. The location was chosen as it allows easy access to the central Sydney customers and yet is unaffected by pollution from the airport.
- A well known Australian airline deploys the Boeing A380 on it’s Sydney to London Heathrow route. Unfortunately, last year an engine fault occurred on a flight immediately upon take off. As a result, the plane circled back to make an emergency landing. Emergency protocol required that the plane’s fuel is ejected to reduce risks on landing. Green Leaves was directly under the path of the diverted plane and caught the end of the emergency fuel dump which should have hit the ocean. The fuel has ruined crop that is ready for market, seedlings, and is likely to result in the removal of organic status while the top soil is removed and replaced. The demanding reaccreditation process is likely to take at least 2 years.
  - Loss of income, trespass to chattels
- A number of months later, Briony, an established reporter from the international trade publication Flight, decides to stop at Michael and Barney’s home and business. Briony is an aviation journalist and is interested in the Boeing Max scandal, the failure of the A380, and the environmental impacts of aviation. She walks up to their home and knocks on the door. When Barney answers she explains that she wants to do a piece on the A380 and that the impact on Green Leaves will provide an interesting and ‘relatable’ introduction to a larger piece on Boeing. Barney explains that they are in the process of reaching a settlement with the airline and that they don’t want to disrupt negotiations. He adds that the incident has put added strain on what was already a business and relationship under stress and neither wish to be interviewed.
- Briony says she understands and asks if she could use the bathroom before getting back on the road. Barney shows her the way. While in the bathroom Briony realises that the difficulties the couple are facing only add to their value as a ‘human interest’ opener for her more technically driven article. She quietly leaves the bathroom and begins to look around the house.
  - Invitation does not extend, Kuru v New South Wales (2008) 236 CLR
- She finds and steals a photograph of the two.
  - Tort of chattel
- She also hears the couple arguing and manages to sneak up to the doorway and photograph the two of them in a clearly heated discussion.
  - Trespass, Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479,
  - American invasion of privacy - reasonable expectation of privacy
  - Trespass to person
- Michael hears the shutter noise on her camera phone and quickly shows her out, shoving her at the door when she stops with the intention of turning and apologising for her behaviour.
  - TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333
- Advise the parties as to how the torts governing trespass to persons and trespass to land may affect them. Please ignore any questions regarding damages for loss of property. Much like the plane, we will circle back to consider this when we get to economic loss later in the session.

Week 4:

What are the “elements” of the tort of negligence?
- 1. that the defendant owed the plaintiff a duty of care; - Duty of care
- 1. that the defendant breached that duty of care by negligent conduct; and - Breach of duty
- 1. that the defendant’s breach caused the plaintiff actual damage which is not too remote from the breach. - Injury
Explain Lord Atkin’s “Neighbour Principle” as stated in Donoghue v Stevenson?
- You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
- Who is my neighbor?
  - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation
Explain ‘reasonable foreseeability’ and what is meant by the term ‘unforeseeable plaintiff’. To what extent do the cases of Haley v London Electricity Board and Levi v Colgate Palmolive help in your understanding of this concept?
- Unforeseeability
  - Their injuries could not reasonably have been anticipated by the tortfeasor.
- A plaintiff will have to demonstrate that a reasonable person in the position of the defendant would recognise that negligent behaviour would foreseeably cause injury to another person.
- Haley v London and Levi v Colgate are circumstances that are unique to those individuals, not something one could reasonably foresee.
Refer to the quote from Kirby J’s judgment in Harriton v Stevens (Text at p 200). His Honour says: “in so far as physical injuries arising from a positive act are concerned, it is accepted that if the reasonable foreseeability test is satisfied, the elusive additional component of a duty of care will generally exist”. His Honour does not explain why, but can you? (Note that his Honour’s use of the word “generally” accommodates exceptional cases where public policy may negate any duty, eg Shaw Savill).
- If you are able to reasonably foresee that the action that you will commit will cause harm, then you owe the person that you will cause that harm a duty of care
What is meant by an ‘established duty category’? Give some examples. Can you also give an example of an established duty category where a duty was denied for policy reasons?
- Established category:
  - a relationship where it is presumed that a duty of care exists.
  - a teacher and pupil, doctor and patient, or employer and employee.
- Hill v Chief Constable of West Yorkshire [1989].
- House of Lords denied that a duty of care existed between police and criminals committing crimes
  - Due to the protection of police from defensive policing - not worrying about lawsuits
Refer again to Kirby J in Harriton. His Honour refers to “actions that … lie on the boundary of an established duty category” (but again offers no explanation or description). What is one case in the readings that you would put in this category?
- Modbury Triangle Shopping Centre Pty Ltd v Anzil Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254,
- CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 39
- Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258
- If product explodes, and hits someone else (like drink or new microwave) not owning the product
Levi v Colgate-Palmolive Pty Ltd (Week 3) and Grant v Australian Knitting Mills were claims by sensitive consumers; explain the different outcomes.
What is the scope of a manufacturer’s duty of care?
- take reasonable care to ensure that their products do not injure consumers.
What is the scope of the duty of care of an occupier? Refer to Modbury Triangle Shopping Centre Pty Ltd v Anzil. What does the decision in Adeels Palace Pty Ltd v Moubarak say about established duty categories?
- the High Court held that the scope of the occupier’s duty did not extend so far as to include the late-night lighting of a public shopping centre car park to prevent a random criminal attack.
- for it is well recognised that there is no general duty of care to prevent third parties from causing such damage.” (original emphasis)
Referring to Modbury, why are cases of pure omission exceptional or novel? When will a defendant be liable in negligence for a “pure omission”?
- It is, however, exceptional to find in the law a duty to control another’s actions to prevent harm to strangers.
- In the Modbury case, the court confirmed the general reluctance to find a duty of care for pure omissions, unless there is some special feature or relationship that justifies such a duty.
What is the scope of the employer’s established duty of care to the employee? Did Koehler v Cerebos (Australia) Ltd come within this established duty category or was it a novel case? Why? When will a duty of care be imposed in a novel fact situation? Does the joint judgment in Sullivan v Moody (2001) 207 CLR 562 assist? Is the ‘list’ set out by Allsop P in Caltex Refineries (Qld) Pty Limited v Stavar at [104] useful?
What is the role of “public policy” in the duty of care question?
- Policy factors to which the court will have regard are
  - administrative,
    - concerned with the capacity of the courts to process claims of the kind in issue.
    - Will it produce a flood of cases
  - ethical or moral,
    - whether restrictions on freedom or action are justified by the imposition of the duty
  - economic,
    - concerned with whether the cost of imposing a duty will outweigh the benefits
  - justice
    - imposition of a duty on defendants in that class of case is fair and reasonable in contemporary society.
    - Overlap ethical and economic
  - and public interest factors.
    - concerned with the effect on the public interest as opposed to the private interests of plaintiffs and defendants.
What are the boundaries of the advocates’ immunity? What are the arguments for and against the retention of the advocates’ immunity?
- Giannarelli v Wraith (1988) 165 CLR 54
  - confirmed the long-standing immunity of legal advocates from suit in negligence in respect of acts or omissions in the conduct of cases in court and in respect of any out-of-court work closely connected to the conduct of the case in court.
  - Re-examined in Saif Ali v Sydney Mitchell & Co [1980] AC 19
- Abolished in UK in Arthur JS Hall v Simons [2000] 3 WLR 543
- D’Orta-Ekenaike who had been charged with rape, alleged that, as a result of breach of duty by Victoria Legal Aid and the defence barrister involved in his criminal defence, he continued to suffer loss and damage
  - held that the advice about the guilty plea was intimately connected with the conduct of the criminal trial because the decision to plead guilty affected the conduct of the case before the court
- Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR
  - the giving of advice either to cease or to continue litigating does not itself affect the judicial determination of a case.
For each of the following, assuming that injury to the plaintiff is foreseeable, does the duty relationship: (A) arise from the defendant’s positive act causing the plaintiff a physical injury; (B) come within an established duty category; (C) lie on the boundary of an established category); (D) fall into a novel category:
(a) Ophthalmic surgeon performs non-essential cosmetic surgery on plaintiff patient’s unsighted right eye, without warning patient that the surgery may lead to blindness in her sighted left eye. - B
(b) Defendant bus driver opens the door of the bus while the bus is still moving and the plaintiff passenger, a young boy who is standing near the door, falls out of the bus.- B (driver/passengers)
(c) The defendant shopping centre does not have any system for collecting abandoned trolleys left in the car park, and has programmed the car park lighting to turn off at 9 pm when the shops close to the public. The plaintiff works nights in a supermarket in the centre, and is leaving work at midnight when, in darkness, she falls over a trolley that has been abandoned in the car park. - B
(d) Lawyer fails to inquire whether there are any road-widening proposals affecting a house that the plaintiff client is considering purchasing. The plaintiff buys the house, a six-lane highway is subsequently constructed outside the house, and the property is now worth half what the client paid for it. - B
(e) Defendant’s employees dig a trench in the footpath and leave it while they go for coffee. The plaintiff, a blind pedestrian, falls into the trench.- D
(f) Lighting ignites a tree in the plaintiff’s yard. The plaintiff throws a bucket of water on the tree but fails to make sure the fire is fully extinguished. It isn’t. The fire starts up again and spreads to her neighbour’s yard, causing property damage. - D - reasonable foreseabilty. Not a positive act, it is an omission to check that the fire is out
(g) Defendant and his friend, the plaintiff, are waiting for a ferry at Milson’s point when the plaintiff slips on a banana skin and falls into the harbour.- D - omission to pick up banana peel for NSW transport (for train station)
(h) Defendant and his friend, the plaintiff, are waiting for a ferry at Milson’s point when the defendant pushes the plaintiff into the harbour as a practical joke. - A if there’s harm
(i) Defendant is a lifesaver at Bondi Beach when he sees the plaintiff swimmer struggling in the surf. - B

Carl Stychin argues, ‘Duties arise from the demand upon us to be attentive to the vulnerability of others’ p 346.

(a) With reference to the Stychin article discuss different moral and ethical values which underpin the value of personal responsibility compared with vulnerability in determining duty of care.
(b) Should vulnerability, as a factor in determining novel duty, include structural as well as personal factors?
- If vulnerability is not a factor in determining novel duty, then they become unfairly affected
  Week 4B:
  Problem One
  Emily has had a long career in soccer: First, as a player at club, national and international level, and after that as a coach. For the last 7 years she has visited her doctor sporadically and then on a more regular basis complaining of growing levels of forgetfulness, disorientation, and mood swings. Her doctor was generally dismissive and Emily too busy to take up the matter elsewhere. Six months ago, however, she was finally referred to a neurologist. Two months ago she was diagnosed with a form of dementia.
  Emily is aware that there is growing evidence that the repeated head traumas experienced in some sports might be associated with dementia in later in life. Emily was well know for her almost unparalleled skill heading the ball. Indeed it was something of a signature move for her.
  Martha, Emily’s daughter, is trying to help her mother decide whether she should pursue a legal case against either her doctor or the Australian Soccer Association. She believes that the doctor has been negligent in his failure to diagnose the disease. She also believes that the ASA was negligent in not warning of the dangers of the aspect of play. Martha wishes to understand the legal process to properly begin to support her mother in this decision and asks you to explain to her whether the doctor and the ASA owed her mother a duty of care?
Emily v Australian Soccer Association & Doctor
Doctor
- Duty of care
  - Does D owe responsibility to plaintiff? - established category - salient features
  - Yes, the doctor and patient DoC is well documented, Roger v Whitaker
- Breach
  - It is arguable that the doctor was reckless,
    - Roger v Whitaker reasonable doctor test
      - in similar circumstances would a colleague have diagnosed her earlier or at least referred her for further tests or consultations,
- Causation
  - If the delay in diagnosis has resulted in harm or deterioration of her condition, she might have a case.
- Damage
  - Diagnosed with a form of dementia
- Remoteness
  - Recency
    - The patient has had an ongoing relationship with dr, no recency issues
  - Chain of causation
    - The patient’s ongoing relationship was likely not breached by trading dr’s or skipping appointments
- Defenses
  - contributory negligence/intoxication/recreational activity
  - Recreational activity defense may play here, but as a profession the onus is likely higher on the dr’s part
    - However this doesn’t directly involve recreational activities.
Australian Soccer Association
- Duty of care
  - Does D owe responsibility to plaintiff? - established category - salient features
  - Established category - employer employee Kuhl v Zurich Financial Services
  - Recreational activities
- Breach
  - Did not warn players or coaches that extended rough contact with ball may cause dementia according to new study
  - S 5B of CLA - reasonable foreseeability
    - Would have to prove that a portion of the injuries resulted when the reasearch for dementia came out and the risk was foreseeable
- Causation
  - the delay in diagnosis has resulted in harm or deterioration of her condition, she might have a case.
- Damage
  - The diagnosis was exacerbation dementia
- Remoteness
  - Recency
    - The employee has had an ongoing relationship with organization as a player and coach, no recency issues
  - Chain of causation
    - Direct chain as long as she played as a player and then coaching, no long breaks
    - However she has a voluntary assumption of risk when continuing to headbut ball after research came out
- Defenses
  - contributory negligence / intoxication / recreational activity
    - Contributory negligence argument in that her signature move was the headbut, likely try to say that she extended the risk herself to a level that may have required warning
    - Could argue that only her level of contact would require any kind of warning
      Problem Two
      George and Jillian decide to buy a winery in the Hunter Valley. The premises include all the facilities required to harvest grapes into wine. The area is approximately 5 hectares and is bordering on some of the more well-known wineries such as Petersons and Audrey Wilkinson and is very close to Tulloch and De Bortoli Wines in Pokolbin. There is a wine cellar large enough to allow wine tasting for visitors during opening hours. Accommodation facilities are also included as is a large restaurant and function centre. The previous owners were producing six varieties of red and five whites in a good year. They also exported several blends to China and New Zealand.
      The grapes on the vines were four weeks away from being picked and George and Jillian were very excited about their first batch of wines. A winery directly adjacent to theirs called Royce wines introduced an experiment chemical called “mettle” onto their vines known to increase the yield of the crop and add a certain body to the texture of the wine. This special chemical was imported from France and has had mixed reviews. It is known to enhance red varieties but could be harmful to white varieties. Royce wines only harvests red wine. A vintner hired by Royce wines is out spraying their vines with this special chemical when the wind changes direction. A large portion of the chemical lands on George and Jillian’s vines unbeknown to them. The next day George notices a funny odour on his white grapes but thinks nothing of it.
      A week later George is out inspecting his crop and notices that his white grapes are discoloured. He calls in his own Vintner to inspect the crop and is told that the whole crop of white grapes has been destroyed and it’s too late to replant for this season. The total crop cannot be picked for production and must be cleared as a precautionary measure to prevent potential contamination of his red varieties. George and Jillian are very upset and ask the Vintner to conduct a chemical analysis. The Vintner reveals George and Jillian’s crop was contaminated with “Mettle” the experimental chemical used in France. The cost to George and Jillian in lost sales of white wine for this season amounts to a million dollars.
      Do George and Jillian have an action against anyone for the destruction of their crop and if so, does any potential defendant owe them a duty of care?
- George and Jillian v Royce wines
- Duty of care
  - Does D owe responsibility to plaintiff? - established category - salient features
    - It could be argued that Royce wines or their vintner owed a duty of care to George and Jillian to ensure that their use of chemicals didn’t harm neighboring crops - Chapman v Hearse reasonable forseeability / salient features - vulnerability of plaintiff to adjacent land
    - Positive act that causes physical damage (Meandarra Aerial Spraying v GEJ & MA Geldard)
- Breach
  - the vintner spraying the “Mettle” carelessly
  - insufficient precautions were taken given the windy conditions
  - Reasonable vintner is the same position test - reasonable foreseability
- Causation
  - The mettle sprayed by vinter affected george and jillian’s crops, destroyed all white wine vines
  - Did not have conversation with neighbors
- Damage
  - The loss of income, loss of property, potentially damaging the soil and other red wine vines
- Remoteness
  - Recency
    - Not in question
  - Chain of causation
    - Chemical analysis confirms mettle caused damage, and facts claim defendant used mettle on a windy day
    - Neighboring land
- Defenses
  - contributory negligence / intoxication / recreational activity
    - Not applicable
      Negligence II -Breach of Duty
How does s 5B of the Civil Liability Act impact breach of duty?
- It is the criteria that evaluate if a duty of care has been breached
- Foreseeability
- Significance of the Risk
- Reasonable Person Test
- Factors for the Reasonable Person Test
  - Probability of Harm
  - Seriousness of Harm
  - Burden of Taking Precautions
  - Social Utility of the Activity
Consider the facts of Bolton v Stone in the Text at 9.4.3. Would the case be decided the same way under the Civil Liability Act? You might refer to Shaw v Thomas here.
- The House of Lords held in Bolton v Stone that the probability of a person being struck by a cricket ball outside the ground was so slight as to be almost negligible.
  - Foreseeability: Given that the ball had been hit outside of the ground on previous occasions, the risk was foreseeable.
  - Significance of the Risk: Based on the frequency of the occurrence (six times in 30 years), the risk can be argued to be insignificant.
  - Reasonable Person Test: Would a reasonable person have taken further precautions?
    - Probability of Harm: As per Bolton v Stone, the probability was deemed so slight as to be almost negligible.
    - Seriousness of Harm: While being hit by a cricket ball can be harmful, the combination of the rare probability with the existence of the 17-foot fence suggests that the seriousness was not so significant as to warrant additional measures.
    - Burden of Taking Precautions: The cricket club already had a 17-foot net, suggesting they had taken some precautions. The burden and feasibility of adding further protective measures (e.g., a taller net) would be factors to consider.
    - Social Utility of the Activity: Cricket, being a popular sport, has significant social utility.
- Very likely that the court would have found the same argument to be persuasive
Consider Shaw v Thomas. What did the Court decide about s 5B(1)(b)? How did the Court decide whether a reasonable person in the defendants’ position would have taken any precautions (s 5B(1)(c))? What was the significance of the Australian Safety Standards?
- Regarding s 5B(1)(b) - Significance of the Risk:
  - The Court had to decide whether the risk was not insignificant.
  - Given the severity of the injury, which included a fractured skull, and the height from which the child fell, it’s clear that the risk wasn’t insignificant.
- Regarding s 5B(1)(c) - Whether a Reasonable Person Would Have Taken Precautions:
  - Kirby J emphasized that a reasonable person in the defendants’ position would have taken precautions against removing bunk bed’s guard rail and ladder
- Perry v Harris, where it was established that documents like the Australian Safety Standards were instructive but were not the definitive tools to determine a breach of the duty of care
Refer to Tapp. How did the majority characterise the relevant risk of harm? How was the risk characterised in the lower courts? Explain the majority’s conclusion regarding breach of duty.
Explain the ‘calculus of negligence’ referring to relevant cases in your answer. Give one case example for each of the “calculus” factors in s 5B(2).
- The ‘calculus of negligence’ is a concept that courts use to determine whether a defendant has breached a duty of care once it’s established that the risk of injury is foreseeable and not insignificant.
  - This calculus involves weighing various factors to determine if the defendant’s actions were reasonable in the circumstances.
- s 5B(2)(b) - Likely seriousness of the harm:
  - Case Example: Ryan v Fisher (1976) 51 ALJR 125: The High Court emphasized the seriousness of consequences as a factor in determining negligence. If the risks inherent in the conduct have serious consequences when they eventuate, it weighs heavily in the calculus.
- Comparison
  - Probability of Harm:
    - Calculus of Negligence: Evaluates the likelihood that the defendant’s conduct would result in harm.
    - s 5B(2)(a): Explicitly considers “the probability that the harm would occur if care were not taken.”
  - Severity of Harm:
    - Calculus of Negligence: Considers the potential seriousness of harm that might result from the defendant’s conduct.
    - s 5B(2)(b): Looks at “the likely seriousness of the harm.”
  - Burdens or Costs of Taking Precautions:
    - Calculus of Negligence: Weighs the practicality and expense of taking precautions against the potential harm.
    - s 5B(2)(c): Considers “the burden of taking precautions to avoid the risk of harm.”
  - Social Utility:
    - Calculus of Negligence: Examines the societal benefits of the defendant’s conduct.
    - s 5B(2)(d): Evaluates “the social utility of the activity that creates the risk of harm.”
  - difference lies in their origins and application.
    - The calculus of negligence is a common-law doctrine that has evolved through judicial decisions over time
What is a reasonably foreseeable risk and how is a ‘not insignificant’ risk different?
- A risk which is not far-fetched or fanciful is real and therefore, foreseeable.
- Shaw v Thomas [2010] NSWCA 16
  - held that the ‘not insignificant’ test was more demanding than the common law test of ‘not far-fetched or fanciful’ ‘but … not by very much’
  - reiterated in Prouten v Chapman [2021] NSWCA 207
  - requirement for a ‘not insignificant’ risk imposes ‘a slightly more demanding standard’ than ‘not far-fetched or fanciful’.
- Reasonably foreseeable risk = potentially possible
- Not insignificant = possible -
  - uneven cement is possible to fall, but insignificantly likely
How is the standard of care adjusted for professionals?
- (1) A person practising a profession (a professional) does not incur liability in negligence …
  - if it is established that the professional acted in a manner that … was widely accepted in Australia by peer professional opinion as competent professional practice.
- (2) Peer professional opinion cannot be relied on …
  - if the court considers that the opinion is irrational.
- (3) The fact that there are differing peer professional opinions widely accepted in Australia
  - … does not prevent any one or more (or all) of those opinions being relied on.
- (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.
Apart from professionals, are there any other groups or populations where the standard of care is adjusted to take account of their characteristics? Please refer back to Jessica in this week’s Canvas quiz in your answer.
- Parents/children
- Smith v Leurs [1944] SASR 21
  - possible for infancy to operate as a defence to an intentional tort but much depends upon the facts of the case and the age of the infant
  - Parents may owe a duty in relation to positive acts
- McHale v Watson (1966) 115 CLR 199
  - 12-year-old boy was found to be not liable in negligence when he threw a piece of steel, about 15 cm long and sharpened at one end, at a wooden post forming a guard around a tree.
  - absent an “employment” relationship, parents are not vicariously liable for their children
  - Capacity - youth may not be able to foresee the harm
- Zanne v zanner
Returning to last week’s problem involving Emily and her career in soccer, how is scientific evidence treated in determining breach of duty? Refer to case law in your answer.
- Caltex v stavar - asbestos at the time
- Vozza v Tooth & Co Ltd (1964) 112 CLR 316
  - the plaintiff’s hand was injured by exploding glass despite wearing heavy leather protective gloves supplied by the defendant employer.
    - At the time:
      - no evidence that the employer could practically have provided better gloves, without impeding the work, or automated the relevant process to eliminate the risk.

Week 5B: Negligence

Problem Question 1
Orlando is an orthopaedic surgeon with a private practice. She is also a Visiting Medical Officer at the Bloomsbury District Hospital where she operates regularly. Leonard is a private patient who had a severe shoulder injury as a result of a fall during parkour training. The shoulder was repaired by Orlando under general anaesthetic at the Bloomsbury District Hospital.
Vanessa, another surgeon and the Head of the orthopaedic unit, asked Orlando if, whilst Leonard was under general anaesthetic, a number of her medical students might ‘practice’ certain examination procedures on several of Leonard’s joints. Without seeking permission, Orlando agreed and four students were allowed to perform external examinations involving touching, moving, and extending Leonard’s ankle, knee, and hip joints. Leonard was unaware of this until he was told several days later by Virginia, a student nurse who was in the theatre at the time. Leonard complained to the hospital administration.
Prior to the surgery, Orlando had told Leonard that he should have full movement in the shoulder afterwards. Medical evidence is that if he had not had the surgery his shoulder would have improved with time, but would never recover the full range of movement. Orlando warned Leonard of various risks associated with this type of surgery which might result in the slight restriction of movement in future. She did not warn him of a rare but known complication of the surgery which might result in a droop of his shoulder with pain and severe restriction of movement. This complication eventuated through no negligence on the part of Orlando in performing the surgery.
Leonard says that if he had known of the possibility of such a complication he might have considered not having the surgery at all. He says he certainly would have waited to see if his shoulder healed sufficiently on its own.
Virginia, the student nurse, is not popular with the medical students because of her actions. Roger and Lytton, two resident doctors employed by the hospital, take Virginia to the hospital morgue where there are two bodies openly visible. They lock her in the morgue. This is a familiar practical ‘joke’ at the hospital and the hospital administration are aware that it happens occasionally. The hospital has warned against the practice but have taken no other action to prevent it. Virginia was severely distressed by the experience. She was locked in the morgue for over an hour and has left the hospital because of the experience and its impact.

Orlando
- Defense against leonard claims:
  - Duty of care
    - Does D owe responsibility to plaintiff? - established category - salient features
    - Established category surgeon
  - Breach
    - Did not ask for permission to have students touch him - battery - vanessa and students
    - Did not inform patient of negligable risk
  - Causation
    - Students manipulated him while under - vanessa and students
    - Patient may have waited if they had known
  - Damage
    - Shoulder is injured due to surgery
    - Leonard was touched without permission while under - battery - vanessa and students
  - Remoteness
    - Recency
    - Chain of causation
    - Not in question
  - Defenses
    - contributory negligence / intoxication / recreational activity
      - Touching patient without consent is not likely to be justifiable - vanessa and students
      - Orlando
        
        No directness
    - Rogers v Whitaker
      - Has to be aware that the patient would attach significance to the small chance
Leonard
- Can sue for recklessness of the dr, breach of duty of care for allowing students to touch and move him without consent, and battery
- Can sue for breach of duty not informing him of that risk, however may or may not be likely to win unless he informed dr that that info was significant
  - Section 5P of the New South Wales Act
Virginia
- Can sue for tort of false imprisonment
  - 1. an intentional positive voluntary act of the defendant
  - 1. directly causing
  - 1. The total deprivation of the liberty of the plaintiff.
- Negligence
- Psychological harm
Hospital
- Will be sued for negligence
  - breach of duty towards victoria
  - vicarious liability orlando

Problem Question 2
Justin is a student at Middle Bay Private school. He is in year 5 and has two brothers who also attend the school. Justin normally brings his lunch to school but today he decides to buy it from the school canteen. The lunch special of the day is his favourite, spaghetti bolognaise. He tucks in and so do many of his friends some of whom order a large portion because it’s so tasty. Several hours later, Justin is feeling unwell and decides to skip dinner. He experiences severe stomach pains and vomits on several occasions. He mother is very worried about him and takes him to the hospital where he is diagnosed with food poisoning. He is admitted and is treated that evening. Justin goes home the next day but continues to experience ongoing stomach cramps for weeks. His GP diagnosed him with chronic diverticulitis caused from food poisoning. It appears upon investigation by the school that the mince used by the school canteen that day had passed its use-by date. Justin’s friends who also enjoyed spaghetti that day also experienced stomach cramps but not to the same extent as Justin. Friends in his group who didn’t partake in the lunch special had no health issues at all.
Justin’s younger brother Tristian who is in year 3 is a very energetic child. He loves playing on the school swings but is only allowed to do so when a teacher is supervising. At lunch time a teacher is always on playground duty and often stands close by the swings to supervise. The school has a strict “hands off” policy which means children must not touch each other. Tristian was playing on the school swings under the watchful eye of Monica, the teacher on playground duty. Just when Tristian was on the swings, Monica was briefly distracted by a scream from another student who was pushed over onto the ground. Monica raced over to see if she was okay. In the meantime, two other students reached over and pushed Tristian off the swings whilst he was in mid-flight. He bumped his head on the concrete paving and passed out. The ambulance was called, and he was rushed to hospital where he suffered concussion and haemorrhaging on the brain. He was placed into induced coma. A month later he still cannot walk and will be confined to a wheelchair for the rest of his life.
Justin’s older brother Sabastian is in year 6 and attends the school swimming carnival which is an all-day event. He a is a very good swimmer and was awarded several prizes last year for his excellence in the pool. He hopes to repeat that performance this year. The carnival is held in the school which has a 50-metre pool. Backstroke is his most successful style. The school uses mobile removable steps which are attached to the inside of the pool allowing easy egress. Sabastian enters his first race of the day and is leading the field. When he was just about to touch the other end of the pool on his first lap, he smashes into the mobile steps which were placed there in the previous event to allow a student to leave the pool mid race. Sabastian is in a lot of pain and is taken to hospital where is treated for two fractured ribs and a broken elbow. He also hit his head on the stairs and has damaged his spin. Doctors inform his parents that may never walk properly again and may be confined to a wheelchair for a period before needing a walking trolley.
Do Justin, Tristian and Sabastian have an action against anyone for the injuries they sustained? Outline if you think a duty of care is owed by any nominated defendant and whether this duty has been breached. You must refer to any relevant sections of the Civil Liability Act 2002 (NSW) and any relevant case law.
Justin

Duty of care to student, negligence in food preparation, breached duty of care and caused damage
Tristan
Duty of care to student on property, negligence on the school for not having enough teachers to support students. Damages are obvious
Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 16
The plaintiff must prove what precautions the defendant could have taken.
Sabastian
Duty of care to student on property, potential negligence in not removing obstruction, damages, however potentially obvious danger
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431,
- the majority of the High Court considered the obviousness of the risk as one factor going to the breach of duty question
  School
Duty of care to students
- Roman Catholic Church Trustees for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 16
  - probability of an accident occurring was low (none had occurred before) and because increased supervision of the playground would cause staffing difficulties at the school,

Week 6: Negligence III - Causation

In order to aid discussion in the class, please prepare answers to the following questions:

How does the Civil Liability Act 2002(NSW) regulate causation?
- The Civil Liability Act 2002 (NSW) regulates causation by stipulating that a negligence claim must demonstrate that the defendant’s negligence was a “necessary condition” of the occurrence of harm, and that it is “appropriate” to hold the defendant liable, taking into account the wider circumstances.
Explain the two-stage approach to causation and refer to case law.
- Causation issues
  - Factual causation:
    - that is, whether the defendant’s negligence was a cause of the plaintiff’s damage.
    - BUT FOR test
  - Legal responsibility
    - Should they be responsible
    - Scope of liability
  - Pledge v Roads and Traffic Authority (2004) 205 ALR
  - Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
What is the “But For” test and is it still relevant under s 5D of the Civil Liability Act 2002(NSW)?
- But for the act, the damage would not have occured
- S 5d is the legislative equivalent for but for test
- Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
- March v E & MH Stramare Pty Lt 1991 171 CLR 506
What cases has the High Court handed down on 5D and what is the impact of those decisions? In answering this question, please pay particular attention to Adeels Palace v Moubarak [2009], Woolworths v Strong [2012], and Wallace v Kam [2013].
- Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
  - comprises a two-stage approach to causation,
  - treating factual causation
  - and scope of liability as separate issues.
    - turned on the issue of causation under the Civil Liability Act 2002 (NSW).
    - any failure of the defendant to provide security personnel at its restaurant on New Year’s Eve was not a cause of the plaintiffs’ damage
    - s 5D(1)(a) is a statutory equivalent of the common law ‘but for’ test
- Strong v Woolworths (2012) 246 CLR 18
  - But for causation under the Civil Liability Act 2002 (NSW) was considered and applied
  - plaintiff slipped was a ‘sidewalk sales’ area outside a Big W store close to the ‘food court’.
    - The ‘side-walk sales’ area was under the control of Big W (Woolworths).
  - Woolworths had no system in place for the periodic inspection and cleaning - should have been around 20 minutes look at sidewalk
    - 4.5 hours without looking
- Wallace v Kam (2013) 250 CLR 375
  - how the courts are to determine whether it is ‘appropriate’ for the scope of a defendant’s liability to extend to harm caused beyond the requirement to state ‘whether or not and why’ a defendant should be liable.
  - in many cases the scope of liability question will be relatively straight-forward.
  - medical failure to warn case
Buljat v Coles considered the ACT equivalent of s 5D(1)(b) and (4) and referred at [87] to the High Court in Wallace v Kam: “In Wallace v Kam … [t]he court indicated that in a case within an established class, the normative question … could be answered by reference to precedent. However, in a novel case, the [provision] made it incumbent on the court to explicitly consider and explain, in terms of legal policy, whether or not, and if so why, responsibility for the harm should be imposed on the negligent party”. How did the normative question arise in Buljat and how was it resolved (or in other words, what precedent did the case establish)?
- Ruled against a customer who sustained injuries after slipping on grape in a Public Liability case.
  - Originally The Court held that although there was evidence that the floor had not been cleaned for six and half hours.
    - It was enough for employees to keep a proper lookout and simply clean as they go.
  - The Court held on appeal that there ought to have been at least some system which required staff to specifically identify and eliminate hazards.
    - The system needs to be adequate and there must be some evidence as to its effectiveness to protect customers.
    - at least once an hour.
Consider the case of Performance Cars v Abraham (Text at p 320). Do you think the plaintiff in that case would have succeeded under s 5D(2)? Why or why not?
- Given the above, it’s arguable that the harm (the need for respraying) would have occurred even without the defendant’s negligence. Under s 5D(2), the court would consider the situation subjectively, taking into account all relevant circumstances.
- Considering the English Court of Appeal’s decision that the defendant ‘takes the plaintiff as he finds him’, and the fact that the car already needed a respray, it’s plausible to conclude that the plaintiff might face challenges succeeding under s 5D(2). The defendant could argue that their negligence did not change the outcome for the plaintiff – the car would have required a respray regardless.
What is a novus actus interveniens?
- Monaghan Surveyors Pty Ltd v Stratford Glen-Avon Pty Ltd [2012] NSWCA 94
  - Novus actus interveniens
  - A situation in which the later act severed the causal link between the defendant’s negligence and the plaintiff’s damage,
    - If an event is found by the court to have severed the causal link between the defendant’s negligent act and the plaintiff’s loss, then the court may decide that the defendant should not be liable for the damage.
For each of the following descriptions of an intervening act, cite an authority and what it decided:
(a) a negligent act of the plaintiff following the defendant’s negligence;
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506.
plaintiff was injured when a truck owned by the defendant was parked illegally and obstructed the vision of the plaintiff, who was driving a car.
(b) a deliberate act of the plaintiff following the defendant’s negligence;
Haber v walker
(c) a criminal act of the plaintiff following the defendant’s negligence;
Hunter area health v presland
- Let out from mental wardl
- Went and killed sister in law
  (d) a negligent act of a third person following the defendant’s negligence (generally);
Strong v Woolworths Ltd [2012] HCA 5.
- The court had to determine whether Woolworths was liable for the plaintiff’s injuries, given that the immediate cause of the harm was the negligent act of an unidentified third person who left the chip on the floor.
Chapman v hearse
(e) a negligent act of a medical practitioner following the defendant’s negligence;
Mahony v J Kruschich
- Exacebated treatment, inexcusibly bad treatment sue original
  (f) a subsequent negligent failure of another professional to do what the defendant professional also failed to do;
Bennet v minister
Tabet v Gett [2010] HCA 12.
- The High Court held that while Dr. Gett was negligent in not ordering the CT scan earlier, the plaintiff failed to prove, on the balance of probabilities, that the earlier detection would have resulted in a better outcome. Thus, Dr. Gett was not held liable for the entire harm but only for the additional harm caused by the delay.
  (g) a deliberate or criminal act of a third person following the defendant’s negligence, which was within the scope of the defendant’s duty of care; and
Chaumentousky vs red guard
- Big sack of cash night
Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48.
- if the restaurant’s negligence in failing to provide security made it liable for the injuries resulting from the deliberate criminal act of the patron. The High Court held that while the restaurant had a duty to its patrons, the chain of causation was broken by the criminal act.
  (h) a deliberate or criminal act of a third person following the defendant’s negligence which was outside the scope of the defendant’s duty of care.
State rail v chu
- Protect criminal act of third party 3 weeks later away from premises.

Explain the standard of proof in torts cases?

In order to succeed in a claim in tort, a plaintiff must prove all elements of the cause of action being pursued.
- It is often stated by the courts that a party who asserts a fact bears the onus of proving it
So in a negligence claim, the plaintiff having established a duty of care will also have to show that it is more likely than not that the defendant was negligent and that the negligence caused the plaintiff’s loss

What does the maxim res ipsa loquitur mean and how does it affect the determination of causation? Would you apply s 5D(1)(a) or s 5D(2)?

“res ipsa loquitur’, which means ‘the thing itself speaks’, is an aid to a plaintiff in proving a prima facie case in some situations.
- a method of inferential reasoning
- Res ipsa loquitur elements
  - (a) the defendant must be in sole control of the situation; and
  - (b) the accident must be of a kind that would not ordinarily happen unless someone is negligent; and
  - (c) there is no explanation or knowledge of how the accident happened
- S 5D(1)(a) is the but for test, likely relevant to determining liability (factaul causation)
  - s 5D(2) relates to cases where the determination of causation requires a decision about what the person who suffered harm would have done if the negligent act or omission had not occurred.
    Problem Question 1
Jo runs a courier service driving her own truck. She collects a load of heavy steel joists which are to be delivered to a building site in North Sydney. Because she is in a hurry, she neglects to fasten the restraining straps over her load, leaving the joists loose on the back of the truck. While driving along Pacific Highway, she drives over a pothole and the sudden jerk causes one of the joists to fall onto the roadway. Dennis whose car is travelling behind Jo stops quickly to avoid the joist. Robert, who is behind Dennis, is speaking on his mobile phone and does not notice Dennis stopping until it is too late. Robert crashes into the back of Dennis’ car and both Robert and Dennis are injured. Whose negligence is the cause of the accident?
- Ultimately Jo, began the transaction more liable
- Chapman v hearse
- Robert negligently ran into dennis
- Parties
  - Dennis v Robert
    - The very risk of robert being on his phone materialised on the facts - does not sever causation
      - March v stramare
  - Dennis v Jo
    - March v stramare, the very risk of not fastening materialised on the facts, robert does not sever causation.
      - Contributory negligence
  - Robert v Jo
    - The very risk of robert being on his phone materialised on the facts - does not sever causation
    - Contributory negligence
  - Robert v Dennis
    - On his phone
  - Dennis & Robert v Local Council
    - S45 CLA, requires actual knowledge of pothole to be liable
Problem Question 2
Pat is a cook employed by Roberta. Roberta asks him to take delivery of a number of large drums of cooking oil whilst she is at the bank. The deliverer of the drums leaves them at the rear entrance of the restaurant and Pat who is alone, tries to carry them one at a time, into the store room. As he is carrying the second drum, he feels a sharp pain in his back and is unable to straighten up. On her return, Roberta takes him to hospital where it is confirmed that the injury to Pat’s spine is due to him lifting the heavy drums.
The prognosis is that the injury will heal in time and that Pat will be able to return to his usual duties in about 6 weeks. After Pat has been off work for some weeks in constant pain (neither medication nor physiotherapy help him), he decides to consult a chiropractor who manipulates his spine but negligently and permanently damages several of the vertebrae so that Pat is unable to work at all in the future. Pat sues Roberta alleging that the damage and inability to work was due to the injury sustained at work.
- Chiropractor is the only one liable
- S 5P/5O
- State Rail Authority of New South Wales v Chu [2008] NSWCA 14
- Parties
  - Pat v Roberta
    - Employer/employee - McLean v tedman
    - Large oil drums - not enough info to determine breach
      - Ambiguous instructions
      - Where was it supposed to be delivered - who delivers?
      - Potential failure to provide instructions and/or equipment
  - Pat v Chiropractic
    - Voluntary act after receiving medical treatment
    - Chomentowski v red garter restaurant
Problem Question 3
Barry was a bus driver for a bus company called “Busit” for 30 years until he retired in 1993. He is now 80 years old, and smoking was allowed on private buses in NSW until 1993. Barry was a non-smoker but has just been diagnosed with lung cancer. There are two types of lung cancer, but Barry has developed the smoking related type. He puts it down to being exposed to passive smoke for all the time he drove buses. He wife also smoked until she died 20 years ago.
Barry must go in for surgery to remove one of his lungs. The surgeon does hold out some hope as the cancer is contained in one lung only. There is a rare condition that patients can get if one of their lungs is removed and that is a failure of their other lung during surgery. The other possible side effect of surgery is a dry cough and a bit of trouble breathing for two weeks after the operation which clears up quickly soon after. Bob the surgeon doesn’t warn Barry of either risk. An alternative remedy for Barry is to remove part of his diseased lung instead of removing it totally but there is a 10% chance the cancer may return to the same lung. Barry undergoes surgery and is sent home. He then contacts his GP complaining of having a bad cough and trouble breathing. His GP informs Barry that this is a side effect of surgery that crops up on occasions.
Barry’s GP prescribes him some medication to relieve his symptoms. He walks into his local chemist and heads towards to counter to ask the pharmacist about his medication. Barry trips over on some cough medicine that had fallen off the shelf an hour ago. The glass bottle full of liquid had dropped on the ground and smashed. He is rushed to hospital where he is diagnosed with a severe back injury which will require 12 months treatment and result in possibly permanent damage. He can now only walk with a cane or a walking trolley.
Barry comes to you for advice and claims he would never have had the operation had his surgeon advised him of both risks. Advise Barry as to whether he will be successful in action against Bob the surgeon and the chemist for any of his injuries. Focus on the questions of factual causation and scope of liability under ss 5D and 5E of the Civil Liability Act 2002 (NSW) to assist you together with any relevant case law.
- Smoking
  - CLA does not apply to smoking related harm
  - Wyon v shirt breach
- Surgery
  - Rogers v Whitaker
  - S 5O and 5P for not telling about major lung issues
  - Subsection (3) of s 5D deals with the question of how to determine what a plaintiff would have done if the defendant had not been negligent, where that is an issue relevant to causation.
    - Counters hindsight bias
    - Elbourne v Gibbs [2006] NSWCA 127
  - S 5d
    - Factual causation
      - Not telling barry about surgery risks
    - Legal causation
      - Barry must show that it’s appropriate for Bob’s liability to extend to the harm he suffered. Since the harm (post-surgery complications) was a direct result of the surgery that he claims he wouldn’t have undergone if informed, this too seems to align in Barry’s favor.
  - Parties
    - Barry v Bob
      - Reasonably foreseeable, dr knew about it
      - Not insignificant
      - Reasonable dr would warn - 5P
      - No cause of action
    - Barry v Pharmacy
      - Occupier and lawful entrant
      - S 5B
        
        1a: reasonably foreseeable
        
        Not insignificant
        
        Reasonable that they would clean or put sign up
    - Barry v Busit
Week 7 - Scope Of Liability
- Explain the importance of the Wagon Mound cases in relation to remoteness. Explain any changes made to the common law by the Civil Liability Act 2002 (NSW) in this area.
  - The Wagon Mound (No 1) [1961] AC 388
    - ruled against the ‘direct consequences’ test
    - replaced it with a ‘reasonable foreseeability’ test for remoteness of damage.
    - Defendant successful - not foreseable
  - The meaning of ‘reasonably foreseeable’
    - The Wagon Mound (No 2) was whether the risk of damage to the ships by fire was reasonably foreseeable.
      - a risk of injury was reasonably foreseeable if it was a ‘real risk … which would occur to the mind of a reasonable man … and which he would not brush aside as far-fetched’ (643, Lord Reid)
      - Plaintiff successful
    - Applied in chapman v hearse
    - CLA not too different, emphasises principle of reasonable foreseeability in determining if damages were too remote.
- Both Wagon Mound cases concerned the same fire; explain how the damage could be considered unforeseeable in the first case but foreseeable in the second.
  - Wagon Mound (No 1) focused on whether the specific damage (fire) was foreseeable from the negligent act (oil spill).
  - Wagon Mound (No 2) took a broader perspective, asking whether any damage was foreseeable from the negligent act, making the defendant liable for all direct damages if the answer was “yes.”
- How do the courts characterise the “kind” of damage suffered by a plaintiff for the purpose of determining whether damage is too remote? Refer to the Wagon Mound cases and Hughes v Lord Advocate and Mount Isa Mines Ltd v Pusey, as well as five of the following: Doughty v Turner Manufacturing, Rowe v McCartney, Jolley v Sutton London Borough Council, Nader v Urban Transit Authority, Commonwealth v McLean, Gittani Stone Pty Ltd v Pavlovic, Metrolink Victoria Pty Ltd v Inglis, and Kavanagh v Akhtar. Note that none of these cases was governed by the Civil Liability Act.
  - Jolley v Sutton London Borough Council [2000] 3 All ER 409,
    - in which the House of Lords held that where the harm is of the same kind as that which is foreseeable, the precise manner in which it occurs need not be foreseeable
  - Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
    - plaintiff was employed by the defendant and went to the aid of two fellow employees who had been badly burned when an electrical switchboard exploded, due to the negligence of the employer.
    - Developed rare consequence of schizo
      - Held foreseeable consequence
    - Windeyer J held that ‘only harm of a like kind’ need be foreseeable but pointed out that ‘[t]his comfortable latitudinarian doctrine has however the obvious difficulty that it leaves the criterion for classification of kinds or types of harm undefined and at large’ (
  - Rowe v McCartney [1976] 2 NSWLR 72
    - referred to the comments of Windeyer J regarding the lack of criteria by which to define the type of damage for the purposes of the remoteness test and pointed out that the level of abstraction used would produce different results.
    - She had allowed a friend to drive her (the plaintiff’s) car in which the plaintiff was a passenger.
    - The friend had caused an accident in which he became quadriplegic.
    - The plaintiff developed a psychiatric condition which the medical evidence attributed to her feelings of guilt about the plight of her friend.
      - plaintiff’s illness ‘arose from (the plaintiff’s) own antecedent conduct which was not a cause of nor caused by the accident’
  - Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501,
    - considered that Rowe v McCartney was not authority for the proposition that mental illness can be divided into discrete categories or kinds.
      - it was caused in a manner which was different from that which was foreseeable.
    - 10-year-old boy who received a minor head laceration and bruising when he fell as he was alighting from a school bus before it had come to a stop.
      - Developed Ganser Syndrome
        
        defendant’s negligence was a material cause of the condition, so the remaining issue was whether the Ganser Syndrome illness was damage which was too remote to be compensable by the defendant.
  - Kavanagh v Akhtar (1998) 45 NSWLR 58
  - Mrs Akhtar suffered a permanent and debilitating left shoulder and arm injury when a heavy box of goods was dropped onto her in the defendant’s shop, as a result of the negligence of two of the defendant’s employees.
  - Akhtar cut her hair bc she couldn’t manage, w/o husband permission, resultiung in separation
    - Severe psychiatric illness
    - The Court of Appeal held that it was foreseeable that the plaintiff’s injuries would place strain on her marriage and that such strain might lead to a breakdown in the marriage which, in turn, might lead to psychiatric illness.
  - The fact that the plaintiff’s husband’s extreme reaction to her hair-cutting was unforeseeable was held to be ‘irrelevant in the light of cases such as Hughes and Nader, so long as psychiatric injury is itself regarded as a foreseeable consequence of the physical injury inflicted on the (plaintiff)’
- What is the “egg shell skull” rule? Give some examples.
  - egg-shell skull’ rule
    - a defendant will be liable for all damage caused by an act provided that the kind of damage is reasonably foreseeable.
  - Dulieu v White & Sons [1901] 2 KB 669
    - Take the plaintiff as he finds him
  - Smith v Leech Brain & Co Ltd [1962] 2 QB 405.
    - plaintiff was the victim of a burn injury to his lip while at work.
      - The cells of the lip tissue were in a pre-malignant state at the time of the burn, which triggered the cancer from which the plaintiff died.
      - Not too remote, even though not foreseable bc the original injury was
- Refer back to Buljat v Coles Supermarkets Australia Pty Ltd (hypochondria) and State Rail Authority v Chu (leg cast) in the Module 6 readings. Buljat and Chu which failed on scope of liability causation under the Civil Liability Act. The remoteness cases of Nader v Urban Transit Authority (intermeddling parents) and Pyne v Wilkenfeld (neck brace) were decided before the Civil Liability Act was enacted and also before March v Stramare was decided. If decided today, would Nader and/or Pyne succeed on scope of liability? Why/why not?
  - Probably not
    - Was the subsequent harm (i.e., interference by parents or incorrect hospital treatment) a foreseeable consequence of the initial negligence?
    - For Nader, if it is determined that the intermeddling by parents was not a foreseeable consequence of the bus accident, then the claim might fail under the current interpretations of the Civil Liability Act.
    - Pyne Medical mishandling or errors in treatment can be seen as foreseeable consequences when a person is negligently injured and requires medical attention.
      - Maybe chu
        One
        Chloramine gas is created when bleach is mixed with ammonia. It can cause acute but generally short lived irritation to skin and eyes, and similarly short term difficulties breathing. A cleaning company was recently employed to do a major deep clean of Boston Towers, a rather drab and unkempt building where a fungus was developing on the lower floors but moving progressively upwards. On completion, the company dumped bleach down the waste disposal just after a resident had disposed of a large quantity of industrial cleaning products containing ammonia. They had been using these products to address the fungal problem in their own apartment. Ellie is part of the Owners Corporation of the block. She is tidying up the disposal room on the 2nd floor when the fumes built to a level they work up the chute and fill the disposal room. She is knocked unconscious. One of the neighbours finds her and calls an ambulance.
        While chloramine effects are generally minor, Ellie has a strong reaction eggshell. She develops blistering and experiences serious difficulty breathing. When she arrives at the hospital emergency unit, Dr Yu administers the wrong drug, causing Ellie’s breathing difficulties to escalate. As a result, her heart and breathing stopped for almost 4 minutes and she sustained irreversible brain damage.
        Ellie can no longer work as a National Park ranger. Nor can she do the semi-professional ballroom dancing she was so good at. She cannot breathe well enough and has on-going chest problems. Ellie has suffered severe depression and has become alcohol dependent. The alcohol is now damaging her liver.
        Advise Ellie what a court would take into consideration in determining whether she has a successful claim in negligence.

Ellie - Corp

Duty of care
- Does D owe responsibility to plaintiff? - established category - salient features
- Contracted employee employer
Breach
- DID THE DEFENDANT KNOW OF THE RISK, SHOULD THEY HAVE?
  - s 5B
    - The risk was foreseeable - sds info for disposal
    - The risk of creating mustard gas in not insignificant
    - Reasonable person, much less company, would follow sds
      - The seriousness of the harm is medium-severe
      - Burden is small - take somewhere else
      - Social utility for this does not exist
Causation
- S 5D
  - Infer factual causation
    - But for dumping the bleach, ellie would not have been knocked out of injured
  - Scope of liability
    - it is appropriate for scope of negligent persons liability to extend to harm to caused
      - Is the purpose of the category to hold this person liable
        
        Argued that it is typically employee protection from employer
Damage
- Physical injury
- Economic loss
- Mental harm potentially
  - Debate as to whether the doctor caused this
Remoteness
- Recency
  - Damage was recent, potentially arguable that other client putting ammonia in bin is novus actus interveniens
- Chain of causation
  - indirectly caused injury and potential economic loss, likely caused further mental harm and injury - alcohol and mental issues - depression
  - Eggshell skull rule states that ellie’s excessive injury is still their fault
  - Chapman v hearse holds company at fault
    - the original negligent party (if there was one) might be held responsible for subsequent injuries even if caused by a third party’s negligence, like a doctor’s.
Defenses
- contributory negligence / intoxication / recreational activity / novus actus interveniens
  - Potential issues with owners corp leaving mold too long, causing the issues in the first place
  - Medical exemption - novus actus interveniens does not apply unless egregious (potential argument)
    Ellie - Dr
Duty of care
- Does D owe responsibility to plaintiff? - established category - salient features
- Dr patient
Breach
- DID THE DEFENDANT KNOW OF THE RISK, SHOULD THEY HAVE?
  - s 5O
    - Wrong drug is not widely accepted
    - Peer opinion should be rational on this
    - Likely not differing opinions - depends on the drug
    - n/a
Causation
- S 5D
  - Infer factual causation
    - Material cause, not sole cause (strong v woolworths)
    - But for dr negligence, condition would have healed easier, and potentially avoided severe damage to body
  - Scope of liability
    - Dr should be liable
    - Correct usage of category
Damage
- Physichal injury
- Mental harm
- Economic loss
Remoteness
- Recency
- Chain of causation
  - Unsure which conditions are caused by original injury and which by dr neglgience
  - Chapman v hearse holds dr at fault
    - the original negligent party (if there was one) might be held responsible for subsequent injuries even if caused by a third party’s negligence, like a doctor’s.
  - Akhtar
    - Still claim the remote damage as part of dr negligence
Defenses
- No defenses

Two
Note: The Motor Accident Injuries Act 2017 (NSW) applies to all car accidents in NSW and affects the manner in which claims are made, compensation available and victims’ ability to bring common law claims.
Dustin is 12 years old and is in year 6 at Hawkins Public School, a primary school run by the NSW Department of Education. Each afternoon after school, Dustin waits in the queue within the school grounds to catch a school bus (a state government bus) which drives into the school driveway to pick up the children. The bus then follows a route through Hawkins to Ruby Fields where Dustin lives some 4 kms from the school. There is always a teacher on duty at the bus queue in the afternoons. One afternoon earlier this year, Dustin was misbehaving on the queue shouting at other children and generally causing some disruption. The science teacher, Scott Clarke, was on duty. He took Dustin to task about his behaviour and - as a punishment - he confiscated his bus pass and refused to allow Dustin to board the bus.
Dustin left the school grounds on foot and decided to walk the 4 kilometres home, though he had never done so before, always having depended on the school bus. When he was about a kilometre from the school walking down the right hand side of a narrow laneway, Dustin was hit by an unknown car which did not stop after the accident and which has not been identified, despite a police investigation.
Dustin received serious head, back and leg injuries and was found unconscious on the road by a passer-by apparently only minutes after the collision. Dustin says he cannot remember any of the details of the accident other than being struck from behind. An inspection of the roadway after the accident revealed a tyre skid mark some 6 metres long and a car paint scraping along a concrete wall on the right-hand side of the lane. The police report (written by Jim Hopper) states that this evidence points to the possibility that the unidentified vehicle was on the wrong side of the road at the point of impact.
Dustin was rushed to the Hawkins General Hospital where he was a patient for six weeks. During a physiotherapy session at the hospital, whilst having therapy for his fractured legs, he lost his balance and fractured his wrist. There is no suggestion that either the physiotherapist or the hospital was negligent.
Dustin has some permanent disabilities as a result of the accident and his mother Claudia wishes to take action on his behalf against the school and against the Nominal Defendant, as the driver of the car which hit Dustin has never been found.
Advise all parties as to their rights & liabilities in tort.

Claudia - Scott
Duty of care
- Does D owe responsibility to plaintiff? - established category - salient features
- Teacher student category
Breach
- DID THE DEFENDANT KNOW OF THE RISK, SHOULD THEY HAVE?
  - s 5B
Causation
- S 5D
  - Infer factual causation
    - But for teacher confiscating pass, Child would not have walked home and got hit (strong v Woolworths)
  - Scope of liability
    - Yes, liability should be extended
    - Slightly out of bounds of purpose of category
Damage
- Physical damage
- Mental damage potentially
Remoteness
- Recency
  - Maybe in question as to the time apart that kid walked
- Chain of causation
- Was the harm of a kind that was reasonably foreseeable
  - yes, damage not too remote
  - Novus actus interveniens
    - Voluntary act
      - Haber v walker
Claudia - Nominal defendant
- Nominal Defendant: In NSW, where an injury is caused by an unidentified vehicle, claims can be brought against the Nominal Defendant.
- Potential Claim: Given the car that hit Dustin was never identified, Claudia can bring a claim against the Nominal Defendant for Dustin’s injuries.
  - Doc
    - Driver - road
  - Breach
    - Hit in back, driver on wrong side of road
  - Causation
    - Evidence & Causation: The police report suggests that the unidentified car might have been on the wrong side of the road, which points towards negligence on the part of the unidentified driver.
  - Damages: Under the Motor Accidents Injuries Act 2017 (NSW), Dustin could claim both statutory benefits (medical treatment, lost earnings, etc.) and damages if he satisfies the requirements, such as not having a “threshold injury.”
- Holloway v McFeeters (1956) 94 CLR 47
- Limitation: If Dustin’s injuries are considered “threshold injuries” (e.g., soft tissue injuries or minor psychological injuries), then his compensation might be limited.
  - Not the case
Claudia - Hospital
- Likely nothing as no negligence suggested

Three
Jacinta works at Luna Park as a ride attendant and managers all the rides. He has worked at Luna Park for 25 years and trains all other staff on how to operate all the rides and other amusements. He is 62 and is overweight, a smoker and drinks heavily. He has not felt well over the last few days and has complained of chest pain to centre management. He wanted to go home this particular day because he wasn’t feeling well but management insisted, he stay and operate the big dipper as they were short staffed.
Several people walked into the cars of the big dipper with Jacinta’s supervision. Passengers are secured by a padded bar that comes down and locks into place and is also something to hang onto during the ride. As customers were getting to their seats and before the padded bar had come down locking them into place, Jacinta collapsed onto his controls causing the cars to jolt forward abruptly. Several people who were still standing at this moment fell over and hit their heads. Two women were taken to hospital with head injuries. One woman will lose the site of one eye and the other permanently damaged a nerve in her spine making it difficult for her to carry out everyday tasks. Other passengers sustained minor injuries. A third woman went into shock and was diagnosed with a recognised psychiatric illness which will require long term psychiatric treatment.
The two women who sustained head injuries can no longer work and require ongoing care to assist them with home duties. Their spouses have now become depressed because of what’s happened to their wives and have withdrawn from the world and can no longer perform their work duties and have been laid off. They both had high paying jobs. They too require psychiatric treatment.
It appears Jacinta had a heart attack and required three stents to be inserted into three of his main arteries. He remained in hospital for 10 days before he was sent home. Jacinta has decided to resign from Luna Park because of what happened. He feels very guilty for causing injuries to several customers who were on that ride. He has lost all confidence and can’t manage to find another job making it more difficult for him to pay his mortgage especially as interest rates are very high now. He has defaulted on his mortgage the bank has repossessed his unit. The bank has sold his unit, but he still owes $100k to the bank as property prices have fallen dramatically.
Identify all remoteness of damage issues in the above scenario with the use of any relevant case law. Make a case for any plaintiff you identify in arguing that the harm they suffered was not too remote from the defendant’s negligence.

Remoteness of Damage Issues:
- Jacinta’s health: His pre-existing health condition, history of smoking, drinking, and symptoms he had displayed (chest pain) are significant.
  - Management knew he wasn’t feeling well but insisted he operate the big dipper.
  - There’s an argument that if someone with known health issues is placed in a stressful or physically demanding situation, a health crisis (like a heart attack) is foreseeable.
- Immediate injuries: Those who were still standing when Jacinta collapsed and had injuries from the abrupt jolt of the cars are direct victims of the incident.
  - The harm they suffered can arguably be said to be a direct and foreseeable result of Luna Park’s negligence in making Jacinta work despite being unwell.
- Psychological harm: The woman who went into shock and was diagnosed with a recognized psychiatric illness as a result of the incident.
  - Under the Civil Liability Act 2002 (NSW), there are provisions for the recovery of damages for psychological harm.
    - Given the traumatic nature of the incident, it’s arguable that this type of harm was foreseeable.
- Consequential harm to spouses: The mental suffering and subsequent job losses of the spouses due to the accident of their wives might be considered too remote by some.
  - However, one can argue based on the principle in Chapman v Hearse (1961) 106 CLR 112, where it was held that harm could be foreseeable if a direct victim’s injuries lead to secondary harm to others.
- Jacinta’s subsequent financial and psychological hardships: Jacinta’s loss of job, financial distress, and the emotional toll due to guilt might be perceived as a result of the incident.
  - Whether Luna Park could foresee this from their initial negligence (making him work despite health concerns) is debatable.
Case for Plaintiffs:
- Immediate injured victims: It’s reasonably foreseeable that making an unwell, experienced operator manage a ride could lead to operational mishaps causing physical harm to the riders.
  - This is a direct consequence of the park’s negligence.
- Woman with psychiatric illness: Given the sudden and traumatic nature of the event, it’s arguable that a foreseeable outcome of such an incident is a passenger suffering psychological harm.
- Spouses: While this is a tougher argument, using Chapman v Hearse, one could claim that the severe and traumatic injuries to their wives could foreseeably result in psychological and even financial harm to close family members, given the life-changing nature of the injuries.
- The Kind of Damage: In Hughes v Lord Advocate, it was established that the exact way the damage occurs need not be foreseeable, just the general kind. Thus, even if Luna Park did not predict the exact nature of the injuries the two women suffered, they might still be liable because injuries in general are foreseeable from malfunctioning equipment.
Plaintiffs
- Jacinta
  - Can’t find a job, overworked, potentially exacerbated heart attack, bank came for house
- Two women were taken to hospital with head injuries.
  - One woman will lose the site of one eye and the other permanently damaged a nerve in her spine making it difficult for her to carry out everyday tasks.
    - Directly affected by luna park
  - The two women who sustained head injuries can no longer work and require ongoing care to assist them with home duties.
    - Directly affect by luna park
- Other passengers sustained minor injuries.
  - Not likely to get much, still direct damage
- A third woman went into shock and was diagnosed with a recognised psychiatric illness which will require long term psychiatric treatment.
  - Direct damage by luna park
- Their spouses have now become depressed because of what’s happened to their wives and have withdrawn from the world and can no longer perform their work duties and have been laid off.
  - Indirect damage, still counts
  - The Wagon Mound (No 2)
  - Kavanagh v Akhtar (1998) 45 NSWLR 58

Week 8: Trevorrow

Questions
Please consider the questions below and draft responses for discussion in your seminar groups:

Lampard-Trevorrow was preceded by a number of cases brought by members of the Stolen Generations. On what grounds did the cases of Kruger (1997), Cubillo (2001), and Williams (1999) fail? Could alternative judgments make a compelling argument for a different outcome in Kruger, Cubillo, and Williams?

in Williams (time extension application), Studdert J was not satisfied that there was sufficient evidence available to the plaintiff to establish her case because the actions of the AWB were based upon policies of beneficial intent, according to the standards and values of the 1940s.
In Cubillo (trial), O’Loughlin J found that the Commonwealth had pursued a policy of assimilation based on what was thought to be in the best interests of the children at that time.
The litigants in Kruger were unsuccessful in claiming that the Aboriginals Ordinance 1918 (Cth) was unconstitutional. None of the Justices found the Ordinance contrary to s 116 of the Australian Constitution (freedom of religion), 9 and all Justices considered that there was a sufficient nexus between the Ordinance and s 122 of the Constitution (which confers legislative power to make laws for the government of a territory)

How did the court in the first instance and the Supreme Court of South Australia differ on the question of false imprisonment? Detail the precise legal reasoning of the two courts. Was the SA Full Court incorrect as a matter of principle?

In the initial case, the court found the State of South Australia liable for false imprisonment. The original judge likely took into account the lack of parental consent and the lack of any lawful justification for taking Bruce Trevorrow into foster care
On appeal, the Full Court reversed the initial ruling on the issue of false imprisonment.
- The Court stated that “the plaintiff’s restraint during his placement with the foster family was attributable to the family’s obligation to care for him and to his continuing immaturity, and is not a restraint of the required kind for the purposes of the tort.”
They concluded that Bruce Trevorrow’s movement was restricted due to his status as a child needing care, rather than as a result of an unlawful act of imprisonment.

Why is false imprisonment an important action in this context?

directly addresses the legality and human rights implications of forcibly removing Aboriginal children from their families without consent

Could you have argued the false imprisonment issue differently? Review the false imprisonment readings (Text at 3.4) and consider the following. Who was sued for false imprisonment, the State or the foster parents? The Full Court said at [285]: “It might be added that if this is a case of total restraint or total deprivation of freedom of movement, then all small children are, as a matter of fact, equally subject to the same restraint. Infants can go only where their parents or guardians take them or allow them to go.” Is this relevant in an action against the State. Is it relevant in an action against the foster parents? How does Kirsten Gray’s judgment assist with assessing this claim?

Yes, one could argue that any restraint resulting from an unlawful act, like removing a child without parental consent, should be considered “total restraint,” thereby constituting false imprisonment.
The State of South Australia was sued for false imprisonment.
No, it’s not directly relevant when suing the State, as the issue hinges on the legality of the State’s initial action of removal, not the general condition of childhood.
Yes, it could be relevant in an action against the foster parents as it pertains to the nature of the restraint experienced by the child while in foster care.
Neither the trial Judge nor the Full Court considered the issue of directness? Should they have? Would this have assisted the plaintiff or the defendant? What false imprisonment case authorities were considered? Are there any other false imprisonment cases discussed in the text that would have supported Mr Trevorrow’s case?
Yes, the issue of directness could have been important for clarifying the causal link between the State’s actions and the alleged false imprisonment.
addressing directness could potentially have clarified the State’s liability and possibly assisted the plaintiff.

How was the question of the duty of care determined? What salient features were considered?

The statutory role of the APB as “the legal guardian of every Aboriginal child” under section 10 of the Aborigines Act 1934 (SA)
object of the scheme was chiefly to protect Aboriginal children and create a close relationship between the state and Aboriginal children
The lack of consent from the parents for fostering the child

Drawing on short, specific, and focused quotations from South Australia v Lampard-Trevorrow [2010] 56, detail how the court fulfilled the requirements of a) breach, b) damage, c) causation, and d) remoteness. You were provided with a copy of this judgement to ensure that everyone was working with the same text. Please provide the paragraph references for each of your quotations.

Breach
- Gray J concludes that the State had the responsibility to exercise due care when removing the plaintiff from his family and placing him in foster care:
  - That fact imposed on the State a duty to ensure that the powers were exercised with due care. Due care in the circumstances involved, at a minimum, checking the facts, assessing the child, assessing the foster family and then monitoring the placement.”
Damage
- The court examines the damages related to the plaintiff’s separation from his family and how it was foreseeable that such separation would result in harm:
  - That fact imposed on the State a duty to ensure that the powers were exercised with due care. Due care in the circumstances involved, at a minimum, checking the facts, assessing the child, assessing the foster family and then monitoring the placement.”
Causation
- The court discusses the causal relationship between the plaintiff’s removal and the harm he suffered:
  - “His Honour decided ‘that there were, as a matter of probability, multiple causes of the plaintiff’s injuries and losses.’ It was significant, however, that from a commonsense point of view the plaintiff’s removal was a ‘material cause’ of his lifelong depression and its consequences.”
Remoteness
- foreseeable risks and consequences related to the breach of duty, which can be seen as indirectly addressing the issue of how “remote” or “direct” the consequences were.

What is the relationship between ‘standards of the time’ and ‘changing community standards’? How were both relevant in the Trevorrow cases? Again, provide quotations (with paragraph references) from any of the judgments. Critically consider whose history and from whose standpoint standards of the time are considered?

The concept of “standards of the time” refers to the prevailing ethical, social, and legal norms during the period when an action took place. On the other hand, “changing community standards” refers to the evolution of those norms over time, which may result in a different interpretation or evaluation of past actions based on current standards.
- the court considered the APB’s actions based on what was thought to be in the best interests of Aboriginal children at that time. However, given the changing community standards, those actions were later found to be damaging and wrong. The tension between “standards of the time” and “changing community standards” is especially evident when considering the APB’s “guardianship” role and whether their actions could be justified under the law and societal norms of the time.
“standards of the time” are defined by those in power,

Buti describes Bruce Trevorrow as the ‘ideal plaintiff’. What does Buti mean, and how does this contribute to our understanding of the potentially limited impact of the case?

Trevorrow’s personal circumstances and the facts of his case were particularly well-suited for legal action, making it easier to establish liability and harm
Well documented, highly emotional, highly impacted, clearly wronged

To what extent is a system of reconciliation and reparation preferable to individual cases?

Likely a good idea for general populace, with specific atrocities receiving special consideration
recognizing that these issues often impact entire communities,
more efficient and equitable, as it doesn’t require the substantial resources and time that individual legal cases often do

Please do a media search to identify different reparation models, both in Australia and internationally. Is there a model that you prefer?

Social Services
Example: The Truth and Reconciliation Commission in South Africa recommended various social services as part of its reparation policies.
Pros: Addresses long-term needs like education, health, and housing.
Cons: Requires sustained commitment, may be hard to implement.

The Stolen Generations is only one of the harms that Aboriginal and Torres Strait Islander peoples have experienced in the 250 years of Australia as a colonial-settler nation. What other harms might be addressed through Torts?

Terra nullius and native title

The Civil Liability Act was amended in 2018 in response to the Royal Commission into institutional child abuse. How does the Part 1B of the Act change the common law in relation to duty of care, breach of duty and vicarious liability? Would any of these statutory reforms be applicable in relation to the Stolen Generations?

Week 9: Negligence - Defences

Questions:

What will a defendant have to prove to establish a defence of contributory negligence at common law?

s 5R
- For that purpose—
  - (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
  - (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
s 5S
- In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated
- s 5S requires the courts to undertake the same comparison of parties’ culpability as required under the apportionment legislation

Evaluate the scope of contributory negligence under the Civil Liability Act 2002 (NSW).

The current New South Wales provision is comprised in Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9, headed ‘Apportionment of liability in cases of contributory negligence’:
- 9(1) If a person (the ‘claimant’) suffers damage as the result partly of the claimant’s failure to take reasonable care (‘contributory negligence’) and partly of the wrong of any other person:
  - (a) a claim in respect of the damage is not defeated by reason of the contributory negligence of the claimant, and
  - (b) the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage.
- (2) Subsection (1) does not operate to defeat any defence arising under a contract.
- (3) If any contract or enactment providing for the limitation of liability is applicable to the claim, the amount of damages recoverable by the claimant by virtue of subsection (1) is not to exceed the maximum limit so applicable.
Section 8 of the Act states that a ‘wrong’ means an act or omission that:
- (a) gives rise to a liability in tort in respect of which a defence of contributory negligence is available at common law, or
- (b) amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.
A two-stage process to apportion damages.
- The courts will:
  - (a) compare the parties’ responsibility and actions from the point of departure of the standard of care of the reasonable person (not moral culpability); and
  - (b) have regard to the role of each party’s failure in causing the harm suffered by the plaintiff.

What are the elements of the defence of voluntary assumption of risk? How has this defence been modified by the Civil Liability Act?

The elements of this defence were set out by the High Court in Roggenkamp v Bennett (1950) 80 CLR 292, 300
- (a) actually knew of the risk of injury; and
- (b) voluntarily accepted the risk of injury; and
- (c) understood the full nature and extent of the scope of the risk.

What is the effect of the Civil Liability Act 2002 (NSW) s 5L? How does it interact with the provisions in Division 4 of the Act?

In New South Wales the s 5L defence was first considered in Falvo v Australian Oztag Sports Association [2006] NSWCA 17,
Elements
- (1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
- (2) This section applies whether or not the plaintiff was aware of the risk.
So, when considered in conjunction with s 5L:
- Section 5L specifically focuses on “obvious risks” in “dangerous recreational activities.”
- Sections 5M and 5N expand on the general theme of risks: inherent risks and risks that have been warned against.
The case of Falvo v Australian Oztag Sports Association [2006] NSWCA 17 would have looked into how the “obvious risk” in a “dangerous recreational activity” was defined and interpreted in the context of the sport of Oztag.

Basten JA’s judgment in Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA applies rules of statutory interpretation to determine the meaning of ‘recreational activity’ in the Civil Liability Act 2002 (NSW). What rules does His Honour apply? Do you think it was possible to arrive at a different interpretation - why? (Hint: the ordinary meaning of the defined term was held to qualify (or “read down”) the statutory definition in Rennie Golledge Pty Ltd v Ballard (2012) 82 NSWLR 231 (see [128]-[132]) and Greater Shepparton City Council v Clarke (2017) 56 VR 229 (see [62]-[77]). Hint #2: Part 1A Div 5 of the CLA was inserted by the Civil Liability Amendment (Personal Responsibility) Act 2002.)

Basten JA’s Rules of Statutory Interpretation in Singh bhnf Ambu Kanwar v Lynch:
- Used the Literal Rule, considering the plain or ordinary meaning of “recreational activity.”
- Applied the Contextual Rule, looking at the broader intent and context of the CLA, especially given the emphasis on personal responsibility from the amendment.
- Possibly invoked the Purpose or Mischief Rule to discern the problem the legislation intended to address.
Potential for Different Interpretation?
- Precedents like Rennie Golledge Pty Ltd v Ballard and Greater Shepparton City Council v Clarke suggest the ordinary meaning can limit or “read down” a statutory definition.
- One might argue for a narrower understanding of “recreational activity” based on everyday language, even if the statutory definition is broader.

Refer to the majority judgment in Tapp. How did the majority decide the question of obviousness?

The majority justices found that the plaintiff, Ms. Tapp, did not successfully prove that her fall resulted from a deterioration in the surface of the arena.
Moreover, Ms. Tapp didn’t specify how the arena surface had deteriorated.
Due to this, the plaintiff’s claim was defeated by s 5L of the CLA, which posits that injuries caused by the materialisation of an obvious risk of a dangerous recreational activity do not hold the defendant liable.
Essentially, the majority deemed the risk of participating in the event on the given surface to be an “obvious risk” related to the dangerous recreational activity of campdrafting.

The NSWCA decision in Tapp was applied in Castle v Perisher Blue Pty Ltd [2020] NSWSC 1652 before it was reversed in the High Court. Do you think Castle would be decided differently in light of the High Court’s decision in Tapp?

Likely be thrown out or ruled negatively as tapp was overturned

What is a “risk warning” under Civil Liability Act 2002 (NSW) s 5M?

A ‘risk warning’ is a warning given in a manner which is reasonably likely to result in people being warned of a risk before they engage in a recreational activity
- s 5M: no duty of care will be owed in respect of a risk of a recreational activity if the risk was the subject of a risk warning.
- A defendant may not rely on a risk warning given to an incapable person
  - (including a child of a young age, or person with a physical or mental disability)
- except where the person was under the control of or accompanied by another capable person or their parent.

The risk warning defence under s 5M was established in Sharp v Parramatta Council. The warning was: “PERSONS USING THE PLATFORMS AND SPRINGBOARDS DO SO AT THEIR OWN RISK”. The Court’s reasons were stated at [31]: “The general risk involved in using the 10 metre platform was of injury from diving or jumping from the platform. In my view the sign warns of that risk. The risk to which the sign is directed is that involved in the activity of “using” the platforms and springboards. The use referred to is that of jumping and diving into the pool below. That describes the purpose for which the platforms and springboards were intended to be used. Thus, the sign warns that there is a risk of injury in undertaking the activity of diving or jumping into the pool below from the springboards and platforms, including the 10 metre platform.” Do you agree?

Did the incorporating party do enough to bring the term to the attention of the other party?
Objective approach: Would a reasonable person have been aware of the term?
Actual notice not required.
Parker v South Eastern Railway Company [1887] 2 CPD 416
- Trial judge directed jury to answer:
  - 1. Did the plaintiff read or was he aware of the special condition upon which the article was deposited?
  - 1. Was the plaintiff, under the circumstances, under any obligation… to read or to make himself aware of the condition?
  - Jury answered ‘no’ to each question

What is the effect of section 50 in Part 6 of the Civil Liability Act 2002 (NSW)? Consider the application of the section in Russell v Edwards [2006] NSWCA 19.

Russell v Edwards [2006] NSWCA 19
- Ashley Russell, was 16 years old and was a guest at a birthday party for 15 or 20 teenage guests, held by the defendants for their son at their home.
- The defendants knew that the under-age guests were drinking alcohol and even provided some of the drinks consumed by the plaintiff and others
  - defendants allowed their young guests who showed obvious signs of intoxication to use the backyard swimming pool.
  - The plaintiff dived into the shallow end of the pool, struck his head and was severely injured.
- The trial judge found that s 50 defeated the plaintiffs claim because all the requirements of the section were met: the plaintiff was intoxicated to the extent that his capacity to exercise reasonable care and skill was impaired, his intoxication caused his inability to judge the water depth and his injury was caused by his intoxication.
  - Self induced means voluntary in this case, ignorance is irrelevant
- Court of Appeal held that Ashley Russell’s intoxication was the direct cause of his injury
Section 50 of the Civil Liability Act 2002 (NSW) deals with the impact of an injured person’s self-induced intoxication on claims for damages. Specifically:
- If a plaintiff’s ability to exercise reasonable care and skill is significantly impaired due to their self-induced intoxication, and
- This impairment was a cause of the plaintiff’s harm,
In conclusion, Section 50 served to shield the defendants from liability by emphasizing the plaintiff’s own responsibility for his injuries due to his self-induced intoxication, despite the defendants’ potential negligence in allowing intoxicated minors to use their pool.

Explain how the provisions with respect to so called ‘good samaritans’, criminals, and apologists apply with reference to the Civil Liability Act 2002 (NSW).

Tortious liability of Good Samaritan ss 55-58
- (a) Is there a positive duty to rescue?
- (b) Is the rescuer able to recover in the event that they themselves are injured during a rescue?
- (c) Is the rescuer liable where he or she exacerbates the condition of the person being rescued?
- a person acting in good conscience who comes to the rescue of someone and is injured as a result, will have an action in negligence against the person whose fault created the situation of danger (Chapman v Hearse (1961) 106 CLR 112).
  - including for mental harm (Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 and now Pt 3 of the Civil Liability Act 2002 (NSW)).
The illegality of a plaintiff’s actions may operate as a complete defence at common law
- Miller v Miller (2011) 242 CLR 44
Immunity from civil liability, for death or personal injury, for food donors has been included in civil liability legislation in all Australian jurisdictions
At common law, admissions of regret or apologies will not generally constitute admissions of liability (Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317) and will have little evidentiary value on the breach of duty issue.
Negligence VI - Defences
Question 1
Please prepare answers to the following problem before your second seminar this week.
Noreen Cummins is a teacher working at Moree Public School in far western New South Wales. The School decided to take the students to the snowfields in Perisher Blue for an excursion. Noreen was asked to accompany the group as part of her duties. Some students thought it would be a good idea to take along large “For Sale” signs from the local real estate agent to be used as toboggans on the slopes. Six large signs were taken on the trip.
On their first day at Perisher Blue, they loaded their ‘For Sale’ signs and took the Ski Tube to the main office. A sign near the office read ‘Snowboarding is a dangerous activity’. Staff of the snowfields directed the School group to ski lifts and to the beginner slopes.
The School group decided to slide on the ‘For Sale’ signs on the “Beginner” slopes. After an hour on the slope, River is bored and throws a snowball at Noreen which hits her hard in the face. Noreen is stunned and hurt, and she runs over to River and shouts at them, that if she wasn’t a teacher she would ‘bury them deep in the snow!’
Frustrated and a little upset, Noreen decides to slide head first in an area 100 metres away from the group. In the course of her first slide, Noreen crashed into a snow-covered rock protruding 600mm from the ground and sustained considerable spinal injuries. During the course of one of her subsequent physiotherapy sessions, she falls in a way that significantly aggravates the damage to her back. There is no suggestion of negligence on the part of the rehabilitation unit.
Advise the parties as to their potential actions and liabilities in Tort.
local real estate agent to be used as toboggans on the slopes
River snowball - battery
River v Noreen = if I were not a teacher Tuberville v Savage (1669) 86 ER 684
Noreen crashed into a snow-covered rock protruding 600mm from the ground and sustained considerable spinal injuries.
- Obvious risk + rock part of the course
How did students get up there without employee see them with “toboggans”
Question 2
Paul had been invited to a birthday party for his best friend John. He decides to drive his new Lexus LC500 which he purchased this week and to put it through its paces on the way to John’s. John lives about 40 kilometres away and there are two tollways required to get there from Paul’s place. The party finishes at 1am and Paul has had 12 drinks over the space of 4 hours. He feels fine so decides to drive home. On the way home he crosses an intersection but doesn’t realise a pedestrian is crossing the road. May not have had to stop if sober He slams on his brakes, but another vehicle collides into Paul’s car from behind causing it severe damage would not have hit pedestrian if not smacked behidn. The pedestrian gets up and starts abusing Paul who yells out at the pedestrian claiming he walked out against the traffic lights. Contributory negligence The driver of the other vehicle starts abusing Paul, claiming he stopped too suddenly, causing the accident. Paul was driving 80km an hour in a 60k/m zone. Paul may have been going too fast, but how did previous driver crash into him, should have been far ahead unless driver behind was speeding
The driver of the other vehicle Justin suffers whiplash and is taken to hospital where he is treated by a trainee doctor. The doctor places Justin into a head brace but doesn’t order a scan of Justin’s head. The following day Justin is feeling very unwell and passes out at home. His wife takes him back to the hospital where he is diagnosed with hemorrhaging of the brain and is taken into the operating theatre to draw out some of the blood on the cranium. The emergency care specialist quizzes Justin on his movements over the past few days and he tells the doctor about the car accident he had the day before.
A week later Justin is released from hospital but is told more treatment is required and not to drive home. He is told by the doctor to get someone to pick him up. He decides to drive home himself but is struck by another vehicle who runs a red light voluntary assumption of risk He was brought back to hospital and was diagnosed with paraplegia. Rod is the driver of the other vehicle. Rod is at fault
Identify all potential causes of action. Identify all potential defendants and focus on all possible defences that could be raised on the facts. Refer to all relevant sections of the Civil Liability Act 2002 (NSW) and any relevant case law to assist in your arguments.

P v D - negligence - negligent driving occasioning phy injury

Duty of care
- Does D owe responsibility to plaintiff? - established category - salient features
Breach
- DID THE DEFENDANT KNOW OF THE RISK, SHOULD THEY HAVE?
  - s 5B
  - s 5O
  - s 5P
Causation
- S 5D
  - Infer factual causation
  - Scope of liability
  - novus actus interveniens
  - Consider s 5D(3) in failure to warn cases
Damage
Remoteness
- Recency
- Chain of causation
- Was the harm of a kind that was reasonably foreseeable
  - If yes, damage not too remote
  - Manner of injury
  - Eggshell skull rule
Rust v needham
- Bike ride no helmet
  - Did not affect contributory negligence because it made no difference
Froom v butcher
- No seatbelt for accident didn’t cause, court of appeal said there was contributory negligence because not putting on seat belt contributed to the harm.

Week 10: Negligence VII - Categories of Duty of Care

Please prepare answers to the following questions and be prepared to discuss them in class.
Questions

In March v Stramare, Deane J described a driver’s duty of care as being owed “to all users of the road, including the inattentive and those whose faculties were impaired by alcohol”. The duty extends to other drivers, passengers, pedestrians, and owners of property adjacent to the road. In Lynch v Lynch did the driver’s duty of care come within the established category, or was the case novel? What was the principal policy consideration on which the court relied in its conclusion?
- this duty was imposed on an unborn child’s mother where the child sued her own mother for negligent driving.
- In this case, a child was born with cerebral palsy, caused while in utero by a car accident attributable to her mother’s negligence.
  - The mother was held to owe a duty of care to her own unborn child and the child plaintiff was able to recover damages from her mother after her birth.
- The fact that this case did not establish a general duty of care by a mother to her foetus was affirmed in the Queensland case of Bowditch v McEwan [2003] 2 Qd R 615
  - which followed Lynch and confirmed that the principle that a child may recover damages from its mother for her negligent conduct extends only to the mother’s negligent driving rather than a more general duty encompassing all of a mother’s conduct during pregnancy.
- The case of Lynch v Lynch was novel in that it established that a mother owes a duty of care to her unborn child in the context of negligent driving.
- The principal policy consideration seems to be a balance between the rights and interests of the mother and the potential harm to the unborn child, especially in the context of negligent driving
Consider the decision of the High Court in Harriton v Stephens[2006] HCA 15. What was the primary basis for the rejection of the plaintiffs’ claims?
- Actions for ‘wrongful life’ are not available in Australian common law:
  - medical advisors owe no duty of care to a child born disabled because the doctor failed to advise the child’s mother during her pregnancy of circumstances which would have led the child’s mother to obtain a lawful termination of that pregnancy or to have avoided the pregnancy.
- In Harriton v Stephens, the child plaintiff was born with very severe disabilities as a result of her mother having contracted rubella in the early stages of pregnancy.
- The overriding reason for the refusal to impose a duty of care in a ‘wrongful life’ case was the impossibility of defining and assessing the damage claimed
- Held
  - In Harriton v Stephens, the High Court on appeal held
    - That part of the reason the Plaintiff could not succeed was a comparison, for damages purposes, between being born with disabilities and not being born at all was impossible
    - A duty of care cannot be stated where the Plaintiff can never prove the actual damage claimed
    - That a doctor does not owe a duty to a fetus to prevent their birth
    - Public policy reasons may be relevant to a determination of the duty issue
Consider the dissenting judgment by Kirby J. Do you think he effectively counters the majority’s arguments or not?
- Nature of Damages: Kirby J took a different perspective on the nature of the damages. While the majority emphasized the difficulty of comparing a life with severe disabilities to non-existence, Kirby J focused on the tangible, quantifiable aspects of the plaintiff’s life, such as the costs of medical care, treatment, and other necessities arising from the disabilities.
- Duty of Care: Kirby J argued that doctors owe a duty of care to both the mother and the fetus. In his view, if the mother had been properly advised, she might have made a different decision, which would have had a direct impact on the child’s life and well-being.
- Public Policy: While the majority saw public policy as a reason against recognizing the claim, Kirby J highlighted that public policy could also support such a claim. He emphasized the importance of holding medical professionals accountable for their advice and actions.
- Comparison with Other Jurisdictions: Kirby J also referred to decisions from other jurisdictions where ‘wrongful life’ claims had been recognized, suggesting that Australian law could evolve in a similar direction.
- Moral and Ethical Concerns: Kirby J’s dissent is also grounded in deeper philosophical, moral, and ethical considerations. He questioned whether it is appropriate for the law to assert that life, even with disabilities, is always better than non-existence.
Referring to Dhupar v Lee, what damages are excluded by s 71 of the Civil Liability Act, and what damages are not excluded?
- Damages Excluded by Section 71 of the Civil Liability Act 2002:
  - Economic loss associated with the cost of rearing or maintaining the child.
  - Loss of earnings incurred by a plaintiff while rearing or maintaining the child.
- Damages NOT Excluded by Section 71 of the Civil Liability Act 2002:
  - Additional costs of rearing or maintaining a child because of a disability suffered by the child.
  - Economic loss arising from an injury suffered by the mother as a result of the birth.
  - Economic loss for psychiatric injury (or any other physical injury to the parent) caused by the birth of the child.
Referring to John XXIII College v SMA, how did the Court decide the question of normal fortitude?
- Event hosted by ANU, knew that people would go from different pubs, girl got sexually assaulted, was college liable for assault and psychiatric issues
- Normal fortitude: the normal mental strength of an average person
In John XXIII College v SMA, there were two allegations of breach of duty; how were these decided and how did the issue of causation differ for each?
- Breach of Duty Allegation 1: The College directed its students to leave the ANU campus on the night of 6 August 2015 after they had commenced drinking.
  - Decision: The Court of Appeal found that it had not been established that the College’s direction for the students to leave the premises caused the resident (SMA) to suffer injury.
- Breach of Duty Allegation 2: The College was negligent in their handling of SMA’s complaint following the assault.
  - Decision: Both the primary judge and the Court of Appeal concurred that the College had a duty to investigate complaints competently and in accordance with its policies.
    - It was determined that the College failed to do so, which materially contributed to SMA developing a psychiatric injury.
- Causation: For the first allegation, the causation link between the College’s direction and SMA’s injury was not established. However, for the second allegation, there was a clear causal link between the College’s mishandling of the complaint and SMA’s psychiatric injuries.
Briefly explain the general scheme of Part 3 of the Civil Liability Act 2002 (NSW) dealing with mental harm? In Sheehan v SRA; Wicks v SRA, why was the High Court critical of the lower courts’ approach in considering s 30 without having considered s 32? How might s 32 have affected the outcome of the case?
- Part 3 of the Civil Liability Act 2002 (NSW) addresses the liability of individuals for negligently causing mental harm or nervous shock to another. The provisions aim to strike a balance between the rights of plaintiffs to recover damages for mental harm and the potential for widespread and indeterminate liability for defendants.
- Key Provisions:
  - s 28: negligence is required to claim damages
  - Section 30: Establishes that a person does not owe a duty of care to another to prevent mental harm unless the person ought to have foreseen that a person of “normal fortitude” might suffer a recognized psychiatric illness if reasonable care were not taken.
  - Section 31: Concerns the liability for mental harm arising from sudden shock. It states that a person is not liable for harm suffered as a result of the sudden witnessing of a person being killed, injured, or put in peril.
  - Section 32: Outlines that for a person to recover damages for pure mental harm, the harm must have been suffered from a sudden and unexpected traumatic event or the victim must have witnessed, at the scene, a person being killed, injured, or put in peril.
- Sheehan v SRA; Wicks v SRA:
  - Background:
    - The case revolved around two police officers, Mr. Wicks and Mr. Sheehan, who were among the first respondents to a rail crash. They claimed to have suffered psychiatric injuries as a result of witnessing the aftermath of the crash.
  - High Court’s Criticism:
    - The High Court criticized the lower courts for considering s 30 (foreseeability of harm) without first addressing s 32 (requirements for witnessing an event).
    - The lower courts’ approach was seen as problematic because determining foreseeability of harm (s 30) without considering the specific requirements of witnessing an event (s 32) could lead to a misinterpretation of the legislation and potentially unjust outcomes.
  - Impact of Section 32:
    - If section 32 had been appropriately considered by the lower courts, it might have led to a quicker acknowledgment that the officers had indeed witnessed victims “being put in peril” since the survivors of the derailment remained in peril until they were rescued.
    - This would have satisfied the requirements of s 32, and thus, the focus would shift to the foreseeability of the harm under s 30, potentially leading to a clearer path to the officers’ successful claims.
How does the Civil Liability Act 2002(NSW) operate with respect to “mental harm” as opposed to “pure mental harm” cases?
- mental harm means impairment of a person’s mental condition.
- pure mental harm means mental harm other than consequential mental harm.
- It differentiates between harm that is solely mental in nature (pure mental harm) and harm that is a consequence of a physical injury or other circumstances.
- The Act also emphasizes the need for foreseeability and the requirement for recognized psychiatric illnesses in claims for pure mental harm.
Compare the two cases of Annetts v Australian Stations Pty Ltd and Morgan v Tame. (a) Critically analyse the court’s approach in these two cases and explain the varied conclusions. (b) In cases of psychiatric harm, what does ‘a person of normal fortitude’ mean? To what extent if any does the Civil Liability Act 2002 (NSW) impact on the definition of the scope of ‘a person of normal fortitude’?
- Tame v State of New South Wales:
  - Facts: Mrs Tame was mistakenly linked to a high blood alcohol level due to a clerical error following a car accident. This caused her significant distress, given her longstanding abhorrence of drinking and driving.
  - Held: The High Court stressed that while reasonable foreseeability is required for establishing a duty of care, the concept of ‘normal fortitude’ isn’t a prerequisite in all cases. In Mrs Tame’s case, the injury was not foreseeable as a person of normal fortitude would not have suffered psychiatric injury from such a clerical error. The court thus dismissed her appeal.
- Annetts v Australian Stations Pty Ltd:
  - Facts: The Annetts’ son, James, went missing while working for the defendant. The parents were informed about their son’s disappearance and subsequently his death, causing them significant distress.
  - Held: The High Court found in favor of the Annetts. Given the relationship between the defendant and the plaintiffs (the defendant had assured them of their son’s safety), it was reasonably foreseeable that the parents would suffer psychiatric injury upon learning of their son’s disappearance and death.
- Differences in the Courts’ Approach:
  - In Tame, the court took a restrictive approach based on foreseeability and the concept of ‘normal fortitude’. It emphasized that not every emotional distress qualifies for compensation.
  - In Annetts, the court took a broader perspective, emphasizing the relationship between the parties and the reasonable expectations set by the defendant’s assurances about their son’s safety.
- (b) ‘A person of normal fortitude’ and its impact under the Civil Liability Act 2002 (NSW):
  - Meaning: The term ‘a person of normal fortitude’ generally refers to an average person’s ability to withstand psychological distress. It serves as a standard against which a plaintiff’s reactions to a given event are gauged. If an average person would not have foreseen psychiatric injury under similar circumstances, then a defendant might not owe a duty of care.
  - Impact of the Civil Liability Act 2002 (NSW): While the Act does emphasize foreseeability, it does not rigidly hold ‘normal fortitude’ as a prerequisite for all cases. However, it remains a significant factor in determining whether psychiatric injury was foreseeable.
  - In the Context of the Discussed Cases: In Tame, the court concluded that a person of normal fortitude would not have suffered a psychiatric injury from the clerical error. Whereas, in Annetts, given the assurances of the defendant about their son’s safety, it was reasonably foreseeable that the plaintiffs, as ordinary parents, would suffer psychiatric harm from the tragic news.
In Kozarov v State of Victoria (2022) 273 CLR 115 Kiefel CJ and Keane J said at [2]: “It is apparent that the issues with which this Court is concerned would not have arisen but for what seems to have been a misunderstanding of the effect of this Court’s decision in Koehler v Cerebos (Australia) Ltd.” In what way was Koehler misunderstood?
- In Kozarov v State of Victoria, Kiefel CJ and Keane J highlighted that the lower courts misinterpreted Koehler by overemphasizing the need for an employer to have specific knowledge of an employee’s vulnerability to psychiatric harm, rather than focusing on the broader foreseeability of such harm arising from the employer’s actions.
What arguments do Vines, San Roque, and Rumble make with regard to explaining why tort law treats physical and mental harm differently?
- Vines, San Roque, and Rumble, in their article ‘Is “nervous shock” still a feminist issue?
- The duty of care and psychiatric injury in Australia’, argue that the differential treatment of physical and mental harm in tort law has historical and gendered roots.
- They contend that the law’s hesitancy to recognize claims for psychiatric injury is influenced by outdated views on mental harm being associated with emotional responses, which are stereotypically linked to women.
- Furthermore, they suggest that the traditional view deems emotional or psychological responses as less genuine or less deserving of legal protection than physical injuries.
- By exploring the evolution of the law and its cultural context, they highlight the need for the law to move beyond these outdated notions and treat psychiatric injury with the same rigor and respect as physical harm.
While Kozarov is situated in a work context, with Vines et al arguing that gendered understandings of mental harm are more accentuated in the private sphere, does this decision offer an incremental step towards reducing the marginalisation of mental harm as an injury?
- Yes, the decision in Kozarov, even though it is situated in a work context, can be seen as an incremental step towards reducing the marginalization of mental harm as an injury.
- By addressing and clarifying the treatment of psychiatric injury within the legal framework, the decision challenges traditional distinctions and hierarchies between physical and mental harm.
- While Vines et al highlight the accentuated gendered understandings of mental harm in the private sphere, decisions like Kozarov in the public or work sphere contribute to a broader shift in recognizing the legitimacy and seriousness of mental harm across various contexts.
- This recognition can help pave the way for a more equitable treatment of mental injuries, reducing biases and outdated stereotypes associated with them.
Do you think attitudes towards gender and mental harm have shifted since the Vines et al article was published in 2010?
- Since the Vines et al article was published in 2010, the recognition and understanding of mental health and its interplay with gender have evolved considerably in the USA, Europe, and Australia.
- In the USA, movements likeMeToo have amplified conversations about mental trauma, especially among women, while in Europe, countries like the UK have initiated national mental health campaigns and strategies emphasizing inclusivity.
- Meanwhile, in Australia, campaigns such as “R U OK?” have furthered public discourse on mental health, reflecting a growing acknowledgment of its importance in both the private and public spheres.
  Negligence VII - Categories of Duty of Care
  Please prepare an outline answer to the following problem before your class this week.
  Question One
  The Diamonds have two teenage daughters. Last July they decided that given their financial resources they could not afford to have any more children and that their family is “complete”. After some deliberations, the Diamonds decided that Elizabeth Diamond would undergo sterilisation.
  In August, Elizabeth was referred to Dr Gentle (gynaecologist) who performed a tubal ligation on her. Before the operation the Diamonds were invited to a pre-operation consultation in which Dr Gentle explained the procedure. She indicated that even though it was invasive, it was relatively safe and a secure form of birth control and fairly common. At the pre-operation consultation, Elizabeth, who is 42, also indicated that quite apart from the financial considerations she was anxious not to have another child because she has heard that once a women passes the age of 35 there is an increased possibility of birth complications and a high probability that her child could have Down Syndrome. Elizabeth is also aware that the sperm of older men can similarly cause birth defects although such information is rarely discussed in the media or indeed clinical settings. Bruce Diamond is 51. Dr Gentle explained that while it is indeed true that a woman’s age is a crucial factor in childbirth management, Mrs Diamond did not need to worry because tubal ligation is an effective system of preventing childbirth. She looks puzzled at the mention of aging sperm.
  In November, Mrs Diamond discovered that she is pregnant in spite of the tubal ligation. Dr Gentle has since explained to the Diamonds that even though re canalisation (the re-joining of the tube) can occur in tubal ligation, this is rather very rare and so she did not mention this possibility to the Diamonds at the pre-operation consultation.
  The Diamonds do not feel abortion care or adoption are options.
  After the 12-week ultrasound, the Diamonds discovered that their new child will have Down Syndrome. They are offered a termination of pregnancy which they refuse.
  a) Advise the Diamonds.
Plaintiff’s (Diamonds’) Arguments:
- Loss of Opportunity to Terminate:
  - Similar to Veivers v Connolly and CES v Superclinics, the Diamonds may argue they lost the opportunity to make an informed decision about terminating the pregnancy due to Dr. Gentle’s failure to inform them of the rare but potential risk of re-canalization.
- Claim for Damages:
  - Section 71 supports the Diamonds in claiming damages for the costs associated with rearing a child with Down Syndrome.
Defendant’s (Dr. Gentle’s) Arguments:
- Standard of Care Met:
  - Dr. Gentle could invoke section 5O, stating that her conduct was in line with what was “widely accepted in Australia by peer professional opinion as competent professional practice” at the time of the operation.
- Harriton v Stephens:
  - May be cited to argue that Dr. Gentle owes no duty of care toward the child born with Down Syndrome, although this wouldn’t necessarily negate the duty of care owed to Elizabeth Diamond.
- 5P is for failure to warn in cases or injury or death, not in the rare occurence that the surgery does not take
  b) Assume the new child survives. Can the child sue Dr Gentle too? Why or why not?
No, wrongful life claim
- The child plaintiffs in these cases are invariably disabled and claim damages to enable them to have the significant and costly extra care required by a disabled person.
  - The loss suffered by the children is their ‘life with disability’ as opposed to non-existence
Harriton v Stephens:
- May be cited to argue that Dr. Gentle owes no duty of care toward the child born with Down Syndrome, although this wouldn’t necessarily negate the duty of care owed to Elizabeth Diamond.
  Question Two (revisit from Module 7)
  Jacinta works at Luna Park as a ride attendant and managers all the rides. He has worked at Luna Park for 25 years and trains all other staff on how to operate all the rides and other amusements. He is 62 and is overweight, a smoker and drinks heavily. He has not felt well over the last few days and has complained of chest pain to centre management. He wanted to go home this particular day because he wasn’t feeling well but management insisted, he stay and operate the big dipper as they were short staffed.
  Several people walked into the cars of the big dipper with Jacinta’s supervision. Passengers are secured by a padded bar that comes down and locks into place and is also something to hang onto during the ride. As customers were getting to their seats and before the padded bar had come down locking them into place, Jacinta collapsed onto his controls causing the cars to jolt forward abruptly. Several people who were still standing at this moment fell over and hit their heads. Two women were taken to hospital with head injuries. One woman will lose the site of one eye and the other permanently damaged a nerve in her spine making it difficult for her to carry out everyday tasks. Other passengers sustained minor injuries. A third woman went into shock and was diagnosed with a recognised psychiatric illness which will require long term psychiatric treatment.
  The two women who sustained head injuries can no longer work and require ongoing care to assist them with home duties. Their spouses have now become depressed because of what’s happened to their wives and have withdrawn from the world and can no longer perform their work duties and have been laid off. They both had high paying jobs. They too require psychiatric treatment.
  It appears Jacinta had a heart attack and required three stents to be inserted into three of his main arteries. He remained in hospital for 10 days before he was sent home. Jacinta has decided to resign from Luna Park because of what happened. He feels very guilty for causing injuries to several customers who were on that ride. He has lost all confidence and can’t manage to find another job making it more difficult for him to pay his mortgage especially as interest rates are very high now. He has defaulted on his mortgage the bank has repossessed his unit. The bank has sold his unit, but he still owes $100k to the bank as property prices have fallen dramatically.
  Identify all remoteness of damage issues in the above scenario with the use of any relevant case law. Make a case for any plaintiff you identify in arguing that the harm they suffered was not too remote from the defendant’s negligence.
Jacinta
- Remoteness of Damage Issues:
  - Jacinta’s health: His pre-existing health condition, history of smoking, drinking, and symptoms he had displayed (chest pain) are significant.
    - Management knew he wasn’t feeling well but insisted he operate the big dipper.
    - There’s an argument that if someone with known health issues is placed in a stressful or physically demanding situation, a health crisis (like a heart attack) is foreseeable.
  - Jacinta’s subsequent financial and psychological hardships:
    - 33 Liability for economic loss for consequential mental harm
      - Not recognized psychiatric injury
    - Whether Luna Park could foresee this from their initial negligence (making him work despite health concerns) is debatable.
Two women head injuries
- The Kind of Damage: In Hughes v Lord Advocate, it was established that the exact way the damage occurs need not be foreseeable, just the general kind. Thus, even if Luna Park did not predict the exact nature of the injuries the two women suffered, they might still be liable because injuries in general are foreseeable from malfunctioning equipment.
Other passengers
- Remoteness of Damage Issues
  - Those who were still standing when Jacinta collapsed and had injuries from the abrupt jolt of the cars are direct victims of the incident.
    - The harm they suffered can arguably be said to be a direct and foreseeable result of Luna Park’s negligence in making Jacinta work despite being unwell.
- Immediate injured victims: It’s reasonably foreseeable that making an unwell, experienced operator manage a ride could lead to operational mishaps causing physical harm to the riders.
  - This is a direct consequence of the park’s negligence.
- No psychiatric issues mentioned
Shocked woman
- Example formation:
  - DoC
    - 30(2)(a) - plaintiff witnessed, at the scene, the victim being killed, injured or put in peril…
    - s 31 Pure mental harm—liability only for recognised psychiatric illness
  - Go through breach, casuation
- Woman with psychiatric illness: Given the sudden and traumatic nature of the event, it’s arguable that a foreseeable outcome of such an incident is a passenger suffering psychological harm.
- See spouses
  - Include s 29
    - In any action for personal injury, the plaintiff is not prevented from recovering damages merely because the personal injury arose wholly or in part from mental or nervous shock.
spouses
- Remoteness of Damage Issues:
  - Consequential harm to spouses: The mental suffering and subsequent job losses of the spouses due to the accident of their wives might be considered too remote by some.
  - S 30 - foreseeability of the harm defines the duty of care
    - (2)(b) the plaintiff is a close member of the family of the victim.
    - The “normal fortitude” clause could be used to establish whether or not the mental harm to the spouses was a foreseeable consequence based on societal norms.
  - S 31 - require psychiatric assistance as they have a recognised psychiatric illness

Week 11: Pure Economic Loss & Negligent Misstatement

Questions

Explain the concepts of consequential economic loss and pure economic loss. With regard to pure economic loss, what distinguishes this category of the duty of care (i.e. the duty not to cause pure economic loss) from other duty categories?
- Consequential Economic Loss: This refers to financial losses that are a direct consequence of some physical damage to person or property. For example, if a person’s car is damaged due to someone else’s negligence, the cost of hiring a replacement car would be a consequential economic loss.
- Pure Economic Loss: This is an economic loss that arises without any accompanying physical injury to a person or property. For example, if someone provides you with bad financial advice leading to an investment loss, the loss incurred is a pure economic loss.
- Distinction in Duty of Care
  - The concern to ensure that tort law does not stifle legitimate commercial activity
  - Perre v Apand Pty Ltd (1999) 198 CLR 18
    - In that case, however, the court determined that the imposition of a duty would not offend this policy consideration because the defendant’s conduct was unlawful and against even its own commercial interests and therefore the imposition of a duty would not stifle competitive commercial activity
Look back to Module 3 and Problem Question 2 involving Michael and Barney (3.6). This module is concerned with Intentional Torts and the problem specifically addresses trespass to land. For heuristic purposes, how would you characterise the different damage and losses caused by the emergency fuel dump as described in the second paragraph?
- Direct Physical Damage: The immediate harm to the crops and seedlings that were ready for the market.
- Environmental Impact: The contamination of the soil, which could require the removal and replacement of topsoil and would affect the farm’s organic status.
- Business Interruption: The loss of income due to the inability to sell crops or maintain regular business operations, especially the supply to Sydney’s top restaurants and Carriageworks Market.
- Reaccreditation Process: Loss of the farm’s organic status and the time, effort, and financial resources required for reaccreditation, which is expected to take at least 2 years.
- Long-Term Reputational Damage: Potential loss of longstanding relationships with high-end clients and the public, affecting future business prospects.
- whether the airline could reasonably foresee the risk of economic loss to farms beneath a flight path in the event of an emergency fuel dump. If so, they might have a duty of care to prevent such a loss, making the case more similar to Perre v Apand.
In an action for negligent misstatement, what are the ‘salient features’ of the duty of care?
- In an action for negligent misstatement, the salient features of the duty of care often include the existence of a special relationship between the parties that creates a reliance on the statement, and the foreseeability that the plaintiff would rely on the statement to their detriment.
- The quality and purpose of the information provided also play a role in establishing this duty.
- Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
  - This case established that a duty of care could exist in situations where one party relies on the professional expertise or advice of another, provided that the reliance is reasonable and foreseeable.
Briefly explain the decisions in Hedley Byrne, Mutual Life, Shaddock, San Sebastian, Tepko and Roo Roofing.
- Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.
  - This case established that a duty of care could exist in situations where one party relies on the professional expertise or advice of another, provided that the reliance is reasonable and foreseeable.
- L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225
  - where property developers had purchased property within the Parramatta area and their solicitor made first a telephone inquiry, and then a written inquiry asking the council whether the property was affected by any road-widening proposals.
  - Background
    - It was the usual practice of the council to make such disclosures on the certificates it issued in response to requests by intending purchasers.
    - The property was, in fact, the subject of road-widening plans by the council and the plaintiffs claimed they suffered financial loss as a result of the council’s negligent failure to disclose the information.
  - So, in Australia, it is not a prerequisite to the duty of care that the defendant be ‘in the business’ of giving information or advice.
- MLC Assurance Co Ltd v Evatt (1969) 122 CLR 556
  - Background
    - In that case, the plaintiff was a policy holder with the defendant insurance company.
    - He sought investment information and advice from the insurance company regarding investment in a company, HG Palmer Ltd.
    - HG Palmer Ltd soon went into liquidation and the plaintiff lost his investment.
    - The plaintiff claimed that MLC owed him a duty of care, which had been breached.
      - The defendant argued that the plaintiff’s pleading was bad because it did not disclose all the elements of a duty as set forth in the Hedley Byrne case
  - Additional Issue
    - Was it reasonable for the plaintiff to rely on the advice from MLC when it was not an investment adviser and did not have any ‘special skill’ in this field.
  - Held
    - The High Court held that MLC did owe the plaintiff a duty of care.
      - To establish the duty the plaintiff must establish that, in the circumstances, it was reasonable for the plaintiff to have relied on the information provided by the defendant.
    - The High Court held that having a ‘special skill’ was not a prerequisite to the imposition of a duty of care.
      - The speaker must realise or the circumstances be such that he ought to have realised that the recipient intends to act on the information or advice
- Tepko Pty Ltd v Water Board (2001) 206 CLR
  - Background
    - plaintiff companies, which were owned and controlled by Mr Neal (in a case in which the facts were very convoluted), were the owners of semi-rural land on the fringe of Sydney.
    - They were seeking to have the land rezoned and then subdivided for sale as suburban housing lots.
    - One of the conditions of the subdivision was that the plaintiffs would finance the connection of the land to water and sewerage.
    - The plaintiffs sought an estimate of the cost of such connection from the Water Board.
  - bank decided that the development was untenable and required repayment of its loan.
  - The land was sold for a much smaller sum than it would have been worth had it been subdivided.
    - It was later discovered that the Water Board’s estimate had been greatly overstated.
  - Issue
    - The plaintiffs claimed that the Water Board owed them a duty to take care in the preparation of the estimate so as not to cause them financial loss.
  - Held
    - The High Court, by a majority of 4 to 3, held that the defendant did not owe a duty of care to the plaintiff because it was unreasonable for the plaintiffs to have relied on the estimate, in all the circumstances.
  - Ratio
    - The court noted that the figure given was at best, a ‘ballpark’ figure, that it had been provided reluctantly by the Water Board only after much lobbying by the plaintiffs; that the plaintiffs had access to other expert advice;
    - and that the Water Board was unaware that the figure was required for the plaintiff’s bank.
- Roo Roofing Pty Ltd v Commonwealth [2019] VSC 33,
  - a class action brought by business owners and installers of home insulation
  - The plaintiffs claimed economic losses arising out of the Home Insulation Program (HIP) that was part of the fiscal stimulus program implemented by the Australian Government in 2009, in response to the Global Financial Crisis.
    - When the government ended the program early and without notice in 2010, the plaintiffs who had ‘geared up’ their businesses to take advantage of the (heavily government subsidised) demand for home insulation, claimed that the Commonwealth was responsible for their subsequent economic losses.
  - the Commonwealth did not induce the plaintiffs to take part in the HIP – it encouraged participation but the plaintiffs made their own business decisions
On what issue was Mutual Life reversed by majority on appeal to the Privy Council. Now that appeals from the High Court to the Privy Council have been abolished, what is the current Australian position on this issue?
- The High Court held that MLC did owe the plaintiff a duty of care.
  - To establish the duty the plaintiff must establish that, in the circumstances, it was reasonable for the plaintiff to have relied on the information provided by the defendant.
- The High Court held that having a ‘special skill’ was not a prerequisite to the imposition of a duty of care.
  - The speaker must realise or the circumstances be such that he ought to have realised that the recipient intends to act on the information or advice
In Tepko, the question of reasonableness was decided by a bare 4:3 majority. Do you agree with the majority, or with the dissent?
- Dissent, if the group was lobbying that hard, the water board ought to have suspected, or asked what affect the report would have. Low cost to resolve/low burden, low probability of harm, medium harm, medium social utility
‘’In an action for acts causing pure economic loss what are the ‘salient features’ of the duty of care? Refer to Perre v Apand Pty Ltd(1999) 198 CLR 180. What did Perre decide?
- ‘Salient features’ for a duty of care in cases of pure economic loss include the foreseeability of harm, vulnerability of the plaintiff, and the nature of the relationship between parties.
- Perre v Apand established that a duty of care could exist for pure economic loss, and set out the criteria for determining such a duty.
Caltex Oil v “Willemstad” introduced the terms “salient features” and “ascertainable class” into Australian jurisprudence. With reference to these terms, what did the case decide?
- The case introduced the concept of “salient features” to help determine when a duty of care arises, particularly in cases involving economic loss.
- It also established the idea of an “ascertainable class,” meaning that a defendant owes a duty of care only to those who are foreseeably at risk and can be identified as belonging to a specific group that could suffer loss.
What is meant by ‘vulnerability of the plaintiff’? Refer to Woolcock Street Investments Pty Ltd v CDG Pty Ltd, in particular the judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ at [23]-[24] and [31]; McHugh J at [80]; Kirby J at [168]-[169].
- In Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, McHugh J held that vulnerability means ‘that by reason of ignorance or social, political or economic constraints, the plaintiff was not able to protect him or herself from the risk of injury’ ([80]).
Bryan and Woolcock were actions by subsequent purchasers of premises. What was the “pure economic loss” alleged? What did the cases decide, and what distinguished them?
- Bryan v Maloney: The loss was the drop in house value due to bad foundations. Court said the builder owed a duty of care to future buyers like Bryan.
- Woolcock Street Investments: The loss was a drop in commercial property value due to bad foundations. Court said no duty of care was owed to Woolcock because they weren’t vulnerable; they could have protected themselves.
- What Distinguished Them:
  - The key difference in outcomes was “vulnerability.”
    - In Bryan v Maloney, the court found that the plaintiff was vulnerable and couldn’t have protected themselves, thus a duty of care was owed by the builder.
    - In Woolcock Street, the court found that the plaintiff was not vulnerable because they had other means to protect themselves, such as through due diligence or contractual provisions, so no duty of care was owed.
Hawkins v Clayton, Hill v Van Erp and were actions against solicitors in relation to deceased estates. What did these cases decide?
- Hawkins v Clayton: The court decided that the solicitor owed a duty of care to the intended beneficiaries of a will for failing to locate and inform them, leading to avoidable delays and financial loss.
- Hill v Van Erp: The court found that the solicitor owed a duty of care to the beneficiary for negligently preparing a will, which led to the will being declared invalid.
On what basis was Perre distinguished by the majority in Marsh v Baxter? What were the similarities between the two cases and what would you have decided?
- Basis for Distinction: In Marsh v Baxter, the majority distinguished the case from Perre v Apand by focusing on the lack of a “special or closer relationship” between the parties.
  - While in Perre, the negligence affected an “ascertainable class” of plaintiffs, in Marsh v Baxter, the relationship was considered more remote.
- Similarities: Both cases dealt with the issue of pure economic loss and the circumstances under which a duty of care arises.
  - Both also involved agricultural contexts: Perre dealt with the spread of a potato disease, while Marsh v Baxter dealt with the spread of genetically modified canola onto an organic farm.
Johnston Tiles v Esso was an action by three classes of plaintiff. With reference to salient features, what decided in relation to each class?
- None of the classes were vulnerable enough, could have taken precautions.
- Businesses using gas for operations:
  - Lost sales due to the inability to operate fully.
  - Increased costs for substituting gas with electricity.
  - No duty of care
- Domestic users of gas:
  - Incurred costs for purchasing electrical appliances as a replacement for gas appliances.
  - unwilling to extend a duty of care for pure economic losses suffered due to disruptions in business relations with the factory.
- Workers of businesses relying on gas:
  - Loss of wages because the business couldn’t operate and they were temporarily stood down.
  - generally held that they could not claim for pure economic loss as they had no direct relationship with Esso and their losses were more of a consequential nature from the harm caused to their employer.
  - Not ascertainable enough
Refer back to Module 3. In Sullivan v Moody (2001) the court rejected proximity as a determinant of a duty of care: “‘no one has ever succeeded in capturing in any precise formula’ a comprehensive test for determining whether there exists, between two parties, a relationship sufficiently proximate to give rise to a duty of care of the kind necessary for actionable negligence. The formula is not ‘proximity’.” A hallmark of the proximity cases (and also “incrementalism” focusing on analogous cases) in novel cases was the detailed considered of precedent in weighing the competing interests of plaintiff and defendant. For example, in Caltex Oil v “Willemstad” the Court reviewed numerous English cases in which pure economic loss had been denied, the reasons for departing from these given by the House of Lords in Hedley Byrne, and Canadian authorities which had allowed recovery. In Hawkins v Clayton, the Court reviewed cases dealing with the nature of the property constituted by a will, the nature of a solicitor’s safe custody facility and cases dealing with the duty of trustees to inform a beneficiary of his/her rights under the trust on attaining the age of 18. Instead of proximity, a duty of care is now determined in novel cases by reference to salient features. Do the salient features effectively consider “the relationship between the parties”? Could any of the salient features be appropriately dealt with in considering the calculus of negligence factors in s 5B(2) and, if so, which? Could any be appropriately dealt with in considering contributory negligence?
- Yes, “salient features” effectively consider the relationship between the parties by focusing on specific factors that make it reasonable to impose a duty of care.
- Foreseeability of harm and the likely seriousness of the harm could be dealt with under the calculus of negligence factors in s 5B(2).
- Plaintiff’s awareness of risk could be considered under the framework of contributory negligence. Similar to the shirt of calculus
- reasonably foreseeable plaintiff (broad)
- Salient features:
  - Vulnerability of P
  - Knowledge & control of D over risk
  - EX: novel duty is if dr doesn’t save someone looking for help and dies right in front of him
- Policy considerations

Week 11: Pure Economic Loss & Negligent Misstatement

Please prepare answers to the following problems before your class this week, and be prepared to discuss them in class.
Problem Questions
A. Bert and Ernie own and operate a seafood restaurant called Hasta Manyana in Manyana Bay. The restaurant, which is located on the southern end of Manyana Bay, is only accessible by a pontoon. The pontoon which is called the Pride of Manyana is owned and operated by the State Transport Authority of New South Wales. Last September, Jim Henson negligently drove his ‘four wheel’ drive vehicle on to the Pride of Manyana against the express instructions of the STA personnel operating the pontoon. The central pulley system that is used to pull and manoeuvre the pontoon into place was damaged considerably. The STA ceased operating the Pride of Manyana until March this year after it had carried out repairs to the damage.
From late September through to the completion of the repair work in late March the Hasta Manyana was forced to shut as it became inaccessible to its patrons. Bert and Ernie estimate that the damage to the Pride of Manyana has cost them in excess of $800,000 and may have to file for bankruptcy.
Bert and Ernie have been advised that since no damage was done to the Hasta Manyana and they did not own the Pride of Manyana they have no cause of action to recover damages for their losses.
Do you agree with this advice? Why or why not?

Bert and Ernie’s livelihood depends on the STA’s pontoon, which was negligently damaged by Jim Henson.
The restaurant had to close for several months due to the inaccessibility caused by the pontoon’s repairs.
Reasonable Foreseeability of Loss
- Bert and Ernie’s restaurant was the only establishment dependent on the Pride of Manyana for customer access.
- It could be reasonably foreseeable that damaging the pontoon would harm their business.
Avoid Indeterminate Liability
- The liability would not be indeterminate, as it’s specific to Bert and Ernie, who are directly affected by the pontoon’s operational status.
- STA and Jim Henson could potentially measure the economic impact on the Hasta Manyana based on past revenue and projections.
Allow Autonomy to Pursue Legitimate Business Interests
- Recognizing a duty of care here would not significantly restrict the STA or Jim Henson’s ability to pursue legitimate business or personal interests.
  - However, it would encourage responsible behavior, particularly for the STA as a provider of public infrastructure and for Jim Henson in obeying instructions from authorities.
Vulnerability of Plaintiff
- Bert and Ernie are vulnerable as their livelihood is entirely dependent on the operation of the Pride of Manyana, which they don’t own or control.
- Their vulnerability is heightened by the fact that there are no alternate routes to their restaurant.
Knowledge & Control of Defendant
- Jim Henson was explicitly warned against his actions by STA personnel, showing a level of awareness and control over the situation.
- The STA owns and operates the Pride of Manyana, also indicating a level of control and knowledge of its importance for local businesses.
BREACH
- Driver was driving negligently, but for pontoon being destroyed, no economic loss
CAUSATION
- Scope of liability
  - Appropriate
- Novus actus
  - March v stramare
REMOTENESS
- Was the harm of a kind that was reasonably foreseeable
  - If yes, damage not too remote
  - Manner of injury
  - Eggshell skull rule
DEFENCES
- contributory negligence - maybe
- Not inherent enough

B. Dr. Bob is an investment advisor and the host of a radio program on investment strategies. His program, which runs on a local radio station on Sunday mornings, is called ‘Penny Wise and Dollar Clever.’ In November last year, Dr Bob declared on his program that ‘if ever anyone wanted to buy Telstra shares this is the time’. He went on to say that:
‘The Telco is certainly one of the best and most efficient in the world today. It is a great investment for the mum and dad investors of Australia. The shares are definitely underpriced and those who get in now will make a good profit.’
Kermit who is a regular listener to the program and subscribes to Penny Wise and Dollar Clever investment magazine rang Dr. Bob and indicated that he was keen to invest in Telstra but that he was worried that changes in the senior management and problems in the Telstra board might cause the share price to drop dramatically.
Dr. Bob responded by saying: ‘Telstra is as solid as an old telephone booth. Not even the resignation of the CEO will make a difference to the share price.’ Kermit subsequently purchased 125,000.
Kermit wishes to know if he can bring an action against Dr. Bob. Advise Kermit.

Reasonable Foreseeability of Loss
- Dr. Bob is an investment advisor who specifically endorsed Telstra shares as a stable investment.
- It could be reasonably foreseeable that listeners like Kermit would rely on Dr. Bob’s advice, potentially leading to economic loss if the advice was incorrect.
Avoid Indeterminate Liability
- The liability might be more difficult to determine here as Dr. Bob’s radio program and investment magazine are available to a wide audience.
- However, the one-on-one conversation between Kermit and Dr. Bob adds a more direct form of guidance, perhaps limiting the scope of liability to those who sought personalized advice.
Allow Autonomy to Pursue Legitimate Business Interests
- Holding Dr. Bob liable might interfere with his professional autonomy and discourage investment advisors from offering opinions.
- However, a duty of care could incentivize responsible and well-researched advice.
Vulnerability of Plaintiff
- Kermit is vulnerable in that he relies on expert advice to make investment decisions and has no way of controlling Telstra’s share prices or internal management decisions.
- He did his own research on Telstra and asked questions over concerned
- great investment for the mum and dad investors of Australia
  - Did not tell dr how much he would invest, dr might have assumed a reasonable amount
- Nothing indicates kermit is vulnerable, and brought his own information
Knowledge & Control of Defendant
- Dr. Bob offered specific advice to Kermit in a private conversation, going so far as to downplay the impact of management changes on share prices.
- This could indicate a level of control and knowledge on Dr. Bob’s part, making him more liable.

Week 12:

Vicarious Liability, Non-Delegable Duties, Concurrent and Proportionate Liability
Please prepare answers to the following questions before your class this week, and be prepared to discuss them in class.
Questions

What are the factors which create the legal relationship of employer and employee?
- The relevant factors that have been identified by the High Court include:
  - scope for control by the employer;
  - the description of the position in any written or verbal contract;
  - the right to suspend or dismiss;
  - the right to dictate the place of work, hours of work and the like;
  - whether tools are supplied and maintained by the ‘employer’ (this would indicate an employee as opposed to an independent contractor who may bring and maintain their own tools);
  - the right to the exclusive services of the person engaged;
    - whether work may be freely sub-contracted to someone else (if this may be done, it indicates an independent contractor);
  - mode of remuneration: whether a traditional wage is paid (indicates employee) as opposed to a commission, retainer, or being paid on invoice (independent contractor); and
  - what forms of tax/superannuation are paid and by whom are they paid.
How has the nature of “employment” evolved over time?
- Changes in degrees of control over employees + WHF
What is the difference between a “contract of service” and a “contract for services”? Note: the significance of this question is that where a statute uses a phrase that has an established legal meaning, the parliament is presumed to have intended the legal meaning. The term “contract of service” is used in the Workers Compensation Act 1987.
- Control for services (CONTRACTOR) vs control of service (EMPLOYEE)
  - The essence of a contract of service is the supply of the work and skill of a man.
  - The High Court stated that the classic test for determining whether there is a contract of service as opposed to a contract for services is the degree of control which one person has over the other.
What is the meaning of the expression “in the course of employment”? How how this concept evolved from Bugge v Brown and Deatons v Flew through to Prince Alfred College and Schokman?
- If person is there due to employer engaged person to be or engaged to participate in
- Hesley hall
  - Lord Steyn described the sexual abuse in that case as ‘inextricably interwoven’ with the employee’s performance of his duties (230) and accordingly within the course of employment
- Lesmore
  - by a majority of 5 to 1 the High Court allowed an appeal by a school authority deciding that a school authority may be vicariously liable for sexual assault by a teacher on the basis of it being within the course of employment.
What is a “non-delegable” duty of care and what are its consequences?
- A non-delegable duty def is one where a defendant is not able to delegate a duty to take care of someone else.
  - A hospital has a non-delegable duty of care to its public patients and that duty cannot be delegated through the careful selection of an independent contractor.
  - Hospital/patient – Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Albrighton v RPAH [1980] 2 NSWLR 542
  - School authority/student – Commonwealth v Introvigne (1982) 150 CLR 258;
  - Land occupier/danger to neighbour – Burnie v General Jones Pty Ltd (1994)179 CLR 520
How do the courts determine when a duty is non-delegable?
- In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16,
  - the High Court held that the totality of the relationship between the parties must be considered and decided that there is no single ‘checklist’ of indicia to distinguish the relationship between employer-employee or employer-independent contractor.
Explain what is meant by “joint and several liability”.
- joint and several liability in claims for pure economic loss or damage to property caused by failure to take reasonable care.
- where multiple parties are responsible for a particular debt or damages, and each party can be held individually liable for the entire amount, allowing the claimant to recover the full sum from any one of the liable parties.
Explain the concept of “contribution between tortfeasors”? How are relative contributions determined?
- where multiple parties who are jointly liable for a tortious act can seek contributions from each other to equitably share the damages awarded, with relative contributions typically determined by the court based on factors like the degree of fault, the severity of the negligence, and the extent of involvement in the harm caused.
  - Contribution between tortfeasors
    - Hunt v Hunt
    - Chapman v Hearse
    - The common law rule in Merryweather v Nixan (1799) 8 Term Rep 186; 101 ER 1337
      - was that there was no right to contribution between tortfeasors.
      - So, a tortfeasor against whom a judgment was obtained or with whom a settlement was reached and who was liable to pay the whole of the plaintiff’s damages had no right to require a contribution from any other tortfeasor.
      - The effect of the rule in Merryweather v Nixan has been abrogated by statute in all Australian jurisdictions
    - LAW REFORM (MISCELLANEOUS PROVISIONS) ACT 1946 s 5
What is the difference between “joint and several liability” and “proportionate liability”?
- In New South Wales, “joint and several liability” means that each defendant can be held fully responsible for the entire amount of damages, whereas “proportionate liability” allocates responsibility for damages among multiple defendants based on their respective degrees of fault.
  - Joint and several: each defendant is potentially liable for the full amount, allowing the plaintiff to recover the entire sum from any one of the defendants who can then seek contributions from the others.

Week 12:

Problem question

For many years, SES has operated as a courier company in Sydney. The company has many employees on its payroll working as deliverymen and women. Two years ago, due to a rapid expansion in business, SES engaged the services of four subcontractors to do part of the deliveries for the company. Bradley Wiggins is one of these subcontractors.
There is no written contract between SES and individual subcontractors. Subcontractors are also free to work for other companies. However, because of the volume of work from SES, its subcontractors are fully occupied and do not need to work for any other companies. It is the policy of SES that each sub-contractor should own a two-ton van for the delivery work. SES also provides finance to subcontractors to purchase the vans. However, subcontractors are under no obligation to take or accept such finance.
It is also the policy of SES that each owner-driver has his or her vehicle painted in SES colours and bear the SES logo. SES pays for the costs of such painting and signs on the vehicles. To ensure a smooth operation, SES encourages all its subcontractors to use vehicle maintenance and refuelling services provided by SES. The cost of the fuel and maintenance services are deducted from the payments to the subcontractors.
SES requires all subcontractors to report for work at the SES headquarters at 7.15 am. each morning. The subcontractors are also obliged to make themselves available for work till 7.15 p.m. While on their delivery rounds, all subcontractors remain in touch with SES head office by means mobile phones supplied by SES. All SES subcontractors are paid on the basis of kilometres travelled for deliveries. None of the subcontractors is on the superannuation scheme organised by SES.
Mr Wiggins’ first job one day recently was to deliver a package to Lindfield High School. After entering the school by the front gate, Mr. Wiggins fell into a ditch which was partially obscured by long grass. He fractured his hip badly and now requires hip replacement surgery. He has been advised that because of severe muscular and tissue damage he will probably have ongoing problems.
The ditch had been dug by employees of North Shore Plumbing Pty Ltd, who were working on upgrading connections for the High School. Despite persistent requests from the Headmistress that the plumbers should put a protective barrier around the ditch, they had failed to do so. The headmistress had also advised SES to use the back entrance to the school because of the ditch near the front gate, but SES failed to pass on this information on to Mr Wiggins.
When the headmistress tried to contact North Shore Plumbing following the accident, she learned that the business was likely to go in to liquidation, and was also uninsured.
(a) Is Mr Wiggins an employee so that he would have a claim for workers compensation in respect of his injury?

Not an employee, no super, free to work for other companies, own their own vans, no written contract, etc.
The cost of the fuel and maintenance services are deducted from the payments to the subcontractors.

(b) Identify any common law negligence claims Mr Wiggins could bring for personal injury damages?
SES

Novel duty (iff not employee) (omission to tell him)
Wiggins
Joint and seperate liability claim against SES and School and plumber
Headmistress
School → occupier lawful entrant
Non-delegable duty
- Reasonable steps required to confirm safety
- Not neighbors - so only normal duty of care
  Plumbers
Haley v London Electricity Board

Law School Notes Repository

Explorer

Torts Tutorial Notes

Week 2 answers:

Minister’s driver

Week 3 Answers: Intentional Torts

Week 5B: Negligence

Week 6: Negligence III - Causation

Week 8: Trevorrow

Week 10: Negligence VII - Categories of Duty of Care

Week 11: Pure Economic Loss & Negligent Misstatement

Week 11: Pure Economic Loss & Negligent Misstatement

Week 12:

Week 12:

Problem question

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