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LAW OF TORTS. Negligence – Duty of Care Clary Castrission [email protected] How will we cover negligence?. Duty of Care at common law Civil Liability Act and Duty of Care More CLA and Breach of Duty Damage and Particular Duty Areas More Particular Duty Areas. Negligence- Duty of Care.

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Law of torts

LAW OF TORTS

Negligence – Duty of Care

Clary Castrission

[email protected]


How will we cover negligence

How will we cover negligence?

  • Duty of Care at common law

  • Civil Liability Act and Duty of Care

  • More CLA and Breach of Duty

  • Damage and Particular Duty Areas

  • More Particular Duty Areas


Negligence duty of care

Negligence- Duty of Care

  • Snails

  • Overview of negligence

  • Arriving at a Duty of Care

  • Categories

  • The harder ones:

    • Proximity and Reasonable Foreseeability v Incrementalism

  • Some interesting applications

    • Unborn children and the wrongful life cases

  • Legislative reform


Negligence and fault in torts

NEGLIGENCE AND FAULT IN TORTS

FAULT

NEGLIGENCE

INTENTION

TRESPASS

NEGLIGENCE

the action

CARELESS


Negligent trespass

NEGLIGENT TRESPASS

  • Intentional or negligentact of D which directly causes an injury to the P or his /her propertywithout lawful justification

  • The Elements of Trespass:

    • fault: intentional or negligent act

    • injury must be direct

    • injury may be to the P or to his/her property

    • No lawful justification


Negligent trespass1

NEGLIGENT TRESPASS

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

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

  • Where the facts of a case permit, it is possible to frame an action in both trespass and negligence on the same facts

    • Williams v. Molotin (1957) 97 CLR. 465.


What is negligence

What is Negligence?

  • It is the neglect of a legal duty

  • Negligence v carelessness

  • “The law takes no cognisance of negligence in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage.” (Lord MacMillan in D v S)

  • Tame v NSW (2002) 211 CLR 317


Negligence the elements

Negligence: The Elements

Duty of care

Negligence

Breach

Damage


Negligence the early cases

Negligence: The Early Cases

  • Heaven v. Pender (1883)

  • The dicta of Brett MR:

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


Donoghue v stevenson 1932 ac 562

Donoghue v. Stevenson [1932] AC 562

  • Facts

  • Understanding the relationships


Donoghue v stevenson cont

Donoghue v Stevenson (cont)

  • Dicta of Lord Atkin

    • The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer’s question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissions which are called into question (at 599)


The manufacturer s duty

The Manufacturer’s Duty

  • Grant v Australian Knitting Mills (1936)

    The application of the rule in D v S

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

  • Baar v Snowy Mountains Hydro-Electric Authority (1970) 92 WN (NSW) 472


What did lord atkin mean

What did Lord Atkin mean?

  • “What Lord Atkin did was use his general conception to open up a category of cases giving rise to a special duty… [The process] may be described either as the widening of an old category or as the creation of a new and similar one. The general conception can be used to produce other categories in the same way.”

    • Lord Devlin in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465(at 524)


Established categories

Established Categories

  • Type of Harm

  • Type of Defendant

  • Type of Plaintiff

  • Manufacturer to consumer

  • Makers/repairers to users of chattels

  • Teachers to pupils

  • Occupiers of land to visitors

  • Skilled professionals to their clients

  • Highway workers to highway users


Checking in

Checking In

  • Snails

  • Overview of negligence

  • Arriving at a Duty of Care

  • Categories

    _________

  • The harder ones:

    • Proximity and Reasonable Foreseeability v Incrementalism

  • Some interesting applications

    • Unborn children and the wrongful life cases

    • Legislative reform


Duty of care in general

Duty of Care in General

  • Where there is physical loss or injury (or an established category), duty is relatively easy to identify.

    • Rylands v Fletcher (1868) LR 3 HL 330

  • Where nature of harm is more difficult to identify or quantify, it gets tougher.


Law of torts

WHAT HAPPENS WHEN THE DUTY DOES NOT FIT AN ALREADY EXISTING CATEGORY?

  • What is needed is “a conceptual framework that will promote predictability and continuity and at the same time facilitate change when it is needed.” (McHugh J in Perre v Apand (1999))

  • Principle v Category

  • Principle: Proximity and Reasonable Foreseeability

  • Category: Incrementalism

  • There is still “much disorder and confusion”- Kirby J Perre v Apand


What is reasonable foreseeability

What is Reasonable Foreseeability?

  • Question of identity of the plaintiff:

  • Question of law

Is the P reasonably foreseeable (as person or member of a class of people) likely to be affected by D’s actions?


Reasonable foreseeability case law

Reasonable Foreseeability: Case Law

  • Some illustrations

    • Palsgrafv. Long Island R.R. Co. (1928

    • Chapman v. Hearse (1961)


Reasonable foreseeability established category of duty of care

Reasonable Foreseeability: Established Category Of Duty of Care

  • Wyong Shire Council v Shirt (1980) 146 CLR 40 per Brennan J:

    • risk must be “real” in the sense that a reasonable person would not “brush it aside as far-fetched or fanciful.”

  • Koehler -v- Cerebos (Australia) Limited [2005] HCA 15

    McHugh, Gummow, Hayne and Heydon JJ (majority):

    “The central inquiry remains whether, in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful” [33]


Needs something else

Needs Something Else…

  • Sullivan v Moody (2001) 207 CLR 562

    • “The fact that it is foreseeable… that a careless act on the part of one person may cause harm to another does not mean the first is subject to a legal liability…”


Proximity

Proximity

Jaensch v. Coffey (1984)

  • (Proximity involves) notions of nearness or closeness and embraces physical proximity (in the sense of space and time)…, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client, and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained.” (per Deane at 584-585)


The high point of proximity

The High Point of Proximity

  • Bryan v Maloney (1995) 182 CLR 609

    • “A duty of care arises under the common law of this country only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant damage.” (at 543)


Proximity criticised

Proximity Criticised

  • The High Court has expressed reservations about the usefulness of the notion of proximity in recent times

    • Sutherland SC v Heyman (1985)

    • Hill v Van Erp(1997)

    • Perrev Apand (1999)

    • Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000)


Proximity criticised1

Proximity - Criticised

Sullivan v Moody (2001) 207 CLR 562

  • Facts

  • Judgment

    Gleeson CJ, Gaudron, McHugh, Hayne & Callinan JJ:

    [573] “…foreseeability of harm is not sufficient to give rise to a duty of care”

    [578] “The formula is not ‘proximity’. Notwithstanding the centrality of that concept, for more than a century … it gives little practical guidance in determining whether a duty of care exists in cases that are not analogous to cases in which a duty has been established”


Incrementalism

Incrementalism

  • “It is preferable, in my view, that the law should develop novel categories, rather than by a massive extension of a prima facie duty of care restrained only by indefinable considerations which ought to negative, or limit the scope of the duty or the class of persons to whom it is owed.”

    • Brennan J in Sutherland Shire Council v Heyman (1985) HCA


The anns 2 stage test the uk way

The Anns2-Stage Test: The UK Way

  • Anns v Merton London Borough Council [1978] AC 728

  • 2-Stage Test (Wilberforce):

    • It requires first a ‘sufficient relationship of proximity based upon foreseeability’;

    • and secondly considerations of reasons why there should not be a duty of care.


Australia elaborates on anns

Australia Elaborates on Anns

  • Jaensch v. Coffey (1984) per Deane J. p587-8

  • A duty situation could arise from the following combination of factors

    • A reasonable foreseeability of real risk of injury to P either as an identifiable individual or a member of a class of persons, and

    • The existence of proximity between the parties with respect to the act or omission

    • Absence of any rule that precludes such a duty


The 3 stage caparo test

The 3-Stage Caparo Test

  • Caparo Industries Plc v Dickman[1990] 2 AC 605

    • Was damage to P reasonably foreseeable

    • Was relationship between P and D sufficiently proximate, and if so

    • Would it be fair, just and reasonable to apply DOC


Perre v apand 1999 198 clr 180

Perre v Apand (1999) 198 CLR 180

  • Facts

  • High Court gets the chance to explore the current state of duty of Care


Gaudron in perre

Gaudron in Perre

  • Prox is too ambiguous: “First, proximity as the second stage in a three stage test has no more content than it did when it was used as the unifying criterion…” [Gaudron at 10]

  • Too powerful: would prevent incrementalism. Concern that Caparo would be used in any case, even where there is an established duty category

  • Too troublesome: “Fair, just and reasonable” is troublesome:- “They are of little use, if they are of any use at all, to the practitioners and trial judges who must apply the law to concrete facts arising from real life activities.” [Gaudron at 12]


Gaudron concluding

Gaudron Concluding

  • Need for predictability

    • “When legal practitioners are unable to predict the outcome of cases with a high degree of probability, the choice for litigants is to abandon or compromise their claims or defences or to expose themselves to the great expense and unpredictable risks of litigation.” [Gaudron at 20]

  • Incrementalism is best compromise

    • “Until a unifying principle again emerges, however, the best solution is to proceed incrementally from the established cases and principles.” [Gaudron at 25]


Kirby j

Kirby J

  • Look at other jurisdictions

  • Reasonable foreseeability falls short, so proximity has a role to play:

    • “If on the other hand, proximity were to be confined to its original historical purpose as a measure of “nearness and closeness” between the parties in dispute, it cold yet provide a meaningful gateway, in addition to reasonable foreseeability of harm, to afford the starting point for the allocation of a legal duty of care or exemption from its burden. Then it would remain necessary to weigh candidly the competing policy considerations relevant to the imposition of a duty of care.” [Kirby at 24]


Kirby j applying caparo

Kirby J applying Caparo

  • Foreseeability

  • Proximity

  • Policy


Wrapping up the approaches

Wrapping up the approaches

The quest for the unifying principle

- Anns 2-Stage Test

- Caparo

Incremental Approach: A compromise

- Brodie v Singleton Shire Council (2001) 206 CLR 512


Checking in1

Checking In

  • Snails

  • Overview of negligence

  • Arriving at a Duty of Care

  • Categories

  • The harder ones:

    • Proximity and Reasonable Foreseeability v Incrementalism

      ----------------------

  • Some interesting applications

    • Unborn children and the wrongful life cases

  • Legislative reform


Interesting duty application 1

Interesting Duty Application 1

  • The unborn child:

    • There can be no justification for distinguishing between the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his proud father and of a child en ventresa mere whose mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a child ( Per Gillard J in Watt v Rama)

    • Lynch v Lynch (1991)

    • Watt v Rama [1972] VR 353


Unborn child

Unborn Child

  • Wrongful life cases

    • Harriton v Stephens [2006] HCA 15 (9 May 2006) Appeal dismissed (7 to 1 majority)

    • Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing), Hayne J and Callinan J in separate judgments dismissed the Appeal

    • Kirby J dissented


Harriton v stephens

Harriton v Stephens

  • Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)

  • [244] “It was not Dr P R Stephens's fault that Alexia Harriton was injured by the rubella infection of her mother. Once she had been affected by the rubella infection of her mother it was not possible for her to enjoy a life free from disability. ... Dr P R Stephens would have discharged his duty by diagnosing the rubella and advising Mrs Harriton about her circumstances, enabling her to decide whether to terminate her pregnancy; he could not require or compel Mrs Harriton to have an abortion. ”


Harriton v stephens1

Harriton v Stephens

  • Crennan J (Gleeson CJ, Gummow & Heydon JJ agreeing)

  • [249] “It is not to be doubted that a doctor has a duty to advise a mother of problems arising in her pregnancy, and that a doctor has a duty of care to a foetus which may be mediated through the mother[403]. However, it must be mentioned that those duties are not determinative of the specific question here, namely whether the particular damage claimed in this case by the child engages a duty of care.To superimpose a further duty of care on a doctor to a foetus (when born) to advise the mother so that she can terminate a pregnancy in the interest of the foetus in not being born, which may or may not be compatible with the same doctor's duty of care to the mother in respect of her interests, has the capacity to introduce conflict, even incoherence, into the body of relevant legal principle ”


Duty to rescue

DUTY TO RESCUE

  • There are two separate issues in rescue:

    • The ‘duty’ to rescue

    • The duty of care owed to the rescuer

  • There is no positive legal obligation in the common law to rescue

    • The law does not ‘cast a duty upon a man to go to the aid of another who is in peril or distress, not caused by him”: Hargrave v Goldman (`963)

  • There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance

    • Horsley v Maclaren(The Ogopogo) (1971) 22 DLR

  • One is only required to use reasonable care and skill in the rescue


The duty owed to rescuers

THE DUTY OWED TO RESCUERS

  • The rescuer is generally protected : torts recognizes the existence of a duty of care owed to the rescuer.

  • The issue of volenti-non fit injuria: This principle does not seem to apply in modern tort law to rescue situations.

  • ‘The cry of danger is the summons to relief. The law does not ignore these reactions of the mind.. It recognizes them as normal… and places their effects within the range of of the natural and the probable [and for that matter the foreseeable] per Cardozo J in Wagner v International Railway Co. (1921)

    • Chapman v Hearse

    • Videan v British Transport Commission (1963) (rescue attempt to get a child trespassing on railway line)

  • Rescuers may recover for both physical injuries and nervous shock

    • Mount Isa Mines v Pusey (1970)

  • The US fire-fighter’s Rule does not apply in Australia and the UK

    • Ogwo v Taylor (1988) AC 431


Impact of the civil liability act on the duty of care

IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY OF CARE

  • The Civil Liability Act 2002 together with the Civil Liability Amendment (Personal Responsibility) Act 2002 govern the law of negligence in NSW.

    • The Civil Liability Act 2002 was enacted 28th May 2002 and received assent on 18 June 2002

  • Rationale behind the legislation:

    • to limit the quantum of damages for personal injury and death in public liability instances; resultantly lowering insurance premiums.

    • to discourage ‘over litigation’, by the imposition of restrictions and obligations and responsibilities upon plaintiffs and counsel


Civil liability act 2002 duty of care

Civil Liability Act 2002: Duty of Care

  • Statute overrides the common law and that any negligence claim commenced since 20 March 2002 will be governed by the Civil Liability Act 2002.

  • Next lecture, we will consider the application of:

    • general duty of care provisions of s.5B;

    • situations of obvious/inherent risks under ss.5F to I; and

    • situations of dangerous recreational activities under ss.5J to N.


The rationale for reform

The Rationale for Reform

  • [I]t's my view that this country is tying itself up in tape because of over litigation, a long-term trend to see us litigate for everything, to try to settle every problem in our lives...by getting a big cash payment from the courts....a country as small as ours can't afford to have the American-style culture of litigation". (Bob Carr)


The rationale for reform1

The Rationale for Reform

  • ‘We need to restore personal responsibility and diminish the culture of blame.That means a fundamental re-think of the law of negligence, a complex task of legislative drafting.There is no precedent for what we are doing, either in health care or motor accident law, or in the legislation of other States and Territories.We are changing a body of law that has taken the courts 70 years to develop’(Bob Carr)


The approach to reform government s view

The Approach to Reform: Government’s View

  • We propose to change the law to exclude claims that should never be brought and provide defences to ensure that people who have done the right thing are not made to pay just because they have access to insurance (Bob Carr)

  • We want to protect good samaritans who help in emergencies. As a community, we should be reluctant to expose people who help others to the risk of being judged after the event to have not helped well enough (Bob Carr)


Wrap up

Wrap-Up

  • Snails

  • Overview of negligence

  • Arriving at a Duty of Care

  • Categories

  • The harder ones:

    • Proximity and Reasonable Foreseeability v Incrementalism

  • Some interesting applications

    • Unborn children and the wrongful life cases

  • Legislative reform


Torts

TORTS

Civil Liability Act: An Overview of the Duty of Care*

Clary Castrission

[email protected]

*Later lectures will focus on other aspects of the Act (viz breach of duty and damages)


Overview for tonight

Overview for Tonight

  • S35

  • Duty of Care- s5B

    Duty Areas under the CLA

  • Risk (will cover in defences)

    • Assumption of Risk: ss5F- I

    • Recreational Activities: s5J- 5N

  • Public Authorities: ss40-46

  • Good Samaritands: ss55- 58

  • Volunteers: ss59

  • Mental Harm: ss27-33


Claims excluded from operation of the civil liability act s3b 1

Claims excluded from operation of the Civil Liability Act: s3B(1)

  • (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person

  • (AND A WHOLE BUNCH OF OTHERS… LIKE DUST DISEASES, SMOKING ETC)

  • See s3B as it lists where CLA and Motor Accidents Compensation Act 1987 overlap


Duty of care

Duty of Care

  • S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless:

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

    • (b) the risk was notinsignificant, and

    • (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

  • (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

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

    • (b) the likely seriousness of the harm,

    • (c) the burden of taking precautions to avoid the risk of harm,

    • (d) the social utility of the activity that creates the risk of harm.


Section 3b v s5b

Section 3B V s5B

  • Deliberate Act intended to cause harm: s3B (not covered by act)

  • Omission which causes harm: s5B (covered by the act)

  • Deliberate Act without due care NOT intended to cause harm: Drinkwater v Howarth[2006] NSWCA 222


Duty of care commentary

Duty of Care – commentary

  • Section 5B(1) provides a person is not negligent unless… (b) the risk was not insignificant.

  • Wyong Shire Council v Shirt (1980) 146 CLR 40: risk must be “real” in the sense that a reasonable person would not “brush it aside as far-fetched or fanciful.”

  • It is unclear whether “not insignificant” in Section 5B(1)(b) is more restrictive than “not far-fetched or fanciful” in Wyong Shire Council v Shirt


Wyong shire council v shirt

Wyong Shire Council v Shirt

  • Mason J

  • “[13] ... when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.


Duty of care in certain situations contained in the act

Duty of Care in Certain Situations contained in the Act

  • Duty Areas

    • Risk (will cover in defences)

      • Assumption of Risk s5F-I

      • Recreational Activities- s5J to s5N

    • Public Authorities (ss40-46)

    • Good Samaritans (ss55-58)

    • Volunteers (ss59-66)

  • Mental Harm (ss27-33)


Part 5 liability of public other authorities

Part 5 Liability of Public & Other Authorities

  • Sections 40 to 46

  • Provides specific additional protection for public authorities including:

    • the Crown

    • Government departments

    • Local councils

    • Other prescribed bodies


Part 5 liability of public other authorities1

Part 5 Liability of Public & Other Authorities

  • Section 42sets out the principles to apply in determining whether a public or other authority has a duty of care or has breached a duty of care including:

  • the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

  • the general allocation of those resources by the authority is not open to challenge,

  • the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),

  • the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

    Council of the City of Liverpool v Turano & Anor [2008] NSWCA 270


S45 roads authorities

S45- Roads Authorities

  • (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

  • (2) Doesn’t create duty of care simply because the roads authority had actual knowledge of the risk.

  • (3) Carry out roadwork defined to include construction, installation, maintenance, inspection, repair.

  • This done to overturn recent HCA decision in:

    • Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512


Porter v lachlan shire council 2006 nswca 126

Porter v. Lachlan Shire Council [2006] NSWCA 126

  • Facts

    S45 (3) In this section:

    "carry out road work" means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a roadwork within the meaning of the Roads Act 1993 .

    Roads Act 1993 (dictionary)

    "road work" includes any kind of work, building or structure (such as a roadway, footway, bridge…) that is constructed, installed or relocated on or in the vicinity of a road for the purpose of facilitating the use of the road as a road…. and "carry out road work" includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work.


S45 porter v lachlan shire council

s45 - Porter v. Lachlan Shire Council

  • Hodgson JA (Beazley JA & Giles JA agreeing)

  • 34 In my opinion, this case does come within s45, on either of two bases. 35 First, where that part of a road used for pedestrian purposes has been altered by the installation of a footpath and a gutter, leaving what may be called a nature strip in between, it is in my opinion an unduly narrow view of what constitutes a road work to say that, while the made footpath is a road work and the gutter is a road work, the nature strip between them is neither a road work nor part of a road work. In my opinion the better view is that the whole of the area for pedestrian purposes, comprising the made footpath, the nature strip and the gutter, comprises a road work.


S45 porter v lachlan shire council1

s45 - Porter v. Lachlan Shire Council

  • Hodgson JA (Beazley JA & Giles JA agreeing)

  • 36 Second, in any event, where there is a hole in that part of a road which is a nature strip within the area used for pedestrian purposes, it would be road work to fill and make good that hole. That view is not in my opinion precluded by the use of the words “constructed” and “installed” in the definition of road work in the Roads Act, which, unlike the relevant definition in s45 of the Civil Liability Act, is an inclusive definition and not an exhaustive definition. Once it is accepted that to fill and make good the hole would be road work, then the question would arise whether failure to do this would be failure to “carry out any activity in connection with the construction, erection, installation, maintenance, repair or replacement of a road work” within s45(3). In my opinion, it would be: although the words “construction” and “installation”, and the indefinite article “a” in front of “road work”, could be taken as inapt for the filling and making good of a hole, on balance I think it would be too narrow an approach to hold that the words do not extend to such activity.


S45 porter v lachlan shire council2

s45 - Porter v. Lachlan Shire Council

  • Hodgson JA (Beazley JA & Giles JA agreeing)

    • 37 On either basis, s45 applies: on the first basis, the allegation would be that the respondent failed to maintain a road work, and on the second basis, it would be that the respondent failed to construct or install a road work.


S 45 actual knowledge north sydney council v roman 2007 nswca 27

s.45 Actual Knowledge:North Sydney Council –v- Roman [2007] NSWCA 27

  • Facts

  • At Trial


S 45 north sydney council v roman

s.45 North Sydney Council-v- Roman

  • Held, allowing the appeal, per Basten JA (Bryson JA agreeing):

  • 1. For the purposes of s.45 actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs.

  • 2. The evidence demonstrated that no Council officer at a decision-making level had “actual knowledge” of the particular pothole and therefore the appellant did not have such knowledge. Accordingly, the exception to s.45 was not engaged and the statutory immunity prevailed.

  • Note McColl JA (dissenting)


Parts 8 good samaritans

Parts 8 Good Samaritans

S56

  • For the purposes of this Part, a "good samaritan" is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.

    s57

  • (1) A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.


Part 8 good samaritans

Part 8: Good Samaritans

  • S58 where liability not exempted

    • Where good samaritan caused the injury in the first place

    • The good samaritan was under the influence of drugs/alcohol AND failed to take reasonable care

    • The good samaritan was impersonating emergency service worker, policeman or pretending to have the skills to address the current injury


Part 9 volunteers ss59 66

Part 9: Volunteers (ss59-66)

  • Section 60: Defines community work to mean work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, educational or cultural purpose. It excludes community service orders imposed by a court.


Volunteers cont

Volunteers (cont)

  • Section 61: No civil liability for a volunteer doing community work, but does not extend to:

    • Criminal acts (s62)

    • Acts while intoxicated AND volunteer failing to exercise reasonable care (63)

    • Actions outside the scope of the charitable organisation contrary to instructions (s64)

    • Where the volunteer is required by State law to be insured (s65)

    • Or motor vehicle accidents (s66)


Mental harm

Mental Harm

  • At common law- only type of pure mental harm where this liability is recognised psychiatric illness

  • Thus grief or sorrow doesn’t sound damages: Mount Isa Mines v Pusey (1970) 125 CLR 383


Mental harm pre annetts

Mental Harm pre Annetts

  • Suffer from a recognised psychiatric illness

  • Be a person of reasonable fortitude

  • Be subject to a sudden shock

  • Have directly perceived the accident or its immediate aftermath


The 2 major cases

The 2 major cases

  • Both heard together:

    • Tame v NSW (2002) 211 CLR 317

    • Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317


Affecting factors

Affecting Factors

  • Was illness result of sudden shock?

    • “Cases of protracted suffering, as opposed to ‘sudden shock’ could raise difficult issues of causation and remoteness of damage. Difficulties of that kind are more appropriately analysed with reference to the principles of causation and remoteness, not through an absolute denial of liability.” (Gleeson CJ, Gaudron, Gummow , Kirby and Hayne JJ in separate j’ments)

  • Direct perception of distressing events?

  • Relationship between primary and secondary victim

  • Relationship between Plaintiff and Defendant


Ipp report

Ipp Report

  • “... the law has said that a duty to avoid causing mental harm would be imposed only in relation to harm caused by ‘shock’; that this duty was owed only to persons who were physically near to the scene of the ‘shocking’ events at the time they occurred, or who witnessed their ‘immediate aftermath’; and that the duty was owed only to those who witnessed the shocking events or their aftermath with ‘their own unaided senses’.” (138, 9.12)


Ipp report continued

Ipp Report Continued

  • “The fundamental proposition which Tame/Annetts seems to establish is that reasonable foreseeability of mental harm is the only precondition of the existence of a duty of care. It also establishes, however, that a duty of care to avoid mental harm will be owed to the plaintiff only if it was foreseeable that a person of ‘normal fortitude’ might suffer mental harm in the circumstances of the case if care was not taken. This test does not require the plaintiff to be a person of normal fortitude in order to be owed a duty of care. It only requires it to be foreseeable that a person of normal fortitude in the plaintiff’s position might suffer mental harm. In this sense, being a person of normal fortitude is not a precondition of being owed a duty of care.” (138, 9.13) (Original emphasis)


Mental harm1

Mental harm

27 Definitions

In this Part:

"consequential mental harm" means mental harm that is a consequence of a personal injury of any other kind.

"mental harm" means impairment of a person’s mental condition.

"negligence" means failure to exercise reasonable care and skill.

"personal injury" includes:

  • pre-natal injury,

  • impairment of a person’s physical or mental condition, and

  • disease.

    "pure mental harm" means mental harm other than consequential mental harm.


Mental harm2

Mental Harm

  • 29 Personal injury arising from mental or nervous shock

  • 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.


Mental harm3

Mental harm

  • 30 Limitation on recovery for pure mental harm arising from shock

    (1) This section applies to the liability of a person ("the defendant”) for pure mental harm to a person ("the plaintiff") arising wholly or partly from mental or nervous shock in connection with another person ("the victim") being killed, injured or put in peril by the act or omission of the defendant.

    (2) The plaintiff is not entitled to recover damages for pure mental harm unless:

  • the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or

  • the plaintiff is a close member of the family of the victim.


Mental harm4

Mental harm

32 Mental harm—duty of care

  • A person ("the defendant") does not owe a duty of care to another person ("the plaintiff") to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken.

    Codifies the common law test for foreseeability of risk of mental harm in Tame v NSW; Annetts v Australian Stations Pty Ltd [2002] HCA 35


Mental harm5

Mental harm

33 Liability for economic loss for consequential mental harm

A court cannot make an award of damages for economic loss for consequential mental harm resulting from negligence unless the harm consists of a recognised psychiatric illness.


Overview for tonight1

Overview for Tonight

  • S35

  • Duty of Care- s5B

    Duty Areas under the CLA

  • Risk (will cover in defences)

    • Assumption of Risk: ss5F- I

    • Recreational Activities: s5J- 5N

  • Public Authorities: ss40-46

  • Good Samaritands: ss55- 58

  • Volunteers: ss59

  • Mental Harm: ss27-33


Practice question

Practice Question

  • Arnold was a serving police officer who attended the scene of an horrific train derailment in Katoomba NSW, whereby six people were killed and many were injured.

  • He was among the first ones at the scene following the derailment and was involved in the rescue operation by providing emergency first-aid and assisting the injured from the carriages.

  • Arnold searched through the train where he saw dead bodies in horrible condition, as well as badly injured people. One of them, he recognised to be his high-school friend, Steve.

  • Arnold suffered post traumatic stress syndrome, nervous shock and major depressive disorder.

  • State Rail had failed to ensure the train’s “deadman’s” safety device was operating

  • Arnold brought a claim for damages against State Rail alleging he had suffered psychiatric injury due to the negligence of State Rail in failing, inter alia, to ensure the train’s “deadman’s” safety device was operating, or was designed so as to operate in the event of the incapacitation of the driver.

    Did State Rail owe Arnold a Duty of Care?


Torts lecture

TORTS LECTURE

PARTICULAR DUTY AREAS

Clary Castrission

[email protected]

(p) 02 9221 4030


Road map for tonight

Road Map for Tonight

  • Products Liability

  • Defective Structures

  • Professional opinions - done

  • Nervous Shock- done

  • Council and Public Authorities- done

  • Commercial Premises

  • Hotelier/Publican to Intoxicated Patron

  • Pure Ecomic Loss


Product liability

PRODUCT LIABILITY

  • Common law:

  • Donoghue v Stevenson [1932] AC 562

  • Grant v Australian Knitting Mills [1936] AC 85

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


Product liability1

PRODUCT LIABILITY

  • Relevant Statutes:

    Sale of Goods Act 1923 (NSW)

    Pt 4 Performance of the Contract (ss.30 to 40)

    Pt 6 Actions for Breach of the Contract (ss.51 to 56)


Product liability2

PRODUCT LIABILITY

  • Relevant Statutes:

  • Fair Trading Act (NSW)

    Part 4- NSW Consumer Safety and Information Requirements


Product liability3

PRODUCT LIABILITY

  • Relevant Statutes:

  • Trade Practices Act 1974 (Cth)- now Competition and Consumer Act 2010 (from 1 January 2011)

    • Absolute mammoth! Australian Consumer Law in Schedule 2 of Div 2 of Part XI

      See www.consumerlaw.gov.au


Professional opinion

Professional Opinion

  • Civil Liability Act

    -s.5O Civil Liability Act 2002 “Peer professional opinion” (ie. The UK “Bolam” test)

  • S.5P Civil Liability Act 2002 “Duty to warn” remains


Defective structures

DEFECTIVE STRUCTURES

  • Builders:

    Bryan v Maloney (1995) ATR 81- 320

  • Architects:

    Voli v Inglewood Shire Council (1963) 110 CLR 74


Commercial premises

Commercial Premises

  • Thompson v Woolworths (Queensland) Pty Ltd (2005) 221 CLR 234 at 246-247

  • Timberland Property Holdings Pty Ltd v Bundy[2005] NSWCA 419 at [25]-[27]).


Hotelier publican to intoxicated patron

Hotelier/Publican to Intoxicated Patron

  • Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469

    • Facts

    • Held


Cole v south tweed heads rugby league football club limited 2004 217 clr 469

Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469

  • Majority 4 to 2 (McHugh & Kirby JJ dissenting) no duty of care owed by the Club

    Gleeson CJ:

    14….Although there are exceptional cases, as Lord Hope of Craighead pointed out in Reeves v Commissioner of Police of the Metropolis[6], it is unusual for the common law to subject a person to a duty to take reasonable care to prevent another person injuring himself deliberately. … A duty to take care to protect an ordinary adult person who requests supply from risks associated with alcohol consumption is not easy to reconcile with a general rule that people are entitled to do as they please, even if it involves a risk of injury to themselves.

    17. It is possible that there may be some circumstances in which a supplier of alcohol comes under a duty to take reasonable care to protect a particular person from the risk of physical injury resulting from self-induced intoxication[7]. However, the appellant cannot succeed in this case unless there is a general duty upon a supplier of alcohol, at least in a commercial setting, to take such care. I do not accept that there is such a general duty.


Cole v south tweed heads rugby league football club limited 2004 217 clr 4691

Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469

  • Gummow & Hayne JJ:

    65.The appellant's contention that her collision with the driver's vehicle was caused or contributed to by the Club's negligence in continuing to serve her alcohol, when the Club knew or should have known that she was intoxicated, was a contention that depended upon taking a number of steps, some (perhaps all) of which may be contested.

    66.First, what exactly is meant by "serving" the appellant alcohol? Does it encompass, or is it limited to, selling alcohol which it is known that the appellant will consume? Does it extend to selling, to others, alcohol which it is suspected that the appellant will consume? How is the Club to control what other patrons may do with bottles of alcohol which the Club sells them? Given the uncertainties about how and from whom the appellant obtained alcohol during the second half of the day, these are questions that go directly to the formulation of the duty which is said to have been breached.

    67.Secondly, the evidence of what the Club knew, or could reasonably be taken to have known, of what alcohol the appellant took during the day was very slight...


Cole v south tweed heads rugby league football club limited 2004 217 clr 4692

Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469

  • Gummow & Hayne JJ:

    68.Unsurprisingly, there was no evidence which would have revealed that servants of the Club could have (let alone reasonably should have) been able to observe how much the appellant drank during the morning. That is, as we say, unsurprising when it is recalled how many patrons attended the Club. About 100 or 120 had attended breakfast. Some of those patrons stayed at, and no doubt others came to, the clubhouse and the ground to attend the several football games to be played that day. There was, therefore, a large and shifting population to observe. If it is said that the Club owed the appellant a duty to monitor and moderate the amount that she drank, it owed all its patrons such a duty...

    69.Next, what level of intoxication is said to be relevant? Does it mean not lawfully able to drive a motor car? Some drivers may not drive a motor car if they have had any alcohol. Other drivers may be unfit to drive after very few glasses of alcohol. Does "intoxicated" mean, as the primary judge held, "loss of self-control or judgment which is more than of minor degree"[16]? If that is so, many drinkers will arrive at that point after very little alcohol.

    70.All of these questions would have to be answered in deciding what duty of care was owed. None can be answered in isolation. All would require consideration of the purpose for which it is said that the duty alleged is to be imposed.


Cole v south tweed heads rugby league football club limited 2004 217 clr 4693

Cole v South Tweed Heads Rugby League Football Club Limited (2004) 217 CLR 469

  • Callinan J:

    131 I am also of the opinion that in general - there may be some exceptional cases - vendors of products containing alcohol will not be liable in tort for the consequences of the voluntary excessive consumption of those products by the persons to whom the former have sold them. The risk begins when the first drink is taken and progressively increases with each further one. Everyone knows at the outset that if the consumption continues, a stage will be reached at which judgment and capacity to care for oneself will be impaired, and even ultimately destroyed entirely for at least a period.


Pure economic loss

PURE ECONOMIC LOSS

  • What is pure economic loss?

  • Indeterminacy

    • Liability of the defendant to “an indeterminate class, for an indeterminate time, and in an indeterminate amount” Ultramares Corp v Douche (1931) 174 NE 441


Pure economic loss1

Pure economic loss

  • 2 types:

    • Negligent statements leading to pure economic loss

    • Negligent acts leading to pure economic loss, and


1 negligent misstatement causing economic loss

1. Negligent Misstatement Causing Economic Loss

  • Early on: no liability. Pulsey v Freeman (1789); Norton v Asburton [1914] AC 932

  • Why?

    • Words are more volatile than deeds. They travel fast and far afield. They are used without being expended and take effect in combination with innumerable facts and other words. Yet they are dangerous and can cause vast financial damage.. Damage by negligent acts to persons or property on the other hand is more visible and obvious; its limits are more easily defined. (per Lord Pearce in Hedley Byrne & Co v Heller [1964] AC 465 at 534.


  • Hedley byrne co v heller

    Hedley Byrne & Co v Heller

    • Facts

    • How could DOC arise? Special Relationship

      • If someone possessed of a special skill undertakes quite irrespective of contract to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise’ (per Lord Morris)

    • Mutual Life & Citizens’ Assurance v Evatt [1971] AC 793


    Shaddock associates pty ltd v parramatta cc 1981 150 clr 225

    Shaddock & Associates Pty Ltd v Parramatta CC (1981) 150 CLR 225

    • Held

      • … Whenever a person gives information or advice to another upon a serious matter in circumstances where the speaker realises, or ought to realise, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for the other party to act on that information or advice, the speaker comes under a duty to exercise reasonable care in the provision of the information or advice he chooses to give.”


    The issue of skill

    THE ISSUE OF SKILL

    • With all respect I find it difficult to see why in principle the duty should be limited to persons whose business or profession includes giving the sort of advice or information sought and to persons claiming to have the same skill and competence as those carrying on such a business or profession, and why it should not extend to persons who, on a serious occasion, give considered advice or information concerning a business or professional transaction. (Gibbs J in Shaddock)


    Later clarifications

    Later Clarifications

    • Butcher v Lachlan Elder Realty (2004) 218 CLR 592

      • “The mere fact that a person had engaged in the conduct of supplying a document containing misleading information did not mean that that person had engaged in misleading conduct: it was crucial to examine the role of the person in question” (Gleeson CJ, Hayne and Heydon JJ)

    • Tepko Pty Ltd v Water Board (2001) 206 CLR 1


    Factors the court will look at

    Factors the court will look at

    • Nature of relationship

    • Special skill (either actually possessing it or holding oneself to possess it)

    • Nature of subject matter

    • Reliance- reasonable reliance creates DOC, actual reliance establishes breach

    • Context of interchange: professional? Social? Information requested?


    2 negligent act causing pure economic loss

    2. Negligent Act causing pure economic loss

    • Originally- no common law DOC: Leigh & Sullivan v Aliakmon Shipping Co Ltd [1986] AC 785

    • Why?

    • What is pure economic loss caused by negligent act?

    • Indeterminacy

      • Perre v Apand (1999) 198 CLR 180


    The caltex principle caltex oil aust pty ltd v the dredge willemstadt 1976 136 clr 529

    THE ‘CALTEX PRINCIPLE’:Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstadt” (1976) 136 CLR 529

    • Facts


    The caltex principle caltex oil aust pty ltd v the dredge willemstadt 1976 136 clr 5291

    THE ‘CALTEX PRINCIPLE’:Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstadt” (1976) 136 CLR 529

    • Held- Mason J

      • Liability arises when: A defendant can reasonably foresee that a specific individual as distinct from a general class of persons will suffer financial loss… This approach eliminates the prospect that there will come into existence liability to an indeterminate class of persons. (at 593)


    Australia beyond caltex

    Australia beyond Caltex

    • Indeterminacy: Johns Period Furniture v Commonwealth Savings Bank (1980) SASR 224

    • Christopher v Motor Vessel “Fiji Gas” [1993] Aust Tort Reports 81-202

    • Johnson Tiles v Esso Australia [2003] Aust Tort Reports 81-962

      • 1.Reasonable foreseeability of injury;

      • 2. Whether there is a relationship of proximity; and

      • 3. Identification and consideration of competing salient features for and against the finding of a DOC


    Wrap up1

    Wrap-Up

    • Products Liability

    • Defective Structures

    • Professional opinions - done

    • Nervous Shock- done

    • Council and Public Authorities- done

    • Commercial Premises

    • Hotelier/Publican to Intoxicated Patron

    • Pure Economic Loss


    Torts breach of duty

    TORTSBreach of Duty

    Clary Castrission

    [email protected]


    Roadmap

    Roadmap

    • S5B

    • Understanding standard of care

    • Foreseeability of risk

    • Calculus of negligence

    • An Application: Waverly Council v Ferreira [2005]

    • Res Ipsa Loquitur

    • Professional Negligence


    Duty of care1

    Duty of Care

    • S 5B:(1) A person is not negligent in failing to take precautions against a risk of harm unless:

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

      • (b) the risk was notinsignificant, and

      • (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

    • (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

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

      • (b) the likely seriousness of the harm,

      • (c) the burden of taking precautions to avoid the risk of harm,

      • (d) the social utility of the activity that creates the risk of harm.


    Breach of duty

    Breach of Duty

    • Standard of Care

      • What standard of care is owed?

        • Standard of care owed by the reasonable person in the circumstances

        • What would the reasonable person do in the D’s position

    • Duty breached

      • Did the D’s actions fail to meet that standard?

        • Probability of risk

        • Magnitude of harm

    • IF SO

      • Was the response of the d to this reasonable?

        • Calculus of negligence (from s5B), where relevant, consider

          • Reasonability of precautions

          • Social utility

        • Any relevant professional or statutory standards


    Breach of duty from shirt

    Breach of Duty from Shirt

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

    • “... it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.”

    • Applied in Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009] NSWCA 263 (22 September 2009)


    Law of torts

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

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


    Comparing duty to breach

    Comparing DUTY to BREACH

    • Mason J in Wyong v Shirt at 47-48

    • Wagon Mound (No. 2) per Lord Reid

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


    Test for breach

    Test for breach

    • Was the risk of injury to P reasonably foreseeable? DUTY

      • RTA v Dederer(2007) 238 ALR 761

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

    • If so, was the response of the defendant to this risk reasonable? BREACH

      • What would the reasonable person, in the defendant’s position (with the knowledge that they either had or ought to have had) have done in the circumstances out of which the harm arose?

      • Did the D meet the requisite standard of care?

        IF NOT, there has been a breach of duty


    Calculus of negligence under 5b 2

    “Calculus of Negligence” under 5B(2)

    • Probability of harm occurring if care not taken

    • Likely seriousness of harm

    • Burden of taking precautions

    • Social Utility


    Breach of duty likelihood of injury

    Breach of Duty – Likelihood of Injury

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

    • Bolton v Stone [1951] AC 850

    • RTA v Dederer(2007) 238 ALR 761


    Breach of duty seriousness of harm

    Breach of Duty – Seriousness of Harm

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

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

    • Paris v Stepney Borough Council [1951] AC 367


    Breach of duty cost of avoiding harm

    Breach of Duty – Cost of Avoiding Harm

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

    • Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202


    Breach of duty social utility of the act of the defendant

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

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

    • Watt v Hertfordshire County Council

      “It is one thing to take risks when driving for some commercial purpose with no emergency, but quite another to take risks for life and limb.” (Lord Denning


    How duty and breach work together s 5b 1 2

    How Duty and Breach work together– s.5B(1) & (2)

    • Waverley Council v Ferreira [2005] NSWCA 418

    • Facts


    Issue 1 the fence and the undergrowth

    Issue 1: The Fence and the undergrowth

    • S5B(1)

      • Risk of harm foreseeable?

      • Risk of harm significant?

      • In circumstances, would reasonable person have taken precautions?


    S 5b 1 a waverley council v ferreira

    s.5B(1)(a) - Waverley Council v Ferreira

    • Foreseeability of harm

    • 34 The initial element to be determined under s5B(1) is whether the risk was foreseeable. As s5B(1)(a) makes plain, that involves inquiring whether the risk in question is one of which the defendant knew or ought to have known. The relevant risk in relation to the removal of the fence and undergrowth was the risk that children might use the fence and undergrowth to facilitate their access to the roof and, when on the roof, might fall to the ground.

    • Doubleday v Kelly [2005] NSWCA 151

      “The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of risk of injury.” per Bryson JA


    S 5b 1 a waverley council v ferreira1

    s.5B(1)(a) - Waverley Council v Ferreira

    • Ipp JA (Spigelman CJ & Tobias JA agreeing)

    • 43 In my opinion, the relevant risk of injury was that a child such as Martin might fall to the ground once he had climbed on to the roof. In my opinion, that was a foreseeable risk in terms of s 5B(1)(a). It was a risk of which the Council knew or ought to have known. It is immaterial that the Council might not have been able to foresee the precise mechanism that caused Martin to fall.


    S5b 2 in ferreira

    s5B(2) in Ferreira

    • s5B(2)

      • Probability of harm if care not taken

      • Likely seriousness of harm

      • Burden of taking precautions to avoid risk

      • Social utility of activity which creates risk


    S 5b 2 waverley council v ferreira

    s.5B(2) - Waverley Council v Ferreira

    • Ipp JA (Spigelman CJ & Tobias JA agreeing)

    • 51 Section 5B(2) provides a framework for deciding what precautions the reasonable person would have taken to avoid the harm and involves weighing the factors set out in ss5B(2)(a) and (b) against those in ss5B(2)(c) and (d) (subject, of course, to each being applicable in the particular circumstances of the case).

    • 52 In my opinion, the probability as to whether a reasonable person would have taken precautions against a risk of harm (referred to in s5B(2)(b)) must be considered objectively by reference to the particular circumstances of the case (and the state of mind of the defendant is not relevant to this inquiry).


    So would reasonable council remove the fence and undergrowth

    So would reasonable council remove the fence and undergrowth?

    • Ipp JA (Spigelman CJ & Tobias JA agreeing)

    • 53 ... s5B(2)(a) requires consideration to be given to the objective probability of harm occurring if care were not taken. In my view, there was a reasonable possibility of harm occurring if the fence and undergrowth were not removed and children were not prevented from using the fence or the undergrowth as a stepping stone to gain access to the roof. By s5B(2)(a), this possibility must be taken into account.

    • 54 The likely seriousness of the harm, should the risk materialise, was severe injury or death (s 5B(2)(b)) (that is, in consequence of falling from the roof to the ground).


    S 5b 2 waverley council v ferreira1

    s.5B(2) - Waverley Council v Ferreira

    • 55 Garling DCJ found that the fence served no practical purpose and in my view he did not thereby err. There was a gate in the fence and the gate had no lock. It would not have been difficult to climb over the fence. There is nothing to suggest that there was a reason to retain the undergrowth. Both the fence and the undergrowth served no apparent utilitarian or aesthetic purpose and the burden of removing them would have been small (s 5B(2)(c)).


    S 5b 2 waverley council v ferreira2

    s.5B(2) - Waverley Council v Ferreira

    • 56 I have already mentioned that s5B(2)(d) (the social utility of the activity that creates the risk of harm) is not relevant in this case.

    • 57 Weighing the factors set out in ss5B(2)(a) and (b) against those in s5B(2)(c), I conclude that a reasonable Council would have taken the precautions of removing the fence and the undergrowth and Garling DCJ did not err in so holding.


    So what about the grille

    So what about the grille?

    • Did the council breach its duty by not putting a grille on the skylight?

    • IN SOLVING THESE PROBLEMS:

      1. Find out if risk or harm was foreseeable (question of law) under 5B(1)

      2. THEN, balance up the cost of the precautions (under s5B(2)- as directed by 5B(1)(c)


    Council of the city of greater taree v wells 2010 nswca 147 1 july 2010

    Council of the City of Greater Taree v Wells [2010] NSWCA 147 (1 July 2010)

    • Facts

    • KIRBY J in Romeo v Conservation Commission (young woman fell 6.5m off cliff)

    • “It is one thing to hold that a person owes a duty of care of some kind to another. But the critical question is commonly the measure or scope of that duty. The failure to distinguish these concepts can only lead to confusion.”


    Council of the city of greater taree v wells 2010 nswca 147 1 july 20101

    Council of the City of Greater Taree v Wells [2010] NSWCA 147 (1 July 2010)

    • Quoted McColl JA in RTA v Refrigerated Roadways Pty Ltd [2009] NSWCA 263

    • “5B is not a self-contained statement of the circumstances in which a liability for negligence will arise. Rather, subsection 1 sets out three preconditions that must co-exist before a liability in negligence arises, when the type of negligence alleged is failure to take precautions against a risk of harm arising…. Subsection 2 provides a non-exhaustive list of factors the court is required to take into account in deciding whether the third of those preconditions exists.  Section 5B  presupposes the existence of the law of negligence, and operates against its background.”


    Res ipsa loquitur

    Res Ipsa Loquitur

    • Elements:

      • Accident must raise presumption of negligence

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

      • Thing must be under D’s control

      • Actual cause of accident must not be known

        • Barkway v South Wales Transport [1950] AC 185

        • Nominal Defendant v Haslbauer (1967) 117 CLR 448

    • Effect


    Wrapping up breach of duty

    Wrapping up Breach of Duty

    • Standard of Care

      • What standard of care is owed? (Q of law)

        • Standard of care owed by the reasonable person in the circumstances

        • What would the reasonable person do in the D’s position

    • Duty breached

      • Did the D’s actions fail to meet that standard?

        • Was risk of injury to the P Reasonably foreseeable?

        • Degree of risk

        • Magnitude of harm

    • IF SO

      • Was the response of the d to this reasonable?

        • Calculus of negligence (from s5B) AND where relevant, consider

        • Reasonability of precautions

        • Social utility

        • Any relevant professional or statutory standards


    Special breach of duty provisions under the act

    Special Breach of Duty Provisions under the Act

    • Professional Negligence (standard of care)


    Professional negligence

    Professional negligence

    Sections 5O & 5P

    • “Peer professional opinion” (or Bolam) test for determining the appropriate standard of care

      • Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

      • Sidaway v Governors of Bethlehem Royal Hospital [1985] UKHL1

        • “The Bolam principle may be formulated as a rule that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. In short, the law imposes the duty of care: but the standard of care is a matter of medical judgment.” (Lord Scarman at 881)


    Law of torts

    • F v R (1983) 33 SASR 189: per King CJ at 194

      • “The ultimate question is not whether the defendant’s conduct accords with the practices of his profession or some part of it, but whether it conforms to the standard of reasonable care developed by the law.”


    Law of torts

    • Rogers v Whitaker (1992) 175 CLR 479

      • Facts

      • Relevance of professional opinion v conclusiveness


    Professional negligence1

    Professional negligence

    5O Standard of care for professionals

    • A person practising a profession ( "a professional" ) does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice.

    • However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational

    • (3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

    • (4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.


    2 nd reading speech hansard 23 october 2002

    2nd Reading Speech, Hansard 23 October 2002.

    • “The bill also creates an additional defence to alleged professional negligence if the professional acted in a manner that was widely accepted in Australia by pure professional negligence if the professional opinion as competent professional practice.”

      • The Premier, Minister for Arts and Minister for Citizenship.


    Dobler v kenneth halverson and ors 2007 nswca 335

    Dobler v Kenneth Halverson and Ors; [2007] NSWCA 335

    • Facts

    • Trial

    • At Court of Appeal


    S5p failure to warn of risks

    s5P- Failure to warn of risks

    • This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service.


    Wrapping up negligence thus far doc

    Wrapping up negligence thus far- DOC

    • Established category OR

    • Reasonable Foreseeability:

      • Would the reasonable person in the D’s position have foreseen that there was a real risk that carelessness on his/her behalf could cause loss/harm to people in the P’s position?

        • “not far-fetched or fanciful” Shirt

        • s5B(1) – ‘not insignificant’:

          • using s15AA Acts Interpretation Act

          • para7.15 of the Ipp Report states that “the phrase ‘not insignificant’ is intended to indicate a risk that is of a higher probability than is indicated by the phrase ‘not far-fetched or fanciful’” but is not intended “to be a synonym for ‘significant’”.

        • If risk is obvious, there is no DOC: s5G

      • Was P one of these people?

    • Vulnerability

      • Was D in a position of power and knew this?

      • Was P in a position of powerlessness?


    Breach of duty the test

    Breach of Duty- the Test

    • Standard of Care

      • What standard of care is owed?

        • Standard of care owed by the reasonable person in the circumstances

          • Professionals acting in line with professional opinion: s5O and 5P

        • What would the reasonable person do in the D’s position

    • Duty breached

      • Did the D’s actions fail to meet that standard? (Question of fact)

        • Was risk of injury to the P Reasonably foreseeable? (Shirt and 5B)

        • Degree of risk

        • Magnitude of harm

      • Special case: public authorities: s43, roads s45


    Law of torts

    • IF SO

      • Was the response of the d to this reasonable?

        • Calculus of negligence (from s5B) AND where relevant, consider

        • Reasonability of precautions

        • Social utility

    • Res Ipsa Loquitur (evidentiary rule that could help when there is no other explanation for the accident)


    Roadmap1

    Roadmap

    • S5B

    • Understanding standard of care

    • Foreseeability of risk

    • Calculus of negligence

    • An Application: Waverly Council v Ferreira [2005]

    • Res Ipsa Loquitur

    • Professional Negligence


    Torts1

    TORTS

    Causation


    1 general causation

    [1] GENERAL:CAUSATION

    Duty of Care

    breach

    damage

    = Negligence

    causation

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


    Causation the elements

    CAUSATION: THE ELEMENTS

    • Causation involves two fundamental questions:

      • the factual question whether D’s act in fact caused P’s damage: causation-in-fact

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


    Cla s5d

    CLA s5D

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

      • (a) that the negligence was a necessary condition of the occurrence of the harm( "factual causation" ), and

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

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


    Causation in fact

    CAUSATION-IN-FACT

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

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

    • The necessary condition: causa sine qua non


    Causation

    CAUSATION

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

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


    The elements of causation

    THE ELEMENTS OF CAUSATION

    Causation

    Legal

    Factual

    (Causation in fact)


    Legal causation

    LEGAL CAUSATION

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

    • To be liable, D’s conduct must be the proximatecause of P’s injury

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


    Remoteness

    REMOTENESS

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


    Intervening act

    INTERVENING ACT

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

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


    Intervening act 2

    INTERVENING ACT 2

    • A foreseeable ‘intervening act’ does not break the chain of causation

      • Chapman v Hearse

    • Negligent medical treatment subsequent to negligent injury would not necessarily remove liability for D1 unless the subsequent injury was ‘inexcusably bad’, so obviously unnecessary or improper that it fell outside the bounds of reputable medical practice

      • (Mahony v J Kruschich Demolitions)


    Law of torts1

    LAW OF TORTS

    Defences to Negligence


    Defences to actions in negligence

    DEFENCES TO ACTIONS IN NEGLIGENCE

    COMMON LAW

    • Contributory negligence

    • Voluntary assumption of risk, volenti non fit injuria

    • Illegality

      CIVIL LIABILITY ACT

    • Pt 1A - ss5F to I: Assumption of Risk

      - ss5R to T: Contributory Negligence

    • Pt 5- Public Authorities

    • Pt 6 Intoxication

    • Pt 7 Self-Defence & Recovery by Criminals


    Contributory negligence

    Contributory Negligence

    Earlier approaches in Common Law:

    The complete defence (Williams v Commissioner for Road Transport (1933) 50 CLR 258)

    • Butterfield v Forrester (1809) 11 East 60

      - The last opportunity rule

      The development of apportionment legislation


    Contributory negligence at common law the nature of the p s conduct

    Contributory Negligence at Common Law: The nature of the P’s conduct

    D must prove:

    • The P was at fault or negligent

      • Children: Doubleday v Kelly [2005] NSWCA 151

      • Intoxication: Joselyn v Berryman

    • The fault or negligence contributed to the injury or loss suffered by P (causation)

    • The damage was a reasonably foreseeable consequence of the P’s fault or negligence


    1 fault joslyn v berryman wentworth shire council v berryman 2003 hca 34 18 june 2003

    1. FAULTJoslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34 (18 June 2003)

    • Facts


    Joslyn v berryman

    Joslyn v Berryman

    • Trial – Boyd-Boland ADCJ found for Mr Berrymen but reduced damages by 25% for contributory negligence.

    • NSWCA - Priestley JA, Meagher JA and Ipp AJA upheld Mr Berryman's appeal by holding that he was not guilty of any contributory negligence at all. The leading judgment was given by Meagher JA with whom the other members of the Court agreed.

    • "His Honour, as I have said, made a finding of 25% contributory negligence against the plaintiff. The only action of his which could possibly have amounted to contributory negligence was permitting Miss Joslyn to drive instead of him. In this regard, one must view matters as they stood at the time of handing over control of the car, (not as they were in the previous 24 hours), a task which his Honour did not really undertake. One must also, if one concludes that at the time of handing over Mr Berryman was too drunk to appreciate what was happening, a situation as to which there is no evidence in the present case, judge the question of contributory negligence on the hypothesis that the plaintiff did have sufficient foresight to make reasonable judgments. But, although at the time of the accident the blood alcohol levels of Miss Joslyn and Mr Berryman were estimated as being 0.138g/100ml and 0.19g/100ml respectively, there is no evidence that either of them were drunk at the time, and certainly no evidence that at the time Mr Berryman had any reason to think that Miss Joslyn was affected by intoxication. Indeed, quite to the contrary. Of the people who were present who gave evidence, all said that Miss Joslyn showed no signs of intoxication. His Honour so found. Despite, therefore, one's reluctance to overrule a trial judge's finding on apportionment (Podrebersek v Australian Iron and Steel Pty Ltd), it seems quite impossible to justify his Honour's conclusion on contributory negligence. I would be in favour of reducing it from 25% to 0%."


    Joslyn v berryman1

    Joslyn v Berryman

    • HC – McHugh, Gummow, Callinan, Kirby & Hayne JJ allowed the appeal (ie. Overturned the decision of the NSWCA)

    • Besides criticism of the NSWCA for not referring to s.74 MAA 1988 (ie. contrib neg shall be made unless found not to have contributed), Gummow and Callinan JJ found the NSWCA erred in fact.


    Joslyn v berryman2

    Joslyn v Berryman

    • Gummow & Callinan JJ –

      “A person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk, not only during the immediately preceding evening, but also on the night before that. Furthermore Mr Berryman either knew, or ought to have known that the effects of two consecutive evenings of immoderate consumption would have had a compounding effect of tiredness and reduced attentiveness upon both of them... Factually the Court of Appeal erred in not finding that Mr Berryman's and Ms Joslyn's faculties, and accordingly their capacities to observe, react, assimilate, and deal with information and to drive a motor vehicle must have been seriously impaired by the consumption of alcohol”.


    Motor accidents compensation act 1999 s 138

    Motor Accidents Compensation Act 1999 s 138

    • A finding of contributory negligence must be made in the following cases:

      • where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident…

      • Where the driver’s ability to control vehicle was impaired by alcohol and the P as an adult voluntary passenger was/ought to have been aware of this…

      • Where the injured party was not wearing set belt/protective helmet, and was required by law to wear such belt/helmet


    Civil liability act 2002

    Civil Liability Act 2002

    • s5S – a court may determine a reduction of 100% if it is just and equitable to do so

      : compare Wynbergen –v- Hoyts Corp (1997) 149 ALR 25

    • s5T – a court may reduce a claim for damages under the Compensation to Relatives Act 1897 for contributory negligence of the deceased

    • S50(4) – a presumption of contributory negligence of 25% if the plaintiff was intoxicated at the time of injury


    2 causation

    2. CAUSATION

    • Question of fact- was the damage suffered by the P caused by the D’s failure to act?

    • Using a bus as an example- did P run in front of it? Not use the hand rails?

    • Monie v Commonwealth [2007] NSWCA 230


    3 reasonably foreseeable

    3. REASONABLY FORESEEABLE

    • Type of injury must be reasonably foreseeable in the circumstances.

      - Gent-Diver v Neville [1953] St R Qd 1


    Contributory negligence of rescuers

    Contributory Negligence of Rescuers

    • Azzopardi v Constable; Azzopardi v Thompson [2006] NSWCA 319

    • The NSW Court of Appeal has found that two rescuers hit by a motor vehicle contributed to their injury by not taking due care when assisting another motorist. The two rescuers were dressed in dark clothing, neglected to turn on their vehicles' hazard lights and were not alert to oncoming traffic. Hodgson JA and McColl JA both reduced the damages payable to the rescuers from 75% to 50%. Ipp JA dissented, finding that the rescuers ought to have been more careful when in a position of such obvious danger, and would have reduced the damages to 25%. 


    The substance of apportionment legislation

    The Substance of Apportionment Legislation

    - Courts directed to reduce damages recoverable to what it thinks to be ‘just and equitable.’

    Law Reform (Miscellaneous) Act 1965 (NSW) s9

    (1) Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons,

    (a) a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, and

    (b) the damages recoverable in respect thereof shall 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


    What is just and equitable

    What is Just and Equitable?

    Pennington v Norris (1956) 96 CLR 10

    • “By culpability we do not mean moral blameworthiness but degree of departure from the standard care of the reasonable man.”(at 16)

      Reasonableness must be judged in light of all the circumstances: Joslyn v Berryman

      - Wynbergen -v- Hoyts Corporation P/L (1997)


    Contributory negligence under the civil liability act

    Contributory Negligence under the Civil Liability Act

    • s5R (standard of CN- same as negligence)

    • s5S (CN can defeat a claim)

      - In determining the extent of a reduction in damages by reason of CN, 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 is defeated.


    Wrapping up contributory negligence

    Wrapping up Contributory Negligence

    At common law: D must prove

    • The P was at fault or negligent

    • The fault or negligence contributed to the injury or loss suffered by P (causation)

    • The damage was a reasonably foreseeable consequence of the P’s fault or negligence

      Statutory Apportionment


    Voluntary assumption of risk volenti non fit injuria

    Voluntary Assumption of RiskVolenti Non Fit Injuria

    • Rootes v Shelton (1967) 116 CLR 383

    • The elements

      • P must have full knowledge of the risk

      • P must have voluntarily accepted the physical and legal risk

    • Hard to prove

      • Rootes v Shelton (1967) 116 CLR 383


    Volenti v contributory negligence

    Volenti v Contributory Negligence

    Ipp Committee Report (2002):at 8.23

    Since the introduction of the defence of contributory negligence, the defence of voluntary assumption of risk has become more or less defunct. This is because any conduct that could amount to voluntary assumption of risk would also amount to contributory negligence .

    Courts prefer the defence of contributory negligence because it enables them to apportion damages…

    • Difference: CN requires degree of fault, volenti doesn’t


    Full knowledge of risk

    Full Knowledge of Risk

    • Subjective test: very difficult for the D to prove as mereknowledge alone does not imply consent.

    • Canterbury Municipal Council v Taylor [2000] NSWCA 24


    Voluntary acceptance of risk

    Voluntary acceptance of risk

    2 elements:

    The P must have voluntarily accepted that there was a:

    • Physical risk (through injury), and

    • A risk that reasonable care would not be taken by the D (legal risk)

    • Imperial Chemical Industries Ltd v Shatwell [1965] AC 656


    Law of torts

    Rootes v Shelton (1967) 116 CLR 383

    “To say that the P voluntarily assumed the risk of colliding with an obstruction in the water is one thing. To say that the D would carelessly fail to warn him of the presence of such an obstruction or would fail to exercise due care in steering the launch of which he had control is a very different proposition…” (at 395)


    Voluntary assumption of risk

    Voluntary Assumption of Risk

    • Scanlon v American Cigarette Company Overseas Pty Ltd (No 3) [1987] VR 289

      • If it is to be the case that the smoking of the said cigarettes involved risk of injury as alleged… the P knew or ought to have known that the smoking of the said cigarettes involved such risk and the P accepted, consented to and voluntarily assumed the same (extract from D’s statement of defence)


    Var in the work place

    VAR in the Work Place

    • Smith v Baker & Sons P

      The defence is not constituted by knowledge of the danger and acquiescence, but by an agreement to run the risk and to waive your rights to compensation


    Civil liability act 20021

    Civil Liability Act 2002

    Assumption of Risk (Part 1A, Division 4)

    • Does not replace the common law, rather:

    • Rebuttable presumption that a P was aware of a risk of harm if that risk is an ‘obvious risk’: s5G

    • No duty to warn of obvious risk, unless P requests info about the risk, warning is required by law: s5H

    • Excludes liability for materialisation of an inherent risk: s5I Wyong Shire Council vVairy [2004] NSWCA 247


    Sport and recreational activities

    Sport and Recreational Activities

    • By engaging in a sport or pastime the participants may be held to have accepted the risk which are inherent in the sport: Agar v Hyde (2000) 201 CLR 383

    • Inherent risk only those which are naturally incidental to the game being played and any extraordinary, although foreseeable, risks incidental to that sport.


    Civil liability act 20022

    Civil Liability Act 2002

    Recreational Activities (Part 1A, Division 5)

    s5K- definitions

    In this Division: 
"dangerous recreational activity" means a recreational activity that involves a significant risk of physical harm. 
"obvious risk" has the same meaning as it has in Division 4. 
"recreational activity" includes:

    • any sport (whether or not the sport is an organised activity), and

    • any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

    • any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.


    Civil liability act 20023

    Civil Liability Act 2002

    Recreational Activities (Part 1A, Division 5)

    S5L- no liability for harm suffered materialisation of obvious risks of dangerous recreational activities

    s5M- no duty of care for recreational activity where there is a risk warning


    Swain v waverley municipal council 2005 how the hc may view recreational activity

    Swain v Waverley Municipal Council (2005) How the HC may view “recreational activity”

    MR MENZIES QC:It is the Civil Liability Act 2002 and it Division 5 “Recreational Activities” - - -

    • GUMMOW J: What does it say? What is the critical provision?

    • MR MENZIES QC: Well, 5J applies only in respect of liability in negligence for harm to a person (“the plaintiff”) resulting from a recreational activity engaged in by the plaintiff. Recreational activity is divided into two kinds. There is;

    • “dangerous recreational activity” means a recreational activity that involves a significant risk of physical harm.That is in the definition section 5K, and:

    • “recreational activity” includes:(a) any sport . . . (b) any pursuit or activity engaged in for enjoyment, relaxation or leisure, and(c) any pursuit or activity engaged in at a place (such as a beach . . . 

    • 5L No liability for harm suffered from obvious risks of dangerous recreational activities . . . 5M No duty of care for recreational activity where risk warning –so that liability would seem to be excluded if a risk warning is put up, assuming this is a recreational activity. If, on the other hand, as Chief Justice Gleeson points out, this might well be regarded as a dangerous recreational activity, you do not even have to put a sign up, that is the end of it.


    Swain insight to how the hc may view recreational activity

    Swain – Insight to how the HC may view “recreational activity”

    • KIRBY J: It does not sound as though this is categorised. That is paragliding and things of that kind, I would have thought, because they say, “such as on a beach” in the definition of “recreational activity”.

    • MR MENZIES QC: True.

    • GLEESON CJ: What about recreational activities that are dangerous for some people, like people who cannot swim, and not dangerous for others?

    • MR MENZIES QC: I have no doubt that at some point that is going to entertain your Honours.

    • GUMMOW J: Here we are again, more imperfect law reform.


    Wrapping up var

    Wrapping up VAR

    • VAR is tough to for the D to prove as D would have to prove:

    • P had full knowledge of the risk and

    • Voluntarily accepted the physical and legal risk.


    Illegality

    Illegality

    Who has been acting illegally?

    • The P?

    • The D?

    • Both?- Joint Illegal Enterprise

    • D may be able to be absolved from negligence liability


    Joint illegal enterprise

    Joint Illegal Enterprise

    D must prove:

    • They and the P were jointly engaged in an illegal activity, and

    • There was a connection between the illegal activity and the negligent conduct

      Jackson v Harrison (1978) 138 CLR 438

    • The conduct within the illegal enterprise must be connected to the alleged negligence


    Plaintiff illegal activity

    Plaintiff Illegal Activity

    • At common law:

      - Just because the P was engaged in criminal conduct at time of injury doesn’t necessarily prevent duty from being owed: Hackshaw v Shaw (1984) CLR 614


    Civil liability act 20024

    Civil Liability Act 2002

    Illegality

    • S54 – criminals not to be awarded damages if:

      (a) on the balance of probabilities, the conduct constitutes a “serious offence”, and

      (b) that conduct contributed materially to the risk of death, injury or damage.


    Torts lecture 11

    TORTS LECTURE 11

    NUISANCE


    What is nuisance

    WHAT IS NUISANCE?

    • An unreasonable conduct that materially interferes with the ordinary comfort of human existence


    The two sides of nuisance

    THE TWO ‘SIDES’ OF NUISANCE

    NUISANCE

    PRIVATE

    PUBLIC NUISANCE


    Private nuisance the roadmap

    Private Nuisance- The Roadmap

    • Establishment

      • (a)Unlawful interference with someone’s interest in land

      • (b) Balance of rights

      • (c)Intangible interference

    • Who can sue?

      • (a)Proprietary interest

      • (b)Family members?

    • Who can be sued?

      • Person who created the nuisance

      • Others

    • Defences

    • Remedies


    Nuisance in context

    Nuisance in context

    Nuisance v Negligence

    Nuisance v Trespass


    1 a interference with land

    1(a) Interference with land

    • The substantial interference with the plaintiff's use of his/her land by the unreasonable conduct of the defendant: Halsey v Esso Petroleum [1961]

      • Unlawful interference with P’s interest in land

        • Misfeasance:

          • St Helens Smelting Co v Tipping (1965)

          • Bonic v Fieldair (1999)

        • Nonfeasance:

      • The tort protects against interferences with the enjoyment of land

        • Munro v Southern Dairies [1955]


    1 establishment interference

    1. Establishment- interference

    1(a)

    “Inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to dainty modes and habits of living, but according to plain and sober and simple notions among the English people.”

    - Knight Bruce VC in Walter v Selfe (1851)


    P baer investments pty ltd v university of new south wales 2007 nswlec 128

    P Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128;

    1(a)

    • Facts

    • Issues

      • Whether respondent's trees damaged applicant's sewer pipes.

      • Whether cost of replacing pipes should be apportioned

    • Held:


    O neill v frost 2007 nswlec 400 bc200705292

    O'Neill v Frost [2007] NSWLEC 400; BC200705292

    1(a)

    • Facts

    • Issue:

      • Whether removal of fallen tree should be ordered.

      • Whether tree with structural concerns should be removed.

    • Held: Application granted in part.


    Vella v owners of strata plan 8670 2007 nswlec 365 bc200704853

    Vella v Owners of Strata Plan 8670 [2007] NSWLEC 365; BC200704853

    1(a)

    • Facts

    • Applicant applied for removal of trees six years after aware of damage.

    • Issue:

      • Whether trees warranted removal because damaged pavement.

      • Whether damage should be apportioned because applicant aware of damage.

    • Held: Application granted in part.


    Hunt v bedford 2007 nswlec 130 bc200701745

    Hunt v Bedford — [2007] NSWLEC 130; BC200701745

    1(a)

    • Facts

    • Held: Application dismissed.


    1 b the balancing of interests

    1(b) The Balancing of Interests

    “Sic utere tuo ut alienum non laedas” (“Use your own thing so as not to harm that of another”)


    1 b establishment balancing

    1(b) Establishment- balancing

    “A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise as if he lived in the country, and distant from other dwellings, and yet an excess of smoke, smell, and noise may give a cause of action, but in each of such cases it becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action.”

    - Lord Halsbury in Colls v Home & Colonial Stores [1904]

    - Munro v Southern Dairies [1955], Hasley v Esso Petroleum [1961]


    Gray v state of new south wales matter no 2391 96 31 july 1997

    1(b)

    Gray v State of New South Wales Matter No 2391/96 (31 July 1997)

    • The law in this sort of case is tolerably clear. The law of nuisance, the tort upon which the plaintiffs sue, is not to protect people, but to protect property values. That is so because it is an ancient remedy that has come down through the ages. Thus the mere fact that one is disturbed by noise or one gets irritated by prying children or one's privacy is invaded is not sufficient to make out the tort of nuisance…. The plaintiffs are, however, entitled not to have the value of their property diminished by the noisy activities of the defendants (Young J)


    Gray v state of new south wales matter no 2391 96 31 july 19971

    1(b)

    Gray v State of New South Wales Matter No 2391/96 (31 July 1997)

    "A useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society." (per Lord Wright in Sedleigh-Denfield v. O'Callaghan (1940) AC, at p 903 )


    1 b how do we balance

    1(b) How do we balance?

    • Unreasonable is based on the reasonable person, and what ordinary ‘give and take’ limits are.

      • Locality: Munro v Southern Dairies

      • Time, and duration: Wherry v KB Hutcherson Pty Ltd (1987) NSW

      • Nature of activities: Thompson-Schwab v Costaki (1956), McKenzie v Powley (1916)

      • Availability of alternatives: Cohen v Perth (2000)


    Seidler v luna park reserve trust 1995 nsw unreported

    Seidler v Luna Park Reserve Trust (1995) NSW Unreported

    • Facts

    • Rollercoaster Hours:

      • Non-School Holidays

        • Friday: 5.30pm-10pm

        • Sat: 10am-7pm

        • Sun: 11am-7pm

      • School Holidays

        • Thurs: 10am-8pm

        • Fri/Sat: 10am-11pm and Sun: 11am-7pm.

    • Held


    Luna park cases

    LUNA PARK CASES

    • Seidler v Luna Park Reserve Trust (1995)

    • Luna Park Site Amendment Noise Control Act 2005

      • 19A Legal proceedings and other noise abatement action(1) No criminal proceedings, no civil proceedings (whether at law or in equity) and no noise abatement action may be taken against any person with respect to the emission of noise from the Luna Park site.(2) The emission of noise from the Luna Park site does not constitute a public or private nuisance.(3) This section does not apply to or in respect of noise that exceeds the maximum permissible noise level at the closest residential facade


    Street 7 ors v luna park sydney pty ltd 1 or 2006 nswsc 230 6 april 2006

    Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or [2006] NSWSC 230 (6 April 2006)

    • Ps’claim

    • D’s claim

    • Held (Brereton J)


    The nature of d s conduct

    THE NATURE OF D’S CONDUCT

    D’s conduct must be unreasonable.

    • In general act/conduct which is reasonably necessary for the normal user of land would not be considered unreasonable

  • Malicious intent

    • Hollywood Silverfox Farm Ltd v Emmett


  • 2 who can sue

    2. WHO CAN SUE?

    • P must have proprietary interest in the affected land to be able to sue

      “A sulphurous chimney in a residential area is not nuisance because it makes householders cough and splutter but because it prevents them taking their ease in their gardens. It is for this reason that the plaintiff in an action for nuisance must show some title to realty.”

      - Newark, The Boundaries of Nuisance (1949)

    • Malone v Laskey [1907]


    Doesn t include p s view of property

    Doesn’t include P’s view of property

    • Victoria Park Racing & Recreation Grounds v Taylor (1937)


    Who can sue the cases

    Who Can Sue? The Cases

    • Oldham v Lawson [1976] VR 654

    • Khorasandjian v. Bush [1993] Q.B. 727,

    • Hunter v Canary Wharf


    Law of torts

    “If a P, such as the daughter in Khorsandjian, is harassed by abusive telephone calls, the gravamen of the complaint lies in the harassment which is just as much an abuse, or indeed an invasion of her privacy, whether she is pestered in this way in her mother’s house, or even in her car with a mobile phone. In truth, what the CA appears to have been doing was to exploit the law of private nuisance in order to create by the back door a tort of harassment which was only partially effective in that it was artificially limited to harassment which takes place at her home. I myself do not think this is a satisfactory manner in which to develop the law, especially when the step taken was inconsistent with another decision in the CA in Malone”- LORD GOFF


    2 cont abnormal plantiffs

    2(cont) ABNORMAL PLANTIFFS

    • For sensitive uses of land, interference not unreasonable unless it would have been unreasonable to ordinary use of land.

      • Robinson v Kilvert (1889)


    3 who may be sued

    3. WHO MAY BE SUED?

    • The creators of the nuisance

      • Fennel v Robson Excavations Pty Ltd (1977)

      • Hargrave v Goldman (1963)

      • De Jager v Payneham & Magill Lodges (1984)


    Checking in private nuisance

    Checking In: Private Nuisance

    • Establishment

      • (a)Unlawful interference with someone’s interest in land

      • (b) Balance of rights

      • (c)Intangible interference

    • Who can sue?

      • (a)Proprietary interest

      • (b)Family members?

    • Who can be sued?

      • Person who created the nuisance

      • Others

    • Defences

    • Remedies


    Public nuisance the roadmap

    Public Nuisance: The Roadmap

    • Establishment

      • (a)Act/omission which materially affects collective rights of the public

    • Who can sue?

      • (a)The state

      • (b)A plaintiff who suffers ‘special damage’

    • Who can be sued?

      • Person who created the nuisance

      • Others

    • Defences

    • Remedies


    Public nuisance v private nuisance

    Public Nuisance v Private Nuisance

    What’s the difference??


    1 interference queues obstructing public highways and roads

    1. INTERFERENCE: QUEUES OBSTRUCTING PUBLIC HIGHWAYS AND ROADS

    • Silservice Pty Ltd v Supreme Bread Pty Ltd

    • Harper v GN Haden & Sons (1933)


    The degree of interference

    THE DEGREE OF INTERFERENCE

    • It is not every interference however slight that constitutes an actionable nuisance; the interference must be substantial and materialYork Bros v Commissioner of main Roads


    2 who can sue1

    2. Who can sue?

    • P may sue in public nuisance only if he/she can establish special damage above and beyond that suffered by other members of the affected public

      • Walsh v Ervin


    Deepcliffe pty ltd v city of the gold coast

    Deepcliffe Pty Ltd v City of the Gold Coast

    “I cannot see that the appellants here can make out a case that they were denied free uninterrupted access to the roadway by the conduct of the respondents in imposing the parking restrictions in question. True, the parking restrictions were in adjajcent streets, but it cannot be said that access to and from the roadway was denied or seriously impaired… As the learned trial judge observed, “The shorter time limit did not materially alter the position.’ The fact that parking was limited to 1hr duration in portions of two streets near the restaurant could not in law constitute an actionable nuisance on he ground that potential customers were prevented from getting to the restaurant (continuing).”


    Law of torts

    It is difficult to see how the conduct in question of the respondents constituted a nuisance… all the available parking space could have been taken by residents and their visitors at any given point of time.”

    - per Helman J


    Public benefit and public nuisance

    PUBLIC BENEFIT AND PUBLIC NUISANCE

    • In general public benefit is not a defence that can defeat P’s objections to D’s conduct

    • Where the interference to P is not substantial, the public benefit argument may be used to reinforce the justification to the inconvenience caused to P


    Public nuisance the roadmap1

    Public Nuisance: The Roadmap

    • Establishment

      • (a)Act/omission which materially affects collective rights of the public

    • Who can sue?

      • (a)The state

      • (b)A plaintiff who suffers ‘special damage’

    • Who can be sued?

      • Person who created the nuisance

      • Others

    • Defences

    • Remedies


    4 defences

    4. Defences

    • Statutory authority

      • York Bros v Commissioner for Main Roads (1983)

    • Consent


    5 remedies

    5. REMEDIES

    • Abatement of nuisance

    • Injunction to prevent the continuation

    • Damages

      • Bone v Seale [1975]

      • Oldham v Lawson (no. 1) [1976]

      • Challen v McLeod Country Club [2001]

      • Shelfer v City of London Electric Lighting [1895]


    Wrap up2

    WRAP-UP

    NUISANCE

    PRIVATE

    PUBLIC NUISANCE


    Law of torts

    End


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