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TORTS LECTURE 11. VICARIOUS LIABILITY NUISANCE. What is Vicarious Liability. Liability of D for the torts of another although D is without any blame or fault. Types of Vicarious Relations: Master Servant Situations. Partnerships. Principal and Agent Relations.

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  2. What is Vicarious Liability • Liability of D for the torts of another although D is without any blame or fault.

  3. Types of Vicarious Relations: Master Servant Situations

  4. Partnerships

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

  6. The Employer-Employee (Master-Servant) Relations • An employer is vicariously liable for the tortuous acts or omissions by his employee in the course of employment whether or not such act or omission was specifically authorised by the employer.

  7. SERVANTS AND INDEPENDENT CONTRACTORS • Vicarious liability arises only in respect of the torts of the servant • The master/employer is therefore responsible only for the torts of the servant and not the independent contractor • For the master/employer to be held liable, the tortfeasor must: • be a servant, and • commit the tort in the course of his or her employment

  8. WHO IS A SERVANT? • A servant is one who is under a contract ofservice to another an independent contractor is under a contract for services • The contractor is paid for the job by results rather than for time spent, receives a fee or commission, the servant receives wages • The contractor is usually employed on a casual basis, the servant on a permanent basis • The contractor usually specifies his/her work schedule and supplies his/her own tools • The master may select the servant for the task

  9. WHO IS A SERVANT?: THE CONTROL TEST • If the Master controls what the employee does and how it is done, then generally the employee is a servant. The relationship will give rise to Vicarious Liability. • Zuijs v Wirth Bros: The case of the trapeze artist • What is essential is whether there is lawful authority to command or give directives if there is scope for it. • Stevens v Brodribb Sawmilling)

  10. Limits of the Control Test • The nature of the service to be performed is essential in determining the relationship Stevens v Brodribb Sawmilling • “Uncontrollability of a person forming part of an organization as to the manner in which work is performed does not preclude …a relationship of master & servant” • Albrighton v PRA Hospital

  11. The Evidence of ‘Control’ • Master- servant relationship: • Right to have the particular person do the work • Right to suspend or dismiss • Right to exclusive services of person engaged • Right to dictate place of work, hours etc • Independent contractors: • A profession or trade or distinct calling of the contractor • Provision of own place of work or equipment • Creation of contractor of goodwill, saleable assets • Payment of own business expenses • No deduction from remuneration for income tax • These factors are not conclusive

  12. The Totality of the Relationship • Hollis v Vabu Pty Ltd : (motor cycle & bicycle couriers) Gleeson CJ, Gaudron, Gummow, Kirby & Hayne JJ (McHugh & Callinan dissenting) • In present case relationship bet. Parties is to be found not only in the contractual terms but in the system which was operated thereunder and the work practices imposed • CONTROL is not now the only relevant factor. The totality of the rel.ship bet. The parties must be considered • The couriers were employees because: • They did not provide skilled labour • had little control over manner of work • were presented to the public as “emanations” of D • Policy consideration to support vic. liability is deterrence of harm - encourages employer to reduce risk of future harm • D “superintended” couriers’ finances • supplied own bicycles but capital outlay relatively small - simply indicates employment conditions favourable to employer • was considerable scope for control by D - allocation & direction of deliveries

  13. ‘IN THE COURSE OF EMPLOYMENT’ • D is liable only if the servant committed the tort in the course of his or her employment • Whether the torts is committed in the course of employment or not turns on: • What tasks are authorized • Whether the employee’s tortuous act so connected to authorized tasks that it can be seen as a mode of carrying out the task albeit wrongfully • Deaton v Flew

  14. The Cases • Deaton v Flew • Act of barmaid was not authorized & not so connected with any authorized act as to be a mode of carrying out her job • Was an independent personal act not connected with or incidental to her work • Gordon v Tamwaroth Jockey Club: drunken cleaner attacked P. Held no V liability • Canterbury Bankstown RLFC v Rogers • Player’s act was in course of playing for the club and assisted club to win • Player achieved an authorized (desired) result by an improper mode • Was contrary to rules of game but the act was not such as to be outside the scope of employment

  15. NSW v Lepore, Qld v Samin, Qld v Rich (HCA 6.2.2003) • First, where the conduct…was done in the intended pursuit of the employer’s interest or in the intended performance of the contract of employment or , secondly where the conduct… was done in the ostensible pursuit of the employer’s business or apparent execution of the authority which the employer held out the employee as having (Per Gummow and Hayne JJ

  16. Prohibitions on the Employee • Where the employer expressly prohibits a particular conduct, the employee’s act in breach of the prohibition is generally considered to be outside the scope of the employee’s services - employer not liable • However, an act in defiance of a prohibition which deals with CONDUCT WITHIN SPHERE (ie: how, when, where etc tasks are performed) OF EMPLOYMENT will not be outside the scope of employment - the employee would be doing the right services but in the wrong way: employer is liable • Bugge v Brown • A prohibition as to manner…time…or place …or as to the very act itself…will not necessarily limit the sphere of employment • To limit the sphere of employment the prohibition “ must be such that its violation makes the servant’s conduct ..so distinctly remote and disconnected from his employment…”

  17. ‘A Frolic of his/her Own’ • In general the employer is not liable where the employee commits a torts while on a ‘frolic of his or her own’ • Harvey v O’Dell • Detour to get more tools & lunch was in scope of employment • Not a frolic of their own bec. Employees were paid subsistence money & not required to take lunch with them

  18. THE INDEPENDENT CONTRACTOR • Sweeny v Boylan Nominees [2006] HCA 19 • P injured by negligent installation of refrigeration door by tradesman Mr Comminos who was sent by D. held D not liable because tradesman is I/contractor


  20. WHAT IS NUISANCE? • An unreasonable conduct that materially interferes with the ordinary comfort of human existence • http://www.youtube.com/watch?v=Eoe1uncthyk


  22. PRIVATE NUISANCE • The substantial interference with the plaintiff's use of his/her land by the unreasonable conduct of the defendant • Unlawful interference with P’s interest in land • The tort protects against interferences with the enjoyment of land

  23. 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)

  24. THE NATURE OF THE TORT • Conduct or something that emanates from D’s land • Noise • Dirt • Fumes • Noxious smell • Vibrations etc • (interference with TV signals)?

  25. O'Neill v Frost [2007] NSWLEC 400; BC200705292 • Application to prevent damage to property from tree on adjoining land. Trees located on respondent's neighbouring property. One tree fell across applicant's garage. Second tree previously dropped branches from high winds. • Issue: • Whether removal of fallen tree should be ordered. • Whether tree with structural concerns should be removed. • Held: Application granted in part. • Removal of tree should be ordered because likely to damage applicant's property in near future and no resistance from respondent. • Tree with structural concerns should not be removed because insufficiently serious but warranted further investigation.

  26. Hunt v Bedford — [2007] NSWLEC 130; BC200701745 • Application for pruning of tree. Subject tree on respondent's property. • Applicant claimed tree diseased and posed risk of damage to property and injury to persons. • Applicant sought pruning of respondent's tree at respondent's expense. • Whether risk of damage reasonably likely. • Held: Application dismissed. • Risk of damage not reasonably likely because evidence of arborist concluded no immediate risk of significant limb drop from tree.

  27. INTERESTS PROTECTED • The tort centers on interest in the land that is affected • D’s conduct must impact on P’s land as a form of interference to the enjoyment of the land in question • Victoria Park Racing v Taylor (D constructs a platform on his land to view and comment on races taking place on P’s land) • Thomson-Schwab v Costaki (prostitutes in the neighbourhood found to be offensive) • Raciti v Hughes (1995) (flood lights and camera equipment overlooking P’s backyard)

  28. The Balancing of Interests • “Sic utere tuo ut alienum non laedas” (“Use your own thing so as not to harm that of another”)

  29. BALANCING OF INTERESTS • "A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that 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 )

  30. 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

  31. THE NATURE OF D’s CONDUCT 2 • Where D’s conduct is neither unreasonable nor excessive P cannot claim • Robinson v Kilvert (27 degree heat generated as a result of D’s work in lower floor causing damage to P’s sensitive paper) • But where D’s conduct even though slight, but is malicious, P can claim • Hollywood Silver Fox Farm Ltd v Emmett (gunshots to frighten P’s vixen and to discourage P from setting up- farm. Pretext that the shooting was to keep rabbits off the property was not accepted)

  32. A THREE STAGE APPROACH TO NUISANCE • Identification of the factual substantial interference with the plaintiff's use of his land • A finding that the defendant's activity was unreasonable. • “balancing of the equities” to determine whether the defendant should be stopped from the activities or whether the plaintiff will have to content himself with money damages.

  33. NUISANCE AND THE PROTECTION OF PRIVACY • Victoria Park does not stand in the path of the development of such a cause of action [in privacy] (per Gummow, HayneJJ with Gaudron in agreement in ABC v Lenah Games Meats Pty Ltd (2001) 185 ALR 1) • Grosse v Purvis [2003] QDC 151 (16 June 2003) (Action for stalking)

  34. Grosse v Purvis [2003] QDC 151 (16 June 2003) (Skoien DCJ) • It is not my task nor my intent to state the limits of the cause of action nor any special defences other than is necessary for the purposes of this case. In my view the essential elements would be: • (a) a willed act by the defendant, • (b) which intrudes upon the privacy or seclusion of the plaintiff, • (c) in a manner which would be considered highly offensive to a reasonable person of ordinary sensibilities, • (d) and which causes the plaintiff detriment in the form of mental psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which she is lawfully entitled to do

  35. TITLE TO SUE • P must have proprietary interest in the affected land to be able to sue • Oldham v Lawson • Khorasandjian v. Bush [1993] Q.B. 727, • Hunter v Canary Wharf • Blay, ‘The House of Lords and the Lord of the House: Making New sense of Nuisance’ ALJ ( 1999) Vol. 73, 275

  36. WHO MAY BE SUED? • The creators of the nuisance • In general, the person who creates the nuisance by some act of misfeasance as opposed to mere nonfeasance is always liable for it, whether or not he is in occupation of the land on which it originates (The Owners - Strata Plan No 13218 v Woollahra Municipal Council [2002] NSWCA 92 (8 April 2002))( • Occupiers • De Jager v Payneham & Magill Lodges (1984) 36 SASR Occupier may be liable for the acts of a party who resides on the property with occupiers permission • the occupier of premises where the nuisance exists is in generally liable although, if the nuisance not be created by the occupier he is not liable unless, with knowledge or means of knowledge on the part of himself or his agent (The Owners - Strata Plan No 13218 v Woollahra Municipal Council [2002] NSWCA 92 (8 April 2002)) • Hargrave v Goldman ( an occupier may be held liable where they allow the continuation of a nuisance from the land even though they may not have created it initially)

  37. PUBLIC NUISANCE • An unreasonable interference that materially affects the reasonable comfort, health wellbeing and convenience of a class of people • 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 ( D ploughs up part of highway obstructing access to P to the highway, D held liable)

  38. QUEUES OBSTRUCTING PUBLIC HIGHWAYS AND ROADS • Silservice Pty Ltd v Supreme Bread Pty Ltd (queues to buy bread on George Street) • Queues do not necessarily provide a basis for an action even where they seem to obstruct a public access way that affects the P • However D may be liable if • the crowd is attracted by something done by D which is not bona fide necessary for the conduct of his/her business • the facility for the purpose of D’s trade is inadequate or not suitable to hold or control the crowd • D could employ some other reasonable means within his control to minimize or prevent the damage to P

  39. 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

  40. 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

  41. Street & 7 ors v Luna Park Sydney Pty Ltd & 1 or [2006] NSWSC 230 (6 April 2006) • Ps’claim: Defendants owed the owners and occupiers of the properties neighbouring Luna Park, a duty to take reasonable care to avoid foreseeable risk of economic loss with respect to their properties • D’s claim: the standing of the plaintiffs to injunctive relief depends upon the exposure of their properties to noise emissions, and that on that basis proceedings on the Injunction Claim are “with respect to the emission of noise”. . • Held: The claim is not a claim with respect to the emission of noise from the Luna Park site, and is not barred by s 19A(1). However, the Negligence Claim is not maintainable by reason of s 19A, and ought to be struck out (Brereton J)

  42. PUBLIC NUISANCE LITIGATION • http://www.youtube.com/watch?v=5sptYB_lrL • http://www.youtube.com/watch?v=jp5gXfRIWLo&feature=channel4 • http://www.youtube.com/watch?v=mKIIISB4cms

  43. REMEDIES • Abatement of nuisance • Who bears the cost of abatement? • Normally the abater does, but see Proprietors-Strata Plan No 14198 v Cowell where it was held that D may be required to bear cost if the steps taken by P to abate were in reasonable mitigation

  44. Owners Strata Plan 4085 v Mallone — (2006) 12 BPR 23,691; [2006] NSWSC 1381; • Whether defendant liable to contribute to abatement of nuisance involving rocks falling from land of defendant onto plaintiff’s propertty. Dislodgment of rocks occurred through careless quarrying by former land owner. Plaintiff argued rocks and associated debris would continue to fall and posed risk to life and property. • Issue: • Whether defendant had obligation to co-operate with plaintiff. • Whether defendant liable to pay for all remedial work. • Held: Application granted. • Defendant bound to use best endeavours to co-operate with plaintiff to find reasonable solution to problem. • Defendant liable to contribute to cost of work but not to pay for all as no active wrongdoing by defendant and work solely to benefit plaintiff

  45. P Baer Investments Pty Ltd v University of New South Wales [2007] NSWLEC 128; • Applicant claimed respondent's large fig trees damaged sewer pipe situated on applicant's property. Applicant sought payment by respondent to fully meet cost of replacing sewer pipes. • Issue: • Whether respondent's trees damaged applicant's sewer pipes. • Whether cost of replacing pipes should be apportioned • Held: • Respondent's trees damaged applicant's sewer pipes because evidence of arborist showed fig tree roots in pipes and respondent's fig trees only species in vicinity. • Cost of replacing pipes should be apportioned because of possible forseeability of damage being occasioned by tree roots at time applicant's property constructed.

  46. Vella v Owners of Strata Plan 8670 [2007] NSWLEC 365; BC200704853 • Application for removal of trees and compensation for property damage. Trees mature and unlikely to increase in size. Trees created minor pavement cracks. Cracks did not inhibit pedestrian or vehicle access. Trees damaged both driveways. • Applicant applied for removal of trees six years after being 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. • Removal of trees unwarranted by pavement damage because further damage unlikely given maturity of trees. • Driveway damage apportioned because A was aware of damage for some time before applications brought.

  47. REMEDIES • Injunction to prevent the continuation • Damages

  48. KAZAA Litigation • http://www.youtube.com/watch?v=59x5ULus8xY

  49. CLIP ON NEGLIGENCE • http://www.youtube.com/watch?v=zWia3GCzyLQ&feature=related

  50. End

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