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LAW OF TORTS. WEEKEND LECTURE 2B G reg Young Contact: NEGLIGENCE Defences Remedies – Damages Personal Injury/Death DEFAMATION NUISANCE. DEFENCES TO ACTIONS IN NEGLIGENCE. COMMON LAW Contributory negligence Voluntary assumption of risk Illegality CIVIL LIABILITY ACT

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law of torts



Greg YoungContact:

NEGLIGENCEDefencesRemedies – Damages Personal Injury/Death



defences to actions in negligence


  • Contributory negligence
  • Voluntary assumption of risk
  • Illegality


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

- ss5R to T: Contributory Negligence

  • Pt 5 - s45 “Highway Immunity” restored
  • Pt 6 Intoxication
  • Pt 7 Self-Defence & Recovery by Criminals
contributory negligence the nature of the p s conduct
Contributory Negligence: The nature of the P’s conduct
  • To plead the defence D bears the onus of proof and must prove the requisite standard of care that has been breached by P.
  • It would seem that courts apply the standard leniently to P, and whether P’s action by reason of D’s negligent conduct constitutes an unreasonable risk to him/herself will depend on the circumstances of each case
the substance of apportionment legislation
The Substance of Apportionment Legislation
  • Where any person suffers damage as the result partly of his/her own fault and partly of the fault of any other persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but 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 (Law Reform (Miscellaneous) Act 1965 (NSW) s10
joslyn v berryman wentworth shire council v berryman 2003 hca 34 18 june 2003
Joslyn v Berryman; Wentworth Shire Council v Berryman [2003] HCA 34 (18 June 2003)
  • Facts - Mr Berryman drank enough alcohol in the company of Ms Joslyn on Friday evening, 25 October 1996, to be so intoxicated as to feel "fairly crook" on the following morning.

- He worked during the day on Saturday, rested for a time, and then, at about 9pm went to a party at a property near Dareton in south-western New South Wales. With one interruption, at about 11.30pm, Mr Berryman spent his time at the party, until about 4am, drinking alcohol. By that hour he admitted that he was beyond doubt, quite drunk. He went to sleep on the front seat of his utility motor vehicle. In his evidence he claimed to have no further recollection until he heard a scream, and realized that he was a passenger in his vehicle which was turning over.

- Mr Berryman had been friendly with Ms Joslyn before the Friday night preceding the accident. He was aware that she had lost her driving licence on her conviction for driving a motor vehicle with a blood alcohol content of 0.15g/100ml.

joslyn v berryman
Joslyn v Berryman

- Early in the morning of the Sunday Ms Joslyn had placed her swag on the ground beside Mr Berryman's vehicle and had gone to sleep. Ms Joslyn woke not long after daylight, having heard Mr Berryman moving about in his vehicle. No one else was up at that time.

- Mr Berryman then drove, Ms Joslyn as a passenger into Mildura, along the road upon which the vehicle was later to overturn. The journey took some 15 to 20 minutes. When they arrived at a McDonald's café, Mr Berryman entered, ordered food, paid, drove towards the river, stopped and ate the food. He did not drink alcohol in that time.

- Ms Joslyn said Mr Berryman had commenced the drive back to Dareton, but, at some time after they entered Hollands Lake Road she noticed he was dozing off. She must have reproached him for doing so for he said, "Well, you drive the car then."

- He stopped the vehicle and exchanged places with Ms Joslyn. She then commenced to drive it and did so to the point of the accident.

joslyn v berryman7
Joslyn v Berryman

- Ms Joslyn said that she and Mr Berryman spent the Friday evening drinking together until after midnight at hotels in Wentworth. Afterwards they returned to Ms Joslyn's residence where they continued drinking.

- Ms Joslyn took a bottle of whisky with her to the party on the following Saturday evening. She travelled as a passenger in a car with three other women. Ms Joslyn drank from the bottle at the party. She too was seriously affected by alcohol, and the blood alcohol reading, some hours later, was 0.102g/100ml. Indeed Ms Joslyn was observed by others at the party to be "quite drunk and staggering about" at 4.30am.

joslyn v berryman8
Joslyn v Berryman

- Ms Joslyn had last driven a vehicle three years earlier. She had at some time previously told Mr Berryman of that. She did not see the curve until the last minute. "It was just there all of a sudden and it turned really sharply and the car wouldn't go round the bend."

- By the time the vehicle entered the curve Ms Joslyn had been driving, she estimated, for a couple of minutes at most. She could not say at what speed she travelled as the speedometer of the vehicle was broken.

- Describing the curve where the vehicle left the road and overturned, she said that it looked as if it were just a simple curve "and then it goes right back around sharply". That was something she realized when she was already in the curve. Mr Berryman suffered serious injuries in the accident.

  • Trial – Boyd-Boland ADCJ found for Mr Berrymen but reduced damages by 25% for contributory negligence.
joslyn v berryman9
Joslyn v Berryman
  • 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 berryman10
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 berryman11
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
  • 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
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%. 
voluntary assumption of risk
Voluntary Assumption of Risk
  • In general where P voluntarily assumes the risk of a particular situation, she/he may not be able to maintain an action against D for negligence in relation to that situation
  • The elements
    • P must have perceived the danger
    • P must have fully appreciated the danger
    • P must have voluntarily accepted the risk
voluntary assumption of risk16
Voluntary Assumption of Risk
  • Scanlon v American Cigarette Company Overseas Pty Ltd (No 3) [1987] VR 289 (P contracted lung cancer by allegedly smoking D’s cigarettes, D sued for negligently and misleadingly advertising cigarettes)
    • 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 (injured by falling rock while working a drill, fellow workers had complained of the danger previously, issue whether P voluntarily accepted the risk, held defence not applicable)
  • 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
physical and legal risk
Physical and Legal Risk
  • By engaging in a sport or pastime the participants may be held to have accepted the risk which are inherent in the sport… but this does not eliminate all duty of care of the one participant to the other
civil liability act 200219
Civil Liability Act 2002

Assumption of Risk

  • s5F – “obvious risk” defined
  • s5G – injured person presumed to be aware of obvious risk unless proven otherwise
  • s5H – no proactive duty to warn of obvious risk in certain circumstances
  • s5I – no liability for materialisation of “inherent risk” (as defined)
swain v waverley municipal council
Swain –v- Waverley Municipal Council
  • Pre-Civil Liability Act: “Obvious Risk”

Facts - Three people went to the beach that afternoon, the plaintiff and his two companions.

- The conditions were benign; P argued the benign conditions hid a danger.

- P and his two companions (Mr Wilson & Ms Galvin) went into the water between the flags, and that was a strongly contested issue at the trial.

- Mr Wilson, went in first. He was wading out when he kicked something and it was the edge of a sandbar – a sharp sand wall – when he was about waist-deep. He did not see it before that.

- Ms Galvin went into the water and stumbled into a level change, a variation in the water depth. She did not see that before she encountered it.

- P’s evidence was that he went into the water to about waist-deep or a little higher, when a wave came towards him. He dived – a “flat dive” – into the wave, and that is all he recalled until he realised that he was severely injured. He saw nothing.

- So, to that extent, there was a condition in the water which was not obvious to those three people at least.

swain v waverley municipal council21
Swain –v- Waverley Municipal Council

Facts - D’s case was that by reason of drink and taking ecstasy the night before, P was reckless and was outside the flags

- The lifeguard’s (Mr Nightingale) evidence was that he patrolled the beach. He could not say what had occurred with respect flag placement between 6 am and 10 am. From 10 until the afternoon when the accident occurred, the flags had not been moved, the conditions on the beach had not changed. He patrolled the beach and observed conditions in the water from his outlook post on the north end at the beach.

- Mr Nightingale gave evidence that he could tell whether the water was shallow or deep, where there were sandbars and where there were not by the colouration of the water (ie. Sandbar is “yellowy” and deeper water is “darker green”).

- The flags would be moved if conditions required it. The determination of whether conditions required it was made by the lifeguards on duty at the time. Mr Nightingale’s evidence was that he both patrolled either on foot, an all-terrain vehicle, or observed from his position at the lookout post.

swain v waverley municipal council22
Swain –v- Waverley Municipal Council

Facts– Nobody asked Mr Nightingale whether there was any safer place to put the flags.

- Suffering a spinal injury in surfing was reasonably foreseeable. There was evidence of that inasmuch as the surf lifesaving club kept equipment to deal with spinal injuries.

- Damages had been agreed.

- The jury found contributory negligence of 25 per cent (ie. presumably, diving under a very small wave) and the effect of that was to reduce the agreed damages to a judgment figure of $3.75 million.

swain v waverley municipal council23
Swain –v- Waverley Municipal Council
  • NSWCA - Upon the appeal, the Court of Appeal being constituted by Chief Justice Spigelman (dissenting) and Justices Handley and Ipp (majority), the Court of Appeal split in favour of the Council.
    • During the course of the appeal the appellant Council amended and raised a ground of appeal that there was no evidence to support a finding that the placement of the flags was negligent. Ultimately, it was that ground alone which succeeded before the Court of Appeal. Chief Justice Spigelman, finding there was evidence, Justices Ipp and Handley finding that there was none.
    • Menzies QC: “The majority said that although it was safe to swim, although there may have been a representation that it was safe to swim, that is not to say it was safe to dive... Justice Spigelman’s position on that was surfing at Bondi Beach or anywhere else requires as part of the activity, diving, so that distinction really goes nowhere. If it was safe to swim then one has to accept, we say, it must incorporate safe to dive, obviously within reasonable bounds”
swain v waverley municipal council24
Swain –v- Waverley Municipal Council
  • HC – 3-2 majority found in favour of Mr Swain BUT the appeal was limited to whether the NSWCA should have disturbed the jury’s finding of breach of negligence.
  • Gleeson CJ: “The system does not regard the trial as merely the first round of a contest destined to work its way through the judicial hierarchy until litigants have either exhausted their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply retry the case.”
swain v waverley municipal council25
Swain –v- Waverley Municipal Council
  • McHUGH J: That is the only issue in the case, is it not? The issue is so narrow you can hardly see it. It is whether the representation that Mr Nightingale agreed the flags indicated that it is safe swimming includes safe diving through waves as you go out into the water... I would have thought 90 per cent of people, at least under the age of 50, get wet by diving through the first lot of waves they encounter, and this is what your client did, did he not?
swain v waverley municipal council26
Swain –v- Waverley Municipal Council
  • GUMMOW J: You see, your evidence was that the flags were not moved. That was your point.
  • MR MENZIES: Yes.
  • GUMMOW J: And you say it was up to your opponent to say some exculpation.
swain insight to how the hc view the operation of the cla
Swain – Insight to how the HC view the operation of the CLA
  • MR MENZIES QC: Indeed, because obviously the defendant, in considering its duty, has to take into account that sometimes people do do risky manoeuvres and that may be the simple explanation for it. Of course, so far as closing every beach in Australia, that is of historical interest, certainly in New South Wales, because as a result of the Civil Liability Act the chances of this plaintiff, were he to proceed now and succeed in tort against the defendant, are nil.
  • KIRBY J: It cuts a little both ways, that it is Parliament saying that the approach of the courts in the past has been too generous or as Justice Thomas said “too Santa Claus”.
  • MR MENZIES QC: Your Honour, what it demonstrates, in our respectful submission, is the legislature doing its job as it perceives it to be and that is, there is a policy decision made, policy decisions generally speaking are for the legislature, not for courts. The legislature has decided as a matter of policy that these torts are no longer sound in damages in New South Wales for whatever reason. It is not a bad example of the separation of powers and the appropriate organ of Government.
  • KIRBY J: How is that done? Have you the section of the civil liability? Has that passed into law in New South Wales?
  • MR MENZIES QC: It is now, your Honour, yes. It was not relevant at the time. I did not include it on our list or provide copies, but it is the Civil Liability Act 2002 and it Division 5 “Recreational Activities” - - -
swain insight to how the hc view the operation of the cla28
Swain – Insight to how the HC view the operation of the CLA
  • 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 view the operation of the cla29
Swain – Insight to how the HC view the operation of the CLA
  • 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.
  • There is no general principle of law that a person who is engaged in some unlawful act is to be disabled from complaining of injury done to him by other persons, either deliberately or accidentally he does not become a caput lupinum (an outlaw) ( per Latham CJ: Henwood v Municipal Tramsways Trust
the test to disentitle the defence
The Test to Disentitle the Defence
  • In each case the question must be whether it is part of the purpose of the law against which the the P has offended to disentitle a person doing the prohibited act from complaining of the other party’s act or default
  • Italiano v Barbaro (1993) 114 ALR 21(injury sustained while parties were in the process of looking for a spot to stage accident; Neaves & Whitlam JJ not “appropriate” to fix a standard of care in the circumstances )
civil liability act 200232
Civil Liability Act 2002


  • 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.

negligence remedies

Negligence - Remedies


recoverable heads of loss personal injury
  • Windeyer J in: Teubner v Humble(1963) 108 CLR 491
    • Three ways in which personal injury can give rise to damages:
      • destruction or reduction(of existing mental or physical capacity)
      • new needs (which did not exist prior to the injury)
      • production of pain (and suffering)
  • These categories include:
    • loss of earning capacity
    • the cost of medical and nursing care (past and future)
    • physical pain
    • mental anguish
damages personal injury

out of pocket expenses

loss of income up to the date of verdict less any deductions* (This may be included in loss of earning capacity)


future medical and hospital expenses

future economic loss

loss of amenities and enjoyment of life

Pain and suffering

loss of expectation of life

out of pocket expenses
  • Not affected by Pt 2 of the Civil Liability Act
  • In general this includes all expenses incurred by the plaintiff on account of the breach up to the date of verdict (Paff v Speed (1961) 105 CLR 549, 558-9)
    • medical expenses
    • surgical fees
    • Transportation
    • Special needs etc
loss of income
  • [See ss.12 & 14 Civil Liability Act]
  • Loss of past & future superannuation
  • Nett loss of pay plus overtime:
    • less any savings to be made as a result of the injury (eg cost of transport to work)
    • less any boarding and lodging savings eg for being in hospital (Sharman v Evans (1977) 138 CLR 563
    • less allowance for income tax deductions (Cullen v Trappell (1980) 146 CLR 1)
future hospital and medical care expenses
  • P is entitled to recover the future cost of hospital, medical, nursing and home care.
  • P is entitled to recovery of such cost even where the care (nursing/home care) is provided gratuitously by a spouse or relative Griffiths v Kerkemeyer (1977) 139 CLR 161
  • The damages for such expenses are calculated by reference to the market cost of the services
loss of earning capacity
  • The onus is on P to provide evidence of real possibility of the potential/capacity yet unexploited that would have been exploited in the future but for the injury suffered (Mann v Elbourn (1973) 8 SASR 298 ( police officer who was aspiring to be a lawyer)
  • Where D maintains that P retains the capacity to earn, the onus is on D to provide the relevant evidence and the range of work open to P
non economic loss
  • Non-economic loss is traditionally claimed under three main heads of damage:
    • Pain and suffering
    • loss of amenities
    • loss of expectation of life
      • "is not the prospect of length of days, but the prospect of a predominantly happy life . . . The ups and downs of life, its pains and sorrows as well as its joys and pleasures . . . have to be allowed for in the estimate" Benham v. Gambling (1941) AC 157: (p 166 )
assessment of non economic loss
  • There is no acceptable criteria for assessing what is fair compensation for a particular non-economic loss
  • (Sharman v Evans) – P was 20 yrs old injured in MVA rendered a quadraplegic:
    • Her ability to breathe, eat, speak, move, control her excretions, have social and sexual intercourse, bear or look after children is either greatly impaired or destroyed. She also went through the ordeal of releasing the young man from his promise to marry her…The estimate in respect of pain and suffering is seldom adequate( Murphy J)
    • She has suffered and will continue to suffer for the rest of her life in her left shoulder, another of her few remaining sensory areas…Pain and suffering and loss of amenities of life is a head of damages which is particularly difficult to assess (Gibbs and Stephen JJ)
civil liability act 200242
Civil Liability Act 2002

Part 2 Personal Injury Damages

  • Received assent on 18 June 2002
  • Section 11A:

(1) does not apply to claims excluded by Section 3B (eg. Damages for dust diseases, use of tobacco products, workers’ compensation…)

(2) Part 2 applies regardless of whether the claim is brought in tort, contract, statute or otherwise

(3) A court cannot award damages, or interest on damages, contrary to Part 2.

civil liability act 200243
Civil Liability Act 2002
  • Pt 2 Non-economic loss:
  • No damages for non-economic loss unless assessed at 15% of a most extreme case (eg. 15% = 1% or $3,500, 16% = 1.5% or $5,250, …26% = 8% or $28,000, …33% = $115,500, …100% = $350,000): Section 16(1) & (3)
  • Maximum non-economic loss = $350,000: Section 16(2)
  • Maximum for non-economic loss indexed: Section 17
  • Courts/parties may refer to other awards of non-economic loss in earlier court decisions: Section 17A
civil liability act 200244
Civil Liability Act 2002

Exemplary, punitive & aggravated damages:

  • A court cannot award exemplary, punitive or aggravated damages in an action for personal injury resulting from negligence : s21
civil liability act 200245
Civil Liability Act 2002
  • Pre-judgment Interest:
  • No interest payable on damages for non-economic loss or gratuitous attendant care: s18(1)
  • If interest is awarded (eg. Past economic loss), the “relevant interest rate” is the Commonwealth Govt 10-year benchmark bond rate: s18(4)
civil liability act 200246
Civil Liability Act 2002
  • Economic Loss:
  • Maximum for gross loss loss of earnings = 3 times average weekly earnings: s12
  • 5% discount rate for future economic loss: s14
  • Gratuitous Attendant Care:
  • No damages awarded if services provided:

(a) for less than 6 hours per week, and

(b) for less than 6 months: s15(3)

Geaghan v D’Aubert [2002] NSWCA 260

Harrison v Melhem [2008] NSWCA 67 

negligence remedies47

Negligence - Remedies


the scope of the actions


Dependents may sue for loss

actual or expected benefits

Parent/master may sue for

wrongful deprivation of the

Services of a child/servant

Loss of services

Loss of consortium

An action that permitted

the husband to sue

for wrongful deprivation of the

wife’s consortium

common law and the survival of actions
  • In the event of death from a wrongful act there are two potential plaintiffs:
    • the estate; and
    • dependants
  • Traditionally in Common Law, a personal action ‘died’ with the victim
the estate lord campbell s act 1846
The Estate: Lord Campbell’s Act (1846)
  • The Act modified the Common Law rule in England.
    • The effect of the legislation was to give to the estate the action which the deceased would have had she or he survived
  • Australian States and Territories have adopted similar statutes with modifications
survival of actions nsw
  • Law Reform (Miscellaneous Provisions) Act (NSW) 1944 Part 2 Survival of causes of Action After Death
    • Subject to the provisions of this section, on death of any person …all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate;...
  • Section 2(2) of the Law Reform (Miscellaneous Provisions) Act (NSW) 1944 does not allow for recovery of the following types of damages:
    • exemplary damages
    • loss of earning capacity/loss of future probable earnings
    • loss of expectation of life
    • pain and suffering
  • Incidental losses or gains except for funeral expenses will not affect the quantum of damages
heads of damages

Needs created; reasonable expenses incurred before death

Reasonable funeral expenses


loss of earning capacity

Non-economic loss

dependents claims
  • Compensation to Relatives Act 1897 (NSW)
    • 3(1) Whenever the death of a person is caused by a wrongful act, neglect, or default, and the act , neglect or default is such as would ( if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof , then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages
dependants standing
  • Compensation to Relatives Act 1897 (NSW) S4:
    • spouses
    • parents (including those in loco parentis)
    • de factos Compensation to Relatives Act (De facto Relationships )Amendment Act 1984
    • children (including step children)
    • siblings (half and full)
scope of loss
  • Public Trustee v Zoanetti (1945) 70 CLR 266
    • ‘The basis for the action is not what has been called solatium, that is to say, damages given for injured feelings or on the ground of sentiment, but damages based on compensation for pecuniary loss’
    • What must be ascertained is whether any and what loss has been sustained by the relatives of the deceased … (Dixon J , 279)
heads of damages57
  • Loss of economic support/loss of reasonable expectation of financial benefit
  • Loss of domestic services
loss of reasonable expectation of financial benefit
  • The benefit is a ‘chance’ that is lost. P must therefore establish such ‘chance’ in accordance with the principles of reasonable certainty. (Taff Vale Railway Co v Jenkins (1913)AC 1, 7
    • All that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact from which the inference can be reasonably drawn...
  • It may be immaterial that the deceased was unemployed prior to his/her death
  • In the case of a young child, there has to be evidence sufficient to establish the potential to provide the benefit
domestic services
  • Nguyen v Nguyen (1990) CLR 245 (held gratuitous services of deceased spouse for the benefit of husband & children had a monetary value)
    • The claim: ‘loss of the deceased’s domestic capacity being the value of services such as child care, cooking, washing, ironing and cleaning’
  • The definition of ‘services’ is broad:
    • ‘There is no reason why ‘services’ in this context should be given an unduly narrow construction, as if a wife is no more than a house keeper’ Per Dawson, Toohey and McHugh JJ in Nguyen v Nguyen)
    • Where the services are likely to to be replaced as a result of remarriage, the reasonable prospect of that remarriage will serve to reduce the compensation to which the plaintiff will be entitled … because the P’s loss is thereby directly reduced ( Per Dawson, Toohey and McHugh JJ in Nguyen v Nguyen)
loss of consortium
  • The traditional common position permitted a husband to maintain an action under three heads for loss of consortium (actio per quod consortium amisit)
    • Loss of the wife’s company including sexual companionship
    • Loss of her domestic services
    • Medical and other expenses incurred as a result of the injury to the wife
  • In Qld & SA the action to available to both spouses; in NSW, Tas and WA, the action has been abolished
loss of services
  • Traditionally the common law allowed a cause of action (actio per quod servitium amisit) for the loss of services of:
    • Children
    • Servants
  • While the action for loss of services in the case of the child is rare today, action for loss of services from a servant remain a feature of the common law
loss of services servants
  • The action was traditionally restricted to menial services offered by the servant. In Australia there is no restriction based on the types of services as such
  • Heads of damage:
    • Loss of profits
    • Payment to the servant of sick-pay or pension
    • Out of pocket expenses such as Workers Comp or medical expenses.
  • The Motor Accidents Comp. Act 1999 excludes compensation for loss of services s 142
  • The Employees Liability Act 1991 excludes against employees by employers
  • P cannot claim for the death of a servant (Sawn v Williams)
cattanach v melchior 2003 hca 38 16 july 2003
Cattanach v Melchior [2003] HCA 38 (16 July 2003)


  • Dec ’67 – Mrs M underwent an appendectomy at Balmain Hospital, Sydney as a 15 year old. Her right ovary was filled with a blood clot and removed. However, her left and right fallopian tubes were unaffected.
  • 1984 – Mr & Mrs M married
  • 1985 & 88 – Two daughters were born
  • Nov ’91- Mrs M 1st saw Dr C (gynaecologist), who formed the view that the right ovary and fallopian tube were removed in 1967
cattanach v melchior 2003 hca 38 16 july 200364
Cattanach v Melchior [2003] HCA 38 (16 July 2003)


  • Mar ‘92 – Dr C performed a laparoscopic tubal ligation at Redland Hospital, Brisbane. He found “…No right tube or ovary visible. Consistent with patient’s history of right salpingo-oophorectomy...”

- In fact, the right fallopian tube was obscured by bowel adhesions so only the left fallopian tube was clipped.

- Dr C did not see Mrs M again.

  • Nov ’96 – Mrs M fell pregnant at age 44 years.
  • May ‘97 – Healthy son, Jordan, was born

- Experts representatives of the parties were present at the birth and found the right fallopian tube was present

cattanach v melchior 2003 hca 38 16 july 200365
Cattanach v Melchior [2003] HCA 38 (16 July 2003)


  • Sept ‘97 – Mrs M underwent an hysterosalpingogram, a procedure in which dye is inserted into the uterus and the results are observed on x-ray.

- The results showed the right fallopian tube was patent.

- Consensus of medical opinion was that conception occurred as an ovum transmigrated from the left ovary to the right fallopian tube

  • Trail judge (Holmes J) found Dr C was negligent in failing to adequately inform Mrs M of the possibility that the procedure would fail so as to give her the option of considering further investigation by way of hysterosalpingogram

Trial Judge’s Award (unchallenged on appeal)Mr M’s Damages:At paragraph 15, Gleeson CJnoted that Holmes J applied the “blessing argument” to reduce the claim for loss of consortium but no reduction was made for the subject of the appeal.


Trial Judge’s Award (subject of appeal)Mrs & Mr M’s Damages:At paragraph 20, Gleeson CJ noted Holmes J accepted a schedule prepared by Mr M setting out past and anticipated costs of raising Jordan to age 18 years. “For the early years, about half of the estimated expenditure was on food. In the later years, that proportion dropped to about one third. Other items included clothing, medical and pharmaceutical expenses, child care, travelling to and from school, birthday and Christmas presents each year, and entertainment... It included items of reasonable discretionary expenditure...”All Justices of the High Court considered the sums claimed by Mr M were relatively low but Hayne and Heydon JJ in separate judgments posed the question at paragraphs 208 and 306 respectively whether the wealthy should awarded higher compensation.

cattanach v melchior 2003 hca 38 16 july 200369
Cattanach v Melchior [2003] HCA 38 (16 July 2003)

Appeal – Limited to the costs of raising and maintaining Jordan

  • Qld Court of Appeal – Dr C’s appeal dismissed (McMurdo P and Davies JA, Thomas JA dissenting)
  • High Court of Australia – Dr C’s appeal dismissed (majority of McHugh & Gummow JJ, Kirby J and Callinan J, with Gleeson CJ, Hayne J and Heydon J dissenting)
cattanach v melchior 2003 hca 38 16 july 200370
Cattanach v Melchior [2003] HCA 38 (16 July 2003)

High Court – Summary of dissenting views

  • Gleeson CJ – claim involves moral, natural and legal obligations so there is no clear reason why such a claim should cease at 18 years

- [para 38] “…It is a human relationship, regarded by domestic law and by international standards as fundamental to society. To seek to assign an economic value to the relationship, either positive or negative, in the ordinary case, is neither reasonable nor possible. ”

  • Hayne J – [para 258] “...what is seen to be the desirable paradigm of family relationships in which the child and parent are of mutual support of each other. In that sense, and only in that sense, the law might be seen as concluding that every child is a blessing.”

- [para 261] “...the law should not permit the commodification of the child...”

  • Heydon J – [para 356] “Human life is invaluable in the sense that it is incapable of valuation. It has no financial worth which is capable of estimation... To calculate them in money terms and then permit their recovery in relation to the performance of the duty is to engage in an activity lacking any meaningful correspondence with the duty...”
cattanach v melchior 2003 hca 38 16 july 200371
Cattanach v Melchior [2003] HCA 38 (16 July 2003)

High Court – Summary of the majority

  • McHugh & Gummow JJ – [para 68] “The unplanned child is not the harm for which recompense is sought…it is the burden of the legal and moral responsibilities which arise by reason of the birth of the child that is in contention… What was wrongful in this case was not the birth of the third child to Mr & Mrs M but the negligence of Dr C. ”

Kirby J – [para 144] “...for a very long time judges and juries have been obliged to put money values on equally nebulous items such as pain and suffering and loss of reputation. Calculation of the cost of rearing a child is, by comparison, relatively straightforward.”

- [para 145] “The notion that a child might be hurt emotionally following the later discovery that parents had sought sterilization and had gone to court... Is unconvincing... In the real world, cases of this kind are about who must bear the economic costs of the upkeep of the child. Money, not love or the preservation of the family unit, is what is in issue.”

Callinan J – [para 295] “One strong contrary argument against the appellants which I accept, is that a holding for them here would be tantamount to the conferral of a new form of immunity upon doctors and hospital authorities.”

civil liability amendment act 2003

Part 11 - Damages for the birth of a child

Section 70 Application of Part

(1) This Part applies to any claim for damages in civil proceedings for the birth of a child, regardless of whether that claim is made in tort, in contract, under statute or otherwise.

(2) This Part does not apply to any claim for damages by a child in civil proceedings for personal injury (within the meaning of Part 1A) sustained by the child pre-natally or during birth.

(3) This Part does not apply to civil liability that is excluded from the operation of this Part by section 3B but, despite that section, does apply to liability of the kind referred to in section 3B (1) (a).

civil liability amendment act 200373
  • 71 Limitation of the award of damages for the birth of a child

(1) In any proceedings involving a claim for the birth of a child to which this Part applies, the court cannot award damages for economic loss for:

(a) the costs associated with rearing or maintaining the child that the claimant has incurred or will incur in the future, or

(b) any loss of earnings by the claimant while the claimant rears or maintains the child.

(2) Subsection (1) (a) does not preclude the recovery of any additional costs associated with rearing or maintaining a child who suffers from a disability that arise by reason of the disability.

what is nuisance
  • An unreasonable conduct that materially interferes with the ordinary comfort of human existence
the two sides of nuisance




private nuisance
  • Unlawful interference with P’s interest in land
  • The tort protects against interferences with the enjoyment of land
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)?
interests protected
  • The tort centres 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 v-Schwab v Costaki (prostitutes in the neighbourhood)
    • Raciti v Hughes (1995) (flood lights and camera equipment overlooking P’s backyard)
title to sue
  • P must have proprietary interest in the affected land to be able to sue
    • Blay, ‘The House of Lords and the Lord of the House: Making New sense of Nuisance’ ALJ ( 1999) Vol. 73, 275
the nature of d s conduct
  • D’s conduct must be unreasonable.
    • In general, acts which are reasonably necessary for the normal use of the land would not be considered unreasonable
    • Munro v Southern Dairies ( smells from D’s property where he keeps 5-7 horses with associated smells, noise and flies held to constitute a nuisance)
abnormal plantiffs
  • 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)
who may be sued
  • The creators of the nuisance
    • Fennell v Robson Excavations (1977)
  • 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
    • 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)
public nuisance
  • Any nuisance that materially affects the reasonable comfort 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)
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
the degree of interference
  • It is not every interference however slight that constitutes an actionable nuisance; the interference must be substantial and material(York Bros v Commissioner of Main Roads: construction of a bridge across a river obstructs navigation by P, held 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
  • Abatement of nuisance (self-help remedy)
    • Who bears the cost of abatement?
    • Normally the abater does as often there is little or no cost, 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
  • Injunction to prevent the continuation
  • Damages