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LAW OF TORTS WEEKEND LECTURE 2A NEGLIGENCE Duty of care & Breach: Civil Liability Act Damage. IMPACT OF THE CIVIL LIABILITY ACT ON THE DUTY OF CARE.

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law of torts weekend lecture 2a negligence duty of care breach civil liability act damage
LAW OF TORTS

WEEKEND LECTURE 2A

NEGLIGENCE

Duty of care & Breach: Civil Liability Act

Damage

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
claims excluded from operation of the civil liability act s3b 1
Claims excluded from operation of the Civil Liability Act: s3B(1)
  • a) an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct. Note Part 7 does apply to intentional torts done with intent to injure.
  • (b) dust diseases under the Dust Diseases Tribunal Act 1989
  • (c) personal injury damages where the injury or death concerned resulted from smoking or other use of tobacco products
  • (d) actions governed by Part 6 of the Motor Accidents Act 1988 and Chapter 5 of the Motor Accidents Compensation Act 1999 except the provisions that subsection (2) provides apply to motor accidents
  • (e) Workers Compensation Act 1987, Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987, Workers Compensation (Dust Diseases) 1942, Victims Support and Rehabilitation Act 1996 or Anti-Discrimination Act 1977 or a benefit payable under the Sporting Injuries Insurance Act 1978
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.
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
duty of care s 5b 1 2
Duty of Care – s.5B(1) & (2)
  • Waverley Council v Ferreira [2005] NSWCA 418
  • Facts

– 15 December 2000 12 yr old boy died when he fell to the ground through a skylight in the roof of a building known as the Community Centre in Kimberley Park

- The boy was throwing a soft dart with a friend and mistakenly threw it onto the roof. He gained access to the roof by climbing a mesh fence attached to the building and undergrowth. The fence and undergrowth made it relatively easy for children to climb onto the roof. The fence had no utilitarian purpose as it had a gate without a lock.

s 5b 1 a waverley council v ferreira
s.5B(1)(a) - Waverley Council v Ferreira
  • Ipp JA (Spigelman CJ & Tobias JA agreeing)
  • 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.
  • 35 There can be no doubt that the Council knew or ought to have known that children frequently climbed on to the roof of the Community Centre. Children playing at the park were often seen on the roof. Mr Ferreira said that he saw children on the roof “sometimes twice a week”. Martin’s friend, Dima, said that on a few occasions he himself had climbed onto the roof. Some of Dima’s friends had also climbed on to the roof as had other children. A witness testified that “maybe weekly you could see at least one person up there”.
s 5b 1 a waverley council v ferreira8
s.5B(1)(a) - Waverley Council v Ferreira
  • Ipp JA (Spigelman CJ & Tobias JA agreeing)

39 It was reasonably foreseeable that, once on the roof, a boy might be attracted to the skylight and stand on it or otherwise in some way rest his weight upon it.

  • 41 ... Irrespective of whether the Council knew or ought to have known of the condition of the skylight it was reasonably foreseeable to the Council that a child who climbed on to the roof might come to serious harm by falling to the ground. Such a fall might be caused by an infinite variety of circumstances, impossible to identify in advance.
s 5b 1 a waverley council v ferreira9
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.
duty of care10
Duty of Care

5C Other principles

In proceedings relating to liability for negligence:

  • the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible , and
  • the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
  • the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.
assumption of risk
Assumption of risk

Injured persons presumed to be aware of obvious risks

5G Injured persons presumed to be aware of obvious risks

  • In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obviousrisk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
  • For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
s5g obvious risk
s5G – Obvious Risk
  • Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17 (2 March 2006)
  • The plaintiff injured his knee while playing Oztag (touch football) on the defendant council's field. The field had several sandy patches where the council had ‘topped up' wear to the grass and the injury was suffered when the plaintiff stepped in one of these. Ipp JA, in his leading judgment, upheld the trial judge's finding that the field was in a fit condition and that the defendant was not liable. He found that the risk from the condition of the field was one substantially similar to many other fields used for amateur sport, and that the risk was obvious to all.
s5g obvious risk13
s5G – Obvious Risk
  • Eutick v City of Canada Bay Council [2006] NSWCA 30 (3 March 2006)
  • The plaintiff was a pedestrian who tripped over the ridge of a gully or depression in a roadway. In the leading judgment, Campbell AJA held that the risk was ‘very obvious', as part of the ‘normal incident[s] of life', and that it did not pose a significant risk. This was held to be the case in spite of the fact of the injury and the amount of traffic on the roadway, which was said to have added to the risk. His Honour held the defendant council was entitled, having regard to ‘the obviousness of the risk, and the limited nature of the hazard posed by it, to expect that the exercise of reasonable care for their own safety by pedestrians would obviate the need for any further response' to the risk.
  • His Honour added that s5(1)(b) CLA put the onus of proving that ‘the risk was not insignificant' on the plaintiff, and that she had not discharged this.
assumption of risk14
Assumption of risk

5H No proactive duty to warn of obvious risk

  • A person ( "the defendant" ) does not owe a duty of care to another person ( "the plaintiff" ) to warn of an obvious risk to the plaintiff.
  • This section does notapply if:

(a) the plaintiff has requested advice or information about the risk from the defendant, or

(b) the defendant is required by a written law to warn the plaintiff of the risk, or

(c) the defendant is a professional and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant.

(3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

assumption of risk15
Assumption of risk

5I No liability for materialisation of inherent risk

  • A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.
  • An "inherent risk" is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.
  • This section does not operate to exclude liability in connection with a duty to warn of a risk.
s5i inherent risk
s5I – Inherent Risk
  • Lormaine Pty Ltd v Xuereb [2006] NSWCA 200
  • The NSW Court of Appeal has held that a shipowner was liable for a woman's injuries when she was washed from the bow by a ‘rogue wave'. One of the defences raised by the shipowner was that the waves were an inherent and obvious risk of dolphin-watching. However, the shipowner was unable to prove that the risk was obvious because the brochure had given the impression of a gentle cruise. Also, the ship's presence in a known ‘wave zone' meant that the risk was avoidable, not inherent. The woman's damages were reduced, however, because the trial judge had not considered pre-existing conditions and the plaintiff had failed to alleviate the symptoms by losing weight.
recreational activities
Recreational activities

5M No duty of care for recreational activity where risk warning

  • A person ( "the defendant" ) does not owe a duty of care to another person who engages in a recreational activity ( "the plaintiff" ) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.
  • If the plaintiff is an “incapable person”, the defendant may rely on a risk warning only if:

(a) the incapable person was under the control of or accompanied by another person (who is not an incapable person and not the defendant) and the risk was the subject of a risk warning to that other person, or

(b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent).

recreational activities18
Recreational activities

5M No duty of care for recreational activity where risk warning

  • The fact that a risk is the subject of a risk warning does not of itself mean:

(a) that the risk is not an obvious or inherent risk of an activity, or

(b) that a person who gives the risk warning owes a duty of care to a person who engages in an activity to take precautions to avoid the risk of harm from the activity.

recreational activities19
Recreational activities

5N Waiver of contractual duty of care for recreational activities

  • Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill.
  • Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term.
recreational activities trade practices act
Recreational Activities – Trade Practices Act
  • Recreational Activities – Sections 5J to N

- The NSW Govt could not exclude the operation of the Trade Practices Act 1974, although the Federal Govt has done so by passing The Trade Practices Amendment (Liability for Recreational Services) Act 2002 proclaimed on 19/12/02

recreational activities21
Recreational activities

5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person ( "the defendant" ) is not liable in negligence for harm suffered by another person ( "the plaintiff" ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk.

s5l dangerous recreational activities
s5L – Dangerous Recreational Activities
  • Fallas v Mourlas [2006] NSWCA 32 (16 March 2006)
  • The plaintiff was holding a spotlight from a vehicle, while others shot the kangaroos. He was accidentally shot by the defendant when the defendant tried to unjam his weapon, despite having given the plaintiff assurances that the weapon was not loaded. The defendant argued it was an obvious risk in the course of a dangerous recreational activity (s5L CLA).
  • The court held unanimously (Ipp JA, Tobias JA and Basten JA) that spotlighting was a ‘dangerous recreational activity'. Ipp JA and Tobias JA held that for the risk to be ‘significant' (s5K) it ‘must have been a somewhere between a trivial risk and a risk likely to materialise'. Ipp JA held that in determining whether a recreational activity was dangerous involved particularising and segmenting the activity where necessary.
  • The court held by majority (Ipp JA, Basten JA) that the risk that eventuated was not an ‘obvious risk' (s5F) in the course of a dangerous recreational activity because of the defendant's assurances that the gun was not loaded. It therefore ruled in favour of the plaintiff.
professional negligence
Professional negligence

Sections 5O & 5P

  • “Peer professional opinion” (or Bolam) test for determining the appropriate standard of care
  • Rogers v Whitaker (1992) 175 CLR 479
    • Cases involving a risk of injury or death arising from a professional service, community standards and other considerations may be applied by the court in determining the appropriate standard of care to be exercised.
professional negligence24
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
mental harm
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 harm26
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. (eg Waverley Council v Ferreira [2005] NSWCA 418)
mental harm27
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 harm28
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.

part 1a duty of care more commentary
Part 1A Duty of Care – more commentary
  • Recreational Activities – Sections 5J to N
  • Issues of concern:

Is the commercial incentive for the safe provision of recreational & commercial activities gone?

What real bargaining power do consumers have in negotiating a contractual waiver?

Definition of recreational activity is broad and ambiguous.

parts 8 9 good samaritans volunteers
Parts 8 & 9 Good Samaritans & Volunteers
  • Proclaimed on 6/12/02: Sections 55 to 66
  • Parts 8 & 9 operate to protect Good Samaritans and volunteers.
  • Section 58: no protection if the Good Samaritan is under the influence of alcohol, impersonating a police officer or falsely representing that they have skills or expertise in providing emergency assistance.
parts 8 9 good samaritans volunteers31
Parts 8 & 9 Good Samaritans & Volunteers
  • 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.
  • Section 61: No civil liability for a volunteer doing community work but does not extend to criminal acts, acts whilst intoxicated, a volunteer failing to exercise reasonable care and skill, actions outside the scope of the charitable organisation or contrary to instructions, where the volunteer is required by State law to be insured or motor vehicle accidents.
breach of duty general principles
Breach of Duty – General Principles
  • Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J:

“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff… If the answer is in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do… 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.”

breach of duty civil liability act
Breach of Duty – Civil Liability Act
  • Civil Liability Act does not apply to claims excluded by Section 3B (eg. dust diseases, use of tobacco products, worker’s compensation…)
  • Section 5B(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.
s 5b 2 waverley council v ferreira
s.5B(2) - Waverley Council v Ferreira
  • Ipp JA (Spigelman CJ & Tobias JA agreeing)
  • 45 The matters set out in s5B(2), in substance, are a reiteration of Mason J’s remarks in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. ...
  • 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).
s 5b 2 waverley council v ferreira35
s.5B(2) - Waverley Council v Ferreira
  • 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 ferreira36
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 ferreira37
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.
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
breach of duty seriousness of risk
Breach of Duty – Seriousness of Risk
  • 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 utility of the act of the defendant
Breach of Duty – Utility of the Act of the Defendant
  • Section 5B(2)(d) the social utility of the activity that creates the risk of harm.
  • South Australian Ambulance Transport Inc. v Walhdeim(1948) 77 CLR 215
proof of negligence general
Proof of Negligence - General
  • CIVIL LIABILITY ACT 2002 – s.5E: Onus of proof
  • In determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

Holloway v McFeeters (1956) 94 CLR 470

proof of negligence res ipsa loquitor
Proof of Negligence – Res Ipsa Loquitor
  • “The action/thing speaks for itself”
  • Nominal Defendant v Haslbauer (1967) 117 CLR 448
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

overseas tankship uk ltd v morts dock and engineering co ltd the wagon mound 1
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound 1)
  • The facts:
  • The rule: the replacement of ‘direct’ cause (Re Polemis )with reasonably foreseeable’
  • It is not the hindsight of a fool, but the foresight of a reasonable man which alone can determine liability (per Viscount Simonds)
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.
the elements of causation
THE ELEMENTS OF CAUSATION

Causation

Legal

Factual

(Causation in fact)

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
kavanagh v akhtar
Kavanagh v Akhtar
  • Facts:a Muslim woman who was physically injured while shopping was forced by the medical condition she had to then cut her previously long hair… Husband rejects her causing her to suffer depression
    • In any event, the possibility that a person will desert a partner who has been disfigured in the eyes of the deserter is sufficiently commonplace to be foreseeable (Per Mason J)
  • It was not necessary that the defendant should have foreseen the precise nature of the consequences of his act. In the present case, the plaintiff’s psychiatric illness was foreseeable
chapman v hearse jolley v sutton
Chapman v Hearse; Jolley V Sutton
  • The place of intervening acts in causation
  • Jolley v Suttton
    • P then aged 14, sustained serious spinal injuries in an accident. It arose when a small abandoned cabin cruiser, which had been left lying in the grounds of the block of flats, fell on Justin as he lay underneath it while attempting to repair and paint it. As a result he is now a paraplegic.
    • D held liable; what must have been foreseen is not the precise injury which occurred but injury of a given description. The foreseeability is not as to the particulars but the genus.
increase in matearial risk
INCREASE IN MATEARIAL RISK
  • M’Ghee v National Coal Bd (1972) 3 All ER 1008
    • The P claimed employer’s failure to provide showers to wash away residue caused his dermatitis - the doctors were not certain if showers would have stopped the plaintiff contracting dermatitis D held liable but mainly on policy grounds
  • Wilsher v Essex Area Health Authority (1988):
    • a premature baby negligently received an excessive concentration of oxygen and suffered retrolental fibroplasia leading to blindness. However the medical evidence demonstrated that this can occur in premature babies who have not been given excessive oxygen, and there were four other distinct conditions which could also have been causative of the fibroplasia
    • M’Ghee distinguished on the grounds that there was only one causal candidate (brick dust)
the law of torts

The Law of Torts

Particular Duty Areas:

Product Liability

Abnormal Plaintiffs

Unborn Children

liability for defective products the scope
Liability for Defective Products: The Scope
  • Product liability as a regime for protecting consumer rights:
    • Defective structures/premises (as products?)
    • Consumer goods as products
the difficulties with implied warranties
The Difficulties with Implied Warranties
  • Warranties do not ‘run’ with goods. It is simply an element of the contract and does not therefore attach to the goods as such
  • There is generally no ‘ vertical privity’ between the manufacturer and the ultimate consumer let alone between wholesalers and the ultimate consumers
  • Privity of contract ‘remained a recalcitrant obstacle to the extension o warranties between the manufacturer and the ultimate consumer ‘ (Fleming)
the act of the defendant
The Act of the Defendant
  • Negligent design of product
    • O’Dwyer v. Leo Buring [1966] WAR 67
  • Negligence in the manufacturing process:
    • Grant v. Australian Knitting Mills
  • Negligent Marketing of a Product
    • Adelaide Chemical & Fertilizer Co

V. Carlyle

  • Failure to warn of dangers or proper use

Norton Aust. Pty Ltd V. Steets Ice Cream Pty Ltd

the unborn child
The Unborn Child
  • In general, a duty of care may be owed to P before birth
    • Watt v. Rama: “the possibility of injury on birth to the child was… reasonably foreseeable…On the birth, the relationship crystallised and out of it arose a duty on the D…”
    • X v. Pal: Duty to a child not conceived at the time of the negligent act
    • Lynch v. Lynch: Mother liable in neg to her own foetus injured as result of mother’s neg driving.
wrongful birth claims
Wrongful Birth Claims
  • Claims by parents in respect of the birth of a child who would not have been born but for the D’s negligence.
    • Vievers v Connolly (1995) 2 Qd R 325 (Mother of disabled child born bec. Pl lost opportunity to lawfully terminate pregnancy. Damages included costs for past & future care of child for 30 years.)
    • CES v Superclinics (1995-6) 38 NSWLR 47 Mother lost opportunity to terminate pregnancy as a result of D’s neg failure to diagnose pregnancy. NSW Ct of Appeal held claim maintainable but damages not to include costs of raising the chills as adoption was an option.
    • Melchior v Cattanach [2001] QCA 246 Mother of healthy child after failed sterilization procedure. Qld CT Appeal held damages shld include reasonable costs of raising the child. High Ct agreed on appeal
wrongful life claims
Wrongful Life Claims
  • Claim by child born as a result of negligent diagnosis by D of child’s parent.
  • Bannerman v Mills (1991) ATR 81-079. Summary dismissal of claim by child born with disabilities as result of mother having rubella whilst pregnant. Tort of wrongful life unknown to common law
wrongful life claims61
Wrongful Life Claims
  • Edwards v Blomeley; Harriton v Stevens; Waller v James (2002 ) NSW Supreme Court, Studdert J.
  • ·No duty of care to prevent birth
  • ·Policy reasons -
    • 1.Sanctity & value of human life
    • 2.impact of such claim on self-esteem of disabled persons
    • 3.exposure to liability of mother who continued with pregnancy
    • 4.Plaintiffs’ damage not recognizable at law - would involve comparison of value of disabled life with value of non-existence
    • 5.Impossibility of assessment of damages in money terms - taking non-existence as a point of comparison.
cla part 11 s71
CLA Part 11 s71
  • 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.
defective premises
Defective Premises
  • In general the occupier of premises owes a duty of care to persons who come on to the premises
  • While the notion of occupier's liability may have developed initially as a separate category of tort law, it now considered under the general principles of negligence
    • Zaluzna v Australian Safeway Stores
introduction public authorities and the rule of law
Introduction: Public Authorities and the Rule of Law
  • Applying the same rules of civil liability to the actions of public authorities or corporation:
    • The rationale: No legal or natural person is above the law
    • The difficulties: The nationalization and provision of public utilities and community facilities necessarily distinguish public corporations from ordinary citizens
some basic concepts feasance
Some Basic Concepts: ‘Feasance’
  • In tort law D is liable for a breach of duty towards P
  • The breach may take the form of an act (misfeasance) or an omission (non feasance)
  • However not every non-feasance provides a basis for liability:
    • Negligent omissions are actionable.
    • Mere/’neutral’ omissions are not actionable unless the D is under a pr-existing duty to act
some basic concepts powers and duties
Some Basic Concepts: Powers and Duties
  • Duty:
    • The obligation to act; the statutory provision/function is cast in mandatory terms
    • Once the content of the duty is determined, the question of breach is a question of fact
    • Breach duty attracts liability
basic concepts power
Basic Concepts: Power
  • Power:
    • The statutory function is cast in permissive terms
    • It confers on the power holder a choice to act in a particular way
    • The failure or refusal to exercise a choice may not necessarily be illegal.
    • The power holder has a freedom of choice to act/ The duty holder has an obligation to act
the planning operational dichotomy i
The Planning & Operational Dichotomy I
  • Planning decisions
    • Are based on the exercise of policy options or discretions
    • They may be dictated by social or economic considerations
    • not provide the basis for a duty
  • In general, a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints
the planning operational dichotomy ii
The Planning & Operational Dichotomy II
  • Operational decisions
    • The implementation of policy decisions
    • subject to the duty of care

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australian approaches to the liability of public authorities
Australian Approaches to the Liability of Public Authorities
  • Sutherland Shire Council v Heyman: Majority: Mason, Brennan & Deane JJ
    • in general no duty to exercise statutory powers
    • duty will arise where authority by its conduct places itself in a position where others rely on it to take care for their safety.
    • duty arises where D ought to foresee a) Pl. reasonably relies on D to perform function AND b) P will suffer damage if D fails.
australian approaches to the liability of public authorities72
Australian Approaches to the Liability of Public Authorities
  • Parramatta City Council v. Lutz: Maj of NSW Court of Appeal: Kirby P & McHugh JA
    • D held liable P because P had “generally relied” on council to exercise its statutory powers.
    • “I think… that this Court should adopt as a general rule of the common law the concept of general reliance
australian approaches to the liability of public authorities73
Australian Approaches to the Liability of Public Authorities
  • Pyrenees Shire Council v. Day Maj: Brennan, CJ, Gummow, Kirby, JJ
    • -rejected concept of General Reliance (too vague, uncertain, relies on “general expectations of community”)
    • (Only McHugh, Toohey, JJ approved and applied concept of General Reliance)
    • Brennan, CJ: No specific reliance by P here Duty arises where “Authority is empowered to control circumstances give rise to a risk and where a decision not to exercise power to avoid a risk would be irrational in that it would be against the purpose of the statute.
mis feasance and none feasance highway authorities
Mis-feasance and None-Feasance: Highway Authorities
  • The traditional position in Common Law:
    • Highway authorities owe no duty to road users to repair or keep in repair highways under their control and management.
    • Highway authorities owe no duty to road users to take positive steps to ensure that highways are safe for normal use.
      • It is well settled that no civil liability is incurred by a road authority by reason of any neglect on its part to construct, repair or maintain a road or other highway. Such a liability may, of course, be imposed by statute. But to do so a legislative intention must appear to impose an absolute, as distinguished from a discretionary, duty of repair and to confer a correlative private right. (per Dixon J in Buckle v Bayswater Road Board): See also Gorringe v. Transport Comm.
misfeasance and non feasance common law developments
Misfeasance and non-Feasance: Common Law Developments
  • Brodie v. Singleton Shire Council
  • Ghantous v. Hawkesbury City Council
the civil liability act nsw and public authorities
The Civil Liability Act (NSW) and Public Authorities

Part 5 of the Civil Liability Act (Sections 40 to 46)

  • Section 42 sets out the principles to determine duty of care exists or has been breached (ie. financial and other resources reasonably available, allocation of resources, broad range of its activities, and compliance with the general procedures and applicable standards)
part 5 liability of public other authorities
Part 5 Liability of Public & Other Authorities
  • Section 43: an act or omission by an authority does not constitute a breach of a statutory duty, unless the act or omission so was unreasonable in the circumstances that no authority having the functions in question could properly consider the act or omission to be a reasonable exercise of it function.
part 5 liability of public other authorities78
Part 5 Liability of Public & Other Authorities
  • Section 44: Removes the liability of public authorities for failure to exercise a regulatory function if the authority could not have been compelled to exercise the function under proceedings instituted by the Plaintiff.
  • Section 45: Restores the non-feasance protection for highway authorities taken away by the High Court in Brodie v Singleton Shire Council Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
45 special non feasance protection for roads authorities
45 Special non-feasance protection for 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 out 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.
s45 hwy immunity
S45 – Hwy Immunity
  • Porter v. Lachlan Shire Council [2006] NSWCA 126
  • The appellant suffered a fractured right ankle when he accidentally put his foot into a hole in the nature strip between the made footpath and the gutter of a street in Condobolin.
  • The primary judge held that, but for s45 of the Civil Liability Act 2002, he would have found the Council liable on the ground that it should have known about the hole; but he was not satisfied that the Council had actual knowledge of it.
s45 porter v lachlan shire council
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
  • Ms Roman was injured at night when she fell in a pothole half a metre wide and about four to five inches deep in Princes Street, McMahon’s Point on 16 October 2001. She brought proceedings against the Council, alleging that it had been negligent in failing to maintain the road by repairing the pothole. The Council defended the proceedings on the basis that it did not have actual knowledge of the pothole as required by s.45 of the CLA. The evidence established that Council street sweepers regularly swept the gutters in Princes Street in the vicinity of the subject hole. The street sweepers were instructed as part of their induction to identify hazards which needed attention and report them to their supervisor. Ms Roman argued at trial that the street sweepers’ actual knowledge of the pothole could be inferred from the regularity of those duties and from their obligation to identify hazards which needed attention. She also argued that their knowledge was attributable to the Council.
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. Per McColl JA (dissenting)
the law of torts84

THE LAW OF TORTS

Vicarious Liability

introduction personal liability
Introduction: Personal Liability
  • In tort law liability is generally personal; ie, liability is generally linked to a breach of one’s (own) duty
  • There are however instances where a party may be held liable for torts committed by another: vicarious relationship
what is vicarious liability
What is Vicarious Liability
  • Liability of D (usually the master/employer) for the torts of another (usually his or her servant/employee) although the master is without any blame or fault.
principal and agent relations
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
the employer employee master servant relations
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.
servants and independent contractors
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
who is a servant
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
who is a servant the control test
WHO IS A SERVANT?: THE CONTROL TEST
  • If the Master controls what the employee does and how it is done, then 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)
limits of the control test
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
the evidence of control
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
the totality of the relationship
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
in the course of employment
‘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
    • Morris v Martin
a frolic of his her own
‘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
  • Petrou v Hatzigeorgiou: Horseplay / practical jokes by employees may be within the course of employment
    • Case about vicarious liab. of partner for tort of another partner
    • Certain amount of horseplay conducive to maintaining good staff relations
    • Fact that act went outside permitted level of horseplay did not take it outside the course of the business