THE LAW OF TORTS

1. THE LAW OF TORTS Action on the Case for Indirect Injuries

2. INDIRECT INTENTIONAL INJURIES • ACTION ON THE CASE FOR PHYSICAL INJURIES OR NERVOUS SHOCK • ACTION ON THE CASE REFERS TO ACTIONS BASED ON INJURIES THAT ARE CAUSED INDIRECTLY OR CONSEQUENTIALLY

3. INDIRECT INTENTIONAL INJURIES: CASE LAW • Bird v Holbrook (trap set in garden) • D is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage (to P)

4. THE INTENTIONAL ACT • The intentional may be deliberate and preconceived(Bird v Holbrook ) • It may also be inferred or implied; the test for the inference is objective • Wilkinson v Downton • Janvier v Sweeney

5. Action on the Case for Indirect Intentional Harm: Elements • D is liable in an action on the case for damages for intentional acts which are meant to cause damage to P and which in fact cause damage to P • The elements of this tort: • The act must be intentional • It must be one calculated to cause harm/damage • It must in fact cause harm/actual damage • Where D intends no harm from his act but the harm caused is one that is reasonably foreseeable, D’s intention to cause the resulting harm can be imputed/implied

6. Nationwide News Pty Ltd v Naidu [2007] NSWCA 377 • Facts: Nationwide News’ Fire and Safety Officer subjected the plaintiff to humiliating and harassing treatment. The plaintiff suffered psychiatric injury in the form of Post Traumatic Stress D • Held: P successful. Spigelman CJ considered the intention required to establish a tort:

7. “Calculated” can mean: • Subjective, actual, conscious desire to bring about the specific result; or • What is likely, perhaps overwhelmingly likely to occur considered objectively • However the subjective intention is unlikely to be required because of the “imputed intention” in Wilkinson v Downton. • It may be enough to satisfy a test of “substantial certainty” • ‘Reckless indifference” will satisfy the intention • While there is no finding that the superior in this case actually intended to inflict the psychiatric damage, the nature and scale of his conduct was such as to constitute a recognised psychiatric injury as a natural and probable consequence of that course of conduct.

8. Carrier v Bonham [2002] • A mentally ill D stepped in front of a bus in a deliberate effort to commit suicide. Issue was whether D could be held liable for an ‘act calculated to cause harm’ • Held: the concept imported a purely objective test • See Carter v Walker. P claimed suffered shock when his mother called to inform him of an assault on her and his brother. He hurried to scene. He subsequently brought action under Wilkinson v Downtown . Action failed.

9. THE SCOPE OF THE RULE • The rule does not cover ‘pure’ mental stress or mere fright • The act must be reasonably capable of causing mental distress to a normal* person: • Bunyan v Jordan • Stevenson v Basham

10. The CLA and Intentional Torts • S3B:(1) The provisions of this Act do not apply to or in respect of civil liability (and awards of damages in those proceedings) as follows: • (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person-the whole Act except: • … • (ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death, and

11. The Exclusion of Intentional torts from the CLA • New South Wales v Ibbet: Assault and trespass to land: The restrictions on the award of exemplary and aggravated damages under the CLA held not to apply • Honda v NSW [2005]: wrongful arrest, malicious prosecution and false imprisonment by a police officer. Issue whether injury in s3B included only bodily injury. Held injury not limited to bodily injury • Zorom Enterprise v Zabow: P suffered head injuries as a result of an attack by a security guard employed by D. P sued D for vicarious liability. D argued that CLA restrictions applied because s3B only excluded only the intentional acts of the person who actually committed torts and not the D who was only vicariously liable. Argument was rejected

12. s3B: ‘In respect of ….’ • NSW v Bujdoso [2007] • P was attacked by inmates while in prison. He brought an action the D for their negligence. Since the conduct of the inmates was intentional, the issue was whether the provision of 3B applied to exclude the restrictions of the CLA in the award of damages. • The argument centred on the phrase ‘in respect of’ P argued that in respect of was broad and means that D’s liability arose in respect of the intentional act of the inmates and so s3B applied. The court rejected the argument. In respect of interpreted to refer to the person who did the act and the person whose negligence led to the doing of the act.

13. SELF DEFENCE-TRESPASS & CLA 2002 • s.3B(1)(a) Civil Liability Act (“CLA”) i.e. CLA does not apply to “intentional torts”, except Part 7 of the Act. • s.52 (2) CLA subjective/objective test i.e. subjective ("…believes…" & "…perceives…")/ objective ("…reasonable response…") test. • s.53(1)(a) & (b) CLA i.e. “and” = two limb test; "exceptional" and "harsh and unjust“ are not defined in the Act so s.34 of the Interpretation Act 1987. • s.54(1) & (2) CLA i.e. "Serious offence" and "offence" are criminal terms so reference should be made to the criminal law to confirm whether P's actions are covered by the provisions.

14. NEGLIGENCE INTRODUCTION

15. NEGLIGENCE AND FAULT IN TORTS FAULT NEGLIGENCE INTENTION TRESPASS NEGLIGENCE the action CARELESS

16. Donoghue v. Stevenson • Ginger beer-decomposing snail-P has shock-gastroenteritis • No privity of contract between P and D. Issue was whether D owed P a duty • Dicta of Lord Atkin • You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are closely and directly affected by my act that I ought reasonably to have them in mind to the acts or omissions

17. Negligence: The Elements Duty of care Negligence Breach Damage

18. NEGLIGENCE • Grant v Australian Knitting Mills (1936) • The application of the rule in D v S • a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care

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

20. Negligence: (Duty of Care) • The Duty of care is the obligation to avoid acts or omissions which are reasonably foreseeable to cause damage to another. • When does one owe a duty of care? • Whenever one is engaged in an act which he or she can reasonably foresee would be likely to injure another person, one owes a duty of care to that other person

21. General Principles: The CLA • 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 not insignificant, 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.

22. What is Reasonable Foreseeability? • Reasonable foreseeability presupposes an objective or a reasonable person’s standard • The reasonable person is an embodiment of community values and what the community expects of a responsible citizen • The concept allows us to evaluate D’s conduct not from his or her peculiar position, but from that of a reasonable person similarly placed • Reasonable foreseeability is a question of law

23. Reasonable Foreseeability: Case Law • Nova Mink v. Trans Canada Airlines [1951] (Air traffic noise causing minks to eat their young ones-No foreseeability) • United Novelty Co. v Daniels 42 So. 2nd 395 Miss 1949 • Palsgraf v. Long Island R.R. Co. (1928) (Railway guards helping falling passenger-fireworks explosion causing injury to plaintiff.-No foreseeability) • Chapman v. Hearse (1961) (Car accident-Dr. stops to help-gets killed by another vehicle-action against D who caused initial accident- Foreseeability upheld)

24. [5] DUTY CATEGORIES: To whom is duty owed? • One owes a duty to those so closely and directly affected by his/her conduct that she ought reasonably to have them in contemplation as being so affected when undertaking the conduct in question. • Examples: • Consumers, users of products and structures • Donoghue v Stevenson • Grant v Australian Kitting Mills • Bryan v Maloney • Road users • Bourhill v Young • Users and purchasers of premises etc. • Australian Safeway Stores v Zaluzna

25. DUTY CATEGORIES: To whom is the Duty Owed? • The unborn child: • There can be no justification for distinguishing between the rights… of a newly born infant returning home with his /her mother from hospital in a bassinet hidden from view on the back of a motor car being driven by his proud father and of a child en ventre sa mere whose mother is being driven by her anxious husband to the hospital on way to the labour ward to deliver such a child ( Per Gillard J in Watt v Rama) • Lynch v Lynch (1991) • But see the wrongful life cases • Waller v James 2002 • Harriton v Stephens[2002] NSWSC 461 • Edwards v Blomeley 2002 • www.lawlink.nsw.gov.au

26. 5.6 RESCUERS • There are two separate issues in rescue: • The ‘duty’ to rescue • The duty of care owed to the rescuer • There is no positive legal obligation in the common law to rescue • The law does not ‘cast a duty upon a man to go to the aid of another who is sin peril or distress, not caused by him • There may however exist a duty to rescue in master servant relationships or boat owner and guest relationships for instance • Horsley v Macleran (The Ogopogo) (1971) 22 DLR • One is only required to use reasonable care and skill ion the rescue

27. Unforeseeable Plaintiffs • In general the duty is owed to only the foreseeable plaintiff and not abnormal Plaintiffs. • Bourhill v Young [1943] AC 92 • Levi v Colgate-Palmolive Ltd • Haley v L.E.B. [1965] AC 778