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DUTY OF CARE
Also need to take policy issues; Administrative issues, Public interest issues,
the legislative factor, the balance of competing moral claims issue and the loss
distribution issue; into account.
High court now favours incremental approach, that duties should be established on
a case by case basis. �Justice Dawson in Hill v Vanerp
The risk that is foreseeable at the duty stage must only be a risk of some kind of
injury to a class of people that includes the plaintiff. � Chapman v Hearse
Summary
1. Need to reasonably foresee;
� Some kind of damage
� To some person in the same class as the plaintiff
2. Factors that can limit the application of duty;
� Proximity
� Policy
BREACH OF DUTY
Section 5B of the CLA sets out the test for breach of duty. The standard required
is that of a reasonable person (Blyth v Birmingham Waterworks Co) and is based on
the reasonable person at the time of the negligent conduct (E v Australian Red
Cross Society)
Section 5H of the CLA sets out that there is no liability for obvious risks
associated with dangerous recreational activities.
The objective test can be adjusted to consider age and experience (McHale v
Watson)
A �not insignificant risk� has a higher probability of occurrence than a risk that
is �not far-fetched or fanciful� (Wyong v Shirt) but a lower probability of
occurrence than a �substantial risk.� It is not a synonym for significant.
To determine the answer to test 3 you apply the negligence calculus from 5B(2) of
the CLA.
Proof of Breach is an evidentiary matter � if there is no evidence you can use Res
Ipsa Loquitor �The facts speak for themselves.�
The general type of damage must be foreseeable (more narrow than in the duty
phase.) Does not mean likely to occur but is just less general than in duty phase.
(Wyong Council v Shirt)
Burden of taking risk considers expense, difficulty and inconvenience of taking
precautions and the obvious nature of the risk. (Romeo v Conservation Commission
of NT)
Causation established in section 5C & 5D of the Civil Liability Act 2002 (WA). It
is a question of fact, not of law.
Factual Causation;
1. Was the defendant�s negligence a necessary condition of the occurrence of
the harm? (CLA 5C)
Onus of Proof
Factual Causation
Not liable if the harm would have happened anyway, �he would have died anyway�.
(Barnett v Chelsea & Kensington Hospital)
You have to foresee the specific kind of harm. (Wagon Mound 1). It was reasonably
foreseeable that the wharf could be damage by spilt oil but not reasonably
foreseeable that it would be damaged by fire.
You need to foresee the type of injury, how it occurs or the extent of damage is
irrelevant; the D is liable for the entire extent of the injury. (Hughes v Lord
Advocate)
Egg shell skull rule applies and includes family and cultural settings (Kavanagh v
Akhtar) Lady was injured and had to cut her hair as she could no longer maintain
it�husband did not approve, became abusive, she suffered from depression and they
separated.
Did the D�s negligence materially contribute to the risk of damage occurring?
(McGhee v National Coal Board) �dermatitis case, need to bridge the evidentiary
gap, no determinative medical evidence.
If P suffers a loss and then also suffers a further loss that builds upon the
first, the 2nd wrongdoer must take the P as he or she finds him.
If there is an intervening act between D�s negligence and the P�s injury, you can
argue there is a novus actus and the D will not be liable.
If the P did the act purely because of D�s negligence then the D caused the harm.
(Adelaide Chemical and Fertiliser Co v Carlyle) P�s husband treated injury from
work by applying a burn cream whi9ch gave him a disease and killed him. D was
liable for the death.
If something happens by coincidence the act is unrelated and the D cannot be said
to cause the accident. (Baker v Willoughby) P wouldn�t have been in the place he
was shot if the D had not been negligent.
Summary
P needs to establish;
1. Factual Causation
2. Scope of Liability Causation
Factual Causation;
1. Was the defendant�s negligence a necessary condition of the occurrence of
the harm
Scope of Liability
1. Is it appropriate in all circumstances for the extent of the tortfeasors
liability to extend to the harm so caused
2. In relation to remoteness if the kind/type of damage is reasonably
foreseeable the defendant is liable for the entire amount of the damage even if
the full extent is not foreseeable (including egg shell skull rule)
DEFENCES TO NELIGENCE
The CLA also assists the defendant in that the P is assumed to be aware of obvious
risks and there is no duty to warn of obvious risks except for the situations in
CLA 5O (2).
The P can rebut this presumption on the evidence and must prove on the balance of
probabilities that she was not aware of the risk.
Illegality
CONTRIBUTORY NEGLIGENCE
Standard of care is more lenient when applying to P because they are put in a
position of risk by D. (McLean v Tedman). Reasonable person is adjusted to age in
contributory negligence also (Kelly v Bega Valley City Council)
The court shall reduce the damages recoverable by the plaintiff to such an extent
as the Court thinks is just in accordance with the degree of negligence
attributable to the plaintiff. �Law Reform (Contributory Negligence and
Tortfeasors� Contribution) Act 1947 (WA)
Consider whether the P�s acts endangered any other person or whether the D�s acts
endangered any other person (Pennington v Norris)
Also need to establish causation. The P�s conduct must be causally related in 3
ways:
1. The P�s carelessness is the cause of the accident. (Griffith v Doolan)
2. The P�s conduct increased the risk of harm (Azzopardi v State Transport
Authority)
3. The P�s conduct aggravated the damage caused by the D�s negligence. (Eagles
v Orth aka the Seatbelt Case)
In March v Stramare the court found that although P�s injuries could have been
completely avoided if he took appropriate care, the D created the dangerous
situation in the first place. Liability apportioned 70% to P, 30% to D.
The P must have �full appreciation� of the risk. The D needs to establish that
(Smith v Baker, Canterbury Municipal Council v Taylor);
1. P had knowledge of the risk
2. Understood and appreciated the risk
3. Voluntarily accepted (consented to) that risk.
It is a subjective test. (Canterbury Municipal Council v Taylor)
Consent may be expressed or implied. If you are in a relationship where you owe
someone a duty of care you cannot use an exclusion clause to disclaim liability.
There is no duty of care for omissions, only from actions, except in some
exceptional circumstances.
Some circumstances may arise where the defendant may be required to take positive
action for others safety, such as:
1. Existence of a special relationship between P and D
2. Existence of a special relationship between D and another that requires D to
take positive action for the safety of others.
Moral obligation (parent and child) does not automatically translate into a legal
obligation. The duty only arises in specific situations. (Hahn v Conley)
Occupier�s liability: The D holds a duty of care under the ordinary principles of
negligence to the P. (Australian Safeway Stores v Zaluzna)
D owes a duty of care to rescuer if it is the very likely thing to result from the
D�s negligence.
Duty of care is owed to a rescuer who suffers nervous shock. (Chadwick v British
Transport)
No duty to rescue from harm caused by another (Hargrave v Goldman)
Protection for good Samaritans if the act is not done recklessly (s 5AD of the
CLA)
STATUTORY AUTHORITIES
With Statutory Authorities, courts can impose an obligation to act if, under the
statute, it states that a body must do X, and fails to do X, or does X recklessly.
(Sutherland Shire Council v Heyman)
Policy decisions are not open to liability however operational decisions are.
(Sutherland Shire Council v Heyman)
Reliance must be specific reliance not general reliance, ie. the specific P.
(Pyrenees v Day) rejects general reliance.
Crimmins Test;
1. Is there specific reliance
2. Is D under control of P
3. Is P vulnerable to D�s control
4. Does authority have access to knowledge P doesn�t.
Section S5W of the CLA deals with statutory authorities. S 5X deals with the
policy defence. S 5Z reintroduces the highway rule.
For non-feasance the power of the authority must not be too general. (Graham
Barclay Oysters v Ryan)
NERVOUS SHOCK
You can only claim nervous shock when this is the only damage suffered. You cannot
claim it if it is �consequential psychiatric injury� from normal damages.
The illness has to be a recognised psychiatric illness. (Hinz v Berry and CLA 5S)
What constitutes a recognised psychiatric illness will be decided by medical
evidence on a case by case basis. (Mount Isa Mines v Pusey)
Shock itself is not enough, nor is grief, sorrow or any normal emotional reaction.
Needs to be damage, a recognised psychiatric illness. The defendant needs to
foresee that kind of damage as part of the Lord Atkin Neighbour principle. (Mount
Isa Mines v Pusey)
Relevant matters for the court to consider in establishing nervous shock are;
1. Whether or not the mental harm was suffered as the result of a sudden shock
2. Whether the P witnessed, at the scene, a person being killed, injured or put
in peril
3. The nature of the relationship between the P and any person killed, injured
or put in peril
4. Whether or not there was a pre-existing relationship between the P and the
D.
It is enough that the P has a direct perception of some of the events which make
up the accident, including in the aftermath. (Benson v Lee and Jaensch v Coffey)
Aftermath does not include television and radio broadcasting, as these are edited
and broadcasting standards mean that particularly disturbing images are removed.
Finding a body hours after in the morgue was not in the aftermath. (Alcock)
In White v Chief Constable of South Yorkshire, police were not able to recover
from their employee for psychiatric injury. Being a rescuer does not automatically
give rise to a duty of care. To recover from being a rescuer you must fear for
your own safety, being exposed to physical danger.
Egg-shell skull rule does not apply if the injury was not foreseeable. It does
apply if the injury was foreseeable. (Tame v NSW)
Still need to go through basic CLA principles, Duty, Breach and Causation.
No duty if a P can self protect but doesn�t (Reynolds v Katoomba RSL club)
DEFECTIVE STRUCTURES
Pure economic loss arises �where damage consists of a defect in the structure,
itself arising from inadequate design or building, so that the value of the
structure is diminished and may require remediation.� (De Pasquale Bros. Pty Ltd v
Cavanagh)
Duty from Bryan v Malone does not extend to situations where defect was apparent
upon purchase if sufficient inspection had occurred. (Woollahra Council v Sved)
�In this case a duty was held on the statutory authority who had failed to produce
a report on the inspection.
Duty of care in Defective Structure cases based on; (from Bryan v Maloney)
1. Assumption of responsibility
2. Know reliance
3. Proximity
Also need to look at these issues
1. Autonomy
2. Indeterminate liability
3. Some criteria satisfied other than reasonable foreseeability
4. Vulnerability
The statutory regime which now exists nationally (The Building Code of Australia)
requires the issuing of a certificate from a practising structural engineer
�certifying that the building � will be structurally sound �� for legal occupation
of the building.
Council must assume responsibility for reliance for example by informing the P it
will carry out the inspection.
Brodie v Singleton Shire Council; Bridge collapsed due to rot and white ants while
truck was driving over it. Highway rule was applied; no duty for non-feasance. The
factor of control is of fundamental importance.
�There will be a breach of duty where an authority fails to take reasonable steps
to inspect for such dangers as reasonably might be expected or known to arise, or
of which the authority has been informed or made aware, and, if they are found,
fails to take reasonable steps to correct them.� (Brodie v Singleton Shire
Council)
NEGLIGENT MISSTATEMENT
Hedley Byrne v Heller
Hedley Byrne factors;
1. Person making the statement must be responsible for the statement
2. This undertaking can be expressed or implied
3. Person seeking advice must rely on it
4. This reliance must be reasonable with a reasonable justification
5. Person giving advice knew or ought to have known of reliance
All of these factors must be establish in finding a duty of care.
In Shaddock the council was the only body that had the information, it was
reasonable to rely on the information or the absence of information and therefore
the D owed a duty of care to the P.
San Sebastian
Mass published plans are not finite, definitive or permanent, it was a draft. No
one had made a statement or representation. There was no reasonable reliance.
(Factor 1, 4 and 5 of Hedley Byrne not satisfied.)
The standard of care required is that of the ordinary skilled person exercising
and professing to have that special skill.� (Heydon v NRMA)
Medical Negligence
Law imposes a duty of care but the standard of care is determined on medical
principles.
A doctor has a duty to warn a patient of a material risk inherent in the proposed
treatment. (Rogers v Whitaker)
Causation factors;
1. The remoteness of the risk
2. A patient�s desire for the treatment
3. Previous and later procedures undertaken
4. Degree of faith in the medical practitioner
5. The knowledge of the patient
6. The need for treatment and alternatives available
�Any statement made by the person after suffering the harm about what he or she
would have done is inadmissible except to the extent (if any) that the statement
is against his or her interest.� (Rosenberg v Percival)
Wrongful birth case. Parents were allowed recovery from negligent gynecologist.
(Cattanach v Melchior)
Now CLA says that recovery is not allowed from pure economic loss suffered from
the ordinary costs associated with rearing a child.
VICARIOUS LIABILITY
Involves the law holding one person responsible and liable for the misconduct of
another
Acting on a �frolic�:
Employer will not be liable for employee acting on a frolic of his own. -Joel v
Morison
In Hollis v Vabu the couriers were independent contractors as they had to supply
and maintain their own vehicles, and their own equipment apart from uniforms. On
appeal found that this was a employer-employee relationship.
Non-Delegable Duties
If you have a duty of care in certain activities you cannor delegate it to an
independent contractor.
The employer may be liable even though the independent contractor exercised
reasonable care in doing what he was employed to do, because the employer
authorized the running of the risk and the employer may be in breach of his own
duty for failing to take necessary steps to avoid the risk which he authorized. -
Northern Sandblasting Pty Ltd v Harris
NUISANCE
With public nuisance the plaintiff does not need to have property rights over land
to sue as long as he/she has suffered �particular damage�.
�The forms of this are innumerable. Noise, smells, pollution of air or water, are
the most usual instances, but there are many others. The two main heads are injury
to property and interference with personal comfort. The escape of fumes which kill
vegetation and cattle is an illustration of the first, and excessive tolling of
church bells is the second.� - Munro v Southern Dairies Ltd
A person with rights in or over the land in question can sue for nuisance - Hunter
v Canary Wharf Ltd
In Stockwell v Victoria [2001] VSC 497 (17 Dec. 2001) Gillard J applied Hunter v
Canary Wharf to hold that only the owner, tenant or person with exclusive
possession had title to sue in private nuisance.
Court looks at the skill, knowledge and financial resources of the defendant when
considering reasonable steps to abate the nuisance. - Hargrave v Goldman
An occupier is not prima facie responsible for a nuisance created without his
knowledge and consent. - Montana Hotels Pty Ltd v Fasson
Trespass to Land
ASSAULT
�An assault is an act which causes another person to apprehend the infliction of
immediate, unlawful force on his person..� - Collins v Wilcock
Elements of an Assault;
1. Intention to cause fear through a positive act
2. Defendant�s ability to apply force amounting to a direct physical threat
3. Knowledge on the part of the plaintiff � must be reasonable apprehension of
imminent harmful contact
� As involves a reasonable expectation of infliction of force some knowledge
grounding the expectation is necessary (see Police v Greaves [1964] NZLR 295)
BATTERY
Definition: Battery is a direct act by the defendant causing bodily contact with
the plaintiff without his or her consent. OR,
Battery is the voluntary application of direct force to the person of another,
whether done intentionally or merely negligently.
Elements of Battery;
1. A positive act
2. A direct act
3. The action must be intentional or negligent
4. Lack of consent
Sufficient to prove that D only intended to frighten the plaintiff but in a manner
fraught with serious risk of bodily injury - Gray v Barr
Consent
1. The consent must be real and freely given with respect to the tortuous act
itself; and,
2. Any consent given must not be exceeded.
(For medical procedures you need �informed� consent � informed in broad terms of
the nature of the physical contact )
�The evidence is only that they might constitute a hazard in the event of a
further pregnancy. That might go to the quantum of damages but it does not [�]
justify a trespass to the person without her consent.�
�No amount of professional skill can justify the substitution of the will of the
surgeon for that of the patient.� - Murray v McMurchy
FALSE IMPRISONMENT
Symes v Mahon - Identity of P mistaken for another, police officer forced him to
come to town expecting he was another. �On these facts the jury might reasonably
hold � that the plaintiff was wholly deprived of his liberty by being required to
enter the train, although he had paid for his own fare. I think that they might
also hold that the restraint continued throughout the journey, for although the
plaintiff might have got out at an intermediate station, the defendant was close
at hand and might have prevented him from escaping.�
Balmain New Ferry Co Ltd v Robertson - As the plaintiff was free to leave by water
I think there was no imprisonment.
Onus of proving that imprisonment was lawful is born by the defendant (Carnegie V
State of Victoria and Myer Stores V Soo): �The gist of the action for false
imprisonment is the mere imprisonment. As a result the plaintiff carries the
burden of establishing no more than imprisonment.�
Necessity
Elements of necessity;
1. The action must be necessary to prevent a real or imminent danger (Proudman
v Allen)
2. The danger must outweigh the illegal activity undertaken to obviate the
danger (Murray v McMurchy)
3. There must be no reasonable legal alternatives �(London Borough of Suffolk v
Williams)
Contributory Negligence
Defence to Negligent trespass but not intentional trespass. - Horkin v North
Melbourne Football Club
Self-Defence
Where defendant�s acts are necessary and justified to prevent the threat of harm
to him or herself.
Provocation
Arises when it is alleged that the acts of the plaintiff induced the defendant to
lose self-control
At common law provocation is not a defence to battery and assault: see Fontin v
Katapodis (1962) 108 CLR 177. At common law provocation is a matter which should
be taken into account in assessing damages.
Inevitable Accident
1. In non-highway trespass in Australia, the defendant can raise absence of
fault as a defence and proof of an inevitable accident will demonstrate the
absence of such fault.
2. See McHale v Watson where child defendant was held to have thrown the dart
without intention or negligence.
3. However, note that D�s lack of care in causing an accident will mean it is
not inevitable.