laws1061 summary

AREAS: Sm68lesson9 WHOLE THING AGAIN What is Tort Law? The law of torts concerns the obligations of persons living in a crowded society to respect the safety, property and personality of their neighbours o This respect occurs both as a priori manner As a matter of cause and effect o As well as a duty to compensate for wrongfully caused harm Historical Overview The Role of Tort Law Compensatory function: o Many see tort law as a way of compensating those people who are inured by a wrong o However, the compensatory function of tort law is still inadequate in certain cases: 1. For example in cases of catastrophic loss such as quadriplegic injuries, it is almost impossible to determine the amount of compensation that should be given a. Since tort law operates on a lump-sum compensatory payment, many plaintiffs have been awarded far too much money or worse yet, far too little to survive 2. Tort law also only compensates those plaintiffs who can prove that someone else caused the harm a. This means that a vast majority of people who are injured as a consequence of activities in which no one was to blame are left without compensation i. This has led to the suggestion that a nofault compensation scheme should be introduced Deterrent function, law and economics and insurance: o Deterrence theory argues that if the wrongdoer is punished for an accident, he or she will try to avoid such accidents in the future o There is little supportive evidence that tort law has a strong deterrence function o For medical injuries, the Harvard Medical Practice Study Group found no evidence that the number of medical accidents were reduced by higher rates of litigation

o INSURANCE: It can be argued that insurance prevents deterrence because the person at fault does not pay for the wrong Instead, it is the insurance company paying However, there are two counter arguments to this theory: There is a deterrent effect from the bad publicity and blame for causing an accident Increased insurance premiums may also deter people from accidents Insurance can also be seen to be remediate the action of negligence It is often seen as unfair that accidental harm is so harshly blamed upon the perpetrator Insurance may equalize the level of proportionality between the wrongful act and the harm done while the injured party still gets compensated Corrective Justice: o Corrective justice is the theory that the basis of tort law is to protect moral rights o It is argued that individuals in society enjoy certain moral rights, but these rights mean that they in turn have obligations to respect the rights of others o Therefore when it can be proved that a person is causally responsible for an accident, morally, a proportion of the loss suffered by the injured should be shifted to the person who caused the damage Distributive Justice: o Another line of thought is that tort law serves of a way of distributing goods, risks and losses For example, a decision by a court to punish the plaintiff distributes the loss towards the plaintiff o Therefore, compensation by tort law is intended to place the injured back in the position they would have been had the accident not happened However this implies that richer people get greater levels of compensation Feminist Theory of Tort Law: o The Feminist theory is based on the principle that the law was made from the point of view of males This is because almost all of the judges in the past have been males o Therefore, when the law is made from the point of one group, the other groups(s) are disadvantaged and the law does not operate fairly on them o The same argument could be made for any minority group Tort Law Reform: Statute law has made significant changes to tort law recently Of particular importance is the Civil Liability Act (2002) (NSW) 2

 The Australian judiciary was originally viewed as being too defendantorientated, however, over the last 25 years, it had become apparent, that the judiciary had now become too plaintiff orientated o This was because the scope of the tort of negligence had been stretched further so that a greater number of plaintiffs could claim for a greater number of acts o As a result, a number of recent cases have been decided that would have been decided differently only a few years ago Of particular ambiguity is the area of psychiatric injury since determining psychiatric injury has a wide element of discretion The increase in the number of cases being awarded to the plaintiffs and the dramatic rise in the number of possible avenues that plaintiffs can sue had led to a dramatic rise in the cost of insurance premiums o This had a number of negative social and economic effects such as the cancellation of Christmas carols, the closure of playgrounds and horse riding schools etc. o Clearly, the current system was socially undesirable and inefficient Therefore in 2002 the NSW parliament rolled out a number of legislative changes o Spigelman CJ stated that the intention behind the changes was to restore the sense of fairness to the system which had been attenuated Tort Law and Human Rights: Australia does not have a national Bill of Rights Torts is supposed to be the entity that protects the integrity of the person, economic integrity, their property and their reputation and therefore human rights Introduction to Negligence: Negligence has three well defined elements that must be present for a negligence action to be successful: o The defendant must have owed the plaintiff a duty of care o The duty must have been breached o The breach must have caused damage to the plaintiff DONOGHUE V STEVENSON This was the introduction of the tort of negligence Established that you must o Take reasonable care to avoid acts (or omissions) which you can reasonable foresee may cause injury to your neighbour Your neighbour is persons who are closely and directly affect by your act that you ought to reasonably have them in contemplation when you commit the act or omission In the case, it was decided that the manufacturer of a product which sells as a final product (i.e. no alterations between him and the consumer) 3

must take reasonable care to prepare the product so that consumption of the product will not result in injury to the consumer CHAPMAN V HEARSE Overview: man thrown from care after hitting another car negligently, someone tries to help but is hit and dies This case helped to define what is reasonably foreseeable Main Issue: did Chapman, the man thrown from the car after negligently hitting another car have a duty of care towards Dr. Cherry? (The man who died) o Chapman argued that he owed no duty since none of the events that eventuated in Dr. Cherrys death were reasonably foreseeable o However, the court decided that it was not necessary for the plaintiff to show that the events that led to injury after the defendants initial careless/negligent act (i.e. the accident) were reasonably foreseeable Therefore it was irrelevant as to whether the circumstances after Chapmans initial crash that led to the death of Dr. Cherry were reasonably foreseeable o Additionally, it was reasonably foreseeable that after a collision, other people such as Dr. Cherry may attend to the injured as a moral obligation o Therefore a duty of care was owed to Dr. Cherry The Unforeseeable Plaintiff: In certain cases, it is impossible to foresee harm to a particular plaintiff and therefore the injury will go uncompensated An example is Palsgraf v Long Island R R Co where a firework was set off due to a package being dropped that resulted in an injury o In this case, the plaintiff and the injury received was unforeseeable so no duty of care occurred Reasonable foreseeability is the CENTRAL ELEMENT IN THE TEST FOR A DUTY OF CARE Psychiatric Harm: The Concept of Psychiatric Harm: o Psychiatric harm in the legal domain is often referred to as nervous shock o When somebody is physically injured, they may later a develop psychiatric illness In this situation, they may claim damages for both the physical injury AND the consequential or parasitic mental harm o However, another situation arises where the person has suffered no physical injury however they still suffer from a psychiatric injury This injury has arisen as a consequence of the negligence on someone elses part This type of mental harm is pure psychiatric harm 4

o In order to successfully bring an action in negligence for nervous shock, the plaintiff must prove that it was reasonably foreseeable that the defendants actions would cause psychiatric harm to the plaintiff Duty to Avoid Inflicting Psychiatric Harm: o Historically, there was intense suspicion over psychiatric harm and it was believed that it could easily be faked and that it was no real harm o Due to these suspicions, a number of rules must be satisfied in order for a psychiatric harm case to be successful TAME V NSW & ANNETTS V AUSTRALIAN STATIONS TAME: Tame was suing for psychiatric injury after a police officer had mistakenly accused her of drink driving Main Issue: whether the police officer owed Ms. Tame a duty of care to take reasonable care to avoid causing her psychiatric injury o In order to prove this, it had to be reasonably foreseeable for the officer to suspect that an error would cause Ms. Tame psychiatric injury o The Court decided that it was NOT reasonably foreseeable for him to expect that his mistake carried a risk of psychiatric harm ANNETS: The Annetts were suing after they suffered nervous shock after hearing news that their son had died in the desert Main Issue: Whether a plaintiff could successfully claim when they did not directly witness the accident. Also, whether the plaintiffs could be successful even though their psychiatric illness was not a result of SUDDEN shock o The Court argued against the previously held salient features that were required to prove a nervous shock case The benchmark for establishing liability had to be a person of normal fortitude The requirement that the harm had to be caused by sudden shock The plaintiff had to directly perceive the distressing phenomenon or its immediate aftermath o The Court dismissed all three requirements since such a rigid system of categories was seen to impede tort law as a coherent body of law o They also took into account that the Annetts were assured that their son would be supervised at all times This established a duty of care towards the wellbeing of the son o Therefore the plaintiffs were in breach of their duty of care since it was reasonably foreseeable that the Annetts would suffer psychiatric harm if their son was injured

NOTE THAT THE CIVIL LIABILITY ACT REVERSED THE COURTS NORMAL FORTITUDE DECISION IN NSW

KOEHLER V CEREBOS KOEHLER Despite her complaints, the company ignored her and they owed her a duty of care to provide working conditions that didnt endanger her health o OH&S Act o Industrial Law Her complaints made it clear that it was reasonably foreseeable that she could develop harm CEREBOS That Koehler accepted the terms of the contract and therefore accepted the working conditions and the duties that caused injury It was not reasonably foreseeable for the company to foresee her mental harm since she did not specifically complain about her health COURT Main Issue: was it reasonably foreseeable for the defendant to foresee psychiatric injury? Floodgates Argument: if she is allowed to recover, then a lot of other people who are under pressure to perform under a contract can sue if they contract a mental health injury Also, Cerebos had no reason to suspect that the Koehler was under and risk of psychiatric injury o None of her complaints even implied psychiatric injury

READ THE CLA CAREFULLY WICKS/SHEEHAN V STATE RAIL

WICKS/SHEEHAN During the rescue process, they suffered mental shock from witnessing the injuries of the victims of the crash State Rail admitted that it was their negligence that was the cause of the crash They stated that they witnessed people in peril because some of the power lines were still falling down and endangering the lives of others o Also people were still in a position of danger and therefore were still in peril Therefore the event was still ongoing State Rail should be been able to foresee that the rescuers may have suffered from mental shock STATE RAIL They did not witness the actual accident occur and therefore they were not entitled to sue under s 30(2)(a) There was also too many victims not one particular victim and one of the features needed to be proved was reasonable foreseeability of harm to a particular person/victim COURT Agreed that rescuers still witnessed people in peril and the suffering was still ongoing and therefore Wicks/Sheehan were in fact witnessing the event despite not seeing the train fall of the tracks o Therefore the negligence of State Rail did not end when the carriages came to rest s 30(2)(a) Therefore State Rail did owe a duty of care to Wicks/Sheehan and should have foreseen that they would suffer mental shocks WHAT CONSTITUTES WITNESSING AT THE SCENE ANY QUESTION REGARDING MENTAL HEALTH MUST REFER TO WICKS/SHEEN

ISSUE:

Economic Loss: There are two types of economic loss: o Consequential or Parasitic economic loss refers to economic loss which is consequential to physical/property harm For example, if someone loses income after the building in which their business was located is burnt down, they have suffered consequential economic loss o Pure Economic Loss refers to economic loss that occurs in the absence of physical or property damage Usually this occurs as a breach of contract and therefore is covered in contracts rather than torts However, there are still cases where it is part of torts

Pure Economic Loss: Generally, it is difficult to successfully litigate for pure economic loss The reasons for this are: o Pure economic loss is a natural element of business since companies will inflict pure economic loss to competing companies when they take market share from that company o There is an indeter o minacy of burden (i.e. floodgates) since one thoughtless blunder/mistake could lead to countless defendants being able to sue for an indeterminate amount of money and an indeterminate amount of time for the one act o It is not easy to prove (unlike physical injury) that harm was directly inflicted by the one plaintiff Pure Economic Loss Caused By NEGLIGENT WORDS: o Hedley Bryne v Heller decided that there could be a duty to take care to prevent pure economic loss due to negligent words BUT certain conditions had to be met for the action to be successful: ESANDA FINANCE V PEAT MARWICK HUNGERFORDS Esanda lent money to Excel after reviewing the financial position of Excel based on the audit report by PMH, however Excel was soon placed in receivership causing pure economic loss to Esanda A case defining NEGLIGENT MISTATEMENT Main Issue: did PMH owe Esanda and other potential investors a duty of care when publishing their audit? Therefore was it reasonably foreseeable that an investor would rely on their report for investment decisions? o The court made it clear that mere foreseeability of harm does not give rise to a duty of care where the harm suffered is pure economic loss This is because this would extend liability beyond reasonable measures (i.e. floodgates would open) and any investor who lost money using PMHs reports would be able to sue They also argued that financial loss is an unavoidable element of business and commercial competition o In order for a pure economic loss case to be successful, there has to be a relationship of proximity between the parties. In order to establish this relationship the following salient features had to be satisfied: The main feature is RELIANCE: It is reasonable to realize that the information being given is being relied upon (1) and accepted (2) by the person receiving the information and that it is reasonably foreseeable that the representee will suffer economic loss if the information should turn out to be incorrect (3)

Information given does NOT necessarily have to expressly sought o However it does help to prove reliance o Reliance may be proved in a number of ways: The person giving the information purports to possess a certain skill or knowledge in the area of information The person giving information may warrant the correctness or assume responsibility for the correctness of the information The person giving information may invite the recipient to act on the basis of the information The person giving information may have an interest in the recipient acting in a particular way o It was concluded that PMH did not make the reports to induce investors to act upon the information given Therefore there was a lack of reasonableness for Esanda to place reliance on the information Therefore there was no relationship of proximity and no duty of care Giving advice is significant part of professions such as Banking, Accounting and in Law o The Professional Standards Act has been enacted to limit liability for the members of these associations in certain circumstances HEDLEY BRYNE & CO V HELLER & PARTNERS Hedley had an advertising contract in Easipower and they wanted confirmation that Easipower was financially stable. Their bank obtained advice twice from Heller & Partners and relayed it to Hedley. However, the advice was incorrect and Easipower went into liquidation, causing pure economic loss for Hedley Main Issue: whether Heller & Partners owed Hedley a duty of care when giving their advice o The court distinguished the law regarding negligent acts from negligent words This is because negligent acts only cause one accident whereas words have the potential to be relayed to various people, thereby causing multiple incidents o The court decided that the bank had issued a disclaimer when giving their advice that they gave the advice with no responsibility on their part 9

This essentially cleared them of any duty of care to Hedley

Pure Economic Loss Caused By A NEGLIGENT ACT: The courts were even more reluctant to allow litigants to sue for a negligent act than for negligent words o This is because it is harder to place limiting factors on acts such as reliance CALTEX OIL V THE DREDGE A dredge passed over a pipeline that was used by Caltex to transfer oil despite being given maps and instructions to avoid the pipeline. The damage caused Caltex extra costs of transporting the oil through other means. Main Issue: did the dredgers owe Caltex a duty of care to not cause damage to their pipeline? o The court argued that mere foreseeability of economic loss is not enough to make an action recoverable Certain salient features must be satisfied o In this case, the dredgers were specifically given drawings for the purpose of avoiding the pipeline but they still damaged it o Also, the defendants ought to have known that damage to the pipelines would likely cause economic loss to those who rely upon them (Caltex) o The combination of these two factors meant that the defendants DID owe Caltex a duty of care and they breached it by damaging the pipelines PERRE V APAND The Perre brothers owned land in SA on which they grew potatoes. They exported these to WA. However, WA prohibited potatoes grown on land affected by the disease bacterial wilt and land within a certain distance from the affected land. Apand supplied infected seeds to the Sparnons land which was within the prohibited distance from the Perres land. They therefore suffered pure economic loss. The Perres land included Warruga Farms (where they grew and processed potatoes), Rangara (growing) and the Perres vineyards (processing). The judgment by Mc Hugh J consisted of a number of issues that were considered:

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1. Duty of Care and Proximity The exclusionary rule has prevented damages for being claimed from pure economic loss in the past o This was because judges stated that that pure economic loss involves a mere transfer of wealth whereas losses from other forms of negligence involve a net social loss However, in exceptional cases, the concept of PROXIMITY was traditionally used to determine a duty of care o However, proximity is too hard to define and is regarded as a category of indeterminate reference Therefore, something more needs to be satisfied in order for economic loss to be claimed However, proximity can still be regarded as a FACTOR in determining a duty of care BUT we cant return to the exclusionary rule since it is not socially optimal and just The need for predictability is important but it shouldnt stop us from evolving the law and we shouldnt implement a set of bright line rules for the sake of certainty o A unifying principle should be instead be developed incrementally on a case by case basis in order to make the law eventually predictable 2. The Reasons for Denying or Imposing a Duty of Care in Cases of Pure Economic Loss A) Indeterminacy when it is impossible to determine the number of claims that might be brought against a defendant or the type of claims that could be brought (in an indeterminate amount for an indeterminate time to an indeterminate class), generally, the law will NOT impose a duty of care on the defendant o This is a prevalent issue in pure economic loss since there are a large number of possible litigants affected adversely from one single act o Therefore, NO duty of care is owed to victims of the ripple effect of the initial act o Only those who were directly affected are owed a duty of care B) Burdens on the Autonomy of individuals The common law has sought to interfere with the autonomy of individuals only to the extent necessary for the maintenance of society o Therefore, it is generally accepted that a person who is genuinely protecting his/her interests will not be held liable for the effects of his/her conduct on the economic interests of others This is in order to protect the level of legal competition within the economy However, acts involving deceit, duress or those prohibited by laws are not justifiable as pursuit of ones interests But a reach of a law does NOT automatically mean that the defendant owes a liability to those affected by the breach

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 C) Vulnerability refers to the inability of the defendant to protect themselves from the risk of harm through any means o This includes the ability to obtain contractual warranties o Some of the main indicators of vulnerability include: Reliance Assumption of responsibility The defendants control over the plaintiffs right, interest or expectation o According to McHugh J insurance is not relevant to the issue of vulnerability D) Knowledge and Reasonable Foreseeability Knowledge possessed by the defendant, either actual or constructive, that his/her acts may cause the plaintiff harm MUST be present for a case to be successful Apand DID Owe a Duty of Care Apand DID owe a duty of care to the growers due to the satisfaction of the factors above BUT not to the processors o Since Apand could not foresee the number of other people who may be affected by their actions through a ripple effect o The processors were not owed a duty of a care since they were not an ascertainable class Special Defendants (Public Authorities): In certain cases, the defendants may belong to special classes This means that different salient features need to be proven in order for a duty of care to be owed Public authorities are a form of special defendants o These are bodies set up for a public purpose o These bodies must exercise their powers in the public interest They may be liable if they use their powers outside the public interest CRIMMINS V STEVEDORING INDUSTRY FINANCE COMMITTEE Crimmins was employed as a waterside worker. The Stevedoring Industry Finance Committee regulated the Stevedoring operations on the port that Crimmins worked. During his employment, Crimmins was exposed to asbestos and he was diagnosed with mesothelioma due to this. He brought an action against SIFC. The Authority directed him to places of work where there were risks of injury of which the authority was, or ought to have been, aware and in respect of which, the authority knew or ought to have known that the worker was specially vulnerable. The workers vulnerability arose as a result of the casual nature of his employment and his obligation to obey the authoritys directions as to where he worked. The authoritys role was more than supervisory. The Authority allocated the waterside workers for work in accordance with the needs of the various employers the workers having no say in the allocation. The Authority also had certain powers of discipline over the workers 12

including the power in certain circumstances to cancel or suspend the workers registration However, courts have been cautious in imposing affirmative common law duties of care on statutory authorities o Mason J 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. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness. i.e. the POLICY/OPERATIONAL distinction o His honour set out 6 steps that tested the Authoritys liability in this matter: 1. Reasonable Foreseeability of injury/harm 2. Did the defendant have the power to prevent/protect a specific class (of which the plaintiff is a part) from harm? The plaintiff must belong to a specific class 3. Was the plaintiff vulnerable? (i.e. could not adequately safeguard him/herself from harm) 4. Did the defendant know or ought to have known of the risk of harm of the specific class if it did not exercise its powers? Constructive knowledge is not normally enough to answer affirmatively to this question unless the defendant authority had an obligation to seek out the knowledge 5. Would the imposition of a duty upon the defendant place liability upon the defendants exercise of core policymaking or quasi-legislative functions? 6. Are there any other reasons in policy to deny the existence of a duty of care? Mc Hugh stated that the strongest indication that a duty of care should be owed is the fact that the Authority directed the workers where to work and could discipline them for any wrongdoings o This implied that they had CONTROL/DIRECTION over the workers and so a duty of care should arise However, the it is stated that no common law duty of care can be imposed on a statutory authority of to do so is either forbidden by the relevant Act or is inconsistent with the statutory scheme o In this case there were no such contradictions Therefore the Authority DID owe a duty of care to the plaintiff

GRAHAM BARCLAY OYSTERS V RYAN Mr. Ryan had consumed oysters farmed by Graham Barclay Oysters in Wallis Lake. The oysters were contaminated as a result of heavy rainfall leading to run-off into the lake and consequentially, Mr. Ryan contracted

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Hepatitis A. Mr. Ryan took a case against the Barclay Company, the local Council and the State of NSW. THE COUNCIL o Mr. Ryan claimed that the Council owed a duty of care to regularly monitor and test the waters for contaminants and upon this examination, exercise its powers set out under s 124 and s 678 of the Clean Waters Act 1970 to remedy the pollution o They argued that the deteriorating sewage pipes caused the contamination and that the council was the only party with knowledge of the deterioration and the Council had the statutory powers to redress that deterioration. However, the coexistence of knowledge of a risk and the power to avert it is NOT ENOUGH TO GIVE A DUTY OF CARE without more Otherwise, any statutory body that perceives a risk will automatically owe a duty of care to redress that risk o It would be unfair to impose this liability upon the state, particularly in a matter of commercial self-interest (the Oyster business) especially since the Oyster growers could avert this risk themselves o In order for the appeal to be successful, the following salient features had to be examined: Control Vulnerability Consistency with the relevant statute o In this case CONTROL was deemed the most important since if a defendants control over the relevant risk of harm is remote, it does not give rise to a duty of care. The council had no control over the DIRECT source of harm (i.e. the oysters) Although it did have the power to monitor the physical environment of the oyster area, this was too remote from the source of actual harm and it therefore did not closely and directly affect consumers o There were too many intervening levels of decision-making This is particularly the case when the oyster farmers themselves were NOT VULNERABLE because they could take steps to monitor the safety of the oysters themselves THE STATE o Ryan argued that the state had an obligation to conduct sanitary surveys to identify and remedy pollution and if pollution was found, to close the affected fisheries

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o The State did have powers under the Clean Waters Act 1970 to carry out sanitary surveys and forced oyster growers to prove that the water that their oysters were grown in was safe enough to harvest through a survey o However, this program had not been introduced at the time at Wallis Lake This was due to budgetary concerns Therefore, the failure of the State to conduct a sanitary survey on the Wallis Lake region was just a continued adherence to a previously settled policy Therefore there was no duty of care owed by the state to the region AMACA V NSW Mr. Hay was an employee at a power station for the Electricity Commission of NSW. He was exposed to asbestos and contracted mesothelioma due to this. The State had the power to inspect work sites under the Scaffolding and Lifts Act 1912 and give directions to prevent accidents and ensure safety. In 1958, a report stated that asbestos levels in a particular area of the site had unsafe levels. Mr. Hay sued James Hardie (Amaca) successfully however James Hardie claimed against the State, stating that it was the States responsibility to ensure safety. A) Generally, a public authority which is under no statutory obligation to exercise a power owed no common law duty of care to do so B) An authority MAY attract a duty of care due to its conduct where: o The authority has created a danger by its actions o Where an authoritys ownership or control over a structure attracts a duty of care (Pyrenees the Council had control due to its sole knowledge of the risk and its ability to remedy the risk ALSO Crimmins where the relationship between employee and Authority established control o Where an authority acts so that others rely on it for their safety o Here an authority has control over a situation that carries a risk of harm which the authority knows or should know (Heyman) Their Honours stated that the totality of the relationship between the parties was the fundamental issue in this case o They distinguished this case from Pyrenees since the State was NOT the sole entity with KNOWLEDGE of the risk o They distinguished it from Crimmins since the State did NOT have an extraordinary degree of CONTROL over the plaintiff o Furthermore, they drew similarities between this case and Barclay Oysters since the it was in a field of commercial

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self-interest and James Hardie had ample power to avert the risk themselves In fact, the State had less practical power to avert the risk than James Hardie did since it was the supplier of the asbestos o Furthermore, the imposition of a duty of care in this case would create a massive obligation for the state to use its powers to remedy any risk that it has or ought to have knowledge of (FLOOGATES) o Therefore the State was NOT liable Further Notes: A duty to take affirmative action can only arise when the Authority: o Has special knowledge o Is being relied upon o Has assumed responsibility in some way Occupiers Liability: Occupiers of land owed a duty of care to people who legally entered their land. The duty of care depended on the category of entrant o Invitee o Licensee o Trespasser AUSTRALIAN SAFEWAY STORES V ZALUZNA The plaintiff entered the foyer area of the defendants super market intending to buy cheese. Due to the rain outside, the floor was wet and the plaintiff slipped on the floor and injured her arm in the fall. ASS argued that the condition of the floor was caused by wet weather which was unrelated to any activity of ASS o Therefore they argued that no special duty applied Zaluzna argued that the wet floor arose because of the commercial operation of the floor and on a rainy day it should be reasonably foreseeable that the floor would get wet and slippery which may lead to falls and injury Their Honours established that the defendant DID owe a duty of care to the plaintiff since she: o Entered the premises legally therefore a proximate relationship has been established o AND it was reasonably foreseeable that injury may arise due to the wet floor caused by the rain NOTE: it was not decided whether ASS BREACHED its duty of care, only that it HAD a duty of care

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Breach of Duty (General Principles): Mason J set out the test for breach of duty: o It must be determined whether a reasonable man in the defendants position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff If so, the tribunal must determine what a reasonable man would do by way of response to the risk Factors to take into consideration to determine this include (CLA 5B (2)): the probability that the harm would occur if care were not taken the likely seriousness of the harm the burden of taking precautions to avoid the risk of harm the social utility of the activity that creates the risk of harm Foreseeability of Harm: For a breach of duty, reasonable foreseeability refers to: o The foreseeability of the risk of injury to the plaintiffs person or property that may result from the defendants actions. WYONG SHITE COUNCIL V SHIRT The plaintiff became a quadriplegic after striking his head on the bottom of a lake whilst water skiing. The lake had been used for water skiing in the last few years despite its shallowness. The council had dredged deeper channels alongside a jetty for powerboats but the majority of the lake remained shallow. The plaintiff said he was misled by the deep water sign erected nearby by the council that was intended to warn people of the deep water around the jetty. The main issue in this case was whether foreseeability of a risk and the probability of it occurring were related Mason J stated that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things in the context of breach of duty o When we say a risk is foreseeable we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful DOUBLEDAY V KELLY The plaintiff (aged 7) was injured as she attempted to roller skate on a trampoline whilst at the defendants house. She fell off and broke her arm amongst other injuries. She was unsupervised since it was early in the morning and the rest of the household was asleep.

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 The judge found that the main matter was whether there was a reasonably foreseeable risk of injury if a 7 year old used the trampoline without supervision o The judges found that there WAS a reasonably foreseeable risk Despite the defendants warnings to the plaintiff about not jumping on the trampoline, this did not discharge them from breaching a duty of care since the trampoline could easily have been turned over. Responding to the Foreseeable Risk: Once a foreseeable risk that is not fanciful or far-fetched is established, the court has to determine what the response of a reasonable person to the risk would be in the circumstances In order to determine this, a number of factors are considered These factors are known as the Calculus of Negligence o The reasonable person is supposed to weight up these factors and respond to the risk appropriately According to Hand J, there were three variable factors: 1. Probability of the risk occurring 2. The seriousness of the resulting injury 3. The burden of taking adequate precautions ROMEO V CONSERVATION COMMISSION A young woman went with a friend to a Coastal Reserve. At the reserve, she drunk some alcohol. In a drunk state, her friend and her fell off the edge of a cliff after miss-stepping and became a paraplegic. The issue in this case is whether the Commission breached its duty of care towards the safety of public visitors (including the plaintiff) by not fencing the area extensively. Kirby J weighed up all of the factors in the case, finding that: o It WAS foreseeable that someone could fall off the edge BUT it was a VERY REMOTE possibility especially with the existing fence in place The law does not require EVERY reasonably foreseeable risk to be guarded against if there are other factors in play: In this case, the burden of guarding against this particular risk by constructing a fence would mean that ALL similar cliffs would have to be fenced and this would place an unreasonable burden on the commission especially since the risk was so remote o Budgetary concerns become a factor the resources available for the public service are limited and it is undoubtedly a factor to be taken into account The aesthetics of the landscape would be harmed by additional fencing

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Additionally, the plaintiff was drunk and so her perception was affected Therefore there was NO breach of duty of care in this case Mc Hugh J (DISSENTING) believed otherwise He believed that the magnitude of the risk was grave and involved death or paraplegia The risk was NOT so remote or unlikely especially since the cliff was located next to a car park where a great number of people congregated He stated that the burden to eliminate the risk could have been a simple three-wire fence which was inexpensive and easy to install o The argument that all coastal areas would need similar fencing was invalid because other areas would have a remote and unlikely risk of injury VAIRY V WYONG SHIRE COUNCIL The plaintiff suffered serious injury from diving into water and striking his head on the sand below. Many others had dived into the same water earlier that day but a similar accident occurred 15 years earlier. The issue in this case was whether the Council breached a duty of care it owed to the appellant by not erecting one or more signs warning against, or prohibiting driving from the rock platform. Hayne J argued that in order to weigh up the factors that determined a breach of duty, one must look forward from a time BEFORE the accident occurred to see what a reasonable person would have done It was determined that there WAS a reasonably foreseeable risk that someone diving off the edge of the platform would suffer serious injury due to the shallow water o This is obvious because someone already DID suffer injury 15 years prior However, Hayne J went on to say that a breach of duty would place an unreasonable burden upon the council to mark EVERY platform that divers could injure themselves upon along the 27km coastline o Therefore there was no breach. Standards of Care in Negligence Law: The Utilitarian Hand Formula o The Hand formula stated that an action was negligent if the probability of an injury x the magnitude of the injury > the benefit of the action or the burden that would arise to avoid the action o This formula has been abandoned since it is impossible to take into account all of the factors using this simple formula Non Utilitarian Justification of the Hand Formula o 385-390 WTF do it properly later Probability of Harm: RTA V DEDERER

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 Dederer had seen people jumping off a bridge maintained by the RTA and these people had suffered no harm. The sand underneath the bridge was subject to tidal forces and so the depth of the water varied. In 1993, a standard came into force requiring horizontal railings on bridges rather than vertical ones but the RTA did not alter the bridge. Consequentially, Dederer dived off the bridge and became paraplegic. He stated that the RTA should have provided information about the shifting sands, modified the railings so that there was no ledge and made the railings horizontal. Gummow J admitted that the RTA owed Dederer a duty of care but the real issue was the scope of the duty owed o The RTA was obliged to ensure that the road was safe for users exercising reasonable care for their own safety according to Brodie He stated that the law requires only the exercise of reasonable care NOT the prevention of injury or harm to others He argued that the probability of injury from the risk was very low and the RTA had little control over the risk since the shifting sands altered the depth of the water continually He believed that the Court of Appeal erred in looking at the matter retrospectively rather than looking at it before the accident happened He believed that although the risk was foreseeable and the potential injury was grave, that the alleviating action would have been useless o The erection of more signs would not have told the defendant anything he didnt already know and therefore wouldnt have alleviated the risk o The installation of a new fence would not have been sufficient to stop Dederer from climbing it anyway and jumping Plus the cost of new railing was over $100,000 Therefore the RTA acted reasonably with their existing signs (which prohibited climbing and diving) and did not breach their duty of care The Seriousness of the Harm: The seriousness of the potential harm elevates the required level of care by the defendant towards the class of people the plaintiff belongs to. PARIS V STEPNEY BOROUGH COUNCIL The plaintiff was a fitter in the defendants garage. The defendant knew that the plaintiff had only one eye. During work, a chip of metal flew into the plaintiffs good eye, making him almost totally blind. He sued the defendant for failing to supply him with safety goggles and therefore breaching his duty of care. Lord MacDermott considered whether the potentially graver injury of total blindness suffered by the plaintiff as opposed to blindness in one eye which was potentially sufferable by those with two eyes meant that a different duty of care was owed to the plaintiff He believed that BOTH the risk of injury (which was the same for both the plaintiff and two eyed workers) AND the seriousness of the injury (not the same for both classes) should be considered 20

o a particular workman is likely to suffer a graver injury than his fellows from the happening of a given event is one which must be taken into consideration in assessing the nature of the employers obligation to that workman The Burden of Taking Precautions: WOODS V MULTI-SPORT HOLDINGS The plaintiff suffered 99% blindness in one eye during a game of indoor cricket organised by the defendants and played on their premises. Some equipment was provided, not including helmets or pads. Although a duty of care was owed, the real issue was whether that duty was breached by not taking reasonable steps to avoid the risk through warning signs and eye protection equipment. Gleeson CJ stated that the main issue is whether the defendant acted reasonably to alleviate the risk in the particular circumstances o In this particular case, the issue was whether the burden of providing eye protection was greater than the magnitude of the risk He agreed with the trial judges findings that the provision of headgear was not necessary o Since no such headgear had been designed for the game and the majority of people who played the game did not wear any eye protection Also, the plaintiff argued that he was not aware as to the extent of the injury possible by playing the game and that the defendant should have warned him o However, his Honour stated that it was obvious and known to all who played the game that there was the potential for the ball to strike a players face and therefore reasonableness did not require warning However in a dissenting judgment McHugh J believed that the burden of providing a helmet was not so great and that the potential of injuring another player by wearing a helmet was negligible NEINDORF V JUNKOVIC The plaintiff tripped over an injured herself on an uneven surface in the driveway of the defendant home The main issue in this case is the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises Almost all ordinary households contain hazards and almost all ordinary households contain uneven surfaces (such as the one in this case) that may cause somebody to trip and fall When considering what a reasonable person would do to warn/eliminate the risk of this kind of hazard, Gleeson CJ believed that most people would do nothing o The finding of a breach of duty in this case would mean that almost all households in Australia would be required to warn or

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eliminate hazards on their properties which is an unreasonable burden Kirby J dissented against this judgment because he believed that the defendant o Had invited the defendant on her premises for economic benefit o had taken no action to minimise risk The action that could have prevented injury would have been a small burden (i.e. painting the fault line or placing a table on it) To go against a breach of duty would violate the moral Atkinian principle of respecting thy neighbours Social Utility of the Risk Creating Activity: E V AUSTRALIAN RED CROSS SOCIETY The plaintiff contracted AIDS after being given a blood transfusion with contaminated blood It was reasonable for the defendant to have foreseen the possibility of HIIV infection from the blood transfusion o This is the case even though the risk was extremely small, the risk was not farfetched or fanciful The issue in this case is whether the Society breached its duty by not taking reasonable steps to ensure the safety of the blood The plaintiff argued that the defendant breached its duty of care by not using anti-HBc surrogate testing However, the anti-HBc testing would lead to a 5% loss of blood available which in itself would pose a risk of postponed operations and even death There was no conclusive evidence as to the effects a 5% drop in the blood supply would have Therefore it became an issue of losing 5% of the blood supply v the benefit of AIDS free blood o Due to the lack of evidence and the persuasive position of US courts willing to take the low risk of AIDS infected blood rather than lowering the blood supply, the plaintiff failed This is a case of GREATER SOCIAL UTILITY IS MORE IMPORTANT THAN A LOSS FOR A SMALL PERCENTAGE OF THE POPULATION Does the Breach of a Statute Automatically Lead to a Breach in the Duty in Negligence? MOST of the time YES But in special circumstances (i.e. a person running a red light to escape a bushfire) NO o Tucker v McCann Inherent or Obvious Risk: 22

 Inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill (i.e. you cannot remove the risk) o No liability arises for an inherent risk MULLIGAN V COFFS HARBOUR CC A man suffered quadriplegia as a consequence of diving into water and striking his head on the sand below The court decided that diving into an open environment such as into the sea contains and inherent risk since you cannot remove the risk by ascertaining the depth of the water since the depth is subject to constant change due to tides/swells o Therefore no liability An obvious risk is defined by the CLA o It is obvious to the reasonable person o It can be a matter of common knowledge o It can have a low probability of occurrence o And it doesnt have to be physically observable or prominent o However, if some thing doesnt operate properly and causes a risk, it CANNOT be an obvious risk There is NO duty to warn against an obvious risk NEINDORF V JUNKOVIC Kirby J explains obvious risks Kirby J wrote that where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just Kirby J believes that this statement has been misunderstood and misapplied in courts by taking the statement out of context It has now been used as a method of proving that contributory negligence can be used as a complete defence to liability o This is the wrong direction for the law to travel in Since a plaintiffs momentary carelessness is much less significant in the responsibility for accidents than a defendants indifferent neglect of considerations of accident preventions Who is the Reasonable Person? The legal standard of care against the defendants conduct is measured by what a reasonable person would have done This legal concept sometimes becomes an issue because it doesnt take into account the individual personality or idiosyncrasies of the defendant Furthermore, it is the judges who decide what a reasonable person is or ought to have done o However, the judges represent a small minority of the Australian population since they are mostly Anglo-Saxon males from a private-school background 23

Gender: TORT LAW & THE FEMINIST CRITIQUE OF REASON The reasonable man has been the standard for determining what a defendant should have done in a duty of care trial However, because of this, defendants with particular weaknesses or character traits are found to be liable even when they have not done anything wrong in a moral sense Furthermore, the word man implies a gender bias which has given rise to a feminist critique o The reasonable man portrayed in the courts who takes the magazine at home and in the evening pushes the lawn mower in his shirt sleeves does not capture the experience of women juggling duties between home and work This view is very difficult to change, especially sine the vast majority of the judiciary is male This standard can become problematic in certain cases where a defendant is female (or of a different class, race etc. to the reasonable man) and the reasonable MAN determines what she ought to have done o For example in Tucker v Henniker a teenage girl who caused an accident while driving a carriage was judged on the standard of a reasonable male carriage driver o Furthermore, in Sayers v Harlow UDC the judges were called upon to put themselves in the position of a woman, dressed in a tight skirt and high heeled shoes, locked in a lavatory while her husband waited for her at the bus stop Not surprisingly, the court found her contributorily negligent in attempting to climb out of the cubicle to escape Another argument used by feminist scholars is that the legal attributes of the reasonable man (such as being able to weigh up the costs and benefits of an action without emotional influence) are male characteristics which do not favour females who tend to be more influenced by emotion and are less rational o Rather than rejecting these female stereotypes of irrationality, feminist scholars have tried to redefine what is rational and gain support on different forms of rational analysis and decision making that women tend to use They have tried to change the perception that a womens of decision making process is nave and irrational This argument has been made strongly by Gilligan who believes that the traditional bounds of reason have been drawn too narrowly The claim that the reasonable man is male is explore with three main arguments o 1. Only men possess the physical or intellectual attributes necessary comply with REASON highly sexist view which does not have much support

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o 2. Men are more able to comply with the reasonable man standard due to their gender socialization the perceived differences between men and women are socially constructed rather than biological therefore the skills that they are purported to possess are reinforced by social standards o 3. The metaphoric representation of men as rational and women as irrational Age: MCHALE V WATSON Watson (aged 12) threw a scrap metal bolt, which he had sharpened at one end at a hardwood post, expecting it to stick to the post. However, the dart missed/glanced off the post and hit McHale (aged 9) in the eye. She was blinded in the eye. She sued both Watson and his parents for negligence. The main issue to be grappled with in this case was whether Watson should be judged by the standard of a reasonable man or that of a reasonable 12 year old McTiernan J stated that there was a lack of previous authority dealing with the standard of care applicable for young children because children are often not worth suing in tort matters (parents and guardians are) He agreed with the trial judge that the defendant did not have enough maturity to foresee that the dart may glance off and injury the plaintiff o He believed it WAS fair for the judge to take into account the plaintiffs age in his decision This special circumstance did not contradict any point of law Therefore judgment to the defendant Kito J believed that a defendant cannot escape liability by proving that he/she is ABNORMAL in some way o HOWEVER, being a child is NOT an abnormality and so a child CAN rely upon his lack of capacity for foresight or prudence (due to his stage of development) as a defence It would be absurd for the law to take normality in relation to persons of all ages taken together Kitto J further this argument by stating that it would be unfair to judge a childs liability based on the normal conduct of a person OTHER THAN THE AGE OF THE CHILD IN QUESTION Therefore it would be unreasonable for a child of 12 to consider before throwing the spike: o The hardness of the timber o The chances of a throw being able to make the spike stick in the wood

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o To foresee the danger that it might glance off and injure someone Judgment for the defendant Mental Illness and Disability: CARRIER V BONHAM Carrier was driving a bus when Bonham walked in front of it. Carrier braked but was unable to stop the bus from hitting Bonham. Carrier suffered nervous shock and couldnt continue working as a bus driver. Bonham was a mental patient with schizophrenia. He had escaped from his hospital and was intending to commit suicide by walking in front of the bus. He was not aware that his actions might potentially cause injury to Carrier or others on the bus. The main issue in this case was whether someone with an unsound mind is capable of being liable in negligence The trial judge believed that a the legal position person of unsound mind ought to be equated with that of an infant o Therefore the standard of an ordinary person did not apply HOWEVER McPherson J did not agree with this judgment o He stated that unsoundness of mind is not a normal condition or a stage of development that all of humanity passes through o Additionally, there is no normal condition of unsoundness of mind since different patients suffer different conditions and different severity of conditions o Therefore it would be impossible to devise a standard by which the tortious liability of such persons could be judged a class Therefore it does not give the mentally unsound IMMUNITY from negligence o They should be judged according to the NORMAL STAND OF A REASONABLE MAN Judgment for the plaintiff Learners: IMBREE V MCNEILLY The plaintiff allowed the defendant to drive a four-wheel drive station wagon in the N on a gravel road. The defendant was 16 years and five months old and did not have a learners permit and had limited driving experience. The defendant lost control of the vehicle and the plaintiff who was a front seat passenger was seriously injured. The mains issue that needed to be determined in this case was what was the standard of care that the plaintiff owed to the defendant o Was it what is reasonably expected from an unqualified and inexperience driver as in Cook v Cook? o Was it the same standard of care as a licensed driver? The judgment first made reference to Cook v Cook o In this case it was stated that special and exceptional facts may so transform the relationship between driver and passenger that it would be unreasonable to measure the standard of 26

o o o

skills and care required of the driver by reference to the skill and care that are reasonably to be expected of an experience and competent driver The reasoning in Cook relied upon the principle of proximity which is now no longer regarded as a determinant of duty Also, the case dealt with whether a duty existed not whether the defendant had breached that duty Furthermore, the reasoning in Cook was underpinned by the fact that the plaintiff knew that the driver was inexperienced This gave rise to the special and exceptional facts that transformed the relationship between the driver and the passenger which changed the relevant duty owed However, this knowledge of inexperience as a basis for a special duty should be dismissed since: The learner displays L-plates so other drivers KNOW that he/she is experience but the learner driver DOES NOT owe a DIFFERENT duty of care to them Additionally, another passenger in the car except for the one in the front passenger seat will KNOW of the Learners inexperience, but he/she is also owed no special duty Therefore, it is UNREASONABLE to allow a special duty or care to exist between the driver and the front passenger MERELY ON KNOWLEDGE OF INEXPERIENCE

Furthermore, the Court expressed their view that it was difficult to apply a standard based on the inexperienced driver of ordinary prudence This is because the level of inexperience can vary from person to person (i.e. inexperience is hard to define) Inexperience is not related to age in driving since people acquire their licenses at different ages Therefore, the court decided that NO SPECIAL STANDARD was to be established for Learner drivers and that they must be judged with the standard of a driver with ordinary skill and prudence The defendant was liable but there was a 30% contributory negligence by the plaintiff for allowing an unlicensed driver to drive on a gravel road without instructing him to avoid debris on the road (which caused the crash) By holding that Cook should no longer be followed, the High Court has removed the inherent difculties involved in applying variable standards to the same conduct, the difculties in determining the level of skill expected of inexperienced drivers, and removed the anomaly that placed the supervising passenger in a different position from other road users and presumably other passengers in the car Professionals or Those With Special Skills:

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 When someone is a professional and/or possesses a special skill in a particular activity, the standard of care is raised There have been a number of professions that have been included in this: o Solicitors o Accountants o Surgeons o Insurance Brokers o Engineers ROGERS V WHITAKER The defendant was an ophthalmic surgeon. The plaintiff was a patient of the defendants who became almost totally blind (in both eyes) after he had operated on her. She had already been blind in the left eye since 9 from an accident. The defendant DID conduct the operation with skill and care. However, he didnt warn her of a 1 in 14000 chance of a complication known as sympathetic ophthalmia occurring in her good eye. This was despite incessant questioning by the plaintiff as to the possible complications of the surgery, particularly any possible harm to her good eye. The main issue in this case is concerns the scope/conntent of the defendants duty i.e. whether the defendant breached his duty to the plaintiff by not warning her of the chance of sympathetic ophthalmia The duty of a medical practitioner is to exercise reasonable skill and care in the provision of treatment and advice o This duty is comprehensive and covers examination, diagnosis and treatment of the patient as well as the provision of information in an appropriate case The defendants case rested on the Bolham principle whereby: o a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice It becomes difficult to apply the Bolham principle to matter of giving information and advice o This is especially the case if a patient specifically asks for advice and the medical practitioner does not disclose the information sought after because a responsible body of medical opinion says that it should not be disclosed o In Sidaway the majority believed that a patients questions should be truthfully answered o In Australia, particularly in the area of disclosing information, the Court has held that it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to the paramount consideration that a person is entitled to make his own decisions about his life F v R It is NOT for a respected medical body to decide on this matter In F v R the Court rejected the Bolham principle King CJ said it was for the law to decide NOT a professional body 28

o This is because it is the patients RIGHT to know what risks are involved When a patient is deciding whether to undergo an operation or not and there is certain information about the procedure that the medical practitioner knows whereas the patient doesnt, it would be illogical to impose a restriction upon the amount of information that should be given to the patient Therefore the law should recognise that a doctor has a duty of care to warn a patient of a material risk inherent in the proposed treatment if, in the circumstances of the particular case, a reasonable person in the patients position, if warned of the risk, would be likely to attach significance to it o A doctor will not breach his/her duty if in the circumstances he/she has an unusually nervous/volatile patient In the present case, it would be reasonably foreseeable that the patient (already blind in one eye) would attach significance to the possibility of both her eyes being damaged o Therefore the doctor DID breach his duty of care by not warning the plaintiff of sympathetic ophthalmia Further Notes: The House of Lords held that there is no single reasonable standard of skill to be expected of professional practitioners but the standard may vary with the position within an organisation o Wilsher a junior doctor and a senior doctor inserted a catheter in the wrong area The standard that will be applied can depend on the context in which it is being performed and the nature of the task o Philips v William Whitely Ltd an ear piercing went wrong but there was no breach since the standard applied was one of a jeweler not a surgeon However, when a task requires a special skill the standard will be of the reasonable person possessing that skill o Papatonakis where a cable fell because an ordinary household carpenter rather than a professional cable installer fixed the cable The standard applied was that of a professional cable installer The CLA has adopted a modified version of the Bolham principle o See s 5o The main point in this is that the Bolham principle is to be applied except when it is irrational or against a written law to do so

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Damage: Causation and Remoteness Damage: In a negligence case, the plaintiff must prove that the defendants breach of duty is a cause of the plaintiffs damage/harm AND that the defendants negligence is a proximate cause of the damage/harm Damage is ESSENTIAL in a negligence case The concept of damage can sometimes be questioned when a plaintiff is exposed to a harmful substance where the damage may occur in the future In California, the Potter case awarded compensation for fear of developing cancer in the future due to an act in the present even though the actual damage had not occurred as yet In England and Australia, this view has NOT been adopted o Lord Hoffman the risk of future illness or anxiety about the possibility of that risk materializing [does not] amount to damage for the purpose of creating a cause of action Causation and Remoteness: The CLA splits causation into two sub sections A) Causation is concerned with whether the negligent conduct was a NECESSARY CONDITION of the harm B) The scope of the negligent persons liability extends to the harm so caused o i.e. it is appropriate for the negligent persons liability to extend to the harm so caused Requires Court interpretation Causation: For something to be causal the plaintiff must prove that the loss could not have occurred but for the defendants negligence o This is known as the but for test It is not without its limitations and critics: For example Justice McLachlin believes that the allor-nothing nature of the rule denies recovery where instinctive justice tells us otherwise MARCH V STRAMARE The defendants parked a truck in the middle of a six-lane road in order to unload the truck. The area was well lit and the parking and hazard lights were on. The defendants had been doing this for years. The plaintiff who was speeding and affected by alcohol collided with the truck and was injured. Mason CJ started by rejecting the but for test as the exclusive test of causation in negligence He addressed a number of issues that were causing confusion with regards to causation:

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o The terminology used to express the principles in tort He distinguished the term reasonably foreseeable from being a test of causation Instead, reasonable foreseeability is used to determine the limits beyond which a wrongdoer will not be held responsible for damages o Contributory negligence Contributory negligence as a defence often caused confusion in the development of a coherent legal concept of causation However, the elimination of contributory negligence as a defence has lessened this confusion o The new statute allows courts to recognize that there are concurrent and successive causes of damage rather than one effective cause He believes that the issue of causation can be divided into two questions: o The question of causation in fact (i.e. determining what caused the accident) Determined by the but for test o Whether a defendant is responsible for damage which his negligence has played SOME part in producing He agrees with Dixon CJ in that it is ultimately a mater of common sense The but for test must be applied with certain qualifications o The but for test is difficult to apply when there are two or more events which would each be sufficient enough to bring about the plaintiffs injury The application of this test would mean that neither event is the cause NOT ACCEPTABLE as an exclusive criterion o Another failure of the but for test is in a novus actus interveniens or a superseding act that breaks the chain of causation which would otherwise have resulted from an earlier wrongful act MASON CJ stated that the test for a novus actus interveniens is whether the intervening act was in the ordinary course of things the very kind of thing likely to happen as a result of the defendants negligence If YES then IT CANNOT BE A n.a.i. If NO then it may be a n.a.i. FORESEEABILITY DOES NOT AUTOMATICALLY MEAN THAT IT ISNT A N.A.I. CHAPMAN V HEARSE The main issue was whether Chapmans initial act of negligence was the cause of Dr. Cherrys death. The plaintiffs argument centered around the fact that the ultimate damage was reasonably foreseeable o However, this is an incorrect application of the law since reasonable foreseeability is not a test for causation 31

And it should not be applied unless or until it can be proved that the negligent act/omission actually caused the damage in the first place Chapman submitted that he WAS negligent but that Dr. Cherrys death was caused solely by Hearses negligent driving o Was Hearses driving a novus actus interveniens wich therefore broke the chain of causation between Chapmans original negligent act and Dr. Cherrys death? Chapman insisted that Hearses act should not be reasonably foreseeable since it was a wrongful act o However, the court rejected the principle that wrongful acts are AUTOMATICALLY not reasonably foreseeable Dr. Cherrys presence on the road was the cause of Chapmans negligent driving o And given the circumstances (i.e. dark, low vision etc.) the risk of injury from passing traffic was substantial and not far fetched or fanciful Therefore Chapmans negligence must be regarded as the cause of Dr. Cherrys death since it was reasonably foreseeable that an accident such as the one that occurred could have happened in the circumstances

HABER V WALKER The plaintiffs husband was injured in a motor vehicle accident that was the result of the defendants negligence. He suffered from severe depression due to his injuries and hung himself a year later. The widow sued the driver. However, the defendant argued that the suicide was a novus actus interveniens (since it was a voluntary act that severed the chain of causation between the death and the drivers negligence) NOTE: the plaintiff relied on the Wrongs Act 1958 (Vic) Lowe J considered s 16 of the Wrongs Act which required that the plaintiff establish that the death was caused by some act of the defendant (i.e. the deceaseds death by suicide was caused by the plaintiff) He pointed out that the conscious act of a sane person does not necessarily break the chain of causation (to hold this would be inconsistent with Chapman v Hearse) He believed this case was a question of fact and that the act was not the conscious act of a sane person and so it does NOT break the chain Smith J summarised the decision in Chapman v Hearse the negligent act of a third party will not break a chain of causation if the original wrongdoer should have realized that a third person might so act o The court held that the defendant ought to have realized that it was not far fetched or fanciful that such an accident might occur and therefore the act did NOT break the chain of causation and so judgment for the plaintiff [SUMMARY OF LEGAL PRINCIPLES REGARDING CAUSATION FULL HIGHLIGHTED ENDING OF HABER V WALKER]

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MAHONY V KRUSCHICH DEMONLITIONS The plaintiff made a claim against his employer for injuries sustained when he was employed on the demolition of a power house. The plaintiffs injuries required 5 years of medical attention. However, the defendant claimed contribution from Dr. Mahony, arguing that Dr. Mahonys negligence caused or contributed to the continuing injuries and incapacities alleged by the plaintiff The Court stated that a negligent defendant does not automatically avoid liability for a plaintiffs subsequent injuries even if those injuries were tortuously inflicted. o It depends on whether the subsequent injuries were to be regarded as foreseeable consequences of the first tortfeasors negligence In this case, the Court came up with scenarios relating specifically to the exacerbation of an injury by medical treatment: o 1. Provided that the plaintiff acts reasonably in seeking/accepting treatment, negligence in the administration of treatment is NOT a novus actus interveniens This is because the exacerbation of an injury by medical treatment is a reasonably foreseeable consequence of an initial injury o 2. If the treatment given is inexcusable bad or completely outside the bounds of what any reputable medical practitioner may prescribe then this can be regarded as a novus actus interveniens However, the original plaintiff is still responsible for the original injuries just not the subsequent injuries

Multiple Sufficient Causes: This exists where there are two or more events, each of which is sufficient to cause the harm Sometimes, the plaintiff is unable to prove which one of several defendants caused the plaintiffs harm o In Canada, once negligence and a breach of duty is established, the burden of disproving causation is placed upon each of the defendants If the defendants are unable to disprove causation, both are held jointly/severally liable In other similar cases, a concept of market share can be used o This occurs when it is not provable as to which defendant caused the injury o In these cases, each defendant that CANNOT DISPROVE potential causation will be forced to pay an equal share of the damages Successive Causes: 33

 This is where a plaintiff suffers successive injuries, each of which is capable of causing the plaintiffs damage: BAKER V WILLOUGHBY The plaintiff was injured in a car accident caused by the defendants negligence, causing serious ankle and leg injuries. This caused a lessened ability of movement as well as pain and suffering. After the accident but before the trial, the plaintiff was shot in the left leg whilst at work by a robber and the injured leg had to be amputated. The defendant argued that the shooting of the leg was a novus actus interveniens and that the injuries that he had caused were no longer applicable because the leg had been amputated o Therefore no loss suffered thereafter can be attributed to the defendants original negligence. Thereby all additional loss should be attributed to the second injury The plaintiff argued that the loss suffered due to the original injury had not been diminished by the second injury and that he still suffered from the same loss as before and so the second act was not a novus actus interveniens Lord Reid set out the fact that the second defendant would only be responsible for any ADDITIONAL LOSS to the plaintiff and that the original defendant would STILL BE RESPONSIBLE FOR ORIGINAL LOSS Loard Pearson said that although the defendants argument made sense, it would be a manifest injustice to allow it JOBLING V ASSOCIATED DAIRIES In 1973, the plaintiff suffered an injury to his back during his employment with the defendant. This meant that he was incapacitated for anything but light work. However, in 1976, the plaintiff was diagnosed with cervical myelopathy, unrelated to the accident, which by the time the claim was brought to trial in 1979, had resulted in total incapacity for work. According to a medical report, there were not signs or symptoms of myelopathy at the date of the accident. The issue is whether the defendant was liable to pay damages for the loss of earnings due to partial incapacity throughout the plaintiffs normal working life without the myelopathy or just until the time when myelopathy resulted in total incapacity Lord Keith believed that the vicissitudes of life such as illness should be taken into account when determining compensation o Otherwise, the damages may be greater than required unfairly against the defendant This went against Baker where supervening acts/events were to be disregarded He stated that the difference between Jobling and Baker was that one had a supervening illness whereas the other one involved a supervening tortious act o However, he asserted that the two cases should NOT be dealt with in separate principles

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 He believed that the MAIN principle was that FAIR compensation, not over compensation should be given In his opinion, he believed that the incapacitation suffered by the plaintiff would have occurred anyway as a vicissitude of normal life and so the plaintiff should only pay for the four years before the total incapacitation. Remoteness of Damage: Remoteness is dealt with in the CLA in s 5D, referring to it as the scope of liability Remoteness marks the boundary beyond which it would be unjust to hold the defendant liable o In s5D(4), the CLA recognises that: for the purpose of determining the scope of liability, the court is to consider whether or not and why responsibility for the harm should be imposed OVERSEAS TANKSHIP LTD V MORTS DOCK & ENGINEERING CO LTD (THE WAGON MOUND NO.1) The defendants in this case and in Wagon Mound No. 2 were charterers of the Wagon Mound, however, the plaintiffs were different. The ship, Wagon Mound was taking on furnace oil at the Caltex wharf. The defendants employees negligently allowed a large amount of oil to spill into Sydney Harbour, which spread over much of the bay, including under the plaintiffs wharf. The Corrimal was being repaired on the plaintiffs wharf through welding by the plaintiff. The plaintiffs manager checked with the manager at the Caltex wharf to judge whether it was safe to continue welding despite the oil. The manager assured that welding was safe. The plaintiff continued to weld, however, the oil caught fire and subsequently severely damaged the Corrimal. It was found that the ignition was caused by a piece of molten metal falling on a floating rag, which caught fire and acted as a wick. The issue in the case was whether the fire that destroyed the plaintiffs wharf was a reasonably foreseeable consequence of the defendants negligence (i.e. was it too remote?) Viscount Simonds started by dismissing Polemis by saying that for an act of negligence, however slight, which results in some trivial foreseeable damage, the defendant should not be liable for all consequences simply because they are DIRECT consequences (thereby overturning Polemis) because it is unjust to hold this principle o He argued that remoteness determines that a man must be considered to be responsible only for the probably consequences of his act and no more/no less o To decide otherwise would reject the basic principles of reasonable foreseeability set out in Donoghue v Stevenson and replace them with directness or natural consequences Therefore, although the damage suffered by the plaintiff was direct, the nature of the fire (starting by a freak accident) was NOT A REASONABLY FORESEEABLE consequence of the defendants initial negligence and therefore judgment for the defendant 35

THE WAGON MOUND NO. 2 OVERSEAS TANKSHIT LT V MILLER STEAMSHIP CO PTY LTD In this case, the plaintiffs were the owners of the ships that were damaged when the fire broke out The issue in this case is also whether it was reasonably foreseeable that the defendants negligence would cause damage to the ships in neighbouring wharfs In this case, Lord Reid: o Clarified that the oil spilt would have been difficult to ignite but NOT impossible Therefore it satisfies the test in Bolton v Stone whereby a risk can be reasonably foreseeable as long as the probability of it occurring is not far-fetched or fanciful and that a reasonable person would not have a reason to disregard it o The foreseeable seriousness of the risk was of a great magnitude should the unlikely event of the risk materialising occur o The burden to alleviate the risk was relatively low since the amount of spillage was so great that a vigilant ship engineer should have noticed the discharge and stopped it from occurring Therefore by weighing up the facts, it can be said that it was reasonably foreseeable that the oil could have ignited (even though the probability of it doing so was very low) o A reasonable man would not have dismissed such a risk from his mind and do nothing when it was so easy to prevent it Therefore judgment for the plaintiff Kind of Injury and Manner of its Occurrence: HUGHES V LORD ADVOCATE An 8 year old boy was severely burnt due to an explosion of a paraffin lamp which was one of several left at night surrounding an unguarded open manhole in the street The defendants argued that the injury suffered by the plaintiff was not reasonably foreseeable o However, Lord Reid argued that the injuries suffered were burns and injury caused by burns was not unforeseeable as the defendant has argued It would be expected that if a boy did decide to enter the dark tent that covered the manhole he would take a lamp with him and if the lamp was dropped, it would probably cause burns Although the injury was more serious than anticipated, the plaintiff can only escape liability if the injury suffered was of a type that was not reasonably foreseeable o This is not the case here

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o Secondly, the defendants had not done as they ought to have done because they left the manhole completely unoccupied o Although the defendants also argued that the lamp behaved unpredictably Experts even agreed that no one would have expected the explosion to occur the way it did Lord Reid argued that the accident was still caused by a known source of danger and the although the way that it occurred was unforeseeable, this provided no defence o Judgment for the plaintiff Lord Pearce also agreed that the accident was but a variant of the foreseeable o Therefore it was within the risk created by the negligence Denning LJ in Roe v Ministry of Health FOR A NERVOUS SHOCK CASE WHERE MENTAL HARM WAS FORESEEABLE BUT THE EXACT NATURE OF THE HARM WAS NOT AND THE JUDGMENT WAS STILL GIVEN TO THE PLAINTIFF (THUS UPHOLDING THE WAGON MOUND PRINICPLE) USE Mt Isa Mines v Pusey JOLLEY V SUTTON LBC In the grounds of a block of council flats owned and occupied by the London borough of Sutton, Justin Jolley, a schoolboy (14) suffered serious spinal injuries in when a small, abandoned cabin cruiser (lying in the grounds of the block of flats) fell on him as he lay underneath it while attempting to repair and paint it. Can the plaintiff show that the injury suffered fell within the scope of the councils duty? o i.e. was the injury reasonably foreseeable When determining this issue, Lord Hoffman made it clear that the TYPE of injury rather than the PRECISE injury is what matters Hoffman also stated that reasonable foreseeability is a sliding scale of probability, based on other factors such as the burden of taking precautions (considered in Wagon Mound No. 2 and Bolton v Stone) o A REASONABLE MAN WOULD ONLY NEGLECT SUCH A RISK IF HE HAD SOME VALID REASON FOR DOING SO: EG, THAT IT WOULD INVOLVE CONSIDERABLE EXPENSE An important point to note is that the defendants themselves admitted that they should have removed the boat based on the ground that there was a risk that children would suffer minor injuries if the rotten planking gave way beneath them o However, if there were any additional risk, the council would have incurred no additional expenses by removing the boat anyway Therefore it can be said that there was NO ADDITIONAL BURDEN placed upon the plaintiff by removing the risk given that they admitted they should have removed the boat in the first place

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 This point, as well as the fact that CHILDREN can find unexpected ways of doing mischief to themselves and therefore it was reasonably foreseeable (albeit a small probability) that the type of injury suffered by the plaintiff would occur o Therefore judgment for the plaintiff The Extent of Damage and the Eggshell Skull Rule: The eggshell skull rule states that the defendant must take their victims as they find them o i.e. it is no defence that the plaintiff would have suffered less injury or no injury at all had the plaintiff not had an unusually thin skull or an unusually weak heart o The term implies that if a person had a skull as delicate as the shell of an egg, and a tortfeasor who was unaware of the condition injured that person's head, causing the skull unexpectedly to break, the defendant would be held liable for all damages resulting from the wrongful contact, even if such damages were not reasonably foreseeable, or the tortfeasor did not intend to cause such a severe injury.

STEPHENSON V WAITE TILEMAN LTD The plaintiff was employed by the defendant as a steeplejack. He was resetting the extremely rusty wire rope system of a crane. The rusty wire was starting to break and de-strand itself, producing little sprags; capable of inflicting a scratch on anyone ordered to handle the rope. The plaintiff was cut on his hand by one of the sprags and washed the cut in cold water and covered it with plaster. However, in a day or two, his hand began to swell and he became feverish. After being admitted to a hospital, his swelling and fever subsided, however, symptoms of a very serious and debilitating kind (inability to concentrate, headaches, loss of balance etc.) have persisted. [in the previous trial, the jury found that the cause of the disability was the cut and the plaintiff was therefore given general damages, however the kind of injury was not reasonably foreseeable and he was 60% contributory negligent for not wearing protective gloves] Richmond J expressed the difficulty in finding a satisfactory theoretical basis whereby to reconcile cases dealing with the eggshell skull rule with the principle of foreseeability of damage o He accepted the view expressed by the eggshell skull rule and summarised the fact situations which may apply: 1. In cases of damage by physical injury, the principles imposing liability for consequences flowing from the pre-existing special susceptibility of the victim/from new risk or susceptibility created by the initial injury remain 2. In such cases, reasonable foreseeability should be limited to the TYPE of initial injury

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3. If the plaintiff establishes that the initial injury was within a reasonable foreseeable TYPE, then the necessary relationship of cause and effect can be established Therefore, the plaintiffs pre-existing susceptibility to brain damage did not protect the defendant from liability as long as the original physical injury was foreseeable o Any subsequent injuries flowing from the original injury need not to be foreseen and are NOT TOO REMOTE

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Concurrent Liability: Concurrent liability refers to the ability for multiple defendants to be liable for the same injury or damage Benefits: o It is more efficient and cheaper for the plaintiff to sue all relevant defendants in a single action o Concurrent liability allows the litigant to recover a fair amount even if one of the defendants is very poor and has no/very little money Concurrent Tortfeasors o There are a number of common situations in which concurrent liability is applicable: Joint Enterprise an activity involving two or more people (usually for business) For example, in Brooke v Bool a landlord and a passerby inspected a gas leak with a match, causing an explosion. Both were held jointly liable (not only liable for their own conduct but for each others conduct) but since the plaintiff decided to sue the landlord, he had to pay for both defendants. If the plaintiff decided to sue the passerby, the passerby would have to pay for both himself and the landlord. Vicarious Liability concurrent liability can impose legal responsibility on an otherwise blameless defendant for the tortious conduct of another For example, an employer can be liable for the tortious conduct of an employee Non-delegable Duties A defendant may be held to be concurrently liable with the wrongdoer where a plaintiff was at special risk of injury These are known as non-delegable duties For example, an employer has a non-delegable duty to provide a safe working place for its employees o If a cleaning contractor (not an employee so not vicarious liability) creates a dangerous condition at a workplace which causes injury to an employee, both the cleaner and the employer are liable Individual Torts Causing the Same Damage concurrent liability may also exist where several defendants commit individual torts injuring the plaintiff This is especially the case when the damage caused by each plaintiff is not individual identifiable For example, if a pedestrian is hit by one defendant and then subsequently another plaintiff, both plaintiffs will be concurrently liable for the whole damage 40

o The plaintiff then has the option to choose which plaintiff to recover from Vicarious Liability: The most common case of vicarious liability is the liability of an employer for a tort committed by an employee within the course of employment o However, in order for vicarious liability to occur, determining who is an employee? Is a question that must be answered The traditional test has been the control test The greater degree of control = the greater probability of an employee o i.e. crude form = a person is an employee if the employer can tell the person what to do and how to do it o However, this test is difficult to apply in situations of professional and skilled employees Such as trapeze artists (Zuijs v Wirth Bros Pty Ltd) Hospital professionals (Albrighton v Royal Prince Alfred Hospital) o A more refined test includes the right to exercise control by deciding things such as Working Hours Annual Leave Use of Equipment The right to hire and fire Payment of wages If a person is able to determine their own hours, provide their own equipment etc. they are likely an independent contractor o Another test is whether the persons task is a part and parcel of the organisation and is an integral part of the business HOLLIS V VABU Hollis was injured when struck by an unidentified cyclist on the footpath. The cyclist was wearing a jacket with the words Crisis Couriers on it. Crisis Couriers was owned and operated by Vabu. The company did not pay hospital bills or give any sick/annual leave. However, it did provide equipment, uniforms and required couriers to be neat and tidy. The main question when determining whether Vabu was vicariously liable was whether the couriers could be classified as employees or whether they independent contractors. Their Honours indicated that both independent contractors and employees carry out work for the benefit of the principal (i.e. employer) o However, the employee carries out work as the representative of the employer whereas the independent contractor does not

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 Their Honours then considered CONTROL as a test for vicarious liability o They acknowledged that the traditional perception of control is outdated due to changes in the relationship between employers and employees (i.e. no longer much direct supervision) However, despite this, common law has adapted its view of control to fit modern society by changing the control test from the actual exercise of control to THE RIGHT TO EXERCISE CONTROL Furthermore, control as the SINGLE factor in determining employment has been abolished in favour of considering the TOTALITY OF THE RELATIONSHIP between the parties When applied to the facts of the case, the Court argued that bicycle couriers CANNOT be viewed as independent contractors because: o They did not have independence in the conduct of their operations o They were not providing skilled labour o A bicycle courier is unable to make an independent career as a free-lancer o They had little control over the manner of performing their work (i.e. they had to be at work at 9am, assigned a work roster, WERE NOT ABLE TO REFUSE WORK) o They were also presented to the public as emanations of Vabu due to their uniform bearing his logo o There was no scope for couriers to bargain for pay o No annual leave was given Therefore they couldnt have been running their own enterprise even if they were providing their own accessories and owned their own bicycles AND as shown above, Vabu had considerable scope for exercising BOTH ACTUAL CONTROL as well as the RIGHT TO EXERCISE CONTROL Therefore, couriers were considered employees and so Vabu WAS VICARIOUSLY LIABLE o Judgment for the plaintiff Other Notes: In a case where a company lends out skilled employees for a period of time to others (e.g. crane driver along with a crane) they will usually remain vicariously liable for their employees actions, even if they do not control what they do, they still control how they do it (see Mersey Docks & Harbour Board v Coggins and Griffith Ltd) o This is especially pertinent in the modern context since the tendency to outsource and increase casual/part time work has increased The key is not only control over what they do but also HOW they do it In the Course of Employment: 42

 Another important qualification that must be present in order for vicarious liability to be proved is that the tortious conduct must be in the course of employment The traditional test for the course of employment rule was that: the employer is liable if the conduct of the employee is authorised or a wrongful and unauthorized mode of doing an authorised act o The test also applies even if the conduct was in breach of workplace rules or directives Even a prohibition from undertaking certain tasks or from performing them in a particular manner will not necessarily take the negligence outside the course of employment, especially where the employer benefits from the conduct (see Rose v Plenty and Limpus) o However, if the employee undertakes work not within the capacity of the particular employment, the employer will not usually be held liable e.g. if a bus ticket collector for some reason drives the bus (Beard v London General Omnibus Co) An employer is not liable where the employee exercises some independent discretion or authority at common law or under statute e.g. a police officer exercising an independent discretion to effect an arrest It is important to note that vicarious liability DOES NOT absolve the employee from liability o Rather, it is a joint liability o However, the plaintiff usually looks to collect damages from the employer for two reasons: 1. The employer usually has more financial resources 2. In some States, legislative amendments have made it illegal for an employer to pay for damages from the pay of an employee unless the employees conduct was classified as serious and willful misconduct NEW SOUTH WALES V LEPORE Three cases came to the High Court involving sexual assaults on school children by teachers during school hours on school premises. Lepore was one of the cases. It was previously accepted that there had been no negligence on the part of the School authorities It is important to note in this case that the School authority was not negligent in its conduct and the so the plaintiffs were suing the State of NSW as well as the teachers that committed the assault The issue in this case was determining whether the teachers actions fell within the course of employment o i.e. although the act was unauthorized (this can still lead to vicarious liability), were the actions so connected with the authorised act that they were to be regarded as a mode (albeit an improper mode) of that act. The Court recognised that sexual assault was definitely an unauthorized act, however, it did realize that there are some circumstances in which teachers, or persons associated with school children, have responsibilities of a kind that involve an undertaking of personal 43

protection, and a relationship of such power and intimacy, that sexual abuse may properly be regarded as sufficiently connected with their duties to give rise to vicarious liability in their employers o The maintenance of discipline was said to be within the employment responsibilities of the teacher Additionally, much of the misconduct (sexual assault) has taken place for punishment for misbehaviour (i.e. disciplinary action) Therefore it may be possible that it could be regarded as within the course of employment, albeit an unauthorized mode o On the other hand, the sexual assault may be the results of the sadistic nature of the teacher and could be very different from anything that could be regarded as punishment Therefore it could not be properly said to be within the course of employment Because the facts of the case were deficient the case was submitted for a new trial to ascertain the nature of punishment. Justices Gummow and Hayne identified two kinds of cases where the employer may be held liable: o 1. Where the conduct of the employee was done in the intended pursuit of the employers interests or in the intended performance of the contract of employment o 2. Where the conduct of the employee was done in the ostensible pursuit (apparent/pretended pursuit) of the employers business or the apparent execution of authority which the employer entitled the employee to exercise In this particular case, it was decided that sexual assault is not a byproduct of ANY task that a teacher is responsible for, even if intimate contact with the student is a part of the job Furthermore, the teacher had no authority to do any of the things that constitute the wrong (distinguishing this case from Lloyd and Morris where the employee was authorised by the employer) Also, the sexual assault cannot be justified as being in the interests of the state nor as an ostensible pursuit of the interests of the State

The Requirement of Tortious Wrongdoing: Vicarious liability only exists if the employee has committed a tortious act It does not apply if no tortious act was committed o However, an employer can still be liable for other reasons besides vicarious liability Non-Delegable Duties: Non-delegable is another area (one area being vicarious liability) where a blameless defendant can be liable for then negligence of another. Non-delegable duties deals with liability for the negligence of an independent contractor or even an agent/employee acting outside the scope of employment 44

BURNIE PORT AUTHORITY V GENERAL JONES P/L A fire destroyed Burnie Port Authoritys (BPAs) building. Frozen vegetables that were stored inside the building, owned by General Jones Pty Ltd were destroyed. The fire was caused when welding caused nearby cardboard boxes containing insulating material to catch alight. Independent contractor W & S employed by BPA to provide refrigeration and extensions to the building was found to be negligent for leaving the cardboard boxes close to where the welding would occur. General Jones sued both the independent contractor and the Port Authority. Initially, BPA was found to be liable under the Rylands v Fletcher principle o This principle states that a defendant is strictly liable for the escape of a dangerous substance without the need to prove fault, if it brings on to land/keeps anything that is likely to do mischief The Court recognised that the duty to take reasonable care cannot just be discharged by employing a third person (independent contractor) o The duty extends to ensure that reasonable care is taken o This duty arises due to a relationship of proximity whereby there is special dependence or vulnerability This is because the person on whom the duty is imposed has assumed a particular responsibility for the safety of the person affected E.g. school authority and pupil Hospital and patient The Court argued that this relationship of proximity due to dependence and vulnerability underpins the Rylands v Fletcher principal It is important to note that the degree of care in ORDINARY NEGLIGENCE (not in Rylands v Fletcher) can depend on a number of factors, including the magnitude of the potential damage of the risk as well as the probability of the risk materialising o Therefore, the Court stated that it is highly unlikely that liability will not exist under the principles of ordinary negligence in any case where liability would exist under the rule in Rylands v Fletcher Therefore, the Court suggested that the rule should now be seen as absorbed by the principles of ordinary negligence Therefore ORDINARY NEGLIGENCE should be applied to the present case: o In defining what is meant by a dangerous substance Donoghue v Stevenson made it clear that dangerous substances are not only confined to guns, poison and explosives etc. The Court defined two types of dangerous substances: 1. That the combined magnitude and probability of the risk is great enough that an ordinary person would consider it necessary to exercise special care in relation to it

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2. A substance/activity entrusted to an independent contractor is dangerous if foreseeable injury/danger will arise due to collateral negligence (i.e. the independent contractor has the potential to create the danger through his/her negligence) o In both cases, reasonable care should be taken to ensure that the danger does not materialise In this case, the EPS WAS dangerous because if the cardboard it was contained in was set alight, a fire would start and so the Port Authority should have taken reasonable care to ensure that the collateral negligence of the contractor welding near the boxes was stopped/prevented

Other Notes: The Court has been reluctant to extend situations in which non-delegable duty applies For example, the Court thought that a landlords duty to the tenants family on the leased property was NOT a non-delegable duty in Northern Sandblasting Pty Ltd v Harris What distinguishes an ordinary duty of care from a non-delegable duty? o One theory put forward (not totally agreed upon) is that in non-delegable duty there are two elements: Substantial risk An assumption of a particular responsibility towards the claimant NEW SOUTH WALES V LEPORE Gleeson CJ referred to Lord Greene, who pointed out that the first step in determining whether a non-delegable duty applied was to identify the extent of the obligation that arises out of a particular relationship o He made it clear that non-delegable duty is a duty to see that REASONABLE care is taken for someones safety, it is NOT an ABSOLUTE duty to protect someone from ALL harm His Honour then summarised the findings of Mason J in the NSW Supreme Court in Introvigne o In this case, Mason J believed that the State owed a personal duty (i.e. one that cannot be delegated to a third party such as teachers) to ensure that reasonable care is taken for the safety of students within schools o He said that the position of the State is analogous to that of a hospital since both cannot delegate the duty to take reasonable care to others However, Gleeson CJ made the argument that if Introvigne was to be supported by Australian law, it would mean that where a personal duty of care could be established, an 46

employers duty of care to take reasonable care would be transformed to an absolute duty to prevent harm This is because most situations can be said to involve a PERSONAL duty of care (defined by mason as a situation where a special responsibility or duty to see that care is taken i.e. vulnerable hospital patients, school children etc.) o The consequences of extending nondelegable duty this far would mean a NO FAULT SCHEME and a number of entities forcing to pay for all forms of tortious liability or excessive insurance to cover themselves Kirby J extended this argument by stating that non delegable duty was not designed to expand the content of the duty imposed upon the superior party to the relationship, so as to enlarge that duty into one of strict liability or insurance. It was simply a device to bring home liability in instances that would otherwise have fallen OUTSIDE the recognised categories of vicarious liability o Therefore since teachers were employees, and therefore the state could be held vicariously liable, non-delegable duty should NOT be considered Defences to Torts of Negligence: In certain torts cases, the plaintiffs claims can be defeated by a type of defence The four main types of defences available to defendants are: o Volens o Contributory Negligence o Illegality o Statute of Limitations The onus is on the defendant to prove that the defences apply Volenti Non Fit Injuria (Volens) Assumption of Risk: Volens refers to a plaintiff who takes the risk on injury upon him or herself (i.e. consenting to the risk) For volens to exist, the plaintiff has to have made an autonomous choice to consent to the risk o An autonomous choice is a choice that must be made free and unconstrained Voluntary E.g. in Avram v Gusakoski the passenger did not act voluntarily when the passenger had little time to consider alternatives when confronted with a drunk, aggressive and intimidating driver Deliberate Informed Knowledge of risk has to be ACTUAL KNOWLEDGE i.e. the plaintiff had to fully appreciate the risk 47

o This means merely saying the plaintiff ought to have known does not satisfy this element e.g. Scanlon v American Cigarette Company it was insufficient for a cigarette manufacturer to allege that a smoker ought to have known the harmful character of the product There are very few instances where volens defeats the plaintiffs claim Where a plaintiffs claim has been defeated, more often, there has actually been no breach of duty rather than volens e.g. inherent risks (cannot be avoided by due care and skill) The most common example of where volens has been used is where a passenger has accepted a lift with an incapacitated drunker driver o In Insurance Commissioner v Joyce the High Court ruled that a person who knowingly accepts a lift in a vehicle being driven by an obviously drunken driver may fail in his/her claim on any of the three following grounds: Volens the passenger autonomously consented to the risk of injury No breach of duty since the standard of care was not that of a reasonably prudent driver and so the passenger could not expect the driver to drive carefully at all Contributory Negligence the passenger failed to take care of his/her own safety by accepting the lift Recently, in these cases, volens has been denied because the plaintiff did not fully realize the risk o The plaintiff could not tell the driver was drunk o The plaintiff was not sufficiently SOBER to comprehend the situation E.g. in Suncorp Insurance & Finance v Bakery a 16 year old knew the driver was drunk but still thought he was ok to drive (due to age) o However, although volens has been denied (which is a total defence), contributory negligence can still apply even if the plaintiff did not fully appreciate the situation (partial defence) Volens also very rarely applies in cases in the workplace o It is not enough that the employee knows of the risk involved in his/her work, the employee has to, in effect agree to waive his/her right to sue the employer o In Bowater Scott LJ stated: I venture to doubt the maxim [of volens] can very often apply in circumstances of an injury to a servant by the negligence of his master In sporting events and recreational activities, volens does not normally apply, instead, when a plaintiff is injured through a nonnegligent act, often the defendant is not liable because there is no breach of duty rather than volens o This is the case for both spectators and participants

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COME BACK AND SUMMARISE 16.60 Contributory Negligence: Under current legislation, the defence of contributory negligence allows the plaintiffs damages to be reduced to the extent that is just and equitable (i.e. the plaintiffs share in the responsibility for the damage) Under law, the defence of contributory negligence is satisfied if: o The plaintiff failed to take reasonable care for his/her own safety (i.e. the plaintiff was negligent as well) o This negligence was a cause of the plaintiffs harm o The harm that eventuated was within the risk created by the plaintiffs conduct Contributory Negligence (General Law): At common law, the plaintiff may not be guilty of contributory negligence if he/she responded in the AGONY OF THE MOMENT to the defendants negligence o For example, if the plaintiff broke a leg jumping off a wall to get out of the way of a runaway truck and there was an alternative available to the plaintiff that would have caused less damage, the plaintiff is still not guilty of contributory negligence o Another example is when a plaintiff jumped off a train that was leaving a platform. No warning was given that the train was about to leave, the next station was 80 mile away and the plaintiffs son was left on the platform. The High Court held no contributory negligence by weighing up the degree of inconvenience to which he was to be subjected against the risk taken to escape from it However, it should be noted that mere inconvenience is not sufficient alone to absolve contributory negligence, the test instead is whether the plaintiff acted reasonably A plaintiff may be contributorily negligent for failing to anticipate the possible negligence of others o A prudent man will guard against the possible negligence of others when experience shows such negligence to be common Grant v Sun Shipping Co Ltd Lord du Parcq The standard by which a plaintiffs conduct is to be judged is affected by the CLA o However, if the general CLA principles are excluded, the court may exercise a generous approach in assessing whether an injured plaintiffs conduct constitutes contributory negligence This allows factors such as the plaintiffs individual idiosyncrasies and whether the task being performed was repetitive/boring etc. Where a particular safety requirement is mandated by legislation, it is generally held to be evidence of negligence o The weight attached to this breach will vary with the circumstances o For example, legislation in relation to seat belts is very strict 49

Causation (Contributory Negligence): In order for contributory negligence to be proven, a causal connection between the plaintiffs negligence and the DAMAGE must be established o This is DIFFERENT than the cause of the accident itself For example, an accident is often caused by bad driving, but the DAMAGE may be caused by both bad driving and the failure of the plaintiff to wear a seatbelt Lord Denning Froom v Butcher Therefore contributory negligence will still exist even if not wearing a seatbelt did not cause the accident SUGGESTIONS AS TO THE EXTENT OF DAMAGE REDUCTION General Notes: For contributory negligence to exist, the plaintiffs conduct need NOT involve a breach of duty to someone else nor does it need to be NEGLIGENT o It is sufficient if it is a failure to take reasonable care for the plaintiffs own safety PENNINGTON V NORRIS The plaintiff was knocked down and severely injured by a car driven by the defendant. The issue in this case is whether the trial judge was correct in reducing the damages awarded to the plaintiff by 50% for contributory negligence The Court acknowledged that it is rare that the apportionment made can be successfully challenged in an appellate court The Court then outlined the principles used in determining apportionment: o The main guide is the claimants share in the responsibility for the damage What is meant by this is the degree of departure from the standard of care of a reasonable man Using these principles, the Court THEN CONSIDERED THE FACTS OF THE CASE o It was night time o It was misty o The plaintiff was travelling at a speed of greater than 30 miles (speed limit) o The plaintiff did not look when crossing the road o There were quite a number of people around the vicinity Given these facts, it can be concluded that driving above the speed limit on a misty night, particularly with a large number of people about is extremely dangerous The Court concluded that it was unfair to award 50/50 damages merely for not looking when crossing especially given the plaintiffs conduct

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o Therefore damages were only reduced by 20% General Notes: When determining the standard of care required to assess contributory negligence, the reasonable standard in the position of THAT person should be used o This means that children etc. would have a different standard of care than an adult In NSW, contributory negligence may be 100% but this is rare In the CLA in NSW, s 50 sets out that a plaintiff whos capacity to exercise CARE AND SKILL was impaired by SELF-INDUCED intoxication CANNOT claim UNLESS the harm would have been likely to occur despite the intoxication CHECK IF MACKENZIE V NOMINAL DEFENDANT NEEDS TO BE DONE Unlawful Conduct and the Civil Liability Legislation: See NSW CLA s 54 s 54A for example deals with serious offences committed by mentally ill patients It prevents criminals for recovering for injuries received whilst executing a crime Limitation: o FIND OUT WHAT ITS CALLED AGAIN o When you expressly withdraw your involvement in the criminal conduct (has to be explicit) o AND if you take steps to dissuade your partner/associate in the criminal activity to stop Miller v Miller decided that you cannot dissuade your partner/associate in cases of driving Limitation Periods: The defendant can prove that the time taken for the plaintiff to commence a claim was too long as a form of defence The limitation period sets a period of time within which the plaintiff must commence court proceedings to make a claim 3 years after date of discovery Limitations Act 1969 o The date where the plaintiff ought to have known that they were injured/wrong They must take reasonable steps to discover the injury 12 years after the act that caused the injury Recreational Activities Under the CLA Legislation: In NSW, defendants are not liable for the materialization of an OBVIOUS RISK arising from a dangerous recreational activity o CLA s 5F

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FALLAS V MOURLAS Fallas, the defendant, accidentally shot his friend, the plaintiff, while hunting kangaroos by spotlight. The defendant was shot in the leg and sued the plaintiff for damages. The defendant relied on s 5L in the CLA to assist his argument (no liability from harm suffered from obvious risks of danger) FOR REFERENCE TO THE CLA LOOK AT THE ACTUAL CASE (IT IS PROVIDED IN THE CASE) 1. Determining whether a particular recreational activity is a DANGEROUS RECREATIONAL ACTIVITY o In order for something to be a dangerous recreational activity, the activity had to involve a significant risk of physical harm He stated significant means more than trivial and does not import an undemanding test of foreseeability laid down in Shirt Basten JA also stated that the seriousness of the harm may be taken into account i.e. a type of harm with potentially catastrophic consequences may have a low probability of materialising, however, due to the catastrophic consequences, the harm could still be significant o In considering this question, regard is to be had only to the activities ordinarily involved in that particular recreational activity and not to the particular undertaken by the plaintiff However, factors such as the time, place, age etc. MAY make an activity dangerous that wouldnt be dangerous in other circumstances o However, a precise definition cannot be formulated 2. Ipp JA also pointed out that the significant risk that makes an activity a dangerous recreational activity may be an ENTIRELY DIFFERENT RISK FROM THE RISK (which may be obvious or not) THAT ACTUALLY MATERIALISES o However, in order for the defence to apply, the risk that materialises MUST STILL BE OBVIOUS 3. Negligence and gross negligence o He stated that for s 5L to apply, there had to be an element of negligence from the defendant otherwise no liability would exist anyway o However, s 5L should NOT apply in cases of gross negligence (negligence to an extreme degree) since risks caused by gross negligence are NOT obvious 4. THE CASE o In this case, the shooting happened as the defendant was playing with the gun while in the car o 1. Whether there was a significant risk of physical harm in engaging in that particular limited activity (i.e. not actually hunting)

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By taking into consideration these circumstances of the case: Limited experience Late at night Long hours of driving Alcohol o Their concentration could NOT have been at the optimum level Therefore there WAS a significant risk that one of the men may handle a firearm negligently while entering/leaving the vehicle causing someone to be shot Therefore the activity COULD be classified as a dangerous recreational activity o 2. Was the risk that materialised an OBVIOUS RISK The plaintiff asked the defendant a number of times to make sure that the gun was not loaded and to point the gun outside just in case but the defendant did not comply while fiddling with the gun Due to these persistent warning and the persistent failure to take steps to ensure safety, the shooting was regarded by Ipp JA as gross negligence and therefore NOT AN OBVIOUS RISK Therefore, no defence and judgment for the plaintiff General Notes: Doubleday v Kelly (a 7 year old attempted to roller skate on a trampoline and was injured) stated that when determining an obvious risk s5F: o The risk needed to be obvious to a reasonable person in that position of that person Therefore a persons age and idiosyncrasies may be taken into account Damages: The principles governing damages derive from a mixture of common law and statutes Compensatory Damages: o Compensation is the reparation of a wrong by provision of a sum of money (damages) o When awarding a fair amount of compensation, the court must take into account both financial and personal loss o Clearly, the value of personal loss is impossible to calculate and so an estimate is needed This is fraught with difficulty Exemplary, Punitive and Aggravated Damages:

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o Exemplary damages (also known as punitive damages) have been a key part of tort law since the 18th century with the purpose of deterrence and punishment o They are given in addition to compensatory damages o However, they are the exception rather than the rule in most cases In fact in NSW, they are prohibited under the CLA s 21 o Aggravated damages are directed at restoration of the plaintiffs dignity They too are prohibited by s 21 of the CLA Nominal and Contemptuous Damages: o Nominal damages are small sums awarded in recognition that a plaintiffs rights have been invaded but no damage has been sustained These cannot be awarded in negligence Basic Principles in Compensatory Damages Awards: There are a number of basic principles underlying compensation: Fault: o Fault is central in almost all torts It provides legal and moral justification for the transfer of resources from the defendant to the plaintiff The Compensatory Principle: o The primary principle underlying damages is compensation to restore the plaintiff to the position they would have been in but for the defendants wrongdoing The Once and For All Rule: o The damages should be awarded once and forever (i.e. a lump sum) The court cannot make periodic payments to the plaintiff Damages Awarded Unconditionally: o The Court has no concern with the manner in which the plaintiff uses the sum awarded to him TODOROVIC V WALLER The plaintiff, in his thirties, suffered brain damage, rendering virtually unemployable Murphy J highlighted his displeasure with the Courts trend to depress damages and shift much of cost of serious accidents to the injured person LIM PO CHOO V CAMDEN Lord Scarman also expressed the need for a reform in the law because damages awarded by the Courts will always be either too high or too low if a lump sum award is to be given since the future cannot be predicted Assessment of Damages: Date of Assessment:

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o A plaintiffs entitlement to damages arises when the harm is sustained o However, when an action is for personal injury, wrongful birth and wrongful death, the date of assessment is at the date of trial commencement Recoverable Heads of Loss: o There are three general heads of loss identified by Australian courts: 1. Non-pecuniary loss i.e. losses such as pain and suffering, disfigurement, loss of limbs, loss of sense etc. 2. Loss of earning capacity both before and after the trial 3. Actual financial loss o These damages are separated into two categories, special and general damages Special deals with economic loss both past and future General damages dealing with non-economic loss such as pain and suffering etc. Damages for Economic Loss: Pass Out of Pocket Expenses: o All reasonable medical treatments and expenses relating to the injury Loss of Earning Capacity: o Refers to income that the plaintiff would have earned but now cannot earn as a result of the injury, both past and future SHARMAN V EVANS The defendant appealed against the dismissal of his appeal from a verdict for $300,000 in favour of the plaintiff The plaintiff (then aged 20) was involved in a car accident. She suffered serious injuries and is now a quadriplegic and due to existing epilepsy, was unable to speak A number of issues arise when determining damages: o 1. The great increase in the cost of future nursing care should the plaintiff be cared for at home rather than in hospital o 2. The difficulty in assessing compensation for the plaintiffs loss of future earning capacity o 3. The doubts as to the plaintiffs life expectancy The Court made it clear that double compensation should be avoided o This may occur in this case when the plaintiff is compensated for the cost of her future board and lodging in both her compensation for loss of earning capacity in full and in her medical and hospital expenses compensation The Court also pointed out that compensating for gross loss rather than net loss should be avoided o i.e. if a plaintiff is compensated for total loss of earning capacity without making allowance for the cessation of particular outgoings that will be stopped due to the injury such as transportation to and 55

from work and clothing suitable for work it would amount to gross loss rather than net loss The Court also grappled with the question of lost years or lower-life expectancy o For this, the court can award extra damages for the loss of prospective happiness felt by the plaintiff for loss of life expectancy and for the loss of earnings that may be present if the plaintiff would have been working at the time of loss of life The amount for this tends to be quite small The plaintiffs maintenance expenses should be deducted from this in order to avoid over compensation o HOWEVER, THE PLAINTIFF DOES NOT INCUR ANY EXPENSES WHEN HE/SHE IS DEAD THEREFORE WHEN CALCULATING LOST EARNING CAPACITY, LIFE EXPECTANCY SHOULD BE TAKEN INTO ACCOUNT THE AMOUNT OF DAMAGES WILL BE REDUCED BASED ON THE NUMBER OF WORKING YEARS IS EXPECTED TO BE LOST DUE TO THE NEW LIFE EXPECTANCY o E.g. if the plaintiff is expected to live for another 10 years but if the accident hadnt occurred, he would be able to work for another 20 years, only 10 years of damages would be paid for lost earning capacity Loss of Entitlements: GRAHAM V BAKER The plaintiff was compulsorily retired from his job as a fire station officer because of injuries caused by the defendants negligence. However, the plaintiff received 178 days of sick pay before retiring. The Court excluded the sick pay in its calculation of lost earnings so that the plaintiff received damages for loss of wages during the 178 day period as well as the sick pay. The defendant appealed this decision. The Court believed that any pension payments given to the plaintiff after the accident were independent and not to be taken into consideration in a reduction of damages However, sick pay is different because: o Sick pay still constitutes wages payed by the employer to the employee o A plaintiff is compensated for a loss of earning capacity, but if he continues to earn the same wages after the accident, there can be no loss and therefore no compensation for that period Judgment for the defendant and the compensation should be reduced Other Notes:

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 s 12 of the CLA states that no persons loss may exceed 3 times the amount of average weekly earnings, thereby placing a cap on damages awarded Certainty and Proof of Loss: How can a court determine what may happen in the future? Loss of chance is sometimes used as a question of assessment of damages o In this situation, proof does not have to reach the balance of probabilities standard: MALEC V JC HUTTON PTY LTD The plaintiff was employed as a labourer in a meatworks from 19721980. He contracted brucellosis, a disease carried by animals. The disease may lead to degeneration of the spine and possible depression. The Supreme Court of Qld awarded him $19468.54 in damages after finding that the disease had been contracted as a result of the companys negligence. The plaintiff also suffered from a neurotic condition that may or may not have been spurred on by the brucellosis. The trial judge found that by 1983, acute brucellosis was no longer present but since May 1982, the plaintiff had suffered from a degenerative spinal condition that may or may not have been caused by the brucellosis. They refused to award damages after 1982, but increased the damages to $36,928.47 due to the neurotic condition. The plaintiff appealed to the High Court to increase damages by taking into account the loss after May 1982. The balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact (i.e. more probable than not Lord Diplock), that fact is accepted as having certainly occurred o i.e. the balance of probabilities is used for past occurrences However, in matter of making an assessment of damages of future loss, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances in the amount of damages which it awards o i.e. the balance of probabilities is NOT used for possible future occurrences In this case, the Court estimated the degree of probability: o Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. General Notes on Loss of Chance: In Gregg v Scott a plaintiff originally had a less than 50% of surviving for 10 years with cancer. However, due to the defendants negligence in diagnosing the cancer, his chance of survival fell even further. However, given the balance of probabilities (applies to past facts), the plaintiff could

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not recover since the Court held that he would not have survived anyway (since his original chance of survival was less than 50%) Malec sets out the principle that once the liability threshold has been reach by proof of facts, the likelihood of a given future contingency or hypothetical event occurring is reflected in the damages, that is, the notional full sum will be discounted by the percentage change of that future contingency eventuating Discounting for Vicissitudes or Contingencies in Assessing Loss of Earning Capacity: The plaintiffs damages for loss of earning capacity must be discounted for contingencies of vicissitudes (CLA s 13) This is consistent with Malec o Discounting for vicissitudes means allowing in the award for the ups and downs of everyday life such as prospects of promotion, future educational opportunity, likelihood of unemployment/imprisonment, period of working life remaining, marriage etc. WYNN V NSW INSURANCE MINISTERIAL CORP The plaintiff was injured in a motor vehicle accident in 1986. She was awarded $990,547.30. The award took into account the fact that she had been injured in another motor vehicle accident in 1972. As a result, the defendant had undergone surgery to stabilise a fracture and dislocation in her spine. The defendant appealed and successfully reduced the damages to $678,334.70. Part of the reduction was based on saved outgoings for child-care and domestic assistance that would have been necessary had the plaintiff continued to work. The plaintiff appealed to the High Court. The district Court Judge: o Assumed that the plaintiff would continue working at American Express till she was 60, assuming that maternity and marriage would not come in the way of her job since she had already made it to director and was ambitious o The lost earnings (wages at American Express wages at Family Business) were then discounted at 5% for the vicissitudes of life and a figure of $705,980 was given for future economic loss The 5% included an allowance for maternity leave, the small chance of illness, the chance that her previous injury may have cut her working life short and the positive all contingencies are not adverse: all vicissitudes are not harmful Windeyer J prospect that she may have been promoted Court of Appeal: o In addition to the discount of current earnings from her lost earnings, the Court discounted $125 per week for superannuation contributions and the cost of child care and domestic help that would have had to expensed the accident not happened

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The High Court believed that Child Care was a necessary prerequisite that may be incurred whether or not the childs mother is in the paid workforce Therefore it should not be deducted when calculating loss of earning capacity o The Court also discounted 28% for the vicissitudes of life 8% for maternity leave Was ruled unfair by the High Court since it was not balanced against the probability of promotion as the District Court Judge had done 20% because the plaintiff would have had to choose a less demanding job due to the heavy demands of childcare etc. However, the High Court believed that there was nothing to suggest that the appellant was any less able than any other career oriented person to balance the demands of a career and a family o Especially considering her rapid rise and ambition o The Court believed that there were 4 main vicissitudes: Sickness Accident Unemployment Industrial Disputes The general rule is to start with a 15% discount for vicissitudes and adjust this based on the circumstances of the plaintiff o None of these particularly affected the plaintiff o Therefore a 5% discount is not unreasonable (ignoring the chance that the previous injury might cut the plaintiffs work life short) By taking into account the previous injury the appropriate discount reached by the High Court was 12.5% MACARTHUR DISTRICTS MOTORCYCLE SPORTSMAN V ARDIZZONE On 15 August 2003 the Trial Judge awarded the plaintiff $242,000 for injuries sustained on 6 April 1997 while he was participating in a motor cross race at a motor cross track at Appin. The defendant controlled the track and the event. The plaintiff was 12 at the time and he had already had 5 years experience riding in motor cross events. The injury arose when the plaintiff fell after landing from a jump and was subsequently run over by another participant. The issue was whether there were enough Martials during the race. Hodgson summarised the CLA s 13:

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o 13(1) requires the assumptions made about the plaintiffs future earning capacity to be the most likely future circumstances but for the injury o 13(2) requires an adjustment of the amount of damages for future economic loss to be adjusted by reference to the percentage possibility that the events might have occurred but for the injury o 13(3) requires the court to state the relevant percentage by which the damages were adjusted as well as the assumptions (views about what the future economic situation of the plaintiff would have been but for the injury) on which the award was based Hodgson also believed that the wording in the CLA was inconsistent with the principles set out in Malec o In Malec the Court would deduct based on probabilities of future outcomes o The CLA s 13(2) implies that damages should be awarded for the most likely circumstance and then a deduction of 15% should be made for vicissitudes He also stated that the wording of s 13(2) seemed unable to account for cases where the vicissitudes could INCREASE the size of the award o adjust the amount of damages by reference to the percentage probability means that the adjustment can only be downwards since it is impossible to have an amount greater than 100% New Economic Needs Created: Past and Future Care Costs Entitlement under this head of loss refers to the creation of a need which must be paid for such as medical, hospital, nursing, physio and ongoing care costs: SHARMAN V EVANS In this case, Gibbs and Stephen discussed whether the plaintiff should be compensated for nursing and care at her home (which would be fairly expensive) or for care at a hospital (much cheaper) o They concluded that the expense that is required to be compensated is what should the plaintiff reasonably incur In order to determine this, the benefits of one option must be weighed against the costs of that option If one outweighs the other, then the choice is clear o In the present case, the cost of home care more than triples the cost of hospital care o Moreover, the benefit of home care is nothing more than enjoyment of life, not any health benefits Therefore the damages should be judged on hospital care o However, when making this decision, it is important to include the loss of the enjoyment and amenities of life that will be incurred by the plaintiff as a result of a life of hospital confinement 60

Gratuitous Attendant Care Services: GRIFFITHS V KERKEMEYER The plaintiff suffered became a quadriplegic as a result of a road accident caused by the defendants negligence. The plaintiff was awarded $249,736 in damages in the Supreme Court. The plaintiff appealed for more damages. Gibbs J stated that it was common for an injured plaintiff to be cared for by a family member or a close friend o This may place both financial loss and emotional/physical burden on the family member Financial loss the family member may have to reduce his/her hours or give up work However the financial loss incurred by the gratuitous individual is NOT compensated o RATHER, THE COMPENSATION IS GIVEN FOR THE LOSS SUFFERED BY THE PLAINTIFF NOT THE GRATUITOUS INDIVIDUAL o Gibbs J believed that where gratuitous services have been provided by a friend of family member the value of the services provided SHOULD NOT reduce the damages payable to the plaintiff This policy is to ensure that the charitable friend/family member is not unfairly saddled with the loss and to ensure that the wrongdoer is the one who must burden the loss Restrictions on Awards for Gratuitous Attendant Care: Research conducted showed that awards for gratuitous services comprised of 25% of claims over $500,000 Therefore, the Ipp Report concluded that there should be a limit placed on the amount of recovery of these damages since they are easy to make and difficult to refute No recovery may be made for services that would have been provided irrespective of the plaintiffs injury and there must be a reasonable need for the services: o NSW CLA s 15 Damages for Loss of Capacity to Provide Domestic Services to Others: Another issue is whether a plaintiff can recover damages for domestic services which he/she would normally perform but is no unable to do so, burdening other family members with extra obligations In NSW, such damages are recoverable for example: o Sullivan v Gordon a plaintiff was injured when she was 15 and went on to have children but was unable to care for them without childcare She was compensated for the costs of childcare Although the decision was overturned by the High Court in 2005, the decision was restored by statute in NSW in 2006 through new provisions in the CLA 61

 s 15A and s 15B o For overview of section 15B see 573 Present Value Discounting: Plaintiffs are advantaged by the lump sum payment since they can use the left over income and invest it to generate additional income Therefore, the damages are discounted to their present value to adjust for this o Present value discounting is not applicable to general damages (non economic loss) The discount rate is currently 5% as part of the CLA s 14 NOTE: Present value discounting is separate to vicissitudes discounting NOTE: Present value discounting is negative compound interest whereas vicissitudes discounting is negative simple interest Collateral Source Rule: CHECK IF NEEDED Damages for Non-Economic Loss: General Damages Definition: NSW CLA s 3 SKELTON V COLLINS The plaintiff (19) suffered severe brain damage as a result of the defendants negligence and was likely to remain unconscious in hospital until his death, expected within 6 months from the date of the trial. The trial judge awarded the plaintiff lost wages up to the date of the trial, future hospital costs for the 6 months and future loss of earning capacity for the 6 months. 1500 pounds was added in general damages and 25% was discounted for contributory negligence. The plaintiff appealed on grounds of inadequate compensation. The main issue in the case was not the loss of earning capacity but the 1500 pounds of general damages o Kitto J agreed with the trial judge that the 1500 pounds should NOT include general pain and suffering since the plaintiff was unconscious and was likely to be unconscious until his death o The 1500 was to be given for: A loss of expectation of life A loss of amenity during his reduced life span o Kitto J referred to a number of authoritative cases with similar facts Of particular importance was Lord Morris in H West & Sons Ltd v Shephard In this case, Morris stated that an unconscious person will be spared pain and suffering and will not experience the mental anguish which may result from knowledge of what has in life been lost from knowledge that life has been shortened Therefore the unconsciousness will eliminate the pain and suffering head of loss 62

What must be compensated is the ordinary experiences and amenities of life have added up to if the plaintiff had not been cut off from them This is extremely difficult to put a just and fair figure on Therefore Kitto J relied on the Benham v Gambling principle which states that it is impossible to select any substantial amount of damages for compensation for the loss of years living (distinguished from mental anguish due to realisation of loss = irrelevant here since the plaintiff is unconscious) and feel a just amount has been given Therefore no changes were made to the sum of 1500 pounds

SHARMAN V EVANS In Sharman Gibbs and Stephen JJ also emphasised that the compensation for shortening of life expectancy was for the loss of prospective happiness not for the mental distress due to the realisation of the loss o They believed that the compensation for this should be a very moderate amount However, in regards to pain and suffering and the loss of enjoyment and amenities of life the court had a different view o They believed that it was impossible to aim for a perfect amount of compensation for this type of loss since it depended on a number of factors that couldnt be monetised o Substantial awards may be given under this head Thresholds on General Damages: The CLA imposes a number of thresholds on general damages In NSW see s 16 o $350,000 s 27(a) o $350,000 NSW s 17 NSW employs a sliding scale o See s 16(3) Additionally, s 16(1) states that no damages may be awarded for noneconomic loss unless the severity of the non-economic loss is at least 15% of the most extreme case: SOUTHGATE V WATERFORD READ IF NECESASSRY TALKS ABOUT THE POLICY REASONS FOR A FIXED MAXIMUM FOR GENERAL DAMAGES AND THE MOST EXTREME CASE RULE WOOLWORTHS V LAWLOR The 56 year old plaintiff claimed damages for injuries sustained by her on September 2001 when she fell due to the malfunction of a moving 63

walkway. Liability was admitted. The Trial Judge awarded damages of $219,536.60. Additionally, the Trial Judge determined non-economic loss to be 30% of the most extreme case. The Court recognised that the age of the plaintiff COULD be a factor in determining the percentage of a most extreme case o For example, an identical injury suffered by a 64 year old and a 30 year old would suffer in terms of a percentage of a most extreme case since the 30 year old would: Have to experience the pain for a longer period of time due to a longer life expectancy She would have a larger number of responsibilities that she could no longer complete In the current case: o The plaintiff had a life expectancy of another 30 years o The condition was not likely to improve o The condition was such that it affected all aspects of her personal life (spinal condition) o Constant pain and medication Therefore a 30% figure is appropriate Interest on Damage: Interest on damages are available in NSW in the Supreme Court Act 1970 s 94 o However, the CLA acted to limit and regulate the award of interest in s 18(1) Compound interest is prohibited The purpose of interest is to ensure that the plaintiff is placed in a position that he would have been had the amount of damages been paid to him at the commencement date No interest is to be awarded for non economic loss No interest is to be awarded for gratuitous service awards Griffiths NOTE: Interest is paid only in the period between the injury and the date of judgment Qualifications of the Compensatory Principle: Mitigation: o British Westinghouse established that plaintiffs owe a duty to defendants to take reasonable steps to mitigate (minimise) their losses Viscount Haldane stated that the principle prevents plaintiffs from claiming any part of the damage which is due to their own neglect to take such steps The steps taken must be what a ordinary, prudent man would take o Cases may arise where plaintiffs refuse to undergo medical treatment: GLAVONJIC V FOSTER

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 The plaintiff was involved in a collision in 1976. The plaintiff was on his way to work when he was struck by a car and was rendered unconscious for 15 minutes and taken to hospital. The plaintiff refused to undergo brain surgery later in 1976. If the medical operation may alleviated a plaintiffs condition and it is reasonable for him to undergo the operation, the damages must be assessed on the basis that he did undergo it o This is the duty for the plaintiff to mitigate his damages However, the onus is on the defendant to prove that the plaintiffs injuries could be mitigated by medical treatment When determining whether a reasonable man would have accepted the treatment: o Factors such as the anxiety and shock the plaintiff was in at the time due to the accident MAY BE CONSIDERED o Individual peculiarities/mental states MAY NOT BE CONSIDERED since the standard is an ordinary, reasonable man o Whether the plaintiff was made aware of the choices and consequences available to him MAY BE CONSIDERED o HOWEVER, THE FINAL TEST IS WHETHER A RAESONABLE MAN IN THE CIRCUMSTANCES OF THE PLAINTIFF WOULD HAVE REFUSED/ACCEPTED INJURY Therefore factors such as: Poor education Language barriers Previous history with operations/treatments Taxation: o Awards of damages for personal injury are exempt from income tax Wrongful Death: Survival of Actions to the Estate o The estate of a person killed retains any cause of action the deceased would have if alive However, certain things cannot be claimed: Loss of earning capacity post-death o Contributory negligence CAN STILL BE CLAIMED AGAINST THE ESTATE CLA S 5T(1)

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