NEGLIGENCE Notes

Introduction

Negligence has been so pervasive, that it has transformed even the strict liability tort of trespass, such
that fault is required. The case of Stanley v Powell [1891] 1 QB 86, it was held that where there is no
intent, and negligence is negatived, the plaintiff cannot recover whether he framed the action in
trespass or case. Thus, it has been a unifying force in tort law, by requiring fault before liability is
imposed.

However, it has also had a counter-balancing potential, as by expanding liability laterally, it has made
the question of causation more complex - extending it to omissions, and other more complex
connections which weren’t ever envisaged by the tort of trespass. Further, the concept of fault,
introduced to provide interpersonal justice, has now expanded to consider questions of social needs,
distributive justice and stricter liability. With the mid-20th Century, the law of tort has become more a
tool to compensate accident victims, and distribute cost among those best able to bear it, than an
admonitory tool. Thus, the lack of consensus as to the purpose of tort law, and its relative inability to
cope with the question of accident compensation in a welfare-driven society has meant that the system
is under constant stress.

DUTY OF CARE

Introduction

Negligence is the breach of a legal duty of care by an inadvertent act or omission which injures another
person.

The Elements

Negligence involves:

A duty of care - the D owed the P a duty to take care in the circumstances.

A breach of that duty - the D’s act/omission failed to reach the standard of carefulness required by the
circumstances and so there is a breach of the duty to take care.

Causation - the D’s breach caused the P’s damage

Damage - the damage P suffered is legally recognizable and not too remote from the breach of duty.

Donoghue v Stevenson [1932] AC 562 established the tort of negligence. Lord Atkin saying that “In
English law, there must be and is some general conception of relations giving rise to a duty of care…”
The House of Lords found that the P could recover damages from the manufacturer, even though there
was no contract between the parties, where negligence allowed the snail to enter the bottle. Lord Atkin
enunciated the neighbour principle:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbor.”

Who then is your neighbor?

“Persons who are so closely and directly affected by one’s act that one ought reasonably to have them in
contemplation.”

The Duty of Care

For an action in negligence, the D must owe a duty of care to the P in the given circumstances. Ld Atkin
in Donoghue v Stevenson [1932] AC 562 said:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who
are so closely and directly affected by my act that I ought reasonably to have them in contemplation as
being so affected when I am directing my mind to the acts or omissions which are called in question.”

Thus, the test to establish a duty of care is:

(i) reasonable foreseeability

(ii) proximity (or the tests which have replaced it) where there isn’t an established duty of care.

The Notion of Reasonable foreseeability

The duty of care is primarily premised on reasonable foreseeability, as no liability will arise in its
absence. This is a question of law, and in standard cases, such as motor accidents, manufacturers of
defective goods and so on, the foreseeability of harm where there is a lack of care, it is obvious in the
circumstances, and the precedents are well-established, and it is not an issue.

Reasonable Foreseeability as an Essential Test for Duty

Nova Mink v Trans Canada Airlines [1951] 2 D.L.R. 241 During whelping season, mink, they are prone to
devour their young when frightened by noise. The Court held that once the defendant is “apprised” of
this harm, they may be required to alter their activities such that the risk is reduced or eliminated - that
is desist from flying low over the ranch - to show that reasonable care had been taken.
Palsgraf v Long Island Railway Co. (1928) 162 N.E. 99 The plaintiff was standing on the platform to
catch a train, when another man jumped onto a train as the doors were closing, and got caught between
the doors. The train guards pushed him into the train, and in the process, a paper package of fire
crackers fell under the train, the impact causing an explosion. As a result, scales toppled over, and
injured the platform . The Court held that the plaintiff was not reasonably foreseeable, as they were at
the opposite end of the platform. That is, they were beyond the range of reasonably foreseeable peril. It
was held that “the victim does not sue derivatively or by right of subrogation to vindicate an interest
invaded in the person of another….he sues for breach of duty to himself.” That is “a wrong to another
cannot be the basis of the plaintiff’s claim and even less a wrong to a mere property interest.”

The Scope of Reasonable Foreseeability

Chapman v Hearse (1961) 106 CLR 112 Chapman, due to his negligent driving was involved in an
accident, on a dark and gloomy night. His vehicle had turned over, and he was thrown onto the highway.
A Dr Cherry whilst in the process of helping him, was struck by Hearse, and killed. The question was
whether Chapman was contributory negligent. Chapman argued that it was not reasonably foreseeable,
as it was not reasonable to foresee that Dr Cherry would have come been struck and killed in rescuing
Chapman. However, the Court held that it was “a consequence of the same general character that was
reasonably foreseeable as not unlikely to follow a collision on a dark, wet night upon a busy highway” (at
120). That is, it is not necessary to foresee the precise sequence of events, just that something of the
general character is reasonably foreseeable in - that is they are a sequence of events which are not
unlikely in the circumstances. It was held that it was reasonably foreseeable that a person aiding others
in an accident could be injured themselves. All that is required is that consequences of the same general
kind are not unlikely.

The Concept of Proximity

With Jaensch v Coffey, a new element of negligence was required to establish a duty of care in cases
where there isn’t an established duty of care, there is a requirement of proximity between the parties,
for negligence to lie. However, this has increasingly been put in doubt in the cases of Hill v Van
Erp and Perre v Apand, where the HC has raised grave doubts as to its usefulness as a universal
determinant of a duty of care.

Proximity at its Height!

Jaensch v Coffey (1984) 155 CLR 549 Deane J cited Lord Atkin’s explanation that where there is a chance
for intermediate examination, of the bottle before it reached the consumer, then there was no longer a
requisite ‘proximity’ and that the consumer is no longer within the class of ‘neighbours.’ That is Deane J
cited that Lord Atkin stated that the duty of care based on reasonable foreseeability would be too wide
unless restricted by the notion of proximity. The plaintiff’s husband had been injured due to the
defendant’s negligence, in a motor cycle accident. The plaintiff, having seen her husband struggling for
life in the hospital, developed severe anxiety and depression caused by her worry about her husband’s
state of health over a period of weeks. Mrs Coffey argued that it was reasonably foreseeable that a
spouse would suffer psychiatric disability as a result of injury to her husband. However, the Court held
that reasonable foreseeabilty alone was too broad a principle. However, it was held that Mrs Coffey’s
involvement at the hospital when her husband was injured, in the aftermath was sufficient to satisfy
proximity requirements. It was developed as a limitation on the neighbour principle. The question is
what is involved in the notion of nearness and closeness. The HC held that there were three kinds of
relationships, which fulfilled this:

(i) physical proximity (in the sense of space and time)

(ii) circumstantial proximity, such as an overriding proximity

(iii) causal proximity.

Cook v Cook (1986) 162 CLR 376 The D was a learner driver, whom the plaintiff invited to drive with him.
The P was injured in an accident due to the negligence of the P - the P had accelerated instead of
braking when faced with a dangerous situation. The HC held that whilst the duty of care owed to general
motorists is the same as those for other motorists, as the plaintiff knew of the skill levels of the plaintiff,
and accepted the risks, the defendant, in relation to the plaintiff will be judged according to the
standards of a reasonable learner driver. However, the plaintiff was still successful, as it was held that
the defendant’s negligence was so egregious that it did not satisfy the duty of care required of a
reasonable learner driver.

Gala v Preston (1991) 100 ALR 29 Preston and Gala were part of a group of four youths, who after
having consumed a good deal of alcohol, stole a car and crashed it. Preston was hurt in the crash, and
sued Gala for negligence. At first instance, there was a judgement for him, however, this was reversed
by the Full Court of the Supreme Court of Queensland. On appeal to the HC, Mason CJ, Deane, McHugh,
Gaudron JJ held that the parties were not in a relationship of proximity such as to give rise to a relevant
duty of care, since it was not possible or feasible for a court to determine what was an appropriate
standard of care to be expected of the first appellant as the driver of the vehicle. Brennan, Toohey and
Dawson JJ, in separate judgements, found that Preston would be unsuccessful, for different reasons.

Nagle v Rottnest Island Authority [1993] 112 ALR 393 Nagle was injured when he dived off a partially
submerged rock ledge in the Basin, in Rottnest Island. His injuries were caused when he struck himself
on one of the rocks which were adjacent to the platform, and below the low water mark. Rottnest Island
Authority was was under a statutory duty to manage and control for the benefit of the public the public
reserve on the coast of the Island. That reserve adjoined the Basin. It promoted the Basin as a swimming
venue, and encouraged the public to use it for that and other purposes by installing, maintaining and
servicing various facilities on that part of the reserve which was immediately adjacent to the Basin.
Brennan J dissenting, allowed the appeal by Nagle on the basis that :

(i) The respondent brought itself into a relationship of proximity with those visitors who
lawfully visited the Island and resorted to the Basin for the purpose of swimming with respect to any
foreseeable risks of injury to which they might be exposed. This was a case in which it was possible to
ascertain the existence of a generalised duty of care without looking to foreseeability, a concept which
in many other situations is the influential, if not decisive, determinant of the existence of a relationship
of proximity.

(ii) The giving of a warning that the ledge was unsafe for diving was the action that a reasonable
person in the respondent’s situation would have taken to guard against the foreseeable risk of injury
which existed.

(iii) The likelihood was that the appellant would have been deterred from diving by an
appropriate warning sign.

Bryan v Maloney (1995) 69 ALJR 375 Bryan, a professional builder for the Qs, who sold it to Mrs
Maloney, who upon inspection, found nothing to be wrong with the property. However, within 6
months, there were cracks in the house, and extensive damage was suffered. The damage was caused
because Bryan hadn’t laid the footings properly. Mrs Maloney was successful at first instance. On appeal
to the HC, the question was whether the relationship between Bryan and Mrs Maloney was sufficiently
proximate to attract liability. The Court held that as a house is the most significant investment a buyer it
is reasonably foreseeable that the builder’s negligence would cause economic loss not only to the first
buyer, but also to subsequent buyers. Further, it was held that there was a causal proximity between
subsequent buyers and the builder. It was held that the relationship between the builder and the
subsequent owners was comparatively similar to that between the builder and the original owners. The
HC held that had the building collapsed and caused personal injury or property damage, the builder
would be liable, so there is no reason why the builder should not be liable for the economic loss
incurred in rectifying the situation. The builder argued that allowing liability to be incurred would cause
an indeterminate liability. However, the HC held that this was not so, as the builder would only be liable
once, after which the building is fixed. Thus, a new, novel tort liability of economic loss for a subsequent
loss to a subsequent owner due to a builder’s negligence was found. It is worth noting that Brennan J
found the notion of proximity to be too elastic to provide any real test.

Proximity Downgraded/Abolished

Hill v Van Erp (1997) 71 ALJR 487 Hill drew up Mrs Curry’s will and got Mr Van Erp to witness the will,
which included Mrs Van Erp as one of the beneficiaries. However, s 15(1) of the Succession Act 1981
(Qld) states that where a beneficiary’s spouse witnesses the will, then, that disposition is null and void.
So, the bequest Mrs Curry had left Mrs Van Erp went to Mrs Curry instead, and Van Erp sued Hill for
negligence. Hill admitted the negligence, but argued that she did not owe a duty of care. At first
instance, Mrs Van Erp was successful. In dismissing the appeal by Hill, the HC took the opportunity to
downgrade the significance of proximity. Dawson J (with whom Toohey J concurred) stated that:

(i) proximity is:

- not a unifying principle

- not a universal determinant of the existence of a duty of care.

However it:
- expresses a result, rather than a process

- and is a convenient way of labeling the extra requirement, in addition to reasonable foreseeability to
establish a duty of care.

(ii) Further, he put forward a three stage inquiry in order to establish a duty of care:

(1) Is the harm reasonably foreseeable? Noting that more than reasonable foreseeability alone is
required.

(2) Where a new category of liability is suggested, examine established categories by way of analogy to
achieve incremental development.

(3) Determine whether the incremental development is justified by reference to policy considerations.

(iii) He held that imposing liability on a solicitor was consistent with community standards, and further,
that liability was not undeterminant. It was held to be determinant by the contents of the will. Further,
it does not conflict with contractual obligations, as contractual and tortious liability can be concurrent.
Further, he held that there needs to be special consideration in relation to wills, as the defects will not
become apparent until after the death of the testatrix. The specificity of the the situation with regard to
wills in relation to beneficiaries distinguishes it from other third parties. It was held that finding the
solicitor liable in such a situation does not curtail their legitimate pursuit of commercial advantage. It
was further held that the community relied on solicitors as specialists.

This decision brought Australia in line with other common law countries

Perre v Apand (HC) [1999] 73 ALJR 1190 Apand was the distributor of potato seeds, and had negligently
provided seeds diseased seed to the Sparnons - the owners of the property next to the Perres. They
produced a crop infected with bacterial wilt. Whilst the Perres crop was not infected, they exported the
bulk of their crop to WA, where there was legislation prohibiting the sale of potatoes grown, harvested,
packed or cleaned anywhere within a 20 km radius of where the infected crop was. The Perres sued
Apand for damages for negligence. It was not disputed that the loss suffered by the Perres was
reasonably foreseeable and the evidence revealed that Apand knew persons such as the appellants
would be liable to suffer economic loss in the event of an outbreak of bacterial wilt.

Apand argued that imposing a duty of care in this situation would impose an indeterminate liability for
an indeterminate time and to an indeterminate class of persons. Further, they argued that a duty to take
care to avoid economic loss to another was inconsistent with commercial standards, these being that
one is free to gain an economic advantage. However, the Court held that there was a determined class
of people - those within 20 km radius of the affected property, and that it did not unreasonably deter
economic freedom. The HC allowed the appeal, and in doing so, replaced the notion of proximity with
five different tests:

(1) The protected Interests and salient features test (Gleeson CJ and Gummow J)

(2) Recognised Legal Rights Test (Gaudron J)

(3) Three Stage Caparo v Dickman test (Kirby J)

(4) Incremental Approach (McHugh and Hayne JJ)

(5) Factors in Combination and Incremental approach (Callinan J)

Protected Interests and Salient Features Test

Protected interests are those kinds of detriment the law is willing to protect. E.g:

Exportation sales

Loss of land value

Loss of tenants

Salient features => Must identify the salient features which combine to give rise to a sufficiently close
relationship to attract a duty. E.g:

The defendant’s control over the nature and location of the experiment

P’s inability to take steps to protect themselves against the risk exposed.

The leg’n imposing a 20 km quarantine zone made loss certain upon disease.

Having applied the test to the fact situation, Gleeson CJ and Gummow J found that there was a
sufficiently close and direct relationship between Perre and Apand to attract a duty of care.

Recognised Legal Rights Test

It was noted that the law recognises pure economic loss in some areas already. This states that a duty of
care is established where a person knows or ought to know where their acts or or omissions may impair
the P’s rights, and P is not in a position to protect their own interests. It was held that in such situations,
the law ought to impose a DoC to take reasonable care not to act in such a way as to impair reasonably
foreseeable rights.

Three Stage Caparo v Dickman Test

In order to determine whether a DoC exists, three questions need to be answered:

(1) Was it reasonably foreseeable that conduct or omissions are likely to cause harm to a category of
persons whom P belonged to?

(2) Does a relationship of proximity or neighbourhood exist between the plaintiff and the defendant?

(3) Is it fair, just and reasonable that the law imposes a DoC for the plaintiff’s benefit?
It was held that terms such as “reasonable”, “fair” “proximity” etc. are simply labels to direct the judge
to think about the conceptual framework of negligence actions. None of these should be elevated to the
status of pre-conditions.

Incrementalism

This test was developed as there was a concern with predictability. Are there good reasons to expand
the DoC beyond the existing categories? In order to answer this, three questions must be asked:

(1) Does it come within an est. DoC?

(2) If not, was the harm suffered foreseeable?

(3) If so, the Court should examine analogous cases where the Court has determined whether a DoC
has examined. In doing this, the Court should look at the policy considerations, and the reasoning, and
apply these in the specific case.

This test has been criticized for its temporal specificity.

Combination of Factors and Incrementalism

This test is compendious (slightly incoherent). It was held that courts should move incrementally and
cautiously, and in doing so look at factors such as proximity and foreseeability.

To Whom is a Duty of Care Owed?

Consumers

Donoghue v Stevenson [1932] AC 562 The Court found that there was a sufficiently close relationship
between the consumer and the manufacturer to attract a duty of care. Ld Atkin enunciated the
neighbour principle which stated that there is a requirement to take reasonable care to avoid
acts/omissions which you can reasonably foresee will injure your neighbour. Further, a neighbour was
held to be anyone who is so closely and directly affected by your acts. They are people who you ought to
reasonably have in contemplation when acting or refraining from acting.

Grant v Australian Knitting Mills [1932] AC 85 Dr Grant bought two pairs of underpants and singlets. He
developed an acute rash, and spent three months in hospital as a result, and his doctor feared for his
life. This was caused by an excess of sulphates The HofL, applying Donoghue v Stevenson found that the
manufacturer was liable. The manufacturer argued that there was no duty of care, as there was an
opportunity for intermediate examination. However, the HofL held that as the defect was latent, Dr
Grant couldn’t reasonably be expected to know of the defect, and further, as the garments were worn
as expected to be worn, there was a duty of care.
Road Users

Bourhill v Young [1943] AC 92 Young, a motorcyclist was killed in a motorcycle accident, due to his
negligence. Bourhill was a bystander, who was standing on the other side of a tram when the accident
occurred. He sued Young’s estate for nervous shock resulting from the accident. The HofL held that
whilst Young owed a duty of care to many, there was no such duty towards an unseen bystander.

Users and Purchasers of Premises

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 Before this case, the duty of care owed to
users of premises differed upon the category of the user. For example, a different duty was owed to
invitees compared to that owed to a trespasser. In this case, Zaluzna, upon entering Safeway store in an
affluent Melbourne suburb, slipped and fell on the floor, as a result of the floor being damp. She sued
the store. The HC held that occupiers have a general duty to take reasonable care to safeguard from
injury to those who enter the land. The Court further held that the distinction between invitees,
licencees and trespassers was artificial, and thus, was abolished.

Bryan v Maloney (1995) 69 ALJR 375 This is the case of the builder and the subsequent owner. The
Court held that there was a duty of care despite the fact that the only connecting factor between the
parties was the house.

School Children

Geyer v Downs (1977) 138 CLR 91 An eight year old child was hit on the head with a bat by another child
when they were playing before school. The Court held that the principal of the school owed a duty of
care to its students, and that this is to be fulfilled by providing supervision while the school gates are
open.

The Unborn Child

Watt v Rama [1972] VR 353 The plaintiff’s mother was involved in a car accident whilst pregnant. The
child was born with brain damage as a result of the defendant’s negligence in the accident. The plaintiff
argued that her injuries occurred during the course of the accident, or because of it. The Court held that
the plaintiff was born with injury due to pre natal negligence can sue. It held that the duty of care
involved a duty to take care not to injure a person where it is reasonably foreseeable that the injury will
occur. In the current circumstances, a potential duty exists if and when the child is born. The actual duty
is crystallised when the child is born, and acquires a legal identity.

Lynch v Lynch A mother was found to owe a duty of care to an unborn child who was injured as a result
of injuries caused by her negligent driving. However, the Court restricted the application of such a duty
strictly to the circumstances of the case, as there is a very low threshold which needs to be crossed to
establish a duty of care in motor vehicle accidents.
Rescuers

Chapman v Hearse (1961) 106 CLR 112 The question in this case was whether Chapman had been
contributorily negligent in relation to Dr Cherry’s death, who was struck by Hearse when he was
rescuing Chapman, who was lying on the road as a result of a car accident caused by his negligence. The
Court held that the threshold for establishing a duty of care is low when dealing with a rescuer, and
thus, Chapman was contributorily negligent.

Other Categories

Home Office v Dorset Yacht Co. Ltd [1970] AC 1004 Juvenile offenders housed in a Boy’s Home were
taken on an excursion to an island. Due to the warden’s negligence, some of the boys escaped using a
yacht owned by the Dorset Yacht Co. They sued the Home Office. The Court found that the Home Office
owed a duty of care to those in the vicinity. However, this was held to be confined by the circumstances
and proximity of the said property.

Weeler & Co v Foot and Mouth Research Institute [1965] 3 WLR 1082 GET FACTS!!!!!!!!!!!!

Alcock v Chief Constable of Police[1992] 1 AC 310 There was a disaster at a football stadium when a
stand collapsed due to the negligence of the defendants who allowed it to become overcrowded. 95
people were crushed to death. The game had been televised live at the time. Thus, not only were people
at the stadium witness to this terrible tragedy, but people at home witnessed it on their television
screens. This was a class action for nervous shock. The HofL held that there needed to be a sufficient
relationship of proximity required to give rise to a duty of care. This involved “close ties of love and
affection” as well as some sort of physical proximity in time and space.

Wartime

Shaw Savill v The Commonwealth (1940) 66 CLR 344 This was an action by Shaw Savill against the
Commonwealth for damages for the damage caused to the motor vessel Coptic in a collision between
the HMAS Adelaide and the Coptic. It was held that where an action of negligence is brought against the
Commonwealth for acts done in the course of active naval or military operations against the enemy
must fail.

Legal Profession

Rondell v Warsley [1969] 1 AC 191 and Gianarelli v Wraith(1988) 62 ALJR 611 both held that barristers
are immune from negligence actions for in-court work and this also extends to some out of court work.
This is because it is preferable not to interfere with the judicial process. This immunity extends to
solicitors acting as advocates.
Hall v Simons [2000] 3 All ER 673 In three separate cases, clients brought claims their former solicitors,
which was defended on the basis that they were immune from an action in negligence. The HofL
considered whether the immunity should be abolished, or whether it was still justified on policy
grounds, especially the public interest in preventing collateral attacks on court decisions, and in ensuring
that advocates respected their overriding duty to the Court. It was held that immunity should be
abolished, on the basis that immunity is not required to deal with collateral attacks on civil and criminal
decisions, and that the public interest is satisfactorily safeguarded by independent principles and
powers of the Court. Further, it was held that the immunity was not required to ensure that barristers
respected their duty to the Court. This was based on the fact that doctors, who had both a duty to the
patients and a duty to adhere to an ethical code, are not immune from negligence actions. Further,
experience in other jurisdictions such as Canada demonstrate that such a view is rather pessimistic, and
moreover, there are many benefits with abolishing immunity. These include the end of an anomalous
exception to providing remedy for a wrong committed, and there was no fear of a flood of actions. A
barrister by performing his duty to the court to the detriment of his client could never be called
negligent, and there is no possibility of a finding of negligence where a barrister his conduct was bona
fide dictated by his perception of his duty to the Court.

Hill v Van Erp (1997) 71 ALJR 487 The HC has allowed negligence actions against solicitors in certain,
restricted circumstances.

The Case of the Unforeseeable Plaintiffs

Bourhill v Young [1943] AC 92 In this case, the plaintiff was unable to recover, as it was held that it was
unforeseeable that an unseen bystander would suffer from nervous shock as a result of an accident, and
thus, no duty of care existed.

Levi v Colgate-Palmolive Ltd (1941) 41 SR (NSW) 48 The plaintiff had received a free sample box of
products from the defendants. This included a sachet of bath salts, which the plaintiff used, resulting in
a rash, which lasted for a long time. In determining whether a duty of care existed to specially sensitive
plaintiffs two questions must be asked:

(i) if the D owes a DoC and breaches it, and an abnormal plaintiff by reason of the abnormality suffers
an injury, can they recover on this basis?

(ii) Does the fact that the plaintiff have an abnormality create a special duty of care?

The Court held that the answer to the first question was in the affirmative, and the second question was
negative.
Further, it was held that if the defendant knows of the pliantiff’s abnormality, then a special duty of care
is found. However, no such duty exists in the normal course of events.

Haley v London Electricity Board [1965] AC 778 The plaintiff was a blind man who fell into a ditch dug by
the LEB, as the safety fence they had erected was too low for him to detect it with his cane. The LEB
argued that he was an unforeseeable plaintiff. However, the HofL held that it was reasonably
foreseeable that a blind person would walk along the pavement, and could be injured as a result of
inadequate safety measures.

Mt Isa Mines v Pusey (1971) 125 CLR 383 The plaintiff was an engineer and witnessed two electricians
who worked for the company being electrocuted. The plaintiff went to rescue them and saw the
resulting horrible burns. He developed a psychiatric disorder which was latent when he saw this. The HC
found that he was reasonably foreseeable, despite a pre-existing susceptibility, and he was awarded
damages.

Qualifications to the Duty of Care

Novus Actus Interveniens

Chapman v Hearse (1961) 106 CLR 112 Chapman argued that Hearse’s actions in hitting Dr Cherry
constituted a novus actus interveniens, and thus, he no longer owed a duty of care, as the causal
connection was broken. However, the Court held that it was exactly this sort of action which was
reasonably foreseeable, and thus, there was no novus actus interveniens and Chapman still owed a duty
of care.

The Opportunity for Intermediate Examination

Farr v Butters [1932] 2 KB 606 Crane manufacturers sold a crane, unassembled to builders where a
crane erector would assemble it for the builders. The erector when he was erecting the crane found that
parts of it were ill-fitting, and accordingly marked the areas with chalk. However, before the defects
were remedied, the erector began working on it, it fell on and killed him. It was held that as the defects
were discoverable on reasonable inspection, and having in fact been discovered by the deceased, the
manufacturers did not owe a duty of care.

Grant v Australian Knitting Mills [1936] AC 85 The Court held that there was no opportunity for
intermediate examination in this fact situation, as the excess of sulphates in the underwear were a
latent defect, and it was not reasonable to expect Dr Grant to have discovered this upon examination.

Kinds of Loss

Physical Damage to Person or Property

This is the most straight forward kind of loss, and the Courts are not in the least hesitant to find a DoC in
these situations.

Nervous Shock

Bourhill v Young, Mt Isa Mines v Pusey and Jaensch v Coffey were examples of nervous shock cases.

McLoughlin v O’Brian [1983] AC 410 A mother suffered nervous shock as a result of seeing her family in
hospital. One of the members died due to their injuries. It was held that there is a three stage test to
find for nervous shock:

(i) Does the person fall into a class of persons able to sue?

(ii) Proximity in time and space

(iii) How was the shock caused?

Quayle v the State of New South Wales [1995] Aust Torts Reports An aboriginal man was taken by his
brother to a local hospital, suffering from alcohol withdrawal symptoms. The nurse on duty handed him
over to police even though he had committed no offence. The deceased hung himself in a police cell.
The police asked the brother to identify the body in the back of a police van on a public street. Not only
the brother, but the mother and other brothers were also compensated for nervous shock in the form of
prolonged and pathological grief caused by the police and the hospital’s actions. This case was not
appealed, mainly due to the unwanted publicity it would attract if appealed.

Breach of Duty

The Negligent Act

The Plaintiff must prove that the defendant has breached the standard of carerequired of a reasonable
person. The standard of care is a question law, and whether this has been breached is a question of fact.
The standard is that of a reasonable person. Is the risk foreseeable? There are two main areas which
determine the standard of care, and whether it has been breached:

(i) foreseeability is a necessary, but not sufficient condition for the breach. The D must take
precautions against the risk.

(ii) The calculus of negligence à determines the significance of the risk.

Vaughan v Menlove (1837) 132 ER 490 The defendant’s hayrig caught on fire, and this spread to the
neighbour’s property. This occurred despite the neighbour’s warning of the hazard. However, the
defendant had disregarded it as he believed it wasn’t a risk. The defendant argued he ought not be
responsible where he bona fide did not believe in a significant risk. It was held that it should be assessed
against the other person.
“Negligence is the omission to do something which a reasonable man guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do, or something which a prudent and
reasonable man would not do.”

Blythe v Birmingham Waterworks (1856) 11 Exch 781 per Alderson B the factors which ordinarily
regulate conduct are:

“whether the act or omission in question is one which a reasonable person would recognize as posing
an unreasonable risk must be determined by balancing the magnitude of the risk in the light of the
likelihood of an accident happening, the possible seriousness of its consequences, against the difficulty,
expense or other disadvantage of desisting from the venture or taking a particular precaution.”

Wyong Council v Shirt (1980) 146 CLR 40 The plaintiff was an inexperienced water skier on a remote
lake. Wyong Council had dreged a channel of ddep water to allow boats to get from the edge. They had
put up a notice stating “Deep Water.” Upon seeing the notice, the plaintiff came off his skies, and as a
result, bumped his head on the rock bed and suffered severe injuries as a result. He sued in negligence
for their negligence in erecting the misleading sign. Mason J noted that foreseeability of risk and
likelihood are two different concepts, and foreseeability doesn’t necessarily relate to likelihood. It was
held that a risk is foreseeable as long as it is not “far-fetched or fanciful.” Whethere a reasonable person
in the D’s position would have foreseen a risk to the plaintiff or a class of persons in the P’s position. If
so, the tribunal of fact would ask what a reasonable person in the D’s position would do in response.
The HC found that the jury’s finding against the Council was open to them as “a risk of injury which is
remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk.
A risk which is not far-fetched or fanciful is real and therefore foreseeable.”

Nagle v Rottnest Island Authority (1993) 177 CLR 423 Nagle was injured when he dived off a partially
submerged rock ledge in the Basin, in Rottnest Island. His injuries were caused when he struck himself
on one of the rocks which were adjacent to the platform, and below the low water mark. Rottnest Island
Authority was was under a statutory duty to manage and control for the benefit of the public the public
reserve on the coast of the Island. That reserve adjoined the Basin. It promoted the Basin as a swimming
venue, and encouraged the public to use it for that and other purposes by installing, maintaining and
servicing various facilities on that part of the reserve which was immediately adjacent to the Basin. The
HC found on appeal that the injury in diving off the rock was a foreseeable risk, and that foolhardiness
was not relevant, and agreed with the trial judge, and found for the plaintiff.

H v Royal Alexandria Hospital (1990) Aust Torts Reports 81-000 The plaintiff was a haemophiliac child
who was given blood transfusions in March 1982 and September 1983. He contracted HIV as a result of
one of these transfusions, and contracted AIDS. He sued the hospital for negligence. However, it was
initially unknown that AIDS could be contracted through blood transfusions. It was held that the D was
not negligent in respect to the transfusion in 1982, as the risk could not bee foreseen in March 1982.
Calculus of Negligence

Likelihood

Bolton v Stone [1951] 1 All ER 1078 the plaintiff was hit by a cricket ball from the cricket ground across
the road from her house. It was 90 metres from the batsman to her house. The P’s neighbour testified
that balls had entered her backyard five to six times in over thirty years. Balls were rarely hit out of the
ground. Lord Reid held that “the test to be applied here, is whether the risk of damage to a person…was
so small that a reasonable man…from the point of view of safety would have thought it right to refrain
from taking steps to prevent the damage. It was found that the likelihood in this case was negligible, and
the appeal failed.

Wagon Mound No 2 [1966] 2 All ER 709 The owners of two ships sued a charterer alleging that the loss
of their ships to fire was caused by the Defendant’s negligence in discharging large quantitities of
furnace oil into the harbour. The Privy council found that it was reasonably foreseeable that the oil spilt
on the water may catch fire. It was argued that the officers of the Wagon Mound would regard furnace
oil as being very difficult to ignite on water, and that they would have regarded it as a “possibility but
one which would become an actuality only in very exceptional circumstances“. The Privy Council held
that Bolton v Stone did not preclude negligence for all small risks. Lord Reid held that:

“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 to eliminate the risk. He would weigh the risk against the difficulty
of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity there
can be little doubt but that Bolton v Stone would have been decided differently. In their lordships’
judgment Bolton v Stone did not alter the general principle that a person must be regarded as negligent
if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a
mere possibility which would never influence the mind of a reasonable man. What that decision did was
to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real
risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his
neighbour, would think it right to neglect it.”

Seriousness

Paris v Stepney Borough Council [1951] AC 367 The plaintiff lost his second eye as a piece of metal
entered his eye due to the defendant (his employer’s) negligence in failing to provide safety goggles. It
was held that “in considering…the precautions which an employer ought to take for the protection of his
workmen, it must…be right to take into account…the likelihood of an accident happening, and the
gravity of the consequences.” It was further held that there it is a duty of employers to take additional
precautions where they know of the gravity of the consequences to specific employees; where they
have knowledge of special circumstances which affect the gravity. It was held that by Lord McDermott
that “what may happen to the person is as important as the actions.” Thus, the risk and degree of injury
are relevant factors in determining whether a breach has occurred.
Utility of Conduct

Watt v Hertfordshire County Council [1954] 1 WLR 835 The Defendant was the employer of a fireman
who received an emergency call about a woman trapped under a heavy vehicle very close to the fire
station. As the special vehicle used to carry a heavy jack used for such purposes was out, the fireman
loaded it onto a normal fire truck. He had to in the course of getting to the scene, apply his brakes
suddenly. The jack hit the plaintiff, and the plaintiff sued the employer for negligence. The employer was
found to be negligent at first instance. The Court of Appeal found that they were not negligent and it
was held that the utility of the conduct must be considered, and balanced against the risk taken. It was
held that “in measuring due care, you must balance such a risk against the measures necessary to
eliminate the risk…you must balance the risk against the end to be achieved…the waving of life or limb
justifies taking a considerable risk.”

Daborn v Bath Tramways [1946] 2 All ER 333 The defendant was driving a left-hand drive ambulance,
and had a sign which stated that it was a left-hand drive ambulance. It collided with a bus when turning
right. It was held that the utility of using the vehicle outweighed the risk.

Practical Alternatives

In looking at whether an alternative is practical, factors such as expense, convenience etc. of

implementation needs to be taken into account.

Caledonia Colliers v Speirs (1957) 97 CLR 202 The plaintiff’s husband was killed at a level crossing when
hit by a train carrying trucks which lost control and ran down a steep embankment. No measures such as
points on the line, which would stop derailed trains were taken. The escape of the trucks was reasonably
likely to occur and it was reasonably foreseeable that the P would be injured. It was held that a finding
of negligence was open to the jury. The D argued that installing the points in the line was not a practical
alternative as there would be inconvenience in slowing trains down, and a risk of derailment. The HC
held that the danger was such that it required drastic measures, and further that the D’s argument gave
undue weight to derailment.

Vozza v Tooth (1964) 112 CLR 316 The plaintiff an employee of the defendant was injured when a bottle
burst when it was removed from the pasteuriser. He was provided with leather gloves to safeguard from
injury. However, these were too thin to prevent injury. The jury found that the employer had been
negligent. The HC reversed this decision on appeal as it was held that the P had not adduced sufficient
evidence that it would have been reasonable to install machine handling or practical to provide thicker
gloves. In fact, it was found that thicker gloves would have meant that the P could not handle the
bottles. It is up to P to show that alternatives are practical.
Nelson v John Lysaght (1975) 50 ALJR 104 The P slipped and injured themselves whilst carrying a heavy
coil of wire. It was held that the provision of non-slip shoes were insufficient safety measures. Measures
put in place to improve safety after the accident were accepted as evidence of reasonably practical
measures that could have been put in place to avert the accident.

Mercer v Comm for Road Transport (1936) 56 CLR 580 the P was injured when the D’s tram crashed, as
the driver had collapsed. The conductors had made every effort to stop the tram. The P argued that an
automatic stopping system was a reasonably practical alternative which could have been implemented.
These had been installed in all electric trains in Sydney, but not the trams. However, the defendant
argued that such a system was not in place in any other tramway. However, the HC held that a finding of
negligence was open to the jury, as general trade practice may fall short of the required standard of
care.

Time to Assess Risk

Roe v Minister for Health [1954] 2 QB 66 Two plaintiffs who went to hospital for a minor operation
were given a spinal anaesthetic which had been stored in a container of phenoyl. They were paralysed
waist down due tot eh presence of phenoyl in the anaesthetic which had seeped through invisible cracks
in the glass container in which the anaesthetic was stored. It was held that the D hadn’t been negligent
by the standard of medical knowledge in 1940. The Court noted that the plaintiff’s situation was terrible,
it wasn’t possible to compensate under tort, and to do so would go against community standards.

Who is the Reasonable Person

Glasgow v Muir [1943] AC 448 Lord MacMillan held that legal liability is limited to actions which a
reasonable person of ordinary intelligence would contemplate. In dealing with the reasonable person,
the idiosyncracies of the defendant are excluded, and the reasonable person is free from over-
apprehension and over-confidence

Paptonakis v Aust Telecommunications Commission (1985) 156 CLR 7 Described the reasonable person
as the “hypothetical reasonable person on a hypothetical Bondi tram.” (Deane J)

Age

McHale v Watson (1966) 115 CLR 199 It was held in this case that a child is judged upon the standards
of a reasonable person of the same age and experience as the plaintiff

Physical and Intellectual Disability

McHale v Watson (1966) 115 CLR 199 The Defendant was a boy of 12 who threw a metal spike towards
a wooden post, which hit a girl of 9. The plaintiff argued that the test should be one which determined
the standard of care in relation to the reasonable man. However, the HC found that childhood is not
idiosyncratic, and found that the trial judge had not misdirected the jury by saying that the liability of a
twelve year old is different to that of an adult. It was held that whilst abnormal/idiosyncratic
characteristics can’t be taken into account, that does not preclude a lack of foresight or capacity not
special to himself, but relevant to all in his station in life. It was held that youth is judged by the capacity
or prudence of a person of that age.

Adamson v Motor Vehicle Insurance Trust (1956) 58 WALR 56 The plaintiff was run over by a Mr B, who
was suffering from delusions, and believed that his workmates were trying to kill him, and that he had to
escape. He stole a vehicle and drove recklessly along the road. The Court found that on the facts, he was
not insane at the time of driving as he knew what he was doing, and knew it was wrong. Further, as a
matter of law, it was found that insanity is not a defence to tortious liability.

Plaintiff’s Knowledge of Defendant’s Competence, Skill or Disability

Cook v Cook (1986) 68 ALR 353 The plaintiff was an experienced driver, who invited the defendant, a
learner driver to drive with him. In the course of their driving, the defendant accelerated instead of
decelerating in trying to avoid a parked car. The HC held that whilst the D’s conduct should be judged
against the same objective test as other drivers in relation to users of the highway who were unaware of
the defendant’s inexperience, the standard of care owed to the plaintiff was one which is determined by
judging their conduct against that of a reasonable learner driver, as the P knew of the D’s inexperience.
However, it was found that the defendant’s negligence was so gross, that the plaintiff was successful.

Special Skills - Professional and Specialist Standards

Sidaway v Bethlehem Hospital [1984] 1 All ER 1018 The Bolam principle was used to determine the
standard of care required. This stated that a doctor is not negligent if he/she acts in accordance with
practice accepted by a responsible body of doctors. However, it was held that this test only applied to
actual procedures, and not advice given.

Rogers v Whittaker (1992) 175 CLR 479 The P was almost blind in one eye from age 9, and sought advice
from an ophthalmic surgeon with regards to it. The surgeon stated that appearance and sight would
improve if they had a particular operation. The operation was undertaken with due care and skill.
However, the P sued the surgeon for failure to disclose risks, as she developed sympathetic opthalmia,
and lost sight in her good eye. The P was successful at first instance. On appeal to the HC, it was held
that a medical practicioner that a medical practitioner has a duty to exercise due skill and care in all
aspects of treatment and advice. The standard of skill and care is that of an ordinary person who
professes to have that skill. In order to determine the standard, the evidence of peers will be taken into
account, but is not conclusive. The Court will decide the matter by giving paramount consideration to
the fact that a person has the right to make their own decisions about their lives. The factors used to
determine the adequacy of the standard of care are:
(i) nature of treatment

(ii) patient’s desire for the information

(iii) the temperament and health of the patient

(iv) the general surrounding circumstances.

A medical practitioner has to warn the patient of a material risk about the procedure if it is one which a
reasonable patient in the P’s position is likely to give significance to, or if the practitioner is aware of the
particularities of the patient, and knows that the particular patient would attach significance to it, they
have to disclose it.

Proof of Negligence

Generally, the onus is on the plaintiff to prove on the balance of probabilities (BoP) that the D was in
breach of a duty of care.

In some circumstances , there is direct evidence of this, and in others, inferences need to be drawn. In
order to succeed, the P must prove that the inference is more probable than not. These inferences must
be drawn from proven facts.

Holloway v McFeeters (1956) 96 CLR 99 The Plaintiff’s husband was struck and killed y an unidentified
motor vehicle. There were no eye-witnesses. However, evidence from the anterior movements of the
deceased, and tyre marks on the roadway suggested that the deceased was struck whilst crossing the
road, along the centre of the road. It was held that inferences drawn from actual proven facts are just as
much evidence as the facts themselves. Further, it was held that sufficient evidence existed that
inferences could be drawn that it was more probable than not that the car was driven in a negligent
manner and that this caused the accident.

TNT v Brooks (1979) 23 ALR 945 The P’s husband was killed in a road accident. He was driving a loaded
semi trailer in a northerly direction when there was a collision between his truck, and another, travelling
in the opposite direction. Both drivers were killed, and there were no witnesses. Three possible
scenarios were possible on the facts:

(a) the P’s H was driving on the wrong side of the road

(b) the other truck was driving on the wrong side of the road

(c) both were driving down the middle of the road.

The HC found that an inference could be drawn that it was more probable than not that the other
vehicle was on the wrong side of the road.

Res Ipsa Loquitor

The event or matter speaks for itself.

Mummery v Irvings P/L (1956) 96 CLR 99 The P entered the D’s shed to buy timber, and saw the D’s
foreman working on a circular saw, and moved towards him, when he was hit by a flying piece of wood.
The trial judge had not left the question of negligence to the jury. It was held that this could be open to
the jury dependant upon whether the jury could draw inferences towards negligence as a result of res
ipsa loquitor. It was held that res ipsa loquitor is not a legal principle, but a “general index to those cases
in which mere proof of an occurrence…constitutes prima facie evidence of negligence.” Evidence was
adduced to partially explain the cause of the wood hitting the plaintiff as the evidence tended to
establish that the wood was thrown by the circular saw. The question wasn’t how the wood flew across
the area, but how it flew from the circular saw. However, the Court couldn’t find for the P as there was
no evidence of the circular saw etc, and further the P couldn’t rely on res ipsa loquitor, as some
evidence was adduced.

Scott v London & St Katherine Docks Co [1865] All ER 158-9 It was held that “where the thing…is under
the management of D…and the accident is such that in the ordinary course of things does not happen if
those who have the management use proper care, it affords evidence, in the absence of explanation by
the D, that the accident arose from a want of care.” In this case, a bag of sugar fell on the P’s head, and
injured him. The D called no evidence and the Court found that if P could illustrate that the
circumstances were under D’s control, and that the accident would not have accrued except for the D’s
negligence, then the Court is able to find negligence. However, they don’t have to. This doctrine does
not shift the onus of proof from the P to the D. It remains with P. However, the D bears the evidentiary
onus to adduce evidence if no other explanation of the injury or accident is produced. Where there is no
explanation, the jury may make a finding for the P.

The Effect of the Doctrine

The effect of the doctrine, as held in Mummery v Irvings is that a finding of negligence MAY result. This
isn’t a legal principle that is to be strictly adhered to.

Causation

Causation in fact requires that once the plaintiff has demonstrated that the defendant was negligent,
they must further demonstrate that the negligence caused the P’s injury. Causation in law looks at the
remoteness of damage.

The ‘But For’ Test

This involves determining whether the injuries would have been suffered but for the defendant’s
negligence.
Barnett v Chelsea & Kensington Hospital Management Committee (1969) 1 QB 428 The P’s husband
fell ill after drinking some tea, and went to casualty to find that there was only a nurse, as the doctor
had gone home. The nurse called the doctor, who told him to go home & see his doctor. The husband
died five hours later from arsenic poisoning as there had been arsenic in the tea. The P sued the hospital
and the doctor, claiming that their negligence caused her husband’s death. The Court held that the
doctor was negligent in not coming into the hospital, but, the doctor’s negligene hadn’t caused the P’s
husband’s death, and thus, he was not liable. Evidence was adduced that even if he had attended, he
would only have been able to give an intravenous drip four hours later. Expert evidence suggested that
his chances weren’t good. The Plaintiff had failed to establish that her husband’s death resulted from
D’s negligence, on the BofP. If the P would have been injured even if the D hadn’t been negligent, then
D’s negligent did not cause the death in legal terms.

March v Stramare (1991) 171 CLR 448 The defendant had parked his truck in the middle of the road,
with his hazard and rear lights on. The plaintiff, as he was drunk, drove into the back of the truck. He
sued for negligence. It was found that the defendant was not liable on appeal to the Full Court. On
appeal to the HC, the trial judge’s decision was restored. The HC commented on the limitations of the
‘but for’ test where there are multiple causes. They held that:

(i) the ‘but for’ test has limited used

(ii) it cannot be an exclusive criterion for causation.

(iii) It must be tempered by value judgements and policy considerations.

(iv) Common sense must be looked at too.

SRA of NSW v Wiegold (1991) 25 NSWLR 500 The plaintiff was employed by the D and was injured when
he fell down a railway embankment at night. He was no longer able to work after the accident, and was
provided with worker’s comp. He grew Indian hemp to provide sufficient money by selling marijuana. He
was arrested, convicted and imprisoned. He sued the defendant. The question was whether he would
have been imprisoned but for the D’s negligent. The trial judge held that the defendant was negligent.
They held that the ‘but for’ test was singularly inappropriate.

Chappel v Hart (1998) 156 ALR 517 The plaintiff’s oesophagus was injured during surgery without
negligence. This damaged her vocal cords and she partially lost her voice. She sued the doctor for
negligence in not letting her know of the risk. She argued that had she known, she would have put off
the surgery, and hired the best surgeon possible. The Court discussed the ‘but for’ test with regard to
determining whether the plaintiff would have not had the surgery. In some circumstances the ‘but for’
test doesn’t work. For example, if it had been that the anaesthetic had gone wrong, where even if she
knew of the risks of the perforation, and had put the operation back, she would still be injured.
However, as the damage was due to the perforation, she was successful.
Increased Risk

M’Ghee v National Coal Board (1972) 3 All ER 1008 The plaintiff was employed to clean up brick film.
He sued the National Coal Board for their negligence in failing to provide showers to wash the dust off,
which caused severe dermatitis. The evidence could not demonstrate that it was more probable than
not that the failure to provide showers caused the dermatitis. However, it showed an increased risk. The
HofL found the employers liable. Wilberforce LJ held that whilst logically if there was only an increased
risk, then this is not the cause of the injury. However, it was held that on policy grounds, that an
increased risk satisfies the requirement of causation. It was held that where a breach of a duty creates a
risk, and there is a disease, then the party creating the risk should be held liable.

Wilsher v Essex Area Health Authority (1988) AG 1974 M’Ghee was severely criticised in Wilsher v
Essex as the law requires proof of fault. Demonstrating an increased risk doesn’t satisfy the evidentiary
burden to show that the D’s actions cause the P’s injury. They suggested in M’Ghee had succeeded as
both risk factors were provided by the D. In the current fact situation, there was an innocent
contributing factor, and the defendant’s contributing factor, and the P failed, as they could only
demonstrate increased risk, not that the D had caused the injury.

M’Ghee discussed a “material increase of risk.” This was criticised in Wilsher v Essex as “the law requires
proof of fault causing damage.”

Bennett v Minister for Community Welfare (1992) 176 CLR 408 The plaintiff was a ward of the state
who was injured when trained in a detention center run by the D. The D acknowledged that P, as a ward
of the state was entitled to independent legal rights and advice. They had been negligent in providing
this to him. In 1976, when he was no longer a ward of the state, the P got his own independent advice,
and was advised that he could not recover for his injury (negligently). 1979, after getting further advice,
he sued the defendant for the loss of a right to sue, as his original action had become statute barred.
The Minister admitted the negligence, but argued that the negligence was a novus actus interveniens,
and so, there was no causal connection between the negligence and the damage. However, the HC
rejected this argument, holding that had the D fulfilled their duty, the P wouldn’t have had to obtain
advice at a later date, and thus, the negligence of the advice at the later date had no effect. Gaudron, on
her own found for the P on the basis of a M’Ghee style reasoning. She suggested that in the absence of
evidence that the D’s breach had no effect, the breach had no effect, the breach would be taken to have
caused or materially contributed to the injury or damage.

Multiple Sufficient Causes

Alternative Causes
What is the situation where the P’s injury would probably have occurred anyway? E.g. where the P has a
pre-existing condition, and the negligence accelerates it.

Holton v Berkshire Area Health A thirteen year old boy fell out of a tree, and injured his leg. The hospital
failed to treat it properly for five days. He would develop osteo-arthritis. The HofL held that where on
the BoP, the plaintiff would have developed the condition regardless of the D’s negligence, the D is not
liable.

Von Hartman v Kirk Where the D accelerates death, the D is liable, but only pays damages for the period
of acceleration.

Additional Causes

Where two separate individual causes combine to cause a loss, both the Ds are liable as concurrent tort
feasors, and both will contribute to the P’s loss.

Performance Cars Ltd v Abraham (1962) 1 QB 33 The D drove into the P’s Rolls Royce. A fortnight ago,
another car had hit the P’s car. There was some overlap in repairs, and it already needed respraying due
to the first accident. The Court held that the second D did not have it flowing to them that they had to
pay for the damage caused by the first accident. The fact that the first tortfeasor didn’t want to take on
his share of the costs shouldn’t affect the second tortfeasor.

Baker v Willoughby [1970] AC 476 The P suffered serious injury to his ankle. He suffered pain, loss of
amenity etc. In a hold up three years later, in a hold up, he was shot in the ankle, and it was so serious
that a his leg had to be amputated. The respondent (the first tortfeasor) argued that he shouldn’t be
liable for any loss, as there was no longer a leg. The appellant argued that the injury hadn’t shortened
his life, and so there was still damage. The Court held that whilst the Court normally takes into account
the vicissitudes of life in calculating damages, this is not applicable in the current situation to suggest
that there is no loss. The Court held that at best, damages could be reduced for pain and suffering, as
there is no longer a leg, and so, the P can’t argue pain and suffering on the basis of the leg. The Court
held that the D was liable for all loss caused by him except the additional loss caused by the thief. That
is, the D couldn’t rely on the second accident to reduce liability for the loss ‘swallowed up’ in the second
accident. It was held that damages don’t compensate for the injury itself, but for the loss suffered as a
result. The second tortfeasor is only liable for the additional loss only, as you must take the victim as you
find them.

Faulkner v Keffalinos (1970) 45 ALJR 80 The D injured his leg in as a result of the original tortfeasor’s
negligence. He was further injured in a second accident, causing him to lose all earning capacity. It was
unsure who the second tortfeasor was. The Court held that where the second incident is a non-tortious
act, the Court will take it into account as one of the “vicissitudes of life.” It was held that the D could rely
on the second accident toreduce damages on the “vicissitudes of life” principle. Thus, the first tortfeasor
was only liable for the loss of earning capacity up until the second accident.

Intervening Causation

Chapman v Hearse (1961) 106 CLR 112 The question was whether Hearse’s act in running over Dr
Cherry was a novus actus which broke the chain of causation between Chapman’s actions and Dr
Cherry’s death. It was held that as Chapman’s negligence had contributed to the death, and this was the
sort of situation which was foreseeable, Hearse’s actions weren’t a novus actus and that both were
partly liable.

Mahoney v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 An employee was injured at work, and
he sued the employer. The employer argued that Dr Mahoney’s negligent treatment had caused, or
contributed to the employee’s injuries. The Court held that exacerbation of injury by medical treatment
is a reasonably foreseeable where an injury is negligently caused. IT was held that negligent treatment
doesn’t necessarily break the causal connection. However, where professional and reliable treatment is
ordinarily available, and the P’s injury is exacerbated, then, the doctor providing the medical services is
liable for the degree of exacerbation.

March v Stramare (1991) 171 CLR 506 The defendant had parked his car in the middle of the roak, and
the P, a drunk driver, drove into his tail. The question was whether the drunk driver’s dribing the car into
the back of the truck break the causal chai? The Courts held that the P’s negligence didn’t break the
causal connection, as where the D’s wrongful conduct is the very reason for the P’s or the third party’s
negligent action, then the causal connection is not broken.

Remoteness of Damage

Re Polemis & Furness Withy & Co Ltd (1921) 3 KB 560 It was held that if the damage is too remote, the
D is not liable. It is known as the “Direct Consequences Test.”

Universe Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC
388 Prior to the Wagon Mound looked at whether the injury or damage were a direct consequence of
the D’s act. It was criticised due to the burden placed on the D. The employees of the charterers of the
ship allowed a large quantity of oil to be discharged into Sydney Harbour. It spread across a large part of
the bay and congealed on a wharf and around a ship. The plaintiff’s workmen gave instructions that no
welding work should be carried out. The manager told them to continue. They continued until the wharf
and the ship caught alight. The Privy Council held that Polemis is no longer good law, and that liability is
imposed where the consequences are reasonably foreseeable. It was held that the d was not liable, as
on the evidence, the damage was not reasonably foreseeable.
Universe Tankship (UK) v Miller Steamship Co Pty Ltd (The Wagonmound (No 2)) [1967] 1 AC 617 per
Lord Reid “reasonably foreseeable” means “A real risk…would occur to the mind of the reasonable
man…which he would not brush aside as far-fetched or fanciful.” The actions were brought by the
owners of two ships sued a charterer alleging that the loss of their ships to fire was caused by the
Defendant’s negligence in discharging large quantitities of furnace oil into the harbour. The Privy council
found that it was reasonably foreseeable that the oil spilt on the water may catch fire. It was argued that
the officers of the Wagon Mound would regard furnace oil as being very difficult to ignite on water, and
that they would have regarded it as a “possibility but one which would become an actuality only in very
exceptional circumstances“. It was held that the D is liable for damage caused not only by the D, but that
which fell within by the class or category of damage which is reasonably foreseeable. If the officers had
seen the damage as a possibility, which could only become an actuality in exceptional circumstances.
The defendant’s in Wagon Mound 2 were held liable.

Hughes v Lord Advocate (1963) AC 837 It was held that it does not matter if the exact circumstances are
not foreseen, as long as harm of the kind could be foreseen. That is, it is not required that the exact
manner be foreseen, as long as the harm could be foreseen. Workers working on a dark street went on a
break, leaving an open manhole. They had surrounded it by a canvas tent, and a ladder to get in. There
were red paraffin lamps around it. Two young boys went in, and one of the lamps were knocked over,
and there was an explosion. The younger boy fell into the manhole as a result, and suffered severe
burns. The HofL held that the D owed a duty and breached it, and although the injuries of a different
degree weren’t foreseeable, however, something of the kind was foreseeable. Whilst the manner was
unforeseeable, the harm could have been foreseeable.

Mt Isa Mines v Pusey (1970) 125 CLR 383 The HC held that a mental disorder of some kind was
reasonably foreseeable as a result of their negligence. The degree of that disorder need not be foreseen.
The HC held that what is required is:

- not foresight of the particular course of events

- only some harm of a like kind.

- The “comfortable latitudinarian” doctrine - this is a broad test.

Egg Shell Skull Cases

Enunciates the concept of take the plaintiff as you find them. The extent of harm need not be
foreseeable as long as the KIND of harm is foreseeable.

Dulieu v White (1901) 2 KB 405 The plaintiff may suffer from some pre-existing weakness or the
defendant’s negligent act may cause injury resulting in some susceptibility to further illness or injury
Smith v Leech Brian & Co (1964) 1 QB 518 The plaintiff was a worker and he got burnt and this
enhanced cancer. As it was reasonably foreseeable that there would be a burn, responsibility extends to
the fatal cancer which developed from an unusual pre-malignant condition of the victim.

Robertson v Post Office (1974) 2 All ER 737 The plaintiff suffered brain damage after getting a tenus
shot for graze and it was reasonably foreseeable that the medical treatment would go wrong and
therefore the D is liable for damage.

Defences

The most common defence argued is that the defendant did not breach the duty. Whether the duty has
been breached is decided by a tribunal of fact. Sometimes, it is argued that no duty was owed.

Contributory Negligence

The historical position at common law was that it was a complete defence.

Butterfield v Forrester (1809) 103 ER 926 It was held that if the D could establish that the P was guilty of
a failure to take care of his or her safety, then, the D is not held to be liable.

Davies v Mann 152 ER 588 The situation espoused in Butterfield was modified by the “last opportunity
rule.” This stated that whoever had the last opportunity to avoid the accident would be liable.

This rule was further modified in Alford v Magee (1952) 85 CLR 437 The HC fiddled with the cases and
the applicable cases, and stated that where the D had a real opportunity to avoid the accident, they
should be liable. If the D’s actions were later in time, the D would be liable. Where D had an advantage,
the D is liable.

All these rules looked at laying the blame on either party’s shoulders, there was no notion of
apportionment.

Thus, s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 was enacted, which means that
contributory negligence is no longer strictly a defence, but a plea for the reduction of damages. The act
is a cornucopia of tort reforms in NSW.
s 10 states: “where a person suffers damage…partly of his own fault, and partly the fault of any other
person…a claim…shall not be defeated, but the damages recoverable…shall be reduced to such extent as
the court thinks just & equitable, having regard to the claimants share in the responsibility of damage.

Apportionment of responsibility is a question of fact. “damage” is defined to include any loss of life and
personal injury. “Fault” is defined as “negligence or other act or omission which gives rise to a liability in
tort.”

The apportionment of liability is measured in terms of percentage.

Pennington v Norris (1956) 96 CLR 10 The P was run over by the D on a dark, wet night. He had had a
few drinks too. The Tasmanian Supreme Court held that the P’s damages would be reduced by 50% due
to contributory negligence. On appeal to the HC, it was held that the damages would only be reduced by
20%. The HC held that it must be a “just and equitable” apportionment of responsibility between P&D.

Generally, in NSW, a 30% reduction is large, 25% still quite large, and a 15-20% reduction more likely.

Culpability means the “degree of departure from the standard of care of the reasonable man.” The act
gives wide discretion to the tribunal of fact.

Froom v Butcher (1975) 3 All ER 520 It was held that negligence depends on the breach of a duty of
care, but contributory negligence doesn’t. The P is guilty of contributory negligence if he ought
reasonably have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself.
It was a reduction in damages for the failure of the P to wear a seatbelt.

Lord Denning stated that where the failure to take care for one’s own safety made all the difference, he
would apportion a 25% reduction, where there is a significant contribution, he’d apportion 15%.
(In Froom v Butcher, however, this is in no way binding, just interesting).

Davies v Swan Motor Co (1949) 2 KB 291 For contributory negligence, there is no requirement that P
owe a DoC to anyone, just that they failed to take reasonable care for their own safety.

There is further a question as to whether there is a causal link between the P’s loss and their negligence.
It must be foreseeable.
Jones v Livox Quarries (1952) 2 QB 608 The P was riding a towbar on the back of a truck. Any reasonable
person would think it foreseeable that they would fal off or that another vehicle could run into the back
of their truck. It was held that the P is guilty of contributory negligence, as he should have foreseen that
standing on the back of the truck would lead to injury. He had been injured when someone ran into the
back of the truck.

Gent-Diver v Neville (1953) QSR 1 The P was a pillion passenger on a motorbike. He knew that the front
light was defective. The collision was due to the fact that the driver was driving on the wrong side of the
road. It wasn’t due to the fact that the headlight wasn’t on, and so there was no causal link, and thus, no
reduction. It was held that there was no contributory negligence, because although the P knew the
lights were defective, the accident was not caused by defective lights, but by the D was on the wrong
side of the road.

The standard of care applicable to the P is reasonableness and the calculus of negligence is applicable.

Caterson v Comm for Railway (1973) 128 CLR 99 The P was a man who lived in the country seeing a
friend off at the station. HE carried his baggage onto the train and it moved off. He had left his 14 y.o.
son at the station. The next station was 130 km. The P’s home was 80 ks away. The P jumped off the
moving train, and was injured. He sued the D in negligence for not warning him that the train was
moving off. The question of contributory negligence arose. The Court held that “where the P has been
so placed that they can only escape by taking a risk, the question of reasonableness is weight between
the inconvenience caused, and the risk taken.” It was held that the P was not contributorily negligent.

The risk taken by the P is considered in light of the situation of risk created by the Defendant (McLean v
Tedman (1984) 155 CLR 306) Plaintiffs are judged quite leniently, as the plaintiff’s conduct is judged in
light of the situation created by the Defendant.

McLean v Tedman (1984) 155 CLR 306 The P was a garbo, who was crossing the road when Brambles
(one of the Ds) overtook the garbage truck, and ran over him. The garbo would run back & forth, and
emptying the bins on either side. The plaintiff sues both the driver, and his own employer for
negligence. The employer and the driver argue contributory negligence on the part of the plaintiff. The
employer argues that the P had been instructed not to carry out the work in this way, but to travel up a
street, emptying all bins on one side, then emptying the bins on the other. The D argued that the P was
negligent in not taking a proper lookout for his own safety. However, the HC held that as the employer
knew that all the garbos didn’t adhere to the instructions given, and the employer did nothing about
this, they were negligent in allowing an unsafe system of work, and the driver, by overtaking at an
unsafe speed created the dangerous situation, and thus, the P was not contributorily negligent.
Volenti Non Fit Injuria

Where a plaintiff voluntarily assumes the risk, this is a complete defence to a claim of negligence. Where
a D can show that the P voluntarily assumed the risk, the D cannot be liable. However, the defence
of volenti cannot be pleaded in motor vehicle or work accidents due to s 76 of the Motor Accidents Act
1988 and s 151o of the Workers Compensation Act 1987.

In order to show volenti the D has to prove that:

1 the P knew of the facts constituting danger (knew the risk)

2 fully appreciated the danger inherent in those facts

3 fully accepted the risk of injury.

American Cigarette Co (overseas) Pty Ltd (No 3) (1987) VR 289 The P was a smoker who contracted lung
cancer who sued in negligence for the D’s failure to warn of the risk of contracting lung cancer. The D
brought a defence of volenti, stating that the P knew or ought to have known the risks of smoking. The P
applied to strike out the defence. The Courts held that constructive knowledge was not acceptable to
constitute a defence of volenti. It was held that P’s knowledge must have been express, and that actual,
rather than constructive knowledge was required.

Imperial Chemical Industries v Shatwell [1965] AC 656 The HofL held that the general rule is that
voluntary assumption of risk will NOT defeat a claim of an employee against an employer.

Insurance Commissioner v Joyce (1948) 77 CLR 39 Latham CJ held that where the P is a passenger in a
car of a drunken driver, the P should fail on any one of the following three grounds:

No breach of duty to a willing passenger

P was contributorily negligent in getting into the car.

The P voluntarily assumed the risk.

Roggenkamp v Bennet (1950) 80 CLR 292 The P was FULLY aware of the D’s drunkenness and P
accepted the risk. Whether this is so is a question of fact, and can be inferred from the P’sbehaviour. As
a result of the above, it was held that the D had a defence of volenti and P couldn’t bring an action.

Rootes v Shelton (1967) 116 CLR 383 The P was a very good water skier who was performing a cross-
over with another skier. This was also known as “Russian Roulette.” The P was injured while performing
the cross-over, as the driver of the speed boat was driving too close to another craft, and he collided
with it. The D argued volenti. However, the Court held that the P had assumed the risks involved in the
“Russian Roulette” manoeuvre, but not that of the negligent driving of the speed boat driver. The P’s
action was successful. It was held that the P may accept inherent risks involved with the sport, but not
non-inherent risks, or the risk of negligence outside the sport.

Kent v Scattini (Full Ct of WASC) The P was a sixteen y.o. who was sitting on the steps of the P.O. when
they were sprayed by other kids with water. The P & her friends armed with similar equipment took
after the other car, and were travelling at 80km/hr, when the car failed to take a bend, and the P was
injured. She sued the driver of the car. The D argued volenti. The Court held that she had only assumed
risk in regard to the spraying of water, and not in regard to the D’s negligent driving, and thus, the P was
successful. It was held that P is only barred from recovery for losses which are caused by the result of a
known and accepted risk.

Illegality

This is referred to as a defence, but is usually used to deny that a duty of care existed.

Henwood v Municipal Tramsways Trust (Sth Aust) (1938) 60 CLR 438 The P was the mother of the
deceased who was killed when leaning out the window to vomit. The tram carriages were too wide, and
went very close to the staunchons. The deceased was killed when he hit his head on one, whilst
vomiting. The D was aware of previous serious accidents, and hadn’t warned people, except to put up a
sign to say that leaning out of tram windows is prohibited. The P sued the trust. The trust argued that
the son had committed an illegal act, and thus, they weren’t liable. On appeal to the HC, McTiernan and
Dixon JJ held that one must look at the purpose of the law which the P has contravened. If it is to
disentitlte P, then, the D is absolved of liability. If not, the D is still liable.

Jackson v Harrison Jacobs J held that “a legal duty… presupposes that a tribunal of fact can properly
establish a standard of care…if the courts decline to permit the establishment of an appropriate
standard of care then it cannot be said that there is a duty of care.”

Gala v Preston (1991) 172 CLR 243 Four youths stole a car, and went for a joyride, when they met with
an accident. The P (one of the youths) sued the D (the driver of the car) in negligence. The question was
whether the illegal act deprived him of his ability to sue. Mason CJ, Deane, Gaudron and McHugh JJ held
that whilst illegality doesn’t automatically deprive the P of a right to sue, where they are in a joint illegal
enterprise, it is not feasible to determine the appropriate standard of care, and thus, no duty arises.

Negligence - Particular Duty Areas

Product Liability

Donoghue v Stevenson [1932] AC 262 imposed a duty of care that “a manufacturer of products…owes a
duty to the consumer to take reasonable care.”

Junior Books v Veitchi held that “manufacturer” is to be broadly understood. Haseldine v Daw holds
repairers liable.

O’Dwyer v Leo Buring [1966] WAR 67 imposes liability for the negligent design of a product. Adelaide
Chemical & Fertiliser Co v Carlyle (1940) 64 CLR 514 imposes liability for the negligent marketing of a
product. Norton Aust Pty Ltd v Streets Icecream Pty Ltd (1969) 120 CLR 635 imposed liability for the
failure to warn of dangers of proper use.

Grant v Australian Knitting Mills [1936] AC 85 The defendants tried to distinguish this case from D v S as
the underwear was easy to inspect. However, as the excess of sulphates in the underwear was latent, no
reasonable inspection would have made it discoverable.

Running alongside common law liability are statutory provisions which impose liability.

SOGA 1923 whilst it only applies to contracts for the sale of goods implies warranties into contracts that
the goods must:

Have fitness of purpose, Be of merchantable quality and Cannot be excluded.

However, it is of limited use as the doctrine of privity of contract means that the ability to bring an
action is restricted.

Part V Div 2A of the TPA and more accurately, s 74B of the TPA gives consumers or persons acquiring
title through or under a consumer can bring an action against a manufacturer in respect of goods
unsuitable for the purpose. s 74C allows for an action in respect of false description of goods, s 74D for
goods of unmerchantable quality, s74E for goods not corresponding with a sample, and s 74K prohibits
the exclusion or modification of this division.

Under s 74 A (3) and (4) manufacturer is defined broadly, and includes a corporation which: allows its
name or brand on goods, holds itself out as a manufacturer and is an importer, and the manufacturer
has no Australian place of business.
A consumer is defined as a person acquires goods where: the price does not exceed the prescribed
amount. (was $40 000) or, where the price was greater, but the goods were of a kind ordinarily acquired
for personal, domestic or household use.

Due to constitutional limitations, the TPA only applies to corporations. However, the FTA applies where
the manufacturer isn’t a corporation

Part VA of the TPA, enacted in 1992 imposes liability upon manufacturers and importers of defective
goods and applies to goods :if their safety is not such as persons generally are entitled to expect.” (s
75A)

A corporation supplying such goods is liable for damages to a person, where the person is injured or
killed. (s 75AD). The remedy for other persons who suffer consequential losses is found under s 75 AE.
The remedy for damage to personal, domestic or household goods is found under s 75 AF. Remedy
where land or buildings are damaged is found under s 75 AG. s75AK provides the defences, s 75 AN
deals with contributory negligence, and s 75AQ stipulates a three year time limit.

Under the TPA, a P doesn’t have to prove the existence of either a DoC or negligence. So, where
possible, a P would be best advised to plead two causes of action, one in tort, and one under the TPA.

However, it is important to keep in mind the effect of Wakim on cross-vesting legislation.

Phillip Morris Inc v Adam Brown Male Fashion Pty Ltd (1981) 148 CLR 457 accrued jurisdiction means
that a court, any court, apart from those which have their jurisdiction specifically specified is allowed to
hear and determine other matters to properly hear the matter before them.

Abnormal Plaintiffs

Levi v Colgate-Palmolive (1941) 41 SR (NSW) 48 Mrs Levi sued Colgate as she contracted a very severe
dermatological condition due to using free samples provided by the defendant. The HC held that as her
reaction was very, very rare, she was so unusual that she was an unforeseeable plaintiff. As the bath
salts were harmless to everyone else, she was unforeseeable, and owed no duty of care. She didn’t
succeed on the basis of the egg-shell skull cases, as there the Ps were injured just like everybody else,
just to a much greater degree. It was held that “the bath salts supplied to P were innocuous to normal
persons…the skin irritation which she suffered…was attributable exclusively to hypersensitiveness.”
Haley v London Electricity Board [1965] AC 778 The P, a blind man, was injured, when he fell into a
ditch dug by the LEB, as they had not provided a barrier which was sufficiently high for him to detect it
with his cane. It was held that the P was not unforeseeable, as it was foreseeable that a blind person
would walk along the pavement, and could be injured if proper safety measures were not undertaken.
Here it was held that D “ought to anticipate the presence of such persons within the scope and hazard
of their operations.”

The Unborn Child

Watt v Rama [1972] VR 353 The P was a woman who suffered severe brain damage due to an accident
which her mother was involved in due to the D’s negligence. The D argued that the P couldn’t recover,
as an unborn child has no legal rights. However, the Court held that the rights of the unborn child are
potential rights, which crystallize when it is born.

Lynch v Lynch (1991) 25 NSWLR 491 A child sued a mother for negligence in causing injuries when she
was in her womb due to a motor vehicle accident. The child was successful, as it was found that it was
owed a duty of care. However, the Court restricted the application of such a duty strictly to the
circumstances of the case, as there is a very low threshold which needs to be crossed to establish a duty
of care in motor vehicle accidents.

Mackay v Essex Health Authority [1982] QB 1166 The Ps sued a doctor and a pathological lab on the
basis that they were negligent in failing to properly conduct tests to determine whether the mother had
rubella. The mother wasn’t treated, or warned of the dangers of continuing with the pregnancy. The
child was born with severe disabilities. The Ps were mother & child. The mother argued that she couldn’t
terminate the pregnancy as she didn’t know, caused by the Ds’ negligence. The child’s claim was that
their negligence caused her to be born. An interlocutory application by the Ds was to strike out both
claims. However, it was held that the mother’s claim would be allowed, but the child’s claim would be
struck out. The Court of Appeal agreed, holding that the child did not have a cause of action.

The child’s claim was one of wrongful life, and the mother’s one of wrongful birth. It has been held that
whilst a cause of action exists for wrongful birth, no such action exists for wrongful life.

Dangerous Premises & Occupier’s Liability

Introduction
The foundation of liability for this is occupational control. It is control associated with and arising from
the presence in and use of or activity in the premises. Thus, a P would look to the tenant, and not the
landlord for relief if injured on leased premises. Whilst possession is a good test for control, it doesn’t
have to be exclusive to make the D liable. Thus, a licensee or indeed, anyone with a right to invite
people over someone else’s land could be an appropriate D in a suit. (Wheat v Lacon [1966] AC
552, Kevan v Commissioner for Railways [1972] 2 NSWLR 710)

Premises include land and fixtures, however, this has been widely read. London Graving Dock v
Horton [1951] AC 737 Held that this includes moveable structures, e.g. scaffolding.

Swinton v China Mutual Steam Navigation Co Ltd (1951) 83 CLR 553 is an example where ships and
gangways were held to be premises.

The Old Common Law Approach

The pre-Zaluzna position involved a special duty of care dependant upon the class of visitor to the
premises. The classes were:

Invitees

Licensees

Persons entering under contract (invitee)

Persons entering in exercise of legal power (invitee)

Persons entering as of public right (licensee)

Trespassers

As the Courts were dissatisfied with this approach, as it became increasingly complex and formalistic.
Thus, the Courts encouraged circumvention of the differing duties by allowing “concurrent resort to
Atkinian duty of care” where there was any deviation from “mere occupancy.”

The Concurrent duties approach held that an ordinary DoC overrides a “special duty.” (Hackshaw v
Shaw (1984) 155 CLR 614, Papatonakis v Australian Telecommunications Commission (1985) 156 CLR
7)

Voli v Inglewood Shire Council (1963) 110 CLR 74 A special duty has to be proven where the breach
comprised something in the “static” condition of the premises.
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 held that a general duty of
care needs to be established if the breach arose out of the activities, or positive actions of the occupier.

The law allowed for recovery in different circumstances depending upon the class of the P. These were:
where there were dangers which the D knew or should have known of in relation to invitees.; Where the
D knew of dangers to licensees.; Where acts were done deliberately to cause harm to trespassers.

The Current Position in Australia

The classical formulation has now been virtually rejected. The modern formulation is that a general duty
of care is owed to a person entering land, regardless of the distinction between invitee, licensee and
trespasser where there are circumstances where a general duty will lie.

Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 The P went shopping at a Safeway store in an
affluent Melbourne suburb on a wet Saturday morning. She slipped and was injured in the foyer, and
sued in negligence. It was held by Mason, Wilson, Deane and Dawson JJ that “all that is necessary is to
determine whether in all the circumstances, including the fact of the D’s occupation of premises, and
the manner of the P’s entry upon them, the D owed a duty of care under the ordinary principles of
negligence.” Thus, they spelt an end to the “so-called special duties resting on an occupier of land with
respect to persons entering as [invitees], licensees or trespassers.” It was held that the manner of entry
is not a decisive factor, and that there are no hard & fast rules regarding it. The question of the manner
of entry is more applicable in the question of the standard of care.

Papatonakis v Australian Telecommunications Commission (1985) 57 ALR 1 The question of whether an

occupier’s duty extends to include a duty in relation to independent contractors was left open. That is,
there a duty to “see that reasonable care is taken.”

Modbury Triangle Shopping Centre Pty Ltd v Anzil (23.9.2000) HCA This was a question which turned
upon breach. The P worked in a video shop in the shopping center. There was a large car park in front of
the Shopping Centre, which had previously been lit up until late at night. However, Modbury took the
view of turning off the carpark lights when most of the shops closed. So, the carpark was dark when the
video shop closed. The P was mugged in the car park as a result. The Court held that the D hadn’t been
negligent, as the calculus of negligence had fallen their way.

Liability of Statutory Authorities

Local councils are statutory authorities. Under their enabling acts, they have the power, and not a duty
to act. Thus, the Courts heave held that where a statute has given them a POWER to act, why should the
common law impose a duty to act?
Questions arise as to the distinction between misfeasance and non-feasance. Will a statutory authority
be held liable for misfeasance? Further, what if the actions are ultra vires?

Anns v Merton London Borough Council (1978) AC 728 This case was not followed in either the HofL or
in Australian courts, but, it is important, due to the concepts it enunciated. The P bought a house within
the D’s council area. It had been built without their knowledge on faulty foundations. The P sued the
council as it has the power to approve building plans and the power to inspect the construction. The
Court held that the council was liable as it was reasonably foreseeable that if the council hadn’t
inspected the construction, someone would suffer. The Court held the following in relation to the
liability of statutory authorities:

Intra vires & a policy decision - the courts will not interfere.

Ultra vires & a policy decision - the courts will assess whether (in)action was negligent

Not a policy decision, but an operational one - the courts will assess whether (in)action was negligent.

Sutherland Shire Council v Heyman (1985) 157 CLR 424 The fact situation was almost identical to those
in Anns. The HC in this case declined to follow Anns on the question of where a DoC arises - that is they
declined to use the distinction between policy and operational decisions - and instead used reliance as
the test. The majority Mason CJ, Brennan and Deane (in separate judgements) held that:

In general, there is no duty to exercise statutory powers.

The duty arises where the authority, by its conduct places itself in a position where other people rely on
it to take care for their safety.

The Duty arises where the D ought to foresee that:

(i) the P reasonably relies on the D to perform the function

(ii) The P will suffer damage if the D fails.

The Court held that the D was not liable, as the P hadn’t relied on the Council’s inspections. They could
have, but they didn’t. Further, the Council did nothing to induce the P to rely on it. The HC found
unanimously for the D. Two minority judges found that there was a duty, but no breach. Mason CJ held
that policy or operational distinctions are not relevant in determining whether a duty exists. It is
relevant on the question of breach. He further introduced the concept of general reliance.

Parramatta City Council v Lutz (1988) 12 NSWLR 293 Lutz was the owner of a property next to a derelict
house. The Council had the power to demolish any derelict buildings, even where the owner doesn’t.
Lutz had repeatedly asked for the building demolished. The Council had failed to do so, and a fire started
in that property, spreading to her property, destroying her house. It was held that as Lutz had
specifically relied on the council to demolish the building, and as the council had induced her to do so,
there was a DoC. Both Kirby P and McHugh JA held that the council was liable to P as the P had
“generally relied” on it to exercise its statutory powers. McHugh JA went on to state that “I think…that
this Court should adopt as a general rule of the common law, the concept of general reliance.”

Pyrenees Shire Council v Day (1998) ALJR 1 There were three Ps - the owner of a fish and chip shop, the
tenant, and the owner of the property next door. The Council inspected a flat behind the shop, and
found the fireplace to be very dangerous. The inspector warned the then tenant not to light a fire. The
inspector issued a notice to the owner regarding fixing the fireplace. The owner sells the flat, and a new
owner, and a new tenant arrives. The tenant lights a fire, and the place burns down. The plaintiff’s sued
the council, as the inspector had come, and knew of the danger, and it didn’t do anything. The HC held
that the owner couldn’t succeed as they hadn’t specifically relied on the council. The tenants and the
adjoining owner were successful, as they had relied on the council. The majority (Brennan CJ, Gummow
and Kriby JJ) :rejected the concept of general reliance (too vague, uncertain, and relies on a “general
expectations of community.”), only McHugh, Toohey JJ approved the concept of general reliance;
Brennan CJ held that there was no specific reliance by the P (owner) here. It was held that a duty arises
where the “autority is empowered to control circumstances give rise to a risk and where a decision not
to exercise power to avoid a risk would be irrational in that it would be against the purpose of the
statute.” Gummow J held that the council had esclusive control and knowledge of this situation, and
should so be reliable.; The control mechanisms are misfeasance/nonfeasance à here the council by its
actions, placed itself in such a position which imported a DoC. The policy/operational distinction is not a
clear cut basis for determining liability, but there will be no liability for the quasi-legislative of statutory
bodies (e.g. zoning prescriptions) or core areas of policy making.; Kirby J held that proximity is not a
universal identifier of a DoC. BUT, more than reasonable foreseeability is required. You look at a
spectrum of proximity factors, which involves determining whether:

- the gravity of the risk is high

- the claimants were not strangers to the Council, but ratepayers.

- The council had statutory power expressly to prevent fires

- The council had exclusive knowledge of dangers

- These are sufficient to impose a DoC. He further held that the following should be taken into
account:

- Policy considerations

- The test in Caparo v Dickman for a DoC.

Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1 Stevedoring is a statutory body.
A waterside worker died as a result of contracting mesothelioma as a result of inhaling asbestos fibres.
The deceased’s wife sued the statutory body for negligence, arguing that the Authority failed to warn of
the dangers of asbestos, failed to instruct as to those dangers, failed to provide respiratory equipment,
failed to encourage employers to introduce safety measures for the handling of asbestos, failed to
ensure that employees were aware of the risks of exposure to asbestos and failed to properly inspect
the conditions under which stevedoring operations were carried out. The Stevedoring Industry Finance
Committee assumed “all the liabilities and obligations of the Authority that existed” as at 26 February
1978. 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.

McHugh J and Gleeson CJ agreeing: analysed the precedents in similar cases to reveal their “bases in
principle and policy.” Held that there may be special factors which negative a duty for a public authority
where a duty would be owed by a private individual. The common law courts should take caution in
imposing affirmative duties of care on statutory authorities. In novel cases, the duty should be
determined by the following questions:

Was it reasonably foreseeable that the D’s act or omission including a failure to exercise of statutory
power would cause injury?

Did the D have the power to protect a specific class including the P (rather than the public at large).

Was the P vulnerable?

Did the D know of the risk to the specific class including the P if D didn’t exercise their power.

Would the duty impose liability for the “core policy making” or “quasi-legislative” functions of the body?

Are there any policy reasons to deny duty (e.g. the DoC is inconsistent with a statutory scheme).

Gaudron J: an obligation imposed on an authority by the Act is consistent with the DoC., The P is
vulnerable; D knew of the asbestos; The authority had power to control or minimize risk.

Gummow J agreeing with Hayne J: inappropriate to ask whether a DoC is inconsistent with a statute.;
The starting point must be the statute.; In the present case, the relevant statute was a complete
statement for the regulation of the subject matter.; The authority lacked any power over safety.

Kirby J: Applied the Caparo “3 stage enquiry” and imposed a DoC.

Hayne J:; The powers of authority were “quasi-legislative.”; The authority was not in control of the
situation.; Thus, there was no DoC.

Callinan J:; Right to exercise control, and actual control as an indicator of a DoC.
Ryan v Great Lakes Council 9 August 2000 Federal Court Australia Lindgren J held on the DoC issue
that:; there were no clear principles laid down by the HC.; This was a novel case as a duty was claimed
towards the “consuming public.” This is generally not an identifiable class, and there isn’t a duty to
exercise powers in one particular place (cf Pyrenees, Lutz), but in respect of many places.; The
predominant methodology in determining whether a DoC exists is one of cautious, incremental
development of principle, based on analogy with previous cases.; One has to examine precedent cases
to reveal their bases in principle and policy.; In a novel case involving a statutory authority, the issue of
DoC should be determined by answering the following:

1. Was it reasonable foreseeable that act or omission would cause injury.

2. Did D have the power to protect a specific class including P (rather than public at large).

3. Was the P vulnerable.

4. Did D know (or ought D have known) of risk?

5. Would duty impose liability for “core policy making” or quasi legislative” functions? If so then NO
duty.

6. Are there policy reasons to deny duty.

Commence with examination of relevant legislation to discern nature of powers and expectations of
parliament.

Referred to NZ, Canadian, and English cases, esp. Stovin v Wise [1996] AC 923 Which held that the
general principle is that there is no liability for a failure to exercise a statutory power. IT made use of the
public law test (like Brennan CJ in Pyrenees). The question is whether it would have been “irrational for
the Council to decide not to exercise its power?”

He held that the current case was similar to Pyrenees, Lutz & Crimmins in the following areas:

- powers have objects which include “public health”

- P was vulnerable.

- Council knew there were problems.

The case is unlike Pyrenees, Lutz & Crimmins because:

- duty is claimed to be towards “consuming public generally” not identified individuals

- The problem was not at a known problem site, but in respect of many unknown sites

- The council was not in a position to prevent contamination, only minimize it.

- The issue of a breach raises complex issues as to priority of allocation of council resources.

- Causation problems…which source of contamination caused the P’s illness?

- Cost of identifying and eliminating all sources of contamination is too onerous.

It was foreseeable that injury would occur if the Council didn’t exercise its powers, but foreseeability
alone is not sufficient for a DoC.

Proximity is not a necessary element of a duty in all cases (Hill v Van Erp) however, it is a useful concept.
In Pyrenees, Lutz and Crimmins the relationship between the P and the public authority was much
closer than in this case.

There are several considerations, on policy grounds which render it unfair, unjust and unreasonable to
impose a duty:

- indeterminate class of Ps

- duty to “minimize” contamination too vague and uncertain a concept.

- Indeterminate nature of the burden on the council because of the non-specificity of the sources of
contamination.

- Question of cost and ordering priorities.

Kiefel J’s reasoning on the issue of a DoC was similar.

Lee J dissenting, would have imposed a duty on the council on the facts.

Highway Authorities

The old rule was that statutory authorities were not liable for non-feasance in their role as highway
authorities. (Gorringe v Transport Commission (1950) 80 CLR 357 and Buckle v Bayswater Road Bd)

Hughes v Hunters Hill Ccl NSW Ct of Appeal held that the Gorringe rule survived the decision
in Sutherland v Heyman

Ghantous v Hawkesbury Shire Council HCA June 2001 The P tripped and fell due to a depression in the
footpath. The question was whether the D owed Mrs Ghantous a DoC.

Brodie Shire Council v Singleton HCA June 2001 The P was driving a truck loaded with concrete across
an old timber bridge, when it collapsed, and the P was injured. He sued the council.

In both the above cases, the HC denied immunity for nonfeasance by highway authorities. The reasoning
for this was delivered in a joint judgment by Gaudron, McHugh and Gummow JJ, with Kirby J agreeing:
In highway cases, the law of negligence has subsumed nuisance

In so far as they exclude the operation of the tort of negligence, Buckle, and Gorringe should no longer
be followed.

The relevant considerations for this are:

1. no such rule in other jurisdictions: Canada, USA, NZ, in UK matter covered by statute so common law
rule no longer applies in country of origin.

2. decisions often turn upon capricious distinctions between misfeasance and nonfeasance, and
between what is the highway, and what is other infrastructure (eg drains, sewers).

3. The misfeasance/nonfeasance distinction is illusory especially on the issue of repair or maintenance

work. That is, an authority can be liable for an attempt to reduce danger, but not if they left it be).

4. Policy questions: the purposes served by the immunity now are not those served in England in Ages
past.

5. The argument that without immunity, authorities will be subject to new indeterminate financial
hazards and scrutiny of financial and budgetary matters is not tenable. They have insurance, and other
corporations are “obliged to order their affairs to meet the rule of law.”

6. The argument that precedent demands the maintenance of immunity is not accepted: “stare
decisis…should not always trump the need for desirable change in the law.” (per McHugh J in Perre v
Apand)

7. Nuisance/negligence

8. the immunity and statute: RTA act refers to “immunities of a council in relation to a public road”
without defining the immunity. This does not have the effect of entrenching the immunity, but rather
attracts that immunity which may exist from time to time.

what will replace the rule in Buckle and Gorringe? The abolition of immunity doesn’t mean strict
liability. The content and breach of the DoC is to be determined according to the ordinary law of
negligence…Wyong v Shirt

Gleeson CJ, Hayne and Callinan JJ dissented.

In Brodie, the appeal was allowed, and the case remitted to the Court of Appeal for decision on the issue
of breach. Ghantous’ appeal was dismissed, as there was no breach of a duty by the council.

Liability for Defective Structures

This is the liability of non-occupiers to visitors or occupiers of negligently constructed buildings. Builders,
developers, engineers, architects and local government all owe a duty of care to injured persons. But,
what of the situation where there is no physical injury, only purely economic loss (that, is the cost of
repair of defective structures).
Economic Loss

Dutton v Bognor Regis UBC [1972] 1 QB 373 It was held that the council owed a DoC to the P, and that it
was liable for a failure to properly inspect faulty foundation. Lord Denning talked of a “material loss” -
the cost of repair to avert threatened injury.

Anns v Merton London Borough Council [1978] AC 728 It was held that the council owed a DoC in
respect of negligently failing to properly inspect foundations. The damage was referred to as “material.”
This case relied upon Dutton. However, since this case, the HofL has declined to follow Anns and
overruled Dutton.

Murphy v Brentwood District Council [1991] AC 398 It was held that the council was not liable in
relation to faulty foundations, as there was no DoC, as the loss was purely economic.

Sutherland Shire Council v Heyman (1985) 157 CLR 424 The HC held that the DoC of a statutority
authority is dependant on the reasonable reliance of the P on D. The P’s loss was economic.

Armidale Shire Council v Finlayson where the P was successful against the council because of reliance,
and notwithstanding the fact that the loss was purely economic.

Builders

Builders are clearly liable where an injury is caused by an undiscovered defect on ordinary negligence
principles. (Murphy v Brentwood [1991] AC 398 ). But of the situation where the loss is purely
economic?

Bryan v Maloney (1995) Aust Torts Reps 81-320 The P was the third owner of a house, seven years after
construction. There was extensive cracking due to the builder’s negligence in laying faulty footings. The
majority (Mason CJ, Deane, Dawson JJ) held that:

P’s loss was purely economic.

The DoC was dependant upon proximity and various factors of justice and policy which were relevant.
These were:

- the negligent failure by D to carry out a fundamental requirement of the originial contract to build
could give rise to a DoC in tort to a third party.

- (Policy) The question of indeterminacy is irrelevant as only the P is affected by D’s negligence.

- (Policy) The purchase of a home is often the most important commercial transaction a P would ever
make, and the D is much better able to avoid, evaluate, and safeguard against a latent defect.

- (Policy) It avoids the anomalous situation where the D is liable if personal injury flowed from the
negligent conduct, but not for economic loss incurred to prevent the same.

- There was an assumption of responsibility by D, and a reliance by P.

Architects
Voli v Inglewood Shire Council (1963) 100 CLR 74 The P was injured when a stage collapsed due to the
insufficiency of the joists. The architect was held to be liable for their negligent failure to specify proper
joists. The professional is bound “to exercise due skill, care and diligence…not an extraordinary degree
of skill…but…the competence and skill usual among architects.”

Councils

Sutherland Shire Council v Heyman (1985) 157 CLR 424 The existence of a DoC is dependant upon
reliance, and the nature of damage is relevant (purely economic loss). Note, Brennan J dissenting.

Nervous Shock

The Nature of Nervous Shock

Jaensch v Coffey (1984) 155 CLR 549 per Brennan J it is the “sudden sensory perception - that is by
seeing, hearing or touching - of a person, thing or event, which is so distressing that the perception of
the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness.”

Mt Isa Mines v Pusey (1970) 125 CLR 383 at 394 per Windeyer J, “sorrow does not sound in damages…it
is…today a known medical fact that severe emotional distress can be the starting point of a lasting
disorder of the mind.” This is because, damages are the gist of an action in negligence, and thus,
something more lasting than mere sorrow is required to allow recovery.

Swan v Williams (1987) 9 NSWLR 172 The P was diagnosed of suffering an abnormal grief reaction.
Samuels J held that an abnormal grief reaction was not a psychiatric illness, and so there was no claim in
nervous shock. However, Priestlye and McHugh JJ held that it was sufficient to ground a claim.

Andrewatha v Andrewatha (1987) 44 SASR 1 The P was a man who cared for his wife who had been
severely disabled in a car accident for a prolonged period of time. He suffered a depression as a result,
and sued in negligence for nervous shock. However, he was unsuccessful, as the Court held that the
depressive state was a result of the prolonged care, rather than the shock of the accident. That is, the
Court held that the illness must result from a sudden trauma or shock. Thus, his depressive state was
resultant from the prolonged stress of caring for his disabled wife, was not nervous shock.

Recovery for Nervous Shock

Victorian Railways v Coultas (1888) 13 App Cas 222 (PC) The P was a passenger in a carriage driven by
her husband. They crossed a level crossing as a train approached. The P suffered a terrible shock and
suffered a miscarriage. The Court accepted that the reason for this was because an employee had
forgotten to draw the boom gates. The Privy Council held that in the absence of physical injury, recovery
for nervous shock was barred.
This situation gradually changed, and in the 20th Century, nervous shock was actionable regardless of
physical injury.

Dulieu v White [1901] 2 KB 669 allowed for nervous shock for the fear of the plaintiff’s own safety.

Hambrook v Stokes [1925] 1 KB 141 it was held that recovery for nervous shock for the fear for the
safety of a close relative.

Chester v Waverley (1939) 62 CLR 1 The P was a mother of a small child who had gone missing.
Employees had dug a deep trench, which had filled with water. The child had fallen in, and had
drowned. She was at the scene when the trench was dredged, and she saw the body. She brought an
action in negligence for the nervous shock she suffered. However, the HC held that it was unforeseeable
that the mother would suffer a psychiatric illness in such circumstances.

Dooley v Cammel Laird [1951] 1 Lloyds Rep 271 A load fell from a crane the P was operating, due to the
negligence of other persons. He was aware that many of his workmates were working directly under the
crane. He was certain that he had killed many of his workmates, and suffered a severe psychiatric illness.
No-one actually died in the accident. However, he was successful in suing his employer for nervous
shock.

Mt Isa Mines v Pusey (1970) 125 CLR 383 Is another example of nervous shock resulting from the fear of
safety of others.

Chadwick v British Transport Commission (1967) 2 All ER 945 The P lived near a railway line, and there
was a dreadful train crash, in which many were killed. The P heard the crash, and ran from his home to
provide aid. He crawled into the wreckage to try and rescue people. Whilst he didn’t effect a rescue, he
talked to people and kept the calm whilst they waited to be cut free. He wasn’t himself injured, but
suffered nervous shock. He was successful in his action against the Transport Commission.

Proximity Issues and Primary/Secondary Victims

Jaensch v Coffey (1984) 155 CLR 549 The P hadn’t been at the scene of the accident, and she first knew
of the accident when she was informed by police. She rushed to the hospital, and saw her husband in
the ICU, and had been told by hospital staff to prepare for the worst. She thought that he would die, and
suffered various psychiatric difficulties as a result. She sued the negligent driver to recover for nervous
shock. The HC held that the accident and its aftermath were sufficient. It was held that the accident and
its aftermath extended to the hospital “up to and including immediate post accident treatment.” The
Court looked at these issues under the banner of proximity. The Courts held that she could recover as
she was reasonably foreseeable, and because she was involved in the aftermath.

Alcock v Chief Constable [1992] 1 AC 310 This action rose out of the Hillsborough disaster where there
was a stampede after a soccer semi-final. The police had negligently allowed 1 of the stands and the
area in front of it to become grossly overcrowded. The pen collapsed and many were crushed to death.
There were 95 killed, and 400 injured as a result. People elsewhere in the ground, and those at home
saw it, as the game had been televised live. This was a test case brought for 16 Ps, all of whom had seen
what had happened, and knew people in the stadium. Some Ps were in the stadium, knowing they had
friends and relatives there. Others had seen it on TV, and knew of people in the stadium. None of the Ps
succeeded. Whilst this was decided under the banner of proximity, there are relevant principles still to
be extracted. Lord Oliver held that primary victims “involved either mediately or immediately as a
participant.” A secondary victim was “no more than the passive and unwilling witness of injury caused to
others.” He emphasized that this distinction was merely a label, and not a rule of law. It was held that all
the Ps in this case were secondary victims. In order for a secondary victim to succeed in a nervous shock,
it was held that the following criteria had to be fulfilled:

- the P must have close ties of love and affection to the victim. This will be presumed in some
situations (e.g. spouses, parent/child) and will have to be proven by evidence in other cases.

- The P must have been present at the accident, or its aftermath, and witnessed it through the p’s own
unaided senses.

- The psychiatric injury must have been caused by direct perception of the accident or its immediate
aftermath.

The HofL held that the duty did not extend to those who saw the accident on TV or to the morgue
afterwards. It was held that there was “no pressing policy need” to extend recovery as there is “no
logical stopping point…where the elements of immediacy, closeness of time and space and direct visual
or aural perception are absent.”

White & Ors v the Chief Constable of South Yorkshire H of Lords 3.12.1998 The police brought an action
for nervous shock from the events of Hillsborough. The H of L held that the police were not rescuers, but
gave assistance to the injured. The police were never in physical danger themselves. Further, it was held
that they weren’t rescuers, as they were doing their jobs. Thus, they were unsuccessful on this ground.
They further argued that the police were employees, and therefore they were ‘primary victims’ because
of the duty owed to them by their employer, but the ordinary principles for the recovery for nervous
shock still applies. That is, Alcock control mechanisms, and thus, they did not succeed. Further, two
policy grounds were enunciated to deny liability and these were firstly, a question of whether the police
should recover where the victims of the deceased did not, and secondly the risk of a wide scope of
potential liability for psychiatric harm.

Coates & Anor v GIO of NSW (1995) 36 NSWLR 1 Kirby P held that recovery for nervous shock is not
precluded merely by the fact that the deceased’s children were not in the sight or hearing of the
accident or its aftermath. He held that the law should recognise that “it is…the direct emotional
involvement of a P in an accident” that is relevant to nervous shock.

The factors relevant to a DoC in Australia for nervous shock today are:

- reasonable foreseeability of nervous shock injury

- recognised psychological illness

- sudden shock

- involvement in an accident or aftermath.

- Close ties of love and affection to victim(s).

Morgan v Tame [2000] NSWCA 121 12 May 2000 The Respondent was involved in a car accident. In the
course of investigating the accident, a "P4 Report" was completed by the Police. The P4 Report had been
incorrectly filled out and showed the Respondent as having a blood-alcohol reading of 0.14. That was
the reading of the other driver involved in the accident. The correct reading for the Respondent was nil.
The Respondent was informed of the error by her solicitor. Subsequently she was told by the Police that
the entry was a mistake and that it had been corrected. Notwithstanding that the Respondent was
informed that all parties knew that the P4 Report had been filled out incorrectly, she developed a
psychotic depressive illness. It was held that it was not reasonably foreseeable that a person would
develop a psychiatric illness due to an error in filling out an accident form.

Annets The P was not successful, as there was no sudden shock, and had not been involved in the
accident or the aftermath.

However, the above two cases have been granted special leave to appeal to the HC, so this is not settled
law.

Quayle v State of New South Wales [1995] Aust Torts Reports 81-367 The Ps were the mother and two
brothers of an aboriginal man who hung himself in prison. He had been suffering from severe
depression, and alcohol withdrawal symptoms, and thus, the brothers took him to Broken Hill Hospital.
The hospital handed him over to the police, who unlawfully detained him, at which time he hung
himself. A police officer ran into a brother, and told him that his brother had hung himself. The police
asked the other brother to identify the body on a public street, as they were taking him to the hospital
morgue. All plaintiffs were successful, as a single judge of the District Court held that third party
communication should be compensable.

s 4 of The Law Reform (Miscellaneous Provisions) Act 1944 provides liability…(for) injury caused…by an
act neglect or default by which a…person is killed injured or put in peril shall extend to…nervous shock
sustained by…

(a) a parent or the husband or wife of the person killed etc….

(b) any other member of the family where such a person was killed (etc) …within the sight or hearing of
such member of the family.”

Note Kirby P’s judgment in Coates v GIO. This legislation does not deny a P the right to rely on the c. law,
but the question has been left open by the HC in Jaensch v Coffey.

Negligent Misstatement

Derry v Peak It was held that P could only recover where the misstatement was fraudulent.

Candler v Crane Christmas Lord Denning dissenting held that the D, an accountant owed a duty to a
third party who he or his employer may show the accounts to. This duty extended to persons who used
the accounts for any transaction for which the accountant knew they were prepared.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 4652 The majority of the HofL preferred Lord
Denning’s approach in Candler v Crane. The Ps were advertising agents who placed ads for their clients
Easy Power. They would provide the money required, and recover the expenses from the client later.
They requested a credit report on Easy Power from the bank, which they provided. However, there was
a disclaimer, which excluded liability. In obiter, the HofL held that if:

- “in a sphere in which a person is placed…

- that others could reasonably rely upon his judgement or skill…

- a person takes it upon himself to give information or advice…or allows his information or advice to
be passed on to another person

- who…he knows or should know will place reliance upon it,

- then a duty of care arises.”

Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 Evatt wished to invest in a
subsidiary of MLC’s and asked MLC’s advice regarding whether it was a viable investment. MLC stated
that it was, and Evatt invested in the company. However, it went backrupt, and Evatt sued MLC. The
question was whether MLC owed a duty of care. The HC found that there was DoC, and applied Hedley
Byrne v Heller. Barwick CJ held that the D is liable, notwithstanding a lack of a special skill. A willingness
to proffer the information was sufficient. However, the PC held that there was no DoC where there is no
specialized skill.

Shaddock v Parramatta City Council (1981) 36 ALR 385 The P’s solicitor called Parramatta Council to
determine whether there were any road widening proposals. They also sent a written request for the
information. The Council stated that no such plans existed. This was a misstatement, as the clerk filling
out the form had neglected to check whether any proposals were proposed. There were road widening
proposals for both roads on which the property Shaddock bought, and thus, the zoning was no longer
commercial (the property was too small). Thus, they sued the council. Each of the five justices of the HC
held that they preferred Barwick CJ’s view in MLC v Evatt that no specialized skill is required in itself, but
rather, it is a factor in determining whether there was reasonable reliance. Gibbs CJ held that the
principle of reasonable reliance “would…accord with general principle that a person should be under NO
duty to take reasonable care that advice or information he gives is correct unless:

- he knew or ought to know that the other relies on him to take such reasonable care

- and may act in reliance on the advice or information…

- and unless it would be reasonable for that other person so to rely and act.”

San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act (1986)
162 CLR 340 The P was a property developer who saw plans published by Sydney City Council and the
EPA about the redevelopment of Wooloomoloo. It wasn’t a final plan, and nor did it state that these
plans would be put into effect. The developer bought property in Wooloomoloo on the basis of these
plans. However, they were dropped. San Sebastian sued the council and the EPA arguing that they had
been negligent in preparing and publishing the plans. The Court looked at the scope of the DoC, and to
whom it was owed. It was held that the D was not liable on the basis that:

- it is necessary that the D intends that P (or a class of persons of whom P is one) should act on the
statement
- and D must make the statement with the intention of inducing P in reliance on the statement to act
or refrain from acting in a particular way

- in circumstances where D would realize that economic loss would be suffered if the statement were
incorrect.

Caparo Industries Plc v Dickman [1990] 2 AC 605 The HofL took a narrow view of a DoC. The auditors of
a company were negligent in preparing accounts which were relied upon by a potential investor who
bought lots of shares on the basis of those accounts. The company folded, and the investor sued the
auditor. The HofL held that no duty existed, where the defendant has no specific knowledge of the
transaction in respect of which the plaintiff relies on the information or advice. They further look at the
purpose for which the information is given.

R Lowe Lippman Figdor &Frannck v AGC Advances Ltd (1992) VR 671 It was held that a DoC doesn’t
exist merely because the D knows that the information will be communicated to the P. The D must make
the statement with intent to induce the P to rely on and act upon it.

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 71 ALJR 448 Peat was a very large
firm of chartered accountants, who were the auditors of a company. Esanda was a finance company
which lent a large sum of money to an organization by the name of Excel on the basis of the audited
accounts provided by Peat Marwick, who handed over a copy of the accounts to Esanda. Excel goes
bankrupt, and Esanda commenced proceedings in the SASC, and Esanda submitted a statement of claim
stating that Peat Marwick owed a duty of care, and it did not include that Peat had made the statement
with the intent of inducing Esanda to rely on it. The Ds sought to have the statement of claim struck out
as a proper cause of action had not been disclosed. The appeal to the HC was regarding the strke-out
application. The question was whether Esanda had disclosed a proper cause of action - whether they
had pleaded all the elements of the action. The HC provided separate judgments.

Brennan CJ held that the P must prove that:

- D knew or ought reasonably to have known that the information or advice would be communicated
to the P

- And that information or advice would be communicated for a purpose which would be “very likely to
lead P to enter into a transaction”

- And it would be “very likely that P would enter into such a transaction in reliance on that
information” and thereby risk economic loss.

Thus, Brennan CJ held that there was no duty.

Dawson J held that there is a requirement for proximity and reasonable reliance. Where there is no
request from the P, the D must intend to induce the P to act. He adopts the “purpose” test in Caparo.
(No duty)

Gummow J held that the intention must extend to knowledge that something will happen as a virtual
certainty. But, gives no general rule, asi ti would be inappropriate on a strike out application. (No duty)

McHugh J held that an intent to induce reliance of P is not a necessary element - as there maybe a
request for information, or an assumption of responsibility or other factors (not specified) which give
rise to a DoC. Policy considerations such as increased cost of auditing, decrease in competition,
reduction in the standard of services, cost of insurance, fair and efficient loss absorption, and that the
fault of the auditor is only a secondary cause of loss means that no duty exists.

Gaudron and Toohey JJ held that the “law has not yet developed to a point permitting precise definition
or description.”

Tepko v Water Board HCA 5 April 2001 Tepko owned a lot of land in Western Sydney. The company
wanted the land rezoned in order to subdivide it into residential property. They required water and
sewerage facilities to be connected. They borrowed a very large amount of money in Swiss Francs in
order to get this done. There was difficulty in getting the land rezoned, and thus, in making payments.
The bank requested an estimate for the cost of the connection. The Water Board refused. The P lobbied
local members of the NSW Parliament, and persuaded a local member to approach the Minister for
Natural Resources for the information. The member gets a letter from the minister which gives an
estimate of 2/1/2 million dollars. The bank puts the company into liquidation and appoints a receiver, as
it believes that the company can never pay back the money. The letter is from the Minister to the MP.
The figure is wildly inaccurate, and the true estimate is less than a million. The P sues the Water Board
arguing that its negligence caused the bank to put the company into liquidation. The majority of the HC
(Gleeson CJ, Gummmow & Hayne JJ in a joint judgment, & Gaudron J) held that the Water Board did not
owe Tepko a DoC. The majority:

- referred to Barwick CJ in Evatt and San Sebastian and held that:

(1) the speaker must/ought to realize that the recepient intends to act on the information.

(2) It is reasonable in all circumstances for the recipient to accept and to rely on the utterance of the
speaker.

- Referring to Perre v Apand, significant matters for the existence of a DoC include:

(3) foresight of the likelihood of harm

(4) knowledge/means of knowledge of an ascertainable class of vulnerable persons.

The minority (Kirby and Callinan JJ in a joint judgment and McHugh J) imposed a DoC because:

· D had a monopoly on the information.

· The P trusted the D to make a proper estimate.

· D knew that in due course P is likely to be in a close business relationship with the D.

Omissions

Generally, liability is incurred only for an action, not for failing to act. A pure omission is not tortious.

A pure or mere omission is where the failure to act is the only conduct causally linked to the P’s loss.
Where an omission takes place in the course of a larger activity, it is not a mere or pure omission, and it
is actionable.

In some circumstances, there will be a legally recognised pre-existing duty to take positive action. (e.g.
occupier of land).

Hargrave v Goldman (1963) 110 CLR 40 the D was a farmer who had a huge property in WA. A very
large tree was struck by lightning and caught on fire. The farmer, when he became aware of it, took
tankers of water out to it, chops it down, and sprays the water over it. It smoulders for a couple of days,
after which it flared up again, destroying both his and his neighbour’s property. The neighbours sued the
farmer arguing that a DoC existed. The HC agreed, stating that there is a duty “to exercise reasonable
care where there is a fire upon his land (although not started or continued by him) of which he knows or
ought to know, if by the exercise of reasonable care, it can be rendered harmless or its danger to
neighbours diminished. On appeal to the PC, the PC went further than the HC and stated that “the
development towards a measured duty of care by occupiers to remove or reduce hazards to their
neighbours…the standard ought to require of the occupier what it is reasonable to expect of him in his
individual circumstances.”

Geyer v Downs (1977) 138 CLR 91 A student who goes to school early is hit over the head with a softball
bat by another student. The principal knew that students arrived early, and omitted to provide
supervision. The HC held that as the students are the pupils of the school, by virtue of the relationship,
the school had a duty to refrain them from hurting one another.

Smith v Leurs (1945) 70 CLR 256 The Ds were the parents of a thirteen year old boy who fired a stone at
another child, using a slingshot, damaging his eyesight. The HC held that the parents owed a DoC to
control their son. However, it was held that they had not breached their duty, as the parents had
forbidden the boy from using it in the general direction of other people.

Wormald v Robertson [1992] Aust Torts Reports 81-180 Demonstrated that a publican who knew of the
drunken state of a patron who assaults another patron, is liable. The publican owes a DoC to their
patrons that they restrain the drunk from assaulting them.

L v The Commonwealth (1976) 10 ALR 269 There is a duty upon prison authorities to separate remand
prisoners from convicted, violent prisoners, to ensure their safety.

Lounds v Woods (1996) Aust Torts Reps 81-376 The P was a young epileptic man who was on holiday
with his parents near Terrigal. He suffered an epileptic fit, and the mother remembered that there was
a doctor up the road. She sent the daughter to call on the doctor, who refused to come, as he was too
busy. The mother also called an ambulance, but the P had suffered irreversible brain damage by the
time it had arrived due to oxygen deprivation. Evidence was adduced that had the doctor arrived at the
time he was asked to, he could have stopped it by administering a normally available drug. Kirby and
Priestle JJ found that the doctor owed a DoC due to his circumstantial proximity, and the societal and
policy consideration, which lay an expectation upon doctors that they come to people’s aid. However,
there is no requirement of a general duty to rescue.

Rescuers
The DoC owed to rescuers is independent of the duty owed to the person put in peril.

Haynes v Harwood (1934) All ER 103) - the position used to be that the duty owed to rescuers was
dependant upon that owed to the rescuee.

Videan v British Transport Commissioner [1963] 2 All ER 860 It was held that whether the rescuee was a
trespasser, or guilty of contributory negligence is irrelevant in regard to the duty owed to the rescuer,
which is independent.

Horsley v Maclaren (“The Ogopogo) [1971] 2 Lloyds Rep 410 A passenger fell from a yacht due to his
own fault, and the owner’s unsuccessful maneouvres prompted another passenger to jump after him.
The owner (if found negligent) would have been responsible for the drowning of the second.

The duty owed to rescuers is based on their foreseeability. This is aptly demonstrated in Chapman v
Hearse (1961) 106 CLR 112.

Crossley v Rawlinson (1981) 3 All ER 675 The P was an Automobile Association man who saw the D’s
truck on fire on the other side of the road. The tarpaulin hadn’t been properly affixed the tarpaulin,
causing it to drag across the road surface, sparking off a fire. The P tripped on a manhole, and injured
himself. It was held that he wasn’t owed a DoC, as it wasn’t foreseeable that he would trip over and hurt
himself.

Harrison v British Railways [1981] 3 All ER 679 The railway employee ran to catch the train and was
hanging on to the moving train. The guard leans out to pull him in and they both fall out. The duty was
still owed to the rescuer. The guard should have pulled the emergency stop leaver so there was a 20%
reduction of damages.

The argument of volenti has been refuted on the basis that the duty thrust upon the rescuer in an
emergency, whether legal or moral intercedes to exclude all real choice, regardless of the rescuer being
a volunteer or a professional.

Baker v Hopkins [1959] 3 All ER 225 The P was the executor of the estate of a doctor, who went down a
well to rescue workers who had been overcome by fumes. He too was overcome by the fumes, and
died. It was held that he was owed a DoC by the employer, and the Court held that there was no
contributory negligence, as the P’s actions must be judged in the emergency that existed.

Pure Economic Loss

There is no longer a blanket exclusion for recovery on the basis of purely economic loss in Australia. This
is still the case in England.

Weller & Co v Foot & Mouth Disease Research Institute [1966] 1 QB 569 The D was the F&M, whose
negligence allowed F&M disease to escape. The cattle in the area were affected. The farmers had to kill
their cattle. The Ps were stock engineers and stock yards, who made huge losses, when the stockyards
were closed as a result of the outbreak. They sued the institute. However, the Court refused to impose a
duty of care to purely economic loss. This was based purely on the following policy reasons:

(a) indeterminate liability

(b) disproportion between the D’s liability and the extent of culpability

(c) concurrent duties in tort and contract

(d) the need for certainty in the law

(e) the effect of insurance.

Caltex Oil (Aust) Pty Ltd v the Dredge “Willemstad” (1976) 136 CLR 529 Caltex had an oil depot on the
shores of Botany Bay. The Oil Refinery was owned by the Australian Oil Refinery, across the bay. They
built a pipeline under the bay from the refinery to Caltex. The Willemstad ran over and smashed the
pipeline due to the master’s negligence. The oil could no longer be passed through the bay, and Caltex
had to pay for trucks to go around the bay to collect the oil. The pipeline was owned by the refinery, and
so, Caltex sued on the basis of purely economic loss, and was successful. The HC held that the general
rule is that damages are not recoverable for economic loss which is NOT consequential upon injury to
person or property. Foreseeability alone is not sufficient to allow for recovery. In exceptional cases,
where the D has knowledge or means of knowledge that P individually, or P as an ascertained member
of a class (and not merely a member of an unascertained class) is likely to suffer economic loss, the D
will owe a DoC. The Court held that it would not formulate a principle that would cover all cases in
which a duty is owed…all facts of a particular case must be considered (Gibbs J). Stephen J held that
policy considerations are also relevant.

Each of the justices delivered a separate judgment, and there is no discernable single ratio. In Mitsui
OSK Lines Ltd v The Ship ‘Mineral Transporter’ (1983) 2 NSWLR 564; (1986) AC 1 (PC) The Supreme
Court applied Caltex however, the PC applied the no recovery test, and was scathing in its criticism
of Caltex. However, no attention has been paid to the PC’s criticism.

The cases after Caltex have shown the difficulty of applying it.

Ball v Consolidated Rutile Ltd (1991) 1 QdR 524 The P was a professional prawn trawler, who trawled in
the bay. The D was a sand mining company, who allowed a larger sand dune to slip into the bay, causing
lots of pollution and debris, which caused the D’s business to suffer. However, the P failed, as they could
not demonstrate that the D knew of the Ps individually, or as members of an ascertained class.

Christopher v MV ‘Fiji Gas’ (1993) Aust Torts Reps 81-202 The Ps were crew members of the Antonia
which was damaged as a result of the negligent navigation of the Fiji Gas which ran into the Antonia. The
Ps sued for loss of income. But, the Ps were unsuccessful, as the Court applied Caltex’s distinction
between ascertained and unascertained classes. The Court held that the distinction was “not very
satisfactory” but there was no alternative test. The difficulty was at the margins in differentiating
between ascertained and unascertained classes. It was held that Ps were members of an unascertained
class.

Hawkins v Clayton (1988) 164 CLR 539 Hawkins was the executor of a client and also a beneficiary.
Clayton had prepared a will, and kept it in safe-keeping in the offices. They did not realize that the client
had died, and the will remained in the offices, until Clayton retired, at which time, a solicitor realised the
mistake. The property was now worth considerably less. The Court held that they could have found the
P easily had they checked. The question was whether Clayton owed a duty of care. This was determined
on proximity principles. It was held that in cases of pure economic loss, the relationship of proximity will
be characterized by some additional element which will commonly, but not necessarily consist of known
reliance or the assumption of responsibility. It was held that the factors determinative of the existence
of proximity vary in different categories of cases. It was held that Clayton owed a DoC.

Bryan v Maloney (1995) 69 ALJR 375 The Ps loss was held to be the cost of repairing the faulty footings.
The courts looked at significant policy considerations. It was held that cases of mere economic loss are
special, and they commonly involve “an identified element of known reliance…or the assumption of
responsibility or a combination of the two.”

Perre v Apand (1999) 73 ALJR 1190 The P was a potato farmer in S.A. and they shared a boundary with a
property to whom the D’s supplied seed. The D negligently supplied seed infected with bacterial wilt.
Whilst the P’s crop was unaffected, they suffered economic loss, as their main market was W.A, which
had a statute which prohibited the importation of potatoes “grown, harvested, brushed or packed”
within a 20 km radius of the affected property. The D knew of the existence of this statute. The HC
referred to and approved Caltex stating that there is no general rule that there is a DoC not to cause
reasonably foreseeable financial harm. However, there are circumstances where recovery for pure
economic loss is available. The major policy considerations in this arena are the need to avoid
indeterminate liability, and a need to avoid making ordinary commercial activity tortious. The Court held
that they were members of an “ascertained class” and the D knew, or had the means to know who the
members of the class were at the time of the negligent act. It was held that just because the class is
large, does not mean that liability is indeterminate. The P’s vulnerability was an impornant factor
(Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ)

Gleeson CJ:

- favours an incremental development of the law

- the Caparo test relies on concepts which are imprecise

- the P’s vulnerability, propinquity, control exercised by D are all important factors.

- D had knowledge of an “ascertainable class of vulnerable persons.”

Gaudron J held that categories of case - protection of legal rights - a discrete category of liability for pure
economic loss.

Mchugh J:

- Caparo test relies on concepts which are indeterminate and imprecise.

- No duty merely b/c D impairs a “precise legal right.”

- Incremental approach is the most satisfactory.

- Reliance and assumption of responsibility are indicators of P’s “vulnerability.”

- The degree and nature of “vulnerability sufficient to found a duty will vary from category to category
and case to case.

Gummow J:
- doesn’t favour “the imposition of fixed categories”

- prefers the approach of Stephen J in Caltex - “salient features” which combine to constitute a
sufficiently close relationship to give rise to a duty.

- The salient features of this case are that the D knew of the risk to the P, D had control of the risk, and
P had know power to protect themselves.

Kirby J:

- still favours Caparo test.

- Finds a DoC on a 3 stage test:

(a) reasonable foreseeability

(b) proximity factors: vulnerability, geographical proximity.

(c) Policy

Hayne J:

- favours an incremental development

- Factors important in recognizing a DoC in economic loss cases are indeterminate liability, allow
commercial dealings - D’s act of importing seed to SA was illegal had it been done deliberately.

Callinan J:

- favours incrementa development.

- Factors which in comb. Est. proximity are:

(1) D was in control

(2) P member of a determinate class

(3) Geographical propinquity

(4) Commercial propinquity

(5) P powerless to abate/prevent loss.

(6) No impediment to ordinary commercial activity

Economic Loss Connected to Injury to Person/Property

Economic loss connected to injury to person or property is recoverable dependant upon questions of
causation and remoteness of damage.

SCM v Whittal [1971] 1 QB 337 The P conducted a manufacturing business, which suffered due to the
negligence of an electrical contractor, who severed a cable which cut power to the factory. This destroys
goods which were in the cours of production. The P recovered the value of the damaged goods, and
profit which would have been made on sale of damaged goods. However, the D wasn’t liable for other
profits lost by P solely by reason of disruption to production e.g. goods which might have been for
disruption. This later damage was held not to be recoverable, as it was not caused by the damage to
property.

Spartan Steel & Alloys v Martin [1973] QB 27 The P failed to recover lost profits not consequential upon
damage to the P’s property.

Death

At common law, the death of one person has never been regarded as an injury to another. At common
law, actio personalis moritur cum persona means that if the victim or tortfeasor dies prior to judgment,
the action perishe as well. However legislative reform allows for the survival of a cause of action to the
estate of the deceased. Some causes of action and heads of damage are excluded.

S 2 of the Law Reform (Miscellaneous Provisions) Act states that “all causes of action shall survive
against or… for the benefit of the estate.” Except defamation, seduction, inducing a spouse to
leave…Damages recoverable do not include:

- exemplary damages

- damages for loss of earnings or earning capacity

where death is caused by D’s act, damages calculated without reference to loss or gain to estate
consequence upon death

Where death is caused by D’s act, no damages are awarded for pain or suffering or mental harm, or for
loss of expectation of life.

One amount is awarded and then, apportioned amongst claimants as the Court thinks fit. The basic
principle is that dependants are to be compensated for pecuniary loss resulting from the death: either
actual, or prospective.

Parker v the Commonwealth held that damages “should be calculated in reference to a reasonable
expectation of pecuniary benefit…from continuance of the life.”

S 3(1) states that “when…the death of a person is caused by a wrongful act…and the act is such as would
(if death had not ensued) have entitled the party injured to maintain an action and recover
damages…then…the person who would have been liable…shall be liable to an action for damages…”

S 3(2) states that funeral expenses can be recovered.

S 3 (3) In assessing damages, insurance, superannuation, pension payable as a result of death are not
taken into account.

S 4 allows an action to be brought for the following relatives: wife, husband, brother, sister (including
half brothers and sisters), parent, child, de facto spouse of deceased.
S 7 (definitions) defines parent to include grandparents step parents, person “in loco parentis’, and child
includes grandchild, stepchild.

The Stella [1900] P 161 the widow of a man who died in a shipping accident, where he drowned,
brought an action on his behalf. He had been a paying customer, however, an exclusion clause excluded
liability for death or injury. The Court held that the exclusion clause was valid, and thus, the widow had
no action under Lord Campbell’s Act as the deceased would have had no action, had he survived.

Nunan v Southern Railways [1924] 1 KB 223 A widow was held to have a cause of action where the
ticket of the deceased limited liability. The widow’s damages were not limited because her action under
legislation was new and separate from the personal contract between the deceased and the railway
company.

The wrongful act causing death need not be tortious.

Woolworths v Crotty (1942) 66 CLR 603 Mr Crotty was killed by a faulty light globe he bought at
Woolworths which electrocuted him. It was held that the “wrongful act” could be a breach of an implied
term in the contract.

The relatives are required to establish that the wrongful act caused death.

Haber v Walker [1963] VR 339 Haber was involved in a serious car accident, which rendered him very
disabled. He also suffered a severe depressive illness caused by the accident, leading him to comit
suicide. The relatives sued the negligent driver. The D argued that the causal connection had not been
established between the accident and the suicide. Ultimately the Court found for the widow, holding
that it was the accident which caused the severe depressive illness, which caused the deceased to
commit suicide.

Under s 10 (4) of the Act, contributory negligence will not affect the relatives claim. This is subject to s75
of the MAA and s 151N(5) of the Workers Comp Act.

McIntosh v Williams [1979] 2 NSWLR 543 holds that the action is brought by the legal personal
representative of the deceased - either the executor or the administrator of the estate. This person
brings the action on behalf of all entitled victims.

Concurrent Liability

Concurrent liability occurs where more than one tortfeasor is negligent and causes P’s damage.

The different types of tortfeasors include joint tortfeasors, several concurrent tortfeasors and several
tortfeasors causing different damage.

Joint tortfeasors are where more than one party act together and jointly cause P’s damage. This
includes:

- vicarious liability

- agency
- a duty imposed jointly e.g. two occupiers jointly liable to the injured P.

- where two or more D’s take concerted action to a common end e.g. atuthor, publisher, and printer
of defamatory material.

The plaintiff has one cause of action against all joint tortfeasors. The Ds are jointly and severally liable,
and the plaintiff can recover 100% against any or all of the tortfeasors.

Several concurrent tortfeasors is where two or more defendants, not acting in concert, who
nevertheless inflict a single injury on P (e.g. two negligent drivers collide and injure a passenger in one of
the cars). The P has several causes of action in respect of one injury, and the Ds are jointly, and severally
liable.

Several tortfeasors causing different damage is where the P has two or more different injuries caused by
two or more defendants. In which situation, the plaintiff has two causes of action, each liable for
separate damage.

Traditionally at common law, the rule in Merryweather v Nixon 101 ER 1337 one tortfeasor could not
recover any contribution from another. This position has been abolished by s 5 of the Law Reform
(Miscellaneous Provisions) Act 1944. This allows a concurrent tortfeasor (whether joint or several) to
recover from the others a contribution to the damages paid to the plaintiff.

The contributions legislation is:

- only applicable in tort, and not in contract or other areas.

- The contribution can be claimed by “any tortfeasor liable in respect of damage” so this includes a D
who has settled a claim, not only one against whom a judgment has been entered.

- Contribution can only be claimed from a defendant who has contributed to the “same damage” that
is, joint or several concurrent tortfeasors.

- The contribution can be claimed from a D who “is or would if sued have been liable” so it is
immaterial whether the P actually sues all Ds or that contribution proceedings are brought after the
plaintiff’s claim would be statute barred.

- The contribution recoverable in terms of amount is “such as may be found by the court to be just
and equitable having regard to the extent” of the defendant’s responsibility for the damage.

- Under the leg’n a tortfeasor can join another tortfeasor to the proceedings.

Lister v Romford Ice and Cold Storage [1957] AC 555 the plaintiff was the employee of Romford Ice,
who was injured due to the negligence of a fellow employee - his father. The p sued the employer for
vicarious liability for the employee’s negligence. The plaintiff is awarded damages, and then, the
employer sues the negligent employee for contribution to damages, and receives 100% contribution
from the employee.

s 3 of the Employees Liability Act 1991 states that the joint tortfeasor rule does not apply to a situation
which is comparable to Lister.
Nuisance

Private Nuisance

Hargrave v Goldman (1963) 110 CLR 40 per Windeyer J nuisance is “an unlawful interference with a
person’s use or enjoyment of land, or some right over or in connection with it.”

Harley v Esso Petroleum (1961) 2 All ER 145 This was a test case brought by the plaintiff, who lived in a
terrace in Fullham London against Esso who had an oil depot on the banks of the River Thames. Tankers
would arrive from up the river and oil would be transferred from the river tankers and into storage
tanks. Then, road tankers would come and take the oil from there. A night shift was introduced. The
plaintiff sued under nuisance for the noise from the pumps, a pungent smell, and acid smuts which rose
out of the chimneys which soiled their washing, and damaged their cars. The P sought an injunction - the
general remedy for nuisance. The courts held that the P was entitled to succeed as it was held that the
emissions of acid smuts seriously impaired the enjoyment of land. Further, the smell wasn’t “merely
trivial” and was particularly pungent. Finally, the noise at night was held to be a serious nuisance which
went beyond a triviality.

St Helens Smelting Co v Tipping (1865) 11 ER 1483 The court held that a private nuisance could occur:

(i) by interference with the P’s use and enjoyment of land

(ii) by material damage to property.

It was held that the factor of locality was irrelevant where there is material damage to property (i.e.
who’s there first). In other cases, the question of locality is a factor to be considered. (Not necessarily a
decisive factor. This case was approved in Harley v Esso.

Title to Sue

Oldham v Lawson (No 1) (1976) VR 654 Where the P is not the owner, they have no proprietary interest
in the property, and thus had no standing to sue. In this case, the A leasehold interest is sufficient. The
Court held that as the P’s wife owned the property, the husband had no title to sue.

Khorasandjian v Bush (1993) QB 727 The P was successful in an action for nuisance as the D had been
making phone calls and other harassing conduct. This was despite the fact that she had no proprietary
interest - she lived with her parents, and thus, didn’t own the property.

Hunter & Ors v Canary Wharf (1997) All ER 426 overruled Khorasandjian and re-established the
requirement that the P must have a proprietary interest in the land to sue.
Which Rights are Protected

Victoria Park Racing & Recreation Grounds Co LTd v Taylor (1937) 58 CLR 479 The P owned a
racecourse, and Taylor’s property shared a boundary with the racecourse. He constructed a platform on
his property such that you could watch the races. He entered into an agreement with the local radio
station whereby they could broadcast the race. The HC held that the D’s actions did not affect the use
and enjoyment of the property, as it was a racecourse, and the D’s actions did not disrupt its operation
as a racecourse. It had an effect on the takings the owner got, but it was held that an action in nuisance
does not protect that interest.

Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia (1986) VR 383 The defendants
were unionists who picketed Dollar sweets. They had formed a large picket line outside the P’s premises,
preventing other employees from entering the premises. The Supreme Court of Victoria held that this
constituted nuisance, as the use and enjoyment of land was hampered by the defendant’s preventing
others from entering the P’s premises. It was held to interfere with the P’s right to free access to and
from the property.

Broderick Motors Pty Ltd v Rother (1986) Aust Torts Reps 88-059 The D purchased a car from a used car
dealer, which was not in good working condition. As a result, he parked the car on the street, with a sign
which stated: “For Sale; Distance Travelled: Unknown; Purchased from: Broderick Motors. Be the
10th owner of this bomb.” The plaintiff sued in nuisance. However, it was held that it was not nuisance
as the D had simply parked the car on the street, and had not interfered with the use and enjoyment of
his land.

Animal Liberation Vic (Inc) v Gasser (1991) 1 VR 51 The defendants were opposed to the use of animals
in a circus, and demonstrated outside the plaintiff’s circus. Patrons had to walk the “gauntlet” with
demonstrators shouting slogans. This was held to be nuisance by the Ds by “besetting” the property and
putting entrants in fear for their safety.

Factors in Determining What Conduct is Nuisance

Halsey v Esso looked at whether the factors of smell, noise, and pollution were “mere trivialities.” That
is, the real question is, was the D’s conduct reasonable?

Munro v Southern Dairies Ltd (1955) VLR 332 It was held that triviality is measured according to
ordinary notions.

St Helens Smelting Co v Tipping Held that the question of locality is only relevant in cases of intangible
interference, and not where there is material damage, and even then, it is one of many factors
considered.
Clarey v The Principal & Council of The Women’s College [1953] 90 CLR 170 The defendants were the
Women’s college who leased premises to students. The neighbours brought an action in nuisance for
the noise generated by the students. However, the HC held that the noises were of the sort incidental to
the occupation of the property, and thus, the neighbours were unsuccessful.

McKenzie v Powley the Ps were the neighbours of a Salvation Army hall, who commenced services at 7
am on a Sunday. The ps brought an action in nuisance, and the SASC agreed that the noise constituted a
nuisance at 7 am, but not at 9 am.

Robinson v Kilvert (1889) 41 Ch D 88 The P used a warehouse to store delicate paper products, and a
manufacturing process of the D’s required heating, the heat damaging the Ps products. However, it was
held that where P is involved in “an exceptionally delicate trade” he cannot recover for nuisance.

Hollywood Silver Fox Farm v Emmett (1936) 2 KB 468 The D’s son fired off shots close to the pens of
silver foxes under the instructions of D, maliciously in order to annoy the P. When alarmed, silver foxes
eat their young, and refuse to breed, and this happened as a result of the D’s son’s actions. The Court
held that as the D had acted maliciously, the P would recover, even though the P’s activity was
hypersensitive.

Who Is Liable

The D does not need to have proprietary rights in the land from which the nuisance emanates.

Fennell v Robson Excavation Pty Ltd (1977) 2 NSWLR 486 The D was a contractor who was found to be
liable for creating a nuisance even though he was not in occupation or possession of the land. He had
excavated so much land that the Plaintiff’s house started sinking.

Where an owner adopts or continues a nuisance, they are liable.

Sedliegh-Denfield v O’Callaghan (1940) AC 880 The local council installed a drainage pipe on the D’s
land. In installing it, they had trespassed. The D didn’t know of this, but when they came to know of it,
they used the pipe to drain their property. The result was that some of the drainage had overflowed on
to the Ps property. The court held that the D was liable for nuisance, as they ahd allowed the nuisance
to continue, and they had further adopted it. D “continues a nuisance if with knowledge of its existence,
he fails to take any reasonable means to bring it to an end.” D adopts nuisance “if he makes any use of
…(the thing) which constitutes the nuisance.”

Montana Hotels v Fasson Pty Ltd (1986) 69 ALR 258 The Ds were in possession of a faulty downpipe,
which caused the hotel to be flooded. However, it was held that the Ds weren’t liable as the D didn’t
know or didn’t ought to know of the downpipe. There is an obligation to stop nuisance where the D
knows of it.

Goldman v Hargrave [1967] 1 AC 645 (PC) It was held that once the farmer became aware of a danger
on the property they should have taken steps to eliminate or reduce the danger. The PC held that it
wasn’t the actions of what the reasonable person would have done that is taken into account, but the
D’s resources - physical and financial, which are taken into account.
Leakey v National Trust [1980] QB 485 The Trust was the occupier of a property which was on Burrow
Hump, which was liable to slip. The D knew of this, and did nothing. The P suffered damage as a result,
and the D was held to be liable in nuisance, as they didn’t take any remedial action, and their resources
were more than sufficient to undertake the work. This followed Goldman v Hargrave.

Defence of Statutory Authorisation

Where an act of parliament expressly or impliedly authorizes the creation of a nuisance, it is a proper
defence.

Managers of The Metropolitan District Asylum v Hill (1881) 6 App Cas 193 The asylum was a creature
of statute, which was charged with the job of setting up a hospital for people with contagious diseases.
The neighbours brought an action in nuisance. The Ds argued that they were statutorily authorized to
set up the hospital, and thus, were immune from an action for nuisance. The court held that where a
statute expressly states the authorisation, this is true, where it is implied, the onus is on the D to
demonstrate the authorisation. The Court held that the weight of evidence didn’t favour the
authorisation.

York Bros (Trading) Pty Ltd v The Commissioner for Main Roads (1983) 1 NSWLR 391 The Commissioner
built a road bridge across a navigable river, which obstructed the flow of the river. The Ps sued in
nuisance. The Ds argued statutory authorisation by the Main Roads Act. The NSWSC held that the act
did not provide a defence. Powell J held that:

- prima facie, it is not the intent of the legislature to authorize nuisance.

- D must show that the work was reasonably necessary

- And that it was properly performed

- AND that there was no reasonable way of performing the work without creating a nuisance, in light
of available scientific knowledge.

Public Nuisance

Public nuisance affects the public at large, is a crime, the action is brought by the Attorney General, and
private individuals don’t have standing to sue unless they have suffered particular damage that is over
that which suffered by the public at large.

AG v PYA Quarries Ltd (1957) 2 QB 169 Denning J held the following on the question of how many
persons are “the Public”:
“I decline to answer how many people…I prefer to look at the reason of the thing… a public nuisance
is…so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect
one person to take proceedings…but it should be taken on the responsibility of the community at large.”

Worker’s Compensation

The Worker’s Compensation Act 1987 has been significantly amended by the NSW parliament in 2001,
with the Compensation Court hearing only existing claims and eventually ceasing operations. New
claims are to be determined by the Compensation Commission with the aid of expert panels. Common
law rights are subject to further amending legislation still to be finalized. These rights are to be
substantially limited. A judicial enquiry headed by Justice Sheahan was set up to look at some of these
proposed changes and has recently reported to parliament.

The pieces of legislation governing Worker’s compensation in NSW are: the Workers Compensation Act
1987, Workplace Injury Management and Workers Compensation Act 1998, and Workers Compensation
Legislation Amendment Act 2001 (still to be proclaimed). The former two pieces of legislation are to be
read as if they are part of the same act. Where there is a discrepancy, the later act prevails. (s2A). The
1987 act continues to govern liability to pay compensation, entitlements (other than to lump sums) and
Common Law claims. It is anticipated that c. law claims will be significantly restricted or even abolished
by further amending legislation in 2001 or 02.

The 1998 Act primarily deals with rehabilitation and injury management and procedures for claims
(including conciliation). The claims and procedures provisions have been amended by the 2001 act and
apply now only to old claims. “Injury management” is defined as the process that comprises activities
and procedures that are undertaken or established for the purpose of achieving a timely, safe and
durable return to work for injured workers. (s42(1)).

The 2001 Act makes significant amendments relating to lump sum compensation and sets up new claims
procedures. Disputed claims are referred to the Workers Compensation Commission for assessment.
The Compensation Court only has jurisdiction in respect of existing claims. It will eventually cease to
exist.

The legislation at present:

Creates rights on a no-fault basis for injured workers and their dependants(where the worker is
deceased)

Is in addition to common law rights BUT

Limits workers right to damages at common law

Requires workers to elect between recovery at w.c and common law recovery.

s 4 defines a worker as “a person who has entered into or works under a contract of service or
apprenticeship with an employer…” N.B. it includes state govt employees, but, fed govt employees have
their own scheme. The common law provides the definition of a ‘contract of service.’ (Zujis v Wirth,
Stevens v Brodribb, Hollis v Vabu). Under sch1 of the 1998 Act, some contractors (eg outworkers) and
certain industries (eg cane cutters, timber fellers, fencers) are classified as deemed workers.

Injury s4 ’87 Act:

personal injury arising out of or in the course of employment

includes diseases of gradual onset (s15 & 16)

includes aggravation, acceleration, exacerbation of any disease/illness/condition.

Psychological injury (s 11A)

Dust diseases (Workers Compensation (Dust Diseases) Act)

Journey provisions - injuries received on a periodic journey (home to work & back) are compensable
provided there is no interruption or deviation which materially increases risk of injury (s10)

THERE MUST BE A CAUSAL CONNECTION BETWEEN THE EMPLOYMENT AND THE INJURY

Serious and willful misconduct by the worker disqualifies them from compensation unless the injury
results in serious permanent disability or death. (s14)

Periodic payments - a weekly sum

Total incapacity - for the first 26 wks of total incapacity the worker is paid the current weekly wage rate,
with reference to the AWARD rate. After this time, the worker is paid a lesser amount, prescribed under
the Act (having regard to dependants) or 90% of the A.W.R. whichever is less. (s36)

Notional Total Incapacity - where the emp’er can’t provide suitable light work to emp’ee who is partially
incapacitated, the emp’ee is deemed totally incapacitated and is entitled to compensation accordingly.
This is restricted to one year. (s 38(2)) (s 38)

Partial incapacity - where a worker is unable to do pre-accidental work and is being paid a lesser wage
‘cos of the partial incapacity is entitled to the difference between actual and probable weekly earnings
but for the injury.

Lump Sum Benefits for claims under pre-2001 leg’n:

Are in addition to weekly benefits.

s 66 Lump sum compensation for permanent loss or impairment of body parts - Table of Disabilities

s 67 pain & suffering compo subject to a threshold - worker must be entitled to atleast 10% of max
payment under s66.

Max amt payable is avail. Only in a “most extreme case” (s67(3))

Lump sum benefits under 2001 leg’n

(Applies to injuries occurring after commencement of the Act)

s 65 &66 omitted

new s66 lump sum compensation for permanent impairment calculated as prescribed by the regulations
on the basis of the degree of permanent impairment resulting from injury. Degree of impairment to be
agreed or assessed by approved medical specialist (with provision for appeal to a panel only on very
limited grounds)

new s67 compo for pain & suffering only for workers whose degree of permanent impairment is greater
than that prescribed by the regulations. Max amt not to exceed $50 000.

Death Benefits

s25 - wholly dependant persons paid a lump sum, if more than one the sum is apportioned.

Dependant children entitled to weekly compo payment to age 16 or 21 if student

Partial dependants awarded a portion of lump sum in discretion of commission

Medical expenses - s 60

Common Law claims under W.C. Act

sig. Limitations on entitlement to and calculation of damages.

Election provisions - worker must elect b/w commencement of proceedings @ c.law & payment of w.c.
benefits under s66/7 (s151A)

Election is irrevocable (w/out leave of court and deterioration in worker’s condition)

If a worker elects to proceed @ c.law, and is unsuccessful, then cannot come back to s66/7 claim.
If damages awarded, then a worker is not entitled to any w.c. benefits and any benefits already paid will
have to be repaid.

The time limit for common law claims is three years…except with leave of the Court. (s151D)

The threshold for c.law damages discourages minor claims. S 151G states that the sum for damages for
pain and suffering is to be awarded only in most extreme cases and if damages assessed at below a
specific figure, then NO damages payable, and a deductible (i.e. reduction) applies up to a higher figure.
S151H states that there will be no damages for economic loss unless there has been a serious injury -
one where there is at least 25% of the s66 benefit would be payable or damages over a certain amount
would be payable for non-economic loss.

Common Law damages are to be subject to further amending legislation following the Sheahan Report.
It is anticipated that it will include:

A 20% “total body impairment” threshold before c.law proceedings can be brought

No damages for pain and suffering - just direct ec. Loss e.g past & future earnings, out of pocket
expenses etc.

No election would have to be made b/w workers comp. and c.law.

Motor Accidents Compensation

The Motor Accidents Act 1999 unlike the Workers Compensation Act leaves the common law regarding
negligence intact. It simply ‘fiddles’ with the damages available and provides a threshold before one can
sue.

It commenced on 1.10.99 and applies to accidents after that date. The old act (MAA1988) as amended
applies to matters arising before that date. It significantly alters and reduces the rights of claimants to
compensation for injuries received in motor accidents. The political motivation for this is to reduce costs
of compensation, legal costs, and thereby the cost of “Green Slip” insurance. It is designed as an
assessment and settlement procedure whose aim is to keep cases out of the court system.

Definitions:

Motor accident: accident or incident caused by the fault of the owner or driver of a motor vehicle in the
use or operation of the vehicle.

Injury: personal injury includes pre-natal injury, psychological or psychiatric injury, damage to artificial
members.

Procedure for all claims:

Report to police & lodge notification w/in 28 days of accident (s70)

Insurer must notify w/in ten days whether it accepts provisional liability for medical treatment.