LAW203 TORTS

INTRODUCTION TO TORTSTorts: The law of torts concerns the obligations of people…to respect the safety, property and personality of their neighbours… [Torts] involves questions of how people should treat one another and the rules of proper behaviour that society imposes on each citizen for avoiding improper harm to others, and for determining when compensation for harm is due’ (Owen, SVW pp 3-4).

Aims, purposes and role of tort law:1. Compensation- ‘Compensation is the reparatioin of a wrong by a provision of a sum of money

(damages) awarded by a court’- Damage/harm to a person/property/economic/other e.g. reputation- Idea of ‘comparator’ essential – e.g. wrongful life? – Harriton (HCA, 2006) – life as

a harm?- Fault- Restitutio in integrum- ‘Once and for all’ rule- ‘Knowledge of the future being denied to mankind… there really is only one

certainty: the future will prove the award to be either too high or too law’ Lord Scarman Lim Poh Choo (1980, HL).

2. Deterrence- Industrial safety?- Consumer goods and services?- Occupiers’ liability? Public or private- Professional neg?- Roads?- Effect of insurance?3. Promotion of safety4. Punishment?

Tort theoryA) Economic theorists – Calabresi, Posner, Coase theorem- Search for ‘efficiency’ i.e. minimize costs of accidents + cost of avoidance +

transaction costs – societal perspective- Main focus negligence – ‘fault’ is failure to take interests of others into account –

‘reasonable person’ – precautions- Action as a rational cost/benefit analysis – loss shifting/spreading, but the evidence is

weakB) Corrective justice- Morality as basis of tort – normative – ‘wrongs’, e.g. negligence- Duty to repair harm to others – correct wrongs, cf punishment Examples:- Fault vs strict liability- Responsibility – personal vs. collective, e.g. Cole v Sth Tweed Heads Rugby League

FC Ltd (2004) 217 CLR 469- Foreseeable (avoidable) vs direct consequences, WM I, Polemis- Weinrib, Perry- Dominant theory in tortC) Distributive justice- Distribution of loss and risk in society- Loss shifting and spreading- Insurance

- Favour please?D) Feminist analysis - Fairness?- From whose point of view?- E.g. Griffiths v Kirkmeyer claims- E.g. nature of reasonable person – Rabidue v Osceola- E.g. definition of harm – physical, property, cf mental, early nervous shock cases

Tort law: common law and statute• Pre-2002 – mainly common law (cases) + specific statutes eg Workers Compensation

Act 1987; Motor Accidents Compensation Act 1999• Post 2002 – need to integrate C/L with CLA• ‘Tort reform’ – Civil Liability Acts - post 2002• Context: The ‘insurance crisis’• Collapse of: HIH Insurance group 2001 + United Medical Protection (medical

insurers) + impact Sept 11 on global reinsurance• Perception: incr litigation, incr damages, pro-Pl courts - Simpson v Diamond 2001 -

record $14m• "Negligence: the last outpost of the welfare state… [which] encourage[s] individuals

to hold others responsible for looking after them and protecting them from the consequences of their own conduct” Spigelman CJ (2002) 77 ALJ 432

• incr in public liability premiums early 2002

Causes? solutions?• Federal legislation introd to accommodate tort law reform by states • Negligence review panel estab – chair Justice David Ipp – ‘Ipp committee’• Ipp Terms of reference : ‘The award of damages for personal injury has become

unaffordable and unsustainable …desirable to examine a method for the reform of the common law with the objective of limiting liability and quantum of damages arising from personal injury & death’

• Ipp Reports 2002• 2002 - all Australian jurisdictions passed legislation or Bills to deal with insurance

crisis

Civil Liability Act 2002 (NSW)- CL Act 2002 – mainly regarding damages, backdated back to 20 March 2002- CL Amendment (Personal Responsibility) Act 2002 – mainly regarding liability – 6

Dec, 2002- Consolidated- See also Civil Liability Act 2003 (Qld); Wrongs Act 1958 (Vic); Civil Law (Wrongs)

Act 2002 (ACT); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Civil Liability Act 2002 (WA); Review of the Law of Negligence, Final Report (2002) (the ‘Ipp Report’)

- D Villa, Annotated Civil Liability Act 2002 (NSW), LawBook Co, 2012

Tort law and human rights- Human Rights Act 2004 (ACT)- Charter of Rights & Responsibilities 2006 (Vic)- Both modelled on UK Human Rights Act 1998- No national Bill of Rights or equivalent- Role of tort law?- E.g. protect individual liberty against gov’t – actions against stat authorities, tort of

misfeasance in public office; false imprisonment, assault/ battery- Doctrine of crown immunity abolished

- Interpretation of common law in UK is influenced by internet conventions of human rights

- This is less so in Australia – but see e.g. ABC v Lenah Game Meats P/L (2001) 208 CLR 199 (HCA) and Grosse v Purvis (2003) Australian Torts Reports 81-706 (Qld D/C) – whether tort of privacy?

- Human Rights Act 1998 (UK), s 6 – ‘unlawful for a public authority to act in a way which is incompatible with a [European] Convention [on Human Rights] right’

INTRODUCTION TO INTENTIONAL TORTSTrespass and actions on the caseReading SVW Ch 2, pp. 25-37.

Historical context:- Tresspass – law – French transgression = wrongs- C12- Peremptory writs or forms of action (pleadings)- Vi et armis et contra pacem regis (with force and arms against the King’s peace) - Direct forcible interference with person, goods or land of another incl assault, battery,

false imprisonment- Peace keeping function – similarities with criminal law- Later trespass on the case – negligence, nuisance, etc- Important procedural differences- Trespass – all direct physical contacts- Case – consequentially inflicted injury- Procedural reforms UK C19 abolished forms of action – followed in all Australian

states – NSW last 1972 (Supreme Court Act 1970)- Maitland: ‘The forms of action we have buried, but they still rule us from their

graves’

The following are elements of trespass:1. Directness

‘The invariable principle… is that where the injury is immediate on the act done, there trespass lies; but where… consequential, there the remedy is in case’: Leame v Bray (1803) per Le Blanc J; similar Scott v Shepard (1773)

Hutchixns v Maughan:[1947] VLR 131; SVW p 28Facts:PI drover warned of poison baits (unlawlful) laid on Def’s land – took his dogs on – poisoned – sued in negligence, nuisance and trespass. First instance: PI lost in negligence and nuisance (i.e. actions on the case), won in trespass.

Issue:Injury direct or consequential?

Held:Consequential – no trespass

NB log on highway example – from Scott v Shepberd / endorsed Leame v Bray

Scott v Shepard(1773) 96 ER 525 (notes SVW p 29)

Facts

Lighted firecracker thrown in crowded market – passed on by 2 intermediaries – exploded and injured PI

Held

Direct – because intermediaries acted from ‘compulsive necessity for their own safety and self preservation’

2. Actionable per se - No proof of damage needed (liability) – but relevant to damages (quantum)- Possible exemption trespass to chattels- Reflects importance attached to bodily integrity and land in early common

law3. Fault

- ‘No man shall be excused from trespass… except it may be adjudged utterly without his fault’ Weaver v Ward (1616)

- Trespass ‘does not lie if the injury… although direct… was caused unintentionally and without negligence’: Fowler v Lanning [1959] 1 QB 426

- Fault = intent or negligence – NB intention re act not consequences

Negligent trespass v negligence:‘The distinction between trespass and case is obsolete… instead of dividing actions for

personal injuries into trespass (direct damage) or case (consequential damage), we divide causes of action now according as the defendant did the injury of intentionally or unintentionally… [where unintentional] his only cause of action is in negligence’:

Lord Denning, Letang v Cooper [1965] 1 QB 232

^^ this is the law in UK, but NOT IN AUSTRALIA

Williams v Milotin High Court (1957) 97 CLR 465; SVW p 33

FactsPI on a bicycle struck by truck driven negligently – PI statute barred re trespass but not negligence – won in negligence – def appealed – def argued that action could have been framed as trespass therefore statute barred boh

High court‘The two causes of actions are not the same now and they never were. When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action for negligence for personal injuries include the special or particular damage – it is the gist of the action – and the want of due care. Trespass to a person included neither.’ (p 33-34)

Appeal dismissed.

Ch 3 – intentional interference with the person

Reading – SVW ch 3 pp 39-58

1. Battery

Elements ie what PI must prove- Positive act- Direct and intentional or negligent act- Touching/contact

Rixon v Star City (2001) 53 NSWLR 98; SVW p 41Facts

- PI patron sued casion for unlawful arrest, false imprisonment, assault- PI subject to exclusion order under Casino Control Act 1992 (NSW) – detained by

e/ee in interview room at casino 1.5 hours before police arrived – stress/anxiety- At trial – no assault beause no intention – no battery because no hostile attitude- PI failed re false imprisonment and unlawful arrest because Def acting within power

– CC Act

Court of appealSHELLER JA:

- ‘The least touching of another in anger is battery’: Cole v Turner (1704)- Except for normal every contact: Cole- Touching need not be hostile (Wilson v Pringle [1987] QB 237) nor ‘in anger’ Cole- ‘Any touching of another’s body is, in the absence of lawful excuse, capable of

amounting to battery and a trespass’: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 73 per Lord Goff of Chiveley; Collins v Wilcock

- Collins v Wilcock [1984] 1 WLR 1172, per Robert Goff LJ (later Lord Goff) – every person’s body is inviolate – principal of autonomy. Refer Blackstone’s Commentaries (1830) – SVW p 42

- Exception –‘ exigencies of everyday life’ – implied consent to contact: Collins - or general exception

- Pl’s appeal dismissed

2. Assault

Elements1. Reasonable apprehension of imminent contact: Zanker v Vartzokas

FactsPI accepted lift from def stranger – refused offer of money for sex – def speeded up when she asked to get out – opened door and threatened to jump – ‘Im going to take you to my mate’s house. He will really fix you up’ – van doing 60km/h – PI jumped – injured. Def charged with assault only – denied – conceded false imprisonment – magistrate found for def because no fear of immediate violence on facts – PI appealed

White J (Supreme Court SA)o Discusses assault and false imprisonment – Macpherson v Brown (1975, SA)

– student demo at Flinders Unio ‘Present fear of relatively immediate imminent violence’ – ‘immediate and

continuing fear’ while in caro Barton v Armstrong (1969, NSW) – held: serious threats by phone can put

reasonable person in fear of later violence = assault, even though PI does not know when – depends on circs

o ‘Gist of the offence of assault is putting a person into apprehension of impeding physical contact’: Taylor J Barton

o ‘The effect on the victim’s mind is the material factor, and not whether the def actually had the intention or the means to follow it up’: Taylor J Barton

o Significant in Zanker that PI imprisoned car – continuing fearo Some doubt re Barton circs as assaulto Held: appeal allowed – conviction for assault occasioning ABHo Harm from jumping = ‘occassioned’ whether def foresaw or noto If threat produces fear or apprehension of physical violence… the law is

breached, although the victim does not know when that physical violence may be effected

2. ‘Interaction to use force or create apprehension re use of force’: Hall v Fonceca

Fault:

FactsAction for battery – def claimed acted in self defence to assault during argument – defence upheld at trial – PI appealed arguing no assault as no finding of intent

Smith and Kennedy JJ:- Must be ‘intention on the part of assailant either to use force or to create an

apprehension of the use of force (SVW p 50)- This is an element of assault- Appeal dismissed

3. False imprisonment

Elements:1. Direct act2. Intention/fault3. Deprives PI of liberty without lawful justification

Total imprisonment:Balmain New Ferry Co v Robertson (1906) 4 CLR 379 (HCA) SVW p 55

FactsDefs operated ferry – private wharf – notice near turnstiles: ‘fare of one penny must be paid on entering or leaving wharf’ – PI paid – missed ferry – prevented from exiting turnstile by def’s e/ees unless paid again – PI forced way out

Sued for assault and false imprisonment – lost re both

Griffith CJ – PI free to leave premises by water, so no imprisonment, no assaultO Connor J – abridgement of a man’s liberty is not under all circs actionable – restraint of liberty here an implied term of a contract.‘The company of being lawfully entitled to impose that condition and the PI being free to pass out through turnstile at any time on complying with it, he has only himself to blame for his detention, and there was no imprisonment’ (p 392).

Assault – defs ‘entitled to prevent PI from squeezing through… and justified in meeting PI’s forcible attempt with as much force as was necessary to defeat it’ – if assault, then justified

Robinson v Balmain New Ferry [1910] AC 295 (Privy Council)

• Upheld HCA - Finding for def – Pl entered wharf of own free will – defs entitled to impose fair conditions – Pl could wait for next ferry

 Symes v Mahon [1922] SASR 447 (SVW p 57 notes [3.115])FactsPl told by police with arrest warrant that he had to go with police by train because of warrant – Pl went next day in separate carriage and bought own ticket - mistaken identity HeldMurray CJ - false imprisonment from time of entering train until formal release, because complete submission of Pl to control of def – reasonable belief that no reasonable way of escape

Murray v Ministry of Defence[1988] 1 WLR 692 (H/L); SVW p 58 FactsPl detained on suspicion of IRA involvement – period in own house – not told under arrest until later – C/A held knowledge of imprisonment essential, relying on Herring v Boyle – Pl not imprisoned until told of arrestLord Griffiths (H/L) – all others agreed 

Not essential element of false imprisonment that victim be aware of imprisonment – Herring wrong

• Discusses Meering v Graham-White Aviation (SVW p 58) – e/ee held for questioning at work over suspected theft – unaware that

• Instruction not to allow him to leave - knowledge not essential – eg can be imprisoned while asleep or unconscious – but affects damages

• Note reference to USA Restatement of Torts – Pl must be aware of confinement or harmed by it – but not law in UK, Aust

• ‘The law attaches supreme importance to the liberty of the individual … wrongful interference … actionable without proof of special damage’ (SVW p 59)

ACTION ON THE CASE

Indirect intentional infliction of personal injury (ie NOT trespass) Wilkinson v Downton [1897] 2 QB 57 (Queen’s Bench); SVW p 61

FactsPl (Mrs W) told by Def that H seriously injured – practical joke – travel expenses –‘serious and permanent physical consequences… threatening her reason’

Wright J – Def has ‘wilfully done an act calculated to cause physical harm to Pl …and has in fact thereby caused physical harm… That proposition, without more, appears to me to state a good cause of action’ (test)

Wilkinson 

• Not trespass – indirect (speech)• Not negligence – intentional + Victorian Railways Commissioners v Coultas P/C

1888

• NB Wright J in Wilkinson v D distinguished Coultas & Allsop v Allsop (1860) because ‘there was not…any element of wilful wrong”

• Action on the case – indirect intentional injuryo A on C for physical injury based on intentional statements?o Extension of A on C for physical injury – cf Bird v Holbrook

(1828 spring gun case)

Meaning of intention 

• ‘Wilfully done an act calculated to cause physical harm” W v D• Trespass: intentional act not consequences (actionable per se)• Action on Case – intent re both• Def’s act ‘so plainly calculated to produce some effect of the kind which was

produced that an intention to produce it ought to be imputed to the Def’• Reckless indifference? (objective test?)

Nationwide News v Naidu (2007) 71 NSWLR 471 (C/A); SVW p 62 Facts

•   Pl 30 y/o Fijian male security guard employed by Group 4 to work at Nationwide under NW e/ee Chaloner

• v extreme bullying over 4 years – PTSD & depression• Sued both e/ers in negligence and Group 4 in contract – also in W v D• At trial (S/C) - both defs liable – no finding on W v D – Pl awarded $1.9m.

NSW Court of Appeal Spigelman CJ 

Appeal on neglig should be allowed – so necessary to consider W v D Recognises W v D cause of action as accepted by HCA in Bunyan v Jordan (1937)

and NT v Mengel (1995) W v D cases now either neglig or intentional infliction P. I. P.I. requires recognized psych condition as in neglig Foreseeability & reasonableness not relevant to intention But meaning of ‘calculated’? Psych injury reasonable foreseeable on facts re neglig – but more certainty needed for

intentional tort Discusses Carrier v Bonham (see notes below) McPherson JA Carrier – ‘calculated’ capable of meaning either subjectively

contemplated and intended, or objectively likely to happen’ SVW p 65 Actual subjective intention not required Enough if test of ‘substantial certainty’ satisfied Reckless indifference estab on findings at trial – enough to prove intention as in Crim

L Nature & scale of Chaloner’s conduct – recognized psych injury ‘natural & probable

consequence’ C would have been liable in W v D if suedCarrier v Bonham [2002] 1 Qd R 474 (C/A Qld) - discussed in Nationwide News v Naidu and notes SVW p 65 Facts 

Mentally ill patient B escaped from Qld state hospital - attempted suicide by jumping in front of bus – driver C emotional injury & adjustment disorder – unable to work – econ loss – sued B & state - W v D Held – at trial  B liable for intentional act calculated to cause Pl’s harm – W v D State not vicariously liable

LECTURE 2TORTS

TRESPASS TO LANDMeaning of land:Bernstein v Skyviews [1978] QB 479; SVW p` 79

FactsDefs aerial photographers – took pictures of PI’s stately home and tried to sell to him – PI wrote alleging breach of privacy – no tort of privacy at that time in UK – sued for trespass

Issue Meaning of ‘land’ for trespass? – From heaven to hell (Latin maxim)

GRIFFITHS J- Must balance owner’s rights to enjoy property against public’s rights to benefit from

technology – planes, satellites, etc- Owner’s rights in air space restricted to ‘such height as is necessary for ordinary use

and enjoyment of land and structures upon it’- No trespass- NB see Bocardo v Star Energy [2011] AC 380 (SVW 80) re substrata

Title of the plaintiff –Newington v Windeyer (1985) 3 NSWLR 555 (C/A) SVW p 82

FactsPls occupiers of properties adjoining ‘the grove’ – deceased estate in Woollhara – treated as own – def also occupied adjoining property – wanted to share Grove – at trial pls won in trespass to land

MCHUGH JA- Pls not owners but can still sue in trespass- Re old system title – possession gives good title against all except those with better

(older) titles- Person in adverse (to true owner) possession still has legal interest - Authority that also applies to Torrens title land – conceded in Newington- Conduct that indicates taking of possession here – 50 years, employed gardener and

maintained land, used for parties/weddings etc, paid council rates, vigorously excluded others

- Held – pls won in trespassTrespassory conduct – entry to landKuru v State (2008) 232 CLR 410; SVW p 86GLEESON CJ, GUMMOW, KIRBY, HAYNE JJ

Facts

- Police called to ‘violent domestic’ – Ms K had left and Mr K in shower when police arrived

- Door open – police entered – later asked Mr K if the could look around – he agreed- Later K angrily and repeatedly told police – they did not- K started a fight with the police- K sprayed with capsicum and handcuffed – fell down the stairs – arrested and taken

to the police station – released after few hours- K sued for trespass to land, trespass to person, false imprisonment- Won at trial

Court of appeal- Only issue whether police trespassing in flat at time fight began, i.e. parties agreed

that outcome of trespass to person and false imprisonment claims must be same as trespass to land

- Unanimous finding for NSW – police not trespassers – Crimes Act and CL justification for police to remain on land after permission withdrawn

High court- Appeal allowed – no CL or stat justification to remain on premises – police were

trespassing- Should have left and sought warrant – safeguard for individuals – civil liberties - Plenty v Dillon (1991) 171 CLR 635 – can only enter land with consent or by lawful

authority – police no special rights apart from this- Authority can be revoked – then must leave ASAP- Halliday v Neville – implied licence for all to enter if no physical barrier to notice –

but only for legitimate purpose where no interference with occupier or injury

Halliday v Neville (1984) 155 CLR 1 – discussed Kuru SVW p 88-9Facts

- Police saw Halliday driving out of neighbour’s driveway – knew he was disqualified- H saw police and drove back in- Police walked down open drive and arrested H- H ran to own house – police chased into house – scuffle – H charged with escaping

lawful custody, resist police, assault

At trial- Held – driveway arrest unlawful because police are trespassers – dismissed from

arrest

S/C Vic - Arrest lawful even though trespass occurred – PI guilty of escape from lawful custody

– police entry to home justified Crimes Act (Vic)- Encroachment

HIGH COURT – GIBBS CJ, MASON, WILSON, DEANE JJ- Important issues re liberty- Agreed that appeal can only succeed if police trespassing when arrested PI- Police had implied licence from neighbour to enter driveway

How to determine licence?- Means of access (open, locked gate, etc)- Lawful communication with or delivery to occupier- Public may enter ‘for legitimate purpose that involves no interference with occupier’s

possession nor injury to occupier’

- Implied licence includes police in execution of duties

Held – no trespass – arrest lawfulNB note dissent Brennan J – case about privacy in home – public authority v private dwellings

Lincoln Hunt Aust P/I v Willessee (1986) 4 NSWLR 457 (S/C NSW) – see SVW notes p 90Facts

- Consumer dispute – unhappy client went to PI’s premises with TV reporter and film crew who harassed staff and filmed incl opening interior doors

- PI applying for injunction to stop film being shown on TV because it will bring prejudice to business goodwill

Issue- Trespass – licence – was def a trespasser from outset or only once licence revoked?- NB this case is about competing principles of public’s right to know (freedom of

press) vs individual’s right to privacy and freedom from harassment and invasion of property rights

YOUNG J- H/C reviewed authorities in Neville v Halliday- Common sense attitude to entry onto private premises without express permission- Must analyse express or implied invitation from occupier in each case- Implied invitation generally for limited purposes – entry for other purposes is trespass

from outset- On facts, implied invitation to members of public by business to enter for legit

business purposes only, not purposes of own contrary to interests of occupiers- S/C has jurisdiction to grant injuction to restrain publication of videos, photos, etc

taken by trespasser even if confidential- But will only do so where publication unconscionable- PI must also show that ‘irreplacable damage’ will be suffered if no injuction +

‘balance of convenience’ favours PI (standard test for injunction – Castlemaine Tooheys v Sth Aust)

- PI shown prima facie trespass but not shown irreparable damage - Injunction refused – remedy in damages open

Plenty v Dillon (1991) 171 CLR 635 – discussed in Kuru SVW p 87-88Facts

- Police entered PI’s premises to serve summons on his daughter as neglected child- PI had previously told police entry to premises refused and should serve by mail- PI sued in trespass

Full court S/C SAHeld – no trespass because entry justified to execute legal process – includes service of summons – PI appealed to HCA

High court – Mason CJ, Brennan, Toohey JJ- 3rd rule in Semayne’s case (1604) – entry justified at common law for execution of

king’s process- Does not justify breaking down the door to serve summons on present facts- No statutory power either in circs

GAUDRON AND MCHUGH JJ- Irrelevant that there was no damage to land

- Purpose of trespass to land is not just compensation for harm but also vindicates PI’s right to exclusive use and occupation of own land

- Irrelevant that PI uncooperative or unreasonable- Held – appeal allowed – judgment of full court set aside – sent back to FC to assess

damages for trespass

INTERNATIONAL INTERFERENCE WITH CHATTELSSVW ch 5 pp 95-128Definition – chattel moveable property or goods, i.e. not attached to land, tangible e.g. cheque, and intangible e.g. $ value of cheque

Interference with chattels (POSSESSIONS/BELONGINGS) – possible causes of action:- Trespass - Conversion- Detinue- NB consider action on the case or negligence if chattel is damaged (harm present)

Which cause of action?- Significant overlap between trespass/conversion, and detinue (a legal claim to collect

wrongfully obtained goods)/conversion (the changing of real into personal property, or joint into separate property)

- Use trespass to chattels where conversion excluded- Main remedy damages, but detinue (only) also allows restitution of chattels

Factors to consider:- Title to sue – actual possession- Whether harm?- Remedy sought – damages or restitution?

Trespass to chattels:- Same elements as other forms of trespass – direct, fault, actionable per se? (query

whether chattels actionable without harm)- Act by def which intentionally or negligently directly interferes with PI’s actual

possession of chattel at time of interference without lawful justification- Only the person with actual possession (control) has title to sue, must also have

intention to control (SVW p 99)- Possession means factual control, not ownership (e.g. Newington v Windeyer)- Need not to be lawful possession- Exceptions to need for possession – bailment ‘at will’ (terminates on demand) or ‘for

a term’ (agreed period e.g. until car repaired by garage)- Bailment = transfer of possession for a limited time by a bailor to bailee – may be by

contract but not essential- Bailor at will can sue for trespass to bailee’s possession but not true for bailor for a

term

Title to sue – possessionPenfolds Wines P/L v Elliott (1946) 74 CLR 204; SVW p 100Facts

- Penfolds’ customers bought wines in trademarked bottles from P – P owned bottles- Customers included E’s brother left bottles with def Elliott to be refilled with E’s

bulk wine – P sued E in trespass and conversion- NB see above on bailment

Issue - Whether P has title to sue in trespass, i.e. meaning of possession

DIXON J (maj)- Trespass depends on invasion of possession- Here, no invasion – brother gave possession of bottles to E – brother may be bailee

but not important - A has title to sue for trespass to goods in B’s possession where B is bailee, servant or

agent of A- Termination of bailment may allow bailor to sue in conversion but not in trespass- Bailee cannot commit trespass to goods which holding for bailor unless e.g. complete

destruction or significant change to nature of goods- Held – no trespass

Chairman National Crime Authority v Flack (1998) 86 FCR 16 (Fed C/A) SVW p 103Facts

- Police searched Sydney premises- Sole occupant tenant Ms Flack- Search warrant to look for drugs belonging to adult son – son and others had keys- Found briefcase with large amount of cash – F denied any knowledge – police

confiscated- No prosecution by NCA – 3 years later still refused to return briefcase- Argued F not sufficient title to sue for return (finder case)- Finding for F at trial – appeal by NCA

Issue- Whether an occupier of premises manifests a sufficient intention to control (possess)

all chattels, known and unknown, which are on the premises (subject to only one superior right) to give title to sue? (SVW p 104)

HEERVEY J- Relevant time re intention to possess is immediately prior to finding of chattels- F ordinary residential tenant – therefore possession of premises – sufficient to

establish intention to possess all chattels on premises- Endorses Parker v British Airways Board (UK C/A) – occupier of private home

normally manifests necessary intention to control – better claim than finder- Possessory right exists even where chattel hidden or deliberately placed on premises- F has possessory rights against all except true owner – common law- Statutory rights? Police may only seize for purposes of investigation/prosecution- NB ‘the power to enter on private property and seize goods is a substantial

interference with ordinary liberties and should not be extended- Appeal dismissed

TAMBERLIN J- Largely agrees with Heerey J - Appeal dismissed- Others with keys to F’s house – licensees of F – not extinguish F’s possession &

control of premises- Possession depends on occupier’s power to exclude others (control)- Intention to possess chattels which not aware of – legal fiction - prefers rebuttable

presumption of fact- Nature of premises & location of goods v important

CONVERSION (TROVER)

Definition

The essence of conversion is dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the property … in the chattel’ Penfolds v Elliott per Dixon J

Title to sue- Either actual possession when wrongful act done- OR right to immediate possession at that time

NB conversion – actual possession OR right to immediate possession – compare trespass – actual possession only

Right to immediate possession: at time of conversion- Where bailment, bailee has immiedate right to possession- If stolen, bailee (not bailor) has title to sue- See Sadcas v Business and Professional Finance

Sadcas v Business and Professional Finance [2011] NSWCA 267 SVW p 113Facts

- Cedars leased food shop from landlord Sadcas – rented kitchen equipment from defs for 4 year term

- Business failed – Cedars moved out leaving equipment behind but continued to pay reduced rent on equipment

- Sadcas re-let shop Feb 2006 – new tenant used equipment although not included in lease

- August 2006 – defs (resp) terminated lease on equipment and demanded its return

Issue- Whether landlord re-leasing shop containing rental equipment – conversion of

equipment?

GILES JA1. PI must have possession or right to immediate possession at time of conversion to sue

in conversion- Conversion is wrong against possessory interest not ownership interest – so finder

can sue in conversion- Def bailed equipment to Cedars via contract (rental agreement) so could not sue in

conversion unless right to immediate possession- No such right in February 2006 as agreement still on foot

Def’s argument:1. Had common law rights in addition to contract – under C/L bailment ended when

Cedars parted with possession by vacating shop – cite Union Transport v BCA and Penfolds

• Accepts that could be termination of bailment at C/L but not necess to decide• No bailment on present facts – must be conduct of bailee wholly inconsistent with

bailment – vacating shop not obvious breach of agreement and maybe not constitute parting with possession – not inconsistent with Def’s rights

2. Argument based on Smith v Bridgend County Council – rejected• If no conversion by landlord in Feb 2006 then def no immed right to possession

- Landlord an involuntary baillee – re-leasing shop did not prevent Def from taking equip back

- Mere possession (equip in shop) not conversion - Transfer of possession to new tenant – does not purport to transfer title to tenant, or

right to possession- Use of goods is not a conversion: Penfolds (Dixon J) (SVW p 117)

- Held – no conversion- Whealey and Handley JJA agreed

Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385 (UK C/A); SVW p 114Facts

- Pls Union T sued defs for conversion of car- Defs auctioned car in good faith for Smith to innocent 3rd party – Smith bailee of car

under HP agreement – selling goods breach of HP agreement – terminiate by default notice and repossession. Pls won at trial (Lawson J) – appeal by auctioneers

ROSKILL LJ (Maj – Bridge and Cairns LJ similar)- Common law – if bailee acts in way that destroys basis of contract of bailment, bailor

may end C and acquired right to immediate possession of chattel- Only issues whether C/L varied by contract on facts- Possible to contract out of C/L position, but requires ‘very clear language’ – not here- Smith had possessory title only under HP agreement – lost when destroyed agreemt

by dishonest act (selling car)- So S could not convey any form of title incl possessory title to auctioneer or innocent

purchaser- Therefore auctioneer liable in conversion- Appeal dismissed- NB intent re act (selling)

Conversion and fault- Mental element must be intent – cf trespass (intent or negligence)- I.e. intention to deal with chattel not to commit tort

Dealings constituting conversion/acts repugnant to right of possession

Using another’s chattelsPenfolds v Elliott (extract 2, SVW p 120) as above

LATHAM CJ- Taking (asportation) of bottles without intent to exercise permanent or temp dominion

not conversion – could be trespass- Actual use of bottles for benefit of def & brother is conversion- Essence of conversion is dealing with another’s goods as owner- Def liable in conversion

DIXON J- Not conversion- ‘The essence of conversion is dealing with a chattel in a manner repugnant to the

immediate right of possession of the person who has the property … in the chattel’ (SVW p 121)

- ‘Damage to the chattel is not conversion, nor is use, nor is a transfer of possession otherwise than for the purpose of affecting the immediate right to possession’ (p 121)

- Intent to deprive true owner of immediate right to possession or impair it is essence of conversion

- No injunction, appeal dismissedWILLIAMS J

- Allow appeal, grant injunction- Conversion because Def’s knowledge that bottles P’s property- Period of dispossession relevant to damages but not liability

- Taking or receiving possession, delivery, detention of goods, denial of title – see SVGW pp 124-128

DETINUESVGW p 128 -132Definition: Demand + refusal – wrongful refusal to tender goods on demand by person entitled to possession

- Detinue wider than conversion – avail against person no longer in possession at time of demand

- Abolished in UK and merged with conversion

LECTURE 3

Defences to intentional torts: 1. Consent2. Necessity3. Self defence and defence of others4. Provocation?5. Contributory negligence?6. Others

1. CONSENTValid consent requires:

1. Volition +2. Information +3. Capacity

There is an onus in Australia on the def to prove consent – defence.Cf UK – Freeman v Home Office (No 2) and NZ – onus on PI to prove no consent, ie lack of consent is an element of offence. Consent can be express or implied, oral or written.

- Fundamental right to self determination (autonomy) competes with other dominant medical principle of beneficence (good of patient)

- Autonomy is so important that patient cannot be compelled to have treatment even where death will result in In re T (Adult: Refusal of Treatent) [1993] Fam 93 (CA); Malette v Shulman (1990) 67 DLR (4th) 321 (Jehovah’s witness succeeded in battery re blood transfusion)

- Possible exemption for pregnant women where foetus will die: In re T, 102 (Ld Donaldson MR). See also in In re s (Adult: Refusal of Treatment) [1993] Fam 123; St George’s Healthcare NHS Trust v S [1999] Fam 26 (CA)

- But held pregnant women not exception: R v Collins [1998] 3 WLR 936, 957 (Judge LJ)

INFORMATION- USA ‘informed consent’ rejected in Australia, UK and Canada- Australia – doctors must inform patients in ‘broad terms’ of nature of procedure:

Chatterton v Gerson, Ellis v Wallsend District Hospital; Rosenberg v Percival- Failure to warn of risks is negligence, not trespass, unless goes to the basic nature and

character of procedure (i.e. vitiates consent): Rogers v Whitaker

CAPACITYAdults – presumption of capacityChildren and intellectually disabled –

- Gillick v West Norfolk Area Health Authority (HL – UK)- Marion’s case (HCA – Australia)

Secretary Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218; SVW p 146MASION CJ, DAWSON, TOOHEY, GAUDRON JJ

Issues:1. Parental consent as exception to need for personal consent to medical treatment of

others2. Is sterilisation an exception falling outside parental power to consent?

Consent – - Gillick – minor can consent when ‘achieves a sufficient understanding and

intelligence to enable him or her to understand fully what is proposed’ (Lord Scarman)

- Approved HCA- Intellectually disabled children higher age for consent- No presumption of incapacity for intellectually disabled children- On facts Marion not capable of valid informed consent

Sterilisation –- Limits of parental power separate issue from child’s capacity- Where parental power, must have subjective consent of parent and welfare of child

(objective)- Authorities unclear – Re Eve (Canada) – non therapeutic sterilisation never in best

interests so never can be authorised under parens patriae jurisdiction- Cf USA – sterilisation for contraception outside parental power but within parens

patriae- Reasons for treating sterilisation differently: fundamental right to procreate,

fundamental right to bodily integrity/inviolability- Sterilisation not within parental power – court order needed – safe guard- Reasons: significant risk of making the wrong decision + serious consequences of

wrong decision- Risk of wrong decision because:

o Complexity of consento Medicalization of decision – ignores social/psych consequenceo Gravity of sterilisation and ethical, social, personal consequenceo Potential conflict of interest between child’s and parents’ interestso Gravity of consequences of wrong decision flows from:

Inability to reproduce, and denial of personal autonomy – social and psychological issues

Held- Non therapeutic sterilisation is special case – no parental power to consent – court

authorisation essential- NB discussion of cost issues re court proceedings- NB High Court unwilling to endorse ‘right to reproduce’ – decision depends on right

to personal inviolability

NB many Statutory Provisions affect consent & may modify common law EgMinors (Property and Contracts) Act 1970 (NSW)Children and Young Persons (Care and Protection) Act 1998 (NSW) Guardianship Act 1987 (NSW)Mental Health Act 1990 (NSW)

Human Tissue Act 1983 (NSW)Migration Act 1958 (Cth)

Parens Patriae jurisdiction- Supreme court has parens patriae jurisdiction – essentially protective in nature:

Marion’s case- Empowers court to give consent on behalf of minors or other persons unable to

consent, e.g. disability or unconsciousness- E.g. MAW v Western Sydney Area Health Service [2000] NSW SC 358 – court order

sought to permit taking of sperm from dying comatose patient to impregnate wife after his death

- Refused – O’Keefe J – parens patriae jurisdiction: ‘does not extend to authorising a non therapeutic surgical procedure …[which] is not a procedure that will preserve the life of the patient…[nor] which will safeguard, secure or promote…the physical or mental wellbeing of the patient…recognition of yet another special case [in addition to sterilisation in Marion’s case, would] operate to weaken the general principle of inviolability of the body of the individual.’ pars [41] and [42] MAW v Western Sydney Area Health Service

Consent must not be exceeded – sporting cases- Issues usually regard degree of force in contact sports especially contact outside rules

of game- Players do not consent to blows which are both deliberate and outside rules:

McNamara v Duncan; Guimelli v Johnson (1991) Aus Torts reps 81-85; Canterbury – Bankstown Rugby Football Club v Rogers (1993) Aus Torts reps 81-246

- Stronger case for implied consent where rougher sports occur, e.g. boxing – Pallante v Stadiums Ltd (No 1) [1976] VR 331 – distinction between blows mainly intended to injure and blows of skill in accordance

McNamara v Duncan (1979) 45 FLR 152 (S/C ACT); SVW p 154Facts – deliberate head high tackle in Aussie rules – fractured PI’s skull – breach of rules – PI sued in trespass (assault)Issue – consent?

FOX J:- No consent- Contrary to rules/deliberate- Endorses difference between breach of skill- Rules and breach of safety rules- PI succeeds

Revocation of consent- Can be revoked but may not operate immediately- E.g. Herd v Weardale Steel & Coal CO [1915] AC 67- Miners strike during underground shift – management refused to bring up miners in

cage until end of shift – held no false imprisonment

2. NECESSITY- Act must be reasonably necessary to protect person/property- Must be urgent situation of imminent peril- Def’s act reasonable in circs and proportionate to risk- Complete defence

Protection of propertyProudman v Allen [1954] SASR 336; SVW notes p 166-7

Facts- Actions for trespass to goods- Def’s car parked in by PI’s car – 3 others pushed car out of way – lost control of it on

slope – crash likely- Def tried to put on hand brake – failed – turned car away from other car – car ran over

embankment into sea- At trial finding for def – action reasonable in circumstance – PI’s appeal only on law

The test is grave and imminent peril !

HANNAN AJ- Discussion various textbook authorities; review of case law- Magistrate correct, appeal dismissed- Necessity a defence to trespass to goods where reasonable steps taken ‘on an occasion

of urgent necessity’ to safeguard property- NB reasonably judged in context of emergency- Does not require interest in property or duty

London Borough of Southwark v Williams [1971] Ch 734 UK C/A; SVW p 167FactsHomeless family squatted in PI’s empty house – PI sought court order for immediate possession – defence of necessity

LORD DENNING- Necessity is defence to trespass to land in some cases of ‘great and imminent danger’- May destroy property to save life – Mouse’s case (1608) – ok to throw valuables

overboard in a storm- Ok to pull down house to prevent spread of fire (Great Fire London 1666)- Not OK killing and eating cabin boy – R v Dudley & Stephens – murder- Not OK stealing because hungry – larceny- ‘The reason is because, if hunger were once allowed to be an excuse for stealing, it

would open a way through which all kinds of lawlessness would pass… Necessity would open a door which no man could shut… So the courts must, for the sake of law and order, take a firm stand … and trust that [the needy’s] distress will be relieved by the charitable and the good’ (SVW p 168)

- NB See cases discussed in Notes pp 168-9 - similar strict approach Aust, NZ - ‘high level’ of danger needed for necessity

- NB Proudman v Allen circs - Def has damaged Pl’s property, Pl left with losses – fair? - cf USA Def may be liable for partial compensation

Necessity and protection of a personIn re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (H/L) SVW p 169Issue – does necessity justify medical treatment in interests of patient where there’s no consent?

LORD GOFF - Public and private necessity – acting for public good or own- 3rd cat – good of another- Necessity principle – may be emergency but not essential- Persons unable to consent e.g. through incapacity – not an emergency

1. Must be necessity to act when cannot communicate with assisted person, and2. Action must be reasonable in all circumstances, and in best interests of assisted

person

- Intervention not justified if more appropriate person is available to act, and- Not justified if contrary to known wishes of assistee, e.g. Jehovah’s Witness cases

Malette v Shulman – trespass- Where incapacity temporary (e.g. unconsciousness) minimum intervention only – you

must wait for consent for additional treatment- Where permanent or semi permanent incapacity – doctor must act in best interest of

patient – need not show treatment necessary – law will treat as consent- Doctor must act ‘in accordance with a responsible and competent body of relevant

professional opinion’: Boalm v Friern Hospital Management Committee [1957] 2 All ER 118

- [NB re negligence, see Rogers v Whitaker and CLA]- Intervention by non professionals justified by necessity- See Marion’s case – consent not necessary where emergency and no capacity and no

one else able to consent- See notes SVW pp 172-75, pregnant women, refusal of treatment, children, force

feeding prisoners, lawful killing e.g. conjoined twins (kill one by surgical separation to save other)

- NB exception – cannot rely on necessity where own negligence caused or contributed to the necessity

3. SELF DEFENCE

- Defence of self- Defence of others – possibly confined to family/household but probably wider- Defence of property – OK to use reasonable force to eject trespasser/deter entry

Fontin v Katapodis (1962) 108 CLR 177; SVW p 158Issues

1. Whether reasonable for def to defend self?2. Whether reasonable/proportionate force?

Facts- Argument between shop assist F and customer K in glass shop- K hit F on arm with set square- F threw glass at K – cut ulna nerve in hand – serious- K sued F for assault and battery and employers re vicarious liability- Def argued self defence – e/ers argued no course of employment

AT TRIAL – BRIDGE J- Held – K assaulted F first, but F exceeded right of self defence – finding for PI + no

vicarious liability – damages payable by F- Damages mitigated (reduced) because of provocation – 2850 pounds down to 2000- F appealed re self defence; K cross appealed on Vic L and mitigation

MCTIERNAN J- Throwing glass out of all reasonable proportion to emergency- Trial judge correct in finding not necessary- ‘Personal quarrel’ – no course of employment – no vicious liability

OWEN J- Agrees with trial judge- Available means of escape not decisive in judging reasonableness- No vicious liability

Civil Liability Act 2002 (NSW)NB s 3B, Pt 7, especially s 52

3B Civil liability excluded from the Act (1) The provisions of this Act do not apply to or in respect of civil liability (and awards

of damages in those proceedings) as follows: (a) civil liability of a person in respect of an intentional act that is done by the person with intent to cause injury or death or that is sexual assault or other sexual misconduct committed by the person- the whole Act except :

(i) section 15B and section 18 (1) (in its application to damages for any loss of the kind referred to in section 18 (1) (c)), and

(ii) Part 7 (Self-defence and recovery by criminals) in respect of civil liability in respect of an intentional act that is done with intent to cause injury or death

PART 7 - SELF-DEFENCE AND RECOVERY BY CRIMINALS Division 1 - Limitations on damages51. Part applies to civil liability for death, injury or property damage52. No civil liability for acts in self-defence53. Damages limitations apply even if self-defence not reasonable response54. Criminals not to be awarded damages54A. Damages limitations if loss results from serious offence committed by mentally ill person

52 No civil liability for acts in self-defence (1) A person does not incur a liability to which this Part applies arising from any conduct

of the person carried out in self-defence, but only if the conduct to which the person was responding:

(a) was unlawful, or (b) would have been unlawful if the other person carrying out the conduct to which the person responds had not been suffering from a mental illness at the time of the conduct. (2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: (a) to defend himself or herself or another person, or

  (b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or (c) to protect property from unlawful taking, destruction, damage or interference, or (d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them. (3) This section does not apply if the person uses force that involves the intentional or reckless infliction of death only:

(a) to protect property, or (b) to prevent criminal trespass or to remove a person committing criminal trespass

4. PROVOCATION?Frontin v Katapodis

- Provocation not a defence to battery- Does not reduce compensatory damages

- But may reduce exemplary (punitive) damages- Frontin approved HCA in Lamb v Cotogno (1987) 164 CLR 1 at 13- See also Horkin v Nth Melb Football Club

5. CONTRIBUTORY NEGLIGENCE?- Not absolute defence – qualified- Apportionment – Law Reform (Miscellaneous Provisions) Act 1965 (NSW) pt 3- Common law – cannot have 100% contribution: Wynbergen v Hoyts Corporation

High Court 1997 – but overturned by CLA (NSW) s 5S

Horkin v Nth Melbourne Football Club Social Club [1983] VR 153; SVW p 164 Facts – PI drunk – licence to be on def’s premises revoked – ejected – more force than necessary – PI resisted – injured – def’s servants guilty of battery

Issue – whether contributory negligence is a defence to battery? (Intentional)

BROOKING J - At common law contributory negligence is not defence to battery- Distinguish between contributory negligence as a defence and as relevant to

mitigation of damages- Cases in UK, NZ and QLD discussed where contributory negligence can lead to

apportionment in battery- Contributory negligence in causation? – overlap but not total: Alford v McGhee- PI cannot escape contributory negligence by pleading car accidents in trespass- Endorses prosser – contributory negligence no defence to intentional injury- Based on difference between fault of PI and def – different in both kind and degree

NB see State NSW v Riley – note 1 SVW p 165 – exception

Day v Bank NSW (1978) 18 SASR 163 (S/C SA) SVW notes p 165Facts – P real estate agent – 2 cheques, one ‘or bearer’, other endorsed by 3rd party – P’s agent (3rd party) received chequeks and deposited to own account with def bank – bank collected cheques for 3rd party – P sued bank in conversion – bank argued contributory negligence

Held – contributory negligence not defence to conversion

6. OTHER DEFENCES Mistake – innocent mistake is usually no defence to intent torts, may be regarding,

e.g. arrest Inevitable accident – either no intentional act, or no intentional invasion of PI’s

interest + all reasonable care taken Self help: reception of chattels – retaking of chattels where right to immediate

possession – reasonable force allowed – no cases since C 19; similar entry on land to re-possess

Discipline: C/L defence regarding e.g. corporal punishment – may be available to parents, teachers

Illegality: may be defence to intent torts and negligence Legal process: entry on land for purposes of legal process may be a defence, e.g. eg

Halliday v Neville (arrest, implied licence, no trespass), Plenty v Dillon (serve summons, explicit refusal of licence, trespass) – can be via authority eg search warrant (NCA v Flack) or statutory

Holder of unwanted goods: various statutory defences e.g. Uncontrolled Goods Act (NSW); former Trade Practices Act 1974 (e.g. unsolicited goods through mail)

NuisanceNB strict liability

SVW Ch 16

2 separate torts:- Private nuisance – from action on case- Public nuisance – from crime

Strict liability vs fault based liability:- ‘Strict’ means fault not an element of the tort, i.e. P need not prove fault (but not

Stockwell v State of Victoria, SVGW p 764)- CF intent based torts and negligence- Does not necessarily mean def is not at fault- Trend in torts away from strict liability since mid late 19th century- E.g. trespass originally strict liability – since 19th century industrial revolution,

urbanisation, rapid transport Stanley v Powell 1890 – not trespass unless fault- Nuisance strict? Influenced by same historical factors as trespass and rise of

negligence- See Burnie Port Authority v General Jones P/L (1994) 120 ALR 42 – def’s building

destroyed by fire caused by contractors welding – PI’s frozen goods ruined – at trial PI’s won in R v F

- HCA in Burnie overruled two strict liability torts – Rylands v Fletcher (1866) and strict liability regarding damage by fire – subsumed into negligence (NB not in UK)

- R v F derived from nuisance or maybe trespass (discussed in Burnie) – ‘non natural user’ of land + bring onto land ‘anything likely to do mischief as it escapes’

- Nuisance variable regarding fault, e.g. damage caused by spreading tree roots – strict: Davey v Harrow Corporation [1858] 1 QB 60; Barton v Chibber (1988) Aust Torts Reports 80-185

- But, no strict liability unless def knows or ought to know: Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478)

- CF criminal liability – actual knowledge or ought to know (mens rea) vs strict (mental element irrelevant e.g. speeding)

Private nuisance Elements

- Substantial and unreasonable interference by def with PI’s right of quiet enjoyment of land

- Interference may be physical or intangible, direct or indirect- Must cause injury (more harm than trivial) to property or interference with personal

comfort (harm): Hasley v Esso Petroleum SVW p 771

Balancing competing interests- Nuisance not about wrongdoing, but about clash of interests/rights- Both parties seeking to use/enjoy own land for own purposes

History- Dates from early 13th century as adjunct to assize of novel disseisin- From 15th century – action on the case for nuisance – direct or indirect – requirement

of damage – may be tangible/intangible – damags

Title to sue- Only those with property rights have standing to sue, e.g. owner/tenant in actual

possession or right to exclusive possession – Hunter, Stockwell- E.g. Oldham v Lawson (No 1) [1976] VR 654 – H & W lived together in property –

W owner – noise nuisance from adjoining premises – H not owner or tenant therefore liscencee – H no standing in nuisance

- eg Khorasandjian v Bush [1993] QB 727

- Nuisance phone calls to daughter from ex partner – new tort of harassment?- UK C/A allowed standing altho no proprietary interest- Based on Canadian Motherwell v Motherwell (1976) 73 DLR )3d) 62 (Alta App Div)- H/L later said incorrect on nuisance - Hunter v Canary Wharf [1997] AC 655

Nature of interests protectedMunro v Southern Diaries Ltd [1955] VLR 332; SVW p 763Facts – PI owner and occupier of premises – def neighbour milk delivery business – horses stabled on def’s premises – PI sued in nuisance for noise, smell, flies

SCHOLL J- ‘Must be a substantial degree of interference with the comfort and convenience of

occupier… or with some other aspect of use and enjoyment of his land’- ‘Must be so substantial as to cause damage’- Must cause injury to property- OR ‘material interference’ with physical comfort (need not show injury to health)- ‘Material interference’ judged ‘not merely according to elegant or dainty modes and

habits of living, but according to plain and sober and simple notions among the English people’: Walter v Selfe (1851) 4 de G & sM 315 at 322

- ‘Not the test of abnormal sensitiveness’- Utility and legality of def’s business not relevant- ‘Coming to a nuisance’ no defence- Must judge nuisance in social and local setting- Held – nuisance- Injunction granted re keeping horses on premises

Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468; SVW p 767 Facts – neighbour dispute over sign, PI breeder of silver foxes, very sensitive, def deliberately short on own land near foxes to cause miscarriage, P sought damages and injunction for nuisance of noise

MACNAGHTEN J- Bradford Corp v Pickles distinguished- No absolute right to act on own premises – qualified by competing rights of

neighbours re nuisanece- Finding for PI – injunction granted

Material physical damage- Damage may be physical and/or intangible – Halsey v Esso- Where physical damage, no need to consider locality and similar factors (relevant to

non physical interference)

Who can be sued?- Creator of nuisance- Person authorising nuisance- Person adopting or continuing nuisance

Continuing or adopting nuisanceStockwell v State of Victoria [2001] VSC 497 (S/C Vic); SVW p 773Facts – PI sued State for permitting wild dogs on its land to move onto PIs land and kill and injure his sheep

Issue

- Whether an owner/occupier of land is under an obligation to protect neighbour’s land from damage caused by natural causes or trespassers, where damage emanates from Def’s land

- I.e. where def ‘continues’ nuisance which knows of but fails to take reasonable steps to abate

GILLARD JDetailed discussion of three cases:

• Sedleigh-Denfield v O’Callahghan (1940) AC 880 (escape of water from pipe on Def’s land installed by trespasser damaged Pl’s land)

 • Goldman v Hargrave (1966) 115 CLR 458 (Def tried to extinguish fire in tree

struck by lightning on own land – not properly put out – fire spread to Pl’s land by wind and caused damage)

 • Leakey v National Trust (1980) QB 485 (soil & rubble on Def’s land fell onto

Pl’s land by natural weathering over time – crack opened up thru dry conditions – Def knew unstable - large amt soil etc fell onto Pl’s land causing damage)

• Def found liable in nuisance in all 3 cases• Recognized liability of landowner for damage to adjoining property by things

occurring on Def’s property, even where caused by trespassers or natural causes

 Pl must establish:1. Pl in actual possession of land, either freehold, tenant, or licensee with exclusive possession2. That activity complained of is a nuisance ie interferes with right of quiet enjoyment3. Nuisance created by Def or by actions or omissions of another or by natural causes

• AND Def has knowledge of existence or circs where ought to have known (constructive knowledge) and allows nuisance to continue

4. Once Def has actual or constructive knowledge and if reas man could foresee that damage might be caused, a ‘measured duty of care’ arises

• ‘Measured duty of care’ comes from Ld Wilberforce in Hargrave v Goldman – ie a duty to abate nuisance/protect neighbour’s property

 • Duty to do what is reas in circs to prevent or minimize known risk of damage to

neighbour’s property – Leaky v National Trust per McGaw LJRelevant factors for breach (not exclusive list):(NB goes to whether Def req’d to do anything at all, and if so, what) 

1. Extent of risk2. Chances of damage occurring = foreseeability3. Foreseeable extent of damage if risk eventuates4. Whether practical to prevent or minimize any damage5. Difficulty and cost of preventative measures6. Time betw becoming award of risk and damage occurringNB Note similarity with negligence – ‘the modern law of nuisance in cases where the Def

does not create the nuisance is v similar to the modern law of negligence’: Gillard J (SVW p 776)

 NB Basis of liability in these circs is FAULT – knowledge + inaction

 Held - State liable

 

Defences to nuisanceSee list SVW p 779• Prescription• Contrib. negligence• Conduct or consent of Pl

Statutory authorization (see Allen v Gulf Oil Refining Ltd SVW p 781

WEEK 4 LECTURE

Negligence – approaching the duty of care:Elements of negligence:

- Duty- Breach (and standard of care)- Causation- Harm

- Duty? Question of law- Relevant standard of care? Law- Breach of duty?- Breach = departure from standard of care – question of fact – but standard is Q of law- Causing? (fact + law)- Compensable type of harm? – not too remote – question of law

Negligence: historical development- C12 - trespass / trespass (action) on the case- Litigated via rigid system of writs (forms of action)- C14 - liability for careless conduct in specific cases eg surgeons, smiths, innkeepers- Early C19 - separate civil (private) wrong of negligence (Govett v Radnidge 1802) –

but no recognised field of ‘tort law’- C19 - failure to take care + caused P’s injuries- Dramatic change mid C19 – breaking down of writ system- Pressures of industrialisation – incr in accidents between strangers – railroads,

steamboats, factories- 1837 –1842 duty as relation betw Pl and Def emerges:- Vaughan v Menlove (1837)- Langridge v Levy (1837)- Winterbottom v Wright (1842)- 1883 - Heaven v Pender - duty of care - Brett MR’s general test not adopted by

majority, but duty concept accepted- 1893 - Le Lievre v Gould- Neighbourhood / proximity – Lord Esher narrows Brett MR’s principle- 1932 - Donoghue v Stevenson - Lord Atkin’s “neighbour principle” - not accepted by

majority - Ld Atkin adopted Brett MR’s view in Heaven as qualified by Lord Esher in Le Lievre

–> modern tort of negligence

Burnie Port Authority v General Jones P/L (1994) 179 CLR 520, [25] (Mason CJ, Deane, Dawson, Toohey, Gaudron JJ):

‘Lord Esher (then Brett MR), in Heaven v Pender (1883) formulated the general – or ‘larger’ – proposition which constituted the first step in the perception of a coherent jurisprudence of common law negligence. Almost half a century later, the House of Lords in Donoghue v Stevenson (1932) effectively completed the process’.

‘The judgment of Brett MR in Heaven v Pender and the speech of Lord Atkin in Donoghue v Stevenson were both concerned with identifying a general unifying proposition which explained why a duty to take care to avoid injury to another had been recognized in past cases in the courts’.

Burnie Port Authority v General Jones P/L (1994) 179 CLR 520, [25] (Mason CJ, Deane, Dawson, Toohey, Gaudron JJ):‘Essentially, the methodology of both was identical: the identification of a general proposition which selected “recognised cases suggest, and which is therefore to be deduced from them” [Heaven, 509; D v S, 580]…and the confirmation of the validity of the proposition by ascertaining that no “obvious case can be stated in which the liability must be admitted to exist, and which yet is not within this proposition”’. [Heaven, 509-510; D v S, 583-584].

On the trail of the tale of the Paisley snail:Donoghue v Stevenson [1932] AC 562 (HL) SVW p 181FactsSnail in ginger beer – purchased by PIs friend – opaque sealed bottle – PI drank – shock and gastro

Lord Atkin – neighbour principle

Personal injury – physical harm caused by actsGrant v Aust Knitting Mills [1936] AC 85 – Privy Council; SVW p 185FactsPI doctor bought long woollen underpants – wore for two weeks, changed weekly – very severe dermatitis, itchy from day 1. 17 weeks in bed, later 4 months hospital. Sued manufacturer and retailer, free sulphites in garment? Probably re evidence as garments washed

HistoryPI won at trial in Sth Australia against retailer in contract and against manufacturer in tort – D v S applied – lost in HCA – appealed to P/C

IssuesNote two factual issues ‘two issues were thus involved…’

1. PI abnormally sensitive skin?2. Too high comfortable concentration of harmful chemical in garment?

Lord Wright - Not sufficient evidence to disturb trial finding that PIs skin normal - Cause of illness? ‘Fair deduction’ that free sulphites in pants – combine with sweat to

form sulphuric acid- Still question re quantity – impossible to prove after washing

- Def failed to discharge onus on proof on appeal – i.e. to show lower court finding wrong – P/C ‘not satisfied that CJ wrong’

- Therefore accepted that disease and damage caused by defective condition of garment- Retailers liable in contract – negligence not relevant

Development of duty of careHedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (H/L) SVW p 190Facts

- PI (HB) advert agents – placed big ads for client Easipower on credit i.e. HB personally liable

- Asked own bank to check EPs financial status with EPs bank- Free phone and written advice given by defs that EP sound- 2nd enquiry – written advice that ‘good ordinary business engagements’ disclaimer- PI relied on advice – EP in liquidation – PI lost 17,000 pounds – sued bank for

negligent advice

At trial: Mc Nair J- Defs negligent- But no duty of care

C/A- No duty

HL (unanimous)- Pls failed because of disclaimer- Clear that H/L would have allowed recovery otherwise and accepted existence of

duty

House of LordsLORD REID

- Innocent but negligent misrepresentation gives no cause of action- Must be ‘something more’ than mere misstatement- Person giving advice accepts responsibility to exercise care

+ trust by recipient + reasonable+ knows or ought to know (reasonable man test) of recipient’s reliance

LORD DEVLIN‘Categories of special relationship …give rise to duty to take care in word as well as deed…include relationships which are ‘equivalent to contract’… ie an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract’

Effect of Hedley Byrne • Persons (eg bankers, auditors, accountants, architects, designers) negligently

supplying false information which is justifiably relied on by others owe a duty of care in tort to those requesting the information

• Subsequently extended beyond information and advice to any undertaking to supply a specialty service, whether in word or deed

• Based on “assumption of responsibility”

Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL); SVW p 191 Facts7 Borstal trainees escaped from camp on island – under supervision of def – all crim records, 5 records of scape – stole yacht – crashed into PI’s yacht – heavy damage (facts assumed to test prelim point re duty)

IssueDuty? (re acts of 3rd parties)

Lord Reid‘In later years… steady trend towards regarding law of neglig as depending on principle so that, when a new point emerges, one should ask… whether recognised principles apply to it. D v S may be regarded as a milestone…

[& neighbour principle] as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circs. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion…’

• Liability not based on responsibility for trainees• But on knowledge by Def that damage of this kind ‘probable’ ie ‘remoteness of

damage’ issue • Q: novus actus interveniens because voluntary human action?• Where human action part of causal chain, must be ‘very likely’ otherwise novus actus• ‘Mere foreseeable possibility’ not enough• Where intervening action ‘likely to happen’, irrelevant whether innocent, tortious or

criminal• Public policy not favour gov’t immunity• NB causation or duty?

Lord Diplock• Issue: is duty to prevent escape owed to persons whose property likely to be damaged

by escapees?• Looks at prison cases – duty – distinguishable• Discussion of liability of stat authorities (Home Office)• Public law concept of ultra vires replaces civil law concept of neglig as test re stat

authorities• No intention by parlt to give civil cause of action to those injured by exercise of stat

powers• No general duty to members of public injured by criminal acts• BUT duty owed to ‘persons whom [officers] could reasonably foresee had property

…in the vicinity – previous record of escapee + place of escape relevant• Def owed Pl duty to prevent escape

Anns v Merton London Borough Council [1978] AC 728 (HL); SVW p 192) Facts 

• Pls lessees in flats built 1962 – 8 yrs later cracks in walls, floors sloping etc – sued builders in contract & council in neglig – failure to inspect foundations properly

• At trial Pls held statute barred• HL held property damage not pure econ loss so cause of action arose when present or

imminent danger to health – not statute barred• NB v similar facts to Sutherland SC v Heyman - Aust HC 1985

Re duty of care:2-stage test:

1. Suffic relationshp of proximity?2. Reasons negativing duty?

 I.e defining the principle for estab duty

• Anns test Adopted Canada & NZ

Rejected in Aust in Sutherland SC v Heyman (HC 1985) - incrementalism• Caparo Industries v Dickman – H/L 1990 – replaced Anns in UK

Caparo 3 stage test:1. Foreseeability2. Proximity3. ‘Fair, just & reasonable’

• Caparo test adopted Kirby J (HCA) – Pyrenees v Day, Perre v Apand, Crimmins 

• Sullivan v Moodie – Caparo 3 stage test discussed by HCA – ‘not the law in Aust’

Salient factors approach to dutyPerre & Others v Apand P/L(1999) 198 CLR 180; SVW p 196 Facts

• Pls grew potatoes on their property in SA for export to WA• Disease negligently introduced by Defs onto other property • Resulted in healthy crops on neighbouring properties (incl Pl’s) being prohibited

from export to WA because of State legislation• Pls claimed econ loss arising from loss of export opportunity

Held 

• All 7 members of HCA found for Pls, although for different reasons – Majority Gleeson CJ, Gaudron, Gummow, Kirby and Callinan JJ

• McHugh J restricted recovery to Pls falling within ascertainable class, distinguishing between them and ‘second line victims” (no duty)

 • Hayne J found in favour of only those Pls who suffered direct damage

 • Significant features of judgements• Differing views strongly expressed by McHugh and Kirby JJ on appropriate method

to be adopted in deciding duty of care generally and re econ loss• Discussion of concepts of indeterminacy, plus interference with commercial

behaviour• 3 different methods adopted to determine duty of care:• Impairment of legal rights (Gaudron and Gummow JJ)• Incremental approach - prevails at present• 3 stage Caparo Industries v Dickman test (Kirby J only, following own views

expressed in Pyrenees v Day)• Agreed principles from case• No longer any general exclusionary rule re econ loss• Concern to avoid dangers of indeterminancy (Ultramares v Touche) and to avoid

converting ordinary commercial practices into tortious conduct• Urgent need to identify “single unifying principle” re duty of care and in particular, re

econ loss (not found yet)

Establishing categories of duty

1. FOR MOST standard cases• SVW pp 210-211• Damage to person / property• Donohuey v Stevenson - neighbour principle + foreseeability of harm

2. Novel cases

SVW p 212Sullivan v Moody(2001) 207 CLR 562; (SVW p 212)

FactsDOCS suspected children of being sexually abused - Pl fathers accused – DOCS neglig – Pls suffered psych injury + financial loss

Issue - whether DOCS owed duty to fathers?

GLEESON CJ, GAUDRON, MCHUGH, HAYNE, CALLINAN JJ• Previous approaches to duty based on search for unifying principle (D v S, proximity)

or category of relationship• Proximity rejected• Caparo 3 stage test rejected• ‘Diff classes of case give rise to diff problems in determining the existence and nature

or scope, of a duty of care…harm suffered by Pl… Def is repository of statutory power … difficulty of confining class to whom duty may be owed within reasonable limits… need to preserve coherence of other legal principles… [then need] judicial evaluation of the factors which tend for or against a conclusion…as a matter of principle (SVW p 213)

• Law of negligence over last 30 years reveal[s]…Difficulty of identifying unifying principles that would allow ready solution of novel problems… [not to be decided] by reference only to some intuitive sense of what is ‘fair’ or ‘unfair’…(p 214)

• Coherence of the law – duty to fathers incompatible with duty to children• Appeals dismissed• Here no duty to fathers because would undermine other principles - cf defamation

SALIENT FEATURES FOR DUTYa. Foreseeability off harmb. Nature of harmc. Degree/nature of control by Defd. Vulnerability of Ple. Reliance by Plf. Assumption of responsibility by Defg. Proximity of Pl to Defh. Category of relationship betw Def and Pli. Nature of Def’s activityj. Degree of danger from Def’s conductk. Def’s knowledge that conduct will harm Pll. Indeterminacy of liabilitym. Nature/consequences of potential action to avoid harmn. Imposition on indiv autonomyo. Conflicting dutiesp. Consistence with statuteq. Coherence in the law CIVIL LIABILITY ACT 2002 (NSW)DIVISION 2 – DUTY OF CARE5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:(a) The risk was foreseeable (that is, it is a risk of which the person knew or ought to

have known), and(b) The risk was not insignificant, and

(c) In the circumstances, a reasonable person in the person’s position would have taken those precautions.

CLA - 5B (cont)(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):(a) The probability that the harm would occur if care were not taken,(b) The likely seriousness of the harm,(c) The burden of taking precautions to avoid the risk of harm,(d) The social utility of the activity that creates the risk of harm.

Reasonable foreseeabilityChapman v Hearse(1961)106 CLR 112; SVW p 218 

Duty of care / foreseeability Rescue case – public policy – ‘moral and social duty” (maj)

 Facts

• Chapman (C) collided from behind with another car• C thrown out on road – unconscious• Dr Cherry went to C’s rescue • Dr Cherry killed by later car driven by Hearse

At trial Action by Dr Cherry’s estate Held: H & C (drivers) both negligent - 75% H / 25% C C appealed to S/C Sth Aust – lost; Appealed to HCA

 Issues

1. whether person injured thru own neg owes duty to his rescuer?2. Foreseeability

 DIXON CJ, KITTO, TAYLOR, MENZIES, WINDEYER JJ

Duty based on foreseeability Test: whether consequence of same general character reasonably foreseeable as not

unlikely Liklihood depends on circumstances of each case (majority) ‘Not unlikely to occur’: Caterson v Commissnr for Railways (Barwick CJ) Reasonable ‘man’ standard – objective ‘Precise manner’ of injury need not be foreseen Injury foreseeable to class (rescuers) Test of reasonable foreseeability easily satisfied eg Kirby J in Crimmins

Unforeseeable plaintiffs Palsgraf v Long Island Railroad Co248 NY 339 (1928) (USA);SVW p 221 NB 4/3 finding for Def on appeal, reversing 3/2 decision for Pl - controversial caseFacts

• Railway platform• Guards pushing/pulling passenger onto train

• Exploding package• Falling scales• Pl injured

Held• No liability - “negligence in the air will not do”• Cannot sue derivatively • NB – need to separate “proximate cause” (closeness of causal connection) from duty

in this case• Negligence depends on relation between Def and Pl (duty), founded on forseeability

of harm to specific Pl

ANDREWS J (DISSENT)• Negligence not dependent on relation between Pl and Def, duty is owed to world at

large

Aust 

• Bale v Seltsam P/L [1996] QCA 288; SVW p 221Pl wife of asbestos worker – wife mesothelioma – Held no duty owed by H’s e/er – unforeseeablwe, but see Dawson v James Hardie – similar facts- Pl won (SVW p 221)

 • Chester v Waverley - HCA 1939

No N/S for mother who saw drowned body of child 

• Annetts v Australian Stations P/L (2002) 211 CLR 317 – parents successful • Both nervous shock – parents n/shock re neg death of child – duty and foreseeability

issues

 POLICY AND DUTY OF CARENB Civil Liability Act 2002 (NSW) 

• Pt 6 Intoxication - esp s 49 - Effect of intoxication on duty and standard of care 

• & s 50 - No recovery where person intoxicated (presumption of contrib. neg if injury would have occurred anyway)

 • & Pt 7 esp s 54 – Criminals not to be awarded damages (see Qld equivalent – SVW p

223-4)

LECTURE 5

Physical harm caused by omission:Example of case brief:Romeo v Conservation Commission NT (1998) 192 CLR 431 (HCA); SVW 230

Facts15 y/o PI and friend fell 6.5m off unfenced cliff at night in nature reserve – some alcohol – no direct evidence re accident – PI paraplegic

Litigation historyPI lost at trial and in CA; lost HC 5:2 (dissent McHugh, Gaudron JJ)

TOOHEY AND GUMMOW JJ Refer maj judgment in Nagle v Rottnest (HCA 1993) – Pl injured diving off cliff –

paraplegic – stat authority Def - Pl won Nagle - failure to warn Romeo - Pl must fail – breach depends on what reas person would have done to guard

against foreseeable risk of injury allowing for possibility that Pl may fail to take care for own safety

‘but this does not mean that [Def] was obliged to ensure, by whatever means, that [entrants] would not suffer injury by ignoring an obvious danger’

Pl pleaded concealed danger – ‘the care to be expected of members of the public is related to the obviousness of the danger’

Duty not extend to fencing off cliff where obvious - No breach

KIRBY J (MAJORITY)(p 232)

Foreseeability & proximity present on facts - duty estab But scope of duty? ‘the measure of the care req’d will take into account the different ages, capacity,

sobriety, and advertence of entrants’ ‘Occupier is generally entitled to assume that most entrants will take reasonable care

for their own safety’**‘where a risk is obvious to a person exercising reasonable care [for own safety] the notion that the occupier must warn the entrant about that risk is neither reasonable nor just’

Scope of duty needs to be tested before event not with hindsight Romeo diff from Nagle because here obvious danger, there hidden danger Suggested precaution to fence cliff – would mean fencing not just site of accident but

all 8km of cliff – not reasonable No breach

 HAYNE J (SVW P 233)

‘the duty is a duty to take reasonable care, not a duty to prevent any and all reas foreseeable injuries’

Case should be based on breach of statutory duty

Ratio ? No uniform approach to duty – see indiv judgments

 HeldPl’s appeal dismissed 5:2Duty and proximity

Per Gaudron J - proximity ‘useful’ but ‘not without its difficulties’ Only Kirby J supported proximity as essential re duty

McHugh and Kirby JJ agreed that content of duty should be determined by principles

in Nagle but diff view on facts – McHugh for Pl (dissent)

Notes re Romeo NB cf obvious risk CLA s 5H – note this case pre-dates CLA – rejection of Nagle

turning point away from Pls – based on distinction betw facts in Nagle and Romeo? Or a contraction of attitudes to liability by HCA?

see notes p 233-36 – comments in Woods v Multi-Sport (see Breach ch) re obviousness esp per Gleeson CJ on Kirby J comment (**):

‘right to describe that observation as a comment. It is not a proposition of law. What reasonableness requires by way of warning …is a Q of fact not law and depends on all the circs, of which obviousness of risk may be only one’. Kirby J agreed in Woods

Modbury Triangle Shopping Centre P/L v Anzil(2000) 205 CLR 254 (HCA); SVW p 238

FactsPl employee in video shop – closed shop Sunday 10.30pm – lights off in carpark 10pm - attacked in carpark with baseball bat by 3 unknowns – badly injured

Issue - Does occupier owe duty re physiical injury inflicted by criminal acts of 3rd parties?GLEESON CJ

Occupier owes duty to lawful entrants Owes duty re physical state of premises Basis of duty is control + knowledge re premises: Cmssnr Railways v McDermott

[1967] 1 AC 169 Control is key in Dorset Yacht• No control here by Def

• No reliance and no assumption of responsibility • No duty• NB relationship betw 2 parties may give rise to duty to protect from 3rd parties eg

employer/employee, school/pupil, bailor/bailee, but exception• ‘General rule is there is no duty to prevent a third party from harming another… the

common law does not ordinarily impose liability for omissions’• Imposing duty re 3rd parties would conflict with general rule that no duty to rescue

HELDAppeal allowed (Hayne, Gaudron, Callinan JJ agreed w/ Gleeson CJ)

Adeels Palace P/L v Moubarak; Adeels Palace P/L v Najem(2009) 239 CLR 420 (NB – major extract causation SVW p 495)Facts

• Adeels Palace large licensed restaurant Padstow – New Year’s Eve party – fight broke out

• Escalated• man punched by Mr M• left but returned with gun • shot patrons M & N (Pls)• Pls sued Adeels for

injury – inadequate security• Pls won at trial (D/C) &

NSW C/A. Lost HCA.

Significance: occupiers liability for crim acts of 3rd parties – Modbury reviewed – interprets duty (s 5B) and causation provisions of CLAIssues1. Whether occupier owes duty to patrons to control/prevent criminal actions of 3rd parties ie same issue as Modbury Triangle. 2. Breach 3. CausationHigh Court – appeal allowed 5:0 (Pls lost)

• Must consider CLA (NSW) + Liquor Act 1982 (NSW) + Modbury • Defs owe Pls duty to take reas care to prevent injury from violent, quarrelsome or

disorderly patrons (req’d by Liquor Act) – L Act imp’t

• Duty not absolute• Reas care in circs means taking reas care to control activities occurring on licensed

premises• No breach unless risk to be foreseen was kind of risk that req’d bouncers as reas

precaution – not proved• Even if breach estab, no causation – absence of security staff not necessary condition

of occurrence of harm• Question of whether duty owed relies on common law• Modbury Triangle distinguished

Product liabilityGraham Barclay Oysters v Ryan (2000) 177 ALR 18 Full Court Federal Court; SVW 243NB TPA (now Competition and Consumer Act 2012 (Cth))+ common law negligence

Graham Barclay Oysters v Ryan (2002) 211 CLR 540; SVW 251Facts

• 184 Pls got hepatitis A from eating contaminated oysters grown in lake• Class action - sued producer/distributor + local council + NSW gov’t which regulated

waterways• faecal contamination after severe storm – complied with mandatory NSW policy to

disinfect – reduces but does not eliminate viral load – water quality testing also needed

 • Representative (class) action under Pt IVA Fed Crt of Aust Act 1976 3 defs – council, state gov’t, Barclay coys & others (growers & distrib)

  Neglig - failure to exercise stat powers to control water pollution

 History

at trial all Defs liable Fed Crt – Wilcox J – common law duty and breach  

Note 6 diff duties alleged in Pl’s statement of claim 

appeal by council upheld (not liable) in Full Fed Crt - maj found no duty owed to consumers; other appeals dismissed (state & Barclays liable in neglig)

HIGH COURT 

Appeal by state & Barclays allowed (not liable) 

& by Ryan against Council (dismissed – council not liable) 

ie no duty 

5 separate judgments – main Gummow & Hayne JJ, Gaudron J agreeing 

Gummow, Hayne and Gaudron JJ agreed on framework for analysis – other 4 judges each proposed own diff framewk

  NB no unifying principle re duty – some agreement re distinguishing Pyrenees v Day

 GUMMOW & HAYNE JJ 

Knowledge of risk of harm (foresight) + power to avert/minimize (capacity) not suffic for duty

Depends on ‘totality of relationship’ betw parties – salient features 

turns on terms, scope & purpose of relevant legislation 

where neglig operates, it co-exists with stat rights, duties & liability 

stat regime may exclude neglig directly/indirectly eg Sullivan v Moody – coherence principle

  but clear legisl intent re duty not req’d eg no liability in Agar v Hyde because control weak (whether members of Internat

Rugby Football Bd owed duty to players re rules - Pls broken necks - No but cf Brodie, Pyrenees – liability because high level control In Ryan council low control Control over some aspect of physical environmt not likely to found duty where harm

caused by 3rd party eg Modbury Triangle (assault in shopping centre carpark – occupier not liable)

relevant legislation is focu Signif that commercial interests (growers etc) engaged in risky enterprise for profit

standing betw council & consumers 

Council no duty to consumers – appeal by Ryan dismissed 

State also no duty to consumers – appeal by state allowedGRAHAM BARCLAY (2002 HCA)KIRBY JRe duty: “The search for such a simple formula may indeed be a ‘will-o-the-wisp’. It may send those who pursue it around in never-ending circles that ultimately bring the traveller back to the very point at which the journey began. Thus we seem to have returned to the fundamental test for imposing a duty of care … That is, a duty of care will be imposed when it is reasonable in all the circumstances to do so.”

Duty: Sport & recreation Agar v Hyde(2000) 201 CLR 552; SVW 255 Facts2 Pls seriously injured playing rugby – scrum collapse – argued rules exposed them to unnecessary risk- sued Internat Rugby board

History Pls lost at trial (Grove J) – no duty – won C/A – lost H/C – trial judge upheld

IssueWhether voluntary sporting body IRFB (Internat Rugby Football Board) which makes rules of rugby owes duty to all players to avoid risk of unnecessary harm?

GLEESON CJ 

Duty of Board to frame & interp rules of game – risk of injury obvious in rugby In C/A control & reliance ID as key elements for duty Signif that adults participating voluntarily – disting school sport

Participation does not imply volenti so as to negate duty

But signif in determining existence & scope of duty Indiv autonomy & public benefit of sport relevant Floodgates argumt – potential liability to all in world playing rugby Defs no control in any real sense as indivs ‘unnecessary’ risk key – risk of any injury could not be actionable in contact sport –

how define unnecessary?Highly subjective – ‘factor which weighs against’ duty 

None of existing categories of duty covers this case No duty – finding for Defs

GAUDRON, MCHUGH, GUMMOW, HAYNE JJ No duty If duty owed to these Pls, must be owed to all rugby players in world – ‘so unreal as

to border on the absurd’ Positive acts disting from omissions – no duty where Def not created risk by positive

actHere complaint is failure to change existing rules

  Indiv members no power to change + rules vary at local level Therefore Defs no control:

Voluntary participation by Pl – v diff from workplace injury Also not analogous to Crimmins v Stevedoring Ind No trespass (assault) by players acting within rules of game – consent

Then how can rule makers be liable?

Indiv autonomy stressed - ‘with autonomy comes responsibility’ Duty by Defs ‘not arguable’

  NB possible exception re school children

CLA (NSW) see sections SVW 260-61 s 5K – defines obvious risk, dangerous recreational activities s 5F – meaning of obvious risk s 5H – no duty to warn of obvious risk

DUTY OF CARE: PSYCHIATRIC OR MENTAL HARMSVW p 261 

Distinguish consequential from ‘pure’ psych harm – both covered Pt 3 CLA Mental harm

Pure mental harm (ie not consequence of injury to person or property of Pl) = nervous shock

Must be reas foreseeability of psych injury Mt Isa Mines v Pusey (1970) 125 CLR 383 per Windeyer J:

‘Sorrow does not sound in damages … cannot recover damages for a shock, however grievous, which was no more than an immediate emotional response to a distressing experience, sudden severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that… damages may be had.’

Milestones in the development of nervous shock:Victorian Railway Commissioners v Coultas (1888) 13 AC 222 Pls driving horse and carriage – gatekeeper at level crossing indicated to cross – almost collided with train – pregnant Pl miscarriage & illnessVic S/C allowed recovery for nervous shock – first case Privy Council reversed - shock not ‘natural & probable consequence’ of neglig & too remote – Pl lost

Milestones in development of nervous shock   

Bourhill v Young [1943] 1 AC 92 H/L – Pl pregnant fishwife – heard but not saw traffic accident and death – prem birth & death of her child – duty owed betw drivers but no duty to Pl

Chester v Council of Municipality of Waverley (1939-40) 62 CLR 1Pl mother witnessed drowned body of her 7 y/o child recovered from rain filled trench in road – severe shock – Def admitted neglig re leaving trench unattended Maj found no duty because Pl not physically present at scene and did not witness drowning - ‘a reasonable person would not foresee that the neglig of the Defs towards a child would so affect a mother’: Latham CJoutrageous decision - Note powerful dissent by Evatt J

Law Reform (Miscellaneous Provisions) Act 1944 (NSW) passed in response to Chester – statutory cause of action for N/S created NSW - ss 3, 4 – but Coultas still the law in other states until reversed in Pusey – ss 3, 4 LR(MP)Act now repealed in part by CLA

Mt Isa Mines v Pusey (1970) 125 CLR 383 – reversed Vic Railway v Coultas Pl assisted co-workers badly burnt in explosion at work – heard but did not see

explosion• Did not know victims – suffered schizophrenia and depression – unemployable• Standard that e/er has duty to provide safe work environment• Therefore HCA held Pl’s action in assisting and ‘the possibility of shock and some

form of mental illness’ was reas foreseeable and not too remote• ie need only foresee recognised class of psych illness not exact illness (see quote

above)

Jaensch v Coffey (1984) 155 CLR 549PI wife of victim badly injured in motor vehicle accident – negligence. PI not present at scene – saw husband later at hospital. Case extends requirement of witnessing event with ‘own unaided senses’ to include immediate aftermath.

Duty to avoid inflicting psychiatric harmTame v NSW; Annetts v Aust Stations P/L

Facts- 2 nervous shock cases heard together – leading Australian case- NB 6 different judgements- Tame – PI in car accident – told by solicitor that police wrongly recorded her as

drunk from blood tests – depression- Annetts – pls told by phone 16 year old son missing from jackaroo job on remote WA

cattle station Dec – e/er had promised to supervise – sent to remote station alone – ran away – died in desert – parents travelled NSW to WA 9 times over 5 months – police search and big publicity – ID skeleton April

GLEESON CJ- Control devices of ‘sudden shock’ and ‘direct perpcetion’ or ‘immed aftermath’ not

‘definitive tests of liability’ – N/S not so limited- Agrees with Gummow and Kirby JJ re above- Endorses Brennan J in Jaensch – see quote p 256 – ‘exigencies of proof [of neglig]

impose the appropriate limits’- Tame – no duty – same reasons as per Sullivan v Moody i.e. conflicting duties +

intersection with defamation + coherence- No reasonable foreseeability of psych injury on facts- Annetts – need to look at factual indicators re duty – not inflexible rules

GUMMOW AND KIRBY JJ (pp 265-71)‘Protection of mental integrity from the unreasonable infliction of serious harm… answers the ‘general public sentiment’ underlying the tort of negligence that… there has been a wrongdoing for which, in justice, the offender must pay’ (p 265)

Negligence:‘…the assessment of reasonableness, which informs each element of the cause of action, is inherently adapted to the vindication of meritorious claims in a tort whose hallmark is flexibility of application’ (p 265)

Discussion of:- Control mechanisms – normal fortitude/sudden shock/direct perception – all

‘unsound’ at common law – but see CLA re normal fortitude - Psych harm – 4 reasons for differentiating from physical harm- Relationship between pls and def sufficient + reasonable foreseeability to establish

duty- Promise made re supervision relevant to foreseeability- Agrees with Gummow and Kirby JJ- All rejected – negligence has its own control devices (fault, causation, remoteness

etc) + must be recognisable psych injury not mere distress etc- Normal fortitude – rejected as pre condition to recovery- Central enquiry is:

‘Whether, in all the circs, the risk of PI sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far-fetched or fanciful: Wyong Sc v Shirt (1980) 146 CLR 40’

- Direct perception and immediate aftermath – Jaensch v Coffey- Bearers of bad news – ‘no duty in law to break bad news gently’

Summary – Annetts - Reasonable foreseeability – fundamental test for duty re physical and psych injury- Normal fortitude – not pre condition to liability – relevant but not essential for N/S

(Annetts)- Sudden shock – not required but relevant factor re nature of relationship

- Direct perception factors – not required but relevant factor re relationship- Mere knowledge – no duty to break bad news gently – Pusey per Windeyer J- Nature of relationship between parties – Gifford v Strang includes non family (but

reversed CLA (NSW) see below))

NB- CLA s 32 (1) – no duty not to cause PI mental harm unless def ‘ought to have

foreseen that a person of normal fortitude might, in the circumstances… suffer a recognsised psych illness’

- I.e. not necessary for PI to demonstrate normal fortitude, only that the breach was such as might foreseeably cause injury to the person of NF

- Then eggshell skull rule operates re extent of harm suffered

Gifford v Strang Patrick Stevedoring P/L (2003) 214 CLR 269; SVW n 3 p 272FactsPls teen children of father crushed to death in work accident – suffered N/S on hearing news

HCA- Lack of direct perception not critical – also accepted that friends may sue- Key is ‘closeness and affection of the relationship – rather than the legal status of the

relationship’- NB decided on pre – CLA law – not excluded NSW by s 30(2) CLA

Contraction of liability for nervous shock – Civil Liability Act 2002 CLA – Pt 3 Mental Harm

- Ss 27-33 inclusive- s 30(1) – N/S from seeing another (the ‘victim’) being ‘killed, injured or put in peril’

by def- s 30(2) – PI must witness at scene or be a close family member- s 30(3) – reduction for secondary victims based on contributory negligence by

primary victim – NSW only state with this- s 31 – must be recognised psych illness- NB NSW provisions on N/S narrower than common law – exclude Gifford v Strang

(H/C 2003) decided on pre CLA law – also narrower than CLA in other states

S 32 duty of care re mental harm- s 32(1) – no duty unless def ‘ought to have foreseen that a person of normal fortitude

might in the circumstances… suffer a recognised psych illness’- NB does not affect eggshell skull rule: Annetts per McHugh, Gummow, Kirby, Hayne

JJ – eggshell skull rule is principle relating to compensation not to liability – i.e. relevant to damages only

‘Circumstances’ or relevant factors Common Law and CLA- Correct approach now based on assess factors not specific rule – Annetts & CLA – all

relevant but not essential normal fortitude (essential CLA)

1. Normal fortitude – rejected by majority in Tame, Annetts but required by CLA s 32(1)

2. Shock – no ‘shock’ required re ‘primary victims’ – see NSW v Seedsman [2000] NSWCA 119 – PTSD claim by police officer working with abused children – no safe system of work – relevant factor but not essential – same CLA s 32(2)(a)

3. Direct perception – relevant but not essential for primary victims – same CLA s 32(2)(b)

4. ‘Secondary victims’ limited by s 30(2) – witness at scene or close family member – no recovery on facts of Pusey (workmates)

5. Nature of relationship between PI and def – s 32(2)(c) – also limited by s 30(2)6. Pre-existing relationship – s 32(2)(d) – e.g. employment or similar – duty found in

NSW v Seedsman – but pre CLA

Psychiatric injury in the workplace NB - Koehler discusses Tame, Annetts - significantly more stringent approach taken in Koehler to psych injury than in Annetts, Gifford v Strang  Koehler v Cerebos(2005) 214 ALR 355; SVW p 273 FactsPl worked P/T as merchandising rep – constant verbal and written complaints that job impossible in time avail – after 5 mths major depressive psych illness – sued e/er in negligence for no safe system of work + breach contract + breach OH&S

History Pl won at trial – workload excessive & injury foreseeable Reversed by WA Full Court S/C – not foreseeable H/C found for Def unanimously

 MCHUGH, GUMMOW, HAYNE, HEYDON JJ (NB separate but similar judgment by Callinan J) 

Duty does not flow automatically from e/er’s duty to provide safe system of work e/ers have duty ‘to take reasonable care to avoid psychiatric injury’ but content of that duty ‘cannot be considered without taking account of the

obligations which the parties owe one another under the contract of employment… equity… and … any applicable statutory provisions...

‘The central inquiry remains whether, in all the circumstances, the risk of a plaintiff… sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful…’

‘ The relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable… and… that invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned’.

UK position in Sutherland v Hatton: whether psych harm to Pl foreseeable not test for Aust

Factors identified in Hatton as relevant to foreseeablity – nature & extent of work, signs from e/ee (express/implied), relevant but ‘not a comprehensive statement of relevant and applic considerations’

Contract of e/mt important in determining scope of duty in neglig Psych injury to K not foreseeable because agreed to do the work Duty owed by e/er to each indiv e/ee Requires e/er to foresee psych injury to this particular e/ee – K’s complaints were

about the work not her psych health so e/er no reason to suspect

‘Insistence upon performance of a contract cannot be in breach of a duty of care’ – legal coherence

Rejected argumt that all e/ers should recognise all e/ees at risk of psych injury - Pl lost

LECTURE 6

Psych injury/ mental harm (cont)• Civil Liability Act 2002 (NSW) Pt 3, ss 27-33• Ref D Villa, Annotated CLA (2013) 385-415

Wicks v State Rail Authority (NSW)(2010) 241 CLR 60; SVW 280

• Imp’t case for stat interp CLA Pt 3FactsPolice (Pls) rescuers called to train accident –many people trapped and 7 fatalities – Pls on scene for several hours – psych injury – SRA admitted neglig - Pls lost at trial + lost in C/A – duty not decided in bothHigh CourtFrench CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ Held - Finding for Pls on duty – ie Pls appeals allowed with costs & orders of C/A set aside - remitted to C/A for hearing on facts

• Both lower courts treated key issue as whether Pls ‘witnessed, at the scene, the victim being killed, injured or put in peril’ ie CLA s 30(1)-(4)

• Pls lost because decided on facts that did not ‘witness at the scene…’ ie called to scene after accident occurred

• HCA says wrong approach – need to decide duty re psych injury first before deciding whether CLA s 30(2)(a) is engaged – ‘unless’ in s 30(2) indicates an exception ie a limitation on entitlement to damages

• S 27 – definition s – identifies ‘consequential mental harm’ (consequence of personal injury) and ‘pure mental harm’ (anything not consequential)

• S 31- requires harm to be ‘recognisable psych illness’ – not estab at trial on facts in Wicks

• S 32 defines or controls what would otherwise be duty at C/L – so must be considered before limitations imposed in s 30(2)

• No provision of CLA identifies when duty re mental harm will exist• Necessary condition for duty in s 32(1) is that Def ought to have foreseen that a

person of normal fortitude might in circs suffer recognised psych illness if care not taken

• S 32(2) identifies 4 kinds of circs – sudden shock, witnessing at scene, relationship betw Pl and victim, and relationship betw Pl and Def – but does not specify what consequences flow from these

• S 32 must be understood in context of C/L and Tame v NSW – HCA rejected sudden shock, normal fortitude, direct connection as essential for duty

• S 32 partly consistent with C/L in Tame – both accept foreseeability as ‘central determinant’ of duty

• Ie shocking event, connection betw Pl/Def or Pl/victim go to foreseeability - not essential pre-conditions for duty

• But s 32 reverses Tame on normal fortitude • S 32 – ‘sudden shock’ – neither necessary nor sufficient condition for duty • Same with witnessing at the scene – also only one of circs bearing on foreseeability re

duty• ‘Mental or nervous shock’ in s 29 & 30 has diff meaning from ‘sudden shock’,

mental refers to consequence, sudden refers to event or cause – but shock central to both

• Neither sudden shock nor witnessing at scene essential to duty - therefore not always the case that s 30 will be engaged

• S 30 only arises where claim for ‘pure mental harm’ arising ‘wholly or partly from mental or nervous shock’ and in connection with ‘another person …being killed injured or put in peril by act or omission of Def’

• Re applic of Pt 3, start by determining whether Def owed duty of care re mental harm (SVW 283)

• Duty is Q of law – open to HCA to decide• Whether reas foreseeable that rescuer or person of normal fortitude attending train

accident of this kind caused by neglig might suffer recognisable psych injury? • Must be judged prior to accident not with hindsight• Issue re duty should be sent back to C/A for decision• Assuming duty not to cause mental harm was owed, is s 30(2) engaged? (SVW 284)• ie do Pls’ claims arise ‘wholly or partly from mental or nervous shock in connection

with another person…being killed, injured or put in peril’ by SRA’s neglig? • Phrase must be construed as a whole• Wrong to confine ‘shock’ to first impression and train crashing – claim re shock is re

series of shocking experiences associated with whole of rescue• Re ‘in connection with another person being killed …’(SVW 285) – s 30(1) refers to

event that may but not must have been complete before the shock was suffered• S 30(2) requires witnessing at the scene ie event must be happening as Pl witnesses it• But not correct to read s 30 or s 30(2)(a) as assuming all events ‘begin and end in an

instant’ – OK if occur over extended time• This is what happened here – even once train stopped, survivors/ victims still in peril• ‘Being …put in peril’ not to be interpreted restrictively – ‘the expression should be

given the meaning the words ordinarily convey’ as opposed to being read down because of old C/L cases or old legislation (LR (MP) Act 1944 (NSW))

• ‘In a mass casualty [like this] s 30(2)(a) is satisfied where there is witnessing at scene of one or more victims being ‘killed …’ etc – no need for more specificity

DUTY OF CARE: PURE ECONOMIC LOSSReading: SVW Ch 8 pp 290- 301 INTRODUCTION 

• ‘Pure’ (purely) economic loss - separate category from standard Donoghue v Stevenson physical damage - duty differs depending on nature of the harm

 • Exclusionary rule re pure economic loss - dates from Cattle v Stockton Waterworks

Co (1875) LR 10 QB 453 - mainly based on denial of duty – ie no duty to avoid causing economic loss

 • Pure economic loss ‘the most controversial area of torts – one which has been in the

eye of the storm over the development of the duty concept itself’ (Fleming)

• Distinguish pure economic loss from consequential - consequential loss straightforward

• Total exclusion of pure economic loss until 1964, then Hedley Byrne v Heller (HL, neg words) and Caltex Oil v Willemstadt re negligent acts (HCA, 1976)

• NB tort of deceit to remedy economic loss caused by fraudulent misrep dates from 1789 in Pasley v Freeman

• Policy reasons against recovery for pure econ loss arising from negligence: 

o Fear of imposing liability for ‘an indeterminate amount for an indeterminant time to an indeterminant class’: Ultramares Corp v Touche, Niven & Co (1931, per Cardozo CJ, New York)

o Reservations about encroaching on domain of contract law ie not allowing tort to bypass limits such as the doctrine of privity

Competition inherent aspect of a capitalist economy - free market society E.g. per Deane J in Sutherland Shire Council v Heyman ‘in many commercial and

financial transactions [there is] a correlation between the attainment of personal gain for one’s self and the sustainment of economic loss by another’

Distinguish negligent words from negligent acts - ‘The law must treat neglig words differently from negligent acts’ per Ld Reid in Hedley Byrne v Heller

Distinction blurred in subsequent cases

NEGLIGENT WORDS / MISSTATEMENT• Hedley Byrne v Heller (H/L, 1964) • MLC v Evatt (HCA, 1971 ) (reversed on appeal to P/C)• L Shaddock & Assoc v Parramatta CC (HCA, 1981)• San Sebastian v The Minister (HCA, 1986)• Esanda Finance Corp v Peat Marwick Hungerfords (HCA, 1997)

Esanda Finance Corp Ltd v Peat Marwick Hungerfords (Reg)(1997) 188 CLR 241; SVW p 291Facts

• Pl finance coy loaned funds to Excel companies – relied on a/cs audited by Defs – but a/cs obtained from other source – Excel placed in receivership - defaulted on loan

• Pls sued auditors – trial judge refused Def’s applic to strike out Pl’s pleading as not disclosing duty of care

• Reversed by Full Court• Case in HCA was appeal from interlocutory applic by Def to strike out Pls’ pleading

as not properly pleading duty• HCA agreed (majority of 6) – discussion of duty

Dawson J• Mere foreseeability of pure econ loss not give rise to duty to avoid• Would extend liability beyond acceptable bounds• Stifle commercial activity + limitless liability

• See similar Ultramares v Touche• Foreseeability + proximity req’d• Discussion of key cases - Hedley Byrne, MLC v Evatt, San Sebastian• Reliance by Def a ‘cornerstone’ of liability for negligent misstatement: San Sebastian• Must be reasonable reliance – can be shown by intention by Def to induce Pl to act

(estabs proximity – duty) but not essential

• Distinguish betw advice given on social occasions & ‘serious or business’ matters – see Hedley Byrne, MLC v Evatt

Re business advice: duty of care if:1. Def realises Pl trusts in Def’s special competence re advice2. Reasonable for def to accept & rely on advice3. Reasonably foreseeable that Pl will suffer loss if advice incorrect – San Sebastian, endorsing MLC v Evatt

• Esanda’s appeal dismissed – foreseeability of loss because of reliance not suffic for duty unless relationship of proximity

Brennan CJ• No duty unless Pl proves Def knew or ought reasonably to have known that

information to be given to Pl (as indiv or class) for purpose likely to lead Pl into a transaction and likely that Pl would rely on info and risk econ loss if not accurate

McHugh J • Without a statement to particular person re particular request for information or

assumption of responsibility to Pl, ‘it will be difficult to estab …duty unless there is intention to induce the recipient…to act or refrain from acting on it [but] lack of intention to induce Pl …not necessarily fatal …because other factors may be present…’ (p 275 report)

• Long discussion of policy reasons against imposing duty to 3rd parties on auditors:o Incr cost of serviceso Decrease competitiono Incr complexity for court system if 3rd party duty allowedo This type potential pls able to look out for own interestso Creditors & investors better placed to absorb loss than auditorso Auditor’s neglig only 2ndary cause of pls loss – mainly stems from failure of

coyo Difficulty of proving reliance years later; etc

HeldPolicy factors lead to conclusion that corrective justice not warrant imposition of duty to 3rd partiesNB HCA rejected proximity as determinant of duty in Hill v van Erp (1997)NB statutory actions for misrepresentation/ misleading and deceptive conduct

• TPA, Aust Consumer Law• Pl no need to estab duty or negligence• SVW 296-7

NEGLIGENT ACTS/ OMISSIONS• Caltex Oil v Dredge ‘Willemstadt’ (HCA, 1976) (dredge cut pipeline)• Hill v van Erp (HCA, 1997)(solicitor neglig re will)• Perre v Apand P/L (HCA, 1999) (potato case)• Woolcock Street Investments v CDG (HCA, 2004) (defective structure)

 Perre v Apand P/L (HCA,1999) per Kirby J: ‘The law of negligence in cases of pure economic loss is completely unsatisfactory. This Court’s duty is not to search for more rules which will last a moment but fail to afford more than fleeting and particular guidance…our duty is to afford an approach or methodology which is universal to the tort of negligence and appropriate to the particular sub category [of pure economic loss.]’  

Caltex Oil v Dredge ‘Willemstadt’

(1976) 136 CLR 529Facts 

• Dredge negligently ruptured underwater pipeline owned by AOR in Botany Bay - carried oil products from AOR’s refinery to Caltex terminal on opposite side

• Navigation chart supplied by Decca inaccurate• Both dredge and Decca knew of existence of pipeline• Pipeline damaged and some of contents lost• Caltex incurred expense of $95,000 in transporting products by other means while

pipeline under repair Issues

1. Whether econ loss sustained as result of damage to 3rd party’s property recoverable?2. Whether person whose property has been damaged can recover for econ loss which

caused by the negligent act but not a consequence of the physical damage?Gibbs J 

• Extensive discussion Hedley Byrne 

• Endorses distinction between words and deeds – ‘sound reasons of policy’ – agrees with Ld Denning in SCM (UK) Ltd v Whittal & Son Ltd [1971] 1 QB 337: ‘still right to say that as a general rule damages are not recoverable for econ loss which is not consequential’

 Exceptional cases:•  ‘Def has knowledge or means of knowledge, that Pl individually and not merely as a

member of an unascertained class, will be likely to suffer econ loss as consequence of [Def’s] neg, and owes Pl a duty to take care not to cause him such damage’

• ‘It would not be wise to attempt to formulate a principle that would cover all cases in which such a duty is owed’

• Such cases should be ‘ascertained step by step as the facts of particular cases …make it necessary to determine them’ – Gibbs J quoting from Ld Diplock in MLC v Evatt

• ‘Material but not sufficient that some property of the Pl was in physical proximity to the damaged property’

Stephen J• See good discussion of policy considerations and reasons for and against

distinguishing between econ and physical loss+ his views on incrementalism vs the search for principle

PURE ECON LOSS CAUSED BY D EFECTIVE STRUCTURES  Woolcock Street investments v CDG(2004) 216 CLR 515; SVW p 298Facts - Commercial building designed by CDG – no geotechnical inspection by engineers - Woolcock subsequent purchaser - structural damage to building thru settling – faulty foundations Court of Appeal – no cause of action on facts - distinguished Bryan v Maloney as applic only to residential (builder of residential premises liable to subsequent purchaser)  HCA - Gleeson CJ, Gummow, Hayne, Heydon JJ

• Discussion Bryan v Maloney – depended on proximity-as-principle approach to duty – no longer the law

• Damage here is pure econ loss not physical – follows Sutherland SCC v Heyman – pure econ loss special category – impact on commercial activity

• Damages for pure econ loss not recoverable if all that is shown is Def’s neglig is a cause of the loss + reas foreseeable loss

• Discussion of Caltex Oil, Perre v Apand – these cases show vulnerability of Pl important in pure econ loss – possibly MLC v Evatt also fits vulnerability analysis (Prof Stapleton) – not necessary to decide here

Held - Engineers not liable to subsequent purchaser – Bryan v M distinguished– policy considerations – strict criteria for recovery of pure econ loss – no vulnerabilityNB McHugh, Kirby, Callinan JJ used 5 point test in Perre v Apand (McHugh J ) to determine duty – SVW 204

DUTY: SPECIAL PARTIES Reading: Ch 9, pp 303-326. 1. DUTY: OVERVIEW 1. D v S – reas foreseeability of risk of injury to others (neighbours) – ought to have in contemplation 2. Reas foreseeability of Pl/ kind of injuryChapman v Hearse (1961) – foresee ‘consequence of same general character’ as occurs 

• Unforeseeable Pls –Palsgraf (1928), Chester v Waverley (1939) 3. Proximity

• Dorset Yacht (1970, HL)• as control device - 1980s/90s HCA – Deane J - Jaensch v Coffey (1984) – reas

foreseeability + proximity + absence of any rule against

4. Incrementalism• Sutherland Shire Council v Heyman (1985) per Brennan J – law should develop

‘novel categories of negligence incrementally & by analogy with estab categories’. See Crimmins.

5. Proximity rejected - Hill v Van Erp (HCA, 1997), Pyrenees v Day (1998) 

6. 3 stage test – Caparo Ind v Dickman (1990 HL) – adopted UK – no general support HCA but favoured by Kirby J– Pyrenees v Day (1998)

7. Caparo test rejected by HCA in Sullivan v Moody (2001) (unanimous – Kirby J not sitting)

8. But reas foreseeability alone not suffic – Sullivan v Moody

 9. Incremental approach based on ‘factors’ or ‘salient features’ for/against duty – method not rule - Perre v Apand, Sullivan v Moody – current  10. All judges diff views on duty in Perre but ‘salient features’:

• vulnerability of Pl• control by Def• Def’s knowledge of Pl & circs

• Physical propinquity betw partiesNB + 2 Policy issues – indeterminate liability + need to allow legit commercial interests 11. Vulnerability & control

• Crimmins v Aust Stevedoring• Ryan v Great Lakes

 12. ‘Salient fatures’ Sullivan – policy – neglig/ defamation, coherence

13. stat authorities – eg Romeo - Kirby J – resource issues balanced against risk – relevant to duty & breach – see also McHugh J, Brennan CJ – see CLA Pt 514. wrongful life – Harriton, Waller 15. Policy imp’t in certain types cases eg:

• Advocates immunity – D’Orta- Ekenaike v Victoria Legal Aid (2005)• Police investigating crime – Hill v Chief Constable West Yorkshire (1989 HL) –

Yorkshire Ripper serial murderer - Pl mother of last victim – no duty to public• Auditors – Esanda Finance – McHugh J – same issue & result in Caparo Ind v

Dickman – no duty to 3rd parties• Child protection agencies – Sullivan v Moody, Hillman v Black (SA, 1996), X

(minors) v Bedfordshire County Council (1995 HL) – all re sexually abused children• Joint illegality – Gala v Preston (1991 HCA) – whether duty owed by drunk driver in

stolen car to accomplice in crime – proximity case – joint illegality may (not must) negate duty on policy grounds – but see CLA Pt 7 (no recovery by criminals)

• Stat authorities – eg Romeo - Kirby J – resource issues balanced against risk – relevant to duty & breach – see also McHugh J, Brennan CJ – see CLA Pt 5

• Wrongful life – Harriton, Waller

 2. SPECIAL DEFS: PUBLIC OR STATUTORY AUTHORITIES 

• Common law  

• CLA Part 5 ss 41- 46 

• + CLA Div 5 Recreational activities + Div 4 Assumption of risk 

• Ipp Report Ch 10  Definition public authority - CLA Pt 5 s 41:

• Crown• Government departments• Public health organizations• Local councils• Any public or local authority constituted by or under an Act• Persons or bodies prescribed by regulations as relevant authorities• Any person or body exercising public or other functions of a prescribed class

Doctrine of sovereign immunity

Could not sue Crown (gov’t) in tort unless it consented + no direct duties owed to public

Abolished by statute Now judicial role to supervise public authorities in exercise of functions Review by admin tribunals available but no compensation Possible redress via tort?

Justiciability issues - separation of powers – distinction betw reviewing merits & reviewing process of decision eg policy vs operational errors

Courts tend to see discretionary function as exception to abolition of immunity (but see Sutherland)

Statutory bodies which cause harm in course of exercising their statutory powers (misfeasance) may be liable in negligence

eg Nader v Urban Transit Authority (personal injury) eg L Shaddock v Assoc P/L v Parramatta City Council (neglig misstatements causing

pure econ loss) Same law which applies to other Defs may apply to public authorities but not always  eg Nagle v Rottnest - quadriplegic - diving accident – Def liable H/C regarded stat authority as subject to same law as any private Def Nagle applied general test for breach of duty - Wyong Shire Council v Shirt – council

liable for waterskiing injury  Note that where a clash occurs betw private interest and public functions, eg Sullivan

v Moody (no duty owed by Dept to fathers suspected of abusing own children), the ‘coherence’ principle has been applied to protect public body from negligence

See Kirby J in Graham Barclay Oysters v Ryan – cannot be incompatibility betw public authority’s statutory powers/functions and common law duties Should stat authorities be treated differently? 

1. Public bodies2. Wide discretion given by Parliament about how to perform their functions3. Limited resources + obligation to perform 4. Powers confined to those conferred by statute5. 5. Separation of Powers doctrine – role of courts / Parl’t6. 6. Imposing liability for failure to act could = judicial review of a resource decision

by stat auth – private law of torts vs public domain of admin law (Kirby J, Crimmins)

Issues re stat authorities:  

1. Whether, and when, a stat authority is under common law duty to exercise its stat powers?

2. Whether, and when, stat authority is under ordinary common law duty of reasonable care when it does exercise its stat powers?

NB both involve questions re interaction between statute and common law. Note provisions of CLA. United Kingdom :  East Suffolk Catchment Board v Kent (1941) AC 74 Factsnatural flooding of Pl’s land – stat authority incompetent repairs – no benefit to Pl but no incr damage  Held H/L Pl lost - duty re exercise of powers (acts) but no duty re failure to exercise (omissions) – auth failed to benefit Pl

Anns v Merton London Borough Council[1978]AC 728 (H/L)

Discussed in Sutherland SC v Heyman (1985, H/C) Anns similar facts to Sutherland - H/L upheld Pls claim for cost of repairs to building

(pure econ loss) Anns 2 stage test for duty of care (proximity + any considerations negativing duty)

  Held: stat authority could be liable at common law for failing to exercise its stat

powers (omissions) If decision not to exercise primarily operational (ie rather than policy) or ultra vires Note: Anns 2 stage approach not followed H/C - Sutherland SC v Heyman – H/L

replaced with 3 stage test - Caparo Industries v Dickman [1990] 2 AC 605 (HL) Sutherland SC approved in Caparo - test: foreseeability + proximity + “fair, just and

reasonable” NB Caparo test applied by Kirby J (only) in Pyrenees v Day, Perre v Apand,

Crimmins v Stevedoring IFC

Australia: Sutherland SC v Heyman(1985) 157 CLR 424 Facts - Defects in building - Pls later purchasers- council failed to properly inspect construction 

H/C refused to follow H/L in Anns Unanimously held Def not liable in negligence but for different reasons Majority – Mason, Brennan, Deane JJ – held no duty of care Minority – Gibbs, Wilson JJ – held duty owed but insufficient evidence of breach On policy /operational (implementation) dichotomy:

o Distinguish betw ‘decisions which involve…financial, economic, social, or political factors or restraints’ (no duty

o And “mere products of administrative discretion” (duty) Majority agreed no common law duty to exercise stat powers exists in general (see

Crimmins) But may arise through conduct per Mason J Reliance - self imposed duty Note differing views in majority on proximity re duty of care

 Pyrenees Shire Council v Day; Eskimo Amber v Pyrenees SC(1998 HCA) Facts: Dangerous fireplace – failure to follow up council inspection – no warning – fire - damage  I ssue : whether failure to exercise stat powers (discretionary) = breach of duty? 

Ie omissions not acts majority found for both Pls – no knowledge of danger (known to council) + no

capacity to act Ie ignorance + vulnerability Note incremental (maj) v principle (McHughJ) approach Majority want to confine to circs of case

 Relevant factors Pyrenees: 

Operational not policy Def already begun to act

Def specific & actual knowledge of danger 

Def best placed to control danger Policy/operational distinction maintained Control + knowledge Cases confined to own circs

THE LEGISLATION: Civil Liability Act 2002 (NSW) Part 5 – Liability of public and other authorities 41 Definitions In this Part: "exercise" a function includes perform a duty. "function" includes a power, authority or duty. "public or other authority" means: (a) the Crown (within the meaning of the Crown Proceedings Act 1988), or(b) a Government department, or(c) a public health organisation within the meaning of the Health Services Act 1997, or(d) a local council, or(e) any public or local authority constituted by or under an Act, or(e1) any person having public official functions or acting in a public official capacity (whether or not employed as a public official), but only in relation to the exercise of the person's public official functions, or(f) a person or body prescribed (or of a class prescribed) by the regulations as an authority to which this Part applies (in respect of all or specified functions), or(g) any person or body in respect of the exercise of public or other functions of a class prescribed by the regulations for the purposes of this Part. 42 Principles concerning resources, responsibilities etc of public or other authorities  The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies: (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,(b) the general allocation of those resources by the authority is not open to challenge,(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

44 When public or other authority not liable for failure to exercise regulatory functions  (1) A public or other authority is not liable in proceedings for civil liability to which this Part applies to the extent that the liability is based on the failure of the authority to exercise or to consider exercising any function of the authority to prohibit or regulate an activity if the

authority could not have been required to exercise the function in proceedings instituted by the plaintiff. (2) Without limiting what constitutes a function to regulate an activity for the purposes of this section, a function to issue a licence, permit or other authority in respect of an activity, or to register or otherwise authorise a person in connection with an activity, constitutes a function to regulate the activity.

45 Special non-feasance protection for roads authorities  (1) A roads authority is not liable in proceedings for civil liability to which this Part applies for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless at the time of the alleged failure the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm. (2) This section does not operate: (a) to create a duty of care in respect of a risk merely because a roads authority has actual knowledge of the risk, or (b) to affect any standard of care that would otherwise be applicable in respect of a risk. (3) In this section: "carry out road work" means carry out any activity in connection with the construction, erection, installation, maintenance, inspection, repair, removal or replacement of a road work within the meaning of the Roads Act 1993."roads authority" has the same meaning as in the Roads Act 1993.

46 Exercise of function or decision to exercise does not create duty  In proceedings to which this Part applies, the fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way.

Effect of CLA on common law  

ss 42, 44, 45, 46 relate to duty and breach of/by public authorities S 42: resource allocation 

Exercise of functions limited by available resources Allocation of resources not open to challenge Functions determined in broad context of Def’s overall activities Negligence Review panel (Ipp committee) recommendations incorp in ss 42-45 Intended to reduce liability of public authorities in negligence by introducing

administrative law concept of ‘Wednesbury unreasonableness’ (from Assoc Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 AC 223

ie not neglig unless behaviour so unreasonable that no reasonable authority would have acted that way

s 45 – Special non-feasance protection for roads authorities Partly reverses Brodie v Singleton Shire Council (2001) 206 CLR 512 which

abolished C19 doctrine of immunity of highway authorities re non feasance & held they were to be treated same as other stat authority cases eg L Shaddock, Heyman

Immunity did not extend to breach of duty re exercise of powers S 45 reinstates immunity of road authorities (unless actual knowledge)

Crimmins v Stevedoring Industry Finance C’tee (1999) 200 CLR 1 (HC) - SVW 305 FactsPl wharfie 1960s – all work allocated by central stat authority - not employer but responsible for paying workers – indiv e/ers responsible for supplying safety equip - workers no control over where worked - Pl exposed to asbestos – mesothelioma. Pl won in neglig in Vic S/C (jury), reversed C/A. Appeal to H/C

Issues 

1. Whether authority had affirmative C/L duty to protect? (supply protective equipmt or warn) (yes)

2. Whether current authority liable for omissions of previous authority? (yes)

Held 5:2 for Pl on duty - affirmative C/L duty

  6: 0 for Pl on transmission issue

  Maj (duty): Gleeson CJ, Gaudron, McHugh, Kirby, Callinan JJ

  Dissent: Gummow, Hayne JJ

  Gleeson CJ agrees with McHugh J

  Gaudron & Callinan JJ adopt approach to duty of working from common law to

statute 

Kirby & Gummow JJ diff approach (construe statute first) 

Gummow & Hayne JJ – no duty on facts 

7 judgmts, 6 diff views – ratio??

McHugh J (maj) 

‘Starting points are Sutherland SC and Pyrenees’ (re breach of affirmative duties) 

Incremental approach – endorsed McHugh/Hayne JJ, but rejected Gummow J 

‘The policy of developing novel cases incrementally by reference to analogous cases acknowledges that there is no general test for determining whether a duty of care exists’ (McHugh J); SVW 331

  Note difference betw powers & duties – discretion whether to exercise powers

NB CLA s 41 defines ‘function’ as ‘power, authority or duty’ 

‘C/L courts have long been cautious in imposing affirmative C/L duties of care on stat authorities…performing their functions within limited budgetary resources often requires the making of difficult policy choices and discretionary judgments’(p 331)

‘C/L courts have long been cautious in imposing affirmative C/L duties of care on stat authorities…performing their functions within limited budgetary resources often requires the making of difficult policy choices and discretionary judgments’(p 331)

Here stat authority had positive duty to take affirmative action

See McHugh J - 6 Qs (SVW p 308-9) for determining duty in novel cases re stat authorities – v impt:

 1. Was it reas foreseeable that Def’s act/omission, incl failure to exercise stat powers,

would result in injury to Pl? (YES = duty)2. Did def have power to protect specific class incl Pl (ie not public at large) from risk

of harm by reason of Def’s stat or assumed obligations or control? ( YES = duty)3. Were Pl’s interests vulnerable to harm (ie Pl unable to protect self)? (YES = duty)4. Did Def know/ought to have known of risk of injury to specific class incl Pl if did not

exercise it powers? (YES = duty)5. Would duty impose liability re Def’s exercise of ‘core policy-making’ or ‘quasi-

legislative’ functions? (NO = duty)6. Other supervening reasons in policy to deny duty? (eg duty inconsistent with statute,

pure econ loss case that has own principles etc) (NO = duty) Duty should be imposed when yes to Qs 1-4, no to Qs 5 & 6:

1. Foreseeability of injury to Pl (Y)2. Did Def have power to protect Pl? (Y)3. Was Pl vulnerable? (Y)4. Did Def know of risk of harm to Pl? (Y)5. Related to ‘core policy making’ or ‘quasi-legislative’ function?(N)6. Other policy reasons to deny duty? (N)

Vulnerability of Pl – essential condition for duty except in limited circs Knowledge of Def re harm to Pl also essential – analogy with pure econ loss in Perre

v Apand – ‘vulnerability and knowledge go hand in hand’

Graham Barclay Oysters v Ryan SVW 315

See lecture Week 5

LECTURE 7

READING: Ch 9 pp 326 -376  RE-CAP Duty: mental harm – Wicks v SRA and Pt 3 CLADuty: economic loss

• Negligent wordso Esanda Finance v Peat Marwick

• Negligent acts/omissionso Caltex Oil v Willemstadto Perre v Apando Woolcock Street Investments

Duty: Overview• See summary

 Duty: Public authorities

Definition public authority - CLA Pt 5 s 41 Issues (common law) re stat authorities:

Whether, and when, a stat authority is under a common law duty to exercise its stat powers?

Whether, and when, stat authority is under ordinary common law duty of reasonable care when it does exercise its stat powers? – see Sutherland SC v Heyman (1985) 157 CLR 424 (Mason J)

  Civil Liability Act 2002 (NSW): Part 5 – Liability of public and other authorities –

esp Ss 41, 42, 44, 45, 46 ………………………………………………………………………………..

Crimmins v Stevedoring Industry Finance C’tee Graham Barclay Oysters v Ryan Amaca v NSW RTA v Refrigerated Roadways

Crimmins v Stevedoring Industry Finance C’tee (1999) 200 CLR 1 (HC) - SVW 305 Facts

• Pl wharfie 1960s – all work allocated by central stat authority - not employer but responsible for paying workers – indiv e/ers responsible for supplying safety equip - workers no control over where worked - Pl exposed to asbestos – mesothelioma

• Pl won in neglig in Vic S/C (jury), reversed C/A. Appeal to H/CIssues 1. Whether authority had affirmative C/L duty to protect? (supply protective equipment or warn) (yes)2. Whether current authority liable for omissions of previous authority? (yes)

Held• 5:2 for Pl on duty - affirmative C/L duty

 • 6: 0 for Pl on transmission issue

 • Maj (duty): Gleeson CJ, Gaudron, McHugh, Kirby, Callinan JJ

 • Dissent : Gummow, Hayne JJ

 Reasoning - 7 judgments, 6 diff views – ratio??

• Gleeson CJ agrees with McHugh J 

• Gaudron & Callinan JJ adopt approach to duty of working from common law to statute

 • Kirby & Gummow JJ diff approach (construe statute first)

 • Gummow & Hayne JJ – no duty on facts

McHugh J (maj) 

‘Starting points are Sutherland SC and Pyrenees’ (re breach of affirmative duties) Incremental approach – endorsed mchugh/Hayne JJ, but rejected Gummow J ‘The policy of developing novel cases incrementally by reference to analogous cases

acknowledges that there is no general test for determining whether a duty of care exists’ (mchugh J); SVW 331

Note difference betw powers & duties – discretion whether to exercise powers NB CLA s 41 defines ‘function’ as ‘power, authority or duty’ ‘C/L courts have long been cautious in imposing affirmative C/L duties of care on

stat authorities…performing their functions within limited budgetary resources often requires the making of difficult policy choices and discretionary judgments’(p 331)

‘C/L courts have long been cautious in imposing affirmative C/L duties of care on stat authorities…performing their functions within limited budgetary resources often requires the making of difficult policy choices and discretionary judgments’(p 331)

Here stat authority had positive duty to take affirmative action

See McHugh J - 6 Qs (SVW p 308-9) for determining duty in novel cases re stat authorities – v impt:

 1. Was it reas foreseeable that Def’s act/omission, incl failure to exercise stat

powers, would result in injury to Pl? (YES = duty)2. Did def have power to protect specific class incl Pl (ie not public at large)

from risk of harm by reason of Def’s stat or assumed obligations or control? ( YES = duty)

3. Were Pl’s interests vulnerable to harm (ie Pl unable to protect self)? (YES = duty)

4. Did Def know/ought to have known of risk of injury to specific class incl Pl if did not exercise it powers? (YES = duty)

5. Would duty impose liability re Def’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions? (NO = duty)

6. Other supervening reasons in policy to deny duty? (eg duty inconsistent with statute, pure econ loss case that has own principles etc) (NO = duty)

  Duty should be imposed when yes to Qs 1-4, no to Qs 5 & 6: 1. Foreseeability of injury to Pl (Yes)2. Did Def have power to protect Pl? (Yes)3. Was Pl vulnerable? (Yes)4. Did Def know of risk of harm to Pl? (Yes)5. Related to ‘core policy making’ or ‘quasi-legislative’ function?(No)6. Other policy reasons to deny duty? (No)

Vulnerability of Pl – essential condition for duty except in limited circs 

Knowledge of Def re harm to Pl also essential – analogy with pure econ loss in Perre v Apand – ‘vulnerability and knowledge go hand in hand’

Graham Barclay Oysters v Ryan SVW 315

• See lecture Wk 5 and SVW pp 243-253 (product liability aspects of case)

• Facts - Class action - Pls got hepatitis A from eating contaminated oysters grown in polluted lake - sued producer/distributor + local council + NSW gov’t which regulated waterways

Gleeson CJ• Re claims against Barclay companies – duty conceded, main issue breach• Re council and State – omissions not acts – non feasance

• Useful discussion re reasons for gov’t defs being treated differently from private SVW 315:

• When gov’t sued, compensation comes from public funds – not same as for private defs - gov’t primary responsibility is to public not indivs

• Not approp for judicial arm of gov’t to pass judgment on reasonableness of conduct (action or inaction) of legislative or executive arms because conduct may be political

• Justiciability – separation of powers doctrine• Reasonableness is at heart of negligence • Decisions re resources or policy are political, same re regulation of

private/commercial activity• Claims here v State ands Council are re non-feasance• Ie that could and should have done more re Hep A – political – may involve

resources, policy priorities• Accepts that local and State gov’t owe duty to public re public health• But Pl must prove duty owed to him as consumer (of these oysters)• ‘If such a duty exists, then …a similar duty is owed to all consumers of all

potentially contaminated food…perhaps to all persons whose health and safety might be affected…[by] gov’t action or inaction.’ SVW 315-6… ‘far –reaching implications’ (SVW 318)

• Duty to do what? (content of duty) – if hard to answer, maybe no duty• Reas foreseeability of kind of harm suffered by Pl NOT sufficient for duty

• Re gov’t defs, ‘may be a very large step’ from foreseeability to duty (SVW 316)• And ‘may also be a large step from existence of power… [to act] to recognition of

duty to exercise the power’• Even where statute confers specific power , does not follow that public authority

owes duty to indiv or class re exercise of power• Re case v State – crown immunity abolished C19 – Crown Proceedings Act 1988

(NSW) s 5 - tries to put gov’t in same position as private defs ‘as nearly as possible’ – aspires to equality before the law, but not always possible

• Diffs arise from nature and responsibilities of gov’ts – led to attempt to distinguish based on policy/operational dichotomy – see Sutherland SC v Heyman (1985) 157 CLR 424 (Mason J) – still relevant - quote SVW 316

• Sutherland (Mason J): ‘a public authority is under no duty of care [re] decisions which involve or are dictated by financial, economic, social, or political factors or constraints’

• ‘Budgetary allocations… cannot be made subject of duty’• ‘May be otherwise …[re] action or inaction that is merely the product of

administrative direction, expert or professional opinion, technical standards or general standards of reasonableness’

• Decision that duty owed to citizen in neglig necessarily implies that reasonableness of action/inaction is justiciable (legitimate subject for curial decision)

• No duty re gov’t if no criterion for determining reasonableness• Re state - upholds dissent by Lindgren J (Full Federal Court)• Control well estab basis for duty – but was there control by state here?• Discusses meaning of and factors relevant to control - ((a) – (g) SVW 317-8) • Nature and extent of state gov’t involvement in oyster quality control ‘a

matter of policy’…’substantial budgetary implications’• Political judgment – knowledge re risks to consumers not suffic to conclude

state owed duty to consumers to incr level of regulation or to further exercise powers to control

• Discussion re duty via Fisheries Management Act 1994 (NSW)• No duty owned by State to Pl

• Re Council • Starting point for council is stat provisions conferring relevant powers and

functions – see Gummow and Hayne JJ

• Powers conferred on council for benefit of public generally not specific class of indivs

• No duty by council• Re Barclays – duty accepted – issue is breach • Held – allow appeal by State• Agrees with last par of orders proposed by Gummow and Hayne JJ

Gummow and Hayne JJ – SVW 320 – 326• Students to make own notes

Amaca P/L v NSW[2004] NSWCA 124; SVW p 326 **NB useful drawing together of principles from other cases Facts

Pl construction worker on power station for Pacific Power State had stat power to inspect worksites Pl exposed to asbestos – mesothelioma Claims against e/er and Pacific P settled Sued Amaca /James Hardie (asbestos manuf) & won J Hardie cross-claimed against state JH lost at trial & C/A Appeal to HCA - allowed – sent back to C/A for new hearing

 Ipp JA (Mason P & mccoll J concurring) 

Relevant authorities Crimmins, Graham Barclay, Pyrenees & others No ‘clear & universal test’ Each case depends on its own circs – weigh totality Different factors signif depending on facts  Mason J Sutherland SC v Heyman (1985 HC, at 459-61): ‘Generally speaking, a public authority which is under no stat obligation to exercise a

power comes under no common law duty of care to do so…But an authority may by its conduct place itself in such a position that it attracts a duty of care which calls for exercise of the power’ (SVGW p 418)

Occupation of premises or ownership or control of public place/structure may attract duty – ‘statute facilitates existence of C/L duty’ ie statute foundation on which C/L can build duty (Scott v Green per Lord Denning)

Nothing in Pyrenees, Crimmins, Graham Barclay ‘materially inconsistent’ with Mason J in Sutherland

Signif propositions from Sutherland (SVW p 327):o Where no stat obligation to exercise power, generally no C/L duty to do so

B) & c) authority can attract duty by conduct:o By creating a dangero Where partic circs of occupation of premises or control of structure attract

duty – statute facilitates dutyo Where authority acts so that others rely on it to take care for their safety

  Categories not closed - extended in later cases to include where authority has control

& knows or should know of risk of harm

Discussion Pyrenees, Sutherland, Graham Barclay - Pyrenees emphasizes sole & actual knowledge by Def council of risk of harm to identified Pls + power to intervene + partial prior inadequate intervention

RTA V Refrigerated Roadways(2009) 77 NSWLR 360; SVW p 338NB case about interaction betw common law and Roads Act – similar issues to CLAFacts – Truck driver Evans killed in accident caused by concrete block deliberately dropped on truck whilst passing under overhead bridge – criminal - perpetrators convicted – RTA admitted owed duty of care to road usersIssue – Scope of duty - whether includes taking reas care to prevent road users suffering physical injury as result of intentional criminal acts of 3rd parties? (ie building structure to prevent objects being dropped on traffic) Campbell JA

• RTA’s duty – not argued on s 42 CLA so not considered• Brodie v Singleton (2001 HCA) discussed – accepted that highway authority could be

liable for failure to exercise powers• Discusses Nagle, Romeo, Pyrenees, Crimmins, Graham Barclay, Amaca• Amaca - all 3 judges accepted that duty could exist re public authority exercising its

power where partic circs of ownership/control of structure attract a duty• RTA accepts owes Brodie type duty• Modbury Triangle influential at trial and here – general rule in Modbury that not

normally a duty re omissions – also importance of knowledge and control by occupier (refer Dorset Yacht)

• Discusses Graham v Hall [2006] NSWCA 208 - summary from Modbury of ‘v restricted circs’ when duty to prevent harm from criminal conduct arises – endorsed here

• (SVW p 341) – special vulnerability + knowledge, and/or assumption of responsibility

• But ‘there must be something special in the circs, or nature of relationship betw Pl and def’ (Callinan J)

• Circs here diff from Modbury – there could only happen by intentional criminal conduct, here could also happen by accident

• Road users vulnerable• Stovin v Wise rejected• Discussion ss 43A, 42 CLA• Held - RTA liable

LANDLORDS AND DEFECTIVE STRUCTURESJones v Bartlett(2000) 205 CLR 166; SVW p 347Facts

• Pl son of tenant injured when walked thru closed glass door – glass compliant when installed but not at date of injury – no knowledge by landlord and defect not visible

• Pl won at trial – Def should have had house inspected by experts before renting – Def won in WA S/C – duty but no breach

Gummow & Hayne JJ• Cavalier v Pope (HL 1906 - landlord immunity) rejected by HCA in Northern

Sandblasting (1997) 188 CLR 313 – correct• No longer law in Aust that landlords never owe duty re condition of residential

premises to tenants – but not necessarily extend to all entrants• Landlords correctly conceded duty - issue is content of duty + breach• Takes law further than in Northern Sandblasting

• Start by considering relationship betw landlord & tenant – ‘ that which arises under ordinary principles of negligence … duty to take reas care to avoid foreseeable risk of injury’ : Northern Sandblasting

• Discuss D v S – ‘close and direct’ relationship – duty coterminous with requirement that premises be fit for purpose

• Premises not fit for purpose where ordinary would use foreseeably cause injury• Landlord had duty not to let premises with defects that knows or ought to know make

premises unsafe for purpose• Duty discharged if landlord takes reas steps to ascertain presence of defects and

remedy them once known ie landlord duty to act in manner reasonably to remove risks – depends on circs – not strict liability

• But is lesser duty owed to other entrants? – general principle consistent with Safeways v Zaluzna is that occupiers liable for injury to entrants on resid premises

• Tenant in occupation has ‘possession and control’ with power to invite/exclude – tenant in best position to know of defects and warn entrants – so tenant broader duty than landlord

• But landlord’s duty to tenants re ‘dangerous defects’ that knew or ought to have known of extends to entrants

• Held • Pl lost 5: 1 – (McHugh J dissent)• No breach – glass door not a dangerous defect – tenants (Pl’s parents) in as good

position as landlord re defect

OCCUPIERS’ LIABILITYAust Safeways Stores v Zaluzna(1987) 162 CLR 479; SVW p 352 Facts- Pl slipped on wet supermarket floor – raining – injured – lost at trial – applied occupiers liab principles – no duty - Full court Vic found duty - ordered new trial – Def appealed to HC  Mason, Wilson, Deane, Dawson JJ 

Formerly occupiers liability based on categories of entrant to property – licensees, invitees, trespassers – diff special duties owed

Now neglig encompasses all – ‘special duties do not travel beyond the general law of neglig’

Duty present – new trial re breach Appeal dismissed

NB many occupiers are also statutory authorities (eg local councils)

PROFESSIONALS SVW pp 355-57 NB Refer Rogers v Whitaker (Ch 10 standard of care) CLA Division 6 – Professional negligence  5O Standard of care for professionals

 (1) A person practising a profession ("a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. (2) However, peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.

(3) The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.

(4) Peer professional opinion does not have to be universally accepted to be considered widely accepted.5P Division does not apply to duty to warn of risk  This Division does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of the risk of death of or injury to a person associated with the provision by a professional of a professional service. 

NB – re doctors – HCA held in Rogers v Whitaker that standard of care was matter for court ie Q of law – not determined by industry practice – rejected UK Bolam test

IMMUNE DEFENDANTS - BARRISTERS D’Orta-Ekenaike v Victoria Legal Aid(2005) 223 CLR 1; SVW p 357 Facts 

Acc charged with rape – advised to plead guilty to get suspended sentence by legal aid barrister – Acc claimed innocent

Pleaded guilty at committal - later changed to not guilty at trial First plea used as admission – Acc convicted Verdict set aside & acquitted on re-trial – evidence re first guilty plea not admitted Could not sue unless immunity overruled re work ‘intimately connected’ with court

work – HCA

Held - 6:1 retain immunity – Kirby J dissent

Gleeson CJ, Gummow, Hayne, Heydon JJ

Gianarelli v Wraith (1988 HC) – legal advocates immune from suit in neglig (acts & omissions) re court work & closely connected other work

2 main policy argumts Gianarelli – duty to court takes priority over duty to client + abolishing immunity means civil court reviews decision of another court incl criminal, without appeal – admin of justice – finality

Same UK- Rondel v Worsley (1969 HL) and Saif Ali v Sydney Mitchell & Co (1980 HL) - immunity

Abolished UK 2000 – Arthur JS Hall & Co v Simons; Barratt v Ansell; Harris v Schofield Roberts & Hill – heard together – unanimous re civil, by majority in criminal

Abolished Canada, NZ

PARENTS AND CHILDREN

SVW p 359-363• No general duty owed to children to feed, clothe etc: Rogers v Rawlings [1969] Qd R

262• Driver parents always owe duty to car passengers incl own children – 3rd party

insurance. Blood relationship not a barrier to otherwise available action: Hahn v Conley (Barwick CJ)

• See duties to unborn – Lynch v Lynch – pregnant mother driver owes duty to unborn child injured in car accident where mother at fault - Lynch confined to motor vehicles – no general duty re lifestyle injuries

• Parents can be liable for failure to supervise young children who injure others – but see McHale v Watson – 12 y/o child injured other child - initial action against parents dropped

• Parents can be vicariously liable for their children in some circs

Hahn v Conley [1971] 126 CLR 276 (HCA) – SVW p 360-63Facts – grandparents looking after child - 3 year old called out - grandfather answered – child crossed road to him and hit by car – car driver liable - at trial def insurer claimed indemnity from grandfather – grandfather assessed as 25% at fault – major issue breach – appeal by grandfatherBarwick CJ

• Def’s claim to indemnity can only succeed if Pl had cause of action against her grandfather

• Considers view of CJ adopted in S/C that parents owe duty to child to take reas care to prevent danger – Grandparents in loco parentis - therefore grandparents owe duty

• Rejected Barwick CJ• The moral obligation of the parent, created by the blood relationship, does

not, of itself, automatically translate into a legal obligation’ • In some circs duty imposed on carer who has accepted responsibility to take

reas care to protect against foreseeable danger, but no general duty on parents ie parenthood not source of the duty

• No legal duty on grandfather to assist child or take positive steps to protect – no breach - finding for Pl

Windeyer J• Duty to care fort child is obligation to take reas care in existing circs not to

ensure safety in all circs• Child is ‘neighbour’ (D v S) and duty based on proximity – but no breach

Held – Finding for Pl 3:2 (Walsh and Menzies JJ dissenting on breach)

Duties to 3 rd parties: Unborn Plaintiffs • NB relate to other cases discussed in previous lecture on duty re 3rd parties – Dorset

Yacht, Modbury Triangle, Jaensch v CoffeyWrongful Life

• Action by child born with disability (genetic/disease-related)• Medical negligence – doctor’s failure to advise re abortion• Parents would have aborted if advised• Often concerns child with rubella syndrome, or genetic defects

  Wrongful birth

• Action by parent(s) of healthy or disabled unintended child• Often following negligent sterilisation or failure to detect pregnancy• Medical negligence

WRONGFUL BIRTH Cattanach v Melchior(2003) 215 CLR 1 (SVW p 364)Facts - Wrongful birth case – surgical sterilization of female Pl - failure to check Pl’s oral history that one fallopian tube removed at 15 – not accurate – should have applied clip – neglig advice and failure to warn - Pl became pregnant – healthy child  HistoryQld C/A 

Held : finding for Pls (both parents) - neglig failure to inform – Rogers v Whitaker Pl awarded general & special damages + allowed upkeep costs (2:1 majority) all accepted this was pure econ loss claim Def appealed on damages only Pl won H/C 4:3 (Gleeson CJ, Hayne, Heydon JJ dissenting)

Issue Sole issue in HC whether upkeep damages awardable (costs of raising child to 18 yrs) Gleeson CJ (dissenting) 

Parent/child relationship ‘integral aspect of the damage’ – whether actionable damage?

Financial cost foreseeable But no general duty to avoid causing foreseeable financial loss – Perre v Apand Classifies this as pure econ loss, in line with HL in McFarlane v Tayside – imp’t

Indeterminacy argument Child as blessing argument – care for aged parents Legal coherence – denial of duty in Sullivan v Moody – internat instruments stress

family and care of children – not coherent to regard parent/child relationship as actionable damage

Human relationship, not primarily financial – ‘to seek to assign an economic value to the relationship … is neither reasonable nor possible’

Accepted approach by HC to duty in novel categories is ‘incrementally and by analogy with established categories…[this] goes beyond that’ (p 232)

Appeal allowed (finding for Def)

McHugh & Gummow JJ (maj) 

Public policy arguments (as above) ‘does not explain why the law should shield or immunize’ neglig Def from damages normally recoverable ‘under general and unchallenged principles’

Damage not pure econ loss nor parent/child relationship ‘Relevant damage suffered … is expenditure that [Pls} have incurred or will incur in

future’ not child itself – based on damage being personal injury - ‘What was wrongful… was not the birth of a child … but the negligence of Dr Cattanach’

‘Beguiling but misleading simplicity to invoke [broad family values]…and then glide to the conclusion that they operate to shield [neglig Def]’

No justifiable diff betw healthy & disabled child Cannot set off like with non-like re damages Find for Pl

Kirby J (maj)

Discusses own judgment in CES v Superclinics (NSW CA) rejected ‘sanctity of life’ argument & child as blessing argumt

Discusses UK and McFarlane Considers 5 options for damages – partly set out pp 234-5 – Option 1: no damages

thru to Option 5. Upkeep costs Option 5 is correct – normal application of principles of neglig & damages ‘To deny [upkeep costs] is to provide a zone of legal immunity to [doctors] …that is

unprincipled and inconsistent with established legal doctrine’ Upkeep claim avail as ord neglig not pure econ loss (more stringent) Blessing argument ‘a fiction’ Birth of child not harm – econ harm Distinguishing betw healthy & unhealthy children ‘arbitrary & unacceptable’ Upkeep costs ‘hardly exceptional in terms of common law principle…to deny it

would be. Any such denial would be arbitrary…Denial is the business, if of anyone, of Parl’t not the courts

Finds for PI  NB CLA (NSW) amended – new s 71 – overturned Cattenach on upkeep damages –

same Qld & SA - not other states, which are still common law

Wrongful Life  Harriton v Stephens[2006] HCA 15; SVW p 369 History2002Edwards v Blomeley [2002] NSWSC 460Harriton v Stephens (461)Waller v James (462)

• 3 test cases heard together before Studdert J in NSW S/C to determine whether wrongful life cause of action recognized in NSW - rejected in all

 2004Harriton, Waller on appeal to NSW C/APl lost both 2:1 (Mason P dissent)2006Harriton appeal HCA – (2006) 226 CLR 52

Facts Edwards - failed vasectomy – neg op & neg failure to advise – causation conceded – rare chromosomal disorder – child intellectual & motor & behavioural disability

Harriton - neg advice to pregnant mother that had not contracted rubella – child blind, deaf, intellectual disability – rubella syndrome Waller - in vitro fertilisation – father AT3 deficient – passed to child - brain damage & cerebral palsy - neg and/or breach of contract 

wrongful birth claims also in Edwards, Waller - parents in Harriton statute barred - child 21 y/o

Issues HCAConfined to duty and damage (and damages), by agreement betw parties – whether cause of action recognized at common law Held- 6:1 finding against Pl

Kirby J (dissent)SVW p 369 - discuss in tutsCrennan J (main judgment ) – SVW p 370(Gleeson CJ, Gummow and Heydon JJ fully agreed; Hayne & Callinan JJ mainly agreed) 

Duty Damage Value of life Compensatory principle Corrective justice

Comparison existence vs non existence impossible

Compensatory principle re damages cannot be applied

Policy factors also against recognition ‘Life with disabilities, like life, is not actionable

Duty of care• Doctor has clear duty to advise mother of problems arising during pregnancy• Doctor has clear duty to the foetus which may be mediated through the mother not to

injure foetus by act or omissionBut these not determinative of whether doctor has duty to foetus to advise mother so she can terminate pregnancy in interest of foetus in not being born

ie can/should C/L recognize a right of a foetus to be aborted, or an interest of a foetus in its own termination?

Cannot infer from decision by mother to terminate that this in best interests of child Coherence issue - ‘to superimpose a further duty of care on a doctor to a foetus (when

born) to advise the mother so that she can terminate pregnancy in interest of foetus in not being born, which may or may not be compatible with the same doctor’s duty of care to the mother in respect of her interests, has the capacity to introduce conflict, even incoherence, into …legal principle’

If such a duty were recognized, parents could also be sued by own child for failing to abort – undesirable

Duty cannot be stated where damage cannot be proved – damage the ‘gist’ of negligence - ie comparison betw life with disabilities and no life is impossible – court cannot determine whether Pl is worse off ie has sustained any damage

‘Not every claim for damage is actionable… The analytical tools…such as duty of care, causation, breach of duty, foreseeability and remoteness, all depend…on damage capable of being apprehended and evaluated’