LAWS1061 – TORTS

LAWS1061 – TORTS

Table of Contents
Class 1 – Introduction – Role and Function of Tort Law ...................................................... 2
Class 2 – Nuisance ............................................................................................................. 4
Class 3 – Negligence – the General Duty of Care ................................................................ 9
Class 4 – Duty – Mental Injury ......................................................................................... 13
Class 5 – Duty of care – Pure Economic Loss ..................................................................... 17
Class 6 – Occupiers liability ............................................................................................. 22
Class 7 – Critique of Tort law ........................................................................................... 25
Class 8 – Duty – Public Authorities ................................................................................... 29
Class 9 – Breach of Duty – Standard of Care ..................................................................... 33
Class 10 – Breach of Duty – Reasonable Foreseeability and Calculus of Negligence .......... 38
Class 11 – Causation ........................................................................................................ 44
Class 12 – Causation – Novus Actus Interveniens ............................................................. 50
Class 13 – Causation – Remoteness and Loss of Chance ................................................... 53
Class 14 – Defences ......................................................................................................... 58
Class 15 – Breach of Statutory Duty ................................................................................. 62
Class 16 – Concurrent Liability and Vicarious Liability ...................................................... 65
Class 17 – Concurrent Liability and Non-Delegable Duty .................................................. 68
Class 18 – Damages ......................................................................................................... 70
Class 19 – Torts (Law) Revision ........................................................................................ 75
Class 20 – Theory for Essay .............................................................................................. 77
EXAM! – TEMPLATE FOR ALL PROBLEM QUESTIONS ........................................................ 81

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Class 1 – Introduction – Role and Function of Tort Law

(Chapter 1 – p3-21)
Introduction to Tort Law

[1.05] Overview
- The law of torts concerns the obligations of persons living in a crowded society to respect
the safety, property, and personality of their neighbours, both as an a priori matter [that is,
a matter of cause and effect] and as a duty to compensate for wrongfully caused harm, ex
post [after the fact]
- Tort law 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
- Tort is about wrongs, with tort law aimed to fix wrongs
- Tort is about injury

[1.15] Tort Law: Common law and Statute

- Although most commonly used torts were originally judge made, statute has made
significant inroads into the common law status of torts
- Most significant impact of Civil Liability Legislation – the law of tort in Australia (particularly
relating to personal injury) is not at least partially structured by legislation
- Aim of the tort reform process
o Reduce litigation, reduce compensation payable by insurers, to make insurance
affordable
- CLA is based on and modifies the common law. Therefore, start with the common law and
then see how it is different
o CLA legislation is focused generally on negligence as a mode of action rather than
necessarily as a tort
o Some parts apply to some torts and not to others
o Definitions of trespass, nuisance, negligence and breach of statutory duty are
important
- Depends what aspect we are talking about to whether there is an interaction between CLA
and common law, it has changed the common law or whether it doesn’t apply at all

[1.20] The Role of Tort Law

*Protection of a range of interests e.g. personal or bodily integrity, reputation, property, privacy

Compensatory Function
- Function of tort law is seen by many to be compensation for people who are injured by a
wrong – either to person or property
- Damages must also be paid in a lump sum – Lim Poh Choo v Camden and Islington health
Area Authority – “there is really only one certainty: the future will prove the award to be
either too high or too low”
- Limitation of compensation
o Lump sums problematic due to poor management
o Large sums can run out because of the difficulty in predicting the future
o In the absence of fault, no compensation will be available – e.g. person injured at
home will not receive whereas if person injured the exact same way at work they
will be compensated
- For negligence, causation is needed in order for the wrongdoer to pay for the harm

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- Wrongdoer is liable if they intend to cause harm

Theoretical Approaches to Tort Law

[1.40] Deterrence Function

- Deterrence theory argues that if the wrongdoer is punished or made to pay for an accident
he or she will try to avoid such accidents in the future
- However, evidence of this is not particularly strong – e.g. it seems more likely, in terms of
legal remedies that the fear of criminal prosecution will deter a driver from speeding/drink
driving rather than tort law
- Insurance à As everyone pays premiums and spreads the loss and thus the risk à argued
that insurance prevents deterrence because the person at fault does not pay for their
wrong, but merely the premium à prevents the deterrent function of tort law from
operating by preventing the damages flowing from the wrongdoer

[1.50] Corrective Justice

- Collective Justice – the collective name for a number or theories suggesting moral rights as
the bases of torts like negligence and trespass
- E.g. in a medical negligence case, involving a problem in surgery, the surgeon is part of a
huge system and why should that be ignored in discussing liability in negligence

[1.55] Distributive Justice

- Concept of tort law as a way of distributing goods, risks and losses
- Focuses on the rule that compensation is intended to put the plaintiff back in the position
they would have been in before the accident à rich get more damages than poor to return
to position
- Some distributive justice theorist believe damages should be assed rather on the basis of
need than of reinstating prevision positions

[1.60] Feminist Theory of Tort Law

- The question of “is it fair” and “whose point of view” – as if the one does not share the same
point of view with the law then it is likely to not be fair

[1.65] Tort law and Human Rights

- Australia does not have a Bill of Rights or a Human Rights Act (other than VIC and ACT
separately) à thus any citizen outside these jurisdictions can only be protected by common
law

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Class 2 – Nuisance

(Chapter 16 –p763-787;793-798)
Introduction

- The two nuisance torts are Public nuisance & Private nuisance
- Public nuisance: interference with those interests that are shared by the public, that is,
public rights
o “an unlawful act or omission...which...endangers the lives, safety, health, property
or comfort of the public or by which the public are obstructed in the exercise or
enjoyment of any right common to all.” (Kent v Johnson (1973) 21 FLR 177 at 203-4.)
- Private nuisance: nuisance to the private rights of an individual, specifically those concerning
her/his use and enjoyment of land
- Both public and private nuisance may be affected by the CLA
- Where a nuisance is negligently created, or if it involves the intentional infliction of personal
injury according to the relevant legislation, the CLA may apply to the action.
- Otherwise, the common law will continue to apply

Public Nuisance

[16.10] Introduction
- To establish prima facie case of public nuisance, a private individual will have to prove
1. Title to sue (standing)
2. That the interference is with a public right
3. The defendant’s interference is substantial and unreasonable

[16.15] Title to sue

- A private individual is able to initiate proceedings for a public nuisance if he or she can prove
that they have suffered “special” or “particular” damage; damage over and above which is
suffered by the rest of the public
- Most cases brought by Attorney-General as he or she represents the public
- Private individual can bring a claim when a public right has also be violated
- Walsh v Ervin [1952] VLR 361
o Facts: plaintiff suing for public nuisance as prevented from accessing property by
motor vehicle for 3 years by defendant and suffered loss of time and added
inconvenience by defendant’s actions
o Issue: has the plaintiff suffered “special” or “particular” damages
o Ratio:
§ “Particular damage” is not limited to “special damage” (in the sense of
pecuniary loss)
§ May consist of proved general damage such as inconvenience or delay –
provided it is substantial and direct (not consequential) and appreciably
greater in degree than any suffered by the general public
§ as particular damage must be thus proved, thus mere nominal damages
cannot be recovered

[16.30] Interference with a public right

- To sue in public nuisance the court must be satisfied that the interference with a “public
right”

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- Public nuisance has been described as a nuisance which is so widespread in its range or so
indiscriminate in its effect that it would not be reasonable to expect one person to take
proceedings on his own responsibility to stop it, but that it should be taken on the
responsibility of the community at large – Lord Denning in Attorney-General v PYA Quarries
Ltd
- The extent to which the public is affected is a central consideration in determining whether
the defendants act interferes with a public right
- R v Clifford [1980] 1 NSW 314
o Facts: Prisoners climbed and stood on roof of jail for 14 hours
o Outcome: Not a public nuisance as no evidence of drawing a crowd or noise or
interactions with neighbors
o Ratio: in order for an action to be a public nuisance, must actually disturb a public
right

[16.40] Interference must be substantial and unreasonable

- In modern world, inconveniences are part of everyday life and must be expected
- Maitland v Raisbeck
o Defective tail light causing collision not considered as unreasonable as every driver
of any vehicle would be “turned into an insurer in respect of latent defects of his
machine” – everyday event as was not substantial
- Harper v Hayden
o Refusal to uphold public nuisance of covering plaintiffs shop with scaffolding as
defendant only effected what was necessary in order to conduct the works – was
seen as reasonable
- R v Carlile
o Defendant held liable when a crowd of people gathered to watch the burning of a
libelous effigy and was not reasonable

Private Nuisance

[16.45] Introduction
- Tort concerned with property rights
- Protects a person’s right to the use and enjoyment of their land
o Enjoyment means ordinary use of the land
o Often a matter between neighbors
o Offers protection from tangible intangible interferences
- To establish
1. Title to sue
2. Defendant had requisite knowledge of the nuisance
3. Nuisance was a substantial or unreasonable interference with the plaintiffs right to
enjoyment on their land
- Can be a single incident or a continuing course of conduct

[16.50] Title to sue

- Only a person with rights in or over property has standing to sue – must be owner or tenant
with exclusive possession
- Owner cannot sue if has leased premises to tenant
- Reversionary interest – where someone else is using the land and it reverts back when the
trust is over
- Oldham v Lawson
o Determined a rule that only one that has rights over property is able to sue

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[16.60] Interference with enjoyment of land

- Can be tangible or intangible – division of these in St Helen’s Smelting Co v Tipping – test is
between material injury property and sensible personal discomfort
- Tangible invasions include indirect physical injury to the land – e.g. flooding or fire
- Intangible interferences take the form of “sensible personal discomfort” – e.g. smell, noise,
offensive sights, vibrations
- Distinction in order to ensure the correct remedies for the nuisance

Unreasonable or substantial Interference

- Must be “give and take” similar to public nuisance – factors include duration of the
interference, frequency of the interference, extent of the interference, time and locality of
the interference
- In determining whether act is a substantial and unreasonable inference with the use and
enjoyment of land à court seek to balance competing interests of both parties
- Munro v Southern Diaries
o Cows on fam next to plaintiff created very bad smell and flies at night and disrupted
sleep à court found that one night of lost sleep is substantial interference
o The standard for unreasonable interference is the ordinary person and “not merely
according to elegant or dainty modes and habits of living”
o “The test which the law applies is not the test of an abnormal sensitiveness. A man
is not entitled to relief merely because he may happen to be unduly sensitive to
noise or smell or any other form of interference with his property.”
- In a problem question – look in the facts for any evidence that the person is unduly
sensitive

Assessment of the defendant’s activity

- Defendant’s actions and the utility of usefulness of the defendants consist are
considerations in assessing the give and take
- In some circumstances, the intention of the defendant will be relevant
- Hollywood Silver Fox Farm v Emmett
o Foxes could only breed at certain times, and when they hear loud noises they are
unable to have children à due to unrelated dispute between plaintiff and
defendant, defendant fired guns near plaintiff’s place which stopped the foxes
breeding à as it was out of malice it was seen as substantial interference (due to
the motive of the defendant)
o Defendant removed plaintiffs sign of breeding silver foxes in fear of being
detrimental to the development of his building estate
o The motive was to create the interference, leading to it being unreasonable
(requisite knowledge and unreasonable interference)

Who Can be Sued

[16.110] Creator of the nuisance

- It is not necessary that the defendant be the occupier of land to be liable for a nuisance – it
is sufficient the defendant has created the nuisance
- The creator of a nuisance is strictly liable for the nuisance that he or she creates

[16.115] Authorising the nuisance

- If the occupier permits others to undertake activities that constitute a nuisance, then the
occupier is also liable for the nuisance created by that individual

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- De Jager v Payneham & Magil Lodges Hall Inc

[16.120] Continuing or adopting the nuisance

- A defendant who does not create the nuisance, but who continues or adopts the nuisance
can be liable for that nuisance

- Stockwell v Victoria – Requisite knowledge of the nuisance

o Victorian land, dogs ran over and killed the plaintiff’s sheep – how much liability lies
on owner to protect its own sheep and how much liability on defendant to stop its
own dogs
o “The modern law can be summarised as follows. Where a nuisance has been created
by the actions or omissions of a trespasser, or by some other means, without the
actions, omissions, authority or permission of the occupier of land, the occupier is
liable if he has knowledge or ought to know of the existence of the nuisance, it is
foreseeable that damage could occur, and he fails to comply with a measured duty
of care to abate the nuisance.”
o Third element of private nuisance which is requisite knowledge of defendant of the
nuisance
o Ruled in favour of the plaintiff

Defences

[16.155] Conduct or Consent

- If plaintiff expressly consents, there is no nuisance
- Toleration of the nuisance is not evidence of the plaintiffs implied consent
- Sturges v Bridgman
o Case found that coming to a nuisance was no answer

[16.165] Statutory Authorisation

- It is a defense to an action for nuisance that the legislature authorized the commission of
the nuisance
- Allen v Gulf Oil Refining Company
o When there is a legislation that authorizes the commission of that nuisance, then it
will be allowed and not regarded as a nuisance
- Defense will fail if the activity which is authorizes could have been reasonably performed in
a way that would not allow the nuisance arise, or if case of negligence

Remedies

[16.170] Damages
- Test of remoteness
o as far as assessment of damages is concerned a defendant will, upon the basis of the
test of remoteness of damage, only be liable for that kind of damage which was
reasonably foreseeable
o foreseeability rule of remoteness is a factor negating the idea that nuisance is a
strict liability tort
o consequently, if the defendant creates a nuisance and causes material damage to
plaintiff property, the defendant will not be liable if the damage could not have
been reasonably foreseen

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[16.200] Injunction
- An injunction is an order
- interlocutory injunction
o Used prior to trial to restrain the nuisance until the matter is finally determined
o Awarded where there is a “serious question to be tried” and that it is, on the
“balance of convenience”, proper to retrain the defendant until that question is
determined at trial
- Permanent injunction
o Providing plaintiff is successful, court may grant permanent injunction
o Court must be satisfied that nuisance exists, that it is a substantial interference and
that it is likely to recur or continue

[16.215] Abatement or self help

- Refers to the removal of the offending interference (e.g. cutting encroaching branches of
trees)
- plaintiff should exercise a method that is reasonable in the circumstances
- entry upon another’s land to abate the nuisance will only be adjusted as reasonable if there
are strong reasons and notice of entry is required
- general rule that costs of abatement are not recoverable – but if the situation is that the
action was taken to mitigate the plaintiff’s damages, then he or she will be able to recover
the cost of abatement as part of reasonable mitigation
- The law does not favor abatement

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Class 3 – Negligence – the General Duty of Care

(Chapter 7 - pg.193 - 214)
Introduction

[7.05] Introduction
- Negligence denotes a defined tort with three clearly outlined elements compromising the
cause of action
o The defendant must have owed the plaintiff a duty of care (test for reasonable
foreseeability)
o That duty must have been breached
o That breach must have caused damage to the plaintiff
- Duty of case – Important and complex element of the tort of negligence
- Although the CLAs have changed the tort of negligence in many ways, they have had
relatively little effect on the duty of care itself...in the absence of an understanding of the
common law approach, the legislation is incomprehensible

[7.10] Donoghue v Stevenson – “Snail in the ginger beer bottle case.”

- One of the most famous plaintiffs in the common law world is Mrs Donoghue
In August 1928 Mrs Donoghue went with a friend to Minghella’s café near Glasgow.
- Mrs Donoghue had a soda at the café – friend ordered for her.
- Mrs Donoghue was very ill after ingesting the alleged snail-contaminated drink
- The defendant was Stevenson à the manufacturer
- Issue: major issue of liability, as Donoghue did not purchase (and hence possess a contract)
from Stevenson, as her friend purchased the ginger beer from the café who originally
purchased from Stevenson
- Plaintiff argued that manufacture has a duty of care to inspect the bottle and to ensure that
nothing else enters the bottles à Defendant argued that the plaintiffs claim doesn’t fit into
any of the recognised categories for liability (i.e. there was no contract between them)

Duty of Care in the case

- * Two main aspects – the shift from contract to the rise of the tort of negligence and a
consumer right to a duty of care
- Previously, it has been thought that the doctrine of Privity excludes the Plaintiff - The
Defendant cannot owe the Plaintiff a duty of care since they did not have a contract
- Donoghue v Stevenson – case found that Negligence claims can be brought against people
who owe you a duty of care - "You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour” à "Who, then,
in law is my neighbour?...Persons who are closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when I am directing
my mind to the acts or omissions which are called in question”
- Reasonable care - can be a class of persons that you owe a duty of care to
- Neighbour principle is limited by closeness à not all in sundry that we owe a duty of care à
only our neighbour
- Does not have to be physical proximity à e.g. doctors who are not treating the patients
have a duty of care as well now
- Concept reinforced by Heaven v Pender which was founded on the principle "that a duty to
take care did arise when the person or property of one was in such proximity to the person
or property of another that, if due care was not taken, damage might be done by the one to
the other”
- Final Statement – My Lords, if your Lordships accept the view that this pleading discloses a
relevant cause of action you will be affirming the proposition that by Scots and English law
alike a manufacturer of products, which he sells in such a form as to show that he intends

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them to reach the ultimate consumer in the form in which they left him with no reasonable
possibility of intermediate examination, and with the knowledge that the absence of
reasonable care in the preparation or putting up of the products will result in an injury to the
consumer’s life or property, owes a duty to the consumer to take that reasonable care.”

[7.40] Salient Factors

- Now the test in Australia – essentially, they are factors that are relevant in the duty of care

Reasonable Foreseeability

[7.95] The Meaning of Reasonable Foreseeability

- The issue of reasonable foreseeability is central to the question of whether a duty of care is
owed and is the most important part of negligence
- In order to establish a duty of care (and especially in the absence of a special or commercial
relationship), it is almost always necessary to establish reasonable foreseeability. Basically,
the question is whether it is reasonably foreseeable that your action might bring harm to
another. This can be defined as follows:
o An event is reasonably foreseeable if the defendant's action increases the likelihood
of the event; and
o Harm is reasonably foreseeable if there is a systematic relationship between the
defendant's action and the plaintiff's harm
- Reasonable foreseeability is a major limitation on negligence, put in place to make sure not
just anyone can sue
- It has been argued that it is important because without being able to foresee a risk one
cannot avoid it and without being able to consider the level and significance
(reasonableness) of the risk, one cannot decide whether it should be avoided
- Chapman v Hearse
o Chapman involved in car accident leaving him unconscious à Dr Cherry assisted him
on the side of the road at night and was hit and killed by Hearse à found that
Chapman was also liable for the death
o Findings: Reasonable foreseeability doesn't mean that the exact sequence was
probable. Rather, a consequence of the same general character or if the accident
is of a class that might well be anticipated
o In this case, the general consequence or the type of harm (someone being run over)
was a reasonably foreseeable result of the act (driving negligently).
o Also establishes the idea that an intervening act does not cut off liability as long
as the intervening act was a reasonably foreseeable result of the original act
o Drivers were seen as liable as they have a duty of care to Dr Cherry and all other
drivers on the road

The Unforeseeable Plaintiff

- However, there are also many cases where the consequence was completely unforeseeable,
and therefore the plaintiff could not recover damages – called an unforeseeable plaintiff
- Palsgraf v Long Island
o Palsgraf was injured as 2 guards were helping 2 men running to catch a train –
accidently a guard dislodged a parcel in one of the men’s hands and it fell à parcel
contained fireworks and injured plaintiff
o Palsgraf seen as an unforeseeable plaintiff and not able to win her claim of injury
- Bale v Seltsam Pty Ltd
o In 1995, Mrs Bale contracted mesothelioma as a result of breathing in asbestos dust
after shaking out and laundering her husband’s work clothes between 1962 and

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1965. Her husband worked for Seltsman Pty Ltd. The scientific information available
between 1962 and 1965 did not reveal the connection between dust and
mesothelioma.
o Negligent act by Seltsam, however Mrs Bale seen as an unforeseeable plaintiff as
the consequence at the time was not reasonably foreseeable
o Dissent found that the respondent ought to have known about the effects of
asbestos
o In 2009 – NSW Court of Appeal confirmed that duty of care can arise out of this
situation

Establishing the Categories of Duty

[7.45] Determining the approach to take in accepted categories

- In certain categories the courts have accepted either that a duty arises so that it does not
have to be proven (case of drivers of cares on the public highway) so that we know to what
to consider in order to prove it (case of purely economic loss caused by an act)
- Duty Categories – categories that are so accepted and defined by factors which appear in
them – in problem question e.g. patient and clinician are in the same category of duty of
care, thus there is a duty of care à if you have a category say it quickly, if not argue it
- E.g. Donoghue v Stevenson – where an act causes personal injury à test to use in cases
involving personal injury is the neighbour principle or the question of reasonable
foreseeability of harm
- Factors that may affect the approach to the duty of care:
o Whether an act or omission is involved – if an act, the kind of act (e.g. words or
physical acts)
o What kind of harm has been caused (personal injury, psychiatric harm, property
damage, pure economic loss, etc.)
o Who the defendant is (individual, public authority, manufacture, medical
practitioner)
o Who the plaintiff is (child at school, patient in hospital, third party to some other
relationship)
- When factors move away from the original paradigm of an act causing personal injury or
property damage, more required to establish duty of car

[7.50] Recognising the Categories – The Wrongs – Acts/Omissions/Words

- General rule – where the wrong is, for example, an omission, a duty to act (or a duty of
affirmative action) will not arise unless special factors exist
- It’s difficult to distinguish between an act and omission – e.g. failure of driver to put foot on
break is regarded as a part of negligent driving à it is therefore not an omission but a part
of the act of driving and therefore an act
- Example of act and omission
o Rebecca is working as a lifeguard for a public swimming pool owned by the local
authority. When she is meant to be on duty, she instead goes to a café and has a cup
of tea. Ari gets into trouble in the pool and he drowns. Rebecca has breached her
duty of care, by omission
o If Rebecca had been on duty at the pool and she had dived in to assist Ari, but her
rescue attempt did not accord with protocols followed by lifeguards, and Ari
drowns, that is an act of negligence.

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[7.65] Types of Defendants

- Individuals are the paradigm
- Defendant who may alter the requirements of duty of car include public authorities and
government – Sometimes these are the same à e.g. Shire council is a public authority but
not the government of a state
- Other defendants can be parents, school authorities, hospitals, doctors, solicitors, landlord
à some other categories that might alter the requirements of duty of care

[7.70] Types of Harm

- Physical injury and property already the paradigm
- Psychiatric injury distinguished from personal injury and alters requirements of duty of care
- General Rule – pure economic loss was not able to be sued for, it being regarded as part of
the domain of contract – changed by Hedley, Byrne v Heller but continued to need extra
requirements
- All about original harm, not consequential harm

[7.75] Novel Cases

- Where facts don’t fit into accepted categories à once it is established that harm is
foreseeable, court takes an incremental approach and still consider salient factors
o Where aspect of the case seems similar to other cases, court will make
determinations by arguing by analogy to those cases and they will not move too far
from the decided case
- However, some cases require court to come to a decision about whether or not to recognise
a duty – to some extent this is a matter of policy e.g. how should negligence fit in with other
areas of law
- In exam – when doing duty of care analysis make sure it is a accepted duty category à if
not “it is not an accepted duty category, it is a novel case………”

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Class 4 – Duty – Mental Injury

Psychiatric Harm

[8.90] The Concept of Psychiatric Harm

- “Nervous shock” traditionally term used for psychiatric harm - The law was stated in Mt Isa
Mines v Pusey “marching behind medicine and limping a little.”
- Plaintiff recovered compensation for psychiatric harm in these situations:
o Where psychiatric harm followed an injury to the self
o Where psychiatric harm developed after exposed to a situation of danger creating
fear for the self, or within the zone of physical risk
o Where psychiatric harm developed after exposure to a situation where the plaintiff
was safe from physical harm but feared for relatives
- In cases where a plaintiff claims damages for not only physical injury but for the
consequential (or “parasitic”) mental harm which followed – the duty of care is really owed
on the basis of the original physical injury
- In some situations where a person suffered from mental or psychiatric harm because of
negligence à duty of care arises because of a duty in respect to psychiatric harm à pure
case of nervous shock or psychiatric harm
o E.g. witnessed the death of a lover
- Common law not as strict as the CLA

Slow to recognise injury in this area

- Courts have been cautious in imposing duty of care for mental injury partly because of fears
of indeterminate liability
o 1888 case of Victorian Railway Commissioners v Coultas
§ “nervous shock”
§ Pure mental injury claim failed
§ Psychiatric damage could not be proven
§ As a matter of policy, to find the Ds liable would leave a “wide field open for
imaginary claims” – courts were worried about influx of cases

Negligence and Psychiatric Harm

- In order to bring an action in negligence for “nervous shock” or pure psychiatric injury
o Must show reasonably foreseeable that the person in the plaintiff’s position would
suffer harm id the defendant carried out the act contemplated
o Must be a form of harm that is compensable
o Harm must be more than mere grief or sorrow and must be a recognised form of
psychiatric injury à matter for expert evidence

Annetts v Australian Stations; Tame v NSW

- Both cases heard together because they both concerned psychiatric harm
- Tame Facts
o Mrs. Tame sought damages relating to psychotic depression developing following a
series of events commencing with a car accident and involving the incorrect
recording of police files that she had been drunk at the time of the incident
- Annett’s Facts
o Son of Annetts worked for defendant who was 16 and agreement for full supervision
at Kimberly cattle station à son was sent to work alone as a caretaker at another
cattle station à 1-month later Annetts was told he was missing à 5 months later
after several visits to WA body found and coroner found he died 5 months ago

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o Both Mr. and Mrs. Annetts claimed damages for nervous shock
- Both cases did not turn upon control mechanisms of sudden shock – Mrs. Tame’s illness
didn’t result from anything that could cause her a shock and Annetts information about
death of son was done over span of time, thus not one direct “shock”

Tame Case Reasoning

- “it would be inconsistent with such a duty to require the police officer to take care to
protect from emotional disturbance and possible psychiatric illness a person whose conduct
as the subject of investigation and report”
- Psychiatric harm was not reasonably foreseeable à dismissed with costs

Annetts Case
- “There was a relationship between the applicants and the respondent sufficient, in
combination with reasonable foreseeability of harm, to give rise to a duty of care, though
the applicants did not directly witness their son’s death, and suffer sudden shock in
consequence”
- Control Mechanisms (also called salient factors)
o *** court decided that these are unsound and are not accepted
o 1. Requirement that liability for psychiatric harm be assessed by reference to a
hypothetical person of “normal fortitude”
o 2. Requirement that the psychiatric injury be caused by “sudden shock”
o 3. Requirement that plaintiff “directly perceived” a distressing phenomenon or its
“immediate aftermath”
- Psychiatric Harm – requirement that the plaintiff suffer a recognisable mental injury
o “questions of reasonable foreseeability are not purely factual. Expert evidence
about the foreseeability of psychiatric harm is not decisive. Such evidence cannot
usurp the judgement that is required of the decision maker”
- Normal Fortitude
o The concept of normal fortitude is "imprecise and artificial" and is therefore not a
pre-condition
o "The imprecision in the concept renders it inappropriate as an absolute bar to
recovery"
o It is thus not a pre-condition
- Sudden Shock
o The condition of sudden shock is "not a settled requirement of the common law in
Australia".
o "As a growing body of criticism has pointed out, individuals may sustain recognisable
psychiatric illnesses without any particular 'sudden shock'...the pragmatic
justifications for the rule are unconvincing..."
§ Firstly, it is ridiculous to say that a plaintiff who has suffered mental harm as
a result of a series of prolonged incidents should not be entitled to damages
§ Also, the whole concept of an event which induces 'sudden shock' is illusory
- it can be attributed to any of the events in the cases of prolonged mental
suffering. In this case for example, the plaintiff could always just say that the
sudden shock was sustained when she first heard about the disappearance
of her son
§ "The requirement to establish 'sudden shock' should not be accepted as a
pre-condition for recovery in cases of negligently inflicted psychiatric harm."
- Requirement that a plaintiff “directly perceived” a distressing phenomenon and its
“immediate aftermath”

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o "Distance in time and space from a distressing phenomenon and means of

communication or acquisition of knowledge considering that phenomenon, may be
relevant to assessing reasonable foreseeability, causation and remoteness of
damage in a common law action for negligently inflicted psychiatric illness. But they
are not in themselves decisive of liability."
- Outcome
o Ultimately, it all comes down to the question of whether the harm was a reasonably
foreseeable result of the action. The relationship between the plaintiff and
defendant obviously makes a difference
o Because the Plaintiffs owed a duty of care to their son, they only agreed to let him
work for the Defendant if he was to supervise him and ensure his safety - Therefore,
the Defendant could have reasonably anticipated that any harm occurring to the
Plaintiff's child would entail mental harm upon the Plaintiffs
o Applicant for Special leave was granted

CIVIL LIABILITY ACT 2002 (NSW) s27 – s33

- S27 - Definitions
o Pure mental harm à mental harm other than consequential mental harm
o Consequential mental harm à means mental harm that is a consequence of a
personal injury of any other kind
o Pure mental harm definition does not differ from common law
- S30 - Limitation on recovery for pure mental harm arising from shock
o Limits the categories of recovering damages to only the victim, close member of the
family or spouse
- S31 – Pure mental harm--liability only for recognised psychiatric illness
o There is no liability to pay damages for pure mental harm resulting
from negligence unless the harm consists of a recognised psychiatric illness
o Diagnostic and Statistical Manual of Mental Disorders (DSM) à where recognised
psychiatric illnesses are listed
o Common law determined that harm can take the form of recognisable mental
injury, however CLA will override this with recognised psychiatric harm
- S32
o Witness as per CLA is a person who witnessed, at the scene, a person being killed,
injured or put in peril,
§ Common law differs from this, as common law is more lenient and
determines the case more on its facts – however CLA will always override
this

Wicks v State of Rail Authority of NSW

- Facts
o Plaintiff was a police officer, A train operated by the Defendant was derailed and
crashed causing great damage and injury
o Defendant admits that it was negligent in its operation of the train
o Plaintiff responded to the radio message alerting him to go help the victims of the
crash à arrived at the scene and was confronted by horrific sights of injury and
death. The area itself was dangerous and torn electrical cables were lying
everywhere à Plaintiff assisted the wounded to the best of his ability à The
Plaintiff alleges that he sustained mental harm was a result of the sights he was
exposed to at the scene
- Issue

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o Did the Plaintiff satisfy the requirement posed by s30 (2)(a) of the Civil Liability Act
2002 (NSW) - did the plaintiff witness, at the scene, the victim being killed, injured
or put in peril?
o Do the words of s30(1) mean that the mental harm needs to be connected with a
specific person?
- Reasoning
o The Defendant erred when he assumed that the 'event' causing the shock ended
when the crash ended. Here, witnessing the horrific scenes that immediately
followed still caused shock
o The Plaintiff is required to have seen the victims "Being killed, injured or put in
peril". Even if all the deaths were instantaneous at the time of the crash, victims
continued to be injured and in peril when the Plaintiff arrived
o "In such a case as the present, where there were many victims, s 30(2) does not
require that a relationship be identified between an alleged psychiatric injury...and
what happened to a particular victim
- Outcome
o Court decided that defendant’s argument failed and thus plaintiff won
o State Rail's submission that neither Mr Wicks nor Mr Sheehan witnessed, at the
scene, a victim or victims being killed, injured or put in peril should thus be rejected
o Plaintiff definitely witnessed the victims 'in peril'

CIVIL LIABILITY ACT 2002 (NSW) s32

- S32 – Mental Harm – Duty of Care
o These are additional to s30
o Requires the D to foresee harm to those persons of normal fortitude who might, in
the circumstances of the case, suffer a recognised psychiatric illness à refers to
similar version of a reasonable person without a preconcerting issue
o 4 circumstances of s32
§ (a) whether or not the mental harm was suffered as the result of a sudden
shock
§ (b) whether the plaintiff witnessed, at the scene, a person being killed,
injured or put in peril
§ (c) the nature of the relationship between the plaintiff and any person killed,
injured or put in peril
§ (d) whether or not there was a pre-existing relationship between the
plaintiff and the defendant
o S32 applies to all mental harm and now just pure à this changes the common law
as changes how a problem about normal fortitude

Normal Fortitude
- If one is unduly sensitive à not a person of normal fortitude
- Court must foresee that if a certain act occurs, that it is foreseeable that a person of normal
fortitude will develop a psychiatric injury

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Class 5 – Duty of care – Pure Economic Loss

[8.197 + Slides] Introduction

- Pure economic loss refers to situation where economic loss is not consequential on personal
injury or property damage – sometimes referred to as “relational economic loss”
- Traditionally, pure economic loss was regarded as the domain of contract à but in 1960s,
courts expanded negligence by expanding duty of care
- Negligence crept into areas that had been closed e.g. pure economic loss
- “Consequential” Economic Loss
o Economic loss which is consequential on physical injury or property damage
- “Pure” economic loss
o Economic loss which is not consequential on physical injury or property damage

Cattanach v Melchoir (2003) 215 CLR 1

- Facts
o Mrs Melchoir consulted Dr Cattanach about having a tubal ligation to prevent
conception à She told the Dr that when she was 15 her right ovary and right
fallopian tube had been removed à When the Dr performed the operation what he
saw was consistent with that history
o Therefore, he only attached a clip to the left fallopian tube
o Mrs Melchoir became pregnant. Her right fallopian tube had not been removed.
- Important legal issue à Whether the patient had suffered a personal injury or pure
economic loss
- Appellant (the doctor) argued that as a matter of policy, “the birth of a healthy child is not a
legal harm for which damages may be recoverable...This policy of the law reflects an
underlying value of society in relation to the value of human life.”
- Court’s reasoning:
o “The benefits to be enjoyed as a result of having the child are not related to that
head of damage. The coal miner, forced to retire because of injury, does not get less
damages for loss of earning capacity because he is now free to sit in the sun each
day reading his favourite newspaper. Likewise, the award of damages to the parents
for their future financial expenditure is not to be reduced by the enjoyment that
they will or may obtain from the birth of the child.”
o The birth of the child did not constitute the harm. The harm was economic harm,
which was inflicted upon the parents by the injury suffered as a consequence of the
doctor’s negligence.
o This economic expense was causally connected to the doctor’s negligence and it
was reasonably foreseeable.
- Contrary to the assumptions that appear to have been accepted by the courts below, the
present was not a case of pure economic loss
- “It was, rather, an instance of direct injury to the parents, certainly to the mother who
suffered profound and unwanted physical events (pregnancy and child birth) involving her
person, after receiving negligent advice about the risks of conception following sterilisation.
Any economic loss was not pure, but consequential
- “To deny recovery is to provide a zone of legal immunity to medical practitioners engaged in
sterilisation procedures that is unprincipled and inconsistent with established legal
doctrine.”
- The parents were entitled to recover damages for the economic consequences of the
established physical events caused by the negligence without having to satisfy the special
tests adopted by the common law for so-called ‘pure’ economic loss

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Further Introduction
- Pure economic loss can be caused by:
o Words à Negligent words e.g. Hedley Byrne v Heller Acts
o Omissions (negligent failure to act) à E.g. Perre
- “No magical formula to apply in any given case. The answer depends on broad principles and
an understanding of policy factors. Even when the tests are met, liability may be denied on
policy grounds.” (Prof Todd NZ)

Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” 1976 136 CLR 529
- Perre frequently refers to Caltex
- Facts
o In botany bay, the defendants dredge severed a pipeline in which ran Caltex’s Oil à
Pipeline is owned by a third party à The dredge knew of the pipeline and that
Caltex oil ran through it à Caltex did not claim for the property damage to the
pipeline à Caltex argued that it incurred pure economic loss because it could no
longer use the pipeline and had to run oil by truck around the bay
- Stephen J – “The need is for some control mechanism based upon notions of
proximity...guidance in the determination of the requisite degree of proximity will be
derived from the broad principle which underlies liability in negligence.”
- Salient Factors/Features
o 1) D’s knowledge that the property damaged (pipelines) was likely to be productive
of economic loss
o 2) D’s knowledge of pipelines, their position and use, from charts à “These two
factors lead to the conclusion that Caltex was within the reasonable contemplation
of the Ds as a person likely to suffer economic loss if the pipelines were cut.”
o 3) Infliction of damage by the D to the property of a third party, AOR, as a result of
conduct in breach of a duty of care owed to that third party.
o 4) The nature of the detriment suffered by the P – loss of use of pipeline
o 5) The nature of the damages claimed, which reflect the loss of use
- “These factors demonstrate a close degree of proximity between the D’s conduct in
severing the pipelines and the economic loss which Caltex suffered when its chosen means
of supplying its terminal with products was interrupted by the injury to the pipelines. ...all
these characteristics combine to constitute a relationship of sufficient proximity to give rise
to a duty of care owed to Caltex for breach of which it may recover its purely economic
loss.”
- Outcome: “I would, for the foregoing reasons, conclude that the economic loss suffered by
Caltex is such as to be recoverable...”
- Held:
o D’s liable for extra costs incurred, Close proximity of parties was important to
reasoning, Also, important that Ds knew of risk to Caltex as specific Individual – thus,
no fear of liability of indeterminate class. Loss was foreseeable.

[8.200] Negligent Words - Hedley Byrne v Heller

- Pure Economic Loss caused by a negligent misstatement
- Facts
o Plaintiff was an advertisement agency, working for a company called Easipower
o The Plaintiff was concerned about the financial position of Easipower, and sought
help through their bankers, who obtained information through the Defendant
[Heller], the banker of Easipower

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o The Defendant, through statements and documents marked ‘without responsibility

on the part of this bank [Defendant], replied that Easipower is in good a financial
position. This was done a couple of times
o Plaintiff relied on this when making investments and later Easipower went bankrupt,
causing the plaintiff financial loses
- Issue
o Is there a difference between negligent words and acts à particularly in regard to
pure economic loss?
- Judgement/Reasoning
o When pure financial loss results from negligent words, a duty of care will only exist
for a limited number of people - we can’t have everyone who listened to or read the
words recovering damages.
o A duty of care will arise when there is a type of 'special relationship'.
o This can be extended to any relationship where "it is plain that the party seeking
information or advice was trusting the other to exercise such a degree of care the
circumstances required, where it is reasonable for him to do that, and where the
other gave the information or advice when he knew or ought to have known that
the inquirer was relying on him
o This sets 2 criteria:
§ Reasonable reliance - was the plaintiff reasonable in relying on the
information?
§ Knowledge of the reliance - did the defendant know or ought to have known
(reasonably) that the plaintiff will rely on this information?
o If advice is given without a disclaimer, the advice-giver assumes at least some sort of
responsibility
o However, here was a disclaimer, and therefore there is no liability
- Ratio
o Lord Morris – if someone possessed of a special skill undertakes, quite irrespective
of contract, to apply that skill for the assistance of another person who relies upon
such skill, a duty of care will arise

Esanda Finance Corp v PMH

- Facts
o Plaintiff [Esanda] was lent money to companies associated with a company named
Excel, which would indemnify the Plaintiff if the companies were unable to
o Allegedly, the Plaintiff entered this agreement based on certifications made by the
Defendant [PMH], who were the auditors of Excel
o Excel was unable to provide the indemnities, and the Plaintiff sued the Defendant
pure economic losses as a result from negligent words
- Legal Issue
o Pure Economic Loss caused by a negligent misstatement
- Judgement
o The Plaintiff in this case relied on reasonable foreseeability alone, and did not try
to prove a special relationship between it and the Defendant – Since mere
foreseeability is not enough in a case of pure economic loss (a special relationship is
needed), the Plaintiff fails
§ "Mere foreseeability of harm does not, where the only harm is pure
economic loss, give rise to a duty of care”
§ "The reason for this is that a duty of care imposed by reference to the mere
foreseeability of harm in the form of financial loss would extend liability in

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negligence beyond acceptable bounds. Financial loss occurs as the result of

legitimate commercial competition, and commercial activity would be stifled
if the law were to impose a duty to take care to avoid that loss”
§ Thus, for a duty of law to arise in cases of pure economic loss, the law
requires, in addition to the foreseeability of harm, a special relationship
between the parties which is described as a relationship of proximity."
o Dawson J also mentioned that ‘request for information' is not a condition’ - request
for information is not necessary in order to satisfy the element of reasonable
reliance
§ If the defendant said the negligent words for a different purpose than to
induce or advise the plaintiff (i.e., the words were meant for someone else),
then it was not reasonable for the plaintiff to rely on them)
§ It doesn’t matter if the inducement was intentional or not

[8.220] Pure Economic Loss Caused by an Act – Perre v Apand

- Facts
o Plaintiff [Perre] had a contract to sell potatoes in WA
o Defendant [Apand] supplied bad products which caused infection in a land
belonging to Sparnon, the Plaintiff's neighbour
o WA Regulations meant that potatoes grown close to infected land cannot be sold in
WA, therefore the Plaintiff's potatoes were not allowed in
o The Plaintiff suffered great economic loss
- Issue
o Idea of proximity regarding negligent acts
- Judgement
o The court rejects 'proximity' as a requirement – “this Court no longer sees proximity
as the unifying criterion of duties of care”
- Judgement Continued à Reasonable foreseeability test created, followed by a list of
considerations as to why a duty should imposed (or not imposed)- SALIENT FEATURES
o 1. Indeterminacy of liability - a duty of care will only be imposed if liability does not
become indeterminate (unknown)
§ This is relevant because economic loss can 'ripple' down to a large amount
of parties. "As a general rule, no duty will be owed to those who suffer loss
as part of a ripple effect”
§ "Liability is indeterminate only when it cannot be realistically
calculated...Indeterminacy depends upon what the defendant knew or
ought to have known of the number of claimants and the nature of their
likely claims, not the number or size of those claims
o 2. Unreasonable burden on commercial activity - the courts approve of commercial
competition and will not impose a duty of care if the duty of care is an unreasonable
burden.
o 3. Vulnerability - was the plaintiff vulnerable?
§ A plaintiff is vulnerable if he was unable of taking reasonable steps to
protect himself from the negligent act
§ If a plaintiff could have taken reasonable actions to protect himself, a duty
of care will not be imposed.
§ For example, in Esanda Finance, the plaintiff failed because it was able to
protect itself from the negligence.
§ For vulnerability, it is also relevant whether:
1. Whether the plaintiff was subject to the defendant’s control.

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2. Whether there was reasonable reliance/assumption of responsibility

placed on the defendant’s information.
o 4. Knowledge - did the defendant know that its conduct would cause harm to
individuals such as the plaintiff?
o The court also notes that insurance is irrelevant
- Test applied in this case
o Reasonable foreseeability satisfied:
§ "The losses suffered by the Perres [Plaintiff] were a reasonably foreseeable
consequence of Apand's conduct in supplying the diseased seed”
§ The reasonably foreseeable class of persons was farmers
o Vulnerability exists:
§ "The Perres' business was vulnerably exposed to Apand's conduct because
the Perres were not in a position to protect themselves against the effect of
Apand's negligence apart from insurance (which is not a relevant factor)..."
o No indeterminate liability, no interference with commercial freedom:
§ "Imposing the duty on Apand does not expose it to indeterminate liability
although its liability may be large; imposing the duty does not unreasonably
interfere with Apand's commercial freedom because it was already under a
duty to the Sparnons to take reasonable care..." - ie, imposing a duty
wouldn't put a burden on the defendant which he didn't already owe to
someone else anyway.
o The Defendant owed the Plaintiff a duty of care to prevent causing even pure
economic loss
- the Plaintiff wins.

1. It’s pure economic loss

2. Yes, it is reasonably foreseeable
3. P relied reasonably on the negligent
misstate
4. Defendant knew due to the
confirmation – a request was made
5. Was the plaintiff vulnerable?
§ Due to the confirmation the
plaintiff was vulnerable
§ Attempted to protect
herself by confirming the
information

1. It’s Pure economic loss

2. Yes, reasonably foreseeable as it
was a health inspector and the person
wanted to buy the property – thus
gave property the all clear
3. Was a negligent misstatement not
an act?
4. Reasonably relied on the
misstatement
5. Defendant knew plaintiff was relying on misstatement
6. Was vulnerable to pure economic loss, but maybe could of protected themselves by
inspecting themselves. However, the professional opinion was suitable

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Class 6 – Occupiers liability

Overview
- Tort recognises that occupiers of land owe a duty of care to people who legally enter their
land:
o “That an occupier of land owes a duty of care to a person lawfully upon the land is
not in doubt.” (Modbury Triangle per Gleeson CJ, see SVW p.239).
- Who is an occupier?
o In negligence: a person who owns, or is on, and controls the relevant land. E.g.
tenant
o E.g. anyone who is exercising control on the land
such as business people.
- Control is important
o The control exercised over the land is the source of the duty
- Was the harm foreseeable?

Australia Safeway Stores Pty Ltd Zaluzna

- Facts
o Plaintiff [Zaluzna, respondent] went into the Defendant's store [Australia Safeway,
appellant]
o It was raining outside so the foyer was wet and the defender slipped and injured
himself
o The Plaintiff sued for negligence
- Issue
o Occupiers Liability
- Reasoning
o Defendant alleged that Plaintiff comes within 'invitee' category and damage wasn't
unusual, therefore no duty.
o Courts rejected the traditional approach to occupiers' liability and decided that from
now on the general duty of care formula under Donoghue v Stevenson should be
applied to all cases.
o Here we have a commercial relationship as well as reasonable foreseeability,
therefore there is a duty of care.
o Court argued that when you expect people to come into your shop and pay you
money, the least you can do is provide a safe environment
- Quotes from Case
o “All that is necessary is to determine whether, in all the relevant circumstances
including the fact of the D’s occupation of premises and the manner of the P’s entry
upon them, the D owed a duty of care under the ordinary principles of negligence to
the P. A prerequisite of any duty is that there be the necessary degree of proximity
of relationship. The touchstone of its existence is that there be reasonable
foreseeability of a real risk of injury to the visitor or to the class of person of which
the visitor is a member. The measure of the discharge of the duty is what a
reasonable man, would, in the circumstances do by way of response to the
foreseeable risk.” (Dean J in Hacksaw v Shaw (see SVW p366).
o “...the fact that the respondent was a lawful entrant upon the land of the appellant
establishes a relationship between them which of itself suffices to give rise to a duty
on the part of the appellant to take reasonable care to avoid a foreseeable risk of
injury to the respondent.” (SVW p.366)

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Duties to Third Parties – Controlling the Conduct of Others

- Cases where the D is directly liable for their own failure (or servants’ or agents’ failure) to
exercise care over the conduct of persons who cause harm to the P.
o E.g. criminal activity by a third party
o e.g. parents and the behaviour of their children

Modbury Triangle Shopping Centre v Anzil

- Facts
o Modbury’) owned the Modbury Triangle Shopping Centre in Adelaide. Anzil was a
manager of a video rental shop in the shopping centre
o Anzil was a manager of a video rental shop in the shopping centre
o after closing the video shop, Anzil was walking to his car in the car park of the
shopping centre when he was attacked by 3 assailants. He sustained serious injuries.
The car park was not lit at the time of the incident as the car park lights were turned
off at about 10pm
- Issue
o Did Modbury owe a duty of care to those lawfully on its land to protect them
against criminal acts by third parties? Did Modbury’s action or inaction cause the
injuries to Anzil?
- Reasoning
o A majority of the High Court (Gleeson CJ, Gaudron, Hayne and Callinan JJ, with Kirby
J dissenting) allowed Modbury’s appeal on both issues and decided that Modbury
was not liable for Anzil’s injuries. It held:
§ As an occupier Modbury owed Anzil a duty of care, but the duty did not
extend to taking reasonable steps to prevent criminal conduct by third
parties which would cause physical injury to Anzil in circumstances where
Modbury was unable to control the conduct of the assailants
§ Modbury’s failure to leave the car park lit facilitated the crime, in a similar
way to its provision of the car park and Anzil’s decision to park there, but it
was not the cause of Anzil’s injuries.
§ The direct and immediate cause of the injuries was the conduct of the 3
attackers who were acting independently of Modbury.
§ Main issue of control – whether the defendant could control the incident
occurring
- Quotes from the Case
o “The control and knowledge which form the basis of an occupier’s liability in relation
to the physical state or condition of land are absent when one considers the
possibility of criminal behaviour on the land by a stranger. The principle involved
cannot be ignored by pointing to the facts of the particular case and saying (or
speculating) that the simple expedient of leaving the car park light on for an extra
half hour would have prevented the attack on the first respondent.” (SVW p.241).
o “The appellant had no control over the behaviour of the men who attacked the first
respondent, and no knowledge or forewarning of what they planned to do.” (SVW
p.239).
o “There was nothing special about the relationship between the appellant and the
first respondent.” (SVW p.241
o “Reliance is sometimes the basis of a duty of care. Here there was no relevant
reliance.” (SVW p.240).
o “The present case is not relevantly a case of assumption of responsibility.” (SVW
p.240).
- Significance

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 LAWS1061 – TORTS

o This decision is authority for the view that the duty of care owed by an occupier of
land to entrants to that land does not extend to taking steps to prevent criminal
conduct by third parties which would cause physical injury to a lawful entrant in
circumstances where the occupier is unable to control the conduct of the assailants.

Legal Tests
- The ‘legal tests’ in relation to duty between an occupier of premises and visitors on the
premises, after these two cases, appear to be:
o 1. The D must be an occupier.
§ “Control test” = the D must have control, or immediate right to exercise
control, over the premises such that they can prevent injury to visitors.
o 2. Liability is in respect of “premises”.
§ Land and immovable structures on land including bridges, lifts, escalators,
flagpoles, wharves and diving towers.
§ Movable structures such as ladders, scaffolding, ships and cars
o 3. Liability is to “any person on the premises” who is part of a reasonably
foreseeable class of persons who might suffer injury.
o 4. Danger can arise out of the static condition of the premises and out of activities
conducted on the land
o 5. An occupier owes a duty of care in relation to the acts of third parties if further
tests are satisfied:
§ They have “control” over the actions of the third party.
§ There is a “reasonable reliance” by the P à reliant on the owner to control
the situation
§ There is an assumption of responsibility by the occupier for the class of
persons the P comes within.

• No duty of care found à not

reasonable that the third party could
have been controlled

• Duty of care was found à looked at

special relationship, control à the
ruffian could not be described as under
control of the club, club failed to control
him and should have ejected him

• No duty of care

• Duty of care was found for all

patrons to the bar

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Class 7 – Critique of Tort law

Main Concepts
- Causation
- Balance between plaintiff and defendant

Able – A Critique of Torts

- Transformation of tort law à industrial revolution and evolving technology has shifted from
intentional torts to negligence due to increasing civil wrongs
- Three purposes of tort law
o To pass moral judgement on what has happened
o Respond to the victim’s meed for compensation
o Encourage Future Safety
- Moral Judgement
o Able believes that “tort liability is incoherent as a system of morals”
§ Failure to be consistent with proportionately understanding wrongfulness of
defendants conduct and magnitude of penalty imposed
§ Seen as either too server or too lenient
- Compensation
o Able believes “tort law is an unsatisfactory mechanism of compensation”
o 1. Some people are more likely than others to be victimised by tortfeasors who
cannot or will not pay compensation
o 2. Process of making a claim is institutionalised differently in various settings
o 3. The measure of damages in inequitable
o These biases are seen to increase inequality
o Tort law proclaims the class structure of capitalist society: ‘you are what you own,
what you earn, and what you do’.
- Judges and lawyers argue that the fear of liability will compel potential tortfeasors to
engage in a cost-benefit analysis, taking just those safety precautions that cost lss than the
accidents they prevent
o
- Reproduction of inequality
o Able found that “the employer recovered more often than the unemployed”
o Found that the failure to compensate consistently causes an increase in inequality
à example that of victims disabled for two weeks or more, men recovered tort
damages almost twice as often as women
- Ineffective means of improving safety
o
- Proposals by Able regarding compensation
o Compensation should respond to what happened rather than how it happened –
focuses on the need rather than the cause or faul
§ It should be universally available: to those suffering congenital disability and
illness as well as injury; to those who cannot identify a culpable agent; and
to those who have themselves to blame
o State compensation should affirm the equal humanity of victims, both materially
and symbolically
§ It should provide the same level of income for all
§ Property loss should not be compensated as this will only reproduce
inequality and undermine community
o Intangible (e.g. pain and suffering) harm should not be compensated

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 LAWS1061 – TORTS

§ Compensation for pecuniary loss treats equals unequally (all people are
created equal but damages vary according to personal wealth),
compensation for intangible harm treats unequals equally (all human
experience is unique but damages for intangible harms reduce them to the
common currency of money).
§ Non-pecuniary damage dehumanises the response, substituting money for
compassion, arousing jealousy instead of sympathy, and treating experience
and love as commodities.

Bismark and Paterson

- No Fault Compensation Scheme
o NZ adoption of government funded system for compensating people with injuries
replacing tort system
o Allows for avoidance of litigation when dealing with personal injury claims including
medical injuries
- Determination for Compensation Claims - Advantage
o Claims are decided in the ACC’s national claim unit, based on information provided
by patients and their providers and advice from independent clinical advisers
o Usually processed in weeks with statutory requirement of decision within 9 months
o ACC accepted 40% of all claims and dissatisfied claimants may request a review à if
this fails they have a right of court appeal
- ACC funded through tax
- Disadvantage à Issue seen of “no accountability” à someone else pays compensation for
your failure to provide duty of care
- Also, some compensation seen as inadequate e.g. woman and the elderly, who are not pad
in employment at the time of the injury and thus are unable to claim earnings related to
compensation

* Even through NZ are not compensated as much money as AUS, it is closer to guaranteed

David Fisher
- “Other striking contrasts between New Zealand and the United States appear in social
welfare and insurance programs. We discovered one of them when a friend suffered an
injury in an athletic event. To our amazement, she was compensated by the government.”
- ACC is “more fair than the American tort system” which “brings large settlements to a few
people...while most victims of accidents get nothing.”
- “New Zealanders are appalled by the American system of tort law. Americans in turn are
astonished by New Zealand’s system of public accident compensation. They believe that if
people are paid for having accidents, they will have more of them. New Zealanders reply
that their system is rarely abused. Whatever, the truth may be, it is clear that the American
and New Zealand systems were grounded in different ethical principles. The American
system rests on an idea of individual freedom. The NZ system is based on an idea of
fairness.”

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Donselaar v Donselaar à NZ Case 1982

- “The ‘mischief’ which the Accident Compensation Act set out to remedy must have been
primarily the uneven and inadequate scope of common law negligence actions as a means of
securing compensation for personal injury in modern society.”

More Theory
- “There were only minor misgivings aired by personal injury lawyers and I think that’s
because:
o NZ is a country with a very strong egalitarian ethic. The social conscience in NZ is
strong and supported by the vast majority of citizens, even capitalists. The personal
injury litigation model was O.K. for those who could afford it but not for many who
could not. That was very unfair and contrary to NZ's sense of social justice
o 2) We recognised that the personal injury system, and litigation, promoted conflict,
not resolution, ruined relationships and was mainly of benefit only to lawyers.”
o 3) Most thinking observers considered the ACC legislation ground breaking and very
worthwhile. Unlike some legislation, it made sense
o 4) And the personal injury lawyers understood that although they would lose quite a
lot of work and revenue, new legislation always results in new legal work, and
eventually a lot of it! So it has proved with the ACC issues!”

Accident Compensation Corporation v Ambros [2007] NZCA 304, [2008] 1 NZLR

- “At the broadest level of generality, [the] aim of [ACC] is to promote distributive rather than
corrective justice by spreading the economic consequences of negligent conduct over the
whole community and to provide compensation for injury (regardless of fault).”

ACC Legislation
- S3 - “The purpose of this Act is to enhance the public good and reinforce the social contract
represented by the first accident compensation scheme by providing for a fair and
sustainable scheme for managing personal injury that has, as its overriding goals, minimising
both the overall incidence of injury in the community, and the impact of injury on the
community (including economic, social, and personal costs).....”
- Eligibility for ACC cover
o Must be seen as a “personal injury” or death
o Most physical injury is covered
o Mental Injury is covered if
§ It is a result of a physical injury
§ Caused by certain criminal acts
§ Work related mental Trauma
- Entitlements
o Rehabilitation
o Compensation (first week)
o Weekly compensation
o Lump sums
o funeral grants, survivors’ grants, weekly compensation for the spouse or partner,
children and other dependants of a deceased claimant, and child care payments.
- Not covered by ACC
o Illness
o Stress, hurt feelings, loss of enjoyment or other emotional issues (these may be
covered if these are the direct result of a physical injury or sexual abuse)

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o Conditions related mainly to ageing

o Non-traumatic hernias, eg from coughing or sneezing, or not directly as a result of
trauma
o Injuries that come on gradually and are not due to a work task (non-occupational
gradual process injuries)
o Damage to items that do not replace body parts such as hearing aids, glasses,
pacemakers and gastric bands.

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Class 8 – Duty – Public Authorities

- Duty of care – special parties – special rules exist for some parties E.g. public authorities
- What are public or statutory authorities and what is their purpose?
o Bodies “entrusted by statute with functions to be performed in the public interest or
for public purposes” (Mason J, Sutherland Shire Council v Heyman)

S41 CLA 2002 – PART 1 FLOWCHART

- Public Authority is seen as
o the Crown
o (b) a Government department, or
o (c) a public health organisation, or
o (d) a local council, or
o (e) any public or local authority constituted by or under an Act, or
o (e1) any person having public official functions or acting in public official capacity, or
o (f) a person or body prescribed (or of a class prescribed) by the regulations as an
authority to which this Part applies, or
o (g) any person or body in respect of the exercise of public or other function of a class
prescribed by the regulations for the purposes of this Part

Introduction to Public Authorities

- They may be liable in public law if they exercise their powers outside the public interest
- Since Geddis v Proprietors of Bann Reservoir, a public authority may be liable for negligence
for the way it exercised its statutory power.
- But, a key issue is always whether the public nature of the authority means that it should
not be sued in private law.
- These cases involve much discussion about policy. (e.g. see Qs 5 and 6 of the McHugh 6-
point test.)
- Common Law and CLA Interaction
o “The legislation depends on and by no means completely displaces the common
law”
- 1) What is the difference between a public authority and a statutory power? Should they be
treated differently in law?
o Duty: shall or must
o Power: may or discretion
o This is done by looking at the statute
- 2) Should Public Authorities be liable in negligence on the same basis as an ordinary citizen
o The policy/operation distinction reflected concern about the authorities’ limited
resources and that often policy matters relate to budgetary allocations which courts
should be reluctant to interfere with
- 3) There are 4 possible categories/types of duty of care in actions involving a public
authority
o Negligent exercise of a statutory power --> ‘may’ or ‘discretion’
o Failure to exercise a statutory power à followed by McHugh 6-point test
o Failure to exercise a duty à ‘shall’ or ‘must’
o Negligent exercise of a duty à ‘discretion’ or ‘may’

History
- Sutherland Shire Council
o Seminal case in AU on liability of public authorities in negligence

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o Pure economic loss – reduced house value caused by council’s failure to inspect the
foundations of the property
o Policy/operation distinction – way of conceptualising when the courts could and
could not impose a duty
o If policy, courts would not impose a duty.
o If operational (carrying out a policy), courts may impose a duty
- Later AU cases followed Sutherland
o Note: “doctrine of general reliance”
o e.g. Pyrenees Shire Council v Day (1998)
§ Majority emphasised “fictional” nature of doctrine of reliance
§ Gummow J rejected general reliance and preferred the RF + salient factors
approach

Crimmis v Stevedoring Industry Finance Committee

- Facts
o Crimmins was employed as a waterside worker at Port Melbourne between 1961
and 1965.
o The Stevedoring Industry Finance Committee Act 1977 – respondent was to assume
“all the liabilities and obligations of the Authority that existed” as at 26 Feb 1978.
(The previous Authority had been abolished and replaced with SIFC).
o Crimmins unloaded asbestos cargoes.
o Diagnosed with mesothelioma. Dies.
o He argued that the Stevedoring Industry Finance Committee (SIFC), as the successor
to the Authority, owed him a duty of care which had been breached and caused his
mesothelioma.
- Issues
o Whether a duty of care was owed to Crimmins
o Whether the SIFC owed a duty as successor of the Authority
- What Category is this decided on
o This fits under the 3rd Section à Failure to exercise a duty
§ The court found both a statutory and a common law duty thus also
section 2 of Failure to excersize a statutory power must be examined
o However, explanation of 6-point test in expanding the scope to be used on cases
regarding public authorities in the future
- McHugh J – 6-point test
o Favours the incremental approach - "ascertaining whether the case comes within a
factual category where duties of care have or have not been held to arise.”
o If it is a new category of cases, we do an incremental test for relevant factors which
have arisen in previous cases concerning public authorities. The process is as
follows:
§ Reasonable foreseeability - as usual, reasonable foreseeability is the
cornerstone of a duty of care
§ Power/control - did the defendant, by virtue of the statute giving it powers,
have the power to protect the plaintiff? Also, did the defendant have a
degree of control over the plaintiff?
§ Control will also be satisfied if the defendant assumed responsibility
for the plaintiff.
§ The presence of control pretty much means a duty of care - "it can
seldom be the case that a person, who control or directs another
person, does not that person a duty to take reasonable care to avoid
risks of harm from that direction or the effect of that control[2]." and

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"usually the very fact of the direction or control will itself be

sufficient to found a duty[3]."
§ Vulnerability - was the plaintiff vulnerable, in the sense that he could not be
reasonably expected to protect himself?
• Exceptions:
o If the public authority has control (or assumes a
responsibility) to help the plaintiff, he is considered
automatically vulnerable.
o If the public authority has a statutory obligation to protect
(however, this is rare, because if there was already a
statutory obligation to protect, this would immediately
entail a duty of care and there would be no way of denying
the duty).
§ Knowledge - did the defendant know or ought to have known that its non-
feasance will most likely bring about harm to the plaintiff? Moreover, did
the defendant have sole knowledge? (as in, no one else knew of the risk
except for the defendant)
§ Policy - is the alleged negligence a part of the defendant's exercising of
'core' policy areas or 'quasi-legislative' powers? If yes, no duty of care. Refer
to the policy/operation distinction.
§ Statutory scheme - check the statutory scheme to see whether imposing a
common law duty would be inconsistent to the duties given to the public
authority by the statute. (if yes, no duty of care)
• As in, will there be a conflict of duties?
- The incremental process is answered as follows:
o Reasonable Foreseeability – Yes. The risk of harm was reasonably foreseeable
o Power/Control – Yes. The defendant had tremendous power and control over the
workers. This is the principle reason here why there is :*definitely a duty of care
o Vulnerability – Yes. Nature of the relationship made the Plaintiff very vulnerable
and unable to protect themselves. Moreover, the Plaintiff was already under the
control of the defendant and therefore is automatically vulnerable
o Knowledge – Yes. The defendant had knowledge of the possible harm
o Policy – No. Although some of the powers were 'quasi-legislative' in nature and thus
immune from a duty of care, plenty of other powers which could have been used
were clearly operational matters
o Statutory Scheme – No. There is no inconsistency between imposing a duty of care
and the statutory scheme in this case. No policy reasons to deny a duty of care
- Therefore, there is a duty of care.
- *** NEED YES FOR 1-4 AND NO TO 5 & 6 FOR DUTY OF CARE

Romeo v Conservation Commission – “Failure” Public Authority Case

- Plaintiff, 16, when she fell 6.5 metres from the top of a cliff in Darwin. She became a
paraplegic
- The site was a reserve managed by the Conservation Commission.
- Source of duty of care: public authority’s statutory power of management and control of the
reserve.
- “a risk which is not far-fetched or fanciful is real and therefore foreseeable.” But in the
“present case the risk existed only in the case of someone ignoring the obvious.”
- There was also no fence next to this cliff for over 100 years and no issues had arisn

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- Scope of duty: “Where a risk is obvious to a person exercising reasonable care for his or her
own safety, the notion that the occupier must warn the entrant about that risk is neither
reasonable nor just.”
- “There was no breach of the respondent’s duty of care in failing to erect a barrier at the cliff
edge.”
- Comparison with Nagle case (p236SVW)- public authority owed a duty to a swimmer who
dived in to pool, hit head on rock and became a quadriplegic. The public authority promoted
the venue for swimming and had a statutory duty to manage it for the benefit of the public

Graham Barclay Oysters v Ryan

- Mr Ryan was one of over 100 people who became ill with Hepatitis A after eating
contaminated oysters
- from Wallis lake in NSW.
- Main cause of contamination was heavy rainfall which increased pollution levels of the lake.
- They sued company that harvested the oysters and Great Lakes Council (public authority).
Council exercised regulatory functions in relation to Lake and State of NSW had powers of
control over the lake
- Ps argued Ds had a common law duty to exercise their powers and failure to exercise powers
constituted negligence

CLA 2002 Par5 5, SS41, 42, 43A

- 1) Consider s 42. It applies to “functions required to be exercised by the authority.” What is
the definition of “functions”?
o A) According to this section, in what circumstances will a duty or breach finding not
be imposed on a public authority? à predominantly about financial resources
- 2) Consider s43A of the CLA. What is a special statutory power? à that is conferred by or
under a statute, and that is of a kind that persons generally are not authorised
to exercise without specific statutory authority.
o A) How does this change the common law tests? à overrides common law tests as
provides escape
o B) Apply s43A to Crimmins. Would it change the outcome? Why, why not? à yes,
will change as the special statutory power will override the common law test used
- 3) Consider s44. What categories/types of duty does it apply to à category 3 and catergory
2 of the flow chart
o A) In what way does the section limit actions against public authorities? à A public
or other authority is not liable in proceedings for civil liability if 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.

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Class 9 – Breach of Duty – Standard of Care

Recap of the Duty of Care

- Three elements of the tort of negligence
o 1. The Defendant must have owed the plaintiff a duty of care
o 2. The duty must have been breached
o 3. That breach must have caused damage to the plaintiff

How to Prove a Breach

- Determine whether the defendant is in breach of that duty à this enquiry has two limbs
o 1. To establish breach, the plaintiff must prove that the defendants conduct fell
below the required standard of care. The standard of care is determined by
reference to the acts or omissions of a notional “reasonable person” in the same
circumstances as the defendant
o 2. Reasonable foreseeability of a real risk of injury arising for the defendant conduct

Breach Steps and Questions for a Problem Question

- 1. Standard of care. Who is the ‘reasonable’ person?
o Children (McHale)
o Mental illness (Carrier)
o Learners/Extra skill (Imbree)
- 2. Can the D utilise CLA s5O and s5P (the Bolam principle, Rogers)?
o Is the D a “professional”?
o Is the D “providing services”?
o Is the service/practice “widely accepted”?
o Is the opinion “irrational”?
- 3. Reasonable foreseeability of risk of injury “not insignificant” (CLA s5B).
- 4. Calculus of negligence CLA s5B
o Probability (Romeo, Dederer)
o Likely seriousness (Paris v Stepney)
o Burden of taking precautions (Woods)
o Social utility (E v Red Cross)

[10.205] The Reasonable Person

- The reasonable person standard has been described as the “man on the Clapham omnibus”;
the “man on the Bondi tram”; the “reasonable man of ordinary intelligence and experience”
- The standard of care is measured against the defendant conduct is measured as he objective
one of the reasonable people in the circumstances with no allowances for a defendant’s
individual idiosyncrasies
- At law, this is seen as an objective test
- The objective standard also extends to the defendant’s finances
- The test is that of a defendant with reasonable resources
- “The defendant may be stupid, slow-witted, clumsy or accident prone; he may be disabled
or sick’ all this is irrelevant. The judge is saying what should have been done, now what
could have been done, by this defendant
- Gender, ethnicity and other demographic characteristics should not be relevant to the court
when undertaking their reasonable person determination, however this still manages to
affect decisions

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Feminist Critique
- Legal feminist scholars argue that the idea of reasonable person is a “legal fiction “due to its
subjective nature even through it is an objective test
- The “man of ordinary prudence” originated in the early 19th C in Vaughan v Menlove.
- “...although it is also true that the reasonable man is not devoid of all characteristics which
make him human: age, special skills and, in some instances, disability may all find their way
into the fiction which the courts invoke. However, by and large, neither the personal
characteristics nor the particular weaknesses of the D are considered when evaluating the
behaviour...”
- “...some judges and commentators...conclude that the reasonable man is no more than a
convenient legal fiction disguising the application of subjective judicial preferences and
value judgments. He is merely one of a range of legal devices which operate to ‘obscure the
policy content of judicial decision making’.” (p450 SVW).
- Rabidue v Osceola 1986 US
o Plaintiff sued employer for sexual discrimination and harassment in the workplace
o Not a negligent action
o Keith J (Dissenting) raises questions about the determination of the standard of care
o “Nor do I agree with the majority holding that a court considering hostile workplace
environment claims should adopt the perspective of the reasonable person’s
reaction to a similar environment...In my view, the reasonable person perspective
fails to account for the wide divergence between most women’s views of
appropriate sexual conduct and those of men...the relevant inquiry at hand is what
the reasonable woman would find offensive, not society, which at one point also
condoned slavery. I conclude that sexual posters and anti-female language can
seriously affect the psychological wellbeing of the reasonable woman and interfere
with her ability to perform her job.”

McHale v Watson – Children in regard to negligence

- Watson (12 years old) threw a dart aiming for a sick post but missed and hit Mchale (9 years
old) who became blind in one eye
- Applied standard of care of an ordinary 12-year-old boy - Young children are "expected to
exercise the degree of care one would expect, not of the average reasonable man, but of a
child of the same age and experience."
- This is because childhood is a normal stage of humanity that everyone undergoes. It would
be unfair to require a child to have the response of an experienced adult.
- This does not break the idea of an objective test - it is consistent with it because it measures
objectively with reference to other children.
- Owen J and McTiernan and Kitto JJ allowed for the appeal and decided it should be retired
- Menzies J disagreed à believed that regardless if compared to reasonable man or
reasonable boy, he was still negligence, also concluded that the test of an ordinary
reasonable man should have been used in the circumstances and the appeal should of
succeeded
- Quotes
o Kitto J: “But it does not follow that he cannot rely in his defence upon a limitation
upon the capacity for foresight or prudence, not as being personal to himself, but as
being characteristic of humanity at his stage of development and in that sense
normal. By doing so he appeals to a standard of ordinariness, to an objective and
not a subjective standard. ...normality is, for children, something different from
what normality is for adults.” (p457 SVW)

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o Kitto J: “...boys of twelve may behave as boys of twelve; and that, sometimes, is a
risk indeed.” (p458 SVW).
o Mezies J: “...if a child’s conduct is to be judged by a child’s standards, presumably
there should also be special standards of care applicable to other classes of persons
having less capacity than the ordinary reasonably prudent man – e.g. the mentally
defective or the senile...” (p458 SVW)
- Conclusion à Standard of care for children are lowered

Carrier v Bonham – Mental Illness and Disability

- A man suffering from Schizophrenia walked in front of a bus, hurting himself. As a result, the
bus driver suffered great mental harm, and sued the pedestrian
- "Unsoundness of mind is not a normal condition...and it is not a stage of development
through which all humanity is destined to pass. There is no such thing as a 'normal' condition
of unsound mind...For that reason it would be impossible to devise a standard by which
tortious liability of such persons could be judged as a class."
- "insanity is a misfortune and not a privilege. It attracts human sympathy but not, at least in
the case of negligence, immunity under the law of civil wrongs."
- “If in the process they take advantage of that liberty to venture, even if briefly, into “normal
society”, it seems only proper that, in the event of their doing so, their conduct should be
judged according to society’s standards including the duty of exercising reasonable foresight
and care for the safety of others”
- Thus, the mental disability did not diminish or reduce his liability in negligence to the
plaintiff."

Imbree v McNeilly; McNeilly v Imbree - Learners and Knowledge

- Appellant (Imbree) allowed the respondent (McNeilly) to drive a four-wheel drive with little
experience and didn’t own a learners permit he lost control and the appellate who was a
front seat passenger was seriously injured à they both knew that the respondent couldn’t
drive but continued to drive anyway, resulting in a crash
- “What was the standard of care that the first respondent (the driver) owed to the appellant
(the passenger)? Was it, as this Court held in Cook v Cook, “that which is reasonably to be
expected of an unqualified an inexperienced driver in the circumstances in which the pupil is
placed”? Or was it, as the appellant submitted, the same objective standard of care as a
licensed driver?” (Imbree, see p461 SVW)
- “These reasons will show that the standard of care which the driver owed the passenger was
the same as any other person driving a motor vehicle – to take reasonable care to avoid
injury to others. The standard thus invoked is the standard of the “reasonable driver”. That
standard is not to be further qualified, whether by reference to the holding of a licence to
drive or by reference to the level of experience of the driver. Cook v Cook should no longer
be followed.” (Imbree, p462 SVW)
- “...the essential requirement that the standard of care be objective and impersonal.”
(Imbree, see p463 SVW).
- “The common law recognises many circumstances in which the standard of care expected of
a person takes account of some matter that warrants identifying a class of persons or
activities as required to exercise a standard of care different from, or more particular than,
that of some wholly general and ‘objective community ideal’. Chief among those
circumstances is the profession of particular skill. A higher standard of care is applied in
those cases. ...At the other end of the spectrum, the standard of care expected of children is
attenuated.” (Imbree, see p465 SVW)
- "That standard of care is not to be further qualified, whether by reference to the holding of
a licence to drive or by reference to the level of experience of the driver."

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- "It is, and must be, accepted that a learner driver owes all other road users a duty of care
that requires the learner to meet the same standard of care as any other driver on the
road."
- "to describe the relevant comparator as a "licensed driver" diverts attention from the
central inquiry: what would a reasonable driver do? Being authorised by the applicable law
to drive unsupervised on a public road is neither a necessary nor a sufficient characteristic of
the reasonable driver. Holding or not holding the relevant licence is irrelevant to the
description or application of the relevant standard of care."
- Concept of knowledge à this was not found as relevant as distinguished from cook as
usually the other person would now they are a learner driver and other road users would
also know this (due to L plates) à continued to be objective with ruling
o Knowledge should go to contributory negligence thus not relevant
- Outcome and Conclusion
o Learners are still held to the same reasonable person test

Professionals and the Common Law

- Where a defendant is considered a professional (that is, a man possessing expert skill in an
area), he will be held to a higher standard of care in his field of expertise. Even if a
professional has no experience, he is still held to the high standard of care of professionals.
- Originally, the courts followed the Bolam Principle, which said that a professional cannot be
found negligent if he acted in accordance to a widely accepted practice (recognised by some
professional body)
o Law imposes duty of care, however Bolam principle states that the standard of care
is a matter of medical judgement
- Rogers v Whittaker
o Facts: The Plaintiff had cosmetic surgery over a defective eye. In the process of the
surgery, the Defendant injured the Plaintiff's good eye, thereby blinding her
completely à defended continued to incisively question the surgeon about injuring
her good eye
o Held: Rejection of the Bolam principle. Rather, 'the standard of reasonable care and
skill required is that of the ordinary skilled person exercising and professing to
have that special skill'
o Case is about the duty to inform à information and risks which is treated
differently in Australia to treatment à CLA s5P
o Rogers distinguishes treatment and the provision of information
o Patient won
o QUOTES
§ “In Australia, it has been accepted that the standard of care to be observed
by a person with some special skill or competence is that of the ordinary
skilled person exercising and professing to have that special skill. But, that
standard is not determined solely or even primarily by reference to the
practice followed or supported by a responsible body of opinion in the
relevant profession or trade...while evidence of acceptable medical practice
is a useful guide for the courts, it is for the courts to adjudicate on what is
the appropriate standard of care...” (pp469-70 SVW).
§ “The factors according to which a court determines whether a medical
practitioner is in breach of the requisite standard of care will vary according
to whether it is a case involving diagnosis, treatment or the provision of
information or advice.” (p470 SVW)
§ “...a risk is material if, in the circumstances of the particular case, a
reasonable person in the patient’s position, if warned of the risk, would be

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likely to attach significance to it or if the medical practitioner is or should

reasonably be aware that the particular patient, if warned of the risk,
would be likely to attach significance to it.” (p471 SVW).
§ “While the opinion that the respondent should have been told of the
dangers of sympathetic ophthalmia only if she had been sufficiently learned
to ask the precise question seems curious, it is unnecessary for us to
examine it further, save to say that it demonstrates vividly the dangers of
applying the Bolam principle in the area of advice and information. The
respondent may not have asked the right question, yet she made clear her
great concern that no injury should befall her one good eye.” (pp471-2
SVW).
- Some characteristics or attributes of particular classes of D have been grafted onto the basic
standard of care.
o E.g. professionals: architects, medical practitioners, engineers, solicitors,
accountants, insurance brokers
o The common law standard of care to be applied to professionals is that of the
reasonable skilled professional in the circumstances.
o “The standard of reasonable care and skill required is that of the ordinary skilled
person exercising and professing to have that special skill.” à Rogers
- In a problem question
o Must say who the ordinary person is

CLA s50 and s5P

- CLA predominantly is incorporated in regard to professionals
- S50
o This section is about treatment
o Peer professional opinion must be considered unless the opinion is seen as irrational
à known as the modified bolam principle
o Use of modified Bolam
- S5P
o Disclosure of information is the court and the patient
o “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” à this is in regard to the standard of care
o Decided that for information and risk, Bolam will no longer apply à Bolam does not
apply to information risks
o Thus, Rogers will be applied
o When professional opinion is decided in court, it is not seen as conclusive

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Class 10 – Breach of Duty – Reasonable Foreseeability and Calculus of Negligence

CLA s5B(1)
- (1) A person is not negligent in failing to take precautions against a risk of harm unless:
o (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to
have known), and
o (b) the risk was not insignificant, and
o (c) in the circumstances, a reasonable person in the person’s position would have
taken those precautions.
- Test of the legislation is slightly more demanding than the test of the common law (shirt) à
not fanciful or far fetched

[10.20] Foreseeability of Risk of Injury

- Duty – we are concerned with the foreseeability of the plaintiff.
Breach – we are concerned with the risk of injury and, for remoteness, to the kind of
damage/harm suffered by the plaintiff.
- For breach à much more concerned with the defendent
- “The concept of foreseeability operates in different ways at various stages in the proof of
negligence, ‘progressively declining from the general to the particular.” (p.393 SVW).

Wyong Shire Council v Shirt

- Facts
o Plaintiff [Shirt] was gravely injured after water skiing in a lake.
o The water was really shallow in some places, and that is why the Plaintiff was
injured
o The Defendant erected a 'deep water' sign close to where the Plaintiff was hurt,
which meant to serve as a border - beyond it, the water starts getting shallower.
- Reasonable foreseeability in breach has a very wide scope. It is not about the likelihood or
probability of the event - that is a different inquiry which comes later
o "Foreseeability of the risk of injury and the likelihood of that risk occurring are two
different things
- Foreseeability in this context means that the risk is not far-fetched or fanciful
o "Consequently, when we speak of a risk of injury as being 'foreseeable' we are not
making any statement as to the probability or improbability of its occurrence, save
that we are implicitly asserting that the risk is not one that is far-fetched or
fanciful”
- In this case, the risk was that the ambiguity of the sign might induce people to believe that
the water was deep and therefore safe for water skiing
- This is a foreseeable risk
- Quotes
o “But, as we have seen, the existence of a foreseeable risk of injury does not in itself
dispose of the question of breach of duty. The magnitude of the risk and its degree
of probability remain to be considered with other relevant factors.” (p395 SVW)
o “Although it is true to say that in many cases the greater the degree of probability of
the occurrence of the risk the more readily it will be perceived to be a risk, it
certainly does not follow that a risk which is unlikely to occur is not foreseeable.”
(p394 SVW)
o “It is sufficient for me to say that the jury’s conclusion that there was a foreseeable
risk of injury was not unreasonable and that it was a conclusion which was open on
the evidence. In saying this I am mindful that the foreseeability of the risk in the

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instant case is a question on which minds may well differ, as indeed they have done.
It is not a question which a judge is necessarily better equipped to answer than a
layman.” (per Mason J at p395 SVW)
CLA Impact
- Consider s5B(1)(b): “A person is not negligent in failing to take precautions against a risk of
harm unless: (b) the risk was not insignificant...”
- How, if at all, does this change the common law test of RF?
- Answer
o “The requirement in the legislation that the risk be ‘not insignificant’ was intended
to be a more stringent test than the common law position expressed in Shirt, but
not as stringent as ‘significant’ (Ipp Report). In some cases, it has been treated as
being little different from ‘not fanciful or far-fetched’. For example, in Drinkwater v
Howarth Basten JA stated ‘ s 5B is not concerned with how a risk came about. If the
P was clearly at risk, then it cannot be said that the risk was insignificant. It was a
clear risk.’ In Shaw v Thomas, it was said that ‘the requirement in s5B(1)(b) that the
risk be ‘not insignificant’ imposes a more demanding standard [than the Shirt test]
but in my view not by very much’.” (p396 SVW).
o Pursuant to the CLA, “a foreseeable risk is a risk of which the D either knew or ought
to have know.” Note the latter uses the objective standard of the reasonable
person.
o E.g. an employer’s knowledge of risk and a P’s vulnerability may be relevant (Paris v
Stepney Borough Council).
o Do not be misled by the s5B heading “duty” because s5B is actually about breach.

Doubleday v Kelly
- Facts
o A little girl was staying at her friend's house.
o She put on roller skates and then jumped on the trampoline, injuring herself.
o It was an early hour of the morning, and the children were unsupervised.
o A warning was given to the children the night before not to use the trampoline.
- Judgement
o “The actual events as they happened are not the circumstances to which
consideration of foreseeability of risk of injury is applied; what is to be considered is
foresight in more general terms of inquiry”
o In this case, the risk alleged was that if the child was unsupervised, she would use
the trampoline in a hazardous way and might injure herself.
o This risk was perfectly foreseeable.
o Measures taken by the defendant (warned the children not to use the trampoline)
fell below the required standard of care.
- Quotes
o “There was a foreseeable risk of injury if the respondent were to use the trampoline
at all without adult supervision. The fact that the respondent wore roller skates
when she got on the trampoline is a bizarre complexity but not an important one;
the risk that was foreseeable was that the child would not use the trampoline is a
competent way and would injure herself by falling off, and that risk was realised.”
(per Bryson JA at p395-6 SVW).
o “An obvious and effective means of preventing small children from using the
trampoline without supervision was to turn it over so that the jumping surface is on
the ground and to fold the legs up.” (Bryson JA, p396 SVW).

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[10.55] The Calculus of Negligence

- Once foreseeability of a “not insignificant” risk has been established, and it is apparent that
reasonableness requires some response from the D, the courts then ask a normative
question about what the reasonable person/D would or should have done.
- This determination is not a value-neutral exercise (p398 SVW)
- In making their determination, the courts take account of various factors which are referred
to as the “calculus of negligence” or the “Shirt calculus”.
- Calculus of Negligence – refers to a judgement in which the court considers a variety of
factors to determine whether a reasonable person would have taken precautions against a
risk of harm

CLA s5B(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):
o (a) the probability that the harm would occur if care were not taken,
o (b) the likely seriousness of the harm,
o (c) the burden of taking precautions to avoid the risk of harm,
o (d) the social utility of the activity that creates the risk of harm.
- “There is judicial authority that the NSW provision does not alter the common law “(RTA v
Refrigerated Roadways Pty Ltd [2009] NSWCA 263).
- But it is not clear whether the way the factors are set out in the CLA may have an
unintended impact on the weighting of particular matters.
- List is not exhaustive (“amongst other relevant things” s5B(2), CLA)
- There is no formula or rule for deciding the weight to be given to each consideration, which
will vary from case to case.
- The question is always what the reasonable person in the circumstances would do in
response
- ** In exam à don’t bring in other factors just use these 4
- ** there is no magical weighting à need to decipher
- ** “this is not a value neutral exercise” à start with this to explain that there is no
magical weighting

FOR EXAM
- Explain the CLA section
- Mention all 4 cases below and why they must be used
- Explain that there is no magical weighting à “this is not a value neutral exercise”
- Go into using the factors to figure out the answer

[10.95] Probability of Harm

- RTA v Dederer
o Facts
§ Plaintiff [Dederer] jumped off a bridge into the water below and gravely
injured himself.
§ Many others used to do it all the time, but none have been injured.
§ The river bed below was constantly changing due to nature.
§ There were signs on the bridge with pictograms indicating no diving.
§ The bridge was maintained by the Defendant [RTA] and had horizontal bars
(not allowed anymore) which enabled the Plaintiff to climb onto a platform
and jump
o There has a misidentification of the risk in the prior proceedings – The risk of injury
was not because of the bridge itself, it was because of jumping into shallow water.

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o Thus, the prior proceedings adjudged that there was great probability because a lot
of people used to jump off the bridge.
o However, probability is about probability of the injury - that means that the fact that
people jumped regularly and only one got injured meant that the risk was
improbable (or less probable at the least) if anything.
o Also, the misidentification of the risk caused the courts to ascribe greater control to
the RTA than it had – In fact it had no control over the Plaintiff jumping, or the water
levels underneath.
o Court found that the Probability of harm was low
o Quotes
§ “An obligation to exercise reasonable care must be contrasted with an
obligation to prevent harm occurring to others. The former, not the latter, is
the requirement of the law.” (per Gummow J, at p409 SVW).
§ “...the question of whether reasonable care was exercised is to be adjudged
prospectively and not be retrospectively asking whether the D’s actions
could have prevented the P’s injury. ...their Honours erred by focusing in
retrospect on the failure of the RTA to prevent Mr Dederer’s dive, as
opposed to asking what, in prospect, the exercise of reasonable care would
require in response to a foreseeable risk of injury.” (per Gummow J, p.411
SVW).
- FOR EXAM à must go back before the incident happened to see if its foreseeable that the
risk of harm could eventuate

[10.110] The Gravity of Likely Seriousness of the Harm

- Paris v Stepney Borough Council
o Facts
§ The Plaintiff [Paris] was a worker in the Defendant's [Stepney] garage.
§ The Plaintiff only had one eye.
§ In the course of his work, an accident caused damage to his good eye,
making him almost totally blind.
§ The Plaintiff sued the Defendant for negligence.
o Plaintiff argued The Defendant's failure to supply protective goggles constituted a
breach of his duty of care to owed to his employees
o The Court of Appeal erred in their decision that the standard of care is determined
by the risk of the event itself and without reference to the consequences, and the to
a particular individual.
o Rather, the duty of care is affected by the consequence to an individual, and not a
class of people.
o It follows that a higher standard of care will be owed to a particularly vulnerable
individual.
§ "it seems to me to follow that the known circumstance that a particular
workman is likely to suffer a graver injury than his fellows from the
happening of a given event is one which must be taken into consideration in
assessing the nature of the employer's obligation to that workman[1]."
o In this case, the Plaintiff was clearly more vulnerable because having one eye means
he can become totally blind way more easily. That means that a higher standard of
care is owed towards him than towards the rest of the workers because injury to
him will have greater consequences
o The Plaintiff wins.

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[10.125] Burden of Taking Precautions

- Woods v Multi-Sport Holdings
o Facts
§ The Plaintiff [Woods] was gravely injured during a game of indoor cricket
organised by the Defendant [Multi-Sport]
§ No one was wearing head protection
§ The Plaintiff argued that the Defendant breached the duty of care by failing
to provide protective eye-wear and by failing to erect a sign warning of the
possible dangers
o Upheld French DCJ's (Court of Appeal) finding that it was not reasonable to "expect
the respondent [Defendant] to provide players such as the appellant [Plaintiff] with
a form of protective headgear in circumstances where none had been designed for
the game, none was worn by players elsewhere, the rules of the game did not
provide for such headgear, and the manner in which the game was played meant
that there were considerations of convenience and safety that provided good
reasons why such headgear was not worn."
o This is an example of how the measure would be too much of a burden on the
Defendant
o In relation to the warning sign - the risk involved her was so obvious, and the
Plaintiff was so clearly aware of it, that a sign or a warning was not required from
the Defendant
o The Plaintiff fails

[10.140] Social Utility of the Risk-Creating Activity

- E v Australian Red Cross Society
o Facts
§ The Plaintiff [E, appellant] contracted AIDS after a blood transfusion.
§ The blood was supplied by the Defendant [Australian Red Cross,
respondent].
o Argument – the plaintiff argues that the Defendant should test donors before letting
them donate blood
o Judgement
§ Need to evaluate costs beyond just expenses and difficulty for the
Defendant in taking precautions - there could be a cost to society.
§ Evidence shows that testing people before would cause a 5% decrease in
blood donations (most of which would be eligible donors with untainted
blood).
§ Blood donations are indisputably of great social utility. Reducing the blood
supplies (thus damaging society) can only be justified insofar as the
probability and magnitude of the risk outweigh the loss the society suffers
by hospitals having less blood for patients.
• The question is whether "a prudent person in the position of those
respondents would have determined that the concern for
contamination outweighed the difficulties which would ensue from
reducing the blood supply."
§ Although the risk was of great magnitude here, the probability seems to be
very low.
§ The court decided that the risk does not outweigh the social utility, and
therefore the Defendant did have to do the testing and was not in breach of
its duty of care

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Example of Applying 4 Calculus Factors

- Romeo v Conservation Commission of NT
o Facts
§ Plaintiff was drinking and socialising around some cliffs which were under
management of the Defendant.
§ She mistakenly walked off the cliff and seriously injured herself.
§ The Plaintiff sued the Defendant for failing to prevent the risk by providing a
fence.
o Just because a risk is foreseeable, doesn't mean the defendant has to do anything.
§ "It is quite wrong to read past authority as requiring that any reasonably
foreseeable risk, however remote, must in every case be guarded against."
o Rather, whether measures need be taken, and what measures, is determined by
inquiring into the relevant circumstances.
§ Although a reasonably foreseeable risk may indeed give rise to a duty, it is
the inquiry as to the scope of that duty in the circumstances and the
response to the relevant risk by a reasonable person which dictates whether
the risk must be guarded against to conform to legal obligations."
o Factors in this case include:
§ No injury has ever occurred before, in over 100 years. This means that the
probability of harm is very very small. Low probability.
§ Must bear in mind the limited resources of the Defendant (as a public
authority especially). Spending money here to prevent very improbable
accidents would mean they have no money for something else, perhaps
more important.
o The danger should have been obvious to the Plaintiff - it was a cliff. Obvious risk.
o 'Natural' look of the site was a part of its attraction - fencing would diminish its value
to society
o Erecting a fence here and everywhere where there is a risk will be very costly as well
as undermine the aesthetic attraction of the site. High burden
o All in all, it was not reasonable to expect the Defendant to have done more. The
accident was very improbable, and the risk of the cliffs was so obvious that the
Defendant could have reasonably assumed no one would walk off them. In addition,
requiring a fence would mean erecting a face everywhere along the coast - this is
too much of a burden
o Its not about risk prevention, it’s about negating it and minimising it

- Shaw v Thomas [2010]- factors of

importance
- Cameron was normal 10-year-old
- Height was low
- Risk is defined as one of Cameron falling
and injuring himself à seen as one that is not
insignificant

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Class 11 – Causation

Approach for Negligence Problem Questions

- 1) the D must have owed the P a duty of care; (duty of care)
- 2) the duty must have been breached and; (breach of duty)
- 3) that breach must have caused damage to the P. (harm/loss)

Causation Introduction
- Causation à Causation is the essential link between breach and harm
- The plaintiff always bears the onus of proving, on the balance of probabilities, any fact
relevant to the issue of causation à Strong v Woolworths

Causation – The common law

- Causation in law is not the same as causation in science, medicine or philosophy
- “The law is concerned with ascribing, ex post factor, personal responsibility
- It does this in 2 steps
o Factual Causation – “but for” test
o Legal causation – whether the defendant should be held legally responsible for
his/her breach
- The CLA “made no real change to the common law” à It does not depart from the two tests
applied by the courts, which the Act calls ‘Factual Causation’ and ‘ Scope of Liability’
- CLA s5D(1)
o 1) A determination that negligence caused particular harm
o comprises the following elements:
§ a) that the negligence was a necessary condition of the occurrence of the
harm (factual causation) and (this part is “but for”)
§ B) that it is appropriate for the scope of the negligent person’s liability to
extend to the harm so caused (scope of liability).

Key Steps for the Causation part of Negligence Problem Questions

- 1. The “but for” test
o s5D(1)(a) and the common law
o if “but for” not satisfied + exceptional à s5D(2) ‘whether and why’ à Policy
focused
o If failure to warn (e.g. Rosenberg)
§ Risk eventuates and causes physical harm +
§ Had warning been given, risk would have been avoided +
§ If there is a failure to warn, go through s5D(3) à CLA restrictions on
admissibility of the plaintiffs evidence about what s/he would have done
§ If there were no facts on failure to warn à s5D(3) is not relevant
- 2. Is there any intervening act (Novus Actus Interveniens)
- 3. Test of Remoteness

The “But For” Test and Common-Sense Test (Factual Causation)

- “But for” test or factual causation
- Would the damage have occurred “but for” the action or omission of the D?
- If the damage would have occurred notwithstanding the negligent act or omission, the act or
omission is not a cause.
- Barnett v Chelsea & Kensington Hospital [1969]
o The widow failed to discharge her burden of proving causation.

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o Neild J: “the plaintiff...failed [because]...had all care been taken, still the deceased
must have died.”
o Even if the doctor would have treated the patient, he would of died anyway à thus
no causation
- Cf NZ ACC med injury causation case about the lawyer with a pre-existing heart condition
o First heart attack he got compensation, but not for the second one as he had a pre-
existing heart condition since the first one
- There are issues with the “but for” test. For example:
o 1) Multiple causes and exposure to risk
§ E.g. a person with lung cancer. The cancer may have been caused by
smoking and/or exposure to asbestos (Amaca)
§ An additional problem arises if the P worked for more than one employer
and was exposed at all workplaces e.g. Amaca v Ellis – the P was exposed to
asbestos fibres at two workplaces.
o 2) Multiple defendants
o 3) Supervening causes and loss of chance
§ E.g. an employee slips at work and injures his back. He receives medical
treatment for the injury. That treatment reveals that he had a pre-existing
back injury. Should his employer be liable for the supervening cause (the
pre-existing back injury) that would have shorted the employee’s ability to
work anyway? Or should the employer only be liable for the slip at work?
§ If someone has a pre-existing injury à becomes an issue as defendant can
blame the issue on the plaintiff

March v E&M Stramare Pty Ltd

- Prior to the CLA, March was the leading common law case on causation.
- It remains an important starting point for understanding causation.
- But March must now be read in conjunction with Adeels v Moubarak.
- Facts
o The Defendant [Stramare] parked a truck in the middle of the road whilst they were
unloading items into a shop. This was in the early hours of the mornings.
o The Plaintiff [March] was driving (speeding and drunk) and hit into their truck,
suffering physical damages.
o The Defendant alleges that it was the negligent driving of the Plaintiff which was the
cause of his harm, and not the Defendant's negligence in parking the truck.
- Judgement
o “but for” the truck parked in the road, this wouldn’t of happened
o Mason CJ "I do not accept the 'but for'... test ever was or now should become the
exclusive test of causation in negligence cases” à Neither is reasonable
foreseeability a test for causation.
§ The 'but for' test fails on two accounts - cases which involve multiple
causes and cases in which there is an intervening act.
o "The 'but for' test gives rise to a well-known difficulty in cases where there are two
or more acts or events which would each be sufficient to bring about the plaintiff's
injury...the test, applied as an exclusive criterion of causation, yields unacceptable
results and that the results which it yields must be tempered by the making of value
judgments and the infusion of policy considerations
§ "In similar fashion, the 'but for' test does not provide a satisfactory answer
in those cases in which a superseding cause, described as a novus actus
interveniens, is said to break the chain of causation.[3]"

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o In such cases, a value judgment of common sense is needed to supplement the but
for test"
o With regards to an intervening act - an act cannot be considered an intervening act
(which breaks causation) if that act was also the result of the original tortfeasor's
negligence.
§ "As a matter of both logic and common sense, it makes no sense to regard
the negligence of the plaintiff or a third party as a superseding cause or
novus actus interveniens when the defendant's wrongful conduct has
generated the very risk of injury resulting from the negligence of the
plaintiff or a third party and that injury occurs in the ordinary course of
things"
o In conclusion, the causation test is divided into two subcategories:
§ Fact: the 'but-for' test
§ Law: further public policy considerations and value judgements.
o McHugh J argues that the ‘but for’ test should be the “exclusive test for causation”
§ The “but for” test should be seen as the test of legal causation à Any other
rule limiting responsibility for damage caused by a wrongful act or omission
should be recognised as a policy-based rule concerned with remoteness of
damage and not causation

Amaca v Booth
- John Booth, a retired motor mechanic, suffers from malignant pleural
- mesothelioma.
- In July 2008, he sued Amaca in the Dust Diseases Tribunal in NSW
- Booth claimed exposure to asbestos fibres in breach of each appellant’s duty of care caused
his mesothelioma.
- In the HCA, the appellants led epidemiological evidence disputing link between exposure to
asbestos and risk of mesothelioma
- Ultimately they needed to apply s5D rather than completely rely on expert evidence
-

Amaca v Ellis
- Facts
oMr Cotton died of lung cancer. He was a smoker and it was well established that
smoking can cause lung cancer. He consumed between 15 and 20 cigarettes per day
for about 26 years. He was exposed to respirable asbestos fibres in the course of
two successive employments, first with the Engineering Water Supply of the State of
South Australia and later by Millennium. His exposure to asbestos when working for
the State was from asbestos cement pipes manufactured by Amaca.
- Judgement
o Court held the appropriate analysis was to consider whether the individual breach of
duty was, in itself, causative of the damage
o On the question of causation, the High Court held that it is insufficient to show that
the inhalation of asbestos fibres merely increased the risk (or 'may have' caused) the
cancer. Rather it is necessary to show that the asbestos exposure was actually a
cause of the lung cancer in the individual bringing the claim.
o That is a matter of fact which requires proof on the balance of probabilities that it
was more probable than not that the negligence of each defendant was a cause of,
in this case, Mr Cotton's cancer

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o It is clear from the judgment that an epidemiological conclusion that asbestos had a
23% chance of having been involved in the development of the lung cancer does not
'tip' the balance of probabilities

Adeels Palace v Moubarak and CLA s5D

- Facts
o An altercation between two women developed into a fight involving
a large number of people. A man was struck in the face, drawing blood. The man left
the premises and returned with a gun. He shot two patrons, one being his alleged
assailant, and the other an innocent bystander.
o The injured men, Mr Bou Najem and Mr Moubarak (the respondents), brought
proceedings against Adeels à Won and Adeels appealed to HCA
- Causation
o D s5D(2), CLA
§ In determining in an exceptional case, in accordance with established
principles, whether negligence that cannot be established as a necessary
condition of the occurrence of harm should be accepted as establishing
factual causation, the court is to consider (amongst other relevant things)
whether or not and why responsibility for the harm should be imposed on
the negligent party.
§ “Section 5D(2) makes provision for what it describes as “an exceptional
case”. But the Act does not expressly give content to the phrase “an
exceptional case.” All that is plain is that it is a case where negligence cannot
be established as a necessary condition of the harm; the ‘but for’ test of
causation is not met
§ In such a case the court is commanded “to consider (amongst other relevant
things) whether or not and why responsibility for the harm should be
imposed on the negligent party.” But beyond the statement that this is to be
done “in accordance with established principles”, the provision offers no
further guidance about how the task is to be performed. Whether, or when,
s5D(2) is engaged must depend, then, upon whether and to what extent
“established principles” countenance departure from the ‘but for’ test of
causation
o On the issue of factual causation, the Court of Appeal had concluded that, if security
personnel were deployed at the entrance of the premises, The gunman would not
have gained re-entry and would not have subsequently shot the respondents.
o The High Court disagreed, stating that no evidence had been led to support that
conclusion
o High Court considered it was unreasonable to find that security personnel could
prevent, or would have prevented, the re-entry of the gunman, let alone that their
presence acted as a deterrent to a person who was armed and hell-bent on revenge
o As the providing of security is was not necessary, even though this may have
prevented the shooting it is exceptional
- Judgement Quotes
o “The first point to make about the question of causation is that, in these cases, it is
governed by the CLA 2002 NSW). Section 5D(1) of that Act divides the determination
of whether negligence caused particular harm into two elements: factual causation
and scope of liability. Dividing the issue of causation in this way expresses the
relevant questions in a way that may differ from what was said by Mason CJ in
March to be the common law’s approach to causation.” (p503 SVW).

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o “In the present case, in contrast, the but for test of factual causation was not
established. It was not shown to be more probable than not that, but for the
absence of security personnel (whether at the door or even on the floor of the
restaurant), the shootings would not have taken place. That is, the absence of
security personnel at Adeels Palace on the night the plaintiffs were shot was not a
necessary condition of their being shot. Because the absence of security personnel
was not a necessary condition of the occurrence of harm to either plaintiff, s5D(1)
was not satisfied.”
o “The submission that the plaintiff’s injuries in these cases were caused by the failure
of Adeels Palace to take steps that might have made their occurrence less likely,
should be rejected.” (p505 SVW)
- 5D and expectational cases à does not say what an expectational case looks like à then
use Adells to try and argue whether you think on the facts that it’s an expectational case
à when the but for test fails due to multiple defendant or multiple circumstances you can
render it an expectational case à USE THE COMMON LAW AND THIS CASE
- Facts don’t have to be identical à just need multiple circumstances

Strong v Woolworths
- Facts
o Kathryn Strong (‘the plaintiff’), who was disabled and required the use of crutches,
was injured when the tip of her crutch came into contact with a chip lying on the
floor of an area occupied by Woolworths (‘the sidewalk area’)
o D he plaintiff appealed to the High Court after Woolworths won the first one
- Negligent act or omission
o The negligent act was failing to clean the chip by Woolworths and not having a
cleaning process in place
- Judgement
o The HCA applied the but for test
o The majority considered that the appeal ultimately turned on the correctness of the
Court of Appeal’s conclusion that "it was not open to infer that the chip had been on
the ground long enough for it to have been detected and removed by… an adequate
cleaning system".
o “But for” having a cleaning system, the chip would not have been on the floor
o Woolworths argued that it was necessary for the plaintiff to adduce evidence to
prove that it was more probable than not that the chip had remained on the floor
for a long enough time that, had Woolworths implemented a proper system of
cleaning, the chip would have been detected and removed
o The High Court rejected this argument and said that the plaintiff’s onus of proof
could be satisfied by considering the "probabilities in circumstances in which the
evidence did not establish when the chip was deposited". That is, the appellant could
satisfy the onus by showing that, on balance, the probabilities favoured a conclusion
that the chip had been on the floor for a greater length of time than the 15 or 20
minutes before the plaintiff fell.
o On that basis, a majority of the High Court allowed the appeal and reinstated the
plaintiff’s judgment obtained at first instance
- Quotes
o “Woolworths’ negligence lay in its failure to employ a system for the periodic
inspection and cleaning of the sidewalk sales area.” (p509 SVW)
o “The policy considerations that inform the judgment of whether legal responsibility
should attach to the defendant’s conduct are the subject of the discrete ‘scope of
liability’ inquiry. In a case such as the present, the scope of liability determination

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presents little difficulty. If the appellant can prove factual causation, it is not in
contention that it is appropriate that the scope of Woolworths’ liability extend to
the harm that she suffered.” (p507 SVW).
o “Section 5D(2) makes special provision for cases in which factual causation cannot
be established on a but for analysis. The provision permits a finding of causation in
exceptional cases, notwithstanding that the D’s negligence cannot be established
as a necessary condition of the occurrence of harm. ...Negligent conduct that
materially contributes to the P’s harm but which cannot be shown to have been a
necessary condition of its occurrence may, in accordance with established
principles, be accepted as establishing factual causation, subject to the normative
considerations to which s5D(2) requires attention to be directed.” (p508 SVW)

Rosenberg v Percival à s5D(3)

- Facts
o Nurse (plaintiff) had jaw pain and underwent corrective surgery after which she
suffered pain that couldn’t be cured à she hadn’t been warned of this risk
- s5D(3)
- But for
o Asking “but for” the fact that the patient hadn’t been warned, they would not have
undergone the surgery and pain
o Plaintiff loses the case as they weren’t able to prove she wouldn’t have undergone
the surgery à expert witnesses were used and her willingness to go under general
aesthetic and as she was a well-informed professional à this all played into account
- Subjective test
o Used to determine whether a person would of undertaken the surgery
o CLA and common law are consistent in this area à both have a subjective test and
thus are plaintiff friendly
o “Under the Australian common law, in determining whether a patient would have
undertaken surgery, if warned of a risk of harm involved in that surgery, a court asks
whether this patient would have undertaken the surgery. The test is a subjective
test. It is not decisive that a reasonable person would or would not have undertaken
the surgery. ...If the tribunal of fact...accepts the evidence of the patient as to what
he or she would have done, then...that is the end of the matter. ... Unlike other
common law jurisdictions, in this field, Australia has rejected the objective test of
causation in favour of a subjective test.”
o “If the court finds that the patient would have decided not to have the operation, it
concludes that he or she would not have had the operation. What the patient would
have decided and what the patient would have done are hypothetical questions.”
o As the law does not work retrospectively à it does not treat retrospective evidence
as admissible, however will consider notes prior to the surgery as admissible
o s5D(3)(b) à any statement made by the person after suffering the harm about what
he or she would have done is inadmissible except to the extent (if any) that the
statement is against his or her interest.
- Importance
o This is a subjective test à plaintiff friendly
o The evidence that the plaintiff gives must be at the time à any evidence afterwards
is not admissible

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Class 12 – Causation – Novus Actus Interveniens

Approach for problem Question - Causation

- 1. The “but for” test. [Class 12].
- 2. Is there an intervening act that broke the chain of causation? (Novus actus interveniens).
[Class 13]
o Was there a reasonably foreseeable event in a situation of risk created by D?
(Chapman, Mahony). [If so, is there a novus actus and will the D be liable?] OR
o Was there a voluntary human act? (Haber, Lothian, Caterson) [If so, is there a novus
actus and will the D be liable?]. OR
o Was there a causally independent event unconnected with the negligence? [If so, is
there a novus actus and will the D be liable?] (Haber).
- 3. Test of remoteness. [Class 14].
- ***** IN THE EXAM à IDENTIFY PRESICELY ABOUT WHAT THE NOVUS IS

Introduction to Novus Actus Interveniens

- A Defendant is only liable for loss/damage that s/he has caused.
- If the conduct of a 3rd party, the Plaintiff, or a natural event intervenes, after the
Defendants’ negligent act or omission, and it precipitates the damage, can we say, at law,
that the Defendant still ‘caused’ it à goes towards identifying the novus à can be the
plaintiff, third party or natural event
- Ask yourself: did the intervening cause or event break or “snap the chain of causation”
(Weld- Blundell v Stephens [1920] AC 956 at 986) so that the original Defendant is no longer
liable?
- If an event is determined to be a novus actus, the original D will not be held liable
- But, if the event is part of an unbroken causal chain, the first/original D will be liable for all
the harm flowing from the original breach

Chapman v Hearse – Intervention by a Third Party

- Facts
o The Appellant (Chapman) drove negligently and hit into another car, flipping his own
over and being knocked out of it into the road where he lay unconscious.
o Several cars stopped by to help the victims of this accident. One was Dr. Cherry, who
rushed towards the appellant.
o Whilst he was attending to the unconscious Appellant, Dr. Cherry was struck by the
Respondent (Hearse) who was also driving negligently.
o Dr Cherry died as a result
o Court decided on the case, and the Appellant owed money to Dr. Cherry's estate
- Judgement
o In this case, the subsequent act was a reasonably foreseeable consequence of the
first one - in the ordinary course of things, the very kind of thing likely to happen as
a result of the defendant’s negligence.
o It can be said that the first act exposed the plaintiff to negligence by third party, and
therefore the chain of causation is not broken.
o Establishes the idea that an intervening act does not cut off liability as long as the
intervening act was a reasonably foreseeable result of the original act
- Quotes

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o “[Chapman] insists that the fact that Hearse’s later act was wrongful operated to
break the chain of causation between his negligence and Dr Cherry’s death.” (p511
SVW) à chapman argument of novus
o “On principle, it is impossible to exclude from the realm of reasonable foresight
subsequent intervening acts merely on the ground that those acts, when examined,
are found to be wrongful.” (p511 SVW)
o “There can, we think, be no doubt that Dr Cherry’s presence in the roadway was,
immediately, the result of Chapman’s negligent driving and if any support for this
conclusion should be thought to be necessary ample can found in the analogous so-
called ‘rescue cases’....the risk of injury from passing traffic was real and substantial
and not, as would have been the case if the accident had happened in broad
daylight, remote and fanciful. ...we have no doubt that Chapman’s negligence must
be regarded as a cause of Dr Cherry’s death and since...some casualty of that
character was within the realm of reasonable foreseeability the judgment against
Chapman should stand.” (p511 SVW)

Haber v Walker
- Negligence of the defendant caused severe physical and mental injuries to plaintiff's
husband – Later on, the plaintiff's husband killed himself.
- Plaintiff argued that the negligence of the defendant caused the subsequent suicide and
thus her harm as a result – thus the novus was the suicide itself – the legal issue on these
facts is whether the suicide acted as a novus
- The court found that in this case, the suicide cannot be considered as a voluntary act since
it was a result of the negligence
o Thus, no intervening act and the defendant is liable.
o "the intervening occurrence, if it is to be sufficient to sever the connexion, must
ordinarily be either-
§ (a) human action that is properly to be regarded as voluntary, or
§ (b) a casually independent event the conjunction of which with the wrongful
act or omission is by ordinary standards so extremely unlikely as to be
termed a coincidence"

- Quotes
o The negligent driver argued in part that the suicide represented a novus actus, that
is, it was a voluntary act that severed the chain of causation between the death and
the driver’s negligence.” (p512 SVW)
o “The court held that since the deceased’s suicide was not voluntary there was no
novus actus...” (p513 SVW)
o “The High Court in Chapman lays down that ‘the term ‘reasonably foreseeable’ is
not, in itself, a test of causation’, but ‘marks the limits beyond which a wrongdoer
will not be held responsible for damage resulting from the wrongful act’. ...an
intervening negligent act of a third person will not break a chain of causation if the
original wrongdoer should have realized that a third person might so act.” (p512
SVW)
o “The intervening occurrence, if it is to be sufficient to sever the connexion, must
ordinarily be either – (a) human action that is properly to be regarded as voluntary,
OR (b) a causally independent event the conjunction of which with the wrongful act
or omission is by ordinary standards so extremely unlikely as to be termed a
coincidence.” (p513 SVW)

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Mahony v Kruschich
- Facts
o This case concerned a plaintiff who was injured by the negligence of the defendant.
He then sought medical assistance which was also negligent, and further aggravated
his injuries.
o The defendant sought to limit his damages by saying that the negligence of the
doctor constituted an intervening act.
o Argued that the medical treatment is the novus
- Judgement
o The court held that negligent medical treatment does not constitute an intervening
act.
o Further harm through bad medical treatment is a reasonably foreseeable
consequence of the original tortfeasor’s negligence and does not break the chain of
causation.
o However, the court also held that in cases where the treatment is 'inexcusably bad'
or really inappropriate, then it will constitute an intervening act.
- Quotes
o “When an injury is exacerbated by medical treatment, however, the exacerbation
may easily be regarded as a foreseeable consequence for which the first tortfeasor is
liable. Provided the P acts reasonably in seeking or accepting the treatment,
negligence in the administration of the treatment need not be regarded as a novus
actus which relieves the first tortfeasor of liability for the P’s subsequent condition.”
(p514 SVW).
o “However, in the ordinary case where efficient medical services are available to an
injured P, the original injury does not carry the risk of medical treatment or advice
that is ‘inexcusably bad’...’extravagant from the point of view of med practice’. In
such a case, it is proper to regard the exacerbation of a P’s condition as resulting
solely from the grossly negligent medical treatment or advice, and the fact that
the P acted reasonably in seeking and accepting the treatment or in following the
advice will not make the original tortfeasor liable for that exacerbation.” (p514
SVW).
- Does the subsequent negligence (e.g. medical malpractice) absolve the defendant from
liability even though the defendant caused accident that necessitated treatment?
o If the treatment is inexcusably bad, it will constitute as an intervening act
- Concept when you have an injury which is initially caused by someone else, then someone
gets treatment and the treatment is not sufficient – the inexcusable bad treatment will
constitute as an intervening act

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Class 13 – Causation – Remoteness and Loss of Chance

Approach for Problem Questions

- CAUSATION
o 1. The “but for” test. [Class 12]
o 2. Is there an intervening act that broke the chain of causation? (Novus actus
interveniens). [Class 13]
o 3. Test of remoteness – “reasonable foreseeability of damage” (Wagon Mound No
1). [Class 14]
§ Kind of damage must be foreseeable (Kavanagh, Nader)
§ Manner does not need to be foreseeable (Hughes, Jolley, Kavanah).
§ Eggshell rule applies (Stephenson, Nader, Kavanagh).
§ s5D(1)(b) CLA “appropriate” + s5D(4) CLA “whether or not and why”

Remoteness
- Remoteness involves “judgement” and is “heavily influenced by policy”
- It marks the boundary beyond which it would be unjust to hold the defendant liable
o E.g. s5D(4) CLA “for the purpose of determining scope of liability, the court should
consider… whether or not and why responsibility for harm should be imposed”
- The CLA refers to “scope of liability” which includes remoteness of damages issues
o S5D(1)(b) – “appropriate”
o S5d(4) – “whether or not and why”
- Reminder – problem Q shorthand for this
o s5D(1)(b) CLA “appropriate” + s5D(4) CLA “whether or not and why”
- This does not alter the common law, although it requires policy considerations to be more
clearly articulated
- The former test was in Polemis à direct consequences
- Now - the test of remoteness = foreseeability test/reasonable foreseeability of damage
(Wagon Mound)

Remoteness and Foreseeability

- Duty – we are concerned with the foreseeability of the plaintiff.
- Breach – we are concerned with the risk of injury.
- Remoteness - to the kind of damage/harm suffered by the plaintiff – no need to know the
precise kind of damage
- “The concept of foreseeability operates in different ways at various stages in the proof of
negligence, ‘progressively declining from the general to the particular.”

Wagon Mound No 1) – NEW TEST – Test of Remoteness – “Reasonable foreseeability of damage” (

- First step in causation – remoteness problem question
- Facts
o The Defendants [Overseas Tankship] negligently leaked oil into the water when it
was parked by the wharf of the Plaintiff [Morts Dock]
o The Plaintiff inquired with Caltex whether this oil is highly flammable still in the
water. He was informed that it would be very hard for the oil to catch alight.
o Based on this, he let his employees to do some work, which resulted in the oil
catching fire and damage to his wharf and a ship stationed there.
o The Plaintiff sought to recover damages for the negligence of the Defendants in
spilling the oil

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o Plaintiff argued that he fire and the damage to the wharf was a direct consequence
of the Defendant's negligence
- Judgement
o The test of direct consequence should not be the test for remoteness anymore "For
it does not seem consonant with current ideas of justice or morality that for an act
of negligence, however slight or venial, which results in some trivial foreseeable
damage the actor should be liable for all consequences however unforeseeable and
however grave, so long as they can be said to be 'direct.'"
o "It is a principle of civil liability...that a man must be considered to be responsible
for the probable consequences of his act. To demand more of him is too harsh a
rule."
o Foreseeability becomes the test for remoteness, and the Defendant could not
have reasonably foreseen that the oil would catch alight.
o Thus, the Defendant is not liable for the damages, because they are too remote
- Wagon Mound (No 2)
o Same facts of Wagon Mound No 1, except the Plaintiff is now the owner of the ship
parked at the wharf affected. The ship suffered damage as a result of the fire.
o Judgment
§ In the last case, the court determined that the fire was not foreseeable at
all, but in this case, there is evidence that the engineers of the Defendant
should have foreseen a risk, although an unlikely one.
§ So how is reasonable foreseeability defined - is an unlikely risk too remote?
§ Bolton v Stone, distinguished between cases where the possibility of the risk
was so far-fetched that no reasonable man would have done anything to
cases in which the risk is material.
§ This means that harm is reasonably foreseeable if it isn't "thought to be
physically impossible or because the possibility of its happening would have
been regarded as so fantastic or farfetched that no reasonable man would
have paid any attention to it impossible."
§ In this case, the risk was more than far-fetched, it should have been
foreseeable that measures should be taken against oil dripping into the
water in large quantities.

Kind of Damage foreseeable – Kavanagh, Nader

- 2nd step in problem question structure for causation – remoteness.
- The injury must be of a kind (or class or character) that is reasonably foreseeable.
- We don’t need to know the precise kind of damage à just the broad kind
- Kind of damage in Wagon Mound
o The kind of damage what the oil could potentially do if alight à fire à this was seen
as reasonably foreseeable
- Kind of damage in Kavanagh
o The kind of harm was the psychiatric injury à court said that the mental injury on
these facts was foreseeable
o “It was perfectly foreseeable that a severe and continuing shoulder injury would
affect the P’s capacity to attend to matters of personal hygiene...it was equally
foreseeable that it would put a strain on martial relations...That such strain might
lead to a severe breakdown of that marital relationship with extreme psychiatric
consequences for a vulnerable P was also foreseeable. The fact that the breakdown
occurred in consequence of a perhaps unforeseeable step taken by the respondent
(cutting her hair) or the perhaps unforeseeable reaction of her husband is irrelevant
in the light of cases such as Hughes and Nader, so long as psychiatric injury is itself

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regarded as a foreseeable consequence of the physical injury inflicted on the

respondent
- Stephenson
o Man was working, and his hand got cut without wearing safety gloves à does wash
it out but the slash gets infected and he gets very sick
o Kind of damage was the broad physical injury
o “The jury found that the cut was the cause of the P’s disability, but that such
disability was not of a kind reasonably foreseeable by the D.” (p555 SVW).
o “...the issue of foreseeability of ultimate consequences should not have been put to
the jury in the circumstances of this case.” (p556)

Manner does not need to be foreseeable (Hughes, Jolley)

- 3rd step in problem question structure for causation – remoteness.
- It does not matter if the manner in which the injury came about is unforeseeable
- Manner – just as long as there was some broad scope of injury possible à doesn’t matter
how specifically it came about à damage just needs to be actualised
- Hughes v Lord Advocate
o Post Office workers were working underground and left the manhole unattended
surrounded with kerosene lamps while on break
o Plaintiff Hughes, an 8-year-old boy, was playing at the unattended site and knocked
over a kerosene lamp, which resulted in a huge explosion that threw him down the
manhole
o He suffered severe burns and sued Defendant. Defendant argued it was not the
proximate cause of the injuries
o The Manner of the injury à was reasonably foreseeable as the lamps were near the
manhole, so they didn’t need to know precisely that the boy would get hurt they
just needed to know if this would be foreseeable
o Appeal was allowed
- Jolley
o Owner of abandon boat left it on the beach for 2 weeks with sign saying its
dangerous
o 2 boys came (14-year olds) to restore the boat and one had the boat fall on him and
became paraplegic
o Manner à it was seen as foreseeable
o it has been repeatedly said in cases about children that their ingenuity in finding
unexpected ways of doing mischief to themselves and others should never be
underestimated. For these reasons, I think that the judge’s broad description of the
risk as being that children ‘would meddle with the boat at the risk of some physical
injury’ was the correct one to adopt on the facts of this case. The actual injury fell
within that description and I would therefore allow the appeal.”
- Kavanagh
o Manner was seen as the psychiatric injury and was seen as reasonably foreseeable
o The respondent was entitled to recover damages

Eggshell Rule (Stephenson, Nader, Kavanagh)

- 4th step in problem question structure for causation – remoteness
- Refers to taking the victim as you find them à if the plaintiff already has a pre-existing
injury, the defendant can’t say they are not liable because the plaintiff was already
susceptible to the injury
- Nader

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o 10-year-old child hit his head on bus stop pole and got rare psychological condition
o Argued that illness was because parents stressed out
o “The rule of the “eggshell skull cases” should not be confined to the physical or
constitutional characteristics of the particular individual. When a defendant takes a
plaintiff as he finds him, he does not take him as a naked human being divorced from
his environment. Clearly enough taking the plaintiff as you find him involves taking
him in at least his social and earning capacity setting...I think that the defendant
must take the plaintiff with all his weaknesses, beliefs and reactions as well as his
capacities and attributes, physical, social and economic...Justice to the defendant is
fulfilled by the requirement that the plaintiff must belong to the class of persons
whom the defendant can reasonably foresee may be injured by his carelessness and
by the requirement of a causal connection between the negligence and the plaintiff’s
condition...”
- Kavanagh
o “the respondent’s psychiatric injuries were foreseeable, and the award of general
damages should have taken them into account….so long as psychiatric injury is itself
regarded as a foreseeable consequence of the physical injury inflicted on the
respondent...”
o “The principle that a tortfeasor takes the victim as he or she is found is not absolute
and unqualified. However, I see no reason why the appellant should not take the
respondent in the family and cultural setting that she lived. Equality before the law
puts a heavy onus on the person who would argue that the ‘unusual’ reaction of an
injured P should be disregarded because a minority religious or cultural situation
may not have been foreseeable.”

S5D(1)(b) CLA “appropriate” + s5D(4) CLA “whether or not nd why”

- Final step in problem question structure for causation – remoteness
- What is the approach to the test of remoteness in s5D(1)(b) and s5D(4) CLA?
o “appropriate”
o “whether or not and why”
- Normative question à make an argument and possibly use cases but it will be a value
judgement

Introduction to loss of Chance

- THIS IS OLD LAW DO NOT USE
- Loss of chance cases may be considered another category of “exceptional case” with regard
to causation. (p534 SVW)
- Causation is the essential link between breach of duty and harm.
- However, both the common law and the CLA recognise exceptional cases that fall outside.
- “Loss of chance may be considered another category of ‘exceptional case’ with regard to
causation.” (534)
o Loss of chance
o Lost commercial opportunity
o Loss of profits
o Some other economic benefit.
- Controversial in medical cases – loss of chance of a better medical outcome flowing from a
medical practitioner’s negligent delay in diagnosis or failure to warn.
- “A further way in which, in some circumstances, the difficulties of causation for a P are
alleviated is by treating the P’s loss as a loss of chance. In cases in which this approach is
permissible, it may allow evaluation of the P’s loss in terms of comparing the chances of

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suffering harm (given the breach which has occurred) against those that would have existed
(if the breach is hypothesised away)”. (Chappel v Hart)

- Anything that was previously thought as loss of chance will now be discussed in damages

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Class 14 – Defences

Introduction to Defences
- Forms of Defences
o 1. Contributory negligence
o 2. Voluntary assumption of risk
o 3. Statutory defence
§ Dangerous recreational activity
o 4. Illegality
§ Plaintiffs who are injured while in breach of the criminal law may be denied
redress in whole or in part
- Plaintiff who sues in negligence bears onus of proof
- Success is dependent upon whether the defendant can raise a defence
- Defence – ‘“a rule that prevents liability from arising even if all of the elements of the tort in
which the P sues are present or that reduces a successful P’s entitlement to damages”
- Defendant pleads and establishes defences
o Burden is balance of probabilities
- CLA has ‘Significantly amended the operation of the common law defences’ and ‘introduced
new statutory defences’

Voluntary Assumption of Risk

- Plaintiff who is aware of a risk, and still puts himself in the position where the risk might
eventuate, cannot recover damages if he suffers harm. This is called a voluntary assumption
of risk
- It is a complete defence, which means that if a voluntary assumption of risk is proved, a
plaintiff will recover nothing.
- There can only be a voluntary assumption of risk if:
o Knowledge - the plaintiff had knowledge of the risk.
o Voluntary action - the plaintiff voluntarily made the choice to undertake the risk. A
plaintiff who was constrained by circumstances from making a free choice will not
be regarded as acting voluntarily.
- For a non-obvious risk – must know and consent to specific risk
- CLA s5G
o (1) In determining liability for negligence, a person who suffers harm is presumed to
have been aware of the risk of harm if it was an obvious risk, unless the person
proves on the balance of probabilities that he or she was not aware of the risk.
o (2) For the purposes of this section, a person is aware of a risk of the person is aware
of the type or kind of risk, even if the person is not aware of the precise nature,
extent or manner of occurrence of the risk.”
- Examples of obvious and non-obvious risk
o Falling off a trampoline while wearing roller skates was held to be a non-obvious
risk, from the perspective of a 7-year-old child (Doubleday v Kelly)
o Diving off a bridge into water 9 metres below in circumstances where a ‘no diving’
sign is positioned nearby was held to be an obvious risk, from the perspective of a
14-year-old boy (Dederer)
- “Defence is rarely successful” but legislatures have made “efforts to strengthen the
defence”
- Motor vehicle accidents
o In NSW, the defence of voluntary assumption of risk is excluded altogether, save
where the P was injured while involved in motor vehicle racing (see Motor Accidents
Compensation Act 1999 (NSW)

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Dangerous Recreational Activity

- Use of an objective standard
- Dangerous recreational activity is recreational activity which involves a significant risk of
physical harm – to qualify as such an activity, an activity must:
- 1. Be a recreational activity, which includes engaging in: à 5K CLA à PAGE 715 FOR THE
EXAM
o (a) Any sport (whether organised or not) à
o (b) Any activity for pleasure, relaxation etc.
o (c) Any activity in a place used for the sport/pleasure etc.
- 2. Involve a significant risk, which is:
o "somewhere between a trivial risk and a risk likely to materialise.”
- S5F CLA
o An obvious risk is seen as
§ Obvious to a reasonable person in the position of that person
§ Risks that are patent or a matter of common knowledge
§ Can be obvious even though it has low probability of occurring
§ Can be obvious even if risk is not prominent, conspicuous or physically
observable.
- Mulligan v Coffs Harbour City Council
o Mulligan was swimming in Coffs Harbor when he performed a dive several times. On
the last occasion, he hit a sand dune and became a paraplegic.
o There were no signs warning of the uneven bed as a result of the sand dunes in the
area
o Did not find the risk as obvious
- S5L
o A Defendant is not liable in negligence for harm suffered by P as a result of the
materialisation of an obvious risk of a dangerous recreational activity engaged in by
the Plaintiff
o This section applies whether or not the P was aware of the risk.
- This is a complete defence
- Standard of care à only changes if young or old person on the facts
- s5L, s5K, s5F CLA = materialisation of “obvious risk” while engaging in dangerous
recreational activity (Fallas, Falvo, Vreman)
- CASES ON PAGE 706 & 707 of textbook

Contributory Negligence
- Contributory negligence occurs when the plaintiff's own negligence contributed to its own
injuries
- Whilst contributory negligence used to be a complete defence to negligence, it now only
reduces the damages recoverable by the plaintiff.
- Used to be a complete defence, however this has been changed by the law Reform
(Miscellaneous Provisions) Act (NSW) à now there is apportionment
- First Test
o Objective standard: how much care would the reasonable person in the P’s position
have taken and did the P take less care?
o No dispensation is made if the P was incapable of achieving the standard of the
reasonable person.
o However, P’s age may be considered. (Doubleday v Kelly; McHale v Watson; Smith v
Zhang).
o Smith v Zhang: P was 83 year old with limited sight Court said that even such Ps
should first look before trying to cross the road.

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- Standard applied to determine reasonable care

o Reasonable persons test
- CLA s5R
o Changes the common law standard of care
- Second Test
o Causal connection between injury and negligence (Froom)
§ The P’s contributory negligence will be irrelevant unless it is causally
related to his/her injury.
- Froom v Butcher
o Issue: Did not wearing a seatbelt amount to contributory negligence?
o Facts:
§ Mr. Froom was driving with his wife and daughter, none of whom were
wearing seatbelts
§ They were on the right side of the road when Butcher pulled out to pass and
struck them head on
§ The daughter was not injured, and Mrs. Froom's injuries would have
occurred with or without the seatbelt.
§ Mr. Froom injured his head and chest
§ However, they would not have been as badly injured if he had his seatbelt
on
§ He also broke his finger and still would have done so with the seatbelt on.
§ Seatbelts were not legally required at the time.
§ The respondents received full compensation at trial and Butcher appealed.
o Reasoning – Lord Denning
§ “It is rather what was the cause of the damage. ...The accident is caused by
the bad driving. The damage is caused in part by the bad driving of the D,
and in part by the failure of the P to wear a seat belt. If the P was to blame
in not wearing a seat belt, the damage is in part the result of his own fault.
He must bear some share in the responsibility for the damage.”
§ The casual link between the failure to take care and the loss is his failure to
take care while driving eventuated in the injury
§ MUST BE A CAUSEAL LINK (FROOM)
- Pennington v Norris
o Facts: a person (the Plaintiff) didn't look crossing road and was hit by a car driven by
the Defendant.
o Held: the Defendant was mostly responsible because he was driving really fast on a
misty and wet night at about the time everyone is leaving the nearby pubs – His
culpability or responsibility is much greater than the Plaintiff's – 80%-20%
apportionment.
o Apportionment Process (shown through pennington)
§ “wide discretion”
§ “What has to be done is to arrive at a just and equitable apportionment as
between the P and D of the responsibility for the damage.”
§ “comparison of culpability”
§ “Here, in our opinion, the negligence of the D was in high degree more
culpable, more gross, than that of the P.
- Apportionment Process
o The two overarching factors to consider in the apportionment process are:
§ 1) the relative departure of each party from the standard of the reasonable
person
§ 2) the relative importance of the parties’ acts

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§ ** THIS IS KNOWN AS A COMPARISON OF CULPABILITY

• 2nd Factor – casual potency à however the meaning of this is
unclear
• Prof Fleming said it must mean “that weight be given to the
comparative gravity of the risk that each party created...”
- S5S of the CLA
o A court may determine a reduction of 100% if the court thinks it just and equitable
to do so, with the result that the claim for damages is defeated à Very rare

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Class 15 – Breach of Statutory Duty

Introduction
- The tort of breach of statutory duty is not part of negligence
- Breach of statutory duty is a separate, independent tort
- Note that it is frequently argued alongside a negligence claim.
- A torts action for damages may be available for breach of a duty imposed by statute.
- Actions for breach of statutory duty have been common for duties involving workers’ safety,
but exceptional in other areas.
- E.g. the first successful modern action for breach of statutory duty was by an employee for
breach of a statutory duty to fence dangerous machinery: Groves v Wimborne [1898] 2 QB
402.

Elements
- There are 6 elements that must be satisfied before the action is complete.
- The elements are primarily based on statutory interpretation.
- Note that my organisation of the elements is different from the textbook (p731). That is
deliberate. My aim is to ensure that students do not miss any steps.
o 1. The statute must confer on the plaintiff a right to sue (rather than merely impose
a public law duty).
o 2. The plaintiff must be a member of class of persons protected by the statute.
o 3. The statute must be directed at preventing the kind of harm suffered by the
plaintiff.
o 4. The statutory duty must have been imposed on the defendant.
o 5. The statute must be breached – Strict liability imposed.
o 6. The breach must cause the P’s injury.

Step 1: THE STATUTE MUST CONFER ON THE PLAINTIFF A RIGHT TO SUE (RATHER THAN MERELY
IMPOSE A PUBLIC LAW DUTY).
- The requirement is satisfied if the statute expressly states that there is a private right to sue.
- However, in most instances the statute is silent. That makes our job as lawyers particularly
fun!
- What are the various presumptions that have developed by which the court may determine
that there is, or is not, a legislative intention to create a private action?
o 1. The statute contains no penalty for breach
o 2. Must be a penalty imposed by the statute
o 3. Must be some kind of adequate alternative remedy
o 4. A duty for the benefit of a limited class
- EXAMPLE – Cutler v Wandsworth Stadium Ltd [1949] 1 All ER 544
o H An operator of a licensed dog racing track (D) failed to provide a bookmaker (P)
space at the track to carry on business. The P argued that the D had breached the
Betting and Lotteries Act 1934 (UK). “The occupier of a track shall take such steps as
necessary to secure that... there is available space for bookmakers on the track...”
Substantial penalties were imposed by the Act.
o Was the intent of the legislature to provide a private right to sue?
§ Statute is talking about the bookmakers

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Step 2: THE PLAINTIFF MUST BE A MEMBER OF CLASS OF PERSONS PROTECTED BY THE STATUTE.
- Pask v Owen [1987] 2 Qd 421
- EXAMPLE: The defendants gave their 15-year-old son an airgun and ammunition. They knew
their son allowed the plaintiff, a 13-year-old school friend, to handle the gun and
ammunition. The plaintiff shot himself in the eye with the gun and argued the defendants
had breached the Firearms and Offensive Weapons Act 1979 (Qld) “A person shall not
knowingly supply any firearm or ammunition to or for the use of a prevented person.”
- Is the school friend a member of the class of persons protected by statute?
o

Step 3: THE STATUTE MUST BE DIRECTED AT PREVENTING THE KIND OF HARM SUFFERED BY THE
PLAINTIFF.
- Mummery v Irvings (1956) 98 CLR 99
- The P entered the D’s sawmill to buy timber. The D was operating a power-driven circular
saw. There was no guard attached to the saw. A piece of wood flew from the saw and hit the
P in the face causing him severe injuries. The P claimed that the D had breached the
Factories and Shops Act 1928 which stated, “every occupier of a factory shall provide guards
for all dangerous parts of the factory.”
- Is the statute directed at preventing the kind of harm suffered by the P?
o No the statutory language did not include prts that were indirectly dangerous

Step 4: THE STATUTORY DUTY MUST HAVE BEEN IMPOSED ON THE DEFENDANT
- Cubillo v Commonwealth (2000) 103 FCR 1.
- Aboriginal children removed from their families (Stolen Generation) sued the
Commonwealth in tort of breach of statutory duty. They argued the Commonwealth had
breached a statutory duty placed on government officials “personally and by virtue of their
office”.
- Was the statutory duty placed on the defendant by the statute?
o No duty

Step 5: HE STATUTE MUST BE BREACHED – STRICT LIABILITY IMPOSED.

- Galashiels Gas Co Ltd v O’Donnell [1949] AC 275
- The plaintiff’s husband died when a lift brake failed on a lift. She claimed a breach of the
Factories Act “Every hoist and or lift must be of good mechanical construction, sound
material, and adequate strength and properly maintained”.
- Was the plaintiff breached
o No there was not a breach
- Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1
- The plaintiff employed by builders was on a lower level of a building under construction.
There was an electricity blackout and the lights went out. After waiting in the darkness for
10 minutes the plaintiff and other workers moved to a higher level of the building. He
tripped over some steel mesh and was injured. Shortly afterwards the lights came back on.
He sued his employer for breach of statutory duty under the Construction Safety Regulations
1950 (NSW) which provided “Any person who carries out any construction work shall
...make provision to ensure and maintain lighting (natural or artificial) sufficient and suitable
for the illumination of workplaces”
- Was the statute breached
o Yes there was a breach

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Step 6: THE BREACH MUST CAUSE THE P’S INJURY.

- John Pfeiffer Ltd v Canny (1981) 36 ALR 466
- The plaintiff was injured when he was struck in the head by a steel pin fired from an
explosive-powered gun by a fellow employee. The employee was not a ‘qualified operator’
which was defined as an adult thoroughly trained in the correct use of such tools and their
dangers. The plaintiff argued a breach of the Scaffolding and Lifts Regulations (NSW) “No
person shall employ, instructor allow any person to use a tool in any work without first
ensuring by proper enquiry that such a person is a qualified operator and is not by reason of
any infirmity or disability or incapacity unfit to use such tool.”
- Did the breach cause the injury

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Class 16 – Concurrent Liability and Vicarious Liability

Introduction
- Concurrent liability cases are cases where:
o More than one person is liable in tort for the plaintiff’s damages
o It is not possible to attribute separately identifiable harm to each wrongdoer à all
defendants are liable to the plaintiff for the same damage
- Where concurrent liability exists, the plaintiff can choose to sue one or more o the
defendants in a single action or series of actions
- There are restrictions on the recovery of damages and costs in subsequent actions à Law
Reform (Miscellaneous Provisions) Act 1946 (NSW) s5(1)(a)(b)

Vicarious Liability
- Typical case of vicarious liability is an employer’s liability for a tort committed by an
employee within the course of employment
o E.g. employer’s liability for an employee’s tortious conduct during course of
employment
- There are three relationships in law sufficient to general vicarious liability
o Employer/employee – this is the focus
o Principle/agent
o Between partners
- How does this relate to personal responsibility?
o As an employer tends to reap the benefits of a business, they should hold a higher
liability and risk for this

Vicarious Liability Elements

- Is the relationship that of employer and employee?
- Was the wrongdoing in the course of employment? (or was the employee “on a frolic of
his/her own?” (Joel v Morison)
- Did the tort cause the injury?

(1) Is the Relationship that of Employer and Employee

- Control Test
o The control test refers to the test for deciding whether a person is an employee
o The greater the degree of control exercise over the person, the more likely that the
person is an employee
o The test states that a person is an employee if the employer can tell the person not
only what to do but how to do it
o This has been modified emphasising the right to exercise control where possible –
this would include working hours and use of equipment – now the test is the
employers right to control test
§ In exam “there is a modified control test which refers to the right of an
employer to control an employee”
- Other facts that a relevant in determining who is an employee
o Hours of work, the right to hire and fire, payment of wages, deductions in taxation,
provision of equipment and dress codes à all per Stevens v Brodribb Sawmillling
Co Pty Ltd

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Hollis v Vabu
- Facts
o The Plaintiff [Hollis] was a cyclist who got hit by an unidentified person, who was
working for the Defendant [Vabu] name on it.
o The status of such couriers in the Defendant's organisation was undefined - it is
unclear whether they were contractors or employees.
- It is important to distinguish whether the relationship between the courier and vabu is one
of employer/employee or employer/independent contractor because this will determine is
vicarious liability must be considered
o "It has long been accepted, as a general rule, that an employer is vicariously liable
for the tortious acts of an employee but that a principal is not liable for the tortious
acts of an independent contractor."
- Control Test
o The court moved away from the control test and towards a more comprehensive
analysis and balancing of several factors à sufficient relationship test
§ The job allocated to the worker involves a low level of skill.
§ The worker has little control over how he may do his job, the hours of his
job or the conditions.
§ The worker is presented to the general public as a part of the defendant's
organisation (for example, uniform).
§ It seems as though the Defendant should be deterred from carelessness
through the imposition vicarious liability.
§ The worker's payment scheme or holiday schemes are managed by the
Defendant.
§ The worker's equipment is provided and maintained by the Defendant.
§ The job performed by the worker is a main job of the Defendant and not
some supplementary side task.
- Factors for designating the courier as an employee
o Refusal to give holidays means that the workers are not independent.
o Presented to the public as workers of the Defendant - uniforms with the Defendant's
name
o Defendant superintended the workers' payments
o Workers didn't perform an 'added' or corollary part of the business of the Defendant
- they did the main purpose
- Factors against designating the courier as an employee
o Little control over how they perform and work hours
- Outcome
o Relationship was found to be employer and employee à Vabu was vicariously liable
for the consequences of the courier’s negligent performance of his work

Independent Contractors
- Principle is not vicariously liable for the wrongdoing of an independent contracts à Sweeny
v Boylan Nominees

(2) Was the Wrongdoing in the Course of Employment?

- The classic test
o The classic test for determining whether an employee was acting in the course of
employment is the Salmond test à An act is within the scope of employment if it is
authorised (expressed or implied), or sufficiently close to what is authorised, by the
defendant

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§ This means that a defendant may be vicariously liable even if the tortfeasor
acted in a way which was expressly forbidden by the defendant

New South Wales v Lepore

- Facts
o The Plaintiff [Lepore] was the victim of sexual harassment by a public-school teacher
[Tortfeasor].
o The Plaintiff seeks to recover damages from the Defendant [The State] because of
vicarious liability.
o Tried at the same time with two other cases of sexual assault in Queensland.
- Unauthorised acts – is the act authorised or not (p649)
o It is clear that is the wrongful act of an employee has been authorised by an
employer, the employer will be liable – however this is difficult when the act is
unauthorised
o Salmond Test à “an employer is liable even for unauthorised acts if there are so
connected with the authorised acts that they may be regarded as modes – although
improper modes of doing them, but any employer us not responsible if the
unauthorised and wrongful act is not so connected with the authorised act as to be
a mode of doing it, but is an independent act”
- Gleeson CJ Verdict
o “...in order to make the State of QLD vicariously liable for the teacher’s sexual
assaults, it would be necessary for the Ps to show that his responsibilities to female
pupils of the age of the Ps at the time, placed him in a position of such power and
intimacy that his conduct towards them could fairly be regarded as so closely
connected with his responsibilities as to be in the course of his employment. That
would involve making findings both as to his powers and responsibilities and as to
the nature of his conduct. It would not be enough that his position provided him
with the opportunity to gratify his sexual desires, and that he took advantage of that
opportunity. The appeals should be dismissed.”

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Class 17 – Concurrent Liability and Non-Delegable Duty

Introduction
- A non-delegable duty is a duty of care owed towards a group of people which cannot be
assigned to someone else
- This means that when one owes a non-delegable duty towards another, he has a duty not
only to take reasonable care himself, but ensure that others take reasonable care (since he
cannot discharge his duty by 'delegating' or transferring it to others)
- As a result, a defendant who owes a non-delegable duty will be liable for the wrongdoing of
others even if they are independent contractors
- In order for a defendant to owe a non-delegable duty, the following requirements must be
satisfied
o 1. Control/responsibility - the defendant must have had some control over the
plaintiff or the plaintiff's property.
o 2. Vulnerability - the defendant must have been unable to protect himself and was
forced to rely on the defendant to ensure that care had been taken
- In non-delegable duty à the liability is not direct (personal duty)

In what day does this duty impose a higher standard of care than other categories of duty
- “...depending upon the magnitude of the danger, the standard of ‘reasonable care’ may
involve a ‘degree of diligence so stringent as to amount practically to a guarantee of safety.
...The dangerousness of the substance or activity involved in such circumstances will
heighten the degree of care which is reasonable.” (Burnie Port Authority v General Jones)

Rylands v Fletcher Rule

- This rule imposed a strict liability on an occupier of land who brought onto (or kept on) the
land something dangerous which would cause serious risks to others if it should escape the
property
- This rule was rejected in Burnie Port Authority v General Jones

Burnie Port Authority v General Jones

- Facts
o The Plaintiff's [General Jones] property was stored in the building of the Defendant's
[Burnie] – vegetables were stored
o The Defendant contracted some independent contractors to carry some work, and
in their negligence, they caused a fire and burnt down the building – they supplied
highly flammable insulation called Isolite
o As a result, the Plaintiff's property was destroyed or damaged
- Two Legal Tests
o 1. Control/responsibility - the plaintiff must have had some control over the
defendant or the defendants's property
o 2. Vulnerability - the defendant must have been unable to protect himself and was
forced to rely on the defendant to ensure that care had been taken
- The Full Court of Tasmania had held that the Port Authority was liable to General Jones
under the Rylands v Fletcher principle.
- Under this principle, a defendant is strictly liable for the escape of a dangerous substance
without the need to prove fault, if it brings on to land, collects or keeps there anything that
“is likely to do mischief” if it escapes
- Mason CJ, Deane, Dawson, Toohey, Gaudron JJ held that there are no special liability rules
applying to fire and that the principle in Rylands v Fletcher should no longer be considered a
separate basis of liability...

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- Outcome – there was a non-delegable duty on the Burnie Port Authority

CLA s5Q
- Liability is to be determined “as if the liability were the vicarious liability of the defendant for
the negligence of the person in connection with the performance of the work or task.”
- This means that a defendant subject to a non-delegable duty can be liable for independent
contractors delegated to carry out that duty subject to the “course of employment”
requirement

New South Wales v Lepore

- Facts
o Three plaintiffs were sexually abused by teachers during school hours and on school
grounds
o The first was accused of misbehaviour by his teacher and sent to a storeroom. His
teacher followed him into the storeroom and made the student remove his clothes
where he was smacked and indecently assaulted. The teacher was convicted of
assault but not sexual assault
o The second and third pupils were sexually assaulted by a teacher over a period of
three years. The teacher was subsequently tried and convicted for the sexual
assaults. All three children sued the teacher, the Education Authority and the State
of Queensland/New South Wales
o One of their arguments was that the authority and the State owed a non- delegable
duty which they breached.
- Tests
o “The proposition that, because a school authority’s duty of care to a pupil is non-
delegable, the authority is liable for any injury, accidental or intentional, inflicted at
school upon a pupil by a teacher, is too broad, and the responsibility with which it
fixes school authorities is too demanding.” (Gleeson CJ, Lepore, p671 SVW)
o A non-delegable duty is not a duty to "keep workers free from all harm", but to take
reasonable care.
o The majority in Lepore held that a non-delegable duty does not extend to
intentional wrongdoing.

For a Problem Question

- Is the Duty non-delegable?
o A special relationship is characterised by:
§ 1. The defendant has control and responsibility for safety of other (e.g.
Burnie)
§ Special vulnerability and dependence of the plaintiff (e.g. Burnie, Lepore)

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Class 18 – Damages

*** READ THE SUB QUESTION REALLY CAREFULLY

CLA s3B – “Civil Liability Excluded from Act”

- Use 3B in the exam
o Do we use the common law or CLA for this part of the exam?
o “To the extent that the provisions of s 3B purport to exclude the ‘whole Act’, the
section cannot be read literally as it would thereby exclude its own operation.”
(Villa, Annotated CLA).
o “is there a motor vehicle accident (No or Yes)
§ If yes – use the provision provided
§ If no – explain that it is not excluded from CLA

Damages Introduction
- Damages are a monetary remedy arising from a civil wrong – compensation
- Do not confuse with damage (harm, injury)
- Compensation is the reparation of a civil wrong by the provision of a sum of money awarded
by a court.
- “A plaintiff who has been injured by the negligence of the defendant should be awarded
such a sum of money as will, as nearly as possible, put him in the position as if he had not
sustained injuries.” - Todorovic v Waller à THIS IS USED IN THE EXAM AT BEGINNING OF
DAMAGES

Types of Damage
- 4 types of damages that may be awarded in a tort action
o Nominal
§ Small sums awarded in recognition of the plaintiff’s rights
§ Cannot be awarded in negligence because gist of action
o Compensatory
o Aggravated
o Exemplary/punitive
- Exemplary and aggravated damages are excluded where the CLA applies e.g. motor vehicle
accidents, s81A Motor Accidents Act 1988 NSW

Economic Damage

1. Past Loss of earnings = ‘Actual’ Loss

- Assesses an injured plaintiffs’ economic loss “by reference to the actual loss of wages which
occurs up to the time of trial and which can be more of less precisely ascertained and then,
having regard to the plaintiffs proved condition at the time of trial, to attempt some
assessment of future loss Graham v Baker 1961
- In all cases it is necessary to determine what capacity has been lost and to then determine the
economic consequences that flow from that loss

2. Future Loss of Earnings

- Assumptions need to be made concerning the injured person’s life had the tort not been
committed (for purposes of comparison) as well as in relation to his/her future post-tort
- This is because of the ‘once and for all’ rule and is fraught with difficulty
- Once and for all – single lump sum payment intended to compensate for all past and future
losses relating to the action

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- Murphy v Stone Wallwork

o “The assessment of damages for the future is necessarily compounded of prophecy
and calculation. The court must do the best it can to reach what seems to be the
right figure on a reasonable balance of the probabilities, avoiding undue optimism
and undue pessimism
- Mundy
o “assess the unassessable and judge the unjudgable”
- Children’s cases are notoriously difficult to assess as there is no work history nor educational
attainment to guide the courts on quantum
o Evidence is usually parental occupations and education and tables of average weekly
workings
o University students can also be very tricky
- CLA s13(1) – ‘Most likely’ future circumstances x remanning working years
o s13(1) A court cannot make an award of damages for future economic loss unless
the claimant first satisfies the court that the assumptions about future earning
capacity or other events on which the award is to be based accord with the
claimant’s most likely future circumstances but for the injury.”
- Minus Outgoings – Wynn v NSW Insurance Ministerial Corp
o Mortgage for example
o Facts
§ Plaintiff injured in a car accident by the Defendant and unable to work
§ Defendant was claiming a discount because a previous injury sustained
would have meant that the Plaintiff might have retired early anyway.
o Vicissitudes (changes) of life
§ Court Held that "It is necessary to say something as to contingencies or
'vicissitudes'. Calculation of future economic loss must take account of the
various possibilities which might otherwise have affected earning capacity."
§ Positive considerations which might have resulted in advancement and
increased earnings are also to be considered."
§ "Finally, contingencies are to be considered in terms of their likely impact on
the earning capacity of the person who has been injured, not by reference
to the workforce generally...Even so, the practice in New South Wales is to
proceed on the basis that a 15% discount is generally appropriate, subject
to adjustment up or down to take account of the plaintiff's particular
circumstances."
- Minus Lost years ‘cost of living’
o The years where the person couldn’t do various things (primarily related to work)
because of the injury
o Look at the detail around the cost of living – food, cars, cost of living etc.
- Plus or minus contingencies
o Promotion, unemployment, marriage, maternity leave, sickness, industrial action
- CLA s12 – no more than 3x average NSW wage (see subsection 2)

3. Medical Expenses = ‘reasonable’ = cost v benefit – Sharman v Evans

- Medical expenses must be “reasonable” (cost v benefit)
o E.g. Hospital v In home car
- Sharman v Evans
o Facts
§ Plaintiff [Evans] was injured in a car accident by the Defendant [Sharman].
§ She became fully incapacitated after the accident.

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§ At the time of the accident, she was 20 years old and had an extremely
bright future ahead of her
§ She was awarded $300,000 and it decreased to $270,547

4. Is there a gratuitous carer

- CLA s15(1) + CLA s15(2) + CLA s15(3) + CLA s15(4)
- CLA s15(1)
o Services provided by another person without cost
o E.g. from 2015 exam – care services provided by plaintiff’s father free of charge
- CLA s15(2)
o Reasonable need à solely because of injury and would not be provided ‘but for’ the
injury
- CLA s15(3)
o Care must be provided for more than 6 hours per week and more than 6 months
- CLA s15(4)
o Van Gervan – not less than 40 hours per week at market rate
o “s15(4) if the services are provided or are to be provided for not less than 40 hours
per week, the amount of damages that may be awarded for gratuitous attendant
care must not exceed:
§ (a) the amount per week comprising the amount estimated by the
Australian Statistician as the average weekly total earnings of all employees
in New South Wales for:........”
o This is a limitation (monetary cap) on damages
- Key case – Griffiths v Kerkemeyer
o

5. Discount rate on all future economic damages

- “the 5th step is that a discount rate will be applied under CLA s14 and this will be 5%
- CLA s14 – 5% discount rate
o (1) if an award of damages is to include any component, assessed as a lump sum, for
future economic loss of any kind, the present value of that future economic loss is to
be determined by adopting the prescribed discount rate
o (2) The prescribed discount rate is
§ A discount rate of the percentage presided by the regulations or
§ If no percentage is prescribed, a discount rate of 5%
o (3) Except as provided by this section, nothing in this section affects any other law
relating to the discounting of sums awarded as damages

Non-Economic
- There are three ‘heads; of non-economic loss
o Pain and suffering
o Loss of amenities
o Loss of expectations of life
- Skelton v Collins – leading authority on allowable items in the determination of general
damages
o Pain and suffering – Skelton

CLA s16
- Attempts to provide a systematic method for the determination of damages for non-
economic loss.

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- Sets out a maximum amount that may be awarded for non-economic loss.
- The maximum amount is adjusted in accordance with changes in the average weekly total
earnings for all employees in NSW (s17 CLA) - $635,000 for 2018
- Imposes a threshold (15%) precluding recovery in cases of minor injury.
- Provides a scale limiting the recovery of damages for non-economic loss for less serious
injuries
- Provides a table and step-by-step approach.

CLA s17A
- Enables a court to have regard to other decisions of the same or other courts to determine
the appropriate award

CLA s16 (15% of most extreme cases + $635,000 cap)

- S16 Determination of damages for non-economic loss
o (1) No damages may be awarded for non-economic loss unless the severity of the
non-economic loss is at least 15% of a most extreme case
o (2) The maximum amount of damages that may be awarded for non- economic loss
is $350,000, but the maximum amount is to be awarded only in a most extreme
case. (But remember that this changes each year pursuant to s17).
o (3) If the severity of the non-economic loss is equal to or greater than 15% of a most
extreme case, the damages for non-economic loss are to be determined in
accordance with the following Table.... [see the table]
o (4) An amount determined in accordance with subsection (3) is to be rounded to the
nearest $500...
- “The following are the steps required in the assessment of non-economic loss in accordance
with this section:
o Step 1: Determine the severity of the claimant’s non-economic loss as a proportion
of a most extreme case. The proportion should be expressed as a percentage.
o Step 2: Confirm the maximum amount that may be awarded under this section for
non-economic loss in a most extreme case. This amount is indexed each year under
section 17. ($635,000 for 2018)
o Step 3: Use the Table to determine the percentage of the maximum amount payable
in respect of the claim. The amount payable under this section for non-economic
loss is then determined by multiplying the maximum amount that may be awarded
in a most extreme case by the percentage set out in the Table.
- “a most extreme case” (s16)
o Limits the recovery of damages for non-economic loss
o Note use of “a”, not “the”, most extreme case
- In Southgate v Waterford (1990) 21 NSWLR 427, the Court noted that opinions of what may
constitute a most extreme case will vary
o Quadriplegia would “clearly” fall into that class
o Total blindness accompanied by loss of limbs was a most extreme case – Mason v
Demasi
o A brain damaged plaintiff retaining a restricted ability to walk but with an
exceptionally limited capacity for an independent life would also qualify – Quintano
v BW Rose Pty Ltd
- “...severity of the non-economic loss...” (s16)
- ** if most extreme à $635,000
- ** if its less than 15% of a most extreme case à fail and no damages
“Each case will necessarily depend on its own facts – Southgate v Waterford

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- “A wide measure of discretion has always existed in fixing damages for non-economic loss.
All that this legislation does is to require that the damages under this head be fixed in
harmony with the fact that Parliament has determined that a maximum will be laid down,
varied from time to time and reserved for ‘a most extreme case.” – Southgate

1. Pain and Suffering – Skelton v Collins

- Skelton – Facts
o The plaintiff went into a coma due to the defendant's negligence and expected to
die within 6 months
o The court was determining whether the fact he is unconscious and unaware of his
condition should mean he should get less non-economic damages
o The court held that yes, a person who is aware of his condition and has to live with it
suffers more than the unconscious person and therefore will get receives more
compensation for pain and suffering etc, loss of amenities etc.
o However, as he “couldn’t feeling the pain and suffering” he was not awarded
damages on under this section ****************
- Damages of pain and suffering are awarded t the plaintiff for the subjective injury
- ** realisation of the loss à does the person realise what’s going on and how much are they
really impacted
- Woolworths v Lawlor
o The respondent fell due to a malfunction of a moving walkway
o In the trail, liability was admitted but Woolworths appealed the non-economic loss
as it was 30% of the extreme case à Spinal injury à appeal did not succeed

2. Loss of Amenities – Skelton

- Described by Windeyer J (in Teubner v Humble (1963) 108 CLR 491) as the term “commonly
and conveniently (but not, I think) very happily” given to the “deprivation of the ability to
participate in normal activities and thus to enjoy life to the full and to take advantage of the
opportunities that otherwise it might offer.”
- It is also known as loss of enjoyment of life.
- In assessing damages for loss of amenities of life, the court assesses both the conscious
awareness of the loss as well as the objective deprivation of the opportunity to enjoy the
normal experiences and amenities of life.
- Thus, subj/obj.
- However, the objective element should be given minimal weight so that in the case of an
unconscious P, only a modest sum ought to be awarded for loss of amenities – Skelton
- CLA s16

3. Loss of Expectation of life

- Described as “consolation for the mental anguish suffered during the shortened lifespan or
as a means by which the P may attempt to obtain fulfilment in lieu of that which has been
denied
- At common law, a conventional sum was generally awarded for this loss – Skelton v Collins
- CLA s16

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Class 19 – Torts (Law) Revision

Impecunious Defendants
- The judgment creditor may get the judgment satisfied if the judgment debtor has money
and/or assets
- If so, the usual procedure is to seal the judgment and demand payment
- Ultimately, the creditor may enforce judgment via filing a bankruptcy petition
- “You can’t get blood out of a stone.”
- “Deep pockets”.

Redding v Manly Life Saving

- Facts
o P (Newbie Louise Redding) settled with first D (Manly Life Saving) – So, the case is
about the P and second D (Scott White)
o Very recent NSW Case à
o Newbie Redding, now 20, sued the surf club and the batsman, Scott White, for
negligence after her injury rendered her no longer able to compete.
o Her case against the club was settled out of court; however, the matter against Mr
White proceeded
o She had been helping out with a fundraising barbecue at the surf club and was
texting her parents in the function room where the cricket game was being played
between several young male club members.
o The court heard she was hit in the left eye by a particularly hard tennis ball, which
left her with a detached retina and the inability to determine depth or detail.
o As a result, Ms Redding had to quit competing in gymnastics and surf lifesaving.
o She has also been unable to pursue her desired career as a police or Special Forces
helicopter pilot as a result of the injury.
- Issues
o s5B – whether there was failure to take reasonable precautions
o Causation
o Contributory negligence
o Damages
- Outcome
o B Judgment for the plaintiff (injured when she was 16) against the second defendant
(Scott White) - $692,806.30
- Reasoning
o S5B - Breach
§ Starts from para 59
§ The risk of harm in the case was the risk that the ball struck by a batter
would hit and injure the plaintiff.” (para 62)
§ “This risk was foreseeable…”
§ Note how the judge structures the answer step by step and uses mini-
conclusions for each step (see paras 62-78)
§ Notice how the judge identifies the crucial issue – burden of taking
precautions and focuses on that issue (68-78)
§ “I find that the risk was not insignificant and that s 5B(1)(b) of the Act is
satisfied.” (para 64)
§ “I find that the burden of taking any precautions pleaded was minimal – s
5B(2)(c).” (para 68)

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§ “I find that the reasonable person in the position of the second defendant
would have taken the precaution of temporarily pausing the game while the
plaintiff was close to the action…” (para 76).
o Causation
§ B See from para 79 –
§ “I find that the negligence of the second defendant was a necessary
condition of the occurrence of the harm. Further, I find that it is appropriate
for the scope of the second defendant’s liability to extend to the harm so
caused. The second defendant was the master of the situation. It was his
failure to take reasonable precautions which caused the plaintiff’s injury.”
(para 84-5).
o Inherent Risk
§ E.g. dumped by wave while body surfing
§ On the facts, there was not an inherent risk (see paras 91 - ).
o Obvious Risk
§ (See paras 93 - )
§ On the facts, there was not an obvious risk within the meaning of the Act.
o Contributory Negligence
§ (see from para 98 - )
§ “I find that there was no contributory negligence on the part of the
plaintiff.” (para 101)
o Damages
§ Non-economic loss (from para 147 - )
§ “Damages for non-economic loss are governed by s 16 of the Act. Those
damages have to be assessed as a percentage of ‘a most extreme case’…”
(para 147).
§ “The D submitted that the damages should be assessed at 30% of a most
extreme case. I reject this submission…” (para 148).
§ “The plaintiff submitted that non-economic loss should be assessed at 70%
of a most extreme case. …that is far too high.” (para 149).
§ “…the objective assessment of Dr Steiner was that she has a 24%
impairment of her visual system. This percentage does not translate to a
percentage of a most extreme case, but it is a matter I take into account.”
(para 150).
§ “That [not being an elite gymnast] has been a great disappointment to the
plaintiff and that disappointment is ongoing.” (para 153.
§ Disappointment (pain and suffering/non-economic) vs the income she
would have earned but for the injury (future loss of earnings).
§ “Taking all those matters into account I assess the plaintiff at 55% of a most
extreme case.” (para 154).
§ Future out of pocket expenses - “Future loss of earning capacity is difficult
to assess in the present case. …The court has to do the best it can to
provide compensation which is adequate to the plaintiff and fair to the
defendant, based on the limited evidence available.” (para 170).
§

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Class 20 – Theory for Essay

- Should fault be a core principle in torts? Should a no-fault approach be used to address
‘tortious’ wrongs and injuries?
- What can the theoretical and empirical data tell us about the utility of ‘fault’, ‘causation’,
and plaintiffs’ and defendants’ experiences of torts and its alternatives
- Should AU adopt an administrative no-fault scheme

Defendants perspective
- Is it fair to impose tort liability on those whose momentary carelessness happened to result
in massive losses for others?
- Is causation an effective fair basis for differential liability

Plaintiffs perspective
- How fair is torts for inured people
- Does torts fulfil its primary purpose to provide compensation to injured people

Society Perspective
- Is torts a ‘good’ (fair and just) system for society

Causation and Burden of Injuries

Theory
- ‘Fault’ – responsibility for harm
- Cause’ – have an effect
- Causation occupies a prominent role in several theories about tort liability
- It is far and just to hold the wrongdoer/tortfeasor accountable when s/he ‘caused the harm
o It was the tortfeasors ‘fault’
o The tortfeasor must be responsible for the harm if s/he caused it

Law
- Tort law requires the injured plaintiff to prove that someone else caused the harm
- In the absence of fault, no compensation will be available

Empirical Evidence
- Greatest burden of injuries is around falling but through the torts system we are not able to
do anything
- Medical error is also a huge burden of injuries

- NZ Data
o 4th highest cause of death is ‘complications of medical and surgical car’

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The Search for fault may obscure the real causes

- In medical error/negligence cases, it may not always be possible to identify an individual
health practitioner as the sole cause’ of the patient’s injury
- A combination of individual and system factors may have ‘caused’ the injury
o E.g. patient’s hospital-acquired infections and clinicians failure to wash their hands
§ Clinicians and/or environmental/systems (placement of hand washing
facilities)
o E.g. After a collision between two cars at an intersection, a lawyer may focus on the
drivers culpability, “who beat the red light”?, and ignore system/environmental
factors such as whether the luminosity of the globes was adequate
o “The obsession of the common law with fault and the search for a culpable
scapegoat often obscures the real cause of an accident” (Luntz et al, Torts: Cases
and Commentary, 2017, at 48)

Proving Causation

Multiple causes
- Medical cases often pose difficult issues of causation
- E.g. Asbestos exposure causes where the epidemiological evidence about causation is
important
- Amaca v Ellis
o HC considered the problem of how to assess causation when there are multiple
factors present that are known to cause the type of injury suffered
o Demonstrates that proving that something could have caused the plaintiffs injury is
not the same as proving that it did cause the injury

Multiple Defendants
- “Tort law is an exercise in applied ethics” (Peter Cane p5 SVW)
- Are there any questions before we move to an example of a philosophical critique of fault
and causation
- How should the legal system respond to injury

Fate, Hurt and Fortune

- Crash between Fate and Hurt and Hurt was injured because Fact was behind Hurt and got
distracted by a shoe sale
- However, even though fortune also got distracted, he was in front of Hurt so couldn’t crash
into him
- Outcome in the Jurisdiction with Torts
o Hurt
§ Severely injured
§ If his lawsuit is successful, he may receive $5m in compensation
§ But he will receive nothing if it is not successful
o Fate
§ May be required to pay Hurt $5m in compensation
§ May bankrupt her
§ Saved $50 on a pair of shoes
o Fortune
§ Got off “Scott free”

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- The outcome in a Jurisdiction with an Administrative No-Fault Compensation Scheme

o All drivers
§ Pay an annual contribution to the scheme
o Fate
§ Has been paying an annual contribution to the scheme
o Fortune
§ Has been paying an annual contribution to the scheme
o Hurt
§ Will not instruct a lawyer
- Discussion Question
o What did Fate Deserve – given the scale and character of the wrongdoing – a
moment of carelessness – is the penalty and outcome proportionate?
o Should fault or no-fault be the core principle for addressing injuries and accidents

Policy Questions for Causation that are in the CLA

- Given the limitations of the legal tests for causation, is it essential that the CLA incorporates
sections which require consideration or normative and policy questions?
- Remoteness provisions
o S5(D)(4) – “whether or not and why”
o S5(D)(1)(b) – “appropriate”
- Whether remoteness is there because the previous two tests are problematic and don’t
work well – will be in the essay and “use data”

Plaintiffs Perspective

Do Injured People prefer Fault or No-Fault

- Theory
o According to Prof Waldron, if drivers were able to choose whether to adopt a torts
or no-fault scheme, the answer would be obvious” because:
§ Drivers face a non-trivial chance of complete ruin in the liability lottery
compared to a no-fault scheme
o Choose the risk whose wort outcome is the best of the worst outcomes of all the riss
available in the choice set
- Empirical Evidence
o Survey research revealed that both injured people and the general public believed
that compensation ought to be divorced from fault
- Empirical Evidence about injured patients and practitioners
o 0% of injured patients report feeling satisfied with the process and outcome of
medical malpractice litigation
o 0% of medical practitioners report feeling satisfied with the process and outcome of
medical malpractice litigation

What do Injured People Want

- Theory
o According to conventional wisdom, inured people want to sue for large gains
- Evidence
o How may NZ injured patients complain?
§ NZ people can’t sue but can complain to the health and disability
commissioner and if seen as truthful it can be escalated
§ 1 in 200 complain
o So, what do they actually want

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§ It’s not all about the money

§ The primarily want an apology
o Example
§ 14-year-old research participate patient with sever anaphylaxis and was
given an overdose at the hospital
§ The patient received a small amount of compensation
§ However
• “I was14 at the time… I never got the apology... ive never seen that
collection of those doctors and nurses ever again and that upsets
me… there has just been little to no closure”

Alternatives to Torts
- ACC
o
- Waldron’s Defence of No-Fault
o
- Administrative Compensation Schemes in Torts Jurisdictions – USA
o All of these are no-fault
§ Workers compensation
§ Black Lung Benefits Program
§ September 11 Victim Compensation Fund
§ Vaccine injury compensation funds
• Childhood smallpox
• Pandemic/bioterrorism countermeasures
§ Florida and Virginia Birth-related neurological injury compensation
programs
- Administrative Compensation Schemes in Torts – AUS
o NSW – Motor accidents (Lifetime Care and Support) Act 2006
§ Limited no-fault scheme for those catastrophic injury in traffic accidents
o VIC and NT – motor accident compensation scheme is no fault
- Reform in AUS
o National Disability Insurance Scheme (NDIS)
§ Passed through parliament in 2013
§ Insurance covers for all Australians in the event of a significant disability
§ Government funded, like Medicare
o National Injury Insurance Scheme (NIIS)
§ Separate state-based scheme
§ Nationally consistent, no-fault lifetime care and support to people newly
affected by catastrophic injury from accidents including
• Motor vehical
• Workplace
• Medical
• “general “accidents
• Criminal accidents

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EXAM! – TEMPLATE FOR ALL PROBLEM QUESTIONS

BREACH

1. Introduce Case

[Plaintiff]v [Defendant]

2. ISSUE: Identify the wrong and what risk did the wrong create – be very specific

- The issue is whether the wrong in this instance, which is ………. has breached the duty of care in
which [defendant] owed [plaintiff]
- The risk created by this wrong is …… (higher potential of an accident occurring?) ………..., which
can cause (physical and/or mental) injury

3. Standard of Care

- Per Imbree v McNeilly, the standard of care of the [plaintiff] is one of a reasonable person.
- However, the standard or care may be modified due to the attributes of the plaintiff.

IF NOT MODIFIED

Metal Illness and disability

- Interpreting the facts, it is clear that the plaintiff suffers from a form of mental injury/disability
as ………………
- However, as per Carrier v Bonham, mental injury and disabilities are seen to not diminish or reduce
one’s liability in negligence.
- Thus, the standard of care used to assess the plaintiff’s liability will still be one of a reasonable
person and will not be modified

Learners
- Interpreting the facts, it is clear that the plaintiff is a learner, as …………..
- However, as per Imbree v McNeilly, Learners are still held to the same reasonable person test
and the standard of care will not be modified

IF MODIFIED

Children
- Interpreting the facts, it is clear that the plaintiff is a child as ……………
- However, as per McHale v Watson, the standard of care for children is modified into a lower
standard of care, as children are not seen to have understood and awareness as an adult
- Thus, the plaintiff will be not be held to a reasonable person’s standard of care when the court is
determining whether a breach of duty has occurred.

Professionals
- Interpreting the facts, it is clear that the plaintiff is a professional as ………
- However, as per Rogers v Whittaker, the standard of care is modified for professionals through
the modified Bolam principle, stating that “'the standard of reasonable care and skill required is
that of the ordinary skilled person exercising and professing to have that special skill'.
- Thus, the plaintiff will be held to a higher standard of care than the reasonable person.

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4. Utilisation of the CLA – s5O and s5P

- S5o and s5P of the CLA will only be utilised if the standard of care applied is one of a
professional.
- IF NOT A PROFESSIONAL – Hence, as the plaintiff is not a professional, these sections will not
apply.

In regard to s5o:
- A professional will not be held liable in breaching a duty through a professional service if the
professional acted in a manner which is widely accepted in Australia as a competent professional
practice
- However, as per the modified bolam principle, the court will determine whether this widely
accepted practice is irrational or not
- Interpreting the facts, the professional service of ……………..:
o Will be seen as widely accepted as ………….., thus the plaintiff may be able to utilise
this section.
o Will not be seen as widely accepted as ……………, thus the plaintiff may not be able to
utilise this section.

In regard to s5P:
- USE IF A WARNING IS RELEVENT IN THE FACT
- The disclosure of information is treated differently to treatment, as there is a duty to warn of a
material risk regardless of any 'widely accepted practice', whereby a risk is material if the patient
would attach significance to it or express concern.
- Thus, Rogers and Whittaker must be applied
- Applying this to the facts ……………..
- Therefore, it is evident that [plaintiff] will be (will not be) protected under this section

5. Reasonable Foreseeability of Risk of Injury

The court must now considers CLA s5B(1) in determining whether [Plaintiff] has breached his/her
duty.

Reasonable Foreseeability
- In order to determine if the risk of injury is reasonably foreseeable as per s5B(1)(a), we apply
Wyong Shire Council v Shirt, assessing whether or not “the risk is not one that is far-fetched or
fanciful”
- Applying this test to the facts,
o The risk is reasonably foreseeable as ………….
o The risk is not reasonably foreseeable as ………….

Not Insignificant
- In order to determine if the risk is not insignificant as per s5B(1)(b), we must assess whether the
negligent wrong carries a high probability of the harm occurring
- Applying this test to the facts,
o The risk is not insignificant as ………..
o The risk is insignificant as ………..

Calculus of Negligence

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- In determining whether a reasonable person would have taken precautions against a risk of
harm as per s5B(1)(c), the court is to consider the factors listed in s5B(2):
- This is not a value neutral exercise and there is no set weighting for these factors

Probability of the Harm

- The probability of the harm occurring indicates whether precautions should have been taken, as
by applying RTA v Deterer, if the probability of harm is low a reasonable person would not have
taken precautions, and vice versa
- (Must go back before the incident happened to see if its foreseeable that the risk of harm
could eventuate)
- Interpreting the facts, there is clearly a
o High (low) probability of harm, as ………….. Hence, a reasonable person is likely
(unlikely) to take precautions in this situation as per s5(2)(a)

Likely Seriousness of the Harm

- As per Paris v Stepney Borough Council, the likely seriousness will depend on the plaintiff at
hand, particularly if the plaintiff is vulnerable to harm
- Interpreting the facts, it is evident that there is a
o Very likely (unlikely) potential for the harm to be serious, as ………… Hence, a
reasonable person is likely (unlikely) to take precautions in this situation as per
s5(2)(b)

Burden of Taking Precautions

- As per Woods v Multi-Sport Holdings, the court must assess whether there is a burden in the
defendant in taking precautions in avoiding the harm
- Interpreting the facts, it is evident that,
o There is (is not) a burden in taking precautions, as …………
- Hence, a reasonable person would have (would not have) taken precautions in such
circumstances as per s5(2)(c)

Social Utility
- As per E v Australian Red Cross Society, one will not be found in breach of a duty of care if the
court decides that the risk of harm does not outweigh the social utility.
- Interpreting the facts, it is evident that
o The risk of harm does (not) outweigh the social utility, as ………
- Hence, a reasonable person would not be found (would be found) to breach there duty of care
on the basis of s5B(2)(d)

Weighing up calculus conclusion

- As it has been examined that …………….., hence the court is likely to conclude that as per
s5B(1)(c), a reasonable person would (would not) have taken precautions in such a situation

6. Overall Conclusion

Thus, it is likely (unlikely) for the court to conclude that [plaintiff] has breached his/her duty of care
on the basis of……..

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CAUSATION

Factual Causation

As per s5D(1)(a), the court must first attempt to apply the “but for” test in order to establish factual
causation.

IF “BUT FOR” SATSFIED

In the case at hand, the court is able to establish that “but for” the …….[incident that occurred], the
….[injury/harm] would not have occurred

Thus, the court must continue to determine whether causation is established, by ensuring there is
no novus actus and examining the remoteness and scope of the incident.

IF “BUT FOR” IS NOT SATISFIED

However, as there are (multiple potential causes for the injury OR an intervening act), particularly:
………, this is rendered an exceptional case and the court must apply s5D(2) and determine whether
or not and why responsibility for the harm should be imposed on [defendant] (March). In
determining s5D(2), the court will apply Adeels Palace

Applying this to the facts, ………..

Novus Actus Interveniens

In order to determine whether there is a novus, the court must determine whether:

1. There is a reasonably foreseeable event in the situation of risk created by the defendant, or
2. There is a voluntary human act, or
3. There is a casually independent event unconnected with the negligence

1. Reasonably foreseeable event

The issue is whether the event of ……….. is reasonably foreseeable in the situation created by the
defendant

Applying Chapman v Hearse, an intervening act does NOT break the chain of causation, as long as
the intervening act was a reasonably foreseeable result of the original act.

** if third party – further, if the act involves a third party, an intervening negligent act of a third
person does NOT break a chain of causation if the original wrongdoer should have realised that a
third person might act so

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** if medical case – further, if the case involves medical practice, the court must apply Mahony v
Kruschich, stating that, Further harm through bad medical treatment is a reasonably foreseeable
consequence of the original tortfeasor’s negligence and does not break the chain of
causation. However, the court also held that in cases where the treatment is 'inexcusably bad' or
really inappropriate, then it will constitute an intervening act.

Applying this to the facts, …………………

Thus, the court is likely to conclude that the act of …………… is (is not) a reasonably foreseeable event

2. Voluntary Human Act

The issue is whether the event/s of ………. constitutes as a voluntary human act that breaks the chain
of causation

Applying Haber v Walker, The harm is classified as within the scope of liability if the Plaintiff’s
conduct (voluntary human act) was a reasonable or forced response to initial harm, it was therefore
‘caused by the defendant’s initial act of wrongdoing’.

Applying this to the facts ……………….

Therefore, it is evident that there is (is not) a voluntary human act that breaks the chain of causation

3. Casually independent event

Further applying Haber, the court must examine whether the act of ………… can be classified as a
casually independent event unconnected with the negligence.

Applying this to the facts ……………..

If within scope of liability – thus, we must apply Haber as it is evident that there is no casually
independent event connected, and thus the defendant will be held liable

If not within the scope of liability – thus, we must apply McKew v Holland Hannen and Cubitts, as
the act of …………… can be classified as unreasonable lack of care for their own safety

Remoteness and Scope

As per CLA s5D(1)(b), the court must examine the remoteness and scope of liability in order to
conclude that the defendant caused the harm.

To do this, the court must observe the reasonable foreseeability of the damage by applying Wagon
Mound No.1, stating that A defendant is liable for all the harm that they have caused, provided it is
damage of a kind that is reasonably foreseeable as a consequence of the breach, even if the full
extent of the harm was not reasonably foreseeable.

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The harm is classified as within the scope of liability if It is not ‘too remote’ in the sense that it is
harm of a kind that is reasonably foreseeable, even if it occurred in an unforeseeable way.

1. Kind of Injury

The issue is whether the injury of is a kind is reasonably foreseeable

In the case at hand, the injury is …………,

This is clearly (not) foreseeable as………, thus we must:

** if psychiatric, apply Kavnagh

** if physical injury, apply Stephenson

2. Manner of Occurrence

- As per Hughes v Lord Advocate, just as long as there was some broad scope of injury
possible, doesn’t matter how specifically it came about, with all that matters being that the
damage just needs to be actualised.

Applying this to the facts, …………

3. Extent of Damage

As per Dulieu v White & Sons, A wrongdoer must take their victim as they find them, referring to the
Egg-shell skull rule.

If the plaintiff already has a pre-existing injury, the defendant can’t say they are not liable because
the plaintiff was already susceptible to the injury.

Applying this to the facts, ………..

Thus, as even though there is a pre-existing injury, we must apply Nader and Kavanagh and reject
this as a reason for the injury.

4. Statute Law Examination

The final step is to examine CLA s5D(1)(b) and s5D(4), as the court must come to a conclusion on
whether or not a why the harm should be imposed on the negligent party, which is a normative
question.

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DEFENCES

Contributory Negligence

The court must consider whether the plaintiffs’ actions of ………… can be deemed as contributing
aspects to the plaintiff’s own injury of ……….

1. Breach of Duty of Care

As per s5R, the court must determine whether the plaintiff failed to take care of their own safety. To
assess this, the court considers s5R regarding to determine whether the plaintiff failed to take
precautions against the risk of harm, using the reasonable persons test. This is an objective standard
test with no dispensation is made if the P was incapable of achieving the standard of the reasonable
person.
To determine this, [plaintiff’s] age may be considered as the standard of care of a reasonable person
can be influenced by age (Doubleday v Kelly)

Applying this to the facts, ……….

Thus, it is evident that [plaintiff] breached/has not breached her personal duty of care …..

2. Causal Link

As per Froom v Butcher, the plaintiff’s contributory negligence will be irrelevant unless it is causally
related to their injury. Thus, the court will must decipher whether the actions of …………….. are
directly a cause of the injury of …………The court must determine the causal link to the damage, not
the accident occurring?

Applying this to the facts, ……………..

3. Apportionment

If a breach of self-duty and a causal connection are satisfied, contributory negligence is found and
the court will apportion damage according to relative faults.
To do this, the court must consider:
- How far the plaintiff departed from the standard of care of a reasonable person
(Pennington)
- The relative importance of the parties’ act in causing the harm (Podrebersek)

Departure from the standard of care – (Pennington)

It is evident that [plaintiff] (only slightly/drastically) departed from the standard of care of a
reasonable person as ………[FACT].

Casual Potency – (Podrebersek)

In weighting each parties contribution to the injury, it is evident that ……..

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CA s5S
- The court must also consider s5S as the court may determine a reduction of 100% if the
court thinks it just and equitable to do so, with the result that the claim for damages is
defeated
- Applying this to the facts, …………..

4. Conclusion

In conclusion, it is evident that contributory negligence does (does not) apply to the case at hand

IF IT DOES: - thus, the court is likely to apply a 70/30 or 80/20 proportion in the case at hand.

Voluntary Assumption of Risk

In order to constitute the defence of voluntary assumption of risk, the court must consider whether:
- The plaintiff had knowledge of the risk, and
- The plaintiff voluntarily made the choice to undertake this risk

1. Knowledge of risk

To determine this, the court considers s5G, whereby it must be deciphered whether the risk can be
deemed as obvious or not, as if it is seen as an obvious risk the court presumes the plaintiff aware of
the risk of harm, unless the plaintiff proves on the balance of probabilities that they were not aware
of the risk. An obvious risk is defined by s5F as a risk that “would have been obvious to a reasonable
person in the position of that person”

Applying this to the case,……….

** Examples of Obvious and Non-Obvious Risks

NON-OBVIOUS - Doubleday v Kelly – Falling off a trampoline while wearing roller skates was held to
be a non-obvious risk, from the perspective of a 7-year-old child
OBVIOUS – Dederer – Diving off a bridge into water 9 metres below in circumstances where a ‘no
diving’ sign is positioned nearby was held to be an obvious risk, from the perspective of a 14-year-
old boy

** If non-obvious risk
- However, If the risk is deemed as not obvious, voluntary assumption of risk is still available
as a defence If it is proven that the plaintiff knew about and consented to the specific risk at
hand

2. Voluntary Action

If knowledge of the risk is determined, the court must assess whether there was a voluntary action,
as a plaintiff who was constrained by circumstances from making a free choice will not be regarded
as acting voluntarily (Joyce)

Applying this to the facts

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** Example of voluntary action

Insurance Commissioner v Joyce à - Plaintiff got into a car when he knew that the defendant was
drunk à An individual who accepts a lift with an obviously drunk person cannot make a claim as
they consented to the risk of injury (expressly or impliedly)

Dangerous Recreational Activity

For the statutory defence of dangerous recreational activity to be satisfied, the court must consider:
- Whether a recreational activity was taken place, and
- Whether the recreational activity involves a significant risk, and
- Whether there is the materialisation of the obvious risk while engaging in the activity

1. Recreational Activity

Recreational activities are defined by s5K, which include

- (a) Any sport (whether organised or not)
- (b) Any activity for pleasure, relaxation etc.
- (c) Any activity in a place used for the sport/pleasure etc.

Applying this to the facts, ……

2. Significant Risk

The court must establish whether the recreational activity involves a significant risk, referring to a
risk that is "somewhere between a trivial risk and a risk likely to materialise.” (Fallas)

Applying this to the case,…..

3. Obvious Risk

An obvious risk is defined by s5F as a risk that “would have been obvious to a reasonable person in
the position of that person”. As per s5L, there will be no liability for harm suffered from obvious risks
within dangerous recreational activities.

Applying this to the facts, ……..

*** possible case: Mulligan v Coffs Harbour City Council

o Mulligan was swimming in Coffs Harbor when he performed a dive several times. On
the last occasion, he hit a sand dune and became a paraplegic.
o There were no signs warning of the uneven bed as a result of the sand dunes in the
area
o Did not find the risk as obvious

4. Materialisation of Obvious Risk

The court must consider common law in order to determine if the obvious risk materliased

Fallas, Falvo, Vreman

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Fallas
- Fallas accidently shot friend whilst hunting kangaroos by spotlight
- risk was not materialised – defence did not apply and Fallas was found negligent

Falvo

Vreman
- BMX bike riding where it was found that performing jumps on a BMX bike at a skate park
was a dangerous recreational activity and the risk of the wheel slipping on landing on a
painted concrete surface was an obvious one

VICRIOUS LIABILITY

1. Issue:

The issue is whether [company] will be held vicariously liable for the actions of [defendant], which
include …………..

2. Set up structure

In order to determine whether [Company] is vicariously liable, the court must assess whether:
- 1. The relationship is that of an employer and employee, and
- 2. Whether the wrongdoing was committed in the course of employment, and
- 3. Whether the tort caused the injury

3. Relationship

As per Sweeny v Boylan Nominees, [Company} is not vicariously liable for the wrongdoing of an
independent contracts. In order to assess whether the relationship between [defendant] and
[company] is one of an employer and employee, we must apply Hollis v Vabu and use the modified
control test, referring to the right of an employer to control an employee.

Factors of the modified control test:

- Provision of equipment
- Worker is presented as a part of the defendant’s organisation
- worker has little control over how he may do his job, the hours of his job or the conditions
- The worker's payment scheme or holiday schemes are managed by the Defendant.
- The job performed by the worker is a main job of the Defendant and not some supplementary
side task
- The job allocated to the worker involves a low level of skill

Applying this test to the case at hand:

- …………………………. Suggests that [defendant] is (is not) an employee

4. Course of Employment

To establish whether the wrongdoing occurred during the course of employment, the court will
apply New South Wales v Lepore, stating that an act is within the scope of employment if it is
authorised (expressed or implied), or sufficiently close to what is authorised, by the defendant.

Applying this test to the facts, …………

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**Thus, it is evident that the tort was (was not) committed during the course of employment

**Thus, as the defendant was “acting on a frolic of her own” (Zakka v Elias), the tort was not
committed during the course of employment

5. Causation

As established above, it is evident that there is (there is not) a causal link between the defendant’s
actions and the injury suffered by the plaintiff
- IF VICARIOUS: therefore, as the tortfeasor has been deemed as an employee, and the tort was
found the be committed in the course of employment, it is highly likely that [will be found
vicariously liable]
- IF NOT: therefore, as the tortfeasor was not deemed an employee/the tort was not committed
in the course of employment/the tort did not cause the injury – it is highly unlikely for
[company] to be found as vicariously liable

DAMAGES

If the court is to find that [defendant] has breached his/her duty, that [defendants’] actions were the
cause of the harm and that the plaintiff is unable to rely on an defences, the court will thus examine
the damages appropriate to this case.
As per Todorovic v Waller, “A plaintiff who has been injured by the negligence of the defendant
should be awarded such a sum of money as will, as nearly as possible, put him in the position as if he
had not sustained injuries.”
Compensation is also done using a once and for all lump sum payment method.

Economic Damages

1. ‘Actual’ loss

The court must first examine the actual loss of wages which occurs up to the time of trial and which
can be more of less precisely ascertained prior to examining future loss (Graham v Baker 1961)

Hence it will be appropriate to compensate the plaintiff for ……………

2. Future loss of earnings

As per Murphy v Stone Wallwork, “The assessment of damages for the future is necessarily
compounded of prophecy and calculation”.

The first step in assessing this is to examine CLA s13(1), stating that the court must decide on the
basis of the “claimants’ most likely future circumstances but for the injury”, which is to be multiple
by the years until retirement.

Applying this to the case, …………..

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Further, as per Wynn, calculation of future economic loss must take account the various possibilities
which might otherwise have affected earning capacity." With a 15% discount generally appropriate
subject to adjustment to take account of the plaintiff’s particular circumstance.

Moreover, the court must minus the lost years ‘cost of living’ where [plaintiff] couldn’t do certain
activities because of the injury, such as …………

Also, the court must plus or minus any other contingencies it sees necessary (Promotion,
unemployment, marriage, maternity leave, sickness, industrial action)

However, as per CLA s12(2), no more than 3x the average weekly NSW wage must be used to
compensate [Plaintiff].

3. Medical Expenses

The court must continue by deciding what constitutes reasonable medical expenses by using a cost v
benefit analysis (Sharman v Evans) (hospital v in home care)

In regard to the facts, it is evident that a cost benefit analysis must be used to evaluate the
possibilities of …………….

Hence, as it is evident that reasonable medical express include ………… and exclude ………, the court is
able to conclude what compensation is reasonable for these medical expenses.

4. Gratuitous Carer

Furthermore, the court must consider CLA s15 in order to determine whether compensation is
appropriate for a gratuitous carer, which in this case is [Name]. I order to be compensated for a
gratuitous carer, all 4 subsections must be proven.

CLA s15(1) states that the service is provided by another person without cost
- This is evident in the case as ……..
- This is not evident in the case as ………

CLA s15(2) stats that there must be a reasonable need for the carer on the basis of the injury, as the
carer would not be provided ‘but for’ the injury
- This is evident in the case as ……..
- This is not evident in the case as ………

CLA s15(3) states that Care must be provided for more than 6 hours per week and more than 6
months
- This is evident in the case as ……..
- This is not evident in the case as ………

CLA s15(4) states that if the services that are provided for more than 40 hours a week, the damages
that may be awarded for the care must not exceed the average weekly market rate of employment.
However, as per s15(5) if provided for less than 40 hours per week, the amount of those damages
must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined
in accordance with subsection (4).
- It is evident in the case that ………

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5. Discount Rate

Additionally, according to s14, a discount rate will be applied if the compensation is to include
compensation for any future loss of any kind.
- if prescribed, the court will use the discount rate provided
- If not prescribed the court will use a 5% discount rate

Non-Economic Damages

- Damages for non-economic loss are governed by CLA s16

- Those damages have to be assessed as a percentage of “a most extreme case”, which is awarded
100% of the maximum indexed amount.
- Instances of the most extreme case, as expressed in Southgate v Waterford, include
Quadriplegia, total blindness accompanied by loss of limbs (Mason v Demasi) and severe brain
damage restricting one’s ability for an independent life (Quintano v BW Rose Pty Ltd)
- However, under s16(1), no damages for non-economic loss will be awarded unless “the severity
of the non-economic loss is at least 15% of a most extreme case”

Redding v Manly Surf Lifesaving Club

1. Pain and Suffering

Realisation of the loss à does the person realise what’s going on and how much they are really
impacted
- Skelton v Collins – unconscious = no damages for non-economic loss regarding pain and
suffering
- Redding v Manly Surf Lifesaving club – disappointment is ongoing as her dream was destroyed
à damages regarding pain and suffering

2. Loss of Amenities

Loss of Amenities refers to the “deprivation of the ability to participate in normal activities and thus
to enjoy life to the full and to take advantage of the opportunities that otherwise it might offer.”
(Teubner v Humble).
In assessing damages for loss of amenities of life, the court assesses both the conscious awareness
of the loss as well as the objective deprivation of the opportunity to enjoy the normal experiences
and amenities of life.

3. Loss of Expectations of life

Described as “consolation for the mental anguish suffered during the shortened lifespan or as a
means by which the P may attempt to obtain fulfilment in lieu of that which has been denied.

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