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Elements:
1. An act or omission by D
2. Infringement of an interest of P recognised by law as being worthy of protection against an infringement of that sort, created by an act or
omissions of that sort, and
3. Giving rise to a civil action for damages
Act must have been voluntary (tortfeasor must have intended the act but it is not necessary that the tortfeasor intended to inflict the
damage resulting from the act). Act or omission generally requires fault. i.e. No liability without fault. D must have acted intentionally,
negligently, or recklessly. Cf strict liability, where D is liable even in the absence of intention, reckless, negligently.
Interest protected:
May not have a right of action even if damage occurs Damum absque injuria (damage without injury damage without any legal wrong)
A person may have a right of action although they have suffered no injury. injuria sine damno (legal harm without actual damage)
No right to privacy Victoria Park Raceway v Taylor. A case of damage w/o injury.
A person may have a right of action w/o damage. Absolute rights, actionable per se. (Trespass)
Interest affected
Phys Integrity
Tort
Battery
Nature of infringement
Direct, un(neg.battery)/intentional
Indirect/unintentional
Remedy
Nom,
Damages,
punitive
Direct/intentional
Compensatory damages
Nominal, Compensatory
Indirect/unintentional
Compensatory
Compensatory
aggravated,
Negligence
Mental integrity
Assault
Nervous
(negligence)
shock
Reputation
Defamation
Personal
Liberty,
freedom
Right to use land, air,
sea
False Imprisonment
Direct/un/intentional
Compensatory, Exemplary,
aggravated
Nominal, Compensatory
Trespass to land
Direct/intentional
Nominal, compensatory
Nuisance
In/direct/intentional
Negligence
Indirect/unintentional
Nominal, Compensatory,
self help, injunction
Compensatory
Compensation: to compo losses to P in their legally protected interests. Focus on conduct of D and harm to P
Loss shifting: a principal function of torts is to shift the loss from the innocent victim to the wrongdoer. Individual liability theory individual
D bears the loss, enterprise liability theory large organizations eg: employer should bear the loss for torts of employees.
Spreading: shift from innocent party to wrong doer. Spread through no-fault schemes (i.e. Vic roads)
Deterrence: effect reduced to availability of insurance.
Remedies: Nominal (if not actual damage), Compensatory (actual losses, med, damage), Aggravated (hybrid of compensatory /
exemplary) (for indignity, hurt feelings, disgrace, humiliation), Exemplary/punitive (punish D if shows a contumelious disregard for P rights),
Contemptuous (a derisory amount indicating the courts low opinion of the Ps claim)
Definition
Elements
TRESPASS
NEGLIGENCE
Intentional or negligent act of D which directly Failure of D to take reasonable care to prevent
causes an injury to the Ps person or property foreseeable harm to the Ps person, property or
without lawful justification
economic interests
Intentional or negligent act (D must only intend Duty of care
(be reckless or negligence) act not damage)
Breach
Injury must be direct
Damage/Loss caused by Breach and not too remote
Injury to Ps person or property
No lawful justification
OR
Onus of Proof
P proves direct interference with right & thenP has the burden of proving all the elements i.e. onus
shifts to D to disprove fault i.e. neither intentionalon P throughout
or negligent except for highway cases where
onus remains on P throughout Venning v Chin
Actionable per se(no need to prove damage)
TRESPASS TO PERSONS
Trespass to the person: The wrongful, direct and intentional interference with
persons: McHale v Watson. Three types: False Imprisonment, Battery, Assault.
All are actionable per se.
ASSAULT
Assault is the intentional or negligent act or threat by D that directly places P in
reasonable apprehension of an imminent physical interference with him/her, or
the person of someone under his or her control w/o lawful justification.
(threat of battery) Gist is apprehension and actual knowledge.
Elements: Proves direct threat, then D must disprove fault.
1) Direct threat by D. Words/conduct or both. Did D issue a threat to P:
Stephens v Myers (1830). There must be the means to carry out the threat?
Conditional threats may be harmless by the words of D (clear intention not to
batter): Tuberville v Savage; A condl threat will not constitute assault unless the
offered alternative is an unacceptable command: Police v Greaves. If the threat
is a suggestion of assault at a future time, and there is no way for the victim to
escape b/c at the mercy of the tortfeasor until the threat can be carried out, then
it will be assault. Zanker v Vartzokas.
2) Intention: to cause apprehension
3) Apprehension of Imminent harmful conduct: Apprehension is to anticipate
physical contact w/ the fear or in the knowledge and expectation that it will
happen. Focus is on the mind of P not on whether the D was actually going to
follow up the threat BUT the D must have an actual or apparent present ability
to carry out the threat. Brady v Schatzel. Must be aware of assault. Doesnt
have to be afraid. Apprehension means to anticipate imminent body contact.
Obj Test: The threat must be sufficient to be able to raise apprehension in the
mind of a reasonable person. Unless the D is aware of the Ps particular
vulnerability e.g timid
Imminent: if someone calls you from overseas then not imminent. Brady v
Schatzel
4) W/o Lawful Justification: To be proved by D; Intent to carry out the threat is
irrelevant. Hall v Fonecca.
Words alone will be assault if they directly raise in the mind of the P the
apprehension of an imminent battery by the D Barton v Armstrong (telephone
threats).
1)
a.
b.
c.
d.
e.
m.
Self help: if withdraw consent must allow a reasonable time to leave and then
may remove with no more than reasonable force (danger of battery).
NEGLIGENCE
P will have an action in Negl. if P can show on the balance of probabilities
(Barnett v Chelsea & Kensington Hospital) that a duty of care was owed by D,
that D breached that duty causing Ps loss, which was reasonably
foreseeable/not insignificant.
Elements: Onus is P throughout. D to show defences
1.
Established Classes/Categories:
1) Road Users: Broadhill v Young
2) Driver/Passenger: Cook v Cook
3) Doctor/Patient: Rogers v Whitaker
4) Employer/Employee: Chaplin v Dunstan Ltd, Smith v Charles Baker
5) Occupier/Invitee: Heaven v Pender
6) Manufacturer/Consumer: Donoghue v Stevenson (PI and
consequential nervous shock)
Novel Categories: if not an established category then need to look at
analogous cases. Different cases give rise to different problems in determining
the nature and scope of a duty of care. Identify the type of harm then consider
the characteristics of the conduct and the nature of the relationship
Sullivan v Moody. Need to balance Ps interest in protection from harm with Ds
interest in freedom of action. Kirby, Gummow Tame,Annetts.
Pure Nervous Shock No physical impact
A. Originally only claimable if consequent upon Ps own injuries Victorian
Railway v Coultas
B. Extended to those present in zone of danger and placed in fear of
personal injury Dulieu v White
C. Actually present and/or injury/endangerment of close relative + rescuers
Hambrook v Stokes.
D. Then extended to those who experienced the immediate aftermath
involving a loved one. Jaensch v Coffey (both went to hospital)
E. Secondary hearsay victims Hancock v Wallace (never attended accident
or hospital, 3rd party communication sole source of info. Father and son
had very close relationship), Annetts
Elements: Australian Stations v Annetts
1. Recognised Psychiatric Illness
2. D ought to have reasonably foreseen that a person of normal fortitude
might have suffered a recognised psyc illness if reasonable care was not
taken.
3. In determining foreseeability balance the following factors
a. Was mental harm suffered as a result of a sudden shock (dont
exclude if absent, not an accumulation overtime.)
b. Was P at the scene or in the aftermath, and witnessed with unaided
senses (Hearing is sufficient: Petrie v Dowelling went to hospital, did
not see, but told child dead; Hancock v Wallace not at accident, not at
hospital told over the phone. Seeing: Alcock it is insufficient to see it
on T.V. if individuals cannot be identified, limited to those present.
Aftermath: Jaensch v Coffey only saw victim go into operating room;
Spence v Percy aftermath limited by time; victim after 3yr coma is to
far removed in time; Alcock- identification at morgue is not.
c. Pre-existing antecedent relationship btw P and D (main factor in
Annetts)
d. Nature of relationship btw P and the victim. (close ties and affection,
Hancock)
e. Gruesome factor to P (identifying mutilated body etc Annetts, Hancock)
Statutory Modifications: Law reform act 1994: Parent/ Spouse of person
negligently injured or killed has an automatic right. Other family members must
be at the scene. Motor Accidents Act 1988: Only injured driver passenger or
person present or immediate relatives at scene of the accident can claim
Omissions (Nonfeasance) Liability of Governments and Statutory
Authorities:
No general liability for omissions: - Stovin v Wise
Exceptions:
Pre-existing protective relationships: Teacher/Student Richards v Vic.
Eer/Eee Paris v Stepney Borough Council. Occupier/Visitor Romeo v NT
Conservation Comission, Prison Authorities L v Cth.
Duty to prevent 3rd party harming P: Parents to control children Smith v
Leurs. (no breach b/c tried to stop child; It is not a guarantee of safety, but an
obligation to act reasonably under the circumstances), Curmi v Mclennan
parent liable because gun was readily available to child; Hotel has duty to
patrons Chordas v Bryant (no breach b/c no prev. indicative violent behaviour)
Wormald v Robertson: hotel liable because offender had been complained
about.
Statutory Authorities: Key Principles per McHughJ, Crimmons and Barclay
Oysters v Ryan
1. Is it reasonably foreseeable that any kind of carelessness by the SA might
cause some damage to P or a class of person to which P belongs? If no,
then no duty
2. Was the SA in a position of control over P or a class of persons to whom P
belongs rather than the public at large? if no, then no duty (Pyrenees:
council owed duty to ensure fire hazard repaired. Brodie)
3. Was P vulnerable? Ie couldnt protect own interest, if no then no duty
4. Did D know or ought to have known that there was a risk to P or class of
person including P rather the public at large? if no, no duty.
5. Would such a duty impose a liability in respect of the policy making or
quasi-legislative functions? If yes, no duty (Gleeson, is this a justiciable
issue, Sep of Powers)
6. Is there any supervening policy reason that denies the existence of a duty
of care? If yes, no duty (Sullivan v Moody, No DOC to TP parents by
doctors. To find a duty would be to conflict with other rules in existence. Eg
Paramount duty to child based of Statute)
7. REFER TO TEMPLATE ON INFORMATION ON Crimmins v Stevedoring
Industry Finance Committee
Causation: Having established that D was neg, P must also show on the
balance of probs that Ds neg caused the injury: Barnett v Chelsea &
Kensington Hospita (Arsenic; would have died anyway)l. P must prove a
relationship btw their damage and Ds breach. Did Ds carelessness on the
balance of probs. materially contribute to, or increase the harm to P.
But for Ds wrongful conduct, there wouldnt be this damage Barnett.
BF Test insufficient in cases where there are multiple causes. March v
Stramare.
i)
ii) Where there are multiple causes, for P to discharge the onus of proof, he
must show one of them is the material cause:
Bonnington Casting v Wardlaw: Fumes had materially contributed to Ps
disease. Non-tortious and tortious(e/er liable for) fumes were inseparable. Court
drew conclusion in Ps favour
McGhee v National Coal Board: (dermatitis from brick kilns, e/er didnt provide
showers) If Ds breach creates a risk and injury occurs within the area of that
risk, then D should be liable.
Wilsher v Essex Area Health Authority: Rejects material cause test and states
that must prove fault causing damage. Explained McGhee as another
favourable inference finding for P
Australian Position: Bennett v Minister of Community health, Chappell v Hart:
used McGhee. Is the later subsequent event the very kind of thing that you
would expect to happen. Is 2nd event RF as result of 1 st. (wont be Novus actus
interveniens)
iii) Current Australian Position, the Legally Significant test: a more
complicated BF test. They ask, a) was it a legally significant cause of the
damage, b) about effects on/from policy considerations, and c) if the hazard was
increased by Ds actions (What harm is it that D owed a duty to guard
against?).
iv)Where D pleads Novus actus interveniens: A new intervening act breaks
the chain of causation: If the subsequent injury is a predictable consequence
of the primary injury and was likely to occur even without the intervening act,
this defence can not be relied upon to protect from subsequent injury: Adelaide
Chemical v Carlyle Where P was burnt by acid, then did not follow medical
advice resulting in further serious infection. This was NAI, in that the free and
voluntary act of Carlyle led to the result, breaking the chain of causation.
Subsequent intentional action of a third party. The Oropesa O negl, hit Ps
ship. P sent lifeboat to see O. lifeboat sunk, and Ps son died. P sued O saying
if wasnt for your negl we wouldnt have sent lifeboat to see you. O argued your
decision to send boat over breached chain. Held doesnt break chain if it is
exactly the type of incident that you would expect to happen. And after accident
it is RF that they would send someone over.
Kind of Damage: The precise concatenation of events need not be RF. So long
as the individual events are foreseeable, dont have to RF the exact same
sequence Chapman v Hearse (Dr run over by H after stopping to help C, who
negl injured himself. Held C liable for Dr injuries as well)
Take broad approach. Ie burns, not burnt by explosion of lamp (Hughes v Lord
Advocate)
Versic v Conners: D negl driving caused P to flung out of car. Ps head became
stuck in cutter and due to rain he drowned. Held D liable b/c even though
drowning is not a foreseeable risk of careless driving, death itself is
foreseeable.
Nadar v Urban Transit Authority: After an accident the boy develop psych illness
partly from over-protectiveness of parents. Foreseeable that an accident to a
10yo would bring about a reaction from his parents and even if his condition
was party attributable to their reaction, this was itself foreseeable.
Egg Shell Skull Rule: Smith v Leech Brain - If P has shown the damage was
reasonably foreseeable, then D is liable for any consequential damage which
results because of Ps peculiarities. Richard v Victoria: Teacher failed to stop
fight, boy knocked on head resulting in paralysis because of pre-existing
condition. D liable
6. Defences: To be shown by D
Contributory Negligence: Where Ps own carelessness contributes to the
damage suffered. Partial defence allows for apportionment of damages (s.10
Law Reform Act 1995) Ps negligence need only contribute to the harm not the
accident Froom v Butcher (was it a cause of the damage not accident)
Elements:
1. P was at fault/negligent: P conduct was below the standard of care (Bligh v
Birmingham)
Children: can be CN but reduced standard of care McHale v Watson, Bligh v
Bligh (b/c told not to play with electricity) McHale: kids engaged in
dangerous adult activities conform to reasonable standards of adults.
Momentary thoughtlessness by employee: distinguish mere inattention or
inadvertence. Commissioner for Railways v Ruprecht: P lost legs when stepped
onto railway line without looking. Held: P was not CN due to such things as
inattention born of familiarity and repetition and the mans preoccupation with
the matter at hand.
Failure to observe statutory regulations, highway rules: Breach of rules is not
conclusive as to whether P is liable for CN. Sibley v Kias You may be negl
even if comply with standard (e.g. if should have slowed down; in wet dark
conditions should travel below speed limit. NO seatbelt or helmet, will be CN is
it contributes to damage) Froom v Butcher.
Agony of the moment; sudden emergency rule: if Ds negl places P in a position
of choice btw 2 dangers the reasonableness of Ps acts is judged by weighing
the degree of inconvience and risk to which P was subjected by Ds negl
against the risk P took to escape it Caterson v Comm for Railways. (held not
CN when jumped from train to get back son who was left behind; train was
going slowly enough to justify jumping [per Gibbs CJ]) Also: Shelley v Szelley: P
said D was being negligent by veering off the road, in spite of P grabbing the
wheel. P didnt know the tire was flat! D smiled when he expressed concern.
D couldnt succeed with respect to CN, b/c Ps actions were excusable under
the circumstances.
7.
a)
b)
Elements:
1) Locus Standii: P must have a proprietary interest in the land: Oldham v
Lawson; Licensee (UK says no Hunter v Canary Wharf (1997), Aust cases
before 1997 have said yes, relying on overturned UK case of Khorasandjian
Deasy Investments v Montest so might change) but licensor/lessor is.
iii) Sensitivity of P: Must show that an ordinary person would have been
affected. Eggshell skull rule does not apply; If affects an ordinary person,
then the special damage caused by the sensitivity is recoverable:
Robinson v Kilvert; Mckinnon Industries v Walker.
Privacy not legally recognised interest: Victoria Park Racing v Taylor; but
Plenty v Dillon: (obiter) watching and besetting.
3. Nature of interference. Must be Substantial and unreasonable. The
interference can be physical damage or interference with enjoyment, eg noise,
smells.
6) Remedies:
a) Injunction: where continuing nuisance; if damages are inadequate and
balance of convenience in favour of P.
b) Damages: compensatory for past harm only. Reduction in property value is
not recoverable, not considered to be material damage to property. Account for
special damage as a result of undue sensitivity. Possibly Aggravated or
exemplary.
c) Self Help: Abate a nuisance (cost cannot be recovered) persons tree
overhanging the house can cut branches as long as give back: Lemmon v
Webb. But cant lean over fence. Trespass for abatement only allowed in
emergency. If no emergency should give notice, if want trespass to abate.
PUBLIC NUISANCE
Actionable by private individuals in tort only if they suffer special and particular
damage over and above the rest of the public.
Defn: An activity that materially affects the reasonable comfort and convenience
of a class of the public by interfering with a public or common right: AG v PYA
Quarries:
Interest protected: Public rights (clean waterways, blocked roadways, clean air)
P must show:
1: A class of people affected
2: Locus Standii
3: Interference is unreasonable.
Onus: P must establish that there is a nuisance. P must establish causation by
D. The onus then shifts to D to demonstrate and excuse.
Who can sue?
1. The attorney general as protector of common rights
2. Someone with the attorney generals fiat
3. A private P who has suffered special damage above that suffered by the
rest if the community.
Special interest: P must show that they suffered a particular or special loss
which is different to that suffered by the public at large or which is greater than
the loss suffered by the public at large. Special damage can be personal injury,
property damage, excessive noise or economic loss.
Economic loss Taylor v City of Perth Council had no power to block highway,
so were liable for nuisance and loss to business who was adjacent highway.
Inconvenience from an obstruction on highway Boyd v Great Northern Railway
Company Doctor held up at crossing for 20 min, suffered pecuniary loss and
peculiar damage (loss of time/money) Walsh v Ervin: Farmer whos path along
road was blocked; held no pecuniary effect. Only inconvenience and delay in
having to transport via indirect route.
Crowds: Silservice v Supreme Bread If Ds business attracted crowds could
by some reasonable means prevent the damage and he does not adopt those
means then he will be liable but note that a D carrying on business in suitable
premises and in a normal and proper manner will not be liable for the nuisance
caused by a crowd. Ie sale crowds, business would have to offer something
more than a normal sale.
Elements:
1. D must have a possessory interest in land
2. D must have knowledge of the nuisance to the public
3. D must have the means to abate it
4. D must fail to take appropriate means to abate it
Defences:
Statutory Authority: Authorised by Parl. if duty could have been performed in
another way to avoid interference, the defence does not apply: York Bros v
Commissioner for main roads.
Remedies: Injunction
Damages: Compensatory, Exemplary Walsh v Ervin, where the nuisance was
motivated by malice or a particularly outrageous disregard for public rights.
VICARIOUS LIABILITY
A secondary, derivative claim not an independent cause of action.
Where one person is held liable for the tort committed by another. E/er is liable
for the tort of the e/ee committed in the course of employment. Vicarious liability
is always strict liability and must be distinguished from personal liability, which
requires fault - Not absolute liability.
Justification: Hollis v Vabu need to provide a solvent Defendant. Capacity of
e/er to absorb cost of liability through insurance. e/er gets benefit of e/ee service
to advance their interest so they should bear the loss incurred within the
enterprise. Acts a deterrent to encourage E/er to prevent accidents.
Elements:
1. Commission of a tort: applies to all torts not just negligence.
2. By an Employee: Contract of service. Cf to independent contractor who has
a contract for services. Multi-factor test: Stevens v Brodribb, Sawmilling Co Ltd
The nature and degree of control the eer has. The right to control Stevens
The freedom of action given to the worker to perform the task can
worker delegate
Justification: Its a tradeoff btw two innocent parties. The injured party and
innocent eer.
NON DELEGABLE DUTY
Primary claim, an independent cause of action. Only in Negl. And fault must be
proved by P Rich v Samin, Lepore, Used to justify the imposition of liability on
one person for the negl of another to whom the former has entrusted (or
delegated) the performance of some task on their behalf. It is a duty to see that
care is taken.
Elements: P must show
1. negligence by tortfeasor (usually a IC or outsider to company)
2. duty of care owed by D to P
Based on nature of relationship, D accepts special responsibility(control), P has
a reasonable expectation that care will be exercised (special vulnerability or
reliance)
Eer/eee: Kondis v STA ind. Contractor (eer cant be Vicariously liable)
operated crane which injured P an eee. Eer breached duty to ensure that there
was a safe place to work and that IC took care to adopt safe system of work.
Hospitals/Patients: Cassidy v Ministry of Health if their staff are negligent in
giving treatment, they are just as liable for the negl as is anyone else who
employs others to do duties for him.
Roe v Minister of Health even if not eees they are agents of hospital to give
treatment. Exception is consultants or anaesthetists selected and employed by
the patient himself.
Ellis v Wallsend District Hospital P organised private surgeon to use hospital
facilities, hospital not liable for non-delegable duty b/c it had low involvement,
just let them use facilities. Samios v Repatriation
Schools/Students: Cth v Introvigne (flagpole hit P) NSW v Lepore, Simon v
Qld, Rich v Qld onus is on P to show fault.
Occupiers&neighbours/visitors: Burnie Port Authority v General Jones D
owner and occupier of premises where IC was wielding. O occupied premises
to store frozen goods. IC negl caused a fire. Held: D owed P NDD that IC took
appropriate care. Note special dependence and vulnerability of P.
3.
1.
breach
Provision of competent staff: Harrison v NCB liable if eer knows
eee likely to engage in conduct
2. Provision of proper plant, premises and equipment:
3. Safe system of work: General Cleaning Contractors v Christmas - It
is not reasonable to expect the individual worker to take the initiative
to devise and use precautions.
McDermid v Nayh Dredging Co Also duty to eer to supervise system in actual
operation to ensure a safe system
OConner v Commissioner for Govt Transport However no duty of constant
supervision if they have provided a safe system.
Justification/Policy considerations:
D is already vicariously liable for the fault of its own staff and
1)
2)
3)
4)
5)
6)
DEFAMATION
Slander (verbal or transient) or libel (written or permanent) Aim: protect
reputation:
To succeed in defamation P must establish
1: Material was defamatory
2: It refers to P
3: It was published
4: D does not have a defence.
Who can Sue: any living person, or group of person and corporations.
Who can be sued: publisher (communicator) to anyone other than P, TV and
Newspapers who distribute or republish the defamatory material.
Elements:
1. Defamatory Matter: Did the statement of D in its ordinary and natural sense
defame P
At CL: A statement of a kind likely to lead ordinary decent folk to think less of a
person about whom it is made Consolidated Trust v Browne. Innuendo can
also amount to defamation. 2 types: False (those that can be drawn by any
reader) true (appears innocent on its face but defamatory to those with special
knowledge)
Under Defamation Act 1889 (Qld) s.4(1) any statement which is likely to injure
Ps reputation, or Ps profession or trade or which is likely to induce other
people to shun or avoid or ridicule P. s5(1) any person who by spoken words or
audible sounds, or by words intended to be read either by sight or touch, or by
signs, signals gestures or visible representations, publishes any defamatory
imputation concerning any person is said to defame that person. Includes both
permanent and transitory forms it does not distinguish between libel and
slander.
2. Reference to P: It is not necessary that the statement actually includes the
name of the plaintiff, or was intended to defame anyone. Hulton v Jones. Obj
test Would an ordinary reasonable recipient of the statement take it as
referring to P
3. Was the statement Published:
Communication to anyone other than P. D either intends the words to be heard
or read by a TP or they should have foreseen this would occur Dow Jones &
Company v Gutnick. Defamation on internet occurs where material is
downloaded.
Defences:
sue in tort.
Examples of insurance crisis
Change causation
Exclude liability for obvious risks and incorporate presumptions of
awareness
Section 11 Causation
Loss shifting should losses lie where they fall or should they be
shifted from A to B?
If losses are to be shifted on what basis?
fault)
Also flow on effect others hear about the lawsuits and can modify
their behaviour
Fixing culture of blame
This is not a bad thing. E.g. note current focus on sexual and
physical abuse claims against religious, charitable and educational institutions.
These institutions should be held accountable for their wrongdoing. Two
purposes vindication of rights of victim & sends message to community
sexual abuse is unacceptable
Will tort law reform solve the problems?