1. Identify parties (multiple?

) (Lord Atkin’s) Foreseeability Tests in Negligence Grant v Australian Knitting Mills Ltd
2. Injury/damage + wrongdoings Duty: RF that any kind of carelessness of D may cause damage of some kind to P
3. Possible COAs Breach: RF that the kind of carelessness of D may cause damage of some kind to P
Negligence Causation: RF that the kind of carelessness of D may cause the kind of damage to P
Duty of Care
Note: Must use any relevant provision in CLA where possible for negligence
Defendant only liable, in negligence,
If there is no relevant provision, must use caselaw
for
failure to take reasonable care, Established Categories
where law
imposes a duty to take such care - No duty to act unless a person has duty to control or supervise:
- Sullivan v Moody - Prison Officers – Prisoners – L v Commonwealth
- Parents – Third parties (harm caused by children)
D owes duty to P if RF that if D carries No general duty to prevent harm to third parties, except for this
out the act/omission, a person in P’s - Modbury Triangle Shopping Centre v Anzil
position could be harmed - Schools/staff – Children – Geyer v Downs
- Donoghue v Stevenson - D – P if D knows of hazard able to be removed – Hargrave v Goldman
Harm (damage) definitions – CLA s 3 - D creating danger – Rescuer – Chapman v Hearse
Established category/novel category No duty to rescue – Hargrave v Goldman
- Occupier – Entrant/Visitor – Australian Safeway Stores v Zaluzna
Breach – CLA s 5
Does not extend to protecting patrons from self-induced intoxication
1) Foreseeability of risk
- Cole v South Tweed Heads Rugby Football Club Ltd
Differs from probability s 5B(1),(2)
Nor need to protect P from harm caused by third parties on property
2) Reasonableness of precautions
- Modbury Triangle Shopping Centre v Anzil
s 5B(1)(a),(b),(c) and (2)
- Manufacturer – Consumer - Donoghue v Stevenson (neighbour principle)
Precise injury and extent of likely
harm irrelevant during breach stage Novel Category Tests
Reasonable person
- Jurisprudence – “man on - Incremental Approach (Sutherland Shire Council v Heyman)
Clapham omnibus” 1) Damage suffered by P was a RF result of D’s negligence
Standard Of Care 2) Law of DOC should increase incrementally
- Children (McHale v Watson) In such a case, similar established category must be recognised and
- lesser standard of care an argument must be made by analogy to this established category
- Mentally Ill (Anderson v Motor - nt Features Approach (Perre v Apand Pty Ltd) (e.g. pure economic loss)
Vehicle Insurance Trust) 1) Damage suffered by P was a RF result of D’s negligence
- lesser standard of care 2) Consideration of ‘salient’ (most important + relevant) features of case
- Public authorities – CLA part 1c to determine if there is a sufficiently close relationship for DOC
- Those professing a special skill
(Rogers v Whittaker) Special Rules
“ordinary/reasonable person to be Some relationships between P and D have special rules which apply relating to
judged with having that skill” DOC owed by D to P
- Medical professionals – s 5pA,B E.g. Pure economic loss (Doctor – Patient)
Calculus of Negligence - s 5B Negligently inflicted mental harm (Nervous Shock Cases)
(Factors affecting precautions)
a) Probability of harm occurring
(Bolton v Stone)
Probability of risk occurring must be high for D to be liable “Breach – risks that are foreseeable and not
b) Seriousness of harm occurring (Romeo v Conservation Commission) insignificant must be protected against”
D more likely to be liable if there is greater harm caused by risk
c) Burden of taking precautions (Graham Barclay Oysters v Ryan) Risk of harm must be foreseeable at time of
Would a reasonable person take any precautions? conduct – test of foresight, not hindsight
d) Social utility (E v Australian Red Cross) (H v Royal Alexandra Hospital for Children)
Benefits of an activity which causes harm (benefits v harm)
More benefits = less likely to be liable Pre-CLA cases are still highly persuasive
As per s 5B(1) of the CLA … likelihood of harm is irrelevant, only that (unless issue is far-fetched and fanciful)

There is a ‘not-insignificant’ Foreseeability of events as they occurred is

chance of harm irrelevant to foreseeability of the risk
(Shaw v Thomas) (Doubleday v Kelly)

Causation – ss 5C, D
Need for Damage to be Recognisable by Law
- s 3 defines harm = damage recognisable
Factual Causation
Standard of proof = balance of probabilities
Must be shown that it was more than 50%
likely that D’s conduct was a necessary
condition of P’s harm
(Hotson v East Berkshire Area Health Authority)
Test used = ‘but-for test’
“Would P still suffer harm if D acted as RP would?”
(Barnett v Chelsea and Kensington Hospital
Management Committee)
Limitations of ‘but-for’ test
Mere background events should not be mistaken
for direct causes;
e.g. D asks P to meet but P is harmed on way
Difficult to use if 2+ tortious acts capable of harm;
e.g. 2 Ds shoot P, either bullet could have killed P
Both Ds argue if they had not shot him, P would still die
(March v Stramare) – parked in road + hit by drunk driver
at 1am (CN case also) Pre CLA case
s 5D may overrule this case (legislation > caselaw)
Difficulty proving D’s liability
(Mcghee v National Coal Board)
- P was employer of D, cleaning brick kiln over a few days
- P developed dermatitis caused by exposure to brick dust
- P claimed D liable for not providing showers
- Could not be proven that if P had showered straight after
working, he would not have developed dermatitis
- D found liable as no showers increased risk of dermatitis
Determining P’s actions if D was not negligent
(Chappel v Hart)
- D operated on P w/o advising risk of voice damage
- P claimed if known, surgery delayed until found best surgeon
- D found liable as P’s actions would be different)
D’s failure to advise of all risks
(Wallace v Kam)
- D operated on P w/o advising risk of nerve damage + paralysis
- P argued would not have undergone surgery if all risks known
- D not liable, court found P’s actions would not have changed
Res ipsa Loquitur
When a particular injury is enough proof that D was negligent
(Schellenberg v Tunnel Holdings Pty Ltd)
- D working in a workshop with compressed air tools
- Hose detached and P injured by trying to avoid hose
- P now unable to work, tried to sue D by res ipsa loquitur
- Held RIL could not be used as injury caused by hose separated Principles of assessment
from specific connecting device, and 3 specific principles to be met:
1.‘Absence of explanation’ of occurrence that caused injury;
2. Occurrence of such kind doesn’t ordinarily occur w/o neg.;
3. Instrument/agency that caused injury was under control of D
Scope of Liability
Did D’s scope of liability extend to harm caused - s 5C(1)(b)
Court must consider (amongst other relevant things) why
and whether responsibility for harm should or should not
be imposed on the defendant – s 5C(4)
Remoteness
Were P’s injuries too remote from D’s negligent conduct?
Test is whether P’s injuries were RF from D’s conduct
(The Wagon Mound No 1)
Novus Actus Interveniens (New Intervening Act)
D may avoid liability if a subsequent event broke chain of
causation between D’s negligent conduct and P’s injuries
(Haber v Walker)
Egg Shell Skull Rule
D will not avoid liability on basis that P only suffered injuries
as they were different in some significant way to avg person
(Nader v Urban Transit Authority of NSW)
CLA has made changes to operation of this law where P suffers a
psychiatric injury
Defences to Negligence
Contributory Negligence (CN Act) – Partial defence
(Law Reform (Contributory Negligence and Tortfeasors’
Contribution) Act 1974)
Must look a D,B,C of P-P rather than D-P
s 4(1) CN Act – Court may reduce P’s damages recoverable
CN via intoxication – Joslyn v Berryman
For causation, P’s negligence must contribute to P’s harm
(Froom v Butcher)
Apportionment (of damages to P and D)
- Causal potency (relevance of P+D’s breach to harm)
- Culpability (degree D/P derived from DOC to P)
Voluntary Assumption of Risk – Complete defence
(Volenti non fit injuria)
Elements: (Insurance Commissioner v Joyce)
- P knew of risk
- P fully appreciated (understood/recognised) risk
- P freely consented to risk
CLA s 5O – No duty to warn of obvious risk
CLA s 5H – Obvious risk and dangerous recreational activities
- ‘dangerous rec. activity’ involves ‘significant risk of physical harm’
(risk between trivial and one likely to materialise)
(Fallas v Mourlas)
CLA s 5I – no DOC owed if D warns P of risk
Joint Illegal Enterprise – Complete defence (Gala v Preston)
Remedies
Specific Damages: Can be calculated precisely (harm incurred
between accident and trial)
General Damages: Cannot be calculated precisely (future bills)
Compensatory Damages: Compensation for P’s harm
Egg Shell Skull Rule: D takes P as finds them
(Nader v Urban Transit Authority)
Indemnity Principle: P will be compensated for disadvantages
minus advantages – P is compensated not rewarded
Once and for All Rule: P only entitled to one award of damages,
which must encompass any future losses
Duty to Mitigate: D not liable for harm arising from P’s failure to
mitigate initial harm
Lump Sum Rule: P to be paid via one lump sum, and not
instalments – CLA ss 14,15 allows for ‘structured settlements’
Vicarious Liability
A form of concurrent liability – multiple tortfeasors liable for
the same damage
Often employer VL for employee’s actions
1. P must show tortfeasor committed a tort
2. P must show requisite relationship existed between
tortfeasor and D (e.g. TF was an employee)
- Multifactorial test to indicate relationship (Hollis v Vabu)
- which factors indicate relationship existed?
- e.g. how TF was paid, uniforms worn, who controls work, etc.
3. TF’s wrong must be committed during employment
- Wrong closely connected to work for employer to be liable
but no VL for intentional tort (NSW v Lepore)
- If TF is ‘being on a frolic’ (being silly/careless independently),
employer is not liable (Joel v Morison)
If employee exercises independent discretion/authority,
employer is generally not liable (e.g. police officer, pilot, etc.)
Non-Delegable Duties (NDD)
Where D has NDD, the fact that they delegated the duty is not
regarded as sufficient enough to discharge the duty
Does not mean they cannot delegate
(Northern Sandblasting Pty Ltd v Harris)
NDD arises where P is especially vulnerable and D has power in
the situation, examples include:
Hospital – Patient (Albrighton v Royal Prince Alfred Hospital)
School – School child (Commonwealth v Introvigne)
Employer – Employee (Kondis v State Transport Authority)
Employer – Employee – Personal injury risk re work conditions
(Wilson’s and Clyde Coal Co v English)
Occupier – Visitor – re things under control may escape + harm
(Burnie Port Authority v General Jones Pty Ltd)
NDD does not arise in cases of:
Landlord – Tennant (Northern Sandblasting v Harris)
Statutory road authorities’ duty in relation to work on highway
(Leichhardt Municipal Council v Montgomery)
Private Nuisance
An unreasonable interference, created by D, with a P’s use or
enjoyment of an interest in land capable of protection
(Hargrave v Goldman)
1. Unreasonable Interference
Interference with use/enjoyment of land must be unreasonable
Utility Damage – Interference to P’s comfort and
convenience in the enjoyment or utility of land
Physical/material damage – Physical damage caused to P’s
land, including things on P’s land
Encroachment – Trespass to land
An unreasonable interference must be substantial, not trivial
(Munro v Southern Dairies Ltd)
Must discuss factors affecting reasonableness ->
Remedies Ctd.
Compensatory – Designed to put P in position if harm not occur
Non-economic loss (general)
Personal Injury
- Pain and suffering
May be no damages if unconscious – no pain if unaware
(Skelton v Collins)
- Loss of amenity (expectation/enjoyment of life)
(Sharman v Evans)
Lifespan shortened, P entitled monetary compensation
If P aware, may be entitled to pain + suffering damages also
CLA thresholds and caps for non-economic loss
Property Damage
- Diminution – loss of value due to damage inflicted
- Restoration – If property completely destroyed, restoration is
the only reasonable form of compensation
(Evans v Balog) – Diminution and restoration
Economic-Loss
Lost earnings to date of trial (specific)
Loss of capacity to earn (general)
Consequential economic loss (loss as a result of harm)
Pure economic loss (direct loss, e.g. following financial advice)
Nominal Damages – Acknowledge D committed an offence
P’s legal right has been infringed but no other damage
(often when torts are actionable per se
Aggravated Damages – D humiliated P (Myer Stores Ltd v Soo)
Exemplary/Punitive Damages – Punish the D’s conduct
Injunction – writ compelling D to stop causing or refrain from
causing interference
- Mandatory: Compels D to remove source of interference
- Prohibitory: Compels D to stop interference
Declaration – A court order stating both parties’ legal rights
Factors Affecting Reasonableness
1. Locality
Must regard character of locality + standard of comfort expected
by those in locality
(Gales Holdings Pty Ltd v Tweed Shire Council)
2. Extent and Intensity
Must be extensive + intensive enough to be unreasonable
(Feiner v Domachuk) – also prima facie basis
3. Duration, Time and Frequency
Time (Wherry v KB Hutcherson)
Duration and frequency (Seidler v Luna Park Reserve Trust)
4. Undue Sensitivity
“A man who carries on an exceptionally delicate trade cannot
complain because it is injured by his neighbour doing something
lawful on his property, if it is something which would not injure
anything but an exceptionally delicate trade” (Robinson v Kilvert)
5. Malice, on the part of D
Malice may render a reasonable act as unreasonable
(Hollywood Silver Fox Farm v Emmett)
6. Presence of Physical/Material Damage
Damage to P’s land is strong indicator of interference
(St. Helen’s Smelting Co v Tipping)
Proof must be substantial and not trivial, also P’s onus
(Halsey v Esso Petroleum Co Ltd)
Private Nuisance Ctd.

2. Interference with Interests in Land Capable of Protection

a) Occupation – Use and enjoyment of land via occupation
- Proprietary right to occupation through ownership (Halsey v Esso)
- Proprietary right to occupation through lease of premises (Robinson v Kilvert)
- Occupation for a business (Wherry v KB Hutcherson)
b) Access to Land – Free access to land is an interest capable of protection
- Use of P’s land at D’s invitation is a nuisance (Deasy Pty Ltd v Monrest Pty Ltd)
- Obstruction of access to land is a nuisance (Toll Transport Ltd v National Union of Workers)
c) View of a Plaintiff’s Land – NOT an interest capable of protection
(Victoria Park Racing & Recreation Grounds Co Ltd v Taylor)
d) Interference from Structures on D’s Land
- Law is uncertain in this area “For nuisance to be present, will generally arise from emanation from D’s land e.g. dirt, smoke”
(Hunter v Canary Wharf)
3. Title to Sue
Plaintiff must have an adequate interest in land to have a title to sue
a) Exclusive Possession
- Owning land (Oldham v Lawson)
- Gaining a exclusive possession through a wrong (Newington v Windeyer)
b) Mere Licensees
- Traditionally title to sue, but some cases suggest this position may change (Khorasandjan v Bush)
4. D’s Liability
Unclear whether fault of D is required to give rise to liability
HCA held “Fault of some kind is almost always necessary” (Elston v Dore)
“Must be something more than mere harm don’t to P’s property to make D responsible.
Deliberate act or negligence is not an essential ingredient, but some degree of personal responsibility is required”
(Sedleigh-Denfield v O’Callaghan)

Defences to Nuisance
Onus of proof lies on D to prove on balance of probabilities
Statutory Authority
Legislation authorised nuisance (Gales Holdings Pty Ltd v Tweed Shire Council)
1. Nuisance authorised by legislation
Legislation must specifically say such an act of nuisance is acceptable (Southern Properties (WA) Pty Ltd)
2. Nuisance Could Not be Reasonably Avoided
D had to act and could not do so in a reasonable manner as to avoid causing nuisance (Southern Properties (WA) Pty Ltd)

Prescription
Generally, if nuisance has occurred for over 20 years without an objection, the D may be able to claim an easement over land by
prescription; therefore, acquiring the right to commit the nuisance (Sturges v Bridgeman)

Coming to a Nuisance
This is NOT a defence (Sturges v Bridgeman)

Mental Harm
Pure Mental Harm – Occurs when only injury suffered by P is mental harm – s. 5S(1)
Consequential Mental Harm – Mental harm which is a consequence of physical harm – s. 5S(3)

Limiting Factors of Mental Harm (Jaensch v Coffey)

Close relationship between P and whoever suffered injury – s. 5S(3)
P personally perceives aftermath – s. 5S(2)(b)
Sudden shock induced by perception/distressing phenomenon – s. 5S(2)(a)

Elements – s. 5S s 5Q – Definitions
Suffered a psychiatric illness; s. 5S(1) s 5R – Application of test
RF they would suffer harm; s. 5S(1) (Tame v New South Wales) s 5S – DOC Test
Suffered a ‘sudden shock’; s. 5S(2)(a) s 5T – Liability for pecuniary loss for consequential harm
Either ‘directly perceived’ a distressing phenomenon or it’s ‘immediate aftermath’. s. 5S(2)(b) / (3)