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SUBJECT OUTLINE 70311 Torts Course area UTS: Law Delivery Spring 2014; City Credit points 8cp

70311 Torts

Course area

UTS: Law


Spring 2014; City

Credit points



70120c Legal Method and Research OR 70102 Foundations of Law OR C30022 Jumbunna Unistart

These requisites may not apply to students in certain courses. See conditions.

Result type

Grade and marks

Subject coordinator

Name:Tim Paine Position: Lecturer, UTS Faculty of Law Room: CM05B.449 Email: Phone: (02) 9514 3161 Fax: (02) 9514 3400

Teaching staff

Name: Sam Blay Position: Professor, UTS Faculty of Law Room: Mary-Ann House, 645 Harris St Ultimo, Room CH1.03.04 Email: Phone: (02) 9514 9659 Fax: (02) 9514 3400

Name: Margaret Harvey Position: Casual Academic, UTS Faculty of Law Room: CM5B.218 Email: Phone: (02) 9514 3109/3432 Fax: (02) 9514 3400

Name: Terri Libesman Position: Senior Lecturer, UTS Faculty of Law Room: CM05B.410 Email: Phone: (02) 9514 3771 Fax: (02) 9514 3400

Name: Pam Stewart Position: Senior Lecturer, UTS Faculty of Law Room: CM05B.421 Email: Phone: (02) 9514 3119 Fax: (02) 9514 3400

Subject description

This subject covers the functions and aims of the law of torts. The law of torts deals with claims for redress for civil

wrongs. Students examine the nature of tortious liability in the light of a selection of specific torts, namely, trespass to the person, goods and land; detinue and conversion, the action on the case for wilful injuries; negligence; nuisance and statutory workers compensation and motor vehicle accident schemes. Negligence is the most significant tort and it

is the primary focus of this subject. Students engage with and develop an understanding of the common law

development of doctrine and rules through reading cases. In 2002 and 2003 there were significant legislative reforms

to tort law and the impact of this legislation, in particular the Civil Liability Act 2002 (NSW), and its relationship to the

common law is examined.


law of torts subject is required for admission as a legal practitioner in all Australian jurisdictions. This subject is part


the core program for the Bachelor of Laws and Juris Doctor and provides students with foundational knowledge

required for more advanced 'private law' subjects in the law degree. Subjects covering areas such as commercial and corporate law, equity and remedies also require a sound knowledge of tort law as a basis for the legal concepts learned in those subjects.

Subject objectives

Upon successful completion of this subject students should be able to:

1. Understand and apply the key concept of the common law of torts and the Civil Liability Act 2002 (NSW), with reference to the basis of liability, the forms of action in the law of torts, the interests protected by the law of torts and the adaptability of tort law to the changing needs and values of society

2. Recognise the perspectives of various stakeholders and how the law of tort attempts to reconcile these

3. Apply reasoning and research from recommended sources to generate appropriate responses

4. Engage in critical analysis and make reasoned choices amongst alternatives

5. Develop a logical and justifiable argument

6. Accurately assess their capabilities and performance

7. Undertake and initiate self-directed work and learning

This subject also contributes specifically to the development of the following graduate attributes:

Ethics and Professional Responsibilityto the development of the following graduate attributes: A capacity to value and promote honesty, integrity,

A capacity to value and promote honesty, integrity, accountability, public service and ethical standards including an

understanding of approaches to ethical decision making, the rules of professional responsibility and, an ability to reflect upon and respond to ethical challenges in practice. (2.0)

Critical Analysis and Evaluationupon and respond to ethical challenges in practice. (2.0) A capacity to think critically, strategically and

A capacity to think critically, strategically and creatively including an ability to identify and articulate legal issues,

apply reasoning and research, engage in critical analysis and make reasoned choices. (3.0)

Self management The ability to implement appropriate self-management and lifelong learning strategies including initiating self-directed The ability to implement appropriate self-management and lifelong learning strategies including initiating self-directed work and learning, judgment and responsibility, self assessment of skills, personal wellbeing and appropriate use of feedback and, a capacity to adapt to and embrace change. (6.0)

Teaching and learning strategies

Strategy 1: Small group classes (4 hours per week) Strategy 2: Preparation/independent study Strategy 3: Participation in class discussion Strategy 4: Participation in class problem solving Strategy 5: Research and essay writing Strategy 6: Formal examination

Subject Delivery GROUPS The subject will comprise two (2) classes per week, each of 2 hours duration. The learning in these classes is discussion based. Students will be assigned to a group and must stay in their assigned group throughout the course. Classes will be discussion groups where substantive law and problems will be discussed in detail. Students will be required to complete essential reading before each class in order to be able to participate fully in discussion. Classes will not be taped. UTS Online will be used in this subject for the purposes of making announcements only.

EXPECTATIONS OF STUDENT PREPARATION AND PARTICIPATION Because classes are discussion groups, students MUST complete ALL ESSENTIAL READING FOR EACH WEEK before class. Students will be required to answer questions in class and to participate usefully in class discussions. Students will be asked direct questions about the materials and failure to have read and reflected on materials will be detrimental not only to the individual’s learning, but to the group as a whole. In extreme cases students who are manifestly unprepared may be asked to leave classes.

Students should be aware that the reading for this subject is demanding. For each 2 hour session there is at minimum 50 pages of reading. In some weeks reading will be considerably more than this where an important High Court decision needs consideration. Do NOT expect to be able to pass this subject without having done the required reading.

The timetabled activities for this subject can be found on the UTS timetable online at Students enrolled in this subject can view their personalised timetabled in My Subject Activities online at

There are 4 Self Learning Modules in this subject. These Modules will form part of the assessment for the examination. The Modules will not be covered in class time. Please note that you are NOT expected to read outside the subject materials, in particular whilst you should understand the scheme of the workers compensation legislation and the motor accidents legislation in NSW you will not be expected to be familiar with the detail of specific sections.



Introduction; Trespass to the Person (p 5)


Trespass to Land; Trespass to Goods; Defences to Intentional Torts (p 8)


Introduction to Negligence; Duty of Care and Public Policy (p 11)


Breach of Duty (p 14)


Proof of Breach & Causation (p 17)


Remoteness of Damage (p 19)


Defences to Torts involving Negligence (p 21)


Categories of Duty of Care – including the duty of manufacturers, occupiers, employers and motorists, the duty owed to rescuers and to unborn children and their parents, and mental harm/nervous shock injuries (p 23)


Pure Economic Loss; Negligent Misstatement (p 28)


Omissions; Statutory Authorities (p 31)


Vicarious Liability; Non-Delegable Duties; Concurrent & Proportionate Liability (p 34)


Tortious Remedies; Assessment of Damages (p 36)

Self-Learning Modules and Self-Management Skills

The following topics are self-learning modules:(p 47)

1. Detinue & Conversion (p 49)

2. Statutory Regimes relating to personal injury in NSW — Workers Compensation and Motor Accidents (p 53)

3. Nuisance (p 59)

4. Death Claims (p 60)





Week 1

28 Jul




Stewart & Stuhmcke, Australian Principles of Tort Law, Chapters 1, 2 and 3.

Scott v Shepherd (1773) 96 ER 525 (in Book of Readings)

Luntz & Hambly, pp 65-96 & 608-654 OR the following cases:

Hutchins v Maughan [1947] VLR 131 (Austlii)

Williams v Milotin (1957) 97 CLR 465 (Austlii)

McHale v Watson (1964) 111 CLR 384 Judgment of Windeyer J esp. [5] – [10]. (Austlii)

Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 Judgment of Sheller JA esp. [49]-[59] (Austlii)

Rozsa v Samuels [1969] SASR 205 in book of readings.

Zanker v Vartzokas (1988) 34 A Crim R 11 Judgment of White J, Supreme Court of S.A. (LexisNexis)

Bird v Jones (1845) 7 QB 742 Judgment of Patterson J (Westlaw UK or

Symes v Mahon [1922] SASR 447 Murray CJ in book of readings.

McFadzean v Construction Forestry Mining & Energy Union (2007) 20 VR 250 (Austlii)

The Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 (Austlii)

Herd v Weardale Steel Coke & Coal Co [1915] AC 67 Judgment of Viscount Haldane only (Westlaw UK or

Myer Stores v Soo [1991] 2 VR 597 Judgment of Murphy J (LexisNexis)

South Australia v Lampard-Trevorrow [2010] SASC 56 (Austlii)

In the first class the following issues will be discussed:

1. How does the Law of Torts differ from (a) Criminal Law? and (b) Contract Law?

2. What interests does the Law of Torts protect and how does it protect these?

3. What are the aims of the law of tort?

4. What were the reasons for and the nature of the “Tort Law Reforms” enacted in all

Australian States and Territories in 2002 and following?

Come to the second class prepared to answer the following questions about the trespass torts:


1. For the purposes of battery, what is the act that must be intended?

2. To what extent is the element of hostility relevant in an action for battery?


Consider the case of Scott v. Shepherd. Do you agree with the reasoning of the

Courts in this case on the issue of whether the ‘directness’ requirement was satisfied?


4. How does the tort of assault differ from battery?

5. Why is the knowledge of the plaintiff in a case of assault essential?

6. Critically examine the view that words alone do not constitute assault.

False Imprisonment

7. 'False imprisonment, a trespass, does not lie unless the defendant directly and

intentionally caused the plaintiff's bodily restraint. If done negligently, like carelessly locking someone inside a library or freezer, the plaintiff must prove actual injury' to be successful in his or her action.’ Fleming, The Law of Torts, 8th Ed, 1992, at 30. Do you agree with this view? Why?

8. To what extent is knowledge of confinement essential in an action for false


Legal Problem Solving

One of the objectives of this course is to enable students to develop and demonstrate the ability to apply reasoning and research from recommended sources, to engage in critical analysis and to develop a logical and justifiable argument in response to a tort problem. Students need to identify, comprehend and rate relevance and importance of legal and factual issues. One approach to legal problem solving maybe stated as follows:

I - Identify the issues raised by the problemapproach to legal problem solving maybe stated as follows: - Research/ review the relevant law R

- Research/ review the relevant lawas follows: I - Identify the issues raised by the problem R - Apply/ Argue the


- Apply/ Argue the lawraised by the problem - Research/ review the relevant law R A - Conclude as to


- Conclude as to how a court might rule on the issue.Research/ review the relevant law R - Apply/ Argue the law A C This approach, using


This approach, using four basic steps, can be applied to most legal argument (oral or written) and writing whether an essay, an exam answer, an advice or even a judgment.

Some suggested reading materials on legal problem solving skills:

Cook, Creyke, Geddes, Hamer & Taylor, Laying Down the Law, 2012, 8th ed, LexisNexis. Laying Down the Law, 2012, 8th ed, LexisNexis.

Keyzer, Legal problem Solving:A Guide for Law Students , 2003, 2nd ed, LexisNexis. Legal problem Solving:A Guide for Law Students, 2003, 2nd ed, LexisNexis.

Problem Question 1

May left her car parked in the driveway of her home. She left all the windows down and her sleeping baby, Jane, in the baby capsule in the rear seat. Brett stole the car not noticing the child in the rear seat. After driving some way and hearing baby Jane’s cries, Brett abandoned the car in an area of bushland some kilometres away. The car and Jane were not found for 12 hours. When found, Jane was hungry and slightly dehydrated but otherwise unharmed.

Does Jane have an action in tort against Brett and if so, what kind of damages might be awarded?

Problem Question 2

Tom is the president of the students’ association at Metropolitan University. Recently, the National Students Association in conjunction with the Academics’ Union called a National Strike Day to protest at federal government funding cuts for tertiary education. The strike day coincided with a visit to Metropolitan Uni by the Prime Minister. Tom and his associates organised the protests at Metropolitan Uni.

When the Prime Minister’s car entered the main gate of the University, Tom, Kim and a large group of students spat at the car and threw rotten tomatoes and eggs at it. The driver of the car, who was having difficulty negotiating a way through the protesters, was driving at about 10 kilometres an hour. When Simon, a student waving a placard, ran in front of the car, the driver accidentally put his foot on the accelerator instead of the brake, running Simon down.

Kim ran to Simon’s aid but was grabbed by the arm by one of the PM’s bodyguards. She yelled, “let me go, you gorilla” and the bodyguard replied, “if you don’t get out of here you’ll wish you hadn’t said that, little girl. How would you like to lose a few of those movie star teeth?”

When the PM and the official party arrived at the great hall a group of students was waiting to shout their disapproval. Bob and Don, two of the University’s security personnel, barred the way of the demonstrators into the main hall. The security men simply stood still, arms crossed over their chests, saying nothing, blocking the doorway, so as to prevent anyone entering or leaving the building. The students outside continued to shout their disapproval of the government but did not try to enter the blocked doorway. They claimed that they were afraid of what the security officers might do if they tried to enter.

Lee, one of the students who had gone into the hall before the PM arrived, tried to leave but Bob & Don stood silently in the doorway, ignoring Lee’s requests for them to move so as to let him out. Lee pushed Bob in the back saying “let me out you thug” but Bob did not reply or move. Lee was not able to leave the Hall till after the official function was over an hour later. Security personnel similarly blocked other exits from the hall.

Advise all parties as to rights and liabilities in tort.

​Readings which may be helpful for Week 1 but not prescribed:

Blay S, ‘Onus of Proof of Consent in Action for Trespass to the Person’ (1987) 61 Australian Law Journal 25

Buti A, ‘The Stolen Generation and Litigation Revisited’ (2008) 32(2) Melbourne University Law Review 382

Week 2

4 Aug




Trespass to Land and Trespass to Goods

Stewart & Stuhmcke, Australian Principles of Tort Law Ch 5 and Ch 6 (6.1.1 to 6.4.5 only)

Luntz & Hambly, Ch 12 OR the following cases:

New South Wales v Ibbett (2006) 229 CLR 638 [8] – [32] (Austlii)

Halliday v Nevill (1984) 155 CLR 1 Gibbs C.J., Mason, Wilson And Deane JJ [5] – [9] and BrennanJ (dissenting) [19]-[21]. (Austlii)

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 (LexisNexis)

Newington v Windeyer (1985) 3 NSWLR 555 Judgment of McHugh JA pp 563-4 (LexisNexis)

Star Energy Weald Basin Limited and another v Bocardo SA [2011] 1 AC 380 (Judgment of Lord Hope DP) Bailii

Bernstein (Baron) v Skyviews & General Ltd [1978] QB 479 Judgment of Griffiths J (

LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 pp 495-497 only (LexisNexis)

TCN Channel Nine Pty Ltd v Anning (2002) NSWLR 333 Judgment of Spigelman CJ [23] – [62] and [99] – [110]. (Austlii).

Defences to intentional torts

Part 7 of the Civil Liability Act 2002 (NSW) especially section 52

Stewart & Stuhmcke, Australian Principles of Tort Law Chapter 7

Luntz & Hambly, Chapter 13 OR the following cases:

Secretary, Department Of Health And Community Services v. J.W.B. And S.M.B. (Marion’s Case) (1992) 175 CLR 218 Judgments of Brennan CJ at [1]-[6] and McHugh J at [4]-[7]. Austlii.

Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112; [1985] UKHL 7, (BAILII)

McNamara v Duncan (1971) 26 ALR 584, pp 587-590 (LexisNexis).

Royal Alexandra Hospital v Joseph & Ors [2005] NSWSC 422 (Austlii)


X v The Sydney Children’s Hospitals Network [2013] NSWCA 320 (Austlii).

Wilkinson v Downton

Stewart P & Stuhmcke A, Australian Principles of Tort Law Ch 4.

If time permits, Luntz & Hambly pp 654-661 OR the following cases:

Carrier v Bonham [2002] 1 Qd R 474 judgment of McPherson JA [22]-[37]. (Austlii)

Wainwright v Home Office [2004] 2 AC 406 Judgment of Lord Hoffman [36]-[47]. (BAILII: [2003] UKHL 53 )

Nationwide News Pty Ltd v Naidu [2007] NSW CA 377 Judgment of Spigelman CJ [61]-[83]. (Austlii)

Be prepared to answer the following questions in your seminar:

Trespass to Land

1. Is trespass to land actionable ‘per se’?

2. What are the elements of the tort of trespass to land? Explain particularly the

concept of land; what kind of conduct would constitute a trespass

3. What title must the plaintiff have in order to have standing to sue in trespass to


4. Read the extract from Halliday v Nevill (1984) 155 CLR 1 Gibbs C.J., Mason,

Wilson and Deane JJ [5] – [9] and BrennanJ (dissenting) [19]-[21] (Austlii) and consider whether you agree with the outcome of the case?

5. Does the tort of trespass to land adequately protect a person’s privacy?

Trespass to Goods

6. Is trespass to goods actionable ‘per se’? What are the elements of the tort of

trespass to goods?

7. What title must the plaintiff have in order to have standing to sue in trespass to

goods? Note: There are four exceptions including the gratuitous bailor at will - see Penfolds Wines v Elliot (1946) 74 CLR 204, 208

Defences to Intentional Torts

8. Has effective consent been given in the following cases?

(a) A 10-year-old child is taken to the doctor by his mother for a Hepatitis B

vaccination. In the doctor’s surgery the child says to the doctor “Don’t you stick that needle in my arm.” The child’s mother says to the doctor as she restrains her son “Quickly give him the jab – he’ll get over it”. The doctor gives the injection – is this a trespass to person?

(b) Emily has taken up soccer as a hobby. She is dribbling towards the goal when

she is violently kicked in the knee by an opposing player. Emily kicks the player back saying “If you do that again I’ll come and get you after the game”. Discuss the torts implications.

9. How does self-defence under ss 52 and 53 of the Civil Liability Act 2002 (NSW)

differ from self-defence at common law? Are both defences available?

Wilkinson v Downton

10. Explain the difference between an action for trespass and an action on the case.

11. Explain the elements of the cause of action in Wilkinson v Downton.

Problem Question

Frank’s wife and child were recently tragically killed by a crocodile attack whilst the family was on holiday in the Northern Territory. The evening Frank returned to his Sydney home from Darwin, Lex, a journalist for the TV current affairs show “This Week” and Andy, a cameraman, knocked on Frank’s front door, camera rolling. They sought an interview with Frank who refused as he was too distraught to speak to anyone. He shut the door in their faces saying they were “scum feeding on other people’s misery”.

Lex rang the doorbell again and feigning sympathy said, “I d on’t want to disturb you. You have every right to be left alone. But, I was wondering if I could use your phone to call my studio to tell them that there will be no interview and telling them that they must not harass you any further. If I don’t contact them they’ll send another crew. They are determined to get your story. My mobile phone’s died.”

Frank reluctantly agreed to let Lex and Andy into the house. Andy secretly filmed the house and Frank as they entered and as Lex made sympathetic comments to Frank, Andy filmed Frank’s responses. When Frank realised that Andy was filming and that Lex was attempting to remove from a frame some photos of Frank’s wife and child, Frank became very angry and upset and ordered them out of the house. Andy kept filming as a distraught, weeping Frank pushed him and Lex out of the house.

The next day Frank saw a “This Week” helicopter hovering above his property at a height of about 20 – 30 metres. Andy was filming the house and garden from the chopper.

Frank seeks your advice as to whether he has any recourse against the TV station responsible for “This Week” and Lex and Andy and whether he can prevent “This Week” from using the film taken by Andy and from the helicopter.

​Readings which may be helpful for Week 2 but not prescribed:

Blay S, ‘Onus of Proof of Consent in an Action for Trespass to the Person’ (1987) 61 Australian Law Journal 25

Blay S, ‘Provocation in Tort Liability: A Time for Reassessment’ (1988) 4 Queensland University of Technology Law Journal 151

Butler D, ‘A Tort of Invasion of Privacy in Australia?’ (2005) 29 Melbourne University Law Review 339

Lewis J, ‘Privacy: A Missed Opportunity’ (2005) 13 Tort Law Review 166

Wotherspoon S, ‘Resuscitating the Wilkinson v Downton test in Australia’ (2011) 85 Australian Law Journal 37

Yeo S, ‘Determining Consent in Body Contact Sports’, (1998) 6 Tort Law Review 199

Australian Law Reform Commission Report 108 Privacy

Week 3

11 Aug




Stewart & Stuhmcke, Australian Principles of Tort Law, Ch 8 & Ch 16 (16.1 only)

Book of Readings:

Ipp DA, Cane P, Sheldon D & Macintosh I (2002), Review of the Law of Negligence Report (the ‘Ipp Report’), Commonwealth of Australia Review of the Law of Negligence Report (the ‘Ipp Report’), Commonwealth of Australia

Hon JJ Spigleman, AC, ‘Tort Law Reform: An Overview’ (2006) Tort Law Review 5 Tort Law Review 5

Prof. EW Wright, National Trends in Personal Injury Litigation: Before and After Ipp, 26 May, 2006 National Trends in Personal Injury Litigation: Before and After Ipp, 26 May, 2006

Michael Pelly, “Top Judge Critical of Negligence Laws” Sydney Morning Herald , 15 September 2005 Sydney Morning Herald, 15 September 2005

Michael Pelly, “Judge Joins Attack on Insurers over Personal Injury” Sydney Morning Herald , 23 March 2005 Morning Herald, 23 March 2005

Cane, Peter, The new Face of Advocates Immunity (2005) 13 Torts Law Journal Torts Law Journal


Lamb A and Littrich J, Lawyers in Australia, The Federation Press Sydney 2007 Chapter 13 pp238-254Face of Advocates Immunity (2005) 13 Torts Law Journal 93 Luntz & Hambly pp101-107 and pp115-175

Luntz & Hambly pp101-107 and pp115-175 OR the following cases:

Donoghue v Stevenson [1932] AC 562 Judgments of Lord Atkin and Lord Macmillan. (BAILII: [1931] UKHL 3)

Levi v. Colgate Palmolive (1941) 41 SR (NSW) 48 in Book of Readings

Sullivan v Moody (2001) 207 CLR 562 Unanimous Joint Judgment [23]-[64] (Austlii)

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. Dissenting Judgment of Kirby J which describes the Australian search for principle on the Duty of Care question at [209] – [212] and [229]-[244] (Austlii).

Chapman v Hearse (1961) 106 CLR 112. (Austlii).

Seltsam Pty Ltd v McNeill [2006] NSWCA 158 Judgment of Bryson JA at [9] and [28]-[40] (Austlii)

Agar v Hyde (2000) 201 CLR 552 Judgment of Gaudron, McHugh, Gummow & Hayne JJ at [67]-[93] (Austlii).

Haley v London Electricity Board [1964] 3 All ER 185 Judgment of Lord Reid only. (BAILII)

D’Orta- Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Judgment of Gleeson CJ, Gummow, Hayne & Heydon JJ at [25]-[91] (Austlii).

Be prepared to answer the following questions in your seminar:

1. What were the main purposes of the Tort Law Reforms enacted in the Civil

Liability Act in 2002 in NSW?

2. What is Lord Atkin’s “Neighbour Principle” as stated in Donoghue v Stevenson?

Was that principle part of the Ratio in the case?

3. What are the “elements” of the tort of negligence?

4. Explain ‘reasonable foreseeability’ and what is meant by ‘unforeseeable plaintiff’.

To what extent do the cases of Haley v London Electricity Board and Levi v. Colgate Palmolive help in your understanding of this concept?

5. When will a duty of care be imposed in a novel fact situation? Does the joint

judgment in Sullivan v. Moody (2001) 207 CLR 562 assist?

6. What is the role of “public policy” in the duty of care question?

7. What public policy considerations were highlighted by the decision in Donoghue v


Problem Question

Graduate Attribute 2 - Ethics & Professional Responsibility

A capacity to value and promote honesty, intergrity, accountability, public

service and ethical standardsincluding an understanding of approaches to

ethical decision making, the rules of professional responsibility and an ability

to reflect upon and respond to ethical challenges in practice.

Recognise the perspectives of various stakeholders and to satisfactorily reconcile these differing perspectives.

Consider the problem which follows and which relates to the duty of care owed by a lawyer to a client​

Jack was represented by his solicitor Reg, in relation to a personal injury claim. Reg had instructed a barrister to advise on the claim. In due course the matter was listed for hearing. About two weeks before the hearing the defendants made an offer of settlement. Jack’s solicitor and barrister advised him that he had a very strong case and that, although there was no certainty that he would win, they were quite confident that he would be successful and, if he were successful, he would be awarded an amount substantially greater than the offer. Jack rejected the offer and the matter went to hearing. At the hearing, the judge found in favour of the defendants, relying on a Court of Appeal decision given three weeks before the hearing in a matter where the facts were virtually identical to Jack’s case and the plaintiff was also unsuccessful. Jack was ordered to pay the defendant’s costs. Jack comes to you to seek advice about a possible negligence action against Reg and/or the barrister.

1. Does Jack have any basis for alleging negligence?

2. What are the boundaries of advocates’ immunity as clarified in DÓrta - Ekenaike?

3. What are the arguments for and against the retention of the advocates’ immunity?

4. What are the perspectives of the various stakeholders in the problem and how

does the law of tort attempt to reconcile these.

5. In his Judgment in the D’Orta case, Kirby J sets out the events which led to the

original guilty plea by Mr D’Orta Ekenaike and the circumstances in which the legal advice (that was erroneous) was given to him:

The applicant gave evidence before Judge Duckett. He deposed to the circumstances of the plea. He said that, on six occasions, he had given a private solicitor, whom he initially retained, consistent instructions that he proposed to plead not guilty. The judge accepted that he had given the same instructions to the VLA solicitor when she took over responsibility for his defence. Her instructions to counsel at the time stated that "the accused is adamant" that he is not guilty. However, the barrister expressed "a firm view" that the applicant had "no defence to this charge". The applicant was not comfortable with that advice.

At first, it appeared that the applicant's defence would be reserved to the trial, as was his right. However, on the day of the committal hearing, in an interview room at the Melbourne Magistrates' Court, a conference took place

between the barrister, the VLA solicitor and the applicant. Judge Duckett explained:

"I was told that counsel said strongly that there was no defence to the charge and the accused said a number of times that he was not guilty.

His Legal Aid solicitor said in evidence that she pressured him to plead guilty because, as she saw it, he would then get the reward of a shorter term of imprisonment or a benefit in terms of sentence as a result of such an early plea. She said that she was instrumental in the accused's failure to reserve his plea at committal. I also note that, whilst this conference was being held at the court, the prosecuting

authorities interrupted twice

defence. It does appear that this was a highly charged situation in which the accused was asked to give his instructions."

to try to get an early decision from the

The judge proceeded to describe the factual conflict concerning the existence or absence of consent on the part of the complainant, and the existence or absence of a belief on the part of the applicant that the complainant was consenting to sexual intercourse with him. The applicant believed that there had been consent to sexual intercourse with him, and that that was a reasonable belief "because of a measure of foreplay that took place between them before penetration". Judge Duckett went on:

"For counsel to say in these circumstances that there is no defence to this charge is patently not correct, and I assume that what counsel intended to say was that the defence that was open to the accused was a defence that will be difficult to establish."

During the discussions with the barrister and the VLA solicitor, the applicant telephoned his former private solicitor to seek her advice. Understandably, according to the judge, as she was no longer involved in the matter, she was unable to help him. Also understandably, the applicant was affected by what the VLA solicitor and the barrister told him before his plea was taken. Judge Duckett concluded:

"I am satisfied that the plea that was entered was as a result of considerable pressure applied by the accused's previous legal advisers and that it could well have been given in the mistaken belief that the accused had no defence in law to the charge of rape.”

Per Kirby J at [233]-[236].

Consider the perspectives of the parties to this case. Does the law of tort adequately reconcile these?

Readings which may be helpful for Week 2 but not prescribed:

Cases on lawyers’ professional liability

Curnuck v Nitschke [2001] NSWCA 176

Hawkins v Clayton (1988) 164 CLR 539

Heydon v NRMA Ltd [2000] NSWCA 374

Cases on advocates immunity

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 (Austlii)

Giannarelli v Wraith (1988) 165 CLR 543

Craddock G and Herbert-Lowe S, ‘Reliance on Counsel, Does it offer protection to solicitors against negligence claims?’ (2008) 46 (5) Law Society Journal, 49-55.

Week 4

18 Aug




Sections 33 & 34 Interpretation Act 1987 (NSW) - You will need to refresh your knowledge of the rules of statutory interpretation in order to best be able to understand and apply the Civil Liability Act 2002 (NSW). You should pay particular attention to the question of what extrinsic material may be used in an aid to interpret the Act.

Sections 5B & 5C Civil Liability Act 2002 (NSW) - These sections provide a statutory formulation of breach of duty which relies heavily on the common law. Many of the cases referred to this week, whilst not decided with reference to the section, are considered by the courts in interpreting the legislative provisions.

Sections 5O & 5P Civil Liability Act 2002 (NSW) regarding a standard of care for professionals.

Stewart & Stuhmcke, Australian Principles of Tort Law Ch 9.

Luntz & Hambly, [3.1.9] OR the following case:

Shaw v Thomas [2010] NSWCA 169 paras [42]-[62] (Austlii)

Luntz & Hambly Chapter 3, pp176-237 OR the following cases:

Bolton v Stone [1951] AC 850 Judgment of Lord Radcliffe only (BAILII: [1951] UKHL


Wyong Shire Council v Shirt (1980) 146 CLR 40 Judgment of Mason J only (Austlii)

Road and Traffic Authority of NSW v Dederer (2007) 238 ALR 761 Judgment of Gummow J only. (Austlii)

Paris v Stepney Borough Council [1951] AC 367 Judgment of Lord MacDermott only (BAILII: [1950] UKHL 3)

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Judgment of Gummow & Hayne JJ at [193]-[204]. (Austlii)

NSW v Fahy (2007) 232 CLR 486 Judgment of Gummow & Hayne JJ [18]-[80] (Austlii)

McHale v Watson (1966) 115 CLR 199 Judgment of Kitto J (Austlii)

Rogers v Whitaker (1992) 175 CLR 479 Judgment of Mason CJ, Brennan, Dawson, Toohey & McHugh JJ [5]-[21]. (Austlii)

Imbree v McNeilly [2008] HCA 40 Judgment of Gummow, Hayne & Kiefel JJ at [27]- [97] (Austlii).

Parker W, ‘The Reasonable Person: A Gendered Concept?’ (1993) 23(2) Victoria University of Wellington Law Review 105-112.

Be prepared to answer the following questions in your seminar:

1. Explain section 5B of the Civil Liability Act. Compare Bolton v Stone with Shaw v


2. What is a reasonably foreseeable risk and how is a ‘not insignificant’ risk different?

3. Last month Jessica, who was 8, decided to use the matches kept under the sink

at home to light the garden rubbish which had been left in the backyard. She believed that this was helping her parents and thought no one was around. The fire got out of control and burnt down the next-door neighbour’s shed. Ron, the next-door neighbour, was injured in the fire. Will Ron be able to recover?

4. Ron is taken to the local hospital where a Dr Sim examines him. Dr Sim fails to ask Ron whether he has allergic reactions to medication, and fails to warn Ron that in 1 in 16000 instances a person will have a reaction to penicillin. Ron is violently ill after being given penicillin. Advise Ron.

Problem Question

Tamara Natural Juice Limited (TNJL) manufactures bottled fruit juice. To enhance the natural flavour of the product, the company uses the well known pasteurisation process and avoids using any artificial chemicals or preservatives. This has the additional benefit of avoiding health problems associated with consumption of artificial substances. Indeed the company has become famous for its “no preservatives added” approach to its products.

The pasteurisation process used by the company involves heating each bottled product to a temperature of 75 degrees Celsius before the bottles are sealed. The pasteurisation and sealing processes are very crucial in the manufacturing process because they prevent any yeast bacteria from entering or staying in the juice. Where any yeast bacteria enters and survives in the juice, the bacteria could cause the juice to ferment. The gas that is built up in the fermentation process could have the effect of causing the bottle to explode after a period of time. However it is generally accepted by manufacturers in the fruit bottling business that this type of occurrence is rare and is only likely to occur in .02% of cases.

In a CSIRO report on the pasteurisation of fruit juices, scientific experts indicated that “even though the occurrence is most uncommon, it can be avoided altogether if the manufacturers heat up their products to a minimum temperature of 85 degrees.” The Kirsten Report, as the CSIRO report is called, also indicates that in any case, the risks associated with the occurrence could be reduced if manufacturers used plastic containers instead of glass.

When the Kirsten Report was released in June 2011, the Australian Guild of Natural Juice Bottlers opposed it in a press statement on the grounds that heating the product to the recommended temperature of 85 degrees would put up their cost of production considerably because of increases in the power charges, and make it uneconomic to continue with the product on which many Australians have now come to rely. With the support of environmentalist groups, the Guild further argued that since plastic containers are neither biodegradable nor easily recycled, they are not “environment friendly.” The Guild’s press statement also noted that most other interstate manufacturers use glass and not plastic containers and that given that fermentation was very rare and the cost associated with any changes was too high, the Kirsten Report recommendations were unnecessary and in any case uneconomic to implement in New South Wales.

On July 3 2011, Miss Hooper bought a bottle of orange juice from the TNJL range from the local supermarket. She placed the bottle together with the rest of her shopping on the front passenger seat of her Toyota Corona sedan, parked on Victoria Street in the Sydney suburb of Chatswood, and went to visit Mandy, a friend who lived in the vicinity. It was a hot sunny day, and the temperature was about 34 degrees.

Miss Hooper returned to her vehicle about an hour later with Mandy who had asked for a lift into the city. At this stage the temperature in the sedan had risen considerably and was estimated to be about 50 degrees. As Mandy was clearing the front passenger seat to make room to sit down, she shook the bottle of orange juice

which exploded into her face cutting her in several places and causing her to lose an eye. Mandy was rushed to the Royal North Shore Hospital.

Mandy wishes to know whether she can recover any damages against either TNJL or Miss Hooper. Advise her.

Week 5

25 Aug





Stewart & Stuhmcke, Australian Principles of Tort Law Ch 10 & Ch 14 (14.3.3 & 14.3.4 only)

Sections 5D & 5E Civil Liability Act 2002 (NSW)

Wallace v Kam [2013] HCA 19

Luntz & Hambly pp 257-300 OR the following cases:

March v Stramare Pty Ltd (1991) 171 CLR 506 Judgment of Mason CJ [1]-[29] (Austlii).

Travel Compensation Fund v Tambree (2005) 224 CLR 627 Judgment of Gleeson CJ at [28]-[35] and Gummow & Hayne JJ at [45]-[50] and Kirby J (in Dissent) at [51]-[63] (Austlii).

Chapman v Hearse (1961) 106 CLR 112 at [8]-[11] (Austlii).

Mahony v Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 (Austlii).

Haber v Walker [1963] VR 339 Judgment of Smith J from “The legal principles governing questions of causation are in some respects unsettled …” to the end. (1963) VR 339 (Austlii)

Bennett v Minister for Community Welfare (1992) 176 CLR 408 Judgment of Mason CJ, Deane & Toohey JJ at [2]-[22] ( Austlii).

Medlin v SGIO (1995) 182 CLR 1 Judgment of Deane, Dawson, Toohey & Gaudron JJ [19]-[26] (Austlii)

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48 (Austlii)

Strong v Woolworths Ltd [2012] HCA 5 (Austlii)

Proof of Breach

Stewart & Stuhmcke, Australian Principles of Tort Law Ch 10

Luntz & Hambly pp246-256 OR the following cases:

Holloway v McFeeters (1956) 94 CLR 470 Judgment of Williams, Webb & Taylor JJ only (Austlii).

Schellenberg v Tunnel Holdings Pty Ltd (2000)200 CLR 121 Judgment of Kirby J at [101]-[127] (Austlii)

​Be prepared to answer the following questions in your seminar:

1. What does the Civil Liability Act 2002 (NSW) state in relation to causation? What

is the “two-stage” approach to causation?

2. Explain the “But For” test. (refer to March v Stramare (1991) 171 CLR 506 and

Travel Compensation Fund v Tambree (2005) 224 CLR 627 in your answer) How does s 5D of the Civil Liability Act 2002 (NSW) impact on the common law?

3. What does the High Court have to say about s 5D in Adeels Palace Pty Ltd v

Moubarak; Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48?

4. Explain the notion of “material contribution”.

5. What is the effect of Woolworths Ltd v Strong [2012] HCA 5 (Judgment of French

CJ, Gummow, Crennan and Bell JJ)?

6. How is the decision in Wallace v Kam [2013] HCA 19 significant?

7. What is a “novus actus interveniens”? How would you decide whether a particular

event is a “novus actus interveniens” or not?

8 Explain the “standard of proof” in torts cases.

9 Jo runs a courier service driving his own truck. He collects a load of heavy steel joists which are to be delivered to a building site in North Sydney. Because he is in a hurry, he neglects to fasten the restraining straps over his load, leaving the joists loose on the back of his truck. Whilst he is driving along Pacific Highway, he drives over a pothole and the sudden jerk causes one of the joists to fall onto the roadway. Dennis whose car is travelling behind Jo stops quickly to avoid the joist. Robert, who is behind Dennis, is speaking on his mobile phone and does not notice Dennis stopping until it is too late. Robert crashes into the back of Dennis’ car and both Robert and Dennis are injured. Whose negligence is the cause of the accident?

10. Patricia is a waitress who is employed by Robert. Robert asks her to take

delivery of a number of large drums of cooking oil whilst he is at the bank. The deliverer of the drums leaves them at the rear entrance of the restaurant and Patricia who is alone, tries to carry them one at a time, into the store room. As she is carrying the second drum, she feels a sharp pain in her back and is unable to straighten up. On his return, Robert takes her to hospital where it is confirmed that the injury to Patricia’s spine is due to her lifting the heavy drums. The prognosis is that the injury will heal in time and that Patricia will be able to return to her usual duties in about 6 weeks. After Patricia has been off work for some weeks in constant pain (neither medication nor physiotherapy help her), she decides to consult a chiropractor who manipulates her spine but negligently and permanently damages several of the vertebrae so that Patricia is unable to work at all in the future. Patricia sues Robert alleging that her damage and inability to work was due to her injury sustained at work. Advise Patricia and Robert.

11. Explain the maxim “res ipsa loquitur”. How does it assist a plaintiff to prove a


Week 6

1 Sept




Section 5D(4) Civil Liability Act 2002 (NSW)

Stewart & Stuhmcke, Australian Principles of Tort Law, Ch 11

Luntz & Hambly pp 301-335 ORthe following cases:

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co ltd (The Wagon Mound No 1)[1961] AC 388 (BAILII: [1961] UKPC 1)

Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty (The Wagon Mound No.2) [1967] 1 AC 617 Judgment of Lord Reid (BAILII: [1966] UKPC 1)

Mt Isa Mines v Pusey (1970) 125 CLR 383 Judgment of Windeyer J at [10]-[18] (Austlii).

Hughes v Lord Advocate [1963] AC 837 Judgment of Lord Reid (BAILII: [1963] UKHL 1)

Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501 Judgment of McHugh JA under heading “Remoteness of Damage” at pp 532-538 (LexisNexis).

Kavanagh v Akhtar (1998) 45 NSWLR 588 Judgment of Mason P under heading “Remoteness” (Austlii).

Commonwealth v McLean (1996) 41 NSWLR 389Judgment of Handley & Beazley JJA under heading “Remoteness of Damage” at pp 402 – 407. (LexisNexis)

Be prepared to answer the following questions in your seminar:

1. Explain the importance of the Wagon Mound cases in relation to remoteness.

Explain any changes made to the common law by the Civil Liability Act in this area.

2. Both Wagon Mound cases concerned the same fire; explain how the damage

could be considered unforeseeable in the first case but foreseeable in the second.

3. How do the courts characterise the “kind” of damage suffered by a plaintiff for the

purpose of determining whether damage is too remote? Refer to the Wagon Mound cases, Hughes v Lord Advocate, Doughty v Turner Manufacturing, Mount Isa Mines Ltd v Pusey, Rowe v McCartney, Jolley v Sutton London Borough Council, Nader v Urban Transit Authority, Commonwealth v McLean, Gittani Stone Pty Ltd v Pavlovic, Versic v Connors, MetrolinkVictoria Pty Ltd v Inglis and Kavanaghv Akhtar.

4. What is the “egg shell skull” rule?

5. What is the impact of culture upon the law of tort? Use the concept of remoteness

as applied in Kavanagh v Akhtar (1999) 45 NSWLR 588 to support your answer.

​Problem Question:

Kathy went to a doctor and described a complaint. The doctor prescribed a drug which must be made up and then dispensed by a registered pharmacist. The doctor knew that this drug contained an active ingredient which could cause the side effects of dizziness and physical shaking if the person who consumed the drug also consumed alcohol. The doctor, believing that Kathy did not drink alcohol, did not warn her of this possible risk.

Kathy took the prescription to her local pharmacist. The pharmacist made up the prescription using a number of prepared compounds. The batch of prepared compounds containing the active ingredient was supplied by Perfect Poisons Ltd in a

bulk package. These packages were normally provided with a 20% concentration of the active ingredient. However, the batch provided to the pharmacist contained 40% active ingredient.

Perfect Poisons had changed the concentration of their product in order to cut costs. They had announced this change in advertisements in the trade magazine sent to pharmacists but Kathy's pharmacist had not yet read the relevant issues. Perfect Poisons had also attached a table to the package stating the change in concentration and warning pharmacists to adjust their measurements when dispensing. This label was placed on the old containers over the previously existing label and attached by sticky tape. The new label had come off the container at some time prior to mixing the drug for Kathy.

The pharmacist did not test the strength of the compound when preparing Kathy's drugs and as a result the drug contained twice the intended active ingredient. When handling the prescription to Kathy the pharmacist was very busy and did not inquire whether the doctor had given any warnings about possible side effects. Nor did the pharmacist issue any warnings herself.

Kathy consumed the prescription according to the recommended dosage and had a couple of beers to make herself feel better. In a dizzy spell which followed, Kathy, shaking violently, fell down the stairs in her home and broke her leg.

Advise Kathy of her rights in tort.

Also consider the following variations:

When Kathy fell down the stairs she was three months pregnant. Nobody knew this except Kathy. The child was born suffering from physical deformities which could be attributable to a fall in early pregnancy.her rights in tort. Also consider the following variations: Assume that instead of falling down the

Assume that instead of falling down the stairs, Kathy had dropped a saucepan of boiling water on herself and the burns triggered a pre-existing disposition to skin cancer. During an operation to treat the cancer Kathy died without any negligence on the part of the medical team. There was evidence to suggest that she had died because of a reaction to the general anaesthetic which occurs in one in every 10,000 people.which could be attributable to a fall in early pregnancy. What if Kathy knew that the

What if Kathy knew that the drug could cause this side effect although she had not been warned of the potential severity of the effects?anaesthetic which occurs in one in every 10,000 people. 19/07/2014 (Spring 2014) © University of Technology,

Week 7

8 Sept




Part 1A Divisions 4, 5 and 8 Civil Liability Act 2002 (NSW)

Section 138 Motor Accidents Compensation Act 1999 (NSW)

Section 9 Law Reform (Miscellaneous Provisions) Act 1965 (NSW)

Stewart & Stuhmcke, Australian Principles of Tort Law, Ch 13 & Ch 15 (15.1, 15.2 and 15.2.2 only)

Note particularly the following cases:

Fallas v Mourlas [2006] NSWCA 32 (Austlii)

Falvo v Australian Oztag Sports Association [2006] NSWCA 17 (Austlii)

Zanner v Zanner [2010] NSWCA 343 Judgment of Tobias JA at [84] –[104] (Austlii)

Miller v Miller [57]-[74] and [91]-[106]. (Austlii).

Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128

Great Lakes Shire Council v Dederer & Anor; Roads & Traffic Authority of NSW v Dederer & Anor [No 2] [2006] NSWCA 336 (Austlii).

Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 judgment of Gummow J at [43]-[80] (Austlii).

Luntz & Hambly pp 336-372 OR the following cases:

Joslyn v Berryman (2003) 214 CLR 552 Judgment of McHugh J at [15]-[41] (Austlii).

Pennington v Norris (1956) 96 CLR 10 Judgment of Dixon CJ, Webb, Fullager & Kitto JJ at [13]-[16]. (Austlii)

Caterson v Commissioner for Railways (1973) 128 CLR 99 Judgment of Gibbs J at [7]-[11] (Austlii).

McLean v Tedman (1984) 155 CLR 306 Judgment of Mason, Wilson, Brennan & Dawson JJ at [19]-[23] (Austlii).

Scanlon v American Cigarette Company (Overseas) Pty Ltd (No.3) [1987] VR 289 (Austlii).

Rootes v Shelton (1967)116 CLR 383 Judgment of Owen J at [1]-[8] (Austlii).

Be prepared to answer the following questions in your seminar:

1. What will a defendant have to prove to establish a defence of Contributory

Negligence at common law?

2. In Kavanagh v Akhtar (1998) 45 NSWLR 588 Mason P commented at 602:

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 regarded as a foreseeable consequence of the physical injury inflicted on the respondent: see Commonwealth v McLean. Contributory negligence was not pleaded.

If contributory negligence had been pleaded, could it have succeeded?

3. Evaluate the scope of contributory negligence under the Civil Liability Act 2002


4. In Scanlon v American Cigarette Company Overseas Pty Ltd (No 3) [1987] VR

289 the defendant argued:

If it is to be the case that the smoking of the said cigarettes involved risk of injury as

alleged… the P knew or ought to have known that the smoking of the said cigarettes involved such risk and the P accepted, consented to and voluntarily assumed the same (extract from D’s statement of defence).

In pleading voluntary assumption of risk does the defendant need to prove subjective knowledge or is proof of objective/constructive knowledge sufficient in the light of the Civil Liability Act 2002 (NSW)?

5. Assess critically the distinctions between ‘obvious risks’ and ‘inherent risks’ under

the Civil Liability Act 2002 (NSW). What is the effect of s.5L of the Civil Liability Act 2002 (NSW)?

6. What is a "risk warning" under s 5M Civil Liability Act 2002 (NSW)? How does s

5M differ from ss 5B and 5H? Refer to Action Paintball Games Pty Ltd (In liquidation)




What is the effect of s 5O Civil Liability Act 2002 (NSW)? Consider the application

of the section in Russell v Edwards [2006] NSWCA 19.

Problem question

Noreen Cummins is a teacher working at Moree Public School in far western New South Wales. The School decided to take the students to the snowfields in Perisher Blue for an excursion. Noreen was asked to accompany the group as part of her duties. Some students thought it would be a good idea to take along large “For Sale” signs from the local real estate agent to be used as toboggans on the slopes. Six large signs were taken on the trip.

On their first day at Perisher Blue, they loaded their ‘For Sale’ signs and took the Ski Tube to the main office. A sign near the office read ‘Snowboarding is a dangerous activity’. Staff of the snowfields directed the School group to ski lifts and to the beginner slopes.

The School group decided to slide on the ‘For Sale’ signs on the “Beginner” slopes. After half an hour of sliding with the students, Noreen decided to slide head first in an area 100 metres away from the group. In the course of her first slide, Noreen crashed into a snow-covered rock protruding 600mm from the ground and sustained considerable spinal injuries.

Noreen has been advised that given the facts of the case, any action in negligence against Perisher Blue is almost certain to fail because of provisions in the Civil Liability Act 2002 relating to recreational activities. Do you agree?

​Readings which may be helpful for Week 8 but are not prescribed:

Shircore M, ‘Drinking, driving and causing injury: The position of the passenger of an intoxicated driver’ (2007) 7(2) QUT Law and Justice Journal 375. Available at:

Vairy v Wyong Shire Council [2005] HCA 62 (Austlii).

Week 8

15 Sept




Stewart & Stuhmcke, Australian Principles of Tort Law Ch 16, and the following:

Occupiers liability

Luntz & Hambly pp 409-422 OR the following cases:

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 Judgment of Gleeson CJ at [13]-[36] (Austlii).

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [23]-[26] (Austlii)

Employers Duty to Employees

Luntz & Hambly pp 450-458 OR the following cases:

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Judgment of Dixon CJ & Kitto J at [3]-[10] (Austlii)

Mc Lean v Tedman (1984) 155 CLR 306 judgment of Mason, Wilson, Brennan & Dawson JJ at [3]-[23] (Austlii).

Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 Joint judgment at [21] – [28] (Austlii)

The Unborn Child

Luntz & Hambly: pp385-390 OR the following case:

Cattanach v Melchior (2003) 215 CLR 1 Judgment of McHugh & Gummow JJ at [54]-[69] and [76]-[92] (Austlii)

Other ‘pre-natal’ torts: wrongful life and wrongful birth

Part 11 of the Civil Liability Act 2002 (NSW)

Waller v James; Waller v Hoolahan [2006] HCA 16 Judgment of Crennan J [67]-[87] (Austlii).

Luntz & Hambly pp 379-382 OR the following case:

Harriton v Stephens (2006) 226 CLR 52 Judgment of Crennan J at [225]-[278] (Austlii)

Mental harm/Nervous shock

Sections 27-33 of the Civil Liability Act 2002 (NSW)

Stewart & Stuhmcke Ch 14 (14.3.11 only)

Sheehan v SRA; Wicks v SRA [2010] HCA 22 [1]-[6] and [38]-[54] (Austlii)

Luntz & Hambly pp 466-478 OR the following case:

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 Judgment of Gummow & Kirby JJ at [170]-[242] (Austlii)


This section of the course builds on the general principles of negligence with which you are now familiar and focuses on particular categories of the duty of care where the uniqueness of the plaintiffs or the injury suffered warrants special attention.

In Harriton v Stephens (2006) 226 CLR 52, Kirby J at [63] said that most cases "fall

within a recognised duty of care category". A category is recognised, or "established", where there is a sufficient body of precedent to establish not only that a duty of care exists but also the scope of that duty. In exceptional cases, policy considerations may negate an established duty (eg a driver's duty to a passenger in Gala v Preston, Week 3)

Cases falling outside recognised duty categories may be categorised in one of two ways:

(i) Cases which, before the emergence of the modern tort of negligence, would have been actionable as trespass or trespass on the case, ie where a physical injury is caused by the positive act of the defendant. These actions have been subsumed by the modern tort of negligence. Of these, Kirby J said, also at [63]: "in so far as physical injuries arising from a positive act are concerned, it is accepted that if the reasonable foreseeability test is satisfied, the elusive additional component of a duty of care will generally exist". The word "generally" accommodates exceptional cases where public policy may negate any duty (eg Shaw Savill, Week 3).

(ii) Cases described as "novel", ie cases which would not have been actionable as trespass or trespass on the case because the injury was non-physical (non-physical injuries include pure mental harm, below, and pure economic loss, Week 10) or because it was caused by the defendant's failure to act (Week 11), and which are otherwise outside the scope of any of the recognised duty categories. In this category, Kirby J continued at [64], "instruction on the duty issue can be secured from several 'salient features' that have been identified as potentially relevant to the existence of a duty".

Be prepared to answer the following questions in your seminar:

1. Levi v Colgate-Palmolive Pty Ltd (Week 3) and Grant v Australian Knitting Mills

were claims by sensitive consumers; explain the different outcomes.

2. In Donoghue v Stevenson, Lord Atkin at 599 described the scope of a

manufacturer's duty to the ultimate consumer: " A manufacturer of products, which he sells in such a form as to show that he intends 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." In Grant v Australian Knitting Mills the reference to intermediate examination was explained, noting that the defect "could not be detected by any examination that could reasonably be made. Nothing happened between the making of the garments and their being worn to change their condition" and later "The decision in Donoghue's case did not depend on the bottle being stoppered and sealed: the essential point in this regard was that the article should reach the consumer or user subject to the same defect as it had when it left the manufacturer:"

(a) What is the scope of the duty of care of an occupier? Refer to Modbury Triangle

Shopping Centre Pty Ltd v Anzil. What does the decision in Adeels Palace Pty Ltd v Moubarak say about established duty categories?

(b) What is the scope of the employer’s established duty of care to the employee?

Did Koehler v Cerebos (Australia) Ltd come within this established duty category or was it a novel case? Why?

3. In March v Stramare, Deane J described a driver's duty of care as being owed "to

all users of the road, including the inattentive and those whose faculties were impaired by alcohol". The duty extends to other drivers, passengers, pedestrians and owners of property adjacent to the road. In Lynch v Lynch did the driver's duty of care come within the established category, or was the case novel? What was the

principal policy consideration on which the court relied in concluding the relevant duty relationship was driver and passenger and not mother and unborn child?

4. Consider the decision of the High Court in Harriton v Stephens. What was the

primary basis for the rejection of the plaintiffs’ claims?

5. Briefly explain the general scheme of Part 3 of the Civil Liability Act 2002 (NSW)

dealing with mental harm? In Sheehan v SRA; Wicks v SRA, why was the High Court critical of the lower courts' approach in considering s 30 without having considered s 32? How might s 32 have affected the outcome of the case?

6. How does the Civil Liability Act 2002 (NSW) operate with respect to “mental

harm” as opposed to “pure mental harm” cases?

7. Compare the two cases of Annetts v Australian Stations Pty Ltd and Morgan v


(a) Critically analyse the court’s approach in these two cases and explain the varied


(b) In nervous shock cases, what does ‘a person of normal fortitude’ mean? To what

extent if any does the Civil Liability Act2002 (NSW) impact on the definition of the scope of ‘a person of normal fortitude’? Note the Ipp Report at [9.15], [9.16]:

"The basic idea underlying the approach of the High Court in Tame/Annetts is that people vary in terms of psychological vulnerability, and that as a general rule, it is unreasonable to expect others to take greater precautions than would be necessary to protect the normally vulnerable (that is, people of ‘normal fortitude’). It is essential to understand that while the incidence of various mental illnesses in the general population may be relevant to the concept of ‘normal fortitude’, this concept is ultimately a legal, not a scientific, one. It is no more scientific than the concept of the reasonable person. It has a significant evaluative element, and its function is to allocate legal responsibility for mental harm rather than to assist in the diagnosis of mental illness for clinical or epidemiological purposes.

In fact, the law takes the same attitude to physical vulnerability. People vary in terms of physical vulnerability, but a person (the defendant) will owe another (the plaintiff) a duty to take care not to cause the plaintiff physical harm only if the defendant ought to have foreseen that a person of normal physical vulnerability might suffer harm if care was not taken."

8. Explain the impact of the Ipp Report in relation to a court’s interpretation of the

mental harm provisions (Part 3) of the Civil Liability Act 2002 (NSW). Refer to ss 33 & 34 of the Interpretation Act (NSW). What is the significance of the High Court decision in Sheehan v SRA; Wicks v SRA in relation to the interpretation of Pt 3.

Problem Question

Mr and Mrs Diamond have two daughters who are currently enrolled in an exclusive Sydney private school, and a substantial mortgage. Last July the Diamonds decided that given their financial resources they could not afford to have any more children and that their family is “complete”. After some deliberations, the Diamonds decided that Mrs Diamond would undergo sterilisation.

In August, Mrs Diamond was referred to Dr Gentle (gynaecologist) who performed a tubal ligation on her. Before the operation the Diamonds were invited to a pre-operation consultation in which Dr Gentle explained the procedure. She indicated that even though it was invasive, it was relatively safe, a secure form of birth control and indeed fairly common. At the pre-operation consultation, Mrs Diamond who is 42 also indicated that quite apart from the financial considerations

she was anxious not to have another child because she learned from the Opera Winfrey Show that once a women passes the age of 35 there is an increased possibility of birth complications and a very high probability that her child could have Down Syndrome. Dr Gentle explained that while it is indeed true that a woman’s age is a crucial factor in childbirth management, Mrs Diamond did not need to worry because tubal ligation is an effective system of preventing childbirth.

In November, Mrs Diamond discovered that she is pregnant in spite of the tubal ligation. Dr Genlte has since explained to the Diamonds that even though re canalisation (ie rejoining of the tube) can occur in tubal ligation, this is rather very rare and so she did not mention this possibility to the Diamonds at the pre-operation consultation.

Mr & Mrs Diamond are strongly opposed to abortion and adoption, and therefore do not consider either as an option to them.

After the 12-week ultrasound, the Diamonds discovered that their new child will have Downs Syndrome. Nevertheless, they have decided to have the baby.

a) Advise the Diamonds. In particular explain what remedies may be

available to them?

b) Assume the new child survives. Can the child sue Dr Gentle too? Why or

why not?

Reading which may be helpful for Week 4 but is not prescribed:

Occupiers Liability

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Judgment of Mason, Wilson, Deane & Dawson JJ at [5]-[12] (Austlii)

The Unborn child

Watt v Rama [1972] VR 353

Lynch v Lynch (1991) 25 NSWLR 491

X v Pal (1991) Aust Torts Reps 81-098

Other ‘pre-natal’ torts: wronglife life and wrongful birth

CES v Superclinics (1995) 38 NSWLR

G & M v Armellin [2009] ACTCA (1 May 2009)

Todd S, “Wrongful Conception, Wrongful Birth and Wrongful Life” (2005) 27(3) Sydney Law Review 525

Stewart PE & Stuhmcke AG, ‘The Child In Utero and Ex Utero’ in Monahan & Young (eds) Children and the Law in Australia, LexisNexis, pp54-82


Carver T, ‘Causing mental harm to rescuers’ (2010) 48(9) Law Society Journal


Muthu Y, ‘Police Officers as Rescuers: Clarity in Interpretation’ (2010) 99 Precedent




Faculty Non-teaching Week



No Tutorials



Vice-Chancellor's Week



No Tutorials

Week 9

6 Oct


Note: Monday 6 October is the Labour Day public holiday There will be no Monday or Tuesday tutorials this week



Stewart & Stuhmcke, Australian Principles of Tort Law Ch 17

Luntz & Hambly pp801-856 OR the following cases:

Hedley Byrne & C0 Ltd v Heller & Partners Ltd [1964] AC 465 Judgments of Lord Reid and Lord Morris (BAILII).

Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 Judgment of Barwick CJ at [8]-[34] (Austlii)

Shaddock v Parramatta City Council (No 1) (1981) 150 CLR 225 Judgment of Gibbs CJ at [1]-[15] (Austlii)

San Sebastian Pty Ltd v Minister Administering the Environmental Planning & Assessment Act 1979 (1986) 162 CLR 340 Judgment of Gibbs CJ, Mason, Wilson & Dawson JJ at [15] –[25] (Austlii)

Esanda Finance Corporation Ltd v Peat Marwick Hugerfords (1997) 188 CLR 241 Judgment of Brennan CJ and Judgment of McHugh J (Austlii)

Tepko Pty Ltd v The Water Board (2001) 206 CLR 1 Judgment of Gleeson CJ, Gummow & Hayne JJ at [46]-[51] (Austlii).

Caltex Oil (Australia)Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 Judgment of Stephen J at [42]-[50] (Austlii)

Hill (t/a R. F. Hill & Associates) v Van Erp (1997) 188 CLR 159 Judgment of Dawson

J only (Austlii)

Perre v Apand Pty Ltd (1999) 198 CLR 180 Judgment of Gleeson CJ at [1]-[16] and McHugh J at [100]-[132] (Austlii).

Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 Judgment of Gleeson CJ, Gummow, Hayne & Heydon JJ at [28]-[31] and judgment of McHugh

J at [72]-[75] and [106]-[116] (Austlii).

Be prepared to answer the following questions in your seminar:

1. Explain the concept of pure economic loss (as opposed to consequential

economic loss). What distinguishes this category of the duty of care (ie the duty not to cause pure economic loss) from other duty categories?

2. What is the relationship between pure economic loss and negligent misstatement?

3. In an action for negligent misstatement, what are the ‘salient features’ of the duty

of care?

4. In Bryan v Maloney Brennan J noted that:

‘If liability were to be imposed for the doing of anything which caused pure economic loss that was foreseeable, the tort of negligence would destroy commercial competition, sterilize many contracts and, in the well-known dictum of Chief Judge Cardozo, expose defendants to potential liability 'in an indeterminate amount for an indeterminate time to an indeterminate class'.

In Woolcock Street Investments Pty Ltd v CDG Pty Ltd the majority of the Court noted:

that is why damages for pure economic loss are not recoverable if all that is shown is that the defendant's negligence was a cause of the loss and the loss was reasonably foreseeable.’

In an action for pure economic loss what are the ‘salient features’ of the duty of care?

5. What is meant by ‘vulnerability of the plaintiff’? Refer to Woolcock Street Investments Pty Ltd v CDG Pty Ltd, in particular the judgments of Gleeson CJ, Gummow, Hayne and Heydon JJ at [23]-[24] and [31]; McHugh J at [80] and Kirby J at [168]-[169].

6. What remedy is available to the purchaser of a house that is found (after the purchase has been completed) to have been defectively constructed?

Problem Questions:

A Kath and Kim own and operate a seafood restaurant called Hasta Manyana in Manyana Bay. The restaurant, which is located on the southern end of Manyana Bay, is only accessible by a pontoon that is operated from the nearby locality of Bendalong Peninsula. The pontoon which is called the Pride of Manyana is owned and operated by the State Transport Authority of New South Wales. On the 20th September 2003, Thomas Jones negligently drove his ‘four wheel’ drive vehicle on to the Pride of Manyana against the express instructions of the STA personnel operating the pontoon. The central pulley system that is used to pull and manoeuvre the pontoon into place was damaged considerably. The STA ceased operating the Pride of Manyana until March 2004 after it had carried out repairs to the damage. From late September through to the completion of the repair work in late March 2004 the Hasta Manyana was forced to shut as it became inaccessible to its patrons. Kath and Kim estimate that the damage to the Pride of Manyana has cost them in excess of $800,000 and may have to file for bankruptcy.

Kath and Kim have been advised that since no damage was done to the Hasta Manyana and they did not own the Pride of Manyana they have no cause of action to recover damages for their losses. Do you agree with this advice? Why or why not.

B Dr. Rallod is an investment advisor and the host of a radio program on investment strategies. His program, which runs on a local radio station on Sunday mornings, is called Penny Wise and Dollar Clever. On the 20th November 2004, following the overwhelming victory of the Liberal party in the last election, Dr Rallod declared on his program that ‘if ever anyone wanted to buy Telstra shares this is the time’. He went on to say that:

“The resounding victory of the Liberal party provides an unequivocal mandate to the Howard government to sell the remaining part of the telco and to privatise it as it should. The telco is most certainly one of the best and the most efficient in the world today. This is going to be a great windfall for the mum and dad investors of Australia. At $4.50, the shares of the telco are most definitely underpriced and those who get in early are going to rake in the benefits.”

Jonathan who is a regular listener of the program and subscribes to Penny Wise and Dollar Clever investment magazine rang Dr Rallod and indicated that he was keen to invest in Telstra but that he was worried that changes in the senior management and problems in the Telstra board might cause the share price to drop even lower that $4.50. Dr. Rallod responded by saying: ‘ Mate, Telstra is as solid as an old telephone booth. Not even the resignation of the CEO will make a difference to the share price.’ Jonathan subsequently purchased $320,000 worth of Telstra shares. In early December 2004 the CEO of Telstra resigned, the share price of the company dropped causing Jonathan to lose $25,000.

Jonathan wishes to know if he can bring an action against Dr Rallod. Advise Jonathan.

Readings which may be helpful for Week 9 but not prescribed:

Cane P, ‘The Blight of Economic loss: Is There life After Perre v Apand’ (2000) 8 Torts Law Journal 246

Week 10

13 Oct





Stewart & Stuhmcke, Australian Principles of Tort Law, Ch 16 (16.8 only)

Landowners and Escape of Fire

Luntz & Hambly pp 437-440, 755-756 OR the following cases:

Hargrave v Goldman (1963) 110 CLR 40 judgment of Windeyer J at [16]-[29] Austlii

Goldman v Hargrave [1967] 1 AC 645 Privy Council Judgment of Lord Wilberforce at [9]-[23] Austlii

Duty to control children

Luntz & Hambly pp 443-445 OR the following cases::

Robertson v Swincer (1989) 52 SASR 356 Judgment of King CJ available via Legal Online – UTS library.

Smith v Leurs (1945) 70 CLR 256 Judgment of Dixon J (Austlii)

Duty to Rescue

Stewart & Stuhmcke, Australian Principles of Tort Law, Ch 15 (15.2 only)

Lowns v Woods (1996) Aust Torts Reports 81-376 extracted in Luntz & Hambly at [7.9.10C] OR read the NSW Court of Appeal Judgment of Kirby P at pp3-6 and Mahoney JA (dissenting) at pp16-20 under the heading “The Liability of Dr. Lowns” available on LexisNexis

Duty to Protect

Luntz & Hambly p165 and pp 419-421 OR the following cases:

Hill v Chief Constable of West Yorkshire [1989] AC 53 Judgment of Lord Keith of Kinkel pp4-5 (BAILII)

Modbury Triangle Shopping Centre v Anzil (2000) ALJR 164 Judgment of Gleeson CJ at [13]-[36] Austlii.

Statutory Authorities

Civil Liability Act 2002 (NSW), Part 5 Liability of Public & Other Authorities

Stewart & Stuhmcke, Australian Principles of Tort Law, Ch 18 & Ch 14 (read 14.3.13 only)

Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263. Headnote and paras [377]-[408] (Austlii)

Luntz & Hambly pp422-432 OR the following cases:

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. Judgment of McHugh J at [78]-[85] and [96]-[100] (Austlii)

Crimmins v. Stevedoring Industry Finance Committee (1999) 200 CLR 1. Judgment of McHugh J at [61]-[63] and [79]-[80] and [93]-[94] and [103]-[108] (Austlii)

Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports 81-749. Judgment of Ipp JA at [18]-[22] and [64]-[65] and [158]-[162] (Austlii)

Be prepared to answer the following questions in your seminar:


When will a person be liable in negligence for a “pure omission”?


What does Part 5 of the Civil Liability Act 2002 (NSW) state?


What is a Statutory Authority?


What is the effect of s 43A of the Civil Liability Act 2002 (NSW)?


What is the significance of the distinction between ‘powers’ and ‘duties’ in relation


the issue of whether a statutory authority owes a duty of care?


In Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 what are the criteria by

which McHugh J would determine at common law, the issue of whether a statutory body owes a duty of care to exercise a statutory power?

7. Referring to s 45 Civil Liability Act 2002 (NSW), explain the ‘non-feasance’ rule for

‘highway authorities’. What is its significance today at common law and in NSW?

Problem question

The Green National Park is a very large tract of land on the southern coast of NSW.

It is a wilderness park (with a dirt road through it but no other development or

amenities) and a nature reserve with much native wildlife. It is controlled and managed by the NSW Parks and Wildlife Service, an authority created by Statute. Section 5 of the legislation charges the Service with “responsibility for proper care and maintenance of national parks and wildlife”.

The Park has in the past, been severely damaged by bush fire. In recent years however, the National Parks and Wildlife Service has not conducted any clearing or reduction of undergrowth which would provide fuel for a bush fire.

A particular reason for the reluctance of the Service to do any ‘back burning’ has

been the activity of one of the local green groups, The South Coast Green Coalition led by Ben Boyd. Last winter, when the Service was preparing to conduct a ‘hazard reduction burn’, Ben and many members of the Green Coalition held a protest at the entrance to the Park. They camped on Park land for a week, despite being told by

Park Rangers that they were in breach of regulations forbidding camping in the Park, and being asked to leave. Sam, one of the Rangers had an unpleasant confrontation with Ben. Sam ordered Ben off the Park property and Ben responded by throwing several pellets of possum dung at Sam. Sam told Ben “If you are not careful, we might just burn off anyway. That’d fix you and your greenie mates.” Ben and the other protesters used their cars and camping gear to block the one road into or out

of the Park so that neither the Rangers nor members of the public were able to enter.

After the protesters finally departed, the Service decided not to conduct the ‘hazard reduction burn’ because it did not want to risk any further confrontation with the Green Coalition.

The South Coast Branch of the Rural Bush Fire Service, where John was the Captain and a permanent employee, strongly advised the National Parks and Wildlife Service to reduce the undergrowth and combustible material in the Park. John wrote

a formal letter of advice to the Service to that effect but the Service did not do any

‘hazard reduction’ in the Park. The Rural Bush Fire Service is created by statute and has power under its enabling legislation to require ‘hazard reduction’ by formal notice and even to carry out reduction operations itself where it perceives a bush fire hazard. John did not follow up his letter to the National Parks and Wildlife Service.

Last year on a very hot and windy late spring day, some employees of the Department of Main Roads (D.M.R.) were carrying out repair work on the Princes Highway which ran along the perimeter of the Green National Park. Smoking on the

job when in rural or bush areas had been forbidden by the area supervisor of the D.M.R. because of both health and fire risks. This rule was largely ignored by D.M.R. employees. At least 3 of the workers on the Princes Highway job that day were smokers and had cigarettes. They all admitted to having thrown their butts onto the side of the road but not to having started the grass fire which began along the roadside and spread very quickly into the bush of the Green National Park. The expert evidence is that the grass fire probably started as a result of the discarded cigarettes however it is accepted that 1 in 10 bush fires is a result of unexplained events.

The Park was very severely damaged by the fire. The expert evidence was that had the undergrowth been reduced, the fire could have been extinguished early, certainly before the entire park and surrounding area had been burned out.

Carlo, a bushwalker in the park died of smoke inhalation. He has a wife who is dependent upon him.

The fire spread to neighbouring land owned by Sue and destroyed her greenhouses and her tomato crop.

Harry owned a caravan park on the southern boundary of the park. His property was not damaged by the fire but he depended heavily on the tourists who visited the area and the National Park for business to his caravan park. He estimates that the destruction of the bush and wildlife by the fire has cost his business most of the summer profits of around $40,000 he would have taken this year.

Advise all parties of their rights and liabilities in tort. Do NOT consider issues relating to assessment of damages.

Readings which may be helpful for Week 10 but not prescribed:

Carroll E, ‘Wednesbury unreasonableness as a limit on the civil liability of public authorities’ (2007) 15(2) Tort Law Review 77

Vines P, Straddling the public/private divide : tortious liability of public authorities’ (2010) 9(4) Judicial Review 445

Watson GS, ‘Section 43A of the Civil Liability Act 2002 (NSW): Public law styled immunity for the negligence of public and other authorities?” (2007) 15 Tort Law Journal 153

Zipser B, ‘Tort Liability of Public Authorities and Manufacturers: The Oyster Case’ (2003) 59 Plaintiff 32

Week 11

20 Oct




Vicarious Liability & Non-Delegable Duties

Section 5Q Civil Liability Act 2002 (NSW)

Stewart & Stuhmcke, Australian Principles of Tort Law, 2005 Ch 20

Luntz & Hambly pp857-880 and 895-918 OR the following cases:

Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Judgment of Gleeson CJ, Gaudron, Gummow, Kirby & Hayne JJ [32]-[57] and Judgment of McHugh J [69]-[74] Austlii.

Stevens v Brodribb River Sawmilling Co Pty Ltd (1986) 160 CLR 16Judgment of Mason J at [9]-[21] Austlii

Bugge v Brown (1919) 26 CLR 110 Judgment of Isaacs J only (Austlii)

Deatons Pty Ltd v Flew (1949) 79 CLR 370 Judgment of Dixon J [1]-[10] (Austlii)

New South Wales v Lepore (2003) 212 CLR 511 judgment of Gleeson CJ [1]-[5] and [31]-[34] and [49]-[67] (Austlii).

Workers Compensation

Notes at Self-Learning Module 2 in this Course Outline.

Concurrent and Proportionate Liability

Section 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Civil Liability Act 2002 (NSW) Part 4 Proportionate Liability

Stewart & Stuhmcke, Australian Principles of Tort Law Ch 24

Be prepared to answer the following questions in your seminar:

1. What are the factors which create the relationship of employer and employee?

2. What is the difference between a ‘contract of service’ and a ‘contract for


3. What is the meaning of the expression “in the course of employment”?

4. What is a “non-delegable” duty of care and what are its consequences?

5. How do the courts determine when a duty is non-delegable?

6. Explain what is meant by “joint and several liability”.

7. Explain the concept of “contribution between tortfeasors”? How are relative

contributions determined?

8. What is the difference between "joint and several liability" and "proportionate


Problem question

For many years, SES has operated as a courier company in Sydney. The company has many employees on its payroll working as deliverymen and women. In 2014, due to a rapid expansion in business, SES engaged the services of four subcontractors to do part of the deliveries for the company. Mr Fabian Mathews is one of these subcontractors.

There is no written contract as such between SES and individual subcontractors, but SES is a member of the New South Wales Road Transport Association which is a signatory to an agreement with the Transport Workers' Union of Australia. All the subcontractors are members of the Transport Workers' Union. The agreement defines the rights and duties of primary contractors and sub-contractors. Clause 9 of the agreement indicates that a subcontractor is an independent contractor and not an employee. Other relevant aspects of the agreement are as follows: (a) If a subcontractor is unable to work, he or she is able to employ another person to do the deliveries for him or her. (b) The subcontractor is under an obligation to indemnify SES for the destruction or mis-delivery of any items resulting from the negligence of the subcontractor.

It is not a term of the agreement that subcontractors cannot work for other companies. However, because of the volume of work from SES, its subcontractors are fully occupied and do not need to work for any other companies. It is the policy of SES that each sub-contractor should own a two-ton van for the delivery work. SES also provides finance to subcontractors to purchase the vans. However, subcontractors are under no obligation to take or accept such finance.

It is also the policy of SES that each owner-driver has his or her vehicle painted in SES colours and bear the SES logo. SES pays for the costs of such painting and signs on the vehicles. To ensure a smooth operation, SES encourages all its subcontractors to use vehicle maintenance and refuelling services provided by SES. The cost of the fuel and maintenance services are deducted from the payments to the subcontractors.

SES requires all subcontractors to report for work at the SES headquarters at 7.15 am. each morning. The subcontractors are also obliged to make themselves available for work till 7.15 p.m. While on their delivery rounds, all subcontractors remain in touch with SES head office by means of CB radios and mobile phones supplied by SES.

All SES subcontractors are paid on the basis of kilometres travelled for deliveries. None of the subcontractors is on the superannuation scheme organised by SES.

Mr Mathews’ first job one day was to deliver a package to Lindfield High School. The package contained a crystal mirror ball which the school had borrowed from a former student, Disco Stu, for its upcoming “Back to the Seventies” fundraiser. After entering the school by the front gate, Mr Mathews fell into a ditch which was partially obscured by long grass. He injured his hip and the mirror ball was smashed to pieces.

The ditch had been dug by employees of North Shore Plumbing Pty Ltd, who were working on upgrading connections for the High School. Despite persistent requests from the Headmistress that the plumbers should put a protective barrier around the ditch, they had failed to do so. The headmistress had also advised SES to use the back entrance to the school because of the ditch near the front gate, but SES failed to pass on this information on to Mr Mathews.

When the headmistress tried to contact North Shore Plumbing following the accident, she learned that the business was in liquidation, and was also uninsured. When SES contacted Disco Stu to tell him that his mirror ball had been destroyed, the company drew his attention to the terms of the courier contract between them, which excluded any liability on SES’s part.



A claim by Mr Mathews’ for workers compensation in respect of his injury?


Any common law negligence claims Mr Matthews could bring for personal injury


(c) Any common law negligence claims Disco Stu could bring for property damage.

Week 12

27 Oct




Stewart & Stuhmcke, Chapter 22

Civil Liability Act 2002 (NSW) Part 2.

Luntz & Hambly Chapter 8 OR the following cases:

Lamb v Cotogno (1987) 164 CLR 1 Judgment of Mason CJ, Brennan, Deane, Dawson & Gaudron JJ [6]-[23]. (Austlii)

Todorovic v Waller (1981) 150 CLR 402 at 412 Judgment of Gibbs CJ & Wilson J at [6]-[24] and Murphy J at [7]-[10] (Austlii)

CSR v Eddy (2005) 226 CLR 1 Judgment of Gleeson CJ, Gummow & Heydon JJ at [1]-[3] and [28]-[31] and McHugh J at [89]- [90] (Austlii)

Sharman v Evans (1977) 138 CLR 563 Judgment of Gibbs & Stephen JJ at [1]-[48] and Murphy J (dissenting) at [1]-[31] (Austlii)

Kars v Kars (1996) 187 CLR 354 Judgment of Toohey, McHugh, Gummow & Kirby JJ from the heading “Damages for gratuitous services: an anomaly” to the end of the judgment. (Austlii)

Van Gervan v Fenton (1992) 175 CLR 327 Judgment of Mason CJ, Toohey & McHugh JJ at [17]-[21]. (Austlii)

Malec v J. C. Hutton Pty Ltd (1990) 169 CLR 638 Judgment of Deane, Gaudron & McHugh JJ at [7]-[11]. (Austlii)

Skelton v Collins (1966) 115 CLR 94 Judgment of Kitto J at [1]-[13] and Windeyer J at [1]-[20] (Austlii)

Glenmont Investments Pty Ltd v O’Loughlin(No 2) [2000]SASR 185 Judgment of Doyle CJ, Nyland & Martin JJ at [1]-[5], [417]- [444].

5% Discount tables - these can be found on the Intelliconnect (CCH) database under Torts & Personal Injury Law Library - Australian Torts Comemntary - Comparative Verdicts for Personal Injury & Death - Present Value of Future Weekly Payments.

Orr G, ‘Damages for Loss of Cultural Fulfilment in Indigenous Community Life’ [1997] Indigenous Law Bulletin 90 reproduced in the Book of Readings.

Be prepared to answer the following questions in class:

1. What are the different types of damages which can be awarded in a claim in tort

for personal injury?

2. Focusing on compensatory damages for personal injury, explain the significance

of each of the following principles in relation to the assessment of damages in tort for personal injury:

The ‘indemnity’ principleto the assessment of damages in tort for personal injury: The ‘once & for all’ rule

The ‘once & for all’ rulein tort for personal injury: The ‘indemnity’ principle The ‘lump-sum’ rule 3. What are the main

The ‘lump-sum’ rule‘indemnity’ principle The ‘once & for all’ rule 3. What are the main categories of compensatory

3. What are the main categories of compensatory damages which are awarded in

personal injuries cases (in particular distinguish between general and special

damages or non-economic loss and economic loss) and what are the main heads of damages which might be considered by a court in such cases?

4. Explain the notion of general damages for “loss of cultural fulfilment” as applied in

the cases of Napaluma v Baker (1982) 29 SASR 192 and Namala v Northern Territory [1996] AILR 87.

5. Explain the significance of the ‘discount rate’ for the assessment of future

economic loss.

6. Explain the notion of compensation for ‘gratuitous services’ provided to a plaintiff.

7. Explain the notion of a ‘discount for the vicissitudes of life’.

8. Will funds received from a ‘collateral source’ affect the quantum of damages

payable to a plaintiff?

9. Are awards of damages for personal injuries taxable in Australia?

10. Does the Civil Liability Act 2002 (NSW) affect the assessment of damages for

personal injuries in NSW? How? What are the main relevant provisions of the legislation?

11. On what principles do the courts award damages in respect of injury to land or


12. Is an injunction available as a remedy in tort?


Can you isolate the heads of damage which would be applicable to the plaintiff’s claim? How do the provisions of the Civil Liability Act 2002 (NSW) apply to the claim? Do you foresee any difficulties the plaintiff may encounter proving her damage?

This problem is designed to help you to consider an actual assessment of compensatory damages for personal injury. It aims to demonstrate the principles that the courts use and to look at the effect of the Civil Liability Act 2002 (NSW) (referred to as CLA) which imposes thresholds and limits damages recoverable. The discussion notes which follow the problem will assist you.


Georgia is now 25 years old and was injured in an accident caused by the negligence of her older brother Jim, 2 years ago. The accident was not a motor vehicle accident, nor was it a workplace accident. It occurred on Jim’s rural property in NSW. Jim was insured at the time of the accident for the risk which eventuated.

Prior to the accident Georgia worked as a personal trainer and ‘Pilates’ instructor, though 5 years ago she had commenced a part-time 4 year university degree course to qualify as a physiotherapist. Georgia was doing fairly well (she had a credit average mark) at the course up until the accident, though she has not been able to study or to work at all since then. She was in the 3rd year of the degree when the accident occurred. A fully qualified physiotherapist now earns $800 a week net in a full time job. Before the accident Georgia was working almost full time (about 30 hours per week) earning an average of $500 net per week.

Georgia suffered a number of injuries in the accident including fractures of her first and second cervical vertebra, a comminute fracture of her right arm, severe lacerations to her right hand and upper leg, amputation of her right thumb and forefinger, as well as severe facial lacerations.

After the accident Georgia was in the spinal unit at Royal North Shore Hospital for 8 weeks. During that time she was not able to mover her upper body at all. She now

has permanent disabilities as a result of her injuries. Movement in her right arm below the elbow is severely restricted. Her spinal movement is very restricted so that she cannot twist her body in any direction. She has constant neck and right shoulder pain when engaging in any kind of physical activity or any activity requiring constant movement of her neck and shoulder. She has significant scarring on her right hand and she is very embarrassed about the look of the hand without the thumb and forefinger. She is unable to play piano, which she did for pleasure before the accident. She cannot perform many of the ordinary daily tasks she did prior to the accident because of the loss of dexterity of the hand (she is right-handed) and the restricted movement of her shoulder and spine. Georgia also has 2 scars on the right side of her face, each about 2 1/2 centimetres long, running in a horizontal direction across the cheek under the eye.

Georgia is unable to perform any of the physical activity which her pre-accident employment required and nor is she able to complete her degree in physiotherapy. Before the accident she was a keen sports woman. She skied, swam, cycled regularly. She is now unable to engage in any sports.

Georgia will be unfit for any work which requires physical activity or exertion of any kind. She may in time, be able to undertake employment of a sedentary kind, perhaps some kind of office work, though the loss of dexterity in her right hand will be an impediment, especially to development of keyboard or other similar skills.

She has incurred medical expenses to date of $50,000 which have been paid by Medibank. Her doctors advise that she will require physiotherapy twice a week (at a cost of $100 per week) for the next 10 years. Georgia will also need domestic help at least for 3 years for 12 hours per week. Georgia’s mother Molly and her brother Jim have been providing this help since Georgia’s release from hospital and say they will continue to do so. The market cost of these services is at present $25 per hour.

Assume you are the solicitor advising Georgia as to a settlement proposal for her claim against Jim. What dollar figure would you suggest might be an appropriate settlement amount? Will Georgia be able to satisfy any “threshold” to be able to recover ‘general damages’ under the Civil Liability Act 2002 (NSW)? Do not consider the question of legal costs. To make proper calculations, you will need to consult the actuarial tables (5% discount tables) which are attached.


The following notes about the problem will provide some guidance as to how Georgia’s damages might be assessed and demonstrate the complexity of assessment of damages in personal injury cases in NSW.

We shall look at each of the heads of damage raised by the problem and in respect of each, discuss the following:

relevant provisions of the Civil Liability Act - Part 2 Personal Injury Damages Civil Liability Act - Part 2 Personal Injury Damages

a possible figure - an assessment of the quantum of that head of damagethe Civil Liability Act - Part 2 Personal Injury Damages any evidentiary problems which may arise

any evidentiary problems which may arise in proving the damagefigure - an assessment of the quantum of that head of damage Non - Economic Loss

Non - Economic Loss - General damages

1. Pain & Suffering - Past & future

2. Loss of Amenity / Loss of Enjoyment of Life

3. Loss of Expectation of Life

4. Disfigurement

There are several sections of the Civil Liability Act 2002 (NSW) relevant to the assessment of non-economic loss.

Non-economic loss is defined in S 3 to mean one or more of: pain & suffering, loss of amenity of life, loss of expectation of life and disfigurement. Whilst Georgia does

not apparently have any loss of expectation of life, the other three types of loss are relevant to her case.

Section 16(1) provides that no damages are to be awarded for non-economic loss unless the severity of the plaintiff’s non-economic loss is at least 15% of a most

extreme case. So Georgia will have to establish that her disabilities etc are at least 15% of a most extreme case. She will need medical evidence to do this and her lawyers will make submissions as to what percentage of a most extreme case her non-economic loss would be. The court would then have to make a finding of fact as


the applicable percentage. Then s 16(2) & (3) would be applied.


16(2) provides that the maximum amount which may be awarded for

non-economic loss is $350,000 which may only be awarded in a “most extreme case”. This amount is indexed pursuant to s 17. The amount declared from 1 October 2013 is $551,500.

There are several cases decided in NSW on the question of what constitutes a “most extreme case” which was a phrase used in the Motor Accidents Act 1988 (NSW) and the judicial opinion is that the use of the indefinite article ‘a most extreme case’ indicates that there would be more than one kind of ‘most extreme case’ so that the phrase does not invite some kind of “grisly” comparison of catastrophic injuries. ( Matthews v Dean [1990] Aust Torts Reps 81-307; Southgate v Waterford (1990) 21 NSWLR 42; Dell v Dalton (1991) 23 NSWLR 528).

It is difficult to estimate the proportion of a most extreme case which Georgia’s general damages would be but certainly, given her permanent disabilities and

scarring, she would exceed the 15% threshold. She has suffered considerable pain

& suffering and will continue to do so. She is quite disabled because her range of

spinal movement is very limited and she has a partially disabled arm. She has a significant loss of amenity because she was a keen sportswoman. She should also

be awarded a sum for her scarring and disfigurement. It would not be inappropriate

to estimate her case as, say 30% to 40% of a ‘most extreme case’ so that consulting

the scale in S 16(3) she would be entitled to a sum between 23% and 40% of the maximum amount allowable for non-economic loss damages. The percentage figure would depend on the Court’s finding as to the proportion of a most extreme case, bearing in mind that ‘a most extreme case’ would be quadriplegia or something in that class - see comments to this effect by NSW Court of Appeal in Southgate v Waterford (1990) 21 NSWLR 427 at p. 440 concerning the same wording which is used in the Motor Accidents Act.

S 16(3) sets out a scale to be applied to determine the quantum of non-economic

loss. Under this scale if Georgia’s non-economic loss is 30% of a most extreme case she would be awarded $126,845 and if it is 40% her award of general damages would be $220,600.

S 17A of the Act provides that Courts may refer to earlier decisions when calculating

an appropriate award of damages, that is they may consider a ‘tariff’ - a range of damages generally awarded for particular kinds of injuries or disabilities.

At common law in Planet Fisheries Pty Ltd v La Rosa the High court had established that this practice was not permissible ((1968) 119 CLR 118 at 124-5 per Barwick CJ, Kitto & Menzies JJ; see also Thatcher v Charles (1961) 104 CLR 57 at 71-2 per Windeyer J). At that time damages were typically assessed by juries and it was thought that, in the absence of any "market value" for pain and suffering and the like, the jury was best placed to assign a monetary value to a plaintiff's non-economic loss and should not be distracted by what juries in other cases involving different plaintiffs had awarded.

By virtue of S 17A Civil Liability Act 2002 (NSW) the Courts will no doubt use previous cases to assist in a decision as to what proportion of ‘a most extreme case’

a given plaintiff’s non-economic loss will be. But whatever the case when matters go

to trial, the reality is that the vast majority of cases are settled out of court, and practitioners have always used "comparable" verdicts to determine an appropriate settlement amount. Indeed, there were (and still are) several publications commonly used by practitioners, which provide detailed information as to awards of damages for various kinds of injuries.

S 18(1) provides that no interest may be awarded in respect of damages for

non-economic loss. This is the reverse of the position at Common Law.

Economic Loss

1. Past Wage Loss

Since the accident Georgia has been unable to work. She was earning $500.00 net per week ($25,000.00 p. a net). The accident was 2 years ago so her wage loss to date is $50,000.00. She is entitled to special damages to cover this sum.

Under S 12 there is a ceiling on the wage loss which can be recovered. This is set at 3 times Average Weekly Earnings. This ceiling will not affect Georgia’s entitlement.

2. Loss of earning Capacity-Future wage Loss

Theoretically the compensation under this head of damage is for the loss of the ‘capacity to earn’ rather than the actual loss of future wages (see Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 658 per Barwick CJ). But of course, the quantum of the loss of capacity to earn is proved by proving what the plaintiff would have earned but for the accident i.e.: by proving what the future wage loss would be. As a result, often this head of damage is seen as for future wage loss, but that is not strictly correct.

General damages for loss of earning capacity would be calculated on the basis that Georgia who is now 25 years old would have worked till age 65 (retirement age) - that is 40 years in total. She cannot work at all in her pre-accident employment and she will be unable to finish the degree which she was ¾ the way through at the time of the accident. Had Georgia been able to finish her degree, she would have worked as a physiotherapist and earned an income commensurate with at least average physiotherapists’ earnings. She would need evidence as to the average earnings of physiotherapists. This figure could then be used to calculate future wage loss. The problem tells us that a qualified physiotherapist working full time earns $800.00 per week net.

S 13 of the Act provides that a court may make an award for future economic loss

only where the claimant satisfies it that the assumptions about future earning capacity or other events on which the award is based, are the most likely future circumstances for the claimant. In the present case Georgia should have no difficulty doing this as she was ¾ of the way through her physiotherapy degree and had been doing “fairly well” (credit average) at her studies. On the balance of probabilities, but for the accident, she would have completed the degree and worked as a physiotherapist full time.

S 13 (2) states that a court must adjust an award of future economic loss by the

percentage possibility that the plaintiff’s post-accident circumstances would have happened but for the injury.

At common law damages are discounted to take account of ‘contingencies’ or the ‘vicissitudes of life’: Norris v Blake (No 2) (1997) 41 NSWLR 49 and Malec v J C Hutton Pty Ltd (1990) 169 CLR 638.

In Malec the High Court stated:

the “

court assesses the degree of probability that an event would have occurred, or

might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded.”(at 642-3 per Deane, Gaudron & McHugh JJ).

The effect of S. 13 is that where there is any doubt as to the plaintiff’s future (and

there usually will be some room for doubt) the courts will discount the award for loss

of earning capacity downwards to reflect the uncertainty. In Georgia’s case her future

but for the accident, seemed fairly predictable so that any discount for this section would be minimal, say 10%. Though we are told there is a possibility (slim?) that she may be able to do some light office work in the future. This would affect her wage loss - she may in fact, be able to earn some income though we imagine nowhere near the sum she would have earned as a physiotherapist.

There has been some uncertainty in the Courts in NSW as to the effect of S 13(2). There is one view that S.13 (2) is simply a re-statement of the well-known common law principle of the discount for the ‘vicissitudes of life’ - which at common law was typically a discount of 15% ( MacArthur Districts Motorcycle Sportsmen Inc v Ardizzone [2004] NSWCA 145 per Hodgson JA). This view seems persuasive, though the NSW Court of Appeal does not seem to take a unified approach to S. 13 – see also Penrith City Council v Parks [2004] NSWCA 201.

So to calculate Georgia’s future wage loss, we ask what she would have earned per week, on present values and we award a lump sum that will provide her with that amount per week for the next 40 years - that is $ 800 .00 per week. The idea is that the award should be an amount that, if invested over the next 40 years would, allowing for interest earned and dissipation of the capital sum, provide an income of $800.00 per week (or the future equivalent). At the end of the period the capital sum would be exhausted. Actuarial tables are required to do this calculation.

In Todorovic v Waller (1981) 150 CLR 402 the High court held that damages for

future loss had to be adjusted to enable the present value of the future loss to be calculated, allowing for inflation, the present use of the lump-sum, future changes in wage rates and prices, and for tax upon investment income. It was held by the High Court that the appropriate adjustment or ‘discount rate’ should be 3%.

S 14 of the CLA sets the discount rate at 5% in the absence of any other rate

prescribed by the regulations (at present there is no other rate prescribed). The higher the discount rate, the lower the lump-sum, the plaintiff receives.

The wage loss is calculated on a net basis as the award is not taxable.

So, to calculate Georgia’s loss of earning capacity (future economic loss) we look at the 5% tables (attached) to see what sum of money discounted at 5% will produce an income of $1.00 per week for 40 years. We then multiply that sum by 800 to arrive

at a lump sum figure:

$917.6 X 800 = $734,080.00

Because of S13(2) we discount that figure by say, 10% to 15% (allowing for the chance that Georgia’s circumstances might not have turned out as she sought to prove - as discussed above):

So $734,080.00 minus

15% discount $110,112.00

Balance $623,968.00

3. Medical Expenses - Past & Future

Georgia has incurred hospital & medical expenses to date of $50,000.00. These have been paid by Medibank, but as the relevant federal legislation provides that

Medibank may recover the costs from Georgia, she is entitled to recover this damage and she will then have to repay the sum to Medibank. This is a past loss and is easily calculable. It is special damage.

As to future medical expenses, the same discount rate applies to the calculation of these, as does to future wage loss. So Georgia must provide evidence that her future medical expenses will be $100.00 (for her physiotherapy) per week. We are told she will need this for at least 10 years.

We look again at the 5% tables to see what figure discounted at 5% will produce $1.00 a week for 10 years and we then multiply that figure by 100:

$412.90 X 100 = $41,290.00

In a case like Georgia’s there would most likely be future doctors and perhaps

hospital and pharmaceutical expenses as well, but we have no details of these so cannot include them in our calculation.

4. Gratuitous Services - Griffiths v Kerkemyer claim

We are told that Georgia needs domestic help 2 to 3 days per week (a total of 12 hours per week) at present and since her release from hospital 2 months after the accident. The cost of such services is $25.00 per hour. But these services have been provided to Georgia gratuitously by her mother and brother.

At common law, the High Court clearly established in Griffiths v Kerkemyer that damages for gratuitously provided care or domestic services are recoverable on the basis that the plaintiff has lost the capacity to care for him or herself and should be compensated for that loss. In Van Gervan v Fenton (1992) 175 CLR 327 the high court held that the market cost of the services generally determines the quantum of the damage.

S 15 of the CLA contains some important restrictions on the award of damages for

gratuitous services. It does not affect a plaintiff’s right to recover for services which are not provided gratuitously (i.e. which the plaintiff has to pay a commercial rate for).

S 15 defines ‘attendant care services’ as services of a domestic nature, nursing, or

services that aim to alleviate the consequences of an injury. So the definition covers most types of ‘help’ services that would be provided to an injured person. ‘Gratuitous services’ are defined as services, provided by another person, for which the claimant has not paid or is not liable to pay.

S 15(2) provides that no damages are to be awarded for such services unless there

was a ‘reasonable need’ for the services, the need arose solely because of the injury in respect of which damages are sought and the services would not have been provided but for the injury. So there are no damages for services that would have

been provided in any event. (eg: ‘give & take’ activities provided by spouses to one

another –

S 15(3) sets a threshold below which no damages may be awarded – that is the

services must be provided (and needed) not less that 6 hours per week ("intensity" condition) AND for a period of at least 6 consecutive months "dureation" condition. Section 15(3) was amended following the decision in Harrison v Melhem [2008] NSWCA 67 which interpreted the intensity and duration conditions as alternatives. In

Hill v Forrester [2010] NSWCA 170 the Court of Appeal further criticised the drafting

of the provision. In that case the Court held by majority that once the duration

condition was satisfied, damages were recoverable for earlier periods of less than 6 months, and by a differently constituted majority that the intensity condition must be satisfied for every week in the qualifying 6-month period.

S 15(4) sets a ceiling for the damages payable for such services. Where they are

Van Gervan v Fenton (1992) 175 CLR 327).

provided for not less than 40 hours per week the total damages awarded must not exceed Average Weekly Earnings (AWE) of all employees in NSW as estimated by the Australian Statistician. If the services are provided for less than 40 hours per week then the ceiling is an hourly rate not exceeding 1/40th of AWE.

S 18 provides that the can be no interest awarded on damages for ‘gratuitous

attendant care services’.

Now, to calculate Georgia’s claim for domestic services:

The period from discharge from hospital to date is 22 months. Georgia is entitled to recover the value of the gratuitous services for that period i.e.: 22 x 48hours per month x $25.00 hourly cost (assuming the $25 hourly rate does not exceed 1/40 AWE in NSW)

= Total to date $. 26,400.00

She would also be entitled to damages for the future value of such services.

So we look at the 5% tables to calculate what amount would provide $1 per week for 3 years(the period for which she can prove she will need assistance) and multiply by $25 p. hr X 12 hrs p.w. = $300 p.w.:

So, $145.60 X $300 = $43,680 total

It should be noted that the decision in Griffiths v Kermeyer classified damages for

gratuitous assistance as an economic loss based on the plaintiff's need. In CSR Ltd v Eddy (2005) 226 CLR 1 the Court distinguished such damages from damages for the plaintiffs injury-caused inability to provide domestic or parenting services to others, which was classified as a non-economic loss of amenity. In response to this decision s 15B was inserted into the CLA to provide for damages for loss of domestic capacity to be assessed as an economic loss and not a non-economic loss. Section 15B contains similar thresholds to s 15, and further requires that the recipient of the assistance be incapable by age, or physical or mental disability, of performing the services themselves.

5. Interest on past economic loss damages - from date of injury to date of trial

S 18 Civil Liability Act governs the issue of awarding interest on damages – that is

interest on damages from the date of injury to the date of trial, which in some cases will be a substantial period.

S 18(1) provides that NO interest can be awarded on damages for non-economic

loss. This is the reverse of the common law position.

Nor is there any interest on damages for gratuitous attendant care services. Though it would be payable in respect of services for which the plaintiff paid or had to pay.

Interest on other damages (i.e.: economic loss) is payable, as at common law. There, it was common practice (a kind of ‘rule of thumb’) to calculate interest on continuing losses (eg: wage loss) by applying the rate to the whole of the loss to date and then dividing by 2.

The rate of interest is determined by S 18 CLA as the ‘Commonwealth government 10-year benchmark bond rate as published by the Reserve Bank of Australia’. The applicable rate at 10th December 2013 was 4.39%.

The interest calculation would be as follows:

Date of Accident: 2 years ago

Interest on Wage loss to date: $50,000.00 @ 4.39 % for 2 years = $4,390 but as loss was continuing, divide by 2 (applying ‘customary ‘rule of thumb’) = $2,195.

Interest on medical expenses to date is not really claimable as expenses have been paid by Medibank and Georgia has therefore not been out of pocket.

6. So Georgia’s total damages would be as follows:

Non-economic loss $220,600.00

(40% of a ‘most extreme case’)

Past Wage loss $50,000.00

Loss of earning capacity

(After allowance for ‘vicissitudes’) $623,968.00

Past medical expenses $50,000.00

Future medical expenses $41,290.00

Gratuitous Services to date $26,400.00

Future gratuitous services $43,680.00

Interest on economic loss to date $2,195.00

TOTAL $1,058,133.00

Readings which may be helpful for Week 12 but not prescribed:

Henry v Thompson (1989) Aust Torts Reps 81-541

Nominal Defendant v Gardikiotis (1996) 186 CLR 49; 136 ALR 1

Namala v Northern Territory (1996) 131 FLR 468

Thurston v Todd [1966] 1 NSWR 321

Davis, Damages for Personal Injury & The Effect of Future Inflation (1982) 56 ALJ


Graycar R, Compensation for loss of Capacity to Work in the Home (1985) Syd L R


Graycar R, Womens Work: Who Cares? (1992) 14 Syd L R 86

Graycar R, Sex, golf and stereotypes: Measuring, valuing and imagining the body in court (2002) 10 TJL 205

Riseley, Sex, Housework & The Law (1981) Adelaide L R 121

McLachlan, What Price Disability? (1981) 59 Can B Rev 1

Abel R, A Critique of American Tort Law (1981) 8 British Journal of Law and Society,


Week-by-Week Class Programme

1. 28/07/2014 Introduction; Trespass to the Person

2. 04/08/2014 Trespass to Land; Trespass to Goods; Defences to Intentional Torts; Wilkinson v Downton

3. 11/08/2014 Introduction to Negligence; Duty of Care and Public Policy

4. 18/08/2014 Breach of Duty

5. 25/08/2014 Proof of Breach and Causation

Hand in Class Participation Self-Assessment Form this week

6. 01/09/2014 Remoteness of Damage

7. 08/09/2014 Defences to Torts involving Negligence

8. 15/09/2014 Categories of Duty of Care

22/09/2014 Faculty non-teaching week

29/09/2014 Vice Chancellor's non-teaching week

ESSAY DUE 3rd October 2014 by 6pm

9. 06/10/2014 Pure Economic Loss; Negligent Misstatement

10. 13/10/2014 Omissions; Statutory Authorities

11. 20/10/2014 Vicarious Liability; Non-Delegable Duties; Concurrent & Proportionate Liability

12. 27/10/2014 Tortious Remedies & Assessment of Damages for Personal Injury

Self-learning modules and self-management skills.

The following topics are self-learning modules:

Detinue & Conversionskills. The following topics are self-learning modules: Statutory Regimes relating to personal injury in NSW —

Statutory Regimes relating to personal injury in NSW — Workers Compensation, Motor Accidentstopics are self-learning modules: Detinue & Conversion Nuisance Death Claims You should consider the materials on

Nuisanceinjury in NSW — Workers Compensation, Motor Accidents Death Claims You should consider the materials on

Death Claimsin NSW — Workers Compensation, Motor Accidents Nuisance You should consider the materials on self-management skills

You should consider the materials on self-management skills which appear at the commencement of the self-learning modules in the supplementary materials, which contain notes on each of the self learning modules. The self-learning modules are examinable .

Additional information


The Law of Torts is a body of law dealing with claims for redress for civil wrongs. It consists of principles, doctrines, concepts and rules which the courts have developed over some hundreds of years to define the circumstances which will entitle a plaintiff to sue for damages for compensation, or for some other remedy, where he/she suffers as a consequence of the 'tortfeasor's' conduct. In 2002 and 2003 there were some very significant legislative reforms of tort law in NSW and other States. This legislation has had a significant impact upon the law of torts.

There are many specific torts dealing with particular kinds of harmful conduct. In addition there is a comprehensive form of tort liability known as Negligence, which is likely to be relevant wherever one person carelessly causes injury or damage to another, even if the circumstances would also permit an action under a more specific tort.

Since all these torts have been fashioned from particular court decisions, it is necessary to study a good many cases in order to understand the nature and scope of the liability they represent. The reading guide is set out with this in mind. Students are expected to complete the required reading and to study the cases referred to in the readings in order to understand what bearing they have on the liability in question.

Many of the cases discussed are simply illustrations of rules and other features of the tort, and can often be summed up in short paragraphs, or even one sentence. Other cases are more involved, because the ideas and doctrines they deal with are more complex or technical. Some cases appear difficult because their point is not obvious and requires interpretation, or because their impact on the pre-existing law is unclear or disputed. Whilst the simpler cases will usually require some study of the relevant extracts in the casebook, the latter will require reading the original judgments, as well as reference to the opinions and analysis provided in the textbook.

Although the large bulk of modern tort law is relatively well settled, and can often be exemplified by citing definitive or leading cases, brief perusal of any textbook will show that in many areas there is still uncertainty, and that this may extend even to basic principles. Because courts have a duty to decide the merits of litigated cases where the law is in contest, it is natural for professional commentators and teachers to anticipate their answers to important questions of principle and doctrine, by their own analysis of the relevant case law.

Tort is still very much a 'live' subject. This description operates in two ways. Firstly, we await declarations from superior courts as to the interpretation of the ‘new’ tort law reform legislation and secondly, superior courts find it necessary from time to time to review and restate even well established doctrines. Although courts tend towards a conservative approach, they may give innovative decisions where the past law is clearly unsatisfactory. Where the law of torts is unsettled, unclear or controversial, students should try to form their own opinions. Students are expected to participate in this enterprise both because it will provide greater insight into the subject, and because it will help develop the specific intellectual skills used by lawyers when they analyse legal problems.

Law students will not expect to do this with much confidence until they have mastered at least a basic framework of established tort law. Nevertheless, even with those torts which appear in introductory sections of the texts, there may be as much discussion of important but unsettled points of law as there is exposition of clear doctrine, and the tort of Trespass to the Person is a good example. This means that a certain amount of analytical argument may be necessary to help establish the framework of a given tort liability.

In order to help cope with this feature (which some will find challenging and others frustrating), students are urged to attend and participate actively in their classes where most of the problems can be discussed and hopefully resolved. Students will only be able to participate fully in classes and to reap the full benefits of class discussion where they have done all prescribed reading BEFORE the class.



The ability to implement appropriate self-management and lifelong learning strategies including initiating self-directed work and learning, judgment and responsibility, self-assessment of skills, personal wellbeing and appropriate use of feedback and, a capacity to adapt to and embrace change.

You are required complete the following four “self-learning modules” on areas of tort law. You will need to manage your study time over the semester to ensure that you complete these modules independently; bearing in mind that the material covered is examinable in the final exam.

Following are some notes prepared by Michelle Sanson about self-management skills which you may find helpful.

What is Self Management?

Self management refers to the means by which individuals effectively harness resources and direct their attention and effort towards achievement of their goals. It encompasses:

Goals and plans – for oneself, one’s studies, career, and work life balanceeffort towards achievement of their goals. It encompasses: Self awareness – understanding oneself, ones strengths and

Self awareness – understanding oneself, ones strengths and weaknesses, ones personality, motivation, emotional intelligencefor oneself, one’s studies, career, and work life balance Self intervention – recognising challenges such as

Self intervention – recognising challenges such as stress, anger, perfectionism, anxiety, depressionones personality, motivation, emotional intelligence The rationale is that to succeed in our academic,

The rationale is that to succeed in our academic, professional and personal lives we need to manage the way we feel, think, and act.


Motivation refers to having the desire, energy and drive to act and persevere to achieve a goal. What motivates us to achieve is a goal or incentive, or a sense of lack or deficiency. Therefore motivation can be positive (desiring praise, reward, or satisfaction) or negative (avoiding criticism, punishment or disappointment). Motivation may be intrinsic (coming from within) or extrinsic (coming from outside of us. The following are examples of intrinsic and extrinsic motivation (notice that some are positive and others negative):


I find that really interesting

I am determined to achieve that outcome

I’ll hate myself if I don’t get it done

I really enjoyed learning about that

This is really meaningful for me

I can’t wait to see the finished product


I’ll graduate with a law degree

My friends will be impressed

I don’t want to let my family down

I’ll make lots of money

I can’t get a promotion until I get a degree

I will be a person of status in society

According to McClelland’s achievement motivation theory, motivation is based on needs:

1. need for achievement: ‘high achievers’ who are motivated to excel. These people need challenging but realistic goals, and feedback on their accomplishment;

2. need for power, be it personal power (to direct and control others) or social power (to organise others to fulfil

organisational objectives). These people need to lead and to persuade others;

3. need for affiliation: to create harmonious relationships with others and to feel accepted. These people need to work in teams and be well liked.

According to Bandura (1997) students are most likely to feel motivated if they:

Believe they can achieve a better mark if they work harder (as opposed to believing it is all about how smart you are, as a matter of fixed ability)(1997) students are most likely to feel motivated if they: Believe their action can achieve the

Believe their action can achieve the desired outcome (as opposed to luck)all about how smart you are, as a matter of fixed ability) Want to get good

Want to get good marks by deep understanding rather than rote learningaction can achieve the desired outcome (as opposed to luck) Being able to understand, monitor and

Being able to understand, monitor and control motivation is a subset of emotional intelligence. It is something that can be learned and practiced. Everyone loses motivation from time to time – it is just a matter of having strategies to re-motivate ourselves.

Goal Setting

Goal setting refers to the process by which people create specific, measurable and time targeted objectives for achieving desired outcomes.

We may have a dream or a vision of something, but to make it a goal, we need to make it specific. This means expressing clearly what you want (for example ‘I want to do a summer clerkship’ rather than ‘I want experience’), in a positive way (for example ‘I want to pass torts’ rather than ‘I don’t want to fail torts’), and realistic (for example ‘I want to achieve two credits and two distinctions this semester’ rather than ‘I want to achieve all high distinctions’). Once we have a clear, positively stated, realistic goal, we can work out the strategies we will use to achieve it. We can then break down each strategy into small action items, which together will move us towards our goal.

Let’s say for example our goal was to achieve a credit in Torts this semester. This could be expressed as follows:

Goal: To achieve a credit in Torts this semester

Strategies: Participation; Analysis; Exam Preparation

Action items:


1. I will go to 90% of the lectures and seminars

2. I will do the readings the day before class

3. I will contribute something to every class


1. I will meet in my study group every 2nd Tuesday

2. I will prepare three case notes a week

3. I will read one extra journal article every week

Exam Preparation

1. I will type up my lecture notes every Friday

2. I will add notes from my readings every Monday

3. I will do past papers during Stu-Vac

You can then write these tasks in your diary and tick them off when you have done them.

If you have a tendency to set goals and not accomplish them, maybe you need the following tools:

‘Going Public’ – share your goals with someone, and ask them to check up on you to see if you have got them done.and not accomplish them, maybe you need the following tools: ‘Rating Progress’ – get a piece

‘Rating Progress’ – get a piece of cardboard and chart out the action steps for the semester. Each time you do one, put a gold star on top of it.them to check up on you to see if you have got them done. ‘Reward Yourself’

‘Reward Yourself’ – create a system where you get a reward whenever you accomplish a certain number of action steps. Something good for you is best, like a walk around the block or a half hour break to watch your favourite TV show.Each time you do one, put a gold star on top of it. ‘Petty Punishments’ –

‘Petty Punishments’ – create a penalty for yourself if you fail (just small and petty, or else you might lie about it!). For example, tell a fellow student you will buy them a coffee if you haven’t done all your action items by the time you meet for your study group with them.block or a half hour break to watch your favourite TV show. 19/07/2014 (Spring 2014) ©


Detinue and Conversion are two torts which provide remedies for wrongful retention of or dealing with chattels.

Read Stewart & Stuhmcke, Australian Principles of Tort Law Chapter 6 pp 67-80 and the following notes in order to ensure that you understand the causes of action in detinue and conversion.


Detinue is the unjustifiable detention of a chattel in defiance of the plaintiff’s right to immediate possession. The essence of the tort of detinue is the refusal by the defendant to hand over possession of a chattel to the plaintiff who demands its return.

1. Title to Sue

Title to sue is the right to immediate possession (Jarvis v Williams [1955] 1 All ER 108)

2. Detention

Detention can be shown by proving that there has been a proper demand for the delivery up of the goods and evidence that the defendant persists to retain the chattel despite this demand. It may be that a demand is not technically essential but it is a clear way of providing evidence.

3. Demand

The demand must be unequivocal and may not require the defendant to do more than he is required by law or by any contractual arrangement with the plaintiff, to do. In the case of a contract between the plaintiff and the defendant, which governs the terms and conditions on which the chattel is in the defendant’s possession, the plaintiff’s rights to require return of the chattel will be governed by the contract. A good example is a leasing arrangement in respect of a chattel. Where the lessee is in default of the lease, then the contract will usually give the lessor a right to repossess the chattel. But such repossession must be in accordance with the terms of the contract. ( Lloyd v Osborne (1899) 20 LR (NSW) 190; Capital Finance v Bray [1964] 1 WLR 323)


Forms of Order


an action for detinue the Court may make one of 3 possible orders:


The payment of the value of the chattel and damages for its retention OR


The return of the chattel OR payment of its value plus damages for its retention OR


The return of the chattel plus damages for its retention.

(General Finance and Facilities v Cooks Cars [1963] 1 WLR 644)


The modern tort of conversion had its genesis in the action on the case for trover which emerged in the late 15th


Justice Dixon in Penfolds Wines v Elliot (1946) 74 CLR 204 defined conversion as –

A dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has the

property or special property in the chattel provided there is an intention on the part of the defendant to deny the owners right or assert a right inconsistent with it and the act results in the plaintiff being deprived of possession for an indefinite period which renders the chattel useless to the plaintiff.”

Central to the notion of conversion is an intentional or deliberate dealing with a chattel which constitutes a serious interference with the possessory rights of the plaintiff. Conversion involves a dealing with goods rather than simply an interference with their physical state. It is this aspect of the tort which distinguishes it from trespass, though some trespasses may also amount to conversion.

Conversion protects a plaintiff’s rights to dominion over goods. The issue of title to goods will often be central to a case

of conversion which may involve the court in finding which party has the better title to a chattel in order to determine

who has the right to possession and whether a conversion has been committed.

1. Goods the Subject Matter of Conversion

Any object may be the subject of a claim in conversion so long as it is capable of being personal property. (Doodeward v Spence (1908) 6 CLR 406)

Any tangible movable object capable of actual possession, including money as object not currency can be the subject

of a claim in conversion. (Orton v Butler (1822) 5 Barn & Ald 652)

Negotiable Instruments (cheques) can be the subject of a claim in conversion. (Wilton v Commonwealth Trading Bank [1973] 2 NSWLR 644)

2. Title to Sue - The Plaintiff’s Interest in the Goods

In general what is required is either actual possession at the time of the interference (dealing) or the right to the

immediate possession of the goods.

Consider the following legal entitlements a person may have to possess goods:

i. Bailment

A bailment gives the bailee actual possession of a chattel so that a bailee may sue in conversion. Where a bailment is

subsisting the bailee may even sue the bailor in conversion. The bailor has no entitlement to possession until the bailment has come to an end.

* Bailment at will

Bailee can sue on actual possession or Bailor can sue on right to immediate possession (Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust torts Reps 80-295)

* Bailment for a term

Bailee can sue during term.

Bailor cannot sue during term and cannot dispossess bailee (City Motors (1933) Pty Ltd v Southern Aerial (1961) 106 CLR 477; Citicorp Aust Ltd v BS Stillwell Ford (1979) 21 SASR 142)

* Bailment for limited purpose and bailee’s inconsistent dealing

Where the bailee commits an act wholly inconsistent with the terms of the bailment the immediate right to possession revests in the bailor who can then sue the bailee and or a third party for conversion. The great difficulty is in determining when an act inconsistent with the bailment is so serious as to cause the entire bailment to fall rather than simply being regarded as a breach of bailment which only entitled the Bailor to seek damages for breach of bailment (or contract). (Penfolds Wines v Elliot (1946) 74 CLR 204; Milk Bottles Recovery v Camillo [1948] VR 344)

(ii) Lien

At common law a lien is a limited right to retain possession of goods pending payment of a debt. Liens include the general lien, the artificer’s lien, the repairer’s lien and the lien of the unpaid seller. A lien is a defence, not a right of action, however a person with a valid lien has sufficient interest to sue third parties and owners of the title to goods in conversion ( Standard Electronics v Stenner [1960] NSWR 447).

(iii) Finders

A person who finds an object has a possessory title which is good against the whole world except the true owner. So a

finder has sufficient possession to sue anyone, other than the true owner, in conversion. ( Amory v Delarmarie 93 ER


Where a chattel is found on the property of a third party, the question which arises is who has a better claim to it – the finder or the occupier of the property? Following the relatively recent cases of Parker v British Airways and Chairman, National Crime Authority v Flack, the question is resolved depending on whether the property occupier “ manifested an intention to exercise control over the building and the things which may be upon it or in it” (Parker v British Airways [1982] 2 WLR 503

N.C.A. v Flack (1998) 156 ALR 501).

See S Smith, Finders Keepers (1998) 72 ALJ 857

3. Intentional Conduct in Conversion

The tort requires intentional (in the sense of deliberate) rather than merely negligent behaviour . There must be a positive act of dealing. It is the intent to commit the dealing which is relevant. Dishonesty is not required although deliberate fraud or dishonesty will fulfil the element required Ashby v Tolhurst [1937] 2 KB 242.

4. Dealings which Amount to Conversion

1. Disposing of Goods

Sale and delivery (Consolidated Co v Curtis & Son (1892) 1Qb 495)

2. Taking possession of goods

Consider when conversion by taking possession also amounts to trespass to goods and when it does not. (Fouldes v Willoughby 151 ER 1153)

3. Abusing Possession

Consider the situation of an act so inconsistent to the terms and conditions of the bailment so as cause the bailment to fall. Clearly such an act will also be a dealing amounting to a conversion. (Penfolds Wines v Elliot (1946) 74 CLR 204)

4. Transferring Possession

5. Withholding Possession

Unqualified withholding is a conversion (Flowfill Packaging Machines v Fytore (1993) Aust Torts Reps 81-244)

6. Denial of Plaintiffs Right (Motor Dealers Credit Corp v Overland Ltd (1931) 31 SR (NSW) 516).

7. Conversion by Co-owners

Where a co-owner A destroys goods or sells so as to alienate title from the other co-owner B then B may sue in conversion, but if A merely uses the goods even to the exclusion of B then this is not a conversion. (Parr v Ash (1876) 14 SR (NSW) 352; Kitano v Commonwealth (1973) 129 CLR 151)


Main Causes of Action

In old common law, there was not a single comprehensive means of protecting the proprietary interests of the individual from wrongful interference by thieves, borrowers, finders, and inter-meddlers generally. The law instead developed a series of torts and corresponding remedies which were available according to the nature of the plaintiff's interest. The remedies were: Trespass, for interference with actual possession; Trover, for interference with immediate possession and then Case, for interference with an interest not amounting to possession or immediate title thereto. In all these causes of actions the plaintiff was confined to an award of damages, the ordinary remedy for a tort. In addition to these remedies, the law also developed the unique writ of detinue. Unlike the other causes of action, detinue allowed for a proprietary remedy and thereby enabled the plaintiff to recover the chattels themselves rather than damages as such. The law further developed the interim remedy of replevin which was designed to restore possession of the chattel to the plaintiff pending the determination of the real issues in dispute.

In modern common law, the following causes of action are available in Australia:

1. Trespass to Chattels: The wrongful interference with goods in the possession of another. As a rule, the mere taking or exportation of goods without the consent of the person in actual or constructive possession amounts to trespass.

2. Conversion: This is the modern name for trover. The defendant may be liable in conversion when he deals with chattels in a manner inconsistent with the rights of the true owner e.g., buying or selling stolen goods. Unlike trespass to chattels, conversion thus protects the interest of the true owner of the goods and not the mere possessor. (This point is however subject to some qualifications).

3. Detinue: Wrongfully refusing after demand to deliver goods to the person entitled to possession of them. A demand coupled with a refusal to deliver is thus the gist of detinue. In England this tort has been abolished. The tort of conversion has been extended to cover what used to be detinue.

4. Replevin: By this action, the plaintiff (out of whose possession goods have been taken) may obtain their return until the right to the goods can be determined by the court. It is by its very nature a provisional remedy. Theoretically replevin could be applied to all cases of wrongful dispossession, however, it is primarily used in distress cases between landlord and tenant and in cases of repossession. In an action for replevin, the procedure

is for the plaintiff to apply to an officer of the court for a warrant of restitution; and deposit a security of a bond that he will prosecute an action for replevin and that if unsuccessful he will return the goods to the defendant.

The Relationship Between Trespass to Goods, Conversion and Detinue

Whereas trespass covered wrongful taking or asportation of chattels, detinue essentially dealt with wrongful detention. The law did not deal with situations in which D had wrongfully taken P's goods and subsequently converted them as such and was therefore unable to restore possession to the owner. The remedy of trover was developed to cover this situation. Indeed, the word "conversion" was coined from the fact of D taking P's property and subsequently converting it to his/her own use.

These forms of action overlap with each other as much as they differ. It has been said before that whenever trespass for taking goods will lie, that is, where they are taken wrongfully, trover (i.e. conversion) will lie. This is, of course, not always the case. For instance conversion will lie for a wrongful detention of goods which have not been wrongfully taken but trespass will not lie. Naturally where the taking and subsequent detention of the chattel are both wrongful conversion and trespass will lie. A much more important difference between trespass and conversion can be discerned in their theoretical basis. The theory of trespass is that the plaintiff remained the rightful possessor of the chattel with his possession temporarily interfered with or interrupted by the defendant's trespassory act. The plaintiff is thus required to accept the chattel when it is returned to him and to accept any damages awarded for the interference or loss of possession. The damages would invariably be lower than the full value of the chattel. On the other hand, the theory of conversion is that the defendant, by depriving the plaintiff of his property, has appropriated (or converted) such chattel to his own use or the use of another, and he must therefore pay for it. The plaintiff is consequently not required to accept the chattel when the defendant returns it. The plaintiff is entitled to the value of the chattel as to the time when it was appropriated. In effect, the defendant is compelled to buy the chattel.

Many interferences with goods involving the withholding of such goods from the person entitled to immediate possession provide bases for action in both conversion and detinue. To this extent the two torts overlap.

However, a plaintiff may want to sue in detinue because it allows the court in appropriate circumstances to order the defendant (detaining the goods) to return such chattels to the plaintiff and to pay for any losses sustained by the plaintiff as a result of the detention of the goods. A much more significant difference between conversion and detinue is that whereas demand and refusal constitute the gist of the action in detinue, they are only one of many possible forms of conversion.

For instance, no demand is necessary if conversion can be established some other way e.g., when D had wrongfully disposed of P's chattels. Here the plaintiff will maintain the action for conversion on the basis of a wrongful disposal and not a demand and a subsequent refusal. There are situations in which a demand and a subsequent failure to tender the goods to the plaintiff will not necessarily be actionable in conversion because a bailee does not become a convertor on demand when the goods are no longer in his possession. Furthermore, if a bailee damages or loses goods through negligence he cannot be sued in trover because in this tort liability is predicated solely on intentional acts of misfeasance. On the other hand if the bailee has wilfully disposed of the goods by delivering them to the wrong person, he is liable in conversion for the act but not for his subsequent failure to tender the goods on demand. In contrast, in detinue it is immaterial whether the bailee's inability to re-deliver is due to a prior intentional act of wrongful disposition or to mere negligence resulting in the loss or destruction of the goods.





You should read and make sure you understand:

The notes that follow, so that you have a general understanding of the scheme of the Acts.1999 (NSW) You should read and make sure you understand: Stewart & Stuhmcke, Australian Principles of

Stewart & Stuhmcke, Australian Principles of Tort Law , Chapter 1 Australian Principles of Tort Law, Chapter 1

You may find the following web sites helpful: (WorkCover NSW) (Motor Accidents Authority of NSW)



The 1987 Workers Compensation Act and the Workplace Injury Management and Workers Compensation Act 1998 are to be read as if they are both part of the same act, though if there is any inconsistency the later Act is to prevail


The 1987 Act (as amended) governs liability to pay compensation whilst the 1998 Act principally deals with rehabilitation and injury management and procedures for claims. “Injury management” is defined as the process that comprises activities and procedures that are undertaken or established for the purpose of achieving a timely, safe and durable return to work for injured workers (s42 (1)). The claims and procedures provisions were amended by the 2001 and subsequent amending acts and again by the 2012 amendments. `

The 2001 amending legislation set up claims procedures. Disputed claims may be referred to the Workcover Authority for assessment. Common law rights are so limited that common law claims by injured workers are almost certainly a thing of the past. Damages are limited to lost wages (past and future) and loss of earning capacity. No general damages are recoverable, nor are special damages under heads other than wage loss. Workers must rely on the Workers Compensation benefits instead of common law general damages.

The 2012 amending legislation makes significant amendments relating to provision for weekly and lump sum compensation and other matters.

The Workers compensation scheme:

CREATES RIGHTS ON A NO FAULT BASIS FOR INJURED WORKERS & THEIR DEPENDANTS (where a worker is deceased)and other matters. The Workers compensation scheme: IS IN ADDITION TO COMMON LAW RIGHTS BUT… Very



S 4 defines a WORKER as “a person who has entered into or works under a contract of service or apprenticeship with an employer…” The Act includes state government employees but Federal government employees have their own scheme.

What constitutes a “contract for service’ is still determined by reference to the common law: Zuijs v Wirth Bros; Stevens v Brodribb; Hollis v Vabu

Deemed workers:

Certain contractors (e.g. outworkers) & certain industries (e.g. cane cutters, timber fellers, fencers): Schedule 1 to 1998 Act.

INJURY is defined by S 4 (’87 ACT as amended):

Personal injury arising out of or in the course of employment arising out of or in the course of employment

Includes disease injuries only where the employment was the main contributing factor to the disease. Includes disease injuries only where the employment was the main contributing factor to the disease. Includes

aggravation, acceleration, exacerbation or deterioration of a disease only where the employment was the main contributing factor (s 4(b)). Diseases of gradual onset are included: ss15 & 16

Recess claims (s 11) (s 11)

Psychological injury (s11A), though there are some limitations. (s11A), though there are some limitations.

Does not include Dust Diseases (except in respect of mine workers) which are covered by Workers Compensation (Dust Diseases) Act (except in respect of mine workers) which are covered by Workers Compensation (Dust Diseases) Act 1942 (NSW).

Heart attacks and strokes are not compensable unless the nature of the employment results in significantly greater risk (s are not compensable unless the nature of the employment results in significantly greater risk (s 9B).

Journey provisions s10 – injuries received on a periodic journey (from home to work & back) are compensable, – injuries received on a periodic journey (from home to work & back) are compensable, only where there is a “real and substantial connection between

THERE MUST BE A CAUSAL CONNECTION BETWEEN THE EMPLOYMENT AND THE INJURY: the employment must be a “substantial contributing factor to the injury” (s 9A).

Serious & wilful misconduct of worker: S 14 disqualifies worker from entitlement unless the injury results in serious permanent disablement or death.


Periodic Payments - a weekly sum


S 36: For the first 13 weeks where a worker has no current capacity for work, s/he is paid the current weekly wage

rate calculated at 95% of the worker’s Average Weekly Earnings less the value of any non-pecuniary benefit the worker receives from the employer (e.g. car or house) OR the maximum weekly compensation amount under s 34 of the Act, whichever is the lesser. Overtime and penalty rates are not included.

Where the worker has some current work capacity the amount payable to the worker is reduced by the amount the worker is able to earn in suitable employment or the worker’s actual current weekly earnings whichever is greater.


S. 37: Where worker has no current work capacity - 80% AVE (less deductible of value of non-pecuniary benefits) or the maximum amount under s 34 whichever is the lesser.

Where the worker has some current work capacity the amount payable to the worker is reduced by the amount the worker is able to earn in suitable employment or the worker’s actual current weekly earnings whichever is greater.



Only where worker is assessed by the insurer as having NO current work capacity.





S 66 Lump sum compensation for permanent impairment only where the degree of impairment is greater than

10%. The section provides for the method of calculation of a lump sum. The section contains the formula by which the calculation is to be made.

No lump sum compensation for pain and suffering – repealed by 2012 amendments.

S 65A No compensation for permanent impairment resulting from secondary psychological injury.

Compensation for primary psychological injury only where degree of permanent impairment is at least 15%.


S 25: Wholly dependent persons are paid a lump sum, if more than one (typically, spouse and/or children), the sum is


Dependent children are entitled to a weekly compensation payment up to age 16 or 21 if student

Partial dependants are awarded a portion of the lump sum in the discretion of the Commission.

Note s 151AD (inserted by 2012 amending legislation) which provides that no damages for pure mental harm may

be awarded in favour of a relative of a worker, or any other person, against an employer in respect of death or injury

to a worker (except where the pure mental harm is itself a work injury).


S 59A Limit on payment of compensation for medical expenses provided more than 12 months after claim for

compensation UNLESS weekly payments of compensation are or have been payable to the worker. Limits on payment for treatment or service or related travel expenses given without prior approval of insurer (except treatment within 48 hours of injury or treatment exempted under WorkCover Guidelines) or provided by person not appropriately qualified or not registered under any relevant law.


61 Provision for Maximum Rates applicable for medical or related treatment.


63A Provision for Maximum Rates applicable for workplace rehabilitation services.


S 60AA Provision for home care services ,only where the need is certified by a medical practitioner & assistance would

not be provided but for injury & the degree of impairment is at least 15% or the assistance is temporary (not more than 6hrs p.w. for no more than 3 months).


There is a Minimum threshold below which a common law claim cannot be brought against the employer. The worker must be suffering at least 15% permanent impairment (or death of worker) S 151H

The degree of impairment is to be assessed by Medical Assessment under Part 7 of the1998 Act : S 151H(4)

The Worker must first obtain s 66 entitlement (lump sum) before a common law claim can be made: S 280A

Damages recoverable at common law are limited to past & future loss of income and loss of earning capacity: S


In calculating past and future loss of earnings a court must disregard any earning above the maximum amount of

weekly compensation payable under s 35: s 151I


A court must disregard earning capacity over age 65 when assessing damages for future lost earnings

There is 3 year limitation period to bring an action at common law: s 151D

A common law damages verdict or settlement finalises the worker’s claim permanently. There is NO ENTITLEMENT

TO FURTHER Workers Compensation payments at all: s 151A

The amount of weekly compensation already paid to a worker is to be refunded by the worker who obtains a verdict or settlement at common law : s 151A

An unsuccessful plaintiff may still be entitled to Workers compensation benefits.


Note: Most of the major provisions of the Civil Liability Act 2002 (NSW) dealing with the substantive law of negligence apply also to motor accident claims.

The Motor Accidents Compensation Act 1999 (NSW)

It should be noted that this legislation DOES NOT provide for a scheme of Motor Accident Compensation outside

the Common Law. Unlike the Workers Compensation legislation, the Motor Accidents legislation does NOT provide

a no fault scheme for compensation in respect of motor accident injuries (though, there are some special provisions

about “blameless accidents” and accidents involving children under 16). The ONLY remedy available to the victim of a

motor car accident in NSW is in TORT, so the plaintiff will have to establish a cause of action in negligence or perhaps, in appropriate circumstances, in battery. The Motor Accidents legislation makes special provisions as to the procedure for motor accident claims and places some limitations on the common law rights of motor accident victims, particularly with regard to damages recoverable.

You should read and understand the sections of the act referred to in the notes below, so that you have a general understanding of the effect of the Act.

The Act Commenced on 1.10.99 & applies to accidents after that date. The previous act, Motor Accidents Act, on 1.10.99 & applies to accidents after that date. The previous act, Motor Accidents Act, 1988 as amended applies to matters arising before that date.

The Act significantly alters and reduces common law rights of claimants to compensation for injuries received in motor alters and reduces common law rights of claimants to compensation for injuries received in motor accidents.

The Act was the result of political motivation: to reduce the costs of compensation, to reduce legal costs and therefore to reduce : to reduce the costs of compensation, to reduce legal costs and therefore to reduce the cost to NSW motorists of the compulsory “Green Slip” third party insurance for motor vehicles.

The Act provides for an assessment and settlement procedure which is designed to keep the vast majority of cases out of the court system. which is designed to keep the vast majority of cases out of the court system.


1. “Motor accident” is defined as an accident or incident involving the use or operation of a motor vehicle causing death or injury during the driving of the vehicle or a collision or action taken to avoid a collision or the vehicle’s running out of control (s.3).

2. “Injury” is defined as Personal or bodily injury including pre-natal injury, psychological or psychiatric injury, or damage to artificial members (s.3).

The following sections should be particularly noted:

Section 3A entitled “General restrictions on application of Act” provides that the Act applies only in respect of death or injury caused by the FAULT of the owner or driver of a motor vehicle.

Section 7A entitled “No fault claims - children and blameless accidents” extends the operation of the Act for limited purposes to some motor accidents that have not been caused by the fault of the owner or driver by ‘deeming’ such accidents to have been caused by the fault of the owner or driver.




“blameless motor accident “ is defined as one not caused by the fault of the owner or driver of any motor vehicle

involved in the accident and not caused by the fault of any other person (s 7A). In Axiak v Ingram [2012] NSWCA 311 it was held that a plaintiff's contributory negligence does not