Week 13:

Torts

Revision
Tracey Carver
3138 4341
t.carver@qut.edu.au
 The Exam
• Tuesday 14 November
– Check your room and exam time via eStudent
• Worth 55% of your final mark
– 55 marks
• 30 minutes perusal
– Notes allowed on the Examination Paper
(question sheets) only
• 2 hours and 10 minutes working
• Closed book
– May only take writing implements into the exam
– No electronic devices
– Legislation will be provided
 The Exam
• Students must answer 3 questions
• Question 1: Compulsory question
– 25 marks (about 60 minutes)
– Will cover the following areas:
• Introduction to Negligence & Established Duties of
Care (Week 4: Part A)
• Breach of the Duty of Care (Week 7)
• Damage (Weeks 8 and 9) – excluding concurrent
tortfeasors and proportionate liability
• Defences to negligence (Week 10),
Remedies (in general), Onus of Proof and
Time Limitations
 The Exam
• Questions 2, 3 and 4: Answer 2 out of 3
– Each worth 15 marks (about 35 minutes each)
– Will, in the main, be drawn from across the
remainder of the unit’s individual topics from
Weeks 4 to 12
• Vicarious Liability & Non-Delegable Duties of Care
• Novel Duties of Care
– Negligence Claims for Pure Psychiatric Injury
– Negligence Claims for Pure Economic Loss: Relational Loss
• Assessment of Damages for Personal Injury
• Alternative Methods of Compensation
– May also assess areas covered by Question 1
 The Exam
• Questions:
– May be in parts
• Look at allocation of marks to parts – indicates how much
detail required
– May include a relevant part of the unit already
assessed in the MCQ
– May include problem and short essay questions
– Will not be on:
• Introduction and Trespass (Weeks 1 and 2)
• Nuisance (Week 3)
• Legal interviewing
• Concurrent tortfeasors and proportionate liability: SG [8.5]
• Negligence of a legal practitioner and the Legal Profession
Act 2007 (Qld): SG [7.5]
– See further “Assessment” / Examination on Blackboard
 In the Exam …
• You will be expected to identify causes of action and
issues, state the law, and apply the law to the facts, or
question, given to form conclusions
– This will be the focus of the exam
– Marks are allocated for both stating “relevant” law, and for
applying the law to the facts given to form conclusions
• Demonstrates your understanding of the law
• Irrelevant material does not lead to a “loss of marks” but it means
you have taken up valuable time and you will get no marks for it
• Marks are not deducted – you start with zero and then gain marks
• A small portion of marks in each question will be awarded
for the provision of an authority for main points of law:
– Prescribed cases
• Exception: Established duties of care (Week 4)
– Sections of prescribed legislation
• A failure to provide authorities alone will not result in you
not passing a question
 Exam Techniques
See further: ISAACs Problem Solving – Requirements in LLB102
Torts Assessment (under “Assessment” on Blackboard)
• Do not start your answer by rewriting the question / facts in
your own words
• No need for citations of the cases used as authority
– The case name will be sufficient
• Do not write out in full the sections of the legislation you are
citing / applying
– Rather, paraphrase the section as you apply the law to the facts and
provide the section number etc as authority
• Do not indicate that an element is or is not satisfied by using
 or 
– You must illustrate the ISAACs problem solving method by stating the
law and applying it to the facts to form argument (in words)
 Time Management
• Use your perusal wisely (30 minutes)
– Choose your 2 non-compulsory questions and plan your
answers to all questions
– Make sure you transfer important notes into your answer
booklet
– Start with the question you can answer the best
• Stick to the time allocated according to the marks per
question
• If running out of time, note further actions / elements /
application as quickly as possible
– Even if then in dot point or note form
– Try to use “meaningful dot points”
• If you finish early, go back and improve your answers
 Time Management
• If you get stuck, stay calm and think
– If you’ve forgotten a detail or an authority, just keep going on
with what you do know
• If the same action or issue arises in a question,
refer back
– But only if in same question!
• The answer to each question is written in a separate answer booklet
– This includes things like time limits and onus of proof etc ...
• Can use accepted shorthand (but not your own personal
method!)
– CLA = Civil Liability Act 2003
– P = plaintiff; D = defendant
• Do not use PRETTY COLOURS !! 
 Keep in Mind ...
• Read the instructions carefully
– If it states to advise in negligence then only advise in
negligence (even if you think there is another action)
– If “full advice” asked for, go through everything!
• Only address relevant issues
– Clearly write relevant law only. Do not simply write
out all the law you know on an area
• You do not need to refer to the facts of a case
every time you use one as an authority
– Only refer to the facts of a case if the facts of the
question that you are given is similar or if you can use
the facts of a case to support your argument on a
point
– Only need to know the facts of prescribed cases
 Preparing ...
• Take your guidance from the information
gathered through lectures and tutorials
– Supplemented with an understanding of the
facts and principles of the prescribed cases
– Summarise and learn
• Practise your writing!
– Prepare as much as possible in long-hand
• Practise identifying issues by reworking /
working through your tutorial and past
exam and revision questions
 Practice Exams and Feedback
• Example Exam Questions, Answer Guides,
Examiners’ Feedback and Student Answer
“examples”
– Available from the LLB102 Blackboard site
• “Assessment” / Examination
• Past Exam Papers
– Available from the LLB102 Blackboard site
• “Learning Resources” / QUT Readings
 Exam Consultation
• A timetable of when staff are available leading
up to the exam is on our office doors and on
the Blackboard site
– You are welcome to phone, email or attend in
person during those times
• Staff will only be available for consultation at the times
listed
• To ensure equality of access, each consultation will be
limited to 10 minutes
– Please only email specific questions and include
your phone number
• That is questions requiring a yes/no or short answer
• Staff will not be in a position to provide lengthy advice by
email
– Unfortunately, staff are unable to read over your
study notes or attempts at practice questions
during this time
 Negligence
• Action on the case
– Involves indirect interferences
• Plaintiff must prove each of the elements
– Duty of care
– Breach of the duty
– Damage
• Only then is there a shift to the defendant to
prove any defences
• Remedy – compensatory damages
• Time limits
• Start off by identifying:
– Parties and the interference / alleged negligence
Betty and Jan are neighbours out in Western Queensland. They often get together
to do some cooking. Last year they were making their Christmas puddings together
at Betty’s house when Betty cut her left hand rather badly while chopping up dried
fruit.
Jan said, “We’d better drive to the hospital and get that fixed up.” Once at the car,
Betty stated, “You drive my car, Jan. I’m not going to be able to drive and at the
same time keep pressure on my hand to control the bleeding - I can’t even fasten
my own seat belt.” Jan replied, “But Betty, you know I haven’t got my license even
though I’ve been trying for years. I keep failing the test and I am truly hopeless. I
don’t even have a learner’s permit anymore. Let’s see if my son can drive you.”
Betty, who wasn’t feeling well said, “Jan, please just hurry and get me to the
hospital.”
So Betty and Jan set off. In her haste to get her friend to the hospital, Jan was
driving on dirt roads well beyond the speed limit of 60 kilometres per hour. She was
going about 100 kilometres per hour when she came over the crest of a hill to see a
dingo sitting in the middle of the road.
Jan tried to swerve to avoid the dingo, but lost control and hit a tree damaging
Betty’s car. Betty, who was not wearing a seat belt, flew forward and hit the
dashboard. She broke two ribs. Jan, who had her seat belt on, was not injured.
Advise Betty fully on any negligence action available to her against Jan. Include
advice on defences, remedies, onus of proof and time limits. Do not advise on
defences relating to illegality.
 Duty of Care
• For established duties:
– Identify the established duty of care category and
provide a relevant authority
• Motor vehicle drivers, employers, medical professionals,
solicitors, occupiers, manufacturers, school authorities/teachers
– Identify the scope of the relevant duty
• See lecture and paragraphs referred to in the study guide
• Here:
– Established duty of care – driver to road users
(passengers): *Imbree v McNeilly; Bourhill v Young
– Must use reasonable or “proper” care to avoid a risk of
reasonably foreseeable injury to persons on the highway
or to persons and premises adjacent to the highway
 Breach: Step 1 – Standard of Care
• Establish the standard of care required by the
circumstances of the case
– Objective test
• *Imbree v McNeilly
– Always start by setting the “base standard” relevant to the
facts given ie: a reasonably competent ….
– Then check to see if there is anything on the facts which
requires you to consider whether that “base standard”
should be altered or
• Relevant CLA sections: s 46
• Hint:
– Always state the relevant standard according to the facts of
the problem in your answer
• Here:
– The standard is of a reasonably competent driver
– The standard will not be lowered due to Jan’s inexperience:
*Imbree v McNeilly
Breach: Step 2 – Breach of Standard
• *Wyong Shire Council v Shirt
• Answer by applying CLA s 9(1):
(a) Foreseeable?
• Must be reasonably foreseeable that the kind of carelessness
by the Def would cause damage of some kind to the Pl (or
the class to whom they belong)
• Must be “not far-fetched or fanciful”: Wyong
(b) Not insignificant?
• If the Pl was clearly at risk, then it cannot be said that the
risk was insignificant
• Here:
– Under s 9(1), it is RF that if Jan is negligent, in that she
drives without proper care and attention, drives when she
knows she can’t (says she’s truly hopeless) or doesn’t
ensure that Betty’s seat belt is on, that some kind injury
will occur to Jan or the class to which she belongs
(passenger)
– There is a clear risk of injury on the facts if adequate steps
are not taken
Breach: Step 2 – Breach of Standard
(c) Reasonable response?
• What would a reasonable Def do by way of response to
this RF and not insignificant risk?
• Answer this by applying CLA s 9(2)
– Consider all relevant balancing factors and provide relevant
CLA and common law authority
» Probability; seriousness; burden of taking precautions;
social utility
» Other relevant things: customary / professional /
statutory standards; anticipation
» Other relevant CLA sections: s 10

• Hint:
– Only address those balancing factors which are
relevantly raised for consideration by the facts
– Make a conclusion as to breach (on balance)
Breach: Step 2 – Breach of Standard
• Here under s 9(2):
– Probability of harm – high in the circumstances: *RTA v
Dederer
– Likely seriousness – high potential injury in the circumstances
as could lead to death: *RTA v Dederer
– Burden of taking precautions – call an ambulance / doctor,
drive more carefully / not drive at all, get Jan’s son to drive?:
*RTA v Dederer
– Social utility – in driving, and in driving so fast, she was trying
to get her friend to hospital. Utility in this context usually
requires some overall benefit to the community (to be
balanced against the threat of harm to the plaintiff through
the dangerous driving), not personal benefit
– Statutory standards – broke the speed limit; unlicensed driver
– will be evidence of negligence only: *O’Connor v SP Bray
– Anticipation – carelessness of the plaintiff (not fastening seat
belt): *RTA v Dederer or sudden emergency – dingo (was the
driver nevertheless exercising reasonable care in the
circumstances?): *Derrick v Cheung
– Make a conclusion as to breach (on balance)
• Note:
– If ss 21 and/or 22 of the CLA is raised on the facts
then consider under defences
• Section 21:
– Doctor does not breach a duty owed to a patient to warn of
risk … unless the doctor fails to give:
(a) Information that reasonable person in the patient’s
position would require to enable the person to make
a reasonably informed decision about whether to
undergo the treatment …;
(b) Information that the doctor knows or ought to know
the patient wants to be given …
• Section 22:
– A professional does not breach a duty … if they acted in a
way that (at the time the service was provided) was widely
accepted by peer professional opinion by a significant
number of respected practitioners in the field as competent
professional practice
 Damage: Steps 1 and 2
1. Identify from the facts the loss suffered, classify it and
consider if it is recognised at law
2. Factual causation
– If only one event/cause - CLA s 11(1)(a) will be satisfied if the
“but for” test is satisfied – because then the Def’s breach is a
necessary condition of the occurrence of the harm:
*Wallace v Kam or *Strong v Woolworths or *Adeels Palace
– If more than one event/cause
• Identify all possible causes
• Consider whether s 11(1)(a) is satisfied: *Wallace / *Strong /
*Adeels; and *Zanner
• If s 11(1)(a) cannot apply, consider s 11(2) in the “case of evidentiary
gaps” and apply the law from *Fairchild v Glenhaven Funeral
Services; McGhee v National Coal Board
– Any statement by plaintiff?: CLA s 11(3)
– Proved by the Pl on the “balance of probabilities”: CLA s 12;
*Tabet v Gett
 Damage: Steps 1 and 2
• Here:
– Damage recognised at law – physical injury
(broken ribs) and property damage (car)
– Factual causation – multiple causes of Betty’s
damage (Betty, Jan, the dingo!). However, s
11(1)(a) can still be satisfied as “but for” Jan’s
negligence / negligent driving, it is likely (on the
balance of probabilities) that Betty’s harm would
not have occurred
• Jan’s breach is therefore a necessary condition of the
occurrence of Betty’s harm: *Wallace / *Strong /
*Adeels Palace and *Zanner
 Damage: Step 3
3. Scope of Liability
CLA s 11(1)(b); 11(4)
– Was it RF that the kind of carelessness by the Def would
cause the kind of damage suffered by the Pl?: Wagon Mound;
*Chapman v Hearse; *Mahony
• Egg shell skull rule
– If more than one event contributes to the Pl’s loss, are any of
those later events intervening acts?
• Was the intervening act:
– (a) voluntary; and
– (b) a new and independent act (ie. not a RF consequence):
*Chapman v Hearse; *Mahony; Haber v Walker
– Was the Def’s breach a legally significant cause of the Pl’s
harm?
• Even though factual causation under s 11(1)(a) or (2) has already
been found
• Requires a consideration of:
- Whether the court is justified in imposing liability on the Def
- Whether, for some policy reason, the person responsible
should nevertheless be held not liable
• *Wallace v Kam; *Zanner; State Rail Authority v Wiegold
 Damage: Step 3
• Here:
– Scope of liability (s 11(1)(b), (4)
• Reasonable foreseeability - It is RF that if Jan is
negligent, in that she drives without proper care and
attention, drives when she knows she can’t (says she’s
truly hopeless) or doesn’t ensure that Betty’s seat belt
is on, that the kind of harm suffered by Betty (damage
to car, broken bones/ribs) may occur
• Intervening act – Does Betty’s failure to wear a seat
belt break the chain of causation?
– May be voluntary on the part of Betty, but is arguably the
very thing likely to happen (particularly if Jan doesn’t check)
• Legally significant cause – *Zanner v Zanner
 Defences
• Here:
– Contributory negligence : *Joslyn v Berryman
1. Was the Pl negligent?
– CLA s 23:
» Standard of care = reasonable person in the Pl’s position:
s 23(2)
» Breach of standard = consider s 9 principles: s 23(1)
2 Did that negligence contribute to or cause the Pl’s
reasonably foreseeable loss?
• Apportion liability: Law Reform Act, s 10;
*Pennington v Norris (CLA s 24?)
– Voluntary assumption of risk
1. Was the Pl fully aware of the risk?
– Presumed to be aware of obvious risks: CLA s 14 and s 13
2. Did they voluntarily accept the risk of harm (physical risk)
and that the Def may not exercise reasonable care
(legal risk)?: *Rootes v Shelton; *Imbree v McNeilly
Negligence & Pure Psychiatric Injury
1. Identify the parties, the action and the
interference / alleged negligence
Then…
Delia Simpson works as an in-house caterer for a firm that leases two floors in the
'Enterprise' building. The building is owned and maintained by Jagged Edge Pty Ltd.
Last February, as Delia rolled a trolley into the lift (or elevator) to deliver lunch to the
boardroom, the lift suddenly dropped to the bottom of the lift shaft with her in it.
Delia suffered spinal injuries from the impact.
Jagged Edge Pty Ltd knew that the lift was faulty but had negligently failed to repair it
or lock it down so that people could not use it. There was no way Delia could have
realised the danger before entering the lift.
On the day of the accident, Delia had been working with a colleague, Trixie Smith.
When Delia had entered the lift, Trixie had been following behind and was about to
step into the lift when it dropped. She heard Delia's screaming and the crash of the lift
hitting the bottom of the lift shaft. Although terrifically shaken at the time of the
incident, Trixie was not physically injured. However, because they were close friends
as well as work colleagues, Trixie visited Delia frequently in hospital.
During the next three months, Trixie became increasingly depressed and guilty about
her near escape - feelings worsened by witnessing Delia's continual pain during her
recovery. She knew that if she had taken the trolley she, not Delia, would have been
injured. Trixie is diagnosed as having a psychiatric illness - post-traumatic stress
disorder. She had previously gone through a divorce and had been treated for
depression.
With reference to relevant policy considerations, advise Jagged Edge Pty Ltd as to
whether they owe Trixie Smith a duty of care in negligence.
 What do you do?
• As a claim for pure psychiatric injury,
identification that it is a novel duty of care
and that the High Court’s multi-factorial
approach will need to be applied: *Sullivan
– Argue by analogy to the previously decided
cases in that novel duty category and the
factors they considered relevant
• It was a recognised psychiatric injury:
*Tame; *Annetts
• Reasonable foreseeability:
– Was it RF that if Jagged Edge Pty Ltd was negligent in relation to the
non-repair of the lift and someone is injured, that the plaintiff or a
member of the class to whom they belong (a witness to that injury)
may suffer psychiatric injury?: *Gifford
– According to Tame / Annetts, the following factors are now relevant
to RF:
• Normal fortitude - Would a person of normal fortitude who saw a
friend they worked with fall down a lift shaft suffer a recognised
psychiatric injury? : *Tame
– Arguably, yes. Therefore, as long as it would be likely to cause
psychiatric injury to one of “normal fortitude” it does not matter if
Trixie was more sensitive (previous treatment for depression)
• Direct perception - both the event and the aftermath (hospital) had
been directed perceived by Trixie: *Annetts; *Gifford
• Sudden shock – Although terrifically shaken at the time, the condition
took 3 months to manifest. There is some component of sudden shock.
But in any event it is not a pre-requisite for a duty to be found:
*Annetts
• Nature of the relationships
– A familial relationship is not required: *Gifford
• Trixie and Delia were good friends and colleagues,
therefore there are arguably “ties of love and
affection” between them. This goes toward a duty
being owed
• Control and vulnerability
– Relevant in *Gifford (and *Annetts) was the
employer’s control over working conditions and the
fact that the plaintiffs could therefore not protect
themselves from harm
• Jagged Edge had control over the repair of the lift.
There is no way that Trixie could manage that risk
or protect herself against it. Therefore, she is
vulnerable
• Indeterminate Liability
– Limiting the duty to persons who knew the victim and
witnessed the incident would arguably not give rise to
indeterminate liability: *Sullivan
– In the circumstances appears that Trixie was the only
witness
• Coherency
– Occupiers already owe a duty of care to entrants, so
liability may be consistent with that: *Gifford;
*Annetts
• Conclusion – arguable a duty would be owed
• Note:
– Don’t raise factors that are not relevant
• Here relationship between Pl and Def n/a