Introduction to torts: mod negligence structure, defences and acts 1. DOC 2.

Breach issue: has d failed to demonstrate reasonable duty of care. Also, finding of reasonable care=no breach=no liability failure to conform to standard of care as assessed by court as a matter of fact- the breach issue; Nova Mink v Trans-Canada Airlines [1951] Abandoned his usual flight route and flew another route, when the aeroplane flew over the mink ranch, the minks got upset and when they get upset they eat their young, this was property damage. So was there a duty of care? Airline said no, we wouldnt know about mink ranches, plaintiff said well you ought to. In the end, this didnt matter as regardless, there is no breach of duty as he HAD to depart from the route and fly low to protect passengers from risks of bad weather. 3.unless theres damage, negligence action cannot be founded and some harms will not be considered damage but economic loss is considered damage. Damage must be caused by breach. Not too remote. Recognised by law. Damages: physical injury compensable. injury or damage resulting from breach there must be a causal link between the defendant and the harm the causation issue; blood transfusion cases and cancer cases didnt know where blood was when it was infected with virus, who is to blame. sufficiently close connection between the breach of duty and the kind of harm sufferedremoteness; the less direct the claim, the more likely it is to be considered remote. lets say he owes duty of care and negligence sets off a series of losses, eg went to hospital because of the bus driver who hit him, med expenses =compensable, but garden overgrowing and wife dying as a result=non compensable.

Palsgraf v Long Island RR Co. [1928] - At Trial: argument was whether the railroad was under a duty of care for damage. Judge didnt give a ruling of law. Judge put the issue to the jury. Jury awarded Palsgraf $2000 - Railroad appealed: Palsgraf lost appeal 2 -1. The reasoning of the majority was to do with directness (remoteness issue) - the less direct the connection between the alleged wrong doing and harm the more likely not liable? The railroad through its guard must owe some sort of duty, even on early law possible to make out a duty of care. However the guard could not have forseen that Helen would have been harmed at all, damage was unforseeabel and unpredictable.
we dont use directness today but its a good way of looking at how remoteness is used. Lecturer says: Case precedes DvS, yet the railroad must have owed some sort of duty to Helen while she was on their premises, she was atleast some sort of invitee. However, it was not foreseeabl

Idea of remoteness FACTS: Claimant Palsgraph with her Children making her way for a picnic lunch in the beach in NY. Waiting for train. Palsgraf seated on the bench. Seated next to scales. Package that contained explosive fireworks by stranger fell on railway. Explosion had sent vibrations to her adjoining platform, sufficient to send the scales over, the scales fell upon Palsgraf and struck her neck and shoulder. Palsgraf suing the railroad for dmages (compensation for her injuries) Medical prognosis that it would be 18 months she would suffer with injuries.

General defences applicable in all torts: no? conduct on Ps part which indicates acceptance of the particular risk (defence of volenti non fit injuria): defendant may have agreed impliedly or expressly to a to accept a specific risk or a range of risks connected with the activity engaged in. Eg. In Rugby or in entering a sporting arena, diving cases, key issue is proper number of warning signs available. Volenti Is a defence. One is not volent by any means to everything and actions can be complicated. Ie. In professional sport one is not volent to violent tackles. or partially caused the harm which occurred (partial defence of contributory negligence); when d is responsible but p hasnt been careful either. Both d and p have been at fault here, legislative reform changed the effect of contributory negligence: what the act does is to state that the action will not fail entirely but the reward of damages will be reduced to account for ps careless conduct. Legislative change says: you dont disallow the action but you reduce the damages.so its not A PROPER DEFENCE. there are also specific defences, like for defamation for example. Acts well look at in torts: But Legsilation defeated it. 2 main pieces of legislation in torts: vi. Wrongs Act 1958 (Vic); s48 breach of duty - Codifiying provision - Restate from the case law factors which are relevant in determining whether there has been a breach of duty on any state of facts - the court must take into account all the circusmtances - the court must have regard to the level of risk ss71-3 mental harm - Ammendements introduced in 2003 - Depression when a person is seriously injured the consequences - Person not harmed but experiences harm of workmate. - Codifcication on case law. s25 contributory negligence - D was at fault. Legislative reform changed the effect of contributory negligence. - The act states that the action shall not fail entirely, But the award of damages shall be reduced to allow for the Ps own careless conduct. - If the P is to blame as well you dont disallow the action but you reduce the awarded actions. To call it a defence is an error. s15 survival of actions for estate of deceased - Negligence killed the claimant.

At common law the action required living claimant to pursue it. This is no longer the case except for defamation. In the rest of tort law the action survives. This is by statutory provisions. S15 if a person negligently kills the P the action survives and can be pursued by a personal representative who can be appointed by the courts who will represent the estate. First the estate can only win if the dead person could have won and any defences available against the deceased would be avaialable by the estate Estate stands in the shoes of the deceased. Defamation dies with the party, but with the rest of torts the action survives, if a person negligently kills the plaintiff, the action will survive, can be represented by an estate who stands in the position of the deceased plaintiff. Theyll only win if the dead person could have won.

Defamation Act 2005

what is tort? Civil law action in which a person (plaintiff) who is wrongfully injured by another (defendant) seeks a remedy, normally in the form of damages. the privity principle; Concept that you can only claim loss in contract. Only parties of a contract could enforce rights and liability. Tweddle v Atkinson (1861): T expected to get a sum of money on his engagement day, his father and father in law made an agreement to give him money. FIL dies on day of wedding, estate refuses to pay it because it was the father and FIL who had the agreement, T wasnt part of the agreement so he could not do anything. exceptions to privity: by C16 strict liability for escape of mischievous objects; the Rylands v Fletcher action; significant threat to community like fire, reservoirs, dams by C18 occupiers duty towards invitees; if theyre on ur land, ur responsible C19 injury caused by inherently dangerous goods; inherently dangerous goods that are put into circulation, Thomas v Wichester(check spelling) 3.foresight (d.o.c) Heaven v Pender [1883] per Brett MR liable because of the occupier thing Grant v Australian Knitting Mills [1936] Can either pursue it based on contracts or torts. underpants had sulphur, he could have fallen back on contractual agreement as a buyer so he has 2 options:torts and contracts Hayley v London Electricity Board [1965]

dug up public road, left a light and a sledgehammer there, Hayley was blind and fell into manhole, the question was: should he ought to be foreseeable? Yes, also because there was a large blind population in london at the time.

1.duty of care DUTY SITUATIONS: established categories: requiste duty of care is owed: a)manufacturer-consumer; Donoghue v Stevenson [1932]: owe a duty of care to a wide class of persons(consumers) Relevant to Dvs: Immediately using defective goods: Heaven v Pender [1883]: the rule includes the case of goods supplied to be used immediately by person or class of persons if he thought the goods would probably be used before a reasonable opportunity for discovering any defect and where the thing supplied is of such a nature that a neglect of ordinary care or skill as to its condition or the manner of supplying it would prob cause danger to the person for whose use it was supplied. Exception: This excludes situations where it would be a chance by whom they would be so used or whether they would be used or not or uncertainty in any of the above matters in previous paragraph. Including goods of such a nature that want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury.

b)users of the highway; owe each other DOC: Chapman v Hearse(1961), Watt v Rama (1972)

c)employer-employee (master-servant): Behrens v Bertram Mills Circus [1957]: there was a clear duty of care, taking a herd of elephants near the side show = chance of reasonably foreseeable risk. Facts:Circus. One of the side shows = act performed by small people. Big top=elephant acts. customer secured the lead of the dog to a crate outside sideshow. Later, the elephants were going past in single file, dog reared/barked at them so they trampled the sideshow and some people. d)occupier-visitor; s.14 Wrongs Act 1958 (Vic) Wheat v E Lacon & Cok Ltd [1966] If occupier has significant control of the land and they ought to realise that a failure to make an area safe ay injure those who come into that area, they are liable. . Australian Safeway Stores v Zaluzna (1987): In determining the liability of an occupier it is not necessary to determine whether they owe a special duty of care as an occupier or an ordinary duty of care. All that is required is to apply the ordinary principles of negligence. e)doctor-patient if you present yourself as being capable of amputating legs, you must take reasonable care. f)teacher-pupil;Barnes v Hampshire CC [1969]:

boy released from school 5 minutes before the proper hour, ran into road and was injured, the school breached duty of care to take reasonable precautions. g)the rescuer; Wagner v International RR Co.(1921) Person who created peril owes DOC to a person taking it upon themselves to reasonably risk their own injury by assisting in an emergency. Videan v British Transport Commission [1963]: Anybody who reasonably goes to assist is owed a duty of care. Young boy wandered onto railway track, didnt realise the danger as he was 6, adult station employee who got onto track to get him out of there was owed DOC. Established rules concerning: Illegal activity: Gala v Preston (1991) If plaintiff is engage in illegal activity when they sustained loss or injury, defendant does not owe a duty of care Intoxication: Cole v South Tweed Heads (2004) no general duty imposed on a supplier of alcohol to take reasonable care to protect plaintiff from the risk of physical injury as a result of self-induced intoxication. Motor Accidents Insurance Board v Scott [2009] It was not submitted that either the Proprietor or the Licensee owed a duty of care that required them to monitor or minimise the service of alcohol to Mr Scott. Intoxication DOC does exist in exceptional cases: Motor Accidents Insurance Board v Scott [2009].39 eg: those where a person is so intoxicated as to be completely incapable of any rational judgment or of looking after himself or herself, and the intoxication results from alcohol knowingly supplied by an innkeeper to that person for consumption on the premises.40 Blow J thought that it would be reasonable also to make exceptions for intellectually impaired drinkers, drinkers known to be mentally ill, and drinkers who become unconscious.41

If not in est category, to see if DOC owedAsk: would a reasonable man in Ds position have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff? Apply GENERAL RULE (usually for phys inj or prop damage): Donoghue v Stevenson [1932] you must take reasonable care(objective test) to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour(dnt think we need to establish this til later at breach:maybe jst look at neighbour principle first, ask tutor) neighbour = persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question (main bit to look at: neighbour principle) Lack of adequate precautions by inspection or otherwise may be characterised as carelessness BUT: Could be almost anything: Conception of legal responsibility may develop in adaptation to altering social conditions the fact that there is a contractual rship bw parties which may give rise to an action for breach of contract does not exclude coexistence of a right of action founded on negligence.

Physical inj and prop damage usually based on DvS: if someone is injured/prop damaged by my acts, normally its foreseeable. Reasonable foreseeability doesnt have to be precise: Chapman v Hearse (1961) To est doc: not necessary for plaintiff to show that the precise manner in which injuries were sustained is reasonably foreseeable: sufficient that the injury to a class of persons (of which he was one) might reasonably have been foreseen as a consequence. cherry was a member of a class of persons who was foreseeably at risk of injury from Chapmans conduct.

representations and duty of care: DvS: acts or omissions, therefore they used to rule out representations such as statements. Once again due to the notion of indeterminate liability, can a respresentation result in physical injury, if so, we can apply DvS. Statements causing different kinds of losses, normally financial, are rare:

i.resulting in physical injury-duty owed; Sharp v Avery & Kerwood [1938]

One member agreed that hed show the others the correct and safe route through the countryside, others followed behind, he carelessly drove off the road, the others followed and crashed. Held: he had undertaken a duty, they were owed a duty and could claim damages. Clay v AJ.Crump & Sons [1964] They plaintiffs were labourers on a demolition site, at one point they needed to knock away internal walls and needed to know whether it was safe to knock them away and it what order they could safely do it. The defendants were the relevant experts since they were the architects who had been maintained for the project, architects advised them how to proceed but the ceiling collapsed on them. Defendants made a representation about the safety, it has to be foreseeable, duty = not an issue here

ECONOMIC LOSS Laws reluctance to impose liability in an indeterminate amount for an indeterminate time to an indeterminate class: Yuen Kun Yeu v AG Hong Kong [1988] only those who are owed duty can sue, but if anyone who watches tv ad is owed duty of care etc then we cannot allow it, even if it is reasonably foreseeable. Ands: 1960s builders built flats, new owners of owed duty of care by original builders, duty could last 100 years. Time runs from the time of damage not from time of negligence. Plane crashed in a village, passengers owed duty of care but villagers whos property was damaged and who are suffering trauma from witnessing it are also claiming that they are owed. if financial advice is given gratuitously, broadcast generally, then we have an issue of indeterminacy, liability becoming expansive. Foresight isnt enough. There has to be a special relationship between P and D: i think that the authority for this was Mutual: ASK C Henderson v Merrett Syndicates Ltd. [1995] : Case concerns lloyt, if lloyt is sued, members of lloyt being sued. Around this time, lloyt found themselves having to call on names, to finance these payouts, the plaintiffs were a group of names, the names did not pay the agents, lloyts paid and provided them. No contract bw names and agents, names contended that the agents owed them a duty of care, this was denied. However, by giving advice to clients, they will clearly rely on it, duty owed derived from hedley. REAL issue is whether there was negligence: trial judge said yes in terms of how they were advised to make their investments, action won. Where advice is given to a specific person, such as hedley, or a group of people, such as Henderson, there is little difficulty determining whether there is duty and negligence as we can TURN TO HEDLEY. PROBLEMS arise when we are looking at a indeterminate class of persons as we can't use hedley, must be something which narrows the liability. As well as foresight, there must be something which creates a proximity bw adviser and plaintiff.

Spring v Guardian Assurance [1995] Straightforward case: P = employee of D, some new guy got him dismissed, D is a large insurance company, they have a code of practice under statute, under a provision of that code, they can only employ in responsible positions- a person of good character. Trial judge must have found that this was probably the reason that Mr H did not succeed. Ds had assumed it. Trial judge: while it was inescapable that the reference was maliciously provided, it would have been defamatory. Defendants would have decided that they had a duty under statutory scheme to They didnt have any reason to know the costings were going to bank and that a significant amount of money rested on the costings. so no duty: Tepko Necessary for P to prove that D knew/ought to have knwon info/advice would be COMMUNICATED to p either individually or as a member of an unidentified class.

MISSTATEMENTS CAUSING PURE ECONOMIC LOSS Hedley Byrne & Co.v Heller&Partners [1964] Requirements: 1. Sphere of expertise 2. Assumption of responsibility-Expressly or by implication from circumstances. 3. Reliance -by the other to exercise degree of care required by circumstances. 4. Reasonable to rely 5. D gave advice when he knew or ought to have known about reliance.

ALSO: according to Esanda case: In all circumstances must be reasonable that the plaintiff will rely on advice given. Foresight of damage alone WONT suffice: Dont use DvS: except for saying, law must so far as possible reflect standards of reasonable man. Representations must normally concern a business or professional transaction(rather than social/informal) Doesnt matter if its an innocent misrepresentation, still negligence. (mutual life 1) SHADDOCK V COUNCIL: Reasonable to rely: It was reasonable to rely on council as council was in position to have knowledge better than anyone and commonly followed practice of giving info as to that matter when requested. Would not have been reasonable to rely on unconfirmed answer given by an unidentified person on telephone.

Nature of inquiry:(their solicitor inquired) made it clear the gravity of the question and the importance of the answer. Has to be a serious matter.

D ought to have known about reliance: Council ought to have known they would rely. Would not have been reasonable for them to rely on phone call from unidentified person on phone but it was confirmed by certificate also.

Relevant to assumption of responsibility?: One who holds himself out as being in possession of special knowledge, especially when he has a monopoly of it and who further holds himself out as providing the info=subject to duty. Contrast with sphere of expertise: Liability not confined to those who have special knowledge or skill or competence in sub matter of statement(DEPARTING from mutual life case). LIABILITY EXTENDS TO THOSE WHOSE PROFESSION OR BUSINESS IS TO GIVE ADVICE OR INFO.

MUTUAL LIFE Relevant to sphere of expertise: DOC cast only on a person who carries on a business or profession which involves the giving of advce of a kind which calls for special skill or competence in the subject matter of the inquiry. The lordships made it clear that it is no hard and fast rule. Its just one step in step by step asertainment of limits of the new area (quote from shaddock) Reliance: requirement that its a serious matter Can be liable even if misstatement=honestly made and theres no contractual rship bw parties.

MUTUAL 1968 NOT 1970 (do we need to say it regained vitality after consideration in shaddock? Anyway, repeated in San Sebastian Pty Ltd v The Minister (1986)-more original?) Reasonable: circumstances must be such that it is reasonable in ALL the circumstances to rely Long list of circumstances: pg 189

ESANDA Reasonable foreseeability of loss=insufficient. Require assumption of responsibility and reasonable reliance. These= special rship of proximity. Necessary for P to prove that D knew/ought to have knwon info/advice would be COMMUNICATED to p either individually or as a member of an unidentified class.

That the communication of advice/info was for a PURPOSE that would v likely lead P TO ENTER INTO A TRANSACTION OF THE KIND p DOES enter into. Reliance: commonsense requires that special relationship of proximity is marked either by reliance or by assumption of responsibility. Reliance does not arise unless 1.person providing info/aadvice has some special expertise or knowledge or some special means of acquiring info which is not available to recipient 2.according to ordinary principles, it has to be reasonable to act on info w/o FURTHER INQUIRY 3. reasonable for recipient to act upon info for the purpose for which it is used. TEPKO: just goes through all the elements really well, great for structuring.

Mutual Life&Citizens Assurance v Evatt [1971] Evatt was a wealthy man with lots of investments, some of which were with a chain of electrical retailers called WG Palmer. Mr E was considering making another substantial investment in Palmer, he hesitated and wrote to Mutual Life asking for advice, he was a member of that company as he was a shareholder. Palmers was a subsidiary of mutual life. He got a favourable response, so he invested, he then lost that money because palmers folded soon after. Evatt said I relied on your response and wouldnt have invested without it. 3-2 Evatt, Morriss criteria: sphere of expertise, was not satisfied as mutual life was not in sphere of expertise whereas in hedley, they were. What lord m had said was not only within a sphere of expertise, but an ability to make careful inquiry COUNCIL CASE: If advice is given in regards to at least one of the functions, that will suffice, councils work is extensive, but it is sufficient that one of the sections can do so.

Yuen Kun Yeu v Att.Gen.Hong Kong [1988] D= minister at Hong Kong, anybody in the world was entitled to invest in any of the companies, minister had series of statutory powers, could take a company off the company listing, eg due to knowledge that the company was financially unsound. The minister did delist a comp based on its financial unsoundness. Both of the groups were contending that they had

put a lot of money in comp x. Minister attracted no duty of care towards those investors, ministers powers were extensive- including the listing but were not for the benefit of any particular investors, never put in place with a view to looking after ANY investors. Second, hedley distinguished, minister had no contact and no dealings with any of these investors, didnt do anything to bring himself under duty. Thirdly, rejected on policy matters as they were saying that he owed duty to whole world, too wide/extensive liability. In aus, decision followed in sandowwn??

Henderson v Merrett Syndicates Ltd. [1995] : Case concerns lloyt, if lloyt is sued, members of lloyt being sued. Around this time, lloyt found themselves having to call on names, to finance these payouts, the plaintiffs were a group of names, the names did not pay the agents, lloyts paid and provided them. No contract bw names and agents, names contended that the agents owed them a duty of care, this was denied. However, by giving advice to clients, they will clearly rely on it, duty owed derived from hedley. REAL issue is whether there was negligence: trial judge said yes in terms of how they were advised to make their investments, action won. Where advice is given to a specific person, such as hedley, or a group of people, such as Henderson, there is little difficulty determining whether there is duty and negligence as we can TURN TO HEDLEY. PROBLEMS arise when we are looking at a indeterminate class of persons as we can't use hedley, must be something which narrows the liability. As well as foresight, there must be something which creates a proximity bw adviser and plaintiff.

Spring v Guardian Assurance [1995] Straightforward case: P = employee of D, some new guy got him dismissed, D is a large insurance company, they have a code of practice under statute, under a provision of that code, they can only employ in responsible positions- a person of good character. Trial judge must have found that this was probably the reason that Mr H did not succeed. Ds had assumed it. Trial judge: while it was inescapable that the reference was maliciously provided, it would have been defamatory. Defendants would have decided that they had a duty under statutory scheme to They didnt have any reason to know the costings were going to bank and that a significant amount of money rested on the costings. so no duty: Tepko Welton v N.Cornwall DC [1997] P owned a farmhouse, adapted it so they could use it as a guesthouse. In order to do that they must be registered and local council inspects it. Since they were providing meals, their

kitchens etc had to be in compliance with council's regulations. New inspector came along and said Council bylaws had been changed, kitchen had to be demolished and redone, inspector knew someone who can do it for them. Closed for the summer and they had to live elsewhere. In the end they weren't happy with kitchen, when they investigated more they found out there were NO new bylaws, their old kitchen complied perfectly but the new kitchen doesn't comply. Trial judge: HedleyB: D knew they'd rely on his advice and suffer ec detriment, court awarded money wasted on new kitchen, rent lost and rent which P paid for alt accom.

Calvert v William Hill Credit Ltd [2009] D=large comp of bookmakers P's betting activities: net and telephone, became compulsive gambler. P contacted his bookmaker D to tell them to close his account, never open it, never take a bet from me again. D belonged to assoc of bookmakers who had introduced their own code of practice:should a client tell bookmakers he/she wanted a self exclusion, tell them its closed and there's a block on your account for 6 months. P thought there was a block on his account but no, they just closed it, didn't block him, he went back and gambled lots, he won but he spoke to another employee and entered into a self exclusion with Elaine(employee): but she didn't do ANYTHING. Again he gambled tonnes and lost. Sued D in negligence claiming to recoup that gambling loss, it is a PURE EC LOSS. He was not an indeterminate class, he was a client etc DUTY WAS IN PLACE. They were clearly negligent to their employees. He lost his case on other grounds NOT ON DUTY GROUNDS. Causation grounds: if he hadn't placed bet with D he would have placed bet elsewhere, he had other accounts open with other bookies.

9.acts or omissions resulting in economic loss: Weller v Foot&Mouth Disease Research Inst. [1966] D=scientific lab whose purpose was to find a cure for foot and mouth disease: a foot and mouth virus escaped from their lab, P said that= negligence. Virus got into environment and sparked off an outbreak of foot and mouth disease, those directly affected were owners of livestock in the vicinity and because of gov regulations the cattle would have to be destroyed. Other ppl were indirectly affected too. p=livestock auctioneers, the gov regulations also meant that no livestock could be auctioned. Held: D owed them no doc for their economic loss, whereas duty was owed to the owners of the livestock. the spectre of indeterminate liability. method of confining liability via duty. Legal rules come from CATTLE case.

i.the rule in Cattle v Stockton Waterworks Co.[1875] where the damage is direct economic loss, ie.follows directly from damage to Ps propertya duty of care arises; P= builder, D had flooded the land, but it wasn't builders land. His loss arose cause he couldn't pursue his project in a timely fashion- this caused him financial loss apparently. His claim was lost, he could not point to any damage to his property which D had caused. We can apply this in Weller case above. Can claim the REQUISITE property damage and then any ec loss that follows. Where we are considering acts or omissions or behaviour as opposed to STATEMENTS, it's a different area to HByrne. CATTLE CASE is the case to look at in this context.

Electrochrome Ltd v Welsh Plastics [1968] CHECK IT IS RIGHT CASE D were digging a public road, they should have known better than to sever an electricity cable, they cut off electricity to city, D was operating furnaces with molten metal in them, again the furnaces and metal ruined. So they had their initial prop damage, so they could attach to this the ec loss. It was their third claim which was rejected, machines were mended and ready to go but another 14 hours elapsed before they had electricity, they couldn't point to prop damage for this third claim, it was merely loss of profit, the cable belonged to elec company so it wasn't damage to P's prop. Perre & Ors v Apande Pty Ltd. (1999) British Celanese Ltd. v Hunt (Capacitors) Ltd. [1969] Neighbours on same industrial estate, D stored large quantities of small strips of metal foil, they were light and drifted about in factory air. One of the strips escaped out of the ventilation. One of the strips landed on exposed electricity bars(belonging to elec company) so the power went off to the industrial estate. P wrote to D and said take better care of your strips. When it happened again, claimants furnaces shut down, there was molten metal in the furnaces and it solidified, to get it out the repairers had to rip out the contents and reline and repair the furnaces. Because of the nature of the process involved, the stuff in the furnaces was now valueless. P claimed from D in negligence. Little point in claiming they weren't negligent considering prev incident. They were entitled to claim cost of repairs and were entitled to attach to it the consequential ec loss, they werent claiming any ec loss beyond that, cattle is the authority. Spartan Steel & Alloys Ltd. v Martin & Co. [1972] CHECK ITS RIGHT CASE

Fire hydrant belonged to water board but they had to turn it off the fix it. D could not use water in factory for a while, but it wasn't broken, D claimed loss of profits for the duration of the time when it was stopped to be fixed. LOST according to cattle. There was nowhere for the economic damage to flow from, no prop damage.

ii. outside of the rule: special factors can give rise to the proximity between P and D so as to invoke the duty of care; Caltex Oil Pty Ltd. v The Dredge Willemstadt(1976) Dredge owned by D. While he was working he was doing his best to avoid running over an undersea cable, he knew of it, he had a chart and a radar. Pipeline ended up becoming out of commission for lengthy period, Caltex had to adapt their premises so that they could send tankers around botany bay, puke up crude oil and bring it back. They were suing cause they said D caused the expenses associated with having to do that. Cattle case: P's property not damaged, it's not theirs so usually no duty would arise. it would just stop with repair of pipeline and loss of stuff in it. Caltex couldn't ask for money for loss of oil cause it still belonged to the other comp. Held: DOC had arisen because ON THEIR STATE OF KNOWLEDGE, d had ASSUMED it. Firstly D knew about the plaintiff, the premises and the business, they also knew specifically about the pipeline and ec interest of Caltex, they had also arranged their activities so as not to inflict the very ec loss which had agreed. These factors take Caltex OUT of the unknown class. There was no DOC beyond Caltex to Caltex's customers cause they're members of the unknown class Perre & Ords v Apande Pty Ltd. (1999) D also involved in potato industry so bound to be aware of the conditions of the industry and regulations concerning the potato industry and aware of plaintiffs business. D imported a new brand of potato from Holland and planted it in their Aus fields. They knew this potato was susceptible to a pest, they wanted their crop to suffer from it. They wanted to produce a pest free potato but to do that they needed pesty ones for their research. Held: they should have known that their field was within some kms of p's field, so the pests might damage the plaintiffs crops. It didn't actually afflict neighbours healthy crop however they should have know of regulations which prohibit export of potatoes which grown within 20km of any pesty potatoes. so p was not able to export any potatoes interstate, they could only sell within the state. 60 percent of their potato crisps were sent interstate. Suffered economic loss. Court followed caltex: should have known conduct was likely to inflict this ec loss. Does not extend to clients.

iii. wills cases: If it is discovered during his lifetime, but we didnt know whether doc was owed by the solicitor to the beneficiary, we didnt really know the type of loss, this hs been before courts elsewhere out of aus, the modern decisions found a doc on the solicitors part, duty was assumed to a specific person or persons and solicitors knew any detriment must be loss of a gift. when the position first presented itself in aus, it was the duty question was bypassed because it was held that there had been no loss because there was no.... errrrrrr confused... 2.09pm beneficiary is automatically exlcuded, P lost the prospect of the gift under the will. without any particularly impressive reasoning, hcourt said loss ....under a will is actionable damage. doc arose with statements and hedley byrne. hawkings and clayton: the case is distinguishable, Hawkins v Clayton [1988] Hill v Van Erp [1997] Sydney solicitors kept the only copy of a will at their offices. Beneficiary under will was also executor of the will. will filed. executor only discovered the death more than 6 years later. during that period the estate decayed as it wasnt looked after. eg house had been left neglected hcourt saw these claims as claims of ec nature, found to be negligent because it was encumbent upon them to take some reasonable steps to locate and inform the executor, brought themselves under doc.

iv.liability for lobsters; Muirhead v Industrial Tank Specialities Ltd. [1986] P went to D with a plan, they would construct a unique deep seawater tank, it needed an elaborate series of electrical parts, they went to a french company called leeroy summer and they supplied pumps to its for the tank P set it up, put his young lobsters in, one night, tragically it shut down over night and the lobsters were floating at the surface of the tank. he swiftly mitigated the loss, boiled them and refrigerated. he sued its and was successful, tank was not fit for the purpse for which it was supplied. he could claim all his ec losses but its went into liquidation and couldnt recover it. he then sued leeroy for negligence, apply cattle case: he can claim for prop damage the dead losters and loss of profits and the wasted money attending to the pumps

Building cases: Council and architechts liability to clients:Voli v Inglewood Shire Council (1963) Liabilities of architect to his or her clients: must bring to the task he undertakes the competence and skill that is usual among architects practising their profession. He must use due care. If he fails and client loses money, hes liable under contract and tort. Architect not relieved of duty just because plans submitted to Public Works Department (PWD)(council ppl) and no objection was made by them Council had duty to make sure premises safe for purposes used: Council liable for negligence of architect even though independent contractor: the case is one of those in which an employer remains liable to third parties for the consequences of the negligence of an independent contractor, just as he would be if it were his own negligence or that of his servant. directly liable for failure of officers inspecting plans. Council and architect should bear damages equally. Liability to third party, for the reasonably foreseeable consequences of careless or unskilful conduct, an architect is liable to anyone whom it could reasonably have been expected might be injured as a result of his negligence. Obligation not co-extensive with subsequent occupier.? Does it extend to subsequent owners? Designer of a structures duty to ppl erecting the structure: Slivak v Lurgi (Australia) Pty Ltd (2001) The person who designs the structure has a duty to ensure so far as is reasonably practicable that the structure is designed so that those erecting it are safe from injury and risks to health. It is not a duty to ensure that those erecting the structure are safe from injury and risks to health. The fact that design measurements do themselves descend to millimetres is in my opinion, itself a clear indication that precision is intended, important, and requiring of strict adherence. The primary judge and the Full Court were therefore right to dismiss Mr Slivak's case against the designer. Had the cell plate in question and its support structure conformed to design or to the design tolerances specified by Lurgi, it would have been properly supported and would not have fallen. To determine what is reasonably practicable it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

Builder of house owes duty of care to subsequent purchasers if defective quality of building work causes pure economic loss: Bryan v Maloney (1995) : if theres no intervening negligence or other causative event, the causal proximity between the loss and the builders lack of reasonable care is unextinguished by either lapse of time or change of ownership

it is obviously foreseeable by such a builder that the negligent construction of the houseis likely to cause economic loss Principles which were engaged in this case depended on the assumption of proximity which =assumption of responsibility or known reliance or a combination of the two? where the economic loss follows directly from damage to Ps property- a duty of care arises; Weller v Foot&Mouth Disease Research Inst. [1966]

Liability to subsequent purchaser, Defect in work performed by independent contractor, builder not obliged to inspect contractor's work: Zumpano v Montagnese [1997] The class of persons to whom is owed the duty of care actually recognised in Bryan v Maloney is purchasers of the house. On the alternative submission now being considered, the class of persons to whom the duty is owed is not purchasers of the house but only such of them as have bought the house as a builder's own home. According to Bryan v Maloney, as I understand the basis of the decision, a builder erecting a house under contract with the building owner should have in contemplation, as persons who may be financially injured if there is negligence in the construction of the house, any person who may purchase the house at any time after it has been erected On the alternative submission put forward by the Montagneses, a builder must have in contemplation, as persons who may be affected by a want of care in the construction of the house, some only of the class of possible purchasers. Should the builder, 40 or more years before the house being sold, have had in contemplation when he built the house the possibility that after his death an auctioneer might announce before bidding commenced that the late Mr. Jones was a builder and had built the house for himself? I do not think it possible to define the suggested class in a satisfactory way, or appropriate as a matter of policy that a duty of care should be recognised for the benefit of the suggested class. I therefore respectfully differ from his Honour and conclude that no duty of care should have been held to exist in this case. Appeal allowed, builder side won. Requirement of vulnerability to economic consequences of negligence: Woolcock Street Investments v CDG Pty Ltd (2004) Vulnerability can be by reason of ignorance or economic, social or political constraints or because they were exposed to a risk which they were unaware of and could NOT have protected themselves from. Decisions after Bryan and Maloney reveal that proximity is no longer the determinant in this area.

Other: eglost opportunity,mere grief: where there is no duty , eg a person misses an interview because of conduct. Harriton v Stephens (2006) : harriton went to see her gp stevens, she explained that shed been recently very sick and she believed that she was pregnant, she also felt that she had german measles and she learned that shed been close to some people who had german measles, she was well aware of the implications of the foetus if she was correct. P thinks she has german measles, told D that if she was right, she wanted abortion. D, on basis of tests he ordered, tells her no measles. Baby then born with severe defects, which meant that she MUST have had measles. The CHILD sued the doctor. No argument of duty of care and negligence. Complications: In watt and rama, the driver clearly CAUSE D the injury But the doctor didnt CAUSE the downs syndrome Public policy requires that we cannot endorse this as damage deserving of compensation, how can we compare non existence with existence and say that the non existence is worst. High court denied claim, wrongful life does not constitute damage.

policy factors; reference to influences on decision which are other than precedents. ii.government & resource allocation: eg. A person is injured and waits for three hours for an ambulance and dies, the persons case is that the crew were negligent, they should have got here earlier: standard negligence claim vs government should have put more ambulances on the road so they were negligent. You cant do this one as gov and resource allocation is considered to be non judicial.

iii.insurance: presence of modern third party liability insurance, compensation is spread amongst users or consumers of goods and services. Not very often that one can point to an organisation, certainly not an insurance company, going broke.

DUTY TO CONTROL OTHERS ARISES WHERE:

a)where special relationship exists; Carmarthenshire CC v Lewis [1955]: Held: they did owe a duty of care, the duty was that of maintaining control over the youngsters, having regard to what youngsters may do. Facts: P occupied and ran primary+preschool. Large green bars and gates around perimeter. Kindergarten teacher was in charge of 2 children in yard. She was absent for a matter of minutes. 4yo ran to gates, unlatched, ran out. Busy road outside. P had to swerve to avoid boy, P died. Negligence =Failing adequately to secure the gates. Reasonable foresight, dvs P: of a foreseeable class.

b) where responsibility is assumed; Holgate v Lancashire CC [1937] D assumed control of the mental person as he was in Ds institution, therefore D owed duty when mental person escaped and hurt P. Detained in a psychiatric institution because of a history of mental illness which included a tendency to assault people violently. circumstances of his escape was found to be negligent. He assaulted P. Kirkham v Chief Constable Manchester [1990] Police officers arrested Mr K. Mrs k told the police officers about Mr Ks propensity for self harm, capable of suiciding. Police officers failed to indicate suicide risk in the form that was given to prison officers (form specifically asks). He hangs himself. The police officers had assumed a degree of control over Mr K.Yes there was a duty of care, while generally they owed no duty to him in the first place.

Cf: Nsw: police noticed a gentlemen acting suspicious with garden hose, suspect he might kill himself, but in the end it was held that they did not have sufficient control and therefore no doc. Analogous to a rescue situation.

Home Office v Dorset Yacht Co.[1970] 7 boys in rehabilitation. One weekend, out with supervisors, boys escaped from their control. Officers fell asleep and all they did was open door and left. They seriously damaged a number of yachts by colliding Held: officers had assumed a degree of control over the boys and had been negligent. Class of persons who would be closely and directly affected (dvs)= property owners within the vicinity.

Mitchell v Glasgow City Council [2009] One of the functions of D(council) was to house people. Mr drummond was a tenant of theirs, drummond attacked neighbour several times.This was reported to D(council). Council told drummond he was getting kicked out. Drummond murders neighbour.

Were glasglow in a duty to control drummond? rship with drummond in that they had some control, but only as a landlord so no. In the alternative: given that the council knew of all the circumstances and had kept him up to date so far, they had brought themselves into a duty and they should have kept him upto date. Held: no.

In all these cases, its about failure to exercise control. In all these cases, were able to work with dvs in terms of duty and foresight. Usually we can do that for personal injury and property, however with property its possible to argue indeterminacy of liability. So in yacht case, were lucky as it was quite close by. if it took a year and a day and was far away, proximity is an issue.

ii. a duty of care does not arise where important policy considerations militate against imposing liability on D; Harm to plaintiff is at least arguably reasonably foreseeable. However, there are policy reasons why they wont create a duty. (Social resources and gov budgets) Skuse v The Commonwealth (1985) Cant win if they think youre asking for better allocation of gov resources, even if doc owed. P = barrister, he stood up to present his case, rifle was shot, he was seriously injured. He was suing the gov in negligence because of the lack of security at the time in the court house. He lost his action, held that the gov owed him no duty of care to protect him from that harm because it was found that what he was asking for was better allocation of resources in terms of security, implication that all courts had to have better security. Gentlemen who shot him was a gentlemen with a fiece temper who had been in dispute with landlord and was then annoyed/threatening his solicitors. His daughter called and said shooter was going to go and shoot someone but nothing further was done. Lecturer:On those points, my own feeling is that he would have had a case on that, there was an occasion to do something more that day, it would not necessarily have necessitated more security at all courthouses. Hill v Chief Constable of Yorkshire [1987] Cant ask for more resources, even if doc owed. In Yorkshire, in the 1980s, there had occurred a series of brutal murders, Caroline Hill ended up being murdered also. Similar to Jack the Ripper, victims were all young women, residents of Yorkshire. All brutally stabbed and mutilated, during late hours of evening. Letters were coming in to the police and press from killer, taunting police about their inability to locate him and promising next crime. Yorkshire set up a special police force, Caroline Hill sued gov in negligence, analogously with Skuse case, held that they owed no duty of care to safeguard her against the murderer. Principle reason, she was contending that they police should have allocated greater resources to the investigation(rejected for policy reasons) not and protect her as a member of an indeterminate class( rejected cause indeterminate. Duty of care: they had got him shortlisted, they knew where he operated, and it wasnt just anyone in the world, it was Yorkshire and it was near her home. Police were being hoaxed off the trail, trying to determine which were real and which were fake. Audio tape, ostensibly sent by ripper, at the time they were investigating suttcliffe and others, the accent didnt sound like Sutcliffe, so they focussed attention on other ppl in their shortlist.

9. breach of duty / standard of care: if you have doc, you have to take reasonable care to avoid/reduce risk to P. Appeal on a point of fact here should seldom be accepted because the new court is in no better place to decide. In a hard case it is the breach issue which renders outcomes particularly diff to predict. i.reasonable care a q of fact(therefore a finding DOESNT create a PRECEDENT) Sguide: breach= failure to meet the standard of care that would have been shown by a reasonable person in avoiding or reducing a risk of injury to P. Approach to this: Wyong. Whether reasonable man in Ds position would have foreseen that his conduct involved a risk of injury to P or to or to class of persons including P. In all the circumstances, have they done all a reasonable person would do to avoid or reduce the risk of injury to P. In ds position: Experts will give opinions eg how heart surgery should be properly done and why it wasnt done properly in the case. Often case will turn on the expert testimony. Reasonable man= man on bondi tram and what would he do about the risks. Standard of care is about risk management. Nobody can guarantee protection of others, but courts impose standard of average person. ii. s 48 Wrongs Act 1958 (a)probability of harm occurring (b)likely seriousness of injury (c)burden of taking precautions (d)value of the activity itself to the community

iii. examples: Balance out matters + just cause something is unlikely doesnt mean its not foreseeable: Wyong Shire Council v Shirt (1980) First:Reasonably foreseeable risk, whether reasonable person in Ds position would have forseen that his conduct involved a risk of injury to P or class of persons including P (BUT DNT WE ALREADY DO THIS IN DOC) Risk of injury which is remote (extremely unlikely to occur) may nevertheless constitute a foreseeable risk. a risk which is not far-fetched or fanciable is real and therefore foreseeable. D ought to have known about a risk if it was not far fetched or fanciful If yes, then what would a reasonable man do by way of response to risk: It is only when these matters are balanced out that the tribunal of fact can decide what standard of response is:

the magnitude of the risk the degree of the probability of its occurrence expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the D may have Objective approach, standard of a reasonable person: Vaughan v Menlove (1837) Test of foreseeability of risk should be applied to the general nature of the risk rather than to the exact circumstances in which injury was sustained:Doubleday v Kelly[2005]: Foreseeable risk: if D is unaware of the risk, issue is whether reasonable person in Ds position would have foreseen the risk. It is not necessary for the exact sequence of events that led to Ps injuries to be be reasonable foreseeable, it is sufficient if the general risk of injury was reasonably foreseeable. Kelly was a seven year old girl staying overnight at friends house, they woke up before everyone else and went on trampoline, got injured.

If risk is obvious and P is aware and failed to exercise ordinary care for own safety, no breach: Romeo v Conservation Commission of the Northern Territory (1998) There is no obligation to ensure safety if P ignores an OBVIOUS danger. D not in breach: if p was aware of danger presented by cliff and failed to exercise ordinary for own safety. Reasonable steps did not extend to fencing off entire cliff edge(2km), sign might serve as a warning to someone unfamiliar with the are but would serve no purpose for those who were familiar with it (P).

Nagle(1993): take into account , the possibility that some ppl to whom duty is owed might fail to take proper care for their own safety If P knows D is limited in their ability to exercise the SOC of a reasonable person can result in a lowered SOC being imposed: Cook v Cook(1986) Appropriate to modify the SOC to that which could reasonably expected of person in D's position considering P knew that D had limited skills yet voluntarily undertook to supervise D while she drove. invited D to drive motor vehicle knowing that D had never had a license or learners, P sudderred serious injuries when D purposely accelerated in an attempt to avoid crashing.

1.PROBABILITY OF RISK Risk of harm plainly foreseeable but too small to warrant a change: Bolton v Stone [1951] HOWEVER, it was said that he would have reached a different conclusion if he had considered the risk as anything other than extremely small. D did not breach doc due to the very low probability that a cricket ball would be hit over the protective fence and hit a person outside.

Reasonable person would have taken precautions:

One cannot be expected to take any measures if its a risk not generally known of: If you discover the risk and what you could have done to prevent it AFTER injury- not relevant: Roe v Minister of Health [1954]:knowledge about risk of injury and the precautions that could have been taken against the risk discovered after the injury is not relevant to determining whether there has been a breach, risk but be appreciated or how can one address it? Facts: prob=hairline cracks in vial (could have guarded against the risk by colouring it: then even visual viewing would tell you the problem, normal practice was visual inspection). Use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances:Maloney v Commissioner for Railways (1978) That matter must be judged in prospect and not in retrospect:

2.PRACTICABILITY/BURDEN No breach if risk=low and measures to address risk=impractical: WyngrovesCur.Bonis v Scottish Omnibuses [1966] Facts: reached for horizontal bar at rear of bus and swung out on to road. his death would have been prevented had their been a vertical bar in the opening itself, the bus door could have been closed but theyre in a city with frequent stops, the practice was to leave it open, there was a vertical handle available on the door and a horizontal bar on other side, distance b/w these =3 and a half fee. Thered been no previous accidents with it. It was not practical to have the door closed all the time and not practical to put vertical bar in middle of doorway. Sguide: will not be found to have breached their doc unless it can be shown that reasonable person in the position of d would have taken specific precautions against the risk the risk that caused p's injuries. Only reasonable precautions need to be taken by d, unlikely that there will be a breach of care if the only possible precautions that could have been taken against the risk would have involved excessive cost or inconvenience Caledonian Collieries Ltd v Speirs (1957):d did breach doc as installing catch points on railway which would have derailed the railway truck and prevented the accident. this would not have been an impractical precaution as they wouldnt have cost a signficant amount, wouldnt have caused much interference with the railway line, could have been quickly installed.

Romeo: An important factor in determining whether doc breached, is to look at whether theyll be required to take precautions under similar risks of harm, this was considered in romeo case. Key reason hcourt held d hadnt been negligent= commission would have had to erect fences and signs at all areas containing shifts under her control.

Court will take into account resources available to D to deal with risk:Paris v Stepney BC [1951] Measures necessary to deal with the risk= public body who was well resourced, well within their means to provide safety goggles.

3.GRAVITY/SERIOUSNESS Court will take into account gravity/seriousness of injury and resources available to D to deal with risk:Paris v Stepney BC [1951] DOC: yes, employer/employee, should provide safe place to work. Breach of duty:sliver of metal struck him in the eye while he was hammering metal, he was already blind in one eye, it blinded his other eye, completely blind now. SERIOUSNESS: gravity of injury that might be inflicted is relevant. D might be owed higher standard of care to Paris as D knew that this risk had more serious consequences for him cause he'd go completely blind whereas if it was someone else, theyd only lose sight in one eye. Reasonable foreseeability: (we have to guess from common experience), we have been beneath vehicles, we know that if you are under car and something falls itll hit you in eye depending on the magnitude of the danger, the standard of reasonable care may involve 'a degree of diligence so stringrnt as to practically to a guarantee of safety:Burnie Port Authority v General Jones Ltd (1994)

Significance of danger, esp cause thered been past accidents:General Cleaning Contractors v Christmas [1953] DOC: employee/employer Breach of duty: given the significant danger to the employees it was incumbent to find a better method. there had been a lot of previous accidents so risk looks significant. Measures=something should have been done eg safety harnesses. Facts: Often ppl had slipped and been injured mainly cause these windows will slip. Top half of window fell, pushed his fingers off and he fell to his death.

SOCIAL UTILITY D less likely to have breached doc if their activities providesignificantbenefit to members of community as this sometimes outweighs the harm caused to individual plaintiffs: E v Australian Red Cross (1991) P got AIDS virus from blood. There's a test that could id the virus. D did not breach duty, social utility was a key factor. adopting the test would have reduced amount of blood produced by D by 5%. this could have serious negative effects on a significant number of people in the community. inappropriate to find D was in breach as this would have produced serious adverse consequences for the community.

Court must take account of all the circumstances which present themselves including social utility of activity: Watt v Hertfordshire C.C.[1954] They were entitled to take that risk, even though it was foreseeable and probability of risk was significant. Facts: Firecrew to save womans life. the vehicle they had didnt have anything designed to carry rollerjack, they knew if they stored it in there, it would roll around and it would be dangerous. men in back lost control of rollerjack and broke his ankle.

Unsure what this is: Woods v Multisport Holdings Ltd (2002) D were parents, bought son a powerful air rifle with ammunition, they knew he kept the gun loaded in the cupboard, they knew their friends went up there and sometimes played with it. friend aimed it at his face, didnt know it was loaded and friend lost eye. Parentsgot sued. Note: if child sued: itd be about reasonable standard of care at child age.

Standard of care lowered when D is a child: take into account that children typically have a reduced ability to understand risks of harm associated with various acts due to their limited experience and understanding, objective standard at lowered age: McHale v Watson (1966) SOC not modified for those who are mentally ill: Adamson v Motor Vehicle Insurance Trust (1957) Medical professionals liable for failure to properly warn her of risks involved with the operation:Rogers v Whitaker (1992):doctor has duty to warn a patient of a material risk inherent in the proposed treatment. risk= material if, in the circumstances, a reasonable person in the patients position, if warned of the risk, would be likely to attach significance to it or if the dr should reasonably be aware that if warned of the risk, they would be likely to attach significance to it. she was already almost blind in right eye. After op, got sympathetic opthalmia, blind in left eye, right eye not improved. She incessantly questioned him about possible complications. Keenly interested in outcome uncluding danger of accidental damage to her good eye. In the end: body of opinion in med profession said she should only get info about the to her inquiry if she had specifically directed to the possibility of left eye being altered by operation on right eye. Trial judge: if she had expressed no desire for info, proper med practice did not require warning of the risk of the sympopthalmia. Warning was necessary in the light of her desire for relevant info. Appeal upheld so trial judge statements stand? Consent to treatment may be valid once informed in broad terms of the nature of the procedure which is intended: Chatterson v Gerson [1981] BUT the choice is in reality meaningless unless it is made on the basis of relevant info and advice (Rogers).

expert medical advice is relevant to findings as to the risk that reside in or are a result of reccommended surgery or other treatment, it will also haev a bearing on their materiality BUT this is not a question that is to be concluded on the basis of expert medical evidence alone: Reibl v Hughes [1980]. Ultimate question is not whether D's conduct accords with practices of his profession but whether it conforms to standard of reasonable care demanded by the law. the amount of info which a careful/responsible dr would disclose depended on: the nature of the matter, nature of the treatment, the desire of the patient for infor, the temperament and health of patient and general surrounding circumstances. F v R (1983)

8. duty for causing mental harm:

i.what is nervous shock? mental harm as damage modern case law the term is psychological injury circumstance in negligence will recognise DOC owed when what they have suffered in terms of harm includes a psychological injury or consists only of a psychological injury. BourhillvYoung [1943] ii. policy factors: a)proof/evidence b)medical knowledge of psychological injuries comparatively was signficiantly limited. - the evidence available for reconised psychological injuries was not available. Neither was the cause of psychological injuries - could not distinguish between genuine claim and other fake claims. as medical knowledge has progresses the attitdues of the courts have fallen behind. Early policy concerns in the light of medical testimony receded to insignificance c)the range of liability - perceived range of liability in relation to psychological injury. - A single incident is capable of resulting in multiple claims - where can the line be drawn in liability - Is the law entering into uncontrollable indetermeinancy. . Move from outright denial to steady expansion of duties. iii. early decisions: Wilkinson v Downton[1897] FACTS - lady P was informed to come at once because her husband had been smashed in an accident, practical joke on behalf of the speaker, woman suffered serious shock result which she was phsycially sick. Sued the messenger - court found the messenger was liable and awarded damages against him to the woman, he had inflicted harm on her through her shock. Issue - the key to the early decision was the intention of the speaker the shock was inflicted deliberately.

Coultas v Victorian Railway Commrs [1888] As James was about to cross, he noticed from the side, a fast approaching railway train. James ran across to avoid it, train came really close to hitting Coultas. She said she went into shock and sued railway for negligence. Railway argued they only caused shock and no physical injury. No damages awarded. Distinction bw these two cases= intent. They were willing to award damages for an intentional act but not for negligence (second case). The policy factors which we find enunciated in early cases are above. The first two are related, in earlier times, med knowledge about psychological injuries was extremely limited. They thought it was too easily to fabricate a permanent psychological injury, could just be fake or transient claims. As medical knowledge has progressed, attitude of courts has fallen behind. Where the line can draw the line, is it going into indeterminacy: A single incident is capable of resulting in a multitude of claims. We move from a situation from an outright denial of any duty at all to a steady expansion.

iv. plaintiff as primary victim Dulieu v White & Sons [1901] P= pregnant at the time and her job was serving, D= left delivery vehicle nearby, horse ran through the wall of the restaurant and its head appeared through the wall, she suffered some serious shock which made her ill. The court awarded her damages finding the ds liable. This altered coultas. In the judgmeents the court held DOC arose to the P because she was subject to reasonable fear for her physical safety. Once she was put in physical jeapordy it was a matter of chance whetehr she was going to suffer physical or psychological injury.

v. plaintiff as secondary victim: duty requires (a)proximity of relationship: children: Hambrook v Stokes Bros [1925] FACTS Mrs H was in the habit of escorting her young children to school each morning, its a very steep and winding road. Shed walk with them half the way up the hill and return to her house. As she turned to come back down the hill, she heard a commotion and saw a driverless runaway truck hurtling down the hill. It ran into the house further up and stopped, it didnt harm her but she realised her children had been put in danger, she made her way up the hill and there was a small gathering of randoms, she heard the truck had struck a small girl, from the description she feared it was her daughter. She went to the hospital and found daughter had been struck by the vehicle, the trauma of the incident caused complications with her pregnancy-foetus died-surgery performed to take out baby failed and she died too. Actin for damages successful .doc owed by ds for shock inflicted injury. ISSUE: In the view of the court if it was foreseeable that a person could personally suffer such injury it was equally foreseeable that a mother whose children was put in jeapordy would suffer such injury therefore the duty of care was extended MOVE to Acceptance of the duty to the secondary accident victim.

Doc owed for the shock inflicting injury. In the view of the court, if it was foreseeable that if a person hit could be hit, its also foreseeable that she be injured. Boardman v Sanderson [1964]

These days courts say Foresight in terms of a knowledge of close and loving ties between primary and secondary accident victim. Initially on the case law this was confined to mothers. As we come forward in boardman and sanderson extended to fathers.

Courts often talk about foresight as close and loving ties bw prim and secondary victim. Initially on the case law thats confined to mothers, however in this case it extends itself to fathers. The father had taken his young child to collect his car from being serviced. Ds carelessly backed vehicle over the small boy, father standing near by heard the commotion and shouts and witnessed his young injured son. He developed psychological injury as a result of the experience. D was liable if it was foreseeable that if it attracted duty towards mother, it attracted a duty towards father . Hinz v Berry [1970] It was bluebell time, P was a lady, she and her husband were experienced foster carers, they were fostering some 6 young kids. They had a campervan because they used to in summer take them out on weekend picnics, on the occasion on question, they were all picnicking, they parked on a bay on side of busy road, father was unpacking picnic stuff from vehicle. P had gone across road with one of the girls,

they were harvesting bluebells. P heard tremendous crash and viewed carnage from across the street, a car had ran into Ps family: she saw them on the road variously injured and dying. Again, the court found that the negligent motorist owed doc of course to those he physically injured and also to secondary victim (wife), she ought to have been foreseeable.

spouses: McLoughlan v OBrien [1982] What we are seeing is that there is a kinship rshipbw sec and primary victim, we begin to see that as a requirement of duty but secondly were seeing that the courts are developing other categories, in this case: Ps husband together with friends and children was off on a motor trip on their own, P was at home. There was a terrible road accident involving one of their vehicles, one of the children was killed, husband etc seriously injured. Friend who was with them wasnt involved in the crash, drove back to the house to inform her and take her to hospital, approx. 2 hours elapsed bw the collision and her arrival at the hospital. She was not at accidents scene, she was at hospital but still saw them at an early stage of injurues; covered in oil, blood etc. YES she was owed DOC, her rship with children and husband brought her into reasonable foresight, she hadnt viewed scene but viewing immediate aftermath of scene was sufficient. JaenshvCoffey (1984) P= married to motorcyclist, again he was in hospital soon afterwards, aftermath was more protracted here cause D was required to come over weeks, they didnt think husband would make it to the next day. She developed acute depression, she came into range of foresight primarily cause of her rship with husband, workmatess Dooley v Camel Llaird[1953] Mt Isa Mines v Pusey (1971) Recognised a rship of workmates as qualifying for a doc. Mr pusey was working at ds office building, on level above, two electricians-workmates-were wiring a circuit, there was something seriously amiss which was not their doing- it was due to negligence of D. The coworkers were electrocuted, one died immediately, other was critical, In the commotion P went up to supervise taking dying one to ambulance. He also came into another category: ubiquitous rescuer: - a workmate can claim - It was foreseeable that workmate would suffer shock related injury, a second reason that duty was owed

rescuers: Chadwick v British Transport Commission [1967] chadwick v british transport commission: there was a terrible train crash due to negligence, in early hours of morning, two trains approaching from opposite ends were found on same track, result= human carnage. Track ran parallel to residential houses and during the night, before rescue services to get there, residents went out to do what they could, mrchadwick found himself try to clear wreckages and to try to get bodies and ppl out. One time he was very affected simply by sitting with a v young boy who had died, effect on him was profound, he was previously successful businessman, developed acute depression couldnt work etc. he was deemed to be foreseeable as a rescuer in the same was as the physically injured rescuer is deemed to be foreseeable. (b)proximity to shocking event:is another issue that is relevant Benson v Lee (1972) Child was killed, sibling went to find mother to tell her, yes doc, she was physically proximite and rship was sufficient (c)personal perception of event: Alcock v Chief Constable S. Yorkshire [1991] Gov was represented by the constable the events in question concerned the semi final of the English football assoc cup, it was a semi final, held on mutual ground. This stadium held 60000 ppl via standing room, by and large they stood on the terraces, tiered but with stone steps and an iron stanchen here and there that ppl would lean against, they were close together and standing downwards, it was separated

from the grounds by cyclone fences. it was also separated into sections, to separate rival fans physically so more cychole fences. Each pen had a gate and they entered through that gate, control of the gate was in hands of D. match was sold out but everyone knew theyd have many supporters whod turn up without a ticket and seek in any way possible to get in. scalpers sell them too. But theyd take advantage of any way of entering. Match broadcast on tv and radio etc. one of the gates had been unattended, could simply be unlatched, many ppl came in, fans closer to the bottom were pushed forward and pushed over, those close to the front fence=covered in bodies. 200 ppl died through crushing and srs injury of many others. In relation to those d admitted doc and breach on basis of dvs. Others viewed carnage and aftermath, police and rescuers arrived, bodies had to be carried backwards and forwards, temporary morgues had to be made in stadium. Others were watching tv and saw incident, others heard via radio forecast others heard in other ways, all of these claims were for consequent psychological injuries as a result of the experience but they were brought by secondary victims, they werent directly injured, there were 14 test claims brought by persons variously related to those killed or injured. Were they owed doc? Broadly speaking close relatives who were present at the stadium and witnessed=owed doc, included parents, spouses, children, this is consistent with case law weve seen previously. House of lords would have extended to someone who was engaged for four years. Because of the rship all those ps=foreseeable and owed doc. However, house of lords restricted duty to those persons physically proximite, at the stadium at the time due to the issue of indeterminancy. Even close relatives who viewed via tv (cut off after 3 mins), or heard over radio or those iding bodies of close relatives were DENIED duty of care because they were lacking the relevant physical proximity to qualify. White v Chief Constable S Yorkshire [1999] A number of police officers who were suffering PTSD sued over the above events, outcome was those who were present at time and saw carnage=owed doc. They were held to come within rescuer category, others like sergeant smith=not owed doc. She was called onto duty some 8 hours later. Had to deal with unrecognisable bodies to try to id them in lisaon with waiting relatives, she was unrelated to the primary victims PLUS she was not regarded as sufficiently proximite to the horrifying events. vi. special undertaking of responsibility: Annetts v Australian Stations Pty Ltd (2002) IN sguide already. 16 year old son who wanted to work, comp gave specific guarantee that he would never be exposed to great danger and would always be supervised by experienced workers. Turns out he was sent to remote post to work alone, comp informed Mr A by phone, he collapsed, within a year somebody had discovered his hat in desert, months later his remains were found, remains identified. He died of dehydration, mr and mrsA developed psychological injury, sued the defendants. They were foreseeable in as much as they were parents of the boy, what was different=PROXIMITY= this would ordinarily take them out of the scope of duty, yet d was liable, this was on the basis of the personal dealings bw D and annets, specific assurance given and broken and their concern for safety of son which was expressed vii. employer owes duty to children of employee: Gifford v Strang Patrick Stevedoring (2003) Mr gifford had been employed, at work one day, coworked backed his truck at speed without looking, he ran Gifford down and killed him instantly, automatically liable to estate. He was married to mrs Gifford, family home=few miles way. Somebody from docks sent to tell mrs Gifford, that happened within a couple of hours, she claimed she developed depression after hearing of his death they had three children, 17,19,14/family friends told kids, they also claimed depression. DOC for psychological harm owed? Although married, mrs g was estranged from mr g for 7 years and was in another comm law marriage however she said they were still on loving terms, she said she saw him most days, primarily he was there to be with kids. In alcock for example, theres evidence that theyll focus on the reality of the rship rather than formal status (obiter). She was not proximite, delivery of news=inevitable, it was found that she was not suffering from psychological injury, rather she was in a state of grief. 3claims by kids: On psychological injury it was not determined that they had it as opposed to grief, on duty they satisfy foresight in temrs of their rship with their father, on the earlier case law they dont satisfy duty in terms of proximity: werent there didnt see corpse. However, held that duty was owed to each of those three. The judgements of the court differ the consensus is expressed by hayne: employer had duty to take care to prevent psych injury to employees children. A reasonable employer in reason

of strang ought to have in mind that any harm caused to strang would cause psychological harm to kids when informed. Case law requires close and loving rship and proximity, does it extend to a stranger? Gifford suggests it could depending on the situation etc.

Scrays case: children took themselves to bus stop each morning and took themselves to school, this morning they were boarding the bus, road was busy, there were two buses parked on either side of the road, 70 children boarding each bus. Bus driver knew the scrays and knew they lived near by- 2 blocks away. The 8 yr old kid didnt have bus pass, she asked should I get it? Henry replied yes be quick. Later, sister asked should I go get her? Henry said yes hurry up. She ran around to front of bus and across road: hit by car, horrific injuries. When parents arrived, daughter=alive but unconscious, she was dead on arrival at hospital. Bus driver and motorist and daughters school were all sued. Parents both developed debilitating psychological illnesses as a result of what theyd seen. Doc owed by all Ds to all 3. Were they in breach of their doc. Court found all three were in breach in effect same breach to parents and the daughter. In henrys casse knowing rd was dangerous, assuming responsibility for young children: he should have urged caution and atleast checked his mirror for oncoming vehicles. Motorist could clearly see it was a school bus and saw another school bus oon other side with kids boarding, physical evidence=he braked after striking Karen, found to be driving negligently. In relation to the school: on the evidence the judge found that the bus company in connection witbht the school, owed a doc for the physical safgety of young pupils. Bus company had a policy of refusing travel to children who couldnt produce bass pass=even if they knew kid hadbus pass. Witnesses were called who said children have been placed in danger as a result of this policy, the policy=negligent, grossly unreasonably and subjected children to unnecessary physical risk. 3 categories:

viii. Wrongs Act 1958 s.74 consequential mental harm; flows from injury duty is not owed to a susceptible plaintiff: unless defendant ought to know of the susceptibility claiming for psychological injury as a primary victim, there is one plaintiff. Normal situation is that P has been physically injured by D, physical injury is clearly compensable, however FOLLOWING from the physical injury, theyve developed a recognised psychological injury. Foscorous case: court found negligence when he was paralysed from waist down in wrestling thing while supervised by coach, he was also diagnosed with acute serious Summaries:get actuals ections s.72 pure mental harm; stands alone duty is not owed to susceptible plaintiff: unless defendant ought to know of the susceptibility that a person of normal fortitude might suffer a recognised psychiatric illness. Unless they should have known the person was of less than normal fortitude. like mrscoultis, she is the primary victim, only one that is suing, HOWEVER she didnt suffer bodily injury as a result of the negligence, she had a near miss, we dont know if what mrscoultis developed would be considered today a recognised psychological harm, lets say she was, then what she has is referred to as pure mental harm under statute, doesnt attach to any physical harm, more problematic than first category, but in most cases, theyll still be owed a duty of care because on current standards and knowledge it is foreseeable s.73 P as secondary victim; for pure mental harm, duty is not owed unless:

plaintiff witnesses at the scene someone killed, injured, or put in danger OR plaintiff is in a close relationship with primary victim doesnt define close rship so court can decide, in Gifford theres dicta: ppl who live together for several years can be close loving rship. not claiming as primary victim but as the secondary accident victim, theyre almost always a person who is physically injured or killed by negligence of D, that person will be owed a doc on dvs but now we have another claimant and possibly a string of claimants. This person suffers pure mental harm not as a result of what was done to themselves but as a result of what was done to the primary victim. The prototype case was the mother who suffers the psychological injury through what she experiences through the negligent killing of her child. We have the policy issue concerning indeterminate liability. At some point theres a denial of doc to certain others who are affected.

Unborn children: If you sustain an injury in the womb and are then born alive, you can sue person whose negligence caused injury: Watt v Rama[1972] Car accident: Rama collided with Watts mother who was pregnant. Watts mother becomes quadriplegic, baby suffers brain damage and epilepsy. Watt sustained injuries from motor vehicle collision and/or through Watts mothers inability to carry and deliver her in the normal manner. It might reasonably have been foreseen that the pregnant woman might be injured by his carelessness. It must follow that the possibility of injury on birth to the child she was carrying must equally be taken to have been reasonably foreseeable. Those circumstances, constituted a potential relationship capable of imposing a duty on D in relation to the child if and when born. Relationship crystalized on birth. Child could not acquire rights correlative to duty until it became by birth, a living person and as it was not until then that it could sustain injuries as a living person, it was a that stage that duty established and breached. Cant sue D on the grounds that the only reason that theyre alive is due to the negligence of the defendant:Harriton v Stephens (2006) Harriton went to see her gpstevens, she explained that shed been recently very sick and she believed that she was pregnant, she also felt that she had german measles and she learned that shed been close to some people who had german measles, she was well aware of the implications of the foetus if she was correct. She told him that if she was right, she wanted him to arrange for an abortion. Stephens ordered tests and sent stuff to labs, on the basis of the tests he advised her that she was pregnant but she was clear of the measles, so she didnt terminate pregnancy. Baby was then born with severe mental and physical defects, which meant that she MUST have had measles. THE CHILD sued the doctor. No argument of duty of care and negligence. Complications: In watt and rama, the driver clearly CAUSE D the injury But the doctor didnt CAUSE the downs syndrome

Courts said; only alternatives were that alexa would not be here. Public policy requires that we cannot endorse this as damage deserving of compensation, how can we compare non existence with existence and say that the non existence is worst. HIGH COURT DENIED CLAIM. Wrongful life does not constitute damage. It is possible for the parents of child born in such circumstances to successfully sue a negligent defendant:Veivers v Connolly [1995], Cattanch v MELCHOIR (2003)

Where negligence by a med practitioner is the cause of the birth of child, liability in damages may include cost of raising and maintaining child til 18;Cattanach v Melchoir (2003): Dr negligent of failing to inform D of various matters: didnt tell her her history hadnt been confirmed, didnt tell her there was tenfold increase in risk of getting pregnant after the sterilisation if it were there, didnt tell her there was an available procedure which would disclose presence of fall tube.

in law of negligence, damage= either physical injury to the person or prop or the sufferring of a loss measurable in money terms or the incurring of expenditure as a result of the invasion of an interest recognised by the law. the parent child rship is not the damage, it is the expenditure that they will incur in the future/have incurred. benefits: the benefits received from birth of a child are not legally relevant to the head of damage that compensates for the cost of maintaining the child. a different case would be presented if the mother claimed damages for loss of enjoyment of life. but here, the head of damages thats relevant is the financial damages the parents will suffer. the benefits to be enjoyed from having a child arent related to this. sum of money to be paid to the plaintiff is that sum which will put p so far as possible in the same position he would have been in if he hadnt sustained the wrong: Livingstone v Rawyards Coal Co (1880) ought d have reasonably foreseen that an expense of this kind might be incurred healthy v unhealthy children: to prevent recovery in respect of one class of child but not the other, by reference to a criterion of health would be to discriminate

11. causation: Elements of causation:

As long as there is a material cause for the Ds conduct there is no issue. Causal link between negligence and injury P provides onus on evidence for est. causal link i.plaintiff must prove that defendant caused the damage: on a balance of probabilities The standard of proof is on the balance of probabilities encumbant on the P to prove on the balance of probabilities that the D conduct caused harm more likely than not that it was the Ds conduct which caused the damage the P is complaining about. Common in medical practice where there is more than one cause of the Ps injury. P has to isolate one probable cause that is the Ds negligence.

the but for approach: The standard approach to causation is the BUT FOR test. One asks that is it true that BUT FOR the Ds conduct the P would not have suffered the injury. If the injury would not have occurred BUT FOR the negligence the causal link is established and negligence is made out. Barnett v Chelsea & Kensington Hospital [1969] FACTS Barnett night watchmen and turned up at the hospital with symtoms of severe vomiting, stomach ache, seen by a doctor who made a cursory diagnosis, he was told to go home, take an asprin, rest, he did and was dead Examination was inadequate and the hospital admitted negligence Post martum procedure was arcegenic rat poisoning. The state of poisoning was so advance at the time mr. Barnett presented himself that likely no medical attention capable of saving him ISSUE WOULD mr. Barnett dead occur anyway yes. Therefore causal link is lacking and despite the negligence Mr. Barnetts negligent action failed completely Recent decisions show the highger court has a strict application of the BUT for test on causation. Hotson v E.Berkshire AHA [1987] FACTS o Young boy climbed a tree, taken to hospital the staff did not promptly diagnose the issue, the blood supply was cut off and took them 5 days to discover, boy left in permanent disability in his hip because of the failed bloos supply o Hospital admitted negligence and liability apart from the permanent disability to the boys hip because they led evidence that in these circumstances there is a 5-1 chance that despite all treatment that disability would occur Issue

Negligence as a cause had a 1 in 6 possibility this does not discharge the onus of proof and the boys claim for hip disability was rejected.

Wilshire v Essex AHA [1988] FACTS Staff administered overdose of oxygen to premature baby and the plaintiff was blind The chances on the evidence on the overdose of oxygen cuasing blindness was put as 1 in 4 to 1in 6 this was not sufficient to est. the causal link. Kay v Ayrshire & Aran Health Board [1987] FACTS - Boy was administerd to hospital on meningitis in error delivered massive dose of penicillin he was left dead Court found that meningitis even with all treatment can cause death. No evidence linking overdose of penicillin with death causal link is absent and the action fails. Dobson v N.Tyneside H.A. [1997] FACTS - Woman collapsed and taken to hospital A, they took her and discharged her - Two weeks later collapsed took to a diff. hospital. Hospital B took test and found brain tumour. Prepared for surgery immediately and diead on the way in - Estate commenced action of negligence against hospital A - Tumour could be operable in which case prompt detection would have saved her or it could be the one which was not. They needed to est. the first tumour. Solicitors sought possession of the brain which had been destroyed. Without that evidence they did not proceed because the best they would have mathematically is 50 50 probability. Amaca Pty Ltd v Ellis (2010) Trial judge found mr. cotton negligently exposed to aspestos in work environment. But also was a chain smoker for 20 years. Causes were competing. Had to establish a cause. He led evidence of research. When 2 sample groups are compared smokers subject to asbestos the smokers in sample B was higher than in sample A this was an idnivation that employer had put mr. cotton at a higher risk than non smokers, however in saying that did not say that asbestos probably caused the cancer and therefore the action failed. ii. consecutive causes: (held for consecutive causes separetly) If you get 2 or even more parties who have caused distictt damage D is liable for the more precise damage D causes Performance Cars Ltd. v Abraham [1961] FACTS - Someone had damaged the front of the Ps rolls Royce and needed respray. - The D ran into the back of the Ps rolls Royce - P sued for repairs to the body and a total respray. - The second claim was rejected the D had not cuased a situation which was necessary to incur a respray the vehicle already was in a condition which necessitated a respray

iii. concurrent causes:

Material cause for the self same damage.Cannot as with consecutive causes separate the damage. If D provides a substantial cause D is wholly liable examples: a)2 fires merge and destroy Ps building; b) 2 ships at anchor collide with and sink Ps vessel assume both collision capable of sinking the Ps on their own If we apply BUT FOR test logically it would deny the plaintiff altogether. As a matter of policy not feasible. The courts will not apply the BUT FOR test. Different legal rules apply. i.e. 2 Ds have caused the same damage they are joint and several tortfeasors. They are held jointly and severely liable. Eiether or both fully liable and finally the P can elect to sue one of them for full damages. P is not disadvantaged. If one tort feaser wishes to claim contribution for damages from another tort feaser yes in a separate action this can be done.

Hale v Hampshire & Dorset Motor Services [1947] Bus driver driving negligently crashed into branch of tree - Held busdriver was negligent also the local authority who shouldve known about safety authority was negligent - Joint tort visa - P can choose to sue the one or the other for full damages The cause is material or operative The Ds conduct can trigger a sequence of events iv.operative cause and novusactusinterveniens: dicta of L.Wright in The Oropesa[1943] Oropesa D;s negligently sunk opopesea ship Ds argued whilst they were responsible for initial harm not respoinsible for deaths it was a novus because the ship master put them to see ship master had no choice continued to be liable because they were foreseeable events arising from peril created - A foreseeable event cannot break the chain of causation - For an event to do that it must be dramatic and outside the course of events IE.SCOTT V SHEPERD a new cause which disturbs sequence of events: it is itself quite unforeseeable novus New act intervening If the D causes a danger and in the course of events something dramatic and unforeseeable occurs, it may sever the link between the Ds original negligence and subsequent harm. Normally that event is unforeseeable negligence by another person.

Scott v Shepherd [1773] - D LIT a firework and the firework was caught and abandoned sequence of throwing until the P caught it

Onward throwing broke the chain of causation it didnt because its foreseeable people will get rid of a fiework - Not a novus legall d had caused the p harm Haynes v Harwood [1935] Knightley v Johns [1982] Novus actus is a a rare event FACTS - There was a crash that the D caused legally - 2 police arrived on the motorcycle the inspector neglected the standing orders - He arrived in the motor car and said that he had forgooten to close the tunnel ISSUE - The second motorist not negligent police constable had tkane the risk was the first negligent morotirst who was the cause of th first collision to be viewed as the cuase of the second collision - This event went beyond reasonably foreseeable - Police inspectors own negligence and negligect of standing orders severed the chain of causation leaves the police inspector legally responsibe for the injury of the police officer rather than the first motorist 12. remoteness of damage: 1.40 even when D has caused the damage to P, it's possible that all or part of the claim will be abandoned because it is too remote a consequence: leading case: wagon mound.

i.

i. cf Re Polemis[1921],The Wagon Mound [1961]

a. FACTS i. Large amount of oil spilled from vessel into sea, drifted into the harmour and formed an oil slick ii. Assumed negligence on board the wagon mound iii. Could the sparks from the torches set the crude oil on fire advice from 3rd party was that crude oil would not ignite under water iv. Oil erupted Ps premises were destroyed and ships belong ging to other v. Morrts docks sued wagon mound in negligence for cost of damages caused in fire b. Issue i. Ds argued in light of advice the fire damage was not compensable too remote. ii. What would have been expected is the cost of cleaning up the oil but not the fire iii. Privy council agreed with the Ds the Ps actions was lost even though D caused Damage on the ground that the Damage was too remote of a consequence The reasoning is that liability is restricted to damage which falls within a class of consequences which ought to be foreseeable as a result of the negligence.

Lampert v E.N.Omnibus Co.[1954]

ii. examples: Hughes v Lord Advocate [1963]

FACTS The Ds contended the damage was too remote Many possible consequences of booting the lmap into the man hole and the expolision was one of them Argument rejected

ISSUE: The law of remoteness is not requiring actual foresight but notional foresight Foriesnight not necessarily of what occurred but what occurred comes within a general range of possibilities something quite outside anyones potential expectations like in Wagonmound
Bradford v Robinson Rentals Ltd. [1967] iii. the rule in Smith v Leech,Brain& Co. [1962]

FACTS o P carelessly injured in workplace o Workmate splashed molten metal in his face and molten metal struck on Ps lip o Ds admitted Liability for damage of Ps lip o P had died at time of trial burn caused death via cancer susceptible to cancer but didnt know o There was a causal link between burn and death but death rare and unexpected o Ds argued cause of death too remote o The court held the Ds liable for the death Issue The tort visa takes the VICTIM AS THEY ARE FOUND Even though the death was precisely not foreseeable as long as the burn satisfies wagonmound that is where the remoteness enquiry ends. As long as the intial physical injury satisifiesforeight the fact that the severity of the injury is unpredictable is NOT taken into account for REMOTENESS purposes.

Stephenson v Waite, Tileman Ltd. [1973] nz case?: P suffered a small cut at work from negligence, virus got into it. cut was foreseeable consequence of negligence on the basis of wagonmoedund 13. general defences:

1. volenti non fit injuria: actual or implied consent to intentional act or consent to run a risk Generally, in terms of volenti, if you at policy, its usually PRO PLAINTIFF. where on enters a dual with another for example: explicit or because one engages in an activity where risks are inherent: implicit volenti, to be made out requires two matters to be proved: 1. P must have knowledge of the risk in question but that is not sufficient to est defence. 2. it also requires a genuine and free consent to take the risk. leading case: Smith v Baker [1891]:i. sciens ie knowledge of risk alone not enough

Smith v Baker [1891] - FACTS D engaged in quarrying Driver picking up rocks swinging to the area where the men are working. Boulder was dropeed landed on Ps sued the co on negligence theyd been working there for years and knew what was going on: so they were consenting by implication. D contended they were VOLENT to the risk. o Issue House of lords rejected ds argeuemtn est. knowledge of the risk but hadnt established free and genuine consent. There could be other reasons why they felt they had to put up with it. Sciens is a pre-condition to the event but it wont satisfy it alone.

ii. examples: Gilmorev L.C.C. [1938] someone left floor slippery, she fell, she was not volens to that risk

Gilmore slipped and sustained injury in a council fit class Gilmore not volent to the risk Not inherent

Wooldridge v Sumner [1963] photographer, he had elected to position himself really close so he could get a good shot, found to be volens to the risk.

I.C.I.Ltd v Shatwell [1965] once again as we've seen in negligence law. the good rescuer does it through moral obligation not because they consent.

iii. rescuers are not volens

Although the rescure takes risk does so out of moral duty not freely consenting
Haynes v Harwood [1935]

- FACTS o Horses were pelted with stones by urchins foreseeable that if you belt horses with stones they will depart o Posed a danger to other pedestrians o P was a police officer who intervened in his attempt to prevent horses from fleeing and got hurt o Injury not volens and not novusactus
Salmon v Seafarer Restaurants Ltd [1983]

FACTS DS fish and chip shop caught fire employees left can of fat P was a firegighter who arrived to deal with fire While they were fighting the fire the gas exploded and the P was seriously injured o He sued the Ds - ISSUES o The professional rescurer is expected to exercise professional level of care for themselves P had done so o P rescurer is not debarred on the grounds they are volent they are not volent to the intial negligence. o o o

Ogwo v Taylor [1987] D was painting his house, set alight to it with a blow lamp. P was one of the firefighters who arrived, he had to get into the ceiling. he was scalded and seriously injured. he was found to be not volens to the risk which emanated from D's negligence in the first place.

iv. drunken drivers and their passengers Dann v Hamilton [1939]

FACTS P lady who set out excursion group of people, several motor cars stopped along the way public houses, driver drank, eventually late night and no other feasible means of her getting home, driver when he came to drop her off , crashed the vehicle and she was injured Was she volent for the risk - COURT said NO from the outset not aware driver was drinking - Subsequently while she knew he had drank some was not aware that he was unfit - Take account of the circumstances in which the person finds themselves - No other alternative fof her to get back to her home. -

Insurance Cmmr v Joyce [1948]

Facts Joyce was drinking seen to leave the car in kettles car, no one knew who was driving, car crashed into fence, Mr. Joyce unconscious, mr. kettle located asleep in a bush Joyce sued kettle in negligence but no one caouldrememeb who was driving Court held no evidence that the D had casued the injury to his mate The question on the drunkenness didntarise on the decision Obiter if the passenger is fully aware that the driver is unfit usually through alcohol and if that person has an open and free choice of travelling and elects to do it by inference are they volent to the risk of personal injury through incapable driving IN OBITER the HIGH COURT said YES.

Morris v Murray [1990]

2.contributory negligence: defendant is at fault and causes plaintiffs harm but plaintiff is also partly to blame for it Not a defence but a plea a plea for a reduction of damages. P does not consent to the risk of the harm and the D is negligent but the D pleads on the facts that the P did something which contributed to the Ps own ham. - i.e motorist admits he was driving too fast but says the other party wasnt looking when he crossed the road - same damage evidence is both of the parties made a contribution. If the plea is accepted in contrast to volenti the action will not fail. The courts will : 1. find the D liable 2. assess damages 3. asses the Ps share of blame 4. expressed as a mathematical percentage 5. ps damages will be reduced by that sum Any reduction is a possibility for contibutiory negligence.
i.examples: Causation: Froom v Butcher [1975]

- FACTS o P elderly gentlemen never fastened seat belt , was a requirement that all vehicles fitted with seat belts o Ds negligently drove into him and inflicted injuries upon him which included chest injurieis

o Court assesses the damages for ALL the phsycialinjureis but reduced the damage awarded for the chest injureis by 25% for contributory negligence o Whilst the law did not require P to wear a seatbelt evidence was likelihood would reduce chest injurieis o Ordinary prudent driver would wear the seatbelt. Question is not what was the cause of the accident, it is rather what was the cause of the damage.
ii.s25 Wrongs Act 1958 (Vic) award of damages reduced according plaintiffs own share of responsibility eg by 25% iii. all the circumstances to be taken into account Jones v Boyce [1816]

Facts Issue P had acted in the agony of the moment didnt have time to make a considered decision and it was not unreasonable to take the risks in those circumstances wheras normally it would be. P passenger on horse drawn coach Carridge appeared destined to crash P jumped from it in doing so the P broke his leg and he sued the co. Co. contended contributory negligence

iv.children: standard that of average child of that age Children are immune under 6 from contributory negligence older child can be liable for contributory negligence standard of care to that child in question rather than the adult accepted in mchale v watosn.

McHale v Watson (1966) - FACTS o 2 children playing one threw a sharp object hit the tree then the playmate o not an intentiaol act standard of care was that of the average 10 year old at play no liability Obiter courtextrapolated, said same applies with the plea of contributory negligence Standard owed by the child as a plaintiff or in the rare event the child is the D being sued the standard is the same that of the average child of those years.

Broadhurst v Millman[1976] - P was a boy 15 who lived on the road to geelong - late summer evening he was wielding his bicycle in the driveway towards the main road - the neighbour heard a collision - the D motorist travelling in the same direction had struck the bicycle in the rear and the boys body had landed on the road

ISSUE -

Ds case = boy had ridden from the driveway infront of him in darkness Ps case=motirst was driving too fast and failed to see the byclce Little evidence Jury found the cause of the crash the boy had failed to exercise care turning out and the motorist had failed to exercise care looking out The D motorist was liable subject to a 15 year old boys own responsibility The damages were reduced by 70% - rare high reduction.

References to the intelligence, experience and development of the child are to be treated as allusions to notional levels of these factors which a child of that age could be expected to have attained: Kelly v Bega Valley County Council (unreported sep 1982, nsw appeal) Employees McLean v Tedman and Brambles Holdings Limited (1984) Generally, contneg wont be found when Ps failure to take care is more appropriately characterised as mere inattention or inadvertence than negligence. Employee is obliged to take precautions against possibility of inadvertent/inattentive and negligent conduct by their employees. It is accepted that in considering whether there was contneg by an employee in a case where employer has failed to provide a safe system of work, the circumstances and condtions in which he had to do his work must be taken into account. Facts; hes a garbage collector, was working, was behind garbage collection vehicle when he ran out onto the road and got hit. Intoxication in motor accident (prob can extrapolate): Joslyn v Berryman; Wentworth Shire Council v Berryman (2003) Finding of contneg may be made against p if: They sustained their harm from being intoxicated or From placing themselves in the care of another person who they knew or ought to have known was intoxicated. Ought to have known: Relevant facts and circumstances p COULD have discovered include those which a reasonable person could have known by observation, inquiry or otherwise. Outside this category of passengers, courts take into account, the facts and circumstances P could have discovered through exercise of reasonable care. Also legislation.

J&B at party, both consumed alco. J noticed B falling asleep. Insisted she drive. B is aware that J hasnt driven in 3 yrs and lost license. Apportioning responsibility: Podrebersek v Australian Iron and Steel Pty Ltd (1985) Involves a comparison both of culpability, ie of the degree of departure from soc of the reasonable man and of relative importance of the acts of parties in causing the damage. It is the whole conduct of each neg party in relation to the circumstances. Importance of these elements vary depending on the case. Statute s 63 abolishes this: Cant reduce ps damages by 100% on the basis of contneg: Wynbergen v The Hoyts Corporation (1997)

3. act of God damage caused by natural event Nichols v Marsland (1875) where damage is related to natural events, act of god. in unprecedented rains and storm, d's lake overflowed and flooded neigbouring land, d was not negligent for that damage, it was related to an act of god.

Goldman v Hargrave [1967]

Lightning struck large gum tree on Ds land and went on fire D estingushed it and left it smouldering In high wind and high temperature it ignited and the fire spread to neighnbouring land those affected sued Whilst likely is an act of god this damage was due to negligence the D had the opportunity properly to estnigush fire and inlight of known weather conditions had not exercised proper care and therefore was held liable 4. act of stranger unforseeable act of a third party which causes the harm there is an assumption that D has no control over the wrongdoer, Rickards v Lothian [1913]

P;s premises flooded with water emenating from Ds premises above in the same building - Somebody unkwn had got into the building early in the morning - There was securiuty and parts of the building regularly checked but somebody had maliciously plugged wash basins Court found that the cause of ps HARM was unforeseeable act of third party not due to negligence in secuirutyarrangmeents which at any particular time had their limitations Perry v Kendricks Transport [1956] 5. illegality; ex turpicausa non orituractio Ashton v Turner [1980]

- Young men had been drinking and burgaled a premises - Set off alarms seized goods and fled - Driver crashed the vehicle and others were injured the passengers sued The standard of care held by driver held to be that of ordinary competent driver However injuries had been sustained in course of serious criminal activity court could not be seen to make a decision in favour of Ps action was denied on the ground of ILLEGALITY.

Miller v Miller (2009)

The P aged 16 she and sister and cousin took public transport into perth all younger than her and were there till 5:30 am they were drinking along the way and tried to get into nightclubs - Narelle got booted out and separated she went to the railway station to get home but the last train had gone. She realised she didnthave enough money for taxi. Found friends in carpark near nightclub where they got kicked out. By that time another family member had discovered them and joined them he was an adult. The other two girls broke into a car and stole it from the carpark, they then asked the uncle to drive them home and several other people got in narelle got into rear which made a total of 9 in the vehicle - The driver drove at high speed and erraticly. On the evidence narrelle twice vocally objected and asked him to stop and let them out. On the second occasion he started doing it again and he accelerated. - The vehicle hit a pole and flipped over the result one passenger was killed and the others seriously injured Narelle sued the driver in negligence the driver in defence pleaded voleti and in the alternative policy defence illegality. Trial judge rejected volenti HC upheld this decision. The judge found that whilst the driver lacked the licence and was unfit to drive it was unclear whether narelle actually appreciated that and knew of the actual knowledge of the risk Where a person suffers phsycial injury in the course of criminal activity there may be a policy defence of illegality however the HC had distinguished between levels of criminal wrongoing the defence would only apply to serious criminal matter If the P is injured in the course of serious criminal wrongdoing a court cannot be seen to make a decision which condones it. Was narelle at the time she was injured aaprticiapnt of a joint criminal venture of a serious injury? - Theft and taking of a motor car would qualify as a candidate - At the time of her injury narelle was not a free and qilling participant of that event - She dispured that she knew the car was stolen the judge found that even though the court felt she knew the car was stolen since twice she had

demanded to be released from the car and at the time she was injured she was not a participant Defence of illegality was NOT made out and NARELLEs actions succeeded.

Clunis v Campden& Islington AHA [1998] Gray v Thames Trains [2009] mrgray had been a passenger on D's turbotrain (super speed train), at the time of crash (for which d was found to be negligent), mrgs direct physical injuries were minor but psychological harm sufficied. one of his claims was for the consequent loss of earnings, he couldnt work. he was claiming preaccident earnings and post accident earnings, he had ongoing psychiatric treatment. on one occassion, he had to brake sharp to avoid hitting a passenger, he went to girlfriends house went and got carbon knife and went to find pedestrian, mr g stabbed him to death. manslaughter with diminished responsibility. thames contended that they were liable for his loss of earnings ONLY to the point of his imprisonment, his own conduct had broken the chain of causation. court found in favour of d. he could only claim lost earnings up to the time of the conviction. manslaughter was also serious enough to attract the policy consideration of illegality 6. action time-barred: it must be commenced from a period dating from the cause of action: that is WHEN DAMAGE OCCURS. Limitation of Actions Act 1958 (Vic) a)tort in general- 6 yrs; b)personal injury, disease, disorder- 3 yrs; ec) period suspended for legal disability (egcomatosed person, child wo representative) d) discretion to extend where just and equitable (person sufferringaspestosis would not know thatuntil 3 yr period has expired). example: Harriton v Stephens [2005] harritondidnt pursue an action herself because she'd run out of time, had given birth more than three years ago. Mrs Harritons claim for raising Alitia out of time

14. occupiers liability: i.occupier is someone with control Wheat v Lacon & Co [1966] ii.breach is a question of fact Australian Safeway Stores Ltd v Zaluzna (1987) S14 Wrongs act 1958 (Vic) iii.where presence of person is foreseeable duty arises Hackshaw v Shaw (1984) 1.40 iv.children Cooke v Midland Gt W Railwayof Ireland [1909] Glasgow Corporation v Taylor [1922] Phipps v Rochester Corporation [1955] British Railways Board v Herrington [1972] Pannett v McGuiness & Co [1972]

Frequently an occ tries to discharge the duty with a warning rather than a positive action. Yes warning can discharge doc but the courts are really really cautious: v.warning notices (a) were reasonable steps taken to alert P to danger? (b) at the appropriate time (c) having regard to the level of danger (d) did P have a realistic choice in taking the risk? If there is no open choice anyway, no discharge of doc. vi.examples: Burnett v British Waterways Board [1972] Employed by the board on the docks as a lighterman. They had a notice displayed at entrance od docks: lighterman and others are here at own risk, no liability whatever shall not attach to the board for any injury whatever cause Injured while on scaffolding, rope broke. This is utterly hopeless, the employees do not have an open and free risk about whether they turn up to work each day. Even though he worked there everyday and understood the notice. Notice had no effect. White v Blackmore [1972] Ratcliffe v McConnell [1999] Residential student at agricultural college Ds had for many years had prob with swimming pool, students would get in at early hours, sometimes intoxicated and fool around With that knowledge its quite clear they owe doc Q is how do they discharge that duty 2 entrances to pool via changerooms and one gate: all locked when pool out of use Closed during winter, students were aware. Inside the doors, on one side: warning no diving shallow end. on the other side:deep end. They had motion sensors and if activity was detected security men were to go in P and two friends climbed over fence at 2am knowing pool was closed. P dived into shallow end: permanently paralysed No liability University of Woollongong v Mitchell (2003) Patron of unis theatre, entered and took seat Got up at intermission Went back, theatre in darkness, seat missing- had retracted Owed duty But no breach: she was aware it was a retracting seat Doc discharged Burns v Hoyts Ltd (2002) 15. public authorities common law duty of care: Builders may build bad buildings but pub authorities are to supervise etc. The local authority then owes same duty but theyre well resourced therefore attractive defendant. Note: new council owes for whatever old council did anyway. Duty towards visitors and members of public. Pub authorities have extensive statutory obligations?: eg welfare and supervision of children Duty is v often owed by a pub body as an occupier anyway. i. where damage consists of physical injury: ordinary negligence principles apply foresight and breach doc almost always owed, issue=breach. Nagle v Rottnest Island Authority (1993) D occupied and had stat duty to manage and control a pub reserve Reserve included an area of water used for swimming They knew members of pub came there to swim P=young man, never previously visiting the swimming area, he dived into water Head struck a completely submerged rock-hidden danger Sued in negligence High court accepted it was foolish of him to dive into unknown waters However court acknowledge its sometimes foreseeable that an adult wont exercise great reasonable care towards themselves Ds should have known they had hidden dangers and did nothing about it: in breach of doc. Liable. Roads and Traffic Authority NSW v Dederer (2007) Young persons used the bridge for diving into the river and they knew that Easy to do it: top part of bridge=flat rail so you can stand on it, wasnt diff to get up there, two horizontal bars beneath it Bridge had been up 40 yrs: no recorded injury With their knowledge, D did put up clear signage: dont dive P was 14, local, knew about conditions in the river-shifting tides and sandbars so sometimes parts of river=shallow

He was aware it was prohibited to jump Dived into shallows-hit a sandbank-become paralysed Trial judge: found auth liable in negligence having regard to knowledge, age of persons doing it and the danger and gravity of inj On appeal: majority reversed it: mainly because of the sheer expense of taking further measures, only better measure=structural changes to bridge itself. In view of low risk (40 yrs w/o accident)=low probability. Signs alone discharged doc. Ghantous v Hawkesbury City Council (2001) P walking long pub pavement, 1.2 metres wide, lots of ped traffic D=occupiers of the path At the edge of the path was turf and council occupied that land too, they maintained the turf but with traffic and weather, evidence was it eroded frequently At the time: on each side it had sunk by 5 cms Expert testified: in his view that was negligent, rendered the passage unsafe Ppl approaching from other way, they wouldnt get out of the way, had to step aside, fell and was injured High court: no not neg, council cant eliminate weather and normal wear and tear and erosion. Given the level of danger, their maintenance procedure was sufficient PLUS obiter: an ordinary adult pedestrian should be able to cope with that physical difficulty without falling off. Brodie v Singleton Shore Council (2001) Mr S=employed as truck driver, was driving in a convoy of trucks, vehicle contained concrete and total weight=15 tonnes. Had crossed route before, took them over two small timber bridges Occupier of bridges=D council Mr S knew that previously heavy trucks regularly and safely passed bridges Passed first bridge, there was a sign: said max 15 tonnes, he didnt see it: IMMATERIAL Second bridge collapsed Severely permanently injured Sued Ds as occupiers: owed duty Breach?: What was cause of it: experts: supports had rotted out or eaten out by termites Had been recently inspected. Experts: yes you should have seen defective substructure if it were inspected. Council=liable. Tomlinson v Congleton BC [2003] Stovin v Wise [1994] ii. where claim is for property damage: duty owed to foreseeable persons Pyranees Shire Council v Day (1988) Fish and chip shop had a house behind it Tenant at the time lived there and operated business at front Fireplace in house, one day small fire broke out in chimney Fire authority sent forth, fire people easily extinguished the blaze and noticed mortar missing from the chimney. They said: dont use the fireplace, you must have it checked and we must inform council of danger Councils builder inspecter visited soon afterward with Mr A Informed Mr A that fireplace was seriously dangerous It should not be used until repaired Inspector then informed superior: shire engineer who wrote a letter to Mr A saying the same thing and sent it to owners too Note: Mr A=leasee. Mr B wanted to be new tenant, Mr B asked if fireplace was in use: Mr A said yes One night he lit a logfire and went to bed: fire broke out in chimmeny, destroyed his premisis, stock and equipment Spread to adjoining house of C: 40000 damage Mr B sued council for all the costs Negligent, doc was owed to first tenant and on basis of foresight duty owed to second tenant. Breach: There were other powers the council could have exercised, given the level of dangers, it was incumbent that they exercise those other draconian powers: eg carried out repairs themselves.

iii. where claim is for economic loss: duty arises where responsibility has been accepted Sutherland Shire Council v Heyman [1985] In principle, outcome accords with ordinary comm law principles: foresight alone will not give rise to doc. Must be some sort of distinct rship bw p and d that the authority can be said to assume this duty. Built about 6 years previously on steeply sloping land Not enough piers, inadequate to support weight of building Within a year of moving in: house cracking in half Builder=not accessible, sued council for failing in their statutory duties Finding of high court=firstly, this was categorised as economic loss, claiming a sum to remedy the defect With a claim for pure ec loss: foresight of damage wont give rise to the duty There would have to be something to show council assumed resp to P: issue of fact: P could and should have applied for certificates of a certain kind from council: cert that structure of building complied with plans earlier submitted to council. People often do apply for these certs. Held: no assumption of doc as they didnt do this. Analagous with hed byrne/shaddock: advice had been given therefore duty assumed.

Welton v N Cornwall DC [1997] iv. policy may result in denial of duty: Where claim is for something other but includes ec loss, may have to refer to policy which may militate against the imposition of a doc. (a) where primary purpose of Act is jeopardised Sullivan v Moody (2001) Given extensive duty in relation to children: emotional physical and social welfare Included duty to facilitate investigation into child sexual abuse P was father of three, he was in dispute with wife, wife took three children to State sexual abuse centre: examined and spoken to by doctors who diagnosed sexual abuse: father charged Later police abandoned claim, no evidence despite the above reports Father contended experience had caused such social and emotional whatever led to recog psych Held: none of the doctors or centre owed him a duty of care: exposing those persons to negligence claims would undermine the statutory purpose. Jain v Trent Health Authority [2007] Janes ran a care facility for elderly residents: private business but there are statutory obligations If trent thought they were dodgy, power to make an urgent closure order: they did not notify the Jains: served it to them and removed the residents They had to provide grounds but no opportunity for dispute obviously cause its that type of order Grounds=wrong. Jains suffered ec loss: loss of profits, despite neg conduct, no duty arose in the first place, majority found paramount concern of the legislation was welfare of the residents. Second reason: under the act itself there was a procedure for appeal and the jains exercised it: specialist tribunal: they reverse the decision: so they could get their business back but in this case it was too late then anyway. (b) where Act provides its own remedy intention of legislature is that you must use that route to redress. Harris v Evans (1998)

Normally: unless there is fault, no liability. But within these categories, court can find liability regardless of any finding of fault: 3 categories: 1: 16. strict liability: arises in cases where (a) liability is without fault on defendants part, (b) defendants standard of care is strict (a) liability without fault i.vicarious liability: d= faultless and also hadnt personally caused the harm: no causal link. d isnt the tortfeasor but we are holding him responsible for what someone else did. Imagine a scenario involving 2 parties. P has been negligently injured by tortfeasor. Tortfeasor in relationship with other person, that other person is sued because of the relationship occupied bw our d and the wrongdoer. Relationship: we only have 3. 1) 2) True agency rship Partners in a firm bear vicarious liability for each others behaviour

But these arent that important cause there are indemnities available anyway. No indemnity for our third category below: Suppose bill delivers stuff for acme, delivering goods theres a collision with ben, its bills fault. Tortfeasor=bill, but in this case acme is sued because of the employer/employee relationship. Where is the fault in the acme company: doesnt matter if theres no fault on their part. Rationale: Early days: close control that master exercised over servant. Policy view was that master was in a position to exercise proper control, in addition master can afford it. Modern times: control over servant has diminished significantly, but its still there to some extent. True rationale beyond control: its a loss spreading mechanism, so its a more practical claim. How then do we determine the rship:

elements:

master-servant relationship: element of control dicta of Mason J. In Stevens v Brodribb (1986): the existence of control is not the sole criterion, other matters include: mode of renumeration, provision and maintenance of equipment, delegation of work by employer. In other words: control is now an element of the employment rship but if called upon court will look to all the mundane elements of an employee/employment. independent contractor is not encompassed in this category: personally liable: brodribb. Eg electrician doing wiring for me, I havent employed them so its not servant/master rship. employer bears legal responsibility for his/her employee vaboo: in principle bicycle couriers working for vaboo were told what to do and what work to do but they provided their own bicycles, negotiated their own days and paid a fee for deliveries. So hard to categorise, however they ended up being employees as they had to present themselves as vaboo representatives. So a movement forward with the vaboo decision. holding out; Hollis v Vabu Ltd (2001) has to happen within the course of employment: eg doing something theyre employed to do or doing something necessary to fulfil a function. Football playing on factory grounds=incidental to course of employment, they count. Limpus London General Bus Co [1900] Collision: Bus driver in the habit of racing rival buses, employers sued and even though they told him not to, this was enough to attract liability.

Beard v London General Bus Co [1862] cF: Bus conductor drove the bus, excluded because ..? Warren v Henleys Ltd [1948] Tortfeasor=service station attendant, he punched a customer, if it is a frolick of his own, it doesnt count. Deatons Ltd v Flew (1949) Got in fight with customer, continued their argument, she picked up a glass, followed him and smashed glass in his face and blinded him. Employers not vicariously liable, it would have been diff if she has been put in a confrontation but she was pursuing a personal dispute, she already knew him etc Gordon v Tamworth Jockey Club (2003) Short of bar staff, friends asked her to help out, at 10pm she finishsed and sat with friends drinking beer tamworth clubs clearer turned up, alreadyu really drunk, began quarrelling withppl and threw a stubby at a possum and com member walked up to him and told him to go. Then pulled mrs gordn off her stool and threw her on the floor, it was inexplicable personal assault: club did not bear vicarious liability: no causal link. or incidental to the employment Bugge v Brown (1919) employee sent off by employers in a rural setting to cut down thistles, he was provided with food and instructed to cook at farmhouse there, but chose to cook at outside disused venue which was closer, negligently caused fire, employer vicariously liable. Cooking and eating lunch=incidental to job. Lloyd Grace, Smith & Co [1912] Usually anything crim is outside the scope, but here the tortfesor was the solicitors managing clerk, in charge of clients documents and phones, he committed fraud and embezzlement. It was foreseeable that he could use his work to obtain info etc wrongly. Century Insurance Co v N Ire Transport Bd [1942] Parked his vehicle, was being filled with petrol, lit cigarette threw match over his shoulder. Yes vicarious liability.

prohibited acts incur liability Rose v Plenty [1976] Employed by dairy, they had prohibited their roundsmen for employing young people because it was the practice to pay a few shillings for delivery. Boy hanging off edge of van thingo, driver turned the corner and trapped him. Vicariously liable for driver? Dairy said we told them not to do it but it doesnt matter, action successful. borrowed servants: usual tests for employment apply Mersey Docks & Harbour Bd v Coggins [1946] Borrowed a crane driver from the Mersey docks board, driver negligently injured another worker. In the agreement, it stated that new ppl would be the employee. 2 conclusions: normal criteria applied. whilst the agreement doesnt work, they could have used indemnity. ?? ii. strict liability under statute: interpretation: there is a causal link and because of the statute, it might impose on the D egWestwood v Post Office [1974] post office tower building in London , at the time, it was popular amongst the employees to eat lunch on roof of building, particularly attractive because it was built flat. One employee made his way up, normally it was via a staircase on either side of building but this time doors were locked, but he noticed, door to motor room was open so he made his way up through the motor room to a skylight onto the roof, when he was coming back he stepped into a trapdoor on the floor, he fell into it and was crushed by machinery. 1st ground = negligence: def could have been volens cause there was a warning notice on the door.

He knew he was trespassing. 2nd ground= industrial safety statute it said stuff in motor room will be safely and properly constructed and theres no defence of volens under this. Strict liability. (b) where standard of care is strict at common law negligence for ultra-hazardous activity stems from rule in Rylands v Fletcher [1868]

elements of the R v F action: after this it was modified in burnee port auth case, turned into a distinct type of neg action. In the uk, rylands and fletched is a distinct tort, in aus its diff. industrial revolution in England at the time, the facts of the case were that to run the mill, d had engaged independent contractors to build a dam, dam was so negligently constructed, it would damage neighbours homes. D were strictly liable even though it wasnt their fault. Ratio: policy was if a person creates a danger to the comm of a sig time by bringing substances onto his land which have a dangerous propensity. Justice Blackburn: if a person brings onto his land something that will be likely to do mischevious escapein other words, if you create an extraordinary risk, u meet the damage authomatically. i.defendant brings onto his land Charing Cross v Hydraulic Power Co [1914]: underground cable SA Telegraph Co v Capetown Tramways [1915]: underground waterpipes So for all three above: they must have control over it and it must do damage. ii. anything likely to do mischief Mason v Levy Auto Parts Ltd [1967] Dangerous thing can be a combo of things, din their yard, near wooden fences, near masons property, had accumulated petrol, cardboard paper, boxes, paint, cleaning materials. Fire started, they couldnt discover cause but it destroyed ps land, court found it was R&F liability, iii.which escapes and does damage iv.rule incorporated into negligence: Burnie Port Authority v General Jones (1994): new part of building was partly constructed, port auth was occupier the whole time. Ps were tenants, they had an office building and rented storage space. Stage b: labour was being done by burnie ports ppl but they had to bring in subcontractors to bring in refridgeration materials etc: they used isolyte: it has high combustion point, if you bypass it and it ignites, cant put out the fire. They brought in 30 boxes of that stuff, and to burnies knowledge, they stored it there and let welders weld near it. Ps sued burnee port auth for their destroyed goods, high court held: in aus comm law, r v f is no longer a distinct tort but r v f principles are absorbed into gen law of negligence, so it changes the form of the action into a neg action, but if so we need to have neg establishsed; high court said it was established with a doc, in America or in some states. D in taking in isoyle were engaging in ultrahazardous activity, it follows that soc is elevated to the equivalent of a stat strict liability. Soc so high, only way to escape liability then seems like defence: HE THINKS. where a d engages in an ultrahhazardous activitiy, soc is elevated to the highest notional level. It becomes equivalent to a guarantee that the activity will not harm others. It becomes equivalent at comm law to strict liability under statute. v.examples applying burnie: Crowhurst v Amersham Burial Board [1878] Shiffman v Order of St.John [1936] Well known charity, there was an event, marquee up, theyd put a flag up with a red cross so ppl knew where to bring their casualties. Flag pole collapsed and struck p on the head, at the time he was able to invoke the rule in r v f, but d had brought onto land something capabale of danger if it escaped. Burnee: flag pole had been secured by rope but today action would be in negligence of not securing a dangerous flagpole in that rot of place Hale v Jennings Bros [1938] Fun fair, travelled from place to place and they got people as independent contractors to put their machinery together, specifically there was a ride called a chairoplane, it puts them up in the air, spins around. Were they liable to ppl on chairoplane, r v f: had taken control of a mischievous thing cause it spun off. If they invoke burnee port, first there must be a finidng tha equipment or having it =ultrahazardous activity, we can only speculate on that.

Its about keeper of animal rather than owner. So anyone who has control of it at the time may be d.

(c) i.

liability for animals: s.22 Domestic Animals Act 1999 (Vic)keeperof dog causing damage to person or other animal. Strict liability for a dog causing damage to a person or another animal. strict liability for cattle trespass ancient rule of cattle trespass, in early times if keeprs cattle wandered onto neighborng land and damaged crops=strict liability is imposed on keeper. This rule over later yrs was broaded in two ways: lots of other animals are now cattle: all the standard farmyard animals: horses etc secondly, meaning of damage has extended: eg: ds ox got into china store

ii.

Halstead v Ward (1919) McLean Ltd v Meech (2005): horse got out onto highway. More interestingly, in may and Burdett: ds bull had escaeped onto neighbouring land of the ps were p had cows, bull impregnated cows, yes strict liability.

iii. common law scienter action for damages: animalsferai naturae: regarded in their natural state fierce and dangerous animals, in that category: elephants, zebras, gorillas, bears, lions and tigers have been situated. Similar to rylands and fletched, policy was and law remains that comm law imposes strict liability in the keeper. If ds lion gets out, d only needs to prove that lion caused the harm. May v Burdett (1846) Ds monkey got loose, jumped on p and bit him: strict liability was invoked Brook v Cook [1960]: Bengal tiger escaped, a local was sleeping with bedroom window open, Bengal tiger popped through window, fell asleep on bottom of bed, p suffered heart attack when he saw it. It didnt hurt him directly but there was still strict liability animalsmansuetae naturae: theres an assumption that they are naturally safe animals. Caveat: if a horse being regarded as domesticated does not in the first place attract liability, there may be liability when negligence is proved. It has to be particularly dangerous domestic animal: like in eather v jones. liability for negligence Eather v Jones [1960] knowledge of the dangerous personality of horse was imputed to the keeper: he already had bit other camels. Nada Shah v Sleeman [1917] camel attacked, but court found camel is domesticated creature, so no stict liability unless it can be establishsed it was a particularly dangerous camel