LECTURE ONE: Negligence Overview

The tort of negligence requires harm to the plaintiff Damage is the gist
of a negligence action (Harriton v Stephens)

That harm is usually physical, but may also be financial or psychological.

A negligence action cant be brought until the harm crystallizes.

Negligence requires fault on the part of the defendant. However, there

need not be any intent to harm.

The elements of negligence

1. Duty of care
2. Breach of the duty (standard of care)
3. Causation
4. No defences

Duty of care I

In order for the P to bring an action in negligence, s/he must show that the
D owes the P a duty to take reasonable care.

The duty of care is a legally recognized relationship between the parties as

a result of which one is said to have responsibilities to the other (even if
the parties are strangers).

Duty of care II: established duties

Duties come in two versions:
(i)

established categories of duty (eg, doctor/patient); and

(ii)

novel duties that need to be established in each case.

As a general rule, if a person sustains bodily injury or property damage as

a result of the direct impact of the positive act of another, a duty of care
on the part of the person who caused the harm can be established.

Novel duties: the salient features approach

Where no established duty exists, courts have developed principles to

guide them in deciding whether a duty of care should be imposed.

Australias approach was developed by the High Court in 2002 in Graham

Barclay Oysters v Ryan.

When faced with a factual scenario that does not fit within an established
duty, a judge considers the following salient features:

The Ds ability to exercise control or avoid harm.

The Ps vulnerability to harm arising from the Ds conduct

The Ps reliance on the D

The Ds assumption of responsibility

The Ds actual or constructive knowledge that the conduct will

cause harm to the P

Broadly defined policy considerations

Standard of care

If P is able to establish that D owed a duty of care, the next element P

needs to demonstrate is that D breached that duty of care.

To demonstrate that the D breached his or her duty of her, the P must
established that the Ds conduct fell below the requisite Standard of
Care.

Common law SOC test

At common law, SOC is established via a two step process (Wyong Shire Council
v Shirt)
(i) The P must establish that the risk of injury was foreseeable to the
reasonable person.
(ii) If (i) is satisfied, the court considers the negligence
what the reasonable person
would do considering:

calculus to determine

The probability of the risk materialising

The gravity of the harm

The practicability/burden of taking precautions

The social utility of Ds conduct.

Causation I

The third element of negligence is causation: the Ds breach must have

caused the Ps damage.

In other words, can responsibility for Ps harm be attributed to Ds actions?

Causation II
Causation includes two elements:
(i) Factual causation the but for test. But for Ds actions, would the pl
have been harmed? This question is answered on the
balance of
probabilities.
(ii) Scope of liability essentially a policy
question. The court must ask
whether or not and
why responsibility for the harm should be
imposed
on D, and whether it is appropriate
for the scope of Ds liability to extend to
responsibility for this harm.

No defences

The final element of a successful negligence action is that the D has no

defences available.

The D has the onus of establishing a defence.

The most common defences are:

Contributory negligence that Ps conduct contributed to his/her

injury.

Voluntary assumption of risk P was aware of the risk, appreciated

the nature of the risk, and freely and willingly assumed it.

Statutory defences

Most states, including Victoria, have introduced statutory provisions

applicable where the P is intoxicated or engaged in illegal conduct when
the harm occurs (Wrongs Act 1958 (Vic) s 14F & s 14G).

In Victoria, the Ps intoxication or illegal conduct must be considered in

assessing the standard of care owed to the P (so not actually a defence).

Taming tort

Over the past decade, the common law elements for negligence have
been codified into a statute by most states.

The codification process has placed limits on the common law rules,
making it harder for Ps to succeed and reducing damages awards.

The changes were prompted by the Ipp Panel report in 2002.

Victorias codification is found in the Wrongs Act 1958 (Vic).

LECTURE TWO: Introduction to Standard of Care

Overview: In this weeks class, we discuss our first element of the tort
of negligence: standard of care. In the tort of negligence, the plaintiff
must demonstrate that the defendant breached his/her duty of care to
the plaintiff by falling below the standard of care expected of the
reasonable person in the circumstances of the case. In this class we
will focus on the concept of the reasonable person

CLASS OUTLINE:

Introduction to standard of care

The reasonable person concept

Modifications to the reasonable person standard

Children (arent held to the same

standard)

The mentally ill (are held to the same standard)

Special skill (professionals)

Statutory changes to the common law special skill test

Introduction to the SOC

Negligence requires that P demonstrate that D breached his/her duty of

care.

To demonstrate that D breached his or her duty/standard of care owed of

her, P must established that Ds conduct fell below the requisite SOC.

So there are two questions you need to ask:

What is the requisite standard of care?

Did the Ds conduct fall below the requisite standard of care (a purely factual
question)?

Determining the SOC

At common law (Wyong Shire Council v Shirt) and under statute, the requisite
standard of care is established via a two step process):
1.

P must establish that the risk of injury was foreseeable to the reasonable
person.
Was there a foreseeable risk to the reasonable
person?

2. If the risk was foreseeable, the court must balance the four factors that
make up the negligence calculus to determine what precautions the
reasonable person would have taken:

The probability of the risk materializing

The gravity of the harm

The practicability/burden of taking precautions

The social utility of the Ds conduct.(e.g Firefighter rushing to fire

may take less precautions)

This common law test is now encapsulated in the Victorian Wrongs

Act. The legislation doesnt change this basic formulation test.

The reasonable person

The reasonable man is the man on the Clapham omnibus, who is "the man
who takes the magazines home, and in the evening pushes the
lawnmower in his shirt sleeves.
Reasonable man is an ordinary/average citizen who is prudent/objective.
He is presumed to be of average
intelligence/literate/employed/mechanical/ hardworking.

The reasonable person is an objective standard; the Ds personal

idiosyncrasies are irrelevant(erased from the test).

We are all held to the same standard, with a few exceptions. The law
should apply equally to all defendants

So in asking what the reasonable person would do in the circumstances of

the case, we are asking what the reasonably intelligent and prudent
every person would do.

If the D acts contrary to that of the reasonable person, D has likely fallen
below the SOC.

Modifications to the reasonable person standard

There are two situations in which modifications to the reasonable person

standard are now well established:

Children held to a lower standard.

Those with special skills, such as doctors, who are held to a higher
standard according to their professional skills.

SOC for children

McHale v Watson (HCA, 1966):
A child cannot argue that the harm he [sic] caused was due to him being
abnormally slow-witted, quick tempered, absent-minded or inexperienced. But it
does not follow that the child cannot rely upon a limitation upon the capacity for
foresight or prudence, not as being person to himself, but as being characteristic
of humanity at his stage of development and in that sense normal.
Did the D fall below the requisite standard of care?
Children are not held to the same standard as adults.
E.g A 12 year old is held to the standard of a reasonable 12 year old. (and that
standard is not idiosyncratic)
Cf Zanner v Zanner (2010, NSWCA
Facts: Child drove car into carport. His foot slipped from brake onto accelerator
hitting his mother. Mother sued child for insurance.
The act of negligence was the failure of the child to keep his foot on the brake
and to prevent it slipping onto the accelerator. This was not an activity whose
importance would be beyond the understanding of an 11 year old. It is a mistake
that could happen to an adult as well as to a child of [the defendants] age.
Holding: Mother is found to be 80% responsible for her injury while child is held
20% responsible. The reasoning is the average 11 yr old understands you keep
your foot on the brake and the child had done this several times already.

Mental illness

Carrier v Bonham (Qld CA, 2002): mental illness in the D is not a reason to
deviate from the objective reasonable person standard.

To lower the SOC for people with mental illness would be to take into
account idiosyncrasies, as mental illness is not normal or, as with
childhood, a stage of development through which we all pass.
Australia doesnt take mental illness into account when assessing standard
of care. To allow SOC to be lowered for people with mental illness would be
introducing idiosyncrasies.

If it is a physical ailment court will lower the standard. If it is a mental

ailment, the standard stays the same.

Special skills & the reasonable person

Common law test: what a reasonable person with the Ds special skill,
training or experience would or would not have done in the circumstances
of the case.

Wrongs Act test (s 58): an assessment of the standard of care in a case

of a person who holds him or herself out as possessing a particular skill is
to be determined by reference to what could reasonably be expected of a
person possessing that skill at the time of the alleged negligence.
*If you have a special skill, you are expected to act according to the
standard of the person with the special skill.

Heydon v NRMA (2000, NSWCA)

The defendant lawyers acted reasonably on the grounds that when giving advice
lawyers do not warrant or guarantee the soundness of his or her opinion but
only that the requisite degree of skill and care has been used in arriving at it.
Here, where the professional negligence is alleged to consist, at least in part, in
failing to warn of a risk that legal advice given to a client might turn out to be
mistaken, a lawyer is not normally required to warn experienced business clients
of the possibility that his opinion, though firmly held, may not in fact prevail.
Determining standards: General Practice, Custom & Regulation

Historically we have looked to general practice or custom within the field

to make decisions about reasonableness. Industry regulations or
procedures have also provided guidance.

Two issues with this approach have emerged:

Sometimes industry standards or customs are too low

There may be situations in which not everyone in the industry

agrees as to the appropriate standard
E.g battle of experts

Roche Mining v Jeffs (2011, NSWCA): Latham CJ held that while

conforming to industry practice is important, it does not necessarily
establish an absence of negligence.
The D was complying with the industry standard but was falling below
standard of care.

Reason: Industries can become lax (especially self regulating industries),

they cut costs by reducing employing protection which leads to a lower
standard.

Fox v Hack (1984, QLD SC)

Such provisions [the industrial award] are admitted not [as evidence] having
statutory force but as evidence of what might be said to be a standard or norm
of behavior reasonably required of an employerThe provision outlined in the
award is in my opinion a reasonable one and may be taken as evidence of a
reasonable standard of care to be expected of an employer in the building
trade.
Question: What effect does an industry award have?
Conclusion:
Similarly, not binding awards are indication of reasonable standards but law is
not consistent

Ascic v Westel Co-op (1992): non-binding awards could be used as an

indication of a standard reasonably required of an employer when
involving his [sic] employee in a particular task.

Cf Talbot-Price v Jacobs (2008, NSWCA): breach of a statute or

regulation may be evidence of negligence but is not irrefutable proof of
negligence. Every case has to be decided according to its own
circumstances.

Tucker v McCann (1948 Vic SC): the facts of the case may make it such
that obedience to the regulations may as a matter of prudence be the
very worst course to take (eg, where to disobey may avoid injury or save
life.)

Summary of industry standard rules

Industry standards may be too low, so compliance with them may

still involve a breach of the SOC

Industry standards, and even statutes, are a good guide to what the
reasonable person should do and can be admitted as evidence of a
reasonable standard of care.

But, failure to comply with industry standards isnt sufficient to

prove a breach of the SOC. The circumstances of the case must be
assessed.

Professionals & SOC: the Bolam principle

The Bolam principle may be formulated as a rule that a doctor is not negligent if
s/he acts in accordance with a practice accepted at the time as proper by a
responsible body of medical opinion even though other doctors adopt a different
practice.
Australia adopted the Bolam principle but was overturn in 1992..

Rogers v Whitaker (1992, HCA) (refer to pg 88)

The law should recognise that a doctor has a duty to warn a patient of a
material risk inherent in the proposed treatment; a risk is material if, in the
circumstances of the particular case, a reasonable person in the patients
position, if warned of the risk, would be likely to attach significance to it or if the
doctor is or should reasonably be aware that the particular patient, if warned of
the risk, would be likely to attach significance to it.

Abolition of Bolam
In Naxakis v Western General Hospital, the HCA concluded that Bolam
wasnt to be followed in any case involving medical care (information/risk,
treatment or diagnosis).

Doctors could no longer avoid liability by pointing to a group of colleagues

who agreed with their approach.
Statutory reform of SOC rule for professionals: back to Bolam
The Ipp panel recommended that diagnosis and treatment be dealt with
differently than provision of information and advice (which was in line with
what the HCA had said in Rogers v Whitaker).

Wrongs Act, s 59
S 59(1): A professional is not negligent in providing a professional service
if it is established that the professional acted in a manner that (at the time
the service was provided) was widely accepted in Australia by a significant
number of respected practitioners in the field (peer professional opinion)
as competent professional practice in the circumstances.

(2) However, peer professional opinion cannot be relied on for the

purposes of this section if the court determines that the opinion is
unreasonable.
Doctors are held to different standards depending on the state they are in.

Wrongs Act, s 59
(3) The fact that there are differing peer professional opinions widely accepted in
Australia by a significant number of respected practitioners in the field
concerning a matter does not prevent any one or more (or all) of those opinions
being relied on for the purposes of this section. (deals with conflicting peer
opinions)
(4) Peer professional opinion does not have to be universally accepted to be
considered widely accepted.

Wrongs Act, s 60

Section 60: section 59 does not apply to a liability arising in connection

with the giving of (or the failure to give) a warning or other information in
respect of a risk or other matter to a person if the giving of the warning or
information is associated with the provision by a professional of a
professional service.

-widely accepted peer professional opinion doesnt apply when it relates to

risk
S.57 defines professional to be an individual practicing profession.

These provisions apply to all professionals. If our D can show he/she acted
in accordance that is widely accepted in their field, the court will
automatically conclude the D has not breached their standard of care.
The court does have the option of finding the ??? Brought before them as
being unreasonable.

Ultimately, cases are going to turn on the strength of your experts.

Courts will weigh up differing opinions and conclude which one is most
credible.

In the case of warning/risk, these must be provided.

Summary of statutory provisions

If you are determining the standard of care expected of a
professional, you must apply s 59 (widely accepted peer
professional opinion, unless unreasonable)

If D can show s/he acted according to professional practice widely

accepted by peer professional opinion (unless unreasonable) there
is no liability.

However, s 59 pertains only to provision of a service (eg, treatment

and diagnosis in the case of doctors).

The SOC with regard to warnings, advice and other information

continues to be dealt with by the common law (Roger v Whitaker:
Ps must receive warnings about all material risks).

Non-professionals with special skills E.g gardeners, trade

Section 58: In a case involving an allegation of negligence against a person who
holds himself or herself out as possessing a particular skill, the standard to be
applied by a court in determining whether the defendant acted with due care is,
subject to this Division, to be determined by reference to

(a) what could reasonably be expected of a person possessing that skill;

and

(b) the relevant circumstances as at the date of the alleged negligence

and not a later date.

Reasonable foreseeability
To demonstrate a breach of the standard of care
i. The P must establish that the risk of injury was foreseeable to the
reasonable person
ii. If the first element is satisfied (the reasonable person would foresee
the risk),
the court must consider the negligence
calculus which
involves a balancing of four
factors.
What is foreseeable? (what the reasonable person can foresee, depending on
knowledge/training, etc. of the D) Your capacity to foresee is caught up with who
you are with regard to the reasonable person.

H v Royal Alexandra Hospital for Children (1990, SC NSW)

The first Australian case of AIDS was published in April 1983. I have no difficulty
in concluding that reasonably informed physicians, scientists and blood
transfusion services in this country ought to have been well aware by at least
April 1983 that there was a real risk that among the unknown and unidentified
sources of infection which blood and blood products had the capacity to carry
[was HIV].

As knowledge changed, unforeseeability changed.

-How foreseeable is the risk? How great does that foreeseeable risk of
injury has to be?

Wyong Shire Council v Shirt (HCA, 1980)

A risk of injury which is quite unlikely to occurmay nevertheless be plainly
foreseeable. Consequently, when we speak of a risk of injury as being
foreseeable we are not making any statement as to the probability or
improbability of its occurrence, save thatthe risk is not one that is far-fetched
or fanciful.
Wyong Shire Council v Shirt established the standard of care test.
If you can demonstrate the risk is far-fetched/fanciful, then you are not obliged to
take precautions.
If the risk is not far-fetched or fanciful, a reasonable person would consider
taking precautions against it.

Nagle v Rottnest Island Authority (1993, HCA)

The risk of injury to those diving from the rock ledge was reasonably
foreseeable. It may have reasonably been considered foolhardly or unlikely for a
person to dive as the P did. But that is not the relevant question; a risk may
constitute a foreseeable risk even though it was unlikely to occur. It is enough
that the risk is not far fetched or fanciful. There was a distinct possibility that a
person might dive into the water at The Basin in circumstances where it was no
safe to do soWhether small or not, the risk was certainly not far fetched or
fanciful.

Wrongs Act: the not insignificant test

Section 48(1): A person is not negligent in failing to take precautions

against a risk of harm unless

(a) the risk was foreseeable (that is, it is a risk

knew or ought to have
known); and

of which the person

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person
position would have taken
those precautions.

in the person's

far-fetched and fanciful test is gone and replaced by not insignificant test.

Wrongs Act, s 48

Section 48(3) For the purposes of subsection (1)(b)

(a) insignificant risks include, but are not limited to, risks that are farfetched or fanciful; and

(b)risks that are not insignificant are all risks other than insignificant
risks and include, but are not limited to, significant risks.

Meandarra Aerial Spraying v GEJ Geldard (QLD CA, 2010)

[The amendments] did produce some slight increase in the necessary degree of
probabilityThe difference is a subtle one. The increase in the necessary degree
of probability is not quantifiable and it might be so minor as to make no
difference to the result in most cases. Nevertheless in deciding claims to which
the Act applies the not insignificant test must be applied instead of the
somewhat less demanding test of not far fetched or fanciful.
In summary,
1. Reasonable person for standard of care
2. Foreseeability
Lecture 3: Standard of Care II
Overview of topic: In this class, we focus on the second element of
standard of care: the calculus of negligence. The calculus of negligence

is a balancing tool which is used to determine whether a reasonable

person would have taken precautions against a risk of harm. The
calculus requires the court to weigh up the probability of harm, the
gravity of the harm, the burden and practicality of taking precautions
and, where relevant, the social utility of the activity.
Outline
The calculus of negligence
Common law
Statute
3. Probability
4. Gravity
5. Burden of taking precautions
6.
7.
8.
9.

Social utility
Obvious risks
Intoxication
Illegality

SOC test
1. The P must establish that the risk of injury was foreseeable to the reasonable
person.
2. If the first element is satisfied (the reasonable person would foresee the risk),
the court must consider the negligence calculus which involves a balancing of
four factors.
The probability of the risk materializing
The gravity of the harm
The practicability/burden of taking precautions
The social utility of the Ds conduct.

Calculus of negligence (Wyong Shire)

In deciding whether there has been a breach of the duty of care the tribunal of
fact must first ask itself whether a reasonable [person] in the Ds position would
have foreseen that his/her conduct involved a risk of injury to the P or to a class
of persons including the P. If the answer be in the affirmative, it is then for the
court to determine what a reasonable [person] would do by way of response to
the risk. The perception of the reasonable persons response calls for a
consideration of the magnitude of the risk and the degree of probability of its
occurrence, along with the expense, difficulty and inconvenience of taking
alleviating action and any other conflicting responsibilities which the D may have
(social utility). It is only when these matters are balanced out that the tribunal of
fact can confidently assert what is the standard of response to be ascribed to the
reasonable [person] in the Ds position.
-common law test

-codified in section 48 (2) of the Wrongs Act

-Common law test for calculus of negligence and Wrongs Act test is the same

Wrongs Act (Vic)

Section 48(2): In determining whether a reasonable person would have taken
precautions against a risk of harm, the court is to consider the following
(amongst other relevant things:
the probability that the harm would occur if
care were not taken;
the likely seriousness of the harm
the burden of taking precautions to avoid
the risk of harm
the social utility of the activity that creates the
risk of harm.

Probability
If the probability of harm occurring is low, it may be that a reasonable D
does not have to take precautions.(even when there is foreseeable risk of
harm)
It is important to correctly identify the risk the D is being asked to protect
against in order to determine its probability. (State what the risk is..)
-Roads & Traffic Authority of NSW v Dederer (HCA, 2007) (more info on case in
lecture 3 case summary)
A defendant is not an insurer. Defendants are not under absolute duties to
prevent injury, or indeed even to take all such measures as might make it less
likely to occur.
- Shaw v Thomas (2010, NSW CA)
A duty of care imposes an obligation to exercise reasonable care; it does not
impose a duty to prevent potentially harmful conduct (Dederer).

Gravity/severity
The second element in the negligence calculus is an assessment, if the
risk came to fruition, of the gravity or seriousness of the harm. (How
severe or grave would the harm be?)
The greater the harm that may befall the P if the risk of injury eventuates,
the more likely it is that the D should take precautions.

Paris v Stephney Borough Council (1951, UK)

Burden of taking precautions

The third element in the calculus the burden or practicality of taking
precautions is weighed against the previous two elements (gravity &
severity).
The approach to this third element was spelled out in Mason Js approach
in Shirt: the court must consider the expense, difficulty and
inconvenience of taking alleviating action.
-You are not eliminating the risk but rather warning people of the risk.
-Romeo v Conservation Commission (1998, HCA)
- Roman Catholic Church Trustees v Hadba (HCA, 2005)
- NSW V Bujdoso (2005, HCA)
- Graham Barclay Oysters v Ryan [2002, HCA]
- Goldman v Hargrave (1967, Privy Council)

Social utility
The final factor to consider as part of the negligence calculus is social
utility which involves determining the social desirability of the Ds
enterprise and conduct.
Cases where social utility is relevant are fairly rare. They often arise in
cases of emergency, but the notion has recently been broadened to
include a wider array of social benefits (eg, the social utility of a pleasant
environment)
-historically, this has been focused entirely on emergency situations. A
different standard of care applies but it has to be an emergency situation.
There may be a social utility in protecting the environment.

Watt v Hertfordshire County Council (1954, UK)

Paterson v McGinlay
Rhodes v Lake Macquarie City Council:

Obvious risks: Vairy v Wyong Shire Council (2005, HCA)

Intoxication and illegality: Wrongs Act (Vic), s 14G

LECTURE FOUR: CAUSATION

Overview: In this weeks class, we will discuss the third element of the
tort of negligence: causation. If the P is able to demonstrate that the D

breached his/her standard of care, the P must then show that the
defendants breach caused the P's injuries. Causation, which is codified
in Victorias Wrongs Act, is made up of two elements: (i) factual
causation; and (ii) scope of liability. Both will be discussed in this class.

Outline of lecture

What is causation and why is it difficult?

Statutory regime

Factual causation

The but for test & necessary condition

Material contribution

Exceptional cases

Loss of chance

Scope of liability

Intervening acts

Egg shell skull rule

Wrongs Act (Vic) s 51(1)

Section 51(1): A determination that negligence caused particular harm comprises
the following elements
(a) that the negligence was a necessary
of the harm (factual causation); AND

condition of the occurrence

(b) that it is appropriate for the scope of the negligent person's liability to
extend to the
harm so caused (scope of liability).

Wrongs Act: Factual causation

Factual causation is codification of the but for test.

The but for test may be stated as: would the Ps injuries have been
suffered but for the Ds negligence? (If it wasnt for the negligence of the
D, would the P have suffered injury?)

Thus, if the P would have been injured even if the D had not been
negligent, then the Ds negligence is not the factual cause of the Ps
injuries.

Wrongs Act, s 51(2)

Section 51(2): In determining in an appropriate case, in accordance with

established principles, whether negligence that cannot be established as a
necessary condition of the occurrence of harm should be taken to establish
factual causation, the court is to consider (amongst other relevant things)
whether or not and why responsibility for the harm should be imposed
on the negligent party.

Wrongs Act: Scope of liability

Section 51(4): For the purpose of determining the scope of liability, the court is
to consider (amongst other relevant things) whether or not and why
responsibility for the harm should be imposed on the negligent party.

Scope of liability requires an entirely discretionary decision on the part of

the court. It requires a judge to make a discretionary decision as to
whether it is appropriate for the Ds scope of liability (ie, the extent of a
Ds liability) to extend to harm of this kind.

This is a policy based analysis where the judge asks whether, as a society,
we want the Ds liability to extend to the type of harm the P has suffered.

Step 1: Factual causation

S 51(1)(a): that the negligence was a necessary condition of the

occurrence of the harm.

That is, without the Ds breach, the Ps injury would not have occurred.

The High Court concluded in Wallace v Kam that the question of factual
causation must begin with the but for test. But for the defendants
breach, the plaintiffs harm wouldnt have occurred.

The but for test

The but for test may be stated as: would the Ps injuries have been
suffered but for the Ds negligence? If the P would have been injured even
if the D had not been negligent, then the Ds negligence is not the factual
cause of the Ps injuries.

The but for test requires the court to compare what actually happened
with what might, hypothetically, have happened if the D had not breached
his/her standard of care.

The causation inquiry

Fitzpatrick v Job (2007):

The issue of causation requires a P to prove what would probably have

eventuated had the Ds negligence not occurred. This is necessarily a
hypothetical question and involves an evaluation of circumstances
which did not in fact happen.
Adeels Palace v Moubarak (HCA, 2009)

Three key points made:

The question of causation is now determined by statute (s 51 in

Victoria; s 5D in NSW)

Factual causation and scope of liability (which is more policy based)

are separate and distinct issues and should be treated as such.

Factual causation still draws on the but for test: but for the Ds
negligent act or omission, would the harm have occurred?

The evidence did not show that security personnel could or would have
prevented re-entry by the gunman: a determined person armed with a gun and
irrationally bent on revengeRecognising that changing any of the
circumstances in which the shootings occurred might have made a difference
does not prove factual causation. Providing security at the entrance might have
delayed the gunmans entry; it might have meant thatsomeone [other than the
first P] might have been shotBut in the present case, the but for test of
factual causation was not established. It was not shown to be more
probable than not that, but for the absence of security personnel the
shootings would not have taken place. That is, the absence of security
personnel at Adeels Palace [the breach] was not a necessary condition of the Ps
being shot

Probability, proof and inference

The Wrongs Act explains the role of probability in s 52: In deciding liability
for negligence, the P always bears the burden of proving, on the balance
of probabilities, any fact relevant to the issue of causation.

Balance of probabilities is the test of more likely than not or 50% + 1.

Ask yourself what would have happened if the D had not breached the
SOC. Is it more likely than not that the P would still have suffered the
injury? If the answer is yes, then, on the balance of probabilities, the Ds
negligence was not the cause of the injuries. If the answer is no, then, on
the balance of probabilities, the Ds negligence was the cause of the
injuries.

Material contribution & factual causation

Over the years, the common law but for test has been modified through
the notion of material contribution.

To establish factual causation, it is often said that the P must prove that
the Ds breach caused or materially contributed to the Ps harm.

Material contribution survived the statutory codification of causation and is

part of the factual causation analysis.

Bonnington Castings v Wardlaw (1956, H of Lords)

The Ds breach does not have to be the sole cause of the injury.

If the causal connection between the Ds breach and the harm can be
made (ie, exposure to silica was a necessary condition of the injury) it is
sufficient that the breach have materially contributed to the injury.

Amaca P/L v Ellis (2010, HCA)

Both smoking and the inhalation of asbestos fibres could cause lung cancer, and
no medical assessment could determine why Mr C developed the disease.

Large scale epidemiological studies suggested that the probability of the

asbestos causing the lung cancer could be no more than 23%, while there
was a 67% chance that the cancer was caused by smoking.

Thus, the Ps case must fail (because 23% is not probable), because the
breach cannot merely be a possible cause; it must be a probable cause
(50% + 1).

Because Mr C was a smoker, the P had not established that it was more
probable than not that the asbestos exposure was a cause - a necessary
condition of the cancer. Mr C could have contracted lung cancer without
the exposure.

Increased risk of harm

Amaca: it is insufficient to show that Ds breach increased the risk of Mr C

contracting lung cancer because increased risk is not the same as
establishing a causal connection on the balance of probabilities.

Thus, increased risk of harm due to a tortious act is, alone, is insufficient
for a conclusion of causation by material contribution to harm.

Exceptional cases & factual causation

A second line of cases that extend the traditional but for causation
analysis are what is referred to as the exceptional cases.

The exceptional cases come out of another decision of the H of Lords:

Fairchild v Glenhaven Funeral Services (2003, H of Lords)

NOTE: Fairchild and the line of UK cases that followed it HAVE NOT been
endorsed by the HCA. However, statutory provisions in most states allow
for a version of the exceptional case rule.

Fairchild v Glenhaven Funeral Services (2003, H of Lords)

each of the Ps had developed mesothelioma as a result of workplace

exposure to asbestosis dust during periods of employment with more than
one employer. Each P could establish a breach on the part of each
employer, but could not establish, on the balance of probabilities, which
employer had exposed the P to the actual asbestos dust that caused the
disease.

Held: The H of Lords held, largely for reasons of public policy exceptional
cases, that in such a case, proof that each employers wrongdoing had
materially increased the risk of contracting the disease was sufficient to
satisfy the causal requirement for liability.

Australia has not followed the exceptional case rule/risk of harmbut

the idea has been incorporated into state legislature. (watch
again..1.50)
Wrongs Act, s 51(2)

Section 51(2): In determining in an appropriate case, in accordance with

established principles, whether negligence that cannot be established as a
necessary condition of the occurrence of harm should be taken to
establish factual causation, the court is to consider (amongst other
relevant things) whether or not and why responsibility for the
harm should be imposed on the negligent party.

Judges can rely on policy arguments to create factual causation- can help
establish why a defendant should be held responsible.

Difference between Fairchild and Amaca: We know Fairchild definitely caused the
asbestosis. Whereas AMACA, we dont know for sure whether the injury was
caused by asbestos or smoking.

Loss of chance of a better outcome & factual causation

-Another issue that can occur where the injury/harm done to the P is the loss of
the chance of a better outcome.

When establishing factual causation it is necessary for the P to

demonstrate what would have happened had the D not breached his/her
SOC. But for the Ds breach, the injury would not have occurred.

But what happens, if it is the chance of a better (medical) outcome that

the Ds negligence took away?

The courts have refused to treat the loss of a better medical outcome,
where medical negligence has been established, as damage capable of
being compensated, unless it can be clearly established that a better
outcome was probable (50% + 1).

Tabet v Gett (2010, HCA)

Resort to the language of chance cannot displace the analysis necessary for
the determination of the issue of causation of damage. Properly analysed, what
is involved in the chance referred tois the possibility, to put it at its highest,
that no brain damage would occur or it would not be so severeExpressing what
is said to be the loss or damage of a chance of a better outcome recognizes
that what is involved are mere possibilities and that the general standard of
proof [probability] cannot be met. The P is unable to prove that it was probable
that, had treatment been undertaken earlier, the brain damage would have been
avoided.
How would the P have acted?

In assessing causation, it is sometimes necessary to ask what a P would

have done, had the breach not occurred.

Usually, the P is trying to demonstrate that had they been informed of a

medical risk, they wouldnt have proceeded with the treatment.

The approach taken by the Australian courts is to assess this question

subjectively: what would this individual P have done had they been given
the advice?

Rosenberg v Percival (2001, HCA)

Under the Australian CL, in determining whether a patient would have
undertaken surgery, if warned of a risk of harm involved in that surgery, a court
asks whether this patient would have undertaken the surgery. The test is a
subjective test. It is not decisive that a reasonable person would or would not
have undertaken the surgery. What a reasonable person would or would not have
done in the patients circumstances will almost always be the most important
factor in determining whether the ct will accept the Ps evidence as to the course
that the P would have taken. But what a reasonable person would have done is
not conclusive. If the tribunal of fact accepted the evidence of the P as to what
he or she would have done, then that is the end of the matter.
What would a reasonable person have done?

Wallace v Kam (HCA, 2003)

Test: In a case where a medical practitioner fails to exercise reasonable care and
skill to warn a patient of one or more material risks inherent in a proposed
treatment, factual causation is established if the patient P proves, on the balance
of probabilities, that the patient has sustained, as a consequences of having
chosen to undergo the medical treatment, a physical injury which the P would
not have sustained if warned of the material risk (because the P would not have
undergone the treatment).

Step 2: Scope of liability (rewatch)

S 51(1): A determination that negligence caused particular harm comprises the
following elements

that the negligence was a necessary condition of the occurrence of

the harm (factual causation); and

that it is appropriate for the scope of the negligent person's liability

to extend to the harm so caused (scope of liability).

S 51(4) For the purpose of determining the scope of liability, the

court is to consider (amongst other relevant things) whether or not
and why responsibility for the harm should be imposed on the
negligent party.

Should a D be responsible for things that are really remote?

Should D be responsible when the P has a thin skull?

Wallace v Kam (2013, HCA)

Held: The normative [policy] judgment that is appropriate to be made is

that the liability of a medical practitioner who has failed to warn the
patient of material risks inherent in a proposed treatment should not
extend to harm from risks that the patient was willing to hazard,
whether through an express choice or as found had their disclosure had
been made.

So even though the D breached his SOC by failing to disclose all of the
risks, because the P would have gone ahead with the surgery even if the
risk of neurapraxia had been disclosed, D is not liable. It would go beyond
the Ds appropriate scope of liability to hold him responsible in such a
situation.

Remoteness of damage

The concept of remoteness used to be a separate element of the tort of

negligence. The idea behind it was that Ds are not responsible for remote
injuries (injuries that were not foreseeable).

The concept of remoteness is now incorporated into the scope of liability

analysis in that, as a matter of public policy, Ds should not be responsible
for remote injuries. (Is this a case where the ps injury is too remote for D
to be held liable?) (Is the ps injury actually foreseeable? Is it too remote?)

Under the new statutory provisions, it is required that the court articulate WHY
the D should or should not be responsible for outcomes that are remote

What is remoteness?
Remoteness is another version of foreseeability.

At the SOC stage we ask (i) was the harm was foreseeable to the
reasonable person; and (ii) how foreseeable was it (probability element of
calculus).

At the causation stage, we ask whether the specific injury incurred was
foreseeable (a narrower analysis).

The modern test for remoteness comes from Wagon Mound No 1 where it
was held that that if the injury or damage actually suffered by the P was
foreseeable as a possible consequence of the Ds negligence, then it is not
too remote.

Wagon Mound No 1 (1961, Privy Council)

While a very particular series of events needed to eventuate in order for

the fire to occur, the test is what is reasonably foreseeable.

The question to be asked is whether it was reasonably foreseeable that a

fire would occur in these circumstances (not whether the precise manner
of events is reasonably foreseeable).

So: when determining what should fall within the Ds scope of liability, one
must account for remoteness and the reasonable foreseeability test. Public
policy dictates that only those harms that are reasonably foreseeable
should fall within the scope of the Ds liability.

Intervening acts / novus actus interveniens

The factual situation most likely to raise questions about scope of liability
are those that involve new intervening acts acts which happen after
the Ds negligence, where the question is whether the subsequent act
should relieve the D of responsibility, even though the but for test is
satisfied.

They have historically been referred to by their Latin name: novus actus
interveniens.

After the D has breached their standard of care, intervening act breaks
chain of causation

The Oropesa (1943)

To break the chain of causation it must be shown that there is something

which I will call ultroneous, something unwarrantable, a new cause which
disturbs the sequence of events, something which can be described as
either unreasonable or extraneous or extrinsic. I doubt whether the law
can stated more precisely than that.

Haber v Walker (1983, FC of Vic SC)

An act or omission is to be regarded as a cause of the harm unless there
intervenes between the act and the harm an occurrence which is necessary for
the production of the harm and is sufficient in law to sever the causal
connectionThe intervening occurrence, if it is to be sufficient to sever the
connection, must ordinarily be either:

Human action that is properly to be regarded as voluntary OR

A causally independent event the conjunction of which with

the wrongful act or omission is by ordinary standards so
extremely unlikely as to be termed a coincidence.

Yates v Jones (1990, NSWCA): Court denied the portion of the Ps claim
that related to her addiction. It characterized the drug dealers conduct
and the Ps own act of injecting the drug and new intervening acts.

Medlin v State Govt Insurance Commission (1995, HCA): the Ps

decision to retire was not entirely voluntary. The fact that P could have
continued at the university, albeit in chronic and sometimes intense pain,
did not defeat his claim for loss of earning capacity.

Mahony v J Kruschich Demolitions (1985, HCA) (2nd dot point..A casually

independent event)

When an injury is exacerbated by medical treatment the exacerbation may

easily be regarded as a foreseeable consequence for which the first
tortfeasor is liable. Provided the P acts reasonably in seeking or accepting
the treatment, negligence in the administration of the treatment need not
be regarded as a novus actus interveniens which relieves the first
tortfeasor of responsibility.

In the ordinary case where efficient medical services are available to the P,
the original injury does not carry the risk of treatment that is inexcusably
bad. In such a case, it is proper to regard the exacerbation of the Ps
condition as resulting solely from the grossly negligent medical treatment
or advice.

So the distinction is between negligent treatment and grossly negligent

treatment. Only the latter breaks the chain of causation.

Chapman v Hearse (1961, HCA)

Hearses negligence was not the sole cause of Dr Cherrys death. It was
insufficient to break the chain of causation because it was reasonably
foreseeable that, as a result of Chapmans negligence, this type of
situation could arise.

So foreseeability is sometimes used as a tool for determining scope of

liability. What is foreseeable marks the limits beyond which a D will not
be held responsible for damage resulting from his or her wrongful act. If
the subsequent event is not foreseeable, it unlikely to be within the Ds
scope of liability.

In modern statutory terms, the question is whether the later event should
eliminate the Ds responsibility for the Ps harm, such that the negligent
partys scope of liability does not extend that far?
****If its foreseeable, then it is likely that it is not an intervening act.

Egg shell skull rule

The D must take the P as he or she finds them.

That is, the D bears the consequences of the P egg shell or thin skull.

But note s 74 of the Wrongs Act: Where mental harm is consequential on

person injury of some other kind, the P is not entitled to recover damages
unless the D foresaw or ought to have foreseen that a person of normal
fortitude might, in the circumstances of the case, suffer a recognized
psychiatric illness if reasonable care were not taken.

If the plaintiff is unusually susceptible to injury, the D is responsible for the harm
even if.

LECTURE 5: DUTY OF CARE I

Overview: In this weeks class, we will explore the first element of the
tort of negligence: duty of care. A plaintiff can only complain of the act
of negligence if the person (or legal entity) who engaged in the
negligent behaviour (the potential defendant) owed the plaintiff a duty
of care. In most cases of foreseeable physical injury or damage
resulting from positive acts on the part of the defendant, a duty of care
will exist. Beyond this straightforward situation, there is significant
disagreement about the correct approach to take. In this class we will
also discuss what types of relationships give rise to a duty to engage in
positive acts for anothers safety (affirmative duties).

Outline
1. The history of the duty of care
2. Reasonable foreseeability
3. Salient features approach/test
4. Affirmative duties to act
5. Misfeasance v nonfeasance
6. Special relationships
7. The duty to prevent others from causing harm

History of duty of care

Heaven v Pender (1883) per Brett MR (who was in the minority):
Whenever one person is by circumstances placed in such a position with regard
to another that every one of ordinary sense would at once recognise that he did
not use ordinary care and skill in his own conduct with regard to those
circumstances he would cause danger of injury to the person or property of the
other, a duty arises to use ordinary care and skill to avoid such danger.

Donoghue v Stevenson (1932, H of Lords)

At present I content myself with pointing out that in English law here must be,
and is, some general conception of relations giving rise to a duty of care, of
which the particular cases found in the books are but instancesThe rule that
you are to love your neighbor becomes in law, you must not injure your
neighbor; and the lawyers question, Who is my neighbour? receives a
restricted reply. You must take reasonable care to avoid acts or omissions which
you can reasonably foresee would be likely to injure your neighbour. Who, then,
in law is my neighbour? The answer seems to be 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.

**A duty of care can arise in any circumstances where the Ds activity
poses a risk to others, whether or not the law has imposed a duty on such
a relationship in the past.
- Australia has failed to produce an all purpose test for duty of care. It is
not a test that is easily applied.

A country without a test

Harriton v Stephens (HCA, 2006) per Kirby J: In Australia, there is no

settled methodology or universal test for determining the existence of a
duty of care such as is provided in most common law countriesThe
inability of this court to agree on a principle of general application is
unfortunate.

Woolcock Street Investments (HCS, 2004) per McHugh: Since 1964,

confusion approaching chaos has reigned in the law of negligence.

Established duties
Harriton v Stephens (2006) per Kirby J:
In practice, the absence of an agreed legal formula has not caused difficulty for
the overwhelming majority of tort actions. Most tort actions fall within a
recognized duty of care categoryIn so far as physical injuries arising from a
positive act are concerned, it is accepted that if the reasonable foreseeability
test is satisfied, the elusive additional component of a duty of care will exist.
*These are the duties that already exist. In most cases, they fall into a
recognized duty of care category. In almost every instance where someone
engages in a positive act i.e driving, conducting an operation, that causes
physical harm, 99% a duty will be found.
Established duties
Established duties include:

Doctor/patient

Lawyer/client

Teacher/student

Manufacturer/consumer

Driver/road user

Commercial advisor/e.g accountant

There is a reasonable foreseeable risk.. If the doctor/lawyer, etc. do not take

care, the patient, etc. will be harmed. What underlies these relationships is the
reasonable foreseeable risk of harm and the D is in the best position to alleviate
it.
A settled methodology
(i) P must show is that he or she is a member of a class of people
neighborwho would foreseeably be at risk of injury if the D failed to take care.
(reasonable foreseeability)
(ii) The court then considers the salient features of the case
The foreseeability funnel: a narrowing concept

Duty of care
Is the P is a member of the class of people who could be harmed by the Ds
actions (E.g roadusers, pedestrians, students.the category of people you
should be thinking about)
Standard of care
(i) was harm to the P foreseeable to the reasonable person;
(ii) how foreseeable was it (probability). (if it is not foreseeable, you might not
need to take action..)
Causation
Was the Ps injury reasonably foreseeable (remoteness in the context of scope
of liability)
Chapman v Hearse (1961, HCA)
It is sufficient in the circumstances of the case to ask whether a consequence of
the same general character as that which followed was reasonably foreseeable
as one not unlikely to follow a collision between two vehicles on a dark wet night
on a busy highwayit is not necessary for the P to show that the precise manner
in which the injuries were sustained was reasonable foreseeable; it is sufficient if
it appears that injury to a class of persons of which he was one might reasonably
have been foreseen as a consequence.

The elusive second element of duty

Reasonable foreseeability is fairly easy to satisfy. So historically there has

been a second element to the test, which acted as a limiting device.

For many years, this second element was proximity (Gala v Preston)
Proximity was the test used for about 30 years, developed in Austalia in
1991 by Justice Dean in Gala v Preston. Proximity test: -need to
demonstrate reasonable foreseeability need to demonstrate the
relationship between P and D was a proximiate/close one.- implied a
degree of closeness i.e physicalCourt tried to create indicators of
closeness. But in 1997, proximity is now abandoned.

But in Hill v Van Arp (1997) a majority of the HCA abandoned proximity as
being insufficiently precise to constitute a useful test.

In 1998, in Pyrenees Shire Council v Day, Kirby J adopted a three part test
from Caparo (UK) that had been followed elsewhere in the world.

In 2001, Caparo is rejected by the HCA.

The salient features approach (multifactorial approach)

The term salient features was first used by Gummow J in Perre v Apand (1999,
HCA):

The question in the present case is whether the salient features of the matter
gIve rise to a duty of careIn determining whether the relationship is so close
that the duty of care arises, attention is to be paid to the particular connections
between the parties. There is no simple formula that can mask the necessity for
examination of the particular facts.
- It is about the relationship between the parties.

What are the salient features?

-No salient feature is more important than another.
No salient feature of the relationship between P and D is supposed to be
regarded as an essential requirement of a duty of care, and there is no
suggestion that certain features should trump others.
However, two salient features have received particular attention in recent years:
the autonomy of the P (P should be able to exercise autonomy, where they are
capable of alleviating the risk, then the D should not be responsible for their
decision not to alleviate it)
and the vulnerability of the P, in the sense of his or her ability to protect against
the harm in question. (reliance by P on the D (where P is heavily reliant on D, D
has control and P is vulnerable.)

Harriton v Stephens
Instruction on the duty issue can be secured from several salient features that
have been identified as potentially relevant to the existence of a duty. In
Sullivan, three particular considerations were identified which will often point
against the existence of a duty: These were (1) that finding a duty would cut
across or undermine other legal rules; (2) that the duty asserted would be
incompatible with another duty; (3) that to recognise a duty would expose
the D to indeterminate liability. Elsewhere, factors capable of supporting a
duty have been identified. These include: (1) vulnerability on the part of the P;
(2) special control (on part of D)l; (3) knowledge possessed by the D about the
circumstances that gave rise to the damage suffered by the P.

Caltex Refineries v Stavar (2009, NSWCA)

(listen again)
(a) the foreseeability of harm;
(b) the nature of the harm alleged;
(c) the degree and nature of control able to be exercised by the defendant to
avoid harm;

(d) the degree of vulnerability of the plaintiff to harm from the defendants
conduct, including the capacity and reasonable expectation of a plaintiff to take
steps to protect itself;
(e) the degree of reliance by the plaintiff upon the defendant;
(f) any assumption of responsibility by the defendant;
(g) the proximity or nearness in a physical, temporal or relational sense of the
plaintiff to the defendant;
(h) the existence or otherwise of a category of relationship between the
defendant and the plaintiff or a person closely connected with the plaintiff;
(i) the nature of the activity undertaken by the defendant;
(j) the nature or the degree of the hazard or danger liable to be caused by the
defendants conduct or the activity or substance controlled by the defendant;
(k) knowledge (either actual or constructive) by the defendant that the conduct
will cause harm to the plaintiff;
(l) any potential indeterminacy of liability;
(m) the nature and consequences of any action that can be taken to avoid the
harm to the plaintiff;
(n) the extent of imposition on the autonomy or freedom of individuals, including
the right to pursue ones own interests;
(o) the existence of conflicting duties arising from other principles of law or
statute;
(p) consistency with the terms, scope and purpose of any statute relevant to the
existence of a duty; and
(q) the desirability of, and in some circumstances, need for conformance and
coherence in the structure and fabric of the common law.
- A duty of care will be imposed when it is reasonable to do so.
Four key points
1. In the vast majority of cases, duty is easily established. The P and D fall within
one of the established categories and the duty is obvious.
2. Where the D physically harms the P, a duty will almost always arise. Harriton:
In so far as physical injuries arising from a positive act (on the part of the D) are
concerned, it is accepted that if the reasonable foreseeability test is satisfied, a
duty of care will generally exist.
3. In the rare situation where your facts do not fit neatly into one of the
established categories or scenarios in which a court has previously found a duty
you must apply the salient features test.
4. While no feature trumps others, two factors often receive greater attention
than others:

the degree and nature of control able to be exercised by the

defendant to avoid harm;

the degree of vulnerability of the plaintiff to harm from the

defendants conduct, including the capacity and reasonable
expectation of a plaintiff to take steps to protect itself (Ps
autonomy).

Affirmative duties: the duty to act

At common law there is no general duty to take positive steps for the
safety of others. The law does not force you to act. ( the law does not
impose for you to take affirmative action).

At the heart of this approach is the difference between misfeasance and

non-feasance.

In general, Ds are only responsible for misfeasance and not non-feasance.

Misfeasance may be described as doing something badly it is the

failure, when acting, to take reasonable precautions against a reasonable
foreseeable risk.

Non-feasance is doing nothing. It does not attract liability because there

is no positive duty on me to act.

Exceptions to the nonfeasance rule

There are two kinds of cases where the law does impose a positive duty to act
(ie, where nonfeasance (failure to act) gives rise to liability)

Where there is a special relationship between the P and D such that

the D is required to take positive action for the Ps safety. (

Where there is a special relationship between the D and a third

party such that the D is required to take positive action to ensure
that the third party does not cause damage to others (a duty to
control others). A duty to control third parties may also arise in the
absence of a special relationship, if the circumstances require
intervention on the part of the D. E.g duty to control ones child

Special relationship between P and D

There are several special relationships that may give rise to a duty to take
positive steps to prevent harm:

The relationship between a teacher and a student

The relationship between a parent and a child [though very limited]

The relationship between a prison authority and a prisoner

The relationship between employer and employee

There are a number of other special relationship that dont fit

neatly into a definable category. Well call these miscellaneous
special relationships.

Teacher/student relationship
Richards v Victoria (1969, FC of Vic SC):
We are of the opinion that it is now clearly established by authority that in
general a schoolteacher owes to each of his/her pupils whilst under his/her
control and supervision a duty to take reasonable care for the safety of the pupil.
It is not, of course, a duty of insurance against harm, but a duty to take
reasonable care to avoid harm being suffered.

***This is a special relationship i.e teacher/student.

What context does the duty exist? Where does the duty begin and end?

Geyer v Downs (1977, HCA): The HCA held that the schools duty to
ensure that the playground was adequately supervised arose when the
school gates were opened, even though that was outside official school
hours.

Trustees of the Roman Catholic Church v Koffman (1996, NSW CA):

held that even though the incident occurred after schools hours and
outside school grounds, the D was liable.

I do not think that the relationship of teacher and pupil begins each day when
the pupil enters the school grounds and terminates when the pupil leaves the
school ground. The extent and nature of the duty of the teacher to the pupil is
dictated by the particular circumstances. I do not think its extent is necessarily
measured or limited by the circumstances that the final bell for the day has rung
and the pupil has walked out the school gate.
Graham v NSW (2001, NSWCA)

The NSWCA distinguished Koffman and held that the school owed no duty
to ensure that the child went home in a bus or taxi.

No doubt the school had a duty to take reasonable steps to protect the
child whilst [she] was at school, and this it apparently did. There may also
have been a duty to inform the Ps parents that neither a taxi nor bus was
running, and this it certainly did. There is no duty, however, to go further
to take precautions to escort a pupil like to the P to her home. Except in
exceptional circumstances the teacher/pupil relationship ceases to exist at
the school boundary.

Parent/child relationship

Parents owe no general duty to their children to take positive steps to

protect them from harm from other sources.

However, parents will often be found to owe a duty to their children where
the parents (positive) actions have created the risk of harm.

Lynch v Lynch (NSW CA, 1991) & Bowditch v McEwan (2003, Qld CA): a
woman owed a duty to her unborn child to drive carefully while pregnant.
This is because the mother is creating the risk of harm when she doesnt
drive safely.

Robertson v Swincer (1989, Full Ct of SC of SA) & Hahn v Conley (1971,

HCA): rejected the idea that a parent is under a duty to protect their child
from harm arising from other sources (eg, a third party driver)

St Marks Orthodox Coptic College v Abraham (2007, NSWCA)

In my opinion, the ratio in Hahn v Conley was that, while the mere existence of a
parent/child relationship does not bring about a duty of care on the part of a
parent towards a child, the circumstances of a particular situation may give rise
to a duty...Australian law does not recognise any principle of parental immunity
in tort. In any event, in this case, [the father] did perform a positive act, namely
he took Christopher [the P] to school and dropped him off there at a time when,
to Mr As knowledge, the supervision at the College was inadequate.
Prison authority/prisoner relationship
The duty is explained in Howard v Jarvis (1958, HCA): We feel no doubt that [the
jailer] was subject to a duty at common law to exercise reasonable care for the
safety of [the prisoner] during his detention in custody.
NSW v Budjoso: It is true that a prison authority, as with any other authority, is
under no greater duty than to take reasonable care. But the content of the duty
in relation to a prison and its inmates is obviously different from what it is in the
general law-abiding communityIn a prison, the prison authority is charged with
the custody and care of persons involuntarily held there. Violence is, to a lesser
or greater extent, often on the cards. No one except the prison authority can
protect a target from the violence of other inmates.
The positive steps required to provide reasonable care is different in a different
setting i.e school vs prison. Duty is found, duty requires to take reasonable care.
Employer/employee relationship
The relationship of employer and employee is another special relationship that
gives rise to a duty of affirmative action. The employer owes a duty to take
reasonable steps to protect the employee from harm, caused by others. This
duty may also extend to relationships that are similar in nature to
employer/employee. E.g third parties
English v Rogers: The relationship between the Hotel and the cleaners wasso
closely analogous to that of an employer, at least as regards safety in the
workplace, as to generate a duty of care that was not trumped by [the assertion

that such a duty only arises in relation to a strict employer/employee

relationship.
There is a duty to protect against violence in the workplace on the part of the
employer.

Miscellaneous special relationships (or not)

1. Doctor/non-patient relationship gives rise to a duty of care (Lowns v
Woods (1996, NSWCA) & BT v Oei (1999, NSWSC))
2. CAL v Motor Accidents Insurance Board (2009, HCA): there is no special
relationship between owners/operators of licensed venues and patrons.
(NOT SUCCEEDED)
Licensees in Australia, while bound by statutory rules with
regard to the
service of alcohol, owe no general duty at
common law to customers which
requires them to monitor and minimise the service of alcohol or to protect
customers
from the consequences of the alcohol they choose to
consumeThe fact that legislations compels
publicans not to
serve customers who are apparently drunk does not
make the
introduction of a civil duty of care workable or
attractive.

Duty to prevent another from causing damage or loss to the plaintiff

The second situation where the law imposes a positive duty to act and where
nonfeasance (failure to act) gives rise to liability is where:
there is a special relationship between the D and a
third party such that
the D is required to take positive action to ensure that the third party does
not
cause damage to others (a duty to control others). A duty to control third parties
may also arise
in the absence of a special relationship, if the
circumstances require intervention on the part of
the D.
This category is often referred to as a duty to control third parties.
Smith v Leurs (1945, HCA)
It is exceptional to find in the law a duty to control anothers action to prevent
harm to strangers. The general rule is that one man [sic] is under no duty of
controlling another man to prevent his doing damage to a third. There are,
however, special relations which are the source of a duty of this nature. It
appears now to be recognized that it is incumbent upon a parent who maintains
control over a young child to take reasonable care so to exercise that control as
to avoid conduct on his part exposing the person or property of other to
unreasonable danger.
NSW v Godfrey (2004, NSWCA)

There is no authority which recognizes a duty of care to the public at large,

beyond the immediate vicinity of the gaol from which an escape
occurred.Therefore the duty arises only where control is capable of being
reasserted by the persons who should have prevented the escape. No such duty
has ever been found to encompass conduct hundreds of kilometres from, and
months after, an escape.
Cf Modbury Triangle Shopping Centre v Anzil (2000, HCA)

Modbury Triangle Shopping Centre v Anzil (2000, HCA)

The unpredictability of criminal behavior is one of the reasons why, as a general
rule, and in the absence of some special relationship, the law does not impose a
duty to prevent harm to another from the criminal conduct of a third party, even
if the risk of harm is foreseeable. However, there may be circumstances in which,
not only is there a foreseeable risk of harm from criminal conduct by a third
party, but, in addition, the criminal conduct is attended by such a high degree of
foreseeability, and predictability, that it is possible to argue that the case would
be taken out of the operation of the general principle and the law may impose a
duty to take reasonable steps to prevent it.

LECTURE 6: DUTY OF CARE II (Negligent misstatement

and negligently causing mental harm)
Overview: In this weeks class, we will continue our discussion of duty of care,
focusing on negligent acts causing purely economic loss, negligence causing
mental harm, and affirmative duties. While all discussions of duty involve an
application of the general rules, additional rules have emerged to clarify the
duty owed in particular fact situations.

General duty test

Most cases fit within established duties (eg, doctor/patient, lawyer/client)
Where the relationship between the parties does not fall within an
established duty, apply the settle methodology:
Reasonable foreseeability: the P must show is that s/he is one of the
class of people who would foreseeably be at risk of injury if the D
failed to take reasonable care.
The salient features test: consists of numerous factors that must
be weighed up to determine whether a duty should be owed, with a
particular focus on the Ps vulnerability and the Ds level of control
or supervision.

Affirmative duties
In general the law does not impose an affirmative duty to act (eg, no duty
to rescue)
However, we discussed some scenarios where an affirmative duty may
arise:
Where there is a special relationship between the parties (eg,
employer/employee; student/teacher)
The duty to prevent others (third parties) from causing harm

Today
In this class, we will talk about two controversial areas of duty that have
attracted very specific analysis by the courts:
A duty not to cause purely economic (as opposed to physical) loss
A duty not to cause mental harm (third party witnessing accident?)
Outline
1. Introduction to pure economic loss (no physical component)
2. Liability for negligent misstatements causing pure economic loss
3. Liability for negligent acts causing purely economic loss
4. Negligently causing mental harm
Introduction: pure economic loss
In some discrete circumstances, negligence law permits liability for cases
which result in purely economic loss to the P.
A purely economic loss is one that does not arise from damage to the Ps
own property or person.
Historically negligence law has been reluctant to compensate for purely
economic loss.
Why? Because economic losses can be easily passed from one person to
another in a way that personal injuries cannot.

Liability for pure economic loss

In 1964, the House of Lords decision in Hedley Byrne v Heller (UK)
permitted recovery for purely economic loss cause by negligent
misstatements/acts
In 1976, in Caltex v The Dredge Willemstad the High Court permitted
recovery for purely economic loss caused by negligent acts.

 In both cases, the courts sought to develop restrictive principles that

would enable recovery for some, but not all, of those who suffered purely
economic loss.

Negligent misstatements causing pure economic loss

Negligent misstatement: something that is said or written and it can be
contained in directed advice; information or advice that is provided and relied
upon by plaintiff to act
Hedley Byrne v Heller [1964, House of Lords]:
If in a sphere in which a person is so placed that
others could reasonably rely upon his [sic] judgment or his skill or upon his
ability to make careful inquiry, a person takes it upon himself to give information
or advice to, or allows his information or advice to be passed on to another
person who, as he knows or should no, will place reliance upon it, then a duty of
care will arise.
***Duty of care can arise in a case of pure economic loss as a result of a
negligent misstatement. However, a duty will not arise if there is a disclaimer.

Mutual Life and Citizens Assurance Co v Evatt (1968, HCA)

Hedley Byrne was adopted by Australian law in Mutual Life and Citizens
Assurance Co v Evatt
The factors that should guide decision-making are:
Reliance and reasonable reliance
Special skill (of the D)
Request by the P for information
Financial interest (on the part of the D) (it is more likely that a duty
is owed)
Disclaimers and assumptions of responsibility
To whom is the duty owed (is the P the immediate recipient of the
misstatement)
These factors do not form a test, rather they are things you must consider in
your discussion.
Reasonable reliance
General principle: The P must have relied on the Ds misstatement for
there to be negligence and that reliance must be reasonable.

 Evatt: The speaker (D) must realizethat the recipient intends to act
upon the information or adviceOf course, utterances in the course of
social intercourse with no thought of legal consequences could not satisfy
such a condition. Furtherthe circumstances must be such that it is
reasonable for the recipient to seek, or to accept, and to rely upon the
utterance of the speaker. The nature of the subject matter, the occasion of
the interchange, and the identity and relative position of the parties and
relevant capacity to form or exercise judgment will all be included in the
factors which will determine the reasonableness of the acceptance of, and
of the reliance by the recipient upon, the words of the speaker.
Case: Tepko v Water Board (2001, HCA)
-It was not reasonable for the P to rely on the ball park figure to meet the
Banks demand for a costings estimate.

The relationship between the Board and the P was one in which the
Board was a reluctant participant; the Board did not wish to give the P
information and resisted giving it for some time.
The P had access to expert advice.
It was a provisional estimate and it was unreasonable for the P to rely
on it in his dealings with the bank.

Reasonable reliance case law

Mohr v Cleaver (1986, Full Ct WA): D (accountant) giving
investment advice over the phone in response to P asking for an off
the cuff opinion.
Decision: The Full Court of the SC in WA held that an accountant did
not owe a duty to take reasonable care in giving investment advice
over the phone because the recipients of the advice had merely
asked for an off the cuff opinion and had not made it clear that
they were seeking considered advice. In the circumstances, the P
had not acted reasonably in relying on the advice.

On the other hand, in some cases, the reasonableness of the Ps reliance is so

obvious that it may be assumed.
Cf Pullen v Gutterridge Haskins & Davey (1993, Full Ct Vic): in the
case of an established client/professional relationship, that reliance
is reasonable can be assumed.
(where the D is a professional person and the P is the Ds client, it is
not necessary to plead and give reliance in order to establish the
requisite relationship to give rise to a duty of care.
***Basically if there is an established relationship, reasonable
reliance is assumed.

** Reasonable reliance is an essential element that must be demonstrated.

Special skill
General rule: If the D is, or professes to be, an expert in the field in which
she or he is giving information or advice, and the P is not, then there are
strong grounds for saying that it would be reasonable for the P to rely on
the Ds expertise rather than trusting his or her own judgment
A special skill on the part of the D is regarded as relevant to the question
of duty of care and often comes up in the context of reasonable reliance.

History of special skill

In Evatt, the Privy Council held that a duty is not owed by D to P if the D
doesnt have the special skill required to be giving the advice.
The effect of the decision in Evatt was that liability for negligent
misstatements was confined to those who were in the business of giving
information or advice. This was an unpopular conclusion as it seemed to
let a lot of Ds off the hook for bad advice.

Shaddock v Paramatta City Council (No 1) (1981, HCA)

Shaddock represents the Australian position and Evatt should not be followed.
Special skill on the part of the D is not a requirement in itself, but is
merely a factor affecting the question of reasonable reliance.
So the presence of a special skill increases the likelihood that reliance is
reasonable, but it is not necessary that the D have a special skill.
So special skill should not be treated as a stand alone factor, but rather a
question that is relevant to reasonable reliance. If the D has a special skill,
it makes it more likely that the Ps reliance was reasonable.

Request
General rule: While the P will usually have requested the information from
the D, the existence of a request is neither necessary nor sufficient for a
duty of care to arise.
San Sebastian v Minister Administering the Environmental Planning and
Assessment Act (HCA): the existence of a request is by no means
essential, but instances of liability for misstatement volunteered

negligently will be rare. (So in other words, if D proffers the info absent
of request from P, it is highly unlike that liability/duty will be found)
Cf Mbakew v Sakris (2009, NSWCA): the advice was volunteered by the
financial adviser, but Court held that the Ds position as the Ps financial
adviser and their continuing relationship led to the conclusion that the D
owed a duty in relation to the volunteered advice.
Financial interest
General rule: It is often suggested that if the D stands to gain financially if
the P relies on the statement, that is sufficient in itself to give rise to a
duty of care.
Eg, Presser v Caldwell Estates (1971, NSW SC): There may be
circumstances in which the existence of a financial interest in the adviser
may supply an element which will result in the imposition of a duty to take
care where, but for that interest, no such duty would be imposed.
( A financial interest alone can produce a duty but no single case since
1971 has met that criteria).
There is, however, no reported case where the existence of a financial gain
to the D has been sufficient in itself to give rise to a duty.

Disclaimers: Derring Lane v Fitzgibbon

Disclaimer may have no effect if every other aspect of the case points to a duty
being owed.
Disclaimer: This valuation is for the use of the party to whom it is addressed.
No responsibility is accepted to any third party who may use or rely on the whole
or any part of the content of this valuation.
Held: The disclaimer did not operate to negate the duty of care. All of the
circumstances of the case must be considered.
The second part of the disclaimer should not be understood to exclude
responsibility for damage resulting to the P by the very use of the
valuation by the vendor for which the D had impliedly accepted
responsibility in the first part of the clause.
-where the D knows that the P will be relying on the advice and the D is
the only possible source of info, it is unlikely the disclaimer will stand up In
court.

To whom is the duty owed

San Sebastian v Minister Administering the Environmental Planning &

Assessment Act (1986, HCA): It is necessary not only that A intends that B or
members of a class of persons should act or refrain from acting in a particular
way, but also that A makes the statement with the intention of inducing B or
members of that class, in reliance on that statement to act or refrain from acting
in the particular way, in circumstances where A should realize that economic loss
may be suffered if the statement is not true.
-where P is not immediate recipient of the adviceP can give out advice to all
sorts of people.
-D and P had no relationship where D provides advice that P requests..
-there is no request or inducement

Esanda Finance Corp v Peat Marwick Hungerfords (1997, HCA)

While the judgments in Esanda are not consistent, the court considers all
of the factors to conclude that it is rare that a D will owe a duty to a P who
is not the immediate recipient of the advice/information and has therefore
not be induced by it.
Howeverif the D knows with sufficient certainty that a particular third
party will be affected by its statements, then it matters less that the P was
not the immediate recipient of the information.
If the information is prepared by D knowing it will be used by someone else,
other than the direct recipient, then a duty is more likely to arise. If the info is
prepared with no knowledge of which third party might use it, then it is highly
unlikely that anybody but the immediate recipient is owed a duty.

Liability for negligent acts causing purely economic loss

Caltex Oil v The Dredge Willemstad (1976, HCA): [I]t is still right to say that as
a general rule damages are not recoverable for economic loss which is not
consequential upon injury to the Ps person or property. The fact that the loss
was foreseeable is not enough to make it recoverable. However, there are
exceptional cases in which the D has knowledge or means of knowledge that the
P individually, and not merely as a member of an unascertained class, will be
likely to suffer economic loss as a consequence of his negligence, and owes the P
a duty to take care not to cause him such damage by his negligent act.

(you need to have direct knowledge on the part of D about the individual P..You
need to be able to specifically identify the PAny decision in this area must
depend on policy considerations)
Perre v Apand P/L (1999, HCA)

Three key elements of Perre:

All of the judges emphasized that the class of affected Ps was of a
determinate size and readily ascertainable.
All of the judges emphasized the Ps vulnerability, in the sense of

their inability to do anything to protect themselves from the harm

that befell them (not merely the Ps susceptibility to loss as a result
of the defendants conduct.
Butthe law of Torts should be reluctant to unduly interfere with a
Ds ordinary business activity.
A plaintiff can recover her purely economic loss as result of negligent acts but
there are a number of control mechanisms designed to avoid indeterminate
liability. Key to that is being able to ascertain an identifiable P and to draw a line
around them. There is no single test to determine when a duty is owed but the
more vulnerable the P, the better, in particular if the P is unable to do anything
to protect themselves.

Negligently caused purely mental harm

Early cases involved Ps who witnessed the immediate aftermath of an accident
involving a loved one (caused by the Ds negligence) and suffered shock
(psychological harm) as a result (eg Jaensch v Coffey, HCA 1985).
Mere grief and sorrow was not enough. (usualy diagnosable mental
illness)
As Brennan J described in Jaensch v Coffey:
I understand shock in this context to mean the sudden sensory perception
that is by seeing, hearing or touching of a person, thing or event, which is
distressing that the perception of the phenomenon affronts or insults the Ps mind
and causes a recognizable physical illness.

Tame v NSW; Annetts v Australian Stations (2002, HCA)

Liability for damages for psychiatric harm is not limited to cases where that harm
is caused by a sudden shock arising as a result of direct perception of a
distressing event or its immediate aftermath.
The judges did not agree on whether normal [mental] fortitude of the P was
required, but several noted that normal fortitude is a convenient method by
which to determine whether a risk of psychiatric harm is reasonably foreseeable.
If the risk was reasonably foreseeable then that probably answers the normal
fortitude question.
Mental harm under the Wrongs Act

Section 67 of the Victorian Wrongs Act distinguishes between consequential

mental harm and pure mental harm.
Consequential harm: mental harm that is consequential on personal
injury of some other kind (ie, mental harm flows from the physical harm)
Pure mental harm: mental harm that is not consequential on other
personal injury (stand alone mental harm)

Role of foreseeability
For both types of mental harm, the D only owes a duty of care to the P if she or
he foresaw or ought to have foreseen that a person of normal fortitude
might, in the circumstances of the case, suffer a recognized psychiatric
illness if reasonable care were not taken. (ss 72(1) pure mental harm; s
74(1)(a) - consequential mental harm)

Consequential mental harm

When considering whether a person of normal fortitude would suffer a
recognized illness in cases of consequential mental harm, the court
must consider the nature of the bodily injury out of which the mental
harm arose.
Thus if the P suffers a dramatic psychological consequence as a result of a
relatively minor injury, the ct may conclude that the D owed no duty for
the consequential mental harm (Bartolone v Jeckovich).

Pure mental harm

S 72(2): In cases of pure mental harm, the court must have regard to the
following factors in determining whether a person of normal fortitude would
suffer a recognized psychiatric illness in the circumstances:
(a)
whether or not the mental harm was suffered as the result of
a sudden shock;
(b)
whether the plaintiff witnessed, at the scene, a person being
killed, injured or put in danger;
(c)
the nature of the relationship between the plaintiff and any
person killed, injured or put in danger;
(d)
whether or not there was a pre-existing relationship between
the plaintiff and the defendant.

 Wicks v State Rail Authority of NSW (2010, HCA)

Wrongs Act should be understood in light of the common law;
foreseeability remains an important factor.
The statutory factors are no more than that factors to be considered.
None are determinative of the outcome and they are not requirements for
the existence of a duty of care.
The factors do not exclude cases where the P does not witness the
accident or where the psychiatric illness is not sudden.
However, one new effect of the legislation is that a duty of care is not to
be found unless the D ought to have foreseen that a person of normal
fortitude might, in the circumstances of the case, suffer a recognized
psychiatric illness.

Summary
A Plaintiff can recover for pure mental harm in Australia.
Under common law, the cases tend to turn on the foreseeability of
the mental harm.
Under statute, this approach is largely maintained, but in cases of
pure mental harm analysis is guided by a factors that must be
considered by the court, none of which are determinative.
Note: if P suffers pure mental harm in connection with another
person (the victim) being killed, injured or put in peril by the Ds
negligence, damages are limited to situations where the P
witnessed the scene or the P is in a close relationship with the
victim.

________________________________________________________

Lecture 7: Defences
Overview: In this weeks class, we consider two related topics. First we will
discuss the defence of contributory negligence, which can be relied on by the
defendant to argue that the plaintiff bore some responsibility for the harm she
suffered. If contributory negligence is made out, liability is apportioned between
the plaintiff and defendant (eg, plaintiff bears 40% responsibility for harm,
defendant bears 60% responsibility). The second half of the class will
consider defences more broadly, with a focus on voluntary assumption of risk
and illegality. If the defendant is able successfully raise a defence, she or he will
be relieved of liability.

Structure
Introduction to defences

2. Contributory negligence
SOC
Causation
Apportionment
Intoxication and CN
3. Voluntary assumption of risk
4. Illegality
5. Immunity from liability

Contributory negligence

If the P fails to take reasonable care for his/her own safety, then s/he
might also be negligent. In such a case, the P is said to be guilty of
contributory negligence.

Degrees of liability are addressed through apportionment

legislation in each state. In Victoria, apportionment is addressed in
the Wrongs Act, s 26(1).
E.g D is 80% responsible, P is 20% responsible.

Apportionment legislation allows the court to apportion liability in a

way that is just and equitable between P and D. Apport
- Even though D is liable and P has examined 3 elements of
negligent, court can conclude D is 100% liable.

What constitutes contributory negligence?

Contributory negligence is a failure by the P to take reasonable care for
his or her own safety.

CN mirrors the negligence flowchat, absent duty (Davies v Swan

Motor Co).

What the D must determine is: (a) that the P fell below the requisite
SOC; and (b) that the Ps breach of the SOC causally contributed to
his or her injuries.

-Did the P breach the standard of care?

CN & SOC

Joslyn v Berryman (HCA, 2003);

The test of contributory negligence is an objective one.

Contributory negligence, like negligence, eliminates the
personal equation and is independent of the idiosyncrasies of
the particular person whose conduct is in question.

So for CN, the SOC is an objective standard (ie, the reasonable

person/plaintiff).

The P is held to the same standard as a D.

Section 62: the SOC required of the P is that of the reasonable

person in their position; the matter is to be determined on the basis
of what the P knew or ought to have known at the time.

Consolidated Broken Hill v Edwards (2005, NSWCA): Individuals (Ps)

should care for themselves as much as they expect others to care
for them the fundamental notion is that people should take
responsibility for their own lives and safety.

Perrett v Sydney Harbour Foreshore Authority (2009, NSW SC): The

task is to consider whether the P contributed to this fall by failing to
take care of himself against the measure of a reasonable person in
his position. The test directs attention to the SOC required of a
reasonable person in the position of the P, on the basis of what he
knew or ought to have known at the time.

Special standard?

There are some groups who may attract a different standard. These
groups include:

Children

Intellectually impaired and physical disabled persons

Employees and employment contexts

Emergency or agony of the moment contexts

CN & children
Kelly v Bega Valley County Council (NSWCA, 1982)
The conduct of a particular infant P charged with CN is to be measured
according to the hypothetical conduct of an infant of the same age. Since

the measure is objective and not subjective, references to the intelligence,

experience and development of the child are to be treated as allusions to
the notional levels of intelligence, experience and development which a
child of that age could be expected to have attained.
Did the P child contribute to their own harm? We apply the same
approach, we measure the child according to their age and stage of
development. Children are not immune from CN.

Intellectually impaired and physical disabled persons

Russell v Rail Infrastructure Corp (2007, NSW SC): While an

intellectual disability is idiosyncratic in a way that childhood isnt, it
is a condition capable of assessment by standarised measures. One
can posit an objective standard to which a person posses of mild or
moderate or profound intellectual handicap.

Cf Town of Port Hedland v Hodder (WA CA, 2012): The majority

held that a Ps physical disabilities should not be taken into account
when determining if he was CN.

At common law, the Ps conduct in diving into the pool when he

could not see the depth of the water below him, was to be judge
according to the objective standard. The fact that he did not
subjectively appreciate the risk of the activity he was undertaking
does not lead to an attenuated SOC in this case.

Employees and employment contexts

General rule: when considering whether an employee is guilty of CN

where the employer has failed to provide a safe workplace or
system of work, courts at common law have taken into account the
fact that the employees conduct takes place in a situation of risk
created by the employers negligence. (Mclean v Tedman (1984,
HCA))

Generally speaking, courts are less demanding of Ps in their

assessment of CN at work. The standard of care is easier to meet ( it
is a lowered standard).

If the employer has created an unsafe workplace, the SOC

expected of Ps is lowered (McLean v Tedman).

Even if the P knows the work is dangerous, if they believe that

their employment requires them to undertake the dangerous

tasks then they will not be found CN (Fennell v Supervision &

Engineering Services Holdings; Coca-Cola v Petineris)

When Ps are engaged in repetitive work to which the P had

become habituated and less care is taken, the Ps conduct is
put down to mere inadvertence and inattention and is rarely
treated as CN (Commissioner of Railways v Ruprecht, 1979
HCA)

However, if the Ps inadvertence or inattention is not

attributable to something the D has done or the nature of the
Ps employment, then it probably does constitute CN
(Ruprecht).

Emergency or agony of the moment cases

Shelley v Szelley (1971, SA FC of SC): The conduct of the party acting in an
emergency may be viewed with more latitudeit is not in the mouth of those
who have created the danger to be minutely critical of what is done by those
whom they have by their fault involved in danger.

CN & Causation

To demonstrate CN, the P must not only prove that the P failed to
take reasonable care for his or her own safety, but also that the Ps
negligence causally contributed to his or her injuries.

Causation in the CN context is usually determined by using ordinary

causation principles that are relevant to a Ds negligence (i)
factual causation; and (ii) scope of liability.

A failure to engage some precaution on the part of P, that increases their

injury is CN.
Question: It is not what causes the accident but what causes the
damage.
In Vic, if you fail to wear a seatbelt and an accident occurs, the liability is
15%.
How does apportionment operate?

Pennington v Norris (1956, HCA): What has to be done is to arrive

at a just and equitable apportionment between the P and D of the
responsibility for the damage. It seems clear that this must of
necessity involve a comparison of culpability. By culpability we do

not mean moral blameworthiness but degree of departure from the

SOC of the reasonable [person].

Podrebersek v Australian Iron & Steel (1985, HCA): clarified that

there are two factors to be considered when determining
apportionment:

The degree of departure from the SOC expected of a

reasonable person in the circumstances; and

The relative causal potency of the respective failures (ie, how

much of the harm was caused by each of the P and D).

Intoxication & CN: Joslyn v Berryman (2003, HCA):

The court can consider events leading up to the accident to

determine CN (ie, Berrymans observations of the D)

The intoxicated P is held to the reasonable person standard. The

question is not whether a reasonable intoxicated person would have
observed the Ds state and understood the risk of injury. Rather, the
test is what the reasonable person would have foreseen with regard
to the risk of accepting a ride with an intoxicated driver.

If a reasonable person would know that s/he was exposed to a risk

of injury in accepting a lift from the intoxicated driver, an intoxicated
passenger who is sober enough to enter the car voluntarily is guilty
of CN.

Voluntary assumption of risk volenti non fit injuria

General rule: the D can prove that the P voluntarily assumed the
risk of being injured as a result of the Ds negligence, then the D is
not liable for all of the Ps injuries.

In other words, it is a complete defence. The D walks away with no

responsibility at all. (there is no degree of apportionment)

VAR TEST
There are three factors that need to be satisfied to make out the
defence (Scanlon v American Cigarette Co (1987, Vic SC)

The P knew the facts constituting the risk or danger

The P appreciated or understood the risk

The P freely and willingly consented to the danger or risk. This factor
can be inferred from the Ps conduct, though courts are cautious.

Case: Smith v Baker & Sons (1891, H of L)

The H of Lords held that the mere fact that the P continued
employment with full knowledge and understanding of the danger did
not constitute free and willing consent.

In order to defeat the Ps right to damages by the application of

VAR the jury ought to be able to affirm that he consented to the
particular thing being done which would involved that risk, and
consented to take that risk upon himself.
-It is extremely rare for VAR to succeed in employer/employee
relationship. In NSW, this defence has been abolished.
Case:

Rootes v Shelton (1967, HCA)

To say that the P voluntarily assumed the risk of colliding with an

obstruction in the water is one thing. To say that the P voluntarily
undertook the risk that the D would carelessly fail to warn him of the
presence of such an obstruction or would fail to exercise due care in
steering the boat of which he had control is a very different
proposition and one for which I can find no support in the evidence.

VAR and intoxication

Insurance Commissioner v Joyce (1948, HCA): Common sense
tells us that the probability is that the passenger quite well knew that
the driver was unfit for the taskif the P had enough consciousness to
be aware of what he is doing (ie, getting into a car with a drunk driver)
then why should a judge hesitate to find against him?
OShea v Permanent Trustee (1971, Qld): both P and D were drunk
when they got into the car. However, although the P knew the D had been
drinking, they had not been together throughout the evening, and P did
not know how much the D had drunk. Thus, while the P knew that alcohol
had been consumed, he did not fully appreciate the risk.

Assumption of obvious risks: under Wrongs Act

Section 54(1):

If, in a proceeding on a claim for damages for negligence, a

defence of voluntary assumption of riskis raised and the risk
of harm is an obvious risk, the person who suffered harm is
presumed to have been aware of the risk, unless the person
proves on the balance of probabilities that the person was not
aware of the risk.
(1) [An] obvious risk to a person who suffers harm is a risk
that, in the circumstances, would have been obvious to a
reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of

common knowledge.

(3) A risk of something occurring can be an obvious risk even

though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition
or circumstance that gives rise to the risk) is not prominent,
conspicuous or physically observable.

(5) To remove any doubt, it is declared that a risk from a thing,

including a living thing, is not an obvious risk if the risk is
created because of a failure on the part of a person to
properly operate, maintain, replace, prepare or care for the
thing, unless the failure itself is an obvious risk.

Doubleday v Kelly (2005, NSWCA) & obvious risk

The statutory test is an objective one was the risk an obvious one to the
reasonable person in the circumstances of the case and the
subjective characteristics of the P are relevant to that latter part of the
sentence.
Matters such as the age, experience and personal characteristics of
the person are to be taken into account in assessing what would be
an obvious risk to the reasonable person in the position of the P.

Queensland v Kelly???????

Illegality (ex torpe- is not a defence)

Under the Wrongs Act, the court is directed to consider the Ps

illegal conduct when determining whether or not the D has breached
her or his duty of care (s 14G(2)(b)).

The does not prescribe HOW the Ps illegality should affect the Ps
claim, allowing the ct to retain its discretion in that regard.

So illegality is not strictly a defence under the Victorian statute it

is addressed at the SOC stage.

Second, it is often the case that where the P has engaged in illegal
conduct there are also issues of CN, so it likely that damages will be
reduced in some way or another in most of these cases, even if the
illegality of the Ps conduct has little impact.

Illegality will have effect on outcome for Plaintiff through using

contributory negligence. If you can demonstrate Ps conduct
casually contributed to harm, then you are going to have a finding
of CN.

Illegality doesnt automatically preclude plaintiff from succeeding at

common law.
-Most states prescribe ways in which illegality is to be dealt with by
courts.

Joint illegal enterprise: Gala v Preston (1991, HCA)

The joint criminal activity involving the theft of the car and its illegal use
in the course of a spontaneously planned joy ridegave rise to the only
relevant relationship between the parties and constituted the whole
context of the accident. The criminal activity was, of its nature, fraught
with serious risks.

However the court also stated:

There is no reason why the illegality of a particular enterprise or
activity should automatically negate the existence of a duty of care
which might otherwise arise from the relationship which subsist
between the parties
Cf Miller v Miller (2011)
The fact that the P and D were both acting illegally when the P suffered
injuries of which the Ds negligence was a cause and which would not have
been suffered but for the Ps participation in the illegal act is not
determinative. However, there are cases where the parties joint
participation in illegal conduct should preclude a P recovering damages for
negligence from the D. Different bases have been said to found the denial
of recovery in some, but not all, cases of joint illegal enterprise (eg, no
duty owed, a SOC should not be fixed, the P assumed the risk). The
different bases for denial of liability rest of a policy judgment.


- Joint illegal enterprise is not a defence (especially in Vic, where
illegality is considered at the SOC stage)
- Joint illegality cases are usually factual scenarios that will also give
rise to CN and possibly, voluntary assumption of risk. (there are
usually other ways in which to penalise a plaintiff for engaging in
illegal conduct)
- Joint illegal enterprise should affect plaintiffs success but might be
done in a variety of different ways. None of which constitutes a
defence on its own.
Illegality may play a role in CN or in VAR.In Vic, under the statute,
the defendants SOC is lowered in cases where illegality is involved
but it is not a defence.
(In other states, illegality is a defence)
Immunity from liability: Good Samaritans
Wrongs Act, s 31B: Good Samaritans are protected from civil suit in all
jurisdictions provided the assistance is:

Provided in good faith; and

Without payment or expectation of payment
Includes advice provided over the telephone
Immunity will not apply if the act or omission that causes harm is
given before advice, assistance or care was provided by the good
Samaritan.

(refer to page 534 of textbook)

Immunity from liability: volunteers
Volunteers are protected from immunity in Victoria if they are providing
service for a community group or charity in good faith (ss 35-37)

Immunity does not apply if:

a member of the CFA or SES (s 35(3))
if the act was outside the scope of the organization or contrary
to instructions (s 38 (1)(a))
if the volunteer is impaired by alcohol or drugs taken
voluntarily (s 38 (1)(b))
it is a defamation action (s 38(2)(a))
it is a transport accident(s 38 (2)(b)

Lecture 8: Vicarious liability & breach of statutory duty

Overview: In this class we will discuss two topics: breach of statutory duty and
vicarious liability. In many personal injury cases, an allegation of breach of
statutory duty is made at the same time as an allegation for common law
negligence. Many statutes impose duties, particularly duties with respect to
safety. Some, though not all, of these statutes confer on the plaintiff a right to
sue. Such an action is described as an action for breach of statutory duty. The
second topic we will discuss vicarious liability involves the shifting of the
burden of compensating the plaintiff to a defendant who was not personally at
fault, usually because the second defendant has deeper pockets. The most
common example is the vicarious liability of an employer for the negligent acts
of their employee, provided the employee was acting with the scope of
employment.
Structure:
1. Vicarious liability

Employer/employee relationship

Acting in the course of employment

2. Breach of statutory duty (may be pursued in lieu or at the same time as

a negligence action)

Vicarious liability
Vicarious liability is where a third party bears responsibility for the
negligence of the D. (Third party- usually defendants employer)
It is settled law that employers are vicariously liable for torts
committed by their employees in the course of their employment.
(loss-distribution mechanism (distribute loss to the party with the
deeper pocket, being the employer)

VL doesnt require that the P show any negligence on the part of the
employer. In other words it is a species of strict liability:
VL is not premised on any culpable act of omission on the
part of the employer; an employer who is not personally at
fault is made legally answerable for the fault of his/her
employee. It is best understood as a loss-distribution device.
(Lister v Hesley Hall (2002, H of L).

Establishing VL
There are two elements that must be demonstrated:
The existence of an employer/employee relationship

 That the employee was acting in the course of employment

Employer/employee relationship
Courts have attempted to develop a test that would guide decisionmaking in this area. Historically, this test hinged on the employers right
to control the employee (Zujis v Wirth Bros (1955, HCA)

If the employer has the right to control the work of the employee,
then the relationship was one of employment and VL applied.

The test has been modified in recent years as the control test
became more difficult to apply.
(Look in textbook for example of taxi driver vs chauffeur)

The control test: Stevens v Brodribb Sawmilling Co

In many, if not most cases, it is still appropriate to apply the control
testbecause it remains the surest guide to whether a person is
contracting independently or serving as an employee. However, that is
not now sufficient or even an appropriate test in its traditional form in
all cases because in modern conditions a person may exercise personal
skills so as to prevent control over the manner of doing his/her work
and yet nevertheless be a servant (employee). (you might actually
exhibit quite a lot of independence in your job, but you still are an
employee.)
Control factors I
The following factors support the conclusion that there is an employment
relationship:
The right of the employer to have a particular person do the
work
The right to suspend or dismiss the person engaged
The right to the exclusive services of the person engaged
The right to dictate the pace of work, hours of work and the
like.

Control factors II

The following factors support the conclusion that there is NOT an

employment relationship:

The provision by the person of his or her own place of work or his or
her own equipment

The creation of goodwill (has a business reputation within the

industry) or saleable assets in the course of his/her work

The payment by the person from his/her remuneration of business

expenses of any significant proportion

The payment to the person of remuneration without the deduction

of income tax (you do your own taxes)

Stevens v Brodribb Sawmilling Co

However, none of these [control factors] leads to any necessary

inference and the actual terms and terminology of the contract will
always be of considerable importance. Having said that, any
attempt to list the relevant matters, however incompletely, may
mislead because they can be no more than a guide to the existence
of the relationship of master and servant. The ultimate question will
always be whether a person is acting as the servant of another or on
his or her own behalf and the answer to that question may be
indicated in ways which are not always the same and which do not
always have the same significance.
Bazley v Curry (Canadian Sup Ct) (enterprise risk test)
McLachlin CJ held that where the employees conduct is so closely
tied to a risk that the employers enterprise has placed in the
community, the employer may justly be held VL for the employees
wrongdoing. (where the risk of negligence has been created by the
employer through their own enterprise/business/institution etc. then
the employer should be responsible if some of the risks eventuate)
E.g The employer creates the risk by bringing adults and vulnerable
children in the same space where the adults are engaged in intimate
careThe enterprise risk is; looking after small children is
dangerouswhere entering a dangerous enterprise, you should be
responsible for harms that flow..(if the risk comes into fruition).

This has been adopted in other CL jurisdictions, including Australia,

and is known as the enterprise risk test. (control factors should
also be recognised as well)

Hollis v Vabu (Crisis Couriers) (2001, HCA)

Using the language of McLachlin CJ in Bazley the court states: In

generalthe conduct by the D of an enterprise in which persons are
identified as representing that enterprise should carry an obligation
to third persons to bear the cost of injury or damage to them which
may fairly be said to be characteristic of the content of that
enterprise.
Enterprise risk: Couriers riding frantically through the city,
As the owner of the enterprise itself, you (employer/owner) are
responsible for the harms that occur as a result of your enterprise
Control factors are still relevant, however, we must try ask a broader
question in regards to enterprise risk.

Acting in the course of employment

The second element of VL requires that employees tortious act was
committed in the course of their employment.
That is, the employer is not VL for torts committed by the employee
while on a frolic of his own. (they are not acting in the course of
employment)
An employee who is employed to perform a particular task or tasks
may still be acting within the scope of his or her employment when not
performing those tasks.
Other tasks are within the scope of the employees employment if they
are reasonably incidental to what the employee was employed to do.

Century Insurance Co v Northern Ireland Road Transport (1942,

UK)
H of Lords held that the employee was acting in the course of his
employment even though he was obviously not employed to smoke
cigarettes and light matches.
The employees negligence was plainly negligence in the discharge of the
duties on which he was employed by the defendants.

Bugge v Brown (1919, HCA)

the scope of the employer/employee relationship, (listen again)

The precise terms of the authority are not the criterion for liability: the function,
the operation, the class of act to be done by the employee, is the criterion
whatever be the instructions as to the time, the place, or the manner of doing
the act. In other words, the employer is liable for damage resulting from the
negligent use of a fire on his land if he has sanctioned the lighting of a fire
anywhere on his property.
A prohibition, either as to manner or as to time or even as to the very act itself
will not necessarily limit the sphere of employment so as to exclude the act
complained of, if the prohibition is violated. An instruction or a prohibition may,
of course, limit the sphere of employment. But to have that effect it must be
such that its violation makes the servants conduct complained of so distinctly
remote and disconnected from his employment as to [put him the position] with
regard to that conductof a stranger.
(it is an extremely high threshold, you would have to be doing something so far
outside of your employment in order to be acting outside your course of
employment)

Deatons v Flew (1949, HCA)

It was said that throwing the beer was an act incidental to employment in that it
was a method, though an improper method, of responding to an inquiry from a
customerIn my opinion the act of the barmaid was not expressly authorized, it
was not so connected with any authorized act as to be a mode of doing it, but
was an independent personal act which was not connected with or incidental in
any manner to the work which the barmaid was employed to perform.

Phoenix Society v Cavenagh (1997, SA SC)

The driver was employed by the D to drive one of its buses. She was driving it
as part of her employment when this accident occurred. The fact that she was
driving with such a high blood alcohol count and contrary to instructions does not
alter the fact that she was doing what she was employed to do, namely, drive
the bus.
Criminal behaviour (by employee)
The key question in cases where the employees conduct is not merely
unauthorised or prohibited, but also amounts to a serious criminal offence, is
whether there is sufficient connection between the employees criminal conduct
and what s/he was employed to do that is, the responsibilities that for part of
his or her job.
This is also where the notion of enterprise risk is helpful. If the employer
created the risk, then the fact of serious criminal conduct on the part of the
employee should not, in itself, prevent a finding of VL.
-enterprise risk test is applied for VL.
- Has the enterprise created the environment that enables criminal behavior on

the part of the employee?

NSW v Lepore; Samin v Qld; Rich v Qld (2003, HCA)

One cannot dismiss the possibility of a schools VL for sexual abuse merely by
pointing out that it constitutes serious misconduct on the part of a teacher. If
there is sufficient connection between what a particular teacher is employed to
do, and sexual misconduct, for such misconduct fairly to be regarded as in the
course of the teachers employment, it must be because the nature of the
teachers responsibilities, and of the relationship with pupils created by those
responsibilities justifies that conclusion. (if you create an intimate environment,
the nature of the relationship between students and teachers is such that now
there is a risk)
It is not enough to say that teaching involves careIt is necessary to be more
precise about the nature and extent of care in questionWhere the teacherstudent relationship is invested with a high degree of power and intimacy the use
of that power and intimacy to commit abuse may provide a sufficient connection
between the sexual assault and the employment. The degree of power and
intimacymust be assessed by reference to factors such as the age of students,
their particular vulnerability if any, the tasks allocated to teachers, and the
number of adults concurrently responsible for the care of students.
HC: VL could be found in all three of these scenarios

Ryan v St Ann Holdings (2006, Qld CA)

Where the opportunity to abuse becomes greater, so the risk of harm increases.
Essentially that means where an employer clothes an employee with authority
which, if abused, could lead to great harm, then (the risk being known to the
employee) the easier it will be for a court to draw the conclusion that the
wrongful act was done in the course of employment.

Breach of statutory duty

(can be argued in conjunction

with negligence)

In many personal injury cases, an allegation of breach of statutory

duty is made at the same time as an allegation under CL.

In Victoria, the Wrongs Act applies to claims for damages for harm
resulting from negligence, regardless of whether a claim is brought
in tort, contract, under statute or otherwise.

To bring an action for breach of statutory duty independent of any

restrictions that might be imposed by the Wrongs Act, the P must
demonstrate that his/her action is NOT a claim for damages for
harm resulting from negligence.

Does the statute confer on the P a right to sue?

The first step in any breach of SD claim is to establish that the statute
confers on the P a right to sue. (allows P to sue)
Schiliro v Peppercorn Child Care Centres (2001, Qld SC): It is not
the law that because a statute creates an offence punishable by a penalty
the statute is precluded from also creating a civil cause of action. (the fact
that there is punishment under the act, doesnt preclude a right to bring a
civil action)
OConnor v SP Bray (1937, HCA)
In the absence of a contrary legislative intention, a duty imposed by
statute to take measures for the safety of others seems to be regarded as
involving a correlative private right, though the sanction is penal, because
it protects an interest recognised by the general principles of common
law.

Does the P have private right to sue for that breach?

--In Vic, you can still privately sue an employer though in very limited
circumstances.

Nature, scope and terms of the statute: Chordas v Bryant

(1988, FCA)
Section 79 appears in an Ordinance which is intended to protect the
public interest by regulating the sale of intoxicating liquor, so as to protect
those who by over-indulgence or because of youth or mental ill health are
at risk from its abuse. Section 79 does not confer a private right of action
for damages resulting from its breach. Section 79 was enacted in the
general public interest, not for the protection of person who may be
injured by the conduct of intoxicated persons. (listen again)

Facts: Hotel breached section 79 by continuing to serve alcohol.

Issue:
Court holds no. Section 79 is a simply a public interest provision.

Cutler v Wandsworth Stadium (1949, UK): If the statute is designed

to protect a particular class of individuals, and does protect an interest
that would also give rise to a CL action, it is more likely that a private
action for breach of SD will be allowed.
McDonald v Girkaid (2004, NSWCA): the more specific the precautions
to be taken, the more likely a private right is conferred. In McDonald, the
legislation prescribed very specific precautions to be taken when dealing
with particular dangerous goods. In such a case, a private right will be
conferred.
However, the fact that some provisions in an Act create a private right,
doesnt mean all provisions do. Each must be assessed on an individual
basis.
Conversely, if the statute is cast in general terms and does not state
specific precautions must be taken, it is more likely the court will hold that
it was not intended to confer a private right.
Phelps v London Borough of Hillingdon (2000, H of L): a statutory
provision imposing on local authorities an obligation to provide education
services to children with special educational needs did not give rise to a
private right of action by a child who had been inadequately educated.

***Was the P a member of the protected class?

If the statutory provision is for the protection of an identifiable class of
persons, the P must be a member of that class if s/he is to have a right to
sue.
Drexel London v Gove (2009, WA CA)

***Was the statute directed at preventing the kind of harm

suffered by the P?
Gorris v Scott (1874, UK): Though the D had breached his statutory duty,
the Ps action failed. Loss of the sheep overboard was not contemplated
at all by the statute which was designed, as the name suggests, to
prevent the spread of contagious diseases.
Shire of Brookton v Water Corp (2003, WA CA): WA CA held that the
statutory duty to cover putrescible waste did not confer a private right
of action. The statutory duty is not directed at damage to property by
fire.General condition G12(a), which requires that putrescible waste be
covered upis directed to the discharge of odour.

The statutory duty must have been imposed on the chosen D

As the Ps cause of action arises out of the statute, the actions lies
only against the person on whom the statute imposes the duty
(Darling Island Stevedoring and Lighterage v Long (1957, HCA))
Where the statute does not specify the person on whom the duty is
imposed, the ct may identify the person on whom the statutory
obligation was intended to be imposed by inference from the terms
of the statute.

Has the statute been breached?

In a case of breach of SD, the P need only prove that the D has
breached the duty imposed by the words of the statute.

Some statutes impose an absolute obligation on the D to take a

particular precaution. A failure to do so constitutes a breach
(Galashiels Gas v ODonnell)

Other statutes dont impose an absolute obligation on the D. The ct

may infer from the terms of the statute that a lesser duty, such as a
duty to take reasonable care, is imposed.

Waugh v Kippen (1986, HCA)

Factories and Shops Act (Qld): A male employee over 18 years shall not
be permitted or allowed to lift, carry, or move by hand any object so
heavy as to be likely to cause risk of injury.
HCA: The words permitted or allowed presupposed an awareness on the
part of the employer that his/her employee was engaged in moving by
hand an object so heavy as to be likely to cause injury. Although the P had
a pre-existing back weakness, the employers neither knew or ought to
have known about it. Thus, as they neither knew or ought to have known
that moving the beam would be likely to cause injury to the P, they had
not breached the duty imposed on them by the statute.
If the D has been found to breach the provision

Apportionment and contributory negligence

Victorias apportionment legislation permits apportionment due to
contributory negligence in cases of breach of SD, even where the Ds
breach of duty does not depend on a finding of negligence.

LECTURE NINE: NUISANCE

Overview:

In this weeks class, we commence study of a new tort: nuisance.

Nuisance is unrelated to negligence and has its own rules. Nuisance comes in
two forms, public and private. Private nuisance is an unlawful interference with
a persons use or enjoyment of land, or of some right over, or in connexion with
it (Hargrave v Goldman). Public nuisance is an unlawful interference with the
enjoyment of land by the general public. Any action in public nuisance must
therefore be brought by the Attorney-General on behalf of the general public.
Private individuals cannot bring an action in public nuisance.
__________________________________________________________________________________
Introduction:
There are two forms of nuisance: public and private.
Private nuisance: an unlawful interference with a persons use or enjoyment
of land, or of some right over, or in connexion with it. (Hargrave v Goldman
1963)
- is connected to the ownership of private property; without some kind of
property right in or over the land affected by the interference, the P cannot sue.

Public nuisance: an unlawful interference with the enjoyment of land by the

general public.
a nuisance which is so widespread in its range or so indiscriminate in its effect
that it would not be reasonable to expect one person to take proceedings on his
own responsibility to put a stop to it, but that it should be taken on the
responsibility of the community at large. Attorney-General v PYA Quarries
(Denning LJ)
- Any action in public nuisance must therefore be brought by the AttorneyGeneral on behalf of the general public. Private individuals cannot bring an
action in public nuisance.

Two types of Private Nuisance:

There are two types in which private nuisance can occur, which the law
treats differently:
1. By interference with use or enjoyment of property rights
2. By material damage to property
-St Helens Smelting Co v Tipping (1865)
Private nuisance by interference with Use and enjoyment of
Property Rights
To establish that an interference with her/his use and enjoyment of
property constitutes a nuisance, the plaintiff must show that the
interference was unreasonable in all the circumstances. In determining
whether an interference is unreasonable, the court balances the Ps
desire to use and enjoy her/his property without interference against
the defendants desire to undertake the activity that causes the
interference.

Considerations to determine whether the interference in unreasonable:

In striking a balance between the conflicting property uses of the P and
the D, the court takes into account the Calculus of Nuisance, which
includes:
-the locality in which the interference occurs
-what would be an unreasonable interference with the use and enjoyment
of property in one neighbourhood would not necessarily be so in another.
i.e A degree of interference that would be reasonable in an industrial area
may be unreasonable in a residential area.
(Sturges v Bridgman 1879)

(Feiner v Domachuk 1994)

-the duration, frequency and extent of interference

The above factors are weighed against one another in determining
whether that interference is unreasonable.
(Seidler v Luna Park Reserve Trust 1995)
- the sensitivity of the plaintiff
An interference with the Ps use and enjoyment of property will not be
unreasonable if the P is unduly sensitive to interference.
If however, the interference would have interfered with an ordinary robust
use of the plaintiffs premises, then it constitutes a nuisance, whether or

not the Ps use of that property is particularly sensitive.

(Robinson v Kilvert 1889)

(McKinnon Industries LtdV Walker 1951)

- the motive (Malice)

Malice on the part of the D renders unreasonable an interference that
might otherwise be reasonable, as a D who uses his/her property
maliciously to cause interference cannot be regarded as having acted
reasonably.
- Whether part of ordinary give and take
* Southwark LBC v Tanner
* A reasonable use of property will not be considered a nuisance: see
Southwark LBC v Tanner [2001] 1 AC 1 However, an unreasonable use of
property can be a nuisance, as where a swimming pool is constructed
without appropriate drainage: Corbett v Pallas.
___________________________________________________________________________
-There must be an interference with recognised rights in or over property; does that include
privacy?
The mere fact that the P suffered loss or inconvenience in the use of his/her property is not
sufficient in itself to give rise to an action in private nuisance. The loss/inconvenience
suffered by the P must arise from an interference with recognised property rights.
(Victoria Park Racing & Recreation Grounds Co Ltd v Taylor 1937)
- There is some authority to suggest that what can be seen from the Ps property may
constitute an unreasonable interference with the Ps use and enjoyment of the property itself.
( Thompson- Schwab v Costaki 1956)
Thus, visual pollution could possibly constitute a nuisance.
While it is true that the law does not recognise a cause of action to
protect a view per se, there are authorities stating that an action may be
brought where a D by an unlawful act interferes with the Ps enjoyment of
his/her property including a view. Pullin JA (Pioneer Concrete (WA) Pty Ltd
v Elwood (2005))
- As interference by noise, dust vibration or smell physically interfere with
the Ps use and enjoyment of the property itself, they can clearly
constitute an actionable private nuisance.

Private Nuisance by Material Physical Damage; Strict liability in

nuisance and the onus of proof

In a case of material damage:

-the P may establish a prima facie case of nuisance simply by proving the
fact of damage
-the P does not have to prove that the Ds use of land was unreasonable
-the burden of proof is on the D to establish that its use of land was
unreasonable, in which case it has a defence.
Thus, there is strict liability in nuisance for material physical damage
unless the D can establish that her/his use of property was reasonable in
the circumstances.
1. Title to sue (Who has standing to sue?)
- As private nuisance consists of an interference with recognised rights
in property, it should follow that only those with rights in, or over, property
should have standing to sue in private nuisance.
-have to show sufficient connection with the land in order to seek some
remedy
-have a sufficient interest in the land that is being affected
-When is that connection sufficient?
- You must have proprietary interest in the land (e.g legal interest in the
land, lease)
[A] person can only sue if [they have] the right to exclusive
possession of the land, such as a freeholder or tenant in
possession But a mere licensee on the land has no right to
sue. Hunter v Canary Wharf
-Refer to Oldham v Lawson (1976)
2. Who can be sued?/ Who may be found liable?
In most cases, the person who creates the nuisance is the owner/occupier
of the premises from which it emanates. However, the person who creates
a nuisance may be sued, whether or not, she/he is the owner/occupier of
the premises from which it emanates. Thus, although the P may need to
show that she/her has property rights in or over the premises affected, the
D need not have any property rights in or over the premises form which
the nuisance comes.
-Creator of the nuisance?
Fennell v Robson Excavations Pty Ltd
Liability attaches to any person who creates a nuisance while present on
land with the authority of its occupier.
(if you created the nuisance, you can be liable..regardless of fault)

-Occupier who adopts or continues a nuisance?

The owner or occupier of the premises from which a nuisance emanates
may be sued in respect of that nuisance, even if she/he did not create it.
However, in these circumstances, the owner/occupier is liable in private
nuisance only if she/he continued or adopted the nuisance. Additionally,
the occupier of premises may be liable for continuing or adopting a
nuisance created by a third party.
Sedleigh-Denfield v OCallaghan
An occupier of land continues a nuisance if, with the knowledge or
presumed knowledge of its existence, he fails to take any reasonable
means to bring it to an end, though with ample time to do so. He adopts
it if he makes any use of the erection, building, bank or artificial
contrivance which constitutes the nuisance.
(if you had knowledge of a nuisance but you did nothing about it, that is
fault. You can be held liable).
Liability for continuing or adopting a nuisance depends on fault on the
part of the defendant, in the usual sense of a failure to take reasonable
care. A D who did not create the nuisance and who neither knew nor
ought to have known of it, is not liable for that nuisance.
E.g Montana Hotels Ptd Ltd v Fasson Pty Ltd 1986
-Occupier who authorises a nuisance?
Liability for continuing and adopting a nuisance created by someone (or
something) else generally depends upon the Ds ability to control the
effect of the nuisance.
E.g A landowner who has given control of the land to another cannot be
liable for a nuisance created by that other person unless the landowner
authorised a particular use of the land and the nuisance was the natural
and inevitable result of that use
De Jager v Payneham & Magill Lodges Hall Inc
An occupier of premises who hires the premises out for a particular
purpose, which involves a special danger of nuisance, is liable for any
nuisance caused by the hirer carrying out that purpose.

Any person who is held liable for a nuisance created by another is, by
definition, not solely responsible for causing the harm of which the P
complains. All Australian jurisdictions have introduced a statutory system
of proportionate liability for claims concerning economic loss or property
damage which requires the court to hold the D liable only for so much of

the Ps as is just and equitable having regard to the extent of the Ds

responsibility for the loss or damage.

Statutory Authorisation as a Defence to an action in private

nuisance
There will be a defence to private nuisance if it can be shown that the
activities complained of by the claimant were authorised (expressly or
impliedly) by a statute (Lord Dunedin in Manchester Corporation v
Farnworth [1930] AC 171).
It is not sufficient simply that the activity carried on by the D be
authorised by Parliament; in order for the D to be available, the creation of
a nuisance in performance of that authorised activity must also be
expressly undertaken or impliedly authorised. Thus, for example, where
the authorised activity can be undertaken with creating a nuisance, the
defence is not available as any nuisance created is then not the inevitable
consequence of that activity.

Modern statutes often confer immunity if, the authorised activity is done
in good faith. Thus, the defendant must show that it acted in good faith
when engaging in the conduct that caused the interference of which the
plaintiff complains. The relationship between liability in nuisance, good
faith and the burden of proof is considered in
(Bankstown City Council v Alamdo Holding Pty Ltd 2005).

PUBLIC NUISANCE:
[A] Public nuisance is a nuisance which is so widespread in its range or so
indiscriminate in its effect that it would not be reasonable to expect one
person to take proceedings on his own responsibility to put a stop to it,
but that it should be taken on the responsibility of the community at
large.
-affects public at large
- Any action brought against the D in respect of it must, prima facie, be
brought by the Attorney General on behalf of the public rather than by a
private individual. There is no single test that shows how many individuals
must b affected by a nuisance before it constitutes a public nuisance.
E.g Attorney General v OYA Quarries Ltd (1957)
If the nuisance is in fact a private one according to the this test, the A-G is
not the proper plaintiff; conversely if the nuisance is in fact a public one, a

private individual is not, prima facie, the proper P. Private individuals do

not have standing to sue in respect of public nuisances unless they have
suffered particular damage over and above that suffered by the public in
general.
E.g Benjamin v Storr (1874)
A private P may sue if she/her has suffered damage that is different in
kind from that suffered by the rest of the public, or damage of same kind
but to a greater extent than that suffered by the rest of the public.
E.g Walsh v Ervin (1952)

LECTURE 10: INTENTIONAL TORTS

Overview: In this class we will discuss a series of torts often collectively referred
to as a trespass to the person torts or intentional (as opposed to negligent)
torts. They include the torts of battery, assault and false imprisonment. All have
criminal law equivalents. In the civil context, these same offences are torts that
may give rise to private claims for damages. We will not discuss trespass to
property or goods.

Structure:
1. Introduction to intentional torts
2. Battery
3. Assault
4. False imprisonment
5. Onus of proof

Introduction to intentional torts

Before the tort of negligence had emerged as a separate and

recognizable tort, there were two types of action available to a P
who had experienced physical injury
Trespass
Action on the case

The distinction between trespass and action on the case is the

distinction between direct and indirectly caused harm.

Direct v indirect actions

To be able to bring an action in trespass, it was necessary for the

damage to be caused directly to the P.

For example:
If a person throws a log into a highway and in that act it hits
me I may maintain trespass because it is an immediate wrong
(intentional tort). But if as [the log] lies there, I tumble over
it and receive an injury I must bring an action upon the
case (negligence). (Reynolds v Clarke (1726))

Direct v indirect II

A second difference between negligence and intentional torts is that

an action in trespass is actionable per se (ie, actionable without
harm)

It is not necessary for the P to prove that s/he has suffered damage
as a result of the Ds act. All the P needs to do is successfully prove
the elements of the particular tort (eg, assault or battery).

By contrast, an action on the case (negligence) requires the P to

demonstrate damage.

Intention

Stanley v Powell [1891] 1 QB 86: the P must have intended to

commit the tort.

It is insufficient that the P intended to commit the act that caused

the tort.

For example, if I shoot at a tree and the bullet ricochets off the tree
and hits the P, I lack the intention necessary to make out the tort of
battery (though I may be liable in negligence).
-Was there an intention to cause harm?
Battery

Definition: Battery is a direct and intentional act by the D causing

bodily contact with the P without his or her consent.

Battery is about the protection of ones bodily integrity. Each of us

has the right to control who or what touches our bodies.

A battery is thus a trespass upon ones bodily integrity.

Elements of battery
There are three elements to the tort of battery:
A direct act by the D
Bodily contact
Lack of P consent (though operating as a defence)

Any form of unwanted touching may constitute a battery.

-There is no need to show harm, the harm is unwanted bodily
contact.
-It is not battery if you make physical contact if it is generally
acceptable conduct in everyday life.

Does battery require anger or hostility on the part of the D?

-

Boughey v R: It has never been the common law that actual

hostility or hostile intent towards the person against whom force is
intentionally applied is a necessary general ingredient of an
unlawful battery.

Secretary, Dept of Health & Community Services v JWB (1992. HCA):

At common lawevery surgical procedure is a [battery] unless it is
authorized, justified or excused by law. The law draws no lines
between difference degrees of violence, every mans [sic] person
being sacred, and no other having a right to meddle with it, in any
the slightest manner.
-hostility/malice are not requirements to show battery

Rixon v Star City P/L (2001, NSWCA)

The absence of anger or hostile attitude by the person touching

another is not a satisfactory basis for concluding that the touching
was not a battery.

However, the court concluded that there was no battery because a

hand on the shoulder is contact which is generally acceptable in
the ordinary conduct of everyday life.

What types of bodily contact constitute battery?

The singular requirement is that the D make some physical contact

with the Ps person. That includes:
touching someones body
touching someones clothing
touching something they are carrying or riding on
throwing something at them (Scott v Shepherd)
a dog controlled by the D that touches the Ps body (Darby v
DPP)
Spitting at someone (Majndi v NT)
Cutting someones hair

Actions that have not constituted bodily contact include:

Blocking a doorway (Innes v Wylie)
The P observing the D battering someone else (Carter v
Walker)

Defence of consent
If the P consents to the bodily contact there is no battery.

There are two bases upon which consent can be demonstrated:

Express consent (expressly given by way of contract, e.g
consent to surgery)
Implied consent (looking at the broader circumstances, e.g
voluntarily engage in sporting event that involves physical
contact then you are consenting by way of participating)

Giumelli v Johnston (1991, SC SA)

The rules of Aust. Rules Football permit bodily contact, including strong
bodily contact, in the course of the game. Those who participate in a
football match are taken to consent to the infliction of them of such
physical force as is permitted by the rules of the game. It was accepted by
the P moreover that some bodily contact outside the rules of the game is
to be expected as an ordinary incident of a football match.
Although a players consent to the application of force to him in the
course of the game extends not only to the application of force within the
rules of the game but also to certain commonly encountered

infringements of the rulessuch consents cannot be taken to include

physical violence applied in contravention of the rules of the
game by an opposing player who intends to cause bodily harm or
knows, or ought to know, that such harm is the likely result of his
actions.
-there is a category of additional behavior that is beyond the rules of the
game where there is an intent to cause harm or the D ought to know to
cause harm.The notion of consent is cautiously applied.

Who must prove consent?

In Australia, consent is a defence rather than an element of the tort.

The P has to prove the first part of the tort; (intent, direct
act, bodily contact)
The D therefore has the burden of proving consent.

This position was stated clearly by the HCA in JWB (1992):

Notwithstanding the English view, I think that the onus is on the D to

prove consentThe contrary view is inconsistent with a persons right to
bodily integrity. Other persons do not have the right to interfere with an
individuals body unless he or she proves lack of consent to the
interference.
Summary of battery

Assault

Battery requires the P to demonstrate a direct and intentional

act on the part of the D that causes bodily contact with the P
without the Ps consent.

Bodily contact is defined broadly body to body contact is not

necessary

Ps consent can be express or implied.

The D bears the burden of proving consent.

Battery is actionable per se; the P need not prove damage

Physical contact that is generally acceptable in the ordinary

conduct of everyday life is not battery.

Definition: An assault is a direct threat by the D that causes

the P to reasonably apprehend some imminent unwanted
contact with his or her person.

Assault DOES NOT require any physical contact. A threat of

imminent contact is sufficient

So assault is the threat of unwanted contact; battery is the fact of

unwanted contact.

Elements of assault

A threat by the D, whether by words or conduct, to inflict

imminent contact on the P.

A subjective intention on the part of the D that the threat will

create in the mind of the P an apprehension that the threat
will be carried out forthwith. (What does the D subjectively
believe to be the effect of their behavior?) It is not
necessary that the D actually intend to carry out the
threat. (It is sufficient that they made the P think that they
would carry out the threat..)

The threat must create in the P an objectively reasonable

apprehension that the threat will be carried out forthwith.
(Physical contact is not required, rather it is about the
subjective intention of D to create the apprehension in the
mind of the P and the P does apprehend/objectively believes
that physical contact is imminent.)

Although physical contact with the P is not an element of assault, there

must be at least the possibility of physical contact for the threat to
constitute an assault. In other words, if the threat cannot culminate in a
battery, there is no assault.
Stephens v Myers (1830)

For there to be an assault there must, in all cases, be the

means of carrying the threat into effect.

The P must be able to demonstrate that the D could have carried

out the threat.

This is not the same as proving that the D intended to carry out the
threat. Rather, the D must intend for the P to believe or
apprehend that the threat will be carried out.

ACN 087 528 775 (formerly Connex trains) v Chetcuti (2008, Vic CA)
It is not necessary that the D intends to carry out the threat, but it is a
requirement of the tort that there be a subjective intention on the part of
the D that the threat will create an apprehension in the mind of the P that the
threat will be carried out forthwith. Also, the apprehension in the mind of the P
must be objectively reasonable.

Mere words?
The general rule is that a verbal threat cannot constitute an assault
unless there is a means of carrying that threat into effect. So for a
verbal threat to be an assault, it must usually be accompanied
by a physical act or gesture.

The threat (whether verbal or physical or both) must cause the P to

fear immediate/imminent physical contact.

However, the courts are not always consistent in their application of

this rule.

Barton v Armstrong (1969, NSW SC)

It is clearthat mere words themselves are not sufficient to constitute an
assault and that the threatening act must put the victim in immediate fear
or apprehension of violenceI think it is a matter of circumstance. To
telephone a person in the early hours of the morning, not once but on
many occasions, and to threaten him, not in a conversational tone but in
an atmosphere of drama and suspense, is a matter that a jury could say
was well calculated to not only instill fear into his mind but constitute
threatening acts, as distinct from mere words.
* You dont need to demonstrate there is fear for something to constitute
as a threat.
* Some threats are not capable of arousing immediate apprehension in the
mind of the P

Slaveski v Victoria (2010, Vic SC)

There is no rule preventing a threat of physical harm which is not accompanied
by any physical contact such as a threat made over the phone or by email or
other electronic means from constituting an assault. Such a threat can
constitute assault provided that all the elements of the tort are established,
including that the threat is to inflict immediate physical harm.

-emphasises immediacy
-what enables you to satisfy the elements of the tort is the immediacy,
thats where it is different from Barton which suggest that the immediacy
is some time in the future.
-Assault is easily made out where there is physical threat.
-In the absence where there is verbal threat, the stronger cases are where
the threat is likely to be carried out soon. The more immediate the risk,
the more likely the P is likely to succeed.
Summary of assault
The P must demonstrate:

That the D threatened, whether by words or conduct, to

inflict contact on the P imminently.
That the D intended to create an apprehension in the mind of the P
that s/he will carry out the threat. It is not necessary that the D
actually intend to carry out the threat, though s/he must have the
means to do so
The threat must create in the P an objectively reasonable
apprehension that the threat will be carried out imminently. It is
much harder, though not impossible, to prove objectively reasonable
apprehension when the threat is mere words.
False imprisonment

False imprisonment is a direct act by the D that totally deprives the

P of his or her liberty without lawful justification. The deprivation of
the Ps liberty must be total (ie, no means of escape).

What makes false imprisonment false is that there is no legal

justification for the imprisonment.
Bird v Jones (1845, UK)
If one man [sic] merely obstructs the passage of another in a particular
directionleaving him at liberty to stay where he is or to go in any other
direction if he pleases, he can be said to imprison himImprisonment is a
total restraint of the liberty of the person, for however short a time, and

not a partial obstruction of his will, whatever inconvenience that may bring
on him.
-obstruction where there are alternative routes is not false imprisonment.
-psychological force
E.g D may say something to P which gives them an indication that they
cannot leave?
McFadzean v CFMEU (2004, Vic SC)
Whilst restraint must be total and whilst false imprisonment involves
restraint at or in some identifiable place, the concept of incarceration has
developed an expanded meaning. There can be false imprisonment even if
there is a notional means of escape provided that an available means is
unreasonable such as, for instance, involving risk to life or limb.

In this case the Ps could have travelled through the bush to escape:
[T]he journey through the bush would not have been unreasonably
arduous for any of the PsI consider that journey through the bush
was not an unreasonable means of egress for even the least fit and
least equipped protester.
-If there is a means of escape, the means of escape must be
reasonable.
Symes v Mahon (1922, SA Ct)
In a case of this description, where there has been no application of
physical force to the person alleging imprisonment, there must be
evidence of complete submission by him to the control of the other party
reasonably thinking that he had no way of escape which could reasonably
be taken by him.

-psychological force
- need to have some reason why the P has been incorrectly
detained

Summary of false imprisonment

False imprisonment is a direct act by the D that totally

deprives the P of his or her liberty without lawful justification.
The D must intend to deprive the P of his/her liberty, but
malice is not necessary.
The deprivation of the Ps liberty must be total (ie, no means
of escape).
The Ps liberty can be overcome through force, threats of
force, or psychological force

There is no false imprisonment if the P doesnt want to

escape
What makes false imprisonment false is that there is no
legal justification for the imprisonment.

Onus of proof for intentional torts

For all trespass to the person torts (ie, intentional torts), the onus is
on the P to prove the facts that constitute the elements of the tort
(eg, the fact of bodily contact, the apprehension of immediate
physical contact, the deprivation of liberty).

(Consent is treated as a defence proven by the D in battery)

Then the D must prove that the trespass was not intentional.

Effect of statutory reform on intentional torts

Reform of the Wrongs Act has had little effect on intentional torts in
Victoria.
The limits on damages under the Wrongs Act for negligence do not
apply to intentional torts.

Lecture 11: Defamation

Overview of topic: In this weeks class, we will explore the tort of
defamation. Defamation is concerned with the plaintiffs reputation, more
specifically, about what an ordinary reasonable person might think of
him or her after reading, seeing or hearing the defamatory material.
Defamation is a tort of strict liability, which means it is not necessary for
the plaintiff to demonstrate harm. It occurs whenever a person publishes
defamatory material about another person. Because liability in defamation
attaches to what people say, write or broadcast, it has powerful
implications for freedom of speech. We will discuss how the law has
balanced these competing interests.
Defamation is:
-concerned with someones reputation, what an ordinary reasonable
person might think of her/him after reading, seeing or hearing the

defamatory material.
-is a tort of strict liability and occurs whenever a person publishes
defamatory material about another person. The focus is on the effect that
the publication has on the people who read, see or hear it, rather than on
the nature of the Ds conduct.
A defamatory statement is one which tends to lower a person in the
estimation of his fellows by making them think less of him. (Fleming)

Is the published matter likely to lead an ordinary reasonable person

to think less of the person? Radio 2UE v Chesterton [2009]
Protects the reputation, rather than feelings, of an individual.
References to an Act in these slides are to the Defamation Act
2005 (Vic) unless otherwise stated.

What makes a publication defamatory?

Defamation occurs when there is publication of material that would make
an ordinary, reasonable people, think less of the plaintiff. No matter what
form the alleged defamation takes, the question is: what effect would
the published material have on the mind of an ordinary,
reasonable person?
For a defamation action to succeed, the plaintiff has to prove
three things:
-

That the communication has been published to a third person

(publication)
That the communication identifies (or is about) the plaintiff
(identification); and
That the communication is defamatory.

Publication:
Slander is spoken words
Libel is written words
Can be by spoken, written, broadcast, statues, paintings, cartoons,
film, letters, anything that communicates meaning.
There is publication of defamatory material whenever someone other than
the P and the D sees/hears/reads and understands it. The tort is
established if there is publication even to one person, although, obviously,
the more widespread the publication, the more that will be reflected in
damages that the D must pay.

**Everyone who participates in the publication of defamatory material

commits the tort.
E.g Cornes
Act and Place of Publication

Dow Jones & Co Inc v Gutnick (2002) CLR 575, 600.

Allegedly defamatory material uploaded to Internet server in New
Jersey, USA. Read by people in Victoria who had subscribed to the
Barrons news service. Where was the publication?
Was it in New Jersey for that was where the act of publication was
done, or was it in Victoria, where Joseph Gutnicks reputation was?

Gutnicks Case
Harm to reputation is done when a defamatory publication is
comprehended by the reader, the listener, or the observer. Until
then, no harm is done by it. This being so it would be wrong to treat
publication as if it were a unilateral act on the part of the publisher
alone. It is not. It is a bilateral act in which the publisher makes it
available and a third party has it available for his or her
comprehension. at [26].

Republication
The original publisher may be liable for later publications if

Done as an agent
Authorised expressly or impliedly
A natural or ordinary consequence of the initial publication (Theaker
v Richardson [1962] 1 WLR 151)

Identification

The words must identify the plaintiff

This may be:
Directly Fiona Kelly is the Subject Coordinator of Torts at La
Trobe and she [insert something defamatory here]
Indirectly Patrick is the Head of the Law School and he
[insert something defamatory here]
The only Patrick who is the head of any law school is
Patrick Keyzer, we therefore must be talking about him.
The inference is clear that the Law School is the La
Trobe Law School
By position the Prime Minister obviously Tony Abbott
As a member of a group the hockey player with red hair

Inferences of identification

Average reasonable reader must be able to make the inferences to

be able to identify the plaintiff in the publication

Would persons acquainted with the plaintiff reasonably in the

circumstances be lead to believe that the plaintiff was the person
referred to? David Syme & Co v Canavan (1918) 25 CLR 234

Matter
Section 4
"matter includes
(a)
an article, report, advertisement or other thing communicated
by means of a newspaper, magazine or other periodical; and
(b)
a program, report, advertisement or other thing communicated
by means of television, radio, the Internet or any other form of electronic
communication; and
(c)
a letter, note or other writing; and
(d)
a picture, gesture or oral utterance; and
(e)
any other thing by means of which something may be
communicated to a person;
Imputations/Matter
Section 8
Single cause of action for multiple defamatory imputations in
same matter
A person has a single cause of action for defamation in relation to the
publication of defamatory matter about the person even if more than one
defamatory imputation about the person is carried by the matter
Imputations

What do the words used by the publication mean?

The words are This guy needs to get his head checked.
The imputation is that He has some form of mental instability
If he is an air traffic control officer, it may mean that he is unfit for
his calling.
They should be read in their ordinary and natural meaning.

Attribution of Meaning

What would a reasonable person in the context of the publication

interpret the words to mean?

A reasonable person is not avid for scandal, nor perverse nor

suspicions, but of average intelligence, does not live in an ivory
tower, has general knowledge and experience of worldly affairs.
A reasonable person does not interpret in a legalistic precise
manner, but may skim over a letter in the paper, or only be half
listening to the radio broadcast. What would they hear in the words?

False Innuendo
Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1
Mick Molloy says
And apparently you slept with her too.
The words just say they fell asleep together. However the
imputation is clear they had sexual intercourse.
Nicole Cornes pleaded that the words imputed that she was
promiscuous.
This is a false innuendo.
It merely requires the attribution of meaning that exists within the
publication without knowledge of extrinsic facts.

True Innuendo
Cornes v The Ten Group Pty Ltd

However, Nicole Cornes was married to Graham Cornes at the time.

If you knew this fact (which was not alluded to in the publication
itself) then you may hear the imputation that Nicole Cornes is an
adulterer.
This is a true innuendo. An extrinsic fact known to particular people
which changes the meaning of the words.
E.g Cassidy v Daily Mirror Newspaper [1929] 2 KB 331

Vulgar Abuse

Because a reasonable person is not avid for scandal, they may

interpret the words as mere vulgar abuse not intended to be taken
seriously.
If understood by the third party as mere abuse, then does that really
lower the reputation of the abused person? Doesnt it say more
about the abuser?
Mundey v Askin [1982] 2 NSWLR 369

Apply the test

Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460, 467.
The general test, stated as whether the published matter is likely
to lead an ordinary reasonable person to think the less of a plaintiff,
was confirmed by this Court in Mirror Newspapers Ltd v World Hosts
Pty Ltd, Chakravarti v Advertiser Newspapers Ltd and by Callinan
and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic.
Older tests
Shun, avoid or exclude from society without moral discredit to the
plaintiff Youssoupoff v Metro-Goldyn-Mayer Pictures Ltd (1934) 50
TLR 581, 587.

Expose someone to hatred, contempt or ridicule Parmiter v

Coupland (1840) 151 ER 340, 342.
Lowered in the estimation or right-thinking members of society
generally Sim v Stretch [1936] 2 All ER 1237, 1240; Slatyer v Daily
Telegraph Newspapers Co Ltd (1908) 6 CLR 1, 7.

Balancing the protection with freedom of speech

Standing
Limitation periods
Offer of amends
Defences

Standing
No dead people. Once you are dead, there is no reputation to
maintain. See s 10, (even if published before death).
Generally, no companies. Section 9.
Unless it is an incorporated body not for financial gain (but not
a public authority) or;
Employs fewer than 10 people
Limitation Period
1 year from the date of publication Limitation of Actions Act 1958
(Vic) ss 5(1AAA); 23B. But can be extended to 3 years
Offer of Amends
Section 13
Publisher may make offer to make amends
(1)
The publisher may make an offer to make amends to the
aggrieved person.
(2)
The offer may be
(a)
in relation to the matter in question generally; or
(b)
limited to any particular defamatory imputations
that the publisher accepts that the matter in
question carries.

When offers can be made?

Section 14
When offer to make amends may be made
(1)
An offer to make amends cannot be made if
(a)
28 days have elapsed since the publisher was given a
concerns notice by the aggrieved person; or
(b)
a defence has been served in an action brought by the
aggrieved person against the publisher in
relation
to the matter in question.
Consequence of an offer
If accepted the defamation case cannot be asserted or continued
s 17.
If it is rejected, the case can go ahead, but, if it was unreasonably
rejected, then the unreasonable rejection raises a defence that is
available to the defendant.
Failure to accept a reasonable offer
Section 18

(1)
If an offer to make amends is made in relation to the
matter
in question but is not accepted, it is a defence to
an action for
defamation against the publisher in relation
to the matter if
(a)
the publisher made the offer as soon as practicable
after
becoming aware that the matter is or may be defamatory; and
(b)
at any time before the trial the publisher was ready
and
willing, on acceptance of the offer by the aggrieved person, to carry out
the terms of the offer; and
(c)
in all the circumstances the offer was reasonable.

DEFENCES
Consent
A common law defence. Not listed in the Act.
It is a defence that the P expressly or impliedly consented to the act being
done towards him/her of which he/she complains. However, the consent
must be to the publication of the particular imputation which was
conveyed.

Consent doesnt mean if you consent to one kind of imputation, you risk
publication of an imputation that wasnt expected. P must have consented
to the act being done to him/her to which he complains.

Ettingshausen v Australian Consolidated Press Limited (1995) 38

NSWLR 404
Must consent to the imputation made, not just publication of
something.

Justification

Truth of the imputation is a defence to that imputation.

Section 25
Defence of justification
It is a defence to the publication of defamatory matter if the defendant
proves that the defamatory imputations carried by the matter of which the
plaintiff complains are substantially true.
Contextual Truth
Section 26
Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant
proves that
(a)
the matter carried, in addition to the defamatory
imputations of which the plaintiff complains, one or more other
imputations ( contextual imputations ) that are substantially true; and
(b)
the defamatory imputations do not further harm the
reputation of the plaintiff because of the substantial truth of the
contextual imputations.
Contextual Truth Example

To say of a paedophile that he is a rotten scoundrel.

It is not true that he is a scoundrel, but it is true that he is a
paedophile, the imputation is that he is unscrupulous.
BUT he is a criminal, and criminal are general unscrupulous, so it
doesnt matter that he is some other kind of criminal, because it
doesnt lower his reputation any further.
This might not be the case if the truth and falsity are reversed (it is
true that he is a scoundrel, but not true that he is a paedophile.

Absolute Privilege
Section 27

Defence of absolute privilege

(1)
It is a defence to the publication of defamatory matter if the
defendant proves that it was published on an occasion of absolute
privilege.
(2)
Without limiting subsection (1), matter is published on an
occasion of absolute privilege if
(a)
the matter is published in the course of the
proceedings of
a parliamentary body
(b)
the matter is published in the course of the
proceedings of
an Australian court or Australian tribunal
Mann v ONeill (1997) 191 CLR 204

Wrote to the Attorney-General, Chief Magistrate and Minister for

Justice questioning the mental capacity of the Magistrate who heard
is claims in Court.
Defendant argued absolute privilege because the communication
was about court proceedings so quasi-judicial.
The defence arises because of inherent necessity for free exchange
of information in parliaments and courts between judge, jury,
lawyers, parties, witnesses.
If there was no privilege in court, then it might impede the truth and
justice and the safe administration of justice.
This was not such an occasion.

Qualified Privilege

Section 30
Defence of qualified privilege for provision of certain information
(1)
There is a defence of qualified privilege for the
publication of defamatory matter to a person (the
recipient ) if
the defendant proves that
(a)
the recipient has an interest or apparent interest in
having
information on some subject; and
(b)
the matter is published to the recipient in the course of giving
to the recipient information on that subject; and
(c)
the conduct of the defendant in publishing that matter
is
reasonable in the circumstances.
Cush v Dillon (2011) 243 CLR 298
Three board members of a statutory authority were involved. One told the

chairman that it was common knowledge that another board member

was having an affair with the general manager.

This wasnt true, but there was a rumour that it was true.
Did the chairman of the board have an interest in receiving the
communication of the rumour?
Was there a reciprocity of duties and interests between the defamer
and the third party?
Yes, because it was a staff related matter, and the relationships of
staff of an authority is important for the board to know about.

Public Documents
Section 28

Defence for publication of public documents

(1)
It is a defence to the publication of defamatory matter if the
defendant proves that the matter was contained in
(a)
a public document or a fair copy of a public document;
or
(b)
a fair summary of, or a fair extract from, a public
document.

(3)
A defence established under subsection (1) is defeated if, and
only if, the plaintiff proves that the defamatory matter was not published
honestly for the information of
the public or the advancement of
education.
Fair Reporting
Section 29
Defences of fair report of proceedings of public concern
(1)
It is a defence to the publication of defamatory matter if the
defendant proves that the matter was, or was contained in, a
fair report of any proceedings of public concern.
(2)
It is a defence to the publication of defamatory matter if the
defendant proves that
(a)
the matter was, or was contained in, an earlier published
report of proceedings of public concern; and
(b)
the matter was, or was contained in, a fair copy of, a fair
summary of, or a fair extract from, the earlier published
report; and
(c)
the defendant had no knowledge that would reasonably
make the defendant aware that the earlier published report
was not fair.

Fair Comment
A common law defence.

The statutory defence of Honest Opinion is not materially different

from the common law defence of Fair Comment (Herald and Weekly
Times Pty Ltd v Buckley (2009) 21 VR 661, [84])
There is a difference between facts and opinion (or comment)
The comment must be fair, that is, able to be honestly held by a
reasonable person; and
It must be on a matter of public interest; and
The facts must be stated, referred to or notorious Channel Seven
Adelaide Pty Ltd v Manock (2007) 232 CLR 245, [45].

Honest Opinion

Section 31

Defences of honest opinion

(1)
It is a defence to the publication of defamatory matter if
defendant proves that
(a)
the matter was an expression of opinion of the
defendant rather than a statement of fact; and
(b)
the opinion related to a matter of public interest; and
(c)
the opinion is based on proper material.

the

Proper Material
(5)
For the purposes of this section, an opinion is based on proper
material if it is based on material that
(a)
is substantially true; or
(b)
was published on an occasion of absolute or qualified privilege
(whether under this Act or at general law); or
(c)
was published on an occasion that attracted the
protection of a
defence under this section or section 28
or 29.

Innocent Dissemination
Section 32
Defence of innocent dissemination
(1)
It is a defence to the publication of defamatory matter if
the
defendant proves that
(a)
the defendant published the matter merely in the
capacity, or as
an employee or agent, of a subordinate
distributor; and

(b)
the defendant neither knew, nor ought reasonably to have known,
that the matter was defamatory; and
(c)
the defendant's lack of knowledge was not due to any
negligence on the part of the defendant.
(2)
For the purposes of subsection (1), a person is a subordinate
distributor of defamatory matter if the person
(a)
was not the first or primary distributor of the matter; and
(b)
was not the author or originator of the matter; and
(c)
did not have any capacity to exercise editorial control over the
content of the matter (or over the publication of the
matter) before it was
first published.
Triviality
Section 33
Defence of triviality
It is a defence to the publication of defamatory matter if the defendant proves
that the circumstances of publication were such that the plaintiff was unlikely to
sustain any harm.
Remedies
Damages
No punitive or exemplary damages s 37
Section 34
Damages to bear rational relationship to harm
In determining the amount of damages to be awarded in any defamation
proceedings, the court is to ensure that there is an appropriate and rational
relationship between the harm sustained by the plaintiff and the amount of
damages awarded.
Injunctions are possible in limited circumstances