LWB147 Torts A - Semester 1, 2012

Negligence

<P> v <D>

Interference/Alleged negligence: <insert from facts here>

Time Limitations
Personal Injuries: 3 years: LIA (Qld) s 11
Property Damage: 6 years: LIA (Qld) s 10)
Jurisdiction: Qld, therefore Qld law will apply: QCC, CL
Onus: On the P throughout (Donoghue v Stevenson), specifically for damage: (CLA s 12) then
shifts to def for defences

Negligence: arises where the D owes the P a duty of care which the D breaches and the P
suffers damage because of the breach: Donoghue v Stevenson.

Existence of Duty of Care & Scope

Set A reasonably competent ..
Manufacturer Consumer: Donoghue v Stevenson.
Scope of duty: to prevent injury to a consumer when it is reasonably foreseeable that they would
use the manufactured goods (as per Lord Atkin in relation to not injuring neighbour/who is
considered neighbour principle).
Occupier of land person entering land: Australian Safeway Stores v Zaluzna
Scope of duty: to persons entering premises in respect of risks of physical injury arising from the
condition of the premises (per Mason, Wilson, Deane and Dawson JJ).
Employers Employees: Smith v Charles Baker & Sons.
Scope of duty: to provide employee with a safe system of work, safe plant and equipment and
competent supervisory staff. It does not matter whether a risk is known and not objected to
(although this may affect whether there was any contributory negligence).
Drivers passengers/other road users: Imbree v McNeilly
Scope of duty: All drivers owe passengers and others on the road a duty to take reasonable care
to avoid injury.
Road user/other road users: avoiding excessive speed, keeping proper lookout
Bourhill v Young
Doctor Patient: Rogers v Whittaker
Scope of duty: to provide the ordinary skill of a doctor practising in the relevant field in the
provision of diagnosis, treatment and advice (at [8]).
School authorities/teachers Students: Geyer v Downs
Scope of duty: to take such precautions for safety on the occasion in question as a reasonable
parent would have done in the circumstances. School hours may extend outside of establishes 9-
3 if school is opened/student knowing arrive before or leave later (at [5]).
Solicitor Client: Heydon v NRMA Ltd.
Scope of duty: to exercise reasonable care, skill and diligence in the provision of their services as
defined by the terms of their retainer.

Breach of Duty: (1) Relevant Standard of Care

1. Relevant Standard (Qn of law) Objective Test: Glasgow Corp v Muir

(i.e. what would a reasonable person have done in the situation?) - not a question of whether
the D as an individual acted reasonably, but rather what would a reasonable person have
done in that situation taking into account all the circumstances of the case.

2. However, in the circumstances of the case the following characteristics may affect what
standard a reasonable person would owe:
Old age and physical infirmities: Roberts v Ramsbottom

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Mental infirmities: Adamson v Motor Vehicle Insurance, Ds knowledge (actual or

constructive) of Ps circumstances: Paris v Stepney Borough.
Childhood (standard of same age, intelligence and intellect: McHale v Watson; test still
remains objective: Tucker v Tucker
Knowledge - judged at time of negligence: Dwan v Farquhar
Skill (if it is held out as having a skill standard of care matches that e.g. surgeon
Rogers v Whitaker; if by actions, if not words, you hold yourself to have a skill:
Papatonakis v Australian Telecommunications Commission. Inexperience/lack of skill
no excuse.
Learner Drivers: There is nothing so exceptional in the relationship between a learner
driver and a supervising passenger so as to call for a special duty of care: Imbree v
McNeilly (overrules Cook v Cook where lower standard of care).
3. In the circumstances of the case Ps characteristics may decrease or increase Ps skill or
knowledge, however must be exceptional circumstances e.g. screaming out before accident:
Bus v Sydney City Council

Breach of Duty: (2) Was the Standard Breached?

Qn of Fact s 9 CLA - Calculus of Negligence Wyong SC v Shirt not far-fetched or fanciful

1. Was the risk foreseeable? CLA, s 9(1)(a)

Test: if not too farfetched or fanciful than it is reasonably foreseeable: Wyong
Shire v Shirt
Must be reasonably foreseeable that the kind of carelessness by the D would
cause damage of some kind to the P: Tame v NSW
Most risks are foreseeable once they have eventuated: Nagle v Rottnest Island
Authority.
2. Was the risk of harm not insignificant? CLA s 9(1)(b)
More than far-fetched or fanciful. If clear risk then clearly not insignificant:
Drinkwater v Howarth.
A risk that is significant enough in a practical sense: NSW v Fahy
(If car situation there is always a risk of serious injury or death)
3. What would a reasonable person do in response to the risk? CLA s 9(1)(c)
Probability of Risk: CLA s 9(2)(a)
i. Precautions to be taken proportional to risk of harm. If risks are minimal
than may not be necessary to take precautions: Bolton v Stone.
ii. time to assess the risk = at the time the events occur: Roe v Minister of
Health
Likely seriousness of harm: CLA s 9(2)(b)
i. Magnitude or gravity proportionate to precautions to be taken: Paris v
Stepney Borough.
ii. e.g. In any road use situation, the risk involved carries the potential at least
for extremely serious injury and/or death
Burden of taking precautions (practical alternatives): CLA s 9(2)(c)
i. Cost, convenience, difficulty versus risk: Caledonian Collieries v Spears.
Practicality depends upon case and must be reasonable: Woods v Multi-
Sports Holdings.
ii. However, Ds financial position irrelevant: PQ v Red Cross.
iii. Dealing with risk in different way doesnt necessarily affect liability; doing
something different after risk eventuated doesnt mean D. is admitting
liability: CLA s 10
4. Social Utility (will not always address): CLA s 9 (2)(d)
Emergency situation: Daborn v Bath Tramways.
How beneficial was Ds conduct in terms of overall benefit to the community? Was
there a social good that justifies breach?

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The saving of life or limb justifies taking considerable risk: Watt v Hertfordshire
County Council.
Cth v Winter proper objective (erecting a police blockade) did not excuse
hazardous behavior)
5. Other relevant considerations (to be weighed up by court):
Professional Standards negligence is decided by the courts, not professions or
industries: Mercer v Commissioner for Road Transport & Railways.
i. For doctors CLA s 21
1. Dr does not breach a duty owed to a patient to warn of risk, before
the patient undergoes any medical treatment (or at the time of being
given medical advice) that will involve a risk of personal injury to the
patient, unless the doctor at that time fails to give or arrange to be
given to the patient the following information about the risk: s 21(1)
2. information that a reasonable person in the patients position would,
in the circumstances, require to enable the person to make a
reasonably informed decision about whether to undergo the
treatment or follow the advice: 21(1)(a)
3. information that the doctor knows or ought reasonably to know the
patient wants to be given before making the decision about whether
to undergo the treatment or follow the advice: 21(1)(b)
4. patient, includes a person who has the responsibility for making a
decision if the patient is under a legal disability. (underage,
disabled, etc) e.g. parent for infant child
ii. Professional does not breach a duty arising from the provision of a
professional service if they acted in a way that (at the time the service was
provided) was widely accepted by peer professional opinion by a significant
number of respected practitioners in the field as competent professional
practice: s 22(1)
1. However, peer professional opinion can not be relied on for the
purposes of this section if the court considers that the opinion is
irrational or contrary to a written law: s 22(2)
2. The fact that there are differing peer professional opinions widely
accepted by a significant number of respected practitioners in the
field concerning a matter does not prevent any 1 or more (or all) of
the opinions being relied on for the purposes of this section: s 22(3)
3. does not have to be universally accepted to be considered widely
accepted: s 22(4)
4. section does not apply to giving of (or the failure to give) a warning,
advice or other information, in relation to the risk of harm to a
person: s 22(5)
Customary Standards breach of statutory standards to be taken into account but
not necessarily conclusive of breach of duty of care: Tucker v McKann.
E.g. Drink driving is illegal, therefore stat standards not CL. This relates to
statutory standards and makes the case for negligence even stronger. Although
again, this is only evidence, not determinative of negligence.
Anticipation of other carelessness
i. Employer anticipating carelessness of employee: McLean v Tedman.
ii. Cannot anticipate everything: Derrick v Cheung.
iii. Where D expected to keep a look out for P. such as children, bad drivers,
road workers etc and drive defensively: Bus v Sydney City Council.
6. Overall, was the duty breached?
e.g. After balancing these considerations, most factors point to a breach of the standard of
care in the prevailing conditions.

Damage
1. Damage recognised at law?

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a. Personal injuries, property damage, PEL: Bennett v Minister for Community Welfare.
b. Nervous shock must be diagnosis as psychiatric illness not anxiety: Coates v SGIO.
c. Loss of opportunity where there are pure economic loss cases. Not in medical
negligence: Chappel v Hart. *Consider Rufo v Hosking - the NSW Court of Appeal
accepted that a loss of chance of a better medical outcome was recognised damage
for the purpose of a negligence action (as long as the chance was material/substantial
[i.e. greater that 1%] and caused by D), Therefore alternative may be open to P here
re. claim that on the BoP the Ds failure to warn of the risks caused <pl> to lose the
chanceHowever, Following recent HC decision in Tabet v Gett courts more likely to
follow the approach in Chappel v Hart, such that Pls damage would be e.g. actual
physical loss rather than any lost chance of avoiding it.
d. Where illegality (S v Superclinics; Vievers v Connolly), policy reasons, or harm to
vague to assess (Calverlys case, Roberts v Roberts), this is not recognised.

Onus: On P to establish on BOP to prove any fact relevant to the issue of causation. CLA s 12

2. Factual causation
a. Is there causation in fact?
i. Question of fact
ii. Whether breach of duty was a necessary condition of the occurrence of the
harm CLA s 11(1)(a) will be satisfied if CL but for (would the P have suffered
harm but for the Ds breach) test is satisfied because then the defs breach is a
necessary condition of the occurance of the harm: Zanner v Zanner (policy that
potentially leathal machines (cars) should eb driven with due care).
iii. CL but for test: March v Stramare
1. Ct needs to take into account ordinary notions of language, experience,
common sense and to make policy and value judgements
iv. If more than one event/cause
1. Identify all possible causes
2. Consider whether or not CLA s 11(1)(a) is satisfied: Strong; Zanner
3. If s 11(1)(a) cannot apply b/c too complex, consider s 11(2) in the case
of evidentiary gaps and apply the law from McGhee v National Coal
Board and/or Fairchild WHAT IS LAW? pearls notes
a. However, where two or more events combine to cause a
plaintiffs damage, the plaintiff still needs to establish that the
defendants negligence, which is argued to then make a
material contribution to the plaintiffs loss, was in fact a cause of
the loss: Amaca Pty Ltd v Ellis; Amaca Pty Limited v Booth.
v. Relevant for court to consider what the person who suffered harm would have
done if the person who was in breach of the duty has not been so in breach s
11(3) CLA
1. To be decided subjectively in light of all circs: s 11(3)(a) CLA
2. Except that any statement made by the person suffering the harm
about what he/she would have done is inadmissible except to the
extent (if any) that the statement is against his/her interest: s 11(3)(b)
CLA (Livingstone v Mitchells)
3. Differs from CL Chappel v Hart where they allowed it but this was
before the CLA
3. Damage within scope of liability? CLA s 11(1)(b), 11(4). Is Ps damage to remote a
consequence of the Ds breach of duty for D to be held responsible?
i. Question of law
ii. Is plaintiff one of a class of persons who might foreseeably be damaged by
defendants negligence?
iii. The damage suffered is of a kind that might foreseeably be caused by
defendants negligence? Injury must have been reasonably foreseeable
Wagons Mound No 2. It will be reasonably foreseeable if it would occur in the
mind of a reasonable man and would not be brushed aside as farfetched. Only

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need foresee injury of the type of general kind and not of the exact type of
injury and not necessary to foresee the precise manner in which it occurs.
iv. The victim is taken as found (egg-shell skull principle: Smith v Leech Brain &
Co
v. Indeterminate liability: Harvey v PD
vi. Legally significant cause of the harm suffered
1. Whether ct is justified in imposing liability on def: Ruddock v Taylor;
Chappel v Hart
2. Whether for some policy reason, a person responsible for that circ
should nevertheless be held not liable: State Rail Authority v Weigold;
Pledge v RTA;
vii. Intervening cause? (Ps act, Ds act or 3rd party etc) Novus Actus Interveniens
will only break the chain where:
1. They are voluntary;
2. They are causally so independent as to be termed coincidental;
3. As a matter of commonsense, and experience, they were not the cause
of the relevant loss or damage.
4. See Bennett v Minister, CLA ss 11(1)(b) and (4).
(eg Hirst v Nominal Defendant; Harvey v PD; March v E & MH
Stramare Pty Ltd; Bennett v Minister of Community Welfare; Haber
v Walker [1963] cf Lyle v Soc [2009]; Chapman v Hearse (1961);
Medlin v SGIC (1995); and Mahoney v J Kruschich (Demolition) Pty
Ltd (1985)). Likely thing to happen where cannot perform
occupation anymore, even though teaching thought he was doing a
fine job, he thought it was not good enough
4. Multiple tortfeasors? i.e. where damage is caused by more than one person
a. Joint concurrent tortfeasors where:
i. Vicarious liability
ii. Principle and agent
iii. Concerted or common action i.e. both responsible all: Thompson v ACTV
b. Several concurrent tortfeasors where:
i. Independent acts or omissions combine to produce same loss or damage:
Chapman v Hearse
c. Plaintiff may bring action against each or all of the concurrent tortfeasors who are
jointly and severally liable: LRA s 6.
d. Success against one tortfeasor does not act as a bar to bringing an action against
each other and each concurrent tortfeasor may seek contribution from the others: LRA
s 7.
e. Do not apply defence if pure economic loss or property damage and the breach
happened on or after 01.03.05 then proportionate liability applies: Ch 2 Pt 2 CLA
f. Proportionate liability for the plaintiffs loss depending upon what the defendant is
responsible for: CLA s 31. (Applies to breaches on or after 03.05 ss 4(3), 82)
i. Def only responsible for what is just and equitable: Reinhold v NSW Lotteries
Corp.
ii. Court can take into account liability of party not in proceedings in apportioning
damages
iii. Will not limit liability in relation to claims
1. By consumers: s 28(3)(b)
2. For personal injury: s 28(3)(a)
3. To a current wrongdoer who
a. contravenes Australian Consumer Law (Qld) s 18: s 32F
b. is fraudulent: s 32D
5. Conclusion for Damage.

Defences to Negligence

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N.B. Defences are not mutually exclusive and in some situations all three can be pleaded, eg
Gala v Preston

Limitation Periods: if a cause of action (in negligence or otherwise) is brought outside of a

statutory limitation period, then this fact might also act as a defence. In these circumstances the
cause of action is said to be statute barred unless the plaintiff is able to avail him or herself of the
extension provisions of the particular statute of limitation.
In Qld the limitation period for bringing a personal injuries action is 3 years (LIAs 11) and for
property damage, 6 years (s 10(1)(a)).
An extension of time is only available in relation to a personal injuries action (s 31) and in very
particular circumstances: see generally McGlone and Stickley, Chapter 14.
Also specific procedural time limits such as those under the Personal Injuries Proceedings Act
2002 (Qld),

1. Contributory Negligence
a. A P is guilty of contributory negligence when the P exposes himself or herself to a risk
of injury which might reasonably have been foreseen and avoided and suffers an
injury within the class of risk to which the Plaintiff is exposed: Josslyn v Berryman
b. Defendant to prove:
i. plaintiff negligent/at fault, i.e. failed to act reasonably: CLA s 23
1. Question of fact
2. standard of care = reasonable person in that position e.g. reasonable
driver
ii. loss suffered was a reasonably foreseeable consequence of the plaintiffs
failure to act reasonably: Gent-Diver v Neville. e.g. It is reasonably foreseeable
that if you do not wear a seat belt while in a motor vehicle and there is an
accident that you will suffer P.I.
iii. The plaintiff by failing to act reasonably contributed to or caused their loss:
Fitzgerald v Penn.
c. Partial defence but plaintiffs damages can be reduced by up to 100%: CLA s 24.
d. LRA s 10(1): apportionment of fault and reduction in damages on the basis of what the
court thinks is just and equitable.
i. Compare D and Ps conduct to assess culpability Pennington v Norris (HC
reduced contributory negligence assessment from 50% to 20% - Negligence of
D in high degree more culpable than P)
ii. The whole conduct of each negligent party in relation to the circumstances of
the accident must be subjected to comparative examination: Podrebersek v
Australian Iron & Steel Pty Ltd
iii. 100% Contributory Negligent CLA s 24 - At CL Wynbergen v Hoyts Corp Pty
(Jury found P negligent in taking care of own safety 100% - HC outcome
cannot be justified as just and equitable having regard to the claimants share
in the responsibility for the damage for it is an outcome which holds the
claimant wholly responsible, not partly so.)
2. Intoxication CLA presumption of Contributory Negligence ONUS ON D
a. Apply one of the following:
i. Where P intoxicated: CLA s 46.
1. Automatic reduction in damages of 25%: s 46(4)
2. BAC of 0.15 or more then red in damages at least 50% s 46(5)
3. Can be rebutted if intoxication did not contribute to injury or if
intoxication not self-induced: s 46(3)
ii. Where P relies on intoxicated person: s 48 and 48(2)
1. Automatic reduction in damages of 25%: s 48(4)
2. Can be rebutted if intoxication did not contribute to injury or they could
not reasonably be expected to have avoided risk of injury: s 48(3)
iii. Where D was driver and intoxicated (P relied upon) in s 48: min reduction of
damages is 50%: s 49(2)
3. Volenti Non Fit Injuria

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a. Complete defence
b. Voluntary assumption of risk is a complete defence to a negligence action: ICI v
Shatwell.
i. May be implied acceptance: Insurance Commissioner v Joyce.
c. At CL D must prove P:
i. was fully aware of risk involved;
ii. fully comprehended the nature and extent of risk; Knowledge of risk
subjective test
1. Not sufficient to allege P aware of inherent risks of the activity: Rootes
v Shelton
2. CLA s 14: if risk is obvious risk, the P is taken to have been aware
a. obvious risk a risk that would have been obvious to a
reasonable person in that position: CLA s 13
b. Fallas v Mourlas (obvious risks in dangerous recreational circs)
s 19
c. Presumption may be rebutted
d. No proactive need to warn of obvious risks: CLA s 15.
3. Appreciated Risk
a. person is aware of the risk if the person is aware of type or kind
of risk, even if not aware of the precise nature, extent or manner
of occurrence of the risk: s 14(2) CLA
iii. Voluntarily accepted the whole of the risk.
1. Physical risk i.e. risk of injury
2. Legal risk i.e. no reasonable care will be taken. Equiv to concluding
that the D owed that P owed no duty of care: Imbree v McNeilly
3. May be implied in limited circumstances: ICI v Shatwell (P and his
brother experienced shot firers employed at Ds quarry. In flagrant
disregard of others and safety regulations they allowed themselves to
be blown up. P argued employer vicariously liable for neg of dead
brother. D argued P was volens)
4. Sport (Rootes v Shelton (D driving boat towing P and another. Due to
Ds neg the P collided with a stationary boat); Canterbury Municipal
Council v Taylor (cyclists training and touch football game in
velodrome); Leyden v Caboolture Shire Council (P injured riding on
BMX Track, volenti established as he was fully aware of the risk he ran
and voluntarily incurred it))
d. No liability for materialisation of inherent risk (i,e. cannot be avoided by reasonable
care and skill): CLA s 16.
e. Dangerous recreational activity for enjoyment, relaxation or leisure: CLA s 18.
Defendant is not liable where harm is suffered by plaintiff in materialisation of an
obvious risk in a dangerous recreational activity: CLA s 19.
f. There are very few successful cases of volenti at CL (see for example of successful
case Leyden v Caboolture Shire Council
g. N.B. if a P relies upon an intoxicated defendant, s 48(5) of the Act provides that the
defence of volenti cannot be raised - instead, contributory negligence is presumed.
4. Illegality
a. Joint Illegal enterprise: Gala v Preston.
i. Complete defence
ii. Are the plaintiff and defendant voluntarily involved together in an illegal or
criminal act and plaintiff injured as a result of the joint involvement?
iii. Can be a true defence or may extinguish the duty of care: Jackson v Harrison.
iv. Operation based upon public policy considerations that the law should not
recognise that the P has any rights to recover damages where the P were
involved together as accomplices in an illegal activity.
Whether it should apply depends upon public policy (i.e. criminal activity
versus harm). Miller v Miller (A stole car, R drove it. A asked to be let out.
R crashed car due to neg - HCA regard must be had to the statute in

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creating the offence probable consequence of illegal use of vehicle is

dangerous driving, any passenger complicit in the offence also complicit in
the dangerous driving and it would be incongrous to decide that the
offender who drove the vehicle owed that passenger a duty to drive with
reasonable care)
b. Illegal activity
i. Criminals not to be awarded damages. CLA s 45
ii. Applies only if plaintiff involved alone in indictable offence: CLA s 45(1)(a).
iii. Plaintiffs conduct must contribute materially to the harm: CLA s 45(1)(b).
iv. If successful P may get no damages at all or if harsh/unjust the P can get
damages but must be reduced min 25%: s 45(2)-(3)
5. Other defences under the CLA
a. Volunteers acting in good faith carrying out work for a community organisation will not
be held liable for any act or omission: CLA s 39. Not paid any money (s 38), not acting
outside organisations activities (s 41).
b. Professional acted in a way that was widely accepted by peer professional opinion by
a significant number of respected practitioners in the field as competent professional
practice: CLA s 22 - Considered as a defence in NSW. You consider it in breach after
working through CLA s 9
c. No liability for prescribed entity or person working for prescribed entity providing first
aid or medical assistance if done in good faith and without reckless disregard in an
emergency: CLA ss 26 and 27 CLA Schs 1 and 2 prescribe the entities providing
services to enhance public safety
d. No liability for materialisation of inherent risk: s 16 CLA
i. Does not operate to exclude liability in connection with a duty to warn of a risk:
s 16(3)
e. No liability for P.I suffered from obvious risks of dangerous recreational activities: s 19
CLA
6. Conclusion about defences.

Remedies
Compensatory damages will be awarded to place the claimant in the position he/she would have
been had the tort not taken place. (Indemnity principle: Admiralty Commissioners v SS Valeria)
Any loss or harm compensated for must that which is reasonably foreseeable and not too remote
(i.e. only that covered in damage).

CASES

DUTY

Imbree v McNeilly (2008) 236 CLR 510

FACTS An unqualified and inexperienced driver, permitted by his supervising passenger to drive, lost control of
the vehicle and it overturned. The supervising passenger was seriously injured and sued the driver for
damages. Judgment was given for the plaintiff but damages were reduced by 30 per cent on account of his
contributory negligence. The Court of Appeal allowed in part both an appeal by the defendant and a cross-
appeal by the plaintiff and increased the reduction in damages on account of contributory negligence. The
Court of Appeal held that it was bound by Cook v Cook (1986) 162 CLR 376 to hold that actions which are
fairly to be seen as the result of a learner drivers inexperience and lack of qualification rather than as
having been caused by superimposed or independent carelessness did not, of themselves, constitute a
breach of the duty of care the learner driver owed to a licensed driver who was supervising the learner.
DECISION: Held by Gleeson CJ, Gummow, Kirby, Hayne, Crennan and Kiefel JJ, Heydon J expressing no
opinion, allowing the appeal, that the standard of care which the driver owed the supervising passenger
was the same as that owed by any other person driving a motor vehicle, to take reasonable care to avoid
injury to others, and was not to be qualified by the drivers inexperience or unlicensed status.( Cook v Cook
(1986) overruled.) Heydon J would have allowed the appeal on the ground that the judge's conclusion that
there had been actionable negligence which could be supported without overruling Cook v Cook. Decision

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of the Supreme Court of New South Wales (Court of Appeal): McNeilly v Imbree (2007) 47 MVR 536,
reversed.

Wyong SC v Shirt (1979-1980) 146 CLR 40 (Mason Js judgment only)

FACTS: D, (the Council) dredged a channel in a lake to give access to boats to deeper parts of the lake for
water skiing, and erected Deep Water signs along the channel. P, an inexperienced water skier, became a
paraplegic when he fell off his skis in shallow water, near one of those signs. The NSW Court of Appeal
affirmed the finding of negligence against D in relation to the sign.
ISSUE: The HCA, in refusing leave to appeal, discussed the question of foreseeability.
DECISION: In deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself
whether it could be foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons
including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a
reasonable man would do by way of response to the risk (per Mason J, Stephen and Aickin JJ concurring)

Rogers v Whitaker (1993) 175 CLR 479

FACTS: P successfully sued D following an eye operation, alleging D failed to warn P that she might develop a
condition known as sympathetic ophthalmia in her eye as a result of the surgery, which she did, leaving her
almost totally blind.
ISSUE: Whether the duty to warn had been discharged adequately.
DECISION (dismissing the appeal): Except in the case of an emergency or where disclosure would prove
damaging to P, D had a duty to warn of the risks inherent in the treatment. The fact that a body of other
reputable doctors would have acted in the same way as D did not preclude a finding of negligence.

Harvey v PD (2004) 59 NSWLR 639

FACTS: Appeal against decision of trial judge. Respondent and partner contemplating marriage and attended
joint consultation for the purpose of having blood tests to ascertain Human Immunodeficiency Virus
(HIV)/Sexually Transmitted Disease (STD) status. Respondent requested partner's results from clinic
receptionist and was informed only entitled to receive own report. Respondent's partner produced report
which showed tests for HIV and Hepatitis B negative. Respondent married partner and had a child.
Respondent contracted HIV and discovered partner's results showed HIV and Hepatitis B positive.
Respondent claimed appellants negligent in failing to take sufficient steps to enable discovery of partner's
results. Trial judge found appellants breached duty of care to the respondent in failing to take sufficient
steps to enable discovery that partner was HIV positive. Appellants appealed on basis of statutory
confidentiality under s 17 of (NSW) Public Health Act 1991 prohibiting disclosure of test results without
consent.
ISSUE: Whether duty of care owed to respondent breached.
DECISION (Appeal dismissed): Duty of care breached by first appellant in failing to address the issue of mutual
disclosure in the course of initial consultation.

Woods v Multi-Sport Holdings (2002) 208 CLR 460

FACTS: A player was struck in the eye by the ball when batting in a game of indoor cricket. He suffered serious
injury and sued the owner/operator of the facility at which the game was played. It was not disputed that D
owed a duty to take reasonable steps to avoid the risk of injury to players arising from the dangers involved
in playing indoor cricket. The P contended that the defendant was in breach of that duty in failing to warn
him or to display signs warning of the dangers of the game, in particular of the risk of serious eye injury,
and in failing to provide him with eye protection equipment. Indoor cricket is played in a confined space
between teams of eight players under rules set by a national association. No helmets have been designed
specifically for the game; it is not normal practice for players to wear helmets; and the rules allow them to
be worn only when a player who has a special medical condition is permitted to do so by the umpire.
Evidence was given that helmets had not been accepted as equipment for indoor cricket because there
were aspects of the game which people might reasonably regard as making them unsuitable or, perhaps,
dangerous. The trial judge found that the D had not been negligent.
DECISION: Held, (1) by Gleeson CJ, Hayne and Callinan JJ, McHugh and Kirby JJ dissenting, there were no
grounds for rejecting the judge's finding (a) that the defendant's duty of care did not require it to provide the
plaintiff with a helmet that would have protected him against the risk of injury to his eyes; or (b) that the risk

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of a player being struck was so obvious that reasonableness did not require the defendant to warn players
about the specific risk of eye injury.
The use of figures compiled by the ABS as facts within judicial notice to assist the court defining the scope or
validity of a rule of law considered by McHugh and Callinan JJ.
Decision of the Supreme Court of Western Australia (Full Court), affirmed.

Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330
FACTS: A teenage boy suffered partial paraplegia as a result of diving head first from a bridge into an estuary
bed. Diving from the bridge was a widespread and longstanding practice which had not previously caused
injury. A roads authority exercised powers of construction, maintenance and control over the bridge,
together with a shire council. The authority and council had erected signs prohibiting diving from the bridge.
The diver understood the signs and knew that the estuary contained channels of variable depths and a
sandbar of shifting dimensions.
DECISION: Held, by Gummow, Callinan and Heydon JJ, Gleeson CJ and Kirby J dissenting, that the authority
had discharged its duty of care. Its obligation was not to prevent harm, but only to exercise reasonable care
to make the bridge safe for users exercising reasonable care for their own safety. While the risk of injury
was reasonably foreseeable, the probability of injury occurring was low. The erection of the signs was a
reasonable response to the foreseeable risk.:
Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48; Brodie v Singleton Shire Council (2001) 206 CLR
512 at 581, applied.
Nagle v Rottnest Island Authority (1993) 177 CLR 423; Vairy v Wyong Shire Council (2005) 223 CLR 422; New
South Wales v Fahy (2007) 232 CLR 486; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22,
referred to.

McHale v Watson (1964) 11 CLR 384

FACTS: A boy of 12 years threw a sharpened piece of steel rod at a post. The projectile hit P, a girl of 9
years and destroyed the sight of her right eye. On the allegation of negligence, Windeyer J (at first
instance, in the 1964 proceedings) held that he was not required to disregard altogether the fact that D
was only 12 years of age when deciding the standard of care of the reasonable man to be applied in
this instance. P appealed from the judgement for D arguing that the standard of care to be exercised
did not differ from that of an adult.
ISSUE: Whether Ds age was relevant to the standard of the duty of care
DECISION (on appeal): It was appropriate for the trial judge to consider Ds age in determining the
standard of care to be applied, and the decision of Windeyer J at first instance not to disregard such
fact did not amount to a misdirection in law. Kitto J went on to state: it is the standard to be expected of
a child, meaning an ordinary child of comparable agenot that which is to be expected of an adult.

DAMAGE

Harvey v PD (2004) 59 NSWLR 639

FACTS: Appeal against decision of trial judge. Respondent and partner contemplating marriage and attended
joint consultation for the purpose of having blood tests to ascertain Human Immunodeficiency Virus
(HIV)/Sexually Transmitted Disease (STD) status. Respondent requested partner's results from clinic
receptionist and was informed only entitled to receive own report. Respondent's partner produced report
which showed tests for HIV and Hepatitis B negative. Respondent married partner and had a child.
Respondent contracted HIV and discovered partner's results showed HIV and Hepatitis B positive.
Respondent claimed appellants negligent in failing to take sufficient steps to enable discovery of partner's
results. Trial judge found appellants breached duty of care to the respondent in failing to take sufficient
steps to enable discovery that partner was HIV positive. Appellants appealed on basis of statutory
confidentiality under s 17 of (NSW) Public Health Act 1991 prohibiting disclosure of test results without
consent.
ISSUE: Whether duty of care owed to respondent breached.
DECISION (Appeal dismissed): Duty of care breached by first appellant in failing to address the issue of mutual
disclosure in the course of initial consultation.

Hirst v Nominal Defendant [2005] 2 Qd R 133

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FACTS: Appeal against trial judge's decision allowing claim against nominal defendant. Plaintiff lost control of
vehicle. Collision with another vehicle. Plaintiff on-duty police officer. Accident occurred during high-speed
chase with unidentified vehicle. Speeds of up to 180 kph. Single carriageway highway. Trial judge found
driver of unidentified vehicle negligent subject to one third contributory negligence. Whether error in
assessment of liability.
ISSUE:
DECISION: Held: Appeal dismissed. No error demonstrated.

Pledge v RTA & Ors (2004) 205 ALR 56

FACTS: Negligence Causation Apportionment of liability Motor vehicle accident Appeals from decision
of New South Wales Court of Appeal reversing trial judge's findings on liability in negligence for injuries
suffered in motor vehicle accident. Plaintiff struck by car while crossing road from median strip bisecting
road. Median strip maintained as nature strip with thick vegetation. At time of accident, second car turning
into road from nearby parking bay constructed at 90 degree angle to road. No signage to indicate
dangerous traffic area. Roads and Traffic Authority (RTA) responsible for design of road and nature strip.
Blue Mountains Council (council) responsible for maintenance of nature strip and design of parking bays.
Trial judge personally viewed and drove along site of accident prior to judgment. Trial judge found: driver
negligent in travelling at excessive speed and failing to keep proper watch; RTA and council negligent in
design, construction and maintenance of median strip; council additionally negligent in supplying 90 degree
angle parking bays and in failing to provide warning sign.
Court of Appeal reversed several findings of trial judge, concluding that: failure to clear vegetation not causative
of collision; driver's vision not obscured for significant distance before collision; presence of warning sign
would not have caused driver to drive differently; provision of 90 degree angle parking bays not causative
factor in collision.
ISSUE 1: Whether calculations cited by Court of Appeal reliable. Whether causative negligence in failure to
provide warning sign. Whether causative negligence in provision of 90 degree angle parking bays.
DECISION: Held, allowing the appeals and remitting the proceedings to the Court of Appeal to determine
outstanding issues and reapportion liability (5:0):
(i) The Court of Appeal erred in concluding that the vegetation provided no obstruction to drivers or pedestrians
in reliance on its own calculations, based on estimates and speculation, as to time, speed and distance.
None of the calculations had been relied on by any of the parties during the trial, at which stage they could
have been properly examined.
(ii) The Court of Appeal was correct to find no causative negligence in the failure to provide a warning sign.
Expert evidence suggested there was no warrant for a sign. In any event, the driver was already familiar
with the road and that knowledge made no difference to his driving.
(iii) The Court of Appeal was correct to find no causative negligence in the provision of 90 degree angle parking
bays. The bays did not comply with the recommendations of the relevant Australian Standard, but the
hazard created was not out of the ordinary. There was no evidence that the driver's attention would not
have been distracted had the parking bays been parallel to the road.
ISSUE 2: Whether Court of Appeal erred in preferring own observations drawn from photographic evidence
over evidence accepted by trial judge. Whether Court of Appeal gave sufficient weight to trial judge's
advantage of having personally viewed site of accident.
DECISION: Held, allowing the appeals (5:0):
(i) The Court of Appeal erred in concluding that the vegetation provided no obstruction to drivers or pedestrians
based on its own observations of photographic evidence over and above the oral evidence of four
witnesses as accepted by the trial judge.
(ii) The Court of Appeal erred in failing to have sufficient regard to the utility of the trial judge's experience of
inspecting the site of the accident, particularly the enhanced utility under (NSW) Evidence Act 1995 s 54.

Ruddock v Taylor (2003) 58 NSWLR 269

FACTS: A person's visa was cancelled on two separate occasions pursuant to s 501 ofthe Migration Act 1958
(Cth), which enables the Minister to cancel a visa inspecified circumstances. Section 15 of the Migration Act
1958 (Cth) provides thata person whose visa is cancelled and who is in the migration zone becomes, on
cancellation, an unlawful non-citizen. Section 189 provides that an officer of thedepartment who knows or
reasonably suspects that a person in the migrationzone is an unlawful non-citizen, must detain the

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person. Pursuant to theseprovisions, the person was detained by officers of the department on each
occasionon which his visa was cancelled. Each time, the person was released by orders ofthe High Court
quashing the cancellation of his visa: the first time by consent, andthe second time on the basis that s 501
of the Migration Act 1958 (Cth) wasinvalid in its application to him.
ISSUE:
DECISION: (1) The Ministers who cancelled the visa were liable for the tort of falseimprisonment.
(a) The orders for certiorari made by the High Court operated retrospectively tothe dates of cancellation of the
visas, with the consequence that they rendered thedetention unlawful on each occasion. (275 [19][21],
282 [65], 285 [84])
(b) The Ministers' decisions to cancel the visa were the cause of the detention:
(i) (Per Spigelman CJ) There was the requisite element of directness betweenthe Ministers' decisions and the
detention; (276 [30][34])
Myer Stores Ltd v Soo [1991] 2 VR 597 at 629; Aitken v Bedwell (1827) Mood& M 68; 173 ER 1084, considered
and applied.
(ii) (Per Meagher JA) The Ministe' decisions were the real and proximate causeof the detention; (283 [72])
(iii) (Per Ipp JA) Causation in tort involves a factual question and a normativequestion. There was causation in
the factual sense because, but for the Ministers'decisions, there would not have been a detention. There
was causation in thenormative sense because of unlawful deprivation of personal liberty, and this is
something which it is the fundamental purpose of the common law to protect. (286[85][96])

Roads and Traffic Authority v Royal (2008) 245 ALR 653

FACTS: D was driving a car north along the Pacific Highway near Wauchope and struck a car driven by the
second respondent (the plaintiff) at a cross-intersection. P commenced proceedings in negligence against
the D and the RTA). A judge sitting in the District Court of New South Wales found the primary cause of
the collision was the Ds breach of his duty of care to the P. He gave judgment for the P for $871,019.50.
He did not find the appellant was in breach of its duty to the plaintiff. The defendant appealed to the Court
of Appeal of the Supreme Court of New South Wales. The Court of Appeal allowed the appeal against the
trial judges dismissal of the Ds cross-claim against the P. The majority considered that the P was in breach
of its duty of care in that, on the basis it knew there had been crashes at the intersection, it should have
moved a stop sign so as to improve the vision of drivers in the position of the P. It also said it should have
constructed a staggered T intersection and not a cross-intersection which was pregnant with avoidable
risk.
ISSUE: Whether a breach of duty caused the plaintiffs loss.
DECISION: Held, per Gummow, Hayne and Heydon JJ; Kiefel J (Kirby J dissenting), allowing the appeal:
(i) The plaintiff, from his stationary position at the stop sign, saw the defendants vehicle moving north along the
Pacific Highway: at [18][21], [130].
(ii) The majority of the Court of Appeal moved straight from a conclusion that the appellant was in breach of
duty to consideration of whether the defendants supervening conduct broke the chain of causation, without
first examining whether the chain of causation actually existed: at [27], [136].
Bennett v Minister for Community Welfare (1992) 176 CLR 408 ; 107 ALR 617 ; [1992] HCA 27, distinguished
(iii) The accident was not caused by any breach of duty by the appellant, but only by the negligence of the
defendant and the plaintiff. The design of the cross-intersection was irrelevant to the cause of the accident:
at [29], [136], [143].
Betts v Whittingslowe (1945) 71 CLR 637 ; [1945] HCA 31, distinguished
(iv) The reliance by the majority on a but-for test as a comprehensive causation test was erroneous:
at [32], [135].
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506 ; 99 ALR 423 ; 12 MVR 353 ; [1991] HCA 12, applied

Finch v Rogers [2004] NSWSC 39, [130-149]

Negligence Duty of care Breach of duty Causation
FACTS: Claim for damages for personal injury resulting from negligent medical treatment.
Defendant doctor treated plaintiff for testicular cancer.
Defendant doctor failed to refer plaintiff to oncologist for post-operative monitoring and care.
Plaintiff's testicular cancer re-emerged and spread.
Plaintiff required extensive chemotherapy treatment.

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Plaintiff suffered disabilities resulting from chemotherapy side effects.

Defendant admitted failure to refer plaintiff to oncologist constituted breach of duty.
Defendant denied breach of duty caused plaintiff's disabilities.
ISSUE: Whether defendant's breach of duty caused plaintiff's disabilities.
DECISION: Judgment entered for plaintiff. Defendant's breach of duty caused plaintiff's disabilities because
plaintiff would not have required extensive chemotherapy treatment if plaintiff's condition had been
adequately monitored.
Plaintiff's condition would have been adequately monitored if defendant had referred plaintiff to oncologist.

Damages Assessment Assessment of quantum Multiple injuries

FACTS: Assessment of damages for disabilities caused by negligent medical treatment.
Plaintiff's hearing loss and other disabilities resulted from side effects of chemotherapy.
Plaintiff intended to pursue career in music following graduation from university.
ISSUE: Whether plaintiff entitled to damages for future economic loss given that plaintiff had not commenced
musical career at time of injury.
DECISION: Damages assessed at $354,887.40.
Plaintiff entitled to damages for economic loss because plaintiff unable to pursue chosen career.

Damages Assessment Quantum of Damages Multiple injuries

FACTS: Injuries: High frequency hearing loss; Tinnitus; Hyperacusis; Depression
Cause: Negligent medical treatment
Circumstances: Male; Music student and musician; Diagnosed with testicular cancer; Received operation to
remove affected testicle; Not referred to oncologist by doctor; Cancer not properly monitored; Cancer grew;
Extensive course of chemotherapy required to treat resurgent cancer; Disabilities caused by chemotherapy
side-effects; Hearing loss; Constant ringing in ears; Painful sensitivity to ordinary noise; Unable to resume
further studies in music; Loss of enjoyment in music; Loss of social contacts in music industry; Unable to
work due to extreme sensitivity to sound; Peripheral nerve damage causing weakness and tingling in hands
and fingers; Unable to perform basic tasks such as turning on shower; Depression; Unable to interact
socially; Loss of long-term relationship; Poor prospects for recovery; Likely to require anti-depressant
medication for life.
DECISION: Non-economic loss: $269,150.00; Out of pocket expenses: $5,057.70; Interest on out of pocket
expenses: $253.43; Future domestic assistance: $55,000; Future medical expenses: $20,000; Psychiatric
medication: $,426.11; Total: $354,887.40.

Bennett v Minister of Community Welfare (1992) 176 CLR 408

FACTS: P, a ward of the State of Western Australia was injured in 1973 at the institution where he was in care
while using a saw without a proper guard. It was common ground that he was entitled and would have
sought to recover damages from the Minister of Community Welfare if he had known of such entitlement. It
was also accepted that the Director of Community Welfare was under a duty to obtain independent legal
advice for the ward about his right to recover damages. The Director failed to discharge that duty and the
right of action became statute-barred. Before the expiration of the limitation period the wardship ceased
and the former ward obtained legal advice. He was incorrectly advised he had no cause of action against
the Minister. After his action became statute-barred he received proper advice and sued the Minister for
damages in relation to the loss suffered by the Director's failure to obtain independent legal advice.
ISSUE:
DECISION (Appeal granted): Director's breach of duty was a causal factor which continued to operate until the
limitation period expired and was not superseded as the sole cause of the subsequent loss by the legal
advice obtained after the wardship ceased. Consequently the Minister was liable.

Chappel v Hart (1998) 195 CLR 232

FACTS: P underwent throat surgery at the hands of Dr Chappel without warning as to the possible
consequences should Ps oesophagus be perforated and infection set in. That was what happened and P
suffered paralysis of her right vocal cord and voice loss. Ps illness would inevitably have required surgery
and as such the surgery would have been subject to the same risk which eventuated. P argued that had
she been aware of the risk she would have taken steps to have it performed by the most experienced

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surgeon in the field (instead of D). P was awarded damages notwithstanding Ds submission that there was
no causal connection between the failure to warn of the risks and the damages suffered by P. Ds argument
was that the risk that which eventuated was ever present, no matter when or by whom the surgery (which
was inevitable) might be performed and therefore P did not lose a chance of any value as it was only the
loss of a chance to have the surgery performed by somebody else at some other time. On appeal:
ISSUE: Whether the duty to warn of the risks had a causal connection to the injuries sustained by P.
DECISION (dismissing the appeal): It was not disputed in this court that D was under a duty to inform P of the
possible consequences in the event of the perforation of her oesophagus, and that this duty was not
performed and that the risk eventuated. P had made very clear her concerns and had questioned the
surgeon. Failure to warn of the risk was one of the events leading to the damages sustained. Without that
failure the injury would not have occurred.

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506

FACTS: Where negligence is in issue, causation is essentially a question of fact to be answered by reference to
common sense and experience and one into which considerations of policy and value judgments
necessarily enter. The "but for" or causa sine qua non test is not a definitive test of causation.
So held, by Mason C.J., Deane, Toohey and Gaudron JJ.
Per McHugh J. Now that legislation allows liability for damage to be apportioned in accordance with what the
court thinks is just and equitable having regard to the comparative responsibility of the parties, the
preferable course is to use the causa sine qua non test as the exclusive test of causation.
Grant v. Sun Shipping Co. Ltd., [1948] A.C. 549; Davies v. Swan Motor Co. (Swansea) Ltd.; James, Third Party,
[1949] 2 K..B 291; Alford v. Magee (1952), 85 C.L.R. 437[PDF]; Fitzgerald v. Penn (1954), 91 C.L.R.
268[PDF]; Chapman v. Hearse (1961), 106 C.L.R. 112[PDF]; M'Kew v. Holland & Hannen & Cubitts, [1970]
S.C. (H.L.) 20; and Mahony v. J. Kruschich (Demolitions) Pty. Ltd. (1985), 156 C.L.R. 522,[PDF] ,
considered.
A driver was injured when his car ran into a truck which had been parked in a position where it straddled the
centre line of a six-lane road. The collision occurred at night, and the truck's parking and hazard lights were
illuminated. The driver was under the influence of alcohol and was driving at an excessive speed. In an
action by the driver of the car against the owner and driver of the truck, the trial judge found that the owner
and driver of the truck were negligent, but that the driver of the car was also negligent, and he apportioned
responsibility under s. 27a(3) of the Wrongs Act 1936 (S.A.) as to 70 per cent to the plaintiff and 30 per cent
to the defendants. On appeal it was held that the plaintiff's own negligence was the sole effective cause of
the accident, and the action was dismissed. On further appeal to the High Court,
Held, that the defendant's negligence was cause of the accident.
Per curiam. That an intoxicated driver, driving at excessive speed and failing to keep a proper look out, might
collide with the parked truck was the very kind of thing which was likely to happen if there was a want of
care on the part of the truck owner.
Decision of the Supreme Court of South Australia (Full Court): March v. Stramare (E. & M. M.) Pty. Ltd. (1989),
50 S.A.S.R. 588,[PDF] , reversed.

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, 440-44
FACTS: Section 2A of the Liquor Act 1982 (NSW) stated that the minimisation of harm associated with misuse
and abuse of liquor (such as harm arising from violence and other anti-social behaviour) was a primary
object of the Act and that all persons having functions under the Act were required to have due regard to
the need for liquor harm minimisation when exercising those functions. Other provisions of that Act required
a licensee not to permit on licensed premises any indecent, violent or quarrelsome conduct and permitted a
licensee or an employee of a licensee to refuse to admit to licensed premises, or to turn out, any person
who was then violent, quarrelsome or disorderly. Section 5A of the CLA 2002 (NSW) provided that Pt 1A of
that Act governed liability for damages for harm resulting from negligence. Part 1A included ss 5A-5D.
Sections 5B and 5C set out the principles for establishing that a breach of duty had occurred. Section 5B(1)
provided that a person was not negligent in failing to take (s against a risk of harm unless: (a) the risk was
foreseeable (that is, it was a risk of which the person knew or ought to have known), and (b) the risk was
not insignificant, and (c) in the circumstances, a reasonable person in the persons position would have
taken those precautions. Sub-section (2) provided that in determining whether a reasonable person would
have taken precautions against a risk of harm, the court was to consider the following (amongst other

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relevant things): (a) the probability that the harm would occur if care had not been taken, (b) the likely
seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility
of the activity that created the risk of harm. Section 5D set out general principles for establishing causation.
Section 5D(1) provided that a determination that negligence caused particular harm comprised the
following elements: (a) that the negligence was a necessary condition of the occurrence of the harm
(factual causation), and (b) that it was appropriate for the scope of the negligent persons liability to extend
to the harm so caused (scope of liability).Two customers of a licensed restaurant and function centre sued
the proprietor of the business for negligence in not having prevented their being seriously injured by
shooting by another customer. The incident occurred at a New Years eve function. A violent fight broke out
when a woman customer accused another of brushing her hand with a lighted cigarette. One man involved
in the fight was hit in the face, drawing blood. He left the premises and returned soon after with a gun. He
followed one customer into the kitchen and shot and wounded him. He went back to the restaurant area
and shot and wounded the customer who had previously hit him. There were no security personnel on the
premises.
ISSUE:
DECISION (Appeal granted): (1) that, particularly in the light of the liquor harm minimisation provisions of the
Liquor Act, the proprietor owed the plaintiffs a duty to take reasonable care to prevent injury to customers
from the violent, quarrelsome or disorderly conduct of other persons. (2) That the question of causation was
governed by s 5D of the Civil Liability Act. The element of factual causation was to be determined by asking
whether the harm would have occurred but for the negligent act or omission alleged (the "but for test"). It
had not been established on the balance of probabilities that but for the absence of security personnel to
act as crowd controllers, the shootings would not have taken place: the absence of security personnel was
not a necessary condition of the plaintiffs being shot.
Chappel v Hart (1998) 195 CLR 232, distinguished.
(3) That even if the presence of security personnel at the door might have deterred or prevented the person
who shot the plaintiffs from returning to the premises and even if security personnel on the floor might have
been able to intervene in the incident that broke into fighting in time to prevent injury to anyone, neither
matter was reason enough to conclude that this was an "exceptional case" within s 5D(2) where
responsibility for the harm should be imposed on the proprietor. To impose that responsibility would not
have accorded with established principles.
Per curiam. Whether a breach of duty of care occurred depended upon the matters set out in s 5B of the CLA,
in particular whether a reasonable person in the position of the proprietor would have provided security
personnel. Whether the provision of any and how many security personnel should have been provided
depended on the considerations identified by s 5B(2). Whether a reasonable person would have taken
precautions against a risk is to be determined prospectively. The answer in a particular case turns on the
facts of the case that are proved in evidence. Hence deciding the question of breach in these cases would
not establish any general rule about when or whether security personnel should be engaged by the
operators of licensed premises.

Amaca Pty Limited v Booth [2011] HCA 53

FACTS: The respondent was a retired motor mechanic who worked with brake linings for a 3-year period at his
job as a mechanic and was exposed to aspestos. He was also exposed to asbestos as a child and
teenager during home renovations and further as a young adult working as a truck driver but these three
exposures to asbestos were brief, in contrast to his sustained exposure to asbestos in his work as a
mechanic. Booth was diagnosed with malignant pleural mesothelioma and sued the manufacturers of the
brake linings in negligence, claiming they failed to warn him of the asbestos-related risks arising from the
use of the brake linings. First instance finding in favour of the respondant, holding that he had established
causation:
ISSUE: Factual causation
DECISION (Appeal dismissed): (per French CJ, Gummow, Hayne and Crennan JJ (Heydon J dissenting)
Per French CJ:
(i) It was open to the trial judge to infer factual causation and to accept the theory of cumulative effect in cases
of mesothelioma. The evidence before the Dust Diseases Tribunal was sufficient to support the conclusion
that the products of Amaca and Amaba caused Booths disease: at [6], [49], [51].
Per Gummow, Hayne and Crennan JJ:

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(ii) The epidemiological evidence alone allowed the inference to be drawn that cumulative exposure to asbestos
increased the risk of contracting mesothelioma. The fact that the epidemiological evidence did not establish
a statistically significant increase of risk for motor mechanics, as opposed to other occupations, does not
prevent an inference of causation being drawn where, apart from incidental exposures, the principal
exposure to asbestos was during Booths occupation as a motor mechanic: at [88].
(iii) It was open to the trial judge to determine that the epidemiological evidence specific to motor mechanics did
not prevent an inference of causation from arising and that cumulative exposure to asbestos caused
mesothelioma. The trial judges decision gave rise to a question of fact, not a question of law: at [90], [91].
Per Heydon J (dissenting):
(iv) The expert evidence relied upon by Booth does not support the view that all exposures to chrysotile
materially contribute to mesothelioma. It supported the finding that each exposure increased Booths risk of
contracting mesothelioma but this did not establish that each exposure caused Booths mesothelioma:
at [123], [127], [130], [133], [137][139].
(v) The trial judge impermissibly conflated increase of risk and causation: at [144].
(vi) The trial judge erred in finding that there was an overwhelming inference of causation: at [148].
(vii) The trial judge did not find that the but for test for factual causation was established: at [149].

DEFENCES

Miller v Miller [2011] HCA 9

FACTS: Appeal against decision of Supreme Court of Western Australia (WASC).
Appellant passenger and respondent driver illegally used stolen motor vehicle in contravention of (WA) Criminal
Code Compliance Act 1913 s 317A.
On two occasions appellant requested respondent to stop and let appellant out of vehicle. Respondent refused
to comply with requests. Lost control of vehicle causing crash in which appellant seriously injured. WA
District Court found respondent owed appellant duty to take reasonable care and drove recklessly in breach
of that duty. WASC found respondent owed appellant no duty of care upon basis that parties had engaged
in joint illegal enterprise.
ISSUE:
DECISION (Allowing appeal (6:1)):
(i) Per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ: The respondent owed the appellant a duty of
care at the time of the accident because the respondent withdrew from the common purpose of illegality
when she asked to be allowed to get out of the vehicle. Having communicated her withdrawal, there were
no reasonable steps the appellant could take to prevent the continued illegal use of the vehicle for the
purpose of s 8(2). Per Heydon J (dissenting): The appellant's request that the vehicle stop and that she be
let out by itself was insufficient to terminate the joint illegal enterprise. It could not be said that the appellant
took all reasonable steps to prevent the commission of the offence. Since the appellant had disabled
herself from taking reasonable steps as a result of her prior conduct, it was not open to the appellant to
contend that there were no reasonable steps she could have taken.
(ii) Per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (Heydon J agreeing): Before the appellant
withdrew from the joint criminal enterprise, the respondent owed no duty of care to the appellant. In a case
where two or more were complicit in the offence of illegally using a vehicle, the statutory purpose of the law
proscribing illegal use was not consistent with one offender owing a co-offender a duty to take reasonable
care. The inconsistency arose from the recognition that the purpose of the statute was to deter and punish
using a vehicle in circumstances that often led to reckless and dangerous driving.

Fallas v Mourlas [2006] NSWCA 32

FACTS: D accidentally shot his friend, P, in the leg while hunting kangaroos. At the time of the accident, the four
men were participating in an activity referred to as spotlighting or shooting kangaroos at night with the aid
of a spotlight. The men got into a vehicle and drove into the bush in search of kangaroo at around
10.30 pm. D was driving the vehicle and D sat in the front passenger seat. P agreed to hold the spotlight
and shine it out of the window of the vehicle while the other men shot. After about 5 to 10 minutes of
driving, two of the men got out of the vehicle and began walking in front while the vehicle followed them. At

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some stage the vehicle stopped and Mr Fallas climbed out of the vehicle with a handgun to join the other
men.
D returned to the vehicle still holding the handgun. P asked him not to come in to the vehicle with a loaded gun.
D gave repeated assurances that the gun was not loaded and that it was safe for him to enter the vehicle.
Once D was inside the vehicle, P once again asked him not to bring the gun inside the vehicle and to point
the gun outside. D began clocking [the gun] back and forward in an effort to un-jam it. As D was doing this
he pointed the gun towards Ps direction. There was then an accidental discharge of the gun resulting in P
being shot in the leg and suffering injury.
At trial, P contended that D was liable to him in negligence for the damages he had incurred. One of the
grounds on which D denied liability was that he was entitled to immunity under s 5L of the Civil Liability Act
2002 (NSW).
Quirk DCJ upheld Ps claim and found that D had been negligent. Her Honour was not satisfied that the activity
being undertaken at the time P was shot was a dangerous recreational activity as defined by s 5K.
Further, her Honour held that P did not suffer harm as a result of the materialisation of an obvious risk of a
dangerous recreational activity. Accordingly, her Honour concluded that s 5L did not assist D. Her Honour
handed down a verdict and judgement for P in the sum of $98,467.
ISSUE: Is spotlighting a dangerous recreational activity?
HELD per Ipp JA:
i. An objective test is required in determining whether, in terms of s 5K of the Civil Liability Act 2002 (NSW), a
recreational activity is dangerous.
ii. The word significant, in the expression significant risk of physical harm, lays down a standard lying
somewhere between a trivial risk and a risk likely to materialise.
iii. A significant risk that converts a recreational activity into a dangerous recreational activity may be an entirely
different risk from the risk (which may be obvious or not) that materialises. Thus, s 5L may be held to apply
where the significant risk (converting a recreational activity into a dangerous one) differs from the obvious
risk that materialises.
iv. The question of whether a particular activity may be dangerous should be determined by reference to the
particular activities engaged in by the plaintiff at the relevant time and to the actual circumstances giving
rise to the harm. This could require segmenting the particular activities the plaintiff was engaged in.
v. The activity that P was engaged in was sitting in the vehicle, holding the spotlight for the shooters outside, on
the basis that at various times one or more of the shooters might leave or enter the vehicle with guns that
might or might not be loaded. That limited activity is distinguishable and separate from the other activities,
which fall under the general description of shooting kangaroos by spotlight.
vi. In the particular circumstances of this case, there was a significant risk that one of the men, while leaving or
entering the vehicle as P was operating the spotlight, might handle a loaded gun in a negligent manner and
cause someone in the vehicle to get shot. Therefore, the activity P was engaged in carried a significant risk
of physical harm and was a dangerous recreational activity within the meaning of s 5K.
Held per Tobias JA:
i. Generally, for a risk to qualify as significant, it must have a real chance of materialising. For a risk to have a
real chance of materialising it must lie somewhere between a trivial risk and a risk likely to materialise,
although it is probably closer to the second than the first.
ii. In determining whether the relevant recreational activity involves a significant risk of physical harm, one must
identify that activity at a relatively detailed level of abstraction by including not only the particular conduct
actually engaged in by the respondent but also the circumstances which provide the context in which the
conduct occurs.
iii. Having regard to the circumstances of the case, particularly the inexperience of the participants and the
excitement and possible bravado involved in the shooting, the subject activity was clearly capable of
involving a significant risk of physical harm. Therefore, the subject activity was a dangerous recreational
activity within the meaning of s 5K.
Held per Basten JA:
i. The burden of proof in establishing a defence under s 5L falls on the defendant (Ipp JA agreeing).
ii. In the present case, once the activity was identified as shooting kangaroos at night, and the relevant risk was
identified as a wound caused by accidental discharge from a firearm, it is not possible to characterise a
person who merely holds a spotlight as not involved in the activity because they are not involved in the
actual shooting. It follows that the P was engaged in the recreational activity of shooting kangaroos at night.

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iii. In considering whether a risk of physical harm is significant the seriousness of the harm must be
considered. If the harm is potentially catastrophic a very low level of risk may be treated as significant. On
the other hand, where the harm is not serious at all, the risk may not be considered significant until it
reaches a much higher level.
iv. The phrase significant risk requires an objective test not dependent upon whether the plaintiff was aware of
the risks involved in a particular activity.
v. There are three possible ways of considering whether a risk is significant:
(a) assume that any risk will be significant because the results of it eventuating are likely to be catastrophic;
(b) draw an inference from statistical evidence; or
(c) examine the particular circumstances of the case.
Adopting the first approach would not reflect the statutory test set out in s 5K. The parties did not run their case
based on the other two approaches. Therefore, it has not been established that there was a significant risk
of injury from the accidental discharge of a firearm whilst shooting kangaroos at night, in the circumstances
in which the plaintiff was involved. Hence, it has not been established that the subject activity is a
dangerous recreational activity.
ISSUE: Was the risk that materialised an obvious risk?
DECISION: Held per Ipp JA:
i. In cases where the obvious risk is of being harmed by the conduct of a person, for s 5L to become relevant
the obvious risk must at least be of negligent conduct. Section 5L, therefore, may involve a plaintiff in
certain circumstances having to accept the risk of another person being negligent.
ii. The risk of a person being negligent in certain circumstances might be obvious, but in the same
circumstances the risk of a person being grossly negligent might not be obvious.
iii. Ds conduct comprised of groundless reassurances and persistent failures to take steps to ensure that there
would be no accident caused by the handgun, all in the face of Ps earnest requests to be careful. The
eventual shooting was gross negligence on the part of D. In the particular circumstances, the risk of P
being harmed by conduct as extreme as that of D did not constitute an obvious risk as defined by s 5F.
Held per Tobias JA:
i. To determine whether the harm suffered by P was the result of the materialisation of an obvious risk under s
5F requires regard to be had to the particular circumstances in which the harm was suffered and a
determination whether the risk which resulted in the harm would have been obvious to a reasonable person
in Ps position.
ii. In the current factual scenario it would have been apparent to a reasonable person in Ps position that the
conduct of D on re-entering the vehicle with his handgun (which may or may not have been loaded to his
knowledge) carried with it the risk of the gun being discharged causing serious harm.
iii. A reasonable person in Ps position should be taken on the probabilities to have been aware that Ds
reassurances, that the gun was not loaded and that it was safe, were unreliable given his continued
conduct in fiddling with his gun, which he had already indicated was jammed, within the confines of the
vehicle. Therefore, the risk was obvious within the meaning of the definition of that expression in s 5F. It
follows that D has satisfied the requirements of s 5L(1) and as a consequence is not liable in negligence for
the injuries that P sustained.
Held per Basten JA:
i. For s 5L to be engaged, at least one of the significant risks, which attend a particular recreational activity,
must materialise and result in the harm suffered by the P. Further, that risk must be an obvious risk within
the meaning of s 5F. These two elements must, to an extent, be treated together.
ii. The application of s 5L(1) will depend upon the level of particularity at which the circumstances are
identified and those aspects of the position of the plaintiff which are to be ascribed to the reasonable
person, for the purposes of the definition in s 5F(1).
iii. There must have been a risk that there was a bullet in the gun prior to its discharge, even though the
defendant assured the plaintiff that there was not. There was similarly a risk, which would have been
obvious to P that the gun may, through a careless act, be pointed at him. It follows that the risk which
materialised, namely the accidental discharge of the gun whilst pointed at P, was an obvious risk whatever
the knowledge, belief and circumstances which existed immediately prior to the discharge.
iv. The risk of an accidental discharge of the gun, whilst sitting in a vehicle, may be of a different order to the
risk of such an accident whilst participating in the shooting. While it may still be an obvious risk, it may have

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been too far removed from the activity to form part of it. The evidence to which the Court was taken left
doubt that the risk that materialised was a risk of the dangerous recreational activity.
SUMMARY OF FINDINGS
Held per Ipp and Tobias JJA (Basten JA contra):
a. The activity P was engaged in was a dangerous recreational activity within the meaning of s 5K.
Held per Ipp and Basten JJA (Tobias JA contra):
b. The risk that materialised did not constitute an obvious risk of the dangerous recreational activity as defined
in s 5F.
Held per Ipp and Basten JJA (Tobias JA dissenting):
c. The appeal should be dismissed with costs.
(NSW) Civil Liability Act 2002 ss 5F, 5K, 5L

Pennington v Norris (1956) 96 CLR 10

FACTS: P struck by motor car driven by D. Evidence indicated D drove at fast speed despite unfavourable
conditions while appellant failed to keep proper lookout. At first instance TasSC found negligent conduct on
part of both parties and thereby reduced damages payable by respondent by one-half. In determining the
extent to which damages recoverable by a plaintiff are to be diminished pursuant to s. 4 (1) of the
Tortfeasors and Contributory Negligence Act 1954 (Tas.) by reason of his share in the responsibility for the
damage a comparison is to be made of the respective degrees by which the conduct of the plaintiff and the
defendant has diverged from the standard of care of the reasonable man.
ISSUE: Amount of damages payable by the respective parties contributory negligence.
DECISION (Allowing appeal): D's driving at excessive speed given misty conditions amounted to negligence of
far greater significance than anything attributable to P. HCA thereby increased apportionment of damages
payable by D to 80%.

Lawyers - Legal Practitioners and the Legal Profession Act 2007 (Qld)

Under CL, solicitors owe their clients an established duty of care to exercise reasonable care in carrying out
their retainer: Heydon v NRMA Ltd (2000)
Reflected in
Legal Profession (Solicitors) Rule 2007 (Qld), rule 1
[a] solicitor must act honestly and fairly, and with competence and diligence, in the service of a client.
Legal Profession (Barristers) Rule 2007 (Qld), rule 16
notes that advocates in Australia are immune from suits of negligence: (Rondel v Worsely [1969]; DOrta
Ekenaike v Victoria Legal Aid (2005))

Legal Profession Act 2007 (Qld) s 3

states that the objectives of the Act include:
To provide for the regulation of legal practice in this jurisdiction in the interests of the administration of
justice and for the protection of consumers of the services of the legal profession and the public generally.
Ch 4 of the Act provides for discipline of the legal profession and aims to promote and enforce the
professional standards, competence and honesty of the legal profession: s 416. The key concepts of Ch 4
are:

Unsatisfactory professional conduct, defined in s 418 as:

Conduct of an Australian legal practitioner happening in connection with the practice of law that
falls short of the standard of competence and diligence that a member of the public is entitled to expect of a
reasonably competent Australian legal practitioner.
Professional misconduct, defined in s 419 to include:
(a) Unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a
substantial or consistent failure to reach or keep a reasonable standard of competence and diligence; and
(b) Conduct of an Australian legal practitioner, whether happening in connection with the practice of law or
happening otherwise than in connection with the practice of law that would, if established, justify a finding
that the practitioner is not a fit and proper person to engage in legal practice.

If a solicitor acts without competence and diligence (that is, unsatisfactory professional conduct), they may
be liable to their client in negligence for breaching their duty of care. Such conduct may also expose the
solicitor to a complaint being made, for example, by a client or a regulatory body, to the Legal Services
Commissioner about the conduct of an Australian legal practitioner: s 429.

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A complaint may be made about a legal practitioners conduct or the conduct of a law practice employee: s
428. The complaint may be investigated by the Queensland Law Society upon referral by the Legal
Services Commissioner: s 435. Depending upon the seriousness of the complaint, the matter may go
before the Queensland Civil and Administrative Tribunal (QCAT) (for more serious cases) or the Legal
Practice Committee. Section 456(1) provides:

If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an
investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner is
guilty of unsatisfactory professional conduct or professional misconduct, the tribunal may make any order
as it thinks fit, including any 1 or more of the orders stated in this section.
The orders that the tribunal may make are listed in the section and include, for example:
An order recommending that the name of the Australian legal practitioner be removed from the
local roll;
An order that the practitioners local practising certificate be suspended for a stated period or
cancelled;
An order that the Australian legal practitioner pay a penalty of a stated amount, not more than
$100000;
A compensation order (defined in s 464 to include an order that the legal fees may not be
recovered against the complainant, that specific work be carried out without the charging of any
fee, and that compensation be paid for pecuniary loss suffered by the complainant from the
unsatisfactory professional conduct or professional misconduct);
An order that the practitioner undertake and complete a stated course of further legal education;
An order that, for a stated period, the practitioner engage in legal practice under supervision as
stated in the order;
An order that the practitioner do or refrain from doing something in connection with the practitioner
engaging in legal practice.

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