Law School Notes: Torts Bible Full.doc

1.Negligence Template 2

1.1.
Duty of Care 2

1.2.
Breach of duty 3

1.3.
Damage 4

1.4.
CAUSATION 4

1.5.
Remoteness 5

1.6.
Defences 6

2.Trespass To The Person 7

1.7.
Battery Template 7

1.8.
Assault Template 8

1.9.
False Imprisonment Template 9

3.Trespass to Land
template 10

4.Vicarious Liability &
nON dELEGABLE DUTY 11

1.10.
Vicarious Liability Template 12

1.11.
NON-DELEGABLE DUTY 13

5.Nuisance: 14

1.12.
PRIVATE NUISANCE (PRIVATE LAND) TEMPLATE 15

1.13.
PUBLIC NUISANCE (PUBLIC LAND) 15

6.DEFAMATION 16

7.SHORT ANSWER SECTION 18

1.14.
Nervous Shock 18

1.15.
BREACH OF STATUTORY DUTY 18

1.16.
FORESEEABILITY 18

1.17.
PROXIMITY 18

1.18.
CAPARO TEST 18

1.19.
DUTY OF CARE IN NOVEL CASES 18

1.20.
NUISANCE 18

1.21.
Introduction - the Difference between negligence and trespass 18

Negligence
Template

[P]
has a possible cause of action in negligence against [D]. To be
successful, [P] must prove on the balance of probabilities (Barnett
v Chelsea & Kensington Hospital Management Committee)
that:

[He/she]
was owed a duty of care by [D];
The
duty of care was breached by [D];
That
the damage suffered:
1. was
  caused by [D]; and,
2. was
  not too remote.

[D]
must then raise defences such as volenti, contributory negligence or
joint illegal activity.

As
the accident occurred on [DATE] [P] is within the 3 year statutory
time limit for [his/her] claim: LAA ss10-11.

1.1.Duty of Care

[P]
must show that it is reasonably foreseeable that the possibility of
careless conduct of any kind on the part of [D] may result in
damage of any kind to [P’s] [person/property]: Donoghue
v Stevenson. [NOTE: if statutory go directly to Statutory
Authorities].

[Test
1]: Established Category

The
relationship between [P] and [D] falls within the established
category of [CATEGORY: CASE].

Categories:

Road
users: Broadhill v Young.

Driver/passenger:
Cook v Cook.

Doctor/patient:
Rodgers v Whitaker.

Employer/employee:
Smith v Charles Baker & Co.

Occupier/invitee:
Heaven v Pender.

Manufacturer/consumer:
Donoghue v Stevenson

As
a duty of care is established between [P] and [D] it is necessary to
examine whether [D] breached that duty.

[Test
2]: Novel or Special Duty Category

As
the relationship between [P] and [D] is not an established category,
it is necessary to establish that [D] owed [P] a duty of care in
relation to the circumstances in which [P] was injured. [He/she] must
show that the facts giving rise to the injury fall within a special
duty category.

(1)
Nervous shock (2) Nonfeasance (3) Statutory Authorities

Category:
Nervous Shock

Primary
Victims: As [P] has also suffered a physical injury,
consequential nervous shock is also recoverable: Donoghue
v Stevenson.

As
[P] is a primary victim [he/she] does not have to establish that the
psychiatric injury suffered was foreseeable in a person of normal
fortitude.

Secondary
Victims: As a [P] is a secondary victim, [D] does not owe
[him/her] a duty to take care not to cause pure mental harm unless
[D] ought to have foreseen that a person of normal fortitude might
have suffered a recognised psychiatric injury if reasonable care was
not taken.

To
show that a duty of care existed, [P] must show that:

[Element
1]: As a result of the actions of [D], [P] has
suffered a recognised psychiatric injury in the form of [APPLY].

[Element
2]: [P’s] recognised psychiatric injury was the
result of the sudden shock of [seeing/hearing] that [APPLY], rather
than mere grief or emotional exhaustion: Jaensch
v Coffey.

[Element
3]: [P’s] psychiatric injury must have been
reasonably foreseeable to [D] at the time: McLoughlin
v O’Brian. [P] does not have to have normal
fortitude as long as the impact would be the same for a person of
normal fortitude: Tame.

To
establish reasonable foreseeability the following factors
affecting [P] must be taken into consideration (it’s a
weighting game Louie!):

Close
relationship of [P] with original victim: extends to
anyone who is bound by a relationship of love and affection. Certain
classes (parents/spouses) are presumed to have this relationship:
Alcock v Chief of South Yorkshire Police;

Direct
Sensory Perception/Aftermath:

Hearing
is sufficient: Hancock v Wallace:
was not at accident, not at hospital, told over the phone.
Seeing:
Alcock: it is insufficient to
see it on TV if individuals cannot be identified, it is limited to
those actually present.
Aftermath:
Jaensch v Coffey: only saw
victim go into operating room; Spence v
Percy: aftermath limited by time; death of victim after
3yr coma is too far removed in time; Alcock:
identification at morgue is not close enough.

Antecedent
Relationship: between [P] and [D]. Annetts:
phone call established relationship. Duty
owed due to the ordinary principles of negligence, closeness of
relationship between D and P combined with D’s control and
risk to son.

Sudden
Shock: cannot be accumulated over
time: Annetts.

Gruesome
Factor: nature of the injuries:
Hancock v Wallace.

Control:
degree of control exercised by [D] over safety of victim: Gifford.

[Element
4]: Policy Issues

Despite
showing that [D] may owe [P] a duty of care, control mechanisms may
limit this duty. These issues include: Sullivan
v Moody

Indeterminacy:
recovery will risk creating an indeterminate liability to an
indeterminate number of people.
Disproportion:
may impose an unreasonable or disproportionate burden of [D].
Disincentive:
litigation may operate as a disincentive to rehabilitation.
Coherency
of the Law:

Tentative
Conclusion

Based
on [APPLY], it would be [likely/unlikely] that [D] owed [P] a duty of
care. As such, it [is/isn’t] necessary to determine whether
[D] has breached [his/her] duty.

Pure
Nervous Shock: Hancock v Wallace
– father was a secondary hearsay victim,
not at accident, not at aftermath, but told over phone that person
decapitated may have been his son; Pl recovered because of
extremely close relationship with victim.

Category:
Nonfeasance –failure to act

The
general rule is that [D] does not have a duty to take positive action
for the safety of [P]: Stovin v Wise
unless there is a:

Pre-existing
protective relationship between [P] and [D] imposes a positive duty
to act:

Duty
to prevent 3^rd party causing harm to [P]:

Statute
may impose a duty to act: Where an Act creates an
obligation and provides enforcement in a specified manner, as a
general rule, performance can’t be enforced in any other way:
Bishop of Rochester v Bridges.

Tentative
Conclusion

As
the relationship between [P] and [D] is that of a [APPLY], it would
be [likely that [D] owed [P] a duty of care. As such, it is
necessary to determine whether [D] has breached their duty.

Category:
Statutory Authorities

For
[P] to succeed in a claim against [D], the court must decide that [D]
is under a common law duty to exercise statutory power and when
exercising power they are is under a duty to take reasonable care:
Anns v London Borough of Merton.

[Key
Principles: Anns v London Borough of Merton

If
SA exceeds power and thereby causes damage, it will be liable
If
it has a duty to act and its failure to act causes damage, it will
be liable
If
SA has no statutory obligation to act, it is not liable for any
failure to act except when by its conduct it places itself in such a
position.
Where
it exercises powers in respect of operational functions, it will be
liable]

[Element
1]: Legislative Intent

[P]
must show that the Act establishing the [statutory authority]
intended for it to be liable for [APPLY]. If given power –
discretionary, if given duty – mandatory.

[Element
2]: Did the authority have a CL duty to exercise
statutory power?

As
[P] claims that the [Statutory Authority] owed [him/her] a duty of
care the courts will examine the following salient factors:
Crimins [NOTE: a ‘no’ answer to any factor
will result in no duty arising]

Reasonable
Foreseeability: that their act or omission might
result in injury to [P]
Class
of People: did the authority have the power to protect
the interest of a specified class of people including the
[P] rather than the public at large.
Vulnerability:
[P] was especially vulnerable and could not reasonably be
expected to adequately safeguard himself or interests
Knowledge:
knew or ought to have known of an existing risk of harm to a
specific class of people
Impose
Liability: would the imposition of a duty of care
impose liability with respect to the [D’s] exercise of
“core policy making” or “quasi-legislative”
functions? If yes, no duty.
Other
Issues:
1. Control:
  was the authority in a position of control: Barclay
  Oysters
2. Resources:
  the ability of the SA to afford to undertake measures.
3. Supervening
  Policy Reasons: e.g. indeterminacy

Pyrenees
Council v Day 1998: Council failed to follow up an order
directing tenant to repair fireplace; fire broke out and damaged
neighbouring property; held council owed a duty to neighbours
because:

Council
had specific knowledge
Council
had power to prevent it
P
was vulnerable, so power to prevent amounted to a duty

CASE
DETAILS:

Sutherland
S.C v Heyman: Facts:
Council inspected P’s buildings (but not footings) &
approved. Cracks later appeared & P sued Held:
Council was found negligent, but not liable as there was no general
duty was owed to exercise its powers. However if Councils actions
gave rise to reliance then a duty arises. Mason J spoke of
general reliance.

Parramatta
C.C v Lutz: Held: Adopted the
‘general reliance’ approach. The Council owed a DOC
because it had adopted a general practice of demolishing known
derelict buildings thus P entitled to assume council would promptly
demolish building.

Pyrenees
Council v Day: Council failed to
follow up an order directing tenant to repair fireplace; fire broke
out and damaged neighbouring property; held Council owed duty to
neighbours because: (i) Council had specific knowledge; (ii) power to
prevent it; (iii) P was vulnerable; so power to prevent amounted to a
duty. Kirby applied Caparo test: (i) Reasonable Foreseeability; (ii)
Proximity; (iii) Fair, Just and Reasonable. Brennan applied
Legislative Intent test: was right to private recovery intended.

Perre
v Apand P/L: P may recover if: (i)
particular class of people at risk; (ii) the class is vulnerable
because unable to protect itself; (iii) it was only a minor variation
on the rule that physical damage was necessary to found an action.

Ryan
v Great Lakes Council: No absolute
duty owed by SA; Council ought to have known the possible damage that
would result from omission but failed to take reasonable steps to
prevent the damage. This case showed the importance of
foreseeability.

Crimmins
v Stevedoring: Facts:
were Stevedores under D of C to warn workers of
asbestos. Held: no legislative intention that they were
liable. Messy case need (i) Rf that failure to exercise stat. Power
would cause P’s injuries (ii) did it cause them to have to warn
a specific class (iii) was P vulnerable (iv) was there knowledge of
possible harm to P. AND DO NOT NEED (i) would such a duty impose
liability in relation to core policy making (ii) would it open flood
gates

Tentative
Conclusion

The
relevant salient factors, and in particular [APPLY], indicate that
[D] [would/would not] owe [P] a duty of care. As such, it
[would/would not] be necessary to determine whether [D] was under a
common law duty to take reasonable care when exercising its power.

[Element
3]: When exercising power did authority have a CL duty
to exercise reasonable care?

As
it would appear that the Statutory Authority [was/was not]
undertaking operational acts they will give rise to liability
to exercise reasonable care: Sutherland
Council v Heyman

Sutherland
Council v Heyman: no duty exists
when making policy decisions, but duty exists in administrative and
operational matters. The level at where the decision is made
determines if it is policy/operational. Policy involves finance,
social and political decisions. Is the decision maker executive or
subordinate?

Tentative
Conclusion

As
[P] [was/was not] undertaking operational acts in relation to [APPLY]
it would be [likely/unlikely] that it was under a duty to take
reasonable care.

[Element
4]: Duty of Land Managers

Duty
arises when:

Foreseeable
Damage: (Nagle)
Use
Encouraged: (Nagle, Wilmot)
Danger
Not Obvious (Romeo) (Soper
v GCCC – fall on wet grass)
Administrative,
not policy, decision: (Sutherland)

CASE
DETAILS:

Nagle
v Rottnest Island Authority: Pl injured when diving
into rock pool. Because D advertised, provided facilities and
encouraged people to swim in rock pools, D brought itself into
a relationship of proximity with visitors and thus had a duty of care
to protect visitors from foreseeable risks – D should
have erected warning signs.

Wilmot
v South Australia: Pl injured when bike riding in
nature reserve; distinguishable from Nagle
because D did not invite visitors to use the land and decision
to leave land open was made at a high level.

Romeo
v NT Conservation Commission: Pl fell down cliff,
sued for not having erected warning signs or fence. Majority = no
duty owed; reasonable care should be assessed with reference to
nature of land, extent of use and character of people who enter. Duty
should only change when the authorities own conduct creates a risk of
injury or some special relationship arises.

Tentative
Conclusion

As
it would appear that [D] [APPLY] it [would/would not] owe [P] a duty
of care. As such, it [is/is not] necessary to determine whether they
have breached that duty.

Category:
Novel Category

Based
on the facts provided, it would appear that the possible negligence
by [D] does not fall within an established or special duty category.
As such, for [P] to have a claim against [D] in a novel situation
[he/she] must show: Sullivan v Moody

[He/she]
was a member of a class of persons likely to be injured by [D’s]
conduct; and,

The
law should allow for the incremental increase in duty of care
situations to the circumstances experienced by [P];
1. Identify
  type of harm;
2. Characteristics
  of the conduct;
3. Nature
  of the relationship;
4. Compare
  to previous decisions.
5. Policy
  decisions.

In
this case, [P] was [APPLY].

CASE
DETAILS:

Pure
Economic Loss: The Dredge
Willemstad – Pipeline
belonging to primary victim ruptured, Pl normally used the
pipeline and recovered costs for alternate means of delivery even
though Pl had not suffered physical property damage; Pl
recovered because D had peculiar knowledge that Pl in
particular would suffer economic loss, not merely a class of persons.

Tentative
Conclusion

As
it would appear that [APPLY] it would be [likely/unlikely] that [D]
would owe [P] a duty of care.

1.2.Breach of duty

[D]
would be considered to have breached [his/her] duty to [P] if
[his/her] conduct fell below that expected of a reasonable [APPLY] in
the same position: Blyth v Birmingham
Water Co.

[Element
1]: Standard of care owed and subjective elements
which may modify the standard:

Mental
State: insanity is not a civil defence. D was insane, but
judged on the bases of an ordinary sane person (D’s insurer
paid so he was effectively not penalised for insanity): Adamson
v Motor Insurance Trust.

Age:
where there is a minor, his conduct should be judged based on his
ability to foresee (ask: what is the standard of a reasonable 12yr
old): McHale v Watson. But a
minor who engages in dangerous adult activities must conform to
the standard of a reasonably prudent adult, eg driving car.

Skill
–
1. Philips
  v William Whitely: [D] must exercise the level of skill
  they claim to have. (First year lawyer or reasonable lawyer)
2. Stokes
  v Guest, Keen & Nettlefolds: [D] will be judged
  according to a higher degree of skill when he actually possesses
  that skill level.
3. Rogers
  v Whitaker: A doctor must give warnings of risk if a
  patient attaches significance to it (1/14000 chance of damage to
  eye).
4. Bolam
  v Frierm Barnet Hospital: doctor is not negligent
  if he acts in accordance with a practice accepted at that time as
  proper by a reasonable body of medical opinion, even though other
  doctors adopt a different practice. PERSUASIVE ONLY

[P’s]
peculiar knowledge and consensual relationship with [D]:
the standard of care changes with the relationship between [P] and
[D].
1. The
  relationship is modified by P’s knowledge: Cook
  v Cook: normally, personal skill
  is irrelevant, but P knew that D was learning to drive, so D’s
  standard was that of a reasonable learner. Also applies to drink
  drivers, depends on what they know you drank – see ‘volenti’.

[Element
2]: Breach of Standard of Care

[D]
will have breached the standard of care if a reasonable person in
[his/her] position would have reasonably foreseen that their conduct
involved risk of injury to [P] or a class of persons including [P]
and whether [D’s] response to the risk was reasonable: Wyong
Shire Council v Shirt.

A
foreseeable risk is one which is not far fetched or fanciful: Wagon
Mound (No. 2).

In
this case, it would be reasonable to suggest that [P] would be at
risk of harm as a result of [D] [APPLY]

While
a reasonable response in this case would be [APPLY] whether this was
reasonable in the circumstances will depend upon balancing the
magnitude of risk against the burden of taking precautions: Wyong
Shire Council v Shirt.

[Test
1]: Magnitude of Risk:

Probability
of Harm: [D] need only guard against reasonable
probabilities, not fantastic probabilities: Bolton
v Stone.

The
risk of injury must have been foreseeable, not far-fetched or
fanciful: Wagon Mound (No 2).

Standard
of care expected of a reasonable man requires him to take into
account the possibility of inadvertent and negligent conduct by
others: McLean v Tedman.

[APPLY]

Seriousness
of Harm: the more serious the potential consequences, the
more precautions must be taken: Paris v
Stephney Borough Council: an
employer must take more precautions for an employee with one eye
than others with two eyes, if there is a risk to the eyes.

Burnie
Port Authority v General Jones: in
some cases the risk will be so high because of vulnerability, that
the standard of care will amount to a virtual guarantee of safety,
giving rise to a non-delegable duty to take reasonable care (often an
issue with sub-contractors). Risk is to be assessed at the time of
incident.

[APPLY]

[Test
2]: Burden of Taking Precautions:

The
onus is on [P] to show there were reasonable measures available to
[D] to limit the risk to [him/her]. If shown, onus shifts to [D] to
show that they were unreasonable/impractical in the circumstances:
Romeo v NTCC.

Cost
of Precaution: as a percentage of the whole operation, is
relevant: Wyong Shire Council v Shirt –
waterskiing signs, yes. Bolton v Stone
– cricket fence, no.

Ease
of Precaution: if [D] has later provided for this risk
(i.e after injury occurred) then shows the ease of taking
precautions Calledonian Collieries v Spiers

[Test
3]: Social Utility:

Overrides
failure to take precautions. Court must balance the risk against the
end to be achieved.

Watt
v Herfordshire SC: standard of care modified by utility of
task undertaken (saving lives justifies considerable risk).

Patterson
v McGinlay: utility does not extinguish the standard of
care, just modifies it.

[Test
4]: Customary or Statutory Standards

The
fact that [P] was not adhering to the standards of careful conduct
doesn’t mean [he/she] is acting unreasonably, e.g. traffic
rules.

Doesn’t
matter what common practice in trade/industry is (except doctors -
Bolam): Mercer
v Comm’r Road Transport. Once risk known of, must
implement precautions: Thompson v Smiths
Shiprepairs.

Statutory
standards (not action for breach of stat duty) are evidence of
negligence just highly persuasive: Tucker v
McCann.

Tentative
Conclusion

It
would appear that [D] [has/has not] breached the duty of care by
[APPLY]. If this is correct, it is necessary to determine whether
[P] has suffered damage that was caused by [D] and that damage was
not too remote.

1.3.Damage

While
[P] has suffered damage in the form of [APPLY], it is necessary to
determine whether on the balance of probabilities [D] has in fact
caused [his/her] damage: Barnett v Chelsea &
Kensington Hospital Management Committee.

1.4.CAUSATION

[P]
must show that [his/her] injuries would not have been suffered but
for [D’s] negligence: Barnett v
Chelsea & Kensington Hospital Management Committee.
[P] should be aware that the court will examine the issue of
causation in a practical, common sense way, imbued with policy
considerations: March v Stramare.

In
this case, [P] will argue that but for [APPLY FACTS: CASE] he would
not have suffered [his/her] injuries.

CASE
DETAILS:

1)
Merely causing [P] to be to be at the scene of the accident is
insufficient to establish a causal connection, unless it
materially increases the risk of injury:

March
v Stramare: where [D] negligently
parked a truck in the middle of the road, which [P] crashed into.

McKiernan
v Manhire: where [P] tripped in the
hospital while recovering from her primary injury suffered as a
result of [D’s] negligent act, held that tripping could’ve
occurred anywhere, it was not caused by being at the hospital.

Pyne
v Wilkenfield: where [P] was wearing
a neck brace from her primary injury suffered as a result of [D’s]
negligent act, which caused her to trip and suffer further injury.
Held that [D’s] negligent act was the reason for wearing the
neck brace, therefore able to recover.

Queensland
v Keeys: where an officer
suffered psychiatric injury after being struck by a bullet, held that
by failing to warn him of the threat made against the unit, the
commissioner had materially increased the risk of serious injury,
because had the officer known, he would have taken precautionary
measures.

2)
Where there are alternative causes, for [P] to discharge the onus of
proof, [he/she] must show one of the causes is more probably the
cause:

The
court may find one explanation is more probable than any others: TNT
Management v Brooks: where two
trucks crashed and the wife of a killed driver sued, held that it was
more probable that the other truck was on the wrong side of the road.

If
there are multiple explanations, but all involve negligence by [D],
then [P] must succeed, whichever explanation is chose: GIO
v Best: where three possible causes
where identified, all supposing [D] was negligent while driving

If
there are multiple explanations, the court will not speculate as to
the cause in the absence of evidence which shows one cause is more
probable than the others: West v Government
Insurance Office: where [P], who was
injured by [D’s] negligent driving, suffered amnesia and the
other passengers evidence was inconclusive as to the cause.

[NOTE]:
Where [D] pleads novus actus
interveniens:

[D]
will argue that the [APPLY] is an intervening act that breaks the
chain of causation.

However,
[P] will argue that as the [subsequent injury] to [P] is a
predictable consequence of [D’s] negligence [and was likely to
occur even without the intervening act], the defence cannot be relied
upon to protect [D] from the subsequent injury: Adelaide
Chemical v Carlyle. [NOTE: unless medical treatment was
inexcusably bad: Mahoney v Kruschich]

[In
this case, the chain of causation will be broken if [APPLY FACTS TO
BELOW: CASE]

1)
Subsequent intentional act of a 3^rd party:

Curmi
v McLennan: where the intentional
act of firing a gun was not found to break the causal connection,
because it was a predictable consequence of leaving the gun
unattended and there was also a breach of duty not to expose other
children to the risk.

Yates
v Jones: Addiction is caused
by a NAI from the
intentional actions of the drug pusher & the addict to consume
heroin. The addiction wasn’t caused by the original
accident caused by D’s neg.

Havenaar
v Havenaar: Voluntary
consumption of alcohol broke the causal chain between D &
alcoholism. However if alcohol was considered the only method
to relieve the pain then it isn’t a NAI.

2)
Subsequent negligent conduct of a 3^rd party unless the
third party’s negligence was reasonably foreseeable:

Chapman
v Hearse: where a doctor attending
to a car accident victim was struck by a car driven negligently by a
third party, held that is reasonably foreseeable that a volunteer
will be injured by another’s negligence during a rescue.

Mahoney
v J Kruschich P/L: A worker received
negligent medical treatment for a injury suffered at work due to the
employer’s negligence, which resulted in further complications,
held the employer was liable for the further complications because it
is predictable that negligent medical treatment will be given.
Negligent medical treatment is only an intervening act if it is
inexcusably bad (gross).

Bennet
v Minister for Community of Welfare: where
[D] failed his duty to seek legal advice for [P] who was injured in a
state ward, and subsequent to his release [P] received incorrect and
negligent legal advice about his right to compensation for his injury
from a third party, held that the third party’s negligent
advice was not an intervening cause, because the reason it had to be
sought in the first place was because of [D’s] original
negligence.

3)
If there is free, informed and voluntary subsequent conduct by [P],
which results in his further injury, the chain will be broken:

Yates
v Jones: where [P] who was
recovering in hospital became addicted to drugs and sued for the
addiction as a result of being in hospital, but addiction was not
from medication, rather from illicit drugs bought from a dealer, held
that [P’s] free choice broke the causal connection.

Havenaar
v Havenaar: where [P] became an
alcoholic after an accident and sued for it, he claimed it was to
relieve pain, held that voluntary consumption of alcohol breaks the
causal connection, unless there is no other way to relieve pain.

[NOTE]:
Requirement for positive evidence (the onus of proving causation
rests very firmly on [P])

Quigley
v C’th: If
its improbable that the [P] would have used the safety feature that
[D] was negligent in failing to provide, then there is no causation.
[P] must prove he would have used the feature had [D] provided
it

McLean
v Tedman: If [P] proves there is causation then [D]
must disprove it. [D] bares the evidentiary onus of showing
that the suggested system of work wasn’t reasonable practicable
because [P] would not have used it even if it was provided & he
wouldn’t be able to enforce compliance.

Tentative
Conclusion

It
would be likely that [P] would establish that [his/her] injuries were
caused by [D]. If this is correct, it is necessary to determine
whether [P’s] injuries were not too remote.

1.5.Remoteness

In
order to recover, [P] must show the damage suffered is not too remote
in law.

The
[damage] suffered by [P] must have been of such kind that the
reasonable man should have foreseen: Wagon
Mound No 1. In this case, [P’s] [damage] would be
reasonably foreseeable as it is not far fetched or fanciful that
[he/she] would suffer [damage] as a result of [D’s] actions:
Wagon Mound No 2.

Provided
that the type of harm is foreseeable, the extent of harm and the
precise manner in which it occurred is irrelevant: Hughes
v Lord Advocate.

[Test
1] – Is the damage of such a kind that the reasonable
man should have foreseen: Wagon Mound No 1.
Must consider two issues:

Kind
of damage suffered: defining it narrowly or widely impacts on the
foreseeability of it, the more qualifications on kind of harm, the
harder it is to foresee. Provided the type of harm is foreseeable,
the extent of that harm and the precise manner in which it occurred
is irrelevant: Hughes v Lord Advocate;
and
If
it was reasonably foreseeable: a risk is reasonably foreseeable if
it would occur to the mind of a reasonable man in D’s position
and he would not brush it aside as far-fetched or fanciful: Wagon
Mound No 2.

Egg
Shell Skull Rule: If [P] has shown that the damage is reasonably
foreseeable, then [D] is liable for any consequential damage which
results because of [P’s] peculiarities: Smith
v Leech Brain. The tortfeasor takes his victim as
he finds him.

CASE
DETAILS:

Tremain
v Pike Facts: Employee got a rare disease from rat
wee, sued for not controlling plague Held: Disease contracted
from rat bite or food poisoning would be Reasonably Foreseeable; but
disease contracted from rat wee isn’t Reasonably Foreseeable.

Nader
v UTA Facts: Boy fell off bus, minor injuries;
developed a psychological disorder partly due to overprotective
parents Held: Parents reacting that way is Reasonably
Foreseeable & his condition is attributable to their reaction;
thus its Reasonably Foreseeable

Richards
v State of Victoria: Teacher failed to stop schoolyard
fight, boy knocked on head resulting in paralysis because of a
pre-existing physical condition, D liable for paralysis.

Stephenson
v Waite Tileman Ltd: P developed ‘compensation
neurosis’ as a result of injury because of a pre-existing
psychiatric condition – vulnerable personality.

Rowe
v McCartney Pl was driver in crash where passenger
was paralysed; Pl suffered guilt neurosis. Court held Pl
couldn’t recover for mental illness as it resulted from her own
actions (Policy considerations) Dissenting judgment reasoned
that Pl would have recovered damages if she took action for
Nervous Shock rather than guilt neurosis.

Tentative
Conclusion

As
[P’s] damage [would/would not] be reasonably foreseeable it
would be [likely/unlikely] that the damage would be considered not
too remote. If this is correct, it is necessary to determine whether
[P] has any defences available.

1.6.Defences

It
is necessary to determine whether a reduction of damages would be
allowed to reflect the percentage of blame apportioned to [P]: Law
Reform Act 1951 Qld.

[Test
1] Can [D] rely on a defence:

1. Volenti
non fit injuria: voluntary assumption of risk.

Although
the courts take a narrow view of the risks assumed by the plaintiff,
as volenti is a complete defence [D] should argue volenti first. To
be successful [D] must show:

[P]
perceived the existence of the danger: Smith
v Baker & Sons;
[P]
fully appreciated the risk/danger (scope of risk): Rootes
v Shelton, Ranieri v Ranieri ;
[P]
voluntarily accepted the risk (express or inferred): Smith
v Baker & Sons.

Smith
v Baker & Sons: [P] was building a railway cutting,
crane overhead dropped rocks on [P]. Held: [P] must consent to the
particular thing being done that would involve risk. No volenti.

Rootes
v Skelton: water-skier injured while doing dangerous
manoeuvre. Held: [P] voluntarily accepted risks of the sport, but
not the risk of the driver carelessly failing to keep proper watch.

ICI
v Shatwell: [P] explicitly and repeatedly told not to test
explosive in the wrong way, but did so; [D] won on volenti defence.

Insurance
Commissioner v Joyce: [P] got into car when he knew [D]
was drunk; held [P] to be volenti.

Nettleship
v Weston: consent must be real, free and voluntary.

Ranieri
v Ranieri: [D] teaching [P] to drive; held that he
must account for [Pl’s] lack of skill.

Rescuers:
it is foreseeable that a person will come to the rescue, volenti
cannot be used against a rescuer: Haynes v G
Harwood & Sons

Volenti
& drunk drivers:

Roggenkamp
v Bennett: Facts: [P] & [D] binge drank
together thru the night. [P] consent must be free, real &
voluntary. All three elements of volenti satisfied.

O’Shea
v NSW: If [P] doesn’t fully appreciate the risk of
negligence on the part of [D], then [P] can’t be taken to have
voluntarily assumed the risk. Court considered (1) [P] didn’t
drink with [D] thru the night, thus didn’t know of the extent
of [D’s] drunkenness (2) [D] drove a considerable
distance ‘competently & without incident’
before the accident occurred; therefore [D] couldn’t claim
volenti. However on appeal Court said that [P], in consuming
alcohol, was Contributory Negligent in allowing his own ability to
judge [D’s] ability to drive. Apportioned liability to 25% Pl,
75% D.

2. Contributory
Negligence:

[P]
did not take reasonable steps to protect himself from injury: Davies
v Swan Motor Co.

[P’s]
negligence doesn’t have to contribute to the incident, but must
contribute to the injury: Jones v Livox
Quarries; e.g. incident caused by [D’s] negligent
driving, but [P’s] failure to wear a seatbelt contributed 25%
to his injuries: Froom v Butler.

3. Exclusion
Clauses:

Involve
an exclusion of liability of [D] rather than an acceptance of
liability by [P].

If
the relationship between [P] and [D] did not arise from contract,
then an exclusion clause is irrelevant: Macleay
v Moore.

Scanion
v American Cigarette Co: [P] smoked same brand for 22
years. [D] pleaded that [P] knew. Held not sufficient to show that
[P] ought to have known. [D] must prove actual knowledge.

4. Joint
Illegal Activity:

The
mere fact that [P] engaged in some form of illegal conduct is not in
itself a defence to an action in negligence.

Jackson
v Harrison: [P] and [D] were disqualified drivers.
Obtained a car. [P] recovered as able to fix a standard of care
without reference to the illegal activity.

Smith
v Jenkins: [P] and [D] assaulted and robbed a car owner.
[P] injured in crash. Held that negligent driving was sufficiently
closely associated with earlier criminal conduct to deny [P] a
remedy.

Tentative
Conclusion

[APPLY]

NOTE:

If
[D] is an employee, or contractor look also at vicarious liability
and non-delegable duties.

Trespass
To The Person

Trespass
to the person is the wrongful, direct and intentional
interference with [P’s] physical integrity: McHale
v Watson.

1.7.Battery Template

[D]
will be liable for battery if [P] can show direct, intentional,
reckless or negligent touching of [his/her] person by [D]
without consent or lawful justification: Innes
v Wylie.

Battery
is actionable per se, as such [P] does not need to show damage
and need only show the fact of trespass.

The
onus then shifts to [D] to raise a defence. If there is actual harm
to [P] then remedies include compensatory, aggravated or exemplary
damages. An injunction is also obtainable if the battery is feared as
being on going.

[ELEMENTS]:
Direct, Intentional, Reckless or Negligent:

[D],
by [facts of act] has made contact with [P]: Innes
v Wylie. While the contact was a direct result of
[D’s] act, [D] does not have to come into actual contact with
[P]: Scott v Shepherd

[D’s]
act, which led to the contact, came about through
[intention/recklessness/negligence], and it is irrelevant that
[D] did not mean to hurt [P]. McNamara
v Duncan. Hostility is not a requirement, however,
hostility can make an otherwise permitted contact a battery.

Additional
elements that may be required based on facts:

Battery
doesn’t require proof of injury such as spitting at [P]:
Cotesworth’s case:

Even
cutting [P’s] hair without consent is battery: Forde
v Skinner

Every
surgical procedure is an assault, unless it is authorised (consented
to by [P]), justified or excused by law:
Marion’s Case

Consent
may also be implied by conduct: All physical contact is
battery unless it is conduct impliedly expected in everyday life,
e.g. jostling on buses, crowds etc. The conduct must be offensive
outside the accepted usages and accidental contacts of daily life:
Collins v Wilcock

The
[D’s] motive to commit the act however beneficent does not
affect its trespassory character’:
Murray v McMurchy:

[D]
can’t rely on [P] consenting to contact if contacts [P],
causing injury, in a manner outside the rules of game: McNamara
v Duncan (AFL)

Even
if there is consent to some contact outside the rules of the game;
consent doesn’t extend to contact that [D] knew or ought to
have known would have caused injury to [P]:
Giumelli v Johnston (AFL)

Accidental
poke in eye in NRL not battery: Hilton v
Wallace

A
touch to gain attention is acceptable, a physical restraint is not:
Rawlings v Till

Onus
of Proof

Freeman
v Home (UK): absence of consent is an element or
tort, so [P] must prove he did not consent to the contact.
Traditional view of Court

Marions
Case: McHugh J; Consent is a defence to battery;
[D] has the BOP to prove [P’s] consent

ELEMENT:
Defences: (Choose one option)

[D]
[can/can not] show that [P] consented to the contact by
[apply facts], and as such [D] [has a/ has no] defence: McNamara
v Duncan.

In
playing contact sport, a certain amount of contact is consented to,
but something intentional and outside the rules, will
constitute battery: Giumelli v Johnston.
The question then becomes was [apply facts] consented to? From the
facts of the case this [was/was not] consented to and
as such [D] [does/does] not have a defence.

[D’s]
contact [was/was not] in self-defence Fontin
v Katapodis, and [was/was not] also proportional
to the threat from [P]. As such [D] [does/does] not have a defence.

[D’s]
contact [was/was not] provoked and as such he [does/does] not
have a defence: Fontin v Katapodis.
However, provocation is not available to reduce compensatory
damages, but is available to reduce exemplary damages.

[D’s]
contact with [P] was required by medical necessity, and while
every surgical procedure is battery unless it is authorised,
necessity excuses this: Marion’s
Case. However, defence does not apply where the patient
has given a certificate of refusal. As such [D] [does/does] not have
a defence.

ELEMENT:
Remedies (Choose elements required and join with facts)

OPTIONS:

If
there fear of ongoing battery, [P] can seek an injunction.
As
there were no actual damages, [P] can expect to receive nominal
damages.
For
suffering actual damage, compensatory damages are available.
As
well as aggravated damages where there is loss of dignity or
humiliation Watts v Leitch.
In
some cases exemplary are awarded for unconscionable conduct which
requires punishment.
It
should be noted that provocation can reduce damages,
Fontin v Katapodis, also the presence of hostility
may affect the amount of damages awarded.

CASES
DETAILS:

Innes
v Wylie: Police in doorway no physical contact: no
battery
Marion’s
case - Parent consent to sterilisation of retarded
daughter. Court asked who has right to consent to sterilisation?
The Court answered it by finding the sterilisation was
non-consensual as Pl did not consent to the contact herself.
The onus is on D to prove Pl consented to contact.
Test: Did the physical contact go beyond acceptable
standards of conduct?
McNamara
v Duncan: (1979) – footballer case

Some
examples of battery:

Punching
another
Shining
a light in someone’s eyes
Spraying
water on another
Using
a weapon/implement to strike another e.g. stick, shooting a bullet,
An
unwelcome kiss
Snatching
a book off another
Doctor
giving treatment without consent
Using
a 3^rd party’s body to touch another

1.8.Assault Template

[D]
is liable for assault if [his/her] intentional or negligent
act or threat directly places in [P] a reasonable
apprehension of an imminent physical interference to
[his/her] person, or the person of someone under [his/her] control,
without lawful justification.

[P]
need only prove direct threat to his/her person caused by [D’s]
act, the burden then shifts to the [D] to show that the act was
involuntary or they were not at fault (neither intentional, reckless
or negligent)

[Element
1]: Direct threat: Select either verbal,
conduct or combine

Verbal:

[D],
by [apply facts] issued a threat to [P]. [D’s] means to carry
the threat into actions merely have to be apparent in [P’s]
eyes: Stephens v Myers.

Conduct:

[D]
behaved in a threatening manner by [apply facts]. [D’s] means
to carry the threat into actions merely have to be apparent in the
[P’s] eyes: Stephens v Myers.

SPECIAL
CASES: (Apply if necessary)

Conditional
threat:

If
the threat is conditional, it is not assault if the
accompanying condition renders the threat harmless: Tuberville
v Savage.
If
the condition requires a police officer to stop in performing a
lawful duty, then it is assault because [P the police officer] is
lawfully entitled to do what the condition prohibits: Police
v Greaves.

Future
Time:

If
the threat is a suggestion of assault at a future time, and
there is no way for [P] to escape because [he/she] is at the mercy of
[D] until the threat can be carried out, then the threat will amount
to assault: Zanker v Vartzokas.

[Element
2]: Intention

The
necessary intention to establish an assault by [D] is an intention
to cause apprehension in [P] that physical contact is about to
occur. [P’s] reckless or negligent conduct may satisfy this.

[Element
3]: Ability and Apprehension of battery:

[Ds]
[apply facts] fulfils the requirement of an actual or apparent
present ability to carry out the threat: Brady
v Schatzel.

Words
Alone Clause: (use if required)

Even
as [D’s] threat is purely verbal, it [does/does not]
constitute assault as the words [did/did not] cause fear of
immediate violence in [P]: Barton v
Armstrong. (threat from telephone)

[P]
must be aware of the assault by [D] as this is the very gist of the
action. [P] need not be afraid, but merely fear in knowledge and
expectation that the action threatened will take place. As such we
apply a subjective test as to what [P] feels. As [P] is
apprehensive, evidenced by [apply facts], this is sufficient, a lack
of intent by [D] to carry out the threat is irrelevant: Hall
v Fonceca.

[ELEMENT
4]: Defences: (Choose one option)

[D]
[can/can not] show that [P] consented to the assault by
[apply facts], and as such [D] [has a/ has no] defence: McNamara
v Duncan.

[D’s]
conduct [was/was not] in self-defence McClelland
v Symonss, and [was/was not] also proportional to
the threat from [P]: Fontin v Katapodis.
As such [D] [does/does] not have a defence.

[D’s]
conduct [was/was not] in self-defence of others Howard
v Wing, and [was/was not] also proportional to the
threat from [P]. As such [D] [does/does] not have a defence.

Note:
Mistake is not a defence.

Other
defences open to [D] are emergency and inevitable accident and need
to be applied as required.

[ELEMENT
5]: The Remedies (Choose elements required and
join with facts)

OPTIONS:

If
there fear of ongoing assault, [P] can seek an injunction.
As
there were no actual damages, [P] can expect to receive nominal
damages.
For
suffering actual damage, compensatory damages are available.
As
well as aggravated or exemplary damages for any outrage to [P’s]
feelings.
It
should be noted that provocation can reduce damages,
Fontin v Katapodis.

1.9.False Imprisonment Template

[D]
will be liable for false imprisonment if [P] can show wrongful
total restraint of their freedom of movement without [D’s]
legal justification.

False
imprisonment is actionable per se and as such [P] does
not need to show damage only trespass: Williams
v Milotin.

The
onus then shifts to [D] to prove it was neither intentional nor
negligent. [P] can seek an injunction or damages if [D] is liable.

ELEMENT
1: Restraint:

Test
1: Actual restraint:
(Choose either physical or psychological)

Physical:

In
this instance, [P] is [apply facts]. [P’s] actual restraint is
more than mere obstruction of movement in a particular direction, as
[P] is confined within boundaries set by D: Bird
v Jones.
[P’s]
knowledge of this restraint is not necessary:
Meering v Graham-White Aviation. As personal freedom
is so important it should be actionable per se even without
knowledge: Murray v Minister of Defence

Psychological:

In
this instance, [P] is [apply facts]. [P] feels there is no
alternative but to submit to [D’s] restraint.
Coercion
(Symes v Mahon) along with
fear of public humiliation (Myer Stores v
Soo), is sufficient for psychological restraint.

Test
2: Reasonable means of
escape: (Use whole clause)

[P]
has no reasonable means of escape without risk of risk of injury
(Burton v Davies) or serious
inconvenience (R v Macquarie),
as [he/she] was [use facts].

ELEMENT
2: Defences:

Test
1: Did P give consent: (Choose one option)

The
argument that [P] gave consent through the course of
their employment, is conditional on what was agreed to fall within
the course of employment: Herd v Weardale.
[P’s] [apply facts] [does/does not] fall within
what was agreed, and as such she [has/has not] consented and [D]
[is/is not] liable.

The
argument that by entering into a contract [P] consented to [D]
imposing reasonable conditions of restraint, regardless of [P]
knowing, is unlikely to carry weight today because the sanctity of
contract doesn’t prevail over principles of liberty &
freedom: Balmain New Ferry v
Robertson:

If
you revoke consent, you need to do it in a reasonable way. Ie you
can’t do it mid way of an airline flight.

The
argument by [D] that there was legal justification is
supported by statutory authorisation that says [apply facts], and as
such [D] is not liable for false imprisonment. (Persons who are
authorized to detain individuals include hospital staff, parents,
schoolteachers etc)

[D’s]
claim that there was actually reasonable means of escape
[is/is] not supported by the [apply facts] and as such, [D] [is/is
not] liable for false imprisonment.

[D’s]
claim that it was unintentional or without negligence does
not cover mistake as to the right to imprison P, Cowell
v Corrective Services Commission and as such is not a
defence.

ELEMENT
3: Remedies (Chose elements required and join
together with facts)

OPTIONS:

As
the tort is ongoing, [P] can seek an injunction.
Where
there is no damage, nominal damages.
For
suffering the loss of freedom, compensatory damages are available.
As
well as aggravated damages where there is loss of dignity or
humiliation Watts v Leitch.
In
some cases exemplary are awarded for unconscionable conduct which
requires punishment.
It
should be noted that an apology reduces damages: Walter
v Alltools

Case
DETAILS:

Bird
v Jones: (failed because barrier on bridge was a mere
obstruction, not total rest)
Burton
v Davies: dangerous to jump from a moving car, not
reasonable escape.
Herd
v Weardale: Coal miners: if [P] consented to it through
the course of his employment, he cannot claim FI; the question
arises, what did the parties agree was within the course of
employment.
Meering
v Graham-White Aviation: [P] asked to wait in room for an
interview, but real purpose was not said. A guard was outside the
closed door and intended to stop him if he attempted to leave; held
to be F.I
Myer
Stores v Soo: Soo mistaken for a shoplifter and
surrounded by security guards who ‘requested’ that Soo
accompany them to the office for an interview; when Soo attempted to
protest, guards insisted; held that it was total restraint because
Soo couldn’t refuse for fear of public embarrassment.
R
v Macquarie: – having to swim to escape is
seriously inconvenient.
Symes
v Mahon: – although not physically restrained, the
will of [P] was subverted by [D’s] psychological pressure;
[P’s] submission to go to Adelaide was not free and voluntary.

Trespass
to Land template

[IF
INDIRECT GO TO NUISANCE]

.
Trespass to Land;

[P]
may have a cause of action against [D] for trespass to land if [D’s]
intentional, reckless or negligent act directly
interferes with [P’s] exclusive possession of land
without consent or lawful justification.

As
trespass actionable per se [P] does not need to prove damage,
just direct interference. [D] must disprove fault.

The
remedies open to [P] are damages and or an injunction.

ELEMENT
1: Voluntary

[D’s]
act of [apply facts] was an
[intentional/voluntary/negligent] act: Public
Transport NSW v Perry.

Voluntary
– it is no trespass if you were pushed onto the land: Smith
v Stone
Involuntary
– A person who had an epileptic fit and fell off a railway
platform onto the train lines was held not to have trespassed on the
lines: Public Transport Commission
of NSW v Perry

ELEMENT
2: Direct Interference: (If not direct go to nuisance)

[Test
1]: Direct Interference: (Add items below if needed
for direct)

Not
limited to entry by a person – can be projecting things over
or in land: Davis v Bennison
Includes
failure or refusal to leave the land.
Continues
until rectified.
D
held liable for pushing dirt on the P’s land with a bulldozer:
Watson v Cowen
D
held liable in trespass for releasing cattle onto the P’s
land: Yakamia Dairy Pty Ltd v Wood
[D]
may commit trespass by directly causing some object (parked car) to
make contact with the land unpermitted by [P]:Mayfair
v Pears
An
advertising sign: Kelsen v Imperial Tobacco
Co Ltd:
Piping:
Lawlor v Johnston:
Tree
branches: Gazzard v Hutchesson:

[Test
2]: Actual interference:

As
long as it might interfere with what you might want to do, does not
matter whether it actually does interfere with use/enjoyment: LJP
Investments v Howard Chia
Mere
apprehension of interference is sufficient: Graham
v KD Morris

ELEMENT
3 Act done in respect of use and enjoyment of land:

[Test
2]: How far does land extend:

Legal
Maxim: ‘rights in the soil extend to heaven and to hell’

Rights
in land only extend to what is reasonably necessary for the
enjoyment of the land. Therefore, a single flight over land ≠
trespass: Baron Bernstein v Skyviews.

What
happens if there are frequent flights over land: Damage
by Aircraft Act 1952 (NSW): no action lies in trespass
or nuisance, having regard to wind, weather and all the
circumstances of the case, provided they don’t breach the
rules of the aviation authority.

Mining
Acts: Latin maxim does not apply, because there is no
private ownership over the minerals in the land. Rights in
minerals are separate to the fee simple in the land. But
note that unless consented to, or authorized by legislation,
extracting minerals, pouring water or other fluids under the P’s
property constitutes trespass.
1. Bulli
  Coal Mining Co v Osborne: Tunnelling under P’s
  land for the extraction of coal from under

ELEMENT
4: Without Consent: The burden of proof is on
[D] to show consent:

Implied
Licence

An
implied licence exists to enter land for the purpose of lawful
communication or arresting the occupier: Halliday
v Nevill

This
licence exists until it is revoked by the owner of the land –
e.g. by fences, gates, locks, signs: Halliday
v Nevill

Person
must be bona fide seeking: Bryne v
Cinema; Lincoln Hunt

Does
not extend to ‘robbers and nosey TV reporters”:
Lincoln Hunt; Rinsale v ABC

Limited
License

Right
to enter limited in scope. Entry unrelated to the right is
trespass of premises: Baker’s Case

Where
licence is conditional, and breach the conditions, it becomes
trespass: Konskier v Goodman

Revocation
of implied licence

Where
the license is revoked, and there is subsequent entry, it is
trespass: Plenty v Dillon

License
can be withdrawn, and once it is, allow a reasonable time to
leave, and then use reasonable force to eject: Cowell
v Rosehill Racecouse

ELEMENT
5: Who Can Sue? Trespass
protects [P’s] actual exclusive possession or occupation
of land, not ownership.

Do
not have to be actual owner of land – as long as you exercise
proprietary rights over the land, as long as act like have
possession – exclusive possession , excluded others: Newington
v Windeyer
Defacto
possession is enough.
No
need to prove legal or equitable title to the land. Anyone who in
fact has exclusive possession of property is treated as having right
to possession of that property, even if they have wrongfully taken
possession of it.
Interest
short of proprietary
1. Profit
  a prende – a right to take - sufficient: Mason
  v Clarke:
Right
to exclusive possession: Concrete
Constructions v BLF
If
there is a dispute between someone in possession as a matter of fact
and someone who has a legal right to exclusive possession, the
latter wins: Delaney v TP Smith Ltd

ELEMENT
6: Defences

.
Defences;

Lawful
arrest
Abatement
of nuisance by self-help: can trespass on land to stop a nuisance in
the case of an emergency: Jones v Williams
Statutory
authority to enter eg Hen Quotas Act (Qld).
1. However,
  the statutory authority to trespass must be through clear and
  unambiguous language – general language is insufficient: Coco
  v R
Warrant
to enter the house.

ELEMENT
7: Remedies

.
Remedies;

Damages:

Nominal:
don’t need to prove damage. Entitled to nominal damages.
Actionable per se.
Compensatory
- Where the damage is the natural consequence of the trespass,
compensatory damages are available: Hogan v
Wright
Exemplary

Injunctions:
for continuing and repeating offences, or if it was reasonable to
believe that the offence would be repeated: Konskier
v Goodman

Self-Help
: If entitled to immediate possession, then you are able to use
reasonable force to eject the trespasser. The same applies to a
trespassing object or material – provided you don’t use
more than reasonable force.

Cases

Davis
v Bennison: cat on neighbours garage, took shot neighbour
in between sued for trespass
Delaney
v TP Smith Ltd: P
took possession of house under a lease that was legally ineffective
and which did not give him any right to exclusive possession. D
forcibly evicted P. Held that D’s legal right to exclusive
possession overrode the fact of the P’s possession.
Graham
v KD Morris: injunction granted against a crane
jib
Halliday
v Nevil: 2 police officers walked up driveway and
arrested disqualified driver held: arrest was lawful b/c of implied
license to enter for lawful communication. Open and unobstructed, no
gate or lock, no notice prohibiting entry.
LJP
Investments v Howard Chia Investments: D carrying
out commercial development and requested scaffolding to go up on
neighbours land – injunction granted restraining them
Lincoln
Hunt : invaded the place with dissatisfied
customers with rolling camera held: trespass
Newington
v Windeye: “the grove” def took down fence
and put up low brick wall with gate giving access to the grove. [P]
were not the registered owners of the grove, but could still
maintain action in trespass b/c had engaged in many acts of
ownership over a period of 50 yrs. Employed man to mow lawn &
maintained tress garden & rockeries. On many occasions they told
uninvited visitors that they were trespassing. Held: entitled to sue
b/c trespass protects possession.
Plenty
v Dillon: father expressly revoked consent of the police,
summons could have been sent by post held: trespass, might be
different if they were coming to arrest
Public
Transport Commission of NSW v Perry: A
person who had an epileptic fit and fell off a railway platform onto
the train lines was held not to have trespassed on the lines.
Smith
v Stone – the D did not commit
trespass as he was thrown by 3^rd parties onto the land.

Vicarious
Liability & nON dELEGABLE DUTY

General
Points For Vicarious liability:

Vicarious
liability is where one person is held liable for a tort
committed by another person.
It
is not an independent course of action.
The
person does not have the actions attributed to them; rather
they take responsibility for the actions.
Parents
are not held liable for the torts of their children unless they
employ them.
Vicarious
liability is always strict liability, but not absolute
liability, and must be distinguished from personal liability.
The
injured party must show a meaningful connection between the
employment and the tort.

Why
have vicarious liability?

The
desirability of providing a deep pocketed and solvent D.
The
capacity of the employer to absorb the cost of liability as part of
the enterprise – insurance.
The
employer gets the benefit of the employee to advance their own
interests so it is just that they should bear the losses incurred by
those in the enterprise.
It
acts as a deterrent to encourage the employer to prevent accidents.

General
Points For Vicarious Liability

Non
delegable duty is used to justify the imposition of liability on one
person for the negligence of another to whom the former has
entrusted (or delegated) the performance of some task on their
behalf.
Under
the law of negligence, duty cannot be delegated though performance
of the duty can be: Elliot v Bickerstaff.

Comparison
between the two:

VICARIOUS LIABILITY	NON-DELEGABLE DUTY
Secondary/derivative claim: not an independent cause of action.	Primary claim – an independent cause of action
Applies to all torts	Applies to just the tort of negligence
Strict liability	Must prove fault – Lepore, Rich v Samin
Nothing that an employer can do to prevent being subject to vicarious liability.	Not a duty to take reasonable care, but a duty “to see that care is taken.”

1.10.Vicarious Liability Template

Relationship
Dealt With: Employer/Employee

For
[employer] to be vicariously liable there must be the commission
of a tort, an employer/employee relationship between
[company] and [employee] and the tort must have been committed by
[employee] in the course of [his/her] employment.

As
vicarious liability is strict liability [P] will then be able to
recover damages from [employer].

ELEMENT
1: Commission of a tort

[D]
committed the tort of [APPLY] by [APPLY].

ELEMENT
1: An employer/employee relationship

Contracts
of service = employment relationship with an employee:
liability created.

Contracts
for service = non-employment relationship with an independent
contractor: Therefore not liable. (Look to non-delegable duties).

TEST
1: Is there a relationship:

The
Multi Factor Test: Stevens v
Brodribb; Hollis v Vabu
(See Cases Below For Details)

From
the terms of [e/ee’s] contract where [company] could [apply
facts to do with control] it is apparent that [company] [had/did not
have] the right to control as opposed to the exercising
of control. This is a strong indicator of [an/no] employment
relationship and [employer] [may/may not] be vicariously liable.
Other factors to take into consideration are
[apply other general factors]:

Other
factors to use when looking at control are:

The
right to have a particular person do the work
The
right to suspend or dismiss
The
right to exclusive services of the person engaged in work
The
right to dictate work place, hours.

Other
general factors to consider apart from control are:

The
nature of the task undertaken – skilled or unskilled
The
freedom of action given to the worker to perform the task –
can the worker delegate
The
provision of equipment by the employer
The
amount of remuneration and how it is to be paid
Does
the employer deduct income tax and superannuation
The
hours of work and provision of holiday and sick leave
The
method of termination

Tentative
Conclusion:

[Employer]
[does/does] not have an employee/employer relationship with
[employee].

ELEMENT
3: Was the employee acting
in his course of employment?

TESTS:
(apply as necessary):

[D]
may be liable for acts done in the scope of employment even if there
is an express prohibition against it. What is
essential is whether that prohibition limits the scope or merely
regulates the mode. If it is the later there may be liability. Rose
v Plenty.
If
[e/ee] engages in acts outside scope of employment, then [company]
is not vicariously liable and [employee] can be said to be on “a
frolic of his own”, the degree of deviation is
important: Beard v London Omnibus.
If
the employee is acting in the best interests of the
employer & if his actions are reasonably incidental to
employment then the employer is Vicariously Liable:
Kay v ITW
A
master can be vicariously liable for the horseplay
which is found to be within the course of employment: Hayward
v Georges
Wilful
torts such as criminal conduct are not necessarily outside
the scope of conduct: Morris v Martin

(SEE
CASES BELOW TO CHECK FOR SIMILAR FACTS)

Tentative
Conclusion:

[Employee]
[was/was not] acting within the scope of their employment when the
tort took place, and as such [employer] [will/will not] be
vicariously liable.

CASE
DETAILS:

Employment

Albrighton
v RPA: If the employee forms part of the employers
business organisation then they are Vicariously Liable. It is
irrelevant in the case of hospitals that just because they have no
control over how the Dr operates. Determine if [P] saw Dr or
hospital.
Hollis
v Vabu: D a parcel and document carrier who employs
vehicle and bike couriers. P pedestrian who was seriously injured by
a bike courier who was illegally riding on the footpath. Held:
relationship was employer / employee and endorsed ‘enterprise
risk’. HC applied Brodribb factors: little control how tasks
carried out; unskilled with no special qualifications; training
discipline and attire directed by employer, employer supplied some
equipment, no negotiation over pay rates; courier supplied own bike.
(Crt said may be different for couriers who supply own vehicle)
Stevenson,
Jordan, v Macdonald: Contract of service:
Man is employed as part of business & his work is an integral
part of business contract for services: His work, although
done for the business, isn’t integrated into it but only
accessory to it.
Stevens
v Brodribb Sawmilling: D was sawmilling company
who employed tree feelers to cut the trees and sniggers to drag the
trees onto the trucks and drivers to drive the trucks. D coordinated
the three groups but left them alone to operate their systems. P was
a driver who was injured by the negligence of a snigger while
loading the truck. Held: snigger not employee of D, not vicariously
liable, as groups were totally outside D’s control.

Unauthorised
performance of authorised duties

Century
Insurancev NIRT If employee’s actions (smoking
whilst waiting for fuel tank to fill) are reasonably incidental to
the scope of their employment then employer is Vicariously
Liable, even though he wasn’t employed to smoke
cigarettes.
Bugge
v Brown Even if employee performs an authorised act in an
unauthorised or even prohibited manner then the employer is still
Vicariously Liable.
CML
v P&C Insurance If an Employee goes against the
wished of his employer & acts with animosity towards a
commercial opponent (knocked them) business then the employer is
Vicariously Liable as the employee (salesman) is considered to be
acting in the employer’s interests; trying to sell the
employers product

Not
liable if employee on ‘frolic of their own’

Chaplin
v Dunstan If a driver detours to get a drink & on
this way crashes then the employer is Vicariously Liable as it is a
reasonable detour; he is entitled to have a drink
Crook
v Derbyshire Stone Driver stopped for lunch, involved in
fight. Held: that it was driver own business; once out of the
truck the employer not vicariously liable.
Storey
v Ashton A driver backtracking off his route to visit
some people is considered a frolic of his own; there was substantial
diversion off route.
Hilton
v Thomas Burton If employees knocked off work early &
had drinks, then they are considered to be on a frolic of their own;
employer not Vicariously Liable.
Harvey
v O’Dell: Workers who took an unauthorised lunch
break were held to be acting in the course of employment.

Horseplay:

Hayward
v Georges: slapping a waitress in the back causing her to
fall was is the course of employment.
Cth
v Connell: pushing a naval apprentice off the bridge in
the course of skylarking was within the course of employment.

Wilful
Torts:

Poland
v John Parrs: Servant struck suspected thief, in the
course of employment.
Petterson
v Royal Oak Hotel: Barman threw glass – keeping
order in the bar, in the course of employment.
Deatons
v Flew: Barmaid threw glass – private act of
retaliatory self defence, not in the course of employment.
Canterbury
Bankstown Rugby League v Rogers: head high tackle, in the
course of employment.
Morris
v Martin & Sons: Mink coat stolen by servant after
sent for cleaning. Held D liable for as the theft was a wrongful
mode of performance of the employee’s duty of cleaning it. D
was liable on the basis of non delegable duty.

Point
to Note: Tests used prior to multifactor were:

TEST
1: Control Test - Original Test

If
[D] controls both what is done by [E/ee] & how
it is done, then the relationship is one of employment and the
contract is one of service. Applying the facts of the case we can see
that [apply facts]. This test works well with unskilled employee,
however not for skilled employees: Zuijs v
Wirth Bros

TEST
2: Integration & Organisation Test

If
[e/ee] is sufficiently integrated into the organisation of
[company] to be considered its servant then there is a relationship.
The fact that [e/ee] is [apply facts] points towards the conclusion
that [e/ee] [is/is not] [integral/ancillary] to the [companies]
organisation: Stevenson, Jordan &
Harrison v MacDonald & Evans; Albrighton v RPA (Doctor/Hospital
case)

1.11.NON-DELEGABLE DUTY

If
[Employee] not classed as employee is there a non-delegable duty?

For
a non-delegable duty to arise there must exist a protective
relationship of responsibility or control on the part
of [D] and vulnerability or reliance on the part of
[P].

Examples
of protective relationships:

Employer
to employees: Kondis
v STA
Hospital
to patients: Samios
v Repatriation Commission /
Ellis v Wallsend
District Hospitals
Schools
to students: Cth
v Introvigne
Occupier
in control of premises onto which dangerous substances have been
introduced to a lawful visitor: Burnie
Port Authority v General Jones Pty Ltd

Employer
to Employees

Albrighton
v RPA Regardless of the minimal control hospital’s
have over Dr’s, they are Vicariously Liable (absolute
liability) as they have a duty to the Dr’s take Reasonable
Care.
Kondis
Such duties arise because the person on whom it is
imposed has undertaken the care, supervision or control of the
person or property of another or is so placed in relation to that
person or property as to assume a particular responsibility for his
or its safety, in circumstances where the person affected might
reasonably expect that due care will be exercised. A non-delegable
duty should be imposed on employers. It is reasonable they should
bear liability for the negligence of his independent contractors in
devising a safe system of work.

Schools
to Students

Cth
v Introvigne Sub contractor: negligence broke
flagpole & hit kid. Cth as provider of education had a separate
responsibility from merely being vicariously liable for the teachers
or others it appointed to carry out and provide education.
NSW
v Lapore: HC held that non-delegable duties do not
impose strict liability. The P is still required to prove fault.

Hospitals
to Patients

Cassidy
v Minister for Health Denning J: Hospitals are
Vicariously Liable for negligence of their staff. Regardless whether
it involves a contracts of service or contract for services.
Roe
v Min for Health Denning J “The reason is
because, even if they are not servants, they are the agents of the
hospital to give the treatment. The only exception is the case of
consultants or anaesthetists selected & employed by the patient
himself.”
Ellis
v Wallsend District Hospital: Here the hospital
was not liable as the surgeon had been privately consulted by the
patient and the hospital had only lent its facilities and support
staff to the surgeon.

Land
Occupiers

Safeway
v Zaluzna: Land occupiers owe a duty to everyone
to take Reasonable Care to prevent foreseeable injury to customers
who come onto the land. What is reasonable will vary with their
purpose for coming onto the land.
Phillis
v Daley The DOC is what is foreseeable; Duty to
trespassers etc is ↓
Calin
v Greater Union Perhaps a special duty is owed to
contractual entrants to maintain the premises to a standard that is
as safe as reasonably possible.
Burnie
Port Auth v General Jones Property owners owe a
non-delegable duty to ensure that persons invited onto their
property are protected. Depending on the magnitude of danger, the
standard of Reasonable Care may involve a degree of diligence so
stringent as to amount practical to a guarantee of safety (Welding
contractor started fire and destroyed part of cold storage)
Rylands
v Fletcher A person who for his own purposes brings on
his land & keeps there anything likely to do mischief if it
escapes, must keep it at his peril, & if he does not do so is
prima facie answerable for all the damage which is the natural
consequences of its escape. He can excuse himself by showing that
the escape was owing to Pl’s default or perhaps that
the escape was the consequence of vis
major or the act of God. Had to be non-natural use of the
land. This case has since been absorbed by the general law of
negligence.

Justifications
and Policy Considerations: INCLUDE
WITH YOUR ANSWER

In
the three protective relationships where a non-delegable duty is
clearly established there are sound policy reasons for the imposition
of the duty.

[D]
is a financially responsible person fully aware of its
responsibilities towards the class of persons to which [P] belongs.
[D]
is already vicariously liable for the fault of its own staff.
[D]
will usually have insurance against the vicarious liability.

Tentative
Conclusion:

[APPLY
AS REQUIRED]

Nuisance:

Comparisons:

Nuisance
& Negligence:

Negligence
– liability is based on the unreasonableness of the
conduct causing the damage; Fault depends on the breach of a
duty. Breach judged on reasonableness of conduct by balancing risks
of conduct. Calculus of neglect requires proof of
damage which is caused by D and is reasonably foreseeable.

Nuisance
– liability is based on the unreasonableness of the
interference itself; Fault depends on whether D created the
nuisance. Therefore conduct giving rise to nuisance may be perfectly
reasonable, but the resultant interference may be totally
unreasonable. Calculus of nuisance requires proof of
damage which is caused by D and is reasonably foreseeable.

Claims
in both negligence & nuisance require proof the damage was
Reasonably Foreseeable.

Nuisance
v Tresspass:

Nuisance’s
are indirect interferences, which can be intentional
or unintentional, with use & enjoyment of land.

Trespass
must be a direct interference with land.

Nuisance
requires proof of the unreasonable interference with
use & enjoyment.

Trespass
is actionable per se, regardless of whether it
impacts on the use & enjoyment of land

Nuisance
protects against physical injury and interference with use and
enjoyment of land

Nuisance
is intangible invasions (noise, smell, vibrations)

Trespass
is physical intrusions by tangible objects (people, cattle, rubbish
etc)

1.12.PRIVATE NUISANCE (PRIVATE LAND) TEMPLATE

[P]
may have a cause of action against [D] due to the
substantial and unreasonable interference to
[P’s] enjoyment and use of [his/her] land as a result of
[APPLY].

ELEMENT
1: Locus standii/right
to sue:

As
[P] [owns/rents/etc.] the land [he/she] has a proprietary (title,
lease) or legal interest in the land and can sue: Oldham
v Lawson (wife owned land,
husband couldn’t sue neighbour).

If
licensee (not a proprietary right)

However
whilst historically a licensee has not had title to sue, in the UK
in Khoransandjian v Bush a mere
licensee was able to sue, but in Aust Hunter
v Canary Wharf overturned this. Then a mere licensee was
given locus standii in: Deasy Investments v
Montest – QCA relied on Khorasandjian
On
balance …may have title to sue despite being a mere licensee
(Animal Liberation Inc v Gasser)

ELEMENT
2: Who can be sued:

[D]
is capable of being sued as [he/she] is the [apply below].

Doesn’t
have to be in possession of land: Fennel
v Robson Excavation P/L – expired license.
Creator
of the nuisance: Fennell v Robson
– contractor dug foundations and caused
subsidence.
Authoriser
of the nuisance: De Jager
– Hall owner who hired it out, neighbours complained.
Adopter
of the nuisance: Sedleigh-denfield
– Drain in land that blocked and flooded neighbour. The
landowner is liable for nuisance only if he ‘continued or
adopted’ the nuisance, which was created by another on his
land.
Person
who knows or ought to be aware of nuisance: However D
can’t be liable if he (1) Didn’t know of the
nuisance existence (2) Didn’t ought to know of it’s
existence (3) Didn’t have any reasonable opportunity to
repair or remedy the nuisance. Torette
House v Berkman
Some
element of fault needed on the defendant’s behalf: Torette
House P/L v Berkman – did not know or ought to have
known/acted, could not reasonably have found out, no liability.

ELEMENT
3: A recognised right:

[P’s]
recognised right of [apply facts], which the law deems capable of
being protected, is being interfered with by [D’s] actions.

the
land itself in its natural state
property
or chattels associated with the land
the
right to enjoy the land eg. pleasure, comfort, quietude, fresh air,
aesthetics
the
right to free access to land: Dollar Sweets
P/L v Federated Confectioners – forcibly prevent,
Animal Lib v Gasser – put
entrants in fear of safety.

Freedom
from non-physical damage such as noise, offensive sights and smells.

Events
that are not on [P’s] property, but which can be seen from
[P’s] property Thompson-Schwab
v Costaki. (brothel opened up in suburban area, people
said aesthetics were being destroyed held: nuisance)

Privacy
is not a legally recognised interest: Victoria
Park Racing v Taylor but aggressive viewing may give rise
to an action to protect privacy: Plenty v
Dillon (obiter). Eg. Neighbour spying mirror system.

ELEMENT
4: The interference is
substantial and unreasonable in all the circumstances:

The
interference with this right by [D] [is/is not] substantial and
unreasonable as [item A or B].

A.
Damage:

Property
damage is prima facie evidence of the interference being substantial
and unreasonable: St Helens Smelting
v Tipping.

Property
damage most conclusive evidence if other interference types as well:
Halsey v Esso Petroleum.
Plaintiff
doesn’t have to prove that the defendant’s use of their
land is unreasonable, defendant have to prove reasonable: Corbett
v Pallas.
If
property damage, doesn’t matter if nuisance is temporary or
necessary precautions taken: Harris v
Carnegie’s Pty Ltd.

B.
Calculus of neglect:

Court
balances the right to enjoyment versus the defendant’s desire
to undertake the activity – the rule of give and take: Bamford
v Turnley. Judged ‘not merely according to elegant
or dainty modes of living but according to plain and simple notions
among English people’: Walter v
Selfe. Factors considered include:

Nature
of the locale – what may be reasonable in one place may be
unreasonable in another. Interference that would be reasonable in an
industrial area may be unreasonable in a residential area: Munro
v Southern Dairies Ltd: does not matter whether
activities benefit the public. Nature of locale judged at time of
interference, so approaching nuisance no defence: Sturges
v Bridgman.

Timing
and Duration – Calculus of
nuisance = severity of the nuisance v the time/duration/extent in
which it occurs: Halsey v Esso Petroleum

Duration
– work that is of a temporary nature is generally not held to
be a nuisance: Andreae v Selfridge Co.
However, even if it is temporary, if it at an unreasonable time,
then it will be held a nuisance: Harrison v
Southwark & Vauxall Water Co.

Time
– activity within a CBD constitutes a nuisance during business
hours: Wherry v KB Hutcherson.
Activity in a residential area constitutes nuisance after business
hours: Seidler v Luna Park Reserve Trust.
But measure against a reasonable trade, not an unduly sensitive
trade/business: Robinson
v Kilvert.

Sensitivity
of Plaintiff – ‘Eggshell
Skull’ rule does not apply, interference only unreasonable if
it would affect a reasonable man: Walter v
Selfe. Can’t be a nuisance if wouldn’t affect
an ordinary business: Robinson v Kilvert.
But if it would affect an ordinary person, then the special damage
caused by sensitivity is recoverable: McKinnon
Industries Ltd v Walker.

Malice
– An interference that would otherwise be reasonable is
rendered unreasonable if it is malicious: Christie
v Davey. Malice on the part of the defendant will
outweigh the particular sensitivity of the plaintiff: Hollywood
Silver fox Farm v Emmett

ELEMENT
4: Defences: (select
one)

[P]
approaching the nuisance by [apply facts] is not a defence: Sturges
v Bridgman. It is not a defence to argue [P] approached
the nuisance - all you can say is that the nature of the locality
means that the interference is not unreasonable.

The
benefit to society, claimed to be [apply facts] of [D’s]
nuisance is no defence: Munro v Southern
Dairies.

The
claim of reasonable care by [D] will not exonerate [him/her] from
liability, because the measure is reasonable interference, not
reasonable care: Harris v Carnegie’s.

Contributory
negligence – unusual sensitivity can be reversed and reduce
damages. (see above)

Statutory
Authorisation – if there is statutory duty to conduct activity
in that area, then [D] must show interference is an unavoidable
consequence: Allen v Gulf Oil Refinery.
But if duty could have been performed in another way to avoid
interference, the defence does not apply: York
Bros v Commissioner for Main Roads.

ELEMENT
4: Remedies (select
as needed)

Injunction
– if there will be a continuance of nuisance (stop notion of
‘cheaper to pay damages than stop’)

Damages
– usually for past losses, hard to determine for lack of
enjoyment of land, can’t recover for reduction in property
value for non-tangible nuisances.

Abatement
– you can abate the nuisance by self-help (can’t recover
cost) BUT, can’t interfere with, go onto their land. Must give
back severed property. (Cutting off a tree branch) Can’t
deliberately set-out to destroy object of nuisance: Lemmon
v Webb. Must ask them to abate first, except in
emergencies.

1.13.PUBLIC NUISANCE (PUBLIC LAND)

A
public nuisance is any activity that materially affects the
reasonable comfort and convenience of a class of the public by
interfering with a public or common right.

It
is actionable in tort by private individuals if they suffer special
and particular damage over and above the rest of the public.

ELEMENT
1: A class of people is
affected

The
class that [P] belongs to is [apply facts] and is enough to show a
representative cross-section. AG v PYA
Quarries.

ELEMENT
2: Locus Standii (ignore
A & B and look at C)

Attorney-General
as protector of the common rights (usually doesn’t get
involved due to practical or political reasons
Attorney-General’s
fiat (A-G must give permission to a ‘relator action’,
although permission is rarely given because of the above reasons,
but if given the person must give an undertaking as to damages).

[P]
through [apply facts] [can/can not] show that [he/she] is a private
individual suffering particular or special (different) damage
over and above that suffered by the rest of the community.

Special
Damage: must distinguish [P] from the rest of the
community. Strong argument if a peculiar kind is suffered (1, 4,
7), weaker argument if a peculiar degree is suffered (2, 3).

Boyd
v Great Northern Rwy Company – doctor held up at
crossing for 20 min. No-one else delayed. Suffered pecuniary loss
(time/money) and peculiar damage.
Ball
v Consolidated Rutile – fisherman take action for
pollution of Moreton Bay. Held fishing rights same as the general
public’s, nothing unique in their loss (only extent of),
insufficient to support action.
Walsh
v Ervin – Path of road blocked, inconvenience and
delay for plaintiff. Even without pecuniary damage this loss is
sufficient for peculiar damage, but only if inconvenience is
appreciably greater than others.
Benjamin
v Storr – trucks constantly going past front was
blocking access and light into coffee shop, owner occurred expense
of having to light lanterns. Held public nuisance because peculiar
pecuniary damage.
Teamay
v Severin – sale of alcohol caused nuisance in
aboriginal community. Held damages too remote. Interference must be
clear, a clear link between interference and damage.
Animal
Liberation v Gasser – peculiar damage because
patrons put in fear and frightened away from entering circus because
of protesters.
Castle
v St Augustine’s Links – guy hit by golf ball
on public land. Personal injury is prima facie evidence of peculiar
damage. Can plead nuisance or negligence. P must establish that
there is a nuisance, and causation, then D must prove a justified
excuse.

ELEMENT
3: The interference is
unreasonable

[P]
must show that the interference is unreasonable and substantial
through application of an [established category or calculus of
nuisance].

General
considerations – Diamond v Pearce:

Must
be unreasonable and substantial
Calculus
of nuisance – degree, duration,
timing and public utility of the activity all relevant. Must still
recognise need for give and take. (see private nuisance for details)
Standard
is stricter than private nuisance as more people affected.

Established
categories

Interference
with public amenity – substantial interference with the
use and enjoyment of a public park would constitute a public
nuisance. Interference can’t be a matter of taste.

Interference
with travel and access if:

The
defendant in carrying out his business intentionally creates a
crowd: Wagstaff v Eddison Bell Co.
The
business operates in an unconventional manner: Fabbri
v Morris – serving window instead of shop entrance.
Not nuisance if just annoying, but doesn’t block: Silservice
v Supreme Bread.

ELEMENT
4: Defences (apply as
required)

Statutory
Authority:

York
Bros v Commissioner for Main Roads

The
activity authorising the nuisance was created by statute
There
was no reasonable way of carrying out the activity, according with
the statute, without causing the nuisance.

If
the nuisance was an inevitable consequence of the undertaking, and
it was not performed negligently, then it is not actionable:
Hammersmith Rly v Bland.
Planning
permission from a subordinate planning body does not have the same
effect as a statutory authority – it has no jurisdiction to
legalise nuisance: Hunter v Canary Wharf.

Public
Utility

Taylor
v City of Perth:

Calculus
of nuisance – balance:

objective
behind the construction
the
damage the construction is causing to third parties.

ELEMENT
5: Remedies

Injunction
– awarded when there is likely to be a repetition of the
wrong: Clowes v Staffordshire Waterworks,
or where there is a prospective nuisance: Animal
Liberation v Gasser.
Damages
– can only be awarded for a past nuisance
Exemplary
damages – awarded in circumstances where the conduct of
the defendant is such that it warrants such damages: Walsh
v Ervin

Malice
- showed a particular outrageous disregard for public rights: Guppys
v Brooklyn.

Additional
Notes:

Personal
Injury

Prima
facie Personal Injury will be damage above & beyond that suffered
by the rest of the community. Pl’s injury needn’t
have prop rights in land if nuisance occurs

Castle
v St Augustines Links Onus of proof (1) Pl
must establish nuisance (2) Pl must establish causation
by the D (3) onus shifts & D must demonstrate
reasonable excuse

Nature
of the Interference

(1)
Must be unreasonable & substantial (2) Degree, timing,
duration, & public utility is relevant-a calculus of nuisance-
recognising the need for give & take (3) Standard is
stricter than for private nuisance

Dymond
v Pearce Subjective test of what is reasonable at the
time the nuisance occurred

Examples
of Interference with Public Amenity

Kent
v Johnson “in my opinion, a substantial
deleterious unlawful interference with the nature & quality of
the reserve as a park for one to use & enjoy as such as a member
of the public would constitute nuisance. Injury to the F&F
seems to me to be in the same class of interference as would be the
fouling of a public swimming pool”

(1)
Damage to skyline is not legally enforceable as it is
subjective & Court can’t enforce good taste. (2)
Argument of the F&F
failed, as it wouldn’t substantially interference with public
amenity. (3) Also obstructing footpath while
constructing building is not a nuisance & is not an unreasonable
interference with travel & access. (4) Also
public safety on highway is not a nuisance. Must expect delay
& inconvenience especially with construction work etc. (5)
However if it ↓
use & enjoyment then it can be Public Nuisance

Public
utility principle.

Wagstaff
window display attracted crowds that obstructed roads &
shop access. Held: Deliberate action to bring
crowds t/f actionable. Thus Xmas lights are indeed public nuis as
they deliberately bring crowd

Fabbri
v Morris Walk thru ice-cream shop. Held:
operating in an unconventional manner that attracted
unreasonable

Silservice
v Supreme Bread customers lined up at shop for fresh
hot bread H: Not unreas interference, as it is not the fault
of the owner if their business thrives at a specific & particular
time of the day.

DEFAMATION

Defamation
protects a person against the making of statements that have the
effect of lowering that person’s reputation.

Elements:

Defamatory
Matter: subject matter must contain a defamatory imputation or bear
a defamatory meaning;
Reference
to [P]: the subject matter must relate to [P];
Publication:
subject matter must be published.

The
two species of the generic tort of defamation are: (Cause of Action)

Slander:
verbal or transient form (requires proof of damage- some Exceptions)
Libel:
written or other permanent for (actionable per se)

Nature:
Protection of reputation v Freedom of speech (no absolute
right to freedom of speech, privileged to speak freely in the absence
of committing any legal wrong)

Two
sources:

Defamation
Act 1989 (Qld)

s5(1)
– A person who by spoken words or audible sound, by words
either intended to be read by sight or touch, signs, signals,
gestures or otherwise publishes any defamatory implication about any
person is said to defame that person.
Includes
both permanent and transitory forms, but does not distinguish
between libel and slander

Common
Law – A statement ‘of a kind likely to lead ordinary
decent folk to think less of a person about whom it is made’
(Consolidated Trust Co v Browne).

does
not have to impute any moral blame, only has to dishonour (West
v Mirror Newspapers Ltd – novel with implied links,
had to prove identity)
It
depends on the context
everyone
doesn’t have to think less of you (Thaarup
v Hulton Press – only affected some people’s
opinions. Cornwell v Myskow –
more published to, easy to get people who think less of you).
Act
protects business reputation (specifically says), but CL doesn’t
always.

The
Innuendo

Statements
which lead to a defamatory belief are:

those
which could be drawn by any reasonable person (Monson
v Tussauds – wax doll
positioned in Chamber of Horrors) FALSE INNUENDO

those
which are innocent on the face of it, but is defamatory to those who
know other facts (Morrison v Ritchie
– published birth twins, published marriage 2 wks earlier)
TRUE INNUENDO

When
and where it was published is relevant to the innuendos that will be
drawn (Abbot and Costello’s Case
– book more convincing than TV or radio, thought and research)

Interests
Protected:

Protects
against injury to reputation
Publication
must be intentional or negligent

The
Plaintiff

Who
may be defamed and sue

natural
living persons (right to sue dies with plaintiff - Aston)
Dead cannot be defamed
corporations
(but must attack trading corporation itself eg. fraud, mismanagement
– Mirror Newspapers v World Hosts Pty
Ltd)
government
can’t sue as it attacks free speech (Derbyshire
CC v Times Newspaper)
unincorporated
associations can’t sue as no reputation to preserve

Identification
of the plaintiff

Intent
not relevant, don’t have to know the existence of that person,
as long as prove ordinary reasonable people know (Hulton
v Jones)

Defamation
of a group – (Bjelke-Peterson v
Walburton)

groups
cannot sue
individuals
within a group can sue if they can show that reasonable people
thought that it referred to them as an individual.

Therefore,
in determining whether an individual within a group can sue, look at:

the
size of the group defamed
the
generality of the defamation
the
extravagance of the defamation

Publication

definition:

s6
– ‘it is unlawful to publish defamatory material unless
such publication is protected, justified or excused by law’
communication
of the defamation to anyone other than the plaintiff. Single party
is sufficient (Pullman v Walter Hill &
Co)
sufficient
that the defendant either intends the words to be heard or read by a
third party or they should have foreseen that this would occur Dow
Jones & Company Inc. v Gutnick.

Defences-
Must be established by D on the bal of probs.

JUSTIFICATION
Truth and Public Benefit/Interest

Common
Law – Truth. S13 Defamation Act – Truth and Public
Benefit/Interest. Onus of proof on D on balance of probabilities must
prove true in all but minor details.

Truth
/ Public Benefit Interest:

Defence
of justification requires truth in substance and effect
At
CL (SA, WA NT) truth is a complete defence
(QLD,
Tas, ACT) truth plus public benefit (requires value judgemnet as to
whether the public would benefit from subject being discussed
publicly)
(NSW)
truth plus public interest (public only has a legitimate interest in
the matter if the info is such that a wide cross section of the
public should be aware of it)

Absolute
Privilege

Parliamentary
Proceedings (article 9, Bill of Rights 1688)
Ministerial
Communications, while act in official capacity (Isaac
& Sons v Cook)
Judicial
Proceedings (Cabassi v Vila),
(ss10-12)
Matters
related to court proceedings – solicitor-client in relation to
prospective litigation (Watson v McEwan),
judicial reports
Spousal
communications (Wenhak v Morgan)

Qualified
Privilege (to a certain degree in certain circumstances)

There
must be reciprocity between publisher and recipient (e.g publisher
must have an interest or duty to publish, and recipient have
interest or duty to receive)
Interest
or duty can be public or private
Matters
of public interest
Privilege
will be lost if publisher is actuated by malice or if the
publication exceeds what is reasonable

Fair
Comment: Carelton
v Australian Broadcasting Corporation

A
Fair comment is one about a matter of public interest made honestly
by a person who did not believe the statements to be untrue and is
not otherwise actuated by malice
A
comment is an expression of a personal opinion and must be “honest”
An
opinion can be biased or exaggerated so long as it is honestly held
An
opinion is a “deduction, inference, conclusion, criticism,
judgment or remark”

Constitutional
Protection

Political
Communications:

The
communication must be about a government or political matter.
The
publisher’s conduct must be reasonable- not ‘reckless’.
The
published matter need not be true but the publisher must not be
aware that it is untrue.
The
publisher must not be actuated by malice.

Lange
v ABC

constitution
of Australia entrenched in representative government and responsible
ministerial government
free
speech is not a right gained from the constitution, but an
‘immunity from legal control’
neither
CL or defamation laws can limit range of free communication
necessary to support representative government – not a defence
but ground for appeal.

Innocent
Publication:

Remedies:

Interlocutory
Injunction.
Damages:
Compensatory, Aggravated, Exemplary.
Stop
Writ.
Mitigation:
At Cl, under the Defamation Act 1889 (Qld) court cannot order
an apology or retraction, but if D does, it may mitigate the
damages.

SHORT
ANSWER SECTION

1.14.Nervous Shock

Psychological
illness can be as disabling as physical injury, the law used to
regard ‘invisible’ injuries with mistrust. In the 19^th
century damages for nervous shock were only recoverable as a
consequence of physical injury, per Victorian Railway
Commissioners v Coultas (1988).

The
term ‘nervous shock’ is used to contrast shock with ‘mere
grief and sorrow’, per Brennan J in Jaensch v Coffey
(1985);
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 so
distressing that the perception of the phenomenon affronts or insults
the plaintiff’s mind and causes a recognizable psychiatric
illness

Gradually
the restrictions on recovery eased, as the nature of psychiatric
illness became better understood. In Mount Isa Mines Ltd v Pusey
(1971) Windeyer J described the development as;

Law
marching with medicine but in the rear and limping a little.

First,
in Dulieu v White [1901] it was held that damages for nervous
shock were recoverable in the absence of physical injury to the
plaintiff, but only if the plaintiff suffered shock because of fear
for his or her own life or safety. Then, in Hambrook v Stokes
[1925], it was held that damages for nervous shock were
recoverable if the plaintiff feared for the safety of a close
relative, such as son or daughter.

However,
in Chester v Waverly Corporation (1939), the HCA would not
allow damages for a mother seeing her 7 year old son’s body
pulled from a water filled ditch. Soon, though, it was held, in
Dooley v Cammell Laird Ltd [1951], that damages were
recoverable if the plaintiff suffered nervous shock through fear for
the life or safety of someone other than a member of his or her close
family, such as a workmate. As the workmate is a person of the same
class in the same position.

The
development continued and in 1983 in McLoughlin v O’Brian
held that the test for recoverability of damages for nervous shock
should be based primarily upon reasonable foreseeability of nervous
shock, which means it is very much treated as a physical injury. In
Page v Smith Lord Lloyd said;

Nothing
would be gained by treating them as different “kinds” of
personal injury, so as to require the application of different tests
in law.

Where
the relationship between plaintiff and defendant gives rise to a duty
of care, the question of recoverability of damages for nervous shock
is one of remoteness of damage. If an employee suffers nervous shock
as a result of his or her employer’s negligence, the question
is whether the nervous shock suffered is of a kind that was
reasonably foreseeable, or whether it was too remote a consequence of
the negligence, per Mount Isa Mines Ltd v Pusey. However,
where there is no pre-existing relationship that gives rise to a duty
of care, the question is whether the defendant owed the plaintiff a
duty to take reasonable care not to cause nervous shock. This is
determined primarily by considering whether nervous shock to someone
such as the plaintiff was reasonably foreseeable, applied in FAI
General Insurance Co Ltd v Curtin (1997).

This
was established in Jaensch v Coffey, (1985), where the
plaintiff`s husband, a police motor-cyclist, was baldy injured in a
collision with the defendant. The plaintiff saw her husband in severe
pain between a series of operations. She feared he would die.
Although he recovered, the plaintiff’s experiences caused her
to develop severe anxiety and depression. She sued, alleging that
nervous shock had been caused by the negligent driving. The HCA held
unanimously that the defendant owed the plaintiff a duty of care in
respect of the psychiatric injury that she suffered. Deane J
described the proximity factors that affect the requirement of
proximity. Those that give rise to proximity include; plaintiff’s
fear for his/her life or safety or that of some other person, not
necessarily a close person, the plaintiff either seeing or hearing
death or injury to another, or seeing or hearing the immediate
aftermath of an accident either at the scene or elsewhere. Usually
there will not be damages if the psychiatric illness was not as a
result of physical injury to someone, or sustained as a result of
injury, death or peril to the defendant.

In
Alcock v Chief Constable of South Yorkshire Police [1992],
there were too many people in the stadium, it collapsed killing 95,
and injuring 400. At first instance it was held that people who had
relations and were at the stadium (temporal relationship) could
claim. Those watching the live broadcast and knew of relations at the
game could claim, but no liability unless it was a spousal, parental,
sibling or offspring relationship. No claim for family who just heard
about it.

On
appeal, the Court of Appeal said no TV viewers, and no duty to
siblings, just spouse, parents and children.

Then,
at the House of Lords, the relationship proximity was held to be
anyone proved to have love and affection, certain ties being presumed
to contain these, ie parents, child, spouse (although rebuttable if
divorce etc), other relationships must prove love and affection.
Also, there must have been physical proximity to those present, not
over the TV (this was a policy decision). Seeing the body at the
morgue for confirmation of death was held not to be the aftermath.

In
Petrie v Dowling (1989) a mother was told her daughter was
injured. She went to hospital and asked jokingly if her daughter was
dead. The nurse replied insensitively that she was. As result she
suffered nervous shock, the Supreme Court of Queensland held that the
plaintiff could recover for nervous shock even though she saw
nothing, hearing can be the aftermath. This was a dangerous ruling,
as the shock was largely due to the nurse’s insensitivity the
original tortfeesor might have an action against the insensitive
conveyor.

In
Attia v British Gas Plc (1988) the Court of Appeal held that a
plaintiff who suffered psychiatric illness as a result of witnessing
damage to their property could recover damages if they could prove
that nervous shock was reasonable foreseeable by the defendant’s
negligence and that the negligence caused the shock.

In
Campbelltown City Council v Mackay (1989) the NSW Court of
Appeal held that the plaintiffs could claim nevous shock for damage
to their dream home by the defendants, but only if the shock was
sudden, which, in this case, it was not.

Current
Position of nervous shock (overview);

It
must be shown that;

1.
They suffered actual psychiatric injury

Hinz
v Berry (1970) per Denning LJ; ‘any recognized illness
caused by the breach of duty by the defendant’

Mount
Isa Mines v Pusey (1970) per Windeyer J; ‘a lasting
disorder of mind or body, some form of psychoneurosis or
psychosomatic illness’

It
is referred to as Post Traumatic Stress Disorder, more than Nervous
shock.

2.
It must result from shock, not grief or emotional exhaustion

Per
Brennan J, Jaensch v Coffey; Shock is sudden sensory
perception – by seeing, hearing or touching – of a
person, thing or event, which is so distressing that the perception
of the phenomenon affronts or insults the plaintiff’s mind and
causes recognizable psychiatric illness.

3.
Psychiatric illness must be reasonably foreseeable

It
must be reasonably foreseeable that a person of average mental
stability would suffer nervous shock. Torts abides by the egg shell
skull rule, but NOT for psychiatric illness per McLoughlin v
O’Brian (1983). In Page v Smith (1996) Lord Lloyd
said; Nothing would be gained by treating them as different “kinds”
of personal injury, so as to require the application of different
tests in law. This was established in 1970 in Mount Isa Mines v
Pusey for instances of pre-existing relationships where duty of
care existed. For non duty of care relationships FAI Insurance Co
Ltd v Curtin established reasonable foreseeability of nervous
shock.

4.
There is a requisite of proximity

Established
by three variables; close relationship with original victim; physical
proximity; or shock brought by seeing or hearing of the accident or
its aftermath.

Jaensch
v Coffey (1984) – aftermath, brought wife to hospital, saw
husband in pain, feared for his life, developed depression, developed
med problems.

Petrie
v Dowlling (1989) – aftermath includes hearing of death, as
mother suffered psych illness without seeing, inly hearing.

Spence
v Percy (1992) – daughter injured, was in coma 3 years,
mother irrationally believed she would recover. Daughter died, mother
suffered nervous shock. Argued by defendant that it was too remote
and the mother was not of average mental stability.

Held
at first instance; time doesn’t count, but psych illness as
result of death was foreseeable, therefore doesn’t matter if
she was more vulnerable as a result of the 3 yrs of stress.

On
appeal; amount of time between death and accident too much. Too much
happened between and because of this it is not ‘sudden’
shock.

Alcock
v Chief Constable of South Yorkshire Police (Jones v Wright)
[1991] – Duty to spouse, children and parents who saw, but not
on TV. No claim for hearing.

Hancock
v Wallace (2001) – Car accident, alive person
unrecognizable, dead person in pieces. Father of dead victim knew
person was decapitated. Dental x-rays used to identify. It took a few
hours, then father suffered nervous shock. Held OK.

1.15.BREACH OF STATUTORY DUTY

Introduction;

In
an action for breach of statutory duty, the duty is imposed on the
defendant by statute. The action for breach of statutory duty may
succeed where an action in negligence would fail, Betts v
Whittingslowe (1945) 71 CLR 637.

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

Most
statutes merely provide for a penalty for breach; for example, a fine
imposed on a person who has failed to fence a dangerous piece of
machinery. Prima facie, where a statute provides only for a penalty
for a breach of duty, it is assumed that parliament intended for that
penalty to be the only sanction for breach, and that it was not
intended for private individuals to be able to sue for breach of that
statute. This assumption was stated by Lord Tenterden CJ in Lord
Bishop of Rochester v Bridges (1831) 109 ER 1001 at 1006; “where
an Act creates an obligation, and enforces performance in a specified
manner, we take it to be a general rule that performance cannot be
enforced in any other manner.”

However,
there are now more exceptions to this ‘general rule’ than
there are examples of it. In O’Connor v SP Bray Ltd
(1937) the plaintiff was a cleaner at the defendant’s premises,
which contained a lift. He arrived at work to find his shovel jammed
between the lift and the upper floor. He walked into the lift and
pulled at the shovel to free it. The lift dropped to the lower floor
and the cleaner was injured. He sued the defendant, alleging that it
had breached the duty imposed by regulation 31(b) of the Scaffolding
and Lifts regulations (NSW), which provides; “safety gear to be
provided for all lifts excepting direct-acting lifts and service
lifts in which no person travels.” The lift was not a
‘direct-acting’ lift and had no safety gear. The HCA held
that the plaintiff’s action for breach of statutory duty
succeeded, even though the regulations provided for a penalty for the
breach. Dixon J suggested that where a provision is for safety of the
public, a duty gives rise to a ‘correlative private right’.

Basically,
where a statutory provision is concerned with safety, the court is
prepared to assume that breach of that statutory provision gives rise
to a private cause of action, even though this is not necessarily
indicated by the as intended by parliament. In Byrne v Australian
Airlines Ltd, (1995) McHugh and Gummow JJ referred to Maxwell in
The interpretation of statutes “benefit of the doubt
should be given to those who might be prejudiced by the exercise of
the powers that the enactment grants, and against those who claim to
exercise them.”

In
Phillips v Britannia Hygienic Laundry Co [1923] 2 KB 832, the
plaintiff’s car was damaged by one of the wheels of the
defendant’s truck, which had fallen off when the axle broke.
The unroadworthiness of the defendant’s truck was a breach of a
statutory duty imposed under the Locomotives on Highways Act 1896
(UK), but the court of appeal held that the duty of roadworthiness
imposed by the statute was for the safety of the public at large, and
was not owed individually to each member of the public who might
suffer damage or injury as a result of a breach.

In
Chordas v Bryant Pty Ltd (1988) 20 FCR 91; the plaintiff
alleged that his injuries were caused by the defendant hotel’s
breach of the Liquor Ordinance 1975 (ACT) s 79, in continuing to
serve King with liquor when it had reasonable grounds for believing
that he was intoxicated. The General Division of the Federal Court of
Australia held that s 79 did not confer a private right of action.

In
Cutler v Wandsworth Stadium Ltd [1949] AC 398, the plaintiff
bookmaker sued the defendant operator of a licensed dog-racing track,
for failing to provide him with space at the track where he could
carry on business as a bookmaker. The plaintiff alleged that the
defendant had breached the Betting and Lotteries Act 1934 (UK). The
House of Lords held that it did not confer a private right but was
enforceable only by criminal proceedings for the penalties imposed by
the Act.

Conversely,
if the statutory provision is designed for the protection of a
particular class of individuals, rather than the public at large, and
does protect interests that would otherwise be protected at common
law, the court assumes that the provision confers a private right of
action on members of the protected class. As supported by Kitto J in
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397.

Was
the plaintiff a member of the protected class?

If
the statutory provision is for the protection of an identifiable
class of persons, the plaintiff must be a member of that class if he
or she is to have a right to sue for breach of the statutory duty.

In
Read v Croydon Corporation [1938] 4 All ER 631 the first
plaintiff, a child, contracted typhoid after drinking water supplied
by the defendant corporation. Her father, the second plaintiff,
incurred expenses in looking after her. It was alleged the corp had
breached it’s duty under the Waterworks Clauses Act 1847 (UK) s
35, to provide ‘pure and wholesome water’ to ‘all
inhabitants of the town…who…shall be willing to pay a
water rate for the same.’ The court held that the statute
conferred no right of action on the plaintiff child, as she was not
the ratepayer. However, the adult plaintiff’s claim succeeded,
as he was the ratepayer.

A
legislative intention to protect a particular class of persons may be
inferred from the nature of the risk against which the statutory
provision is directed, as it was in Read’s case. As
Kitto J put it in Sovar’s case, the class of plaintiffs
is ‘indicated by the nature of [the] peril’.

In
Pask v Owen [1987] 2 QdR 421, the defendants gave their 15 yr
old son an airgun and ammunition. The defendants knew that the son
allowed the plaintiff, a school friend aged 13, to handle the gun and
the ammunition. Plaintiff accidentally shot self in eye, claimed
breach of Firearms and Offensive Weapons Act 1979 (Qld) s 63(2). The
defendants’ son was a ‘prevented person’ for the
purposes of the Act. The Full Court of the Supreme Court of
Queensland held that it did confer a private right of action on the
plaintiff to complain of the defendant’s breach.

Was
the statute directed at preventing the kind of harm suffered by the
plaintiff?

Just
as the plaintiff must be a member of the class of persons that the
statute was intended to protect, so also the harm that the plaintiff
has suffered must be the kind of harm against which the statute was
directed, or no private cause of action will arise.

In
Gorris v Scott (1874) LR 9 Ex 125, the plaintiff’s sheep
were washed overboard while they were being carried on the
defendant’s ship. The ship had no pens for the sheep to stand
in, as required by the Contagious Diseases (Animals) Act 1869 (UK), s
75. The plaintiff sued the defendant, alleging his sheep would not
have been lost had the duty not been breached. The Court held,
although the defendant breached the duty the action failed as the
loss was ‘not contemplated at all by the statute.

In
Mummery v Irvings Pty Ltd (1956) 96 CLR 99, the plaintiff
entered the defendant’s sawmill to buy some timber. The foreman
was operating a saw, wood flew off and hit pl in the face. Pl sued
alleging breach of Factories and Shops Act 1928 (Vic), s 59(1)(a),
which provides, ‘Every occupier of a factory shall provide
guards for…all dangerous parts of the machinery of the
factory…’ The saw had no guard attached, however HCA
held (following Nicholls v F Austin Ltd [1946] AC 493) that
the plaintiff’s action for breach of statutory duty failed, as
the obligation to fence machinery under s 59(1)(a) was designed to
protect against the risks directly posed by the ‘dangerous
parts’ of machinery, such as direct contact, not indirect
contact.

The
statutory duty must have been imposed on the chosen defendant;

As
the plaintiff’s cause of action arises out of the statute, the
action can only be against the person on whom the statute imposes a
duty.

In
Darling Island Stevedoring and Lighterage Co Ltd v Long (1957)
97 CLR 36, the plaintiff was a stevedore who was injured while
unloading a ship, when part of the cargo hit the ship’s hatch
beams, which had been left on during unloading. He brought an action
against the employer alleging breach of the Navigation Regulations
(Cth), which provided the hatch beams be removed while unloading or
loading. The HCA held the pl’s action failed because it
conferred a duty on the ‘person in charge’, which in this
case, was the foreman of the stevedore gang, not the employer.
Although the employer would have been liable by vicarious liability
at common law, the statute specifically imposed the duty on the
foreman not the defendant.

In
Progress & Properties Ltd v Craft (1976) 135 CLR 651, the
plaintiff was injured when riding on a goods hoist on a building
site. The operator’s foot slipped off the brake, the hoist fell
to the ground. Pl sued the def, which employed him and the operator,
alleging breach of Scaffolding and Lifts Act 1912 (NSW), which
provided; ‘the speed at which any load is raised or lowered
shall not exceed 6oo ft per minute.’ The HCA held unanimously
that the plaintiff’s action succeeded. Jacobs J emphasized
there was nothing to suggest there was no vicarious liability.

Has
the statute been breached?

The
plaintiff need only prove that the defendant has breached the duty
imposed by the words of the statute.

In
Galashiels Gas Co Ltd v O’Donnell [1949] AC 275, def
under stat obligation by Factories Act 1937 (UK) s 22(1), ‘every
hoist or lift shall be of good mechanical construction, sound
material and adequate strength, and be properly maintained.’
The HoL held these words imposed an absolute obligation, also the pl
was not required to prove there was an alternative safer solution.
However, not all stat prov’s impose an absolute obligation, a
lesser duty such as reas care may be imposed.

In
Waugh v Kippen (1986) 160 CLR 156, the plaintiff was injured
while moving a heavy steel beam. He sued his employers, alleging that
they had breached a rule made under the Factories and Shops Act 1960
(Qld), ‘A male employee over 18 years of age shall not be
permitted or allowed to lift, carry, or move by hand any object so
heavy as to be likely to cause harm or injury.’ The HCA held,
this rule did not cast an absolute liability on the def. The words
‘permitted or allowed’ presupposed an awareness on the
behalf of the employer that the employee was engaged in moving the
object.

Causation;

The
plaintiff must prove that the defendant’s breach of statutory
duty caused his or her injuries. This is usually a question of fact,
determined by the principles discussed ch 4 of Davies. The principle
was basically determined in Vyner v Waldenberg bros (1945) 61
TLR 545 by Scott J as, where there is a breach of stat duty coupled
with an accident of the kind that might be caused by that breach of
duty, the thing speaks for itself, and the onus falls to the def to
prove it did not cause the damage. This was supported by Dixon J in
Betts v Whittingslowe (1945) 71 CLR 637.

In
John Pfeiffer Pty Ltd v Canny (1981)148 CLR 218, the plaintiff
was injured when struck in the head by a steel pin fired from an
explosive-powered gun fired by a fellow employee. That employee was
not a qualified operator for the purposes of the following regulation
of the Scaffolding and Lifts Regulations (NSW). The pl sued the
employer, alleging the injuries were caused by the breach. The HCA
distinguished it from Leask Timber, and allowed the action.
Leask Timber; husband killed by crane when crane driver not
qualified. Held that no breach of duty, but bad driving. Viewed as
excessively narrow.

Defences;

Except
in NSW and ACT, there is apportionment of liability if contributory
negligence, even though breach may not be a negligent act/omission.
Kakouris v Gibbs Burge & Co (1970) 44 ALJR 384 (HCA).

1.16.FORESEEABILITY

Foreseeability
relates to the ability to foresee an accident from the point of view
of any reasonable person in the position of the defendant.

As
such, foreseeability is necessary in order to determine whether it
was possible for the defendant to predict that his or her
carelessness might have had negative consequences for others.

Foreseeability
assists the court in the formulation of a relevant standard and in
determining whether or not that standard was breached.

The
test for foreseeability differs at the duty, breach and remoteness
stages of negligence by way of specificity.

At
the duty stage the test of foreseeability depends upon proof that the
defendant and plaintiff are so placed in relation to each other that
it is reasonably foreseeable as a possibility that careless conduct
of any kind on the part of the defendant may result in damage
to the plaintiff (Chapman v Hearse).

Breach
requires proof that it was reasonably foreseeable as a possibility
that the kind of carelessness exhibited by the defendant might
cause damage of some kind to the plaintiff (Wagon Mound 2).

Remoteness
is only passed if the plaintiff proves that the kind of
damaged suffered was foreseeable as a possible outcome of the kind
of carelessness charged against the defendant (Mount Isa Mines v
Pusey).

1.17.PROXIMITY

Proximity
relates to the special degree of closeness between the defendant and
the plaintiff. As a test, proximity assists to identify those
persons (if any) who were most appropriately placed to take care in
the avoidance of damage.

Proximity
can be classified into three categories in order to determine whether
this ‘special degree of closeness’ exists.

Physical
proximity relates to the direct closeness between the plaintiff and
the defendant so that a physical link can be established in relation
to the plaintiff’s loss.

Circumstantial
proximity relates to the existence of an overriding relationship
between the two parties, such as professional/client.

Casual
proximity examines the link between the act (or lack of) by the
defendant and the plaintiff’s injuries to establish a chain of
events leading to the plaintiff’s injury.

Deane
J originally introduced the concept of proximity by distinguishing it
from the interpretation of reasonable foreseeability and
neighbourhood originally proposed by Lord Aitken in Donoghue v
Stevenson. Deane J said that the concept of proximity should act
as an additional limiting factor over and above reasonable
foreseeability.

Thus,
according to Deane J, Donoghue v Stevenson actually imposed a
two-stage test of reasonable foreseeability and proximity. This was
evidenced in Sutherland Shire Council v Heyman.

Deanne
J’s proximity test was adopted by the High Court in Gala v
Preston where it was proposed that “the requirement of
proximity constitutes the general determinant of the categories of
case I which the common law of negligence recognizes the existence of
a duty to take reasonable care to avoid a reasonably foreseeable and
real risk of injury”.

However,
in the same judgment it is interesting to note that the High Court
seem to then give effect to the three-stage test developed in Caparo,
and adopted by Kirby J in Pyrenees, whereby “in
determining whether the requirement is satisfied in a particular
category of case in a developing area of the law of negligence, the
relevant factors will include policy decisions”.

Brennan
J rejected the concept of proximity in favour of an ‘incremental
approach’ in Sutherland Shire Council v Heyman and later
in Hill v van Erp. Brennan J favoured the development of the
law of negligence in novel categories incrementally and by analogy
with established categories. He favoured this approach due to what
he perceived as the ‘massive extension of a prima facie duty of
care restrained only by indefinable considerations which ought to be
negative, or to reduce or limit the scope of the duty or the class of
person to whom it is owed’. Thus the incremental approach was
based on deciding each case in its own facts by reference to earlier
decisions.

1.18.CAPARO TEST

By
abandoning the three-stage test developed in Caparo and
rejecting the appeal in Sullivan v Moody, primarily on
legislative and judicial policy grounds, the High Court is
contradicting itself and clearly attempting to cloak the issue of
judicial creativity behind some form of yet to be developed test.

With
the expansion of the duty of care for negligent actions in Donoghue
v Stevenson the courts have been attempting to establish a
suitable test that would limit the issue of indeterminacy of action.
The three-stage Caparo test attempted to do this.

Caparo
Industries v Dickman established the three-stage test championed
by Kirby J and applied in Pyrenees Shire Council v Day. The
test was established to determine whether a legal duty of care exists
according to the criteria of:

Was
the injury reasonably foreseeable to the defendant that the
particular conduct or an omission on its part would be likely to
cause harm to the person who has suffered the damage or a person in
the same position?
Does
there exist between the defendant and the plaintiff a relationship
characterised by the law as one of proximity or neighbourhood?
If
so, is it fair, just and reasonable that the law should impose a
duty of a given scope upon the defendant for the benefit of the
plaintiff?

Sullivan
v Moody rejected the use of the Caparo test based on the two key
elements of proximity and the discretionary considerations involved
in using policy to determine the outcome of legal disputes rather
than established principles.

As
such, with the rejection of the Caparo test, the High Court appears
to have moved towards Brennan CJ’s use of the incremental
approach (see above) or at least the ‘salient features’
approach put forward by Gummow J in Perre v Apand.

1.19.DUTY OF CARE IN NOVEL CASES

The
High Court’s approach to the duty of care issue in novel cases
appears to be that a duty of care will be imposed when it is
reasonable in all the circumstances to do so. An evaluation of the
factors relevant to the claim will be undertaken to arrive at a
conclusion based on principle.

With
the abandonment of the Caparo test, the courts have actually
increased the requirement to apply policy considerations to the
application of a duty of care. The third stage of the Caparo test
merely highlighted that the courts use of policy considerations in
the use of the terms ‘fair, just and reasonable’.

1.20.NUISANCE

Comparisons:

Nuisance
& Negligence:

Negligence
– liability is based on the unreasonableness of the
conduct causing the damage; Fault depends on the breach of a
duty. Breach judged on reasonableness of conduct by balancing risks
of conduct. Calculus of neglect requires proof of
damage which is caused by D and is reasonably foreseeable.

Nuisance
– liability is based on the unreasonableness of the
interference itself; Fault depends on whether D created the
nuisance. Therefore conduct giving rise to nuisance may be perfectly
reasonable, but the resultant interference may be totally
unreasonable. Calculus of nuisance requires proof of
damage which is caused by D and is reasonably foreseeable.

Claims
in both negligence & nuisance require proof the damage was
Reasonably Foreseeable.

Nuisance
v Tresspass:

Nuisance’s
are indirect interferences, which can be intentional
or unintentional, with use & enjoyment of land.

Trespass
must be a direct interference with land.

Nuisance
requires proof of the unreasonable interference with
use & enjoyment.

Trespass
is actionable per se, regardless of whether it
impacts on the use & enjoyment of land

Nuisance
protects against physical injury and interference with use and
enjoyment of land

Nuisance
is intangible invasions (noise, smell, vibrations)

Trespass
is physical intrusions by tangible objects (people, cattle, rubbish
etc)

1.21.Introduction - the Difference between negligence and trespass

Trespass
= all wrongful direct and intentional interferences with person,
land and goods

Originally
focussed on conduct likely to lead to a breach of the peace by
provoking immediate retaliation

No
proof of actual damage is required - it is actionable per se
(invasion of rights is regarded as a wrong in itself)

Burden
of proof lies on P to establish the fact of the interference, but
the burden then shifts to the defendant to show that they were no at
fault.

Creates
inconsistency in cases where action is based on both negligence and
trespass McHale v Watson.

	Trespass	Negligence
Definition	Intentional negligent or reckless act of D which directly causes an injury to P’s person or property without lawful justification.	Failure of D to take reasonable care to prevent foreseeable harm to P’s person, property or economic interests.
Elements	Intentional negligent or reckless act Injury must be direct Injury to P’s person or property No lawful justification.	Duty of Care Breach Damage/Loss caused by breach not too remote
Nature of Action Fault based or strict liability	DIRECT INTENTIONAL OR NEG. ACT FAULT BASED	INDIRECT OR CONSEQUENTIAL ACT OR OMISSION FAULT BASED
Onus of Proof	P proves direct interference with right then onus shifts to D to disprove fault. Ie neither intentional, negligent or reckless except for highway cases where onus remains on P throughout	P has the burden of proving all of the elements Ie Onus is on P throughout
Is damage required	Actionable per se (no need to prove damage)	P must show actual damage.

Cause
of Action : consists of those facts which, if proved,
establish a claimants right to a legal remedy or relief

TRESPASS:
An intentional, negligent, or reckless act of D’s, which
directly causes an injury to P’s person or property
without lawful justification.

Trespass
developed as a:

peacekeeping
function
deterrent
of socially undesirable behavior
prevention
against conduct that would lead to immediate retaliation
fault
was in the breach of the interest
law
not interested in D’s intentions but rather in the causal
sequence of events-so long as DIRECT it didn’t matter that D
did not intend the consequences of his/her voluntary act

ELEMENTS
OF TRESPASS

Intentional
reckless or negligent act (voluntary) (in descending order of
intention)
Injury
must be direct
Injury
maybe to the plaintiff’s person or property
No
lawful justification

PROTECTED
INTERESTS & NATURE OF INTERFERENCE/REMEDIES

Interests
protected- physical/mental integrity and property interests
(land and chattels)
Nature
of interference – Direct
Fault
required – intentional negligent or reckless act
Act
must be voluntary and a positive and affirmative action (not
omission)
Proof
of Damage - not necessary to prove actual damage –
Actionable per se
Remedies
– nominal, compensatory, aggravated and exemplary damages;
self-help; injunction

DIRECT

The
injurious effect upon the P must follow directly upon the D’s
act i.e. the D’s act must directly cause the interference
complained of.
Immediacy
is one means of establishing directness but it is not always
necessary where there are no intervening causes between the act and
its consequences.
- Throwing
  of lighted squib Scott v Shepherd (1773)
TIP
– Consider P’s HARM & D’s
CONDUCT

INTENTIONAL/VOLUNTARY
ACT

Intention
is relevant in respect of the act causing the interference
The
D does not have to intend the damage/just the act causing the
interference i.e. the D must have intended, be reckless to, or
negligent as regards the interference with the P’s
person/property
The
act must be voluntary(not brought about by an epileptic fit or the
force of a third party) and must be a positive act not omission to
act

BURDEN
OF PROOF IN TRESPASS

Onus
is on P to establish direct interference then shifts to D
to disprove fault i.e. that D’s interference was neither
intentional negligent or reckless.
- exception
  for highway trespasses: (Must involve a motor vehicle) onus is
  on the P to prove all elements – both interference and D’s
  fault Venning v Chin

ACTIONS
ON THE CASE

ACTIONS
ON THE CASE’ arose to compensate for damage from
consequential actions flowing from the trespass (full title-
action on the case of trespass)

Assault,
battery, false imprisonment, and trespass to land are species of the
genus trespass.
The
torts of negligence, nuisance and defamation are species of actions
on the case.
There
is a hybrid cause of action known as negligent trespass

NEGLIGENCE:
An action in negligence is founded when a person or property is
injured by the failure of another to take reasonable care
to prevent foreseeable harm. There must be a breach of duty which
causes a loss to the P

Unlike
trespass which only redresses injuries directly caused
by positive conduct, negligence redresses
omissions to act as well as wrongful positive acts.

ELEMENTS
OF NEGLIGENCE

Duty
of care owed by D to P
Breach
of the duty of care
Damage
suffered by P (No damage / no negligence)
Damage
must be caused by D’s breach
Damage
must not be too remote
Defences
can be raised by D

PROTECTED
INTERESTS & NATURE OF INTERFERENCE

Protected
Interests-right to physical and emotional integrity, and
property and economic interests
Nature
of interference- Indirect or consequential act or
omission
Fault-
breach of duty of care causing damage which is not too remote
Proof
of damage- P must prove actual damage ‘damage is the
gist of negligence’
Remedies-
Compensatory, aggravated. Exemplary damages in very rare cases where
negligence. Personal Injuries Proceedings Act 2002 (Qld)
limits availability of exemplary damages

BURDEN
OF PROOF IN NEGLIGENCE

The
P must prove all the elements i.e. Duty, Breach, Damage caused by
the breach and not too remote. The onus then shifts to the D to
plead and establish defenses.
It
doesn’t matter where the negligence occurs i.e. no distinction
between highway and non-highway negligence

OVERLAP
BETWEEN TRESPASS & CASE

No
overlap between trespass & case where the injury /damage arose
through intention or indirectly

BUT

Where
the damage caused directly by D’s negligence
both causes of action available (negligent trespass or negligence)
Williams v Milotin (1957)
Note
in England negligent trespass no longer exists
Because
of distinctions there may be an advantage in suing in trespass
rather then case

ADVANTAGE
OF SUING IN TRESPASS

Onus
of Proof- P need only prove direct interference. The onus then
shifts to D to disprove fault (i.e. neither intentional negligent or
reckless) Hackshaw v Shaw (1984). Off-highway trespass
treated as negligence with P having to prove that D was negligent

Proof
of Damage – trespass is actionable per se- so even if no
actual injury or damage P can get substantial damages such as
aggravated or exemplary damages

1 comment:

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Law School Notes

Sunday, January 11, 2009

Torts Bible Full.doc

Negligence Template

1.1.Duty of Care

1.2.Breach of duty

1.3.Damage

1.4.CAUSATION

1.5.Remoteness

1.6.Defences

Trespass To The Person

1.7.Battery Template

Onusof Proof

1.8.Assault Template

1.9.False Imprisonment Template

Trespass to Land template

Vicarious Liability & nON dELEGABLE DUTY

1.10.Vicarious Liability Template

ELEMENT3: Was the employee actingin his course of employment?

TEST1: Control Test - Original Test

1.11.NON-DELEGABLE DUTY

If[Employee] not classed as employee is there a non-delegable duty?

Nuisance:

1.12.PRIVATE NUISANCE (PRIVATE LAND) TEMPLATE

1.13.PUBLIC NUISANCE (PUBLIC LAND)

AdditionalNotes:

PersonalInjury

Natureof the Interference

Examplesof Interference with Public Amenity

DEFAMATION

SHORT ANSWER SECTION

1.14.Nervous Shock

1.15.BREACH OF STATUTORY DUTY

1.16.FORESEEABILITY

1.17.PROXIMITY

1.18.CAPARO TEST

1.19.DUTY OF CARE IN NOVEL CASES

1.20.NUISANCE

1.21.Introduction - the Difference between negligence and trespass

1 comment:

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About Me

Negligence
Template

Trespass
To The Person

Onus
of Proof

Trespass
to Land template

Vicarious
Liability & nON dELEGABLE DUTY

ELEMENT
3: Was the employee acting
in his course of employment?

TEST
1: Control Test - Original Test

If
[Employee] not classed as employee is there a non-delegable duty?

Additional
Notes:

Personal
Injury

Nature
of the Interference

Examples
of Interference with Public Amenity

SHORT
ANSWER SECTION