Negligence and strict liability, Summaries of Law

Download Negligence and strict liability and more Summaries Law in PDF only on Docsity! NEGLIGENCE Notes Introduction Negligence has been so pervasive, that it has transformed even the strict liability tort of trespass, such that fault is required. The case of Stanley v Powell [1891] 1 QB 86, it was held that where there is no intent, and negligence is negatived, the plaintiff cannot recover whether he framed the action in trespass or case. Thus, it has been a unifying force in tort law, by requiring fault before liability is imposed. However, it has also had a counter-balancing potential, as by expanding liability laterally, it has made the question of causation more complex - extending it to omissions, and other more complex connections which weren’t ever envisaged by the tort of trespass. Further, the concept of fault, introduced to provide interpersonal justice, has now expanded to consider questions of social needs, distributive justice and stricter liability. With the mid-20th Century, the law of tort has become more a tool to compensate accident victims, and distribute cost among those best able to bear it, than an admonitory tool. Thus, the lack of consensus as to the purpose of tort law, and its relative inability to cope with the question of accident compensation in a welfare-driven society has meant that the system is under constant stress. DUTY OF CARE Introduction Negligence is the breach of a legal duty of care by an inadvertent act or omission which injures another person. The Elements Negligence involves: A duty of care - the D owed the P a duty to take care in the circumstances. A breach of that duty - the D’s act/omission failed to reach the standard of carefulness required by the circumstances and so there is a breach of the duty to take care. Causation - the D’s breach caused the P’s damage Damage - the damage P suffered is legally recognizable and not too remote from the breach of duty. Donoghue v Stevenson [1932] AC 562 established the tort of negligence. Lord Atkin saying that “In English law, there must be and is some general conception of relations giving rise to a duty of care…” The House of Lords found that the P could recover damages from the manufacturer, even though there was no contract between the parties, where negligence allowed the snail to enter the bottle. Lord Atkin enunciated the neighbour principle: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.” Who then is your neighbor? “Persons who are so closely and directly affected by one’s act that one ought reasonably to have them in contemplation.” The Duty of Care For an action in negligence, the D must owe a duty of care to the P in the given circumstances. Ld Atkin in Donoghue v Stevenson [1932] AC 562 said: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” Thus, the test to establish a duty of care is: (i) reasonable foreseeability (ii) proximity (or the tests which have replaced it) where there isn’t an established duty of care. The Notion of Reasonable foreseeability The duty of care is primarily premised on reasonable foreseeability, as no liability will arise in its absence. This is a question of law, and in standard cases, such as motor accidents, manufacturers of defective goods and so on, the foreseeability of harm where there is a lack of care, it is obvious in the circumstances, and the precedents are well-established, and it is not an issue. Reasonable Foreseeability as an Essential Test for Duty Nova Mink v Trans Canada Airlines [1951] 2 D.L.R. 241 During whelping season, mink, they are prone to devour their young when frightened by noise. The Court held that once the defendant is “apprised” of this harm, they may be required to alter their activities such that the risk is reduced or eliminated - that is desist from flying low over the ranch - to show that reasonable care had been taken. in many other situations is the influential, if not decisive, determinant of the existence of a relationship of proximity. (ii) The giving of a warning that the ledge was unsafe for diving was the action that a reasonable person in the respondent’s situation would have taken to guard against the foreseeable risk of injury which existed. (iii) The likelihood was that the appellant would have been deterred from diving by an appropriate warning sign. Bryan v Maloney (1995) 69 ALJR 375 Bryan, a professional builder for the Qs, who sold it to Mrs Maloney, who upon inspection, found nothing to be wrong with the property. However, within 6 months, there were cracks in the house, and extensive damage was suffered. The damage was caused because Bryan hadn’t laid the footings properly. Mrs Maloney was successful at first instance. On appeal to the HC, the question was whether the relationship between Bryan and Mrs Maloney was sufficiently proximate to attract liability. The Court held that as a house is the most significant investment a buyer it is reasonably foreseeable that the builder’s negligence would cause economic loss not only to the first buyer, but also to subsequent buyers. Further, it was held that there was a causal proximity between subsequent buyers and the builder. It was held that the relationship between the builder and the subsequent owners was comparatively similar to that between the builder and the original owners. The HC held that had the building collapsed and caused personal injury or property damage, the builder would be liable, so there is no reason why the builder should not be liable for the economic loss incurred in rectifying the situation. The builder argued that allowing liability to be incurred would cause an indeterminate liability. However, the HC held that this was not so, as the builder would only be liable once, after which the building is fixed. Thus, a new, novel tort liability of economic loss for a subsequent loss to a subsequent owner due to a builder’s negligence was found. It is worth noting that Brennan J found the notion of proximity to be too elastic to provide any real test. Proximity Downgraded/Abolished Hill v Van Erp (1997) 71 ALJR 487 Hill drew up Mrs Curry’s will and got Mr Van Erp to witness the will, which included Mrs Van Erp as one of the beneficiaries. However, s 15(1) of the Succession Act 1981 (Qld) states that where a beneficiary’s spouse witnesses the will, then, that disposition is null and void. So, the bequest Mrs Curry had left Mrs Van Erp went to Mrs Curry instead, and Van Erp sued Hill for negligence. Hill admitted the negligence, but argued that she did not owe a duty of care. At first instance, Mrs Van Erp was successful. In dismissing the appeal by Hill, the HC took the opportunity to downgrade the significance of proximity. Dawson J (with whom Toohey J concurred) stated that: (i) proximity is: - not a unifying principle - not a universal determinant of the existence of a duty of care. However it: - expresses a result, rather than a process - and is a convenient way of labeling the extra requirement, in addition to reasonable foreseeability to establish a duty of care. (ii) Further, he put forward a three stage inquiry in order to establish a duty of care: (1) Is the harm reasonably foreseeable? Noting that more than reasonable foreseeability alone is required. (2) Where a new category of liability is suggested, examine established categories by way of analogy to achieve incremental development. (3) Determine whether the incremental development is justified by reference to policy considerations. (iii) He held that imposing liability on a solicitor was consistent with community standards, and further, that liability was not undeterminant. It was held to be determinant by the contents of the will. Further, it does not conflict with contractual obligations, as contractual and tortious liability can be concurrent. Further, he held that there needs to be special consideration in relation to wills, as the defects will not become apparent until after the death of the testatrix. The specificity of the the situation with regard to wills in relation to beneficiaries distinguishes it from other third parties. It was held that finding the solicitor liable in such a situation does not curtail their legitimate pursuit of commercial advantage. It was further held that the community relied on solicitors as specialists. This decision brought Australia in line with other common law countries Perre v Apand (HC) [1999] 73 ALJR 1190 Apand was the distributor of potato seeds, and had negligently provided seeds diseased seed to the Sparnons - the owners of the property next to the Perres. They produced a crop infected with bacterial wilt. Whilst the Perres crop was not infected, they exported the bulk of their crop to WA, where there was legislation prohibiting the sale of potatoes grown, harvested, packed or cleaned anywhere within a 20 km radius of where the infected crop was. The Perres sued Apand for damages for negligence. It was not disputed that the loss suffered by the Perres was reasonably foreseeable and the evidence revealed that Apand knew persons such as the appellants would be liable to suffer economic loss in the event of an outbreak of bacterial wilt. Apand argued that imposing a duty of care in this situation would impose an indeterminate liability for an indeterminate time and to an indeterminate class of persons. Further, they argued that a duty to take care to avoid economic loss to another was inconsistent with commercial standards, these being that one is free to gain an economic advantage. However, the Court held that there was a determined class of people - those within 20 km radius of the affected property, and that it did not unreasonably deter economic freedom. The HC allowed the appeal, and in doing so, replaced the notion of proximity with five different tests: (1) The protected Interests and salient features test (Gleeson CJ and Gummow J) (2) Recognised Legal Rights Test (Gaudron J) (3) Three Stage Caparo v Dickman test (Kirby J) (4) Incremental Approach (McHugh and Hayne JJ) (5) Factors in Combination and Incremental approach (Callinan J) Protected Interests and Salient Features Test Protected interests are those kinds of detriment the law is willing to protect. E.g: Exportation sales Loss of land value Loss of tenants Salient features => Must identify the salient features which combine to give rise to a sufficiently close relationship to attract a duty. E.g: The defendant’s control over the nature and location of the experiment P’s inability to take steps to protect themselves against the risk exposed. The leg’n imposing a 20 km quarantine zone made loss certain upon disease. Having applied the test to the fact situation, Gleeson CJ and Gummow J found that there was a sufficiently close and direct relationship between Perre and Apand to attract a duty of care. Recognised Legal Rights Test It was noted that the law recognises pure economic loss in some areas already. This states that a duty of care is established where a person knows or ought to know where their acts or or omissions may impair the P’s rights, and P is not in a position to protect their own interests. It was held that in such situations, the law ought to impose a DoC to take reasonable care not to act in such a way as to impair reasonably foreseeable rights. Three Stage Caparo v Dickman Test In order to determine whether a DoC exists, three questions need to be answered: (1) Was it reasonably foreseeable that conduct or omissions are likely to cause harm to a category of persons whom P belonged to? (2) Does a relationship of proximity or neighbourhood exist between the plaintiff and the defendant? (3) Is it fair, just and reasonable that the law imposes a DoC for the plaintiff’s benefit? Rescuers Chapman v Hearse (1961) 106 CLR 112 The question in this case was whether Chapman had been contributorily negligent in relation to Dr Cherry’s death, who was struck by Hearse when he was rescuing Chapman, who was lying on the road as a result of a car accident caused by his negligence. The Court held that the threshold for establishing a duty of care is low when dealing with a rescuer, and thus, Chapman was contributorily negligent. Other Categories Home Office v Dorset Yacht Co. Ltd [1970] AC 1004 Juvenile offenders housed in a Boy’s Home were taken on an excursion to an island. Due to the warden’s negligence, some of the boys escaped using a yacht owned by the Dorset Yacht Co. They sued the Home Office. The Court found that the Home Office owed a duty of care to those in the vicinity. However, this was held to be confined by the circumstances and proximity of the said property. Weeler & Co v Foot and Mouth Research Institute [1965] 3 WLR 1082 GET FACTS!!!!!!!!!!!! Alcock v Chief Constable of Police[1992] 1 AC 310 There was a disaster at a football stadium when a stand collapsed due to the negligence of the defendants who allowed it to become overcrowded. 95 people were crushed to death. The game had been televised live at the time. Thus, not only were people at the stadium witness to this terrible tragedy, but people at home witnessed it on their television screens. This was a class action for nervous shock. The HofL held that there needed to be a sufficient relationship of proximity required to give rise to a duty of care. This involved “close ties of love and affection” as well as some sort of physical proximity in time and space. Wartime Shaw Savill v The Commonwealth (1940) 66 CLR 344 This was an action by Shaw Savill against the Commonwealth for damages for the damage caused to the motor vessel Coptic in a collision between the HMAS Adelaide and the Coptic. It was held that where an action of negligence is brought against the Commonwealth for acts done in the course of active naval or military operations against the enemy must fail. Legal Profession Rondell v Warsley [1969] 1 AC 191 and Gianarelli v Wraith(1988) 62 ALJR 611 both held that barristers are immune from negligence actions for in-court work and this also extends to some out of court work. This is because it is preferable not to interfere with the judicial process. This immunity extends to solicitors acting as advocates. Hall v Simons [2000] 3 All ER 673 In three separate cases, clients brought claims their former solicitors, which was defended on the basis that they were immune from an action in negligence. The HofL considered whether the immunity should be abolished, or whether it was still justified on policy grounds, especially the public interest in preventing collateral attacks on court decisions, and in ensuring that advocates respected their overriding duty to the Court. It was held that immunity should be abolished, on the basis that immunity is not required to deal with collateral attacks on civil and criminal decisions, and that the public interest is satisfactorily safeguarded by independent principles and powers of the Court. Further, it was held that the immunity was not required to ensure that barristers respected their duty to the Court. This was based on the fact that doctors, who had both a duty to the patients and a duty to adhere to an ethical code, are not immune from negligence actions. Further, experience in other jurisdictions such as Canada demonstrate that such a view is rather pessimistic, and moreover, there are many benefits with abolishing immunity. These include the end of an anomalous exception to providing remedy for a wrong committed, and there was no fear of a flood of actions. A barrister by performing his duty to the court to the detriment of his client could never be called negligent, and there is no possibility of a finding of negligence where a barrister his conduct was bona fide dictated by his perception of his duty to the Court. Hill v Van Erp (1997) 71 ALJR 487 The HC has allowed negligence actions against solicitors in certain, restricted circumstances. The Case of the Unforeseeable Plaintiffs Bourhill v Young [1943] AC 92 In this case, the plaintiff was unable to recover, as it was held that it was unforeseeable that an unseen bystander would suffer from nervous shock as a result of an accident, and thus, no duty of care existed. Levi v Colgate-Palmolive Ltd (1941) 41 SR (NSW) 48 The plaintiff had received a free sample box of products from the defendants. This included a sachet of bath salts, which the plaintiff used, resulting in a rash, which lasted for a long time. In determining whether a duty of care existed to specially sensitive plaintiffs two questions must be asked: (i) if the D owes a DoC and breaches it, and an abnormal plaintiff by reason of the abnormality suffers an injury, can they recover on this basis? (ii) Does the fact that the plaintiff have an abnormality create a special duty of care? The Court held that the answer to the first question was in the affirmative, and the second question was negative. Further, it was held that if the defendant knows of the pliantiff’s abnormality, then a special duty of care is found. However, no such duty exists in the normal course of events. Haley v London Electricity Board [1965] AC 778 The plaintiff was a blind man who fell into a ditch dug by the LEB, as the safety fence they had erected was too low for him to detect it with his cane. The LEB argued that he was an unforeseeable plaintiff. However, the HofL held that it was reasonably foreseeable that a blind person would walk along the pavement, and could be injured as a result of inadequate safety measures. Mt Isa Mines v Pusey (1971) 125 CLR 383 The plaintiff was an engineer and witnessed two electricians who worked for the company being electrocuted. The plaintiff went to rescue them and saw the resulting horrible burns. He developed a psychiatric disorder which was latent when he saw this. The HC found that he was reasonably foreseeable, despite a pre-existing susceptibility, and he was awarded damages. Qualifications to the Duty of Care Novus Actus Interveniens Chapman v Hearse (1961) 106 CLR 112 Chapman argued that Hearse’s actions in hitting Dr Cherry constituted a novus actus interveniens, and thus, he no longer owed a duty of care, as the causal connection was broken. However, the Court held that it was exactly this sort of action which was reasonably foreseeable, and thus, there was no novus actus interveniens and Chapman still owed a duty of care. The Opportunity for Intermediate Examination Farr v Butters [1932] 2 KB 606 Crane manufacturers sold a crane, unassembled to builders where a crane erector would assemble it for the builders. The erector when he was erecting the crane found that parts of it were ill-fitting, and accordingly marked the areas with chalk. However, before the defects were remedied, the erector began working on it, it fell on and killed him. It was held that as the defects were discoverable on reasonable inspection, and having in fact been discovered by the deceased, the manufacturers did not owe a duty of care. Grant v Australian Knitting Mills [1936] AC 85 The Court held that there was no opportunity for intermediate examination in this fact situation, as the excess of sulphates in the underwear were a latent defect, and it was not reasonable to expect Dr Grant to have discovered this upon examination. Kinds of Loss Physical Damage to Person or Property Calculus of Negligence Likelihood Bolton v Stone [1951] 1 All ER 1078 the plaintiff was hit by a cricket ball from the cricket ground across the road from her house. It was 90 metres from the batsman to her house. The P’s neighbour testified that balls had entered her backyard five to six times in over thirty years. Balls were rarely hit out of the ground. Lord Reid held that “the test to be applied here, is whether the risk of damage to a person…was so small that a reasonable man…from the point of view of safety would have thought it right to refrain from taking steps to prevent the damage. It was found that the likelihood in this case was negligible, and the appeal failed. Wagon Mound No 2 [1966] 2 All ER 709 The owners of two ships sued a charterer alleging that the loss of their ships to fire was caused by the Defendant’s negligence in discharging large quantitities of furnace oil into the harbour. The Privy council found that it was reasonably foreseeable that the oil spilt on the water may catch fire. It was argued that the officers of the Wagon Mound would regard furnace oil as being very difficult to ignite on water, and that they would have regarded it as a “possibility but one which would become an actuality only in very exceptional circumstances“. The Privy Council held that Bolton v Stone did not preclude negligence for all small risks. Lord Reid held that: “A reasonable man would only neglect such a risk if he had some valid reason for doing so: eg, that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity there can be little doubt but that Bolton v Stone would have been decided differently. In their lordships’ judgment Bolton v Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.” Seriousness Paris v Stepney Borough Council [1951] AC 367 The plaintiff lost his second eye as a piece of metal entered his eye due to the defendant (his employer’s) negligence in failing to provide safety goggles. It was held that “in considering…the precautions which an employer ought to take for the protection of his workmen, it must…be right to take into account…the likelihood of an accident happening, and the gravity of the consequences.” It was further held that there it is a duty of employers to take additional precautions where they know of the gravity of the consequences to specific employees; where they have knowledge of special circumstances which affect the gravity. It was held that by Lord McDermott that “what may happen to the person is as important as the actions.” Thus, the risk and degree of injury are relevant factors in determining whether a breach has occurred. Utility of Conduct Watt v Hertfordshire County Council [1954] 1 WLR 835 The Defendant was the employer of a fireman who received an emergency call about a woman trapped under a heavy vehicle very close to the fire station. As the special vehicle used to carry a heavy jack used for such purposes was out, the fireman loaded it onto a normal fire truck. He had to in the course of getting to the scene, apply his brakes suddenly. The jack hit the plaintiff, and the plaintiff sued the employer for negligence. The employer was found to be negligent at first instance. The Court of Appeal found that they were not negligent and it was held that the utility of the conduct must be considered, and balanced against the risk taken. It was held that “in measuring due care, you must balance such a risk against the measures necessary to eliminate the risk…you must balance the risk against the end to be achieved…the waving of life or limb justifies taking a considerable risk.” Daborn v Bath Tramways [1946] 2 All ER 333 The defendant was driving a left-hand drive ambulance, and had a sign which stated that it was a left-hand drive ambulance. It collided with a bus when turning right. It was held that the utility of using the vehicle outweighed the risk. Practical Alternatives In looking at whether an alternative is practical, factors such as expense, convenience etc. of implementation needs to be taken into account. Caledonia Colliers v Speirs (1957) 97 CLR 202 The plaintiff’s husband was killed at a level crossing when hit by a train carrying trucks which lost control and ran down a steep embankment. No measures such as points on the line, which would stop derailed trains were taken. The escape of the trucks was reasonably likely to occur and it was reasonably foreseeable that the P would be injured. It was held that a finding of negligence was open to the jury. The D argued that installing the points in the line was not a practical alternative as there would be inconvenience in slowing trains down, and a risk of derailment. The HC held that the danger was such that it required drastic measures, and further that the D’s argument gave undue weight to derailment. Vozza v Tooth (1964) 112 CLR 316 The plaintiff an employee of the defendant was injured when a bottle burst when it was removed from the pasteuriser. He was provided with leather gloves to safeguard from injury. However, these were too thin to prevent injury. The jury found that the employer had been negligent. The HC reversed this decision on appeal as it was held that the P had not adduced sufficient evidence that it would have been reasonable to install machine handling or practical to provide thicker gloves. In fact, it was found that thicker gloves would have meant that the P could not handle the bottles. It is up to P to show that alternatives are practical. Nelson v John Lysaght (1975) 50 ALJR 104 The P slipped and injured themselves whilst carrying a heavy coil of wire. It was held that the provision of non-slip shoes were insufficient safety measures. Measures put in place to improve safety after the accident were accepted as evidence of reasonably practical measures that could have been put in place to avert the accident. Mercer v Comm for Road Transport (1936) 56 CLR 580 the P was injured when the D’s tram crashed, as the driver had collapsed. The conductors had made every effort to stop the tram. The P argued that an automatic stopping system was a reasonably practical alternative which could have been implemented. These had been installed in all electric trains in Sydney, but not the trams. However, the defendant argued that such a system was not in place in any other tramway. However, the HC held that a finding of negligence was open to the jury, as general trade practice may fall short of the required standard of care. Time to Assess Risk Roe v Minister for Health [1954] 2 QB 66 Two plaintiffs who went to hospital for a minor operation were given a spinal anaesthetic which had been stored in a container of phenoyl. They were paralysed waist down due tot eh presence of phenoyl in the anaesthetic which had seeped through invisible cracks in the glass container in which the anaesthetic was stored. It was held that the D hadn’t been negligent by the standard of medical knowledge in 1940. The Court noted that the plaintiff’s situation was terrible, it wasn’t possible to compensate under tort, and to do so would go against community standards. Who is the Reasonable Person Glasgow v Muir [1943] AC 448 Lord MacMillan held that legal liability is limited to actions which a reasonable person of ordinary intelligence would contemplate. In dealing with the reasonable person, the idiosyncracies of the defendant are excluded, and the reasonable person is free from over- apprehension and over-confidence Paptonakis v Aust Telecommunications Commission (1985) 156 CLR 7 Described the reasonable person as the “hypothetical reasonable person on a hypothetical Bondi tram.” (Deane J) Age McHale v Watson (1966) 115 CLR 199 It was held in this case that a child is judged upon the standards of a reasonable person of the same age and experience as the plaintiff Physical and Intellectual Disability McHale v Watson (1966) 115 CLR 199 The Defendant was a boy of 12 who threw a metal spike towards a wooden post, which hit a girl of 9. The plaintiff argued that the test should be one which determined The event or matter speaks for itself. Mummery v Irvings P/L (1956) 96 CLR 99 The P entered the D’s shed to buy timber, and saw the D’s foreman working on a circular saw, and moved towards him, when he was hit by a flying piece of wood. The trial judge had not left the question of negligence to the jury. It was held that this could be open to the jury dependant upon whether the jury could draw inferences towards negligence as a result of res ipsa loquitor. It was held that res ipsa loquitor is not a legal principle, but a “general index to those cases in which mere proof of an occurrence…constitutes prima facie evidence of negligence.” Evidence was adduced to partially explain the cause of the wood hitting the plaintiff as the evidence tended to establish that the wood was thrown by the circular saw. The question wasn’t how the wood flew across the area, but how it flew from the circular saw. However, the Court couldn’t find for the P as there was no evidence of the circular saw etc, and further the P couldn’t rely on res ipsa loquitor, as some evidence was adduced. Scott v London & St Katherine Docks Co [1865] All ER 158-9 It was held that “where the thing…is under the management of D…and the accident is such that in the ordinary course of things does not happen if those who have the management use proper care, it affords evidence, in the absence of explanation by the D, that the accident arose from a want of care.” In this case, a bag of sugar fell on the P’s head, and injured him. The D called no evidence and the Court found that if P could illustrate that the circumstances were under D’s control, and that the accident would not have accrued except for the D’s negligence, then the Court is able to find negligence. However, they don’t have to. This doctrine does not shift the onus of proof from the P to the D. It remains with P. However, the D bears the evidentiary onus to adduce evidence if no other explanation of the injury or accident is produced. Where there is no explanation, the jury may make a finding for the P. The Effect of the Doctrine The effect of the doctrine, as held in Mummery v Irvings is that a finding of negligence MAY result. This isn’t a legal principle that is to be strictly adhered to. Causation Causation in fact requires that once the plaintiff has demonstrated that the defendant was negligent, they must further demonstrate that the negligence caused the P’s injury. Causation in law looks at the remoteness of damage. The ‘But For’ Test This involves determining whether the injuries would have been suffered but for the defendant’s negligence. Barnett v Chelsea & Kensington Hospital Management Committee (1969) 1 QB 428 The P’s husband fell ill after drinking some tea, and went to casualty to find that there was only a nurse, as the doctor had gone home. The nurse called the doctor, who told him to go home & see his doctor. The husband died five hours later from arsenic poisoning as there had been arsenic in the tea. The P sued the hospital and the doctor, claiming that their negligence caused her husband’s death. The Court held that the doctor was negligent in not coming into the hospital, but, the doctor’s negligene hadn’t caused the P’s husband’s death, and thus, he was not liable. Evidence was adduced that even if he had attended, he would only have been able to give an intravenous drip four hours later. Expert evidence suggested that his chances weren’t good. The Plaintiff had failed to establish that her husband’s death resulted from D’s negligence, on the BofP. If the P would have been injured even if the D hadn’t been negligent, then D’s negligent did not cause the death in legal terms. March v Stramare (1991) 171 CLR 448 The defendant had parked his truck in the middle of the road, with his hazard and rear lights on. The plaintiff, as he was drunk, drove into the back of the truck. He sued for negligence. It was found that the defendant was not liable on appeal to the Full Court. On appeal to the HC, the trial judge’s decision was restored. The HC commented on the limitations of the ‘but for’ test where there are multiple causes. They held that: (i) the ‘but for’ test has limited used (ii) it cannot be an exclusive criterion for causation. (iii) It must be tempered by value judgements and policy considerations. (iv) Common sense must be looked at too. SRA of NSW v Wiegold (1991) 25 NSWLR 500 The plaintiff was employed by the D and was injured when he fell down a railway embankment at night. He was no longer able to work after the accident, and was provided with worker’s comp. He grew Indian hemp to provide sufficient money by selling marijuana. He was arrested, convicted and imprisoned. He sued the defendant. The question was whether he would have been imprisoned but for the D’s negligent. The trial judge held that the defendant was negligent. They held that the ‘but for’ test was singularly inappropriate. Chappel v Hart (1998) 156 ALR 517 The plaintiff’s oesophagus was injured during surgery without negligence. This damaged her vocal cords and she partially lost her voice. She sued the doctor for negligence in not letting her know of the risk. She argued that had she known, she would have put off the surgery, and hired the best surgeon possible. The Court discussed the ‘but for’ test with regard to determining whether the plaintiff would have not had the surgery. In some circumstances the ‘but for’ test doesn’t work. For example, if it had been that the anaesthetic had gone wrong, where even if she knew of the risks of the perforation, and had put the operation back, she would still be injured. However, as the damage was due to the perforation, she was successful. Increased Risk M’Ghee v National Coal Board (1972) 3 All ER 1008 The plaintiff was employed to clean up brick film. He sued the National Coal Board for their negligence in failing to provide showers to wash the dust off, which caused severe dermatitis. The evidence could not demonstrate that it was more probable than not that the failure to provide showers caused the dermatitis. However, it showed an increased risk. The HofL found the employers liable. Wilberforce LJ held that whilst logically if there was only an increased risk, then this is not the cause of the injury. However, it was held that on policy grounds, that an increased risk satisfies the requirement of causation. It was held that where a breach of a duty creates a risk, and there is a disease, then the party creating the risk should be held liable. Wilsher v Essex Area Health Authority (1988) AG 1974 M’Ghee was severely criticised in Wilsher v Essex as the law requires proof of fault. Demonstrating an increased risk doesn’t satisfy the evidentiary burden to show that the D’s actions cause the P’s injury. They suggested in M’Ghee had succeeded as both risk factors were provided by the D. In the current fact situation, there was an innocent contributing factor, and the defendant’s contributing factor, and the P failed, as they could only demonstrate increased risk, not that the D had caused the injury. M’Ghee discussed a “material increase of risk.” This was criticised in Wilsher v Essex as “the law requires proof of fault causing damage.” Bennett v Minister for Community Welfare (1992) 176 CLR 408 The plaintiff was a ward of the state who was injured when trained in a detention center run by the D. The D acknowledged that P, as a ward of the state was entitled to independent legal rights and advice. They had been negligent in providing this to him. In 1976, when he was no longer a ward of the state, the P got his own independent advice, and was advised that he could not recover for his injury (negligently). 1979, after getting further advice, he sued the defendant for the loss of a right to sue, as his original action had become statute barred. The Minister admitted the negligence, but argued that the negligence was a novus actus interveniens, and so, there was no causal connection between the negligence and the damage. However, the HC rejected this argument, holding that had the D fulfilled their duty, the P wouldn’t have had to obtain advice at a later date, and thus, the negligence of the advice at the later date had no effect. Gaudron, on her own found for the P on the basis of a M’Ghee style reasoning. She suggested that in the absence of evidence that the D’s breach had no effect, the breach had no effect, the breach would be taken to have caused or materially contributed to the injury or damage. Multiple Sufficient Causes Alternative Causes Universe Tankship (UK) v Miller Steamship Co Pty Ltd (The Wagonmound (No 2)) [1967] 1 AC 617 per Lord Reid “reasonably foreseeable” means “A real risk…would occur to the mind of the reasonable man…which he would not brush aside as far-fetched or fanciful.” The actions were brought by the owners of two ships sued a charterer alleging that the loss of their ships to fire was caused by the Defendant’s negligence in discharging large quantitities of furnace oil into the harbour. The Privy council found that it was reasonably foreseeable that the oil spilt on the water may catch fire. It was argued that the officers of the Wagon Mound would regard furnace oil as being very difficult to ignite on water, and that they would have regarded it as a “possibility but one which would become an actuality only in very exceptional circumstances“. It was held that the D is liable for damage caused not only by the D, but that which fell within by the class or category of damage which is reasonably foreseeable. If the officers had seen the damage as a possibility, which could only become an actuality in exceptional circumstances. The defendant’s in Wagon Mound 2 were held liable. Hughes v Lord Advocate (1963) AC 837 It was held that it does not matter if the exact circumstances are not foreseen, as long as harm of the kind could be foreseen. That is, it is not required that the exact manner be foreseen, as long as the harm could be foreseen. Workers working on a dark street went on a break, leaving an open manhole. They had surrounded it by a canvas tent, and a ladder to get in. There were red paraffin lamps around it. Two young boys went in, and one of the lamps were knocked over, and there was an explosion. The younger boy fell into the manhole as a result, and suffered severe burns. The HofL held that the D owed a duty and breached it, and although the injuries of a different degree weren’t foreseeable, however, something of the kind was foreseeable. Whilst the manner was unforeseeable, the harm could have been foreseeable. Mt Isa Mines v Pusey (1970) 125 CLR 383 The HC held that a mental disorder of some kind was reasonably foreseeable as a result of their negligence. The degree of that disorder need not be foreseen. The HC held that what is required is: - not foresight of the particular course of events - only some harm of a like kind. - The “comfortable latitudinarian” doctrine - this is a broad test. Egg Shell Skull Cases Enunciates the concept of take the plaintiff as you find them. The extent of harm need not be foreseeable as long as the KIND of harm is foreseeable. Dulieu v White (1901) 2 KB 405 The plaintiff may suffer from some pre-existing weakness or the defendant’s negligent act may cause injury resulting in some susceptibility to further illness or injury Smith v Leech Brian & Co (1964) 1 QB 518 The plaintiff was a worker and he got burnt and this enhanced cancer. As it was reasonably foreseeable that there would be a burn, responsibility extends to the fatal cancer which developed from an unusual pre-malignant condition of the victim. Robertson v Post Office (1974) 2 All ER 737 The plaintiff suffered brain damage after getting a tenus shot for graze and it was reasonably foreseeable that the medical treatment would go wrong and therefore the D is liable for damage. Defences The most common defence argued is that the defendant did not breach the duty. Whether the duty has been breached is decided by a tribunal of fact. Sometimes, it is argued that no duty was owed. Contributory Negligence The historical position at common law was that it was a complete defence. Butterfield v Forrester (1809) 103 ER 926 It was held that if the D could establish that the P was guilty of a failure to take care of his or her safety, then, the D is not held to be liable. Davies v Mann 152 ER 588 The situation espoused in Butterfield was modified by the “last opportunity rule.” This stated that whoever had the last opportunity to avoid the accident would be liable. This rule was further modified in Alford v Magee (1952) 85 CLR 437 The HC fiddled with the cases and the applicable cases, and stated that where the D had a real opportunity to avoid the accident, they should be liable. If the D’s actions were later in time, the D would be liable. Where D had an advantage, the D is liable. All these rules looked at laying the blame on either party’s shoulders, there was no notion of apportionment. Thus, s 10 of the Law Reform (Miscellaneous Provisions) Act 1965 was enacted, which means that contributory negligence is no longer strictly a defence, but a plea for the reduction of damages. The act is a cornucopia of tort reforms in NSW. s 10 states: “where a person suffers damage…partly of his own fault, and partly the fault of any other person…a claim…shall not be defeated, but the damages recoverable…shall be reduced to such extent as the court thinks just & equitable, having regard to the claimants share in the responsibility of damage. Apportionment of responsibility is a question of fact. “damage” is defined to include any loss of life and personal injury. “Fault” is defined as “negligence or other act or omission which gives rise to a liability in tort.” The apportionment of liability is measured in terms of percentage. Pennington v Norris (1956) 96 CLR 10 The P was run over by the D on a dark, wet night. He had had a few drinks too. The Tasmanian Supreme Court held that the P’s damages would be reduced by 50% due to contributory negligence. On appeal to the HC, it was held that the damages would only be reduced by 20%. The HC held that it must be a “just and equitable” apportionment of responsibility between P&D. Generally, in NSW, a 30% reduction is large, 25% still quite large, and a 15-20% reduction more likely. Culpability means the “degree of departure from the standard of care of the reasonable man.” The act gives wide discretion to the tribunal of fact. Froom v Butcher (1975) 3 All ER 520 It was held that negligence depends on the breach of a duty of care, but contributory negligence doesn’t. The P is guilty of contributory negligence if he ought reasonably have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself. It was a reduction in damages for the failure of the P to wear a seatbelt. Lord Denning stated that where the failure to take care for one’s own safety made all the difference, he would apportion a 25% reduction, where there is a significant contribution, he’d apportion 15%. (In Froom v Butcher, however, this is in no way binding, just interesting). Davies v Swan Motor Co (1949) 2 KB 291 For contributory negligence, there is no requirement that P owe a DoC to anyone, just that they failed to take reasonable care for their own safety. There is further a question as to whether there is a causal link between the P’s loss and their negligence. It must be foreseeable. with it. The D argued volenti. However, the Court held that the P had assumed the risks involved in the “Russian Roulette” manoeuvre, but not that of the negligent driving of the speed boat driver. The P’s action was successful. It was held that the P may accept inherent risks involved with the sport, but not non-inherent risks, or the risk of negligence outside the sport. Kent v Scattini (Full Ct of WASC) The P was a sixteen y.o. who was sitting on the steps of the P.O. when they were sprayed by other kids with water. The P & her friends armed with similar equipment took after the other car, and were travelling at 80km/hr, when the car failed to take a bend, and the P was injured. She sued the driver of the car. The D argued volenti. The Court held that she had only assumed risk in regard to the spraying of water, and not in regard to the D’s negligent driving, and thus, the P was successful. It was held that P is only barred from recovery for losses which are caused by the result of a known and accepted risk. Illegality This is referred to as a defence, but is usually used to deny that a duty of care existed. Henwood v Municipal Tramsways Trust (Sth Aust) (1938) 60 CLR 438 The P was the mother of the deceased who was killed when leaning out the window to vomit. The tram carriages were too wide, and went very close to the staunchons. The deceased was killed when he hit his head on one, whilst vomiting. The D was aware of previous serious accidents, and hadn’t warned people, except to put up a sign to say that leaning out of tram windows is prohibited. The P sued the trust. The trust argued that the son had committed an illegal act, and thus, they weren’t liable. On appeal to the HC, McTiernan and Dixon JJ held that one must look at the purpose of the law which the P has contravened. If it is to disentitlte P, then, the D is absolved of liability. If not, the D is still liable. Jackson v Harrison Jacobs J held that “a legal duty… presupposes that a tribunal of fact can properly establish a standard of care…if the courts decline to permit the establishment of an appropriate standard of care then it cannot be said that there is a duty of care.” Gala v Preston (1991) 172 CLR 243 Four youths stole a car, and went for a joyride, when they met with an accident. The P (one of the youths) sued the D (the driver of the car) in negligence. The question was whether the illegal act deprived him of his ability to sue. Mason CJ, Deane, Gaudron and McHugh JJ held that whilst illegality doesn’t automatically deprive the P of a right to sue, where they are in a joint illegal enterprise, it is not feasible to determine the appropriate standard of care, and thus, no duty arises. Negligence - Particular Duty Areas Product Liability Donoghue v Stevenson [1932] AC 262 imposed a duty of care that “a manufacturer of products…owes a duty to the consumer to take reasonable care.” Junior Books v Veitchi held that “manufacturer” is to be broadly understood. Haseldine v Daw holds repairers liable. O’Dwyer v Leo Buring [1966] WAR 67 imposes liability for the negligent design of a product. Adelaide Chemical & Fertiliser Co v Carlyle (1940) 64 CLR 514 imposes liability for the negligent marketing of a product. Norton Aust Pty Ltd v Streets Icecream Pty Ltd (1969) 120 CLR 635 imposed liability for the failure to warn of dangers of proper use. Grant v Australian Knitting Mills [1936] AC 85 The defendants tried to distinguish this case from D v S as the underwear was easy to inspect. However, as the excess of sulphates in the underwear was latent, no reasonable inspection would have made it discoverable. Running alongside common law liability are statutory provisions which impose liability. SOGA 1923 whilst it only applies to contracts for the sale of goods implies warranties into contracts that the goods must: Have fitness of purpose, Be of merchantable quality and Cannot be excluded. However, it is of limited use as the doctrine of privity of contract means that the ability to bring an action is restricted. Part V Div 2A of the TPA and more accurately, s 74B of the TPA gives consumers or persons acquiring title through or under a consumer can bring an action against a manufacturer in respect of goods unsuitable for the purpose. s 74C allows for an action in respect of false description of goods, s 74D for goods of unmerchantable quality, s74E for goods not corresponding with a sample, and s 74K prohibits the exclusion or modification of this division. Under s 74 A (3) and (4) manufacturer is defined broadly, and includes a corporation which: allows its name or brand on goods, holds itself out as a manufacturer and is an importer, and the manufacturer has no Australian place of business. A consumer is defined as a person acquires goods where: the price does not exceed the prescribed amount. (was $40 000) or, where the price was greater, but the goods were of a kind ordinarily acquired for personal, domestic or household use. Due to constitutional limitations, the TPA only applies to corporations. However, the FTA applies where the manufacturer isn’t a corporation Part VA of the TPA, enacted in 1992 imposes liability upon manufacturers and importers of defective goods and applies to goods :if their safety is not such as persons generally are entitled to expect.” (s 75A) A corporation supplying such goods is liable for damages to a person, where the person is injured or killed. (s 75AD). The remedy for other persons who suffer consequential losses is found under s 75 AE. The remedy for damage to personal, domestic or household goods is found under s 75 AF. Remedy where land or buildings are damaged is found under s 75 AG. s75AK provides the defences, s 75 AN deals with contributory negligence, and s 75AQ stipulates a three year time limit. Under the TPA, a P doesn’t have to prove the existence of either a DoC or negligence. So, where possible, a P would be best advised to plead two causes of action, one in tort, and one under the TPA. However, it is important to keep in mind the effect of Wakim on cross-vesting legislation. Phillip Morris Inc v Adam Brown Male Fashion Pty Ltd (1981) 148 CLR 457 accrued jurisdiction means that a court, any court, apart from those which have their jurisdiction specifically specified is allowed to hear and determine other matters to properly hear the matter before them. Abnormal Plaintiffs Levi v Colgate-Palmolive (1941) 41 SR (NSW) 48 Mrs Levi sued Colgate as she contracted a very severe dermatological condition due to using free samples provided by the defendant. The HC held that as her reaction was very, very rare, she was so unusual that she was an unforeseeable plaintiff. As the bath salts were harmless to everyone else, she was unforeseeable, and owed no duty of care. She didn’t succeed on the basis of the egg-shell skull cases, as there the Ps were injured just like everybody else, just to a much greater degree. It was held that “the bath salts supplied to P were innocuous to normal persons…the skin irritation which she suffered…was attributable exclusively to hypersensitiveness.” Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 held that a general duty of care needs to be established if the breach arose out of the activities, or positive actions of the occupier. The law allowed for recovery in different circumstances depending upon the class of the P. These were: where there were dangers which the D knew or should have known of in relation to invitees.; Where the D knew of dangers to licensees.; Where acts were done deliberately to cause harm to trespassers. The Current Position in Australia The classical formulation has now been virtually rejected. The modern formulation is that a general duty of care is owed to a person entering land, regardless of the distinction between invitee, licensee and trespasser where there are circumstances where a general duty will lie. Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 The P went shopping at a Safeway store in an affluent Melbourne suburb on a wet Saturday morning. She slipped and was injured in the foyer, and sued in negligence. It was held by Mason, Wilson, Deane and Dawson JJ that “all that is necessary is to determine whether in all the circumstances, including the fact of the D’s occupation of premises, and the manner of the P’s entry upon them, the D owed a duty of care under the ordinary principles of negligence.” Thus, they spelt an end to the “so-called special duties resting on an occupier of land with respect to persons entering as [invitees], licensees or trespassers.” It was held that the manner of entry is not a decisive factor, and that there are no hard & fast rules regarding it. The question of the manner of entry is more applicable in the question of the standard of care. Papatonakis v Australian Telecommunications Commission (1985) 57 ALR 1 The question of whether an occupier’s duty extends to include a duty in relation to independent contractors was left open. That is, there a duty to “see that reasonable care is taken.” Modbury Triangle Shopping Centre Pty Ltd v Anzil (23.9.2000) HCA This was a question which turned upon breach. The P worked in a video shop in the shopping center. There was a large car park in front of the Shopping Centre, which had previously been lit up until late at night. However, Modbury took the view of turning off the carpark lights when most of the shops closed. So, the carpark was dark when the video shop closed. The P was mugged in the car park as a result. The Court held that the D hadn’t been negligent, as the calculus of negligence had fallen their way. Liability of Statutory Authorities Local councils are statutory authorities. Under their enabling acts, they have the power, and not a duty to act. Thus, the Courts heave held that where a statute has given them a POWER to act, why should the common law impose a duty to act? Questions arise as to the distinction between misfeasance and non-feasance. Will a statutory authority be held liable for misfeasance? Further, what if the actions are ultra vires? Anns v Merton London Borough Council (1978) AC 728 This case was not followed in either the HofL or in Australian courts, but, it is important, due to the concepts it enunciated. The P bought a house within the D’s council area. It had been built without their knowledge on faulty foundations. The P sued the council as it has the power to approve building plans and the power to inspect the construction. The Court held that the council was liable as it was reasonably foreseeable that if the council hadn’t inspected the construction, someone would suffer. The Court held the following in relation to the liability of statutory authorities: Intra vires & a policy decision - the courts will not interfere. Ultra vires & a policy decision - the courts will assess whether (in)action was negligent Not a policy decision, but an operational one - the courts will assess whether (in)action was negligent. Sutherland Shire Council v Heyman (1985) 157 CLR 424 The fact situation was almost identical to those in Anns. The HC in this case declined to follow Anns on the question of where a DoC arises - that is they declined to use the distinction between policy and operational decisions - and instead used reliance as the test. The majority Mason CJ, Brennan and Deane (in separate judgements) held that: In general, there is no duty to exercise statutory powers. The duty arises where the authority, by its conduct places itself in a position where other people rely on it to take care for their safety. The Duty arises where the D ought to foresee that: (i) the P reasonably relies on the D to perform the function (ii) The P will suffer damage if the D fails. The Court held that the D was not liable, as the P hadn’t relied on the Council’s inspections. They could have, but they didn’t. Further, the Council did nothing to induce the P to rely on it. The HC found unanimously for the D. Two minority judges found that there was a duty, but no breach. Mason CJ held that policy or operational distinctions are not relevant in determining whether a duty exists. It is relevant on the question of breach. He further introduced the concept of general reliance. Parramatta City Council v Lutz (1988) 12 NSWLR 293 Lutz was the owner of a property next to a derelict house. The Council had the power to demolish any derelict buildings, even where the owner doesn’t. Lutz had repeatedly asked for the building demolished. The Council had failed to do so, and a fire started in that property, spreading to her property, destroying her house. It was held that as Lutz had specifically relied on the council to demolish the building, and as the council had induced her to do so, there was a DoC. Both Kirby P and McHugh JA held that the council was liable to P as the P had “generally relied” on it to exercise its statutory powers. McHugh JA went on to state that “I think…that this Court should adopt as a general rule of the common law, the concept of general reliance.” Pyrenees Shire Council v Day (1998) ALJR 1 There were three Ps - the owner of a fish and chip shop, the tenant, and the owner of the property next door. The Council inspected a flat behind the shop, and found the fireplace to be very dangerous. The inspector warned the then tenant not to light a fire. The inspector issued a notice to the owner regarding fixing the fireplace. The owner sells the flat, and a new owner, and a new tenant arrives. The tenant lights a fire, and the place burns down. The plaintiff’s sued the council, as the inspector had come, and knew of the danger, and it didn’t do anything. The HC held that the owner couldn’t succeed as they hadn’t specifically relied on the council. The tenants and the adjoining owner were successful, as they had relied on the council. The majority (Brennan CJ, Gummow and Kriby JJ) :rejected the concept of general reliance (too vague, uncertain, and relies on a “general expectations of community.”), only McHugh, Toohey JJ approved the concept of general reliance; Brennan CJ held that there was no specific reliance by the P (owner) here. It was held that a duty arises where the “autority is empowered to control circumstances give rise to a risk and where a decision not to exercise power to avoid a risk would be irrational in that it would be against the purpose of the statute.” Gummow J held that the council had esclusive control and knowledge of this situation, and should so be reliable.; The control mechanisms are misfeasance/nonfeasance à here the council by its actions, placed itself in such a position which imported a DoC. The policy/operational distinction is not a clear cut basis for determining liability, but there will be no liability for the quasi-legislative of statutory bodies (e.g. zoning prescriptions) or core areas of policy making.; Kirby J held that proximity is not a universal identifier of a DoC. BUT, more than reasonable foreseeability is required. You look at a spectrum of proximity factors, which involves determining whether: - the gravity of the risk is high - the claimants were not strangers to the Council, but ratepayers. - The council had statutory power expressly to prevent fires - The council had exclusive knowledge of dangers - These are sufficient to impose a DoC. He further held that the following should be taken into account: - Policy considerations - The test in Caparo v Dickman for a DoC. Crimmins v Stevedoring Industry Finance Committee (1999) 167 ALR 1 Stevedoring is a statutory body. A waterside worker died as a result of contracting mesothelioma as a result of inhaling asbestos fibres. The deceased’s wife sued the statutory body for negligence, arguing that the Authority failed to warn of the dangers of asbestos, failed to instruct as to those dangers, failed to provide respiratory equipment, It was foreseeable that injury would occur if the Council didn’t exercise its powers, but foreseeability alone is not sufficient for a DoC. Proximity is not a necessary element of a duty in all cases (Hill v Van Erp) however, it is a useful concept. In Pyrenees, Lutz and Crimmins the relationship between the P and the public authority was much closer than in this case. There are several considerations, on policy grounds which render it unfair, unjust and unreasonable to impose a duty: - indeterminate class of Ps - duty to “minimize” contamination too vague and uncertain a concept. - Indeterminate nature of the burden on the council because of the non-specificity of the sources of contamination. - Question of cost and ordering priorities. Kiefel J’s reasoning on the issue of a DoC was similar. Lee J dissenting, would have imposed a duty on the council on the facts. Highway Authorities The old rule was that statutory authorities were not liable for non-feasance in their role as highway authorities. (Gorringe v Transport Commission (1950) 80 CLR 357 and Buckle v Bayswater Road Bd) Hughes v Hunters Hill Ccl NSW Ct of Appeal held that the Gorringe rule survived the decision in Sutherland v Heyman Ghantous v Hawkesbury Shire Council HCA June 2001 The P tripped and fell due to a depression in the footpath. The question was whether the D owed Mrs Ghantous a DoC. Brodie Shire Council v Singleton HCA June 2001 The P was driving a truck loaded with concrete across an old timber bridge, when it collapsed, and the P was injured. He sued the council. In both the above cases, the HC denied immunity for nonfeasance by highway authorities. The reasoning for this was delivered in a joint judgment by Gaudron, McHugh and Gummow JJ, with Kirby J agreeing: In highway cases, the law of negligence has subsumed nuisance In so far as they exclude the operation of the tort of negligence, Buckle, and Gorringe should no longer be followed. The relevant considerations for this are: 1. no such rule in other jurisdictions: Canada, USA, NZ, in UK matter covered by statute so common law rule no longer applies in country of origin. 2. decisions often turn upon capricious distinctions between misfeasance and nonfeasance, and between what is the highway, and what is other infrastructure (eg drains, sewers). 3. The misfeasance/nonfeasance distinction is illusory especially on the issue of repair or maintenance work. That is, an authority can be liable for an attempt to reduce danger, but not if they left it be). 4. Policy questions: the purposes served by the immunity now are not those served in England in Ages past. 5. The argument that without immunity, authorities will be subject to new indeterminate financial hazards and scrutiny of financial and budgetary matters is not tenable. They have insurance, and other corporations are “obliged to order their affairs to meet the rule of law.” 6. The argument that precedent demands the maintenance of immunity is not accepted: “stare decisis…should not always trump the need for desirable change in the law.” (per McHugh J in Perre v Apand) 7. Nuisance/negligence 8. the immunity and statute: RTA act refers to “immunities of a council in relation to a public road” without defining the immunity. This does not have the effect of entrenching the immunity, but rather attracts that immunity which may exist from time to time. what will replace the rule in Buckle and Gorringe? The abolition of immunity doesn’t mean strict liability. The content and breach of the DoC is to be determined according to the ordinary law of negligence…Wyong v Shirt Gleeson CJ, Hayne and Callinan JJ dissented. In Brodie, the appeal was allowed, and the case remitted to the Court of Appeal for decision on the issue of breach. Ghantous’ appeal was dismissed, as there was no breach of a duty by the council. Liability for Defective Structures This is the liability of non-occupiers to visitors or occupiers of negligently constructed buildings. Builders, developers, engineers, architects and local government all owe a duty of care to injured persons. But, what of the situation where there is no physical injury, only purely economic loss (that, is the cost of repair of defective structures). Economic Loss Dutton v Bognor Regis UBC [1972] 1 QB 373 It was held that the council owed a DoC to the P, and that it was liable for a failure to properly inspect faulty foundation. Lord Denning talked of a “material loss” - the cost of repair to avert threatened injury. Anns v Merton London Borough Council [1978] AC 728 It was held that the council owed a DoC in respect of negligently failing to properly inspect foundations. The damage was referred to as “material.” This case relied upon Dutton. However, since this case, the HofL has declined to follow Anns and overruled Dutton. Murphy v Brentwood District Council [1991] AC 398 It was held that the council was not liable in relation to faulty foundations, as there was no DoC, as the loss was purely economic. Sutherland Shire Council v Heyman (1985) 157 CLR 424 The HC held that the DoC of a statutority authority is dependant on the reasonable reliance of the P on D. The P’s loss was economic. Armidale Shire Council v Finlayson where the P was successful against the council because of reliance, and notwithstanding the fact that the loss was purely economic. Builders Builders are clearly liable where an injury is caused by an undiscovered defect on ordinary negligence principles. (Murphy v Brentwood [1991] AC 398 ). But of the situation where the loss is purely economic? Bryan v Maloney (1995) Aust Torts Reps 81-320 The P was the third owner of a house, seven years after construction. There was extensive cracking due to the builder’s negligence in laying faulty footings. The majority (Mason CJ, Deane, Dawson JJ) held that: P’s loss was purely economic. The DoC was dependant upon proximity and various factors of justice and policy which were relevant. These were: - the negligent failure by D to carry out a fundamental requirement of the originial contract to build could give rise to a DoC in tort to a third party. - (Policy) The question of indeterminacy is irrelevant as only the P is affected by D’s negligence. - (Policy) The purchase of a home is often the most important commercial transaction a P would ever make, and the D is much better able to avoid, evaluate, and safeguard against a latent defect. - (Policy) It avoids the anomalous situation where the D is liable if personal injury flowed from the negligent conduct, but not for economic loss incurred to prevent the same. - There was an assumption of responsibility by D, and a reliance by P. Architects succeeded. Whilst this was decided under the banner of proximity, there are relevant principles still to be extracted. Lord Oliver held that primary victims “involved either mediately or immediately as a participant.” A secondary victim was “no more than the passive and unwilling witness of injury caused to others.” He emphasized that this distinction was merely a label, and not a rule of law. It was held that all the Ps in this case were secondary victims. In order for a secondary victim to succeed in a nervous shock, it was held that the following criteria had to be fulfilled: - the P must have close ties of love and affection to the victim. This will be presumed in some situations (e.g. spouses, parent/child) and will have to be proven by evidence in other cases. - The P must have been present at the accident, or its aftermath, and witnessed it through the p’s own unaided senses. - The psychiatric injury must have been caused by direct perception of the accident or its immediate aftermath. The HofL held that the duty did not extend to those who saw the accident on TV or to the morgue afterwards. It was held that there was “no pressing policy need” to extend recovery as there is “no logical stopping point…where the elements of immediacy, closeness of time and space and direct visual or aural perception are absent.” White & Ors v the Chief Constable of South Yorkshire H of Lords 3.12.1998 The police brought an action for nervous shock from the events of Hillsborough. The H of L held that the police were not rescuers, but gave assistance to the injured. The police were never in physical danger themselves. Further, it was held that they weren’t rescuers, as they were doing their jobs. Thus, they were unsuccessful on this ground. They further argued that the police were employees, and therefore they were ‘primary victims’ because of the duty owed to them by their employer, but the ordinary principles for the recovery for nervous shock still applies. That is, Alcock control mechanisms, and thus, they did not succeed. Further, two policy grounds were enunciated to deny liability and these were firstly, a question of whether the police should recover where the victims of the deceased did not, and secondly the risk of a wide scope of potential liability for psychiatric harm. Coates & Anor v GIO of NSW (1995) 36 NSWLR 1 Kirby P held that recovery for nervous shock is not precluded merely by the fact that the deceased’s children were not in the sight or hearing of the accident or its aftermath. He held that the law should recognise that “it is…the direct emotional involvement of a P in an accident” that is relevant to nervous shock. The factors relevant to a DoC in Australia for nervous shock today are: - reasonable foreseeability of nervous shock injury - recognised psychological illness - sudden shock - involvement in an accident or aftermath. - Close ties of love and affection to victim(s). Morgan v Tame [2000] NSWCA 121 12 May 2000 The Respondent was involved in a car accident. In the course of investigating the accident, a "P4 Report" was completed by the Police. The P4 Report had been incorrectly filled out and showed the Respondent as having a blood-alcohol reading of 0.14. That was the reading of the other driver involved in the accident. The correct reading for the Respondent was nil. The Respondent was informed of the error by her solicitor. Subsequently she was told by the Police that the entry was a mistake and that it had been corrected. Notwithstanding that the Respondent was informed that all parties knew that the P4 Report had been filled out incorrectly, she developed a psychotic depressive illness. It was held that it was not reasonably foreseeable that a person would develop a psychiatric illness due to an error in filling out an accident form. Annets The P was not successful, as there was no sudden shock, and had not been involved in the accident or the aftermath. However, the above two cases have been granted special leave to appeal to the HC, so this is not settled law. Quayle v State of New South Wales [1995] Aust Torts Reports 81-367 The Ps were the mother and two brothers of an aboriginal man who hung himself in prison. He had been suffering from severe depression, and alcohol withdrawal symptoms, and thus, the brothers took him to Broken Hill Hospital. The hospital handed him over to the police, who unlawfully detained him, at which time he hung himself. A police officer ran into a brother, and told him that his brother had hung himself. The police asked the other brother to identify the body on a public street, as they were taking him to the hospital morgue. All plaintiffs were successful, as a single judge of the District Court held that third party communication should be compensable. s 4 of The Law Reform (Miscellaneous Provisions) Act 1944 provides liability…(for) injury caused…by an act neglect or default by which a…person is killed injured or put in peril shall extend to…nervous shock sustained by… (a) a parent or the husband or wife of the person killed etc…. (b) any other member of the family where such a person was killed (etc) …within the sight or hearing of such member of the family.” Note Kirby P’s judgment in Coates v GIO. This legislation does not deny a P the right to rely on the c. law, but the question has been left open by the HC in Jaensch v Coffey. Negligent Misstatement Derry v Peak It was held that P could only recover where the misstatement was fraudulent. Candler v Crane Christmas Lord Denning dissenting held that the D, an accountant owed a duty to a third party who he or his employer may show the accounts to. This duty extended to persons who used the accounts for any transaction for which the accountant knew they were prepared. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 4652 The majority of the HofL preferred Lord Denning’s approach in Candler v Crane. The Ps were advertising agents who placed ads for their clients Easy Power. They would provide the money required, and recover the expenses from the client later. They requested a credit report on Easy Power from the bank, which they provided. However, there was a disclaimer, which excluded liability. In obiter, the HofL held that if: - “in a sphere in which a person is placed… - that others could reasonably rely upon his judgement or skill… - a person takes it upon himself to give information or advice…or allows his information or advice to be passed on to another person - who…he knows or should know will place reliance upon it, - then a duty of care arises.” Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 Evatt wished to invest in a subsidiary of MLC’s and asked MLC’s advice regarding whether it was a viable investment. MLC stated that it was, and Evatt invested in the company. However, it went backrupt, and Evatt sued MLC. The question was whether MLC owed a duty of care. The HC found that there was DoC, and applied Hedley Byrne v Heller. Barwick CJ held that the D is liable, notwithstanding a lack of a special skill. A willingness to proffer the information was sufficient. However, the PC held that there was no DoC where there is no specialized skill. Shaddock v Parramatta City Council (1981) 36 ALR 385 The P’s solicitor called Parramatta Council to determine whether there were any road widening proposals. They also sent a written request for the information. The Council stated that no such plans existed. This was a misstatement, as the clerk filling out the form had neglected to check whether any proposals were proposed. There were road widening proposals for both roads on which the property Shaddock bought, and thus, the zoning was no longer commercial (the property was too small). Thus, they sued the council. Each of the five justices of the HC held that they preferred Barwick CJ’s view in MLC v Evatt that no specialized skill is required in itself, but rather, it is a factor in determining whether there was reasonable reliance. Gibbs CJ held that the principle of reasonable reliance “would…accord with general principle that a person should be under NO duty to take reasonable care that advice or information he gives is correct unless: - he knew or ought to know that the other relies on him to take such reasonable care - and may act in reliance on the advice or information… - and unless it would be reasonable for that other person so to rely and act.” San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act (1986) 162 CLR 340 The P was a property developer who saw plans published by Sydney City Council and the EPA about the redevelopment of Wooloomoloo. It wasn’t a final plan, and nor did it state that these plans would be put into effect. The developer bought property in Wooloomoloo on the basis of these plans. However, they were dropped. San Sebastian sued the council and the EPA arguing that they had been negligent in preparing and publishing the plans. The Court looked at the scope of the DoC, and to whom it was owed. It was held that the D was not liable on the basis that: - it is necessary that the D intends that P (or a class of persons of whom P is one) should act on the statement Where an omission takes place in the course of a larger activity, it is not a mere or pure omission, and it is actionable. In some circumstances, there will be a legally recognised pre-existing duty to take positive action. (e.g. occupier of land). Hargrave v Goldman (1963) 110 CLR 40 the D was a farmer who had a huge property in WA. A very large tree was struck by lightning and caught on fire. The farmer, when he became aware of it, took tankers of water out to it, chops it down, and sprays the water over it. It smoulders for a couple of days, after which it flared up again, destroying both his and his neighbour’s property. The neighbours sued the farmer arguing that a DoC existed. The HC agreed, stating that there is a duty “to exercise reasonable care where there is a fire upon his land (although not started or continued by him) of which he knows or ought to know, if by the exercise of reasonable care, it can be rendered harmless or its danger to neighbours diminished. On appeal to the PC, the PC went further than the HC and stated that “the development towards a measured duty of care by occupiers to remove or reduce hazards to their neighbours…the standard ought to require of the occupier what it is reasonable to expect of him in his individual circumstances.” Geyer v Downs (1977) 138 CLR 91 A student who goes to school early is hit over the head with a softball bat by another student. The principal knew that students arrived early, and omitted to provide supervision. The HC held that as the students are the pupils of the school, by virtue of the relationship, the school had a duty to refrain them from hurting one another. Smith v Leurs (1945) 70 CLR 256 The Ds were the parents of a thirteen year old boy who fired a stone at another child, using a slingshot, damaging his eyesight. The HC held that the parents owed a DoC to control their son. However, it was held that they had not breached their duty, as the parents had forbidden the boy from using it in the general direction of other people. Wormald v Robertson [1992] Aust Torts Reports 81-180 Demonstrated that a publican who knew of the drunken state of a patron who assaults another patron, is liable. The publican owes a DoC to their patrons that they restrain the drunk from assaulting them. L v The Commonwealth (1976) 10 ALR 269 There is a duty upon prison authorities to separate remand prisoners from convicted, violent prisoners, to ensure their safety. Lounds v Woods (1996) Aust Torts Reps 81-376 The P was a young epileptic man who was on holiday with his parents near Terrigal. He suffered an epileptic fit, and the mother remembered that there was a doctor up the road. She sent the daughter to call on the doctor, who refused to come, as he was too busy. The mother also called an ambulance, but the P had suffered irreversible brain damage by the time it had arrived due to oxygen deprivation. Evidence was adduced that had the doctor arrived at the time he was asked to, he could have stopped it by administering a normally available drug. Kirby and Priestle JJ found that the doctor owed a DoC due to his circumstantial proximity, and the societal and policy consideration, which lay an expectation upon doctors that they come to people’s aid. However, there is no requirement of a general duty to rescue. Rescuers The DoC owed to rescuers is independent of the duty owed to the person put in peril. Haynes v Harwood (1934) All ER 103) - the position used to be that the duty owed to rescuers was dependant upon that owed to the rescuee. Videan v British Transport Commissioner [1963] 2 All ER 860 It was held that whether the rescuee was a trespasser, or guilty of contributory negligence is irrelevant in regard to the duty owed to the rescuer, which is independent. Horsley v Maclaren (“The Ogopogo) [1971] 2 Lloyds Rep 410 A passenger fell from a yacht due to his own fault, and the owner’s unsuccessful maneouvres prompted another passenger to jump after him. The owner (if found negligent) would have been responsible for the drowning of the second. The duty owed to rescuers is based on their foreseeability. This is aptly demonstrated in Chapman v Hearse (1961) 106 CLR 112. Crossley v Rawlinson (1981) 3 All ER 675 The P was an Automobile Association man who saw the D’s truck on fire on the other side of the road. The tarpaulin hadn’t been properly affixed the tarpaulin, causing it to drag across the road surface, sparking off a fire. The P tripped on a manhole, and injured himself. It was held that he wasn’t owed a DoC, as it wasn’t foreseeable that he would trip over and hurt himself. Harrison v British Railways [1981] 3 All ER 679 The railway employee ran to catch the train and was hanging on to the moving train. The guard leans out to pull him in and they both fall out. The duty was still owed to the rescuer. The guard should have pulled the emergency stop leaver so there was a 20% reduction of damages. The argument of volenti has been refuted on the basis that the duty thrust upon the rescuer in an emergency, whether legal or moral intercedes to exclude all real choice, regardless of the rescuer being a volunteer or a professional. Baker v Hopkins [1959] 3 All ER 225 The P was the executor of the estate of a doctor, who went down a well to rescue workers who had been overcome by fumes. He too was overcome by the fumes, and died. It was held that he was owed a DoC by the employer, and the Court held that there was no contributory negligence, as the P’s actions must be judged in the emergency that existed. Pure Economic Loss There is no longer a blanket exclusion for recovery on the basis of purely economic loss in Australia. This is still the case in England. Weller & Co v Foot & Mouth Disease Research Institute [1966] 1 QB 569 The D was the F&M, whose negligence allowed F&M disease to escape. The cattle in the area were affected. The farmers had to kill their cattle. The Ps were stock engineers and stock yards, who made huge losses, when the stockyards were closed as a result of the outbreak. They sued the institute. However, the Court refused to impose a duty of care to purely economic loss. This was based purely on the following policy reasons: (a) indeterminate liability (b) disproportion between the D’s liability and the extent of culpability (c) concurrent duties in tort and contract (d) the need for certainty in the law (e) the effect of insurance. Caltex Oil (Aust) Pty Ltd v the Dredge “Willemstad” (1976) 136 CLR 529 Caltex had an oil depot on the shores of Botany Bay. The Oil Refinery was owned by the Australian Oil Refinery, across the bay. They built a pipeline under the bay from the refinery to Caltex. The Willemstad ran over and smashed the pipeline due to the master’s negligence. The oil could no longer be passed through the bay, and Caltex had to pay for trucks to go around the bay to collect the oil. The pipeline was owned by the refinery, and so, Caltex sued on the basis of purely economic loss, and was successful. The HC held that the general rule is that damages are not recoverable for economic loss which is NOT consequential upon injury to person or property. Foreseeability alone is not sufficient to allow for recovery. In exceptional cases, where the D has knowledge or means of knowledge that P individually, or P as an ascertained member of a class (and not merely a member of an unascertained class) is likely to suffer economic loss, the D will owe a DoC. The Court held that it would not formulate a principle that would cover all cases in which a duty is owed…all facts of a particular case must be considered (Gibbs J). Stephen J held that policy considerations are also relevant. Each of the justices delivered a separate judgment, and there is no discernable single ratio. In Mitsui OSK Lines Ltd v The Ship ‘Mineral Transporter’ (1983) 2 NSWLR 564; (1986) AC 1 (PC) The Supreme Court applied Caltex however, the PC applied the no recovery test, and was scathing in its criticism of Caltex. However, no attention has been paid to the PC’s criticism. The cases after Caltex have shown the difficulty of applying it. Ball v Consolidated Rutile Ltd (1991) 1 QdR 524 The P was a professional prawn trawler, who trawled in the bay. The D was a sand mining company, who allowed a larger sand dune to slip into the bay, causing lots of pollution and debris, which caused the D’s business to suffer. However, the P failed, as they could not demonstrate that the D knew of the Ps individually, or as members of an ascertained class. Christopher v MV ‘Fiji Gas’ (1993) Aust Torts Reps 81-202 The Ps were crew members of the Antonia which was damaged as a result of the negligent navigation of the Fiji Gas which ran into the Antonia. The Ps sued for loss of income. But, the Ps were unsuccessful, as the Court applied Caltex’s distinction between ascertained and unascertained classes. The Court held that the distinction was “not very satisfactory” but there was no alternative test. The difficulty was at the margins in differentiating between ascertained and unascertained classes. It was held that Ps were members of an unascertained class. Hawkins v Clayton (1988) 164 CLR 539 Hawkins was the executor of a client and also a beneficiary. Clayton had prepared a will, and kept it in safe-keeping in the offices. They did not realize that the client had died, and the will remained in the offices, until Clayton retired, at which time, a solicitor realised the mistake. The property was now worth considerably less. The Court held that they could have found the P easily had they checked. The question was whether Clayton owed a duty of care. This was determined on proximity principles. It was held that in cases of pure economic loss, the relationship of proximity will profit which would have been made on sale of damaged goods. However, the D wasn’t liable for other profits lost by P solely by reason of disruption to production e.g. goods which might have been for disruption. This later damage was held not to be recoverable, as it was not caused by the damage to property. Spartan Steel & Alloys v Martin [1973] QB 27 The P failed to recover lost profits not consequential upon damage to the P’s property. Death At common law, the death of one person has never been regarded as an injury to another. At common law, actio personalis moritur cum persona means that if the victim or tortfeasor dies prior to judgment, the action perishe as well. However legislative reform allows for the survival of a cause of action to the estate of the deceased. Some causes of action and heads of damage are excluded. S 2 of the Law Reform (Miscellaneous Provisions) Act states that “all causes of action shall survive against or… for the benefit of the estate.” Except defamation, seduction, inducing a spouse to leave…Damages recoverable do not include: - exemplary damages - damages for loss of earnings or earning capacity where death is caused by D’s act, damages calculated without reference to loss or gain to estate consequence upon death Where death is caused by D’s act, no damages are awarded for pain or suffering or mental harm, or for loss of expectation of life. One amount is awarded and then, apportioned amongst claimants as the Court thinks fit. The basic principle is that dependants are to be compensated for pecuniary loss resulting from the death: either actual, or prospective. Parker v the Commonwealth held that damages “should be calculated in reference to a reasonable expectation of pecuniary benefit…from continuance of the life.” S 3(1) states that “when…the death of a person is caused by a wrongful act…and the act is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages…then…the person who would have been liable…shall be liable to an action for damages…” S 3(2) states that funeral expenses can be recovered. S 3 (3) In assessing damages, insurance, superannuation, pension payable as a result of death are not taken into account. S 4 allows an action to be brought for the following relatives: wife, husband, brother, sister (including half brothers and sisters), parent, child, de facto spouse of deceased. S 7 (definitions) defines parent to include grandparents step parents, person “in loco parentis’, and child includes grandchild, stepchild. The Stella [1900] P 161 the widow of a man who died in a shipping accident, where he drowned, brought an action on his behalf. He had been a paying customer, however, an exclusion clause excluded liability for death or injury. The Court held that the exclusion clause was valid, and thus, the widow had no action under Lord Campbell’s Act as the deceased would have had no action, had he survived. Nunan v Southern Railways [1924] 1 KB 223 A widow was held to have a cause of action where the ticket of the deceased limited liability. The widow’s damages were not limited because her action under legislation was new and separate from the personal contract between the deceased and the railway company. The wrongful act causing death need not be tortious. Woolworths v Crotty (1942) 66 CLR 603 Mr Crotty was killed by a faulty light globe he bought at Woolworths which electrocuted him. It was held that the “wrongful act” could be a breach of an implied term in the contract. The relatives are required to establish that the wrongful act caused death. Haber v Walker [1963] VR 339 Haber was involved in a serious car accident, which rendered him very disabled. He also suffered a severe depressive illness caused by the accident, leading him to comit suicide. The relatives sued the negligent driver. The D argued that the causal connection had not been established between the accident and the suicide. Ultimately the Court found for the widow, holding that it was the accident which caused the severe depressive illness, which caused the deceased to commit suicide. Under s 10 (4) of the Act, contributory negligence will not affect the relatives claim. This is subject to s75 of the MAA and s 151N(5) of the Workers Comp Act. McIntosh v Williams [1979] 2 NSWLR 543 holds that the action is brought by the legal personal representative of the deceased - either the executor or the administrator of the estate. This person brings the action on behalf of all entitled victims. Concurrent Liability Concurrent liability occurs where more than one tortfeasor is negligent and causes P’s damage. The different types of tortfeasors include joint tortfeasors, several concurrent tortfeasors and several tortfeasors causing different damage. Joint tortfeasors are where more than one party act together and jointly cause P’s damage. This includes: - vicarious liability - agency - a duty imposed jointly e.g. two occupiers jointly liable to the injured P. - where two or more D’s take concerted action to a common end e.g. atuthor, publisher, and printer of defamatory material. The plaintiff has one cause of action against all joint tortfeasors. The Ds are jointly and severally liable, and the plaintiff can recover 100% against any or all of the tortfeasors. Several concurrent tortfeasors is where two or more defendants, not acting in concert, who nevertheless inflict a single injury on P (e.g. two negligent drivers collide and injure a passenger in one of the cars). The P has several causes of action in respect of one injury, and the Ds are jointly, and severally liable. Several tortfeasors causing different damage is where the P has two or more different injuries caused by two or more defendants. In which situation, the plaintiff has two causes of action, each liable for separate damage. Traditionally at common law, the rule in Merryweather v Nixon 101 ER 1337 one tortfeasor could not recover any contribution from another. This position has been abolished by s 5 of the Law Reform (Miscellaneous Provisions) Act 1944. This allows a concurrent tortfeasor (whether joint or several) to recover from the others a contribution to the damages paid to the plaintiff. The contributions legislation is: - only applicable in tort, and not in contract or other areas. - The contribution can be claimed by “any tortfeasor liable in respect of damage” so this includes a D who has settled a claim, not only one against whom a judgment has been entered. - Contribution can only be claimed from a defendant who has contributed to the “same damage” that is, joint or several concurrent tortfeasors. - The contribution can be claimed from a D who “is or would if sued have been liable” so it is immaterial whether the P actually sues all Ds or that contribution proceedings are brought after the plaintiff’s claim would be statute barred. - The contribution recoverable in terms of amount is “such as may be found by the court to be just and equitable having regard to the extent” of the defendant’s responsibility for the damage. - Under the leg’n a tortfeasor can join another tortfeasor to the proceedings. Lister v Romford Ice and Cold Storage [1957] AC 555 the plaintiff was the employee of Romford Ice, who was injured due to the negligence of a fellow employee - his father. The p sued the employer for vicarious liability for the employee’s negligence. The plaintiff is awarded damages, and then, the employer sues the negligent employee for contribution to damages, and receives 100% contribution from the employee. s 3 of the Employees Liability Act 1991 states that the joint tortfeasor rule does not apply to a situation which is comparable to Lister. Clarey v The Principal & Council of The Women’s College [1953] 90 CLR 170 The defendants were the Women’s college who leased premises to students. The neighbours brought an action in nuisance for the noise generated by the students. However, the HC held that the noises were of the sort incidental to the occupation of the property, and thus, the neighbours were unsuccessful. McKenzie v Powley the Ps were the neighbours of a Salvation Army hall, who commenced services at 7 am on a Sunday. The ps brought an action in nuisance, and the SASC agreed that the noise constituted a nuisance at 7 am, but not at 9 am. Robinson v Kilvert (1889) 41 Ch D 88 The P used a warehouse to store delicate paper products, and a manufacturing process of the D’s required heating, the heat damaging the Ps products. However, it was held that where P is involved in “an exceptionally delicate trade” he cannot recover for nuisance. Hollywood Silver Fox Farm v Emmett (1936) 2 KB 468 The D’s son fired off shots close to the pens of silver foxes under the instructions of D, maliciously in order to annoy the P. When alarmed, silver foxes eat their young, and refuse to breed, and this happened as a result of the D’s son’s actions. The Court held that as the D had acted maliciously, the P would recover, even though the P’s activity was hypersensitive. Who Is Liable The D does not need to have proprietary rights in the land from which the nuisance emanates. Fennell v Robson Excavation Pty Ltd (1977) 2 NSWLR 486 The D was a contractor who was found to be liable for creating a nuisance even though he was not in occupation or possession of the land. He had excavated so much land that the Plaintiff’s house started sinking. Where an owner adopts or continues a nuisance, they are liable. Sedliegh-Denfield v O’Callaghan (1940) AC 880 The local council installed a drainage pipe on the D’s land. In installing it, they had trespassed. The D didn’t know of this, but when they came to know of it, they used the pipe to drain their property. The result was that some of the drainage had overflowed on to the Ps property. The court held that the D was liable for nuisance, as they ahd allowed the nuisance to continue, and they had further adopted it. D “continues a nuisance if with knowledge of its existence, he fails to take any reasonable means to bring it to an end.” D adopts nuisance “if he makes any use of …(the thing) which constitutes the nuisance.” Montana Hotels v Fasson Pty Ltd (1986) 69 ALR 258 The Ds were in possession of a faulty downpipe, which caused the hotel to be flooded. However, it was held that the Ds weren’t liable as the D didn’t know or didn’t ought to know of the downpipe. There is an obligation to stop nuisance where the D knows of it. Goldman v Hargrave [1967] 1 AC 645 (PC) It was held that once the farmer became aware of a danger on the property they should have taken steps to eliminate or reduce the danger. The PC held that it wasn’t the actions of what the reasonable person would have done that is taken into account, but the D’s resources - physical and financial, which are taken into account. Leakey v National Trust [1980] QB 485 The Trust was the occupier of a property which was on Burrow Hump, which was liable to slip. The D knew of this, and did nothing. The P suffered damage as a result, and the D was held to be liable in nuisance, as they didn’t take any remedial action, and their resources were more than sufficient to undertake the work. This followed Goldman v Hargrave. Defence of Statutory Authorisation Where an act of parliament expressly or impliedly authorizes the creation of a nuisance, it is a proper defence. Managers of The Metropolitan District Asylum v Hill (1881) 6 App Cas 193 The asylum was a creature of statute, which was charged with the job of setting up a hospital for people with contagious diseases. The neighbours brought an action in nuisance. The Ds argued that they were statutorily authorized to set up the hospital, and thus, were immune from an action for nuisance. The court held that where a statute expressly states the authorisation, this is true, where it is implied, the onus is on the D to demonstrate the authorisation. The Court held that the weight of evidence didn’t favour the authorisation. York Bros (Trading) Pty Ltd v The Commissioner for Main Roads (1983) 1 NSWLR 391 The Commissioner built a road bridge across a navigable river, which obstructed the flow of the river. The Ps sued in nuisance. The Ds argued statutory authorisation by the Main Roads Act. The NSWSC held that the act did not provide a defence. Powell J held that: - prima facie, it is not the intent of the legislature to authorize nuisance. - D must show that the work was reasonably necessary - And that it was properly performed - AND that there was no reasonable way of performing the work without creating a nuisance, in light of available scientific knowledge. Public Nuisance Public nuisance affects the public at large, is a crime, the action is brought by the Attorney General, and private individuals don’t have standing to sue unless they have suffered particular damage that is over that which suffered by the public at large. AG v PYA Quarries Ltd (1957) 2 QB 169 Denning J held the following on the question of how many persons are “the Public”: “I decline to answer how many people…I prefer to look at the reason of the thing… a public nuisance is…so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings…but it should be taken on the responsibility of the community at large.” Worker’s Compensation The Worker’s Compensation Act 1987 has been significantly amended by the NSW parliament in 2001, with the Compensation Court hearing only existing claims and eventually ceasing operations. New claims are to be determined by the Compensation Commission with the aid of expert panels. Common law rights are subject to further amending legislation still to be finalized. These rights are to be substantially limited. A judicial enquiry headed by Justice Sheahan was set up to look at some of these proposed changes and has recently reported to parliament. The pieces of legislation governing Worker’s compensation in NSW are: the Workers Compensation Act 1987, Workplace Injury Management and Workers Compensation Act 1998, and Workers Compensation Legislation Amendment Act 2001 (still to be proclaimed). The former two pieces of legislation are to be read as if they are part of the same act. Where there is a discrepancy, the later act prevails. (s2A). The 1987 act continues to govern liability to pay compensation, entitlements (other than to lump sums) and Common Law claims. It is anticipated that c. law claims will be significantly restricted or even abolished by further amending legislation in 2001 or 02. The 1998 Act primarily deals with rehabilitation and injury management and procedures for claims (including conciliation). The claims and procedures provisions have been amended by the 2001 act and apply now only to old claims. “Injury management” is defined as the process that comprises activities and procedures that are undertaken or established for the purpose of achieving a timely, safe and durable return to work for injured workers. (s42(1)). The 2001 Act makes significant amendments relating to lump sum compensation and sets up new claims procedures. Disputed claims are referred to the Workers Compensation Commission for assessment. The Compensation Court only has jurisdiction in respect of existing claims. It will eventually cease to exist. The legislation at present: Creates rights on a no-fault basis for injured workers and their dependants(where the worker is deceased) Is in addition to common law rights BUT Limits workers right to damages at common law If damages awarded, then a worker is not entitled to any w.c. benefits and any benefits already paid will have to be repaid. The time limit for common law claims is three years…except with leave of the Court. (s151D) The threshold for c.law damages discourages minor claims. S 151G states that the sum for damages for pain and suffering is to be awarded only in most extreme cases and if damages assessed at below a specific figure, then NO damages payable, and a deductible (i.e. reduction) applies up to a higher figure. S151H states that there will be no damages for economic loss unless there has been a serious injury - one where there is at least 25% of the s66 benefit would be payable or damages over a certain amount would be payable for non-economic loss. Common Law damages are to be subject to further amending legislation following the Sheahan Report. It is anticipated that it will include: A 20% “total body impairment” threshold before c.law proceedings can be brought No damages for pain and suffering - just direct ec. Loss e.g past & future earnings, out of pocket expenses etc. No election would have to be made b/w workers comp. and c.law. Motor Accidents Compensation The Motor Accidents Act 1999 unlike the Workers Compensation Act leaves the common law regarding negligence intact. It simply ‘fiddles’ with the damages available and provides a threshold before one can sue. It commenced on 1.10.99 and applies to accidents after that date. The old act (MAA1988) as amended applies to matters arising before that date. It significantly alters and reduces the rights of claimants to compensation for injuries received in motor accidents. The political motivation for this is to reduce costs of compensation, legal costs, and thereby the cost of “Green Slip” insurance. It is designed as an assessment and settlement procedure whose aim is to keep cases out of the court system. Definitions: Motor accident: accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle. Injury: personal injury includes pre-natal injury, psychological or psychiatric injury, damage to artificial members. Procedure for all claims: Report to police & lodge notification w/in 28 days of accident (s70) Insurer must notify w/in ten days whether it accepts provisional liability for medical treatment.