Australian Torts Law [4 ed.] 9780409342062, 0409342068

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Australian Torts Law Fourth Edition

Amanda Stickley LLB, Grad Dip Leg Prac, LLM, Grad Cert Ed (Higher Ed) (QUT) Associate Professor, Faculty of Law Queensland University of Technology Senior Fellow, Higher Education Academy (UK)

LexisNexis Butterworths Australia 2016

AUSTRALIA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects: Dewey Number:

Stickley, Amanda. Australian Torts Law. 4th edition. 9780409342048 (pbk). 9780409342062 (ebk). Includes index. Torts — Australia — Textbooks. 346.9403

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. First edition 2005. Second edition 2009 (reprinted 2010, 2011 and 2012). Third edition 2013 (reprinted 2014 and 2015). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Myriad Pro and Minion Pro. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface The law of torts covers such a wide range of actions, that when undertaking research and writing, it looms as a very daunting task. However, it also allows research into areas that you rarely consider, and given the variety and constant change, means that it is always interesting. This is the fourth edition of Australian Torts Law, and it follows the same format as the previous edition, attempting to examine the law as it currently operates and provide some historical context. As with previous editions, the aim is to provide a comprehensive coverage of the law of torts in a way that students may appreciate. The action of negligence continues to dominate the monograph, as it does in all torts texts, and with the passing of nearly 15 years since the civil liability legislation was introduced, the case law continues to grow as courts grapple with the subtle differences and issues of interpretation. With the ease of access to unreported judgments and the latest of cases online, it is difficult to know when enough is enough, but hopefully a sufficient range of cases have been included to demonstrate the points of law without going overboard. Extracts of legislation have been included where possible — always an issue when there are usually differences between the eight Australian jurisdictions. Teaching torts law to first-year students at the Queensland University of Technology remains the favourite part of my job, and I thank my students for their feedback over the years. My thanks also go to Jocelyn Holmes at LexisNexis Butterworths for her support and encouragement. My daughter Jaimie is now four years older since the last edition and assures me that she needs no acknowledgement this time.

The law is that as generally stated at April 2016, with minor additions during the editing of the book. Amanda Stickley

Table of Cases References are to paragraph numbers A A v Hoare [2008] 1 AC 844 …. 14.43 — v New South Wales (2007) 230 CLR 500; 233 ALR 584 …. 1.9, 7.11, 7.13, 7.16, 7.17 A (Children) (Conjoined Twins: Surgical Separation), Re [2000] 4 All ER 961 …. 6.44 A, DC v Prince Alfred College Inc [2015] SASCFC 161 …. 20.46 A G Spalding & Bros v A W Gamage Ltd (1915) 84 LJ Ch 449 …. 24.6, 24.14, 24.30 — v — (1918) 35 RPC 101 …. 24.6, 24.14, 24.30 ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1; 309 ALR 445 …. 19.22, 19.28, 19.31, 19.45 Abraham bht Abraham v St Mark’s Orthodox Coptic College [2006] NSWSC 1107 …. 9.72 AC Billings & Sons Ltd v Riden [1958] AC 240 …. 9.21 Ace Insurance Ltd v Trifunovski (2011) 284 ALR 489 …. 20.9 ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372 …. 9.38 ACN 087528774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559 …. 3.27, 3.31 AD & SM McLean Pty Ltd v Meech (2005) 13 VR 241 …. 20.71 Adam v Ward [1917] AC 309; [1916–17] All ER Rep 157 …. 22.29, 23.33, 23.36, 23.39, 23.40, 23.46, 23.50 Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 …. 15.16, 15.33 — v Shire of Taringa [1927] QSR 163 …. 25.70 — v Vesco Nominees Pty Ltd [2004] QDC 305 …. 14.9 Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693 …. 21.15 — v Motor Vehicle Insurance Trust (1957) 58 WALR 56 …. 1.27, 11.13 Addie v Dumbreck [1929] AC 358 …. 9.9 Addis v Crocker [1961] QB 11 …. 23.28 Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 …. 9.24, 11.42, 12.22, 12.33, 12.34, 12.41

Adelaide Chemical Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514 …. 9.122 Admiralski v Stehbens [1960] Qd R 510 …. 15.121, 15.123 Admiralty Commissioners v Owners of SS Amerika [1917] AC 38 …. 17.5 — v SS Valeria [1922] AC 242 …. 15.31 — v Susquehanna (Owners) [1926] AC 655 …. 5.93 Agar v Hyde (2000) 201 CLR 552; 173 ALR 665 …. 10.139, 13.66 Ahern v R (1988) 165 CLR 87; 80 ALR 161 …. 24.63 Ahmedi v Ahmedi (1991) 23 NSWLR 288 …. 15.75 Aircraft Technicians of Australia Pty Ltd v St Clair [2011] QCA 188 …. 15.72, 20.52 Airedale NHS Trust v Bland [1993] AC 789 …. 6.25 Airworks (New Zealand) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641 …. 20.24 Aitken Agencies Ltd v Richardson [1967] NZLR 65 …. 5.50 Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; 268 ALR 409 …. 22.60, 23.33, 23.44 Alameddine v Glenworth Valley Horse Riding (2015) 324 ALR 355 …. 13.70 Albrecht v Patterson (1886) 12 VLR 597 …. 22.15, 22.16 Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 …. 9.101, 20.13, 20.68 Alcan Give Pty Ltd v Zabic (2015) 325 ALR 1 …. 12.1 Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 …. 18.6, 18.14, 18.16 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 …. 10.57 Aldersea v Public Transport Corporation (2001) 3 VR 499 …. 19.88 Alderslade v Hendon Laundry Ltd [1945] 1 All ER 244 …. 13.104 Aldred v Benton (1610) 9 Co Rep 57; 77 ER 816 …. 25.25 Alexander v Mayor and Corporation of Sydney (1861) 1 SCR (NSW) App 26 …. 25.92 — v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221 …. 23.6 — v Perpetual Trustees WA Ltd (2003) 216 CLR 109; (2004) 204 ALR 417 …. 21.17 Alford v Magee (1952) 85 CLR 437 …. 13.3 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 …. 23.118, 23.139 Al-Kandari v J R Brown & Co [1988] QB 665 …. 9.104 Allen v Chadwick (2014) 68 MVR 82 …. 13.45 — v — (2015) 326 ALR 505 …. 13.29, 13.45 — v Flood [1898] AC 1 …. 24.54, 24.60, 24.81 — v Gulf Oil Refining Ltd [1981] AC 1001 …. 6.49, 25.56, 25.57, 25.101 — v Wright (1838) 8 C & P 522; 173 ER 602 …. 3.70 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; 215 ALR 385 …. 12.31 Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292 …. 22.15

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 130 ALR 469 …. 24.46, 24.48 Almeroth v W E Chivers & Sons Ltd [1948] 1 All ER 53 …. 25.59 Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR 576 …. 12.50 — v King (2011) 35 VR 280 …. 15.152 — v New South Wales (2003) 199 ALR 596; 77 ALJR 1509 …. 21.17, 21.23 — v — (2004) Aust Torts Reports ¶81-749 …. 10.123, 10.128 Amaca Pty Ltd (under NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW administered winding up) v Booth (2011) 283 ALR 461; 86 ALJR 172 …. 12.48, 12.49 Amadio Pty Ltd v Henderson (1998) 81 FCR 149 …. 9.109 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 …. 22.50, 22.54 Amess v Hanlon (1873) 4 AJR 90 …. 6.5 AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 …. 24.89, 24.92, 24.99 Amstad v Brisbane City Council & Ward (No 1) [1968] Qd R 334 …. 6.49 Anchor Products Ltd v Hedges (1966) 115 CLR 493 …. 11.102, 11.105 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387 …. 9.47, 18.22, 18.36 Andary v Burford (1994) Aust Torts Reports ¶81-302 …. 15.21 Anderson v Commonwealth (1932) 47 CLR 50 …. 15.2 — v Enfield City Corporation (1983) 34 SASR 472 …. 9.122, 11.78 — v Gorrie [1895] 1 QB 668 …. 6.55 — v Smith (1990) 101 FLR 34 …. 9.79 Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400; [2006] NSWCA 22 …. 5.11 Andreae v Selfridge & Co Ltd [1938] Ch 1 …. 25.46 Andrewartha v Andrewartha (1987) 44 SASR 1 …. 17.18 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 …. 23.130 Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955 …. 10.150, 11.63, 13.93 Angus v Clifford [1891] 2 Ch 449 …. 19.73 Anikin v Sierra (2004) 211 ALR 621; 79 ALJR 452 …. 9.60 Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 …. 25.47 Anns v London Borough of Merton [1978] AC 728 …. 10.9, 10.10, 10.16, 10.33 Anonymous (1535) YB 27 H VIII f 27 …. 25.94 Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211 …. 24.2, 24.5, 24.56, 24.69, 24.70, 24.82 Archer v Brown [1985] QB 401 …. 19.84, 19.89 Argent Pty Ltd v Huxley [1971] Qd R 331 …. 17.4

Argentine, The (1889) 14 App Cas 519 …. 15.49 Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 …. 5.38, 5.93, 6.45 Armstrong v Sheppard & Short Ltd [1959] 2 QB 384 …. 4.68 — v Strain [1952] 1 KB 232 …. 19.77, 20.55 Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615; [2000] 3 All ER 673 …. 9.113, 9.114 Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 …. 15.54, 15.87, 15.152 AS v Minister for Immigration and Border Protection [2014] VSC 593 …. 9.84 Ascic v Westel Cooperative Ltd (1992) Aust Torts Reports ¶81-159 …. 11.79, 15.79 Ashby v Tolhurst [1937] 2 KB 242 …. 6.46 — v White (1704) 14 St Tr 695; 92 ER 710 …. 18.51 Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533 …. 5.88 Associated Newspapers plc v Insert Media Ltd [1991] 1 WLR 571 …. 24.33 Astley v Austrust Ltd (1999) 197 CLR 1; 161 ALR 155 …. 1.29, 9.91, 13.6 Atkinson v Newcastle and Gateshead Waterworks Co (1877) LR 2 Ex D 441 …. 18.10, 18.13 Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129 …. 15.68, 15.150 Attia v British Gas plc [1988] QB 304 …. 10.41 Attorney-General v Great Cobar Copper Mining Co (1900) 21 NSWR 351 …. 4.18 — v Nottingham Corporation [1904] 1 Ch 673 …. 15.9 — v PYA Quarries Ltd [1957] 2 QB 169 …. 25.78, 25.85, 25.86, 25.87, 25.93 — v Wilson & Horton Ltd [1973] 2 NZLR 238 …. 17.7, 17.8 Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237 …. 17.21 — v — [1955] AC 457 …. 17.4 Attorney-General; Ex rel Pratt v Brisbane City Council [1988] 1 Qd R 346 …. 25.79 .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521; 61 IPR 81; [2004] FCA 424 …. 24.35, 24.36 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1 …. 9.115 Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 …. 25.13 Austin v Mirror Newspapers Ltd [1986] AC 299; (1985) 63 ALR 149 …. 23.83 Austral Bronze Co Pty Ltd v Ajaka (1970) 44 ALJR 155 …. 18.32 Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; 173 ALR 619 …. 21.19 Australia and New Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 …. 5.75, 5.78 Australian Broadcasting Corp v Chatterton (1986) 46 SASR 1 …. 23.20 — v Comalco Ltd (1986) 68 ALR 259 …. 23.83, 23.125, 23.130 — v Hanson [1998] QCA 306 …. 22.69

— v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1 …. 1.12, 7.24, 7.25 — v O’Neill (2006) 227 CLR 57; 229 ALR 457 …. 15.15, 23.71, 23.105, 23.108, 23.110 Australian Capital Territory Schools Authority v El Sheik (2000) Aust Torts Reports ¶81-577 …. 9.71 Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305; 255 ALR 1 …. 22.98 — v Chen (2003) 201 ALR 40 …. 22.96 Australian Consolidated Press Ltd v Uren [1969] 1 AC 590 …. 15.19 Australian Consolidated Press Pty Ltd v Ettingshausen (NSWCA, Gleeson CJ, Kirby P and Clarke JA, 13 October 1993, unreported) …. 23.124 Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216 …. 9.103 Australian Guarantee Corporation Ltd v State Bank of Victoria Commissioners [1989] VR 617 …. 6.63 Australian Iron & Steel Ltd v Greenwood (1962) 107 CLR 308 …. 23.128 — v Krstevski (1973) 128 CLR 666; 2 ALR 45 …. 11.60 Australian National Airways Ltd v Phillips [1953] SASR 278 …. 3.18 Australian Newspaper Co Ltd v Bennett [1894] AC 284 …. 22.63 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 …. 5.45 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615 …. 9.10, 9.12 Australian Wool Innovation Pty Ltd v Newkirk (2005) ATPR ¶42-053 …. 24.62 Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 …. 24.14 Awaroa Holdings Ltd v Commercial Securities and Finance Ltd [1976] 1 NZLR 19 …. 19.5 Axiak v Ingram [2011] NSWSC 1447 …. 13.19 Azzopardi v State Transport Authority (Rail Division) (1982) 30 SASR 434 …. 13.19 B B (Adult: Refusal of Medical Treatment), Re [2002] 2 All ER 449 …. 6.25 B M Auto Sales Pty Ltd v Budget Rent a Car System Pty Ltd (1976) 12 ALR 363 …. 24.31 Badenach v Calvert (2016) 90 ALJR 610; 331 ALR 48 …. 10.99, 10.105 Bader v Jelic [2011] NSWCA 255 …. 11.68 Bailiffs of Dunwich v Sterry (1831) 1 B & Ad 831; 109 ER 995 …. 5.8 Bain v Altoft [1967] Qd R 32 …. 6.9 Baker v Bolton (1808) 1 Camp 493; 170 ER 1033 …. 16.1 — v Dalgleish Steam Shipping Co [1922] 1 KB 361 …. 16.23 — v MacKenzie (2015) 72 MVR 421 …. 11.31 — v Police [1997] 2 NZLR 467 …. 4.11 — v Willoughby [1970] AC 467 …. 12.52 Baker’s Creek Consolidated Gold Mining Co v Hack (1894) 15 LR (NSW) Eq 207 …. 4.6

Baldwin v Cole (1704) 6 Mod Rep 212; 87 ER 964 …. 5.48 Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524 …. 10.84, 10.85, 25.87 Ballard v Multiplex [2012] NSWSC 426 …. 24.60, 24.67 — v North British Railway Co [1923] SC 43 …. 11.110 Ballina Shire Council v Ringland (1994) 33 NSWLR 680 …. 22.4, 22.74, 24.101 Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 …. 3.63, 6.29 Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 …. 22.72 Balven v Thurston [2013] NSWSC 210 …. 3.22, 3.23 — v — [2015] NSWSC 1103 …. 4.64 Bamberger v Mirror Newspapers Ltd (1969) 43 ALJR 242 …. 23.81 Bamford v Turnley (1860) 3 B & S 62; 122 ER 27 …. 25.25, 25.42, 25.47, 25.98 Bangoura v The Washington Post [2005] OJ No 3849 …. 22.24 Bank of New South Wales v Owston (1879) 4 App Cas 270 …. 20.27 Banks v Ferrari [2000] NSWSC 874 …. 5.56, 5.60, 6.45 Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 …. 1.19, 15.8, 25.39, 25.58, 25.70 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; 65 ALR 1 …. 9.26, 9.32 Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245 …. 25.18, 25.53, 25.74, 25.102 Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 …. 23.51, 23.52 Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608 …. 10.91, 10.93, 10.112, 16.1, 17.5, 17.7, 17.8 Barker v Corus (UK) Ltd [2006] 2 AC 572; [2006] 3 All ER 785 …. 12.47 — v Furlong [1891] 2 Ch 172 …. 5.8 — v Permanent Seamless Floors Pty Ltd [1983] 2 Qd R 561 …. 21.9 — v R (1983) 153 CLR 338; 47 ALR 1 …. 4.25, 4.39, 6.9 Barnes v Hay (1988) 12 NSWLR 337 …. 12.58 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428 …. 12.21 — v Cohen [1921] 2 KB 461 …. 16.23, 16.26 Barrak Corp Pty Ltd v Kara Group of Companies Pty Ltd [2014] NSWCA 395 …. 11.110 Barrett v J R West Ltd [1970] NZLR 789 …. 19.26 Barton v Armstrong [1969] 2 NSWR 451 …. 3.22, 3.23 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 …. 23.35, 23.36, 23.42, 23.43, 23.44, 23.46, 23.58 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399 …. 15.3 Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 …. 25.17 Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616 …. 21.1, 21.2, 21.5, 21.7, 21.13, 21.14

— v Woolcombers Ltd (1963) 107 Sol Jo 553 …. 11.11 Bazley v Curry (1999) 174 DLR (4th) 45; [1999] 2 SCR 534 …. 20.5, 20.41, 20.42, 20.49 BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd [1991] 2 All ER 129; [1990] 1 WLR 409 …. 5.83, 5.85 Beach Petroleum NL v Johnson (1993) 115 ALR 411 …. 19.76 Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1 …. 9.13 Beaudesert Shire Council v Smith (1966) 120 CLR 145 …. 2.26, 2.27 Beckett v New South Wales (2013) 248 CLR 432; 297 ALR 206 …. 7.15, 7.17 Beckingham v Port Jackson & Manly Steamship Co (1957) SR (NSW) 403 …. 6.42 Beckwith v Shordike (1767) 4 Burr 2092; 98 ER 91 …. 4.43, 26.28 Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521 …. 24.99 Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER 583 …. 26.3, 26.8, 26.10, 26.11, 26.15 Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; 208 ALR 271 …. 9.84 Beitzel v Crabb [1992] 2 VR 121 …. 23.20 Bellambi Coal Co Ltd v Murray (1909) 9 CLR 568 …. 9.42 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 …. 23.52 Belsize Motor Supply Co v Cox [1914] 1 KB 244 …. 5.89 Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210 …. 5.74 Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 …. 4.20, 4.67 Benic v New South Wales [2010] NSWSC 1039 …. 11.44 Benjamin v Storr [1874] LR 9 CP 400 …. 25.85 Benmax v Austin Motor Co Ltd [1955] AC 370 …. 11.96 Bennett v Dopke [1973] VR 239 …. 6.30 — v Minister of Community Welfare (1992) 176 CLR 408; 107 ALR 617 …. 12.28, 12.76 Benning v Wong (1969) 122 CLR 249 …. 6.50, 25.31, 25.58, 25.72 Berkoff v Burchill [1996] 4 All ER 1008 …. 22.27, 22.37, 22.39, 22.46, 22.50 Bernstein v Skyviews & General Ltd [1978] QB 479 …. 4.19, 4.20, 4.44, 7.22 Berry v British Transport Commission [1962] 1 QB 306 …. 7.18 — v Humm & Co [1915] 1 KB 627 …. 16.27 Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121 …. 13.12 Berwin v Donohoe (1915) 21 CLR 1 …. 11.94 Besozzi v Harris (1858) 175 ER 650 …. 26.10 Besser v Kermode (2011) 282 ALR 314 …. 23.15 Best v Samuel Fox & Co Ltd [1952] AC 716 …. 17.10, 17.11

Betts v Whittingslowe (1945) 71 CLR 637 …. 12.53 Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334 …. 19.100 Bici v Ministry of Defence [2004] EWHC 786 (QB) …. 3.16 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 …. 23.87 — v John Fairfax & Sons Ltd [1982] 1 NSWLR 498 …. 23.87 Bielitski v Obadiak (1922) 65 DLR 627 …. 7.3 Biggar v McLeod [1978] 2 NZLR 9 …. 9.111 Bilambil-Terranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465 …. 4.60 Bily v Arthur Young & Co (1992) 834 P 2d 745 …. 19.45 Bird v Holbrook (1828) 4 Bing 628; 130 ER 911 …. 2.25 — v Jones (1845) 7 QB 742; 115 ER 668 …. 3.53 Birss v R [1923] NZLR 1058 …. 16.8 Bishop v New South Wales [2000] NSWSC 1042 …. 22.90 Bisset v Wilkinson [1927] AC 177 …. 19.6 Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport (1955) 92 CLR 200 …. 21.17 Bitupave Ltd (t/as Boral Asphalt) v Pillinger (2015) 72 MVR 460 …. 11.44 Bjelke-Petersen v Warburton [1987] 2 Qd R 465 …. 22.74 Black v Walden (2008) Aust Torts Reports ¶81-950 …. 16.41 Blacker v Waters (1928) 28 SR (NSW) 406 …. 2.7, 2.20 Blackmore v Beames (SASC, King CJ, Cox and Matheson JJ, No 92–709, 8 February 1993, unreported) …. 11.19 Blackney v Clark [2013] NSWDC 144 …. 13.98 Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956 …. 10.150 Blades v Higgs (1861) 10 CBNS 713; 142 ER 634 …. 5.72 Blake v JR Perry Nominees Pty Ltd (2012) 38 VR 123 …. 20.28, 20.45 Bleyer v Google Inc (2014) 88 NSWLR 670; 311 ALR 529 …. 22.78 Bliss v Hall (1838) 4 Bing (NC) 183; 132 ER 758 …. 25.5, 25.64 Bloodworth v Cormack [1949] NZLR 1058 …. 25.98 — v Gray (1844) 7 Man & G 334; 135 ER 140 …. 22.16 Blundell v Musgrave (1956) 96 CLR 73 …. 15.61, 15.89, 17.21 Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 …. 1.6, 11.2 Boardman v Sanderson [1964] 1 WLR 1317 …. 10.41 Bob Jane Corp Pty Ltd v ACN 149 801 141 Pty Ltd (2013) 97 ACSR 127 …. 24.23 Boden v Roy Gordon & Gordon [1985] 1 Qd R 482 …. 15.50

Bodenstein v Hope Street Urban Compassion [2014] NSWDC 126 …. 23.132 Bodley v Reynolds (1846) 8 QB 779; 115 ER 1066 …. 5.81 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582 …. 11.20, 11.73, 11.76, 11.77 Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 …. 19.17 Bolitho v City and Hackney Health Authority [1998] AC 232; [1997] 4 All ER 771 …. 11.73 Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 WLR 277 …. 24.18, 24.19, 24.22 Bolton v Stone [1951] AC 850; [1951] 1 All ER 1078 …. 11.4, 11.51, 11.52 Bolton, Re; Beane, Ex parte (1987) 162 CLR 514 …. 3.64 Bone v Seale [1975] 1 All ER 787 …. 25.75 Bonic v Fieldair (Deniliquin) Pty Ltd [1999] NSWSC 636 …. 25.27 Bonnington Castings Ltd v Wardlaw [1956] AC 613 …. 8.20, 12.42, 12.44, 12.52 Borland v Makauskas [2000] QCA 521 …. 9.20, 11.43, 11.86 Botany Bay City Council v Latham (2013) 197 LGERA 211 …. 10.151 Boughey v R (1986) 161 CLR 10 …. 3.10, 3.11 Bourgoin SA v Ministry of Agriculture [1986] QB 716 …. 18.63 Bourk v Power Serve Pty Ltd [2008] QSC 29 …. 9.41 Bowditch v McEwan (2002) 36 MVR 235 …. 1.22, 1.57, 9.59 Bower v Peate [1876] 1 QBD 321 …. 20.71 Bowin Designs Pty Ltd v Australian Consumers Association (1996) A Def R 52-078 …. 23.44 Bowling v Weinert [1978] 2 NSWLR 282 …. 18.10 Boyd v Mirror Newspapers Ltd [1980] 2 NWSLR 449 …. 22.43 — v State Government Insurance Office (Qld) [1978] Qd R 195 …. 15.40 Boyle v Kodak Ltd [1969] 2 All ER 439; [1969] 1 WLR 661 …. 18.29 Bradburn v Great Western Railway Co (1874) LR 10 Ex 1 …. 15.134 Bradford Corporation v Pickles [1895] AC 587 …. 1.8 Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 …. 19.76, 19.78 Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 …. 7.7 Brady v Schatzel; Brady, Ex parte [1911] St R Qd 206 …. 3.26, 3.27, 3.28 Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 …. 21.17, 21.20 Brand v Bardon [1997] NSWCA 48 …. 9.123, 9.126 Brandeis Goldschmidt & Co Ltd v Western Transport Co Ltd [1981] QB 864 …. 5.92 Branson v Bower [2002] QB 737 …. 23.89 Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311 …. 4.20, 4.68, 15.10 Bresatz v Przibilla (1962) 108 CLR 541 …. 15.83

Brierley v Kendall (1852) 17 QB 937 …. 5.74 Briess v Woolley [1954] AC 333 …. 19.82 Brightwater Care Group v Rossiter [2009] WASC 229 …. 6.25 Brinsmead v Harrison (1872) LR 7 CP 547 …. 21.4, 21.6, 21.10 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1 …. 14.2, 14.59, 14.60 Bristow v Adams [2010] NSWCA 166 …. 23.127 British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 1 WLR 959 …. 25.27 British Electric Railway Co Ltd v Gentile [1914] AC 1034 …. 16.7 British Fame (Owners) v Macgregor (Owners) [1943] AC 197 …. 13.46 British Motor Trade Association v Gray 1951 SC 586 …. 24.41 — v Salvardori [1949] Ch 556 …. 24.51 British Railways Board v Herrington [1972] AC 877 …. 9.9 British Telecommunications plc v One in a Million Ltd [1998] 4 All ER 476 …. 15.9 British Transport Commission v Gourley [1956] AC 185 …. 15.85 British Westinghouse Electric & Mfg Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673 …. 15.39 Broadhurst v Millman [1976] VR 208 …. 11.90 Brock v Copeland (1794) 1 Esp 203; 170 ER 328 …. 26.13 Broderick Motors Pty Ltd v Rothe (1986) Aust Torts Reports ¶80-059 …. 25.24 Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145 …. 1.4, 10.6, 10.19, 10.20, 10.28, 10.36, 10.135, 10.147, 10.148, 25.84, 25.85, 25.99 Broken Hill City Council v Tiziani (1997) 93 LGERA 113 …. 15.51 Broken Hill Proprietary Co Ltd v Fisher (1984) 38 SASR 50 …. 19.89 Brook v Cook (1961) Sol Jo 684 …. 26.8 Brooke v Bool [1928] 2 KB 578 …. 20.25, 21.5 Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408 …. 10.28, 10.114, 10.115, 10.118 Broom v Morgan [1953] 1 QB 597 …. 20.8 Broughton v Competitive Foods Australia Pty Ltd (2005) Aust Torts Reports ¶81-791 …. 11.28 Brown v Hawkes [1891] 2 QB 718 …. 7.16 — v Raphael [1958] Ch 636; [1958] 2 All ER 79 …. 19.7 — v Willington [2001] ACTSC 100 …. 15.104 Brulhart v Jarman [1964] NSWR 1210 …. 18.18 Brunsden v Humphrey (1884) 14 QBD 141 …. 12.1, 15.34, 16.8 Bruton v Estate Agents Licensing Authority [1996] 2 VR 274 …. 23.42, 23.63

Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163 …. 1.30, 10.5, 10.13, 10.28, 10.75, 10.79, 10.97, 10.107, 10.108, 10.109, 10.110, 10.113, 10.116, 10.117, 10.118, 14.24 BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221 …. 19.44, 19.48, 19.50 Buckle v Bayswater Road Board (1936) 57 CLR 259 …. 10.146 — v Holmes [1926] 2 KB 125 …. 26.24 Bugge v Brown (1919) 26 CLR 110 …. 20.27, 20.28, 20.34 Bujdoso v New South Wales (2004) 1512 A Crim R 235 …. 9.83 Bulli Coal Mining Co v Osborne [1899] AC 351 …. 4.17 Bullock v Miller (1987) Aust Torts Reports 80-128 …. 15.73 Bulsey v Queensland [2015] QCA 187 …. 3.58 Bunney v South Australia (2000) 77 SASR 319 …. 4.70 Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 …. 5.39, 5.48, 5.49, 5.52, 5.61, 5.64 Bunyan v Jordan (1937) 57 CLR 1 …. 3.28, 7.3 Burford v Allen (1993) 60 SASR 428 …. 15.66, 15.73 Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349 …. 16.23 Burke v LFOT Pty Ltd (2002) 209 CLR 282 …. 9.109 Burnett v Randwick City Council [2006] NSWCA 196 …. 5.32 Burnicle v Cutelli [1982] 2 NSWLR 26 …. 17.15 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 …. 9.122, 20.17, 20.62, 20.66, 20.67, 20.70, 20.71, 20.73, 25.38 Burns v Edman [1970] 2 QB 541 …. 12.9 Burrows v Rhodes [1899] 1 QB 816 …. 19.80 Burton v Davies [1953] St R Qd 26 …. 3.54 — v Islington Health Authority [1993] QB 204 …. 9.59 — v Spragg [2007] WASC 247 …. 4.17 Bury v Pope (1586) 78 ER 375 …. 25.21 Bus v Sydney City Council (1988) 12 NSWLR 675 …. 11.30 — v — (1989) 167 CLR 78; 85 ALR 577 …. 11.30, 11.81, 11.88 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; 212 ALR 357 …. 19.97, 19.109 Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 …. 5.79, 5.86, 5.93, 15.25, 25.73 — v Fife Coal Co Ltd [1912] AC 149 …. 9.33, 9.36, 18.18 — v Simmonds Crowley & Galvin [1999] QCA 475 …. 18.47, 18.50 Butterfield v Forrester (1809) 11 East 60; 103 ER 926 …. 11.111, 13.2, 25.101 Buxton v Minister of Housing and Local Government [1961] 1 QB 278 …. 18.16 Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422 …. 18.3, 18.4, 18.9, 18.10, 18.12, 18.18, 18.19

— v Boadle (1863) 2 H & C 722; 159 ER 299 …. 11.102, 11.107 — v Deane [1937] 2 All ER 204 …. 22.33, 22.34, 22.35, 22.59, 22.89 C C v Holland [2012] 3 NZLR 672 …. 7.31 C Czarnikow Ltd v Koufos [1969] 1 AC 350 …. 9.26 C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 2 All ER 784; [1977] 1 WLR 659 …. 4.57 Cabassi v Vila (1940) 64 CLR 130 …. 23.24 Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; 239 ALR 662 …. 24.24, 24.35 — v Pub Squash Co Pty Ltd (1980) 32 ALR 387 …. 24.9, 24.12, 24.21, 24.24 Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 …. 22.63, 23.138 CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390; 260 ALR 606 …. 9.7, 9.16 Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 …. 15.151 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 …. 10.8, 10.126, 11.60, 11.66 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 …. 8.24 Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227 …. 10.22, 10.23, 10.28, 10.77, 10.79, 10.81, 10.82, 10.83, 10.85, 10.86, 10.87, 10.93, 10.94 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 …. 10.28 Calveley v Chief Constable of Merseyside Police [1989] AC 1228; 1 [1998] 1 All ER 1025 …. 12.15 Calwell v Ipec Australia Ltd (1975) 135 CLR 321 …. 23.70 Cambridge University Press v University Tutorial Press (1928) 45 RPC 335 …. 24.28 Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264; [1994] 1 All ER 53 …. 25.37 Cameron v Commissioner for Railways [1964] Qd R 480 …. 1.25, 9.80 Caminer v Northern & London Investment Trust Ltd [1951] AC 88 …. 11.20 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610 …. 19.103, 19.109 — v Li-Pina (2007) 47 MVR 279 …. 16.20, 16.38 — v MGN Ltd [2004] 2 All ER 995 …. 5.31 Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677 …. 24.13, 24.16 Canadian Pacific Railway Company v Lockhart [1942] AC 591 …. 20.35 Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 173 ACTR 33 …. 24.5 Candler v Crane Christmas & Co [1951] 2 KB 164 …. 19.10, 19.11 Cannon v Tahche (2002) 5 VR 317 …. 18.60 Canterbury Bankstown Rugby League Football Club Pty Ltd v Rogers (1993) Aust Torts Reports ¶81-

246 …. 6.7, 20.37 Canterbury Municipal Council v Taylor [2002] NSWCA 24 …. 13.51, 13.52 Caparo Industries Plc v Dickman [1990] 2 AC 605; [1990] 1 All ER 568 …. 10.7, 10.15, 10.29 Capebay Holdings Pty Ltd v Sands [2002] WASC 287 …. 9.108 Carangelo v New South Wales [2016] NSWCA 126 …. 12.40 Carey v Freehills (2013) 303 ALR 445 …. 10.106 — v Lake Macquarie City Council (2007) Aust Torts Reports ¶81-874 …. 13.50 Carlton v Pix Print Pty Ltd [2000] FCA 337 …. 19.61 Carmarthenshire County Council v Lewis [1955] AC 549 …. 9.76, 12.78 Carrera v Honeychurch (1983) 32 SASR 511 …. 26.29 Carrier v Bonham [2002] 1 Qd R 474 …. 1.27, 6.65, 7.6, 11.13 Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292 …. 12.72 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; 113 ALR 577 …. 23.116, 23.121 Carter v Kenyon (1863) 2 SCR (NSW) 222 …. 25.6 — v Walker (2010) Aust Torts Reports ¶82-076 …. 2.24, 3.3, 3.13, 3.17, 3.84, 7.3 — v — (2010) 32 VR 1 …. 2.16 Cartledge v E Jopling & Sons Ltd [1963] AC 758; [1963] 1 All ER 341 …. 14.17, 14.18, 14.22, 14.24, 15.33 Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305 …. 23.3 — v Zurgalo [1968] ALR 134 …. 15.121 Casley-Smith v F S Evans & Sons Pty Ltd (No 5) (1988) 67 LGRA 108 …. 25.15 Cassell & Co Ltd v Broome [1972] AC 1027 …. 3.75, 19.84 Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 …. 22.32, 22.57, 22.71 — v Ministry of Health [1951] 2 KB 343 …. 9.101, 20.18 Castle v St Augustine’s Links Ltd (1922) 38 TLR 615 …. 25.80 Caterson v Commissioner for Railways (1973) 128 CLR 99 …. 13.9, 13.14, 13.24 Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 …. 1.61, 8.6, 10.5, 10.34, 12.8, 12.14, 12.86, 15.28, 15.41 Cavalier v Pope [1906] AC 428 …. 9.21 Central Queensland Speleological Society Inc v Central Queensland Cement (No 1) [1989] 2 Qd R 512 …. 16.8 Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 …. 20.28, 20.32 Cerutti v Crestside Pty Ltd [2014] QCA 33 …. 23.139 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 …. 15.41 Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986] AC 337; [1986] 1 All ER 480 …. 5.85, 5.89 Chadwick v Allen [2012] SADC 105 …. 13.45

Chairman, National Crime Authority v Flack (1998) 156 ALR 501 …. 5.37 Chakravarti v Advertiser Newspapers (1998) 193 CLR 519; 154 ALR 294 …. 22.27, 22.38, 22.49 Challen v McLeod Country Golf Club (2004) Aust Torts Reports ¶81-760 …. 25.8, 25.32 Chan v Acres [2015] NSWSC 1885 …. 9.2, 10.112, 10.114 Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 24,675; Aust Torts Reports ¶81-896; [2007] NSWSC 694 …. 21.42 Chang v Chang [1973] 1 NSWLR 708 …. 1.24 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468 …. 23.80, 23.81, 23.82, 23.87 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 …. 23.5, 23.134 — v Parras (2002) Aust Torts Reports ¶81-675 …. 22.73 Chaplin v Dunstan Ltd [1938] SASR 245 …. 20.31 Chapman v Ellesmere [1932] 2 KB 431 …. 23.101 — v Hearse (1961) 106 CLR 112 …. 10.8, 11.43, 12.64, 12.78, 13.25, 13.98 Chappel v Hart (1998) 195 CLR 232; 156 ALR 517; [1998] HCA 55 …. 12.20, 12.26, 12.45, 12.88 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports ¶80-691 …. 23.126 — v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 …. 23.80, 23.106, 23.107 Charsley v Jones (1889) 53 JP 280 …. 9.21 Chatterton v Gerson [1981] 1 All ER 257 …. 6.16 — v Secretary of State for India [1895] 2 QB 189 …. 23.32 Chester v Waverley Corporation (1939) 62 CLR 1 …. 10.41, 10.48 Chew v Amanatidis [2009] SASC 334 …. 19.28 Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299 …. 4.38 Chicco v Corporation of City of Woodville (1990) Aust Torts Reports ¶81-028 …. 11.78 Chief Commissioner of Railways and Tramways (NSW) v Boylson (1915) 19 CLR 505 …. 16.23 Childrens Television Workshop Inc v Woolworths (NSW) Ltd [1981] 1 NSWLR 273 …. 24.20, 24.27 Chin Keow v Government of Malaysia [1967] 1 WLR 813 …. 11.14 Chinery v Viall (1860) 5 H & N 288; 157 ER 1192 …. 5.86 Chisholm v State Transport Authority (1987) 46 SASR 148 …. 11.99 Chong v CC Containers Pty Ltd [2015] VSCA 137 …. 24.62 Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; 91 ALR 149 …. 9.24, 18.16 Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 …. 22.74 Christie v Davey [1893] 1 Ch 316 …. 25.52 Christopher v MV ‘Fiji Gas’ (1983) Aust Torts Reports ¶81-202 …. 10.84, 10.85 Christopherson v Bare (1848) 116 ER 554 …. 3.13

Church of Scientology Inc v Anderson [1980] WAR 71; (1979) 46 FLR 202 …. 22.17 — v Woodward (1982) 154 CLR 25; 43 ALR 587 …. 7.23 Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 …. 23.107 Cinnamond v British Airports Authority [1980] 1 WLR 582 …. 4.39 City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477 …. 5.59, 5.89 Civil Service Co-Op Society of Victoria Ltd v Blyth (1914) 17 CLR 601; 20 ALR 161 …. 19.72 Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170; [1953] ALR 850 …. 25.43 Clark v Ainsworth (1996) 40 NSWLR 463 …. 23.122 Clark Boyce v Mouat [1993] 3 NZLR 641 …. 9.105 Clarke v Army & Navy Co-operative Society Ltd [1903] 1 KB 155 …. 9.123 — v President, Councillors and Ratepayers of the Shire of Gisborne [1984] VR 971 …. 10.10 Clavel v Savage [2013] NSWSC 775 …. 7.6 Clearlite Holdings Ltd v Auckland City Corporation [1976] 2 NZLR 729 …. 25.96 Clegg v Deardon (1848) 12 QB 576; 116 ER 986 …. 4.47 Clement v Backo [2007] 2 Qd R 99 …. 15.101 — v Milner (1880) 3 Esp 95; 170 ER 550 …. 6.47 Clifford v Dove [2006] NSWSC 314 …. 25.31 Clifton v Bury (1887) 4 TLR 8 …. 4.44 Clissold v Cratchley [1910] 2 KB 244 …. 18.49 Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447 …. 9.24 Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR l …. 10.55, 10.56, 12.16 Coca Cola Co v PepsiCo Inc (No 2) (2014) 322 ALR 505; 109 IPR 429 …. 24.24 Coco v R (1994) 179 CLR 427; 120 ALR 415 …. 6.50 Cohen v City of Perth (2000) 112 LGERA 234 …. 25.17, 25.26, 25.48, 25.49, 25.57, 25.69 Cohen, Re; National Provincial Bank Ltd v Katz [1953] Ch 88 …. 4.17 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52 …. 1.37, 8.6, 9.11, 9.15, 10.20, 10.28, 10.37, 10.39, 11.33 — v Turner (1704) 6 Mod Rep 149; 90 ER 958 …. 3.8, 3.9, 3.16 Coleman v Buckingham’s Ltd [1963] SR (NSW) 171 …. 18.41 — v Watson [2007] QSC 343 …. 3.83 Collins v Carey [2002] QSC 398 …. 26.6 — v — (2003) Aust Torts Reports ¶81-709 …. 26.30 Collins v Clarence Valley Council [2015] NSWCA 263 …. 10.151, 11.63, 13.94 — v Wilcock [1984] 3 All ER 374; [1984] 1 WLR 1172 …. 3.2, 3.11

Colls v Home and Colonial Stores Ltd [1904] AC 179 …. 25.21 Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; [1932] ALR 73 …. 20.53, 20.55, 20.56 Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 …. 23.88 Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337 …. 19.78, 19.79 Commissioner for Railways v Halley (1978) 20 ALR 409 …. 13.16 — v Small [1957] ALR 529 …. 8.24, 11.93 Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392 …. 1.9, 17.2, 17.3, 17.4 Commissioner of Main Roads v Jones (2005) 215 ALR 418; 79 ALJR 1104 …. 11.96 Commissioner of Railways v Ruprecht (1979) 142 CLR 563; 25 ALR 481 …. 13.7, 13.9, 13.15 Commonwealth v Chessell (1991) 101 ALR 182 …. 15.52 — v Connell (1986) 5 NSWLR 218 …. 20.19 — v Cornwell (2007) 229 CLR 519; 234 ALR 148 …. 14.26, 19.62 — v Fernando (2012) 200 FCR 1; 287 ALR 267 …. 18.58 — v Introvigne (1982) 150 CLR 258; 41 ALR 577 …. 8.9, 9.71, 9.75, 9.76, 11.96, 20.67 — v McLean (1996) 41 NSWLR 389 …. 12.67 — v Quince (1944) 68 CLR 227 …. 17.4, 20.19 — v Winter (1993) 19 MVR 215 …. 11.67 Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 …. 8.24 — v Smith (1991) 102 ALR 453 …. 9.105 Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 …. 1.9, 7.12 — v Smith (1938) 59 CLR 527 …. 7.15, 7.17 Commonwealth of Australia v Verwayen (1990) 170 CLR 394 …. 14.7 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering (Australia) Pty Ltd; Siemens Ltd v CEPU (2005) 223 ALR 480 …. 24.52 Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 1319 …. 24.14 ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465 …. 24.7, 24.9, 24.10, 24.14, 24.17, 24.23 Connolly v Sunday Times Publishing Co Ltd (1908) 7 CLR 263; 15 ALR 29 …. 15.18 Consolidated Company v Curtis & Son [1892] 1 QB 495 …. 1.5, 5.45, 5.55, 6.64 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 …. 22.65, 22.66, 22.70 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (ACN 004 620 731) [2014] VSCA 348 …. 24.75 Conway v George Wimpey & Co Ltd [1951] 2 KB 266 …. 20.35

Cook v Batchellor (1802) 3 Bos & Pul 151 …. 22.86 — v Cook (1986) 162 CLR 376; 68 ALR 353 …. 1.57, 11.22, 11.23, 11.24, 11.25 Cookson v Harewood [1932] 2 KB 478 …. 23.100 Cope v Sharpe (No 2) [1912] 1 KB 496 …. 6.41, 6.42 Copyright Agency Ltd v Haines [1982] 1 NSWLR 182; 40 ALR 264 …. 2.26, 24.5 Corbett v Pallas (1995) Aust Torts Reports ¶81-239 …. 25.98 Cornfoot v Fowke (1840) 6 M & W 358; 151 ER 450 …. 19.65, 19.77 Cornwall v Rowan (2004) 90 SASR 269 …. 18.54, 18.56 Corporation of London v Appleyard [1963] 2 All ER 834 …. 4.17 Corvisy v Corvisy [1982] 2 NSWLR 557 …. 3.85 Coryton v Lithebye (1670) 2 Wm Saund (5th ed) 115 …. 22.86 Couch v Steel (1854) 118 ER 1193 …. 18.11 Coupey v Henley, Whale and Webster (1797) 170 ER 448; 2 Esp 540 …. 3.69 Council of the City of Greater Taree v Wells [2010] NSWCA 147 …. 11.35 Cousins v Wilson [1994] 1 NZLR 463 …. 4.13 Cowell v Corrective Services Commission (NSW) (1988) 13 NSWLR 714 …. 3.17, 3.71, 6.64 — v Rosehill Racecourse Co Ltd (1937) 56 CLR 605 …. 4.31, 4.34, 4.49 Cox v Burbridge (1863) CB (NS) 430; 143 ER 171 …. 26.24, 26.26 — v New South Wales (2007) 71 NSWLR 225 …. 15.30 Coyne v Citizen Finance Ltd (1991) 172 CLR 211; 99 ALR 252 …. 23.123, 23.138, 23.140 Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 …. 4.62, 4.64 Craig v Marsh (1935) 35 SR (NSW) 323 …. 5.84 Credit Lyonnais Nederland NV (now known as General Bank Nederland NV) v Export Credits Guarantee Department [2000] 1 AC 486; [1999] 1 All ER 929 …. 20.29, 20.52 Cresswell v Swirl [1947] 2 All ER 730 …. 6.41, 6.42 Cridge v Commonwealth (1961) 10 FLR 275 …. 21.24 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 …. 10.15, 10.20, 10.28, 10.121, 10.140, 10.141 Cripps v Vakras [2014] VSC 279 …. 23.79 Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435 …. 24.60, 24.63, 24.66, 24.70 Crofts v Waterhouse (1825) 3 Bing 319; 130 ER 536 …. 9.64 Crook v Thyssen Mining Construction of Australia Pty Ltd (1992) 9 SR (WA) 10 …. 11.109 Cross v Certain Lloyds Underwriters [2011] NSWCA 136 …. 3.78 — v Denley (1952) 52 SR (NSW) 112 …. 22.77 Crowther v Australian Guarantee Corporation Ltd (1985) Aust Torts Reports ¶80-709 …. 5.65

Cruttendon v Brenock [1949] VLR 366 …. 26.6 CS v Bierdrzycka [2011] NSWSC 1213 …. 9.100, 12.86 CSR Ltd v Della Maddalena (2006) 224 ALR 1; 80 ALJR 458 …. 1.15, 10.44, 12.8, 12.17 — v Eddy (2005) 226 CLR 1; 222 ALR 1 …. 15.54, 15.101, 15.104, 15.105, 17.15 Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 …. 3.51, 20.21 Cull v Green (1924) 27 WALR 62 …. 25.14 Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1 …. 15.85, 15.146 Cumberland v Clark (1996) 39 NSWLR 514 …. 7.13 Cummings v Granger [1977] 1 All ER 104; [1976] 3 WLR 842 …. 26.12, 26.13 Cunliffe v Woods [2012] VSC 254 …. 23.28, 23.98 Cunningham v Harrison [1973] 1 QB 942; 3 All ER 463 …. 15.89 Curmi v McLennan [1994] 1 VR 513 …. 9.82 Curran v Greater Taree City Council (1992) Aust Torts Reports ¶81-152 …. 19.27 Curtis v Chemical Cleaning & Dyeing Co [1951] 1 KB 805 …. 19.5 Cusack v Heath [1950] QWN 16 …. 15.134 Cush v Dillon (2011) 243 CLR 298; 279 ALR 631 …. 23.33, 23.39, 23.50 Cutler v United Dairies [1933] 2 KB 297 …. 13.98 — v Wandsworth Stadium Ltd [1949] AC 398 …. 18.17, 18.24 Curran v Young (1965) 112 CLR 99 …. 17.10, 17.20 Cutcheon v Davis [1964] QWN 4 …. 17.22 Cvetkovic v Princes Holdings (t/a Tilt Amusement Centre) (1989) 51 SASR 365 …. 13.63 Czatyrko v Edith Cowan University (2005) 214 ALR 349 …. 9.45, 13.16, 20.65 D Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 …. 11.96 Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333 …. 11.67 Daebo Shipping Co Ltd v Ship Go Star (2012) 207 FCR 220; 294 ALR 635 …. 24.40, 24.48 Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762 …. 24.48 Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291 …. 25.45 Dairy Farmers Cooperative Ltd v Azar (1990) 170 CLR 293; 95 ALR 1 …. 18.18 Dalton v Henry Angus & Co (1881) 6 App Cas 740 …. 25.18, 25.19 D’Amico v Calavary Hospital Auxiliary Inc [2013] ACTSC 259 …. 9.34 Danby v Beardsley (1878) 43 LT 603 …. 7.12 Daniel v Anniversary Nominees Pty Ltd (1990) 9 SR (WA) 35 …. 11.108 Daniels v Burfield (1994) 125 ALR 33 …. 11.95

Dank v Whittaker [2014] NSWSC 732 …. 23.119 Dansar Pty Ltd v Bryon Shire Council (2014) 89 NSWLR 1 …. 10.142 Darby v Director of Public Prosecutions (2004) 61 NSWLR 558 …. 3.11 Darcy (bht Aldridge) v New South Wales [2011] NSWCA 413 …. 3.59, 3.61 Dare v Dobson [1960] SR (NSW) 474 …. 21.24 Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 …. 18.17, 18.19, 18.20, 20.5, 20.8 Darroch v Dennis [1954] VLR 282 …. 16.39 Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169 …. 22.96 David v David [2009] NSWCA 8 …. 10.105 David Syme & Co v Canavan (1918) 25 CLR 234 …. 22.74 Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1 …. 5.79, 5.80, 15.45 Davie v New Merton Board Mills Ltd [1959] AC 604 …. 1.56, 9.42 Davies v Bennison (1927) 22 Tas LR 52 …. 4.45 — v London & Provincial Marine Insurance Co (1878) 8 Ch D 469 …. 19.75 — v Tomkins [2009] WASCA 2 …. 9.62 Davis v Bunn (1936) 56 CLR 246 …. 11.102, 11.103, 11.104, 11.110 — v Cole [1939] VLR 320 …. 26.24 — v Council of the City of Wagga Wagga [2004] NSWCA 34 …. 8.25 — v Gell (1924) 35 CLR 275; 31 ALR 49 …. 7.15 — v Nationwide News Pty Ltd [2008] NSWSC 693 …. 23.119 — v Pearce Parking Station Pty Ltd (1954) 91 CLR 642 …. 13.104 — v Swift (2014) 69 MVR 375 …. 13.26 Davis Contractors v Fareham Urban District Council [1956] AC 696 …. 11.5 Davison (as personal plaintiff representative of the estate of Staines, decd) v Wilkinson [2006] QSC 212 …. 4.69 Day v Bank of New South Wales (1978) 18 SASR 163; 19 ALR 321 …. 6.63 — v Ost [1973] 2 NZLR 385 …. 19.26 DC Thomson Ltd & Co v Deakin [1952] 1 Ch 646; [1952] 2 All ER 361 …. 24.43, 24.52, 24.53 De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 1 WLR 972 …. 24.90, 24.94 De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498 …. 25.8 De Reus v Gray (2003) 9 VR 432 …. 21.7 De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 …. 16.20, 16.34, 16.37, 16.38 Dean v Phung [2011] NSWSC 653 …. 6.11 — v — [2012] NSWCA 223 …. 3.13, 6.11, 6.15, 6.16, 6.17

Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466 …. 1.12, 25.7 Deatons Pty Ltd v Flew (1949) 79 CLR 370 …. 20.37, 20.38, 20.46 Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262 ALR 53; 83 IPR 245 …. 24.10, 24.20, 24.22, 24.32, 24.36 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 …. 11.59 Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173 …. 5.70 Deen v Davies [1935] 2 KB 282 …. 26.38 Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117 …. 24.4, 25.24, 25.89 Dehn v Attorney-General [1988] 2 NZLR 564 …. 6.42 Delaney v T P Smith Ltd [1946] KB 393 …. 4.5 Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737 …. 25.11 Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608 …. 19.104 Derrick v Cheung (1999) 29 MVR 351 …. 11.82 — v — (2001) 181 ALR 301 …. 11.82 Derring Lane Pty Ltd v Fitzgibbon (2007) 16 VR 563 …. 19.50 Derry v Peek (1889) 14 App Cas 337 …. 19.2, 19.64, 19.72 Dessent v The Commonwealth (1977) 51 ALJR 482 …. 15.151 Deutsch v Rodkin [2012] VSC 450 …. 24.63 Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173 …. 20.24 DHR International Inc, a company incorporated in Delaware in the United States of America v Challis [2015] NSWSC 1567 …. 24.99 Diamond v Simpson (No 1) (2003) Aust Torts Reports ¶81-695 …. 15.130, 15.151 DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210 …. 9.39 Dick v University of Queensland [2000] 2 Qd R 476 …. 14.59 Dickenson v Waters Ltd (1931) 31 SR (NSW) 593 …. 3.51 Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; 6 ALR 171 …. 21.17 Dimmock v Hallett (1866) LR 2 Ch App 21 …. 19.5 Dininis v Kaehne [1982] 29 SASR 118 …. 15.39 Dingle v Associated Newspapers Ltd [1964] AC 371; [1962] 3 WLR 229 …. 23.121 Dixon v Bell (1816) 1 Stark 87; 171 ER 475 …. 9.121 — v Davies (1982) 17 NTR 31 …. 15.125 — v Western Australia [1974] WAR 65 …. 9.86 Dobler v Halverson (2007) 70 NSWLR 151 …. 11.72, 13.83 Dobson v Thames Water Utilities Ltd [2011] EWHC 3253 …. 25.25 Dodwell v Burford (1669) 1 Mod 24; 86 ER 703 …. 3.5

Doe v Australian Broadcasting Corporation [2007] VCC 281 …. 7.27 Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 …. 25.47 Domachuk v Feiner (NSWCA, Sheller JA, Giles and Simos AJJA, BC9606851, 28 November 1996, unreported) …. 25.25 Dominion Natural Gas Co Ltd v Collins [1909] AC 640 …. 9.123 Donaldson v Broomby (1982) 40 ALR 525 …. 3.64 — v Natural Springs Australia Ltd [2015] FCA 498 …. 24.5, 24.48 Donnelly v Joyce [1974] QB 454; [1973] 3 All ER 475 …. 15.61, 15.89, 15.90 Donoghue v Stevenson [1932] AC 562 …. 1.41, 1.42, 1.62, 8.10, 8.11, 9.3, 9.9, 9.23, 9.119, 9.121, 9.122, 9.123, 9.124, 9.125, 9.127, 10.5, 10.8, 10.21, 10.26, 10.28, 10.30, 10.41, 10.90, 10.137, 19.10, 19.12, 19.13, 25.93 Doodeward v Spence (1908) 6 CLR 406; 15 ALR 105 …. 5.3 Dorman v Horscroft (1980) 24 SASR 154 …. 26.12, 26.33 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 …. 9.114, 18.41, 19.17 Doubleday v Kelly [2005] NSWCA 151 …. 11.32, 11.44, 13.11, 13.54, 13.68 Dougherty v Chandler (1946) 46 SR (NSW) 370 …. 23.56 Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738 …. 5.53 Douglass v Lewis (1982) 30 SASR 50 …. 23.25 Doust v Godbehear (1925) 28 WALR 59 …. 24.41 Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 …. 11.109 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 …. 9.124, 11.16, 11.65, 11.69 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 …. 22.6, 22.23, 22.24, 22.75, 22.78 Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509 …. 18.43 Downing v WIN Television (NSW) Pty Ltd (No 2) [2011] NSWSC 563 …. 4.53 Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 …. 19.84 Draper v British Optical Association [1938] 1 All ER 115 …. 15.2 — v Hodder [1972] 2 QB 556 …. 26.5, 26.29 — v Trist (1939) 56 RPC 429; [1939] 3 All ER 513 …. 24.30 Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR 42–013; [2004] FCAFC 169 …. 24.62, 24.65 Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 …. 18.28 Drinkwater v Howarth [2006] NSWCA 222 …. 11.37, 11.44 Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 …. 11.91 Duffy v Google Inc [2015] SASC 170 …. 22.78, 22.92 — v Google Inc (No 2) [2015] SASC 206 …. 23.122 Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75 …. 22.80 Dulieu v White [1901] 2 KB 669 …. 10.40

Duncan v Bell [1967] Qd R 425 …. 13.63 Dunlop v Woollahra Municipal Council [1982] AC 158 …. 2.26, 18.51 Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367 …. 22.14 Dunster v Abbott [1953] 2 All ER 1572; [1954] 1 WLR 58 …. 9.9 Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125 …. 18.34 E E v English Province of Our Lady of Charity [2013] QB 722 …. 20.17 E Hulton & Co v Jones [1910] AC 20 …. 15.24, 22.64, 22.67, 23.4 Eade v Vogiazopoulos [1999] 3 VR 889 …. 19.8 Eagles v Orth [1975] Qd R 197 …. 13.19, 13.28 Earl of Harrington v Derby Corporation [1905] 1 Ch 205 …. 25.76 Earl of Shrewsbury’s case (1610) Co Rep 466; 77 ER 798 …. 25.94 East v Maurer [1991] 2 All ER 733; [1991] 1 WLR 461 …. 19.87 East Dorset District Council v Eaglebeam Ltd [2006] EWHC 2378 …. 25.85 East Suffolk Catchment Board v Kent [1941] AC 74 …. 25.84 Eastern Distributors Ltd v Goldring [1957] 2 QB 600 …. 5.54 Easther v Amaca Pty Ltd [2001] WASC 328 …. 15.104 Eather v Jones [1974] 2 NSWLR 19; (1975) 6 ALR 220 …. 26.5 Eatock v Bolt (2011) 197 FCR 261; 283 ALR 505 …. 23.1 Eaves v Donelly [2011] QDC 207 …. 3.82, 3.84 EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia [2005] 3 SCR 45 …. 20.41 Ebbels v Rewell [1908] VLR 261 …. 4.7 Edgington v Fitzmaurice (1885) 29 Ch D 459 …. 19.6, 19.69, 19.80 Edwards v Noble (1971) 125 CLR 296 …. 9.57, 11.96 — v Railway Executive [1952] AC 737 …. 9.9 — v Rawlins [1924] NZLR 333 …. 26.25 — v Sims Ky 791, 24 SW (2d) 619 (1929) …. 4.17 Egan v State Transport Authority (1982) 31 SASR 481 …. 5.94, 6.64, 15.19 Egger v Viscount Chelmsford [1965] 1 QB 248; [1964] 3 All ER 406 …. 23.56 Elders Trustee & Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193 …. 19.106 Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] QB 585 …. 22.86 Electrochrome Ltd v Welsh Plastics Ltd [1968] 2 All ER 205 …. 19.1 Ellis v Home Office [1953] 2 All ER 149 …. 9.83, 9.85

— v Loftus Iron Co (1874) LR 10 CP 10 …. 26.25 — v McGowan (NSWSC, Master Allen, 15 November 1977, unreported) …. 24.79 — v Wallsend District Hospital (1989) 17 NSWLR 553 …. 9.101, 20.69 Elston v Dore (1982) 149 CLR 480 …. 25.1, 25.2, 25.38 Elvin & Powell Ltd v Plummer Roddis Ltd (1933) 50 TLR 158 …. 5.46 Elwes v Brigg Gas Co (1886) 33 Ch D 562 …. 4.17, 4.18, 5.15, 5.37 Emcorp Pty Ltd v Australian Broadcasting Corporation [1988] 2 Qd R 169 …. 7.22 Emerald Construction Co Ltd v Lowthian [1966] 1 All ER 1013; [1966] 1 WLR 691 …. 24.44, 24.47 Emmett v Manning [1985] 40 SASR 297 …. 9.61 Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 …. 11.44 Enever v R (1906) 3 CLR 969 …. 20.20 Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807 …. 4.2 Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22 …. 12.88 Erickson v Bagley [2015] VSCA 220 …. 11.38 Erlich v Leifer [2015] VSC 499 …. 20.45, 20.46 Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 …. 24.7, 24.15 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241; 142 ALR 750 …. 1.57, 9.94, 19.29, 19.34, 19.43, 19.45 Essendon Corporation v McSweeney (1914) 17 CLR 524 …. 25.84 Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 …. 4.15, 25.15, 25.63, 25.90, 25.99 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 …. 22.39, 23.101 — v Australian Consolidated Press Ltd (NSWSC, Hunt J, 11 March 1993, unreported) …. 23.101 Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36 …. 4.57, 4.58, 15.46, 25.73, 25.74 — v London Hospital and Medical College [1981] 1 All ER 715 …. 7.13 — v Port of Brisbane Authority (1992) Aust Torts Reports ¶81-181 …. 13.105 — v Walton (1867) LR 2 CP 615 …. 17.26 Evatt v Mutual Life & Citizens Assurance Co Ltd (1967) 69 SR (NSW) 50 …. 19.15 Everett v Ribbands [1952] 2 QB 198 …. 7.15 Everitt v Martin [1953] NZLR 298 …. 5.28 Exchange Hotel v Murphy [1947] SASR 112 …. 2.7, 3.16 Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147 …. 24.49, 24.55 F F v R (1983) 33 SASR 189 …. 11.77 F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 …. 3.9, 3.11, 6.13, 6.44

Fabbri v Morris [1947] 1 All ER 315 …. 25.89 Fabian v Welsh [1999] QCA 365 …. 26.35 Fabre v Arenales (1992) 27 NSWLR 437 …. 13.74 Facton Ltd v Rifai Fashions Pty Ltd (2012) 287 ALR 199 …. 24.32 Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 …. 3.32 FAI General Insurance Co Ltd v A R Griffiths & Sons Pty Ltd (1997) 71 ALJR 651 …. 20.87, 21.27 Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1 …. 23.132 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32; [2002] 3 All ER 305; [2002] 3 WLR 89 …. 8.20, 12.42, 12.46, 12.47, 12.48 Fairfax Media Publications Pty Ltd v Bateman (2015) 321 ALR 726 …. 22.9 — v Pedavoli (2015) 326 ALR 737 …. 22.72 Falcke v Herald & Weekly Times Ltd [1925] VLR 56 …. 23.88, 23.90 Fallas v Mourlas (2006) 65 NSWLR 418 …. 13.54, 13.68, 13.69, 13.70 Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports ¶81-831 …. 13.70 Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236 …. 10.116 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209 …. 3.44 Farley & Lewers Ltd v Attorney-General (NSW) (1962) 63 SR (NSW) 814 …. 25.68 Farquhar v Bottom [1980] 2 NSWLR 380 …. 22.31 Farquharson Bros & Co v C King & Co [1902] AC 325 …. 6.63 Farrington v Thomson [1959] VR 286 …. 18.51, 18.56, 18.60 Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 …. 24.66, 24.68, 24.69, 24.71, 24.74 Fatur v IC Formwork Services Pty Ltd (2000) 155 FLR 70 …. 11.78 Faulkner v Keffalinos (1971) 45 ALJR 80 …. 12.52, 12.88 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 …. 22.31, 22.55, 22.56 Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 …. 23.13 Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; 38 ALR 424 …. 15.40 Feldman v A Practitioner (1978) 18 SASR 238 …. 9.111 Felton v Johnson (2000) Aust Torts Reports ¶81-559 …. 19.5, 19.79 Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486 …. 25.15, 25.18, 25.32, 25.53 Fenty v Arcadia Group Brands Ltd t/as Topshop [2015] All ER 157; [2015] 1 WLR 3291 …. 24.26 Ferguson v Eakin t/as Price Brent [1997] NSWCA 106 …. 5.3 — v State of Queensland [2007] QSC 322 …. 3.56, 3.61 Fernando v Commonwealth (2010) 276 ALR 586 …. 18.58 Fernwood Fitness Centre Pty Ltd v Today’s Woman Health and Fitness Pty Ltd (1998) 41 IPR 78 …. 24.24

Ffrench v Sestili (2006) 98 SASR 28 …. 20.39 Fick v Groves [2010] QSC 89 …. 19.28, 19.38, 19.49, 19.54, 19.57 Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 …. 24.43, 24.45, 24.48 Filburn v People’s Palace & Aquarium Co Ltd (1890) 25 QBD 258 …. 26.4, 26.10 Finch v Rogers [2004] NSWSC 39 …. 12.60 Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368 …. 4.51, 4.52, 5.4 Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427; 21 ALR 375 …. 15.145 Fischer v Stuart (1979) 25 ALR 336 …. 26.10 Fish Steam Laundry Pty Ltd v Col Johnson Electrics Pty Ltd [1992] 2 Qd R 585 …. 4.55, 25.73, 25.74 Fitter v Veal (1701) 12 Mod 542; 88 ER 1506 …. 15.33 Fitzgerald v Firbank [1897] 2 Ch 96 …. 4.12 — v Hill (2008) 51 MVR 55 …. 9.73 — v Penn (1954) 91 CLR 268 …. 11.90, 11.98, 13.19 Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 …. 11.102, 11.103, 11.104 Fitzwilliam v Beckman [1978] Qd R 398 …. 3.85, 15.11 Flamingo Park Pty Ltd v Dolly Dolly Creations Pty Ltd (1986) 65 ALR 500; 6 IPR 431 …. 24.32 Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52 …. 22.96 Flemming v Gibson (2001) 34 MVR 40 …. 14.32 Flight Centre Ltd v Louw (2010) 78 NSWLR 656 …. 10.46 Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 …. 11.71, 13.81 Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134 …. 18.47 — v — (2001) 109 FCR 280 …. 7.18 Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports ¶81-244 …. 5.48, 5.49, 5.63, 5.90 Fontin v Katapodis (1962) 108 CLR 177 …. 3.44, 6.30, 6.31, 6.35, 6.60 Forde v Skinner (1830) 4 C & P 239; 172 ER 687 …. 3.5 Forrest v Chlanda [2012] NTSC 14 …. 23.48, 23.124 Forrester v Tyrell (1893) 9 TLR 257 …. 22.17 Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 …. 15.2 — v Lawson (1826) 3 Bing 452 …. 22.86 Fortron Automotive Treatments Pty Ltd v Jones (No 3) [2011] FMCA 467 …. 24.51 Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R 429 …. 10.86, 10.87, 10.88, 10.89, 10.93, 10.95 Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153 …. 5.20, 5.40 Fournier v Canadian National Railway Co [1927] AC 167 …. 15.36

Fowler v Hollins (1872) LR 7 QB 616 …. 5.51 — v Lanning [1959] 1 QB 426 …. 2.6, 2.22 Fox v Hack [1984] 1 Qd R 391 …. 11.78, 11.79 — v Wood (1981) 148 CLR 438 …. 15.137 Francis v Cockrell; Maclennan v Segar [1917] 2 KB 325 …. 9.9 — v Lewis [2003] NSWCA 152 …. 11.78 — v Whatson [1994] 2 Qd R 584 …. 19.63 Fraser v Booth (1949) 50 SR (NSW) 113 …. 25.52 French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214 …. 9.64, 12.41, 12.60, 16.33, 16.44 — v Triple M Melbourne Pty Ltd [2008] VSC 553 …. 23.88 Freudhofer v Poledano [1972] VR 287 …. 15.121 Froom v Butcher [1976] QB 286 …. 13.20 Frost v Warner (2002) 209 CLR 509; 186 ALR 1 …. 20.58 Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 …. 10.25 Fuller v New South Wales Department of School Education and Training (2004) Aust Torts Reports ¶81-756 …. 9.41 — v Wilson (1842) 3 QB 58 …. 19.65 G Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 …. 5.90, 5.94 Gagner Pty Ltd t/as Indochine Café v Canturi Corporation Pty Ltd (2009) 262 ALR 69 …. 15.47 Gala v Preston (1991) 172 CLR 243; 100 ALR 29 …. 10.13, 13.74, 25.101 Galashiels Gas Co Ltd v O’Donnell [1949] AC 275 …. 18.29 Galea v Gillingham [1987] 2 Qd R 365 …. 26.30 Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 …. 15.10 — v — (2013) 85 NSWLR 514 …. 25.53 Gallagher v McClintock [2014] QCA 224 …. 4.29 Gamser v The Nominal Defendant (1977) 136 CLR 145 …. 15.151 Gannon v Gray [1973] Qd R 411 …. 15.117 Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 …. 23.85, 23.86 Garratt v Dailey (1955) 279 P 2d 1091 …. 3.5 Gartner v Kidman (1962) 108 CLR 12 …. 25.23, 25.46 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; 63 ALR 600 …. 19.61, 19.84, 19.111 Gatward v Alley (1940) 40 SR NSW 174 …. 5.5 Gaunt v Fynney (1872) LR 8 Ch App 8 …. 25.52

Gedbury Pty Ltd v Michael David Kennedy Autos [1986] 1 Qd R 103 …. 5.98 Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 …. 6.50, 25.56 General and Finance Facilities Ltd v Cook’s Cars (Romford) Ltd [1963] 1 WLR 644 …. 5.90, 5.91, 5.100, 5.101 General Constructions Pty Ltd v Peterson (1962) 108 CLR 251 …. 18.13 General Engineering Ltd v Kingston and St Andrew Corporation [1989] 1 WLR 69 …. 20.38 Gent-Diver v Neville [1953] St R Qd 1 …. 13.20, 13.65 George v Webb [2011] NSWSC 1608 …. 21.42 Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534 …. 4.9 Georgieff v Athans (1981) 26 SASR 412 …. 9.92 Gerard v Hope [1965] Tas SR 15 …. 3.69, 6.55 Gershman v Manitoba Vegetable Producers’ Marketing Board (1977) 69 DLR (3d) 114 …. 24.42 Gessey v Morrison (1995) 23 MVR 103 …. 15.86 Gett v Tabet (2009) 254 ALR 504 …. 10.150 Geyer v Downs (1977) 138 CLR 91; 17 ALR 408 …. 9.71, 9.72 Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417 …. 9.111, 9.112, 9.114, 19.17 Gianni Versace SpA v Monte (2002) 119 FCR 349 …. 22.99 Gibbs v Rea [1998] AC 786 …. 7.16 Gifford v Dent (1926) 25 WN 33 …. 4.6 — v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100 …. 10.28, 10.30, 10.44, 10.47, 10.54, 10.56, 10.63, 10.65, 10.75, 12.17, 15.100 Gilchrist, Watt & Cunningham v Logan [1927] St R Qd 185 …. 6.47 Giller v Procopets (2008) 24 VR 1 …. 7.4, 7.6, 7.26 Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 …. 6.13, 6.19, 6.22 Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 …. 18.22 Giumelli v Johnston (1991) Aust Torts Reports ¶81-085 …. 6.7 Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191 …. 11.63, 13.94 Glanville v Sutton [1928] 1 KB 571 …. 26.6, 26.8 Glasgow Corporation v Muir [1943] AC 448 …. 11.4 Glass v Hollander (1935) 35 SR (NSW) 304 …. 5.44 Glenmont Investments Pty Ltd v O’Loughlin (2000) 79 SASR 185 …. 15.49 Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82; 55 ALR 25 …. 19.106, 24.36 Goddard Elliott (a firm) v Fritsch [2012] VSC 87 …. 11.15 Godhard v James Inglis & Co Ltd (1904) 2 CLR 78 …. 22.74 Goffin v Donnelly (1881) 6 QBD 307 …. 23.20

Gold v Essex County Council [1942] 2 KB 293 …. 20.18 Goldman v Hargrave (1966) 115 CLR 458; [1967] 1 AC 645 …. 11.61, 25.35, 25.52, 25.93 Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 …. 23.83 Google Inc v Australian Competition and Consumer Commission (2013) 294 ALR 404 …. 19.98 Gordon v Tamworth Jockey Club Inc (2003) Aust Torts Reports ¶81-698 …. 9.25 Gorringe v Transport Commission (Tas) (1950) 80 CLR 357 …. 10.146 Gorris v Scott (1874) LR 9 Ex 125 …. 18.24 Goss v Nicholas [1960] Tas SR 133 …. 3.69, 6.33 Gottlieb v Gleiser [1958] 1 QB 267n …. 17.13 Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527 …. 15.146, 19.68, 19.81, 19.83 Government Insurance Office (NSW) v Best (1993) Aust Torts Reports ¶81-210 …. 11.104, 12.53 — v Mackie (1990) Aust Torts Reports ¶81-053 …. 15.66 — v Rosniak (1992) 27 NSWLR 665 …. 15.131 — v Sharah (1993) 19 MVR 279 …. 11.82 Govic v Boral Australian Gypsum Ltd [2015] VSCA 130 …. 18.19 Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321 …. 15.73, 15.94 Graff Bros Estates Ltd v Rimrose Brook Joint Sewerage Board [1953] 2 QB 318 …. 25.18 Graham v Baker (1961) 106 CLR 340 …. 15.54, 15.68, 15.135 — v Morris [1974] Qd R 1 …. 4.20 — v Royal National Agricultural and Industrial Association of Queensland [1989] 1 Qd R 624 …. 26.38 — v Voigt (1989) Aust Torts Reports ¶80-296 …. 5.87 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337 …. 9.123, 10.15, 10.22, 10.28, 10.39, 10.137, 10.139, 11.65 Grainger v Hill (1838) 4 Bing NC 212; 132 ER 160 …. 18.42, 18.45 Gran Gelato v Richcliff (Group) Ltd [1992] 2 WLR 867 …. 9.104 Grange Motors (Cwmbran) Ltd v Spencer [1969] 1 WLR 53 …. 19.1, 19.4 Grant v Australian Knitting Mills Ltd [1936] AC 85 …. 8.11, 9.125 — v YYH Holdings Pty Ltd [2012] NSWCA 360 …. 5.63 Grant Pastoral Co Pty Ltd v Thorpe’s Ltd (1953) 54 SR (NSW) 129 …. 25.23 Gray v Jones [1939] 1 All ER 798 …. 22.16 — v Motor Accident Commission (1998) 196 CLR 1; 158 ALR 485 …. 1.36, 2.10, 15.20 Gray by her tutor Gray v Richards (2014) 253 CLR 660; 313 ALR 579 …. 15.131 Great Lakes Shire Council v Dederer; Roads and Traffic Authority of New South Wales v Dederer (2006) Aust Torts Reports ¶81-860 …. 11.52, 11.59 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 …. 22.36

Green v Button (1835) 2 CM & R 707 …. 24.38 Gregg v Scott [2005] 2 WLR 268 …. 12.20 Grego v Mt Isa Mines Ltd [1972] QWN 33 …. 15.135 Gregory v New South Wales [2009] NSWSC 559 …. 9.71 Grehan v Kann [1948] QWN 40 …. 3.37, 3.38 Greig v Greig [1966] VR 376; [1966] ALR 989 …. 4.61 — v Insole [1978] 3 All ER 449; [1978] 1 WLR 302 …. 24.38, 24.39, 24.41, 24.50, 24.55 Gribben v Woree Caravan Park and Motels [1970] Qd R 420 …. 9.9 Griffiths v Benn (1911) 27 TLR 346 …. 22.86 — v Doolan [1959] Qd R 30 …. 13.19 — v Haines [1984] 3 NSWLR 653 …. 20.20 — v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387 …. 15.89, 15.90, 15.93, 15.101, 15.102, 15.104, 16.29 Grima v RFI (Aust) Pty Ltd [2015] NSWSC 332 …. 21.24 Grincelis v House (2000) 201 CLR 321; 173 ALR 564 …. 15.146 Groom v Crocker [1939] 1 KB 194 …. 1.29, 9.91 Gross v Lewis Hillman Ltd [1970] Ch 445 …. 19.78 Grosse v Purvis (2003) Aust Torts Reports ¶81-706 …. 7.25, 7.26, 7.27 Grosvenor Hotel Company v Hamilton [1894] 2 QB 836 …. 25.71 Groves v Commonwealth (1982) 150 CLR 113; 40 ALR 193 …. 20.19 — v Lord Wimborne [1898] 2 QB 402 …. 9.48, 18.2, 18.13, 18.17 — v United Pacific Transport Pty Ltd [1965] Qd R 62 …. 15.150 Grubb v Bristol United Press Ltd [1963] 1 QB 309 …. 22.58 Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641 …. 4.18 Gugiatti v Servite College Council Inc [2004] WASCA 5 …. 9.72 Guildford Rugby League Football & Recreational Club Ltd v Coad (2001) Aust Torts Reports ¶81-623 …. 11.42 Guise v Kouvelis (1947) 74 CLR 102 …. 23.36, 23.40 Gunning v Fellows (1997) 25 MVR 97 …. 11.31 Gutkin v Gutkin [1983] 2 Qd R 764 …. 15.94 Gwinnett v Day [2012] SASC 43 …. 5.52 GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376 …. 24.51 H H v New South Wales [2009] NSWDC 193 …. 9.71 — v Royal Alexandra Hospital for Children (1990) Aust Torts Reports ¶81-000 …. 11.17, 11.56 Haber v Walker [1963] VR 339 …. 12.74, 12.76, 16.12, 16.13

Habib v Commonwealth (No 2) (2009) 175 FCR 350; 254 ALR 250 …. 24.75, 24.77 — v Nationwide Pty Ltd (No 2) [2010] NSWCA 291 …. 15.18 Hackshaw v Shaw (1984) 155 CLR 614; 56 ALR 417 …. 2.9, 2.22, 3.18, 13.76 Haddon v Lynch [1911] VLR 5 …. 25.17 — v — [1911] VLR 230 …. 25.45 Hadzigeorgiou v O’Sullivan [1983] 1 Qd R 55 …. 15.144 Hahn v Conley (1971) 126 CLR 276 …. 1.24, 9.78 Haines v Bendall (1991) 172 CLR 60; 99 ALR 385 …. 15.25, 15.26 Hale v Brooklands Auto Racing Club [1933] 1 KB 205 …. 13.66 — v Cramer (2003) 40 MVR 477 …. 15.135 — v Foneca [1985] WAR 309 …. 3.31 — v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 …. 22.68 — v Victorian Railway Commissioner (1953) 87 CLR 529 …. 11.80 — v WorkCover Queensland [2015] 2 Qd R 88 …. 16.49 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 …. 24.89, 24.96 Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331 …. 4.2, 4.27, 4.28, 6.6, 6.9 Hallowell v Nominal Defendant (Qld) [1983] 2 Qd R 266 …. 13.20, 13.28 Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683 …. 25.15, 25.33, 25.43, 25.45 Hamcor Pty Ltd v Queensland [2014] QSC 224 …. 18.33 — v — [2015] QCA 183 …. 18.33 Hamilton v Long [1905] 2 IR 552 …. 17.25 — v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 …. 1.43, 9.32 Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171 …. 25.56 Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285 …. 4.7 Hampton Court Ltd v Crooks (1957) 97 CLR 367 …. 11.106 Hancock v Nominal Defendant [2002] 1 Qd R 578 …. 10.55, 10.56, 10.62 — v Queensland [2002] QSC 027 …. 11.21 Handcock v Baker (1800) 2 Bos & P 260; 126 ER 1270 …. 3.70 Hanlon v Hanlon [2006] TASSC 1 …. 16.33, 16.34, 16.37 Hannah Louis Group Pty Ltd t/as Maxum Transport v Maxum Taxi Trucks Pty Ltd [2011] NSWSC 291 …. 24.23 Hanrahan v Ainsworth (1990) 22 NSWLR 73 …. 18.46, 18.50 Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14 …. 4.58, 15.46 Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1 …. 24.9, 24.10, 24.19, 24.23, 24.35

Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 …. 15.4 Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 …. 22.39 Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192 …. 23.5, 23.33, 23.43, 23.44, 23.45, 23.46 Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403 …. 10.94, 10.105, 10.106, 24.5 Hardie (Qld) Employees Credit Union Ltd v Hall Chadwick & Co [1980] Qd R 362 …. 9.92 Harding v Lithgow Municipal Council (1937) 57 CLR 186 …. 16.10 Hardware Services Pty Ltd v Primac Association Ltd [1988] 1 Qd R 393 …. 9.104 Hardy v Ryle (1829) 9 B & C 603; 109 ER 224 …. 14.13 Hargrave v Goldman (1963) 110 CLR 40 …. 25.2, 25.27, 25.52, 25.93 Harmer v Hare (2011) 59 MVR 1 …. 13.26 — v — [2012] HCASL 21 …. 13.26 Harper v G N Haden & Sons Ltd [1933] Ch 298 …. 25.88, 25.89 Harris v Bulldogs Rugby League Club Ltd (2006) Aust Torts Reports ¶81-838 …. 11.68 — v Carnegie’s Pty Ltd [1917] VLR 95 …. 25.33 Harrison v Bush (1855) 5 E & B 344; 119 ER 509 …. 23.40 — v Melhem (2008) 72 NSWLR 380 …. 15.100 — v Thornborough (1713) 10 Mod 196; 88 ER 691 …. 22.52 Harriton v Stephens (2004) 59 NSWLR 694 …. 8.5, 12.5 — v — (2006) 226 CLR 52; 226 ALR 391 …. 1.10, 1.11, 1.16, 1.25, 1.35, 9.77, 9.99, 10.2, 10.5, 10.15, 10.28, 12.1, 12.7, 12.11, 12.12 Harvey v PD (2004) 59 NSWLR 639 …. 9.100, 12.86 — v Shire of St Arnaud (1879) 5 VLR 315 …. 25.80 Haseldine v Daw [1941] 2 KB 343 …. 9.123, 11.20 Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434 …. 3.72 Hasselblad (GB) Ltd v Orbinson [1985] QB 475 …. 23.25 Havyn Pty Ltd v Webster (2005) 12 BPR 22,837 …. 19.106 Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 …. 23.81 Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69 …. 1.29, 9.91, 9.94, 9.107, 10.99, 14.23, 14.26 — v Coulsdon and Purley Urban District Council [1954] 1 QB 319 …. 9.9 Hay or Bourhill v Young [1943] AC 92; [1942] 2 All ER 396 …. 9.62, 10.8, 10.41, 12.1 Haynes v Harwood [1935] 1 KB 146 …. 12.1, 12.78, 13.98 Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 …. 3.5 Haythorpe v Rae [1972] VR 633 …. 5.100 Hayward v Thompson [1982] 1 QB 47 …. 22.70, 22.72

Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 …. 4.26, 5.42, 5.76, 5.89 Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555 …. 22.85 Heather, Re; Director-General, Department of Community Services v M [2003] NSWSC 532 …. 6.20 Heaven v Pender (1883) 11 QBD 503 …. 8.10, 9.123 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 …. 1.43, 10.79, 10.81, 19.10, 19.11, 19.12, 19.13, 19.15, 19.19, 19.21, 19.44, 19.46, 19.51, 19.79 Hegarty v Shine (1878) 14 Cox CC 124 …. 6.10 Hemmings v Stokes Poges Golf Club [1920] 1 KB 720 …. 4.49 Henderson v Henry E Jenkins & Sons [1970] AC 282 …. 11.111 — v Radio Corporation Pty Ltd [1969] RPC 218 …. 24.11, 24.13, 24.25, 24.33 Henly v Mayor of Lyme (1828) 5 Bing 91; 130 ER 995 …. 18.60 Henry v Thompson [1989] 2 Qd R 412 …. 3.79, 3.84 — v TVW Enterprises Ltd (1990) 3 WAR 474 …. 22.46, 22.66 Henry Berry & Co Pty Ltd v Rushton [1937] St R Qd 109 …. 5.16, 6.45 Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 …. 13.76 Henville v Walker (2001) 206 CLR 459; 182 ALR 37; [2001] HCA 52 …. 12.58, 19.57, 19.112 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 …. 22.88 Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 …. 23.118 — v Popovic (2003) 9 VR 1 …. 23.5 Hercules v Phease [1994] 2 VR 411 …. 23.25, 23.28 Herd v Weardale Steel Coke and Coal Co Ltd [1915] AC 67 …. 3.63 Hewitt v Bonvin [1940] 1 KB 188 …. 20.11, 20.54 Heydon v NRMA Ltd (2000) 51 NSWLR 1 …. 9.92, 9.103, 9.107, 11.14 Heywood v Miller [2005] ACTSC 4 …. 9.63 Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 …. 26.7, 26.14 Hill v Cooke [1958] SR (NSW) 49 …. 15.14 — v Higgins [2012] NSWSC 270 …. 4.52 — v Reglon Pty Ltd [2007] NSWCA 295 …. 5.11, 5.44 — v Richards [2011] NSWCA 291 …. 11.68 Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 …. 9.94, 9.106, 10.14, 10.21, 10.22, 10.28, 10.98, 10.99, 10.100, 10.102, 10.103, 10.104, 10.105, 10.106, 19.18, 19.45 Hillesden Securities Ltd v Ryjack Ltd [1983] 1 WLR 959 …. 5.90 Hiort v Bott (1847) LR 9 Ex 86 …. 5.39, 5.46 — v London & North Western Railway Co (1879) 4 Ex D 188 …. 5.39 Hird v Gibson [1974] Qd R 14 …. 12.68, 17.11

Hirst v Nominal Defendant [2005] 2 Qd R 133 …. 13.18 Hisgrove v Hoffman (1981) 29 SASR 1 …. 15.40 Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 …. 15.47 Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 …. 5.3, 24.10 Hobbelen v Nunn [1965] Qd R 105 …. 15.136 Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 …. 23.135 — v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 …. 5.9, 11.111 — v Tinling [1929] 1 KB 1 …. 23.134 Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 …. 22.50, 23.48 Hocking v Bell (1947) 75 CLR 125 …. 11.91, 11.93 Hodges v Frost (1984) 53 ALR 373 …. 15.152 Hoffman v Boland (by her tutor Boland) [2013] NSWCA 158 …. 9.77 Hogan v A G Wright Pty Ltd [1963] Tas SR 44 …. 4.59 — v Koala Dundee Pty Ltd [1988] 83 ALR 187 …. 24.33 Hogan (an infant by his next friend Williams) v Gill (1992) Aust Torts Reports ¶81-182 …. 2.17, 3.3 Holding v Jennings [1979] VR 289 …. 23.18, 23.20 Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71; [1972] 1 All ER 399 …. 5.9 Hollins v Fowler (1875) LR 7 HL 757 …. 5.41, 5.53, 5.55 Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 …. 20.5, 20.8, 20.9, 20.14, 20.16, 20.53 Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 …. 25.52, 25.98 Holmes v Jones (1907) 4 CLR 1692 …. 19.86 — v Mather (1875) LR 10 Ex 261 …. 2.3, 13.65 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 …. 9.89, 10.9, 10.33 Honey v Australian Airlines Ltd (1990) 18 IPR 185 …. 24.26 Hookey v Peterno (2009) 22 VR 362 …. 11.71 Hopper v Reeve (1817) 7 Taunt 698; 129 ER 278 …. 3.5 Horan v Ferguson [1995] 2 Qd R 490 …. 3.42 Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153 …. 2.24, 6.60 Hornsby Building Information Centre Pty Ltd v Building Information Centre Ltd (1978) 140 CLR 216 …. 24.100 Horsfall v Thomas (1862) 1 H & C 90; 158 ER 813 …. 19.4, 19.80 Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 14,360 …. 5.5 Horton v Byrne (1956) 30 ALJ 583 …. 16.35 Hosking v Runting [2005] 1 NZLR 1 …. 7.31 Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157 …. 15.6, 24.49

Host v Bassett (1983) 48 ALR 404 …. 11.99 Hotson v East Berkshire Area Health Authority [1987] AC 750 …. 12.20, 12.45 — v Fitzgerald [1985] 1 WLR 1036 …. 9.95 Hough v London Express Newspaper Ltd [1940] 2 KB 507 …. 22.57 Houghland v R R Low (Luxury Coaches) Ltd [1962] 2 All ER 159 …. 5.69 House v Forestry Tasmania (1995) Aust Torts Reports ¶81-331 …. 11.59 Howard v Jarvis (1958) 98 CLR 177 …. 9.83, 9.85, 9.86 — v Wing [2000] TASSC 147 …. 6.30 Howard Marine and Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd [1978] QB 574 …. 19.35 Howden v ‘Truth’ & ‘Sportsman’ Ltd (1937) 58 CLR 416; [1938] ALR 208 …. 23.5 Howe v Lees (1910) 11 CLR 361 …. 23.41, 23.42 Hoyts Pty Ltd v Burns (2003) 201 ALR 470; 77 ALJR 1934 …. 9.18, 9.20, 12.55 Hribar v Wells (1995) Aust Torts Reports ¶81-345 …. 9.96 Hudson v Nicholson (1839) 5 M & W 437; 151 ER 185 …. 4.47 Huet v Lawrence [1948] St R Qd 168 …. 5.72 Hughes v Lord Advocate [1963] AC 837 …. 12.64 — v SDN Children’s Services Inc [2002] NSWCA 11 …. 9.43 — v South Australia (1982) 29 SASR 161 …. 9.43 — v Tucaby Engineering Pty Ltd [2011] QSC 256 …. 13.15 Huljich v Hall [1973] 2 NZLR 279 …. 24.77 Humphries v TWT Ltd (1993) 120 ALR 693 …. 23.118, 23.122 Hungerfords v Walker (1989) 171 CLR 125; 84 ALR 119 …. 15.51 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; 296 ALR 3 …. 21.36 Hunter v Canary Wharf Ltd [1996] 1 All ER 482; [1996] 2 WLR 348 …. 1.11, 1.12 — v — [1997] AC 655 …. 25.7, 25.31, 25.38, 25.44, 25.72 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 …. 3.14, 6.22, 6.25, 6.26 Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon (2014) 253 CLR 270; 314 ALR 505 …. 10.28, 10.71 Hunter Area Health Service v Presland (2005) 63 NSWLR 22 …. 12.84 Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41 …. 5.31, 5.76, 5.88 — v CG Maloney Pty Ltd (1989) 18 NSWLR 420 …. 5.3 Husher v Husher (1999) 197 CLR 138; 165 ALR 384 …. 15.70 Hutchins v Maughan [1947] VLR 131 …. 2.2, 2.13, 5.18 Hutchinson v York, Newcastle & Berwick Railway Company (1850) 5 Exch 343; 155 ER 150 …. 9.28 Huth v Huth [1915] 3 KB 32 …. 22.76

Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelsmen Agency Pty Ltd (2002) 18 BCL 122; [2001] NSWCA 313 …. 15.48 Hyett v Great Western Railway Co [1948] 1 KB 345 …. 12.78 Hyland v Campbell (1995) Aust Torts Reports ¶81-352 …. 9.108 I I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; 192 ALR 1 …. 19.111, 19.112 IBL Ltd v Coussens [1991] 2 All ER 133 …. 5.86 Illawarra Newspapers v Butler [1981] 2 NSWLR 502 …. 23.80 Illustrated Newspapers Ltd v Publicity Services (London) Ltd [1938] 1 Ch 414 …. 24.22 Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 …. 1.57, 9.57, 9.60, 11.6, 11.23, 11.24, 11.25, 11.26, 13.50, 13.51, 13.55, 13.59, 13.65 Imperial Chemical Industries Ltd v Shatwell [1965] AC 656 …. 13.57, 18.38 Independent Oil Industries Ltd v Shell Co of Australia Ltd (1937) 37 SR (NSW) 394 …. 24.43 Indermaur v Dames (1866) LR 1 CP 274 …. 9.9 Inland Revenue Commissioners v Goldblatt [1972] Ch 498 …. 18.18 Innes v Wylie (1844) 1 Car & Kir 257; 174 ER 800 …. 3.6 Insurance Commissioner v Joyce (1948) 77 CLR 39 …. 9.60, 11.26, 13.61, 13.62 Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26 …. 19.45 Inverell Municipal Council v Pennington (1993) Aust Torts Reports ¶81-234 …. 11.43 Irvin v Whitrod (No 2) [1978] Qd R 271 …. 20.20 Irvine v Talksport Ltd [2002] 2 All ER 414; 1 WLR 2355 …. 24.13 Irwin v Salvation Army (NSW) Property Trust [2007] NSWDC 266 …. 18.21 J J & K Clothing Pty Ltd v Mahmoud [2004] NSWCA 207 …. 12.17 J T Stratford & Sons Ltd v Lindley [1965] AC 269; [1964] 3 All ER 102 …. 24.44, 24.53, 24.75, 24.80 Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952 …. 13.70 Jack Brabham Engines Ltd v Beare [2010] FCA 872 …. 24.75 Jackson v Australian Consolidated Press Ltd [1966] 2 NSWR 775 …. 23.56 — v Harrison (1978) 138 CLR 438; 19 ALR 129 …. 13.73, 25.101 — v Jackson (1970) 2 NSWR 454 …. 15.117 — v Normanby Brick Co (1899) 1 Ch 438 …. 25.70 — v Watson & Sons [1909] 2 KB 193 …. 16.1 Jacobi v Griffiths (1999) 174 DLR (4th) 71 …. 20.41

Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 …. 1.43, 10.12, 10.13, 10.42, 10.44, 10.48, 10.49, 10.52, 10.57, 10.61 James v ANZ Banking Group Ltd (1986) 64 ALR 347 …. 19.108 — v Commonwealth (1939) 62 CLR 339 …. 24.42 — v Oxley (1939) 61 CLR 433 …. 5.47 — v Wellington City [1972] NZLR 978 …. 26.10 James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268 …. 21.1, 21.17, 21.18, 21.20 James Thane Pty Ltd v Conrad International Hotels Corp [1999] QCA 516 …. 9.42 Jan De Nul (UK) Ltd v AXA Royale Belge SA (formerly NV Royale Belge) [2000] 2 Lloyd’s Rep 700 …. 25.85, 25.86 Jandson Pty Ltd v Welsh [2008] NSWCA 317 …. 11.51 Janvier v Sweeney [1919] 2 KB 316 …. 7.2 Jarvis v Scrase [2000] 2 Qd R 92 …. 9.73 Jazabas Pty Ltd v City of Botany Bay Council (2000) ANZ ConvR 616 …. 19.58 Jeffrey v Honig [1999] VSC 337 …. 25.6, 25.24 Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 …. 23.118 Jekos Holdings Pty Ltd v Australian Horticultural Finance Pty Ltd [1994] 2 Qd R 515 …. 19.116 Jellie v Commonwealth [1959] VR 72 …. 11.66 Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; 277 ALR 257 …. 25.19 Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226 …. 20.57 Joblins v Associated Dairies Ltd [1982] AC 794 …. 12.52 Joel v Morison (1834) 6 Car & P 501; 172 ER 1338 …. 20.30 John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157 …. 5.60, 5.62, 5.68, 5.69 John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624 …. 22.42 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 …. 23.15, 23.85 — v Gacic (2007) 230 CLR 291; 235 ALR 402 …. 22.45, 22.63 — v Obeid (2005) 64 NSWLR 485 …. 22.88 — v Rivkin (2003) 201 ALR 77 …. 22.36, 22.63 — v Zunter [2006] NSWCA 227 …. 23.14 John Lewis Co Ltd v Tims [1952] AC 676 …. 3.65 John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656 …. 19.4, 19.74 John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218; 36 ALR 466 …. 8.17, 18.35 Johnson v Buchanan [2012] VSC 195 …. 26.23

— v Commonwealth (1927) 27 SR (NSW) 133 …. 7.2 — v Deep Level Gold Mines of Charters Towers Ltd [1903] St R Qd 190 …. 16.10 — v Kent (1975) 132 CLR 164; 5 ALR 201 …. 25.89 — v Perez (1988) 166 CLR 351; 82 ALR 587 …. 15.25 Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports ¶81-692 …. 1.57, 10.28, 10.90, 10.93, 10.96 Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137 …. 9.23, 20.77 — v Dapto Leagues Club Ltd [2008] NSWCA 32 …. 13.36 — v Department of Employment [1989] QB 1 …. 6.51 — v Dumbrell [1981] VR 199 …. 19.75 — v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 …. 23.60, 23.62 — v Jones [1916] 2 AC 481 …. 22.16 — v — [1982] Tas R 282 …. 15.94 — v Linnett [1984] 1 Qd R 570 …. 26.5, 26.15, 26.24 — v Manchester Corporation [1952] 2 QB 852 …. 11.21 — v Schiffmann (1971) 124 CLR 303 …. 16.38 — v Shire of Perth [1971] WAR 56 …. 4.55, 4.58, 15.46, 25.74 — v Skelton [1963] 3 All ER 952; [1963] 1 WLR 1362 …. 22.11, 22.52, 22.56, 22.61 — v Stones [1999] 1 WLR 1739 …. 4.42 — v Sutton (2004) 61 NSWLR 614 …. 23.97 — v Tsige (2012) ONCA 32 …. 5.31 — v Williams (1843) 11 M & W 176; 152 ER 764 …. 25.68 — v Wright [1991] 3 All ER 88 …. 10.41 — v Wrotham Park Settled Estates [1980] AC 74; [1979] 1 All ER 286; [1979] 2 WLR 132 …. 16.45 Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 QB 275 …. 17.2, 24.55 Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 …. 11.26, 13.5, 13.8, 13.12, 13.24, 13.43, 13.47, 13.62 Joyce v Motor Surveys Ltd [1948] Ch 252 …. 24.92 Jull v Wilson & Horton [1968] NZLR 88 …. 9.123 K Kakouris v Gibbs Burge & Co Pty Ltd (1970) 44 ALJR 384 …. 18.40 Kalo v Bristol Omnibus Co Ltd [1975] 1 WLR 1054 …. 15.73 Kars v Kars (1996) 187 CLR 354; 141 ALR 37 …. 1.57, 15.61, 15.91, 15.95 Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181; 52 ALJR 189 …. 11.97 Kavanagh v Akhtar (1998) 45 NSWLR 588 …. 12.68

Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515 …. 9.108, 9.109 Kealley v Jones [1979] 1 NSWLR 723 …. 17.10 Keefe v Marks (1989) 16 NSWLR 713 …. 9.112 — v R T & D M Spring Pty Ltd [1985] 2 Qd R 363 …. 15.151 Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR ¶40-853 …. 19.116 Kelly v Alford [1988] 1 Qd R 404 …. 20.87 — v Bluestone Global Ltd (in liq) [2016] WASCA 90 …. 20.23, 20.24 Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334 …. 4.6, 4.20 Kemsley v Foot [1951] 2 KB 34 …. 23.78 — v — [1952] AC 345 …. 23.80 Kenny & Good Pty Ltd v MQICA (1992) Ltd (1999) 73 ALJR 901 …. 19.45 Kensington Starch & Maizena Co Ltd v Essendon and Flemington Corporation (1880) 6 VLR (L) 265 …. 25.6 Kent v Parer [1922] VLR 32 …. 5.5 — v Scattini [1961] WAR 74 …. 13.60 Kepa v Lessbrook Pty Ltd (in liq) [2012] QSC 311 …. 16.28 Keppel Bus Co Ltd v Sa’ad bin Ahmad [1974] 2 All ER 700; [1974] 1 WLR 1082 …. 20.35 Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 …. 25.70 Kestrel Holdings Pty Ltd (ACN 009 590 265) v APF Properties Pty Ltd (ACN 095 297 019) (2009) 260 ALR 418 …. 19.45 Key v Commissioner for Railways (1941) 64 CLR 619 …. 9.34 Khorasandjian v Bush [1993] QB 727 …. 1.12, 25.7, 25.96 Kiddle v City Business Properties Ltd [1942] 1 KB 269 …. 25.101 Kidman v Page [1959] Qd R 53 …. 25.42, 25.43 King v Coupland [1981] Qd R 121 …. 14.40 — v Crowe [1942] St R Qd 288 …. 3.37, 3.38 — v Philcox (2014) 320 ALR 398 …. 10.70 Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339 …. 22.44 Kirby v Leather [1965] 2 QB 367 …. 14.40 Kirk v Gregory (1876) 1 Ex D 55 …. 5.20, 5.73 — v Nominal Defendant [1984] 1 Qd R 592 …. 13.19 Kirkham v Boughey [1958] 2 QB 338 …. 17.19 Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281 …. 19.111 KLB v British Columbia (2003) 2 SCR 403 …. 20.17 Knapp v Railway Executive [1949] 2 All ER 508 …. 18.26

Knight v Beyond Properties Pty Ltd (2007) 71 IPR 466 …. 24.6 — v — (2007) 242 ALR 586 …. 24.17 — v R (1988) 35 A Crim R 314 …. 3.22 Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; 299 ALR 74 …. 24.10 Knupffer v London Express Newspaper Ltd [1944] AC 116 …. 22.64, 22.74 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; 214 ALR 355 …. 1.30, 9.7, 9.26, 9.35, 10.28, 10.30, 10.47, 10.48, 10.51, 10.73, 10.74 Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225 …. 9.47, 9.102, 20.62, 20.64, 20.65, 20.71, 20.72, 20.73, 20.78, 20.81 Kondracuik v Jackson Morgan & Sons (1988) 47 SASR 280 …. 18.40 Konskier v B Goodman Ltd [1928] 1 KB 421 …. 4.42, 4.46 Kooragang Investments Pty Ltd v Richardson & Wrench Ltd (1981) 36 ALR 142 …. 20.35 Koremans v Sweeney [1966] QWN 46 …. 15.136 Kostik v Giannakopoulos (1989) Aust Torts Reports ¶80-274 …. 15.65 Kouris v Prospector’s Motel Pty Ltd (1977) 19 ALR 343 …. 11.97 Koursk, The[1924] P 140 …. 21.5 Kraemers v Attorney-General (Tas) [1966] Tas SR 113 …. 25.15, 25.54, 25.81, 25.96, 25.99 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 …. 22.35, 22.36, 22.82 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 69 ALJR 629 …. 19.4, 19.70, 19.74, 19.80 Kralj v McGrath [1986] 1 All ER 54 …. 15.24 Kretschmar v Queensland (1989) Aust Torts Reports ¶80-272 …. 11.67 Kriz v King [2007] 1 Qd R 327 …. 15.100, 15.102 Kruse v Lindner (1978) 19 ALR 85 …. 22.77 Kuchenmeister v Home Office [1958] 1 QB 496 …. 3.53 Kudrin v City of Mandurah [2012] WASCA 65 …. 10.130 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 …. 9.5, 9.6, 9.7, 10.38 Ku-ring-gai Co-operative Building Society (No 12) Ltd, Re (1978) 36 FLR 134 …. 19.100 Ku-ring-gai Municipal Council v Bonnici [2002] NSWCA 313 …. 25.81 Kuru v New South Wales (2008) 246 ALR 260 …. 4.35, 6.28 Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883; [2002] 3 All ER 209 …. 5.39, 5.42 L L v Commonwealth (1976) 10 ALR 269 …. 9.86 L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225 …. 1.6, 1.57, 19.16, 19.25, 19.32, 19.40, 19.51, 19.60

Lade & Co Pty Ltd v Black [2007] QSC 385 …. 26.24 Lafranchi v Transport Accident Commission (2006) 14 VR 359 …. 11.110 Lagan Navigation Co v Lambeg Bleaching Dyeing and Finishing Co [1927] AC 226 …. 25.68 Lai v Chamberlains [2005] 3 NZLR 291 …. 9.113 Lake v Taggart (1978) 1 SR (WA) 89 …. 26.4 Lam v South Australia (2004) 234 LSJS 414; [2004] SADC 110 …. 9.89 Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188 …. 1.36, 15.20 Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244 …. 20.36 Lampert v Eastern National Omnibus Co Ltd [1954] 1 WLR 1047 …. 17.11 Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 …. 4.69 Lancashire Railway Co v MacNicoll (1919) 88 LJKB 601 …. 5.40 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96 …. 23.44, 23.71, 23.73, 23.75, 23.76, 23.77 Langridge v Levy (1837) 2 M & W 519; 150 ER 863 …. 19.74, 19.78 Lanphier v Phipos (1838) 8 C & P 475; 173 ER 581 …. 11.14 Lansdown v WTH Pty Ltd (1990) 10 MVR 355 …. 20.59 Laoulach v Ibrahim [2011] NSWCA 402 …. 13.70 Latham v Singleton [1981] 2 NSWLR 843 …. 24.60, 24.62, 24.72, 24.79, 24.81, 24.83, 24.85, 24.86 Latter v Braddell (1881) 44 LT 369 …. 6.5 Laugher v Pointer (1826) 5 B & C 547; 108 ER 204 …. 25.8 Laundess v Laundess (1994) 20 MVR 156 …. 9.123 Laut & Loughlin v White Feather Main Reefs (1905) 7 WALR 203 …. 15.64, 15.65 Law v Visser [1961] Qd R 46 …. 3.15 — v Wright [1935] SASR 20 …. 3.76, 15.14 Lawrence v Biddle [1966] 2 QB 504 …. 17.17 — v Fen Tigers Ltd [2011] EWHC 360 (QB) …. 25.64 — v Fen Tigers Ltd (No 2) [2015] AC 106 …. 25.12 — v Keenan (1935) 53 CLR 153 …. 5.16 — v Slatcher [1968] VR 337 …. 17.6 Le Bagge v Buses [1958] NZLR 630 …. 12.9 Le Fanu v Malcomson (1848) 1 HLC 637 …. 22.86 Le Lievre v Gould [1893] 1 QB 491 …. 19.1 League Against Cruel Sports Ltd v Scott [1986] QB 240 …. 4.40, 4.43, 26.28 Leake v Loveday (1842) 4 Man & G 972; 134 ER 399 …. 6.45 Leakey v National Trust [1980] QB 485 …. 25.11, 25.35

Leask Timber and Hardware Pty Ltd v Thorne (1961) 106 CLR 33 …. 18.35 LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 …. 24.48 Lee v Lee’s Air Farming Ltd [1961] AC 12 …. 17.4 — v Wilson (1934) 51 CLR 276 …. 22.68 Lee Transport Co Ltd v Watson (1940) 64 CLR 1 …. 15.151 Leerdam v Noori [2009] NSWCA 90 …. 18.48 Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 …. 20.78 — v — (2007) 230 CLR 22; 233 ALR 200 …. 8.10, 9.7, 10.28, 10.38, 10.132, 10.135, 20.8, 20.78, 20.80 20.83, 25.84 Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; 258 ALR 673 …. 9.31, 20.65 Leinenga v Logan City Council [2006] QSC 294 …. 18.52 Lemaire v Smith’s Newspaper Ltd (1927) 28 SR (NSW) 161 …. 23.132 Lemmon v Webb [1895] AC 1 …. 6.38, 25.68 Leonard v Pollock [2012] WASCA 108 …. 12.15 — v Smith (1992) 27 NSWLR 5 …. 21.24 Lepore v New South Wales (2001) 52 NSWLR 420 …. 20.81 Lester-Travers v City of Frankston [1970] VR 2 …. 25.32, 25.57 L’Estrange v Brisbane Gas Co [1928] St R Qd 180 …. 25.8 Letang v Cooper [1965] 1 QB 232 …. 2.6, 2.22, 2.24, 6.2 Lever Bros Ltd v Bedingfield (1899) 16 RPC 3 …. 24.29 Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48 …. 9.126 Lewis v Daily Telegraph Ltd [1964] AC 234 …. 22.31, 22.52, 22.55, 22.57, 22.83, 23.125 — v Levy (1858) EB & E 537; 120 ER 610 …. 23.61 Leyden v Caboolture Shire Council [2007] QCA 134 …. 11.32, 13.58 Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 …. 19.109 Liberty Financial Pty Ltd v Bluestone Group Pty Ltd [2005] FCA 470 …. 18.45 Lidner v Corp of City of Marion [2015] SASC 152 …. 18.16, 25.15 Liebig’s Extract of Meat Co Ltd v Hanbury (1867) 17 LT (NS) 298 …. 24.28 Liesbosch, Dredger v Edison SS (Owners) [1933] AC 449 …. 15.49 Liftronic Pty Ltd v Unver (2001) 179 ALR 321 …. 13.46 Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174 …. 15.141 Lincoln v Daniels [1962] 1 QB 237 …. 23.28 — v Gravil (1954) 94 CLR 430 …. 16.33 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 …. 4.29, 4.65 Lipman v Clendinnen; Phipps v Rochester Corporation [1955] 1 QB 450 …. 9.9

Lipovac v Hamilton Holdings Pty Ltd (1997) 136 FLR 400 …. 15.65 Lisle v Brice [2002] 2 Qd R 168 …. 12.76, 16.13, 16.14 Lister v Hesley Hall Ltd [2002] 1 AC 215; [2001] 2 WLR 1131 …. 20.6, 20.41, 20.42, 20.49 — v Romford Ice & Cold Storage Co Ltd [1957] AC 555 …. 20.85, 20.86, 20.87, 21.25, 21.27 Little v Commonwealth (1947) 75 CLR 94 …. 3.67, 20.21 — v Law Institute of Victoria [1990] VR 257 …. 7.14, 18.51 Littler v Price [2005] 1 Qd R 275 …. 9.109 Liverpool City Council v Laskar (2010) 77 NSWLR 666 …. 15.106 Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 …. 10.57 Livingstone-Thomas v Associated Newspapers Ltd [1969] 1 NSWR 771 …. 22.82 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 …. 4.20, 4.68 Llavero v Shearer [2014] NSWSC 1336 …. 20.71 Lloyd v Borg bht NSW Trustee and Guardian (2013) 84 NSWLR 652 …. 20.58 — v David Syme & Co Ltd [1986] AC 350; (1985) 63 ALR 83; 60 ALJR 10 …. 22.48, 22.74 — v Fanning (VSC, McDonald J, 4 November 1996, unreported) …. 7.14 — v Grace Smith & Co [1912] AC 716 …. 19.76, 20.37, 20.52 — v Lewis [1963] VR 277 …. 17.22 — v Osborne (1899) 20 LR (NSW) 190 …. 5.63, 5.67 Lloyds and Scottish Finance Ltd v Modern Cars & Caravans (Kingston) Ltd [1966] 1 QB 764 …. 15.42 Lloyds Bank Ltd v Chartered Bank of India, Australia and China [1929] 1 KB 40 …. 19.76 Lochgelly Iron & Coal Co Ltd v McMullan [1934] AC 1 …. 18.3, 18.26 London Artists Ltd v Littler [1969] 2 QB 375 …. 23.78 London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 …. 23.36, 23.41 London Borough of Southwark v Williams [1971] Ch 734 …. 6.41 London Corporation v Riggs (1880) 13 Ch D 798 …. 1.58 London Drugs Ltd v Kuehne and Nagel International Ltd [1992] 3 SCR 299 …. 20.5 London Steamboat Co v Bywell Castle (owners of) (1879) 4 PD 219 …. 13.14 Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 …. 18.16, 18.17 Lonrho plc v Fayed [1989] 3 WLR 631 …. 24.49, 24.73 — v — [1992] 1 AC 448 …. 24.68 Lorca v Holts Corrosion Control Pty Ltd [1981] Qd R 261 …. 15.39 Lord v McMahon [2015] NSWSC 1619 …. 4.23, 4.47, 25.68 — v Nominal Defendant (1980) 24 SASR 458 …. 2.20, 2.22 Lord Byron v Johnston (1816) 2 Mer 29; 35 ER 851 …. 24.22 Lormine Pty Ltd v Xuereb [2006] NSWCA 200 …. 13.68, 13.70

Love v Egan (1970) 65 QJPR 102 …. 6.35 Loveday v Paddison [1965] Qd R 535 …. 9.57 — v Sun Newspapers Ltd (1938) 59 CLR 503 …. 23.45 Lower Murray Urban and Rural Water Corp v Di Masi (2014) 43 VR 348 …. 23.69 Lowns v Woods (1996) Aust Torts Reports ¶81-376 …. 1.4 Lowry v Barlow [1921] NZLR 316 …. 3.44 Lowy v Alexander [2000] NSWSC 661 …. 9.105 Loxton v Waterhouse (1891) 7 WN (NSW) 98 …. 4.6 Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308 …. 18.15 Ludgater v Love (1881) 44 LT 694 …. 19.77 Luke v Luke (1936) 36 SR (NSW) 310 …. 4.10 Lumley v Gye (1853) 2 El & Bl 216; 118 ER 749 …. 24.38, 24.51, 24.58 Lumley Life Ltd v IOOF of Victoria Friendly Society (1990) 16 IPR 316 …. 24.17 Lyle v Soc (2009) 38 WAR 418 …. 16.15 Lynch v Lynch (1991) 25 NSWLR 411 …. 1.22, 1.24, 1.57, 9.59, 15.93, 15.95 — v Mudgee Shire Council (1981) 46 LGRA 204 …. 25.82 — v Shooters Saloon Bar Pty Ltd [2006] QCA 326 …. 11.65 Lyne v Nicholls (1906) 23 TLR 86 …. 24.93 Lyons, Sons & Co v Gulliver [1914] 1 Ch 631 …. 25.80, 25.89 M M Isaacs & Sons Ltd v Cook [1925] 2 KB 391 …. 23.32 Maan v Westbrook [1993] 2 Qd R 267 …. 15.94 Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235 …. 9.61 MacCarthy v Young (1861) 6 H & N 329; 158 ER 136 …. 9.123 Macintosh v Dun (1908) 6 CLR 303; [1908] AC 390 …. 23.36 Macleay Pty Ltd (t/as Wobbies World) v Moore (1992) Aust Torts Reports ¶81-151 …. 13.105 MacPherson v Beath (1975) 12 SASR 174 …. 3.32 Macrocom Pty Ltd v City West Centre Pty Ltd [2003] NSWSC 898 …. 5.94 Madden v Seafolly Pty Ltd (2014) 313 ALR 1 …. 22.96, 23.45, 23.46 Madison Constructions Pty Ltd v Empire Building Group (ACT) Pty Ltd [2012] FCA 381 …. 24.23 Mafo v Adams [1970] 1 QB 548 …. 19.84 Magill v Magill (2006) 226 CLR 551; 231 ALR 277 …. 7.6, 19.67, 19.71, 19.80, 19.92 Maher-Smith v Gaw [1969] VR 371 …. 11.97, 11.98 Mahon v Osborne [1939] 2 KB 14 …. 11.15

— v Rahn (No 2) [2000] 1 WLR 2150 …. 7.13 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59 ALR 722 …. 12.79, 12.80, 21.17 Maitland v Raisbeck [1944] KB 689 …. 25.88 Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224 …. 18.23 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 …. 15.67, 15.71 Mallett v Dunn [1949] 2 KB 180 …. 17.20 Malliate v Sharpe [2001] NSWSC 1057 …. 25.11 Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 …. 18.2 Malone v Laskey [1907] 2 KB 141 …. 25.5, 25.6, 25.7, 25.95 Malor v Ball (1900) 16 TLR 239 …. 26.10 Malyon v Plummer [1964] 1 KB 330 …. 16.23 Malzy v Eichholz [1916] 2 KB 308 …. 25.12 Management 3 Group Pty Ltd (in liq) v Lenny’s Commercial Kitchen’s Pty Ltd (2011) 281 ALR 482 …. 5.30 Manchester Corporation v Farnworth [1930] AC 171 …. 6.51 Manders v Williams (1849) 4 Exch 339; 154 ER 1242 …. 5.11 Manefield v Association of Quality Child Care Centres of NSW (t/as Child Care NSW) [2010] NSWSC 1420 …. 23.124, 23.126 Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413 …. 9.57, 9.62, 11.96 Manly Council v Byrne [2004] NSWCA 123 …. 13.11 Mann v Medicine Group Pty Ltd (1991) 105 FLR 419 …. 22.74 — v — (1992) 38 FCR 400 …. 22.74 — v O’Neill (1997) 191 CLR 204; 145 ALR 682 …. 23.25, 23.27, 23.28 — v Saulnier (1959) 19 DLR (2d) 130 …. 4.15 Mansell v Griffin [1908] 1 KB 160 …. 6.53 Mansfield v Baddeley (1876) 34 LT 696 …. 26.7 Manvell v Thomson (1826) 2 C & P 303; 172 ER 137 …. 17.24 March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423; [1991] HCA 12 …. 8.19, 11.81, 12.25, 12.27, 12.34, 12.88, 19.57 Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 …. 25.39 Margery Farlam Lawyers Trust Accounts, Re (No 3) (2007) 96 SASR 337 …. 20.39 Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 …. 17.4 Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 153 ALR 602 …. 24.69 Mark v Barkla [1935] NZLR 347 …. 26.26 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 …. 19.110 Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169 …. 10.79, 10.80, 10.92, 25.2, 25.51

Marshall v Megna [2013] NSWCA 30 …. 23.37 — v Osmond [1983] QB 1034 …. 9.57, 11.67 Martin v Benson [1927] 1 KB 771 …. 15.18 — v Trustees of the British Museum (1894) 10 TLR 338 …. 22.93 — v Watson [1996] AC 74; [1995] 3 All ER 559 …. 7.13 Mason v Clarke [1955] AC 778 …. 4.12 Matthew v Flood [1938] SASR 312 …. 16.33 — v — (1939) 62 CLR 750 …. 16.33 — v — [1939] SASR 389 …. 16.33 — v — [1940] SASR 48 …. 16.33 Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57 …. 9.26 — v McCullock of Australia Pty Ltd [1973] 2 NSWLR 331 …. 18.35 May v Burdett (1846) 9 QB 101; 115 ER 1213 …. 26.10, 26.14 — v Mijatovic (2002) 26 WAR 95 …. 9.107 — v Thomas (No 2) [2012] WADC 96 …. 6.32 Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 …. 5.39 Maynes v Casey [2011] NSWCA 156 …. 4.32, 7.26 Mayor, Alderman and Burgesses of the Borough of Colchester v Brooke (1847) 7 QB 339 …. 25.68 Mbakwe v Sarkis [2009] NSWCA 330 …. 19.35 MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; 98 ALR 193 …. 15.146 McCarty v Municipality of North Sydney (1918) 18 SR (NSW) 210 …. 25.6 McClelland v Symons [1951] VLR 157 …. 3.32, 6.30, 6.31 McClure v Commonwealth [1999] NSWCA 392 …. 20.36 McColl v Dionisatos (2002) Aust Torts Reports ¶81-652 …. 15.30 McCoy Constructions Pty Ltd v Dabrowski [2001] QSC 413 …. 25.47 McCullagh v Lawrence [1989] 1 Qd R 163 …. 16.39 McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906 …. 20.63 McDonald v Commonwealth (1945) 46 SR (NSW) 129 …. 20.23 — v Ludwig [2007] QSC 028 …. 6.16 — v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 …. 3.11 — v Smitty’s Super Valu Inc 757 P 2d 120 (1988) …. 11.110 McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd (2004) Aust Torts Reports ¶81-768 …. 18.14, 18.30, 18.32 McDowall v Reynolds [2004] QCA 245 …. 4.12 McFadzean v Construction, Forestry, Mining and Energy Union [2004] VSC 289 …. 3.52, 3.57

— v — (2007) 20 VR 250 …. 3.46, 3.54, 3.56, 3.57, 25.79 McFarlane v Tayside Health Board [2000] 2 AC 59; [1999] 4 All ER 961 …. 15.41 McGhee v National Coal Board [1972] 3 All ER 1008; [1973] 1 WLR 1 …. 12.44, 12.45, 12.46 McGreevy v Cannon Hill Services Pty Ltd [2016] QSC 29 …. 9.43 McGuire v Union Steamship Co of New Zealand Ltd (1920) 27 CLR 570 …. 1.46 McHale v Watson (1964) 111 CLR 384 …. 2.8, 2.20, 2.22, 2.23, 6.3, 9.80 — v — (1966) 115 CLR 199 …. 2.22, 11.9, 13.11 McKenna v Avior Pty Ltd [1981] WAR 255 …. 16.29 McKenzie v Powley [1916] SALR 1; [1916] 5 ALR 1 …. 25.26, 25.45, 25.75 McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 …. 5.93, 5.101 McKernan v Fraser (1931) 46 CLR 343 …. 24.67, 24.69, 24.70, 24.72 McLean v David Syme & Co Ltd (1970) 92 WN (NSW) 611 …. 23.129 — v Tedman (1984) 155 CLR 306; 56 ALR 359 …. 9.45, 11.81, 13.15 McLeod v Rub-a-dub Car Wash (Morvan) Pty Ltd (unreported, 29 February 1972, Victorian Supreme Court) …. 25.7 McLoughlin v O’Brian [1983] 1 AC 410 …. 10.41, 10.52 McMahon v Catanzaro [1961] QWN 22 …. 25.49 McMeekin v Council of the City of Maryborough [1947] St R Qd 192 …. 25.101 McNamara v Duncan (1971) 26 ALR 584 …. 3.3, 3.13, 6.5, 6.7 McNeill v Johnstone [1958] 1 WLR 888 …. 17.19 McNeilly v Imbree (2007) 47 MVR 536; Aust Torts Reports ¶81-895 …. 11.23, 11.24 McPherson’s Ltd v Eaton (2005) 65 NSWLR 187 …. 9.123 — v Hickie (1995) Aust Torts Reports ¶81-348 …. 23.94 McQuaker v Goddard [1940] 1 All ER 471; [1940] 1 KB 687 …. 26.3 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] ALR 771 …. 15.56 McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2007) 97 SASR 160 …. 20.70 Meadows v Ferguson [1961] VR 594 …. 12.9 Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 …. 11.44 Mears v London & South Western Railway Co (1862) 11 CBNS 850; 142 ER 1029 …. 5.70 Mediana, The [1900] AC 113 …. 15.14 Medlin v State Government Insurance Commission (1995) 182 CLR 1; 127 ALR 180 …. 12.28, 12.76, 15.54, 15.68, 15.76, 15.101 Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 …. 3.48, 3.49 Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54 …. 9.103 Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31 …. 25.57

Melchior v Cattanach (2001) 217 ALR 640 …. 15.28 Meldrum v Australian Broadcasting Co Ltd [1932] VLR 425 …. 22.17 Mendez v Palazzi (1976) 68 DLR (3d) 582 …. 25.16 Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 …. 24.93, 24.99 Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432 …. 17.4, 17.8 Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 …. 11.69 Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; 284 ALR 1 …. 11.78 Merryweather v Nixan (1799) 8 Term Rep 186; 101 ER 1337 …. 21.15, 21.16 Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 …. 20.11, 20.23, 20.24 Metall & Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 …. 18.46 Metrolink Victoria Pty Ltd v Auspro Logistics Pty Ltd (2008) 49 MVR 350 …. 11.110 Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193 …. 25.56, 25.57 Metropolitan Police Commissioner v Reeves [2000] 1 AC 360; [1999] 3 All ER 897 …. 9.88 Metropolitan Properties v Jones [1939] 2 All ER 202 …. 25.42 Metropolitan Railway Co v Jackson (1877) 3 App Cas 193 …. 11.89 Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87; 157 ER 769 …. 22.86 Meyers v Casey (1913) 17 CLR 90 …. 15.2 Mickelbreg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187 …. 22.17 Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460 …. 19.40, 19.47 Middleton v Aon Risk Services Australia Ltd [2008] WASCA 239 …. 19.6, 19.73 Midwood & Co Ltd v Manchester Corporation [1905] 2 KB 597 …. 25.27 Miles v Commercial Banking Co of Sydney (1904) 1 CLR 470 …. 22.60 Miletic v Capital Territory Health Commission (1995) 130 ALR 591; 69 ALJR 675 …. 11.86 Millar v Candy (1981) 38 ALR 299 …. 15.50 Miller v Imperial College Healthcare NHS Trust [2014] EWHC 3772 (QB) …. 15.126 — v Jackson [1977] QB 966 …. 4.14, 15.2, 24.33, 25.60, 25.64, 25.69, 25.93, 25.101 — v Jennings (1954) 92 CLR 190 …. 15.151, 15.152 — v Miller (2011) 242 CLR 446; 275 ALR 611 …. 13.75 — v Sotiropoulos (NSWCA, Mason P, Meagher and Powell JJA, 18 August 1997, unreported) …. 6.31 Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd (The Wagon Mound (No 2)) [1963] SR (NSW) 948 …. 11.44 Millicent District Council v Altschwager (1983) 50 ALR 173 …. 11.99 Millington v Fox (1838) 3 My & Cr 338; 40 ER 956 …. 24.14 Mills v Baitis [1968] VR 583 …. 12.9

Ming Kuei Property Investments Pty Ltd v Hampton (1994) 126 ALR 313 …. 5.103 Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 …. 8.8, 10.10 Minister for Health v AS (2004) 33 Fam LR 223 …. 6.20 Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1 …. 4.7 Minogue v Rudd [2012] NSWSC 305 …. 11.109 Mirror Newspapers Ltd v Jools (1985) 65 ALR 174 …. 23.115, 23.130 — v World Hosts Pty Ltd (1979) 141 CLR 632; 23 ALR 167 …. 22.65, 22.73, 24.87 Misson v McOwan [1906] VLR 280; (1906) 12 ALR 478 …. 23.101 Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 …. 11.31 Mitchil (or Michael) v Alestree (1676) 1 Vent 295; 3 Keb 650; 2 Lev 172 …. 1.40 Mitsui OSK Lines Ltd v The Ship ‘Mineral Transporter’ [1983] 2 NSWLR 564 …. 15.49 M’Kew v Holland & Hannen & Cubitts (Scotland) Ltd (1970) SC (HL) 20 …. 12.71 Mobbs v Kain (2009) 54 MVR 179 …. 11.31 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 …. 9.3, 9.5, 9.19, 9.24, 9.25, 9.80 Moder v Commonwealth; Sochorova v Commonwealth (2012) 261 FLR 396 …. 18.60 Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25 …. 1.8 Mohr & Mohr v Cleaver & Cleaver [1986] WAR 67 …. 19.35 Moloughney v Wellington Racing Club [1935] NZLR 800 …. 13.66 Monie v Commonwealth [2007] NSWCA 230 …. 13.20 Monson v Tussauds Ltd [1894] 1 QB 671 …. 22.14 Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258 …. 25.9 Moody v Cox & Hatt [1917] 2 Ch 71 …. 9.105 Moore v Lamb (1994) Aust Torts Reports ¶81-295 …. 16.38 — v Lambeth County Court Registrar (No 2) [1970] 1 QB 560 …. 5.76 Moorgate Mercantile Co Ltd v Finch & Read [1962] 1 QB 701 …. 5.40 — v Twitchings [1977] AC 890 …. 5.53, 5.54 Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414; 56 ALR 193 …. 24.6, 24.26 Moran v McMahon (1985) 3 NSWLR 700 …. 15.151 Morgan v Fry [1968] 2 QB 710 …. 24.75 — v Khyatt [1964] 1 WLR 475 …. 25.11 — v Lingen (1863) 8 LT 800 …. 22.46 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 …. 23.98, 23.135 Morris v C W Martin & Sons Ltd [1966] 1 QB 716 …. 20.37

— v Marsden [1952] 1 All ER 925 …. 1.27, 2.17, 3.3, 3.16, 6.65 Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934 …. 18.16, 18.17 Morton v Knight [1990] 2 Qd R 419 …. 13.24 Moss v Christchurch Rural District Council [1925] 2 KB 750 …. 25.71 — v Eagleston [2014] NSWSC 6 …. 9.107 Motor Accidents Insurance Board v Lester [2016] TASSC 2 …. 26.35 — v Pulford (1993) Aust Torts Reports ¶81-235 …. 15.94 Motor Dealers Credit Corporation Ltd v Overland (Sydney) Ltd (1931) 31 SR (NSW) 516 …. 5.53 Moukataff v British Overseas Airways Corporation [1967] 1 Lloyds Rep 396 …. 5.61 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1971] ALR 253 …. 1.43, 9.35, 10.44, 12.17, 12.64 Mourton v Poulter [1930] 2 KB 183 …. 9.9 Mowlds v Fergusson (1940) 64 CLR 206 …. 23.43 Mules v Ferguson [2015] QCA 5 …. 13.83 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; 221 ALR 764 …. 9.18, 11.48, 11.83 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 …. 11.102, 11.104, 18.25 Munce v Vinidex [1974] 2 NSWLR 235 …. 15.39 Mundey v Askin [1982] 2 NSWLR 369 …. 22.51 Mundy v Government Insurance Office (NSW) (NSWSC, Spender JA, 5 June 1995, unreported) …. 15.35 Municipal Tramways Trust v Ashby [1951] SASR 61 …. 13.4 Munnings v Australian Government Solicitor (1994) 118 ALR 385; 68 ALJR 169 …. 2.26 Munro v Southern Dairies Ltd [1955] VLR 332 …. 25.41, 25.44, 25.46, 25.48, 25.51, 25.66, 26.39 — v Willmott [1949] 1 KB 295 …. 5.86, 5.87 Munster v Lamb (1883) 11 QBD 588 …. 23.24 Murphy v Brown (1985) 1 NSWLR 131 …. 15.45 — v Culhane [1977] 1 QB 94 …. 16.8 — v Houghton & Byrne (Qld) Pty Ltd [1964] QWN 6 …. 15.141 — v Overton Investments Pty Ltd (2004) 204 ALR 26 …. 19.111 — v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023 …. 15.34 Murray v Harringay Arena Ltd [1951] 2 KB 529 …. 13.66 — v McMurchy [1949] 2 DLR 442 …. 6.16, 6.42 — v Ministry of Defence [1988] 2 All ER 521; [1988] 1 WLR 692 …. 3.48, 3.49 Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251 …. 19.89 Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3 …. 1.43, 10.79, 19.15, 19.19, 19.20, 19.23, 19.24, 19.25, 19.27, 19.32, 19.35, 19.39, 19.44, 19.46, 19.51

— v — (1970) 122 CLR 628; [1971] AC 793 …. 19.15, 19.39 Myer Stores Ltd v Soo [1991] 2 VR 597 …. 3.51, 3.53, 3.59, 3.67, 3.82 MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 LR 659 …. 9.84 N N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB) …. 20.31 Nada v Knight (1990) Aust Torts Reports ¶81-032 …. 9.87 Nader v Urban Transit Authority (1985) 2 NSWLR 501 …. 10.46, 15.30 Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 393 …. 9.18, 11.43, 11.81 Nair v Health Administration Corporation (1994) Aust Torts Reports ¶81-312 …. 9.34 Nalder v Commissioner for Railways [1983] Qd R 620 …. 18.18 Nance v British Columbia Electric Railway Co Ltd [1951] AC 601; [1951] 2 All ER 448 …. 13.2, 16.36 Napaluma v Baker (1982) 29 SASR 192 …. 15.125 Narich Pty Ltd v Commissioner of Payroll Tax [1983] 2 NSWLR 597; (1983) 50 ALR 417 …. 20.9 National Australia Bank Ltd v McFarlane (2005) Aust Torts Reports ¶81-819 …. 7.19 — v Nemur Varity Pty Ltd (2002) 4 VR 252 …. 5.94 National Coal Board v England [1954] AC 403 …. 11.90, 11.98 — v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861 …. 2.4, 5.25, 6.3 National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 …. 15.134, 15.138 Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 …. 7.6, 7.28, 9.44 Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 …. 11.71, 12.45, 13.90 Neal v CSR Ltd (1990) Aust Torts Reports ¶81-052 …. 15.65 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 …. 24.63 Negretto v Sayers [1963] SASR 313 …. 12.66 Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 …. 9.33 Neindorf v Junkovic (2005) 222 ALR 631 …. 9.12, 11.58 Nelipa v Robertson [2001] ACTSC 55 …. 24.79 Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201; 5 ALR 289 …. 11.66 Nettleship v Weston [1971] 2 QB 691 …. 11.25 New South Wales v Ball (2007) 69 NSWLR 463 …. 10.138 — v Eade [2006] NSWSC 84 …. 20.88 — v Fahy (2007) 232 CLR 486; 236 ALR 406 …. 8.15, 10.39, 10.76, 10.145, 11.35, 11.36, 11.44, 11.48, 11.84 — v Godfrey (2004) Aust Torts Reports ¶81-741; [2004] NSWCA 113 …. 9.83, 9.89, 12.65 — v Griffin [2004] NSWCA 17 …. 13.11 — v Ibbett (2005) 65 NSWLR 168 …. 3.79

— v — (2006) 229 CLR 638; 231 ALR 485 …. 1.36, 3.83, 4.62, 4.63 — v Knight [2002] NSWCA 392 …. 2.24 — v Koumdjiev (2005) 63 NSWLR 353 …. 4.32 — v Kuru (2007) Aust Torts Reports ¶91-893 …. 4.35 — v Landini [2010] NSWCA 157 …. 7.13, 7.18 — v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 …. 2.10, 9.75, 20.3, 20.5, 20.28, 20.33, 20.42, 20.43, 20.46, 20.48, 20.62, 20.67, 20.71, 20.81, 20.82 — v McMaster [2015] NSWCA 228 …. 6.32 — v Moss (2000) 54 NSWLR 536 …. 15.69, 15.73 — v Napier [2002] NSWCA 402 …. 9.85 — v Radford [2010] NSWCA 276 …. 3.84, 14.43 — v Riley (2003) 576 NSWLR 496 …. 6.62 Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 …. 25.17 Newington v Windeyer (1985) 3 NSWLR 555 …. 4.4, 4.5 Newmans Coach Lines Ltd v Robertshawe [1984] 1 NZLR 53 …. 15.49 News Ltd v Australian Rugby Football League Ltd (1996) 58 FCR 447; 135 ALR 33 …. 24.39, 24.41 — v — (1996) 139 ALR 193 …. 24.59 Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161 …. 16.29, 16.35 Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch 343 …. 2.19 Nichols v Marsland (1875) LR 10 Ex 255 …. 26.15 Nicholson v Nicholson (1994) Aust Torts Reports ¶81-310 …. 13.30 Nielsen v City of Kamloops 10 DLR (4th) 641 (1984) …. 10.10 Nightingale v Blacktown City Council [2015] NSWCA 423 …. 10.150 Nilon v Bezzina [1988] 2 Qd R 420 …. 12.52 Nixon v Philip Morris (Aust) Ltd (1999) 95 FCR 453; 165 ALR 515 …. 14.18, 19.114 — v Slater & Gordon (2000) 175 ALR 15 …. 19.100, 22.99 NOC Inc v Schaefer 484 A 2d 729 (1984) …. 7.24 Nocton v Lord Ashburton [1914] AC 932 …. 19.1, 19.72, 19.90 Nominal Defendant v Andrews (1969) 121 CLR 562 …. 5.33 — v Gardikiotis (1996) 186 CLR 49 …. 15.131 — v Morgan Cars Pty Ltd (1974) 131 CLR 22 …. 5.33 — v Puglisi (1984) 58 ALJR 474 …. 11.99 — v Taylor (1982) 154 CLR 106; 41 ALR 244 …. 16.24 Norris v Blake (No 2) (1997) 41 NSWLR 49 …. 15.71 — v Sibberas [1990] VR 161 …. 19.38

North v Wood [1914] 1 KB 629 …. 26.9 North Sydney Council v Roman (2007) 69 NSWLR 240 …. 10.150 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 …. 9.21, 9.22, 9.23, 20.8, 20.62, 20.73, 20.74, 20.76 Northern Territory v Mengel (1995) 185 CLR 307; 129 ALR 1 …. 1.6, 2.24, 2.27, 7.5, 18.52, 18.53, 18.54, 18.55, 18.56, 18.59, 18.60, 18.62, 18.63, 24.2 Norton v Hoare (No 1) (1913) 17 CLR 310 …. 6.37 Noye v Robbins [2010] WASCA 83 …. 7.17 NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Ltd (1947) 47 SR (NSW) 273 …. 4.5 Nunan v Southern Railway Co [1924] 1 KB 223 …. 16.7 Nutrientwater Pty Ltd v Baco Pty Ltd (2010) 265 ALR 140 …. 24.18 Nye v New South Wales (2004) Aust Torts Reports ¶81-725 …. 7.9 Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294 …. 4.40 O Oakley v Lyster [1931] 1 KB 148 …. 5.40, 5.48, 5.53 Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022 …. 22.39, 22.50 OBG Ltd v Allan; Douglas v Hello! Ltd (No 3) [2008] 1 AC 1; [2007] 4 All ER 545 …. 7.31, 24.3, 24.5, 24.48 O’Brien v Dawson (1942) 66 CLR 18 …. 24.63 — v McKean (1968) 118 CLR 540 …. 15.68, 15.141, 15.148 — v Shire of Rosedale [1969] VR 112 …. 4.38 — v — [1969] VR 645 …. 6.49 Ocean Accident Co v Ilford Gas Co [1905] 2 KB 493 …. 4.7 Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; 66 ALR 29 …. 20.21 O’Connell v Jackson [1971] 3 All ER 129 …. 13.20 O’Connor v Sheriff of Queensland (1892) 4 QLJ 213 …. 6.58 — v SP Bray Ltd (1937) 56 CLR 464 …. 11.78, 18.7, 18.10, 18.11, 18.13, 18.16, 18.18 O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89 …. 23.134 Oldham v Lawson (No 1) [1976] VR 654 …. 25.5, 25.7, 25.53 O’Leary v Lamb & Lensworth Finance Ltd (1973) 7 SASR 159 …. 19.26 Onus v Telstra Corporation Ltd [2011] NSWSC 33 …. 25.15, 25.41, 25.79 Orange v Chief Constable of West Yorkshire Police [2002] QB 347 …. 9.88 Orange Crush (Australia) Ltd v Gartrell (1928) 41 CLR 282 …. 24.9 Orica Investments Pty Ltd v McCartney [2007] NSWSC 645 …. 24.48 Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth (1983) 50 ALR 452 …. 20.21

Origliasso v Vitale [1952] St R Qd 211 …. 3.37, 3.38 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) (2002) 120 FCR 191 …. 24.101 Oropesa, The [1943] P 32 …. 12.73, 15.42 Orr v Isles [1965] NSWR 677 …. 23.101 Osborne v Downer EDI Mining Pty Ltd [2010] QSC 470 …. 13.16 O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 …. 23.80, 23.81, 23.87 O’Shea v Permanent Trustee Co of New South Wales Ltd [1971] Qd R 1 …. 13.61, 13.63 — v Sullivan (1994) Aust Torts Reports ¶81-273 …. 15.121 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 …. 12.63, 25.37, 25.53 Owners - Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117; [2002] NSWCA 92 …. 25.11, 25.16 P Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14 …. 24.26 Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406 …. 9.43 Padbury v Holliday & Greenwood Ltd (1912) 28 TLR 494 …. 20.66 Paff v Speed (1961) 105 CLR 549 …. 15.56, 15.58, 15.69 Painter v Reed [1930] SASR 295 …. 25.50 Palace Backpackers Australia Pty Ltd v Christensen Industries Pty Ltd (2002) 23 Qld Lawyer Reps 79; [2002] QDC 084 …. 5.91 Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 …. 4.54, 4.59, 19.85, 24.87, 24.89, 24.93, 24.96, 24.97, 24.98, 24.99, 24.100 Pamplin v Express Newspapers Ltd (No 2) [1988] 1 All ER 282; [1988] 1 WLR 116 …. 15.18 Pantalone v Alaouie (1989) 18 NSWLR 119 …. 25.15, 25.18 Papadopoulos v MC Labour (Ruling No 2) [2009] VSC 176 …. 15.134 Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1 …. 11.20 Papathanasopoulos v Vacopoulos [2007] NSWSC 502 …. 5.61 Pargiter v Alexander (1995) 5 Tas R 158; Aust Torts Reports ¶81-349 …. 5.73, 5.76, 5.79, 5.82, 5.94, 5.95, 15.45, 15.46 Paris v Stepney Borough Council [1951] AC 367; [1951] 1 All ER 42 …. 11.4, 11.55 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191; 42 ALR 1; 1A IPR 684 …. 24.36 Parker v British Airways Board [1982] QB 1004 …. 5.14, 5.15, 5.38 — v Commonwealth (1965) 112 CLR 295 …. 16.33, 16.36 — v Dzundza [1979] Qd R 55 …. 17.17

— v Guardian Fire Sprinkler Co (Qld) Pty Ltd [1982] Qd R 709 …. 15.143 — v Parker [1979] Qd R 50 …. 15.124 — v South Australian Housing Trust (1986) 41 SASR 493 …. 9.21 Parkinson v St James and Seacroft University Hospital NHS Trust [2001] 3 All ER 97 …. 12.13 Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340 …. 22.12, 22.38, 22.39 Parr v Ash (1876) SCR (NSW) 352 …. 5.36 Parramatta City Council v Lutz (1988) 12 NSWLR 293 …. 4.58 Parry v Cleaver [1970] AC 1 …. 15.26 — v Crooks (1981) 6 Fam LR 824 …. 3.85 — v Woolworths Ltd [2010] 1 Qd R 1 …. 18.32 Parsons v Randwick Municipal Council [2003] NSWCA 171 …. 11.33 Partridge v Chick (1951) 84 CLR 611 …. 16.7 Pask v Owen [1987] 2 Qd R 421 …. 18.27 Pasley v Freeman (1789) 3 Term Rep 51; 100 ER 450 …. 19.65, 19.69 Paul v Cooke (2013) 85 NSWLR 167 …. 13.96 — v Rendell (1981) 55 ALJR 371 …. 15.151 Paxhaven Holdings Ltd v Attorney-General [1974] 2 NZLR 185 …. 25.65 PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87 …. 4.20 Pearce v Hallett [1969] SASR 423 …. 6.30 — v Round Oak Steel Works Pty Ltd [1969] 1 WLR 595 …. 11.111 Peat v Lin [2005] 1 Qd R 40 …. 20.20 Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 …. 14.52 Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574 …. 25.12 Peek v Gurney (1873) LR 6 HL 377 …. 19.5, 19.78 Pegler v Wang (UK) Ltd (2000) BLR 218 …. 13.104 Peipman v Turner [1961] NSWR 252 …. 16.39 Penfold v Westcote (1806) 2 Bos & Pal (NR) 335; 127 ER 656 …. 22.51 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 …. 5.7, 5.8, 5.12, 5.19, 5.23, 5.27, 5.30, 5.33, 5.39, 5.46, 5.50, 5.51, 5.70, 5.97, 5.98 Penford v Betteridge (2011) 13 DCLR (NSW) 168; [2011] NSWDC 146 …. 26.23 Pennant Hills Restaurants Pty Ltd v Barrell Insurances Ltd (1981) 145 CLR 625; 34 ALR 162 …. 15.142 Pennington v Norris (1956) 96 CLR 10 …. 13.22, 13.23, 13.24, 13.46 Penton v Calwell (1945) 70 CLR 219; [1945] ALR 262 …. 23.45, 23.46 Pergrum v Fatharly (1996) 14 WAR 92 …. 9.103 Perisher Blue Pty Ltd v Nair-Smith (2015) 295 FLR 153; 320 ALR 235 …. 13.95

Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reports ¶80-295 …. 5.34 Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 …. 1.10, 1.57, 9.120, 10.5, 10.15, 10.19, 10.23, 10.24, 10.28, 10.75, 10.85, 10.86, 10.87, 10.91, 10.92, 10.93, 10.94, 10.112, 12.86, 19.18, 19.22 Perry v Australian Rail Track Corporation Ltd (2013) 64 MVR 121 …. 15.65 Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 …. 23.80, 23.82 Petchell v Du Pradal [2015] QCA 132 …. 17.8 Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 …. 24.12, 24.14, 24.18 Peters v R (1998) 192 CLR 493 …. 24.60, 24.62 Petersen v Moloney (1951) 84 CLR 91 …. 20.52 Pham v Lawson (1997) 68 SASR 124 …. 10.57 Phelps v Hillingdon London Borough Council [2001] 2 AC 619; [2000] 4 All ER 504 …. 9.74 Phillips v Britannia Hygienic Laundry Co Ltd [1923] 1 KB 539 …. 18.26 — v MCG Group Pty Ltd [2012] QSC 149 …. 15.128 Phoenix Society Incorporated v Cavenagh (1996) 25 MVR 143 …. 20.36 Pickering v Ready Mixed Concrete (Queensland) Pty Ltd [1967] QWN 45 …. 17.17 — v Rudd (1815) 4 Camp 219; 171 ER 70 …. 4.44 Pinborough v Minister of Agriculture [1974] 7 SASR 493 …. 9.9 Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1 …. 14.22, 14.24 Piro v W Foster & Co Ltd (1943) 68 CLR 313 …. 18.40 Pitcher v Martin [1937] 3 All ER 918 …. 26.40 Place v Searle [1932] 2 KB 497 …. 17.13 Placer Exploration Ltd v Misiorowski [1970] ALR 435; (1969) 43 ALJR 376 …. 11.91 Plantet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 …. 15.152 Plato Films v Speidel [1961] AC 1090 …. 23.134 Platt v Nutt (1988) 12 NSWLR 231 …. 2.23, 2.24 Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78 ALJR 572 …. 12.23, 12.28, 12.29, 12.85 Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353 …. 1.14, 3.75, 4.33, 4.35, 4.37, 6.28 Plomien Fuel Economiser Co Ltd v National School of Salesmanship Ltd (1943) 60 RPC 209 …. 24.19 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492 …. 13.22, 13.24, 13.46 Poland v John Parr & Sons [1927] 1 KB 236 …. 20.38 Polemis and Furness, Withy & Co Ltd, Re [1921] 3 KB 560 …. 12.61 Police v Greaves [1964] NZLR 295 …. 3.24, 3.30 Poole v State Transport Authority (Rail Division) (1982) 31 SASR 74 …. 13.19 Port Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 …. 4.55, 4.56, 4.60, 4.69

Potts v Frost (2011) 59 MVR 267 …. 11.110 — v Smith (1868) LR 6 Eq 311 …. 25.21 Powell v Gelston [1916] 2 KB 615 …. 22.76 Powney v Kerang and District Health (2014) 43 VR 506 …. 12.40 PQ v Australian Red Cross Society [1992] 1 VR 19 …. 11.61 Pratt v British Medical Association [1919] 1 KB 244 …. 24.58 — v Connolly (1994) Aust Torts Reports ¶81-283 …. 20.59 — v Young (1952) 69 WN (NSW) 214 …. 25.52 Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 …. 15.152 Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 …. 10.126, 10.142, 10.145 Premier Group Pty Ltd v Followmont Transport Pty Ltd [2000] 2 Qd R 338 …. 5.91 Prendergast v Roberts [2012] QSC 144 …. 23.117 Presser v Caldwell Estates Pty Ltd [1971] 2 NSWLR 471 …. 19.26 Prestia v Aknar (1996) 40 NSWLR 165 …. 13.84 Preston v Star City Pty Ltd [1999] NSWSC 1273 …. 18.17 Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215; [2008] NTCA 2 …. 16.21, 16.35, 16.44 Price v New South Wales [2011] NSWCCA 341 …. 9.83 Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 …. 25.66, 25.69 Priestley v Fowler (1837) 3 M & W 1; 150 ER 1030 …. 9.28 Prior v Kemp [2001] WASCA 22 …. 6.36 Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Reports ¶81-397 …. 5.76, 5.82, 5.95 Progress & Properties Ltd v Craft (1976) 135 CLR 651; 12 ALR 59 …. 18.23, 18.34, 18.39 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 …. 18.7 Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102 …. 10.113, 10.118 Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478 …. 25.10 Proudman v Allen [1954] SASR 336 …. 1.8, 6.39, 6.42 Public Transport Commission (NSW) v Perry (1977) 137 CLR 107; 14 ALR 273 …. 2.17, 4.40, 6.4 Public Trustee v Zoanetti (1945) 70 CLR 266 …. 16.36, 16.43 Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27 …. 14.23, 19.37 Pullman v Walter Hill & Co Ltd [1891] 1 QB 524 …. 22.75 Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 …. 18.4 Purdy v Woznesensky [1937] 2 WWR 116 …. 7.2 Pym v Great Northern Railway Co (1862) 2 B & S 759; 121 ER 1254 …. 16.26

Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 …. 9.24, 10.15, 10.123, 10.126, 10.127, 10.128, 10.129, 10.137, 10.141 Q Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 …. 24.4, 24.44, 24.46, 24.50, 24.54 QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245 …. 18.50 Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 …. 9.33 Queensland v Kelly [2015] 1 Qd R 577 …. 13.54, 13.94 — v Nolan [2002] 1 Qd R 454 …. 6.44 Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93 …. 10.105 Quigley v Wallace [2015] WASC 479 …. 22.54 Quinn v Hill [1957] VR 439 …. 1.4, 9.87 — v Leathem [1901] AC 495 …. 24.39, 24.42, 24.47, 24.56, 24.60 Qumsieh v Guardianship and Administration Board [1998] VSCA 45 …. 6.25 R R v A-G (Cth) v Associated Northern Collieries (1911) 14 CLR 387 …. 24.62 — v Awang [2004] 2 Qd R 672 …. 3.49 — v Bailiff [2002] ACTSC 79 …. 3.32 — v Brockhill Prison; Ex parte Evans (No 2) [2000] 4 All ER 15 …. 6.64 — v Brown (1841) C & M 314; 174 ER 522 …. 3.69 — v Burdett (1882) 106 ER 873 …. 22.1 — v Creevey (1813) 105 ER 102 …. 23.20 — v Gabriel (2004) 182 FLR 102; [2004] ACTSC 30 …. 3.21, 3.22, 3.25 — v Garrett (1988) 50 SASR 392 …. 3.57 — v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19 …. 3.71 — v Hamilton (1891) 12 LR (NSW) 111 …. 3.26 — v Ireland [1998] AC 147 …. 3.23 — v Kelly [1998] 3 All ER 741 …. 5.3 — v Kinloch (1996) 187 LSJS 124 …. 6.53 — v Lord Abingdon (1794) 170 ER 337 …. 23.20 — v Macquarie (1875) 13 SCR (NSW) 264 …. 3.54 — v Macnamara (1893) 14 LR (NSW) 515 …. 22.83 — v Manchester City Magistrates’ Court; Ex parte Davies [1989] QB 631; [1989] 1 All ER 910 …. 6.55 — v Moore (1832) 3 B & Ad 184; 110 ER 68 …. 25.82

— v Papadimitropoulos (1957) 98 CLR 249 …. 6.10 — v Phillips (1971) 45 ALJR 467 …. 3.24 — v Portelli (2004) 148 A Crim R 282 …. 6.33 — v Rimmington [2006] 1 AC 459 …. 25.77 — v Saskatchewan Wheat Pool [1983] 1 SCR 205 …. 18.5 — v Shamrock [1994] QB 279 …. 25.86 — v St George (1840) 9 Car & P 483 …. 3.26 — v Terry [1955] VLR 114 …. 6.53, 6.54 — v Williams [1923] 1 KB 340 …. 6.10 — v Young (1999) 46 NSWLR 681 …. 16.45 R & C Products Pty Ltd t/as Samuel Taylor v S C Johnson & Sons Pty Ltd (1993) 113 ALR 487 …. 24.24 R H Willis & Son v British Car Auctions Ltd [1978] 2 All ER 392 …. 5.53 R Lowe Lippmann Figdor & Franck (a firm) v AGC (Advances) Ltd [1992] 2 VR 671 …. 19.43 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254 ALR 606 …. 22.31, 22.37, 22.41, 22.45, 22.58, 24.101 — v Parker (1992) 29 NSWLR 448 …. 23.80 Radstock Co-operative & Industrial Society Ltd v Norton-Radstock Urban District Council [1968] Ch 605 …. 25.54, 25.99 Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419 …. 9.32 Ragg v Palmer [2016] NSWDC 14 …. 13.20 Railtrack plc v Wandsworth London Borough Council [2001] EWCA Civ 1236 …. 25.85 Railway Commissioner v Corben [1939] SR (NSW) 55 …. 11.106 Ralph v Strutton [1969] Qd R 348 …. 9.89 Ramsay v Larsen (1964) 111 CLR 16; [1964] ALR 1121 …. 6.53, 6.54, 9.70, 9.75, 20.67 Ramsey v Vogler [2000] NSWCA 260 …. 20.50, 20.54 Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; 167 ALR 224 …. 22.27, 22.39, 22.46 Rands v McNeil [1955] 1 QB 253 …. 26.7 Ranieri v Ranieri [1973] 7 SASR 418 …. 13.65 Rapier v London Tramways Co [1893] 2 Ch 588 …. 25.36 Ratcliffe v Evans [1892] 2 QB 524 …. 22.14, 24.89, 24.91, 24.96 Rawlinson v Rice [1998] 1 NZLR 454 …. 18.60 Rawlinson & Brown Pty Ltd v Witham (1995) Aust Torts Reports ¶81-341; NSW ConvR ¶55-740 …. 19.26, 19.38 Read v Croydon Corporation [1938] 4 All ER 631 …. 18.26 — v Great Eastern Railway Co (1868) LR 3 QB 555 …. 16.8 — v Lyons & Co Ltd [1947] AC 156 …. 9.122

Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417 …. 22.27, 22.30, 22.33, 22.52, 22.53, 23.126 Reckitt & Colman Products Ltd v Borden Inc [1990] 1 All ER 873; [1990] 1 WLR 491 …. 24.7, 24.8, 24.24 Redding v Lee (1983) 151 CLR 117; 47 ALR 241 …. 15.25, 15.138 Redgrave v Hurd (1881) 20 Ch D 1 …. 19.2 Reece v Reece (1994) 19 MVR 103 …. 15.116 Rees v Sinclair [1974] 1 NZLR 180 …. 9.111 Reeve v Brisbane City Council [1995] 2 Qd R 661 …. 10.57 — v Palmer (1858) 28 LJ CP 168; 141 ER 33 …. 5.57 Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1 …. 15.100, 22.22 Reid v Smith (1905) 3 CLR 656; 12 ALR 126 …. 5.4 Reinhold v New South Wales Lotteries Corporation (No 2) (2008) 82 NSWLR 762 …. 21.42 Rejfek v McElroy (1965) 112 CLR 517 …. 3.38 Renner v Orchard [1967] QWN 3 …. 15.61 Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 …. 23.89 Rentokil Pty Ltd v Channon (1989) 19 NSWLR 417 …. 19.32 Reynolds v Aluma-Lite Products Pty Ltd (2010) Aust Torts Reports ¶82-072 …. 5.94 — v Clarke (1725) 1 Stra 634; 93 ER 747 …. 2.13 Rhodes v OPO [2015] UKSC 32 …. 7.5 Rich v Queensland; Samin v Queensland (2001) Aust Torts Reports ¶81-626 …. 20.82 Richard Ellis (WA) Pty Ltd v Mullins Investments Pty Ltd (1995) Aust Torts Reports ¶81-319 …. 19.52 Richards v Butcher (1890) 7 RPC 288 …. 24.91 — v Forsyth [2007] VSCA 227 …. 8.24 — v Victoria [1969] VR 136 …. 9.70 Richardson v Norris Smith Real Estate Ltd [1971] 1 NZLR 152 …. 19.26 Richmond City Council v Scantelbury [1991] 2 VR 38 …. 25.11 Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9 …. 15.117 Ridis v Strata Plan 10308 [2005] NSWCA 246 …. 11.78 Rigby v Chief Constable of Northamptonshire [1985] 2 All ER 985; [1985] 1 WLR 1242 …. 6.42, 6.43 Rigg v Alietti [1982] WAR 203 …. 26.19 Riley v Organ [1921] St R Qd 28 …. 24.60 Rimmer v Liverpool City Council [1985] QB 1 …. 9.21 Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports ¶81-231 …. 6.9 Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 …. 3.9, 3.11, 3.27, 3.31

Roach v Yates [1937] 3 All ER 442; [1938] 1 KB 256 …. 15.89 Roads and Traffic Authority v Royal (2008) 245 ALR 653; 82 ALJR 870 …. 1.61, 12.28, 12.32 Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 …. 9.2, 9.4, 9.6, 9.12, 9.18, 9.19, 10.39, 10.135, 11.1, 11.2, 11.48, 11.52, 11.54, 11.59, 11.62 — v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 …. 10.134, 10.138 Roads and Traffic Authority (NSW) v Rolfe [2010] NSWSC 714 …. 10.150 Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177 …. 9.109 Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 …. 23.33, 23.39, 23.51, 23.53, 23.54, 23.58 — v Roberts (1864) 5 B & S 384; 122 ER 874 …. 12.10 — v Ramsbottom [1980] 1 All ER 7 …. 6.66, 11.12 Robertson v B H Maclachlan Pty Ltd (1985) 58 ALR 668; 59 ALJR 409 …. 11.80 — v Robin [1967] SASR 151 …. 16.27 — v Swincer (1989) 52 SASR 356 …. 9.77 Robinson v Balmain New Ferry Co Ltd [1910] AC 295 …. 3.63, 6.52 — v Kilvert (1889) 41 Ch D 88 …. 25.51, 25.98 — v Post Office [1974] 2 All ER 737; [1974] 1 WLR 1176 …. 12.66 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 …. 11.95 Roblin v The Public Trustee for the Australian Capital Territory [2015] ACTSC 100 …. 5.3 Robson v Hallett [1967] 2 QB 939 …. 4.28 — v Leischke (2008) 72 NSWLR 98 …. 25.16, 25.72 Roche v Kigetzis (2015) 72 MVR 67 …. 11.82 Roddan v Corrections Corporation of Australia Pty Ltd [2001] WASC 196 …. 3.47 Rodrigues v Ufton (1894) 20 VLR 539 …. 4.6 Roe v Minister of Health [1954] 2 QB 66; [1954] 2 All ER 131 …. 8.9, 9.95, 9.101, 11.17, 11.56, 11.110, 20.18, 20.68 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 …. 23.4, 23.6 Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184 …. 23.41, 23.59, 23.128, 23.138, 23.139 — v Rawlings [1969] Qd R 262 …. 1.25 — v Whitaker (1992) 175 CLR 479; 109 ALR 625 …. 6.22, 9.92, 9.95, 9.97, 11.15, 11.71, 11.73, 11.75, 11.77, 13.81, 13.90, 13.92, 23.139 Roggenkamp v Bennett (1950) 80 CLR 292 …. 13.48, 13.50, 13.61, 13.64 Rokich v Gianoli (WASC, Pidgeon, Murray and Parker JJ, 4 March 1997, unreported) …. 26.17 Rolfe v Investec Bank (Aust) Ltd [2014] VSCA 38 …. 5.61 Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340 …. 24.11 Roman Catholic Church v Koffman (1996) Aust Torts Reports ¶81-399 …. 9.72

Romano v Spagnol (NSWCA, Kirby P, Meagher and Cole JJA, 17 October 1994, unreported) …. 26.6 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263 …. 9.7, 9.11, 9.12, 9.18, 11.43, 11.51, 11.60, 11.64 Ronald v Harper (1910) 11 CLR 63 …. 11.94 Rondel v Worsley [1969] 1 AC 191 …. 9.111 Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367 …. 24.75, 24.78, 24.81, 24.84 Rootes v Shelton (1967) 116 CLR 383 …. 13.48, 13.60, 13.66, 13.95 Rooth v Wilson (1817) 1 B & Ald 59; 106 ER 22 …. 26.27 Rose v Plenty [1976] 1 WLR 141 …. 20.35, 20.36 Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238 …. 5.53 Rosecrance v Rosecrance (1995) 105 NTR 1 …. 15.66, 15.94 Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577; [2001] HCA 18 …. 9.96, 11.42, 11.71, 11.77, 12.45, 12.88, 12.89 Ross v Caunters [1980] Ch 297; [1979] 3 All ER 580 …. 9.103, 10.99 Roswell v Prior (1701) 12 Mod 635; 88 ER 1537 …. 25.14 Rosza v Samuels [1969] SASR 205 …. 3.31 Rothwell v Chemical & Insulating Co Ltd [2006] 4 All ER 1161 …. 1.15 Rowan v Cornwall (No 5) (2002) 82 SASR 152 …. 22.74, 23.55, 23.56 Royal v Smurthwaite (2007) 47 MVR 401 …. 1.62 Royal Automobile Association of South Australia (Inc) v Hancock [1939] SASR 60 …. 24.11 Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95 …. 12.9, 24.90 Royal Commission on Thomas Case, Re [1982] 1 NZLR 252 …. 7.15 RT & YE Falls Investments Pty Ltd v New South Wales [2007] NSWCA 18 …. 19.52 Ruddock v Taylor (2003) 58 NSWLR 269 …. 3.46, 3.74 — v — (2005) 222 CLR 612; 221 ALR 32 …. 3.61, 3.64, 3.74 Rufo v Hosking (2004) 61 NSWLR 678 …. 12.18, 12.19 Ruhan v Water Conservation and Irrigation Commission (1920) 20 SR (NSW) 439 …. 25.7 Rural Export and Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 …. 2.13, 5.18 Russell v Edwards (2006) 65 NSWLR 373 …. 13.35, 13.36 — v London & South Western Railway (1908) 24 TLR 548 …. 11.102 — v Wilson (1923) 33 CLR 538 …. 5.59 Rutherford v Attorney-General [1976] 1 NZLR 403 …. 9.123 Ruthning v Ferguson [1930] St R Qd 325 …. 26.39 Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486 …. 20.48 — v Electricity Trust of South Australia (No 1) (1987) 47 SASR 220 …. 11.66

Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330 …. 1.7, 9.121, 25.38 S S v Attorney-General [2003] 3 NZLR 450 …. 20.17 — v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217; 216 ALR 252 …. 20.79 S J Sanders Pty Ltd v Schmidt [2012] QCA 358 …. 11.30 S Pearson & Son Ltd v Dublin Corporation [1907] AC 351 …. 19.80 Sachs v Miklos [1948] 2 KB 23 …. 5.86, 5.87 Sadcas Pty Ltd v Business and Professional Finance Pty Ltd [2011] NSWCA 267 …. 5.49, 5.83 Sadler v Madigan [1998] VSCA 53 …. 3.51 Sahade v Bischoff [2015] NSWCA 418 …. 7.13 Sai Teys McMahon Real Estate Pty Ltd v Queen Street Apartments Pty Ltd [2007] QSC 264 …. 24.43 Samios v Repatriation Commission [1960] WAR 219 …. 9.101, 20.18, 20.68 Samuelson v Producers Distributing Co Ltd (1931) 48 RPC 580; [1931] 1 All ER 74 …. 24.33 San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340; 68 ALR 161 …. 10.13, 19.18, 19.30, 19.33, 19.34, 19.51 Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 …. 18.51, 18.54, 18.57, 18.60, 24.3, 24.4, 24.5 Sands v South Australia [2013] SASC 44 …. 7.26 Sarch v Blackburn (1930) 47 TLR 25 …. 26.14 SBEG v Commonwealth (2012) 208 FCR 235; 295 ALR 81 …. 9.85 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 …. 11.102, 11.110 Schemmell v Pomeroy (1989) 50 SASR 450 …. 5.23, 5.40, 5.50 Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518 …. 18.18 Schimke v Clements (2011) 58 MVR 390 …. 13.24, 16.23, 16.26, 16.44 Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 …. 24.90, 24.93, 24.94, 24.95 Schloendorf v Society of New York Hospital 105 NE 92 (1914) …. 6.14 Schneidas v Corrective Services Commission (NSWSC, Lee J, 8 April 1983, unreported) …. 6.50 Scholefield v Bates [1958] SASR 317 …. 16.34 Schuller v S J Webb Nominees Pty Ltd (2015) 124 SASR 152 …. 9.16, 13.51, 13.56, 13.64, 18.28 Schultz v McCormack [2015] NSWCA 330 …. 9.7, 11.63, 13.94 Schweizer v Central Hospital 53 DLR (3d) 494 (1974) …. 6.16 Scott v CAL No 14 Pty Ltd (t/as Tandara Motor Inn) (No 2) (2007) 17 Tas R 331; 256 ALR 521 …. 9.16 — v Davis (2000) 204 CLR 333; 175 ALR 217 …. 20.6, 20.17, 20.58 — v Heathwood [1953] St R Qd 91 …. 15.141 — v Pedler (2003) 74 ALD 424; [2003] FCA 650 …. 24.4

— v — (2004) 80 ALD 283; [2004] FCAFC 67 …. 24.4 — v Shepherd (1773) 2 Wm B1 892; 96 ER 525 …. 2.2, 2.13, 2.14, 3.5 Seafolly Pty Ltd (ACN 001 537 748) v Madden (2012) 297 ALR 337 …. 23.81, 24.96 Searle v Wallbank [1947] AC 341 …. 26.34, 26.35, 26.36, 26.37, 26.38 Secretary, Department of Health and Community Services v J W B & S M B (Marion’s Case) (1992) 175 CLR 218 …. 3.11, 6.13, 6.14, 6.19, 6.20, 6.22 Sedleigh-Denfield v O’Callaghan [1940] AC 880 …. 25.1, 25.2, 25.3, 25.8, 25.10, 25.37, 25.38, 25.46, 25.62, 25.68, 25.82 Seiwa Pty Ltd v Owners Strata Plan 35042 (2006) 12 BPR 23,673 …. 18.15, 18.30 Semenov v Pirvu [2011] VSC 605 …. 5.75 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 …. 22.61 Seton Laing & Co v Lafone (1887) 19 QBD 68 …. 5.54 Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227 …. 16.29 — v Seymour (1996) 40 NSWLR 358 …. 14.51 Shannon v New South Wales [2015] NSWDC 69 …. 4.9 Shapiro v La Morta (1923) 40 TLR 201 …. 24.94 Sharman v Evans (1977) 138 CLR 563; 13 ALR 57 …. 15.61, 15.63, 15.64, 15.66, 15.80, 15.84, 15.117, 15.151, 15.152 Sharp v Paramatta City Council (2015) 209 LGERA 220; [2015] NSWCA 260 …. 9.12, 13.70 Shaw v Thomas [2010] NSWCA 169 …. 11.44, 11.86 Shearman v Folland [1950] 2 KB 43 …. 15.27 Shedlezki v Bronte Bakery Pty Ltd (1970) 72 SR (NSW) 378 …. 18.36, 18.38 Sheen v Fields Pty Ltd (1984) 51 ALR 345; 58 ALJR 93 …. 9.52 Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 …. 4.68, 25.70, 25.71 Shelley v Szelley [1971] SASR 430 …. 13.14 Shellharbour City Council v Rigby (2006) 150 LGERA 11; Aust Torts Reports ¶81-864 …. 11.31 Sherman v Condon [2014] QDC 189 …. 4.68 — v Nymboida Collieries Pty Ltd (1963) 109 CLR 580 …. 18.34 Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 …. 23.105, 23.107, 23.109 Shiels v Cruikshank [1953] 1 All ER 874; [1953] 1 WLR 533 …. 16.22 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 …. 9.5 Short v City Bank of Sydney (1912) 15 CLR 148 …. 24.43 Shrimp v Landmark Operations Ltd (2007) 163 FCR 510 …. 21.37 Shuttleworth v Vancouver Hospital [1927] 2 DLR 573 …. 25.17 Sibley v Kais (1967) 118 CLR 424; [1968] ALR 158 …. 11.78, 11.80, 13.24 — v Milutinovic (1990) Aust Torts Reports ¶81-013 …. 3.13

Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1970] 2 NSWR 47 …. 24.5 — v — [1971] 1 NSWLR 760 …. 24.79 Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871; [1985] 1 All ER 643 …. 9.95 Sienkiewicz v Greif (UK) Ltd; Willmore v Knowsley Metropolitan Borough Council [2011] 2 WLR 523 …. 12.47 Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; [1958] 1 WLR 743 …. 23.83, 23.87 Silservice Pty Ltd v Supreme Bread Pty Ltd (1949) 50 SR (NSW) 127 …. 25.89 Sim v Daily Telegraph Ltd [1968] 2 QB 157 …. 22.47 — v Stretch [1936] 2 All ER 1237 …. 22.38, 22.41 Simmons v Story [2001] VSCA 187 …. 9.103 Simms v Leighy Rugby Football Club [1969] 2 All ER 923 …. 13.66 Simon v Condran [2013] NSWDC 32 …. 6.43, 26.23 Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 …. 15.42 Simpson v Bannerman (1932) 47 CLR 378 …. 26.14, 26.19 — v Grundy [2011] QSC 299 …. 9.61 Simpson (by her tutor Simpson) v Diamond [2001] NSWSC 925 …. 15.73 Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 …. 23.67 — v Preston [1970] WAR 186 …. 19.80 — v William Arnott Pty Ltd; Kell & Rigby Pty Ltd (Third Party) (No 2) (1963) 64 SR (NSW) 88 …. 9.38 Singer Manufacturing Co v Loog (1882) 8 App Cas 15 …. 24.19 Singleton v John Fairfax & Sons Ltd [1983] 2 NSWLR 722 …. 23.121 Six Carpenters’ Case, Re (1610) 8 Co Rep 146a; 77 ER 695 …. 4.38 SJ Weir Ltd v Bijok (2011) 112 SASR 127 …. 11.110, 25.19 Skelton v Collins (1966) 115 CLR 94 …. 15.26, 15.80, 15.84, 15.119, 15.122, 15.127 Sklavos v Australasian College of Dermatologists [2016] FCA 179 …. 10.66 Slater v Swann (1730) 2 Stra 872; 93 ER 906 …. 5.27 Slaveski v Victoria [2010] VSC 441 …. 3.7, 3.22, 3.65, 5.21, 5.73, 5.77 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585 …. 18.3, 18.4, 18.12, 18.13, 18.14, 18.30 Smith v Austin Lifts Ltd [1959] 1 WLR 100 …. 9.38, 9.46 — v Brambles Australia Ltd [2011] NSWSC 963 …. 9.41 — v Capella State High School Parents and Citizens Association [2004] QSC 34 …. 26.4, 26.10, 26.33 — v Charles Baker & Sons [1891] AC 325 …. 9.32, 13.49, 13.51 — v Eric S Bush [1990] 1 AC 831 …. 1.56, 9.92

— v Jenkins (1970) 119 CLR 397 …. 11.6, 13.72 — v Leech Brain & Co Ltd [1962] 2 QB 405 …. 12.66 — v Leurs (1945) 70 CLR 256; [1945] ALR 392 …. 9.67, 9.80, 9.81, 10.128 — v McGuiggan (1863) 2 SCR (NSW) 268 …. 22.86 — v O’Byrne (1894) 5 QLJ 126 …. 6.54 — v Retirement Benefits Fund Investment Trust (1994) Aust Torts Reports ¶81-286 …. 11.100 — v Spooner (1810) Taunt 246; 128 ER 98 …. 24.88 — v Stages [1989] AC 928; [1989] 2 WLR 529 …. 20.32 — v State Bank of New South Wales Ltd (2001) 188 ALR 729 …. 19.32, 19.51 — v Stone (1647) Style 65; 82 ER 533 …. 2.17, 4.40, 4.42 — v Streatfield [1913] 3 KB 764 …. 23.56 — v Williams (2006) 47 MVR 169 …. 26.38 — v Zhong (2015) 73 MVR 64 …. 15.70 Smythe v Reardon [1949] St R Qd 74 …. 6.10, 19.84 Snape v Reid (1984) Aust Torts Reports ¶80-620 …. 15.94 Sneddon v Speaker of the Legislative Assembly [2011] NSWSC 508 …. 10.76 Soanes v Plessing [1985] 2 Qd R 55 …. 6.50 Soblusky v Egan (1960) 103 CLR 215 …. 20.58 Solloway v McLaughlin [1938] AC 247 …. 5.83, 5.87 Solomons v R Gertzenstein Ltd [1954] 2 QB 243 …. 18.24 Somerville v Walsh (NSW Court of Appeal CA 40321 of 1997, 26 February 1998) …. 10.105 Sony Music Australia Ltd v Tansing (t/as Apple House Music) (1993) 27 IPR 649 …. 24.25 South Australia v Johnson (1982) 42 ALR 161 …. 19.58, 19.61, 19.86 South Australia v Lampard-Trevorrow (2010) 106 SASR 331 …. 18.56 South Australian Co v Corporation of the City of Port Adelaide [1914] SALR 16 …. 25.65 South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 …. 22.87, 23.84 South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 …. 9.46 South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 …. 9.15 South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 …. 24.47, 24.52 Southern Portland Cement Ltd v Cooper (1973) 129 CLR 295; [1974] AC 623; (1973) 2 ALR 113 …. 9.9 Southern Properties (WA) Pty Ltd v Executive Director of Department of Conservation and Land Management (2012) 42 WAR 287 …. 11.68, 25.3, 25.58 Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182 …. 1.14, 2.2, 4.15 Southwark London Borough Council v Tanner [1999] 4 All ER 449 …. 25.40 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 …. 18.8, 18.12, 18.17, 18.37

Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 …. 10.78 Spautz v Butterworth (1996) 41 NSWLR 1 …. 3.68, 6.55 Speed v Thomas Swift & Co Ltd [1943] KB 557 …. 9.43 Spira v Commonwealth Bank (2003) 57 NSWLR 544 …. 24.79 Sprod v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports ¶81-921 …. 20.45, 20.48 SSYBA Pty Ltd v Lane [2013] WASC 445 …. 4.51, 4.57 St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666 …. 21.37 St George’s Healthcare NHS Trust v S [1998] 3 All ER 673 …. 6.25 St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; 11 ER 1483 …. 25.30, 25.32, 25.36, 25.40, 25.66 St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185 …. 1.24, 1.25, 9.77, 9.79 Standard Chartered Bank v Pakistan National Shipping Corporation (Nos 2 and 4) [2002] 3 WLR 1547 …. 19.90 Stanley v Layne Christensen Co [2006] WASCA 56 …. 24.69 — v Powell [1891] 1 QB 86 …. 2.4, 2.8 State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 …. 22.60, 22.76 State Government Insurance Commission (SA) v Trigwell (1979) 142 CLR 617; 26 ALR 67 …. 26.34, 26.35, 26.36, 26.38 State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539; 49 ALR 247 …. 16.47 State Rail Authority of New South Wales v Chu (2008) Aust Torts Reports ¶81-940 …. 12.77 — v Wiegold (1991) 25 NSWLR 500 …. 12.9, 12.82 Stephens v Myers (1830) 4 Car & P 349; 172 ER 735 …. 3.25, 3.76 — v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80 …. 23.56, 23.58, 23.72, 23.73 Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152 …. 12.66 Stern v Piper [1997] QB 123; [1996] 3 All ER 385 …. 23.61 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513 …. 9.47, 10.13, 20.8, 20.13, 20.14, 20.15, 20.17 Stevenson v Basham [1922] NZLR 225 …. 7.3 Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101 …. 20.12 Stewart v Ackland (2015) 10 ACTLR 207; 293 FLR 341 …. 13.70 — v Layton (1992) 111 ALR 687 …. 9.105 Stillman v Rusbourne [2015] NSWCA 410 …. 9.115 Stingel v Clark (2006) 226 CLR 442; 228 ALR 229 …. 14.43 Stoakes v Brydges [1958] QWN 5 …. 25.45, 25.52, 25.98 Stockdale v Hansard (1839) 9 Ad & E 1; 112 ER 1112 …. 23.20 Stocker v McElhinney (No 2) [1961] NSWR 1043; (1961) 79 WN (NSW) 541 …. 23.106

Stocks v Retirement Benefits Fund Board [2007] TASSC 8 …. 19.61 Stockwell v Victoria [2001] VSC 497 …. 25.7, 25.35, 26.39 Storey v Ashton (1869) LR 4 QB 476 …. 20.30 Stormer v Ingram (1978) 21 SASR 93 …. 25.42, 26.4 Storozuk v Commissioner for Railways [1963] SR (NSW) 581 …. 18.14 Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651 …. 21.17 Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 …. 5.90, 5.94 Strasberg v Westfield Ltd [20012] NSWSC 689 …. 22.72 Streets Ice Cream Pty Ltd v Australian Asbestos Installations Pty Ltd [1967] 1 NSWR 50 …. 9.126 Stringer v Flehr & Walker (2003) Aust Torts Reports ¶81-718 …. 9.103 Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420 …. 8.19, 9.12, 12.22, 12.24, 12.33, 12.34, 12.35, 12.40, 12.42 Stuart v Bell [1891] 2 QB 341 …. 23.40 — v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432 …. 9.6, 10.126, 10.129, 10.141, 10.144 Stubbings v Webb [1993] AC 498; [1993] 1 All ER 322 …. 14.43 Sturch v Willmott [1997] 2 Qd R 310 …. 15.104 Sturges v Bridgman (1879) 11 Ch D 852 …. 25.17, 25.26, 25.43, 25.60, 25.64, 25.70, 25.101 Sturton v Richardson (1844) 13 M & W 17; 153 ER 7 …. 15.6 Suley v City Joiners Pty Ltd (1970) 65 QJPR 141 …. 15.117 Sullivan v Gordon (1999) 47 NSWLR 319 …. 15.104 — v Moody (2001) 207 CLR 562; 183 ALR 404 …. 1.10, 9.1, 10.2, 10.15, 10.21, 10.24, 10.26, 10.27, 10.28, 10.29, 10.30, 10.43, 10.60, 10.99, 10.115, 10.131, 10.143, 10.145, 12.86, 20.80 Suncorp Insurance & Finance v Blakeney (1993) Aust Torts Reports ¶81-253 …. 13.61 Sungravure Pty Ltd v Meani (1964) 110 CLR 24 …. 13.24 — v Middle East Airlines Airliban SAL (1975) 134 CLR 1 …. 22.45, 22.46, 22.64, 22.73 Suosaari v Steinhardt [1989] 2 Qd R 477 …. 9.125 Sutherland Shire Council v Becker (2006) 150 LGERA 184; [2006] NSWCA 344 …. 10.21, 25.18, 25.39 — v Heyman (1985) 157 CLR 424; 60 ALR 1 …. 9.19, 10.16, 10.107, 10.122, 10.127, 10.128, 10.136, 14.24, 19.30 — v Major [2015] NSWCA 243 …. 15.152 Suvaal v Cessnock City Council (2003) 200 ALR 1 …. 8.25 Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 …. 8.24, 11.88, 11.93 Swan v South Australia (1994) 62 SASR 532 …. 9.90 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46 …. 20.8, 20.17, 20.56 Swenson v Shire of Drayton [1932] St R Qd 98 …. 6.47 Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 48 WAR 376; 318 ALR 666; [2015]

WASCA 35 …. 9.120, 9.124, 11.15, 11.102 Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796 …. 24.99 Sydney Children’s Hospital Network (Randwick and Westmead) v X (2013) 49 Fam LR 330 …. 6.20 Sydney City Council v Bosnich [1968] 3 NSWR 725 …. 17.7 Sydney County Council v Dell’Oro (1974) 132 CLR 97; 4 ALR 417 …. 11.30 Sydney Municipal Council v Bourke [1895] AC 433 …. 25.84 Sydney Refractive Eye Surgery Centre Pty Ltd v Beaumont [2004] NSWSC 164 …. 23.130 Sydney South West Area Health Services v MD (2009) 260 ALR 702 …. 13.83 Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20 …. 10.131, 10.141, 12.64 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; [2002] FCAFC 157 …. 24.14 Sykes v Midland Bank Executor & Trustee Co Ltd [1971] 1 QB 113 …. 9.108 — v Reserve Bank of Australia (1998) 158 ALR 710 …. 19.108 Symes v Mahon [1922] SASR 447 …. 3.58, 3.67, 6.12 Szanto v Melville [2011] VSC 574 …. 23.97 T T (Adult: Refusal of Treatment), Re [1993] Fam 95 …. 6.25 T J Larkins & Sons v Chelmer Holdings Pty Ltd [1965] Qd R 68 …. 19.78 Tabcorp Holdings Ltd v Dank [2011] QCA 253 …. 9.43 Tabet v Gett (2010) 240 CLR 537; 265 ALR 227; 84 ALJR 292 …. 12.1, 12.19 Taccone v Electric Power Transmission Pty Ltd [1962] Qd R 545 …. 15.65 Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 …. 19.92 Taff Vale Railway Co v Jenkins [1913] AC 1 …. 16.21 Takaro Properties Ltd v Rowling [1978] 2 NZLR 314 …. 10.10 TAL Structural Engineers Pty Ltd v Vaughan Constructions Pty Ltd [1989] VR 545 …. 18.40 Talbot and Olivier (a firm) v Witcombe (2006) 32 WAR 179 …. 10.105 Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 …. 24.20, 24.26 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 …. 8.3, 10.1, 10.7, 10.28, 10.30, 10.31, 10.42, 10.44, 10.48, 10.50, 10.53, 10.54, 10.55, 10.56, 10.58, 10.59, 10.61, 10.62, 10.64, 10.65, 10.71, 11.39, 11.40, 11.41, 11.43 Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51 …. 24.23 Tassone v Kirkham [2014] SADC 134 …. 22.36 Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 …. 25.85 Tavener Rutledge Ltd v Trexapalm Ltd [1977] RPC 275 …. 24.31 Taylor v Director of the Serious Fraud Office [1999] 2 AC 177 …. 23.24

— v O’Connor [1971] AC 115 …. 16.36 — v Owners Strata Plan No 11564 (2014) 253 CLR 531; 306 ALR 547 …. 16.45, 16.49 — v Stratford [2004] 2 Qd R 224 …. 14.9 TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 …. 4.23, 4.30, 4.33, 4.52, 4.62, 4.64, 6.6, 6.9 Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 138 CLR 645 …. 19.84 Telatax Consultants v Williams [1989] 1 NZLR 698 …. 23.28 Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 …. 23.42 Telnikoff v Matusevitch [1992] 2 AC 343 …. 23.90 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 …. 24.26 Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 …. 10.139, 19.18, 19.19, 19.20, 19.23, 19.24, 19.25, 19.27, 19.31, 19.36, 19.41 Tetley v Chitty [1986] 1 All ER 663 …. 25.12 Teubner v Humble (1963) 108 CLR 491 …. 15.83, 15.120, 15.124 Tharpe v Stallwood (1843) 5 Man & G 760; 134 ER 766 …. 5.8 Thatcher v Charles (1961) 104 CLR 57 …. 15.83 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 …. 23.1, 23.71, 23.72, 23.73 Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627 …. 23.88 — v High (1960) SR (NSW) 401 …. 5.57 — v Iselin [1972] QWN 15 …. 15.75 — v Kula [2001] WASCA 362 …. 15.104 — v Quartermaine (1887) 18 QBD 685 …. 13.49 Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391 …. 6.67 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1 …. 21.5, 21.8, 22.78, 23.94 — v Canik (1998) 145 FLR 438 …. 10.105 — v Faraonio (1979) 24 ALR 1 …. 15.150 — v Johnson & Johnson Pty Ltd [1991] 2 VR 449 …. 9.123 — v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 …. 11.70 — v ‘Truth’ and ‘Sportsman’ Ltd (No 4) (1932) 34 SR (NSW) 21 …. 22.61 — v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR 452 …. 9.10, 9.14, 13.15 Thompson-Schwab v Costaki [1956] 1 WLR 335; [1956] 1 All ER 652 …. 25.16 Thornton v Lessbrook Pty Ltd (t/as Transair) [2010] QSC 308 …. 16.43 — v Sweeney (2011) 59 MVR 155 …. 11.58 — v Wollondilly Mobile Engineering Pty Ltd [2012] NSWSC 621 …. 20.70 Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513 …. 18.51, 18.56, 18.58, 18.61, 18.62

Tipperary Developments Pty Ltd v Western Australia (2009) 258 ALR 124 …. 19.4, 19.52 Tippett v Fraser (1999) 74 SASR 522 …. 17.8 TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 …. 9.41, 9.42 TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; 53 ALJR 267 …. 11.97, 12.53 Tobin v Dodd [2004] WASCA 288 …. 10.105 Todd v Swan Television and Radio Broadcasters Pty Ltd (2001) 25 WAR 284 …. 22.86 Todman v Victa Ltd [1982] VR 849 …. 9.122 Todorovic v Waller (1981) 150 CLR 402; 37 ALR 481 …. 15.25, 15.36, 15.141, 15.142 Toll Pty Ltd v Dakic [2006] NSWCA 58 …. 1.62, 12.31 Tolley v J S Fry & Sons Ltd [1931] AC 333 …. 22.14, 22.57 Toogood v Spyring (1834) 1 CM & R 181; 149 ER 1044 …. 23.33, 23.36, 23.58 Toohey v Hollier (1955) 92 CLR 618 …. 16.31, 17.10, 17.17 Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 …. 22.58 Torette House Pty Ltd v Berkman (1940) 62 CLR 637 …. 25.9 Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 …. 24.54 Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts Reports ¶81-292 …. 9.123 Tow & Salvage Ltd v Murray [1984] 2 NZLR 144 …. 6.47 Towne v Eisner 245 US 418 (1918) …. 22.36 Trade Practices Commission v Queensland Aggregates Pty Ltd (1982) 44 ALR 391 …. 20.55 Traffic Calming Australia Pty Ltd v CTS Creative Traffic Solutions Pty Ltd [2015] VSC 741 …. 24.55 Traian v Ware [1957] VR 200 …. 25.68 Trailways Transport Ltd v Thomas (1996) 2 NZLR 443 …. 5.83 Transco plc v Stockport Metropolitan Borough Council [2003] 3 WLR 1467 …. 1.7, 25.31, 25.38 Travel Compensation Fund v Tambree (t/as R Tambree & Associates) (2005) 224 CLR 627; 222 ALR 263 …. 1.29, 1.61, 12.30, 12.31 Travers v Gloucester Corporation [1947] KB 71 …. 9.21 Travis v Vanderloos (1984) 54 LGRA 268 …. 10.10 Treloar v Wickham (1961) 105 CLR 102 …. 15.136 Trevett v Lee [1955] 1 All ER 406; [1955] 1 WLR 113 …. 25.59, 25.88 Trevitt v NSW TAFE Commission [2001] NSWCA 363 …. 3.19, 3.81, 3.83 Triggell v Pheeney (1951) 82 CLR 497 …. 23.120, 23.123, 23.124 Trobridge v Hardy (1955) 94 CLR 147; [1956] ALR 15 …. 3.46, 7.16 Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 …. 20.26

Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 …. 22.80, 22.88 Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684 …. 3.22, 3.29 Tucker v McCann [1948] VLR 222 …. 11.78, 18.18 — v Tucker [1956] SASR 297 …. 11.10 Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 …. 23.46 — v News Group Newspapers Ltd [2006] 1 WLR 3469 …. 23.132 Tweed Shire Council v Howarth [2009] NSWCA 103 …. 9.79 Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 34 IPR 225 …. 24.22, 24.27 U Ultramares Corporation v Touche (1931) 174 NE 441 …. 10.81 Underhill v Sherwell [1997] NSWCA 325 …. 6.31 Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2 QB 205 …. 5.46, 5.51 Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385 …. 5.33 University of Wollongong v Mitchell (2003) Aust Torts Reports ¶81-708 …. 11.51 Unsworth v Commissioner for Railways (1958) 101 CLR 73 …. 21.24 Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127 …. 22.89 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 …. 1.35, 15.19, 15.24, 23.115, 23.126 V Vagg v McPhee (2013) 85 NSWLR 154 …. 10.101 Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 …. 9.6, 9.18, 11.2, 11.47, 11.58, 11.60, 13.95 Van den Heuvel v Tucker (2003) 85 SASR 512 …. 9.60 Van Gervan v Fenton (1992) 175 CLR 327; 109 ALR 283 …. 15.90 Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35 …. 18.41, 18.43, 18.45 Vaughan v Benalla Shire (1891) 17 VLR 129 …. 25.7 Veivers v Connolly [1995] Qd R 326 …. 12.13 Venning v Chin (1974) 10 SASR 299; (1975) 49 ALJR 378 …. 2.9, 2.22, 6.60, 6.61 Versic v Conners (1969) 90 WN (NSW) (Pt 1) 331 …. 11.78 Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 …. 1.11, 1.12, 7.23, 7.24 Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222 …. 10.40 Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 …. 24.8, 24.23 Vignoli v Sydney Harbour Casino (2000) Aust Torts Reports ¶81-541 …. 3.62 Villasevil v Pickering (2001) 24 WAR 167 …. 15.86

Vincent v Peacock [1973] 1 NSWLR 466 …. 25.26 — v Woolworths Ltd [2016] NSWCA 40 …. 9.46, 11.44 Vine v Waltham Forest London Borough Council [2000] 4 All ER 169 …. 5.21 Visser v South Australian Housing Trust (1995) 65 SASR 571 …. 9.34 Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170 …. 22.93 Voli v Inglewood Shire Council (1963) 110 CLR 74 …. 1.29, 9.91, 10.115 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 …. 22.23 W W v Eaton [2011] TASSC 4 …. 14.43 W B Anderson & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All ER 850 …. 19.77 Wade Sawmill Pty Ltd v Colenden Pty Ltd (t/as Pilks Pine) [2007] QCA 455 …. 5.93 Wagstaff v Edison Bell Phonograph Corporation (1893) 10 TLR 80 …. 25.89 Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642 …. 9.109 Walker v Tugend (1981) 28 SASR 194 …. 15.37 Walker-Flynn v Princeton Motors Pty Ltd [1960] SR (NSW) 488 …. 15.40 Wallace v Kam [2012] NSWCA 82 …. 12.88, 12.89 — v — (2013) 250 CLR 375; 297 ALR 383 …. 9.97, 11.77, 12.37, 12.58, 12.60, 12.61 — v Powell (2000) 10 BPR 18,481 …. 25.77 Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457 …. 1.11, 1.52, 1.62, 12.11, 12.12 — v Suncorp Metway Insurance Ltd [2010] 2 Qd R 560 …. 15.132 Walsh v Ervin [1952] VLR 361 …. 25.79, 25.80, 25.85, 25.95 Walter v Alltools Ltd (1944) 171 LT 371 …. 3.49 — v Selfe (1851) 4 De G & Sm 315; 64 ER 849 …. 25.40 Wann v Fire and All Risks Insurance Co Ltd [1990] 2 Qd R 596 …. 15.91 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247 …. 14.23, 14.26, 19.115 Warren v Coombes (1979) 142 CLR 531; 23 ALR 405 …. 11.96 Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 …. 23.59, 23.61, 23.70 Waters v Mussig [1986] 1 Qd R 224 …. 15.104 Watkins v Victoria (2010) 27 VR 543 …. 6.30, 6.31, 6.33 Watson v Buckley [1940] 1 All ER 174 …. 9.123 — v Cowen [1959] Tas SR 194 …. 4.42 — v Croft Promo-Sport Ltd [2009] 3 All ER 249 …. 25.26 — v Marshall (1971) 124 CLR 621 …. 3.47, 3.58, 3.59 — v McEwan [1905] AC 480 …. 23.24, 23.26

— v Ramsay [1960] NSWR 462 …. 15.135 Watt v Bretag (1982) 41 ALR 597; 56 ALJR 760 …. 13.46 — v Hertfordshire County Council [1954] 2 All ER 368 …. 11.67 — v Longsdon [1930] 1 KB 130 …. 23.34, 23.40 — v Rama [1972] VR 353 …. 1.22, 9.59 Wattleworth v Goodwood Road Racing Company Ltd [2004] EWHC 140 …. 9.61 Watts v Leach [1973] Tas SR 16 …. 3.80 Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195 …. 9.52, 18.3, 18.13, 18.29, 18.31 Waverley Council v Ferreira (2005) Aust Torts Reports ¶81-818 …. 11.35, 13.11 Waverley Municipal Council v Swain (2002) Aust Torts Reports ¶81-694 …. 11.93 Weaver v Ward (1617) (1617) Hob 134; 80 ER 284 …. 3.3, 6.65 Webb v Bloch (1928) 41 CLR 331 …. 22.78, 23.56 — v Fox (1797) 7 Term Rep 391; 101 ER 1037 …. 5.5 Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235 …. 15.53 Wells v Cooper [1958] 2 QB 265 …. 11.20 Wennhak v Morgan (1888) 20 QBD 635 …. 22.76 Wensink v Marshall (2010) 56 MVR 20 …. 11.82 Wertheim v Cheel (1885) 11 VLR 107 …. 5.31 West v Government Insurance Office (NSW) (1981) 148 CLR 62; 35 ALR 437 …. 11.98, 12.53 — v Peters (1976) 18 SASR 338 …. 2.9, 2.22 Western Australia v Ward (2002) 213 CLR 1 …. 4.9 Western Counties Manure Co v Lawes Chemical Manure Co (1874) LR 9 Ex 218 …. 24.88 Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184 …. 5.89 Weston v Woodroffe (1985) 36 NTR 34 …. 15.125 Westripp v Baldock [1939] 1 All ER 27 …. 4.42 Wheat v E Lacon & Co Ltd [1966] AC 552 …. 9.22 Wheeler v J J Saunders Ltd [1996] Ch 19 …. 25.44 — v New Merton Board Mills Ltd [1933] 2 KB 669 …. 18.38 — v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113 …. 15.45 Wherry v K B Hutcherson Pty Ltd (1987) Aust Torts Reports ¶80-107 …. 25.45, 25.49 Whitaker v Federal Commissioner of Taxation (1996) Aust Torts Reports ¶81-400 …. 15.150 White v Boulton (1791) Peake 113 …. 1.40 — v Connolly [1927] St R Qd 75 …. 3.44, 6.35 — v Jameson (1874) LR 18 Eq 303 …. 25.82 — v Johnston (2015) 87 NSWLR 77 …. 3.13

— v Jones [1995] 2 AC 207 …. 9.103, 10.104 — v Mellin [1895] AC 154 …. 24.91, 24.93, 24.96 — v Riley [1921] 1 Ch 1 …. 24.63 Whitely Ltd v Hilt [1918] 2 KB 808 …. 5.101 Whittaker v Child Support Registrar (2010) 264 ALR 473 …. 3.59 — v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 …. 18.17, 18.26 Whitton v New South Wales [2005] NSWCA 97 …. 9.37 Whitwham v Westminster Brymbo Coal and Coke Co [1896] 1 Ch 894 …. 4.53 Wickham v Associated Pool Builders Pty Ltd (1988) 12 IPR 567 …. 24.26 Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 WLR 295 …. 5.89 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR 23 …. 10.58, 10.70 Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006 …. 12.66 Wilchick v Marks [1934] 2 KB 56 …. 25.14 Wilkinson v Downton [1897] 2 QB 57 …. 7.1, 7.2, 7.4, 7.5, 7.6, 7.7, 14.43, 19.66 Willard King Organisation Pty Ltd v United Telecasters Sydney Ltd [1981] 2 NSWLR 547 …. 24.6 Willcox v Sing [1985] 2 Qd R 66 …. 11.91 Willett v Futcher (2005) 221 CLR 627; 221 ALR 16 …. 15.131 Willey v Synan (1937) 57 CLR 200 …. 5.15 William Leitch & Co v Leydon [1931] AC 90 …. 5.27 Williams v Birmingham Battery and Metal Co [1899] 2 QB 338 …. 16.8 — v Commissioner for Road Transport (1933) 50 CLR 258 …. 13.2 — v Hursey (1959) 103 CLR 30 …. 24.38, 24.69 — v Milotin (1957) 97 CLR 465; [1957] ALR 1145 …. 2.7, 2.10, 2.18, 12.1 — v Morland (1824) 2 B & C 910; 107 ER 620 …. 12.1 — v Natural Life Health Foods Ltd [1998] 2 All ER 577; [1998] 1 WLR 830 …. 19.24 — v Spautz (1992) 174 CLR 509; 107 ALR 635 …. 7.16, 18.41, 18.45, 18.46, 18.47, 18.50 — v Usher (1955) 94 CLR 450 …. 16.38 Williamson v Friend (1901) 1 SR (NSW) (Eq) 133 …. 25.83 Wilsher v Essex Area Health Authority [1987] QB 730 …. 12.45 Wilson v Horne (1999) 8 Tas R 363 …. 2.10, 14.18 — v Lombank Ltd [1963] 1 All ER 740 …. 5.13 — v Marshall [1982] Tas R 287 …. 5.22, 5.28 — v New South Wales (2010) 278 ALR 74 …. 4.32 — v Nilepac Pty Ltd (t/as Vision Personal Training) (Crows Nest) [2011] NSWCA 63 …. 11.68 — v Peisley (1975) 50 ALJR 207 …. 15.151

— v Pringle [1987] QB 237 …. 3.9 — v Tyneside Window Cleaning Co [1958] 2 QB 110 …. 9.38 Wilsons & Clyde Coal Co Ltd v English [1938] AC 57 …. 9.33 Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644 …. 6.61 Winchester v Fleming [1957] 4 All ER 711 …. 17.13, 17.14 Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87 …. 4.52, 4.54 Winkfield, The [1902] P 42 …. 5.89 Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 …. 15.46, 15.49, 25.72, 25.74 — v — [2016] VSCA 187 …. 25.72 Winsmore v Greenbank (1745) Willes 577; 125 ER 1330 …. 17.13, 24.38 Winter v Bennett [1956] VLR 612 …. 6.60 Winterbottom v Wright (1842) 10 M & W 109 …. 1.41 Wishart v Mirror Newspapers Ltd [1964] NSWR 231 …. 23.126 Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222 …. 5.59, 5.95 — v Parkside Health NHS Trust [2003] 3 All ER 932 …. 7.5 Wood v Balfour (2011) 15 BPR 29,773 …. 19.73 Woodland v Essex County Council [2013] UKSC 66 …. 20.17 Woodridge v Sumner [1963] 2 QB 43 …. 13.66 Woods v Martins Bank Ltd [1959] 1 QB 55 …. 19.1 — v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 …. 9.18, 11.62, 11.69, 11.70, 11.87, 13.59, 13.95 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522 …. 1.30, 8.13, 10.15, 10.28, 10.109, 10.111, 10.112, 10.113, 10.115, 10.116, 10.117, 10.118, 14.24, 19.22 Woolley v Dunford (1972) 3 SASR 243 …. 24.43, 24.54 Woolworths Ltd v Crotty (1942) 66 CLR 603 …. 16.4 — v Perrins [2015] QCA 207 …. 9.34, 10.51, 10.72 — v Ryder (2014) 87 NSWLR 593 …. 9.12 WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420 …. 16.2 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 …. 22.50 Wormald v Cole [1954] 1 QB 614 …. 26.24, 26.26 Worth v Gilling (1866) LR 2 CP 1 …. 26.5 Wotton v Queensland (2012) 285 ALR 1; 86 ALJR 246 …. 23.75 Wright v Cedzich (1930) 43 CLR 493 …. 17.13 — v West Australian Trustee & Agency Co Ltd [1987] VR 771 …. 16.47 Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160 …. 10.59

Wyld v Bertram [1970] SASR 1 …. 15.65 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25; 72 ALJR 65 …. 13.25 Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485; 133 ALR 154 …. 15.87, 15.88 Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149 …. 18.12 Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 …. 8.14, 8.15, 8.16, 11.1, 11.35, 11.36, 11.38, 11.39, 11.46, 11.60, 11.83, 11.86 X X v South Australia (No 2) (2005) 91 SASR 258 …. 9.90 X and Y v Pal (1991) 23 NSWLR 26 …. 1.22, 9.98 X (Minors) v Bedfordshire County Council [1995] 2 AC 633 …. 18.8, 18.17, 18.18 XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639 …. 1.36, 4.62, 15.20, 21.7 Y Yakamia Dairies Pty Ltd v Wood [1976] WAR 57 …. 4.53 Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 …. 21.32 Yates Property Corporation Pty Ltd (in liq) v Boland (1998) 85 FCR 84; 157 ALR 30 …. 11.15 Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513 …. 20.69 Yonge v Toynbee [1910] 1 KB 215 …. 1.26 Yorke v Lucas (1985) 158 CLR 661 …. 19.97 Young and Harston’s Contract, Re (1885) 31 Ch D 168 …. 16.4 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 …. 22.14, 22.16, 22.36, 22.38, 22.46, 22.59 Z Zanker v Vartzokis (1988) 34 A Crim R 11 …. 3.21, 3.22, 3.25 Zanner v Zanner (2010) 79 NSWLR 702 …. 9.57, 11.10, 12.34, 12.36, 12.40, 12.42, 12.60, 12.87 Zheng v Cai (2009) 261 ALR 481 …. 15.134 Zhu v Treasurer of New South Wales (2004) 218 CLR 530; 211 ALR 159 …. 24.57, 24.58 Zimitat v Douglas [1979] Qd R 454 …. 3.85 Zoef v Nationwide News Pty Ltd [2015] NSWDC 232 …. 22.68 Zordan v Metropolitan (Perth) Passenger Transport Trust [1963] ALR 513 …. 16.40 Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354 …. 20.48 Zoukra v Lowenstern [1958] VR 594 …. 13.46 Zraika (by his tutor Zraika) v Walsh (No 2) (2014) 66 MVR 588 …. 15.37

Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 …. 20.11 Zurich Australia Insurance Ltd v Rourmanos (2013) 65 MVR 561 …. 15.76 Zwambila v Wafawarova [2015] ACTSC 171 …. 22.22

Table of Statutes References are to paragraph numbers COMMONWEALTH Australian Capital Territory (Self-Government) Act 1988 s 24(3) …. 23.23 Australian Consumer Law …. 1.50, 9.120, 9.128, 10.79, 19.3, 19.93, 19.95, 19.96, 19.97, 19.99, 19.101, 19.102, 19.104, 22.96, 22.97 Ch 3 Pt 3-5 …. 9.128 s 2 …. 19.97, 19.99, 19.113 s 2(2) …. 19.104 s 4 …. 19.107 s 4(2) …. 19.108 s 7 …. 9.128 s 7(1) …. 9.129 s 9(1) …. 9.128 s 9(2) …. 9.128 s 18 …. 1.50, 19.94, 19.98, 19.105, 19.109, 19.110, 19.113, 19.115, 22.95, 22.97, 22.98, 22.99, 24.34, 24.35, 24.36, 24.100 s 18(1) …. 19.95 s 19 …. 22.97, 22.99 s 19(2) …. 22.98 s 19(3) …. 22.98 s 19(4) …. 22.97 s 19(5) …. 22.97 s 138 …. 9.128 s 139 …. 9.128 s 140 …. 9.128 s 141 …. 9.128

s 142 …. 9.130 s 143(1) …. 9.130 s 143(2) …. 9.130 s 236 …. 18.7, 19.110, 19.114 s 236(1) …. 19.110 s 236(2) …. 19.115 Australian Federal Police Act 1979 s 64B …. 20.20 Australian Solicitors Conduct Rules …. 9.116, 9.117 r 2.2 …. 9.117 r 4.1 …. 9.116 Broadcasting Services Act 1992 …. 22.97, 23.94 s 206 …. 22.17 Sch 5 cl 91 …. 22.91, 23.94 Civil Aviation Regulations 1988 …. 3.73 Competition and Consumer Act 2010 …. 1.50, 9.128, 19.93 Pt XI …. 19.93 s 6(3) …. 19.95, 22.96 s 87(2)(a) …. 15.4 s 131(1) …. 19.102 s 131A …. 19.102 s 137A …. 9.128 s 137B …. 19.112 s 139B(2) …. 19.97 Sch 2 …. 9.128, 9.129, 9.130, 19.93, 19.94, 22.95, 24.34 Sch 2 s 18 …. 19.92 Constitution …. 23.72, 23.73, 23.75, 23.76 s 7 …. 23.73 s 24 …. 23.73 s 51(i) …. 6.59 s 64 …. 23.73 s 128 …. 23.73 Copyright Act 1968 …. 24.37 Corporations Act 2001 …. 22.85 s 46 …. 22.85

s 50 …. 22.85 Crimes Act 1914 s 3T …. 4.37 s 3W …. 3.66 s 3Z …. 3.70 Customs Act 1901 …. 3.73 Family Law Act 1975 …. 3.35 s 119 …. 22.76 s 120 …. 17.16 Health Insurance Act 1973 …. 15.139 s 18 …. 15.139 Industrial Relations Act 1988 …. 18.19 s 178 …. 18.19 Insurance Contracts Act 1984 s 66 …. 21.26 Judiciary Act 1903 s 77MA …. 15.144 Migration Act 1958 …. 3.73, 3.74 s 189 …. 3.74 National Consumer Credit Protection Act 2009 s 178 …. 5.16 Navigation (Loading and Unloading) Regulations 1941 …. 18.20 Parliamentary Papers Act 1907 ss 2–4 …. 23.23 Parliamentary Privileges Act 1987 …. 23.23 s 10 …. 23.23 Parliamentary Proceedings Broadcasting Act 1946 s 15 …. 23.23 Personal Property Securities Act 2009 …. 5.17 Pt 2.5 …. 5.17 s 45 …. 5.17 s 147 …. 5.17 Privacy Act 1988 …. 7.29 Royal Commissions Act 1902 s 7 …. 23.31

Safe Work Australia Act 2008 …. 9.56 Safety, Rehabilitation and Compensation Act 1988 …. 9.54 s 45 …. 21.19 Social Security Act 1991 …. 15.138 s 17(1) …. 15.138 s 1178 …. 15.138 s 1184 …. 15.138 Sydney 2000 Games (Indicia and Images) Protection Act 1996 …. 24.57 Taxation Laws Amendment (Structured Settlements and Structured Orders) Act 2002 …. 15.38 Telecommunications Act 1997 s 484 …. 6.48 Sch 3 …. 6.48 Trade Marks Act 1995 s 120 …. 24.37 s 230 …. 24.37 Trade Practices Act 1974 …. 1.50, 9.120, 9.127, 9.128, 19.3, 19.93, 19.112 Pt VA …. 9.127 s 52 …. 1.50, 19.93, 19.94, 19.98, 19.100, 22.95, 22.99, 24.34 s 65A …. 22.99 s 87CB(3) …. 21.37 AUSTRALIAN CAPITAL TERRITORY Age of Majority Act 1974 …. 1.21 s 5 …. 6.19 Building Act 2004 Pt 6 …. 10.119 s 142 …. 14.11 Civil Law (Wrongs) Act 2002 …. 1.51, 13.41 Ch 2 Pt 2.1 …. 13.100 Ch 2 Pt 2.2 …. 13.102 Ch 2 Pt 2.2A …. 13.103 Ch 3 Pt 3.2 …. 10.69 Ch 7A …. 21.32 Ch 9 …. 22.8 Ch 14 …. 15.149

Pt 2.4 …. 16.51 Div 9.3.1 …. 23.102 s 5 …. 11.29 s 15(2) …. 22.81 s 16(3)(a) …. 16.56, 16.57 s 16(3)(b) …. 16.44 s 16(4) …. 16.55 s 16(5) …. 16.57 s 20(1) …. 21.6 s 20(2)(a) …. 21.12 s 20(2)(b) …. 21.12 s 21(1) …. 21.16 s 21(2) …. 21.22 s 21(3) …. 21.22 s 23(a) …. 16.17 s 23(c) …. 16.18 s 23(e) …. 16.18 s 24 …. 16.3 s 26 …. 16.42 s 26(e) …. 16.40 s 27 …. 16.44 s 34 …. 10.59 s 35 …. 19.88 s 35(1) …. 10.45 s 35(2) …. 10.46 s 36(5) …. 13.61 s 40 …. 12.6 s 41 …. 12.3 s 42 …. 11.8 s 43 …. 11.34 s 43(2) …. 11.49 s 44(a) …. 11.64 s 44(b) …. 11.65 s 44(c) …. 11.66 s 45 …. 15.37

s 45(1)(a) …. 12.33 s 45(1)(b) …. 12.57 s 45(2) …. 12.39 s 45(3) …. 12.55 s 45(4) …. 12.57 s 46 …. 12.54 s 47 …. 13.26 s 50(4) …. 13.40 s 51 …. 14.9 s 92 …. 13.33, 16.45 s 94 …. 13.77 s 94(2) …. 13.78 s 95 …. 13.34 s 95(2) …. 13.35 s 95(3) …. 13.41 s 96(2) …. 13.39 s 96(3) …. 13.41 s 97 …. 13.29 s 98 …. 15.81, 16.45 s 99 …. 15.111 s 99(4) …. 15.108 s 100 …. 15.105 s 101 …. 13.6 s 102 …. 25.59 s 102(1) …. 13.6 s 102(2) …. 18.40 s 104 …. 17.9 s 107B(2) …. 21.34 s 107D(1) …. 21.35 s 107E …. 21.40 s 107F(1)(a) …. 21.41 s 110 …. 10.131 s 110(b) …. 10.138 s 111 …. 18.33 s 113 …. 10.148

s 115(d) …. 23.102 s 116 …. 23.8 s 118 …. 22.9 s 118(1) …. 22.26 s 119 …. 22.18 s 120 …. 22.48 s 121 …. 22.84 s 122 …. 22.81 s 123 …. 22.21, 22.22 s 126 …. 23.99 s 129 …. 23.103 s 132 …. 23.133 s 134(1) …. 23.2 s 134(2) …. 23.49 s 135 …. 23.7 s 136 …. 23.12 s 137(1) …. 23.17 s 137(2)(a) …. 23.21 s 137(2)(b) …. 23.29 s 138(1) …. 23.68 s 139 …. 23.65 s 139A(1) …. 23.47 s 139B …. 23.91 s 139C …. 22.93, 23.95 s 139D …. 23.97 s 139E …. 23.117 s 139F …. 23.119 s 139F(2) …. 23.120 s 139G …. 15.24, 23.114 s 139H …. 15.23, 23.113 s 139I …. 23.137 s 139M …. 23.9 s 141 …. 6.38 s 168 …. 9.17 s 168(5) …. 9.17

s 169 …. 26.32 s 210 …. 17.16 s 210(a) …. 17.25 s 210(b) …. 17.26 s 212 …. 26.24 s 213 …. 6.47 s 214 …. 26.2, 26.35 s 218 …. 16.31, 17.12 Sch 3 …. 13.53 Civil Unions Act 2006 s 5 …. 16.17 Court Procedures Rules 2006 s 1619 …. 15.144 Crimes Act 1900 s 35(1) …. 3.33 s 212 …. 3.66 s 218 …. 3.70 Crimes (Sentencing) Act 2005 …. 3.34 Domestic Animals Act 2000 s 50 …. 26.17 s 50(3)(a) …. 26.20 s 50(3)(c) …. 26.21 s 50(3)(c)(i) …. 26.23 s 55(4)(a) …. 26.23 s 55(4)(b) …. 26.21 s 55(4)(c) …. 26.20 Domestic Violence and Protection Orders Act 2008 …. 3.35 Education Act 2004 s 7(4) …. 6.54 s 9 …. 9.69 Fair Trading (Australian Consumer Law) Act 1992 Pt 2 …. 19.93 s 11 …. 19.96 Guardianship and Management of Property Act 1991 …. 6.18 Legal Profession Act 2006 …. 9.118

Legislation Act 2001 s 169 …. 16.17 Limitation Act 1985 …. 14.1, 14.26 s 2 …. 14.31 s 4(a) …. 14.5 s 11 …. 14.26 s 11(1) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76 s 16 …. 16.48 s 16B …. 3.88, 14.55 s 16B(2) …. 14.8, 14.19, 25.76 s 18 …. 5.104, 14.12 s 21 …. 14.64 s 21B …. 22.94 s 30 …. 14.30, 14.35 s 30A …. 14.37 s 30B …. 14.37 s 33 …. 19.91 s 33(1) …. 14.48 s 36(2) …. 14.55 s 36(5)(A) …. 14.55 s 40 …. 14.63 Dictionary …. 14.31, 14.40, 14.41 Liquor Ordinance 1975 s 79 …. 18.16 Magistrates Court Act 1930 Pt 2.3 …. 6.56 Medical Treatment (Health Directions) Act 2006 Pt 2 …. 6.26 Road Transport (Third Party Insurance) Act 2008 …. 9.65, 20.60 Sale of Goods Act 1954 s 29(2) …. 5.53 Supreme Court Act 1933 s 22 …. 22.62 Transplantation and Anatomy Act 1978 s 23 …. 6.23

Victims of Crime (Financial Assistance) Act 1983 …. 1.48 Work Health and Safety Act 2011 …. 9.49, 9.52 ss 19–26 …. 9.50 ss 31–33 …. 9.52 s 267 …. 9.52 Workers’ Compensation Act 1951 …. 9.54 s 184(2) …. 15.137 NEW SOUTH WALES Animals Act 1977 s 4(1) …. 26.24 s 5 …. 6.47 s 7(2)(a) …. 26.2 s 7(2)(b) …. 26.35 s 10 …. 26.32 Anti-Discrimination Act 1977 …. 22.40 Casino Control Act 1922 …. 18.17 Casino Control Regulations 1995 …. 18.17 Children and Young Persons (Care and Protection) Act 1998 s 174 …. 6.23 Civil Liability Act 2002 …. 1.51, 3.78, 13.69, 15.106, 15.116, 21.36 Pt 1A …. 13.100 Pt 2 Div 7 …. 15.37 Pt 3 …. 10.69 Pt 4 …. 21.32, 21.36 Pt 8 …. 11.29 Pt 8A …. 13.103 Pt 9 …. 13.102 Pt 11 …. 15.28 s 3 …. 15.108 s 3A …. 1.30 s 3B …. 7.8, 12.3 s 3B(1)(a) …. 3.78 s 5 …. 12.6 s 5B …. 11.34, 11.37

s 5B(2) …. 11.49 s 5C(a) …. 11.64 s 5C(b) …. 11.65 s 5C(c) …. 11.66 s 5D …. 12.33, 12.60, 13.100 s 5D(1) …. 12.34 s 5D(1)(a) …. 12.35, 12.37, 12.39, 12.88 s 5D(1)(b) …. 12.57, 12.58, 12.60, 12.88 s 5D(2) …. 12.39, 12.41, 12.88 s 5D(3) …. 12.55 s 5D(4) …. 12.57, 12.58, 12.88 s 5E …. 12.54 s 5F …. 11.63, 13.53, 26.33 s 5G …. 13.53, 26.33 s 5H …. 11.63, 13.93, 26.31 s 5H …. 13.93 s 5H(2) …. 13.87 s 5I …. 13.96 s 5I(3) …. 13.100 s 5K …. 13.67 s 5L …. 13.67 s 5O …. 11.72 s 5O(1) …. 11.18 s 5P …. 13.91 s 5Q …. 20.84 s 5R …. 13.9, 13.11 s 5S …. 13.26 s 5T …. 16.44 s 12 …. 15.81, 16.45 s 12(1)(c) …. 16.45 s 12(2) …. 16.45 s 13 …. 15.74 s 14 …. 15.142 s 15 …. 15.98, 15.106 s 15(4) …. 15.103

s 15(5) …. 15.103 s 15A …. 15.106 s 15B …. 15.105, 15.106 s 15B(1) …. 15.106 s 15B(2)(b) …. 15.106 s 15C …. 15.82 s 16 …. 15.111 s 16(1) …. 15.110 s 16(2) …. 15.109 s 18 …. 15.147 s 19(1)(b) …. 16.48 s 21 …. 15.21 s 24 …. 15.37 s 82 …. 15.37 s 30(2) …. 10.70 s 30(2)(a) …. 10.70 s 31 …. 10.45, 10.46, 19.88 s 32 …. 10.59 s 32(1) …. 10.59 s 32(2) …. 10.59 s 33 …. 10.46 s 34(1) …. 21.34 s 34(2) …. 21.35, 21.36 s 34(3A) …. 21.39 s 34A …. 21.40 s 35(1)(a) …. 21.41, 21.42 s 42 …. 10.131 s 42(a) …. 10.138 s 42(b) …. 10.138 s 43 …. 18.33 s 45 …. 10.148, 10.150 s 45(1) …. 10.150 s 48 …. 13.33 s 49(1)(c) …. 11.33 s 50 …. 13.36, 13.82, 13.83

s 50(1) …. 13.36 s 50(2) …. 13.36, 13.85 s 50(2)–(5) …. 13.35 s 52 …. 6.32, 6.34 s 54 …. 13.77 s 54(5) …. 13.78 s 56 …. 13.99 s 57(1) …. 13.99 s 58(1) …. 13.99 s 58(2) …. 13.99 s 71 …. 12.14 s 72(1) …. 4.21 s 96 …. 13.38 Sch 2 cl 1 …. 17.12 Civil Procedure Act 2005 s 100 …. 15.144 Companion Animals Act 1998 s 16(2) …. 26.20 ss 25–28 …. 26.17 s 25(2) …. 26.23 s 28 …. 26.21 Compensation to Relatives Act 1897 s 3(1) …. 16.3 s 3(3) …. 16.42 s 4(1) …. 16.25 s 4(2) …. 16.17 s 5 …. 16.25 s 6B(1) …. 16.25 s 7(1) …. 16.18, 16.19 s 7(4) …. 16.17 Contracts Review Act 1980 …. 13.104 Conveyancing Act 1919 s 120A(1) …. 4.8 s 177 …. 25.20 s 179 …. 25.21

Crimes Act 1900 s 78H …. 7.17 Crimes (Domestic and Personal Violence) Act 2007 …. 3.35 s 13(1) …. 3.33 Defamation Act 1974 …. 22.5 s 13 …. 23.99 s 16 …. 23.11, 23.14 Defamation Act 2005 …. 22.8, 22.85 Pt 3 Div 1 …. 23.102 s 3(d) …. 23.102 s 4 …. 23.8 s 6 …. 22.9 s 6(2) …. 22.26 s 7 …. 22.18 s 8 …. 22.48 s 9 …. 22.84 s 10 …. 22.81 s 11 …. 22.21 s 17 …. 23.103 s 20 …. 23.133 s 21(1) …. 22.62 s 21(2) …. 22.62 s 22(3) …. 23.140 s 24(1) …. 23.2 s 24(2) …. 23.49 s 25 …. 23.7 s 26 …. 23.12, 23.70 s 27(1) …. 23.17 s 27(2)(a) …. 23.21 s 27(2)(b) …. 23.29 s 28(1) …. 23.68 s 29 …. 23.65 s 30(1) …. 23.47 s 31 …. 23.91 s 32 …. 22.93, 23.95

s 33 …. 23.97 s 34 …. 23.117 s 35 …. 23.119 s 35(2) …. 23.120 s 36 …. 15.24, 23.114 s 37 …. 15.23, 23.113 s 38 …. 23.137 s 42 …. 23.9 Dust Diseases Tribunal Act 1989 s 12A …. 14.5 s 12B …. 16.55 Education Act 1990 s 21B(3) …. 9.69 s 35(2A) …. 6.54 s 47(h) …. 6.54 Employees Liability Act 1991 s 3 …. 21.26 s 5 …. 20.88 Encroachment of Buildings Act 1922 …. 4.70 Fair Trading Act 1987 Pt 3 …. 19.93 s 32 …. 19.96 s 87A …. 19.97 Guardianship Act 1987 …. 6.18 s 37 …. 6.24 Home Building Act 1989 Pt 2C …. 10.119 Interpretation Act 1987 s 21C …. 16.17 Judicial Officers Act 1986 Pt 8A …. 6.56 Law Enforcement (Powers and Responsibilities) Act 2002 ss 9–10 …. 4.37 s 99 …. 3.66 s 100 …. 3.70

Law Reform (Marital Consortium) Act 1984 s 3 …. 16.31 Law Reform (Miscellaneous Provisions) Act 1944 s 2 …. 16.51 s 2(2) …. 22.81 s 2(2)(a)(i) …. 16.56 s 2(2)(a)(ii) …. 16.54 s 2(2)(c) …. 16.57 s 2(2)(d) …. 16.54 Law Reform (Miscellaneous Provisions) Act 1946 s 5(1)(a) …. 21.6 s 5(1)(b) …. 21.12, 21.13 s 5(1)(c) …. 21.16 s 5(2) …. 21.22 Law Reform (Miscellaneous Provisions) Act 1965 s 5 …. 13.6 s 9(1) …. 13.6, 25.59 s 12 …. 21.12 s 13 …. 16.44 Law Reform (Vicarious Liability) Act 1983 …. 20.22, 20.88 s 8 …. 20.20 Legal Profession Uniform Law Application Act 2014 …. 9.118 s 61 …. 15.149 s 62 …. 15.149 Limitation Act 1969 …. 14.1 s 6A …. 14.45 s 7(a) …. 14.5 s 11(3) …. 14.31, 14.42 s 11(3)(b) …. 14.40 s 11(3)(b)(i) …. 14.41 s 14(1)(b) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76 s 14B …. 22.94 s 18A …. 3.88, 14.8, 25.76 s 21 …. 5.104, 14.12 s 26 …. 14.64

s 50A …. 14.19 s 50C …. 14.8, 14.19, 14.33, 14.56, 25.76 s 50C(1)(b) …. 14.20 s 50D …. 14.19 s 50F …. 14.33 s 52 …. 14.30 s 55 …. 19.91 s 55(1) …. 14.48 s 56 …. 14.48 s 56A …. 22.94 s 58 …. 14.56 s 60C …. 14.56 ss 60F–60J …. 14.56 s 62A(2) …. 14.56 Limitation Amendment (Child Abuse) Act 2016 …. 14.45 Liquor Act 1982 …. 9.24 Local Government Act 1993 s 199 …. 4.36 Mental Health Act 1990 …. 10.71 Mental Health Act 2007 s 22 …. 3.73 Minors (Property and Contracts) Act 1970 …. 1.21, 6.19 s 9 …. 6.19 Motor Accidents Act 1988 …. 15.116 Motor Accidents Compensation Act 1999 …. 9.65 Ch 2 …. 20.60 s 81 …. 15.37 s 138 …. 13.44 s 138(2)(c) …. 13.29 s 140 …. 13.61 s 142 …. 17.9 s 144 …. 15.22 Occupational Health and Safety Regulation 2001 …. 18.12 Partnership Act 1892 s 10(1) …. 20.4

Prisons Act 1952 s 16(2) …. 6.50 Protection of the Environment Operations Act 1997 …. 10.145 s 91 …. 10.142 Registered Clubs Act 1976 …. 10.37 s 44A …. 10.37 Sale of Goods Act 1923 s 28(2) …. 5.53 Scaffolding and Lifts Act 1912 …. 18.23, 18.35 Strata Schemes Management Act 1996 s 62 …. 18.30 Strata Titles Act 1973 …. 18.15 s 68 …. 18.15 Uniform Civil Procedure Rules 2005 Pt 15 r 21(2) …. 23.136 Victims Rights and Support Act 2013 …. 3.34 Victims Support and Rehabilitation Act 1996 …. 1.48 Water Traffic Regulations …. 20.58 Work Health and Safety Act 2011 …. 9.49, 9.52 ss 19–26 …. 9.50 ss 31–33 …. 9.52 s 267 …. 9.52 Workers Compensation Act 1987 …. 9.54 s 151A(2) …. 15.137 s 151Q …. 15.37 s 151R …. 15.22 Workplace Injury Management and Workers Compensation Act 1998 …. 9.54 NORTHERN TERRITORY Adult Guardianship Act 1988 …. 6.18 Advance Personal Planning Act 2013 Pt 2 …. 6.26 s 53 …. 6.22 Age of Majority Act 1981 …. 1.21 s 4 …. 6.19

Building Act 1993 …. 21.30 s 160 …. 14.11 Compensation (Fatal Injuries) Act 1974 s 4(2)(a) …. 16.17 s 4(2)(c) …. 16.18 s 4(2)(d) …. 16.18 s 5 …. 16.45 s 5(1) …. 16.46 s 7 …. 16.3 s 7(2) …. 16.9 s 8 …. 16.25 s 10(3)(c) …. 16.31 s 10(3)(f) …. 10.30 s 10(4) …. 16.42 s 10(4)(h) …. 16.38 s 10(5) …. 16.9 s 11(1) …. 16.44 s 13(1) …. 16.25 s 17 …. 16.48 Consumer Affairs and Fair Trading Act 1990 Pt 4 …. 19.93 s 31 …. 19.96 s 43 …. 19.97 Criminal Code Act 1983 …. 3.67 s 189(2) …. 3.33 s 441 …. 3.70 De Facto Relationships Act 1991 s 3A(3) …. 16.17 Defamation Act 2006 …. 22.8 Pt 3 Div 1 …. 23.102 s 2(d) …. 23.102 s 3 …. 23.8 s 5 …. 22.9 s 5(2) …. 22.26 s 6 …. 22.18

s 7 …. 22.48 s 8 …. 22.84 s 9 …. 22.81 s 10 …. 22.21 s 16 …. 23.103 s 19 …. 23.133 s 21(1) …. 23.2 s 21(2) …. 23.49 s 22 …. 23.7 s 23 …. 23.12 s 24(1) …. 23.17 s 24(2)(a) …. 23.21 s 24(2)(b) …. 23.29 s 25(1) …. 23.68 s 26 …. 23.65 s 27 …. 23.48 s 27(1) …. 23.47 s 28 …. 23.91 s 29 …. 22.93, 23.95 s 30 …. 23.97 s 31 …. 23.117 s 32 …. 23.119 s 32(2) …. 23.120 s 33 …. 15.24, 23.114 s 34 …. 15.23, 23.113 s 35 …. 23.137 s 39 …. 23.9 Domestic and Family Violence Act 2007 …. 3.35 Education Act 1979 s 38(2) …. 9.69 Education Act 2015 s 162 …. 6.54 Emergency Medical Operations Act 1973 s 3 …. 6.23, 6.24 Encroachment of Buildings Act 1982 …. 4.70

Interpretation Act 1978 s 19A …. 16.17 Juries Act 1963 s 6A …. 22.62 Law of Property Act 2000 s 115(1) …. 4.8 s 162 …. 25.20 Law Reform (Miscellaneous Provisions) Act 1956 Pt II …. 16.51 s 5(2) …. 22.81 s 6(1)(a) …. 16.56 s 6(1)(c)(i) …. 16.57 s 6(1)(c)(ii) …. 16.54 s 6(1)(c)(iii) …. 16.54 s 6(2) …. 16.55 s 12(2) …. 21.6 s 12(3)(b) …. 21.12 s 12(4) …. 21.16 s 13 …. 21.22 s 15(1) …. 13.6 s 16(1) …. 13.6, 25.59 s 17(2) …. 16.44 s 18 …. 17.9 s 22A …. 21.26 s 32 …. 26.17 Legal Profession Act 2006 …. 9.118 Legislative Assembly (Powers and Privileges) Act 1992 s 4 …. 23.23 s 6 …. 23.23 Limitation Act 1981 …. 14.1 s 4(1) …. 14.31, 14.40, 14.41, 14.42 s 5 …. 14.5 s 11(1)(b) …. 4.71 s 12(1)(b) …. 3.88, 5.102, 14.8, 14.10, 19.62, 25.76 s 12(2)(a) …. 14.5

s 12(2)(b) …. 22.94 s 17 …. 16.48 s 19(1) …. 5.104, 14.12 s 19(2) …. 5.104, 14.12 s 24 …. 14.64 s 36 …. 14.30, 14.35 s 42 …. 19.91 s 42(1) …. 14.48 s 44 …. 14.57, 14.63 s 44A …. 22.94 Magistrates Act 1977 s 19A …. 6.56 Motor Accidents (Compensation) Act 1979 …. 1.47, 9.66, 20.60 s 5 …. 17.12, 17.23, 20.60 s 5(1) …. 17.2 Personal Injuries (Civil Claims) Act 2003 s 8 …. 14.9 s 12 …. 15.37 Personal Injuries (Liabilities and Damages) Act 2003 …. 1.51, 13.53 Pt 4 Div 6 …. 15.37 s 3 …. 13.33 s 4 …. 12.3 s 7 …. 13.102 s 7A …. 13.103 s 8 …. 11.29, 13.100 s 9 …. 9.17 s 10 …. 13.77 s 10(2) …. 13.78 s 14 …. 13.34 s 14(2) …. 13.35 s 15 …. 13.38 s 15(2) …. 13.39 s 16 …. 13.33 s 17 …. 13.40 s 19 …. 15.21

s 20 …. 15.81, 16.45 s 22 …. 15.142 s 23 …. 15.98 s 23(3) …. 15.103 s 23(4) …. 15.103 s 23(5) …. 15.91 s 24 …. 15.108 s 27 …. 15.109, 15.111 s 27(2) …. 15.110 s 29 …. 15.147 s 32 …. 15.37 Police Administration Act 1978 s 119 …. 4.37 s 123 …. 3.66 s 148C …. 20.20 Proportionate Liability Act 2005 …. 21.32 s 3 …. 21.34 s 4(2) …. 21.34 s 6(1) …. 21.35 s 7 …. 21.40 s 13(1)(a) …. 21.41 Return to Work Act 1986 …. 9.54 s 52 …. 15.137, 17.23 s 52(1) …. 1.46 Sale of Goods Act 1954 s 28(2) …. 5.53 Sentencing Act 1995 …. 3.34 Supreme Court Act 1979 s 84 …. 15.144 Supreme Court Rules 1987 O 40.10 …. 23.136 Victims of Crime Assistance Act 2006 …. 1.48 Work Health Act 1986 s 52 …. 17.2, 17.12 Work Health and Safety (National Uniform Legislation) Act 2011 …. 9.49, 9.52

ss 19–26 …. 9.50 ss 31–33 …. 9.52 s 267 …. 9.52 QUEENSLAND Acts Interpretation Act 1954 s 32DA(5) …. 16.17 s 36 …. 16.17 Age of Majority Act 1974 …. 1.21 Anti-Discrimination Act 1991 …. 22.40 Civil Liability Act 2003 …. 1.51, 3.78, 11.29, 11.44, 13.101, 15.102 Ch 2 Pt 2 …. 21.32 Ch 2 Pt 3 Div 2 Subdiv 2 …. 13.103 Ch 2 Pt 3 Div 2 Subdiv 3 …. 13.102 Ch 2 Pt 5 …. 15.28 Ch 3 Pt 4 …. 15.37 s 4 …. 3.78 s 5 …. 12.3 s 7(3) …. 1.30 s 9 …. 11.34 s 9(2) …. 11.49 s 10(a) …. 11.64 s 10(b) …. 11.65 s 10(c) …. 11.66 s 11(1)(a) …. 12.41 s 11(2) …. 12.33, 12.39, 12.41, 12.42 s 11(3) …. 12.55 s 11(4) …. 12.60 s 12 …. 12.54 s 13 …. 11.63, 13.53, 26.33 s 14 …. 13.53, 26.33 s 14(2) …. 13.55 s 15 …. 11.63, 13.87, 26.31 s 16 …. 13.100 s 18 …. 13.67

s 19 …. 13.67 s 20 …. 13.84 s 21 …. 11.73, 13.87 s 21(1) …. 13.94 s 22 …. 11.72, 13.83 s 22(1) …. 11.18, 11.72, 13.82 s 22(2) …. 13.85 s 22(5) …. 13.86 s 23 …. 13.9 s 24 …. 13.26 s 25 …. 11.29 s 26 …. 11.29 s 26(1)(a) …. 11.29 s 27 …. 11.29 s 27(1)(a) …. 11.29 s 28(1)(a) …. 21.34 s 28(3)(b) …. 21.39 s 30(1) …. 21.35 s 31(1) …. 21.41 s 32D …. 21.40 s 32E …. 21.40 s 34 …. 10.133 s 35 …. 10.131 s 35(b) …. 10.138 s 36 …. 18.33 s 37 …. 10.148 s 45 …. 13.77, 13.79 s 45(2) …. 13.78 s 45(3) …. 13.78 s 45(4) …. 13.78 s 46(1)(c) …. 11.33 s 47 …. 13.34 s 47(3) …. 13.35 s 47(4) …. 13.40 s 47(5) …. 13.44

s 48 …. 13.38 s 48(3) …. 13.39 s 48(4) …. 13.40 s 48(5) …. 13.61 s 49 …. 13.38, 13.44 s 49A …. 12.14 s 51 …. 15.108 s 52 …. 15.21 s 52(2)(a) …. 7.8 s 53 …. 15.44 s 54 …. 15.81, 16.45 s 55 …. 15.74 s 56 …. 15.82 s 57 …. 15.142 s 58 …. 17.9, 17.11 s 58(1)(a) …. 16.31 s 59 …. 15.98, 15.100 s 59(1) …. 15.99 s 59(3) …. 15.91 s 59A …. 15.105 s 60 …. 15.147 s 61 …. 15.112 s 61(1)(c) …. 15.112 s 62 …. 15.109 s 65 …. 15.37 s 73 …. 8.26, 11.88, 15.152 Sch 1 …. 11.29 Sch 2 …. 3.78, 11.29, 12.6, 13.33, 20.84 Dictionary …. 13.86 Civil Liability Regulation 2014 s 7 …. 15.112 Sch 1 …. 13.101 Sch 2 …. 13.101 Sch 3 s 2 …. 15.112 Sch 3 s 3 …. 15.113

Sch 3 s 5 …. 15.113 Sch 3 s 7 …. 15.113 Sch 3 s 8 …. 15.114 Sch 3 s 9 …. 15.115 Sch 3 s 10 …. 15.114 Sch 4 …. 15.112, 15.114, 15.115 Sch 8 …. 15.113, 15.114 Civil Proceedings Act 2011 …. 16.5 s 8 …. 25.102 s 58 …. 15.144, 15.145 s 60 …. 15.85 s 61 …. 15.142 s 62 …. 16.16, 16.19 s 62(b) …. 16.18 s 62(d) …. 16.18 s 63 …. 16.17 s 64 …. 16.3, 16.5, 16.13 s 65(1) …. 16.25 s 65(2) …. 16.25 s 67 …. 16.38 s 67(6) …. 16.38 s 67(7) …. 16.17 s 68 …. 16.38 s 70(1) …. 16.42 Coal Mining Safety and Health Act 1999 …. 9.51 Common Law Practice Act 1867 s 72 …. 15.145 Criminal Code 1899 …. 3.37, 3.41, 3.43, 3.44, 3.67, 5.72, 6.35, 6.44 s 5 …. 6.32 s 6 …. 3.43 s 230 …. 25.1 s 245 …. 3.4, 3.19, 3.37, 3.39, 3.40, 3.41, 3.42, 6.5, 6.32 s 260 …. 3.70 s 269 …. 3.44, 6.35 s 271 …. 3.45, 6.32

s 272 …. 3.45 s 273 …. 3.45 ss 274–276 …. 5.72 s 275 …. 3.45 s 277 …. 3.45, 4.50, 6.37 s 278 …. 3.45, 4.50 s 355 …. 3.49 s 359E(1) …. 3.33 s 534 …. 24.75 s 546 …. 3.70 s 647 …. 14.39 Defamation Act 1889 …. 22.5 s 20 …. 23.99 Defamation Act 2005 …. 22.8 Pt 3 Div 1 …. 23.102 s 3(d) …. 23.102 s 6 …. 22.9 s 6(2) …. 22.26 s 7 …. 22.18 s 8 …. 22.48 s 9 …. 22.84 s 10 …. 22.81 s 11 …. 22.20, 22.21 s 11(1) …. 22.20 s 11(2) …. 22.20 s 11(3) …. 22.21 s 17 …. 23.103 s 20 …. 23.133 s 21(1) …. 22.62 s 22(2) …. 22.62 s 22(3) …. 23.140 s 24(1) …. 23.2 s 24(2) …. 23.49 s 25 …. 23.7 s 26 …. 23.12

s 27(1) …. 23.17 s 27(2)(a) …. 23.21 s 27(2)(b) …. 23.29 s 28(1) …. 23.68 s 29 …. 23.65 s 30(1) …. 23.47 s 31 …. 23.91 s 32 …. 22.93, 23.95 s 33 …. 23.97 s 34 …. 23.117 s 35 …. 23.119 s 35(2) …. 23.120 s 36 …. 15.24, 23.114 s 37 …. 15.23, 23.113 s 38 …. 23.137 s 42 …. 23.9 Sch 5 …. 23.8 District Court of Queensland Act 1967 s 68(1)(b)(xii) …. 4.65 Domestic and Family Violence Protection Act 2012 …. 3.35 Education (General Provisions) Act 2006 s 9 …. 9.69 Electricity Act 1994 s 137 …. 4.36 s 138 …. 4.36 Factories and Shops Act 1960 …. 18.31 Fair Trading Act 1989 Pt 3 …. 19.93 s 20 …. 19.96 s 95 …. 19.97 Fire and Emergency Services Act 1990 s 53 …. 4.36 Factories and Shops Act 1960 …. 18.31 Forensic Disability Act 2011 …. 14.39 Guardianship and Administration Act 2000 …. 6.18

s 63 …. 6.24 Hospital and Health Boards Act 2013 s 88(2) …. 23.23 Invasion of Privacy Act 1971 …. 6.50 Law Reform Act 1995 Pt 5 …. 13.101 s 5 …. 6.61, 13.6, 16.44 s 6(a) …. 21.6 s 6(b) …. 21.12 s 6(c) …. 21.16 s 7 …. 21.22 s 10(1) …. 13.6, 25.59 s 10(5) …. 16.44 s 13 …. 17.11 s 17 …. 6.19 Legal Profession Act 2007 …. 9.118 Limitation of Actions Act 1974 …. 14.1, 14.36 s 5 …. 16.49 s 5(2) …. 14.31, 14.35, 14.39 s 5(3) …. 14.39 s 7 …. 14.5 s 10(1)(a) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76 s 10AA …. 22.94 s 11 …. 3.88, 14.8, 16.48, 25.76 s 11(1) …. 16.49 s 11(2) …. 14.5, 16.49 s 12(1) …. 5.104, 14.12 s 12(2) …. 5.104, 14.12 s 29 …. 14.30, 14.35 s 30(1)(a) …. 14.58 s 30(1)(b) …. 14.59 s 30(1)(c) …. 14.59 s 30(2) …. 14.59 s 31(2) …. 14.58 s 32A …. 22.94

s 38 …. 19.91 s 38(1) …. 14.47 s 40 …. 14.64 Magistrates Act 1991 s 51 …. 6.56 Mental Health Act 2000 …. 14.39 Motor Accident Insurance Act 1994 …. 9.65 Pt 3 …. 20.60 s 55 …. 15.22 s 56 …. 11.88 Nature Conservation Act 1992 …. 5.17, 10.125 s 142(3) …. 10.125 s 142(7) …. 10.125 Neighbourhood Disputes Resolution Act 2011 Pt 5 …. 25.22 Personal Injuries Proceedings Act 2002 …. 14.9 s 9(3) …. 14.9 s 20C …. 14.36 s 43 …. 14.9 s 56 …. 15.149 Petroleum and Gas (Production and Safety) Act 2004 …. 9.51 Police Powers and Responsibilities Act 2000 s 19 …. 4.37 s 365 …. 3.66 Police Service Administration Act 1990 s 10.5 …. 20.20 Powers of Attorney Act 1998 Ch 3 …. 6.26 Pt 3 …. 6.26 Property Law Act 1974 Pt 11 …. 4.70 s 102(1) …. 4.8 s 178 …. 25.21 s 179 …. 25.20 s 185(1) …. 4.70

s 186(1) …. 4.70 Public Health Act 2005 s 213B …. 6.21 Queensland and Construction Commission Act 1991 s 67AZN …. 10.119 Sch 1B …. 10.119 Residential Tenancies Act 1994 Pt 3 …. 4.6 Sale of Goods Act 1896 s 27(2) …. 5.53 Succession Act 1981 s 15(1) …. 10.100 s 66 …. 16.51 s 66(2) …. 22.81 s 66(2)(b) …. 16.56 s 66(2)(a) …. 16.54 s 66(2)(d)(i) …. 16.57 s 66(2)(d)(ii) …. 16.54 s 66(2A) …. 16.55 s 66(2B) …. 16.55 Supreme Court Act 1995 s 17 …. 16.13 Transplantation and Anatomy Act 1979 s 20 …. 6.23 Transport Operations (Rail Safety) Act 2010 …. 9.51 Transport Operations (Road Use Management) Act 1995 s 80(9B) …. 6.48 Transport Operations (Road Use Management — Road Rules) Regulation 1999 s 70 …. 13.24 Victims of Crime Assistance Act 2009 …. 1.48, 3.34, 3.39 Work Health and Safety Act 2011 …. 9.49, 9.51, 9.52, 18.16 s 17 …. 18.16 ss 19–26 …. 9.50 ss 31–33 …. 9.52 s 267 …. 9.52

Workers’ Compensation and Rehabilitation Act 2003 …. 9.54 Ch 5 Pt 9 Div 4 …. 15.37 s 207B …. 15.137 s 306B …. 15.22 SOUTH AUSTRALIA Acts Interpretation Act 1915 s 16 …. 20.22 Age of Majority (Reduction) Act 1971 …. 1.21 s 3 …. 6.19 Building Work Contractors Act 1995 s 32 …. 10.119 Civil Liability Act 1936 …. 1.51 s 3 …. 12.6, 13.33, 15.81, 15.108, 15.142, 16.17 s 18 …. 26.2, 26.24, 26.35 s 18(2) …. 26.32 s 18(6) …. 26.32 s 20 …. 9.17 s 23 …. 16.3 s 24 …. 16.25 s 24(2aa) …. 16.42 s 25 …. 16.48 s 25(1) …. 16.25 s 27(1) …. 16.25 s 28 …. 16.30 s 29 …. 16.30 s 31 …. 11.8 s 31(1) …. 11.18 s 31(2) …. 11.27 s 32 …. 11.34 s 32(2) …. 11.45 s 33 …. 10.59, 10.69, 10.70 s 34 …. 12.33 s 36 …. 11.63, 13.53, 26.31 s 37 …. 13.53, 26.33

s 37(3) …. 13.56 s 38 …. 11.63, 13.87, 26.33 s 39 …. 13.100 s 40 …. 11.20 s 41(1) …. 11.18 s 41(2) …. 13.85 s 41(5) …. 13.91 s 42 …. 10.148, 11.72, 13.82 s 43 …. 13.77 s 43(1) …. 13.78 s 43(2) …. 13.78 s 43(3) …. 13.78 s 44 …. 13.9 s 45 …. 16.44 s 46 …. 13.34 s 46(2) …. 13.35 s 46(3) …. 13.40 s 46(4) …. 13.44 s 47 …. 13.38, 13.45 s 47(2) …. 13.39 s 47(2)(b) …. 13.45 s 47(3) …. 13.40 s 47(5) …. 13.44, 13.45 s 47(6) …. 13.61 s 49 …. 13.29, 13.45 s 51 …. 7.8 s 51(a)(ii) …. 3.78 s 52(1) …. 15.110 s 52(2) …. 15.109 s 53 …. 10.69 s 53(1) …. 10.70 s 53(1)(a) …. 10.70 s 53(2) …. 10.45 s 53(3) …. 10.46 s 54 …. 15.81

s 54(3) …. 16.45 s 55 …. 15.142 s 56 …. 15.147 s 56A …. 15.82 s 57 …. 15.131. s 58 …. 15.98 s 59 …. 21.26 s 65 …. 16.31, 17.11 s 66 …. 16.27 s 67 …. 12.14 s 68 …. 17.16 s 68(a) …. 17.25 s 74 …. 11.29, 13.100 s 74A …. 13.103 Civil Wrongs Liability Act 1936 s 68(b) …. 17.26 s 68(c) …. 17.26 Community Welfare Act 1972 …. 10.29 Consent to Treatment and Palliative Care Act 1995 s 3 …. 6.19 s 4 …. 6.19 s 6 …. 6.19 s 12 …. 6.19 s 15 …. 9.97 Consent to Medical Treatment and Palliative Care Act 1995 s 8 …. 6.26 s 13 …. 6.23 Constitution Act 1934 s 38 …. 23.23 Criminal Law Consolidation Act 1935 s 19AA(2) …. 3.33 s 271 …. 3.70 Criminal Law (Sentencing) Act 1988 …. 3.34 Crown Proceedings Act 1972 s 10(2) …. 20.22

Crown Proceedings Act 1992 …. 20.22 Defamation Act 2005 …. 22.8 Pt 3 Div 1 …. 23.102 s 3(d) …. 23.102 s 4 …. 23.8 s 6 …. 22.9 s 6(2) …. 22.26 s 7 …. 22.18 s 8 …. 22.48 s 9 …. 22.84 s 10 …. 22.81 s 11 …. 22.21 s 17 …. 23.103 s 20 …. 23.133 s 22(1) …. 23.2 s 22(2) …. 23.49 s 23 …. 23.7 s 24 …. 23.12 s 25(1) …. 23.17 s 25(2)(a) …. 23.21 s 25(2)(b) …. 23.29 s 26(1) …. 23.68 s 27 …. 23.65 s 28(1) …. 23.47 s 29 …. 23.91 s 30 …. 22.93, 23.95 s 31 …. 23.97 s 32 …. 23.117 s 33 …. 23.119 s 33(2) …. 23.120 s 34 …. 15.24, 23.114 s 35 …. 15.23, 23.113 s 36 …. 23.137 Development Act 1993 …. 21.30 s 73 …. 14.11

Dog and Cat Management Act 1995 s 66 …. 26.17 s 66(3)(a) …. 26.20 s 66(3)(c) …. 26.23 s 66(4) …. 26.21 Education Act 1972 s 75(2a) …. 9.69 Encroachments Act 1944 …. 4.70 Fair Trading Act 1987 Pt 3 …. 19.93 s 18 …. 19.96 Family Relationships Act 1975 s 11 …. 16.17 s 11A …. 16.17 Guardianship and Administration Act 1993 …. 6.18 Intervention Orders (Prevention of Abuse) Act 2009 …. 3.35 Juries Act 1927 s 5 …. 22.62 Law of Property Act 1936 s 22 …. 25.21 s 24B …. 4.8 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 Pt 3 …. 21.32 s 3 …. 13.6 s 7 …. 25.59 s 7(1) …. 13.6 s 7(2) …. 13.6 s 7(3)(a) …. 17.9 Legal Practitioners Act 1981 …. 9.118 Limitation of Actions Act 1936 …. 14.1, 14.12 s 3(2) …. 21.34 s 3(2)(b) …. 21.35 s 5(2) …. 21.12 s 5(3) …. 21.12 s 6(1) …. 21.16

s 6(4) …. 14.65 s 6(5) …. 21.22 s 6(7) …. 21.22 s 8(2) …. 21.41 s 12(1) …. 21.6, 21.12 s 12(2)(b) …. 21.12 s 12(3) …. 21.12 s 25 …. 14.49, 19.91 s 35 …. 4.71 s 35(c) …. 3.88, 5.102, 14.10, 19.62, 25.76 s 36 …. 3.88, 14.8, 25.76 s 37 …. 22.94 s 45 …. 14.30, 14.35 s 45(2) …. 14.31, 14.40 s 45A …. 14.37 s 46 …. 14.42 s 47 …. 14.5 s 48 …. 14.57, 14.63 Motor Vehicles Act 1959 …. 9.65 Pt 4 …. 20.60 s 113A …. 15.22 Occupational Health, Safety and Welfare Act 1986 …. 18.14 Police Act 1998 s 65 …. 20.20 Recreational Services (Limitation of Liability) Act 2002 s 5 …. 13.67 Return to Work Act 2014 …. 9.54 s 75 …. 15.137 Sale of Goods Act 1895 s 25(2) …. 5.53 Summary Offences Act 1953 s 72B …. 4.37 s 75 …. 3.66 s 78 …. 3.66 Supreme Court Act 1935

s 30BA …. 15.37 s 30C …. 15.144 Supreme Court Rules O 78.03 …. 23.136 Survival of Causes of Action Act 1940 s 2 …. 16.51 s 2(2) …. 22.81 s 3(1)(a) …. 16.54 s 3(1)(b) …. 16.56 s 3(1)(d) …. 16.57 s 3(2) …. 16.55 s 3(3) …. 16.55 Victims of Crime Act 2001 …. 1.48 Volunteers Protection Act 2001 …. 13.102 Work Health and Safety Act 2012 …. 9.49, 9.52 ss 19–26 …. 9.50 ss 31–33 …. 9.52 s 267 …. 9.52 Wrongs Act 1936 s 4 …. 12.3 s 34(1)(b) …. 12.57 s 34(2) …. 12.39 s 34(3) …. 12.55 s 34(4) …. 12.57 s 35 …. 12.54 TASMANIA Administration and Probate Act 1935 s 27 …. 16.51 s 27(3A) …. 16.55 s 27(3B) …. 16.55 s 27(3)(a) …. 16.56 s 27(3)(c)(i) …. 16.57 s 27(3)(c)(ii) …. 16.54 s 27(3)(c)(iii) …. 16.54

Age of Majority Act 1973 …. 1.21 s 3 …. 6.19 Australian Consumer Law (Tasmania) Act 2010 Pt 2 …. 19.93 s 10 …. 19.96 s 28 …. 19.97 Building Act 2000 s 255 …. 14.11, 14.25 s 256 …. 14.11, 14.25 Civil Liability Act 2002 …. 1.51 Pt 8 …. 10.69 Pt 8A …. 11.29, 13.100 Pt 8B …. 13.103 Pt 9A …. 21.32 Pt 10 …. 13.102 s 3 …. 15.108 s 3A …. 1.30 s 3B …. 7.8, 12.3 s 3B(1)(a) …. 3.78 s 3C …. 20.84 s 5 …. 13.34 s 5(1) …. 13.35 s 5(2) …. 13.40 s 5(4) …. 13.35 s 5(5) …. 13.33 s 5(6) …. 13.33 s 6 …. 13.77 s 6(2) …. 13.78 s 8 …. 15.37 s 9 …. 12.6 s 11 …. 11.34 s 11(2) …. 11.49 s 12(a) …. 11.65 s 12(b) …. 11.66 s 13 …. 12.33

s 13(1)(b) …. 12.57 s 13(2) …. 12.39 s 13(3) …. 12.55 s 13(4) …. 12.57 s 14 …. 12.54 s 15 …. 11.63, 13.53, 26.33 s 16 …. 13.53, 26.33 s 17 …. 11.63, 13.93, 26.31 s 17(2) …. 13.87 s 19 …. 13.67 s 20 …. 13.67 s 21 …. 13.87, 13.94 s 22 …. 11.72, 13.82 s 22(1) …. 11.18 s 22(2) …. 13.85 s 22(5) …. 13.86 s 23 …. 13.9 s 25 …. 15.82 s 26 …. 15.81, 16.45 s 27(1) …. 15.110 s 28 …. 15.111 s 28A …. 15.142 s 28B …. 15.98 s 28B(3) …. 15.103 s 28D …. 16.31, 17.12 s 28E …. 17.16, 17.25, 17.26 s 33 …. 10.45 s 34 …. 10.59 s 35 …. 10.46 s 38 …. 10.131 s 38(b) …. 10.138 s 40 …. 18.33 s 42 …. 10.148 s 43A(1) …. 21.34 s 43A(2) …. 21.35

s 43A(5) …. 21.40 s 43B(1)(a) …. 21.41 Criminal Code 1924 …. 3.67 s 27 …. 3.70 s 141 …. 25.1 s 192(1) …. 3.33 Defamation Act 1957 …. 22.5 s 9(2) …. 23.99 s 18 …. 23.11 Defamation Act 2005 …. 22.8 Pt 3 Div 1 …. 23.102 s 3(d) …. 23.102 s 4 …. 23.8 s 6 …. 22.9 s 6(2) …. 22.26 s 7 …. 22.18, 22.18 s 8 …. 22.48 s 9 …. 22.84 s 11 …. 22.21, 22.21 s 17 …. 23.103 s 20 …. 23.133 s 20A …. 22.94 s 21(1) …. 22.62 s 22(2) …. 22.62 s 22(3) …. 23.140 s 24(1) …. 23.2 s 24(2) …. 23.49 s 25 …. 23.7 s 26 …. 23.12 s 27(1) …. 23.17 s 27(2)(a) …. 23.21 s 27(2)(b) …. 23.29 s 28(1) …. 23.68 s 29 …. 23.65 s 30(1) …. 23.47

s 31 …. 23.91 s 32 …. 22.93, 23.95 s 33 …. 23.97 s 34 …. 23.117 s 35 …. 23.119 s 35(2) …. 23.120 s 36 …. 15.24, 23.114 s 37 …. 15.23, 23.113 s 38 …. 23.137 s 42 …. 23.9 Dog Control Act 2000 s 19 …. 26.17 s 19(5)(a) …. 26.23 s 19(5)(b) …. 26.20 Education Act 1994 s 4(1) …. 9.69 s 82A …. 6.54 Fatal Accidents Act 1934 …. 16.45 s 3 …. 16.17 s 4 …. 16.3 s 5 …. 16.25 s 6 …. 16.25 s 8(1) …. 16.25 s 10(1) …. 16.42 Guardianship and Administration Act 1995 …. 6.18 s 40 …. 6.24 Housing Indemnity Act 1992 s 8 …. 10.119 Human Tissue Act 1985 s 21 …. 6.23 Justices Act 1959 …. 3.35 Pt XII …. 6.56 Law of Animals Act 1962 Pt II …. 6.47 s 19 …. 26.35

Legal Profession Act 2007 …. 9.118 Limitation Act 1974 …. 14.1 s 2 …. 14.31, 14.35 s 2(2)(b) …. 14.40 s 4(1)(a) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76 s 5 …. 3.88, 14.43 s 5(1) …. 14.8, 16.48, 25.76 s 5(2) …. 16.48 s 5(3) …. 14.61 s 5A(3) …. 14.19 s 5A(3)(b) …. 14.20 s 5A(5) …. 14.61 s 6(1) …. 5.104, 14.12 s 6(2) …. 5.104, 14.12 s 26 …. 14.30, 14.31 s 26(1) …. 14.35 s 26(7) …. 14.45 s 28 …. 14.31 s 32 …. 19.91 s 32(1) …. 14.47 s 38 …. 14.5 Magistrates Court Act 1991 s 44 …. 6.56 Motor Accidents (Liabilities and Compensation) Act 1973 …. 1.47, 9.66, 20.60 s 22(3) …. 13.29 s 22(4) …. 13.29 Police Offences Act 1935 s 55 …. 3.66 Police Service Act 2003 s 84 …. 20.20 Relationships Act 2003 ss 4-6 …. 16.17 Sale of Goods Act 1896 s 30(2) …. 5.53

Sentencing Act 1997 …. 3.34 Supreme Court Civil Procedure Act 1932 s 35 …. 15.144 Testators Family Maintenance Act 1912 …. 10.105 Tortfeasors and Contributory Negligence Act 1954 s 3(1) …. 21.12 s 3(2) …. 21.22 Victims of Crime Assistance Act 1976 …. 1.48 Work Health and Safety Act 2012 …. 9.49, 9.52 ss 19–26 …. 9.50 ss 31–33 …. 9.52 s 267 …. 9.52 Workers Rehabilitation and Compensation Act 1988 …. 9.54 s 133 …. 15.137 Wrongs Act 1954 s 2 …. 13.6 s 3(1)(a) …. 21.6 s 3(1)(b) …. 21.12 s 3(1)(c) …. 21.16 s 3(5) …. 14.66 s 4(1) …. 13.6, 13.26, 25.59 s 4(4) …. 16.44 VICTORIA Accident Compensation Act 1985 …. 9.54 s 134A(7)(c) …. 15.22 s 134AB(22)(c) …. 15.22 s 135A(10)(b) …. 15.97 Administration and Probate Act 1958 s 29 …. 16.51 s 29(2) …. 22.81 s 29(2)(a) …. 16.56 s 29(2)(c)(i) …. 16.57 s 29(2)(c)(ii) …. 16.54 s 29(2)(c)(iii) …. 16.54

s 29(2A) …. 16.55 Age of Majority Act 1977 …. 1.21 s 3 …. 6.19 Australian Consumer Law and Fair Trading Act 2012 Ch 2 …. 19.93 s 12 …. 19.96 s 196 …. 19.97 Building Act 1993 …. 21.30 s 134 …. 14.11 Constitution Act 1975 s 19(1) …. 23.23 Crimes Act 1958 s 21A(1) …. 3.33 s 458 …. 3.66, 3.70 s 459A …. 4.37 s 463B …. 10.144 Crimes (Family Violence) Act 1987 …. 3.35 Defamation Act 2005 …. 22.8 Pt 3 Div 1 …. 23.102 s 3(d) …. 23.102 s 4 …. 23.8 s 6 …. 22.9 s 6(2) …. 22.26 s 7 …. 22.18 s 8 …. 22.48 s 9 …. 22.84 s 10 …. 22.81 s 11 …. 22.21 s 17 …. 23.103 s 20 …. 23.133 s 21(1) …. 22.62 s 22(2) …. 22.62 s 22(3) …. 23.140 s 24(1) …. 23.2 s 24(2) …. 23.49

s 25 …. 23.7 s 26 …. 23.12 s 27(1) …. 23.17 s 27(2)(a) …. 23.21 s 27(2)(b) …. 23.29 s 28(1) …. 23.68 s 28(4)(d) …. 23.69 s 29 …. 23.65 s 30(1) …. 23.47 s 31 …. 23.91 s 32 …. 22.93, 23.95 s 33 …. 23.97 s 34 …. 23.117 s 35 …. 23.119 s 35(2) …. 23.120 s 36 …. 15.24, 23.114 s 37 …. 15.23, 23.113 s 38 …. 23.137 s 42 …. 23.9 Domestic Animals Act 1994 s 29(2) …. 26.20, 26.23 s 29(3) …. 26.17 Domestic Building Contracts Act 1995 Pt 2 Div 1 …. 10.119 Education and Training Reform Act 2006 s 1.1.3 …. 9.69 Education and Training Reform Regulations reg 14 …. 6.54 Factories and Shops Act 1928 s 59(1)(a) …. 18.25 Goods Act 1958 s 31 …. 5.53 Guardianship and Administration Act 1986 …. 6.18, 14.39 s 42A …. 6.24 Human Tissue Act 1982

s 24 …. 6.23 Impounding of Livestock Act 1994 ss 9–11 …. 6.47 Judicial Proceedings Reports Act 1959 s 4 …. 7.27 Legal Profession Act 1958 s 10(2) …. 9.112 Legal Profession Uniform Law Application Act 2014 …. 9.118 Limitation of Actions Act 1958 …. 14.1 Pt IIA, Div 5 …. 14.45 s 3 …. 14.31 s 3(2) …. 14.39 s 3(3) …. 14.39 s 5(1)(a) …. 3.88, 4.71, 5.102, 14.10, 19.62, 25.76 s 5(1AAA) …. 22.94 s 5(1AA) …. 14.8, 25.76 s 5(1A) …. 14.43 s 6(1) …. 5.104, 14.12 s 6(2) …. 5.104, 14.12 s 23 …. 14.30 s 23(2) …. 14.31 s 23A …. 14.61 s 23B …. 22.94 s 27 …. 14.47, 19.91 s 27B(1)(b) …. 14.20 s 27B(2)(d) …. 14.5 s 27D …. 3.88, 14.19, 14.20 s 27E …. 14.33 s 27F …. 14.19 s 27J …. 14.33 s 27K …. 14.61 s 33 …. 14.5 Limitation of Actions Amendment (Child Abuse) Act 2015 …. 14.45 Magistrates’ Court Act 1989 s 14 …. 6.56

Medical Treatment Act 1988 s 5(1)(c) …. 9.97 s 5A …. 6.26 s 5B(2) …. 6.26 s 6 …. 6.26 Mental Health Act 1986 s 10 …. 10.129, 10.141, 10.144 s 10(1) …. 10.129 Occupational Health and Safety Act 2004 …. 9.49 Property Law Act 1958 s 149(1) …. 4.8 s 195 …. 25.21 Road Management Act 2004 s 102 …. 10.148 Sentencing Act 1991 …. 3.34 Supervision of Workrooms and Factories Act 1873 …. 9.28 Supreme Court Act 1986 s 60 …. 15.144 Supreme Court Rules O 40 r 10 …. 23.136 Transport Accident Act 1986 …. 1.47, 9.66 Pt 3, Div 2 …. 20.60 s 40 …. 13.44 s 93 …. 17.12, 17.23 s 93A …. 17.2 s 93(7)(c) …. 15.22 s 93(9) …. 16.46 s 93(10)(c) …. 15.97 Victims of Crime Assistance Act 1996 …. 1.48 Victoria Police Act 2013 s 74 …. 20.20 Workers’ Compensation Act 1958 s 65(1) …. 15.137 Workplace Injury Rehabilitation and Compensation Act 2013 …. 9.54 Wrongs Act 1958 …. 1.51, 15.108, 21.37

Pt III …. 16.46 Pt IVAA …. 21.32 Pt VC …. 15.37 Pt VIA …. 11.29 Pt VIB …. 13.103 Pt IX …. 13.102 s 5K …. 13.9 s 14 …. 17.25 s 14B …. 9.17 s 14G …. 13.37 s 14G(1) …. 13.37 s 14G(2)(b) …. 13.77 s 16 …. 16.3 s 17(1) …. 16.25 s 17(2) …. 16.16 s 18 …. 16.25 s 19(1) …. 16.42 s 19(2)–(5) …. 16.38 s 19A …. 16.29 s 20(1) …. 16.25, 16.48 s 23B(1) …. 21.16, 21.21 s 24(2) …. 21.22 s 24(4) …. 14.66 s 24AA …. 21.6 s 24AB …. 21.12 s 24AF(1) …. 21.34 s 24AH(1) …. 21.35 s 24AI(1)(a) …. 21.41 s 24AM …. 21.40 s 25 …. 6.60, 13.6 s 26(1) …. 13.6, 25.59 s 26(4) …. 16.44 s 28A …. 15.85 s 28B …. 15.108 s 28C(2)(a) …. 3.78

s 28D …. 1.30 s 28F …. 15.81, 16.45 s 28G …. 15.109 s 28HA …. 15.111 s 28I …. 15.142 s 28IA …. 15.98 s 28IB …. 15.103 s 28ID …. 15.105 s 28N …. 15.37 s 31B …. 13.100 s 33 …. 26.35 s 43 …. 12.6 s 45 …. 12.3 s 48 …. 11.34 s 48(2) …. 11.49 s 48(3) …. 11.45 s 49(a) …. 11.64 s 49(b) …. 11.65 s 49(c) …. 11.66 s 51 …. 12.33 s 51(1)(b) …. 12.57 s 51(2) …. 12.39 s 51(3) …. 12.55 s 51(4) …. 12.57 s 52 …. 12.54 s 53 …. 13.53, 26.33 s 54 …. 13.53, 26.33 s 55 …. 13.100 s 57 …. 13.84 s 58 …. 11.20 s 59 …. 11.72, 13.82 s 59(1) …. 11.18 s 59(2) …. 13.85 s 60 …. 13.86 s 61 …. 20.84

s 63 …. 13.26 s 73 …. 10.69 s 74 …. 10.69 s 75 …. 10.45, 10.46 s 78 …. 10.59 s 83 …. 10.131 s 84 …. 18.33 WESTERN AUSTRALIA Age of Majority Act 1972 …. 1.21 Civil Liability Act 2002 …. 1.51 Pt 1B …. 10.69 Pt 1D …. 11.29, 13.100 Pt 1F …. 21.32 Pt 2 Div 4 …. 15.37 s 3 …. 12.6 s 3A …. 7.8, 12.3 s 3B(1) …. 3.78 s 5 …. 6.19 s 5AAC …. 11.29 s 5AAC(2) …. 11.29 s 5AAD …. 11.29 s 5AI …. 21.35 s 5AI(1) …. 21.34 s 5AJA …. 21.40 s 5AK(1)(a) …. 21.41 s 5B …. 11.34 s 5B(2) …. 11.49 s 5C …. 12.33 s 5C(1)(b) …. 12.57 s 5C(2) …. 12.39 s 5C(3) …. 12.55 s 5C(4) …. 12.57 s 5D …. 12.54 s 5E …. 13.67

s 5F …. 13.53, 26.33 s 5H …. 13.67 s 5K …. 13.9 s 5L …. 13.34 s 5L(4) …. 13.33 s 5M …. 11.63 s 5N …. 13.53, 26.33 s 5O …. 11.63, 13.93, 26.31 s 5O(2) …. 13.87 s 5P …. 13.100 s 5PA …. 13.90 s 5PB …. 11.72, 13.89 s 5PB(1) …. 13.96 s 5PB(2) …. 13.96 s 5S …. 10.59 s 5S(1) …. 10.45 s 5T …. 10.46 s 5W …. 10.131 s 5W(b) …. 10.138 s 5X …. 18.33 s 6 …. 12.3 s 9(1) …. 15.110 s 9(4) …. 15.108 s 10 …. 15.109 s 10A …. 15.111 s 11 …. 15.81 s 11(1) …. 16.45 s 12 …. 15.98 s 12(5) …. 15.103 s 52 …. 10.148 s 54(2) …. 13.35 s 58 …. 1.30 Criminal Code …. 3.67 s 8(2) …. 13.75 s 246 …. 6.35, 6.36

s 248 …. 6.32 s 250 …. 6.34 s 254 …. 6.37 s 273 …. 6.34 s 313 …. 6.36 s 338E(1) …. 3.33 s 371A …. 13.75 Criminal Injuries Compensation Act 2003 …. 1.48 Criminal Investigation Act 2006 s 25 …. 3.70 s 33 …. 4.37 s 128 …. 3.66 Defamation Act 2005 …. 22.8 Pt 3 Div 1 …. 23.102 s 3(d) …. 23.102 s 4 …. 23.8 s 6 …. 22.9 s 6(2) …. 22.26 s 7 …. 22.18 s 8 …. 22.48 s 9 …. 22.84 s 10 …. 22.81 s 11 …. 22.21 s 17 …. 23.103 s 20 …. 23.133 s 21(1) …. 22.62 s 22(2) …. 22.62 s 22(3) …. 23.140 s 24(1) …. 23.2 s 24(2) …. 23.49 s 25 …. 23.7 s 26 …. 23.12 s 27(1) …. 23.17 s 27(2)(a) …. 23.21 s 27(2)(b) …. 23.29

s 28(1) …. 23.68 s 29 …. 23.65 s 30(1) …. 23.47 s 31 …. 23.91 s 32 …. 22.93, 23.95 s 32(3)(f)(ii) …. 22.93 s 33 …. 23.97 s 34 …. 23.117 s 35 …. 23.119 s 35(2) …. 23.120 s 36 …. 15.24, 23.114 s 37 …. 15.23, 23.113 s 38 …. 23.137 s 42 …. 23.9 Dog Act 1976 s 3(1) …. 26.20, 26.23 s 33D …. 26.20, 26.23 s 46 …. 26.17 s 46(2) …. 26.21 s 46(3) …. 26.17 Equal Opportunity Act 1984 …. 22.40 Evidence Act 1906 s 49 …. 17.25 Fair Trading Act 2010 Pt 3 …. 19.93 s 11 …. 19.96 s 110 …. 19.97 Fatal Accidents Act 1959 …. 16.45 s 3 …. 16.16 s 3(1) …. 16.18 s 4 …. 16.3 s 5(2) …. 16.42 s 6(1) …. 16.17 s 6(1B) …. 16.25 s 7 …. 16.25

s 9(1) …. 16.25 Sch 2 …. 16.16 Sch 2 cl 1 …. 16.19 Sch 2 cl 1(d) …. 16.18 Sch 2 cl 1(e) …. 16.18 Sch 2 cl 1(h) …. 16.17 Guardianship and Administration Act 1990 …. 6.18 Pt 9B …. 6.26 s 110P …. 6.26 s 110ZH …. 6.24 Highways (Liability for Straying Animals) Act 1983 s 3(1) …. 26.35 s 3(3) …. 26.2, 26.24 s 3(4) …. 26.32 Human Tissue and Transplant Act 1982 s 21 …. 6.23 Interpretation Act 1984 s 13A(3) …. 16.17 Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 s 3A …. 13.6 s 4(1) …. 13.6, 13.21, 13.41, 25.59 s 4(2)(a) …. 16.44 s 4(2)(d) …. 16.54 s 4(2)(e) …. 16.54 s 7 …. 21.6 s 7(1)(b) …. 21.12 s 7(1)(c) …. 21.16 s 7(2) …. 21.22 Law Reform (Miscellaneous Provisions) Act s 3 …. 17.12 s 4 …. 16.51 s 4(2) …. 22.81 s 4(2)(a) …. 16.56 s 4(2)(c) …. 16.57 s 4(2a) …. 16.55

s 5 …. 15.142 Legal Profession Act 2008 …. 9.118 Limitation Act 1935 …. 14.4 s 13(1) …. 19.62 s 27 …. 14.49 s 37 …. 19.91 s 49 …. 14.5 Limitation Act 2005 …. 14.1, 14.4, 14.50 s 3(1) …. 14.40 s 6 …. 14.19 s 9 …. 5.102, 14.5 s 12 …. 4.71 s 13(1) …. 3.88, 14.10, 25.76 s 13(2) …. 16.48 s 14(1) …. 3.88, 14.8 s 15 …. 22.94 s 17 …. 14.67 ss 29–32 …. 14.31 s 30 …. 14.34 s 31 …. 14.34 s 32 …. 14.34 s 33 …. 14.45 ss 35–36 …. 14.31 s 38 …. 14.50 s 39(3) …. 14.62 s 39(4) …. 14.62 s 40 …. 22.94 s 59 …. 5.104 s 55 …. 14.19 s 60 …. 14.12 Local Government (Miscellaneous Provisions) Act 1960 s 401 …. 10.130 Magistrates Court Act 2004 s 37 …. 6.56 Motor Vehicle (Third Party Insurance) Act

1943 …. 9.65, 20.60 Occupational Safety and Health Act 1984 …. 9.49 Occupiers Liability Act 1985 s 5 …. 9.17 Parliamentary Privileges Act 1891 s 1 …. 23.23 Police Act 1892 s 137 …. 20.20 Property Law Act 1969 …. 4.70 s 74(1) …. 4.8 s 121 …. 25.21 Restraining Orders Act 1997 …. 3.35 Sale of Goods Act 1895 s 25(2) …. 5.53 School Education Act 1999 s 6 …. 9.69 School Education Regulations 2000 reg 40(2) …. 6.54 Sentencing Act 1995 …. 3.34 Strata Titles Act 1985 s 35(1)(c) …. 18.28 Supreme Court Act 1935 s 32 …. 15.144 s 32(2) …. 15.148 Supreme Court Rules O 34 r 6 …. 23.136 Volunteers and Food and Other Donors (Protection from Liability) Act 2002 Pt 2 …. 13.102 Pt 3 …. 13.103 Workers’ Compensation and Injury Management Act 1981 …. 9.54 s 92 …. 15.137 UNITED KINGDOM Animals Act 1971 …. 26.36 s 8 …. 26.35

Common Law Procedure Act 1852 …. 2.10 Contagious Diseases (Animals) Act 1869 s 75 …. 18.24 Dog Nuisance Act 1830 …. 26.16 Factories Act 1937 s 22(1) …. 18.29 Factories Amendment Act 1844 …. 9.28, 9.48 Factory Regulation Act 1833 …. 9.48 Fatal Accidents Act 1848 …. 16.3 Health and Morals of Apprentices Act 1802 …. 9.48 Human Rights Act 1998 …. 7.31 Limitation Act 1939 …. 14.17 s 26 …. 14.17 Lord Campbell’s Act see Fatal Accidents Act 1848 …. 16.29 National Insurance (Industrial Injuries) Act 1946 …. 9.53 Prescription Act 1832 s 3 …. 25.21 Protection from Harassment Act 1997 …. 18.23 Torts (Interference with Goods) Act 1977 …. 5.56 Waterworks Clauses Act 1847 s 35 …. 18.26 Workmen’s Compensation Act 1897 …. 1.46, 9.28, 9.53

Contents Detailed Contents Preface Table of Cases Table of Statutes Chapter 1

An Introduction to Torts

Chapter 2

The Distinction Between Trespass and Case

Chapter 3

Trespass to Person

Chapter 4

Trespass to Land

Chapter 5

Trespass to Personal Property

Chapter 6

Defences to Trespass

Chapter 7

Intentional Damage to a Person

Chapter 8

The Negligence Action

Chapter 9

Established Duties of Care

Chapter 10

Novel Duties of Care

Chapter 11

Standard of Care and Breach

Chapter 12

Damage — Causation and Scope

Chapter 13

Defences to Negligence

Chapter 14

Limitation of Actions

Chapter 15

Judicial Remedies

Chapter 16

Wrongful Death

Chapter 17

Service and Family Relations

Chapter 18

Public and Statutory Duties

Chapter 19

Misrepresentation in Torts — Negligence and Deceit

Chapter 20

Vicarious Liability and Non-Delegable Duties

Chapter 21

Multiple Tortfeasors

Chapter 22

Defamation

Chapter 23

Defences and Remedies in Defamation

Chapter 24

Interference with Business Interests

Chapter 25

Nuisance

Chapter 26

Liability for Animals

Index

Detailed Contents Contents Preface Table of Cases Table of Statutes Chapter 1 An Introduction to Torts 1 Introduction 2 What is a Tort? Act or Omission Infringement of Rights Action for Damages 3

Parties — Capacity to Sue and be Sued Minors Intellectually Disabled Persons

4

Comparison with Other Areas of the Law Contract and Torts Crimes and Torts

5

The Evolution of Torts Law The Impact of Statute The Impact of Insurance The High Court Further Reading

Chapter 2 The Distinction Between Trespass and Case 1 Introduction 2 Trespass Direct Interference Fault of the Defendant Actionable Per Se Onus of Proof 3 4 5

Action on the Case Criticisms of the Australian Position Innominate Actions on the Case Further Reading

Chapter 3 Trespass to Person 1 Introduction 2 Battery Direct Application of Force Offensive Contact Lack of Consent Knowledge of the Contact Fault 3

Assault Threat Ability to Carry Out the Threat Fault Stalking and Domestic Violence

4

Queensland Position on Common Law Assault and Battery Definition of Assault

Differences Between the Common Law and s 245 5

False Imprisonment Direct Interference Restraint in All Directions Fault Lawful Justification

6

Remedies Nominal Damages Compensatory Damages Aggravated and Exemplary Damages Injunction and Other Orders

7

Limitation Period Further Reading

Chapter 4 Trespass to Land 1 Introduction 2 Title to Sue Tenants and Lessors Licensees Co-owners Easements and Profits à Prendre Purchasers Under a Contract of Sale 3

Actionable Interference Direct Interference Interference with Land Unauthorised Interference

4

Fault

5

Examples of Actionable Interferences Placing or Leaving Objects on Land Animals Transient Interferences with Airspace Continuing Trespass

6

Remedies Self-help Damages Injunction Mesne Profits Statutory Relief

7

Limitation Period Further Reading

Chapter 5 Trespass to Personal Property 1 Introduction 2 Trespass to Chattels Title to Sue Direct Interference Fault Actionable Without Proof of Damage 3

Conversion Title to Sue Repugnant Dealing Fault

4

Detinue Title to Sue

Detention of Goods Fault 5 6

Innominate Tort by Reversionary Owners Remedies Self-help Damages Injunction

7

Limitation Period Further Reading

Chapter 6 Defences to Trespass 1 Introduction 2 Inevitable Accident 3 Consent Scope of the Consent Voluntary Capacity to Consent Consent to Medical Treatment Revocation or Withdrawal of Consent 4 5 6 7 8 9

Self-Defence Defence of Another Provocation (Queensland) Defence of Property Self-Help Necessity Imminent Threat Reasonable Necessity Imminent Threat Not Due to Defendant’s Negligence

Medical Necessity 10 Defences Specific to Trespass to Personal Property Jus Tertii Loss of Possession Distress Damage Feasant 11 12 13 14 15 16 17

Statutory Authority Disciplinary Powers Judicial Acts Execution of Process Crown Authority Contributory Negligence Mistake, Insanity and Involuntarism Mistake Insanity and Involuntarism

18 Ex Turpi Causa Oritur Non Actio Further Reading Chapter 7 Intentional Damage to a Person 1 Introduction 2 Intentional Infliction of Psychiatric Injury 3 Malicious Prosecution Proceedings Initiated Against the Plaintiff by the Defendant Proceedings Terminated in Favour of Plaintiff Malice Absence of Reasonable and Probable Cause Damage Remedy 4

Privacy

Development of a Tort of Privacy under the Common Law Law Reform Other Jurisdictions Further Reading Chapter 8 The Negligence Action 1 Introduction 2 The Structure of a Negligence Action Reasonable Foreseeability 3

Overview of the Elements of the Negligence Action Duty of Care Breach of Duty Damage

4

Questions of Law and Fact Further Reading

Chapter 9 Established Duties of Care 1 Introduction Scope of the Duty of Care Established Duties of Care 2

Occupiers of Premises Scope of the Duty

3

Employers Scope of the Duty Legislation

4

Road Users Scope of the Duty Legislation

5

Persons in Control of Others School Authorities and Students School Authorities and Third Parties Parent and Child Parent and Third Party Prison Authorities and Prisoners Prison Authorities and Third Parties

6

Professionals Medical Professionals Legal Professionals

7

Manufacturers of Goods Scope of the Duty Legislation Further Reading

Chapter 10 Novel Duties of Care 1 Introduction 2 Historical Summary Reasonable Foreseeability The Anns Approach The Proximity Approach The Caparo Approach The Incremental Approach The Salient Features Approach 3

The Current Approach of the High Court Sullivan v Moody Reasonable Foreseeability

Legal Principle v Legal Policy Legal Policy v Public Policy 4 5

Scope of the Duty Pure Psychiatric Injury Recognised Psychiatric Injury Reasonable Foreseeability Relevant Factors Pure Psychiatric Injury in an Established Duty

6

Pure Economic Loss Relational Loss Negligent Provision of Services Defective Buildings

7

Liability of Public Authorities Statutory Power Relevant Factors Road Authorities Further Reading

Chapter 11 Standard of Care and Breach 1 Introduction 2 Standard of Care Objective Test 3

Breach of Standard Foreseeable and Not Insignificant Risk Reasonable Response to the Risk Balancing the Factors

4

Procedure and Proof

Functions of Judge and Jury Appeals Onus and Standard of Proof Res Ipsa Loquitur (The Thing Itself Speaks) Further Reading Chapter 12 Damage — Causation and Scope 1 Introduction 2 Recognised Kind of Damage Damage Not Recognised at Law 3

Factual Causation Common Law Tests Civil Liability Legislation Multiple Tortfeasors Onus of Proof

4

Scope of Liability Remoteness of Damage Intervening Acts Legally Significant Cause Further Reading

Chapter 13 Defences to Negligence 1 Introduction 2 Contributory Negligence The Common Law Position Modern Contributory Negligence Establishing Contributory Negligence Apportionment

Legislative Presumptions of Contributory Negligence Appeals 3

Volenti Non Fit Injuria (No Injury is Done to One Who Voluntarily Consents) Full Knowledge of Risk Voluntary Acceptance of Risk

4

Illegality Joint Illegal Enterprise Plaintiff’s Illegal Activity

5

Immunity from Civil Liability Provision of a Professional Service Obvious Risks Inherent Risks Rescue Cases Volunteers

6

Exclusion of Liability Clauses Further Reading

Chapter 14 Limitation of Actions 1 Introduction 2 The Limitation Period Personal Injury Property Damage and Economic Loss 3

Accrual: Commencement of the Period Personal Injury Property Damage Economic Loss

4

Suspension and Extension of the Limitation Period

Suspension of Time Extension of Time 5

Contribution Between Tortfeasors Further Reading

Chapter 15 Judicial Remedies 1 Introduction 2 The Equitable Remedies Declaration Account Injunction 3

Damages at Common Law The Categories of Damages

4

Principles of Assessment of Compensatory Damages Egg-shell Skull Rule The Indemnity Principle Once and for All Rule Lump Sum Rule Duty to Mitigate

5

Property Damage Cost of Repair and Diminished Value Replacement Costs Consequential Losses

6

Damages for Personal Injuries Compensatory Damages Hospital and Medical Expenses Loss of Earning Capacity

Gratuitous Services Gratuitous Domestic Services Non-Pecuniary General Damages Other Expenses Achieving the Indemnity Principle The Award Further Reading Chapter 16 Wrongful Death 1 Introduction 2 Compensation to Relatives Right of Action Causation Dependants Executor Brings the Action Damages that May be Claimed for Wrongful Death Assessment of Damages for Wrongful Death Interest Limitation Period 3

Survival of Causes of Action Damages Limitation Period Further Reading

Chapter 17 Service and Family Relations 1 Introduction 2 Loss of an Employee’s Services Damages

3

Interference with Domestic Relations Between Husband and Wife Loss of Consortium and Servitium Seduction, Enticement and Harbouring Damages

4

Interference with Domestic Relations Between Parent and Child Loss of Services Seduction, Enticement and Harbouring Further Reading

Chapter 18 Public and Statutory Duties 1 Introduction 2 Breach of Statutory Duty A Private Cause of Action The Duty was Imposed on the Defendant The Statute was Intended to Prevent that Kind of Harm The Plaintiff was a Person for Whose Protection the Statute was Passed Breach of the Duty Causation Defences 3

Abuse of Process Improper Motive Damage Defences

4

Misfeasance in Public Office Invalid or Unauthorised Act Committed with Malice Public Officer in Purported Discharge of Duty

Damage Further Reading Chapter 19 Misrepresentation in Torts — Negligence and Deceit 1 Introduction 2 Actionable Misrepresentations 3 Negligent Misrepresentation Historical Background Duty of Care Scope of the Duty of Care Breach and Damage Contributory Negligence Remedies Limitation Period 4

Deceit (Fraudulent Misrepresentation) Misrepresentation of Fact Scienter (Knowledge of Falsity) Intended Reliance Reliance Damage Remedies Limitation Period

5

Statutory Actions for Misrepresentation Person or Corporation Trade or Commerce Misleading or Deceptive Conduct Disclaimers

Remedies Limitation Period Further Reading Chapter 20 Vicarious Liability and Non-Delegable Duties 1 Introduction 2 Vicarious Liability Employer and Employee Course of Employment Principal and Agent 3

Non-Delegable Duties Employers Schools Hospitals Occupiers of Premises Characteristics of a Non-Delegable Duty Scope and Breach of Duty Legislation

4

Indemnities Further Reading

Chapter 21 Multiple Tortfeasors 1 Introduction 2 Joint Tortfeasors The Legislation 3 4

Several Tortfeasors Concurrent Tortfeasors Contribution by Concurrent Tortfeasors

Assessment of Contribution Indemnity and the Rule in Lister v Romford Ice 5

Proportionate Liability Apportionable Claim Concurrent Wrongdoer Exclusions Apportioning Liability Further Reading

Chapter 22 Defamation 1 Introduction 2 History of Defamation Law in Australia National Defamation Law 3

Description of Defamation Common Law Defamation Acts

4 5

Jurisdiction Elements of Defamation Defamatory Matter Defamatory on the Facts Reference to the Plaintiff Publication Parties to the Action Limitation Period

6

Australian Consumer Law Defamation Further Reading

Chapter 23 Defences and Remedies in Defamation 1 Introduction 2 Defences Justification (Truth) Contextual Truth Absolute Privilege Qualified Privilege Protected Reports Implied Constitutional Protection Fair Comment/Honest Opinion Innocent Dissemination Triviality Consent Acceptance of Offer to Make Amends 3

Remedies Injunction Damages Further Reading

Chapter 24 Interference with Business Interests 1 Introduction 2 Passing Off Reputation False Representation Calculated to Deceive Representation Damage Examples of Passing Off Defences

Remedies Legislation 3

Interference with Contractual Relations Contract Knowledge of the Contract Intention Interference Breach of Contract Damage Defences Remedies

4

Conspiracy Agreement Intention Damage Defences Remedies

5

Intimidation Threat of an Unlawful Act Compliance Intention Damage Defences Remedies

6

Injurious Falsehood False Statement

Publication Malice Damage Remedies Australian Consumer Law Comparison with Defamation Further Reading Chapter 25 Nuisance 1 Introduction 2 Private Nuisance Title to Sue Who Can be Sued Rights Capable of Protection Interference with the Protected Right Interference with Enjoyment Damage Onus of Proof Defences Remedies Limitation Period 3

Public Nuisance Title to Sue Who Can be Sued? Interference with a Public Right Substantial and Unreasonable Interference Onus of Proof

Defences Remedies 4

A Comparison of Nuisance and Negligence Historical Development The Interests Protected and the Right to Sue The Class of Wrongdoers Basis of Liability Onus of Proof Damage Defences Remedies Further Reading

Chapter 26 Liability for Animals 1 Introduction 2 Strict Liability Scienter Strict Liability for Dogs Cattle Trespass 3

Fault Trespass Negligence Rule in Searle v Wallbank Nuisance Further Reading

Index

[page 1]

Chapter 1 An Introduction to Torts 1

Introduction

1.1 The slow evolution of Australian torts law from its beginnings in 12th and 13th century feudal England, and its changing concerns in terms of its aims, has resulted in there being no generally accepted definition of a ‘tort’. The most that can be said is that the law of torts is a collection of civil wrongs (torts) for which the common law will provide a remedy, usually in the form of an award of monetary compensation (damages). The word ‘tort’, meaning ‘wrong’, comes from the Latin word tortus, meaning crooked or twisted. 1.2 The wrongs which are the subject of individual tort actions are the acts or omissions which infringe one or more of a range of rights recognised by the common law including: rights of personal safety and integrity (for example, the torts of assault, battery, false imprisonment and negligence); rights associated with the possession and ownership of land (for example, the torts of trespass to land, nuisance and negligence) and of personal property (for example, the torts of trespass to chattels, conversion and negligence); rights associated with economic and commercial interests (for example, the torts of passing off, conspiracy, deceit and negligence); and personal reputation (for example, the tort of defamation).

2

What is a Tort?

1.3 Each tort action has its own legal requirements or elements with consequent differences in defences and remedies, and many of these tort actions will be discussed in the coming chapters. Generally, however, all torts have the following key features in common, constituting:1 an act or omission; the infringement of a legally recognised right; and an action for damages. [page 2]

Act or Omission 1.4 At common law, there is an important distinction between acts causing harm (misfeasance) and omissions or failures to act resulting in harm (nonfeasance). Traditionally, the common law provides that a person is under no legal obligation to provide assistance to a person endangered from a source unconnected with that person. Therefore, under existing law, a good swimmer may be under no duty to help someone in danger of drowning: Quinn v Hill [1957] VR 439. Neither is a doctor under a legal duty to assist strangers; but see Lowns v Woods (1996) Aust Torts Reports ¶81-376. See also Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145 at [86]–[90] Gaudron, McHugh and Gummow JJ. 1.5 In regard to misfeasance, or positive actions causing harm, the act must have been voluntary in the sense that the tortfeasor (the wrongdoer who committed the tort) knowingly committed the act, but it is not usually necessary that the tortfeasor knew that harm would result from the act:

Consolidated Company v Curtis & Son [1892] 1 QB 495. In this case, the defendant auctioneers innocently sold and delivered goods to a third party. They knowingly sold the goods, but did not intend to deprive the plaintiff owner of title to the goods because they were unaware of his status as the true owner and believed the person who delivered the goods for sale to be the owner. They were, nevertheless, liable for the tort of conversion. 1.6 Another term that is used when considering acts or omissions is fault. Fault may consist of intentionally or negligently doing the act that caused the harm. Some torts, such as misfeasance in public office, require that the defendant intended to harm the plaintiff: Northern Territory v Mengel (1995) 185 CLR 307. For other torts, it is sufficient that the defendant was negligent in doing the act that caused the harm: L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225. Negligence has been defined in the most general sense by B Alderson in Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 at 784 as: … the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable and prudent man would not do.

1.7 Finally, and exceptionally, some torts impose liability in the absence of both negligence and intention. These are torts imposing strict liability for the harm caused: Rylands v Fletcher (1868) LR 3 HL 330. See also Transco plc v Stockport Metropolitan Borough Council [2003] 3 WLR 1467. 1.8 Generally, motive (the tortfeasor’s reason for acting) is not relevant to liability and will not normally convert a lawful act motivated by ill will into an unlawful one. Exceptionally, motive may be a justification for an act that is otherwise tortious, as where in an emergency it becomes necessary to commit what would otherwise be a trespass in order to preserve life or property: Proudman v Allen [1954] SASR 336. Motive may be relevant to the type and assessment of damages: Bradford Corporation v Pickles [1895] AC 587; Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25.

[page 3] 1.9 Malice, meaning ‘dishonest or improper motive’, is also generally irrelevant to liability except in those few torts where malice is one of the elements of the cause of action, as it is in the torts of malicious prosecution (A v New South Wales (2007) 230 CLR 500; 233 ALR 584; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343) and conspiracy: Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392. Malice in a defendant may also negative some defences, for example in defamation, and may be relevant to the type and assessment of damages.

Infringement of Rights 1.10 Since not all forms of harm are compensable in the law of torts,2 the second key feature of a torts action is that the defendant’s act or omission has infringed a legally recognised right of the plaintiff. This will be particularly important where the action involves pure financial loss rather than, for example, an interference with more traditional rights, such as those associated with land and personal safety. As Gummow J commented in the pure economic loss case of Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [192], the first issue is to identify the interests or rights which the plaintiff claims have been infringed. Unless the plaintiff can establish that there has been an interference or infringement with a legally recognised right, the plaintiff will have no cause of action in torts law: see, for example, Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404; Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391. 1.11 In Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, for example, the Australian High Court held that the owners of a racecourse had no cause of action against the defendant who broadcast commentaries from a platform on adjoining land, because there is no legal

right not to be overlooked. Similarly, there is no legal right to uninterrupted television reception: Hunter v Canary Wharf Ltd [1996] 2 WLR 348; [1996] 1 All ER 482. In Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391, by a 6:1 majority decision, the High Court denied that a person has (or had) a right to have their mother’s pregnancy terminated because of the likelihood of their being born catastrophically disabled. See also Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457. 1.12 However, the common law is constantly evolving and it is possible for new rights to be recognised by the courts. For example, while previously the law recognised no right of privacy (Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479), more recently the High Court has acknowledged that there is growing support for the recognition of a right of privacy: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; 185 ALR 1.3 Other possible rights which might, in the future, be recognised by the common law as being appropriate for protection by torts law are those relating to the right to be free from sexual harassment: see, for example, Khorasandjian v Bush [1993] QB 727; Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 996; [page 4] Hunter v Canary Wharf Ltd [1996] 2 WLR 348; [1996] 1 All ER 482. Torts actions relating to protection from workplace harassment and sexual, religious, racial or other forms of discrimination have also been suggested as possibilities for the future.4 1.13

Rights recognised by the common law can be divided into two types:

absolute rights — any interference with which gives rise to an action in tort, that is, the right is actionable per se (plaintiff need not suffer damage from the interference); and

qualified rights — interference with which only gives rise to an action in tort when that interference has caused a recognisable form of harm to the plaintiff. 1.14 The trespass to land action, for example, protects the absolute rights associated with the possession of land and any direct interference with those rights will give rise to a trespass action: Plenty v Dillon (1991) 171 CLR 635. In contrast, where there is an indirect interference with a person’s possession of land, then the protection given by the nuisance and negligence actions, for example, is qualified by the need for the plaintiff to suffer a legally recognised form of damage — ‘the gist of the action’ — as a result of the indirect interference: Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182. 1.15 The significance of the need to prove a legally recognised form of harm in actions involving infringement of a qualified right, such as in a negligence action, has been reaffirmed by the decision of the Australian High Court in CSR Ltd v Della Maddalena (2006) 224 ALR 1; 80 ALJR 458. In that case, the court indicated that the common law recognises no right to be compensated for suffering from the fear of developing an occupational disease such as mesothelioma, unless such fear amounts to a diagnosable psychiatric illness. See also the English Court of Appeal decision in Rothwell v Chemical & Insulating Co Ltd [2006] 4 All ER 1161.

Action for Damages 1.16 Damages are a monetary sum awarded to the plaintiff by a court to compensate, so far as money is able, for the infringement of a legally recognised right. The key importance of this feature of a torts action was confirmed by Crennan J in Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [264], where her Honour said: Providing compensation if liability is established is the main function of tort law; compensation is “[t]he one principle that is absolutely firm, and which must control all else;” if the principle cannot be applied the damage claimed cannot be actionable. [footnote omitted]

1.17 As will be discussed further in Chapter 15, there are different kinds of damages: nominal damages; contemptuous damages; compensatory damages; aggravated damages; and exemplary or punitive damages. [page 5] 1.18 The right to damages for personal injury has been affected by legislation, either by placing limitations on the damages that may be recovered, or limiting the right to take a common law action when a no-fault compensation scheme exists: see 1.45. 1.19 The fact that a tort will ground an action for damages at common law, however, does not exclude other remedies in appropriate cases. For example, the equitable remedies of injunction, declaration and account may also be available in regard to certain torts. An injunction is available, for example, to prevent interferences to the possession and enjoyment of land and also to prevent the publication of defamatory material, where damages may not be an adequate remedy: Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660: see Chapter 15.

3

Parties — Capacity to Sue and be Sued

1.20 The basic rule is that any person who is of sound mind and at least 18 years old may sue and/or be sued in relation to tortious acts and omissions. Special rules apply, or have in the past applied, to various special categories of

persons, including the Crown, the judiciary, married women, partnerships, corporations, trade unions, assignees and bankrupts.5 In this section, minors and intellectually disabled persons are considered.

Minors 1.21 Minors are persons under the age of 18 years: see Age of Majority Act 1974 (ACT); Minors (Property and Contracts) Act 1970 (NSW); Age of Majority Act 1974 (NT); Age of Majority Act 1974 (Qld); Age of Majority (Reduction) Act 1970 (SA); Age of Majority Act 1973 (Tas); Age of Majority Act 1977 (Vic); Age of Majority Act 1972 (WA). 1.22 A minor may sue for harm caused to them by another person’s tort, including for prenatal injuries: Watt v Rama [1972] VR 353; Lynch v Lynch (1991) 25 NSWLR 411; X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26; Bowditch v McEwan (2002) 36 MVR 235. As a matter of procedure, a minor sues in tort by a next friend and defends a tortious action through a guardian ad litem. 1.23 Minors may be liable for their torts upon ordinary principles, provided they have the capacity to form any necessary intention where that is a required element of the tort, for example, in an action in deceit. In regard to the position of minors who are sued in the tort of negligence, see 11.9–11.10. 1.24 There is no bar to tortious proceedings between parent and child; instead, it will depend upon the circumstances of the case and the nature of the tort: St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185; Lynch v Lynch (1991) 25 NSWLR 411; Hahn v Conley (1971) 126 CLR 276; Chang v Chang [1973] 1 NSWLR 708: see 9.77. 1.25 However, Australian courts deny the enforceability in tort of any general parental duty of maintenance of a child or any general custodial duty: Rogers v Rawlings [1969]

[page 6] Qd R 262; Cameron v Commissioner for Railways [1964] Qd R 480; but compare St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185. The ‘need to protect parents’ from actions brought by their children was one of the grounds used by Crennan J in Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391, to find that a doctor owed no duty of care to an unborn child requiring the doctor to advise its mother of the likelihood of its being born disabled: at [250].

Intellectually Disabled Persons 1.26 As with minors, an intellectually disabled person may sue or be sued in torts and a legal representative will be appointed to act on his or her behalf: Yonge v Toynbee [1910] 1 KB 215. 1.27 The more difficult issue is whether an intellectual disability will provide a defence in a civil action in a similar way as is possible in a criminal law action. The answer will depend first, upon the type and degree of disability and, second, upon the requirements of the particular tort. The defendant will not be liable if he or she is unable to control their bodily actions so that they are acting in a state of automatism or, for example, where the defendant is in a state of hypoglycaemic shock. However, where the defendant is aware of the nature and quality of his or her act, then it is no defence that the defendant is mentally incapacitated: Morris v Marsden [1952] 1 All ER 925; Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56; Carrier v Bonham [2002] 1 Qd R 474.

4

Comparison with Other Areas of the Law

1.28 Just as there is overlap in the torts protecting an individual’s legal rights (for example, both nuisance and negligence protect against indirect interferences with the rights of possession of land), there is also overlap with the protection afforded by other areas of the common law such as contract and criminal law. The relationship between these common law areas can be illustrated by the following diagram:

[page 7]

Contract and Torts 1.29 Initially, the law of contract excluded tortious liability when both had potential application to the same set of facts. Some of the first exceptions to this exclusionary rule were persons involved in common callings, such as innkeepers, common carriers and surgeons, who were held liable in tort unless such liability was expressly excluded under the contract: Groom v Crocker [1939] 1 KB 194. Today in Australia, concurrent liability is possible under both the law of torts and contract, unless such liability has been excluded by statute or by the parties to the contract if that is statutorily permitted: Travel Compensation Fund v Tambree (t/as R Tambree &

Associates) (2005) 224 CLR 627; 222 ALR 263; Astley v Austrust Ltd (1999) 197 CLR 1; 161 ALR 155; Voli v Inglewood Shire Council (1963) 110 CLR 74; Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69. 1.30 Important differences between an action for breach of contract and a tort action are as follows: Generally, the law of contract seeks to vindicate a single right or interest — the performance of a promise agreed to by parties to a contract. The law of torts seeks to vindicate wider and more diverse rights including personal safety and integrity, protection of property, commercial interests and protection of reputation. Under the law of contract, legal obligations are imposed in a factual situation from which, as a minimum, an inference of agreement between the parties can be assumed. In contrast, under torts law, legal obligations are imposed in factual situations from which no appearance of agreement can be inferred or assumed. Damages for breach of contract represent the value of the loss of the contractual bargain, including loss of any profit, whereas in torts, damages represent compensation for the loss and injury flowing from the negligent act or omission. Also, damages in contract may be the same whether the breach is intentional or unintentional and irrespective of motive, whereas for some torts damages may vary because of these features. The civil liability legislation in some states allows for the parties to a contract to restrict the operation of the respective Acts other than those aspects relating to proportionate liability and the assessment of damages: Civil Liability Act 2002 (NSW) s 3A; Civil Liability Act 2003 (Qld) s 7(3); Civil Liability Act 2002 (Tas) s 3A; Wrongs Act 1958 (Vic) s 28D; Civil Liability Act 2002 (WA) s 58. For a discussion of the interaction between the tort of negligence and contract law, see Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214

ALR 355; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163.6 [page 8]

Crimes and Torts 1.31 The earliest torts were concerned with the punishment and deterrence of wrongdoing, and the areas of crime and tort were not regarded as separate areas of law until near the end of the 13th century. Today, one important difference between torts and criminal actions is that the former are initiated by and against parties in their individual capacities and are designed to vindicate private rights. In comparison, criminal proceedings are largely initiated and controlled by the state, with the aim of punishing those who harm society by transgressing society’s rules and deterring others from doing likewise. 1.32 The onus of proof in crime and torts also differs. The onus is on the prosecution in a criminal trial to prove its case beyond reasonable doubt, whereas in a civil torts action the plaintiff need only prove their case on the balance of probabilities. 1.33 Another distinction arises in respect of the significance of intention. As a general rule in criminal law, the accused must be shown not only to have intended the act but also its consequences. In most torts, provided the defendant’s act was voluntary, the tortfeasor may be liable for the consequences of the wrongdoing whether they were intended or not: see 1.6. 1.34 The primary remedy in torts is compensatory damages, which have the object of returning the injured party to the position they would have been in had the wrong not been committed against them. The primary object of criminal law penalties (for example, imprisonment, a fine or community

service) is to punish the wrongdoer and to deter others from engaging in criminal activity. Moreover, in criminal law, the degree of punishment is measured against the degree of culpability rather than the harm caused. In torts, the remedy, which usually involves the calculation of the quantum of damages, is determined by reference to the degree of harm suffered by the plaintiff rather than by reference to the manner in which it was caused. 1.35 While the parallel development of the criminal law has reduced the importance of the role of deterrence in tort law, as Hayne J commented in Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [165]: … it is not useful to attempt to divide the litigious world into only two parts, one marked “civil” and the other marked “criminal”. The litigious world is more complex than that. And as Windeyer J pointed out in Uren v John Fairfax & Sons Pty Ltd [(1966) 117 CLR 118 at 149], “the roots of tort and crime … are greatly intermingled”. No doubt this historical intermingling contributes to the considerable overlapping that can be seen between the purposes to which the law of tort and the criminal law seek to give effect. Because both the law of tort and the criminal law have several and overlapping purposes and effects, it is incomplete to see the former as concerned only with harm and its compensation, and the latter as concerned only with fault and its punishment. [footnotes omitted]

1.36 The role of the torts law in deterring socially unacceptable behaviour and promoting individual responsibility for wrongdoing is reflected, for example, in the defence of illegality,7 [page 9] which may provide a complete answer to a plaintiff’s action in tort: see Chapter 13. Another example is provided by the remedies which may be available in a tort action. As Brennan J commented in the High Court decision in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448 at 471: As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff’s rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary

damages are quite different from the considerations that govern the assessment of compensatory damages.

See also Lamb v Cotogno (1987) 164 CLR 1; Gray v Motor Accident Commission (1998) 196 CLR 1; New South Wales v Ibbett (2006) 229 CLR 638. 1.37 Deterrence and concepts of individual responsibility may also have a negative role to play in torts law in terms, for example of whether a cause of action is recognised as existing on the facts of a particular case. In Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52, the High Court refused to find that the club management was liable in negligence to an intoxicated club patron. The patron’s excessive consumption of alcohol resulted in her being injured in a motor vehicle accident outside the club’s premises. In Cole, the majority justices stressed the importance of individuals accepting responsibility for their own actions as being a factor in the role of the law of torts. These comments by Callinan J (at [121]) are typical of the views of the majority: Except for extraordinary cases, the law should not recognise a duty of care to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess. The voluntary act of drinking until intoxicated should be regarded as a deliberate act taken by a person exercising autonomy for which that person should carry personal responsibility in law. The respondent owed the appellant only the ordinary general duty of care owed by an occupier to a lawful entrant. Heydon JA, with Santow JA agreeing held that to extend the duty to the protection of patrons from self-induced harm caused by intoxication would subvert many other principles of law and statute which strike a balance between rights and obligations, and duties and freedoms.

5

The Evolution of Torts Law

1.38 The earliest reliable records of torts actions date from the reigns of the English Kings, John and Henry III, in the early years of the 13th century. These initial tort actions were concerned with property and feudal rights and usually involved a violent interference with those rights.

1.39 By the middle of the 13th century, the trespass actions had become well established, including civil assault, battery, false imprisonment, unlawful entry onto land and the taking away of chattels (moveable possessions). These early tort actions were commenced in court by a type of summons which used the term quare, asking why the wrongdoer had harmed the plaintiff. The common feature of these early torts, apart from the initiating summons, was the direct nature of the interference with the plaintiff’s rights. [page 10] The quare trespass action also came to be used in cases where the plaintiff could not satisfy the requirements of a trespass action, but nevertheless attempted to explain why their case was aligned with, or was an extension of, the trespass action. These actions formed a collection of torts which became known as ‘trespass on the case’. The interferences were not usually as violent, obvious and direct, and the feature of indirectness became associated with the actions on the case. The negligence and nuisance actions are examples of actions on the case. It was the negligence action which was destined to become the dominant tort of the 20th and, at least the first decades of, the 21st centuries. 1.40 The ascendancy of the tort of negligence was hindered, however, by the failure of the common law to develop a general principle for the basis of liability in a negligence action. Instead, the courts continued to use the precedents governing the forms of action to define (and limit) the specific situations giving rise to legal responsibility for injury to persons and property. Often the precedents used were based on a pre-existing or implied contractual relationship, for example the relationship between passengers and the carriers who undertook to convey them for reward: White v Boulton (1791) Peake 113. However, the courts had also commenced to find duties in road and sea accident situations which were not dependent upon some pre-

existing contractual relationship and which created a broader form of liability for injury consequent upon negligence: see, for example, Mitchil (or Michael) v Alestree (1676) 1 Vent 295; 3 Keb 650; 2 Lev 172. 1.41 Nevertheless, until the decision in Donoghue v Stevenson [1932] AC 562, judges continued to restrict the general application of the negligence action by requiring cautious analogy with already established causes of action. For example, reliance on notions of privity of contract as the basis of liability of manufacturers in an era of expanding commerce was used to severely curtail the liability of manufacturers, distributors and vendors in negligence for harm caused by faulty products: Winterbottom v Wright (1842) 10 M &W 109. 1.42 In Donoghue v Stevenson [1932] AC 562, Lord Atkin attempted to bring all negligence cases within a single principle, what has subsequently been called the ‘neighbour’ principle. The essence of the neighbour principle, as formulated by Lord Atkin (at 580), is that: 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.

This deceptively simple ‘neighbour’ principle was soon extended to cover all physical damage cases and not just those concerned with the negligent manufacture of goods: see Chapter 8. 1.43 During the second half of the 20th century, the negligence action was extended, for example to cover all aspects of the employment relationship (Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18), as well as non-physical damage such as pure economic loss (Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; Mutual Life & Citizens Assurance Co

[page 11] Ltd v Evatt (1968) 122 CLR 556) and pure psychiatric injury: Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; Jaensch v Coffey (1984) 155 CLR 549. The result was that the tort of negligence became ‘an all-conquering generalised action … infinitely adaptable and capable of applying to all forms of social and economic activities’.8 The increasingly widespread availability of insurance also had a positive influence on the development of the tort of negligence. As Spigelman commented: There seems little doubt that the attitude of judges has been determined to a very substantial extent by the assumption, almost always correct, that the defendant is insured … Judges may have proven more reluctant to make findings of negligence, if they knew that the consequence was likely to bankrupt the defendant and deprive him or her of the family home.9

The Impact of Statute 1.44 While the common law courts were the primary creators of the early law of torts, during the 19th century it became increasingly clear to many people that the traditionally conservative nature of judicial law-making meant that timely changes were more likely to come from parliament-made statute law, rather than from the precedent-bound common law. It was primarily parliaments, then, that enacted the legislation which changed or modified the common law to take into account the political, economic and social changes brought about by the Agricultural and Industrial Revolutions in both England and Australia.

No-fault compensation 1.45 No-fault compensation schemes have replaced the fault-based torts law systems in some areas of personal injury in response to political, economic and social changes. 1.46

Injuries arising from the workplace It was the increasing

recognition that it was employers, rather than injured employees, who should bear the financial responsibility for the cost of workplace accidents (and their prevention) which resulted in the English Parliament enacting the 1897 English Workmen’s Compensation Act. The distinguishing feature of workers’ compensation legislation is that workers who are injured, or their health impaired, are compensated without the need to prove that their employer was at fault. All that is generally required is that there is a causal or temporal link between their injury and employment. The legislation, therefore, shifts the cost of workplace accidents from employees to employers: McGuire v Union Steamship Co of New Zealand Ltd (1920) 27 CLR 570 at 578–83. Similar legislation was subsequently enacted in each of the Australian states during the early years of the 20th century: see 9.53. A person injured at work is entitled to bring a common law action, with limitations, in all jurisdictions, except in the Northern Territory: Return to Work Act (NT) s 52(1). 1.47 Injuries arising from transport accidents All jurisdictions provide no-fault schemes for personal injury arising from motor vehicle accidents. The right to take a [page 12] common law action varies. For example, in the Northern Territory a person injured in a motor vehicle accident has no common law action: Motor Accidents (Compensation) Act 1979 (NT). In Tasmania, the compensation available is limited but an injured person may have a common law action (Motor Accidents (Liabilities and Compensation) Act 1973 (Tas)), and in Victoria an injured person is entitled to no-fault benefits and may only take a common law action if their injuries are serious: Transport Accident Act 1986

(Vic). In the other jurisdictions a common law action is available; however, legislation places limits on the damages recoverable. 1.48 Victims of crime Criminal injury compensation schemes exist in all jurisdictions, allowing a victim of a crime to receive limited compensation from government funds: see Victims of Crime (Financial Assistance) Act 1983 (ACT); Victims Support and Rehabilitation Act 1996 (NSW); Victims of Crime Assistance Act 2006 (NT); Victims of Crime Assistance Act 2009 (Qld); Victims of Crime Act 2001 (SA); Victims of Crime Assistance Act 1976 (Tas); Victims of Crime Assistance Act 1996 (Vic); Criminal Injuries Compensation Act 2003 (WA).

Apportionment of liability 1.49 The defence of contributory negligence, which was a complete defence at common law, provides another example of the limitations of the common law and the need for legislative intervention. At common law, where the plaintiff contributed, even in a small way, to the accident in which the plaintiff was injured, no remedy would be available in tort. While the courts did attempt to soften the harshness of the defence by the creation of, for example, the ‘last opportunity’ rule, the defence continued to operate unjustly until its statutory modification in the mid-20th century in all Australian jurisdictions. The effect of the statutory modification has been to allow an apportioning of liability between the defendant and the plaintiff depending upon their respective fault: see Chapter 13.

Consumer protection 1.50 Parliaments have in the past enacted a wide range of legislation in the area of consumer protection and fair trading. In 2010, a single, national law, the Australian Consumer Law, encompassing consumer protection and fair trading, was adopted by every state and territory: Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)). The Australian

Consumer Law replaces the various national, state and territory consumer laws to provide consistency. Section 18 of the Australian Consumer Law (formerly s 52 of the Trade Practices Act 1974 (Cth)), which prohibits a person, in trade or commerce, from engaging in misleading or deceptive conduct, has had a significant impact on torts law, especially the tort of negligence as it relates to negligent misrepresentations, and the torts of deceit and passing off. For example, the considerable difficulties in proving that a defendant who made misrepresentations owed the plaintiff a duty of care in negligence, or it was done with the intention to cause loss in respect of an action in deceit, do not arise if the plaintiff takes an action under s 18 of the Australian Consumer Law: see Chapter 19. [page 13]

Civil liability legislation 1.51 It is the civil liability legislation enacted in response to the Review of the Law of Negligence — Final Report10 (the Ipp Report) by all Australian jurisdictions, however, which is likely to have the most significant and longlasting impact on the Australian law of torts. The terrorist attacks in America on 11 September 2001, the collapse of major Australian insurance providers, such as HIH Insurance and United Medical Protection, and the consequent dramatic increase in insurance premiums, forced Australian governments to rethink the operation of the tort of negligence as it interacts with other areas of the law. Consequently, in May 2002, the Commonwealth, state and territory governments jointly agreed to appoint a panel of eminent persons to examine and review Australian law as it relates to actions for personal injury and death resulting from negligence, regardless of whether the action is brought in tort, contract, under a statute, or under any other cause of action: see the Ipp Report at [7.1]. On 2 October

2002, the panel delivered the Ipp Report, named after the chairperson of the panel, Justice Ipp. Many hoped that the Ipp Report would lead to a greater consistency between the various Australian jurisdictions in regard to the law of torts. Unfortunately, this has not been the case and, while all state jurisdictions have enacted legislation in response to the Ipp Report, there remain significant jurisdictional differences. Moreover, the state and territory parliaments in some situations (for example, the liability of public authorities and proportionate liability for property and pure economic loss claims) enacted legislation which went beyond the reforms suggested in the Report, leading to further divergences between various Australian jurisdictions: see Civil Law (Wrongs) Act 2002 (ACT); Civil Liability Act 2002 (NSW); Personal Injuries (Liabilities and Damages) Act 2003 (NT); Civil Liability Act 2003 (Qld); Civil Liability Act 1936 (SA); Civil Liability Act 2002 (Tas); Wrongs Act 1958 (Vic); Civil Liability Act 2002 (WA).11

The Impact of Insurance 1.52 The role of insurance has been critical to the exponential growth of the law of torts. This is especially the case in regard to third party insurance and, to a lesser extent, in regard to indemnity (or first party) insurance. So pervasive has been the influence of the availability of insurance, that Ipp wrote: The insurance industry wields a powerful influence in the politics of negligence. The 2002 insurance crisis demonstrated that insurance is the lifeblood, not only of commerce and industry, but of medical and other professional services and many aspects of everyday life. The events of 2002 showed that, without the availability of reasonably priced indemnity insurance, the fabric of society is at risk.12

[page 14]

See also Kirby J’s comments in Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457 at [45]. 1.53 Under indemnity insurance (for example, a household insurance policy), the insured is reimbursed for any loss regardless of whether or not the loss was caused by a third party’s tortious conduct. It is only in circumstances where the loss was tortiously caused that the insurance company has the choice, under the equitable doctrine of subrogation, of whether or not to recoup that loss through the tort system. 1.54 The operation of third party insurance, on the other hand, is only relevant when the insured is found legally liable to compensate a third party harmed by the insured’s tortious conduct. In these circumstances, third party insurance may provide a defendant with critical protection against a ruinous award of damages which may, because of the compensatory function of torts law, be out of proportion to the defendant’s fault. For the injured plaintiff there is the advantage that the tortfeasor’s insurer will have sufficient funds from which to satisfy the award of damages. 1.55

As Cane has commented:

… the law of torts has come in practice to operate in a way which is very different from the way a simple statement of the relevant legal rules, would suggest. The development of liability insurance has altered the administration and financing of the tort system out of all recognition. The vast majority of tort claims are settled out of court by the defendant’s insurance company, so the behaviour of insurance companies is at least as important to an understanding of the way the tort system is administered in practice as is the behaviour of lawyers and courts. In practice most tort compensation is paid by insurers and not by the people who commit torts. When individual tortfeasors did pay damages, lawyers were very concerned to justify this result. But now that they do not generally do so, many lawyers have little interest in the question of how the tort system should be financed.13

1.56 Despite the significant role that insurance has played in the development of the law of torts, the common law courts have not adopted a consistent approach as to whether or not it should be acknowledged as being relevant in individual cases. In England, for example, in Davie v New Merton

Board Mills Ltd [1959] AC 604 at 627, Viscount Simonds expressed the general position that: … [it] is not the function of a court of law to fasten upon the fortuitous circumstances of insurance to impose a greater burden on the employer than would otherwise lie upon him.

Yet in 1990, Lord Griffiths, in the same court, commented in Smith v Eric S Bush (a firm) [1990] 1 AC 831 at 838 that: … [e]veryone knows that all prudent, professional men carry insurance and the availability and cost of insurance must be a relevant factor when considering which of two parties should be required to bear the risk of loss.

1.57 A similar ambivalence towards acknowledging the role of insurance is evident in Australian courts, although increasingly its existence has been acknowledged in cases [page 15] involving personal injury and compulsory third party insurance: Kars v Kars (1996) 187 CLR 354; Lynch v Lynch (1991) 25 NSWLR 411; Bowditch v McEwan (2002) 36 MVR 235. In Imbree v McNeilly (2008) 236 CLR 510; (2008) 248 ALR 647, the court overruled the principle from Cook v Cook (1986) 162 CLR 376, that a learner driver owed a lower standard of care to a passenger who was aware of their inexperience: see 11.23. Kirby J referred specifically to the effect of compulsory third party motor vehicle insurance, stating (at [108]): Giving weight to the consideration of compulsory insurance accords with a growing preparedness of the courts to acknowledge the influence of insurance, at least where it is compulsory and provided by statute, in defining the content of legal liability. I would not therefore ignore this consideration.

His Honour held that it was the existence of compulsory third party insurance that obliged the court to overrule Cook v Cook and that the ‘fiction of individual personal liability’ (at [112]) needed to be acknowledged:

If such compulsory insurance were not part of the legal background to the expression of the applicable common law, and if it were the case, or even possible, that someone in the position of the driver (or the owner) of the vehicle would, or might, be personally liable for the consequences of that person’s driving affecting a passenger (such as the appellant) or other third party it is extremely unlikely, in my view, that the courts would impose on them liability, as in the case of the appellant’s claim, sounding in millions of dollars. Such a course would be unrealistic and futile, characteristics the courts usually endeavour to avoid: at [111]. [emphasis in original]

In regard to other forms of damage, and especially pure economic loss, the cost and availability of insurance as a factor in determining liability is less clear: Esanda Finance Corporation v Peat Marwick Hungerfords (1997) 188 CLR 241 at 282 per McHugh J; L Shaddock & Associates Pty Ltd v Parramatta City Council (No 1) (1981) 150 CLR 225; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports ¶81-692.

The High Court 1.58 Until the early 1980s, the accepted approach to the law of torts in Australia, and the common law world generally, was based upon the doctrine of strict legalism — also referred to as legal formalism or the declaratory theory of law. This approach regards the law as being a logical, self-contained set of clear principles and rules which have a determinate meaning and which, by a logical process of induction and deduction from case law and legislation, are capable of supplying one right answer to every legal problem. This approach to the law is reflected in Blackstone’s comment, in 1776, that judges: … are the depositories of the law; the living oracles who must decide in all cases of doubt and who are bound by an oath to decide according to the law of the land.14

[page 16] Even then, however, there was disquiet expressed by some judges as to the

infallibility of the current system. As Jessel MR stated in London Corporation v Riggs (1880) 13 Ch D 798 at 805: I am afraid that, whatever I may call my decision, it will, in effect, be making law, which I have never had any desire to do; but I cannot find that the point is covered by any decided case, or even appears to have been discussed in any decided case. The only satisfaction I have in deciding the point is this, that it will in all probability be carried to a higher Court, it will be for that Court to make the law, or as we say declare the law, and not for me.15

1.59 Since the 1980s, there has been considerable debate about the extent to which judges should continue to conform (or at least claim to conform) to strict legalism with its perceived limits on judicial reference to ‘policy’ considerations, community values and other non-rule-based considerations. For example, Sir Anthony Mason has commented: In recent years the High Court has been less inclined to pursue formal legal reasoning so far … it is not surprising that the current legal reasoning extends beyond the narrow confines of legal formalism. It is now accepted that, at the appellate level at least, judges do make law when they extend, qualify or reshape a principle of law. Equally we accept that courts have a responsibility to develop the law in a way that will lead to decisions which are “humane, practical and just” to repeat the words of Sir Harry Gibbs. Judges do not carry out this responsibility in a vacuum, by shutting their eyes to contemporary conditions. They must have an eye to the justice of the rule, to the fairness and the practical efficacy of its operation in the circumstances of contemporary society. A rule that is anchored in conditions which have changed radically with the passage of time may have no place in the law of today.16

1.60 This approach to the law, termed ‘judicial activism’ by its opponents,17 has been criticised as representing a challenge to both judicial probity and the ability of judges to maintain ‘a sound grip on the applicable law in particular cases’.18 Clearly, there is a tension between the claim to the stability of objective principles and of the need for the law to be responsive to various historical, social, economic and political factors.19 1.61 More recently, there has been a return to a more restrained approach to the type of policy considerations that should be taken into account in deciding novel questions of law. The emphasis is now on legal policy rather than broader public policy informed by community values and other nonrule-based considerations: see, for example, Cattanach v Melchior (2003) 215

CLR 1; 199 ALR 131; Travel Compensation Fund v Tambree (t/as R Tambree & Associates) (2005) 224 CLR 627; 222 ALR 263 at [29] per Gleeson CJ. This change in approach is apparent, for example, in the High Court decision in the negligence case of Roads and Traffic Authority v Royal (2008) 245 ALR 653; 82 ALJR 870. Kirby J, one of the most ‘activist’ justices, and the sole dissenting voice in the 4:1 decision, [page 17] considered that not to hold the defendant road authority partially responsible for the motor vehicle accident in which the plaintiff was injured, would be inconsistent with the function of the law of torts in terms of encouraging road safety. His Honour said (at [117]): To hold that the defendant motorist was the only tortfeasor liable for negligence … and to exculpate the RTA [Roads and Traffic Authority] entirely for the dangers it caused at the intersection, is to do nothing at all to address the “material contribution” involved in the RTA’s conduct and omissions. Until such contributions are brought home to an authority such as the RTA, no stimulus is provided by the law of negligence for risk assessment, measures of accident prevention and safer highway design, construction and maintenance.

The majority of the High Court, however, was able to avoid consideration of policy issues relating to accident prevention and the like, by finding that the RTA’s negligence had ‘nothing to do with the collision in question’ and should, therefore, not be regarded as causally significant in terms of the accident which had actually occurred. Gummow, Hayne and Heydon JJ, for example, said (at [25]): In short, even if it could be said that the appellant’s breach of duty “did materially contribute” to the occurrence of an accident, “by creating a heightened risk of such an accident” due to the obscuring effect of one vehicle on another in an adjoining lane, it made no contribution to the occurrence of this accident. [emphasis in original]

1.62 This approach can be compared with the more expansive approach to policy considerations favoured by Santow and Tobias JJA of the New South

Wales Court of Appeal in Royal v Smurthwaite (2007) 47 MVR 401 and Toll Pty Ltd v Dakic [2006] NSWCA 58. Nevertheless, and regardless of the merits of the ongoing struggle between ‘the philosopher kings of policy and the black-letter lawyers who claim to propound principle alone’,20 as Kirby J commented in Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457 at [45]: All decisions that recognise a cause of action in new circumstances or which alter the course of the common law will have unforeseen consequences. Decisions which result in a change in legal principle in, for instance, the law of torts, will inevitably have economic consequences and ramifications for the insurance industry and the premium-paying population which cannot be fully anticipated. Yet before and since Donoghue v Stevenson [[1932] AC 562] to the present day, this has not been accepted as a reason why judges should refuse to express the common law applicable to new circumstances and, where necessary, to develop and elaborate the common law to meet changed social and technological circumstances.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 1. D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Aust Bar Rev 1. [page 18] D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609. —, ‘The Politics, Purpose and Reform of the Law of Negligence’ (2007) 81 ALJ 456. M Kirby, ‘Judicial Activism? A Riposte to the Counter-Revolution’ (2004) 24 Aust Bar Rev 219. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 1.

B McDonald, ‘The Impact of the Civil Liability Legislation on the Fundamental Policies and Principles of the Common Law of Negligence’ (2006) 14 TLJ 268. A Mason, ‘Future Directions in Australian Law’ (1987) 13 Mon LR 149. J J Spigelman, ‘Negligence and Insurance Premiums: Recent Changes in Australian Law’ (2003) 11 TLJ 291. J Stapleton, ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820. P Stewart and A Stuhmcke, ‘The Rise of the Common Law in Statutory Interpretation of Tort Law Reform Legislation: Oil and Water or a Milky Pond?’ (2013) 21 TLJ 126.

1.

See, for example, P Higgins, Elements of Torts in Australia, Butterworths, Sydney, 1970, pp 35–6.

2.

See, for example, J Stapleton, ‘The Golden Thread at the Heart of Tort Law: The Protection of the Vulnerable’ (2003) 24 Aust Bar Rev 135.

3.

See also Australian Law Reform Commission (ALRC), For Your Information: Australian Privacy Law and Practice, Report No. 108, 2008.

4.

D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 615.

5.

See R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 29.

6.

See also J Swanton, ‘Concurrent Liability in Tort and Contract: The Problem of Defining the Limits’ (1996) 10 JCL 21.

7.

See, for example, J Goudkamp, ‘Can Tort Law be Used to Deflect the Impact of Criminal Sanctions? The Role of the Illegality Defence’ (2006) 14 TLJ 20.

8.

D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 609.

9.

J J Spigelman, ‘Negligence, the Last Outpost of the Welfare State’ (2002) 76 ALJ 432 at 433.

10.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

11.

See P Stewart and A Stuhmcke, ‘The Rise of the Common Law in Statutory Interpretation of Tort Law Reform Legislation: Oil and Water or a Milky Pond?’ (2013) 21 TLJ 126.

12.

D Ipp, ‘The Politics, Purpose and Reform of the Law of Negligence’ (2007) 81 ALJ 456 at 456.

13.

P Cane, Atiyah’s Accidents, Compensation and the Law, 5th ed, Butterworths, London, 1993, p 5.

14.

Blackstone’s Commentaries on the Laws of England, 2nd ed, Clarendon Press, Oxford, 1776, Vol 1,

p 69. 15.

As Young J notes, ‘In the event, there was no appeal, and his Lordship’s judgment is still being cited’: see ‘Current Issues’ (2008) 82 ALJ 71 at 73.

16.

A Mason, ‘Future Directions in Australian Law’ (1987) 13 Mon LR 149 at 158.

17.

See, for example, D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Aust Bar Rev 1 at 4.

18.

D Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Aust Bar Rev 1 at 9.

19.

See also M Kirby, ‘Judicial Activism? A Riposte to the Counter-Revolution’ (2004) 24 Aust Bar Rev 219.

20.

D Ipp, ‘Themes in the Law of Torts’ (2007) 81 ALJ 609 at 614.

[page 19]

Chapter 2 The Distinction Between Trespass and Case 1

Introduction

2.1 The law of torts covers a wide variety of actions, but the actions may be classified into two main groups — trespass actions and actions on the case. The early common law was procedurally very formal and unless plaintiffs could bring themselves within the terms of one of the recognised writs they had no remedy. The first writ in tort emerged in the 13th century in respect of forcible interferences with a person or their property in circumstances where the King’s peace was threatened. It became necessary to allege that the defendant had acted vi et armis contra pacem regis (by force and arms against the King’s peace) even if that was a fiction. A breach of the peace was more likely to arise where some direct invasion of person or property had taken place, as it was likely to result in resistance and the resulting fracas would necessitate the presence of the King’s forces to put a stop to the breach of the peace. From this the action of trespass developed as the remedy against all forcible, direct and immediate injuries, whether against the person, goods or land of the plaintiff. The trespass actions developed to maintain the King’s peace and to support the deterrence function of the tort, the defendant had to prove that they were not at fault in order to avoid liability. Further, the plaintiff did not have to

prove that they suffered loss as a result of the direct interference, just that there had been an interference with their rights. The action on the case, originally referred to as ‘trespass on the case’, was developed to complement trespass. It provided a means of redress where the injury was only consequential, that is, it was not a direct and immediate result of the defendant’s act. In contrast to trespass, the plaintiff had to prove all the elements of the action on the case, including that they had suffered damage as a result of the interference. 2.2 The primary distinction between trespass and case was whether there was a direct causal connection between a defendant’s conduct and the interference with the plaintiff’s rights. If it was direct then there was an action in trespass and if it was indirect then it was an action on the case: Scott v Shepherd (1773) 2 Wm B1 892; 96 ER 525; Hutchins v Maughan [1947] VLR 131; Esso Petroleum Co Ltd v Southport Corporation [1954] 2 QB 182. [page 20] 2.3 In England, there have been significant developments that have changed the basis for the distinction between trespass and case from directness to intention. With industrialisation in England in the 19th century, there was an increase in the use of highways. Case law developed establishing that trespasses on or to land adjoining a highway were not actionable, even if direct, unless the plaintiff also established that the interference was intentional or negligent: Holmes v Mather (1875) LR 10 Ex 261. 2.4 Through this distinction between highway trespass and non-highway trespass, the element of fault crept into highway trespasses as a necessary part of the plaintiff’s case and, in England, it started to encroach into other forms of trespass in the form of a defence. Consent and inevitable accident had long been recognised as defences to actions in trespass and the defence of

inevitable accident was extended in England to cases in which the interference could not have been avoided even with the exercise of a degree of skill and care: Stanley v Powell [1891] 1 QB 86; National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861. Stanley v Powell involved the defendant member of a shooting party firing at a pheasant. One of the pellets from his gun deflected off the bough of a tree and accidentally wounded the plaintiff, who was carrying cartridges and game for the shooting party. The jury held that the defendant had not been negligent in discharging the gun. In the light of that finding, Denman J held that the defendant could not be liable in trespass. His Honour said (at 88): [N]o decision was quoted, nor do I think that any can be found which goes so far as to hold, that if A is injured by a shot from a gun fired at a bird by B, an action of trespass will necessarily lie, even though B is proved to have fired the gun without negligence and without intending to injure the plaintiff or to shoot in his direction.

2.5 Because trespasses, although originally based on directness, were becoming associated with intention, and actions on the case, although originally based on indirectness, were more associated with unintentional interferences, a peculiar halfway house emerged. Where the interference was both direct and unintentional, the plaintiff had the option to sue in either or both trespass and case. 2.6 In 1959 in England, a further modification occurred when Diplock J held that even in a non-highway trespass, the onus was upon the plaintiff to show that the injury was not only the direct consequence of the defendant’s act, but also that it was caused either intentionally or through negligence, that is, through the defendant’s fault: Fowler v Lanning [1959] 1 QB 426. After 1959, trespass to the person on the highway in England no longer differed from trespass committed in any other place and the onus of proving some form of negligence, where the trespass was not intentional, was upon the plaintiff, whether the action was framed in trespass or as an independent action on the case for negligence.

Finally, in 1964, the English Court of Appeal held that where an injury is inflicted unintentionally, whether it be directly inflicted or not, the only cause of action is an action on the case for negligence: Letang v Cooper [1965] 1 QB 232, a case in which the defendant negligently drove over the legs of the female plaintiff as she sunbathed in a hotel car park. This remains the present position in England. Unintentional injuries can no longer give rise to a cause of action in trespass — they must be brought in an action on the case in negligence. Intentional injuries may only be brought in trespass. [page 21] 2.7 The position is not the same in Australia as in England, as the Australian courts have only kept pace with some of the developments in England. In Australia, it is the question of whether the interference was direct that determines whether there is a trespass, not intention: Williams v Milotin (1957) 97 CLR 465 (defendant’s truck striking the plaintiff cyclist); Blacker v Waters (1928) 28 SR (NSW) 406; Exchange Hotel v Murphy [1947] SASR 112. Further, although the distinction between non-highway trespass and highway trespass in respect of trespass to person became part of Australian law, there has been no abandonment of the differences in the onus of proof. 2.8 In McHale v Watson (1964) 111 CLR 384, Windeyer J considered the English authorities but reaffirmed the Australian position that an action for trespass in non-highway cases will lie for a direct voluntary contact; however, the defendant can raise as a defence the absence of intention or that all reasonable care was taken, that is, accepting the English developments up to Stanley v Powell in 1891 but going no further. McHale v Watson involved a child being struck in the eye by a metal dart thrown by the defendant child. Because it was direct and unintentional, the plaintiff took the option of suing in both trespass and case. The plaintiff failed in trespass because the defendant in this non-highway case discharged the onus of proof in proving

absence of fault. The plaintiff also failed in negligence, failing to prove the defendant was at fault. Windeyer J said (at 388): But the question remains: Is it for the plaintiff to establish that the missile with which she was hit was thrown with intent to hit her or so negligently that it did so or is it for the defendant who threw it to prove an absence of intent and negligence on his part? I think the latter view is correct.

2.9 In Australia, trespass lies for direct voluntary contacts without the need of proof of actual damage, but in cases of direct unintentional interference causing actual damage the plaintiff may sue either in trespass or negligence: Hackshaw v Shaw (1984) 155 CLR 614; Venning v Chin (1974) 10 SASR 299; West v Peters (1976) 18 SASR 338. The conferring of such a choice means that Australia has accepted the original distinction based on directness for trespass, but has moved to accepting lack of intention as the criterion for case. Where there is a choice, in a highway case there may be no advantage to a plaintiff suing in trespass because proof of fault (intention or absence of due care) still lies with the plaintiff. In a non-highway case, if the plaintiff sues in trespass, fault will not have to be proven by the plaintiff, as the onus will lie on the defendant to disprove fault. 2.10 Further, if there is an intentional infliction of harm, the plaintiff may take action in trespass or case. In Wilson v Horne (1999) 8 Tas LR 363, the Tasmanian Full Court held that the intentional assaults committed on the plaintiff did not mean that only an action in trespass was available and that the plaintiff was entitled to proceed with a claim in negligence. This has also been confirmed by the High Court in New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412. Actions were brought by former pupils against the education authority for assaults committed by a teacher. The plaintiffs also sued the teacher personally in trespass to the person. McHugh J noted that the

plaintiffs could have sued the teacher in negligence, as the fact that the teacher had [page 22] intentionally inflicted the harm did not bar a claim in negligence. His Honour noted (at [162]): Historically, as long as a plaintiff did not make the intention of the defendant part of the cause of action, the plaintiff could sue in trespass to the person or by an action on the case for the direct infliction of force. At all events, that was the position before the enactment of the Common Law Procedure Act 1852 (UK) and its analogues in Australia [Williams v Milotin (1957) 97 CLR 465 at 470–1]. Since the abolition of the forms of action, a plaintiff may, if he or she chooses, sue in negligence for the intentional infliction of harm [Gray v Motor Accident Commission (1998) 196 CLR 1].

2.11

The trespass/case distinction is shown in the following diagram:

[page 23]

2

Trespass

2.12 As the courts recorded facts and decisions of cases, precedents developed and this led to the tort of trespass evolving into distinct nominate torts. The actions of trespass provide protection for a plaintiff’s person (assault, battery and false imprisonment), their land (trespass to land) and their goods and chattels (trespass to chattels, conversion and detinue). However, although the actions protect different interests, as trespass actions they share the same distinguishing characteristics. The characteristics of the trespass actions in Australia can be summarised as:

a direct interference with person or property of the plaintiff; the defendant at fault; actionable per se; and onus of proof differs upon the trespass being classified as highway or non-highway.

Direct Interference 2.13 Direct means that the interference with the plaintiff’s rights followed so closely on the defendant’s act that it could be considered part of that act: Hutchins v Maughan [1947] VLR 131 at 133 per Herring CJ (the defendant by laying baits for dogs, which were subsequently taken by the plaintiff’s dogs, did not commit a trespass to the dogs as it was not direct). See also Rural Export and Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 where the court held that placing matter in the feeding troughs for sheep did not amount to a direct interference with the sheep. Gray ACJ stated (at [72]): There is an obvious distinction between direct interference of the kind required to constitute a trespass and leaving something that sheep might or might not choose to eat in a place where they might or might not choose to go for the purpose of eating.

The commonly used example to demonstrate what is a direct interference comes from Fortescue J in Reynolds v Clarke (1725) 1 Stra 634; 93 ER 747. A person going along a road, who is hit on the head by a log that is thrown, has an action in trespass as the interference is direct. However, if the same person comes upon a log thrown onto the road at an earlier point in time, and receives an injury by falling over it, the injury is not direct, but indirect or consequential, and an action on the case lies: cited in Scott v Shepherd (1773) 2 Wm B1 892; 96 ER 525 at 526 and Hutchins v Maughan at 133. 2.14 Not all decisions appear consistent with this formulation. In Scott v Shepherd, a lighted squib or firework was thrown into a marketplace and was then passed on by several parties before eventually exploding in the plaintiff’s face, putting out one eye. Notwithstanding the chain of parties over a

temporal period, the interference was held to be direct and a trespass as the parties had acted out of necessity for their safety and therefore their actions did not break the chain of directness.

Fault of the Defendant 2.15 In trespass, the act complained of must have been done either intentionally or with a lack of due care, referred to generally as ‘fault’. [page 24]

Intention 2.16 In the trespass actions, the intention of the defendant is judged in relation to the consequences of the act rather than the act itself. The motive of the defendant is irrelevant. It is enough if the defendant must have known that the consequences of the act were certain or substantially certain to happen. Cane has stated: The concept of “intention” is used loosely in tort law. Sometimes it appears as a synonym for “voluntary”; sometimes it is described as a “motive”; and it is often used to embrace recklessness.1

Therefore, to be intentional the act must be done deliberately, voluntarily and with the intention of causing the interference or with knowledge of the consequences that are likely to result. In Carter v Walker (2010) 32 VR 1 at [215] it was stated: … it may be that an act should also be considered intentional if it is substantially certain that the act will result in contact with the plaintiff; and perhaps also if the act is reckless with respect to contact with the plaintiff. [footnotes omitted]

2.17 A distinction can be made between intention and involuntariness. If a defendant can prove that the interference was involuntary, then there can be no trespass as the act could not be intentional: Smith v Stone (1647) Style 65;

82 ER 533 applied in Public Transport Commission (NSW) v Perry (1977) 137 CLR 107; 14 ALR 273. In Morriss v Marsden [1952] 1 All ER 925 at 927, it was stated: An intention — ie, a voluntary act, the mind prompting and directing the act which is relied on, as in this case, as the tortious act — must be averred and proved. For example, I think that, if a person in a condition of complete automatism inflicted grievous injury, that would not be actionable. In the same way, if a sleepwalker inadvertently, without intention or without carelessness, broke a valuable vase, that would not be actionable.

See also Hogan (an infant by his next friend Williams) v Gill (1992) Aust Torts Reports ¶81-182, where a judge of the Supreme Court of Queensland held that although the six-year-old defendant voluntarily pulled the trigger of the gun with the intention of simulating the firing of a gun, he did not intend to actually fire the bullet that was in the chamber of the gun, and which the judge held he was probably unaware of.

Lack of care 2.18 The action of negligence is also associated with an absence of care, often referred to as ‘fault’, on the part of the defendant. The fault required in negligence refers to the defendant breaching the duty of care owed to the plaintiff, that is, the failure of the defendant to achieve the objective standard of care to avoid risk of injury to the plaintiff. The differences were highlighted in the joint judgment in Williams v Milotin (1957) 97 CLR 465 at 474: The two causes of action were not the same now and they never were. When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce. The essential ingredients in an action of negligence for personal injuries include the

[page 25] special or particular damage — it is the gist of the action — and the want of due care. Trespass to the person includes neither. But it does include direct violation of the protection which the law throws round the person.

Therefore, a defendant who acts carelessly in committing a direct

interference may be liable in trespass despite the fact that the act was not done intentionally.

Actionable Per Se 2.19 All trespass actions are actionable per se. This means that the plaintiff does not need to prove that they have suffered any loss or damage due to the interference to succeed in their trespass action. The cause of action arises upon the direct interference with the plaintiff’s rights as the law presumes damage upon the interference with a legal right: Nicholls v Ely Beet Sugar Factory Ltd [1936] 1 Ch 343. However, if the plaintiff has not suffered any loss, this will impact on the assessment of damages: see 15.14.

Onus of Proof 2.20 In trespass actions, the general rule is that the onus of proof rests upon the plaintiff to establish that the interference complained of was direct. The onus then shifts to the defendant to prove that they were not at fault. This shift in onus comes from the deterrence function of the tort; that is, the wrongdoer must establish that they are not liable, rather than the plaintiff proving that they are. As noted at 2.7, the distinction between highway and non-highway trespasses remains part of the Australian law, the High Court confirming that in trespass in non-highway cases, the plaintiff need not prove fault of the defendant: McHale v Watson (1964) 11 CLR 384. In a highway trespass, therefore, a plaintiff has to prove fault on the part of the defendant (Lord v Nominal Defendant (1980) 24 SASR 458), whereas in non-highway trespasses, it is for the defendant to prove an absence of fault as a defence: Blacker v Waters (1928) 28 SR (NSW) 406.

3

Action on the Case

2.21 Just as the trespass actions developed into recognised actions, actions on the case also developed into nominate torts such as negligence and nuisance, associated with indirect injuries. However, not all indirect interferences fall within the nominate actions — some remain innominate actions on the case: see 2.25. The characteristics of actions on the case are: an indirect interference with the person or property of the plaintiff; the interference may be either intentional or unintentional; the plaintiff must have suffered damage as a result of the interference; and the onus of proof lies upon the plaintiff throughout. [page 26]

4

Criticisms of the Australian Position

2.22 The trespass/case distinction is less significant today as some jurisdictions have moved to no-fault accident schemes for road and workplace accidents. However, there were signs that Australia will move towards the English position and identify trespass actions based upon intention rather than the directness of the act. In fact, trespass actions in Australia are often referred to as the ‘intentional torts’. In Hackshaw v Shaw (1984) 155 CLR 614 at 618–19, a non-highway trespass case involving a direct but unintentional interference, Gibbs CJ made the following comment: Although the allegation that the shooting was intentional was not pursued, the plaintiff claimed in trespass as well as in negligence. The learned trial judge charged the jury that the burden lay on the defendant to disprove negligence. In so far as the claim was for damages for trespass, the charge proceeded on the view of the law taken by Windeyer J in McHale v Watson (1964) 111

CLR 384 at 388–9, where it was held that in an action for trespass to the person, based upon battery by a blow or a missile, the defendant must prove that he did not intend to hit the plaintiff and that he was not negligent in delivering the blow or discharging the missile. The decision of Windeyer J in that case was affirmed, but the question where the onus of proof lay was not decided on appeal: see (1966) 115 CLR 199. The conclusion reached by Windeyer J finds support in earlier authority, and his decision on the point has since been followed in South Australia, although not in running down cases: Venning v Chin (1974) 10 SASR 299; (1975) 49 ALJR 378 at 379; West v Peters (1976) 18 SASR 338; Lord v Nominal Defendant (1980) 24 SASR 458. However a different view has been expressed in England: Fowler v Lanning [1959] 1 QB 426; Letang v Cooper [1965] 1 QB 232. This latter view appears to me, as at present advised, to be the preferable one but, perhaps unfortunately, we are not now called upon to resolve this difference of opinion. The inconvenience of the rule to which the learned judge gave effect in his charge is obvious in a case where trespass and negligence are relied on in the alternative, since a jury would almost certainly be confused by a direction that in relation to one cause of action the defendant bears the onus of disproving negligence and in relation to the other the plaintiff bears the onus of proving it. In fact the learned trial judge omitted to tell the jury that in a case based on negligence the onus of proof lies on the plaintiff. That meant that there was a misdirection. However no appeal was taken on that ground to the Full Court of the Supreme Court and counsel for the defendant informed us, as he informed the Full Court, that no retrial is sought on the ground of misdirection unless the court interferes with the finding of contributory negligence.

2.23 In another non-highway case, Platt v Nutt (1988) 12 NSWLR 231, the plaintiff was injured by a door which was slammed shut by the defendant, her son-in-law, during an emotional domestic upheaval, in circumstances where she would not have been injured except that she put her hand out to prevent the door closing. She succeeded before the trial judge on the basis that in such a non-highway trespass, the onus lay on the defendant to prove the absence of negligence and the defendant had failed to discharge such onus. On appeal to the Court of Appeal, the court confirmed that in an action for trespass to the person, the plaintiff must prove, on the balance of probabilities, that the interference was the direct result of the act of force of the defendant. The plaintiff had failed to establish, on the balance of probabilities, that her injuries had been caused by the defendant’s force rather than her own act: at 240, 243, 247. Kirby P, in dissent, held that once it is shown that the injuries were caused by the act of force of the defendant, the onus is on the plaintiff

[page 27] to prove that the conduct causing the interference was either intentional or negligent (at 237–40), that is, giving preference to the English developments over McHale v Watson. Clarke JA (with whom Hope JA agreed) said in relation to this non-highway situation (at 242–3): The conclusion that it is necessary for the [plaintiff] to establish that her injuries were caused by the actions of the [defendant] necessarily means that the onus of showing this lay on her. If she failed to discharge this onus then she failed, in my opinion, to make out the trespass with which the [defendant] was charged … [T]he trial judge was unable to determine on the evidence whether the [plaintiff] in thrusting out her arm did so as a reflex action to a threatening situation or in order to thwart the [defendant]. The consequence is that the [plaintiff] failed to establish that her injury resulted from, or was caused by, the act of the [defendant].

2.24 Considering the comments of members of the High Court in Northern Territory v Mengel (1995) 185 CLR 307 at 341; 129 ALR 1 at 14, where liability in torts was divided between ‘either the intentional or negligent infliction of harm’, it is only a matter of time before the High Court adopts intention or its absence as the sole basis of categorising the trespass actions and actions on the case. Until determination by the High Court on this specific issue, the lower courts continue to apply the requirement that there must be a direct act by the defendant through his or her fault: New South Wales v Knight [2002] NSWCA 392 at [16] per Meagher JA. See also Carter v Walker (2010) Aust Torts Reports ¶82-076, where it was argued by counsel that the decision in Letang v Cooper [1965] 1 QB 232 had ‘effectively declared the requirement of directness dead’: at [220]. The court disagreed, stating (at [220]): If that is what Denning MR declared in Letang, then its death has not become part of Australian law. It is inconsistent with the basis upon which cases such as Horkin [v North Melbourne Football Club Social Club] [1983] 1 VR 153 and Platt v Nutt (1988) 12 NSWLR 231 proceeded.

5

Innominate Actions on the Case

2.25 An action is innominate, that is, nameless, because it never achieved prominence in the development of any of the trespass actions or actions on the case, for example, negligence. Indirect intentional interferences that cause injury are examples as they do not fall into the traditional trespass/nominate action on the case dichotomy: see diagram in 2.11. Nevertheless, as the interference is indirect it is possible to bring an action on the case. However, none of the other nominate actions on the case, particularly negligence, seem compatible with intentional wrongdoing. For example, the setting of a spring gun which intentionally injures an intruder who comes upon it some time later cannot be trespass in Australia, because it is indirect, yet it would seem strange to describe it as negligence, because it is wilful. Hence, it is a special form of action on the case: Bird v Holbrook (1828) 4 Bing 628; 130 ER 911. See also 7.2 for intentional infliction of psychiatric injury. 2.26 In 1966, the High Court ‘created’ an innominate action on the case when it held that a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another, is entitled to recover damages: Beaudesert Shire [page 28] Council v Smith (1966) 120 CLR 145. In the words of the High Court (at 156), creating the short-lived action: … independently of trespass, negligence or nuisance but by an action for damages upon the case, a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another is entitled to recover damages from that other.

This new action was little used after its creation and was the subject of severe criticism. It was never relied upon successfully in later cases: see discussion in Dunlop v Woollahra Municipal Council [1982] AC 158; Copyright Agency Ltd v Haines [1982] 1 NSWLR 182; Munnings v Australian Government Solicitor (1994) 118 ALR 385; 68 ALJR 169.

2.27 The action was abolished by the High Court in Northern Territory v Mengel (1995) 185 CLR 307; 129 ALR 1. In that case, the Mengels owned two cattle stations in the Northern Territory: Neutral Junction, which members of the Mengel family acquired in 1962, and Banka Banka Station, which was purchased in 1987. Banka Banka had a slightly higher rainfall and one of the reasons for its purchase was so that cattle could be moved there from Neutral Junction during drought. Banka Banka had been purchased for approximately $3 million, financed through a bank loan. The Mengels intended to repay $1 million of that loan from the sale of cattle by the end of the 1988 season. However, they were not able to fully realise their selling plans and suffered loss because of action taken by two employees of the Northern Territory Department of Primary Industry and Fisheries, a stock inspector and the Acting Chief Veterinary Officer and Chief Inspector of Stock for the Northern Territory. It was clear that there was no statutory or other authority for the acts of the inspectors, notwithstanding that they were furthering the aims of a governmentsponsored campaign to eradicate bovine brucellosis and tuberculosis. The Mengels sued in the Supreme Court of the Northern Territory, claiming damages against the Northern Territory and also against the inspectors. For the purposes of the appeal, the claim was described as one based on the unauthorised acts of the inspectors. The plaintiffs claimed they suffered pure economic loss because the government inspectors quarantined and forbade the proposed sale of the plaintiffs’ cattle on the basis that the cattle may have been infected with brucellosis. The inspectors, in fact, acted outside their authority but did so neither intentionally nor recklessly indifferent as to whether they had the power so to act. The plaintiffs formulated their claim against the inspectors and the territory in several different ways, including upon the principle in Beaudesert Shire Council v Smith (1966) 120 CLR 145: misfeasance in public office and negligence. They were ultimately unsuccessful in all causes of action. The majority Justices in a joint judgment stated:

The lack of authoritative support for the principle stated in Beaudesert, the difficulties associated with the notions of unlawful act ‘and inevitable consequence’, and the further difficulty of reconciling liability under that principle with the limitations upon liability for negligence and for breach of statutory duty and with the general trend of legal development confining liability to intentional or negligent infliction of harm compel the conclusion that Beaudesert should no longer be followed: at CLR 539; ALR 16 per Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ.

[page 29] 2.28 If the evolution towards distinguishing actions in trespass from actions on the case, based on intention rather than directness, is completed in Australia, then it may open up the categories of trespass to include these aberrant, innominate cases since they are clearly intentional wrongs. Following the introduction of the civil liability legislation in Australian jurisdictions after a national review of the law of negligence, there was renewed interest in the intentional torts as the legislation that imposed restrictions upon the awards of damages for personal injury may not apply to intentional torts.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 2. T Cockburn and B Madden, ‘A Renewed Interest in Intentional Torts Following Legislative Changes to the Law of Negligence?’ (2006) 14 Tort L Rev 161. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 11. S Yeo, ‘Comparing the Fault Elements of Trespass, Action on the Case and Negligence’ (2001) 5 SCULR 142.

1.

P Cane, ‘Mens Rea in Tort Law’ (2000) 20 OJLS 533 at 554.

[page 31]

Chapter 3 Trespass to Person 1

Introduction

3.1 The law has always claimed, through development of its rules, to place the highest value on the personal integrity and the safety of individuals. Conduct which threatened the safety of the person or which affronted personal comfort, dignity or freedom was almost certainly always actionable as a tort from the earliest days. The very first actions in tort involved violent wrongs to the person, that is, trespass to the person. Whether personal safety and integrity were achieved always remains questionable. Accessing the legal system to attract the benefit of the rules required sufficient status and finances to mount an action. Even today, infringement of privacy, domestic violence and child abuse may still largely fall outside the ambit of protection provided by the civil actions of trespass to person. 3.2 In Australia, trespass to person under the common law encompasses three separate nominate torts: battery (actual violence); assault (a threat of violence); and false imprisonment (deprivation of liberty). The three actions are separate and distinct. Therefore, although it may be common for a battery (the application of force) to be preceded by an assault

(a threat of force), they are two separate actions. In Collins v Wilcock [1984] 1 WLR 1172, Robert Goff LJ explained the three torts (at 1177–8): The law draws a distinction, in terms more easily understood by philologists than by ordinary citizens, between an assault and a battery. An assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person; a battery is the actual infliction of unlawful force on another person. Both assault and battery are forms of trespass to the person. Another form of trespass to the person is false imprisonment, which is the unlawful imposition of constraint upon another’s freedom of movement from a particular place.

2

Battery

3.3 The aim of the tort of battery is to protect the plaintiff against unwelcome and unwanted contact with their person. In Carter v Walker (2010) Aust Torts Reports ¶82-076 at [215], the common law tort of battery was described in the following terms: (1) it is a species of trespass to the person;

[page 32] (2) it is a so-called “intentional” tort, but care needs to be taken in considering the intention which is relevant; (3) as a starting point, it involves the defendant doing an act which causes physical contact with the plaintiff; (4) the act must be voluntary, that is, directed by the defendant’s conscious mind [see, for example, Hogan [an infant by his next friend Williams] v Gill (1992) Aust Torts Reports ¶81-182; Morriss v Marsden [1952] 1 All ER 925 at 927; and Weaver v Ward (1617) 80 ER 284]; (5) … the act must have a direct rather than a consequential impact upon the plaintiff …; (6) it does not require that the defendant intend the plaintiff any harm, or that the plaintiff suffer harm in fact. It is actionable per se; (7) if the act is voluntary, and the defendant “meant to do it” [McNamara v Duncan (1971) 26 ALR 584 at 587 (Fox J)] in the sense of meaning to contact the plaintiff, it will be relevantly intentional; (8) it may be that an act should also be considered intentional if it is substantially certain

that the act will result in contact with the plaintiff; [see the discussion in Francis Trindade, Peter Cane and Mark Lunney, The Law of Torts in Australia (4th ed, Oxford University Press, Melbourne, 2007), pp 39–41]; and perhaps also if the act is reckless with respect to contact with the plaintiff [ibid pp 41–3]. …

To establish an action in common law battery, the following elements must be present: a direct application of force to the person of the plaintiff; no consent to the application of force by the plaintiff; and fault of the defendant.

Direct Application of Force 3.4 As a trespass action, battery requires that the interference with the plaintiff’s person is direct. Therefore, the interference complained of must be the immediate result of the defendant’s action: see 2.11. However, in Queensland, due to the courts applying the definition of assault in s 245 of the Criminal Code 1899 (Qld) to civil claims of battery and assault, an indirect application of force may be actionable as a battery: see 3.37 for further discussion. 3.5 The contact required for a battery is bodily contact — that is, the immediate effect of the defendant’s act causes contact with the plaintiff’s person. A defendant punching a person is a direct application of force, but so is the throwing of an object at a person if that object comes into contact with their body: see Duyvelshoff v Dionysuis (1990) 13 Qld Lawyer 10 (defendant threw a stubbie bottle or aluminium can at the plaintiff). In Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890, the appellant was convicted of battery of a child after he punched the woman holding the child in the face. The blow caused the child to fall from the woman’s arms and to hit his head on the floor. The court held that although most batteries are directly inflicted, either by striking or by a thrown missile,

the appellant’s punch was the entire and immediate cause of the woman losing hold of the child. Laws LJ stated (at 896): [page 33] There is no difference in logic or good sense between the facts of this case where the defendant might have used a weapon to fell the child to the floor, save only that it is a case of reckless and not intentional battery.

The following are examples of battery: to cut a person’s hair against their will, or without their consent (Forde v Skinner (1830) 4 C & P 239; 172 ER 687); to strike a horse so it throws its rider (Dodwell v Burford (1669) 1 Mod 24; 86 ER 703); to throw a firework that is passed on by several parties until hitting a person (Scott v Shepherd (1773) 2 Wm B1 892; 96 ER 525); and to pull a chair from a person so that they are thrown to the floor: Hopper v Reeve (1817) 7 Taunt 698; 129 ER 278. See also Garratt v Dailey (1955) 279 P 2d 1091. 3.6 The word ‘application’ connotes some positive action, that is, there must be some act rather than merely passive obstruction. In Innes v Wylie (1844) 1 Car & Kir 257; 174 ER 800, it was alleged that the defendant, a police officer, prevented the plaintiff from entering a room by standing in the doorway. Denman CJ directed the jury that if the defendant had stood ‘entirely passive like a door or a wall put to prevent the plaintiff from entering the room’, this could not amount to a battery: at Car & Kir 263; ER 803.

Offensive Contact 3.7 By the definition of ‘battery’, any bodily contact may constitute battery if done without consent. However, the law has placed limits on the type of

contact that may give rise to a battery as the aim of battery is to protect against unwanted contact. In general terms, to amount to a battery the alleged interference must be offensive contact with the plaintiff’s person. The physical contact required for common law battery was summarised in Slaveski v Victoria [2010] VSC 441 at [241]–[242]: Battery is an act that directly and intentionally (or negligently) causes offensive physical contact with another’s person. Any physical contact, however slight, is capable of constituting a battery, but the contact must be offensive in the sense that it goes beyond that which is part of the “ordinary incidents of social intercourse” or that which is “generally acceptable in the ordinary conduct of daily life.” Consequently, the jostling between persons that is inevitable in public areas, such as supermarkets, train stations, crowded buses or busy streets, is not actionable as a battery; nor is the touching of a person in order to engage his or her attention, provided the physical contact is reasonably necessary for that purpose and does not impose a restraint upon the person. [footnotes omitted]

Anger or hostility 3.8 It has been said that ‘the least touching of another in anger is a battery’: Cole v Turner (1704) 6 Mod Rep 149; 90 ER 958. This could mean that virtually any contact with the plaintiff, no matter how trivial, would amount to a trespass, and the extent of force used would generally be unimportant if it was done in anger. [page 34] 3.9 In England, an action in battery required actual hostility (Wilson v Pringle [1987] QB 237) but since the decision of Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 73, this seems no longer to be the case: In the old days it used to be said that, for a touching of another’s person to amount to a battery, it had to be a touching “in anger” (see Cole v Turner (1794) [sic] 6 Mod 149 per Holt CJ); and it has recently been said that the touching must be ‘hostile’ to have that effect (see Wilson v Pringle [1987] QB 273, 253). I respectfully doubt whether that is correct. A prank that gets out of hand; an over-friendly slap on the back; surgical treatment by a surgeon who mistakenly thinks that

the patient has consented to it — all these things may transcend the bounds of lawfulness, without being characterised as hostile. Indeed, the suggested qualification is difficult to reconcile with the principle that any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass.

See Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 where the plaintiff sued for an employee of the defendant placing a hand on his shoulder to gain his attention. Referring to Cole v Turner and Re F (Mental Patient: Sterilisation), Sheller JA noted (at [51]–[52]) that the physical contact could be a battery and that the lack of anger or hostility was not sufficient to conclude that there was no battery.

Contact as part of everyday life 3.10 The law has long recognised that there are a multitude of daily personal contacts of a trivial or inconsequential nature which must be suffered as part of going about normal business in society: Boughey v R (1986) 161 CLR 10. The normal operation of society would collapse if individuals could complain of trespasses based upon merely being jostled on a bus, pushed and shoved while boarding a crowded train or while shopping or receiving a hearty congratulatory slap on the back. 3.11 These forms of contact were at one time regarded as examples of implied consent of the plaintiff simply by participating in society: see 6.13. Now it is more common for such forms of contact to be treated as falling within a general exception, embracing all physical contact that is generally acceptable in the ordinary conduct of daily life: Collins v Wilcock [1984] 1 WLR 1172 at 1176–8 per Robert Goff LJ; Darby v Director of Public Prosecutions (2004) 61 NSWLR 558 at [80]–[81]. The current law is reflected in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 72–3: Of course, as a general rule, physical interference with another person’s body is lawful if he consents to it; though in certain limited circumstances the public interest may require that his consent is not capable of rendering the act lawful. There are also specific cases where physical interference without consent may not be unlawful — chastisement of children, lawful arrest, self-defence, the prevention of crime, and so on. As I pointed out in Collins v Wilcock [1984] 1

WLR 1172, 1177, a broader exception has been created to allow for the exigencies of everyday life — jostling in a street or some other crowded place, social contact at parties, and such like. This exception has been said to be founded on implied consent to bodily contact of this kind. Today this rationalisation can be regarded as artificial; and in particular, it is difficult to impute consent to those who, by reason of their youth or mental disorder, are unable to give their consent. For this reason, I consider it more appropriate to regard such cases as falling within a

[page 35] general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life.

In McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 at [99], the exception was summarised in the following terms: Mere physical contact is insufficient to establish either of these torts [assault and battery]. Under the common law “commonplace, intentional but non-hostile acts such as patting another on the shoulder to attract attention and pushing between others to alight from a crowded bus” are “if committed inoffensively” not sufficient to constitute battery (see Boughey v R (1986) 161 CLR 10 at 24–26). Any general principle that “any touching of another person, however slight may amount to a battery”, is subject to “a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life” (see Darby v Director of Public Prosecutions (2004) 61 NSWLR 558 at [80]–[81] quoting Collins v Wilcock [1984] 3 All ER 374 at 378).

See Secretary, Department of Health and Community Services v J W B & S M B (Marion’s Case) (1992) 175 CLR 218 at 233 per Mason CJ, Dawson, Toohey and Gaudron JJ. In Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at [55], above, the court held that the conduct of the employee in the circumstances was for the purpose of gaining the plaintiff’s attention and was ‘generally acceptable in the ordinary conduct of daily life’. 3.12 Some would view the exception as an undesirable development as it suggests there is some objective form of behaviour which all members of society must tolerate. However, the exception does raise the question of what is the objective standard? Should people have to suffer unwelcome physical contact simply because this is regarded as generally acceptable behaviour in

ordinary daily life? Should schoolboys have to suffer initiations, victimisation or other horseplay because that is thought to be the sort of thing which adolescents are wont to do? Changing social values also render offensive today conduct which was apparently acceptable in the past, including the many forms of sexual harassment.

Lack of Consent 3.13 The lack of the plaintiff’s consent to the application of force is not clearly expressed to be an element of common law battery: see Christopherson v Bare (1848) 116 ER 554; Carter v Walker (2010) Aust Torts Reports ¶82-076 at [215]; Marion’s Case (1992) 175 CLR 218 at 311. Consent may be raised as a defence against a claim in battery (McNamara v Duncan (1971) 26 ALR 584); however, in Christopherson v Bare and Sibley v Milutinovic (1990) Aust Torts Reports ¶81-013 it was held that the onus of proving the lack of consent to the contact was with the plaintiff. The issue of whether lack of consent was an element of battery was examined in White v Johnston (2015) 87 NSWLR 77 (respondent alleged that dental treatments by appellant dentist amounted to a battery) with Leeming JA concluding, in obiter, that it was the plaintiff to prove the absence of valid consent. However, see Dean v Phung [2012] NSWCA 223 at [48] where the court stated that consent was a defence to trespass to person. In that case, the plaintiff alleged that consent to dental treatment was obtained by fraud (as it was represented that the procedures were reasonably necessary when they were not) and therefore not valid. The court held that ‘where a real issue has been raised as to the existence of a valid consent, the burden of proof will lie on [page 36] the defendant practitioner to establish that the procedure was undertaken

with consent’: at [64]. 3.14 The plaintiff’s consent may be express or implied and whether there was consent is a question of fact: Hunter and New England Area Health Service v A by his Tutor T (2009) 74 NSWLR 88 at [40]. For a detailed examination of consent to trespass to person, see Chapter 6.

Knowledge of the Contact 3.15 Knowledge is not an essential element of battery on the part of either party. A person kissed, touched or otherwise interfered with while asleep, or an unconscious person kicked by an assailant, will be entitled to sue, although each had no knowledge of the interference at the time. A defendant who does not know of the contact with the plaintiff may still be liable, for example, if the defendant in a car ran down the plaintiff believing the object was not a person: Law v Visser [1961] Qd R 46.

Fault 3.16 There is no liability in battery unless the interference was voluntary and the defendant intended the impact or caused it negligently: Cole v Turner (1704) 6 Mod Rep 149; 90 ER 958; Exchange Hotel v Murphy [1947] SASR 112. Therefore, if the defendant intends to strike one person but hits the plaintiff instead, they will be at fault and liable in battery: Livingstone v Ministry of Defence [1984] NILR 356 (CA); Bici v Ministry of Defence [2004] EWHC 786 (QB). The interference must be voluntary in the sense that it must be ‘the mind prompting and directing the act’: Morris v Marsden [1952] 1 All ER 925 at 927. In Duyvelshoff v Dionysuis (1990) 13 Qld Lawyer 10, the defendant argued that he was not at fault as when he threw an object at the plaintiff he was mentally unstable. The court held that although the medical evidence noted that the defendant’s self-control was impaired, it was not

destroyed and as he knew the nature and the quality of his act at the time he committed it, the defendant was liable: see 2.15. 3.17 It is not necessary that the defendant intended to harm the plaintiff: Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714 at 743. Fault is judged in relation to: whether contact with the plaintiff was intended; or the contact was the substantially certain result of the defendant’s act; or the contact was the result of the defendant’s reckless disregard or lack of care. See Carter v Walker (2010) Aust Torts Reports ¶82-076 at [215]. 3.18 Many judges tend to regard battery as an intentional tort only and the more substantive negligent contacts are adequately disposed of in independent negligence actions: Australian National Airways Ltd v Phillips [1953] SASR 278; Hackshaw v Shaw (1984) 155 CLR 614 at 618–19. In practice, plaintiffs tend to sue in trespass for intentional acts and in negligence for acts that are unintentional: see 2.9. [page 37]

3

Assault

3.19 It is common for the term ‘assault’ to be used to describe what is in legal terms a battery: see, for example, Trevitt v NSW TAFE Commission [2001] NSWCA 363 at [42]. See also 3.37, as in Queensland the application of the definition of assault in s 245 of the Criminal Code in civil cases leads to what is in fact a battery under the common law being called an assault. However, at common law, assault occurs when one person creates in another an apprehension of imminent harmful or offensive direct contact and

there is a reasonable belief that they have the ability to carry out that threat. The tort of assault involves: a threat of imminent harmful or offensive contact; a reasonable belief on the part of the plaintiff that the defendant has the ability to carry out the threat; and intention on the part of the defendant.

Threat 3.20 To be an assault there must be a positive act by the defendant. This may be a threatening gesture or act, alone or accompanied by a verbal threat.

Imminent 3.21 As it is a trespass action, the threat must be one of imminent harm. In R v Gabriel [2004] ACTSC 30 at [105], the example was given that ‘a recipient of a threat to punch … delivered by a telephone call could not reasonably believe that a punch was imminent’. Imminent does not necessarily equate with ‘without delay’, but neither does it encompass a future remote time: at [112]. All of the circumstances are taken into account. For example, in Zanker v Vartzokis (1988) 34 A Crim R 11, the plaintiff was in the defendant’s moving car when the defendant stated: ‘I am going to take you to my mate’s house. He will really fix you up’. The trial judge held that there was no assault as there was no fear of immediate violence. On appeal the plaintiff was successful, White J stating (at 14): The threat was, it is true, to be carried out in the future but there was no indication by the defendant whether the “mate’s house” was around the next corner or several or more streets away in the suburban area. A present fear of relatively imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared violence was to occur.

Mere words

3.22 Originally, it was thought that mere words without any threatening gesture could not amount to an assault: Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684. However, this proposition has been questioned1 and now if the words constitute a real threat of imminent harm, it may be an assault. [page 38] In Barton v Armstrong [1969] 2 NSWR 451, the defendant, who was a highprofile politician, threatened the plaintiff with violence to get him to sign a deed giving effect to a number of commercial deals. The plaintiff signed the deed as a result of those threats, some of which were made over the telephone. The plaintiff sued the defendant for threats of violence which were alleged to constitute an assault. The defendant argued that the threats could not constitute an assault, as they were made over the telephone and were merely words. Taylor J (at 455) held that telephone threats could constitute an assault: [I]t is clear from the many authorities cited on this subject that mere words themselves are not sufficient to constitute an assault and that the threatening act must put the victim in immediate fear or apprehension of violence. For these reasons [counsel for the defendant] contended that all threats over the telephone could not in law be capable of constituting an assault. I am not persuaded that threats uttered over the telephone could not in law be capable of constituting an assault. I am not persuaded that threats uttered over the telephone are to be properly categorized as mere words. I think it is a matter of the circumstances. To telephone a person in the early hours of the morning, not once but on many occasions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from mere words.

In Zanker v Vartzokis (1988) 34 A Crim R 11 at 16, White J, referring to Barton v Armstrong, questioned whether mere words could amount to an assault if the plaintiff was at liberty. The decisions of Barton and Zanker were questioned in Knight v R (1988) 35 A Crim R 314 (threats of violence by telephone) and R v Gabriel (2004) 182 FLR 102. From these cases it appears that it may be argued that mere words amount to an assault if the threat is

one of imminent harm, not at some future time. This means that there must be evidence of the imminence of physical harm, it is not sufficient that the plaintiff immediately apprehends harm upon being threatened: Balven v Thurston [2013] NSWSC 210 at [35]. In Slaveski v Victoria [2010] VSC 441 at [240], the judge reviewed the above cases and concluded: … there is no rule preventing a threat of physical harm which is not accompanied by any physical contact — such as a threat made over the telephone or by email or other electronic means — from constituting an assault. Such a threat can constitute an assault provided that all the elements of the tort are established, including that the threat is to inflict immediate physical harm.

See also Balven v Thurston, where threats were made by text messages and on appeal it was held that the threats were ‘expressed in an indeterminate manner’: at [37]. Although the evidence was that there was an apprehension of harm, the threats suggested harm would occur at an indeterminate time in the future and therefore there was no assault. 3.23 In R v Ireland [1998] AC 147, the House of Lords considered the issue of whether repeated telephone calls to three women by the defendant, in which the defendant remained silent, could amount to assault. The decision of Taylor J in Barton v Armstrong was approved, Lord Steyn holding (at 162): The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and wholly indefensible. … That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to me to be “Yes, depending on the facts.” It involves questions

[page 39] of fact within the province of the jury. After all, there is no reason why a telephone caller who says to a woman in a menacing way “I will be at your door in a minute or two” may not be guilty of assault if he causes his victim to apprehend immediate personal violence. Take now the case of the silent caller. He intends his silence to cause fear and he is so understood. The victim is assailed by uncertainty of his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the caller may be guilty of an assault; whether

he is or not will depend on the circumstances and in particular on the impact of the caller’s potentially menacing call or calls on the victim.

Lord Hope of Craighead agreed, stating (at 166): He was using his silence as a means of conveying a message to his victims. This was that he knew who and where they were, and that his purpose in making contact with them was malicious as it was deliberate. In my opinion silent telephone calls of this nature are just as capable as words or gestures, said or made in the presence of the victim, of causing an apprehension of immediate and unlawful violence.

In contrast, the decision of Balven v Thurston [2013] NSWSC 210 held there was no assault despite evidence that the person making the threats had entered the victim’s home, destroyed property and had followed his victim, the court holding that this ‘bore no necessary relationship to the infliction of harm’: at [39].

Ability to Carry Out the Threat Knowledge of threat 3.24 For there to be an assault, the plaintiff must be aware of the threat. As the tort involves a reasonable expectation of infliction of force, some knowledge grounding the expectation is necessary otherwise there can be no apprehension: Police v Greaves [1964] NZLR 295. Therefore, to point a gun at a person from behind without his or her knowledge would not normally be an assault unless some accompanying words were used to generate the apprehension. Similarly, to threaten a sleeping or unconscious person cannot be an assault even if the person later is made aware of the threat. In R v Phillips (1971) 45 ALJR 467, the defendant had pushed a girl to the ground, causing her to strike her head and render her unconscious. He dragged her body to the edge of a river and left her there. When the tide came in, she drowned. The court considered whether there had been assault by moving her to the edge of the river. Barwick CJ stated (at 472): The deceased at all times relevant in this connection was unconscious. There was thus no

question of assault in the common law sense of the word. Such an assault necessarily involves the apprehension of injury or the instillation of fear or fright.

Actual or apparent ability 3.25 For the interference to amount to an assault, the plaintiff must perceive on reasonable grounds that the defendant has the ability to carry the threat into effect: Zanker v Vartzokis (1988) 34 A Crim R 11; R v Gabriel (2004) 182 FLR 102. In Stephens v Myers (1830) 4 Car & P 349; 172 ER 735, the defendant attended a parish meeting which was chaired by the plaintiff. The meeting resolved that the defendant should [page 40] be ejected from the meeting. The defendant said that he would rather pull the plaintiff out of the chair than be ejected from the hall and he began to advance towards the plaintiff with his fists clenched. The church warden stopped the defendant’s advance when he was not yet close enough to hit the plaintiff. In instructing the jury, Tindal CJ said: It is not every threat, when there is no actual personal violence, that constitutes an assault, there must, in all cases, be the means of carrying the threat into effect: at Car & P 349–50; ER 735.

3.26 If the defendant does not have the actual ability to carry out the threat, but the plaintiff has in the circumstances a reasonable belief that they do, this may also be an assault. For example, the pointing of a loaded gun may be an assault as would pointing an unloaded gun if the defendant is acting as if it is loaded and the plaintiff is not aware that it is not loaded. In R v St George (1840) 9 Car & P 483, the opinion was expressed that it was an assault to present any pistol whether loaded or not, if the person pointed at believed the weapon was loaded. A similar view was expressed in R v Hamilton (1891) 12 LR (NSW) 111 at 114. In Brady v Schatzel; Ex parte Brady [1911] St R Qd

206, the defendant pretended to load a shotgun in the presence of the plaintiff and pointed it at them. The court held that this amounted to an assault as the plaintiff believed on reasonable grounds that the defendant could carry out the threat.

Apprehension not fear 3.27 The plaintiff’s apprehension of force is assessed according to the standard of the reasonable person. The term ‘apprehension’ does not refer to the plaintiff being in fear, but having the belief or expectation that force is about to be applied to their person: Brady v Schatzel; Ex parte Brady [1911] St R Qd 206. In ACN 087528774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559 at [16], Hargrave AJA summarised the law as: The threat must in fact create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith (Rixon v Star City Pty Ltd (2001) 53 NSWLR 98). It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent (Brady v Schatzel; Ex parte Brady [1911] St R Qd 206 at 208). The apprehension in the mind of the plaintiff must be objectively reasonable.

3.28 It ought to be sufficient if the threat would have aroused an expectation of physical interference in the mind of a reasonable person not afflicted with exaggerated fear, unless the victim’s peculiar sensitivity was known to the tortfeasor: Bunyan v Jordan (1937) 57 CLR 1; Brady v Schatzel at 207.

Conditional threat 3.29 If the words of the threat make it clear that the plaintiff is in no danger of imminent contact, there can be no assault as there can be no reasonable apprehension of force. For example, in Tuberville v Savage (1669) 1 Mod Rep 3; 86 ER 684, the defendant had his hand on his sword as he told the plaintiff ‘were it not assize time, I would not take such language from you’

(assize time was the circuit of the criminal court). It was held that these words, despite the gesture of the hand on the sword, made it clear that the defendant did [page 41] not intend to use the sword upon the plaintiff. A more modern example would be, ‘if that security guard was not standing right there, I would punch you’. Although there is the threat to punch, the condition makes it clear that it will not be carried out. 3.30 However, a conditional threat of the application of force unless something is done (for example, ‘get off my property or I will shoot you’) may be an assault if the offered alternative is obedience to an unacceptable command. In Police v Greaves [1964] NZLR 295, the defendant, threatening a police constable with a carving knife, informed the constable, ‘You come one step closer and you will get this straight through your guts’. The court held that there was an assault as there was a threat of imminent and direct force unless the constable ceased lawful acts that were within the course of his duties.

Fault 3.31 Although fault in trespass is intention or carelessness, to be an assault there must be: … A subjective intention on the part of the defendant that the threat will create in the mind of the plaintiff an apprehension that the threat will be carried out forthwith [Rosza v Samuels [1969] SASR 205 at 207; Rixon v Star City Pty Ltd (2001) 53 NSWLR 98 at [57]–[58]]. It is not necessary to prove that the defendant in fact intends to carry out the threat [Rixon v Star City]: ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559 at [16].

See also Hall v Foneca [1985] WAR 309.

3.32 Therefore, there will be liability for assault even if the defendant knows that the gun being pointed is unloaded, as it was done with the intention of causing the apprehension: McClelland v Symons [1951] VLR 157; MacPherson v Beath (1975) 12 SASR 174 at 177 per Bray CJ. However, to recklessly cause an apprehension of immediate contact may be sufficient: Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439 at 444; R v Bailiff [2002] ACTSC 79 at [21].

Stalking and Domestic Violence 3.33 Some interferences with the person may fall short of assault or battery and it is necessary to look to criminal law for redress rather than a civil action. For example, stalking a person does not involve the application of force nor a threat of imminent harm. Legislation exists making it a criminal offence to stalk another: see, for example, Crimes Act 1900 (ACT) s 35(1); Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1); Criminal Code (NT) s 189(2); Criminal Code (Qld) s 359E(1); Criminal Law Consolidation Act 1935 (SA) s 19AA(2); Criminal Code (Tas) s 192(1); Crimes Act 1958 (Vic) s 21A(1); Criminal Code (WA) s 338E(1). 3.34 In most jurisdictions it is possible for a victim to be compensated through the compensation to victims of crime legislation: see Crimes (Sentencing) Act 2005 (ACT); Victims Rights and Support Act 2013 (NSW); Sentencing Act 1995 (NT); Victims of Crime Assistance Act 2009 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA). 3.35 Specific legislation or provisions in the criminal legislation also exist in respect of domestic violence, including the threat of domestic violence. The legislation allows protection orders to be made by the Magistrates Courts or the equivalent: see Family

[page 42] Law Act 1975 (Cth); Domestic Violence and Protection Orders Act 2008 (ACT); Crimes (Domestic and Personal Violence) Act 2007 (NSW); Domestic and Family Violence Act 2007 (NT); Domestic and Family Violence Protection Act 2012 (Qld); Intervention Orders (Prevention of Abuse) Act 2009 (SA); Justices Act 1959 (Tas); Crimes (Family Violence) Act 1987 (Vic); Restraining Orders Act 1997 (WA). 3.36 Also related to the protection of bodily integrity is the invasion of a person’s privacy. The tort of privacy is still a developing area of law in many common law countries including Australia. However, the developing tort is not a trespass action as to establish an action in breach of privacy — the plaintiff must have suffered loss: see Chapter 7.

4

Queensland Position on Common Law Assault and Battery

Definition of Assault 3.37 In Queensland, the courts have simply assumed that the Criminal Code definition of ‘assault’ in s 245 applies to civil actions for trespass to person: Origliasso v Vitale [1952] St R Qd 211; Grehan v Kann [1948] QWN 40; King v Crowe [1942] St R Qd 288. Therefore, when a civil action is taken by a plaintiff in Queensland for a battery or an assault, the definition of assault in s 245 of the Criminal Code (Qld) is used rather than the common law definitions of those tortious actions. 3.38 Although the criminal definition of assault is applied to civil cases, the onus of proof remains at the civil standard — on the balance of probabilities:

Grehan v Kann [1948] QWN 40. In many of the earlier civil actions, the criminal standard of proof of beyond reasonable doubt was erroneously required in civil actions: King v Crowe [1942] St R Qd 288; Origliasso v Vitale [1952] St R Qd 211. In 1965, the High Court specifically disapproved the earlier Queensland decisions requiring the criminal standard in civil actions: Rejfek v McElroy (1965) 112 CLR 517. 3.39 In practice, the use of the s 245 definition of assault does not change the law of assault and battery, particularly as in Queensland there are very few civil actions for trespass to person because magistrates in criminal proceedings are empowered, upon conviction, to order payment of compensation to the injured person: see Victims of Crime Assistance Act 2009 (Qld). 3.40 The statutory definition of assault in s 245 of the Criminal Code (Qld) (the Criminal Code) incorporates both assault and battery at common law. Section 245 provides: Definition of assault (1) A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.

[page 43] (2) In this section — applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort …

Differences Between the Common Law and s 245 Direct and indirect application of force 3.41 One distinction between the common law definitions of assault and battery and the definition of ‘assault’ in s 245 is that the Criminal Code definition includes the application of indirect force. Under the common law, an indirect application of force would not amount to a trespass: see 2.13. 3.42 Lack of consent Section 245 clearly includes the lack of consent of the plaintiff to the application of force. Therefore, unlike the common law, there is no debate as to whether the onus is on the plaintiff to prove their lack of consent when proving the action: see 3.13. The issue of consent was considered in the case of Horan v Ferguson [1995] 2 Qd R 490. The court held that consent in s 245 of the Criminal Code included not only express but also implied consent that arises from the circumstances. McPherson JA stated (at 495): It is scarcely possible to restrict the word “consent” in s 245 to a consent that is conveyed in express words. It plainly includes consent that is tacit or implied. Just as the absence of consent may be inferred from circumstances, so too equally its presence may be inferred.

Defences 3.43 The most important difference is the application of the defences contained in the Code to civil actions of battery and assault. The Criminal Code makes certain assaults lawful by providing a defence, and in these cases a civil action will not be available: Criminal Code Act 1899 (Qld) s 6. The defences to assault in the Criminal Code correlate with the defences available under the common law, except in respect of the defence of provocation. 3.44 Section 269 of the Criminal Code provides that ‘[a] person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault’. Provocation is not recognised as a defence at common law to assault or battery, but evidence of provocation may

prevent an award of, or reduce, the amount of exemplary damages: Fontin v Katapodis (1962) 108 CLR 177; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; 236 ALR 209 at [135]; see 6.35. Due to the courts’ use of the statutory definition of assault, the defence of provocation in s 269 may be used as a complete defence in a civil action for assault in Queensland.2 As Macnaughton J expressed it in White v Connolly [1927] St R Qd 75 at 77: I am of the opinion that the defence of provocation as an excuse for assault may be pleaded in a civil action for damages for assault as well as in a criminal proceeding for the offence of assault.

[page 44] The case of Lowry v Barlow [1921] NZLR 316 states the law of New Zealand, which is the same as the English law. In Queensland, however, the Criminal Code has made a change in our law, and I refuse to strike out the two paragraphs [pleading provocation].

3.45 Other statutory Code defences in Queensland that may apply are: self-defence (ss 271 and 272: see 6.32), defence of another (s 273: see 6.33), defence of moveable property (s 275) and defence of possession of land or premises: ss 277, 278.

5

False Imprisonment

3.46 In McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 at [41], the court noted that ‘the essence of the action of false imprisonment is the compelling of a person to stay at a particular place against his or her will’. As personal liberty is considered by the law to be one of the most fundamental common law rights, any restraint placed on personal liberty that is not warranted by law is false imprisonment: Trobridge v Hardy (1955) 94 CLR 147. In Ruddock v Taylor (2003) 58 NSWLR 269 at [3], Spigelman CJ stated: The protection of personal liberty of individuals has been a fundamental purpose of the

common law for centuries. The tort of trespass in the form of false imprisonment, has been one of the ways in which that protection has been provided throughout that period.

3.47 As such, the period of the false imprisonment is not relevant to establishing the action: Watson v Marshall (1971) 124 CLR 621 at 632. In Roddan v Corrections Corporation of Australia Pty Ltd [2001] WASC 196 at [27], it was stated: Although the period of wrongful detention was short [55 minutes], I am not willing to dismiss the plaintiff’s action as trivial. Wrongful imprisonment, even for a short period, is a serious wrong.

3.48 In Herring v Boyle (1834) 1 Cr M & R 377; 149 ER 1126, it was held that absence of knowledge of restraint prevented the plaintiff succeeding; however, in Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, it was held that knowledge of restraint was not necessary, although this factor might diminish the damages awarded. In Murray v Ministry of Defence [1988] 1 WLR 692; 2 All ER 521, the House of Lords confirmed that knowledge of the restraint is not an essential element of false imprisonment. In that case, the plaintiff was requested by soldiers, who arrived at her house at 7.00 am, to get dressed. Other occupants of the house were assembled in a single room pursuant to directions made under statute. After the plaintiff dressed, she went downstairs at 7.30 am and was formally advised, pursuant to the legislation, that she was under arrest. She was later taken to a screening centre for questioning but released an hour later. She sued for false imprisonment between 7.00–7.30 am and Lord Griffiths, delivering the advice of the House of Lords, accepted there could be imprisonment without knowledge. 3.49 In R v Awang [2004] 2 Qd R 672, a criminal case concerning the offence of deprivation of liberty, McMurdo P cited Meering v Grahame-White Aviation Co Ltd and Murray v Ministry of Defence as authorities for the proposition that knowledge was not necessary. His Honour stated (at [2]): The offence of deprivation of liberty under s 355 Criminal Code is based on the common law

crime of false imprisonment. The essence of the offence is the deprivation of liberty of the

[page 45] complainant. The phrase “or otherwise” in s 355 recognises, as the common law recognised, that people may be deprived of their liberty not only against their will but also where the deprivation is achieved by fraud, done without knowledge or the victim lacks capacity. An example would be to lock a sleeping or intoxicated woman in a room to prevent her from leaving should she try. Even if she did not know that the offender had locked her in and did not try to leave, she would have been deprived of her liberty under s 355.

See also Walter v Alltools Ltd (1944) 171 LT 371 (a person’s humiliation is not lessened by only hearing about imprisonment afterwards from others and that false imprisonment impacts not only upon a person’s liberty but also on his or her dignity and reputation). 3.50

To establish the tort of false imprisonment there must be:

a direct interference; restraint of the plaintiff in all directions; and the defendant at fault.

Direct Interference 3.51 As a trespass, the interference with the plaintiff’s liberty must be a direct act of the defendant: Sadler v Madigan [1998] VSCA 53 at [27]–[28]. If a plaintiff is restrained by the defendant upon the information of another, it will depend upon the circumstances as to which party directly interfered with the plaintiff’s liberty. For example, it is sometimes difficult to determine whether the imprisonment was by police or a person providing police with information or requesting an arrest. This issue will be determined upon whether the informant citizen left the police to exercise some independent discretion to arrest (Dickenson v Waters

Ltd (1931) 31 SR (NSW) 593), that is, whether it was the citizen or the police who directly imprisoned the plaintiff. This principle is stated in Cubillo v Commonwealth (2001) 183 ALR 249. The facts were that the appellant was removed from her family in 1947 at the age of nine and detained at Retta Dixon Home, which was run by the Aborigines Island Mission, until 1953. At the time, the Commonwealth had in place a policy that removed part-Aboriginal children from their homes. This policy was administered and implemented by the Director of Native Affairs, the Director having no right to exercise any personal judgment based on the circumstances. The appellant alleged that she had been falsely imprisoned by the Commonwealth of Australia as the Commonwealth had actively promoted or caused her imprisonment. The Federal Court held (at 313): … to be liable for false imprisonment, it must be the act of the defendant (respondent), or his or her agent, that imprisons the plaintiff or “the defendant must be active in promoting and causing the imprisonment”: Myer Stores [Ltd] v Soo [[1991] 2 VR 597] at 629 per McDonald J. A person who is active in promoting and causing the imprisonment is jointly and severally liable with the person who effects the imprisonment, ordinarily because their acts are done in furtherance of a common design: Myer Stores [Ltd] v Soo at 617 per O’Bryan J.

On the evidence available to the court, the appellant failed to establish that the Commonwealth had actively promoted or caused the imprisonment. The person responsible indirectly, that is, the person who actively promotes and causes the false imprisonment, may be liable for malicious prosecution, an action on the case: see 7.8. [page 46]

Restraint in All Directions 3.52 Although the trespass refers to imprisonment, it not necessary that there be an actual imprisonment of the plaintiff. In McFadzean v

Construction, Forestry, Mining and Energy Union [2004] VSC 289 at [88], it was noted that ‘whilst restraint must be total and whilst false imprisonment involves restrain[t] at or in some identifiable place, the concept of incarceration has developed an expanded meaning’. 3.53 What is important is that the deprivation must consist of a comprehensive limitation of freedom in all directions. A mere obstruction of movement in one direction only is not sufficient: Bird v Jones (1845) 7 QB 742; 115 ER 642; Kuchenmeister v Home Office [1958] 1 QB 496. In Bird v Jones, part of a public road was enclosed to permit spectators to pay a fee for seating to view a boat race. The plaintiff, who wished to walk along that portion of the road, was refused access and two police officers prevented him from passing in that one direction. He could stay where he was or go in any other direction, including along the other side of the road. Since escape was open to him in all directions except the particular route blocked off by the seating enclosure, there was no imprisonment. Patterson J stated: [I] cannot bring my mind to the conclusion that, if one man merely obstructs the passage of another in a particular direction … leaving him at liberty to stay where he is or to go in any other direction if he pleases, he can be said thereby to imprison him … [I]mprisonment is, as I apprehend, a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will, whatever inconvenience it may bring on him: at QB 751–2; ER 672.

See also Myer Stores Ltd v Soo [1991] 2 VR 597, where the respondent was escorted through a department store to a security room for questioning. The court held that it was false imprisonment from the time the respondent was approached in the store. It was noted (at 614): ‘The respondent was not invited to proceed at his own pace and by his own route to the security room; it was intended that he should proceed there under escort’.

No reasonable means of escape 3.54 For there to be total restraint in all directions, there must be no reasonable means of escape: R v Macquarie (1875) 13 SCR (NSW) 264;

Burton v Davies [1953] St R Qd 26. R v Macquarie involved the plaintiff being cast adrift in a boat; Burton v Davies involved a car being driven at speed. In each case it was held that there was no reasonable means of escape. In Burton v Davies, Townley J stated (at 30): If I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot be heard to say that he was not imprisoned because he was free to leap from the window.

In McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250, logging contractors blockaded demonstrators camping in the area by setting up an official picket line. It was possible for the demonstrators to get out of their camp by walking through the bush. The respondent also offered to guide the demonstrators from the camp site if they agreed not to engage in further protest against the logging. In determining whether egress through the bush was a reasonable means of escape, the Court of Appeal stated that there were four factors to take into account: ‘threat or danger to the self; threat or danger [page 47] to property (including property of others); distance and time; and legality’: at [55]. The trial judge had considered the physical ability of the appellants, their clothing and footwear and the terrain in terms of condition and distance, and came to the conclusion that egress through the bush was a reasonable means of escape. The Court of Appeal agreed: at [81]. 3.55 If the means of escape is not apparent and is not known to the plaintiff, there is no reasonable means of escape.

Physical restraint not necessary 3.56

The Appeal Court in McFadzean v Construction, Forestry, Mining and

Energy Union (2007) 20 VR 250 at [23] approved the trial judge’s observation that: … restraint must be total, although it need not imply the use of physical force — it is sufficient if there be submission to the control of another after being given to understand that without submission there will be compulsion.

In Ferguson v State of Queensland [2007] QSC 322 at [13], it was explained that ‘it is necessary to show that the plaintiff has submitted to the defendant’s power. It is not necessary however for the defendant to have used force and acts or words are sufficient where a plaintiff believes that force would be used if he does not submit’. Therefore, submission may come from a threat of violence or a belief on the part of the plaintiff that the defendant has the legal authority to restrain their movement. 3.57 Threat Commission of the tort of false imprisonment often, although not necessarily, involves an assault, that is, the submission to the control of the other is procured by threats of force. Therefore, restraint may arise from mere words if those words amount to an assault, that is, a threat of imminent harm. The threat may be against the plaintiff, against a person known to the plaintiff or valuable property: McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 at [23] (approving [2004] VSC 289 at [90]). In R v Garrett (1988) 50 SASR 392, threats were made against the plaintiff and another by holding a knife their throat. The court held (at 402): Restraint of liberty is put upon a person not only by actual physical restraint, but also by threats to that person or threats to another.

3.58 Assertion of authority Restraint may be procured by assertion of legal authority: Symes v Mahon [1922] SASR 447; Watson v Marshall (1971) 124 CLR 621. In Symes v Mahon, the plaintiff was falsely identified as a wanted person and was requested by a uniformed officer to accompany him on public transport to a police station. The circumstances were sufficient to justify false imprisonment simply by assertion of authority even though no

actual restraint was used — the plaintiff believed that he had to comply with the officer’s request. Murray CJ stated (at 453): In a case of this description, where there has been no application of physical force to the person alleging imprisonment, there must be evidence of complete submission by him to the control of the other party … reasonably thinking that he had no way of escape which could reasonably be taken by him.

See also Bulsey v Queensland [2015] QCA 187 (plaintiff was falsely imprisoned as she followed police commands to show them around the house and sit on a couch and not move). [page 48] 3.59 Provided the plaintiff believes, and was induced by the defendant to believe, that an attempt to escape would be restrained, it will amount to imprisonment: Watson v Marshall (1971) 124 CLR 621 at 640. In Myer Stores Ltd v Soo [1991] 2 VR 597, it was held that there was false imprisonment of the plaintiff while held in an interview room even though the door to the room was open and the plaintiff had not been physically restrained. As the plaintiff believed he had no choice but to remain in the room, there was total restraint by the assertion of authority. However, in Whittaker v Child Support Registrar (2010) 264 ALR 473, it was held that there was no false imprisonment when the plaintiff, who was subject to a departure prohibition order of the Family Court, was detained in the departure hall at Sydney’s international airport by customs officers. The Federal Court held that the plaintiff was able to move freely within the departure lounge, but could not pass through passport control. The court held that it was the plaintiff’s desire to pass through passport control to board the plane which prevented him from leaving, not necessarily the belief he could not leave: at [185]. See also Darcy (bht Aldridge) v New South Wales [2011] NSWCA 413, where the court held that the appellant had been detained even though she was able to leave the residential centre which accommodated and treated

persons with intellectual or developmental disabilities. As she could not leave without permission and was obliged to return at the end of her sojourn, Whealy JA stated (at [154]): Although the “total restraint” imposed on Ms Darcy by her continued detention at [the residential centre] bears no similarity to what might conventionally be described as “imprisonment”, it was detention, in my opinion, nevertheless.

Fault 3.60 Due to the nature of the trespass, restraint of the plaintiff, generally the imprisonment must be intentional. However, as in Australia fault in trespass may be intentional or a lack of care (see 2.15) an action may succeed if the imprisonment was due to the defendant’s negligence. There is some disagreement as to whether negligence is sufficient, but to allow negligence as evidence of fault would be in accordance with the function of the tort — protection of a person’s fundamental right to liberty.3

Lawful Justification 3.61 In Darcy (bht Aldridge) v New South Wales [2011] NSWCA 413 at [2], it was stated: The question of lawful justification for the detention of a person is a question of the utmost importance. It involves the recognition of the importance of the liberty of the subject, an aspect of society and human rights recognised, indeed cherished, by the common law.

Upon a plaintiff establishing imprisonment, the defendant then bears the onus of proving lawful justification or excuse to avoid liability. In Ruddock v Taylor (2005) 222 CLR 612; 221 ALR 32 at [140], Kirby J stated: Wrongful imprisonment is a tort of strict liability. Lack of fault, in the sense of absence of bad faith, is irrelevant to the existence of the wrong. This is because the focus of this civil

[page 49]

wrong is on the vindication of liberty and reparation to the victim, rather than upon the presence or absence of moral wrongdoing on the part of the defendant. A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima facie case. At common law it is the defendant who must then show lawful justification for his or her actions. [footnotes omitted].

See also Ferguson v State of Queensland [2007] QSC 322 at [14]. 3.62 The fact that a body has authority to detain persons does not necessarily mean that there can be no claim in false imprisonment. Furthermore, merely because a person enters a place voluntarily does not prevent a claim in false imprisonment if restrained from leaving without lawful excuse or authority: Vignoli v Sydney Harbour Casino (2000) Aust Torts Reports ¶81-541.

Right to release governed by contract 3.63 If one person induces another to put himself or herself in a place which it is impossible to leave without assistance, a refusal to give assistance when expectation has been given that it would be forthcoming, will constitute false imprisonment. However, if the person enters a place voluntarily, but the right to release is governed by some licence or contract, there is consent to the restriction: Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379. A refusal to release at a time or in a manner other than that reasonably agreed to may not be actionable. In Herd v Weardale Steel Coke and Coal Co Ltd [1915] AC 67, an underground miner agreed to spend specified shifts down a mine, and refusal to take him to the surface until the end of the shift did not amount to false imprisonment. Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 concerned a potential traveller on a ferry who agreed to pay a charge to leave a wharf. Having missed his ferry, he attempted to leave without paying the fee and was restrained. On appeal from the High Court, the Privy Council in Robinson v Balmain New Ferry Co Ltd [1910] AC 295 at 299 suggested that the defendant could impose any reasonable condition before allowing exit, whether there

was a contract or not. However, this goes beyond the High Court’s statement of principle in the same case. In the later decision of Herd v Weardale Steel Coke and Coal Co Ltd [1915] AC 67 at 71–2, the Lord Chancellor suggested the High Court and Privy Council views in Balmain were the same.

Power of arrest 3.64 Arbitrary arrest has been described as the ‘hallmark of tyranny’: Donaldson v Broomby (1982) 40 ALR 525 at 525–6 per Deane J. See also Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 235–6 per Deane J; Ruddock v Taylor (2005) 222 CLR 612; 221 ALR 32 at [120] per McHugh J; [138] per Kirby J. Many claims for false imprisonment arise from the allegedly wrongful arrest or detention of the plaintiff. If the arrest is lawful, generally there is no false imprisonment. Private citizens have a power to arrest under the common law for breaches of the peace and police have powers of arrest under the common law and statute. [page 50] 3.65 Police arrest Under the common law, an officer may make an arrest without a warrant if there are reasonable grounds to believe that the plaintiff has committed a felony. The common law powers of arrest without a warrant depend upon the circumstances of each case, including the nature of the crime: John Lewis Co Ltd v Tims [1952] AC 676. However, there may be false imprisonment if the police officer who has made a lawful arrest then delays in charging the plaintiff beyond a reasonable time: Jones v Harvey (1983) 1 MVR 111. In Slaveski v Victoria [2010] VSC 441, the plaintiff sued in respect of numerous alleged interferences, including false imprisonment resulting from the police arresting the plaintiff without a warrant and failing to take him before a bail justice within a reasonable time.

The plaintiff was arrested just before midday and interviewed for less than 90 minutes. The plaintiff then required hospitalisation after taking tablets and was discharged from hospital at 9.05 pm. He was then taken to the police station where he was charged. A bail justice was found and the plaintiff was released on bail at 11.30 pm. The court held that there was no unreasonable delay as although the plaintiff was in custody for just less than 12 hours, a significant period of that time was spent in hospital due to his own actions. 3.66 Many circumstances for arrest without a warrant are governed by statute that vary within each jurisdiction but, usually, there is a requirement of a reasonable belief by the police office that a felony has been committed or about to be committed. If there is no such reasonable belief, there is no lawful arrest and a plaintiff may allege false imprisonment. See Crimes Act 1914 (Cth) s 3W; Crimes Act 1900 (ACT) s 212; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99; Police Administration Act 1978 (NT) s 123; Police Powers and Responsibilities Act 2000 (Qld) s 365; Summary Offences Act 1953 (SA) ss 75, 78; Police Offences Act 1935 (Tas) s 55; Crimes Act 1958 (Vic) s 458; Criminal Investigation Act 2006 (WA) s 128. 3.67 Many sections of the Criminal Codes dealing with particular offences provide that an offender cannot be arrested without a warrant. Where a warrant is necessary, an officer making an arrest must have the warrant in his or her possession and produce it if required: Little v Commonwealth (1947) 75 CLR 94. However, the fact that a warrant exists and is valid does not negate the possibility of false imprisonment: Myer Stores Ltd v Soo [1991] 2 VR 597. Failure to act in conformity with a warrant may render a police officer liable: Symes v Mahon [1922] SASR 447. 3.68 Likewise, an arrest based on a warrant issued without statutory authority may lead to a claim in false imprisonment. For example, in Spautz v

Butterworth (1996) 41 NSWLR 1, the plaintiff was falsely imprisoned for 56 days after the defendant magistrate had issued an arrest warrant for nonpayment of a costs order awarded against the plaintiff in a civil action. There was no statutory authority for the issuing of the warrant. In the circumstances, where the plaintiff had no criminal record and was unceremoniously cast into prison, the court awarded compensatory damages of $75,000. 3.69 Civil arrest It is lawful under the common law for a person to make a civil arrest to prevent breaches of the peace: Coupey v Henley, Whale and Webster (1797) 170 ER 448; 2 Esp 540. Where a person exercises the civil power of arrest, there is a duty to take the arrested person before a justice or to a police station as soon as reasonably possible so the [page 51] person may be charged: R v Brown (1841) C & M 314; 174 ER 522; Gerard v Hope [1965] Tas SR 15; Goss v Nicholas [1960] Tas SR 133. 3.70 The onus is upon the arresting citizen to prove that an offence had been committed or that there was reasonable ground for the apprehension of a crime: Allen v Wright (1838) 8 C & P 522; 173 ER 602; Handcock v Baker (1800) 2 Bos & P 260; 126 ER 1270. Various statutes have modified the position at common law. At the most basic level, statutes in most jurisdictions render it legal to detain a person for: ‘breaching the peace’; or if they are committing an offence; or it is believed on reasonable grounds that they have committed an offence. See Crimes Act 1914 (Cth) s 3Z; Crimes Act 1900 (ACT) s 218; Law

Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100; Criminal Code Act 1983 (NT) s 441; Criminal Code 1899 (Qld) ss 260 and 546; Criminal Law Consolidation Act 1935 (SA) s 271; Criminal Code 1924 (Tas) s 27; Crimes Act 1958 (Vic) s 458; Criminal Investigation Act 2006 (WA) s 25.

Prison authorities 3.71 False imprisonment may arise if prison authorities miscalculate remissions and restrain a dischargeable prisoner for longer than necessary: Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714. See also R v Governor of Brockhill Prison; Ex parte Evans (No 2) [2001] 2 AC 19. 3.72 As for discipline in the defence forces, if the detention of the member of the defence force is lawful on its face, there is no action in false imprisonment. In Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434, the plaintiff sued in false imprisonment after being imprisoned as sentenced by the Australian Military Court. To succeed, the plaintiff had to establish that the officer in charge of the Australian Defence Force’s corrective establishment was liable in false imprisonment. The High Court held that there was no false imprisonment and noted (at [67]): To permit the plaintiff to maintain an action against those who executed that punishment (whether service police or the officer in charge of the corrective establishment) would be destructive of discipline. Obedience to lawful command is at the heart of a disciplined and effective defence force. To allow an action for false imprisonment to be brought by one member of the services against another where that other was acting in obedience to orders of superior officers implementing disciplinary decisions that, on their face, were lawful orders would be deeply disruptive of what is a necessary and defining characteristic of the defence force. It would be destructive of discipline because to hold that an action lies would necessarily entail that a subordinate to whom an apparently lawful order was directed must either question and disobey the order, or take the risk of incurring a personal liability in tort.

Statutory authority 3.73

Many statutes permit government authorities and persons other than

police officers to detain people, for example, customs officers (Customs Act 1901 (Cth)) and immigration [page 52] officials (Migration Act 1958 (Cth)) and members of a civil aviation crew: Civil Aviation Regulations 1988 (Cth). Legislation may also give power to police officers to detain people, outside of criminal law. See, for example, Mental Health Act 2007 (NSW) s 22 (police may apprehend person who appears to be mentally ill or mentally disturbed if they believe on reasonable grounds that the person would attempt suicide or cause serious harm). 3.74 In Ruddock v Taylor (2005) 222 CLR 612; 221 ALR 32, the Commonwealth of Australia detained the respondent for two lengthy periods under the Migration Act 1958 (Cth). The High Court in other proceedings decided that the Commonwealth was not entitled to detain the respondent and the respondent sued the Ministers of the Federal Government responsible for the detention. The New South Wales Court of Appeal had held that the position of the appellants was analogous to that of a prison authority that keeps prisoners in custody longer than permitted by statute. There is no defence of good faith to false imprisonment. The court noted that the executive arm of the government is not to be treated differently and, therefore, it had to be established that its officers had lawful authority to detain: (2003) 58 NSWLR 269 at [3]. As a trespass action, false imprisonment requires a wilful or negligent act, that being, for this particular trespass, the intention to detain. By cancelling the respondent’s visa, the inevitable consequence was detention. On appeal, the High Court held by a majority of 5:2 that s 189 of the Migration Act 1958 (Cth) allowed persons to be detained if an officer ‘knows or reasonably suspects that a person … is an unlawful non-citizen’ and that as long as the officer had the requisite state of mind

when detaining the respondent, the detention was lawful. This was applicable even if the respondent was, in fact, not an unlawful non-citizen: at [28].

6

Remedies

3.75 In Plenty v Dillon (1991) 171 CLR 635 at 654; 98 ALR 353 at 366, it was explained, ‘once a plaintiff obtains a verdict in an action of trespass, he or she is entitled to an award of damages’. This is because the trespass to person actions are actionable without proof of damage: see 2.19. However, the type of damages awarded will depend upon whether the plaintiff suffered any loss and the circumstances surrounding the trespass. The types of damages available are nominal, compensatory, aggravated and exemplary: see Cassell & Co Ltd v Broome [1972] AC 1027 at 1124–1126.

Nominal Damages 3.76 A plaintiff who successfully establishes an action in trespass to the person but has suffered no loss or harm from the trespass is entitled to nominal damages. The nominal damages, which are merely a token amount, are awarded in recognition that the plaintiff’s rights have been interfered with. See generally Law v Wright [1935] SASR 20; Stephens v Myers (1830) 4 Car & P 349; 172 ER 735.

Compensatory Damages 3.77 If the trespass has caused the plaintiff to suffer loss or harm, the remedy is compensatory damages. The aim of such damages is to place the plaintiff in the position as if no tort had been committed against them. [page 53]

A plaintiff who has suffered injury would be entitled to compensatory damages for: bodily injury, pain and suffering; consequential loss of earning capacity; and expenses incurred, for example hospital and medical costs, provided these were reasonable and the actual consequences of the trespass to the person. 3.78 With the introduction of the civil liability legislation in all Australian jurisdictions that imposes restrictions upon the assessment of damages for personal injury (see Chapter 15), there is the issue of whether claims for personal injury in trespass actions fall within the ambit of the legislation. For example, in Queensland, it appears as if intentional torts such as trespass to person do fall within the ambit of the Civil Liability Act 2003 (Qld) due to the application section (‘Act applies to any civil claim for damages for harm’: s 4) and the definitions of ‘claim’ and ‘harm’: see Sch 2 Dictionary. Academic writing has pointed out that this interpretation does not equate with the intention of the Ipp Report4 that clearly refers to the law governing the assessment of damages for personal injury in negligence: Ipp Report at [1.10].5 In contrast, the Civil Liability Act 2003 (NSW) does not apply to intentional torts as intentional acts done with the intent to cause injury or death are excluded: s 3B(1)(a). See Cross v Certain Lloyds Underwriters [2011] NSWCA 136. Similar provisions are also found in the civil liability legislation of Tasmania, Victoria and Western Australia: Civil Liability Act 2002 (Tas) s 3B(1)(a); Wrongs Act 1958 (Vic) s 28C(2)(a); Civil Liability Act 2002 (WA) s 3B(1). In South Australia, the assessment of damages for personal injury refers to negligence and unintentional torts: Civil Liability Act 1936 (SA) s 51(a)(ii).

Aggravated and Exemplary Damages

3.79 Awards of damages for trespass to person may also include exemplary damages and aggravated damages: Henry v Thompson [1989] 2 Qd R 412. Such damages may be awarded in addition to nominal damages if there is no loss and in addition to compensatory damages if the plaintiff suffered loss from the trespass. The difference between the two types of damages was explained in New South Wales v Ibbett (2005) 65 NSWLR 168 at [83] as ‘in the case of aggravated damages the assessment is made from the point of view of the Plaintiff and in the case of exemplary damages the focus is on the conduct of the Defendant’.

Aggravated damages 3.80 Aggravated damages are awarded to compensate the plaintiff for injury to their feelings. In Watts v Leach [1973] Tas SR 16 at 19–20, Nettlefold J described the function of an award of aggravated damages in an action in battery as follows: The damage was caused by an intentional act of violence. That being so, in considering the appropriate lump sum for damages, the court must take into account that the plaintiff’s

[page 54] compensation must reflect any injury to the plaintiff’s feelings, ie, the indignity, mental suffering, disgrace and humiliation which may have been caused to him.

3.81 The fact that the plaintiff suffers a particular vulnerability and this leads to them suffering distress that would not otherwise be suffered, does not prevent an award of aggravated damages. In Trevitt v NSW TAFE Commission [2001] NSWCA 363, the appellant claimed in assault and false imprisonment. He was used in a mock hold-up organised by the lecturer in a classroom, not knowing that it was a role play and that the perpetrator was in fact another student and the pistol being used was not real. Damages were

awarded upon appeal for the appellant’s injured feelings, distress and affront to dignity. The Court of Appeal stated (at [49]): The distress suffered by the appellant was in my opinion due to his having a vulnerable personality, and would probably not have otherwise been suffered; but this does not in my opinion prevent damages being awarded for that distress for the tort of trespass to the person. Liability for trespass to the person does not require proof of foreseeability of damages, and in my opinion once liability for that tort is established the wrongdoer must take the victim as he finds him.

3.82 Damages for false imprisonment are awarded for the loss of liberty and the injury to feelings such as the indignity, disgrace and humiliation. In Myer Stores Ltd v Soo [1991] 2 VR 597, aggravated damages were awarded for false imprisonment to compensate the plaintiff for the distress that he had suffered as a result of the defendant’s conduct during shoplifting investigations which had no foundation. See also Eaves v Donelly [2011] QDC 207 where the plaintiff was awarded aggravated damages for embarrassment when she was walked in handcuffs past people whom she knew in her building and for her feelings of degradation, anxiety and sickness during her false imprisonment.

Exemplary damages 3.83 Exemplary damages are awarded to punish the defendant if the court finds that the defendant acted with contemptuous disregard for the plaintiff’s rights: New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485 at [51]. In Coleman v Watson [2007] QSC 343, the court refused to award exemplary damages in an action for assault and false imprisonment against two police officers, finding that the defendants had acted in good faith although the plaintiff’s arrest had been unlawful. In Trevitt v NSW TAFE Commission [2001] NSWCA 363, no exemplary damages were awarded as the wrongful conduct was not contumelious; it simply ‘flowed from a misguided view as to what would be helpful to the students being instructed’: at [52]. 3.84

All forms of damages may be awarded: Carter v Walker (2010) Aust

Torts Reports ¶82-076. In New South Wales v Radford [2010] NSWCA 276 at [97], Leeming JA explained that: the various categories of damages that may be awarded for trespass to the person, including assault and false imprisonment, are not self-contained. There is a close relationship between an award of ordinary compensatory damages for injury to the plaintiff’s feelings and an award of aggravated damages. It is necessary to assess compensatory damages, including aggravated damages, before determining whether exemplary damages should be awarded and, if so, the quantum of any such award.

[page 55] For example, in Henry v Thompson [1989] 2 Qd R 412, the three defendants were police officers who assaulted the plaintiff during an episode in which one of the defendants had jumped up and down on the head and shoulders of the plaintiff and another had urinated on him. Damages were upheld on appeal at $5000 for actual injury, $10,000 for aggravated damages for the humiliation the plaintiff experienced, and $10,000 exemplary damages intended to punish the defendants. See also Eaves v Donelly [2011] QDC 207 (exemplary damages awarded as the defendant’s dislike of the plaintiff influenced the defendant to wrongly use his power of arrest and hand cuffing).

Injunction and Other Orders 3.85 Although it has been the general view that courts have no power to grant an injunction to restrain one person from annoying or interfering with another outside the matrimonial jurisdiction (Fitzwilliam v Beckman [1978] Qd R 398), some courts have been prepared to grant an injunction to restrain a threatened assault: Zimitat v Douglas [1979] Qd R 454; Parry v Crooks (1981) 6 Fam LR 824; Corvisy v Corvisy [1982] 2 NSWLR 557. 3.86

Legislation has been enacted in all Australian jurisdictions that allows

a court to grant protection orders that may include protection for not only spouses (including de facto spouses) and children of the relationship, but also relatives and associates: see 3.35. 3.87 A person who has been trespassed against may, of course, complain to police and seek redress under the criminal law. As noted at 3.34, the courts have the power to order victims of crime to be compensated.

7

Limitation Period

3.88 The limitation period is dependent upon the type of loss the plaintiff has suffered, if any. If the plaintiff is seeking a remedy but the trespass has not led to loss, the action must be brought within six years, except in the Northern Territory: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s 14(1)(b); Limitation Act 1981 (NT) (three years) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act 1936 (SA) s 35(c); Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 13(1). The same limitation applies if the plaintiff is seeking compensation for loss other than personal injury, for example, property or economic loss. If the claim is for personal injury, the relevant limitation period is three years: Limitation Act 1985 (ACT) s 16B; Limitation Act 1969 (NSW) s 18A; Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s 11; Limitation of Actions Act 1936 (SA) s 36; Limitation Act 1974 (Tas) s 5; Limitation of Actions Act 1958 (Vic) s 27D; Limitation Act 2005 (WA) s 14(1). See also Chapter 14. [page 56]

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 3. J Devereux, ‘Known Knowns and Known Unknowns: The Mysteries of Intentional Torts Against the Person’ (2014) 22 Tort L Rev 134. P Handford, ‘Tort Liability for Threatening or Insulting Words’ (1976) 54 Can Bar Rev 563. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 11. F A Trindade, ‘The Modern Tort of False Imprisonment’ in N J Mullany (ed), Torts in the Nineties, LBC Information Services, Sydney, 1997. Hon P W Young, ‘Is There Any Law of Consent With Respect to Assault?’ (2011) 85 ALJ 23.

1.

P Handford, ‘Tort Liability for Threatening or Insulting Words’ (1976) 54 Can Bar Rev 563.

2.

For criticism of this approach, see R S O’Regan, ‘Provocation as a Defence in Queensland in a Civil Action for Assault’ (1990) 16 UQLJ 117.

3.

See R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, 2013, [3.25].

4.

Commonwealth of Australia, Review of the Law of Negligence — Final Report, October 2002, available at .

5.

See T Cockburn and B Madden, ‘A Renewed Interest in Intentional Torts Following Legislative Changes to the Law of Negligence?’ (2006) 14 Tort L Rev 161.

[page 57]

Chapter 4 Trespass to Land 1

Introduction

4.1 Trespass to land is one of the oldest forms of action known to the common law, reflecting the early significance placed upon real property and title to it. The action consists of any direct and unauthorised interference, either intentional or negligent, with a person’s possession of land. It was termed originally quare clausum fregit (meaning ‘wherefore he broke the close’). ‘Close’ was the term used to describe a person’s [en]closed land. 4.2 As a trespass action, the plaintiff does not have to prove that any damage was suffered; the mere interference with the plaintiff’s right of possession is sufficient to establish liability: Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807. The well-known words of Lord Camden LCJ in Entick v Carrington summarise the position: By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing … If he admits the fact, he is bound to shew by way of justification, that some positive law has empowered or excused him: at St Tr 1066; ER 818.

Those words were cited with approval by Brennan J of the High Court in Halliday v Nevill (1984) 155 CLR 1 at 10; 57 ALR 331 at 335. However, in a modern society, other competing policy factors have to be balanced against privileges associated with title to land and no longer is ‘every invasion of private property, be it ever so minute’ an actionable trespass.

4.3 To succeed in trespass to land, the following elements must be established: the plaintiff must have the requisite title to sue; there must be an actionable interference with land; and the defendant must be at fault.

2

Title to Sue

4.4 The law of trespass to land is principally concerned with protecting possession of land. For this reason, it is the possessor and not necessarily the owner who is entitled to sue. As to what is possession, it is a question of fact. In Newington v Windeyer (1985) 3 NSWLR 555, the plaintiffs owned houses that faced onto an open space of land called the Grove. There was no registered owner of the Grove itself, but the plaintiffs had used the [page 58] area for many years as their garden. The defendant owned two houses that backed onto the Grove. She took down the fence separating her houses from the Grove, and put up a low brick wall with gates giving access onto the Grove. The plaintiffs alleged that any entry by the defendant or her guests onto the Grove constituted trespass. The Court of Appeal of New South Wales held that entry by the defendant onto the Grove did constitute trespass, even though there was no registered owner of the land. McHugh JA (with whom Hope JA agreed) said (at 563–4): The [plaintiffs] are not the owners of the registered title of the Grove, but that fact does not prevent them maintaining an action of trespass against the [defendant]. The modern law of real property continues to invoke the medieval doctrine that possession is prima facie evidence of seisin in fee and that an estate gained by wrong is nevertheless an estate in fee simple. The

evidence proved that the [plaintiffs] had engaged in many acts of ownership over a period of nearly fifty years. They employed a man to mow the lawn. They engaged in the maintenance of the trees, garden and rockeries. They cut down trees when necessary. They used the Grove as a common garden … They blocked off attempts by … the [defendant] to use the Grove. On many occasions [they] told uninvited visitors that the Grove was private land and that they were trespassing. In my opinion, [the trial judge] was correct in finding that the [plaintiffs] were in possession of the Grove.

4.5 The possession of the plaintiff need not be lawful and a plaintiff in actual possession has title to sue except if another can establish a better right to possession: Newington v Windeyer (1985) 3 NSWLR 555 at 563. This emphasis on possession as the basis to sue may generate some inconsistencies; for example, a possessor, even a wrongful possessor such as a squatter, may be able to bring an action against anyone who is unable to establish a better legal right to possession, that is, a squatter with earlier possession could sue another subsequent interloper. However, the squatter could not maintain the action against the true owner or someone acting on the authority of the true owner: NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Ltd (1947) 47 SR (NSW) 273 (defence of jus terii); for defences to trespass, see Chapter 6. In Delaney v T P Smith Ltd [1946] KB 393, the plaintiff took possession of a house under a lease that was legally ineffective and, therefore, did not give any right to exclusive possession. The defendants were the owners of the house and reclaimed possession of the house by forcibly ejecting the plaintiff. The plaintiff alleged trespass to land. The Court of Appeal held that the plaintiff’s action failed because the defendants’ legal right to exclusive possession overrode the plaintiff’s actual possession. Tucker LJ, with whom Cohen LJ agreed, said (at 397): It is no doubt true that a plaintiff in an action in trespass to land need only in the first instance allege possession. This is sufficient to support his action against a wrongdoer, but is not sufficient as against the lawful owner …

Tenants and Lessors 4.6

As possession of the land gives standing to sue, it would be a tenant of

the demised premises that is interfered with who would have title to sue in trespass, not the lessor (the owner): Loxton v Waterhouse (1891) 7 WN (NSW) 98; Rodrigues v Ufton (1894) 20 VLR 539. In fact, a tenant lawfully in possession may sue a trespassing lessor: Kelsen [page 59] v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334. However, legislation or the lease may provide the lessor with certain rights of entry onto demised premises. For example, Pt 3 of the Residential Tenancies Act 1994 (Qld) states for what purposes a lessor may enter the demised premises and the required notice. Where a lease is broken by a tenant, giving a lessor the right to immediate possession, reentry by the lessor while the tenant is not in possession will deprive the tenant of any right to sue: Baker’s Creek Consolidated Gold Mining Co v Hack (1894) 15 LR (NSW) Eq 207. If the tenant is still in possession, there are cases to the contrary: Gifford v Dent (1926) 25 WN 33. The tenant may sue in trespass even if the alleged interference has been authorised by the lessor: Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd.

Trespass by relation 4.7 The doctrine of trespass by relation is a legal fiction and applies where a plaintiff with a right of possession enters land subsequent to the right having accrued. Where a person has a right to immediate possession of land, by exercising the right in entering upon the land, the person is deemed to have been in possession from the time the right accrued: Ocean Accident Co v Ilford Gas Co [1905] 2 KB 493; Ebbels v Rewell [1908] VLR 261; Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1 at 5. This means that their possession is ‘related back’ to the time when the right of entry arose to

permit an action for any interference which occurred between accrual and actual entry. Under this doctrine, a tenant who enters into a lease giving the right to exclusive possession from the date of execution of the lease, can sue a trespasser for any interference between the date of execution and the time of actual entry. Similarly, a landlord seeking mesne profits for trespass (see 4.69) from a tenant after ejecting them, would rely upon the legal fiction of trespass by relation: see Hampton v BHP Billiton Minerals Pty Ltd (No 2) [2012] WASC 285 at [300]–[308]. 4.8 In many jurisdictions, where the doctrine of interesse termini (interest that a lessee had under the common law before taking possession of the leased premises) has been abolished, a lease takes effect from the date fixed for commencement, so trespass by relation is of less importance: see Conveyancing Act 1919 (NSW) s 120A(1); Law of Property Act 2000 (NT) s 115(1); Property Law Act 1974 (Qld) s 102(1); Law of Property Act 1936 (SA) s 24B; Property Law Act 1958 (Vic) s 149(1); Property Law Act 1969 (WA) s 74(1).

Licensees 4.9 A licensee is a person given permission to enter or to remain on land, usually for a particular purpose, but without any entitlement to an interest in exclusive possession of land. As such a person does not have an exclusive right to possession, so they do not have the requisite title to sue in trespass. In Western Australia v Ward (2002) 213 CLR 1 at [504], McHugh J stated: In contrast (to a lease), a licence to use land ordinarily confers only a personal right that is enforceable in contract but not by an action in trespass or ejectment.

[page 60] In Georgeski v Owners Corporation SP49833 (2004) 62 NSWLR 534, in

relation to whether having a licence to occupy a jetty was sufficient to give title to sue in trespass, Barrett J of the New South Wales Supreme Court referred to Western Australia v Ward and explained (at [95]): … trespass to land entails interference with possession and is maintainable only by someone who has a right of possession. As between landlord and tenant, it is the tenant who may sue for trespass. As between licensor (freeholder) and licensee, where no right of possession is involved, it is the licensor who may sue for trespass.

The issue of title to sue was discussed in Shannon v New South Wales [2015] NSWDC 69. The court noted that the right to sue in trespass to land required the plaintiff to have ‘possession of the land to the exclusion of all others’ and that exclusive possession was distinct from ownership: at [23]. The plaintiff had sold the land to his parents in 1993 in order to satisfy a property settlement arising from his divorce. The transfer in title had no effect upon the plaintiff’s possession and occupation of the property and he continued to maintain the property and run cattle on it for commercial purposes. The plaintiff had title to sue as he was in possession of the land and ‘as a matter of fact and practicality, the only person who could be approached for permission to enter the land’: at [34].

Co-owners 4.10 Land may be owned by more than one person in the form of either a joint tenancy or a tenancy in common. Each co-owner is entitled to exclusive possession to all of the land, so a co-owner cannot sue another co-owner unless he or she is wrongfully excluded from the land: Luke v Luke (1936) 36 SR (NSW) 310. 4.11 If the property is co-owned but not all owners occupy the land, it is the co-owner in possession who has title to sue in trespass. In Baker v Police [1997] 2 NZLR 467, a husband and wife owned property, but they had separated and the husband lived in the house. The wife went to the house in the company of a police officer to retrieve some of her property. The husband

ordered the officer off the property and this was complied with. However, at the invitation of the wife, the officer re-entered the house. The husband became aggressive and was arrested for assaulting a police officer in the execution of their duty. The husband appealed the conviction, alleging that the officer was not lawfully in the house at the time of the assault. The New Zealand High Court allowed the appeal, holding that, though the wife was a part-owner of the property, she was not an occupier. To sue in trespass, a plaintiff had to have possession, not ownership, and only an occupier could grant a licence to a third party to enter the premises.

Easements and Profits à Prendre 4.12 A person with a right in the form of an easement or profit à prendre may be entitled to sue in trespass and this is an exception to the general rule that only a person with exclusive possession may sue: Fitzgerald v Firbank [1897] 2 Ch 96; Mason v Clarke [1955] AC 778; McDowall v Reynolds [2004] QCA 245 at [7]. An easement is a limited right enjoyed by one person over another’s land, for example, a right of way. A profit à prendre is a right exercised by one person in the soil of another, [page 61] accompanied by a participation in the profits of the soil, for example, a right to take timber, dig sand, or pasture sheep and cattle. A profit à prendre differs from an easement because it involves a right of profit.

Purchasers Under a Contract of Sale 4.13 Title to sue in trespass to land is complicated when a contract of sale over land is entered into. Title to sue as purchaser was considered in Cousins

v Wilson [1994] 1 NZLR 463. A large residential property in Dunedin was sold by an agreement which provided that the property was at the sole risk of the vendors until possession was given and taken, and that if there was any destruction or damage to the property before possession, the purchase price was to be reduced by an amount equal to the diminution in value of the property. Five days after settlement, the purchasers discovered that the defendant, who owned land adjacent to the property, had removed, felled and lopped trees and cleared bush to improve the view from his property. This work included the removal or destruction of 20 mature trees. The vendors had also been unaware of this work although they had given him permission to lop some trees and do some other minor work. The purchasers sued the neighbour in the District Court, claiming damages for alleged trespass and negligence. On appeal to the New Zealand High Court it was confirmed that at the time of the trespass the vendors were in possession of the land according to the terms of the contract of sale. The purchasers only had an equitable interest in the land and therefore did not have title to sue in trespass.

3

Actionable Interference

4.14 In Miller v Jackson [1977] QB 966 at 978, it was explained that trespass to land is an unjustified entry and includes the physical intrusion into land by tangible objects, be they persons or things. To establish an action in trespass to land, the interference complained of must be: direct; an interference with land; and unauthorised.

Direct Interference

4.15 Trespass to land in Australia is concerned with interferences that are direct in the sense that the interference that the plaintiff suffers is immediate upon the defendant’s act. If the interference is indirect, an action in nuisance may be possible: see Chapter 25. The distinction between direct and indirect is not always an easy one to draw: see Chapter 2. It has been said, for example, that to throw stones onto another’s land would be trespass, but it would be nuisance, an action on the case, to build a fence along the boundary which later became dilapidated so that it leaned over or collapsed onto the plaintiff’s land: Mann v Saulnier (1959) 19 DLR (2d) 130. [page 62] There may be differences of opinion on the same set of facts as to whether the interference has arisen directly or indirectly. For example, in Southport Corporation v Esso Petroleum Co Ltd [1954] 2 QB 182; on appeal [1956] AC 218, the master of an oil tanker which was stranded in an estuary jettisoned a quantity of oil in an attempt to refloat. The oil drifted ashore under the influence of tide and wind and polluted the beaches under the control of the Southport Corporation. One judge in the Court of Appeal, and two in the House of Lords, thought the damage arose consequentially, while another judge in the Court of Appeal saw the damage as direct. It was indirect, and actions in negligence or nuisance were the only ones that could succeed.

Interference with Land 4.16 Traditionally, ‘land’ included the area below the surface and the airspace — cujus est solum ejus est usque ad coelum et ad inferos (to whom belongs the soil, his it is, even to heaven, and to the middle of the earth). In modern times, to apply this maxim would mean that an action in trespass would lie for a passing aeroplane or even a satellite. Therefore, the concept of

what is ‘land’ in a trespass action in modern times is more limited as the courts have recognised the need to balance the rights of a person in possession of land with the needs of society in general.

Subsoil 4.17 There may be a trespass below the surface of the land because the occupier of land is normally in possession of what is under or attached to the land, and so has title to sue for trespass, even though the existence of the object below the surface is not known: Elwes v Brigg Gas Co (1886) 33 Ch D 562; Corporation of London v Appleyard [1963] 2 All ER 834; Re Cohen; National Provincial Bank Ltd v Katz [1953] Ch 88. Wrongful entry into the subsoil of land in the possession of another is trespass even if the entry is not through the surface of the land and even where entry is effected through a natural aperture on the defendant’s own land: Edwards v Sims Ky 791, 24 SW (2d) 619 (1929). In Burton v Spragg [2007] WASC 247 at [16], the court held that there was a trespass to land due to the: … actual intrusion into the plaintiff’s land by the excavations made by the defendant’s contractor … Unauthorised subterranean incursions into a neighbour’s property are a wellrecognised species of trespass: Bulli Coal Mining Co v Osborne [1899] AC 351.

4.18 The issue of trespass may be affected by severance of surface and subsoil rights, for example, where a mining right or some other licence is granted giving limited rights to interfere with the subsoil (Elwes v Brigg Gas Co) or there is a Crown grant by way of reservation of the minerals. For example, gold and silver is vested in the Crown at common law: AttorneyGeneral v Great Cobar Copper Mining Co (1900) 21 NSWR 351. If there is no such reservation or licence and material is mined, the defendant may also be liable in conversion: see Grundt v Great Boulder Gold Mines Pty Ltd (1937) 59 CLR 641 and Chapter 5.

[page 63]

Airspace 4.19 It was not until 1978 that a superior court was called upon to adjudicate on the conflict between the public right to use airspace and the private rights of a landowner to keep the airspace above property free of modern airborne interference. Lord Justice Griffiths, in the landmark decision of Bernstein v Skyviews & General Ltd [1978] QB 479, struck a balance by restricting the rights of an owner in the airspace above land to such height as is necessary for the ordinary use and enjoyment of the land and the structures upon it, so that above that height a landowner has no greater right to the airspace than any other member of the public. The legal position was summarised by Griffiths J (at 484): The problem is to balance the rights of an owner to enjoy the use of his land against the rights of the general public to take advantage of all that science now offers in the use of air space. This balance is in my judgment best struck in our present society by restricting the rights of an owner in the airspace above his land to such height as is necessary for that ordinary use and enjoyment of his land and the structures upon it, and declaring that above that height he has no greater rights in the airspace than any other member of the public.

4.20 This view accords with the Australian position, for example in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490. In that case, the defendant was carrying out a commercial development of its property and sought permission from the plaintiff to erect scaffolding over the plaintiff’s land. The plaintiff informed the defendant that permission would be granted only in return for payment of considerable sums of money. The defendant rejected these terms and built the scaffolding anyway, at a height of about 4.5 metres above ground level. The plaintiff sued the defendant, alleging that the incursion of the scaffolding into the airspace above its land constituted a trespass. The defendant relied on Bernstein v Skyviews & General Ltd, arguing that there was no trespass because the height and manner of the entry of the scaffolding into the plaintiff’s airspace did not

interfere with the plaintiff’s use of its land. Not unexpectedly, the Supreme Court of New South Wales held that the scaffolding did constitute a trespass to the plaintiff’s land. Hodgson J held (at 495): I think the relevant test is not whether the incursion actually interferes with the occupier’s actual use of the land at the time, but rather whether it is of a nature and at a height which may interfere with the ordinary use of the land which the occupier may see fit to undertake.

In PCH Melbourne Pty Ltd v Break Fast Investments Pty Ltd [2007] VSC 87, the plaintiff alleged that cladding on the defendant’s building projected up to 60 millimetres into the airspace above his land and sought a permanent injunction requiring the removal of the cladding, so far as it encroached onto his land. The injunction was granted, the trial court holding that building in the airspace was an example of the ordinary use of the land in the particular area (high-rise buildings). The cladding interfered with ‘the actual and potential ordinary use of the plaintiff’s land’: at [62] (confirmed on appeal in Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311). [page 64] See also Kelsen v Imperial Tobacco Co (of Great Britain and Ireland) Ltd [1957] 2 QB 334 (a sign); Graham v Morris [1974] Qd R 1 (a crane jib suspended); LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (scaffolding); Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 (screens on building to prevent building material from falling). 4.21 Legislation also provides exceptions as to when a trespass to airspace is actionable. For example, s 72(1) of the Civil Liability Act 2002 (NSW) provides: … no action lies in respect of trespass or nuisance by reason only of the flight (or the ordinary incidents of the flight) of an aircraft over any property at a height above the ground that is reasonable (having regard to wind, weather and all the circumstances of the case) so long as the Air Navigation Regulations are complied with.

4.22 If the projection over the airspace results from natural causes (for example, branches overhanging from a neighbour’s tree) it cannot be trespass because it is indirect, but an action on the case in private nuisance may lie: see Chapter 25.

Unauthorised Interference 4.23 Although consent can be regarded as a defence to the trespass actions (see 6.5), to be an actionable trespass to land ‘it is necessary for the plaintiff to negative consent’: Lord v McMahon [2015] NSWSC 1619 at [148]. Entering land in the possession of a plaintiff does not amount to trespass if it is done with consent. In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [23], Spigelman CJ stated: The tort of trespass is committed whenever there is interference with possession of land without lawful authority or, relevantly, the licence or consent of the person in possession.

Consent may arise in various forms: express licence; implied licence; or by the authority of law.

Express licence 4.24 A person in possession of land may give permission for another to enter their land for a particular purpose, granting an express licence to enter, for example giving permission for a tradesperson to enter the premises for the purpose of carrying out repairs. Once the purpose of the licence has been achieved, the licence comes to an end and the licensee must depart within a reasonable time. If they stay beyond a reasonable time, they become unauthorised. 4.25 If a licence is granted for a particular purpose and the licensee enters the property for a different purpose, then they will be a trespasser. In Barker v

R (1983) 153 CLR 338; 47 ALR 1, the defendant had the permission of the owner of the property to look after the property while they were away. However, instead the defendant entered the house and removed the furniture. It was held that the defendant was a trespasser as he had authority [page 65] to enter the house for the purpose of security, but instead he had entered with the purpose of committing theft. 4.26 The difficulty lies in cases of entry for mixed purposes as in Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584. In that case, the defendants had a contractual right to enter the plaintiff’s commercial premises to repossess certain goods. In purported exercise of the contractual right to enter to repossess nominated goods, the defendant took possession of the other goods also, to which there was no right. The High Court held that there was no trespass despite the fact that the defendant had exceeded its licence to enter.

Implied licence 4.27 The decision of the High Court of Australia in Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331 can be seen as a substantial inroad into the common law’s desire to promote ownership and possession of land as a fundamental right by balancing it against the need for public officers to exercise powers and carry out duties conferred by statute. 4.28 In Halliday v Nevill, the majority (Gibbs CJ, Mason, Wilson and Deane JJ) held that when police entered onto private property in order to arrest a driver of a motor vehicle in the driveway of a property which was not his home, but out of which he had been seen driving a vehicle (when he was

known to the police as a disqualified driver), this was not a trespass as there was an implied licence to enter. The majority held: The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house: at CLR 7; ALR 333.

No doubt, pragmatic considerations such as not wishing to unduly hamper the day-to-day enforcement of the criminal law affected the decision of the majority in that case, but significant policy considerations underpin it. However, the decision must be seen as a significant diminution of the common law rights of owners or occupiers of property to complain of trespass. Brennan J, in dissent, made the following observations: There is, if course, a tension between the common law privileges that secure the privacy of individuals in their own homes, gardens and yards and the efficient exercise of statutory powers in aid of law enforcement. The contest is not to be resolved by too ready an implication of a licence to police officers to enter on private property. The legislature has carefully defined the rights of the police to enter; it is not for the courts to alter the balance between individual privacy and the power of public officials. It is not incumbent on a person in possession to protect his privacy by a notice of revocation of a licence that he has not given; it is for those who infringe his privacy to justify their presence on his property. There may well be a case for

[page 66] enlarging police powers of entry and search, but, that is a matter for the legislature: at CLR 20; ALR 243.

See also Robson v Hallett [1967] 2 QB 939 at 951. The majority in Halliday v Nevill did concede that an implied refusal or withdrawal of the licence might arise, but otherwise affirmed that the path or

driveway is held out by an occupier as the bridge between the public thoroughfare and his or her private dwelling upon which a passerby may go for a legitimate purpose. 4.29 The implied invitation to the public to enter is limited to bona fide entrants, that is, persons entering the property for legitimate purposes. In Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457, the defendants, a television crew, entered the plaintiff’s business premises with one of the plaintiff’s customers. They filmed videotape of the interior of the premises and harassed those on the premises. The court held that the defendants had trespassed on the plaintiff’s premises as the plaintiff’s implied invitation to the public to visit its business premises was limited to clients and members of the public bona fide seeking information or advice, and did not extend to unwanted visitors such as intrusive film crews or, for that matter, robbers. See also Gallagher v McClintock [2014] QCA 224 where it was held that any licence of the appellant to be on church land was subject to his complying with statutory requirements in relation to religious worship as well as requiring him to ‘behave in reasonable conformity with the requirements of the religion in which he was participating’: at [26]. 4.30 In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, the respondent leased land upon which he had built a motorcycle track that was used for training purposes. The land was also used for the storage of used tyres. The storage of the tyres was of concern to the Environmental Protection Authority (EPA), which had been observing deliveries of the tyres. The boundary of the property was fenced, with locked gates at the driveway. On the day in question, a delivery of tyres was made; the respondent unlocked the gates to allow the truck access to the property but did not lock the gates behind the truck. Members of the EPA, the local council, the police and a television journalist with crew, together with employees of the appellant, entered through the gate onto the property. Seeing the journalist, the respondent asked where she was from and, upon being informed that she

was from A Current Affair, Channel Nine, the respondent first of all stated that he had a statement to make but then said that he wanted no persons on his property. The respondent sued in trespass to land, seeking damages, including damages for the mental trauma he suffered as a result. The appellant argued that the use of the land as a tyre dump and/or as a racing track necessarily involved permission for members of the public to enter, or, alternatively, that there was an implied right to enter as a member of the public to communicate with the occupier, in this case, to ask if the respondent would grant an interview. The court held that the mere fact that the respondent had not relocked the gates did not of itself establish an implied licence to enter: at 343–4. The scope of an implied licence would be for the purposes of the conduct of the tyre business or the racetrack. As the appellant did nothing that was referable to these purposes, there was no implied licence. As for the alternative argument, the evidence before the court did not establish any request for permission to film [page 67] but rather an assertion that they were there to do a story. Therefore, the appellant also failed to establish that they were on the property for the purpose of requesting authority to film or conduct an interview: at 349.

Revocation or withdrawal of licence 4.31 A licence may naturally come to end upon its purpose being achieved, or the licence may be withdrawn or revoked. Revocation may take place after the plaintiff has initially consented to the entrance or may be withdrawn prior to any entry that may otherwise be implied. If a licence is revoked after being given or implied: the licensee must be given notice of the withdrawal by the person in possession of the land; and

a reasonable time must be allowed to permit the licensee to depart: Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605. 4.32 It is a question of fact whether there has been communication of the revocation. See Maynes v Casey [2011] NSWCA 156 at [28], where the court held that the authorities did not support the argument that the ‘mere publication of a notice, unbeknownst to the visitor, was sufficient to render that person a trespasser’. In Wilson v New South Wales (2010) 278 ALR 74 at [51], Hodgson JA (McColl and Young JJA agreeing) stated: … the licensee must first have notice that the licence is revoked; and consistently with the general legal position in relation to the giving of notice, that requires a communication to the licensee, which the licensee understands as a revocation of the licence or which a reasonable person in the position of the licensee would understand as a revocation of the licence. This means in turn that the communication must be such that the licensee did understand it, or a reasonable person in the position of the licensee would understand it, both as coming from a person with authority to revoke the licence and as having such content as to constitute such a revocation. If the communication comes from a person apparently in occupation of the land in question, this will generally be enough to convey to a licensee or to a reasonable person in the position of the licensee that it is from a person with the authority to revoke the licence.

As to whether revocation of a licence may be by only one co-owner of the property, see the discussion in New South Wales v Koumdjiev (2005) 63 NSWLR 353. 4.33 An implied licence may be revoked by securing gates, as in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, or placing written notices to warn off strangers or particular classes of entrants. Prior communication with the occupier may also negate any implied licence to enter the property. In Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353, the plaintiff owned a small farm in South Australia and was the parent of a 14-year-old daughter, against whom allegations that she had committed offences had been made. Under the relevant legislation, a complaint was laid against the daughter alleging she was in need of care and control. A justice issued a summons to the child to appear and police made several unsuccessful

attempts to serve her. On one occasion, it was left with the father but the child did not appear. A fresh summons was issued to the child, as were notices to the father and mother to attend. [page 68] Mr Plenty had previously made it clear in statements and correspondence that no one was to enter his land to serve the summons and that it was to be served by post. Two police officers again entered the property to serve the daughter and the parents. The High Court held that entry onto private land against an owner’s wishes was not justified under the common law merely as part of an attempt to serve process such as a summons which is non-coercive, though it might be different if entry was to effect an arrest. Mr Plenty had clearly revoked any implied consent to enter his land. 4.34 Upon the end or the withdrawal of consent, the licensee does not immediately become a trespasser; reasonable time must be allowed for them to leave. In Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605, a patron of a racecourse, who had purchased a ticket entitling entry, was forcibly removed in breach of the contract of entry. He was held to be a trespasser as he failed to leave within a reasonable time after consent to his presence had been revoked. 4.35 In Kuru v New South Wales (2008) 246 ALR 260, the High Court considered whether a plaintiff could revoke consent given to police officers to enter premises to investigate reports of domestic violence. A majority held that the plaintiff had revoked his consent for the police officers to be on the property and, by remaining after the revocation, the officers were trespassing. It was stated (at [43]): As was pointed out in this court’s decision in Plenty v Dillon, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing

either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. Secondly, except in cases provided for by the common law and by statute, police officers have no special rights to enter land. And in the circumstances of this case it is also important to recognise a third proposition: that an authority to enter land may be revoked and that, if the authority is revoked, the entrant no longer has authority to remain on the land but must leave as soon as is reasonably practicable. [footnotes omitted]

This overturned the decision of the New South Wales Court of Appeal (New South Wales v Kuru (2007) Aust Torts Reports ¶91-893) where the majority held that there was no trespass despite the revocation, as at the time the police had not finished their investigations and were ‘entitled at common law to stay until they had taken reasonable steps to satisfy themselves no offence had been committed’: at [178] per Ipp JA.

Authorised by law 4.36 Many statutes, state and federal, confer the right of non-consensual entry to property by officers for the purpose of carrying out their functions, for example Fire and Emergency Services Act 1990 (Qld) s 53 (an authorised fire officer may enter any premises to protect persons or property from danger or potential danger caused by fire); Local Government Act 1993 (NSW) s 199 (authority to enter premises). Where there is clear and unambiguous statutory conferral of a right of entry upon a public official, such as an electricity meter reader, preventing a legitimate right of entry may expose the occupier to breach of some statutory provision attracting a penalty and perhaps termination of the relevant service, for example Electricity Act 1994 (Qld) ss 137 and 138 [page 69] (authority to enter a property for the purpose of meter reading and if entrance is refused or obstructed the electricity supply may be disconnected). 4.37

Under the common law, police officers, or citizens, have the right to

enter private property in specific situations such as following an offender who is attempting to escape or to prevent a murder. However, entry upon property in the execution of criminal law is often done under the authority of statute. The legislation in relation to the power of police to enter premises in the various Australian jurisdictions was enacted to overcome the limits on that power arising from the High Court decision in Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353. For example, s 19 of the Police Powers and Responsibilities Act 2000 (Qld) allows a police officer to enter premises and remain there for a reasonable time in circumstances that would otherwise amount to a trespass. If the property is a private dwelling, the police cannot enter without consent of the person in possession or unless they have a warrant. There are exceptions to this; for example, a police officer may enter private property without consent in order to save a life. See also Crimes Act 1914 (Cth) s 3T; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 9–10; Police Administration Act 1978 (NT) s 119; Summary Offences Act 1953 (SA) s 72B; Crimes Act 1958 (Vic) s 459A; Criminal Investigation Act 2006 (WA) s 33.

Trespass ab initio 4.38 Where a person enters land pursuant to common law or statutory authority and commits a wrongful act while on the land, the person is deemed to have been a trespasser ab initio (from the beginning). The legality of the entry is vitiated by the illegal act: see The Six Carpenters’ Case (1610) 8 Co Rep 146a; 77 ER 695; Chic Fashions (West Wales) Ltd v Jones [1968] 2 QB 299; O’Brien v Shire of Rosedale [1969] VR 112. If the plaintiff gave consent and the consent is later revoked, the entrant becomes a trespasser upon failing to leave within a reasonable time. In contrast, the doctrine of trespass ab initio applies to persons who are permitted to enter a plaintiff’s land under the provisions of a statute (for example, an electricity meter reader) or under the common law (for example, a police officer in pursuit of a felon).

4.39 By committing some positive wrongful act (misfeasance, not mere nonfeasance), the entrant is treated as a trespasser from the time of entry, no matter how innocent or proper the conduct up until the time of the abuse. This doctrine is not without its critics: see for example, Barker v R (1983) 153 CLR 338; 47 ALR 1 per Brennan and Deane JJ. Lord Denning MR, one of the well-known critics of the doctrine, however, used it to make minicab drivers liable for unlawfully touting for business. In Cinnamond v British Airports Authority [1980] 1 WLR 582, the British Airports Authority prohibited six minicab drivers from entering Heathrow Airport. Lord Denning stated (at 588): … when one of these car-hire drivers picks up a passenger at a London hotel and drives to the airport, he has a right to enter so as to drop his passenger and luggage. But the driver has no right whatever to hang about there so as to “tout” for a return fare. By so doing he is abusing the right which is given to him by the law: and that automatically makes him a trespasser from the beginning.

[page 70]

4

Fault

4.40 As it is a trespass action, the interference to the plaintiff’s possession of the land must be by the fault of the defendant, that is, the act must be intentional or negligent. The fact that the defendant is mistaken in the belief that they have consent or lawful authority to enter the land does not make the entry unintentional: Nyoni v Shire of Kellerberrin (No 6) [2015] FCA 1294. In Public Transport Commission (NSW) v Perry (1977) 137 CLR 107; 14 ALR 273, a passenger at a railway station had an epileptic fit and fell onto the tracks, where she was not permitted to go. A majority of the High Court of Australia held that she was not a trespasser on the railway tracks, as she had gone onto them involuntarily under the effects of the fit. Similarly, in Smith v

Stone (1647) Style 65; 82 ER 533, the defendant who had been thrown onto the plaintiff’s land had not committed an intentional act and was not at fault. In League Against Cruel Sports Ltd v Scott [1986] QB 240, it was held that the master of the hounds was liable for the trespass of the hounds entering the plaintiff’s land if the master had intended the hounds to enter or failed to prevent them from entering through negligence.

5

Examples of Actionable Interferences

4.41 The most common forms of trespass to land are unauthorised entry or failure to leave after consent has been revoked. However, trespass may consist of any of the following forms, provided there is no lawful justification.

Placing or Leaving Objects on Land 4.42 A person who places or throws any material object onto the land of the plaintiff commits a trespass: Westripp v Baldock [1939] 1 All ER 27 (a ladder placed against the wall); Watson v Cowen [1959] Tas SR 194 (earth); Smith v Stone (1647) Style 65; 82 ER 533 (a person); Jones v Stones [1999] 1 WLR 1739 (flower pots on wall). In Konskier v B Goodman Ltd [1928] 1 KB 421, the defendants had permission from the owner of an adjoining house to pull down part of a chimney in return for their promise to the owner that the chimney would be rebuilt and any damage made good. Rubbish was left on the roof of the house which caused the gutters to block and flooding in the basement. The court held that the defendants only had a limited licence and were bound to remove the rubbish within a reasonable time after their work was completed. By leaving the rubbish, a trespass was committed and for every day it remained it was a continuing trespass: see 4.46.

Animals 4.43 A person may be liable for trespass to land in respect of an entry on land by animals where that person directed their entry, for example, by ordering or encouraging the animals or by negligently failing to prevent their entry (for example, the master of a hunt in respect of hounds: see Beckwith v Shordike (1767) 4 Burr 2092; 98 ER 91). [page 71] That person may also be liable vicariously for employees, agents or others over whose conduct control is exercised by them, provided they commit a trespass: League Against Cruel Sports Ltd v Scott [1986] QB 240. For liability for animals, see Chapter 26.

Transient Interferences with Airspace 4.44 Land includes the airspace at a height which is for the ordinary use and enjoyment of the land and the fixtures upon it: Bernstein v Skyviews & General Ltd [1978] QB 479. It was originally thought there could be no trespass by mere incursion into the airspace without touching the surface of the land. In Pickering v Rudd (1815) 4 Camp 219; 171 ER 70, Lord Ellenborough expressed an early view that the passage of a balloon in flight could not be a trespass unless it actually landed. In Clifton v Bury (1887) 4 TLR 8, it was held that bullets fired from a rifle range on nearby land which passed over the plaintiff’s land at 75 ft was not a trespass in the strict sense of that term (although it could form the basis for nuisance as an action on the case), but that it would be a trespass if the bullets fell onto the land. 4.45 However, the better view is that a transient interference with the airspace may be a trespass. In Davies v Bennison (1927) 22 Tas LR 52, the

defendant fired at a neighbour’s cat on the neighbour’s roof. The bullet killed the animal and remained in its body so that in a sense it remained in the airspace above the land. It was held that a wrongful intrusion (even if only transient) into the airspace over land of another could constitute trespass to land, at any rate at such a low height.1

Continuing Trespass 4.46 An interference with land that is continuous, in the sense that the trespasser remains on the land or the goods remain on the land, is referred to as a ‘continuing trespass’. There is a separate cause of action for each day the interference continues: Konskier v B Goodman Ltd [1928] 1 KB 421. Therefore, a new cause in trespass to land arises each day and a new limitation period commences each day. Courts will take into account the fact that an interference is a continuing trespass if the plaintiff seeks the remedy of an injunction, as it may add weight to the argument that an award of damages would not be an adequate remedy: see 4.65. 4.47 Where there is a continuing trespass, a subsequent transferee of the land may sue: Hudson v Nicholson (1839) 5 M & W 437; 151 ER 185. In the case of things left on land, the doctrine is limited to failure to remove trespassory chattels but does not apply to a continuing failure to restore: Clegg v Deardon (1848) 12 QB 576; 116 ER 986; Lord v McMahon [2015] NSWSC 1619 at [156].

6

Remedies

4.48 The remedy for trespass to land will depend upon the type of interference and whether the plaintiff suffered any loss. [page 72]

Self-help 4.49 A plaintiff in possession of the land may use force to resist a wrongful or attempted entry by a trespasser, but the force must be reasonable. Reasonable force may be used to remove a trespasser who fails to leave within a reasonable time of being requested: Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605. In Hemmings v Stokes Poges Golf Club [1920] 1 KB 720, the golf club had employed Hemmings under an employment contract which included a right for him to occupy a cottage. His employment was terminated but he refused to leave the cottage. The golf club sent some men who entered the cottage with reasonable force and removed the plaintiff, his wife and their furniture. He sued for assault, battery and trespass to land. The English Court of Appeal held that in the absence of proof of the use of unreasonable force, no cause of action arose. 4.50 A plaintiff ousted by a trespasser may regain possession by using force. Therefore, an owner or lawful tenant can expel squatters or ‘sit in’ demonstrators. However, the force used must be reasonable and, if a plaintiff is in doubt, he or she should enlist the aid of the police or pursue a civil action for recovery of possession. The lessor’s right to re-enter demised premises to expel a lessee exists under the common law and under statute. In Queensland, ss 277 and 278 of the Criminal Code authorise the use of reasonable force but the act of self-help cannot cause bodily harm.

Damages 4.51

In SSYBA Pty Ltd v Lane [2013] WASC 445 at [81] it was stated:

A trespass to land always involves an award of damages even if the amount is nominal. It vindicates the owner’s right to quiet possession. A trespass which causes actual damage entitles the plaintiff to compensation for that damage.

The damages awarded will take into account the loss suffered and the

nature of the plaintiff’s interest in the land: Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368 at [260].

Nominal damages 4.52 Nominal damages may be awarded for trespass to land where an interference with the plaintiff’s possession has been proven but there is no actual damage: Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87; Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368. An example can be found in Hill v Higgins [2012] NSWSC 270 where it was held that the trespass to the plaintiff’s land by the deposit of bricks and the unauthorised entry by the defendant to remove the bricks had caused no loss and awarded nominal damages in the amount of $220. In Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368, although the defendant had encroached upon the land that the plaintiff had an interest in as a sublessee (entitled to establish a quarry and mine it), there was no evidence that the plaintiff ever intended to do build a quarry. As there was no diminution [page 73] in the value of the land, and taking into account the plaintiff’s interest in the land, an award of $1000 nominal damages was made. However, the object of trespass to land is to protect the plaintiff’s right to exclusive occupation of the land; so even though there may be no damage to the land, the nominal damages may be quite significant. For example, in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, nominal damages of $25,000 were awarded. Spigelman CJ stated (at [178]): General damages for trespass should reflect the significant purpose of vindicating the plaintiff’s right to exclusive occupation.

4.53 Should the defendant obtain some benefit from the trespass (for example, occupying it as a tip, as in Whitwham v Westminster Brymbo Coal and Coke Co [1896] 1 Ch 894), the court may order payment of a reasonable sum for the use resulting in the benefit. In Yakamia Dairies Pty Ltd v Wood [1976] WAR 57, the plaintiff recovered the value of agistment for the defendant’s trespass in pasturing cattle on the plaintiff’s land. See also Downing v WIN Television (NSW) Pty Ltd (No 2) [2011] NSWSC 563, where the trespass was the failure to remove a television tower, building and fence from the plaintiff’s land. Damages were assessed as ‘the reasonable or market rental value of the land during the time of the defendants’ occupancy’: at [9]. See also 4.69.

Compensatory damages 4.54 If there is damage resulting from the trespass, a plaintiff is entitled to recover compensatory damages as ‘a trespasser is liable for any loss he or she causes to the land or the value of the land in question’: Windridge Farm Pty Ltd v Grassi (2011) 254 FLR 87 at [145]. Such damages are awarded for the actual damage suffered by the plaintiff that is the natural and probable consequence of the trespass: Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280. 4.55 Where the trespass has caused material damage to the land, the measure of compensatory damages has traditionally been regarded as the diminution in the value of the property caused by the trespass: Jones v Shire of Perth [1971] WAR 56. Now the courts are more realistic in assessing the damage and the method of assessment will depend upon what is considered reasonable in the circumstances: see Fish Steam Laundry Pty Ltd v Col Johnson Electrics Pty Ltd (1992) 2 Qd R 585; Port Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 at [186] and [207]. 4.56 If the decrease in the value of the land is awarded, the courts compare the value of the land immediately prior to the trespass and after. In Port

Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 at [215], the basis of the valuation method was explained as: … what would a person desiring to buy the land have had to pay for it on the relevant date to a vendor willing, but not desirous, to sell it for a fair price.

Any subsequent appreciation in the value of the land due to market forces is disregarded: Port Stephens Shire Council v Tellamist Pty Ltd. [page 74] 4.57 In the appropriate case, the cost of reinstatement, as opposed to the decrease in value of the land, is admissible as the measure of damages: Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36; C R Taylor (Wholesale) Ltd v Hepworths Ltd [1977] 1 WLR 659; [1977] 2 All ER 784. In SSYBA Pty Ltd v Lane [2013] WASC 445, the defendant had attached several brackets to the wall of the plaintiff’s neighbouring building without consent, constituting a trespass. These brackets, along with their load, caused significant damage to the structure of the wall. When the defendant did remove the brackets, they were cut off with an angle grinder, leaving the bolts in the wall. The court accepted the evidence of the schedule of repair to award compensatory damages. Damages were awarded to cover the cost of having the remaining bolts removed and the wall repaired. In addition consequential loss was allowed that included supervision of the work, a survey of the boundaries of the adjoining properties and the cost of removing, storing and returning the stored goods of the premises during the restoration. 4.58 Restoration may not be a proper measure of the damage if it is unreasonably disproportionate to the reduction in value. In Jones v Shire of Perth [1971] WAR 56, soil was removed causing loss of support to the plaintiff’s land, thereby reducing its value by $2000. The cost of restoration at $10,000 was regarded as too disproportionate. In Parramatta City Council v

Lutz (1988) 12 NSWLR 293 at 335, McHugh JA referred to this as the ‘fundamental rule’: When the choice is between damages which constitutes the value of the property destroyed or the cost of reinstating and restoring that property and the cost of restoration exceeds the value of the destroyed property, a plaintiff is entitled to the cost of reinstatement only if it is reasonable to have the property reinstated and restored: Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36 at 39–40 per Samuels JA.

See Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14, where the court held there were no special circumstances to justify awarding the cost of reinstating the property ($60,000) when the decrease in value was $17,000 and the value of the land was $70,000. 4.59 In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280, the High Court held that damages can be recovered in cases of intentional torts for the harm that is the natural and probable consequence of the tortious act. Reasonable foreseeability is not the correct test. For example, in Hogan v A G Wright Pty Ltd [1963] Tas SR 44, the plaintiff received damages for the consequential loss of a horse which was killed after it escaped through a broken fence which was damaged by the defendant’s trespassing bulldozer. 4.60 Where chattels are severed from the land by an act of wilful wrongdoing, for example sandstone is cut and taken from a quarry or gravel removed, the plaintiff may recover either the value of the chattel at the moment of severance or the diminution in the value of the land. See Port Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98, where it was held that the removal of trees did not cause any diminution in the value of the land and [page 75] nominal damages were awarded for the trespass. If the trespass was innocent,

the defendant may be entitled to retain the cost of severance: BilambilTerranora Pty Ltd v Tweed Shire Council [1980] 1 NSWLR 465.

Exemplary and aggravated damages 4.61 If a trespass is done wilfully, or there are aggravating circumstances, aggravated and exemplary damages may be awarded: Greig v Greig [1966] VR 376; [1966] ALR 989. 4.62 Exemplary damages Exemplary damages are awarded by a court to punish and deter the defendant. In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448 at 472, the High Court awarded exemplary damages in relation to trespass to land ‘in an amount that would be likely to have a deterrent effect — sufficient to make Caltex smart’. However, it was noted in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [185], that exemplary damages are rarely awarded for trespass to land and require something more than just evidence of fault. See also New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485 at [33]. In Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519 at [949], the amount of $120,000 was awarded in exemplary damages, the court noting: The circumstances of this trespass were so bad that they should be punished and future like trespasses firmly discouraged.

4.63 Aggravated damages Aggravated damages are a form of compensatory damages, awarded because the defendant’s reprehensible conduct aggravated the injury to the plaintiff’s dignity or feelings. In New South Wales v Ibbett (2006) 229 CLR 638; 231 ALR 485, the plaintiff’s son arrived at her home in the early hours of the morning driving his van with the police in pursuit. The son drove the van into the garage and closed the door with the remote control. As the door was closing, an officer dived under the door. The plaintiff entered her garage to find the officer pointing a pistol at her son. Both the son and the plaintiff ordered the officer to leave the premises. Pointing the pistol at the plaintiff, the officer ordered the garage

door to be opened to allow entry to another police officer. The entry to the plaintiff’s property was held not to have been done with lawful justification and amounted to trespass to land. In assessing damages, the High Court awarded aggravated damages, noting that such damages compensate a plaintiff for injury resulting from the circumstances of the interference: at [30]. The court stated (at [31]): The interest of the plaintiff against invasion of the exclusive possession of the plaintiff extends to the freedom from disturbance of those persons present there with the leave of the plaintiff, at least as family members or as an incident of some other bona fide domestic relationship. The affront to such persons may aggravate the infringement of the right of the plaintiff to enjoy exclusive and quiet possession.

4.64 In TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333, the plaintiff’s claim for damages for trespass to land included damages for mental trauma. The New South Wales Court of Appeal held that it was unnecessary to decide whether damages for personal injury, specifically psychiatric injury, may be recovered in an action for trespass to land, but [page 76] noted that it was undesirable to lay down a rule that such damages were not recoverable. It was reasoned, in that case, that filming on premises and attempting to conduct an interview would not result in personal injury, such as mental trauma, to a person of normal fortitude. However, the court did award aggravated damages, Spigelman CJ saying (at [107]): Humiliation, injured feelings and affront to dignity may be a natural and probable consequence of intrusion by media on private property. Such damage is compensable as aggravated damages. Such damage is different in kind to mental trauma.

Aggravated damages were also awarded in Craftsman Homes Australia Pty Ltd v TCN Channel Nine Pty Ltd [2006] NSWSC 519, where a reporter and film crew deceived the plaintiff by pretending to be potential clients. Smart AJ stated (at [942]):

The hurt to feelings, humiliation and affront to dignity experienced by Mr Cox was aggravated by the way in which the first and third defendants acted in the course of their trespass. That included Mr Fordham letting the camera crew into the home at Edmondson Park, then, with cameras rolling, confronting Mr Cox with broad general allegations of poor work and an accusation of having left a trail of devastation and filming him. No prior notification was given. The statement that Mr Cox should answer questions rather than “running away” aggravated the hurt, especially when it was shouted out from the front door while Mr Fordham and the camera crew were hovering around. Mr Cox must have been aware that his reputation and the business in which he was deeply involved were being attacked and damaged.

See also Balven v Thurston [2015] NSWSC 1103 (aggravated damages awarded as trespass to land was committed in the context of intimidation and the plaintiff’s mental harm was the intended or probable consequence).

Injunction 4.65 The courts have the power to grant an injunction ‘to restrain any actual, threatened or apprehended trespass to land’: see, for example, District Court of Queensland Act 1967 (Qld) s 68(1)(b)(xii). The granting of an injunction is discretionary and the onus is upon the party seeking the injunction to prove that damages would be inadequate: Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457. 4.66 An injunction may order the tortfeasor to cease or not do an act that amounts to a tortious interference (prohibitory injunction) or to do a particular act (mandatory injunction). If it is necessary to reserve the status quo of the parties until a court resolves the issues in dispute, an interlocutory injunction may be ordered. In granting an interlocutory injunction, the court must be satisfied that there is a serious question to be tried and that the balance of convenience is in favour of the order. 4.67 If the trespass to land is a continuing one, there is a stronger argument for the granting of an injunction. In Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464, an injunction was granted to restrain a trespass to the plaintiff’s airspace. The court held that the trespass was a

continuing one and, as the evidence pointed towards the conclusion that the defendant would not be deterred by an award of damages against it, a mandatory injunction was appropriate. [page 77] 4.68 An injunction may be refused even if a plaintiff makes out a good cause of action: Armstrong v Sheppard & Short Ltd [1959] 2 QB 384. No injunction will be granted if the trespass is past and completed: see Sherman v Condon [2014] QDC 189. A court may award damages in lieu of an injunction, if it is satisfied that the harm to the plaintiff is small and capable of being estimated in monetary terms and to grant the injunction would be oppressive to the defendant: Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287. See also Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311, an appeal against the granting of an injunction requiring the appellant to remove all cladding attached to the surface wall of its building. In granting the injunction, the trial judge had taken into account that the encroachment into the respondent’s airspace was a continuing one which interfered with their potential use of their land. Also relevant was the fact that the respondent had not delayed in taking action, that the encroachment conferred upon the appellant a commercial benefit and the appellant had made no real effort to resolve the issues nor made any reasonable offer of damages. On appeal, the appellant argued that the judge should have awarded damages in lieu of the injunction and the injunction would cause them hardship. The Victorian Court of Appeal dismissed the appeal, holding that a mandatory injunction was appropriate in the circumstances. As DoddsStreeton JA stated (at [139]): The harm posed to the [appellant] by an injunction is, as in LJP Investments, the removal of a non-structural addition which will restore the status quo. It will not require demolition of the building or result in loss of access or other major detriment, although it entails cost and a loss of

improved appearance. As [the trial judge] implicitly recognised, an injunction will not impose hardship on the [appellant] out of all proportion to the injury to the [respondent] from a refusal of such relief, and will not constitute oppression.

Mesne Profits 4.69 If the trespass consists of the defendant temporarily occupying or using the land, mesne profits may be claimed. Mesne profits are claimed from the time the wrongful possession commenced until the ejectment of the defendant. The measure of mesne profits is the value of the market rent that the trespasser should have been paying for the period of occupation: Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432; Port Stephens Shire Council v Tellamist Pty Ltd (2004) 235 LGERA 98 at [193]–[194]. In Davison (as personal plaintiff representative of the estate of Staines, decd) v Wilkinson [2006] QSC 212, the respondent was living in a unit that had been left by his ex-wife, under the terms of her will, to her five daughters as joint tenants. Notice was given to the respondent requiring him to vacate the premises but he failed to do so. The court awarded damages assessed at the rental value for the period of wrongful occupation.

Statutory Relief 4.70 There are various statutes that provide for damages or other remedies for acts of trespass to land. For example, the Supreme Courts have power to grant relief to an adjacent or encroaching owner in respect of encroachment of buildings. [page 78] Part 11 of the Property Law Act 1974 (Qld) involves a statutory code for encroachment. Under the legislation, either the encroaching or the adjoining owner may apply to the court for relief. The court may order payment of

compensation to the adjacent owner or order that there be a transfer or lease of the subject land to the encroaching owner: Property Law Act 1974 (Qld) s 185(1). The minimum compensation payable is the unimproved capital value of the subject land if the encroachment was innocent and three times that value in other cases: s 186(1). See also the Encroachment of Buildings Act 1922 (NSW); Encroachment of Buildings Act 1982 (NT); Encroachments Act 1944 (SA); Property Law Act 1969 (WA). The statutory provisions do not exclude the operation of common law principles; for example, in Bunney v South Australia (2000) 77 SASR 319, a school building encroached on a private road and the owner was awarded $900 compensation for the continuing trespass. In the Australian Capital Territory, Tasmania and Victoria, the common law applies enabling the encroached landowner to take an action in trespass to land and seek compensatory damages or an injunction.

7

Limitation Period

4.71 As the interference that forms the basis for an action in trespass to land involves property, the limitation period is six years except in the Northern Territory where it is three years: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s 14(1)(b); Limitation Act 1981 (NT) s 11(1)(b); Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act 1936 (SA) s 35; Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 12. See also Chapter 14.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 5.

H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 12.

1.

See the extensive review of cases dealing with bullets fired over land in P Butt, ‘Moot Point’ (1978) 52 ALJ 160.

[page 79]

Chapter 5 Trespass to Personal Property 1 5.1

Introduction

There are three actions that encompass trespass to personal property:

1.

trespass to chattels;

2.

conversion; and

3.

detinue.

Each action is separate and the elements of each are quite distinct. However, as they are all trespass actions, they all require a direct interference and that the defendant be at fault. 5.2 The subject matter of all of the actions is personal property. The term ‘personal property’ describes moveable property and is interchangeable with both of the words ‘goods’ and ‘chattels’. All personal property may form the subject matter of any of the trespass actions above, provided the law recognises that someone can have title to the property. 5.3 Goods which are incapable of being regarded as property cannot form the subject matter of the actions. For example, in Doodeward v Spence (1908) 6 CLR 406; 15 ALR 105, the High Court held that a corpse is not property and could not form the basis of an action in trespass. However, it has been noted that parts of a corpse might be property by virtue of dissection or preservation for the purposes of exhibition or teaching: R v Kelly [1998] 3 All ER 741. In Roblin v The Public Trustee for the Australian Capital Territory

[2015] ACTSC 100, it was held that the stored semen from a person constitutes property. Intangible property cannot be the subject of a trespass action. In Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566, it was held that the domain name, the IP addresses and the autonomous system (AS) number were intangible property and were not embodied in any chattel which could be owned or possessed by the plaintiff and therefore could not form the basis of an action in trespass to personal property. However, although money in a bank account is not personal property (Ferguson v Eakin t/as Price Brent [1997] NSWCA 106 at [9]), a cheque representing the funds may form the basis of an action: Hunter BNZ Finance Ltd v CG Maloney Pty Ltd (1989) 18 NSWLR 420. 5.4 As real property cannot form the subject of any of the trespass to personal property actions, the proper action in such instances being trespass to land. Goods that are attached [page 80] to land (fixtures) are regarded by the law as part of the land: Reid v Smith (1905) 3 CLR 656 at 667; 12 ALR 126. However, upon detachment from the land, the item becomes a chattel and may be the subject of an action in trespass: Finesky Holdings Pty Ltd v Minister for Transport for Western Australia (2002) 26 WAR 368 at [52]. 5.5 All of the torts involving trespass to personal property protect the plaintiff’s possession of goods — ownership is not required to sue: Webb v Fox (1797) 7 Term Rep 391; 101 ER 1037. Legal possession of personal property can take the following forms: actual possession — the plaintiff has the goods in their physical

control: Horsley v Phillips Fine Art Auctioneers Pty Ltd (1995) 7 BPR 14,360; constructive possession — the goods are not in the plaintiff’s physical control, but they retain control of the goods: Kent v Parer [1922] VLR 32; and right to possession — the plaintiff has a legally enforceable right to gain possession of the goods: Gatward v Alley (1940) 40 SR NSW 174. A right to possession is often an incident of ownership.

2

Trespass to Chattels

5.6 The term ‘trespass to chattels’ may be used to encompass all three of the nominate torts but it also refers, in a technical sense, to a specific nominate tort. Trespass to chattels, as a nominate tort, consists of any act of direct interference with personal property in the possession of another, without lawful justification. While it is directness that makes it a trespass in a formal sense, in practice it is the intentional nature of the interference which is significant. To establish trespass to chattels: the plaintiff must have the requisite title to sue; there must be a direct interference with goods; and the defendant must be at fault.

Title to Sue 5.7 The general statement of law in respect of title to sue in trespass to chattels is that only the person in actual or constructive possession of the goods at the time of the interference may sue: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.

5.8 There are four exceptions to the requirement of actual or constructive possession. The common feature of each of the exceptions is a notional possession by the person out of actual possession, through either possession through another in respect of whom there is an association, or where a gap in possessory title to sue might occur. In each of the four exceptions, the plaintiff may sue for trespass to chattels, although the plaintiff does not have the requisite possession: 1.

a trustee may sue for direct inference to goods in the possession of a beneficiary (Barker v Furlong [1891] 2 Ch 172);

2.

a personal representative (executor or administrator of a deceased estate) may sue for the trespass to the goods of a deceased occurring prior to the personal [page 81] representative taking actual possession (Tharpe v Stallwood (1843) 5 Man & G 760; 134 ER 766);

3.

the owner of a franchise may sue for an interference with franchise chattels which took place prior to actual possession being taken by the owner (Bailiffs of Dunwich v Sterry (1831) 1 B & Ad 831; 109 ER 995); and

4.

a person with a right to immediate possession may sue in trespass to chattels where the direct interference by a third person is to possession of a servant, agent or a bailee holding under a revocable bailment: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.

Bailment exception 5.9 The exception in (4), above, is of most practical importance. If a servant or agent is in possession of the goods, the law regards that the master

or principal is in actual possession and therefore has title to sue in trespass to chattels. If the goods are the subject of a bailment, there must be a right of possession to those goods by the plaintiff. A bailment is a delivery of goods from one person (the bailor) to another (the bailee) for some purpose upon a contract, express or implied, that, after the purpose has been fulfilled, the goods will be re-delivered to the bailor: Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220. During a bailment, the bailor parts with possession of the goods but not with ownership. For example, a bailment exists when a person leaves their goods to be fixed by another: Hollier v Rambler Motors (AMC) Ltd [1972] 2 QB 71; 1 All ER 399 (car left with mechanic to be fixed). 5.10 Under the bailment exception, a person who is not in actual or constructive possession of the goods at the time of the interference will have title to sue in trespass to chattels if: there was a revocable bailment of the goods at the time of the interference, giving the plaintiff an immediate right to possession; and the interference was by a person other than the bailee. 5.11 Revocable bailment A revocable bailment (or bailment at will) is one which allows the bailor at any time to repossess their goods: Manders v Williams (1849) 4 Exch 339; 154 ER 1242. Such a bailment will arise upon the terms of the bailment being met or the terms of the bailment being breached by the bailee: Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400. In Hill v Reglon Pty Ltd [2007] NSWCA 295 at [41], it was stated that: The general principle is that in a simple bailment, repudiation of the bailment brings the bailment to an end: The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400; [2006] NSWCA 22 per Young CJ in Eq at [63]; Palmer on Bailment, 2nd ed, (1991) Sydney, Law Book Company Ltd. Both parties accepted that a reference to an act inconsistent with or repugnant to the bailment was a reference to a repudiation of the bailment.

In that case, there was a hire agreement which allowed the respondent’s scaffolding to be hired out by the bailee. The terms of the bailment were breached when the scaffolding [page 82] was given by the bailee to another party to on-hire. Due to the breach of the terms of the bailment, the respondent had an immediate right to possession: at [84]–[85]. 5.12 Interference The interference must have been committed by a person outside of the bailment relationship. Therefore, the exception will not apply if the bailee voluntarily delivered possession to the third party (Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204) or if the interference was committed by the bailee. In Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, the plaintiff wine and spirit merchant and vigneron claimed an injunction to restrain James Elliott, a hotelkeeper operating the Central Hotel at Singleton, New South Wales, from collecting, disposing of, parting with, possessing, or in any way dealing or handling the plaintiff’s bottles or placing any other liquor in them. The plaintiff, along with 40 other bottlers, was a member of a branded bottle association that desired to protect owners of bottles who sold liquid products as the contents but not the bottles themselves. The plaintiff’s bottles were embossed with the words, ‘This bottle is the property of Penfolds Wines Ltd’ or similar wording. The invoices accompanying the bottles referred to the brand and confirmed that the company merely loaned the bottles and that when the contents were used the bottles had to be returned on demand. Penfolds alleged that Elliott had been receiving, collecting and handling its branded bottles by filling them with other alcohol. The only specific evidence before the trial judge was that Elliott filled two bottles, which had been

brought to him by his brother, with wine, and then sold the wine in the bottles to a Spencer Moon for eight shillings. The action was based on both trespass to chattels and conversion. A majority of four (Latham CJ dissenting) held there was no title to sue in trespass to chattels. In the words of Dixon J (at 224–5): In English law what amounts to an infringement upon the possessory and proprietary rights of the owner of a chattel personal is a question still governed by categories of specific wrong. Trespass was the wrong upon which reliance appeared to be placed in support of the appeal when it was opened, but, in the end, it seemed to be conceded that this cause of action was untenable. I think that it is quite clear that trespass would not lie for anything which the foregoing facts disclose. Trespass is a wrong to possession. But, on the part of the respondent, there was never any invasion of possession. At the time he filled the two bottles his brother left with him, he himself was in possession of them. If the bottles had been out of his own possession and in the possession of some other person, then to lift the bottles up against the will of that person and to fill them with the wine would have amounted to trespass. The reason is that the movement of the bottles and the use of them as receptacles are invasions of the possession of the second person. But they are things which the man possessed of the bottles may do without committing trespass. The respondent came into possession of the bottles without trespass. For his brother delivered possession to him of the two bottles specifically in question.

On the question of the bailment exception, it was stressed that it is only when a servant, agent or bailee is holding goods under a revocable bailment and those goods are the subject of a trespass by a third party that the bailor may sue: It is submitted that the correct view is that the right to possession, as a title for maintaining trespass, is merely a right in one person to sue for a trespass done to another’s possession; that

[page 83] this right exists whenever the person whose actual possession was violated held as servant, agent, or bailee under a revocable bailment for or under or on behalf of the person having the right to possession: at 227 per Dixon J.

Penfolds Wines Pty Ltd v Elliot also involved a claim in conversion: see 5.29.

5.13 See also Wilson v Lombank Ltd [1963] 1 All ER 740, where the plaintiff bought a car from someone who was not the true owner and therefore title did not pass to the plaintiff. The car needed repair so the plaintiff left it at a garage. The defendants thought that they owned the car so they came and took it away from the garage. In fact, the defendants did not own the car either. It was held that the plaintiff could succeed in an action for trespass to goods against the defendants, even though the plaintiff was not the true owner and even though the defendants subsequently had passed the car on to the true owner. The defendants argued that the plaintiff was no longer in possession of the car when they took it away, as it was then in the possession of the garage. Hinchcliffe J rejected this argument, saying (at 743): [I]n my judgment the plaintiff was in possession of the car; not only did he have the right to immediate possession, but I do not think that, in the circumstances of this case, the plaintiff ever lost possession of the car … On the view which I have formed, that the plaintiff never lost possession of the motor car, it seems to me that the defendants wrongfully took the car and that the plaintiff is entitled to recover damages.

Finders 5.14 The expression ‘finders keepers’ is to some extent true, since in the absence of the true owner, a finder does gain possessory rights over the goods. If a finder takes possession of the goods, they are under an obligation to make reasonable attempt to find the owner and to take reasonable care of the goods until returned to the owner: Parker v British Airways Board [1982] QB 1004. Therefore, a person who interferes with the actual or constructive possession of the finder may be liable in trespass to chattels, as the finder has title to sue in the tort. This is due to the fact that trespass to personal property relies on possession, not on ownership. 5.15 If the finder obtains possession during the course of employment, possession is vested in the employer and not in the finder personally: Willey v Synan (1937) 57 CLR 200. Similarly, if the finder is on someone else’s land and the chattel is attached to or under it, the occupier of the land has title to

sue, not the finder: Elwes v Brigg Gas Co (1886) 33 Ch D 562. However, if the goods are on another’s property, there must be some obvious intention on the part of the occupier to control the property and the goods upon it: Parker v British Airways Board [1982] QB 1004: see 5.38.

Effect of statutory provisions 5.16 It should be noted that statutory provisions may impinge upon an immediate right to possession. For example, s 178 of the National Credit Code (Cth) provides that goods subject of a consumer lease cannot be repossessed by the lessor unless 30 days notice has been given. Repossession without the required statutory notice is unlawful: Lawrence v Keenan (1935) 53 CLR 153. No immediate right to possession based upon non-payment [page 84] can arise until a required statutory notice is served: Henry Berry & Co Pty Ltd v Rushton [1937] St R Qd 109. 5.17 The Personal Property Securities Act 2009 (Cth) establishes the Personal Property Securities Register which allows data to be kept of security interests in personal property in all Australian jurisdictions: s 147. The Act protects purchasers of personal property where they are not aware of an existing security interest: see Pt 2.5. For example, a purchaser of a motor vehicle may search the Personal Property Securities Register for the vehicle’s serial number to ensure that there is no security interest registered: s 45. However, the search must be carried out immediately before the purchase. See also Candy v Christensen [2007] QCA 114, where the appellant alleged that a swamp wallaby had been removed from his possession by Queensland Parks and Wildlife officers and claimed in trespass. The Court of Appeal held that, under the Nature Conservation Act 1992 (Qld), the wallaby was the

property of the state as it was a protected animal and, at the time it was seized, the appellant did not hold a permit to keep the wallaby pursuant to the Act. It was held that the appellant had no right to possession of the wallaby and the claim for damages for its removal failed.

Direct Interference 5.18 As the action is a trespass, the defendant’s act must be direct and not merely consequential: see Chapter 2. Therefore, in Hutchins v Maughan [1947] VR 131, it was not a trespass when the plaintiff’s dog died after eating poisoned baits laid by the defendant as the interference with the dog was consequential not direct. See also Rural Export & Trading (WA) Pty Ltd v Hahnheuser (2007) 243 ALR 356 at [72]. It is not essential that the defendant’s act consist of bodily contact with the chattel; it is sufficient if the defendant brings some material object into contact with the plaintiff’s chattel, for example, driving a motor vehicle into the goods or hitting the goods with some object which is thrown. If goods are capable of moving of their own volition (for example, cattle), it will be trespass if they are chased away by acts intended to move them, even without any physical contact, for example, by the use of noise. 5.19 The gist of the action of trespass to chattels is a wrong against possession: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204. In Penfolds Wines Pty Ltd v Elliott, Latham CJ and Dixon J provided examples as to what types of interference may amount to a trespass: at 214 and 229.

Taking or asportation of a chattel 5.20 In Kirk v Gregory (1876) 1 Ex D 55, the defendant was liable in trespass for moving goods from one room of the house to another. The defendant had moved the goods for safekeeping but they could not later be found. As the defendant was not liable for the disappearance of the goods,

only nominal damages were awarded. See also Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153, discussed at 5.40. [page 85]

Handling of chattels without authority 5.21 In Vine v Waltham Forest London Borough Council [2000] 4 All ER 169, the court held that the ‘act of clamping the appellant’s car was a clear trespass, to which the respondents had no defence unless they could establish that the appellant had consented to her car being clamped or alternatively had voluntarily assumed the risk of her car being clamped’: at 173. In Slaveski v Victoria [2010] VSC 441, it was held that the handling of documents and moving them within the premises was an actionable trespass. 5.22 It would appear that to be an actionable trespass there must be more than a mere touching of the chattel, even though prima facie this would be a direct interference: Wilson v Marshall [1982] Tas R 287 at 299–300. This may be explained by the fact that if there is no damage by the touching, an action in trespass would be trivial or vexatious.

Unauthorised use of chattels 5.23 Without an intention to deprive the plaintiff of possession, which would be a conversion, the unauthorised use of chattels will amount to a trespass. Latham CJ in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 214 stated: … unauthorised acts of riding a horse, driving a motor car, using a bottle, are all equally trespasses, even though the horse may be returned unharmed or the motor car un-wrecked or the bottle unbroken. The normal use of a bottle is as a container, and the use of it for this purpose is a trespass if, as in this case, it is not authorised by a person in possession or entitled to immediate possession.

See, for example, Schemmell v Pomeroy (1989) 50 SASR 450, where two 14-

year-old boys took a car joyriding and it was held to be a trespass as there was a direct interference with the vehicle through its unauthorised use.

Fault 5.24 The act giving rise to the trespass must have resulted from the defendant’s fault, that is, the interference with the goods was intentional or negligent: see Chapter 2. 5.25 An interference may amount to trespass even if the defendant is unaware of infringing another’s possession of the chattels. In National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861, the defendant cut the plaintiff’s underground electricity cable and the plaintiff sued in trespass. The court held that the act did not constitute trespass as the defendant had not intentionally severed the cable, nor had it been negligent as the defendant neither knew, nor ought to have known, of the presence of the cable. Lack of fault may be raised as the defence of inevitable accident: see 6.2. 5.26 The defendant interfering with the goods under the mistaken belief that they are entitled to the goods is not sufficient to avoid liability as mistake is not a defence to trespass: see 6.64. [page 86]

Actionable Without Proof of Damage 5.27 All trespass actions are actionable per se and logically and for practical reasons, it would be desirable for trespass to chattels to conform to the same rule (as suggested in William Leitch & Co v Leydon [1931] AC 90 and in certain dicta in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204). However, there have been suggestions to the contrary as early as 1730: Slater v Swann (1730) 2 Stra 872; 93 ER 906.

5.28 For example, in Wilson v Marshall [1982] Tas R 287, the Tasmanian Supreme Court held that no trespass was committed by a police officer using a piece of wire to unlock a car door. In the New Zealand decision of Everitt v Martin [1953] NZLR 298, it was noted that a plaintiff’s interest in chattels is not considered by the law as paramount as a plaintiff’s bodily integrity or their possession of land, suggesting a need to prove damage to chattels in trespass. It was held that a negligent trespass resulting in no damage to the goods was not trespass. However, there is no Australian authority for this proposition: see 5.77.

3

Conversion

5.29 The modern action for conversion derived from trover (from the French trouver, meaning ‘to find’), which entailed fictional allegations that the plaintiff had possessed goods, that they had been lost and the defendant found them; that a demand for their return had been refused; and that the defendant had converted them to personal use. It is the final element that is important in the modern tort of conversion — a dealing with goods in a way that expressly or impliedly denies the plaintiff’s right to possession. To establish an action in conversion there must be: title to sue; a direct interference with the goods that amounts to a repugnant dealing; and fault of the defendant.

Title to Sue 5.30 To sue in conversion, the plaintiff must have an immediate right to possession or be in actual or constructive possession of the goods at the time of the interference: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.

In commercial dealings, the terms of the contract will often determine the interest of the parties in the subject matter of the contract. In Management 3 Group Pty Ltd (in liq) v Lenny’s Commercial Kitchen’s Pty Ltd (2011) 281 ALR 482, the appellant entered into a purchase agreement with the respondent for the supply of kitchen goods, on the terms that the respondent would retain title to the goods unless it received full payment by the due date. The goods were delivered to the development site in locked containers to which only the respondent had access. The appellant went into voluntary administration and failed to pay the balance owing on the goods by the due date. After that date the client of the appellant, for which the goods were intended, paid the respondent the balance owing and took possession of the goods. The appellant sued its liquidators, client and the respondent in conversion. The court held that by retaining the keys to the containers with [page 87] the goods, the respondent remained in possession and as the appellant had not paid for the goods in full by the required date, the respondent had an immediate right to possession. Therefore, at the time of the interference, the appellant did not have the requisite title to sue in conversion. 5.31 Ownership without some form of possession at the time of the interference is not sufficient: Wertheim v Cheel (1885) 11 VLR 107. For example, a drawer of a bearer cheque remains the true owner and entitled to immediate possession if it does not reach the payee’s hands: Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41. However, once the cheque reaches the person authorised to receive it, any action in conversion will be by the payee. 5.32 In respect of goods and equipment of a company, in Burnett v Randwick City Council [2006] NSWCA 196, the court held that a person in

charge of a company’s equipment and business does not have sufficient possession of the goods to give them title to sue. It was stated (at [96]): It is a truism to say that a company can only act through its officers and agents. An officer may well carry on the company’s business and his or her decisions may control the manner in which the company’s property is held, used, acquired or disposed of. However, this does not vest in that officer … with such control and dominion over the property of the company as to change the physical custody of that property from the possession of the company to the possession of the officer in the sense that the officer then has the immediate right of possession of, or the possessory title to, the company’s property entitling him or her to sue for trespass or conversion in his or her own name.

Bailees and bailors 5.33 As an immediate right to possession is sufficient for title to sue in conversion, a bailor of goods may have title to sue. As this is not an exception to title to sue as it is for trespass to chattels (see 5.9), the interference with the bailed goods need not be by a third party to be actionable as a conversion. If a bailee converts the bailor’s property, that act may give the bailor an immediate right to possession if the act is wholly repugnant to the bailment and will entitle the bailor to sue the bailee in conversion: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204. See also Nominal Defendant v Andrews (1969) 121 CLR 562 and Nominal Defendant v Morgan Cars Pty Ltd (1974) 131 CLR 22, which indicate that a term in an agreement, where a breach would result in the termination of that agreement, might not be conclusive in establishing the requisite title to sue: compare Union Transport Finance Ltd v British Car Auctions Ltd [1978] 2 All ER 385. 5.34 Special rules apply in actions between bailor and bailee. A bailee is estopped from disputing the bailor’s title except if: the bailee defends the action on behalf of, and by the authority of, the true owner; or the acts of conversion complained of were committed under the authority of the true owner; or satisfaction to the true owner has been made by return of the property.

In Perpetual Trustees & National Executors of Tasmania Ltd v Perkins (1989) Aust Torts Reports ¶80-295, sisters inherited portraits of their greatgrandmother and great-grandfather [page 88] from their parents. They passed the portraits to a brother, Bill Perkins, on ‘long loan’, that is, under a bailment revocable at their will as bailors. Bill Perkins then passed them on to another brother. When that brother died, his widow and son disposed of the portraits by sale to the Art Gallery of South Australia. One of the sisters, who was an executor of the other sister’s estate, demanded the return of the portraits from the defendant gallery and, when the gallery refused, they sued in conversion. The Full Court of the Supreme Court of Tasmania held that the gallery was guilty of conversion, as the bailors’ title to the portraits was better than the defendant’s title. Green CJ (with whom Wright J agreed on this point) said (at 69,203): In my view, the only conclusion reasonably open on the evidence is that Bill Perkins received possession of the portraits from the sisters upon the understanding that he would keep them and return them according to their directions. In my opinion such a transaction has all the essential characteristics of a gratuitous bailment … As this was a gratuitous bailment revocable at will the transfer of possession by the sisters to Bill Perkins did not have the effect of extinguishing their possessory title … The [defendants] were not able to impeach that title by showing that they had a superior right to possession and they may not rely upon any rights arising from their possession of the portraits which they derived from Bill Perkins …

5.35 It is possible in some cases for both the bailor at will, having an immediate right to possession, and the bailee, being in possession, to have title to sue where a third party interferes with the bailee’s possession of the goods. In such cases, the party with the better title would be the appropriate plaintiff.

Co-owners

5.36 If the converted goods are co-owned as either joint tenants or tenants in common, usually all co-owners must be joined as plaintiffs. An interference with the jointly owned goods by one co-owner will not give rise to an action in conversion by the others unless the goods are destroyed or there is a complete extinction of possessory rights. In Parr v Ash (1876) SCR (NSW) 352 at 355, it was stated: … where one joint or part owner of chattel property seized the joint property, and deprived the other owner or owners of the use and possession of it, no action will lie except where the property was sold in market overt or where it was destroyed so that the part owner could not recover his share.

Occupiers of land 5.37 An occupier of land is regarded as the possessor of chattels attached to or under the land, even if they are not aware of the existence of the chattels: Elwes v Brigg Gas Co (1886) 33 Ch D 562; see Chairman, National Crime Authority v Flack (1998) 156 ALR 501, where it was held that the possession in law of residential premises was sufficient to establish the requisite intention to possess all chattels on the premises. In that case, the respondent asked that a briefcase containing $433,000 taken by the appellant during a search of her premises, even though she was not its owner and had not seen it before it was discovered during the search. [page 89]

Finders 5.38 As noted in 5.14, a finder of goods obtains possessory rights against all except the true owner and, in certain circumstances, their employer or the occupier of the land. If the finder entrusts the goods to another pending an (unsuccessful) attempt to locate the true owner, they will have sufficient interest to sue the person entrusted with the goods when such person refuses

to return them to the finder. In Armory v Delamirie (1722) 1 Stra 505; 93 ER 664, the court held that the plaintiff, as finder, had acquired possessory title in the jewel that had not been impaired by the temporary possession of the jeweller. In Parker v British Airways Board [1982] QB 1004, the English Court of Appeal upheld the verdict of conversion in favour of the plaintiff finder. The plaintiff, in taking the chattel into his care and control, acquired rights of possession except against the true owner. These rights of possession could only be displaced if the defendant, as occupier, could show an obvious intention to exercise control over the area and the goods before the plaintiff found the goods.

Repugnant Dealing 5.39 The tort of conversion encompasses a wide range of direct interferences, but, as Dixon J stated in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 229, ‘the essence of conversion is a dealing with a chattel in a manner repugnant to the immediate right of possession of the person who has property or special property in the chattel’. In Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 at [124], Allsop P observed: The framing of a precise definition of the tort of conversion has been described as “well nigh impossible”: Lord Nicholls of Birkenhead in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883 at 1084 [39]; and see also Hiort v London & North Western Railway Co (1879) 4 Ex D 188 at 194 per Bramwell LJ. The essential elements, or basic features, involve an intentional act or dealing with goods inconsistent with or repugnant to the rights of the owner, including possession and any right to possession. Such an act or dealing will amount to such an infringement of the possessory or proprietary rights of the owner if it is an intended act of dominion or assertion of rights over the goods: see generally Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 217–220 (per Latham CJ), 228–230 (per Dixon J, with whose statements of principle Starke J agreed at 221), 234–235 (per McTiernan J), and 239–244 (per Williams J); and Kuwait Airways at 1084 [39]–[42] (per Lord Nicholls of Birkenhead), 1104 [119] (per Lord Steyn) and 1106 [129] (per Lord Hoffmann).

The defendant need not be in physical possession of the goods, they merely have to have dealt with the goods: Hiort v Bott (1847) LR 9 Ex 86.

See also Maynegrain Pty Ltd v Compafina Bank [1984] 1 NSWLR 258 at 264. 5.40 In contrast to trespass to chattels, conversion requires an intention on the part of the defendant to assert rights in respect of the goods, interfering with the plaintiff’s immediate right of possession: Oakley v Lyster [1931] 1 KB 148 at 150; Lancashire Railway Co v MacNicoll (1919) 88 LJKB 601. Therefore, a dealing with goods without the intention to exercise dominion over the goods cannot amount to a repugnant dealing, instead an action in trespass to chattels may lie. For example, in Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153, the plaintiff took two of his horses onto the defendant’s ferry and paid for [page 90] their carriage. There was an altercation between the plaintiff and defendant in which the defendant said he would not carry the horses and requested that the plaintiff remove them. The plaintiff refused. The defendant then took the horses ashore himself and left them where they subsequently ran loose on the road. The plaintiff remained on the ferry, took the journey and later recovered his horses. As there was no intention to exercise dominion over the chattels (the horses), there was no conversion, merely trespass to chattels. Similarly, in Schemmell v Pomeroy (1989) 50 SASR 450, the illegal taking of a motor vehicle was treated as trespass rather than conversion. In some circumstances, such an intention may be imputed to the tortfeasor: Moorgate Mercantile Co Ltd v Finch & Read [1962] 1 QB 701.

Wrongful destruction or alteration 5.41 A person commits conversion if, without lawful justification, there is wilful destruction or alteration of a chattel belonging to another, for example

a miller grinding another’s corn to make flour: Hollins v Fowler (1875) LR 7 HL 757.

Wrongful taking 5.42 It is conversion if a chattel is taken out of the possession of another with intent to exercise a permanent or temporary dominion over it: Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584. In Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883; 3 All ER 209, 10 aircraft belonging to the plaintiff were taken from Kuwait by invading Iraqi forces. The aircraft were then incorporated into the defendant’s fleet, four later being destroyed by Allied bombs. The remaining six aircraft were sent to Iraq until their eventual return to the plaintiff. The plaintiff sued in conversion to recover for the loss of use of the aircraft and the US$20 million it had to pay Iran for the planes’ safekeeping. Due to the application of state immunity for the period in which the planes were actually taken, the plaintiff had to rely on the defendant’s acts of registering and insuring the aircraft, repainting them and occasionally flying them as the acts of conversion. The defendant argued that as it had not disposed of or destroyed the planes, or interfered with the plaintiff’s possessory rights in any other way, there was no conversion. The House of Lords held that the acts of the defendant were more than mere use or minor interferences and amounted to an assertion of rights inconsistent with the plaintiff’s rights as owner. Despite the defendant’s assertions, there was a clear indication that it would resist any claim by the plaintiff to exercise its rights. 5.43 Where possession of goods is thrust upon a person without consent (an involuntary bailee), the person has merely received them and not taken them. In such circumstances, there is no conversion and no need to take any active steps to return them. However, it may be a conversion if the innocent receiver then converts them to his or her own use. This is one of the most difficult areas for the courts since they must exercise their discretion in

determining whether, as a matter of degree, there has or has not been an intention to exercise the necessary dominion. [page 91]

Wrongful delivery 5.44 If a person who has obtained possession of a chattel lawfully transfers the custody of the chattel to a person who has no authority to receive them, a conversion may be committed. For example, in Glass v Hollander (1935) 35 SR (NSW) 304, Mrs Gibson had hired goods under a hire–purchase agreement from the plaintiff. The agreement required her to keep the goods at the nominated address and to not sell or part with possession without the plaintiff’s written consent. There was also the usual hire–purchase clause giving the owner the right to repossess the goods upon failure of prompt payment of instalments or breach of any other term of the agreement. Mrs Gibson was in arrears of her payments when she sold the goods to the defendant (in breach of the hire–purchase agreement). The goods were delivered to the defendant’s employee who stored the goods until they were sold at auction. The New South Wales Full Court held there was a conversion. The plaintiff had an immediate right to possession because of the breaches of the hire–purchase agreement by Mrs Gibson. The taking of possession and delivery for auction of the goods amounted to acts of conversion. See also Hill v Reglon Pty Ltd [2007] NSWCA 295. 5.45 Even if the delivery is innocent, there will be a conversion, for example if an auctioneer, on the instructions of the apparent owner and possessor of the goods, sells and delivers the chattel to a purchaser: Consolidated Co v Curtis & Son [1892] 1 QB 495. However, a mere agreement to sell, without delivery, is not conversion: Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700.

5.46 If a bailee re-delivers goods to the person from whom they were obtained, there is no conversion if the bailee was ignorant of the plaintiff’s claim: Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2 QB 205. This is not the case if there is knowledge of the plaintiff’s claim: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204. There will be no conversion if the bailee re-delivers the goods to a person reasonably believed to be the agent of the sender (Elvin & Powell Ltd v Plummer Roddis Ltd (1933) 50 TLR 158), unless the bailee does more, for example endorses the delivery: Hiort v Bott (1874) LR 9 Ex 86. 5.47 If the defendant has possession of the goods as an involuntary bailee (for example, as the finder of goods), there is no conversion if they misdeliver the goods to a person whom they reasonably believe entitled to possession: James v Oxley (1939) 61 CLR 433 at 447.

Wrongful detention 5.48 Wrongful detention of goods is a form of repugnant dealing which overlaps with the tort of detinue: Baldwin v Cole (1704) 6 Mod Rep 212; 87 ER 964. Mere possession or detention of goods without permission is not a conversion: Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports ¶81-244 at 62,520. To amount to a repugnant dealing, the defendant must be shown to have intended to retain the chattel in defiance of the plaintiff. This intention is usually shown by demand and refusal: Oakley v Lyster [1931] 1 KB 148. Possessing goods without consent is not equivalent to a demand to return: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 at [135]. [page 92]

In Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd, the plaintiff leased three machines to the defendant. A provisional liquidator was appointed to the defendant company, an event which constituted default by the defendant of the lease, entitling the plaintiff to repossess its machines or to demand their return within 10 days. The plaintiff did not do either of these things until after the liquidator had refused to pay arrears of rent and had refused to permit the plaintiff to collect the machines, claiming they were frozen by the liquidation. The plaintiff then terminated the lease formally and demanded the return of the machines. The plaintiff and the liquidator negotiated the amounts owing under the lease, but negotiations were not concluded. The liquidator did not return the machines. The plaintiff sued the defendant and the liquidator, alleging conversion. The Supreme Court of New South Wales held that there had been conversion from the date of the formal termination of the lease. Young J said (at 62,520–1): The cases show that the mere detention by A of B’s goods will not necessarily amount to conversion nor will the mere handling of them. But once the degree of use amounts to employing the goods as if they were one’s own then a conversion is established. It seems to me then that immediately after [the date of formal termination] the position was that the defendant’s lease of the goods had been determined and the defendant’s right to possession of the goods had ceased. The plaintiff had the right to possession of the goods. The plaintiff had clearly manifested to the defendant that it wished to have the goods. The defendant did nothing to change its attitude that the goods were frozen by virtue of the provisional liquidation and that the plaintiff should do nothing to attempt to regain them … It would seem to me that at the very least on [the date negotiations broke down] there was a conversion of the plaintiff’s goods because the defendant was treating the goods as if they were its own. There had been a demand for the goods … there was clear indication by the plaintiff that it wanted its goods returned and a demand followed by a refusal to restore goods usually amounts to a conversion itself.

5.49 A provisional refusal is justifiable where there is doubt concerning the plaintiff’s title to possession, but it is not justifiable if there is no doubt, as illustrated by Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd where Young J held (at 62,520): If one reads the standard torts textbooks too quickly, one might get the impression that it is always a defence for the holder to retain the goods for a reasonable time in order to investigate

the validity of the plaintiff’s claim. This is too wide a proposition … The “reasonable time to investigate” rule usually has no application at all where there is no doubt of the plaintiff’s title to the goods. If a person knowing that goods are the goods of someone else retains them, it is completely irrelevant that a person who did not have that knowledge might reasonably have taken a little time to establish whose goods they were.

Since the defendant knew that the goods belonged to the plaintiff, the defence of provisional refusal was not available. In Sadcas Pty Ltd v Business and Professional Finance Pty Ltd [2011] NSWCA 267, the court held there was no conversion when the appellant retained the respondent’s goods when negotiations to purchase the goods were commenced. By negotiating to purchase, the appellant was recognising the respondent’s rights to the goods, not denying them. See also Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420 at [120], where the court held that a ‘demand for return, or making available for collection, goods of a [page 93] description not capable of being identified is not one with which the failure to comply, of itself, evidences conversion’. In that case the appellant was lawfully in possession of some of the respondent’s goods which were identical to the goods it was not lawfully in possession of.

Wrongful use 5.50 Any unjustified use of goods will amount to a conversion, provided there is an intention to exercise the appropriate dominion over them: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 218, 234, 242. Wrongful use without destruction or alteration requires an assessment by the court of the extent of repugnancy demonstrated by the use. The ‘joyride’ cases involving theft of a motor vehicle are illustrative of such use, although not necessarily consistent in approach and outcome. In Schemmell v Pomeroy

(1989) 50 SASR 450, the court held that the taking of a motor vehicle for a ‘joyride’, although clearly amounting to a trespass to goods, was not conversion as there was no intention to harm, abandon or not return it. However, the New Zealand court in Aitken Agencies Ltd v Richardson [1967] NZLR 65 suggested that the mere taking of a vehicle was itself a positive and wrongful act which amounted to a dealing with the goods in a manner inconsistent with the owner’s rights and an intentional assertion of a right inconsistent with the rights of the owner. 5.51 In Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, four members of the High Court either found or assumed that conversion of the two branded bottles had taken place. Latham CJ held that the same acts that determined the bailment and gave Penfolds the immediate right to possession and, therefore, title to sue, also amounted to repugnant dealings amounting to conversion. His Honour stated (at 219): In the present case there was not, in my opinion, a mere removal of the bottles received from the defendant’s brother independently of any claim over them in favour of the defendant or anyone else. There was a handling of the bottles, an actual use of them, for the purposes of the defendant’s trade — for containing and disposing of the defendant’s wine and for the use of the defendant’s customer, his brother. Such dealing with the bottles, under a claim of right so to deal with them (a claim in which the defendant still persists) was inconsistent with the dominion of the owner of the bottles and was a conversion.

Starke J (at 221) and McTiernan J (at 232) were content to assume that the evidence supported a conversion of two of the bottles. Williams J found positively that there had been a conversion. He said (at 243–4): The use which the defendant made of the bottles with knowledge of the plaintiff’s title was, in the words of Blackburn J, … “an interference with the property which would not, as against the true owner, be justified, or at least excused, in one who came lawfully into possession of the goods” [Hollins v Fowler (1875) LR 7 QB 616 at 766]. He was, in the words of Brett J (at 784), “using the goods with the intent to exercise an act of ownership on his own behalf or of someone (that is, his brother) other than the plaintiff”.

Dixon J, alone, found there was no conversion (at 229): There is nothing in the course followed by the respondent in supplying wine to his customers

who brought bottles to receive it involving any deprival or impairment of property in the bottles,

[page 94] that is of the immediate right to possession. The redelivery of the bottles to the persons who left them could not amount to a conversion: see per Bingham J in Union Credit Bank Ltd v Mersey Docks and Harbour Board [1899] 2 QB 205 at 215–16. The redelivery could not amount to a conversion because, though involving a transfer of possession, its purpose was not to confer any right over the property in the bottles, but merely to return or restore them to the person who had left them there to be filled. Indeed if they had been withheld from that person, he could have complained, at least theoretically, of an actionable wrong, that is unless it were done as a result of the intervention of the true owners and upon their demand. To fill the bottles with wine at the request of the person who brought them could not in itself be a conversion. It was not a use of the bottles involving any exercise of dominion over them, however transitory. There was, of course, no asportation and the older cases to the effect that an asportation of chattels for the use of the person taking them, or of a third person, may amount to a conversion can have no application. In any event, an intention cannot be imputed to the respondent of taking to himself the property in the bottles or of depriving the appellants thereof or of asserting any title therein or of denying that of the appellants. It was not an act derogating from the proprietary right of the appellant. There was no user on the footing that the respondent was owner or that the appellants had no title, in short no act of ownership.

The essential elements of liability in trover are lacking. 5.52 In Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420, the respondent sued in conversion alleging that the appellant had detained and used its pallets, characterising the acts as acts of dominion over the pallets, repugnant to the respondent’s rights as owner. The evidence was goods would be delivered to the appellant in the respondent’s pallets. The respondent and supplier of the goods were in a contractual relationship where the pallets were hired out and until the pallets were returned to the respondent, the supplier remained liable for the hire charge. Therefore, the pallets were in the appellant’s possession as part of usual commercial practice — stock would be delivered to the appellant in the pallets and the pallets could be used to store the goods until required or used to display the goods

for sale. The appellant also used the respondent’s pallets to deliver imported goods from the distribution centres to the stores. The court held that using the respondent’s pallets to display goods for sale, to store goods not immediately needed and/or transporting surplus stock still on the pallets were not acts repugnant to the respondent’s rights of ownership or possession. However, palletising and delivering imported goods to stores was an act which could be characterised as ‘an act of dominion or right to use the goods as one’s own’: at [161]. Once the pallets were unloaded, any use thereafter ceased to be mere possession; the use was for the appellant’s own use. See also Gwinnett v Day [2012] SASC 43, where the taking of cattle by one co-owner was held not to be a conversion as the partnership was in the process of being dissolved and there was no evidence that those particular cattle had to be returned to the other co-owner.

Wrongful disposition (sale and delivery) 5.53 If, without lawful justification, a person deprives another of goods by giving a third party lawful title to them, there will be a conversion: Douglas Valley Finance Co Ltd v S Hughes (Hirers) Ltd [1969] 1 QB 738. The plaintiff would be entitled to sue both the vendor and purchaser of the goods: Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890. [page 95] This is because conversion is proven upon there being an intention to affect the title of the goods through wrongful interference. Therefore, a purchaser will be liable in conversion even if acting in good faith in ignorance of the rights of the true owner: Hollins v Fowler (1875) LR 7 HL 757; Oakley v Lyster [1931] 1 KB 148; R H Willis & Son v British Car Auctions Ltd [1978] 2 All ER 392; Rosecell Pty Ltd v JP Haines Plumbing Pty Ltd [2015] NSWSC 1238 at [40]. The vendor will have converted the goods even if they never had

possession but merely dealt with the title of the goods: Motor Dealers Credit Corporation Ltd v Overland (Sydney) Ltd (1931) 31 SR (NSW) 516. Some legislation protects a purchaser of good faith in certain circumstances: see, for example, Sale of Goods Act 1954 (ACT) s 29(2); Sale of Goods Act 1923 (NSW) s 28(2); Sale of Goods Act 1954 (NT) s 28(2); Sale of Goods Act 1896 (Qld) s 27(2); Sale of Goods Act 1895 (SA) s 25(2); Sale of Goods Act 1896 (Tas) s 30(2); Goods Act 1958 (Vic) s 31; Sale of Goods Act 1895 (WA) s 25(2).

Representations of possession 5.54 If a person falsely represents that goods are in their possession and the plaintiff has acted on that representation to his or her loss, the representor may be guilty of conversion and will be estopped in an action for conversion from alleging that dominion had, in fact, never been exercised over the goods: Seton Laing & Co v Lafone (1887) 19 QBD 68. See also the form of estoppel in Eastern Distributors Ltd v Goldring [1957] 2 QB 600 and Moorgate Mercantile Co Ltd v Twitchings [1977] AC 890.

Fault 5.55 Trespass actions require that the defendant be at fault, and in proving conversion there must be evidence of an intention on the part of the defendant to exercise dominion over the plaintiff’s goods. Therefore, when proving fault of the defendant in conversion, negligence will not suffice — there must be evidence of an intentional act committed by the defendant. Intention is assessed in relation to the intent to commit the act and requires no wrongful motive. As such, even an innocent dealing with goods may amount to conversion: Consolidated Co v Curtis & Son [1892] 1 QB 495. In Hollins v Fowler (1875) LR 7 HL 757 at 790, it was stated: The foundation for the action of conversion rests neither in the knowledge nor the intent of the defendant. It rests upon the unwarranted interference by the defendant with the dominion over the property of the plaintiff from which injury to the latter results. Therefore neither good nor

bad faith, neither care nor negligence, neither knowledge nor ignorance, are the gist of the action.

4

Detinue

5.56 The trespass action of detinue involves the wrongful detention of goods and is usually characterised by a demand for the return of the goods and a refusal to comply. In the United Kingdom, detinue has been abolished under the Torts (Interference with Goods) Act 1977 (UK) and such interferences are absorbed into the action of conversion. However, in Australia, detinue continues to be a separate tort from conversion: Banks v Ferrari [2000] NSWSC 874 at [62]. [page 96] 5.57 The action of detinue has the following advantages over the other trespass to personal property actions: Detinue is the only action in which the court may order that the defendant return the goods to the plaintiff in appropriate circumstances. In trespass to chattels and conversion, a plaintiff can only recover damages. In fact, for conversion, the effect of a successful judgment in favour of the plaintiff is to transfer title to the converted goods to the defendant. In trespass and conversion, damages are usually assessed at the date of interference, whereas in detinue, damages for detinue are generally based upon the value of the goods at the date of judgment. If the value has increased after the interference, as is usually the case through inflation, detinue would be the preferable form of action. Detinue may lie in some circumstances where conversion does not, due to a lack of intention to exercise dominion over the goods, for

example, where a bailee is unable to restore a chattel bailed owing to negligent loss of it: Reeve v Palmer (1858) 28 LJCP 168; 141 ER 33; Thomas v High (1960) SR (NSW) 401 at 407. 5.58

To establish an action in detinue:

the plaintiff must have title to sue; there must be a detention of the goods; and the defendant must be at fault. Detinue is a continuing cause of action, commencing at the date of the wrongful refusal to return the goods and continuing until either the goods are delivered to the plaintiff or until judgment.

Title to Sue 5.59 To have title to sue in detinue, a plaintiff must establish that they had an immediate right to possession or actual or constructive possession of the chattels at the time of the defendant’s refusal to return the chattels: Russell v Wilson (1923) 33 CLR 538; City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477. In Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222, the plaintiff brought an action in detinue when the defendant refused to return her car to her. The car had been towed by a towing company to the defendant’s premises at the suggestion of the towing company after an accident. When the plaintiff’s insurer arranged for the car to be towed to the chosen repairer, the defendant refused to release the car until outstanding payments (towing charges and storage fees) were resolved. The defendant argued that the plaintiff had no immediate right to possession of the car as there was a contract of bailment. The court held that there ‘was no objective basis for concluding that the object of delivering the cars to the defendant’s premises was to secure its services as repairer, or indeed to enter into a contract of bailment for reward’: at [52]. As the plaintiff had dealt with the

towing company and not the defendant, there was no agreement that would allow the defendant to retain the car. Therefore, when the formal demand was made for the return of the car, the plaintiff did have an immediate right to possession. [page 97] As in trespass to chattels and conversion, a finder of goods may have title to sue in detinue: see 5.14 and 5.38.

Detention of Goods 5.60 The action in detinue is based upon wrongful detention (Banks v Ferrari [2000] NSWSC 874 at [62]); therefore, the defendant must have had the goods in their possession at some time, though they need not be in possession at the actual time the demand for their return is made: John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157. 5.61 Merely being in possession of another’s chattels without permission is not a tort if there is no intention of keeping the goods in defiance of the owner’s rights: Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420. However, if the goods are held under an involuntary bailment, the bailee is under a duty to safeguard the goods. In Papathanasopoulos v Vacopoulos [2007] NSWSC 502, the respondent sued in detinue to recover an engagement ring or its value ($15,250) from the appellant, his former fiancée. It was held that, after the engagement ended, the appellant became a bailee and she had no right to dispose of the ring (her father had thrown the ring away on the daughter’s instructions to remove all mementos of her relationship with the respondent). Judgment was given for the value of the engagement ring. In Rolfe v Investec Bank (Aust) Ltd [2014] VSCA 38, the appellant argued that the respondent was the bailee of the contents of locked

containers (three rare Porsches) that were on the land that the respondent bought from the appellant. It was later discovered that the containers had been removed at some stage after the respondent had taken possession of the land. The court held that: … even in cases where permission to leave chattels on land for the time being amounts to bailment, the better view is that a gratuitous bailee of goods sealed in a container is not liable for the goods as opposed to the container unless the bailee is apprised of the nature and value of the goods (Moukataff v British Overseas Airways Corporation [1967] 1 Lloyds Rep 396 at 415–416) or unless the goods are of a character, value and quantity likely to be found in a normal situation of the kind in question: at [62].

Demand and refusal 5.62 The detention of goods is evidenced by a demand and refusal. The plaintiff must show that a demand for the return of the chattel has been made and that the demand has been refused by the party in possession: John F Goulding Pty Ltd v Victorian Railway Commissioners (1932) 48 CLR 157. 5.63 Demand The demand must be specific; however, the demand will be construed with reference to the understanding of a reasonable person in the position of the defendant: Grant v YYH Holdings Pty Ltd [2012] NSWCA 360 at [90]. A demand which is insufficient for detinue may be sufficient when refusal amounts to evidence of conversion. If it is made in general terms (for example, failing to indicate a time and place for delivery), it would be difficult to prove refusal if the defendant did nothing in response. [page 98] In Lloyd v Osborne (1899) 20 LR (NSW) 190, the plaintiff owned some sheep which the defendant came into possession of. The plaintiff consulted her solicitors who wrote to the defendant in the following terms:

Dear Sir — I am instructed by Mrs Catherine Lloyd, of Jugiong, to demand that you will at once deliver to her or her agent all sheep branded F or FG (tar brand) which you unlawfully withhold from her …

The plaintiff sued when there was no response from the defendant. The plaintiff argued there had been sufficient demand and taking no notice of it was equivalent to refusal. The Full Court held the demand was not sufficient. It did not say where they were to be delivered or who the agent was. It would have been sufficient if the letter had said, ‘You must deliver the sheep to the bearer of this letter’ and the bearer had personally demanded the sheep. In Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Reports ¶81-244, the plaintiff’s formal demand for return of machines did not stipulate where or how the plaintiff required its possession of the machines to be returned. After negotiations between the defendant liquidator and the plaintiff broke down, the defendant would have allowed the machines to be collected by the plaintiff, who knew where they were. The court held that the plaintiff’s claim in detinue failed because the plaintiff’s demand did not state where the machines were to be delivered and to whom, and because the plaintiff knew where the machines were and would have been able to repossess them without interference. However, the claim in conversion was successful. 5.64 A demand for return may be conditional, but upon becoming unconditional it may satisfy the requirements of detinue. In Bunnings Group Ltd v CHEP Australia Ltd (2011) 82 NSWLR 420, the communication between the appellant and respondent made it clear that if the appellant did not enter into a hire agreement in respect of the respondent’s goods by a specified date, the goods were to be returned. The Court of Appeal held that it was not until negotiation between the parties ended that there was an operative demand for the return of the goods: at [97]. 5.65 In Crowther v Australian Guarantee Corporation Ltd (1985) Aust Torts Reports ¶80-709, it was suggested that if the defendant has clearly

demonstrated an intention not to return the goods, then a demand may not be required. It was stated (at 69,102): It is not an immutable rule that there must be a demand for and a refusal of the return of the goods, before an action in detinue or conversion will lie. A man may demonstrate that he intends not to deliver up the goods come what may. If that intent is proved, absence of demand will not defeat the plaintiff’s claim.

5.66 Refusal The refusal to return the goods must be unqualified and unreasonable. If the defendant merely requests time to consider the claim made in the demand, reasonable time to confirm the authenticity of the claimant’s rights is recognised since handing them over to a wrongful claimant may render the person liable in conversion to the true owner. 5.67 A defendant may not be able to rely on inaction in an attempt to argue that there was no refusal. In Lloyd v Osborne (1899) 20 LR (NSW) 190, it was observed that [page 99] in some circumstances taking no notice of a sufficient demand may be equivalent to a refusal. 5.68 If the defendant no longer has possession of the goods and, therefore, cannot comply with the demand for the return of the goods, an action in detinue may still lie. For example, in John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157, the loss of the goods by the defendant was unintentional but the refusal to deliver them was intentional, in the sense that it was a deliberate and conscious refusal. The defendant had no choice but to refuse as the goods had disappeared.

Fault

5.69 To be liable the detention must arise through the fault of the defendant. The defendant will escape liability if it can be shown that either the interference was unintentional or there was no lack of care: Houghland v R R Low (Luxury Coaches) Ltd [1962] 2 All ER 159. As to how a detention may arise through negligence, in John F Goulding Pty Ltd v Victorian Railways Commissioners (1932) 48 CLR 157, the High Court held that by delivering the plaintiff’s goods to a third party not entitled to them, the defendant had been negligent and was liable in detinue.

5

Innominate Tort by Reversionary Owners

5.70 An owner of chattels who does not have title to sue in trespass, conversion or detinue because neither possession nor an immediate right to possession is held, may sue in an innominate action on the case (see 2.25) for what amounts to a conversion or trespass, provided the reversionary interest is affected, for example, by some permanent damage to the goods: Mears v London & South Western Railway Co (1862) 11 CBNS 850; 142 ER 1029; referred to in Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 at 230–1 per Dixon J; Dee Trading Co Pty Ltd v Baldwin [1938] VLR 173. It is arguable that the reversioner must wait until the interest is no longer reversionary. The damages are limited to the value of the interest: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.

6

Remedies

5.71 The remedies available for the trespass to personal property actions have different aspects. Certain remedies are available to all three, but may involve different principles, for example the assessment of damages.

Therefore, when an interference with goods gives rise to more than one possible trespass action, the available remedies may be relevant in the decision as to the course of action taken.

Self-help 5.72 Although an owner is entitled to exercise self-help to retake a chattel from a person unlawfully in possession, it is not encouraged as it may render the person seeking to recapture the chattel liable in trespass to person or land, or to criminal prosecution in [page 100] attempting to recapture it if unreasonable force is used. The following principles apply generally to all three of the actions: A plaintiff can retake a chattel from a trespasser using reasonable force short of bodily harm. Older authority suggests that force is not justified unless reasonable attempts have been made to regain peaceably: Blades v Higgs (1861) 10 CBNS 713 at 720; 142 ER 634. The right to retake possession may extend to entry onto land of the actual wrongdoer or another who has helped or is aware of the wrongdoing: Huet v Lawrence [1948] St R Qd 168. In Queensland, ss 274–276 of the Criminal Code (Qld) provide that reasonable force may be used to retake goods, provided no bodily harm occurs. As the Code defences apply in Queensland to civil actions of assault and battery, these provisions would provide a defence to such civil actions.

Damages 5.73

In trespass actions involving personal property, a plaintiff need not

prove damage in order to succeed. Therefore, if no loss is suffered by the plaintiff, nominal damages may be recovered: Kirk v Gregory (1876) 1 Ex D 55; Slaveski v Victoria [2010] VSC 441. If loss has been suffered, the award of damages will depend upon which trespass action is pursued, the damage to the goods and the consequential loss, and the plaintiff’s interest in the goods. As noted by the Zeeman J of the Tasmanian Supreme Court, ‘a distinction must be drawn between the categories of damages which may be recovered in respect of a particular cause of action and the principles according to which damages of a particular category are to be assessed’: Pargiter v Alexander (1995) 5 Tas R 158 at 160. 5.74 The plaintiff can only recover damages to the extent of their own interest in the goods. If the defendant has an interest in the goods, the plaintiff may only recover an amount proportionate to his or her own interest in the goods: Brierley v Kendall (1852) 17 QB 937 (trespass to chattels); Belvoir Finance Co Ltd v Stapleton [1971] 1 QB 210 (conversion). As possession of the goods provides title to sue, a bailee may recover damages as if they were the true owner but is then accountable to the owner for what is received in excess of their own interest. 5.75 If the goods are damaged or destroyed, a plaintiff is entitled to compensatory damages: Australia and New Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 at 409. In Semenov v Pirvu [2011] VSC 605 at [19], Dixon J said: The general rule, where a plaintiff has been permanently deprived of goods, is that the measure of damages, whether in conversion, detinue or trespass, is the value of the property converted, together with any consequential loss that may be proved by the plaintiff. [footnote omitted]

5.76 It is possible to claim exemplary or aggravated damages in the appropriate circumstances. In Pargiter v Alexander (1995) 5 Tas R 158, exemplary damages were awarded to ‘mark the Court’s strong disapprobation of the defendant’s outrageous conduct’: at 168. The defendant’s conduct was considered ‘outrageous’ as a previous judgment had

[page 101] vindicated the plaintiff’s rights to the goods, a yacht, and then the defendant took the yacht a second time and took steps to attempt to deprive the plaintiff of the yacht permanently. See also Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584; Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41. In Moore v Lambeth County Court Registrar (No 2) [1970] 1 QB 560, the court awarded aggravated damages to the plaintiff, who had been wrongfully dispossessed of his goods, to compensate him for the resultant injury to his feelings. See also Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Reports ¶81-397, where aggravated damages were considered appropriate as the respondent had felt a sense of invasion when his car, which had his mobile phone and work diary in it, was clamped and towed away.

Trespass to chattels 5.77 An examination of the cases leads to the conclusion that, in practice, the action of trespass to chattels is usually brought only when an actual loss is suffered. However, in Slaveski v Victoria [2010] VSC 441, the plaintiff sought damages for trespass to chattels — police officers had handled documents and transcribed from them. The documents were not removed from the plaintiff’s premises nor damaged in any way. It was held that a trespass had been committed; however, there was no damage and nominal damages of $1100 were awarded. 5.78 A plaintiff who is permanently deprived of their goods is entitled to recover their full value as at the date of the trespass: Australia and New Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] 2 VR 407 at 409.

5.79 A plaintiff who is in possession of their goods, but they are damaged due to the trespass, may claim compensatory damages. The prima facie rule is that damages are measured by the depreciation in value of the chattel, which is usually assessed based upon the reasonable cost of repairs if it is reasonable in the circumstances to effect repair: Pargiter v Alexander (1995) 5 Tas R 158 at 161 and 164; Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1. However, as the aim of compensatory damages is to place the plaintiff in the position as if no tort was committed (Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185), the plaintiff may provide evidence that they have sustained a loss going beyond that measure in the form of diminution of market value of the chattel: Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1. 5.80 A plaintiff may sell the goods without repairing and then claim as damages the difference between the pre- and post-damage values of the goods. If this option is taken, the pre-damage value must be established and that the best price was obtained for the damaged chattel: see Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1. 5.81 Foreseeable consequential loss is recoverable; for example, if the damaged chattel was a profit-earning chattel, the plaintiff is entitled to the lost profits flowing from the trespass as well as during any period of repair. Likewise, if the plaintiff hires a substitute, the cost of that hire is recoverable: Bodley v Reynolds (1846) 8 QB 779; 115 ER 1066. 5.82 A plaintiff may recover for the non-economic loss, such as the loss of the use and enjoyment of the chattel: Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust [page 102]

Torts Reports ¶81-397 (plaintiff had fondness for his car which was an uncommon model and he used in rallies and competitions). However, the non-economic loss must relate to the trespass. In Pargiter v Alexander (1995) 5 Tas R 158, the claim for damages for the loss of use and enjoyment of the yacht, from the time the yacht was wrongfully taken until it was repaired, was not allowed. It was held that such damages were a result of the detention of the yacht and, therefore, not recoverable in trespass but rather in detinue.

Conversion 5.83 A plaintiff who successfully sues in conversion is awarded the market value of the goods as compensatory damages. This effectively enforces a purchase of the converted goods by the defendant who then receives title to the goods. However, if the plaintiff has regained possession of the goods, ‘credit must be given for their then value, so the damages are the diminution in value between the conversion and the return’: Sadcas Pty Ltd v Business and Professional Finance Pty Ltd [2011] NSWCA 267 at [75] citing Solloway v McLaughlin (1938) AC 247; BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd (1990) 1 WLR 409; Trailways Transport Ltd v Thomas (1996) 2 NZLR 443. If the goods are returned undamaged, the plaintiff will be able to recover nominal damages. 5.84 In detinue, it is clear that a defendant has the option of returning the goods and reducing the damages awarded, primarily because it is the return that the plaintiff has asked for. In conversion, the position with respect to the return of the goods is not so clear. To permit unilateral return would give a right to the wrongdoer to force the goods back on the plaintiff. If the plaintiff rejects the return of the goods and continues with a claim for damages assessed on the basis of a forced sale to the wrongdoer, courts may be reluctant to accord the wrongdoer a right of return: Craig v Marsh (1935) 35 SR (NSW) 323 at 329. 5.85

The value of the converted goods is generally assessed at the date of

the conversion: Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986] AC 337; 1 All ER 480 (Jag Shakti); BBMB Finance (Hong Kong) Ltd v Eda Holdings Ltd [1991] 2 All ER 129. The value of the goods can be either the purchase price of such goods in the market or the selling price. The onus of proving the market value of the converted goods is upon the plaintiff. In Jag Shakti, shipowners wrongfully converted the plaintiffs’ goods by delivering to buyers. Before the Privy Council, the shipowners conceded that the plaintiffs were entitled to damages for conversion but the quantum remained in dispute. The proper damages were the full market value at the time and place of conversion, but the plaintiffs failed to adduce reliable evidence of market value. Therefore, despite the acknowledgment that, at the date of conversion, the cargo price would have been higher than the original price paid, the court awarded the original contract price. 5.86 However, the date of the conversion may not always be an indication of the plaintiff’s actual loss and that is the underlying basis for compensation. In Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 192, Menzies J stated: There is no hard and fast rule that the value of the goods at the time of a conversion is always the measure of the damages to be assessed for the conversion. Often the application of such a rule would produce an obviously unjust result — for example, if goods converted by a defendant had

[page 103] since been recovered by the plaintiff-owner. The true rule is, I think, that stated by Bramwell B in Chinery v Viall (1860) 5 H & N 288; 157 ER 1192, viz that the plaintiff is entitled to recover no more than the real damage he has sustained.

See also Sachs v Miklos [1948] 2 KB 23; Munro v Willmott [1949] 1 KB 295. In IBL Ltd v Coussens [1991] 2 All ER 133, the Court of Appeal confirmed that damages for conversion should not be arbitrarily assessed as at either the date of conversion or at the date of judgment. Rather, it is more appropriate

to assess the damages at a date which fairly compensated the owner for the loss of the goods, taking into account such matters as whether the owner would have kept the goods, whether they would have been sold or replaced, whether they had increased in value and whether there had been damage from loss of use. 5.87 If the value of the goods has increased after the conversion, the plaintiff should be entitled to recover this increased value if the plaintiff neither knew nor ought to have known of the conversion before commencing the action: Sachs v Miklos [1948] 2 KB 23. In Graham v Voigt (1989) Aust Torts Reports ¶80-296, it was held that the plaintiff was entitled to the increased value of the goods as the increase was not due to any act of the defendant but was a natural consequence of the type of goods (collection of stamps). On the basis of the principle that damages in tort are to compensate and not to profit, a plaintiff may not recover as damages for conversion any increase in value brought about by the defendant: Munro v Willmott [1949] 1 KB 295. If the goods have fallen in value since the date of conversion, their value at the date of conversion may be recovered unless there was undue delay in bringing the action: Solloway v McLaughlin [1938] AC 247. 5.88 In the case of conversion of a cheque, damages are prima facie the face value of the cheque at the time of conversion: Associated Midland Corporation Ltd v Bank of New South Wales [1983] 1 NSWLR 533. Where there are successive converters, for example, the original depositor and the bank which credits the account, payments deliberately made by one to discharge liability to the true owner may be taken into account in considering the entitlement in an action for conversion against another tortfeasor. Such payment may reduce damages or even extinguish the cause: confirmed in Hunter BNZ Finance Ltd v ANZ Banking Group Ltd [1990] VR 41. 5.89 Where a plaintiff in possession has only a limited interest, but the defendant has no interest, full value may be recovered by the plaintiff: The

Winkfield [1902] P 42. There may then need to be an account to any other party with an interest for any award above the plaintiff’s limited interest; however, this need to account does not affect the defendant’s liability: Chabbra Corporation Pty Ltd v Jag Shakti (Owners) [1986] AC 337; 1 All ER 480. A bailor under a hire–purchase agreement is only entitled to recover the value of the chattel less any instalments paid: Belsize Motor Supply Co v Cox [1914] 1 KB 244; Wickham Holdings Ltd v Brooke House Motors Ltd [1967] 1 WLR 295; Western Credits Pty Ltd v Dragan Motors Pty Ltd [1973] WAR 184. Conversely, where a bailor owner wrongfully seizes goods from a bailee hirer, the usual damages will be the value of the goods less the unpaid instalments: City Motors (1933) Pty Ltd v Southern Aerial Super Service Pty Ltd (1961) 106 CLR 477. [page 104] An unpaid vendor who wrongfully disposes of the goods is entitled to deduct from the damages payable to the purchaser the price which the purchaser is no longer liable to pay, unless the purchaser is not relieved from payment of the purchase price: Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584. 5.90 A plaintiff is entitled to recover all foreseeable consequential loss resulting from the conversion: General and Finance Facilities Ltd v Cook’s Cars (Romford) Ltd [1963] 1 WLR 644. Therefore, for the conversion of a profit-earning chattel, such items as loss of profits (Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246) and other reasonable associated costs may be awarded. In Hillesden Securities Ltd v Ryjack Ltd [1983] 1 WLR 959, there was a three-year lease of a Rolls Royce which the hirer purported to sell to a director/shareholder of a company. Both he and the company used the car jointly. The true owner sold his rights

to the plaintiff who sued the defendants. The director admitted conversion but argued that, at common law, his liability was limited to the value of the chattel at the date of conversion, plus interest. It was held that consequential damages were always recoverable for conversion, if not too remote, in cases where the goods had been detained and used and they were earning profit, that is, a hire charge by way of damages together with its value or return. Both defendants were held liable for full hire charge until the return of the Rolls Royce. See also Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175; Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd (1993) Aust Torts Rep ¶81-244.

Detinue 5.91 As the tort of detinue is concerned with the wrongful detention of goods, damages will be awarded for the wrongful detention. The tort arises upon the wrongful refusal to return the goods (Premier Group Pty Ltd v Followmont Transport Pty Ltd [2000] 2 Qd R 338 at 344), and therefore damages for wrongful detention are assessed from the time of refusal until the date of judgment: General and Finance Facilities Ltd v Cook’s Cars (Romford) Ltd [1963] 1 WLR 644; Palace Backpackers Australia Pty Ltd v Christensen Industries Pty Ltd (2002) 23 Qld Lawyer Reps 79; QDC 084 at [20]–[21]. 5.92 If the goods are ordinary articles in commerce and have not been returned to the plaintiff by the time of judgment, compensatory damages are awarded — assessed as the value of the chattel at the date of judgment (Brandeis Goldschmidt & Co Ltd v Western Transport Co Ltd [1981] QB 864) plus damages for its detention. 5.93 It is no more than a prima facie presumption that the damages be assessed according to the value of the goods as at the date of judgment, because the overriding principle is to compensate for the loss actually suffered: Admiralty Commissioners v Susquehanna (Owners) [1926] AC 655. Where a defendant refuses to produce the goods in order to determine their

value, the courts have long taken the view that they may assess damages on the basis that the goods are of the best quality: Armory v Delamirie (1722) 1 Stra 505; 93 ER 664. A plaintiff cannot make a profit through an award of damages: Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185. Under the doctrine of accession, if an innocent third party adds value to the goods, without notice and the accretion can be detached, the removal of the accretion can be ordered by the court. If not, then compensation to the third [page 105] party may be imposed as a term of the order for repossession: see Wade Sawmill Pty Ltd v Colenden Pty Ltd (t/as Pilks Pine) [2007] QCA 455 at [24]; McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312–13 (where the defendant built a yacht incorporating a hull owned by the plaintiff). 5.94 Damages that flow as a consequence of the detention of goods are recoverable if the loss is foreseeable: Macrocom Pty Ltd v City West Centre Pty Ltd [2003] NSWSC 898 at [45]; National Australia Bank Ltd v Nemur Varity Pty Ltd (2002) 4 VR 252. Therefore, the loss of profits suffered by the plaintiff during the detention of a profit-earning chattel may be claimed: Egan v State Transport Authority (1982) 31 SASR 481. If the detained goods are ordinarily hired out by the plaintiff, damages are awarded for the loss of use, the measure usually being the normal hiring rate: Gaba Formwork Contractors Pty Ltd v Turner Corporation Ltd (1991) 32 NSWLR 175 at 178; Pargiter v Alexander (1995) 5 Tas R 158 at 161. If the defendant has detained the goods and used them, the court may award as damages the reasonable hire charge of the goods. In Strand Electric and Engineering Co Ltd v Brisford Entertainments Ltd [1952] 2 QB 246 at 254–5, Denning LJ stated:

If a wrongdoer has made use of goods for his own purposes, then he must pay a reasonable hire for them, even though the owner has in fact suffered no loss. It may be that the owner would not have used the goods himself, or that he had a substitute readily available, which he used without extra cost to himself. Nevertheless the owner is entitled to a reasonable hire. If the wrongdoer had asked the owner for permission to use the goods, the owner would be entitled to ask for a reasonable remuneration as the price of his permission. The wrongdoer cannot be better off because he did not ask permission. He cannot be better off by doing wrong than he would be by doing right. He must therefore pay a reasonable hire.

In Reynolds v Aluma-Lite Products Pty Ltd (2010) Aust Torts Reports ¶82072, the court refused to award damages as the plaintiffs could not establish that the goods in question were normally hired out for profit or that the defendant had used the goods for its own purposes during the detention. 5.95 It is possible to claim damages for the loss of use and enjoyment if there are no economic interests involved: Private Parking Services (Vic) Pty Ltd v Huggard (1996) Aust Torts Reports ¶81-397; Pargiter v Alexander (1995) 5 Tas R 158. In Wong v Maroubra Automotive Refinishers Pty Ltd [2015] NSWSC 222, the defendants wrongfully detained the plaintiff’s car and the court awarded damages for the loss of the use of the vehicle in the amount represented by the market rate of hiring a replacement car.

Injunction 5.96 The injunction is an equitable remedy, and the court must be persuaded that the grant of an injunction is justified as an award of damages would be inadequate to remedy the wrong in the circumstances.

Trespass to chattels 5.97 A plaintiff seeking an injunction for the trespass to their goods would have to establish that an award of damages would be inadequate as the interference with their possession would continue or reoccur: Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204.

[page 106] However, the court cannot order that the defendant return the goods to the plaintiff if the plaintiff has not regained possession.

Conversion 5.98 Although a court cannot order the return of the converted goods, if the plaintiff can prove that the defendant will continue to exercise dominion over their goods, an injunction may be ordered. The case of Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204, in relation to trespass to chattels and conversion, provides a useful illustration. The plaintiff sought an injunction to restrain the defendant from filling its bottles with other merchants’ wine. While a majority of four of the members of the High Court held there had been conversion, only a minority of two was prepared to grant an injunction because of the absence of any systematic practice of using Penfolds’ bottles and because damages at common law were available. Interlocutory injunctions may be granted to restrain the disposition of goods which have no intrinsic qualities, for example a motor vehicle, if there is a possibility of invalid title being passed to innocent third parties by further dispositions: Gedbury Pty Ltd v Michael David Kennedy Autos [1986] 1 Qd R 103.

Detinue 5.99 As with the other actions, a plaintiff may seek an injunction if there is the likelihood of their goods being wrongfully detained again. However, as detinue is based upon the defendant being in possession of goods to which the plaintiff has the right of possession, it is the only action that provides the remedy of a court ordering the return of the goods to the plaintiff. 5.100 A plaintiff suing in detinue has the option of seeking the return of the chattel or recovery of its value at the date of judgment and damages for its

detention: General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd [1963] 1 WLR 644; Haythorpe v Rae [1972] VR 633. 5.101 A judgment for the return of the goods is appropriate in the case of a chattel having some intrinsic value or in being so unique that it cannot be replaced: McKeown v Cavalier Yachts Pty Ltd (1988) 13 NSWLR 303 at 312 (yacht held to have sufficient individuality to allow an order for its return). A court will not order the return of a chattel if it can readily be replaced in the market, as damages are an adequate remedy: General & Finance Facilities Ltd v Cooks Cars (Romford) Ltd; Whitely Ltd v Hilt [1918] 2 KB 808 at 819.

7

Limitation Period

5.102 For actions in tort claiming damages in respect of property, the limitation period is six years, except in the Northern Territory where it is three years: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s 14(1)(b); Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act 1936 [page 107] (SA) s 35(c); Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 9. See also Chapter 14. 5.103 For actions in trespass to chattels, the limitation period commences to run at the date of the interference. In conversion, the cause of action arises at the date the goods are converted. For actions in detinue, time runs from the moment the defendant’s possession becomes wrongful, that is, after demand and refusal: Ming Kuei Property Investments Pty Ltd v Hampton (1994) 126 ALR 313.

5.104 Where there is more than one wrongful act constituting conversion or detinue (successive conversions), the cause of action is barred six years from the date of the first act: Limitation Act 1985 (ACT) s 18; Limitation Act 1969 (NSW) s 21; Limitation Act 1981 (NT) s 19(1); Limitation of Actions Act 1974 (Qld) s 12(1); Limitation Act 1974 (Tas) s 6(1); Limitation of Actions Act 1958 (Vic) s 6(1); Limitation Act 2005 (WA) s 59. There is no equivalent in South Australia. The effect of this limitation in some jurisdictions is that the plaintiff’s title in the goods is extinguished: Limitation Act 1981 (NT) s 19(2); Limitation of Actions Act 1974 (Qld) s 12(2); Limitation Act 1974 (Tas) s 6(2); Limitation of Actions Act 1958 (Vic) s 6(2). See also 14.12.

Further Reading L Aitken, ‘The Abandonment and Recaption of Chattels’ (1994) 68 ALJ 263. R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 4. J Goldring, ‘The Negligence of the Plaintiff in Conversion’ (1977) 11 MULR 91. J Tooher, ‘Jubilant Jamie and the Elephant Egg: Acquisition of Title by Finding’ (1998) 6 APLJ 117.

[page 109]

Chapter 6 Defences to Trespass 1

Introduction

6.1 Despite the fact that to be liable in trespass the defendant must be at fault — that is, either committed the interference intentionally or due to lack of care — there is a wide range of defences available. Some are of limited application and some of practical importance.

2

Inevitable Accident

6.2 To succeed in any trespass, there is the requirement that the defendant be at fault. If there is no fault on the part of the defendant, this may be referred to as the defence of ‘inevitable accident’. Inevitable accident remains a defence in Australia where trespass actions are classified as direct, unlike the United Kingdom where intention is a necessary element for all trespasses. Therefore, in the United Kingdom, an inevitable accident would mean that there is no trespass due to lack of intention: Letang v Cooper [1965] 1 QB 232. 6.3 In a non-highway trespass in Australia, the defendant can raise absence of fault as a defence, and proof of an inevitable accident will demonstrate the absence of such fault. For example, the child defendant in McHale v Watson (1964) 111 CLR 384 was held to have thrown the dart without intention or negligence and, therefore, not liable in trespass. See also National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB 861.

6.4 It may be argued that it is an inevitable accident if the interference was the consequence of an involuntary act as there is neither intention nor lack of care: see 2.15 and 6.65. In Public Transport Commission (New South Wales) v Perry (1977) 137 CLR 107; 14 ALR 273, it was considered whether the respondent had trespassed by falling unconscious onto the railway tracks during an epileptic attack. Gibbs J explained (CLR at 133; ALR at 294): A person who is lawfully upon premises, and is using the premises in an ordinary and reasonable way, becomes a trespasser only if he goes voluntarily on to part of the premises to which the invitation does not extend: if he falls, or is pushed, on to a forbidden area he does not thereby become a trespasser.

[page 110]

3

Consent

6.5 There is some debate as to whether consent is a defence to trespass actions or lack of consent is an element of the action.1 Whichever view is taken, valid consent will prevent an action for trespass to land, goods or person arising: Amess v Hanlon (1873) 4 AJR 90; Latter v Braddell (1881) 44 LT 369; McNamara v Duncan (1971) 26 ALR 584. 6.6 The consent may be express or implied. For example, there is implied consent for the public to enter land for legitimate purposes: Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331; TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333. See 4.27. 6.7 Participants in body contact sports are taken to have impliedly consented to contact that is within the normal incidence of playing the sport: McNamara v Duncan (1971) 26 ALR 584. However, battery may be proven if the contact occurs outside the rules of the game: McNamara v Duncan. In Giumelli v Johnston (1991) Aust Torts Reports ¶81-085, the plaintiff and the

defendant were in opposing teams in an Australian Rules football match. The defendant collided with the plaintiff, who was holding the ball during open play, using a ‘hip and shoulder’ bump, which was permitted under the rules of the game. However, just before contact, the defendant raised his elbow in a thrusting action into the plaintiff’s cheekbone. This was against the rules of the game. The plaintiff sued the defendant, alleging a battery, and the defendant argued that the plaintiff had consented to the contact by participating in the game. The Full Court of the Supreme Court of South Australia held that the blow constituted a battery. King CJ (with whom Mohr and Prior JJ agreed) said (at 68,708–10): The rules of Australian Rules Football permit bodily contact, including strong bodily contact, in the course of the game. Those who participate in a football match are taken to consent to the infliction on them of such physical force as is permitted by the rules of the game. It was accepted by the [plaintiff] in evidence, moreover, that some bodily contact outside the rules of the game is to be expected as an ordinary incident of a football match … Although a player’s consent to the application of force to him in the course of the game extends not only to the application of force within the rules of the game but also to certain commonly encountered infringements of the rules … such consent cannot be taken to include physical violence applied in contravention of the rules of the game by an opposing player who intends to cause bodily harm or knows, or ought to know, that such harm is the likely result of actions.

See also Canterbury Bankstown Rugby League Football Club Pty Ltd v Rogers (1993) Aust Torts Reports ¶81-246, which involved a head-high tackle, outside the rules, in a rugby league game. The player was held liable for the battery, as was the player’s club through vicarious liability. 6.8

To be valid consent: the interference must be within the scope of the consent; it must be voluntary; and the plaintiff must have the legal capacity to give consent. [page 111]

Scope of the Consent 6.9 If the interference exceeds the scope of, or the conditions attached to, the consent, there is no valid consent, and the entire conduct may be trespassory. For example, in Barker v R (1983) 153 CLR 338; 47 ALR 1, the express consent to enter the premises was for the purpose of security, not for the purpose of theft. See 4.25. As for the implied licence to the public to enter premises, it is limited in scope and is valid only in relation to legitimate purposes: Halliday v Nevill (1984) 155 CLR 1; 57 ALR 331: see 4.27ff. Therefore, a defendant who enters the plaintiff’s property for an illegitimate purpose is a trespasser from the initial entry as the entrance is not within the scope of the licence: TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333; Rinsale Pty Ltd v Australian Broadcasting Corporation (1993) Aust Torts Reports ¶81-231. If a plaintiff has consented to a criminal act, that consent will be a valid defence in civil proceedings, although the defendant may remain criminally liable: Bain v Altoft [1967] Qd R 32 at 41.

Voluntary 6.10 If the consent has been obtained by fraud or duress it will not be valid as it is not voluntary. For fraud to negate the consent, the fraud must go to the quality of the act consented to and not to its nature, which is merely collateral: Hegarty v Shine (1878) 14 Cox CC 124; Smythe v Reardon [1949] St R Qd 74. In R v Williams [1923] 1 KB 340, the defendant argued consent by the plaintiff to sexual intercourse. However, he had gained her consent by persuading her she required a ‘special’ surgical procedure to improve her singing voice (he was her teacher) and therefore there was no valid consent. The plaintiff had been induced by the fraud as to the nature of the act. In contrast, in R v Papadimitropoulos (1957) 98 CLR 249 the High Court held that there had

been consent to sexual intercourse by the complainant, the fraud was that the complainant had agreed in the belief that she and the defendant were married, when they were not. 6.11 In Dean v Phung [2012] NSWCA 223, the appellant alleged that the consent to dental treatment had been obtained by fraud as it had been misrepresented as reasonably necessary when it was carried out to generate income. The appellant had suffered minor damage to his front teeth in a work accident yet the respondent undertook 12 months of treatment that involved root canals to remove all nerves and capping every tooth. In Dean v Phung [2011] NSWSC 653, the judge held that the treatment was incompetent but, on the balance of probabilities, fraud had not been proved: at [29]. On appeal the court stated that the treatments carried out were not for a therapeutic purpose. Basten JA held ‘a procedure of the nature carried out was not capable of addressing the patient’s condition, there can be no valid consent’: at [63]. Macfarlan JA explained (at [94]): … it was established that the practitioner did not perform the relevant procedures undertaken on the appellant’s teeth for therapeutic purposes but for another purpose, presumably to generate income for himself. … I consider this finding to be necessary for the conclusion that the appellant did not consent to the procedures and they therefore constituted a trespass to his person. On the basis of that finding, the appellant was not aware of the nature and character of

[page 112] the dental acts: he believed that they constituted dental treatment that the practitioner regarded as necessary or appropriate. In fact, when the practitioner’s state of mind is taken into account, that was not their character. They were acts designed to generate income for the practitioner.

6.12 Consent procured by duress will be ineffective: Symes v Mahon [1922] SASR 447 (case of false imprisonment).

Capacity to Consent

6.13 The plaintiff must be able to give valid consent. Therefore, the plaintiff’s age may be relevant as well as their mental ability. There is no legislation that states at what age a minor may give valid consent. In Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 at 188, a case concerning consent by a minor to medical treatment, Lord Scarman stated: … a minor’s capacity to make his or her own decision depends upon the minor having sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judiciary fixed age limit.

See also Secretary, Department of Health & Community Services v J W B (Marion’s case) (1992) 175 CLR 218 at 238. In actions of battery (see 3.10), to avoid actions for interferences that were part of everyday life in society, it was reasoned that there was implied consent to such contact. It was the requirement that there must be capacity to consent that led to the abandonment of this principle. In Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 at 72, it was observed that rationalising contact that forms part of everyday life as being ‘founded upon implied consent to bodily contact’ was artificial, making particular reference to the difficulty in imputing consent to minors and those suffering mental disorders.

Consent to Medical Treatment 6.14 To be valid consent to medical treatment, the same principles apply as discussed above. In Schloendorf v Society of New York Hospital 105 NE 92 (1914) at 93, Cardozo J stated: Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.

This has been adopted in Australia. In Secretary, Department of Health & Community Services v J W B (Marion’s case) (1992) 175 CLR 218 at 310, McHugh JA stated: At common law, therefore, every surgical procedure is an assault unless it is authorised, justified or excused by law.

6.15 Basten JA of the New South Wales Court of Appeal summarised the law as to consent to medical treatment in Dean v Phung [2012] NSWCA 223 at [61]–[64]: Consent will be valid where the basic information as to the nature of the proposed medical treatment has been provided to the patient, but if the nature has been misrepresented the consent is not valid. The effect of the misrepresentation must be identified if the proposed treatment is capable of achieving the therapeutic effect. It is ‘necessary to distinguish between [page 113] core elements, which define the nature of the procedure, and peripheral elements, including risks of adverse outcomes’: at [62]. There is no valid consent if the motive of the practitioner was to provide non-therapeutic treatment although objectively the proposed treatment was capable of constituting therapeutic treatment.

Scope of consent 6.16 A signed consent form is not conclusive evidence: Chatterton v Gerson [1981] 1 All ER 257. Consent to a particular medical procedure is not necessarily consent to other procedures performed during the same operation, unless it is proven that there was implicit consent. In McDonald v Ludwig [2007] QSC 028, the plaintiff underwent a sterilisation operation. Before the operation, the plaintiff had been made aware of the possible presence of adhesions that could increase the risk of failure and injury to the bowel. During the sterilisation, the surgeon separated the adhesions. The court held that although the plaintiff had not expressly consented to the division of the adhesions, it was implicit in the advice given to her that the surgeon may need to deal with them in some way. Therefore, there was no

trespass to the person as the division of the adhesions was incidental to the sterilisation: at [83]–[84]. Contrast Schweizer v Central Hospital 53 DLR (3d) 494 (1974), where a patient successfully sued as he consented to toe surgery not to spinal fusion. See also, Murray v McMurchy 2 DLR 442 (1949), where it was held that a sterilisation procedure undertaken during a caesarean because it was convenient but not necessary, was not within the scope of the consent. See also Dean v Phung [2012] NSWCA 223 at [61]–[65].

Voluntary 6.17 It is more common that scope and capacity are in issue in medical cases of trespass. However, if the consent to the treatment was obtained by fraud or duress, then it will not be valid. In Dean v Phung [2012] NSWCA 223, the allegation was that the respondent had committed fraud by representing that the expensive course of treatment was necessary when in fact it was not. The issue was ‘whether treatment which was unnecessary (and now conceded to be so) was presented as necessary (again conceded) so that any apparent consent did not satisfy the criteria for consent to treatment, the treatment in question being unnecessary in the sense that it was not capable of constituting a therapeutic response to the patient’s condition’: at [65]. The court held that as the treatment was not necessary, the misrepresentation went to the nature of the treatment and therefore the appellant’s consent was not valid.

Capacity to consent 6.18 If an adult patient lacks legal capacity to give consent, the guardianship legislation provides for consent to be given by that person’s appointed guardian under strict regulation: Guardianship and Management of Property Act 1991 (ACT); Guardianship Act 1987 (NSW); Adult Guardianship Act 1988 (NT); Guardianship and Administration Act 2000 (Qld); Guardianship and Administration Act 1993 (SA); Guardianship and

Administration Act 1995 (Tas); Guardianship and Administration Act 1986 (Vic); Guardianship and Administration Act 1990 (WA). [page 114] 6.19 Australian legislation provides that a person attains adulthood upon the age of 18 years: Age of Majority Act 1974 (ACT) s 5; Minors (Property and Contracts) Act 1970 (NSW) s 9; Age of Majority Act 1981 (NT) s 4; Law Reform Act 1995 (Qld) s 17; Age of Majority (Reduction) Act 1971 (SA) s 3; Age of Majority Act 1973 (Tas) s 3; Age of Majority Act 1977 (Vic) s 3; Age of Majority Act 1972 (WA) s 5. It is the parents or guardian of a minor who must give consent for, or the refusal of, medical treatment until the child is of an age at which they are capable of giving valid consent. In Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 at 188–9, it was held that a parent only had the right to consent to their child’s treatment until the child possessed ‘a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. This principle was approved by the High Court in Secretary, Department of Health & Community Services v J W B (Marion’s case) (1992) 175 CLR 218 at 237. South Australian legislation specifically confers capacity to consent to medical treatment upon children of 16 years of age: Consent to Treatment and Palliative Care Act 1995 (SA) ss 3, 4 and 6. However, children under the age of 16 years in South Australia (Consent to Treatment and Palliative Care Act 1995 (SA) s 12) and under the age of 18 in all other Australian jurisdictions, must possess sufficient understanding to give valid consent, otherwise the consent must be by the parent or guardian. See also Minors (Property and Contracts) Act 1970 (NSW) which gives limited protection to a doctor treating a minor against actions in assault and battery. 6.20 A court exercising its jurisdiction in the interests of a child’s welfare (parens patriae jurisdiction) may overrule the informed decision of a parent

or child. Such power is exercised with caution and it is the welfare of the child which is paramount: Secretary, Department of Health & Community Services v J W B (Marion’s case) (1992) 175 CLR 218 at 293; Sydney Children’s Hospital Network (Randwick and Westmead) v X (2013) 49 Fam LR 330 at [10]. See, for example, Minister for Health v AS (2004) 33 Fam LR 223 (a 15-year-old child refused consent to blood transfusions due to religious beliefs with parents’ support of decision); Re Heather; Director-General, Department of Community Services v M [2003] NSWSC 532 (an 11-year-old child and parents opposed chemotherapy in preference to seeking alternative and experimental treatments). 6.21 Cosmetic surgery for minors has been the subject of much public debate, raising the issue of whether children may validly consent to such procedures. In Queensland, s 213B of the Public Health Act 2005 makes it an offence to perform, or offer to perform, cosmetic surgery on a child, unless it is believed on reasonable grounds that the procedure is in the best interests of the child.

Emergency treatment 6.22 Under the common law it is permissible to provide treatment in an emergency without obtaining consent if it is reasonable and necessary: Rogers v Whitaker (1992) 175 CLR 479 at 489; 109 ALR 625 at 632; Secretary, Department of Health and Community Services v J W B (Marion’s case) (1992) 175 CLR 218 at 310; Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 at [31]; Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112. However, if the medical practitioner is aware that [page 115] the patient has denied consent, this emergency doctrine cannot be relied upon to avoid liability.

If medical treatment is provided in an emergency and no person authorised to give consent is available, the defence of necessity may be raised: see 6.44. 6.23 Legislation exists in some jurisdictions that allows treatment in an emergency, subject to knowledge of any refusal by the patient: Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174; Emergency Medical Operations Act 1973 (NT) s 3; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 13. The common law applies in the other jurisdictions except in respect of the administration of blood transfusions: see Transplantation and Anatomy Act 1978 (ACT) s 23; Transplantation and Anatomy Act 1979 (Qld) s 20; Human Tissue Act 1985 (Tas) s 21; Human Tissue Act 1982 (Vic) s 24; Human Tissue and Transplant Act 1982 (WA) s 21. 6.24 If the patient is an adult lacking capacity to give consent, the guardianship legislation in many jurisdictions allows emergency treatment without consent: Guardianship Act 1987 (NSW) s 37; Emergency Medical Operations Act 1973 (NT) s 3; Guardianship and Administration Act 2000 (Qld) s 63; Guardianship and Administration Act 1995 (Tas) s 40; Guardianship and Administration Act 1986 (Vic) s 42A; Guardianship and Administration Act 1990 (WA) s 110ZH.

Right to refuse medical treatment 6.25 The rights of patients to consent to or refuse medical attention, although not doubtful in principle, are sometimes difficult in application. It is quite clear that an adult patient with the capacity to decide may refuse treatment even if that refusal is life-threatening and even without giving reasons, rational or otherwise: Hunter and New England Area Health Service v A (2009) 74 NSWLR 88; Re T (Adult: Refusal of Treatment) [1993] Fam 95; Qumsieh v Guardianship and Administration Board [1998] VSCA 45; St

George’s Healthcare NHS Trust v S [1998] 3 All ER 673. In Airedale NHS Trust v Bland [1993] AC 789 at 891, it was stated: If the patient is capable of making a decision on whether to permit treatment and decides not to permit it his choice must be obeyed, even if on any objective view it is contrary to his best interests. A doctor has no right to proceed in the face of objection, even if it is plain to all, including the patient, that adverse consequences and even death will or may ensue.

See also Re B (Adult: Refusal of Medical Treatment) [2002] 2 All ER 449 (removal of ventilator would lead to death but issue was whether patient had the capacity to make the decision); Brightwater Care Group v Rossiter [2009] WASC 229 (issue was the process of refusal of treatment, not the outcomes of refusal). 6.26 The common law recognises that a person may complete an advance health directive which will legally bind the person treating them. The directive may refuse medical treatment and if valid, a medical practitioner who provides treatment contrary to the directive may be liable in tort: Hunter and New England Area Health Service v A (2009) 74 NSWLR 88. In some Australian jurisdictions legislation governs this area of the law, and adults may prepare advance health directives that state the person’s instructions as to their future health care: [page 116] Medical Treatment (Health Directions) Act 2006 (ACT) Pt 2; Advance Personal Planning Act 2013 (NT) Pt 2; Powers of Attorney Act 1998 (Qld) Ch 3, Pt 3; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 8; Medical Treatment Act 1988 (Vic) ss 5A, 5B(2); Guardianship and Administration Act 1990 (WA) s 110P. In some jurisdictions, it may be a criminal offence to administer treatment against a patient’s wishes: Medical Treatment Act 1988 (Vic) s 6; Guardian and Administration Act 1990 (WA) Pt 9B. The common law applies in New South Wales and Tasmania.

Revocation or Withdrawal of Consent 6.27 Consent, express or implied, may be revoked or withdrawn by the party who gave the consent. 6.28 Revocation or withdrawal may take place before or after the act consented to has taken place. In Plenty v Dillon (1991) 171 CLR 635; 98 ALR 353, it was held by the High Court that the implied licence to enter the plaintiff’s premises had been revoked prior to the police officers’ entry to serve a summons and, therefore, entry was a trespass: see 4.32. In Kuru v New South Wales (2008) 246 ALR 260, it was held that, by failing to leave the appellant’s property within a reasonable time after revocation of consent, the police officers were committing a trespass: see 4.35. 6.29 It is also possible that a contractual term prevents the withdrawal of the plaintiff’s consent having immediate effect: Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379, and see 3.63.

4

Self-Defence

6.30 An act of self-defence is regarded by the law as an instinctive reaction in circumstances where there is little opportunity for rational analysis of all of the possible courses open. The defendant’s interference is justified by the need to avert the threat of imminent harm to their person. To succeed in the defence of self-defence, the defendant must prove: there was a threat of imminent harm to their person; and there were reasonable grounds to believe that the force used was necessary: Fontin v Katapodis (1962) 108 CLR 177; McClelland v Symons [1951] VLR 157. In Watkins v Victoria (2010) 27 VR 543 at [71]–[72], the defence was explained as follows:

In the context of a civil proceeding, the defendant must have believed at the time when he committed the relevant act that what he was doing was necessary; and that belief must have been based on reasonable grounds. The second element does not involve a test about what a hypothetical reasonable person might have believed in the circumstances, but rather whether the defendant had reasonable grounds for his belief, in the circumstances as he perceived them to be. In determining whether the defendant believed that the force used was necessary, consideration should be given to the fact that a person who has reacted instantly to imminent danger cannot be expected to weigh precisely the exact measure of self defensive action which is required.

See also Howard v Wing [2000] TASSC 147; Pearce v Hallett [1969] SASR 423; Bennett v Dopke [1973] VR 239. [page 117] 6.31 If the defendant used excessive force, the defence will fail: Fontin v Katapodis (1962) 108 CLR 177; Underhill v Sherwell [1997] NSWCA 325. The degree of force will be a question of fact in view of all of the circumstances: Watkins v Victoria (2010) 27 VR 543 at [72]. In McClelland v Symons [1951] VLR 157, the plaintiff picked a rifle, loaded it and pointed it at the defendant saying, ‘I’ve brought the gun to shoot you and here it is’. The defendant then struck the plaintiff on the head with a metal bar and ended up being sued for battery. It was held that the defendant had not committed a battery as he was acting in reasonable self-defence. In Miller v Sotiropoulos (NSWCA, Mason P, Meagher and Powell JJA, 18 August 1997, unreported) when considering the claim of self-defence, Meagher JA observed ‘a minor push cannot possibly justify a lethal punch in reply’: at 14. In Fontin v Katapodis (1962) 108 CLR 177, the plaintiff was a customer at the glass department of a hardware store. The defendant was employed to cut glass in the department. The plaintiff and the defendant argued when the defendant refused to apologise to the plaintiff for telling the manager of the glass department that he (the plaintiff) had not paid his account when he had, in fact, done so. The plaintiff picked up a T-square from beside the

defendant’s bench and hit the defendant on the shoulder. The defendant then threw an off-cut of glass at the plaintiff’s face. The plaintiff put up his hands to protect his face, and the glass made a deep cut in his arm. The High Court of Australia held that the plaintiff’s action in battery succeeded because the defendant’s act of self-defence was unreasonable. McTiernan J said (at 181– 2): It is clear that Fontin had a right to defend himself against being beaten by Katapodis. The question is whether, in the circumstances, it was reasonably necessary for him to throw the piece of glass at Katapodis … Perhaps Katapodis may have struck more severe blows if Fontin had not prevented him. But to throw the piece of glass at Katapodis as a means of self-defence was out of all reasonable proportion to the emergency confronting Fontin.

6.32 In Queensland, the definition of ‘assault’ in s 245 of the Criminal Code is applied to civil cases of assault and battery; therefore, the defences contained in the Code may also apply: see 3.43. Section 271 provides a complete defence in that it is lawful for the defendant to use such force that is reasonably necessary to make an effectual defence against the unprovoked attack. The force cannot be intended, or likely, to cause grievous bodily harm or death. In Western Australia, the defences contained in the Criminal Code are available in civil actions as ‘if an act is declared lawful by a provision of the Criminal Code, the effect of s 5 of the Criminal Code Act is to provide a statutory defence in addition to any existing common law defences’: May v Thomas (No 2) [2012] WADC 96 at [21]. Therefore, self-defence against an unprovoked assault may be raised as a defence: Criminal Code (WA) s 248. See also s 52 of the Civil Liability Act 2002 (NSW), which provides that a person does not incur civil liability for conduct arising from self-defence if they believe the conduct is necessary. See New South Wales v McMaster [2015] NSWCA 228.

5

Defence of Another

6.33 Historically, it was a good defence to use reasonable force to protect a party closely related to, or associated with, oneself, for example a spouse or other close [page 118] relative such as a parent or child, or a servant or master. There is no reason why the defence should not extend to all persons, but the cases have not established a body of law extending the defence to cases where the defendant was defending a stranger. The same requirements as in self-defence apply to defence of another — the defendant must believe on reasonable grounds that it was necessary for them to have done what they did in defence of another person: R v Portelli (2004) 148 A Crim R 282; Watkins v Victoria (2010) 27 VR 543. In Goss v Nicholas [1960] Tas SR 133, the plaintiff and a female friend named Wilson went to the house of a man named Pemberton to complain of certain words Pemberton’s daughter had used to Wilson’s daughter. The plaintiff and Pemberton had a heated dialogue on the doorstep, and the plaintiff repeatedly wagged his finger at Pemberton, saying that he would be ‘on the warpath’ if Pemberton’s daughter was not punished. The defendant then came running past Pemberton and struck the plaintiff a heavy blow on the cheek. The plaintiff alleged battery, but the defendant alleged that his actions were reasonably necessary in defence of Pemberton. Crawford J said (at 144): [I] take the law to be that a person is entitled to use force to prevent a stranger from being assaulted if he has reasonable grounds for believing that an assault upon that stranger is about to take place. In considering what force may be used, I hold that it must be reasonably proportioned to the degree of injury to be expected from the assault upon the stranger.

It was held that the defendant had used more force than was reasonably necessary, given the nature of the threat to Pemberton by the plaintiff.

6.34 For civil actions in Queensland, s 273 of the Criminal Code provides the same defence. See also Criminal Code (WA) s 250. Section 52 of the Civil Liability Act 2002 (NSW) provides that a person does not incur civil liability when defending another person if they believe the conduct is necessary.

6

Provocation (Queensland)

6.35 Provocation arises when it is alleged that the acts of the plaintiff induced the defendant to lose self-control. It is not a defence under the common law (Fontin v Katapodis (1962) 108 CLR 177), but in Queensland, due to the application of the Criminal Code to civil actions of assault and battery, provocation as provided by the Code provides a complete defence: White v Connolly [1927] St R Qd 75; Love v Egan (1970) 65 QJPR 102; see 3.44. To establish provocation under s 269 of the Criminal Code (Qld), the defendant must prove that: they were provoked by the plaintiff and acted before there was time for their passion to cool; the force used was not disproportionate to the provocation (see 6.31); and the force used was neither intended nor likely to cause death or grievous bodily harm. See also, Criminal Code (WA) s 246. 6.36 In Prior v Kemp [2001] WASCA 22, the appellant was convicted of assault under s 313 of the Criminal Code (WA). The appellant claimed that he had been provoked by his [page 119]

estranged wife’s insults that he had cheated his dying grandfather. At trial, it was held that the defence of provocation (Criminal Code (WA) s 246) was not available as the evidence was that the assault had not occurred in response to the wife’s comments; there was no sudden reaction by the appellant. The court on appeal stated (at [60]): In the first stage, the gravity of the provocation is assessed by reference to the particular characteristics of the accused which may be relevant. Such characteristics may include age, race, sex, personal history and other factors. The result of that assessment is a characterisation of the provocation upon a scale of gravity, ranging from minor and trivial to extreme. The next question involves an assessment of how an ordinary person could have responded to provocation of that particular degree of gravity.

It was held that there was no defence of provocation as the evidence was that there was no loss of self-control; allegations concerning the appellant’s grandfather had been raised for over 13 years between the parties and the assault was linked to the appellant taking steps to remove his wife from the premises.

7

Defence of Property

6.37 It is a good defence to use reasonable force to defend one’s own property: Norton v Hoare (No 1) (1913) 17 CLR 310 at 322. There is no reason why it should not extend to defence of another’s property but, as with defence of others, the authorities have not clearly confirmed such a broad principle. The defensive conduct must be proportionate to the threatening activity, although it could be argued that the interest in property should be less deserving of protection than that of personal safety and this may have an effect on measuring proportionality. For civil actions of assault and battery in Queensland, the defence is contained in s 277 of the Criminal Code. See also Criminal Code (WA) s 254 (defence of property against trespassers: removal of disorderly persons).

8

Self-Help

6.38 A person may be entitled to enter the land of another or take other self-help measures, upon giving of due notice, to abate a nuisance which substantially interferes with enjoyment of one’s land: see Chapter 25. Therefore, justified abatement of nuisance is a defence to an action for trespass to land: Lemmon v Webb [1895] AC 1. However, the acts of abatement must be reasonable and proportionate to the nuisance. See also s 141 of the Civil Law (Wrongs) Act 2002 (ACT), where it is a defence to an action in trespass to land if: the defendant does not claim an interest in the land; and establishes that the trespass was unintentional or was due to negligence; and has made a reasonable offer to make amends before an action is brought. [page 120]

9

Necessity

6.39 Necessity differs from defence of an interest because it need not involve a response to some wrongdoing by another; it is merely a necessary response to the imminent threat of danger from any source. In Proudman v Allen [1954] SASR 336 at 341, Hannan AJ stated: … the immunity for the consequences of such acts of interference is not limited to persons having an interest in the chattels concerned or a duty to preserve them, but extends to everyone who acts reasonably in a real emergency for the purpose of saving the goods of another from damage or destruction, whether he or she derives or is likely to derive any pecuniary advantage from the action or not, or is fulfilling any legal obligation.

6.40 The defence of necessity requires that reasonable steps were taken to protect a person or property from harm even if, in so doing, damage is caused to another. For the defence to be successful there must be: an imminent threat of grave harm to the plaintiff, property or goods; a reasonable apparent necessity for taking such action; and no fault on the part of the defendant for creating the imminent harm.

Imminent Threat 6.41 For the defence to apply there must be a real and imminent threat of harm: Cresswell v Swirl [1947] 2 All ER 730 at 732. An imminent threat is one that is about to happen. For example, in Cope v Sharpe (No 2) [1912] 1 KB 496, there was an imminent threat of property being destroyed as a fire was approaching. In Cresswell v Swirl, the imminent threat was a trespassing dog renewing its attack on the defendant’s animals if not stopped. However, in London Borough of Southwark v Williams [1971] Ch 734, there was insufficient urgency and threat of peril to allow it as a defence to destitute squatters trespassing in empty council dwellings. Lord Denning MR said (at 744): [I]f hunger were once allowed to be an excuse for stealing, it would open a way through which all kinds of disorder and lawlessness would pass. So here. If homelessness were once admitted as a defence to trespass, no one’s house would be safe. Necessity would open a door which no man could shut.

Reasonable Necessity 6.42 The interference by the defendant must be the result of reasonable steps being taken to protect the lives or property of the public. The steps taken to eliminate the danger must be reasonable in all of the circumstances: Cresswell v Swirl [1947] 2 All ER 730; Murray v McMurchy [1949] 2 DLR 442. Police, for example, may need to act out of necessity to capture criminals (Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; 2 All ER

985) or otherwise to protect the public: Dehn v Attorney-General [1988] 2 NZLR 564. In Proudman v Allen [1954] SASR 336, the defendant’s act of opening the door of the plaintiff’s runaway car and steering it away from other parked vehicles was justified even though as a result, the car ran off a cliff into the sea. [page 121] In Cope v Sharpe (No 2) [1912] 1 KB 496, the defendant entered the plaintiff’s land to start a firebreak to prevent an existing fire from spreading to his employer’s property. Setting fire to the heather was held to be reasonable in the circumstances and so justified. Similarly, the defendant’s act of interference with the plaintiff’s vessel by towing it away was justified as necessary to prevent destruction of the defendant’s wharf in Beckingham v Port Jackson & Manly Steamship Co (1957) SR (NSW) 403.

Imminent Threat Not Due to Defendant’s Negligence 6.43 Where the need to act out of necessity has been brought about by the defendant’s own actions or own negligence, the defence of necessity will not be available. In Rigby v Chief Constable of Northamptonshire [1985] 1 WLR 1242; 2 All ER 985, the police fired gas canisters into the plaintiff’s gunsmith shop where a dangerous psychopath was hiding. Despite knowing that this person had spread inflammable powder on the floor of the shop, which could be ignited by the heated gas canisters, the police failed to ensure that adequate fire-fighting equipment was available. The shop burnt down and, despite the emergency situation, the defence of necessity was not allowed due to the negligence of the police. See also Simon v Condran [2013] NSWDC 32, where

the plaintiff was claiming damages for being bitten by the defendant’s dog. The defendant claimed that at the time the plaintiff was trespassing on the land, a defence under the relevant legislation in respect of dogs. The plaintiff argued that the trespass was necessary to stop a fight between her dog and the defendant’s (the emergency). The court held that it was the plaintiff’s own negligence, more than just inattention or mere inadvertence, that allowed the emergency to arise and therefore the defence of necessity did not apply.

Medical Necessity 6.44 The defence of necessity often arises in actions of trespass to the person against doctors arising from operations. This was considered in detail in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1, in relation to medical treatment and a category of necessity in which assistance is provided out of necessity to another without their consent. The House of Lords held that necessity of this kind required: a necessity to act when it was not practicable to communicate with the assisted person; and the act of necessity must be such as a reasonable person would take, in all the circumstances, when acting in the best interests of the assisted person. In Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961, the English Court of Appeal applied the doctrine of necessity to hold that an operation to separate twins was needed. The court held that the evil inflicted (the death of one twin) was not disproportionate to the evil avoided (the death of both twins). Therefore, by the doctrine of necessity, the death of the twin as a result of the operation was necessary to avoid a greater evil in the death of both of the children. See also Queensland v Nolan [2002] 1 Qd R 454 where, in similar circumstances, the Queensland Supreme Court held that the defence of necessity did not apply to the Criminal Code, but

approved the approach in Re A (Children) (Conjoined Twins: Surgical Separation). [page 122]

10

Defences Specific to Trespass to Personal Property

Jus Tertii 6.45 In respect of cases where title to the goods, that is ownership, is in issue, the defence of jus tertii may be raised: Banks v Ferrari [2000] NSWSC 874 at [85] and [120]. Jus tertii may be raised if the defendant alleges that the right to immediate possession is vested in a third party: Leake v Loveday (1842) 4 Man & G 972; 134 ER 399. The defence was explained by Henchman J in Henry Berry & Co Pty Ltd v Rushton [1937] SR Qld 109 at 119: [A]lthough where the plaintiff was in actual possession of the goods when the defendant by a wrongful act got possession of them the defendant can plead the jus tertii only in certain cases … it is otherwise when the plaintiff was not in actual possession when the wrongful act was done. When the plaintiff was not in actual possession, but relies upon his right to possession, he must recover on the strength of his title, and the defendant may, under a plea of not guilty or not possessed, show that the plaintiff has no right to immediate possession because that right is in some other person.

However, jus tertii can only be raised by a defendant whose title to sue derives from the third party with better title. In Armory v Delamirie (1722) 1 Stra 505; 93 ER 664, a chimney sweep’s boy (the finder) found a jewelled ring and took it to a jewellery shop for valuation. The jeweller’s apprentice removed the jewel from the ring after weighing it and returned only the setting. He made an offer for it that was refused. The finder sued the owner of the shop in conversion for the value of the jewel. It was held that jus tertii did

not apply as the defendant was not claiming title to the goods through a third party, but merely asserting that the finder was not the true owner of the ring.

Loss of Possession 6.46 In conversion, the defendant may avoid liability if they can show that possession is no longer retained and that the loss of possession was not due to a positive act on the defendant’s part: Ashby v Tolhurst [1937] 2 KB 242. In conversion, a negligent subsequent loss of possession prevents conversion arising, but a negligent loss will not prevent detinue applying in an appropriate case.

Distress Damage Feasant 6.47 An occupier of land may detain goods that are unlawfully on their land and causing damage, until compensation is paid for any damage caused: Gilchrist, Watt & Cunningham v Logan [1927] St R Qd 185. Therefore, an occupier of land may claim that the possession of the plaintiff’s goods is due to distress damage feasant. This self-help remedy has many restrictions. It is not available if the owner of the goods is on the land: Tow & Salvage Ltd v Murray [1984] 2 NZLR 144; Swenson v Shire of Drayton [1932] St R Qd 98. It may not be claimed if the chattels are no longer on the land: Clement v Milner (1880) 3 Esp 95; 170 ER 550. Although distress damage feasant originally was used for damage caused by straying livestock, distress in respect of livestock has been abolished or modified in some jurisdictions: [page 123] Civil Law (Wrongs) Act 2002 (ACT) s 213; Animals Act 1977 (NSW) s 5; Law

of Animals Act 1962 (Tas) Pt II; Impounding of Livestock Act 1994 (Vic) ss 9–11.

11

Statutory Authority

6.48 Where a statute expressly authorises the doing of an act by a person, no action in tort will lie against that person for doing the act authorised by statute. For example, s 80(9B) of the Transport Operations (Road Use Management) Act 1995 (Qld) states that a person required by a police officer to give a specimen of blood must allow a health care professional to take the specimen, and s 484 and Sch 3 of the Telecommunications Act 1997 (Cth) authorise entry onto land to inspect, install or maintain a facility of the communications carrier. However, if a person is authorised by statute to be on the plaintiff’s property and a wrong is then committed, the law deems it to be a trespass from the initial entry under the doctrine of trespass ab initio: see 4.38. 6.49 Whether there is statutory authority will depend upon the effect of the statute in question: O’Brien v Shire of Rosedale [1969] VR 645. There is a presumption not to interfere with common law rights and so the onus is upon the defendant claiming the statutory authority to establish that the invasion of another’s rights is sanctioned by statute: Allen v Gulf Oil Refining Ltd [1981] AC 1001; Amstad v Brisbane City Council & Ward (No 1) [1968] Qd R 334. 6.50 Where public bodies are authorised to carry out some activity that causes damage, no liability will arise unless the activity is carried out negligently. Only clear words in the statute indicating that a negligently performed activity will not attract liability will provide immunity from suit: Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 at 455 per Lord Blackburn; applied in Benning v Wong (1969) 122 CLR 249 at 256. See also Soanes v Plessing [1985] 2 Qd R 55.

In Coco v R (1994) 179 CLR 427; 120 ALR 415, the defendant had been convicted of a criminal offence for offering to bribe Commonwealth officers. The primary evidence against him was a series of tape recordings made by a listening device installed by the police on premises occupied by the defendant. The police had obtained an order from a judge, approving the installation of the device under the Invasion of Privacy Act 1971 (Qld). The defendant appealed against conviction, alleging the evidence against him was inadmissible because it had been illegally obtained. The High Court of Australia quashed his conviction. Mason CJ, Brennan, Gaudron and McHugh JJ held (at CLR 436–7; ALR 417–19): Every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right. In accordance with that principle, a police officer who enters or remains on private property without the leave or licence of the person in possession or entitled to possession commits a trespass unless the entry or presence on the premises is authorised or excused by law. Statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language … General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

[page 124] In Schneidas v Corrective Services Commission (NSWSC, Lee J, 8 April 1983, unreported), a prisoner on a hunger strike sought an injunction to restrain prison authorities from force-feeding him. Section 16(2) of the Prisons Act 1952 (NSW) provided that if a prisoner’s life or health was likely to be endangered by the failure to undergo medical treatment, the prisoner could be compelled to undergo the treatment. It was held that if the prisoner’s health had deteriorated to a crucial stage, force-feeding amounted to medical treatment and was authorised by the legislation. It was noted that the defence of necessity was unlikely to be available to the doctor.

6.51 In many cases, the relevant statute may provide for reasonable compensation to be paid for any financial loss or damage. If no compensation is provided for by the statute, the defendant must show the interference/damage was the inevitable consequence of implementing the statute: Manchester Corporation v Farnworth [1930] AC 171. In some cases, the statute in question may purport to prohibit a court from considering the matter: see Jones v Department of Employment [1989] QB 1.

12

Disciplinary Powers

6.52 Certain persons have common law rights to exercise some form of disciplinary control over others. For example, masters of ships may use reasonable force to restrain passengers and crew from hindering the safety of the vessel or those on board the vessel: Robinson v Balmain New Ferry Co Ltd [1910] AC 295. 6.53 Parents have a right to discipline children in a moderate and reasonable manner: Ramsay v Larsen (1964) 111 CLR 16. In R v Terry [1955] VLR 114 at 116, Scholl J stated: A parent has a lawful right to inflict reasonable and moderate corporal punishment on his or her child for the purpose of correcting the child in wrong behaviour, but there are exceedingly strict limits to that right. In the first place, the punishment must be moderate and reasonable. In the second place, it must have a proper relation to the age, physique and mentality of the child, and in the third place, it must be carried out with a reasonable means or instrument …

A person who stands in loco parentis to a child with the parent’s consent has delegated parental authority to discipline the child: Mansell v Griffin [1908] 1 KB 160. See also R v Kinloch (1996) 187 LSJS 124, where it was held that even if the nine-year-old child’s aunt was acting in loco parentis, prolonged hitting with a horse whip because the child had difficulty with reading could not be characterised as moderate and reasonable chastisement for misbehaviour.

6.54 Similarly, teachers have disciplinary powers over pupils, either because they are regarded as having had the parents’ disciplinary powers delegated to them, or because their powers derive from the power vested by the government in state school teachers to maintain control: Smith v O’Byrne (1894) 5 QLJ 126; R v Terry [1955] VLR 114. This inherent power of teachers overrides any express prohibition of corporal punishment by parents: Ramsay v Larsen (1964) 111 CLR 16 at 29. In many jurisdictions, the use of corporal punishment (physical force used to punish or correct) as a means of discipline is prohibited by government education authorities: [page 125] Education Act 2004 (ACT) s 7(4); Education Act 1990 (NSW) ss 35(2A) and 47(h); Education Act 2015 (NT) s 162; Education Act 1994 (Tas) s 82A; Education and Training Reform Regulations 2007 (Vic) reg 14; School Education Regulations 2000 (WA) reg 40(2).2 In Queensland, corporal punishment was abolished through policy of the Department of Education in 1995 (Department of Education, Qld, Annual Report, 1994-1995, at p 6) and is currently reflected in the Department of Education and Training’s ‘Safe, Supportive and Disciplined School Environment’ procedure.

13

Judicial Acts

6.55 It is a good defence to an action in tort that the defendant is a superior court judge who performed the tortious act in his or her judicial capacity within the jurisdiction of the court: Gerard v Hope [1965] Tas SR 15; Anderson v Gorrie [1895] 1 QB 668. Inferior judicial officers will be personally liable if they act beyond their jurisdiction: R v Manchester City Magistrates’

Court; Ex parte Davies [1989] QB 631; [1988] 1 All ER 910; Spautz v Butterworth (1996) 41 NSWLR 1. 6.56 Legislation exists to provide some immunity to judicial officers of inferior courts when acting in good faith in the performance of their duties: Magistrates Court Act 1930 (ACT) Pt 2.3; Judicial Officers Act 1986 (NSW) Pt 8A; Magistrates Act 1977 (NT) s 19A; Magistrates Act 1991 (Qld) s 51; Magistrates Court Act 1991 (SA) s 44; Justices Act 1959 (Tas) Pt XII; Magistrates’ Court Act 1989 (Vic) s 14; Magistrates Court Act 2004 (WA) s 37.

14

Execution of Process

6.57 A sheriff or other court officer acting under a writ of execution or warrant, which has been issued out of a superior court of record, has a good defence to an action in trespass, conversion or false imprisonment, even if the judgment upon which the process was based is invalid. It would seem such an officer may be liable if the writ or warrant is itself invalid. 6.58 Officials of inferior courts have a similar defence, provided the writ or warrant was properly issued and the subject matter of the judgment upon which the writ or warrant was based was itself within the inferior court’s jurisdiction. Failure to act in compliance with the process will attract personal liability: O’Connor v Sheriff of Queensland (1892) 4 QLJ 213.

15

Crown Authority

6.59 The Crown may raise the defence of act of state in respect of tortious acts against aliens committed outside the Commonwealth. This defence is not

available within the Commonwealth, except in the case of a tortious act committed against an enemy alien. [page 126] The Crown, furthermore, retains a prerogative to seize and destroy property of an individual for the defence of the realm. Compensation may be required unless the acquisition occurred during actual hostilities. Under the Commonwealth Constitution, the Commonwealth may not acquire property except upon just terms: see s 51(i).

16

Contributory Negligence

6.60 It has been generally assumed in Australia that contributory negligence is not available as a defence to an intentional tort: Fontin v Katapodis (1962) 108 CLR 177; Venning v Chin (1974) 10 SASR 299. In Horkin v North Melbourne Football Club Social Club [1983] 1 VR 153, the plaintiff Carlton AFL supporter went to a game between Carlton and North Melbourne. After the game, he went to the after-match room where free food and drink were provided by the North Melbourne club, even though he was not entitled to admission. Some time later, he was ejected from the club by employees of the defendant, the North Melbourne Football Club Social Club. The plaintiff alleged that the employees had intentionally committed the tort of battery by throwing him bodily from the club premises. The defendant argued that the plaintiff had committed the tort of trespass by going into the after-match room, and the tort of battery by striking the defendant’s employees, and that this tortious conduct constituted ‘fault’ on the plaintiff’s part for the purposes of the Victorian apportionment legislation. It was held

that the plaintiff’s trespass and battery would not have constituted ‘fault’ for the purposes of the apportionment legislation, because the extended definition applied to the defendant’s, but not the plaintiff’s, fault. Brooking J stated (at 157–8): But does contributory negligence operate to reduce damages in an action for battery? Trespass to the person may be either intentional or negligent, and accordingly there can be a negligent battery so far as the law of tort is concerned … “Fault” is defined in s 25 of the Wrongs Act 1958 [(Vic)] as: “negligence breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Part, give rise to the defence of contributory negligence”. … In Winter v Bennett [1956] VLR 612 at 622, Herring CJ and Barry J treat the first limb of the definition as concerned only with defendants. Whether or not this observation binds me, I am content to adopt it, for it accords with my own view … It follows that the defendant in the present case cannot rely on the torts of trespass to land and battery committed by the plaintiff to found an apportionment and that apportionment is not possible unless at common law the defendant to an action for battery could set up contributory negligence.

6.61 In Queensland, s 5 of the Law Reform Act 1995 defines ‘wrong’, for the purposes of contributory negligence, as an act or omission that gives rise to liability in tort for which the defence of contributory negligence is available under the common law. Therefore, the same argument would apply. [page 127] In Wilton v Commonwealth Trading Bank of Australia [1973] 2 NSWLR 644, the plaintiff solicitor employed a clerk who stole cheques belonging to the plaintiff and persuaded the defendant to make payment on them. The plaintiff sued the clerk and the defendant for conversion of the cheques. It was alleged that the plaintiff had been contributorily negligent by continuing to employ the clerk, even after he knew that he was dishonestly appropriating the plaintiff’s funds. Samuels J held that, as contributory negligence had not

been a defence to an action in conversion at common law, it could not give rise to apportionment under the legislation. In Venning v Chin (1974) 10 SASR 299 at 317, Bray CJ held: It is clear that contributory negligence could never be a defence to an intentional tort, or perhaps it would be preferable to say to the intentional consequences of a tort.

6.62 Therefore, it may be open to argue contributory negligence in respect of damages claimed for the unintentional consequences of the tort. In New South Wales v Riley (2003) 576 NSWLR 496, the respondent established that police officers had assaulted and falsely imprisoned him as well as trespassed on his land. The respondent had fractured his wrist while being transported and falsely imprisoned in the back of a police van. The Court of Appeal found that the fracture was a foreseeable consequence of the false imprisonment which was the intentional wrongdoing: at [102]. However, the court held that the fracture itself was not inflicted intentionally and was, in fact, an indirect consequence of the false imprisonment: at [105]. Hodgson JA stated (at [107]): I am inclined to the view that, once some direct interference is established so that an action for trespass does lie, even indirect consequences of that interference can be compensated in the action for trespass (although such action would not lie at all if there was no direct interference but only indirect consequences). However, where there are indirect and intentional consequences of the trespass, I think the better view is that the defence of contributory negligence is available in respect of those unintended consequences.

6.63 In relation to interferences with personal property, it has been argued that the plaintiff’s contributory negligence in failing to take reasonable care for the safety of the goods should permit a reduction of damages as a partial defence under apportionment legislation.3 However desirable that may be, the defence is not supported by any clear authority under the common law. There is, however, authority to the contrary: Farquharson Bros & Co v C King & Co [1902] AC 325; Day v Bank of New South Wales (1978) 18 SASR 163; 19 ALR 321; Australian Guarantee Corporation Ltd v State Bank of Victoria Commissioners [1989] VR 617.

[page 128]

17

Mistake, Insanity and Involuntarism

Mistake 6.64 Mistake is not a defence in cases of direct interference to persons or property. This is because the motive of the defendant is irrelevant in determining whether the defendant has committed an intentional act or acted without due care. Mistake arises where the actual conduct was intended under the erroneous notion that the conduct would not violate another’s right. For example: an auctioneer innocently selling goods under the mistaken belief that the person who delivered the goods for auction had title, is liable in conversion (Consolidated Co v Curtis & Son [1892] 1 QB 495); or a rail authority seizing plant and materials in the mistaken belief that it had the right to seize them, is liable in detinue (Egan v State Transport Authority (1982) 31 SASR 481); or a prison authority not releasing a prisoner on the correct release date in the mistaken belief that the prisoner is not due for release, is liable in false imprisonment: Cowell v Corrective Services Commission of New South Wales (1988) 13 NSWLR 714; R v Brockhill Prison; Ex parte Evans (No 2) [2000] 4 All ER 15.

Insanity and Involuntarism 6.65 In Weaver v Ward (1617) Hob 134; 80 ER 284, it was stated that ‘if a lunatic hurt a man, he shall be answerable in trespass’ and, therefore, ‘no man shall be excused of a trespass … except it be judged utterly without his fault’. Insanity is not in itself a defence to trespass, but because liability for trespass may depend increasingly upon proof of intention, it may be difficult to show

that such an element existed in a mentally ill person. In Morris v Marsden [1952] 1 All ER 925, the defendant violently attacked the plaintiff in the hallway of a hotel. The defendant was a certified lunatic at the time who was aware of the quality of his acts but did not know they were wrong. The defence failed because the defendant was capable of forming the necessary intention. A mentally ill person will be liable for assault if the nature and quality of the act was known, even though it was not known that it was morally wrong: Morris v Marsden; Carrier v Bonham [2002] 1 Qd R 474. 6.66 If the mental state is such as to render the defendant’s acts involuntary, then this may be a good defence, since a party will not normally be held responsible for involuntary acts unless personally responsible for causing their onset, for example through negligent failure to take necessary medication: Roberts v Ramsbottom [1980] 1 All ER 7.

18

Ex Turpi Causa Oritur Non Actio

6.67 The maxim ex turpi causa oritur non actio (no right of action arises from a base cause) embodies a rule of public policy excluding the benefits of the law to persons who have engaged in some base or illegal act. For example, a person seeking to sue in detinue or conversion who has obtained possession pursuant to an illegal contract will be denied a right of action: Thomas Brown & Sons Ltd v Fazal Deen (1962) 108 CLR 391. [page 129]

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis

Butterworths, Sydney, 2013, Ch 6. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 13. S Yeo, ‘Determining Consent in Body Contact Sports’ (1998) 6 TLJ 199.

1.

In Queensland, due to the application of s 245 of the Criminal Code to civil actions of battery and assault, lack of consent is an element to be proven by the plaintiff: see 3.42.

2.

For a discussion of discipline in schools, see D Butler and B Mathews, Schools and the Law, The Federation Press, Sydney, 2007, Ch 4.

3.

J Goldring, ‘The Negligence of the Plaintiff in Conversion’ (1977) 11 MULR 91.

[page 131]

Chapter 7 Intentional Damage to a Person 1

Introduction

7.1 The torts that encompass trespass to the person provide protection of a person’s bodily integrity: see Chapter 3. However, not all interferences to a person fall within one of these nominate torts, for example if the interference is intentional but not necessarily direct or the interference does not fall within a recognised trespass. Trespass to the person is not the only tortious action available to a plaintiff for intentional interferences. Other possible actions in tort that may impose liability upon a person include: the intentional infliction of psychiatric injury, commonly referred to as the Wilkinson v Downton tort; malicious prosecution; and privacy.

2

Intentional Infliction of Psychiatric Injury

7.2 Intentional infliction of psychiatric injury is one of the innominate torts in Australia: see 2.25. This innominate tort was first recognised in England in the decision of Wilkinson v Downton [1897] 2 QB 57, in which the defendant informed the plaintiff that her husband had been injured, causing her to suffer shock leading to physical illness. The act was done with the

intention of causing nervous shock. See also Janvier v Sweeney [1919] 2 KB 316; Johnson v Commonwealth (1927) 27 SR (NSW) 133 (husband beaten in front of wife before being taken away); Purdy v Woznesensky [1937] 2 WWR 116. 7.3 In 1937, the High Court of Australia in Bunyan v Jordan (1937) 57 CLR 1 restricted the principle to situations where the conduct is actually directed to the person injured with the intention of causing harm. In other jurisdictions there have been cases where the plaintiff was neither the immediate recipient of the harmful words nor a witness of physical harm being inflicted upon another. See, for example, Bielitski v Obadiak (1922) 65 DLR 627 (words relayed to the plaintiff through a series of intermediaries); Stevenson v Basham [1922] NZLR 225 (plaintiff overheard husband being threatened by landlord). However, in Carter v Walker (2010) Aust Torts Reports ¶82-076 at [264], it was noted that such cases [page 132] were ‘exceptional’ and ‘cases in which the person affected was within a group with whom the defendant had intended to communicate’. 7.4 The act complained of must be one which the defendant could foresee would cause harm of the particular type to a normal person, unless there was special reason to know of the delicate constitution of the plaintiff. For the facts to fit within the tort, mere fright is insufficient; the shock must be manifested in objective physical or psychopathological consequences. In Giller v Procopets (2008) 24 VR 1, it was emphasised that to establish the tort of intentional infliction of harm, the plaintiff must suffer a recognised psychiatric illness. In this case it was argued that the intentional infliction of mental distress was compensable. A majority of the Court of Appeal disagreed. Neave JA stated (at [473]):

It must be conceded that the law of torts operates inconsistently by providing compensation for intentional infliction of purely mental distress in torts such as defamation and false imprisonment, but not in the case of the tort of intentionally causing harm. However, the expansion of the Wilkinson principle to cover mental distress would also create inconsistencies. Over the past decade, legislatures across Australia have imposed limits on the availability and amount of damages recoverable in negligence for physical injury. It would seem anomalous to expand the possibility of recovering damages for hurt feelings, even when intentionally caused, at a time when recovery of damages for non-economic loss arising out of physical injury has become increasingly limited.

7.5 In Northern Territory v Mengel (1995) 185 CLR 307 at 347, the majority of the High Court held that the phrase ‘the intentional infliction of harm’ included: … acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton [1897] 2 QB 57, or which are done with reckless indifference as to the harm that is likely to ensue, as in the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.

In Wong v Parkside Health NHS Trust [2003] 3 All ER 932 at 938, Hale LJ stated: For the tort to be committed, as with any other action on the case, there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant’s interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not “mean” it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour.

See also Rhodes v OPO [2015] UKSC 32, where it was held that there must be an actual intention to cause distress to the plaintiff (claim that the publication of an autobiography by the father of the respondent would cause severe emotional distress and psychological harm to the child respondent). 7.6 In Carrier v Bonham [2002] 1 Qd R 474, the plaintiff sued in negligence and under the rule in Wilkinson v Downton for damages for the psychiatric illness caused by the defendant when, in an attempted suicide, he deliberately stepped in front of the bus that the plaintiff

[page 133] was driving. McPherson JA, with whom Moynihan J agreed, suggested that the innominate tort based on the decision in Wilkinson v Downton could be absorbed into the tort of negligence. His Honour stated (at 484): The feature that is often singled out as peculiar about Wilkinson v Downton is that it was an intentional act which had reasonably foreseeable consequences that were apparently not in fact foreseen by the defendant in all their severity; but that is, as R S Wright J pointed out in Wilkinson v Downton, “commonly the case with all wrongs”. Most everyday acts of what we call actionable negligence are in fact wholly or partly a product of intentional conduct. Driving a motor vehicle at high speed through a residential area is an intentional act even if injuring people or property on the way is not a result actually intended. Wilkinson v Downton is an example of that kind. The defendant intended to speak the words in question to the plaintiff’s wife. Even if he did not intend to inflict the harm on her that followed, or perhaps any harm at all, he was plainly negligent as regards the result that followed. It is only when injury ensues from inaction or omission to act that problems may still arise at common law about whether the wrong is, properly speaking, the act or conduct of the defendant. … What matters is whether the consequences of the conduct, whether foreseen or not, were reasonably foreseeable and are such as should have been averted or avoided. What we really have now is not two distinct torts of trespass and negligence, but a single tort of failing to use reasonable care to avoid damage however caused. Negligence, if narrowly understood, is something of a misnomer.

However, whether this can be taken as actually subsuming the rule of Wilkinson v Downton could be doubtful as the Court of Appeal did not need to decide this issue on appeal. Further, decisions since Carrier v Bonham continue to accept that a separate tort exists: see, for example, Giller v Procopets (2008) 24 VR 1; Nationwide News Pty Ltd v Naidu (2008) 71 NSWLR 471; Magill v Magill (2006) at [20]; Clavel v Savage [2013] NSWSC 775. 7.7 The Wilkinson v Downton action for intentional infliction of distress may be rarely used since its creation almost 100 years ago, but it continues to be of interest as litigants marshal and test out groups of actions to cover contemporary issues. For example, in Bradley v Wingnut Films Ltd [1993] 1 NZLR 415, a plaintiff sued for the shock and upset caused by the featuring of

the plaintiff’s family tombstone in a film that showed a lot of blood and body parts. 7.8 As this is an intentional tort, the civil liability legislation will not apply, removing the limits and threshold requirements in assessing damages for personal injury; see, for example, Civil Liability Act 2002 (NSW) s 3B (Act does not apply); Civil Liability Act 2003 (Qld) s 52(2)(a) (exemplary, punitive or aggravated damages may be awarded); Civil Liability Act 1936 (SA) s 51 (Act does not apply); Civil Liability Act 2002 (Tas) s 3B (Act does not apply); Civil Liability Act 2002 (WA) s 3A (Act does not apply).

3

Malicious Prosecution

7.9 The tort of malicious prosecution provides protection against improper use of legal procedures. Malicious prosecution is often linked with the trespass action of false [page 134] imprisonment as both involve restraint of liberty: see 3.46. The distinction between the two torts is: for false imprisonment, the restraint of liberty is directly imposed by the defendant acting personally, or through an agent; and for malicious prosecution, the restraint of liberty is indirectly imposed as a result of the defendant supplying false information to an independent party who then arrests the person. In Nye v New South Wales (2004) Aust Torts Reports ¶81-725 at 65,264, it was noted: Wrongful arrest and false imprisonment and malicious prosecution all involve an abuse of power. The former involve a deprivation of liberty, something which is regarded by the law as

serious. Malicious prosecution may or may not involve deprivation of liberty but it exposes the person the subject of the prosecution to the possibility of injury to reputation and conviction for a criminal offence. These consequences are also regarded by the law as serious.

7.10 It is arguable that should the Australian High Court abandon directness in favour of intention in distinguishing trespass actions from actions on the case, it may not draw the intentional tort of malicious prosecution within the embrace of trespass, notwithstanding its intentional nature and the logic of describing it as a trespass if intention is the criterion. This is because of the long-established independence of the tort and its elements and the very strong statements distinguishing malicious prosecution from false imprisonment. The strength in history of the comparative treatment may be sufficient to survive the rationalisation in any move to intention. 7.11 In A v New South Wales (2007) 230 CLR 500; 233 ALR 584 at [1], the High Court stated the elements of the action: 1.

that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the plaintiff by the defendant;

2.

that the proceedings terminated in favour of the plaintiff;

3.

that the defendant, in initiating or maintaining the proceedings acted maliciously; and

4.

that the defendant acted without reasonable and probable cause.

As the tort of malicious prosecution is an action on the case, the plaintiff must have suffered damage and bears the onus of proving the elements.

Proceedings Initiated Against the Plaintiff by the Defendant 7.12 The defendant must be active in the prosecution of the plaintiff. The plaintiff’s prosecution must have been counselled, procured or continued by

the defendant: Danby v Beardsley (1878) 43 LT 603; Commonwealth Life Assurance Society Ltd v Brian (1935) 53 CLR 343. 7.13 A distinction is made between initiating a prosecution and providing information which leads to the prosecution. If the defendant provides information and prosecution of the plaintiff is the result, the prosecution is regarded as having been commenced by the independent lawful authorities. For example, in Evans v London Hospital and Medical College [1981] 1 All ER 715, a pathologist and toxicologists in a hospital’s forensic [page 135] medicine department gave results of a post-mortem to police, who charged the plaintiff with murder. There was no malicious prosecution because the police decided to prosecute quite independently of the information provided. It is necessary that the defendant commit some positive conduct to maintain the prosecution of the plaintiff, for example give false evidence to support the prosecution: Sahade v Bischoff [2015] NSWCA 418 at [121]. See also New South Wales v Landini [2010] NSWCA 157 at [52]–[59]. However, if the prosecutor is unduly influenced by the person providing the information, that person may be regarded as the true instigator of the prosecution. In Martin v Watson [1996] AC 74; [1995] 3 All ER 559, a woman made a complaint to the police that her neighbour had indecently exposed himself to her. She gave a witness statement and it was recorded that she was willing to attend court and give evidence. The plaintiff was arrested but at trial, no evidence was offered by the prosecution and the charge was dismissed. The House of Lords held (at AC 86–7; All ER 567–8): Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position

here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.

In Mahon v Rahn (No 2) [2000] 1 WLR 2150, a distinction was made between a simple scenario where a complaint is made to the police, and cases where evidence is provided from a variety of sources and the police must exercise a discretion as to whether there is sufficient evidence against the plaintiff. In a simple case, Brooke LJ thought the following questions needed to be determined (at [269]): (1) Did A desire and intend that B should be prosecuted? (2) If so, were the facts so peculiarly within A’s knowledge that it was virtually impossible for the professional prosecutor to exercise any independent discretion or judgment? (3) Has A procured the institution of proceedings by the professional prosecutor, either by furnishing information which he knew to be false, or by withholding information which he knew to be true, or both?

See also Cumberland v Clark (1996) 39 NSWLR 514 and A v New South Wales (2007) 230 CLR 500; 233 ALR 584 (involving a public prosecution, not private). 7.14 Although the tort of malicious prosecution is commonly raised in regards to criminal prosecutions, the prosecution may include bankruptcy and winding-up petitions. Traditionally, it has not included civil proceedings, although this has been questioned: Little v Law Institute of Victoria [1990] VR 257; Lloyd v Fanning (VSC, McDonald J, 4 November 1996, unreported).

Proceedings Terminated in Favour of Plaintiff 7.15 The plaintiff must prove that the prosecution against them was terminated in their favour. If the proceedings are such that termination in the plaintiff’s favour is not possible, [page 136]

for example where the Attorney-General refuses to issue an indictment (nolle prosequi), an exception is made: Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 542. See also Beckett v New South Wales (2013) 248 CLR 432; 297 ALR 206, where the High Court held that a termination of the prosecution by the Director of Public Prosecutions under a statutory power could not be distinguished from a termination of the prosecution by the entry of a nolle prosequi by the Attorney-General. The High Court also held that when the proceedings are terminated by a nolle prosequi, there is no need for the plaintiff to prove their innocence in the civil action, overruling the exception from the decision of Davis v Gell (1924) 35 CLR 275; 31 ALR 49. If the plaintiff was convicted, this element will fail even if only a bond is imposed: Everett v Ribbands [1952] 2 QB 198. Similarly, if the plaintiff is pardoned, this is not termination of the proceedings in the plaintiff’s favour: Re Royal Commission on Thomas Case [1982] 1 NZLR 252.

Malice 7.16 Malice on the part of the defendant must be established. Malice means the defendant having any improper motive which may include, but is not limited to, ill will: Brown v Hawkes [1891] 2 QB 718. In A v New South Wales (2007) 230 CLR 500; 233 ALR 584 at [91], the High Court stated: What is clear is that, to constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law — an “illegitimate or oblique motive” (Gibbs v Rea [1998] AC 786 at 804). That improper purpose must be the sole or dominant purpose actuating the prosecutor (Troridge v Hardy (1955) 94 CLR 147 at 162; [1956] ALR 15 at 24 per Kitto J; cf Williams v Spautz (1992) 174 CLR 509 at 529; 107 ALR 635 at 648–9 per Mason CJ).

Absence of Reasonable and Probable Cause 7.17 This element involves both an objective and subjective assessment. There must be reasonable grounds for the institution of the proceedings

against the plaintiff, and the defendant must have had an honest belief in the propriety of initiating the prosecution: A v New South Wales (2007) 230 CLR 500; 233 ALR 584; Noye v Robbins [2010] WASCA 83 at [116]. This is assessed on the evidence available at the time the prosecution was commenced or maintained: A v New South Wales at [59]. However, it is not necessary that the plaintiff establish their innocence: Commonwealth Life Assurance Society Ltd v Smith (1938) 59 CLR 527 at 542; Beckett v New South Wales (2013) 248 CLR 432; 297 ALR 206 at [2]. In A v New South Wales (2007) 230 CLR 500; 233 ALR 584, the appellant had been acquitted of charges of homosexual intercourse, contrary to s 78H of the Crimes Act 1900 (NSW). The second respondent, a police officer, was the informant for the charges. The High Court had to consider whether there was reasonable and probable cause for the charges against the appellant. It was noted by the court that the second appellant was performing a public duty and his conduct was being overseen by other authorities. However, the court stated (at [38]): [page 137] [J]ustice requires that the prosecutor, the person who effectively sets criminal proceedings in motion, accept the form of responsibility, or accountability, imposed by the tort of malicious prosecution. In so far as one element of the tort concerns reasonable and probable cause, the question is not abstract or purely objective. The question is whether the prosecutor had reasonable and probable cause to do what he did; not whether, regardless of the prosecutor’s knowledge or belief, there was reasonable and probable cause for a charge to be laid. The question involves both an objective and a subjective aspect.

Further, the court stated (at [80]): In cases where the prosecutor acted on material provided by third parties, a relevant question in an action for malicious prosecution will be whether the prosecutor is shown not to have honestly concluded that the material was such as to warrant setting the processes of the criminal law in motion. … In deciding the subjective question, the various checks and balances for which the processes of the criminal law provide are important. In particular, if the prosecutor was shown to be of the view that the charge would likely fail at committal, or would likely be

abandoned by the Director of Public Prosecutions, if or when that officer became involved in the prosecution, absence of reasonable and probable cause would be demonstrated. But unless the prosecutor is shown either not to have honestly formed the view that there was a proper case for prosecution, or to have formed that view on an insufficient basis, the element of absence of reasonable and probable cause is not established.

Damage 7.18 Damage suffered by the plaintiff is essential because the tort is an action on the case. The damage must be the result of the malicious prosecution: New South Wales v Landini [2010] NSWCA 157. However, damage for malicious prosecution is restricted to: damage to the person (for example, restraint to liberty); damage to property (for example, economic loss); and damage to reputation. See Berry v British Transport Commission [1962] 1 QB 306. Costs related to the proceedings are not considered to be damage for the purposes of the action, unless they relate to the defence of a criminal charge: Berry v British Transport Commission. In Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (2001) 109 FCR 280 at [34], it was explained that the difference in the taxed costs of the proceedings and the actual costs incurred could not be claimed as: Where the entitlement to costs has been determined in proceedings, the issue ought not be reventilated in the guise of an action for malicious prosecution.

Remedy 7.19 A plaintiff who establishes the tort of malicious prosecution may be awarded compensatory damages for the loss resulting from the malicious prosecution, as well as aggravated and/or exemplary damages: see Chapter 15. It may be possible to be granted injunctive relief if there is evidence of a continuing threat of malicious prosecution: see National Australia Bank v McFarlane (2005) Aust Torts Reports ¶81-819.

[page 138]

4

Privacy

7.20 Concerns as to how the law may protect the privacy of an individual continue to be high priority in Australia. In light of developing technologies, for example, the increasing use of remotely piloted aircraft (drones), the potential to infringe upon a person’s seclusion is ever increasing.1 7.21 In 2014, the Australian Law Reform Commission (ALRC) released its final report on privacy, Serious Invasions of Privacy in the Digital Era.2 The report set out nine principles recommended to guide the development of a policy framework for reform of the law of privacy. It recommended that a new piece of legislation be enacted that creates a statutory cause of action for serious invasions of privacy and that the cause of action be a tort: recommendation 4 (pp 59–72). It is interesting to note that a previous report in 1983 also proposed the enactment of legislation to protect privacy, but did not result in any protection for intrusion into a person’s seclusion.3 7.22 Although there is no common law tort of privacy that has been recognised by an appellate court in Australia, there are various rights that may be enforced that may have the effect of protecting a plaintiff’s privacy. For example, there is protection against being harassed and recorded through various actions (such as trespass and nuisance) as well as legislation controlling the use of surveillance devices. In Bernstein v Skyviews & General Ltd [1978] QB 479, the plaintiff’s real concern was that any photograph taken of his stately home could fall into criminal hands; by suing for trespass to land, he sought to protect his privacy. The court held that there was no trespass at the height the aeroplane passed over the property and there was no right in law to be protected from such invasions of privacy. Another example is Emcorp Pty Ltd v Australian

Broadcasting Corporation [1988] 2 Qd R 169, where an injunction was granted to restrain the defendant from broadcasting any of the film videoed at the plaintiff’s office while the defendant was trespassing.

Development of a Tort of Privacy under the Common Law 7.23 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479 is often cited as authority for the proposition that a cause of action for breach of privacy does not exist in Australia. However, in Church of Scientology v Woodward (1982) 154 CLR 25 at 68; 43 ALR 587 at 609, Murphy J observed that ‘unjustified invasion of privacy’ was one of the ‘developing torts’. In Victoria Park Racing and Recreation Grounds Co Ltd v Taylor, the plaintiff claimed an injunction to restrain broadcasting of descriptions of races which were run on its land but called from a platform erected on adjoining land. The court was faced with the question [page 139] ‘How far can one person restrain another from invading the privacy of land which he or she occupies, when such invasion does not involve actual entry on the land?’ A majority of the High Court held there was no legal right in the plaintiff not to be overlooked and, therefore, there was no protection. However, under statute, there was no unfettered right to broadcast commercially and the particular broadcasts were subsequently controlled under the regulatory provisions of the broadcasting legislation. 7.24 The first steps towards the recognition of a possible tort of invasion of privacy under the common law can be found in the decision of the High Court in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd

(2001) 208 CLR 199; 185 ALR 1. The respondent operated a fully licensed abattoir facility where brushtail possums were stunned, slaughtered and prepared for export to Asian countries. Unknown persons trespassed onto the property and set up video cameras which were later retrieved by another act of trespass. A video of the possums being stunned and slaughtered was offered to the appellant for broadcast on television. The respondent sought an interlocutory injunction to prevent the broadcast, claiming that the footage would impact on the company’s goodwill and cause financial harm. It was claimed that to broadcast the video would be an invasion of the respondent’s privacy. The High Court held that the decision of Victoria Park Racing and Recreation Grounds Co Ltd v Taylor did not stand in the way of the development of an enforceable right of privacy: at [107] per Gummow and Hayne JJ. However, the fact that the respondent was a corporation went against the respondent. The High Court referred to the law of privacy in the United States where the law does not extend protection to corporations as ‘[t]he tort of invasion of privacy focuses on the humiliation and intimate personal distress suffered by an individual as a result of intrusive behaviour’: NOC Inc v Schaefer 484 A 2d 729 (1984) at 730–1, cited in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd at [127]. 7.25 Since Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, the Queensland District Court, in Grosse v Purvis (2003) Aust Torts Reports ¶81-706, took the ‘bold step’ of being the first court in Australia to hold that a civil action for damages based on an individual’s right to privacy exists. Senior Judge Skoien considered that the High Court decision of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd removed the barrier said to prevent the finding of such a right. In recognising the tort of invasion of privacy, his Honour (at [444]) considered that the essential elements were: (a) a willed act by the defendant, (b) which intrudes upon the privacy or seclusion of the plaintiff,

(c) in a manner which would be considered highly offensive by a reasonable person of ordinary sensibilities, (d) and which causes the plaintiff detriment in the form of mental, psychological or emotional harm or distress or which prevents or hinders the plaintiff from doing an act which he or she is lawfully entitled to do.

It was noted that the defence of public interest could be available to an action of invasion of privacy, but not in the case before the court. Damages for the invasion of privacy were assessed at $108,000. A total of $178,000 was awarded, including aggravated and exemplary damages. The defendant lodged an appeal but the matter was settled before being heard. [page 140] 7.26 The decision of Grosse v Purvis is a decision of a district court, and no superior court in Australia has yet confirmed the tort, though some have noted the possibility of the tort: see Maynes v Casey [2011] NSWCA 156 at [36] (‘case therefore provides an inappropriate vehicle to consider any possible developments of the law with respect to intentional invasion of privacy’); Giller v Procopets (2008) 24 VR 1 at [167] (‘The existence of a generalised tort of unjustified invasion of privacy has not been recognised by any superior court of record in Australia. The development of such a tort would require resolution of substantial definitional problems’); Sands v South Australia [2013] SASC 44 at [614] (‘the ratio decidendi of the decision in Lenah is that it would require a further development in the law to acknowledge the existence of a tort of privacy in Australia’). 7.27 Grosse v Purvis was considered in Doe v Australian Broadcasting Corporation [2007] VCC 281. In that case, the plaintiff had been attacked and raped by her estranged husband who was charged and later imprisoned for the crimes. On the day his sentence was handed down, the Australian Broadcasting Corporation (ABC) broadcast news reports of the sentencing and identified the plaintiff and her estranged husband by name. The

publication of information, identifying a victim of a sexual offence, was a breach of s 4 of the Judicial Proceedings Reports Act 1959 (Vic). The plaintiff sought damages for breach of a statutory duty, negligence, breach of privacy and equitable compensation for breach of confidence. Hampel J stated that she also accepted the invitation of the High Court to take the next step, an incremental one, to develop ‘the recognition of the right to protection against, or provide remedy for, breach of privacy’: at [162]. The information published by the ABC was sufficiently personal or confidential, the plaintiff having a reasonable expectation that the information would remain private. Publication was also unjustified, there being no public interest in the publication: at [163]. Damages were awarded for the plaintiff’s post-traumatic stress disorder caused by the publication and special damages for her past loss of earnings.

Law Reform 7.28 As noted previously (see 7.21), the ALRC had recommended a statutory tort of privacy be created: ALRC Report No. 123 (2014). The Commission recognised that the current law left many gaps or uncertainties in providing protection against invasion of privacy. For example, a defendant whose actions infringe a plaintiff’s privacy, and are done with the intention to cause emotional stress, are not actionable unless the plaintiff suffers a psychiatric illness: Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 417. Also, when personal information has been disclosed, emotional distress may not be considered sufficient to found an action in breach of confidence: see the discussion in ALRC Report No. 123 (2014) at [3.50]. 7.29 The recommendation is ‘that if a statutory cause of action is introduced, it should be in Commonwealth legislation, as this is the best way to ensure the action is available and consistent throughout Australia’: ALRC Report No. 123 (2014) at [4.6]. The proposed statutory action would not be part of the Privacy Act 1988 (Cth) as that piece of legislation

[page 141] is concerned with the regulation of data protection, whereas the proposed tort of privacy will apply to more than just privacy of information: at [4.9]. 7.30 The report recommends that the new tort encompass two types of interferences: physical intrusion into the plaintiff’s private space or intrusion by watching, listening to or recording the plaintiff’s private activities or affairs; and misuse of private information, for example through the disclosure or collection of private information about the plaintiff. The tort would only apply in circumstances where there is a reasonable expectation of privacy and when the intrusion is intentional or reckless. The tort is to be proven only if the invasion of privacy is regarded as serious; however, the plaintiff does not have to prove damage, overcoming the difficulties when the consequence of the invasion is emotional stress: see recommendations 5–8 at pp 9–10.

Other Jurisdictions 7.31 Actions for invasion of privacy have developed in different ways in New Zealand, the United Kingdom, Canada and the United States. In New Zealand, a tort of invasion of privacy has been recognised. In Hosking v Runting [2005] 1 NZLR 1 at [117], it was held that the publication of facts of the plaintiff’s life could be regarded as ‘highly offensive to an objective reasonable person’ and was actionable as the tort of invasion of privacy. See also C v Holland [2012] 3 NZLR 672, where the court held that the tort of privacy recognised in Hosking v Runting should be extended to include intentional intrusions upon a plaintiff’s seclusion. In that case, the defendant had secretly videoed the plaintiff in the shower, intentionally intruding into

her personal space and activity without consent, infringing her reasonable expectation of privacy and this was considered to be highly offensive to a reasonable person. In the United Kingdom, existing actions are being extended to provide protection in light of the Human Rights Act 1998 (UK), in particular the action of breach of confidence. In Douglas v Hello! Ltd (No 3) [2008] 1 AC 1; [2007] 4 All ER 545 at [118], Lord Hoffman stated: In recent years, English law has adapted the action for breach of confidence to provide a remedy for the unauthorised disclosure of personal information.

In that case the plaintiffs (Douglas) had contracted with a publisher of a magazine to provide the exclusive rights to photographs of their wedding. An unknown person at the wedding took unauthorised photographs which the publisher of Hello! magazine intended to publish. The plaintiffs sought an injunction to restrain the publication of the photographs. See also Campbell v MGN Ltd [2004] 2 All ER 995. In Canada, some provinces have enacted a statutory tort for invasion of privacy and in Ontario a common law action was recognised in the decision of Jones v Tsige (2012) ONCA 32. In the United States, the tort of privacy is well established, contained in the American Law Institute, Restatement of the Law Second, Torts (1977) § 652A. [page 142]

Further Reading Australian Law Reform Commission, Serious Invasions of Privacy in the Digital Era, Report No 123, Australian Government, Sydney, 2014. A Gray, ‘Wilkinson v Downton: New Work for an Old Tort to do?’ (2015) 23 Tort L Rev 127.

P Handford, ‘Intentional Negligence: A Contradiction in Terms?’ (2010) 32 Sydney Law Review 32. P Watson, ‘Searching the Overfull and Cluttered Shelves: Wilkinson v Downton Rediscovered’ (2004) 23 U Tas LR 264. N Witzleb, ‘A Statutory Cause of Action for Privacy? A Critical Appraisal of Three Recent Australian Law Reform Proposals’ (2011) 19 TLJ 104.

1.

See Parliament of Australia, House of Representatives Standing Committee on Social Policy and Legal Affairs, Eyes in the Sky: Inquiry into Drones and the Regulation of Air Safety and Privacy, Commonwealth of Australia, Canberra, 2014, Ch 4.

2.

ALRC, Serious Invasions of Privacy in the Digital Era, Report No. 123 (2014).

3.

See ALRC, Privacy, Report No. 22 (1983).

[page 143]

CHAPTER 8 The Negligence Action 1

Introduction

8.1 The tort of negligence has presented a unique challenge for the common law. It differs from the other torts because the scope of the protection it affords is not limited by either the interest which it protects or the particular type of harm it protects against. In comparison, a trespass to land action is only available where a person’s interest in the possession of land has been directly challenged, and a defamation action where a person’s reputation has been impugned. It is because of the all-embracing potential of the negligence action that there is a need for devices, controlled by the courts, to limit liability in negligence. Nevertheless, the prominence of the negligence action today, with its tendency to absorb or eclipse other forms of action, has led to it being described as ‘that most open-textured and therefore voracious’ of torts.1 8.2 To the person in the street, negligence means no more than carelessness, but the concept is more complex in law. Negligence, as a legal concept, is not the same as carelessness because it may consist of advertent as well as inadvertent acts and omissions. 8.3 The distinguishing feature of the negligence action is that it refers to conduct which objectively falls short of that required by society. In Tame v New South Wales (2002) 211 CLR 317; 191 ALR 499 at [8], Gleeson CJ noted: … in the context of the law of negligence, carelessness involves a failure to conform to a legal

obligation. It does not necessarily involve a mistake. It involves a failure to protect the interests of someone with whose interests a defendant ought to be concerned.

The tort is, therefore, not concerned with what the defendant knew, did or did not do, but what the ‘reasonable person’ in the defendant’s position would have known or done.

2

The Structure of a Negligence Action

8.4 For the purposes of legal analysis, the negligence action consists of three elements: the existence of a duty of care owed by the defendant to the plaintiff; [page 144] a breach by the defendant of the standard of care appropriate to that duty of care; and damage to the plaintiff caused by the defendant’s breach of the duty, provided the damage is within the defendant’s scope of liability (remoteness in law). 8.5 Despite the apparent simplicity of the division of the tort into these three elements, it must be acknowledged that the distinctions are not always easy to apply in practice. As Mason P commented in Harriton v Stephens (2004) 59 NSWLR 694 at [65]–[68], when discussing the contentious issue of whether disabled children had an action against the doctors whose negligence deprived the plaintiffs’ parents of the opportunity to terminate the pregnancy: Any survey of case law and legal commentary in this field shows that discussion is bedevilled by different views as to the legal concepts that are engaged. Some authorities speak in terms of strict logic, viewing the outcome as an inexorable

consequence of applying ostensibly neutral and universal principles of tort law, causation and compensatory damages. Others recognize the influence of policy. Some see the issue in terms of causation, others in terms of recoverable damages, others in terms of identifying the proper plaintiff to recover the damages. Many authorities talk in terms of a duty of care, although closer examination of this group discloses that some deny duty because of fundamental problems in assessing damages and/or problems in describing the nature of the injury inflicted. Labelling sometimes causes its own problems. These may include suggesting distinctions that do not exist and eliding those that do.

8.6 Often the parties to the action themselves argue their case in such a way as to make it difficult to separate out the elements of the action. In Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52 at [57], Gummow and Hayne JJ commented that the ‘present litigation was pleaded and conducted in such a fashion as to conflate asserted duty and breach of that duty and to make it inappropriate to decide on this appeal any issue respecting the existence or content of a duty of care’. See also the High Court decision in Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131, where the terms of the grant of special leave to appeal restricted the issue of whether the costs of raising a healthy child, born as a result of the defendant doctor’s negligence, was recoverable as a head of damages and allowed no consideration of whether a duty of care was owed in respect to that kind of damage.

Reasonable Foreseeability 8.7 The situation is complicated by the fact that reasonable foreseeability has found a role within each of the elements of duty, breach and damage: a duty is only owed to persons whom it is reasonably foreseeable will suffer damage by a lack of due care on the part of the defendant; the standard of care and the defendant’s breach of that standard are judged against conduct which is reasonable in the context of the foreseeable risk; and

compensation will flow only for damage which is a reasonably foreseeable consequence of the defendant’s negligence. [page 145] 8.8 However, although reasonable foreseeability arises at three distinct stages in a negligence action, each element progressively requires a less abstract and more particular examination of the concept as applied to the facts of a case. As Glass JA commented in Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 295, ‘a recognition has emerged that the foreseeability inquiry at the duty, breach and remoteness stages raises different issues which progressively decline from the general to the particular’. His Honour’s comments may be diagrammatically expressed as follows:

3

Overview of the Elements of the Negligence Action

Duty of Care

8.9 Until 1883, the element of duty of care was not significant in the negligence action. A common law duty in negligence only existed where the law already recognised a special relationship between the parties involving duties and obligations at common law. Certain relationships still today give rise to a recognised duty of care. For example, the law recognises that a doctor owes a duty of care to a patient (Roe v Minister of Health [1954] 2 QB 66) and that a student will be owed a duty of care by the school authority: Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577. The recognised duties of care, often referred to as the ‘established duties’, are considered in Chapter 9. 8.10 In Heaven v Pender (1883) 11 QBD 503, Brett MR attempted to provide a general test for duty of care that could be applied to relationships falling outside of recognised precedent. His Lordship held that when a person was in circumstances in which they should recognise that the failure to exercise care and skill would give rise to risk of injury to another, there was a duty to exercise that care and skill. However, this general test was not adopted and it was not until the House of Lords’ decision in Donoghue v Stevenson [1932] AC 562, that a more general test for duty became established law. As Kirby J commented in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 at [99]: Before Donoghue v Stevenson, that is basically the way in which tort liability, when framed in negligence, was determined. To discover whether liability existed at law, it was necessary to look for a case on the given relationship (or judicial authority bearing some similarity).

[page 146] 8.11 The facts of Donoghue v Stevenson [1932] AC 562 were that the plaintiff and a friend went to a café and the friend bought a bottle of ginger beer which was manufactured by the defendant. The owner of the café poured some of the ginger beer into a glass from which the plaintiff drank. When the

last portion of the beer was poured, the remains of a decomposed snail fell from the bottle. The plaintiff suffered shock at the sight of the snail as well as gastroenteritis from consuming the contaminated ginger beer. The plaintiff alleged that the defendant had caused her illness and shock by failing to take reasonable care in the manufacture of its product. The defendant denied liability, arguing that the law did not recognise the relationship of manufacturer and consumer as one giving rise to a duty of care. A majority of three to two in the House of Lords held that a duty of care was owed even though the relationship was not a specific one that gave rise to a duty. A general test for duty of care was established, Lord Atkin’s judgment being the most famous and most often quoted. The original and inductive reasoning of Lord Atkin in Donoghue v Stevenson was an attempt to bring the recognised ‘special relationships’ within a single formula and to provide a unified general principle by which duty of care cases could be determined in the future. His Lordship therefore argued (at 580) that: … in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, … is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

In Australia, the first High Court decision to apply the Lord Atkin formula, referred to as the ‘neighbour’ principle, was Grant v Australian Knitting Mills Ltd [1936] AC 85, which involved the plaintiff doctor contracting dermatitis from sulphur found in a pair of new underpants which had been

manufactured by the defendant and which the plaintiff had not washed before wearing. 8.12 However, the ‘neighbour’ principle is deceptively simple. It may identify when a duty may be owed, but it does not determine the nature or scope of the duty of care. Also, as the test is based upon reasonable foreseeability, its application may have very wide effect as a simple act of negligence may expose a defendant to indeterminate liability in terms of time, damages and number of plaintiffs. To overcome these issues, which arise when the loss suffered is not physical or a consequence of the physical damage, attempts have been made to qualify the ‘neighbour’ principle. 8.13 The High Court of Australia has over the years adopted a variety of approaches to this issue, but as McHugh J stated in Woolcock Street Investments Pty Ltd v CDG Pty [page 147] Ltd (2004) 216 CLR 515; 205 ALR 522 at [45], ‘confusion approaching chaos has reigned in the law of negligence’. The approach of the High Court to relationships not within the classes of recognised duties of care, referred to as ‘novel cases’, are discussed in Chapter 10.

Breach of Duty 8.14 The concept of breach in the negligence action is concerned with whether the defendant achieved the standard of care as required by the law. The breach element requires that the risk be foreseeable and considers what a reasonable person would do in response to that risk (calculus of negligence): Wyong Shire Council v Shirt (1980) 146 CLR 40. The calculus of negligence involves a consideration of many factors, including the probability of the

harm occurring if precautions were not taken, the possible seriousness of the harm and whether the defendant could have done anything differently. These factors are discussed in detail in Chapter 11. 8.15 This element of the negligence action came under scrutiny in the Review of the Law of Negligence — Final Report2 (the Ipp Report), as the evidence was that courts had not been correctly considering the issue of foreseeability. Under the common law, the question of whether the defendant ought to have taken precautions against a foreseeable risk, was at the level of risk being more than ‘far-fetched and fanciful’, as laid down by Mason J in the High Court decision of Wyong Shire Council v Shirt (1980) 146 CLR 40. However, the Ipp Report found that lower courts had a tendency to find that it was negligent not to take precautions based upon the risk being reasonably foreseeable, without taking into account the calculus of negligence: at 7.14. In New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [7], Gleeson CJ stated: There may be cases where courts have lost sight of the ultimate criterion of reasonableness, or have adopted a mechanistic approach to questions of reasonable foreseeability, risk management or risk avoidance … There have been occasions when judges appear to have forgotten that the response of prudent and reasonable people to many of life’s hazards is to do nothing.

8.16 The Ipp Report went as far as to say that misapplication of the test in Wyong Shire Council v Shirt had ‘brought the law of negligence into disrepute’: at 7.14. As a result, the civil liability legislation in every Australian jurisdiction adopted the Ipp Report recommendation (recommendation 28) in relation to breach of the duty of care. A defendant will not be in breach of their duty of care unless the risk of harm was foreseeable, the risk was not insignificant and a reasonable person in the position of the defendant would have taken precautions: see Chapter 11.

Damage

8.17 As an action on the case, a plaintiff cannot succeed in negligence unless they have suffered damage. As Brennan J stated in John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218 at 241; 36 ALR 466 at 484, ‘duty of care is a thing written on the wind unless damage is [page 148] caused by the breach of that duty; there is no actionable negligence unless duty, breach and consequential damage coincide’. However, there are limits on what is recognised as damage by the law, and in negligence there are limits on how far a court will impose liability by reference to policy. 8.18 The damage element requires that the plaintiff has suffered a kind of damage recognised by the law and that in fact the breach of duty caused the damage. Further, the kind of damage suffered must be the reasonably foreseeable consequence of the breach and it must be appropriate that liability for that damage be imposed upon the defendant (scope of liability). 8.19 Factual causation requires a consideration of whether the plaintiff would have suffered the damage ‘but for’ the defendant’s breach: March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423. There are various common law tests for factual causation; however, the civil liability legislation has legislated that the breach of duty must be a ‘necessary condition of the occurrence of the harm’ and the High Court has held that this is the ‘but for’ test: Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420. 8.20 Under the common law, a defendant may be liable for all of the plaintiff’s loss if their breach materially contributed to the loss: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fairchild v Glenhaven Funeral Services Ltd [2002] 3 WLR 89. The Ipp Report identified that this was a relaxation of factual causation as it allowed causation to be established even

though it could not be proved in the balance of probabilities: at 7.31. Where there is an ‘evidentiary gap’ and therefore the ‘but for’ test is unsatisfactory, normative issues come into play, including a consideration of whether the responsibility of the loss should be imposed upon the negligent party: recommendation 29. All Australian jurisdictions, except for the Northern Territory, adopted this approach in the civil liability legislation. The element of damage is examined in detail in Chapter 12.

4

Questions of Law and Fact

8.21 It is an accepted feature of the common law tradition that questions of law act as control devices, permitting judges to impose limitations upon the potential scope of the negligence action. Questions of law, therefore, are the device through which principles of law are developed and which prevent the negligence action being frozen in a particular social, economic and political point of time. It is upon questions of law that precedents are established. 8.22 Questions of law arise at each of the three stages of a negligence action: It is a question of law whether the defendant owes the plaintiff a duty of care. The standard of care in the element of breach is determined by the court as it is a question of law. Whether liability for the damage should be imposed upon the defendant as the harm is within the defendant’s scope of liability is a question of law. [page 149]

8.23 In contrast, questions of fact (the jury questions) are restricted to the issues in dispute between the parties in the individual case and have no legal significance in future cases. 8.24 Another important distinction between questions of fact and of law is that, on questions of law, an appellate court will not hesitate to overturn a decision if an incorrect principle of law has been applied, regardless of whether the trial was held with or without a jury. With questions of fact that have been decided by a jury, an appellate court may only interfere if the jury has reached a conclusion which is so strongly against the weight of the evidence that no reasonable jury could have reached it: Commissioner for Railways v Small [1957] ALR 529; Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41; Swain v Waverley Municipal Council (2005) 213 ALR 249. As to the circumstances when new or ‘fresh’ evidence may be presented on an appeal, see Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Richards v Forsyth [2007] VSCA 227. See 11.89 for a discussion of appeals on the findings as to breach of duty, a question of fact. 8.25 The restrictions which apply to an appeal from a question of fact decided by a trial judge sitting without a jury are less onerous, although an appellate court will still be hesitant to interfere with a decision where the trial judge has had the advantage of hearing and observing the witnesses at first hand. For an example of a Court of Appeal allowing an appeal on the facts, against a trial judge sitting alone, see Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 and the High Court decision in Suvaal v Cessnock City Council (2003) 200 ALR 1. 8.26 However, the significance of the distinction between questions of law and questions of fact has been eroded by the trend, in recent years, to limit the availability of jury trials in civil matters. For example, in Queensland, juries are not available in actions involving damages for personal injury: Civil Liability Act 2003 s 73.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 7. M K Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’ (2004) 24 Aust Bar Rev 219. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 2. B McDonald, ‘The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of the Common Law of Negligence’ (2006) 14 TLJ 268. J Stapleton, ‘Cause-in-Fact and the Scope of Liability for Consequences’ (2003) 119 LQR 388. —, ‘The Golden Thread at the Heart of Tort Law: The Protection of the Vulnerable’ (2003) 24 Aust Bar Rev 135.

1.

J Stapleton, ‘The Golden Thread at the Heart of Tort Law: The Protection of the Vulnerable’ (2003) 24 Aust Bar Rev 135 at 135; but see also M K Kirby who noted, in 2005, that the ‘imperium of the law of negligence’ has been wound back: ‘Ten Years in the High Court — Continuity and Change’ (2005) 27 Aust Bar Rev 4 at 11.

2.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

[page 151]

Chapter 9 Established Duties of Care 1

Introduction

9.1 In Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [42], the members of the High Court in a joint judgment stated: A defendant will only be liable, in negligence, for the failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.

9.2 A duty of care is ‘a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs)’: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [44] per Gummow J. In Chan v Acres [2015] NSWSC 1885 at [96] it was said, ‘To say that one person owes another a duty of care is to make a statement about a legal aspect, or incident, of the relationship between those two people’. 9.3

Duties of care may be classified into two categories:

1.

Established duties of care — determined by reference to the precedents established by similar cases, that is, the law recognises that certain relationships give rise to a duty of care.

2.

Novel duties of care — the facts do not fit within any of the established duties of care, but as Lord Macmillan stated in Donoghue v Stevenson [1932] AC 562 at 619, ‘the categories of negligence are never closed’: see Chapter 10.

The majority of cases that go before the courts involve established duties of care. In Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 at [13], Gleeson CJ observed: Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well-established, and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon the application to the facts of well-settled principles concerning legal responsibility.

Scope of the Duty of Care 9.4 The recognition of a duty of care, established or in a novel situation, does not impose an all-encompassing duty. Every duty of care is founded upon the ‘neighbour principle’ — [page 152] to take reasonable care so as not to expose the plaintiff to foreseeable risks of injury — but is not unlimited in scope. Gummow J in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [43] explained: … duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question. Secondly, whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden.

9.5 It is possible that the scope of an established duty is an issue if the facts of the case are outside the recognised scope. French CJ and Gummow J in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at [22] stated: Different classes of care may give rise to different problems in determining the nature or scope of a duty of care. In many cases a duty formulated as being one to take “reasonable care” may suffice for the finding of duty in that particular case. Cases that involve the duty of a solicitor to

his or her client to exercise professional skill in accordance with the retainer, the duty of a motorist towards other users of the road, or the duty owed by an occupier of land to an entrant with respect to the condition of the premises, ordinarily involve no real controversy over the scope and content of the duty of care; these are considered at the “high level of abstraction” spoken of by Glass JA in Shirt v Wyong Shire Council [[1978] 1 NSWLR 631 at 639]. But where the relationship falls outside of a recognised relationship giving rise to a duty of care, or the circumstances of the case are such that the alleged negligent act or omission has little to do with that aspect of a recognised relationship which gives rise to a duty of care, a duty formulated at too high a level of abstraction may leave unanswered the critical questions respecting the content of the term “reasonable” and hence the content of the duty of care. These are matters essential for the determination of this case, for without them the issue of breach cannot be decided. The appropriate level of specificity when formulating the scope and content of the duty will necessarily depend on the circumstances of the case. [footnotes omitted]

An example of where the scope of an established duty of care had to be considered is Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411. The appellant owned a shopping centre at which the respondent was an employee of one of the lessees at the centre. The respondent was criminally assaulted by three unknown assailants in the centre’s car park one night when leaving work. The lights for the car park were not on at the time. The respondent alleged that as occupier, the appellant owed them a duty of care and had breached the duty by failing to leave lights on. It was not denied that as the occupier of the shopping centre, the appellant owed the respondent a duty of care. Gleeson CJ stated (at [17]): That an occupier of land owes a duty of care to a person lawfully upon the land is not in doubt. It is clear that the appellant owed the first respondent a duty in relation to the physical state and condition of the car park. The point of debate concerns whether the appellant owed a duty of a kind relevant to the harm which befell the first respondent. That was variously described in argument as a question concerning the nature, or scope, or measure of the duty. The nature of the harm suffered was physical injury inflicted by a third party over whose actions the appellant had no control. Thus, any relevant duty must have been a duty related to the security of the first respondent. It must have been a duty, as occupier of land, to take reasonable care to protect

[page 153] people in the position of the first respondent from conduct, including criminal conduct, of third parties.

The issue to be determined by the High Court was ‘whether, at common law, a duty of care may be established and extend, in its scope, to the avoidance of foreseeable risks of injury arising out of the criminal acts of a third party’ (at [65] per Kirby J) or as Hayne J phrased it, ‘[t]he relevant question in the present case is not whether an occupier owes some duty of care to an entrant. The question is what is the extent of the duty which the occupier owes’: at [102]. A majority of the court (Kirby J in dissent) held that the scope of the duty of care of the appellant did not extend to taking reasonable care to prevent injury to lawful entrants to the land by criminal third parties. 9.6 The High Court has warned of formulating the duty of care with close reference to the alleged breach. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at [19], French CJ and Gummow J warned: … there is an inherent danger in an action in negligence to look first to the cause of damage and what could have been done to prevent that damage, and from there determine the relevant duty, its scope and content [Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761; Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432].

9.7 The scope or content of the duty must be determined before any inquiry into breach can be made as otherwise assumptions are made ‘about the content of the duty of care’ which ‘may fail to take fundamental aspects of the relationship between the parties into account’: Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355 at [19]. See also CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390; 260 ALR 606. It is important to define the scope of the duty, be it an established duty or a novel duty, as it must allow the issue of breach to be determined: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at [22]; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 at [8] per Gleeson CJ. See also Romeo v Conservation Commission of

the Northern Territory (1998) 192 CLR 431; 151 ALR 263 at [122]; Schultz v McCormack [2015] NSWCA 330 at [70]–[74].

Established Duties of Care 9.8 As the law of negligence developed, many relationships were recognised as giving rise to a duty of care. The established duties of care that are examined in this chapter are: occupiers of premises and entrants; employers and employees; road users and other road users; persons and authorities in control of others; professionals and clients; and manufacturers of goods and consumers. [page 154]

2

Occupiers of Premises

9.9 Before the modern concept of negligence started to develop from the decision of Donoghue v Stevenson [1932] AC 562, the duty of care of an occupier was dependent upon the class of entrant. Under the old rules, the following applied: Contractual entrants The tortious duty required that the premises were as safe for the contemplated purpose as reasonable care and skill could make them: Francis v Cockrell; Maclennan v Segar [1917] 2 KB 325; Gribben v Woree Caravan Park and Motels [1970] Qd R 420. Invitees The duty owed to invitees was ‘that the occupier shall on his part use reasonable care to prevent damage from unusual danger

which he knows or ought to know’: Indermaur v Dames (1866) LR 1 CP 274 at 288 per Willes J. Whether something amounted to an unusual danger depended upon the nature of the danger, the place where it was found and the activity being undertaken by the particular invitee: Pinborough v Minister of Agriculture [1974] 7 SASR 493. Entrants as of right Members of the public entering public premises or public officials entering private property under the authority of a statute were owed a duty of care equivalent to that of an invitee or licensee. Licensees The duty was only to warn of any unusual or concealed danger, of which the occupier knew and which would not be obvious to a reasonably careful entrant: Lipman v Clendinnen; Phipps v Rochester Corporation [1955] 1 QB 450; Hawkins v Coulsdon and Purley Urban District Council [1954] 1 QB 319. If the licensee knew of the danger, then no warning was necessary: Dunster v Abbott [1953] 2 All ER 1572; [1954] 1 WLR 58. Trespassers At first the duty was only in respect of injuries caused as a result of wilful default or reckless disregard: Addie v Dumbreck [1929] AC 358; Mourton v Poulter [1930] 2 KB 183; Edwards v Railway Executive [1952] AC 737. However, a duty of common humanity replaced this under which the occupier was expected to act towards trespassers as would a humane person with the knowledge, ability and resources of the occupier: British Railways Board v Herrington [1972] AC 877; Southern Portland Cement Ltd v Cooper [1974] AC 623; (1973) 129 CLR 295; 2 ALR 113. 9.10 These old rules were finally abandoned in Australia by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615. As the High Court commented in Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR 452 at [24], in a single joint judgment: There was a time when the common law sought to define with precision the duty of care owed

by an occupier of land, and treated the content of the duty as variable according to categories fixed by reference to the status of entrants. The common law has since rejected the approach of seeking to construct a series of special duties by reference to different categories of entrant. The problems involved in the former approach included the rigidity of the classification of entrants, and the artificiality of distinguishing between the static condition of premises and activities conducted on the premises. That is not to say, however, that the law now disregards any aspect

[page 155] of the relationship between the parties other than that of occupier and entrant. On the contrary, other aspects of the relationship may be important, as considerations relevant to a judgment about what reasonableness requires of a defendant, a judgment usually made in the context of deciding breach of duty (negligence). [footnotes omitted]

In Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615, the plaintiff slipped in the defendant supermarket’s foyer where the vinyl-covered floor had become wet due to customers entering the store on a rainy day. A majority of the High Court held there was no longer any justification for the continued recognition of the special duties of occupiers, and all that was necessary was the necessary degree of proximity of relationship. Mason CJ, Wilson, Deane and Dawson JJ stated (at CLR 487–8; ALR 620–1): All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.

9.11 As to who is an ‘occupier’, McHugh J commented in Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52 at [30]: The common law has long recognised that the occupier of premises owes a duty to take reasonable care for the safety of those who enter the premises. That duty arises from the

occupation of premises. Occupation carries with it a right of control over the premises and those who enter them. Unless an entrant has a proprietary right to be on the premises, the occupier can turn out or exclude any entrant — even an entrant who enters under a contractual right. Breach of such a contract will give an entrant a right to damages but not a right to stay on the premises.

In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263 at [15], Brennan CJ explained: … possession or occupation gives the defendant an ability to safeguard the entrant against dangers in the condition of the premises. It is not simply possession or occupation of premises which founds the duty of care but power to determine the terms on which an entrant may enter and power to safeguard the entrant against dangers in the condition of the premises entered.

Scope of the Duty 9.12 The accepted scope of the duty is that an occupier must take reasonable care to avoid foreseeable risks of injury to an entrant: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; 69 ALR 615; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263; Neindorf v Junkovic (2005) 222 ALR 631; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [45]; Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420. The scope of the duty is influenced by the type of premises occupied by the defendant. For example, in Sharp v Paramatta City Council (2015) 209 LGERA 220, the duty owed by the defendant, the occupier of a public pool, was ‘to take reasonable care to avoid foreseeable [page 156] risks of injury to persons using the pool’ and ‘[b]eyond that, the scope and content of the duty depended upon the particular circumstances’: at [4]. See also Woolworths Ltd v Ryder (2014) 87 NSWLR 593 at [51] (trial judge erred in holding scope of defendant occupier required it to exercise reasonable care

to ‘obviate any foreseeable danger’ which it should be aware, ‘regardless of whether the danger might exist within the supermarket itself or in the nearby common area’). 9.13 In Beardmore v Franklins Management Services Pty Ltd [2003] 1 Qd R 1, the plaintiff was injured at the defendant’s supermarket when a five-yearold boy in charge of a shopping trolley ran into her. The Court of Appeal held (at [13]) that the defendant as occupier owed a duty of care as the risk of injury was foreseeable: Grocery shopping can be a harrowing experience requiring tolerance, patience, care and some skill in manipulating wayward trolleys in crowded aisles. But shoppers ought to be protected from impacts at speed with well-laden, out-of-control trolleys negligently pushed by children or adults, where the supermarket was or ought to have been aware of the negligent behaviour. Of course, accidents regularly happen without negligence on anyone’s part. Tired, bored children and their harassed care-givers are a common enough dynamic of supermarket shopping which should ordinarily call up the compassion and assistance of fellow shoppers, not complaints. But if supermarket staff have effective notice of reasonably foreseeable dangerous behaviour from shoppers or their children, it is the supermarket’s legal obligation to make reasonable attempts to curb such behaviour which may not only place their shoppers at risk but also their employees.

9.14 However, as noted at 9.5, the scope of the occupier’s duty of care may be problematic. In Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234; 214 ALR 452, the appellant regularly delivered bread to the respondent’s store. The appellant was injured when she tried to move industrial bins that were blocking her access to the loading dock. The High Court held that the scope of the duty of care owed by the respondent to the appellant extended to ensuring that the system for the delivery of goods to its premises did not expose her to an unreasonable risk of physical injury. The scope of the duty extended to, not only the static condition of premises to which the deliveries were made, but also the system of delivery itself. Their Honours held (at [27]): … the respondent established and maintained a system, and its obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury. A number of aspects of the facilities and procedures for the delivery of goods into the

respondent’s store might have involved issues of health and safety. Many, perhaps most, of the people who made the actual deliveries were outside the respondent’s organisation, and were not subject to the direct control it exerted over its employees. Even so, they were regular visitors to the premises, for a mutual commercial purpose, and it was reasonable to require the respondent to have them in contemplation as people who might be put at risk by the respondent’s choice of facilities and procedures for delivery.

9.15 In Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52, the High Court considered whether occupiers of licensed premises owe a duty of care to prevent intoxicated patrons from leaving the premises, over and above that required by the relevant liquor licensing legislation. The plaintiff argued, inter alia, that the [page 157] defendant club owed her a duty to prevent her from leaving the club when its employees knew she was intoxicated — she was subsequently found to have a blood alcohol content of 0.238 per cent. In bringing the action, she was seeking damages from the club for the injuries she received as a pedestrian soon after she left the club premises. By a 4:2 majority, the court held either that the defendant did not owe the plaintiff a duty of care in the terms argued or that, even if a duty was owed, it had not been breached. For example, Gleeson CJ stated (at [18]): ‘The consequences of the appellant’s argument as to duty of care involve both an unacceptable burden upon ordinary social and commercial behaviour, and an unacceptable shifting of responsibility for individual choice’. Callinan J (at [130]) endorsed the comments of Heydon JA in the Court of Appeal (South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 at [7]), that: … if the tort of negligence were extended as far as the [appellant] submitted, it would “subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms”.

Only McHugh and Kirby JJ, in dissent, held that the club owed a duty of

care to the plaintiff. As McHugh J (with whom Kirby J agreed on this point at [91]) described the relationship with the club: The duty of an occupier is not confined to protecting entrants against injury from static defects in the premises. It extends to the protection of injury from all the activities on the premises. Hence, a licensed club’s duty to its members and customers is not confined to taking reasonable care to protect them from injury arising out of the use of the premises and facilities of the club. It extends to protecting them from injury from activities carried on at the club including the sale or supply of food and beverages. In principle, the duty to protect members and customers from injury as a result of consuming beverages must extend to protecting them from all injuries resulting from the ingestion of beverages. It must extend to injury that is causally connected to ingesting beverages as well as to internal injury that is the result of deleterious material, carelessly added to the beverages: at [31].

9.16 In CAL No 14 Pty Ltd (t/as Tandara Motor Inn) v Motor Accidents Insurance Board (2009) 239 CLR 390; 260 ALR 606, the appellant claimed damages from the respondent, alleging that it had been negligent in allowing her husband to leave its licensed premises and drive his motorcycle when he was intoxicated. The Tasmanian Court of Appeal had found that the respondent owed the deceased husband ‘a duty to take reasonable care to prevent Mr Scott from riding the motorcycle when so affected by alcohol as to have reduced capacity to ride it safely’: Scott v CAL No 14 Pty Ltd (t/as Tandara Motor Inn) (No 2) (2007) 17 Tas R 331; 256 ALR 521 at [53]. On appeal to the High Court, an even more narrow duty was argued — that the duty of the respondent was to contact the deceased’s wife in order for her to collect him. The High Court was critical of the Tasmanian Court of Appeal’s formulation of the duty of care, warning that it was best to avoid arguments for duty of care based upon the specific facts of the case: at [37]. The High Court held (at [31]): There is no doubt that the proprietor and the licensee [the respondent] owed Mr Scott various duties to take reasonable care — for example, a duty to take reasonable care to ensure that the premises were physically safe, and a duty to take reasonable care to ensure that equipment in operation, like gambling machines and kegs, did not injure him.

[page 158]

However, no duty was owed to the appellant’s husband as: … persons in the position of the proprietor and the licensee, while bound by important statutory duties in relation to the service of alcohol and the conduct of the premises in which it is served, owe no general duty of care at common law to customers which requires them to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume. That conclusion is correct because the opposite view would create enormous difficulties … relating to customer autonomy and coherence with legal norms: at [52].

See also Schuller v S J Nominees Pty Ltd (2015) 124 SASR 152 (appellant sued hotel in negligence for injuries she suffered when she fell off a chair while dancing).

Legislation and the scope of duty 9.17 Many Australian jurisdictions have included a statement of the scope of duty of care of an occupier in legislation. For example, in the Australian Capital Territory, s 168 of the Civil Liability (Wrongs) Act 2002 provides: (1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of — (a) the state of the premises; or (b) things done or omitted to be done about the state of the premises. The section expressly replaces the old common law rules as to the duty owed to the different classes of entrant, but preserves the other common law rules and any obligation an occupier may have under contract or statute: Civil Liability (Wrongs) Act 2002 (ACT) s 168(5). See also Civil Liability Act 1936 (SA) s 20; Wrongs Act 1958 (Vic) s 14B; Occupiers Liability Act 1985 (WA) s 5. See also Personal Injuries (Liabilities and Damages) Act 2002 (NT) s 9, which provides an occupier or owner of a dwelling house or commercial premises does not incur civil liability in

negligence if the plaintiff entered the premises with the intent of committing an offence punishable by imprisonment.

Warning signs 9.18 The circumstances in which an occupier has a positive duty to provide warning signs has been considered in a series of High Court cases: see Nagle v Rottnest Island Authority (1993) 177 CLR 423; 112 ALR 393; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; 151 ALR 263; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Hoyts Pty Ltd v Burns (2003) 201 ALR 470; 77 ALJR 1934; Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486; 221 ALR 764; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761. 9.19 In Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761, the respondent dived from a bridge into shallow water, despite the pictogram depicting ‘no diving’, and struck his head. Gummow J referred to the decisions of Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 and Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1, noting that an occupier’s duty is to [page 159] take reasonable care and that to impose a duty to prevent foreseeable harm to others would be outside the scope of the duty: The trial judge and the majority in the Court of Appeal impermissibly reasoned that if a warning is given, and if the conduct against which that warning is directed continues notwithstanding the warning, then the party who gave the warning is shown to have been negligent by reason of the warning having failed. Quite apart from its inconsistency with the scope of the RTA’s duty of care, this reasoning erroneously short-circuits the inquiry into breach of duty … : at [55].

9.20 In Hoyts Pty Ltd v Burns (2003) 201 ALR 470; 77 ALJR 1934, the plaintiff was injured in the defendant’s cinema when she momentarily left her seat to attend to a child and the seat automatically retracted. This action caused the plaintiff to fall when she attempted to return to her seat. The plaintiff argued that the scope of the duty owed by the defendant to patrons included the provision of signs warning of the retracting seats. In finding against the plaintiff, the majority of the High Court based its decision on the inference that the presence of a sign would not, in fact, have prevented her injury. In agreeing with the majority, Kirby J considered the following factors as being relevant, in the context of the particular circumstances of a case, when determining whether the duty of care owed by the occupier extends to the provision of a warning sign: (1) whether the occupier has an economic or other interest in the entry of the plaintiff; (2) whether, because of previous incidents, public discussion or otherwise the occupier could be expected to know of any particular risks against which warnings should be given; (3) whether there was any hidden feature of the place or activity that might not be plain to an ordinary entrant but which should be known to, or reasonably discoverable by the occupier, calling for a warning; (4) whether, if the risk eventuated, the consequences would be likely to be minor or significant for the person affected; (5) whether the imposition of a requirement to give a notice could be confined to a particular place or places or would have large implications, costs and other consequences; and (6) whether the nature of the activity in question was such as to render the presence of a sign irrelevant to the actual prevention of injury: at [71]. [footnotes omitted]

See also Borland v Makauskas [2000] QCA 521, where the plaintiff sued the occupiers of the waterfront property at which he had been at a party, for the injuries he sustained when he dived off a fence into the canal. The Court of Appeal held that it was not necessary for the occupiers to place signs along the boundary of their property warning visitors not to dive into the canal. The risk was held not to be foreseeable and therefore outside the scope of the occupier’s duty of care: at [13].

Landlords 9.21 Landlords and tenants are in a contractual relationship based on rights over land and, for this reason, the common law previously treated the

relationship as special. The general rule was that, outside of the contractual relationship, a landlord owed no duty to a lessee or others on the premises unless the landlord: conducted active operations or had undertaken repairs (AC Billings & Sons Ltd v Riden [1958] AC 240); fraudulently concealed a defect (Travers v Gloucester Corporation [1947] KB 71); was responsible for faulty design (Rimmer v Liverpool City Council [1985] QB 1); or [page 160] the premises were unfurnished when leased but were unfit for occupation and the injury resulted from their defective state: Charsley v Jones (1889) 53 JP 280. In the absence of one of these exceptions, the landlord owed no duty of care in tort: Cavalier v Pope [1906] AC 428. In Cavalier v Pope, the unsuccessful plaintiff suffered injuries after falling through dilapidated flooring which the landlord had promised her husband, as lessee, he would repair. The rule in Cavalier v Pope was finally rejected in Parker v South Australian Housing Trust (1986) 41 SASR 493, which was approved by the High Court in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572. 9.22 The relationship of landlord and tenant is considered under the duty of occupier and entrant due to the meaning of occupation. In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 336; 146 ALR 572 at 584, it was explained: The true bases of the occupier’s duty of care are the power of control which an occupier has to

consent to another’s entry and the power to safeguard the entrant against injury or loss from defects in the occupied premises (see Wheat v E Lacon & Co Ltd [1966] AC 552 at 578–9). Yet a landlord has powers corresponding to those of an occupier to consent to entry into occupation of the premises by the tenant and those who, to the knowledge of the landlord, are intended to occupy the premises under and for the purposes of the tenancy and the power to safeguard those persons against injury or loss from defects that are in the premises at the time when the tenant is let into possession.

In that case, Brennan CJ held (at CLR 339; ALR 586): I would hold a landlord to be under a duty of care in respect of the demised premises requiring the same standard of care as is required of occupiers towards those who enter occupied premises by consent and for reward, the landlord’s duty of care being (i) limited to defects in the premises at the time when the tenant is let into possession; and (ii) owed to the tenant and to those who, to the knowledge of the landlord, are intended to occupy the premises under and for the purposes of the tenancy.

9.23 The High Court again considered the scope of the duty of care owed by landlords to tenants and their families in Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137. In that case, the tenant’s son was injured when he put his knee through an internal glass door in the residential property. The glass in the door had conformed with the relevant safety standards at the time that the house was built, but did not comply with the current higher standards applicable to new houses. The court considered that the decision in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572 had expanded the duty of care owed to tenants at common law, although their Honours varied as to their opinion of the exact content of that expanded duty. Gleeson CJ and McHugh and Kirby JJ thought the duty was to take reasonable care to avoid a foreseeable risk of injury to prospective tenants and their families. Gaudron J considered that the duty was to take reasonable care for the safety of the tenants and their families and that this extended to putting and keeping the premises in a safe state of repair. Callinan J seemed to consider it sufficient that the premises were in a habitable condition at the commencement of the tenancy.

[page 161] The joint judgment of Gummow and Hayne JJ referred to the comments of Lord Atkin in Donoghue v Stevenson [1932] AC 562, and asked whether the relationship between landlord and tenant is so close and direct that the landlord should be obliged to take reasonable care to ensure the tenant does not suffer injury. In answering this question, they referred to the fact that, ordinarily, the landlord will surrender occupation of the premises to the tenant and so the content of the landlord’s duty is likely to be less than that owed by an owner–occupier who retains the ability to direct what is done upon, with and to the premises. Their Honours went on to hold (at [171] and [173]) that: Broadly, the content of the landlord’s duty to the tenant will be conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence. … Premises will not be reasonably fit for the purposes for which they are let where the ordinary use of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury. The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put. The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe. This does not amount to a proposition that the ordinary use of the premises for the purpose for which they are let must not cause injury; it is that the landlord has acted in a manner reasonably to remove the risks.

Liability for the criminal conduct of third parties 9.24 As noted at 9.5, an occupier’s duty of care does not extend to providing protection against criminal attacks by third parties: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411. There are situations, however, where the occupier is able to exercise control over access to, or the continued presence of persons on, the premises. In these circumstances, the scope of the occupier’s duty of care may extend to harm

caused to persons on the premises by the criminal acts of third parties: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628; Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; 91 ALR 149. In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628, the appellant attempted to rely upon the decision of Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411 to establish that it owed no duty of care to the respondent. The respondent and a patron had been involved in a fight on the dance floor of the appellant’s premises. The patron left the premises and returned with a gun, shooting the respondent. The High Court agreed that the decision in Modbury was relevant when considering whether an occupier owes a duty to prevent criminal conduct of a third person on the premises. However, the appellant was as the occupier and business operator of the restaurant, bound by the provisions of the Liquor Act 1982 (NSW) which included regulation of conduct on the licensed premises. In a joint judgment, the High Court held (at [26]): [The appellant] owed each [respondent] a duty to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other persons. The duty is

[page 162] consistent with the duty imposed by statute upon the licensee and which was a duty enforceable by criminal processes. No question arises of translating a statutory power given to a statutory body into the common law “ought” (compare Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147). The duty is not absolute; it is a duty to take reasonable care. It is not a duty incapable of performance. It is a duty the performance of which is supported by the provision of statutory power to prevent entry to premises and to remove persons from the premises, if needs be by using reasonable force. Although it is a duty directed to controlling the conduct of others (for the avoidance of injury to other patrons) it is a duty to take reasonable care in the conduct of activities on licensed premises, particularly with regard to allowing persons to enter or remain on those premises.

See also Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447. The defendant club was hosting a debutante ball when violence erupted and a senior police

constable who had been sent to the premises was savagely assaulted in the car park by some of the patrons. The constable sued the club. In finding for the plaintiff, Brooking, Charles and Chernov JJA distinguished Modbury, saying (at [34]–[35]): The criminals in Modbury were in no sense under the control of the defendant. Its supposed negligence lay in its failure to light the car park, the lights having evidently been turned off at 10 pm, half an hour before the attack. Here the ruffian Holton could not properly be described as not under the control of the club. It did in fact fail lamentably to control him, and this is the only sense in which he was not under its control. He was allowed to misbehave, out of control, when he should have been kept under control by the club, which had invited him on to its premises and allowed him to remain there for the purposes of its business … of conducting social functions on its licensed premises at which it sold liquor to the patrons.

9.25 The issue of control, or lack thereof, was also decisive in Gordon v Tamworth Jockey Club Inc (2003) Aust Torts Reports ¶81-698. In that case, the plaintiff argued that the club was in breach of the duty of care she was owed as a patron of the club. The alleged duty and breach arose in the context of an attack on the plaintiff by an intoxicated employee of the club. Despite the fact that the club knew the employee, a cleaner, was intoxicated and acting in an unruly manner, this was not sufficient to take the facts outside the principle laid down by the High Court in Modbury. Sheller JA, with whom Beazley and Giles JJA agreed, commented that this was not a situation where members of the public were invited by the club on to the premises in such numbers and in such circumstances that crowd control, including the removal of people behaving aggressively, was essential for the safety of others lawfully on the premises. His Honour concluded, therefore, that the club was not responsible for the assault by its employee when there was no indication that he was about to commit a criminal act. The club was also not vicariously liable for the assault which was clearly outside the cleaner’s scope of employment: see Chapter 20.

3

Employers

9.26 The duty of care which an employer owes an employee operates concurrently with those duties owed to the employee under the contract of employment. An employment contract contains, as a matter of law, an express or implied term requiring the employer [page 163] to provide a safe workplace: Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; 65 ALR 1. Failure to provide a safe workplace will be grounds for an action for breach of contractual duty. In England, it was suggested, in C Czarnikow Ltd v Koufos [1969] 1 AC 350, that the tortious duty may impose wider liability than the contractual. This is not the situation in Australia, where the High Court has held that respect for the coherency of the law requires that, subject to statutory restrictions, employers and employees should be free to stipulate the amount of work which an employee agrees to perform under a contract of employment: Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355 at [31]. 9.27 There has been considerable development with both courts and legislatures reflecting the changing political and socioeconomic attitudes of society in respect of this particular duty of care. Initially, the common law courts favoured the protection of individual rights and responsibilities which, in practice, meant the protection of the employer’s rights at the expense of those of the employee. From the employers’ perspective, this meant that, during the early years of the Industrial Revolution, they were not burdened with the overhead costs associated with workplace injuries and deaths. Instead, these costs were borne by the individual worker. To give just one example of the extent of workplace injury, in the last quarter of the 19th

century, almost 13,000 workers were recorded as killed at work and almost 69,000 injured in the English railways industry alone.1 9.28 As the 19th century progressed, however, it became increasingly recognised that employers were, in fact, better placed to bear and spread the cost of workplace accidents and that the loss should not simply be left where it fell, that is, on the injured employee. The result was the growth of a political movement calling for ‘the cost of the product to bear the blood of workers’. Three developments flowed from these changes: The first development was the diluting of what was called the ‘unholy trinity’ of defences which strongly favoured employers. The three defences were common employment, voluntary assumption of risk and contributory negligence. The common employment defence was based upon a fictitious, implied term in the contract of service that the servant (as employees were then called) agreed to run the natural risks of employment, including harm caused by the negligence of fellow servants: Priestley v Fowler (1837) 3 M & W 1; 150 ER 1030. In its most extreme form, this included the negligence of managerial staff supervising the activities of manual labourers: Hutchinson v York, Newcastle & Berwick Railway Company (1850) 5 Exch 343; 155 ER 150. The defence has now been abolished in all Australian jurisdictions. The second development was the passing of the legislation which was the forerunner of today’s occupational, or workplace health and safety legislation, for example the Factories Amendment Act 1844 (UK) and the Victorian Supervision of Workrooms and Factories Act 1873. This legislation not only provided for state-imposed sanctions on dangerous work practices, but also often provided workers with an action for breach of statutory duty against their employers: see Chapter 18. [page 164]

The third development was the introduction of workers’ compensation legislation, for example the Workmen’s Compensation Act 1897 (UK). The distinguishing feature of workers’ compensation legislation is that workers who are injured, or have their health impaired, are compensated without the need to prove that their employer was at fault. All that generally is required is that there is a causal or temporal link between their injury and their employment. 9.29

Therefore, an employee may be compensated in the following ways:

an action in negligence against the employer based upon the personal duty of care owed by the employer; access compensation through the employer’s workers’ compensation insurance scheme; an action in negligence against the employer, based upon the employer’s vicarious liability, if injured by another employee’s tort (see Chapter 20); an action in breach of statutory duty based upon the occupational health and safety legislation (see Chapter 18); and an action in breach of contract for breach of the implied terms to provide a safe workplace. See also 9.47 regarding the employer’s non-delegable duty of care. 9.30 Actions in negligence by employees are not common as the workers’ compensation schemes in each jurisdiction provide an easier path for compensation for personal injury: see 9.54. 9.31 It should be noted that an employer of an independent contractor will owe a duty of care; however, its scope may differ to that of the content of the duty owed to an employee. In Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; 258 ALR 673 at [52], the High Court pointed out that to impose a duty in the same terms as is owed to an employee in respect of the safe system of

work, would be ‘inconsistent with maintenance of the distinction that the common law draws between the obligations of employers to their employees and of principals to independent contractors’.

Scope of the Duty 9.32 At common law, an employer owes a duty to its employees to take reasonable care to carry on its business in such a way as to not subject employees to unnecessary and foreseeable risks of injury: Smith v Charles Baker & Sons [1891] AC 325; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 at 25; Rae v Broken Hill Proprietary Co Ltd (1957) 97 CLR 419 at 430; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 307; 65 ALR 1 at 5. 9.33 The duty owed is a single duty but, for the purpose of legal analysis, is traditionally divided into the three headings: proper selection of skilled persons to manage and superintend the business (Butler v Fife Coal Co Ltd [1912] AC 149); [page 165] provision and maintenance of proper plant and equipment (Wilsons & Clyde Coal Co Ltd v English [1938] AC 57); and provision of a safe system of work: Neill v New South Wales Fresh Food & Ice Pty Ltd (1963) 108 CLR 362; Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743. 9.34 An employer’s duty only encompasses foreseeable risks. In Visser v South Australian Housing Trust (1995) 65 SASR 571, the defendant was held to have owed no duty of care to the employee telephonist who was injured when a customer blew a whistle into a telephone headset she was using. The

majority of the South Australian Court of Appeal held that, given the unlikelihood of such an incident occurring and that there was little general knowledge of the availability of a sound-limiting device, no duty of care was owed to require the use of headsets or to fit the device to all telephones. In respect of those hazards which are foreseeable but cannot be avoided by the exercise of reasonable care and skill, the employee may have to accept the risk: Key v Commissioner for Railways (1941) 64 CLR 619; Nair v Health Administration Corporation (1994) Aust Torts Reports ¶81-312. It has been stated that ‘the content of the duty of care is not at large but needs to being into account the contract that existed between parties’: Woolworths Ltd v Perrins [2015] QCA 207 at [42]. In D’Amico v Calavary Hospital Auxiliary Inc [2013] ACTSC 259, it was pointed out that the fact that the employer is a not-for-profit organisation does not alter the duty owed to its employees. 9.35 As noted previously, issues may arise as to the scope of an established duty. In employment scenarios, a common issue about the duty of care is when the damage suffered by the employee is psychiatric injury that is not a consequence of any physical damage: see Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355; Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. Such claims are not within the established duty of an employer and are novel: see 10.40ff.

Selection of competent staff 9.36 An employer is required to exercise reasonable care and skill in the selection of competent supervisory staff (Butler v Fife Coal Co Ltd [1912] AC 149) and to ensure that the staff is properly trained to carry out their duties. The employer is also required to maintain discipline among staff and, ultimately, to dismiss an employee who is a danger to other employees.

Plant and equipment

9.37 This part of the employer’s duty encompasses the work site, machinery and equipment. For example, the work site must be a safe place to work. In Whitton v New South Wales [2005] NSWCA 97, the workplace, a classroom, was not safe due to the loose computer cables which caused the plaintiff to trip. 9.38 If the employee is required to attend premises not occupied by the employer, the employer may still be liable: Wilson v Tyneside Window Cleaning Co [1958] 2 QB 110; [page 166] ACI Metal Stamping & Spinning Pty Ltd v Boczulik (1964) 110 CLR 372. In Smith v Austin Lifts Ltd [1959] 1 WLR 100 at 117, Lord Denning held: … employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an over-riding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance, … if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable depends, of course, on the circumstances.

See also Sinclair v William Arnott Pty Ltd; Kell & Rigby Pty Ltd (Third Party) (No 2) (1963) 64 SR (NSW) 88 at 92. 9.39 In DIB Group Pty Ltd t/as Hill & Co v Cole [2009] NSWCA 210, the court noted that the duty to provide proper plant and equipment will operate differently in respect of premises over which the employer has no control. Basten JA stated (at [54]): Where the safety of premises is at stake, as in this case, it is appropriate to ask quite specific questions with respect to what may be expected of an employer exercising reasonable care for the safety of its employees. For example, is it reasonable for the employer to request or require access to premises to carry out its own safety inspection? Is it necessary (and sufficient) if the employer inquires of the occupier what steps it has taken to conduct such an assessment? Is it

necessary (and sufficient) for the employer to inquire in specific terms of its own employees as to the nature of the conditions they encounter at other premises?

9.40 Where the employer is also the occupier, the employee may be entitled to rely upon the breach of the duty of his or her employer, both as employer and as occupier. 9.41 This component of the duty requires that the employer exercise reasonable care in the provision, maintenance and repair of plant and equipment: TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1 at [61]; Smith v Brambles Australia Ltd [2011] NSWSC 963. Therefore, an employer must: ensure that the employee is able to use any equipment or machinery safely which may require training and instruction; provide suitable equipment (see Fuller v New South Wales Department of School Education and Training (2004) Aust Torts Reports ¶81-756 where the ladder supplied to the employee was unsuitable); and have reasonable inspection and maintenance systems in place: see Bourk v Power Serve Pty Ltd [2008] QSC 29, where the court held the lack of inspection was reasonable as the equipment provided to the plaintiff was new and usually lasted for years. 9.42 Liability for defects in equipment will arise only if such defects, including those due to the negligence of the manufacturer, could have been discovered by the exercise of reasonable care: TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; Davie v New Merton Board Mills Ltd [1959] AC 604 (latent defect in tool provided by employer); Bellambi Coal Co Ltd v Murray (1909) 9 CLR 568. In James Thane Pty Ltd v Conrad International Hotels Corp [1999] QCA 516, the court found that the appellant, the employer of injured trapeze [page 167]

artists, was liable for its failure to carry out inspections of the trapeze equipment. The respondent was also liable as it had constructed, operated and maintained the equipment on premises it managed for Jupiters Casino at the Gold Coast.

Safe system of work 9.43 Although the duty requires an employer to provide and maintain a safe system of work, what is meant by a ‘safe system’ has to be decided with reference to the particular case and is not capable of general definition: Speed v Thomas Swift & Co Ltd [1943] KB 557; and see Hughes v South Australia (1982) 29 SASR 161. A ‘safe system’ may be: the provision of instruction (see, for example, Tabcorp Holdings Ltd v Dank [2011] QCA 253, where the employer had not instructed the employee on correct lifting techniques); particular equipment to help with the tasks involved (see, for example, Pacific Steel Constructions Pty Ltd v Barahona [2009] NSWCA 406, where the employer did not provide the employee with ‘the tools and equipment reasonably necessary to safely carry out the work which he was directed to do’: at [128]); a warning (see, for example, Hughes v SDN Children’s Services Inc [2002] NSWCA 11, where the employer, a childcare centre, had not warned the employee of the dangers of contracting cytomegalovirus (a virus common among children) when pregnant); or supervision of the system of work to ensure it is correctly implemented to ensure there is no increased risk of harm: see McGreevy v Cannon Hill Services Pty Ltd [2016] QSC 29 (defendant’s production line processes and supervision not reasonable). 9.44 If an employee is harassed, bullied or assaulted by a fellow employee, this may also be a failure of an employer to provide a safe system of work if such behaviour is foreseeable: Nationwide News Pty Ltd v Naidu (2007) 71

NSWLR 471 at [25]. As the plaintiff often suffers a psychiatric injury as a result of harassment and bullying, consideration of the foreseeability of the harm is required in such cases, as noted in 9.35. 9.45 The employer’s obligation to provide a safe system of work is not static but includes anticipating carelessness in compliance by employees: Czatyrko v Edith Cowan University (2005) 214 ALR 349. As the High Court stated in McLean v Tedman (1984) 155 CLR 306 at 313; 56 ALR 359 at 364: The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer … And in deciding whether an employer has discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

9.46 If the employee is working at a third party’s premises, the employer still is responsible for maintaining a safe system of work: Smith v Austin Lifts Ltd [1959] 1 WLR 100 at 117; Vincent v Woolworths Ltd [2016] NSWCA 40. In South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8, it was noted that an employer’s duty included taking reasonable steps to ensure that the safe system of work was adopted by its employees at other premises. [page 168] If an employee is injured at another’s premises, there would also be the possibility of an action in negligence against the occupier of those premises.

Non-delegable duty 9.47 The duty of care owed by an employer to employees is regarded by the common law as being one of those special duties which cannot be delegated. Therefore, for example, the employer will remain liable even where ‘the system of work was devised, in part, by an employee who was subsequently injured as a result of carrying out the system’: Andar Transport

Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387 at [54]. An employer’s duty to take care is also a duty to ensure that care is taken: Kondis v State Transport Authority (1984) 154 CLR 672; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513. See also Chapter 20.

Legislation Occupational health and safety 9.48 The first English factory legislation — the Health and Morals of Apprentices Act 1802 — attempted, with little success, to regulate the working hours and conditions of apprentice pauper children in the cotton mills. It was the Factory Regulation Act 1833 and the Factories Amendment Act 1844, however, which initiated the avalanche of safety statutes imposing specific duties upon employers. Such legislation provided a right of action in tort for breach of statutory duty (see Chapter 18) to which the doctrine of common employment did not apply (Groves v Lord Wimborne [1898] 2 QB 402), as well as providing an important base for determining standards of care. 9.49 Today there is a wide range of statutory regulations imposing detailed duties on employers, including the national uniform legislation for safety in the workplace which came into effect on 1 January 2012 in every jurisdiction except for Victoria and Western Australia. See Work Health and Safety Act 2011 (Cth); Work Health and Safety Act 2011 (ACT); Work Health and Safety Act 2011 (NSW); Work Health and Safety (National Uniform Legislation) Act 2011 (NT); Work Health and Safety Act 2011 (Qld); Work Health and Safety Act 2012 (SA) (1 January 2013); Work Health and Safety Act 2012 (Tas) (1 January 2013). In Victoria and Western Australia the uniform legislation has not been adopted: Occupational Health and Safety Act 2004 (Vic); Occupational Safety and Health Act 1984 (WA).

9.50 The national uniform legislation imposes general duties upon persons conducting a business or undertaking to ensure the health and safety of workers so far as is reasonably practicable, by eliminating or minimising risks to health and safety so far as is reasonably practicable. Under the national uniform legislation, a person conducting a business or undertaking has specific duties imposed upon them (see ss 19–26) to: provide and maintain a work environment without risks to health and safety; provide and maintain safe plant and structures; provide and maintain safe systems of work; [page 169] ensure safe use, handling, storage and transport of plant, structures and substances; provide adequate facilities for the welfare of workers at work in carrying out work, including ensuring access; provide any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out; and monitor workers and the conditions at the workplace for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. 9.51 Some workplaces are not within the operation of the national uniform legislation. For example, in Queensland the Work Health and Safety Act 2011 does not apply to aviation safety, coal mining (Coal Mining Safety and Health Act 1999 (Qld)), prescribed railway operations where the Transport Operations (Rail Safety) Act 2010 applies, and operating plants governed by the Petroleum and Gas (Production and Safety) Act 2004.

9.52 The national uniform legislation provides for different categories of offences (see ss 31–33), for example ‘category 1’ being a criminal offence (person with the duty recklessly exposes a person to a risk of death or serious injury or illness). In Queensland, a ‘category 1’ offence results in a penalty of $3 million for a corporation, $600,000 and/or five years imprisonment for a person conducting a business or $300,000 and/or five years imprisonment for a worker. The legislation does not affect civil liability (s 267), and therefore non-compliance with the Act or regulations may entail liability both under the civil law for breach of the statutory duty (see Chapter 18) and under the criminal law. Breach of the legislation may, furthermore, be relied upon as evidence of negligence in an ordinary common law action based upon breach of the common law duty of care: Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195; Sheen v Fields Pty Ltd (1984) 51 ALR 345; 58 ALJR 93.

Workers’ compensation 9.53 The first workers’ compensation legislation was introduced in Germany by Chancellor Bismarck in 1884. The first English legislation, the Workmen’s Compensation Act 1897, made the employer a compulsory insurer against loss of wages from work-related injuries because it permitted recovery of compensation without proof of fault. Under the Act, and its successors of 1906 and 1925, the employee was required to elect either compensation payments under the legislation or the common law right of action, but could not take the benefit of both. Under the English National Insurance (Industrial Injuries) Act 1946, the state became the insurer in place of the employers and no election was required. 9.54 Under the Australian legislative schemes, a worker receives a fixed measure of statutory compensation for injuries arising out of or in the course of employment. There is a high degree of standardisation of benefits under the Acts and their Schedules. The benefits are paid irrespective of the employer’s or employee’s fault, or of the age, experience of the employee, or the impact of the injury and are not designed to give full compensation. The

major categories of benefits are death benefits (including funeral expenses), medical expenses (including those associated with, often mandatory, rehabilitation) and lump sum awards based on a table of injuries. [page 170] See Safety, Rehabilitation and Compensation Act 1988 (Cth); Workers’ Compensation Act 1951 (ACT); Workers Compensation Act 1987 (NSW) and Workplace Injury Management and Workers Compensation Act 1998 (NSW); Return to Work Act 1986 (NT); Workers’ Compensation and Rehabilitation Act 2003 (Qld); Return to Work Act 2014 (SA); Workers’ Rehabilitation and Compensation Act 1988 (Tas); Workplace Injury Rehabilitation and Compensation Act 2013 and Accident Compensation Act 1985 (Vic); Workers’ Compensation and Injury Management Act 1981 (WA). 9.55 The advantage of the legislation is that an employee will receive workers’ compensation payments without undue delay because there is usually no dispute as to entitlements. However, most of the legislative schemes exclude injuries which are caused by the worker’s own serious or wilful misconduct. Since, in most serious cases, the statutory compensation is less than full compensation, the employee will later, if legislatively possible, proceed under a common law tort action to obtain the balance necessary for full compensation. Where a common law action is permitted, any compensation paid becomes a charge on the common law damages recovered. 9.56 Having a number of workers’ compensation schemes in Australia (the Commonwealth has separate schemes for seafarers and military personnel) leads to many inconsistencies between the different jurisdictions in terms of funding, the level of entitlements and access to the common law. Today workers and businesses are much more mobile than they were before and

such inconsistencies are becoming more important. Despite the proposal to develop a national policy relating to workers’ compensation as has been done for work health and safety (see Safe Work Australia Act 2008 (Cth)), this has not yet occurred.

4

Road Users

9.57 It is well established that a duty of care is owed by every user of the road to every other road user, as well as to persons and property adjacent to the road: Edwards v Noble (1971) 125 CLR 296; Loveday v Paddison [1965] Qd R 535; Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413; Imbree v McNeilly (2008) 236 CLR 567; 248 ALR 647. Even a police driver may owe a duty to a person who is being pursued because they are suspected of driving a stolen vehicle: Marshall v Osmond [1983] QB 1034. In Zanner v Zanner (2010) 79 NSWLR 702, the court held that the High Court decision of Imbree v McNeilly supported the proposition that a child of any age would owe a duty of care while driving a car. In that case the appellant driver was 11 years old and injured his mother, the respondent, as he drove the family car into the carport as she supervised from outside of the car. 9.58 No doubt, knowledge of the existence of compulsory third party personal injury insurance has played an influential role in fostering the ready finding of duties of care owed by motor vehicle drivers. Compulsory third party insurance also means that this particular duty category is the most significant in terms of the quantity of litigation in those jurisdictions where litigation has not been substantially modified by statute. 9.59 The courts have also had to grapple with complications such as harm to unborn children arising from motor vehicle accidents. It is now well established that a third party

[page 171] will owe a duty to an unborn child injured in a motor vehicle accident: Watt v Rama [1972] VR 353. Similarly, where the mother is the driver of the motor vehicle, she will owe a duty of care to her unborn child: Lynch v Lynch (1991) 25 NSWLR 441; Bowditch v McEwan (2002) 36 MVR 235. However, in both situations, the unborn child’s right to sue for pre-birth injuries only vests when the child is born alive: Burton v Islington Health Authority [1993] QB 204. 9.60 However, most disputes occur, not in relation to the existence of a duty of care, but, rather, as to the appropriate standard of care owed, whether the duty has been breached, and the apportionment of damages: see, for example, Insurance Commissioner v Joyce (1948) 77 CLR 39; Van den Heuvel v Tucker (2003) 85 SASR 512; Anikin v Sierra (2004) 211 ALR 621; 79 ALJR 452; Imbree v McNeilly (2008) 236 CLR 567; 248 ALR 647. 9.61 If a motor vehicle accident takes place on someone’s property, then the relevant relationship for the duty of care may not be that of a road user. For example, motor vehicle accidents occur in the course of off-road and rally events, and occupiers of the premises or organisers of such events may owe duties of care to ensure the design of courses and signage are appropriate for a sport which carries with it built-in dangers: Wattleworth v Goodwood Road Racing Company Ltd [2004] EWHC 140 (duty as occupier); Emmett v Manning [1985] 40 SASR 297; Macarthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235. See also Simpson v Grundy [2011] QSC 299, where the plaintiff was injured when she overturned the car while driving on the defendant’s property. She was driving on a dirt road that was in good condition, with the permission of her stepfather and grandmother, but was driving fast and was 17 years old.

The court was of the opinion that the case was not related to the duty of an occupier, but the duty of supervision.

Scope of the Duty 9.62 The scope of the duty of care of a driver of a motor vehicle is to take reasonable care to avoid foreseeable risks to other road users: Davies v Tomkins [2009] WASCA 2 at [67]. In Bourhill v Young [1943] AC 92 at 104, Lord Macmillan, referring to the judgment of Lord Jamieson in the court below, commented: … “the duty of a driver is to use proper care not to cause injury to persons on the highway or in premises adjoining the highway …” Proper care connotes avoidance of excessive speed, keeping a good look-out, observing the traffic rules and signals and so on.

In Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413 at [12], Gummow, Kirby and Hayne JJ held: the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.

9.63 A pedestrian is also a road user and therefore owes a duty of care to others on the road. In Heywood v Miller [2005] ACTSC 4 at [19], the court held that a pedestrian was ‘under a duty to take reasonable care to ensure that he or she is not struck by a moving vehicle’. [page 172] 9.64 In French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214, the plaintiff sued the taxi driver who left her partner, intoxicated, at the side of a road. After being left, the plaintiff’s partner was lying on a carriageway and was hit by a vehicle and killed. The plaintiff argued that the taxi driver owed a duty of care ‘to exercise reasonable care in and about, and incidental to the

conveyance of [the] taxi passenger in respect of any reasonably foreseeable, in the sense of not far-fetched or fanciful, or alternatively not insignificant risk of injury to [the taxi passenger] arising out of the conveyance’: at [67]. The recognised scope of the duty is to exercise reasonable care for the safety of passenger: Crofts v Waterhouse (1825) 3 Bing 319; [1825] ER 809.

Legislation 9.65 Legislation schemes exist in all Australian jurisdictions in respect of motor vehicle accidents. The legislation does not impose any duty of care upon drivers but is for the purpose of achieving compensation for personal injury arising from the use of motor vehicles. Fault-based schemes exist in the Australian Capital Territory, New South Wales, Queensland, South Australia and Western Australia. In general terms, these schemes operate with the common law, imposing procedures upon claims for compensation and limiting the types of damages that may be claimed. The legislation imposes compulsory third party insurance upon owners of motor vehicles which then insures any person who drives the vehicle against liability for death or personal injury caused by their fault: Road Transport (Third Party Insurance) Act 2008 (ACT); Motor Accidents Compensation Act 1999 (NSW); Motor Accident Insurance Act 1994 (Qld); Motor Vehicles Act 1959 (SA); Motor Vehicle (Third Party Insurance) Act 1943 (WA). 9.66 The Northern Territory, Tasmania and Victoria have no-fault compensation schemes which indemnify liability for motor vehicle accidents for personal injury if the requirements of the legislation are met: Motor Accidents (Compensation) Act 1979 (NT); Motor Accidents (Liabilities and Compensation) Act 1973 (Tas); Transport Accident Act 1986 (Vic).

5

Persons in Control of Others

9.67 At common law, the traditional distinction between misfeasance and nonfeasance has meant that there is no duty to control another’s actions so as to prevent injury to a third party. There are, however, exceptions to this general principle. As Dixon J commented in Smith v Leurs (1945) 70 CLR 256 at 262: The general rule is that one man is under no duty of controlling another man to prevent his doing damage to a third. There are, however, special relations which are the source of a duty of this nature.

9.68 A person in control of others may also owe the persons themselves an affirmative duty of care to ensure that they come to no harm. Recognised duties of care due to control are imposed upon: school authorities; parents of young children; and prison authorities. [page 173]

School Authorities and Students 9.69 By law, parents are required in most Australian jurisdictions to have their children attend full-time education until reaching the first of a specified age or completion of a specified grade: Education Act 2004 (ACT) s 9 (17 years or completes grade 12); Education Act 1990 (NSW) s 21B(3) (17 years or completes grade 10); Education Act 1979 (NT) s 38(2) (or completes grade 10); Education (General Provisions) Act 2006 (Qld) s 9 (16 years or completes grade 10); Education Act 1972 (SA) s 75(2a) (16 years); Education Act 1994 (Tas) s 4(1) (16 years); Education and Training Reform Act 2006 (Vic) s 1.1.3 (17 years); School Education Act 1999 (WA) s 6 (17 years and 6 months). 9.70

When a student is at school, the school is in control and acting in

place of the parent or guardian: Ramsay v Larsen (1964) 111 CLR 16; [1964] ALR 1121. In Richards v Victoria [1969] VR 136 at 138, it was explained that: The reason underlying the imposition of the duty would appear to be the need of a child of immature age for protection against the conduct of others, or indeed of himself, which may cause him injury coupled with the fact that, during school hours the child is beyond the control and protection of his parent and is placed under the control of the schoolmaster who is in a position to exercise authority over him and afford him, in the exercise of reasonable care, protection from injury …

Scope of the duty 9.71 The scope of the duty of care is to exercise reasonable care and supervision to protect students from foreseeable risks of injury: Geyer v Downs (1978) 138 CLR 91; 17 ALR 408; Commonwealth v Introvigne (1982) 150 CLR 258 at 269; 41 ALR 577 at 586. In H v New South Wales [2009] NSWDC 193, the plaintiff was stabbed by a fellow student on the school grounds. As the teachers were aware of the conduct between the students prior to the stabbing, the risk to the plaintiff was foreseeable and within the school’s duty of care. In Gregory v New South Wales [2009] NSWSC 559, the plaintiff successfully sued for breach of the school’s duty of care to exercise due and proper care to prevent the mistreatment of the plaintiff by other students while at high school. See also Australian Capital Territory Schools Authority v El Sheik (2000) Aust Torts Reports ¶81-577. 9.72 The duty is not limited to when the student is on school premises or the set school hours. For example, in Geyer v Downs (1978) 138 CLR 91; 17 ALR 408, the school was liable to the plaintiff who was injured on the school grounds before school had commenced. Stephen J held that if at the time the relationship of ‘schoolmaster and pupil’ existed, the duty of care would apply: at CLR 94; ALR 410. In Abraham bht Abraham v St Mark’s Orthodox Coptic College [2006] NSWSC 1107, the school was held negligent for not providing an effective system of supervision from 7.45 am, when a significant number of students commenced arriving at the school, until 8.30 am when classes commenced. In Gugiatti v Servite College Council Inc [2004] WASCA 5, the

school was held to owe a duty of care to its students while on a school retreat which took place off school grounds and outside of school hours. See also Roman Catholic Church v Koffman (1996) Aust Torts Reports ¶81-399, where the school’s duty of care extended to supervising the bus stop outside the high school. [page 174] 9.73 The duty owed by school authorities to their pupils may also extend to school bus drivers. For example, in Jarvis v Scrase [2000] 2 Qd R 92, the bus driver was held liable for failing to warn a child, who had just stepped off the bus, of an approaching motor vehicle. The child was killed and the parents successfully sued for the psychiatric injuries they suffered as a result of the manner of their child’s death. See also Fitzgerald v Hill (2008) 51 MVR 55, where the owner and operator of an academy provided instruction in martial arts to children as young as eight. The Queensland Court of Appeal held that the duty owed by the academy owner was similar to that of a school authority, and further was a nondelegable duty: see 9.75. 9.74 While the duty owed to a child by a school authority is well established in regard to physical injuries, more problematic is whether a duty is owed for failing to provide a child with an appropriate standard of education. In England, it has been held that the duty does not extend to identifying a pupil’s special learning needs: Phelps v Hillingdon London Borough Council [2001] 2 AC 619; [2000] 4 All ER 504.2 Such claims are not recognised in the United States, and the issue has not yet been directly addressed in Australia. However, the Australian consumer laws may provide a way for education institutions to be liable for failing to provide services with due care and skill.3

Non-delegable duty

9.75 The vulnerability of children and the degree of control exercised over them by school authorities has resulted in the school authorities’ duty of care being classified as a non-delegable duty of care: Ramsay v Larsen (1964) 111 CLR 16; Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577; New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412. See also Chapter 20.

School Authorities and Third Parties 9.76 School authorities owe an affirmative duty of care to supervise pupils to prevent damage to third parties: Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577. This duty extends to the protection of persons attempting to rescue pupils put in danger by a lack of supervision: Carmarthenshire County Council v Lewis [1955] AC 549. In Carmarthenshire County Council v Lewis, a day care centre was held liable to the estate of a truck driver who was killed when he swerved to avoid a four-year-old girl whose carers had allowed her to wander on to the highway.

Parent and Child 9.77 There is no principle of parent immunity for negligent supervision of children: Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [129]; St Mark’s Orthodox Coptic [page 175] College v Abraham [2007] NSWCA 185 at [31]. However, some judges have expressed the opinion that such immunity exists based upon legal policy and community expectations. For example, in Hoffman v Boland (by her tutor Boland) [2013] NSWCA 158 at [16], Basten JA stated: it is clear that questions of coherence arise in respect of an action in tort by a child against either

or both of his or her parents. However, it is not readily apparent how such issues are to be resolved. On the one hand, it may be thought to be supportive of such legal principles to allow a child to enforce parental obligations. On the other hand, it might be thought that to allow a child to bring proceedings in tort against a parent might be destructive of the underlying relationship which the law recognises, supports and seeks to maintain.

In that case, damages were sought from the grandmother of the six-monthold child for injuries suffered as a result of the grandmother falling down stairs as she held the baby in her arms. Basten JA held that in the circumstances no duty of care was owed, stating (at [40]) that a ‘mother owed no duty enforceable by an action in tort in respect of her ordinary day-to-day care of her baby; the grandmother was in a similar position and it follows that the child’s claim against her should have failed on the basis that she owed no duty of care enforceable in tort’. See also Robertson v Swincer (1989) 52 SASR 356 at 360–2 per King CJ. 9.78 Despite the fact that there is judicial opinion that the quality of supervision of a child by a parent does not give rise to a duty of care, the High Court in Hahn v Conley (1971) 126 CLR 276 is authority for the principle that a duty may be owed in certain circumstances. In Hahn v Conley (1971) 126 CLR 276, the grandchild was in the care of the grandfather who did not notice the child was crossing the road to him when the child was struck by a car. Windeyer J held (at 294) that the grandfather could owe a duty of care but it would not arise from the blood relationship but ‘from the particular situation’.

Scope of the duty 9.79 If the ‘particular situation’ gives rise to a duty of care, which may be due to the control the parent or guardian exercises over the child and the child’s vulnerability (St Mark’s Orthodox Coptic College v Abraham [2007] NSWCA 185 at [35]), the scope of that duty will be to exercise reasonable care not to expose the child to foreseeable harm. In St Mark’s Orthodox Coptic College v Abraham, the circumstances that

constituted the ‘particular situation’ were that the father had left his nineyear-old son at school at approximately 8.00 am when he knew, or should have known, there was no effective system of supervision for children before the commencement of school at 8.30 am. As Ipp JA evaluated the situation (at [35]): Taking a nine-year old child from his home environment and leaving him at school is conduct that will usually involve a potential risk of harm to the child (which will vary in degree depending on the circumstances). In my view, any parent who performs such an act may owe a duty to the child to take reasonable care in not exposing the child to foreseeable harm in doing so.

See also Tweed Shire Council v Howarth [2009] NSWCA 103 (parent who took child to a place close to a source of danger came under a duty to exercise reasonable care not to expose their child to foreseeable harm); Anderson v Smith (1990) 101 FLR 34 (grandmother negligent in failing to secure a gate to a swimming pool). [page 176]

Parent and Third Party 9.80 The general rule is that the law does not impose a duty upon a person to control the acts of another to prevent loss or harm to a third party: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; 176 ALR 411. However, due to parental control, a parent may owe a duty of care to a third party to control their children in such a manner as to prevent them causing injury to third persons or to their property: Smith v Leurs (1945) 70 CLR 256; Cameron v Commissioner for Railways [1964] Qd R 480; McHale v Watson (1964) 111 CLR 384. In McHale v Watson, a 12-year-old boy threw a homemade metal dart which accidentally hit the nine-year-old plaintiff in the eye, causing her

serious injury. The father, on his daughter’s behalf, sued both the boy and his parents. In considering the liability of the parents, Windeyer J stated (at 386): A parent is, generally speaking, not legally liable for the wrongdoing of his child. This is the rule of the common law … A parent may … be liable for the consequence of his child’s wrongdoing if his own negligence caused or provided the occasion for it. In that case the parent is not vicariously liable: he is liable because of his own negligence.

Scope of the duty 9.81

In Smith v Leurs (1945) 70 CLR 256 at 262, Dixon J stated:

Parental control, where it exists, must be exercised with due care to prevent the child inflicting intentional damage on others or causing damage by conduct involving unreasonable risk of injury to others.

9.82 The duty to control children also extends to those acting in the place of the parent. For example, in Curmi v McLennan [1994] 1 VR 513, the defendant was held responsible for the actions of a boy whom he permitted, along with his own son and others, to spend a weekend on his houseboat. On the houseboat was an airgun and ammunition which were easily accessible. The boy accidentally shot the plaintiff child who lost the sight of one eye. Gobbo J stressed the importance of the quality of instruction given to the boys, and said (at 522–3): Putting to one side his own son, there was nothing to suggest that the [defendant] had made inquiries to satisfy himself as to the prior experience or maturity of the boys in relation to the use of firearms … In this situation, there was a duty of care owed by the [defendant] to each of the boys who were using the houseboat and who were given access to the airgun.

Prison Authorities and Prisoners 9.83 Prison authorities owe a duty of care to prisoners and other detainees to prevent them being injured: Howard v Jarvis (1958) 98 CLR 177; Ellis v Home Office [1953] 2 All ER 149; Bujdoso v New South Wales (2004) 1512 A Crim R 235. The duty arises due to the control of the authority and the vulnerability of the prisoners: Price v New South Wales [2011] NSWCCA 341 at [35]; New South Wales v Godfrey & Godfrey [2004] NSWCA 113.

9.84 A duty will be owed by any body that has the authority to detain people. For example, the Commonwealth owes a duty of care to those it imprisons in immigration detention: [page 177] Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; 208 ALR 271 at [174]. In MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 LR 659 at [55], it was held that the Commonwealth was in a position of control and that the detainees could not be expected to safeguard themselves from danger. It may be that the duty of the Commonwealth is non-delegable, see AS v Minister for Immigration and Border Protection [2014] VSC 593 (Commonwealth accepted that it owed a non-delegable duty of care to provide reasonable healthcare to detainees, but questioned if the duty of the Minister was also non-delegable).

Scope of the duty 9.85 The scope of the duty is that the goaler must exercise reasonable care to avoid foreseeable risks to the prisoner: Howard v Jarvis (1958) 98 CLR 177; New South Wales v Napier [2002] NSWCA 402; Ellis v Home Office [1953] 2 All ER 149. In SBEG v Commonwealth (2012) 208 FCR 235; 295 ALR 81 at [19], the scope of the duty in relation to the detention of refugees was expressed as: an obligation of reasonable care to avoid harm to the detainee whether that harm be inflicted by a third person or by the detainee himself or herself. The risk of harm to the detainee is not the only matter to be considered in assessing whether reasonable care has been exercised: a consideration which must be addressed is the need to ensure effective detention in accordance with the law.

9.86 Risks may arise from other prisoners as well as by other means. In Howard v Jarvis (1958) 98 CLR 177, the appellant arrested and charged Jarvis

and locked him in the cell for the night. A few hours later, the appellant was notified that there was a fire but Jarvis was discovered dead in the cell. Jarvis’s wife sued in negligence. Dixon FJ, Fullagar and Taylor JJ held (at 183): We feel no doubt that … Howard [the appellant] was subject at common law to a duty to exercise reasonable care for the safety of Jarvis [the prisoner] during his detention in custody. He had deprived Jarvis of his personal liberty, and assumed control of his person. In arresting and detaining Jarvis he was no doubt acting lawfully and properly and in the due execution of his duty, but he was depriving Jarvis of his liberty, and he was assuming control for the time being of his person, and it necessarily followed, in our opinion, that he came under a duty to exercise care for the safety of his person during the detention.

In L v Commonwealth (1976) 10 ALR 269, the prison authority was held to owe a duty to a remand prisoner to keep him apart from convicted prisoners and was in breach of that duty when it placed him in a cell with two convicted prisoners whom the authorities knew, or should have known, were prone to violence. See also Dixon v Western Australia [1974] WAR 65. 9.87 The duty owed to prisoners should not, however, be equated to that owed by school authorities to their pupils: Quinn v Hill [1957] VR 439. In Nada v Knight (1990) Aust Torts Reports ¶81-032, the court held that the duty included taking only reasonable precautions and that it was important not to set too high a standard of care. 9.88 In England, it has been held that prison authorities owe a duty to identify prisoners who are at special risk of taking, or attempting to take, their own lives (Metropolitan Police [page 178] Commissioner v Reeves [2000] 1 AC 360; [1999] 3 All ER 897), but that there is no duty to guard against prisoners generally committing, or attempting to commit, suicide: Orange v Chief Constable of West Yorkshire Police [2002] QB 347.

Prison Authorities and Third Parties 9.89 Consistent with the duty of care that employers owe employees, prison authorities owe a duty to corrective service officers and other employees to protect them from attack by prison inmates: Ralph v Strutton [1969] Qd R 348. In regard to third parties outside of the prison, the duty will exist during the course of a prisoner’s escape and in the immediate vicinity of the prison in circumstances where the prison authorities are still capable of being able to reassert control over the escapee: New South Wales v Godfrey (2004) Aust Torts Reports ¶81-741. In New South Wales v Godfrey, the plaintiff was working in a Sydney newsagency when an escaped prisoner pointed a shotgun at her and demanded money. The plaintiff was 23 weeks pregnant at the time and eight days after the robbery gave birth to a child who suffered disabilities as a result of his premature birth. The robbery occurred two-and-a-half months after the prisoner had escaped from the minimum security section of Bathurst Goal. Spigelman CJ, with whom Sheller and McColl JJ agreed, held that it would be ‘ludicrous’ to suggest that the decision in Home Office v Dorset Yacht Co Ltd [1970] AC 1004 supported the imposition on prison authorities of a duty in regard to escaped prisoners which could be ‘found to encompass conduct hundreds of kilometres from, and months after, an escape’: at [31]–[34]. See also Lam v South Australia (2004) 234 LSJS 414; [2004] SADC 110. 9.90 Similarly, a parole board has no general duty to supervise prisoners released on parole: X v South Australia (No 2) (2005) 91 SASR 258. In Swan v South Australia (1994) 62 SASR 532, however, where the Parole Board had information that, in blatant breach of his parole conditions, a paroled paedophile was spending nights with young boys, a duty was held to be owed to the young boys concerned.

6

Professionals

9.91 A duty of care exists between a professional and their client: Groom v Crocker [1939] 1 KB 194; Voli v Inglewood Shire Council (1963) 110 CLR 74; Hawkins v Clayton (1988) 164 CLR 539. Originally, it was held that if a party to a contract suffered loss, the remedy lay only in the law of contract; but the common law has evolved so that concurrent duties under both contract and tort law may be owed: Astley v Austrust Ltd (1999) 197 CLR 1. 9.92 The law imposes a duty of care upon many professional relationships, for example: real estate agent and client (Georgieff v Athans (1981) 26 SASR 412); valuer and client (Smith v Eric S Bush [1990] 1 AC 831); accountant/auditor and client (Hardie (Qld) Employees Credit Union Ltd v Hall Chadwick & Co [1980] Qd R 362); medical professional and client (Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625); and legal professional and patient (Heydon v NRMA Ltd (2000) 51 NSWLR 1). [page 179] 9.93 Generally the content of the duty of care owed by a professional to a client is to exercise reasonable care in carrying out the service or retainer to avoid foreseeable loss. As discussed at 8.17, one of the factors which a court takes into account when determining whether the plaintiff owes the defendant a duty of care is the identification of the kind of harm or damage suffered as a result of the defendant’s negligent act or omission. In professional negligence cases, this is one of the first factors to consider when determining whether a duty of care is owed.

9.94 If the damage suffered is physical injury, then courts will usually have no difficulty in finding that a duty of care was owed by the professional. And despite the general exclusionary rule against a duty being owed in regard to pure economic loss (see 10.77), the relationship between a professional and their client is a well-established exception to this rule, although there may be difficult issues in regard to the scope of the duty. The situation is quite different if a third party to the professional relationship suffers damage in the form of pure economic loss: Hawkins v Clayton (1988) 164 CLR 539; Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 (Hill v Van Erp); Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241; 142 ALR 750. This section focuses on the established duties of care of the medical and legal professions.

Medical Professionals 9.95 It is well established that members of the medical profession owe a duty of care to patients: Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625; Roe v Minister of Health [1954] 2 QB 66; Hotson v Fitzgerald [1985] 1 WLR 1036; Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871; [1985] 1 All ER 643. 9.96 The term ‘medical professional’ has been interpreted broadly and includes doctors, dentists, surgeons, anaesthetists, pathologists, radiologists and nurses: Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577; Hribar v Wells (1995) Aust Torts Reports ¶81-345.

Scope of the duty 9.97 The scope of the duty owed by medical professionals was discussed by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 483; 109 ALR 625 at 628, where it was stated:

The law imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment; it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case.

In Rogers v Whitaker, the High Court held the defendant medical professionals liable because of the control they, as professionals, exercised over their clients and because the plaintiff was dependent on the defendants’ professional judgment and skills. The plaintiff was found to be vulnerable because she had to rely on the defendant ophthalmologist to warn her of any risks to her good eye associated with the surgery on her blind eye. Since the defendant did not warn the plaintiff of the one in 14,000 chance of developing [page 180] sympathetic ophthalmia in her good eye, the ophthalmologist was liable when the plaintiff then developed the disease in her good eye and became blind. This is despite the fact that there was no negligence in the carrying out of the operation itself. The High Court held that the plaintiff’s vulnerability required the scope of the defendant’s liability to extend beyond non-negligent treatment to the provision of relevant warnings about the dangers of the proposed treatment. See also Wallace v Kam (2013) 250 CLR 375; 297 ALR 383 at [8], where it was stated: The common law duty of a medical practitioner to a patient is a single comprehensive duty to exercise reasonable care and skill in the provision of professional advice and treatment. A component of that single comprehensive duty is ordinarily to warn the patient of “material risks” of physical injury inherent in a proposed treatment. A risk of physical injury inherent in a proposed treatment is material if it is a risk to which a reasonable person in the position of the patient would be likely to attach significance, or if it is a risk to which the medical practitioner knows or ought reasonably to know the particular patient would be likely to attach significance in choosing whether or not to undergo a proposed treatment. The component of the duty of a medical practitioner that ordinarily requires the medical practitioner to inform the patient of material risks of physical injury inherent in a proposed treatment is founded on the underlying

common law right of the patient to choose whether or not to undergo a proposed treatment. In imposing that component of the duty, the common law recognises not only the right of the patient to choose but the need for the patient to be adequately informed in order to be able to make that choice rationally. The policy underlying the imposition of that component of the duty is to equip the patient with information relevant to the choice that is the patient’s to make. The duty to inform the patient of inherent material risks is imposed to enable the patient to choose whether or not to run those inherent risks and thereby “to avoid the occurrence of the particular physical injury the risk of which [the] patient is not prepared to accept”. [footnotes omitted]

Legislation also exists in some jurisdictions, particularly in respect of health directives, that imposes a duty upon a medical practitioner to explain to a patient the nature, consequences and risks of the proposed treatment and the likely consequences if the treatment if not undertaken. See, for example, Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 15; Medical Treatment Act 1988 (Vic) s 5(1)(c).

Duty to third parties 9.98 A doctor may owe a duty of care to the unborn child of a patient if the child is born suffering harm from the doctor’s negligence. In X v Pal (1991) 23 NSWLR 26, the doctor’s negligence predated conception, but, nonetheless, the court held that the doctor owed a duty of care to the child subsequently born. The respondent, an obstetrician and gynaecologist, was negligent in failing to test X for syphilis during her first pregnancy. That child died and Y was born from a second pregnancy with deformities due to the syphilis of her mother. Clarke JA stated (at 41): … it should be accepted that a person may be subjected to a duty of care to a child who was neither born nor conceived at the time of his careless acts or omissions such that he may be found liable in damages to that child.

[page 181] 9.99 If the damage claimed is the fact that the child is born, for example if the doctor negligently failed to advise the mother of risks to the foetus,

depriving her of the choice of terminating the pregnancy, as in Harriton v Stephen (2006) 226 CLR 52; 226 ALR 391, a ‘duty of care cannot be clearly stated’: at [276] per Crennan J: see 12.11. 9.100 In Harvey v PD (2004) 59 NSWLR 639, the respondent and her partner had tests carried out to determine whether either had sexually transmitted diseases before getting married. The respondent and her partner saw the same doctor who was informed of the purpose of the tests. The test results of the respondent’s partner revealed he was HIV positive, but this information was not passed on to the respondent. The respondent sued the doctor in negligence, who claimed that due to privacy the results could not be shared without consent. The New South Wales Court of Appeal held that the doctor owed a duty of care to both parties and the duty included the need to address the need for consent for disclosure of the results at the initial joint consultation. If the negligence of a doctor results in the patient’s partner suffering injury, for example through contracting an infection, the scope of the doctor’s duty may extend to that third party: see CS v Bierdrzycka [2011] NSWSC 1213, where the plaintiff contracted HIV after two doctors in a medical practice failed to notify the plaintiff’s partner of a positive test result. Both doctors admitted liability in negligence.

Hospitals 9.101 A hospital owes a duty of care to its patients: Cassidy v Ministry of Health [1951] 2 KB 343; Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Samios v Repatriation Commission [1960] WAR 219. In Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542, the appellant was admitted to hospital for corrective surgery and became a paraplegic due to the negligent surgery in which her spinal cord was severed. It was pointed out that whether the hospital owed a duty of care involved an examination of the circumstances. The evidence was that the hospital had undertaken to provide

the appellant complete medical services through its staff, chosen by the hospital not the appellant. It was held (at 562): The hospital, by admitting the appellant, could be regarded as undertaking that it would take reasonable care to provide for all her medical needs; and, whatever legal duties were imposed upon those who treated, diagnosed or cared for her needs from time to time, there was an overriding and continuing duty upon the hospital as an organisation.

See also Roe v Minister of Health [1954] 2 QB 66. 9.102 Non-delegable duty The duty owed by a hospital to a patient is a non-delegable duty: see Chapter 20. In Kondis v State Transport Authority (1984) 154 CLR 672 at 686, one of the leading cases on non-delegable duties in Australia, the High Court noted: … undertaking an obligation to treat its patient, an obligation which carries with it a duty to use reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the obligation on its behalf acts without due care. … Accordingly, the duty is one the performance of which cannot be delegated, not even to a properly qualified doctor or surgeon under a contract for services.

[page 182]

Legal Professionals Solicitors 9.103 Solicitors owe a duty of care to their clients to exercise reasonable care in carrying out the terms of their retainer: Ross v Caunters [1980] Ch 297; White v Jones [1995] 2 AC 207; Heydon v NRMA Ltd (2000) 51 NSWLR 1. It is not necessary for the solicitor’s retainer to be express; it may be implied: Stringer v Flehr & Walker (2003) Aust Torts Reports ¶81-718; Simmons v Story [2001] VSCA 187 at [23]; Australian Energy Ltd v Lennard Oil NL [1986] 2 Qd R 216 at 237; Pergrum v Fatharly (1996) 14 WAR 92 at 94; Meerkin & Apel v Rossett Pty Ltd [1998] 4 VR 54 at 62.

9.104 In some circumstances, a solicitor may owe a duty to an opposing party, particularly if the solicitor goes beyond the normal role of a solicitor: Gran Gelato v Richcliff (Group) Ltd [1992] 2 WLR 867; Al-Kandari v J R Brown & Co [1988] QB 665 (Court of Appeal); Hardware Services Pty Ltd v Primac Association Ltd [1988] 1 Qd R 393. 9.105 It is also possible for a solicitor to act for both parties to a transaction, but it is discouraged by the courts: Commonwealth Bank of Australia v Smith (1991) 102 ALR 453 at 478; Clark Boyce v Mouat [1993] 3 NZLR 641. A solicitor acting for both parties must obtain the informed consent of both parties: Clark Boyce v Mouat; Lowy v Alexander [2000] NSWSC 661. Informed consent means that the consent is given with the knowledge of the conflict of interests of the parties, and that as a result the solicitor may be disabled from disclosing to each party the full knowledge which they possess as to the transaction or may be disabled from giving advice to one party which conflicted with the interests of the other: Clark Boyce v Mouat [1993] 3 NZLR 641. A solicitor acting for both parties must exercise due care and skill in the interests of each of the parties; the interests of one party cannot be paramount to the other: Moody v Cox & Hatt [1917] 2 Ch 71. Should a conflict arise that places the solicitor in the position of not being able to meet the duty of care owed to both of the parties, the solicitor should cease acting for either one, or both, of the parties: Stewart v Layton (1992) 111 ALR 687 at 712. 9.106 The established duty of a solicitor is owed to the client; however, the law has recognised that in some cases a solicitor may owe a duty of care to a third party: Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 (solicitor owed duty to disappointed beneficiary). This is a novel duty and is discussed at 10.97.

Scope of the duty 9.107

A solicitor must exercise due care, skill and diligence to carry out the

terms of his or her retainer. The scope of the duty will depend upon the terms of the solicitor’s retainer and any other assumed responsibility: Heydon v NRMA Ltd (2000) 51 NSWLR 1 at [146]. See also Moss v Eagleston [2014] NSWSC 6 (solicitor’s duty of care was restricted to drafting the statement of claim for breach of contract, not to advise as to possible actions in defamation or misleading or deceptive conduct). In Hawkins v Clayton (1988) 164 CLR 539 at 579, the High Court held that because a solicitor’s duty is founded in both contract (the retainer) and tort, the scope of the duty includes going [page 183] beyond the specific terms of the retainer if it is necessary to avoid a real and foreseeable risk of economic loss for the client. In May v Mijatovic (2002) 26 WAR 95 at [131] it was held: The duty of care may require the taking of positive steps beyond the specifically agreed professional task where those steps are necessary to avoid a real and foreseeable risk of loss.

9.108

It has been accepted that the scope of a solicitor’s duty may include:

a duty to warn a client of inherent risks that the client is not aware of (Capebay Holdings Pty Ltd v Sands [2002] WASC 287 — solicitors in breach of duty by failing to explain the financial consequences of a building encroachment); a duty to advise the client of all terms that may be important and influence the client’s decision in entering into the contract when advising on a contract (Sykes v Midland Bank Executor & Trustee Co Ltd [1971] 1 QB 113 — solicitor in breach of duty by failing to advise that a term of the contract allowed the head lessor to unreasonably withhold consent to a subletting); and a duty to fully advise of all possible outcomes to allow the client to

make an informed decision as to whether to proceed with a course of action: Hyland v Campbell (1995) Aust Torts Reports ¶81-352 — solicitors breached their duty by not pleading an action correctly and failing to warn of the possibility of not recovering damages. In Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515, the plaintiff mortgagee suffered loss when the valuation of the secured property was incorrect and therefore the true value was far less than was stated in the property valuation. The mortgagor and valuer were bankrupt, so the plaintiff sought damages from its solicitors claiming negligence for the failure to advise that the mortgagor’s statement of assets and liabilities was incorrect and they were unable to service the loan. The court noted that the duty of a mortgagee’s solicitor is ‘ordinarily confined to matters within the scope of the lender’s interest that the solicitor was engaged to protect, which appears from the retainer’ and for a loan transaction involves ‘obtaining a valid and enforceable security’: at [36]. After reviewing the authorities, Brereton J held (at [38]): Absent specific instructions, the scope of a lender’s solicitor’s responsibility includes the legal efficacy of the security, but not its value, nor the creditworthiness of the borrower; However, a solicitor is bound to report to the client matters discovered — or that ought to have been discovered — in the course of investigating title and preparing for completion, that a reasonably competent solicitor would regard as such as might cause the lender to doubt the correctness of the valuation, or some other ingredient of the lending decision.

9.109 Therefore, a solicitor will not usually be expected to advise a client as to the commercial efficacy of a transaction unless it is part of their retainer to do so: Kayteal Pty Ltd v Dignan (2011) 15 BPR 29,515; Littler v Price [2005] 1 Qd R 275 cf Waimond Pty Ltd v Byrne (1989) 18 NSWLR 642. See also Amadio Pty Ltd v Henderson (1998) 81 FCR 149 (solicitor advising on lease should have advised on absence of a clause to prevent the rent from decreasing upon review); Burke v LFOT Pty Ltd (2002) 209 CLR 282 (conveyance of commercial property subject to a lease, held that the solicitor should have advised

[page 184] client to make inquiries of financial standing of lessees). See also Robert Bax & Associates v Cavenham Pty Ltd [2012] QCA 177.

Barristers 9.110 The legal profession has traditionally been divided into barristers or counsel undertaking litigious or court work as advocates, and solicitors undertaking general legal work including preparation of cases for trial. Not all jurisdictions have a divided profession. In some states, such as Victoria, the roles of barristers and solicitors have been fused. Even in jurisdictions which retain a divided profession, the division between the two branches of the legal profession is often blurred; barristers undertake general advisory work unconnected with litigation and solicitors act as advocates. 9.111 Unlike between a solicitor and a client, there is no contractual relationship between a barrister and client, or between a solicitor and barrister. At common law, a barrister, or solicitor acting as an advocate, is also immune to being sued in negligence for anything done in court or in the course of the conduct of litigation: Rondel v Worsley [1969] 1 AC 191; Rees v Sinclair [1974] 1 NZLR 180; Biggar v McLeod [1978] 2 NZLR 9; Feldman v A Practitioner (1978) 18 SASR 238. The barristers’ immunity at common law is based upon the fundamental policy consideration that the administration of justice would be impaired if barristers were made accountable in negligence for litigious work. The immunity extends to the work of advocates in fused legal professions where no formal distinction is drawn between barristers and solicitors: Rees v Sinclair; Feldman v A Practitioner; Giannarelli v Wraith (1988) 165 CLR 543; 81 ALR 417. 9.112 The reasons for the immunity, sometimes referred to as a ‘no duty’ situation, were discussed by the High Court in Giannarelli v Wraith (1988)

165 CLR 543; 81 ALR 417, where a majority of the High Court held that s 10(2) of the Legal Profession Act 1958 (Vic) did not displace the common law immunity of a barrister (or a solicitor acting as an advocate) in respect of work done ‘in court’ and of work done ‘out of court’ leading to a decision affecting the conduct of the case. Their Honours also confirmed that the immunity rested on policy considerations such as the barrister’s overriding duty to the court and the undesirability of exposing court decisions to collateral attack by negligence actions against advocates. See also Keefe v Marks (1989) 16 NSWLR 713 at 718. 9.113 The issue of the immunity has been revisited in the United Kingdom, New Zealand and Australia. In the United Kingdom, in Arthur J S Hall & Co (a firm) v Simons [2002] 1 AC 615; [2000] 3 All ER 673, the House of Lords abolished the immunity of the barrister in both civil and criminal proceedings. Their Lordships considered there was no real basis for the argument that barristers would constantly be sued in negligence as, under normal principles, if the barrister was bona fide in his or her dealings, no liability would be found. Similar reasoning underpinned the New Zealand decision of Lai v Chamberlains [2005] 3 NZLR 291, when the Court of Appeal held that, in respect of civil cases, a barrister should be assessed against the standard of a reasonably competent practitioner, abolishing the traditional immunity. [page 185] 9.114 In Australia, the opportunity to reconsider the immunity arose in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92, where, by a 6:1 majority, the High Court confirmed that the traditional immunity of barristers continues to apply in Australia: see [96]–[103] per McHugh J. Kirby J, the sole dissent, rejected the need for the immunity, approving the House of Lords decision of Arthur J S Hall & Co (a firm) v Simons. See also the strong

dissent by Deane J in Giannarelli v Wraith (1988) 165 CLR 543 at 588; 81 ALR 417 at 445–6. 9.115 The immunity applies to what the advocate does in court and in the course of the conduct of the litigation. Recently there have been cases which examine whether particular acts fall within the conduct of litigation. In Stillman v Rusbourne [2015] NSWCA 410, the court considered whether advice given after court-appointed mediation to accept an offer of settlement was within the advocate’s immunity. A majority of the court held that the immunity applied. Gleeson CJ held (at [60]) that the advice as to the mediation was ‘work done out of court affecting the conduct of the case in court’. Simpson JA (at [71]) held that although mediation was not an exercise of judicial power, it was ‘a step in the process towards the exercise of judicial power’. Basten JA dissented, holding that as consent orders had been entered into before the trial commenced, and as there was no judicial determination of the case on its merits, the advocate’s immunity did not apply. The High Court in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1, held that advice given on a settlement during the course of a trial did not attract immunity. The court stated (at [52]): … the public policy which justifies the immunity is not concerned with the desirability or otherwise of settlements, but with the finality and certainty of judicial decisions.

Legislation 9.116 The common law duty of a solicitor is reflected in the Australian Solicitors Conduct Rules. Rule 4.1 provides that a solicitor must: 4.1.1 act in the best interest of the client in any matter in which the solicitor represents the client; … 4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible.

9.117 The Australian Solicitors Conduct Rules provide disciplinary action for unsatisfactory professional conduct and professional misconduct and

apply in addition to the common law: Australian Solicitors’ Conduct Rules r 2.2. ‘Professional misconduct’ includes conduct that involves a ‘failure to reach or maintain a reasonable standard of competence and diligence’: Glossary of Terms. 9.118 The legal profession legislation also provides for the regulation of legal practice and imposes consequences for unsatisfactory professional conduct and professional misconduct. See Legal Profession Act 2006 (ACT); Legal Profession Uniform Law Application Act 2014 (NSW); Legal Profession Act 2006 (NT); Legal Profession Act 2007 [page 186] (Qld); Legal Practitioners Act 1981 (SA); Legal Profession Act 2007 (Tas); Legal Profession Uniform Law Application Act 2014 (Vic); Legal Profession Act 2008 (WA).

7

Manufacturers of Goods

9.119 When Mrs Donoghue brought her action against Mr Stevenson, she was seeking compensation for the physical injury — the nausea and vomiting — caused by a defective bottle of ginger beer: Donoghue v Stevenson [1932] AC 562. She was not seeking recovery of the money paid for the snailcontaminated bottle of ginger beer. This section deals with defective products causing physical damage to a person or property, not the decrease in the value of the product itself. 9.120 A defective product may also cause pure economic loss taking it outside the scope of the established duty: see Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; Swick Nominees Pty Ltd v Leroi International Inc

(No 2) [2015] WASCA 35. However, it is more common that these actions are brought under the Australian Consumer Law, formerly the Trade Practices Act 1974 (Cth), discussed at 9.127. 9.121 Prior to the decision in Donoghue v Stevenson [1932] AC 562, the law of contract offered the only source of compensation for injuries caused by defective products: see 1.41. The common law did, however, recognise an exception to this general rule where products were inherently dangerous, such as explosives. The manufacturers or persons in control of these inherently dangerous products were held strictly liable for any damage caused, independently of the law of contract: Dixon v Bell (1816) 1 Stark 87; 171 ER 475. Such a person was also strictly liable for any damage caused to persons or their property by the escape of an inherently dangerous product: Rylands v Fletcher (1866) LR 1 Ex 265. The exception did not extend, however, to products which were inherently innocent, but made dangerous because of the manner in which they were used. 9.122 In Donoghue v Stevenson, the House of Lords decided that a manufacturer of a defective product, even if inherently innocent, could be made liable in tort to a person injured by the use of that product, even in the absence of contractual privity. Ironically, this resulted in the distinction between inherently dangerous and innocent products becoming obsolete; both now only required the taking of reasonable care in their manufacture and use: Read v Lyons & Co Ltd [1947] AC 156; Anderson v Enfield City Corporation (1983) 34 SASR 472; Todman v Victa Ltd [1982] VR 849. Nevertheless, an inherently dangerous product will require a higher standard of care in its manufacture, use, transportation, etc: Adelaide Chemical Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514; Anderson v Enfield City Corporation; Todman v Victa Ltd. This was conceded by the majority of the High Court in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 554 when they stated: … depending upon the magnitude of the danger, the standard of “reasonable care” may involve

“a degree of diligence so stringent as to amount practically to a guarantee of safety”.

9.123 It is not only manufacturers who owe a duty of care in regard to defective products. Everyone involved in the chain of distribution to the ultimate user of the product may owe a duty of care to a person who is injured, or whose property is damaged, by a defective [page 187] product. In Brand v Bardon [1997] NSWCA 48, it was held that the appellant owed a duty of care to the respondent, applying the principles of Donoghue v Stevenson [1932] AC 562, even though they were the importer and distributor of the goods. Other parties who may be owed a duty of care include: A retailer or supplier is under a duty of care to warn of any dangerous qualities of a product which are not a matter of common knowledge and which are known to the supplier: Clarke v Army & Navy Cooperative Society Ltd [1903] 1 KB 155; Laundess v Laundess (1994) 20 MVR 156 (reasonable foreseeability is not sufficient); McPherson’s Ltd v Eaton (2005) 65 NSWLR 187. Even in the case of a gift, the donor may be under a duty to warn of latent defects which are known to the donor: MacCarthy v Young (1861) 6 H & N 329; 158 ER 136. A person who supplies a defective article for a particular use may be liable for injuries caused to a person arising from the unfitness of the product for that use: Heaven v Pender (1883) 11 QB 503; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 54; 196 ALR 337. A person who is injured by the negligent installation of a product has a remedy against the installer under the general principle of Donoghue v Stevenson, and in the case of the installation of dangerous products, the standard may be higher: Dominion Natural Gas Co Ltd v Collins [1909] AC 640.

A bailee owes a duty of reasonable care to a bailor: Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd (1994) Aust Torts Reports ¶81-292. Liability may be imposed upon anyone who renders a product dangerous or fails to make it safe, and this will extend to repairers (Haseldine v Daw [1941] 2 KB 343; Jull v Wilson & Horton [1968] NZLR 88) and assemblers, erectors and distributors: Watson v Buckley [1940] 1 All ER 174. Where a public official has a duty to inspect a product, such as a motor vehicle, and to take some action on which others may rely (for example, issuing a statement such as a roadworthiness certificate for the motor vehicle), the official may be liable if the user is subsequently injured as a result of a defect which should have been discovered by the inspection: Rutherford v Attorney-General [1976] 1 NZLR 403: compare Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337. There is also no limit on the types of products which may be the subject of a defective product action: Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449.

Scope of the Duty 9.124 In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 at [29], McHugh J said: It is beyond doubt that a manufacturer of any product owes a duty to a consumer to take reasonable care to prevent the product causing injury or loss to the consumer.

In Donoghue v Stevenson [1932] AC 562, the House of Lords held that a manufacturer of products owes a duty to the consumer to take reasonable care when: [page 188]

the product is sold in such a form as to show that it is intended that it reach the ultimate consumer in the form in which it left the manufacturer; there is no reasonable possibility of intermediate examination; and it is reasonably foreseeable that the absence of reasonable care in the manufacture of the product will result in injury to the consumer. In Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA 35 at [131], the scope of the duty of a manufacturer was described as the exercise of reasonable skill and diligence ‘in the design and manufacturing process to produce a machine that is able reliably to perform its ordinary functions’. 9.125 A manufacturer must take all reasonable precautions to prevent injury to any person it can reasonably be foreseen could use the product without intermediate inspection: Donoghue v Stevenson [1932] AC 562; Grant v Australian Knitting Mills Ltd [1936] AC 85; Suosaari v Steinhardt [1989] 2 Qd R 477. 9.126 Reasonable precautions may include the need to provide a warning: Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48; Streets Ice Cream Pty Ltd v Australian Asbestos Installations Pty Ltd [1967] 1 NSWR 50. In Brand v Bardon [1997] NSWCA 48, the respondent ordered a face cream for sensitive skin from the appellant, indicating at the time of sale that she wanted it for sensitive skin. The cream caused a rash which then blistered and scarred. The appellant relied upon the decision of Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48 at 52, where Jordan CJ stated: Where the act is incapable of injuring an ordinary normal person, the person who does it owes no duty to do more by reason only of the possibility that a person of abnormally accentuated susceptibility may be affected by it. Special circumstances may, of course, give rise to a duty to take special precautions to avoid injury to particular abnormal persons known to be likely to be affected by a particular act; but the mere fact that abnormal persons exist in the community does not alter the general standards by which rights and duties are established … Persons who trade in and supply ordinary foodstuffs and articles of ordinary domestic use are, in my opinion,

subject to no duty to issue warnings that the use of such articles may cause discomfort or injury to abnormal persons who may be allergic to them.

However, in Brand v Bardon [1997] NSWCA 48, the Court of Appeal held that there were ‘special circumstances’ in the case before it as the respondent had indicated the cream was for sensitive skin and therefore the content of the appellant’s duty of care included providing a warning.

Legislation 9.127 Despite the advances in consumer protection which resulted from the decision in Donoghue v Stevenson [1932] AC 562, identifying the appropriate defendant(s), establishing a breach of the duty of care and bringing an action against defendants outside the jurisdiction still posed insuperable hurdles for many plaintiffs injured by defective products. These difficulties were considerably reduced by the Trade Practices Act 1974 (Cth), most significantly by Pt VA of the Act. However, the rights of action arising in negligence were not affected. [page 189] 9.128 The Competition and Consumer Act 2010 (Cth), replacing the Trade Practices Act, contains in Sch 2 the Australian Consumer Law. Chapter 3, Pt 3-5 of the Australian Consumer Law provides for liability of manufacturers for goods with safety defects. To bring an action under Pt 3-5, the defendant must be ‘a manufacturer’ (defined in Sch 2, s 7) and the goods must have a ‘safety defect’. Section 9(1) of Sch 2 provides that: … goods have a safety defect if their safety is not such as persons generally are entitled to expect.

Matters to be taken into account when applying this standard include (Sch 2, s 9(2)):

the presentation of the product (manner of presentation, existence of warnings, instructions, etc); what might reasonably be expected to be done with or in relation to the product; and the time at which the product was supplied by its producer to another person. The four substantive provisions providing a remedy for ‘consumers’ under the Australian Consumer Law for goods with safety defects are: s 138 (injuries suffered by an individual); s 139 (certain losses suffered by others as a result of those injuries); s 140 (certain losses suffered by persons as a result of destruction of or damage to goods caused by the defective goods); and s 141 (certain losses suffered by persons as a result of destruction of or damage to land, buildings or fixtures). To be able to bring an action under the Australian Consumer Law, the plaintiff must have suffered death or personal injury, or damage to property (other than the product itself) which is of a kind ordinarily acquired for personal, domestic or household use. The loss or damage suffered must not have resulted solely from the product being used unreasonably. If the loss suffered by a person claiming damages is caused by the defect and their own act or omission, s 137A of the Competition and Consumer Act 2010 (Cth) requires that the ‘amount of the loss or damage is to be reduced to such extent (which may be to nil) as the court thinks fit having regard to that individual’s share in the responsibility for the loss or damage’. 9.129 An action for damage caused by goods with a safety defect may lie against (Sch 2, s 7(1)): the manufacturer or producer of the product; any person who, by putting his or her name, trade mark or other

distinguishing features on the product, represents himself or herself as its manufacturer or producer; the importer where the manufacturer or producer is located outside Australia; or each person in the supply chain if the manufacturer or producer cannot be identified, unless, within a reasonable time, that supplier can identify the manufacturer or producer or the person from whom the product was acquired. 9.130 A person suffering loss from safety defect goods must bring the action within three years from becoming aware, or ought to have been aware, of the loss, the safety defect and [page 190] the identity of the manufacturer: Sch 2, s 143(1). Section 143(2) provides that an action cannot be brought 10 years after the supply of the goods by the manufacturer. For defences, see Sch 2, s 142.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 7. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 7.

1.

W R Cornish and G N Clark, Law and Society in England 1750–1950, Sweet & Maxwell, London, 1989, p 485.

2.

For the situation in Australia, see I M Ramsay, ‘Educational Negligence and the Legalisation of Education’ (1998) 11 UNSWLJ 11.

3.

See S Corones, ‘Consumer Guarantees and the Supply of Educational Services by Higher Education Providers’ (2012) 35 UNSWLJ 1. The author argues that the provision of educational services by a university is engagement in trade or commerce: at 6–7.

[page 191]

Chapter 10 Novel Duties of Care 1

Introduction

10.1 The majority of negligence actions will be based upon an established duty of care: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449. The law has little trouble in recognising a duty is owed when there is physical damage and consequential loss: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 at [15]. 10.2 It is when a plaintiff claims other forms of damage in negligence that the courts must identify whether a duty is owed outside the well-established duties of care. The precise identification of the loss may be significant because the harm for which compensation is being sought must be in relation to the violation of a recognised legal right, otherwise no duty of care will be recognised by the courts: Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [64]. As Ipp JA commented in Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [239]: It is impermissible in law to separate “harm” from the concept of “duty of care”. The proposition that actionable negligence is separate from proof of legally recoverable damage is contrary to the established principle that damage is the gist of the cause of action in negligence.

Spigelman CJ commented, in the same case, that in a problematic case the preferable starting point is ‘the identification of the loss which the [plaintiffs] have suffered and the determination of whether there was a duty with respect to that kind of loss’: at [11].

Apart from personal injury and physical property damage, a plaintiff may suffer pure psychiatric injury (injury that is not a consequence of their personal injury) or pure economic loss (not a consequence of any property damage) as a result of negligence. A plaintiff claiming either of these types of damage must argue that a novel duty of care is owed to them. If the relationship between the plaintiff and defendant falls within one of the established duties of care, but the loss suffered is either pure psychiatric injury or pure economic loss, the relationship is treated as novel as it must be questioned whether the scope of the duty extends to protect against such loss: see 9.5. 10.3 Further, due to policy grounds, for example the need to maintain coherency in the law, if a plaintiff alleges negligence against a public authority, it is treated as a novel duty, even if the loss suffered by the plaintiff is personal injury or physical property damage. [page 192] 10.4 This chapter examines the historical and current approaches of the courts in determining whether a duty of care is owed in a novel situation. It also discusses the novel duty of care in respect of: pure psychiatric injury; pure economic loss: –

relational loss (loss arising from damage to third party property);

–

negligent provision of services;

–

defective structures; and

public authorities. Pure economic loss resulting from misrepresentation is considered in Chapter 19.

Although categorised as novel, a body of case law exists in respect of each, identifying what in particular could influence a court in holding that a duty of care exists. Therefore, for each category of novel duty, the cases will be examined and these particular factors highlighted.

2

Historical Summary

10.5 Novel duties provide a legally more challenging situation mainly due to the fact that there is no simple test to determine whether a duty is owed. A variety of approaches to novel duties have developed and changed over the years since the decision of Donoghue v Stevenson [1932] AC 562. However, all approaches have been based upon Lord Atkin’s ‘neighbour’ principle and two fundamental principles of the law: 1.

the need for certainty in the law; and

2.

the need for the law to be able to adapt to, and reflect, changes in society.

The need for certainty in the law is often referred to as the ‘bright-line’ of certainty. As Brennan J commented in Bryan v Maloney (1995) 182 CLR 609 at 653; 128 ALR 163 at 191: … the law should be capable of application in solicitors’ offices. It should not have to await definition in litigation.

A lack of certainty in the law has the potential not only to bring the law into disrepute but also to create economic inefficiencies, especially in commercial contexts and those other situations where it is usual to arrange insurance to cover any potential liability in negligence. If the existence of a duty of care is uncertain, then potential defendants may over- or underinsure. The second fundamental principle is important, as McHugh J commented in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [92]:

While [abiding by precedent] is a sound policy because it promotes predictability of judicial decision and facilitates the giving of advice, it should not always trump the need for desirable change in the law. In developing the common law, judges must necessarily look to the present and to the future as well as to the past.

Also relevant is the need for the common law to be responsive to scientific, medical and technological developments: Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131. Kirby J commented in Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [86]: [page 193] The problem in the present case is, in large part, an outcome of new technology that permits genetic and other tests to identify grave foetal defects in utero and medical and social changes that permit abortions to occur in some such cases that once would have been impossible, unprofessional or even criminal. To apply logic alone would be to defy the wisdom of the law in responding to a novel problem. It is necessary to draw on past examples expressed in very different circumstances. But it is also necessary to adapt those principles to the circumstances of the present case in the present time.

The fact that the Australian High Court is able to overturn its own previous decisions is a recognition of the need for adaptability, but the reluctance of the court to do so acknowledges the countervailing importance of the need for certainty in the law. 10.6 In addition to these two fundamental principles of the common law, when making a decision as to whether a duty of care exists in a novel fact situation, a court also has to take into account the respective roles of courts and parliaments in law-making. As Gleeson CJ noted in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145 at [31] (Brodie): Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, and the other the concern of courts. They exist in a symbiotic relationship.

The decision in Brodie itself illustrates the tension which may arise between

the respective law-making roles of the courts and parliament and of reconciling the fundamental principles of the need for certainty and of the need for adaptability in the law. In Brodie, the central issue was whether the rule that a highway authority was not liable for a failure to repair a highway — the ‘highway rule’ — should be maintained or judicially re-expressed. Agreeing with the joint judgment of Gaudron, McHugh and Gummow JJ, Kirby J stated in support of the reexpression of the rule: The criticisms of the rule … demand the conclusion that it is unprincipled and anomalous in character and elusive and disputable in operation. It does not even have the merit of certainty … This is not, therefore, a rule that has simply been overtaken by social change or other advances in legal doctrine: at [277].

The three justices in dissent (Gleeson CJ, Hayne and Callinan JJ) acknowledged the deficiencies in the content and application of the ‘highway rule’ but, ultimately, decided that any change should be the province of parliaments, not the courts. For example, Hayne J concluded that: The solution to that problem lies in the hands of the legislatures, not the courts. It is the legislatures which create the authorities. It is they who provide for the powers, duties and resources of the authorities. It is they who can most readily regulate when and to what extent individuals who suffer injury may recover from the authorities concerned: at [336].1

[page 194] 10.7 The difficulty in defining a unifying principle to identify a duty of care was noted by Hayne J in Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 at [250]: “Neighbourhood”, “proximity”, the so-called “tripartite” test said to be derived from Lord Bridge’s speech in Caparo Industries Plc v Dickman [[1990] 2 AC 605 at 617–18; [1990] 1 All ER 568 at 573–4], “vulnerability”, “general reliance” are all different attempts that have been made to identify a satisfactory means of describing or defining the circumstances in which a duty of care should be found to exist. At least some of these tests have now been rejected as either being insufficiently informative or being inadequate to provide coherence in this area of the law. None

has proved to be an all-embracing explanation for the way in which the law has developed and is developing. [footnotes omitted]

Reasonable Foreseeability 10.8 In the cases decided in the decades immediately after the decision in Donoghue v Stevenson [1932] AC 562, Lord Atkin’s explanation of the ‘neighbour’ principle at 580 (see 8.11) was interpreted as establishing ‘reasonable foreseeability’ as being the appropriate test for establishing whether a duty of care existed in novel fact situations: Bourhill v Young [1943] AC 92. The test was explained as requiring only a general foreseeability of the kind of event that happened and not the precise sequence of events: Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 at 220; Chapman v Hearse (1961) 106 CLR 112. Since the reasonable foresight test alone could not be applied in every case to determine the existence of a duty, there was clearly some other relevant factor in deciding this question. It is now acknowledged that the additional factor is judicial policy, discussed below at 10.32.

The Anns Approach 10.9 The need to accommodate and acknowledge policy considerations led to a reformulation of Lord Atkin’s test by Lord Wilberforce in Anns v London Borough of Merton [1978] AC 728 (Anns), building upon comments by Lord Diplock in Home Office v Dorset Yacht Co Ltd [1970] AC 1004. According to the ‘Anns approach’, the existence of a duty of care depended upon a two-stage test: first, was the harm reasonably foreseeable?; and second, if it was, were there any policy grounds on which the law should negate, or limit, the scope of the duty? Lord Wilberforce attempted to bring policy out from its influential but

closeted existence by overtly recognising policy as the second stage in a twotiered approach to the duty of care question. 10.10 The general approach in Anns, and its specific application in local authority cases, was initially accepted by Australian courts: Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268; Clarke v President, Councillors and Ratepayers of the Shire of Gisborne [1984] VR 971; Travis v Vanderloos (1984) 54 LGRA 268 at 272. This acceptance was mirrored in other jurisdictions, particularly in New Zealand (for example, in Takaro Properties Ltd v Rowling [page 195] [1978] 2 NZLR 314), and in Canada (for example, in Nielsen v City of Kamloops 10 DLR (4th) 641 (1984)). 10.11 But the approach was not without its critics, particularly with regard to the ease of satisfaction of the first stage, based, as it then appeared to be, purely upon the factual test of reasonable foresight. The appropriateness of an assumed prima facie duty for every category of case was, furthermore, questionable. Consequently, during the 1980s and 1990s, some members of the Australian High Court turned to the degree of proximity in the relationship between the plaintiff and defendant as a means of determining whether a duty of care should be owed in novel categories of case.

The Proximity Approach 10.12 The use of proximity as a unifying principle in the recognition of a duty of care in novel fact situations was advocated by Deane J, with whom Gibbs CJ agreed, in the pure psychiatric injury case of Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417. Deane J stated (at CLR 584; ALR 444):

[Proximity] involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant, circumstantial proximity such as an overriding relationship of employer and employee or of a professional man and his client and causal proximity in the sense of the closeness or directness of the relationship between the particular act or cause of action and the injury sustained …

His Honour explained the important feature of proximity as being a ‘continuing general limitation or control of the test of reasonable foreseeability’: at CLR 584; ALR 443. The control was not to operate upon the individual case but rather upon the category of case into which the individual case fell. After the reasonable foreseeability of the kind of harm requirement was satisfied, the proximity approach comprised two stages: 1.

an assessment of the degree of closeness of the relationship between the plaintiff and defendant including: (a) physical proximity (in terms of time and space); (b) circumstantial proximity (such as the overriding relationship of employer and employee or professional and client); and (c) causal proximity between the particular act or course of action and the injury; and then

2.

an evaluation of the legal consequences of that assessment.

Policy considerations could be articulated in conjunction with the first stage for the particular category of relationship, leaving the opportunity for further exclusion on different, more general policy grounds at the second stage. 10.13 Proximity was used by the High Court in a number of difficult duty cases in the intervening decade to 1995. See, for example, Jaensch v Coffey (1983) 155 CLR 549; Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513; San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986)

[page 196] 162 CLR 340; 68 ALR 161; Gala v Preston (1991) 172 CLR 243; 100 ALR 29; and Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163. In none of these cases, however, did the justices relying on proximity articulate the detailed steps in the process initially outlined as a two-stage process. Instead, the application of the proximity test in actual cases led to the conclusion that proximity was being used simply as a formula to announce a result, and not as an explanation of how the steps in that process led to that result. 10.14 It was not surprising, therefore, that after changes in the composition of the High Court in 1995 and 1996 (particularly the retirements of Mason CJ and Deane J), when the court was next required to consider whether a duty of care was owed in a novel fact situation, there was less enthusiasm for the concept of proximity. In Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 (Hill v Van Erp), in which the critical issue was whether a solicitor can owe a duty to the beneficiary under a client’s will, the majority of the justices either redefined the role of proximity or entirely rejected the role previously claimed for the concept. For example, McHugh J commented (at CLR 210; ALR 725): The use of the concept or principle of proximity as the criterion of duty has not increased the predictability of judicial decisions or given a real explanation of the grounds upon which a duty of care is imposed in many economic loss cases … the present case has reinforced my scepticism as to whether the concept of proximity gives any real guidance in determining the existence of a duty of care in difficult and novel cases.

The Caparo Approach 10.15 Related to the proximity approach is the three-stage Caparo approach, identified by Lord Bridge of Harwich in Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617–18: The first stage requires, in common with all approaches, determining

whether the kind of damage to the plaintiff was a reasonably foreseeable result of the defendant’s negligence. Second, if the damage was foreseeable, then a determination of whether the relationship between the plaintiff and the defendant is sufficiently proximate to justify the imposition of a duty of care is required. The third and final stage requires a consideration of whether it is ‘fair, just and reasonable’ to impose a duty of care in the particular circumstances of the case. In Australia, the main advocate of the Caparo approach was Kirby J in cases such as Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606; and Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1. However, it did not attracted the support of other members of the High Court, and in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404, both the proximity and Caparo approaches were rejected in the single joint judgment of Gleeson CJ and Gaudron, McHugh, Hayne and Callinan JJ: The formula is not “proximity”… It expresses the nature of what is in issue, and in that respect gives focus to the inquiry, but as an explanation of a process of reasoning leading to a conclusion its utility is limited … That is so, whether it is expressed as the ultimate test of a duty of care,

[page 197] or as one of a number of stages in an approach towards a conclusion on that issue. What has been described as the three-stage approach of Lord Bridge of Harwich in Caparo Industries Plc v Dickman does not represent the law in Australia: at [48]–[49].

See also Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [48]; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337 at [232]ff; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522 at [158]; Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [62]–[63].

The Incremental Approach 10.16 At the same time that Deane J was developing the proximity approach, Brennan J, in the same court and in the same cases, was advocating the ‘incremental approach’ as the replacement for the Anns two-stage approach. This approach rejects the proposition that there is a ‘unifying principle’ or ‘some general conception of relations giving rise to a duty of care’. For example, in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 481; 60 ALR 1 at 43–4, Brennan J stated that it was preferable: … that the law should develop novel categories of negligence incrementally and by analogy with the established categories rather than by a massive extension of a prima facie duty of care restrained only by indefinable “considerations which ought to negative or to reduce or limit the scope of the duty or the class of person to whom it is owed”.

10.17 While there are variations of the incremental approach,2 an essential feature of the approach is the rejection of the concept that novel cases can be decided by the application of a broad unifying principle of liability such as proximity. Instead, the approach advocates: first, that the law should develop incrementally; and second, that there are different ‘pockets’ or categories of liability in negligence with each category being governed by different, although complementary, legal principles and policy considerations. 10.18 In a novel fact situation, the incremental approach requires the identification, by analogy, of a similar category (or categories) of duty cases. Using a process of induction and deduction, the factors which were relevant in that category of case then can be identified and applied to the case in hand. An additional feature of the incremental approach is that it tends to be conservative in approach and to see the creation of new rights as being the province of the legislatures, rather than the common law courts; however, the incremental approach might also ‘reveal’ common law rights that have not previously been acknowledged.

10.19 With the eclipse of the proximity approach, other members of the Australian High Court, in addition to Brennan J, have given qualified support to the incremental approach. For example, in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606, McHugh J [page 198] supported the incremental approach, but appeared to do so on the basis that it was the ‘last approach left standing’. His Honour said about the incremental approach: It is not an approach that appeals to grand theorists who prefer to decide cases by general principles applicable to all cases. But in an area of law … which is still developing … there is no alternative to a cautious development of the law on a case by case basis. Perhaps another unifying principle may emerge and gain widespread acceptance … Until a unifying principle again emerges, however, the best solution is to proceed incrementally from the established cases and principles: at [93].

Callinan J in Brodie (2001) 206 CLR 512; 180 ALR 145 at [316], however, commented more bluntly, saying that the High Court had: … at least for the moment, retreated to what is thought to be the safe haven of incremental development, perhaps hoping that, in time, a unifying principle or principles will emerge.

10.20 Criticisms of the incremental approach include the fact that it becomes ‘an accident of history’ whether a duty will be held to exist, depending upon the point in time at which the particular novel fact situation falls to be decided: see, for example, Gummow J in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1. Callinan J, in Brodie, also drew attention to the difficulty of determining, in a novel case, which particular category or categories of case are sufficiently analogous to justify finding whether or not a duty of care should be owed: see, for example, Brodie at [317]; Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52.

10.21 The incremental approach, with its inbuilt discretions, appears to provide no greater certainty or predictably than the approaches previously discarded by the High Court. Nevertheless, despite the lack of enthusiasm for the incremental approach among the members of the High Court, in the decade since the decision in Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687, no other unifying principle has emerged to gain widespread acceptance in Australia or in the common law world generally. In these circumstances, the High Court has abandoned the search for some ‘unifying principle’ or ‘general conception of relations giving rise to a duty of care’ as referred to by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580. As their Honours said in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [50]–[52]: Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is ‘fair’ or ‘unfair’.

Similar sentiments about the lack of a single unifying principle to explain when a duty of care is owed were recently expressed by Bryson J (with whom Mason P agreed) in Sutherland Shire Council v Becker [2006] NSWCA 344 at [97]: With the benefit of observations of the High Court in Sullivan v Moody (2001) 207 CLR 562 at 578–579 it can be seen that it is no longer appropriate to use proximity as an explanation of the process of reasoning leading to a conclusion of duty of care. It can be seen that proximity expresses the nature of what is in issue, but it is authoritatively established that it no longer is acceptable as an explanation of the process of reasoning. Notwithstanding its centrality in negligence law

[page 199] for more than a century, and its ready use to explain decisions for many decades, referred to in Sullivan v Moody, the limits of its utility should now be respected. Neither ‘proximity’ nor any other formulation is readily available in exposition of the basis of decision on duty of care.

The Salient Features Approach

10.22 The salient features approach has been applied by the High Court, particularly in the novel categories of case involving pure economic loss (by Gummow J, for example in Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687) and public authorities (for example by Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337). The salient features approach was discussed by Stephen J in Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227, where his Honour found a duty was owed to the plaintiff on the basis of identifying the ‘salient features’ of the circumstances surrounding the parties’ relationships. Stephen J considered that these salient features combined to create a sufficiently close relationship for the defendant shipowners to owe a duty of care to Caltex, who suffered pure economic loss when the defendant severed a pipeline connecting its oil terminal with that of Australian Oil Refining Pty Ltd refining facilities. 10.23 In Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606, Gummow J expressed his preference for Stephen J’s salient features approach over the incremental approach, saying (at [201]): I prefer the approach taken by Stephen J in Caltex Oil. His Honour isolated a number of “salient features” which combined to constitute a sufficiently close relationship to give rise to a duty of care owed to Caltex for breach of which it might recover its purely economic loss.

In Perre v Apand, the plaintiffs grew potatoes for export to Western Australian markets. The defendant imported potato seeds infected with bacterial wilt and planted them on a property neighbouring the plaintiff’s property. As a result of the detection of the disease on the neighbouring property, the plaintiffs were legislatively prohibited from selling their potatoes in Western Australia. This was because the legislation prohibited the importation of potatoes from within a 20 km radius of an affected property regardless of whether the disease had been detected on the other properties within that radius. 10.24

In applying the salient features approach, Gummow J identified

several features of the relationships in Perre v Apand as justifying the imposition of a duty of care, including the defendant’s control of the situation and, despite the commercial context in which they were operating, the plaintiffs’ vulnerability. These salient features of control and vulnerability are central to those factors requiring judicial evaluation, discussed below (at 10.28) in the context of the High Court decision in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404.

3

The Current Approach of the High Court

10.25 In Fugro Spatial Solutions Pty Ltd v Cifuentes [2011] WASCA 102 at [98]–[99], it was noted: The law of negligence in Australia has in large measure moved away from inflexible fixed rules, control mechanisms and categories in favour of rules of general application. …

[page 200] However, the considerations or factors that underpinned the imposition of fixed rules, control mechanisms and categories continue to be relevant to an assessment of whether there is a duty of care, although the weight attaching to them may differ according to the circumstances of a particular case.

Sullivan v Moody 10.26 The approach applied by High Court in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 forms the basis of the current approach to novel duty cases in Australia: The kind of harm suffered by the plaintiff must be recognised as being compensable and an infringement of a legally recognised right.

The harm must also be recognised as having been a reasonably foreseeable result of the defendant’s negligent conduct: Donoghue v Stevenson [1932] AC 562. Consistent with the incremental approach, the current approach requires an analogy to be made with an established category (or categories) of duty cases. Then, by using a process of induction and deduction, the factors which were relevant in that category of case can be identified and applied to the case in hand. 10.27 However, since the suggested duty is novel (or falls on the boundary of an established category), the next stage in the application of the Sullivan v Moody approach involves the identification of the specific problems associated with the class or category of case with which the analogy has been made. It is at this stage that the salient features approach may be relevant because of its focus on the specific features of the parties’ relationships justifying the imposition of a duty of care. 10.28 The final stage of the Sullivan v Moody approach is a judicial evaluation of the factors for and against the recognition of a duty of care in the particular case under consideration. The factors requiring judicial evaluation could, depending upon the circumstances and relationships of the individual case, include: the type of legally recognised right the plaintiff claims the defendant has infringed, for example property or commercial rights, rights of personal integrity (Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391); the nature of the relationship between the plaintiff and the defendant compared with other duty relationships, for example co-workers,

professional and client (Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337); the factual context in which the proposed duty arises, including the degree of control exercised by the defendant over the situation in which the harm to the plaintiff occurred (Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1; Perre v Apand (1999) 198 CLR 180; 164 ALR 606 (for example, Gaudron J at [33]); Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687); [page 201] the vulnerability of the plaintiff and the degree to which the plaintiff is able to protect against violation of its own personal and property rights, which is something more than mere reliance (Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports ¶81-692; Perre v Apand (1999) 198 CLR 180; 164 ALR 606; Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100; Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391); the need to preserve the coherency of the law and the integrity of existing legal relationships, including contractual and statutory responsibilities, duties and obligations (Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408; Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon (2014) 253 CLR 270; 314 ALR

505; Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337); indeterminacy issues, including whether the imposition of liability will greatly exceed fault (Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227; Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200); decisions of overseas jurisdictions and recommendations of law reform agencies (Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200; Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145); and ethical and moral considerations, such as those referred to by Lord Atkin in Donoghue v Stevenson [1932] AC 562, including the protection of what are widely regarded as fundamental human rights: Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52, especially the judgment of Kirby J. Note the warning against treating these factors as an exhaustive list in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649 at [104], where after listing 17 salient features, Allsop P stated: There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a nonexhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.

10.29 The basis of the plaintiff’s action in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 was his wife’s allegation that he had sexually abused their young daughter. Pursuant to its powers under the Community Welfare Act 1972 (SA), the South Australian Department of Community Welfare had investigated the allegation and referred the child to a medical practitioner who came to the conclusion that the child had been sexually abused.

However, no criminal charges were laid against the father and when the matter was pursued in Family Court proceedings, between the plaintiff and his wife, the plaintiff was successful: at [12]. [page 202] The plaintiff subsequently brought an action in negligence against the doctor who carried out the examination and the department for authorising and acting upon the examination results. The damage claimed was ‘shock, distress and psychiatric harm, and consequential personal and financial loss’: at [15]. The plaintiff alleged that the defendants were negligent both in carrying out the medical examination and in the investigation into the allegations of sexual abuse. In a single joint judgment, the High Court held that the defendants owed no duty of care to the father. Their Honours rejected both the proximity (see 10.12) and Caparo (see 10.15) approaches to determining whether a duty of care exists in novel fact situations: at [48]–[49]. Instead, their Honours considered that: Different classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care … The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle: at [53].

The defendants had conceded that the kind of harm suffered by the plaintiff was compensable and a reasonably foreseeable result of the defendant’s negligent conduct. The main issue was whether the nature of the plaintiff’s relationship with the defendants was such that they owed him a duty of care. The ‘problem’ identified by the High Court in this ‘class of case’ was that the negligent conduct essentially concerned the communication of information, that being the results of the examination of the child and the allegation of sexual abuse. If the action had been brought in defamation,

defences would have been available which are not available in a negligence action: at [54]. Therefore, the court held that to recognise a duty of care owed to the plaintiff, in these circumstances, would undermine the coherency of the common law. While their Honours acknowledged that it is possible for a person (or government authority) to owe a duty to more than one person, in this case they considered that the proposed duty cut across, and conflicted with, the more established duties owed by the defendants at common law and under the Community Welfare Act 1972 (SA). Consequently, to find that a duty was also owed to the plaintiff would be inconsistent with these common law and statutory duties and, for this reason as well, should not be recognised: at [60]. The spectre of indeterminate liability, both in terms of doctors’ liability to third parties and in terms of the duty owed by the department to the alleged perpetrators of sexual abuse, also arose for consideration in the circumstances of this case. The plaintiff argued that the parent–child relationship provided the necessary limitation on the scope of the duty of care owed by the defendants. The High Court rejected this argument, saying that if such a duty was recognised, there was no reason, in principle, why it could not be extended to others, such as teachers and extended family members. Since there was no remaining identifiable legal right which the plaintiff could show to have been violated, there was no basis upon which to hold that the defendants owed the father a duty of care: at [62]–[64].

Reasonable Foreseeability 10.30 As with every duty of care, the damage suffered by the plaintiff must be the reasonably foreseeable consequence of the defendant’s breach. In several of the cases [page 203]

decided since its decision in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404, the High Court has revisited Lord Atkin’s neighbourhood test of reasonable foreseeability in Donoghue v Stevenson [1932] AC 562. For example, in the pure psychiatric injury cases of Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100 and Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355, the High Court has paid far more attention to the issue of reasonable foreseeability than had been its practice. 10.31 In Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, several members of the High Court challenged the perception that reasonable foreseeability is an ‘undemanding’ test and simply a matter of factual predictability. McHugh J commented that: Because reasonable foreseeability is a compound conception of fact and value, policy considerations affecting the defendant or persons in similar situations arguably enter into the determination of whether the defendant ought reasonably to have foreseen that his or her acts or omissions were “likely to injure your neighbour”: at [108].

Callinan J endorsed the approach of recognising reasonableness as a touchstone for whether a duty of care should be owed and that the concept of reasonableness should take into account the ‘realities of ordinary life’: at [331]. Gleeson CJ opined (at [12]): It is important that “reasonable foreseeability” should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.

His Honour also stated: ‘Ultimately, reasonableness defies rigorous categorisation of its elements’: at [35].

Legal Principle v Legal Policy 10.32

Kirby J has written:3

Legal principle comes from an analysis of the emerging common themes of multiple decisions in

connected areas of the law. Being itself a captive of past decisions, legal principle will not always be of great assistance. In such circumstances, the quandary of judicial choice can be helped, and judicial reasons will be made more transparent, by the identification of any policy considerations that the judge takes into account. Novel cases require judges with the responsibility of decision to evaluate the choices they make by reference to considerations of legal policy. In the past, such questions were commonly submerged in judicial reasoning expressed in verbal formulas. However, in most countries of the common law today, judges in the higher courts, evaluate new cases by candid reference to, and evaluation of, considerations of legal policy. Judicial attention to considerations of policy is not new. What is new is the open judicial acknowledgment of it.

10.33 One of the earliest open acknowledgments of the influence of policy, or normative considerations, on decisions in novel duty situations was by Lord Reid in Home Office [page 204] v Dorset Yacht Co Ltd [1970] AC 1004. In that case, a government department, the Home Office, negligently allowed some juvenile boys to escape from a correctional facility. An action was brought against the department by members of the public seeking compensation for property damage caused by the boys during their escape. In finding for the plaintiffs, the House of Lords rejected the department’s claim of an immunity. Lord Reid said: ‘I can see no good reason in public policy for giving this immunity to a government department’: at 1033. As discussed above at 10.9, Lord Wilberforce also acknowledged the importance of policy considerations in Anns v London Merton Borough Council [1978] AC 728, as the second stage of a two-tiered approach to whether a duty of care is owed in a novel fact situation: … the position has now been reached that in order to establish that a duty of care arises in a particular situation … the question has to be approached in two stages … Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed for the damages to which a breach of it may give rise: at 751–2.

Legal Policy v Public Policy 10.34 In discussing the role of policy in determining whether a duty of care exists in a novel fact situation, it must first be understood that there is a distinction between legal policy and public policy. In Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 at [75], McHugh and Gummow JJ endorsed the following statement by Lord Radcliffe: Public policy suggests something inherently fluid, adjusted to the expediency of the day, the proper subject of the minister or the member of the legislature. The considerations which we accept as likely to weigh with them are just not those which we expect to see governing the decisions of a court of law. On the contrary, we expect to find the law indifferent to them, speaking for a system of values at any rate less mutable than this.4

10.35 Second, it should be understood that the dividing line between legal principle and legal policy is often difficult to discern. Stapleton, for example, has written: But I have yet to hear a compelling account of the difference between principle and policy. Is a concern that liability not be indeterminate a principle or a policy? Is the judicially stated concern that the law should not positively encourage abortion a principle or a policy?

She suggests instead: In my opinion, therefore, we should ditch both the “principle” and “policy” terminology, and simply describe these concerns neutrally as ‘legal concerns’ while openly acknowledging that ‘the law takes on new values and sheds old ones as society changes’.5

10.36 Finally, it must be understood that the courts can only consider policy considerations in the absence of binding authority applying to the facts of the particular case. Moreover, even in the absence of relevant legal principles, the policies applied to decisions in novel duty situations must be anchored in the legal principles and policies which have [page 205] developed during the more than 800-year history of the common law.

Nevertheless, the decision as to the choice of the relevant principles and policies may in itself include a value or policy judgment. For example, Callinan J, in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145 at [317], drew attention to the difficulty of determining in a novel case which particular category or categories of case are sufficiently analogous to justify finding whether or not a duty of care should be owed.

An example 10.37 An example of the selective use of legal principles and policy is provided by the High Court decision in Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52. The plaintiff, Mrs Cole, brought an action against the club because it had not prevented her from leaving its premises when its employees knew she was in an intoxicated condition. The plaintiff had been drinking at the club from approximately 9.30 am until 6.00 pm, although the club’s employees had last served her alcohol at 12.30 pm. Cole refused an offer by the club’s manager of a lift home and left the club. She was approximately 100 metres from the premises when she was struck by a motor vehicle. At that time she had a blood alcohol reading of 0.238, the equivalent of about 16 standard drinks. Cole sued the motorist and the club and was partially successful against both, in that they were each held 30 per cent liable, while she was held 40 per cent contributorily negligent. On appeal, both defendants were successful and Cole appealed to the High Court in relation only to the action against the club. By a 4:2 majority, the High Court rejected Cole’s appeal. Gleeson CJ and Callinan J separately held that the club owed no duty of care to the plaintiff. Gummow and Hayne JJ, in a joint judgment, rejected the appeal on the grounds that even if there was a duty of care owed (a point their Honours declined to decide), there was no breach of that duty. In dissent, McHugh and

Kirby JJ each held that the club did owe a duty of care to Cole and that the other elements of the negligence action were also satisfied. Fundamentally, Cole v South Tweed Heads Rugby League Football Club Ltd concerned two long-established but, in the circumstances of the present case, conflicting common law principles: the first was the general rule that ‘a person has no legal obligation to rescue another’: at [15] per Gleeson CJ; and the second, that an occupier of premises ‘owes a duty to take reasonable care for the safety of those who enter the premises’: at [30] per McHugh J. In their reasons, generally, Gleeson CJ and Callinan J placed greater reliance on the first principle, while McHugh and Kirby JJ thought the second was more important in all the circumstances of the case. Another relevant issue was the New South Wales legislation governing the operation of clubs — the Registered Clubs Act 1976. Gleeson CJ and Callinan J considered that no greater duty should be imposed on the club than that contained within s 44A of the legislation: at [16] per Gleeson CJ. McHugh and Kirby JJ, on the other hand, considered that, while the Act itself did not give rise to a statutory cause of action, the Act revealed parliament’s recognition and acceptance of the vulnerability of persons who consume excessive amounts of alcohol, and that the common law should do likewise: for example, at [95] per Kirby J. [page 206] The essential difference between the approaches of Gleeson CJ and Callinan J, and that of McHugh and Kirby JJ, were their respective views as to the relevant duty category and underlying policy considerations in cases of this kind. For example, Gleeson CJ commented (at [18]): The consequences of the [plaintiff’s] argument as to duty of care involve both an unacceptable burden upon ordinary social and commercial behaviour, and an unacceptable shifting of responsibility for individual choice. The argument should be rejected.

In contrast, Kirby J was critical of the ‘withered view of community and legal neighbourhood propounded by Gleeson CJ and Callinan J’: at [93]. His Honour commented (at [94]): … to hold that the Club owed no duty of care by the standards of the common law of negligence, to patrons such as the [plaintiff], is unrealistic … The policy reasons, concerned with free will and personal autonomy, that might in other circumstances justify withholding the imposition of a duty of care are overridden, in the case of the Club, by the commercial interest it had in the presence of the appellant on its premises and the known propensity of the alcoholic product, made available there, to expose at least some individuals to the risk of serious harm.

4

Scope of the Duty

10.38 As with established duties of care, the scope of the novel duty must be identified to allow the issue of breach to be determined: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; 276 ALR 375 at [22]; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 at [8]. The scope of the novel duty is defined with reference to the loss suffered by the plaintiff and the conduct of the defendant. 10.39 The statutory context, within which the common law operates, may be relevant to a court deciding the existence and nature or scope of a common law duty of care. This has been stressed by the High Court in cases such as Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337, where McHugh J commented that a statutory power is not the source of a common law duty of care, but that it may be an important factor in finding that a common law duty of care also was owed: at [80]. Comments to similar effect were made by Gummow and Hayne JJ in New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [26], when their Honours commented that, when determining the existence or boundaries of a duty of care in a novel fact situation: … it is necessary and important to recognise that [the duty is] framed in a way that takes proper

account of the statutory framework provided … for the performance of police duties.

See also Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761; Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52.

5

Pure Psychiatric Injury

10.40 The common law has traditionally been reluctant to recognise pure psychiatric injury as a compensable kind of damage, primarily because of concerns about imaginary [page 207] and pretend claims. These concerns were compounded by the fear of a ‘flood’ of claims and the difficulty of knowing where to draw the line between physical and psychiatric injury.6 The initial approach of the common law courts, therefore, was to hold that pure psychiatric injury (or ‘nervous shock’, as it was then called) was not a kind of damage recognised by the common law: Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222; Dulieu v White [1901] 2 KB 669. 10.41 After the decision in Donoghue v Stevenson [1932] AC 562, the test for whether a duty of care was owed in regard to pure psychiatric injury became whether that kind of injury was reasonably foreseeable by the defendant when the breach of the duty occurred: Bourhill v Young [1943] AC 92; McLoughlin v O’Brian [1983] AC 410; Attia v British Gas plc [1988] QB 304; Jones v Wright [1991] 3 All ER 88. In 1939, the test of reasonable foreseeability was used by the Australian High Court in Chester v Waverley Corporation (1939) 62 CLR 1 to justify holding that no duty of care was owed to a mother who suffered nervous

shock after witnessing her child’s dead body being retrieved from a ditch. The decision was based upon the somewhat surprising finding by the High Court that nervous shock might have been foreseeable if the mother had actually seen the child drown, but not where all she saw was the recovery of the child’s body: see also Boardman v Sanderson [1964] 1 WLR 1317. 10.42 However, it was the High Court decision in Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417 which set the scene in regard to determining whether pure psychiatric injury could be recovered in a negligence action for the remainder of the 20th century. The plaintiff in Jaensch v Coffey developed a psychiatric illness, characterised by anxiety and depression, due to what she saw and heard at the hospital to which her husband had been admitted after being seriously injured due to the defendant’s negligent driving. Although the plaintiff was not injured herself, nor present at the scene of the accident, she witnessed the aftermath at the hospital where her husband was treated soon after the accident. In these circumstances, the High Court held that the factual circumstances of the close and loving relationship between the plaintiff and the victim meant that it was reasonably foreseeable that she could suffer a pure psychiatric injury. Whether a duty of care will be owed in relation to a pure psychiatric injury is now governed by the same general principles as other negligence actions: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449. 10.43 To prove a duty of care, the plaintiff must establish that they are suffering a recognised psychiatric injury that is the reasonably foreseeable consequence of the defendant’s negligent act or omission. Then under the current approach to establishing a novel duty, the relevant factors identified in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 must be considered. The cases in this category of novel duty highlight that reasonable foreseeability, the relationships between the parties, the control of the

defendant and the vulnerability of the plaintiff and the issue of indeterminacy are particularly relevant. [page 208]

Recognised Psychiatric Injury 10.44 The first Australian High Court decision to recognise the existence of a duty of care in regard to pure psychiatric injury was Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383; [1971] ALR 253. The employer was held to be in breach of the duty it owed to its employee when he went to the rescue of workmates who had suffered massive burns as a result of their employer’s negligence. Recovery was limited to those circumstances where an identifiable psychiatric or psychopathological disorder was diagnosed. Windeyer J stated (at CLR 394; ALR 258–9): Sorrow does not sound in damages. A plaintiff in an action of negligence cannot recover damages for a “shock”, however grievous, which was no more than an immediate emotional response to a distressing experience sudden, severe and saddening. It is, however, today a known medical fact that severe emotional distress can be the starting point of a lasting disorder of mind or body, some form of psychoneurosis or a psychosomatic illness. For that, if it be the result of a tortious act, damages may be had.

In Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 at [193], the High Court held: In Australia … a plaintiff who is unable affirmatively to establish the existence of a recognisable psychiatric illness is not entitled to recover. Grief and sorrow are among the “ordinary and inevitable incidents of life”; the very universality of those emotions denies to them the character of compensable loss under the tort of negligence. Fright, distress or embarrassment, without more, will not ground an action in negligence.

See also Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 198 ALR 100; CSR Ltd v Della Maddalena (2006) 80 ALJR 458. 10.45

The civil liability legislation in some jurisdictions provides that there

is no recovery in negligence unless the mental harm is a recognised psychiatric illness: Civil Law (Wrongs) Act 2002 (ACT) s 35(1); Civil Liability Act 2002 (NSW) s 31; Civil Liability Act 1936 (SA) s 53(2); Civil Liability Act 2002 (Tas) s 33; Wrongs Act 1958 (Vic) s 75; Civil Liability Act 2002 (WA) s 5S(1). 10.46 In regard to consequential psychiatric injury, the common law allows recovery for mental harm, however minor, provided it is consequential upon a physical injury: Nader v Urban Transit Authority (1985) 2 NSWLR 501. This continues to be the situation in Queensland and the Northern Territory. In other Australian jurisdictions, the common law has changed by virtue of the legislation: Civil Law (Wrongs) Act 2002 (ACT) s 35(2); Civil Liability Act 2002 (NSW) s 33; Civil Liability Act 1936 (SA) s 53(3); Civil Liability Act 2002 (Tas) s 35; Wrongs Act 1958 (Vic) s 75; Civil Liability Act 2002 (WA) s 5T. In these jurisdictions, consequential mental harm is compensable only if it amounts to a ‘recognised psychiatric illness’. See Flight Centre Ltd v Louw (2010) 78 NSWLR 656 where it was held that although the appellant had suffered pure mental harm (inconvenience, distress and disappointment suffered as a result of interruption of appellant’s holiday at a tropical resort due to construction work), it did not consist of a recognised psychiatric illness for the purposes of s 31 of the Civil Liability Act 2002 (NSW). [page 209]

Reasonable Foreseeability 10.47 The issue of reasonable foreseeability may be influenced by the factual context (including any contractual or statutory duties and obligations) of the relationships between the parties to the action: Gifford v Strang Patrick

Stevedoring Pty Ltd; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355. 10.48 The foreseeability of the plaintiff’s psychiatric injury must be assessed as at the time of the negligent act or omission: Koehler v Cerebos (Australia) Ltd. Since the decision of Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, the test for reasonable foreseeability in claims of pure psychiatric injury involves a consideration of normal fortitude, direct perception and sudden shock. Gaudron J explained (at [59]): It is in the context of foreseeability that the “sudden shock” and “normal fortitude” rules fall for consideration. When the law limited claimants to those who, by reason of their closeness in time or space, directly perceived distressing phenomena or their aftermath, as was implicit in the categories of persons identified by Evatt J in [Chester v Waverley Corporation (1939) 62 CLR 1 at 44], it was inevitable that the law should select sudden shock as that which rendered foreseeable the risk of psychiatric injury. So, too, because “reasonable foreseeability is an objective criterion of duty” [Jaensch v Coffey (1984) 155 CLR 549 at 568; 54 ALR 417 at 431 per Brennan J], it is understandable that the law selected “a normal person of ordinary firmness and mental stability” [Chester v Waverley Corporation (1939) 62 CLR 1 at 28 per Evatt J] as a general test of foreseeability of the risk of psychiatric injury in the case of those who directly perceived distressing events or their aftermath.

Normal fortitude 10.49 In Jaensch v Coffey (1984) 155 CLR 549 at 556; 54 ALR 417 at 421, Gibbs CJ stated: It may be assumed (without deciding) that injury for nervous shock is not recoverable unless an ordinary person of normal fortitude in the position of the plaintiff would have suffered some shock.

10.50 In Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449, the appellant was involved in a motor vehicle collision due to the fault of the other driver who had a blood alcohol content reading of 0.14. A police officer subsequently completed the details of the traffic collision report by

mistakenly recording both drivers’ blood alcohol content as 0.14. This error was detected within a short time and corrected. The appellant was awarded damages for the injuries she received in the accident, but during negotiations it was discovered that the insurer had a copy of the unamended report. The appellant became obsessed with the mistake on the form, worrying about the effect the mistake would have on her reputation, despite being told that it had been corrected and receiving a formal apology from the Police Service. The appellant was diagnosed as suffering from psychotic depressive illness, and the evidence was that the appellant was predisposed to psychotic depression. The appellant sued in negligence claiming that the police officer owed a duty of care and that the state was vicariously liable as the employer. [page 210] The High Court held that reference to the hypothetical person of ‘normal fortitude’ was merely the application of a standard to assist in determining the reasonable foreseeability of harm and was not to be used to deny recovery to a plaintiff unless they are of ‘normal fortitude’: at [199] per Gummow and Kirby JJ. McHugh J explained (at [109]–[110]): Once the notion of reasonableness regains its rightful place at the front of the negligence inquiry, it must follow that a defendant is entitled to act on the basis that there will be a normal reaction to his or her conduct. The position is different if the defendant knows that the plaintiff is in a special position. But otherwise the defendant should not be penalised for abnormal reactions to his or her conduct. To insist that the duty of reasonable care in pure psychiatric illness cases be anchored by reference to the most vulnerable person in the community — by reference to the most fragile psyche in the community — would place an undue burden on social action and communication. To require each actor in Australian society to examine whether his or her actions or statements might damage the most psychiatrically vulnerable person within the zone of action or communication would seriously interfere with the individual’s freedom of action and communication. To go further and require the actor to take steps to avoid potential damage to the peculiarly vulnerable would impose an intolerable burden on the autonomy of individuals.

Ordinary people are entitled to act on the basis that there will be a normal reaction to their conduct. It is no answer to say that the defendant ought to be liable to peculiarly vulnerable persons because the defendant is guilty of careless conduct. The common law of negligence does not brand a person as careless unless the law has imposed a duty on that person to avoid carelessly injuring others.

10.51 If the defendant is aware of the plaintiff’s ‘special position’, this will affect the issue of whether the risk of psychiatric injury was reasonably foreseeable. In Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355, the appellant sued her employer in negligence for the psychiatric injury she suffered in the course of her employment. The appellant could not carry out her duties to her satisfaction and repeatedly informed management that changes had to be made. Five months after commencing work the appellant fell ill, and the evidence was that she was suffering from a psychiatric illness caused by her work. The High Court held that the risk of psychiatric illness was not reasonably foreseeable. McHugh, Gummow, Hayne and Heydon JJ held (at [28]): In this case it is enough to notice that her agreement to undertake the work runs contrary to the contention that the employer ought reasonably to have appreciated that the performance of those tasks posed a risk to the appellant’s psychiatric health. It runs contrary to that contention because agreement to undertake the work not only evinced a willingness to try but also was not consistent with harbouring, let alone expressing, a fear of danger to health. That is why the protests the appellant made (that performance of the work within the time available seemed impossible) did not at the time bear the significance which hindsight may now attribute to them. What was said did not convey at that time any reason to suspect the possibility of future psychiatric injury.

See also Woolworths Ltd v Perrins [2015] QCA 207 at [72], where it was stated that ‘the notion that informing an employee that they had failed to meet certain objective criteria, [page 211] expected of all employees, previously laid down and previously advised,

would result in decompensation into psychiatric illness does not seem to me to be “reasonably foreseeable”’.

Direct perception 10.52 The House of Lords in McLoughlin v O’Brian [1983] 1 AC 410 allowed recovery for psychiatric illness suffered by the plaintiff after attending the hospital at which her husband and children were at after being involved in an accident. Lord Wilberforce held that ‘the shock must come through sight or hearing of the event or of its immediate aftermath’: at 423. The High Court considered this case in Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417, in which also the plaintiff did not witness the accident which injured her husband, but witnessed the aftermath of the accident at the hospital. Deane J held (at CLR 591; ALR 449–5): The fact that a husband or wife goes straight to the hospital where his or her injured spouse is being, or has been, taken rather than to the actual scene of the accident cannot rationally be said to have the effect that the relevant risk of injury by way of nervous shock can no longer be regarded as having been reasonably foreseeable. For that matter, it is easy to envisage circumstances, such as an injury to the spinal cord caused in a bloodless accident, in which the shock sustained by involvement in the aftermath of the accident on attendance at the hospital would render insignificant any shock which was or would have been sustained by prior attendance at the scene of the accident. Indeed, the present would appear to be such a case in that the more serious injuries sustained by Mr Coffey, namely the injuries to his liver and kidneys, were only identified after he had been taken to hospital. If the scope of the duty of care of a user of the highway is to be limited as extending only to other users of the highway and those persons who actually attend the scene of an accident, it must be on some basis other than a genuine or realistic consideration of reasonable foreseeability. It follows that the answer to the first of the above questions is that the fact that Mrs Coffey sustained nervous shock at the hospital rather than at the scene of the accident cannot rationally be seen as having the consequence that the risk of such injury to her was not reasonably foreseeable.

10.53 In Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, the High Court had to consider whether it was reasonably foreseeable that the appellants, parents of the respondent’s employee, would suffer psychiatric injury even though they did not present at the incident or the aftermath. In that case the appellants’ son went to work as a jackeroo for

the respondent in Western Australia. Prior to their son’s employment, the appellants made inquiries of the respondent as to the safety arrangements and only agreed to his employment upon being assured that he would be under constant supervision. After only seven weeks, their son was sent to work alone as a caretaker in a remote location. It was then discovered that he was missing and the circumstances were such to indicate he was in grave danger. When the police informed Mr Annetts of this over the telephone, he collapsed. A prolonged search was carried out and two months later the son’s bloodstained hat was found, but it was not for another three months that his body was found. The appellants had travelled from their home in New South Wales to Western Australia several times upon discovering that their son was missing. Mr Annetts returned to Western Australia to identify the remains of his son from a photograph. The members of the High Court observed that to allow only plaintiffs who have directly perceived a distressing event or its aftermath to recover for psychiatric harm was ‘apt [page 212] to produce arbitrary outcomes and to exclude meritorious claims’: at [221]. Gaudron J reasoned that the ‘direct perception’ rule was not determinative of those who may claim in negligence for pure psychiatric harm: at [51]. Gleeson CJ held that to differentiate between parents of a child lost in a desert and those who witness their child being run down by a car, was indefensible when the parents suffered the same harm: at [36]. 10.54 In Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100 at [9], Gleeson CJ reiterated that: Rejection of a “control mechanism”, such as the need for direct perception of an incident or its aftermath, originally devised as a means of giving practical content to that consideration, does not involve rejection of the consideration itself.

The distance in time and space from the event are to be taken into account when considering whether the psychiatric harm is reasonably foreseeable, but a lack of direct perception of the incident or its aftermath does not preclude a duty of care: Tame v New South Wales; Annetts v Australian Stations Pty Ltd; Gifford v Strang Patrick Stevedoring Pty Ltd. 10.55 If a lack of direct perception does not preclude a duty of care, this raises the question of how far may reasonable foreseeability of psychiatric harm extend? Gummow and Kirby JJ in Tame v New South Wales; Annetts v Australian Stations Pty Ltd at [225] noted that the means of communication may be relevant to reasonable foreseeability. The Queensland Court of Appeal decision of Hancock v Nominal Defendant [2002] 1 Qd R 578 may predate the decisions of the High Court, but it allowed recovery of damages for psychiatric harm even though the plaintiff did not attend the scene of the accident which killed his son or its aftermath. The plaintiff was referred to by the court as a ‘secondary victim’ due to his lack of direct perception. The death of his son was communicated to the plaintiff by telephone the morning after the motor vehicle accident. The police informed the plaintiff that the deceased’s body was so badly injured that visual identification would not be possible. It took until midafternoon for dental records to confirm that the deceased was in fact the plaintiff’s son. Davies JA extensively reviewed the case law of the United Kingdom, France, Germany and Australia and other common law countries in his judgment. His Honour referred to the judgment of Kirby P (as he then was) in Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR l at 10: … hearing by telephone, or by later oral message, can, in today’s world, be just as foreseeable and just as directly related to the wrong sued upon as if the vulnerable observer had received the shocking perception by his or her own eyes and ears at the moment of the relevant wrong. The rule of actual perception is in part a product of nineteenth century notions of psychology and psychiatry. In part, it was intended as a shield of policy against expanding the liability of

wrongdoers for the harm they caused. And in part, it was a reflection of nineteenth century modes of communicating information.

10.56 Note, however, when the plaintiff has not witnessed the accident or the aftermath, the cases refer to the close relationship between the plaintiff and the victim as relevant: Coates v Government Insurance Office of New South Wales at 9–10; Hancock v Nominal Defendant [2002] 1 Qd R 578; Tame v New South Wales; Annetts v Australian Stations Pty [page 213] Ltd (2002) 211 CLR 317; 191 ALR 449 at [222]; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100: Some jurisdictions have legislation that prevents an award of damages unless the plaintiff was at the scene of the accident or is in one of the specified relationships with the victim: see 10.59.

Sudden shock 10.57 From Deane J’s judgment in Jaensch v Coffey (1984) 155 CLR 549; 54 ALR 417, it was understood that to be able to recover for pure psychiatric injury the plaintiff must have suffered a sudden shock: see, for example, Reeve v Brisbane City Council [1995] 2 Qd R 661 at 675–7; Pham v Lawson (1997) 68 SASR 124 at 149. This was also the approach in England: see, for example, Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 at 400, 401, 417; Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 at [17]. 10.58 However, a majority of the High Court in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 held (Callinan J dissenting) that the requirement of sudden shock was not a part of Australian law: at [18], [66], [213], [236]. Therefore, in Annetts v Australian

Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, it was not fatal to the appellants’ claim that the psychiatric injury had developed over time as they waited for the son to be found. Gleeson CJ stated (at [36]): The process by which the applicants became aware of their son’s disappearance, and then his death, was agonizingly protracted, rather than sudden. And the death by exhaustion and starvation of someone lost in the desert is not an “event” or “phenomenon” likely to have many witnesses. But a rigid distinction between psychiatric injury suffered by parents in those circumstances, and similar injury suffered by parents who see their son being run down by a motor car, is indefensible.

See also Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR 23 at [27]–[29].

Civil liability legislation 10.59 Although it was not part of the Ipp Report recommendations, all jurisdictions, except the Northern Territory and Queensland, included mental harm in the civil liability legislation. For example, s 32 of the Civil Liability Act 2002 (NSW) provides: (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to take care not to cause the plaintiff mental harm unless the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken. (2) For the purposes of the application of this section in respect of pure mental harm, the circumstances of the case include the following: (a) whether or not the mental harm was suffered as the result of a sudden shock. (b) whether the plaintiff witnessed, at the scene, a person being killed, injured or put in peril. (c) the nature of the relationship between the plaintiff and any person killed, injured or put in peril.

[page 214] (d) whether or not there was a pre-existing relationship between the plaintiff and the defendant. See also Civil Law (Wrongs) Act 2002 (ACT) s 34; Civil Liability Act 1936 (SA) s 33; Civil Liability Act 2002 (Tas) s 34; Wrongs Act 1958 (Vic) s 78; Civil Liability Act 2002 (WA) s 5S. In Wright bht Wright v Optus Administration Pty Ltd [2015] NSWSC 160, the court held that s 32(2) of the Civil Liability Act 2002 (NSW) restated the law as in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449. However, subsection (1) added the requirement that the plaintiff had to establish that the defendant ought to have foreseen that a person of normal fortitude might suffer a recognised psychiatric illness in the circumstances: at [81].

Relevant Factors 10.60 The fact that the risk of pure psychiatric harm is reasonably foreseeable does not by itself impose a duty of care upon the defendant. Under the approach of Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404, a court must also consider the nature of the relationships between the parties, the vulnerability of the plaintiff, the control of the defendant, any indeterminacy issues and the coherency of the law.

Relationships between parties 10.61 In establishing a duty of care for pure psychiatric injury, the relationships between the parties is an important factor. The nature of the parties’ relationships is particularly important where the plaintiff indirectly suffers a pure psychiatric injury (sometimes referred to as the ‘secondary victim’). This usually occurs because the plaintiff is in a ‘close and loving relationship’ with the victim but was not present during the shocking event or

its immediate aftermath. As Gaudron J commented in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 at [52]: To identify those who may claim for pure psychiatric injury as those who should be in the contemplation of the person whose acts or omissions are in question as persons closely and directly affected is not to say that the categories of persons who may recover damages for pure psychiatric injury are open-ended. Save for those who fall within the ‘direct perception rule’, as extended by Jaensch v Coffey, a person will be able to recover for psychiatric injury if there is some special feature of the relationship between that person and the person whose acts or omissions are in question such that it can be said that the latter should have the former in contemplation as a person closely and directly affected by his or her acts.

10.62 In Annetts, the court took into account the fact that the appellants were the parents of the victim who was an employee of the respondent. Also important was the fact that there was a relationship between the appellants and the respondent, as the appellants had sought reassurance from the respondent as to the safety of their 16-year-old son before agreeing to his employment with them. Hayne J held (at [237]): The connections between the parties indicate the existence of a duty of care. An antecedent relationship between the plaintiff and the defendant, especially where the latter has assumed some responsibility to the former to avoid exposing him or her to a risk of psychiatric harm, may supply the basis for importing a duty of care.

[page 215] See also Hancock v Nominal Defendant [2002] 1 Qd R 578. 10.63 It is not necessary that the plaintiff be related to the victim. In Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100 at [48], McHugh J stated: It is the closeness and affection of the relationship — rather than the legal status of the relationship — which is relevant in determining whether a duty is owed to the person suffering psychiatric harm. The relationship between two friends who have lived together for many years may be closer and more loving than that of two siblings. There is no policy justification for

preventing a claim for nervous shock by a person who was not a family member but who has a close and loving relationship with the person harmed or put in peril. In a claim for nervous shock at common law, the reasonable foresight of the defendant extends to all those with whom the victim has or had a close and loving relationship.

Vulnerability and control 10.64 When referring to vulnerability of the plaintiff in claims for pure psychiatric injury, the reference is to the issue of whether the plaintiff was unable to protect themselves against the harm, not that they were vulnerable in the sense of being more susceptible to psychiatric harm. That issue would be considered in relation to the reasonable foreseeability of the harm: Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449. 10.65 The appellants in Annetts had to rely upon the respondent as the employer of their 16-year-old son to ensure that he was supervised properly and therefore were vulnerable. There was similar control by the respondent in Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100. In that case the High Court held that the appellants were vulnerable in that they could not protect themselves against the psychiatric harm. Further, the respondent had control over the workplace, giving it control of the risk to its employee and therefore control of the risk of psychiatric harm to the appellants: at [90]. 10.66 In Sklavos v Australasian College of Dermatologists [2016] FCA 179, the appellant claimed that the respondent owed him a duty of care to exercise reasonable care to avoid psychiatric injury when it made allegations, reports and sanctions for breaches of professional behaviour. The appellant was a trainee with the respondent, a relationship that was formally documented with the respondent having power over the appellant’s progress through the training program that lasted a number of years. Although the respondent denied the existence of a duty of care, no arguments were made on this issue before the court. However, Jagot J noted that the respondent was in a position of control as it had assumed responsibility for the training of the appellant

and the training program was the only pathway in Australia to enable a doctor to practise as a dermatologist. The appellant had only limited means to protect himself from the respondent’s exercise of power and therefore was vulnerable.

Indeterminacy 10.67 When the plaintiff suffers pure psychiatric harm due to a negligent act or omission in which they are involved, the issue of indeterminate liability is unlikely to prevent a duty of care being owed as the class of plaintiff would be restricted and loss ascertainable. [page 216] 10.68 However, if the plaintiff is a secondary victim, indeterminate liability may be a relevant issue. The requirement of a relationship of close ties of affection between the plaintiff and the victim addresses this issue and as Butler notes: It is a fallacy to believe, for example, that merely because a physically injured person has a family, every member of that family, or even any member of that family will necessarily suffer a pathological reaction as a result of the physical injury, although it is reasonable to expect that all or most members of the family might to varying degrees experience any combination of unpleasant emotions.7

10.69 Some jurisdictions sought to ensure that there are limits upon liability in respect of secondary victims: see Civil Law (Wrongs) Act 2002 (ACT) Ch 3 Pt 3.2; Civil Liability Act 2002 (NSW) Pt 3; Civil Liability Act 1936 (SA) ss 33, 53; Civil Liability Act 2002 (Tas) Pt 8; Wrongs Act 1958 (Vic) ss 73, 74; Civil Liability Act 2002 (WA) Pt 1B. The effect is that only certain plaintiffs may be awarded damages for mental harm if they were a secondary victim. 10.70

Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; 267 ALR 23

examined s 30(2) of the Civil Liability Act 2002 (NSW), which states: The plaintiff is not entitled to recover damages for pure mental harm unless: (a) the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril, or (b) the plaintiff is a close member of the family of the victim.

In that case the appellants suffered psychiatric injury due to attending the scene of a passenger train derailment where passengers had been killed and injured. The appellants, police officers, attempted to rescue survivors. The High Court held (at [45]–[52]) that the respondent owed the appellants a duty of care and that s 30(2)(a) of the Civil Liability Act 2002 (NSW) did not preclude them from recovering damages. The appellants witnessed the surviving passengers being injured or put in peril while they were participating in the rescue. In King v Philcox (2014) 320 ALR 398, the High Court examined the South Australian provisions. Section 53(1) of the Civil Liability Act 1936 (SA) provides: Damages may only be awarded for mental harm if the injured person— (a) was physically injured in the accident or was present at the scene of the accident when the accident occurred; or (b) is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident.

The respondent’s brother died in a motor vehicle accident due to the negligence of the appellant. When he heard of the accident, the respondent realised he had driven past the scene when his brother was trapped in the car and dying. As a result, the respondent developed a major depressive order. The High Court held that the appellant owed the respondent a duty of care not to cause mental harm as under s 33 of the Civil Liability Act 1936 (SA) and had breached that duty. However, damages could not be awarded as the respondent was not ‘present at the scene of the accident when the accident occurred’, [page 217]

as being in the same locale after the accident did not satisfy this requirement. Keane J held (at [53]): Although it may be said that the accident was causally related to the mental harm from which he suffered, that harm was not the result of direct exposure to the sights and sounds of the accident. Accordingly, the respondent’s mental harm was, by reason of s 53(1)(a) of the Act, too remote from the appellant’s negligent driving to be compensable.

The court held that the effect of the provision was to restrict the award of damages to a parent, spouse, domestic partner of child of the victim, unless the plaintiff was physically injured in the accident themselves or was at the scene of the accident, and that to view the aftermath of the accident was insufficient.

Coherency 10.71 In Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449, the High Court thought that to recognise a duty of care would interfere with the coherency of the law. The appellant alleged that a police officer had been negligent in completing the traffic collision report which caused her psychiatric injury. Police officers could not properly carry out investigations if the law imposed a duty to take reasonable care to avoid causing stress to the subject of the investigation: at [26] per Gleeson CJ, [57] per Gaudron J, [231] per Gummow and Kirby JJ, [298] per Hayne J. See also Hunter and New England Local Health District v McKenna; Hunter and New England Local Health District v Simon (2014) 253 CLR 270; 314 ALR 505 (to recognise a duty of care would be inconsistent with the duties and responsibilities of the doctors and hospitals in respect of involuntary detention of mentally ill persons and the Mental Health Act 1990 (NSW)). Some members of the court in Tame also were of the opinion that the proper cause of action was defamation as the claim involved the appellant’s reputation: at [28] per Gleeson CJ, [58] per Gaudron J, [123] per McHugh J. To impose a duty of care would therefore infringe upon the law of defamation.

Pure Psychiatric Injury in an Established Duty 10.72 If the plaintiff and defendant are within an established duty category, but the claim is for pure psychiatric harm, then the case is treated as novel as it requires a consideration of whether the scope of the established duty extends to foreseeable psychiatric injury: see 9.5. In Woolworths Ltd v Perrins [2015] QCA 207 at [42], it was stated: While it is trite law to assert that every employer owes to each employee a duty to exercise reasonable care not to injure that employee, and further to assert that the duty extends as much to foreseeable risks of psychiatric harm as to physical harm, the content of the duty of care is not at large but needs to bring into account the contract that existed between the parties.

10.73 The scope of the duty owed by an employer to an employee in regard to pure psychiatric injury was considered by the High Court in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; 214 ALR 355. In Koehler, the plaintiff argued that her psychiatric illness was caused by the defendant employer’s failure to reduce, in response to her complaints, the excessive workload stipulated by her contract of employment. While ultimately agreeing [page 218] with the Court of Appeal, that there was no breach of the duty of care, McHugh, Gummow, Hayne and Heydon JJ also considered that insufficient attention had been paid in the lower courts to the scope of the duty of care owed by the defendant to its employee. Their Honours said (at [25]): Issues about the content of the duty of care were not examined in any detail in the courts below. It was assumed that the relevant duty of care was sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kinds of steps required of an employer. Rather, attention was directed only to questions of breach of duty framed without any limitations that might flow from an examination of the content of the duty of care. As earlier indicated, the question of reasonable foreseeability is determinative.

Their Honours considered that the scope of the duty of care owed to the plaintiff did not extend to the matters complained of by the plaintiff. This was because it was not reasonably foreseeable that carrying out the tasks she had agreed to under the contract of employment could cause the plaintiff to suffer a psychiatric illness. As their Honours said (at [40]): For present purposes, it is sufficient to notice that her agreement to undertake the tasks stipulated (hesitant as that agreement was) runs contrary to the contention that the employer ought reasonably to have appreciated that the performance of those tasks posed risks to the appellant’s psychiatric health.

10.74 In Koehler, the High Court also considered that extending the scope of the defendant’s duty of care, to encompass the prevention of psychiatric injury, would be in conflict with the need to preserve the coherency of the law. Given that the plaintiff had voluntarily entered into the contract of employment with the defendant, their Honours held that to find that a duty of care was owed would contravene the contractual principle that, subject to statutory restraints, employers and employees should be free to stipulate the amount of work which an employee agrees to perform under a contract of employment: at [31]. 10.75 When a claim for pure psychiatric injury arises from an employment relationship, the court may consider whether the imposition of a duty of care imposes upon the defendant’s legitimate business interests. In Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100, an employee of the respondent was crushed to death by a forklift due to the negligence of the driver of the forklift. The deceased employee’s three children were later told of the incident and subsequently they and their mother claimed to have suffered psychiatric injury caused by hearing of the accident. Gummow and Kirby JJ were the only members of the court to refer to the business interests of the respondent, stating (at [90]): … there is no inconsistency between the existence of a duty of care to the appellants and the legitimate pursuit by the respondent of its business interests [cf Bryan v Maloney (1995) 182 CLR 609 at 623–4; 128 ALR 163 at 169–70; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR

606 at [147]]. The respondent’s duty of care to the appellants to exercise reasonable care to avoid causing them psychiatric injury as a consequence of their father’s death in the course of his employment would be, at most, co-extensive with the tortious and express or implied contractual duties that it owed Mr Gifford directly as his employer. The law requires an employer in the position of the respondent so to order its affairs as to avoid causing injury or death to its employees.

[page 219] 10.76 The High Court took a similar approach in New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406, where Crennan J, for example, stated (at [249]–[250]): The criterion of reasonableness sets boundaries in respect of liability for psychiatric injury, and anchors the boundaries in principle, rather than allowing them to depend on arbitrary and indefensible distinctions. A claim in respect of a psychiatric injury which is reasonably foreseeable is limited only by reference to general considerations: the compatibility of a duty of care with any conflicting professional responsibilities, whether imposed by statute or contract, and considerations of legal coherence.

See the judgment of Gummow and Heydon JJ at [54]. See also Sneddon v Speaker of the Legislative Assembly [2011] NSWSC 508 (plaintiff claimed damages for psychiatric injury caused by employer’s breach of the nondelegable duty of care by failing to intervene when plaintiff was bullied, harassed and victimised at work).

6

Pure Economic Loss

10.77 At common law, there is no doubt that a duty of care will be owed in the majority of negligence actions causing physical injury to a person or their property. Similarly, any economic loss suffered as a consequence of that injury will be compensable as ‘consequential’ economic loss (for example, hospital expenses and loss of wages). It is much more difficult to establish that

a duty is owed in regard to a loss which is solely economic, and not consequential upon physical damage. This latter kind of harm or damage is called ‘pure economic loss’ and it is only in special circumstances that a common law duty of care will be recognised for this kind of loss. The refusal of the common law to recognise that a duty of care could be owed (known as an ‘exclusionary rule’) is based upon policy considerations, including the fear of indeterminate liability and of unascertainable classes of plaintiffs: Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227. 10.78 The classic case used to illustrate the distinction between consequential and pure economic loss is Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27. In this case, the defendant’s employees damaged an electricity cable while digging up a road with a power-driven excavating shovel. Metal in the plaintiff’s furnace at the time was damaged as a result of the interruption to the electricity and had to be removed from the furnace to avoid damage to the lining of the furnace. The plaintiffs claimed the cost of the damaged metal removed from the furnace, the loss of the profit from that metal and the loss of profits on the further melts that could not be carried out while there was no electricity. The English Court of Appeal held that the defendant was liable for the physical damage to the metal, and for the loss of profit on its sale because that loss was consequential upon the physical damage to the metal itself. In regard to the loss resulting from the inability to conduct further melts, the court held that this loss was not consequential upon physical damage to the plaintiff’s property but resulted from damage to the electricity cable, the property of a third party. This loss was therefore pure economic loss and no duty of care was owed in regard to this kind of loss. [page 220]

10.79 Claims in negligence for pure economic loss may be categorised as follows: Negligent misrepresentation The first exception to the common law rule that no duty of care exists in regard to pure economic loss was recognised by the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 645. In this case, their Lordships were prepared to recognise a limited exception to the common law exclusionary rule, and to recognise that a duty could be owed in regard to negligent misrepresentations causing pure economic loss.8 In Australia, a duty of care in regard to negligent misrepresentations causing pure economic loss was recognised in Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3. As misrepresentation has a significant amount of case law and includes the tortious action of deceit and has links with the Australian Consumer Law. This topic is examined in Chapter 19. Relational loss In Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529; 11 ALR 227, the High Court recognised a new kind of recoverable pure economic loss: relational economic loss. A person suffers relational economic loss when their pure economic loss is caused by damage to the property of a third party: see 10.81ff. Negligent provision of services The law recognises that a professional owes a duty of care to clients to carry out the terms of their retainer: see 9.102. However, in limited circumstances, a third party to that relationship may recover for the pure economic loss suffered as a result of negligent services by a professional: see 10.97ff. Defective structures In Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163, the High Court classified the loss arising from structural defects to a subsequent purchaser of a residence as pure economic loss: see 10.107. However, like other duty categories, the pure economic loss duty category

continues to evolve and the High Court may recognise additional common law duties being owed in the future. See Marsh v Baxter (2015) 49 WAR 1 at [295]–[300] for an overview of the development of the categories of pure economic loss. 10.80 The scope of the duty in cases of pure economic loss is more limited than duties owed for physical damage. In Marsh v Baxter (2015) 49 WAR 1 at [308], it was explained: There are at least two policy reasons for that difference. They are first, the spectre of indeterminate liability, whether in terms of time, amount or the class of potential plaintiffs. Second, the infliction of pure economic loss in some circumstances is an accepted and acceptable part of a competitive economy. Legitimate pursuit of market share is frequently at the expense of a competitor. However these two factors alone do not adequately explain the outcome in all cases.

Relational Loss 10.81 In 1976, the Australian High Court recognised that a person who causes pure economic loss to another may owe a duty of care to that other person if the pure economic [page 221] loss is causally related to physical damage to the property of a third party: Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at 591; 11 ALR 227 at 273–4 (Caltex). Mason J stated: Now that the recovery of economic damage not consequential upon property damage is recognized in the case of negligent mis-statements, there is no sound reason for accepting the traditional rule that only financial loss which is consequential upon property damage can be recovered. The traditional rule is not only at odds with Hedley Byrne, it is based on an absolute distinction between property damage and economic damage which is difficult to justify (see Hedley Byrne [1964] AC at 517 and 538). The problem is to yield compensation to the individual who suffers financial loss not necessarily

consequential upon damage to his property when that loss is closely connected with the failure to take care and yet at the same time to deny compensation “in an indeterminate amount … to an indeterminate class” (Ultramares Corporation v Touche (1931) 174 NE 441 at 444), in particular, to a large class of persons whose loss arises because their use of a public utility or facility has been interrupted.

Caltex 10.82 In Caltex, the defendant was dredging a channel in Botany Bay in Sydney when it negligently ruptured a pipeline at the bottom of the bay. The pipeline was owned by Australian Oil Refining Pty Ltd (AOR) and was used to carry oil between their refinery on one side of Botany Bay and the Caltex terminal on the other side. Since the pipeline was owned by AOR, the only property damage Caltex suffered was the small amount of oil lost when the pipeline was ruptured. The value of the lost oil was insignificant compared to the financial loss suffered by the plaintiff in having to use trucks to transport the oil around the bay while the pipeline was being repaired. It was the pure economic loss of the substitute transport costs which formed the main issue in Caltex. 10.83 The High Court unanimously held that the plaintiff was owed a duty of care and entitled to recover damages for its alternate transportation costs. However, no one approach to when a duty of care is owed for relational loss emerges from their Honours’ judgments: Gibbs and Mason JJ required the defendant to have been in a position to foresee that Caltex, or a specifically foreseen and limited class of persons, would suffer pure economic loss as a result of the defendant’s negligent navigation: at CLR 555; ALR 245 per Gibbs J and at CLR 593; ALR 274 per Mason J. Jacobs J considered that the question of whether the loss was physical or economic irrelevant, and allowed recovery because the effect on the property of Caltex was a foreseeable result: at CLR 604; ALR 284–5. Stephen J propounded a proximity test, requiring an especially close

relationship between the tortious act and pure economic loss: at CLR 574–8; ALR 260–3. Murphy J held that there were no policy reasons why recovery of the loss should not be allowed: at CLR 606; ALR 286. Critical to all of the judgments in Caltex, was: the pure economic loss was reasonably foreseeable; and [page 222] the defendant knew of the plaintiff, specifically Caltex, as the sole member of an ascertained class. 10.84 In these circumstances, there was no possibility of indeterminate liability and the main policy consideration against recognising a duty in regard to pure economic loss was not applicable: compare Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524; Christopher v MV ‘Fiji Gas’ (1983) Aust Torts Reports ¶81-202. 10.85 Caltex has rarely been successfully applied to find a duty of care. For example, in Christopher v MV ‘Fiji Gas’, the court held that the plaintiffs were not known by the defendant as individuals, only as members of an unascertained class. See also Ball v Consolidated Rutile Ltd where the same issue prevented a duty of care arising. However, the decision was confirmed by the High Court in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606. McHugh J, for example, stated (at [113]): The reasoning in Caltex has been rejected by the Supreme Court of Canada … But I think that the decision was plainly right. The risk of loss to Caltex was reasonably foreseeable; no question of indeterminate liability arose; the defendant’s freedom of action was not impaired by imposing a duty because it already owed a duty to the owner of the pipelines; Caltex could not readily avoid the risk of incurring the relevant expenses; and the defendant “must be taken to have known that carelessness in those operations, causing injury to the pipelines, would affect Caltex

in precisely the way it did” (Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529 at 578; 11 ALR 227 at 263 per Stephen J). The only criticism that I have of the reasoning in Caltex is that it imposed too narrow a test for determining to whom a duty was owed.

10.86 This particular area of novel duty commonly has as one of its main concerns, the issue of indeterminacy in terms of whether there is an ascertainable class as well as whether the defendant’s potential liability is out of proportion to the negligent act of omission: Caltex at CLR 551–2; ALR 241–2. Since the decision of Caltex, the development of the approach to novel duties of care has led to a consideration of the defendant’s control, the vulnerability of the plaintiff and due to the type of activity usually involved in these claims, whether a duty would conflict with the pursuit of a legitimate business interest. Caltex was applied in Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R 429, with the Queensland Court of Appeal holding that the decision of Caltex needed to be supplemented (at [6]): Caltex and Perre suggest that the determination of whether a defendant owes a claimant a duty of care not to cause mere economic loss will depend on a combination of factors including the reasonable foresight of the likelihood of harm; the defendant’s knowledge or means of knowledge of an ascertainable, determinate class of persons who are at risk of foreseeable harm; the claimant’s vulnerability or whether they are unable to protect themselves from the foreseeable harm; whether the implication of a duty would impair the defendant’s legitimate pursuit of autonomous commercial interests including the existence of any contracts between the claimant and defendant; whether the damage flowed from the occurrence of activities within the defendant’s control; the closeness of the relationship between the parties and the existence of any other special circumstances justifying compensation [footnotes omitted].

[page 223]

Ascertainable class 10.87 If the negligence primarily affects the plaintiff, they may be described as a ‘first line’ victim; however, due to the natural ‘ripple effect of

economic loss on the first line victims’, the issue of indeterminate liability is a very real one: Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [112] per McHugh J. Therefore it is possible that the class of persons affected by the negligence may extend beyond the more readily identifiable first line victims. Caltex was applied in Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R 429, but supplemented by reference to the decision of Perre v Apand Pty Ltd. 10.88 In Fortuna Seafoods Pty Ltd, the appellant’s negligence caused a ship, the Melina T, to sink. The Melina T was part of a fleet owned by Fortuna Fishing Pty Ltd and the respondent, Fortuna Seafood Pty Ltd, processed and sold its fish. The two companies were part of a vertically integrated commercial operation with common directors and shareholders. The trial judge had found that a duty of care was owed as the appellant had the means of knowledge that the respondent was a member of an ascertainable determinate class of persons likely to suffer economic loss if the appellant was negligent. On appeal, the appellant argued that the judge had erred in drawing that inference. A majority of the Queensland Court of Appeal held that a duty of care was owed. It was held that knowledge of the injured party was satisfied if the appellant knew, or had the means of knowing, that the respondent was a member of an ascertainable class of vulnerable persons unable to protect their interests. McMurdo P stated (at [15]): … I would not find the existence of a duty of care here unless satisfied that Eternal Wind’s master or its owner, Ganta, through Ganta’s officers, had the means of knowledge that Fortuna Seafoods was a member of a determinate ascertainable class of persons or entities who were at risk of foreseeable economic harm if Eternal Wind acted negligently in colliding with and sinking Melina T.

10.89 As the evidence was that vertically integrated commercial operations such as those between the respondent and the owner of the ship were common in the fishing industry, ‘it could reasonably be inferred from this

evidence that such information was within the means of knowledge of the master or owner of Eternal Wind’’: at [17]. Further, due to the vertically integrated commercial operation, the size of the class of potential plaintiffs was restricted so as to not give rise to concerns of indeterminate liability: at [17]. As explained by McMurdo P (at [24]): Fortuna Seafoods’ loss flowed directly from activities within the control of the master of Eternal Wind: the negligent operation of Eternal Wind resulting in the sinking of Melina T meant that Fortuna Seafoods could not process its sister company’s catch and suffered economic loss. Fortuna Seafoods was within the class of those whom McHugh J in Perre called first line victims.

10.90 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports ¶81-692, the Victorian Supreme Court held that there was no duty of care owed in respect of the pure economic loss suffered due to the interruption of the gas supply due to the defendant’s negligence. The defendant sold gas to the main supplier of natural gas in [page 224] Victoria. Due to damage at one of the defendant’s processing plants, the supply of gas to domestic and most business users was interrupted for approximately 12 days. The loss was summarised as: The diminution in supply and, ultimately, the cessation of the supply of gas, caused considerable inconvenience to the consumers of gas in this State and also caused loss and damage to a substantial number. Business users were deprived of the supply of gas, which meant that plants and equipment had to be shut down with the result that materials were damaged or destroyed or had to be disposed of, and plant and equipment was damaged. In addition, businesses suffered losses, including lost profits, and incurred expenses. Domestic users suffered the inconvenience of not having hot water for bathing and washing. They could not use gas fired cooking appliances. Some domestic users purchased electrical equipment such as kettles, urns, cookers and microwave ovens to overcome the lack of gas. Some had to dispose of food, which deteriorated to the point of being unfit for human

consumption. Some experienced damage to gas hot water heaters when the supply was reconnected. Some of the stood-down workers suffered loss of income and also suffered the inconvenience of taking part of their annual leave entitlements at short notice: at [36]–[39].

The issue before the court was ‘Did Esso owe a duty of care to the plaintiffs and the various group members who were gas customers and to the stooddown workers who were employed by gas customers not to interrupt the supply of natural gas, to avoid causing them purely economic loss?’: at [793]. It was held that the economic loss suffered by plaintiffs, the gas customers and the stood-down workers, was reasonably foreseeable: at [839]. Applying the ‘neighbour’ test from Donoghue v Stevenson [1932] AC 562, it was held that the defendant ought to have had within its contemplation as being closely and directly affected by it acts or omissions, not only the gas customers, but also workers who were stood down due to closure of businesses: at [845] and [850]. As to whether there was an ascertainable class of plaintiffs, the business and domestic gas customers were considered to be ‘first line’ victims. However, the stood-down workers, the ‘second line’ victims of the negligence, were members of an unascertainable class: at [938]. Further, as claims would have to be proven, loss not being dependent upon the state of the claimant’s mind, the floodgates factor was not a reason to deny a duty of care to the gas customers: at [954].

Control and vulnerability 10.91 The defendant’s control of the situation that gives rise to the negligence obviously is relevant to the plaintiff’s vulnerability. Vulnerability was highlighted as relevant in imposing a duty of care for pure economic loss in Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [118], McHugh J stating: If the plaintiff has taken, or could have taken, steps to protect itself from the defendant’s conduct and was not induced by the defendant’s conduct from taking such steps, there is no reason why the law should step in and impose a duty on the defendant to protect the plaintiff from the risk of pure economic loss.

[page 225] In that case it was noted that a defendant who knows the plaintiff as an individual and that they are reliant upon them, gives rise to vulnerability: at [10]. See also Barclay v Penberthy (2012) 90 ALJR 610; 291 ALR 608 at [174]. 10.92 In Marsh v Baxter (2015) 49 WAR 1, the appellants were certified organic farmers and the respondent carried on a farming business that included growing cereal crops and canola. The appellants lost their certification for growing organic produce after genetically modified canola was blown onto their property during the respondent’s harvesting process. As there was no physical damage to the appellant’s crop, the loss was the loss of certification, the claim was for pure economic loss. A majority of the court held that there was no duty of care owed. In relation to the vulnerability of the appellant, the majority held that the appellants could not be described as vulnerable. The assessment of the appellants’ vulnerability had to take into account their obligations under the contract with the organisation that certified their farm as organic. The majority noted (at [684]): It is not obvious that the appellants would remain at risk of withdrawal of certification … if they undertook preventative measures, such as the planting of trees for natural screening and the erection of physical barriers; the carrying out of visual inspections for, and removal of, any GM plant material, such as swathes, where there was a risk of high winds in the two to three weeks that swathes were left in windrows; or in undertaking to [National Association of Sustainable Agriculture (Australia) Ltd] to carry out inspections for, and removal of, any volunteer GM plants that might subsequently emerge.

Unlike the situation in Perre, the appellants were aware of the respondent’s genetically modified canola and therefore could appreciate the risk to which they were exposed: at [691]. 10.93 As a plaintiff’s claim based upon relational loss will arise in the commercial context, are they vulnerable if they could have taken out insurance to protect against the loss? In Perre, McHugh J held, ‘Whether the plaintiff has purchased, or is able to purchase, insurance is, however,

generally not relevant to the issue of vulnerability’: at [130]. This was also the view of Stephen J in Caltex (1976) 136 CLR 529 at 580–1; 11 ALR 227 at 265. See also Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R 429 at [23]. However, see Gillard J’s view in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports ¶81-692 at [1347], where after reviewing the possible avenues open to the plaintiffs to protect against loss arising from an interruption to the gas supply, his Honour held that the availability of insurance was something that the plaintiffs could have taken advantage of to protect against loss. In Barclay v Penberthy (2012) 291 ALR 608, the majority did not think that merely because the plaintiff was a commercial entity led to the conclusion that it could have negotiated protection against loss through its contract and was therefore not vulnerable: at [47] and [177].

Interference with ordinary commercial behaviour 10.94 Regard must be had to whether a duty imposed for the relational loss would impede the defendant’s right to pursue its business interests: Perre v Apand (1999) 198 CLR 180; 164 ALR 606 at [115]; Caltex (1976) 136 CLR 529 at 578; 11 ALR 227 at 263. In Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403 at [366], Pritchard J stated: [page 226] … if a person is legitimately protecting or pursuing his or her social or business interests, the common law will not require that person to be concerned with the effect of their conduct on the economic interests of others, even when the person knows that their actions will cause loss to a specific individual …

10.95 In Fortuna Seafoods Pty Ltd v The Ship ‘Eternal Wind’ [2008] 1 Qd R 429, it was examined ‘whether the implication of a duty would impair the defendant’s legitimate pursuit of autonomous commercial interests including

the existence of any contracts between the claimant and defendant’: at [6] (footnotes omitted). McMurdo P held that there was no conflict: The imposition of a duty of care on Eternal Wind not to negligently cause economic loss to Fortuna Seafoods by colliding with and sinking the Melina T does not impair the appellant’s pursuit of its autonomous commercial interests. The group to which Fortuna Seafoods belongs is a relatively small and determinate class of fish processors and marketers closely affiliated through integrated company structures with owners of fishing vessels. There was no contractual relationship between the appellant and Fortuna Seafoods: at [22].

10.96 In Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2003) Aust Torts Reports ¶81-692, it was held that the imposition of a duty would not create any inconsistency with the defendant’s legitimate pursuit of its economic interests. The defendant sold its gas to the gas retailer with the intention it would be on-sold to the consumer. Therefore, imposing a duty of care would ‘not in any way cut across its legitimate business activities or impede them’: at [964].

Negligent Provision of Services 10.97 It is an established duty of care that professionals must exercise reasonable care in performing the terms of their retainer when acting for a client: see 9.106. But what if a party who is not a client is reliant upon the professional and suffers pure economic loss as a result? In Bryan v Maloney (1995) 182 CLR 609 at 619; 128 ALR 163 at 166, Mason CJ, Deane and Gaudron JJ observed: … commonly, but not necessarily, [a duty will arise in cases which] will involve an identified element of known reliance (or dependence) or the assumption of responsibility or a combination of the two.

10.98 If the alleged negligence relates to the giving of advice or information, an action in negligent misrepresentation may arise: see Chapter 19. However, if the plaintiff relies upon the professional to do their work for their client competently and suffers the loss, the law may recognise a duty of

care in limited circumstances: Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159; 142 ALR 687 (Hill v Van Erp). 10.99 Traditionally, the common law courts have been reluctant to recognise extending the scope of a solicitor’s duty to include third parties to the solicitor–client relationship. The reason for such reluctance is the concern that there could be a conflict between the interests of the client and those of the third party: Hill v Van Erp (1997) 188 CLR 159; 142 ALR 687; Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69; Ross v Caunters [1980] Ch 297; [1979] 3 All ER 580. Nevertheless, it has been recognised that a solicitor may owe a duty of care to a third party if the interests of the client and the third party coincide (Hill v Van Erp; [page 227] Badenach v Calvert (2016) 90 ALJR 610; 331 ALR 48) and recognition of the duty creates no incoherency in law: Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404. 10.100 In Hill v Van Erp, the plaintiff had been named as a beneficiary in the will of her friend and neighbour, the late Mrs Currey. The defendant solicitor had drawn up and supervised the execution of Mrs Currey’s will. The will was executed at the client’s home and, at the request of the defendant, was witnessed by the plaintiff’s husband. This meant that, pursuant to s 15(1) of the Succession Act 1981 (Qld), the gift to the plaintiff was invalid and the bequest, valued at $163,471.50, went to the residual legatee, the deceased’s son. The High Court, in a 5:1 decision, found in the plaintiff’s favour, despite the general rule that professionals only owe a duty to their clients and not to third parties, even if the third party purports to rely on the professional’s skills and judgment.

10.101 As to the scope of the duty, in Vagg v McPhee (2013) 85 NSWLR 154 at [52], Tobias JA noted that the High Court did not ‘fully answer the question of how far the duty extends in relation to instructions given regarding the assets of an estate’.

Control and vulnerability 10.102 If a professional is providing a service, it may be that they are in a position of control, but that does not necessarily equate with an assumption of responsibility: Hill v Van Erp at CLR 198; ALR 716. In Hill v Van Erp, it was held that the solicitor was in a position of control as to ‘whether Mrs Van Erp would acquire the right to have Mrs Currey’s estate properly administered in accordance with the terms of her will’: at CLR 199; ALR 717. 10.103 Any vulnerability on the part of the plaintiff must be assessed as at the time of the alleged breach. Consideration may be given to the question of whether the plaintiff would suffer loss if the professional was negligent in the provision of their service, but also what practical precautions were available to the plaintiff and if they had the capacity to adopt any of those precautions: Hill v Van Erp at CLR 186; ALR 707 per Dawson J; at CLR 216; ALR 727 per McHugh J. In Hill v Van Erp, it was observed that in respect of the execution of a will, it was usually the solicitor and client who had access to the will and the client was not expected to review the will for any defects. Further, any mistake in the execution of the will could only be discovered after the client’s death and therefore ‘[i]n this respect the intended beneficiary is particularly vulnerable’: at CLR 186; ALR 707.

Coherency 10.104

In Hill v Van Erp, Brennan CJ stated (at CLR 167; ALR 691–2):

… generally a solicitor’s duty is owed solely to the client subject to the rules and standards of the profession (see White v Jones [1995] 2 AC 207 at 223). … But the interests of a client who retains

a solicitor to carry out the client’s testamentary instructions and the interests of an intended beneficiary are coincident. Most testators seek the assistance of a solicitor to make their intentions effective. The very purpose of a testator’s retaining of a solicitor is to ensure that the testator’s instructions to make a testamentary gift to a beneficiary result in the beneficiary’s taking that gift on the death of the testator.

[page 228] 10.105 If the plaintiff’s interests do not coincide with those of the solicitor’s client, this goes against a duty of care being owed, as would if the solicitor was obliged to act exclusively in the client’s interests: Hill v Van Erp at CLR 196–7; ALR 715; Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403; Tobin v Dodd [2004] WASCA 288; Talbot and Olivier (a firm) v Witcombe (2006) 32 WAR 179; Thompson v Canik (1998) 145 FLR 438. See David v David [2009] NSWCA 8, where it was alleged that the solicitor owed a duty to the appellants as persons who may enter into contracts with his client. The solicitor never gave advice to the appellants who signed contracts prepared by him for his client. The court held that no duty of care was owed to the appellants, stating (at [92]): In the circumstances here, there was plainly no duty owed to persons not clients of the solicitor to undertake steps that would have been contrary to the interests of the solicitor’s client. It is unnecessary to discuss the circumstances in which a solicitor may come under a duty of care in the effecting of his or her retainer to his or her client to take into account the interests of third parties. However, save for circumstances of assumption of duty (and leaving to one side knowledge of fraud), it would be an extraordinary development of the law to impose upon the solicitor a duty to take some step or give some advice to a third party that was inconsistent with the interests of his primary client.

In Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93 at [31], Pincus JA of the Queensland Court of Appeal was of the opinion that: If a mistake in arranging for the execution of a Will as in Hill v Van Erp and in Somerville v Walsh, NSW Court of Appeal CA 40321 of 1997, 26 February 1998, suffices to create a duty of

care, then I can see no reason why it should be held that a disappointed beneficiary, whose hope of benefit is evident to the solicitor engaged, should not have a right to sue if that hope fails of realisation because of the solicitor’s culpable delay in preparing a Will.

In that case the plaintiff alleged that the solicitor had delayed in executing a new will of their client causing it to lose the intended bequest of their client’s art collection. The claim failed as the evidence did not establish that the client had made up her mind about the bequest. See also Badenach v Calvert (2016) 90 ALJR 610; 331 ALR 48, where the High Court held that a solicitor did not owe a duty of care to a beneficiary of a client testator to advise the client testator of their available options to avoid their estate being subject to a claim under the Testators Family Maintenance Act 1912 (Tas). The court held that the interests of the testator and beneficiary were not co-extensive and that the scope of the duty owed by the solicitor to the beneficiary was narrower. French CJ, Kiefel and Keane JJ stated (at [47]): The interests of the client and the respondent as parties to the proposed inter vivos transactions are not the same as those of a testator and intended beneficiary with respect to the execution of final testamentary intentions. The advices and warnings which the solicitor would need to give about such transactions would reflect that their interests are not coincident. … This is not a circumstance which could arise where a solicitor was merely carrying into effect a testator’s intentions as stated in his or her final will.

Indeterminacy 10.106 In Hill v Van Erp, indeterminate liability was held not to be an issue as the terms of the will constrained the liability. In Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403, it was alleged that the solicitor’s negligent advice to [page 229] his client had caused the plaintiff to suffer economic loss. The court held (at

[445]) that to impose a duty of care in the circumstances would expose the solicitor to indeterminate liability: … solicitors traditionally provide advice on almost all aspects of commercial and corporate liability, much of which, when acted upon, will affect a wide range of persons including employees, investors and creditors.

See also Carey v Freehills (2013) 303 ALR 445, where the court noted that the law is resistant to extend a solicitor’s duty beyond the corporate client to the shareholders or other related entities. However, the court also pointed out that it is not impossible, if a duty may be established by a consideration of the salient features of novel duties: at [323].

Defective Buildings 10.107 A duty of care is owed by a builder to the client in the construction of a house. Houses get sold and subsequent purchasers are not in any contractual relationship with the builder. If the building is defective due to the builder’s negligence and the damage arises when the house is in the possession of a subsequent purchaser, the law may impose a duty of care upon the builder. The loss suffered by the subsequent purchaser has been classified by the High Court as pure economic loss: Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 505; 60 ALR 1 at 61 per Deane J; Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163. The reasoning for this classification is that when the defects manifest after the subsequent purchase of the property, the purchaser has paid more than what the property was worth and in some cases the rectification costs will arise in the future.

Bryan v Maloney 10.108 In Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163, the appellant was a professional builder who built a house for Mrs Manion. The house was later sold to another party who then sold it to the respondent. Six months after the respondent purchased the house, cracks appeared in the walls. The cause of the cracks was the inadequate footings in the building.

Despite the fact that there was no contract between the appellant builder and the respondent, the appellant was found liable for the diminution in the value of the property. In coming to its decision, the High Court was concerned with the control of the builder, the vulnerability of the subsequent purchaser and the coherency of the law and the relationships between the parties. 10.109 Bryan v Maloney involved the subsequent purchase of a domestic building. The High Court approved its decision of Bryan v Maloney in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522, but held that no duty of care was owed to the subsequent purchaser of defective commercial premises.

Control and vulnerability 10.110 One of the critical factors in the High Court finding in the respondent’s favour in Bryan v Maloney was the respondent’s inability to protect her own interests and the appellant’s possession of specialist knowledge and skills, which meant that, as the builder, [page 230] he was in overall control of the house construction. Mason CJ and Deane and Gaudron JJ commented that policy considerations supported the finding of a duty owed by the builder to the plaintiff because: … by virtue of superior knowledge, skill and experience in the construction of houses, it is likely that a builder will be better qualified and positioned to avoid, evaluate and guard against the financial risk posed by latent defect in the structure of a house: at CLR 627; ALR 171.

10.111 In contrast, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522, the High Court found in favour of the defendant because the plaintiff had the ability and resources to protect its own commercial interests and was not, therefore, vulnerable.9 In Woolcock

Street Investments, the plaintiff had purchased a commercial property which subsequently developed structural defects due to either the defendant’s negligent design of the footings or its negligent supervision over their construction. The High Court held by a 6:1 majority that no duty of care was owed to the defendants. Gleeson CJ, Gummow, Hayne and Heydon JJ considered that: … the appellant was [not], in any relevant sense, vulnerable to the economic consequences of any negligence of the respondents in their design of the foundations for the building … It may be accepted that the appellant bought the building not knowing that the foundations were inadequate. It is not alleged or agreed, however, that the defects of which complaint now is made could not have been discovered: at [31]–[32].

Their Honours also considered that vulnerability, in the context of pure economic loss cases, is not to be understood as meaning that the plaintiff was likely to suffer damage if reasonable care was not taken by the defendant. Instead, their Honours considered that vulnerability: … is to be understood as a reference to the plaintiff’s inability to protect itself from the consequences of a defendant’s want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant: at [23].

McHugh J, also in the majority, somewhat more expansively, considered that vulnerability means: … that by reason of ignorance or social, political or economic constraints, the plaintiff was not able to protect him or herself from the risk of injury: at [80].

10.112 Kirby J, however, was critical of the restricted approach to vulnerability adopted by the other members of the court. In his Honour’s opinion, the concept of vulnerability is more complex and should be determined by all the circumstances of the individual case under consideration. Moreover, his Honour considered that no assumption should be made that those involved in a commercial enterprise are able to protect their own economic interests. In particular, his Honour referred to the case of Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 and said (at [168]) that vulnerability could extend to plaintiffs such as those in that case, who:

… might be carrying on a profitable economic enterprise but who are exposed to an insidious risk by the acts of others about which they were unaware and against which they could not reasonably protect themselves.

[page 231] His Honour went on to say (at [169]): I accept that the capacity of an entity to protect itself and its interests is an important factor in determining vulnerability. However, it is not the only one. In a commercial context there may be many more to be considered — assumption of risk, known reliance and commercial pressures, to name but a few. With the benefit of hindsight it is easy to suggest that an entity should have protected itself. However, courts should be reluctant to assume that a commercial entity lacked vulnerability simply because of its commercial character.

In the present case, he considered the plaintiff was vulnerable because: … it had no reasonable intermediate opportunity of discovering, and protecting itself against, the latent defect of which it now complains. That defect was under the ground and beneath the building. According to the pleadings, it only became known to the appellant when the ‘distress’, which the defect caused to the building, first began to manifest itself in outward signs: at [173].

Kirby J was in dissent in holding that the plaintiff’s case should not be dismissed until a court had had an opportunity to consider all the facts relating to the plaintiff’s vulnerability and not just those agreed upon for the purposes of the appeal: at [178]. See also Barclay v Penberthy (2012) 291 ALR 608, where the court referred to Woolcock Street Investments Pty Ltd v CDG Pty Ltd in its discussion of vulnerability, and Chan v Acres [2015] NSWSC 1885. 10.113 In Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102, both of these High Court cases were discussed as the court was required to review the law in order to determine whether a party could be joined to the proceedings. In that case, the appellant contracted with BLL to build an abattoir and associated facilities in Toowoomba. BLL engaged the respondent and Harwal (third respondent) as subcontractors. The respondent supplied the electrical design, inspection and certification services

and Harwal designed and constructed the abattoir’s switchboards. The parent company purchased all of the shares in the appellant four years later and then the appellant granted its parent company a licence to operate the abattoir, but maintained ownership of the plant and equipment. A fire in the main switchboard caused the abattoir facility to be shut down for five weeks and the appellant alleged that the respondents were negligent. It became apparent that it was the parent company that had suffered some of the losses claimed in the negligence proceedings, not the appellant. The trial judge held that the principles in Bryan v Maloney did not extend to commercial premises. The Queensland Court of Appeal noted the differences between the facts of the case before it and the High Court decisions — ‘the land and improvements continued throughout in the ownership of [the appellant], the original contracting party’: at [16]. Further, it was not a structural or design defect in a building: the alleged negligence was a failure in the switchboard which caused a fire which then caused the abattoir to cease operation for five weeks, incurring trading losses. The respondent argued that the appellant was not vulnerable as the parent company could have obtained a warranty or an assignment of rights from the appellant and further, that the appellant’s own expert report demonstrated that an examination of the electrical drawings and switchboard before the parent company started to use the [page 232] abattoir facilities would have revealed the alleged defects. The court disagreed, stating (at [19]): … what is reasonable for parties at arms length in a transaction of sale and purchase may not be reasonable or even appropriate for dealings between companies in the same group engaged in quite a different transaction.

Therefore, despite being a company and having the avenue of seeking a

warranty or assignment of rights available to it, as identified in Woolcock Street Investments Pty Ltd v CDG Pty Ltd, the Court of Appeal held that the appellant was not necessarily not vulnerable. 10.114 Vulnerability was also an issue in Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408. The appellant contracted with a property developer to construct strata-titled serviced apartments. Under the strata title legislation, upon registration of the plan, a body corporate comes into existence, the respondent in this case. The respondent alleged that the construction had been negligent and there were defects in the common property. In considering whether the respondent was vulnerable, Hayne and Kiefel JJ stated (at [56]–[57]): It may be assumed, without deciding, that the developer and the purchaser of a lot from the developer relied on the builder to do its work properly. The purchaser of a lot could not check the quality of the builder’s work as it was being done. Perhaps the developer was in no different position. (That would turn on what meaning is given to the superintendence provisions of the developer’s contract with the builder.) The [respondent] was in no better position to check the quality of the builder’s work as it was being done than the original purchaser of a lot. Because these parties could not check the quality of what the builder was doing, it can easily be said that each relied on the builder to do its work properly. Reliance, in the sense just described, may be a necessary element in demonstrating vulnerability, but it is not a sufficient element. As noted earlier, vulnerability is concerned with a plaintiff’s inability to protect itself from the defendant’s want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant.

The court was unanimous in that the respondent was not vulnerable in the sense it could not protect itself. French CJ held (at [3]): The nature and content of the contractual arrangements, including detailed provisions for dealing with and limiting defects liability, the sophistication of the parties and the relationship of [the property developer] to the [respondent] all militate against the existence of the asserted duty of care to either [the property developer] or the [respondent].

See also Chan v Acres [2015] NSWSC 1885.

Coherency 10.115

In Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216

CLR 515; 205 ALR 522 at [102], McHugh J stated: Law is too complex for it to be a seamless web. But, so far as possible, courts should try to make its principles and policies coherent (Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 at [55]). Accordingly, it is always relevant in determining whether to create, extend

[page 233] or formulate a duty in tort to consider whether it is consistent with other legal doctrines, principles and policies.

The High Court held that there was no disconformity between the obligations owed to the original owner and the subsequent purchaser. Gleeson CJ, Gummow, Hayne and Heydon JJ referred to Voli v Inglewood Shire Council (1963) 110 CLR 74 at 85, in which Windeyer J noted that the contract between the builder and original owner was not irrelevant and stated that the: … contract defines the task which the builder or engineer undertook. There would be evident difficulty in holding that the respondents owed the appellant a duty of care to avoid economic loss to a subsequent owner if performance of that duty would have required the respondents to do more or different work than the contract with the original owner required or permitted: at [28].

See also Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408 at [144], where it was held that to impose a duty to prevent foreseeable economic loss to a property developer from an obligation to make good any latent defects in the building, would affect the contractual allocation of risk as agreed between the parties. To allow the subsequent purchasers of the building to recover loss from the builder, when the builder was not liable to the party for whom they constructed the building and received payment from, ‘would reduce the common law to incoherence’: at [69] citing Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522 at [28].

Relationships

10.116 Although there is no contractual relationship between the builder or engineer and a subsequent purchaser, the High Court in Bryan v Maloney (1995) 182 CLR 609 at 625; 128 ALR 163 at 170–1 pointed out that there was some connection: the house was a permanent structure likely to be used indefinitely and was a significant investment for a purchaser; a builder would be able to foresee that the negligent construction of a house with inadequate footings was likely to cause economic loss when this manifested; and no intervening act of negligence or other event would occur between the construction and the economic loss being suffered. See Fangrove Pty Ltd v Tod Group Holdings Pty Ltd [1999] 2 Qd R 236, decided before Woolcock Street Investments Pty Ltd v CDG Pty Ltd, where the Queensland Court of Appeal held that ‘[t]he purchaser of a substantial commercial building acquired for profit does not fit the description of a purchaser of a modest suburban house who “is likely to be unskilled in building matters and inexperienced in the niceties of real property investment”’: at [36], citing Bryan v Maloney at CLR 627; ALR 171. 10.117 Recognising a duty of care in respect of defective structures does not require a consideration of whether a duty would conflict with a defendant’s right to pursue its legitimate business interests: Woolcock Street Investments Pty Ltd v CDG Pty Ltd at [79]; Bryan v Maloney at CLR 623–4; ALR 169–70. [page 234]

Indeterminacy 10.118 Although indeterminate liability was considered in Bryan v Maloney and Woolcock Street Investments Pty Ltd v CDG Pty Ltd, in neither

case did it negate a duty of care possibly being owed in the circumstances. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd at [77], McHugh J held: Indeterminacy of liability is a factor that will ordinarily defeat a claim that the defendant owed a duty of care to persons such as the plaintiff. But it is not likely to be a significant issue in cases concerned with economic loss suffered by the subsequent purchaser of a commercial building that is or becomes defective by reason of negligent design or construction. Liability will ordinarily be restricted to the owner of the building when damage manifests itself. Indeterminacy of liability may be a relevant factor where occupants of the building claim damages for economic loss arising out of the defective design or construction of the building. But when the first owner or a subsequent purchaser of a commercial building claims damages for pure economic loss, indeterminacy of liability is not an issue.

A defendant would only be liable for the diminution of the value of the property or the cost of rectification to the owner as at the time the damage manifests. See also Brookfield Multiplex Ltd v Owners Corp Strata Plan (2014) 254 CLR 185; 313 ALR 408 at [175]; Project Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102 at [23].

Legislation 10.119 There is legislation in all Australian jurisdictions that imposes liability for defective structures upon the builder for a specified period by implying warranties. For example, in Victoria, Pt 2, Div 1 of the Domestic Building Contracts Act 1995 provides that if there is defective building work and an owner notifies the builder within 10 years of the Certificate of Occupancy or the Certificate of Final Inspection, the builder will be liable. See also Building Act 2004 (ACT) Pt 6; Home Building Act 1989 (NSW) Pt 2C; Queensland and Construction Commission Act 1991 (Qld) s 67AZN, Sch 1B; Building Work Contractors Act 1995 (SA) s 32; Housing Indemnity Act 1992 (Tas) s 8.

7

Liability of Public Authorities

10.120 A public, or statutory, authority is a legal body created by parliament to act on behalf of the executive branch of the government.10 Examples of public authorities usually include city, municipal and local councils, fire, police, health and similar government departments and road, rail and transport authorities. Each of these public authorities has its responsibilities, functions and powers specified and regulated by the Act of parliament which resulted in its creation. Under the Westminster separation of powers doctrine (between the executive, judicial and parliamentary branches of government), negligent policy decisions [page 235] made by public authorities are excluded from judicial review or consideration by the Australian courts: see 10.135. 10.121 The relationship between the plaintiff and the public authority may fall within one of the established duty categories. As noted by McHugh in Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; 167 ALR 1 at [61]: The correct approach in determining whether a statutory authority owes a duty of care is to commence by ascertaining whether the case comes within a factual category where duties of care have or have not been held to arise. Employer and employee, driver and passenger, carrier and consignee are a few examples of the many categories or relationships where, absent statute or contract to the contrary, the courts have held that one person always owes a duty of care to another. Frequently, a statutory authority will owe a duty of care because the facts of the case fall within one of these categories. The authority may, for example, be an employer or occupier of premises or be responsible for the acts of its employees, such as driving on a public street.

10.122 If the relationship is not within one of the established duties, public authorities as defendants give rise to difficulties as the action in negligence will be based upon the authorities’ allegedly negligent exercise of power or a failure to exercise power. Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 457–8; 60 ALR 1 at 26 stated:

… statutory powers are not in general mere powers which the authority has an option to exercise or not according to its unfettered choice. They are powers conferred for the purpose of attaining the statutory objects, sometimes generating a public expectation having regard to the purpose for which they are granted that they will be exercised. There is, accordingly, no reason why a public authority should not be subject to a common law duty of care in appropriate circumstances in relation to performing, or failing to perform, its functions, except in so far as its policy-making and, perhaps, its discretionary decisions are concerned.

10.123 This category of novel duties has been flagged as difficult, as Kirby J observed in Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 at [189]: This field of the law of negligence has been acknowledged to be among the most difficult, both by judges and scholars. An optimistic view is that the difficulty arises because the law is “developing”. A more realistic perspective may be that it is a category which is conceptually unsettled. The fundamental problem is that a single unifying principle for liability in negligence, easy to apply and predictable in outcome, has proved elusive. Differing theories hold the legal stage for a time. But then their defects and inadequacies are exposed. None has won permanent acceptance. The best that observers of this branch of the common law have been able to offer is the cautionary advice to study the cases in the hope of deriving guidance from analogies. However, in order to do this it is necessary to have some concept of the principle by which the analogy is to be discovered. [footnotes omitted]

See also Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports ¶81749 at [19]: A clear and universal test for determining whether a duty of care arises has not been laid down. Each case depends on its own circumstances and the totality of the circumstances must be weighed in the balance.

10.124 In this section, the discussion of whether a public authority owes a common law duty of care will generally be limited to actions involving personal, psychiatric and property [page 236] damage. For a discussion of whether a duty is owed where the harm is pure

economic loss (see 10.81ff) and for loss arising from misrepresentation, see Chapter 19. 10.125 Some legislation exempts public authorities from liability in negligence. For example, s 142(3) of the Nature Conservation Act 1992 (Qld) provides that the State is not liable for any act or omission related to the performance of a function under the Act in relation to a state protected area. ‘State protected area’ is defined to be a national park or a regional park: s 142(7).

Statutory Power 10.126 A duty of care is not owed by a public authority merely because it has the powers that if exercised may prevent the harm suffered by the plaintiff: Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147. Neither will a duty to be owed solely because it is reasonably foreseeable that if the power is not exercised by the public authority that harm may arise: Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432. However, it is a well-established principle that if an authority does exercise its powers, they must be exercised with reasonable care: Caledonian Colleries Ltd v Speirs (1957) 97 CLR 202 at 220; Stuart v Kirkland-Veenstra at [117]; Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 at [75]. 10.127 Before a duty of care can be established, it must be identified as to which category the alleged negligence falls. A plaintiff may suffer loss because a public authority: exercised its power negligently (misfeasance); had the power to act but did not exercise the power (nonfeasance); or had no duty to act (pure nonfeasance). In cases of misfeasance, that is, the public authority has exercised its power; the law requires that reasonable care be taken. It is the latter two situations

that require analysis of the legislation to determine whether or not there was a duty to act. See, for example, Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 (failure to exercise discretion); Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1 (no duty to act). 10.128 Generally, the common law does not impose upon a defendant a duty to act to prevent harm to another, unless it is the defendant’s act which created the risk: Smith v Leurs (1945) 70 CLR 256; [1945] ALR 392; Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147. However, circumstances may arise where an authority may be required to act: (i)

Where an authority, in the exercise of its functions, has created a danger.

(ii) Where the particular circumstances of an authority’s occupation of premises or its ownership or control of a structure attracts to it a duty of care. In these cases the statute facilitates the existence of a duty of care. (iii) Where a public authority acts so that others rely on it to take care for their safety: Amaca Pty Ltd v New South Wales (2004) Aust Torts Reports ¶81-749 at [22], referring to Sutherland Shire Council v Heyman (1985) 157 CLR 424; 60 ALR 1.

10.129 Whether a public authority had a duty to act was considered in Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432. The High Court had to consider [page 237] whether police officers owed a duty of care to a member of the public who committed suicide several hours after the police officers failed to exercise their powers under s 10 of the Mental Health Act 1986 (Vic) to take him into custody for his own wellbeing. The action was brought by the victim’s widow who suffered a psychiatric injury as a result of her husband’s suicide. Two police officers had come across the respondent’s husband in the early hours of the morning as he sat in his car at a public car park writing a letter. There was a corrugated tube taped to the exhaust pipe extending into the car. The

evidence was that the car’s engine was not running and was cold. When questioned, Veenstra told the officers that he had thought about doing something stupid but had changed his mind before they had arrived. The officers offered to phone his wife, family or a doctor or to drive him home. After further inquiries were made, the officers allowed Veenstra to leave. The patrol duty sheet noted that Veenstra had been writing a letter and contemplating suicide, that he had no psychiatric history but included the word ‘depressed’ without elaboration. Later that day Veenstra committed suicide sitting in his car at home. Section 10(1) of the Mental Health Act 1986 (Vic) empowered a member of the police force to apprehend a person who appeared to be mentally ill if the member had reasonable grounds for believing that the person was likely to attempt suicide. The High Court held that a person was not mentally ill because they had contemplated suicide: at [97] per Gummow, Hayne and Heydon JJ. Section 10(1) was interpreted by the court as not imposing an obligation upon police officers to apprehend mentally ill persons. As the conditions necessary for the provision did not arise, no duty of care could be argued based on the failure to exercise the statutory power: at [149] per Crennan and Kiefel JJ. See also Pyrenees Shire Council v Day (1998) 192 CLR 330 at 346; 151 ALR 147 at 156: ‘if a decision not to exercise a statutory power is a rational decision, there can be no duty imposed by the common law to exercise the power’. 10.130 See also Kudrin v City of Mandurah [2012] WASCA 65, where the respondent had a general power to enable it to enforce compliance by owners and builders with the approved plans for the construction or alteration of a building. The appellants alleged that the respondent had failed to exercise this power, contained in s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA), in relation to an encroaching retaining wall on property adjacent to theirs. The court held (at [43]) there was no duty owed by the respondent:

The statutory regime could not, in my opinion, be said to create or facilitate any relationship between the respondent and the appellants which was arguably capable of giving rise to such a duty of care. The power under s 401 … is not a power which is specifically addressed to the protection of neighbouring or nearby landowners from encroachment, or from inconvenience or distressed feelings, as a result of building work, but to the maintenance of appropriate building standards. Nor is it a power which the respondent is under an obligation to exercise in any case where a non-compliant building may lead to some encroachment or cause some inconvenience to nearby landowners. The power is a discretionary one and any such obligation would be inconsistent with the discretionary nature of the power. There was nothing in this case which called for the power to be exercised to protect the appellants from the risks of which they complain.

[page 238]

Relevant Factors 10.131 Whether a public authority owes a novel duty will depend upon the reasonable foreseeability of the harm (Sydney Water Corporation v Turano (2009) 260 ALR 20), a range of factors as identified in Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 and in some jurisdictions, provisions of the civil liability legislation. For example, in Queensland, s 35 of the Civil Liability Act 2003 provides: The following principles apply to a proceeding in deciding whether a public or other authority has a duty or has breached a duty — (a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising the functions; (b) the general allocation of financial or other resources by the authority is not open to challenge; (c) the functions required to be exercised by the authority are to be decided by reference to the broad range of its activities (and not merely by reference to the matter to which the proceeding relates); (d) the authority may rely on evidence of its compliance with its general procedures and any applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceeding relates.

See also Civil Law (Wrongs) Act 2002 (ACT) s 110; Civil Liability Act 2002

(NSW) s 42; Civil Liability Act 2002 (Tas) s 38; Wrongs Act 1958 (Vic) s 83; Civil Liability Act 2002 (WA) s 5W. There are no equivalents in South Australia and the Northern Territory. 10.132 Significantly, the respective sections refer to both the existence and breach of the duty of care, reflecting perhaps the difficulties the courts sometimes face in drawing the dividing line between the nature and scope of the duty of care and the breach of that duty: Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 at [8] per Gleeson CJ. 10.133 In reading this legislation, it should be noted that in some jurisdictions the use of the term ‘function’ is defined to include what is usually referred to as a statutory power at common law: see, for example, s 34 of the Civil Liability Act 2003 (Qld). As well as the obvious exceptions of South Australia and the Northern Territory, only the Western Australian legislation does not contain this alternate meaning of ‘function’. 10.134 It is also important to note, however, that these statutory provisions do not represent a codification of the law relating to the liability of authorities in the tort of negligence. Instead, the statutory provisions will, as relevant, modify the application of the common law principles, rules and policies. See Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 at [388].

Policy and operational decisions 10.135 Strict budgetary restrictions are placed upon statutory authorities, due to the fact that they are directly dependent upon the financial (and indirectly, the electoral) support [page 239]

of the Australian taxpayer and ratepayer. For this reason, statutory authorities often have a discretion as to the ways in which they can carry, or not carry out, their statutory functions and powers. It is for this reason also that the High Court has stressed, on several occasions, that statutory authorities are not insurers for members of the public, so that persons injured by the negligent act or omission of a statutory authority may, nevertheless, be owed no duty of care: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200. 10.136 Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 468–9; 60 ALR 1 at 34–5, explained the distinction between policy and operational decisions: The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognise that a statutory authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus, budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness.

10.137 In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337, the plaintiffs ate contaminated oysters and brought a negligence action against the Great Lakes Council, which had control of the area where the oyster beds were grown, and the state of New South Wales, which had decided to allow the oyster industry to be self-regulating. The High Court held that neither statutory authority owed a duty of care to the consumers of the contaminated oysters.11 In regard to the Council, its control and legislative powers over the area where the contamination most likely originated were insufficient to support a private duty of care being owed by the authority to the plaintiffs. The state of New South Wales was also held to have owed no duty of care to the consumer plaintiffs. This finding was based

upon the fact that, ultimately, it is a matter of governmental choice as to how a particular industry should be regulated. As Gummow and Hayne JJ commented (at [175]–[176]): In particular, the state decided not to adopt the approach of some other Australian and foreign jurisdictions which require regular sanitary surveys of oyster-growing regions pursuant to a classification structure based on water pollution levels. This decision was reached after much consideration and was based in part on budgetary concerns … A decision of that nature involves a fundamental governmental choice as to the nature and extent of regulation of a particular industry.

The decision as to the nature of the regulation of the oyster industry was a policy decision and, therefore, not reviewable by the courts. In contrast, in Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147, the failure of the authority to ensure that the fire defect [page 240] had been repaired was an operational decision and could, therefore, be reviewed by the courts to find that a duty of care was owed and breached. 10.138 The civil liability legislation provides that ‘the general allocation of financial or other resources by the authority is not open to challenge’: Civil Law (Wrongs) Act 2002 (ACT) s 110(b); Civil Liability Act 2002 (NSW) s 42(b); Civil Liability Act 2003 (Qld) s 35(b); Civil Liability Act 2002 (Tas) s 38(b); Civil Liability Act 2002 (WA) s 5W(b). There is no equivalent paragraph in the Victorian legislation. In Roads and Traffic Authority of New South Wales v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 at [397], a case considering the provision from the aspect of breach, it was stated: There is an important difference in prepositions between s 42(a) and s 42(b). Section 42(a) is concerned with the resources reasonably available to the authority, while s 42(b) is concerned with the allocation of those resources by the authority. In other words, s 42(b) starts from the

position that certain resources are reasonably available to the authority, and considers the allocation that is made by the authority of those resources.

See also New South Wales v Ball (2007) 69 NSWLR 463 at [13]–[18], where the plaintiff’s challenge to the allocation of resources was struck from the statement of claim. The plaintiff was a police officer and claimed that as a result of the lack of funding and staff he was required to work by himself for longer hours on child sexual abuse cases causing him to suffer psychiatric injury.

Control and vulnerability 10.139 The most important of the factors usually relevant to finding whether a duty of care is owed by a statutory authority, is its control over the source of the risk of harm and the vulnerability of those who depend upon the authority to manage (or to warn of) their exposure to that risk. As Gummow and Hayne JJ commented in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 196 ALR 337 at [149]–[150]: An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance. For example, in cases of negligent misstatement, such as Tepko Pty Ltd v Water Board [(2001) 206 CLR 1; 178 ALR 634], reasonable reliance by the plaintiff on the defendant authority ordinarily will be a significant factor in ascertaining any relevant duty of care. The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. It assumes particular significance in this appeal. This is because a form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde [(2000) 201 CLR 552; 173 ALR 665], is remote, in a legal and practical sense, does not suffice to found a duty of care. [footnotes omitted]

10.140

The decision of the High Court in Crimmins v Stevedoring Industry

Finance Committee (1999) 200 CLR 1; 167 ALR 1 (Crimmins) illustrates the application of the common law factors of control and vulnerability to cases deciding whether a private, as [page 241] well as a public, duty was owed in the circumstances in which the plaintiff suffered personal injury to their person or property. In Crimmins, the plaintiff contracted mesothelioma from exposure to asbestos while working for various stevedoring companies, loading and unloading ships. The High Court held that the defendant owed the plaintiff a duty of care on the basis that its predecessor authority had had overall control of the activities on the wharves where the plaintiff worked. The fact that the defendant’s predecessor was not the employer of the plaintiff was held to be irrelevant in the circumstances of the case. The critical factor was the plaintiff’s vulnerability when compared with the defendant’s knowledge of the risk and its powers to control or minimise that risk. 10.141 In Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432 at [114], the High Court held that control was of ‘critical significance’. The court stated (at [116]): No doubt it can also be said that they were in a position to control or minimise the occurrence of the observed risk (in this case because they had the power given by s 10 of the Mental Health Act). But considerations of the same kind will almost always be present when a passer-by observes a person in danger. The passer-by can see there is danger; the passer-by can almost always do something that would reduce the risk of harm. Yet there is no general duty to rescue.

The case was different from Crimmins, as the police officers were not in control of the risk, nor did they ‘put Mr Veenstra in harm’s way’: at [116]. See also Pyrenees Shire Council v Day (1998) 192 CLR 330; 151 ALR 147 (the authority had control because of its actual knowledge of the risk and the fact it had the powers which if exercised would have prevented the risk

materialising); and Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20 (water authority had no control over the removal of the tree which caused the death of the respondent’s husband). 10.142 Vulnerability of the plaintiff is relevant if there was nothing they could do to protect themselves against the harm. In Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102, the appellant argued that it was vulnerable as it had no ‘real opportunity’ to protect itself when served with a notice under s 91 of the Protection of the Environment Operations Act 1997 (NSW) requiring clean-up of pollution incidents within a specified time. The Court of Appeal agreed with the trial judge’s assessment that the appellant was not vulnerable merely because the exercise of the power would cause economic detriment to the appellant. The appellant could have protected itself by taking legal advice upon being served with the notice, or challenged the notice as it appeared to be invalid on its face: at [110]. See also Dansar Pty Ltd v Bryon Shire Council (2014) 89 NSWLR 1 at [180].

Coherency 10.143 A statutory authority’s public responsibilities, functions and powers must be reconciled with the private legal rights recognised by the existence, nature and scope of the private common law duty of care in a negligence action. If a conflict or potential incoherency will result from the recognition of a duty of care, then no duty of care will be recognised by the common law courts. In Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 (see 10.28), no duty of care was owed to the plaintiff father because it could have been in conflict with the defendant’s statutory responsibilities under the Act for the protection of children. [page 242] 10.144

In Stuart v Kirkland-Veenstra (2009) 237 CLR 215; 254 ALR 432,

the High Court held that to recognise a duty of care in respect of the police officers failing to take Veenstra into protective custody would be to recognise a duty to rescue, which is not part of Australian law. Gummow, Hayne and Heydon JJ stated (at [99]): The duty which is postulated in the present case is expressed in terms which, on their face, would require every person who knows (perhaps every person who ought to know) that another is threatening self-harm to take reasonable steps to prevent that harm. Presumably, performance of a duty described in those terms would require the person, in an appropriate case, to exercise the power given by s 463B of the Victorian Crimes Act (or equivalent provisions) and use reasonable force to prevent the commission of suicide or “of any act which he believes on reasonable grounds would, if committed, amount to suicide”. Presumably it is a duty which would require the person to call for police so that they could exercise powers under s 10. And all this regardless of whether the person threatening self-harm is in fact mentally ill, or appears to be so. So expressed the duty would be a particular species of a general duty to rescue. The common law of Australia has not recognised, and should not now recognise, such a general duty of care.

Further, the duty would infringe upon an individual’s autonomy, ‘an underlying value of the common law’: at [87]. 10.145 To impose a duty to avoid the economic loss suffered by the appellant in Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008) 74 NSWLR 102 was considered to be in conflict with the purpose of the Protection of the Environment Operations Act 1997 (NSW) as well as a lack of coherence with administrative law, as the claim amounted in substance to an ‘assertion of a compensatory claim for administrative error’: at [118]. Allsop P held (at [114]): The imposition of a duty of care to have regard to the economic interests of a person in the position of the appellant in the way proposed would be to subject the Council, whose responsibility is to exercise the power in the public interest, to a duty to have regard to the conflicting interests and claims of the party whose conduct (on this hypothesis) may have endangered the environment and the public interest. The setting up of this tension between the statute and the common law should not be permitted: Sullivan v Moody [(2001) 207 CLR 562] (at 582).

See also New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [26].

Road Authorities 10.146 Historically a public authority acting as a road authority incurred no liability in negligence for loss arising from its nonfeasance: Buckle v Bayswater Road Board (1936) 57 CLR 259; Gorringe v Transport Commission (Tas) (1950) 80 CLR 357. This traditional immunity for nonfeasance provided that no liability attached to the road authority simply because it failed to inspect, maintain or repair defects in a road or highway. 10.147 The High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145 (Brodie) by a 4:3 majority held that the ‘highway immunity for nonfeasance rule’ should be replaced by the same general principles of negligence which govern all other statutory authorities. 10.148 The decision in Brodie attracted much criticism and, in particular, concerns that the abolition of the highway rule would lead to a flood of claims against roads authorities [page 243] and councils. When these concerns were to some extent realised, even though few were successful, several jurisdictions partially reinstated the highway nonfeasance rule in the civil liability legislation. For example, s 37 of the Civil Liability Act 2003 (Qld) provides: Restriction on liability of public or other authorities with functions of road authorities (1) A public or other authority is not liable in any legal proceeding for any failure by the authority in relation to any function it has as a road authority — (a) to repair a road or to keep a road in repair; or (b) to inspect a road for the purpose of deciding the need to repair the road or to keep the road in repair. (2) Subsection (1) does not apply if at the time of the alleged failure the authority had

actual knowledge of the particular risk the materialisation of which resulted in the harm. (3) … [meaning of the term roads authority]

See also Civil Law (Wrongs) Act 2002 (ACT) s 113; Civil Liability Act 2002 (NSW) s 45; Civil Liability Act 1936 (SA) s 42; Civil Liability Act 2002 (Tas) s 42; Road Management Act 2004 (Vic) s 102; Civil Liability Act 2002 (WA) s 52. 10.149 Therefore, under the civil liability legislation, a road authority will not be liable if the loss arose from a failure on its part to inspect or repair a road, unless it has ‘actual knowledge of the particular risk the materialisation of which has resulted in the harm’. If the road authority does have actual knowledge, no immunity applies and instead an action in negligence as determined by the usual principles in respect of public authorities will apply. 10.150 The meaning of the term ‘actual knowledge’ has been considered by courts in New South Wales. In North Sydney Council v Roman (2007) 69 NSWLR 240, the respondent was injured when she fell due to a large hole in the road. At trial the respondent argued that the road authority could not claim immunity under s 45 of the Civil Liability Act 2002 (NSW) as it had actual knowledge of the hole. It was claimed that street sweepers worked regularly on the road and therefore it could be inferred that the appellant had actual knowledge as a part of their job was to report hazards. In a 2:1 majority decision, Basten JA, with whom Bryson JA agreed, held that the street cleaners’ knowledge of the pothole was not sufficient to constitute the necessary ‘actual knowledge’ necessary to negate the immunity. Basten JA held (at [156]–[157]): … actual knowledge must be found in the mind of an officer within the council having delegated (or statutory) authority to carry out the necessary repairs. This conclusion is consistent with the language of s 45(1). The section confers an immunity on a roads authority where harm arises “from a failure of the authority to carry out road work”. The exception only arises where “at the time of the alleged failure” the authority had actual knowledge of the particular risk. A purposive construction would require that the relevant

knowledge exist in an officer responsible for exercising the power of the authority to mitigate the harm. The existence of the power is only coupled with a duty to act in circumstances where such knowledge exists. Accordingly, the knowledge must exist at or above the level of the officer responsible for undertaking necessary repairs. The knowledge of others without such responsibility will not, relevantly for the purposes of the provision, constitute “actual knowledge” of the roads authority

[page 244] itself; at best it could give rise to “constructive” or imputed knowledge. The use of the term “actual” precludes reliance on constructive or imputed knowledge. It follows that, even if a street sweeper having a duty to note and report defects, was aware of the pothole, the immunity is engaged absent proof on the balance of probabilities that the officer in charge of maintenance works received that information.

See also Roads and Traffic Authority (NSW) v Rolfe [2010] NSWSC 714 at [53] (engineer and district maintenance manager was ‘not a street sweeper’ but ‘the relevant decision maker’); Blacktown City Council v Hocking (2008) Aust Torts Reports ¶81-956; Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81-955. See Nightingale v Blacktown City Council [2015] NSWCA 423 where the majority of the New South Wales Court of Appeal held that as the decision of North Sydney Council v Roman (2007) 69 NSWLR 240 was ‘not plainly wrong’, the court would not depart from the decision: at [62], referring to Gett v Tabet (2009) 254 ALR 504. However, Simpson JA held that the decision was ‘plainly wrong’ as the omission by the legislature to specify who was to have the actual knowledge must have been deliberate: at [101]–[104]. It is predicted that at some point the interpretation of this term will be considered by the High Court. 10.151 In Collins v Clarence Valley Council [2015] NSWCA 263, the appellant was injured when her bicycle got stuck between the wooden planks of a bridge that was in the care, control and management of the respondent. The court held that that as the respondent did not have ‘actual knowledge’; of

the ‘particular risk’, that is, the particular hole which the appellant’s bicycle struck, it did not have actual knowledge. To have knowledge of the general condition of the bridge was not sufficient to negate the immunity. See also Botany Bay City Council v Latham (2013) 197 LGERA 211.

Further Reading M Aronson, ‘Government Liability in Negligence’ (2008) 32 MULR 44. R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 7. D Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 TLJ 13. B Codd, R D Hinchy and V Nase, ‘An Alternative View of Woolcock Street Investments v CDG Pty Ltd’ (2004) 12 TLJ 194. M Kirby, ‘Judicial Activism? A Riposte to the Counter-Reformation’ (2004) 24 Aust Bar Rev 219. —, ‘Ten Years in the High Court — Continuity and Change’ (2005) 27 Aust Bar Rev 4. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 2. J Stapleton, ‘Duty of Care and Economic Loss: A Wider Agenda’ (1991) 107 LQR 249. —, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24 Aust Bar Rev 1.

1.

And, in fact, several state legislatures subsequently modified the common law liability of road authorities in the civil liability legislation enacted in response to the insurance crisis and the Ipp Report; Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp

Report), October 2002, available at . 2.

For a more detailed consideration of the incremental approach, see K M Stanton, ‘Incremental Approaches to the Duty of Care’ in N J Mullany (ed), Torts in the Nineties, LBC Information Services, Sydney, 1997, pp 34–55.

3.

M Kirby, ‘Judicial Activism? A Riposte to the Counter-reformation’ (2004) 24 Aust Bar Rev 219 at 232.

4.

C Radcliffe, The Law and its Compass, Faber and Faber, London, 1960.

5.

J Stapleton, ‘The Golden Thread at the Heart of Tort Law: Protection of the Vulnerable’ (2003) 24 Aust Bar Rev 1 at 1–3.

6.

For an examination of the various policy considerations in relation to pure psychiatric claims, see D Butler, ‘An Assessment of Competing Policy Considerations in Cases of Psychiatric Injury Resulting from Negligence’ (2002) 10 TLJ 13.

7.

See note 6 above, at 16–17.

8.

The common law already recognised liability for fraudulent misrepresentations in the tort of deceit: see Chapter 19.

9.

But see B Codd, R D Hinchy and V Nase, ‘An Alternative View of Woolcock Street Investments v CDG Pty Ltd’ (2004) 12 TLJ 194, where the authors argue that commercial realities meant the plaintiff was not necessarily able to protect itself.

10.

Under the Westminster system of government, which Australia inherited from England, the executive branch of government is distinguished from the two other branches of government: the judicial and parliamentary branches.

11.

The producers and distributors of the oysters were also parties to the action, on the basic principles of Donoghue v Stevenson, but were found not to be in breach of the duty.

[page 245]

Chapter 11 Standard of Care and Breach 1

Introduction

11.1 Gummow J in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [18] explained the settled legal principles in respect of establishing a breach of a duty of care: … the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217.

11.2 The negligence action is concerned as to whether the defendant failed to achieve the standard of care imposed by the law. Alderson B stated in Blyth v Birmingham Waterworks Co (1856) 11 Ex 781 at 782: Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

Therefore ‘while duties of care may vary in content or scope, they are all to be discharged by the exercise of reasonable care’: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [49]; Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711. 11.3 In determining whether the duty of care has been breached, two issues need to be addressed:

1.

What is the relevant standard of care?

2.

Has that standard been breached?

In practice, most of the evidentiary contests in litigation centre on evidence in respect of the element of breach, rather than the existence of a duty or the damage. [page 246]

2

Standard of Care

Objective Test 11.4 The standard of care required in a particular case is a question of law for the court to determine: Glasgow Corporation v Muir [1943] AC 448 at 454; Bolton v Stone [1951] AC 850 at 860; Paris v Stepney Borough Council [1951] AC 367 at 384. 11.5 An objective standard is applied and, in order to achieve this, reference is made to the reasonable person. Lord Radcliffe, in Davis Contractors v Fareham Urban District Council [1956] AC 696 at 722, stated ‘the reasonable man’ was ‘the anthropomorphic conception of justice’. The use of this fictional figure is designed to mask the value judgments of judges in determining, as a matter of policy, what reasonable conduct ought to be. 11.6 The courts stress that reasonable care must be measured according to the circumstances of each case, including the relationship between the plaintiff and defendant: Smith v Jenkins (1970) 119 CLR 397 at 400. In Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 at [69], it was stated: The common law recognises many circumstances in which the standard of care expected of a person takes account of some matter that warrants identifying a class of persons or activities as required to exercise a standard of care different from, or more particular than, that of some

wholly general and “objective community ideal”. Chief among those circumstances is the profession of particular skill. A higher standard of care is applied in those cases. That standard may be described by reference to those who pursue a certain kind of occupation, like that of medical practitioner, or it may be stated, as a higher level of skill, by reference to a more specific class of occupation such as that of the specialist medical practitioner. At the other end of the spectrum, the standard of care expected of children is attenuated. [footnotes omitted]

11.7 Therefore, although it is an objective test, certain characteristics or circumstances must be taken into account in order to determine the relevant standard of care. As Davies and Malkin note, ‘it makes no sense to ask what a reasonable person would or would not do while performing brain surgery unless one assumes that the reasonable person is, like the actual defendant, a brain surgeon’.1 11.8 The standard of care has been restated in some of the civil liability legislation as being that required of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose: see Civil Law (Wrongs) Act 2002 (ACT) s 42; Civil Liability Act 1936 (SA) s 31.

Children 11.9 Young children are expected to exercise only the degree of care one would expect of a child of the same age and experience: McHale v Watson (1966) 115 CLR 199. [page 247] McHale v Watson involved a 12-year-old defendant who threw a steel dart at a wooden post while playing. The dart struck the plaintiff, a nine-year-old, in the eye. The plaintiff sued the defendant, alleging that the defendant had failed to take reasonable care in throwing the dart. The High Court of

Australia held, by a majority of 2:1, that the defendant had not been negligent. Although an adult might have been negligent if the dart had been thrown in the same way, the defendant, a 12-year-old, was not. Kitto J stated (at 213): [A] defendant does not escape liability by proving that he is abnormal in some respect which reduces his capacity for foresight or prudence. The principle is of course applicable to a child. The standard of care being objective, it is no answer for him, any more than it is for an adult, to say that the harm he caused was due to his being abnormally slow-witted, quick-tempered, absent-minded or inexperienced. But it does not follow that he cannot rely in his defence upon a limitation upon the capacity for foresight or prudence, not as being personal to himself, but as being characteristic of humanity at his stage of development and in that sense normal.

11.10 If the child engages in adult activities the child may be judged by the standard of a reasonable adult: Tucker v Tucker [1956] SASR 297 (driving a motor vehicle). See Zanner v Zanner (2010) 79 NSWLR 702 where it was held that an 11-year-old driving his mother’s car under her supervision into the family carport had breached the standard of care. Tobias JA stated (at [60]): The act of negligence in the present case was the failure of the first appellant to keep his foot on the brake and to prevent it slipping onto the accelerator. That was not an activity whose importance would be beyond the understanding of an 11 year old. It is a mistake that could happen to an adult as well as to a child of the first appellant’s age. There is no reason, in my view, why the first appellant was not bound to exercise reasonable care not to permit his foot to so slip. There is nothing to suggest that he did not understand the purpose of the brake or the effect of depressing the accelerator. It would not be unreasonable to infer that an 11 year old, who had successfully manoeuvred his father’s vehicle into and out of the carport on five or six previous occasions, understood the purpose of the brake and how it fitted into the function he was undertaking and that it was important that he not take his foot off the brake as the car would then move forward (or back if he was in reverse) more rapidly.

Physical or mental impairment 11.11 Since the standard is that of the reasonable person, one general implication is that any disability in the defendant must be disregarded; for example, individual intelligence should be ignored: Baxter v Woolcombers Ltd (1963) 107 Sol Jo 553. 11.12 Nevertheless, the courts are prepared to look to the circumstances of every case so that if the defendant does suffer from a physical disability (for

example, epilepsy), the test of reasonable care may depend on whether the defendant, in the circumstances, embarked upon a task demanding alertness having regard to what he or she knew or ought to have known about the disability. In Roberts v Ramsbottom [1980] 1 All ER 7, the defendant caused a few motor vehicle accidents in one journey but claimed not to be liable in negligence as 20 minutes prior he had suffered a stroke and, therefore, was not able to control his car properly or to appreciate that he was not capable of driving. The court found the defendant to be liable as he had been aware of his disabling symptoms after the first incident but [page 248] had continued to drive. Although the defendant was not able to appreciate the proper significance of the symptoms, impaired judgment was no defence. 11.13 Mental disability should also be ignored as the reasonable person is never insane: Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56. In Carrier v Bonham [2002] 1 Qd R 474 at [8], McMurdo P of the Queensland Court of Appeal stated: Whilst a child’s actions in a negligence claim can be judged by the objective standard to be expected of an ordinary reasonable child of comparable age, the action of an adult lacking capacity because of mental illness in a negligence claim cannot be similarly judged by any objective standard of an ordinary reasonable person suffering from that mental illness; if the mental illness has deprived the person of capacity then the person has also been deprived of rationality and reasonableness. The standard of care must be the objective standard expected of the ordinary person.

Skill and knowledge 11.14 A person having a special skill or knowledge above that of a reasonable person will be expected to attain the standard of a reasonable person with that skill or knowledge: Chin Keow v Government of Malaysia

[1967] 1 WLR 813. In Lanphier v Phipos (1838) 8 C & P 475 at 479; 173 ER 581 at 583, it was explained: Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of skill and care. He does not undertake, if he is an attorney, that at all events you shall gain your case, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable and competent degree of skill.

See also Heydon v NRMA Ltd (2000) 51 NSWLR 1 at 117, where it was stated: [Barristers and solicitors] are bound to have and to exercise the degree of skill and care that is to be expected of persons professing and practising in their area of expertise … In giving advice, a lawyer does not warrant or guarantee the soundness of his or her opinion but only that the requisite degree of skill and care has been used in arriving at it.

11.15 Specialising within a field will also be taken into account when determining the standard of care. For example, the standard of care expected of a medical practitioner is that of a normally skilful and careful medical practitioner: Mahon v Osborne [1939] 2 KB 14. A specialist, though, will owe a standard of the skill of persons practising in that area of speciality: Rogers v Whitaker (1992) 175 CLR 479 at 483; 109 ALR 625 at 631. The same applies to a legal practitioner. In Yates Property Corporation Pty Ltd (in liq) v Boland (1998) 85 FCR 84 at 105; 157 ALR 30 at 50–1, it was held: When a client retains a firm that is or professes to be specially experienced in a discrete branch of the law that client is entitled to expect that the standard of care with which his retainer will be performed is consistent with the expertise that the firm has or professes to have. … Thus, the content of the standard of care that is to be owed by a solicitor to his client under the general law should not be confined to the standard of care and skill that is possessed by a person of ordinary competence exercising the same calling. The standard should reflect the fact that

[page 249] within any one calling practitioners have or profess to have varying degrees of expertise. The standard of care and skill required of such a person must bear some relationship to that

expertise. In the case of a solicitor who is an expert in a particular branch of the law the requirement should be that the solicitor must carry out his retainer as would a reasonably competent solicitor who is an expert in that particular area of the law.

See also Goddard Elliott (a firm) v Fritsch [2012] VSC 87 at [412]–[414]. In Swick Nominees Pty Ltd v Leroi International Inc (No 2) [2015] WASCA 35 at [133], the standard of care of an engineer in respect of the design and manufacture of a machine was described as: … what a reasonably competent engineer in the position of the designer and manufacturer would have done, in the circumstances, to produce a machine that was able reliably to perform its ordinary functions. This involves identifying, with some precision, the design and the manufacturing process that the reasonably competent engineer would have adopted.

Lack of knowledge or skill 11.16 As the test of the standard of care is objective, lack of knowledge cannot be pleaded if a reasonable person in the circumstances would possess that knowledge. Likewise, if a reasonable person would not possess the knowledge or skill, it cannot be argued that the knowledge or skill sets the standard. In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139, the plaintiffs suffered pure economic loss after planting canola seeds, sold by the defendant, which contained weeds. The Western Australian authority required the fields of canola to be cleared and the seeds from the crops to be destroyed for a period of five years. The High Court approved the approach of Finkelstein J of the Federal Court ((2000) 105 FCR 467 at 506), stating (at [163]): … the usual knowledge of an agricultural scientist cannot set the standard of care to be observed by a seed merchant. Further, common knowledge of the kind to which the primary judge referred is of no significance unless there is a basis for concluding that the reasonable person in Dovuro’s position not only ought reasonably to have known, or to have found out, whether any of the three plants already grew in the area concerned, but also knew, or ought reasonably to have known that, if the plants were exotic, they would or may later be declared to be prohibited plants.

11.17

Reasonable care must be related to the circumstances of the time

and place. For example, the standard of care of a doctor in a particular case must be related to medical knowledge at the time of the alleged breach: Roe v Minister of Health [1954] 2 QB 66. The trial often takes place several years after the damage is sustained, when further medical advances have taken place that were not in existence as medical practice at the time of the act or omission. The defendant is not to be credited with such hindsight. In H v Royal Alexandra Hospital for Children (1990) Aust Torts Reports ¶81-000, the failure to warn of the risk of AIDS being transmitted through antihaemophilic therapy was not negligent at the time. 11.18 The civil liability legislation has affirmed this in provisions in relation to the standard of care for professionals. Section 22(1) of the Civil Liability Act 2003 (Qld) states [page 250] that the service provided is judged as at the time the service was provided. See also Civil Liability Act 2002 (NSW) s 5O(1); Civil Liability Act 1936 (SA) s 41(1); Civil Liability Act 2002 (Tas) s 22(1); Wrongs Act 1958 (Vic) s 59(1); Civil Liability Act 2002 (WA) s 5PB(1). The legislation in the Australian Capital Territory and South Australia also provides a generic statement that the standard of care is that of a reasonable person as at the time of the incident: Civil Law (Wrongs) Act 2002 (ACT) s 42; Civil Liability Act 1936 (SA) s 31(1). 11.19 Persons carrying out tasks that require certain skills, without claiming to possess those skills, cannot owe the same standard of care as a reasonable person possessing those skills. Laypersons carrying out tasks that trained persons ordinarily would perform will not owe the higher standard of the trained person. In Blackmore v Beames (SASC, King CJ, Cox and Matheson JJ, No 92–709, 8 February 1993, unreported), the defendants

assisted the plaintiff in work on the transom of the plaintiff’s motor launch. The defendants did not possess any particular skills in relation to transoms. King CJ stated (at 3): The relationship in this case is of particular importance. There was no contractual relationship between the parties nor any business element in the relationship. The defendants did not hold themselves out as tradesmen and there is no question, therefore, of applying the standard of care and skill to be expected of a person carrying on a particular trade or calling. The relationship was simply that of persons assisting a friend in a task which he wished to have performed. The first named plaintiff was aware that the defendants did not hold themselves out as possessing any relevant skills. In those circumstances I consider that the plaintiffs could expect of the defendants the exercise of only such degree of skill and knowledge in relation to the task as they actually possessed, together with the degree of care which a reasonable person would exercise in such circumstances.

On the facts of that case, there had been no breach of the standard: I do not think that any want of reasonable care has been proved. There was an error of judgment in not ensuring that water could not enter the boat but the error resulted not from want of care but from a mistaken belief as to the thickness of the transom. In the circumstances I consider that the error of judgment did not amount to a breach of the defendants’ duty to the plaintiffs: at 5.

11.20 However, if a defendant carries out a task that a reasonable person would believe requires an expert to perform, they are holding themselves out to possess those skills and will be judged according to the standard of care required of such an expert: Caminer v Northern & London Investment Trust Ltd [1951] AC 88 at 108, 111–12, cited with approval in Papantonakis v Australian Telecommunications Commission (1985) 156 CLR 7; 57 ALR 1. In Papantonakis v Australian Telecommunications Commission, Deane J stated (at CLR 36; ALR 22): A reasonably prudent occupier does not rely merely on his own judgment and skill in a situation where technical expertise which he does not possess is required. He should obtain and follow proper technical advice or employ a qualified person to perform repairs requiring expert skill (see, eg Haseldine v C A Daw & Son Ltd [1941] 2 KB 343 at 356; Wells v Cooper [1958] 2 QB 265 at 271). If he meddles himself, he cannot complain if the standard of care and foreseeability of injury which the law exacts of him are not those of the hypothetical person on a hypothetical Bondi tram or Clapham omnibus but those of the ‘ordinary skilled [person] exercising and

[page 251] professing to have that special skill’ (per McNair J, Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 at 586).

This position has been restated in legislation in South Australia and Victoria, where a defendant holding themselves out as possessing a particular skill will be judged according to the level of skill that could be reasonably expected of a person possessing that skill: Civil Liability Act 1936 (SA) s 40; Wrongs Act 1958 (Vic) s 58.

Inexperience 11.21 No allowance is made for inexperience where there is the exercise of some special skill involved. An inexperienced medical practitioner is expected to reach the usual standard of a normally skilful and careful practitioner: Jones v Manchester Corporation [1952] 2 QB 852 at 868; Hancock v Queensland [2002] QSC 027 at [10]. 11.22 In 1986, the High Court created an exception to this principle in Cook v Cook (1986) 162 CLR 376; 68 ALR 353, holding that inexperience could lower the standard of care if a special relationship existed between the plaintiff and defendant. A special relationship could be established if the plaintiff knew of the defendant’s inexperience and the breach of duty arose from the defendant carrying out the activity in which they were inexperienced. In such circumstances, the standard of care was to reflect that inexperience. 11.23 However, the High Court revised this position in Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647. The appellant was injured in a car accident, the respondent driver being 16 years old and unlicensed. The respondent, driving the high-set vehicle at approximately 80 km per hour, swerved around debris on the gravel road but steered too far left, causing the

wheels to go onto the shoulder of the road which consisted of loose sand, gravel and dust. Instead of steering back onto the road, the respondent accelerated and turned too far right, causing the vehicle to cross the road. The respondent then attempted to right the vehicle but oversteered once again, resulting in the vehicle rolling onto its roof. Before the New South Wales Court of Appeal, the respondent argued that the acceleration and the oversteering was a product of inexperience and was not a breach of the relevant standard of care. Applying the decision of Cook v Cook, the majority (Beazley and Basten JJA) held that the actions of the respondent had breached the standard of care expected from an inexperienced driver: McNeilly v Imbree (2007) 47 MVR 536; Aust Torts Reports ¶81-895. On appeal to the High Court, the appellant argued that the decision of Cook v Cook should be overruled and that it should be held that the respondent owed him ‘the same objective standard of care as a licensed driver’: at [37]. A majority of the High Court (6:1) agreed with that proposition and held that learner drivers owe the same standard of reasonable care to all road users, including driving instructors, supervisors and passengers. Gummow, Hayne and Kiefel JJ stated (at [57]–[58]): Describing the relevant comparator as the reasonable ‘inexperienced’ driver does not sufficiently identify the content of the standard of care that is intended to be conveyed by the use of the word “inexperienced”. In particular it leaves undefined what level of competence is to be assumed in such a driver. …

[page 252] What is at issue is the definition of a standard of reasonable care, not any external recognition of attaining an ability to drive in accordance with that standard. And for like reasons, to describe the relevant comparator as a “licensed driver” diverts attention from the central inquiry: what would a reasonable driver do? Being authorized by the applicable law to drive unsupervised on a public road is neither necessary nor a sufficient characteristic of the reasonable driver. Holding or not holding the relevant licence is irrelevant to the description or application of the relevant

standard of care. The reasonable driver is to be identified by what such a driver would do or not do when driving, not by what authority a driver would need to have in order to drive lawfully.

11.24 In Cook v Cook (1986) 162 CLR 376; 68 ALR 353, the imposition of a reduced standard of care hinged upon the plaintiff’s knowledge of the defendant’s inexperience and lack of skill. Such knowledge was held in Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 not to be a sufficient nor certain enough basis to conclude that ‘some lesser yet objective standard of care should be applied’: at [86]. The standard of care expected from a learner driver is that of a reasonable driver: at [72]. Only Heydon J declined to overrule Cook v Cook, stating that even if the standard of care as mandated by Cook v Cook applied to the respondent’s duty of care, the trial judge’s finding that the respondent had ‘behaved with carelessness over and above what could be attributed merely to inexperience’ (McNeilly v Imbree (2007) 47 MVR 536; Aust Torts Reports ¶81-895 at [48]) was correct: (2008) 236 CLR 510; 248 ALR 647 at [186]. 11.25 The overruling of the reduced standard, based upon knowledge of inexperience established over 20 years ago in Cook v Cook, brought Australian law into line with the position of the United Kingdom. In Nettleship v Weston [1971] 2 QB 691, the plaintiff was injured while giving driving lessons to a friend. The English Court of Appeal held that the defendant owed the same standard of care as a competent and experienced driver to her passenger, despite her inexperience. Kirby J, in Imbree v McNeilly, stated that he agreed with the practical considerations that Megaw LJ in Nettleship v Weston (at 707–9) referred to in rejecting the argument that a lower standard of care was owed: 236 CLR 510; 248 ALR 647 at [135]. The considerations included: the unpredictability of having different standards owed by the same driver to different categories of road users; that lengthy debates would arise to determine the exact state of inexperience; and

the extent of the inexperience may not be revealed until the actual incident.

Intoxication 11.26 It is often stated by the courts that the reasonable person is a sober person: Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [38]. In Insurance Commissioner v Joyce (1948) 77 CLR 39, the High Court held that a passenger who knows the circumstances and voluntarily rides with a drunken driver cannot expect any degree of care in driving, so far as it is affected by the drunkenness. This reduced standard of care argument, often referred to as the ‘no breach of duty’ defence, was not raised in many cases, the more common approach being to raise the defences of contributory negligence and voluntary assumption [page 253] of risk: see Chapter 13. With the decision of Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 overruling the notion of a reduced standard of care, in respect of learner drivers, the argument will now fail. 11.27 Section 31(2) of the Civil Liability Act 1936 (SA) provides for a change in the standard of care owed if specific circumstances exist. The subsection states: The reasonable person in the defendant’s position will be taken to be sober unless — (a) the defendant was intoxicated; and (b) the intoxication was wholly attributable to the use of drugs in accordance with the prescription or instructions of a medical practitioner; and (c) the defendant was complying with the instructions and recommendations of the medical practitioner and the manufacturer of the drugs as to what he or she should do, or avoid doing, while under the influence of the drugs, and, in that event, the reasonable person will be taken to be intoxicated to the same extent as the defendant.

There are no equivalents in the other jurisdictions.

Emergency 11.28 An emergency may render an action reasonable that, in other circumstances, would not be considered reasonable. The courts acknowledge that defendants may not recognise what is reasonable if the circumstances are such that they are acting under pressure. An example of this can be found in Broughton v Competitive Foods Australia Pty Ltd (2005) Aust Torts Reports ¶81-791, where the plaintiff had entered the premises of a fast food restaurant, seeking safety from a group of young men who were chasing him. The security guard of the restaurant turned him out of the premises. After being forced to leave the restaurant, the plaintiff was attacked by the group and was injured. The plaintiff argued that the security guard, employed by the defendant, was negligent in turning him out of the premises. The Court of Appeal took into account the fact that the security guard was acting under pressure. Hodgson JA stated (at [13]): In the heat of the moment, it would have been difficult for such a person to make an accurate assessment of the probability of the group outside attempting to enter the premises, of whether and/or how this could be prevented, of what might happen in that event, and of how all the opposing considerations properly balanced out. On calm reflection and with the wisdom of hindsight, I am inclined to think the right response would have been not to eject the plaintiff and his friends; but I am not satisfied that the ordinary reasonable person would have appreciated this in the heat of the moment.

11.29 In relation to assisting in a medical emergency, the possibility of not acting reasonably has been recognised in ss 26 and 27 of the Civil Liability Act 2003 (Qld). For example, s 26 states: (1) Civil liability does not attach to a person in relation to an act done or omitted in the course of rendering first aid or other aid or assistance to a person in distress if — (a) the first aid or other aid or assistance is given by the person while performing duties to enhance public safety for an entity prescribed under a regulation that provides services to enhance public safety; and

[page 254] (b) the first aid or other aid or assistance is given in the circumstances of emergency; and (c) the act is done or committed in good faith and without reckless disregard for the safety of the person in distress or someone else.

‘Person in distress’ is defined in s 25 to include a person who is injured or suffering an illness, apparently injured or suffering an illness or at risk of injury. This section applies to a person ‘performing duties to enhance public safety’ for a prescribed entity (s 26(1)(a)) or the prescribed entity itself: s 27(1) (a). The Civil Liability Regulation 2003 (Qld) lists the entities and persons protected by these sections, for example protection is given to the Queensland Ambulance Service and the Queensland Fire and Rescue Service: Sch 1 and 2. The civil liability legislation of most jurisdictions gives protection if aid is given at the scene of an emergency, in good faith and without recklessness (called protection of good Samaritans): Civil Law (Wrongs) Act 2002 (ACT) s 5; Civil Liability Act 2002 (NSW) Pt 8; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8; Civil Liability Act 1936 (SA) s 74; Civil Liability Act 2002 (Tas) Pt 8A; Wrongs Act 1958 (Vic) Pt VIA; Civil Liability Act 2002 (WA) Pt 1D. There is no equivalent in Queensland. In Western Australia, the Civil Liability Act 2002 s 5AAC provides protection to staff members of schools and child care centres for acts or omissions at the scene of an emergency in assisting an enrolled child in need of emergency medical assistance. No civil liability will be incurred by the staff member if the act or omission is in good faith and without recklessness in the course of their employment. The provision does not affect the vicarious liability of any person for the act or omission of the staff member (s 5AAC(2)) and will not apply if at the time the staff member’s ability to exercise reasonable care was impaired by self-induced intoxication by alcohol or drugs: s 5AAD.

Skill and knowledge of the plaintiff 11.30 The special skill of a plaintiff may have to be weighed in setting the standard of care. Bus v Sydney County Council (1989) 167 CLR 78; 85 ALR 577 illustrates the implications of both plaintiff and defendant being skilled. The case involved a council electrician who had been working on a Sydney County Council service box and a private electrician who was working in the same area. The private electrician commenced work adjacent to the service box and came into contact with live terminals, causing him to be fatally electrocuted. His widow and children brought an action against the council. The trial judge refused to find negligence on the part of the council electrician. The New South Wales Court of Appeal dismissed the appeal ((1988) 12 NSWLR 675), following the High Court decision of Sydney County Council v Dell’Oro (1974) 132 CLR 97; 4 ALR 417, holding that a competent electrical tradesman has no responsibility to protect other competent electrical tradesmen against the risk of injury from inadvertent contact with live electrical equipment controlled by the first tradesman, when the risk is known to the injured tradesman. On appeal to the High Court, it was held that the decision in Sydney County Council v Dell’Oro turned on the failure to observe the standard of care appropriate in the circumstances of [page 255] that particular negligence case, rather than on the precise scope of the duty of care, and, hence, the earlier case did not formulate a binding statement of general principle. It also did not support an inflexible proposition that expert tradesmen are expected to see to their own safety as regards known risks involved in their daily work. Since that decision, the law has placed increased emphasis on the relevance of the possibility of negligence or inadvertence by

the person to whom the duty is owed and that possibility is relevant to the standard of care owed by employer to employee. See, for example, S J Sanders Pty Ltd v Schmidt [2012] QCA 358 at [29].

Child plaintiff 11.31 If the plaintiff is a child, this may impose a higher standard of care upon the defendant: Shellharbour City Council v Rigby (2006) 150 LGERA 11; Aust Torts Reports ¶81-864. For example, motorists owe a greater standard of care when in the vicinity of children: see Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 at 372–5; Gunning v Fellows (1997) 25 MVR 97 at 98; Mobbs v Kain (2009) 54 MVR 179 at [87]; Baker v MacKenzie (2015) 72 MVR 421 at [33]. 11.32 The age and experience of the child will be relevant in determining the standard of care owed. In Doubleday v Kelly [2005] NSWCA 151, the court held that the defendants were in breach of the duty of care they owed to the seven-year-old plaintiff. Bryson J stated the factors that may be taken into account: … circumstances include the age and experience of the children and any special characteristics which a particular child may have, such as being adept in the use of the equipment, or being known to be inept; there are many possible variations in circumstances, including most importantly the age and experience of the children: at [19].

See also Leyden v Caboolture Shire Council [2007] QCA 134.

Intoxicated plaintiff 11.33 The fact that a plaintiff is intoxicated at the time they are injured does not impose a higher standard of care upon a defendant. In Parsons v Randwick Municipal Council [2003] NSWCA 171, it was held that a plaintiff who alleged a breach of duty against a council in respect of injuries they suffered as a result of tripping over a crack in a footpath when affected by alcohol, had to establish that a sober pedestrian would not have seen the crack and would have been injured.

Some jurisdictions have expressly stated in the civil liability legislation that the intoxication of the plaintiff does not of itself increase the standard of care owed: Civil Liability Act 2002 (NSW) s 49(1)(c); Civil Liability Act 2003 (Qld) s 46(1)(c). See also Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469; 207 ALR 52.

3

Breach of Standard

11.34 Once the standard of care owed by the defendant in the circumstances has been set, it is then a question of fact whether the defendant has achieved that standard or is in breach. [page 256] Section 9 of the Civil Liability Act 2003 (Qld) states: (1) A person does not breach a duty to take precautions against a risk of harm unless — (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.

See also Civil Law (Wrongs) Act 2002 (ACT) s 43; Civil Liability Act 2002 (NSW) s 5B; Civil Liability Act 1936 (SA) s 32; Civil Liability Act 2002 (Tas) s 11; Wrongs Act 1958 (Vic) s 48; Civil Liability Act 2002 (WA) s 5B. There is no equivalent provision in the Northern Territory legislation. 11.35 The civil liability legislation provisions relating to breach of duty of care have been described as a restatement of the law contained in the High Court decision of Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217: see New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406; Council

of the City of Greater Taree v Wells [2010] NSWCA 147; Waverley Council v Ferreira (2005) Aust Torts Reports ¶81-818 at [45]. 11.36 In New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406, there was an attempt to have the principle of Wyong Shire Council v Shirt overruled by the High Court, but instead there was strong opposition to such an argument. Gummow and Hayne JJ stated (at [79]): … contrary to an argument advanced on behalf of the state, the fact that states and territories have chosen to enact legislation which, in some cases, may alter the way in which questions of breach of duty of care are to be approached in actions for damages for negligence provides no reason to re-express this aspect of the common law. If anything, the diversity of legislative approaches manifest in legislation enacted on this subject points away from the desirability of restating the common law. [footnotes omitted]

11.37 In applying the civil liability legislation provisions, three questions need to be addressed in order to determine whether the standard of care has been breached in fact: 1.

Was the risk foreseeable?

2.

Was the risk not insignificant?

3.

Would a reasonable person in the position of the defendant have taken the precautions?

Note, however, that Basten JA, in Drinkwater v Howarth [2006] NSWCA 222 at [21], stated: I would only add that there is a danger in seeking to take each limb of s 5B [of the Civil Liability Act 2002 (NSW)] separately in considering how it should operate. It is clear from the report of the committee which recommended the change to the foregoing common law principles that in changing the terminology from not far-fetched or fanciful they were concerned to ensure that attention was given to other aspects of the risk.

Foreseeable and Not Insignificant Risk 11.38 In order for the defendant to be liable in negligence, it is necessary that it was foreseeable that the kind of carelessness by the defendant might cause some kind of

[page 257] damage to the plaintiff. Further, since the civil liability legislation, the risk must be not insignificant. The Ipp Report2 noted that the decision of Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 was used to justify a conclusion that the standard of care had been breached on the basis that the risk of injury was reasonably foreseeable, without sufficient consideration of the precautions that a reasonable person would take: at [7.14]. The Ipp Report recommended that the formula laid down in Wyong Shire Council v Shirt needed to be modified by replacing the phrase ‘not far-fetched or fanciful’ with ‘not insignificant’: Ipp Report, Recommendation 28. At [7.15] of the report, it states: The phrase “not insignificant” is intended to indicate a risk that is of a higher probability than is indicated by the phrase “not far-fetched or fanciful”, but not so high as might be indicated by a phrase such as “a substantial risk”. The choice of a double negative is deliberate. We do not intend the phrase to be a synonym for “significant”. “Significant” is apt to indicate a higher degree of probability than we intend.

It is important to note that when considering whether a risk is foreseeable and not insignificant, ‘a mechanical or formulaic approach’ is not adopted as ‘[u]ltimately, the content of the standard of care, … is an issue of fact, which is to be resolved by an exercise of common sense’: Erickson v Bagley [2015] VSCA 220 at [37].

Foreseeable risk 11.39 A defendant cannot be held liable for a risk which they neither had knowledge of nor ought to have known: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449. The defendant must either know of the risk or a person in their position ought to have known of the risk: Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217. Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217 is the most

cited case in respect of breach in negligence as it discusses the foreseeability of the risk and the calculus of negligence under the common law. The facts were that the defendant shire council had dredged a deep channel in a shallow lake and put up signs by the channel advising ‘Deep Water’. The signs were intended to signify that the water between them was deep. The plaintiff, an inexperienced water-skier, fell from his skis while skiing in shallow water near the signs and struck his head on the shallow bottom of the lake. He suffered quadriplegic paralysis as a result. The plaintiff had been under the impression that the signs meant that the water all around them was deep. The plaintiff sued the defendant council, alleging that it had been negligent by putting up misleading signs. A majority of the High Court of Australia held that the defendant council had been negligent, even though the risk of someone misunderstanding the signs was slight, as Mason J (with whom Stephen and Aickin JJ agreed) said: A risk of injury which is quite unlikely to occur … may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any

[page 258] statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. … [A] risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable: at CLR 47; ALR 221.

11.40 The mere recognition that a risk was foreseeable does not, by itself, impose liability on the defendant: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449. 11.41

It is not necessary that the chain of events leading to risk of injury is

foreseeable. For example, if a plaintiff has susceptibility and the defendant did not know and could not reasonably be taken to have known, then the defendant will not be liable for negligence. In Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449, the High Court held that a police officer who had never met the plaintiff could not possibly have foreseen that an error made on a police report (the recording of a blood alcohol content reading at the time of a car accident) would cause the plaintiff to suffer a psychiatric condition. 11.42 Special care must be taken to ensure that the risk is not foreseeable merely because of hindsight. In Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 at [16], Gleeson CJ stated: In the way that litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumed.

In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628, a fight broke out on the appellant’s premises on New Year’s Eve. One of the men involved in the fight left the premises and returned with a gun and shot the respondent and another. The respondent successfully argued before the Court of Appeal that the appellant had breached its duty of care by failing to employ licensed security personnel to act as crowd controllers and bouncers. The High Court, however, allowed the appeal, stating that the risk had to be determined prospectively (at [40]) and: … unless the risk to be foreseen was a risk of a kind that called for, as a matter of reasonable precaution, the presence or physical authority of bouncers or crowd controllers to deal with it safely, failure to provide security of that kind would not be a breach of the relevant duty of care. As noted earlier, there was no finding at trial or in the Court of Appeal that a risk of that kind should have been foreseen: at [38].

See also Guildford Rugby League Football & Recreational Club Ltd v Coad (2001) Aust Torts Reports ¶81-623.

[page 259]

Not insignificant risk 11.43 As noted at 11.38, the civil liability legislation in many jurisdictions has modified the common law by adding to the consideration of reasonable foreseeability the question of whether the risk was not insignificant. The test of reasonable foreseeability was often criticised as being too easily satisfied. Dixon J in Chapman v Hearse (1961) 106 CLR 112 at 115 observed, ‘I cannot understand why any event which does happen is not foreseeable by a person of sufficient imagination and intelligence’. In Romeo v Conservation Commission (NT) (1998) 192 CLR 431; 151 ALR 263 at [156], Hayne J commented ‘the fact than an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far-fetched or fanciful’. This is illustrated in Borland v Makauskas [2000] QCA 521, where the plaintiff dived into a canal, knowing that the water was not deep until approximately 10 ft out. The Queensland Court of Appeal held that it was reasonably foreseeable that a person would stand on the fence of the defendant’s property and attempt to dive into the canal — highly unlikely, but it was reasonably foreseeable. See also Inverell Municipal Council v Pennington (1993) Aust Torts Reports ¶81-234 at 62,403–4; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 430–1; 112 ALR 393 at 397–8. The High Court in Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; 191 ALR 449 was also critical. McHugh J stated (at [98]): Many of the problems that now beset negligence law and extend liability of defendants to unreal levels stem from weakening the test of reasonable foreseeability.

His Honour went further to suggest that, at the breach stage, the question of reasonable foreseeability should be abandoned: So far as possible, the issue of reasonable foreseeability of risk in breach of duty situations

should no longer be determined in isolation from the issue of reasonable preventability and the ultimate issue of what reasonable care requires. Indeed at the breach stage, it is better to avoid the question of reasonable foreseeability. Instead courts should see their task as that of deciding whether the defendant knew or ought to have recognised that he or she had created an unreasonable risk of harm to others: at [102].

11.44 There have been a few decisions that consider the phrase and application of ‘not insignificant‘. In Drinkwater v Howarth [2006] NSWCA 222, the respondent was injured when a friend was pushed towards him by security officers, causing them both to fall. In considering whether the trial judge had applied the relevant provision of the civil liability legislation, requiring that the risk be not insignificant, Basten JA stated (at [19]) that the provision was: … not concerned with how a risk came about. If the plaintiff was clearly at risk, then it cannot be said that the risk was insignificant. It was a clear risk.

In the same case, Hodgson J commented (at [25]): … there is no possibility of a different result of applying a test that the risk in question be not insignificant, from applying the test as formulated in Shirt, namely that the risk be not farfetched or fanciful.

[page 260] In New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [226], Callinan and Heydon JJ did comment that: … a flexible and realistic test should be substituted for a test of foreseeability of fancifulness or otherwise. The test that commends itself to us is the one stated by Walsh J at first instance in The Wagon Mound (No 2) [Miller Steamship Co Pty Ltd v Overseas Tankship (UK) Ltd [1963] SR (NSW) 948 at 957], that what should be foreseen is a risk that is “significant enough in a practical sense”.

In the Queensland Court of Appeal, in Meandarra Aerial Spraying Pty Ltd v GEJ & MA Geldard Pty Ltd [2013] 1 Qd R 319 at [26], in discussing the phrase, it was stated: … the provision was designed to increase the degree of probability of harm which is required for

a finding that a risk was foreseeable. I think that it did produce some slight increase in the necessary degree of probability. A far-fetched or fanciful risk is necessarily so glaringly improbable as to be insignificant, but the obverse proposition may not necessarily be true. The generality of these descriptions makes it difficult to be dogmatic about this, but the statutory language does seem to convey a different shade of meaning. The difference is a subtle one. The increase in the necessary degree of probability is not quantifiable and it might be so minor as to make no difference to the result in most cases. Nevertheless, in deciding claims to which the Act applies the “not insignificant” test must be applied instead of the somewhat less demanding test of “not far-fetched or fanciful”.

In Benic v New South Wales [2010] NSWSC 1039, the risk of harm was the plaintiff, a police officer, suffering psychiatric injury as a result of receiving a threat to his life in the course of his work. The alleged breach was the failure to provide prompt and appropriate psychological or psychiatric assistance. The court noted that whether the risk was not insignificant was to be analysed from the perspective of the defendant and was to be prospective: at [411]. The evidence was that the Commissioner of Police had taken a series of steps to address stress, including psychiatric illness, among police officers. This evidence satisfied Garling J that the risk of psychiatric illness from the defendant’s perspective was not insignificant: at [414]. It was reasoned that the risk of psychiatric harm: … might affect up to one third of officers exposed to traumatic events, and it was seen by the Commissioner as sufficient to warrant the expenditure of monies … I doubt that the Commissioner would have taken these steps if the risk was an insignificant one: at [414].

Shaw v Thomas [2010] NSWCA 169 involved a 10-year-old child being injured by falling off a bunk bed when staying at a friend’s house. The risk was defined as the respondent ‘falling and injuring himself whilst descending from the top bunk of the bed in question’: at [45]. It was held that no reference should be made to the relevant Australian Standards in respect of bunk beds or a publication by the Australian Competition and Consumer Commission that referred to evidence of bunk bed injuries to children, when assessing whether the risk was not insignificant as the appellants had no knowledge of such. At [46], Macfarlan JA stated that whether the risk was not insignificant ‘was to be determined by reference to the circumstances of which reasonable people in the position of the appellants

[page 261] would have been aware’. In Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 at [32], it was stated: The significance of a risk involves two main variables, namely the seriousness of the consequences should the risk materialise and, secondly, the likelihood of the risk materialising.

In Vincent v Woolworths Ltd [2016] NSWCA 40, the Court of Appeal supported the trial judge’s conclusion that personal injury due to the plaintiff colliding with a supermarket trolley was foreseeable but did not satisfy the requirement that it be not insignificant. In coming to this conclusion, note was taken of the absence of evidence of any previous appreciable injury from a trolley and the expectation that the plaintiff would be exercising reasonable care when using a safety step as part of their job as a merchandiser. See also Doubleday v Kelly [2005] NSWCA 151 at [11]; Bitupave Ltd (t/as Boral Asphalt) v Pillinger (2015) 72 MVR 460 at [193]. 11.45 Section 48(3) of the Wrongs Act 1958 (Vic) attempts to give some guidance on the meaning of ‘not insignificant’. It states: (3) For the purposes of sub-section (1)(b) — (a) insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and (b) risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.

Reasonable Response to the Risk 11.46 If the risk was foreseeable and was not insignificant, it must be determined whether a reasonable person would have taken the precautions in the circumstances. To determine this, reference is made to the calculus of negligence, that is, how a reasonable person in the position of the defendant would have responded to the risk. The common law position is summarised in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–8; 29 ALR 217 at 221,

where Mason J identified several factors that had been identified by the courts for consideration in the determination of breach of the standard of care in a particular case: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.

11.47 If the defendant has exercised reasonable care they will not be in breach of their duty. Reasonable care, however, does not require the complete elimination of all risks: Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 at [49]. The defendant’s conduct must be reasonable in light of the identified risk: Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 at [59]. [page 262] 11.48 When assessing whether the defendant responded reasonably to the risk, it must not be done with the benefit of hindsight: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [18]. This was emphasised by Hayne J in Mulligan v Coffs Harbour City Council (2005) 233 CLR 486; 221 ALR 764 at [50]: … it is necessary to ask first, whether the risk of injury of the kind sustained by the plaintiff was reasonably foreseeable and secondly, what the reasonable person would have done in response to that risk. Although the judgment about what would have been the reasonable response to the risk must be made after the event, the inquiry is directed to identifying what the reasonable response would have been by a person looking forward at the prospect of the risk of injury. That must be assessed having regard to the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action and any other

conflicting responsibilities the alleged tortfeasor may have. And because the inquiry is prospective, there is no basis for assuming that the only risk to be considered by the reasonable person is the particular kind of risk that came to pass at the place and in the way it did.

See also New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [57], where it was stated that the ‘inquiry requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury’. 11.49 The civil liability legislation in all Australian jurisdictions, except the Northern Territory, has restated this calculus of negligence. For example, s 9(2) of the Civil Liability Act 2003 (Qld) states: In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things) —

(a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. See also Civil Law (Wrongs) Act 2002 (ACT) s 43(2); Civil Liability Act 2002 (NSW) s 5B(2); Civil Liability Act 1936 (SA) s 32(2); Civil Liability Act 2002 (Tas) s 11(2); Wrongs Act 1958 (Vic) s 48(2); Civil Liability Act 2002 (WA) s 5B(2). There is no equivalent in the Northern Territory legislation. 11.50 Other ‘relevant things’ that a court may take into account may include: customary standards; professional standards; statutory standards; and anticipation. Not every one of these factors will be relevant in every case, but the relevant factors are weighed against each other in order to determine what a reasonable person in the position of the plaintiff would have done.

[page 263]

Probability that harm would occur if care not taken 11.51 In assessing the probability that the harm would occur if care was not taken, it must be kept in mind that just because a risk is foreseeable it is not necessarily probable. A risk that is probable may mean that the defendant needs to take greater care. However, if the probability is very low, it may be that a reasonable person would not take any precautions at all. For example, in Bolton v Stone [1951] AC 850, the plaintiff was hit by a cricket ball as she stood in front of her house. The ball came from the cricket ground across the road which was fenced. The evidence was that it was an exceptional hit that caused the ball to leave the grounds; in 30 years, balls had rarely been hit out. Another neighbour gave evidence that balls had come onto his premises five or six times in previous years. The court held that the duty of care had not been breached. The probability of a ball causing injury was so slight that a reasonable person would not think taking any further precautions other than the fence would be required. In University of Wollongong v Mitchell (2003) Aust Torts Reports ¶81-708, the plaintiff was injured when she sat down on a seat in a theatre that had retracted. Giles JA referred to the frequency of such incidents (at [34]): There were 438 seats in the theatre, all tip up seats. The seats had been installed in 1990, and apart from the respondent’s injury there have been no reports of incidents to the appellant. Identical seats had been installed in the Hoyts Cinemas chain in 1989–90. There were 10,604 seats. The calculated usage of each seat was 1,490,074 times. There had only been one report of injury.

However, in Jandson Pty Ltd v Welsh [2008] NSWCA 317, the lack of evidence of any previous injury in relation to steps in a display home did not mean that the risk was not foreseeable and that the defendant occupier should have taken reasonable steps to prevent injury. In Romeo v Conservation Commission (NT) (1998) 192 CLR 431; 151 ALR 263 at [128], Kirby J stated, ‘an occupier is not entitled to ignore safeguards against dangers because of

the absence of past mishaps, it is equally true that years of experience without accidents may tend to confirm an occupier’s assessment that the risks of harm were negligible’. 11.52 In considering the probability, the focus is on the probability of the harm — not the conduct that leads to the harm. In Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761, the respondent was injured when he dived off a bridge into a channel. The evidence was that, for many years, children and adults had been seen jumping and diving from the bridge. However, until the respondent was injured there had been no accidents. The respondent knew that the water level varied and, due to tidal action, the course of the channel altered. The New South Wales Court of Appeal referred to the ‘startling frequency’ of ‘large numbers’ of people that did jump and dive from the bridge: Great Lakes Shire Council v Dederer; Roads and Traffic Authority of New South Wales v Dederer (2006) Aust Torts Reports ¶81-860 at [214] per Ipp JA. However, the High Court held that the Appeal Court had focused on the probability of the conduct, not the risk. Gummow J stated (at [61]): Such a characterisation incorrectly focused attention on the frequency of an antecedent course of conduct, namely jumping and diving, and not on the probability of the risk of injury occurring

[page 264] as a result of that conduct, namely impact in shallow water. As Lord Porter observed in Bolton v Stone, “in order that the act may be negligent there must not only be a reasonable possibility of its happening but also of injury being caused” [emphasis added] [[1951] AC 850 at 858; [1951] 1 All ER 1078 at 1080–1]. In the present case, the frequency of jumping and diving was only startling if one ignored the fact that no one was injured until Mr Dederer’s unfortunate accident. Far from being a risk with a high probability of occurrence, the probability was in truth very low, and this fact was masked by the Court of Appeal’s characterisation of the relevant risk.

Likely seriousness of the harm

11.53 For the likely seriousness of the harm, often referred to as magnitude or gravity, the courts assess the seriousness of the foreseeable potential injury. The greater the possible harm, the greater precautions may be expected from the reasonable person. 11.54 The fact that the magnitude of the harm is very serious does not equate to a breach of duty. It is merely one of the factors to be taken into account. This was pointed out in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761 at [274], where Callinan J stated: As to “magnitude”, I accept that diving from a height of 8–10 m was itself a risky activity. It was for this reason that it was discouraged by police and officials, banned and the subject of the pictograph signs. But even so, and despite flagrant defiance of the ban, not one out of the many who had dived in the 40 or so years that had elapsed since the construction of the bridge had been injured, so far as anyone could recall, let alone severely injured. This is to say that the risk, although undisputedly present, had a very low degree of probability of realisation. And although the first respondent’s injuries were grave, that is, of great magnitude, seemingly minor mishaps can sometimes cause grave injuries.

11.55 In assessing the seriousness of the harm, the courts may consider the possibility of a greater injury to the plaintiff due to some characteristic of the plaintiff. Paris v Stepney Borough Council [1951] AC 367; 1 All ER 42 involved the special susceptibility of the particular plaintiff who was a one-eyed worker who would become totally blind if his remaining good eye was injured. Lord Morton of Henryton stated: In considering generally the precautions which an employer ought to take for the protection of his workmen, it must, in my view, be right to take into account … the likelihood of an accident happening and the gravity of the consequences … [I]f A and B, who are engaged on the same work, run precisely the same risk of an accident happening, but if the results of an accident will be more serious to A than to B, precautions which are adequate in the case of B may not be adequate in the case of A, and it is the duty of the employer to take such additional precautions for the safety of A as may be reasonable. The duty to take reasonable precautions against injury is one which is owed by the employer to every individual workman: at AC 385–6; All ER 51.

11.56 The time for assessing the risk in terms of probability and seriousness is the time of the injury: Roe v Minister of Health [1954] 2 QB 66.

This may be particularly difficult to assess in an area of evolving knowledge, especially in technical areas, including medicine. [page 265] In Roe v Minister of Health, the two plaintiffs went into hospital for a minor operation. They were each given the spinal anaesthetic nupercaine, contained in sealed glass ampoules which were stored in a solution of phenol to sterilise them. After the operation, the plaintiffs were found to have spastic paraplegia caused by the presence of phenol in the anaesthetic injected into each spine. The phenol had contaminated the nupercaine through invisible cracks in the glass ampoules and, as a result, the plaintiffs were paralysed from the waist down. They sued the anaesthetist, alleging that he had been negligent by failing to take steps to ensure that the nupercaine was contamination-free. Both the trial judge and the Court of Appeal held that the defendant had not been negligent according to the standard of medical knowledge in 1947, the time of the accident. At that date, no one knew of the possibility of contamination of nupercaine by phenol in this way. Denning LJ commented (at 83–4): [The anaesthetist] sought to escape the danger of infection by disinfecting the ampoule. In escaping that known danger he unfortunately ran into another danger. He did not know that there could be undetectable cracks, but it was not negligent for him not to know it at that time. We must not look at the 1947 accident with 1954 spectacles.

In H v Royal Alexandra Hospital for Children (1990) Aust Torts Reports ¶81-000, the plaintiff had been diagnosed as a haemophiliac in 1980, when he was six. He was given blood transfusions at the defendant hospital in March 1982 and September 1983. One of those transfusions infected the plaintiff with the human immunodeficiency virus (HIV). After being infected with HIV, the plaintiff contracted AIDS and sued the hospital (among others), alleging that it had been negligent by not adequately screening for HIV in the samples of blood it received from the blood bank.

The first case of AIDS in Australia was not diagnosed until April 1983. At first, it was not understood that HIV could be contracted from blood transfusions. A test for detecting the HIV virus in blood was not developed in the United States until late 1984, and licensed for general use only in May 1985. The Supreme Court of New South Wales held that the defendant hospital had not been negligent in respect of the transfusion given in March 1982, but it had been negligent in respect of the transfusion given in September 1983. Badgery-Parker J held in relation to the earlier transfusion: It is therefore quite impossible for the plaintiff to succeed on the basis that in and before March 1982 [the defendant] ought to have foreseen and guarded against the risk that the plaintiff might, through Factor VIII therapy, become infected with, specifically, the agent causing the outbreak of immune deficiency illnesses in homosexuals. The most that the evidence establishes is that there was in March 1982 … a foreseeable risk that recipients of blood products would become infected with blood borne viruses as yet unknown and unidentified: at 67,528.

In relation to the later transfusion, Badgery-Parker J stated (at 67,529): The first Australian case of AIDS was published in April 1983. I have no difficulty in concluding that reasonably informed physicians, scientists and blood transfusion services in this country ought to have been well aware by at latest April 1983 that there was a real risk that among the unknown and unidentified sources of infection which blood and blood products had the capacity to carry must be numbered whatever agent was responsible for the production of AIDS.

[page 266]

Burden of taking precautions to avoid the harm 11.57 The presence or absence of practical precautions available to the defendant is a significant factor in determining breach of the standard of care and often leads to the most debate. The plaintiff must establish what precautions were available to the defendant and prove that by failing to take such precautions the defendant failed to act reasonably. In considering precautions it must be questioned whether the precaution was available at the time of the breach and whether the precaution is reasonable.

11.58 Judged as at time of breach The precautions must be available at the time of the breach and therefore the precautions must be assessed as at the time of the alleged breach of duty, not with hindsight: Thornton v Sweeney (2011) 59 MVR 155 at [131]; Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR 711 at [126]; Neindorf v Junkovic (2005) 222 ALR 631 at [93]. 11.59 Reasonable precaution The reasonableness of the precaution will be assessed in light of all of the circumstances. For example, if the risk of injury is slight then instruction may be sufficient: House v Forestry Tasmania (1995) Aust Torts Reports ¶81-331 (involving pruning trees). Erecting signs to warn of danger may be considered a reasonable precaution. In Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761, the respondent argued that the sign, a pictograph depicting diving from the bridge as prohibited, was not sufficient as it did not actually warn of any danger. The trial judge, Dunford J, agreed, holding that a sign that brought the danger to the attention of the respondent would ‘probably have inhibited him from diving, particularly if it inhibited large numbers of others from doing likewise and so tended to break the culture or practice which had developed’: Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792 at [70]. Ipp JA of the Court of Appeal stated that the signs were ‘in a word, useless’ and that the appellant should: … have ascertained whether the pictograph signs were proving effective. On that basis, the [appellant] ought to have known that they were not: Great Lakes Shire Council v Dederer; Roads and Traffic Authority of New South Wales v Dederer (2006) Aust Torts Reports ¶81-860 at [219] and [220].

The High Court, however disagreed, stating: The trial judge and the majority in the Court of Appeal impermissibly reasoned that if a warning is given, and if the conduct against which that warning is directed continues notwithstanding the warning, then the party who gave the warning is shown to have been negligent by reason of the warning having failed. Quite apart from its inconsistency with the scope of the [appellant’s] duty of care, this reasoning erroneously short-circuits the inquiry into breach of duty that is required by Shirt … Even reasonable warnings can “fail”, but the question is always the reasonableness of the

warning, not its failure: (2007) 234 CLR 330; 238 ALR 761 at [55]–[56].

11.60 In considering whether the precaution is reasonable, note is taken of the burden of taking the precaution. The court has regard to the expense, difficulty and convenience of using them: Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202; Australian Iron & Steel Ltd [page 267] v Krstevski (1973) 128 CLR 666; 2 ALR 45; Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217. In Romeo v Conservation Commission (NT) (1998) 192 CLR 431; 151 ALR 263, the plaintiff fell over a cliff in a reserve that was managed by the defendant. The plaintiff argued that the cliff should have been fenced and signed. The majority of the court held that a reasonable authority would not have fenced the two kilometres of cliff, evaluating the expense in light of the fact that the risk was of such low probability due to the fact that the cliffs were an obvious danger. See also Vairy v Wyong Shire Council (2005) 223 CLR 422; 221 ALR at [91]. 11.61 The inability of the defendant to afford the precautions does not render the precautions unreasonable: PQ v Australian Red Cross Society [1992] 1 VR 19. However, it may be relevant if the defendant did not create the risk but is under a duty to take precautions in relation to the risk. This was illustrated in Goldman v Hargrave [1967] 1 AC 645, where a gum tree on the defendant’s property was struck by lightning and was ignited. It was impossible to put the fire out while the tree was standing because of the height of the fire. The defendant cleared a space around the tree and dampened the surrounding area with water. The next day a tree-feller was sent to the defendant’s land by the district fire control officer by which time the tree was burning fiercely. The tree was cut down, but the defendant failed

to take any steps to put the fire out with water, as he took the view that the best method of extinguishing a fire of this kind was to let it burn itself out. Three days after the tree had been cut down, a strong wind blew up and the temperature rose to about 40°C. The fire in the tree reignited and spread to neighbouring land, causing extensive damage. The neighbours sued the defendant, alleging that he had been negligent in failing to take steps to put out the fire after the tree had been felled. On appeal from the High Court, the Privy Council held that the defendant had been negligent. On the standard of care expected of the defendant in these circumstances, Lord Wilberforce (delivering the opinion of the Privy Council) stated (at 663): [T]he law must take account of the fact that the occupier … has, ex hypothesi, had this hazard/thrust upon him through no seeking or fault of his own. His interest and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour’s interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable and unjust. One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it.

11.62 Failing to warn is a common allegation of breach, and is arguably an easy and inexpensive precaution to give a warning of a risk: Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; 238 ALR 761. However, sometimes the risk is an obvious risk and the court may find that a reasonable person would not think it necessary to give a warning. In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 at [159], the majority of the High Court held that there was no breach in the standard of care by failing to warn the players of indoor cricket of the increased risk of eye injury as it was an obvious risk. 11.63 Legislation has clarified the precaution of giving warnings in particular situations, such as where the risk is obvious. The civil liability legislation provides that the defendant

[page 268] does not owe a duty to a plaintiff to warn of an obvious risk. ‘Obvious risk’ is defined as a risk that, in the circumstances, would have been obvious to a reasonable person, including risks that are patent or a matter of common knowledge: Civil Liability Act 2002 (NSW) ss 5F, 5H; Civil Liability Act 2003 (Qld) ss 13, 15; Civil Liability Act 1936 (SA) ss 36, 38; Civil Liability Act 2002 (Tas) ss 15, 17; Civil Liability Act 2002 (WA) ss 5M, 5O. There is no equivalent provision in the Australian Capital Territory, Northern Territory or Victorian legislation. If the plaintiff argues failure to warn as a negligent act, the defendant may establish the risk in question was an obvious risk and may avoid liability: Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81–955 at [83]. The test to determine whether a risk is an obvious risk is an objective one, asking whether the risk was obvious to a reasonable person in the position of the plaintiff: Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191 at [61]; Collins v Clarence Valley Council [2015] NSWCA 263. In Schultz v McCormack [2015] NSWCA 330 at [85], it was suggested that as the provision ‘cuts across of the scope of the duty of care’ it is appropriate to consider after concluding there is a duty of care and that the scope of that duty includes the relevant risk of harm. See also Collins v Clarence Valley Council [2015] NSWCA 263 at [120]–[122] and Chapter 13. 11.64 Other considerations in respect of precautions In considering the precautions that a reasonable person would take, the risk of injury is not to be considered in isolation; it must be considered as part of all similar risks of harm that must be avoided: Civil Law (Wrongs) Act 2002 (ACT) s 44(a); Civil Liability Act 2002 (NSW) s 5C(a); Civil Liability Act 2003 (Qld) s 10(a); Wrongs Act 1958 (Vic) s 49(a). See also Romeo v Conservation Commission (NT) (1998) 192 CLR 431; 151 ALR 263.

11.65 The fact that the risk could have been avoided by doing something in a different way does not in itself give rise to liability: Civil Law (Wrongs) Act 2002 (ACT) s 44(b); Civil Liability Act 2002 (NSW) s 5C(b); Civil Liability Act 2003 (Qld) s 10(b); Civil Liability Act 2002 (Tas) s 12(a); Wrongs Act 1958 (Vic) s 49(b). The plaintiff must establish that the method adopted by the defendant was unreasonable in the circumstances and that a more reasonable method existed. In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; 194 ALR 337, the plaintiff contracted hepatitis A after consuming contaminated oysters. It was alleged that the distributor of the oysters had been negligent by either not withholding the oysters from sale or not giving a warning of the risk of contamination. It was acknowledged that a duty of care was owed to ensure that the oysters were safe for human consumption. The High Court had to consider how a reasonable producer would respond to the foreseeable risk of contamination. In this case, the contamination occurred due to rain flushing heavy concentrates of faecal matter into the lake where the oysters were grown. The plaintiff argued that the distributor should not have harvested the oysters until a sufficient period had passed so that the risk of contamination was minimal. This would have required the source of the pollution to be identified, a task that was beyond the power of the distributor. McHugh J stated (at [110]–[111]): [page 269] The notion that the Barclay companies should have gone to the expense of doing these things and closing down its business in the meantime sounds like a counsel of perfection rather than a reasonable response to a risk of injury that had a low degree of probability of occurring. … it had only two realistic alternatives to what it did. It could have closed down indefinitely until the “sufficient period” elapsed or it could give a warning notice. Given the very low degree of probability of the risk occurring, it was not unreasonable for the Barclay companies to resume

harvesting when they did. No doubt the magnitude of the risk, if it eventuated, was high. But so are the magnitudes of many risks that reasonable people run because the alternative is too costly or too inconvenient. The magnitude of the risk of being involved in a motor car accident is very high, and the risk could be minimised, if not eliminated, by no car ever travelling at more than 10 km per hour. But few would contend that travelling at 10 km per hour was the only reasonable response to the risk of a motor car accident.

It was held by the High Court that there had been no breach of the standard of care. See also Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; 201 ALR 139 at [36]. In Lynch v Shooters Saloon Bar Pty Ltd [2006] QCA 326, the appellant was injured when he stepped over rope that was being used as a barrier outside a nightclub. Evidence was that there was a safer alternative of a belt as is commonly used in airports. The Court of Appeal upheld the findings of the trial judge, holding that the respondent was not in breach of its duty of care by using the rope barrier instead of the belt system. Referring to the decision of the trial judge, McMurdo P stated (at [13]–[14]): The trial judge rightly observed that the expert’s evidence did not contain a persuasive or detailed comparison of the risks associated with these two alternatives. He said that it was difficult to conclude that the suggested alternative “would have presented a significantly lower overall risk of injury”. He was unpersuaded that the alternative was of such a low overall risk as to require a reasonable person in the defendant’s position to have used it. He accepted that the alternative system was no more expensive. And clearly it was an alternative which was widely used. But the appellant simply failed to prove that it was such a preferable option that any reasonable person must have used it. I see no error in that conclusion. The trial judge was not compelled to find negligence by the evidence of a witness whose opinion was that the alternative had some advantage over this barrier. He did not have to accept that evidence, and indeed it offered an opinion on a question which required no specialised knowledge. Some case could be made for each system against the other. But the defendant was not negligent for using this one. The question is not whether the appellant’s accident might have been avoided with the use of the other system, because the respondent’s duty of care required it to act reasonably to avoid the risk of injury to all persons using this area. A reasonable occupier might have thought that there was not more risk overall from a barrier of these ropes.

11.66 If a defendant introduces precautions after an accident, evidence of the introduction is admissible and often leads to a conclusion that such precautions were practicable prior to the accident: Jellie v Commonwealth [1959] VR 72; Nelson v John Lysaght (Aust) Ltd (1975) 132 CLR 201; 5 ALR

289; Ryan v Electricity Trust of South Australia (No 1) (1987) 47 SASR 220. However, subsequent risk abatement procedures do not necessarily amount to an admission that the defendant had breached the duty of care earlier: Civil Law (Wrongs) Act 2002 (ACT) s 44(c); Civil Liability Act 2002 (NSW) s 5C(c); Civil Liability Act 2003 (Qld) s 10(c); Civil Liability Act 2002 (Tas) s 12(b); Wrongs Act 1958 (Vic) s 49(c). See also [page 270] Ryan v Electricity Trust of South Australia (No 1); Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202.

Social utility of risk-creating activity 11.67 The social utility of a defendant’s conduct, or justifiability, is relevant in determining whether the standard has been breached: Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333 (an ambulance during wartime); Watt v Hertfordshire County Council [1954] 2 All ER 368 (the standard of equipment supplied to fire officers); Marshall v Osmond [1983] QB 1034 (a police officer seeking to make an arrest). In Watt v Hertfordshire County Council, the English Court of Appeal held that the end justified the means without breach of duty when a vehicle was used by a fireman to transport an unsecured heavy jack less than 300 metres to free a woman trapped under a heavy vehicle. One of the firemen was injured when the jack fell on him. The risk involved was not so great as to prohibit the attempt to save a life. The position is summed up in the words of Denning LJ (at 371): It is well settled that in measuring due care you must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this: you must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency there could be no doubt that the servant would succeed. But

the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk.

In Commonwealth v Winter (1993) 19 MVR 215, a police sergeant setting up a roadblock to stop a motorcyclist seeking to evade police capture was held liable to the motorcyclist for his inherently hazardous manoeuvre, notwithstanding the proper objective of apprehending a dangerous vehicle. In Kretschmar v Queensland (1989) Aust Torts Reports ¶80-272, the court held that there was no breach of duty in the adequately supervised game with handicapped children and that the utility of the game in developing skills and team spirit outweighed the risk of injury to the participants. 11.68 Courts appear to be broadening the concept of social utility since the civil liability legislation: Southern Properties (WA) Pty Ltd v Executive Director of Department of Conservation and Land Management (2012) 42 WAR 287 at [257]. In Harris v Bulldogs Rugby League Club Ltd (2006) Aust Torts Reports ¶81-838 at [60], the New South Wales Court of Appeal did not record any disagreement with the trial judge’s observation that ‘attending football matches serves a useful social purpose for a considerable number of people’. In Bader v Jelic [2011] NSWCA 255, the respondent was injured when he stumbled and fell through a floor to ceiling glass plate window next to a front door. The court found that ‘it can be said that there was some “social utility of the activity that creates the risk of harm” as having the window, and the view beyond, unobscured by a blind would no doubt usually be preferable from an aesthetic point of view to a cloaking of the window’: at [40]. In Wilson v Nilepac Pty Ltd (t/as Vision Personal Training) (Crows Nest)) [2011] NSWCA 63, the plaintiff, a 40-year-old barrister seeking to get fit, was injured when exercising with a medicine ball under the supervision of his personal trainer. The trial judge accepted that [page 271]

physical exercise had some social utility and that it could be assumed that it was reasonable to take fewer precautions when the activity involved social utility. The Court of Appeal disagreed, stating (at [130]): There is nothing in the Ipp Report or in the text of the [civil liability] legislation … which suggests that the standard of reasonable care requires the taking of fewer precautions against an acknowledged risk of harm simply because the activity which creates that risk has some social utility. There may be cases where the social utility of the activity is sufficiently high as to justify, notwithstanding other factors, a finding that a reasonable person would not have taken the necessary precautions against the identified risk of harm. Rescuing people from the impact of floods, cyclones and earthquakes were said to be examples that might attract such a finding. But in my view the present case does not fall into that or any similar category.

See also Hill v Richards [2011] NSWCA 291 at [50], where sheep shearing was linked briefly to social utility.

Customary standards 11.69 Courts will consider evidence of what is the customary standard used for the activity in question. Usual practice adopted by those engaged in the same activity as the defendant will not itself determine the standard of care, since the usual practice may fall short of the objective standard required by law: Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145. As McHugh J stated in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [34], ‘[c]ompliance with common practice is powerful, but not decisive, evidence that the defendant did not act negligently’. In Mercer v Commissioner for Road Transport and Tramways (NSW), the defendant’s tram crashed when the driver collapsed at the controls, resulting in the plaintiff being injured. The plaintiff argued that the defendant had acted unreasonably in failing to guard against the danger of a driver’s collapse by installing a device known as a ‘dead man’s handle’ to cut off the motor automatically. The defendant adduced expert evidence that such a device was not in use in any other tramway system. Nevertheless, the High Court held,

by majority, that the defendant was liable in negligence for failing to fit such a device. Rich, Evatt and McTiernan JJ stated (at 593–4): … it was suggested that no jury should be permitted to say that the ordinary methods adopted by those in the same business as the defendant can constitute negligence on the defendant’s part. But, as had been clearly pointed out, “the general practice itself may not conform to the standard of care required of a reasonably prudent man. In such a case it is not a good defence that the defendant acted in accordance with the general practice …”. Accordingly, reference to present practice in other tram systems is necessarily of less significance.

11.70 Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 also demonstrates how customary standards may not be accepted by the court as reasonable. The plaintiffs were shipyard workers who had suffered progressive hearing loss from working in the defendants’ shipyards for over 40 years. The defendants did not provide the plaintiffs with hearing protection until around the mid-1970s. The evidence established that it was [page 272] not common practice in the shipbuilding industry to provide workers with such hearing protection until around that time. Nevertheless, Mustill J held that a reasonable employer in the defendants’ position would have provided hearing protection from at least 1963, and possibly before, because, by 1963, the reasonable shipyard employer would have been aware that exposure to noise could cause progressive hearing loss. In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145, the evidence was that it was not the custom to wear a helmet for indoor cricket and the rules of the game discouraged the wearing of helmets. This was taken into account by the High Court when assessing whether the respondent was in breach of its duty for failing to provide helmets to players.

Professional standards 11.71

Under the common law, evidence of standards within a particular

profession is not conclusive as to the relevant standard in an action of negligence: Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540; Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625; Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 at 593, 601. Therefore, the fact that the defendant conformed to usual professional conduct does not necessarily mean they had acted in accordance with the standard of care required by the law: Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540 at [21]. However, evidence of accepted professional practice is relevant. In Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577 at [7], Gleeson CJ held that although the standard of care was a matter for the courts to decide and not the medical profession itself, ‘[i]n many cases, professional practice and opinion will be the primary, and in some cases it may be the only, basis upon which a court may reasonably act’. See also, Hookey v Peterno (2009) 22 VR 362 at [108], where the court stated: … in Australia the standard of care to be observed by a skilled professional is that of the ordinary skilled person exercising and professing to have that special skill. But that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession; even though, in the area of diagnosis and treatment, it will often have an ‘influential, [often a decisive], role to play’: Rogers v Whitaker (1992) 175 CLR 479 at 489; 109 ALR 625 at 633.

11.72 The civil liability legislation in some jurisdictions allows evidence of accepted practice to prove that the standard of care owed by the professional has not been breached (the professional standards provisions). Section 22(1) of the Civil Liability Act 2003 (Qld) provides: A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in such a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent practice.

See also Civil Liability Act 2002 (NSW) s 5O; Civil Liability Act 2003 (Qld) s 22; Civil Liability Act 1936 (SA) s 42; Civil Liability Act 2002 (Tas) s 22; Wrongs Act 1958 (Vic) s 59.

[page 273] There is no equivalent in the Australian Capital Territory and the Northern Territory. In Western Australia there is no equivalent, but s 5PB of the Civil Liability Act 2002 (WA) provides that a health professional is not negligent if they acted in accordance with accepted competent professional practice. As these are ‘no breach of duty’ provisions, they are considered to be defences to a claim in negligence (Dobler v Halverson (2007) 70 NSWLR 151; Mules v Ferguson [2015] QCA 5) and are considered in more detail in Chapter 13. However, a plaintiff may still provide evidence of professional standards, particularly if professional opinion as to competent practice is divided. In such circumstances, a plaintiff would provide evidence that the defendant failed to meet the professional standards and the defendant would provide their evidence that their conduct met professional standards as a defence under the professional standards provision. 11.73 The professional standards provisions are similar to the Bolam principle. In Bolam v Friern Barnet Hospital Management Committee [1957] 2 All ER 118; 1 WLR 582, the English court held that a doctor will not be held negligent if he or she acts in accordance with a practice accepted at the time as reasonable by a responsible body of medical opinion, even though other doctors would adopt a different practice. Therefore, in England, professional standards in medical negligence cases were evidence of the standard to be applied by the court. In Bolitho v City and Hackney Health Authority [1998] AC 232 at 243; [1997] 4 All ER 771 at 779, it was held by the House of Lords that the Bolam principle applies unless ‘in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis’. The Australian High Court, however, rejected the application of the Bolam principle in Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625. 11.74

Advice and warnings The professional standards provisions in the

civil liability legislation do not apply to liability arising in connection with the giving, or failing to give, a warning, advice or information: Civil Liability Act 2002 (NSW) s 5P (risk of death or injury to a person); Civil Liability Act 2003 (Qld) s 22(5); Civil Liability Act 2002 (Tas) s 22(5); Wrongs Act 1958 (Vic) s 60. The exceptions contained in the New South Wales and South Australian legislation are particularly directed at warning, advice and information in respect of personal injury or death by a professional. Therefore, medical or health professionals in providing their services cannot avoid liability by establishing that they had acted in a manner that was accepted as competent practice at the time if the alleged breach of duty is a failure to warn of a risk. 11.75 The civil liability legislation of Queensland and Tasmania specifically provide for doctors and the duty to warn of risks. Under the legislation, the duty to inform consists of two parts — the proactive and reactive duty. The proactive duty to inform is the duty to inform a patient of material risks; however, there are no guidelines as to what information should be given by the medical practitioner in order to avoid liability in negligence. The reactive duty to inform is that a medical practitioner must take reasonable care to provide information of inherent risks of the treatment that the practitioner knows, or ought to know, the patient would attach significance to. This would mean that a patient should be informed of risks that would be obvious to a reasonable person. [page 274] Section 21(1) of the Civil Liability Act 2003 (Qld) states: A doctor does not breach a duty owed to a patient to warn of risk before the patient undergoes any medical treatment (or at the time of being given medical advice) that will involve a risk of personal injury to the patient, unless the doctor at that time fails to give or arrange to be given to the patient the following information about the risk — (a) information that a reasonable person in the patient’s position would, in the circumstances, require to enable the person to make a reasonably informed decision

about whether to undergo the treatment or follow the advice; (b) information that the doctor knows or ought reasonably to know the patient wants to be given before making the decision about whether to undergo the treatment or follow the advice.

See s 21 of the Civil Liability Act 2002 (Tas). These provisions leave the decision of Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 intact; it is for the court to decide whether advice should have been given to the patient or not. 11.76 Although the Western Australian legislation provides a Bolam-type principle in respect of health professionals (see 13.89), there is no equivalent to the Queensland and Tasmanian provisions concerning a doctor’s duty to warn of a risk. However, s 5PB(2) of the Civil Liability Act 2002 (WA) provides that s 5PB(1), which provides that there is no liability if the health professional acts in accordance with widely accepted competent practice, does not apply in relation to informing of a risk associated with proposed treatment for a patient or a foetus being carried by a pregnant patient, or in relation to a proposed procedure for the diagnosis of a patient or the foetus of a pregnant patient. 11.77 The Queensland and Tasmanian provisions merely confirm the High Court decision of Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625. In Rogers v Whitaker, the court had to consider whether there was a breach of the duty of care by failing to warn the plaintiff of risks associated with surgery. In that case, the plaintiff lost the sight of her right eye when aged nine. When she was 47 years old, the defendant ophthalmic surgeon operated on the eye essentially for cosmetic reasons, although there was a chance that sight could be restored to the eye. The plaintiff asked the defendant a number of questions about possible complications affecting the eye being operated upon but she did not ask about complications to her other eye. There was a small risk (about one in 14,000) of sympathetic ophthalmia causing blindness in the plaintiff’s good left eye. The defendant surgeon was aware of the risk but he did not mention it to the plaintiff. As a result of the operation, the

plaintiff suffered sympathetic ophthalmia and was blinded in her good left eye. She sued the defendant, alleging that he had been negligent in failing to warn her of the risk of blindness. On the evidence, there was a body of medical opinion to the effect that an ophthalmic surgeon should only advise a patient of the risk of sympathetic ophthalmia if the patient specifically asked about the possibility of a risk to the good eye as a result of the operation on the bad eye. The High Court held that while the Bolam test might be appropriate in cases of treatment, it should not be applied in cases involving advice or information from doctor to patient. The majority (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ) commented (at CLR 486–7; ALR 630–1): [page 275] … that, even if a patient asks a direct question about the possible risks or complications, the making of that inquiry would logically be of little or no significance; medical opinion determines whether the risk should or should not be disclosed and the express desire of a particular patient for information or advice does not alter that opinion or the legal significance of that opinion … The existence of the shortcoming suggests that an acceptable approach in point of principle should recognise and attach significance to the relevance of the patient’s questions … … [I]n the field of nondisclosure or risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to ‘the paramount consideration that a person is entitled to make his own decisions about his life’ [quoting F v R (1983) 33 SASR 189 at 193].

Where information or advice about the risks in a proposed medical procedure is concerned, the majority held (at CLR 490; ALR 633–4): The law should recognise that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.

The plaintiff’s interest in the risk to her bad eye made it clear that she would be even more concerned about possible complications affecting her good eye. The High Court held that the defendant should have been aware that the plaintiff would have regarded the risk of sympathetic ophthalmia as material, and should have advised her of that risk, even though she did not specifically ask about it. If a doctor fails to provide advice as to a material risk of proposed treatment, they will be in breach of their duty. See also Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577; Wallace v Kam (2013) 250 CLR 375; 297 ALR 383.

Statutory standards 11.78 Statutory provisions sometimes prescribe standards for activities and, in certain limited cases, a breach of that statutory standard may give rise to a separate cause of action in tort for breach of statutory duty: see Chapter 18. However, evidence of a breach of a statutory standard is not conclusive of a breach of the standard of care in negligence, but may provide evidence of breach: Tucker v McCann [1948] VLR 222; Sibley v Kais (1967) 118 CLR 424 at 427. For example, it may not be sufficient for a plaintiff to show that the defendant was in breach of road traffic regulations to establish breach of duty in negligence as it may be negligent for a driver to rely on the performance by others of their statutory duties: Sibley v Kais (1967) 118 CLR 424; Versic v Conners (1969) 90 WN (NSW) (Pt 1) 331; see also Anderson v Enfield City Corporation (1983) 34 SASR 472, where failure to comply with regulations was accepted as evidence of negligence on the part of a manufacturer. In Tucker v McCann [1948] VLR 222, the plaintiff pillion passenger on a motorcycle sued the defendant driver of a motor car. The plaintiff was injured when the defendant’s car collided with the motorcycle at a traffic intersection. The plaintiff alleged that the defendant had breached the road traffic regulations by approaching the intersection too quickly. At first instance,

[page 276] the jury found that the defendant had not been negligent. The plaintiff appealed against the verdict and argued that the defendant must have been negligent if he had breached the road traffic regulations. By a majority of 2:1, the Full Court of the Supreme Court of Victoria upheld the jury’s verdict. Herring CJ (with whom Lowe J agreed) stated the principle as follows: Now it is the duty of everyone to know and to obey the law, and so to know and obey the precautions laid down in the regulations. And prima facie a reasonably prudent man will take them. And whenever a person is under a duty to someone else to take care, his failure to take those precautions or any of them is a matter that must be taken into account in determining the question whether he has or has not exercised due care. But this question is one of fact to be determined in the light of all the circumstances, and a breach of the regulations is only one of such circumstances. Such a breach must, therefore, be considered along with all the facts of the case, it cannot be considered in vacuo as it were. It is thus no more than a piece of evidence of want of reasonable care … Circumstances may be conceived in which obedience to the regulations may as a matter of prudence be the very worst course to take, for example, where to disobey may avoid injury or save life. In other words, it is for the jury to say whether the precaution laid down by the regulation which the defendant failed to take, was one that in all the circumstances of the case a reasonably prudent man would have taken. It is for them to decide for themselves as a matter of fact the standard of care that was appropriate in the circumstances: at 225.

In Fatur v IC Formwork Services Pty Ltd (2000) 155 FLR 70, the defendant employer was in breach of the Scaffolding and Lifts Regulations 1912 (NSW). Miles CJ held (at [19]): Breach of a statutory provision prescribing a standard of safety is prima facie evidence of a failure to take a step which would minimise the risk of harm to a person likely to be injured as a result of such failure. In this sense the failure to comply with the statutory standard can be pleaded as a particular of negligence as appears to have been done in the plaintiff’s statement of claim. However, such a breach does not constitute negligence unless it involves conduct which can be condemned as unreasonable (O’Connor v SP Bray Ltd (1937) 56 CLR 464).

See also Francis v Lewis [2003] NSWCA 152 (a plaintiff injured on stairs that complied with statutory standards but defendant found liable in negligence); Ridis v Strata Plan 10308 [2005] NSWCA 246 (breach of statutory duty as occupier did not impose liability in negligence).

In Fox v Hack [1984] 1 Qd R 391, the plaintiff injured his back at work while engaged in repetitive lifting of building blocks weighing about 28 kg. He sued his employer, alleging that it had been negligent in failing to provide a reasonably safe system for the moving of the blocks. The industrial award governing the plaintiff’s employment provided that no employee should be required to lift a building block in excess of 45 lb (20.45 kg) without a mechanical aid or assistance from another employee. Carter J (at 393–4) held the common law standard incorporated the industrial award standard: I am satisfied … that such a provision which governs conditions of employment in the building trade is admissible in a case such as this in much the same way as the provisions of the Code laid down by the Standards Association of Australia (SAA) are admissible in civil actions between master and servant. Such provisions are admitted not as ones having statutory force, although some SAA Codes do have, but as evidence of what might be said to be a standard or norm of behaviour reasonably required of an employer when involving his employee in a particular task. In my opinion an industrial award made under the Industrial Conciliation and

[page 277] Arbitration Act 1961–1981 (Qld) may be admitted on the same basis … The terms of the relevant provision is clearly designed as a standard of behaviour to be expected of an employer … The provision outlined in the Award is in my opinion a reasonable one and may be taken to evidence a reasonable standard of care to be expected of an employer in the building trade.

Although Carter J suggested the Standards Association of Australia Code may have similar influence as an industrial award, there are differences between those Code provisions which are given statutory force and those which are not, and only the former should be given persuasive weight and admitted. Such a view was confirmed by the Full Court of the Supreme Court of South Australia in Chicco v Corporation of City of Woodville (1990) Aust Torts Reports ¶81-028. In Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145; 284 ALR 1, it was held that complying with the manufacturing obligations in the Therapeutic Goods Act 1989 (Cth) did not discharge the manufacturer’s common law duty to exercise reasonable care in advising of

risks associated with the pharmaceuticals. The Federal Court held (at [161]) that there was: … nothing unworkable or anomalous about such a manufacturer remaining under an obligation to take reasonable steps to avoid loss or injury to the end user at the same time as being required to comply with the regulatory system for which the [Therapeutic Goods Act 1989 (Cth)] provided. The manufacturer’s obligation is not, in my view, exhausted upon compliance with the statute — no more so than the motorist’s obligation to take care in the driving of his or her vehicle is exhausted upon compliance with road traffic regulations: see Sibley v Kais (1967) 118 CLR 424 at 427; [1968] ALR 158 at 159.

11.79 Even non-binding material may be used as an indication of a standard reasonably required. In Ascic v Westel Cooperative Ltd (1992) Aust Torts Reports ¶81-159, it was held that other industrial awards not binding on the parties could be taken into account. The plaintiff was employed by the defendant as a bottle packer. She had to lift and carry crates of bottles weighing up to 25 kg. Industrial awards governing other kinds of employment specified that female employees should not be required to lift weights of more than 16 kg at any one time, but there was no provision in the award governing the plaintiff’s employment. Citing Fox v Hack [1984] 1 Qd R 391, the trial judge took those other industrial awards into account in determining what the reasonable employer would or would not have required the plaintiff to do, and held the defendant liable in negligence. On appeal, the Full Court of the Supreme Court of Western Australia held that the trial judge was entitled to take into account the weight limits set in other industrial awards, even though they were not binding on the plaintiff and the defendant.

Anticipation 11.80 As a general rule, a defendant may assume that others will take reasonable care of themselves. However, in some circumstances, defendants are required to anticipate negligent, and perhaps even criminal, conduct of others. For example, a train driver (Hale v Victorian Railway Commissioner (1953) 87 CLR 529) or the driver of a vehicle (Sibley v Kais (1967) 118 CLR 424) need not slow down at a level crossing (in the case of a train driver) nor

slow down for vehicles on the left on approaching an intersection (driver of a motor vehicle), [page 278] but each must keep a continuing watch for approaching traffic and slow down or stop if it becomes apparent that it can be anticipated that a car is not giving way. See also Robertson v B H Maclachlan Pty Ltd (1985) 58 ALR 668; 59 ALJR 409. 11.81 It is well established that a person who owes a duty of care to others must take account of the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety and that such persons fall within the foreseeable risk: McLean v Tedman (1984) 155 CLR 306 at 311–12; 56 ALR 359 at 362–3; Bus v Sydney County Council (1989) 167 CLR 78 at 90; 85 ALR 577 at 585; March v Stramare (EMH) Pty Ltd (1991) 171 CLR 506 at 519, 520, 536–7; Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431. It is particularly the case in the relationship of employer and employee that the standard of care expected of the reasonable employer requires the anticipation of negligent conduct on the part of employees. What might be regarded by some as an extreme example is found in McLean v Tedman, where the plaintiff garbage collector was injured when he was struck by a car while he was running across a road carrying a rubbish bin on his shoulder. The work practice adopted by the plaintiff and his fellow employees was for the garbage truck to travel up one side of the road and for the garbage collectors to collect rubbish bins from both sides, running across the road to collect and return the bins on the other side. It would have been safer, but slower, for the truck to have driven up one side of the road, then down the other, as the garbage collectors would not then have been required to run across the road. This preferred practice had been directed by the employer.

The plaintiff sued his employer alleging that it had been negligent in failing to provide its employees with a reasonably safe system of garbage collection. The High Court held that the defendant had negligently failed to provide a safe system of work. Mason, Wilson, Brennan and Dawson JJ held (at CLR 311–12; ALR 362–3): Although running across the road was a means of doing the work which the [plaintiff] and other employees chose or preferred, it was nevertheless a system of work of which … [the defendant] was aware or ought to have been aware. And it was fraught with some degree of risk of injury to employees in some circumstances, especially when an employee was crossing Albany Creek Road when it was dark, as the [plaintiff] was doing on this occasion. The fact that the traffic was very light no doubt lessened the risk of injury, though it may have induced an employee to take less care for his own safety. However, there is simply no basis for saying that the risk of injury was fanciful … or for brushing it aside because it was insignificant. It was a foreseeable and significant risk inherent in the way in which the garbage was collected in Albany Creek Road arising from the possibility of negligence on the part of motorists and negligence or inadvertence on the part of the employee. In such a situation it is not an acceptable answer to assert that an employer has no control over an employee’s negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. … This was acknowledged even in the days when contributory negligence was a common law defence … The employer is not exempt from the application of this standard vis-á-vis his employees … the possibility that the employee will act inadvertently or without taking reasonable

[page 279] care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.

11.82 Sudden emergencies, particularly those brought on by the plaintiff, are not necessarily circumstances that can reasonably be anticipated by a defendant. This is particularly so in cases of motor vehicle accidents; for example, in Government Insurance Office (NSW) v Sharah (1993) 19 MVR 279 at 281–2, Handley JA for the New South Wales Court of Appeal stated:

Without wishing to place undue emphasis on estimates of distance made by witnesses in a situation of sudden emergency, it is reasonably clear in my view that the action of the plaintiff in stepping from out of behind the stationary vehicle into the kerbside lane without stopping and looking to his left for approaching vehicles, had created a sudden emergency, which made the accident inevitable, unless he could get out of the way, and that there was nothing in the time and space available to the defendant’s insured driver, which would have enabled her to take avoiding action … There is a well recognised principle that the courts must be careful in assessing the conduct of persons faced with a sudden emergency, and that principle applies in this case, so that it seems to me it is impossible to conclude that the driver acted negligently once she was aware of the emergency that confronted her.

The High Court in Derrick v Cheung (2001) 181 ALR 301 considered the liability of a driver who was driving at a reasonable speed but injured an infant who ran in front of the car. The trial judge of the District Court of New South Wales had found the driver liable despite the evidence that the driver’s speed (45–50 kilometres per hour) was well within the prescribed speed limit (60 kilometres per hour). The trial judge stated (quoted by the High Court at [9]): The presence of houses and shops in the vicinity, taken in conjunction with the date (shortly before Christmas), the day of the week (a Saturday) and the time of day (9.00 am), should have alerted her to the possibility that a small child such as the [respondent] might be on or near the road. The [appellant’s] emphasis in her evidence on the need, as she put it, to ‘look straight ahead’ and her failure to realise that her view to the left was obscured suggest that she did not in fact have this possibility in mind. This raises doubts about the validity of her belief, both at the time of the accident and subsequently as conveyed in cross-examination, that she was travelling at a safe speed. While her speed was some 10–15 kilometres per hour below the prevailing speed limit, it was in fact high enough to give her very little time to stop in an emergency such as actually occurred.

On appeal to the New South Wales Court of Appeal, reference was made to the need for drivers to anticipate careless acts of pedestrians and the appeal was dismissed: (1999) 29 MVR 351. The High Court, however, allowed the appeal, holding that there was no basis upon which negligence of the driver could be made: 181 ALR 301 at [13]. The fact that if the driver’s speed had been slower by a few kilometres per hour the accident may not have occurred

was merely speculative. The driver had been exercising reasonable care in the circumstances and, therefore, was not in breach of the standard of care. See also Wensink v Marshall (2010) 56 MVR 20 (appellant could not anticipate a child would suddenly appear at an intersection on a bicycle when there was nothing to indicate the presence of children and the appellant was driving at a modest speed and below the speed limit). In Roche v Kigetzis (2015) 72 MVR 67, the respondent was hit by the appellant’s [page 280] car when walking across a pedestrian crossing against a red light. There was a stationary bus in the right-hand through lane of the intersection that obscured the respondent’s view of activity in front of the bus. The court held that a reasonable driver should have anticipated the ‘real possibility of a person being on the roadway within the intersection given the presence of the stationary bus’: at [31].

Balancing the Factors 11.83 It is important to weigh all of the factors considered in the calculus of negligence against each other in order to answer the question whether a reasonable person in the position of the defendant would have taken precautions. In Mulligan v Coffs Harbour City Council (2005) 221 ALR 764 at [2], Gleeson CJ and Kirby J stated: Reference is often made to the “Wyong Shire Council v Shirt calculus”. In that case, Mason J referred to the way in which a tribunal of fact might determine what a reasonable person would do by way of response to a foreseeable risk. As he made clear, he was describing a process of factual judgment. He referred to such factors as the magnitude of the risk, the degree of probability of its occurrence, the expense, difficulty and inconvenience of taking alleviating action, and any other conflicting responsibilities of the defendant. These, he said, were matters to be balanced out in making a judgment about reasonableness. The later use of the word “calculus” to describe this passage is unfortunate. A calculus is a method of calculation. What is

involved in the process to which Mason J was referring is not a calculation; it is a judgment. [footnotes omitted]

11.84 In New South Wales v Fahy (2007) 232 CLR 486; 236 ALR 406 at [57], the High Court again noted the unfortunate use of the phrase ‘calculus of negligence’ and that the issue ‘requires a more elaborate inquiry that does not focus only upon how the particular injury happened’. 11.85 This overarching requirement that the response of the reasonable person is paramount has been reinforced by the civil liability legislation. For example, s 9(1)(c) of the Civil Liability Act 2003 (Qld) states that there is no breach of duty unless a reasonable person in the position of the defendant would have taken the precautions: see also Civil Law (Wrongs) Act 2002 (ACT) s 43(1)(c); Civil Liability Act 2002 (NSW) s 5B(1)(c); Civil Liability Act 1936 (SA) s 32(1)(c); Civil Liability Act 2002 (Tas) s 11(1)(c); Wrongs Act 1958 (Vic) s 48(1)(c); Civil Liability Act 2002 (WA) s 5B(1)(c). 11.86 It is the weighing up and balancing of the various factors that results, ultimately, in determination of breach. Therefore, even if a plaintiff proves a practical precaution was available to the defendant it is not conclusive that a reasonable person would have adopted that precaution. Similarly, the risk of harm may be very significant, but if the probability is extremely low, a reasonable person may not have thought it necessary to have taken precautions. In Borland v Makauskas [2000] QCA 521, the Queensland Court of Appeal held that the simple precaution of erecting signs to warn persons not to dive into a canal from a residential property would not be considered as necessary to a reasonable person in the circumstances. In Shaw v Thomas [2010] NSWCA 169, the plaintiff was injured when he fell from a bunk bed that did not have a guard rail or a ladder. The Court of Appeal held that failing to take the precaution of either installing a guard rail or providing a ladder,

[page 281] when weighed against the low probability of harm occurring and the harm unlikely to be serious, was not a breach of duty. However, in other circumstances, a simple and inexpensive solution may be considered to be reasonable even though the probability of harm is low: Wyong Shire Council v Shirt (1980) 146 CLR 40; 29 ALR 217. For example, in Miletic v Capital Territory Health Commission (1995) 130 ALR 591; 69 ALJR 675, the High Court held that the defendant had breached its duty of care by failing to lubricate the castors on the beds in the nurses’ quarters in a hospital. 11.87 The High Court decision of Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 provides a good example of the balancing process. The plaintiff was blinded in the eye during a game of indoor cricket being played at the defendant’s facilities. The plaintiff sued in negligence, alleging that the duty of care owed to him had been breached by the defendant failing to supply him with proper eye protection and failing to provide a sign warning of the dangers associated with the game. By a narrow majority of 3:2, it was held that the defendant had not breached its duty of care. In relation to the failure to provide eye protection, the majority held that the risk of injury was low, based on the evidence of serious eye injury in games of indoor cricket. As to the practicality of providing eye protection, due to the nature of the game which involved ‘clashing’ between fielders and batters, the wearing of helmets would actually increase the probability of injury. Evidence as to the customary standards was that the Australian Indoor Cricket Federation discouraged the use of helmets, and a player needed permission to wear one. It was not the practice of players to wear helmets, nor for the organisers to supply protection. The fact that there was an increased risk of injury in playing indoor cricket, as opposed to outdoor cricket, did not require a warning of the increased risk. The majority held that warning signs were not required by a reasonable

occupier of a sport facility as the risk of being hit by a ball during a game of indoor cricket would be an obvious risk: at [159]. In dissent, Kirby and McHugh JJ held that the defendant was in breach. Their Honours held that the defendant should have provided eye protection due to the gravity of the potential harm, that is, blindness: at [79], [120]. Also, it was noted that helmets were worn in other sports and had not caused problems despite having protruding face guards. Their Honours also believed that a warning was necessary as the increased risk of eye injury was not obvious and, therefore, reasonable care required players to be warned of that increased risk: at [80], [130].

4

Procedure and Proof

Functions of Judge and Jury 11.88 It is necessary to distinguish between questions of law and questions of fact, particularly in actions in negligence where a jury may sit. In negligence actions, the determination of the standard of care required in a particular case is a question of law for the court: see 11.4. The question of whether such standard has been breached is one of fact for the jury, or judge sitting without a jury: see 11.34. Only a court’s decision on a question of [page 282] law can create a precedent; answers to questions of fact cannot: Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249 at [140]; Bus v Sydney County Council (1989) 167 CLR 78 at 88–9; 85 ALR 577 at 583–5. 11.89 The judge exerts control over the proceedings, as it is for the judge to determine whether any facts have been established by evidence from which

negligence may reasonably be inferred. It is then for the jury to say how far the evidence is to be believed and whether negligence ought to be inferred from such evidence. In Metropolitan Railway Co v Jackson (1877) 3 App Cas 193 at 197 it was stated: The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether from those facts when submitted to them, negligence ought to be inferred.

11.90 A judge may withhold a case from the jury by deciding that the plaintiff has failed to establish a prima facie case. Likewise, if the evidence presented by the plaintiff is not sufficient to establish the elements of negligence, the defendant may submit that there is no case to answer and, if accepted, the action is dismissed: see 11.85. If the evidence given for the plaintiff is equally consistent with the existence or non-existence of negligence, it is the duty of the judge to refuse to allow the case to go to the jury: Fitzgerald v Penn (1954) 91 CLR 268; National Coal Board v England [1954] AC 403; Broadhurst v Millman [1976] VR 208. 11.91 A judge who has permitted a case to go to the jury should not then direct the jury to find for the plaintiff, even if the judge believes that a verdict to the contrary would be upset on appeal as unreasonable: Placer Exploration Ltd v Misiorowski (1969) 43 ALJR 376; [1970] ALR 435; Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155; Hocking v Bell (1947) 75 CLR 125. A trial judge is, however, entitled to make plain to the jury the way the judge’s own mind is working, provided the judge also makes it clear that the issues of fact are solely for them. In Willcox v Sing [1985] 2 Qd R 66, the Full Court of the Supreme Court of Queensland endorsed the right of a trial judge to comment to the jury that it should not lightly find against a professional person facing a charge of negligence of such a character as to put professional reputation and earning capacity at risk. 11.92 The division of functions between judge and jury has become less important as jury trials have been abolished in many jurisdictions in respect

of negligence actions: see, for example, Civil Liability Act 2003 (Qld) s 73 (claims for personal injuries); Motor Accident Insurance Act 1994 (Qld) s 56. Where there is no jury, the judge performs both the traditional function and becomes the tribunal of fact as well. In such cases, the judge often will not distinguish the different functions being performed and thereby sometimes fails to distinguish clearly between decisions on questions of fact and law.

Appeals 11.93 In order for the verdict of a jury to be upset on appeal, it must have been perverse, either because the jury disregarded evidence or because it failed to appreciate the weight of the evidence: Commissioner for Railways v Small [1957] ALR 529; Hocking v Bell (1947) [page 283] 75 CLR 125. In Waverley Municipal Council v Swain (2002) Aust Torts Reports ¶81-694, there was an appeal against the jury’s finding that the appellant had breached its duty of care by failing to warn the respondent of the existence of a sandbar between the flags erected on the beach. The New South Wales Court of Appeal allowed the appeal, holding that there was no evidence before the jury that justified its finding of breach: at 63,786. On appeal to the High Court, a majority reversed the decision of the Court of Appeal: Swain v Waverley Municipal Council (2005) 220 CLR 517; 213 ALR 249. 11.94 There are two additional grounds for setting aside a jury verdict based on errors of law: if the judge misdirected the jury (Ronald v Harper (1910) 11 CLR 63); or if the judge should not have allowed the case to go to the jury: Berwin v

Donohoe (1915) 21 CLR 1. 11.95 In exercising its discretion to grant special leave to appeal, the High Court has expressed the basis for considering errors of principle based on the credibility of witnesses as follows: In the ultimate analysis, the [plaintiff’s] case of negligence failed because the trial judge accepted the [defendant’s] evidence denying that there was massive bleeding during the operation and his evidence concerning the colour of the testicle and rejected the evidence of the [plaintiff] and his family that he was in considerable pain. In the nature of things, appellate courts are extremely reluctant to interfere with findings of fact based on a positive assessment of the credibility of a witness. In general, they will do so only where the testimony of a witness is in conflict with facts incontrovertibly established or it is glaringly improbable. That is not the case here: Daniels v Burfield (1994) 125 ALR 33 at 34–5 per Mason CJ, Toohey and McHugh JJ.

See also Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]. 11.96 In the case of an appeal from a judge sitting without a jury, an appeal court is more likely to exercise a wider power of review, particularly in relation to inferences drawn by the trial judge from the primary facts: Benmax v Austin Motor Co Ltd [1955] AC 370; Commissioner of Main Roads v Jones (2005) 79 ALJR 1104; 215 ALR 418. There have been expressions of reluctance to interfere: Barwick CJ and Windeyer J in Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192; Edwards v Noble (1971) 125 CLR 296. However, some Australian courts are more liberal in interfering: Warren v Coombes (1979) 142 CLR 531; 23 ALR 405. The High Court affirmed a more liberal approach to interference in Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577. In Manley v Alexander (2005) 223 ALR 228; 80 ALJR 413, the respondent was lying on a road in the early hours of the morning when he was struck by a car driven by the appellant. The trial judge at first instance found that there was no negligence, stating that there was ‘no evidence to justify the conclusion that at the time the [appellant] was not keeping a proper lookout’: at [6]. On appeal, the respondent was successful and was awarded damages.

The case then went on appeal to the High Court, the issue being whether a court of appeal could take a substantially different view of undisputed facts than that taken by the trial judge. A majority of the High Court dismissed the appeal, stating that it was ‘well open’ for the Full Court of Western Australia to have concluded that the appellant had failed to [page 284] exercise reasonable care when driving: at [14]. The court took into account that the incident occurred at night, that there was a street light close to where the respondent was lying, that the appellant had an uninterrupted view of the road and that, for a few seconds just before the incident, the appellant had been looking at the side of the road instead of the road itself: at [13]. In contrast, Callinan and Heydon JJ (in dissent) held that the decision of the Full Court could not be upheld as it ‘assumes that a motorist is not entitled to give attention to a particularly and potentially dangerous emergency situation in priority to an apparently benign one’: at [43]. The minority noted that the trial judge accepted the appellant’s evidence in respect of the incident as reliable and as it was extremely unlikely that a person would be lying on a road in dark clothing and not move out of the way of an oncoming vehicle with headlights on, it was reasonable for the appellant to focus on a pedestrian on the side of the road who was potentially a peril: at [42]–[44].

Onus and Standard of Proof 11.97 The onus of proof is on the plaintiff to show that the standard of care was breached by the defendant. The standard of proof required is the normal civil standard of proof on the balance of probabilities: Maher-Smith v Gaw [1969] VR 371. All that is necessary is a basis for reasonable inference: Katsilis v Broken Hill Proprietary Co Ltd (1977) 18 ALR 181; 52 ALJR 189;

Kouris v Prospector’s Motel Pty Ltd (1977) 19 ALR 343. In TNT Management Pty Ltd v Brooks (1979) 23 ALR 345 at 349; ALJR 267 at 269, Gibbs J stated: Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged.

11.98 The plaintiff will have failed if the evidence is equally consistent with the existence or absence of negligence: Maher-Smith v Gaw [1969] VR 371; Fitzgerald v Penn (1954) 91 CLR 268; National Coal Board v England [1954] AC 403. Likewise, where no inference of negligence can be drawn, the plaintiff fails: West v Government Insurance Office (NSW) (1981) 148 CLR 62; 35 ALR 437. 11.99 Factual evidence includes inferences which may reasonably be drawn: Host v Bassett (1983) 48 ALR 404; Millicent District Council v Altschwager (1983) 50 ALR 173; Nominal Defendant v Puglisi (1984) 58 ALJR 474. An example is given in Chisholm v State Transport Authority (1987) 46 SASR 148, where the plaintiff sought damages for personal injuries received when he was struck by a train. No direct evidence was given of the accident. The plaintiff asked the court to infer negligence from evidence of the nature of his injuries and from expert evidence that such injuries were compatible with a possible explanation for the accident from which negligence could be inferred. The Supreme Court held that the evidence was insufficient to support an inference of negligence or breach of contract as the proven facts were compatible with alternative explanations of equal degree of probability. [page 285] 11.100

A defendant may seek to argue no case to answer at the conclusion

of a plaintiff’s case where there is an absence of evidence informing the issue of breach of a duty owed by the defendant. For example, in Smith v Retirement Benefits Fund Investment Trust (1994) Aust Torts Reports ¶81286, the trial judge accepted such a contention in a case where shopping centre lift doors closed on the 65-year-old plaintiff, jamming her between them; however, the Full Court of the Supreme Court of Tasmania allowed an appeal. 11.101 In some jurisdictions, a submission of ‘no case to answer’ will deprive the defendant of a right to call evidence. If the ‘no case to answer’ submission fails, the defendant may present evidence in rebuttal and it is then for the jury to decide whether the defendant was negligent. The defendant may elect not to adduce evidence, in which case the jury must decide whether the defendant was negligent solely upon the evidence adduced by the plaintiff and such reasonable inferences as may be drawn from such evidence.

Res Ipsa Loquitur (The Thing Itself Speaks) 11.102 The maxim res ipsa loquitur represents a rule of evidence under which negligence may be inferred from evidence of the occurrence of the thing itself: Byrne v Boadle (1863) 2 H & C 722; 159 ER 299 (a flour barrel fell from an upper storey); Russell v London & South Western Railway (1908) 24 TLR 548; Fitzpatrick v Walter E Cooper Pty Ltd (1936) 54 CLR 200; Davis v Bunn (1936) 56 CLR 246; Mummery v Irvings Pty Ltd (1956) 96 CLR 99; Anchor Products Ltd v Hedges (1966) 115 CLR 493. If there is evidence available to explain what has occurred, the principle may not be relied upon: Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 122. In Swick Nominees Pty Ltd v Leroi International Inc (No 2) (2015) 318 ALR 666; 48 WAR 376 at [160], it was explained (citing Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594 at [25]): The process of reasoning which enables the drawing of an inference of negligence from the mere occurrence of an event is only available if:

(a) there is an absence of explanation of the occurrence that caused the injury; (b) the occurrence was of a kind that, in the ordinary course of things, does not happen without negligence; and (c) the instrument or agency that caused the injury was under the defendant’s control.

11.103 The principle permits an inference of negligence being drawn, but it does not necessitate such a finding: Davis v Bunn (1936) 56 CLR 246; contrast Fitzpatrick v Walter E Cooper Pty Ltd (1936) 54 CLR 200. 11.104 In Australia, there is no shift in legal onus onto the defendant to disprove the plaintiff’s case once the plaintiff claims res ipsa loquitur: Davis v Bunn; Fitzpatrick v Walter E Cooper Pty Ltd; Mummery v Irvings Pty Ltd. Nevertheless, in a restricted practical sense, there may be a shift in onus because, although the defendant is not obliged in law to call evidence in rebuttal, the defendant runs the practical risk that failure to call evidence may lead to certain adverse inferences being drawn against him or her: Government Insurance Office (NSW) v Best (1993) Aust Torts Reports ¶81210 at 62,096. [page 286] 11.105 If a plaintiff adduces specific evidence of an act of negligence on the part of the defendant, and such specific evidence is not sufficient to satisfy the tribunal of fact of the defendant’s negligence, the plaintiff may still rely on res ipsa loquitur and inferences to be drawn from the general nature of the accident, that is, the adducing of positive evidence by a plaintiff does not prevent the plaintiff from relying also upon the principle: Anchor Products Ltd v Hedges (1966) 115 CLR 493. 11.106 Since the onus remains throughout on the plaintiff, the mere fact that the circumstances of the accident are peculiarly within the knowledge of the defendant is insufficient to relieve the plaintiff of giving some evidence of

negligence (Hampton Court Ltd v Crooks (1957) 97 CLR 367) or evidence from which negligence may be inferred: Railway Commissioner v Corben [1939] SR (NSW) 55. 11.107 Although it is not possible to formulate the general circumstances in which a res ipsa loquitur case may occur, it can be said that it is always necessary that the accident be of a kind which does not ordinarily occur without negligence. For example, a barrel of flour does not ordinarily drop from a warehouse without involving someone’s negligence: Byrne v Boadle (1863) 159 ER 299. 11.108 If there is an ordinary explanation for the occurrence of injury which does not bespeak negligence on the part of a defendant, it will be sufficient to defeat a plaintiff’s plea of res ipsa loquitur. For example, in Daniel v Anniversary Nominees Pty Ltd (1990) 9 SR (WA) 35, the plaintiff attended a Christmas function with a number of fellow employees at the defendant’s premises. The plaintiff slipped and fell on the dance floor. She alleged that it was too slippery to dance upon or that the defendant was liable for providing a slippery and dangerous floor, or had inadequately supervised the preparation of the dance floor. The court held (at 41–2): In order that the plaintiff may succeed upon its plea of res ipsa loquitur she must show that the mere fact that the accident has occurred raises an inference of negligence against the defendant; that notwithstanding an inability to establish the exact cause of the accident, the fact of the accident by itself is sufficient in the absence of an explanation to justify the conclusion that most probably the defendant was negligent and that its negligence caused the injury. That I find is not here the case. An explanation for the plaintiff’s injury is that during the course of a particular movement she slipped upon an admittedly slippery floor. It does happen, particularly with leathersoled shoes. The plaintiff may or may not have slipped had she worn chamois leathersoled and heeled shoes but the fact that she slipped is not a new experience amongst dancers. The slipping does not however lead to an inference that the floor was too slippery.

11.109 If there is no evidence and no such ordinary explanation, a court will tend to favour the plaintiff. In Crook v Thyssen Mining Construction of

Australia Pty Ltd (1992) 9 SR (WA) 10, the plaintiff, working at the bottom of a mine shaft near Kalgoorlie, was struck on the head and forearm by a falling object. There was no evidence called to show how the object might have fallen without negligence and the court held the plaintiff’s injuries were caused by the defendant’s negligence. [page 287] Doval v Anka Builders Pty Ltd (1992) 28 NSWLR 1 involved injury to the plaintiff foreman carpenter when he tripped during a 10-minute blackout on a construction site. He relied upon res ipsa loquitur, but a majority of the New South Wales Court of Appeal rejected the reliance. Clarke JA, with whom Handley JA agreed, stressed (at 13): It is not enough that the occurrence speaks of negligence generally. The evidence must go further and demonstrate that the negligence which can be inferred from the occurrence is that of the defendant or those for whom it is responsible.

His Honour concluded (at 15): No attempt was made to establish that power was still being transmitted to the premises and that there had been no failure beyond the perimeter of the building. All that was proved was that the lights failed and remained out for ten minutes. While it is probably true that the [defendant] could have explained what occurred at the critical time its failure to do so did not provide evidence which filled in the gaps in the [plaintiff’s] case. In the result the [plaintiff’s] failure to establish that the provision of electricity throughout the building was within the exclusive control of the [defendant] leads to the conclusion that he failed to establish the occurrence of an event from which negligence on the part of the [defendant] could be inferred.

See also Minogue v Rudd [2012] NSWSC 305, where the claim of res ipsa loquitur was rejected by the court as the facts of the case as although the plaintiff’s fall through an unfinished floor on a building site could have involved negligence on the part of the defendant, it also could have involved the plaintiff’s own conduct. 11.110

The res (or thing) must also permit the reasonable inference that

the ‘someone’ was the defendant and this is done normally by showing that the defendant had the exclusive control of the res. In Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; 170 ALR 594, the appellant was injured at work while using a hand grinder and sued the employer in negligence. At first instance, it was held that the principle of res ipsa loquitur applied, but an appeal by the employer was successful before the Full Court of the Western Australian Supreme Court. On appeal to the High Court, it was held that the principle did not apply. Kirby J (at [121]– [123]) observed about the principle: This court has emphasised many times, and for over 60 years, that the maxim res ipsa loquitur “should be regarded merely as an application of the general method of inferring one or more facts in issue from circumstances proved in evidence” (Davis v Bunn (1936) 56 CLR 246 at 268). In this respect, this court has not been alone. Judges elsewhere have been at pains to deny to the maxim any ‘magic qualities’ (Roe v Minister of Health [1954] 2 QB 66 at 87 per Morris LJ). They have expressed exasperation at the suggestion that the maxim amounts to a “principle”, or even worse, a doctrine of law (Ballard v North British Railway Co [1923] SC 43 at 56). Lord Shaw of Dunfermline remarked nearly 80 years ago that if it “had not been in Latin, nobody would have called it a principle” ([1923] SC 43 at 56). Its invocation “is no substitute for reasonable investigation and discovery” (McDonal v Smitty’s Super Valu Inc 757 P 2d (1988) 120 at 125). Nor does it “relieve a plaintiff too uninquisitive to undertake available proof” (757 P 2d (1988) 120 at 125). As these reasons demonstrate, despite the foregoing criticisms, in Australia as in other countries, the maxim has proved most resilient. Doubtless this is because its brevity expresses a vivid idea

[page 288] which may occasionally promise hope to a plaintiff who, through no fault of his or her own, is unable to establish exactly what caused the damage said to be the result of the defendant’s want of care in respect of matters wholly or largely within the knowledge and control of the defendant. An advantage of abolishing the maxim would be that it might release judicial minds from the encrustations of authority that have gathered around the maxim and its multitude of attempted applications over the 130 years of its existence. But even if, in this case, res ipsa loquitur, as such, were overthrown and the facts analysed by reference solely to ascertaining the inferences

available from the facts as found, this would make no difference. The position would remain the same. The attempts at specific explanations of the disengagement of the air hose and the grinder coupling would remain rejected. The possibility that the disengagement occurred for other reasons not alleged would still be, as the primary judge described them, “speculative”. The question would come back to whether, in this context, the tribunal of fact was justified in inferring that it was more probable than not that the hose and coupling were insecurely fastened. That inference would remain just one of many possibilities. Selection of it as more probable than not would be as impermissible if no Latin maxim were invoked as it is if the established jurisprudence of res ipsa loquitur was applied.

In Metrolink Victoria Pty Ltd v Auspro Logistics Pty Ltd (2008) 49 MVR 350, the respondent’s truck collided with a railway bridge, causing interruption to the appellant’s tram service and other incidental damage. The court rejected the claim of res ipsa loquitur as the appellant failed to adduce sufficient evidence to establish that such an accident ‘does not ordinarily occur in the absence of negligence by the driver of the vehicle which collided with the bridge’: at [25]. See also Lafranchi v Transport Accident Commission (2006) 14 VR 359; Barrak Corp Pty Ltd v Kara Group of Companies Pty Ltd [2014] NSWCA 395. Res ipsa loquitur was established in SJ Weir Ltd v Bijok (2011) 112 SASR 127, as the court accepted the appellant’s negligent excavations on land adjoining the respondents’ led to subsidence and the damage to the respondents’ property. In Potts v Frost (2011) 59 MVR 267, the plaintiff and defendant were on a motorbike which left the road and hit a tree, leaving both parties paraplegics. The court held that the evidence from the scene of the accident ‘put the case in a category of the kind of occurrence which does not ordinarily occur without negligence. That evidence makes the inference of negligence a more likely explanation. It is more consistent with negligence than with an innocent cause’: at [48]. 11.111 There are some special situations in which it has been suggested that even in cases not involving res ipsa loquitur, a burden of proof is placed upon the defendant to prove some matter: 1.

There is questionable English authority that injury resulting from a

defect in a vehicle or machine in the exclusive control of the defendant casts upon the defendant the burden of proof of proper maintenance: Pearce v Round Oak Steel Works Pty Ltd [1969] 1 WLR 595; Henderson v Henry E Jenkins & Sons [1970] AC 282. 2.

The burden of proving the partial defence of contributory negligence is clearly upon the defendant: Butterfield v Forrester (1809) 11 East 60; 103 ER 926. [page 289]

3.

A burden of proof is cast upon bailees to show that the loss or damage to goods bailed was not due to their negligence: Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 8. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 3.

1

M Davies and I Malkin, Focus — Torts, 6th ed, LexisNexis Butterworths, 2012, [3.5].

2

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

[page 291]

Chapter 12 Damage — Causation and Scope 1

Introduction

12.1 In Tabet v Gett (2010) 240 CLR 537; 84 ALR 292 at [109], Kiefel J stated the well-established principle: Damage is an essential ingredient in an action for negligence; it is the gist of the action [Williams v Milotin (1957) 97 CLR 465 at 474; [1957] ALR 1145]. The action developed largely from the old form of action on the case, in which it was the rule that proof of damage was essential to a plaintiff’s case [see W Prosser, Handbook of the Law of Torts, 2nd ed, West, Minnesota, 1955, p 165; G Williams and A Hepple, Foundations of the Law of Tort, 2nd ed, Butterworths, London, 1984, p 60]. In Brunsden v Humphrey [(1884) 14 QBD 141 at 150] Bowen LJ pointed out that in certain classes of case the mere violation of a legal right imports damage, but that principle was “not as a rule applicable to actions for negligence: which are not brought to establish a bare right, but to recover compensation for substantial injury”. Generally speaking “there must be a temporal loss or damage accruing from the wrongful act of another, in order to entitle a party to maintain an action on the case” [Williams v Morland (1824) 2 B & C 910 at 916;107 ER 620 at 622], referred to in Brunsden at 150 per Bowen LJ]. Negligence in the abstract will not suffice [Hay or Bourhill v Young [1943] AC 92 at 116; [1942] 2 All ER 396 at 408–9 per Lord Porter; Haynes v Harwood [1935] 1 KB 146 at 152].

See also Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [251] and Alcan Give Pty Ltd v Zabic (2015) 325 ALR 1. 12.2 When referring to the damage element of the negligence action, it is more than simply identifying that the plaintiff suffered some form of loss. The element requires consideration of the following issues: whether the loss suffered by the plaintiff is a kind of damage recognised by the law; whether the defendant’s breach caused the plaintiff’s loss (factual

causation); and whether it is appropriate to hold the defendant responsible for the plaintiff’s loss (scope of liability). [page 292] 12.3 In relation to the elements of negligence, it is the damage element which, as recommended by the Ipp Report,1 the civil liability legislation (except in the Northern Territory) has modified the most. However, decisions of the High Court have indicated dissatisfaction with the common law approach to causation and the court’s interpretation of the civil liability provision may bring the common law and the statutory approach into alignment. The common law approach remains relevant due to the exceptions of the civil liability’s application. For example, depending upon the jurisdiction, the legislation does not apply to an injury that is: a dust-related condition; the result of smoking or the use of other tobacco products or exposure to tobacco smoke; or an injury for which workers’ compensation is payable. See Civil Law (Wrongs) Act 2002 (ACT) s 41; Civil Liability Act 2002 (NSW) s 3B; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 4; Civil Liability Act 2003 (Qld) s 5; Wrongs Act 1936 (SA) s 4; Civil Liability Act 2002 (Tas) s 3B; Wrongs Act 1958 (Vic) s 45; Civil Liability Act 2002 (WA) ss 3A and 6.

2

Recognised Kind of Damage

12.4 Since damage is the gist of a negligence action, the plaintiff’s damage must be non-minimal and of a kind recognised by law. The law recognises

property damage, personal injury, including pure psychiatric injury, and economic loss, be it consequential or pure economic loss. 12.5 While the term ‘damage’ is traditionally used to describe the subject matter of the third element of negligence, there are alternative terms which may be used, for example ‘loss’, ‘injury’ and ‘harm’: Harriton v Stephens (2004) 59 NSWLR 694 at [41]–[42] per Spigelman CJ. 12.6 Under the civil liability legislation, the term ‘harm’ is used in preference to that of ‘damage’ and is defined as meaning ‘harm of any kind’ including personal injury or death, damage to property and economic loss. See Civil Law (Wrongs) Act 2002 (ACT) s 40; Civil Liability Act 2002 (NSW) s 5; Civil Liability Act 2003 (Qld) Sch 2; Civil Liability Act 1936 (SA) s 3; Civil Liability Act 2002 (Tas) s 9; Wrongs Act 1958 (Vic) s 43; Civil Liability Act 2002 (WA) s 3.

Damage Not Recognised at Law 12.7 In Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 at [219], it was noted: The phrase “legally cognisable” is used here to mean “capable of being known or recognised for the purposes of judicial proceedings”.

[page 293] 12.8 Sometimes courts have denied recovery for some kinds of damage on the basis that no duty of care is owed or that the damage was ‘too remote in law’ rather than simply categorise the damage as not being of a kind recognised at law. Nevertheless, as the High Court decisions in Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 and CSR Ltd v Della Maddalena (2006) 80 ALJR 458 demonstrate, there will be situations where the manner in

which the case is argued will require a determination as to whether the kind of damage is recognised in the context of the damage element of the action. In CSR Ltd v Della Maddalena, a workplace injury case, the nature of the appeal to the High Court required, inter alia, the court to determine whether, as a matter of evidence, the plaintiff had established that he suffered from a compensable kind of damage or injury: see, for example, Callinan and Heydon JJ at [197]. Ultimately, however, whether recognition of the kind of damage is determined as part of the duty, or as part of the damage element, the decision will be underpinned by similar common law principles, rules and policy considerations, especially the fear of indeterminate liability.

Loss associated to illegal activities 12.9 Where the damage consists of the termination of benefits flowing from criminal or fraudulent activities, the law does not recognise the loss as a compensable form of damage based upon policy grounds. In Meadows v Ferguson [1961] VR 594, the plaintiff claimed damages for personal injury, including lost wages. For the relevant period the plaintiff was a clerk to a starting-price bookmaker — an unlawful activity. The court held (at 598): … the plaintiff, had he not been injured, would have continued in his employment by [the bookmaker], and that the earnings of which the plaintiff was deprived during his 12 weeks’ incapacity were those which he would have received for aiding and abetting [the bookmaker] in his business, which plainly was unlawful. I am, therefore, of opinion that the plaintiff’s award of special damages should include no sum in respect of loss of wages.

The non-recognition of this kind of damage has been consistently acknowledged as being based upon policy grounds: Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95; Le Bagge v Buses [1958] NZLR 630; Mills v Baitis [1968] VR 583; Burns v Edman [1970] 2 QB 541; State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500.

Loss unable to be quantified

12.10 If the loss claimed by the plaintiff is too vague to be capable of recognition, the law will not recognise the damage: Roberts v Roberts (1864) 5 B & S 384; 122 ER 874 (expulsion from a social club held to be too vague).

Wrongful life 12.11 In Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391 (Harriton), the plaintiff’s claim was based upon the fact that the doctor had negligently failed to diagnose and inform the plaintiff’s parents that she was likely to be born with severe disabilities. The mother was able to prove that she would have terminated the pregnancy if she had been informed of the consequences of having rubella in the first trimester of her pregnancy. [page 294] In Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457 (Waller), the defendants had failed to detect a genetic defect prior to carrying out the IVF procedure which resulted in the birth of the child. If the parents had known that there was a 50 per cent chance that the child would be born severely disabled, due to a genetic defect carried by the father, the parents would not have proceeded with the conception of the child using the father’s sperm, or the mother would have been tested during the pregnancy to determine if the foetus was carrying the genetic defect. 12.12 In both Harriton and Waller, the primary issue for the High Court was whether life itself, albeit a profoundly disabled life, can be recognised as a form of damage. By a 6:1 majority in both cases, it was held that damage or harm for which the plaintiffs claimed compensation was not recognised for the purposes of a duty of care in a negligence action. Crennan J, who wrote the leading judgment, said in Harriton (at [251]–[252]): Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss,

deprivation or detriment caused by the alleged breach of duty. Inherent in that principle is the requirement that a plaintiff is left worse off as a result of the negligence complained about, which can be established by the comparison of a plaintiff’s damage or loss caused by the negligent conduct, with the plaintiff’s circumstances absent the negligent conduct. … A comparison between a life with disabilities and nonexistence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible. Judges in a number of cases have recognised the impossibility of the comparison and in doing so references have been made to philosophers and theologians as persons better schooled than courts in apprehending the ideas of nonbeing, nothingness and the afterlife. [footnotes omitted]

12.13 When the parent is the plaintiff instead of the child (wrongful birth), the additional costs of raising a disabled child, over and above those of raising a healthy child, have been recognised in Australia by the Queensland Court of Appeal in Veivers v Connolly [1995] Qd R 326. The doctor negligently failed to advise the plaintiff that she had contracted rubella during the first trimester of her pregnancy, with the result that the child was born severely disabled. The mother was successful in a negligence action against the doctor on the basis that, if she had been advised of the true situation, she would have legally terminated the pregnancy. In England, a similar decision was given in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] 3 All ER 97 (CA). 12.14 Negligence for wrongful conception (mother would not have conceived but for negligence of defendant) involves claims for damages to compensate for the costs associated with raising the child. Unlike the damage in wrongful life, such loss may be compensated by the law. In Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131, the respondents sued the appellant for the negligent performance of a tubal ligation that resulted in the birth of a healthy but unwanted child. The High Court found in favour of the respondents. The damage was identified by McHugh and Gummow JJ (at [67]): … the relevant damage suffered by the Melchiors is the expenditure that they have incurred or will incur in the future, not the creation or existence of the parent-child relationship. If, for example,

[page 295] their child had been voluntarily cared for up to the date of trial, they could have recovered no damages for that part of the child’s upbringing. And, if it appeared that that situation would continue in the future, then the damages they would be able to recover in the future would be reduced accordingly.

Damage was not in issue as the court could quantify the costs associated with raising a child. After that decision, provisions were enacted in New South Wales, Queensland and South Australia to prevent a court awarding damages for economic loss resulting from rearing and maintaining a child or any loss of earnings associated with the rearing or maintenance of the child: Civil Liability Act 2002 (NSW) s 71; Civil Liability Act 2003 (Qld) s 49A; Civil Liability Act 1936 (SA) s 67.

Grief etc 12.15 The law does not recognise general anxiety or vexation (Calveley v Chief Constable of Merseyside Police [1989] AC 1228; 1 [1998] All ER 1025) or emotional disturbance that does not manifest as some recognised psychiatric injury: Leonard v Pollock [2012] WASCA 108. 12.16 In Coates v Government Insurance Office of New South Wales (1995) 36 NSWLR 1, the distinction between grief and recognised psychiatric illness was in issue. The appellants were the children of a victim of a motor vehicle accident caused by the driver insured by the respondent. The court held that the appellants had not suffered a psychiatric illness and therefore their claim in negligence could not succeed. Clarke JA stated (at 21): Although the grief in both cases appeared intense at times and of relatively long duration I do not think it can be said that the trial judge was wrong to conclude that the appellants had not established the existence of the injury necessary to sustain their claims.

12.17

The fear of developing a disease that has an extended incubation

period is not a recognised form of damage — the disease must manifest itself to be actionable. However, if that fear is the starting point for the development of some form of psychoneurosis, or a psychosomatic illness which causes the plaintiff to suffer a psychiatric illness, that may be compensable: CSR Ltd v Della Maddalena (2006) 80 ALJR 458 at [198] per Callinan and Heydon JJ, citing Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 394. See also Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100; J & K Clothing Pty Ltd v Mahmoud [2004] NSWCA 207.

Loss of chance 12.18 In Rufo v Hosking (2004) 61 NSWLR 678, the New South Wales Court of Appeal discussed whether the loss of a better medical outcome could be claimed as damage in a medical negligence case. The court was of the opinion that if the plaintiff could prove on the balance of probabilities that there was a chance of a better outcome and that on the balance of probabilities they would have elected to have that chance, they could be compensated for that loss of chance: see [40]. [page 296] 12.19 At the time of the decision of Rufo v Hosking, there had been no consideration of the issue by the High Court. The High Court took the opportunity to determine the issue in Tabet v Gett (2010) 240 CLR 537; 265 ALR 227. The court held (at [50]) that: … in an action in tort where damage is the gist of the action, the issue which precedes any assessment of damages recoverable is whether a lost opportunity, as a matter of law, answers the description of “loss or damage” which is then compensable.

In that case, the six-year-old appellant was admitted to hospital suffering from headaches and vomiting. A provisional diagnosis was made and two

days later, while still in hospital, the appellant was unresponsive so a lumbar puncture was ordered. The next day a CT scan and EEG were carried out which revealed that the appellant was suffering from a brain tumour that had been there for two years. She underwent an operation but suffered irreversible brain damage. The appellant did not allege that the treatment or operation was negligent. Instead it was claimed that the negligence was the failure to carry out a CT scan earlier and that this failure led to the appellant suffering the loss of a better medical outcome. All members of the High Court were of the opinion that to recognise loss of a better outcome, independent of any physical injury, as actionable damage, would require a radical change in the law of negligence: see Crennan J at [102]. Note the comment of Gummow ACJ at [27], that may leave open the possibility of loss of chance being compensated in a case where causation can be established, unlike in Tabet v Gett: … this outcome will not require acceptance in absolute terms of a general proposition that destruction of the chance of obtaining a benefit or avoiding a harm can never be regarded as supplying that damage which is the gist of an action in negligence.

12.20 In Hotson v East Berkshire Area Health Authority [1987] AC 750, the House of Lords held that it was for the plaintiff to prove, on the balance of probabilities, that the negligence of the defendant materially contributed to the damage suffered and not to the loss of the chance to avoid that damage. See also Gregg v Scott [2005] 2 WLR 268 and Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [6]–[10].

3

Factual Causation

12.21 Damage is often the result of a complex set of conditions and to satisfy the causation stage of the damage element, the plaintiff must be able to show that the defendant’s act or omission was causally related to the injury or damage suffered by the plaintiff. For example, in Barnett v Chelsea and

Kensington Hospital Management Committee [1969] 1 QB 428, there was no dispute that the defendant hospital had failed to provide the plaintiff’s husband with medical treatment after he became ill from drinking tea containing arsenic. Despite the defendant’s acknowledged breach of its duty of care, the fact that the husband would have died anyway, even with medical treatment, meant that the plaintiff’s action failed since she could not establish a causal link between the defendant’s breach and her husband’s death. [page 297]

Common Law Tests 12.22 At common law, various tests were developed to determine factual causation. The tests arose from the need to circumvent the common law rule that any negligence on the part of the plaintiff was a complete defence to the plaintiff’s claim. The tests included: the directness test; the ‘last opportunity’ test; the ‘but for’ test; and the ‘common sense and experience’ test. With the enactment of the civil liability legislation, the test of factual causation is now the ‘necessary condition’ test. However, the more recent common law tests remain relevant, as the High Court has stated that the civil liability legislation test is the ‘statutory statement of the “but for” test of causation’: Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420 at [18]; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 at [55].

The ‘but for’ test 12.23

The ‘but for’ test requires the court to ask: on the balance of

probabilities, would the plaintiff have suffered this damage, but for the defendant’s negligence? If the court finds that the damage would have occurred regardless of the defendant’s negligence, then the defendant’s negligence will be found not to be a cause of the plaintiff’s damage. As Hayne J commented in Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78 ALJR 572 at [15], the value of the test is that, in most cases, its use will identify ‘the role which a particular act or omission played in the occurrence of an event’. 12.24 In Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420 at [18], the High Court stated: While the value of that test [the “but for” test] as a negative criterion of causation has long been recognised, two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff’s harm. Secondly, it does not address the policy considerations that are bound up in the attribution of legal responsibility for harm. [footnotes omitted]

12.25 One of the cases to recognise the limitations of the test was March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423, where it was noted that the ‘but for’ test provides no indication as to when an antecedent cause of the damage will be regarded by the courts as being a legally significant cause of the plaintiff’s damage. As Deane J commented (at CLR 523; ALR 435): … the mere fact that something constitutes an essential condition (in the “but for” sense) of an occurrence does not mean that, for the purposes of ascribing responsibility or fault, it is properly to be seen as a “cause” of that occurrence as a matter of either ordinary language or common sense. Thus, it could not, as a matter of ordinary language, be said that the fact that a person had a head was a “cause” of his being decapitated by a negligently wielded sword notwithstanding that possession of a head is an essential precondition of decapitation … the question whether

[page 298] conduct is a “cause” of injury remains to be determined by a value judgment involving ordinary notions of language and common sense.

12.26 See McHugh J’s comment in the medical negligence case of Chappel v Hart (1998) 195 CLR 232; 156 ALR 517 at [48], where his Honour, in the minority of 3:2, concluded that the defendant’s failure to warn his patient of the risks of the operation ‘was no more causative of the [injury] than were his medical qualifications’. The evidence was that the operation was performed without negligence, but the respondent would not have undergone the operation if she had been warned of the risks. However, she would have had to have undergone the operation at some stage, but would have sought the most experienced surgeon available. The majority held that the doctor’s failure to warn contributed to the harm and the doctor was therefore liable. Honoré analyses this decision and concludes: Dr Chappel violated Mrs Hart’s right to choose for herself, even if he did not increase the risk to her. Judges should vindicate rights that have been violated if they can do so consistently with the authority of statutes and decided cases. In this case the High Court did just this, in effect by making Dr Chappel, when he operated on Mrs Hart, strictly liable for any injury he might cause of the type against which he should have warned her. For Dr Chappel did cause the harm that Mrs Hart suffered, though not by the advice he failed to give her. He did so by operating on her and, though he operated with due care, he slit open her oesophagus with disastrous consequences. Morally he was responsible for the outcome of what he did.2

The ‘common sense and experience’ test 12.27 The limitations of the ‘but for’ test led to the development of the ‘common sense and experience’ test. In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423, the heavily intoxicated plaintiff was injured when he drove into the rear of the defendant’s truck. The defendant had parked the truck, with its rear and hazard lights on, in the middle of the road at night to load bins of farm produce. The trial judge found for the plaintiff but reduced his damages by 70 per cent to take into account his contributory negligence. The question the High Court was required to answer was whether the ‘conduct of the defendant in parking a truck in the middle of the street was a legally operative cause of the damage suffered by the plaintiff’: at CLR 526; ALR 437 per McHugh J. The High Court unanimously agreed with the trial judge and found that both the defendant’s parking of its truck in the

middle of the road and the plaintiff’s intoxication were each a cause of the accident in which the plaintiff suffered his injuries or damage. Mason CJ, with whom Dean, Toohey and Gaudron JJ agreed, rejected the use of lengthy analysis of causation theory3 as not being useful in ascertaining or apportioning legal responsibility. Instead, his Honour held that ‘at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage’: at CLR 509; ALR 425. [page 299] Their Honours also confirmed the continuing validity of the ‘but for’ test, but held that, in certain circumstances, the results yielded by that test must be ‘tempered by the making of value judgments and the infusion of policy considerations’: at CLR 516; ALR 431 per Mason CJ. 12.28 The common law test of ‘common sense and experience’ will be used in circumstances where the results yielded by the ‘but for’ test need to be ‘tempered’ by normative considerations, including value judgments involving ordinary notions of language and common sense and policy considerations. Typical situations where the ‘common sense and experience’ test will be applied are in cases which raise difficulties due to antecedent causes and multiple causes. See, for example, Bennett v Minister for Community Welfare (1992) 176 CLR 408; Medlin v State Government Insurance Commission (1995) 182 CLR 1; 127 ALR 180; Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78 ALJR 572; Roads and Traffic Authority v Royal (2008) 245 ALR 653; 82 ALJR 870. 12.29 In Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78 ALJR 572, the High Court applied the ‘common sense and experience’ test to determine whether, in the circumstances of that particular case, each of three

possible causes should be regarded as a legally significant cause of the motor vehicle accident in which the nine-year-old plaintiff was injured. The three possible causes were: 1.

the failure to keep a proper lookout by the first defendant driver who struck the child;

2.

the joint failure of the council and road traffic authority to appropriately maintain the foliage on the median strip so that the driver’s view of the child stepping off the median strip was not obscured; and

3.

the style and location of parking bays built by the road traffic authority and the failure by the council to post warning signs as to the dangers posed by their presence.

In explaining which of the causal factors should be held legally relevant or significant, their Honours unanimously agreed that the third possible cause, that is, the location and design of the parking bays, was insufficient grounds to hold that the lack of a sign of the kind postulated had been a cause of the accident. As Hayne J explained (at [13]): No doubt the positioning of the parking bays and their use on the day of the accident were events which form a part of the history which led to Nadia Ryan being struck by the vehicle which Mr Pledge was driving. But did the presence or design of the bays play a role which, in the context of an inquiry about negligence, can properly be described as causative? If the provision or the design of the parking bays … played any role in the happening of this accident it was so slight as properly to be discarded from consideration in assessing legal responsibility.

12.30 The ‘common sense and experience’ test is also not a complete answer to the question of causation. The High Court in Travel Compensation Fund v Tambree (t/as R Tambree and Associates) (2005) 224 CLR 627; 222 ALR 263 held that the common law test is not of general application but may operate differently according to the purpose for which the causation question is asked. Gummow and Hayne JJ, in particular, were also doubtful as to whether there is any ‘common sense’ notion of

[page 300] causation which can provide a useful, still less universal, legal norm. Instead, their Honours suggested: There are, therefore, cases in which the answer to a question of causation will require examination of the purpose of a particular cause of action, or the nature and scope of the defendant’s obligation in the particular circumstances. In this case, the primary task of the Court is to apply the legislative norms to be found in the Fair Trading Act …: at [45].

12.31 In Travel Compensation Fund v Tambree (t/as R Tambree and Associates), the plaintiff was the statutory insurer for travel agents and the defendants were the accountant and auditor of a licensed travel agent. As required by the statutory insurance scheme, the defendants provided financial statements to the plaintiff statutory insurer. The financial statements were found to be misleading and deceptive, a breach of the consumer protection legislation. The causation issue arose because the plaintiff’s damage, being the payment of compensation claims to the travel agent’s clients, mainly arose at a time when the travel agent was unlicensed and, therefore, trading illegally. In the High Court, their Honours unanimously agreed that where a cause of action is conferred by statute, the statutory objectives and purpose are the primary source of the relevant legal norms: see, for example, Gleeson CJ at [28], Kirby J at [66] and Callinan J at [79]. See also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568; 215 ALR 385 at [97]; Toll Pty Ltd v Dakic [2006] NSWCA 58. 12.32 In Roads and Traffic Authority v Royal (2008) 245 ALR 653; 82 ALJR 870, the defendant (Royal) was in a car accident at an intersection with the plaintiff who took action against Royal and the Roads and Traffic Authority (RTA) in negligence. The trial judge found the defendant negligent, but held that the RTA was not in breach of its duty to Royal. On appeal it was held that the RTA was in breach of its duty — failing to improve the vision of the drivers by moving the stop sign at the intersection and failing to construct a

different intersection that was safer. The issue before the High Court was whether the breach of the RTA (the appellant) had caused the plaintiff’s loss. The defendant argued that if there was no cross-intersection, there would not have been a cross-intersection accident, and that the cross-intersection had a design fault which could have been overcome by replacing the crossintersection and by failing to do this, the RTA caused the accident. The High Court pointed out that the majority of the Court of Appeal had erroneously relied upon the ‘but for’ test as a comprehensive test of causation: at [32]. Even though if a differently designed intersection existed, the accident on the balance of probabilities would not have happened, on the evidence the design of the intersection had not contributed to the accident. The High Court held that causation had not been established. Gummow, Hayne and Heydon JJ stated (at [25]): … even if it could be said that the appellant’s breach of duty “did materially contribute” to the occurrence of an accident, “by creating a heightened risk of such an accident” … it made no contribution to the occurrence of this accident.

[page 301]

Civil Liability Legislation 12.33 The civil liability legislation has adopted the test of ‘necessary condition’ of the occurrence of the harm in respect of factual causation and provides for ‘exceptional’ cases. For example, s 11 of the Civil Liability Act 2003 (Qld) provides: (1) A decision that a breach of duty caused particular harm comprises the following elements — (a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation); … (2) In deciding in an exceptional case, in accordance with established principles, whether a breach of duty — being a breach of duty that is established but which can not be

established as satisfying subsection (1)(a) — should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

The factual causation subsection has been referred to as the ‘statutory statement of the “but for” test of causation’: Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420 at [18]; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 at [55]. Subsection (2), ‘exceptional’ cases, applies when there are evidentiary gaps and therefore the ‘but for’ test is not appropriate: see 12.39. See also Civil Law (Wrongs) Act 2002 (ACT) s 45 (subs (1)(a) refers to negligence); Civil Liability Act 2002 (NSW) s 5D (negligence); Wrongs Act 1936 (SA) s 34 (negligence); Civil Liability Act 2002 (Tas) s 13 (breach of duty); Wrongs Act 1958 (Vic) s 51 (negligence); Civil Liability Act 2002 (WA) s 5C (fault). There is no equivalent in the Northern Territory legislation.

The ‘necessary condition’ test 12.34 Unlike the common law ‘common sense and experience’ test, where normative issues can be considered, under the civil liability legislation test of causation, normative issues are not relevant. Factual causation under the legislation is the ‘but for’ test: Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628 at [45]; Zanner v Zanner (2010) 79 NSWLR 702; Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420. In Adeels Palace Pty Ltd v Moubarak at [43], it was stated: Dividing the issue of causation in this way expresses the relevant questions in a way that may differ from what was said by Mason CJ, in March v Stramare (E & M H) Pty Ltd [(1991) 171 CLR 506; 99 ALR 423] to be the common law’s approach to causation. The references in March v Stramare to causation being “ultimately a matter of common sense” were evidently intended to disapprove the proposition “that value judgment has, or should have, no part to play in resolving causation as an issue of fact”. By contrast, s 5D(1) treats factual causation and scope of liability as separate and distinct issues. [footnotes omitted]

[page 302]

In that case the respondent was shot on the appellant’s premises (a restaurant and nightclub). It was argued that the appellant was negligent for not having sufficient security on the premises for the New Year’s Eve function. The court explained that ‘the first of the two elements identified in s 5D(1) (factual causation) is determined by the “but for” test: but for the negligent act or omission, would the harm have occurred?’: at [45]. The court thought that the evidence did not prove that on the balance of probabilities additional security would have prevented the respondent from being shot: Security personnel may have been able to deter or prevent re-entry by the drunk or the obstreperous would-be patron willing to throw a punch. There was, however, no basis in the evidence for concluding that security staff at the entrance to the restaurant would have deterred or prevented the re-entry to the premises of a man armed with a gun when later events showed he was ready and willing to use the weapon on persons unconnected with his evident desire for revenge: at [47].

The respondent did not prove factual causation by pointing to the various possibilities that may have happened if the circumstances were different: at [50]. The court also pointed out that the ‘but for’ test was not satisfied merely because the injury suffered was the ‘very kind of thing’ the duty required the appellant to take reasonable steps to prevent: at [51]. 12.35 In Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420, the appellant was injured by a fall outside the respondent’s premises inside a shopping centre. The appellant walked with crutches due to a disability, and one of the crutches came into contact with a hot potato chip which was on the floor. This caused the crutch to slide and the appellant fell. The appellant alleged that the respondent was in breach of its duty of care by failing to institute and maintain a cleaning system to detect spillages and foreign objects within its sidewalk sales area. To prove factual causation, the appellant had to establish that had a periodic system of cleaning and inspection of the sidewalk sales area been implemented on the day of the incident, on the balance of probabilities the hot chip would have been detected and removed before she came into contact with it: at [32].

The Court of Appeal had held that it could not be concluded that it was more probable than not that the appellant would not have fallen had there been cleaning of the area at 15-minute intervals as well as employees of the respondent on the lookout for spillages. An assumption was made by the Court of Appeal that hot chips were more likely to be eaten at lunch time, the time of the incident. On appeal the High Court discussed factual causation under the civil liability legislation. The court noted that factual causation required ‘proof that the defendant’s negligence was a necessary condition of the occurrence of the particular harm’ and explained (at [20]): A necessary condition is a condition that must be present for the occurrence of the harm. However, there may be more than one set of conditions necessary for the occurrence of particular harm and it follows that a defendant’s negligent act or omission which is necessary to complete a set of conditions that are jointly sufficient to account for the occurrence of the harm will meet the test of factual causation within s 5D(1)(a) [Civil Liability Act 2002 (NSW)]. In such a case, the defendant’s conduct may be described as contributing to the occurrence of the harm.

[page 303] The High Court was of the opinion that although there may be more than one cause of a plaintiff’s loss, a defendant’s breach may still be a necessary condition of the harm and satisfy factual causation under the statute. 12.36 See also Zanner v Zanner (2010) 79 NSWLR 702, where the respondent was injured when her 11-year-old son, the appellant, was manoeuvring a car into the carport at their home. The appellant’s foot slipped causing the car to lurch forward and strike the respondent who was standing in front of the car. The appellant argued that it was the respondent’s conduct of allowing the appellant to move the car that was the cause of the accident. Applying the test for factual causation, ‘but for’ the appellant’s negligence in moving the car, the respondent would not have been injured and also, ‘but

for’ the respondent allowing the appellant to move the car, the respondent would not have been injured. Allsop P held (at [11]): … the notion of cause at common law can incorporate “materially contributed to” in a way which would satisfy the “but for” test. Some factors which are only contributing factors can give a positive “but for” answer. Both the driver who goes through the red light and the driver with whom he collides who is not paying attention contribute to the accident. If either episode of neglect had not occurred the accident would not have occurred.

12.37 In Wallace v Kam (2013) 250 CLR 375; 297 ALR 383, the appellant alleged that the doctor (respondent) had been negligent in failing to warn of material risks associated with an operation. The material risks were the possibility of local nerve damage (neurapraxia) and a 5 per cent risk of paralysis. The appellant did not suffer paralysis but did suffer local nerve damage. The evidence was that if the appellant had been warned of the possibility of local nerve damage, he would still have undergone the operation. However, if he had been advised of the one in 20 chance of paralysis, he would not have had the operation. It was held that the respondent had breached his duty of care by failing to warn the appellant of the material risks of physical injury that were inherent in the surgical procedure. This was a precondition to the harm suffered, as if warned the appellant would have chosen not to have undergone the surgical procedure and would not have sustained nerve damage. The High Court stated in a joint judgment (at [16]): The determination of factual causation in accordance with s 5D(1)(a) involves nothing more or less than the application of a “but for” test of causation. That is to say, a determination in accordance with s 5D(1)(a) that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence. [footnotes omitted]

The court held that the test whether the negligence was a necessary condition of the harm was ‘entirely factual, turning on proof by the plaintiff of relevant facts on the balance of probabilities’: at [14].

12.38 The court examined the factual causation of three scenarios in relation to a doctor breaching the duty to warn of material risks: (1) The patient would have chosen to undergo the treatment even if warned – no factual causation is established as ‘the negligent failure to warn can therefore be determined not to have caused the physical injury’: at [18]. [page 304] (2) The patient would not have chosen to undergo the treatment if warned – factual causation may be established as ‘absent the negligent failure to warn, the treatment would not have gone ahead at any time and the physical injury would not have been sustained’: at [19]. (3) The patient would have chosen not to undergo the treatment at the time, but may have chosen to undergo the treatment at a later time – factual causation is established. The court reasoned: Absent the negligent failure to warn, the treatment that in fact occurred would not have occurred when it did and the physical injury in fact sustained when the treatment occurred would not then have been sustained. The same treatment may well have occurred at some later time but (provided that the physical injury remained at all times a possible but improbable result of the treatment) the physical injury that was sustained when the treatment in fact occurred would not on the balance of probabilities have been sustained if the same treatment had occurred on some other occasion: at [20].

The evidentiary gap 12.39 If a plaintiff cannot establish that the negligence was a necessary condition of the occurrence of the harm they suffered, it may be possible to prove causation by an alternative route in limited circumstances if it is an exceptional case. The causation provisions of the civil liability legislation provide:

In deciding in an exceptional case, in accordance with established principles, whether a breach of duty — being a breach of duty that is established but which can not be established as satisfying subsection (1)(a) — should be accepted as satisfying subsection (1)(a), the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party in breach.

See Civil Liability Act 2002 (NSW) s 5D(2); Civil Liability Act 2003 (Qld) s 11(2); Civil Liability Act 2002 (Tas) s 13(2); Wrongs Act 1958 (Vic) s 51(2) (‘appropriate cases’); Civil Liability Act 2002 (WA) s 5C(2). The equivalent provisions in the Australian Capital Territory and South Australia do not refer to ‘exceptional’ or ‘appropriate’ cases, instead noting the situations in which a test other than the ‘but for’ test may be relied upon: Civil Law (Wrongs) Act 2002 (ACT) s 45(2); Wrongs Act 1936 (SA) s 34(2). There is no equivalent in the Northern Territory legislation. 12.40 However, the mere fact that causation cannot be established by application of the ‘but for’ test is not an exceptional case unless there is an evidentiary gap: Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420; Zanner v Zanner (2010) 79 NSWLR 702; Carangelo v New South Wales [2016] NSWCA 126. For example, in Powney v Kerang and District Health (2014) 43 VR 506, the plaintiff alleged that the defendant had negligently injected him and this caused an infection. The court held that as the plaintiff’s harm allegedly was the result of one tortious act and no question of any unknown aetiology, it was not an exceptional case that required the application of normative considerations to determine causation. See also Carangelo v New South Wales [2016] NSWCA 126 at [81]. [page 305] 12.41 In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; 260 ALR 628, it was pointed out that the phrase ‘exceptional case’ is not defined in the civil liability legislation and ‘[w]hether, or when, s 5D(2) [Civil Liability Act

2002 (NSW)] is engaged must depend, then, upon whether and to what extent “established principles” countenance departure from the “but for” test of causation’: at [54]. The High Court held (at [57]) that the case was not an exceptional one requiring consideration of whether responsibility should be imposed upon the party in breach. See also French v QBE Insurance (Australia) Pty Ltd (2011) 58 MVR 214, where the court held that causation had not been established under s 11(1)(a) of the Civil Liability Act 2003 (Qld) and the circumstances did not require s 11(2) to be applied: at [57]–[65]. 12.42 It is now established that relying upon proving causation in an exceptional case is limited to specific circumstances: Strong v Woolworths Ltd (t/as Big W) (2012) 246 CLR 182; 285 ALR 420; Zanner v Zanner (2010) 79 NSWLR 702. In Strong v Woolworths Ltd (t/as Big W), a majority of the High Court held that even if there is more than one factor contributing to the plaintiff’s loss, there is no need to apply the ‘exceptional case’ law as in subs (2) of the civil liability legislation. It was held (at [26]): [Subsection (2)] permits a finding of causation in exceptional cases, notwithstanding that the defendant’s negligence cannot be established as a necessary condition of the occurrence of the harm. Whether negligent conduct resulting in a material increase in risk may be said to admit of proof of causation in accordance with established principles under the common law of Australia has not been considered by this court. Negligent conduct that materially contributes to the plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, in accordance with established principles, be accepted as establishing factual causation, subject to the normative considerations to which [subsection (2)] requires that attention be directed. [footnotes omitted]

Referring to the Ipp Report4 and the decision of Zanner v Zanner (2010) 79 NSWLR 702, the joint judgment of French CJ, Gummow, Crennan and Bell JJ stated that the two situations which could be considered to be exceptional cases were where (at [25]): ‘the cumulative operation of factors in the occurrence of the total harm in circumstances in which the contribution of each factor to that harm

is unascertainable’ as in Bonnington Castings Ltd v Wardlaw [1956] AC 613; and the ‘negligent conduct that materially increases the risk of harm in circumstances in which the state of scientific or medical knowledge makes it impossible to prove the cause of the plaintiff’s harm’ as in Fairchild v Glenhaven Funeral Services Ltd [2002] 3 All ER 305; [2003] 1 AC 32 (see 12.46). 12.43 Therefore, exceptional cases are where there are multiple or complex causes, usually operating more or less simultaneously, and which often occur in the context of workplace or medical negligence cases. They are one of the most challenging questions in [page 306] the law of negligence when there has clearly been a breach of the duty of care but there is an evidential gap in the sense that it is not possible for the plaintiff to prove, on the balance of probabilities, that the defendant’s breach was a cause of the plaintiff’s damage. 12.44 In particular, these cases are distinguished by the fact that, because of limitations in medical knowledge, it is impossible for the plaintiff to surmount the ‘evidential gap’ and to prove, on the balance of probabilities, that the defendant’s negligence was a necessary cause of the plaintiff’s damage. In these cases, the courts have recognised that the better question to ask is whether, on the balance of probabilities, the defendant’s negligence made a ‘material contribution’ to the risk of the damage occurring: McGhee v National Coal Board [1973] 1 WLR 1; [1972] 3 All ER 1008; Bonnington Castings Ltd v Wardlaw [1956] AC 613. 12.45

The facts and decision by the House of Lords in McGhee v National

Coal Board [1973] 1 WLR 1; [1972] 3 All ER 1008 (McGhee) illustrate the problem of establishing causation in fact where the defendant’s negligence is, on a common sense basis, one of the causal factors, but it is impossible, on the balance of probabilities, to disentangle that cause from others. McGhee concerned a workman who was employed to empty pipe and brick kilns at a brickworks and who contracted dermatitis. In an action against the employers, the breach of duty alleged was failure to take reasonable care to provide adequate washing facilities, including showers. The employers admitted breach but argued the plaintiff had failed to prove that the breach caused contraction of the disease. The House of Lords acknowledged that there was an evidential gap in that the plaintiff’s medical evidence could not establish that, had he been able to wash immediately in showers provided by his employers, he would not have contracted the disease. Their Honours nevertheless held that, in the absence of complete medical knowledge of all the material factors relating to the disease, there was no substantial difference between materially increasing the risk of injury and making a material contribution to the injury. Therefore, the plaintiff was entitled to recover for an injury within the risk which the employer had created: compare Wilsher v Essex Area Health Authority [1987] QB 730; Hotson v East Berkshire Area Health Authority [1987] AC 750. The Australian High Court has applied McGhee in a series of cases, including Chappel v Hart (1998) 195 CLR 232; 156 ALR 517; Naxakis v Western General Hospital (1999) 197 CLR 269; Rosenberg v Percival (2001) 205 CLR 434. 12.46 The House of Lords confirmed the McGhee approach in Fairchild v Glenhaven Funeral Services Ltd [2002] 3 All ER 305; [2003] 1 AC 32 (Fairchild). In Fairchild, the plaintiffs contracted mesothelioma after being exposed to asbestos by successive employers. The nature of the disease is such that it is not known whether or not just one asbestos fibre can cause the disease as opposed to a cumulative exposure over a period of time. Therefore, the plaintiffs were unable to prove that ‘but for’ the negligence of any one employer they would not have contracted the disease, or that employment

with any one of the employers was ‘a necessary condition’ of the disease. Nevertheless, their Honours held that it was sufficient that the plaintiffs were able to establish, on the balance of probabilities, that each of the defendants had materially increased the risk that the plaintiffs would contract the disease. [page 307] 12.47 ‘Material contribution to the risk’ of harm or damage was considered again by the House of Lords in Barker v Corus (UK) Ltd [2006] 3 All ER 785; [2006] 2 AC 572. Their Lordships held that where a defendant had made a material contribution to the risk that the plaintiff’s husband would contract mesothelioma, then the fact that he had been self-employed for a period of time would be relevant only to the ascertainment of the degree of the ‘material contribution to the risk’ and to the quantum of the award damages. However, in Sienkiewicz v Greif (UK) Ltd; Willmore v Knowsley Metropolitan Borough Council [2011] 2 WLR 523 at [18], it was recognised that a ‘special rule’ as to causation for mesothelioma cases had been created by the decision of Fairchild: The special rule of causation applied to mesothelioma was devised because of ignorance about the biological cause of the disease. It was accepted in Fairchild’s case and Barker’s case that this rendered it impossible for a claimant to prove causation according to the conventional “but for” test and this caused injustice to claimants.

12.48 This was acknowledged by the High Court in Amaca Pty Ltd (under NSW administered winding up) v Booth; Amaba Pty Ltd (under NSW administered winding up) v Booth (2011) 283 ALR 461; 86 ALJR 172 (Amaca v Booth). French CJ commented that Fairchild had developed a ‘modified concept of causation’ which created a new head of tortious liability: at [52]. See also Gummow, Hayne and Crennan JJ at [80]–[81]. 12.49 Amaca v Booth involved an ‘exceptional case’; however, as the injury was a dust disease, mesothelioma, the civil liability legislation did not apply:

see 12.3. The legislation does not define ‘exceptional case’ but it does state that an exceptional case is to be decided ‘in accordance with established principles’. Amaca v Booth demonstrates the difficulty in establishing causation when the plaintiff has been exposed to asbestos from a variety of sources. The facts were that the plaintiff had been exposed to asbestos in the following situations: home renovations when he was a child; loading a truck as a youth; and as a mechanic working on brake linings from 1953 to 1983. The respondent sued the manufacturer of the brake linings in negligence for his contracting of mesothelioma. The New South Wales Dust Diseases Tribunal held that the asbestos in brake linings had materially contributed to the respondent’s contraction of mesothelioma. The Court of Appeal agreed that causation had been established. The High Court granted special leave to appeal on the issue of whether causation could be established by an increase in risk and whether the Court of Appeal had relied upon insufficient expert opinion evidence in respect of causation. The appellants argued that ‘it was not possible to say which exposures in fact made a material contribution to its development or when or why’: at [37]. The trial judge had assessed the appellants’ responsibility for the respondent’s exposure to asbestos that was additional to environmental background exposure as 10 per cent for Amaca and 20 per cent for Amaba. The appellants argued that this meant causation had been made out on a small increase in the risk of harm: at [39]. [page 308] French CJ stated that causation could not be established on an alleged increase in risk: at [41]. His Honour stated (at [42]–[43]): It is necessary, nevertheless, to reflect upon the relationship between risk and causation. In

ordinary usage “risk” refers to a hazard or danger or the chance or hazard of loss. Assessment of the risk of an occurrence is prospective in character. It can be expressed as an ex ante probability that the occurrence will occur. If quantifiable, that probability may be expressed numerically as a figure greater than “zero” up to “one” which denotes certainty. The range of probabilities may be traversed by terms such as “mere possibility”, “real chance”, “more likely than not”, “highly likely” and, ultimately, “certainty”. The existence of an association or a positive statistical correlation between the occurrence of one event and the subsequent occurrence of another may be expressed as a possibility, which may be no greater than a “real chance” that, if the first event occurs, the second event will also occur. The mere existence of such an association or correlation does not justify a statement, relevant to factual causation in law, that the first event “creates” or “gives rise to” or “increases” the probability that the second event will occur. Such a statement contains an assumption that if the second event occurs it will have some causal connection to the first. However, if the association between two events is shown to have a causal explanation, then the conclusion may be open, if the second event should occur, that the first event has been at least a contributing cause of that occurrence. An after-the-event inference of causal connection may be reached on the civil standard of proof, namely, balance of probabilities, notwithstanding that the statistical correlation between the first event and the second event indicated, prospectively, no more than a ‘mere possibility’ or ‘real chance’ that the second event would occur given the first event. [footnotes omitted]

In a joint judgment, Gummow, Hayne and Crennan JJ held (at [88]): The epidemiological evidence, considered by itself, did leave open the inference that cumulative exposure to asbestos increased the risk of contracting mesothelioma by developing bodily processes to an irreversible point. Further, as Dr Leigh emphasised in his report, inability to demonstrate epidemiologically a statistically significant increase in risk in motor mechanics, relative to other occupational categories, does not, in any way, negate a causal inference in an individual case where, beyond the general background environment, the only asbestos exposure was incurred in that occupation.

The majority held that causation had been established. Heydon J was a dissenting judgment and held that to prove causation the respondent had to establish that exposure to asbestos before his work as a mechanic ‘had not caused the irreversible changes in his body which led him later to display the symptoms of mesothelioma’ and that ‘some of the fibres to which he was exposed as a brake repairer were Amaca fibres (as distinct from the fibres of other brake manufacturers), and that they caused those changes in his body’: at [103]. His Honour noted (at [93]) that legislation may be more suitable than the common law action of negligence:

The extent of exposure to asbestos amongst those now living, the likely exposure amongst those yet to be born, and the likelihood of further injury taking place when asbestos is removed from the many places where it is now found, mean that problems of the kind thrown up in these appeals will remain for decades to come. Perhaps a social-medical problem of this size requires a legislative solution.

12.50 See also Amaca Pty Ltd v Ellis (2010) 240 CLR 111; 263 ALR 576, where material contribution was not relevant because a connection between exposure to asbestos and [page 309] the harm was not established. In that case, Paul Cotton, who had died from lung cancer, had commenced actions in negligence against two different employers, alleging that his employment had exposed him to asbestos, causing him to contract lung cancer. Cotton was also a smoker who had smoked on average 15 to 20 cigarettes a day for more than 26 years. There was no issue that a duty of care was owed and had been breached, but the High Court had to consider whether causation was established by applying the ‘but for’ test — ‘would Mr Cotton have contracted lung cancer but for the negligent exposure to asbestos?’: at [11]. The epidemiological studies considered by the court supported two conclusions: 1.

that it was ‘more probable than not’ that Cotton’s smoking was a necessary condition for his cancer; and

2.

that the risks associated with asbestos, ‘whether alone or in conjunction with smoking, are low and not sufficient to found the inference which the plaintiff sought to have made’ (that is, that it was more probable than not that Cotton’s exposure to asbestos fibres was a cause of the cancer): at [64].

Therefore, the court held (at [65]) that causation had not been established:

It was no t shown to be more probable than not that asbestos was a cause of (a necessary condition for) his cancer. It was not shown that exposure to asbestos made a material contribution to his cancer. Material contribution was not shown because a connection between Mr Cotton’s inhaling asbestos and his developing cancer was not demonstrated.

Multiple Tortfeasors 12.51 Where two or more defendants have caused the plaintiff’s damage, the defendants are referred to as concurrent (joint or several) or successive tortfeasors: see Chapter 21. In these situations, the courts have held that it is sufficient for the plaintiff to establish, on the balance of probabilities, that each defendant or tortfeasor materially contributed to the plaintiff’s damage. 12.52 In these cases, the difficulty is not that there is an evidential gap; instead, the difficulty is determining who should bear what proportion of the responsibility for the harm. These cases should not, therefore, be confused with the ‘exceptional cases’ discussed immediately above. In these cases, it is possible to establish that each tortfeasor’s negligence was a necessary condition of the plaintiff’s damage; the difficulty is the extent of the damage for which each tortfeasor should be held responsible. The distinction is illustrated by the case of Nilon v Bezzina [1988] 2 Qd R 420, where the plaintiff was involved in a motor vehicle accident in 1976 and, again, in another in 1982. In both accidents, the plaintiff suffered damage to his spine and brought an action against each defendant. The two actions were consolidated and heard together. The Queensland Court of Appeal rejected the first defendant’s argument that his liability for the injury to the plaintiff’s spine had ceased with the occurrence of the second accident. The court held that it was sufficient for the plaintiff to show, on the balance of probabilities, that a particular breach of duty had materially contributed to the injury complained of. The plaintiff was not obliged to go further and attempt to disentangle and identify with complete precision the relative contributions of each

[page 310] defendant to the plaintiff’s accumulated injury and loss: applying Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 620. The result was that the plaintiff’s 70 per cent disability was attributed equally to the two defendants: compare Faulkner v Keffalinos (1971) 45 ALJR 80; Baker v Willoughby [1970] AC 467; Joblins v Associated Dairies Ltd [1982] AC 794.

Onus of Proof 12.53 The onus of proof in regard to factual causation is upon the plaintiff and the burden of proof is on the ‘balance of probabilities’. Proof of causation may be established by inference in appropriate circumstances (Betts v Whittingslowe (1945) 71 CLR 637) and the common law rule of res ipsa loquitur is also relevant in the context of causation in fact: see, for example, TNT Management Pty Ltd v Brooks (1979) 23 ALR 345; Government Insurance Office (NSW) v Best (1993) Aust Torts Reports ¶81-210; West v Government Insurance Office (NSW) (1981) 148 CLR 62; 35 ALR 437. See also 11.98. 12.54 The civil liability legislation includes a restatement of this basic rule. For example, s 12 of the Civil Liability Act 2003 (Qld) provides: In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

See also Civil Law (Wrongs) Act 2002 (ACT) s 46; Civil Liability Act 2002 (NSW) s 5E; Wrongs Act 1936 (SA) s 35; Civil Liability Act 2002 (Tas) s 14; Wrongs Act 1958 (Vic) s 52; Civil Liability Act 2002 (WA) s 5D. There is no equivalent in the Northern Territory legislation. 12.55 The legislation goes further, adopting the recommendation of the Ipp Report,5 that where an issue in fact is what the plaintiff would have done if the defendant had not been negligent, then, for the purposes of factual

causation, this issue should be decided subjectively, but, nevertheless, should be decided without the benefit of the plaintiff’s testimony as to what he or she would have done had the defendant not acted negligently. This devaluing of the plaintiff’s testimony is consistent with the approach of the High Court in, for example, Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934, but goes further in entirely disallowing the plaintiff’s evidence in this regard. Section 11(3) of the Civil Liability Act 2003 (Qld) states: If it is relevant to deciding factual causation to decide what the person who suffered harm would have done if the person who was in breach of the duty had not been so in breach — (a) the matter is to be decided subjectively in the light of all relevant circumstances, subject to paragraph (b); and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

[page 311] See Civil Law (Wrongs) Act 2002 (ACT) s 45(3); Civil Liability Act 2002 (NSW) s 5D(3); Wrongs Act 1936 (SA) s 34(3); Civil Liability Act 2002 (Tas) s 13(3); Wrongs Act 1958 (Vic) s 51(3); Civil Liability Act 2002 (WA) s 5C(3). There is no equivalent in the Northern Territory legislation.

4

Scope of Liability

12.56 If factual causation is established, the third stage in proving the damage element in negligence requires a consideration of the scope of the defendant’s liability, referred to as ‘legal causation’. At common law, this stage is referred to as either ‘remoteness’ or ‘causation in law’. It involves the consideration of normative issues which, theoretically at least, is restricted to whether the kind of damage suffered by the plaintiff was a reasonably foreseeable consequence of the defendant’s act or omission.

12.57 The civil liability refers to these considerations as the scope of liability. For example, s 11 of the Civil Liability Act 2003 (Qld) states: (1) A decision that a breach of duty caused particular harm comprises the following elements – … (b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability). … … (4) For the purpose of deciding the scope of liability, the court is to consider (among other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of the duty.

See Civil Law (Wrongs) Act 2002 (ACT) s 45(1)(b), (4); Civil Liability Act 2002 (NSW) s 5D(1)(b), (4); Wrongs Act 1936 (SA) s 34(1)(b), (4); Civil Liability Act 2002 (Tas) s 13(1)(b), (4); Wrongs Act 1958 (Vic) s 51(1)(b), (4); Civil Liability Act 2002 (WA) s 5C(1)(b), (4). There is no equivalent in the Northern Territory legislation. 12.58 The civil liability legislation places no theoretical restrictions on the range of normative issues which may be considered when determining the appropriate extent, or scope, of a defendant’s liability. The only requirement is for the court to explain whether or not, and why, the negligent party should be held liable for the plaintiff’s damage. Recommendation 29 of the Ipp Report6 states: “Scope of liability” covers issues, other than factual causation, referred to in terms such as “legal cause”, “real and effective cause”, “commonsense causation”, “foreseeability” and “remoteness of damage”.

[page 312] In Wallace v Kam (2013) 250 CLR 375; 297 ALR 38 at [23], the High Court stated that the scope of liability requires a court to: … explicitly to consider and to explain in terms of legal policy whether or not, and if so why,

responsibility for the harm should be imposed on the negligent party. What is required in such a case is the identification and articulation of an evaluative judgment by reference to “the purposes and policy of the relevant part of the law” (Barnes v Hay (1988) 12 NSWLR 337 at 353, quoted in Henville v Walker (2001) 206 CLR 459; 182 ALR 37; [2001] HCA 52 at [98]).

See also the Ipp Report at [7.43] where reference is made to intervening acts that break the chain of causation. 12.59 Therefore, scope of liability, either under the common law or the legislation, involves a consideration of: whether the damage is too remote in law; whether there were any intervening acts; and whether the defendant’s breach was the legally significant cause of the damage. 12.60 The scope of the defendant’s liability will not always involve deep analysis. In Zanner v Zanner (2010) 79 NSWLR 702 at [66] (see 12.36), the appellant argued that ‘it was not appropriate for the scope of the first appellant’s liability to extend to the harm caused to the respondent as a consequence of his conduct’. The court disagreed, however, Allsop P stating (at [12]): This case does not demand any great agonising over the application of ss 5D(1)(b) and (4). All relevant considerations that inform the content of the appropriate scope of the negligent person’s liability and responsibility point to a positive conclusion as to causation and liability here. Injury to the mother was entirely foreseeable should negligence occur. The scope of the risk of harm protected by the duty and created by the breach included injury to the mother. The injury was not coincidental to the breach. It was the direct and immediate consequence of the negligence. The son in the car ran over his mother. The content of the duty and the attenuated standard of care were directed to the exercise of care to avoid injury to the mother in the very manner that occurred. There was no intervening act of a third party or of an abnormal event. The only other causal factor was the negligence of the person (the mother) to whom the duty was owed. There is no reason why the appropriate apportionment of respective responsibility is not best allocated through contributory negligence. Common sense would attribute the mother’s injury to the negligence of her son, as well as to her own negligence in putting herself in that position.

In Finch v Rogers [2004] NSWSC 39 at [148], Kirby J simply said:

I further believe that it is appropriate that the scope of the defendant’s liability extend to the harm so caused (s 5D(1)(b)). The consequences were in each case a foreseeable result of the breach.

See also French v QBE Insurance (Australia) Pty Ltd (2011) 58 MVR 214 at [55], where Fryberg J stated: I do not understand s 11(4) [Civil Liability Act 2003 (Qld)] to require a trial judge to reinvent the wheel in every case. I find no obligation in that provision to reconsider by way of normative analysis whether or not and why responsibility for the harm inflicted in this motor vehicle accident should be imposed on that driver. In an ordinary case it suffices for the purpose of

[page 313] deciding the scope of liability to observe that liability should be imposed because the case law requires it.

The High Court analysed the scope of liability in Wallace v Kam (2013) 250 CLR 375; 297 ALR 38. The court stated (at [22]): In a case falling within an established class, the normative question posed by s 5D(1)(b) is properly answered by a court through the application of precedent. Section 5D guides but does not displace common law methodology. The common law method is that a policy choice once made is maintained unless confronted and overruled.

Remoteness of Damage 12.61 A defendant will not be liable in negligence if the damage suffered by the plaintiff is too remote in law, that is, if it was not the reasonably foreseeable consequence of the defendant’s breach. In Wallace v Kam (2013) 250 CLR 375; 297 ALR 38, the High Court stated in relation to the scope of liability under the civil liability legislation, that liability for harm does not extend beyond that which was foreseeable at the time of the breach as ‘the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid’: at [24]. Prior to the development of reasonable foreseeability, the plaintiff’s

damage had to be the direct consequence of the negligence: Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560. 12.62 The reasonable foreseeability test in the context of the damage element of a negligence action provides that the damage is compensable if there was a real risk that the kind of damage suffered by the plaintiff could result from the defendant’s negligence. 12.63 The test of whether it was a real risk is whether it was a risk which would occur to the mind of a reasonable person in the defendant’s position, and would not be brushed aside as far-fetched or unlikely to occur: Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (Wagon Mound (No 2)) [1967] AC 617 at 641 per Lord Reid. 12.64 It is not necessary to foresee the chain of events leading to the damage, nor the exact type of damage nor the extent of the damage: Chapman v Hearse (1961) 106 CLR 112 at 120–1; Sydney Water Corporation v Turano (2009) 239 CLR 51; 260 ALR 20 at [46]. The High Court discussed the reasonable foreseeability test for remoteness in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 402; [1971] ALR 253 at 264, where Windeyer J said: Foreseeability does not mean foresight of the particular course of events causing the harm. Nor does it suppose foresight of the particular harm which occurred, but only of some harm of a like kind. That is well established by many cases, including Chapman v Hearse [(1961) 106 CLR 112] and Hughes v Lord Advocate [(1963) AC 837]. This comfortable latitudinarian doctrine has, however, the obvious difficulty that it leaves the criterion for classification of kinds of harm undefined and at large.

12.65 Over four decades later, there is still no more precise definition as to the meaning of reasonable foreseeability in the context of the damage element. As Spigelman CJ, with [page 314]

whom Sheller and McColl JJA agreed, commented in New South Wales v Godfrey (2004) Aust Torts Reports ¶81-741 at [81]: There is no authoritative exposition of the principle of remoteness. The case law affords no clear guidance on the application of the principle. It may be impossible to do so.

The ‘egg-shell skull’ rule 12.66 It is in this context of reasonable foreseeability that the ‘egg-shell skull’ rule falls to be considered. The rule provides that a tortfeasor must take the plaintiff as found: Smith v Leech Brain & Co Ltd [1962] 2 QB 405; Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152; Robinson v Post Office [1974] 2 All ER 737; [1974] 1 WLR 1176. This means that a defendant will be liable despite the fact that the plaintiff had a pre-existing susceptibility which caused the plaintiff’s damage to be far more severe than would otherwise be the case (Negretto v Sayers [1963] SASR 313) or that the effect of the injury renders the plaintiff more susceptible to further injury: Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006. 12.67 However, a defendant will not be liable for all damage. The operation of the ‘egg-shell skull’ rule is constrained by the requirement that it only applies to damage of the same kind as that which was reasonably foreseeable. Since there is no clear definition of when a particular damage is of the ‘same kind’, this can cause problems, especially in relation to psychiatric injuries. In Commonwealth v McLean (1996) 41 NSWLR 389, the plaintiff claimed damages for his post-traumatic shock after being a seaman on HMAS Melbourne when it collided with HMAS Voyager. He claimed that because of the negligent collision he drank and smoked to excess for the next 30 years causing him to develop throat cancer. The court stated (at 406): The “egg shell skull” principle makes a defendant liable for damage of an unforeseeable extent, but not for unforeseeable damage of a different kind. Under this principle a defendant is liable for additional damage of a foreseeable kind suffered by a plaintiff who has some special vulnerability. [footnote omitted]

12.68 In Kavanagh v Akhtar (1998) 45 NSWLR 588, the plaintiff’s left arm and shoulder were injured by the negligence of the defendant. The plaintiff and her husband were devout Muslims and when, as a consequence of her injuries, the plaintiff cut off her long hair because she was no longer able to care for it, her husband divorced her. As a result of these events, the wife became depressed and suffered a psychiatric illness. The New South Wales Court of Appeal applied the decision in Hird v Gibson [1974] Qd R 14, that a psychiatric injury caused by the break-up of the plaintiff’s marriage which, in turn, was caused by the nature of the injuries she suffered as a result of the defendant’s negligence, was held to be a reasonably foreseeable kind of injury. In Kavanagh v Akhtar, Mason P, with whom Priestley and Handley JJA agreed, applied the common law rule that it is not necessary that the exact sequence of events was foreseeable, merely that consequences of the same general character were reasonably foreseeable. Therefore, the fact that the husband’s reaction to his wife cutting her hair might have been ‘unusual’, it was sufficient that it was reasonably foreseeable in the family and cultural [page 315] setting within which the husband and wife lived. Mason P stressed that the principle that a defendant takes the plaintiff as found, includes the ‘particular psychological and familial situation of the injured plaintiff’: at 601.

Intervening Acts 12.69 It has been noted that the ‘but for’ test created difficulties when an act or omission after the defendant’s negligence also caused damage to the plaintiff, for example if the defendant’s negligent driving caused the plaintiff injury and when treated by the doctor, the doctor was negligent and made the

plaintiff’s injuries worse. ‘But for’ the defendant’s negligence, the plaintiff would not have needed medical treatment. 12.70 This is the area of novus actus interveniens — intervening acts. As it is possible for more than one cause to contribute to the plaintiff’s act and each satisfy the ‘but for’ test, it is a question of whether liability for the whole of the plaintiff’s damage, including the damage caused by the other party, should be imposed upon the defendant. The law recognises that some later acts or omissions may break the chain of causation, limiting the scope of the defendant’s liability. As it is a way of limiting the defendant’s liability, it may be considered as a question of the defendant’s scope of liability. 12.71 When the alleged intervening act is an act or omission of the plaintiff and it contributes to the plaintiff’s loss, prima facie the plaintiff’s conduct is contributory negligence. However, it is possible that the plaintiff’s negligence amounts to an intervening act. For example, in M’Kew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, the defendant’s negligence caused injury to the plaintiff’s leg and the plaintiff subsequently fell down some stairs. The court held that the plaintiff’s act of attempting to descend a steep staircase without assistance or a handrail broke the chain of causation between the defendant’s breach and the loss suffered by the plaintiff. 12.72 An intervening act may be conduct of the plaintiff, of a third party or even a natural phenomenon, such as a severe storm. In Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292, the ship Heimgar was damaged when the Carslogie negligently collided with it. Temporary repairs were made to Heimgar to enable it to sail to New York for full repairs, but on the voyage severe weather caused damage to the ship, rendering it unseaworthy. The court held that that storm broke the chain of causation between the Carslogie’s negligence and the loss of the use of the Heimgar. 12.73

One of the foundation cases is The Oropesa [1943] P 32. The case

involved a collision between two ships caused by the negligence of the Oropesa. The plaintiffs’ son worked on the other ship, the Manchester Regiment, and was in the lifeboat which the master of his ship launched to cross to the Oropesa to discuss salvage plans. The lifeboat capsized between the two ships, and their son drowned. The plaintiffs sued the owners of the Oropesa, alleging that their son’s death had been caused by the negligence of the Oropesa. The English Court of Appeal rejected the defendant’s argument that the decision of the master of the Manchester Regiment to cross between the ships in a lifeboat was a novus actus interveniens and held that there was an unbroken sequence of cause and effect between the negligence of the Oropesa and the death of the plaintiffs’ son. [page 316] Lord Wright (with whom Scott and MacKinnon JJ agreed) stated the principle as follows (at 39): To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic. I doubt whether the law can be stated more precisely than that.

12.74

In Haber v Walker [1963] VR 339 at 358, it was stated:

In the first place a wrongful act or omission cannot ordinarily be held to have been a cause of subsequent harm unless that harm would not have occurred without the act or omission having previously occurred with such of its incidents as rendered it wrongful. Exceptions to this first principle are narrowly confined. Secondly, where the requirements of this first principle are satisfied, the act or omission is to be regarded as a cause of the harm unless there intervenes between the act or omission and the harm an occurrence which is necessary for the production of the harm and is sufficient in law to sever the causal connexion. And, finally, the intervening occurrence, if it is to be sufficient to sever the connexion, must ordinarily be either — (a) human action that is properly to be regarded as voluntary, or (b) a casually independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence. [footnotes omitted]

12.75 Therefore, an act will break the chain of causation and the resulting harm will not be within the defendant’s scope of liability if: the alleged intervening act or omission is voluntary, deliberate or negligent; it is subsequent to the defendant’s negligence; and the alleged intervening act and its consequences are not the reasonably foreseeable consequence of the defendant’s negligence.

Voluntary, deliberate or negligent 12.76 In Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 429–30; 107 ALR 617 at 632, McHugh J stated that the causal connection between the defendant’s negligence and the plaintiff’s damage may be broken when subsequent conduct of another is ‘the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by defendant’.7 In Haber v Walker [1963] VR 339 at 358, it was held that in respect of causation, ‘voluntary’ did not have a wide meaning, ‘and for an act to be regarded as voluntary it is necessary that the actor should have exercised a free choice’. In that case the plaintiff’s husband committed suicide when mentally unstable as a result of serious injury sustained in an accident due to the negligence of the defendant. At first instance it was found by the jury that the suicide was not foreseeable and therefore broke the chain of causation. On appeal the court considered [page 317] whether the act of suicide was voluntary. It was held that when the plaintiff’s husband had committed suicide, due to his mental state, he was not acting of his free choice and it was not voluntary. Therefore the suicide did not break the chain of causation. See also Lisle v Brice [2002] 2 Qd R 168.

In Medlin v State Government Insurance Commission (1995) 182 CLR 1; 127 ALR 180, a university professor was seriously injured in a motor vehicle accident and five years later he voluntarily retired because of his own assessment of the effect of his injuries on his ability to function at work. In assessing his negligence claim, the trial judge did not allow for any loss of earning capacity. On appeal, the High Court held that the loss of earning capacity resulting from the retirement was caused by the professor’s injuries, and the voluntary retirement did not break the chain of causation. McHugh J held (at CLR 23; ALR 195) that the retirement would only be an intervening act if it was unreasonable in the circumstances and on the evidence the retirement was reasonable and was the result of the injuries sustained.

Foreseeable 12.77 The chain of causation is not broken if the alleged intervening act is the reasonably foreseeable result of the defendant’s negligence. For example, in State Rail Authority of New South Wales v Chu (2008) Aust Torts Reports ¶81-940, the respondent broke her ankle on the appellant’s premises. Approximately six weeks after the accident, the respondent was sexually assaulted by the person who was assisting her while she was incapacitated. The trial judge held that the appellant was liable for the loss arising from the assault as it was a foreseeable consequence of the appellant’s breach of duty. The judge’s reasoning was that if the respondent had not been injured, she would not have been relying upon help of her assailant and she would not have been suffering immobility. The New South Wales Court of Appeal disagreed, finding that the sexual assault was an intervening act. 12.78 In Chapman v Hearse (1961) 106 CLR 112, Dr Cherry stopped at the roadside to provide assistance to Chapman at the scene of a motor vehicle accident. As he reached Chapman, Dr Cherry was hit by another vehicle that was driven by Hearse. Dr Cherry was killed and his executor sought damages from Hearse for the benefit of Dr Cherry’s widow and children. Hearse claimed entitlement to contribution from Chapman if he was found liable.

Chapman argued that the negligent driving of Hearse broke the chain of causation between the original negligent act and the death of Dr Cherry. The court held that if a later act was wrongful, it did not necessarily break the chain of causation if that wrongful act was reasonably foreseeable in the circumstances. The joint judgment of Dixon CJ, Kitto, Taylor and Windeyer JJ stated (at 120): It is, we think, sufficient in the circumstances of this case to ask whether a consequence of the same general character as that which followed was reasonably foreseeable as one not unlikely to follow a collision between two vehicles on a dark wet night upon a busy highway. In pursuing this enquiry it is without significance that Dr Cherry was a medical practitioner or that Chapman was deposited on the roadway. What is important to consider is whether a reasonable man might foresee, as the consequence of such a collision, the attendance on the roadway, at some risk to themselves, of persons fulfilling a moral and social duty to render aid to those incapacitated or otherwise injured. As Greer LJ said in Haynes v Harwood (1935) 1 KB 146: “It is not necessary

[page 318] to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act” (1935) 1 KB, at p 156. (See also Hyett v Great Western Railway Co (1948) 1 KB 345 and Carmarthenshire County Council v Lewis (1955) AC 549.) Whether characterization after the event of its consequences as “reasonable and probable” precisely marks the full range of consequences which, before the event, were “reasonably foreseeable” may be, and no doubt will continue to be, the subject of much debate.

12.79 Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59 ALR 722 is an example of consequential negligent medical treatment. The plaintiff (Glogovic) sought damages from his employer, the respondent, for injuries sustained in the course of his employment. His injuries required medical attention and he was treated by the appellant, Dr Mahony. The respondent alleged that the appellant had been negligent in his treatment of the plaintiff and that this negligence had ‘caused or contributed to the continuing injuries and incapacities alleged by the plaintiff and for which he sues the [respondent]’. The High Court held (at CLR 528–9; ALR 725–6):

A negligent tortfeasor does not always avoid liability for the consequences of a plaintiff’s subsequent injury, even if the subsequent injury is tortiously inflicted. It depends on whether or not the subsequent tort and its consequences are themselves properly to be regarded as foreseeable consequences of the first tortfeasor’s negligence. A line marking the boundary of the damage for which a tortfeasor is liable in negligence may be drawn either because the relevant injury is not reasonably foreseeable or because the chain of causation is broken by a novus actus interveniens. But it must be possible to draw such a line clearly before a liability for damage that would not have occurred but for the wrongful act or omission of a tortfeasor and that is reasonably foreseeable by him is treated as the result of a second tortfeasor’s negligence alone. Whether such a line can and should be drawn is very much a matter of fact and degree … Where it is not possible to draw a clear line, the first tortfeasor may be liable in negligence for a subsequent injury and its consequences although the act or omission of another tortfeasor is the more immediate cause of that injury … [footnotes omitted]

12.80 As to negligent medical treatment, if it was reasonable for the plaintiff to seek and accept the treatment, unless the treatment was grossly negligent, the consequential medical negligence does not break the chain of causation. In Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522 at 529–30; 59 ALR 722 at 726–7, the court held: When an injury is exacerbated by medical treatment, however, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. Provided the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need not be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff’s subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given. It may be the very kind of thing which is likely to happen as a result of the first tortfeasor’s negligence. … However, in the ordinary case where efficient medical services are available to an injured plaintiff, the original injury does not carry the risk of medical treatment or advice that is “inexcusably bad”, or “completely outside the bounds of what any reputable medical practitioner might prescribe” or “so obviously unnecessary or improper that it is in the nature of a gratuitous aggravation of the injury” or “extravagant from the point of view of medical practice or hospital routine”. In such

[page 319] a case, it is proper to regard the exacerbation of a plaintiff’s condition as resulting solely from the grossly negligent medical treatment or advice, and the fact that the plaintiff acted reasonably

in seeking and accepting the treatment or in following the advice will not make the original tortfeasor liable for that exacerbation. [footnotes omitted]

Legally Significant Cause 12.81 It is under the scope of liability that a court will consider whether the defendant’s breach is the legally significant cause of the plaintiff’s loss. This will involve a consideration of policy and value judgments, often referred to as the ‘normative considerations’. Such considerations have always played a part in the negligence action, as pointed out at [7.43] of the Ipp Report.8 12.82 State Rail Authority of New South Wales v Wiegold (1991) 25 NSWLR 500 is an example where public policy was considered. In that case the respondent was awarded damages for personal injury sustained in the course of his employment with the appellant. After he had been injured, but before the trial, the respondent had been convicted of cultivating Indian hemp and served a prison sentence. Up until his imprisonment he had been on light duties, but as he could not attend work as he was in goal, he was dismissed by the appellant. The trial judge held that the respondent would have still been employed by the appellant and his criminal conduct was a result of his injuries and awarded damages for his loss of income. The respondent’s evidence was that due to his injuries he was not able to support his family and the growing of hemp was to supplement the family income. Therefore, had he not been injured, he would not have had to resort to the criminal activity and would not have been convicted and lost his job. Samuels JA (with whom Handley JA agreed) held (at 514) that the respondent could not be compensated for the loss of income after his conviction: If the plaintiff has been convicted and sentenced for a crime, it means that the criminal law has taken him to be responsible for his actions, and has imposed an appropriate penalty. He or she should therefore bear the consequences of the punishment, both direct and indirect. If the law of negligence were to say, in effect, that the offender was not responsible for his actions and should be compensated by the tortfeasor, it would set the determination of the criminal court at

nought. It would generate the sort of clash between civil and criminal law that is apt to bring the law into disrepute.

12.83 Kirby P (at 505) gave a dissenting judgment and was of the opinion that the respondent could be compensated for the loss of earnings: On the shifting sands of public policy, and without the guidance of plain speaking or binding authority, there is much room for difference of judicial opinion. Relevant to the determination of this issue is whether the community would be affronted by the conclusion which McInerney J reached in this case, with the advantages which he had as the trial judge. I do not believe, at least in the circumstances here, that there would be any such affront. This is not a case where the respondent was engaged in the much more serious offence of heroin use, still less

[page 320] trafficking in that illegal drug. Nor is it a case where the respondent reaped any actual financial advantage from what he did. It was open to McInerney J to find, as he did, that the resort to the growing of Indian hemp followed, in time, the termination of workers’ compensation benefits and the consequent actuality and future prospect of impoverishment of the respondent and his family. It was open to him to find that the appellant thereby fell victim to temptation. For that temptation, and the conduct which followed it, he was duly punished according to the criminal law. His Honour plainly felt that he should not be punished twice by then being denied the economic consequences which otherwise flowed from the injuries done to him by the negligence of the appellant.

12.84 This case considered public policy as part of the factual causation test as it was decided under the common law. Such considerations would now fall under the scope of liability in the civil liability legislation. The case demonstrates the difficulty that may arise when evaluating the normative considerations as they will involve value judgments. See also Hunter Area Health Service v Presland (2005) 63 NSWLR 22. 12.85 In Pledge v Roads and Traffic Authority (2004) 205 ALR 56; 78 ALJR 572 (see 12.29), three causes were identified as possibly contributing to the plaintiff’s injuries. In discussing causation, it was held that one of the possibilities, the danger posed by the parking bays, was so slight that it could

properly be ‘discarded from consideration in assessing legal responsibility’: at [13]. Hayne J explained (at [10]): The questions that are relevant to legal responsibility are first, whether, as a matter of history, the particular acts or omissions under consideration (here the acts or omissions which led to the presence of the foliage, and the parking bays, and the absence of warning signs) did have a role in the happening of the accident. It is necessary then to examine the role that is identified by reference to the purpose of the inquiry — the attribution of legal responsibility. It is at this second level of inquiry that it may be necessary to ask whether, for some policy reason, the person responsible for that circumstance should nevertheless be held not liable. [footnotes omitted]

12.86 Often the normative considerations relevant to establishing the duty of care in a novel case scenario will also be relevant to the defendant’s scope of liability. In Harvey v PD (2004) 59 NSWLR 639, the relevant facts were that the plaintiff, PD, became HIV-positive after she married a man who was HIV-positive. The plaintiff and her then fiancé, FH, together consulted one of the defendant doctors specifically for testing for sexually transmitted diseases, including HIV. The relevant negligence was that the doctor failed to advise that, because of legislative confidentiality requirements, they each needed to consent to the other being told of their test results. This failure to advise meant that, when PD was fraudulently advised by FH that his tests were also negative, they then married and had a child. It was at this time that PD discovered that she was HIV-positive and that she had contracted the disease from FH. The plaintiff successfully established that, had she known that FH could consent to her being given his results, she would have insisted on seeing them or would have refused to marry him. The case essentially concerned whether PD could recover from the defendant the costs of the child care she would eventually be unable to provide, not only for the child born of the marriage, but also for a second child she subsequently had with another HIV-positive man. Neither child was born HIV-positive. [page 321]

The New South Wales Court of Appeal unanimously held that the defendant’s negligent failure to advise as to the confidentiality requirements was a cause of PD’s HIV-positive status and, therefore, she could recover child care costs for the first child when she was no longer able to provide that care. Santow JA, with whose judgment Spigelman CJ agreed, said (at [106]): Vulnerability is an important factor if not a prerequisite for the protection afforded by the law of negligence, as is made clear by a long line of High Court decisions … In particular I consider that the appellants ought not escape the consequences of their negligence by reason of FH’s deceit, when it was itself not unforeseeable … The normative question to be asked is ought the defendant be held liable for the harm sustained, to which the answer remains yes.

In regard to the second child, born after PD knew she was HIV-positive, their Honours were unanimous in holding that, in common-sense terms, PD’s doctors were responsible for PD placing herself in the position of being likely to need child care for the second child. However, as Santow JA said (at [124]): That still leaves a second question, similar to the scope of duty analysis. That question is whether the doctors “ought to be held liable to pay damages for that harm”.

His Honour then referred to comments by the High Court in the novel duty case of Sullivan v Moody (2001) 207 CLR 562; 183 ALR 404 and continued (at [127]): Here there is no guiding principle which, without recourse as well to legal policy, suffices to answer the scope of duty question. In determining what is here the proper scope of the doctors’ duty of care (or the proper scope of their liability for the consequences of its breach) one must begin within the voluntary decision by PD to have a second child, knowing that she was HIV positive. [emphasis added]

His Honour held that PD’s decision to have another child did not break the chain of causation but, nevertheless, concluded, as did Spigelman CJ and Ipp JA, that the costs of the child care for the second child were not recoverable. An important reason for not allowing recovery of the child care costs for the second child was the indeterminacy issue, since there was no way to limit the number of children PD might have, or to guarantee that they would be born HIV-free. As Ipp JA said, ‘the law should not provide an incentive to

children being born in such circumstances’: at [233]. Santow JA also said, after referring to Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [5] and Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131, especially at [58]–[82]: In reaching this conclusion, I frankly acknowledge the part played by a concern which could now fairly be described as one of legal policy if not yet legal principle, namely that of indeterminacy. I should do so explicitly rather than mask what I am doing by mere labelling: at [145].

See also CS v Biedrzycka [2011] NSWSC 1213, where the court referred to the normative and policy considerations of the defendant’s scope of liability by simply referring to the discussion of whether a duty of care was owed (patient not informed by medical practice that results of HIV test not resolved, transmitting the disease to the plaintiff). [page 322] 12.87 The approach under the civil liability legislation conforms to that of the common law. Allsop P, in Zanner v Zanner (2010) 79 NSWLR 702 at [12], thought that it would be ‘an odd interpretation’ if the application of common sense was excluded from the scope of liability provisions in the legislation. Tobias J agreed, stating (at [79]): … this Court’s determination of whether it is appropriate for the scope of the first appellant’s liability to extend to the harm caused to the respondent, is to be considered as a matter of common sense taking into account any relevant policy considerations that might assist in determining whether or not, and why, responsibility for the harm to the respondent should be imposed upon the first appellant.

12.88 In the New South Wales Court of Appeal decision of Wallace v Kam [2012] NSWCA 82 at [12]–[13] (see 12.37), Allsop P gave detailed consideration to s 5D(1)(b) and 5D(4) of the Civil Liability Act 2002 (NSW) and compared the common law approach: The enquiry and conclusion under s 5D(1)(b) involve a value judgment. In circumstances where

s 5D(1)(a) has been satisfied, for the enquiry under (1)(b) to produce an answer that the scope of the liability of the medical practitioner in Dr Kam’s position should not extend to the harm that would not have occurred had he or she not been negligent, it is necessary that there be a conclusion either of the tenuousness of the factual link or some limitation by reference to the rule of responsibility involved. For instance, in Chappel v Hart [1998] HCA 55; 195 CLR 232 at 257 [66] and Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 460 [83], Gummow J gave the example of harm being caused by the misapplication of an anaesthetic in an operation that would not have taken place had the doctor disclosed some inherent medical risk. His Honour characterised the sheeting home of liability as (Chappel at 257 [66]) an “absurd” or “unjust” or (Rosenberg at 460 [83]) an “unacceptable” result that would prevent the law concluding that the negligence caused the harm. This analysis was, of course, at common law under the approach dictated by March v Stramare [(E & M H) Pty Ltd [1991] HCA 12; 171 CLR 506] in which value judgments form part of the process of reasoning about causation. The same kinds of value judgments attend the operation of s 5D(1)(b) (and s 5D(4)), as well as, in another context, s 5D(2). The drawing of a conclusion that a consequence of posited liability would be “unjust”, “absurd” or “unacceptable” would be relevant to the conclusion of appropriateness for s 5D(1) (b). Thus, to use the language of the statute, one might restate the point made by Gummow J in his Honour’s example by asking whether it is appropriate to extend liability to the defendant where his or her negligence only placed the plaintiff in the place at the time permitting a risk unrelated to that involved in the duty that was breached to come home. If the ceiling of the operating theatre falls in, if the surgeon collapses and strikes the patient, if the anaesthetist misapplies the anaesthetic, if any of countless other things, foreseeable or unforeseeable, go wrong with an operation, a value judgment, based on the rule of responsibility concerned (Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5; [1999] 2 AC 22) will have to be made, under s 5D(1)(b). It is in this enquiry that the relationship between the content of the duty (the rule of responsibility), the nature of the risk the subject of the duty and what harm occurred is important: March v Stramare at 516; Faulkner v Keffalinos [(1971)] 45 ALJR 80 at 86; H L A Hart and T Honoré, Causation in the Law (Oxford, 2nd Ed, 1985) at 122.

At common law, the ascription of a causal character to a factor without which the harm would not occur, rather than of a non-causal character as a mere condition placing the plaintiff at the place of the harm, depends ultimately on a value judgment (that may well be contestable) made by reference to such (overlapping and at times synonymous) factors as [page 323] the rule of responsibility and the legal policy underlying it, the content and

scope of the duty, the risk addressed by the rule and the duty, the character of the breach, the foreseeability or remoteness of the harm, the intervention of other factors (human and non-human) and their nature, and evaluative common sense. Such considerations also find their place in the enquiry in s 5D(1)(b). Causation is part of the legal analysis concerning whether to attribute legal responsibility and award compensation in a just and coherent way conformable with the legal rule at hand. 12.89 On appeal to the High Court, the members of the court agreed that the doctor was responsible for the appellant’s harm. The court held (at [36]– [37]): Consideration of a case involving the materialisation of one of a number of distinct risks of different physical injuries makes it necessary to return to the nature of the duty and the policy that underlies its imposition. The duty of a medical practitioner to warn the patient of material risks inherent in a proposed treatment is imposed by reference to the underlying common law right of the patient to choose whether or not to undergo a proposed treatment. However, the policy that underlies requiring the exercise of reasonable care and skill in the giving of that warning is neither to protect that right to choose nor to protect the patient from exposure to all unacceptable risks. The underlying policy is rather to protect the patient from the occurrence of physical injury the risk of which is unacceptable to the patient. It is appropriate that the scope of liability for breach of the duty reflect that underlying policy. The appropriate rule of attribution, or “rule of responsibility” to use the language of Allsop P, is therefore one that “seeks to hold the doctor liable for the consequence of material risks that were not warned of [and] that were unacceptable to the patient” (Wallace v Kam [2012] NSWCA 82 at [23], referring to Rosenberg v Percival (2001) 205 CLR 434 at [86]). The normative judgment that is appropriate to be made is that the liability of a medical practitioner who has failed to warn the patient of material risks inherent in a proposed treatment “should not extend to harm from risks that the patient was willing to hazard, whether through an express choice or as found had their disclosure been made” (Wallace v Kam [2012] NSWCA 82 at [19]).

The High Court dismissed the appeal, holding that any failure by the doctor to warn the appellant of the risk of paralysis could not be the ‘legal cause’ of the nerve damage (neurapraxia) that materialised: at [40].

Further Reading

Commonwealth of Australia, Review of the Law of Negligence — Final Report . R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 9. Honourable J Edelman, ‘Unnecessary Causation’ (2015) 89 ALJ 20. H L A Hart and T Honoré, Causation in the Law, 2nd ed, Clarendon Press, Oxford; Oxford University Press, New York, 1985. T Honoré, ‘Medical Non-Disclosure, Causation and Risk: Chappel v Hart’ (1999) 7 TLJ 1. [page 324] H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Chs 4 and 5. J Stapleton, ‘Lords a’Leaping Evidentiary Gaps’ (2002) 10 TLJ 276. —, ‘Causation-in-Fact and the Scope of Liability for Consequences’ (2003) 119 LQR 388. —, ‘Factual Causation’ (2010) 38 Fed L Rev 467.

1.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at (Recommendation 29).

2.

T Honoré, ‘Medical Non-Disclosure, Causation and Risk: Chappel v Hart’ (1997) 7 TLJ 1 at 8.

3.

See, for example, H L A Hart and T Honoré, Causation in the Law, 2nd ed, Clarendon Press, Oxford; Oxford University Press, New York, 1985.

4.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report),

October 2002, available at . 5.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

6.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

7.

H L A Hart and T Honoré, Causation in the Law, 2nd ed, Clarendon Press, Oxford; Oxford University Press, New York, 1985, p 136.

8.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

[page 325]

Chapter 13 Defences to Negligence 1

Introduction

13.1 If a plaintiff successfully establishes the elements of negligence, the onus is then upon the defendant to prove any defences. There are three main defences to an action of negligence: contributory negligence; volenti non fit injuria; and joint illegal enterprise. In addition to these defences, the civil liability legislation has introduced immunity from civil liability in certain circumstances. It is also possible for parties in a contractual relationship to agree to limit or exclude liability, a matter of interpretation of contract law. It is also possible that the relevant limitation period to bring the action in negligence has expired, providing the defendant with a defence: see Chapter 14.

2

Contributory Negligence

The Common Law Position 13.2 At common law, the defence of contributory negligence was a complete defence: Williams v Commissioner for Road Transport (1933) 50 CLR 258. If the defendant established that the plaintiff’s own negligence

contributed to the harm suffered, the plaintiff was denied a remedy. The negligence of the plaintiff took the form of either a breach of a duty to the defendant, or failure to take care for his or her own safety: Nance v British Columbia Electric Railway Co Ltd [1951] AC 601. For example, in Butterfield v Forrester (1809) 11 East 60; 103 ER 926, the defendant put a pole across part of the road outside his house so he could effect repairs to his house without interference from the road. The plaintiff was injured when, at twilight, he rode his horse into the pole. The plaintiff was riding his horse at speed while drunk. Lord Ellenborough CJ stated (at East 61; ER 927): Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.

[page 326] It was held that the plaintiff had failed to take ordinary care for his own safety; therefore, his action failed and no damages were awarded. As any amount of contributory negligence by the plaintiff denied any recovery to an otherwise blameless injured party, the rule operated very harshly. Therefore, its application was qualified in a number of ways by the courts to ameliorate this harshness.

‘Last opportunity’ rule 13.3 The ‘last opportunity’ rule was created, under which full recovery was still permitted by the plaintiff, particularly when at the material time there was substantial disparity in the positions of plaintiff and defendant. It was fair and reasonable not to regard the plaintiff as the author of his or her own injuries, notwithstanding some negligence, if the defendant had the ‘last opportunity’ to avoid the harm. In Alford v Magee (1952) 85 CLR 437, the Australian High Court required

the existence of a real opportunity of avoiding the damage which a reasonable person would have taken. The appropriate test became whether the defendant had the last real chance or opportunity to avoid the damage, but the test was not definitive.

‘Agony of the moment’ principle 13.4 A second means of avoiding the harsh application of the defence at common law was to apply the ‘agony of the moment’ principle. Under this principle, regard was had to the fact that the plaintiff may have been compelled to momentarily act negligently in the ‘agony of the moment’ due to a situation created originally, or substantially, by the defendant’s negligence: Municipal Tramways Trust v Ashby [1951] SASR 61.

Modern Contributory Negligence 13.5 In Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [16], McHugh J stated: … a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed.

The common law rules concerning contributory negligence as a complete defence have been replaced by statutory schemes that allow an apportionment of damages to take into account any negligence on the part of the plaintiff. Therefore, modern contributory negligence is not actually a defence. Instead, the apportionment legislation provides a scheme by which the damages recoverable by the plaintiff are reduced, based upon the plaintiff’s share of the responsibility for the damage. However, it is conventionally treated as a defence, usually referred to as a ‘partial defence’, and is included in this chapter for that reason. The civil liability legislation has also modified contributory negligence, imposing presumptions in specific circumstances: see 13.27.

13.6 The apportionment legislation abolishes the common law rule that contributory negligence defeats a claim. Section 10(1) of the Law Reform Act 1995 (Qld) states: [page 327] If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of the wrong of someone else — (a) a claim in relation to the damage is not defeated because of the claimant’s contributory negligence; and (b) the damages recoverable for the wrong are to be reduced to the extent the court considers just and equitable having regard to the claimant’s share in the responsibility for the damage.

See Civil Law (Wrongs) Act 2002 (ACT) s 102(1); Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 16(1); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7(1), (2); Wrongs Act 1954 (Tas) s 4(1); Wrongs Act 1958 (Vic) s 26(1); Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 4(1). The term ‘wrong’ in relation to the conduct of the defendant is defined in s 5 of the Queensland Act to mean: … an act or omission that — (a) gives rise to a liability in tort for which a defence of contributory negligence is available at common law; or (b) amounts to a breach of a contractual duty of care that is concurrent and coextensive with a duty of care in tort.

See Civil Law (Wrongs) Act 2002 (ACT) s 101; Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 8; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 15(1); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 3 (‘negligent wrongdoing’); Wrongs Act 1954 (Tas) s 2 (‘wrongfulact’); Wrongs Act 1958 (Vic) s 25; Law

Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 3A (‘negligence’). The definition of ‘wrong’ and its equivalent terms was amended to include a breach of a contractual duty that is concurrent and coextensive with a duty of care in tort after the High Court decision of Astley v Austrust Ltd (1999) 197 CLR 1; 161 ALR 155 held that the apportionment legislation did not apply to a claim for a breach of contract (failure to exercise reasonable care as an implied term of the contract) where the claimant was contributory negligent.

Establishing Contributory Negligence 13.7 When considering contributory negligence, it is not necessary that the plaintiff owe the defendant a duty of care: Contributory negligence differs from negligence. There is no duty of care owed to another person … and contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to risk: Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570; 25 ALR 481 at 487 per Mason J.

A defendant who alleges contributory negligence must prove: the plaintiff failed to take reasonable care; and the failure contributed to the foreseeable injury or loss suffered by the plaintiff. [page 328]

Plaintiff failed to take reasonable care 13.8 Whether a plaintiff has failed to exercise reasonable care is a question of fact that is judged in light of all of the circumstances. The standard is an objective one: Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [39]. 13.9 However, despite the application of the objective test to determine the standard, it has been noted that a more lenient standard of care was applied

to plaintiffs: Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 577–8 per Murphy J; Caterson v Commissioner for Railways (1973) 128 CLR 99. To overcome this leniency in favour of the plaintiff, it was recommended by the Ipp Report1 that it be legislated that contributory negligence was to be assessed against the same objective standard as applies in establishing breach by the defendant: Ipp Report at [8.11]–[8.13]. Section 23 of the Civil Liability Act 2003 (Qld) states: (1) The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm. (2) For that purpose — (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and (b) the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.

See also Civil Liability Act 2002 (NSW) s 5R; Civil Liability Act 1936 (SA) s 44; Civil Liability Act 2002 (Tas) s 23; Wrongs Act 1958 (Vic) s 5K; Civil Liability Act 2002 (WA) s 5K. There are no equivalent provisions in the legislation of the Australian Capital Territory and the Northern Territory. 13.10 The relevant standard of care may take into account characteristics of the plaintiff, as is done in an action of negligence, to achieve the reasonable standard of a person in the position of the plaintiff: see Chapter 11. 13.11 Children A child plaintiff will be judged according to the standard of a child of the same age, intelligence and experience: McHale v Watson (1966) 115 CLR 199. In New South Wales v Griffin [2004] NSWCA 17, the 13-year-old respondent was found not to be contributory negligent by participating in a fight with another student at school. The court held that the peer pressure on the respondent to fight would have been very strong, as the whole school was aware of the intended confrontation. Ipp J stated (at [9]):

The proposition that in those circumstances the respondent should not have turned up to fight the other boy is, in my view, quite unreasonable. Had he taken this course he would have had to face the charge of cowardice and he would have become notorious throughout the school.

[page 329] In my view the standard of conduct suggested bears no relationship with what should be expected of a 13 year old boy.

In Doubleday v Kelly [2005] NSWCA 151, the plaintiff, aged seven, was injured when she attempted to roller skate on a trampoline when visiting a friend’s home. At the time of the accident, the plaintiff was unsupervised by the defendants, the parents of the friend. The day before the accident, the defendants had warned the children not to go near the trampoline. The trial judge held that there was no contributory negligence on the part of the plaintiff when her age and experience were taken into account, citing McHale v Watson, above, and s 5R of the Civil Liability Act 2002 (NSW). The Court of Appeal agreed, holding that the provision did not alter the common law position and that a seven-year-old child would not have perception of the danger: at [26]. In Waverley Council v Ferreira (2005) Aust Torts Reports ¶81-818, the court referred, with approval, to Doubleday v Kelly and held that a 12-yearold boy would not perceive the danger in climbing onto the roof of a building and sitting on a skylight. See also Manly Council v Byrne [2004] NSWCA 123, where the Court of Appeal agreed with the trial judge’s reasoning that the 13year-old plaintiff had failed to take reasonable care of her own safety when diving into a public pool. There was evidence that she had ‘extensive training and experience in water activities’ (at [113]) and had dived into a pool when she could not see its depth and without checking its depth. In Verryt v Schoupp (2015) 70 MVR 484, the respondent was two months from turning 13 years old when he was seriously injured while skitching (holding onto a motor vehicle as he rode his skateboard). The car was being

driven by the father of one of the respondent’s friends and the respondent was not wearing a helmet. The respondent fell off his skateboard and hit his head on the road. The appeal court held that the respondent’s appreciation of the risk involved in skitching was to be assessed at the time of the incident, not after with the benefit of hindsight. In respect of the behaviour of a 12year-old boy, Meagher JA delivering the judgment for the court, stated (at [61]–[62]): … a reasonable 12-year-old in his position would have appreciated was dangerous; in each case because of the risk of losing balance at speed and landing awkwardly on the roadway. At the same time it may readily be accepted, as was emphasised in McHale, that a 12-year-old boy is unlikely to perceive as a realistic prospect the risk of a serious injury such as was sustained by the respondent. A 12-year-old is optimistic and likely to be oblivious to the real and everpresent prospect of such an injury. In the somewhat wistful language of Kitto J, that degree of sense and circumspection is one ‘which nature ordinarily withholds till life has become less rosy’.

The court found that the respondent had failed to act with reasonable care in the circumstances. 13.12 Intoxication The civil liability legislation creates a presumption of contributory negligence if the plaintiff was intoxicated: see 13.33. However, if the legislation does not apply, the law is that an intoxicated plaintiff is to be judged against the standard of a reasonable sober person: Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137. In the High Court decision of Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137, one of the issues the court had to consider was whether the respondent was guilty of [page 330] contributory negligence at common law. The appellant and respondent had been at a party, the respondent had arrived at 9.00 pm, had drunk until 4.00

am and then had gone to sleep in his utility. The appellant also was drinking at the party and the evidence was that, at about 4.30 am, she was seen to be ‘quite drunk and staggering about’: at [9]. She then went to sleep next to the respondent’s utility. When they woke up, about three hours later, they travelled together to Mildura to have breakfast. On the way back from breakfast, the appellant noticed the respondent (who was driving) was dozing off so they stopped and the appellant took over the driving. She did not have a driver’s licence, having lost it for drink driving over three years previously. Shortly after taking over the driving, the appellant lost control of the vehicle and the respondent suffered severe injuries. The court held that it was not a question of whether a reasonable person in the intoxicated passenger’s condition would realise the risk of accepting a risk, but whether an ordinary reasonable person — a sober person — would have foreseen that accepting a lift from an intoxicated driver would expose them to risk of injury. It was held to be irrelevant that intoxication meant that the plaintiff could not appreciate the risk of harm: at [39]. It was held that a reasonable person would have foreseen that, as a passenger in a car driven by the appellant, they would be exposed to the risk of serious injury. The evidence was that the vehicle was defective (it had a tendency to roll and the speedometer was broken), combined with the fact that the appellant had not driven for over three years, she had drunk a large amount of alcohol and had had very little sleep, indicating that she was unfit to drive. Therefore, the respondent was found to be guilty of contributory negligence. The matter was resubmitted to the New South Wales Court of Appeal, where it was held that the respondent’s damages should be reduced by 60 per cent rather than the original decision of reducing them by 25 per cent: Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA 121. 13.13 It is the relevant facts and circumstances that a reasonable person would have observed or otherwise that will be relevant in determining what

could have been expected from the plaintiff in the circumstances. Ignorance of facts that a reasonable person would have ascertained does not allow a plaintiff to escape a finding of contributory negligence. 13.14 Emergency It may be that a sudden emergency created by the defendant renders the plaintiff’s conduct reasonable in the circumstances. This is sometimes described also as the doctrine of alternative danger (Caterson v Commissioner of Railways (1973) 128 CLR 99 per Gibbs J) or the rule in The Bywell Castle (after Lord Justice Cotton’s statement of the rule in the shipping case London Steamboat Co v Bywell Castle (owners of) (1879) 4 PD 219 at 228). For example, in Shelley v Szelley [1971] SASR 430 at 432, Bray CJ (with whom Sangster AJ agreed on this point) said: … the conduct of the party acting in an emergency may be viewed with more latitude, since in such cases there is almost an element of estoppel: “it is not in the mouth of those who have created the danger of the situation to be minutely critical of what is done by those whom they have by their fault involved in danger” … If this is correct then the [plaintiff’s] conduct would be viewed more indulgently than that of the [defendant], once granted that the [defendant] was guilty of negligence prior to the [plaintiff] seizing the wheel, which negligence was in part at least the cause of what the [plaintiff] did.

[page 331] In that case, the plaintiff had been a passenger in the defendant’s car and was dozing in the front passenger seat when one of the car’s tyres burst. The defendant took his foot off the accelerator and waited for the car to slow down without applying the brakes. The plaintiff woke up and saw that the car was heading off the road on the wrong side, and commented it was going off the road. The defendant smiled at the plaintiff without speaking. The plaintiff then grabbed the steering wheel of the car causing the car to run off the road and overturn, injuring the plaintiff. The Full Court of the Supreme Court of South Australia held unanimously

that the defendant had been negligent and that the plaintiff had not been guilty of contributory negligence. 13.15 Employment The courts are particularly conscious, when dealing with cases involving employment relationships, to ensure due recognition is taken of the employer’s responsibility in respect of the place and system of work: Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234. This is reflected in cases where employee conduct is characterised as mere inattention rather than contributory negligence: McLean v Tedman (1984) 155 CLR 306; 56 ALR 359; Commissioner of Railways v Ruprecht (1979) 142 CLR 563; 25 ALR 481. In Hughes v Tucaby Engineering Pty Ltd [2011] QSC 256 at [19] it was noted: It is necessary then that the defendants point to something, other than an everyday risk that is commonly avoided, as justifying a finding of contributory negligence.

In that case, the plaintiff was injured at work when he stepped over a lowslung chain hanging across a doorway that was used to bring machinery into the workshop. The defendant argued that the plaintiff was contributory negligent as he had failed to use an alternative and available means of egress from the workshop. It was also alleged that he could have removed the chain from the hook to walk through or ducked under the chain or that the plaintiff by not breaking his stride caused the fall. The Queensland Supreme Court held that the plaintiff was not contributory negligent in taking the most direct and shortest route to access the machinery, stating (at [25]): … was he obligated to pause, consider and carefully weigh up the issue? I cannot see that the exercise of reasonable care requires that much. There first needed to be some trigger to make him realise that he ought to pause and weigh up things before simply stepping forth. The defendants had not thought to issue any instruction to workers concerning the chain as a particular hazard. Why should that reasonably be expected to occur to a worker in the course of his working day and when engrossed in his task?

13.16 The preferential treatment has even extended to cases where the plaintiff employee knows the conduct is highly dangerous, but it is still not held to be contributory negligence unless the employee knew, or ought to

have known, that his or her highly dangerous conduct was not part of his or her duties: Commissioner for Railways v Halley (1978) 20 ALR 409. See also Czatyrko v Edith Cowan University (2005) 214 ALR 349; Osborne v Downer EDI Mining Pty Ltd [2010] QSC 470. 13.17 Breach of the standard Once the standard required of the plaintiff has been determined, the calculus of negligence will be relevant in answering the question of whether the plaintiff was negligent in the circumstances: see 13.8. Evidence would be required as to the probability and seriousness of harm, the burden of taking precautions and the social utility of the activity, among other relevant things: see Chapter 11. [page 332] 13.18 As with an action in negligence, the conduct of the plaintiff should not be assessed with the benefit of hindsight. For example, in Hirst v Nominal Defendant [2005] 2 Qd R 133, the plaintiff police officer was injured when pursuing an unidentified vehicle at high speed. The Court of Appeal agreed with the trial judge’s statement that with ‘the benefit of hindsight … a pursuit was unreasonably taken’: at [39]. However, in the circumstances, it was held that: … the decision to persist in the pursuit was deliberate. It was a decision which only Mr Hirst could make in the sense that it was part of his duty to make it. It was a decision which he was trained to make and he admitted that he was conversant with the policy in the Operations Manual which informed him of the need to make his decision on the basis that the paramount consideration was the safety of all users of the road. It was a decision with significant consequences for the safety of all users of the highway including himself. The making of this decision was very much part of his duty. He knew there was the vehicle in front of him (being driven by Mr Weldon) and, because of the topography he did not know whether there was a vehicle coming the other way, as in fact there was. In these circumstances, I consider that the learned primary judge was correct to conclude that this decision further to escalate the danger was unreasonable, and not merely an error of judgment: at [44].

The plaintiff was held to be contributory negligent with one third of

liability apportioned against him.

Causation and foreseeability 13.19 In proving causation, the evidence must show that the plaintiff’s failure to take reasonable care contributed to their loss, in that either the loss would have been avoided or reduced. This is a question of fact that requires the application of common sense. In Fitzgerald v Penn (1954) 91 CLR 268 at 277, it was stated by the majority, ‘[a] jury probably does not need to be told that the absence of a tail light could not operate to cause a head-on collision even at night’. A plaintiff’s conduct may be causally relevant in three ways: 1.

The plaintiff’s own carelessness is the cause of the accident. In Griffiths v Doolan [1959] Qd R 30, the accident was caused by a child plaintiff running on to the road. See also Axiak v Ingram [2011] NSWSC 1447. In Poole v State Transport Authority (Rail Division) (1982) 31 SASR 74, a passenger jumped from a train.

2.

The plaintiff’s conduct increased the risk of the harm. In Azzopardi v State Transport Authority (Rail Division) (1982) 30 SASR 434, the risk of injury was increased by the fact that the bus passenger failed to use the hand grip.

3.

The plaintiff’s conduct aggravated the damage caused by the defendant’s negligence. A common example is the failure to use a safety device. In Eagles v Orth [1975] Qd R 197, the plaintiff was not wearing a safety belt in a car and in Kirk v Nominal Defendant [1984] 1 Qd R 592, a pillion passenger was not wearing ‘tough clothing’.

13.20 It is not necessary that the plaintiff’s negligence contributed in any way to the accident itself, only the harm suffered: O’Connell v Jackson [1971] 3 All ER 129 (plaintiff found to be contributory negligent although their failure to wear safety helmet did not itself

[page 333] contribute to the accident). See also Froom v Butcher [1976] QB 286; Hallowell v Nominal Defendant (Qld) [1983] 2 Qd R 266. In Monie v Commonwealth [2007] NSWCA 230, the appellant had relied upon the assistance of the Commonwealth Employment Service (CES) to find an employee for his family farm. The person who applied, Winsor, was interviewed briefly before being hired. Winsor had a criminal record, including a term of imprisonment for assault occasioning bodily harm from which he had only recently been released. This information was not provided to the appellant. After three months of working on the farm, Winsor shot the appellant four times. The appellant sued the respondent in negligence, alleging that there had been a breach of duty by the CES in failing to disclose Winsor’s criminal history. The trial judge held that the appellant had failed to make reasonable enquiries about Winsor and, therefore, was contributory negligent. On appeal, it was found that the appellant had been careless by failing to ask Winsor about his previous work experience and whether he had the skills necessary for farm work. However, that carelessness was linked to the appellant’s economic interests and was not causally connected to the loss suffered by the appellant: at [99]. In Gent-Diver v Neville [1953] St R Qd 1, the plaintiff accepted a lift with the defendant knowing that the headlights of the motorbike were not in working order. The plaintiff was injured in an accident on the motorbike, but was found not to be contributory negligent as the accident was due to the defendant failing to drive reasonably, not the defective headlights. See also Ragg v Palmer [2016] NSWDC 14 (no evidence that a failure by 11-year-old plaintiff to wear seatbelt contributed to the leg injuries suffered from being thrown against a fence).

Apportionment 13.21 Upon a finding of contributory negligence, the apportionment legislation directs the court to reduce the damages recoverable to the extent it thinks ‘just and equitable’, having regard to the plaintiff’s share in the responsibility for the damage: see 13.6. In Western Australia, it is to the extent the court thinks ‘just in accordance with the degree of negligence attributable to the plaintiff’: Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 4(1).

‘Just and equitable’ 13.22 In determining what is ‘just and equitable’ in the circumstances, the court has a wide discretion. The court will assess and compare the culpability of the plaintiff and the defendant in terms of departure from the standard of reasonable care: Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492. In Pennington v Norris, culpability was explained (at 16): It seems clear that this must of necessity involve a comparison of culpability. By “culpability” we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man. To institute a comparison in respect of blameworthiness in such a case as the present seems more or less impracticable because, while the defendant’s negligence is a breach of duty owed to other persons and therefore blameworthy, the plaintiff’s “contributory” negligence is not a breach of any duty at all, and it is difficult to impute ‘moral’ blame to one who is careless merely of his own safety.

[page 334] 13.23 In Pennington v Norris, the plaintiff claimed damages for personal injuries sustained when he was struck by the motor vehicle driven by the defendant. The trial judge apportioned culpability 50/50 but, on appeal, in assessing what was ‘just and equitable’ apportionment, the High Court found the comparison of culpability to be 20/80. The court was influenced by

various factors surrounding the accident, not just the conduct of the parties. It was noted by the court that the accident took place on a misty night after it had been raining. The defendant’s windscreen was misty on the inside and the outside, impairing visibility. It was closing time of pubs, there being three pubs in the vicinity, and there were quite a number of people about in the area. At the time of the accident, the defendant was travelling at 30 miles per hour. The court thought that whereas the plaintiff’s conduct exposed himself to risk of injury, the defendant’s conduct exposed not only the plaintiff but also others to a risk of injury. The following remarks were made (at 16): Here, in our opinion, the negligence of the defendant was in a high degree more culpable, more gross, than that of the plaintiff. The plaintiff’s conduct was ex hypothesi careless and unreasonable but, after all, it was the sort of thing that is very commonly done: he simply did not look when a reasonably careful man would have looked. We think too that in this case the very fact that his conduct did not endanger the defendant or anybody else is a material consideration. The defendant’s position was entirely different.

13.24 The principles stated in Pennington v Norris were added to in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532–3; 59 ALJR 492 at 494, where the High Court unanimously adopted the following embellishment: The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie, of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to a comparative examination.

In Schimke v Clements (2011) 58 MVR 390, the plaintiff’s husband was killed when the car he was driving collided with a trailer being towed by the defendant’s vehicle. The accident took place on a single lane bridge — at the south end of the bridge there was a give way sign, at the north end a sign stating no overtaking or passing. The court found that both drivers had failed to exercise reasonable care when driving. The deceased driver had failed to exercise reasonable care to avoid a collision with a vehicle approaching the

bridge and the defendant had failed to act reasonably by driving at an excessive speed for the circumstances and assuming that the other vehicle would stop at the give way sign. Applegarth J assessed the deceased driver’s responsibility at 65 per cent and the defendant’s at 35 per cent, stating (at [64]–[66]): I accept that the negligence of each driver arose, in part, because of errors of judgment about the conduct of the other vehicle and, unreasonably in the circumstances, each driver assumed that he was not required to yield way to the other. However, the task of apportioning liability

[page 335] is not resolved simply by characterizing each driver as having committed a similar, serious error of judgment. I do not accept the plaintiff’s submission that this is a case that calls for equal apportionment once I find that the deceased was not entitled to proceed across the bridge in the circumstances. I consider that the deceased’s departure from the standard of care required of him was greater than the departure from the standard of care required of the first defendant. Even if the deceased’s failure to yield right of way was not a contravention of s 70 of the [Transport Operations (Road Use Management — Road Rules) Regulation 1999 (Qld)], as literally construed, it was a serious departure from the standard to be expected of a driver in his position. Apportionment is not determined by the obvious fact that if the deceased had yielded right of way the collision would have been avoided, any more than the fact that the collision would have been avoided had the first defendant reduced his speed sooner and kept his vehicle and trailer under control so that he could bring both units to a halt and avoid a collision. Still, the deceased’s negligence was causatively potent because it committed him to the course of attempting to reach the other side of the bridge. Although it was not negligent of him to fail to stop on the bridge, his decision to cross the bridge led him to a further decision to attempt to complete the crossing. His negligent failure to yield right of way literally led him into a danger zone in which he had limited options to avoid a head on collision.

The reasonableness of the conduct must be judged in the light of all the circumstances: Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137; Morton v Knight [1990] 2 Qd R 419; Caterson v Commissioner for Railways; Sibley v Kais (1967) 118 CLR 424; Sungravure Pty Ltd v Meani (1964) 110 CLR 24. In Verryt v Schoupp (2015) 70 MVR 484, the appellant appealed the finding of

the trial judge that the defence of contributory negligence failed as apportionment was assessed as 100 per cent to the appellant. On appeal the court noted the respondent’s appreciation of the danger of participating in skitching as a 12-year-old, but took into account the fact that an adult — the appellant driver — was condoning the activity. It was noted (at [62]): It is also the case, as the primary judge rightfully emphasised, that a 12-year-old boy would likely gain comfort from the fact that the activity was one that the adult father of his neighbourhood friend had agreed to participate in. That participation would have confirmed in the boy’s mind that the activity did not involve unacceptable risks of injury.

As to the appellant’s conduct, the court held (at [63]–[64]): Most importantly, the appellant was responsible for the safe operation of the vehicle. He must be taken to have appreciated that “skitching” involved significant risks of injury, including of the kind that occurred. As the driver of the vehicle, the appellant was in the position to prevent the activity and should not have allowed it to occur. Not only did he fail in that respect; he also allowed it to proceed aware that none of the boys was wearing a helmet. For these reasons, the appellant must bear by far the greater responsibility for the injuries sustained by the respondent. … A sufficient allowance for the respondent’s lack of care for his own safety is reflected in a reduction of his damages by 10 percent.

[page 336]

Contributory negligence may defeat a claim 13.25 In Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25; 72 ALJR 65, it was held that it was not possible to apportion 100 per cent to a party under the New South Wales apportionment legislation. The High Court held (at ALR 29; ALJR 68) that: … no matter how culpable the claimant may be, if the damage results from the fault of the person who suffers the damage and the fault of another, it is not possible to say that the damages recoverable in respect of that damage are to be not simply reduced but are to be entirely eliminated. Such an outcome cannot be justified as “just and equitable having regard to the claimant’s share in the responsibility for the damage” for it is an outcome which holds the claimant wholly responsible, not partly so.

Before this decision, it was thought that it was within the jury’s or court’s

discretion to apportion within the full range from 0–100 per cent: see Chapman v Hearse (1961) 106 CLR 112 at 123. 13.26 The civil liability legislation, in some jurisdictions, has reintroduced the possibility of 100 per cent apportionment. For example, s 24 of the Civil Liability Act 2003 (Qld) states: In deciding the extent of a reduction in damages by reason of contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.

See also Civil Law (Wrongs) Act 2002 (ACT) s 47; Civil Liability Act 2002 (NSW) s 5S; Wrongs Act 1954 (Tas) s 4(1); Wrongs Act 1958 (Vic) s 63. Therefore, it is technically possible that a defence of contributory negligence may defeat a claim. Although no decision has yet successfully imposed a reduction of 100 per cent for contributory negligence, a few defendants have argued its application. See Harmer v Hare (2011) 59 MVR 1, where the defendant argued that a finding of 100 per cent contributory negligence was appropriate in the circumstances. The defendant had allowed the plaintiff to drive his car in wet conditions knowing it had bald tyres and the defendant, basing the arguments on the findings of the trial judge that the state of the tyres was apparent, argued that a reasonable person in the position of the plaintiff would have known or ought to have known that the only precaution to avoid the risk of harm was not to drive the vehicle. The trial judge’s findings as to contributory negligence were overturned, the court holding that it was not negligent of the plaintiff not to have inquired as to the vehicle’s condition or to have failed to inspect it before driving. Special leave to appeal was refused by the High Court: [2012] HCASL 21. See also Davis v Swift (2014) 69 MVR 375 (100 per cent reduction altered to 80 per cent upon appeal as ‘in the range of possible departures from that standard of care, the appellant’s conduct is not an example of a worst possible case’: at [52]).

Legislative Presumptions of Contributory

Negligence 13.27 Legislation exists, in all jurisdictions, which requires a finding of contributory negligence in certain circumstances, and may even specify the percentage by which the plaintiff’s damages are to be reduced. Usually, the circumstances involve the use of a motor vehicle. [page 337]

Failing to use a required safety device 13.28 Under normal circumstances, a failure to use or wear safety equipment, such as a seatbelt or safety helmet, will be an important factor if the lack of the safety device contributed to the plaintiff’s injuries: Eagles v Orth [1975] Qd R 197; Hallowell v Nominal Defendant (Qld) [1983] 2 Qd R 266. 13.29 In some motor vehicle legislation, it is required for a court to make a finding of contributory negligence if the plaintiff was not wearing a seatbelt or safety helmet at the time of the accident. For example, s 138(2)(c) of the Motor Accidents Compensation Act 1999 (NSW) mandates a finding of contributory negligence and a reduction in damages as the court thinks ‘just and equitable’ if the plaintiff is not a minor. See also Civil Law (Wrongs) Act 2002 (ACT) s 97 (presumption of contributory negligence of persons over age of 16 and damages reduced as is just and equitable); Civil Liability Act 1936 (SA) s 49 (presumption of contributory negligence and damages to be reduced by 25 per cent); Motor Accidents (Liabilities and Compensation) Act 1973 (Tas) s 22(3) and (4) (damages reduced by 15 per cent or more if just and equitable if plaintiff over 16 years and not wearing a seatbelt). See Allen v Chadwick (2015) 326 ALR 505 (plaintiff’s damages reduced by 25 per cent for failing to wear a seatbelt).

13.30 In those jurisdictions where a finding of contributory negligence is required but no fixed statutory reduction is specified, a court may still reduce the damages by zero if it is just and equitable in the circumstances: Nicholson v Nicholson (1994) Aust Torts Reports ¶81-310.

Intoxication and drugs 13.31 If a plaintiff is injured and either they or the defendant were intoxicated at the time, the defendant may raise the defence of contributory negligence. The basis for such an allegation would be that, by being under the influence of alcohol or drugs, the plaintiff failed to take reasonable care of their own safety or the plaintiff was negligent by relying on an intoxicated person. 13.32 Courts have grappled with the application of contributory negligence when intoxication was involved. Many jurisdictions have legislated that there is a presumption of contributory negligence if the claim involves an intoxicated party. 13.33 As to the meaning of ‘intoxication’, all of the definitions in the civil liability legislation refer to some impairment of the plaintiff’s capacity to exercise care. Schedule 2 of the Civil Liability Act 2003 (Qld) defines ‘intoxicated’ to mean: … that the person is under the influence of alcohol or a drug to the extent that the person’s capacity to exercise proper care and skill is impaired.

As to other jurisdictions, see: Civil Law (Wrongs) Act 2002 (ACT) s 92 (‘under the influence of alcohol or a drug to the extent that the person’s capacity to exercise appropriate care and skill is impaired’); Civil Liability Act 2002 (NSW) s 48 (‘under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken)’);

[page 338] Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 3 (‘under the influence of alcohol or a drug to the extent that the capacity to exercise proper care and skill is significantly impaired’) and s 16 (blood alcohol content of 0.08 or more grams per 100 ml of blood is conclusive evidence that the plaintiff’ was intoxicated); Civil Liability Act 1936 (SA) s 3 (‘under the influence of alcohol or a drug to the extent that the person’s capacity to exercise due care and skill is impaired’); Civil Liability Act 2002 (Tas) s 5(5), (6) (‘under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken)’ unless the person satisfies the court that they were ‘not aware of the effect of the drug taken’); and Civil Liability Act 2002 (WA) s 5L(4) (‘affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person’s capacity to exercise reasonable care and skill is impaired’). There is no definition of ‘intoxication’ in the Wrongs Act 1958 (Vic). 13.34 Plaintiff intoxicated The civil liability legislation in all jurisdictions, except New South Wales and Victoria (see 13.36–13.37), imposes a presumption that the plaintiff’ was contributory negligent if they were intoxicated at the time of the breach of duty or the accident: Civil Law (Wrongs) Act 2002 (ACT) s 95; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 14; Civil Liability Act 2003 (Qld) s 47; Civil Liability Act 1936 (SA) s 46 (intoxicated at the time of the accident); Civil Liability Act 2002 (Tas) s 5; Civil Liability Act 2002 (WA) s 5L. 13.35 A plaintiff’ may rebut the presumption of contributory negligence only by proving, on the balance of probabilities, that their intoxication did not contribute to the breach of duty or that the intoxication was not self-

induced: Civil Law (Wrongs) Act 2002 (ACT) s 95(2); Civil Liability Act 2002 (NSW) s 50(2)–(5); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 14(2) (intoxication must be voluntary); Civil Liability Act 2003 (Qld) s 47(3); Civil Liability Act 1936 (SA) s 46(2); Civil Liability Act 2002 (Tas) s 5(1), (4); Civil Liability Act 2002 (WA) s 54(2). In Russell v Edwards (2006) 65 NSWLR 373, it was argued by the plaintiff’ that his intoxication was not self-induced as he was ignorant as to how much alcohol he could consume before being intoxicated. Ipp JA stated (Beazley JA and Hunt AJA agreeing) that ‘self-induced’ equated with ‘voluntary’: at [21]. His Honour held that the fact that a person does not know how much they would be required to drink to be intoxicated does not mean that the intoxication was not self-induced: at [21]. 13.36 In New South Wales, s 50(1) of the Civil Liability Act 2002 (NSW) applies when it is ‘established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired’. Section 50(2) provides: A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated.

[page 339] Section 50 was considered in Jones v Dapto Leagues Club Ltd [2008] NSWCA 32, where the plaintiff had placed his fingers in an empty light socket on the defendant’s premises and suffered an electric shock. The New South Wales Court of Appeal held that the evidence established that, although the plaintiff was affected by alcohol, his capacity to exercise reasonable care and skill was not impaired and, therefore, s 50 of the Civil

Liability Act 2002 (NSW) did not apply. See also Russell v Edwards (2006) 65 NSWLR 373, where the plaintiff, aged 16, consumed alcohol when at a party held at the defendants’ home. When he was intoxicated, the plaintiff dived into the shallow end of the swimming pool and was seriously injured. The trial judge found that the defendants had been negligent by failing to properly supervise the party. However, s 50 of the Civil Liability Act 2002 (NSW) applied and, therefore, the defendants were not liable. 13.37 Victoria does not deny an award of damages or mandate a finding of contributory negligence if the plaintiff was intoxicated. Instead, s 14G of the Wrongs Act 1958 (Vic) specifies various factors a court is to take into account to determine if the duty of care has been breached in claims for death or personal injury. In other circumstances the common law will apply: Wrongs Act 1958 (Vic) s 14G(1). 13.38 Plaintiff relies upon intoxicated defendant In the Australian Capital Territory, the Northern Territory, Queensland and South Australia, there is a presumption of contributory negligence if the plaintiff suffers harm due to reliance upon an intoxicated defendant: Civil Law (Wrongs) Act 2002 (ACT) s 96; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 15; Civil Liability Act 2003 (Qld) ss 48 and 49 (defendant was driving a motor vehicle); Civil Liability Act 1936 (SA) s 47. For this presumption to apply, the plaintiff must be at least 16 years old and must have been aware, or ought reasonably to have been aware, that the defendant was intoxicated. 13.39 As with an intoxicated plaintiff, the presumption may be rebutted upon proof that the intoxication of the defendant did not contribute to the breach of duty or that the plaintiff could not have reasonably avoided relying on the defendant in the circumstances: Civil Law (Wrongs) Act 2002 (ACT) s 96(2); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 15(2); Civil Liability Act 2003 (Qld) s 48(3); Civil Liability Act 1936 (SA) s 47(2).

13.40 Apportionment If a party to the claim was intoxicated, in most jurisdictions the legislation nominates a 25 per cent minimum reduction of the plaintiff’s damages: Civil Liability Act 2002 (NSW) s 50(4); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 17; Civil Liability Act 2003 (Qld) s 47(4) (intoxicated plaintiff); s 48(4) (intoxicated defendant); Civil Liability Act 1936 (SA) s 46(3) (intoxicated plaintiff); s 47(3) (intoxicated defendant); Civil Liability Act 2002 (Tas) s 5(2) (intoxicated plaintiff). 13.41 In the Australian Capital Territory, a reduction that is just and equitable is required: Civil Law (Wrongs) Act 2002 (ACT) s 95(3) (intoxicated plaintiff); s 96(3) (intoxicated defendant). In Western Australia, the Civil Liability Act 2002 is silent as to apportionment; therefore, a just and equitable reduction in accordance with the degree of negligence attributable to the plaintiff would be required: Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 4(1). See 13.22 for a discussion of ‘just and equitable’. [page 340] 13.42 Motor vehicle accidents Often negligence claims arising from motor vehicle accidents involve intoxication of either the driver or the passenger or both. If the plaintiff and defendant driver were intoxicated, under the common law it was possible that the defendant driver could plead either contributory negligence or volenti (a complete defence): see 13.48 and 13.63. 13.43 In Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [27], McHugh J noted: Since the introduction of apportionment legislation, contributory negligence has been the preferred characterisation of the conduct of the plaintiff who accepts a lift from a driver known to be intoxicated.

Contributory negligence was determined on the issue of whether a reasonable person ‘would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication’: Joslyn v Berryman at [38]. This standard applied also if the plaintiff passenger was intoxicated. 13.44 The civil liability legislation of Queensland and South Australia imposes a higher reduction of damages if the negligence involves a motor vehicle: Civil Liability Act 2003 (Qld) s 47(5) (intoxicated plaintiff); s 49 (intoxicated defendant); Civil Liability Act 1936 (SA) s 46(4) (intoxicated plaintiff); s 47(5) (intoxicated defendant). The provisions provide for a minimum reduction of 50 per cent of the damages if the intoxicated plaintiff was a driver of a motor vehicle or the plaintiff relied upon an intoxicated defendant driver. The greater reduction will be made if it is established that the blood alcohol concentration of the driver in either scenario was 0.15 or more or if the driver was incapable of exercising effective control of the vehicle due to alcohol or drug consumption: see also Motor Accidents Compensation Act 1999 (NSW) s 138; Transport Accident Act 1986 (Vic) s 40. 13.45 In Allen v Chadwick (2015) 326 ALR 505, the respondent was injured when she was a passenger in the appellant’s car. At the time of the incident the appellant had a blood alcohol level of 0.229 per cent. Prior to the incident the respondent had been driving and not been drinking. After a comfort stop she returned to the car to find the appellant in the driver’s seat and he refused to move. Believing that they were not near their destination, the respondent got in the back of the car but did not put on her safety belt. The trial judge in applying the presumption of contributory negligence for a plaintiff relying upon an intoxicated driver in s 47 of the Civil Liability Act 1936 (SA), found that in the circumstances, taking into account the respondent’s feelings of helplessness and panic, the respondent could not have reasonably been expected to avoid the risk of getting in the car with the

appellant driving: s 47(2)(b). The trial judge reduced the respondent’s damages by 25 per cent for failing to wear a seatbelt (s 49) rather than the fixed statutory reduction of 50 per cent as prescribed by s 47(5): see Chadwick v Allen [2012] SADC 105. On appeal, the Full Court of the Supreme Court of South Australia agreed that s 47 did not apply and held that in the circumstances, s 49 did not apply either and therefore the respondent’s damages were not to be reduced: see Allen v Chadwick (2014) 68 MVR 82 at [156]–[158]. Before the High Court, the appellant argued that s 47 required the personal characteristics of the injured person to be ignored when assessing whether ‘the injured [page 341] person could not reasonably be expected to have avoided the risk’ in subsection (2)(b). The High Court agreed, holding (at [50]–[51]): Section 47(2)(b) is concerned with the reasonable evaluation of the relative risks of riding with an intoxicated driver or taking an alternative course of action. As Kourakis CJ [dissenting judgment in the court below] rightly held, it contemplates an objectively reasonable evaluation of the relative risks. Section 47(2)(b) contemplates the possibility that it may be reasonable for a plaintiff to decide not to avoid the risk of riding with an intoxicated person because it may reasonably be assessed as the less risky of two unattractive alternatives. It does not contemplate that a plaintiff be confronted with “no choice” but to ride with the intoxicated driver; nor does it contemplate the most reasonable evaluation of which a person whose capacity for reasonable evaluation is diminished is capable. The evaluation which s 47(2)(b) contemplates is an evaluation of relative risk in a given situation by the exercise of reasonable powers of observation and appreciation of one’s environment, as well as the exercise of a reasonable choice between alternative courses of action. Inputs into the evaluation contemplated by s 47(2)(b) are those facts, as they may reasonably be perceived, which bear upon the reasonable assessment of the relative risks of alternative courses of action. Those facts may include matters of objective fact personal to the plaintiff as well as aspects of the external environment. But subjective characteristics of the plaintiff which might diminish his or her capacity to make a reasonable evaluation of relative risk in the light of those facts are immaterial to the evaluation which s 47(2)(b) contemplates.

The court noted that the respondent was a young woman, pregnant at the

time and therefore more vulnerable to serious consequences if she was assaulted by a stranger if left alone, and she was on a dark and unfamiliar road in the early hours of the morning, and was uncertain as to the distance to the town. The court held that s 47(2)(b) did apply in the circumstances as (at [61]): Those facts could reasonably lead to an evaluation of a real risk of harm, either from strangers or from the difficulties of a walk in unfamiliar territory over an indeterminate distance in the dark. In addition, the substantial risk of riding with Mr Allen could reasonably be regarded as lessened to a relatively acceptable level by reason of the absence of other vehicular traffic on the roads at the time.

Appeals 13.46 An assessment of apportionment, if made by a judge, is not lightly reviewed and even more so when the apportionment has been made by a jury: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; 59 ALJR 492; Liftronic Pty Ltd v Unver (2001) 179 ALR 321. However, an appellate court will overturn a finding as to apportionment of blame if it is found to be unreasonably disproportionate: Pennington v Norris (1956) 96 CLR 10; Watt v Bretag (1982) 41 ALR 597; 56 ALJR 760. In Podrebersek v Australian Iron & Steel Pty Ltd, it was held (at ALR 532; ALJR 493–4): A finding on a question of apportionment is a finding upon a “question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds”: British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201. Such a finding, if made by a judge, is not lightly reviewed.

[page 342] The task of an appellant is even more difficult when the apportionment has been made by a jury (Zoukra v Lowenstern [1958] VR 594).

13.47 This quote was cited with approval in Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137 at [157]. In that case, Kirby J referred to the ‘rule of restraint’ and noted (at [119]) that there were three factors which required restraint in disturbing decisions about contributory negligence and apportionment. The three factors were: 1.

the issue of contributory negligence is essentially a factual question, and therefore the primary judge (or jury) will have relevant advantages over an appellate court that will often be critical for the determination of the issue;

2.

the apportionment legislation conferred upon the decision-maker a power to reduce the recoverable damages “to such an extent” as the court determines “having regard to” a consideration expressed in very general language (“the claimant’s share in the responsibility for the damage”) that evokes the exercise of a quasi-discretionary judgment upon which different minds may readily come to different conclusions; and

3.

the broad criteria by which such decisions are made at trial (including by reference to what “the court thinks just and equitable” in the case) make it difficult, absent a demonstrated mistake of law or fact, to establish the kind of error that, alone, will authorise an appellate court to set aside the decision and any apportionment of the trial judge and to substitute a different decision or apportionment on appeal.

3 Volenti Non Fit Injuria (No Injury is Done to One Who Voluntarily Consents) 13.48 As with other tortious actions, consent by a plaintiff to the negligence relieves the defendant of liability. Therefore, if a plaintiff, with full

knowledge, voluntarily accepts the risk of injury, the defendant may raise the defence of volenti non fit injuria. If the defence is proven, it is a complete defence and the plaintiff will be denied recovery of damages: Rootes v Shelton (1967) 116 CLR 383; Roggenkamp v Bennett (1950) 80 CLR 292. 13.49 Employers commonly relied on the defence of volenti in the 19th century in cases brought against them by injured employees. It was reasoned that if the work involved danger and a risk of injury and the employee carried out the work, the employee was effectively consenting to the risk; otherwise, they could leave the employment: Thomas v Quartermaine (1887) 18 QBD 685. This approach favoured employers and was probably regarded as necessary at the time to assist in the expansion of English industry during the Industrial Revolution. The approach was changed by the House of Lords decision of Smith v Charles Baker & Sons [1891] AC 325 from which evolved the modern doctrine of volenti non fit injuria. In that case, the plaintiff employee worked as a driller for his railway contractor employer and was fully cognisant of the dangers from a crane lifting rocks over his head. The House of Lords held that the test for volenti was not merely whether the person knew and accepted exposure to the risk but ‘whether he agreed that, if injury should befall him, the risk was to be his and not his master’s’: at 355 per Lord Watson. [page 343] 13.50 To establish the defence of volenti, the defendant must establish that the plaintiff: had full knowledge of the risk; and voluntarily accepted the physical and the legal risk. See Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 at [81]; Carey v

Lake Macquarie City Council (2007) Aust Torts Reports ¶81-874 at [85]; Roggenkamp v Bennett (1950) 80 CLR 292 at 300.

Full Knowledge of Risk 13.51 It must be established that the plaintiff perceived the danger and understood the risks. A subjective test is applied in establishing whether the plaintiff was aware of the facts and circumstances that gave rise to the risk. Obviously, this is a very difficult hurdle for a defendant to get over as mere knowledge alone of a risk does not imply consent: Smith v Charles Baker & Sons [1891] AC 325; Canterbury Municipal Council v Taylor [2002] NSWCA 24. It is because of this difficulty that volenti was not often pleaded, and a defendant would rely upon contributory negligence instead: Imbree v McNeilly (2008) 236 CLR 510; Schuller v S J Webb Nominees Pty Ltd (2015) 124 SASR 152 at [50]. 13.52 There must be full knowledge of the risk and a belief that the risk may eventuate. In Canterbury Municipal Council v Taylor [2002] NSWCA 24, the appellant owned and managed a velodrome. A person who had been playing in a game of touch football in the middle of the velodrome was fatally injured when he stepped into the path of a group of cyclists training at the velodrome and was struck by the respondent. The respondent suffered physical and psychological injuries. The respondent claimed that the appellant was negligent by failing to take adequate precautions to alleviate the risk of injury from the dual use of the velodrome by cyclists and footballers. The appellant claimed the defence of volenti, arguing that the respondent had voluntarily assumed the risk of injury by participating in the cycling training. The Court of Appeal held (at [146]–[147]): It does not follow merely from the fact that the respondent appreciated or should have appreciated the dangers of simultaneous dual use [of the velodrome] that he believed that the touch football players would carelessly walk into the cyclists’ path. He may well have believed that the footballers were quite capable of acting without negligence and would play their game in safety. These issues were not properly investigated at the trial. What evidence there was on

this issue tends to support a finding that the respondent did not expect that the risk would materialise. A belief that the dangers (of which the respondent had full appreciation) would not materialise, would negative the proposition that he accepted those dangers.

The Court of Appeal held that in order to establish volenti, the appellant had to prove that the respondent had knowledge of the risk, had an actual belief that the risk would eventuate, and had voluntarily accepted that risk. As the respondent had no belief that such an incident would eventuate, he was found not to be volens to the risk. 13.53 The civil liability legislation assists in establishing volenti by providing a presumption that the plaintiff was actually aware of the risk, if the risk is an obvious one. [page 344] Effectively, the onus is placed upon the plaintiff to establish that they were not aware of the risk. Section 14 of the Civil Liability Act 2003 (Qld) states: (1) If, in an action for damages for breach of duty causing harm, a defence of voluntary assumption of risk is raised by the defendant and the risk is an obvious risk, the plaintiff is taken to have been aware of the risk unless the plaintiff proves, on the balance of probabilities, that he or she was not aware of the risk.

An ‘obvious risk’ is a risk that would be obvious to a reasonable person in the position of the plaintiff: Civil Liability Act 2003 (Qld) s 13. See also Civil Liability Act 2002 (NSW) ss 5F and 5G; Civil Liability Act 1936 (SA) ss 36 and 37; Civil Liability Act 2002 (Tas) ss 15 and 16; Wrongs Act 1958 (Vic) ss 53 and 54; Civil Liability Act 2002 (WA) ss 5F and 5N. In the Australian Capital Territory, obvious risks (referred to as ‘inherent risks’) only apply to equine activities: see Civil Law (Wrongs) Act 2002 (ACT) Sch 3. There are no

equivalent provisions in the Personal Injuries (Liabilities and Damages) Act 2003 (NT). The civil liability legislation also includes obvious risks arising from dangerous recreational activities: see 13.67. 13.54 When assessing whether a risk is an obvious risk, reference may be had to the plaintiff’s knowledge and experience, and to identify the circumstances and extent to which ‘the aspects of “the position” of the plaintiff’ are to be ascribed to the reasonable person’: Fallas v Mourlas (2006) 65 NSWLR 418 at [153]. In Doubleday v Kelly [2005] NSWCA 151, the plaintiff’s age (seven) was relevant when determining whether she was aware of the risks involved in attempting to roller skate on a trampoline: see 13.11. See also Queensland v Kelly [2015] 1 Qd R 577, where it was held that the risk of serious injury from running down a sand dune into a lake was not obvious to a person in the position of the respondent, a young Irish tourist visiting Fraser Island, who was unaccustomed to running down sand dunes. 13.55 To have full knowledge of the risk the plaintiff must be aware of the nature and extent of the risk: Imbree v McNeilly (2008) 236 CLR 510. The civil liability legislation encompasses this; for example, s 14(2) of the Civil Liability Act 2003 (Qld) provides: For this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

13.56 The South Australian legislation also provides that the defence of volenti cannot be established unless it can be established that a reasonable person would have taken steps to avoid the risk, which the plaintiff did not take: Civil Liability Act 1936 (SA) s 37(3). See Schuller v S J Webb Nominees Pty Ltd (2015) 124 SASR 152.

Voluntary Acceptance of Risk

13.57 The plaintiff must have accepted voluntarily that there was a risk of injury (physical risk) and a risk that reasonable care would not be taken by the defendant (legal risk). In Imperial Chemical Industries Ltd v Shatwell [1965] AC 656, the plaintiff was employed in one of the defendant’s quarries as an explosives shot firer as part of normal blasting operations. The employer had issued orders that testing be done from a shelter. The plaintiff [page 345] and the others in his team were aware of those orders and of new statutory regulations requiring testing from a proper shelter. The plaintiff and his younger brother sustained personal injuries when a charge exploded prematurely while testing the electric circuit without using a shelter. The plaintiff claimed the employers were responsible for his fellow employee’s (his younger brother’s) negligence because, as his employers, they were vicariously liable. The House of Lords held that volenti was made out under general principle founded in common sense and policy. As Lord Reid stated (at 672–3): I think that most people would say, without stopping to think of the reason, that there is a world of difference between two fellow servants collaborating carelessly so that the acts of both contribute to cause injury to one of them, and two fellow servants combining to disobey an order deliberately though they know the risk involved. It seems reasonable that the injured man should recover some compensation in the former case but not in the latter. If the law treats both as merely cases of negligence it cannot draw a distinction. But in my view the law does and should draw a distinction. In the first case only the partial defence of contributory negligence is available. In the second volenti non fit injuria is a complete defence if the employer is not himself at fault and is only liable vicariously for the acts of the fellow servant. If the plaintiff invited or freely aided and abetted his fellow servant’s disobedience, then he was volens in the fullest sense. He cannot complain of the resulting injury either against the fellow servant or against the master on the ground of his vicarious responsibility for his fellow servant’s conduct.

13.58

The characteristics of the plaintiff will be relevant when determining

whether there was voluntary acceptance of the risk. In Leyden v Caboolture Shire Council [2007] QCA 134, the plaintiff was 15 years old when injured on a BMX track in a park operated and controlled by the defendant. The track was regularly altered by third parties and this was known by the users of the track, including the plaintiff. A majority of the Queensland Court of Appeal found that although a duty was owed and had been breached, the defence of volenti had been established. MacKenzie J stated (at [40]): … the learned trial judge took into account the [plaintiff’s] age and considerable experience in riding BMX bikes and formed a judgment that although he was not an adult, he was sufficiently able to assess the risks for himself.

13.59 Volenti requires proof that the plaintiff accepted the risk that the defendant may not achieve the standard of care imposed by the law. In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460 at [125], Kirby J noted that ‘the appellant must totally accept the consequences of the respondent’s neglect for his safety’. Similarly, in Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 at [81], it was stated ‘the conclusion that a plaintiff voluntarily assumed the risk in question is readily seen as equivalent to concluding that the defendant owed that plaintiff no duty of care’. 13.60 Where injury results from a risk other than the one consented to, the defence will not apply: Kent v Scattini [1961] WAR 74. In Rootes v Shelton (1967) 116 CLR 383, the plaintiff was injured during a dangerous water skiing manoeuvre in which the skiers crossed in front of one another. During this manoeuvre, the plaintiff collided with a boat that was moored in the water. The plaintiff alleged that the defendant had been negligent by driving too close to the moored boat and in failing to warn the skiers. The defendant argued that the plaintiff had voluntarily assumed the risks of water skiing, a dangerous [page 346]

sport, and, in particular, the greater risks involved in the dangerous manoeuvre. Owen J stated (at 395): To say that the plaintiff voluntarily assumed the risk of colliding with an obstruction in the water is one thing. To say that the plaintiff voluntarily undertook the risk that the defendant would carelessly fail to warn him of the presence of such an obstruction or would fail to exercise due care in steering the launch of which he had control is a very different proposition and one for which I can find no support in the evidence.

Intoxication 13.61 Intoxication has always added difficulties in the application of volenti, but it has applied in some cases: Roggenkamp v Bennett (1950) 80 CLR 292; Insurance Commissioner v Joyce (1948) 77 CLR 39. Proving volenti in such circumstances requires proof that the plaintiff was aware that the driver was intoxicated to the extent that they would not be capable of exercising reasonable care in driving and accepted the risks associated. Mere perception of danger is not enough — the plaintiff must understand the defendant to be so intoxicated that they (the defendant) would be unable to exercise reasonable care. In O’Shea v Permanent Trustee Co of New South Wales Ltd [1971] Qd R 1, the evidence was that although the plaintiff knew the driver had been drinking, he had not been with him throughout the evening and, therefore, was not aware of how much the driver had had to drink. Therefore, although the plaintiff was contributory negligent, he was not volens. Similarly, in Suncorp Insurance & Finance v Blakeney (1993) Aust Torts Reports ¶81-253, the defence of volenti failed because the 16-year-old passenger thought that the driver ‘seemed alright’. Legislation exists to prevent the defence of volenti from applying to plaintiffs who rely upon an intoxicated defendant driver: see Motor Accidents Compensation Act 1999 (NSW) s 140. The civil liability legislation in some jurisdictions also prevents the application of volenti where the plaintiff relies on an intoxicated defendant (not necessarily a driver): Civil Law (Wrongs) Act (ACT) s 36(5); Civil Liability Act 2003 (Qld) s 48(5); Civil Liability Act

1936 (SA) s 47(6). Instead, a presumption of contributory negligence is imposed: see 13.44. 13.62 If the plaintiff themselves were intoxicated, a defendant would have a heavy onus to discharge if alleging the volenti defence. In such circumstances, the plaintiff could argue that they did not have the capacity to understand the risks due to the influence of alcohol or drugs and, therefore, there could not be any voluntary acceptance of any risk. They would still be presumed to be aware of any obvious risk due to the application of the civil liability legislation, as a reasonable person is a sober reasonable person: see 13.12 and Joslyn v Berryman (2003) 214 CLR 552; 198 ALR 137. In Insurance Commissioner v Joyce (1948) 77 CLR 39, the plaintiff was a passenger in a vehicle which crashed into a gate after colliding with a stationary truck. The plaintiff was found unconscious in the passenger seat and the driver was found asleep and quite drunk two hours later under some lantana bushes nearby. [page 347] The High Court held by majority that the plaintiff must fail. On the question of voluntary assumption of risk, Latham CJ held that the onus was upon the plaintiff to establish the case. If the plaintiff passenger was sober enough to understand the danger, he voluntarily encountered an obvious risk: at 47. Rich J, likewise, drew inferences from the plaintiff’s failure to give evidence: And when the greater probability is that both had enough consciousness to be aware of what they had been doing, although not enough judgment and discretion to drive, why should a judge hesitate to find accordingly against a plaintiff who gives no evidence: at 49.

Dixon J provided an oft-quoted summary of the position of passengers voluntarily riding with drunken drivers: In the case of a driver whose ability to manage and control a car or whose judgment and

discretion in doing so is impaired by drink, the position of the voluntary passenger has been variously determined by the application of three different principles. In the first place, he has been regarded as depending upon a relation which by accepting a place in the conveyance he sets up between himself and the person responsible for its management. For those who believe that negligence is not a general tort but depends on a duty arising from relations, juxtapositions, situations or conduct or activities, the duty of care thus arises. For those who take the contrary view, the standard of care is thus determined. But whatever be the theory, the principle applied to the case of the drunken driver’s passenger is that the care he may expect corresponds with the relation he establishes. If he knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty: at 56–7.

Dixon J preferred to deal with the matter as one of duty rather than exculpatory considerations and, in dissent, held that there was not sufficient evidence to show that the plaintiff had knowledge or appreciation sufficient to negate a duty. In his words, it was ‘all speculation or guesswork’: at 60. 13.63 Therefore, if a passenger is so intoxicated as to be unable to appreciate the intoxicated state of the driver, the defence may not apply: O’Shea v Permanent Trustee Co of New South Wales Ltd [1971] Qd R 1; Duncan v Bell [1967] Qd R 425; Cvetkovic v Princes Holdings (t/a Tilt Amusement Centre) (1989) 51 SASR 365.

Implied acceptance of risk 13.64 Since the test is said to be subjective, there should therefore be no room for the doctrine of constructive knowledge. However, in a number of situations, consent by the plaintiff to exempt the defendant from liability is implied. In Roggenkamp v Bennett (1950) 80 CLR 292 at 300, it was stated: The question whether the plaintiff’s acceptance of the risk was voluntary is generally a question of fact, and the answer to it may be inferred from his conduct in the circumstances. The inference may more readily be drawn in cases where it is proved that the plaintiff knew of the danger and comprehended it, as, for example, where the danger was apparent, or proper warning was given of it, and there was nothing to show that he was obliged to incur it, than in cases where he had knowledge that there was danger but not full comprehension of its extent, or where, while taking an ordinary and reasonable course, he had not an adequate opportunity of electing whether he would accept the risk or not.

[page 348] See also Schuller v S J Webb Nominees Pty Ltd (2015) 124 SASR 152, where it was held that it could be inferred from the facts that the appellant voluntarily accepted the risks when she chose to dance on a chair on the respondent’s premises when affected by alcohol. Some common examples where it may be inferred that a plaintiff consented to the risk are motor vehicle accidents and sporting activities. 13.65 Motor vehicle accidents Every user of the highway is deemed at common law to consent to run the risk of damage from dangers which cannot be avoided by the use of reasonable care and skill: Holmes v Mather (1875) LR 10 Ex 261. If a person accepts a lift with a driver they know to be inexperienced, it may be argued that they consented to the risks associated with that inexperience. In Walker v Turton-Sainsbury [1952] SASR 159, the defence was successful when a passenger permitted an inexperienced driver to drive a racing car and was found to have voluntarily accepted the risk of the novice being unable to control the car. However, in Ranieri v Ranieri [1973] 7 SASR 418, a father travelling in a vehicle driven by his inexperienced son was found to have voluntarily accepted the risk of his son’s inexperience as a driver, but not to have accepted the risk of his son’s carelessness in taking his eyes off the road. See Imbree v McNeilly (2008) 236 CLR 510; 248 ALR 647 for a discussion of volenti and passengers of inexperienced drivers. A passenger who voluntarily rides in a vehicle, knowing it to be defective, is volens to risks arising from the defective state of the vehicle but not to negligent driving: Gent-Diver v Neville [1953] St R Qd 1 (volenti was not established because, although there was an acceptance of risk by a pillion passenger to dangers arising from the absence of a light, injury was caused by failure of the driver to keep a proper look-out).

13.66 Sport and recreational activities The voluntary participation in a sport does not imply acceptance of any risk that may be associated with the game: Agar v Hyde (2000) 201 CLR 552; 173 ALR 665 at [14]; Rootes v Shelton (1967) 116 CLR 383. However, both participants and spectators are volens to the risks of injury inherent in a lawful sport: Hall v Brooklands Auto Racing Club [1933] 1 KB 205; Moloughney v Wellington Racing Club [1935] NZLR 800; Murray v Harringay Arena Ltd [1951] 2 KB 529; Woodridge v Sumner [1963] 2 QB 43; Simms v Leighy Rugby Football Club [1969] 2 All ER 923. Inherent risks are those which are naturally incidental to the game being played and any extraordinary, although foreseeable, risks incidental to that sport. 13.67 The civil liability legislation specifically provides for plaintiffs engaging in dangerous recreational activities. Section 19 of the Civil Liability Act 2003 (Qld) states that a person is not liable in negligence for harm suffered by a plaintiff that is the result of the materialisation of an obvious risk of a dangerous recreational activity: see also Civil Liability Act 2002 (NSW) s 5L; Recreational Services (Limitation of Liability) Act 2002 (SA) s 5; Civil Liability Act 2002 (Tas) s 20; Civil Liability Act 2002 (WA) s 5H. Section 18 of the Civil Liability Act 2003 (Qld) defines ‘dangerous recreational activity’ as ‘an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person’. See also Civil Liability Act 2002 (NSW) s 5K; Civil Liability Act 2002 (Tas) s 19; Civil Liability Act 2002 (WA) s 5E. [page 349] 13.68 In determining whether an activity falls within this definition, regard may be had to the probability of harm, the gravity of the injury and characteristics of the plaintiff. Risks that would be obvious in a dangerous recreational activity would be those that are obvious to a reasonable person;

therefore, an objective test: see Fallas v Mourlas (2006) 65 NSWLR 418 (kangaroo shooting); Lormine Pty Ltd v Xuereb [2006] NSWCA 200 (dolphin watching). It may be necessary to take into account the characteristics of the plaintiff to determine whether the risk is an obvious one. For example, to a young child engaged in a dangerous recreational activity, certain risks may not be as obvious as they would be to an older participant: Doubleday v Kelly [2005] NSWCA 151. 13.69 In Fallas v Mourlas (2006) 65 NSWLR 418, the New South Wales Court of Appeal considered the obvious risks of dangerous recreational activities under the Civil Liability Act 2002 (NSW). The plaintiff was shot in the leg by the defendant as he sat in a car holding a spotlight for his companions while shooting kangaroos. Ipp JA referred to the following principles as relevant in determining whether a recreational activity was dangerous: it is an objective test (at [13]); ‘significant risk of physical harm’ refers to ‘a standard lying somewhere between a trivial risk and a risk likely to materialise’ (at [18]); the significant risk which converts a recreational activity into a dangerous one may be different to the obvious risks associated with the activity (at [28]); and reference must be made to the particular activity the plaintiff was engaged in at the time, which may involve segmenting ‘the particular activities actually engaged in from the broader (and more general) activity of which it forms part’: at [46]. Ipp JA and Basten J held that kangaroo shooting was a dangerous recreational activity as it involved ‘a significant degree of risk of physical harm to a person’. For the defendant to avoid liability under the section, the harm suffered by the plaintiff had to be the materialisation of the obvious risk of the dangerous recreational activity. Ipp JA held that the harm did not materialise from the obvious risk of kangaroo shooting as the defendant’s

conduct was grossly negligent: at [54]. Tobias J held that the injury did arise from the obvious risk because a reasonable person would have been aware that any reassurance by the defendant, as he fiddled with the gun, that it was not loaded was unreliable: at [107]. Basten J, in dissent, held that the activity engaged in at the time of the incident was not a dangerous recreational activity as there was no significant risk of an accidental discharge of a gun: at [149]. However, his Honour thought that the discharge of the gun was an obvious risk, stating (at [157]): … there was, prior to the discharge of the gun, a risk that the defendant would point it at the plaintiff, even though that would be a careless act, done in contravention of standard rules for the handling of firearms. Although there was no evidence of it, the plaintiff might have believed that the defendant was experienced, careful and responsible in his handling of firearms. But even if he had, that would merely mean that the risk of an accidental pointing of the gun was probably low. It would remain an obvious risk.

[page 350] 13.70 Since the decision of Fallas v Mourlas (2006) 65 NSWLR 418, there have been many cases that raise the issue of obvious risk of a dangerous recreational activity, but as yet no decision of the High Court. An analysis of the cases indicates that it is not always certain when a court will classify an activity as a dangerous recreational activity. In Stewart v Ackland (2015) 10 ACTLR 207; 293 FLR 341, it was held that performing backflips on a jumping pillow was not a dangerous recreational activity as the risk of serious injury was too slight. Special leave was granted by the High Court; however, the parties settled the claim. In Alameddine v Glenworth Valley Horse Riding (2015) 324 ALR 355, it was held that in light of the way in which the respondent’s website described quad bike riding, it was not a dangerous recreational activity, despite the activity being described so in the application form signed by the participants and on a sign in the waiting area. See also Sharp v Parramatta City Council (2015) 209 LGERA 220; [2015]

NSWCA 260 (jumping off a 10-metre diving platform into a pool was a dangerous recreational activity); Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports ¶81-831 (Oztag held not to be a dangerous recreational activity); Lormine Pty Ltd v Xuereb [2006] NSWCA 200 (dolphin watching on a 10-metre catamaran held not to be a dangerous recreational activity); Vreman v Albury City Council [2011] NSWSC 39 (riding of BMX bikes at a skate park held to be a dangerous recreational activity); Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952 (diving off a wharf held to be a dangerous recreational activity); Laoulach v Ibrahim [2011] NSWCA 402 (diving from a sports cruiser when moored was considered not to be a dangerous recreational activity).

4

Illegality

13.71 If the negligence involves illegal conduct of either the plaintiff, or the plaintiff and the defendant together, a defendant may be absolved of liability.

Joint Illegal Enterprise 13.72 If the plaintiff suffers damage as the result of the defendant’s act, or omission in the course of an illegal activity engaged in by the plaintiff jointly with the defendant, the plaintiff may be precluded from recovering damages. This preclusion may be based on either the argument that no duty of care was owed or the application of the defence of joint illegal enterprise: Smith v Jenkins (1970) 119 CLR 397. To establish joint illegal enterprise, the defendant must prove that: they and the plaintiff were jointly engaged in an illegal activity; and there was a connection between the illegal activity and the negligent conduct.

13.73 Under the original formulation of the defence, the illegality had to be sufficiently serious and inseverable from the activity giving rise to the damage, for example when both plaintiff and defendant unlawfully used a motor vehicle in the course of a serious crime. The principles were refined in Jackson v Harrison (1978) 138 CLR 438; 19 ALR 129, where the joint illegal enterprise involved a minor infringement of statutory traffic provisions. [page 351] In that case, the High Court indicated that the defence would apply only where it was necessary to consider the illegality in determining the standard of care reasonably to be expected. Jacobs J detailed the defence as follows (at CLR 457–8; ALR 144): I think that it is correct to base the defence upon a denial of a duty of care in the particular circumstances rather than upon a denial of remedy for a breach of the duty of care. A legal duty of care presupposes that a tribunal of fact can properly establish a standard of care in order to determine whether there has been a breach of the duty 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. Before the courts will say that the appropriate standard of care is not permitted to be established there must be such a relationship between the act of negligence and the nature of the illegal activity that a standard of care owed in the particular circumstances could only be determined by bringing into consideration the nature of the activity in which the parties were engaged. The two safe blowers provide the simplest illustration. What exigencies of the occasion would the tribunal take into account in determining the standard of care owed? That the burglar alarm had already sounded? That the police were known to be on their way? That by reason of the furtive occasion itself a speed of action was required which made it inappropriate to apply to the defendant a standard of care which in lawful circumstances would be appropriate? The courts will not engage in this invidious inquiry. The reason is no doubt based on public policy. If then, no standard of care can legally be determined, it cannot be said that there is any duty of care.

13.74 Therefore, the fact that the parties were engaged in an illegal enterprise at the time of the negligence does not necessarily deny the plaintiff

a remedy: Gala v Preston (1991) 172 CLR 243; 100 ALR 29. The conduct within the illegal enterprise must be connected to the alleged negligence: Gala v Preston. For example, to accept a lift with a driver knowing that they are on the way to deliver drugs would not necessarily give rise to the defence. However, if, during that lift, the driver was chased by the police and that led to negligent driving, the defence may be established. In Gala v Preston (1991) 172 CLR 243; 100 ALR 29, a plaintiff stole a car with others after an afternoon of heavy drinking, but handed over the driving to another. Some hours later, after having travelled hundreds of kilometres, the plaintiff was injured when the car was driven off the road into a tree at high speed. The plaintiff was asleep without his seatbelt on. Three of the members of the High Court excluded a duty because of the joint criminal activity. However, a majority, purporting to use an extended version of ‘proximity’, held that a duty of care should not be negated in the circumstances but that there was no proximate relationship attracting the normal duty of care in this case. Mason CJ, Deane, Gaudron and McHugh JJ stated (at CLR 250–2; ALR 34– 5): There is no a priori reason why the illegality of a particular enterprise or activity should automatically negate the existence of a duty of care which might otherwise arise from the relationship which subsists between the parties … [I]n cases involving a joint illegal enterprise, it is necessary to examine the relation of the illegality to the negligence complained of with a view to ascertaining whether it is possible or feasible for the court to determine an appropriate standard of care. If it is impossible or not feasible to do so, no duty of care arises … [I]n cases of illegality arising from infringement of statutory provisions which are designed to promote safety,

[page 352] for example, traffic laws and industrial safety regulations, there is no reason why illegality of that kind should negate the existence of a duty of care.

Gala v Preston was applied in Fabre v Arenales (1992) 27 NSWLR 437,

where the New South Wales Court of Appeal held that where a driver of a motor vehicle and its passenger were both attempting to escape from the police after both were involved in a criminal offence, the ordinary relationship of proximity between a driver and a passenger was transformed into one which lacked the relevant duty to take ordinary care in driving. Mahoney JA, giving judgment for the court, stated (at 453): In my opinion Mr Arenales was driving the car as he did in order to escape from the police. To do this, he was driving fast and he drove in a manner which, he hoped, would enable him to escape from them, for example, by taking turns or corners which they could not take. I infer that the plaintiff was a party to what he was doing. Accepting Mr Stephens’ evidence, she had been involved in a criminal offence on the premises in George Street and invited Mr Arenales’ assistance to escape from Mr Stephens. She was also a party to the attempt to escape from the police. When she entered the car she referred to the police. It is not necessary to seek to determine whether she consented in terms to the precise manoeuvres undertaken by Mr Arenales. It is, in my opinion, sufficient that she was a party to the attempt to escape from the police as he did. In those circumstances, she could not expect from him any more care than in fact he took. The ordinary relationship of a driver towards a passenger … was transformed into one which lacked the relevant duty to take ordinary care in driving. What happened, namely, the car striking the pillar box and the wall, was the kind of thing apt to happen in such a venture. In my opinion, therefore, the judge’s judgment for the defendants was correct.

13.75 The High Court considered the defence in Miller v Miller (2011) 242 CLR 446; 275 ALR 611. The appellant was injured when she was a passenger in a stolen motor vehicle. On the day of the accident the appellant had been drinking and was trying to get home, so she stole a car and asked her older sister, who she knew was unlicensed and had also been drinking, to drive herself and their younger cousin home. As they left the car park in the stolen car, the respondent, who was their uncle, stopped them and told them he would drive. The respondent drove reasonably at the start of the journey but then started to speed and was failing to stop at red lights. The appellant asked him to slow down and to stop to let her and her sister out but the respondent

refused. The respondent lost control of the car, striking a pole causing serious injury to the appellant. At first instance, it was held that the respondent owed the appellant a duty of care and the appellant was guilty of contributory negligence assessed at 50 per cent. The appeal court held that the respondent did not owe a duty of care based upon the finding that the parties were engaged in a joint illegal activity and the appellant’s action failed. A majority High Court held that if the illegal taking of the vehicle, an illegal act under s 371A of the Criminal Code (WA), did result in dangerous driving, any passenger complicit in that illegal use would also be complicit in the dangerous driving and if injured, ‘it would evidently be incongruous to decide that the offender who drove the vehicle owed that passenger a duty to drive with reasonable care’: at [93]. [page 353] The High Court rejected the notion that courts cannot regulate the conduct of wrongdoers, but it would be incongruous ‘for the law to provide that the driver should not be using the vehicle at all and yet say that, if the driver and another jointly undertake the crime of using a vehicle illegally, the driver owes the confederate a duty to use it carefully when neither should be using it at all’: at [73]. To avoid any incongruity, the illegality of the case must be analysed ‘by reference to the relevant statute, and identification of its purposes … [so that] any contrariety or lack of coherence denying the existence of a duty of care will be found’: at [74]. A majority of the court (6:1) allowed the appellant’s appeal, setting aside the decision of the Court of Appeal of the Supreme Court of Western Australia. This was based upon s 8(2) of the Criminal Code (WA) which provides that a person is not deemed to have prosecuted an unlawful purpose with another if they withdrew from the prosecution of the unlawful purpose,

communicated this to the other persons involved and took all reasonable steps to prevent the commission of the offence. The majority (Heydon J in dissent) held the appellant had communicated her withdrawal from the unlawful use of the vehicle by asking to be let out, and in the circumstances there were no reasonable steps she could have taken to prevent the illegal act. Therefore, at the time of the incident, the appellant was no longer engaged in the illegal activity with the respondent.

Plaintiff’s Illegal Activity 13.76 Under the common law, the fact that a plaintiff was engaged in criminal conduct at the time they were injured does not necessarily prevent a duty from being owed: Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438; Hackshaw v Shaw (1984) 144 CLR 614; 56 ALR 417. 13.77 In response to concerns of society, the civil liability legislation in many jurisdictions addresses this issue by denying recovery of damages for personal injury if at the time the plaintiff was engaged in criminal conduct and that conduct contributed materially to the risk of harm. See Civil Law (Wrongs) Act 2002 (ACT) s 94; Civil Liability Act 2002 (NSW) s 54 (serious offence punishable by six months or more imprisonment); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 10 (an offence punishable by imprisonment); Civil Liability Act 2003 (Qld) s 45 (an indictable offence); Civil Liability Act 1936 (SA) s 43 (an indictable offence); Civil Liability Act 2002 (Tas) s 6 (serious offence punishable by six months or more imprisonment). In Victoria, there is no denial of civil liability but the illegality of the plaintiff’s conduct is relevant in assessing breach of duty: Wrongs Act 1958 (Vic) s 14G(2)(b). There is no equivalent in the Western Australian legislation. 13.78 In Queensland and South Australia, the plaintiff’s conduct must be an indictable offence. An ‘indictable offence’ is a more serious criminal

charge that may be prosecuted before a court. In New South Wales, Queensland and Tasmania, it is not necessary that the plaintiff be convicted of the offence for the section to operate: Civil Liability Act 2002 (NSW) s 54(5); Civil Liability Act 2003 (Qld) s 45(4); Civil Liability Act 2002 (Tas) s 6(2). However, the plaintiff’s conduct must have constituted an indictable offence and contributed materially to the risk of harm. In New South Wales and Queensland, this is on the balance [page 354] of probabilities. In South Australia, the court must be satisfied beyond reasonable doubt that the conduct was such an offence and on the balance of probabilities it contributed to the harm: Civil Liability Act 1936 (SA) s 43(1). However, a conviction or acquittal must be accepted as conclusive evidence of guilt or innocence: Civil Liability Act 1936 (SA) s 43(3). If the denial of civil liability would be harsh and unjust in the circumstances, the legislation in some jurisdictions does allow the court to award damages. In Queensland, s 45(3) of the Civil Liability Act 2003 (Qld) provides: If the court decides to award damages under subsection (2), the court must assess damages on the basis that the damages to which the injured person would be entitled, apart from this section, are to be reduced, on account of the injured person’s conduct, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.

See also Civil Law (Wrongs) Act 2002 (ACT) s 94(2); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 10(2); Civil Liability Act 2003 (Qld) s 45(2); Civil Liability Act 1936 (SA) s 43(2). There is no equivalent in New South Wales and Tasmania. 13.79 The civil liability provisions preventing criminals being awarded damages for personal injury do not affect the common law defence of joint illegal activity. The provisions refer to situations where ‘the breach of duty

from which civil liability would arise’, not a situation of no duty being owed. In Queensland, although there was no in-depth discussion of s 45 of the Civil Liability Act 2002 when the bill was introduced, any reference to the provision refers to the scenario of the defendant being an innocent party.2

5

Immunity from Civil Liability

13.80 The civil liability statutes in Australia provide immunity from civil liability for a variety of circumstances. For example, the civil liability legislation changed the way in which evidence of meeting professional standards is considered in the negligence action, providing a defence in some jurisdictions. Protection from civil liability may also be provided for failing to warn of obvious risks and inherent risks. Further, protection is provided to persons assisting in an emergency and volunteering within the community and to those donating food for charitable or benevolent purposes.

Provision of a Professional Service 13.81 Evidence of standards within a particular profession is relevant when considering breach of the duty of care, but the fact that the defendant conformed to usual professional conduct does not necessarily mean they had not been negligent: Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625; Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 at 593, 601; see 11.71. 13.82 In New South Wales, Queensland, South Australia, Tasmania and Victoria, the civil liability legislation allows evidence of accepted practice to prove that the standard of [page 355]

care owed by the professional has not been breached. For example, s 22(1) of the Civil Liability Act 2003 (Qld) states: A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

See also Civil Liability Act 2002 (NSW) s 5O (‘does not incur liability in negligence’); Civil Liability Act 1936 (SA) s 42 (‘incurs no liability in negligence’); Civil Liability Act 2002 (Tas) s 22 (‘does not breach a duty’); Wrongs Act 1958 (Vic) s 59 (‘is not negligent’). There is no equivalent in the legislation of the Australian Capital Territory and the Northern Territory. In Western Australia there is no generic professional provision, only a similar provision that applies to health professionals, see 13.89. 13.83 As the provisions provide that a ‘professional does not breach a duty’ or similar terms, it may be raised by a defendant as a defence. In New South Wales, it has been held that s 5O of the Civil Liability Act 2002 that provides that a professional exercising competent professional practice as evidenced by peers ‘does not incur liability in negligence’, operates as a defence: Dobler v Halverson (2007) 70 NSWLR 151; Sydney South West Area Health Services v MD (2009) 260 ALR 702. See also Mules v Ferguson [2015] QCA 5, where it was accepted that s 22 of the Civil Liability Act 2003 (Qld) provided a defence. 13.84 ‘Professional’ is defined in the Queensland and Victorian civil liability legislation as a person practising a profession: Civil Liability Act 2003 (Qld) s 20; Wrongs Act 1958 (Vic) s 57. ‘Professional’ would no doubt be given a very wide interpretation in comparison to the traditional understanding of the term such as solicitors and medical practitioners. In Prestia v Aknar (1996) 40 NSWLR 165 at 186, Santow J discussed the meaning of ‘professional activity’ as: … intellectual activity, or manual activity controlled by the intellectual skill of the operator,

whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.

13.85 A proviso is included that peer professional opinion cannot be relied upon if the court considers the opinion to be irrational or contrary to the written law: Civil Liability Act 2002 (NSW) s 50(2); Civil Liability Act 2003 (Qld) s 22(2); Civil Liability Act 1936 (SA) s 41(2); Civil Liability Act 2002 (Tas) s 22(2); Wrongs Act 1958 (Vic) s 59(2) (court considers opinion to be unreasonable).

Advice and warnings 13.86 The standard of care for professionals provisions do not apply if the liability is based upon the giving of, or a failure to give, a warning, advice or information associated with the provision of the professional service. However, there are some slight differences in the wording. Section 22(5) of the Civil Liability Act 2003 (Qld) states: This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information, in relation to the risk of harm to a person, that is associated with the provision by a professional of a professional service.

[page 356] ‘Harm’ is defined in the Queensland legislation as harm of any kind, including personal injury, property damage and economic loss (Civil Liability Act 2003 (Qld) Dictionary) and therefore the exception has wide application. The Tasmanian provision is in similar terms: Civil Liability Act 2002 (Tas) s 22(5). The Victorian exception is also similar in its application, referring to ‘a risk or other matter to a person’ as being the subject of the warning or information: Wrongs Act 1958 (Vic) s 60. The exception is more restricted in New South Wales and South Australia,

applying to warnings, advice and information in relation to death or injury and is therefore more relevant to the medical profession. 13.87 The civil liability legislation provisions as to obvious risks may also be relevant to a professional. In some jurisdictions, the civil liability legislation provides that there is no duty to warn of obvious risks (see 13.97). However, the provisions do not apply if the defendant is a professional and the risk is a risk of death or personal injury, or the patient has requested the information or advice, or the written law requires the warning be given: see Civil Liability Act 2002 (NSW) s 5H(2); Civil Liability Act 2003 (Qld) s 15(2) (a professional other than a doctor, due to the application of s 21); Civil Liability Act 1936 (SA) s 38(2) (provision of a health care service); Civil Liability Act 2003 (Tas) s 17(2) (a professional other than a medical practitioner due to s 21); Civil Liability Act 2002 (WA) s 5O(2). There is no equivalent provision in the Australian Capital Territory, the Northern Territory or Victoria.

Medical professionals 13.88 Under the civil liability legislation, except in the Australian Capital Territory and the Northern Territory, medical and health professionals may avoid liability in negligence if the evidence is that they acted in accordance with accepted peer professional practice in respect of diagnosis and treatment: see 13.82. The proviso that peer professional opinion cannot be relied upon if considered by the court to be irrational or contrary to written law (see 13.85) protects a practitioner whose treatment is supported by opinion and also the practitioner who is on the cutting edge of medical practice, but allows the community, through the court, to exercise control over exceptional cases. 13.89 The Western Australian civil liability legislation differs in that it does not have the generic professional provision, but it does have a provision

in similar terms that only applies to health professionals. Section 5PB of the Civil Liability Act 2002 (WA) states: (1) An act or omission of a health professional is not a negligent act or omission if it is in accordance with a practice that, at the time of the act or omission, is widely accepted by the health professional’s peers as competent professional practice. … (3) Subsection (1) applies even if another practice that is widely accepted by the health professional’s peers as competent professional practice differs from or conflicts with the practice in accordance with which the health professional acted or omitted to do something. (4) Nothing in subsection (1) prevents a health professional from being liable for negligence if the practice in accordance with which the health professional acted or omitted to do something is, in the circumstances of the particular case, so unreasonable

[page 357] that no reasonable health professional in the health professionals position could have acted or omitted to do something in accordance with that practice. (5) A practice does not have to be universally accepted as competent professional practice to be considered widely accepted as competent professional practice. (6) In determining liability for damages for harm caused by the fault of a health professional, the plaintiff always bears the onus of proving, on the balance of probabilities, that the applicable standard of care (whether under this section or any other law) was breached by the defendant.

‘Health professional’ is defined in the Civil Liability Act 2002 (WA) s 5PA. 13.90 Advice and warnings One aspect of a doctor’s scope of duty of care in negligence is to provide advice and information. The duty to inform is a duty to take reasonable care to inform. When the High Court rejected the Bolam principle, it rejected its application to advice situations as well: Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625; Naxakis v Western General Hospital (1999) 197 CLR 269; 162 ALR 540. 13.91

As noted at 13.86, the professional standards provisions do not

apply to liability arising in connection with the giving, or failing to give, a warning, advice or information. The exceptions contained in the New South Wales and South Australian legislation are particularly directed at warning, advice and information in respect of personal injury or death by a professional, which would usually be a medical or health professional. See Civil Liability Act 2002 (NSW) s 5P (‘in respect of the risk of death of or injury to a person’); Civil Liability Act 1936 (SA) s 41(5) (‘in respect of a risk of death of or injury associated with the provision of a health care service’). Therefore, evidence of complying with accepted medical practice for this particular aspect of the duty of care does not avoid liability in Australia. 13.92 In Queensland and Tasmania, the civil liability legislation provides that a doctor does not breach the duty owed to a patient to inform of risks of medical treatment unless they fail to inform the patient of a material risk. Although the provision is phrased as ‘no breach’, it is merely a confirmation of the scope of a doctor’s duty as established in Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625. See 11.75ff.

Obvious Risks 13.93 If the plaintiff alleges that the defendant breached the duty of care by failing to warn them of a risk, the defendant may establish that there was no breach as the risk was an obvious risk: Angel v Hawkesbury City Council (2008) Aust Torts Reports ¶81–955 at [83]. Section 15 of the Civil Liability Act 2003 (Qld) provides that there is no proactive duty to warn of an obvious risk: (1) A person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff. (2) Subsection (1) does not apply if— (a) the plaintiff has requested advice or information about the risk from the defendant; or (b) the defendant is required by a written law to warn the plaintiff of the risk; or

[page 358] (c) the defendant is a professional, other than a doctor, and the risk is a risk of the death of or personal injury to the plaintiff from the provision of a professional service by the defendant. (3) Subsection (2) does not give rise to a presumption of a duty to warn of a risk in the circumstances referred to in that subsection.

See Civil Liability Act 2002 (NSW) s 5H; Civil Liability Act 1936 (SA) s 38; Civil Liability Act 2003 (Tas) s 17; Civil Liability Act 2002 (WA) s 5O. There is no equivalent provision in the Australian Capital Territory, the Northern Territory or Victoria. 13.94 The test to determine whether a risk is an obvious risk is an objective one: Glad Retail Cleaning Pty Ltd v Alvarenga (2013) 86 NSWLR 191 at [61]; Collins v Clarence Valley Council [2015] NSWCA 263: see 13.53 for discussion of meaning of ‘obvious risk’; Queensland v Kelly [2015] 1 Qd R 577. In Schultz v McCormack [2015] NSWCA 330 at [85], it was suggested that as the provision ‘cuts across of the scope of the duty of care’, it is appropriate to consider after concluding there is a duty of care and that the scope of that duty includes the relevant risk of harm. See also Collins v Clarence Valley Council [2015] NSWCA 263 at [120]–[122].

Inherent Risks 13.95 An inherent risk is one that cannot be avoided by the exercise of reasonable care: Rootes v Shelton (1967) 116 CLR 383 at 386; Woods v MultiSport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 at [111]; Vairy v Wyong Shire Council (2005) 221 ALR 711 at [50]; Perisher Blue Pty Ltd v Nair-Smith (2015) 295 FLR 153; 320 ALR 235 at [167] (risk of respondent being injured by the ski lift could have been avoided with reasonable care and therefore was not an inherent risk).

13.96 Under the common law, a defendant is not liable for damage arising from an inherent risk. The civil liability legislation in most jurisdictions restates this law. For example, s 5I of the Civil Liability Act 2002 (NSW) provides: (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

See also Civil Liability Act 2003 (Qld) s 16; Civil Liability Act 1936 (SA) s 39; Wrongs Act 1958 (Vic) s 55; Civil Liability Act 2002 (WA) s 5P. There is no equivalent in the Australian Capital Territory, Tasmanian or Northern Territory legislation. In Paul v Cooke (2013) 85 NSWLR 167, it was held that if the defendant denied liability in negligence because the harm suffered by the plaintiff was the result of the materialisation of an inherent risk, that was the starting point for consideration, not whether the defendant was negligent. Leeming JA held (at [51]): If a case can conveniently be decided under s 5I [Civil Liability Act 2002 (NSW)], it should be. The language of s 5I reflects the elements of liability which the plaintiff needs to establish. That is

[page 359] why it is framed in terms of the broader causal language of “as a result of … and why its opening words are “[a] person is not liable in negligence”. That is reinforced by s 5I(3), which carves out from the operation of the section “to exclude liability” a class of liability connected with a duty to warn. Section 5I does not deny s 5D causation; rather it answers the implicit question posed by the “claim” contemplated by s 5A(1) [application of Pt 1A of the Civil Liability Act 2002 (NSW) to claims of negligence] negatively: the defendant is not liable for that claim for damages for harm resulting from negligence.

The Court of Appeal also held that the application of the section was not

limited to the materialisation of inherent risks created by the defendant’s negligence. Leeming JA pointed out that where the legislation intended a provision to apply to a particular party, that party was identified: … other sections appear to be drafted on the basis that where their operation is confined to conduct of a particular person, the section says so. Section 5I is not one of those sections: at [72].

Rescue Cases 13.97 Policy plays a significant role in negligence claims in rescue situations. If the defendant has placed a person or property in danger, an injured rescuer may sue in negligence. In Videan v British Transport Commission [1963] 2 All ER 860 at 867–8, Lord Denning stated: The right of the rescuer is an independent right, and is not derived from that of the victim. The victim may have been guilty of contributory negligence — or his right may be excluded by contractual stipulation — but still the rescuer can sue.

13.98 The common law defence of volenti will not normally succeed against the injured rescuer even where such rescuer is aware of the risk and the extent of the danger: Haynes v Harwood [1935] 1 KB 146. However, where the rescuer intervenes unreasonably and unnecessarily with full appreciation of the risks, the position will be different: Cutler v United Dairies [1933] 2 KB 297 (plaintiff helped defendant with horse that had bolted). Contributory negligence may be raised if the plaintiff unreasonably attempted a rescue: see Blackney v Clark [2013] NSWDC 144 (plaintiff injured when attempting to rescue a small boat and its owner). Volenti is rarely successful in such circumstances, as to deny a duty of care because of acceptance of a risk may deter the socially desirable activity of stranger rescuers performing the task of rescue: Chapman v Hearse (1961) 106 CLR 112. More complicated is the situation where the rescuer contributes to the

victim’s injury, that is, claims in negligence against the good Samaritan.

Good Samaritans 13.99 One of the significant outcomes of the civil liability legislation was the protection given to the good Samaritan providing assistance in an emergency. The protection varies in [page 360] each jurisdiction. For example, in New South Wales, s 57(1) of the Civil Liability Act 2002 (NSW) provides: A good samaritan does not incur any personal civil liability in respect of any act or omission done or made by the good samaritan in an emergency when assisting a person who is apparently injured or at risk of being injured.

‘Good samaritan’ is defined as ‘a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured’: Civil Liability Act 2002 (NSW) s 56. There is no exclusion from liability if it was the good Samaritan’s intentional or negligent act or omission that led to the need for the assistance (s 58(1)) or their ability to exercise reasonable care was significantly impaired by alcohol or drugs: s 58(2). 13.100 The protection of good Samaritans in the Victorian legislation applies if the assistance, advice or care is given in good faith and applies even if it was the good Samaritan’s act or omission that caused the emergency, but not to any act or omission of the good Samaritan that occurs before the assistance, advice or care: Wrongs Act 1958 (Vic) s 31B. See also Civil Law (Wrongs) Act 2002 (ACT) Ch 2 Pt 2.1; Personal Injuries (Liabilities and Damages) Act 2002 (NT) s 8; Civil Liability Act 1936 (SA) s

74; Civil Liability Act 2002 (Tas) Pt 8A; Civil Liability Act 2002 (WA) Pt 1D. There is no equivalent protection in Queensland.

Public safety entities 13.101 In Queensland, there is no good Samaritan protection in the Civil Liability Act 2003. However, ss 26 and 27 of the Civil Liability Act 2002 (Qld) protect persons performing duties to enhance public safety for prescribed entities and the prescribed entities themselves, if aid or assistance is rendered to a person in distress. To be within the sections of the Act: the assistance must have been provided while performing duties to enhance public safety; an emergency must have existed; and the assistance must have been provided in good faith, without reckless disregard for the safety of the person in distress or another. The entities are prescribed in the Civil Liability Regulation 2003 (Qld) Schs 1 and 2, for example the Queensland Ambulance Service and Surf Life Saving Queensland. The section does not affect the operation of the Law Reform Act 1995 (Qld) Pt 5, which protects medical personnel when providing assistance: Civil Liability Act 2003 (Qld) ss 26(2) and 27(2).

Volunteers 13.102 Volunteer work within the community, like the assistance of good Samaritans, is to be encouraged. Protection from civil liability is provided for volunteers carrying out community work, if done in good faith. [page 361] The protection of volunteers is limited in that it will not apply if the volunteer committed a criminal offence at the time of the negligence or drugs

or alcohol impaired them. Also, if the act or omission was not within the scope of the community work of the organisation for which the volunteer worked or it was against instructions, the volunteer cannot claim the legislative protection. See Civil Law (Wrongs) Act 2002 (ACT) Ch 2, Pt 2.2; Civil Liability Act 2002 (NSW) Pt 9; Personal Injuries (Liability and Damages) Act 2002 (NT) s 7; Civil Liability Act 2003 (Qld) Ch 2, Pt 3, Div 2, Subdiv 3; Volunteers Protection Act 2001 (SA); Civil Liability Act 2002 (Tas) Pt 10; Wrongs Act 1958 (Vic) Pt IX; Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) Pt 2. 13.103 Protection is also provided to those who donate food if it was provided in good faith for a charitable or benevolent purpose and with the intention that the consumer would not pay for the food. See Civil Law (Wrongs) Act 2002 (ACT) Ch 2, Pt 2.2A; Civil Liability Act 2002 (NSW) Pt 8A; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 7A; Civil Liability Act 2003 (Qld) Ch 2, Pt 3, Div 2, Subdiv 2; Civil Liability Act 1936 (SA) s 74A; Civil Liability Act 2002 (Tas) Pt 8B; Wrongs Act 1958 (Vic) Pt VIB; Volunteers and Food and Other Donors (Protection from Liability) Act 2002 (WA) Pt 3.

6

Exclusion of Liability Clauses

13.104 A party may seek to modify the allocation of a risk by stipulating a reduction, or even an exclusion, from liability. If the other party freely accepts the exclusion, then it may be a case of voluntary assumption of the risk. Legislation in some jurisdictions has provided protection against unreasonable exemption clauses, for example the Contracts Review Act 1980 (NSW). Exclusion clauses are construed strictly, so in order to exclude liability for

negligence, the exemption must either refer specifically to negligence or cover it necessarily by referring to all bases of liability: Davis v Pearce Parking Station Pty Ltd (1954) 91 CLR 642 at 649; Alderslade v Hendon Laundry Ltd [1945] 1 All ER 244. Therefore, a general exclusion of liability in negligence may be too uncertain if the negligence arises in a way that was not contemplated by the parties. It is more likely to be effective if the exclusion clause identifies the basis for liability: Pegler v Wang (UK) Ltd (2000) BLR 218. 13.105 Australian courts are reluctant to interpret exclusion clauses as ousting tortious liability. See, for example, Evans v Port of Brisbane Authority (1992) Aust Torts Reports ¶81-181, where scaffolding collapsed, injuring the plaintiff. The defendant attempted to rely on an exclusion clause contained in the by-laws that excluded liability ‘for any loss, damage, delay or detention whatsoever … including loss, damage, delay or detention sustained by any vessel, occasioned by delay, arising from riots, strikes etc, due to natural or accidental circumstances or which may arise from any breakdown’. The Queensland Court of Appeal held that the clause only applied to economic loss arising from breach of contract, not to negligence leading to personal injury. [page 362] Exclusion clauses were discussed in Macleay Pty Ltd (t/as Wobbies World) v Moore (1992) Aust Torts Reports ¶81-151 at 61,151, where Brooking J, with whom Fullagar and Gobbo JJ agreed, indicated: There has not at any stage been any real discussion of the proper basis or bases in legal principle of the defence or of whether the condition prevents the duty of care from arising or, on the other hand, merely provides a shield against liability in damages. There has been no discussion of whether the condition may afford a defence to an action in tort by reason of the existence of a contract excluding liability, or by reason of the doctrine of volenti non fit injuria, or by reason of ‘waiver’ … or by reason of some other doctrine.

In that case, the plaintiff was injured on a slide at the defendant’s amusement park. She sued the defendant, who denied liability on the basis of a large notice by the entrance to the park which purported to exclude any liability of the defendant to any entrant. The plaintiff had not seen the notice before entering the park. The Appeal Division of the Supreme Court of Victoria held that the large notice did not exclude the defendant’s liability because the defendant had not taken reasonable steps to bring it to the plaintiff’s attention.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 10. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 6.

1.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

2.

Queensland Legislative Assembly, Parliamentary Debates, Civil Liability Bill, 2 April 2003.

[page 363]

Chapter 14 Limitation of Actions 1

Introduction

14.1 Under the common law, there is no prescribed limitation period within which a plaintiff must commence their action. Only equity recognised the possible effect of delay and required a plaintiff to act within a reasonable time so as not to lose an equitable remedy (the doctrine of laches). To impose prescribed limitation periods, statutes of limitations have been passed by all legislatures in Australia, the current legislation being Limitation Act 1985 (ACT); Limitation Act 1969 (NSW); Limitation Act 1981 (NT); Limitation of Actions Act 1974 (Qld); Limitation of Actions Act 1936 (SA); Limitation Act 1974 (Tas); Limitation of Actions Act 1958 (Vic); Limitation Act 2005 (WA). 14.2 Limitation legislation is seen as necessary for reasons grounded in public policy. Imposing a limitation upon the right to commence an action ensures some certainty in the conduct of human affairs, including commerce and the administration of justice. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552; 139 ALR 1 at 8–9, McHugh J explained the rationale of limitation periods as follows: The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their

affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

14.3 The effect of the limitation legislation is that no court should entertain proceedings for the enforcement of certain rights if the proceedings are commenced after the lapse of the specified limitation period. 14.4 Within the limitation legislation in the various Australian jurisdictions, there is little conformity. Amendments made to the legislation over the years add further complications [page 364] by applying to actions on or after specific dates. For example, in New South Wales, different provisions apply according to whether the claim for personal injury arose before 1 September 1990, between 1 September 1990 and 5 December 2002 or on, or after, 6 December 2002. Western Australia enacted the Limitation Act 2005 which applies to actions on or after 15 November 2005, while all other actions are regulated by the Limitation Act 1935 (WA). Due to the possibility of a court granting an extension of the limitation period (see 14.53), provisions relating to actions that are out of the limitation period remain relevant. 14.5 In addition to the limitation legislation, specific statutes may also provide a limitation period and, in such circumstances, the limitation legislation does not apply: Limitation Act 1985 (ACT) s 4(a); Limitation Act 1969 (NSW) s 7(a); Limitation Act 1981 (NT) s 5; Limitation of Actions Act

1974 (Qld) s 7; Limitation Act 1974 (Tas) s 38; Limitation of Actions Act 1958 (Vic) s 33; Limitation Act 1935 (WA) s 49; Limitation Act 2005 (WA) s 9. In South Australia, if the limitation period prescribed is less than 12 months, the period is extended to 12 months by s 47 of the Limitation Act 1936 (SA). Legislation may also provide that no limitation period applies to particular claims: see Dust Diseases Tribunal Act 1989 (NSW) s 12A; Limitation Act 1981 (NT) s 12(2)(a); Limitation of Actions Act 1974 (Qld) s 11(2); Limitation of Actions Act 1958 (Vic) s 27B(2)(d) (no limitation period applies to a plaintiff suffering from a dust disease). 14.6 In litigation, the limitation period plays an important role. Consideration must be given to: the applicable time period according to the type of action; the commencement date of the limitation period; whether the period has been suspended; and whether the court has the discretion to extend the period if it has expired.

2

The Limitation Period

14.7 If a plaintiff fails to commence the action within the period prescribed by the limitation legislation, the cause of action is normally extinguished and becomes statute-barred. If a cause of action is out of the relevant period, the defendant may plead this as a defence, the onus lying upon the plaintiff to prove that their claim is not statute-barred: Commonwealth of Australia v Verwayen (1990) 170 CLR 394. Previously, limitation periods were often tied to the form of action (for example, trespass or case), but today limitation periods are qualified by the form of damage — either personal injury or property damage.

Personal Injury 14.8 A period of three years is the limitation in the case of personal injuries: Limitation Act 1985 (ACT) s 16B(2); Limitation Act 1969 (NSW) ss 18A and 50C; Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s 11; Limitation of Actions Act 1936 (SA) s 36; Limitation Act 1974 (Tas) s 5(1); Limitation of Actions Act 1958 (Vic) s 5(1AA); Limitation Act 2005 (WA) s 14(1). [page 365] 14.9 With the legislative reforms in personal injury actions as a result of the Review of the Law of Negligence — Final Report (the Ipp Report),1 some jurisdictions imposed further restrictions on the commencement of actions. For example, in Queensland, despite the fact that an action may be within the limitation period, the Personal Injuries Proceedings Act 2002 allows a court to strike out an action if procedural notice requirements have not been met. Section 9(3) of the Personal Injuries Proceedings Act 2002 (Qld) requires the plaintiff to give notice to the defendant within nine months of the incident or the first symptoms or within one month if legal advice is sought. It is suggested that courts will be willing to allow an action to continue (as provided in s 43 of the Personal Injuries Proceedings Act 2002 (Qld)) that is within the limitation period, if it is established that the plaintiff’s failure to deliver notice as required is not due to any lack of diligence on their part, will not prejudice the defendant and it is in the interests of justice to allow the plaintiff to continue with their claim: Taylor v Stratford [2004] 2 Qd R 224; Adams v Vesco Nominees Pty Ltd [2004] QDC 305. See also Civil Law (Wrongs) Act 2002 (ACT) s 51; Personal Injuries (Civil Claims) Act 2003 (NT) s 8 (provision not yet commenced).

Property Damage and Economic Loss 14.10 A limitation period of six years is stipulated for property damage and economic loss claims, except in the Northern Territory where it is three years: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s 14(1) (b); Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act 1936 (SA) s 35(c); Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 13(1). 14.11 In some jurisdictions there is separate legislation that governs defective building work: Building Act 2004 (ACT) s 142 (10 years); Building Act 1993 (NT) s 160 (10 years); Development Act 1993 (SA) s 73 (10 years); Building Act 2000 (Tas) ss 255 and 256; Building Act 1993 (Vic) s 134 (10 years). 14.12 In the trespass action of conversion, specific provisions apply if there are successive conversions of the goods. The limitation period of six years (or three years in the Northern Territory) is generally from the date of the accrual of the cause of action in respect of the first conversion or detention: Limitation Act 1985 (ACT) s 18; Limitation Act 1969 (NSW) s 21; Limitation Act 1981 (NT) s 19(1); Limitation of Actions Act 1974 (Qld) s 12(1); Limitation Act 1974 (Tas) s 6(1); Limitation of Actions Act 1958 (Vic) s 6(1); Limitation Act 2005 (WA) s 60 (for actions accruing on or after 15 November 2005). The Limitation of Actions Act 1936 (SA) contains no provisions for successive conversions, creating open-ended liability due to the continuing conversion from day to day or as title was passed to others in a chain. [page 366]

The reason for such provisions is that the legislatures have taken the view that it would be wrong for a plaintiff to allow an indefinite period of time to sue by delaying a demand. The effect of such provisions is to bar the bringing of legal action six years after the original interference, whether suing in conversion or detinue and irrespective of different persons committing wrongs. In Queensland and most other jurisdictions, there is an additional effect in that the provision purports to extinguish title to the goods as well as the right to sue, that is, after expiration of the limitation period, the plaintiff has no title and cannot retake possession without becoming a trespasser. See Limitation Act 1981 (NT) s 19(2); Limitation of Actions Act 1974 (Qld) s 12(2); Limitation Act 1974 (Tas) s 6(2); Limitation of Actions Act 1958 (Vic) s 6(2). 14.13 As for a continuing trespass to land (see 4.46), a fresh cause of action arises each day and, therefore, the plaintiff would have six years from the date the continuing trespass ended: Hardy v Ryle (1829) 9 B & C 603; 109 ER 224.

3

Accrual: Commencement of the Period

14.14 Depending upon the jurisdiction, the date of the action and the type of loss claimed, the limitation period is reckoned from either the date the cause of action arose or accrued, or from the date of discoverability. 14.15 In the jurisdictions where the limitation period commences as at the date of the action accruing, the distinction between trespass and actions on the case is important. In a trespass action, which is actionable per se, the action will accrue when the act is committed which violates the right. In actions on the case, the cause of action will normally accrue when the damage is suffered, as damage is required to complete the action.

Personal Injury 14.16 For claims for personal injuries, in the Australian Capital Territory (not including personal injury that is a disease or a disorder), the Northern Territory, Queensland and South Australia, the period commences from the date the action accrues. In the remaining jurisdictions, the limitation period commences at the date of discoverability.

Date of action accruing 14.17 If the limitation period commences upon the accrual of the action and a plaintiff suffers personal injury, the damage is said to have occurred when the injury was first suffered. Technically, this means that even if a plaintiff were unaware of the injury, time would have commenced to run. This could lead to a plaintiff’s action being statute-barred as they had no reasonable means of knowledge of a possible claim. An example of a plaintiff being unaware of their right to claim is Cartledge v E Jopling & Sons Ltd [1963] AC 758, where the House of Lords had before it personal injuries actions involving lung damage (silicosis) arising from the inhalation of dust over a long period of time in the workplace. The actions were commenced within the relevant limitation period [page 367] if time was calculated from when they had, or might reasonably have, acquired knowledge of the injury. But Lord Reid stated (at 771): … a cause of action accrues as soon as a wrongful act has caused personal injury beyond what can be regarded as negligible, even when that injury is unknown to and cannot be discovered by the sufferer, and that further injury arising from the same act at a later date does not give rise to a further cause of action.

The application of that test produced manifest injustice because medical evidence established there was some lung damage in existence which the

plaintiffs could not have become aware of even as a result of the best medical tests, such as through X-rays. Hence, they were statute-barred. Lord Reid commented upon the injustice as follows (at 772): It appears to me to be unreasonable and unjustifiable in principle that a cause of action should be held to accrue before it is possible to discover any injury and, therefore, before it is possible to raise any action. If this were a matter governed by the common law I would hold that a cause of action ought not to be held to accrue until when the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as were reasonable in the circumstances. The common law ought never to produce a wholly unreasonable result, nor ought existing authorities to be read so literally as to produce such a result in circumstances never contemplated when they were decided. But the present question depends on statute, the Limitation Act 1939, and s 26 of that Act appears to me to make it impossible to reach the result which I have indicated. That section makes special provisions where fraud or mistake is involved: it provides that time shall not begin to run until the fraud has been or could with reasonable diligence have been discovered. Fraud here has been given a wide interpretation, but obviously it could not be extended to cover this case. The necessary implication from that section is that, where fraud or mistake is not involved, time begins to run whether or not the damage could be discovered. So the mischief in the present case can only be prevented by further legislation.

The obvious injustice of this led to the English legislation being amended to allow extensions of time in personal injury cases. For the extension of time limitations in Australia, see 14.53. 14.18 In Australia, Cartledge v E Jopling & Sons Ltd was often relied upon by trial judges but, as noted by Wilcox J of the Federal Court in Nixon v Philip Morris (Australia) Pty Ltd (1999) 165 ALR 515 at [81], it had not been upheld or applied by the High Court or any intermediate Court of Appeal. In Wilson v Horne (1999) 8 Tas R 363 at [55], Evans J stated: It can be extremely difficult to determine when a personal injury was first suffered. To hold that personal injury did not occur until the plaintiff discovered it, or it was reasonably possible for the plaintiff to do so, simply establishes the time when it was suffered for the purposes of the accrual of a cause of action. The cause of action cannot accrue until that date.

In Wilson v Horne, a family member had sexually abused the respondent between the ages of five and 12. Fourteen years later, the respondent’s

repressed memories returned and she suffered post-traumatic stress disorder. For time limitations in respect of actions for child abuse, see 14.43. [page 368]

Date of discoverability 14.19 The limitation legislation of the Australian Capital Territory (for personal injury that includes a disease or a disorder), New South Wales, Tasmania, Victoria and Western Australia provides for the period to commence from the date of discovery: Limitation Act 1985 (ACT) s 16B(2) (causes of action arising on or after 1 July 2003); Limitation Act 1969 (NSW) ss 50A, 50C and 50D (injuries sustained on or after 6 December 2002); Limitation Act 1974 (Tas) s 5A(3) (actions accruing after 1 January 2005); Limitation of Actions Act 1958 (Vic) ss 27D and 27F; Limitation Act 2005 (WA) ss 6 and 55. 14.20 The date of discovery allows the possibility that the commencement of the limitation period could extend interminably into the future and could leave potential defendants open to liability many years after the act or omission. Therefore, where the date of discoverability marks the commencement of the limitation period, some legislation provides for a longstop running 12 years from the date the act or omission took place. This means that an action will be statute-barred if no injury attributable to the defendant has occurred within 12 years of the incident: Limitation Act 1969 (NSW) s 50C(1)(b); Limitation Act 1974 (Tas) s 5A(3)(b); Limitation of Actions Act 1958 (Vic) ss 27B(1)(b) and 27D. There is no long-stop in the legislation of the Australian Capital Territory and Western Australia.

Property Damage 14.21

The time limitation period for property damage commences upon

the action accruing. However, identifying the time an action accrues may give rise to problems if the property damage is caused by a latent defect. 14.22 Under the common law, in respect of latent property damage, the decision of Cartledge v E Jopling & Sons Ltd [1963] AC 758 (see 14.17) was applied by the House of Lords in Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1. The case involved a claim by chimney owners against consulting engineers who had been engaged to design a chimney. The design incorporated some material, unsuitable for the specific construction, which then cracked, resulting in necessary extensive remedial work. The defendants were engaged in March 1969 and the chimney built in June and July of that year; cracks had developed by April 1970 but these could not have been discovered with reasonable diligence until October 1972. The damage was actually discovered in November 1977 and a writ issued in October 1978. The House of Lords held that time ran from April 1970 when undiscoverable cracks began to develop and so the action was statute-barred. Legislation was passed in England permitting an extension of the limitation period for property damage. See 14.63 for extensions of time in property claims in Australia. 14.23 The Australian High Court also adopted the approach that the cause of action accrues when the damage is suffered as opposed to when the plaintiff knows, or should have known, of the cause of action: Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247. But see also [page 369] Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27 at 66–7 (AD), where it was stated, ‘[t]ime began to run in the present case when the latent defect first became known or manifest’.

14.24 The apparent harshness of the approach of Cartledge v E Jopling & Sons Ltd and Pirelli General Cable Works Ltd v Oscar Faber & Partners is tempered by the precise manner in which the damage is categorised and the Australian High Court has been both liberal and creative in the way it has approached latent property defect cases. The damage may be viewed literally as physical property damage as did the House of Lords in Pirelli General Cable Works Ltd v Oscar Faber & Partners. An alternate classification is that, until the damage is rectified, the plaintiff has suffered a diminution in the economic value of the property which is a continuing economic loss and, normally, will be forced to finance remedial work at a cost measured in economic terms when the remedial work is paid for. Both of these later alternatives raise the issue of categorising the damage as economic rather than merely physical. Deane J took such an approach in Sutherland Shire Council v Heyman (1985) 157 CLR 424, although he was in a minority in classifying the damage as economic in that case. The High Court’s creativity finally emerged in Bryan v Maloney (1995) 182 CLR 609; 128 ALR 163, with majority support for categorisation of damage in that case as economic, notwithstanding its origin in negligent building work. Such categorisation allowed a subsequent purchaser to sue the original builder, notwithstanding the time lapse between the defective building work and the expenditure on necessary rectification work. See also Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522. 14.25 As noted at 14.11, legislation exists that imposes specific limitation periods for claims for defective buildings. For example, in Tasmania a cause of action for any building work cannot be brought after 10 years from when the action first accrues: Building Act 2000 (Tas) s 255. Section 256 specifies the accrual of the cause of action with reference to occupancy.

Economic Loss

14.26 As with latent defects in property, claims for economic loss may also give rise to issues in identifying when the cause of action accrued. In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247, the plaintiff was the state of Western Australia which alleged that it suffered economic loss as a result of misrepresentations made to it by the defendants. These misrepresentations had caused the plaintiff to agree to indemnify the National Bank of Australia when the bank provided a credit facility to a third party, Rothwells Ltd. The issue before the High Court was whether the plaintiff’s cause of action had accrued at the time when the plaintiff executed the indemnity in favour of the bank, or at the later time when the bank sought to enforce that indemnity. In finding that the cause of action was not complete until the plaintiff was actually required to indemnify the bank, the court categorised the loss as merely being contingent at the time of execution of the documents. The cause of action was not complete until [page 370] that contingency was fulfilled upon the request by the bank for the plaintiff to indemnify it in regard to its losses. The court held that to find otherwise would be ‘unjust and unwise’ as it would require a plaintiff to commence an action on the possibility that the contingency might be fulfilled. As Mason CJ, Dawson, Gaudron and McHugh JJ expressed it (at CLR 527; ALR 254–5): Economic loss may take a variety of forms and, as Gaudron J noted in Hawkins v Clayton [(1988) 164 CLR 539 at 600–1; 78 ALR 69], the answer to the question when a cause of action for negligence causing economic loss accrues may require consideration of the precise interest infringed by the negligent act or omission. The kind of economic loss which is sustained and the time when it is first sustained depend upon the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected. With economic loss, as with other forms of damage, there has to be some actual damage. Prospective loss is not enough. When a plaintiff is induced by a misrepresentation to enter into an agreement which is, or proves to be, to his or her disadvantage, the plaintiff sustains a detriment in a general sense on entry into the agreement. That is because the agreement subjects the plaintiff to obligations and liabilities which exceed the value or worth of the rights and benefits which it confers upon the

plaintiff. But, as will appear shortly, detriment in this general sense has not universally been equated with the legal concept of ‘loss or damage’. And that is just as well. In many instances the disadvantageous character or effect of the agreement cannot be ascertained until some future date when its impact upon events as they unfold becomes known or apparent and, by then, the relevant limitation period may have expired. To compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust. Moreover, it would increase the possibility that the courts would be forced to estimate damages on the basis of likelihood or probability instead of assessing damages by reference to established events. In such a situation, there would be an ever-present risk of undercompensation or overcompensation, the risk of the former being the greater. [footnotes omitted]

In Commonwealth v Cornwell (2007) 229 CLR 519; 234 ALR 148 at [5], the High Court stated: … to show the existence of a completely constituted cause of action in negligence, a plaintiff must be able to show duty, breach, and damage caused by the breach; accordingly, in the ordinary case, it is at the time when that damage is sustained that the cause of action ‘first accrues’ for the purposes of a provision such as s 11 of the Limitation Act [(ACT)].

That case involved a claim for economic loss arising from negligent advice, given in 1965, concerning the plaintiff’s eligibility for membership of a Commonwealth superannuation fund. The High Court held that the loss was sustained upon the plaintiff’s retirement and it was upon retirement that the action in tort accrued; therefore, the plaintiff’s claim was within the six-year limitation period under the Limitation Act 1985 (ACT). See also Hawkins v Clayton (1988) 164 CLR 539; 78 ALR 69, where solicitors failed to notify the plaintiff of his appointment of executor and bequest under a client’s will for six years. This delay led to economic loss in the form of a fine for late payment of duty and the gift of a house falling into a state of disrepair. The High Court held that there was no cause of action until the assumption of the position of executor by the plaintiff and, therefore, the action was within the limitation period. [page 371]

4

Suspension and Extension of the Limitation Period

14.27 In Rhodes v Smelthurst (1838) 4 M & W 42; 150 ER 1335, it was held that once a limitation period commences it cannot be stopped. However, the limitation legislation in all jurisdictions allows for the suspension and the extension of limitation periods. As with the commencement of the limitation period, there is no uniformity among the Australian jurisdictions, particularly in respect of extensions of time.

Suspension of Time 14.28 The limitation period is suspended in a number of circumstances. In all jurisdictions, the limitation period is suspended (that is, does not commence) while the plaintiff is under a legal disability, there is fraud or concealment, and, in some jurisdictions, if the plaintiff was a victim of abuse as a child. 14.29 The Ipp Report2 examined the limitation of actions in respect of personal injury and made specific recommendations as to children and incapacitated persons. The recommendations imposed responsibility for commencing an action upon the parents, guardian or administrator: at 6.48.

Legal disability 14.30 In all jurisdictions, for persons under a legal disability, the limitation period (except for claims for personal injury) does not commence until the cessation of the disability. For example, in Queensland, s 29 of the Limitation of Actions Act 1974 provides that a plaintiff under a legal disability at the time the cause of action accrues, has six years from the date they cease to be under the disability to commence an action. See also Limitation Act 1985 (ACT) s 30 (three years from disability

ceasing); Limitation Act 1969 (NSW) s 52 (three years from disability ceasing); Limitation Act 1981 (NT) s 36 (three years from disability ceasing); Limitation of Actions Act 1936 (SA) s 45 (extension of time while disability continues up to 30 years from accrual of action); Limitation of Action Act 1974 (Tas) s 26 (six years from disability ceasing, unless lesser number of years is prescribed for such an action); Limitation of Actions Act 1958 (Vic) s 23 (six years from disability ceasing). 14.31 ‘Disability’ is defined in a variety of ways in the legislation: Limitation Act 1985 (ACT) s 2, Dictionary; Limitation Act 1969 (NSW) s 11(3); Limitation Act 1981 (NT) s 4(1); Limitation of Actions Act 1974 (Qld) s 5(2); Limitation of Actions Act 1936 (SA) s 45(2); Limitation of Action Act 1974 (Tas) ss 2, 26; Limitation of Actions Act 1958 (Vic) s 3. The Western Australian legislation contains no general disability provision; instead, specific provisions apply depending upon the age of the plaintiff (Limitation Act 2005 [page 372] (WA) ss 29–32) or whether they have a mental disability: Limitation Act 2005 (WA) ss 35–36. The Tasmanian and Victorian legislation includes the plaintiff’s involvement in war in which the Commonwealth is involved also as a disability: Limitation of Action Act 1974 (Tas) s 28; Limitation of Actions Act 1958 (Vic) s 23(2). 14.32 Children All of the limitation legislation recognises that the limitation period is suspended while the plaintiff is under the age of 18 years for actions other than claims for personal injury. Prior to the implementation of the recommendations of the Ipp Report, the limitation period was suspended if the plaintiff was a child until the child reached the age of 18

years. See, for example, Flemming v Gibson (2001) 34 MVR 40. The Ipp Report recommendations were not adopted by all jurisdictions. 14.33 In New South Wales and Victoria, instead of suspending the limitation period during the minority of the plaintiff, the onus is placed upon the parents or guardian to commence an action within the relevant time period: Limitation Act 1969 (NSW) s 50C; Limitation of Actions Act 1958 (Vic) s 27E. If there is no parent or guardian, then the child should be treated as being under a disability and the time period suspended: Limitation Act 1969 (NSW) s 50F; Limitation of Actions Act 1958 (Vic) s 27J. However, if the parent or guardian, or a person in a close relationship with the parent or guardian, is the potential defendant, different rules apply: see 14.45. 14.34 In Western Australia, a plaintiff under the age of 15 years has six years to commence an action from the date of the action accruing: Limitation Act 2005 (WA) s 30. If the plaintiff is 15, 16 or 17 years old, no action may be commenced once they have attained the age of 21 years, but if they were under the age of 18 at the time the action accrued and were without a guardian at any time before turning 18, the limitation period is suspended for that time: Limitation Act 2005 (WA) ss 31 and 32. This applies to all claims by minors, not just claims for personal injury. 14.35 The Ipp Report recommendations have not been adopted by the Australian Capital Territory, the Northern Territory, Queensland, South Australia or Tasmania. In the Australian Capital Territory, the Northern Territory, Queensland, South Australia and Tasmania, a child is still considered to be under a legal disability in all legal actions and the time period is suspended until the child reaches the age of 18 years: Limitation Act 1985 (ACT) s 30; Limitation Act 1981 (NT) s 36; Limitation of Actions Act 1974 (Qld) ss 5(2) and 29; Limitation of Actions Act 1936 (SA) s 45; Limitation Act 1974 (Tas) ss 2 and 26(1).

However, procedural provisions have been enacted in the Australian Capital Territory, Queensland and South Australia if the claim is for personal injuries. 14.36 In Queensland, in addition to the general suspension of time while the plaintiff is a child, if the claim is for personal injury the parent or guardian of an injured minor must give notice to the defendant within six years of the parent or guardian knowing, or ought reasonably to have known, that the personal injury had occurred or within 18 months of seeking legal advice, whichever is the earlier: Personal Injuries Proceedings Act 2002 [page 373] (Qld) s 20C. If the required notice is not given, the court has the power to strike out the claim even if the action was commenced within the relevant time period under the Limitation of Actions Act 1974 (Qld). If the parent or guardian fails to provide notice as required, an application must be made to the court. 14.37 In the Australian Capital Territory, the limitation commences at the child turning 18 years, and the parent or guardian must give notice to the defendant within six years of the accident or six years of the plaintiff or the plaintiff’s parent or guardian knowing of the injury: Limitation Act 1985 (ACT) s 30A. If the claim is related to health services, the time limitation is six years from the date of injury or the date of discoverability: s 30B. In South Australia, the limitation commences at the child turning 18 years, but if the child is under 15 years, the parent or guardian must give notice to the defendant within six years of the incident: Limitation of Actions Act 1936 (SA) s 45A. 14.38

Mental or physical disability The limitation period is suspended

for a plaintiff who is under a physical or mental disability until the disability ceases. 14.39 In Queensland and Victoria, the definition of ‘disability’ encompasses persons of unsound mind: Limitation of Actions Act 1974 (Qld) s 5(2); Limitation of Actions Act 1958 (Vic) s 3(2). Section 5(3) of the Limitation of Actions Act 1974 (Qld) provides that a person is of unsound mind if they are an involuntary patient under the Mental Health Act 2000 (Qld), a forensic disability client under the Forensic Disability Act 2011 (Qld) or in safe custody of the Governor as allowed by s 647 of the Criminal Code (Qld). In Victoria, a person is presumed to be of unsound mind if they are a protected or represented person under the Guardianship and Administration Act 1986 (Vic): Limitation of Actions Act 1958 (Vic) s 3(3). 14.40 In the other jurisdictions, the inability to manage one’s affairs is expressed in a variety of ways but, generally, involves the plaintiff being unable to manage their affairs due to mental illness or disorder, brain damage or senility: Limitation Act 1985 (ACT) Dictionary definition of ‘under a disability’; Limitation Act 1969 (NSW) s 11(3)(b); Limitation Act 1981 (NT) s 4(1); Limitation of Actions Act 1936 (SA) s 45(2); Limitation Act 1974 (Tas) s 2(2)(b); Limitation Act 2005 (WA) s 3(1). In Kirby v Leather [1965] 2 QB 367, it was held that a person is of unsound mind when they are incapable of managing their affairs as a reasonable person would. See also King v Coupland [1981] Qd R 121. 14.41 Physical disability may also fall within the definitions of ‘disability’: Limitation Act 1985 (ACT) Dictionary of ‘under a disability’; Limitation Act 1969 (NSW) s 11(3)(b)(i); Limitation Act 1981 (NT) s 4(1). 14.42 Prisoners Plaintiffs who are imprisoned may be considered by the legislation to be under a legal disability during the term of their imprisonment. The limitation legislation of New South Wales and the

Northern Territory expressly includes prisoners: Limitation Act 1969 (NSW) s 11(3); Limitation Act 1981 (NT) s 4(1). However, such plaintiffs are expressly excluded by the South Australian statute: Limitation of Actions Act 1936 (SA) s 46. [page 374]

Victims of child abuse 14.43 Sexual abuse of a child may be civilly pursued as an action in trespass (assault and/or battery), negligence or intentional infliction of psychiatric harm: Wilkinson v Downton [1897] 2 QB 57. In Stingel v Clark (2006) 226 CLR 442; 228 ALR 229, the High Court had to consider whether a claim in trespass to person for intentional interference through sexual abuse during the childhood of the plaintiff was statute-barred under the Victorian limitation legislation. Section 5(1A) of the Limitation of Actions Act 1958 (Vic) provides that no action for damages for negligence, nuisance or breach of duty, where the damages claimed by the plaintiff includes damages for personal injuries, may be brought after the expiration of six years from when the plaintiff knows they have suffered the personal injury and they know the injuries were caused by the act or omission of some person. The question before the court was whether an intentional trespass was a breach of duty. By a majority of 5:2, it was held that an intentional trespass was a breach of duty. Gleeson CJ, Callinan, Heydon and Crennan JJ stated (at [17]): There is no discernible difference, in point of legislative policy, between victims of intentional and unintentional torts. No legislative purpose is served by putting the perpetrators of intentional torts in a better position than the perpetrators of unintentional torts. There being … two constructions reasonably open, that should be preferred which produces a fair result that promotes the purpose of the legislation.

In W v Eaton [2011] TASSC 4, the High Court’s reasoning was applied to the Tasmanian legislation (personal injury claims arising from negligence,

nuisance, or breach of duty: Limitation Act 1974 (Tas) s 5). See also New South Wales v Radford [2010] NSWCA 276. In Stubbings v Webb [1993] AC 498; 1 All ER 322, the House of Lords held that, as the plaintiff’s claim was made in trespass to the person, a period of six years from cessation of the age disability applied by virtue of the English legislation, with no allowance for any extension. Extensions of the period were allowed by the relevant legislation if the claim was one for damages for personal injury arising from negligence, breach of duty or nuisance, but not for trespass. Therefore, the action was statute-barred. This case was overruled in A v Hoare [2008] 1 AC 844, the House of Lords referring to the decision of Stingel v Clark (2006) 226 CLR 442; 228 ALR 229 with approval. 14.44 The issue of child abuse and limitation periods has caused much debate and was considered by the Ipp Report. Recognising that victims of child abuse often repress memories, it was recommended that special provision had to be made to allow a victim to seek compensation, despite the lapse of years: see Ipp Report at [6.54], Recommendation 25.3 [page 375] 14.45 In Tasmania and Western Australia, in actions by a child who has been injured by a parent, guardian or close associate of their parent or guardian, the time limitation does not commence until that person turns 25: Limitation Act 1974 (Tas) s 26(7); Limitation Act 2005 (WA) s 33. New South Wales and Victoria have gone further, removing the limitation period for all relevant child abuse claims: Limitation Act 1969 (NSW) s 6A (inserted by Limitation Amendment (Child Abuse) Act 2016); Limitation of Actions Act 1958 (Vic) Pt IIA, Div 5 (inserted by Limitation of Actions Amendment (Child Abuse) Act 2015 (Vic)).

Fraud or improper conduct

14.46 In all Australian jurisdictions, except Western Australia (for actions accruing on or after 15 November 2005), the limitation period in cases of fraud is suspended. An action based upon fraud requires that fraud is an element of the action, for example fraudulent misrepresentation. 14.47 There are some jurisdictional differences in the provisions. In Queensland, s 38(1) of the Limitation of Actions Act 1974 (Qld) provides that if the action is based upon the fraud of the defendant or their agent or the defendant has fraudulently concealed the right of action, the limitation period commences when the plaintiff discovers the fraud or when they could have discovered it with reasonable diligence. See also Limitations Act 1974 (Tas) s 32(1); Limitation of Actions Act 1958 (Vic) s 27. 14.48 In the Australian Capital Territory, New South Wales and the Northern Territory, the time before the plaintiff discovers the fraud, or could have discovered the fraud with reasonable diligence, is not included in the limitation period. In these jurisdictions, the limitation period is also suspended if the identity of the defendant is concealed: Limitation Act 1985 (ACT) s 33(1); Limitation of Actions Act 1969 (NSW) ss 55(1) and 56; Limitation Act 1981 (NT) s 42(1). 14.49 In South Australia and Western Australia (in respect of actions accruing before 15 November 2005), the limitation legislation only suspends equitable proceedings involving fraud for the recovery of land or rent: Limitation of Actions Act 1936 (SA) s 25; Limitation Act 1935 (WA) s 27. 14.50 The Limitation Act 2005 (WA), which applies to actions accruing on or after 15 November 2005, does not suspend actions of fraud. Instead, fraud is a ground upon which the limitation period may be extended up to three years from when the action ought reasonably to have been commenced: Limitation Act 2005 (WA) s 38. 14.51

‘Fraud’ has been given a wider meaning than common law ‘deceit’

by the courts. In Seymour v Seymour (1996) 40 NSWLR 358 at 372, Mahoney ACJ stated: In my opinion, there must be in what is involved a consciousness that what is being done is wrong or that to take advantage of the relevant situation involves wrongdoing.

14.52 The plaintiff bears the onus of showing that they could not have discovered the fraud or mistake if they had exercised reasonable diligence: Peco Arts Inc v Hazlitt Gallery Ltd [1983] 3 All ER 193 (drawing bought as an original by a famous 19th-century artist discovered to be a reproduction 10 years after purchase). [page 376]

Extension of Time 14.53 The legislation differs from jurisdiction to jurisdiction in terms of the circumstances and extent of the discretion in the courts to extend the limitation period. Nearly all jurisdictions permit some extension in the case of personal injuries, but only a few jurisdictions allow an extension of the limitation period in claims of property.

Personal injury 14.54 In respect of claims for personal injury, the limitation legislation of all jurisdictions provides the means for an extension of the limitation period, but in a variety of ways. 14.55 For claims for personal injury on or after 1 July 2003, a court cannot extend the limitation period in the Australian Capital Territory: Limitation Act 1985 (ACT) ss 16B, 36(5)(A). For injuries before 1 July 2003, a discretion may be exercised if it is just and reasonable to do so: Limitation Act 1985 (ACT) s 36(2).

14.56 In New South Wales, a court may extend the limitation period for up to five years if it is ‘just and reasonable’, if the action accrued on or after 1 September 1990 but before 6 December 2002: Limitation Act 1969 (NSW) s 60C. However, if the claim is based upon a latent injury, the limitation period may be extended indefinitely: Limitation Act 1969 (NSW) ss 60F–60J. If the action accrued on or after 6 December 2002, a plaintiff may apply for an extension of the 12-year long-stop limitation as imposed by s 50C, but it must be proven that the extension is ‘just and reasonable’ and that the extension may not extend ‘beyond the period of 3 years after the date on which the cause of action is discoverable’: Limitation Act 1969 (NSW) s 62A(2). If the extension is in respect of an action that accrued before 1 September 1990, there must be ‘a material fact of a decisive character relating to the cause of action that was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action’: Limitation Act 1969 (NSW) s 58. 14.57 In the Northern Territory and South Australia, the court must be satisfied that the grant of the extension is just in all of the circumstances: Limitation Act 1981 (NT) s 44; Limitation of Actions Act 1936 (SA) s 48. 14.58 In Queensland, the court must be satisfied a material fact of decisive character exists, before it will exercise its discretion to extend the limitation period to one year after the plaintiff became aware of the material fact: Limitation of Actions Act 1974 (Qld) s 31(2). Section 30(1)(a) of the Limitation of Actions Act 1974 (Qld) states that material facts include: the fact of the occurrence of the negligence, trespass, nuisance or breach of duty; the identity of the defendant; the fact that the negligence, trespass, nuisance or breach of duty has caused personal injury; and

the nature and extent of the personal injury caused by the negligence, trespass, nuisance or breach of duty. [page 377] 14.59 To be of a decisive nature, the material fact must make a reasonable person, with knowledge of those facts and having appropriate advice, regard those facts as showing that an action would have a reasonable chance of success and result in an award of damages to justify the action and that it is in the person’s interests to bring an action: Limitation of Actions Act 1974 (Qld) s 30(1)(b). ‘Appropriate advice’ is defined as the advice of a competent person, qualified in their respective fields: 30(2). Section 30(1)(c) provides that a fact is not within the means of knowledge of a person at a particular time if they do not know the fact at that time and have taken all reasonable steps to discover that fact. This refers to the means of knowledge of the person, not that of a reasonable person: Dick v University of Queensland [2000] 2 Qd R 476. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1, the plaintiff alleged that a doctor in the employ of the defendant caused her to have a hysterectomy when alternative treatments were available and that she was not advised of these alternatives by the doctor. Although Kirby J disagreed with the final orders made, all the judges agreed that the test to be applied in regard to the possible prejudice to the prospective defendant was referable to the state of affairs at the time of the application for the extension of time. It was not determined by a comparison with the situation which would have existed towards the end of the original three-year limitation period. In the circumstances of this case, when the operation took place more than 17 years before and the operating doctor, Dr Chang, had not been located, McHugh J (with whom Dawson J agreed) commented (at CLR 555; ALR 11):

If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.

14.60 The power to extend the limitation period will only be granted if justice is best served; therefore, even if the court is satisfied that a material fact of decisive character exists, an extension of time is not automatic. In Brisbane South Regional Health Authority v Taylor, Toohey and Gummow JJ commented (at CLR 544; ALR 5): The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.

14.61 In Tasmania, if the cause of action accrues on or after 1 January 2005, a judge may extend the limitation period having regard to the justice of the case, in particular, [page 378] whether time has prejudiced a fair trial, the extent and nature of the plaintiff’s loss and the defendant’s conduct: Limitation Act 1974 (Tas) s 5A(5). For injuries prior to this date, an extension may be granted if it is thought to be just and equitable, but may not exceed six years from the date of accrual of the action: Limitation Act 1974 (Tas) s 5(3). The Victorian legislation has a similar approach: see Limitation of Actions Act 1958 (Vic) ss 23A (cause of

action accrued before 21 May 2003), 27K (cause of action accrued on or after 21 May 2003). 14.62 In Western Australia, a court may extend the limitation period up to three years from when the plaintiff was aware, or ought reasonably have been aware, of the cause of their injury and to whom the act or omission was attributable and their identity: Limitation Act 2005 (WA) s 39(4). To grant the extension, the court must be satisfied that these three factors were not known to the plaintiff before the limitation period expired: Limitation Act 2005 (WA) s 39(3).

Property damage 14.63 The limitation legislation of only three jurisdictions permits an extension in property damage. In the Northern Territory and South Australia, a court may extend by any period if material facts have not been ascertained and it is just and equitable: Limitations Act 1981 (NT) s 44; Limitation of Actions Act 1936 (SA) s 48. In the Australian Capital Territory, a court may extend the limitation period up to 15 years from the cause of action arising if it is just and equitable: Limitation Act 1985 (ACT) s 40.

5

Contribution Between Tortfeasors

14.64 The limitation legislation in the Australian Capital Territory, New South Wales, the Northern Territory and Queensland restricts an action for contribution as between tortfeasors. In those jurisdictions, the limitation period is either two years from the date the cause for contributions accrues or four years from the date the limitation of the principal cause of action ends, whichever expires first: Limitation Act 1985 (ACT) s 21; Limitation Act 1969 (NSW) s 26; Limitation Act 1985 (NT) s 24; Limitation of Actions Act 1974 (Qld) s 40.

14.65 In South Australia, an action for contribution must be brought within the original limitation period that applies to the claim or within two years after the damages payable are determined, whichever is the longer period: Limitation of Actions Act 1936 (SA) s 6(4). 14.66 In Tasmania, the action must be brought within 12 months of the original writ being served: Wrongs Act 1954 (Tas) s 3(5). Victoria is similar but provides that proceedings must be commenced either within the 12 months or within the time limitation of the action, whichever is the longest: Wrongs Act 1958 (Vic) s 24(4). 14.67 In Western Australia, a two-year time limitation applies from the date the cause of action accrued: Limitation Act 2005 (WA) s 17. For more detail on contribution between tortfeasors, see Chapter 21. [page 379]

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 28. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Chs 5 and 11. B Mathews, ‘Limitation Periods and Child Sexual Abuse Cases: Law, Psychology, Time and Justice’ (2003) 11 TLJ 218. —, ‘Post-Ipp Special Limitation Periods for Cases of Injury to a Child by a Parent or Close Associate: New Jurisdictional Gulfs’ (2004) 12 TLJ 239.

1.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

2.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

3.

For a discussion of time limits and claims of child abuse, see B Mathews, ‘Limitation Periods and Child Sexual Abuse Cases: Law, Psychology, Time and Justice’ (2003) 11 TLJ 218; and B Mathews, ‘Post-Ipp Special Limitation Periods for Cases of Injury to a Child by a Parent or Close Associate: New Jurisdictional Gulfs’ (2004) 12 TLJ 239.

[page 381]

Chapter 15 Judicial Remedies 1

Introduction

15.1 Reference has been made in earlier chapters to the remedies available in relation to the specific torts under consideration. This chapter seeks to consolidate some of that material and consider the judicial remedies available to a plaintiff in respect of injury suffered as a result of the tortious conduct of another. While the common law remedy of damages will be considered broadly, special reference will be made to the assessment of damages in personal injuries cases for negligence.

2

The Equitable Remedies

15.2 Unlike relief by way of damages at common law, equitable remedies are at the discretion of the court. The court may refuse to exercise its discretion for a number of reasons, including: another equally or more appropriate remedy is at hand (Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421); the issue is theoretical (Draper v British Optical Association [1938] 1 All ER 115); the plaintiff has no real connection with, or interest in, the matter (Anderson v Commonwealth (1932) 47 CLR 50);

traditional equitable principles such as the plaintiff’s unclean hands (Meyers v Casey (1913) 17 CLR 90); public interest weighs against the exercise of the discretion (Miller v Jackson [1977] 3 QB 966); it would be impossible for the defendant to obey a decree; or the damage is not substantial. The principal equitable remedies are: the declaratory judgment; account; and injunction. [page 382]

Declaration 15.3 A declaratory judgment is based on specific facts, declares the legal rights of parties and is a binding decision upon the parties: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399 at [48]. Such a judgment, however, does not contain any order. Initially, a common law court could not make a declaration respecting the rights of parties, although the courts of equity had the power to make a declaration of right where other consequential relief was involved. Under the Judicature Act system, introduced in the second half of the 19th century, the administration of the common law and equity courts was fused, and the right to make a declaration was extended to common law courts. 15.4 The jurisdiction to grant declaratory relief is almost unlimited, subject only to matters of discretion: Hanson v Radcliffe Urban District Council [1922] 2 Ch 490. The advantages of this remedy are that:

it is binding upon the parties and cannot be relitigated, that is, it is res judicata; it is a comparatively speedy remedy and, as such, usually cheaper than other remedies; it avoids protracted litigation; it enables negative relief to be given, that is, a declaration that someone is not in breach of a legal rule; and it can be given in circumstances where other relief might not be available. Some legislation specifically allows declaratory judgments: see, for example, Competition and Consumer Act 2010 (Cth) s 87(2)(a). 15.5 The principal disadvantage of this remedy is that it provides no consequential relief and will, therefore, not be a satisfactory remedy, standing alone, in cases where substantial damage has occurred because the injured party will require compensation for the damage. It is not appropriate for cases of negligence, but may be appropriate in some cases of disputed title to goods or land or in respect of nuisance. It is often given in place of nominal damages.

Account 15.6 The remedy of account requires that the financial advantage gained by the defendant is repaid to the plaintiff. The remedy was initially available at common law, but was limited and its procedure cumbersome and so the equity courts’ jurisdiction became more attractive: Sturton v Richardson (1844) 13 M & W 17; 153 ER 7. The remedy is particularly useful in commercial matters, such as industrial property cases, for example those involving passing off: see Chapter 24. Account of profit is not available in tort unless exemplary damages are available. See Hospitality Group Pty Ltd v

Australian Rugby Union Ltd (2001) 110 FCR 157 at 197, where Hill and Finkelstein JJ stated: … under presently accepted principles, an injured plaintiff cannot claim a windfall to prevent a wrongdoer profiting from his own wrong, except in those cases where exemplary damages are available and it is proper that illicit profits are taken into account in assessing the quantum of the award.1

[page 383]

Injunction 15.7 An injunction is a court order that either prohibits a party from committing an act (prohibitory injunction) or requires them to do a specified act (mandatory injunction). An injunction may be perpetual in the sense that it is granted permanently to compel the defendant to, or prohibit him or her from, some action. The remedy of injunction is more appropriate in cases of nuisance, trespass to land or chattels, occasionally defamation, and industrial property cases. 15.8 An injunction is a discretionary order and ‘would ordinarily only be ordered if damages were not ascertainable or otherwise not an adequate remedy’: Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 at [11]. The court may take a wide range of factors into account to determine whether it is appropriate to grant an injunction, for example the plaintiff’s conduct, any hardship the injunction may cause, and whether compliance is in fact possible.

Prohibitory injunction 15.9 Prior to the Judicature Acts, only a court of equity could issue a writ in the nature of a prohibition. A prohibitory injunction may be granted at the discretion of the court and it will order the party not to do, or to cease from doing the specified act. Where the tort has not yet been committed but is

threatened, a quia timet (‘because he fears’) injunction may be granted to restrain the threatened act: Attorney-General v Nottingham Corporation [1904] 1 Ch 673. In British Telecommunications plc v One in a Million Ltd [1998] 4 All ER 476, the court granted a quia timet injunction to restrain the defendants from their threat to pass off and infringe the plaintiffs’ registered trademarks by registration of internet domain names.

Mandatory injunction 15.10 A mandatory injunction may be granted to compel the defendant to perform some positive act. For example, in Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd (2007) 20 VR 311, a mandatory injunction was granted requiring the appellant to remove metal cladding from a building as it intruded onto the respondent’s property. This was despite the fact that the cost of removal was $30,000. The court held that the hardship was no disproportionate to the infringement of the plaintiff’s rights: see 4.68. In Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128, a mandatory injunction was refused as an order for construction of drain works to prevent the continuation of a nuisance would have involved obligations to and of third parties requiring supervision. However, an award of damages would allow the plaintiff to install a drainage system on his own land to rectify the nuisance.

Interlocutory injunction 15.11 An interlocutory injunction is temporary or provisional and is granted summarily, pending the hearing of the action. It will be granted only where the plaintiff can show probable entitlement to relief on the full hearing of the action. There is no known case of an injunction being granted to restrain the commission of the tort of negligence, and there are doubts expressed concerning the availability of an injunction in respect of trespass to person: see Fitzwilliam v Beckman [1978] Qd R 398 and 3.90.

[page 384]

3

Damages at Common Law

15.12 Most principles in the law of torts are premised upon the provision of pecuniary satisfaction for the wrong suffered by the plaintiff, that is, damages are the most realistic and substantial form of remedy so far as money can compensate for the wrong.

The Categories of Damages 15.13 There are different categories of damages, classified according to the objective of the award. The different categories are: nominal; contemptuous; exemplary (or punitive); aggravated; and compensatory.

Nominal damages 15.14 Nominal damages are awarded where a plaintiff has proved a violation of a legal right without any consequent actual damage. Therefore, it is limited to actions that are actionable per se. For example, nominal damages may be awarded for trespass where there is no actual damage: Law v Wright [1935] SASR 20; Hill v Cooke [1958] SR (NSW) 49. See, generally, The Mediana [1900] AC 113. 15.15 Nominal damages cannot be awarded where damage is the gist of the cause of action. In such actions (for example, negligence), the actual loss of the plaintiff must be compensated and, therefore, compensatory damages

are awarded. Sometimes the term ‘nominal damages’ is not used in its correct sense and instead is used to describe an award of damages for loss in a small amount. For example, in Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57; 229 ALR 457, the High Court referred an award of nominal damages for the damage to the respondent’s reputation. In that case, the court held that the publication of defamatory imputations that the respondent was a murder suspect would only attract an award of nominal damages, that is, not substantial, as the respondent was already a convicted murderer serving a life sentence. 15.16 Where the plaintiff suffers damage, but is unable to quantify the loss, it is not a case for nominal damages, and the court must attempt to arrive at a reasonable, substantial sum: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120. 15.17 An award will usually carry with it the costs of the action, which means the defendant will have to pay both the plaintiff’s legal costs as well as the costs of unsuccessfully defending the action. Also, awards of nominal damages have declined due to the preference of courts to make declarations.2 [page 385]

Contemptuous damages 15.18 Contemptuous damages are awarded to unmeritorious plaintiffs who are, nevertheless, entitled to succeed. Such an award expresses the court’s displeasure with the plaintiff’s conduct (as frivolous, vexatious or vindictive). As to the amount awarded, in Habib v Nationwide Pty Ltd (No 2) [2010] NSWCA 291 at [44], it was explained: The authorities which refer to such damages tend to refer to amounts of one shilling (Connelly v Sunday Times), a farthing (Martin v Benson [1927] 1 KB 771) or a halfpenny (Pamplin v Express

Newspapers Ltd (No 2) [1988] 1 All ER 282; [1988] 1 WLR 116). A comparable amount in Australia would be $1.

A plaintiff receiving contemptuous damages is unlikely to be awarded costs: Connolly v Sunday Times Publishing Co Ltd (1908) 7 CLR 263; 15 ALR 29.

Exemplary damages 15.19 Sometimes exemplary damages, also described as punitive or vindictive damages, are awarded in respect of the defendant’s conduct in cases where there has been some conscious wrongdoing, in what is usually described as ‘contumelious’ disregard of the plaintiff’s right (‘contumelious’ meaning stubborn and insulting): Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118. The function is partly punitive and partly deterrent: Uren v John Fairfax & Sons Pty Ltd; Australian Consolidated Press Ltd v Uren [1969] 1 AC 590; Egan v State Transport Authority (1982) 31 SASR 481. 15.20 The purposes and availability of exemplary damages are discussed comprehensively in Lamb v Cotogno (1987) 164 CLR 1; 74 ALR 188; see also Gray v Motor Accident Commission (1998) 196 CLR 1; 158 ALR 485. The assessment of exemplary damages is based on all of the facts, including the means of the defendant, any provocation by the plaintiff and whether any punishment has already been imposed on the defendant. Therefore, exemplary damages can be awarded against one or only some of several joint tortfeasors: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; 57 ALR 639. 15.21 Exemplary damages were rarely awarded in negligence cases, but see cases such as Andary v Burford (1994) Aust Torts Reports ¶81-302 (exemplary damages reduced on appeal due to ‘harridan’-like behaviour of the plaintiff). However, with the negligence reforms, some jurisdictions abolished the power of the courts to award exemplary damages in cases of personal injury,

with limited exceptions: Civil Liability Act 2002 (NSW) s 21 (no exemplary damages if negligent act or omission caused death or injury); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 19 (no exemplary damages in respect of personal injury); Civil Liability Act 2003 (Qld) s 52 (no exemplary damages unless it was an unlawful, intentional act with the intent to cause personal injury, or unlawful sexual assault or unlawful sexual misconduct). 15.22 Other legislation has restricted the awarding of exemplary damages, for example in industrial accidents (Workers Compensation Act 1987 (NSW) s 151R; Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 306B; Accident Compensation Act 1985 (Vic) ss 134AB(22)(c) and 134A(7)(c)); and motor vehicles accidents: Motor Accidents [page 386] Compensation Act 1999 (NSW) s 144; Motor Accident Insurance Act 1994 (Qld) s 55; Motor Vehicles Act 1959 (SA) s 113A; Transport Accident Act 1986 (Vic) s 93(7)(c). 15.23 There is no right to exemplary damages for defamation: Civil Law (Wrongs) Act 2002 (ACT) s 139H; Defamation Act 2005 (NSW) s 37; Defamation Act 2006 (NT) s 34; Defamation Act 2005 (Qld) s 37; Defamation Act 2005 (SA) s 35; Defamation Act 2005 (Tas) s 37; Defamation Act 2005 (Vic) s 37; Defamation Act 2005 (WA) s 37.

Aggravated damages 15.24 Aggravated damages are a form of compensatory damages which are awarded because the defendant’s reprehensible conduct aggravated the injury to the plaintiff’s dignity or feelings: see Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118. The claim must be based upon a cause of action that

protects an interest in dignity, for example defamation, which protects personal reputation (Hulton v Jones [1910] AC 20), or intentionally wrongful conduct, but not negligence: Kralj v McGrath [1986] 1 All ER 54. As with exemplary damages, aggravated damages cannot be awarded for personal injury in New South Wales, the Northern Territory and Queensland: see 15.21. The defamation legislation imposes restrictions on the award of aggravated damages: Civil Law (Wrongs) Act 2002 (ACT) s 139G; Defamation Act 2005 (NSW) s 36; Defamation Act 2006 (NT) s 33; Defamation Act 2005 (Qld) s 36; Defamation Act 2005 (SA) s 34; Defamation Act 2005 (Tas) s 36; Defamation Act 2005 (Vic) s 36; Defamation Act 2005 (WA) s 36.

Compensatory damages 15.25 Compensatory damages are awarded to compensate for actual damage and are at the heart of most tortious actions. In Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191, it was stated: The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed.

See also Todorovic v Waller (1981) 150 CLR 402 at 412; 37 ALR 481 at 486; Redding v Lee (1983) 151 CLR 117 at 133; 47 ALR 241 at 252; Johnson v Perez (1988) 166 CLR 351 at 355, 386; 82 ALR 587 at 611; Haines v Bendall (1991) 172 CLR 60 at 63; 99 ALR 385 at 386. 15.26 In negligence, compensation is the cardinal concept; it is the ‘one principle that is absolutely fundamental, and which must control all else’: Skelton v Collins (1966) 115 CLR 94 at 128 per Windeyer J. Linked with this concept is the rule, described by Lord Reid in Parry v Cleaver [1970] AC 1 at 13 as ‘universal’, that a plaintiff cannot recover more than he or she has lost: see also Haines v Bendall.

15.27

Compensatory damages may be subdivided further:

special damages — the loss suffered has some precise monetary value, assessed only up to the date of the verdict and must be capable of precise arithmetic calculation or estimation. Each item of special damage must be specially pleaded; and [page 387] general damages — assessed ‘at large’: Shearman v Folland [1950] 2 KB 43. By their very nature, general damages are incapable of mathematical calculation and may be assessed with reference to an indefinite period. 15.28 Awards of compensatory damages are to place the plaintiff in the position as if no tort had been committed, insofar as money is able. This is despite the very obvious difficulties in assessing future consequences and policy considerations. An example of where policy considerations in assessment of damages has arisen can be found in the cases concerning wrongful birth, that is, where children are born after failed sterilisation procedures. In Melchior v Cattanach (2001) 217 ALR 640, the plaintiff conceived after a failed sterilisation procedure and gave birth to a healthy child. There was no dispute that the plaintiff was entitled to damages for pain and suffering and loss of amenities due to the pregnancy, but the plaintiff also claimed economic loss for the cost of rearing the child. The Queensland Court of Appeal considered the argument that public policy should not allow damages to be awarded for the birth of a healthy child: at [49]. In awarding damages, it was reasoned that the damages were not to compensate for the birth of the child, but to compensate for the ‘additional financial burden that will be placed on the family through the [defendants’] negligence’: at [53]. The High

Court dismissed the appeal by a majority of 4:3. The majority held that to not allow damages to be awarded would be a departure from the ordinary principles of negligence and, therefore, would require strong public policy arguments: Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131. The decision of the High Court has since been overturned by legislation in some jurisdictions: see Civil Liability Act 2002 (NSW) Pt 11; Civil Liability Act 2003 (Qld) Ch 2 Pt 5.

4

Principles of Assessment of Compensatory Damages

15.29 In order to achieve the aim of compensatory damages, five fundamental principles apply to the assessment of compensatory damages at common law.

Egg-shell Skull Rule 15.30 In an action by a plaintiff to recover damages for physical injuries caused by an act or omission of the defendant, the defendant must take the plaintiff as they find them, with all the weaknesses, beliefs, capacities and attributes: Nader v Urban Transit Authority (1985) 2 NSWLR 501. Once some damage of the kind is reasonably foreseeable, the fact that the particular plaintiff suffered to a greater extent, for example because of a thin skull, is irrelevant, and the plaintiff is entitled to recover for the whole loss. This rule also applies to damaged property. In McColl v Dionisatos (2002) Aust Torts Reports ¶81-652, the parties owned properties that were joined at the rear. The plaintiff claimed that her rear wall was damaged due to the pressure of water and soil coming from the defendant’s property, thereby creating a nuisance. The defendant argued that the wall had been inadequately constructed. Young CJ held that the egg-shell skull rule applied

to both persons and property and, therefore, the fact that if the plaintiff’s wall had been [page 388] constructed properly only minor damage would have been suffered, was no answer to a claim for the loss of the whole wall. See also Cox v New South Wales (2007) 71 NSWLR 225 at [150], where Simpson J stated: The egg shell skull rule, as I understand it, makes a tortfeasor liable for injury caused by his or her tort, even where that injury is disproportionate (by reason of particular vulnerability in the plaintiff) to what might ordinarily be expected.

The Indemnity Principle 15.31 The primary purpose of an award of compensatory damages is to place the plaintiff in the position as if no tort had been committed. In calculating damages, the primary consideration is the pecuniary sum which will make good to the suffering party, so far as money can do so, the loss which that party has suffered at the hands of the tortfeasor: Admiralty Commissioners v SS Valeria [1922] AC 242. 15.32 The indemnity principle dictates that a plaintiff receives only net, rather than gross, sums and that advantages flowing to the plaintiff be brought to account as set-offs. For example, any future economic losses are discounted to acknowledge that the plaintiff is receiving future amounts as a lump sum payment and is therefore receiving a benefit they would otherwise not have received. After all, no one receives payment of all of their income for their working life before they have earnt it.

Once and for All Rule 15.33

It is an ancient principle that damages for a single cause of action

must be assessed at common law once and for all: Fitter v Veal (1701) 12 Mod 542; 88 ER 1506. Once a plaintiff’s damages have been assessed, they cannot claim further should their injury cause greater loss than the evidence suggested at the time of assessment and nor can the defendant seek recovery of the damages should the plaintiff’s condition improve. In Cartledge v E Jopling & Sons Ltd [1963] AC 758 at 780; [1963] 1 All ER 341 at 350, Lord Pearce explained: In 1701 in Fitter v Veal … the plaintiff, after recovering damages for an assault and battery, discovered that his injuries were more serious than had been supposed. He sought to bring a second action for the fresh damage. It was held, however, that he had but one cause of action which had been extinguished by the judgment in the former case. That principle has never since been doubted. It has been applied daily in countless actions for damages for personal injuries. In each case the judge assesses the damages once and for all, with the knowledge that the plaintiff can get no further damages for the possible traumatic consequences, such as arthritis or epilepsy, which may occur in the years to come.

There is an exception in the case of continuing torts: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120. 15.34 An appellate court has power to admit fresh evidence only in an exceptional case to reopen a previous award: Murphy v Stone-Wallwork (Charlton) Ltd [1969] 1 WLR 1023. If there has been different damage (for example, damage to property and personal injury), [page 389] separate causes of action will arise and the award of damages in one will not be a bar to recovery in respect of the other: Brunsden v Humphrey (1884) 14 QBD 141. 15.35 The once and for all rule can work substantial injustice through its inflexible attitude requiring a single temporal point for assessment. The damage may, in fact, be lesser or greater over a period of time. Much effort on

both sides goes into proving and contesting the nature, future impact and quantum of injury. It is an estimation only with the prospect of over- or under-compensation. In Mundy v Government Insurance Office (NSW) (NSWSC, Spender JA, 5 June 1995, unreported), a case requiring the assessment of damages for a three-and-a-half-year-old boy suffering severe spastic quadriplegia and intellectual deficit due to a motor accident, Spender JA commented (at 2): Looking to the past is one thing; this causes no great difficulties. Looking to the future is an entirely different proposition. This case is a striking example of the need to reform the archaic laws which require the Court to determine now and finally the money sums which are to be awarded as compensation for an assumed loss of earning capacity and to provide an adequate sum for future care.

Lump Sum Rule 15.36 Damages must be awarded as a lump sum and it is not permissible at common law, without statutory authorisation, to order the defendant to pay periodic sums such as an annuity until death: Fournier v Canadian National Railway Co [1927] AC 167; Todorovic v Waller (1981) 150 CLR 402 at 412; 37 ALR 481 at 486. As noted by the court in Todorovic v Waller, a court has no duty to ensure that a plaintiff utilises the award of damages in an appropriate manner.

Structured settlements 15.37 Negligence reforms have introduced the choice of having a structured settlement in place of a lump sum award in cases of personal injury. For example, s 8 of the Civil Liability Act 2002 (Tas) provides that, upon the application of the parties to a claim for damages for personal injury or death, a court may make an order approving a structured settlement. See also Civil Liability Act 2002 (NSW) Pt 2 Div 7; Personal Injuries (Liabilities and Damages) Act 2003 (NT) Pt 4 Div 6; Personal Injuries (Civil Claims) Act

2003 (NT) s 12; Civil Liability Act 2003 (Qld) Ch 3 Pt 4; Wrongs Act 1958 (Vic) Pt VC; Civil Liability Act 2002 (WA) Pt 2 Div 4. ‘Structured settlement’ is defined in the section as an agreement that provides for the payment of the award of damages in periodic payments. The other jurisdictions have similar provisions: Civil Law (Wrongs) Act 2002 (ACT) s 45; Civil Liability Act 2002 (NSW) s 24; Personal Injuries (Liability and Damages) Act 2003 (NT) s 32; Civil Liability Act 2003 (Qld) s 65; Supreme Court Act 1935 (SA) s 30BA; Wrongs Act 1958 (Vic) s 28N. Other compensation schemes allowing periodic payments are the motor vehicle compensation Acts (Motor Accidents Compensation Act 1999 (NSW) s 81) and workers compensation schemes: Workers Compensation Act 1987 (NSW) s 151Q; Workers’ Compensation and Rehabilitation Act 2003 (Qld) Ch 5, Pt 9, Div 4. In South [page 390] Australia, final assessment of damages in all actions can be postponed to permit assessment of a continuing disability and periodic payment ordered in the interim: Supreme Court Act 1935 (SA) s 30BA; and see Walker v Tugend (1981) 28 SASR 194. See also Civil Liability Act 2002 (NSW) s 82 and Zraika (by his tutor Zraika) v Walsh (No 2) (2014) 66 MVR 588. 15.38 Structured settlements mean that the plaintiff need not manage the lump sum of compensation (management fees usually being recoverable in limited circumstances, see 15.131) and a more secure source of income is available to the plaintiff for a longer term. The Federal Government enacted the Taxation Laws Amendment (Structured Settlements and Structured Orders) Act 2002 (Cth), introducing tax advantages for structured settlements to encourage parties to choose this option.

Duty to Mitigate 15.39 A plaintiff has an obligation to mitigate damage and may be denied compensation for a failure to fulfil this obligation, at least to the extent of damages which exceed the point where mitigation would have prevented further harm. The test is an objective one: what steps a reasonable plaintiff would take to minimise their loss: British Westinghouse Electric & Mfg Co Ltd v Underground Electric Railways Co of London Ltd [1912] AC 673. The burden is upon the defendant to show that a plaintiff has failed to mitigate: Munce v Vinidex [1974] 2 NSWLR 235; Dininis v Kaehne [1982] 29 SASR 118; Lorca v Holts Corrosion Control Pty Ltd [1981] Qd R 261. 15.40 In Boyd v State Government Insurance Office (Qld) [1978] Qd R 195, a blood transfusion was refused by a youth out of respect for his parents’ belief that it was contrary to God’s law. This was held to be an unreasonable refusal to mitigate: see also Walker-Flynn v Princeton Motors Pty Ltd [1960] SR (NSW) 488. A plaintiff is allowed reasonable time to consider the position and weigh the risks of action in mitigation: Hisgrove v Hoffman (1981) 29 SASR 1. Although the test is objective, factors personal to the plaintiff, when considering reasonableness, are relevant: Fazlic v Milingimbi Community Inc (1982) 150 CLR 345; 38 ALR 424. 15.41 Policy considerations come into play when considering whether action was required for mitigation. For example, in CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47, the New South Wales Court of Appeal considered whether, in an action for damages for wrongful birth (in this case, the birth of a child after pregnancy was diagnosed when it was too late to obtain an abortion), a parent who did not abort (if it was safe to do so) or give up the child for adoption failed to mitigate their loss when claiming for the economic costs of raising the child. Meagher J (in dissent, holding that no damages could be awarded for the cost of rearing a child) stated (at 87): The law ordains that a plaintiff must mitigate her damages. In the present context, why does that

not require the mother to put the child of which she vociferously complains out to adoption? Why should the law treat seriously her claim for the recovery of expenses which she does not need to incur?

[page 391] In Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131, where the High Court held that damages were recoverable for the cost of rearing a child after a failed sterilisation procedure, the issue of mitigation was not argued. See also McFarlane v Tayside Health Board [2000] 2 AC 59; [1999] 4 All ER 961. 15.42 Any additional loss or expense incurred by the plaintiff in attempting to minimise the damage by reasonable means in mitigation may be recovered by that party as part of the compensation for the tortious act: The Oropesa [1943] P 32. In Simonius Vischer & Co v Holt & Thompson [1979] 2 NSWLR 322 at 356, Samuels JA stated: … the principle is that stated in McGregor on Damages, 13th ed, p 167, par 237, namely that recovery is allowed “for losses and expenses reasonably incurred in mitigation even although the resulting damage is in the event greater than it would have been had the mitigating steps not been taken”. … [I]n Lloyds and Scottish Finance Ltd v Modern Cars & Caravans (Kingston) Ltd [[1966] 1 QB 764 at 782] … his Lordship said: “… it is well established that a plaintiff may recover expenses incurred in an effort to mitigate the damage resulting from a defendant’s wrongdoing”. … It would seem to follow that, once the plaintiffs’ conduct is found to have been reasonable, the defendants are bound to make good the loss thereby sustained. [footnotes omitted]

15.43 Where a party unreasonably refuses to mitigate, the defendant will be liable only for so much damage as would have resulted had mitigation taken place and not for any additional damage flowing from the time of failure to mitigate. 15.44 In Queensland, in respect of claims for personal injury, s 53 of the Civil Liability Act 2003 allows a defendant to give written notice to a plaintiff suggesting specific action that a plaintiff should take to mitigate their

damages. If the court finds that the plaintiff has failed to mitigate by not following the defendant’s suggestions that were reasonable, the plaintiff’s damages are reduced.

5

Property Damage

15.45 The assessment of damages to compensate for property damage is relatively simpler than that for personal injury, since the estimation of the loss is ordinarily more certain. Restitution for the loss of value of property usually represents the difference in the value of the property before and after the interference. Normally, this will amount to: the cost of repair in the case of partial destruction (Murphy v Brown (1985) 1 NSWLR 131; Pargiter v Alexander (1995) 5 Tas R 158); or the diminution in value in the case of partial destruction (Davidson v J S Gilbert Fabrications Pty Ltd [1986] 1 Qd R 1); or total replacement costs in the case of total deprivation or destruction: Wheeler v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113. Loss that the plaintiff suffers as a consequence of the damage to the property may also be compensated. [page 392]

Cost of Repair and Diminished Value 15.46 Depending upon the circumstances, a court may award compensatory damages for a tort affecting land in the form of either an amount representing the reduced value of the property or the cost of reinstatement. If the plaintiff seeks the greater amount as compensation, the court must be convinced that it is the appropriate measure and reasonable in

the circumstances: Hansen v Gloucester Developments Pty Ltd [1992] 1 Qd R 14; Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36 at 39; Jones v Shire of Perth [1970] WAR 56; Pargiter v Alexander (1995) Aust Torts Reports ¶81-349. In Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 at [182], it was stated: Courts will start with what the plaintiff has asked for, and then consider whether that measure of damages is fair and reasonable in light of the injury suffered, the difference between the diminution in value on the one hand and reinstatement costs on the other, and any special value in the land.

15.47 If the plaintiff has received a benefit from the damage to their property, for example a derelict building destroyed that was marked for demolition, the court may take that fact into account. In Gagner Pty Ltd t/as Indochine Café v Canturi Corporation Pty Ltd (2009) 262 ALR 691, the respondent’s business premises were damaged by flooding caused by the appellant. The flooding affected approximately 10 per cent of the respondent’s floor area, but the respondent took the opportunity to close the business for 29 days and completely refurbish the business at a substantial cost. The trial judge awarded damages to reflect the cost of rectifying the premises to the condition as close as possible before the flood and the loss of profits for 10 days. On appeal it was argued that the appellant had not suffered any loss because of the complete refurbishment, and the award of damages was in the circumstances a claim for betterment. Campbell JA discussed cases that measured damage for tortious damage to property and concluded (at [105]–[106]): What counts as making good the damage, for the purpose of assessing damages for torts, needs to be understood bearing in mind what the purpose is for which one is asking what counts as “making good”. That purpose is ascertaining what the work is that is necessary to undo the consequences of the tort having been committed. The only interest of the defendant that bears upon the question of whether rectification work is reasonable is a financial one, sometimes expressed in the principle that a plaintiff must mitigate his damage. … The cost of making good is merely one way of putting a dollar figure on the damage that the plaintiff has suffered, for the purpose of carrying through the compensatory principle. There are circumstances, of which the present is one, when the fact that money has not been spent on the

precise items that would need to be acquired to restore property to its pre-damage condition does not prevent the cost of acquiring those items being the appropriate way of giving effect to the compensatory principle. Similarly, in circumstances where profits have been lost as a result of the shop being closed during the time it took to undertake the (loose sense) rectification that was carried out, and a lesser time would have involved in effecting a (precise sense) rectification, the appropriate quantum for loss of profits is the profits that would have been lost during the lesser of those times.

[page 393] The court held that the fact that the respondent had taken the opportunity to refurbish the premises did not mean that the premises had not been damaged due to the negligence of the appellant — the flooding was one of the causes of the refurbishment. Campbell JA stated (at [111]): To the extent to which there were contributing causes besides the water damage, it was the judge’s task to assess the compensation that would make good those consequences properly attributable to the flooding. This she did by allowing the amount that a precise rectification of the water damage alone would have cost, and leaving the respondent to bear any amount it had spent in excess of that.

Further, there was no need to take into account any benefits gained by the respondent through the refurbishment, as in Hoad v Scone Motors Pty Ltd [1977] 1 NSWLR 88 (refurbishment added value to business about to close and be sold), as there was no evidence that the business profits had increased or that the shop was ‘in any other way more valuable than it would have been if the damage had never occurred’: at [127].

Replacement Costs 15.48 If the property has been destroyed or the plaintiff has been permanently deprived of possession, then the damages will be assessed as the cost of replacement, that is, the market value of the property. The underlying indemnity principle requires evidence of any intended use of the property by the plaintiff and any consequential betterment to the plaintiff may be set off:

Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelsmen Agency Pty Ltd (2002) 18 BCL 122; [2001] NSWCA 313.

Consequential Losses 15.49 If the property is profit-making, the plaintiff is entitled to the consequential loss of profits or cost of hiring a substitute: Liesbosch, Dredger v Edison SS (Owners) [1933] AC 449; The Argentine (1889) 14 App Cas 519; Newmans Coach Lines Ltd v Robertshawe [1984] 1 NZLR 53; Mitsui OSK Lines Ltd v The Ship ‘Mineral Transporter’ [1983] 2 NSWLR 564; Glenmont Investments Pty Ltd v O’Loughlin (2000) 79 SASR 185; Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 at [145]. If a consequence of the damage to the property is the loss of the chance of a commercial opportunity, damages may be awarded if the chance was substantial and not speculative. 15.50 The loss of the use of funds and the need to borrow to pay debts may also be compensable: Boden v Roy Gordon & Gordon [1985] 1 Qd R 482. It is possible to compensate for loss of use of non-profit earning chattel or land: Millar v Candy (1981) 38 ALR 299. 15.51 In Hungerfords v Walker (1989) 171 CLR 125; 84 ALR 119, the High Court of Australia swept away a longstanding rule when it held by majority that a court, when awarding damages at common law for negligence (or breach of contract), can include a sum for opportunity cost in the form of an award for damages by way of interest for the loss of the use of money which the plaintiff paid, or lost the use of, as a direct result of [page 394] the defendant’s negligence or breach of contract. In the words of Mason CJ

and Wilson J (at CLR 143; ALR 128): If a justification exists for the difference in treatment, it must have its genesis in a policy that encourages recovery of expense actually incurred and discourages or denies recovery of opportunity cost. Yet it is not easy to see any cogent reason for the adoption of such a policy; the award of compensation for opportunity cost would not expose the courts to insuperable problems in fact-finding.

Indeed, such a policy would be at odds with the fundamental principle that a plaintiff is entitled to restitutio in integrum. According to that principle, the plaintiff is entitled to full compensation for the loss he or she sustained in consequence of the defendant’s wrong, subject to the rules as to remoteness of damage and to the plaintiff’s duty to mitigate. In principle, the plaintiff should be awarded the compensation which would restore him or her to the position he or she would have been it but for the defendant’s breach of contract or negligence. In Broken Hill City Council v Tiziani (1997) 93 LGERA 113, for example, the plaintiffs were awarded a sum to compensate for the emotional distress they suffered due to the flooding of their home which was caused by the manner in which the defendant designed and constructed a road. 15.52 Judged from a commercial viewpoint, the plaintiff sustains an economic loss if his or her damages are not paid promptly, just as a loss is sustained when a debt is not paid on the due date. The loss may arise in the form of the investment cost of being deprived of money which could have been invested at interest or used to reduce an existing indebtedness. The loss may also arise in the form of the borrowing cost, that is, interest payable on borrowed money or interest forgone because an existing investment is realised or reduced: Commonwealth v Chessell (1991) 101 ALR 182.

6 15.53

Damages for Personal Injuries

An injured plaintiff is entitled to be compensated for all losses,

economic and non-economic, that are a consequence of the defendant’s wrongdoing. However, this is not always an easy task, and as pointed out in Wei Fan v South Eastern Sydney Local Health District (No 2) [2015] NSWSC 1235 at [308]: Damages are awarded as compensation for the damage suffered. It is accepted, and clearly understood, that it is impossible to use money to restore to a condition of physical wholeness a person who has suffered great personal injury. Therefore, all the law can do is to restore the person who has suffered so far as money can do.

Although the principles governing assessment of common law damages apply to personal injury cases, there has been much statutory modification. The year 2001 saw the beginnings of increases in public liability insurance premiums said to be partly in response to the large awards of damages for personal injuries. To address the problem of unaffordable insurance, the Australian governments implemented legislation, modelled on recommendations of [page 395] the Ipp Report,3 which placed substantial restrictions on the common law principles of assessment of damages. The relevant legislation for each state and territory will be referred to under the specific head of damage. 15.54 In CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1 at [28]–[31], the High Court summarised the full spectrum of losses an injured plaintiff may claim: A plaintiff who has suffered negligently caused personal injury is traditionally seen as able to recover three types of loss. The first covers non-pecuniary losses such as pain and suffering, disfigurement, loss of limbs or organs, loss of the senses — sight, taste, hearing, smell and touch; and loss of the capacity to engage in hobbies, sport, work, marriage and child-bearing. Damages can be recovered in relation to these losses even if no actual financial loss is caused and even if the damage caused by them cannot be measured in money.

The second type of loss is loss of earning capacity both before the trial and after it. Although the damages recoverable in relation to reduced future income are damages for loss of earning capacity, not damages for loss of earnings simpliciter, those damages are awardable only to the extent that the loss has been or may be productive of financial loss [Graham v Baker (1961) 106 CLR 340 at 347 per Dixon CJ, Kitto and Taylor JJ; Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 5, 18 per Deane, Dawson, Toohey and Gaudron JJ and McHugh J respectively]. Hence ‘the valuation of the loss of earning capacity involves the consideration of what moneys could have been produced by the exercise of the [plaintiff’s] former earning capacity’ [Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 658 per Barwick CJ]. The third type of recoverable loss is actual financial loss, for example, ambulance charges; charges for medical, hospital and professional nursing services; travel and accommodation expenses incurred in obtaining those services; the costs of rehabilitation needs, special clothing and special equipment; the costs of modifying houses; the costs of funds management; and the costs of professionally supplied home maintenance services. It is not necessary for the costs actually to have been incurred by the time of the trial, but it is necessary that they will be incurred.

To summarise, an injured plaintiff may be able to claim for: past and future hospital and medical expenses; gratuitous services; past and future loss of earning capacity; and past and future non-pecuniary losses. These components of a plaintiff’s claim are referred to as the heads of damages. [page 396]

Compensatory Damages 15.55 The compensatory damages awarded for personal injury may be divided into two categories — special damages and general damages: see 15.27. The classification is illustrated by the diagram below:

Special damages 15.56 Special damages are awarded in respect of actual losses incurred, from the date of the incident up to the date of verdict, which are capable of precise calculation or estimation: Paff v Speed (1961) 105 CLR 549. Such losses are pecuniary as they may be translated into monetary terms: McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] ALR 771. Special damages may be claimed for the following pecuniary losses: past hospital and medical expenses; past loss of earning capacity; and other monetary claims arising from the injury up until judgment or settlement. 15.57 The items claimed as special damages must be considered reasonable as required by the plaintiff’s duty to mitigate their loss. Usually the

special damages can be proven, for example by invoices, and are agreed upon between the parties. [page 397]

General damages 15.58 General damages are not capable of precise arithmetical calculation or estimation, and the standard tests in placing a monetary value on such damages are less certain than those used in calculating special damages: Paff v Speed (1961) 105 CLR 549. The heads of damage classified as general damages may include a consideration of future (that is, after the judgment) as well as past and present impairment, and may involve pecuniary and non-pecuniary items. 15.59

The pecuniary general damages compensate a plaintiff for:

future hospital and medical expenses; gratuitous services; and any future loss of earning capacity. 15.60 The non-pecuniary general damages (sometimes referred to as the ‘non-economic loss’) are assessed according to the civil liability legislation and compensate a plaintiff for: pain and suffering; loss of amenities (enjoyment of life); loss of expectation of life; and disfigurement.

Hospital and Medical Expenses 15.61

A plaintiff may claim the reasonable and necessary expenses arising

from hospital and medical treatments due to their injuries: Sharman v Evans (1977) 138 CLR 563; 13 ALR 57. This head of damage may include such items as pharmaceutical expenses, fertility program costs, cost of future medical aids and equipment, and future hospital costs, for example future operations or therapies. In respect of past hospital and medical expenses, a plaintiff need not actually have disbursed the fees, provided they are due and payable: Blundell v Musgrave (1956) 96 CLR 73. Nor is it necessary that the plaintiff be under any legal liability to reimburse some other party who has paid such expenses: Donnelly v Joyce [1974] QB 454; Renner v Orchard [1967] QWN 3. An act of benevolence by a third party cannot be relied upon by a defendant to reduce the damages payable to the plaintiff: Kars v Kars (1996) 187 CLR 354; 141 ALR 37.

Assessment period 15.62 Past The expenses that arise between the date of injury and the date of judgment are special damages and are usually agreed upon by the parties as they are evidenced by invoices. 15.63 Future The assessment period for future hospital and medical expenses (pecuniary general damages) is from the date of judgment until the date of expected recovery or until the date of the plaintiff’s expected death if they are permanently injured: Sharman v Evans (1977) 138 CLR 563; 13 ALR 57. [page 398]

Reasonable and necessary 15.64 To be entitled to compensation for hospital and medical expenses, the expenses must be reasonable and necessary due to the plaintiff’s injuries:

Sharman v Evans (1977) 138 CLR 563; 13 ALR 57. See, for example, Laut & Loughlin v White Feather Main Reefs (1905) 7 WALR 203, where the cost of an operation required because medical advice was not followed was not allowed. 15.65 The cost of the treatment itself must also be reasonable. For example, in Kostik v Giannakopoulos (1989) Aust Torts Reports ¶80-274 on appeal, the cost claimed for physiotherapy was challenged as the charges were over $2000 more than the fees recommended by the Australian Physiotherapists Association. King CJ stated (at 6): A plaintiff is entitled to recover only the reasonable cost of the treatment which he requires. A reasonable amount of latitude may properly be allowed in choosing professional advisers and providers of treatment and the cost of treatment need not be regarded as unreasonable simply because the treatment might have been obtained more cheaply elsewhere, Wyld v Bertram [1970] SASR 1. A plaintiff cannot recover, however, exorbitant charges made by those from whom he has obtained treatment. The onus is on the plaintiff to establish the reasonableness of the charges which he seeks to recover. In the generality of cases, of course, where no issue is taken with the reasonableness of the charges claimed, no evidence on this point is necessary. Where the reasonableness of the charges is challenged, it is necessary for the plaintiff to establish their reasonableness by evidence.

In Lipovac v Hamilton Holdings Pty Ltd (1997) 136 FLR 400, the cost of a visit to Lourdes was held not to be reasonably necessary for the plaintiff’s condition. See also Neal v CSR Ltd (1990) Aust Torts Reports ¶81-052 and Perry v Australian Rail Track Corporation Ltd (2013) 64 MVR 121. Fees paid to doctors to examine with a view to giving evidence in litigation, but not for treating the plaintiff, may not be reasonable: Laut & Loughlin v White Feather Main Reefs (1905) 7 WALR 203. Occasionally, authorities suggest that a plaintiff should use free facilities, if available, in order to mitigate the loss: Taccone v Electric Power Transmission Pty Ltd [1962] Qd R 545. 15.66 In cases of serious injury, a court must determine the appropriateness of institutional versus home health care and award damages on the appropriate basis: Sharman v Evans (1977) 138 CLR 563; 13 ALR 57,

but compare Government Insurance Office (NSW) v Mackie (1990) Aust Torts Reports ¶81-053; Burford v Allen (1993) 60 SASR 428. The cost of home care is considerably higher in comparison to institutional care. Therefore, as the plaintiff has a duty to mitigate their damage, to recover the cost of the more expensive home care, the plaintiff must prove that, due to their condition, it is reasonably necessary that they be nursed at home: Sharman v Evans (1977) 138 CLR 563; 13 ALR 57. For example, in Rosecrance v Rosecrance (1995) 105 NTR 1, the plaintiff suffered severe injuries in a motor vehicle accident. The plaintiff claimed for the cost of at-home nursing care but the defendant argued that the plaintiff’s future care should be calculated on the basis of being in a skilled nursing facility. The court noted that there was a substantial difference between the cost of at-home and institutional care, but observed that there was a trend in medical opinion and [page 399] community attitudes to treat institutional care as a last resort: at 25. The court held that the evidence favoured the conclusion that the plaintiff’s health would benefit from being at home rather than in an institution. 15.67 Evidence of the plaintiff’s future medical needs is important to allow the court to assess the probability of specific events occurring. For example, the possibility of future operations or treatment can be compensated even though it may not be definite that the plaintiff will require the operation or treatment. In assessing such future events, the court must ‘assess the degree of probability that an event would occur’: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 639. In Malec v JC Hutton Pty Ltd, Deane, Gaudron and McHugh JJ stated (at 643): … in the case of an event which it is alleged would or would not have occurred, or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to

take account of future or hypothetical events in assessing damages, it can only do it in terms of the degree of probability of those events occurring. … unless the chance is so low as to be regarded as speculative — say less than 1 per cent — or as high as to be practically certain — say over 99 per cent — the court will take that chance into account when assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction that has a 51 per cent probability of occurring, but to ignore altogether a prediction that has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability.

Loss of Earning Capacity 15.68 If a plaintiff’s earning capacity is affected by their injuries and this leads to financial loss, this will be compensated: Graham v Baker (1961) 106 CLR 340. In Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 16, the difference between earning capacity and loss of earnings was explained: In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. That is because ‘an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss’ [Graham v Baker (1961) 106 CLR 340 at 347]. Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff’s ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff’s pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff’s capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred.

[page 400] See also O’Brien v McKean (1968) 118 CLR 540; Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129.

15.69 When assessing a plaintiff’s loss of earning capacity, the court considers the plaintiff’s earning capacity before injury and evaluates the plaintiff’s residual earning capacity and the possibility of them being able to exploit that capacity for financial gain. Evidence of past earnings, for example through income tax records, is relevant, especially if the plaintiff was continually employed before being injured: see Paff v Speed (1961) 105 CLR 549 at 566; New South Wales v Moss (2000) 54 NSWLR 536 at [71]. 15.70 However, in some cases such evidence does not give a realistic indication of the plaintiff’s true position. For example, in Husher v Husher (1999) 197 CLR 138; 165 ALR 384, the husband and wife were in a partnership that could be terminated at will. The income earned by the husband was paid equally to him and his wife through the partnership for tax advantages. The husband was injured and argued that his loss of earning capacity should be assessed on the whole of the income, not just the 50 per cent he actually received. The High Court held that the evidence was that the husband had control over the capacity to earn and as the partnership was at will, effectively the husband controlled the whole of the income. Therefore, all of the partnership income was to be assessed as the lost income. See also Smith v Zhong (2015) 73 MVR 64. 15.71 If a plaintiff provides evidence that, had they not been injured, their earnings in the future would have increased, for example through promotion, this may be taken into account by the court on proof of the probability: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. An example of a court taking into account future earnings that were substantially higher than what the plaintiff was earning at the time of being injured is Norris v Blake (No 2) (1997) 41 NSWLR 49. The plaintiff was seriously injured when working on the set of a movie and would never be able to work again. He had starred in Australian television series and the evidence was that he was going to have a successful acting career overseas as well. The court heard evidence of the incomes of other Australian actors according to

their success and awarded the plaintiff $7,733,713 for loss of future economic capacity, based upon the premise that the plaintiff was an actor with a bright and lucrative career in front of him at the time of the accident. 15.72 Not every plaintiff has a record of continual employment, for example the plaintiff may be unemployed at the time of injury or their record of employment may be erratic or varied. See, for example, Aircraft Technicians of Australia Pty Ltd v St Clair [2011] QCA 188 (plaintiff before his serious injury was a master butcher, worker on an oil rig, owner of a helicopter and ground mustering business, and after being injured attempted ostrich farming before moving to the United States and becoming a successful sculptor). 15.73 In the case of a permanently injured child, the assessment of loss of earning capacity is more an ‘estimation of possibilities, rather than proof of probabilities’: New South Wales v Moss (2000) 54 NSWLR 536 at [71]. In that case, Hayden JA stated at [84]: Strictly speaking it would be impossible to prove that the child would have had an earning capacity as an adult or would have exploited it. But it is conventional to rely on the occupations,

[page 401] attitudes to life and work, histories of parents and other relatives: Kalo v Bristol Omnibus Co Ltd (1975) 1 WLR 1054; Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321; Bullock v Miller (1987) Aust Torts Reports 80-128; Burford v Allan (1992) 60 SASR 428.

See Simpson (by her tutor Simpson) v Diamond [2001] NSWSC 925 (plaintiff injured at birth, court held that evidence did not support the claim that the plaintiff would have undertaken tertiary studies and pursued a career in law). 15.74 The civil liability legislation in New South Wales and Queensland provides for assessment of loss of earning capacity when that loss cannot be

calculated precisely by reference to a weekly loss. In such circumstances, a court may only award damages if satisfied that the loss has been suffered, or will be suffered, by the plaintiff and it must state the assumptions upon which the award is based: see Civil Liability Act 2002 (NSW) s 13; Civil Liability Act 2003 (Qld) s 55. 15.75 A person capable of earning, who chooses to remain unemployed or underemployed, may be prevented from recovering substantial damages: Thomas v Iselin [1972] QWN 15. See Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 302 (past loss of earnings was due to plaintiff seeking work that was ‘unavailable and unreasonably imposed a limitation on the types of employment she would undertake’ and not due to any impairment to her capacity to work). 15.76 Following Medlin v State Government Insurance Commission (1995) 127 ALR 180, damages for loss of earning capacity may extend to those associated with early retirement if early retirement was not unreasonable and the reason for it was the result of injuries caused by the defendant, because the financial loss would then be causally related to the defendant’s negligence. See also Zurich Australia Insurance Ltd v Rourmanos (2013) 65 MVR 561 (respondent’s injuries were the cause of him ceasing business).

Assessment period 15.77 Past Past loss of earning capacity is classified as special damages and the period of assessment is from the date of injury to the date of judgment. 15.78 Future Future loss of earning capacity (pecuniary general damages) is assessed from the date of judgment to the pre-accident expected date of retirement, if there is permanent impairment, or the date when the plaintiff will be able to exploit their full capacity to work again. Therefore, the court must take into account the likely duration of the plaintiff’s disability and the

probable duration of the plaintiff’s remaining working life, in terms of preand post-accident. 15.79 This period of assessment may be reduced or extended upon the evidence of the particular plaintiff. For example, the plaintiff may have a preexisting medical condition that meant they would not have been able to work until retirement age, or they may have intended to work beyond the age of retirement: Ascic v Westel Co-operative Ltd (1992) Aust Torts Reports ¶81159. 15.80 If, due to the defendant’s negligence, the plaintiff’s life expectancy is shortened to such an extent that the medical evidence is that the plaintiff is likely to die at an age when they would have still been earning, this is taken into account by the court. Damages are still awarded for this period, referred to as the ‘lost years’ component (post-accident age of [page 402] death to pre-accident date of retirement), but are discounted heavily. The loss of earning capacity for the period of the ‘lost years’ has the probable living expenses of the plaintiff deducted: Skelton v Collins (1966) 115 CLR 94 at 121; Sharman v Evans (1977) 138 CLR 563 at 577; 13 ALR 57 at 71.

Legislative restrictions 15.81 All Australian jurisdictions have imposed restrictions upon the awards for loss of earning capacity. Except for South Australia and Tasmania, all have capped the damages for loss of future earning capacity at three times the average weekly earnings: Civil Law (Wrongs) Act 2002 (ACT) s 98; Civil Liability Act 2002 (NSW) s 12; Personal Injuries (Liability and Damages) Act 2003 (NT) s 20; Civil Liability Act 2003 (Qld) s 54; Civil Liability Act 2002 (Tas) s 26; Wrongs Act 1958 (Vic) s 28F; Civil Liability Act 2003 (WA) s 11.

In South Australia, damages for loss of earning capacity may not exceed the prescribed maximum, dependent upon the date of the accident: Civil Liability Act 1935 (SA) ss 3 and 54. Statistics establish that only 1.4 per cent of employees earn above three times the average weekly earnings.4 Therefore, such limitations will rarely affect an injured plaintiff. The caps set on the future loss of earning capacity are designed to encourage high-income earners to insure against such loss. 15.82 Some of the legislation also restricts the amount of damages that may be awarded for the loss of employer superannuation contributions: Civil Liability Act 2002 (NSW) s 15C; Civil Liability Act 2003 (Qld) s 56; Civil Liability Act 1935 (SA) s 56A (motor vehicle accidents); Civil Liability Act 2002 (Tas) s 25.

Indemnity principle 15.83 Overlap The heads of damage in claims for personal injury overlap and impinge upon one another, and there is a risk of duplication if the separate amounts are added up in a mathematical way, like a balance sheet: Teubner v Humble (1962) 108 CLR 491 at 505 per Windeyer J; Bresatz v Przibilla (1962) 108 CLR 541 at 543. They are not always so distinct that separate sums can be put on them: Thatcher v Charles (1961) 104 CLR 57 at 75. 15.84 The loss of earning capacity head of damage may overlap with hospital and medical damages. The indemnity principle requires that such overlaps be taken into account. For example, the fact that the plaintiff is hospitalised and receives food and board in the hospital results in a saving of the money that would otherwise have been spent on sustenance: Skelton v Collins (1966) 115 CLR 94 at 106; Sharman v Evans (1977) 138 CLR 563 at 576; 13 ALR 57 at 68. If the plaintiff receives compensation for the cost of the hospital stay and also for loss of earnings during that period, they are being over-compensated.

15.85 Loss of earnings is calculated net of tax The amount awarded for lost earning capacity is calculated as a net amount, that is, income tax that would have been paid on the [page 403] gross amount is deducted: British Transport Commission v Gourley [1956] AC 185; Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1. This includes a deduction for the Medicare levy as it is regarded as a tax. Queensland and Victoria have legislated that notional income tax is taken into account: Civil Proceedings Act 2011 (Qld) s 60; Wrongs Act 1958 (Vic) s 28A. As for the other jurisdictions, the High Court decision of Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1 is followed, requiring that a deduction representing income tax must be made. 15.86 Allowance for contingencies or vicissitudes It is normal throughout the earning life of a person that there are periods in which they will not be earning a wage, for example industrial disputes or illness. To take into account such non-earning contingencies in a general way, a court deducts a percentage or some amount from the figure arrived at for loss of future earning capacity. The allowance for contingencies is based on fact and in Villasevil v Pickering (2001) 24 WAR 167 at [38] it was noted, ‘[t]he discount for ordinary contingencies is rarely more than 15 per cent and usually between 5 and 10 per cent’. See also Gessey v Morrison (1995) 23 MVR 103, where the New South Wales Court of Appeal held that a reduction of 5 per cent was unusually low but not beyond the range of proper discretionary judgments. 15.87 The High Court in Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485 at 497; 133 ALR 154 at 161 (per Dawson,

Toohey, Gaudron and Gummow JJ) made the following pronouncements on contingencies or ‘vicissitudes’: It is necessary to say something as to contingencies or “vicissitudes”. Calculation of future economic loss must take account of the various possibilities which might otherwise have affected earning capacity. The principle and the relevant considerations were identified by Barwick CJ in Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 659 as follows: Ill health, unemployment, road or rail accidents, wars, changes in industrial emphasis, so that industries move their location, or are superseded by new and different techniques, the onset and effect of automation and the mere daily vicissitudes of life are not adequately reflected by merely — and blindly — taking some percentage reduction of a sum which ignores them.

15.88 In Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485; 133 ALR 154, the Australian High Court had to consider the appropriate treatment of a deduction from lost earnings in the future of a sum to cover the cost of care for any future children and household help expenses. The appellant was 30 years old when injured and was working in a senior managerial position, which she subsequently had to abandon. In a joint judgment of Dawson, Toohey, Gaudron and Gummow JJ (at CLR 495; ALR 152), the following approach was adopted: There is simply no basis for treating domestic help as necessary for the realisation of earning capacity and, to the extent that the Court of Appeal thought otherwise, it was clearly wrong. What a person does or does not do outside working hours may depend on whether he or she has domestic help, but domestic help has no relevant connection with the earning of income. There are, however, circumstances in which the cost of caring for very young children may properly be seen as an “essential prerequisite” to the earning of income and, in this sense, as an outgoing “necessary for the realisation of [earning] capacity”. However, outgoings which are deducted

[page 404] for the purpose of calculating economic loss are those which are necessarily incurred in or in connection with the employment or undertaking by which earning capacity is realised, not those which are incurred, even as a “necessary prerequisite”, merely to provide an opportunity to realise that capacity. In a sense, child care can be regarded as an opportunity cost. But even that mistakes its true nature.

Child care is a cost that may be incurred by men or women. It may be incurred whether or not the child’s mother is in the paid workforce. On the other hand, not all women in the paid workforce incur a cost for the care of their young children. For example, one or more family members may provide care on a voluntary basis. Moreover, if costs are incurred they will vary according to the type of care decided upon and decisions in that regard are likely to take account of various matters besides those directly associated with participation in the paid workforce. These considerations lead to the conclusion that the cost of child care is simply one of various costs associated with having children. And as such, the cost is properly characterised for the purpose of calculating economic loss, as it is for the purposes of taxation law, as essentially private or domestic in character. So characterized, it is no more to be deducted when calculating loss of earning capacity than are other items of expenditure for personal amenity. [footnotes omitted]

In applying these principles, the court concluded (at CLR 498; ALR 153): Leaving aside the appellant’s previous neck injury and the possibility that she might have taken unpaid maternity leave, there was little, if anything, in her circumstances to suggest that her earning capacity was at risk … She was in good health, fit and energetic; she was employed in a position which would not seem to involve exposure to accident or disease; and as an employee in a managerial position with American Express, she would not seem to have been at particular risk of redundancy or the possibility of being involved in industrial disputes.

In that case, the High Court reduced the contingency discount from 25 per cent to 12½ per cent.

Gratuitous Services 15.89 In Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387, the High Court accepted that a plaintiff disabled as a result of another’s negligence is entitled to recover a sum in damages representing the value of necessary services provided gratuitously by a relative or friend. In that case, the plaintiff, who was rendered a quadriplegic as the result of the defendant’s negligence, recovered damages which included a sum representing the value of nursing and other services provided for him in the past and to be provided in the future by his fiancé and members of his family. In upholding the award, the court departed from its previous decision in Blundell v Musgrave (1956) 96 CLR 73 at 79 and 92, where the High Court had held that expenses in an action for damages for personal injuries could only be recovered where there

was, or would be, a legal obligation to pay them. In departing from that view and recognising this head of damages, the court followed the line of authority from England: see Roach v Yates [1938] 1 KB 256; [1937] 3 All ER 442; Cunningham v Harrison [1973] 1 QB 942; 3 All ER 463; Donnelly v Joyce [1974] QB 454; [1973] 3 All ER 475. 15.90 In Van Gervan v Fenton (1992) 175 CLR 327; 109 ALR 283, the High Court reconsidered the principles governing gratuitous care services. The plaintiff was injured in a motor vehicle accident caused by the negligence of the defendant. As a result of his injuries, the plaintiff was in need of almost constant care which was provided by his wife [page 405] who gave up her employment as a nurse’s aide to care full-time for her husband. The trial judge calculated the value of the Griffiths v Kerkemeyer component of the award of damages on the basis of the net wages to be forgone by the plaintiff’s wife over the period that she would, in all probability, continue to care for him. The Full Court (Green CJ, Wright and Crawford JJ) upheld the trial judge’s assessment in respect of these items. The plaintiff appealed to the High Court on the ground that the damages should have been assessed by reference to the market value of the services required by him as a result of the defendant’s negligence, and not by reference to the loss sustained by his wife. The appeal was upheld. The High Court confirmed that the true basis of a claim for damages, with respect to care or services provided gratuitously to a person who has suffered personal injury, is the need of the plaintiff for those services and the plaintiff does not have to show that the need is or may be productive of financial loss. Accordingly, the plaintiff’s damages are not to be determined by reference to the actual cost to the plaintiff of having the care or services provided or by reference to the

income forgone by the provider of the services, but, generally, by reference to the market cost of providing the services. In the joint judgment of Mason CJ, Toohey and McHugh JJ, it was confirmed (at CLR 333–4; ALR 287–8): Once it is recognised that it is the need for the services which gives the plaintiff the right to an award of damages, it follows that the damages which he or she receives are not determined by reference to the actual cost to the plaintiff of having them provided or by reference to the income forgone by the provider of the services. As Stephen J pointed out in Griffiths [v Kerkemeyer (1977) 139 CLR at 178; 15 ALR 387 at 401], the principle laid down in Donnelly “is concerned not with what outlays of money the plaintiff will in fact incur as a consequence of his injuries but with the objective monetary ‘value’ of his loss”. Because the market cost of services is ordinarily the reasonable and objective value of the need for those services, the market cost, as a general rule, is the amount which the defendant must pay as damages. But in some cases the market cost may be too high to be the reasonable value of the services. Where, for example, the cost of providing the services at a remote location is much greater than providing those services in a densely populated area, it might be necessary to discount the market cost or value of the services needed by the plaintiff on the ground that the market cost or value was unreasonable in the circumstances. In other cases, there may be so little competition to provide the services that, judged objectively, the market cost is not the reasonable value of the services. No doubt the circumstances of particular plaintiffs may reveal other cases where the market cost of the services provided is not the reasonable value of the services reasonably needed. But the case will be rare indeed where the income forgone by the care provider is ever an appropriate guide to the fair value of the services required by the injured person. Whether the income forgone is below or above or equivalent to the market cost, the income forgone will usually be irrelevant, for the market cost will ordinarily represent the objective value of the services. Where there is no relevant market for the services or the market cost is objectively too high to be reasonable, the income forgone may be a starting point in cases where the nature and duration of the services provided and the previous work and hours of the care provider are roughly comparable, but such cases are likely to be rare.

15.91 Damages for gratuitous service were classified as pecuniary general damages as it is the need for the services that is being compensated and there is no resulting financial loss to the injured plaintiff, taking it ‘outside the area of special damages’: Kars v Kars (1996) [page 406]

187 CLR 354 at 361; 141 ALR 37 at 39 per Dawson J. Previously, it was held that in calculating damages for gratuitous services, it was irrelevant that the carer received any domiciliary nursing care benefit, for example a carer’s allowance: Wann v Fire and All Risks Insurance Co Ltd [1990] 2 Qd R 596. However, in Queensland, such an allowance would be taken into account under s 59(3) of the Civil Liability Act 2003 (Qld), which requires a court to take into account any offsetting benefit the service provider receives for the provision of the services and must also consider any periods where the plaintiff will be in hospital and, therefore, not require the services: see also Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 23(5). 15.92 Damages for gratuitous services may also be discounted to achieve the indemnity principle: see 15.142.

Gratuitous services provided by the defendant 15.93 In Lynch v Lynch (1991) 25 NSWLR 411 (Lynch), the problem was raised of whether there should be a reduction in damages in a Griffiths v Kerkemeyer situation whenever the provider of the services happens to be the defendant. In Lynch, the plaintiff had been injured, while unborn in her mother’s womb, due to the negligent driving of her mother. The point on appeal was whether the child could recover for the past gratuitous services provided by her mother, the defendant. Clarke JA for the court summarised (at 420): In conclusion I should emphasise the fact that I have considered the problem in the context of a compulsory insurance scheme. In that context there can be no question that a plaintiff who is compensated under the Griffiths principle is doubly compensated when the provider of the gratuitous services is the defendant. That plaintiff receives no more and no less than she would if those services had not been rendered by the defendant. In this case if the [plaintiff] had sued the Government Insurance Office (as she was entitled to), or if the vehicle had been uninsured and was being driven on a public street, and the nominal defendant had been sued, then there could be no question of double payment nor of over compensation. It is true that it may seem unfair that an uninsured defendant should be required to pay for services which she renders but that is such a remote prospect today that it is preferable to accept that anomaly rather than provide the insurance fund with a benefit at the expense of the plaintiff.

15.94 In the context of compulsory third party liability insurance, the New South Wales Court of Appeal recognised the injustice which would be occasioned to the plaintiff if the fortuitous circumstance of the caregiver being the defendant was allowed to defeat the plaintiff’s claim for compensation of the need for those services. The issue was also considered in Gowling v Mercantile Mutual Insurance Ltd (1980) 24 SASR 321; Jones v Jones [1982] Tas R 282; Gutkin v Gutkin [1983] 2 Qd R 764; Snape v Reid (1984) Aust Torts Reports ¶80-620; Motor Accidents Insurance Board v Pulford (1993) Aust Torts Reports ¶81-235; Maan v Westbrook [1993] 2 Qd R 267; Rosecrance v Rosecrance (1995) 105 NTR 1. 15.95 In Kars v Kars (1996) 187 CLR 354; 141 ALR 37, another motor vehicle accident case, the High Court unanimously agreed with the decision of Lynch. As Toohey, McHugh, Gummow and Kirby JJ expressed it (at CLR 382; ALR 57): [page 407] The result which is reached is not wholly satisfying. But a consideration of the conflicting opinions, judicial and academic, in Australia and England demonstrates why this is so. In the end, a choice must be made as to the least unsatisfactory solution to the problem. The choice which we prefer reduces the anomalies and absurdities. It lays emphasis on the provision for the injured plaintiff’s needs, which is the foundation of recovery in such a case. It avoids an effective windfall to a compulsory statutory insurer, which would depend on its taking advantage of the fulfilment by a family member (who happens to be the tortfeasor) of obligations derived from duty and affection. It measures to the full the plaintiff’s need for services. To the extent not already done, it requires their reflection in the premium costs of compulsory insurance levied on insureds as a whole. It reduces the risk of real injustice to a plaintiff should a court, discounting the damages for the plaintiff’s needs to be fulfilled by the tortfeasor, fail adequately to take into account the vicissitudes of life which could throw the plaintiff back on others, including commercial care givers, for services no longer provided by the tortfeasor.

Legislative restrictions

15.96 The damages awarded for gratuitous services are often a significant component of an award for personal injury, in particular to seriously injured plaintiffs. However, to disallow such a claim would lead to an increase in general damages for pain and suffering or loss of amenities if the plaintiff had to leave the home in order to be looked after adequately. In response to the large awards, many jurisdictions enacted legislation either limiting or abolishing the right to damages for gratuitous damages. 15.97 Damages for gratuitous services are treated differently in the jurisdictions in respect of the no fault compensation schemes. For example, in Victoria, there is no recoverability in motor and workplace accident cases: Transport Accident Act 1986 (Vic) s 93(10)(c); Accident Compensation Act 1985 (Vic) s 135A(10)(b). 15.98 Many jurisdictions address the issue of gratuitous services in the civil liability legislation, imposing thresholds and maximums on the right of recovery: Civil Liability Act 2002 (NSW) s 15; Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 23; Civil Liability Act 2003 s 59 (Qld); Civil Liability Act 1936 (SA) s 58; Civil Liability Act 2002 (Tas) s 28B; Wrongs Act 1958 (Vic) s 28IA; Civil Liability Act 2003 (WA) s 12. Only the Australian Capital Territory has chosen not to limit or set thresholds for the recovery of gratuitous services arising from personal injuries other than arising from work accidents and motor vehicle accidents. 15.99 As to be expected, in light of the fact that damages for gratuitous services may be quite substantial, the legislative restrictions have raised many interpretation issues. Section 59(1) of the Civil Liability Act 2003 (Qld) states: Damages for gratuitous services provided to an injured person are not to be awarded unless — (a) the services are necessary; and (b) the need for the services arises solely out of the injury in relation to which damages are awarded; and (c) the services are provided, or are to be provided — (i)

for at least 6 hours per week; and

(ii) for at least 6 months.

[page 408] 15.100 In Kriz v King [2007] 1 Qd R 327, it was argued by the appellant that the correct interpretation of the provision was that no damages for future gratuitous services could be awarded unless the evidence was that the care would continue to be at least six hours per week. The Queensland Court of Appeal held that s 59 was to be interpreted in a way that least reduced a plaintiff’s claim for damages as rights before the civil liability legislation had been unfettered. Therefore, once the threshold of six hours per week for at least six months was met, damages for gratuitous services could be awarded even if the future care would be less than six hours a week. However, this approach has been criticised. It is argued that the presumption that parliament does not intend to abrogate common law rights applies to ‘fundamental rights, immunities and freedoms’, but not to the civil liability legislation: Harrison v Melhem (2008) 72 NSWLR 380 at [7] per Spigelman CJ. This argument is based upon comments from members of the High Court: see, for example, Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; 198 ALR 100 at [36] per McHugh J; Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491; 187 ALR 1 at [143]–[147] per Kirby J. 15.101 In Clement v Backo [2007] 2 Qd R 99, the plaintiff was injured as a passenger in a motor vehicle accident. The defendant admitted liability and the trial judge assessed damages to include gratuitous services. The gratuitous services were provided by the plaintiff’s wife in maintaining a commercial timber plantation. The trial judge held that the gratuitous services arose solely from the accident. Had the wife not worked in the plantation, the plaintiff would have suffered economic loss. Applying the principles of Medlin v State Government Insurance Commission (1995) 182 CLR 1 (see 15.68), the Court

of Appeal held that the plaintiff’s entitlement to damages for his loss of earning capacity should not be reduced because of the wife’s gratuitous services. The Court of Appeal agreed with the trial judge that the wife’s work in the timber plantation was ‘unquestionably’ gratuitous services: at [34]. The court referred to CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1, noting that the High Court had indicated that ‘the principle in Griffiths v Kerkemeyer strongly emphasises the anomalous character of such an award of damages and that the principle should not be extended in the absence of clear authority’: at [31]. 15.102 In the Queensland Act there is no definition of ‘gratuitous services’ and therefore the meaning is as at common law in Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387; Kriz v King [2007] 1 Qd R 327 at [12]. 15.103 The civil liability legislation in some jurisdictions specifies the hourly rate at which gratuitous services are to be calculated: Civil Liability Act 2002 (NSW) s 15(4), (5); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 23(3), (4); Civil Liability Act 2002 (Tas) s 28B(3); Wrongs Act 1958 (Vic) s 28IB; Civil Liability Act 2003 (WA) s 12(5).

Gratuitous Domestic Services 15.104 In Sullivan v Gordon (1999) 47 NSWLR 319, it was held that an injured plaintiff could claim damages for the loss of their capacity to provide gratuitous services for another because of their injury. The damages were assessed at the commercial rate of such services. The decision was followed in the Australian Capital Territory (Brown v Willington [2001] ACTSC 100) and Western Australia: Easther v Amaca Pty Ltd [2001] WASC 328; [page 409]

Thomas v Kula [2001] WASCA 362. Such damages had previously been permitted in Queensland: Sturch v Willmott [1997] 2 Qd R 310; Waters v Mussig [1986] 1 Qd R 224. The High Court in CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1 overruled Sullivan v Gordon and held that such damages could not be claimed and that the principles of Griffiths v Kerkemeyer could not be applied to such claims by analogy. If a plaintiff can no longer provide gratuitous services to another, such a loss may be compensated as a loss of amenity: at [76]. 15.105 In response to the decision of CSR Ltd v Eddy, some jurisdictions have amended the civil liability legislation to allow compensation in limited circumstances. For example, in Queensland, a plaintiff may claim damages for the loss of being unable to provide gratuitous domestic services if: the plaintiff is entitled to a specified minimum of general damages; the recipient of the services is either an unborn child of the plaintiff or a person who resides at the plaintiff’s residence; but for their injury the plaintiff would have provided care for at least six hours a week for six months; or the need for the care is reasonable in all of the circumstances: Civil Liability Act 2003 (Qld) s 59A. See also Civil Law (Wrongs) Act 2002 (ACT) s 100; Civil Liability Act 2002 (NSW) s 15B; Wrongs Act 1958 (Vic) s 28ID. 15.106 Liverpool City Council v Laskar (2010) 77 NSWLR 666 considered the meaning of ‘gratuitous domestic services’ as in the New South Wales legislation. In that case damages were awarded to the plaintiff to compensate for the loss that he was not able to provide care to his 14-year-old daughter who had spina bifida. The evidence was that prior to his injury, the care he provided to his daughter included daily basic physiotherapy and massage. ‘Gratuitous domestic care’ is defined in s 15B(1) of the Civil Liability Act 2002 (NSW) as ‘services of a domestic nature for which the person providing the

service has not been paid or is not liable to be paid’. The defendant argued on appeal that this was not domestic care as defined in the Act but equated with palliative or nursing care, relying upon the differences between ss 15 and 15A of the Act. Section 15 contains a definition of ‘gratuitous attendant care services’ which includes nursing services. Section 15A, which provides for damages for gratuitous attendant care services in proceedings of dust disease, states that the definition of ‘gratuitous attendant care services’ has the same meaning as in s 15. By not referring to the definition in s 15, it was alleged that parliament intended there to be a difference between s 15B and the other sections, and it did not include nursing care. The court held that the phrase ‘domestic services’ was to be given its ordinary meaning: at [62]. Whealy J stated (at [57]–[58]): Damages for gratuitous attendant care services under s 15 pre-supposes an injured plaintiff with a need for those care services. In that circumstance, it is understandable that the legislature has posed a range of care services (not mutually exclusive) which travel beyond the provision of services of a domestic nature. In serious injury cases, for example, (such as quadriplegia, brain

[page 410] damage and the like) friends and family may provide the plaintiff with a wide range of services in a hospital or a rehabilitation centre. … By contrast, the phrase “domestic services” in s 15B does not envisage as a matter of necessity that a claimant’s dependants will be injured or require special care treatment because of physical or mental disability. Nevertheless, s 15B(2)(b) recognises that the damages may only be awarded where the claimant’s dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity. The key to s 15B is the relationship of dependency, coupled with the reasons why it is that dependants were not and will not be capable of performing the services themselves. The meaning to be given to the phrase “domestic services” in any particular context will vary according to the nature of the dependency, the obligations the relationship will normally impose, and the history of the provision of past domestic services.

Non-Pecuniary General Damages

15.107 Assessment of non-pecuniary general damages, the non-economic loss, requires the court to consider losses that are subjective to the plaintiff. Prior to the civil liability legislation, these damages were assessed under the following heads of damage: pain and suffering; loss of amenities/enjoyment of life; and loss of expectation to life. Each non-pecuniary head of damage was considered separately and itemised. Under the civil liability legislation, these subjective losses are taken into account, but instead of an individual assessment of each, a tariff system is applied according to the type of injury suffered by the plaintiff. 15.108 The non-pecuniary general damages are referred to by various names in the civil liability legislation: non-economic loss — Australian Capital Territory, New South Wales, South Australia, Tasmania and Victoria: Civil Law (Wrongs) Act 2002 (ACT) s 99(4); Civil Liability Act 2002 (NSW) s 3; Civil Liability Act 1936 (SA) s 3; Civil Liability Act 2002 (Tas) s 3; Wrongs Act 1958 (Vic) s 28B; general damages — Queensland: Civil Liability Act 2003 (Qld) s 51; and non-pecuniary loss — Northern Territory and Western Australia: Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 24; Civil Liability Act 2002 (WA) s 9(4). However, nearly all encompass the following: pain and suffering; loss of amenities of life; loss of expectation of life; and disfigurement or bodily harm (not included in Wrongs Act 1958 (Vic)).

15.109 With the exception of Tasmania and the Australian Capital Territory, legislative caps have been imposed on the recovery of nonpecuniary general damages: Civil Liability Act 2002 (NSW) s 16(2); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 27; [page 411] Civil Liability Act 2003 (Qld) s 62; Civil Liability Act 1935 (SA) s 52(2); Wrongs Act 1958 (Vic) s 28G; Civil Liability Act 2002 (WA) s 10. The maximum amount allowed is indexed annually. 15.110 The legislation of New South Wales, the Northern Territory, South Australia, Tasmania and Western Australia also contains thresholds for the recovery of general damages. For example, Civil Liability Act 2002 (NSW) s 16(1) states, ‘[n]o damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case’. See also Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 27(2) (permanent impairment of less than 5 per cent of the whole person); Civil Liability Act 1935 (SA) s 52(1) (prescribed minimum medical expenses and significant impairment of at least seven days); Civil Liability Act 2002 (Tas) s 27(1) (amount less than prescribed amount); Civil Liability Act 2002 (WA) s 9(1) (amount less than prescribed amount).

Assessment of non-pecuniary general damages 15.111 The actual process of assessment of general damages varies between the states and territories. In New South Wales, the plaintiff’s noneconomic loss is assessed as a percentage of the most extreme case (an amount indexed annually) and then applied to the table in s 16 of the Civil Liability Act 2002 (NSW) to come to the monetary figure. A similar process is adopted in the Northern Territory: Personal Injuries (Liabilities and

Damages) Act 2003 (NT) s 27. The majority of jurisdictions simply allow the court to have regard to earlier decisions in respect of non-economic loss: Civil Law (Wrongs) Act 2002 (ACT) s 99; Wrongs Act 1958 (Vic) s 28HA; Civil Liability Act 2002 (Tas) s 28; Wrongs Act 1958 (Vic) s 28HA; Civil Liability Act 2002 (WA) s 10A. Sliding scales have been adopted by Queensland and South Australia. 15.112 Queensland The recommendation of the Ipp Report5 of a tariff system for the assessment of non-pecuniary loss was adopted by Queensland. Section 61 of the Civil Liability Act 2003 (Qld) requires the court to allocate an injury scale value (ISV) between 0–100 to the plaintiff’s injuries. Schedule 4 of the Civil Liability Regulation 2014 (Qld) itemises all possible physical injuries and provides a range of ISVs for each. Section 2 of Sch 3 of the Civil Liability Regulation 2014 (Qld) provides, ‘[t]he range of ISVs for the injury reflects the level of adverse impact of the injured person’. To allocate an ISV, a court must assess the ISV as required by regulation and have regard to ISVs allocated to similar injuries in previous proceedings: Civil Liability Act 2002 (Qld) s 61(1)(c); Civil Liability Regulation 2014 (Qld) s 7. 15.113

The regulation provides a range of rules a court must follow:

If the plaintiff has suffered multiple injuries, the court must identify the dominant injury (Civil Liability Regulation 2014 (Qld) Sch 3, s 3), defined as the injury with the highest range of ISV: Civil Liability Regulation 2014 (Qld) Sch 8. [page 412] Any adverse psychological reaction to a physical injury is merely a feature of the injury: Civil Liability Regulation 2014 (Qld) Sch 3, s 5. If the plaintiff suffers an aggravation of a pre-existing condition, ‘the court may have regard only to the extent to which the pre-existing

condition has been made worse by the injury’: Civil Liability Regulation 2014 (Qld) Sch 3, s 7. 15.114 As to how a court determines the ISV, various factors may be relevant. The court must take into account the provisions relevant to Sch 4 of the Regulation which provides examples of the injury, factors that will affect the ISV assessment and comments about the appropriate level of ISV: Civil Liability Regulation 2003 (Qld) Sch 3, s 8. If the medical reports state a whole person impairment percentage, the court must have regard to it but it is not the only consideration when allocating the ISV: Civil Liability Regulation 2014 (Qld) Sch 3, s 10. In Schedule 4, many of the comments as to the appropriate level of ISV refer to a whole person impairment percentage. ‘Whole person impairment’ is defined as ‘an estimate, expressed as a percentage, of the impact of a permanent impairment caused by the injury on the [plaintiff’s] overall ability to perform activities of daily living other than employment’: Civil Liability Regulation 2014 (Qld) Sch 8. 15.115 In addition to the comments provided by the relevant item in Sch 4, a court may take the following into account if relevant: the plaintiff’s age and life expectancy; the degree of insight; pain and suffering; loss of amenities; the effects of any pre-existing injury; difficulties in life that were likely to have emerged for the plaintiff even if not injured; and the ISV ranges and comments of injuries other than the identified dominated injury: Civil Liability Regulation 2014 (Qld) Sch 3, s 9. Under the common law, a court took into account these factors when assessing non-pecuniary losses.

Age and life expectancy 15.116 The plaintiff’s age will influence the court’s assessment, particularly where the plaintiff suffers permanent injury. A young plaintiff with permanent injuries would warrant a higher award than an elderly plaintiff with the same injuries. This was pointed out in Reece v Reece (1994) 19 MVR 103, a decision under the Motor Accidents Act 1988 (NSW) which assesses non-economic loss as a percentage of the most extreme case as does the Civil Liability Act 2002 (NSW). In that case the trial judge accepted that the plaintiff’s non-economic loss was 33⅓ per cent of a most extreme case. The plaintiff was 64 years old. On appeal, the assessment was reduced. Handley JA stated (at 105): [page 413] The difficulty, in my opinion, with his Honour’s assessment is to reconcile it with the assessment that might properly be made in the case of a much younger woman, say 30 years old, who before her injury had a similar range of interests and hobbies but had young children to help bring up and who, of course, faced a much longer period during which she would experience the pain, the disabilities and the progression of her condition. It seems to me that when one seeks to compare the position of this plaintiff with a woman, say, 30–35 years younger than herself at the date of injury, it becomes evident that an assessment of this plaintiff as being 1/3 of a most extreme case is a wholly erroneous assessment and disproportionate to a true assessment of the extent of her loss.

15.117 Age is also relevant when considering pain and suffering and loss of amenities. Under the common law, if the plaintiff’s life was expected to end earlier due to the defendant’s negligence, damages for loss of expectation of life were allowed. Such damages for loss of expectation of life were awarded in respect of the subjective and objective loss of prospective happiness for the period by which the plaintiff’s life has been reduced: Sharman v Evans (1977) 138 CLR 563; 13 ALR 57; Jackson v Jackson (1970) 2 NSWR 454. The courts judicially legislated to provide a conventional sum for the objective loss to

acknowledge that the plaintiff’s life would not be as long as expected due to the negligence of the defendant: Suley v City Joiners Pty Ltd (1970) 65 QJPR 141; Richters v Motor Tyre Service Pty Ltd [1972] Qd R 9; Gannon v Gray [1973] Qd R 411. 15.118 Therefore, even an unconscious plaintiff would have been entitled to this part of the award. Being an objective component, the plaintiff’s age, social status or the length of life to be lost were irrelevant.

Degree of insight 15.119 Whether or not the plaintiff is aware of their changed circumstances is relevant in assessing non-pecuniary general damages. A plaintiff who is fully aware of their condition or the change in their circumstances is entitled to more damages than a plaintiff who has no level of awareness. A plaintiff’s degree of insight is also relevant to assessing their pain and suffering (see 15.122) and loss of amenities: see 15.127; Skelton v Collins (1966) 115 CLR 94.

Pain and suffering 15.120 In Teubner v Humble (1962) 108 CLR 491 at 507, Windeyer J noted that the phrase ‘pain and suffering’ contemplates the actual physical pain and was the head of damages ‘least susceptible of monetary assessment’. 15.121 Pain and suffering is an entirely subjective sensation of distress. The extent and the duration of the pain and suffering are relevant: see O’Shea v Sullivan (1994) Aust Torts Reports ¶81-273; Casey v Zurgalo [1968] ALR 134. Other relevant factors are: the circumstances giving rise to the injury (Freudhofer v Poledano [1972] VR 287 — plaintiff caught underneath defendant’s vehicle and dragged);

distress, worry or anxiety caused by necessary medication (O’Shea v Sullivan (1994) Aust Torts Reports ¶81-273 — plaintiff required to take morphine); and [page 414] mental illness consequent upon physical injuries: Admiralski v Stehbens [1960] Qd R 510. 15.122 It is assumed that a plaintiff who is permanently unconscious cannot feel pain and suffering. For example, see Skelton v Collins (1966) 115 CLR 94, in which a 17-year-old remained unconscious from the date of the motorcycle accident up to the date of trial and was likely to remain unconscious until death. Taylor J held (at 108): If a plaintiff’s condition, as a result of his injuries, is such that he is insensible to physical pain and suffering, it would be inappropriate to award damages under this head, the reason for this being simply that a plaintiff in such a condition does not experience pain and, consequently, does not suffer on that account.

15.123 Included in pain and suffering is any discomfort, inconvenience and frustration experienced by the plaintiff due to their injuries: Admiralski v Stehbens [1960] Qd R 510.

Loss of amenities 15.124 ‘Loss of amenities’ (also called ‘loss of enjoyment of life’) refers to the deprivation of the ability of the plaintiff to participate in normal activities and to enjoy life to the full: Teubner v Humble (1962) 108 CLR 491; Parker v Parker [1979] Qd R 50. The plaintiff’s age, lifestyle and awareness will be relevant. 15.125 A comparison is made between the activities that the plaintiff participated in prior to their injuries and those afterwards. A plaintiff who

participated in sports regularly or had various hobbies that due to their injuries they can no longer carry out would receive more damages than a plaintiff whose daily activities had not altered significantly. Loss of tribal status to an indigenous person is considered to be a loss of amenity. For example, in Napaluma v Baker (1982) 29 SASR 192, the plaintiff was disfigured in a road accident, preventing tribal marking of the body for initiation purposes. This was followed in Dixon v Davies (1982) 17 NTR 31, where a loss of cultural fulfilment was relevant under loss of amenities and pain and suffering: at 34. See also Weston v Woodroffe (1985) 36 NTR 34. 15.126 The plaintiff’s age is a consideration; however, it should not be assumed that an older plaintiff would experience significantly less in respect of enjoyment of life. In Miller v Imperial College Healthcare NHS Trust [2014] EWHC 3772 (QB), the court rejected the defendant’s argument that the age of the plaintiff, 70 at the date of trial, would significantly affect the assessment of damages for pain and suffering and loss of amenities. At the time of the negligence the plaintiff was 63 years old and was ‘young for her years, fit and active, and intending to work for as long as she could’: at [25]. A deduction was appropriate in light of the plaintiff’s age, but the award should be fair and just to recognise that she had the advantage of good physical fitness, agility and mobility before the defendant’s negligence. 15.127 If the plaintiff is not able to understand the loss, a lower ISV would be applicable. In Skelton v Collins (1966) 115 CLR 94 at 113, Taylor J stated: The expression “loss of amenities of life” is a loose expression but as a head of damages in personal injury cases it is intended to denote a loss of the capacity of the injured person consciously to enjoy life to the full as, apart from his injury, he might have done. … a proper assessment can

[page 415] be made only upon a comparison of the condition which has been substituted for the victim’s

previously existing capacity to enjoy life and where the mind is, as it were, willing and the body incapable there is, in my view, a much higher degree of loss than where the victim is completely insensible to his lost capacity.

Pre-existing condition 15.128 If the plaintiff had a pre-existing condition, this may impact upon the assessment of their general damages. A court will consider whether the defendant’s negligence is the cause of the pain and suffering or loss of amenities, or whether the pre-existing condition has been aggravated to affect these factors. For example, in Phillips v MCG Group Pty Ltd [2012] QSC 149, the plaintiff had a pre-existing injury to his lumbar spine which required medication for pain management. When injured due to the defendant’s negligence, the plaintiff suffered further injury to their spine and required increased medication. The court held (at [52]): In view of the significant medications that the plaintiff required in order to function before the accident, it would not reflect the reality of his pre-accident condition to compensate him on the basis that the accident should be treated as the cause of all his pain and suffering. His enjoyment of life had been diminished prior to the accident by the persistent pain level that required significant medications.

Other Expenses 15.129 As the aim of compensatory damages is to place the plaintiff in the position as if no wrong was committed against them, any other expenses may be claimed if they were reasonably necessary for the plaintiff’s condition. 15.130 If a plaintiff requires their home to be remodelled to allow wheelchair access, this may be claimed as part of the damages. In Diamond v Simpson (No 1) (2003) Aust Torts Reports ¶81-695, the respondent suffered cerebral palsy due to the negligence of a doctor at the time of her birth. In her action in negligence, the respondent’s claim included the cost of a home either being purpose-built for her or of one being modified, plus the cost of modifications to her parents’ home, where she had lived for most of her life,

as well as modifications to two family holiday houses. The trial judge allowed all of the claims except for the holiday home at Thredbo. On appeal, the appellant argued that the modification costs were unreasonable and disproportionate. The New South Wales Court of Appeal agreed, holding that no allowance should be made for modifications to the parents’ home as the respondent was going to be living elsewhere. As for the holiday home, the evidence was that the family used it only for two weeks a year and, although modifications would increase the respondent’s accessibility, it was unreasonable to allow such a claim. 15.131 A claim may also be made for the cost of administering the award of damages if the need for the administrator is due to the plaintiff’s inability to manage their funds due to the injury they suffered from the defendant’s negligence. In Government Insurance Office of New South Wales v Rosniak (1992) 278 NSWLR 665 at 684–5, Mahoney JA stated: Many, if not most, plaintiffs lack the appropriate skill to manage a large award. But that does not mean that, when the amount awarded is large, the management costs are to be seen as

[page 416] resulting from the defendant’s negligence. Often, perhaps ordinarily, they will not. On the other hand, where the defendant’s negligence produces a particular incapacity in the plaintiff such that, because of that capacity, her affairs must be managed for her, that I think will be usually sufficient.

The High Court considered the issue of costs that may be allowed to manage an award of damages for personal injury in Willett v Futcher (2005) 221 CLR 627; 221 ALR 16. The High Court held that if a plaintiff requires that an administrator be appointed to manage their financial affairs due to their incapacity to manage their own, arising from the negligence of the defendant, the cost of the administrator in the management of the funds is recoverable. Therefore, a claim for the reasonable charges and expenditure incurred during the intended life of the fund is allowed: at [49]. See also Gray by her

tutor Gray v Richards (2014) 253 CLR 660; 313 ALR 579; Nominal Defendant v Gardikiotis (1996) 186 CLR 49. In South Australia, no damages may be awarded to compensate for the cost of the investment or management of the amount awarded: Civil Liability Act 1936 (SA) s 57. 15.132 If a plaintiff is severely injured, just as they may need an administrator to manage their award of damages, they may need an independent case manager to organise their care. For example, in Waller v Suncorp Metway Insurance Ltd [2010] 2 Qd R 560, the plaintiff was in a motor vehicle accident at the age of 12. He was severely brain damaged and in need of constant care. An award of over $5 million was made and on appeal it was argued that the assessment was inadequate. One component of the claim was for the cost of an independent case manager. The court allowed the claim and stated (at [98]): Such a person would objectively assess his care needs on an ongoing and evolving basis and ensure that appropriate care arrangements are in place. Such an arrangement would ensure the suitability and the quality of care to be provided. It also affords a level of protection to the plaintiff, as well as ensuring he has someone independent who can assess and advocate for his care needs as they change with his age and as the circumstances around him change.

Achieving the Indemnity Principle 15.133 As noted at 15.31, the indemnity principle requires that the award of damages does not over- or under-compensate the plaintiff. In assessing earning capacity, this is partly achieved by making a deduction of the vicissitudes of life, assessing the loss as the net wage and ensuring that any overlap between past loss of earning capacity reflects any award of special damages for time spent in hospital: see 15.83. The following are also relevant in achieving the indemnity principle.

Benefits from other sources

15.134 Collateral benefits which flow to the plaintiff from the defendant’s wrongdoing may need to be set off against damages under the indemnity principle, to ensure that the plaintiff is not compensated twice for the same loss. In order for benefits to be set off under the indemnity principle, they must result from the tortious conduct. However, not all benefits will be set off. For example, the proceeds of the plaintiff’s own private insurance are not set off (Bradburn v Great Western Railway Co (1874) LR 10 Ex 1), nor are voluntary payments by way of gifts or free medical attention: Cusack v Heath [1950] [page 417] QWN 16. In National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 598, Windeyer J reasoned that voluntary gifts should not be taken into account to reduce damages as ‘they are given for the benefit of the sufferer and not the benefit of the wrongdoer’. In Papadopoulos v MC Labour (Ruling No. 2) [2009] VSC 176 at [12], Beach J stated: Generally a court is required to consider the nature of the benefit which is sought to be set off against a plaintiff’s damages, and to inquire whether the person or body supplying the benefit intended that the plaintiff should enjoy it in addition to whatever damages he might recover. See also Zheng v Cai (2009) 261 ALR 481 at [20], where the High Court stated: The “intent” of the donor thus assumed great importance, but it was an intent of a particular character, contrasting an intention to benefit the wrongdoer with an intention to benefit the victim.

15.135 Employment benefits If a plaintiff receives sick pay in lieu of wages, any such amount will be set off against the award for the loss of earnings as the plaintiff will have suffered no loss: Graham v Baker (1961) 106 CLR 340.

If the plaintiff is so incapacitated that their employment ends, no deduction is made for any entitlement to a pension or superannuation payments: Watson v Ramsay [1960] NSWR 462; Grego v Mt Isa Mines Ltd [1972] QWN 33; Graham v Baker (1961) 106 CLR 340. If a plaintiff accepts a redundancy package from their employer, the benefits are not set off unless the defendant can prove that the benefit was for the purpose of replacing lost earning capacity independent of any action against the defendant: Hall v Cramer (2003) 40 MVR 477. Redundancy payments arise upon termination of employment and are based upon the number of years of service. 15.136 Voluntary payments by an employer In Hobbelen v Nunn [1965] Qd R 105, it was held that if an employer makes a gift of money to an injured employee, usually this payment is not taken into account when assessing damages, unless the payment was intended to replace wages. Therefore, in Koremans v Sweeney [1966] QWN 46, when an employer paid wages to an injured employee beyond his entitlement to sick pay, there was no loss of income suffered. However, in Treloar v Wickham (1961) 105 CLR 102, the injured employee entered into an agreement to pay back to the employer a sum equal to lost wages advanced as a loan when his claim was finalised. This amount was not set off. 15.137 Workers’ compensation A plaintiff who has received workers’ compensation and successfully recovers damages under the common law is required to pay back any workers’ compensation payments received. Therefore, no set-off is made by the court as such but, in the calculation of the damages, the amount of workers’ compensation paid is deducted as the relevant authority has a first charge over the award: Workers’ Compensation Act 1954 (ACT) s 184(2); Workers’ Compensation Act 1987 (NSW) s 151A(2); Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 207B; Return to Work Act 2014 (SA) s 75; Workers Rehabilitation and Compensation Act 1988 (Tas) s 133; Workers’ Compensation Act 1958 (Vic)

s 65(1); Workers’ Compensation and Injury Management Act 1981 (WA) s 92. There is no right to common law damages for work-related injuries in the Northern Territory: Return to Work Act 1986 (NT) s 52. [page 418] As tax is paid on workers’ compensation, a plaintiff may claim as part of their award the tax paid, as they are required to repay the gross amount received: Fox v Wood (1981) 148 CLR 438. 15.138 Social security benefits The effect of decisions of the Australian courts in regard to whether social security payments should be set off (for example, National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569; Redding v Lee (1983) 151 CLR 117) have largely been abrogated by the Social Security Act 1991 (Cth). The Act requires that compensation payments — including workers’ compensation, motor vehicle accident and common law damages for personal injury — be taken into account in determining eligibility for certain pensions, benefits or allowances: Social Security Act 1991 (Cth) s 17(1). Past payments of social security may be recovered as a result of receipt of a lump sum damages award (Social Security Act 1991 (Cth) s 1178) and a notice may be served upon the defendant requiring that they repay the amount owing directly: s 1184. Therefore, if a plaintiff has received social security payments and receives common law damages, the payments made may be recovered as a debt owing to the Commonwealth. 15.139 Medicare benefits under the Health Insurance Act 1973 (Cth) are not available to a person who has received a damages award and should, therefore, also be ignored for the purposes of damage assessments. The

legislation requires repayment of Medicare benefits already received by a subsequently successful litigant: Health Insurance Act 1973 (Cth) s 18.

Future economic losses 15.140 A plaintiff whose award of damages includes compensation for future economic loss is receiving a benefit that may mean they are overcompensated, in contravention of the indemnity principle. Receipt of a lump sum provides a plaintiff with an investment opportunity that he or she would never have had in real life. For example, if a plaintiff is compensated for loss of future earning capacity, they receive a lump sum amount representing that loss. Under normal circumstances, this income would be earned over a period of time. Likewise, if a plaintiff is compensated for the cost of future medical and hospital treatment, they are provided with a lump sum before the costs are incurred. The same principle applies to all awards for future pecuniary losses. However, against this must be balanced the effect of inflation on any lump sum award which will diminish its value over time. 15.141

Past inflation is often held to be relevant to:

loss of earning capacity having an effect on earnings to the date of trial; medical and similar expenses; and a consideration of past awards in determining the damages appropriate for non-pecuniary loss to the date of verdict. Future inflation is generally held to be not relevant to loss of earning capacity, but may be in relation to future medical and similar expenses: O’Brien v McKean (1968) 118 CLR 540; Scott v Heathwood [1953] St R Qd 91; Murphy v Houghton & Byrne (Qld) Pty Ltd [1964] QWN 6; Todorovic v Waller (1981) 150 CLR 402; 37 ALR 481; Lim Poh Choo v Camden [page 419]

& Islington Area Health Authority [1980] AC 174. For example, the cost of an operation at the time of trial will not be the same in five years time when the plaintiff may actually incur the cost for it. The primary reasons given for refusing to take account of inflationary wage increases have been their speculative nature and difficulty of proof: Todorovic v Waller (1981) 150 CLR 402; 37 ALR 481. Instead, inflation is allowed for by the view that the sum awarded may be invested as a counter to inflation. 15.142 In ascertaining the present value of future economic losses, it is necessary to discount to take account of both the interest obtainable on the investment and the possibility that it will, in fact, never be spent. One method is to apply a discount rate to awards of future economic loss. The High Court had considerable difficulty in deciding upon the appropriate discount rate: see Pennant Hills Restaurants Pty Ltd v Barrell Insurances Ltd (1981) 145 CLR 625; 34 ALR 162, where the various members of the court held that discounts of 0 per cent, 2 per cent and 5 per cent were appropriate. In Todorovic v Waller (1981) 150 CLR 402; 37 ALR 481, the court judicially legislated for a 3 per cent figure, but only as a compromise, since the individual preferences ranged from 4 per cent (Gibbs CJ and Wilson J), to 3 per cent (Aikin and Brennan JJ), to 2 per cent (Mason J) and 0 per cent (Stephen and Murphy JJ). Australian jurisdictions have legislated that awards of lump sums for future economic loss are discounted at a prescribed rate. For example, s 57 of the Civil Liability Act 2003 (Qld) provides: (1) When assessing an amount of damages as a lump sum for a future loss or gratuitous services, the amount must be the present value, calculated using the prescribed discount rate, of the future loss or gratuitous services. (2) In this section— prescribed discount rate, for an award, see the Civil Proceedings Act 2011, section 61.

See also Civil Liability Act 2002 (NSW) s 14 (5 per cent); Personal Injuries (Liability and Damages) Act 2003 (NT) s 22 (5 per cent); Civil Proceedings Act 2011 (Qld) s 61 (5 per cent); Civil Liability Act 1936 (SA) ss 3, 55 (5 per cent); Civil Liability Act 2002 (Tas) s 28A (5 per cent); Wrongs Act 1958 (Vic)

s 28I (5 per cent); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 5 (6 per cent). In the Australian Capital Territory, the default rate of 3 per cent applies as judicially legislated in Todorovic v Waller (1981) 150 CLR 402; 37 ALR 481.

Interest 15.143 A court may order that interest will be included in the sum for which judgment is given at such rate as it thinks fit on the whole or any part of the sum, for the whole or any part of the period between the date when the cause of action arose, not the date of the writ (Parker v Guardian Fire Sprinkler Co (Qld) Pty Ltd [1982] Qd R 709), and the date on which judgment takes effect. 15.144 Although interest is discretionary, interest should be awarded in the normal case: Hadzigeorgiou v O’Sullivan [1983] 1 Qd R 55. The different pieces of legislation deal with [page 420] the extent of a court’s discretion to award interest in different ways: Judiciary Act 1903 (Cth) s 77MA; Court Procedures Rules 2006 (ACT) s 1619; Civil Procedure Act 2005 (NSW) s 100; Supreme Court Act 1979 (NT) s 84; Civil Proceedings Act 2011 (Qld) s 58; Supreme Court Act 1935 (SA) s 30C; Supreme Court Act 1986 (Vic) s 60; Supreme Court Act 1935 (WA) s 32. Tasmania, alone, has a peculiarly limited discretion: Supreme Court Civil Procedure Act 1932 s 35. 15.145 In Fire and All Risks Insurance Co Ltd v Callinan (1978) 140 CLR 427; 21 ALR 375, the High Court affirmed the decision of the Full Court of the Supreme Court of Queensland that, in the exercise of the discretion conferred by such legislation (Common Law Practice Act 1867 (Qld) s 72, the

equivalent of the present Civil Proceedings Act 2011 (Qld) s 58), the trial judge should distinguish items of detriment suffered to the date of judgment as well as those to be suffered in the future and, in particular, interest should be allowed only on that part of the damages for loss up to the date of judgment. 15.146 The High Court had endorsed a discretion to award ordinary commercial rates of 12 per cent: Cullen v Trappell (1980) 146 CLR 1; 29 ALR 1; Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527. However, MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; 98 ALR 193 overruled Cullen v Trappell on the point that the ordinary commercial rate should be applied to the nonpecuniary components of the award, applying instead a rate of 4 per cent to achieve fair and reasonable compensation. This lower rate also was to apply to damages for gratuitous services: Grincelis v House (2000) 201 CLR 321; 173 ALR 564. 15.147 The civil liability legislation in the majority of Australian jurisdictions prohibits the awarding of interest on non-pecuniary damages: Civil Liability Act 2002 (NSW) s 18 (non-economic loss and gratuitous services); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 29 (non-pecuniary losses and gratuitous services); Civil Liability Act 2003 (Qld) s 60 (general damages and gratuitous services); Civil Liability Act 1936 (SA) s 56 (non-economic and future loss); Supreme Court Act 1935 (WA) s 32(2) (general damages).

The Award 15.148 The date of the verdict is the proper date to assess damages: O’Brien v McKean (1968) 118 CLR 540.

Costs 15.149

The successful party’s legitimate expenses incidental to his or her

legal action are paid, in general, by the unsuccessful party. Costs in actions at common law have an ancient history and were first awarded only to successful plaintiffs in the 13th century under the Statute of Gloucester. It was not until the 16th century that defendants who were successful became entitled to costs. Legislation has been introduced to regulate legal costs in personal injuries litigation. See, for example, Civil Law (Wrongs) Act 2002 (ACT) Ch 14; Legal Profession Uniform Law Application Act 2014 (NSW) ss 61, 62; Personal Injuries Proceedings Act 2002 (Qld) s 56. [page 421]

Taxation 15.150 An award of damages for personal injury, either as a lump sum or under a structured settlement (see 15.36), is not considered as income for the purposes of taxation: Atlas Tiles Ltd v Briers (1978) 144 CLR 202; 21 ALR 129; Groves v United Pacific Transport Pty Ltd [1965] Qd R 62. Any interest awarded as part of a plaintiff’s damage is classified as income and is therefore taxable: Whitaker v Federal Commissioner of Taxation (1996) Aust Torts Reports ¶81-400. This is because, ‘[t]he reason for awarding interest is to compensate the plaintiff for having been kept out of money which theoretically was due to him at the date of his accident’: Thompson v Faraonio (1979) 24 ALR 1 at 7 (UKPC).

Appeals on damages 15.151 The mere fact that the award is particularly high does not warrant interference on appeal: Diamond v Simpson (No 1) (2003) Aust Torts Reports ¶81-695. The only proper way of deciding whether a global award is too high or too low is by assessing the separate items: Keefe v R T & D M Spring Pty

Ltd [1985] 2 Qd R 363. In Calder v Boyne Smelters Ltd [1991] 1 Qd R 325, it was explained: Clearly, the assessment of damages is an area where different minds may properly come to different views. The assessment of damages for personal injuries involves “the exercise of a form of judicial discretion” (per Dixon J. Lee Transport Co Ltd v Watson (1940) 64 CLR 1 at 13; Miller v Jennings (1954) 92 CLR 190 at 195–196 and Moran v McMahon (1985) 3 NSWLR 700 at 717– 723). However, the judgment is a global award to compensate for all the detriments suffered and it is made only once by the payment of one lump sum. Thus, although an assessing judge may allocate particular sums to particular heads of detriment and express them in his reasons, the judgment does not constitute a series of awards under particular heads, nor does it constitute a mere aggregation of the sums separately allocated (see Gamser [Gamser v The Nominal Defendant (1977) 136 CLR 145] per Stephen J. at 149–150 with whom Gibbs J. agreed at 148 and Paul v Rendell (1981) 55 ALJR 371 (P.C.) at 376–377). It is the allocation of particular sums which discloses the process of reasoning which led to the exercise of judicial discretion which itself is given effect to in the final award in the form of a single lump sum (Wilson v Peisley (1975) 50 ALJR 207 at 214 per Mason J. with whom Gibbs J. agreed; Gamser per Gibbs J. at 148 and Stephen J. at 149–150; Sharman at 572 per Gibbs and Stephen JJ. with whom Jacobs J. agreed as to the approach of an appellate court; Dessent v The Commonwealth (1977) 51 ALJR 482 at 486–487 per Mason and Aickin JJ.) What is appealed against is the total sum awarded ie the discretionary judgment as reflected in the lump sum award. Whether the appeal is successful depends upon the answer to one ultimate question. That question is whether the appellant has demonstrated error which has led to an assessment which is outside the limits of what a sound discretionary judgment could reasonably adopt.

15.152 In Queensland, proceedings based on claims for personal injury damages are decided by a court sitting without a jury: Civil Liability Act 2003 (Qld) s 73. In all other Australian jurisdictions jury trials are permitted. [page 422] Where a judge is sitting alone, the verdict must be so excessive or inadequate as to be beyond reasonable discretionary judgment: Miller v Jennings (1954) 92 CLR 190. An appeal court may have less reservations in

upsetting the verdict of a judge sitting alone than a jury verdict (Sharman v Evans (1977) 138 CLR 563; 13 ALR 57; Hodges v Frost (1984) 53 ALR 373), but it must be shown that the judge acted on an ‘error of principle or misapprehension of the facts’ or that the judge made ‘a “wholly erroneous estimate” of the damages suffered’: Sutherland Shire Council v Major [2015] NSWCA 243 at [40], citing Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 369 per Gibbs CJ. A jury’s verdict will only be upset on appeal if the appellate court comes to a positive conclusion that the verdict was beyond the bounds of a reasonable assessment, either because it was too small or too excessive: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649. In Amaca Pty Ltd v King (2011) 35 VR 280, the appellant argued on appeal that the jury’s award of $730,000 for pain and suffering and loss of amenities was so high that no reasonable jury could have arrived at it. Evidence was given of other awards for pain and suffering and loss of amenities for the victims of mesothelioma, demonstrating that it was significantly higher than any other award. The Court of Appeal held that the award should not be disturbed: … over the last 10–20 years, awards of damages have increased significantly; not just in personal injuries cases, but also in other areas of litigation: at [180]. … Given the considerations to which we have referred, and bearing in mind that judgments about damages are not to be overborne by what other minds have judged right and proper for other situations, (Plantet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 125) we are not persuaded that the sum of $730,000 for pain and suffering and loss of enjoyment of life which the jury awarded in this case is beyond what a reasonable jury properly instructed and with all due attention to the evidence could arrive at: at [184].

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 11.

H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, LexisNexis Butterworths, Sydney, 2002. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 8. A Mason, ‘The Recovery and Calculation of Economic Loss’ in N J Mullany (ed), Torts in the Nineties, LBC Information Services, Sydney, 1997. A Phang and P W Lee, ‘Restitutionary and Exemplary Damages Revisited’ (2003) 19 JCL 1. N Witzleb and R Carroll, ‘The Role of Vindication in Torts Damages’ (2009) 17 TLJ 16.

1.

See A Phang and P W Lee, ‘Restitutionary and Exemplary Damages Revisited’ (2003) 19 JCL 1.

2.

See N Witzleb and R Carroll, ‘The Role of Vindication in Torts Damages’ (2009) 17 TLJ 16 at 22.

3.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

4.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at at [13.65].

5.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

[page 423]

Chapter 16 Wrongful Death 1

Introduction

16.1 Under the common law, the death of a victim of a tort did not give rise to compensation to the family of the deceased (Baker v Bolton (1808) 1 Camp 493; 170 ER 1033) nor could a cause of action survive death. If the plaintiff or defendant died, the death extinguished any right of action — the Latin maxim being action personalis moritur cum persona. Therefore, a cause of action in tort could not vest in the estate of the deceased for the benefit of the estate. The relatives had a limited right of action where the death arose from breach of contract: Jackson v Watson & Sons [1909] 2 KB 193. In Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608, the High Court confirmed that the rule in Baker v Bolton remained as part of the Australian common law. 16.2 Legislation now provides for compensation in these situations. If a person dies from a tortious act of another, their estate may recover the losses suffered (see 16.51) and the dependants of the deceased may seek compensation: see 16.3. As it is common for the beneficiaries of the deceased’s estate to also be dependants of the deceased, the legislation specifies which damages may and may not be recovered to ensure there is no overlap between the two actions as they are two separate causes of action: WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420 at [34] and [38].

2

Compensation to Relatives

16.3 Following the rapid increase in industrial and railway fatalities in the middle of the 19th century, the Fatal Accidents Act 1848 (UK) (Lord Campbell’s Act), was enacted to provide for compensation to a limited class of persons for the death of a relative by a tortious act. Similar legislation was adopted in Australia, the current legislation being: Civil Law (Wrongs) Act 2002 (ACT) s 24; Compensation to Relatives Act 1897 (NSW) s 3(1); Compensation (Fatal Injuries) Act 1974 (NT) s 7; Civil Proceedings Act 2011 (Qld) s 64; Civil Liability Act 1936 (SA) s 23; Fatal Accidents Act 1934 (Tas) s 4; [page 424] Wrongs Act 1958 (Vic) s 16; and Fatal Accidents Act 1959 (WA) s 4. An illustration of the common Australian provision is provided by s 4 of the Fatal Accidents Act 1959 (WA), although the terms differ under various enactments: Where the death of a person is caused by a wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a crime.

16.4 The words ‘wrongful act neglect or default’ used in the legislation are not limited to torts and extend to breaches of contract: Woolworths Ltd v

Crotty (1942) 66 CLR 603 (breach of implied term of contract that faulty light bulb was reasonably fit for its purpose). ‘Neglect’ would include negligence and ‘default’ means not doing what is reasonable in the circumstances where some duty exists: Re Young and Harston’s Contract (1885) 31 Ch D 168. 16.5 In Queensland, the provision has been re-enacted in the Civil Proceedings Act 2011 and rephrased in more modern language: 64 Liability for a death (1) This section applies if— (a) a death is caused by a wrongful act or omission, whether or not an offence; and (b) the act or omission would, if death had not resulted, have entitled the deceased person to recover damages in a proceeding for personal injury. (2) The person who would have been liable if the death had not resulted is liable for damages despite the death and whether or not the death was caused by circumstances that were an offence. (3) In a proceeding under this part, a court may award to the members of the deceased person’s family the damages it considers to be proportional to the damage to them resulting from the death.

16.6

To bring an action for the death of another, it must be proven that:

if they had not died, the deceased could have brought an action in relation to their injury and they would have recovered damages; there is a causal link between the defendant’s wrongful conduct and the death; and the claimants are dependants of the deceased as defined by the legislation.

Right of Action 16.7 An action cannot be brought unless the deceased could have brought an action at the time of death: British Electric Railway Co Ltd v Gentile [1914] AC 1034; Nunan v Southern Railway Co [1924] 1 KB 223; Partridge v Chick (1951) 84 CLR 611. The wrongful act, omission, neglect or default need not

be the sole cause of death, but it must provide a right to maintain an action and recover damages had the deceased not died. [page 425] 16.8 if:

The deceased will not have had a right of action or recovered damages

a complete defence would have been available to the defendant had the deceased survived, for example the deceased voluntarily assumed the risk (Williams v Birmingham Battery and Metal Co [1899] 2 QB 338; Murphy v Culhane [1977] 1 QB 94); the relevant time limitation period had expired; the deceased contracted out of the benefit (Birss v R [1923] NZLR 1058; Central Queensland Speleological Society Inc v Central Queensland Cement (No 1) [1989] 2 Qd R 512); the deceased had accepted compensation before their death, thereby satisfying the cause of action through accord and satisfaction (Read v Great Eastern Railway Co (1868) LR 3 QB 555); or the deceased recovered damages for personal injuries prior to death: Brunsden v Humphrey (1884) 14 QBD 141. 16.9 The Northern Territory legislation differs from the other jurisdictions by providing that a payment made in pursuance of a settlement, release or judgment that is within six months of the incident, is no bar to an action by dependants, but is to be taken into account when assessing damages in an action on behalf of the dependants: Compensation (Fatal Injuries) Act 1974 (NT) ss 7(2) and 10(5). 16.10 If procedural requirements have not been complied with at the time of death, this does not prevent an action under the legislation: Harding v

Lithgow Municipal Council (1937) 57 CLR 186 (deceased failing to give required notice of action to council did not prevent dependants from bringing an action). This is because action under the legislation is independent of that which the deceased would have had, had he or she lived: Johnson v Deep Level Gold Mines of Charters Towers Ltd [1903] St R Qd 190.

Causation 16.11 Both the injury and death must have been caused by the defendant. This will extend even to cases where, under normal circumstances, the rules as to remoteness of damage would render it too remote as the compensation to relatives legislation does not apply only to tortious actions. 16.12 In Haber v Walker [1963] VR 339, the plaintiff widow brought an action against the defendant, under the Victorian legislation, for damage suffered by her as a result of the death of her husband, caused by the negligence of the defendant in a motor vehicle accident. The accident caused disfigurement and incapacitating injuries as well as damage to his brain. Subsequently, he suffered from anxiety, depression and aggression. He was seen by psychiatrists and might well have qualified for certification as insane. He eventually committed suicide by hanging himself. The jury found that the accident was caused by the defendant’s negligence and that death was also caused by the accident, although it was not reasonably foreseeable. The trial judge entered judgment for the plaintiff. A majority of the Full Court dismissed an appeal, confirming that the test under the legislation is whether [page 426] the death was ‘caused’ by the defendant’s wrongful act, default or neglect, not that it be reasonably foreseeable.

16.13 However, in Lisle v Brice [2002] 2 Qd R 168, the Queensland Court of Appeal preferred the dissenting judgment of Hudson J in Haber v Walker. In Lisle v Brice, the deceased was injured in a motor vehicle accident caused by the negligence of the appellant. Although the deceased’s injuries were minor, he developed depression within a few weeks of the accident, the condition persisting until he committed suicide by hanging himself 3¼ years later. The respondent’s widow claimed damages for herself and children pursuant to s 17 of the Supreme Court Act 1995 (Qld) (now Civil Proceedings Act 2011 (Qld) s 64). The trial judge found that the deceased’s depression would not have occurred but for the injuries caused by the accident. Finding that the depression was the cause of the suicide, the trial judge allowed the claim for wrongful death. On appeal, it was argued that the principle of remoteness of damage applied to the action and that death as an injury on the facts was not foreseeable. The Queensland Court of Appeal held that a claim under the Queensland legislation could only be maintained if the death was a consequence of the negligence of the defendant which was reasonably foreseeable. However, on the facts before it, the court could find no reason for overturning the findings of the trial judge that the suicide was a consequence of the depression and was foreseeable. 16.14 The egg-shell skull rule applies to wrongful death actions; the fact that the deceased may have been vulnerable to suffering depression is irrelevant when assessing damages: Lisle v Brice [2002] 2 Qd R 168 at 186. 16.15 See also Lyle v Soc (2009) 38 WAR 418, where the court held that there was no causative link between the death of the respondent’s wife and the appellant’s negligent driving. It was stated that the death from an overdose was not the reasonably foreseeable consequence of a minor traffic accident two years previously. Steytler P held (at [42]): … ordinary commonsense and experience would deny that the 1999 accident materially contributed to the accidental taking of a large overdose of analgesics, some 2 years later, by a person who had been using analgesic medication for many years prior to the accident. It also seems to me that the death, through the taking of the overdose by a person who had been a long-

standing user of analgesic medication, was caused solely by the abuse of that medication, in circumstances in which the abuse (as opposed to the taking of the medication) was not directly or indirectly contributed to by the negligence of the appellant.

Dependants 16.16 The legislation specifies who may seek damages and the language varies; for example, the Victorian legislation refers to dependants (Wrongs Act 1958 (Vic) s 17(2)), the Western Australian statute refers to relatives (Fatal Accidents Act 1959 (WA) s 3, Sch 2) and in Queensland the Act refers to members of the deceased’s family: Civil Proceedings Act 2011 (Qld) s 62. Whichever term is used, damages are only awarded if the death of the deceased resulted in loss to that person, that is, a loss of dependency: see 16.20. 16.17 In all jurisdictions, dependant includes the spouse of the deceased. Spouse or equivalent terms are defined to include a de facto spouse, including a same sex spouse: [page 427] Civil Law (Wrongs) Act 2002 (ACT) s 23(a); Legislation Act 2001 (ACT) s 169; Civil Unions Act 2006 (ACT) s 5; Compensation to Relatives Act 1897 (NSW) ss 4(2) and 7(4); Interpretation Act 1987 (NSW) s 21C; Compensation (Fatal Injuries) Act 1974 (NT) s 4(2)(a); Interpretation Act 1978 (NT) s 19A; De Facto Relationships Act 1991 (NT) s 3A(3); Civil Proceedings Act 2011 (Qld) ss 63 and 67(7); Acts Interpretation Act 1954 (Qld) ss 32DA(5) and 36; Civil Liability Act 1936 (SA) s 3; Family Relationships Act 1975 (SA) ss 11 and 11A; Fatal Accidents Act 1934 (Tas) s 3; Relationships Act 2003 (Tas) ss 4-6; Fatal Accidents Act 1959 (WA) s 6(1), Sch 2, cl (h); Interpretation Act 1984 (WA) s 13A(3).

16.18 Dependants may also include a parent and a child of the deceased and in most jurisdictions this extends to persons in loco parentis: Civil Law (Wrongs) Act 2002 (ACT) s 23(c) and (e); Compensation to Relatives Act 1897 (NSW) s 7(1); Compensation (Fatal Injuries) Act 1974 (NT) ss 4(2)(c) and (d); Civil Proceedings Act 2011 (Qld) s 62(b) and (d); Fatal Accidents Act 1959 (WA) s 3(1), Sch 2, cl 1(d) and (e). There is no equivalent in the legislation of South Australia or Tasmania. 16.19 In some jurisdictions, dependants may also include grandchild, brother, sister and step-brother or step-sister of the deceased: see, for example, Compensation to Relatives Act 1897 (NSW) s 7(1); Civil Proceedings Act 2011 (Qld) s 62; Fatal Accidents Act 1959 (WA) Sch 2, cl 1. 16.20 To be entitled to compensation, the dependant must prove not only that they are a dependant as defined by the Act, but also that he or she has suffered pecuniary loss, or has lost the reasonable expectation of a pecuniary advantage, due to the wrongful death of the deceased. As explained by McHugh J in De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 at [91], damages are awarded ‘for the chance that the deceased would have provided the relative with financial support or its equivalent in the future’. Therefore, there must be evidence of dependency upon the deceased, not merely a relationship. For example, in Campbell v Li-Pina (2007) 47 MVR 279, the appellant sought damages for the death of her de facto husband. However, the evidence was that, at the time of death, there was no net pecuniary benefit in the appellant’s favour; in fact, the evidence was that it was the deceased who was dependent upon the appellant. At the time of death, the deceased was setting up a new business. The court held that, on the balance of probabilities, there was no evidence that had the deceased not died the appellant would have received a net pecuniary benefit from the relationship. 16.21

Where the deceased is a child, a claim for compensation by parents

will fail unless the child had made a contribution to the parents’ welfare (pecuniary or services) and was expected to continue such contributions: Taff Vale Railway Co v Jenkins [1913] AC 1. In Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215; [2008] NTCA 2, a wrongful death claim was made by the parents of the deceased. The evidence was that the deceased had lived with his parents, at no cost, in Geneva, Switzerland, and assisted, without pay, in the family patisserie business as a pastry chef. The parents claimed for the loss of the gratuitous services provided by their son as a pastry chef, as well as the bookkeeping and other administrative work he carried out for the business. The Court of Appeal held that the parents had suffered a loss as, although their other son had moved in with them to assist [page 428] in the patisserie, they paid him wages. The evidence was that the deceased would have continued to assist his parents until the business was sold to him upon their retirement. 16.22 It is not necessary for a claimant to actually have been wholly dependent upon the deceased, as long as they can prove a reasonable expectation of benefit. Therefore, the private fortune of the claimant is irrelevant since the primary consideration is dependency: Shiels v Cruikshank [1953] 1 WLR 533; [1953] 1 All ER 874. 16.23 The dependency must have arisen from the familial rather than some other relationship: Burgess v Florence Nightingale Hospital for Gentlewomen [1955] 1 QB 349; Chief Commissioner of Railways and Tramways (NSW) v Boylson (1915) 19 CLR 505; Malyon v Plummer [1964] 1 KB 330; Barnett v Cohen [1921] 2 KB 461; Baker v Dalgleish Steam Shipping Co [1922] 1 KB 361. Therefore, if the deceased and the dependant were also in a commercial relationship, a distinction must be made between benefits

arising from the familial relationship and those from the commercial relationship. See Schimke v Clement (2011) 58 MVR 390.

Executor Brings the Action 16.24 The statutory right of action lies against the party who would have been liable at the suit of the deceased had he or she lived: Nominal Defendant v Taylor (1982) 154 CLR 106; 41 ALR 244. 16.25 Only one action is brought on behalf of the dependants against the defendant, generally in the name of the executor or administrator of the deceased: Compensation to Relatives Act 1897 (NSW) ss 4(1), 5; Compensation (Fatal Injuries) Act 1974 (NT) s 8; Civil Proceedings Act 2011 (Qld) s 65(1), (2); Civil Liability Act 1936 (SA) ss 24, 25(1); Fatal Accidents Act 1934 (Tas) ss 5, 6; Wrongs Act 1958 (Vic) ss 17(1), 20(1); Fatal Accidents Act 1959 (WA) ss 6(1B), 7. There is no similar provision in the Australian Capital Territory. Where the deceased has no executor or administrator or no action is brought within six months of the death, the persons for whose benefit the action would otherwise be brought may themselves be given the right to commence the action: Compensation to Relatives Act 1897 (NSW) s 6B(1); Compensation (Fatal Injuries) Act 1974 (NT) s 13(1); Civil Liability Act 1936 (SA) s 27(1); Fatal Accidents Act 1934 (Tas) s 8(1); Wrongs Act 1958 (Vic) s 18; Fatal Accidents Act 1959 (WA) s 9(1). In Queensland, the proceeding may be brought by the personal representative or by one or more members of the deceased’s family: Civil Proceedings Act 2011 (Qld) s 65(2).

Damages that May be Claimed for Wrongful Death 16.26 The aim of the legislation in respect of wrongful death is to compensate dependants for the loss of the contribution by the deceased for

their support. To be entitled to compensation, the loss must be more than nominal (Pym v Great Northern Railway Co (1862) 2 B & S 759; 121 ER 1254) and not merely speculative: Barnett v Cohen [1921] 2 KB 461. See Schimke v Clement (2011) 58 MVR 390 at [90]–[91]. The loss compensated for may be pecuniary, as in financial assistance or support, or non-pecuniary, as in providing care. See Schimke v Clement (2011) 58 MVR 390 at [90]–[91]. [page 429]

Pecuniary loss 16.27 Compensation for the pecuniary loss is damages representing the financial contribution to the household by the deceased. The pecuniary loss may be actual or prospective: Berry v Humm & Co [1915] 1 KB 627. Loss of income contributed to the support of the dependants and other pecuniary losses stemming from the death are recoverable: Robertson v Robin [1967] SASR 151. Section 66 of the Civil Liability Act 1936 (SA) allows compensation for loss if the deceased and their spouse or domestic partner were jointly engaged in business and the business is impaired or ceases.

Non-pecuniary loss 16.28 A claim for non-pecuniary loss is allowed if the loss is capable of being assessed in monetary terms. In Kepa v Lessbrook Pty Ltd (in liq) [2012] QSC 311 at [40], the court held that the hunting and gathering activities of the deceased which had provided his family with food was a loss of service that could be compensated. 16.29

Damages may be claimed for the loss of services to the extent that

the deceased contributed to services within the household. In McKenna v Avior Pty Ltd [1981] WAR 255 at 257, it was explained. It is well established, also, that only injuries capable of evaluation in monetary terms can found claims for damages under the [Lord Campbell legislation] and the various enactments modelled thereon. The loss, however, need not be a monetary loss: a loss of services capable of being valued in pecuniary terms will suffice as also will the reasonable expectation at time of death of future financial benefits or the reasonable expectation of services in the future capable of evaluation in monetary terms.

In Seymour v British Paints (Australia) Pty Ltd [1967] Qd R 227 at 230, Gibbs J noted: Domestic services do in fact have a pecuniary value which is capable of assessment, and … the deprivation of services is just as much a pecuniary loss as the deprivation of income.

The High Court, in Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161, held that loss of domestic services formerly provided by the deceased had a pecuniary value, capable of assessment, and should be included in a claim under actions under Australian legislation equivalent to Lord Campbell’s Act. In that case, the plaintiffs (a father and his two young children) claimed damages under the Queensland legislation in respect of the death, in a motor vehicle accident, of their wife and mother, who had provided child care and household services. The plaintiff widower had not engaged anyone to perform household services for him and the two children and had no intention of doing so. The decision of the Full Court of the Supreme Court of Queensland not to allow recovery was overruled by the High Court, extending the principle established in Griffiths v Kerkemeyer (1977) 139 CLR 161; 15 ALR 387 to claims by dependants under the wrongful death legislation. In Griffiths v Kerkemeyer, it was held that the plaintiff, who was rendered a quadriplegic as the result of the negligence of the defendant, was entitled to recover, by way of damages, a sum representing the value of nursing and other services gratuitously provided for [page 430]

him in the past and to be provided in the future by his fiancé and members of his family. As Dawson, Toohey and McHugh JJ pointed out in their joint judgment in Nguyen: Griffiths v Kerkemeyer has nothing to say about a claim under Lord Campbell’s Act for damages for the loss of domestic services. As we have said, such a claim is not related to need. A husband claiming for the loss of housekeeping services by reason of the death of his wife may have no need of those services in that he may be able to perform them himself. But if he has suffered the loss he is entitled to recover for it … it does not matter whether he intends to use the damages to replace the services or not: at CLR 264; ALR 175.

Some jurisdictions have imposed requirements upon claims for the gratuitous services that were or would be provided by the deceased: see, for example, Wrongs Act 1958 (Vic) s 19A. 16.30 Solatium In South Australia and the Northern Territory, an amount for the grief and suffering of the dependant caused by the death (solatium) may be recovered: Civil Liability Act 1936 (SA) ss 28 and 29; Compensation (Fatal Injuries) Act 1974 (NT) s 10(3)(f). As the claims under the legislation are based on dependency, the deceased’s own pain and suffering and the nature of the personal injuries prior to death are irrelevant. 16.31 Loss of consortium In the Northern Territory, Queensland and South Australia, a claim may be made for loss of consortium (sharing of companionship, lives, including sexual intercourse (Toohey v Hollier (1955) 92 CLR 618)): Compensation (Fatal Injuries) Act 1974 (NT) s 10(3)(c); Civil Liability Act 2003 (Qld) s 58(1)(a); Civil Liability Act 1936 (SA) s 65. In Victoria and Western Australia, the law as to loss of consortium has not been changed. Claims for loss of consortium have been abolished in the other jurisdictions: Civil Law (Wrongs) Act 2002 (ACT) s 218; Law Reform (Marital Consortium) Act 1984 (NSW) s 3; Civil Liability Act 2002 (Tas) s 28D.

Assessment of Damages for Wrongful Death 16.32 A court must determine the amount of damages that represents the value of the loss to each dependant from the date of death until the date of trial or settlement as well as the anticipated future loss. Events between death and trial must be taken into account, as well as future probable events, for the purposes of assessing dependency.

Relevant factors 16.33 Pecuniary support from deceased In balancing the loss and gain to the claimant resulting from the death of the relative, the deceased’s life expectancy and actual prospective net earning capacity are relevant: Lincoln v Gravil (1954) 94 CLR 430; Matthew v Flood [1938] SASR 312; [1939] SASR 389; (1939) 62 CLR 750; [1940] SASR 48. In Parker v Commonwealth (1965) 112 CLR 295, the deceased’s net wage prior to his death was taken into account as well as his prospects for promotion and what he may have earned if he had reached the top grade of his position within the navy. In Hanlon v Hanlon [2006] TASSC 1, the court considered the deceased’s age, work history, the industry in which he worked and the average retirement age for the type of work he was engaged in. [page 431] In French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214, the deceased was a painter and decorator. The wife claimed that he was earning in addition to his wages substantial undisclosed amounts from cash jobs. The court held that as there was no evidence of these cash amounts, the deceased’s earnings and prospective earning capacity were based upon the records, including the deceased’s income tax returns from the previous years. 16.34

Period and extent of dependency The likely period and the extent

of dependency are also relevant: Scholefield v Bates [1958] SASR 317. In assessing the period and extent of the dependency, the court looks beyond just the age of the dependants. In De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 at [14] it was stated: The court assesses what benefits the deceased would have brought to the family, in the form of either income or the provision of services. The court determines the share of that benefit that would have been enjoyed by a relative during the deceased’s lifetime. And the court determines the period for which a relative could reasonably have expected to receive the benefit. For example, a surviving spouse may say that it was reasonable to expect to receive a benefit measured as a share of the deceased’s income until the deceased’s expected age of retirement. A child of the deceased may reasonably expect to receive such a benefit until the child reaches an age of expected financial independence.

In Hanlon v Hanlon [2006] TASSC 1, the claim for damages was made by the widow and two children of young age. As to the future dependency of the widow, the court was provided with evidence of the stability of the marriage as well as her work history and experience. In respect of the children, their age, their ability at school and evidence of a lack of tertiary education in the family history were relevant.

Indemnity principle 16.35 In assessing the damages for each dependant, the usual principles of compensatory damages apply: see Chapter 15. To ensure that a dependant is not over-compensated (the indemnity principle), certain gains received by dependants upon the death of the deceased must be taken into account and set off against the damages awarded. As explained in Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215; [2008] NTCA 2 at [26]: The principles applicable to such a claim [wrongful death] are not controversial. They were established by the High Court in Horton v Byrne (1956) 30 ALJ 583 and repeated in Nguyen v Nguyen (1990) 169 CLR 245. The measure of such damages is to reflect the balance of the loss, reduced to terms of money, which the deceased’s relatives incur in consequence of his death after deducting the pecuniary gains which accrue to them from that event. The damages are confined to compensation for the loss of material benefits or of the reasonable prospect of such benefits occasioned by the death. If, by reason of the death, the claimant is better off than before the death there is no cause of action. It is the net loss, on a balance of losses and gains, that may be recovered as damages.

16.36 The general principle is that damages should be calculated by reference to a reasonable expectation of benefit or support had the deceased lived, with reference to any gains and losses of the dependant: Parker v Commonwealth (1965) 112 CLR 295; Nance v British Columbia Electric Railway Co Ltd [1951] AC 601; [1951] 2 All ER 448; Taylor v O’Connor [1971] AC 115. Therefore, a court must take into account the accelerated benefit [page 432] the dependants are obtaining by the victim’s premature death. As stated in Public Trustee v Zoanetti (1945) 70 CLR 266 at 277, account must be taken of ‘the pecuniary benefits, arising on [the] death, to which the claimant had a reasonable expectation, whether as a right or otherwise’. 16.37 As the dependants are receiving damages based upon possible future events, a discount is made to take into contingencies: De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130; Hanlon v Hanlon [2006] TASSC 1: see Chapter 15. A general allowance is made for the vicissitudes of life and specific likely events are also taken into account. In De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130 at [15], the example was given that the dependant may suffer an existing illness, which means there is a likelihood they will have a premature death. 16.38 New relationships If a new relationship (marriage or de facto relationship) has been formed by the spouse, the court will take this into consideration and discount the award to take into account the benefits flowing from that relationship: Moore v Lamb (1994) Aust Torts Reports ¶81295. In Campbell v Li-Pina (2007) 47 MVR 279, the court held that there must be some existing financial benefit arising from the relationship, before a court could take it into account when assessing the damages.

Previously, a widow’s prospects for remarrying had to be considered as an individual item in the assessment of dependency: Williams v Usher (1955) 94 CLR 450; Jones v Schiffmann (1971) 124 CLR 303. In Jones v Schiffmann, a majority of the High Court made a number of observations on the extent to which damages recoverable by a widow in a Lord Campbell’s Act claim should be affected by remarriage prospects. Relevant factors included age, appearance, inclination, experience, obligations to children and parents, and the value of freedom to remarry: per Windeyer J at 306. However, in De Sales v Ingrilli (2002) 212 CLR 338; 193 ALR 130, the High Court reconsidered this archaic principle and a majority of 4:3 held that there should be no separate deduction or an increased reduction for vicissitudes of life for the prospects of remarriage or re-partnering. Therefore, the surviving spouse’s prospects of entering into a new relationship are treated as one of the usual vicissitudes. In Queensland, Civil Proceedings Act 2011 (Qld) s 67 provides that the possibility that a surviving spouse, including a de facto spouse, may form a new relationship should have no effect on the assessment of damages for wrongful death. However, if the surviving spouse has entered into a new relationship, this should be taken into account, but it should not be assumed that the relationship will continue or that the same benefits will be received by the surviving spouse as were in the previous relationship: s 67(6). In relation to a claim by a child of the deceased, the fact that the relationship between the surviving parent and the deceased had ended, or was unlikely to have continued but for the death, is not relevant to the assessment of damages: s 68. In Victoria and the Northern Territory, the legislation provides that there is no reduction for the prospect of or an actual new relationship: Wrongs Act 1958 (Vic) s 19(2)–(5); Compensation (Fatal Injuries) Act 1974 (NT) s 10(4) (h). 16.39

Deceased’s estate Benefits received by the claimant from the

deceased’s estate will be set off unless these involve property enjoyed during the deceased’s lifetime which [page 433] continue to be enjoyed by the relatives after death: Darroch v Dennis [1954] VLR 282; Peipman v Turner [1961] NSWR 252; McCullagh v Lawrence [1989] 1 Qd R 163. 16.40 The courts have held that the matrimonial home should not lead to a deduction as the surviving partner merely continues to enjoy what they were already enjoying as a partner: Zordan v Metropolitan (Perth) Passenger Transport Trust [1963] ALR 513 at 516. Some legislation excludes the matrimonial home and its contents from consideration: see, for example, Civil Law (Wrongs) Act 2002 (ACT) s 26(e). 16.41 However, jointly owned assets may be required to be set off. In Black v Walden (2008) Aust Torts Reports ¶81-950, the court had to consider the family business arrangements after the death of the respondent’s wife. In that case, the respondent, the deceased and eldest son ran a dairy farm which was operated by the respondent and the deceased as a partnership. The couple also owned a joinery business. The deceased worked part-time in both businesses. The Court of Appeal disagreed with the trial judge’s decision that the respondent enjoyed no additional benefit in the assets than he did before his wife’s death. The court took into account the control the respondent had over the assets of which he had no expectation of inheriting and the fact that he now had the freedom to deal with the assets solely. 16.42 Specific payments The legislation sets out specific amounts that do not affect the award of damages. For example, s 70(1) of the Civil Proceedings Act 2011 (Qld) provides:

In assessing damages in relation to liability under this part, the following must not be taken into account to reduce the damages — (a) an amount paid or payable on the death of the deceased person under a contract of insurance; (b) an amount paid or payable on the deceased’s death under a contract, other than a contract of insurance, made with a friendly society or other benefit society, or association or trade union; (c) an amount paid or payable on the deceased’s death out of a superannuation, provident or similar fund; (d) an amount paid or payable on the deceased’s death by way of pension, benefit or allowance under a law of — (i)

the Commonwealth; or

(ii) any State; or (iii) another country; (e) a gratuity in whatever form received or receivable on the deceased’s death.

See also Civil Law (Wrongs) Act 2002 (ACT) s 26; Compensation to Relatives Act 1897 (NSW) s 3(3); Compensation (Fatal Injuries) Act 1974 (NT) s 10(4); Civil Liability Act 1936 (SA) s 24(2aa); Fatal Accidents Act 1934 (Tas) s 10(1); Wrongs Act 1958 (Vic) s 19(1); Fatal Accidents Act 1959 (WA) s 5(2). 16.43 It may be possible that a dependant has a cause of action against another party in respect of the death. A court may look at the damages the dependant is claiming in that cause of action. In Thornton v Lessbrook Pty Ltd (t/as Transair) [2010] QSC 308, the claimant was the de facto and fiancé of the deceased who had died in an aircraft accident. In assessing the [page 434] dependency claim the court noted that the plaintiff had commenced an action in the United States with others against other defendants in relation to the aircraft accident. As the claim was damages for distress and exemplary damages, the court observed (at [142]) that:

In accordance with the principles discussed in Public Trustee v Zoanetti it is inappropriate to bring into account in an action such as the present claims for distress or consolation, being heads of damages that are not recoverable in the present proceeding.

Other factors affecting assessment of damages 16.44 Contributory negligence Evidence of contributory negligence on the part of the deceased may reduce the amount of damages recoverable by the relatives under the statute: Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 17(2); Compensation (Fatal Injuries) Act 1974 (NT) s 11(1); Law Reform Act 1995 (Qld) s 10(5); Wrongs Act 1954 (Tas) s 4(4); Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 4(2)(a). In New South Wales, a court may reduce the damages, but is not compelled to do so: Civil Liability Act 2002 (NSW) s 5T; Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 13. In South Australia, a court is to ‘have regard to any contributory negligence on the part of the deceased person’: Civil Liability Act 1936 (SA) s 45. In the Australian Capital Territory and Victoria, the legislation does not allow the damages to be reduced for contributory negligence on the part of the deceased: Civil Law (Wrongs) Act 2002 (ACT) s 27; Wrongs Act 1958 (Vic) s 26(4). In Preti v Sahara Tours Pty Ltd (2008) 22 NTLR 215; [2008] NTCA 2, the damages for wrongful death were reduced to take into account the deceased’s contributory negligence. The deceased was a tourist on an adventure tour and died when another member of the tour group swung on a rope over a waterhole, causing the deceased to dive into the water off the narrow ledge he was standing on to get out of the way. As he dived, he struck his head on a submerged object. The Court of Appeal held that the trial judge was correct in finding that the deceased had been contributorily negligent. Damages were reduced by 20 per cent to take the deceased’s own lack of care into account. See also French v QBE Insurance (Australia) Ltd (2011) 58 MVR 214, where the court held that the damages were not to be reduced. The deceased was killed when hit by an unknown motor vehicle after being left at the wrong address by the taxi driver. At the time the deceased was intoxicated. For

failing to safely take the deceased home, the taxi driver was in breach of an express term of the contract. This was held not to be a duty of care that was ‘concurrent and coextensive with a duty of care in tort’ (definition of ‘wrong’ in Law Reform Act 1995 (Qld) s 5) and therefore the damages in the dependency claim were not reduced. However, in Schimke v Clement (2011) 58 MVR 340, the damages assessed under the dependency claim were reduced by 65 per cent to correspond with the court’s finding of the deceased’s contributory negligence. For a discussion on apportionment for contributory negligence, see Chapter 13. 16.45 Statutory limitations Damages claimed for dependency may be affected by the limitations contained in the civil liability legislation. As such claims must consider the earnings of the deceased, the restrictions placed upon loss of earnings may be relevant: [page 435] see 15.81. In some jurisdictions, it is clear that the restrictions apply, for example in Western Australia the relevant provision refers to the Fatal Accidents Act 1959 and therefore a court must disregard the deceased’s earnings above three times the average weekly earnings: Civil Liability Act 2002 (WA) s 11(1). See also Civil Law (Wrongs) Act 2002 (ACT) s 98 (refers to a ‘claim’, which is defined in s 92 to include a dependency claim); Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 20 (refers to ‘an injured person’ and s 5 provides that the Act applies in addition to the Compensation (Fatal Injuries) Act 1974 (NT)); Civil Liability Act 2002 (Qld) s 54 (refers to a dependency claim); Civil Liability Act 1936 (SA) s 54(3) (expressly applies to claims brought for the benefit of dependants). In the other jurisdictions, it is not so clear whether the restrictions apply

and will depend upon interpretation of the relevant provision: see Civil Liability Act 2002 (NSW) s 12 (refers to ‘the claimant’s gross weekly earnings’); Civil Liability 2002 (Tas) s 26 (refers to ‘a person’ entitled to damages under the Fatal Accidents Act 1934 (Tas) and that a court is to disregard the person’s earnings above the limit); Wrongs Act 1958 (Vic) s 28F (refers to ‘the claimant’s gross weekly earnings’). The New South Wales provision was considered by the High Court in Taylor v Owners Strata Plan No 11564 (2014) 253 CLR 531; 306 ALR 547. The appellant’s husband was killed and she brought a dependency claim. The evidence established that the deceased, a private land surveyor, would have earnt significant income. Section 12(2) of the Civil Liability Act 2002 (NSW) provides that a court must disregard any amount ‘by which the claimant’s gross weekly earnings would (but for the injury or death) have exceeded an amount that is 3 times the amount of average weekly earnings at the date of the award’. The New South Wales Court of Appeal agreed with the trial judge’s decision that the restriction on awards for loss of earning capacity applied to the appellant’s claim and therefore the deceased’s earnings above the limit could not be taken into account. This was based upon the reasoning that it was intended to apply and so in order to give effect to the intention, the section should be read as if it referred to ‘the claimant’s or the deceased person’s’ gross weekly earnings. Before the High Court, the appellant argued that s 12 had not been given its ordinary grammatical meaning and as the deceased was not ‘the claimant’ the provision did not apply. A majority of the High Court held that although a court was to have regard to the intent of the Parliament, it could not introduce words that would expand the operation of the provision: at [38] citing R v Young (1999) 46 NSWLR 681; Jones v Wrotham Park Settled Estates [1980] AC 74; [1979] 2 WLR 132; 1 All ER 286. It was held that: On no view can the deceased be “the claimant”. To read s 12, in the case of an award under s 12(1)(c), as applying the s 12(2) limitation to the deceased’s gross weekly earnings cannot be

reconciled with the language that the parliament has enacted. The phrase “the claimant’s gross weekly earnings” is incapable of identifying the gross weekly earnings of the deceased: at [41].

16.46 If the death arose from a motor vehicle accident, statutory maximums may also be imposed by the relevant legislation: see, for example, Transport Accident Act 1986 (Vic) s 93(9) which imposes a maximum of $500,000 for claims under Pt III of the Wrongs Act 1958 (Vic). In the Northern Territory, there is no claim under the common law or legislation for personal injury or death arising from a motor vehicle accident in the Territory: Motor Accidents (Compensation) Act 1979 (NT) s 5(1). [page 436]

Interest 16.47 In a fatal accident claim, pre- and post-trial items must be distinguished so as to allow interest to be awarded upon the pre-trial losses: State Government Insurance Office (Qld) v Biemann (1983) 154 CLR 539; 49 ALR 247; Wright v West Australian Trustee & Agency Co Ltd [1987] VR 771.

Limitation Period 16.48 The limitation periods vary between the jurisdictions. In the Australian Capital Territory, the right to bring an action expires upon either the expiration of six years from the wrongful act or three years from the date of death, whichever is the later: Limitation Act 1985 (ACT) s 16. In the Northern Territory, Queensland and Tasmania, it is three years from the date the action arose: Limitation Act 1981 (NT) s 17; Limitation of Actions Act 1974 (Qld) s 11; Limitation Act 1974 (Tas) s 5(1) and (2). In Victoria, the action for wrongful death must be brought within six years from the date of death: Wrongs Act 1958 (Vic) s 20(1). In New South Wales, South Australia and Western Australia, the limitation period is three years from the date of

death: Limitation Action Act 1969 (NSW) s 19(1)(b); Civil Liability Act 1936 (SA) s 25; Limitation Act 2005 (WA) s 13(2). 16.49 In Hall v WorkCover Queensland [2015] 2 Qd R 88, the appellant commenced a dependency claim and a claim on behalf of the deceased’s estate 16 years after the deceased’s death from mesothelioma after exposure to asbestos. Therefore, at the date of death, the time limitation as imposed by s 11(1) of the Limitation of Actions Act 1974 (Qld) (three years from cause of action) had expired. However, similar to other Australian jurisdictions, subsection (2) provides that ‘a right of action relating to personal injury resulting from a dust-related condition is not subject to a limitation period under an Act or law or rule of law’: see 14.5. The respondent argued that this subsection did not apply to dependency claims. The court held that s 11(2) of the Limitation of Actions Act 1974 (Qld) did include dependency claims, and referred to with approval Taylor v Owners Strata Plan No 11564 (2014) 253 CLR 531; 306 ALR 547: see 16.45. Muir JA held that the lack of an explicit reference to death in subsection (2) did not restrict its application due to the inclusive definition of ‘personal injury’ in s 5 of the Act. Further, there was a distinct difference in that subsection (2) used the phrase ‘right of action relating to personal injury’ in comparison to the phrase in subsection (1), ‘an action for damages for negligence…’. It was held that focusing on the words led to the conclusion that subsection (2) applied to dependency claims and applied a ‘blanket exemption from all limitation provisions for any right of action “relating to” personal injury resulting from a dust related condition’: at [50]. 16.50 All jurisdictions provide for extensions of the period in the legislation: see Chapter 14.

3

Survival of Causes of Action

16.51 At common law, a cause of action in tort did not survive the death of either the plaintiff or the defendant. Legislation has provided that causes of action subsisting against, or vested in, a person shall survive against, or as the case may be, for the benefit of the estate. [page 437] The current Australian legislation is: Civil Law (Wrongs) Act 2002 (ACT) Pt 2.4; Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2; Law Reform (Miscellaneous Provisions) Act 1956 (NT) Pt II; Succession Act 1981 (Qld) s 66; Survival of Causes of Action Act 1940 (SA) s 2; Administration and Probate Act 1935 (Tas) s 27; Administration and Probate Act 1958 (Vic) s 29; and Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4. As this chapter is concerned with compensation, the survival of the victim’s action will be addressed, not the survival of an action against a deceased defendant’s estate. 16.52 Unlike a claim for wrongful death, where the damages awarded go to the deceased’s dependants, the damages awarded under the survival of causes of action legislation go to the deceased’s estate. Certain personal actions, namely defamation, are excluded by the legislation.

Damages 16.53

Damages are awarded to compensate the estate of the deceased for

the pecuniary losses arising due to their injury from the time of the injury until death. Therefore, compensation is awarded for any lost earning capacity, medical, hospital and related expenses incurred prior to death, including gratuitous services. The assessment of these damages is subject to any statutory limitations, for example the threshold requirements for gratuitous services and the maximum amounts allowed for loss of earning capacity: see Chapter 15. 16.54 As the damages are to compensate the estate for pecuniary losses, the assessment excludes any future loss of earning capacity of the deceased and non-pecuniary loss, such as pain and suffering. This prevents any double compensation should there be a claim under the Lord Campbell’s Act by any dependants. An example of the legislation is s 3(1)(a) of the Survival of Causes of Action Act 1940 (SA) which provides: Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person (a) shall not include damages for (i)

pain or suffering;

(ii) bodily or mental harm; (iii) the curtailment of expectation of life; (iv) the loss of capacity to earn, or the loss of probable future earnings, in respect of the period for which the deceased person would have survived but for the act or omission that gave rise to the cause of action.

See also Civil Law (Wrongs) Act 2002 (ACT) s 16(3)(b); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)(a)(ii) and 2(2)(d); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6(1)(c)(ii) and (iii); Succession Act 1981 (Qld) s 66(2)(a) and 66(2)(d)(ii); [page 438] Administration and Probate Act 1935 (Tas) s 27(3)(c)(ii) and (iii);

Administration and Probate Act 1958 (Vic) s 29(2)(c)(ii) and (iii); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2)(d) and (e). 16.55 However, if the deceased’s action was in respect of a dust disease, for example exposure to asbestos, the legislation provides that non-pecuniary damages may be claimed if the proceedings were commenced prior to the death: Civil Law (Wrongs) Act 2002 (ACT) s 16(4); Dust Diseases Tribunal Act 1989 (NSW) s 12B; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6(2); Succession Act 1981 (Qld) s 66(2A) and 66(2B) (does not include conditions resulting from smoking or use of tobacco products); Survival of Causes of Action Act 1940 (SA) s 3(2) and 3(3); Administration and Probate Act 1935 (Tas) s 27(3A) and 27(3B); Administration and Probate Act 1958 (Vic) s 29(2A); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2a). 16.56 A court may not award exemplary damages: Civil Law (Wrongs) Act 2002 (ACT) s 16(3)(a); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2)(a)(i); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6(1)(a); Succession Act 1981 (Qld) s 66(2)(b); Survival of Causes of Action Act 1940 (SA) s 3(1)(b); Administration and Probate Act 1935 (Tas) s 27(3) (a); Administration and Probate Act 1958 (Vic) s 29(2)(a); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2)(a). 16.57 The legislation requires that the damages be calculated without reference to any loss or gain to the estate. This means that no set-off is made for any insurance payments or any other collateral benefits upon death. Also, any costs associated with the administration of the estate cannot be awarded, except for the cost of the funeral: Civil Law (Wrongs) Act 2002 (ACT) s 16(3) (a) and (5); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2) (c); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 6(1)(c)(i); Succession Act 1981 (Qld) s 66(2)(d)(i); Survival of Causes of Actions Act 1940 (SA) s 3(1)(d); Administration and Probate Act 1935 (Tas) s 27(3)(c)(i);

Administration and Probate Act 1958 (Vic) s 29(2)(c)(i); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2)(c).

Limitation Period 16.58 There is no provision in the limitation legislation as to the applicable period of limitation for the survival of actions. Therefore, the usual limitation that would have applied had the deceased survived will apply, which is generally three years from the date the cause of action arose: see Chapter 14.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 11. H Luntz, Assessment of Damages for Personal Injury and Death, 4th ed, LexisNexis Butterworths, Sydney, 2002, Ch 9. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 9.

[page 439]

Chapter 17 Service and Family Relations 1

Introduction

17.1 In a number of areas, the law of torts recognises a right to recover damages by persons who suffer some consequential economic loss without any physical damage to themselves. Instead, their loss is the result of physical injury to another with whom the law recognises they have a special relationship, based upon the proprietorial interest they have in the physical wellbeing of the victim. The relationships which give rise to such exceptional rights of action against wrongdoers who cause personal injury to another are those between: an employer and employee; spouses; and parents and children. Another similar exceptional area is compensation to relatives in the case of fatal injury, which is discussed in Chapter 16.

2

Loss of an Employee’s Services

17.2 The early common law recognised a number of actions on the case which were designed to compensate an employer who was deprived of the services of an employee by a tort committed by a third party against the employee. These actions reflect the fact that, in earlier times, the employer, as

master, was regarded as having a proprietorial interest in the servant– employee. Two such actions are now virtually obsolete: enticement (procuring a servant to leave a master), which now falls within the more general tort of interference with contractual relations (see 24.38); and harbouring a servant in circumstances where the servant would have returned but for the assistance offered by the defendant harbourer: Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 QB 275. [page 440] More important is the action per quod servitium amisit (by reason of which the services were lost). This action is available to an employer for the loss of an employee’s services caused by an act of a third party which is prima facie a tort against the servant: Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392. In Australia, the action is available provided an employer and employee relationship of the ordinary kind is made out (Commissioner for Railways (NSW) v Scott) and is not restricted to domestic servants. In Victoria, the action is not available for injuries due to a motor vehicle accident: Transport Accidents Act 1986 (Vic) s 93A. The Northern Territory has abolished claims in respect of motor vehicle and workplace accidents: Motor Accidents (Compensation) Act 1979 (NT) s 5(1); Work Health Act (NT) s 52. The action has been abolished in New Zealand and the United Kingdom. 17.3 In Commissioner for Railways (NSW) v Scott, the Commissioner of Railways (the Commissioner) employed an engine driver named Rogers. The defendant, Scott, was riding a motorcycle and attempted to cross a level crossing in front of a locomotive, driven by Rogers. The efforts of Rogers

contributed to the accident being averted, but Rogers was thrown from the locomotive and, subsequently, suffered a nervous breakdown. Under the relevant railways legislation, Rogers was entitled to receive, while absent from work, not less than his salary and the cost of medical treatment. The Commissioner sued Scott for the amount which had to be paid to Rogers. Since Scott was a servant of the Commissioner, and because the relationship giving rise to a per quod servitium amisit action is not limited to domestic or menial servants, the Commissioner succeeded. Dixon CJ traced the action back to medieval times and confirmed: Once a consideration of medieval times is reached, not only the history of the remedy, but the known facts as to the course of social changes would almost seem to make it evident that the remedy could not be confined to the loss of a domestic servant: at 400.

17.4 A director, as such, is not a servant of a company but managing directors, or directors performing functions akin to those of employees, are within the scope of the action: Argent Pty Ltd v Huxley [1971] Qd R 331 affirmed (1972) 46 ALJR 432. As Glass and Samuels JJA said in Marinovski v Zutti Pty Ltd [1984] 2 NSWLR 571 at 587: We agree with the trial judge that the plaintiff company was entitled to sue for damages for the loss of the services of its employee [Panizutti] notwithstanding that his services were not of a menial nature, Commissioner for Railways (NSW) v Scott (1959) 102 CLR 392, and that Panizutti was an employee of the company for the purposes of an action per quod notwithstanding that he was its de facto managing director: Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432; Lee v Lee’s Air Farming Ltd [1961] AC 12.

Service personnel in the army, navy or air force are not employees of the Crown (Commonwealth v Quince (1944) 68 CLR 227), nor are police personnel servants of the Crown: Attorney-General (NSW) v Perpetual Trustee Co Ltd [1955] AC 457. An action is available only in respect of injuries to an employee and not in a case where the services are terminated as a result of the employee’s death: Attorney-General (NSW) v Perpetual Trustee Co Ltd. 17.5

No action lies for the death of an employee: Admiralty Commissioners

v Owners of SS Amerika [1917] AC 38. In Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608, it was [page 441] argued that the per quod action had been absorbed into the tort of negligence, and that as a tort, modern social and economic relations no longer justified its existence. The court held that the per quod action continued to be a separate and distinct tort (at [37]), and that the tort had evolved from protecting a master’s property in a servant to protecting the contractual interest: at [40]. Therefore, the employer could not recover in respect of the loss of services of two of its deceased employees, but could be compensated in respect of its three injured employees. 17.6 An employer has no right of action per quod against an employee as a result of the employee negligently injuring herself or himself in such a way as to deprive the employer of the employee’s service: Lawrence v Slatcher [1968] VR 337.

Damages 17.7 Damages recoverable by a master in a per quod action in Australia are restricted to the pecuniary loss sustained as a result of the loss of services and other necessary expenditure resulting from injury to the employee, such as the payment of overtime rates to existing staff or the cost of advertising for and training a replacement: Sydney City Council v Bosnich [1968] 3 NSWR 725; Attorney-General v Wilson & Horton Ltd [1973] 2 NZLR 238 at 256. In Barclay v Penberthy (2012) 246 CLR 258; 291 ALR 608, the loss was referred to as ‘the market value of the services, which will generally be calculated by the price of a substitute, less the wages the master is no longer required to pay

to the injured servant’ (at [57] per Gleeson CJ, Gummow, Hayne, Crennan and Bell JJ) and ‘damages be limited to the cost of substitute labour’: at [164] per Kiefel J. 17.8 As the tort is protecting against the interference with the services of the employee, the damages do not include all of the consequences that follow from that interference: Attorney-General v Wilson & Horton Ltd [1973] 2 NZLR 238. Damages are not calculated by reference to a loss of profits: Mercantile Mutual Insurance Co Ltd v Argent Pty Ltd (1972) 46 ALJR 432; Barclay v Penberthy; Petchell v Du Pradal [2015] QCA 132 at [35]. Therefore, the payments by an employer required by statute, an industrial award or contract cannot be claimed as ‘these outgoings should be ascribed to that anterior obligation of the employer. These are not consequences which flow merely from the injury to the servant’: Barclay v Penberthy at [59]. For an example of the assessment of damages in a per quod action, see Tippett v Fraser (1999) 74 SASR 522. 17.9 In some jurisdictions, the employee’s own contributory negligence acts to reduce the employer’s damages: Civil Law (Wrongs) Act 2002 (ACT) s 104; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 18; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7(3)(a). Various other legislation also modifies the right to damages under a per quod action: see, for example, Motor Accidents Compensation Act 1999 (NSW) s 142 (no damages for loss of services in respect of a motor vehicle accident); Civil Liability Act 2002 (Qld) s 58 (no damages for loss unless employee died or the general damages of the injured employee meet the prescribed amount, and damages cannot exceed three times average weekly earnings). [page 442]

3

Interference with Domestic Relations Between Husband and Wife

Loss of Consortium and Servitium 17.10 The action of per quod consortium et servitium amisit allowed a husband of an injured plaintiff wife to recover damages from the defendant for the loss of his wife’s consortium and servitium: Curran v Young (1965) 112 CLR 99; Best v Samuel Fox & Co Ltd [1952] AC 716; Toohey v Hollier (1955) 92 CLR 618; Kealley v Jones [1979] 1 NSWLR 723. 17.11 A wife had no similar action at common law against one who tortiously injured her husband so as to deprive her of his consortium (Best v Samuel Fox & Co Ltd), although a wife might be able to claim for loss of consortium, resulting from her physical injuries, in her own personal action against the tortfeasor who caused the injuries: Lampert v Eastern National Omnibus Co Ltd [1954] 1 WLR 1047; Hird v Gibson [1974] Qd R 14. The particular discriminatory effect of the rule has been rightly criticised.1 Of the two possible responses to the rule, only the Queensland and South Australian legislatures have taken the step of extending the right of action to wives. In Queensland, s 13 of the Law Reform Act 1995 gives a wife the same right to sue for loss of consortium as was previously available to a husband at common law, although s 58 of the Civil Liability Act 2003 (Qld) places restrictions on the amount of damages recoverable. The same extension to wives is recognised in South Australia, pursuant to the Civil Liability Act 1936 s 65. 17.12 The alternate response of abolishing a husband’s right of action has been legislated in the Australian Capital Territory, New South Wales, Tasmania and Western Australia: Civil Law (Wrongs) Act 2002 (ACT) s 218; Civil Liability Act 2002 (NSW) Sch 2, cl 1; Civil Liability Act 2002 (Tas) s 28D; Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 3. In the

Northern Territory and Victoria, the action has been limited: Motor Accidents (Compensation) Act (NT) s 5; Work Health Act (NT) s 52; Transport Accident Act 1986 (Vic) s 93.

Seduction, Enticement and Harbouring 17.13 At common law, a husband had a right of action for loss of his wife’s consortium against a third party who seduced his wife or enticed her to leave him: Winsmore v Greenbank (1745) Willes 577; 125 ER 1330. The action for enticement (or alienation of affection) derived from the anachronistic writ of ravishment at a time when a husband was viewed as having a proprietorial interest in his wife. A wife had no common law right of action for the loss of her husband’s consortium because of enticement or harbouring: Wright v Cedzich (1930) 43 CLR 493; Winchester v Fleming [1957] 4 All ER 711. [page 443] It was not necessary that the third party injured or committed adultery with the wife: Place v Searle [1932] 2 KB 497. However, if the enticement was occasioned by the wife’s family, this may have allowed a defence of just cause: Gottlieb v Gleiser [1958] 1 QB 267n. 17.14 A similar anachronistic action was available to a husband in respect of the harbouring of his wife by a third party, and although the Commonwealth legislation does not seek to abolish that right, doubts have been cast upon its continued existence at common law: Winchester v Fleming [1957] 4 All ER 711. 17.15 In CSR Ltd v Eddy (2005) 226 CLR 1; 222 ALR 1, Gleeson CJ, Gummow and Heydon JJ noted that actions per quod consortium amisit, per

quod servitium amisit, and the torts of seduction, enticement and harbouring, are now sometimes seen as ‘antique’: at [44] citing Burnicle v Cutelli [1982] 2 NSWLR 26 at 31 per Glass JA. 17.16 Section 120 of the Family Law Act 1975 (Cth) abolishes the action of enticement of a party to a marriage. The torts of seduction and harbouring have been abolished in some Australian jurisdictions: Civil Law (Wrongs) Act 2002 (ACT) s 210; Civil Liability Act 1936 (SA) s 68; Civil Liability Act 2002 (Tas) s 28E. However, it is extremely rare for these actions to be relied upon in the other jurisdictions.

Damages 17.17 The damages recoverable by a husband in a successful per quod action based upon injury to his wife extend to compensation for all practical domestic disadvantages suffered as a result of the wife’s injuries; for example, medical and domestic expenses; taking time off work to look after her; and the reduction in the wife’s ability to provide conjugal support and assistance: Toohey v Hollier (1955) 92 CLR 618; Lawrence v Biddle [1966] 2 QB 504. It may also extend to an amount to compensate for impairment of the wife’s sexual capacity and consequent reduction in the chances of the husband raising a family, and contribution to a marriage breakup: Pickering v Ready Mixed Concrete (Queensland) Pty Ltd [1967] QWN 45; Parker v Dzundza [1979] Qd R 55. 17.18 In Andrewartha v Andrewartha (1987) 44 SASR 1, the South Australian Supreme Court (in Banco) considered an action by the husband of a quadriplegic victim of a road traffic accident which sought damages for loss of consortium, including a loss of servitium. The court held the husband’s damages were confined to the loss of his wife’s society and for the temporal losses involved, and for the loss of her services to him as a wife. His pain and suffering, distress and depression, heartache and sorrow, and the mental,

emotional and spiritual losses which he suffered in the course of his efforts to care for his wife at home were not, in law, compensable. 17.19 A husband who changes his location to remain near his wife during her hospitalisation will be able to recover this additional cost as a necessary expense in mitigation of the loss of consortium: McNeill v Johnstone [1958] 1 WLR 888. Where a husband gives up his job to be near his wife during her incapacity, but had previously lived in a different locality from her anyway, he cannot recover his loss of wages as loss of consortium: Kirkham v Boughey [1958] 2 QB 338. [page 444] 17.20 The contributory negligence of the wife does not affect the husband’s per quod action: Mallett v Dunn [1949] 2 KB 180. In Curran v Young (1965) 112 CLR 99, the wife suffered personal injuries in a motor vehicle accident caused by the defendant’s negligent driving. There were hospital and medical expenses which the husband paid, and the normal household services which the wife had performed were lost during the period of her incapacity. The husband succeeded in his claim of per quod consortium amisit, notwithstanding a finding that the wife had been guilty of contributory negligence, because the husband’s claim was an independent one based upon his loss of her services.

4

Interference with Domestic Relations Between Parent and Child

Loss of Services 17.21

Where a child has performed services for a natural parent or person

in loco parentis and has been injured by another, the parent can claim compensation for the resultant loss of services to the parent. A parent may have a right of action to recover an amount expended while a child is injured, in circumstances where the parent is under an obligation to provide care and attention for the injured child: Attorney-General (NSW) v Perpetual Trustee Co Ltd (1952) 85 CLR 237; Blundell v Musgrave (1956) 96 CLR 73. 17.22 The contributory negligence of the injured child will not affect the parent’s right of action: Lloyd v Lewis [1963] VR 277. The injured child may be able to recover the expenses paid by a parent in the child’s personal action: Cutcheon v Davis [1964] QWN 4. 17.23 Legislation in the Northern Territory has abolished the action in respect of motor vehicle and work accidents: Motor Accidents (Compensation) Act (NT) s 5; Return to Work Act (NT) s 52. In Victoria, no damages may be claimed if the injury is the result of a motor vehicle accident: Transport Accident Act 1986 (Vic) s 93.

Seduction, Enticement and Harbouring 17.24 Similar to a husband’s actions in respect of his wife, a father had an action in regard to his daughters for seduction: Manvell v Thomson (1826) 2 C & P 303; 172 ER 137. The action allowed a father, or the person who stood in place of the father, to be compensated for any consequential loss of the daughter’s ability to provide household services due to having sexual intercourse with a man other than her husband. 17.25 A mother has no right to sue (Hamilton v Long [1905] 2 IR 552) and loss tends to be assumed. In Victoria and Western Australia, there is a presumption that the relationship of father and daughter involves the provision of household services: Wrongs Act 1958 (Vic) s 14; Evidence Act 1906 (WA) s 49.

The action has been abolished in the Australian Capital Territory, South Australia and Tasmania: Civil Law (Wrongs) Act 2002 (ACT) s 210(a); Civil Wrongs Liability Act 1936 (SA) s 68(a); Civil Liability Act 2002 (Tas) s 28E. [page 445] 17.26 The torts of enticement and harbouring sought to protect what was regarded as a proprietorial interest in a child, similar to the status of a servant. The actions arose if the defendant encouraged the child who was living with their parents to leave home or to not return home: Evans v Walton (1867) LR 2 CP 615. The actions have been abolished in the Australian Capital Territory, South Australia and Tasmania: Civil Law (Wrongs) Act 2002 (ACT) s 210(b); Civil Wrongs Liability Act 1936 (SA) s 68(b) and (c); Civil Liability Act 2002 (Tas) s 28E.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Chs 20 and 24. M Thornton, ‘Loss of Consortium: Inequality Before the Law’ (1984) 10 Syd LR 259.

1.

M Thornton, ‘Loss of Consortium: Inequality Before the Law’ (1984) 10 Syd LR 259.

[page 447]

Chapter 18 Public and Statutory Duties 1

Introduction

18.1 There is a group of torts which allow a person, who has suffered harm as a result of another’s breach or abuse of a public or statutory duty, to bring a private action against that other person. The duty may arise under the common law and/or statute. In this chapter, three torts relating to breach or abuse of a public duty are considered: breach of statutory duty; abuse of process; and misfeasance in public office. Public nuisance, another example of a tort which allows a person to bring a private action based upon an interference with a public right, is considered in Chapter 25.

2

Breach of Statutory Duty

18.2 The phrase, ‘breach of statutory duty’, may be used to refer to the negligent exercise of a statutory power as well as the private cause of action. Although the same breach of statute may give rise to both actions, the tort of breach of statutory duty is a separate tort to that of negligence. The defining characteristic of the tort of breach of statutory duty is that it allows a person

to bring a private cause of action for the breach of a public duty which has caused that person harm. In Groves v Lord Wimborne [1898] 2 QB 402 at 415–16, Vaughan Williams LJ stated: It cannot be doubted that, where a statute provides for the performance by certain persons of a particular duty, and some one belonging to a class of persons for whose benefit and protection the statute imposes the duty is injured by failure to perform it, prima facie, and, if there be nothing to the contrary, an action by the person so injured will lie against the person who has so failed to perform the duty.

See also Mallinson v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 at 71. 18.3 The tort dates back to the 13th century, but it was during the 19th century that the action achieved its current form.1 [page 448] In particular, it was during the 19th century that the common law courts used the breach of statutory duty tort action as a means of circumventing the defences of common employment and contributory negligence, which often denied injured workers a remedy at common law: Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422. This early association of the tort with the safety of workers continues today with industrial safety legislation being more likely than other forms of legislation to provide the basis for a private cause of action under the tort of breach of statutory duty: Lochgelly Iron & Coal Co Ltd v McMullan [1934] AC 1; Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195; Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585. 18.4 The 19th century was also the period when many statutes were passed for the benefit of private enterprise, for example the construction of railways and other forms of infrastructure. Because of the private benefit conferred by this type of legislation, courts were likely to find that a civil action was

available for those who suffered harm as a result of the activities sanctioned by the legislation: Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422. Today, comparable statutes are those which give effect to agreements between government authorities and private corporations for the outsourcing of functions previously performed by government or public authorities for the benefit of the public: Byrne v Australian Airlines Ltd; Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575. In Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585 at [29], Gleeson CJ, Gummow and Hayne JJ commented that the current trend towards the outsourcing of government functions raises similar issues as to whether a private action is available under the outsourcing legislation. 18.5 This private cause of action has its critics, and some have suggested that the tort ought to be abolished or at least refined.2 In Canada, the tort has been abolished (R v Saskatchewan Wheat Pool [1983] 1 SCR 205) and in the United Kingdom, claims for breach of statutory duty are still being litigated in the superior courts, despite the recommendation of the Law Reform Commission that the action be abolished: United Kingdom Law Commission, Administrative Redress: Public Bodies and the Citizen, Consultation Paper No. 187 (2008). 18.6

To bring a breach of statutory duty action, the plaintiff must establish:

that a private cause of action in tort is available under the statute; the statutory duty was imposed upon the defendant; the harm suffered by the plaintiff was of a kind which the statute was enacted to prevent; the plaintiff was a person for whose protection the statute was enacted; the defendant breached the statutory duty; and the plaintiff’s harm was caused, both factually and in law, by the defendant’s breach of the statutory duty. See Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209.

[page 449]

A Private Cause of Action 18.7 Whether or not a statute provides for a private or civil cause of action is a question of statutory interpretation: O’Connor v S P Bray Ltd (1937) 56 CLR 464; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [78]. A statute may expressly allow for a private cause of action, but this is rare. For example, s 236 of the Australian Consumer Law provides: (1) If: (a) a person (the claimant) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 or 3; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

Alternatively, the statute may expressly prohibit the bringing of a private cause of action. 18.8 Most often, however, statutes are silent as to the availability of a private or civil cause of action. In these circumstances, a court must determine, as a question of law and as a matter of statutory interpretation, whether a civil cause of action can be inferred from the ‘nature, scope and terms’ of the statute. Kitto J commented in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 405: The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation … It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances.

See also X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 730.

Pre-existing law and history of the statute 18.9 If the statute is replacing one which previously allowed for a private cause of action, there will be a strong inference that the current statute, in the absence of a contrary intention, also supports a private or civil cause of action: Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422.

Existing common law duty 18.10 If a common law duty is already imposed, then it is more likely that a private cause of action under the statute will be inferred: O’Connor v S P Bray Ltd (1937) 56 CLR 464; Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422; Atkinson v Newcastle and Gateshead Waterworks Co (1877) LR 2 Ex D 441. An important exception is where the legislation in question relates to the regulation of traffic. Such legislation is interpreted to control and regulate traffic, not provide a private right of action for individuals: see Bowling v Weinert [1978] 2 NSWLR 282. [page 450]

Purpose and subject matter of statute 18.11 A private cause of action is more likely to be inferred where the stated purpose of the statute is the protection of the health, safety and welfare of members of the public or of a specific section of the public such as employees: Couch v Steel (1854) 118 ER 1193. In O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 478, Dixon J summarised the principles: In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognized by the general principles of the common law … Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person

upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears.

18.12 Both Dixon J’s comments and those of Kitto J in Sovar v Henry Lane Pty Ltd quoted above (at 18.8) were endorsed by the High Court in Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422 and Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585. In Wynn Tresidder Management Pty Ltd v Barkho [2009] NSWCA 149, the respondent was injured when she slipped on a ramp at a shopping centre controlled by the appellant. She did not work at the centre. She sued in negligence and breach of statutory duty arguing that the appellant was in breach of the Occupational Health and Safety Regulation 2001 (NSW). McColl JA stated that it seemed ‘prima facie improbable that legislation whose object is to secure the health, safety and welfare of persons at work would extend to provide a private cause of action to members of the public’: at [91]. The court did not have to decide the issue as it was established that the appellant had breached its duty of care owed to the respondent as an occupier.

Standard prescribed by statute 18.13 Traditionally, the courts have been inclined to infer a private cause of action only where the statute specified a precise standard of conduct: Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195; Groves v Lord Wimborne [1898] 2 QB 402; Atkinson v Newcastle and Gateshead Waterworks Co (1877) LR 2 Ex D 441; Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585; General Constructions Pty Ltd v Peterson (1962) 108 CLR 251 at 257. In O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 478, Dixon J stated: … a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty is laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention

appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on.

18.14 For example, in Storozuk v Commissioner for Railways [1963] SR (NSW) 581 at 593–4, Brereton J (with whom Else-Mitchell J agreed) doubted whether regulations which expressed an obligation in terms of a requirement to take ‘all practicable precautions’ founded a civil action because the phrase did not ‘prescribe or define precisely the means [page 451] that must be taken’ to comply with the statutory standard. See also Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 at [106]. However, in Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585, the High Court held that a provision of the Occupational Health, Safety and Welfare Act 1986 (SA), which turned on the phrase ‘ensure so far as reasonably practicable’, did provide a sufficiently precise standard to support a private cause of action: at [27]–[29] per Gleeson CJ, Gummow and Hayne JJ, at [50] per Gaudron J, at [87] per Callinan J. Slivak was applied in McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd (2004) Aust Torts Reports ¶81-768, by the New South Wales Court of Appeal to find that requirements to take ‘all practicable steps’ and ‘all practicable precautions’ were sufficiently specific, when combined with the purpose of the dangerous goods legislation, to allow a private cause of action. 18.15 See also Lubrano v Proprietors of Strata Plan No 4038 (1993) 6 BPR 13,308, where the plaintiff alleged that a failure of a body corporate of a community titles scheme to comply with its obligations under the relevant Act gave rise to an action in breach of statutory duty. Section 68 of the Strata Titles Act 1973 (NSW) provided that a body corporate shall ‘(a) control, manage and administer the common property for the benefit of the

proprietors; (b) properly maintain … the common property; (c) where necessary, renew or replace any fixtures or fittings comprised in the common property’. The plaintiff argued that the Act was like a safety Act. The defendant pointed out that the Act did not impose specific obligations and that s 68 made ‘mere motherhood statements’. Young J held that the cases supported the finding that the phrase ‘where necessary’ was capable of identifying a specific duty and therefore the Act did allow a private cause of action. See also Seiwa Pty Ltd v Owners Strata Plan 35042 (2006) 12 BPR 23,673.

Protected class 18.16 If the purpose of the Act is for the general good of the public, rather than the protection of a specified class, this is regarded to be ‘a strong indication against an intention that there should be a private cause of action’: Alcoa of Australia Ltd v Apache Energy Ltd [2012] WASC 209 at [84]. See also Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173; Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934. For example, s 17 of the Work Health and Safety Act 2011 (Qld), which is specifically for the protection of employees, does allow a private cause of action, while other sections of the same Act, which are aimed at the protection of the public generally, do not. Just because one of several sections in a statute does not create a private right does not necessarily mean that other sections in the same enactment cannot create such a right: O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 479. In Chordas v Bryant (Wellington) Pty Ltd (1988) 20 FCR 91; 91 ALR 149, the plaintiff alleged that the injuries he sustained in a hotel brawl were caused by the defendant hotel’s breach of s 79 of the Liquor Ordinance 1975 (ACT), by serving a person with liquor when it had reasonable grounds for believing that he was intoxicated. The Federal Court of Australia held that s 79 did not confer a private right of action. Davies, Kelly and Neaves JJ held (at FCR 102; ALR 159–60):

Section 79 appears in an Ordinance which is intended to protect the public interest by regulating the sale of intoxicating liquor, so as to protect those who by overindulgence or because of youth or mental ill health are at risk from its abuse … Section 79 does not confer a private right of action

[page 452] for damages resulting from its breach. Section 79 was enacted in the general public interest, not for the protection of persons who may be injured by the conduct of intoxicated persons.

Planning legislation is another example of where it has been held that the powers and duties are conferred for the benefit of the public generally, not individuals or particular classes of individuals: see Lidner v Corp pf City of Marion [2015] SASC 152; Buxton v Minister of Housing and Local Government [1961] 1 QB 278.

Statute provides for a penalty 18.17 There is a strong inference that a civil action is available if the statute does not impose a penalty for breach of the statutory duty: Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 at 407. However, the provision of a penalty does not automatically preclude a private right of action: see Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204 at 207. In X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 731–2, Lord BrowneWilkinson stated: If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: Cutler v Wandsworth Stadium Ltd [1949] AC 398; Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173. However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy. Thus the specific duties imposed on employers in relation to factory premises are enforceable by an action for damages,

notwithstanding the imposition by the statutes of criminal penalties for any breach: see Groves v Wimborne (Lord) [1898] 2 QB 402.

See also Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 at 53; Morrison Sports Ltd v Scottish Power UK plc [2010] 1 WLR 1934 at [28]. In Preston v Star City Pty Ltd [1999] NSWSC 1273, the plaintiff argued that the defendant was liable for breach of statutory duty by inducing him to take part in gambling. The court noted that there was an established body monitoring casinos and supervising compliance, as well as criminal and civil sanctions and disciplinary action in the event of a contravention of the legislation. The court held that ‘the comprehensive regulatory scheme set up under the [Casino Control Act 1922 (NSW)] and [Casino Control Regulations 1995 (NSW)] … is such that the requisite legislative intention to confer a private right of action for damages is lacking’: at [87]. 18.18 As noted in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, the presumption that the imposition of a penalty infers there is no civil action available may be rebutted. A court may consider the following: The nature of the damage for which penalties are imposed: Dairy Farmers Cooperative Ltd v Azar (1990) 170 CLR 293; 95 ALR 1; O’Connor v S P Bray Ltd (1937) 56 CLR 464 at 478. Generally, a private cause of action is more likely to be inferred where the damage consists of personal injuries. However, although these forms of action are the most common, a breach of statutory duty action may also be available [page 453] for property damage (Nalder v Commissioner for Railways [1983] Qd R 620), and even for pure economic loss: Inland Revenue Commissioners v Goldblatt [1972] Ch 498. The nature and adequacy of the penalty prescribed for the breach of the statutory duty: Butler v Fife Coal Co Ltd [1912] AC 149. For

example, one of the factors in Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 422, which mitigated against a finding that a private cause of action was available, was that the available penalty for breach was the relatively modest sum of $1,000. Considered together with other factors, the size of the penalty did not support the inference that an unlimited amount of common law damages should be available in a civil action. The subject matter of the statute: Some types of statute are presumed to provide for a civil cause of action even where a penalty is imposed, most notably, legislation concerned with workplace health and safety: O’Connor v S P Bray Ltd (1937) 56 CLR 464; Schiliro v Peppercorn Child Care Centres Pty Ltd (No 2) [2001] 1 Qd R 518. In contrast, Australian road safety legislation is presumed not to provide for a civil action: Tucker v McCann [1948] VLR 222; Brulhart v Jarman [1964] NSWR 1210.

Delegated legislation 18.19 In regard to delegated legislation, it would seem that a private cause of action is only available when a private cause of action could be available under the enabling legislation: Byrne v Australian Airlines Ltd (1995) 185 CLR 410; 131 ALR 42. In Byrne, the plaintiff baggage handlers argued that the manner in which they were dismissed for pilfering was in breach of cl 11(a) of the Transport Workers (Airlines) Award 1988 (Cth). Awards are a form of delegated legislation enacted by the Australian Industrial Relations Commission, then pursuant to its powers under the Industrial Relations Act 1988 (Cth). Clause 11(a) provided that, ‘[t]ermination by an employer shall not be harsh, unjust or unreasonable’ and a penalty for breach of the award was provided for by s 178 of the Act. The High Court held that, even if the plaintiffs’ dismissal occurred in a way which did contravene cl 11(a) of the award, there was no private cause of action available. While it was acknowledged that awards have statutory force,

the award was not to be regarded as being enforceable by way of a civil action unless the enabling legislation, the Industrial Relations Act 1988, itself allowed for the creation of private rights of action. As Brennan CJ, Dawson and Toohey JJ stated (at CLR 803; ALR 430): The appellants’ argument tended to focus upon the award itself rather than the Act. But an award is not a statute and if a duty imposed by an award is to be regarded as a statutory duty enforceable by way of a civil action for damages, then the necessary intention that it should be so regarded must ultimately be found in the Act and not the award. The Act discloses no such intention. [footnotes omitted]

McHugh and Gummow JJ stated the general principle in regard to whether a civil cause of action should be inferred into delegated legislation as being: … where the duty in question is created by delegated legislation in the form of regulations made under power conferred on the Executive by statute, there is an added difficulty in discerning the existence of a civil sanction for breach. The question then, as Fullagar J pointed out in Darling

[page 454] Island Stevedoring and Lighterage Co Ltd v Long [(1957) 97 CLR 36 at 54–5] is whether the statute gives power to create by regulation duties enforceable by action at the suit of a person injured by breach thereof. If the statute does not expressly confer on the Executive a power by regulation to create an action for damages at the suit of any person injured by breach of the substantive provisions of the regulations, it must be difficult to construe the statute and the delegated legislation as impliedly bringing about that result: at CLR 824; ALR 458–9.

See also Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36; Govic v Boral Australian Gypsum Ltd [2015] VSCA 130.

The Duty was Imposed on the Defendant 18.20 A person cannot maintain a civil action for breach of a statutory duty unless the statute imposes the duty on the defendant: Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36. In that case, the plaintiff stevedore was injured while unloading a ship, when part of the cargo hit the ship’s hatch beams which had been left on during the unloading

operation. The plaintiff brought an action against his employer, alleging breach of the Navigation (Loading and Unloading) Regulations 1941 (Cth), which provided that hatch beams should be removed while loading or unloading. The regulations provided that any breach was punishable by a fine of £100 imposed on the ‘person in charge’. The High Court held that the plaintiff’s action for breach of statutory duty failed because, although the relevant regulation did confer a private right of action, any action lay against the ‘person in charge’. In this case, the foreman of the stevedoring gang was ‘in charge’, not the defendant employer. 18.21 See also Irwin v Salvation Army (NSW) Property Trust [2007] NSWDC 266, where the clause of the regulation required the controller of premises to ensure that the floors were designed to be safe. The court held that the clause was directed at the design and installation of the floors and that the defendant employer had nothing to do with the design of the floors. 18.22 If the statute imposes the duty upon an employer personally, an employer may not avoid liability by proving that the task subject to the duty was delegated to another. The task may still be delegated but the liability cannot. See Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387, which overruled Ginty v Belmont Building Supplies Ltd [1959] 1 All ER 414 (plaintiff employee had no action if task delegated to them and that is how they were injured). 18.23 Whether the doctrine of vicarious liability (see Chapter 20) applies will depend upon whether the statute specifies the persons upon whom the statutory duty is imposed, or leaves open the class to include those who are responsible for the conduct of others. For example, in Progress & Properties Ltd v Craft (1976) 135 CLR 651; 12 ALR 59, the plaintiff was injured when riding on a goods hoist at a building site. The operator’s foot slipped off the brake and the hoist fell to the ground at an excessive speed. The plaintiff sued

the operator and his employer, alleging breach of a regulation made under the Scaffolding and Lifts Act 1912 (NSW), which provided: The speed at which any load is raised or lowered shall not exceed 600 ft per minute.

[page 455] The speed of the hoist had exceeded the prescribed maximum speed as it fell to the ground. The High Court held unanimously that the plaintiff’s action succeeded. Jacobs J (with whom Stephen, Mason and Murphy JJ agreed) commented (at CLR 670; ALR 74): [This] being a regulation designed to ensure the safety inter alia of persons travelling on the hoist, there is nothing in the sub-regulation or its context to suggest that there should be no right of civil action as a consequence of its breach by the person carrying out building work or by a person for whose acts the builder is vicariously liable. [emphasis added]

See also Majrowski v Guy’s and St Thomas’s NHS Trust [2007] 1 AC 224 (breach of Protection from Harassment Act 1997 (UK) by employee made employer vicariously liable).

The Statute was Intended to Prevent that Kind of Harm 18.24 A person cannot maintain a private action for breach of a statutory duty unless the plaintiff’s damage is the kind of damage the statute was intended to prevent: Gorris v Scott (1874) LR 9 Ex 125; Cutler v Wandsworth Stadium Ltd [1949] AC 398; Solomons v R Gertzenstein Ltd [1954] 2 QB 243. In Gorris v Scott (1874) LR 9 Ex 125, the plaintiff’s sheep were washed overboard while they were being carried on the defendant’s ship. The defendant, in breach of s 75 of the Contagious Diseases (Animals) Act 1869 (UK), had failed to provide deck pens to hold the sheep. The plaintiff sued the defendant, alleging that his sheep would not have been washed overboard if the defendant had not breached his statutory duty to provide pens on the

deck of the ship. The Court of Exchequer held the defendant had breached a statutory duty to pen the sheep, but the plaintiff’s action failed because loss of the sheep overboard ‘was not contemplated’ by the statute, which was designed to prevent the spread of contagious diseases. 18.25 Similarly, in Mummery v Irvings Pty Ltd (1956) 96 CLR 99, the plaintiff entered the defendant’s sawmill to buy some timber and a piece of wood flew from a saw and struck the plaintiff in the face, causing severe injuries. The plaintiff sued the defendant, alleging it had breached the Factories and Shops Act 1928 (Vic) s 59(1)(a), which provided: Every occupier of a factory shall provide guards for … all dangerous parts of the machinery of the factory …

The saw did not have a guard attached, but the High Court held that the plaintiff’s action for breach of statutory duty failed because the obligation to fence factory machinery under s 59(1)(a) was designed to protect against the risks posed by the dangerous parts of the machinery and not designed to protect against the risks indirectly posed by the machinery such as dangerous objects being thrown from the machinery.

The Plaintiff was a Person for Whose Protection the Statute was Passed 18.26 A civil action for damages will not lie unless the plaintiff is one of the persons for whose protection the statute was passed: Lochgelly Iron & Coal Co Ltd v McMullan [1934] AC 1; Knapp v Railway Executive [1949] 2 All ER 508; Phillips v Britannia Hygienic Laundry Co Ltd [1923] 1 KB 539; Whittaker v Rozelle Wood Products Ltd (1936) 36 SR (NSW) 204. [page 456] In Read v Croydon Corporation [1938] 4 All ER 631, the first plaintiff, a

minor, contracted typhoid after drinking contaminated water supplied by the defendant corporation. Her father, the second plaintiff, incurred expenses in looking after his daughter during her illness. Both sued the defendant corporation, alleging that it had breached its statutory duty under the Waterworks Clauses Act 1847 (UK) s 35 to provide: … pure and wholesome water [to] all the inhabitants of the town … who … shall be willing to pay a water rate for the same.

The court held that the statute conferred no right of action on the minor as she was not a ratepayer. However, her father’s action succeeded because he was a ratepayer, even though he himself had not contracted typhoid. 18.27 In Pask v Owen [1987] 2 Qd R 421, an action was brought against defendants who gave their 15-year-old son an airgun and ammunition. The defendants knew that their son allowed his 13-year-old friend to handle the gun and ammunition. The friend accidentally shot himself in the eye with the airgun and sued the defendants, alleging that they had breached the Firearms and Offensive Weapons Act 1979 (Qld) s 63(2), which provided: … a person shall not knowingly supply any firearm … or ammunition to or for the use of a prevented person.

The defendants’ son, as a minor, was a ‘prevented person’ for the purposes of the Act. The Full Court of the Supreme Court of Queensland held that s 63(2) did confer a private right of action on the plaintiff. Chief Justice Andrews (with whom Kelly SPJ agreed) said (at 427): The section of the Act creating the duty … created a private right vested in the plaintiff to have his safety ensured by compliance by the defendants with the provisions of the section and thus with the purposes of the Act. He is within the class sought to be protected, namely children coming into contact with [the defendants’ son], also a child, in his home in possession of the airgun and ammunition, but in any event he would have the right as a member of the public.

18.28 In Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 at [237], it was held that visitors to a unit injured when a balcony collapsed at a New Year’s Eve party were not within the class of persons protected by s 35(1) (c) of the Strata Titles Act 1985 (WA), as the duty in the provision was owed

to ‘persons with a proprietary or occupational connection with the units served by the common property’. See also Schuller v S J Webb Nominees Pty Ltd (2015) 124 SASR 152, where it was held that legislation that empowered publicans to eject intoxicated patrons from premises was to protect the other patrons, not the ejected person.

Breach of the Duty 18.29 The plaintiff must establish the nature of the duty imposed by the statute and whether that duty has been breached. This is a question regarding the construction of the statute to determine whether a particular duty is absolute, involving strict liability, or whether negligence must be proved: Galashiels Gas Co Ltd v O’Donnell [1949] AC 275; Boyle v Kodak Ltd [1969] 1 WLR 661; [1969] 2 All ER 439; Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195. [page 457] For example, in Galashiels Gas Co Ltd v O’Donnell, the defendant was under a statutory obligation imposed by s 22(1) of the Factories Act 1937 (UK), which provided: Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained.

The House of Lords held that these words imposed an absolute obligation on the defendant. In that case, it was therefore held that the plaintiff was not required to prove that there was an alternative, safer system of work as he would have had to do at common law if he had brought the action in negligence. Lord Morton of Henryton said (at 282–3): The words of the subsection are imperative, “shall be properly maintained”, and I can find nothing in the context or in the general intention of the Act, read as a whole, which should lead your Lordships to infer any qualification upon that absolute obligation. It is quite true that the

subsection, so read, imposes a heavy burden upon employers, but the object of this group of sections is to protect the workman. I think the subsection must have been so worded in order to relieve the injured workman from the burden of proving that there was some particular step which the employers could have taken and did not take … The statute renders the task of the injured workman easier by saying, “You need only prove that the mechanism failed to work efficiently and that this failure caused the accident”.

18.30 In Seiwa Pty Ltd v Owners Strata Plan 35042 (2006) 12 BPR 23,673, the plaintiff was awarded damages for breach of statutory duty based upon the owners corporation of a strata plan breaching the duty to maintain the common property. Section 62 of the Strata Schemes Management Act 1996 (NSW) provided: An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

The court held that the duty was a strict duty to maintain and keep in repair, not a duty to use reasonable care to maintain and keep the property in repair: at [2]. Therefore, it was irrelevant that the defendant had taken all reasonable steps to comply with the duty contained in s 62. See also Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; 177 ALR 585 and McDonald (t/as B E McDonald Transport) v Girkaid Pty Ltd (2004) Aust Torts Reports ¶81-768. 18.31 This may be contrasted with the Australian High Court decision in Waugh v Kippen (1986) 160 CLR 156; 64 ALR 195. In Waugh, the plaintiff was injured while moving a heavy steel beam. He sued his employers, alleging that they had breached a rule made under the Factories and Shops Act 1960 (Qld), which provided: A male employee over eighteen years of age shall not be permitted or allowed to lift, carry, or move by hand any object so heavy as to be likely to cause risk of injury.

The High Court held, by a majority, that the statutory rule did not impose an absolute liability on the defendant employers. The court held that the words ‘permitted or allowed’ presupposed an awareness on the part of the employer that his or her employee was engaged in moving an object so heavy

as to be likely to cause injury. Although the plaintiff had a pre-existing back weakness, the employers neither knew nor ought to have known of this. As they neither knew nor ought to have known that moving the beam [page 458] would be likely to cause injury to the plaintiff, they had not breached the duty imposed by the statute. 18.32 If the duty is not absolute, the statute may set the standard of care required by the defendant. In Parry v Woolworths Ltd [2010] 1 Qd R 1, the court had regard to the subordinate legislation, the Manual Tasks Advisory Standard 2000 (Qld). See also McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd (2004) Aust Torts Reports ¶81-768 (‘all practicable steps’ and ‘all practicable precautions’); Austral Bronze Co Pty Ltd v Ajaka (1970) 44 ALJR 155 (‘so far as is reasonably practicable’). 18.33 The civil liability legislation in all jurisdictions, except for the Northern Territory and South Australia, adopted the recommendation of the Ipp Report3 that an act or omission of a public authority will only be unreasonable if another public authority with the same functions would consider the act or omission to be reasonable: Recommendation 39. For example, s 36 of the Civil Liability Act 2003 (Qld) states: Proceedings against public or other authorities based on breach of statutory duty (1) This section applies to a proceeding that is based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority. (2) For the purposes of the proceeding, an act or omission of the authority does not constitute a wrongful exercise or failure unless the act or omission was in the circumstances so unreasonable that no public or other authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions.

See also Civil Law (Wrongs) Act 2002 (ACT) s 111; Civil Liability Act 2002

(NSW) s 43; Civil Liability Act 2002 (Tas) s 40; Wrongs Act 1958 (Vic) s 84; Civil Liability Act 2002 (WA) s 5X. Therefore, if the defendant is a public authority and the statute does not impose strict liability, to avoid liability it could provide evidence that a public authority with similar powers would consider the act or omission that is the basis for the action, as a reasonable exercise of its power. See Hamcor Pty Ltd v Queensland [2014] QSC 224, where it was held that s 36 of the Civil Liability Act 2003 (Qld) applied only to actions for breach of statutory duty, and not negligence actions, affirmed in Hamcor Pty Ltd v Queensland [2015] QCA 183.

Causation 18.34 The harm or damage suffered by the plaintiff must have been caused by the defendant’s breach of the statutory duty: Sherman v Nymboida Collieries Pty Ltd (1963) 109 CLR 580; Duyvelshaff v Cathcart & Ritchie Ltd (1973) 1 ALR 125; Progress & Properties Ltd v Craft (1976) 135 CLR 651; 12 ALR 59. The breach need not be the sole contributing factor to the damage, unless the statute requires it. [page 459] 18.35 An example of issues with causation is loss claimed to result from a breach of licensing requirements. It is difficult to establish some causal relationship between an accident and the failure to comply with the statutory requirement to hold a licence or certificate: Leask Timber and Hardware Pty Ltd v Thorne (1961) 106 CLR 33; Matthews v McCullock of Australia Pty Ltd [1973] 2 NSWLR 331. However, where the licence requirement is in respect of dangerous machinery and for the protection of those who may be exposed to the danger,

a court may take a different view. In John Pfeiffer Pty Ltd v Canny (1981) 148 CLR 218; 36 ALR 466, the plaintiff was injured when he was struck on the head by a steel pin fired from an explosive-powered gun by a fellow employee. That employee was not a ‘qualified operator’ for the purposes of regulations made under the Scaffolding and Lifts Act 1912 (NSW), which provided: No person shall employ, instruct or allow any person to use a tool in any work without first ensuring by proper enquiry that such person is a qualified operator and is not by reason of any infirmity, disability or incapacity unfit to use such tool.

The plaintiff sued his employer, alleging that his injuries were caused by breach of its statutory duty in allowing a person who was not a qualified operator to use the gun. The High Court held that the plaintiff’s action did, in this case, succeed. Mason J explained (at CLR 230; ALR 475): [I]f a statute prohibits a person from operating a dangerous machine unless he holds a certificate of competency, in order to protect a class of persons who might be injured by the operation of the machine, it is evident that the particular object of the provision is to eliminate or diminish the risk of injury due to incompetent operation of the machine by ensuring that it will be operated by those who are competent. Breach of the statutory duty enlarges the risk of incompetent operation of the machine and is in itself a cause which contributes to an injury which is sustained through incompetent operation. In such a situation the problem of causation is not a ground for denying the existence of a civil cause of action.

18.36 In circumstances where the injured person and the person whose default under the statutory provisions caused the injury are identical, the plaintiff will be held to be solely to blame for his or her own injury. In Shedlezki v Bronte Bakery Pty Ltd (1970) 72 SR (NSW) 378, the plaintiff was solely to blame for his injury but also involved his one-person company in breach of a statutory duty by so doing. However, the decision in Shedlezki must be now considered within the context of the High Court decision in Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387. In Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; 206 ALR 387, Wail was injured when carrying out contracted work for the respondent as a driver for its laundry services. The respondent joined the appellant to the proceedings seeking contribution as Wail was employed by the appellant as

well as being the director and shareholder. The High Court held that the appellant could be liable to Wail as an employee for a breach of duty committed by him as a director of the appellant: at [39].

Defences 18.37 A defendant has very few defences to rely upon in an action for breach of statutory duty. If the statute that has been breached contains defences, they may not be available [page 460] to the defendant; it will be a matter of construction of the provision. For example, in Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397, it was held that the defence raised by the defendant was concerned with criminal liability, not civil, and therefore was not available. 18.38 Voluntary assumption of risk (volenti non fit injuria) is not available as a defence because a person cannot consent to breach of a duty imposed by a parliament: Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669. However, where it is sought to make an employer vicariously liable and the statutory duty is not imposed personally upon the employer, the plaintiff’s voluntary assumption of risk may be a defence: Shedlezki v Bronte Bakery (1970) 72 SR (NSW) 378; Imperial Chemical Industries Ltd v Shatwell [1965] AC 656. 18.39 In regard to the defence of illegality, the High Court has suggested that the reason for not allowing a defence of illegality or joint illegal enterprise is because statutes are usually designed to ensure the safety of the persons concerned. Even if illegality was allowed as a defence, there would be little scope for the action, especially in regard to breaches of workplace health

and safety legislation: Progress & Properties Ltd v Craft (1976) 135 CLR 651; 12 ALR 59. 18.40 Contributory negligence may be proven in an action of breach of statutory duty to reduce a plaintiff’s damages: Piro v W Foster & Co Ltd (1943) 68 CLR 313; Forrest v John Mills Himself Pty Ltd (1970) 121 CLR 149; Kakouris v Gibbs Burge & Co Pty Ltd (1970) 44 ALJR 384; TAL Structural Engineers Pty Ltd v Vaughan Constructions Pty Ltd [1989] VR 545; Kondracuik v Jackson Morgan & Sons (1988) 47 SASR 280: see Chapter 13. Contributory negligence is not available in the Australian Capital Territory: Civil Law (Wrongs) Act 2002 (ACT) s 102(2).

3

Abuse of Process

18.41 The tort of abuse of process, also referred to as ‘collateral abuse of process’, arises when a defendant uses the court process for a purpose that it is not intended to support. Coleman v Buckingham’s Ltd [1963] SR (NSW) 171; Williams v Spautz (1992) 174 CLR 509; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92. In Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35 at 91, Isaacs J stated: … the term “abuse of process” connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose.

18.42 The tort is generally regarded as being first recognised in the case of Grainger v Hill (1838) 4 Bing NC 212; 132 ER 160. In that case, the defendant had secured the plaintiff’s arrest for non-payment of a debt. The defendant’s sole purpose in bringing the debt recovery action was to bring pressure to bear on the plaintiff to surrender the registration papers for a ship which the defendant wished to prevent going to sea. The plaintiff successfully brought an abuse of process action against the defendant who was required to

compensate the plaintiff for the losses he incurred in not being able to make several profitable voyages. [page 461] 18.43 The tort was first recognised by the Australian High Court in Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35 and then in Dowling v Colonial Mutual Life Assurance Society Ltd (1915) 20 CLR 509. 18.44

To succeed in the tort of abuse of process:

the defendant must have had an improper or ulterior motive in commencing or continuing the proceedings; and the plaintiff must have suffered damage.

Improper Motive 18.45 An improper purpose is established if the proceedings are commenced ‘to effect an object not within the scope of the process’: Grainger v Hill (1838) 4 Bing NC 212 at 221; 132 ER 160 at 188; Varawa v Howard Smith & Co Ltd (1911) 13 CLR 35. For example, in Williams v Spautz (1992) 174 CLR 509, the defendant issued defamation proceedings against the plaintiffs in order to pressure a third party, the university, into reinstating the defendant as a university lecturer. If the defendant continues the proceedings rather than commence them for an improper motive, this will also be an abuse of process: Williams v Spautz at 517; Liberty Financial Pty Ltd v Bluestone Group Pty Ltd [2005] FCA 470. 18.46 Where there are mixed purposes, the plaintiff must establish that the predominant purpose was improper: Williams v Spautz (1992) 174 CLR 509 at 517. This is established by proving that but for the improper or ulterior purpose, the defendant would not have commenced the legal proceedings:

Williams v Spautz; Metall & Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391; Hanrahan v Ainsworth (1990) 22 NSWLR 73. 18.47 It is not necessary that there were no reasonable grounds for instituting the proceedings: Butler v Simmonds Crowley & Galvin [1999] QCA 475. This is what distinguishes the action from the tort of malicious prosecution as well as that the plaintiff does not have to prove that proceedings were terminated in their favour: see Chapter 7. It is also not necessary that the defendant had a prima facie case in the original proceedings: Williams v Spautz at 522; Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134. 18.48 The defendant must have been a party to the proceedings alleged to be an abuse of process: Leerdam v Noori [2009] NSWCA 90. Therefore the legal representative cannot be the defendant.

Damage 18.49 As an action on the case, the plaintiff must establish that they suffered damage as a result of the defendant’s actions: Clissold v Cratchley [1910] 2 KB 244.

Defences 18.50 It is no defence that legal advice, taken to substantiate the initial issue of process, is proper: QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245. As to whether there needs [page 462] to be an overt act in pursuance of the improper purpose, see Williams v

Spautz (1992) 174 CLR 509; Butler v Simmonds Crowley & Galvin [1999] QCA 475. Compare the American and Canadian requirement that such an overt act is an essential element of the tort: Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 119–24 per Clarke JA.

4

Misfeasance in Public Office

18.51 Misfeasance in public office is an action on the case where ‘a public officer does an act which, to his [or her] knowledge, amounts to an abuse of his [or her] office’: Farrington v Thomson [1959] VR 286 at 293. In Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513, Lord Steyn described the tort of misfeasance in public office as a well-established action on the case that could be traced back to the 17th century, with the decision of Ashby v White (1704) 14 St Tr 695; 92 ER 710 giving the tort its foundation. See also Dunlop v Woollahra Municipal Council [1982] AC 158 at 172; Little v Law Institute of Victoria (No 3) [1990] VR 257. The tort involves policy considerations, as noted by the High Court in Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 at [37]: Misfeasance in public office is concerned with misuse of public power. Inappropriate imposition of liability on public officials may deter officials from exercising powers conferred on them when their exercise would be for the public good. But too narrow a definition of the ambit of liability may leave persons affected by an abuse of public power uncompensated. The tort of misfeasance in public office must seek to balance these competing considerations.

18.52 It is the intention of the defendant that makes the invalid or unauthorised act an abuse of the power. If a public officer acts beyond their power, even knowingly, without the requisite ‘mental element’, there is no action in misfeasance of office, but the officer may be personally liable in negligence: Northern Territory v Mengel (1995) 185 CLR 307 at 357; 129 ALR

1 at 26. In Northern Territory v Mengel at CLR 347; ALR 18, the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ states: The cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. Nor is that required by policy or by principle. Policy and principle both suggest that liability should be more closely confined. So far as policy is concerned, it is to be borne in mind that, although the tort is the tort of a public officer, he or she is liable personally and, unless there is de facto authority, there will ordinarily only be personal liability.

In Leinenga v Logan City Council [2006] QSC 294 at [64], it was noted that ‘the tort of misfeasance in public office is not easily established. … It cannot be made in a broad brush way. It required particularity in setting out the facts that can, if proven establish the cause of action’. 18.53 The elements of the action were stated by Deane J in Northern Territory v Mengel (1995) 185 CLR 307 at 370; 129 ALR 1 at 37. The plaintiff must prove: an invalid or unauthorised act committed with malice; [page 463] the act was by a public officer in the purported discharge of public duties; and the plaintiff suffered damage.

Invalid or Unauthorised Act Committed with Malice 18.54 An act of a public officer will be invalid if ‘there is no power to be exercised or because a purported exercise of the power has miscarried by reason of some matter which warrants judicial review and a setting aside of the administrative action’: Northern Territory v Mengel (1995) 185 CLR 307 at 356; 129 ALR 1 at 25 per Brennan J. In Sanders v Snell (1998) 196 CLR 329 at 344; 157 ALR 491 at 500, it was noted that an action may be based upon an

act that is beyond the power of the public officer and included acts that are invalid for a want of procedural fairness. For example, in Cornwall v Rowan (2004) 90 SASR 269, the unlawful act was the withdrawal of funding in breach of rules of procedural fairness. 18.55 If the act is valid, even though it may inflict foreseeable loss upon a person, there is no action in misfeasance in public office: Northern Territory v Mengel (1995) 185 CLR 307 at 356; 129 ALR 1 at 25 per Brennan J.

Malice 18.56 The plaintiff must prove that the defendant had the requisite state of mind — malice. Deane J in Northern Territory v Mengel (1995) 185 CLR 307 at 370; 129 ALR 1 at 37, identified the ways in which malice may be established: an intention to cause harm to the plaintiff; knowingly acting beyond their power with the knowledge that it will cause or is likely to cause loss to the plaintiff; or acting with reckless indifference as to the validity of their power and the likely injury to the plaintiff. In Northern Territory v Mengel, the respondents owned two cattle stations in the Northern Territory — including Banka Banka Station, which was purchased in 1987 for approximately $3 million, financed by a loan. The respondents planned to repay $1 million with the proceeds from the sale of cattle in 1988. The Department of Primary Industries and Fisheries in the Northern Territory was carrying out a plan to eradicate bovine brucellosis and tuberculosis, and despite the fact that the respondents’ cattle had previously been confirmed free of the viruses, the Department ordered that the respondents’ cattle could not be moved so tests could be carried out. This was at the time the respondents intended to sell the cattle and by the time they could sell, some of the herd had perished and the price had fallen significantly, causing the respondents to suffer a loss. It was alleged that the

employees of the Department were public officers and either knew or ought to have known that they were acting without authority. As the officers did not know that their order in respect of the movement of cattle was not within their power, and had not made the order with ‘reckless indifference’, there was no malice. [page 464] See also Farrington v Thomson [1959] VR 286; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513; Cornwall v Rowan (2004) 90 SASR 269 at [212]; South Australia v Lampard-Trevorrow (2010) 105 SASR 331. 18.57 In Sanders v Snell (1998) 196 CLR 329; 157 ALR 491, the Minister for Education and Tourism had directed the Norfolk Island Tourist Bureau to dismiss its executive officer, Snell. The Minister’s decision to bring about the dismissal of Snell was based upon an auditor’s report, the accuracy of which had been seriously questioned. When the Chair of the Tourist Bureau suggested that Snell should be given an opportunity to explain, the Minister revoked the appointments of the Bureau’s members, appointed new members and directed the new members to terminate Snell’s contract, which was done. The majority in the High Court of Gleeson CJ, Gaudron, Kirby and Hayne JJ held (at [48]): At most, the trial judge’s finding … was that the appellant had acted peremptorily and with no regard to what he had been told would be fair. That is very different from finding that the appellant knew that he was acting beyond power. Nothing in what was found by the judge to have happened, and nothing that was revealed in the evidence, warranted the Full Court in making a finding that the appellant knew or was reckless to the possibility that what he was doing was without power for want of procedural fairness let alone making a finding of want of honesty on his part. And yet that is what the Full Court found.

18.58

In Commonwealth v Fernando (2012) 200 FCR 1; 287 ALR 267, the

respondent had been granted permanent residency in Australia in 1995, but in 1998 was convicted of sexual assault and sentenced to eight years imprisonment. The Department of Immigration served notice upon him asking for submissions within 14 days as to why his visa should not be cancelled. The respondent sent his submissions within the time period, but his visa was cancelled before the submissions were received. The evidence was that it was known that the respondent had made submissions. The acting Minister was aware that the respondent was to be released from gaol on 5 October 2003, and that it was desirable that the visa be cancelled before that date so the respondent could be taken immediately to the immigration detention centre upon his release. The acting Minister, whose appointment was to expire on 4 October, cancelled the visa on 3 October. Siopis J of the Federal Court found in the respondent’s favour, stating (Fernando v Commonwealth (2010) 276 ALR 586 at [185]): … at the time that the acting minister made the cancellation decision on 3 October 2003, he knew [the applicant] had not been afforded procedural fairness, that it was, therefore, beyond his power to cancel [the applicant’s] visa, and that by making the cancellation decision in those circumstances he would be acting unlawfully. Further, I find that with the knowledge of those matters, the acting minister proceeded to cancel [the applicant’s] visa, rather than adjourn the making of that decision to await the arrival and consideration of [the applicant’s] submissions. I find that he proceeded to make the decision on that day for the very purpose of ensuring that [the applicant] would be taken into immigration detention immediately on his release from Acacia prison on 5 October 2003, and with the intention that this should happen.

However, on appeal, the Full Federal Court of Australia held that Siopis J had erred in the way he sought to draw inferences concerning the acting Minister’s knowledge. At [130], the court stated: [page 465] A finding that a Commonwealth government minister has deliberately exercised an important statutory power knowing that, in doing so, he was acting unlawfully is properly characterised as grave.

The court held that the evidence revealed conflicting inferences and

therefore the necessary standard of proof as to intention had not been satisfied. See also Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513. 18.59 The High Court in Northern Territory v Mengel (1995) 185 CLR 307; 129 ALR 1 suggested that the mental element required in misfeasance in public office might be analogous to that which is required for imposing liability on private individuals for the intentional infliction of harm as, for example, with the tort of inducing breach of a contract. If this approach is correct, then ‘misfeasance in public office is not confined to actual knowledge but extends to the situation in which a public officer recklessly disregards the means of ascertaining the extent of his or her power’: at CLR 347; ALR 19. It was unnecessary to finally decide the point because the most that the respondent claimed was that the stock inspection officers ought to have known that they lacked the authority to impose restrictions on the movement of Mengel’s cattle. In the absence of at least a reckless indifference as to the extent of their powers, the officers were not liable for the tort of misfeasance in public office.

Public Officer in Purported Discharge of Duty 18.60 In Northern Territory v Mengel (1995) 185 CLR 307 at 355; 129 ALR 1 at 25, Brennan J quoted from Henly v Mayor of Lyme (1828) 5 Bing 91; 130 ER 995 at 1001 to identify the class of public officers: … if a man takes a reward, whatever be the nature of that reward, whether it be in money from the crown, whether it be in land from the crown, whether it be in lands or money from any individual, for the discharge of a public duty, that instant he becomes a public officer.

Therefore ‘public officer’ has a wide meaning. In Northern Territory v Mengel, the employees of the Department of Primary Industries and Fisheries were public officers; in Sanders v Snell (1998) 196 CLR 329; 157 ALR 491, the Minister for Education and Tourism was a public officer; and in Farrington v

Thomson [1959] VR 286, the defendants were police officers. In Cannon v Tahche (2002) 5 VR 317, it was held that a barrister and an employed solicitor in the Office of Public Prosecutions were not public officers. However, a judicial officer is a public officer: Rawlinson v Rice [1998] 1 NZLR 454 (a District Court judge). Under this tort, the public officer is personally liable: Northern Territory v Mengel at CLR 347; ALR 19. See also Moder v Commonwealth; Sochorova v Commonwealth (2012) 261 FLR 396 at [73], where it was noted: … a case of misfeasance in public office cannot be built upon a foundation that is a composite of the conduct of a number of individual officers, let alone a department or a statutory tribunal.

[page 466] 18.61 The officer must be acting in the discharge of their duties, that is, exercising their public functions: Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513.

Damage 18.62 As an action on the case, the plaintiff must have suffered damage. The damage must have been caused by the public officer’s unlawful or unauthorised act: Northern Territory v Mengel (1995) 185 CLR 307; 129 ALR 1; Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1; [2001] 2 All ER 513. 18.63 Whether the damage must be foreseeable is not clear. In Northern Territory v Mengel, the joint judgment refers to the foreseeability of the damage in relation to the act that the public officers know or ought to know is beyond their power. Their Honours refer to Bourgoin SA v Ministry of Agriculture [1986] QB 716 at 777, stating ‘liability requires an act which the

public officer knows is beyond power and which involves a foreseeable risk of harm’: at CLR 347; ALR 19. However, Brennan J was of the opposite view: Foreseeability of damage to another by one’s own conduct is the factor which warrants the imposition of a duty of care to the other when engaging in the conduct. But the tort of misfeasance in public office is not concerned with the imposition of duties of care. It is concerned with conduct which is properly to be characterised as an abuse of office and with the results of that conduct. Causation of damage is relevant; foreseeability of damage is not: at CLR 358; ALR 27.

Further Reading M Aronson, ‘Misfeasance in Public Office: A Very Peculiar Tort’ (2011) 35 MULR 1. R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Chs 16 and 25. T Cockburn and M Thomas, ‘Personal Liability of Public Officers in the Tort of Misfeasance in Public Office Pts I and II’ (2001) 9 TLJ 80 and 245. A Doecke, ‘Misfeasance in Public Office: Foreseen and Foreseeable Harm’ (2014) 22 TLJ 20. N Foster, ‘The Merits of the Civil Action for Breach of Statutory Duty’ (2011) 33 Syd LR 67. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 10.

1.

For an examination of the history of the action, see N Foster, ‘The Merits of the Civil Action for Breach of Statutory Duty’ (2011) 33 Syd LR 67.

2.

See J L R Davis, ‘Farewell to the Action for Breach of Statutory Duty?’ in N J Mullany and A M Linden (eds), Torts Tomorrow: A Tribute to John Fleming, LBC Information Services, Sydney, 1998, p 69.

3.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at

.

[page 467]

Chapter 19 Misrepresentation in Torts — Negligence and Deceit 1

Introduction

19.1 As discussed in Chapter 10, where an act or omission caused economic loss without physical damage to the property of the plaintiff, no duty of care was owed: Electrochrome Ltd v Welsh Plastics Ltd [1968] 2 All ER 205. Therefore, recovery in negligence based on a negligent misrepresentation was not allowed by the courts unless the damage suffered was physical: Le Lievre v Gould [1893] 1 QB 491; Grange Motors (Cwmbran) Ltd v Spencer [1969] 1 WLR 53. The exceptions to this were: a fiduciary duty had been broken (Nocton v Lord Ashburton [1914] AC 932; Woods v Martins Bank Ltd [1959] 1 QB 55); there was a statutory right; or the misrepresentation constituted a term of a contract attracting contractual remedies for breach. 19.2 However, not all misrepresentations are negligent; they may be fraudulent or innocent. The law permitted a plaintiff to recover for economic loss arising from a fraudulent misrepresentation through the action in deceit: Derry v Peek (1889) 14 App Cas 337. If it was an innocent misrepresentation, a representee may rescind a contract within a reasonable time, but there is no claim in damages: Redgrave v Hurd (1881) 20 Ch D 1. This chapter considers negligent and fraudulent misrepresentation.

19.3 The actions of negligent misrepresentation and deceit have become less common with the enactment of consumer protection legislation, currently the Australian Consumer Law (previously the Trade Practices Act 1974 (Cth)). The Australian Consumer Law provides a remedy for misleading or deceptive conduct, and misrepresentations fall within this ambit: see 19.92.

2

Actionable Misrepresentations

19.4 A representation may be words or gestures or conduct: Horsfall v Thomas (1862) 1 H & C 90; 158 ER 813; Grange Motors (Cwmbran) Ltd v Spencer [1969] 1 WLR 53. To be an actionable misrepresentation at common law, the representation must be false and [page 468] relate to a fact, past or present. Whether a representation is false is determined objectively: John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656. Therefore, it is the sense in which a reasonable person, in the position of the representee, would have understood the representation which is relevant for this first element of the action: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 69 ALJR 629. In Tipperary Developments Pty Ltd v Western Australia (2009) 258 ALR 124, the court had to assess the respondent’s statement that the merchant bank it required the appellant to deposit $50 million with, was ‘basically financially sound’. The court held (at [203]) that it was: … sufficient, but not essential to demonstrate that, based on what [the Assistant UnderTreasurer] knew or ought to have known, [the merchant bank] was financially unsound. It is also sufficient if the appellant demonstrates that, based on what [the Assistant Under-Treasurer] knew or ought to have known, there was no reasonable basis to positively state that [the merchant bank] was financially sound …

19.5 As a general rule, silence or mere failure to disclose the truth, cannot amount to a misrepresentation: Peek v Gurney (1873) LR 6 HL 377. However, this view as to silence must be qualified. Setting out a portion only of the truth and leaving the rest out may amount to a misrepresentation of the total facts: Curtis v Chemical Cleaning & Dyeing Co [1951] 1 KB 805; Dimmock v Hallett (1866) LR 2 Ch App 21; Awaroa Holdings Ltd v Commercial Securities and Finance Ltd [1976] 1 NZLR 19. In Felton v Johnson (2000) Aust Torts Reports ¶81-559, promotional brochures and a video were given to prospective franchisees of a product to be used on glass. The promotional material indicated that the product had been used by many companies, but did not reveal that these were only trials and no further contracts had been obtained. The High Court of New Zealand held that this information was only telling half of the story and amounted to a misrepresentation: at 63,713. 19.6 A mere statement of intention, under some circumstances, may amount to a misrepresentation of the fact of the presently held intention if there is, in fact, no presently held intention to do that which is represented: Edgington v Fitzmaurice (1885) 29 Ch D 459. Similarly, a statement of opinion may be a misrepresentation if, in fact, the representor has no honest belief in the opinion: Bisset v Wilkinson [1927] AC 177. In Middleton v Aon Risk Services Australia Ltd [2008] WASCA 239 at [19]– [20], it was explained: In order to be a representation at common law there must be a statement relating to a fact, past or present. A statement by a person as to his or her intention or statement of mind is a statement of fact and thus a representation. The statement of an opinion can be a statement of fact. It is ordinarily at least a statement of fact that the person actually holds the opinion. It can also be a statement of fact that the person has reasonable grounds for holding that opinion.

19.7 In Brown v Raphael [1958] Ch 636 at 641; 2 All ER 79 at 81, Lord Evershed MR held that a statement of opinion was a statement of fact to the

extent that it is an assertion that the representor does in fact have that opinion. [page 469] 19.8 Statements of law may be actionable if the representor was in the position of giving such advice, for example a legal practitioner to a client: Eade v Vogiazopoulos [1999] 3 VR 889. The dividing line between fact and law is a fine one and a misrepresentation as to the state of law in a particular case might be regarded as a misrepresentation of fact for some purposes.

3

Negligent Misrepresentation

19.9 Actions of negligent misrepresentation are a particular category of novel duty as the loss suffered by the plaintiff is pure economic loss: see 10.77. As an action in negligence, a plaintiff (the recipient) must establish: a duty of care was owed by the defendant (the representor); the duty of care was breached; and damage was suffered as a result of the breach.

Historical Background 19.10 Notwithstanding the general principles of negligence enunciated in Donoghue v Stevenson [1932] AC 562, there was no immediate recognition of the right to recover for pure economic loss resulting from reliance upon a negligent misstatement. This was largely due to policy considerations, in particular the apprehension that to recognise such a right would result in open-ended liability to an indeterminate class of persons, all of whom might satisfy the test of reasonable foreseeability established under the neighbour

principle. Claims could also be out of proportion to the degree of culpability concerned. As stated by Lord Pearce in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 534: Negligence in word creates problems different from those of negligence in act. Words are more volatile than deeds. They travel fast and far afield. They are used without being expended and take effect in combination with innumerable facts and other words. Yet they are dangerous and can cause vast financial damage.

The judgment of Denning LJ in Candler v Crane Christmas & Co [1951] 2 KB 164, though in dissent, provided the first principled attempt to recognise a duty of care that would permit recovery for economic loss resulting from negligent advice. It provided a more limited test than reasonable foresight so as to confine the liability that, potentially, could result from an application of the reasonable foresight test alone. Lord Denning took the view that a duty arose because the accountant prepared the accounts containing the negligent statement for a particularly foreseeable party which, in that case, was the particular plaintiff in the transaction in question: at 182–4. 19.11 It was not until Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (Hedley Byrne) that the House of Lords, reconsidering the older authorities and expressly overruling the majority decision in Candler v Crane Christmas & Co [1951] 2 KB 164, recognised a limited duty of care in respect of negligent statements causing economic loss. The plaintiffs were a firm of advertising agents and the defendants were merchant bankers. The plaintiffs had placed some small orders for advertising for a client. Later, they [page 470] received proposals for a very large advertising program supported by an indirect credit reference from the client’s then bankers and placed credit orders for the client on terms which attracted personal liability for the agents. They became uneasy and asked their bank to obtain a financial report from

the client’s new bankers. Their bank subsequently received an oral report of creditworthiness ‘in confidence and without responsibility’. A letter of confirmation was then received by their bank with a similar disclaimer. Following this, a second round of written reports was requested and given. In reliance on the positive nature of the credit statements, the agents incurred personal liability which resulted in a loss when the client went into liquidation. 19.12 The duty of care may have been recognised in Hedley Byrne, but it was a circumscribed one, limited to proof of a ‘special relationship’. In addition, on the facts before the House of Lords, an express disclaimer was held to be effective so as to avoid liability for the negligent misrepresentation. The traditional concern at opening the floodgates was evident in a number of the speeches. Lord Reid stated (at 482–3): Apart altogether from authority, I would think that the law must treat negligent words differently from negligent acts. The law ought so far as possible to reflect the standards of the reasonable man, and that is what Donoghue v Stevenson sets out to do. The most obvious difference between negligent words and negligent acts is this. Quite careful people often express definite opinions on social or informal occasions even when they see that others are likely to be influenced by them; and they often do that without taking that care which they would take if asked for their opinion professionally or in a business connection … Another obvious difference is that a negligently made article will only cause one accident, and so it is not very difficult to find the necessary degree of proximity or neighbourhood between the negligent manufacturer and the person injured. But words can be broadcast with or without the consent or the foresight of the speaker or writer. It would be one thing to say that the speaker owes a duty to a limited class, but it would be going very far to say that he owes a duty to every ultimate “consumer” who acts on those words to his detriment. It would be no use to say that a speaker or writer owes a duty but can disclaim responsibility if he wants to. He, like the manufacturer, could make it part of a contract that he is not to be liable for his negligence: but that contract would not protect him in a question with a third party, at least if the third party was unaware of it. So it seems to me that there is good sense behind our present law that in general an innocent but negligent misrepresentation gives no cause of action.

19.13

Although the terminology used by their Lordships differed, the

general principle underlying the different statements was that if someone possessed of a special skill undertook, quite irrespective of contract, to apply that skill for the assistance of another person who relied upon it, a duty of care would arise. None of their Lordships was prepared to extend the ordinary Donoghue v Stevenson [1932] AC 562 principle to a case of a representation, for the reason given by Lord Pearce, that ‘[i]f the mere hearing or reading of words were held to create proximity there might be no limit to the persons to whom the speaker or writer would be liable’: Hedley Byrne at 534. [page 471] 19.14 The liability which emerged from the judgments was a limited one, dependent not merely on the notion of reasonable foresight but circumscribed by the need for a ‘special relationship’ between the parties. That ‘special relationship’ was, in turn, dependent upon the interplay between three fundamental factors: 1.

assumption of responsibility by the giver of the advice;

2.

reasonable reliance by the receiver; and

3.

the presence or absence of any disclaimer concerning liability for the giving of the advice.

19.15 The House of Lords’ decision of Hedley Byrne found favour immediately in Australia. In Evatt v Mutual Life & Citizens Assurance Co Ltd (1967) 69 SR (NSW) 50, the plaintiff claimed he was given incorrect information and advice concerning the security of actual and projected investments in a company which was a subsidiary of the defendant assurance company and which, subsequently, went into liquidation. The decision of Hedley Byrne was explained and applied by the Court of Appeal of New South Wales. On appeal to the High Court, regard was had to the specific statements

in Hedley Byrne as guides rather than binding statements of the new rule: Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3. The judgments given by a majority of the High Court adopted a less restrictive approach than the Privy Council in the subsequent appeal: (1970) 122 CLR 628; [1971] AC 793. 19.16 A decade later, in L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385, the High Court demonstrated its preference for its own view over that of the Privy Council. 19.17 Policy reasons may exist for excluding certain persons from the relationship; for example, barristers in Australia will not, under existing law, fall within the special relationship in respect of those matters for which a limited immunity for court work is still recognised: Gianarelli v Wraith (1988) 165 CLR 543; 81 ALR 417; Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92.

Duty of Care 19.18 Negligent misrepresentation is now recognised as a discrete category for which liability may be imposed for pure economic loss, provided a duty of care may be established: Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 at [73] per Gaudron J; Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [7] per Gleeson CJ; Hill (t/as R F Hill & Associates) v Van Erp (1997) 188 CLR 159 at 170–1; 142 ALR 687 at 694–5 per Brennan CJ; San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 355; 68 ALR 161 at 169 per Gibbs CJ, Mason, Wilson and Dawson JJ. 19.19

In determining whether a duty of care is owed, regard must be had

to all of the circumstances of the case. Although reasonable foresight still plays a part in determining [page 472] the existence of the relationship giving rise to the duty of care, it has never been accepted as the sole determinant: see Chapter 10. In addition to reasonable foresight, the ‘special relationship’ for the establishment of a duty of care, as originally identified in Hedley Byrne [1964] AC 465, requires an assumption of responsibility by the speaker and reasonable reliance by the recipient upon the misrepresentation: Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634. 19.20 The characteristics of the special relationship were stated in Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 571; [1969] ALR 3 at 12 by Barwick CJ: … I turn now to consider what are the features of the special relationship in which the law will import a duty of care in utterance by way of information or advice. First of all, I think the circumstances must be such as to have caused the speaker or be calculated to cause a reasonable person in the position of the speaker to realize that he is being trusted by the recipient of the information or advice to give information which the recipient believes the speaker to possess or to which the recipient believes the speaker to have access or to give advice, about a matter upon or in respect of which the recipient believes the speaker to possess a capacity or opportunity for judgment, in either case the subject matter of the information or advice being of a serious or business nature. It seems to me that it is this element of trust which the one has of the other which is at the heart of the relevant relationship. I should think that in general this element will arise out of an unequal position of the parties which the recipient reasonably believes to exist. The recipient will believe that the speaker has superior information, either in hand or at hand with respect to the subject matter or that the speaker has greater capacity or opportunity for judgment than the recipient. But I do not think it can be said that this must always be so, that inequality in these respects must necessarily in fact be present or be thought to be present if the special relationship is to exist. Then the speaker must realize or the circumstances be such that he ought to have realized that

the recipient intends to act upon the information or advice in respect of his property or of himself in connexion with some matter of business or serious consequence. Of course, utterances in the course of social intercourse with no thought of legal consequence could not satisfy such a condition. Further, it seems to me that the circumstances must be such that it is reasonable in all the circumstances for the recipient to seek, or to accept, and to rely upon the utterance of the speaker. The nature of the subject matter, the occasion of the interchange, and the identity and relative position of the parties as regards knowledge actual or potential and relevant capacity to form or exercise judgment will all be included in the factors which will determine the reasonableness of the acceptance of, and of the reliance by the recipient upon, the words of the speaker.

Gaudron J stated in Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 at [74]: So far as concerns negligent misstatement, the circumstances which attract a duty of care have been identified as “known reliance (or dependence) or the assumption of responsibility or a combination of the two”. In that context, the word “known” includes circumstances in which reliance or dependence ought to be known. Moreover, it is not essential that the person making the statement know the precise use to which the information will be put, so long as he or she knows or ought to know that it will be used for a serious purpose. [footnotes omitted]

[page 473] 19.21 Over 50 years after the decision of Hedley Byrne [1964] AC 465, the three factors identified as fundamental to establishing a ‘special relationship’ which give rise to a duty of care for negligent misrepresentation remain as: 1.

an assumption of responsibility by the speaker;

2.

reasonable reliance by the recipient; and

3.

the existence of any disclaimer.

The two factors of assumption of responsibility and reasonable reliance are intertwined and very closely linked.

Current approach as a novel duty and the ‘special relationship’ 19.22

An examination of the factors giving rise to a ‘special relationship’

reveals that they fall within the ambit of the current approach to novel duties: see Chapter 1.1 The assumption of responsibility by the defendant may be equated with the concept of control under the current approach to novel duties: Perre v Apand Pty Ltd (1999) 198 CLR 180; 164 ALR 606 at [33]. The vulnerability of the plaintiff may be relevant when considering whether the reliance was reasonable or whether the plaintiff could have taken steps to protect their interests: see Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; 205 ALR 522 at [24]. In ABN AMRO Bank NV v Bathurst Regional Council (2014) 2234 FCR 1; 309 ALR 445 at [598], the Full Court of the Federal Court of Australia held: In the field of negligent misstatement, vulnerability is the consequence of, not an additional criterion of, knowledge (actual or which a reasonable person would have) of reasonable reliance by an ascertainable class of persons.

Assumption of responsibility 19.23 ‘Assumption of responsibility’ refers to whether the speaker knew, or ought to have known, that they were being trusted by the recipient to give the information or advice and that they knew, or ought to have known, that the recipient intended to rely upon it: Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 571; [1969] ALR 3 at 12. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 at [74], Gaudron J stated: So far as concerns negligent misstatement, the circumstances which attract a duty of care have been identified as “known reliance (or dependence) or the assumption of responsibility or a combination of the two”. In that context, the word “known” includes circumstances in which reliance or dependence ought to be known. Moreover, it is not essential that the person making the statement know the precise use to which the information will be put, so long as he or she knows or ought to know that it will be used for a serious purpose.

19.24 Whether the defendant has assumed responsibility for the advice or information is determined objectively and is considered in light of all of the circumstances: Williams v Natural Life Health Foods Ltd [1998] 1 WLR 830; [1998] 2 All ER 577. Therefore, to determine whether there is an assumption of responsibility, the actual knowledge of the

[page 474] speaker and what a reasonable person would know in the position of the speaker must be identified. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634, the respondent provided an estimate to the appellants of $2.5 million as the cost of connecting water to land being developed. It was not the usual practice for the respondent to provide such estimations. Because of the high cost of the water connection, it was decided by the financing bank that the development was not viable and the development did not go ahead. The land had to be sold off to repay the loan and was sold at a much lower price than it would have been if it had been subdivided. The respondent later discovered that the estimate was excessive, an estimate of $803,000 being provided. The appellants argued that the respondent had been negligent in providing the overstated estimate and that, as a result, they had suffered economic loss. The High Court held, by a 4:3 majority, that no duty of care was owed in giving the estimate for the connection of water. Referring to Barwick CJ’s test in Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3, that the speaker must realise, or ought to realise, that the recipient intends to act upon the information or advice, the majority held that the respondent had no appreciation, or could not be expected to appreciate, the implications of making an error: at [48]. It was held that there was no assumption of responsibility by the respondent on the facts. The Water Board had provided an estimate only, the actual cost was dependent upon when the work was done — work that at the time of the estimate had not commenced — and, therefore, the Water Board could not have known, nor should it have known, that the appellant intended to rely upon the estimate: at [82]–[86]. 19.25 Evidence that there was an assumption of responsibility may include that the speaker responded to a request for information or advice as well as the fact that the speaker possessed a special skill to which the information or

advice was related: L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385. However, the information or advice must be of a business or serious nature: Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3; Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634. This evidence also relates to reasonable reliance: see 19.27. 19.26 If the speaker had some financial interest in the advice, this may provide the basis for a finding of assumption of responsibility: Day v Ost [1973] 2 NZLR 385; O’Leary v Lamb & Lensworth Finance Ltd (1973) 7 SASR 159. Nevertheless, financial interest alone was not sufficient to establish the relationship under the restrictive view, as seen from a number of cases involving estate agents who had clear potential financial interest through payment of commission: Barrett v J R West Ltd [1970] NZLR 789; Presser v Caldwell Estates Pty Ltd [1971] 2 NSWLR 471; Richardson v Norris Smith Real Estate Ltd [1971] 1 NZLR 152; but compare Rawlinson & Brown Pty Ltd v Witham (1995) Aust Torts Reports ¶81-341.

Reasonable reliance 19.27 To establish a duty of care for negligent misrepresentation, it must have been reasonable for the recipient of the information or advice to have relied upon it in light of all of the circumstances: Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 at [47] and [75]; Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 571; [1969] [page 475] ALR 3 at 12. In Curran v Greater Taree City Council (1992) Aust Torts Reports ¶81-152, the defendant council had approved building plans and issued a building permit for a cottage, even though it knew that there was a stormwater box culvert on the land in question. The cottage was later built

over the culvert and was bought by the plaintiff. The plaintiff knew, when she bought the cottage, that it had been built over the culvert but relied on the fact that the defendant council had approved the building plans. The foundations of the cottage above the culvert later subsided, causing damage. The Court of Appeal of New South Wales held that, although the plaintiff had, in fact, relied on the defendant’s approval of the building plans, the reliance was not reasonable in the circumstances because she knew of the presence of the culvert. 19.28 Vulnerability of the plaintiff may be relevant when considering reasonable reliance. In Fick v Groves [2010] QSC 89 at [195], the plaintiffs argued that they were ‘vulnerable to suffer harm if the representations made to them by the defendants were false’. In that case, the plaintiffs alleged that the defendants had made negligent misrepresentations about the nut and avocado farm they purchased in respect of the trees on the farm and the estimated harvest. It was alleged that due to the short timeframe imposed upon them to make a decision to purchase, they were not able to verify the representations. The court considered how the plaintiff could have sought the inclusion of a special condition in the contract of sale, even though the defendants had indicated in the contract that they were not willing to warrant the accuracy of the information provided. Applegarth J said (at [197]–[198]): If the defendants had declined to include a suitably-qualified clause to the effect that they had taken reasonable care in arriving at the production figures, then the plaintiffs were not entirely vulnerable to the consequences of the defendants’ want of reasonable care. They had the choice to not make an offer to purchase, or to offer a reduced price that reflected the defendants’ refusal to either warrant the figures or to warrant that they had taken reasonable care in arriving at them. Accordingly, I am not persuaded that the plaintiffs were unable to protect themselves from the loss that would arise from the defendants’ failure to take reasonable care.

In Chew v Amanatidis [2009] SASC 334, the respondent was a person with significant business experience. The respondent had provided an indemnity to investors, allegedly on the assurance of the appellant of the soundness of the investment which turned out to be a scam. On appeal, the appellant

argued that there was no reasonable reliance to give rise to a duty of care. This was based upon the fact that the appellant was not the respondent’s solicitor or accountant, the respondent could have obtained his own legal advice and that the respondent understood, by virtue of his own business experience, the effect of the indemnity. White J (in dissent) stated (at [98]): The duty of care to avoid giving incorrect information, opinions or advice may be owed as much to the educated and experienced as it is to the illiterate, naïve or ingenuous. Indeed, it may [be] because of their education and experience that some persons do seek out information and advice.

However, the majority held that no special relationship existed between the parties, referring to the significant business experience of the respondent. The majority was of the opinion that the ridiculous high returns promised, approximately 1300 per cent per annum, [page 476] would have sent ‘alarm bells ringing and resonating loudly to any potential investor’ and that such predicted returns belied ‘any suggestion of an honest, legitimate or genuine investment’: at [10]. Therefore, taking into account the respondent’s business experience, there was no reasonable reliance in the circumstances: at [21] and [42]. See also ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR; 309 ALR 445, where the court held that in the circumstances a licensed financial services company was vulnerable as well as public authority councils. 19.29 It is not necessary that the defendant intended to induce the plaintiff to act, or refrain from acting, in reliance on the representation. Rather, an intention to induce reliance is merely one of the various means by which it may be shown that the plaintiff’s reliance upon the statement was reasonable: Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997)

188 CLR 241; 142 ALR 750 (Esanda). Moreover, Dawson J in Esanda considered that an intention to induce reliance may exist without necessarily giving rise to a duty of care: A person who gives information or advice to another intending to induce the other to a course does not necessarily undertake to be careful in the information he gives or the advice that he offers. The occasion for the advice or information may be of a purely social nature inconsistent with the assumption of any responsibility: at CLR 257; ALR 761.

Inducement may, nevertheless, constitute a significant, even critical, factor because, as McHugh J expressed it: … absent a statement to a particular person in response to a particular request for information or advice or an assumption of responsibility to the plaintiff for that statement, it will be difficult to establish the requisite duty of care unless there is an intention to induce the recipient of the information or advice, or a class to which the recipient belongs, to act or refrain from acting on it. Mere knowledge by a defendant that the information or advice will be communicated to the plaintiff is not enough: at CLR 275; ALR 776.

19.30 In San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340; 68 ALR 161, the plaintiff developers had considered a redevelopment plan, published in 1968 by the New South Wales State Planning Authority and the Sydney City Council, which was in place for several years until it was abandoned in 1972. The developers claimed they had acquired land in the inner city area of Woolloomooloo in reliance upon the plan and claimed they had suffered financial loss because of the negligent preparation of the plan, specifically, in failing properly to investigate and discover the incapacity of the transport system to accommodate the projected workforce, rendering implementation of the plan impossible. The plaintiff developers succeeded before the trial judge but not before the New South Wales Court of Appeal or the High Court. The majority of the High Court stated that reliance was the ‘cornerstone of liability for negligent misstatement’: at CLR 357; ALR 170. Their Honours stated (at CLR 355; ALR 169): When the economic loss results from negligent misstatement, the element of reliance plays a

prominent part in the ascertainment of a relationship of proximity between the plaintiff and the defendant, and therefore in the ascertainment of a duty of care …

[page 477] In cases of negligent misstatement, reliance plays an important role, particularly so when the defendant directs his statement to a class of persons with the intention of inducing members of the class to act or refrain from acting, on reliance on the statement, in circumstances where he should realise that they may thereby suffer economic loss if the statement is not true.

See also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 462. 19.31 From these cases it can be ascertained that in assessing whether the reliance was reasonable, account must be had of: the nature of the advice or information; the circumstances of how the advice or information was given; and the identity, position and skill of the representor. This is not an exhaustive list: ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1; 309 ALR 445 at [574]. See also Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634 at [47]. 19.32 Nature of the advice or information The advice or information must be of a serious or business nature: Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 572; [1969] ALR 3 at 12 per Barwick CJ. In Mutual Life & Citizens Assurance Co Ltd v Evatt, the advice and information was about the security of the plaintiff’s assets — clearly of a serious and business nature; see also Smith v State Bank of New South Wales Ltd (2001) 188 ALR 729 (investment advice). In L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385, the information as to future road widening was of a serious nature as it affected the value of the property being purchased by the plaintiff. A department of state, from whom advice is sought in an area of the department’s singular

expertise, for example in a complex area of law and practice of customs and excise tariff regimes, was held to be liable if reliance was placed on it with likelihood of economic loss in Comptroller of Customs v Martin Square Motors Ltd [1993] 2 NZLR 289. In Rentokil Pty Ltd v Channon (1989) 19 NSWLR 417, the purchaser was awarded damages after purchasing a house in reliance on a pest report as the house had to be demolished because of pest infestation. 19.33 Circumstances surrounding provision of advice or information When considering the surrounding circumstances, how the advice or information was obtained by the plaintiff may be relevant. Since San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340; 68 ALR 161, there is no convincing reason for confining the liability for negligent misrepresentation to instances of negligent statement made by way of response to a request by the plaintiff for information or advice. In that case, the majority held (at CLR 356–7; ALR 170): The existence of an antecedent request for information or advice certainly assists in demonstrating reliance, which is a cornerstone of liability for negligent misstatement. However, such a request is by no means essential though it has been suggested that instances of liability for misstatement volunteered negligently will be “rare”.

19.34 However, where the information is volunteered to induce the plaintiff to act, or refrain from acting, then it may be argued that it is not necessary to prove the reasonableness [page 478] of the reliance: San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 357–8; 68 ALR 161 at 169–70. See also Esanda (1997) 188 CLR 241 at 256–7; 142 ALR 750 at 761.

19.35 In Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 571; [1969] ALR 3 at 12, the High Court noted that no duty of care would arise if the advice or information was provided in a casual or social context where the gravity of the inquiry was not evident or made clear. Therefore, for reliance to be reasonable, the advice must be given in a serious or business context, although even there it could be ‘off the cuff’, as in Howard Marine and Dredging Co Ltd v A Ogden & Sons (Excavations) Ltd [1978] QB 574. In Mohr & Mohr v Cleaver & Cleaver [1986] WAR 67, the defendant accountant was held not to owe a duty of care for investment advice requested by the plaintiff over the telephone as ‘off-the-cuff’ or ‘kerbside opinion’. In Mbakwe v Sarkis [2009] NSWCA 330 at [12], the existing business relationship between the plaintiff and defendant was held to negate any argument that the advice given by the defendant had been ‘given as a friend on a social or casual basis where legal relationships were not in contemplation’. Although the plaintiff had retained the defendant as a financial adviser, over the years the defendant had informed the plaintiff of investment opportunities which the plaintiff had acted upon. The court held that the negligent advice given by the defendant was in the scope of their business relationship and clearly was of a serious and business nature: at [20]. 19.36 In Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634, the majority of the High Court held that it was not reasonable, in the circumstances, for the appellant to have relied upon the statements of the respondent when providing an estimate for the cost of water connection. Gleeson CJ, Gummow and Hayne JJ stated (at [49]): … the circumstances here were not such as to make it reasonable for [the appellant] to rely upon the “ball-park” figure to meet the bank’s demand for a costings estimate. The identity and relative position of the parties were such that the relationship between the board and [the appellant] was one in which the board plainly was a reluctant participant; the board did not wish to give [the appellant] information and it resisted giving it until eventually it “caved in”. In that difficult situation [the appellant], at all material times, had access to expert advice, which he utilised. These circumstances and the provisional nature of the estimate eventually provided in

the letter of 21 November made it unreasonable to posit a duty upon the board in respect of the use [the appellant] made of the estimate in his dealings with the bank.

19.37 Identity, position and skill The requirement of reliance for negligent misstatement need not be specifically pleaded where the relationship established is one between client and professional, because reliance will necessarily be implied in such a relationship: Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27. 19.38 Generally, it will be reasonable to rely on advice or information if the representor possesses a special skill. In Fick v Groves [2010] QSC 89 at [192], it was stated: The fact that a defendant has special expertise or knowledge is not, in itself, sufficient to establish reasonable reliance. A duty of care may be imposed by law, however, where a statement is made with the intention of inducing the plaintiff to act in a particular way, especially where the defendant gives an unqualified response to a request for information.

[page 479] In Norris v Sibberas [1990] VR 161, the court held that statements by a real estate agent as to the viability of a motel could not be reasonably relied upon. Marks J stated that, for there to be reasonable reliance, the representor must profess to have some special skill which is applied to assist another: at 172. See Rawlinson and Brown Pty Ltd v Witham (1995) NSW ConvR ¶55-740, where the real estate agent was held liable in negligence for the statement made about the long-term capacity of the water bore on the property being purchased, as he knew that this was critical to the value of the property. The information provided was based upon his knowledge of similar properties in the area, not upon the particular water bore. 19.39 It is not necessary that the defendant be in the business of giving advice or information. In Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3, the High Court was of the view that there

was no need for the defendant to be in the business of giving advice in order for a duty of care to be found. The possession of a special skill is merely another circumstance for the court to take into account when determining whether the reliance by the plaintiff was reasonable. This was not the opinion of the Privy Council, where it was held by a majority, that it was a necessary characteristic of the special relationship giving rise to the special duty of care, that the party giving the advice carry on the business of giving advice or let it be known that he or she claimed to possess skill and competence in the field in question: Mutual Life & Citizens Assurance Co Ltd v Evatt (1970) 122 CLR 628 at 637; [1971] AC 793 at 805. 19.40 Statutory authorities are often the sole repository for information required by the public, for example searches carried out before the completion of a contract to purchase land. There is an expectation that the information requested will be provided in compliance with the proper procedures as set by that authority: Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460. If incorrect information is given in response to an inquiry and damage is suffered as a result, the authority may be liable for negligent misrepresentation.2 In L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385, the appellants made inquiries of a council as to whether there were any road-widening proposals that would affect the land being purchased by the plaintiff. A certificate was issued by the council without any endorsement concerning any road widening, this being interpreted that there was no proposal. The appellants bought the property on this basis but, in fact, there was a proposal to widen the road that would affect the property. The appellants would not have bought the land if the proposal was known. The High Court held that the council owed a duty of care in providing the information to the appellants and that the duty had been breached. Gibbs CJ stated (at CLR 235; ALR 392): From the standpoint of principle there is no difference between a person who carries on the business of supplying information and a public body which in the exercise of its public functions

follows the practice of supplying information which is available to it more readily than to other persons, whether or not it has a statutory duty to do so. In either case, the person giving

[page 480] the information to another whom he knows will rely upon it in circumstances in which it is reasonable for him to do so, is under a duty to exercise reasonable care that the information given is correct. A public body, by following the practice of supplying information upon which the recipients are likely to rely for serious purposes, lets it be known that it is willing to exercise reasonable skill and diligence in ensuring that the information supplied is accurate. In the circumstances, diligence might be more important than skill, although competence in searching for and transmitting the information must play a part. However, even if diligence only and not skill were required, a public body might be specially competent to supply material which it had in its possession for the purposes of its public functions.

19.41 However, it will not always be the case that the authority will be liable as reliance upon the information must be reasonable in the circumstances. If the authority is the sole repository of the information being sought, reliance will be more likely to be reasonable. In Tepko Pty Ltd v Water Board (2001) 206 CLR 1; 178 ALR 634, the majority held that it was not reasonable for the appellants to rely upon the estimate provided by the respondent. In that case, the respondent was not obliged to give an estimation of the cost of the water connection to the proposed development and had only done so under pressure. The court also noted that the appellants could have relied on their own experts as to the cost of the connection. Gaudron J stated (at [88]): The speculative nature of the venture and the uncertainty of the political and administrative processes which the appellants set in train serve to emphasise the unreasonableness of any reliance they may have placed on what was said or done by any particular participant in those processes.

If the defendant is a statutory authority, the civil liability legislation will also be relevant to the issue of a duty of care in negligent misrepresentation: see 10.120.

Reliance by third parties 19.42 Reliance is one of the control factors when arguing a duty of care for negligent misrepresentation and plays an important role. Policy considerations play an important role when considering imposing a duty of care for negligent misrepresentation, particularly concerns of indeterminate liability and opening the floodgates of litigation. The fear of indeterminate liability requires a court to identify the circumstances in which the maker of a statement may owe a duty of care to persons other than the person to whom the statement was directly and intentionally communicated. 19.43 In Esanda (1997) 188 CLR 241; 142 ALR 750, the High Court considered the issue of to whom the duty is owed. The plaintiff lent money to a company, Excel, relying on accounts that had been audited by the defendant. The accounts overstated the company’s assets, and it defaulted on the loan. On appeal to the High Court, the issue was whether the facts, as pleaded by the plaintiff, Esanda, were sufficient to support a finding that the defendant owed the plaintiff a duty of care in regard to its audit report on the company’s assets. The court unanimously held that reliance on the audit report was not sufficient, on its own, to give rise to a duty of care. As Dawson J expressed it (at CLR 254; ALR 759): The plea that Esanda was a member of a class of persons who might reasonably and relevantly rely on the Excel accounts and the auditors’ report was no more than a plea that it was foreseeable

[page 481] that carelessness in making the report might cause harm to Esanda. However, mere foreseeability of harm does not, where the only harm is pure economic loss, give rise to a duty of care.

Brennan CJ (at CLR 252; ALR 757) held that the pleadings were deficient

because they failed to satisfy the following requirements: … in every case, it is necessary for the plaintiff to allege and prove that the defendant knew or ought reasonably to have known that the information or advice would be communicated to the plaintiff, either individually or as a member of an identified class, that the information or advice would be so communicated for a purpose that would be very likely to lead the plaintiff into a transaction of the kind that the plaintiff does enter into and that the plaintiff would enter into such a transaction in reliance on the information or advice and thereby risk the incurring of economic loss if the statement should be untrue or the advice should be unsound. If any of these elements be wanting, the plaintiff fails to establish that the defendant owed the plaintiff a duty to use reasonable care in making the statement or giving the advice.

McHugh J stated (at CLR 281; ALR 780): This survey of authority in England, Canada, New Zealand and the United States shows that, absent some mutual relationship giving rise to an assumption of responsibility, the common law courts are reluctant to impose a duty of care on an auditor in favour of a third party unless the auditor intended that the audit report be given to the third party for a specific purpose. The trend is very much against expanding the liability of auditors for negligent misstatements. [footnotes omitted]

Later in his judgment, his Honour goes on to say (at CLR 289; ALR 787): … the result of extending liability will ordinarily be to impose a financial burden on the auditor out of all proportion to his or her comparative fault, and the risk of imposing that liability and burden may be contrary to the public interest. Moreover, the plaintiff has failed to prove that the demands of corrective justice require a remedy for the plaintiff. In these circumstances, the case for extending liability to cover cases like the present is not compelling. In the absence of cogent evidence that the public interest or corrective justice requires an extension of auditors’ liability to cases where no more appears than the auditor knows that the plaintiff might rely on the audited accounts and report, this Court should not extend the liability of auditors to such cases.

See also R Lowe Lippmann Figdor & Franck (a firm) v AGC (Advances) Ltd [1992] 2 VR 671 at 683. 19.44 In BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221 at 234, Wootten J stated: … persons to whom the Hedley Byrne [[1964] AC 465] duty is owed must usually be in some sense (the precise sense will no doubt present continuing problems) “identified or identifiable” persons or “… an identified or identifiable class of persons” (per Barwick CJ in Evatt ([(1968) 122 CLR 556] at 570)). A similar limitation may be necessary where what the defendant knows is not that the information or advice will be passed on to another who will act on it, but that it will be used by the recipient himself to act in the execution of an existing duty to another in a

way that may cause loss to that other. Probably in most cases the knowledge of an existing duty on the part of a recipient to the other person will be sufficient to make that other person identified or identifiable to a sufficient degree.

[page 482] In that case, a negligent valuation was relied upon by a trustee acting as the investment manager of a superannuation fund. The negligence led to some unit holders of the trust losing money. The defendant denied that it owed a duty of care to those unit holders as they were members of an unascertained class and that, if it did, it was protected by a disclaimer included in the valuation. The court held that although the unit holders were not known individually, they were a limited and ascertained class: at 235. The defendant knew that the plaintiff was the investment manager of a superannuation fund, that the trust had been set up for the purpose of investing in that fund and that the valuation was to be used and relied upon for that investment. 19.45 In Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 3) [2003] 1 Qd R 26, the respondent had a contract with a property developer whereby the respondent had agreed to pay a lump sum, based on the average of two valuations, for the completion of the construction, fitting out and leasing of the shopping centre. The appellant made a negligent valuation of a shopping centre which led to the respondent having to pay the developer an additional amount. The Queensland Court of Appeal held that the appellant owed the respondent a duty of care. McPherson JA stated (at [25]–[26]): In every case, it is, according to Brennan CJ [in Esanda Finance Corporation Ltd v Peak Marwick Hungerfords (Reg) (1997) 188 CLR 241], necessary to establish that the maker of the statement knew or ought reasonably to have known that it would be communicated to the plaintiff, either individually or as a member of an identified class; that it would be “very likely” to lead the plaintiff to enter into a transaction of the kind in question; and “very likely” that the plaintiff would do so in reliance on the information or advice, and thereby risk incurring economic loss if the statement was untrue or the advice unsound: Esanda v Peat Marwick. In the same case,

Gummow J, in the course of reviewing the American authorities went some way to recognising that the reasoning in Bily v Arthur Young & Co (1992) 834 P 2d 745 offered assistance in resolving the issues in the Esanda case (188 CLR 241, 307); and, although McHugh J was perhaps less enthusiastic (188 CLR 241, 280), both his Honour and Gummow J have since referred with evident approval to “equivalent to contract” in describing the source of the duty owed by a valuer to a financier with whom he was not in contractual relations but whom he expected would rely on his opinion. See Kenny & Good Pty Ltd v MQICA (1992) Ltd (1999) 73 ALJR 901, 911, 917–18. Not long before, in Hill v Van Erp (1997) 188 CLR 159, 233–4, Gummow J had also referred with favour to the concept of “linking conduct” adopted in the California decision. If some concept such as linking conduct or contractual equivalence is adopted here, [the respondent] has firm ground on which to base its claim for damages against [the appellant] for their negligent valuation … [the respondent] was not simply one person among many who could possibly be foreseen as likely to act on the [appellant’s] valuations. It was one of only two who were directly and immediately affected by delivery and receipt of the valuation …

See also Kestrel Holdings Pty Ltd (ACN 009 590 265) v APF Properties Pty Ltd (ACN 095 297 019) (2009) 260 ALR 418 (valuers knew or ought to have known reliance would be placed upon its valuations, even though they may not have known of the respondent specifically); ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1; 309 ALR 445 at [1260] (a class is not indeterminate if it is known and identified and liability and appellant not knowing the precise identity of the class, the exact number of members of the class or the exact loss does not equate to indeterminate liability). [page 483]

Disclaimers 19.46 The assumption of responsibility may be negatived or excluded by an appropriate disclaimer, as in Hedley Byrne [1964] AC 465. However, on the view that the duty of care arises by operation of law and not purely by virtue of a person’s personal and factual assumption of responsibility, courts are likely to take the view that speakers may not always exempt themselves from the performance of a duty. Rather, this would be a factor to be taken

into consideration in all the circumstances and might prevent a relationship arising if sufficiently potent. As Barwick CJ, in Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556 at 570; [1969] ALR 3 at 12, stated: The duty of care, in my opinion, is imposed by law in the circumstances. Because it is so imposed, I doubt whether the speaker may always except himself from the performance of the duty by some express reservation at the time of his utterance. But the fact of such a reservation, particularly if acknowledged by the recipient, will in many instances be one of the circumstances to be taken into consideration in deciding whether or not a duty of care has arisen and it may be sufficiently potent in some cases to prevent the creation of the necessary relationship. Whether it is so or not must, in my opinion, depend upon all the circumstances of and surrounding the giving of the information or advice.

19.47 In Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460, certificates provided by the council contained the statement: ‘The above information has been taken from the council’s records but council cannot accept any responsibility for any omission or inaccuracy.’ The evidence was that there was a complete failure to have recourse to relevant council records in the preparation of the certificates. The council argued that, due to the disclaimer, there was no duty of care owed or that there was no reasonable reliance. The Federal Court held that the existence of the disclaimer did not render the plaintiff’s reliance upon the certificates unreasonable. The council was in the better position to know the accuracy of the information and the disclaimer was a statement in respect of the procedure that should have been followed in preparing the certificate. Any omission or inaccuracy that the council was denying was in the process of taking information from the records. As procedure had not been followed, the disclaimer was of no effect: at 471. 19.48 A disclaimer will be closely scrutinised and may amount to an implied acceptance of responsibility for some consequences: BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221. 19.49

Contracts of sale commonly include a ‘no reliance clause’ requiring

that the purchasers acknowledge that they have relied upon their own inspection, knowledge and inquiries and not upon any representations made by the vendor or on behalf of the vendor. Such contractual acknowledgments do not preclude a finding of a duty of care and do not necessarily make reliance unreasonable. In Fick v Groves [2010] QSC 89 at [204]–[205] (see 19.28), the court held: Ultimately, such a contractual acknowledgment of no reliance needs to be weighed with the evidence of actual reliance. … The issue is whether such reliance was reasonable in circumstances in which they contracted on the basis that they did not rely upon such a representation.

[page 484] The contractual acknowledgment is an important circumstance against a finding that the plaintiffs’ reliance was reasonable in all the circumstances. However, the circumstances in which the representations were made were such as to indicate to the defendants that the plaintiffs intended to rely upon the representations in the brochure and the production history document, save to the extent that these were qualified or contradicted by what was discussed at the meeting. The defendants intended that the plaintiffs should rely upon the information and advice contained in the brochures. The disparity between the knowledge and expertise of the parties in relation to the matters contained in the representations and the limited opportunity that the plaintiffs had to verify the representations are circumstances which strongly favour the imposition of a duty of care. I consider that in all the circumstances it was reasonable for the plaintiffs to rely upon the representations, notwithstanding the “no reliance” clause in the contract and the fact that the plaintiffs did not seek to protect their position by negotiating a contractual provision to the effect that the defendants had taken reasonable care in making the representations.

19.50 When considering the duty of care for negligent misrepresentation where there is a disclaimer, the courts will determine first whether there is a duty of care before considering the effect of the disclaimer: BT Australia Ltd v Raine & Horne Pty Ltd [1983] 3 NSWLR 221; Derring Lane Pty Ltd v Fitzgibbon (2007) 16 VR 563.

Scope of the Duty of Care

19.51 The duty of care recognised in Hedley Byrne [1964] AC 465, Mutual Life & Citizens Assurance Co Ltd v Evatt (1968) 122 CLR 556; [1969] ALR 3, L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385 and San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340; 68 ALR 161, is a duty not to mislead a recipient in the giving of advice or the expression of opinion. However, as the recipient must have reasonably relied upon the statement before recovery is permitted, it is not an absolute duty. In Smith v State Bank of New South Wales Ltd (2001) 188 ALR 729, the plaintiffs sued the defendant bank after losing $300,000 from an investment made in reliance on the advice provided by an accountant who was certified as an authorised agent of the bank. The bank had certified the accountant but had failed to discover that the accountant was, in fact, an undischarged bankrupt and had a criminal record. The court held that the bank owed a duty of care to its customers, who read the accreditation certificates issued by the bank to its authorised agents, to take reasonable care that the certificates were accurate. 19.52 The duty arising from advice may be continuous, in the sense that if the giver of advice gains additional information rendering an original representation no longer reasonable, there is a duty to correct the position based on knowledge of changed circumstances: Richard Ellis (WA) Pty Ltd v Mullins Investments Pty Ltd (1995) Aust Torts Reports ¶81-319. In RT & YE Falls Investments Pty Ltd v New South Wales [2007] NSWCA 18, the appellants, owners of a cattle stud, sued the New South Wales Department of Agriculture for the negligent advice given to them in respect of their infected cattle. The appellants had been advised not to remove the diseased cattle from the herd as it was assumed that all of the herd would have to be destroyed and the appellants would receive compensation from [page 485]

the government. A change in government policy, however, meant that the department no longer would destroy the appellants’ stock nor pay compensation. The appellants were not informed of the change in policy and, with the department’s knowledge, allowed the diseased cattle to remain with the herd. Due to their relying upon the advice of the department, the appellants suffered economic loss as a result of the depreciation of the healthy cattle in the herd, due to their exposure to the diseased cattle, and there being no compensation payable. The Court of Appeal held that, by keeping silent as to the change in policy, the department was in breach of its duty of care. The statements made to the appellants, while true at the time, had, with the department’s knowledge, become false and the duty of the department was to correct the falsity. See also Tipperary Developments Pty Ltd v Western Australia (2009) 258 ALR 124 at [205], where the court held that the respondent was under a continuing duty to advise of any information that would impinge upon the representation (respondent had represented to the appellant that a merchant bank was ‘basically financially sound’).

Breach and Damage 19.53 Once it is established that a duty of care exists in the circumstances, it is necessary for the plaintiff to prove the remaining elements of the negligence action — breach of the duty of care and damage. 19.54 The standard of care owed would be the standard of a reasonable person in the position of the defendant. In Fick v Groves [2010] QSC 89 at [207], it was stated: A person who is under a duty of care in making statements should take reasonable care to ensure that the statement is correct. The standard of care depends upon the circumstances, including the knowledge and experience that might reasonably be expected of a person in the defendant’s position.

19.55

If the defendant is a professional, the civil liability provisions related

to the standards of professionals would not apply in some jurisdictions as they do not apply to the giving of advice or warnings associated with the professional service: see 11.73. 19.56 Whether the standard has been breached is a question of fact: see Chapter 11. 19.57 The damage suffered by the plaintiff must have been caused by the breach of duty and within the defendant’s scope of liability: see Chapter 12. The negligent misrepresentation need not be the sole inducement that made the plaintiff rely upon the misrepresentation: Henville v Walker (2001) 206 CLR 459; 182 ALR 37; March v E & M H Stramare Pty Ltd (1991) 171 CLR 506; 99 ALR 423; Fick v Groves [2010] QSC 89. The plaintiff must establish that they did in fact rely upon the misrepresentation and that reliance caused loss. 19.58 The pure economic loss that is suffered must be a reasonably foreseeable consequence of the plaintiff’s reliance upon the misrepresentation: South Australia v Johnson (1982) 42 ALR 161; Jazabas Pty Ltd v City of Botany Bay Council (2000) ANZ ConvR 616: see Chapter 12. [page 486]

Contributory Negligence 19.59 Despite the fact that the finding of the existence of a duty of care depends upon the plaintiff’s reasonable reliance upon the misrepresentation, contributory negligence may be raised in an action in negligent misrepresentation. The issue of reliance in determining the existence of a duty of care is one of law — whether it was reasonable for a person in the plaintiff’s position to have relied on the misrepresentation. Reliance is also considered, as a question of fact, when considering whether the

misrepresentation caused the plaintiff’s damage. It is in respect of the latter that the defendant may allege contributory negligence. If the plaintiff failed to protect their own position and this contributed to their loss, then the award of damages may be reduced as allowed by the apportionment legislation: see Chapter 13.

Remedies 19.60 If the damage resulting from the negligent misrepresentation arises from the plaintiff entering into a transaction, the assessment of damages will usually be the loss suffered by entering into that transaction. In L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225; 36 ALR 385, the appellants bought land that they would not have purchased had the defendant informed them of the road-widening proposal. Damages were claimed for the difference between the purchase price of the land and its actual value, the expenses incurred while in ownership (for example, council rates and insurance costs) and the cost of the conveyance. The respondent argued against the claim for the associated expenses, claiming that if there had been no road-widening proposal the appellants would have still incurred those costs. The High Court disagreed, holding that, as the appellants would not have purchased the land if they had knowledge of the proposal, they were entitled to be compensated for the associated costs. Mason J stated (at CLR 255; ALR 408): The respondent is right in saying that the items were expenses to which the appellants would have been subject had the land been free from the road-widening proposal. However, this does not prevent the expenses from constituting recoverable damage. The judge found that, but for the negligent mis-statement, the appellants would not have bought the land, the land being useless for the purpose for which it was acquired. Consequently, the appellants’ loss includes, not merely the diminution in value of the land, but also the expenses of acquisition and retention for a reasonable time, expenses which would not have been incurred had the respondent not been negligent. It was not suggested that the items in question fell outside the boundary of foreseeability. The measure of recoverable damages for negligent mis-statement is the amount of money necessary to restore the plaintiff to the position he was in before the statement, subject to the loss being foreseeable.

19.61 Consequential loss may be recovered if it is not too remote, for example loss of profits. However, if the plaintiff claims damages for loss of opportunity, the plaintiff would have to prove that, but for being induced by the defendant’s negligent misrepresentation to enter into the transaction, they would have entered into another transaction that would have been profitable and that the loss was reasonably foreseeable: South Australia v Johnson (1982) 42 ALR 161 at 170; Gates v City Mutual Life Assurance Society Ltd (1986) [page 487] 160 CLR 1 at 13; 63 ALR 600 at 608. It must be established that the lost opportunity was of real value. In Stocks v Retirement Benefits Fund Board [2007] TASSC 8, the plaintiffs relied upon misrepresentations of the defendant as to the leasing of a new shopping centre and suffered loss due to the failure of their store, leading to bankruptcy. The court awarded damages for the cost of the fit-out, rent and legal costs associated with the lease, as well as damages for the labour of the plaintiffs, wasted due to the misrepresentations (Carlton v Pix Print Pty Ltd [2000] FCA 337), and general damages for vexation and distress.

Limitation Period 19.62 As a claim in negligent misrepresentation is generally a claim for damages for pure economic loss, the claim must be brought within six years of the action accruing in all jurisdictions, except the Northern Territory, which specifies three years: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s 14(1)(b); Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act 1936 (SA) s 35(c); Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 13(1). See Chapter 14.

In Commonwealth v Cornwell (2007) 229 CLR 519; 234 ALR 148, the High Court noted that an action in negligence accrues when the plaintiff suffers damage: at [5]. In that case, the plaintiff alleged that he had relied upon incorrect advice provided to him concerning his eligibility for membership to a superannuation fund in 1965. The court held that the damage accrued when the plaintiff retired and, therefore, he had six years from retirement to bring the action. 19.63 If the misrepresentation leads the plaintiff into entering into a contract and the benefit to be acquired is less than represented, then the loss is suffered upon entering into the contract and the time limitation period would commence upon that date: Francis v Whatson [1994] 2 Qd R 584.

4

Deceit (Fraudulent Misrepresentation)

19.64 As noted in 19.2, although a plaintiff who had suffered pure economic loss due to reliance upon a misrepresentation originally could not seek damages through an action in negligence, if fraud could be proven an action lay in deceit: Derry v Peek (1889) 14 App Cas 337. 19.65 Although the writ of deceit was recognised from the 13th century, it was limited to particular kinds of fraud, for example, fraud on the court. It was extended in the 14th century to cover cases of misrepresentation in situations in which a bargain had been struck and as a means of enforcing representations as to quality. Nevertheless, different courts still held opposing views as to the fundamental nature of deceit well into the 19th century: contrast the views of the Exchequer in Cornfoot v Fowke (1840) 6 M & W 358; 151 ER 450 and those of the Queen’s Bench in Fuller v Wilson (1842) 3 QB 58. It was not until 1789 that a fraudulent misrepresentation appears to have been actionable as an independent tortious basis of liability: Pasley v Freeman (1789) 3 Term Rep 51; 100 ER 450.

[page 488] 19.66 Also, various nominate and innominate torts may depend upon some fraudulent misrepresentation, not as an independent basis of liability, but as a mode of committing that tort. For example, in Wilkinson v Downton [1897] 2 QB 57, the shock was intentionally inflicted as a result of the telling of a lie and grounded an innominate action on the case. Similarly, a misrepresentation may procure consent to personal physical contact which may be actionable as trespass to person, or possession of goods may be obtained by fraud in circumstances where the interference is actionable as a conversion. 19.67 The High Court summarised the elements of the tort of deceit in Magill v Magill (2006) 226 CLR 551; 231 ALR 277 at [114]: a misrepresentation of fact by the defendant; the defendant had knowledge of the falsity (scienter); the defendant intended reliance; the plaintiff acted in reliance upon the misrepresentation; and the plaintiff suffered damage. 19.68 The ultimate onus of proof remains on the plaintiff throughout, but an evidentiary burden may fall on the defendant to displace inferences to be drawn from the facts: Gould v Vaggelas (1985) 157 CLR 215; 56 ALR 31.

Misrepresentation of Fact 19.69 There must be a misrepresentation of fact: Pasley v Freeman (1789) 3 Term Rep 51; 100 ER 450; Edgington v Fitzmaurice (1885) 29 Ch D 459 at 483: see 19.4. 19.70

The High Court considered when silence may be sufficient to

support an action in deceit in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 69 ALJR 629. The plaintiffs purchased a commercial strata title unit from the defendant. The defendant knew that the plaintiffs were purchasing the unit for investment purposes and that they required a financially strong tenant and a return on their investment of 10 per cent. The purchase price was calculated on the basis of 10 times the annual rental value of the unit. Just prior to the plaintiffs’ agreement to purchase the unit, the defendant signed a lease agreement for the unit with third parties for a period of six years with two options to renew. The lease document specified an annual rental of $156,000 and the plaintiffs consequently paid $1,560,000 for the unit. During the course of negotiations with the plaintiffs, the defendant failed to disclose to the plaintiffs that it had concluded a collateral agreement with the lessee which had formed the basis of the lessee’s agreement to enter into the leasehold agreement. Most importantly, the collateral agreement was not annexed to the sale contract despite the lease itself being annexed and the lease containing a ‘whole agreement’ clause. Pursuant to this collateral agreement, the lessor allowed the lessee a three-month rent-free period and a lump sum payment to them of $156,000 for fitting out and stocking of the premises. When apportioned over the period of the lease, this incentive reduced the rental return of the unit by more than $300,000. The majority of the High Court (Brennan, Deane, Gaudron and McHugh JJ) held that the misrepresentation of fact, constituted by the silence as to the existence of the [page 489] collateral agreement, was that the lease annexed to the sale contract contained the whole of the agreement between the defendant and the tenant. 19.71 In Magill v Magill (2006) 226 CLR 551; 231 ALR 277, the appellant sued the respondent in deceit, arguing that the respondent had falsely represented that he was the father of two children when they were married.

At first instance, the appellant was awarded damages for deceit, but the decision was reversed by the Court of Appeal of the Supreme Court of Victoria. The High Court was unanimous in holding that the tort of deceit was not established. It was held that the presentation of the birth registration documents by the respondent for signature by the appellant did not amount to misrepresentation. Instead, the deceit was the failure of the respondent to disclose her infidelity. Therefore, the issue was whether the respondent’s silence amounted to a misrepresentation. It was held that there was no obligation of disclosure between spouses of sexual infidelity and, therefore, there was no actionable misrepresentation.

Scienter (Knowledge of Falsity) 19.72 The misrepresentation must be known to be untrue by the representor or made recklessly, meaning not caring whether it is true or false at the time it is made: Derry v Peek (1889) 14 App Cas 337 at 374; Civil Service Co-Op Society of Victoria Ltd v Blyth (1914) 17 CLR 601; 20 ALR 161. If the plaintiff asserts that the defendant knew the misrepresentation to be false, the defendant must have actual knowledge; it is not sufficient to prove that the defendant had the means to know that it was false: Nocton v Lord Ashburton [1914] AC 932. 19.73 Mere carelessness is not sufficient to satisfy this element: Angus v Clifford [1891] 2 Ch 449. In Middleton v Aon Risk Services Australia Ltd [2008] WASCA 239 at [43], McLure J stated: ‘Negligence, even gross negligence, is not fraud.’ In Wood v Balfour (2011) 15 BPR 29,773, the appellants bought the respondent’s house. The pre-contract pest inspection report noted that there was termite damage but after settlement, extensive termite damage was discovered that required significant remedial work. The appellants alleged that the respondents had concealed the termite damage and therefore had fraudulently misrepresented the property. The court pointed out that the

appellants had to prove not that the respondents knew of the termite damage, which clearly they did as they had had work carried out, but that they knew that there was termite damage that compromised the structural integrity of the property: at [60]. Further, it would have to be proven that the respondents knew of the damage, were conscious of it at the time of the sale of the property and chose not to disclose it for the purpose of deceiving the appellants: at [70]. The court was not satisfied that this level of consciousness existed on the part of the respondents and the action failed. 19.74 The meaning to be attached to ambiguous statements has been held to be that intended by the representor rather than an objective test: John McGrath Motors (Canberra) Pty Ltd v Applebee (1964) 110 CLR 656; Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 69 ALJR 629. The motive of the representor is not relevant: Langridge v Levy (1837) 2 M & W 519; 150 ER 863. [page 490] 19.75 If a statement is true when made, but later found by the representor to be false, this fact should be communicated to the representee to avoid the possibility of a misrepresentation of fact through changed temporal circumstances: Davies v London & Provincial Marine Insurance Co (1878) 8 Ch D 469; Jones v Dumbrell [1981] VR 199. 19.76 There are other special rules which may require particular representors (for example, fiduciaries and company directors) to disclose certain information. Beach Petroleum NL v Johnson (1993) 115 ALR 411 involved, inter alia, a claim in respect of deceit. Von Doussa J confirmed that a company is vicariously liable for the tortious acts of its directors when they are acting in the scope of their authority as its agents, even if the knowledge of the directors is not imputed to the company: applying Lloyd v Grace Smith &

Co [1912] AC 716; Lloyds Bank Ltd v Chartered Bank of India, Australia and China [1929] 1 KB 40; Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205. 19.77 It is often the case that representations are made on the behalf of another party in commercial transactions. A principal cannot be liable for the deceit of an agent unless one of them was guilty of conscious falsehood: Armstrong v Strain [1952] 1 KB 232. Similarly, a principal may be liable if they authorise an innocent agent to make a statement which the principal knows is false or where the principal chooses an agent with a view to the agent making a false statement: Cornfoot v Fowke (1840) 6 M & W 358; Ludgater v Love (1881) 44 LT 694. Where the innocent acts of several agents combine to produce a misrepresentation of fact, a composite liability may be imposed: W B Anderson & Sons Ltd v Rhodes (Liverpool) Ltd [1967] 2 All ER 850.

Intended Reliance 19.78 The representation must be made with the intention that the plaintiff should act upon it: Bradford Third Equitable Benefit Building Society v Borders [1941] 2 All ER 205 at 211. This does not require that the statement be made directly to the plaintiff: Langridge v Levy (1837) 2 M & W 519; 150 ER 863; T J Larkins & Sons v Chelmer Holdings Pty Ltd [1965] Qd R 68. However, a representation to an earlier owner cannot be invoked by a subsequent purchaser: Gross v Lewis Hillman Ltd [1970] Ch 445. The representor need not have intended a specific individual to rely upon the representation, provided the plaintiff is one of the class which the representor intended should rely upon it. In Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337, woolgrowers who had sold wool to a dealer thought it prudent to obtain a report on the purchaser’s creditworthiness before they delivered the consignment. They requested their bank to make inquiries about the buyer

and the manager of their bank did so, in writing, to the defendant’s branch in Perth, where the buyer banked. A favourable reply, in confidence and without responsibility, was received. One of the plaintiffs required later confirmation when a carrier arrived to pick up the wool clip and rang the manager of his local bank, who gave the account. The opinion of the manager of the defendant’s bank in Perth misrepresented the buyer’s financial position and was never honestly held. The wool was delivered, the buyer could not pay and the vendors lost the value of the wool delivered. [page 491] They succeeded in deceit before the High Court. On the question of intended reliance, Menzies J stated (at 343): A person who makes a false and fraudulent misrepresentation is only liable to the persons to whom it is made, that is, to the persons whom it is intended should act upon it: Peek v Gurney (1873) LR 6 HL 377. It is not necessary for liability that the misrepresentation should be made directly, it can be made to one, to be passed on to another; it is not necessary that it should be made to a particular person; it can be made to a group to which the plaintiff belongs so that the plaintiff is one of those intended to be deceived. The representation must, however, in one way or another, be made to the plaintiff to induce him to act upon it.

Disclaimers 19.79 On the effect of a disclaimer, Menzies J stated in Commercial Banking Co of Sydney Ltd v R H Brown & Co (1972) 126 CLR 337 at 344: Once it be found, therefore, as it was found, that the defendant contemplated the communication of its opinion to customers of the Cranbrook branch of the Bank of New South Wales, the customers to whom it was communicated were representees of the defendant. It follows that, in so far as the disclaimer could protect the defendant, it would, but it could not protect it against fraud.

Gibbs J agreed, distinguishing Hedley Byrne [1964] AC 465 on the basis that it was a case of fraud before the court, not a case of negligence. His Honour held that a representor who fraudulently gives information with the

intention that it be relied on by another, could not avoid liability by claiming that the information is for the use of the recipient only: at 346; see also Felton v Johnson (2000) Aust Torts Reports ¶81-559 at 63,712.

Reliance 19.80 The plaintiff must have acted to his or her detriment in reliance upon the representation: Horsfall v Thomas (1862) 1 H & C 90; 158 ER 813; Edgington v Fitzmaurice (1885) 29 Ch D 459; Burrows v Rhodes [1899] 1 QB 816. It is the sense in which the representee understood the representation which is relevant to the determination of whether the representee was induced to act in reliance upon it to his or her detriment: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; 69 ALJR 629. A representee’s knowledge of the falsity may, but will not necessarily, defeat the claim: Sinclair v Preston [1970] WAR 186. It is no defence that the plaintiff had means at his or her disposal to check the accuracy of the representation: S Pearson & Son Ltd v Dublin Corporation [1907] AC 351. In Magill v Magill (2006) 226 CLR 551; 231 ALR 277, the High Court held that the appellant had to establish that he had relied upon the alleged representations of the respondent that he was the father of her children. Because the appellant was married to the respondent and had attended the births of the children, he assumed he was their father. The court held that there was no evidence that he believed he was the father because of the birth registration documents. 19.81 The representation need not be the sole inducement but it must be a contributing factor: Gould v Vaggelas (1985) 157 CLR 215; 56 ALR 31. [page 492]

Damage

19.82 The damage suffered by the plaintiff must be caused by their reliance upon the misrepresentation. As stated in Briess v Woolley [1954] AC 333 at 353: The tort of fraudulent misrepresentation is not complete when the representation was made. It becomes complete when the representation — not having been corrected in the meantime — is acted upon by the representee.

19.83 There is some doubt as to whether the loss must be foreseeable. In Gould v Vaggelas (1985) 157 CLR 215 at 224; 56 ALR 31 at 37, Gibbs CJ stated that it was ‘unnecessary for present purposes to consider whether damages for deceit can be recovered even if they were not reasonably foreseeable, and I would leave open that important question’.

Remedies 19.84 The remedy for deceit is primarily compensatory damages: Smythe v Reardon [1949] QSR 74; Mafo v Adams [1970] 1 QB 548; Broome v Cassell & Co Ltd [1972] AC 1027. The measure of damages is the loss suffered as a result of the deceit, including consequential loss: Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158; Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 138 CLR 645; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1. For example, in Archer v Brown [1985] QB 401, the interest on a loan entered into to finance the transaction that resulted from the deceit was recoverable. 19.85 There is no clear authority whether the loss must be the reasonably foreseeable consequence of the deceit to be compensated. There are references to the foreseeability of damage in some cases, but also references to the wider ‘direct consequences’. See, for example, Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [64]–[65]. 19.86 Where the representation is made to a purchaser, damages represent the difference between the purchase price and the actual value of the goods at

the time of purchase: Holmes v Jones (1907) 4 CLR 1692; South Australia v Johnson (1982) 42 ALR 161 at 170. This contrasts with damages awarded in contract for the loss of bargain. 19.87 It is possible to recover loss of profits in an action in deceit if they represent actual damage directly flowing from the fraudulent representation; for example, the defendant falsely represents to a purchaser of a business that the defendant vendor will not trade in competition and the plaintiff purchaser’s profits are diminished as the vendor does trade: East v Maurer [1991] 2 All ER 733; [1991] 1 WLR 461. 19.88 In Aldersea v Public Transport Corporation (2001) 3 VR 499 at 507, it was held that damages for physical injury, psychological injury and distress may be recovered in an action in deceit if the requirements of causation and remoteness are met. See limits on recovery for mental harm: Civil Law (Wrongs) Act 2002 (ACT) s 35; Civil Liability Act 2002 (NSW) s 31. 19.89 Aggravated damages may be available in the appropriate circumstances: Archer v Brown [1985] 1 QB 401 at 423; Broken Hill Proprietary Co Ltd v Fisher (1984) 38 SASR 50 at 66. Not surprisingly, having regard to the nature of the tort, based as it is upon fraud, [page 493] exemplary damages may also be available: Musca v Astle Corporation Pty Ltd (1988) 80 ALR 251 at 268. 19.90 Any contributory negligence on the part of the plaintiff is not relevant in assessing damages in an action in deceit: Standard Chartered Bank v Pakistan National Shipping Corporation (Nos 2 and 4) [2002] 3 WLR 1547; Nocton v Lord Ashburton [1914] AC 932.

Limitation Period 19.91 In an action in deceit, the limitation period commences upon the discovery of the fraud or at the time that the plaintiff could have discovered the fraud with reasonable diligence: Limitation Act 1985 (ACT) s 33; Limitation Act 1969 (NSW) s 55; Limitation Act 1981 (NT) s 42; Limitation of Actions Act 1974 (Qld) s 38; Limitation Act 1974 (Tas) s 32; Limitation of Actions Act 1958 (Vic) s 27; Limitation Act 2005 (WA) s 37. In South Australia, there is no postponement of the time period in cases of fraud except in relation to actions to recover land or rent: Limitation of Actions Act 1936 (SA) s 25: see Chapter 14, especially 14.46.

5

Statutory Actions for Misrepresentation

19.92 Actions in tort for misrepresentation are now very rare due to the availability of remedies under the consumer protection legislation. As observed by the High Court in Magill v Magill (2006) 226 CLR 551; 231 ALR 277 at [116], common law liability for misrepresentation has been eclipsed by the legislation. The concept that has made the tortious law of misrepresentation nearly redundant is that of misleading or deceptive conduct. The reason for the preference for the statutory action can be explained by the fact that proving that a misrepresentation was misleading or deceptive is much easier than proving the ‘special relationship’ required in negligent misrepresentation or the scienter and intent to cause loss for actions in deceit. Indeed, actual deception need not be established as the provision prohibiting misleading or deceptive conduct includes such conduct that is ‘likely to mislead or deceive’: Competition and Consumer Act 2010 (Cth) Sch 2, s 18; Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202. Further, remedies under the consumer protection legislation are more flexible than those available under the common law.

19.93 Originally, the prohibition against misleading or deceptive conduct was contained in s 52 of the Trade Practice Act 1974 (Cth) and its state and territory equivalents in the fair trading legislation. The Trade Practices Act 1974 (Cth) was replaced by the Competition and Consumer Act 2010 (Cth) containing in Sch 2 the Australian Consumer Law (ACL). The ACL applies as a law of the Commonwealth and as a law of each state and territory according to the application provisions of the Competition and Consumer Act 2010 (Cth) (Pt XI) and the fair trading legislation: Fair Trading (Australian Consumer Law) Act 1992 (ACT) Pt 2; Fair Trading Act 1987 (NSW) Pt 3; Consumer Affairs and Fair Trading Act 1990 (NT) Pt 4; Fair Trading Act 1989 (Qld) Pt 3; Fair Trading Act 1987 (SA) Pt 3; Australian Consumer Law (Tasmania) Act 2010 (Tas) Pt 2; Australian Consumer Law and Fair Trading Act 2012 (Vic) Ch 2; Fair Trading Act 2010 (WA) Pt 3. [page 494] 19.94 What was s 52 of the Trade Practices Act 1974 (Cth) is now contained in s 18 of the ACL: Competition and Consumer Act 2010 (Cth) Sch 2. Section 18 provides: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

Person or Corporation 19.95 Section 18(1) refers to ‘person’ and when applied as a Commonwealth law it will apply to the conduct of corporations. However, the ACL as a Commonwealth law will apply to unincorporated individuals, when using postal, telegraphic or telephonic services or radio or television broadcasts: Competition and Consumer Act 2010 (Cth) s 6(3). 19.96

When applied as a law of a state or territory, the ACL will apply to

persons or corporations engaged in trade or commerce within the jurisdiction or connected to the jurisdiction: Fair Trading (Australian Consumer Law) Act 1992 (ACT) s 11; Fair Trading Act 1987 (NSW) s 32; Consumer Affairs and Fair Trading Act 1990 (NT) s 31; Fair Trading Act 1989 (Qld) s 20; Fair Trading Act 1987 (SA) s 18; Australian Consumer Law (Tasmania) Act 2010 (Tas) s 10; Australian Consumer Law and Fair Trading Act 2012 (Vic) s 12; Fair Trading Act 2010 (WA) s 11. 19.97 As a corporation acts through its directors, servants and agents, if acting on behalf of the corporation, the conduct is deemed to be that of the corporation: Competition and Consumer Act 2010 (Cth) s 139B(2); Fair Trading Act 1987 (NSW) s 87A; Consumer Affairs and Fair Trading Act (NT) s 43; Fair Trading Act 1989 (Qld) s 95; Australian Consumer Law (Tasmania) Act 2010 (Tas) s 28; Australian Consumer Law and Fair Trading Act 2012 (Vic) s 196; Fair Trading Act 2010 (WA) s 110. There is no equivalent provision in the Australian Capital Territory or South Australian legislation. Under the ACL, persons who are accessories to a contravention of the law may be held liable: see the definition of ‘involved’ in the ACL s 2; Yorke v Lucas (1985) 158 CLR 661; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592. 19.98 In Google Inc v Australian Competition and Consumer Commission (2013) 294 ALR 404, the respondent did not rely on accessorial liability and argued that the appellant contravened s 52 of the Trade Practices Act 1974 (Cth) (now ACL s 18) by providing sponsored links on its internet search engine that conveyed misleading or deceptive representations in respect of four businesses. It was held: The automated response which the Google search engine makes to a user’s search request by displaying a sponsored link is wholly determined by the keywords and other content of the sponsored link which the advertiser has chosen. Google does not create, in any authorial sense, the sponsored links that it publishes or displays: at [68].

Therefore the appellant had not engaged in misleading or deceptive

conduct.

Trade or Commerce 19.99 To be subject to the Act, the ‘person’ who made the misrepresentation must be engaged in trade or commerce. Section 2 of the ACL defines ‘trade or commerce’ as: [page 495] (a) trade or commerce within Australia; or (b) trade or commerce between Australia and places outside Australia; and includes any business or professional activity (whether or not carried on for profit).

19.100 The phrase ‘trade or commerce’ has been given a wide meaning (Re Ku-ring-gai Co-operative Building Society (No 12) Ltd (1978) 36 FLR 134) and in Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325; 59 ALR 334, it was noted that most conduct of a corporation would be regarded as being in trade or commerce. Promotional activities fall within trade or commerce, as demonstrated by Nixon v Slater & Gordon (2000) 175 ALR 15. In that case, a firm of solicitors published a brochure promoting their expertise in the area of medical negligence. On the front of the brochure was a picture of the plaintiffs, two surgeons. The plaintiffs sued in defamation and for misleading or deceptive conduct in breach of s 52 of the Trade Practices Act 1974 (Cth). The court held that the firm had engaged in misleading or deceptive conduct and that the promotion of the firm’s business was in trade or commerce. 19.101 As the definition includes professional activities, a solicitor or an accountant providing advice, for example, would be within the operation the ACL.

19.102 When the ACL is applied as a Commonwealth law, it does not apply to financial services: Competition and Consumer Act 2010 (Cth) ss 131(1) and 131A.

Misleading or Deceptive Conduct 19.103 Whether the conduct complained of (in this case, a misrepresentation) is misleading or deceptive is assessed objectively. French CJ stated in Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610 at [25]: … that generally requires consideration of whether the impugned conduct viewed as a whole has a tendency to lead a person into error … it involves consideration of a notional cause and effect relationship between the conduct and the state of mind of the relevant person or class of persons. The test is necessarily objective. [footnotes omitted]

Silence 19.104 Silence may be actionable under the ACL, as ‘conduct’ is defined to include refusing to do an act which includes refraining from doing an act: ACL s 2(2). The ACL does not impose an obligation of disclosure, but silence will amount to misleading or deceptive conduct, if in the circumstances of the case, the plaintiff had a reasonable expectation that the information would be disclosed: Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608.

Statements of fact, law and opinion 19.105 Section 18 is not restricted to representations of fact; statements of fact and law are capable of being misleading, if inaccurate. The intention of the representor in making the representation is not relevant; instead, the effect of the representation upon the person to whom it is directed is relevant. [page 496]

19.106 As for an opinion, it may be misleading or deceptive if it was not actually held or there was no reasonable basis for the opinion: Global Sportsman Ltd v Mirror Newspapers Ltd (1982) 2 FCR 82; Elders Trustee & Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193 at 242; Havyn Pty Ltd v Webster (2005) 12 BPR 22,837.

Future matters 19.107 In relation to statements as to future matters, for example predictions, s 4 of the ACL provides: (1) If: (a) a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and (b) the person does not have reasonable grounds for making the representation; the representation is taken, for the purposes of this Schedule, to be misleading. 19.108 The representor must establish that they had reasonable grounds for making the statement about the future matter, otherwise they are deemed not to have had reasonable grounds: ACL s 4(2); Sykes v Reserve Bank of Australia (1998) 158 ALR 710; James v ANZ Banking Group Ltd (1986) 64 ALR 347 at 372. This reverses the onus of proof, but the plaintiff must still prove that they relied on the representations and that damage resulted.

Disclaimers 19.109 A disclaimer will be ineffective to a claim under s 18 of the ACL unless, when considered in light of all of the circumstances, the disclaimer is evidence that the plaintiff did not rely on the misleading statement: Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 at 557. It is also

possible that a disclaimer may break the chain of causation between the defendant’s conduct and the damage claimed by the plaintiff: Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; 257 ALR 610. The High Court decision of Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; 212 ALR 357 is a rare case where the disclaimer contained in an advertising brochure for a property was held to be effective by a majority of the High Court. In that case, a brochure included a survey plan of the property which the purchasers relied upon as accurate before entering into a contract to buy the property. The purchasers sued the real estate agent that prepared the brochure, as it was engaged in trade or commerce. A majority held that the disclaimer was effective when the circumstances were taken into account, as it made it clear to the purchasers that the plan provided in the brochure was not provided by the real estate agent but by a third party: at [50]–[51].3

Remedies 19.110 The primary remedy for breach of s 18 of the ACL is damages. Section 236(1) provides: [page 497] If: (a) a person (the claimant) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 or 3; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

Although s 18 does not require a plaintiff to have suffered loss for there to be a contravention, in order to be entitled to damages under s 236, there must be some form of loss or damage caused by the defendant’s conduct. The

damages claimed by the plaintiff must be the result of the misleading or deceptive conduct: Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494. 19.111 In assessing damages under the consumer protection legislation the High Court had stressed that analogies with the principles of assessment of contract, tort or equity may be helpful, but courts were not bound by those principles when assessing damages: Murphy v Overton Investments Pty Ltd (2004) 204 ALR 26 at [44]; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; 192 ALR 1 at [25]. However, the courts usually applied the principles of tort for misrepresentation when assessing damages: Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1; Kizbeau Pty Ltd v W G & B Pty Ltd (1995) 184 CLR 281. 19.112 The High Court decisions made it clear that it would be very rare for any contributory negligence of the plaintiff to result in a reduction of damages: Henville v Walker (2001) 206 CLR 459; 182 ALR 37; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; 192 ALR 1. However, amendments were made to the former Trade Practices Act 1974 (Cth) in 2004 to allow contributory negligence to be taken into account. This is now reflected in s 137B of the Competition and Consumer Act 2010 (Cth) which allows a court to reduce damages for a claimant’s own lack of reasonable care. 19.113 The plaintiff may seek damages from the person whose conduct was misleading or deceptive or any person who was involved in the contravention of s 18: ACL s 2 definition of ‘involved’. 19.114 Exemplary damages are not available: ACL s 236. See Nixon v Philip Morris (Aust) Ltd (1999) 95 FCR 453.

Limitation Period 19.115

A plaintiff seeking damages for a contravention of s 18 must bring

the action within six years after the day on which the cause of action accrued: ACL s 236(2). The cause of action arises upon the plaintiff suffering loss as a result of the misleading or deceptive conduct: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247. The reckoning of the accruing of the action may depend upon the transaction entered into in reliance of the misleading or deceptive conduct: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; 109 ALR 247. [page 498] 19.116 The time limitation is a condition of the remedy and therefore the onus lies upon the defendant to prove that the claim of the remedy is out of time. There is no provision in the Act to extend the time period, nor can a plaintiff resort to the state or territory limitation of actions legislation: Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd (1988) ATPR ¶40-853; Jekos Holdings Pty Ltd v Australian Horticultural Finance Pty Ltd [1994] 2 Qd R 515.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Chs 13 and 23. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 16.

1.

See J Stapleton, ‘Comparative Economic Loss: Lessons from Case-law Focused “Middle Theory”’ (2002) 50 UCLA Law Review 531 at 558–9.

2.

For a discussion of the liability of statutory authorities for the provision of information in the

modern context, see S Christensen, W Duncan and A Stickley, ‘Shifting Paradigms of Government Liability for Inaccurate Information’ (2008) 15 eLaw Journal 185. 3.

See S Christensen, W Duncan and A Stickley, ‘Avoiding Responsibility for Misleading Brochures — Is it Simply a Matter of Disclaimer?’ (2008) 16 APLJ 24.

[page 499]

Chapter 20 Vicarious Liability and NonDelegable Duties 1

Introduction

20.1 Generally, the various tortious actions require the proof of fault on the part of the defendant. For example, to be successful in any trespass action, the defendant must have intentionally or negligently committed the interference. In negligence, a plaintiff cannot be compensated unless the defendant is at fault, that is, they have failed to exercise the standard of care required by the law. 20.2 One of the functions of torts is to transfer the loss from the victim to the wrongdoer: see Chapter 1. In contrast to this function and the concept of fault, the principle of vicarious liability imposes the liability for tortious conduct on a party who is not at fault themselves. 20.3 Often linked to vicarious liability is the concept of the non-delegable duty, particularly in employment scenarios. A duty that is recognised as nondelegable extends a defendant’s liability in that it imposes a duty to ensure that reasonable care is taken by others, imposing liability for the conduct of another. The concept of the non-delegable duty has been described as a ‘disguised form of vicarious liability’: New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 at [152] per Kirby J.1 At the heart of both doctrines is the notion of control.

2

Vicarious Liability

20.4 Vicarious liability imposes liability upon a party for a tort committed by another, despite the fact that the party who is vicariously liable may not have been at fault. The liability arises from the relationship between the wrongdoer and the party who is vicariously liable. Some legislation imposes vicarious liability: see, for example, Partnership Act 1892 (NSW) s 10(1) (partners of a firm are liable for any wrongful act or omission of another partner acting in the ordinary business of the firm). [page 500] 20.5 Vicarious liability is purely a policy device to extend liability that developed in the late 17th century in England. The policy grounds that support vicarious liability are: It allows a plaintiff to be compensated by a defendant which is financially viable. A defendant who employs others in order to advance its own enterprise should be under a corresponding liability for the losses occurring in the pursuit of that enterprise: New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 at [202] and [316]–[317]; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 at [40]; Bazley v Curry (1999) 174 DLR (4th) 45 at [34]– [35]. It promotes loss distribution: New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 at [306]. It is an incentive for defendants to exercise control over how their enterprises are carried out to minimise future loss or injury to third parties.

See Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36 at 56–7; London Drugs Ltd v Kuehne and Nagel International Ltd [1992] 3 SCR 299 at 338–40; Bazley v Curry (1999) 174 DLR (4th) 45 at [58]; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 at [42]. 20.6 The relationship of employer and employee gives rise to vicarious liability. As noted in Scott v Davis (2000) 204 CLR 333; 175 ALR 217 at [230], vicarious liability derives from medieval notions of headship of households, based on an assumption of control by the master over a servant, a wife or a child. Principles developed that limited a master’s liability to particular acts that he had authorised or ratified. The Industrial Revolution led to further changes and, by the 19th century, a master was held liable for the acts of his servant committed in the course of employment. This principle continues to apply today between employers and employees. In Lister v Hesley Hall Ltd [2001] 2 WLR 1131; [2002] 1 AC 215 at [14], Lord Steyn noted: Vicarious liability is legal responsibility imposed on an employer, although he is himself free from blame, for a tort committed by his employee in the course of his employment. Fleming [The Law of Torts, 9th ed, Law Book Co, 1998, pp 409–10] observed that this formula represented “a compromise between conflicting policies: on the one end, the social interest in furnishing an innocent tort victim with recourse against a financially responsible defendant; and on the other, a hesitation to foist undue burden on business enterprise”.

Employer and Employee 20.7

For an employer to be vicariously liable it must be established that:

the wrongdoer is an employee of the employer; the employee committed a tort; and the tort was committed within the employee’s course of employment.

Employee 20.8

It is important to make a distinction between an independent

contractor and an employee as an employer is only liable for the tortious conduct of an employee committed [page 501] in the course of employment (Broom v Morgan [1953] 1 QB 597; Darling Island Stevedoring & Lighterage Co Ltd v Long (1957) 97 CLR 36) but not for the tortious conduct of an independent contractor: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 43; 63 ALR 513 at 531; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 LR 572; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263; Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200; Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46. 20.9 It is not always obvious as to whether the wrongdoer is an independent contractor (under a contract for services) or an employee (under a contract of service). The term used by parties to describe their relationship is not definitive of the legal nature of that relationship, since a court must conclude the nature as a matter of law: Narich Pty Ltd v Commissioner of Payroll Tax [1983] 2 NSWLR 597; (1983) 50 ALR 417. Also, if the relationship has been characterised for another legal purpose, that characterisation will not necessarily apply when considering vicarious liability. In Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263, the New South Wales Court of Appeal had previously classified the cyclists as independent contractors in relation to a taxation decision, but the High Court classified the cyclists as employees when considering the issue of vicarious liability for the negligence of a courier. See also Ace Insurance Ltd v Trifunovski (2011) 284 ALR 489, where the contract described the insurance sales agents as independent contractors but the court held they were in fact employees. 20.10

In order to distinguish an employee (contract of service) from an

independent contractor (contract for services), various tests have been developed by the courts. 20.11 Control test Initially, the factors that determined whether a person was an employee were whether: the person was employed to do work for the employer (Hewitt v Bonvin [1940] 1 KB 188); and the person engaged was subject to the control of the employer as to the manner in which the work was undertaken: Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1. In Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561, the High Court stressed that in relation to the control test, the lawful authority to command (in that case, an acrobatic performer) was the significant feature, rather than the actual exercise of control through specific commands. 20.12 Organisation test The traditional control test was found to be unsatisfactory as the only way to determine who was an employee. The organisation test developed as an alternative. If the worker was part of the employer’s organisation, was their work subject to control by the employer as to where and when, but not necessarily how, the work was to be carried out? In Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1 TLR 101 at 111, it was found that: One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and this work is done as an integral part of the business;

[page 502] whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.

20.13 In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 27–8; 63 ALR 513 at 519–20, Mason J was critical of the organisation test,

opining that legal authority to control was more relevant in determining the nature of the relationship. The organisation test was not generally applied in Australia, but, for an example of its application, see Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 at 557. 20.14 Multi-facet test The current approach of the courts in determining whether a worker is an employee or an independent contractor involves a consideration of a range of factors: Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263. Not every factor will be relevant in every case, nor will all be given the same weight — control remains the central element in determining the relationship. 20.15 In Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; 63 ALR 513, the sawmilling company operated a hardwood sawmill in Victoria and conducted logging operations under licence from the State Forests Commission. The company’s practice was to engage and allocate persons to different areas. It engaged ‘fellers’ to fell trees, ‘sniggers’ to push or pull felled logs to loading ramps, constructed by the sniggers, and to load the logs onto trucks, as well as ‘truckers’ who drove the loaded trucks to the sawmill. The company employed a ‘bush boss’ to oversee logging operations but not the actual manner of the work. The sniggers and truckers supplied and used their own vehicles, determined their hours of work and were paid on the volume of timber delivered to the mill. There was no guarantee of work and they could seek other work if weather or other circumstances prevented mill operations. The company had engaged Gray to snig and load logs using his own tractor and Stevens to truck logs. While Gray was loading logs onto Stevens’ truck, a log was dislodged and rolled on to Stevens, causing severe personal injuries. Stevens sued Gray and the company. The trial judge awarded damages after finding both Gray and Stevens were employees and that Gray was negligent in moving the logs. The Victorian Full Court upheld the company’s appeal but dismissed Gray’s appeal. Both

Stevens and Gray appealed to the High Court, which held that neither the injured trucker nor the snigger Gray were employees so there could be no vicarious or personal liability as employer, but that, nevertheless, the sawmiller owed a general common law duty of care based upon the degree of proximity. However, in the view of the majority, there was no breach of the duty. Mason J (with whom Brennan J was in general agreement) stated (at CLR 24; ALR 517): A prominent factor in determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. It has been held, however, that the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise … But the existence of control, while significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this court has been to regard it merely as

[page 503] one of a number of indicia which must be considered in the determination of that question. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.

20.16 In Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263, the respondent conducted a business of delivering parcels and documents in the Sydney area. The appellant was injured when knocked down by a courier on a bicycle wearing a jacket identifying the respondent’s business. At trial, it was held that the couriers employed by the respondent were independent contractors and, therefore, the respondent was not vicariously liable for the negligence. The Court of Appeal agreed with this classification, persuaded by the fact that the couriers provided their own bicycles and bore the expense of maintaining them.

The High Court allowed the appeal, determining that the couriers were employees. The factors identified as relevant included: There was no negotiation between the couriers and the respondent as to the rates of remuneration. Deductions from the couriers’ pay for insurance and such could not be negotiated. The respondent allocated the work with no bidding for individual jobs by the couriers and the couriers could not refuse the job. The respondent assumed all responsibility as to the direction, training, discipline and attire of its couriers. The couriers were not providing skilled labour or labour that required special qualifications. The respondent provided the couriers with items of equipment that remained the property of the respondent. The couriers had to wear the livery of the respondent. The High Court held that the respondent was in control of the couriers, not merely in relation to incidental or collateral matters. The fact that the couriers provided and maintained their own bicycles was not necessarily contrary to an employer–employee relationship as the cost was not substantial. Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ stated that the Court of Appeal ‘fell into error in making too much of the circumstances that the bicycle couriers owned their own bicycles’: at [47]. 20.17 McHugh J also allowed the appeal, finding that the couriers were not employees but that the respondent was liable for the negligence on policy grounds: at [93]. His Honour stated (at [72]): Rather than attempting to force new types of work arrangements into the so-called employee/independent contractor “dichotomy” based on medieval concepts of servitude, it seems a better approach to develop principles concerning vicarious liability in a way that gives effect to modern social conditions. As I pointed out in Burnie Port Authority v General Jones Pty Ltd ((1994) 179 CLR 520 at 585) and reiterated in Scott v Davis ((2000) 175 ALR 217 at 243), the genius of the common law is that the first statement of a common law rule or principle is not its

final statement. The contours of rules and principles expand and contract with experience and changes in social conditions. The law in this area has been and should continue to be “sufficiently flexible to adapt

[page 504] to changing social conditions” (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 28–9 per Mason J).

See also Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46, where the High Court held that a mechanic was an independent contractor of the respondent, not an employee. This conclusion was based upon the evidence that: the mechanic supplied his own tools and equipment; the respondent did not control the way the mechanic worked; the mechanic worked for other businesses; the mechanic invoiced the respondent for the hours he worked and the parts he supplied; and the mechanic maintained his own workers compensation and public liability insurance. Other jurisdictions have expanded the application of vicarious liability beyond the relationship of employer and employee. In the United Kingdom, there must be a relationship ‘sufficiently analogous to employment’ (Woodland v Essex County Council [2013] UKSC 66 at [3]) or ‘akin to employment’: E v English Province of Our Lady of Charity [2013] QB 722 at [18]. Canada has moved away from the requirement of an employer– employee relationship, instead focusing on whether there is a relationship between the plaintiff and defendant that is sufficiently close to make a claim for vicarious liability appropriate: KLB v British Columbia (2003) 2 SCR 403 at [19]. In New Zealand, relationships outside of employment have been applied to vicarious liability. For example, the Crown was held to be vicariously liable for the torts committed by foster parents in S v Attorney-

General [2003] 3 NZLR 450 at [64], despite the fact that there was no employment-like relationship and no remuneration involved.

Specific cases 20.18 Hospital staff Professional medical staff were initially held not to be employees of hospital authorities because of an absence of control, but doctors, radiologists, matrons and nurses have now been held to be employees: Roe v Minister of Health [1954] 2 QB 66; [1954] 2 All ER 131; Samios v Repatriation Commission [1960] WAR 219; Cassidy v Ministry of Health [1951] 2 KB 343; Gold v Essex County Council [1942] 2 KB 293. However, a specialist merely using the hospital’s premises would not be an employee. 20.19 Armed forces and public servants Members of the armed forces are not servants of the Crown (Commonwealth v Quince (1944) 68 CLR 227), unless engaged in ordinary civilian-type activities in time of peace: Groves v Commonwealth (1982) 150 CLR 113; 40 ALR 193. In Commonwealth v Connell (1986) 5 NSWLR 218, the Commonwealth was held to be vicariously liable for an assault committed by a member of the armed forces on a fellow member during a training expedition. 20.20 At common law, police service personnel are not servants of the Crown for the purpose of imposing liability on the state: Enever v The King (1906) 3 CLR 969; Irvin v Whitrod (No 2) [1978] Qd R 271; Griffiths v Haines [1984] 3 NSWLR 653. This has been [page 505] modified by legislation: Australian Federal Police Act 1979 (Cth) s 64B (the Federal Police provide the police service in the Australian Capital Territory); Law Reform (Vicarious Liability) Act 1983 (NSW) s 8; Police Administration

Act 1978 (NT) s 148C; Police Service Administration Act 1990 (Qld) s 10.5; Police Act 1998 (SA) s 65; Police Service Act 2003 (Tas) s 84; Victoria Police Act 2013 (Vic) s 74; Police Act 1892 (WA) s 137. Under the Commonwealth, New South Wales, the Northern Territory and Queensland legislation, the state is jointly liable with the officer; elsewhere the state is liable alone. For the legislation to apply, the police officer must have been acting in their capacity as an officer at the time. For example, in Peat v Lin [2005] 1 Qd R 40, the three police officers were off duty at a nightclub when the plaintiff was stabbed. It was argued that the officers were in breach of their duty of care by failing to prevent the breach of the peace. The court held that s 10.5 of the Police Service Administration Act 1990 (Qld) did not apply to make to state of Queensland liable as at the time the officers were not acting in their capacity of police. 20.21 The Commonwealth may be vicariously liable for tortious acts of its public servants: Oriental Foods (Wholesalers) Co Pty Ltd v Commonwealth (1983) 50 ALR 452 (Commonwealth vicariously liable for negligence of customs officer). However, if the employee was carrying out an independent duty and does so negligently, the Commonwealth will not be liable: Little v Commonwealth (1947) 75 CLR 94 at 114; Oceanic Crest Shipping Co v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; 66 ALR 29. This exception of ‘independent discretion’ applies if the employee was performing a duty imposed by either the common law or by statute. If the performance of the duty is subject to the control of the employer, the exception will not apply: Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 at [289]. 20.22 This principle has been subject to much criticism and it has been recommended that it should be abolished: see the Australian Law Reform Commission (ALRC) report, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation,2 and the Queensland Law Reform Commission (QLRC) report, Vicarious Liability.3 The principle has been abrogated in New South Wales and South Australia: Law Reform

(Vicarious Liability) Act 1983 (NSW); Crown Proceedings Act 1972 (SA) s 10(2) (repealed by Crown Proceedings Act 1992 (SA), but the common law principle was not revived due to the application of the Acts Interpretation Act 1915 (SA) s 16). 20.23 Borrowed employees Where an employee is lent by one employer to another, as between each of the two employers, the employer who retains control will be vicariously liable. In Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90 at [58], it was explained that ‘the focus is on who has the right to control the manner in which the act involving the negligence was done’. For the purpose of vicarious liability, the ‘transferee is deemed to be the employer’: at [56]. The onus is on the employer which lends the employee to show a transfer of control: McDonald v Commonwealth (1945) 46 SR (NSW) 129; Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1. This burden of proof can only be discharged in ‘exceptional circumstances’: Kelly v Bluestone Global Ltd (in liq) at [58]. [page 506] 20.24 In Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1, the appellant hired out mobile cranes with drivers. It retained the power to dismiss the driver but the contract for hire provided that the driver was to be an employee of the hirer. A driver was negligent and injured a third party. By applying the control test, the House of Lords held that the appellant was the employer at the time of the negligence, despite the term in the contract of hire. See also Deutz Australia Pty Ltd v Skilled Engineering Ltd (2001) 162 FLR 173 at [109]–[113], where the authorities were reviewed and Ashley J summarised the framework of determining when the responsibility for vicarious liability shifts from the general employer to the temporary employer:

… [F]irst, a general employer which seeks to shift vicarious responsibility for the negligence of its servant onto another bears a heavy onus, which can only be discharged in quite exceptional circumstances. Second, transfer will less readily be inferred where the general employer provides man and machine; and probably also where the general employer provides a skilled worker. Third, transfer may be discerned where the hired worker, despite a machine being also hired out, is bound to work the machine “according to the orders and under the entire and absolute control” of the hirer. Fourth, the contract made between general and temporary employers, so-called, cannot determine whether there has been change of masters for purposes now under discussion. Fifth, circumstances in which transfer may be discerned are the following: Where the hirer can direct not only what the workman is to do, but how he is to do it. Where the hirer “is entitled to tell the employee the way in which he is to do the work”. Where the complete dominion and custody over the servant has passed from the one to the other. Where, by an agreement “the employer vests in the third party complete, or substantially complete, control of the employee, so that he is not only entitled to direct the employee what he is to do, but how he is to do it”. Where it can be said that the hirer has such authority to control the manner in which the worker does his work that it can be said that the worker is serving the hirer, not merely serving the interests of the hirer. Where it cannot be said that the reason that the worker subjected himself to control of the so-called temporary employer as to what he did and how he did it was that his general employer told him to do so. Where it can be said that the servant was transferred, not merely the use and benefit of his work. [footnotes omitted]

An example of where it was found that there had been a transfer of control is Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90. The plaintiff was injured at work by the negligence of another employee, Scanlan. Scanlan was provided to the defendant employer by a labour hire company. The court found that Scanlan had been hired after submission of his résumé for consideration, and had been trained and supervised on the worksite. McLure P applied the decision of Mersey Docks and Harbour Board v Coggins & Griffith

[page 507] (Liverpool) Ltd, to hold that control had been transferred. See also Airworks (New Zealand) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641 (court held that the respondent merely paid the wages of the pilot and that the appellant had control over all other aspects of the pilot’s work). 20.25 Ad hoc and gratuitous service The employer–employee relationship may exist even though the relationship involves employment which is gratuitous or infrequent: Brooke v Bool [1928] 2 KB 578 (landlord vicariously liable for lodger’s negligence in lighting a match when assisting landlord in detection of a gas leak). 20.26 Members of the clergy In Australia, vicarious liability applies to an employer–employee relationship. In Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 at 573, it was left unanswered ‘whether a priest in the Roman Catholic Church who is appointed to a parish is an employee in the eye of the law or otherwise in a relationship apt to generate vicarious liability in his superior’.

Course of Employment 20.27 If an employer–employee relationship exists, for the employer to be vicariously liable for the tortious conduct, the conduct, must be in the course of employment. An employer is not liable vicariously for independent wrongful acts of employees: Bank of New South Wales v Owston (1879) 4 App Cas 270; Bugge v Brown (1919) 26 CLR 110. 20.28 It is a question of fact whether conduct is within the course of employment and depends upon the particular circumstances: Bugge v Brown (1919) 26 CLR 110 at 121. As Kirby J pointed out in New South Wales v

Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 at [322]: … the determination of liability, on the basis of the connection between the [employer’s] enterprise and the wrong, is inescapably a question of fact and degree.

Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 involved an employee employed to drive a petrol tanker truck to deliver petrol to filling stations. While filling an underground tank at a filling station, the employee struck a match to light a cigarette, causing an explosion and a fire which destroyed the filling station. The House of Lords held that the employee was acting within the course of his employment when he lit the match, even though he was not employed to smoke cigarettes and to strike matches. Viscount Simon LC commented (at 514): [The employee’s] duty was to watch over the delivery of the spirit into the tank, to see that it did not overflow, and to turn off the tap when the proper quantity had passed from the tanker. In circumstances like these, ‘they also serve who only stand and wait’. He was presumably close to the apparatus, and his negligence in starting smoking and in throwing away a lighted match at that moment is plainly negligence in the discharge of the duties on which he was employed …

In Blake v J R Perry Nominees Pty Ltd (2012) 38 VLR 123, the appellant, an employee of the respondent, was a driver of a fuel tanker waiting for a ship to arrive which had been delayed. As he stood looking out to sea with another driver, Jones, also an employee of the [page 508] respondent, suddenly struck him behind the knees causing severe back damage. A majority of the Victorian Court of Appeal held that the respondent employer was not vicariously liable. Harper JA stated (at [66]): The action of Mr Jones in hitting [the appellant] and thus causing his near collapse was done neither in furtherance of the interests of [the respondent] nor under its expressed or implied authority. Nor was it an incident to or in consequence of anything Mr Jones was employed to do. It was a spontaneous act of a prankster. No proper thought was given to it. The occasion for the prank, and the form it took, may have arisen from the fact that Mr Jones was a truck driver

employed by the defendant; but a prank of this kind, generated wholly within the confines of Mr Jones’ brain, was not within the course of his employment as a truck driver.

20.29 The House of Lords in Credit Lyonnais Nederland NV (now known as General Bank Nederland NV) v Export Credits Guarantee Department [2000] 1 AC 486; [1999] 1 All ER 929 considered whether an employer was vicariously liable for acts of an employee that, in themselves, did not amount to a tort except when linked to other acts that were not performed in the course of employment. It was held that conduct could not be combined to impose liability upon an employer. The conduct that would impose liability upon the employer must have occurred within the course of employment.

The frolic doctrine 20.30 If an employee takes an opportunity during employment to use time or resources for personal purposes, the employer is not liable: Storey v Ashton (1869) LR 4 QB 476. For example, using an employer’s property for personal use without the employer’s authority or by substantially deviating from a business route for private purposes may mean that the employee is not acting within the course of employment at the time. This is referred to as the ‘frolic doctrine’: Joel v Morison (1834) 6 Car & P 501 at 503; 172 ER 1338 at 1339 per Parke B. 20.31 If it is argued that the employee was on a frolic, both the purpose and extent of the deviation must be considered. In Chaplin v Dunstan Ltd [1938] SASR 245, the driver deviated slightly from route to get refreshment from a hotel. During this deviation, he negligently collided with a motorcycle. As his deviation was not altogether unconnected with his employment, the employer was vicariously liable. In N v Chief Constable of Merseyside Police [2006] EWHC 3041 (QB), an off-duty police officer indicated to an employee of a nightclub that he would take a woman who was unconscious from drink to the police station. Instead

he took her to his home and raped her. The court held that the Chief Constable was not vicariously liable. The court stated (at [22]): … the test is whether the police officer’s act was so closely connected with the acts he was authorised to do that, for the purposes of liability, his wrongful act may fairly and properly be regarded as made by him while acting in the ordinary course of his employment as a police officer.

The evidence was that the officer had been planning such an attack for months, and was ‘at all times pursuing his own misguided personal aims, or in the classic phrase, “on a frolic of his own”’: at [31]. [page 509] 20.32 If the employee is engaged on the employer’s business and on personal business at the same time, the employer may still be liable: Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509; Smith v Stages [1989] AC 928; 2 WLR 529.

Wrongful mode 20.33 An act or omission is still considered to be in the course of employment if it is either a wrongful mode of committing an authorised act or a wrongful act actually authorised by the employer. In New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 at [42], Kirby J stated: To point to a vivid example of conduct by an employee that is not in the course of employment is a useful method of elucidating the concept, but it may be of limited assistance in resolving difficult borderline cases. It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907, and in later editions: an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes — although improper modes — of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act. [footnotes omitted]

20.34 In Bugge v Brown (1919) 26 CLR 110, the defendant grazier employed a farmhand who was entitled, as part of the payment for his labour, to be supplied with cooked meat. On one occasion, the farmhand was given raw meat and was told by the defendant to cook it himself in a small hut on the defendant’s land. The farmhand did not go to the hut, as directed, but lit a fire in a different place on the defendant’s land. As a result of the farmhand’s negligence, the fire spread to the plaintiff’s property where it caused damage. The plaintiff alleged that the defendant was vicariously liable for the farmhand’s negligence. The High Court held, by majority, that the lighting of the fire by the farmhand was within the scope of employment, and so the defendant was vicariously liable for his negligence. The defendant had argued that the farmhand had not been authorised to light a fire at the place in question, as he had been instructed to cook his meat in the hut. Higgins J rejected this argument (at 132): The precise terms of the authority are not the criterion of liability: the function, the operation, the class of act to be done by the employee, is the criterion whatever be the instructions as to the time, the place, or the manner of doing the act. In other words, the employer is liable for damage resulting from the negligent use of a fire on his land if he has sanctioned the lighting of a fire anywhere on his property for the occasion.

Isaacs J stated (at 118–19): A prohibition, either as to manner … or as to time … or place … or even as to the very act itself … will not necessarily limit the sphere of employment so as to exclude the act complained of, if the prohibition is violated … An instruction or a prohibition may, of course, limit the sphere of employment. But to have that effect it must be such that its violation makes the servant’s conduct complained of so distinctly remote and disconnected from his employment as to put him quâ that conduct virtually in the position of a stranger. [footnotes omitted]

[page 510]

Prohibition by employer 20.35

An express prohibition by the employer of a wrongful act will not

necessarily be a defence to the employer if the employee’s act was still a mode of doing what the employee was employed to do: Canadian Pacific Railway Company v Lockhart [1942] AC 591; Conway v George Wimpey & Co Ltd [1951] 2 KB 266; Kooragang Investments Pty Ltd v Richardson & Wrench Ltd (1981) 36 ALR 142; Keppel Bus Co Ltd v Sa’ad bin Ahmad [1974] 1 WLR 1082; [1974] 2 All ER 700; Rose v Plenty [1976] 1 WLR 141. In Kooragang Investments Pty Ltd v Richardson & Wrench Ltd, an employee was held to be acting outside the scope of his employment when, in breach of a prohibition to make property valuations for a group of companies, he continued to make valuations while at the same time being a director of one of the group’s member companies. Lord Wilberforce made the following general remarks (at 145–6): The manner in which the common law has dealt with the liability of employers for acts of employees (masters for servants, principals for agents) has been progressive; the tendency has been toward more liberal protection of innocent third parties. At the same time recognition has been given by the law to the movement which has taken place from a relationship — akin to that of slavery — in which all actions of the servant were dictated by the master, to one in which the servant claimed and was given some liberty of action. In recent times it is common knowledge that many employees supplement their wages by independent use in their own interests of the skills, and sometimes the tools, which they use in their employment. These activities may be above board and legitimate; or they may be surreptitious. Problems of authority and the course of employment must be approached in the light of these realities. Beyond cases of actual authority to commit a wrongful act, of which only rare instances appear, to hold the employer liable for negligent acts was simple and uncontroversial. Negligence is a method of performing an act: instead of it being done carefully, it is done negligently. So liability for negligent acts in the course of employment is clear. Cases of fraud present at first sight more difficulty: for if fraudulent acts are not directly forbidden, most relationships would carry an implied prohibition against them. If committed for the benefit of the employer and while doing his business, principle and logic demand that the employer should be held liable, and for some time the law rested at this point.

20.36 In Rose v Plenty [1976] 1 WLR 141, there was an express prohibition against employees using children in delivering milk. An employee used a child to assist in delivering the milk. The court held that the prohibition regulated the way in which the employee’s work was to be carried out and,

therefore, the employer was liable vicariously. Lord Justice Scarman explained (at 148): I think it is clear from the evidence that he was employed as a roundsman to drive his float round his round and to deliver milk, to collect empties and to obtain payment. That was his job. He was under an express prohibition—a matter to which I shall refer later—not to enlist the help of anyone doing that work. And he was also under an express prohibition not to give lifts on the float to anyone. How did he choose to carry out the task which I have analysed? He chose to disregard the prohibition and to enlist the assistance of the plaintiff. As a matter of common sense, that does seem to me to be a mode, albeit a prohibited mode, of doing the job with which he was entrusted. Why was the plaintiff being carried on the float when the accident occurred?

[page 511] Because it was necessary to take him from point to point so that he could assist in delivering milk, collecting empties and, on occasions, obtaining payment.

In Phoenix Society Incorporated v Cavenagh (1996) 25 MVR 143, the appellant employed a driver to drive a bus of other workers of the appellant. The driver collided with the respondent’s motor vehicle when driving to collect the drivers. At the time of the accident the driver was intoxicated, against the express prohibition of the employer that no alcohol was to be consumed. The court held that the express prohibition by the employer did not limit the scope of the driver’s employment but regulated the conduct within that scope and, therefore, the appellant was vicariously liable. In McClure v Commonwealth [1999] NSWCA 392, infantrymen took home a shell in breach of army regulations. A subsequent occupier of the house found the shell and displayed it as an ornament until it was dropped and exploded. It was held that the infantrymen were on a frolic of their own when they took the explosive and the Commonwealth was not vicariously liable. See also Lamble v Howl at the Moon Broadbeach Pty Ltd [2013] QSC 244 (bar staff acting as security despite employer instructions not to get involved was held to be within course of employment).

Intentional torts 20.37 Whether an intentional tort may be considered within the course of employment is a difficult issue to determine. If an employer is to be vicariously liable for an intentional tort of an employee, it must be determined whether the intentional tort comes within the scope of employment, that is, whether it was an act they were employed to carry out or an act that was incidental to the employment: Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 378. As can be seen from the cases, this is not an easy principle to apply. In Lloyd v Grace, Smith & Co [1912] AC 716, it was held that the employer was vicariously liable for the fraud committed by the law clerk employee. In Morris v C W Martin & Sons Ltd [1966] 1 QB 716, the dry-cleaning employer was held to be vicariously liable for its employee stealing the mink coat of a customer. In Deatons Pty Ltd v Flew (1949) 79 CLR 370, a barmaid threw a glass of beer into the face of a customer. It was found that the conduct was outside the course of the barmaid’s employment as the assault was ‘an independent personal act which was not connected with or incidental in any manner to the work which the barmaid was employed to perform’: at 379. However, in Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports ¶81-246, it was found that the illegal tackle used by a player, which amounted to an assault, was done in order to defeat the other opposing team and was committed in the course of employment. 20.38 In determining the liability of the employer, the motive of the employee is important. If the intentional tort is committed in furthering the employer’s interests and is incidental to the performance of work, the act will be within the course of employment. If the act is done in the employee’s own personal interests, the employer will not be vicariously liable: Deatons Pty Ltd v Flew (1949) 79 CLR 370; Poland v John Parr & Sons [1927] 1 KB 236; General Engineering Ltd v Kingston and St Andrew Corporation [1989] 1 WLR 69.

[page 512] 20.39 In Ffrench v Sestili (2006) 98 SASR 28, the Full Court of the Supreme Court of South Australia had to consider whether the defendant was vicariously liable for her employee stealing money from the plaintiff. The employee was the plaintiff’s carer. The plaintiff had given the carer her ATM card and PIN so that the carer could buy groceries for her, accessing a daily expenses account. However, the carer discovered the PIN for the plaintiff’s main savings account and transferred money into the daily expenses account before withdrawing the money for herself. Gray J held that the defendant was vicariously liable as the misuse of the ATM card was sufficiently related to the work that was authorised as part of the carer’s employment; therefore, there was ostensible authority. This adopts the reasoning of Gummow and Hayne JJ in the decision of Lepore. In Re Margery Farlam Lawyers Trust Accounts (No 3) (2007) 96 SASR 337, Willoughby, an employee of the law firm, misappropriated funds from the trust accounts of which he was manager. On this issue of vicarious liability, the court held (at [181]): Willoughby’s fraudulent misappropriations were, of course, conducted for his own personal gains. It is equally clear that he was performing an act which he was authorised to perform properly. He was dealing with trust money which had been withdrawn for a purpose authorised by a partner but, instead of applying the money withdrawn for the intended purpose, he had applied it to his own purposes. It is, therefore, immaterial that he chose to perform his duties in a way to benefit himself. The firm is, therefore, vicariously liable for the fraudulent activities of Willoughby.

20.40 Care or control of children The issue of whether employers can be vicariously liable for intentional torts committed by employees against children in their care or control is a difficult issue. The barriers that victims of child abuse experience in taking civil action were noted and recommendations made in the Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report: see 20.47.4

20.41 An examination of the cases demonstrates the uncertainty in this area. In Lister v Hesley Hall Ltd [2001] 2 WLR 1311; [2002] 1 AC 215, the House of Lords held that a school was vicariously liable for the sexual assaults committed against students by the warden employed at its boarding house. It was held that the acts were so closely connected to the warden’s employment that it was fair and just that the school be held liable: at [28]. In Bazley v Curry (1999) 174 DLR (4th) 45, an operator of a residential care facility for children was held to be vicariously liable for the assaults committed by its employee against the children. It was reasoned that as the operator intended to create a relationship between the children and its employees similar to that of a parental relationship, the risk of such harm materially increased and, therefore, the conduct was sufficiently related to the employment. In Jacobi v Griffiths (1999) 174 DLR (4th) 71, children were sexually assaulted by an employee of a club that organised recreational activities for children, at the employee’s home. The club was found not to be liable as the intentional torts were not sufficiently connected with the employment. See also EB v Order of the Oblates of Mary Immaculate in the Province of British Columbia [2005] 3 SCR 45. [page 513] 20.42 Reference was made to the decisions of Lister v Hesley Hall Ltd and Bazley v Curry in New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 (Lepore), when the High Court had to consider whether the states of Queensland and New South Wales were liable for the sexual assaults committed upon pupils by teachers employed by them. Gleeson CJ pointed out that the overseas decisions did not suggest that, in most cases, sexual abuse by a teacher would be within the course of employment. His Honour stated (at [74]): If there is sufficient connection between what a particular teacher is employed to do, and sexual

misconduct, for such misconduct fairly to be regarded as in the course of the teacher’s employment, it must be because the nature of the teacher’s responsibilities, and of the relationship with pupils created by those responsibilities, justifies that conclusion. It is not enough to say that teaching involves care. So it does; but it is necessary to be more precise about the nature and extent of the care in question. Teaching may simply involve care for the academic development and progress of a student.

20.43 In considering the application of vicarious liability to intentional torts, the members of the High Court commented on the lack of a comprehensive test: Lepore at [106], [196], [299] and [322]. A majority (Gleeson CJ, Gaudron, Kirby, Gummow and Hayne JJ) agreed that it was possible for an employer to be vicariously liable for an intentional tort of an employee; however, there was no agreement as to the appropriate test. 20.44 Despite the High Court’s concerns about the lack of clear guidelines for vicarious liability, there is still no coherent test to apply in determining whether an intentional tort is within the course of employment. Gummow and Hayne JJ held that a school could not be vicariously liable for an assault by a teacher where there is no actual or ostensible authority from the school. Gleeson CJ, Kirby and Gaudron JJ held that a school could possibly be liable vicariously. McHugh J believed that the issue of vicarious liability did not need to be decided, but commented that abuse by teachers would, in most cases, be within the course of employment: at [166]. Only Callinan J rejected outright the possibility that an intentional tort committed by an employee could give rise to vicarious liability of the employer: at [342].5 20.45 Unsurprisingly, since the decision of Lepore, courts continue to struggle with the issue of an assault committed by a teacher or a carer of a child.6 Judicial comments include: ‘the difficulty arising out of the judgments in Lepore is distilling the actual manner of application of the test of vicarious liability to the particular case in question’ (Erlich v Leifer [2015] VSC 499 at [122]); ‘It is not easy to trace a certain and secure path through the dicta [of

Lepore]. The safest course is to attempt to apply all of them to the facts of the particular case at’ (Sprod v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports ¶81-921 at [54]); [page 514] ‘Although the authorities set out various tests for deciding when an employer should be held vicariously liable, these verbal formulae do not provide any bright line rule for determining whether an employer will, or will not, be held liable for harm caused to a third party by the unauthorised acts of an employee’: Blake v JR Perry Nominees Pty Ltd (2012) 38 VR 123 at [2]. 20.46 The decisions of Erlich v Leifer [2015] VSC 49 and A, DC v Prince Alfred College Inc [2015] SASCFC 161 preferred the approach of Gleeson CJ, as supported by Gaudron and Kirby JJ in Lepore over the stricter test propounded by Gummow and Hayne JJ. The decision of Erlich v Leifer [2015] VSC 499 considered the issue of vicarious liability of a school for the sexual abuse of a student by the principal of the school. The defendant was the principal of an Ultra-Orthodox Jewish school which followed exceptionally rigid and strict codes of behaviour in accordance with the religious beliefs and practices. It was an unusual school environment as the defendant was ‘invested with a high degree of power and intimacy’ and she used ‘that power and intimacy to commit sexual abuse’: at [128], quoting Gleeson CJ in Lepore (2003) 212 CLR 511; 195 ALR 412 at [74]. The trial judge concluded that the defendant’s authority, the school environment and the vulnerability of the plaintiff justified a finding that the defendant’s conduct was within the course of her employment. The issue of whether abuse was within the course of employment of a boarding house master at a school was considered by the Full Court of the

South Australian Supreme Court in A, DC v Prince Alfred College Inc [2015] SASCFC 161. After an extensive review of the case law, Gray J stated (at [126]): I consider that an employer may be vicariously liable for criminal conduct of its employee which was committed solely for the employee’s own benefit and in breach of the contract of employment. The test for liability is whether the employee’s conduct took place in the course of employment. To determine whether the employee’s conduct took place in the course of employment, the court may have regard to, relevantly:— the actual and ostensible responsibilities, powers and duties of the employee; whether the conduct occurred while the employee was acting in performance of the contract of employment or the furtherance of the employer’s business; whether the conduct occurred while the employee was apparently acting in performance of the contract of employment or the furtherance of the employer’s business; whether the employee was ostensibly exercising authority which the employer held the employee out to have; and whether the employer created or enhanced the risk of wrongdoing by the employee.

The court allowed the appeal and held that the respondent school was vicariously liable for the assaults carried out by the house master if the boarding school as having regard to all of the circumstances, as ‘[u]ltimately, this was “one of those wrongful acts done for the servant’s own benefit for which the master is liable when they are acts … which are committed under cover of the authority the servant is held out as possessing or of the position in which he is placed as a representative of his master”’: at [261], citing Deatons Pty Ltd v Flew (1949) 79 CLR 370 at 381. [page 515] 20.47 The Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report, released in 2015, highlighted the issues with the doctrine of vicarious liability applying to assaults committed to children in educational and care environments. The report questions (at p 54): If the law makes a solicitor liable for the criminal act of his clerk and the dry cleaner liable for

the criminal act of his employee, could it be argued that it is not appropriate for institutions to be liable for the criminal abuse of a child when in their care? If the protection of an individual’s property is an important priority of the common law, the protection of children should at least have the same priority. In our opinion the community would today expect that the care of children should attract the highest obligation of the law.

Rather than legislate in respect of vicarious liability, the Report makes the recommendation that legislation be enacted to impose liability in the form of a non-delegable duty upon certain institutions for institutional child abuse: see 20.67. 20.48 Security guards Many claims based on vicarious liability for intentional torts involve security guards of clubs and hotels, where the injured patron of the establishment attempts to sue the security firm or club or hotel for the intentional tort of its employee. After a discussion of the various approaches of the members of the High Court in Lepore (2003) 212 CLR 511; 195 ALR 412, Ipp JA in Sprod v Public Relations Oriented Security Pty Ltd (2007) Aust Torts Reports ¶81-921 at [52] noted: One thing seems to be clear according to the weight of authority. There are circumstances under which an employer may be vicariously liable for unauthorised acts of an employee, even when those acts are criminal and even when the employer has expressly instructed the employee not to perform acts of that kind.

In Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486, the Queensland Court of Appeal held that the security guard who was employed by the appellant was acting within the scope of his employment when he assaulted the respondent. Applying the decision of Lepore, Williams JA stated (at [18]): What emerges from the various judgments in Lepore is that the critical test, in broad terms, involves a comparison between the intentional wrongful conduct and the type of conduct the employee was engaged to perform. If there is a “sufficient connection” (Gleeson CJ at [40], [42], [52], [54], [67] and [74]), or a “sufficiently close connection” (Kirby J at [315], [316], [319] and [320]), or a “close connection” (Gaudron J at [131] and [132] and Gummow and Hayne JJ at [213]), it will be open to the tribunal of fact to conclude that the wrongful act was done in the course of employment, albeit in an improper mode. The connection is of critical importance, and as Gummow and Hayne JJ noted at [217] where the opportunity for abuse becomes greater, so the risk of harm increases. Essentially that means that where an employer clothes an employee with authority which, if abused, could lead to great harm, then (the risk being known

to the employer) the easier it will be for a court to draw the conclusion that the wrongful act was done in the course of employment.

The court noted that the security guard was authorised to use force by its employer, he had done so while on duty, on the premises of the employer and was ostensibly acting within the course of his employment: at [34]. [page 516] See also Zorom Enterprises Pty Ltd (in liq) v Zabow (2007) 71 NSWLR 354 at [26] (respondent assaulted by security guard employed by appellant), where it was stated: Although it may be important to identify the acts of an employee by reference to his or her contractual duties, defined with some precision, that course will not always provide a ready answer. Nor is it sufficient to say that the act must be done in the intended pursuit of the employer’s interests or in the intended performance of the contract.

20.49 Other jurisdictions Just as other jurisdictions have moved away from the requirement of an employer–employee relationship, there has also been development in respect of the requirement of a tort being committed in the course of employment. In the United Kingdom, the test is whether the act of the tortfeasor is closely connected with their employment (Lister v Hesley Hall Ltd [2002] 1 AC 215), while Canada has adopted a ‘enterprise risk’ theory that examines whether the enterprise and employment has materially enhanced the risk: Bazley v Curry [1999] 2 SCR 534 at [41]. Both of these tests are much broader than the requirement of course of employment.

Principal and Agent 20.50 The liability of a principal for the acts of an agent is not based on vicarious liability, although it is often referred to as such. In the law of agency, the agent stands in the place of the principal — the law sees the principal and the agent as one party.7 As the courts refer to the vicarious liability of a

principal for an agent, it is necessary to consider the liability of a principal: see, for example, Ramsey v Vogler [2000] NSWCA 260 where the members of the Court of Appeal refer to the vicarious liability of the principal for the agent. 20.51 There is no precise definition of the word ‘agent’ and merely because a person calls themselves an agent, it does not necessarily mean that they are one in the eyes of the law. 20.52 Under the law of agency, a principal is liable to third parties for the acts of its agents that are done with actual or ostensible authority of the principal: Credit Lyonnais Nederland NV (now known as General Bank Nederland NV) v Export Credits Guarantee Department [2000] 1 AC 486; [1999] 1 All ER 929; Petersen v Moloney (1951) 84 CLR 91. As stated by Lord Macnaghten in Lloyd v Grace, Smith & Co [1912] AC 716 at 737, ‘the principal is not liable for the torts or negligences of his agent in any matters beyond the scope of the agency, unless he has expressly authorised them to be done, or he has subsequently adopted them for his own use and benefit’. In Aircraft Technicians of Australia Pty Ltd v St Clair; St Clair v Timtalla Pty Ltd [2011] QCA 188 at [58], it was held: … it is not sufficient to make A vicariously liable for the tortious negligence of B by designating B as A’s agent. There must be something in the relationship between A and B, in the interaction between them, to show that the designation is appropriate and apposite. It will not be enough to show that B acted at A’s request and that the actions conferred a benefit on A. If A’s control over B is to be the ingredient which establishes agency the evidence must show what degree of control was, or could have been, exerted; the manner in which control was or could have been exerted;

[page 517] and the matters with respect to which control was or could have been exerted. Without some such analysis the term “control” is devoid of meaning.

20.53 The joint judgment of Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ in Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 263 stated that the couriers were employees of the respondent. However, relying on many of the same factors as the joint judgment, McHugh J held that the couriers were agents of the respondent and, therefore, the respondent was liable: at [74]. His Honour held that, at the time of the accident, the courier was carrying out a task as the representative of the respondent and was acting within the scope of authority conferred by the respondent. His Honour stated that it was more appropriate to apply the agency principle recognised in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; [1932] ALR 73. 20.54 A principal will be liable for the tortious conduct of an agent that results in financial loss where the principal has expressly authorised the conduct of the agent: Hewitt v Bonvin [1940] 1 KB 188. For example, in Ramsey v Vogler [2000] NSWCA 260, fraudulent representations were made by an agent, appointed by the owner of a business, to induce the plaintiffs to buy the business. The owner of the business was found to be liable for the fraudulent statements as they were made within the course of authority of the agent. 20.55 A person who holds out another as possessing authority may be liable also as principal for torts of the other committed as part of their ostensible authority: Armstrong v Strain [1952] 1 KB 232; Trade Practices Commission v Queensland Aggregates Pty Ltd (1982) 44 ALR 391. In Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd (1931) 46 CLR 41; [1932] ALR 73, it was held that an insurance company was vicariously liable for the defamatory statements made by its agent about a rival firm. The insurance company had authorised the agent to approach prospective clients on its behalf and to make observations to those clients as thought appropriate and, therefore, it was liable for those statements.

20.56 The issue of whether the wrongdoer was an agent/representative or independent contractor was also considered by the High Court in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; 227 ALR 46. The appellant was injured when the door of a refrigerator fell off its hinges. The respondent was contractually responsible for maintaining the refrigerator which it had leased to the occupiers of the service station where the incident took place. At trial, it was held that the occupiers of the service station had not been negligent and that the respondent was vicariously liable for the negligence of the mechanic it had sent to service the refrigerator when it was reported that the door was not closing properly. Although the mechanic was described as a ‘contractor’, the trial judge held that he ‘was acting as a servant or agent of [the respondent] with the authority and the approval of [the respondent] to undertake the work that he did’: at [7]. The Court of Appeal allowed an appeal by the respondent, holding that the respondent was not vicariously liable for the mechanic’s negligence. Before the High Court, the appellant relied upon the decision of Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Co of Australia Ltd [page 518] (1931) 46 CLR 41; [1932] ALR 73, arguing that the mechanic was a representative of the respondent. It was stated by the majority of the court (Kirby J in dissent): What is revealed is that like “agent”, the word “representative” and its cognate forms are used in many different senses. It is necessary to distinguish between the different meanings. Saying that B did what he or she did as the “representative” of A does not reveal, without definition of what is meant, what was the relationship between the parties: at [16].

And: … the wider proposition that underpinned the argument of the appellant in this case, that if A “represents” B, B is vicariously liable for the conduct of A, is a proposition of such generality

that it goes well beyond the bounds set by notions of control (with old, and now imperfect analogies of servitude) or set by notions of course of employment: at [26].

Kirby J allowed the appeal, agreeing with the trial judge’s decision that the mechanic was a representative of the respondent. His Honour stated (at [95]): Whilst the rule in [Colonial Mutual Life Assurance Society Ltd v The Producers & Citizens Cooperative Assurance Co of Australia Ltd] remains, it should be applied by this Court in accordance with its terms. It is part of Australian law. Its terms apply in the present case. [The mechanic] was the representative of [the respondent] which afforded him the means to persuade others that he should be admitted to their premises, permitted to repair a refrigerator placed there for which [the respondent] was responsible by lease and even allowed to receive [the respondent’s] money and to give a receipt for what he received.

Owner of a motor vehicle 20.57 The ownership of a private or commercial motor vehicle may be prima facie evidence that any driver was driving it for the purpose, and with the authority, of the owner: Jennings v Hannan (No 2) (1969) 71 SR (NSW) 226. 20.58 At common law, a driver of a vehicle over which the owner retains control is an agent of the owner, who becomes liable as principal for the driver’s negligence: Soblusky v Egan (1960) 103 CLR 215. In Scott v Davis (2000) 204 CLR 333; 175 ALR 217, the High Court held that the operation of Soblusky v Egan should not be extended to impose vicarious liability upon the owner of an aircraft for the negligence of the pilot. It was held that the pilot was not the agent of the owner as the owner was in no position to assert control over the manner in which the pilot flew the aeroplane. See also Frost v Warner (2002) 209 CLR 509; 186 ALR 1 (being a registered controller of a motor vessel under the Water Traffic Regulations (NSW) was not sufficient to found liability vicariously) and Lloyd v Borg bht NSW Trustee and Guardian (2013) 84 NSWLR 652 (owner of unregistered vehicle not vicariously liable when de facto wife allowed inexperienced driver to drive). 20.59

The presumption of agency may be rebutted; mere permission to

use a car does not give rise to a relationship of agency: Pratt v Connolly (1994) Aust Torts Reports ¶81-283. The hire of a vehicle does not attract to a hire car firm the principles of vicarious liability simply because of ownership: Lansdown v WTH Pty Ltd (1990) 10 MVR 355. 20.60 Legislation in respect of motor vehicle accidents has done away with the need to prove agency if the damages being sought are for personal injury. Compulsory third [page 519] party insurance ensures that anyone who suffers personal injury arising from the use of a motor vehicle will be able to recover through the insurance agent of the owner of the vehicle. See Road Transport (Third-Party Insurance) Act 2008 (ACT); Motor Accidents Compensation Act 1999 (NSW) Ch 2; Motor Accident Insurance Act 1994 (Qld) Pt 3; Motor Vehicles Act 1959 (SA) Pt 4; Motor Accidents (Liabilities and Compensation) Act 1973 (Tas); Transport Accident Act 1986 (Vic) Pt 3, Div 2; Motor Vehicle (Third Party Insurance) Act 1943 (WA). In the Northern Territory, the Motor Accidents (Compensation) Act 1979 (NT) provides a no-fault scheme, replacing the right to sue in tort: s 5.

3

Non-Delegable Duties

20.61 Alongside the principles of vicarious liability, the concept of the non-delegable duty developed. A plaintiff may sue a defendant in negligence even though the harm they suffered arose from the acts of a third party. In these circumstances the plaintiff would argue that the defendant owed them a non-delegable duty of care. A non-delegable duty is a duty to ensure that reasonable care is taken by a third party. For a defendant to owe a non-

delegable duty it is necessary that a duty of care be owed and then it must be determined whether that relationship gives rise to a non-delegable duty. 20.62 The common law imposes a non-delegable duty upon a defendant who has undertaken to control people or the property of another who is vulnerable: Kondis v State Transport Authority (1984) 154 CLR 672 at 687; 55 ALR 225 at 235; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550–1; 120 ALR 42 at 62; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 361; 146 ALR 572 at 604; New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412 at [100]. 20.63 Therefore, even though the defendant may delegate a task which is part of the content of the duty owed, to a third party, the defendant remains liable to the plaintiff, though it is the negligence of the third party which causes harm to the plaintiff. The term ‘non-delegable’ refers to the inability of the defendant to delegate liability, not the actual task: McDermid v Nash Dredging & Reclamation Co Ltd [1987] AC 906 at 910. If a duty is characterised as non-delegable, then the scope of that duty is that not only must the defendant exercise reasonable care, they must also ensure that those to whom they have delegated any aspect of their duty to take reasonable care as well. 20.64 The law has recognised that certain relationships give rise to a nondelegable duty but the categories are not closed: Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225. The recognised non-delegable duties are: employers to employees; school authorities to students; hospitals to patients; and occupier of premises to entrants.

[page 520]

Employers 20.65 It is well established that an employer owes a duty of care to employees and that the duty is non-delegable: Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225; Czatyrko v Edith Cowan University (2005) 214 ALR 349. In Kondis v State Transport Authority, the plaintiff was injured during the course of his employment with the defendant while dismantling a structure in railway yards. The jib of a crane fell on him while it was being manually extended by an independent contractor hired by the defendant. The plaintiff sued the defendant employer, alleging that his injuries were caused by the defendant’s negligence. The High Court held that the defendant was not vicariously liable for the negligence of the independent contractor, but that it was personally liable to the plaintiff for breach of the duty it owed to him. As noted by Mason J (at CLR 687–8; ALR 235): The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employees and the employee has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee’s safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences.

In Leighton Contractors Pty Ltd v Fox (2009) 240 CLR 1; 258 ALR 673 at [21], the High Court stated: An employer owes a personal, non-delegable, duty of care to its employees requiring that reasonable care is taken. This is a more stringent obligation than a duty to take reasonable care to avoid foreseeable risk of injury to a person to whom a duty is owed. While an employer is not vicariously liable for the negligent conduct of an independent contractor, it may incur liability where the negligent conduct occasions injury to its employee. This is because it will have failed to discharge the special duty that it owes to its employees to ensure that reasonable care be

taken, whether by itself, its employees or its independent contractors, for the safety of its injured employee.

20.66 If an employer owes a non-delegable duty, the employer will not be liable for the collateral negligence of its contractors: Padbury v Holliday & Greenwood Ltd (1912) 28 TLR 494. In that case, it was held that for the employer to be liable it must be established that the work itself gave rise to the risk. If the ordinary performance of the work would not create a reasonably foreseeable risk to the plaintiff, the negligent performance of that work is generally not enough to impose liability upon the employer. However, in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42, it was held that if the work is one of exceptional danger, the standard of care is increased so that it may include acts that would otherwise be considered collateral.

Schools 20.67 School authorities owe a non-delegable duty of care to students: Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577; New South Wales v Lepore; Samin [page 521] v Queensland; Rich v Queensland (2003) 212 CLR 511; 195 ALR 412. In Ramsay v Larsen (1964) 111 CLR 16 at 28, Kitto J stated that ‘the school authority undertakes not only to employ proper staff but to give the child reasonable care’. In Commonwealth v Introvigne, a student was injured when the top of a flagpole fell on him due to another student swinging on the halyard. The accident occurred in the school grounds, prior to school. At the time the teachers were at a meeting where the death of the principal was being announced. The High Court held that the school was negligent by failing to

provide adequate supervision of the playground. Mason J stated (at CLR 273; ALR 589): The Commonwealth had undertaken a government function for the conduct of which it was responsible, whether it employed its own teachers or arranged for teachers to be made available to it by a state. The Commonwealth is therefore as liable for the acts and omissions of its borrowed staff as it would have been for staff directly employed by it as teachers in schools established by it.

In Lepore, the members agreed that the scope of the non-delegable duty was to ensure that reasonable care was taken. Gaudron J stated (at [105]): … to describe the duty of a school authority as non-delegable is not to identify a duty that extends beyond taking reasonable care to avoid a foreseeable risk of injury. It is simply to say that, if reasonable care is not taken to avoid a foreseeable risk of injury, the school authority is liable notwithstanding that it engaged a “qualified and ostensibly competent” (Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 550; 120 ALR 42 at 62) person to carry out some or all of its functions and duties.

Kirby J noted (at [291]): … the non-delegable nature of the duty was not designed, as I read the cases, to expand the content of the duty imposed upon the superior party to the relationship, so as to enlarge that duty into one of strict liability or insurance. It was simply a device to bring home liability in instances that would otherwise have fallen outside the recognised categories of vicarious liability. Introvigne is the case propounded as establishing such a non-delegable duty on schools. Yet it is clear there from the reasons of Mason J that the scope of both forms of duty is the same: “The Commonwealth is … as liable for the acts and omissions of its borrowed staff as it would have been for staff directly employed by [it] as teachers in schools established by it.” (Commonwealth v Introvigne (1982) 150 CLR 258 at 273; 41 ALR 577 at 589)

Hospitals 20.68 Hospitals owe a non-delegable duty to their patients: Samios v Repatriation Commission [1960] WAR 219; Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542. The duty applies to not only residents of the hospital but also outpatients: Roe v Minister of Health [1954] 2 QB 66; [1954] 2 All ER 131. 20.69

In Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, it was

held that a non-delegable duty is not owed by a hospital to every person who receives treatment. In that case, it was held that if a specialist used the facilities of a hospital for a private patient, no duty was owed by the hospital to ensure that the specialist exercised reasonable care. The important relationship is that between the hospital and the patient, not the hospital and the [page 522] doctor who attends the patient: at 600. See also Yepremian v Scarborough General Hospital (1980) 110 DLR (3d) 513 at 581, per Houlden JA (in dissent): First, a general hospital may function as a place where medical care facilities are provided for the use of a physician and his patient. The patient comes to the hospital because his physician has decided that the hospital’s facilities are needed for the proper care and treatment of the patient. This use of the hospital is made possible by an arrangement between the hospital and the physician by which the physician is granted hospital privileges. Where a hospital functions as merely the provider of medical care facilities, then, … a hospital is not responsible for the negligence of the physician. … Second, a general hospital may function as a place where a person in need of treatment goes to obtain treatment. Here the role of the hospital is that of an institution where medical treatment is made available to those who require it. … Does a hospital in these circumstances have the duty to provide proper medical care to a patient? In my judgment, it does.

Owing a non-delegable duty, a hospital is expected to exercise reasonable care and skill in the provision of diagnostic and treatment services, and also ensure that hospital staff act with reasonable care: Ellis v Wallsend District Hospital (1989) 17 NSWLR 553.

Occupiers of Premises 20.70 In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42, the owner of a building had retained an independent

contractor to do work on extensions to the building. The work involved welding activities in close proximity to cardboard cartons containing isolite, an insulating material which burned fiercely if brought into sustained contact with flame. Due to the contractor’s negligence, sparks or molten metal fell on the containers and caused the isolite to burn. The ensuing fire spread to an area of the building occupied by a licensee and caused damage to its stock. The majority justices, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ, held that the owner owed the licensee a non-delegable duty of care which extended to ensuring that its independent contractor took reasonable care to prevent the isolite being set alight as a result of the welding activities, and was in breach of that duty. Accordingly, the owner was liable to the licensee in negligence. See also McVicar v S & J White Pty Ltd (t/as Arab Steed Hotel) (2007) 97 SASR 160 (plaintiff injured on defendant’s premise when cleaning, activity held not to be inherently dangerous nor did the defendant undertake special responsibility for the safety of the plaintiff); Thornton v Wollondilly Mobile Engineering Pty Ltd [2012] NSWSC 621 (excavation and tree lopping not considered to be inherently dangerous). 20.71 The non-delegable duty of an occupier may arise in relation to activities undertaken on the property that cause injury to persons or goods that are on that property, as in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42, or to persons, goods or property that are affected by the activities. In AD & SM McLean Pty Ltd v Meech (2005) 13 VR 241, the respondent was injured when a horse escaped from the property controlled by the appellant onto an adjoining highway in a rural area. It was argued that the appellant, as the occupier of the land, owed [page 523]

a non-delegable duty of care to take reasonable care to ensure that animals on the property were properly contained. Nettle JA gave the reasons for the court, holding that the duty was non-delegable. Referring to the principles in Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42 and Lepore (2003) 212 CLR 511; 195 ALR 412, his Honour stated (at [22]–[23]): The agistment of horses on rural land is not “inherently dangerous” or dangerous in itself. Nor without more could it be regarded as a “non-natural use” of the land which the occupier knows to be “mischievous”. … But as the result in Burnie Port Authority shows, a defendant may be liable in negligence as in breach of a non-delegable duty to take care to guard against injury the result of an activity conducted on the land … Following the decision in Burnie Port Authority, the question in each case is whether the combined effect of the magnitude of the foreseeable risk of an accident occurring and the magnitude of the foreseeable potential injury or damage if an accident does occur, is such that an ordinary person acting reasonably would consider it necessary to exercise “special care” or to take “special precautions” in relation to it. In this case I think that they would. On any analysis the agistment of horses on land abutting a major multi-lane highway, like the Western Highway where it abuts St Anne’s Winery, is likely to be dangerous for persons using the highway unless care is taken to confine the horses to the land. Further, as it appears to me, the magnitude of foreseeable risk of an accident happening and the magnitude of the foreseeable potential injury or damage in the event of a horse escaping onto the highway and causing an accident are such that an ordinary person acting reasonably would consider it necessary to exercise special care or to take special precautions to prevent the horses’ escape onto the highway. In those circumstances I consider that Burnie Port Authority dictates that the occupier of land which abuts such a highway and who permits others to agist horses on the land may be held to owe to motorists passing on the highway by the property a non-delegable duty to take reasonable care to prevent the horses escaping onto the highway.

An occupier’s non-delegable duty also includes a duty not to deprive a neighbour’s land of support: Burnie Port Authority v General Jones Pty Ltd; Bower v Peate [1876] 1 QBD 321; Llavero v Shearer [2014] NSWSC 1336. This duty cannot be satisfied merely by hiring a competent independent contractor to carry out the work that caused the loss of support. Such an interference may also amount to a nuisance. See also 25.18.

Characteristics of a Non-Delegable Duty 20.72

The categories of non-delegable duties are not closed. If the

characteristics of the special relationship can be argued to impose a special duty to ensure care is taken, the duty owed may be classified as non-delegable in the circumstances. In Kondis v State Transport Authority (1984) 154 CLR 672 at 687–8; 55 ALR 225 at 235, Mason J (with whom Dawson and Deane JJ agreed) stated: [W]hen we look to the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed … The element in the special relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of the several circumstances. The hospital undertakes the

[page 524] care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care … In these situations, the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.

20.73 In Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; 120 ALR 42, the High Court adopted the reasoning of Mason J in Kondis v State Transport Authority, noting that the common element in cases where a non-delegable duty is recognised is the central element of control: at CLR 550–1; 120 ALR 62; see also Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 350; 146 ALR 572 at 595–6. 20.74 In Northern Sandblasting Pty Ltd v Harris, Kirby J noted the difficulty in identifying the circumstances that will rise to a non-delegable duty. His Honour stated (at CLR 395; ALR 631): Academic writers have been critical of the failure of the courts to explain more clearly the precise characteristics of relationships said to justify the imposition of the exceptional non-

delegable duty of care. Judges and commentators have admitted that it is not always easy to identify the boundaries of the categories of non-delegable duty. Various criteria are nominated, ranging from the superior capacity of the defendant to bear the risk of the mishap; the special obligations which it is proper to attach to extra-hazardous activities; and the special dependence or vulnerability of the person to whom the duty owed is not discharged. Each of these considerations may be relevant in the case of particular categories accepted as falling within this class. Whilst they help to describe the idea which lies behind the imposition of a “special” duty of care, they do not define with precision the circumstances where the special duty will be imposed by law.

20.75 Therefore, if a relationship does not fall within the recognised categories of non-delegable duties, it will be necessary to establish that the defendant exercises control over the situation and that, due to this control, there is a reasonable expectation by the plaintiff that the defendant will ensure that reasonable care will be taken.

Landlords 20.76 In Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; 146 ALR 572, the respondent, who was the daughter of the tenants who leased a residence from the appellant, was seriously injured when electrocuted. The evidence was that the appellant had hired an electrician to fix a stove when notified by the tenants that the stove was not working. The work was carried out negligently by the licensed electrician, causing the respondent to be electrocuted when she turned off a garden tap. The respondent sued the appellant for: breach of statutory duty under the residential tenancy legislation; breach of the defendant’s personal duty because of the faulty earthing system and the defective stove; and breach of the defendant’s non-delegable duty owed in relation to the repair of the stove. A majority of 5:2 held that the duty owed by the defendant as landlord was not non-delegable and, therefore, the defendant was not directly liable for the negligence of the

[page 525] independent contractor that it had engaged to carry out the electrical work on the demised property. It was held that the defendant’s duty went no further than taking reasonable care in engaging a competent contractor. The duty of care that arises when a task to be performed does not carry an inherent risk of damage to person or property of another may be discharged by engaging a competent independent contractor to perform it. 20.77 As to whether the task involves an inherent risk of damage is a question of fact that is to be determined in light of common experience. The fact that the negligence of the electrician might foreseeably cause injury to the respondent or some other member of the family or visitors was not enough to impose a non-delegable duty of care on the defendant. In Jones v Bartlett (2000) 205 CLR 166; 176 ALR 137, although the nondelegable duty of a landlord was not in issue, members of the High Court noted that a landlord’s duty is delegable. The duty imposed on a landlord would be discharged upon delegation of a task to a competent party.

Statutory authority 20.78 An example of an attempt to argue that a duty was non-delegable is the High Court decision of Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200. In that case, the respondent was injured when he was walking on a public footpath controlled and maintained by the appellant. The appellant had engaged an independent contractor to carry out work on the footpath. The contractor had laid a cover and artificial grass over a pit in the footpath, but the cover was broken, so when the respondent stepped onto it, the cover gave way and the respondent fell into the pit, injuring his knee. The lower courts held that the appellant was liable for the negligence of the employees of the contractors. The New South Wales Court of Appeal stated:

… where a road authority engages a contractor to do work on a road used by the public, such as to involve risk to the public unless reasonable care is exercised, the road authority has a duty to ensure reasonable care is exercised; and the road authority will be liable if the contractor does not take reasonable care. However, the road authority will not be liable for casual or collateral acts of negligence by the contractor: Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [23].

On appeal to the High Court, the appellant argued that the lower courts had erred in finding that it owed a special duty and, further, that the duty owed by a council was an ordinary duty to take reasonable care to prevent injury. As Kirby J indicated, the issue was whether the appellant owed the respondent a non-delegable duty of care arising from the relationship of a public roads authority and a road user: at [49]. Referring to the decision of Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225, the court held that the appellant did owe a duty of care but that the duty could not be characterised as non-delegable. Kirby J noted (at [123]), that, although there was significant dependence by the respondent upon the appellant, there was not the same vulnerability as existed in the recognised non-delegable duty relationships such as hospital and patient, employer and employee or school authority and student. 20.79 In S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217; 216 ALR 252, the Commonwealth conceded that it owed [page 526] a non-delegable duty of care to detainees suffering from psychiatric illnesses. In its discussion of non-delegable duties, the Federal Court commented that the duty owed by the Commonwealth to immigration detainees known to be suffering psychiatric illness is analogous to the recognised non-delegable duties of hospital and patient and gaoler and prisoner. It stated (at [209]– [211]):

The characteristics the present relationship shares with that of hospital and patient are not only the element of control and the assumed responsibility for the health care of the detainees; there is as well the exaggerated vulnerability of the class of detainees at significant risk of mental illnesses. … The further characteristic shared with the gaoler-prisoner relationship grows out of the nature of the control exercised over detainees. They are without freedom and without capacity to provide for their own needs, special or otherwise. Their’s [sic] is a special dependence but particularly so if they suffer from mental illness. The duty imposed on the Commonwealth must accommodate that special dependence and the peculiar vulnerability to which detainees known to suffer mental illness are exposed. The duty must also take account of the very distinctive outsourcing arrangements the Commonwealth has been prepared to accept for the provision of health care services.

The court held that the Commonwealth had breached its duty by failing to ensure that the level of medical care available to the detainees was reasonably designed to meet not only their health care needs but also their psychiatric care. The psychiatric service provided by the contractor of the Commonwealth was inadequate and the Commonwealth had failed to ensure that adequate care was being provided: at [258]–[259]. 20.80 However, although the categories of non-delegable duties are not closed, in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200, the High Court cautioned against the recognition of new categories without very careful consideration. Callinan J stated (at [190]): The unanimous judgment of this Court in Sullivan v Moody [(2001) 207 CLR 562] speaks of the necessity for coherence in the law. All of this is to suggest that this Court should scrutinise with great care, and generally reject the imposition of non-delegable duties, unless there are very special categories warranting an exception, as to which nothing further need be said here. On any view this case does not fall within a necessary exception.

Kirby J stated (at [36]): If there is no conceptual unity to the recognised instances of non-delegable duties in tort, repeated observations in this Court suggest that the presently recognised categories should not be expanded.

Scope and Breach of Duty

Scope of the duty 20.81 If a duty is characterised as non-delegable, in general terms, the defendant has a duty to ensure that reasonable care is taken not only on its own part, but also that others take reasonable care when entrusted with the discharge of the defendant’s duty of care: [page 527] Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225; Lepore (2003) 212 CLR 511; 195 ALR 412. Lepore (2003) 212 CLR 511; 195 ALR 412 raised the question as to whether a plaintiff could sue for breach of a non-delegable duty if the act complained of was intentional. Of the members of the High Court, only McHugh J thought that a plaintiff could sue in negligence even if the act was deliberate: at [161]. Gleeson CJ held that an intentional act is different from a failure to take care, which is what negligence involves: at [31]. In their joint judgment, Gummow and Hayne JJ held that to extend non-delegable duties to include intentional acts was to sever the link with negligence: at [266]. Justice Callinan agreed with Heydon JA’s dissent in the New South Wales Court of Appeal decision ((2001) 52 NSWLR 420), rejecting the argument that a nondelegable duty could be owed for intentional acts: at [340]. Kirby J held that nondelegable duties should not be applied if vicarious liability could be utilised: at [290]. The Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report, examined the issues with the current the Australian law in respect of intentional torts and non-delegable duties. It was recognised that the development of the law in this area, along with the doctrine of vicarious liability (see 20.40), left the victims of abuse without redress in many cases, or cases settled without going to court because of the uncertainty in this area. The report recommended:

State and territory governments should introduce legislation to impose a non-delegable duty on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution (recommendation 89). … state and territory governments should introduce legislation to make institutions liable for institutional child sexual abuse by persons associated with the institution unless the institution proves it took reasonable steps to prevent the abuse (recommendation 91).

Breach of the duty 20.82 Recognition of a duty as non-delegable does not impose strict liability upon the defendant. In Lepore, the respondents had been sexually assaulted by teachers. It was argued that the appellants were liable as the duty owed to the students was a non-delegable one. The High Court held that, although the duty is recognised as being non-delegable, if there is no evidence of fault on the part of the party on whom the duty is imposed, there is no liability: at [38], [126] and [291]. This approach affirmed the decision of Rich v Queensland; Samin v Queensland (2001) Aust Torts Reports ¶81-626, where the Queensland Court of Appeal held that the interpretation that the duty upon the school imposed strict liability was incorrect. McPherson JA stated (at 67,391): [The non-delegable duty] is not to be equated with a warranty, promise or an undertaking to indemnify or hold them harmless against injury. It goes no further than a duty by the State requiring it to take reasonable steps to prevent them from being harmed. It does not guarantee the safety of schoolchildren against sources or events like mad dogs, venomous snakes, kidnappers, serial killers and rapists, and other dangerous hazards of life, unless it is shown that they ought in the circumstances to have been foreseen and guarded against by the State; or in other words,

[page 528] that reasonable steps might and should have been taken by the State as the school authority to prevent danger from sources like those.

20.83

The High Court is very wary of imposing a non-delegable duty if the

scope of the duty is one that could not be discharged even by ‘reasonable adapted preventative measures’: Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 at [125] per Kirby J. In Leichhardt Municipal Council v Montgomery, Gleeson CJ stated (at [23]): To speak of a local council having a duty to ensure that such an apparently low-level and singular act of carelessness does not occur is implausible. It is one thing to find fault on the part of council officers where there has been a failure to exercise reasonable care in supervising the work of a contractor, or in approving a contractor’s plans and system of work. It is another thing to attribute to the council a legal duty of care which obliges the council to do the impossible: to ensure that no employee of the contractor behaves carelessly. The problem is even more acute if the source of this duty of care is said to be found in statute. One of the things that is special about this duty is that it is a duty to do the impossible. That is unlikely to have been intended by the legislature.

Callinan J stated that if the effect of imposing a non-delegable duty is to impose strict liability, the High Court will go against such a finding: at [188].

Legislation 20.84 The Ipp Report8 recommended that civil liability legislation should ensure that plaintiffs could not take their action based on a non-delegable duty in an attempt to avoid the application of the legislation: recommendation 43. Very few of the jurisdictions have adopted this recommendation. Civil liability legislation that does address the issue of the non-delegable duty provides that, if a non-delegable duty has been breached, the defendant will only be liable to the same extent that they would be liable if they were vicariously liable: Civil Liability Act 2002 (NSW) s 5Q; Wrongs Act 1958 (Vic) s 61. In Queensland and Tasmania, the legislation provides that it applies to non-delegable duties: Civil Liability Act 2003 (Qld) Sch 2, definition of ‘claim’; Civil Liability Act 2002 (Tas) s 3C.

4

Indemnities

20.85 Where a party is held to be vicariously liable for the tortious conduct of another, liability is imposed upon a party who has committed no wrong. However, it is possible that a party, who has been held to be liable vicariously, may be indemnified by the party which committed the tort: Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555. 20.86 A right to an indemnity is a right to be compensated for any liability or loss that is incurred. Under the common law, an employer may claim an indemnity from a tortious employee if they have been held to be vicariously liable. The employee is required to compensate the employer with respect to the damages that the employer has had to pay. This rule derives from the case of Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555, where the plaintiff (Romford Ice) was vicariously liable for personal injuries caused [page 529] by its employee (Lister). The insurer of Romford Ice enforced its right of subrogation and argued that there was an implied term in the contract of employment that the employee would take reasonable care in the performance of his or her duties and that any failure to exercise reasonable care amounted to a breach of contract. Therefore, the contract required the employee to indemnify the employer for any damages paid due to his or her negligence. The House of Lords agreed with this argument, relying on policy considerations to support the conclusion, for example that to grant immunity to an employee would encourage irresponsibility: at 579. 20.87 The rule in Lister v Romford Ice & Cold Storage Co Ltd still applies, subject to some exceptions and abrogation by legislation. An example of a common law exception is Kelly v Alford [1988] 1 Qd R 404, which involved personal injury to an employee arising out of the use of an unregistered prime mover and refrigerated van. The court held that a vehicle in constant use on

public roads was required to be registered and could not be used lawfully without registration. The vehicle was driven by a fellow employee on the premises of the employer and a senior officer of the employer was the registered owner. The court held there was an implied term in the contract of service that the employer would not require the employee to do anything which was unlawful and that the employer impliedly warranted to the employee driver that the vehicle was registered and insured. In these circumstances, the employee driver was entitled to a complete indemnity from the employer. In FAI General Insurance Co Ltd v A R Griffiths & Sons Pty Ltd (1997) 71 ALJR 651, the High Court declined the opportunity to modify the common law position on the basis that it was more appropriately a task for legislatures. The rule in Lister v Romford Ice has been modified in many jurisdictions: see 21.25 20.88 See New South Wales v Eade [2006] NSWSC 84, where the state claimed against a police officer who had been found liable for the torts of false imprisonment and malicious prosecution. As his employer, the state was vicariously liable by application of the Law Reform (Vicarious Liability) Act 1983 (NSW). The state claimed the damages against the police officer, as s 5 of the Employees Liability Act 1991 (NSW) states that the Law Reform (Vicarious Liability) Act does not apply if the conduct that constitutes the tort is serious and wilful misconduct or is not in the course of the employment. As the conduct of the police officer was serious and wilful, although in the course of employment, the state was entitled to cross-claim against its employee.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 26.

C Beuermann, ‘Conferred Authority Strict Liability and Institutional Child Sexual Abuse’ (2015) 37 Syd LR 113. —, ‘Tort Law in the Employment Relationship: A Response to the Potential Abuse of an Employer’s Authority’ (2014) 21 TLJ 169. [page 530] G E Dal Pont, ‘Agency: Definitional Challenges Through the Law of Torts’ (2003) 11 TLJ 68. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 17. L McCarthy, ‘Vicarious Liability in the Agency Context’ (2004) 4 QUTLJJ 1. P Vines, ‘New South Wales v Lepore; Samin v Queensland; Rich v Queensland: Schools’ Responsibility for Teachers’ Sexual Assault: NonDelegable Duty and Vicarious Liability’ (2003) 27 MULR 612. J Wangmann, ‘Liability for Institutional Child Sexual Assault: Where does Lepore Leave Australia?’ (2004) 28 MULR 169.

1.

Citing J Fleming, The Law of Torts, 9th ed, Law Book Co, Sydney, 1998, p 434.

2.

ALRC, Report No. 92, October (2001), pp 491–2.

3.

QLRC, Report No. R56, December (2001), pp 56–7.

4.

Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report (2015).

5.

See P Vines, ‘New South Wales v Lepore; Samin v Queensland; Rich v Queensland: Schools’ Responsibility for Teachers’ Sexual Assault: Non-Delegable Duty and Vicarious Liability’ (2003) 27 MULR 612.

6.

See also C Beuermann, ‘Conferred Authority Strict Liability and Institutional Child Sexual Abuse’ (2015) 37 Syd LR 113; J Wangmann, ‘Liability for Institutional Child Sexual Assault: Where does Lepore Leave Australia?’ (2004) 28 MULR 169.

7.

See G E Dal Pont, ‘Agency: Definitional Challenges through the Law of Torts’ (2003) 11 TLJ 68.

8.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

[page 531]

Chapter 21 Multiple Tortfeasors 1

Introduction

21.1 The term ‘multiple tortfeasors’ has a long and complex history, both at common law and under the legislation enacted to modify the common law rules. The interpretation of the legislation has itself produced considerable uncertainty and litigation. As Gaudron and Gummow JJ commented in James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268 at [7], the legislation ‘has become notorious for the conceptual and practical difficulties it engenders’; see also Kirby J’s comments in Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616 at [72]. 21.2 The term multiple tortfeasors encompasses three different legal relationships: 1.

joint tortfeasors — defendants whose combined tortious conduct cause the plaintiff’s harm or damage;

2.

several tortfeasors — defendants who are responsible for causing the plaintiff’s damage but the tortious conduct of each was separate from, or independent of, that of the other defendant(s); or

3.

successive tortfeasors — defendants whose independent acts cause different damage to the one plaintiff.

This chapter considers joint and several tortfeasors which are referred to as ‘concurrent tortfeasors’,1 and involve an apportionment of liability, that is, an assessment of each defendant’s contribution to the plaintiff’s damage.

21.3 Concurrent tortfeasors are jointly and severally liable for the whole of the same damage, known as ‘solidary liability’. In contrast, as the conduct of successive tortfeasors is independent and causes different damage to the plaintiff, there is no contribution involved. Each successive tortfeasor is liable only for the damage they have caused. Successive tortfeasors are considered in Chapters 11 and 12. [page 532] The relationship between concurrent and successive tortfeasors may be illustrated as follows:

21.4 At common law, a critical distinction between joint tortfeasors and several tortfeasors was the way in which the plaintiff could respectively sue them: The plaintiff could sue joint tortfeasors either separately or in the same action, but only one judgment for one sum of damages could be given

in favour of the plaintiff. This was the basis of the rule in Brinsmead v Harrison (1872) LR 7 CP 547, which provided that a judgment against one or more of the joint tortfeasors released the other tortfeasors from further liability. This rule applied even if the judgment was not satisfied. It was also the basis of the rule that the release of one joint tortfeasor released all of the other tortfeasors, although a ‘covenant not to sue’ did not have this effect. With several tortfeasors, the plaintiff had a separate cause of action available against each tortfeasor. At common law, this meant that the plaintiff had to sue each tortfeasor separately and they could not be joined as defendants in the one cause of action. The plaintiff could, however, sue each separately in turn until the damage was recovered in full. Being separate causes of action, the rule in Brinsmead v Harrison (1872) LR 7 CP 547 did not apply to several tortfeasors, nor did the release of one tortfeasor release the others.

2

Joint Tortfeasors

21.5 As discussed by Gleeson CJ and Callinan J in Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616, there are three situations in which the relationship of joint tortfeasors might arise: 1.

Vicarious liability: The most common situation giving rise to a relationship of joint tortfeasors is where one person is vicariously liable for another’s tortious conduct. [page 533] For example, employers are vicariously liable for the torts of their

employees: see Chapter 20. See also Baxter v Obacelo Pty Ltd discussed at 21.13. 2.

Engaging in concerted action: Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1 provides an example of persons who engaged in concerted action. The two defendants were television stations: the Sydney-based Channel 9 and the Australian Capital Territory-based Channel 7. Channel 9 produced a program, an episode of ‘The Today Show’, which allegedly defamed the plaintiff. Channel 7, pursuant to a licence agreement, almost instantaneously broadcast the program in the Australian Capital Territory. The High Court held that the transmission of the television program in question was the result of concerted action on the part of Channel 9 and Channel 7 and made them joint tortfeasors. See also The Koursk [1924] P 140 at 159–60.

3.

Breaching a common duty: An extreme example of breaching a common duty is provided by the case of Brooke v Bool [1928] 2 KB 578, where a landlord and a lodger together were looking for a gas leak, each using a naked flame. The lodger’s flame ignited an explosion but the landlord was also held liable for the negligent conduct of the lodger because they were both engaged in the common purpose of seeking the gas leak.

The Legislation 21.6 As noted at 21.4, the rule in Brinsmead v Harrison (1872) LR 7 CP 547 meant that once the plaintiff had secured a judgment against one or more of the joint tortfeasors, no further proceedings against the other tortfeasors were possible. The rule has now been abolished by statute; for example, s 6(a) of the Law Reform Act 1995 (Qld) provides: Proceedings against, and contribution between, joint and several tortfeasors Where damage is suffered by any person as a result of a tort (whether a crime or not) —

(a) judgment recovered against any tortfeasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tortfeasor in respect of the same damage; …

See Civil Law (Wrongs) Act 2002 (ACT) s 20(1); Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(a); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 12(2); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 12(1); Wrongs Act 1954 (Tas) s 3(1)(a); Wrongs Act 1958 (Vic) s 24AA; Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 7. 21.7 Under the legislation, separate judgments may be given against tortfeasors for damage caused by a joint tort, whether in the same or different proceedings, and the sums awarded against the joint tortfeasors need not be the same: Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616. This means, for example, that exemplary damages may be awarded against only one or some of the defendants, and in differing amounts: XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448; 57 ALR 639; De Reus v Gray (2003) 9 VR 432. [page 534] 21.8 Since the legislation provides that the cause of action against joint tortfeasors is no longer one and indivisible, there is now no conceptual basis for the continuation of the rule that the release of one joint tortfeasor releases the others: Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1 per Brennan CJ, Dawson and Toohey JJ.

3 21.9

Several Tortfeasors

At common law, several concurrent tortfeasors could not be sued

together in the one action. Instead, a plaintiff had to sue each tortfeasor separately until the damage was recovered in full. The practice rules of the various Australian courts now permit the joinder of parties who are severally responsible for the same damage, so that several tortfeasors, like joint tortfeasors, may be sued in the one action or separately: Barker v Permanent Seamless Floors Pty Ltd [1983] 2 Qd R 561. 21.10 The legislation abolishing the rule in Brinsmead v Harrison (1872) LR 7 CP 547 does not apply to several tortfeasors, as the common law rule only applied to joint tortfeasors. However, the other provisions of the legislation abolishing the rule in Brinsmead v Harrison do apply to both joint and several tortfeasors. It is possible that circumstances may arise where the distinction between joint tortfeasors being liable for the same torts and several tortfeasors being liable for different torts causing the same damage is significant.

4

Concurrent Tortfeasors

21.11 The removal of the prohibition against bringing more than one action against joint tortfeasors raised the possibility of a plaintiff bringing a series of actions against the individual tortfeasors in a manner which was potentially both economically inefficient and unjust. Similar concerns existed in relation to the possibility of bringing serial actions against several tortfeasors. This concern about serial litigation has been reduced by the legislative provisions. 21.12 If the plaintiff does take an action against another concurrent tortfeasor, they are not entitled to costs of the action unless the court considers there were reasonable grounds for taking the actions separately.

See Civil Law (Wrongs) Act 2002 (ACT) s 20(2)(b); Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 12; Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(b); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 12(3)(b); Law Reform Act 1995 (Qld) s 6(b); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 12(1), (2)(b), (3); Wrongs Act 1954 (Tas) s 3(1)(b); Wrongs Act 1958 (Vic) s 24AB; Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 7(1)(b). Further, the legislation provides that the amount of damages awarded in the first action against one concurrent tortfeasor will set the upper limit for recovery in total against all the concurrent tortfeasors. See Civil Law (Wrongs) Act 2002 (ACT) s 20(2)(a); Law Reform [page 535] (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(b); Law Reform (Contributory Negligence and Apportionment) Act 2001 (SA) s 5(2) and (3); Tortfeasors and Contributory Negligence Act 1954 (Tas) s 3(1). The exception is Victoria where there is no cap on the aggregate of damages that may be recovered. 21.13 In Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616, the plaintiff, Obacelo, had brought a single action against both Baxter, the solicitor who allegedly was negligent in the conduct of a conveyancing transaction, and his employer. The plaintiff was seeking compensation in excess of $430,000, but signed a deed of release, embodied in a consent judgment, with the employer for the sum of $250,000. In the continuance of the original action against Baxter, Obacelo was seeking recovery of the balance of the $430,000. Baxter argued that the operation of legislation, in this case s 5(1)(b) of the Law Reform

(Miscellaneous Provisions) Act 1946 (NSW), should defeat the plaintiff’s action. The main argument relied upon by Baxter was that the $250,000 agreed to in the deed of release represented full satisfaction of the plaintiff’s rights against Baxter or anyone else. This argument was rejected by the High Court: In the present case, the deed of release, the terms of settlement, and the conduct of the parties to the settlement, clearly showed that it was contemplated that the respondents would pursue their claim against the appellant, and that they were not accepting the sum of $250,000 in full satisfaction of the loss or damage they said they incurred. There is no reason why they should be prevented from continuing with their claim against the appellant: at [49] per Gleeson CJ and Callinan J.

The court did concede that, in some cases, it would be inconsistent with established common law and equitable principles to allow further recovery if: … either expressly or by implication, a settlement agreement manifested a common intention of the parties to the agreement that the settlement sum was to be paid and received in full satisfaction of the rights of the plaintiff, against the defendant or anyone else: at [48].

21.14 The decision in Baxter v Obacelo Pty Ltd only applies where all the tortfeasors have been joined as parties to the original action. If further separate actions are brought, then the legislative provisions will restrict recovery to the damages awarded in the first judgment given and ‘the plaintiff will not be entitled to costs unless the court is of opinion there were reasonable grounds for bringing the action’. The High Court did not indicate what would constitute ‘reasonable grounds’; however, such circumstances might be where the plaintiff was unaware of the existence or identity of the additional defendants.2

Contribution by Concurrent Tortfeasors 21.15 At common law, one joint tortfeasor, who paid for all of the damage, could not obtain a contribution from the other concurrent tortfeasors (the rule in Merryweather v Nixan (1799) 8 Term Rep 186; 101 ER 1337), except

perhaps in the case of principal and agent: Adamson v Jarvis (1827) 4 Bing 66; 130 ER 693. [page 536] 21.16 The rule in Merryweather v Nixan has been abolished under the legislation. In Queensland, the Law Reform Act 1995 s 6(c) provides: (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tortfeasor or otherwise so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by the person in respect of the liability in respect of which contribution is sought.

See also Civil Law (Wrongs) Act 2002 (ACT) s 21(1); Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(1)(c); Law Reform (Miscellaneous Provisions) Act (NT) s 12(4); Law Reform (Contributory Negligence and Apportionment) Act 2001 (SA) s 6(1); Wrongs Act 1954 (Tas) s 3(1)(c); Wrongs Act 1958 (Vic) s 23B(1); Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 7(1)(c). 21.17 The High Court held in AMACA Pty Ltd v New South Wales (2003) 199 ALR 596; 77 ALJR 1509 that a claimant for contribution under the legislation must satisfy that: The claim for contribution is ‘in respect of the same damage’: The meaning of this term was considered by the High Court in Alexander v Perpetual Trustees WA Ltd (2003) 216 CLR 109; (2004) 204 ALR 417. The majority of the court (Gleeson CJ, Gummow and Hayne JJ) held that the term should be given a narrow meaning so that contribution may be claimed only where the claimant could establish that the potential contributor is liable for the same damage to the same plaintiff. As the majority stated: ‘The relevant enquiry is not confined to whether the damage for which each is liable can be said to be the

same; both claimant and potential contributor must be liable to the injured plaintiff’: at [32]. In regard to physical injuries, the particular injury for which the claimant is seeking a contribution must be the same and not just a part of a physical disability taken as a whole: Dillingham Constructions Pty Ltd v Steel Mains Pty Ltd (1975) 132 CLR 323; 6 ALR 171; Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522; 59 ALR 722. The claimant must have been held liable: The tortfeasor claiming contribution from other concurrent tortfeasors must be able to establish that the claimant itself has been held liable to the original plaintiff: Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport (1955) 92 CLR 200. Alternatively, the claimant may be able to prove liability to the original plaintiff through accord and satisfaction by showing payment under a reasonable settlement: Bitumen and Oil Refineries (Aust) Ltd v Commissioner for Government Transport; Stott v West Yorkshire Road Car Co Ltd [1971] 2 QB 651. The tortfeasor is, or would, if sued, have been held liable: This requirement covers two situations: –

those who have come under an obligation to pay money in respect of the same damage; and

–

those who, not having been sued by the injured party, would, had they been sued, have been found to have caused, or contributed to, the same damage by [page 537] a tortious act: Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213 at 218–19 per Barwick J, cited with approval by Gaudron and Gummow JJ in James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268.

21.18 In James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268, the plaintiff was seeking contribution from a tortfeasor who had had a consent judgment entered in its favour in an action originally brought against three tortfeasors. In the same action, judgment was entered against the two other tortfeasors of whom the present claimant was one. The High Court held that the time for challenging entry of judgment in favour of the third tortfeasor was prior to the consent judgment being entered. There is no third category ‘which identifies a person from whom contribution may be recovered by reference to the circumstance that this person has been sued and been held not liable’: at [35]. 21.19 There may also be circumstances where a tortfeasor may not be liable for contribution because legislation is in place which denies a cause of action against that tortfeasor. In Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136; 173 ALR 619, the Commonwealth employer did not come within the operation of the contribution legislation because the injured employee had not made an election as required by the Safety, Rehabilitation and Compensation Act 1988 (Cth) s 45. In these circumstances, the employer was not a tortfeasor who would, ‘if sued’, have been found liable and could not be joined to the action by the third party against whom the employee had brought the action. 21.20 The term ‘if sued’ has no temporal connotation and should be construed to mean ‘if sued at any time’: Brambles Constructions Pty Ltd v Helmers (1966) 114 CLR 213; James Hardie & Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53; 159 ALR 268. 21.21 If a decision has been made, it is res judicata (the matter cannot be raised again in a court). However, note that in Victoria, a finding of a tortfeasor’s non-liability will only defeat a claim by another tortfeasor if that finding of non-liability was determined after a trial on the merits: Wrongs Act 1958 (Vic) s 23B(1).

Assessment of Contribution 21.22 The apportionment legislation provides for assessment of the amount of contribution. Section 7 of the Law Reform Act 1995 (Qld) provides: In any proceedings for contribution under this division the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity.

See also Civil Law (Wrongs) Act 2002 (ACT) s 21(2) and (3); Law Reform (Miscellaneous Provisions) Act 1946 (NSW) s 5(2); Law Reform (Miscellaneous Provisions) Act (NT) s 13; Law Reform (Contributory Negligence and Apportionment) Act 2001 (SA) s 6(5) and (7); Tortfeasors and Contributory Negligence Act 1954 (Tas) s 3(2); Wrongs Act 1958 (Vic) s 24(2); Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s 7(2). [page 538] 21.23 In AMACA Pty Ltd v New South Wales (2003) 199 ALR 596; 77 ALJR 1509 at [15], the High Court unanimously held that there are three possible outcomes in contributions proceedings: (i)

recovery of an amount such as may be found by the court to be just and equitable having regard to the extent of the contributing party’s responsibility for the damage;

(ii) an order exempting any person from liability to make contribution; and (iii) a direction that the contribution to be recovered should amount to a complete indemnity.

In that decision, the court also posed the question of whether it would ever be proper to totally exempt a negligent party from liability to contribute except in circumstances ‘where the party to be exempted was not at fault but found liable for some form of strict liability’: at [20].

21.24 In considering what is just and equitable, the courts will have regard to the conduct of each party and, in a negligence action, the variation by each from the standard expected of the reasonable person: Grima v RFI (Aust) Pty Ltd [2015] NSWSC 332; Dare v Dobson [1960] SR (NSW) 474. Failure to raise a defence based upon the expiry of the limitation period will be relevant: Cridge v Commonwealth (1961) 10 FLR 275. Also relevant is the limitation by law of liability (for example, workers compensation or the civil liability legislation) of the tortfeasor to the original plaintiff to a particular sum: Unsworth v Commissioner for Railways (1958) 101 CLR 73; Leonard v Smith (1992) 27 NSWLR 5.

Indemnity and the Rule in Lister v Romford Ice 21.25 At common law, an employer held vicariously liable for the tort of an employee may be entitled to a complete indemnity from the employee: Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555. In Lister, the employer company had employed the defendant employee as a lorry driver. His father was employed as his mate. In the course of their employment, the defendant driver negligently backed the truck into his father, causing personal injuries. Upon being sued by the father, the employer was held liable to the father and paid damages which they obtained from their indemnity insurers. The insurers exercised their right of subrogation to obtain a full indemnity from the son. A majority of the House of Lords found that it was an implied term of the contract of employment that the employee would perform his duties with proper care. Breach of that term gave a right to recover the losses flowing from that breach of contract. The decision caused great consternation because, if employees again became the ones who had to bear the costs of workplace accidents, rather than their employers or their employers’ insurance carriers, there would then be the potential for massive industrial unrest.

21.26 The reaction to the judgment was swift. Under threat of legislative action in England, the insurers agreed not to exercise rights of subrogation against employees in industrial accident cases. In New Zealand, legislation was introduced but not proceeded with and no reported case has occurred since. The indemnity has been abolished by the Employees Liability Act 1991 (NSW) s 3; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 22A; and the Civil Liability Act 1936 (SA) s 59. In addition, s 66 of the Insurance [page 539] Contracts Act 1984 (Cth) abolishes the right of subrogation in insurers in the case of actions by employers against negligent employees. 21.27 However, in those states where the common law position remains unchanged by legislation, the High Court in FAI General Insurance Co Ltd v A R Griffiths & Sons Pty Ltd (1997) 71 ALJR 651 at 651 indicated that it is preferable that a ‘legislative rather than a judicial solution be found’ to any difficulties created by the decision in Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555. In the 2001 Queensland Law Reform Commission report, Vicarious Liability,3 recommended that legislation be introduced to abrogate the rule in Lister except where, similar to other states’ legislation, the employee’s conduct amounted to serious and wilful misconduct.

5

Proportionate Liability

21.28 The above discussion in regard to concurrent liability for joint and several tortfeasors applies equally to claims for personal injury, property damage and pure economic loss. In regard to claims for property damage and pure economic loss, there were suggestions made during the mid- to late-

1990s by several Australian state and New Zealand law reform bodies that solidary liability should be replaced by proportionate liability. 21.29 The principle of solidary liability means that concurrent tortfeasors are each jointly and severally liable to compensate the plaintiff for the whole of the harm suffered by the plaintiff, regardless of their respective degree of responsibility for that harm. The apportionment of the damages between the concurrent tortfeasors is a matter to be determined under the relevant legislation and is, generally, of no concern to the plaintiff. 21.30 Under a proportionate liability system, however, each tortfeasor is liable only for the share of the harm for which they were responsible.4 In effect, proportionate liability means that it is the plaintiff who must bear the loss, rather than the other defendants, when there is an unidentified or insolvent concurrent tortfeasor. For this reason, suggestions to replace solidary liability with proportionate liability have been restricted to property and pure economic loss claims and have excluded compensation claims relating to personal injuries. 21.31 The replacement of solidary liability with proportionate liability is especially supported by professional groups, such as engineers, surveyors, accountants and solicitors, who are often targeted by plaintiffs because they carry insurance and are generally regarded as having ‘deep pockets’. To some extent, these concerns of professional groups have been ameliorated, in some jurisdictions, by the passing of legislation which allows occupational associations, including professional and trade groups, to obtain professional indemnity insurance limiting their exposure to liability within specified insurable limits. Obtaining [page 540]

the protection of the legislation also ensures that there are sufficient funds available for professional liability claims if, and when, they occur. 21.32 While the Ipp Report recommended the retention of solidary liability for personal injuries awards (see [12.2] of the Report),5 some of the civil liability legislation has included provisions relating to proportionate liability for property damage and pure economic loss. Some jurisdictions included the provisions in existing legislation that deal with apportionment: see Civil Law (Wrongs) Act 2002 (ACT) Ch 7A; Civil Liability Act 2002 (NSW) Pt 4; Proportionate Liability Act 2005 (NT); Civil Liability Act 2003 (Qld) Ch 2, Pt 2; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) Pt 3; Civil Liability Act 2002 (Tas) Pt 9A; Wrongs Act 1958 (Vic) Pt IVAA; Civil Liability Act 2002 (WA) Pt 1F. In Yates v Mobile Marine Repairs Pty Ltd [2007] NSWSC 1463 at [93]–[94], the proportionate liability scheme, as introduced by Pt 4 of the New South Wales Civil Liability Act 2002, was explained: The object of Pt IV CLA is remedial and it dramatically changes the previous law. Formerly, a plaintiff could choose to sue only one of several wrongdoers who caused the same loss and the Court could enter judgment for the whole of that loss against the defendant. Even if the defendant cross claimed in the proceedings for indemnity or contribution against the other wrongdoers, the plaintiff could enforce a judgment against the defendant alone for the whole of the loss, leaving the defendant to recover from the cross defendants, if it could. Sometimes the defendant obtained judgment against a cross defendant but could not recover the judgment because of the cross defendant’s insolvency. Part IV is designed to alleviate this perceived injustice. It is intended to visit on each concurrent wrongdoer only that amount of liability which the Court considers “just”, having regard to the comparative responsibilities of all wrongdoers for the plaintiff’s loss. How the Court is to assess what is “just” is not explained. The Court must exercise a large discretionary judgment founded upon the facts proved in each particular case. The principles upon which the Court will exercise this discretionary judgment will come to be developed on a case-by-case basis. However, it seems clear enough that the policy of Pt IV is that a wrongdoer who is, in a real and pragmatic sense, more to blame for the loss than another wrongdoer should bear more of the liability. This calls for the exercise of the same kind of judgment as the Court exercises in apportioning responsibility as between a defendant sued in tort for negligence and a plaintiff who, by his or her own negligence, has been partly responsible for the injury.6

21.33 For the proportionate liability provisions of the relevant legislation to apply: the claim against the defendant must be an ‘apportionable claim’; the defendant must be a concurrent wrongdoer; and the Act does not exclude the defendant’s liability from being apportioned. [page 541]

Apportionable Claim 21.34 Every jurisdiction, except for South Australia, defines ‘apportionable claim’ as a claim for damages for property or economic loss. The loss must arise from a breach or a failure to take reasonable care (or in Queensland, a breach of duty of care), whether in tort, contract or under statute. See Civil Law (Wrongs) Act 2002 (ACT) s 107B(2); Civil Liability Act 2002 (NSW) s 34(1); Proportionate Liability Act 2005 (NT) ss 3, 4(2); Civil Liability Act 2003 (Qld) s 28(1)(a); Civil Liability Act 2002 (Tas) s 43A(1); Wrongs Act 1958 (Vic) s 24AF(1); Civil Liability Act 2002 (WA) s 5AI(1). In South Australia the legislation defines ‘apportionable liability’ as property and economic loss, not including economic loss consequent on personal injury, where two or more wrongdoers, who are not joint tortfeasors, commit a negligent and innocent wrongdoing: Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 3(2).

Concurrent Wrongdoer 21.35 Section 34(2) of the Civil Liability Act 2002 (NSW) defines ‘concurrent wrongdoer’ as:

… a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.

See also Civil Law (Wrongs) Act 2002 (ACT) s 107D(1); Proportionate Liability Act 2005 (NT) s 6(1); Civil Liability Act 2002 (Tas) s 43A(2); Wrongs Act 1958 (Vic) s 24AH(1); Civil Liability Act 2002 (WA) s 5AI. The Queensland and South Australian legislation does not include joint wrongdoers: Civil Liability Act 2003 (Qld) s 30(1); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 3(2)(b). 21.36 In Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; 296 ALR 3, the High Court had to consider the issue of who was a concurrent wrongdoer for the purposes of the New South Wales legislation, Civil Liability Act 2002 Pt 4. The focus of the court was on the meaning of ‘damage or loss that is the subject of the claim’ contained in the definition of ‘concurrent wrongdoer’ in s 34(2). In that case, a person forged the signature of their business partner to secure loans from the respondent of just over $1 million. The loans were secured by a mortgage which failed to include a covenant for the repayment of the sum advanced; instead referring to the money advanced to the business partner whose signature had been forged. As it was fraud, the loan agreements were void and the business partner was not liable and therefore the mortgage secured nothing. As a result, the respondent could not recover any of the money. The appellant argued that its negligence in the preparation of the mortgage was not a cause of the respondent’s loss; it was the fraud, as without the fraud, the loans would not have been made and the mortgage would not have been registered. A majority of the court, French CJ, Hayne and Kiefel JJ, held that the loss suffered by the respondent for the purpose of s 34(2) was that it was unable to recover the money it had advanced: at [28]. Therefore the appellant was a concurrent wrongdoer under the Act. [page 542]

21.37 To be a concurrent wrongdoer, the defendant must be legally liable to the plaintiff. In Shrimp v Landmark Operations Ltd (2007) 163 FCR 510, the definition of ‘concurrent wrongdoer’ as in s 87CB(3) of the Trade Practices Act 1974 (Cth) (repealed) was considered, which is consistent with the definition above. Besanko J held (at [62]): The definition of concurrent wrongdoer seems to be the critical subsection and, in my opinion, the word “caused” in s 87CB(3) should be read as meaning such as to give rise to a liability in the concurrent wrongdoer to the plaintiff or applicant.

See also St George Bank Ltd v Quinerts Pty Ltd (2009) 25 VR 666 at [64], where Shrimp v Landmark Operations Ltd was applied to the proportionate liability provisions in the Wrongs Act 1958 (Vic). 21.38 Due to the definitions in the Queensland and South Australian legislation, a wrongdoer and the party who is vicariously liable for the tort of that wrongdoer, are not within the ambit of the proportionate liability provisions as their liability as wrongdoers is joint. As for the other jurisdictions, where joint tortfeasors are included, McDonald has reasoned that: It may be that this definition [of “concurrent wrongdoer”] implies either a separate act or omission by each person or an actual joint performance of one act or a joint omission to fulfil a duty (eg, joint occupiers negligently light or fail to extinguish a fire) and that it was not intended to apply where there is a “deemed” joint liability.7

Exclusions 21.39 The legislation of each jurisdiction varies as to what specific types of claims are excluded from the application of the proportionate liability provisions. For example, in Queensland, claims by consumers are not apportionable claims (Civil Liability Act 2003 (Qld) s 28(3)(b)) and in New South Wales claims for damages for breach of statutory warranty are excluded: Civil Liability Act 2002 (NSW) s 34(3A). 21.40

All of the jurisdictions address the liability of a defendant who is

fraudulent or intentionally caused the plaintiff’s loss. For example, in Queensland a fraudulent or intentional wrongdoer ‘is severally liable for the damages awarded against any other concurrent wrongdoer to the apportionable claim’: Civil Liability Act 2003 (Qld) ss 32D and 32E. In Victoria, no reference is made to a wrongdoer who intentionally caused the loss, but if they were fraudulent, s 24AM of the Wrongs Act 1958 provides that they are ‘jointly and severally liable for the damages awarded against any other defendant in the proceeding’. The other jurisdictions, except for South Australia which refers to negligent or innocent actions of a wrongdoer in the definition of ‘apportionable liability’, identify a fraudulent or intentional wrongdoer as an ‘excluded concurrent wrongdoer’ and the law relevant outside the proportionate liability provisions applies. See Civil Law (Wrongs) Act 2002 (ACT) s 107E; Civil Liability Act 2002 (NSW) s 34A; Proportionate Liability Act 2005 (NT) s 7; Civil Liability Act 2002 (Tas) s 43A(5); Civil Liability Act 2002 (WA) s 5AJA. [page 543]

Apportioning Liability 21.41 The proportionate liability legislation requires that the court assess the concurrent wrongdoer’s proportion of the loss. For example, s 31(1) of the Civil Liability Act 2003 (Qld) states: In any proceeding involving an apportionable claim — (a) the liability of a defendant who is a concurrent wrongdoer in relation to the claim is limited to an amount reflecting that proportion of the loss or damage claimed that the court considers just and equitable having regard to the extent of the defendant’s responsibility for the loss or damage; …

See also Civil Law (Wrongs) Act 2002 (ACT) s 107F(1)(a) (‘just’); Civil Liability Act 2002 (NSW) s 35(1)(a) (‘just’); Proportionate Liability Act 2005 (NT) s 13(1)(a) (‘just’); Law Reform (Contributory Negligence and

Apportionment of Liability) Act 2001 (SA) s 8(2) (‘fair and equitable’); Civil Liability Act 2002 (Tas) s 43B(1)(a) (‘just’); Wrongs Act 1958 (Vic) s 24AI(1) (a) (‘just’); Civil Liability Act 2002 (WA) s 5AK(1)(a) (‘just’). 21.42 In Reinhold v New South Wales Lotteries Corporation (No 2) (2008) 82 NSWLR 762, the contribution between two defendants had to be determined. The plaintiff had requested a ticket at the newsagent, but it only partially printed so another terminal at the newsagent was used to print a second ticket. The plaintiff paid for the second ticket and the employee of the newsagent sought advice from the Lottery Corporation as to the partially printed ticket. Due to a misunderstanding, the second ticket was cancelled instead of the partially printed ticket. The plaintiff’s cancelled ticket won the first division prize of $2 million. He was awarded $2 million in damages for the breach of contract and negligence by the Lottery Corporation and the newsagent. In assessing the contribution of each defendant, Barrett J stated (at [60]): Because the legislature has seen fit to adopt in s 35(1)(a) of the Civil Liability Act [(NSW)] a form of words concerning apportionment which is almost indistinguishable from that which has long been used in statutes concerning contributory negligence and contribution among tortfeasors, I consider it appropriate to follow approaches to the meaning of those words developed and sanctioned by appellate courts. I therefore approach the matter before me on the basis that my principal task is to make findings about (a) the degree of departure from the standard of care of the reasonable man, as regards the causative conduct of [the Lotteries Corporation] and the Newsagents; and (b) the relative importance of the acts of [the Lotteries Corporation] and the Newsagents in causing the economic loss suffered by Mr Reinhold, making a comparative examination of the whole conduct of each of [the Lotteries Corporation] and the Newsagents in relation to the circumstances in which the loss was sustained.

In considering the evidence, Barrett J found that the Lotteries Corporation was in charge of the computer system and it was reasonable for an employee of a newsagency to contact them and follow their instructions for cancelling the ticket. The employee of the Lotteries Corporation had not followed standard procedure, but the newsagent had also been negligent in failing to

take steps to notify its employees of the procedures for partial tickets and their cancellation: at [72]. It was thought that the Lotteries Corporation had a [page 544] ‘significantly greater degree of culpability’ and was a ‘very significantly stronger causative force’ and had departed from the expected standard of care to a greater degree than the newsagent: at [80]. Apportionment was assessed as 90 per cent to the Lotteries Corporation and 10 per cent to the newsagent. See also George v Webb [2011] NSWSC 1608; Chandra v Perpetual Trustees Victoria Ltd (2007) 13 BPR 24,675; Aust Torts Reports ¶81-896; [2007] NSWSC 694.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 29. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 18. B McDonald, ‘Proportionate Liability in Australia: The Devil in the Detail’ (2005) 26 Aust Bar Rev 29. J Watson, ‘From Contribution to Apportioned Contribution to Proportionate Contribution’ (2004) 78 ALJ 126.

1.

Consistent with the terminology used by the High Court in Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; 184 ALR 616 at [24]–[25].

2.

A Broadfoot, ‘Multiple Defendant Litigation and the Rule Against Double Recovery’ (2002) 10 TLJ 255.

3.

QLRC, Report R56 (2001), p 114.

4.

See, for example, the situation in the Northern Territory, South Australia and Victoria where proportionate liability has been introduced in legislation covering property damage or pure economic loss caused by building defects: Building Act 1993 (NT); Development Act 1993 (SA); Building Act 1993 (Vic).

5.

Commonwealth of Australia, Review of the Law of Negligence — Final Report (the Ipp Report), October 2002, available at .

6.

See also B McDonald, ‘Proportionate Liability in Australia: The Devil in the Detail’ (2005) 26 Aust Bar Rev 29 at 49.

7.

B McDonald, ‘Proportionate Liability in Australia: The Devil in the Detail’ (2005) 26 Aust Bar Rev 29 at 46.

[page 545]

Chapter 22 Defamation 1

Introduction

22.1 The law of defamation exists to protect personal reputation in the eyes of others. As stated in R v Burdett (1882) 106 ER 873 at 874: One of the most refined conclusions at which a refined state of society can arrive, is, that a man should have a solid property in his reputation. It is one of the greatest privileges that belong to the nature of man …

22.2 Historically, defamation was both a crime and a tort. Even before the Conquest, Anglo-Saxon courts treated personal insult as a serious offence within a local community. In the 10th and 11th centuries, penalties ranged from fines to ritual public confessions, where the offender was required to declare himself or herself a liar while holding the nose, to cutting out the offender’s tongue. The church courts also regarded false accusations of a person’s reputation as a crime and a sin, leading to various forms of punishment, including excommunication. Politically motivated statutes from the 13th century, the scandalum magnatum, sought to punish offenders for slander of magnates. This legislation was re-enacted by successive monarchs up to the 17th century. 22.3 From this mixed background, the common law courts extracted civil remedies for libel for publications in some tangible form, such as writing. Slander became a recognised action on the case for publications which were less tangible, for example the spoken word. As Plucknett points out: There are few chapters in our legal history which illustrate so many different aspects of historical

development as does the history of defamation. Germanic elements, Roman elements, the rise and fall of courts, constitutional conflicts, mechanised printing, and later still mechanised distribution of printed matter, have all played their part in producing the body of law which historical accident has divided in to the two categories of libel and slander.1

22.4 Closely linked with defamation is the tort of injurious falsehood. The action of injurious falsehood is designed to protect traders against false and malicious statements concerning their business, property or goods that inflict economic loss: Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 694. See 24.86ff. [page 546]

2

History of Defamation Law in Australia

22.5 Prior to 1 January 2006, there was no uniform defamation law in Australia despite many attempts to achieve it over the previous 25 years. The law of defamation had been codified in Queensland (Defamation Act 1889) and Tasmania (Defamation Act 1957), but the remaining jurisdictions were predominantly common law supplemented by statute: see, for example, Defamation Act 1974 (NSW). 22.6 It is often the case that defamatory matter is published nationally or at least across different states and/or territories. The disparity between the laws operating in the different Australian jurisdictions promoted confusion, uncertainty and forum shopping, as a more favourable result could be achieved in one jurisdiction with the availability of a defence that was not available in another jurisdiction. The use of the internet added further complications to the law of defamation, as the internet transcends all national and international boundaries and provides many opportunities for defamation. This means that a single publication may extend across Australia

and foreign jurisdictions: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433. 22.7 In 1990, the Attorneys-General of New South Wales, Queensland and Victoria initiated a project resulting in the drafting of similar bills that were introduced to the respective parliaments. However, the bills were never enacted. The Australian Capital Territory Community Law Reform Committee, in 1995, also made recommendations for reform that were criticised and were never taken up. In 1996, there was a Defamation Bill tabled before the New South Wales Parliament that was never enacted. In 2004, the Federal Attorney-General called upon the states and territories to ‘harmonise’ their defamation laws, releasing the discussion paper ‘Outline of Possible National Defamation Law’. In July 2004, a revised outline was released, but, in November, the states and territories released a Defamation Bill containing model provisions that are now the basis of the national defamation law. Instead of a Code, as was suggested by the AttorneyGeneral’s discussion paper, the common law was adopted, except as supplemented, by the proposed legislation.

National Defamation Law 22.8 By mid-2006, model defamation laws were enacted in all Australian jurisdictions — nearly all entitled the Defamation Act and nearly all commenced on 1 January 2006: Civil Law (Wrongs) Act 2002 (ACT) Ch 9 (commenced 23 February 2006); Defamation Act 2005 (NSW); Defamation Act 2006 (NT) (commenced 26 April 2006); Defamation Act 2005 (Qld); Defamation Act 2005 (SA); Defamation Act 2005 (Tas); Defamation Act 2005 (Vic); Defamation Act 2005 (WA). The defamation legislation applies to causes of action on or after the commencement date of the Act. 22.9

The legislation repeals all existing legislation related to defamation,

with the effect that the common law applies as modified by the new legislation: Civil Law (Wrongs) Act 2002 (ACT) s 118; Defamation Act 2005 (NSW) s 6; Defamation Act 2006 (NT) s 5; [page 547] Defamation Act 2005 (Qld) s 6; Defamation Act 2005 (SA) s 6; Defamation Act 2005 (Tas) s 6; Defamation Act 2005 (Vic) s 6; Defamation Act 2005 (WA) s 6. As explained by Basten JA in Fairfax Media Publications Pty Ltd v Bateman (2015) 321 ALR 726 at [144], ‘these provisions conferred on the courts the power to determine relevant aspects of the non-statutory law of defamation, that is, the general law unaffected by current legislative instruments, as appropriate today in Australia’. 22.10 Despite being referred to as the ‘uniform national defamation legislation’, the legislation of each jurisdiction is not identical in all respects.

3

Description of Defamation

22.11 The law of defamation seeks to balance the protection of an individual’s reputation and the right to freedom of expression by others: Jones v Skelton [1963] 3 All ER 952; [1963] 1 WLR 1362. This balance is achieved by the range of defences available: see Chapter 23.

Common Law 22.12 Defamation is the publication of matter which tends to lower a person’s reputation in the estimation of his or her fellows by making them think the less of that person, usually by bringing the person into hatred, contempt or ridicule: Parmiter v Coupland (1840) 6 M & W 105; 151 ER 340.

Libel and slander 22.13 At common law, the law of defamation developed into two separate torts — libel and slander — with the distinction between the two torts being the method in which the defamatory matter was expressed or conveyed. 22.14 Libel A publication in durable form, such as writing, effigies (Monson v Tussauds Ltd [1894] 1 QB 671) or pictures (Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367; Tolley v J S Fry & Sons Ltd [1931] AC 333) is classified as libel, and is actionable without proof of actual damage. This is because as the libel is in a permanent form, damage to reputation is assumed upon publication: Ratcliffe v Evans [1892] 2 QB 524 at 530; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 584. 22.15 Slander A publication in transient form, such as gestures or speech is classified as slander. To establish slander, a plaintiff needs to prove that they have suffered material loss, referred to as ‘special damage’. It became necessary that this actual loss be estimated in money terms. The mere loss of the society of others was not enough: Allsop v Allsop (1860) 5 H & N 534; 157 ER 1292. However, it was sufficient to show a tangible loss deriving from the loss of society, for example the loss of meals, the monetary value of which may be estimated: Albrecht v Patterson (1886) 12 VLR 597. [page 548] 22.16 There were only four exceptional cases in which a slander was actionable at common law without proof of actual damage, due to the recognition that they were damaging to a person’s reputation. These were: 1.

publications alleging unchastity in men or women in relation to a profession and calculated to injure the person in business or professional terms (Albrecht v Patterson (1886) 12 VLR 597;

Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 5); 2.

publications alleging a person was suffering from some infectious or contagious disease (Bloodworth v Gray (1844) 7 Man & G 334; 135 ER 140);

3.

publications alleging the commission of a crime (Gray v Jones [1939] 1 All ER 798); and

4.

publications alleging unfitness for a profession or calling, provided the publication related to the person in a professional capacity: Jones v Jones [1916] 2 AC 481.

22.17 Broadcasts There have been some inconsistent results where the publication has been a combination of durable and transient forms; for example, a written statement read aloud was held to be a libel in Forrester v Tyrell (1893) 9 TLR 257 but a slander in Meldrum v Australian Broadcasting Co Ltd [1932] VLR 425. The uncertainty concerning the distinction between libel and slander arises most acutely in relation to radio and television broadcasts and recordings containing defamatory statements, since usually there is a tape or disc being used by the broadcaster which is in durable form, although the actual publication is transient when published. Section 206 of the Broadcasting Services Act 1992 (Cth) provides: For the purposes of the law of defamation, the broadcasting or datacasting of matter is taken to be publication of the matter in a permanent form.

See also Church of Scientology Inc v Anderson [1980] WAR 71; (1979) 46 FLR 202; Mickelbreg v 6PR Southern Cross Radio Pty Ltd (2001) 24 WAR 187.

Defamation Acts 22.18 The Defamation Acts do not define defamation, so the common law principles continue to define the action. However, the distinction between libel and slander no longer exists in any Australian jurisdiction. Therefore, there is no need for a plaintiff to prove special damage in an action in

defamation as damage is presumed: Civil Law (Wrongs) Act 2002 (ACT) s 119; Defamation Act 2005 (NSW) s 7; Defamation Act 2006 (NT) s 6; Defamation Act 2005 (Qld) s 7; Defamation Act 2005 (SA) s 7; Defamation Act 2005 (Tas) s 7; Defamation Act 2005 (Vic) s 7; Defamation Act 2005 (WA) s 7.

4

Jurisdiction

22.19 One of the objectives of the national defamation legislation was to prevent forum shopping by plaintiffs, that is, prevent plaintiffs from taking action in a jurisdiction that would give them a better result. However, jurisdiction will still be an issue if there is publication outside of an Australian jurisdiction. With the increasing use of modern technology, there is a greater risk of defamatory material being available to a wider audience. The publication of defamatory material on [page 549] the internet raises the issue as to which is the appropriate jurisdiction in which to bring an action in defamation. 22.20 This jurisdictional issue has been recognised by the defamation legislation. For example, s 11 of the Defamation Act 2005 (Qld) provides for choice of law rules for matters that are published wholly or partly within an Australian jurisdiction. If the matter is published only within a single Australian jurisdiction, the defamation law of that place applies: Defamation Act 2005 (Qld) s 11(1). If the matter is published in more than one Australian jurisdiction, the law of the jurisdiction with which the harm from the

publication has its closest connection will apply: Defamation Act 2005 (Qld) s 11(2). 22.21 To determine which Australian jurisdiction is relevant in such a situation, the court may take into account the normal residence of the plaintiff, the extent of the publication in each relevant jurisdiction, the extent of harm sustained by the plaintiff in each relevant jurisdiction and any other matter the court thinks relevant: Defamation Act 2005 (Qld) s 11(3). See also Civil Law (Wrongs) Act 2002 (ACT) s 123; Defamation Act 2005 (NSW) s 11; Defamation Act 2006 (NT) s 10; Defamation Act 2005 (Qld) s 11; Defamation Act 2005 (SA) s 11; Defamation Act 2005 (Tas) s 11; Defamation Act 2005 (Vic) s 11; Defamation Act 2005 (WA) s 11. 22.22 As for international publications of defamatory material, the correct forum would be the jurisdiction where the plaintiff has a reputation. In Zwambila v Wafawarova [2015] ACTSC 171, the publication took place in Zimbabwe but the plaintiff, the Zimbabwean Ambassador to Australia and New Zealand, was living in the Australian Capital Territory at the time. The court considered that s 123 of the Civil Law (Wrongs) Act (ACT) was not relevant as it applies to publication within Australia. It was held that as the plaintiff’s residence and reputation provided a close connection with the Australian jurisdiction and Zimbabwean law had not been pleaded (see Regie Nationale das Usines Renault SA v Zhang (2002) 210 CLR 491), the correct law to be applied was that of the Australian Capital Territory. 22.23 Prior to the defamation legislation, the High Court had considered the issue of the correct jurisdiction in an action in defamation based upon matter that originated from outside Australia. In Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433, the issue was whether a defamatory article in the United States financial press, which was on a website accessible by subscription, could be the subject of proceedings in the Victorian Supreme Court. The defendant argued that the proceedings in the

Victorian Supreme Court should have been stayed on the basis of the doctrine forum non conveniens (the court is a clearly inappropriate forum to determine the action: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538). It was argued that, as the defamatory article was uploaded onto the website in New Jersey in the United States, the law of that jurisdiction should apply. The plaintiff contended that publication of the article took place in Victoria when subscribers to the service downloaded the article in that state. The evidence was that there were several hundred subscribers to the service in Victoria. The High Court held that the law of Victoria was to apply to the plaintiff’s claim. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ held (at [44]): It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant’s conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web

[page 550] browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.

As for the problems of defamation on the internet and the need for them to be addressed, Kirby J stated (at [165]–[166]): The notion that those who publish defamatory material on the Internet are answerable before the courts of any nation where the damage to reputation has occurred, such as in the jurisdiction where the complaining party resides, presents difficulties: technological, legal and practical. It is true that the law of Australia provides protections against some of those difficulties which, in appropriate cases, will obviate or diminish the inconvenience of distant liability. Moreover, the spectre of “global” liability should not be exaggerated. Apart from anything else, the costs and practicalities of bringing proceedings against a foreign publisher will usually be a sufficient impediment to discourage even the most intrepid of litigants. Further, in many cases of this kind, where the publisher is said to have no presence or assets in the jurisdiction, it may choose simply to ignore the proceedings. It may save its contest to the courts of its own jurisdiction until an attempt is later made to enforce there the judgment obtained in

the foreign trial. It may do this especially if that judgment was secured by the application of laws, the enforcement of which would be regarded as unconstitutional or otherwise offensive to a different legal culture. However, such results are still less than wholly satisfactory. They appear to warrant national legislative attention and to require international discussion in a forum as global as the Internet itself. In default of local legislation and international agreement, there are limits on the extent to which national courts can provide radical solutions that would oblige a major overhaul of longstanding legal doctrine in the field of defamation law. Where large changes to settled law are involved, in an area as sensitive as the law of defamation, it should cause no surprise when the courts decline the invitation to solve problems that others, in a much better position to devise solutions, have neglected to repair.

22.24 In Bangoura v The Washington Post [2005] OJ No 3849, the plaintiff was an employee for the United Nations and the Washington Post published a series of articles claiming that the plaintiff had been subject to investigation after allegations of sexual harassment, financial impropriety and nepotism. At the time of publication, the plaintiff was stationed in Kenya but then emigrated to Ontario, Canada, where he was a resident for two years before he commenced proceedings. The articles had been posted on the Washington Post’s website, where they appeared continuously; however, the Post only had seven subscribers in the Ontario area. At first instance, the Ontario Supreme Court followed the High Court decision of Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433, holding that there was a sufficient connection with Ontario to confer jurisdiction upon the court, notwithstanding that the plaintiff did not establish a reputation in the province until some years after the material was published. This decision was overturned on appeal, finding that the connection between the plaintiff and Ontario was minimal at best. In addition, there was no evidence that the plaintiff’s reputation in Ontario had suffered any damage and there was no significant connection between the Post and the jurisdiction of Ontario. Dow Jones & Co Inc v Gutnick was distinguished on the basis that, in that case, the plaintiff had resided in Victoria at the time of publication and had a reputation within it, there was a considerable

[page 551] readership of the defendant in Victoria and that the plaintiff had only brought proceedings in that state. Clearly, residence alone will not be a sufficient basis for jurisdiction, especially if the residence commences some time after the publication takes place.

5 22.25

Elements of Defamation

To prove an action in defamation, the plaintiff must establish:

defamatory matter; reference to the plaintiff; and publication.

Defamatory Matter 22.26 With the Defamation Acts repealing all previous defamation legislation, all jurisdictions in Australia now apply the common law meaning of ‘defamatory matter’: Civil Law (Wrongs) Act 2002 (ACT) s 118(1); Defamation Act 2005 (NSW) s 6(2); Defamation Act 2006 (NT) s 5(2); Defamation Act 2005 (Qld) s 6(2); Defamation Act 2005 (SA) s 6(2); Defamation Act 2005 (Tas) s 6(2); Defamation Act 2005 (Vic) s 6(2); Defamation Act 2005 (WA) s 6(2). 22.27 There is no single test to be applied to be determined what may be defamatory: Berkoff v Burchill [1996] 4 All ER 1008 at 1011. In general terms, a plaintiff is said to be defamed if the publication complained of causes the reasonable person to think less of them: Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500. In Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 at [22], Beaumont J stated:

The test for what may be defamatory at common law is well established. A publication, without justification or lawful excuse, exposing a person to hatred, contempt or ridicule, calculated to injure that person’s reputation, is a libel. But this is not to be taken as an exhaustive statement. … the substantive legal issue here may be expressed as whether the material complained of was defamatory of the plaintiffs in that it was to his or her “discredit … [tended] to lower him [or her] in the estimation of others … to expose him [or her] to hatred, contempt or ridicule, or to injure his [or her] reputation in his [or her] trade or profession”: see Chakravarti v Advertiser Newspapers (1998) 154 ALR 294; 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting Gatley on Libel and Slander (8th ed, 1981), para 31.

22.28 The tests applied (see 22.38) to determine if something is defamatory require an objective standard to be applied, that is, how a reasonable person would understand the matter. In defamation law, this reasonable person is referred to as the ‘hypothetical referee’.

The hypothetical referee 22.29 It is a question of law for the judge to determine whether a matter is capable of bearing a defamatory meaning (Adam v Ward [1917] AC 309) and this is done by judging the defamatory matter with reference to the hypothetical referee. 22.30 In Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417, Lamb sued Reader’s Digest as publishers of a book entitled ‘Great Cases of Scotland Yard’, on the [page 552] basis that a passage in the book, in its natural and ordinary meaning, imputed that he had exploited his position to get a sensational story. The appeal was against evidence given relating to journalistic ethics. The court considered the question of in whose minds the statement must be considered defamatory. Brennan J stated (at CLR 506; ALR 421): … whether the alleged libel is established depends upon the understanding of the hypothetical

referees who are taken to have a uniform view of the meaning of the language used and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation being a standard common to society generally.

22.31 The hypothetical referee has been defined in many varied ways. In Farquhar v Bottom [1980] 2 NSWLR 380 at 386, it was stated that there is an assumption that ‘the ordinary reasonable reader is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal’. In Lewis v Daily Telegraph Ltd [1964] AC 234 at 286, the phrase ‘fair minded’ was used. In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716, Kirby J discussed the meaning of ‘ordinary reasonable reader’ and was critical, stating that ‘[i]t would be preferable to drop this fiction altogether’: at [24]. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254 ALR 606, the High Court discussed the general test for defamation. The judgment made the following points: there is no moral judgment of the plaintiff on the part of the hypothetical referee: at [37]; the expression ‘right thinking’ should be taken ‘to describe a person who shares the standards of the general community’ which implies a standard of decency: at [38] and [40]; and there are many standards within the general community — social, ethical and moral: at [43]. Despite the lack of any definitive test, the test at least can be said to be an objective one — what would an ordinary person have thought the words meant? 22.32 It is irrelevant whether or not the defendant intended to defame the plaintiff: Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 354. It is only relevant to consider whether the ordinary right-minded member of society would have thought the words were defamatory.

22.33 Sectional attitudes of society To be capable of having defamatory meaning, it must be by reference to the general community standards and not sectional attitudes: Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417. Therefore, if an imputation would damage the reputation of the plaintiff among only a small or disreputable minority, it is not defamatory unless the views of that minority reflect that of the general community: Byrne v Deane [1937] 2 All ER 204. 22.34 The fact that the defamatory imputation may have had an especially adverse impact upon the plaintiff’s reputation in the eyes of some group or class in the community [page 553] would be relevant only as regards the question of assessing damages. In Byrne v Deane [1937] 2 All ER 204, the plaintiff, Byrne, was a member of a golf club. The defendants were the owners and secretary of the club. Someone reported to the police that poker machines were kept on the club premises and the police seized the machines. A poem was placed on the wall of the club which clearly implied that it was the plaintiff, Byrne, who had reported the machines to the police. The court held by a majority of 2:1 that there was no defamatory meaning. Slesser LJ stated (at 209): To allege of a man … that he has reported certain acts, wrongful in law, to the police, cannot possibly be said to be defamatory of him in the minds of the general public. We have to consider in this connection the arbitrium boni, the view which would be taken by the ordinary good and worthy subject of the King … and I have assigned to myself no other criterion than what a good and worthy subject of the King would think of some person of whom it had been said that he had put the law into motion against wrongdoers, in considering that such a good and worthy subject would not consider such an allegation in itself to be defamatory.

It was not relevant that the statement might bring the plaintiff into disrepute within the club. It was considered that good and worthy subjects of

the king would not consider that the matter was defamatory. The very statements that were likely to bring him into disrepute with the criminal class would raise his status in the estimation of society in general. 22.35 In contrast to the decision in Byrne v Deane [1937] 2 All ER 204, statements by Hunt J in the New South Wales Supreme Court decision in Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 544 suggested that matter is capable of being defamatory even if it will only be regarded as such by persons possessed of a particular attitude: There are cases where a plaintiff relies upon the existence of a particular attitude towards certain behaviour which is held by one group within the community which is not an attitude held by the general community. An example is the disapproval of certain practices which is expressed by particular religious or ethnic groups but which is not the subject of such disapproval by the general community apart from those groups. In such cases, it is necessary for the plaintiff to plead that sectional attitude as an extrinsic fact or circumstance, and his case will then (within certain limits not here relevant) proceed upon the basis that publication in a defamatory sense is alleged only in relation to the publication to members of that particular group.

In such cases, the test will still be an objective one, although it would take into account that sectional attitude as an extrinsic fact or circumstance. 22.36 Current community standards Statements must be viewed in light of prevailing community standards as well as in view of the context in which they are made and circumstances of time and place. In Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at [26], Mason P, noting that ‘it is well established that the words complained of must be construed as a whole and in context’, adopted the observation of Holmes J in Towne v Eisner (1918) 245 US 418 at 425: A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used: at [21].

[page 554]

For example, in 1934 in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, the implication that the plaintiff had been raped was held to be defamatory. It would be hoped that the attitude of society towards women who have been raped in the present day would be different to that in the 1930s: Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 545. In John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77, the High Court discussed changing attitudes of society to various imputations. Kirby J stated (at [140]): In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person’s reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory.

See Tassone v Kirkham [2014] SADC 134 at [35] (imputation of homosexuality held not to be defamatory).

Tests for what may be defamatory 22.37 In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254 ALR 606 at [36], it was confirmed that to be defamatory matter it must injure the plaintiff’s reputation, which was said to be ‘all aspects of a person’s standing in the community’, citing Berkoff v Burchill [1996] 4 All ER 1008 at 1018. 22.38

The case law establishes that matter may be defamatory if it has:

exposed the plaintiff to hatred, ridicule or contempt (Parmiter v Coupland (1840) 6 M & W 105); lowered the plaintiff in the estimation of others (Sim v Stretch [1936] 2

All ER 1237); injured the plaintiff in their trade or profession (Chakravarti v Advertiser Newspapers (1998) 154 ALR 294; 193 CLR 519); or caused the plaintiff to be shunned or avoided: Youssoupoff v MetroGoldwyn-Mayer Pictures Ltd (1934) 50 TLR 581. 22.39 Expose the plaintiff to hatred, contempt or ridicule In Parmiter v Coupland (1840) 6 M & W 105 at 108, Parke B stated that matter will be defamatory if it is likely to injure the reputation of the plaintiff by exposing them to ‘hatred, contempt or ridicule’. For example, in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, the defendant’s magazine published a photo of the plaintiff, a well-known rugby league player, in the shower. The grainy photo was capable of being interpreted as showing the plaintiff’s genitals. Hunt J of the New South Wales Supreme Court held that the publication [page 555] of the photo was capable of subjecting the blameless plaintiff to more than a trivial degree of ridicule and, therefore, was capable of defaming the plaintiff on this ground alone. See also Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022; Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; 167 ALR 224. In Berkoff v Burchill [1996] 4 All ER 1008, describing the plaintiff, who was a well-known actor, as ‘hideously ugly’ was held by a majority of the English Court of Appeal to be defamatory. Neill LJ stated (at 1018): It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule.

In Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306, the defendant

argued that the article containing a photograph with the plaintiff’s face superimposed onto the body of a woman’s body wearing a bikini was clearly intended to be a joke. The court held that even if the article could be construed as a joke, it was still possible that as it held the plaintiff up to ridicule, it could be defamatory even though it does not attribute any moral blame to the plaintiff. 22.40 Legislation also exists that makes it unlawful to publish matter that incites hatred, contempt or ridicule on grounds of race or sexual orientation: see, for example, Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld); Equal Opportunity Act 1984 (WA). 22.41 Lower the plaintiff in the estimation of others The test of hatred, contempt or ridicule was thought to be ‘too narrow’ by Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1240. His Lordship suggested (at 1240) that the test was ‘would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?’ In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254 ALR 606 at [37], it was pointed out that this does not require the exercise of moral judgment; it ‘simply conveys a loss of standing is some respect’. Therefore, if the statement has the tendency to lower the plaintiff in the estimation of others, often referred to as ‘disparagement’, it will be capable of being defamatory matter. 22.42 A statement must disparage, that is, impute blame to the plaintiff. In John Fairfax & Sons Ltd v Punch (1980) 31 ALR 624, it was held that it was defamatory to imply that the leader of a political party had lost the confidence of a significant number of its members. The statement was disparaging of the reputation of the plaintiff as a leader because it questioned their ability to lead the party to electoral success and imputed incompetence. 22.43 A matter that only injures the plaintiff’s pride or feelings but does not lower their reputation will not be defamatory. For example, in Boyd v Mirror Newspapers Ltd [1980] 2 NWSLR 449, a newspaper article that

described the plaintiff footballer as ‘fat’ and ‘slow’ was held not to disparage him because no blameworthiness was implied. 22.44 If the defamatory imputation concerns the illegal activities of the plaintiff, there is no defamation unless the imputations damage the reputation of the plaintiff separate from his or her illegal activities. The rationale for this is that a court will not assist a plaintiff [page 556] seeking compensation for an illegal activity. In Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339 at 344, the court held: If a person carried on a trade, business or calling illegally, then the law will not aid him in a defamation action to recover compensation in respect of damage to any reputation acquired in so carrying on such trade, business or calling. It is not a question of the defendant justifying the defamatory statement, but of the court declining to lend its aid to the recovery of compensation for damage to a reputation acquired in an illegal pursuit. It is not sufficient, in order to defeat a claim for damages, merely to show that the defamatory statements which were published concerned or referred to an illegal pursuit, for such statements are actionable if they reflect upon and damage a plaintiff’s reputation in respects other than in relation to the illegal pursuit.

22.45 Injure plaintiff in trade or profession It is possible that the defamatory matter is relevant to the plaintiff’s professional reputation rather than their personal reputation. The defamatory matter may attack the trade or professionalism of the plaintiff, and if the matter is about the business, the plaintiff may still have an action if it involves ‘some reflection upon [the plaintiff’s] personal character or upon the mode in which [the plaintiff] carries on [their] business’: Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 13. See, for example, John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; 235 ALR 402, where it was held that a review of a restaurant was defamatory of the owners. Callinan and Heydon JJ explained (at [190]): Business capacity and reputation are different from personal reputation. Harm to the former

can be, as here, inflicted more directly and narrowly than harm to a person’s reputation. A person who does not have an admirable character may be a very good restaurateur. It might be possible to say things about him or her personally that are not defamatory, but not about that person as a restaurateur in relation to the conduct of the restaurant. Restaurant standards rather than community ones are the relevant standards in that situation. No community standard or value could obliterate or alter the defamatory meaning of the imputations in this case. It is unimaginable, in any event, that the estimation of the respondents in the mind of any adult person, let alone a reasonable reader, would not be lowered by a statement that they sold unpalatable food and provided bad service at their restaurant, and did so for considerable sums of money.

See also Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254 ALR 606 at [10], where the High Court stated: It is not in dispute that persons may be defamed in their business reputation. The common law has for some time recognised that words may not only reflect adversely upon a person’s private character, but may injure a person in his or her office, profession, business or trade. This may be so where the words reflect upon the person’s fitness or ability to undertake what is necessary to that business, profession or trade. But in each case the injury spoken of is that to the person’s reputation.

If the defamatory material is an injury to the plaintiff’s business, not their reputation, the correct action is injurious falsehood: see 24.87. 22.46 Cause plaintiff to be shunned or avoided Statements which cause people to shun or avoid the plaintiff are capable of being defamatory: Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 23–4; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587. This does not require any imputation of moral [page 557] blame: Random House Australia Pty Ltd v Abbott (1999) 94 FCR 296; 167 ALR 224 at [22]. In Berkoff v Burchill [1996] 4 All ER 1008 at 1020–1, Phillips LJ, discussing whether describing someone as ugly would cause people to shun or a void them, held: In my judgment, such a statement [that a person is ugly] differs in principle from those

statements about a person’s physical condition which have been held to be defamatory. Those statements have, in every case, been allegations of fact — illness, madness, filthiness or defilement. Hearsay factual statements about a person’s physical condition can clearly be capable of causing those who hear or read them to avoid the subject of them. In contrast, a statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of that individual’s features. To a degree both beauty and ugliness are in the eye of the beholder. It is, perhaps, just possible to think of a right minded person shunning one of his fellow men because of a subjective distaste for his features. What I find impossible to accept is that a right minded person would shun another merely because a third party had expressed distaste for that other person’s features.

See, for example, in Morgan v Lingen (1863) 8 LT 800, describing someone as insane was defamatory and in Henry v TVW Enterprises Ltd (1990) 3 WAR 474, an imputation of hepatitis B (an infectious disease) was defamatory. In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd, Princess Irina Alexandrovna, the wife of Russian Prince Youssoupoff, claimed damages for libel in a sound film about Rasputin which suggested that the fictional character of Princess Natasha had been seduced by Rasputin. The English Court of Appeal recognised that the plaintiff would be ostracised by society to a certain degree. Slesser LJ commented (at 587): One may, 1 think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectful consideration from the world.

Pleading the defamatory meaning 22.47 When suing in defamation, the plaintiff specifies the alleged defamatory matter and pleads the imputations and the defamatory meaning, that is, the interpretation of the publication. The meaning intended by the defendant is irrelevant, as the meaning is determined objectively: Sim v Daily Telegraph Ltd [1968] 2 QB 157 at 172. 22.48 It is possible to plead more than one imputation arising from the defamatory material as more than one meaning may be conveyed. Regardless of how many imputations are pleaded by the plaintiff, only one cause of action exists: Civil Law (Wrongs) Act 2002 (ACT) s 120; Defamation Act

2005 (NSW) s 8; Defamation Act 2006 (NT) s 7; Defamation Act 2005 (Qld) s 8; Defamation Act 2005 (SA) s 8; Defamation Act 2005 (Tas) s 8; Defamation Act 2005 (Vic) s 8; Defamation Act 2005 (WA) s 8. The imputations pleaded by the plaintiff form the limits of the action. In Lloyd v David Syme & Co Ltd [1986] AC 350 at 361–2; (1985) 63 ALR 83 at 87, Lord Keith of Kinkel of the Privy Council commented: The parties, the court and jury are alike tied to the imputations set out by the plaintiff in his pleadings; it is not for the court or jury to consider whether the matter bears or is capable of bearing some other defamatory imputation. The onus lies upon the plaintiff in a jury trial to satisfy the jury that the matter published would convey to the recipients of it, or some of them,

[page 558] one or more of the defamatory imputations pleaded; if he fails to do so he loses that action although he may have a separate cause of action in respect of some other defamatory meaning which he has not pleaded.

22.49 However, in Chakravarti v Advertiser Newspapers (1998) 154 ALR 294; 193 CLR 519, the High Court thought that this inflexible rule was not appropriate. Brennan CJ and McHugh J stated (at [24]): If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure — whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict — the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury — as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation — the different defamatory meaning may be found by the jury.

22.50 The defamatory meaning may arise in different ways, through natural and ordinary meaning or true innuendo, but whichever is relied upon, the matter must be looked at in context: Berkoff v Burchill [1996] 4 All ER 1008. See, for example, Obermann v ACP Publishing Pty Ltd [2001] NSWSC 1022 (photo of plaintiff in pornographic magazine). Hunt CJ stated

in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165: The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less the degree of accuracy which would be expected by the reader. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual. [footnotes omitted]

See also Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652. In that case a series of articles was published, reporting that the Federal Treasurer was attending select events to make himself available to persons who made donations to a particular political fundraising body. This was essentially accurate; however, there were also placards advertising the articles and tweets linking the articles that contained the words ‘Treasurer for Sale’. The court treated the placards as a discrete publication, following World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 at 725, where it was held that posters may be published to persons who do not read the newspaper itself. In respect of the tweets, White J held that although they may have provided the reader with easier access to the article through the hyperlink, it was ‘not a reason for concluding that all readers of the tweet will exercise that access. Some may read the tweet without going further’: at [207]. 22.51 A defendant may be able to establish to the satisfaction of a jury that, in the particular context, an imputation amounts to a jest or mere general abuse and is not defamatory in [page 559] the circumstances: Penfold v Westcote (1806) 2 Bos & Pal (NR) 335; 127 ER

656; Mundey v Askin [1982] 2 NSWLR 369. 22.52 Natural and ordinary meaning The matter may be capable of having a defamatory meaning on its face, that is, its natural and ordinary meaning, for example a statement describing someone as a thief. The natural and ordinary meaning is the basis for construction of words in a defamation action: Lewis v Daily Telegraph Ltd [1964] AC 234; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417. In Harrison v Thornborough (1713) 10 Mod 196 at 198; 88 ER 691 at 691–2, it was stated: The rule therefore that has now prevailed is, that words are to be taken in that sense that is most natural and obvious, and in which those to whom they are spoken will be sure to understand them.

In Jones v Skelton [1963] 3 All ER 952 at 958; [1963] 1 WLR 1362 at 1370– 1, it was stated: The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words [see Lewis v Daily Telegraph Ltd [1964] AC 234]. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided not by any special but only by general knowledge, and not fettered by any strict legal rules of construction, would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.

22.53 When the natural and ordinary meaning is being relied upon, no evidence may be admitted to establish the meaning: Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417. 22.54 Implied meaning If a plaintiff pleads the natural and ordinary meaning as being defamatory, this will include any implication or inferences, referred to as ‘false innuendo’. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165, Hunt CJ summarised as follows: The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it. In

deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable, and any strained or forced or utterly unreasonable interpretation must be rejected. The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs. [footnotes omitted]

In Quigley v Wallace [2015] WASC 479, the court dealt with an application to strike out parts of the plaintiff’s statement of claim for failure to disclose a reasonably arguable cause of action. One of the pleaded imputations of a post on a website was that the plaintiff was a coward, having coward punched the defendant. The defendant argued that it could not be [page 560] understood that the plaintiff was being described as a coward by using an act of violence. The judge disagreed, reasoning at [41]: Whilst it is correct that the words complained of in the Post do attribute aggressive, even violent, behaviour … the term “coward punch” or “coward punching” is now a commonly encountered modern day expression in contemporary Australia. Strong anti-violence public campaigns rightly characterising “one punch” assaults as despicable conduct — on a basis that they are the actions of a coward, are commonly aired across mainstream or even social media.

22.55 In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716, the respondent reported in its newspaper that the appellants’ house had burnt down while they were away overseas. Reference was made in the report to the controversial development application of the appellants in respect of the property. The appellants alleged that the report defamed them as it implied that they had committed arson and were suspected by the police of having committed arson. Gleeson CJ, McHugh, Gummow and Heydon JJ stated (at [12]): A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a

likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance. At this preliminary stage of the proceedings, the respondents have not yet had an opportunity to indicate why it was considered relevant to the story about the fire to link it with the development application.

Their Honours referred to the judgment of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 269, where it was noted that ‘ordinary readers draw implications much more freely, especially when they are derogatory’: at [11]. 22.56 Any strained, or forced, or utterly unreasonable interpretation of words must be rejected: Jones v Skelton [1963] 3 All ER 952; [1963] 1 WLR 1362; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716 at [9]. 22.57 True innuendo It is also possible that the material is only capable of having a defamatory meaning if the person to whom the matter is published has knowledge of certain extrinsic facts. This is referred to as ‘true innuendo’: Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331; Hough v London Express Newspaper Ltd [1940] 2 KB 507; Lewis v Daily Telegraph Ltd [1964] AC 234; Tolley v J S Fry & Sons Ltd [1931] AC 333. 22.58 The special facts and knowledge must be pleaded to support a true innuendo: Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 406; 254 ALR 606 at [60] (if imputation requires knowledge of facts within the plaintiff’s business or trade, those facts will need to be pleaded). Strictly, innuendo is confined to inferences which may be drawn only with the aid of extrinsic evidence: Grubb v Bristol United Press Ltd [1963] 1 QB 309. In Radio 2UE Sydney Pty Ltd v Chesterton at [51], it was stated: ‘The essential requirement of the plea is that

[page 561] the matter is not one within the general knowledge of the hypothetical referees’.2 Where a plaintiff relies on some special meaning to be given to words included in published matter, that special meaning is the extrinsic fact: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291. 22.59 In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, the scene complained of in the film portrayed Rasputin seducing or raping a princess of the Russian royal house. Later in the film, the princess marries a nobleman involved in the killing of Rasputin. Princess Irina Alexandrovna, of the Russian royal house, established that persons knowing some, if not all, of the circumstances of the incidents portrayed would take the character of the princess as representing herself and that to portray that she was seduced or raped by this person of very bad character whom her fiancé later kills, was defamatory. In Byrne v Deane [1937] 2 All ER 204, the proprietors and directors of a golf club were sued by a member who alleged he had been defamed by a verse anonymously published on a notice board in respect of informing the police of illegal use of gaming machines on the premises. The lampoon went as follows: For many years upon this spot You heard the sound of a merry bell Those who were rash and those who were not Lost and made a spot of cash But he who gave the game away May he byrnn in hell and rue the day.

The plaintiff, in the statement of claim, stated: By the said words the defendants meant and were understood to mean that the plaintiff had reported to the police the presence of the said machines upon the said premises, that he was guilty of underhand disloyalty to the defendants and his fellow members of the said club and that by reason of the said facts his conduct was deserving of the gravest censure, that he was a

person devoid of all true sporting spirit and further that he was a person unfit for other members of the club to associate with and should be ostracised by them.

Without knowledge of extrinsic facts, such as the gaming machines having bells and that a complaint had been made to police, the ordinary meaning of the words could not convey defamatory meaning. As Slesser LJ commented (at 208–9): … the words as set out in the statement of claim cannot on any view be taken to be defamatory apart from the innuendo. I do not think that, taken by themselves, they form any ground of complaint, and, as I understand the case, it was treated upon the basis that the innuendo contained the alleged defamatory meaning of these words, and not the words in their natural and ordinary meaning.

22.60 Even something as apparently innocuous as the use of the symbol ‘R/D’ (refer to drawer) on a cheque may be defamatory when returned to a payee because it amounts [page 562] to the serious matter of dishonour of a cheque which reasonable people might think, in all probability, a bank had dishonoured on a ground discreditable to the drawer: Miles v Commercial Banking Co of Sydney (1904) 1 CLR 470; Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79; 268 ALR 409. In State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399, it was held that the phrase ‘in liq’ on a bank balance could be defamatory of the account holder.

Defamatory on the Facts 22.61 Once it is determined as a question of law that a matter is capable of being defamatory, it is then a question of fact whether the matter is defamatory in the circumstances: Thompson v ‘Truth’ and ‘Sportsman’ Ltd (No 4) (1932) 34 SR (NSW) 21; Jones v Skelton [1963] 3 All ER 952 at 958;

[1963] 1 WLR 1362 at 1370; Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669. 22.62 Questions of fact are determined by a jury, or if there is no jury, by the court. In New South Wales, Queensland, Tasmania, Victoria and Western Australia, either the plaintiff or the defendant may elect for the defamation proceedings to be tried by a jury: see Defamation Act 2005 (NSW) ss 21(1), 22(2); Defamation Act 2005 (Qld) ss 21(1), 22(2); Defamation Act 2005 (Tas) ss 21(1), 22(2); Defamation Act 2005 (Vic) ss 21(1), 22(2); Defamation Act 2005 (WA) ss 21(1), 22(2). Jury trials are abolished in the Australian Capital Territory and South Australia in respect of all civil trials (Supreme Court Act 1933 (ACT) s 22; Juries Act 1927 (SA) s 5) and in the Northern Territory in respect of civil defamation trials: Juries Act 1963 (NT) s 6A. 22.63 Appellate courts are reluctant to interfere with a jury’s decision that material is defamatory: Australian Newspaper Co Ltd v Bennett [1894] AC 284; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708. In John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [185], Callinan J stated that ‘a finding of a jury may only be overturned if it is one that no reasonable jury could reach’. However, in John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; 235 ALR 402, the High Court agreed with the Court of Appeal’s decision to overturn the finding of the jury that a review of the respondent’s restaurant that contained the defamatory imputations that it sold unpalatable food and provided bad service were not in fact defamatory of the owners. Gleeson CJ and Crennan J held (at [13]): There was every reason to suppose that the jury, having found that the imputations were conveyed, decided they were not defamatory because of a misunderstanding of what was meant by defamatory.

Reference to the Plaintiff 22.64

The plaintiff must show that the defamatory matter is about them:

Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 23. This is a question of fact and the relevant test is whether a reasonable person, having knowledge of the relevant circumstances, would understand the material as referring to the plaintiff: E Hulton & Co v Jones [1910] AC 20. [page 563]

Identified expressly 22.65 If the plaintiff is named in the defamatory material, there has been sufficient identification for a defamation action. If the plaintiff is named, it is not necessary for the plaintiff to prove that the matter was published to people who knew them (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; 23 ALR 167), but it must be established that the matter may be understood to be referring to the plaintiff: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86. 22.66 It is not necessary that the material expressly name the plaintiff for it to be referable to the plaintiff. Identification may be by a photograph or picture, or may refer to them by their title, for example Prime Minister: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 91. In Henry v TVW Enterprises Ltd (1990) 3 WAR 474, film footage of the plaintiff’s hands performing a dental procedure for which he was well known and the pink of the dental nurse’s uniform was held to be sufficient to identify the plaintiff. 22.67 It is not necessary that the defendant knew of the plaintiff as intention of the defendant is irrelevant. An innocent publication of what the defendant believes to be a fictitious name may identify the plaintiff for a defamation action if the name is the same as theirs: E Hulton & Co v Jones [1910] AC 20.

22.68 Similarly, the fact the publisher intended to refer to a different person will not prevent persons having the same name showing that the publication was reasonably referable to them: Lee v Wilson (1934) 51 CLR 276. In that case, a newspaper alleged that a Detective Lee of the Victorian police force was guilty of misconduct. In fact, there were two Detective Lees and a Constable Lee, who was the subject of the article. The High Court held that if the defamatory material is capable of referring to more than one person, then all who may reasonably be understood to have been referred to may bring an action, even if it was the intention of the defendant to refer to someone else. In Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376, a newspaper article referred to ‘Judge Clive Hall’. Despite the fact that the plaintiff was Judge Robert Hall and that the article was intended to refer to Judge Clive Wall, the plaintiff was successful in proving that reasonable readers of the article would believe that the article was referring to him. See also Zoef v Nationwide News Pty Ltd [2015] NSWDC 232, where the plaintiff’s son, who had the same name as him, was arrested for possessing guns and the news reports referred to the plaintiff’s business as a tailor. The court held that as the plaintiff was named and the article contained sufficient personal details, the plaintiff was identified. 22.69 It is the usual practice in books and other productions, such as movies and television programs, to include a disclaimer that all characters and events in the publication are fictional and have no reference to any person alive or dead. The effect of such a disclaimer may be taken into account when determining whether the publication is reasonably referable to the plaintiff. If, despite the disclaimer, a reasonable person would still believe that the defamatory material is referring to the plaintiff, as the intention of the defendant is irrelevant, the disclaimer will not prevent the defendant from being held liable. For example, in Australian Broadcasting Corporation v Hanson [1998] QCA 306 at 8,

[page 564] it was noted, ‘[i]t is facile to suggest that the appellant could avoid liability by prefacing the song [the defamatory matter] with its disclaimer’.

Identified indirectly 22.70 It is not necessary that the plaintiff be expressly identified as otherwise liability could be avoided simply by not naming the plaintiff: Hayward v Thompson [1982] 1 QB 47 at 60. If the plaintiff is not named or described, but people with knowledge of the plaintiff would be able to understand that the defamatory matter was referring to the plaintiff, the plaintiff must establish that the matter had been published to those persons: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89. 22.71 The plaintiff may not be named or pictured but still be able to prove that the publication was connected to them. In Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, a newspaper published a photograph of the plaintiff’s husband with another woman with a statement that the couple were engaged to be married. The English Court of Appeal held that although the plaintiff was not expressly referred to in the paper, and was unknown to the defendant, the publication was referable to the plaintiff. To those who knew the plaintiff and knew her to live with the man in the photograph, the defamatory imputation was that she was not married to him and was, instead, his mistress. 22.72 It is possible to look to other publications to establish the identity of the plaintiff. In Fairfax Media Publications Pty Ltd v Pedavoli (2015) 326 ALR 737 at [144]–[146], the court examined the principles in Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 98, and noted: Where a plaintiff is not identified in the matter complained of as being

defamatory, regard may be had to the naming of the plaintiff in a subsequent publication by the same defendant. Where the plaintiff is not identified, but the publication includes an invitation that may be interpreted by the ordinary reasonable reader as inviting the reader to ascertain the identity of the person to whom the defendant intended to refer from the subsequent publication by another party, the subsequent publication may be relied upon. See also Hayward v Thompson [1982] 1 QB 47 at 60; Strasberg v Westfield Ltd [2002] NSWSC 689 (internal letter referring to a television program to be aired that would identify the plaintiff had a sufficient nexus to enable it to be within the Baltinos principle). 22.73 Where a statement defames the owner of a named business, without naming him or her, and the imputation is likely to injure the business, it is enough to prove that the person was the owner without proving that persons who read the report knew the plaintiff was the owner: Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; 23 ALR 167; Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports ¶81-675. [page 565]

Groups 22.74 If a defamatory imputation is related to a group of individuals, the group as a whole is, generally, not able to sue for defamation. However, individual members of a class may have a cause of action if it can be established that the matter is reasonably referable to them: Godhard v James Inglis & Co Ltd (1904) 2 CLR 78. In Knupffer v London Express Newspaper Ltd [1944] AC 116 at 122, Lord Atkin stated: The reason why a libel published of a large or indeterminate number of persons described by

some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalizations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be a facetious exaggeration.

Lord Porter commented (at 124): … the size of the class, the generality of the charge and the extravagance of the accusation may all be elements to be taken into consideration, but none of them is conclusive.

An example of the application of the test whether a sensible person, having knowledge of the relevant circumstances and reading casually, would reasonably identify the plaintiffs as the persons defamed is Bjelke-Petersen v Warburton [1987] 2 Qd R 465. In that case, the then premier of Queensland and all the members of his cabinet sued the deputy leader of the opposition in respect of general comments of ‘this government’s corruption’ and allegations ‘ministers have their hands in the till’. As Kneipp J stated (at 467): He refers to “these blokes”, the use of “these” suggesting an antecedent, which must be the Government. He then goes on to refer to “Ministers”. Plainly the view can reasonably be taken that “Government” and “blokes” and “Ministers” all mean the same thing, and that the allegation of corruption is thus reasonably referable to a class consisting of the Ministers. I think that this class is sufficiently narrow for each member of the class to complain that the words complained of may reasonably be taken to refer to him or her.

In Mann v Medicine Group Pty Ltd (1991) 105 FLR 419 (affirmed in (1992) 30 FCR 400), the court held that the allegation of defamation of bulk-billing doctors in Australia failed as it could not be proven that a reasonable person would associate the statements with a particular member of the class. In contrast, in Lloyd v David Syme & Co Ltd [1986] AC 350; (1985) 60 ALJR 10, the Privy Council held that, although the plaintiff was not specifically referred to, the article was capable of being understood as referring specifically to the captain of the cricket team. See also Rowan v Cornwall (No 5) (2002) 82 SASR 152 at [480], where it was noted: … the size of the class is usually a relevant, if not conclusive, factor: David Syme & Co v Canavan [(1918) 25 CLR 234]; and Knupffer v London Express Newspaper Ltd [[1944] AC 116]. In addition, much will depend on the precise nature of the statement: Mann v The Medicine Group Pty Ltd (1992) 38 FCR 400 per Wilcox J at 403. Thus, its generality or its particularity, as the case may be, will be relevant. As a matter of practical reality, a plaintiff is more likely to

succeed if a member of a small group and more likely to fail if a member of a large group. In other words, a plaintiff may succeed in proving that she is the person identified if the group referred to in the defamatory statement is so small that it can reasonably be understood to refer to any one of its members.

[page 566] See also Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 at [32], where failing to identify the managers of a casino who had been dismissed was ‘clearly capable of casting a cloud of suspicion over each of them’. In Ballina Shire Council v Ringland (1994) 33 NSWLR 680, it was held that an elected local council is unable to sue in defamation. This was based on the reasoning that a democratically elected body should not be able to preclude criticism of itself by relying on the law of defamation: at 690–1 per Gleeson CJ. An individual member of that council will be able to sue in defamation if able to establish that their own reputation has been damaged and that they can be sufficiently identified.

Publication 22.75 It is only upon publication of the defamatory matter that the tort of defamation arises: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433. ‘Publication’ refers to the communication of the defamatory material to a third party. Therefore, articles in newspapers and magazines, broadcasts on television and radio, datacasts, scenes depicted in film or on the stage are all publications. Spoken words, letters, postcards, posters, signs and gestures are all forms of publication. There is no defamation unless the matter is published to a third party; otherwise there would be no injury to reputation. Publication to a single individual, other than the party defamed, is sufficient: Pullman v Walter Hill

& Co Ltd [1891] 1 QB 524; Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 at [124]. 22.76 As with any general rule, however, there are exceptions. Publication by one spouse to another does not ground an action because of the original common law principle of the single identity of married persons: Wennhak v Morgan (1888) 20 QBD 635. This does not apply to one spouse defaming the other spouse if it is in the presence of a third party: Family Law Act 1975 (Cth) s 119 (parties to a marriage may bring proceedings in tort against each other). Also, there is no publication if an unauthorised person intercepts defamatory matter addressed to the plaintiff: Huth v Huth [1915] 3 KB 32; Powell v Gelston [1916] 2 KB 615. If the plaintiff is a company, there will be no publication if the defamatory material is only received by someone on behalf of the company in the ordinary course of business. As a company can only act through natural persons, there would be no publication to a third party in those circumstances: State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399. 22.77 Generally, it is necessary that the person to whom the matter was published comprehended it and understood that it referred to the plaintiff for there to be publication: Kruse v Lindner (1978) 19 ALR 85. Therefore, there is no publication to persons if they have no knowledge of special facts necessary to comprehend the matter as defamatory: Cross v Denley (1952) 52 SR (NSW) 112. If the defamatory meaning arises from true innuendo, the plaintiff must prove that there was publication to persons with knowledge of the extrinsic facts. There is no publication until it has been communicated to at least one person who has knowledge of the extrinsic facts that makes the matter defamatory. [page 567]

22.78 In addition to the traditional understanding of what constitutes publication, material on the internet, in emails, on computer bulletin boards and on discussion group forums are all publications. In Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 at [44], the High Court held that there was publication upon the downloading of material from the internet as that is when the material becomes comprehensible. It is not enough to simply establish that the matter was posted on a website. However, a search engine may not be a republisher of defamatory matter until it has notice of the matter: see Bleyer v Google Inc (2014) 88 NSWLR 670; 311 ALR 529. The issue of whether a search engine is a publisher depends upon its participation in the publication: see Duffy v Google Inc [2015] SASC 170.

Republication 22.79 Publication will occur each time the defamatory material is repeated or communicated. For example, a broadcast on one television station that is then broadcast by another station is republication, as is reading out loud defamatory material or repeating another’s defamatory statement. Similarly, retweeting a defamatory statement will be republication as would sharing a post on Facebook. 22.80 As the action of defamation arises upon publication, a new cause of action arises from each republication: Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1002. See 22.88 for liability for republication. See Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75, where although the defamatory newspaper article had been printed 18 years previously, and therefore an action on defamation was statute barred, by selling a copy of that paper 18 years later there was republication.

Parties to the Action Living persons

22.81 Any living person may be defamed, but the action of defamation does not survive the death of the plaintiff. The survival of actions legislation (see Chapter 16) in all Australian jurisdictions, except Tasmania, expressly excludes an action in defamation surviving the death of a plaintiff or defendant: Civil Law (Wrongs) Act 2002 (ACT) s 15(2); Law Reform (Miscellaneous Provisions) Act 1944 (NSW) s 2(2); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 5(2); Succession Act 1981 (Qld) s 66(2); Survival of Causes of Action Act 1940 (SA) s 2(2); Administration and Probate Act 1958 (Vic) s 29(2); Law Reform (Miscellaneous Provisions) Act 1941 (WA) s 4(2). Despite this, the defamation legislation also provides: A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to — (a) the publication of defamatory matter about a deceased person (whether published before or after his or her death); or (b) the publication of defamatory matter by a person who has died since publishing the matter.

[page 568] See Civil Law (Wrongs) Act 2002 (ACT) s 122; Defamation Act 2005 (NSW) s 10; Defamation Act 2006 (NT) s 9; Defamation Act 2005 (Qld) s 10; Defamation Act 2005 (SA) s 10; Defamation Act 2005 (Vic) s 10; Defamation Act 2005 (WA) s 10. There is no equivalent in the Tasmanian legislation. 22.82 However, a living person may sue for defamation of a dead person if the published imputation against the dead person carries with it a defamatory imputation against the living person: Livingstone-Thomas v Associated Newspapers Ltd [1969] 1 NSWR 771; Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 541.

Corporations and partnerships 22.83

A corporation has a separate legal identity and may protect its

reputation by resort to the civil law of defamation, just as much as a private individual: R v Macnamara (1893) 14 LR (NSW) 515. Under the common law, trading corporations could maintain an action in defamation for statements which adversely affected their trading or business reputation. But the remedy was limited — damages could only be recovered for the actual or likely financial loss; no damages were awarded for non-economic loss for loss of reputation. In Lewis v Daily Telegraph Ltd [1964] AC 234 at 262, Lord Reid noted, ‘A company cannot be injured in its feelings, it can only be injured in its pocket’. 22.84 The defamation legislation restricts the right of corporations to pursue an action in defamation. The legislation only allows ‘excluded corporations’ to sue in defamation. The term ‘excluded corporations’ is defined as a corporation with objects that do not include financial gain for its members or employs less than 10 persons and is not related to another corporation: Civil Law (Wrongs) Act 2002 (ACT) s 121; Defamation Act 2005 (NSW) s 9; Defamation Act 2006 (NT) s 8; Defamation Act 2005 (Qld) s 9; Defamation Act 2005 (SA) s 9; Defamation Act 2005 (Tas) s 9; Defamation Act 2005 (Vic) s 9; Defamation Act 2005 (WA) s 9. 22.85 Subsection (4) of this provision refers to s 50 of the Corporations Act 2001 (Cth), in relation to whether a corporation is related to another. The subsection states that a subsidiary of a corporation (body corporate in the Corporations Act 2001) is related to that corporation. A subsidiary is defined in s 46 of the Corporations Act 2001 to include a corporation that holds more than one-half of the issued share capital of the other corporation. For example, in Heartcheck Australia Pty Ltd v Channel 7 Sydney Pty Ltd [2007] NSWSC 555, the plaintiff had 100 shares issued and another corporation held 65 of those shares, depriving the plaintiff of an action under the Defamation Act 2005 (NSW) as it was not an excluded corporation. 22.86

A partnership may bring an action in defamation if the defamatory

matter relates to the business of the partnership, not the reputation of the individual of the partnership: Smith v McGuiggan (1863) 2 SCR (NSW) 268; Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] QB 585. In Todd v Swan Television and Radio Broadcasters Pty Ltd (2001) 25 WAR 284, the defendant aired a lead news story reporting that there had been a murder and attempted suicide, showing a video of the plaintiffs’ business premises, including its sign, and the [page 569] plaintiffs’ house which was situated behind the business premises. In fact, the plaintiffs were not involved but the crime did take place at their home, and people understood that the news item was reporting that Mr Todd had killed his wife and then attempted suicide. The next year, the same footage was aired again in a story about domestic violence. The plaintiffs’ business suffered after the original news story. Damages were claimed for the injury to the business, in the form of loss of profits, as well as damages for the injury to the reputations of the plaintiffs and exemplary and aggravated damages. The issue before the judge was whether the partnership could sue in defamation. It was noted (at [76]) that: … a partnership has a personality which is capable of being defamed and in respect of which it can bring an action for libel: Coryton v Lithebye (1670) 2 Wm Saund (5th ed) 115; Cook v Batchellor (1802) 3 Bos & Pul 151; Forster v Lawson (1826) 3 Bing 452; Le Fanu v Malcomson (1848) 1 HLC 637; Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87; 157 ER 769 and Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1977] 1 QB 585 at 595. However the partners cannot sue jointly in respect of a defamation causing injury to an individual member of the firm.

Steytler J held (at [96]) that there was no defamation action in respect of the partnership: Here the imputations undoubtedly injured the partnership in the way of its trade, but they did not involve any reflection on the “character” of the partnership itself or “upon the mode in

which its business was carried on” (see Griffiths v Benn (1911) 27 TLR 346, at 350, per CozensHardy MR). I am unable to accept that, to say of a business that it is owned by a man who has murdered his wife and attempted suicide in the course of a domestic argument, is to say anything of the partnership which, in truth, owns that business. Rather, what was said was capable of reflecting only upon the character of Mr Todd himself, albeit he has, somewhat inaccurately, been identified as “the owner” of the business. That it was Mr Todd who was identified as the owner of the business is, as I have earlier said, not in doubt.

22.87 As with defamation of corporations under the common law, damages may be awarded for the injury to the business of the partnership, not any injury to the partners themselves: South Hetton Coal Co Ltd v NorthEastern News Association Ltd [1894] 1 QB 133.

Republishers 22.88 Any person who publishes the defamatory material may be liable, even if they were not the author of the material. A person who republishes defamatory matter becomes a new publisher of it and a fresh cause of action is grounded: Truth (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1002; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682. Liability for republication does not depend upon the defamatory material being adopted or reaffirmed; the mere repetition of the material will impose liability: John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485. 22.89 A person in control of property or the means of publication, who permits another to publish defamatory material, may become a publisher themselves. In Byrne v Deane [1937] 2 All ER 204, the proprietors and directors of the golf club were sued for permitting an anonymous member to publish a defamatory verse concerning the plaintiff implying [page 570] that he had reported the use of illegal gaming machines to the police. As Greer LJ stated (at 207):

In my judgment, the two proprietors of this establishment, by allowing the defamatory statement, if it be defamatory, to rest upon their wall, and by not removing it, with the knowledge that they must have had that, by not removing it, it would be read by people to whom it would convey such meaning as it had, were taking part in the publication of it.

See also Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports ¶81-127. 22.90 Republication requires some form of control over the defamatory material, which may be more difficult to prove when the alleged defamatory material is not in written form. In Bishop v New South Wales [2000] NSWSC 1042, the plaintiff alleged that he had been defamed in a skit performed by grade 12 students of the school at which he was a teacher. The issue before the court was whether the school could be held liable for the skit. Dunford J held (at [21]) that for the school to be involved in the defamation, the plaintiff had to establish that: … at some stage the headmaster became aware of the acts and gestures which conveyed the imputations alleged. Because of the transient nature of the performance, there is no room for the requirement of a complaint or request for removal … The plaintiff must show the headmaster had the opportunity and ability to terminate the performance and must show that he failed to do so. Because of the transient nature of the performance there is no question of a reasonable time to stop it, but it must be shown that he had the ability and opportunity to terminate it before its natural conclusion.

22.91 Technically, a service provider which allows defamatory material to be posted on its internet site and leaves it there, is republishing the material. However, cl 91 of Sch 5 of the Broadcasting Services Act 1992 (Cth) provides that internet content hosts and internet service providers are not liable, under any law of any state or territory that may impose liability for content, where the host or service provider was not aware of its nature. See also 23.78. 22.92 In Duffy v Google Inc [2015] SASC 170, it was held that the defendant, an internet search engine, was liable for the publication of defamatory material that was listed in the results when the plaintiff’s name was entered as a search term. The plaintiff has made numerous requests of the

defendant that the material be removed. Blue J of the South Australian Supreme Court held that when the search engine auto-completed searches, by adding ‘psychic stalker’, it either published, republished or directed users towards the defamatory material. Blue J stated (at [204]): Google was the sole operator and controller of the Google website. The paragraphs resided on Google’s website. The paragraphs were communicated by Google to the user conducting a search. Google played a critical role in communicating the paragraphs to the user. The physical element of publication is present. Google did not play the passive role of a mere conduit such as an internet service provider who merely provides access to the internet or a telecommunications carrier who merely provides access to the telephone network. Google played an active role in generating the paragraphs and communicating them to the user. The mere fact that the words are programmed to be generated because they appear on third party webpages makes no difference to the physical element. It makes no difference to the physical element whether a

[page 571] person directly composes the words in question or programs a machine which does so as a result of the program.

22.93 Certain defences were available at common law to republishers who were innocent publishers if it could be shown that there was no knowledge of the defamatory matter, nor any negligence in failing to recognise it in the publication: Martin v Trustees of the British Museum (1894) 10 TLR 338; Vizetelly v Mudie’s Select Library Ltd [1900] 2 QB 170. The defamation legislation now provides the defence of innocent dissemination: Civil Law (Wrongs) Act 2002 (ACT) s 139C; Defamation Act 2005 (NSW) s 32; Defamation Act 2006 (NT) s 29; Defamation Act 2005 (Qld) s 32; Defamation Act 2005 (SA) s 30; Defamation Act 2005 (Tas) s 32; Defamation Act 2005 (Vic) s 32; Defamation Act 2005 (WA) s 32. The section provides a defence for persons who are subordinate distributors. Subsection (3)(f)(ii) states that a subordinate distributor includes a provider of services consisting of ‘operation of, or the provision of, any equipment, system or

service, by means of which the matter is retrieved, copied, distributed or made available in electronic form’. As to defences to defamation, see Chapter 23.

Limitation Period 22.94 Prior to the defamation legislation, the limitation period for defamation varied among the Australian jurisdictions from six months from date of publication, to six years. The defamation legislation has amended the limitation legislation, so that in all states and territories the limitation period is one year from the date of publication with a possible extension of up to three years: Limitation Act 1985 (ACT) s 21B; Limitation Act 1969 (NSW) ss 14B and 56A; Limitation Act 1981 (NT) ss 12(2)(b) and 44A; Limitation of Actions Act 1974 (Qld) ss 10AA and 32A; Limitation of Actions Act 1936 (SA) s 37; Defamation Act 2005 (Tas) s 20A; Limitation of Actions Act 1958 (Vic) ss 5(1AAA) and 23B; Limitation Act 2005 (WA) ss 15 and 40.

6

Australian Consumer Law

22.95 It would be possible for a publication that is defamatory or amounts to an injurious falsehood, to also be misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law (previously s 52 of the Trade Practices Act 1974 (Cth)). Section 18 of the Australian Consumer Law (Competition and Consumer Act 2010 (Cth) Sch 2) states: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

As a law of the Commonwealth, for s 18 to apply the defendant must be a corporation engaged in trade or commerce; as a state or territory law, s 18 applies to natural persons engaged in trade or commerce.

22.96 However, the Australian Consumer Law as a Commonwealth law will apply to unincorporated individuals, when using postal, telegraphic or telephonic services or radio or television broadcasts: Competition and Consumer Act 2010 (Cth) s 6(3). Therefore, [page 572] a natural person publishing matter on the internet would be caught by the Australian Consumer Law as a Commonwealth law or as a law of the state or territory, as long as they were engaged in trade or commerce: Australian Competition and Consumer Commission v Chen (2003) 201 ALR 40. In Dataflow Computer Services Pty Ltd v Goodman (1999) 168 ALR 169, it was held that the sending of an email by an individual, pointing out transactions between the plaintiff and another business, was not done in trade or commerce. It was stated (at [23]) that: [The plaintiff’s] conduct is more appropriately characterised as that of a bystander commenting on the trade or commerce in which others are engaged, rather than something done in that, or any other, trade or commerce.

In Madden v Seafolly Pty Ltd (2014) 313 ALR 1, the appellant, the principal of Whitesands, a competitor of the respondent, claimed that the respondent had ‘ripped off’ her designs. The appellant also posted comments on her personal Facebook page. The court held that these postings were in trade or commerce as the appellant was the principal of the business and her statements related to the way in which the respondent conducted its business: at [97]–[98]. See also Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52.

Defamation 22.97 The main advantage of bringing an action under the Australian Consumer Law as opposed to an action in defamation, is that the many defences to defamation would not be available. To overcome this strategic

preference, the legislation exempts certain persons from the application of s 18. Section 19 of the Australian Consumer Law provides that s 18 does not apply to ‘information providers’. Section 19(4) and (5) clarify that an ‘information provider’ is a person who carries on the business of providing information, and, for example, includes licence holders under the Broadcasting Services Act 1992 (Cth) and the Australian Broadcasting Corporation. 22.98 However, s 18 will apply if the information published is an advertisement or connected with the supply of goods and services of the kind supplied by the information provider: s 19(2) and (3). See, for example, Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305; 255 ALR 1 (Commission alleged that the broadcast of two episodes of the ‘Today Tonight’ program were misleading or deceptive about the benefits of a mentoring program and was not within the exemption). 22.99 In Gianni Versace SpA v Monte (2002) 119 FCR 349 at [45], the High Court held that it was no defence to an allegation of misleading or deceptive conduct that the law of defamation covers the field. In that case, the respondent wrote what was claimed to be an autobiography, in which he claimed a long association with the appellants and gave details of conversations and written communications that reflected badly upon them. The appellants sued for breach of s 52 of the Trade Practices Act 1974 (Cth) (equivalent to s 18 of the Australian Consumer Law) as well as in defamation. The court held that the equivalent to s 19 of the Australian Consumer Law (s 65A of the Trade Practices Act 1974 (Cth)) did not apply to provide the respondent with any protection because he was not an ‘information provider’ as required by the provision:

[page 573] Not all writers or publishers are in the business of providing “information”, and Monte himself acknowledged that his book uses “poetic licence”. Moreover, his reported description of the book as “a fast moving, fictionalised-type film” undermines any submission that the intent was for the provision of information, although he was reported as indicating that this description did not mean that the contents of the book were not true: at [131].

It was held that the book was in trade or commerce as it had been written for commercial gain by the respondent. In Nixon v Slater & Gordon (2000) 175 ALR 15, a photograph of the plaintiffs, two surgeons, appeared on the cover of a medical malpractice booklet published by the defendant, a firm of solicitors. The plaintiffs sued in defamation and for misleading or deceptive conduct, alleging that the defendant had imputed that the plaintiffs were the subject of medical malpractice claims or that they had agreed, for reward, to their professional repute being used by the defendant to promote litigation of such claims. The Federal Court held that the publication and distribution of the booklet was in trade and commerce and that the imputations alleged by the plaintiffs were reasonable in the circumstances. The defendant was held to have engaged in misleading or deceptive conduct and to be liable in defamation.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Chs 17 and 18. P George, Defamation Law in Australia, 2nd ed, LexisNexis Butterworths, Sydney, 2012. D Mahoney, ‘Defamation Law — A Time to Rethink’ in N J Mullany (ed), Torts in the Nineties, LBC Information Services, Sydney, 1997.

1.

T F T Plucknett, A Concise History of the Common Law, 5th ed, Butterworth & Co Ltd, London, 1956, p 482.

2.

Citing J Gatley, Libel and Slander, 10th ed, Sweet & Maxwell, London, 2004, [3.26].

[page 575]

Chapter 23 Defences and Remedies in Defamation 1

Introduction

23.1 In Eatock v Bolt (2011) 197 FCR 261; 283 ALR 505 at [238], it was noted: The right of freedom of expression at common law is, by definition, qualified by those exceptions otherwise provided by law. The law of defamation imposes significant limitations on freedom of expression. Other laws imposing limitations include laws dealing with blasphemy, contempt of court and of Parliament, confidential information, the torts of negligent misstatement, deceit and injurious falsehood. Further, a wide range of legislative provisions dealing with obscenity, public order, copyright, censorship and consumer protection place restrictions on the exercise of the right to freedom of expression. These laws recognise that there are legitimate countervailing interests which require the imposition of limitations upon freedom of expression.

The action of defamation seeks to keep a balance between the right of an individual to protect his or her reputation and the right of freedom of speech: Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104. This balance is achieved through a complex set of defences that seeks to protect the right of publication, where reasonable, in the public interest. If no successful defence is raised by the defendant, the plaintiff is entitled to damages to compensate them for the injury to their reputation and other economic loss. In addition to damages, if it is appropriate, an injunction to prevent either the publication or the republication of the defamatory matter may be ordered by the court.

2

Defences

23.2 With the introduction of the national defamation laws, defences contained in the Defamation Acts are in addition to the defences available under the common law: Civil Law (Wrongs) Act 2002 (ACT) s 134(1); Defamation Act 2005 (NSW) s 24(1); Defamation Act 2006 (NT) s 21(1); Defamation Act 2005 (Qld) s 24(1); Defamation Act 2005 (SA) s 22(1); Defamation Act 2005 (Tas) s 24(1); Defamation Act 2005 (Vic) s 24(1); Defamation Act 2005 (WA) s 24(1). Therefore, the defences contained in the Acts coexist with the defences at common law. 23.3 A defendant may plead alternate and inconsistent defences: Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305. [page 576]

Justification (Truth) 23.4 Truth is a complete defence at common law and under the legislation. In Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 21, it was explained that there is the presumption that telling the truth about a person cannot injure their reputation. The belief of the defendant that the material is true, even if there are reasonable grounds to do so, is irrelevant to the defence: E Hulton & Co v Jones [1910] AC 20 at 23–4.

Common law 23.5 For the defence of truth at common law to succeed, the matter complained of must be true, both in substance and effect: Howden v ‘Truth’ &

‘Sportsman’ Ltd (1937) 58 CLR 416; [1938] ALR 208. Therefore, the defendant must prove that not only is the literal meaning of the defamatory imputation true but also any inference that a reasonable person may draw from the matter: Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232. In Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192, it was held that the correct test for truth was the general community standard, not that of a right-thinking person. 23.6 For the defence to succeed, the imputation must be accurate in all except the most minor of details. Any inaccuracy cannot alter or aggravate the imputation: Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at 22; Alexander v North Eastern Railway Co (1865) 6 B & S 340; 122 ER 1221.

Legislation 23.7

The legislation provides:

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

See Civil Law (Wrongs) Act 2002 (ACT) s 135; Defamation Act 2005 (NSW) s 25; Defamation Act 2006 (NT) s 22; Defamation Act 2005 (Qld) s 25; Defamation Act 2005 (SA) s 23; Defamation Act 2005 (Tas) s 25; Defamation Act 2005 (Vic) s 25; Defamation Act 2005 (WA) s 25. 23.8 The statutory defences adopt the common law position that the imputation must be accurate. To be ‘substantially true’, the imputations must be ‘true in substance or not materially different from the truth’: Civil Law (Wrongs) Act 2002 (ACT) s 116; Defamation Act 2005 (NSW) s 4; Defamation Act 2006 (NT) s 3; Defamation Act 2005 (Qld) Sch 5; Defamation Act 2005 (SA) s 4; Defamation Act 2005 (Tas) s 4; Defamation Act 2005 (Vic) s 4; Defamation Act 2005 (WA) s 4 (referred to as the ‘definition provision’).

23.9 If the defamatory matter contains the imputation that the plaintiff is guilty of an offence, the defamation legislation in all jurisdictions, except South Australia, provides that a conviction of an offence in an Australian court is evidence that the offence was committed: Civil Law (Wrongs) Act 2002 (ACT) s 139M; Defamation Act 2005 (NSW) s 42; Defamation Act 2006 (NT) s 39; Defamation Act 2005 (Qld) s 42; Defamation Act 2005 (Tas) s 42; Defamation Act 2005 (Vic) s 42; Defamation Act 2005 (WA) s 42. This is different [page 577] from the common law position which does not regard a conviction as evidence that an imputation of guilt is true. 23.10 As it is permissible to plead multiple imputations as arising from the defamatory matter, to succeed with the defence of truth, the truth of each imputation must be established. This is because the defamation legislation provides that regardless of how many imputations are pleaded by the plaintiff, only one action in defamation arises: see 22.48.

Contextual Truth 23.11 The defence of contextual truth covers the situation where the defamatory matter conveys multiple imputations and the plaintiff chooses specific imputations only. The defence allows the defendant to raise the other possible imputations and prove their truth. The defence of contextual truth existed prior to the national defamation laws in New South Wales and Tasmania: Defamation Act 1974 (NSW) s 16 (repealed); Defamation Act 1957 (Tas) s 18 (repealed). 23.12

The defamation legislation provides the defence of contextual truth:

Civil Law (Wrongs) Act 2002 (ACT) s 136; Defamation Act 2005 (NSW) s 26; Defamation Act 2006 (NT) s 23; Defamation Act 2005 (Qld) s 26; Defamation Act 2005 (SA) s 24; Defamation Act 2005 (Tas) s 26; Defamation Act 2005 (Vic) s 26; Defamation Act 2005 (WA) s 26. The defamation legislation states: It is a defence to the publication of defamatory matter if the defendant proves that — (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (contextual imputations) that are substantially true; and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

23.13 The defence was explained in the following terms by Simpson J in Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139 at [166]: … when a defence of contextual truth is pleaded and reliance is placed upon imputations pleaded by a plaintiff, the defence is anticipatory; it is an attempt to justify any imputations not found to have been substantially true by reference to any imputations that have been found to be substantially true, and to show that, by reason of the truth of those in the latter category, those in the former category have not caused any additional injury to the plaintiff’s reputation.

23.14 An example of the defence is found in John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227, where the appellant raised the defence of contextual truth in s 16 of the now repealed Defamation Act 1974 (NSW). The defendant had published an article in a newspaper that reported that the respondent had carried out an illegal backburn when the caravan site he managed was under threat from a bushfire. The jury found that the article carried two defamatory imputations of the respondent: first, that he had lost control of his backburn and, second, that he had interfered with the main strategy of the Fire Control Officer. The appellant argued two contextual imputations: first, that the respondent had carried out an illegal backburn and, second, that the backburn was carried out in [page 578]

circumstances of extreme fire danger. In considering the defence of contextual truth, it was stated (at [38]–[40]): The facts which establish that the [respondent] lit an illegal backburn in circumstances of extreme fire danger are part of the context in which the impact of each of the [respondent’s] imputations must be assessed. The [appellant’s] imputations focus on the [respondent’s] conduct whereas the [respondent’s] imputations focus on that conduct and its consequences. Both deal with a backburn that had been lit by the [respondent], that was illegal, and had been lit in circumstances of extreme fire danger. The [respondent’s] first imputation contains the additional allegation that he lost control of that backburn. In my judgment this meant that the [respondent] had been reckless, incompetent, or both in lighting and controlling his illegal backburn and this additional allegation must have further injured his reputation. The second imputation contains the additional allegation that as a result of him losing control of his backburn the main strategy of the Shoalhaven Fire Control Officer was wrecked and of course this necessarily involved increased risks to the lives and property of others. This additional allegation in the second imputation must have further injured the reputation of the [respondent]. The appellant’s challenge to this part of the Judge’s decision therefore fails.

23.15 The defence only applies to imputations that have not been pleaded by the plaintiff, that is, the defendant may not ‘plead back’: Besser v Kermode (2011) 282 ALR 314. Therefore, the contextual imputations pleaded by the defendant must be different to the imputations pleaded by the plaintiff: John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484.

Absolute Privilege 23.16 It is recognised that, in certain circumstances, the right to freedom of speech needs to be protected even though it may cause damage to a person’s reputation. Such occasions include parliamentary proceedings, judicial proceedings and communications between officers of state, where absolute privilege protects the speaker from an action in defamation. The defence applies only to certain publications and the intention of the publisher is irrelevant. 23.17

The common law and various legislation, including the defamation

legislation, provide the defence of absolute privilege in specific circumstances. The defamation legislation states that it is a ‘defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege’: Civil Law (Wrongs) Act 2002 (ACT) s 137(1); Defamation Act 2005 (NSW) s 27(1); Defamation Act 2006 (NT) s 24(1); Defamation Act 2005 (Qld) s 27(1); Defamation Act 2005 (SA) s 25(1); Defamation Act 2005 (Tas) s 27(1); Defamation Act 2005 (Vic) s 27(1); Defamation Act 2005 (WA) s 27(1).

Parliamentary proceedings 23.18 Absolute privilege, in respect of parliamentary proceedings, is a long-established defence and can be traced as far back as the Bill of Rights 1688 in which Art 9 stated ‘that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament’. In Holding v Jennings [1979] VR 289 at 291, it was held: The privilege of freedom of speech in Parliament has been repeatedly recognized and affirmed, and it is clear law that no proceedings, either civil or criminal, may be taken against a member

[page 579] of Parliament for anything said or done by him in Parliament, and a member is not examinable outside Parliament concerning anything said by him in Parliament.

23.19 Both the common law and the defamation legislation allow the defence of absolute privilege in respect of publications in the course of proceedings of parliamentary bodies. Various legislation at federal and state levels also allows the defence for specific publications related to such proceedings. 23.20

Common law Under the common law, no statement made in

parliament may be the basis for an action in defamation. In Stockdale v Hansard (1839) 9 Ad & E 1 at 114; 112 ER 1112 at 1156, it was stated: … whatever is done within the walls of either assembly must pass without question in any other place. For speeches made in Parliament by a member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete impunity.

The privilege is attached to the parliamentary proceedings, not the speaker, nor the subject. Therefore, if a member of parliament makes a defamatory statement during proceedings and then repeats it outside parliament, the repetition is not protected: R v Lord Abingdon (1794) 170 ER 337; R v Creevey (1813) 105 ER 102; Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1; Beitzel v Crabb [1992] 2 VR 121. The defence extends to documents produced in the preparation of a debate or a speech for parliament (Holding v Jennings [1979] VR 289) and statements by witnesses before a committee of parliament: see Goffin v Donnelly (1881) 6 QBD 307. Reports and proceedings published under the authority of the parliament are also protected. 23.21 Defamation legislation In respect of parliamentary proceedings, the relevant provision states: (2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if — (a) the matter is published in the course of the proceedings of a parliamentary body, including (but not limited to) — (i)

the publication of a document by order, or under the authority, of the body; and

(ii) the publication of the debates and proceedings of the body by or under the authority of the body or any law; and (iii) the publication of matter while giving evidence before the body; and (iv) the publication of matter while presenting or submitting a document to the body; …

See Civil Law (Wrongs) Act 2002 (ACT) s 137(2)(a); Defamation Act 2005 (NSW) s 27(2)(a); Defamation Act 2006 (NT) s 24(2)(a); Defamation Act 2005 (Qld) s 27(2)(a); Defamation Act 2005 (SA) s 25(2)(a); Defamation Act

2005 (Tas) s 27(2)(a); Defamation Act 2005 (Vic) s 27(2)(a); Defamation Act 2005 (WA) s 27(2)(a). 23.22 ‘Parliamentary body’ is defined in the definition provision (see 23.8) of the legislation as: (a) a parliament or legislature of any country; or (b) a house of a parliament or legislature of any country; or

[page 580] (c) a committee of a parliament or legislature of any country; or (d) a committee of a house or houses of a parliament or legislature of any country.

23.23 Other legislation Absolute privilege is also provided for by various statutes that were enacted prior to the defamation legislation and, therefore, cover many of the same circumstances. For example, the authorised publication of material presented to the Federal Parliament or a committee of the parliament is protected, as is the publication of the proceedings, debates and reports of the parliament (Parliamentary Papers Act 1907 (Cth) ss 2–4) and the broadcasting of parliamentary proceedings: Parliamentary Proceedings Broadcasting Act 1946 (Cth) s 15. Similar protection is provided by state and territory legislation: Australian Capital Territory (SelfGovernment) Act (Cth) 1988 s 24(3); Legislative Assembly (Powers and Privileges) Act 1992 (NT) ss 4, 6; Constitution Act 1934 (SA) s 38; Constitution Act 1975 (Vic) s 19(1); Parliamentary Privileges Act 1891 (WA) s 1. The Parliamentary Privileges Act 1987 (Cth) also provides the defence of absolute privilege for a ‘fair and accurate report of proceedings’ of a federal parliament or a committee: s 10. For the defence to apply, the publication must be without any adoption of the substance matter by the defendant. Publications may be in any form.

There is also legislation that provides absolute privilege for specific bodies, for example s 88(2) of the Hospital and Health Boards Act 2013 (Qld) provides that a person who is or was a member of a quality assurance committee has the defence of absolute privilege in a proceeding for defamation.

Judicial proceedings 23.24 For justice to be properly administered, it requires judicial proceedings to be completely protected from suits of defamation: Cabassi v Vila (1940) 64 CLR 130; Munster v Lamb (1883) 11 QBD 588 at 604–5; Watson v McEwan [1905] AC 480 at 486. The privilege applies to judges, parties to the action, witnesses, legal practitioners and jurors. It applies to all the steps involved in proceedings, for example initiating the proceedings, pleadings, evidence given and the judgment. In Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, it was held by the House of Lords that a letter written by a solicitor to a witness during proceedings attracted absolute privilege. 23.25 Common law At common law, the absolute privilege bestowed upon judicial proceedings also applies in respect of proceedings of tribunals and quasi-judicial bodies (Mann v O’Neill (1997) 191 CLR 204; 145 ALR 682), for example professional disciplinary boards such as the Solicitors’ Board in Hercules v Phease [1994] 2 VR 411. As Royal Commissions do not have judicial functions, proceedings and reports do not attract the defence: Douglass v Lewis (1982) 30 SASR 50; Hasselblad (GB) Ltd v Orbinson [1985] QB 475. 23.26 Communications between a solicitor and client in relation to judicial proceedings are also protected by absolute privilege: Watson v McEwan [1905] AC 180. Publications that take place during ordinary transactions, such as a conveyance transaction that is not litigated, are not protected. However, due to legal professional privilege, communications

between a solicitor and client would be protected from being admissible as evidence. [page 581] 23.27 The defence of absolute privilege was considered by the High Court in Mann v O’Neill (1997) 191 CLR 204; 145 ALR 682. The facts were that Dr Mann had been the unsuccessful defendant in two matters heard in the Small Claims Court of the Australian Capital Territory. On both occasions, the magistrate hearing the matter was the plaintiff in the present action. Shortly after judgment was entered against him in the second matter, Dr Mann wrote to the Attorney-General of the Commonwealth and, later, to the Federal Minister of Justice and the Chief Magistrate of the Australian Capital Territory. In these letters, he questioned the plaintiff’s fitness to hold office and his mental capacity to conduct cases as a magistrate. The plaintiff sued in defamation and the defendant argued that the letters were protected by absolute privilege because either they should be regarded as a step in the proceedings of the Small Claims Court, or because they were the necessary first step for the institution of proceedings to remove the magistrate from office. The defence was upheld at first instance, but was struck out on appeal in a 2:1 decision in the Federal Court. In the High Court, only McHugh J would have allowed the appeal; the other six members of the bench dismissed the appeal, although noting that, on the facts of the case, a defence of qualified privilege may be available. Commenting on the defence of absolute privilege, Brennan CJ, Dawson, Toohey and Gaudron JJ stated (at CLR 213–14; ALR 686): Whatever the position with respect to communications between the officers of States, absolute privilege attaches to statements made in the course of parliamentary and judicial proceedings for reasons of necessity. Thus, it has been said that absolute parliamentary privilege arises from “inherent necessity”. And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that

persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the “safe administration of justice”. It may be that the various categories of absolute privilege are all properly to be seen as grounded in necessity, and not on broader grounds of public policy. Whether or not that is so, the general rule is that the extension of absolute privilege is “viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated”. Certainly, absolute privilege should not be extended to statements which are said to be analogous to statements in judicial proceedings unless there is demonstrated some necessity of the kind that dictates that judicial proceedings are absolutely privileged. And it is that consideration that leads to the rejection of the argument that absolute privilege attaches to the letter to the Attorney-General because it is analogous to a notice of appeal.

23.28 See also Cunliffe v Woods [2012] VSC 254 (letter from defendant, stating that statements in the plaintiff’s affidavit were unlikely to be true, was incidental to proceedings). In regard to the quasi-judicial proceedings of professional disciplinary bodies, such as law societies, their Honours in Mann v O’Neill (1997) 191 CLR 204; 145 ALR 682 commented (at CLR 214–15; ALR 687–8): So far as absolute privilege is claimed on the basis that Dr Mann’s letters were “necessary first steps for the institution of proceedings for the removal of [the magistrate, Mr O’Neill]”,

[page 582] there are cases which support the view that disciplinary proceedings or, more accurately, the proceedings of some disciplinary tribunals are quasi-judicial. Thus, for example, it was held in Addis v Crocker [[1961] QB 11] that absolute privilege attached to the proceedings of the disciplinary committee of the Law Society of England and Wales. More recently, it was accepted in Hercules v Phease [[1994] 2 VR 411] that proceedings of the disciplinary committee of the Law Institute of Victoria are absolutely privileged. So, too, it was accepted in Lincoln v Daniels [[1962] 1 QB 237] that disciplinary inquiries by the Benchers of the Inns of Court are absolutely privileged, notwithstanding that they are not authorised by statute and that their procedures differ in material respects from those of a court. …

Many professions now have complaint procedures to ensure observance of professional standards, with complaints leading to or, at least, having the potential to lead to disciplinary proceedings. Often, the procedures provide for the complaint to be referred for investigation and allow the person or body charged with investigation to determine whether or not disciplinary proceedings will result. Assuming for present purposes that such proceedings are quasi-judicial, two questions arise. The first is whether a particular communication is a complaint for the purpose of those proceedings, a question which arose in Telatax Consultants v Williams [[1989] 1 NZLR 698]. The second is whether, given that disciplinary proceedings will not automatically follow, the complaint is a step in those proceedings. That was the question in Hercules v Phease. Where, in Hercules v Phease, the complaint is part of an established procedure which must be set in motion if it is to result in disciplinary proceedings, the complaint is properly regarded as a step in those proceedings even if disciplinary proceedings will not necessarily eventuate. In that situation, the complaint is “incidental [to the proceedings], and necessary for [them]”. Accordingly, it is properly to be regarded as a necessary first step. But that is not the situation in this case. [footnotes omitted]

23.29 Defamation legislation Judicial proceedings are also protected by the defamation legislation, which states that there is absolute privilege when: … the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to) — (i)

the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process); and

(ii) the publication of matter while giving evidence before the court or tribunal; and (iii) the publication of matter in any judgment, order or other determination of the court or tribunal.

See Civil Law (Wrongs) Act 2002 (ACT) s 137(2)(b); Defamation Act 2005 (NSW) s 27(2)(b); Defamation Act 2006 (NT) s 24(2)(b); Defamation Act 2005 (Qld) s 27(2)(b); Defamation Act 2005 (SA) s 25(2)(b); Defamation Act 2005 (Tas) s 27(2)(b); Defamation Act 2005 (Vic) s 27(2)(b); Defamation Act 2005 (WA) s 27(2)(b). 23.30 ‘Australian court’ is defined in the definition provision of the legislation (see 23.8) as ‘any court established by or under a law of an Australian jurisdiction (including a court conducting committal proceedings

for an indictable offence)’. Unlike the common law, Royal Commissions are given absolute privilege as the legislation defines ‘Australian tribunal’ as: [page 583] … any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).

23.31 Other legislation As with parliamentary proceedings, legislation was enacted to extend the defence of absolute privilege to areas connected with judicial proceedings that were not covered by the common law. For example, as proceedings of a Royal Commission were not protected by absolute privilege at common law as they are investigatory in nature, not judicial (see 23.25), legislation was enacted to extend privilege to such investigatory bodies: for example, Royal Commissions Act 1902 (Cth) s 7. However, as noted in 23.29, under the defamation legislation, the definition of ‘Australian tribunal’ expressly includes a Royal Commission.

Communications between officers of state 23.32 Communications between officers of state in the course of official duties are absolutely privileged under the common law: Chatterton v Secretary of State for India [1895] 2 QB 189; M Isaacs & Sons Ltd v Cook [1925] 2 KB 391. The defence is limited to communications between officers of state and their subordinates for matters relating to their office. There is no equivalent defence under the defamation legislation.

Qualified Privilege 23.33 The defence of qualified privilege covers a variety of situations, the common theme being that there is a duty or interest to publish the

defamatory material and the recipient has a corresponding duty or interest to receive it: Adam v Ward [1917] AC 309. The policy behind the defence of qualified privilege is that the public have a right to be informed of proceedings and, therefore, the reporters of those proceedings should be protected. See Cush v Dillon (2011) 243 CLR 298; 279 ALR 631 at [12]; Aktas v Westpac Banking Corporation (2010) 241 CLR 79; 268 ALR 409 at [22]. In Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [62], Gaudron, McHugh and Gummow JJ stated: The common law protects a defamatory statement made on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it (Adam v Ward [1917] AC 309 at 334; [1916–17] All ER Rep 157 at 157 per Lord Atkinson). Communications made on such occasions are privileged because their making promotes the welfare of society (Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1050 per Parke B). But the privilege is qualified — hence the name qualified privilege — by the condition that the occasion must not be used for some purpose or motive foreign to the duty or interest that protects the making of the statement.

See also Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192.

Common law 23.34 Scrutton LJ in Watt v Longsdon [1930] 1 KB 130 at 147–8 explained the occasions to which the defence of qualified privilege may apply as: (1) a duty to communicate information believed to be true to a person who has a material interest in receiving the information, or

[page 584] (2) an interest in the speaker to be protected by communicating information, if true, relevant to that interest, to a person honestly believed to have a duty to protect that interest, or (3) a common interest in and reciprocal duty in respect of the subject matter of the communication between speaker and recipient.

23.35 It is a question of law whether the occasion is privileged and a question of fact whether the occasion was used for the purpose of the

privilege, that is, there was no malice in the part of the defendant: Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 at [22]. 23.36 As the privilege attaches to the occasion, it can be difficult to determine whether in the circumstances the defence applies. Gleeson CJ, Hayne and Heydon JJ stated in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 at [9]–[10]: The principles to be applied in determining whether the occasion of publication of matter about which complaint is made was an occasion of qualified privilege are well known. The authorities that state those principles are equally well known (Toogood v Spyring (1834) 1 Cr M & R 181; 149 ER 1044; Adam v Ward [1917] AC 309). Frequent reference is made to the statement of Parke B in Toogood v Spyring ((1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1049–50): In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits. Reciprocity of duty or interest is essential (Adam v Ward [1917] AC 309 at 334). These principles are stated at a very high level of abstraction and generality. “The difficulty lies in applying the law to the circumstances of the particular case under consideration” (Macintosh v Dun (1908) 6 CLR 303 at 305; [1908] AC 390 at 398 per Lord Macnaghten). Concepts which are expressed as “public or private duty, whether legal or moral” (Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1050 per Parke B) and “the common convenience and welfare of society” (Toogood v Spyring (1834) 1 Cr M & R 181 at 193; 149 ER 1044 at 1050 per Parke B) are evidently difficult of application. When it is recognised, as it must be, that “the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact” (London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 at 22 per Lord Buckmaster LC) it is clear that in order to apply the principles, a court must “make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication” (Guise v Kouvelis (1947) 74 CLR 102 at 116 per Dixon J).

[page 585] 23.37 The categories of qualified privilege under the common law are not closed, but there has been no expansion of the categories for many years. See Marshall v Megna [2013] NSWCA 30. 23.38 When considering the defence of qualified privilege, it must be asked, what legal, social or moral duties existed between the defendant as publisher and the recipients; and was there reciprocity of duty or interest? 23.39 Duty or interest to publish A publication by a person under a legal, social or moral duty to publish to a person having an interest in the publication is protected: Cush v Dillon (2011) 243 CLR 298; 279 ALR 631; Roberts v Bass (2002) 212 CLR 1; 194 ALR 161. The publication need not be for the defendant’s own interest, but may be for the protection of others. However, the duty or interest must exist as a belief by the defendant that they have such a duty or interest will not be sufficient: Adam v Ward [1917] AC 309. 23.40 Reciprocity There must be reciprocity between the two parties: Watt v Longsdon. Lord Campbell CJ in Harrison v Bush (1855) 5 E & B 344 at 348; 119 ER 509 at 512, stated: A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter which, without this privilege, would be slanderous and actionable.

In Adam v Ward [1917] AC 309 at 334, the requirement of reciprocity was emphasised: It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes the communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

It is a question for the judge to determine whether there was reciprocity: Stuart v Bell [1891] 2 QB 341; Guise v Kouvelis (1947) 74 CLR 102. 23.41 The defence may be raised if there was publication by a person having a common interest in the publication with the person to whom publication is made. Here, the interest must be common and not merely reciprocal: London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184. In Howe v Lees (1910) 11 CLR 361 at 369, it was stated: Any legitimate object for the exercise of human faculties pursued by several persons in association with another may be sufficient to establish community of interest. … “interest” does not mean an interest in the particular fact communicated, but an interest in knowing that fact; in other words, an interest in the subject matter to which the communication is relevant …

23.42 However, an interest is more than being interested as ‘a matter of gossip or curiosity’: Howe v Lees (1910) 11 CLR 361 at 398; Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 662; Bruton v Estate Agents Licensing Authority [1996] 2 VR 274 at 293. McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 at [69] gives the example: If the employer is asked whether the employee is fit to be employed as a gardener, it is unlikely that the occasion of privilege would extend to details about the employee’s convictions for negligent driving.

[page 586] 23.43 Publications made by a person in defence of reputation or property to a person having an interest in receiving the publication may be protected. For example, in Mowlds v Fergusson (1940) 64 CLR 206, the High Court noted that a former Commissioner of Police, having been shown a report by the defendant that defamed the plaintiff, would have an interest in receiving information about his own administration. See also Bashford v Information

Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 at [65]; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192 at [36]. 23.44 It is rare for a defamatory publication to an audience at large to be within the defence of qualified privilege, but it is possible if the material is directed to persons who have an interest in the matter: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 570; 145 ALR 96 at 114; Aktas v Westpac Banking Corporation (2010) 241 CLR 79; 268 ALR 409; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192 at [20]. For example, in Bowin Designs Pty Ltd v Australian Consumers Association (1996) A Def R 52-078, an issue of Choice magazine contained an article criticising the safety aspects of a gas heater. The issue was sent to approximately 140,000 subscribers. Lindgren J held that the defence of qualified privilege was established as the defendant had a moral and social duty to alert owners of the heaters of the potential danger and that members of the general public also had an interest in being warned. See also Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193, where the High Court held that there was reciprocity of duty or interest in the publication of a bulletin to paid subscribers responsible for occupational health and safety matters, noting that the ‘circumstances of publication were, therefore, very different from those in which the general news media deal with matters of political or other interest’: at [26]. 23.45 A response to an attack by the plaintiff that, in itself, is defamatory may be within the defence of qualified privilege: Loveday v Sun Newspapers Ltd (1938) 59 CLR 503. If the attack by the plaintiff was published widely, for example on radio, then it is more acceptable for the defendant’s reply to also be published in a similar way: Loveday v Sun Newspapers Ltd (1938) 59 CLR 503; Harbour Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192 at [32]; Penton v Calwell (1945) 70 CLR 219 at 233–4; [1945] ALR 262 at 265. In Madden v Seafolly Pty Ltd (2014) 313 ALR 1, the appellant argued that the respondent’s reply to her accusations that it had copied her designs had

gone beyond what was allowed to it on an occasion of qualified privilege. The court held (at [150]): The privilege protects the publication of untrue or defamatory matter provided that there is an occasion supporting both the publication itself and its being published to the persons in the audience to whom it is made. Thus, if a person published defamatory matter to a limited audience, of say, one or two individuals in a private meeting, the person defamed would have a privileged occasion to respond to that publication by putting his or her case to the audience, but, ordinarily, would not be able to argue that a response in a public broadcast in the media or on the internet was within a privileged occasion.

23.46 However, the response must not go beyond the original attack by contained extraneous material, otherwise malice may be inferred: Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449 at 470–1; Adam v Ward [1917] AC 309; Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193; Harbour [page 587] Radio Pty Ltd v Trad (2012) 247 CLR 31; 292 ALR 192. The response must be relevant and proportionate: Penton v Calwell (1945) 70 CLR 219; [1945] ALR 262; Madden v Seafolly Pty Ltd (2014) 313 ALR 1.

Defamation legislation 23.47 The defamation legislation provision that is equivalent to the common law is entitled ‘Defence of qualified privilege for the provision of certain information’. The provision states: There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that — (a) the recipient has an interest or apparent interest in having information on some subject; and (b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and (c) the conduct of the defendant in publishing that matter is reasonable in the

circumstances.

See Civil Law (Wrongs) Act 2002 (ACT) s 139A(1); Defamation Act 2005 (NSW) s 30(1); Defamation Act 2006 (NT) s 27(1); Defamation Act 2005 (Qld) s 30(1); Defamation Act 2005 (SA) s 28(1); Defamation Act 2005 (Tas) s 30(1); Defamation Act 2005 (Vic) s 30(1); Defamation Act 2005 (WA) s 30(1). This differs to the common law position as it will apply when the recipient has an interest or apparent interest and it requires that the conduct of the defendant be reasonable. 23.48 Subsection (3) of the provision specifies what a court may take into account when determining whether the publication was reasonable, for example the extent of public interest in the matter, the steps taken to verify the information and the seriousness of the defamatory imputation. In Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, the court considered the reasonableness of the respondents publishing posters and tweets containing defamatory imputations. It was held that the respondents would have known that at the time of publishing the poster and tweets to advertise the print and online articles that they would have been read by persons who would not read the articles and therefore their understanding would be restricted to the imputations conveyed by the poster and tweets: at [240]. It was accepted that it the poster and tweets were conventional practice to promote the sale of newspapers; however, White J did not accept that it was reasonable for the respondents to do it in the manner they did as there were ‘readily available alternative formats of the poster’ by which the articles could have been promoted: at [243]. As to the tweets, his Honour noted, ‘the 140 character limit on tweets would still have permitted alternative forms of eye catching promotion of the articles’: at [244]. See also, Forrest v Chlanda [2012] NTSC 14, where it was held that due to the serious nature of defamatory imputations and the fact that the defendant had made assumptions without verification when there was no urgency for publishing meant that the conduct in publishing the article was not

reasonable and the defence of qualified privilege under s 27 of the Defamation Act 2006 (NT) failed. [page 588] 23.49 Subsection (4) of the provision provides that the defence of qualified privilege is lost if the defendant was actuated by malice. The defamation legislation provides that where malice may defeat a defence, the general law applies to determine if there was malice: Civil Law (Wrongs) Act 2002 (ACT) s 134(2); Defamation Act 2005 (NSW) s 24(2); Defamation Act 2006 (NT) s 21(2); Defamation Act 2005 (Qld) s 24(2); Defamation Act 2005 (SA) s 22(2); Defamation Act 2005 (Tas) s 24(2); Defamation Act 2005 (Vic) s 24(2); Defamation Act 2005 (WA) s 24(2).

Loss of qualified privilege 23.50 Unlike the defence of absolute privilege, the defence of qualified privilege may fail if it is established by the plaintiff that the defendant had an improper motive in publishing the material, referred to as ‘malice’ or the publication exceeded the privileged occasion: Adam v Ward [1917] AC 309; Cush v Dillon (2011) 243 CLR 298; 279 ALR 631. 23.51 For the defence to fail, the improper motive must be the dominant motive for the publication: Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [104].Under the common law, malice may be of two kinds: 1.

the defendant has used the occasion to publish the matter complained of for a purpose other than that for which the privilege is given (an improper purpose); or

2.

the defendant did not have an honest belief in the truth of what was published: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 50–4.

Malice, under the defamation legislation, would have the same meaning. 23.52 In the first type of malice, above, by introducing matter in a publication that is not connected with the occasion that attracts privilege, the defence is lost: Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 228. Knowledge that publication will cause injury to the plaintiff by itself is not considered to be an improper purpose: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30. 23.53 As to the second form of malice, the defendant’s belief in the truth of the publication need only be honest, not reasonable, but will include the situation where a defendant publishes with reckless indifference as to whether the matter is true or false: Roberts v Bass (2002) 212 CLR 1; 194 ALR 161. 23.54 In the case of Roberts v Bass (2002) 212 CLR 1; 194 ALR 161, it was held that the lack of an honest belief in the truth of the publication by the appellant or their knowledge that the publication was false, destroyed the defence of qualified privilege: at [77]. The respondent was a member of parliament in South Australia and the appellant was running in opposition in the election for that seat. The appellant prepared and authorised three publications as part of his campaign against the respondent, alleging that the respondent had taken many overseas trips at the expense of taxpayers. The respondent was not reelected and brought an action against the appellant in defamation. The High Court held that evidence of the appellant’s lack of belief or knowledge that the publications were false merely supported an inference that the appellant had been actuated by an improper motive. However, knowledge of falsity would be ‘almost conclusive evidence’ of improper motive, except where the publisher is under a legal duty to publish: at [83]. [page 589]

23.55 In Rowan v Cornwall (No 5) (2002) 82 SASR 152, the plaintiff claimed damages for alleged defamatory material contained in a report that was tabled in the Legislative Assembly of the South Australian Parliament. The report was very critical of the running of a women’s shelter that was administered by the plaintiff. The plaintiff alleged defamation against the members of the committee and claimed that the defence of qualified privilege was defeated by the malice of the members. It was held that the report of the committee attracted qualified privilege; however, the evidence revealed a history of antagonistic behaviour between the plaintiff and some of the members of the committee. As the members had no honest belief in the truth of the statements and had the improper purpose to denigrate the shelter, the defence of qualified privilege was negated: at [513]. 23.56 The malice of one of a number of defendants will not deprive others of the defence unless those others are vicariously liable for the one motivated by malice: Egger v Viscount Chelmsford [1965] 1 QB 248; [1964] 3 All ER 406; but compare Jackson v Australian Consolidated Press Ltd [1966] 2 NSWR 775 at 782. In Rowan v Cornwall (No 5) (2002) 82 SASR 152 at [518], Debelle J stated: In England it has been held that, where a report published by a committee contains defamatory material and qualified privilege is defeated by malice, only those members who were actuated by malice are liable: Egger v Viscount Chelmsford [1965] 1 QB 248. In other words, the innocent members of the committee are not infected with the malice of the others. However, the position has not been conclusively resolved in Australia. In Webb v Bloch [(1928) 41 CLR 331], it was held that all of the members of a committee were liable where malice existed only in a solicitor who had written a report and another member of the committee. The reasoning of Isaacs J in that case (at 363) may be based on the vicarious liability of the committee for the solicitor rather than joint liability of the committee members. In that decision, Knox CJ and Isaacs J applied Smith v Streatfield [1913] 3 KB 764, which was later overruled in Egger v Viscount Chelmsford. Later, in Jackson v Australian Consolidated Press Ltd [1966] 2 NSWR 775 at 782, Smith v Streatfield was said to be good law in Australia in light of the decision in Webb v Bloch. In Dougherty v Chandler (1946) 46 SR (NSW) 370 at 375–376, Jordan CJ treated Webb v Bloch as an instance of vicarious liability, preferring the view that the plaintiff will fail against any defendant against whom “he is unable to sheet home express malice”, a view which Brennan J also expressed in Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 254. I think that the preferable view is that innocent members of a committee are not infected with the

malice of others. Thus, if any member of the Review Committee is not guilty of malice, she will not be liable because malice has been established in another.

23.57

As to the issue of malice and vicarious liability, it was held (at [519]):

The malice of a servant or agent may defeat the defence of qualified privilege of his or her principal where the servant or agent has published the defamatory material in the course of his or her employment.

Protected Reports 23.58 The law recognises that there is interest in judicial and parliamentary proceedings and that reports of such are for the benefit of the community. Therefore, publishers of the reports should be protected if they are fair and accurate. The defence afforded to certain reports derives from the defence of qualified privilege. It is possible that this defence may [page 590] be raised as well as the more general defence of qualified privilege as they are two separate defences. As explained in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366; 204 ALR 193 at [184]: The social objects of each defence are different; but are equally important. The specific one treats the public interest as conclusively established by proof that a report of certain proceedings is fair (and accurate). The other upholds the public interest “where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it” (Roberts v Bass (2002) 212 CLR 1194 ALR 161 at [62]; see also at [160]; cf Toogood v Spyring (1834) 1 CM & R 181 at 193; 149 ER 1044 at 1049–50; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 237–43, 260–4; 124 ALR 80 at 92–8, 111–4; and Tobin and Sexton, Australian Defamation Law and Practice at [14,001]). Each defence, in its different way, “promotes the welfare of society” (Roberts v Bass (2002) 212 CLR 1; 194 ALR 161 at [62]). Legal history rejects any suggestion that a publisher must make an irrevocable election between such defences. The welfare of society does not oblige that such an election should now be imposed by this court.

23.59

In Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519;

154 ALR 294 at [153], Kirby J summarised the principles relevant for the defence: To be a fair report it must be accurate. It must be a report of the proceedings, any comment or opinion will not be covered by the defence. A summary of the proceedings is acceptable as long as it is substantially accurate in all material aspects. See also Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58 at 63. It is a question of fact whether a report is ‘fair and accurate’: Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184.

Common law 23.60

Under the common law, protection is given to:

reports of judicial proceedings; reports of proceedings in parliament (see Jones v John Fairfax & Sons Ltd (1986) 4 NSWLR 466); and reports of other bodies where there is public interest. 23.61 Judicial proceedings Fair and accurate reports of judicial proceedings held in public are protected by qualified privilege: Lewis v Levy (1858) EB & E 537; 120 ER 610; Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58. The defence only applies to judicial proceedings held in open court and, therefore, will not be available if the public were excluded from the proceedings. Reports of proceedings of tribunals are also protected. Reports of witness statements, affidavits and other documents filed at court are not part of the judicial proceedings unless they are received by the court as evidence during the proceedings: Stern v Piper [1997] QB 123; [1996] 3 All ER 385.

[page 591] Reports of proceedings of inquiries held pursuant to executive or legislative authority are protected if the publication is fair and accurate. 23.62 Parliamentary proceedings Parliamentary material published outside of parliament, even if published without parliament’s consent, is protected if fair and accurate: Jones v John Fairfax & Sons Ltd (1986) 4 NSWLR 466. If just a summary or extract is published, it must represent what took place to be fair and accurate. 23.63 Public interest proceedings Fair and accurate reports of bodies other than parliamentary or judicial, must involve some public interest to be privileged. The status of the body, the nature of the defamation and the public interest will all be relevant in determining whether the defence is available. For example, in Bruton v Estate Agents Licensing Authority [1996] 2 VR 274, the appellant sued in defamation for statements contained in the respondent’s annual report. The court held that the defence of qualified privilege could apply to the respondent’s report as there was sufficient public interest. However, by failing to include the full name of the real estate agent who was disciplined, the annual report was not a fair and accurate report (Allan Joseph Bruton was disciplined, plaintiff was Andrew James Bruton, the report stated AJ Bruton).

Defamation legislation 23.64 The defamation legislation also provides protection for fair and accurate reports, in terms of fair reports of proceedings of public concern and publication of matters contained in public documents. 23.65 Proceedings of public concern In respect of proceedings of public concern, the legislation provides:

It is a defence to the publication of defamatory matter if the defendant proves that the (1) matter was, or was contained in, a fair report of any proceedings of public concern. (2) It is a defence to the publication of defamatory matter if the defendant proves that — (a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and (b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and (c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

See Civil Law (Wrongs) Act 2002 (ACT) s 139; Defamation Act 2005 (NSW) s 29; Defamation Act 2006 (NT) s 26; Defamation Act 2005 (Qld) s 29; Defamation Act 2005 (SA) s 27; Defamation Act 2005 (Tas) s 29; Defamation Act 2005 (Vic) s 29; Defamation Act 2005 (WA) s 29. 23.66 Subsection (4) lists what ‘proceedings of public concern’ means, providing a clear basis for occasions that will attract the defence. The list is broad and includes, for example, public proceedings of a parliamentary body, public proceedings of a court or tribunal of any country, proceedings of a sport or recreation association or committee, proceedings of an [page 592] ombudsman of any country, public proceedings of a law reform body and proceedings of a public meeting of shareholders of a public company. 23.67 Subsection (3) provides that the defence will be lost ‘if, and only if, the plaintiff proves the defamatory matter was not published honestly and for the information of the public or advancement of education’. See Sinclair v Bjelke-Petersen [1984] 1 Qd R 484 at 492. 23.68 Public documents The other form of protection is provided for publication of defamatory matter that was contained in a public document.

This overcomes some of the issues with the common law defence as it specifies what public documents are for the purposes of the statutory defence. See Civil Law (Wrongs) Act 2002 (ACT) s 138(1); Defamation Act 2005 (NSW) s 28(1); Defamation Act 2006 (NT) s 25(1); Defamation Act 2005 (Qld) s 28(1); Defamation Act 2005 (SA) s 26(1); Defamation Act 2005 (Tas) s 28(1); Defamation Act 2005 (Vic) s 28(1); Defamation Act 2005 (WA) s 28(1). 23.69 The term ‘public document’ is defined in subs (4) of the provision and includes any report or paper published by a parliamentary body, a judgment or order of a court or tribunal, any document issued by the government for the information of the public, and documents kept by Australian statutory authorities or courts that are open for public inspection. The subsection also allows for parliament to specify a document as a public document for the purpose of the defence. In Lower Murray Urban and Rural Water Corp v Di Masi (2014) 43 VR 348, the Victorian Minister for Water sent a letter to the appellant to be distributed to its customers to inform them that he had appointed the appellant to assume the functions and duties of the First Mildura Irrigation Trust. The letter stated that the members of that board had broken the law by investing funds of the trust without Treasury approval. The appellant distributed the letter to its customers and also uploaded it to its website. The former members of the board sued the appellant for defamation in respect of the website publication. The appellant argued that the publication was privileged under the common law and the corresponding provision of the defamation legislation, and was a protected public document under s 28(4)(d) (any document issued by the government for the information of the public) of the Defamation Act 2005 (Vic). The court held that although the defamation legislation added to the common law defences, that did not mean that they were to be given a wide or beneficial interpretation and regard had to be had to any underlying purpose and object: at [64]. It was held that the Minister’s subjective purpose in issuing the letter was a relevant consideration

in determining whether the letter had been issued for the information of the public. At trial, the jury had found that the purpose of the letter was not for the information of the public. The Court of Appeal noting that in light of all of the evidence, perhaps the purpose was defensive or political, but this could not be known: at [73]. As the publication was not within the objective of s 28(4)(d), the defence failed. 23.70

As noted, at 23.67, the defence may be negated. [page 593]

In Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58, the court considered the requirement of the now repealed Defamation Act 1974 (NSW) s 26, that the publication be for the information of the public or for the advancement of education. Hunt J stated (at 63): The purpose of the publisher must be … to publish the report for public information or for the advancement of education. Such a purpose usually appears from the terms of the matter complained of and from the nature of the vehicle in which it is published: Calwell v Ipec Australia Ltd (1975) 135 CLR 321 at 331. Where the matter complained of purports to be a court report and it appears in a newspaper for general sale in the community, the required purpose is established. Similarly, if it purports to be a report and appears in a legal textbook; whilst the publication in those circumstances may not be for the information of the public, it would be for the advancement of education. Each such purpose looks not to the result which the defendant seeks to achieve by his publication so much as the effect which the defendant intended his publication to have upon the minds of its recipients.

Implied Constitutional Protection 23.71 Publications to the world at large will lack the required reciprocity to attract the defence of qualified privilege: Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457. However, the requisite reciprocity

will exist if the publication to the world at large is about government or political matters. 23.72 The High Court in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 recognised a freedom to publish political discussions implied in the Commonwealth Constitution. A similar freedom of communication was also implied in a state constitution: Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80. 23.73 In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560; 145 ALR 96 at 106–7, the court expressed the freedom as (at CLR 566; ALR 12): … ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power.

The court further held that the defences to defamation available both at common law and under a statute must operate subject to the requirements of the Constitution: In any particular case, the question whether a publication of defamatory matter is protected by the Constitution or is within a common law exception to actionable defamation yields the same answer. But the answer to the common law question has a different significance from the answer to the constitutional question. The answer to the common law question prima facie defines the existence and scope of the personal right of the person defamed against the person who published the defamatory matter; the answer to the constitutional law question defines the area of immunity which cannot be infringed by a law of the Commonwealth, a law of a State or a law of those Territories whose residents are entitled to exercise the federal franchise. That is because

[page 594] the requirement of freedom of communication operates as a restriction on legislative power. Statutory regimes cannot trespass upon the constitutionally required freedom. …

The common law may be developed to confer a head or heads of privilege in terms broader than those which conform to the constitutionally required freedom, but those terms cannot be any narrower. Laws made by Commonwealth or State Parliaments or the legislatures of selfgoverning territories which are otherwise within power may therefore extend a head of privilege, but they cannot derogate from the common law to produce a result which diminishes the extent of the immunity conferred by the Constitution.

In Lange v Australian Broadcasting Corporation (Lange), the plaintiff was a former Prime Minister of New Zealand and was complaining of allegedly defamatory matter published while he was a member of the New Zealand Parliament. The defendant was relying on the decisions of the High Court in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80, and on the common law defence of qualified privilege. The parties had agreed that the case was to be decided on the basis of the law of New South Wales. The court stated (at CLR 570–1; ALR 114–15): The basis of this common law rule is that reciprocity of interest or duty is essential to a claim of qualified privilege at common law. Only in exceptional cases has the common law recognised an interest or duty to publish defamatory matter to the general public. However, the common law doctrine as expounded in Australia must now be seen as imposing an unreasonable restraint on that freedom of communication, especially communication concerning government and political matters, which “the common convenience and welfare of society” now requires. Equally, the system of government prescribed by the Constitution would be impaired if a wider freedom for members of the public to give and to receive information concerning government and political matters were not recognised. … Because the Constitution requires “the people” to be able to communicate with each other with respect to matters that could affect their choice in federal elections or constitutional referenda or that could throw light on the performance of Ministers of State and the conduct of the executive branch of government, the common law rules concerning privileged communications, as understood before the decision in Theophanous, had reached the point where they failed to meet the requirement. However, the common law of defamation can and ought to be developed to take into account the varied conditions to which McHugh J referred. The common law rules of qualified privilege will then properly reflect the requirements of ss 7, 24, 64, 128 and related sections of the Constitution. Accordingly, the Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. The duty to disseminate such information is simply the correlative of the interest in receiving it.

The common convenience and welfare of Australian society are advanced by discussion — the giving and receiving of information — about government and political matters. The interest that each member of the Australian community has in such a discussion extends the categories of qualified privilege.

[page 595] Therefore, under the common law the defence of qualified privilege was extended to include statements made in discussion of political and government matters. 23.74

For the defence to be successful:

the alleged defamatory matter must be about government or political matters; the publication must be reasonable in all of the circumstances; and the defendant must not be actuated by malice.

Government or political matters 23.75 In Lange at CLR 571; ALR 115–16, it was stated by the court that the defence would apply to: ‘matters concerning the United Nations or other countries … even if those discussions cannot illuminate the choice for electors at federal elections or in amending the Constitution or cannot throw light on the administration of federal government’; and ‘discussion of government or politics at State or Territory level and even at local government level’. In Wotton v Queensland (2012) 285 ALR 1; 86 ALJR 246, the High Court held that public discussion of matters related to Aboriginal and Indigenous affairs, particularly interaction between Aboriginal persons and law enforcement, was a field of communication about the government or political matters.

Reasonable publication 23.76 Whether the publication was reasonable is determined in light of all of the circumstances of the case. In Lange at CLR 572; ALR 116, the court held that reasonableness ‘goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires’. The court also held that if the material published is false, it will not be considered to be reasonable unless the defendant can establish that they were unaware that the material was false and were not reckless in publishing the material. The court stated (at CLR 574; ALR 118): [A] defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation [of the defamatory material] to be untrue. Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond. [footnotes omitted]

Malice 23.77 As the defence is an extension of the common law defence of qualified privilege, the defence will fail if the defendant was motivated by malice. By malice, the High Court [page 596] in Lange was referring to some improper purpose not connected with communications of government or political information or ideas. The desire to gain a political advantage by itself is not to be regarded as improper, regardless of ‘the vigour of an attack or the pungency of a defamatory statement’: at CLR 574; ALR 118.

Fair Comment/Honest Opinion 23.78 The defence of fair comment developed under the common law allows an honestly held opinion or criticism to be expressed. In London Artists Ltd v Littler [1969] 2 QB 375 at 391, Lord Denning stated: Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.

This defence is an important one for the media as it allows comments and reviews to be published on a range of topics. The defence is justified on the right of freedom of speech in that every person has a right to express an opinion on matters of public interest: Kemsley v Foot [1951] 2 KB 34 at 46. The defamation legislation provides the defence of honest opinion which is very similar to the common law defence of fair comment.

Common law 23.79 In Cripps v Vakras [2014] VSC 279 at [344]–[351], Kyrou J stated the principles of the defence of fair comment: The imputation must be a comment, as opposed to a fact. The comment must relate to a matter of public interest. The comment must be based upon facts stated or referred to in the publication, or must be notorious. The facts upon which the comment is based must be true. The comment must be fair, that is, that of an honest person. 23.80 Comment based upon true facts The defence is available only for an expression of opinion and not statements of fact: Illawarra Newspapers v Butler [1981] 2 NSWLR 502; Radio 2 UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468. Under the common law, to be regarded as comment, the matter must be

presented as a matter of inference from, or opinion about, its subject: O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; Kemsley v Foot [1952] AC 345; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 167–8. 23.81 It is a question of fact whether a statement is one of fact or opinion: Bamberger v Mirror Newspapers Ltd (1969) 43 ALJR 242. The test is whether a reasonable person would understand the statement to be the defendant’s opinion: Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468 at [3]; Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 704. In O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166, [page 597] it was held that the publication (a review of a play production) went beyond opinion as the reasonable person could understand the review to be attributing an improper motive to the plaintiff. In Seafolly Pty Ltd (ACN 001 537 748) v Madden (2012) 297 ALR 337, the appellant argued that its press releases in response to the respondent’s claims that it had copied her swimwear designs were comment as they represented the views of the chief executive office of the appellant. The court disagreed, holding that the press releases did not manifest an intention to comment of the respondent’s allegations, but were statements of fact — that the respondent had acted maliciously with the intent of damaging the appellant’s commercial interests. 23.82 The facts upon which the opinion is based must appear in the publication or be ‘sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded’: Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 327; Channel Seven Adelaide Pty Ltd v Manock at [5], [47], [69].

23.83 Where an opinion is coupled with statements of fact upon which the opinion is based, the defendant must show that the ‘facts’ upon which the opinion was grounded were correct: Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; [1958] 1 WLR 743; Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259 at 302. Jordan CJ commented in Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 534: The question really is whether it can be regarded as fair to publish defamatory comments on defamatory statements of fact which, although true, it is unlawful to publish because it is not for the public benefit that they should be published. I am of the opinion that it cannot. It follows that in my opinion, in New South Wales, where the defamatory matter complained of, consists of both facts and comment the defence of fair comment is not, in principle, available as to the comment unless it can be established that the defamatory facts relied on as the basis for the comment, or some of them, were true, and that it was for the public benefit that they should be published.

An important reason for requiring proof of the truth of facts commented on was given by Lord Griffiths in Austin v Mirror Newspapers Ltd [1986] AC 299 at 317; 63 ALR 149 at 159: When a journalist wishes to make such a trenchant and potentially damaging attack it is in the interests of society that he should be expected to take all reasonable steps to ensure that he has got his facts right. The media has enormous power both for good and ill and it would be a sorry day if newspapers were encouraged to believe that under the shield of qualified privilege the reputations of individuals could be attacked by slipshod journalism that would provide no defence of comment because the facts on which the attack was based were not true.

23.84 Public interest The opinion requires that the comment be upon a matter of public interest. It is for the judge to decide whether a matter is of public interest: South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133. 23.85 To be of ‘public interest’ it must relate to a public role or activity: Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171. The fact that the person the subject of the comment is a public figure does not necessarily mean the defence will be able to be claimed. To fit within the defence, the public figure’s behaviour or character must affect the

[page 598] performance of their public duties. However, in John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [176], it was held that, if a person courts publicity, what would ordinarily be considered to be private conduct may be a matter of public interest. 23.86 A plaintiff who performs publicly invites comment. Therefore, authors, artists, musicians, singers and actors who display their work to the public may be commented on and criticisms of the work may fall within the defence of honest opinion: Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 173–4. 23.87 Fair The opinion must be ‘fair’ in the sense of honest, based upon the standard of the reasonable person: O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166; Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516; [1958] 1 WLR 743; Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, affirmed [1982] 1 NSWLR 498. In Channel 7 Adelaide Pty Ltd v Manock (2007) 241 ALR 468 at [3], per Gleeson CJ, the High Court held that ‘“fair” refers to the limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts’. 23.88 Comment will not be honest if the defendant was motivated by malice: Thomas v Bradbury, Agnew & Co Ltd [1906] 2 KB 627; Falcke v Herald and Weekly Times Ltd [1925] VLR 56; Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1. Malice may be established by proving that at the time of the publication the defendant did not honestly hold the opinion: French v Triple M Melbourne Pty Ltd [2008] VSC 553. 23.89 Malicious motive by itself may not establish that the comment was not fair, but may be evidence that the opinion was not honestly held: Branson

v Bower [2002] QB 737 at [8]. In Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 at 54, Blackburn CJ stated: If the plaintiff can show that the opinion presented by the comment was affected by personal hostility, or some such irrelevant motive, in such a way that it does not represent a disinterested judgment upon the matter which is the subject of the comment, then the reply of malice succeeds, notwithstanding that it is not proved that the comment was insincere — ie did not represent the defendant’s real opinion.

23.90 If a person is motivated by malice in the preparation of a publication, any party vicariously liable for the acts of that person will be unable to claim the defence of fair comment: Falcke v Herald & Weekly Times Ltd [1925] VLR 56. If the publisher makes it clear that views expressed in the publication are not their own and they do not adopt them, they may be able to claim the defence: Telnikoff v Matusevitch [1992] 2 AC 343.

Defamation legislation 23.91 Under the defamation legislation, the defence of honest opinion may be raised when: (a) the matter was an expression of opinion of the defendant rather than a statement of fact; and (b) the opinion related to a matter of public interest; and (c) the opinion is based on proper material.

[page 599] The legislation specifies three situations where honest opinion may be claimed: when the matter was an expression of opinion of the defendant; when the matter was an expression of opinion of an employee or agent of the defendant; and the matter was an expression of opinion of someone other than the

defendant or employee or agent of the defendant. See Civil Law (Wrongs) Act 2002 (ACT) s 139B; Defamation Act 2005 (NSW) s 31; Defamation Act 2006 (NT) s 28; Defamation Act 2005 (Qld) s 31; Defamation Act 2005 (SA) s 29; Defamation Act 2005 (Tas) s 31; Defamation Act 2005 (Vic) s 31; Defamation Act 2005 (WA) s 31. 23.92 Subsection (4) of the provisions state that the defence will fail if the opinion was not honestly held at the time of publication, and subs (5) specifies what is considered to be ‘proper material’, for example material that is substantially true or material published on an occasion of absolute or qualified privilege under the common law or the legislation.

Innocent Dissemination 23.93 The defence of innocent dissemination is an exception to the rule that every participant in the publication of defamatory material is liable for the defamation: see 22.79. The defence provides protection for innocent disseminators, that is, the persons who sell or distribute the publication containing the defamatory matter.

Common law 23.94 If a publisher can establish that they did not know the publication contained defamatory matter, through no negligence of their own, and that there was nothing to indicate the existence of defamatory matter, the defence of innocent dissemination may be relied on: McPhersons Ltd v Hickie (1995) Aust Torts Reports ¶81-348. Traditionally, the defence was only available to subsequent publishers; it was not available to the author, the printer or the main publisher. Changes in printing technology, under which printers may today have no knowledge of the content they publish, may require a reconsideration of the extension of innocent publication to such printers: McPhersons Ltd v Hickie. In Thompson

v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1, the same reasoning was argued by a television station that relayed a current affairs program produced by another station. The High Court held that there was no reason why a distributor of electronic material could not rely on the defence of innocent dissemination. However, the television station in the case before the court had the power to control and supervise the material it televised and was not merely a conduit; therefore, it was unable to rely on the defence of innocent dissemination. The Broadcasting Services Act 1992 (Cth) provides limited protection to internet service providers (ISPs) and internet content hosts (ICHs): Sch 5, cl 91. If the ISP or ICH becomes aware of the defamatory material, the material must be removed within a reasonable time, otherwise it will become a publisher. [page 600]

Defamation legislation 23.95 The defence of innocent dissemination in the defamation legislation would apply to the same scenarios as under the common law. The defamation legislation provides: (1) It is a defence to the publication of defamatory matter if the defendant proves that — (a) the defendant published the matter merely in the capacity, or as an employee or agent, of a subordinate distributor; and (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and (c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

See Civil Law (Wrongs) Act 2002 (ACT) s 139C; Defamation Act 2005 (NSW) s 32; Defamation Act 2006 (NT) s 29; Defamation Act 2005 (Qld) s 32; Defamation Act 2005 (SA) s 30; Defamation Act 2005 (Tas) s 32; Defamation Act 2005 (Vic) s 32; Defamation Act 2005 (WA) s 32.

‘Subordinate distributor’ is defined in subs (2) as the person who: (a) was not the first or primary distributor of the matter; and (b) was not the author or originator of the matter; and (c) did not have any capacity to exercise editorial control over the content of the matter (or over the publication of the matter) before it was first published.

Subsection (3) provides a non-exhaustive list of who is not a first or primary distributor: Without limiting subsection (2)(a), a person is not the first or primary distributor of matter merely because the person was involved in the publication of the matter in the capacity of — (a) a bookseller, newsagent or news-vendor; or (b) a librarian; or (c) a wholesaler or retailer of the matter; or (d) a provider of postal or similar services by means of which the matter is published; or (e) a broadcaster of a live programme (whether on television, radio or otherwise) containing the matter in circumstances in which the broadcaster has no effective control over the person who makes the statements that comprise the matter; or (f)

a provider of services consisting of — (i)

the processing, copying, distributing or selling of any electronic medium in or on which the matter is recorded; or

(ii) the operation of, or the provision of any equipment, system or service, by means of which the matter is retrieved, copied, distributed or made available in electronic form; or (g) an operator of, or a provider of access to, a communications system by means of which the matter is transmitted, or made available, by another person over whom the operator or provider has no effective control; or (h) a person who, on the instructions or at the direction of another person, prints or produces, reprints or reproduces or distributes the matter for or on behalf of that other person.

[page 601] 23.96 The defamation legislation expressly refers to the ‘author or originator of the matter’ as not being able to claim the defence and this is consistent with the common law approach. Under the defamation legislation,

a broadcaster of a live program is not a first or primary distributor and will not be liable if ‘the broadcaster has no effective control over the person who makes the statements that comprise the matter’: see subs (3)(e).

Triviality 23.97 Under the common law, in the Australian jurisdictions where there was a distinction between slander and libel, the absence of damage in an action for slander meant that the action would fail: see 22.15. Under the defamation legislation, there is now no distinction between libel and slander, but the legislation provides the defence of triviality: It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

See Civil Law (Wrongs) Act 2002 (ACT) s 139D; Defamation Act 2005 (NSW) s 33; Defamation Act 2006 (NT) s 30; Defamation Act 2005 (Qld) s 33; Defamation Act 2005 (SA) s 31; Defamation Act 2005 (Tas) s 33; Defamation Act 2005 (Vic) s 33; Defamation Act 2005 (WA) s 33. In Szanto v Melville [2011] VSC 574 at [157], the following was noted about the defence of triviality under the defamation legislation: [I]n order to sustain the defence, the defendant must prove that the circumstances were such that the plaintiff was unlikely to suffer “any” harm. Such an onus is, self-evidently, a high onus. Secondly, the defendant must prove that, such were the circumstances of the publication, that the plaintiff was “unlikely” to sustain any harm. In Jones v Sutton [(2004) 61 NSWLR 614 at 624–5], Beasley JA (with whom Santow JA and Stein AJA agreed) held that the phrase “not likely to cause harm” refers to “the absence of a real chance” or the “absence of a real possibility” of harm. [footnotes omitted]

23.98 In deciding whether the defamation is trivial, a court will consider whether the imputation within the context of the whole publication is unlikely to cause the plaintiff any harm. Factors such as the nature of the defamatory matter, the manner of publication, the audience to whom it was published and the place of publication are all relevant: Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800. See also Cuncliffe v Woods

[2012] VSC 254 (letter published to a confined audience, aware of the truth and recipients did not think any less of the plaintiff). 23.99 The defence is similar to that of the now repealed s 13 of the Defamation Act 1974 (NSW) and s 126 of the Civil Law (Wrongs) Act 2002 (ACT) (partially repealed). The Queensland and Tasmanian Codes also contained a similar defence; however, it was limited to ‘any case other than that of words intended to be read’: Defamation Act 1889 (Qld) s 20 (repealed); Defamation Act 1957 (Tas) s 9(2) (repealed).

Consent 23.100 Similar to other areas of the law of torts, consent by the plaintiff to what has occurred may act as a bar to what, otherwise, would have been an actionable tort. [page 602] Consequently, consent by the plaintiff to the publication is a complete defence: Cookson v Harewood [1932] 2 KB 478. Whether there was consent to the publication of the defamatory imputation is a question of fact. 23.101 The consent may be express or implied, but consent to one form of publication does not imply consent to another: Chapman v Ellesmere [1932] 2 KB 431. Consent will not necessarily be implied from a request by the plaintiff that the person to whom the matter was previously published be present for a republication: Misson v McOwan [1906] VLR 280; (1906) 12 ALR 478. See also Orr v Isles [1965] NSWR 677 at 694. In Ettingshausen v Australian Consolidated Press Ltd (NSWSC, Hunt J, 11 March 1993, unreported), the defence of consent was considered. In that case, the plaintiff’s photograph had been published and it showed him in a

defamatory light: see Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443. The photograph had been taken by an official photographer travelling with the plaintiff’s football team. The defendant argued that the plaintiff had consented to the photograph as he knew that pictures would be taken on the tour for a book to be published. Hunt J held that the defence had not been established as there was no evidence that the plaintiff had consented to the defamatory imputation. His Honour stated (at 11): The defence of consent must establish … that the plaintiff had consented to the act being done towards him of which he now complains. The first of the acts of which he complains is that the photograph was published in a context which conveyed the imputation that he had consented to its publication showing his penis. It is his consent to that act which the defendant must establish. Any implied consent by the plaintiff to the reproduction of the photograph in a publication with a widespread readership was not a consent to the publication of everything which the photograph may show. There is nothing in the evidence to suggest that his consent went so far.

Acceptance of Offer to Make Amends 23.102 The defamation legislation has put in place a process for the resolution of defamation disputes without litigation, one of the objects of the legislation: Civil Law (Wrongs) Act 2002 (ACT) s 115(d); Defamation Act 2005 (NSW) s 3(d); Defamation Act 2006 (NT) s 2(d); Defamation Act 2005 (Qld) s 3(d); Defamation Act 2005 (SA) s 3(d); Defamation Act 2005 (Tas) s 3(d); Defamation Act 2005 (Vic) s 3(d); Defamation Act 2005 (WA) s 3(d). A defendant may make to the plaintiff an offer to make amends. The offer must: be in writing; specify what defamatory imputations the offer relates to; offer to publish a reasonable correction; offer payment of reasonable expenses incurred by the plaintiff prior to the offer; and include other methods of redress, for example the payment of compensation for economic and non-economic loss.

See Civil Law (Wrongs) Act 2002 (ACT) Div 9.3.1; Defamation Act 2005 (NSW) Pt 3 Div 1; Defamation Act 2006 (NT) Pt 3 Div 1; Defamation Act 2005 (Qld) Pt 3 Div 1; Defamation Act 2005 (SA) Pt 3 Div 1; Defamation Act 2005 (Tas) Pt 3 Div 1; Defamation Act 2005 (Vic) Pt 3 Div 1; Defamation Act 2005 (WA) Pt 3 Div 1. [page 603] 23.103 If the plaintiff accepts the offer to make amends and the terms of the offer are carried out by the defendant, the plaintiff cannot maintain an action in defamation in respect of the publication: Civil Law (Wrongs) Act 2002 (ACT) s 129; Defamation Act 2005 (NSW) s 17; Defamation Act 2006 (NT) s 16; Defamation Act 2005 (Qld) s 17; Defamation Act 2005 (SA) s 17; Defamation Act 2005 (Tas) s 17; Defamation Act 2005 (Vic) s 17; Defamation Act 2005 (WA) s 17.

3

Remedies

23.104 The primary remedies for the publication of defamatory matter are an injunction, used to prevent publication or stop republication, and damages. It is not possible at common law, nor under the defamation legislation, to force a publisher to retract a statement or to apologise, although an offer of, or the making of, an apology, is admissible in evidence in mitigation of damages: see 23.131.

Injunction 23.105 A plaintiff may seek an injunction to prevent the initial publication or the republication of defamatory matter. Injunctions to enjoin threatened publications of defamatory matter are only granted in the clearest cases. This

is because of the regard accorded to preservation of freedom of speech: see Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 205; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457. 23.106 If a plaintiff wishes to prevent the initial publication or continuing publication until the defamation action is heard by the court, they must seek an interlocutory injunction. The court will only grant an interlocutory injunction in the clearest of cases when the matter is clearly defamatory and if published would cause significant harm to the plaintiff: Stocker v McElhinney (No 2) [1961] NSWR 1043 at 1048; (1961) 79 WN (NSW) 541; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 158. 23.107 In the decision of Church of Scientology of California Inc v Readers Digest Services Pty Ltd [1980] 1 NSWLR 344 at 349, Hunt J stated: I accept as the settled law that the power to grant interlocutory injunctions in defamation cases must be exercised with great caution, and only in very clear cases. A plaintiff must establish that a subsequent finding by a jury that the matter complained of was not defamatory of him would be set aside as unreasonable; that there is no real ground for supposing that the defendant may succeed upon any defence of justification, privilege or comment, and that he, the plaintiff, is likely to recover more than nominal damages only. In particular, questions of privilege and malice are not normally appropriate to be decided upon an interlocutory application. Nor will an injunction go which will have the effect of restraining the discussion in the press of matters of public interest or concern.

See also Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 205. No injunction will be granted by a court if it is a matter of public interest, unless publication would be contempt of court: Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344 at 350, 352 per Hunt J; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 at 163–4. [page 604] 23.108

In Australian Broadcasting Corporation v O’Neill (2006) 227 CLR

57; 229 ALR 457, the respondent was granted an interlocutory injunction by the Supreme Court of Tasmania to prevent the appellant from broadcasting a documentary, The Fisherman, about the respondent, a convicted murderer. The alleged defamatory matters were imputations that the respondent was involved in the disappearance of three children on Australia Day 1966. The respondent had been convicted of the murder of a nine-year-old boy in November 1975, after signing a confession. In this defamation case, the appellant was unsuccessful on its appeal and then appealed to the High Court. The majority of the High Court held that there was a strong case against the granting of the interlocutory injunction. Gleeson CJ and Crennan J held that, when granting an interlocutory injunction, a court must take into account the significance of the value of freedom of speech and the possibility that, if publication took place and involved an actionable defamation, only nominal damages might be awarded. The respondent was a convicted murderer, serving a life sentence and had confessed to another murder. To say he had also committed other murders (that is, of the three children) would not attract substantial damages. 23.109 A defendant may give evidence of a defence at the hearing for the interlocutory injunction. The defence does not have to be proven, but there must be sufficient evidence to satisfy the court that the defence has some prospect of success: Shiel v Transmedia Productions Pty Ltd [1987] 1 Qd R 199 at 206–7. 23.110 If the defamatory matter has been published, an interlocutory injunction may be sought to prevent its republication: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; 229 ALR 457. 23.111 It is possible for the court to grant a permanent injunction at trial if there is the possibility of republication.

Damages

23.112 As with other torts, the primary remedy for defamation is damages. Damages are awarded ‘at large’ which means not only proven pecuniary losses may be compensated. A plaintiff may be awarded: damages for non-economic loss; and damages for economic loss resulting from the defamatory publication. 23.113 The defamation legislation prohibits the award of exemplary damages: Civil Law (Wrongs) Act 2002 (ACT) s 139H; Defamation Act 2005 (NSW) s 37; Defamation Act 2006 (NT) s 34; Defamation Act 2005 (Qld) s 37; Defamation Act 2005 (SA) s 35; Defamation Act 2005 (Tas) s 37; Defamation Act 2005 (Vic) s 37; Defamation Act 2005 (WA) s 37. 23.114 The state of the defendant’s mind at the time of publication, including any malice, is irrelevant to the assessment of damages, except to the extent it affects the harm sustained by the plaintiff: Civil Law (Wrongs) Act 2002 (ACT) s 139G; Defamation Act 2005 (NSW) s 36; Defamation Act 2006 (NT) s 33; Defamation Act 2005 (Qld) s 36; Defamation Act 2005 [page 605] (SA) s 34; Defamation Act 2005 (Tas) s 36; Defamation Act 2005 (Vic) s 36; Defamation Act 2005 (WA) s 36.

Non-economic loss 23.115 Claims for non-economic damages are for injury to the plaintiff’s reputation, injured feelings, indignation, fear and the psychological need for satisfaction: Mirror Newspaper Ltd v Jools (1985) 65 ALR 174. The difficulties in assessing damages were highlighted in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150, where Windeyer J stated: When it is said that in an action for defamation damages are given for an injury to the plaintiff’s reputation, what is meant? A man’s reputation, his good name, the estimation in which he is

held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways-as a vindication of the plaintiff to the public and as consolation to him for a wrong done.

23.116 In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 60; 113 ALR 577 at 588–9, the High Court identified three objectives that an award of damages for defamation seeks to achieve: 1.

consolation for the personal distress and hurt to the plaintiff by the publication;

2.

reparation for the harm done to the plaintiff’s personal and professional reputation; and

3.

vindication of the plaintiff’s reputation.

23.117 As to how to assess damages for defamation to achieve these objectives, there are no clear guidelines. In the defamation legislation there is the general direction that a court must ‘ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded’: Civil Law (Wrongs) Act 2002 (ACT) s 139E; Defamation Act 2005 (NSW) s 34; Defamation Act 2006 (NT) s 31; Defamation Act 2005 (Qld) s 34; Defamation Act 2005 (SA) s 32; Defamation Act 2005 (Tas) s 34; Defamation Act 2005 (Vic) s 34; Defamation Act 2005 (WA) s 34. In Prendergast v Roberts [2012] QSC 144 at [38], it was stated: The harm sustained by the plaintiff for the purpose of s 34 of the Act must cover all the components of the award for compensatory damages and relevantly incorporates the hurt and distress caused to the plaintiff by the defamation and the need for vindication, in addition to the harm to the plaintiff’s reputation.

23.118 The harm that is the consequence of publication of the defamatory matter is assessed to take into account the consequences up until the conclusion of the litigation: Herald & Weekly Times Ltd v McGregor (1928) 41

CLR 254 at 263; Humphries v TWT Ltd (1993) 120 ALR 693 at 706; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [75]–[76]; Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70 at [26]–[27]. [page 606] 23.119 Damages for any non-economic loss are capped under the defamation legislation. The maximum amount is revised each year on 1 July and this is published in the Gazette. The statutory cap applies even if there are multiple causes of action: Davis v Nationwide News Pty Ltd [2008] NSWSC 693. See also Dank v Whittaker [2014] NSWSC 732. See Civil Law (Wrongs) Act 2002 (ACT) s 139F; Defamation Act 2005 (NSW) 35; Defamation Act 2006 (NT) s 32; Defamation Act 2005 (Qld) s 35; Defamation Act 2005 (SA) s 33; Defamation Act 2005 (Tas) s 35; Defamation Act 2005 (Vic) s 35; Defamation Act 2005 (WA) s 35. 23.120 Aggravated damages for personal distress A court may award damages for non-economic loss in excess of the maximum amount allowed for non-economic loss, if satisfied that the circumstances of the publication warrant an award of aggravated damages: Civil Law (Wrongs) Act 2002 (ACT) s 139F(2); Defamation Act 2005 (NSW) s 35(2); Defamation Act 2006 (NT) s 32(2); Defamation Act 2005 (Qld) s 35(2); Defamation Act 2005 (SA) s 33(2); Defamation Act 2005 (Tas) s 35(2); Defamation Act 2005 (Vic) s 35(2); Defamation Act 2005 (WA) s 35(2). Aggravated damages are relevant is there is a ‘lack of bona fides in the defendant’s conduct or it is improper or unjustifiable’: Triggell v Pheeney (1951) 82 CLR 497 at 514. 23.121 Claims for aggravated damages must be particularly pleaded: Singleton v John Fairfax & Sons Ltd [1983] 2 NSWLR 722. The award of damages may take into account ‘the plaintiff ‘s injured feelings, including the

hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff’: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71; 113 ALR 577 at 597 (footnote omitted); Dingle v Associated Newspapers Ltd [1964] AC 371; [1962] 3 WLR 229. 23.122 A court may take into account the distress caused to the plaintiff by the litigation and any trial (Humphries v TWT Ltd (1993) 120 ALR 693 at 706), any lack of apology by the defendant and the defendant’s persistence in arguing the defence of justification: Clark v Ainsworth (1996) 40 NSWLR 463 at 468. See also Duffy v Google Inc (No 2) [2015] SASC 206. 23.123 If a defendant persists with the defence of justification when it cannot be justified in the circumstances, aggravated damages may be awarded as the persistence may lead to an increase in the extent of publication or the effect upon those to whom the defamatory material was published. In Coyne v Citizen Finance Ltd (1991) 172 CLR 211; 99 ALR 252, Toohey J (Dawson and McHugh JJ concurring) applying Triggell v Pheeney (1951) 82 CLR 497 at 514, confirmed that persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. 23.124 In Australian Consolidated Press Pty Ltd v Ettingshausen (NSWCA, Gleeson CJ, Kirby P and Clarke JA, 13 October 1993, unreported), the New South Wales Court of Appeal held that the continued assertion that the respondent had consented to the publication justified an award of aggravated damages. Kirby P stated (at 21): [page 607] There is equally no doubt that Mr Ettingshausen was entitled to claim aggravated damages for the repeated assertion, unproved, that he had given consent to the publication of the photograph which he clearly had not. His case was constructed thus. A naked photograph showing the penis of a well known figure would not normally be carried in an Australian publication without the consent of that person. Therefore, ordinary reasonable readers of the appellant’s publication

would infer, contrary to the fact, that Mr Ettingshausen had given his consent. From that, they would infer that he was a person given to exposing (i.e, showing) his penis in public. The evidence of Mr Ettingshausen (which was clearly accepted by the jury) disclosed him to be a rather modest and private man with a discreet family life which he wished to keep to himself. As it was put during evidence, his penis was something between him and his wife. A photograph showing it was not to be published without his consent (although with his apparent consent) in a popular magazine. Such a publication might titillate readers. It might promote the appellant’s profits. But it humiliated and embarrassed Mr Ettingshausen and damaged his reputation.

In Manefield v Association of Quality Child Care Centres of NSW (t/as Child Care NSW) [2010] NSWSC 1420 at [198], the court stated: To justify an award of aggravated damages, the aggravating conduct of the defendant must be improper, unjustifiable, or lacking in bona fides (Triggell v Pheeney (1951) 82 CLR 497). Such conduct justifies an increase in the damages awarded. The damages are compensatory in nature. The misconduct must have caused additional harm to the plaintiff. Sometimes the harm will be in the nature of an increase in the emotional distress caused to the plaintiff by the publication. It may, in addition, enlarge the reputational damage suffered. See also Forrest v Chlanda [2012] NTSC 14, where the court took note of the fact that the defendant refused to withdraw the publication from the website; a second article did not amount to an apology but was a ‘grudging admission’ that they had made a mistake and they published their defence to the proceedings on the website claiming there would be further evidence of the plaintiff’s fraud. This continuing conduct aggravated the plaintiff’s damage.

23.125 A corporation permitted by the defamation legislation to sue in defamation (an excluded corporation: see 22.84) cannot be awarded aggravated damages: Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259 at 333: Lewis v Daily Telegraph Ltd [1964] AC 234 at 262 per Lord Reid. 23.126 Reputation It is assumed by the law that upon the publication of defamatory matter, the plaintiff ‘s reputation is injured: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR; 38 ALR 417. Therefore, it is not necessary for the plaintiff to provide evidence of their good reputation; however, evidence may be provided, especially if there is a particularly adverse effect in a particular group of society: Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports ¶80-691; Wishart v Mirror Newspapers Ltd [1964] NSWR 231; Reader’s

Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; 38 ALR 417 (impact of defamation upon respondent’s reputation among journalists); Manefield v Association of Quality Child Care Centres of NSW (t/as Child Care NSW) [2010] NSWSC 1420 (publication to 650 members of an association in the child care industry in which the appellant worked). [page 608] 23.127 Although the presumption that a plaintiff ‘s reputation is damaged cannot be rebutted (Bristow v Adams [2010] NSWCA 166 at [29]), evidence of a plaintiff ‘s bad reputation is admissible in the mitigation of damages: see 23.134. 23.128 Vindication Assessing damages to vindicate a plaintiff ‘s reputation requires a monetary value to be placed on the plaintiff ‘s reputation. In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184 at [69], Hayne J stated: Two of the three purposes served by an award of damages for defamation are to provide consolation to the person defamed for the personal distress and hurt which has been done, and reparation for the harm done to that person’s reputation. Necessarily, then, the amount awarded for defamation should reflect the effect which the particular defamation had on the individual plaintiff. It follows that the drawing of direct comparisons between particular cases is apt to mislead, just as the drawing of direct comparisons in personal injury cases can also mislead. Comparison assumes that there is sufficient identity between the effect which each defamation had on the particular plaintiff, whereas in fact circumstances alter cases. The amount allowed in each case should reflect the subjective effect of the defamation on the plaintiff (Australian Iron and Steel Ltd v Greenwood (1962) 107 CLR 308 at 325).

23.129 The extent of the publication of the defamatory material will be relevant to the assessment. In McLean v David Syme & Co Ltd (1970) 92 WN (NSW) 611, it was taken into account that the newspaper article had been published in Victoria but also circulated in New South Wales. An early withdrawal of the defamatory statement will ordinarily serve to reduce the

harm suffered by the plaintiff; but persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it.

Economic loss 23.130 If the defamation has caused any pecuniary loss to the plaintiff, such loss may be compensated if the loss is the direct and natural consequence of the defamation. Examples of possible claims include: costs incurred by the plaintiff to minimise the damage caused by the defamation (Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259); loss of business (Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225; Sydney Refractive Eye Surgery Centre Pty Ltd v Beaumont [2004] NSWSC 164); and injury to health: Mirror Newspapers Ltd v Jools (1985) 65 ALR 174 (court allowed damages for psychiatric treatment as plaintiff suffered depression as a result of the publication).

Mitigation 23.131 Under the common law a defendant may adduce evidence to mitigate their damages. This may include evidence of an apology and the plaintiff’s general bad reputation. 23.132 Apology If the defendant publishes an apology or correction, this is characterised as going towards repairing the plaintiff’s reputation: Turner v News Group Newspapers Ltd [2006] 1 WLR 3469. If a defendant seeks to mitigate their damages by an apology, it must [page 609] be of the same prominence as the defamatory matter: Fairbairn v John Fairfax & Sons Ltd (1977) 21 ACTR 1. See also Lemaire v Smith’s Newspaper Ltd

(1927) 28 SR (NSW) 161; Bodenstein v Hope Street Urban Compassion [2014] NSWDC 126. 23.133 The defamation legislation provides that an apology is not evidence of an admission of liability in proceedings: Civil Law (Wrongs) Act 2002 (ACT) s 132; Defamation Act 2005 (NSW) s 20; Defamation Act 2006 (NT) s 19; Defamation Act 2005 (Qld) s 20; Defamation Act 2005 (SA) s 20; Defamation Act 2005 (Tas) s 20; Defamation Act 2005 (Vic) s 20; Defamation Act 2005 (WA) s 20. 23.134 Plaintiff’s reputation If the plaintiff is claiming non-economic loss for injury to reputation, the defendant may give evidence of the plaintiff’s general lack of good reputation (something that is presumed by the law) in mitigation of damages. In Hobbs v Tinling [1929] 1 KB 1 at 17, Lord Scrutton stated: … a defendant may reduce the damages for libel by proving that the plaintiff had already a bad reputation. To do this the jury must take the view that his reputation is so bad that the defamatory statement complained of would reasonably and ordinarily cause much less damage than would be caused to a man of good reputation by the same statement. They may conceivably take the view that his reputation was so bad before the defamatory statement was published that no further defamatory allegation could make it worse. But they would have to consider, before taking such a view, the undoubted fact that the worse a man’s character is the more ready are people to believe such reports about him, and to face the question whether it is lawful or desirable that because a man’s character is bad any one should be at liberty to make any defamatory statements they liked about him, regardless of their untruth.

In O’Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89, the imputation conveyed in the defamatory newspaper article was that the plaintiff, a detective senior sergeant, had arranged to have someone murdered for $10,000. The plaintiff’s case was conducted on the basis of good reputation as a police officer. The defendant argued that the plaintiff’s reputation was such that he had no reputation to lose. The evidence relied upon by the defendant was that the plaintiff had pleaded guilty to charges of misconduct. The evidence was held to be relevant as it related to the plaintiff’s

conduct as a police officer. See also Plato Films v Speidel [1961] AC 1090; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232. 23.135 To argue that there is little or no damage to the plaintiff’s reputation due to their existing bad reputation, the defamatory matter must be referable to that aspect of the plaintiff’s reputation and have spread knowledge of that bad reputation. As explained in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 800–1: If the respondent’s reputation were one of the relevant circumstances of the publication …, the learned trial judge would have been entitled to direct the jury that they could consider whether the respondent was likely to suffer harm by the spreading of knowledge of her bad reputation, and also that, although she had a bad reputation, that bad reputation was not to be regarded as covering all aspects of her character, and that a reputation for promiscuity is different from a reputation for dishonesty.

See also Hobbs v CT Tinling & Co Ltd [1929] 2 KB 1 at 46, where Greer LJ stated: [page 610] … a man with a damaged character is entitled to have his damaged character protected, and if newspapers for their own purposes falsely allege that he has been guilty of crimes and misconduct the jury might well consider that even a man of bad character ought not to have his character made out to be blacker than the proved facts warrant.

23.136 Court rules in many of the Australian jurisdictions establish rules as to giving evidence of a plaintiff’s character: Uniform Civil Procedure Rules 2005 (NSW) Pt 15 r 21(2); Supreme Court Rules (NT) O 40.10; Supreme Court Rules (SA) O 78.03; Supreme Court Rules (Vic) O 40 r 10; Supreme Court Rules (WA) O 34 r 6. 23.137 Defamation legislation As under the common law, the defamation legislation allows evidence in mitigation damages. The legislation provides:

(1) Evidence is admissible on behalf of the defendant, in mitigation of damages for the publication of defamatory matter, that — (a) the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or (b) the defendant has published a correction of the defamatory matter; or (c) the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or (d) the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or (e) the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter. (2) Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages.

See Civil Law (Wrongs) Act 2002 (ACT) s 139I; Defamation Act 2005 (NSW) s 38; Defamation Act 2006 (NT) s 35; Defamation Act 2005 (Qld) s 38; Defamation Act 2005 (SA) s 36; Defamation Act 2005 (Tas) s 38; Defamation Act 2005 (Vic) s 38; Defamation Act 2005 (WA) s 38.

Appeal of damages awarded 23.138 Before the defamation legislation, juries determined the amount of damages to be awarded as guided by the judge. Courts were reluctant to overturn an assessment of damages by a jury on appeal unless the decision was perverse, extreme or unreasonable: Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184. In Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 215–16; 99 ALR 252 at 254, Mason CJ and Deane J held: In such cases, the question for the appellate court is whether the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case. If the appellate court is of the view that that question should be answered in the affirmative, there can be no question of reluctance to intervene. The proper performance

[page 611] by the appellate court of the functions entrusted to it will require that it intervene to prevent miscarriage of justice. It is true that the somewhat unprincipled common law rules relating to the nature and limits of defamation damages may, in cases in those jurisdictions where exemplary or punitive damages are still available, make the task of the appellate court in reviewing a jury’s award an unusually difficult one. The reason for the difficulty is that the interaction of sometimes competing notions of compensation, vindication, retribution and even deterrence may give rise to a wide variety of possible components of the jury’s overall award. Even in such cases, the inability to identify specific components will not absolve the appellate court of the responsibility of determining whether the overall award is within the limits of what could reasonably be regarded as appropriate in the circumstances of the particular case. However, the present case involved no such extraordinary difficulty since, as will be seen, the jury were required to determine only the appropriate amount of damages to compensate the plaintiff for the injury to his reputation.

23.139 In Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; 201 ALR 184, the appellant was defamed in an article published by the respondent on the front page of its newspaper. The article reported a Federal Court decision that held that the interest awarded as part of the damages in a medical negligence case, Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625, was to be assessed as income. The article stated that the recipient of the damages had been ‘blinded by a surgeon’s negligence’. The appellant, who was the surgeon, was awarded $250,000 in damages by the trial judge but, on appeal to the New South Wales Court of Appeal, it was held that the award was manifestly excessive. The appellant appealed to the High Court. The High Court allowed the appeal, holding that the Court of Appeal had no convincing reasons for finding that the award of damages of $250,000 was manifestly excessive. Hayne J held (at [80]): It was open to the trial judge to conclude that the respondent’s defamation of the appellant had a serious effect upon him. He had already suffered the inevitable emotional cost of the trial and appeals in the proceedings brought against him by Mrs Whitaker. That action had culminated in his being held to have been negligent in not advising Mrs Whitaker of the risks associated with the procedure he advised her to undergo. Yet through that litigation his skill as a surgeon emerged unchallenged. Now, some years after that chapter of his professional life appeared to have been closed, the respondent published words which conveyed the imputation that he had

conducted the surgery on Mrs Whitaker without reasonable care. It was well open to the trial judge to conclude that the effect of that publication on this appellant was very large. An award of $250,000 in those circumstances was not outside the range of damages that could properly be awarded.

In Cerutti v Crestside Pty Ltd [2014] QCA 33 at [55], after noting the advantages a trial judge possesses over an appellate court in assessing the evidence of a plaintiff’s hurt feelings, Applegarth J stated: Manifestly inadequate or manifestly excessive awards undermine the interests protected by the law of defamation. Inadequate awards place too small a value on reputation and other interests that the law of defamation protects. The level of damages should reflect the high value the law places upon reputation and, in particular, upon the reputation of those whose work and life depend upon their honesty and integrity (Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [74]) Very low awards of damages may provide an inadequate incentive for a wronged plaintiff

[page 612] to take on the risks and costs of potentially complex and protracted litigation. They may not deter careless, reckless or malicious communications which harm individuals and businesses. Excessive awards of damages have the potential to act as a brake on freedom of speech and encourage unnecessary self-censorship, notwithstanding the availability of defences designed to protect legitimate communications made without malice.

23.140 The court determines the damages to be awarded, even if the plaintiff or defendant has elected for the proceedings to be tried by jury in those jurisdictions that allow trial by jury: Defamation Act 2005 (NSW) s 22(3); Defamation Act 2005 (Qld) s 22(3); Defamation Act 2005 (Tas) s 22(3); Defamation Act 2005 (Vic) s 22(3); Defamation Act 2005 (WA) s 22(3). However, a decision as to the amount of damages awarded for defamation may still be appealed. For the appeal to be successful, the Appeal Court has to find that the overturning of the assessment is required in order to avoid a miscarriage of justice: Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 215; 99 ALR 252 at 254.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 19. P George, Defamation Law in Australia, 2nd ed, LexisNexis Butterworths, Sydney, 2012.

[page 613]

Chapter 24 Interference with Business Interests 1

Introduction

24.1 A number of torts are available to prevent interference with business and trading interests, for example deceit (see Chapter 19) and actions for loss of services: see Chapter 17. In this chapter, the following torts, often referred to as the ‘economic torts’, are considered: passing off; interference with contractual relations; conspiracy; intimidation; and injurious falsehood. 24.2 It has also been suggested that there may be a single, more general, tort of unlawful interference with trade or business interests.1 In Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211, Brooking J stated that it was not his place as a judge sitting at first instance to consider whether a tort of unlawful interference with trade or business existed and that it was a matter for the High Court to determine: at VR 667–7; ALR 244. In Northern Territory v Mengel (1995) 185 CLR 307 at 342–3; 129 ALR 1 at 15, the joint judgment of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ noted: More recent developments in the United Kingdom suggest the emergence in that country of a tort of interference with trade or business interests by an unlawful act directed at the person injured, although not necessarily done for the purpose of injuring his or her interests. It seems

to be accepted that this embryonic or emerging tort does not extend to all unlawful acts and that, at least in that regard, it is in need of further definition. [footnotes omitted]

24.3 However, the High Court has not yet recognised the tort in Australia. For example, in Sanders v Snell (1998) 196 CLR 329; 157 ALR 491 at [30], the court stated that it was not ‘necessary to decide in this case whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia’. The tort has been recognised in the United Kingdom in the decision of OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545. [page 614] 24.4 Since the decision of Sanders v Snell (1998) 196 CLR 329; 157 ALR 491, the ‘emerging’ tort has been raised in Australia, but the lower courts have declined to take the step to recognise the tort: Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 at [425]–[430]; Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117; Scott v Pedler (2003) 74 ALD 424; [2003] FCA 650 at [78] (affirmed Scott v Pedler (2004) 80 ALD 283; [2004] FCAFC 67 at [71]). 24.5 However, in Canberra Data Centres Pty Ltd v Vibe Constructions (ACT) Pty Ltd (2010) 173 ACTR 33 at [140], Refshauge J stated: Despite the reserve expressed by the High Court [in Sanders v Snell], I do not consider that on an application such as this, I should prevent [the plaintiff] from arguing its case that such a tort does exist in Australia. There are, indeed, strong statements in Australian courts recognising it. It was accepted by Brooking J in Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211 (at VR 667–8; ALR 254–5), relying in part on what McLelland J said in Copyright Agency Ltd v Haines [1982] 1 NSWLR 182; 40 ALR 264 (at NSWLR 193–4; ALR 273–4) and Else-Mitchell J in Sid Ross Agency Pty Ltd v Actors and Announcers Equity Assn [1970] 2 NSWR 47 (at 52). All these cases were, of course, decided before Sanders. Indeed, Brooking J observed, “[w]hat the law is in Australia on this subject must await the authoritative determination of the High Court, but my duty is to apply the law as laid down by the House of Lords”. That may now have changed since the High Court has begun to address the matter, but not by refusing to recognise such a claim.

His Honour held that the pleadings should be in accordance with the principles as stated by the House of Lords in OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545, which in the case before him were not. However, see the cautious reasons outlined in Hardie Finance Corporation Pty Ltd v Ahern (No 3) [2010] WASC 403 at [705]–[719], as to whether to apply the decision of OBG Ltd v Allan. In that case, Pritchard J concluded (at [720]): Despite the force of the concerns to which I have referred above in relation to the recognition in Australia of the unlawful means tort, as explained in OBG, I am persuaded that the unlawful means tort should now be accepted as part of the Australian common law.

Despite this, no superior court has recognised the tort, and more recent statements indicate that the tort is not part of Australian law: see Donaldson v Natural Springs Australia Ltd [2015] FCA 498 at [213].

2

Passing Off

24.6 Passing off is the closest nominate tort to the more general basis of tort liability known, in some overseas jurisdictions, as ‘unfair competition’.2 The tort involves one person passing off its goods or services as being, or as being associated with, those of another: Willard King Organisation Pty Ltd v United Telecasters Sydney Ltd [1981] 2 NSWLR 547; [page 615] Knight v Beyond Properties Pty Ltd (2007) 71 IPR 466 at [15]. Passing off may also be regarded as a special class of misrepresentation (A G Spalding & Bros v A W Gamage Ltd (1915) 84 LJ Ch 449; (1918) 35 RPC 101) and is related to the tort of deceit: Willard King Organisation Pty Ltd v United Telecasters Sydney Ltd. The tort of passing off is the inverse of the tort of injurious falsehood in that, while the latter involves a denigration of the plaintiff’s

goods, the former involves the defendant usurping the reputation and goodwill associated with the plaintiff’s goods. 24.7 In Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491 at 499; 1 All ER 873 at 880, Lord Oliver said: The law of passing off can be summarised in one short general proposition — no man may pass off his goods as those of another. More specifically, it may be expressed in terms of the elements which the plaintiff in such an action has to prove in order to succeed. These are three in number. First, he must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by association with the identifying ‘getup’ (whether it consists simply of a brand name or a trade description, or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff’s goods or services. Second, he must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the plaintiff. Whether the public is aware of the plaintiff’s identity as the manufacturer or supplier of the goods or services is immaterial, as long as they are identified with a particular source which is in fact the plaintiff. For example, if the public is accustomed to rely upon a particular brand name in purchasing goods of a particular description, it matters not at all that there is little or no public awareness of the identity of the proprietor of the brand name. Third, he must demonstrate that he suffers or, in a quia timet action, that he is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the plaintiff.

See also Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 at 742. In ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at 340; 106 ALR 465 at 502, the Federal Court of Australia explained the tort: On examination of the relevant authorities it becomes clear that the basis of the cause of action lies squarely in misrepresentation, for its underlying rationale is to prevent commercial dishonesty. The tort of passing off protects the business of the plaintiff with its many facets: its assets, goodwill and reputation. It stops persons and companies gaining a commercial advantage through wrongfully taking the attributes of another’s business if it causes or is likely to cause that other person’s business some damage.

24.8

To establish an action in tort for passing off, a plaintiff must establish:

that they have a reputation that may be protected; the defendant made a false representation that was calculated to

deceive; and damage: Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491; 1 All ER 873; Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 at 369. [page 616]

Reputation 24.9 The tort of passing off protects the reputation or goodwill of the plaintiff’s business, reputation and goodwill being synonymous in Australia: ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465. In Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1 at [35], the Full Federal Court stated: The tort of passing off is designed to protect the property and goodwill of a business. It is only available where an applicant can show goodwill or reputation in relation to the name or get-up of his or her goods or services because they have become distinctive of his goods or services in a particular market. An applicant will succeed where he or she can show that a potential customer is likely to be misled into believing that the respondents’ goods are goods of the applicant or are somehow associated with the applicant: see Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR 387 at 393.

See also Orange Crush (Australia) Ltd v Gartrell (1928) 41 CLR 282 at 292. 24.10 The plaintiff must prove that it has a reputation within the jurisdiction in which the alleged passing off takes place: ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465. This may be established, for example, through evidence of the history of the product, its marketing and volume of sales if relevant. However, it is not necessary that the plaintiff have a place of business in the jurisdiction, as ‘[i]t is sufficient if his goods have a reputation in this country among persons here, whether residents or otherwise, of a sufficient degree to establish that there is a likelihood of deception among consumers and potential consumers and of

damage to his reputation’: ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at 344; 106 ALR 465 at 506. In Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1, although the appellant’s product was not sold in Australia, it established that it was using indirect advertising to create a presence in Australia through sponsorship and logos on clothing. Finkelstein J stated (at [63]–[64]): There are a plethora of examples of indirect advertising and it is a key topic of discussion in advertising literature. Indirect advertising of the kind with which everyone is familiar is the sponsorship of sports. Many people in many countries place great value upon entertainment, competition and accomplishment, all of which are seen in the sporting arena. Brand names and logos appear around sporting arenas, on the clothing worn by sportsmen and women and on the equipment sportsmen and women use. This form of advertising is seen by many thousands of fans who attend sporting events and, in the case of popular sports, by hundreds of thousands of people if the event is broadcast on television. There are numerous studies that show that this type of indirect advertisement is far more effective at eliciting a consumer recall response than a direct television commercial. In my opinion the judge was entitled to infer that the indirect brand advertising employed by Hansen (and, for that matter, Bickfords) can establish reputation as well as, if not better than, direct advertising. After all, everyone knows that James Bond drives an Aston Martin, Janis Joplin wanted to own a Mercedes Benz and Audrey Hepburn had breakfast at Tiffany’s.

In Knott Investments Pty Ltd v Winnebago Industries Inc (2013) 211 FCR 449; (2013) 299 ALR 74, the court held that although the Winnebago was not sold in Australia, Australian [page 617] tourists using recreational vehicles in the United States and the United Kingdom where it was sold, and people in the industry, would have been aware of Winnebago. This was sufficient, in the view of the Full Federal Court, to establish a reputation of Winnebago in Australia: at [38]. It is not necessary that the consumers know the name of the plaintiff’s business or goods as long as it can be proven that the business or goods possess a distinctive reputation: Deckers Outdoor Corporation Inc v Farley

(No 5) (2009) 262 ALR 53 at [39]. See also Hoath v Connect Internet Services Pty Ltd (2006) 229 ALR 566 at [77]. The goodwill of a business may continue after the business has ceased operation: Hoath v Connect Internet Services Pty Ltd.

False Representation Calculated to Deceive Representation 24.11 The essential feature of a passing off action is a false representation by the defendant that its goods are connected or associated with the plaintiff’s business or goods: Henderson v Radio Corporation Pty Ltd [1969] RPC 218; Royal Automobile Association of South Australia (Inc) v Hancock [1939] SASR 60; Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340. 24.12 The representation may be conveyed in a variety of forms. The action is not anchored to a trademark or trade name, but encompasses visual images and slogans: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR 387 (use of the colour purple). In Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639, the appellant was successful in establishing that its coffee plungers with their distinctive shape could be protected in a passing off action. The court held that not only did the appellant have a reputation attached to the name, Bodum, it had a secondary reputation attached to the shape of its coffee plungers. 24.13 The plaintiff and defendant need not share a common field of activity, that is, they need not be rivals in trade or business: Henderson v Radio Corporation Pty Ltd [1969] RPC 218; Hutchence v South Sea Bubble Co Pty Ltd (1986) 64 ALR 330. In Irvine v Talksport Ltd [2002] 2 All ER 414; 1 WLR 2355, the plaintiff’s image was used without authorisation by the defendant to advertise its broadcast of the Formula One Grand Prix World Championship. The plaintiff was a well-known racing car driver. The court held that it was not necessary in an action of passing off that the parties

shared a common field or that sales would be diminished. The plaintiff had a substantial reputation and the use of his image would lead to the assumption that he was endorsing the defendant’s coverage of the Championship. See also Campomar Sociedad, Limitada v Nike International Ltd (2000) 169 ALR 677 (marketing of fragrance in Australia called ‘Nike Sport Fragrance’ by Spanish cosmetic and toiletries corporation).

Intention 24.14 Although the phrase ‘calculated to deceive’ implies that there must be an intent on the part of the defendant to create an association with the plaintiff’s goods or business, no such intention is required: Millington v Fox (1838) 3 My & Cr 338; 40 ER 956; A G Spalding [page 618] & Bros v A W Gamage Ltd (1915) 84 LJ Ch 449; (1918) 35 RPC 101; ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465; Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354; [2002] FCAFC 157 at [62]; Complete Technology Integrations Pty Ltd v Green Energy Management Solutions Pty Ltd [2011] FCA 1319 at [67]. In Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 at [213], it was noted: … there is no requirement that there be an actual, subjective intention to mislead. Nevertheless, proof of deliberate borrowing of the features or get-up of a rival’s product provides “evidential value” as discussed in Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 … by Dixon and McTiernan JJ in the well known passage at 657 which, in part, is in these terms: The rule that if a mark or get-up for goods is adopted for the purpose of appropriating part of the trade or reputation of a rival, it should be presumed to be fitted for the purpose and therefore likely to deceive or confuse, no doubt, is as just in principle as it is wholesome in tendency. In a question how possible or prospective buyers will be impressed by a given picture, word or appearance, the instinct and judgment of traders is not to be likely rejected …

It has been held that if a subjective intention to deceive is established, in borderline cases, such intention will be evidence that the consumer was deceived or misled: see Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 at 657. The intent or lack of intent of the defendant will be relevant when considering remedies for the passing off (see 24.28). 24.15 It is sufficient if the deception is the reasonably foreseeable consequence of the representation: Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 at 742.

Deceived 24.16 The plaintiff must prove that the defendant’s false representation has led consumers to believe that the goods are those of the plaintiff or are connected with the plaintiff. An objective test is adopted; the question is the understanding of a reasonable member of the class of the relevant consumers: Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45; 169 ALR 677 at [105]. 24.17 Mere confusion or uncertainty is not sufficient. In Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586, the appellant was the author of three books, in which a group of people who investigated the paranormal called themselves ‘Mythbusters’. The respondent produced a television series called ‘Mythbusters’ in which science experiments were used to explore common misconceptions and myths. The appellant alleged that the use of the name ‘Mythbusters’ wrongly suggested that the series was associated with his books and his own plan to develop a television series based on his books. The court agreed with the trial judge, that a reasonable person may think that the television series is connected to the books, but watching the series would dispel any confusion. The court held (at [60]): The distinction between confusion or self-generated misapprehension is an important one, because, without more, mere confusion or misapprehension does not suffice to … supply the essential ingredient of the tort of passing off, because it is to be regarded as commercially

irrelevant or insignificant: see [ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at 381; 106 ALR 465 at 534 per French J and Lumley Life Ltd v IOOF of Victoria Friendly Society (1990) 16 IPR 316 at 324 per Lockhart J].

[page 619] 24.18 The passing off must have been calculated to deceive the public or a substantial section of the public, such as potential purchasers: Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 WLR 277. It is not necessary to show that anyone was actually misled: Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 at [214]; Nutrientwater Pty Ltd v Baco Pty Ltd (2010) 265 ALR 140 at [78]–[83]. 24.19 The test is the likely impression on the casual and unwary customer of the goods in question: Bollinger v Costa Brava Wine Co Ltd; Singer Manufacturing Co v Loog (1882) 8 App Cas 15; Plomien Fuel Economiser Co Ltd v National School of Salesmanship Ltd (1943) 60 RPC 209. In Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1, one of the issues was whether a substantial or significant portion of persons within the target market had been misled. In that case, the target market was males between the ages of 18 and 30 involved in extreme sports, a narrower field than the relevant market, that is, young males: at [59].

Damage 24.20 As the plaintiff must establish that they had a reputation and that there was a false representation, it is presumed that there is resulting damage. The damage that results from the tort may be in a variety of forms. For example, the damage may be a decrease in sales, a lost opportunity or it may be the damage to the plaintiff’s business reputation. There must be a likelihood of the plaintiff’s business being adversely affected by the

defendant’s passing off of the goods or services as its own: Childrens Television Workshop Inc v Woolworths (NSW) Ltd [1981] 1 NSWLR 273. In Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262 ALR 53, the respondents were involved in the manufacture and marketing of counterfeit ‘Ugg Australia’ boots. Tracey J stated (at [57]): The third element needed to make out the tort of passing-off is that an applicant must suffer damage as a result of a respondent’s conduct. In the present case there can be no doubt that damage has been inflicted on Deckers. That damage occurred as a result of loss of sales and the undermining of the confidence of consumers in the Deckers products because of the poor quality of the counterfeit footwear manufactured and distributed by [the respondent] and others.

See also Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 at 451, where it was held that the damage from the unauthorised use of a celebrity’s image (see 24.25) ‘diminished the opportunity to commercially exploit his name, image and reputation’.

Examples of Passing Off 24.21 In Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR 387 at 393, it was stated: The width of the principle now authoritatively recognised by the High Court of Australia and the House of Lords is, therefore, such that the tort is no longer anchored, as in its early nineteenth century formulation, to the name or trade mark of a product or business. It is wide enough to encompass other descriptive material, such as slogans or visual images, which radio, television or newspaper advertising campaigns can lead the market to associate with a plaintiff’s product, provided always that such descriptive material has become part of the goodwill of the product. And the test is whether the product has derived from the advertising a distinctive character which the market recognises.

[page 620]

Representation that defendant’s goods are associated with the plaintiff

24.22 This usually involves a claim by a vendor that the goods are actually made by the plaintiff or are associated with the plaintiff’s goods: Lord Byron v Johnston (1816) 2 Mer 29; 35 ER 851 — Lord Byron’s name attributed to a bad poem; Illustrated Newspapers Ltd v Publicity Services (London) Ltd [1938] 1 Ch 414 — the defendants inserted supplement of advertising material into plaintiff’s magazines without consent; Bollinger v Costa Brava Wine Co Ltd (No 2) [1961] 1 WLR 277 — Spanish champagne; Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 34 IPR 225 — Australian breweries manufactured and sold ‘Duff Beer’ to make use of the goodwill associated with the television series The Simpsons (see 24.27); and Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262 ALR 53 — counterfeit Ugg boots called ‘Ugg Australia’.

Defendant markets goods with similar or same name 24.23 If the defendant’s goods or business have the same or a similar name, it is arguable that this will mislead the consumer if the parties are in the same field: ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302; 106 ALR 465 — the respondent manufactured and sold frozen meals in Australia using same name, ‘Healthy Choice’, as appellant did in the United States; Targetts Pty Ltd v Target Australia Pty Ltd (1993) 26 IPR 51 — the respondent opened store in Launceston called ‘Target’ and appellant had operated clothing and shoe business called ‘Targetts’ for many years in that city; Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1 — the respondent manufactured and sold energy drink called ‘Monster

Energy’ in Australia and appellant sold ‘Monster Drink’ in the United States; Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 — the appellant retailed women’s clothing under the ‘FIRST’ label and respondent launched its label ‘First Menswear’; Hannah Louis Group Pty Ltd t/as Maxum Transport v Maxum Taxi Trucks Pty Ltd [2011] NSWSC 291 — plaintiff trading as ‘Maxum Transport’, defendant trading as ‘Maxum Taxi Trucks’; Madison Constructions Pty Ltd v Empire Building Group (ACT) Pty Ltd [2012] FCA 381 — the appellant and respondent both property developers. Respondent developed residential home unit project called ‘Madison Gardens’. Appellant’s business was named Madison Construction Pty Ltd and had constructed a home unit complex called ‘Madison Square’ and other projects using the name or branding of ‘The Gardens’; and Bob Jane Corp Pty Ltd v ACN 149 801 141 Pty Ltd (2013) 97 ACSR 127 — the applicant and respondent were both in tyre business. Applicant used the name ‘Bob Jane’ in its business and the respondent also adopted ‘Bob Jane’ and variations in its. By using [page 621] the marks, the respondent represented to the public that its goods and services were those of the applicants.

Similar descriptive material 24.24 This includes the use of slogans or visual images which the plaintiff’s advertising campaigns have led the market to associate with the plaintiff’s product:

Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; 239 ALR 662 — the appellant claimed that the respondent’s use of a shade of purple in connection with its chocolate confectionary business would mislead consumers into thinking that the respondent’s products were the appellant’s or there was a connection between the two businesses. It was held that although the colour purple was associated with the appellant’s products, the wellknown name of the company would prevent the public from being misled. Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd (1980) 32 ALR 387 — the appellant manufactured and marketed a lemon drink, ‘Solo’, aimed at the market of ‘rugged masculine adventurers’, and the marketing campaign was to evoke memories of hotels and bars of the past. The respondent started to manufacture and market a man’s drink, ‘Pub Squash’, with a similar targeted audience and in cans the same size and colour as the appellant’s product. The Privy Council agreed with the trial judge’s decision that there was no passing off as the intention of the respondent was not to pass off its product as the appellant’s, but to take advantage of the appellant’s development of a market for lemon squash drinks. Reckitt & Colman Products Ltd v Borden Inc [1990] 1 WLR 491; [1990] 1 All ER 873 — the respondent had sold its product, concentrated lemon juice, in a lemon-shaped yellow bottle in the United Kingdom since 1956. The appellant, an American business, started selling its lemon juice in the United Kingdom in regular bottles but then started to sell the product in a lemon-shaped bottle. The House of Lords held that the public identified not only that the lemon-shaped bottles contained lemon juice, but also that it was the respondent’s product. Fernwood Fitness Centre Pty Ltd v Today’s Woman Health and Fitness Pty Ltd (1998) 41 IPR 78 — the applicant used the slogan ‘Today’s Woman’ in relation to its female fitness centres. Respondent named its

fitness centre ‘Today’s Woman’ and had a similar logo, and the fittings and fixtures of the centre were similar in colour scheme and design to the applicant’s. It was held that the slogan was not used by the applicant in any way to identify their business, but used to identify its audience. The slogan, décor, fixtures and fittings were not distinctive of the applicant’s business. R & C Products Pty Ltd t/as Samuel Taylor v S C Johnson & Sons Pty Ltd (1993) 113 ALR 487 — the applicant manufactured an insect repellent, ‘Mortein’, with the slogan ‘When you are on to a good thing, stick to it’ and had an advertising campaign featuring John Laws, a well-known media personality. The respondent manufactured an insect repellent, ‘Raid’, and threatened to advertise using John Laws with the slogan ‘So when you find a better thing, switch to it’. The court held that the adoption [page 622] of advertising concepts by the respondent would mislead a significant number of the public as those advertising concepts were identified by the public as related to the applicant’s product. Coca Cola Co v PepsiCo Inc (No 2) (2014) 322 ALR 505; 109 IPR 429 — the applicant and respondent manufactured and sold beverages. The applicant sued in passing off, alleging that the respondent was misleading consumers by using a similar shaped contour bottle. The action failed as it was held that although some consumers may make their purchase selection based on the shape of the bottle, there were noticeable differences between the bottles, and a consumer would also have regard to the word mark and other branding on the bottles. There was no evidence that the bottle shape indicated to consumers the origin of the beverage.

Celebrity endorsement and character merchandising 24.25 In Henderson v Radio Corporation Pty Ltd [1969] RPC 218, the defendant producer and distributor of gramophone records manufactured and sold a record of ballroom dance music and used a photograph of the Hendersons, who were well-known professional ballroom dancers, for the cover. The Full Court held (at 285): … the wrongful appropriation of another’s professional or business reputation is an injury in itself, no less, in our opinion, than the appropriation of his goods or money. The professional recommendation of the respondents was and still is theirs, to withhold or bestow at will, but the appellant has wrongfully deprived them of their right to do so and of the payment or reward on which, if they had been minded to give their approval to the appellant’s record, they could have insisted. In our opinion, it is idle to contend that this wrongful appropriation is not an injury to the respondents. It is as much an injury as if the appellant had paid the respondents for their recommendation and then robbed them of the money. That injury, and the acknowledged intention to continue to inflict it, are ample justification for the injunction which was granted.

In Sony Music Australia Ltd v Tansing (t/as Apple House Music) (1993) 27 IPR 649 at 653–4, it was noted: The right of publicity, as it is called, has been described as the inherent right of every human being to control the commercial use of his or her identity … Certainly it has not been held to be part of the law of Australia at this stage of this country’s development.

24.26 However, the tort of passing off has developed to protect a person from having their name or image used in an unauthorised endorsement: see comments of the High Court in Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414 at 445; 56 ALR 193 at 214. In Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444, an image of Kieren Perkins, a wellknown sporting celebrity, and accompanying text about his achievements, were used without consent in an advertisement supplement in a newspaper. At the time, the respondent was seeking to advertise itself as the choice for long-distance and international calls for telephone users in Australia. The Court of Appeal held that ‘the publication misrepresented that Mr Perkins was sponsored by [the respondent], had consented to its use of his name, image and reputation

in its advertising, and supported it in the forthcoming “pre-selection” process’: at 451. See also Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14 (character dressed as ‘Mick Dundee’ from films held to be passing off); Honey v Australian Airlines Ltd (1990) 18 IPR 185; [page 623] Wickham v Associated Pool Builders Pty Ltd (1988) 12 IPR 567. Note the warning in 10th Cantanae Pty Ltd v Shoshana Pty Ltd (1987) 79 ALR 299 at 306: … passing off is not necessarily constituted by the mere authorised use of someone’s name or picture or the name or picture of a well-known fictitious character, in an advertisement.

In that case, the appellant’s advertisements depicted a woman watching a television with a video recorder and the slogan ‘Sue Smith just took total control of her video recorder’. The respondent was a media personality, named Sue Smith. The court held that the reference to Sue Smith did not mislead the public into thinking that the respondent endorsed the appellant’s product. Wilcox J stated (at 303): In the present case, there was nothing more than the bare name. The advertisement contained no information pointing unequivocally to Ms Smith. There was no relevant context. The two names “Sue” and “Smith” are common enough, whether considered separately or as a combination. The only additional material was a picture of the “Sue Smith” referred to in the advertisement. But, because it was a picture of a person dissimilar in appearance to the second respondent, it pointed the other way.

Contrast the English decision of Fenty v Arcadia Group Brands Ltd t/as Topshop [2015] 1 WLR 3291; All ER 157. The singer Rihanna’s image was used without permission on a t-shirt sold by Topshop. The court held that although just the use of the image was not a passing off, the fact that Topshop had a previous well-advertised relationship with the singer (competitions and

a visit to Topshop by the singer), amounted to a representation that Rihanna endorsed the sale of the t-shirts. 24.27 Character merchandising and passing off were considered in Twentieth Century Fox Film Corporation v South Australian Brewing Co Ltd (1996) 34 IPR 225. In that case, the opposition was to use of the name ‘Duff Beer’, a fictional beer featured in the television series, The Simpsons. Although consumers would not think that the producers of the series produced the beer, they would believe that the respondent breweries had been sanctioned or allowed to manufacture the ‘Duff Beer’. The evidence was that the producers of The Simpsons always refused any licence in relation to alcohol or other products that could be harmful to children. The court held that an action in passing off had been established: There has been a misrepresentation as to the association of the goods with “The Simpsons”, made by breweries in the course of trade, to prospective customers or ultimate consumers. It is reasonably foreseeable that the business or goodwill of “The Simpsons” and their licensing and merchandising rights could be adversely affected, particularly in the light of the policy in relation to alcohol promotion. If the product is permitted to be marketed it will probably cause actual damage to the producers. There will be loss of licensing fees. … I consider that the producers have made out their case in relation to passing off: at 246.

See also Childrens Television Workshop Inc v Woolworths (NSW) Ltd [1981] 1 NSWLR 273 (inferior soft toys of characters of children’s television show, Sesame Street).

Defences 24.28 It is a good defence that the plaintiff consented to the misrepresentation or that the trade name alleged to have been passed off is already commonly used: Liebig’s Extract of [page 624]

Meat Co Ltd v Hanbury (1867) 17 LT (NS) 298. There is no action for passing off if, instead of passing off goods as the plaintiff’s, the defendant claims an attribute for his or her own goods which is, in fact, an attribute of the plaintiff’s goods; for example, that a textbook is the one prescribed for a particular course: Cambridge University Press v University Tutorial Press (1928) 45 RPC 335. 24.29 The action does not extend to cases of inverse passing off where a defendant appropriates the product of another’s labour and misrepresents it as the defendant’s own without giving any credit: Lever Bros Ltd v Bedingfield (1899) 16 RPC 3. Here, there may be an action for breach of copyright or conversion, but it is not passing off.

Remedies 24.30 Common law damages for passing off are at large: Draper v Trist (1939) 56 RPC 429; [1939] 3 All ER 513. This means that, in addition to compensatory damages for commercial loss, a plaintiff may recover compensation for loss of goodwill and damage to reputation: A G Spalding & Bros v A W Gamage Ltd (1915) 84 LJ Ch 449; (1918) 35 RPC 101. 24.31 A plaintiff may elect to pursue the equitable remedy of account as an alternative to recover any profits made by the defendant. An injunction may be obtained where there has been positive injury or a reasonable probability of injury, for example to business or goodwill: B M Auto Sales Pty Ltd v Budget Rent a Car System Pty Ltd (1976) 12 ALR 363. Although, at common law, no property in any name or word is recognised, it is possible, through business operations, to acquire reputation for a name associated with a particular product which may be protected by the grant of an injunction: Tavener Rutledge Ltd v Trexapalm Ltd [1977] RPC 275. 24.32

Exemplary damages may be claimed if the defendant’s conduct

warrants it, for example the defendant intentionally misled the consumer or persisted with the conduct when given notice of being in breach: Flamingo Park Pty Ltd v Dolly Dolly Creations Pty Ltd (1986) 65 ALR 500 at 526; 6 IPR 431 at 456–7; Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262 ALR 53; 83 IPR at [98]; Facton Ltd v Rifai Fashions Pty Ltd (2012) 287 ALR 199. 24.33 A quia timet injunction may be granted for threatened damage: Associated Newspapers plc v Insert Media Ltd [1991] 1 WLR 571. It should be remembered, however, that the equitable remedies are discretionary and such matters as public interest may be considered in the exercise of the discretion: Miller v Jackson [1977] QB 966. In Henderson v Radio Corporation Pty Ltd [1969] RPC 218 at 284, Evatt CJ and Myers J reminded that: Passing off is a wrong and is actionable at law. In such an action damage is presumed on proof of passing off and, therefore, a nominal sum by way of damages follows as a matter of course. General damages may, however, only be awarded if there is evidence of damage. Instead of proceeding at law a plaintiff may sue in equity for an injunction, as may be done in respect of other wrongful acts of a different nature. If he sues in equity, he takes advantage of the equitable principle that the court will interfere by injunction to restrain irreparable injury to property: per Romer LJ in Samuelson v Producers Distributing Co Ltd (1931) 48 RPC 580 at 593; [1931] 1 All

[page 625] ER 74 at 82, and therefore he must go further than he need at law. He must show irreparable injury, that is that he has suffered injury which cannot be properly compensated by damages, or that he will probably suffer such injury.

In Hogan v Koala Dundee Pty Ltd [1988] 83 ALR 187, Paul Hogan, as cowriter of the movie Crocodile Dundee, assigned merchandising rights associated with the character. The defendant sold Australiana souvenirs, some of which were strongly reminiscent of Mick Dundee, the fictional movie character. An injunction was sought and granted, the court holding that

passing off may be brought in respect of an image or name not connected with any business carried on by that person.

Legislation 24.34 The tort of passing off has, to a large extent, been overtaken by actions for misleading and deceptive conduct pursuant to s 18 of the Australian Consumer Law (previously s 52 of the Trade Practice Act 1974 (Cth)): Competition and Consumer Act 2010 (Cth) Sch 2. Section 18 states: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

24.35 The differences between the statutory action and the common law action of passing off are: A statutory action under s 18 requires that the defendant’s conduct must have occurred in ‘trade or commerce’. However, ‘trade or commerce’ has been interpreted broadly. In a s 18 action, it must be established that there is a likelihood of a consumer being misled or deceived; it is not necessary to prove that anyone was in fact misled or deceived. Therefore, a plaintiff need not prove that the false representation would deceive a substantial or significant number of consumers as required by the passing off action, only that a reasonable person within the class of consumers would be deceived. In .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521 at [25], Finkelstein J stated that there was: … no warrant for imposing a requirement that in a “representation to the public” case significant members of the public must be misled by the impugned conduct before there can be a contravention of [s 18]. First, [s 18] does not prescribe this requirement. Second, there is no reason in principle why the requirement should exist. Third, it would be strange if a court were to determine that certain conduct had the capacity to mislead (and did in fact mislead a handful of people) but nevertheless held that the conduct was not actionable because an insufficient number of people were misled.

Section 18 does not require proof of any particular reputation, whereas for passing off the action will fail if the plaintiff cannot prove a reputation at the time of the alleged interference. See Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; 239 ALR 662 at [98]–[99]; Hansen Beverage Co v Bickfords (Australia) Pty Ltd (2008) 251 ALR 1 at [44]. A breach of s 18 does not require proof of damage, but as in passing off actions there is a presumption that damage is suffered, this distinction is not particularly significant. [page 626] The action of passing off is to protect the property and goodwill of a plaintiff’s business, but s 18 is for the protection of consumers: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397; 239 ALR 662. A plaintiff may be awarded exemplary or aggravated damages if successful in a passing off action, but such damages are not available for a breach of s 18. 24.36 It is common for a plaintiff to plead passing off and a breach of s 18 in the alternative, and as the two actions have substantial overlap, they are often dealt with together: see, for example, Deckers Outdoor Corporation Inc v Farley (No 5) (2009) 262 ALR 53 at [36]. In that case the applicant claimed in passing off and for misleading or deceptive conduct. In considering the statutory action, Tracey J stated (at [45]): … it is necessary for the court to assess whether the conduct of [the respondent] was likely to mislead potential customers, whether they be astute or gullible, intelligent or lacking in intelligence, well educated or poorly educated: .au Domain Administration Ltd v Domain Names Australia Pty Ltd (2004) 207 ALR 521; 61 IPR 81; [2004] FCA 424 at [15]. It is not necessary for [the applicant] to establish that anyone was actually misled or deceived: see Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198; 42 ALR 1 at 6; 1A IPR 684 at

688. Conduct is likely to mislead or deceive if, on an objective assessment, there is a real and not remote possibility that it will do so. It is not necessary for an applicant to establish that the degree of likelihood exceeds 50%: see Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87; 55 ALR 25 at 29–30.

24.37 The law of intellectual property also provides protection through legislation. For example, a registered trade mark is protected by s 120 of the Trade Marks Act 1995 (Cth) which creates an infringement if a person uses ‘as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered’. The tort of passing off protects the reputation attached to a trade mark, which then gives some protection to the trade mark itself.3 Section 230 of that Act provides that the law of passing off is not affected, except that no damages may be awarded if the defendant was unaware that the trade mark was in use and when they did become aware they immediately ceased to use the trade mark. An action in passing off may also support an infringement of the Copyright Act 1968 (Cth).

3

Interference with Contractual Relations

24.38 At common law, an action on the case lies against a person who induces another to break a contract or otherwise interferes with a contract with the plaintiff: Lumley v Gye (1853) 2 El & Bl 216; 118 ER 749; Williams v Hursey (1959) 103 CLR 30; Greig v Insole [1978] 1 WLR 302; 3 All ER 449. Lumley v Gye concerned the enticement of the then famous Miss Wagner away from her contractual obligations to perform exclusively in the plaintiff’s theatre, by the defendant lessee of another theatre. In the words of Wightman J (at 757): [page 627]

It was undoubtedly prima facie an unlawful act on the part of Miss Wagner to break her contract, and therefore a tortious act of the defendant maliciously to procure her to do so; and, if damage to the plaintiff followed in consequence of that tortious act of the defendant, it would seem, upon the authority of the two cases referred to, of Green v Button ((1835) 2 CM & R 707) and Winsmore v Greenbank ([(1745)] Willes, 577), as well as upon general principle, that an action on the case is maintainable.

24.39 Although the tort derived originally from a master’s right of action for interferences to his or her proprietary interest in his or her servant’s services, it now extends to breaches of more general kinds of contracts: Quinn v Leathem [1901] AC 495; Greig v Insole (which involved World Series Cricket); News Ltd v Australian Rugby Football League Ltd (1996) 58 FCR 447; 135 ALR 33. 24.40 In order to establish an action for interference with contractual relations, the plaintiff must establish the following elements: a valid existing contract; defendant had knowledge of the contract; intention; wrongful or unlawful interference; interference with performance of contract; and damage. See Daebo Shipping Co Ltd v Ship Go Star (2012) 294 ALR 635 at [88].

Contract 24.41 The contract allegedly interfered with must be valid and enforceable: News Ltd v Australian Rugby Football League Ltd (1996) 58 FCR 447; 135 ALR 33. Interferences with contracts which are void are not actionable: British Motor Trade Association v Gray [1951] SC 586. It is unclear whether a contract which is merely voidable will support an action, although there is authority, and good reason, that it will not: Doust v Godbehear (1925) 28 WALR 59; see also Greig v Insole [1978] 1 WLR 302; 3 All ER 449.

24.42 There is authority for the proposition that an interference with precontractual negotiations which results in the contract not being entered into at all is actionable: Quinn v Leathem [1901] AC 495; James v Commonwealth (1939) 62 CLR 339; Gershman v Manitoba Vegetable Producers’ Marketing Board (1977) 69 DLR (3d) 114.

Knowledge of the Contract 24.43 It must be shown that the defendant knew of the contractual relationship. Isaacs J in Short v City Bank of Sydney (1912) 15 CLR 148 at 160 held: … the defendant must have induced or procured the doing of what he knew would be a breach of contract. A bona fide belief reasonably entertained that it was not a breach of contract would be fatal to the claim. If the defendant did not know of the existence of the contract, he could not induce its breach; … if he believed on reasonable grounds that the contract had been rescinded … when in fact it had not, he could not be said to knowingly procure its breach.

[page 628] In Woolley v Dunford (1972) 3 SASR 243 at 270, it was stated that the question was ‘whether the defendant had sufficient knowledge of the contract to know that he was hindering or preventing its performance’. See also DC Thomson & Co Ltd v Deakin [1952] Ch 646; Independent Oil Industries Ltd v Shell Co of Australia Ltd (1937) 37 SR (NSW) 394 at 414–15. In Sai Teys McMahon Real Estate Pty Ltd v Queen Street Apartments Pty Ltd [2007] QSC 264, the defendant tried to argue that it believed that the contract with the plaintiff had been legally terminated. The evidence, however, established that the defendant ‘did not honestly believe and had no reasonable grounds for believing’ that the plaintiff’s contract had been terminated previously: at [135]. See also Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473.

24.44 It is sufficient if common sense would lead to the drawing of the inference of the existence of a contract: J T Stratford & Sons Ltd v Lindley [1965] AC 269. Knowledge of the precise terms of the contract is not necessary: Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691; [1966] 1 All ER 1013; Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 at [441]. 24.45 Where the defendant is a corporation, it is sufficient that its officers or employees knew of the contract, even if they are no longer employed by the corporation: Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473.

Intention 24.46 In Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 at [440], it was stated that there ‘is no doubt that intention is a necessary element’ and in Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 130 ALR 469 at 484, Lindgren J held that the ‘gravamen of the tort is the defendant’s intention to induce or procure the breach in the knowledge that such a breach will interfere with the plaintiff’s contractual rights’. 24.47 Proof of malice is not necessary: Quinn v Leathem [1901] AC 495; South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239 at 250. However, it must be shown that the defendant intended to interfere with the contractual relationship: Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691; [1966] 1 All ER 1013. 24.48 While negligent conduct will not be sufficient, reckless or indifferent conduct may be: Daily Mirror Newspapers Ltd v Gardner [1968] 2 QB 762; Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1995) 130 ALR 469; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473 at [171]; Orica Investments Pty Ltd v McCartney [2007] NSWSC 645 at [330];

Daebo Shipping Company Ltd v The Ship Go Star (2012) 207 FCR 220 at [89]; Donaldson v Natural Springs Australia Ltd [2015] FCA 498 at [207]. The fact that the breach of contract is the reasonably foreseeable result of the conduct does not amount to intention: OBG Ltd v Allan [2008] 1 AC 1; [2007] 4 All ER 545 at [42]–[43]; LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 at [52]. [page 629] 24.49 It is irrelevant that the primary motive was the promotion of the defendant’s own interests: Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147; Lonrho v Fayed [1989] 3 WLR 631; Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157.

Interference 24.50 The interference with the contract may be direct or indirect: see Greig v Insole [1978] 1 WLR 302; 3 All ER 449; Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 at [451].

Direct 24.51 The interference is committed by direct means when a party to a contract is directly persuaded to breach the contract (Lumley v Gye (1853) 2 El & Bl 216; 118 ER 749) or where the property or person of another is directly interfered with in such a way as to prevent performance of the contract: GWK Ltd v Dunlop Rubber Co Ltd (1926) 42 TLR 376; British Motor Trade Association v Salvardori [1949] Ch 556. In Fortron Automotive Treatments Pty Ltd v Jones (No 3) [2011] FMCA 467 at [135], it was explained: Direct interference may be brought about by words (persuasion or procurement) or by deeds

(disabling the person with whom the applicant has contracted from continuing with performance of the contract).

24.52 Advice that leads to a breach of contract is not necessarily actionable. For example, advice that does not amount to persuasion would not be the basis for an action. In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Corke Instrument Engineering (Australia) Pty Ltd; Siemens Ltd v CEPU (2005) 223 ALR 480 at [19], Finkelstein J noted that the cases made: … a distinction between “procuring” or “inducing” which is said to be unlawful, and “advice” which is said not to be unlawful. The prevailing view is that to induce a breach of contract means to create a reason for breaking it; to advise a breach of contract is to point out the reasons that already exist. The former is actionable while the latter is not: see generally South Wales Miners’ Federation v Glamorgan Coal Co Ltd [1905] AC 239; DC Thomson & Co Ltd v Deakin [1952] Ch 646 at 686; [1952] 2 All ER 361 at 373.

Indirect 24.53 The interference is indirect when the defendant persuades a third party to bring about the breach of contract. If the interference is indirect, the act of the defendant must be unlawful, which may be a crime or a tort, for example if the defendant threatens the third party to either act or refrain from acting, in order to procure a breach of the plaintiff’s contract: D C Thomson Ltd v Deakin [1952] 1 Ch 646; J T Stratford & Sons Ltd v Lindley [1965] AC 269.

Breach of Contract 24.54 The wrongful or unlawful interference carried out with the intention of procuring a breach must, in fact, result in breach of contract or, at least, interfere with the performance of the contract: Allen v Flood [1898] AC 1; Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106 [page 630]

at 137–8; Woolley v Dunford (1972) 3 SASR 243 at 268. Under the extension of the tort to interference with pre-contractual negotiations referred to above at 24.36, termination of the pre-contractual negotiations would be sufficient to satisfy this element. See also Qantas Airways Ltd v Transport Workers’ Union of Australia (2011) 280 ALR 503 at [445].

Damage 24.55 The breach of contract must result in damage to the plaintiff: Jones Bros (Hunstanton) Ltd v Stevens [1955] 1 QB 275. In Traffic Calming Australia Pty Ltd v CTS Creative Traffic Solutions Pty Ltd [2015] VSC 741, the court noted that the damage to the plaintiff was the loss of profits and the cost of having the breach of contract investigated. Damage may be inferred: Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147. In Greig v Insole [1978] 1 WLR 302; [1978] 3 All ER 449, the court held that there must be an apprehension of the likelihood of damage, which must be more than nominal.

Defences 24.56 The defence of justification may be raised in relation to an interference with contractual relations: Quinn v Leathem [1901] AC 495 at 510. The defence does not encompass inducing the breach of contract to further the defendant’s own interests: Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211. 24.57 The High Court considered the defence of justification in relation to interference with contractual relations in Zhu v Treasurer of New South Wales (2004) 218 CLR 530; 211 ALR 159. In Zhu, the plaintiff had entered into a contract with TOC Management Services Pty Ltd (TOC) to market the Sydney Olympic Games in China. It

subsequently became evident that the terms of the contract between the plaintiff and TOC were contrary to the terms of the Sydney 2000 Games (Indicia and Images) Protection Act 1996 (Cth). The defendant, the Sydney Organising Committee for the Olympic Games (SOCOG), therefore convinced TOC to terminate its contract with the plaintiff. The plaintiff sued SOCOG for interference with contract and was successful at first instance, being awarded damages of $4,234,319, including $95,000 in aggravated damages and $200,000 in exemplary damages. The defendant successfully appealed to the New South Wales Court of Appeal on the basis that it had a defence of justification. The High Court, in a joint judgment, held that the defence of justification was not made out because SOCOG’s conduct did not meet the criteria for the defence of justification. These criteria require that the defendant had a superior legal right which justified, or made lawful, the interference with the contractual rights of the plaintiff. This superior right may be conferred by statute or be some other form of superior legal right. Self-interest is not sufficient, nor is it sufficient that the defendant’s contractual rights were created earlier in time or are equal to the plaintiff’s rights under the contract. The court did leave open the question, however, of whether the defendant’s superior right could be created at a later point in time than the plaintiff’s contractual rights. [page 631] The High Court also held that, even where the defendant’s rights are superior, the interference must, nevertheless, still be ‘reasonably necessary’ to protect those rights. This is consistent with the general principle that courts prefer their own curial processes. In the present case, there was no reason why the defendant could not, for example, have sought an injunction to enforce the rights it claimed justified its interference with the plaintiff’s contractual rights.

Remedies 24.58 A plaintiff may claim compensatory damages for the economic loss suffered, which is often assessed as the profits the plaintiff would have received had the contract not been breached: Zhu v Treasurer of New South Wales (2004) 218 CLR 530; 211 ALR 159. Damages are at large (Lumley v Gye (1853) 2 El & Bl 216; 118 ER 749), meaning that damages may be awarded for any loss that may reasonably be inferred, together with exemplary or punitive damages, and even compensation for injured feelings consequent upon the breach: Pratt v British Medical Association [1919] 1 KB 244. 24.59 A court may also make orders by way of a mandatory or prohibitive injunction so as to more effectively remedy the effects of the tort: News Limited v Australian Rugby Football League Ltd (1996) 139 ALR 193 at 291.

4

Conspiracy

24.60 The tort of conspiracy involves two or more defendants combining to commit an act with the intention to cause loss to the plaintiff. Persons involved in a conspiracy may be liable in both tort and criminal law: Peters v R (1998) 192 CLR 493. In Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 439–40, Viscount Simon LC described the difference between the civil and criminal forms of the action as follows: Conspiracy, when regarded as a crime, is the agreement of two or more persons to effect any unlawful purpose, whether as their ultimate aim, or only as a means to it, and the crime is complete if there is such agreement, even though nothing is done in pursuance of it … But the tort of conspiracy is constituted only if the agreed combination is carried into effect in a greater or less degree and damage to the plaintiff is thereby produced. It must be so, for, regarded as a civil wrong, conspiracy is one of those wrongs (like fraud or negligence) which sound in damage, and a mere agreement to injure, if it was never acted upon at all and never led to any result affecting the party complaining, could not produce damage to him.

See also Quinn v Leathem [1901] AC 495 at 528–9, per Lord Brampton;

Allen v Flood [1898] AC 1; Latham v Singleton [1981] 2 NSWLR 843; Riley v Organ [1921] St R Qd 28. The tort was defined in Ballard v Multiplex [2012] NSWSC 426 at [65], as follows: At common law, the parties to an agreement may incur civil liability to a third party if by their agreement they “combine” for the purpose of causing harm to that third party; if they execute their agreement by the performance of overt acts; and if thereby the third party does suffer harm.

24.61

It is necessary for the plaintiff to establish the following elements:

an agreement between two or more persons; [page 632] the intention of the agreement was to injure the plaintiff by unlawful means; and the carrying out of the agreement resulted in damage to the plaintiff.

Agreement 24.62 It is essential that there be an agreement between two or more persons. It was explained in Chong v CC Containers Pty Ltd [2015] VSCA 137 at [133] how an agreement may be proven: As conspirators will ordinarily conceal their unlawful agreement, it will often be the case that there is no direct evidence of the combination. The conspiracy may be proved without direct evidence of an express agreement or understanding as to the common design (Australian Wool Innovation Pty Ltd v Newkirk (2005) ATPR ¶42-053 at 42,674 [62] (Hely J)). It is generally a matter of inference deduced from certain acts of the parties done in pursuance of the apparent purpose in common between them. The overt acts done in furtherance of the combination may support the inference that there was such an agreement or understanding to further the common unlawful object of the combination (Australian Wool Innovation Pty Ltd v Newkirk). Separate acts of co-conspirators may be relied upon which have such a concurrence of time, character, direction and result as naturally leads to the inference that these separate acts were the outcome of pre-concert or some mutual contemporaneous engagement evidencing the common

object of the combination (Latham v Singleton [1981] 2 NSWLR 843 at 859 (Nagle CJ at CL), citing R v A-G (Cth) v Associated Northern Collieries (1911) 14 CLR 387at 400 (Isaacs J)). A mere co-incidence of separate acts however, which by their conjoined effect cause damage, will not suffice. The evidence must be such as to permit it to be inferred that the acts were undertaken in pursuit of the common object so that it may be said that the actors acted in concert towards the common end (Peters v R (1998) 192 CLR 493 at 516–20 (McHugh J); Dresna Pty Ltd v Misu Nominees Pty Ltd (2004) ATPR ¶42–013 at 48,885 [12] (Kiefel and Jacobson JJ)).

24.63 A conspiracy action may lie against a company if the company’s directors, whose acts and statements are relied upon to establish the conspiracy, were acting at the time with the authority of the company: Ahern v R (1988) 165 CLR 87; 80 ALR 161; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; compare O’Brien v Dawson (1942) 66 CLR 18. The necessary combination of persons may include a variety of forms and is not restricted to any particular classes of individuals: Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435; White v Riley [1921] 1 Ch 1. See, for example, Deutsch v Rodkin [2012] VSC 450 (various members of the defendant’s family lodged caveats to delay the plaintiff selling her property).

Intention 24.64 The tort of conspiracy has two forms and the requisite intention is dependent upon the form: the defendants conspired to commit an unlawful act to injure the plaintiff; and the defendants conspired to commit a lawful act to injure the plaintiff. 24.65 The plaintiff must have been identified as the target of the conspiracy; it is not sufficient that the plaintiff be a member of an unascertained class: Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169.

[page 633] 24.66 In Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 445, Viscount Simon LC noted that the intention of the defendants is vital to the action, not what the foreseeable consequence of their conduct may be: [T]he test is not what is the natural result to the plaintiffs of such combined action, or what is the resulting damage which the defendants realise or should realise will follow, but what is in truth the object in the minds of the combiners when they acted as they did. It is not consequence that matters, but purpose …

See also Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678 at 681. 24.67 To prove the purpose of the conspiracy, the defendants must have all agreed upon the purpose, or one defendant with the purpose to injure the plaintiff must have made it known to the other defendants and they joined or continued with the conspiracy: To prove the (or a) purpose of a conspiracy, it must be shown either that the parties agreed on that purpose or that one party, having that purpose, made it known to the other or others, and that the other or others, having that knowledge, joined or continued with or performed the conspiracy: Ballard v Multiplex [2012] NSWSC 426 at [66].

See also McKernan v Fraser (1931) 46 CLR 343 at 407–8 per Evatt J.

Unlawful act 24.68 If the defendants conspire to commit an unlawful act to injure the plaintiff, then there is the requisite intention: Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678. In Lonrho plc v Fayed [1992] 1 AC 448, the plaintiff wished to take over another company but was prevented from increasing its stake of the share capital by an undertaking given to the Secretary of State, pending the outcome of a reference to the then Monopolies and Mergers Commission (UK). The first three defendants, through the medium of the fourth, made a rival bid for 100 per cent of the share capital of the company. The offer was approved by the directors of the company, was not referred to the

Commission and the defendants gained control of the company. The plaintiff then issued a writ against the defendants and, by its statement of claim, alleged, inter alia, that the first three defendants, by false statements about their financial capacity to acquire the share capital and develop the company’s business, had conspired against the plaintiff. In declining to strike out the plaintiff’s statement of claim, the House of Lords confirmed that, where an alleged conspiracy is one involving unlawful means, it is sufficient merely for the applicants to prove that the combination of the defendants doing one or more of those unlawful acts resulted in damage to them without further proving that the predominant purpose of the conspirators was an intention to injure the applicants. 24.69 An unlawful act may involve a breach of contract (Stanley v Layne Christensen Co [2006] WASCA 56; McKernan v Fraser (1931) 46 CLR 343), including an employment contract: Williams v Hursey (1959) 103 CLR 30; Maritime Union of Australia v Patrick Stevedores No 1 Pty Ltd (1998) 153 ALR 602 at 612–13. See Ansett Transport Industries [page 634] (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211, where the court held that the directive of the defendant that pilots were to only work from 9 am until 5 pm was procuring breaches of the pilot’s employment contracts and therefore an unlawful act. A breach of a statutory provision which imposes liability, including those imposing criminal liability, are unlawful means: Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678.

Lawful act 24.70

If the conspiracy is based upon lawful acts, the intention to injure

the plaintiff need not be the sole purpose, but it must be the predominant purpose: McKernan v Fraser (1931) 46 CLR 343 at 362. In Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 445, it was pointed out that it is possible that the predominant purpose is to protect interests of others, but in that, the plaintiff suffers loss: If that predominant purpose is to damage another person and damage results, that is tortious conspiracy. If the predominant purpose is the lawful protection or promotion of any lawful interest of the combiners (no illegal means being employed), it is not a tortious conspiracy, even though it causes damage to another person.

In Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211, the court identified the predominant purpose of the defendant in advising and procuring the resignations of the pilots as part of the industrial dispute was to protect the pilots from liability for breach of contract, not to cause injury to the four employer airlines. Therefore, there was no conspiracy in relation to the limited working hours directive. See also Crofter Handwoven Harris Tweed Co Ltd v Veitch [1942] AC 435.

Damage 24.71 A plaintiff must show that actual damage was suffered or it must be possible to reasonably infer that damage has been suffered: Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678.

Defences 24.72 The defence of justification may be raised if the conspiracy is by lawful means: McKernan v Fraser (1931) 46 CLR 343; Latham v Singleton [1981] 2 NSWLR 843. A conspiracy by unlawful means by the very fact it involves an unlawful act, is unlikely to have the defence of justification available.

Remedies 24.73 Damages may be awarded to compensate loss suffered by the plaintiff as a result of the conspiracy. Consequential, foreseeable losses may be claimed, but compensation for injury to reputation is not available: Lonrho v Fayed [1989] 3 WLR 631. 24.74 Exemplary damages are available if the conspiracy has been established and compensatory damages are available: Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678. [page 635]

5

Intimidation

24.75 The tort of intimidation involves a person threatening, or carrying out, an unlawful act to intimidate the plaintiff into doing or refraining from doing something, with the intention of causing economic loss: Rookes v Barnard [1964] AC 1129. Intimidation may be both a tort and a crime: see, for example, Queensland Criminal Code 1899 s 534. In Habib v Commonwealth (No 2) (2009) 175 FCR 350; 254 ALR 250 at [19], the elements of the tort of intimidations were stated to be: First, there must be a demand made of the plaintiff by the defendant coupled with a threat to either the plaintiff or a third party: Stratford (JT) & Son Ltd v Lindley [1965] AC 269 at 283; [1964] 3 All ER 102 (Stratford) per Lord Denning MR. Second, the threat issued by the defendant must be to commit an unlawful or illegal act. The illegality required need not be criminal; indeed, it has been held that a threat to breach a contract is a sufficient threat for the purposes of the tort: Rookes v Barnard [1964] AC 1129; [1964] 1 All ER 367. Third, it must be shown that the plaintiff complied with the demand: Stratford at 283.

See also Morgan v Fry [1968] 2 QB 710 at 724; Jack Brabham Engines Ltd v Beare [2010] FCA 872 at [303].

In Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (ACN 004 620 731) [2014] VSCA 348, the appellant submitted that the continuing recognition of the tort of intimidation had to be questioned in light of the Australian industrial relations statutory framework. The court pointed out that the existence of a tort was not affected by legislation, ‘[o]therwise, the life of such a cause of action would wax or wane according to the state of the legislation’ (at [57]), and for legislation to abrogate the right of plaintiff for redress against a wrongdoer for intimidation would need ‘a clear and unambiguous statement of legislative intention’: at [58]. 24.76

To succeed in the tort of intimidation, a plaintiff must establish:

a threat of an unlawful act by the defendant to the plaintiff or a third party; compliance with the threat; the defendant intended to cause injury to the plaintiff; and loss was suffered by the plaintiff.

Threat of an Unlawful Act 24.77 The threat or demand of the defendant must require the plaintiff or third party to take a particular course of action. In Habib v Commonwealth (No 2) (2009) 175 FCR 350; 254 ALR 250 at [20], the court noted that there was no evidence that the defendant sought to coerce the plaintiff into a particular course of action and therefore the action in intimidation failed. See also Huljich v Hall [1973] 2 NZLR 279. 24.78 In Rookes v Barnard [1964] AC 1129, it was recognised that the intimidation may be of the plaintiff or of a third party to cause harm to the plaintiff. In that case, union members threatened the plaintiff’s employer with an unlawful strike if the plaintiff was not dismissed, therefore it was a threat against a third party to cause economic loss to the plaintiff.

[page 636] 24.79 The defendant must threaten or commit some unlawful act. An unlawful act may be an act that amounts to a crime or a civil wrong: Latham v Singleton [1981] 2 NSWLR 843. In Ellis v McGowan (NSWSC, Master Allen, 15 November 1977, unreported), the plaintiff refused to participate in impromptu stoppages of work with other union members. The other union members requested that the employer terminate his employment and subjected him to personal abuse and impeded his progress in his job. An order of the industrial court to cease such conduct was ignored. The plaintiff sought damages and the New South Wales Supreme Court held that the unlawful conduct of the defendants included assault, defamation, criminal offences and contempt of court. In Latham v Singleton [1981] 2 NSWLR 843, each time the plaintiff arrived for work the other employees would walk off the job. This was held to be a threat of breach of contract to the employer, done with the intent to force the employer to take action against the plaintiff. See also Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760; Spira v Commonwealth Bank (2003) 57 NSWLR 544 at [49] (threat of breach of contract classified as a tort and sufficient for intimidation, but appellants did not plead the action). In Nelipa v Robertson [2001] ACTSC 55 at [8], it was noted that to exercise a statutory power for an improper purpose can amount to an unlawful act for the tort of intimidation. In that case, the plaintiff alleged that he had been informed that if he attempted to show cause why his employment with the Australian Federal Police should not be terminated, as allowed by the legislation, he would be transferred to a position ‘where he would “end up being most unhappy”’: at [4]. The court stated (at [9]): It cannot be a lawful act to transfer a police officer for the purpose of inducing that police officer to refrain from engaging in some lawful act. There is an apocryphal story of an Australian police minister, whose car is stopped for speeding, pulling out a road map and opening it to a remote

area, saying to the young constable writing out the speeding ticket, “Son, where do you want to be transferred to?” It could not be argued that a threat by a person in authority over a police officer to transfer a police officer to an undesirable location in order to induce the officer to not proceed to do his duty by issuing an infringement notice would not be an unlawful act. Indeed it would probably be a crime.

See also Latham v Singleton [1981] 2 NSWLR 843 at 864, where the defendants conspired so as to threaten the plaintiff’s employer: The conclusion has already been expressed in this judgment that the majority of the defendants acted in concert when they walked off the job on the appearance of the plaintiff at the depot, and that their actions were meant to constitute a threat to the city council which would be forced to take action against the plaintiff if it was unable to maintain the garbage and sanitary services of the City of Broken Hill.

Compliance 24.80 The act of the defendant must coerce the plaintiff or third party into acting in a way they did not wish to. If there is no submission to the threat, there can be no action: J T Stratford & Son Ltd v Lindley [1965] AC 269 at 283. [page 637]

Intention 24.81 It is necessary to prove that the defendant intended the consequences of his or her act or threat: Rookes v Barnard [1964] AC 1129; Latham v Singleton. The threat to commit a lawful act cannot form the basis of an action: Allen v Flood [1898] AC 1.

Damage 24.82 The compliance with the threat must result in economic loss to the plaintiff. In Ansett Transport Industries (Operations) Pty Ltd v Australian

Federation of Air Pilots [1991] 1 VR 637; (1989) 95 ALR 211, four Australian airlines took action against the defendants in interference with contractual relations, conspiracy and intimidation. The parties had been involved in a dispute concerning pay increases for pilots. As part of the dispute, nearly all pilots resigned from their employment, leading to the airlines placing advertisements in Australia and overseas seeking pilots. In response, the defendant advertised in newspapers that any pilot seeking employment with the airlines would be considered to be a strike breaker and that the terms of the settlement of the dispute would include a provision for the immediate cancellation of the employment contracts of those pilots. The airlines alleged that the advertisement by the defendant prevented pilots from seeking employment with them. The court held that there was no direct evidence provided by the airlines as to loss suffered as a consequence of the defendant’s advertisement. The court stated (at VR 696; ALR 273): The warning notice certainly had a tendency to deter pilots from seeking employment with the plaintiffs. The defendants concerned thought it worthwhile, in the hope of warning pilots off, to go to the trouble and incur the expense of publishing it. The pool of pilots available to the plaintiffs, made up both of those who had resigned and of other pilots in Australia and abroad, was very large. It may be that some pilots were deterred from taking employment with the plaintiffs by the notice. The numbers recruited have not been large. On the other hand there were a number of other factors operating to influence the minds of pilots and I do not find any satisfactory evidence of an incident in which a particular pilot appeared to be deterred from taking employment not merely by the warning notice but by the objectionable feature of that notice, that is, the threat that new employees would be dismissed. So far as other factors are concerned, these have been canvassed in argument. They include (in the case of those who had resigned) self-interest and loyalty and (in the case of all pilots) the fear of unpleasant consequences of one kind or another if they took up employment and anxiety about what their position would be, in every respect, quite independently of the threat in the notice, if the dispute was settled and those who had resigned returned to work.

Defences 24.83 Although the decision of Latham v Singleton [1981] 2 NSWLR 843 suggests that the defence of justification may be available to the tort of

intimidation, it is unlikely that such a defence, one that involves unlawful acts and an intention to harm the plaintiff, would find favour.

Remedies 24.84

Lord Devlin indicated in Rookes v Barnard [1964] AC 1129 at 1221:

It must be remembered that in many cases of tort damages are at large, that is to say, the award is not limited to the pecuniary loss that can be specifically proved. In the present case, for example, and leaving aside any question of exemplary or aggravated damages, the appellant’s damages

[page 638] would not necessarily be confined to those which he would obtain in an action for wrongful dismissal. He can invite the jury to look at all the circumstances, the inconveniences caused to him by the change of job and the unhappiness maybe by a change of livelihood. In such a case as this, it is quite proper without any departure from the compensatory principle to award a round sum based on the pecuniary loss proved.

24.85 A plaintiff may claim for any consequential and foreseeable loss suffered due to the intimidation, including general damages for pain, suffering and distress: Latham v Singleton. 24.86 Aggravated and exemplary damages are also available: Latham v Singleton. If the circumstances warrant it, an injunction may be granted.

6

Injurious Falsehood

24.87 Injurious falsehood protects a number of interests and is, in some ways, similar to defamation, see 24.101. The action is based upon false representations made maliciously about the plaintiff’s business or goods: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; 23 ALR

167. The common law action is rarely relied upon by itself, as Kirby J pointed out in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [99]: … this is a “rare and anomalous tort”. It has rarely been considered by this court or by other Australian appellate courts. In part, this is doubtless because, unaltered by statute, the cause of action obliges a plaintiff to prove “each and every” one of its restrictive elements. In part, it is because facts giving rise to the tort will often lend themselves to proceedings in defamation where the elements to be proved are less restrictive and the damages may be greater. In part, it may be because trade practices legislation, where it applies, affords causes of action of broader ambit and with wider remedies (footnotes omitted).

24.88 The tort of injurious falsehood developed in the 16th century from a number of more specific causes of action, including: slander of title, which involved denying the title of a person to property causing loss, for example by causing the withdrawal of a prospective purchaser (Smith v Spooner (1810) Taunt 246; 128 ER 98); and slander of goods, which involved disparagement of the property of the plaintiff: Western Counties Manure Co v Lawes Chemical Manure Co (1874) LR 9 Ex 218. 24.89 The elements of the tort of injurious falsehood were comprehensively listed in Ratcliffe v Evans [1892] 2 QB 524 as: a false statement about the plaintiff’s business or goods; publication; malice on the part of the defendant; and damage. See also Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 95 and 102; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [57]; AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [29]. [page 639]

False Statement 24.90 The statement complained of must be proven to be false and the onus to prove this is upon the plaintiff: Royal Baking Powder Co v Wright, Crossley & Co (1900) 18 RPC 95 (HL). Merely comparing the plaintiff’s business or goods to another’s will not necessarily amount to a false representation. The plaintiff would have to prove that the description of their business or goods was false and that the reasonable person would understand the comparison or statement to be a serious one, not mere ‘puffery’: Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 285. In De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 1 WLR 972 at 978, it was stated, ‘in the kind of situation where one expects, as a matter of ordinary common experience, a person to use a certain amount of hyperbole in the description of goods, property or services, the courts will do what any ordinary reasonable man would do, namely, take it with a large pinch of salt’.

Publication 24.91 The tort of injurious falsehood protects reputation and, therefore, the statement must have been published to a third party: Ratcliffe v Evans [1892] 2 QB 524; White v Mellin [1895] AC 154; Richards v Butcher (1890) 7 RPC 288. The statement may be oral or written: Ratcliffe v Evans at 527.

Malice 24.92 The statement must have been made with malice in the sense of improper motive or lack of good faith, for example through deliberate misrepresentation: Joyce v Motor Surveys Ltd [1948] Ch 252. In AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [31]–[32], Brereton J summarised the authorities on malice:

While the notion of “malice” in the context of this tort is not easy to define, it is a question of motive, intention or state of mind and it involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person. The English Court of Appeal has said that the criteria for malice in injurious falsehood are the same as at common law for libel and slander. Its content has been variously described as “an intent to injure another without just cause or excuse” or “some indirect, dishonest or improper motive”, or “a purpose or motive that is foreign to the occasion and actuates the making of the statement”. It involves that the statement was made mala fide or with a lack of good faith. In this context, while a person who acts in good faith is not liable, malice may exist without an actual intention to injure. As motive must often be inferred from what the defendant did or said or knew, malice is commonly proved by inference. Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”… Proof that the defendant knew that a statement was untrue is ordinarily conclusive evidence that its publication was actuated by an improper motive. On the other hand, mere lack of affirmative belief in truth is insufficient of itself to establish malice. But malice can be inferred not only where the false publication was made with knowledge of its falsity, but also where it was made with reckless indifference as to whether it was true or false. [footnotes omitted]

[page 640] 24.93 Therefore, malice may be established, depending upon the facts, by proving that the defendant: knew of the falsity of the statement (Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275); or was reckless as to whether it was true or false (Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [192]–[194]; Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247 at [31]); or the statement was made with the intention of causing the plaintiff damage: Lyne v Nicholls (1906) 23 TLR 86; White v Mellin [1895] AC 154. 24.94

Evidence of the defendant’s personal ill-will towards the plaintiff

will assist in establishing malice. A mere intention to attract business is not evidence of malice: Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 at 290; De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] 1 WLR 972. In Shapiro v La Morta (1923) 40 TLR 201 at 203, Lord Scrutton held that the authorities on this issue: … suggest that if the defendant is speaking in furtherance of his own business or interest and honestly believes what he says to be true, in contrast with deliberate intention to injure the plaintiff, either with knowledge that the statement is untrue or with reckless indifference to whether it is true or false, then either there is no cause of action or the defendant has a “just cause or excuse”.

24.95 In Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275, it was held that a statement that was not without truth, but was an exaggeration, was made with malice. Pincus J found that the statement gave the wrong impression about the plaintiff’s business and ‘went beyond a mere generalisation’: at 291.

Damage 24.96 The plaintiff must prove that they have suffered actual damage, that is, loss or damage that is the direct and natural consequence of the defendant’s publication of the false statement: Ratcliffe v Evans [1892] 2 QB 524 at 528, 529, 532; White v Mellin [1895] AC 154 at 159, 160; Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 95, 96; Seafolly Pty Ltd (CAN 001 537 748) v Madden (2012) 297 ALR 337 at [112], [114]. For example, damage may be the loss of profits or evidence of cancellation of orders: Ratcliffe v Evans [1892] 2 QB 524 at 533. Being unable to sell the goods or having to sell them at a lower price would also be damage. In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [81], the High Court held that the damage is not limited to merely the damage intended by the defendant: It will not necessarily be sufficient that the wrongdoer intended damage different in kind from that which occurred. Where there is a finding that the wrongdoer “intended” a certain

consequence, the issue of whether the wrongdoer should be liable for a consequence different in kind will depend largely upon the considerations identified by Pollock (The Law of Torts, 12th ed, 1923, Stevens, London, p 32) and referred to above. That is to say, it will depend upon the relation of that which the wrongdoer intended to the consequences which actually resulted. This relation will generally be assessed by asking whether the damage was the “direct and natural result” of the publication of the falsehood.

[page 641] 24.97 In Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280, the appellant was engaged by McDonald’s Australia Ltd as a surveyor for the purpose of developing a site for a new McDonald’s restaurant. The respondent, a member of the local council who opposed the development, sent a forged letter containing absurd inducements and threats to another councillor, purporting to be from the appellant. The letter was reproduced in a newspaper article which stated that the bogus letter was being investigated. As a result of the newspaper article, the appellant’s retainer was terminated by McDonald’s Australia Ltd. The appellant sued the respondent in injurious falsehood, claiming that the special damage was the loss of the retainer. The High Court held that reasonable foreseeability of the damage suffered had no place in the tort of injurious falsehood (at [13] and [80]) and that the damage suffered must result from the falsehood: at [14]. The court held that the respondent was not liable as the loss of the appellant’s retainer was not the result of the publication of the letter by the respondent to the other councillor, but the result of the newspaper article, which was a truthful report of the investigation of the bogus letter.

Remedies 24.98 The remedy for injurious falsehood is compensatory damages for the economic loss suffered by the plaintiff as a result of the falsehoods. A plaintiff cannot be compensated for loss of reputation and it is unclear

whether aggravated damages or exemplary damages are available: see Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [136] per Kirby J. 24.99 An injunction may be granted to restrain publication or restrain the continued publication of the falsehood if there is a probability of damage: Swimsure (Laboratories) Pty Ltd v McDonald [1979] 2 NSWLR 796. In Menulog Pty Ltd v TCN Channel Nine Pty Ltd [2012] NSWSC 247, the plaintiff sought an urgent injunction to prohibit the telecast of a television program about their business. The program alleged that the plaintiff’s business was ripping its customers off by taking orders for food deliveries from a restaurant specified by its customers, but providing food from a different restaurant. In granting the injunction, the court referred to the promotion video of the program and stated (at [29]): It is apparent that the purpose of the program was to demonstrate wrongdoing on some person’s part (“swindle”, “switch-a-roo” “ripped off”, “scam”). By the approach made to the Plaintiff it is a reasonable inference that the Plaintiff is the object, or one of the main objects of attention. The evidence discloses that the Plaintiff, through its website, was the passive recipient of orders placed, which orders were electronically transferred to Cuisine Courier without any knowledge on the Plaintiff’s part of what happened thereafter in relation to those orders. The fact that the Plaintiff was entitled to receive a fee by virtue of its contractual arrangements with Cuisine Courier does not elevate the Plaintiff’s knowledge or involvement in what happened, nor does it remotely implicate (in the commonly understood meaning of the word) the Plaintiff in any fraud, dishonesty or other turpitudinous behaviour described by the words I have mentioned.

The court noted (at [21]): In relation to whether an injunction should issue at all in the type of case such as the present, the authorities have distinguished between cases of defamation and cases where injurious falsehood

[page 642] is claimed. The usual restraint exercised for the grant of injunctive relief in defamation cases does not apply with the same force in cases of injurious falsehood: AMI Australia Holdings Pty

Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [39]; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [58].

See also Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521, where the plaintiff sought an interlocutory injunction to prevent the defendant from publishing certain statements and allegations about the plaintiff on its website. The judge noted that there was evidence to indicate that there was a serious issue to be tried in respect of the injurious falsehood action by the plaintiff. The defendant’s concern was to warn the public at large about what he considered to be poor workmanship by the plaintiff. As a failure to achieve that would not cause the defendant any loss but publication of the material would have the ‘very real potential that it will cause the plaintiff loss’, the injunction was granted: at [58]. An injunction was refused in DHR International Inc a company incorporated in Delaware in the United States of America v Challis [2015] NSWSC 1567 as no evidence was provided that the published statements were materially false.

Australian Consumer Law 24.100 Section 18 of the Australian Consumer Law (misleading or deceptive conduct) provides an alternative to an action in injurious falsehood. The advantages of the statutory action are: a plaintiff is not required to prove that they have suffered actual loss; there is no need to prove that the defendant intended to mislead or deceive (Hornsby Building Information Centre Pty Ltd v Building Information Centre Ltd (1978) 140 CLR 216); and there is no need for the plaintiff to establish malice. See also Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; 185 ALR 280 at [99], per Kirby J.

Comparison with Defamation

24.101 In Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) (2002) 120 FCR 191 at [198], Weinberg J compared the torts of injurious falsehood and defamation: In some respects, this tort [injurious falsehood] bears a marked resemblance to defamation. Both involve a false and harmful imputation concerning the plaintiff which is made to a third party. They differ, however, in that the law of defamation protects interests in personal reputation while injurious falsehood protects interests in the disposability of a person’s property, products or business. Defamation is generally actionable without proof of damage. Falsehood is presumed and liability is strict. In an action for injurious falsehood, the plaintiff must prove that he sustained actual economic loss, that the offending statement was false, and that it was made with intent to cause injury without lawful justification. The requisite state of mind is often described as malice.

[page 643] See also Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 692; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 at [10]–[11]. See Chapters 22 and 23.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 21. J Dietrich, ‘Lawful Coercive Threats and Infliction of Harm’ (2000) 8 TLJ 187. G H L Fridman, ‘Interference with Trade or Business’ (1993) Tort L Rev 99. M Izzo, ‘The Limits of Lumley v Gye: Commercial Disputes and the Tort of Interference with Contractual Relations’ (2005) 13 TLJ 188.

1.

G H L Fridman, ‘Interference With Trade or Business’ (1993) Tort L Rev 99.

2.

The tort of unfair competition does not exist in Australia. It would be ‘inconsistent with the established limits of the traditional and statutory causes of action which are available to a trader in respect of damage caused or threatened by a competitor’: Moorgate Tobacco Co Ltd v Philip Morris Ltd (1984) 156 CLR 414 at 445; 56 ALR 193 at 214.

3.

For a discussion of the trade mark legislation and the relation with the tort of passing off, see M Davison, ‘Reputation in Trade Mark Infringement: Why Some Courts Think it Matters and Why it Should Not’ (2010) 38 Fed L Rev 231.

[page 645]

Chapter 25 Nuisance 1

Introduction

25.1 There are two types of nuisance actions: a public and a private action. Both originally developed during the course of the 12th and 13th centuries, although it was not until the 16th century that a private action in public nuisance, as opposed to a criminal action, was recognised. The private nuisance action complements the trespass to land action discussed in Chapter 4. However, in contrast, the private nuisance action is concerned with protecting a person’s right to the quiet use and enjoyment of their possession of land free from unreasonable interferences: SedleighDenfield v O’Callaghan [1940] AC 880 at 896 per Lord Atkin; Elston v Dore (1982) 149 CLR 480 at 480 per Gibbs CJ, Wilson and Brennan JJ. The tort of public nuisance is concerned with the protection of public rights (for example, a healthy and safe environment) and is also a crime under the common law and in statute in Queensland and Tasmania: Criminal Code (Qld) s 230; Criminal Code (Tas) s 141. The tort of nuisance is often discussed in modern times in relation to claims by landowners for loss suffered due to the effects of climate change.1 The interference which gives rise to an action in nuisance, private or public, may be an isolated incident or reoccurring or continuing. However, as an action on the case, it is only upon damage being suffered that an action will arise.

2

Private Nuisance

25.2 Private nuisance has been described as ‘an unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it’: Hargrave v Goldman (1963) 110 CLR 40 at 49 per Windeyer J; see also Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 896 per Lord Atkin; Elston v Dore (1982) 149 CLR 480 at 480 per Gibbs CJ, Wilson and Brennan JJ. In Marsh v Baxter [2015] WASCA 169 at [242], it was noted: nuisance is the field of tort liability that protects an occupier’s interest in the use and enjoyment of their land; its primary concern is with the reciprocal rights and duties of private individuals, usually neighbours, where there is a conflict over competing uses of land.

[page 646] 25.3 Not every interference with the use of land will be unlawful. The courts consider a variety of factors before finding that a given activity constitutes a private nuisance. This is because of the balance required to be struck between competing uses of land. As Lord Wright commented in Sedleigh-Denfield v O’Callaghan (at 487–8): A balance has to be maintained between the right of the occupier to do what he likes with his own, and the right of his neighbour not to be interfered with. It is impossible to give any precise or universal formula, but it may broadly be said that a useful test is perhaps what is reasonable according to the ordinary usages of mankind living in society, or more correctly in a particular society.

In Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287 at [118], the law of nuisance was summarised: Nuisance protects a claimant’s interest in the beneficial use of land. It is not confined to the actual use of the soil but extends to the pleasure, comfort and enjoyment which a person normally derives from occupancy of land. Thus, nuisance covers physical damage to property and non-physical damage. To constitute a nuisance, the interference must be unreasonable. In making that judgment, regard is had to a variety of factors including: the nature and extent of the harm or interference; the social or public interest value in the defendant’s activity; the

hypersensitivity (if any) of the user or use of the claimant’s land; the nature of established uses in the locality (eg residential, industrial, rural); whether all reasonable precautions were taken to minimise any interference; and the type of damage suffered.

25.4

The elements of private nuisance are:

the plaintiff has title to sue; an interference with a recognised right attached to land; and damage. Consideration must also be given to who may be sued for the nuisance.

Title to Sue 25.5 To have title to sue in private nuisance, the plaintiff must have a legally recognised interest in land and be in actual possession of the land at the time of the interference: Malone v Laskey [1907] 2 KB 141; Oldham v Lawson (No 1) [1976] VR 654. As noted in 25.1, interferences may be one-off, isolated incidents, repeated or continuing. A plaintiff may sue in respect of a continuing interference which existed prior to taking possession of the land: Bliss v Hall (1838) 4 Bing (NC) 183; 132 ER 758.

Owners and tenants 25.6 An owner in possession would have the requisite title to sue, as would a legal tenant in possession of leased premises: Malone v Laskey [1907] 2 KB 141. As with a trespass to land action, a reversionary owner can only sue where the nuisance causes permanent damage to the land: McCarty v Municipality of North Sydney (1918) 18 SR (NSW) 210; Carter v Kenyon (1863) 2 SCR (NSW) 222; Jeffrey v Honig [1999] VSC 337. A reversionary owner cannot sue in private nuisance for temporary interferences which cause no damage to the proprietary interest.

[page 647] A tenant in occupation would have title to sue for any temporary interferences with the use and enjoyment of the leased premises, but cannot sue for damage to the reversionary interest: Kensington Starch & Maizena Co Ltd v Essendon and Flemington Corporation (1880) 6 VLR (L) 265.

Licensees 25.7 Mere occupation of the land will not establish sufficient title even where the occupier is a member of the owner’s or tenant’s family: Oldham v Lawson (No 1) [1976] VR 654; Malone v Laskey [1907] 2 KB 141. It was suggested by the majority of the English Court of Appeal in Khorasandjian v Bush [1993] QB 727 that, in keeping with changing social conditions, title to sue should be extended to the daughter of the homeowner who was being harassed by unwanted telephone calls from her former boyfriend. Dillon LJ, with whom Rose LJ agreed, said (at 734): To my mind, it is ridiculous if in this present age the law is that the making of deliberately harassing and pestering telephone calls to a person is only actionable in the civil courts if the recipient of the calls happens to have the freehold or leasehold proprietary interest in the premises in which he or she has received the calls.

Subsequently, this aspect of Khorasandjian v Bush was overruled by the House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655, which applied the decision of Malone v Laskey. The Queensland Court of Appeal, in Deasy Investments Pty Ltd v Monrest Pty Ltd [1996] QCA 466, relied upon Khorasandjian’s case to hold that a person in mere possession of premises as a licensee could sue in private nuisance. As Pincus JA said (at 6): Although the older cases and in particular Malone v Laskey [1907] 2 KB 141 took a contrary view, I see no reason why the recent English decision [Khorasandjian v Bush] should not be followed: it is consistent with a number of decisions in this country: Vaughan v Benalla Shire (1891) 17 VLR 129, Ruhan v Water Conservation and Irrigation Commission (1920) 20 SR

(NSW) 439, and McLeod v Rub-a-dub Car Wash (Morvan) Pty Ltd (unreported, 29 February 1972, Victorian Supreme Court).

Subsequent to the House of Lords’ decision in Hunter v Canary Wharf, only one Australian court appears to have considered the issue of whether a mere licensee has title to sue in private nuisance. In Stockwell v Victoria [2001] VSC 497, Gillard J applied Hunter v Canary Wharf to hold that only the owner, tenant or person with exclusive possession had title to sue in private nuisance. However, since the plaintiff in that case was the owner of the relevant property, whether the title of a mere licensee was sufficient did not require direct consideration.

Who Can be Sued Occupiers of land 25.8 A person in occupation of land from which a nuisance emanates can be sued, not only in respect of personal acts, but also for nuisances created by persons on the land with the occupier’s consent (Laugher v Pointer (1826) 5 B & C 547; 108 ER 204) or for acts of persons for which permission has been given: De Jager v Payneham & Magill Lodges Hall Inc (1984) 36 SASR 498; Challen v McLeod Country Golf Club (2004) Aust Torts Reports ¶81-760. [page 648] The occupier will not be liable for a nuisance created by a person on the land without permission unless the occupier knew, or ought to have known, of the nuisance and failed to abate it: L’Estrange v Brisbane Gas Co [1928] St R Qd 180; Sedleigh-Denfield v O’Callaghan [1940] AC 880. 25.9 An occupier will not be liable for a nuisance created prior to occupation in circumstances where neither the occupier nor the occupier’s

employees knew, or ought to have known, of the nuisance: Torette House Pty Ltd v Berkman (1940) 62 CLR 637. In Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 69 ALR 258, for example, water was found in the cellar of the plaintiff’s hotel. It was traced to a faulty downpipe on a new building next door, which was leased by the defendant. The Privy Council, on an appeal from the Supreme Court of Victoria, held that the defendant was not liable in private nuisance. It had not created the nuisance caused by the faulty downpipe and it had not been guilty of any fault before the water was discovered in the plaintiff’s cellar, as it neither knew nor ought to have known of the fault in the downpipe before the water was discovered. Lord Ackner stated (at 263): In their Lordships’ judgment, Vincent J was entirely correct in concluding that since up to the stage when the problem was identified, there was no finding of fault by the Appeals Board and no basis upon which such a finding could be made, the [defendant] could not be held liable in nuisance.

25.10 The situation will be different where the occupier has, or should have, knowledge of the nuisance. In those circumstances, the occupier is said to have adopted or continued the nuisance, unless reasonably prompt and efficient steps are taken to abate it: Proprietors of Strata Plan No 14198 v Cowell (1989) 24 NSWLR 478. In Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 897, Lord Atkin stated: It seems to me clear that if a man permits an offensive thing on his premises to continue to offend, that is if he knows that it is operating offensively, is able to prevent it and omits to prevent it he is permitting the nuisance to continue; in other words he is continuing it.

25.11 If an occupier takes no steps to remove a nuisance occurring through natural causes, for example tree roots, the occupier may be liable: Owners of Strata Plan No 13218 v Woollahra Municipal Council [2002] NSWCA 92; Delaware Mansions Ltd v Westminster City Council [2001] 4 All ER 737; Malliate v Sharpe [2001] NSWSC 1057; Richmond City Council v Scantelbury [1991] 2 VR 38; Leakey v National Trust [1980] QB 485. In Morgan v Khyatt [1964] 1 WLR 475 at 477 Lord Evershed said:

… it has … long been established as a general proposition that an owner of land may make any natural use of it; but also (and by way of qualification of the general rule) that if an owner of land grows or permits the growth on his land in the natural way of trees whose roots penetrate into adjoining property and thereby cause and continue to cause damage to buildings upon that property, he is liable for the tort of nuisance to the owner of that adjoining property.

Landlords and tenants 25.12 A landlord will only be liable for a nuisance created by a tenant, if the landlord actively participated in the nuisance or expressly authorised the nuisance or it was foreseeable [page 649] to result from the purposes for which the property was let: Malzy v Eichholz [1916] 2 KB 308; Peden Pty Ltd v Bortolazzo [2006] 2 Qd R 574; Lawrence v Fen Tigers Ltd (No 2) [2015] AC 106. As to whether implied consent will be sufficient to make the landlord liable, see Tetley v Chitty [1986] 1 All ER 663. If the landlord has not authorised the interference and it is not the foreseeable consequence of the letting of the premises, the tenant is the correct defendant. 25.13 A landlord may be liable to a tenant for the nuisance created by another tenant if the lease agreement provides the landlord with the means of controlling the activities carried out on the leased premises. In Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1, the plaintiff sued the defendant landlord for the nuisance created by the business of another tenant in the same complex. The court held that the defendant was in breach of its implied obligation not to derogate from its grant to the plaintiff and that the defendant had within its power a method to control the activities of the tenant creating the nuisance. The contract of lease provided that the tenant ‘undertook not to do or permit any act or thing which might be a nuisance or cause damage or disturbance to any other tenant or to the lessor’: at 12–13. By

failing to undertake any steps to prevent the nuisance, despite being made aware of the problem, the defendant was liable in nuisance. 25.14 A landlord may be liable if the nuisance was in existence at the time the property was leased out: Roswell v Prior (1701) 12 Mod 635; 88 ER 1537; Cull v Green (1924) 27 WALR 62. The landlord will be liable if the landlord agreed to, or reserved the right to, repair the leased property and the nuisance resulted from a failure to do so: Wilchick v Marks [1934] 2 KB 56.

Creators of the nuisance 25.15 The creator of the nuisance, whether they are in occupation of land or not, may be sued in nuisance. Nor must the nuisance emanate from the defendant’s land. In Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683, it was held that the use of heavy trucks on a public highway outside of the defendant’s premises could amount to a nuisance in relation to the defendant’s neighbour. In Onus v Telstra Corporation Ltd [2011] NSWSC 33, the defendant argued that the installation of its mobile network telecommunications tower did not amount to an interference with the plaintiff’s airfield, as there was no emanation from its site. The court held that it was rare that a defendant’s use of land would amount to a nuisance when the use of the land did not cause something to emanate, but the ‘“mere” presence of the tower of the intended height at a close proximity to the airfield constitutes an actionable nuisance’: at [149]. A trespasser, who creates a nuisance, can be liable in private nuisance: Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218; Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486; Kraemers v Attorney-General (Tas) [1966] Tas SR 113; Pantalone v Alaouie (1989) 18 NSWLR 119. In Casley-Smith v F S Evans & Sons Pty Ltd (No 5) (1988) 67 LGRA 108 at 141, it was held that for a non-occupier to be liable in nuisance, ‘the situation of nuisance relied upon must have been the product of some form of direct

control or activity which created the nuisance’. See also, Lindner v The Corporation of the City of Marion [2015] SASC 152. [page 650]

Rights Capable of Protection 25.16 To be an actionable nuisance, there must be an interference with a right attached to land which the law recognises. The tort of nuisance provides protection against material damage to the land, buildings and goods upon the land, as well as for interference with the use and enjoyment of the land. In Robson v Leischke (2008) 72 NSWLR 98 at [54], it was stated: Three kinds of interference are recognised by the law as constituting a nuisance: (a) causing encroachment on the neighbour’s land, short of trespass; (b) causing physical damage to the neighbour’s land or any building, works or vegetation on it; and (c) unduly interfering with a neighbour in the comfortable and convenient enjoyment of his or her land. See Clerk & Lindsell on Torts 19th ed at 1165 [20–06], cited with approval in Thompson-Schwab v Costaki [1956] 1 WLR 335 at 338; [1956] 1 All ER 652 at 653; Mendez v Palazzi (1976) 68 DLR (3d) 582 at 589; and Owners of Strata Plan No 13218 v Woollahra Municipal Council (2002) 121 LGERA 117 at 135 [50] ….

25.17 The term ‘land’ includes rights attached to land. For example, the law recognises the right to enjoy one’s land free from excessive noise (Sturges v Bridgman (1879) 11 Ch D 852; Haddon v Lynch [1911] VLR 5; Cohen v City of Perth (2000) 112 LGERA 234 at 263), but does not recognise a right to a pleasant view: Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 at [89]–[90]; Shuttleworth v Vancouver Hospital [1927] 2 DLR 573. In Bathurst City Council v Saban (No 2) (1986) 58 LGRA 201 at 206, it was stated by Young J, ‘unsightliness alone does not constitute a nuisance’.

The law recognises many rights associated with land that may be protected by the action of private nuisance.

Support of land 25.18 The common law recognises that an owner of land has the right to have their land supported by the land of the adjoining owner: Pantalone v Alaouie (1989) 18 NSWLR 119; Dalton v Henry Angus & Co (1881) 6 App Cas 740 at 791. Therefore, the removal of lateral support from land is an actionable nuisance: Fennel v Robson Excavations Pty Ltd (1977) 2 NSWLR 486 at 493 per Glass JA; Graff Bros Estates Ltd v Rimrose Brook Joint Sewerage Board [1953] 2 QB 318; Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245. The law does not protect the loss of support if the land has been filled, that is, it is not in its natural state: Sutherland Shire Council v Becker (2006) LGERA 184. 25.19 Under the common law, the right to support does not extend to structures upon the land: Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558; 277 ALR 257. In S J Weir Ltd v Bijok (2011) 112 SASR 127, it was argued by the appellant that the subsidence to the respondent’s land was due to the additional weight of the carport on their land and therefore no nuisance had been committed. The court agreed that the principle was that ‘[t]here is no natural right of support for structures (as distinct from the natural right of support for land in its natural state)’ (at [69], quoting Jemena Gas Networks [page 651] (NSW) Ltd v Mine Subsidence Board at [32], citing Dalton v Henry Angus & Co (1881) 6 App Cas 740), but the evidence was that the land would have subsided even if the respondent’s carport had not been there. Therefore a nuisance had been committed.

25.20 In New South Wales, legislation has abolished the right to bring an action in nuisance for the loss of support of land, instead imposing a duty of care not to do anything to remove the support of land: Conveyancing Act 1919 (NSW) s 177. Legislation in Queensland and the Northern Territory imposes an obligation not to withdraw the support of land, but does not abolish the right to sue in nuisance for the loss of support: Property Law Act 1974 (Qld) s 179; Law of Property Act 2000 (NT) s 162.

Light 25.21 It appears that the common law does not protect the right of light: Potts v Smith (1868) LR 6 Eq 311; Bury v Pope (1586) 78 ER 375. In England there is a right to light in the form of an easement based upon s 3 of the Prescription Act 1832 which recognises a right to light if the windows have enjoyed light for a period of 20 years. Through this law of ‘Ancient Lights’, the English law recognises that there is a right not to have light obstructed unreasonably: Colls v Home and Colonial Stores Ltd [1904] AC 179. In Australia, legislation has abolished the right of light by way of prescription: Conveyancing Act 1919 (NSW) s 179; Property Law Act 1974 (Qld) s 178; Law of Property Act 1936 (SA) s 22; Property Law Act 1958 (Vic) s 195; Property Law Act 1969 (WA) s 121. 25.22 As society seeks alternative sources of energy, local councils may have to address the issue of the right to light as persons with solar panels may not be able to make the most of the panels if the sunlight on the property is affected by a new structure or a growing tree. See, for example, Pt 5 of the Neighbourhood Disputes Resolution Act 2011 (Qld). In California in the United States, the state law protects homeowners’ investment in solar panels, by deeming trees that block the sun from panels as a nuisance.

Riparian rights 25.23

At common law, any interference with the rights of a riparian owner

(the owner of land adjacent to a river or waterway) was actionable as a private nuisance. Legislation now regulates many of the rights of such owners but, generally, does not interfere with the common law right in relation to an increase, for example in flooding brought about by wrongful or tortious conduct by a neighbouring occupier: Grant Pastoral Co Pty Ltd v Thorpe’s Ltd (1953) 54 SR (NSW) 129; see also the analysis by Windeyer J in Gartner v Kidman (1962) 108 CLR 12.

Right of access 25.24 In Jeffrey v Honig [1999] VSC 337, a dispute about the appellant moving cows from one property to another arose, the respondents alleging that their access to the road was blocked and delays were experienced. Hedigan J stated (at [25]): Anyone living in Australia in country areas or visiting there would find the movement of cattle on roads a commonplace, coped with by sensible management of cattle and patient driving by

[page 652] motorists. The countervailing right asserted by the respondents is a right of access by them to and along the road leading to their property and in their property. There can be no doubt that at common law an owner of land adjoining the highway is entitled to access his or her land from the highway and from his or her land to it. That right of access is a private right quite distinct from the right to use the highway. Once he or she is on the highway they enjoy the right as a member of the public in the ordinary way.

See also Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117 at [12], where McMurdo P noted that there is a ‘distinct private right enjoyed by landowners whose property adjoins the highway’. In Broderick Motors Pty Ltd v Rothe (1986) Aust Torts Reports ¶80-059, a disgruntled consumer protested in the form of parking a vehicle outside the car sales yard from which it was purchased with a sign describing it as a

‘bomb’. The court held that this did not interfere with the right of entry and remained within the law (at least for purposes of private nuisance).

Smells and fumes 25.25 The law has long recognised that an occupier of land is entitled to enjoy their land free of unreasonable smells and fumes: Aldred v Benton (1610) 9 Co Rep 57; 77 ER 816 (odours from pig sty); Bamford v Turnley (1862) 3 B & S 62; 122 ER 27 (smells from brick kiln); Domachuk v Feiner (NSWCA, Sheller JA, Giles and Simos AJJA, BC9606851, 28 November 1996, unreported) (offensive smells from compost used for growing mushrooms); Dobson v Thames Water Utilities Ltd [2011] EWHC 3253 (a class action by residents was successful in relation to the odours from a sewerage plant).

Noises and vibrations 25.26 An occupier is entitled to enjoy their land free from unreasonable noise and vibration. In Sturges v Bridgman (1879) 11 Ch D 852, the plaintiff successfully sued in nuisance for the noise and vibration from the use of the defendant’s pestles and mortars in his confectionary business. A Salvation Army brass band, people singing, clapping and shouting praises was held to be a nuisance in McKenzie v Powley [1916] SALR 1. In Cohen v City of Perth (2000) 112 LGERA 234, the noise of the daily run of the rubbish trucks was held to be excessive noise. In Vincent v Peacock [1973] 1 NSWLR 466, the court awarded an injunction to restrain the defendant from singing, shouting, whistling and using unacceptable language, as it interfered with the plaintiffs’ enjoyment of their home. See also Watson v Croft Promo-Sport Ltd [2009] 3 All ER 249 (noise emanating from motor racing on a private racetrack).

Interference with the Protected Right 25.27 Windeyer J pointed out in Hargrave v Goldman (1963) 110 CLR 40 at 59, that in most cases the nuisance is a continuing one but it is not

necessary. The nuisance can be an isolated interference, as with the single escape of metal foil in British Celanese Ltd v A H Hunt (Capacitors) Ltd [1969] 1 WLR 959, or a single explosion of accumulated gas as in Midwood & Co Ltd v Manchester Corporation [1905] 2 KB 597. Davies J in Bonic [page 653] v Fieldair (Deniliquin) Pty Ltd [1999] NSWSC 636, suggested that a one-off occurrence (in that case, accidental damage caused to the plaintiff’s crops by the neighbouring defendant’s aerial spraying of its land) was more appropriately considered according to the ordinary principles of negligence than in private nuisance. 25.28 Where the necessity for recurrence is critical is where the plaintiff is seeking injunctive relief (see 25.69), or where the plaintiff seeks to establish an interference with enjoyment rather than physical damage (see 25.40). 25.29 To give rise to an action in private nuisance, an interference with the plaintiff’s rights of possession must be actual or likely and not merely possible or prospective. 25.30

Traditionally, the courts have made a clear distinction between:

interferences causing material damage; and interferences with the quiet enjoyment of the use of the land. As Lord Westbury stated in St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 at 650–1; 11 ER 1483 at 1486: [I]n matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort … namely, the personal inconvenience and interference with one’s enjoyment.

25.31 The tort exists to protect interests in land, not personal injuries for which negligence as a basis of liability is far better designed: Hunter v Canary Wharf Ltd [1997] AC 655; Transco plc v Stockport Metropolitan Borough Council [2003] 3 WLR 1467; see also Clifford v Dove [2006] NSWSC 314 at [33]. However, the possibility remains of an Australian court recognising personal injury as a reasonably foreseeable consequence of property damage: Benning v Wong (1969) 122 CLR 249 at 318 per Windeyer J.

Material damage 25.32 The damage resulting from the nuisance may be material damage, for example killing trees through noxious copper fumes (St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; 11 ER 1483) or breaking windows with golf balls (Lester-Travers v City of Frankston [1970] VR 2; Challen v McLeod Country Golf Club (2004) Aust Torts Reports ¶81-760) or removing the lateral support for a neighbour’s land: Fennel v Robson Excavations Pty Ltd (1977) 2 NSWLR 486. 25.33 The damage may be material damage to chattels upon the land, for example dust damaging stock during demolition (Harris v Carnegie’s Pty Ltd [1917] VLR 95) or factory emissions damaging clothes hanging outside: Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683. 25.34 Traditionally, the courts have distinguished between material damage caused by a defendant’s failure to act — nonfeasance — and that caused by a defendant’s positive acts — misfeasance. [page 654] 25.35 Nonfeasance Originally, the distinction between misfeasance and nonfeasance was important because an action in nuisance did not extend beyond abstaining from the creation of a nuisance. In Goldman v Hargrave

(1966) 115 CLR 458 at 657, however, the Privy Council reviewed this aspect of the development of nuisance: … it is only in comparatively recent times that the law has recognised an occupier’s duty as one of a more positive character than merely to abstain from creating, or adding to, a source of danger or annoyance. It was for long satisfied with the conception of separate or autonomous proprietors, each of which was entitled to exploit his territory in a ‘natural’ manner and none of whom was obliged to restrain or direct the operations of nature in the interest of avoiding harm to his neighbours.

In Goldman v Hargrave (and see the High Court’s decision in Hargrave v Goldman (1963) 110 CLR 40), the courts were required to determine whether the defendant was liable for the failure to extinguish a fire in a tree when the fire was caused by lightning and later spread to the plaintiff’s property, causing considerable damage. In finding in the plaintiff’s favour, the courts took into account the defendant’s knowledge, skill and resources and the fact that he had made a partial, but ultimately unsuccessful, attempt to extinguish the fire. Goldman v Hargrave was applied in Leakey v National Trust [1980] QB 485, where the defendant, despite knowing of the potential danger, did nothing to prevent soil from a hill on its land falling on to the plaintiffs’ adjacent properties. The Court of Appeal held that the principle, which in Goldman had been applied to the spread of fire, applied also to a slip of soil naturally on the defendant’s land. In the leading judgment, Megaw LJ said (at 526): The defendant’s duty is to do that which it is reasonable for him to do. The criteria of reasonableness include, in respect of a duty of this nature, the factor of what the particular man — not the average man — can be expected to do, having regard, amongst other things, where a serious expenditure of money is required to eliminate or reduce the danger, to his means. … But this can only be in the way of a broad, and not a detailed, assessment; and, in arriving at a judgment on reasonableness, a similar broad assessment may be relevant in some cases as to the neighbour’s capacity to protect himself from damage, whether by way of some form of barrier on his own land or by way of providing funds for expenditure on agreed works on the land of the defendant.

See also Stockwell v Victoria [2001] VSC 497, where the defendant state was found liable, through its employees, for its failure to prevent the attacks on

the plaintiff’s sheep by wild dogs living in an area under the state’s control. As Gillard J stated (at [359]–[360]): There were employees of the Department who were authorised to manage, protect and control the Reference Area … I find that although the said employees were not responsible for creating the nuisance, nevertheless, from 1 July 1989 through to July 1996, they had knowledge of its existence and suffered the nuisance to continue despite the strong protestations and representations of the plaintiff. Further, I find that the said employees knew or should have known, as reasonable persons, that it was foreseeable that if the hazard was not eradicated or minimised, it could cause damage to the plaintiff’s land.

25.36 Misfeasance When material damage is the result of misfeasance (a positive act causing harm) on the defendant’s part, the traditional view has been that the defendant was strictly liable for the results of that misfeasance — it was considered irrelevant that the defendant took all reasonable care and skill to prevent the thing complained of from [page 655] being a nuisance: St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; 11 ER 1483; Rapier v London Tramways Co [1893] 2 Ch 588 at 600. 25.37 This traditional view was challenged by the House of Lords in Sedleigh-Denfield v O’Callaghan [1940] AC 880. In Sedleigh-Denfield, Lord Wright rejected the notion that liability for a nuisance is, at least in modern law, a ‘strict or absolute liability’: at 904–5. Support for the view that liability for misfeasance causing material damage will usually involve fault of some kind can be found in the decision in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound (No 2)) [1967] 1 AC 617 which held that, similar to a negligence action, there is no liability for nuisance unless the consequences, for which the plaintiff seeks to make the defendant liable, were reasonably foreseeable. See also Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264; [1994] 1 All ER 53.

25.38 In Australia, Lord Wright’s comments in Sedleigh-Denfield were cited with approval by the High Court in Elston v Dore (1982) 149 CLR 480 and support for the view that fault of some kind is necessary to support an action in nuisance causing material damage can also be found, by analogy, with the High Court decision in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520. In Burnie, the court held that the tort based on the rule in Rylands v Fletcher (1866) LR 1 Ex 265; (1868) LR 3 HL 330, should be abolished in Australia. The abandonment of the rule in Rylands v Fletcher means that a plaintiff must establish fault on the part of the occupier of the land who has introduced, retained or done on their land something dangerous, which is likely to cause damage if it escapes — the occupier will no longer be strictly liable for the consequences of the escape of the dangerous thing. In England, in Transco plc v Stockport Metropolitan Borough Council [2003] 3 WLR 1467, however, the House of Lords unanimously rejected abolishing the rule in Rylands v Fletcher. In doing so, Lord Walker of Gestingthorpe, at [110], referred to the comments of Lord Lloyd of Berwick in Hunter v Canary Wharf Ltd [1997] AC 655 at 695, where the latter identified three kinds of private nuisances: … (1) nuisance by encroachment on a neighbour’s land; (2) nuisance by direct physical injury to a neighbour’s land; and (3) nuisance by interference with a neighbour’s quiet enjoyment of his land.

Lord Walker noted that in regard to the first and third kinds of nuisance ‘[t]here has … been some assimilation of the principles of nuisance and negligence’: at [109]. In regard to the second — which he considered included the rule in Rylands v Fletcher — his Lordship, in agreement with the other members of the court, considered that there were still circumstances which justified the retention of the rule in Rylands v Fletcher. 25.39 The question of whether the Australian High Court will abandon strict liability for a nuisance causing material damage to a neighbour’s land

remains to be addressed by the court. However, in the joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 at [16], they refer: … to a line of authority marshalled by the English Court of Appeal in Marcic v Thames Water Utilities Ltd [[2004] 2 AC 42]. This indicates that a body such as the Council is not, without

[page 656] negligence on its part, liable for a nuisance attributable to the exercise of, or failure to exercise, its statutory powers.

In Sutherland Shire Council v Becker [2006] NSWCA 344, the New South Wales Court of Appeal considered fault in the context of a nuisance action brought against the Council as a third party responsible for indirectly causing material damage to the landfill which constituted part of the plaintiff’s land. The slippage occurred when landfill on the plaintiff’s neighbour’s property became saturated by water overflowing from the defendant Council’s drainage pipeline system. The collapse of the landfill on the neighbour’s land removed the lateral support for the plaintiff’s landfill which consequently collapsed, causing the plaintiff financial loss. The plaintiff’s action in nuisance was unsuccessful because of her failure to prove that the Council was negligent in the design and/or maintenance of the drainage pipe system. Significantly, in Becker, the plaintiff’s action was found to be based upon the private law of nuisance rather than the exercise or failure to exercise a statutory power: at [114].

Interference with Enjoyment 25.40 In Walter v Selfe (1851) 4 De G & Sm 315 at 322; 64 ER 849 at 852, it was stated: … the inconvenience the court must protect against must not be one of mere delicacy and fastidiousness, but must be an inconvenience materially interfering with the ordinary comfort

physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain, sober and simple notions among English people.

To be actionable in private nuisance, an interference with the use and enjoyment of land that does not result in material damage, must be both a substantial and an unreasonable interference. See St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642 at 654; 11 ER 1483 at 1488; Southwark London Borough Council v Tanner [1999] 4 All ER 449 at 464.

Substantial 25.41 In Munro v Southern Dairies Ltd [1955] VLR 332 at 334, Scholl J indicated: … there must be a substantial degree of interference with the comfort and convenience of the occupier who complains of a private nuisance, or with some other aspect of the use or enjoyment of his land. The interference must be so substantial as to cause damage to him.

Nevertheless, in that case, it was held that the loss of a single night’s sleep caused by the noise of the dairy could amount to a substantial interference. In Onus v Telstra Corporation Ltd [2011] NSWSC 33, the plaintiff was successful in establishing that the building of the defendant’s mobile network telecommunications tower would be an interference with the enjoyment of his land. Permission had been given to the defendant to install the tower in close proximity to the plaintiff’s land. The plaintiff used the land as an airfield, catering to light aircraft, helicopters, balloonists and parachutists. It was argued by the plaintiff that the installation of the tower would jeopardise the safety of pilots and passengers who used the airfield. The defendant argued that there was no substantial interference as ‘the plaintiff’s complaint [was] confined to the users of airspace and to their inconvenience in travelling to his land’: at [150]. Price J held that the effect of the tower, namely the diminished utility of the land for pilot training and the loss of revenue from reduced aircraft landings, amounted to a substantial interference: at [150].

[page 657]

Unreasonable 25.42 In determining whether interference occasioning substantial loss of enjoyment is unreasonable, the courts start from a premise of ‘give and take’: Bamford v Turnley (1862) 3 B & S 66; 122 ER 27; Kidman v Page [1959] Qd R 53. Each individual impliedly consents to reasonable ‘give and take’ so that interferences which are trivial are treated as part of the incidents of everyday life: Stormer v Ingram (1978) 21 SASR 93. It is not a question of whether what the defendant is doing is unreasonable, but whether the effect of the defendant’s conduct upon the plaintiff’s use and enjoyment of the land is unreasonable. In Metropolitan Properties v Jones [1939] 2 All ER 202 at 205, it was explained: If my neighbour is going to put some bookcases in his house, or put in a new fireplace, for a day or two I shall be exposed, no doubt, to a considerable disturbance … but the law does not regard that as a nuisance. A man may be doing that which is necessary for his house or his own comfort, just as I may do the same thing in my own house the following month. It is one of those things which one has to put up with.

To determine whether the interference with use of enjoyment is unreasonable, the court must balance the competing interests of the parties. In determining whether an interference is unreasonable, regard may be had to a number of factors. 25.43 Locality Locality may determine which activities are reasonable. Industrial activities in a residential area may be unreasonable but reasonable in a predominantly industrial area: Sturges v Bridgman (1879) 11 Ch D 852; Clarey v Principal and Council of the Women’s College (1953) 90 CLR 170; [1953] ALR 850; Kidman v Page [1959] Qd R 53. Veale J stated in Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145 at 151; [1961] 1 WLR 683 at 692: In an urban area, everyone must put up with a certain amount of discomfort and annoyance from the activities of neighbours, and the law must strike a fair and reasonable balance between

the right of the plaintiff on the one hand to the undisturbed enjoyment of his property, and the right of the defendant on the other hand to use his property for his own lawful enjoyment.

In Sturges v Bridgman, the defendant confectioner had used pestles and mortars in the back of his premises for about 20 years. The noise and vibration did not bother the plaintiff, a doctor whose consulting rooms were in the adjacent building. The plaintiff then built an extra consulting room at the back of his premises and found that the noise and vibration of the defendant’s pestles and mortars started to interfere with the use of his new consulting room, so he sued the defendant in nuisance. The Court of Appeal held for the plaintiff. Thesiger J, with whom James and Baggallay LJJ agreed, said (at 865): [W]hether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey …

25.44 The fact that the locality has changed over time will not prevent the interference being unreasonable at the time the action is brought. In Munro v Southern Dairies Ltd [1955] [page 658] VLR 332, the interference caused by the defendant’s stabling of horses was actionable despite the defendant having done so since 1934. Also, compliance with planning legislation does not necessarily prevent the activity from being unreasonable: Hunter v Canary Wharf Ltd [1997] AC 655; Wheeler v J J Saunders Ltd [1996] Ch 19. 25.45 Time Time will be a factor in determining reasonableness, particularly interferences involving noise. Loud noise at night or in the early morning may be unreasonable but reasonable at other times during the day: Halsey v Esso Petroleum Co Ltd [1961] 2 All ER 145; [1961] 1 WLR 683; Daily Telegraph Co Ltd v Stuart (1928) 28 SR (NSW) 291; Haddon v Lynch [1911]

VLR 230; Stoakes v Brydges [1958] QWN 5; McKenzie v Powley [1916] 5 ALR 1. For example, in Wherry v K B Hutcherson Pty Ltd (1987) Aust Torts Reports ¶80-107, the defendant was engaged in construction at a site in the Sydney CBD. The work caused noise and vibration which affected the offices of the plaintiff solicitor. The court held that the noise and vibration constituted a nuisance during ordinary office hours, but did not constitute a nuisance outside those hours. The plaintiff was granted an injunction restraining the defendant from making noise between the hours of 9.00 am– 1.00 pm, and between 2.00 pm–5.00 pm. 25.46 Duration The duration of an interference clearly has an impact on the question of whether it is reasonable. How long each day and for how many days and over what period of time are all relevant considerations: Sedleigh-Denfield v O’Callaghan [1940] AC 880; Gartner v Kidman (1962) 108 CLR 12. Noise for a few days would be different to noise for over two months. Similarly, noise of lesser duration can be unreasonable at night when compared to the same noise of longer duration during the day: Munro v Southern Dairies Ltd [1955] VLR 332. However, interferences of long duration are not necessarily unreasonable, as noted in Andreae v Selfridge & Co Ltd [1938] Ch 1 at 5, when the interferences arise from construction work, ‘everybody has to put up with a certain degree of discomfort’. 25.47 Nature of the activities The nature of the activities will also be relevant in determining what is reasonable: Bamford v Turnley (1862) B & S 66; 122 ER 27. In a complex, modern society, there are many permutations of conduct which test out the reasonableness of activities. For example, unionists have long claimed the right to picket, but a picket line which interferes with the occupier’s right of free access to property is unreasonable and a nuisance: Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383. Similarly, the animal liberationist demonstration forcing intending circus patrons to walk a gauntlet which put them in fear for

their safety in Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51, amounted to a nuisance. See also McCoy Constructions Pty Ltd v Dabrowski [2001] QSC 413. 25.48 It is possible that the defendant is engaged in an activity that is in the public’s interest, or is for the good of society. However, the social utility of the activities does not render the alleged interference as reasonable. In Munro v Southern Dairies Ltd [1955] VLR 332, the defendant was delivering milk, an activity which was of some benefit to society, but delivering the milk by horses which were not stabled was found to be unreasonable. See also Cohen v City of Perth (2000) 112 LGERA 234. [page 659] 25.49 Availability of alternative means Although considering the availability of reasonably practicable alternatives is looking at the defendant’s behaviour rather than the effect upon the plaintiff, as a court will balance rights between the parties, evidence of reasonable alternatives will be considered. If there are alternatives which are reasonably practicable and open to the defendant, this may render the means used unreasonable (McMahon v Catanzaro [1961] QWN 22), for example in Wherry v K B Hutcherson Pty Ltd (1987) Aust Torts Reports ¶80-107, where the building work could be restricted to outside business hours. In Cohen v City of Perth (2000) 112 LGERA 234, the plaintiff lived in an inner city suburb in an apartment of mixed commercial and residential premises. He sued for the interference caused by the excessive noise caused almost daily by the defendant’s garbage trucks. Roberts-Smith J held that, although the Council had made some effort to accommodate the plaintiff’s complaints, he was not satisfied that all reasonable steps had been taken to ensure that collections took place when

the excessive noise would create the least practicable interference with amenity. 25.50 When assessing the reasonableness of alternatives, the cost of alternative means may be a relevant factor in determining reasonableness: Painter v Reed [1930] SASR 295 at 304. 25.51 Abnormal sensitivity Since the basis of an action in private nuisance is the unreasonable interference caused by the defendant’s act or omission, it follows that an action may be defeated on the grounds that the plaintiff’s abnormal sensitivity was the real cause of the plaintiff’s loss of enjoyment: Munro v Southern Dairies Ltd [1955] VLR 332 at 335. In Robinson v Kilvert (1889) 41 Ch D 88, the defendant rented part of their premises to the plaintiff who manufactured twine and paper. Subsequently, the defendant, as part of its own business, installed heating equipment in another part of the building. The additional heat had an adverse effect on the plaintiff’s brown paper manufacturing process. The plaintiff was unsuccessful because the degree of heat could not be regarded as noxious and the adverse effect was peculiar to its type of business. Lopes LJ stated (at 96): A man who carries on an exceptionally delicate trade cannot claim because it is injured by his neighbour doing something lawful on his property, if it is something which would not injure anything but an exceptionally delicate trade.

See also Marsh v Baxter [2015] WASCA 169, where the Court of Appeal of Western Australia held the fact that the appellants put their land to an abnormally sensitive use, did not mean that they could ‘impose limitations ion the operations if their neighbours to an extent greater than would otherwise be the case’: at [785]. In that case, the appellants suffered pure economic loss when their organic farm was decertified after their crops were contaminated by the respondent’s canola crop. 25.52 Motive Although intention is not an element of nuisance, the motive of the defendant may be relevant as part of the give and take principle:

Christie v Davey [1893] 1 Ch 316; Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468; Fraser v Booth (1949) 50 SR (NSW) 113; Hargrave v Goldman (1963) 110 CLR 40; Goldman v Hargrave (1966) 115 CLR 458 (PC); Stoakes v Brydges [1958] QWN 5; Pratt v Young (1952) 69 WN (NSW) 214. [page 660] In Christie v Davey, the defendant claimed that when they were knocking on the party wall between their residence and the plaintiff’s, and ‘beating trays, whistling, shrieking, and imitating what was being played’ as the plaintiff gave music lessons and her family played musical instruments, they were simply amusing themselves with any musical instrument they chose. North J held (at 475): In my opinion the noises which were made in the Defendant’s house were not of a legitimate kind. They were what, to use the language of Lord Selborne in Gaunt v Fynney [(1872) LR 8 Ch App 8], “ought to be regarded as excessive and unreasonable”. I am satisfied that they were made deliberately and maliciously for the purpose of annoying the Plaintiffs. If what has taken place occurred between two sets of persons both perfectly innocent, I should have taken an entirely different view of the case. But I am persuaded that what was done by the Defendant was done only for the purpose of annoyance, and in my opinion it was not a legitimate use of the Defendant’s house to use it for the purpose of vexing and annoying his neighbours.

This passage was quoted with approval by Macnaghten J in Hollywood Silver Fox Farm, where the plaintiff was a silver fox breeder and erected a large sign to that effect on its land. The defendant was about to develop adjoining land as a building estate and repeatedly requested the plaintiff to remove the sign. Ultimately, he threatened disruption during the fox breeding season by firing shots near the breeding pens. He caused his son to do just that and the plaintiff was granted damages and an injunction. Therefore, if the nuisance is committed with the intention of causing harm to the plaintiff, what may be reasonable may become unreasonable, even if the plaintiff is of abnormal sensitivity: Christie v Davey; Hollywood Silver Fox Farm Ltd v Emmett.

In contrast, in Fraser v Booth (1949) 50 SR (NSW) 113, the defendant was held not to be liable in nuisance for letting off firecrackers with the intention of scaring the plaintiff’s homing pigeons. The court found that the defendant’s motivation was that she could no longer tolerate the commotion caused by the birds above her house. The court held that the defendant’s actions were found not to be malicious or spiteful acts done simply to cause damage to the plaintiff; they had been carried out while under the stress of annoyance from an existing nuisance (the keeping of the pigeons), in the hope it would alleviate the problem.

Damage 25.53 In nuisance, the damage is either the material damage to the land itself or the chattels upon it, or the interference with the plaintiff’s use and enjoyment of the land: Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245; Oldham v Lawson (No 1) [1976] VR 654. The damage suffered by the plaintiff must have been caused by the nuisance and be a reasonably foreseeable consequence of the nuisance: Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486. See also Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (Wagon Mound (No 2)) [1967] AC 617 at 640, where Lord Reid stated: It is not sufficient that the injury suffered by the [plaintiff] … was the direct result of the nuisance if that injury was in the relevant sense unforeseeable.

In Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, the inadequate provision for stormwater by the Council led to a pond being created which became the [page 661] habitat of a protected species, Wallum froglets. The property owner sued in

nuisance as due to the protected species, the development approval of the land included a condition to protect the habitat, resulting in a decrease in the value of the land. The court held that the development of a Wallum froglet habitat was not reasonably foreseeable in the circumstances: at [261].

Onus of Proof 25.54 Once the plaintiff has established title to sue and a prima facie interference with the use and enjoyment of the land or related rights, it is for the defendant to demonstrate reasonableness and/or any defence: Kraemers v Attorney-General (Tas) [1966] Tas SR 113; Radstock Co-operative & Industrial Society Ltd v Norton-Radstock Urban District Council [1968] Ch 605.

Defences Statutory authority 25.55 Many activities which might give rise to a common law action in nuisance are authorised by statute. The defence of statutory authorisation recognises that many activities which are essential or desirable for society cannot be carried out without creating a nuisance under the common law. 25.56 In establishing the defence, the critical question is whether the legislature intended the statute to authorise activities which, at common law, would constitute a nuisance. In Allen v Gulf Oil Refining Ltd [1981] AC 1001 at 1011, Lord Wilberforce stated: We are here in the well charted field of statutory authority. It is now well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance. The right of action is taken away (see Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171, 215 per Lord Cairns). To this there is made the qualification, or condition, that the statutory powers are exercised without “negligence” — that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation

with all reasonable regard and care for the interests of other persons (see Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, 455 per Lord Blackburn). It is within the same principle that immunity from action is withheld where the terms of the statute are permissive only, in which case the powers conferred must be exercised in strict conformity with private rights (see Metropolitan Asylum District [Managers] v Hill (1881) 6 App Cas 193).

25.57 The burden lies on those alleging the intention to take away the private right to prove that such an intention appears from the statute: Metropolitan Asylum District Managers v Hill (1881) 6 App Cas 193; Allen v Gulf Oil Refining Ltd [1981] AC 1001; Lester-Travers v City of Frankston [1970] VR 2; Cohen v City of Perth (2000) 112 LGERA 234; Melaleuca Estate Pty Ltd v Port Stephens Council [2006] NSWCA 31. In Cohen v City of Perth, the defendant acknowledged that, in carrying out its authorised garbage collection duties, it had exceeded the noise levels specified in the relevant noise regulations. It, nevertheless, argued that upon the true construction of the subject, scope [page 662] and purpose of the Act and regulations, the legislation made comprehensive and exhaustive provision for the remedies that may be sought in respect of noise emissions which exceeded the statutorily prescribed standard. RobertsSmith J rejected this interpretation of the legislation and found that the plaintiff should be successful, inter alia, in his actions for private and public nuisance. 25.58 The defence requires that the nuisance is an ‘inevitable consequence of the authorised undertaking’: Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 at [16]; Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287 at [121]. However, a distinction is made between statutory provisions that require an activity to be carried out and those that

permit an activity to be carried out: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287 at [122]. If the statute requires the act to be carried out, any resulting nuisance will be authorised unless the nuisance was created by the negligence of the defendant: Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660 at [16]; Benning v Wong (1969) 122 CLR 249 at 324–37. Therefore, if the defendant exercised reasonable care in carrying out the required and authorised activity, the defence will succeed. In contrast, if the nuisance is created by an act permitted by statute, for the defence to apply the defendant must prove that the activity could not be carried out without creating the nuisance and there was no negligence involved: Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287 at [123].

Contributory negligence 25.59 It is possible that a plaintiff may sue in negligence and nuisance for the same interference. Therefore claims of contributory negligence are allowed in respect of nuisance. Contributory negligence on the part of the plaintiff provided a complete defence under the common law, but now under the apportionment legislation it will only lead to a reduction in damages: Civil Law (Wrongs) Act 2002 (ACT) s 102; Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9(1); Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 16(1); Law Reform Act 1995 (Qld) s 10(1); Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) s 7; Wrongs Act 1954 (Tas) s 4(1); Wrongs Act 1958 (Vic) s 26(1); Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) s 4(1). See also Almeroth v W E Chivers & Sons Ltd [1948] 1 All ER 53; Trevett v Lee [1955] 1 WLR 113; [1955] 1 All ER 406.

Easement and prescription

25.60 Under the common law, a defendant may claim a prescriptive right to continue a nuisance if they can establish that they have committed the interference for more than 20 years: Sturges v Bridgman (1879) 11 Ch D 852; Miller v Jackson [1977] QB 966. This is on the basis that the defendant’s interference may amount to an easement, and the right has been acquired as if with the permission of the plaintiff. Prescriptive rights in respect of Torrens land are recognised in Tasmania, Victoria and Western Australia. In New South [page 663] Wales and South Australia, it has been held that in certain circumstances a prescriptive right may arise. In the Australian Capital Territory, the Northern Territory and Queensland, the position is uncertain.

Consent 25.61 There is no implied consent by a plaintiff who has come to the nuisance: see 25.64. To prove consent as a defence, the defendant must prove that the plaintiff consented to the interference.

Acts of another 25.62 In Sedleigh-Denfield v O’Callaghan [1940] AC 880, it was noted by the court that it was a defence to a nuisance action if the interference complained of was due to an act of God. In the same case it was held that a defendant would not be liable if the nuisance was created by a third party and the defendant had no knowledge (actual or constructive) of the nuisance: see 25.8.

Necessity 25.63

As it is in trespass, if the defendant created the nuisance when acting

to prevent a threat of imminent harm, the defence of necessity will apply: Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218: see 6.39.

What is not a defence 25.64 It is no defence to an action in nuisance that the plaintiff ‘came to the nuisance’: Bliss v Hall (1838) 4 Bing (NC) 183; 132 ER 758; Sturges v Bridgman (1879) 11 Ch D 852. In Miller v Jackson [1977] QB 966, it was held to be no defence that the plaintiffs had moved into a house adjacent to a cricket field. It made no difference that the houses had been built around the existing cricket field. See also Lawrence v Fen Tigers Ltd [2011] EWHC 360 (QB). 25.65 A defendant cannot defeat a claim in nuisance by jus tertii (someone other than the plaintiff has better title to the land: see 6.45): South Australian Co v Corporation of the City of Port Adelaide [1914] SALR 16; Paxhaven Holdings Ltd v Attorney-General [1974] 2 NZLR 185. 25.66 The fact that the activities of the defendant are for the benefit of society does not provide a defence: Munro v Southern Dairies Ltd [1955] VLR 332. It is no defence that the defendant’s act would not amount to nuisance were it not for others doing the same thing (Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149) or that the interference is of common occurrence in the locality: St Helen’s Smelting Co v Tipping (1865) 11 HL Cas 642; 11 ER 1483.

Remedies 25.67 The remedies available for nuisance are the self-help remedy of abatement, injunction and damages. [page 664]

Abatement 25.68 The law allows a plaintiff to abate the nuisance as a self-help remedy, abatement being the ‘summary removal or remedying of a nuisance by the person injured without having recourse to legal proceedings’: Farley & Lewers Ltd v Attorney-General (NSW) (1962) 63 SR (NSW) 814 at 817. However, abatement must be used with caution to ensure the plaintiff is not exposed to actions in trespass for excessive exercise of the right when removing the nuisance: Lemmon v Webb [1895] AC 1; Traian v Ware [1957] VR 200; Mayor, Alderman and Burgesses of the Borough of Colchester v Brooke (1847) 7 QB 339. In Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 899–900, it was stated: The remedy of abatement inevitably tends to disorder, and has been on many occasions spoken of with discouragement. It affords no remedy at all for damage actually done; it never was intended for any purpose but to prevent repetition; or in some cases, it may be, to prevent damage before it occurred.

In Lord v McMahon [2015] NSWSC 1619 at [192], the limits on the remedy of abatement were explained: The law of abatement of nuisance is clear. There is no privilege of entry to abate a nuisance unless a mandatory injunction would be issued to achieve the same result. Otherwise a person would be able to attain a particular end by acts of self-redress, which end might otherwise have been denied if the person had recourse to judicial process. The law shows a strong tendency to deprecate self-help and insists on notice as a pre-requisite: Lagan Navigation Co v Lambeg Bleaching Dyeing and Finishing Co [1927] AC 226. But no notice is necessary if the abatement does not involve entry onto the other person’s land, or is required in an emergency: Lemmon v Webb [1894] 3 Ch 1; [1895] AC 1 and Jones v Williams (1843) 11 M & W 176; 152 ER 764.

Injunction 25.69 As a nuisance infringes the plaintiff’s rights, it is usual that an injunction will be granted: Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 at 181. To order an injunction, the court must be convinced that an award of damages would not be an adequate remedy, for example if the nuisance is continuing. As this remedy is discretionary, public interest and other factors may have to be considered in

the exercise of the court’s discretion: Miller v Jackson [1977] QB 966; Cohen v City of Perth (2000) 112 LGERA 234. 25.70 A court may award a quia timet injunction (threatened or potential nuisance); an interlocutory injunction (to restrain the act, pending determination of the issue); or mandatory injunction (to remove the nuisance). In Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 at [32]–[34], in regard to the defendant’s picketing of the plaintiff’s mining operations, Chesterman J stated: In the event that the offending conduct did recur the plaintiffs would suffer substantial disruption to their businesses. As well as lost production, which may or may not be compensable in damages, severe distress would be occasioned to individual employees subjected to further

[page 665] bouts of bullying. The plaintiffs seek to protect not just their economic interests but the basic individual rights of their employees to travel freely along a public highway and to go to work without fear. There is no countervailing factor. The injunction will not cause any inconvenience or hardship to the defendants. They will not be prevented from engaging in any lawful protest or from expressing their disapproval of the manner in which the plaintiffs conduct business. The injunction will only prevent the defendants from doing what they have no right to do, closing a public road, and impeding the ordinary passage of workers intent on earning a livelihood. Also relevant to the exercise of the discretion is the point that an injunction though permanent in form may be set aside at any time. … The injunction will not necessarily operate as a perpetual restraint against the defendants. Should future circumstances indicate that an injunction is no longer appropriate they may apply to have it set aside. The risk that the injunction may cause some particular hardship is thereby diminished.

See Jackson v Normanby Brick Co (1899) 1 Ch 438; Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287; Sturges v Bridgman (1879) 11 Ch D 852;

Adams v Shire of Taringa [1927] QSR 163; Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660.

Damages 25.71 Common law damages are available for damage resulting from the nuisance: Grosvenor Hotel Company v Hamilton [1894] 2 QB 836 at 840. As damage in nuisance may be material damage to chattels (Moss v Christchurch Rural District Council [1925] 2 KB 750), to the land or an interference with a recognised right, compensatory damages are awarded. At common law, the remedy of damages is only available once damage has occurred. However, damages are available also in equity, in lieu of, or in addition to, an injunction: Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287 at 322–3. Accordingly, since it is possible to obtain a quia timet injunction to restrain a threatened nuisance, it is possible to obtain equitable damages where damage has not yet occurred. 25.72 The damage compensated must be the foreseeable consequence of the nuisance. Therefore, it may be possible to be compensated for personal injury (Benning v Wong (1969) 122 CLR 249) and if the land affected operates a business, a claim for loss of profits may be made: see Hunter v Canary Wharf Ltd [1997] AC 655; Robson v Leischke (2008) 72 NSWLR 98 at [216]. See also Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348 at [9], where the plaintiffs claimed damages for loss of opportunity to develop the land affected by the nuisance but were unsuccessful (affirmed in Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2016] VSCA 187). 25.73 Material damage As the aim of compensatory damages is to place the plaintiff in the position as if no tort had been committed (Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185), there is no set rule as to how damages for material damage to land are to be assessed. In Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36 at 39, it was held, ‘proper assessment is determined by the circumstances of the case and by the

overriding requirements of what is reasonable’. See also Fish Steam Laundry Pty Ltd [page 666] v Col Johnson Electrics Pty Ltd [1992] 2 Qd R 585 at 591, where it was noted that damages must be assessed in a realistic way. 25.74 Damages may be awarded to represent the decrease in the value of the land (Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245) or the cost of reinstatement: Jones v Shire of Perth [1971] WAR 56. Evidence as to the cost of the reinstatement in comparison to the decrease in value of the land is relevant, as well as the nature of the damage. In Evans v Balog; Evans v Progress & Securities Pty Ltd [1976] 1 NSWLR 36, the defendant’s nuisance had the effect that the plaintiff’s home was lost. Despite the fact that the cost of reinstatement was greater than the decrease in value of the land, the court awarded the cost of reinstatement finding that this was reasonable in the circumstances. Samuel JA stated (at 40): The disproportion in question in cases of this kind are not always to be revealed by arithmetical comparison. The cost to a defendant of competing measures is a significant factor. But it is but one ingredient in the calculation of whether the plaintiffs’ claim is reasonable or not. There are cases, and this, in my opinion, is one, where the nature of the plaintiffs’ loss is such that there is only one mode of fairly repairing it. If that turns out to be more expensive than another, the wrongdoer has no one but himself to blame.

If reinstatement of the property is not possible, the court will award the decrease in the value: see Fish Steam Laundry Pty Ltd v Col Johnson Electrics Pty Ltd [1992] 2 Qd R 585 at 588 per Dowset J; Winky Pop Pty Ltd v Mobil Refining Australia Pty Ltd [2015] VSC 348. 25.75 Use and enjoyment of land In respect of interferences with use and enjoyment of land, damages are assessed with reference to the inconvenience suffered by the plaintiff. In Bone v Seale [1975] 1 All ER 787 at

793; [1975] 1 WLR 797 at 803, it was observed, ‘[i]t is difficult to find an analogy to damages for interference with the enjoyment of property’. In that case, the plaintiffs suffered from the odours from the defendants’ pig farm and the court granted an injunction and awarded damages for the loss of amenity. Scarman LJ stated (at All ER 795; WLR 805): … when one is removed from the world of pecuniary loss and is attempting to measure damages for non-pecuniary loss, an element in reasonableness is the fairness of the compensation to be awarded. There must be moderation; some attention must be paid to the rights of the offending defendant as well as to the rights of the injured plaintiff.

As the interference is with the use and enjoyment of land, damages are not awarded for any decrease in the value of the land unless there is material damage: McKenzie v Powley [1916] SALR 1 at 21.

Limitation Period 25.76 The relevant limitation period will depend upon the type of damage suffered by the plaintiff. If there is material damage to the property, the plaintiff must commence the nuisance action within six years of the damage being suffered, unless it is in the Northern Territory where the limitation period is three years: Limitation Act 1985 (ACT) s 11(1); Limitation Act 1969 (NSW) s 14(1)(b); Limitation Act 1981 (NT) s 12(1)(b); Limitation of [page 667] Actions Act 1974 (Qld) s 10(1)(a); Limitation of Actions Act 1936 (SA) s 35(c); Limitation Act 1974 (Tas) s 4(1)(a); Limitation of Actions Act 1958 (Vic) s 5(1)(a); Limitation Act 2005 (WA) s 13(1). However, many cases of nuisance involve a continuing interference. This allows the plaintiff to commence the action at any time during the continuance and recover for all damage up to that time: Earl of Harrington v Derby Corporation [1905] 1 Ch 205. If the plaintiff is claiming for personal

injury, the nuisance action must be commenced within three years of the damage: Limitation Act 1985 (ACT) s 16B(2); Limitation Act 1969 (NSW) ss 18A and 50C; Limitation Act 1981 (NT) s 12(1)(b); Limitation of Actions Act 1974 (Qld) s 11; Limitation of Actions Act 1936 (SA) s 36; Limitation Act 1974 (Tas) s 5(1); Limitation of Actions Act 1958 (Vic) s 5(1AA); Limitation Act 2005 (WA) s 13(1). See Chapter 14.

3

Public Nuisance

25.77 In Wallace v Powell (2000) 10 BPR 18,481 at [32], Hodgson CJ described a public nuisance as ‘an act or omission which materially affects the reasonable comfort and convenience of the life of a class of the public’. The elements of the tort of public nuisance are: the plaintiff must have title to sue; there must be a substantial and unreasonable interference with a public right; and damage. As with private nuisance, consideration as to the proper defendant is necessary. See also R v Rimmington [2006] 1 AC 459 at [7] and [36], where it was confirmed that the crime and tort of public nuisance have the same elements.

Title to Sue 25.78 Since the tort of public nuisance is concerned with the rights of the public in general, it is usually the Attorney-General who seeks relief, as a representative of the public interest. In Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 191, Lord Denning stated that the test is whether the 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 on his or her own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large.

25.79 The Attorney-General may consent to a relator action, whereby a private individual brings an action in the name of the Attorney-General, for example Attorney-General; Ex rel Pratt v Brisbane City Council [1988] 1 Qd R 346. It is possible for an individual member of the public to bring a private action. They need not have an interest in land that is affected by the public nuisance, but must establish that, as a result of the defendant’s interference with a public right, the individual has suffered particular damage over and above that suffered by the general public: Walsh v Ervin [1952] [page 668] VLR 361; McFadzean v Construction, Forestry, Mining and Energy Union (2007) 20 VR 250 at 284; Onus v Telstra Corporation Ltd [2011] NSWSC 33 at [130]. In Walsh v Ervin, the plaintiff and defendant were farmers who owned land divided by a roadway. The defendant placed some fences on the roadway and ploughed up a portion of the road to plant crops. This caused interference to the plaintiff’s use of the road and access to a portion of his property. In finding for the plaintiff, Scholl J summarised the applicable principles: The conclusions of law which I have above stated on this branch of the case may now be summarized: 1.

An individual person or corporation cannot sue in his or its own name in respect of a nuisance to a public highway, except for “particular damage” occasioned to him or it thereby.

2.

“Particular damage” is not limited to “special damage” (in the sense of actual pecuniary loss).

3.

It may consist of proved general damage, for example, inconvenience and delay — as in the present case — provided that it is substantial, that it is direct and not consequential, and that it is appreciably greater in degree than any suffered by the

general public: at 371.

25.80 Substantial inconvenience, greater in extent than that suffered by the general public, may be sufficient to be particular damage: Harvey v Shire of St Arnaud (1879) 5 VLR 315; Walsh v Ervin [1952] VLR 361. Physical injury (Castle v St Augustine’s Links Ltd (1922) 38 TLR 615) and the loss of custom to business premises may also be sufficient: Lyons, Sons & Co v Gulliver [1914] 1 Ch 631.

Who Can be Sued? 25.81 Responsibility for the creation of a public nuisance devolves upon anyone who creates it, whether or not the person is in occupation of the land from which it emanates: Kraemers v Attorney-General (Tas) [1966] Tas SR 113; Ku-ring-gai Municipal Council v Bonnici [2002] NSWCA 313. As public nuisance is not limited to protection of rights associated with the occupation of land, the interference may not involve the defendant’s occupation of land.

Owner and occupier of land 25.82 A landowner or occupier can be liable in public nuisance if they created the nuisance or if they continued or adopted the nuisance: Lynch v Mudgee Shire Council (1981) 46 LGRA 204; Sedleigh-Denfield v O’Callaghan [1940] AC 880 at 894: see 25.8. An occupier may assume responsibility for nuisance-creating conduct of third parties both on the land (White v Jameson (1874) LR 18 Eq 303) or outside it, if the landowner has attracted them there: see R v Moore (1832) 3 B & Ad 184; 110 ER 68.

Landlord and tenant 25.83 A landlord of property from where the public nuisance emanates will not be liable unless they consented to the activity or the nuisance is the result of the purpose for which

[page 669] the property was let. Otherwise the tenant creating the nuisance will be liable: Williamson v Friend (1901) 1 SR (NSW) (Eq) 133.

Public authority 25.84 The common law has traditionally held that public authorities are not responsible for public nuisances arising from nonfeasance, that is, a failure to act: East Suffolk Catchment Board v Kent [1941] AC 74. Thus, drainage authorities were not accountable for the inadequacy of pre-existing sewers in Essendon Corporation v McSweeney (1914) 17 CLR 524. If the interference with the public right arises from an act of misfeasance, then it is possible the authority will be liable in public nuisance. However, the tort of public nuisance by public authorities acting as road authorities has been subsumed by negligence: Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145. Originally, a public authority’s duty to maintain highways was based in nuisance not negligence, and highway or road authorities (all bodies responsible for the construction and maintenance of public roads) were immune from suit for a failure to maintain public roads: Sydney Municipal Council v Bourke [1895] AC 433. However, a majority of the High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council at [116]–[129] stated that the liability of public authorities acting as highway authorities in public nuisance had been absorbed by the negligence action. See also Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; 233 ALR 200 at [26]. As discussed in Chapters 10 and 11, the civil liability legislation in some jurisdictions has modified the common law in regards to liability in negligence of public authorities acting as road authorities.

Interference with a Public Right 25.85 Unlike private nuisance, where the interference must be with a recognised right attached to land, in public nuisance the interference must be with a public right. A public right is one that is enjoyed by all members of the public, not specific individuals, for example the right of access to public roads and footpaths. In Jan De Nul (UK) Ltd v AXA Royale Belge SA (formerly NV Royale Belge) [2000] 2 Lloyd’s Rep 700 at [37], it was noted: … a person who unlawfully obstructs the exercise of rights enjoyed by the public at large commits a public nuisance. One of the most common modern examples is obstruction of the highway over which all members of the public have a right to pass and repass.

In Railtrack plc v Wandsworth London Borough Council [2001] EWCA Civ 1236, there was an interference with the public’s right to use the footpath under a bridge. The bridge owner was found liable in public nuisance for its failure to prevent pigeons roosting on the bridge in circumstances where the birds’ droppings caused inconvenience and discomfort to the members of the public who used the footpath under and near the bridge. However, the interference must be more than general inconvenience: Walsh v Ervin [1952] VLR 361; Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145. [page 670] Other public rights include the right to ‘pass and repass’ over rivers (Tate & Lyle Industries Ltd v Greater London Council [1983] 2 AC 509 at 537); the right to not be subjected to excessive noise (East Dorset District Council v Eaglebeam Ltd [2006] EWHC 2378, noise created by motocross racing ground), odour (Benjamin v Storr [1874] LR 9 CP 400), vibration and dust (Attorney-General v PYA Quarries Ltd [1957] 2 QB 169), and pollution. 25.86

Public rights may also be infringed if there is a failure to ‘discharge a

duty imposed by law, the effect of which is to endanger the life, health, property, morals or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to the public at large’: Jan De Nul (UK) Ltd v AXA Royale Belge SA (formerly NV Royale Belge) at [37] referring to R v Shamrock [1994] QB 279 at 283 and Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 184. 25.87 To be an actionable nuisance, a class of the public must be affected. This is a question of fact and it is not necessary that every member of the class with the public right be affected. Romer LJ in Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 184 stated: … the question whether the local community within that sphere comprises a sufficient number of persons to constitute a class of the public is a question of fact in every case. It is not necessary, in my judgment, to prove that every member of the class has been injuriously affected; it is sufficient to show that a representative cross-section of the class has been so affected for an injunction to issue.

In Ball v Consolidated Rutile Ltd [1991] 1 Qd R 524, the plaintiffs argued that the slippage of a sand dune interfered with their public right to fish in the affected area. Ambrose J held that there was no public right to fish, stating (at 543): [T]he fishing licences which permitted the holders thereof lawfully to catch prawns with nets cannot be said to give those holders any right whether public or private to have the fishing grounds where they fish pursuant to such licences kept free of material of the sort deposited in Moreton Bay by the slippage in issue. It cannot be said therefore that in any relevant sense the right of the plaintiffs to take prawns by commercial nets of designated size and design is any different from the right of any other members of the public to take prawns or fish without using such nets.

Substantial and Unreasonable Interference 25.88 The interference must be both substantial and unreasonable, since the doctrine of ‘give and take’ applies to public nuisance as much as to private nuisance: Harper v G N Haden & Sons Ltd [1933] Ch 298; Trevett v Lee [1955] 1 WLR 113; Maitland v Raisbeck [1944] KB 689.

25.89 An occupier of land adjoining a highway will not be liable in public nuisance for obstruction for the purpose of his or her occupation to an extent deemed reasonable: Harper v G N Haden & Sons Ltd [1933] Ch 298. It is reasonable for a retailer to carry on a legitimate business notwithstanding the attraction of a crowd causing obstruction to the highway, provided that, if there are reasonable means within the retailer’s control to prevent the congregation, they are adopted: Silservice Pty Ltd v Supreme Bread Pty Ltd (1949) 50 SR (NSW) 127. See also Johnson v Kent (1975) 132 CLR 164; 5 ALR 201. It is otherwise if the nature of the business or [page 671] its manner of conduct attracts a large number of people without steps being taken to avoid an obstruction: Lyons, Sons & Co v Gulliver [1914] 1 Ch 631; Fabbri v Morris [1947] 1 All ER 315; Wagstaff v Edison Bell Phonograph Corporation (1893) 10 TLR 80. In Deepcliffe Pty Ltd v Council of the City of Gold Coast (2001) 118 LGERA 117, the plaintiffs owned and operated a successful restaurant. They alleged they had suffered a severe downturn in profits due to the defendant’s unlawful action in reducing the maximum parking limit in the streets near the restaurant from two hours to one hour. The plaintiffs sued, inter alia, in public nuisance, claiming an unlawful interference with their use and enjoyment of the land on which the restaurant was located. Rejecting the plaintiff’s appeal Williams JA, with whom Helman J agreed, stated (at [66]): I cannot see that the appellants here can make out a case that they were denied free uninterrupted access to the roadway by the conduct of the respondents in imposing (or purporting to impose) the parking restriction in question. True, the parking restrictions were in adjacent streets, but it cannot be said that access to and from the roadway was denied or seriously impaired.

Onus of Proof

25.90 Once the plaintiff establishes the nuisance and the defendant is shown to have been its cause, the legal burden of proof is transferred to the defendant to provide an excuse: Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218.

Defences 25.91 The defences available to an action of public nuisance are the same as those for private nuisance: see 25.55ff. However, prescription is not available as a defence.

Remedies 25.92 The remedies available for public nuisance are the same as those for private nuisance: see 25.67ff. In relation to abatement, it should be noted that the right to self-help in public nuisance is even more restricted than it is for private nuisance, since it must be shown by the person abating that he or she has suffered greater damage than the general public: Alexander v Mayor and Corporation of Sydney (1861) 1 SCR (NSW) App 26.

4

A Comparison of Nuisance and Negligence

25.93 A single set of circumstances can give rise to liability in nuisance and negligence provided the elements of each are satisfied. The different, although not mutually exclusive, range and focus of each of the torts is reflected in the following descriptions: A private nuisance consists of ‘an unlawful interference with a person’s

use or enjoyment of land, or some right over, or in connection with it’: Hargrave v Goldman (1963) 110 CLR 40 at 49 per Windeyer J. A public nuisance ‘materially affects the reasonable comfort and convenience of life of a class of her Majesty’s subjects’: AttorneyGeneral v PYA Quarries Ltd [1957] 2 QB 169 at 184 per Romer LJ. [page 672] Negligence involves the existence of a duty of care owed by the defendant to the plaintiff, unreasonable behaviour towards the plaintiff in the situation in which the duty of care exists, and damage to the person, to whom the duty is owed, resulting from the breach, provided such damage is not too remote: Donoghue v Stevenson [1932] AC 562. There are numerous cases in which both private or public nuisance and negligence are made out. In Goldman v Hargrave (1966) 115 CLR 458, the Privy Council held that the appellant was liable in nuisance and negligence for the fire which spread from his land to his neighbour’s. See also Miller v Jackson [1977] QB 966 at 985–6.

Historical Development 25.94 One explanation for differences and overlaps between these actions on the case resides in their respective historical development. The assize of nuisance (beginning quaestus est nobis) separated from the assize of novel disseisin (action to recover possession of land) under Henry II in the 12th century, although its history remains obscure.2 Its early use revolved around interference with servitudes and rights in respect of land. Its association with protection of land rights explains its early limited development compared with the wide range of other actions which were classified eventually as actions on the case. In the 15th century, the assize of nuisance was drawn into

the web of actions on the case and the procedures and process were simplified and aligned with those in other actions on the case, although the common law courts could still only award damages. A quite unrelated development occurred when the term ‘public nuisance’ was applied to a range of petty crimes involving a nocumentum (nuisance) to the public through inconvenience or damage in the exercise of rights enjoyed by all members of the public. This was purely criminal until the 16th century when the first private actions for damages were recognised, provided there was some ‘greater hurt or inconvenience than everyman had’: Anonymous (1535) YB 27 H VIII f 27 per Fitzherbert J. Public nuisances did not require an association with land. Thus, from an historical perspective, although the two torts came to be known as nuisance, they were and are quite distinct. Coke CJ in Earl Shrewsbury’s case (1610) Co Rep 466; 77 ER 798 referred to ‘non feasance or negligence’ and it is likely that the word ‘negligence’ was probably first used in the sense of some negligent omission within the various actions on the case. In the first quarter of the 19th century, negligence became recognised as a basis of liability in its own right and, by the middle of the 20th century, the modern tort of negligence had developed. Since then, what has often been described as the imperial expansion of the tort of negligence has resulted in its present status as the dominant tort in the first decade of the 21st century.

The Interests Protected and the Right to Sue 25.95 Private nuisance protects interests in land, although it extends comprehensively to use and enjoyment as well as physical damage to land and chattels. Accordingly, only a [page 673]

person with a legally recognised interest in land may sue: Malone v Laskey [1907] 2 KB 141. Public nuisance protects the safety and comfort of the public at large and is not tied to interests in land. However, an individual may sue only if special damage is shown. The special damage includes physical damage, discomfort and pecuniary loss: Walsh v Ervin [1952] VLR 361. Negligence requires neither an interest in land nor special damage, but merely damage resulting from breach of the duty of care owed by the defendant to the plaintiff.

The Class of Wrongdoers 25.96 In negligence, the person who has breached their duty of care and caused damage is the appropriate defendant. In private and public nuisance, an occupier is responsible for the nuisance which he or she creates and those which they continue or adopt in circumstances in which the occupier has knowledge or means of knowledge of its presence but fails to take reasonable steps to end it: Kraemers v Attorney-General (Tas) [1966] Tas SR 113. A nonoccupier creator of a nuisance may also be liable: Clearlite Holdings Ltd v Auckland City Corporation [1976] 2 NZLR 729; Khorasandjian v Bush [1993] QB 727.

Basis of Liability 25.97 The focus of liability in a negligence action is upon the defendant’s conduct and foreseeable loss resulting from that conduct, whereas in nuisance the ‘give and take’ rule necessitates a focus upon a balancing of interests between the plaintiff and defendant in light of the harm caused. Accordingly, there is a different emphasis in each tort. Nuisance does not centre on particular conduct but on the harm which results, while negligence centres on the individual conduct measured against the objective standard of a reasonable person.

Measuring ‘reasonableness’ 25.98 In both private and public nuisance, the ‘give and take, live and let live’ rule applies: Bamford v Turnley (1862) 3 B & S 62 at 84; 122 ER 27 at 32– 3 per Bramwell B. Not all conduct which is detrimental will attract liability, but only where the detriment is greater than the plaintiff ought reasonably to tolerate relative to the defendant’s right to pursue the conduct which results in the detriment: Corbett v Pallas (1995) Aust Torts Reports ¶81-239. If required to assess whether the defendant’s conduct is reasonable, the court adopts an objective test and this is similar to the process engaged in when measuring the standard of care in negligence against the ‘reasonable person’. It is sometimes said that the measure in nuisance is subjective because motive is taken into account: Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468; Stoakes v Brydges [1958] QWN 5. However, much of what is described as motive is no more than purpose, and a consideration of the object to be attained and its utility is, of course, relevant in the negligence calculus as well. The standard in nuisance is also objective in the sense of ignoring the overly susceptible plaintiff: Robinson v Kilvert (1889) 41 Ch D 88; Bloodworth v Cormack [1949] NZLR 1058. [page 674]

Onus of Proof 25.99 There is a clear difference in onus which provides an apparent advantage in taking an action in nuisance. In negligence, the onus remains upon the plaintiff throughout for the elements of the cause and it is then for the defendant to raise any relevant defences. In nuisance, it is for the defendant to demonstrate reasonableness once the plaintiff proves a prima facie interference: Kraemers v Attorney-General (Tas) [1966] Tas SR 113; Radstock Co-operative and Industrial Society Ltd v Norton-Radstock Urban

District Council [1968] Ch 605 (private nuisance); Southport Corporation v Esso Petroleum Co Ltd [1956] AC 218 (public nuisance). Therefore, there may be advantages in bringing an action in nuisance rather than negligence in some cases; see comments by Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512; 180 ALR 145 at [122].

Damage 25.100 For negligence, the damage may result from either an indirect and unintentional interference or from direct but unintended interference (in each case, the lack of intention being the relevant factor), whereas, in nuisance, the interference must be indirect. Moreover, the damage recognised for negligence covers both physical and financial loss, not tied to land, whereas for private nuisance the damage must be associated with the use of land, even if it is physical damage to persons or property or resultant financial loss. The association with land is a limit upon the damage recognised for actionable nuisance, but is balanced by recognition of two positive aspects which are not known in negligence: 1.

Nuisance recognises the more subtle aspects of loss of enjoyment, whereas negligence requires substantive damage.

2.

Nuisance protects against threatened or future interference, whereas negligence merely compensates for the effects of past wrongs.

Defences 25.101 A comparison of four of the defences available in negligence with those available in a nuisance action is also indicative of both the differences and overlaps between the two:

1.

Volenti non fit injuria If a plaintiff actually consents to a nuisance (Kiddle v City Business Properties Ltd [1942] 1 KB 269), then a defence similar to volenti is recognised, as in the case of an overly sensitive plaintiff. However, there is no volens arising merely from a plaintiff coming to a pre-existing nuisance: Sturges v Bridgman (1879) 11 Ch D 852; Miller v Jackson [1977] QB 966.

2.

Joint illegal activity Participation in a joint illegal activity or enterprise is a defence in a negligence action in Australia only if the standard of care cannot be determined except by reference to the nature of the illegal enterprise: Jackson v Harrison (1978) 138 CLR 438; 19 ALR 129; Gala v Preston (1991) 172 CLR 243; 100 ALR 29. The policy considerations underlying the defence in negligence may well permit its application to nuisance, although there appear to be no reported cases to date. [page 675]

3.

Contributory negligence This defence provides by far the most controversial issue in its alleged application to nuisance: McMeekin v Council of the City of Maryborough [1947] St R Qd 192. The defence has certainly applied to personal injury cases involving public nuisance (Butterfield v Forrester (1809) 11 East 60; 103 ER 926), but its application to private nuisance remains doubtful. The apportionment legislation, which reduced the common law contributory negligence to a partial defence, could arguably extend to private nuisance.

4.

Statutory authority When used as a defence, it applies to both negligence and nuisance actions: Allen v Gulf Oil Refining Ltd [1981] AC 1001.

Remedies 25.102 For negligence, compensatory damages is the remedy, whereas for nuisance, in addition to compensatory damages for past losses, aggravated or exemplary damages may be available, as well as injunctive relief for future or threatened interferences, particularly if repetition is threatened. Damages in lieu of an injunction may be available pursuant to legislation such as Civil Proceedings Act 2011 (Qld) s 8; and see Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245. Finally, a plaintiff is entitled to resort to self-help to abate a nuisance provided the steps taken are reasonable and within the limits imposed by the courts. See also Chapter 21 for a discussion of proportionate, rather than solidary, liability for property damage and pure economic loss, but not for personal injury.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 14. P Cane, ‘What a Nuisance!’ (1997) 113 LQR 515. M Fordham, ‘The Roll of the Negligence Bandwagon: What Role for Public Nuisance?’ (2003) 11 Tort L Rev 26. H Luntz, D Hambly, K Burns, J Dietrich and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Chs 14 and 15.

1.

See J Bell, Climate Change and Coastal Development Law in Australia, The Federation Press, Sydney, 2014.

2.

T F T Plucknett, A Concise History of the Common Law, 5th ed, Butterworth and Co, London, 1956, p 469.

[page 677]

Chapter 26 Liability for Animals 1

Introduction

26.1 The common law rules in respect of liability for animals developed in England at a time when agricultural interests were favoured over the general public and arable agriculturalists favoured over graziers. Accordingly, the rules denied liability for stock wandering onto highways or for stock on highways wandering onto adjacent property, but imposed liability for stock wandering from one property to another. The law relating to the liability of owners or controllers of animals for damage done by their animals involves several aspects of the law of torts, as modified by statute. The specific actions of scienter and cattle trespass are torts of strict liability. However, liability for animals may arise through the action of trespass, negligence and private and public nuisance.

2

Strict Liability

Scienter 26.2 The word ‘scienter’ refers to the knowledge of an animal’s dangerous disposition. Under the common law, strict liability is imposed for damage caused by dangerous animals. A person who knowingly keeps a dangerous animal is bound to prevent it doing harm to the person or property of another and is liable without proof of negligence.

The scienter action has been abolished in the Australian Capital Territory, New South Wales and South Australia: Civil Law (Wrongs) Act 2002 (ACT) s 214; Animals Act 1977 (NSW) s 7(2)(a); Civil Liability Act 1936 (SA) s 18. In Western Australia, the action is abolished only in respect of animals straying onto a highway: Highways (Liability for Straying Animals) Act 1983 (WA) s 3(3). The principle of scienter in respect of dogs has been modified by statute in all Australian jurisdictions, except in Queensland: see 26.16.

Classification of animals 26.3 For the purpose of the scienter action, animals are classified as either ferae nature (wild disposition) or mansuetae naturae (naturally tame or of a domesticated disposition). The classification of the animal is a question of law, the test being whether the species is [page 678] likely to be dangerous to persons: McQuaker v Goddard [1940] 1 KB 687 at 700–1; [1940] 1 All ER 471 at 478–9; Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER 583. 26.4 Mansuetae naturae (naturally tame) The characteristics of domestic animals were identified by Lord Esher MR in Filburn v People’s Palace & Aquarium Co Ltd (1890) 25 QBD 258 at 260 as either being harmless by their very nature or those species that had been tamed and domesticated so as to be harmless. His Lordship gave the examples of pigeons, rabbits, dogs, horses and cattle as domestic animals. Other examples include kangaroos (Lake v Taggart (1978) 1 SR (WA) 89), bees (Stormer v Ingram (1978) 21 SASR 93) and bulls: Smith v Capella State High School Parents and Citizens Association [2004] QSC 34. 26.5

The keeper of a domestic animal will only be strictly liable if the

animal has a propensity to be dangerous and the keeper has knowledge of that propensity: Eather v Jones [1974] 2 NSWLR 19; (1975) 6 ALR 220; Jones v Linnett [1984] 1 Qd R 570. In Draper v Hodder [1972] 2 QB 556 at 569, Edmund Davies LJ stated: A person keeping an animal “mansuetae naturae”, which he knows has a propensity to do a particular kind of mischief, is under an absolute duty to prevent it from doing that kind of mischief, and is, therefore, liable without proof of negligence for any damage caused by the animal’s acting in accordance with that known propensity. But to render the defendant liable, proof must be directed to his knowledge regarding the propensity of the individual animal whose activities have given rise to the institution of legal proceedings.

Therefore, to be strictly liable for damage caused by a domestic animal, the plaintiff must establish that the animal had done, or had attempted to do; the kind of harm alleged on a previous occasion (Worth v Gilling (1866) LR 2 CP 1) and that the defendant knew of this act or attempt. 26.6 The knowledge must be of the particular propensity. Knowledge of a propensity to bite humans is not necessarily knowledge of a propensity to attack other animals and vice versa: Glanville v Sutton [1928] 1 KB 571. It is only the propensity which must be shown to have been known and not knowledge of past injury of that very kind: Cruttendon v Brenock [1949] VLR 366. In Romano v Spagnol (NSWCA, Kirby P, Meagher and Cole JJA, 17 October 1994, unreported), it was held that only slight evidence is sufficient to sustain knowledge as it would, generally, be only the owner who would know the actual propensity of the animal: at 3. In that case, evidence was given of the type of dogs involved and the fact that the dogs in question were chained with a heavy thick chain to a spike. However, in Collins v Carey [2002] QSC 398, at first instance, Philippides J held in relation to the claim in scienter, that a warning given to the plaintiff by the defendant not to go near the place where the dog was chained and the fact that there had been 25 articles in five years in the main Queensland newspaper about dog bites of the particular breed of dog, did not reflect any knowledge of the defendant of the dog’s propensity to bite: at [26]–[31].

26.7 The action of scienter arises from the damage caused by lack of control, even if there is no escape from confinement: Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649. Escape from control need not result in escape from the land: Mansfield v Baddeley (1876) 34 LT 696. However, the damage must have been caused while the animal was not being controlled: Rands v McNeil [1955] 1 QB 253. [page 679] 26.8 As to whether there must be a link between the dangerous attribute of the animal and the harm suffered, there are conflicting views. For domestic animals (mansuetae naturae), the harm suffered by the plaintiff must relate to the animal’s dangerous propensity. In Glanville v Sutton [1928] 1 KB 571, the action in scienter, based upon a horse biting the plaintiff, failed as the known propensity of the horse was for biting other horses. As for wild animals (ferae naturae), there are differing approaches and no clear Australian authority. However, in England, the approach is that it would be ‘unreasonable to limit the liability’ for a wild animal: Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 17; [1957] 1 All ER 583 at 590 (analogy of waking to find a tiger on the bed, causing a heart attack). See also Brook v Cook (1961) Sol Jo 684 (plaintiff’s fall upon seeing a monkey in her garden was not a foreseeable result of her shock). 26.9 The owner and the keeper of the animal may be sued, but liability will usually rest upon the keeper: North v Wood [1914] 1 KB 629. It is possible that the relationship between the keeper of the animal and the owner imputes knowledge of the animal’s dangerous propensity, for example in an employment or agency relationship where the doctrine of vicarious liability would apply. 26.10

Ferae naturae (wild by nature) If a species is not harmless by

nature or domesticated so as to be harmless, then it will be classified as wild. The law has identified many species as wild, for example elephants (Filburn v People’s Palace & Aquarium Co Ltd (1890) 25 QBD 258; Behrens v Bertram Mills Circus Ltd), bears (Besozzi v Harris (1858) 175 ER 650), zebras (Malor v Ball (1900) 16 TLR 239), monkeys and chimpanzees (May v Burdett (1846) 9 QB 101; James v Wellington City [1972] NZLR 978) and the dingo: Fischer v Stuart (1979) 25 ALR 336. It has been assumed by the courts that lions and tigers are classified as dangerous: Behrens v Bertram Mills Circus Ltd. Animals classified as wild are done so by species, not by the particular member of the species. In Behrens v Bertram Mills Circus Ltd, the plaintiffs suffered injury when a trained circus elephant reacted in fright to a dog. Lord Devlin stated (at QB 14; All ER 588): The law ignores the world of difference between the wild elephant in the jungle and the trained elephant in the circus. … I am, however, compelled to assess the defendant’s liability in this case in just the same way as I would assess it as if they had loosed a wild elephant into the fun fair.

Similarly, in Smith v Capella State High School Parents and Citizens Association [2004] QSC 34 at [28], it was held that there was ‘nothing distinctive about bucking bulls that would justify classifying them as a class separate from other domestic cattle’. 26.11 In the case of animals ferae naturae, the person in control of the animal is deemed to have knowledge (scienter) of its dangerous propensities. The controller of the dangerous animal may be held liable for all of the damage that is the natural and probable consequence of the failure to control the animal: Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER 583. If the controller of the wild animal has control due to employment or agency, the owner will be vicariously liable.

Defences to a scienter action 26.12

Volenti non fit injuria Voluntary assumption of risk (volenti non fit

injuria) is a complete defence to a scienter action: Dorman v Horscroft (1980) 24 SASR 154. If the [page 680] plaintiff voluntarily takes the risk of injury with full knowledge of the dangerous nature of the animal, the defence will succeed. For example, a person who trespasses on land knowing of the existence of the dangerous animal on that land and is injured by the animal, the defence of volenti may be raised: Cummings v Granger [1976] 3 WLR 842; [1977] 1 All ER 104. However, more than a ‘Beware of the Dog’ sign is required to satisfy that the plaintiff had knowledge. 26.13 The duty of a keeper to a licensee (a person entering property with permission or under a licence) is to warn of danger, and if the licensee chooses to accept the risk, the keeper will not be liable: Cummings v Granger; Brock v Copeland (1794) 1 Esp 203; 170 ER 328. 26.14 Default of plaintiff It is a good defence that the plaintiff brought the damage upon himself or herself. The defendant must prove that the plaintiff’s own actions led to the injury. The plaintiff’s default destroys the causal link between the injury and the keeping of the animal. A plaintiff will be at fault, for example by irritating or provoking the animal: May v Burdett (1846) 9 QB 101 at 113; 115 ER 1213 at 1218; Simpson v Bannerman (1932) 47 CLR 378 at 384. However, contributory negligence is not a defence to a scienter action: Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 at 654–5. If the plaintiff is a trespasser, it may be argued that the plaintiff’s own default led to their injuries. The High Court in Simpson v Bannerman observed (at 384): But if a person goes on premises for no lawful purpose and is bitten he cannot complain of that

which was brought upon him by his own act (Sarch v Blackburn (1930) 47 TLR 25).

26.15 Act of a third party If the escape from control results from an act of God (for example, an earthquake), there may be no liability: Nichols v Marsland (1875) LR 10 Ex 255 at 260. However, the act of a stranger is not a defence: Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1; [1957] 1 All ER 583; Jones v Linnett [1984] 1 Qd R 570 at 575.

Strict Liability for Dogs 26.16 The legislation in respect of dogs in Australia can be traced back to the Dog Nuisance Act 1830; 11 Geo IV No 8, and is seen as necessary as they are animals commonly allowed to roam which have the ability to inflict serious injury on other animals and humans.1 26.17 In every Australian jurisdiction, except Queensland, legislation provides for the recovery of damages for injuries inflicted by dogs irrespective of negligence: Domestic Animals Act 2000 (ACT) s 50; Companion Animals Act 1998 (NSW) ss 25–28; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 32; Dog and Cat Management Act 1995 (SA) s 66; Dog Control Act 2000 (Tas) s 19; Domestic Animals Act 1994 (Vic) s 29(3); Dog Act 1976 (WA) s 46. The action provided by the legislation is in addition to any common law rights. In Queensland, the common law only applies and a plaintiff would need to take an action in scienter, negligence or nuisance. [page 681] Generally the legislation imposes strict liability and a plaintiff does not have to prove any dangerous propensity of the dog, or knowledge of the owner of any dangerous propensity; see, for example, Dog Act 1976 (WA) s 46(3). Also, a defendant cannot escape liability by proving a lack of negligence on their part. In Rokich v Gianoli (WASC, Pidgeon, Murray and Parker JJ, 4

March 1997, unreported), the Full Court of Western Australia rejected the defendant’s submission that the legislation created a rebuttable presumption. 26.18 Liability is placed on the owner or keeper of the dog. Most of the statutory definitions of ‘owner’ include the person in control of the dog and the occupier of the premises where the dog resides.

Defences 26.19 The legislation of the various jurisdictions provides limitations in respect of liability. In addition, the defences available to an action in scienter may be raised: Simpson v Bannerman (1932) 47 CLR 378 at 383; Rigg v Alietti [1982] WAR 203 at 207. 26.20 Provocation by plaintiff A common defence is that the plaintiff suffered their injuries due to them provoking, teasing or mistreating the dog: Domestic Animals Act 2000 (ACT) ss 50(3)(a), 55(4)(c); Companion Animals Act 1998 (NSW) s 16(2); Dog and Cat Management Act 1995 (SA) s 66(3)(a); Dog Control Act 2000 (Tas) s 19(5)(b); Domestic Animals Act 1994 (Vic) s 29(2). See also Dog Act 1976 (WA) ss 3(1) definition of ‘provocation’ and 33D.There is no such defence under the Northern Territory legislation. 26.21 Contributory negligence In some jurisdictions the legislation expressly provides for the defence of contributory negligence: see Domestic Animals Act 2000 (ACT) ss 50(3)(c) and 55(4)(b); Companion Animals Act 1998 (NSW) s 28; Dog and Cat Management Act 1995 (SA) s 66(4); Dog Act 1976 (WA) s 46(2). 26.22 Volenti non fit injuria Although there is no provision in the legislation, the defence of volenti is allowed. 26.23 Plaintiff a trespasser In most jurisdictions, the legislation expressly provides a defence if the plaintiff was trespassing: Domestic Animals Act 2000 (ACT) ss 50(3)(c)(i), 55(4)(a); Companion Animals Act 1998 (NSW) s 25(2);

Dog and Cat Management Act 1995 (SA) s 66(3)(c); Dog Control Act 2000 (Tas) s 19(5)(a); Domestic Animals Act 1994 (Vic) s 29(2). See also Dog Act 1976 (WA) ss 3(1) definition of ‘provocation’ and 33D.The defence is not provided by the Northern Territory legislation. See Johnson v Buchanan [2012] VSC 195 (no liability as plaintiff was bitten when he placed his arm over the boundary fence of the property); Penford v Betteridge (2011) 13 DCLR (NSW) 168; [2011] NSWDC 146; Simon v Condran [2013] NSWDC 32.

Cattle Trespass 26.24 The tort of cattle trespass is one of strict liability; the person in control of the cattle will be liable for any trespass by the cattle onto another’s land: Cox v Burbridge (1863) 143 ER 171; Wormald v Cole [1954] 1 QB 614. An exception to this is if the cattle are lawfully on [page 682] the highway and escape onto adjoining land. In such circumstances, the defendant will only be liable if they were negligent in allowing the cattle to escape: Davis v Cole [1939] VLR 320. The cause of action applies not only to cattle, but extends to various domesticated animals, for example oxen, goats, swine, sheep, domestic birds, horses and donkeys, but not to cats or dogs: Buckle v Holmes [1926] 2 KB 125; Jones v Linnett [1984] 1 Qd R 570 at 574. The tort has been abolished in the Australian Capital Territory, New South Wales, South Australia and partially in Western Australia: Civil Law (Wrongs) Act 2002 (ACT) s 212; Animals Act 1977 (NSW) s 4(1); Civil Liability Act 1936 (SA) s 18; Highways (Liability for Straying Animals) Act 1983 (WA) s 3(3). In Queensland, there has been comment that the tort may

not survive further consideration by an appellate court: Lade & Co Pty Ltd v Black [2007] QSC 385 at [46]. 26.25 The action of cattle trespass is closely linked to trespass to land. If a person deliberately drives an animal onto the land of another, then an action in trespass to land arises from such a direct interference: see 26.28. In comparison, the tort of cattle trespass will include situations where the animal acts independently, that is, the animals simply wander onto the plaintiff’s land themselves. Even partial entry, for example by one animal placing its head through a fence to harm another, is sufficient to impose liability: Ellis v Loftus Iron Co (1874) LR 10 CP 10. In an action of cattle trespass, the plaintiff must have an interest in the land trespassed upon: Edwards v Rawlins [1924] NZLR 333. The proper defendant to an action in cattle trespass is the person in control of the animal, which may not necessarily be the owner. 26.26 Scienter need not be shown and, as it is a trespass action, it is actionable without proof of any damage: see Chapter 2. If damage is suffered, a plaintiff is entitled to compensation. This may include compensation for any damage to the land or crops or damage to animals on the plaintiff’s land, for example through infection, insemination or physical attack. Personal injury may be compensated, but the damage must arise from the normal behaviour of the animal’s species. For example, in Mark v Barkla [1935] NZLR 347, it was held that it was not the ordinary nature of a boar to attack a person, and in Cox v Burbridge (1863) CB (NS) 430; 143 ER 171, it was held that it is unlikely that a horse will kick a human. However, injury from being trampled upon by a cow, not attacked, may be compensated: see Wormald v Cole [1954] 1 QB 614.

Defences 26.27

The defences available to an action in cattle trespass include:

volenti non fit injuria; an act of God; an act of a third party for whom the defendant was not responsible; and he plaintiff’s own default, for example a failure to fence when under an obligation to do so: Rooth v Wilson (1817) 1 B & Ald 59; 106 ER 22. [page 683]

3

Fault

Trespass 26.28 If animals are intentionally driven onto the land of another or intentionally directed to attack, actions for trespass to land and person may arise: Beckwith v Shordike (1767) 4 Burr 2093; 98 ER 91; League Against Cruel Sports Ltd v Scott [1986] QB 240. See also Chapters 3 and 4.43.

Negligence 26.29 A person with the care and control of an animal may be liable in negligence. The defendant must owe a duty of care to the plaintiff and there must have been a failure to exercise reasonable care resulting in damage that is not too remote: Draper v Hodder [1972] 2 QB 556; Carrera v Honeychurch (1983) 32 SASR 511. See Chapter 8. 26.30 An action in negligence may be available even if there is a lack of actual knowledge of the animal’s dangerous propensity. In Galea v Gillingham [1987] 2 Qd R 365 at 375, it was held, in claiming negligence in relation to injuries suffered due to a domestic animal, a plaintiff had to

establish, first, that there was a foreseeable risk that the injuries suffered could be inflicted by the animal if the defendant did not take reasonable care and, second, there was a propensity on the part of the animal that the defendant knew, or ought to have known, and, therefore, ought to have foreseen the real risk of injury. In Collins v Carey (2003) Aust Torts Reports ¶81-709, the plaintiff was on the defendant’s premises carrying out a job as a furniture removalist when he was bitten by the defendant’s dog (a cattle dog/Staffordshire bull-terrier cross). The claim in scienter was rejected by the trial judge (see 26.6), but the plaintiff was successful in proving negligence. The Court of Appeal held that the trial judge was correct in finding that the evidence that the owner had tied the dog up and warned the plaintiff not to go near the area where the dog was, did not indicate actual knowledge of its dangerous propensity. However, it was recognition by the defendant of the risk that the dog might bite, contrary to its past conduct. It was held that the defendant ought to have appreciated that the dog was of a dangerous breed and was territorial in nature. By failing to properly restrain the dog, the defendant had been negligent. 26.31 A defendant will not owe a duty to warn a plaintiff of an animal’s propensity if it is an obvious risk. An ‘obvious risk’ is a risk that would be obvious to a reasonable person in the position of the plaintiff: Civil Liability Act 2002 (NSW) s 5H; Civil Liability Act 2003 (Qld) s 15; Civil Liability Act 1936 (SA) s 36; Civil Liability Act 2002 (Tas) s 17; Civil Liability Act 2002 (WA) s 5O. 26.32 In New South Wales, South Australia and Western Australia, legislation specifies what a court is to take into account when determining whether the duty of care has been breached: Animals Act 1977 (NSW) s 10; Civil Liability Act 1936 (SA) s 18(2), (6); Highways (Liability for Straying Animals) Act 1983 (WA) s 3(4). See also Civil Law (Wrongs) Act 2002 (ACT) s 169.

[page 684]

Defences 26.33 The usual defences to a negligence action may be raised by a defendant, for example contributory negligence (Dorman v Horscroft (1980) 24 SASR 154; Smith v Capella State High School Parents and Citizens Association [2004] QSC 34 at [24]–[25]) and volenti non fit injuria: see Chapter 13. Under most of the civil liability legislation, if the defence of volenti is raised and the risk of being injured by the animal was an obvious risk, it will be assumed that the plaintiff was aware of the risk unless they can prove, on the balance of probabilities, that they were not aware of the risk: Civil Liability Act 2002 (NSW) ss 5F, 5G; Civil Liability Act 2003 (Qld) ss 13, 14; Civil Liability Act 1936 (SA) ss 37, 38; Civil Liability Act 2002 (Tas) ss 15, 16; Wrongs Act 1958 (Vic) ss 53, 54; Civil Liability Act 2002 (WA) ss 5F, 5N. There is no equivalent in the Australian Capital Territory or the Northern Territory. See 3.53.

Rule in Searle v Wallbank 26.34 In Searle v Wallbank [1947] AC 341, it was held that there was no duty to take care to prevent tame animals from straying on to the highway even if there was a likelihood that they may cause harm. This immunity was confirmed by the High Court in State Government Insurance Commission (SA) v Trigwell (1979) 142 CLR 617 at 631; 26 ALR 67 at 76, where the effect of the rule was explained as: [The owner of land adjacent to a highway is] under no legal obligation to users of [the highway] so to keep and maintain his hedges, fences and gates as to prevent animals from straying on to it, and … he is not under any duty as between himself and users of it to take reasonable care to prevent any of his animals, not known to be dangerous, from straying on to it.

26.35 The rule in Searle v Wallbank [1947] AC 341 has been removed by statute in England (Animals Act 1971 s 8) and in all Australian jurisdictions

except Queensland and the Northern Territory: Civil Law (Wrongs) Act 2002 (ACT) s 214; Animals Act 1977 (NSW) s 7(2)(b); Civil Liability Act 1936 (SA) s 18; Law of Animals Act 1962 (Tas) s 19; Wrongs Act 1958 (Vic) s 33; Highways (Liability for Straying Animals) Act 1983 (WA) s 3(1). A plaintiff suffering damage due to straying animals would have an action in negligence: see, for example, Motor Accidents Insurance Board v Lester [2016] TASSC 2. In 1977, the Queensland Law Reform Commission released a working paper that recommended the abolition of the rule in Searle v Wallbank but no change in government policy ever eventuated.2 In Fabian v Welsh [1999] QCA 365, the appellant argued that Searle v Wallbank had been overtaken by the general approach to negligence. However, the Queensland Court of Appeal noted (at [9]): Until the High Court reverses or modifies it more clearly, it might be difficult to disregard the explicit authority of Trigwell upon the basis of some perceived tendency of the court …

[page 685] 26.36 It is likely the Australian High Court would today modify or abandon this relic of the past and allow the ordinary principles of negligence to apply. Murphy J, giving a dissenting judgment in State Government Insurance Commission (SA) v Trigwell (1979) 142 CLR 617; 26 ALR 67, was highly critical of the acceptance of the rule as part of Australian law at settlement. His Honour stated (at CLR 644; ALR 87): The judgments in Searle v Wallbank and the English cases before and after it, contain a number of statements of social policy, and consciously balance the interests of landowners and users of highways as they were visualised in the conditions in England at that time. The common law is studded with similar decisions expressing the social values of judges. Searle v Wallbank should not be criticised because of this; criticism should be directed towards the resulting exception from the general law of negligence which departed so far from the social values prevailing in the United Kingdom that it was superseded by parliament (see Animals Act 1971). The decision of the judges in Searle v Wallbank has been subjected to much criticism …

His Honour was of the opinion that ‘Searle v Wallbank should not be part

of the law’: at CLR 652; ALR 93. However, the decision remains as authority that the rule continues to exist in those jurisdictions that have not legislated its abolition. 26.37 In Searle v Wallbank [1947] AC 341, the plaintiff was riding his pushbike down a lane at 1.30 am during wartime and his front light was masked because of blackout regulations. He collided with a horse, belonging to the defendant, which had escaped through a hedge onto the roadway. The House of Lords held there was no duty to fence or to prevent animals not known to be dangerous from straying. In the words of Viscount Maugham (at 352–3): The fact is, as the desuetude of the village pound shows that “estrays” or “strays” were far commoner a hundred years ago. The above considerations seem to me to be conclusive to show that no such duty to road users as the appellant relies on could possibly have existed before the advent of fast traffic on madeup roads. Hedges and fences were generally constructed and maintained in the interests of the owners of adjacent lands, and accidents to road users arising from the animals straying on the roads were so far as one can judge practically nonexistent. Since fast traffic on such roads became usual, accidents due to straying animals no doubt sometimes occur; but so far as we know they are exceedingly rare. Moreover, they also arise when animals are being led or driven along highways in the usual course of husbandry, and no one suggests that motorists and cyclists have a prima facie right of action against the person in charge of them. More frequently such accidents are caused by dogs or fowls which can get through or over any ordinary hedge, and counsel for the appellant admitted, and I think rightly, that no action would lie in such cases against the owners. No facts in my opinion have been established which would tend to show that farmers and others at some uncertain date in our lifetime became subject for the first time to an onerous and undefined duty to cyclists and motorists and others which never previously existed. The fact that the duty does not exist if the road is unenclosed by fences and yet that accidents are rare is, I think, strong to show that the respondent was not bound as a reasonable man to think that his failure to fill up a gap in his fence was likely to cause such an accident as the one which took place.

26.38 Immunity does not arise under the rule if there is knowledge of a mischievous propensity, that is, something more than a mere proclivity to straying: State Government Insurance Commission (SA) v Trigwell (1979) 142 CLR 617; 26 ALR 67; Graham v Royal

[page 686] National Agricultural and Industrial Association of Queensland [1989] 1 Qd R 624. In State Government Insurance Commission (SA) v Trigwell, it was held that the immunity applied to deny liability in nuisance, as otherwise it would ‘subvert the operation of the rule itself’ (CLR at 637; ALR at 81). However, the court noted that an action in public nuisance was possible if the common right of passage over the highway was obstructed and therefore the rule in Searle v Wallbank would not afford immunity if a number of animals escape onto a highway and interfere with the public’s right (CLR at 637–8; ALR at 81, citing Searle v Wallbank at 361). On the facts before the court, it was not thought that a few straying sheep caused an interference with the public’s rights. The rule will not apply if the animals did not stray onto the highway but were brought onto the highway by the owner, and the owner will owe a duty of care to the users of the highway: Deen v Davies [1935] 2 KB 282 at 295. In Smith v Williams (2006) 47 MVR 169 at [19], the Queensland Court of Appeal held that it must be proven that the owners exercised active control over the animals to direct them onto the highway for the immunity not to apply.

Nuisance 26.39 It may be a private nuisance to keep certain animals if they interfere with the enjoyment of another’s land, for example the keeping of noisy birds (Ruthning v Ferguson [1930] St R Qd 325) or horses: Munro v Southern Dairies Ltd [1955] VLR 332. An actionable nuisance may also arise if animals stray onto land in the possession of the plaintiff. In Stockwell v Victoria [2001] VSC 497, the plaintiff sued in nuisance for the straying of wild dogs from the adjoining Crown land designated as a reference area by the government, prohibiting entry by any person except

those authorised by the Minister. The evidence was that wild dogs regularly went onto the plaintiff’s land from the Crown land and attacked his sheep. Gillard J stated (at [306]): … the wild dogs coming onto the plaintiff’s property and killing and injuring his stock constituted an interference with the plaintiff’s enjoyment of the rights in his land. I am also satisfied that the interference to his rights was substantial. These attacks constituted a nuisance.

26.40 There may be a public nuisance if the owner of animals permits them to interfere with public rights. An individual member of the public may sue in public nuisance if they suffer particular damage, for example if the animal strays onto the footpath and trips a pedestrian: Pitcher v Martin [1937] 3 All ER 918 (also held to be negligence). See also Chapter 25.

Further Reading R P Balkin and J L R Davis, Law of Torts, 5th ed, LexisNexis Butterworths, Sydney, 2013, Ch 15. H Luntz, D Hambly, K Burns, J Dietrich, and N Foster, Torts: Cases and Commentary, 7th ed, LexisNexis Butterworths, Sydney, 2012, Ch 15.

1.

See New South Wales Law Reform Commission, Civil Liability for Animals, Report No 8, 1970, p 35.

2.

Queensland Law Reform Commission, Working Paper on a Bill to Remove the Anomalies Presently Existing with Respect to Civil Liability for Animals and to Rationalise the Existing Rules of Common Law for Damage Done by Animals, Working Paper No. 18 (1977).

Index References are to paragraph numbers

A Aboriginals false imprisonment …. 3.51 personal injury damages …. 15.125

Absolute privilege see also Qualified privilege judicial proceedings …. 23.24, 23.27 Australian court, definition …. 23.30 common law …. 23.25–23.28 defamation legislation …. 23.29, 23.30 other legislation …. 23.31 professional disciplinary bodies …. 23.28 Royal Commissions …. 23.31 solicitor client communications …. 23.26 officers of state …. 23.32 overview …. 23.16, 23.17 parliamentary proceedings …. 23.16, 23.18 common law …. 23.19, 23.20 defamation legislation …. 23.19, 23.21, 23.22 other legislation …. 23.23

parliamentary body, definition …. 23.22

Abuse of process damage requirement …. 18.44, 18.49 defences …. 18.50 defendant as party to proceedings …. 18.48 elements …. 18.44 improper purpose …. 18.44, 18.45 mixed purposes …. 18.46 malicious prosecution, distinction …. 18.47 overview …. 18.1, 18.41, 18.42 recognition in Australia …. 18.43

Accessorial liability misleading or deceptive conduct …. 19.97, 19.98

Account of profits overview …. 15.6 passing off …. 15.6, 24.31

Act of God defence cattle trespass …. 26.27 scienter action …. 26.15

Actions on the case see also Malicious prosecution; Misfeasance in public office; Negligence; Nuisance characteristics of actions …. 2.21 evolution of actions …. 2.1, 2.5, 2.21 Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22 indirect interference …. 2.2, 2.7 intention …. 2.3, 2.6, 2.10, 2.22

United Kingdom …. 2.6 indirect interference …. 2.2, 2.7, 2.21 innominate actions …. 2.21, 2.25, 2.28 High Court decisions …. 2.26, 2.27 reversionary owners …. 5.70 intention …. 2.3, 2.6, 2.10, 2.21, 2.22, 2.24, 2.28 limitation of actions …. 14.15 onus of proof …. 2.21 overview …. 2.1, 2.21 trespass, distinction …. 2.1, 2.5, 2.25, 2.28, 14.15 Australian position …. 2.7, 2.8, 2.9, 2.10, 2.11, 2.22–2.24, 2.28, 7.10 causal connection …. 2.2 diagram …. 2.11 direct interference …. 2.2, 2.7, 2.8 fault …. 2.4, 2.6, 2.8 intention …. 2.3, 2.5, 2.6, 2.10, 2.22, 2.28, 7.10 significance of distinction …. 2.22 United Kingdom …. 2.6

Agency agent, meaning …. 20.51 agent or contractor …. 20.56 deceit …. 19.77 liability of principal …. 20.50, 20.52 misleading or deceptive conduct …. 19.97 motor vehicle owners …. 20.57, 20.58 hire care firms …. 20.59

legislation …. 20.60 rebuttal of presumption …. 20.59 vicarious liability …. 20.50, 20.51 agent or contractor …. 20.56 express authorisation …. 20.54 holding out …. 20.55 motor vehicle owners …. 20.57–20.60 ostensible authority …. 20.52, 20.55 scope of authority …. 20.52, 20.53

Aggravated damages assault …. 3.81 conversion …. 5.76 deceit …. 19.89 defamation …. 15.24, 23.120, 23.124 corporations …. 23.125 justification defence …. 23.122–23.123 definition …. 3.80, 15.24 detinue …. 5.76 false imprisonment …. 3.81, 3.82 intimidation …. 24.86 malicious prosecution …. 7.19 personal injuries …. 15.24 trespass to chattels …. 5.76 trespass to land …. 4.61, 4.63–4.64 trespass to person …. 3.79, 3.80–3.82, 3.84 vulnerable personalities …. 3.81

Animals cattle trespass …. 26.1, 26.24, 26.25 damage …. 26.26 defences …. 26.27 personal injuries …. 26.26 proper defendant …. 26.25 statutory abolition …. 26.24 trespass to land, and …. 26.25 development of law …. 26.1 distress damage feasant …. 6.47 dogs …. 26.16 contributory negligence …. 26.21 dangerous dogs …. 26.6 defences …. 26.19–26.23 historical background …. 26.16 knowledge of propensity …. 26.5, 26.6 legislation …. 26.16, 26.17 owner’s liability …. 26.18 provocation by defendant …. 26.20 trespassers …. 26.23 voluntary assumption of risk …. 26.22 negligence …. 26.1, 26.29 breach of duty …. 26.32 defences …. 26.33 knowledge of dangerous propensity …. 26.30 obvious risk …. 26.31

straying onto highways …. 26.35, 26.36 voluntary assumption of risk …. 26.33 occupiers of premises …. 20.71 overview …. 26.1 private nuisance …. 26.1, 26.39 public nuisance …. 26.1, 26.40 straying onto highways …. 26.38 scienter …. 26.1, 26.2 act of God defence …. 26.15 classification of animals …. 26.3 contributory negligence …. 26.14 controller’s liability …. 26.11 damage caused by lack of control …. 26.7 default of plaintiff …. 26.14 defences …. 26.12–26.15 domestic animals …. 26.3, 26.4–26.9 escape from control …. 26.7 ferae naturae …. 26.3, 26.8, 26.10, 26.11 harm and dangerous propensity …. 26.8 keeper’s liability …. 26.5, 26.9 knowledge of propensity …. 26.5, 26.6, 26.11 mansuetae naturae …. 26.3, 26.4–26.9 meaning …. 26.2 owner’s liability …. 26.9 statutory abolition …. 26.2 voluntary assumption of risk …. 26.12, 26.13

wild animals …. 26.3, 26.8, 26.10, 26.11 straying onto highways …. 26.34, 26.37, 26.38 criticisms of rule …. 26.36 knowledge of propensity …. 26.38 public nuisance …. 26.38 Queensland …. 26.35 Searle v Wallbank …. 26.34, 26.35, 26.37 statutory abolition …. 26.35 strict liability …. 26.1 cattle trespass …. 26.24–26.27 dogs …. 26.16–26.23 scienter …. 26.2–26.15 trespass to chattels …. 5.17 trespass to land …. 4.43, 26.1, 26.28 cattle trespass, and …. 26.25 trespass to person …. 26.28

Appeals contributory negligence …. 13.46 ‘rule of restraint’ …. 13.47 defamation …. 22.63 damages awards …. 23.138–23.140 negligence actions …. 11.93, 11.96 additional grounds …. 11.94 High Court …. 11.95 judge alone …. 8.25, 11.96 questions of fact …. 8.24, 8.25

questions of law …. 8.24 personal injury damages …. 15.151, 15.152

Arrest arbitrary arrest …. 3.64 civil arrest …. 3.64, 3.69 onus of proof …. 3.70 statutory modification …. 3.70 false imprisonment …. 3.64–3.70 overview …. 3.64 police arrest …. 3.64, 3.65 delay in charging …. 3.65 trespass to land …. 4.28 warrant arrests …. 3.67 warrant without authority …. 3.68 without warrant …. 3.65, 3.66

Assault see also Battery ability to carry out threat …. 3.25 actual or apparent ability …. 3.25, 3.26 belief in ability …. 3.26 knowledge of threat …. 3.24 apprehension of force …. 3.27 conditional threats …. 3.29 reasonable person …. 3.28 child sexual abuse …. 14.43 conditional threats …. 3.29, 3.30 defence of another …. 6.33

defence of property …. 6.37 definition …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32 elements …. 3.19 employer’s duty of care …. 9.44 evolution of law …. 1.39 false imprisonment, and …. 3.57 fault …. 3.31 injunctions …. 3.85 intention …. 3.19, 3.31, 3.32 knowledge of threat …. 3.24 limitation of actions …. 3.88 child sexual abuse …. 14.43 overview …. 3.2, 3.19 provocation …. 3.43, 3.44, 6.35, 6.36 Queensland position …. 3.37, 3.39 assault, definition …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32 common law, comparison …. 3.41–3.45 consent …. 3.42 defences …. 3.43–3.45, 6.32, 6.35 indirect force …. 3.41 provocation …. 3.43, 3.44, 6.35 self-defence …. 6.32 standard of proof …. 3.38 reasonable belief …. 3.19 remedies …. 3.75, 3.87 damages …. 3.75–3.84

injunctions …. 3.85 limitation of actions …. 3.88 protection orders …. 3.86 self-defence …. 6.32 telephone calls …. 3.22 silence …. 3.23 text messages …. 3.22 threat of imminent harm …. 3.19, 3.20 ability to carry out threat …. 3.24–3.26 apprehension of force …. 3.27, 3.28, 3.29 conditional threats …. 3.29, 3.30 imminent requirement …. 3.21 knowledge of threat …. 3.24 mere words …. 3.22, 3.23 positive act …. 3.20 telephone calls …. 3.22, 3.23 text messages …. 3.22 vicarious liability of employer …. 20.37

Auditors’ reports negligent misrepresentation …. 19.43

Australian Consumer Law breach of statutory duty …. 18.7 defective products …. 9.120, 9.128, 9.129 remedies …. 9.128 requirements for actions …. 9.128 safety defect, definition …. 9.128

time limit for actions …. 9.130 misleading or deceptive conduct see Misleading or deceptive conduct misrepresentation, and …. 19.3, 19.92 overview …. 1.50

Australian Law Reform Commission invasion of privacy …. 7.21, 7.28 statutory cause of action …. 7.29 types of interferences …. 7.30 vicarious liability …. 20.22

B Bailment at will …. 5.11 conversion …. 5.33, 5.89 actions between bailor and bailee …. 5.34 involuntary bailee …. 5.43, 5.47 re-delivery by bailee …. 5.46 third party interference …. 5.35 detinue …. 5.61 duty of care to bailors …. 9.123 overview …. 5.9 revocable bailment …. 5.11, 5.12 trespass to chattels …. 5.8, 5.9, 5.13 bailment at will …. 5.11 interference by third parties …. 5.12 revocable bailment …. 5.11, 5.12

title to sue …. 5.10, 5.12

Bankruptcy malicious prosecution …. 7.14

Barristers see also Solicitors contractual relationship …. 9.111 immunity from suit …. 9.111 application of immunity …. 9.115 Australian position …. 9.114 other jurisdictions …. 9.113 rationale …. 9.112 scope of immunity …. 9.111 negligent misrepresentation, and …. 19.17 overview …. 9.110 standard of care …. 11.14

Battery see also Assault aim of tort …. 3.3, 3.7 bodily contact …. 3.5, 3.7 anger or hostility …. 3.8, 3.9 everyday contact …. 3.7, 3.10–3.12 knowledge of contact …. 3.15 offensive contact …. 3.7 child sexual abuse …. 14.43 consent …. 3.11, 3.13, 3.14 implied consent …. 3.11, 3.14, 3.42, 6.7, 6.13 lack of consent …. 3.13 Queensland …. 3.42

sports participants …. 6.7 contributory negligence …. 6.60 defence of property …. 6.37 direct application of force …. 3.3, 3.4, 3.41 application, meaning …. 3.6 bodily contact requirement …. 3.5, 3.7–3.12 examples …. 3.5 passive obstruction …. 3.6 elements …. 3.3 everyday contact …. 3.7, 3.10–3.12 implied consent …. 3.11 objective standard …. 3.12 evolution of law …. 1.39 fault …. 3.3, 3.16–3.18 contributory negligence …. 6.60 implied consent …. 3.11, 3.14, 6.13 Queensland …. 3.42 sports participants …. 6.7 indirect application of force …. 3.4, 3.41 intention …. 3.16, 3.17, 3.18 knowledge of contact …. 3.15 limitation of actions …. 3.88 child sexual abuse …. 14.43 overview …. 3.2, 3.3 provocation …. 3.43, 3.44, 6.35 Queensland position …. 3.37, 3.39

assault, definition …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32 common law, comparison …. 3.41–3.45 consent …. 3.42 defences …. 3.43–3.45, 6.32, 6.35 indirect force …. 3.41 provocation …. 3.43, 3.44, 6.35 self-defence …. 6.32 standard of proof …. 3.38 remedies …. 3.75, 3.87 damages …. 3.75–3.84 injunctions …. 3.85 limitation of actions …. 3.88 protection orders …. 3.86 self-defence …. 6.31, 6.32 sports participants …. 6.7

Birth of child see Wrongful birth; Wrongful conception; Wrongful life Breach of duty animals …. 26.32 anticipation of negligence …. 11.80, 11.81 employment relationship …. 11.81 sudden emergencies …. 11.82 balancing of factors …. 11.83, 11.86 calculus of negligence …. 11.83, 11.84 example of process …. 11.87 reasonable response …. 11.85, 11.86

civil liability legislation …. 8.16, 11.34, 11.35 application of provisions …. 11.37 common law …. 11.35, 11.36 medical practitioners …. 11.74–11.76 not insignificant risk …. 11.38, 11.44, 11.45 obvious risk …. 11.63 precautions against harm …. 11.49, 11.63, 11.64, 11.85 professional standards …. 11.72, 11.74, 13.82, 13.83 public authorities …. 10.131, 10.132 reasonable response to risk …. 11.49, 11.85 contributory negligence …. 13.17, 13.18 court procedure …. 11.88 appeals …. 11.93–11.96 availability of jury trials …. 11.92 control of proceedings …. 11.89 directions to jury …. 11.91 questions of fact …. 11.88 questions of law …. 11.88 withholding case from jury …. 11.90 failure to warn …. 11.62 obvious risks …. 11.62, 11.63 foreseeable risk …. 8.7, 8.8, 8.14, 11.38, 11.39 chain of events …. 11.41 hindsight …. 11.42 Ipp Report …. 8.15, 8.16, 11.38 knowledge of risk …. 11.39

mere recognition …. 11.40 prospective determination …. 11.42 remote or unlikely risk …. 11.39, 11.51 hindsight …. 11.42, 11.48, 13.18 inference of negligence …. 11.89, 11.98 factual evidence …. 11.99 res ipsa loquitur …. 11.102–11.111 Ipp Report …. 8.15, 8.16, 11.38 medical practitioners …. 11.74–11.77 negligent misrepresentation …. 19.9, 19.53 question of fact …. 19.56 non-delegable duty …. 20.81 child sexual abuse …. 20.81, 20.82 intentional acts …. 20.81 strict liability …. 20.82 not insignificant risk …. 11.38, 11.44 application of provision …. 11.44 meaning …. 11.44, 11.45 obvious risks …. 11.62 definition …. 11.63 failure to warn …. 11.62, 11.63 onus of proof …. 11.97, 11.111 equally consistent evidence …. 11.98 factual evidence …. 11.99 inferences …. 11.98, 11.99 no case to answer …. 11.100, 11.101

res ipsa loquitur …. 11.104, 11.106, 11.111 overview …. 8.4, 8.14, 11.1, 11.3, 11.34 precautions against harm …. 11.46, 11.49, 11.57, 11.64 alternative systems …. 11.65 available at time of breach …. 11.58 balancing of factors …. 11.83, 11.86 burden of taking …. 11.60 civil liability legislation …. 11.49, 11.63, 11.64, 11.85 expense of precautions …. 11.60, 11.61 introduction after accident …. 11.66 more reasonable methods …. 11.65 obvious risks …. 11.62, 11.63 other considerations …. 11.64–11.66 reasonable precautions …. 11.59, 11.60 subsequent measures …. 11.66 warnings …. 11.62, 11.63, 11.86, 11.87 professional practice standards …. 11.71, 13.81 advice or warnings …. 11.74 civil liability legislation …. 11.72, 11.74, 13.82, 13.83 public authorities …. 10.131, 10.132 questions of law …. 8.22, 11.88 reasonable foreseeability …. 8.7, 8.8, 8.14, 11.38–11.42, 11.43 criticisms of approach …. 11.43 Ipp report …. 8.15, 8.16, 11.38 remote or unlikely risk …. 11.39, 11.51 reasonable response to risk …. 11.46, 11.47, 11.65

anticipation of negligence …. 11.80–11.82 balancing of factors …. 11.83–11.87 civil liability legislation …. 11.49, 11.85 customary standards …. 11.69, 11.70 hindsight …. 11.48 precautions against harm …. 11.46, 11.49, 11.57–11.66, 11.85, 11.86 probability of harm …. 11.51, 11.52, 11.56, 11.86 professional practice standards …. 11.71–11.74 relevant factors …. 11.46, 11.50 seriousness of harm …. 11.53–11.56 social utility of activity …. 11.67, 11.68 statutory standards …. 11.78, 11.79 res ipsa loquitur …. 11.102, 11.103 adducing specific evidence …. 11.105 control of res …. 11.110 onus of proof …. 11.104, 11.106, 11.111 ordinary explanation for injury …. 11.108, 11.109 type of accident …. 11.107 scope of duty, and …. 9.6, 9.7 seriousness of harm …. 11.53, 11.54 characteristics of plaintiff …. 11.55 time for assessing …. 11.56 social utility of activity …. 11.67 broadening of concept …. 11.68 standard of proof …. 11.97 equally consistent evidence …. 11.98

factual evidence …. 11.99 inferences …. 11.98, 11.99 no case to answer …. 11.100, 11.101 res ipsa loquitur …. 11.102–11.111 statutory standards …. 11.78 non-binding material …. 11.79

Breach of statutory duty Canadian position …. 18.5 causation …. 18.6, 18.34 licensing requirements …. 18.35 one-person companies …. 18.36 contributory negligence …. 18.40 criticisms of private action …. 18.5 defences …. 18.37 contributory negligence …. 18.40 illegality …. 18.39 voluntary assumption of risk …. 18.38 defining characteristic …. 18.2 delegated legislation …. 18.19 elements …. 18.6 employee safety …. 18.3, 18.11, 18.12, 18.16 establishing breach …. 18.6, 18.29, 18.31 absolute obligation …. 18.29, 18.30 civil liability legislation …. 18.33 public authorities …. 18.33 standard of care …. 18.32

government outsourcing, and …. 18.4 historical background …. 18.3 employee safety …. 18.3 private enterprise …. 18.4 illegality defence …. 18.39 imposition of duty on defendant …. 18.6, 18.20, 18.21 employers …. 18.22, 18.23 vicarious liability …. 18.23 inference of available action …. 18.8 adequacy of penalty for breach …. 18.18 delegated legislation …. 18.19 existing common law duty …. 18.10 history of statute …. 18.9 nature of damage …. 18.18 penalty for breach …. 18.17, 18.18 pre-existing law …. 18.9 protected class …. 18.16 purpose of statute …. 18.11, 18.12 rebuttal of presumptions …. 18.18 specified standard of conduct …. 18.13–18.15 subject matter of statute …. 18.11, 18.18 kind of harm intended to prevent …. 18.6, 18.24, 18.25 licensing requirements …. 18.35 nature of duty …. 18.29, 18.31 absolute obligation …. 18.29, 18.30 civil liability legislation …. 18.33

public authorities …. 18.33 standard of care …. 18.32 overview …. 18.1, 18.2 private cause of action …. 18.6, 18.7 delegated legislation …. 18.19 express provisions …. 18.7 inference of availability …. 18.8–18.19 silence as to availability …. 18.8 protected class …. 18.16 minors …. 18.26, 18.27 plaintiff as a member …. 18.6, 18.26–18.28 public in general …. 18.27 public authorities …. 18.33 United Kingdom …. 18.5 vicarious liability …. 18.23, 18.38 voluntary assumption of risk …. 18.38

Builders see Defective structures Bullying employer’s duty of care …. 9.44, 10.76

Business interests see also Interference with business interests duty of care …. 10.117 employer’s duty …. 10.75 relational loss …. 10.94–10.96

C Capacity to sue and be sued

intellectually disabled persons …. 1.26, 1.27 minors …. 1.21, 1.22 guardian ad litem …. 1.22 intention …. 1.23 liability for torts …. 1.23 next friend …. 1.22 parent and child …. 1.24, 1.25 overview …. 1.20

Cattle trespass see Animals Causation antecedent causes …. 12.25, 12.28 breach of statutory duty …. 18.6, 18.34 licensing requirements …. 18.35 one-person companies …. 18.36 ‘but for’ test …. 8.19, 12.22, 12.23, 12.32 antecedent causes …. 12.25 asbestos exposure …. 12.50 civil liability legislation …. 12.33, 12.34, 12.36, 12.37, 12.40 failure to warn …. 12.26 limitations of test …. 12.24, 12.25, 12.27, 12.69 civil liability legislation …. 12.3, 12.33 ‘but for’ test …. 12.33, 12.34, 12.36, 12.37, 12.40 evidentiary gaps …. 12.33, 12.39, 12.40 exceptional cases …. 12.39, 12.40 legally significant cause …. 12.87, 12.88 ‘necessary condition’ test …. 12.34–12.38

onus of proof …. 12.54, 12.55 scope of liability …. 12.57, 12.58, 12.87, 12.88 common law tests …. 12.3, 12.22, 12.27–12.32, 12.34 ‘but for’ test …. 12.23–12.26, 12.32 ‘common sense and experience’ test …. 12.22, 12.27, 12.32 antecedent causes …. 12.28 application of test …. 12.28, 12.29, 12.30 multiple causes …. 12.28, 12.29 normative considerations …. 12.28, 12.34 purpose of cause of action …. 12.30, 12.31 use of test …. 12.28, 12.30 contributory negligence …. 13.19, 13.20 plaintiff’s negligence …. 13.20 relevant conduct …. 13.19 evidentiary gaps …. 8.20, 12.33, 12.39, 12.40 exceptional cases …. 12.40–12.49 exceptional cases …. 12.39, 12.40, 12.41, 12.48, 12.52 material contribution to risk …. 12.44, 12.45, 12.47, 12.49 material increase in risk …. 12.42, 12.45, 12.46 meaning …. 12.41 mesothelioma …. 12.46, 12.47, 12.49 multiple or complex causes …. 12.43 multiple tortfeasors, distinction …. 12.52 nature of cases …. 12.42 intervening acts …. 12.59, 12.69, 12.70, 12.75 medical treatment …. 12.79, 12.80

natural phenomenon …. 12.72 plaintiff’s acts or omissions …. 12.71, 12.72 reasonable foreseeability …. 12.75, 12.77–12.80 requirements …. 12.73, 12.74, 12.75 The Orpesa …. 12.73 third parties …. 12.72 voluntary, deliberate or negligent acts …. 12.74, 12.75, 12.76 Ipp Report …. 8.20, 12.3 onus of proof …. 12.55 scope of liability …. 12.58 legally significant cause …. 12.81, 12.86, 12.88 civil liability legislation …. 12.87, 12.88 failure to warn …. 12.88, 12.89 multiple causes …. 12.85 public policy …. 12.82, 12.83, 12.84 multiple causes …. 12.24, 12.28, 12.29, 12.69, 12.85 multiple tortfeasors …. 12.51, 12.52 exceptional cases, distinction …. 12.52 ‘necessary condition’ test …. 12.34, 12.35 cases …. 12.35–12.38 failure to warn …. 12.38 more than one condition …. 12.35 normative considerations …. 12.28, 12.34, 12.81 onus of proof …. 12.53 civil liability legislation …. 12.54, 12.55 Ipp report …. 12.55

overview …. 8.19, 12.2, 12.21 reasonable foreseeability …. 12.61, 12.64 ‘egg-shell skull’ rule …. 12.66–12.68 events leading to damage …. 12.64 intervening acts …. 12.75, 12.77–12.80 meaning …. 12.65 real risk of damage …. 12.62, 12.63 wrongful death …. 16.12, 16.15 scope of liability …. 12.56, 12.60 civil liability legislation …. 12.57, 12.58, 12.87, 12.88 considerations …. 12.57, 12.58, 12.59, 12.81 depth of analysis …. 12.60 intervening acts …. 12.59, 12.69–12.80 legally significant cause …. 12.81–12.89 normative considerations …. 12.81 reasonable foreseeability …. 12.61–12.68, 12.75, 12.77–12.80 remoteness of damage …. 12.59, 12.61–12.68 standard of proof …. 12.53 wrongful death …. 16.11 ‘egg-shell skull’ rule …. 16.14 reasonable foreseeability …. 16.12, 16.15 remoteness of damage …. 16.11, 16.13

Children see Minors Civil liability legislation background to introduction …. 1.51 breach of duty …. 8.16, 11.34, 11.35

application of provisions …. 11.37 common law …. 11.35, 11.36 medical practitioners …. 11.74–11.76 not insignificant risk …. 11.38, 11.44, 11.45 obvious risks …. 11.63 precautions against harm …. 11.49, 11.63, 11.64, 11.85 professional practice standards …. 11.72, 11.74, 13.82, 13.83 public authorities …. 10.131, 10.132 reasonable response to risk …. 11.49, 11.85 causation …. 12.3, 12.33 ‘but for’ test …. 12.33, 12.34, 12.36, 12.37, 12.40 evidentiary gaps …. 12.33, 12.39, 12.40 exceptional cases …. 12.39, 12.40 legally significant cause …. 12.87, 12.88 ‘necessary condition’ test …. 12.34–12.38 onus of proof …. 12.54, 12.55 scope of liability …. 12.57, 12.58, 12.87, 12.88 concurrent tortfeasors …. 21.32 proportionate liability …. 21.32–21.42 contracts …. 1.30 contributory negligence …. 13.5 intoxication …. 13.12, 13.33–13.41, 13.44, 13.45 100% apportionment …. 13.26 standard of care …. 13.9 damage requirement …. 12.3, 12.6 harm, definition …. 12.6

scope of liability …. 12.57, 12.58, 12.87, 12.88 dangerous recreational activities …. 13.67, 13.70 definition …. 13.67 obvious risk …. 13.68, 13.69, 13.70 relevant principles …. 13.69 significant degree of risk …. 13.69 defences …. 13.1, 13.80 good Samaritans …. 13.99, 13.100 illegal activity …. 13.77–13.79 inherent risk …. 13.96 medical professionals …. 11.73, 13.88, 13.89, 13.91, 13.92 obvious risk …. 13.93 professional standards …. 13.82–13.87, 13.91 public safety entities …. 13.101 volunteers …. 13.102, 13.103 good Samaritans …. 11.29, 13.99, 13.100 gratuitous domestic services …. 15.105 meaning …. 15.106 nursing care …. 15.106 gratuitous services …. 15.96, 15.101 future services …. 15.100 hourly rate …. 15.103 interpretation issues …. 15.99, 15.100 meaning …. 15.102 no fault compensation …. 15.97 thresholds and limits …. 15.98

illegal activities …. 13.77, 13.79 indictable offences …. 13.78 reduction in damages …. 13.78 intentional infliction of psychiatric injury …. 7.8 intoxication …. 13.12, 13.33 defendant intoxicated …. 13.38, 13.39, 13.63 definitions …. 13.33 motor vehicle accidents …. 13.44, 13.45, 13.62, 13.63 plaintiff intoxicated …. 13.34–13.37, 13.62 standard of care …. 11.27 voluntary assumption of risk …. 13.62, 13.63 medical emergencies …. 11.29 medical professionals …. 11.74, 13.88 advice and warnings …. 11.74–11.76, 13.91, 13.92 Bolam principle …. 11.73, 11.76 health professional, definition …. 13.89 peer professional practice …. 13.88, 13.89 Western Australia …. 11.76, 13.89 non-delegable duty …. 20.84 non-pecuniary general damages …. 15.108 assessment …. 15.111–15.115 court’s considerations …. 15.115 injury scale values …. 15.112, 15.114 interest …. 15.147 Queensland …. 15.112–15.115 rules of court …. 15.113

terminology …. 15.108 thresholds and limits …. 15.109, 15.110 whole person impairment …. 15.114 obvious risk …. 11.63, 13.53, 13.62 animals …. 26.31 dangerous recreational activities …. 13.68, 13.69 defence, as …. 13.93 definition …. 11.63, 13.53 duty to warn …. 11.63, 13.93 professionals …. 13.87 voluntary assumption of risk …. 13.53, 13.68, 13.69 occupiers of premises …. 9.17 overview …. 1.51 personal injury damages …. 3.78, 15.152 dependency claims …. 16.45 future economic losses …. 15.142 gratuitous domestic services …. 15.105, 15.106 gratuitous services …. 15.96–15.103 illegal activities, and …. 13.77–13.79 loss of earning capacity …. 15.74, 15.81, 15.82 non-pecuniary general damages …. 15.108–15.115, 15.147 structured settlements …. 15.37 trespass to person …. 3.78 professional standards …. 11.18, 11.72, 13.82 advice or warnings …. 11.74, 13.86, 13.91, 19.55 defence, as …. 13.83

harm, definition …. 13.86 negligent misrepresentation …. 19.55 obvious risks …. 13.87 peer professional opinion …. 13.85 professional, definition …. 13.84 proportionate liability …. 21.32 apportionable claims …. 21.34 apportioning liability …. 21.41, 21.42 concurrent wrongdoer, definition …. 21.35, 21.36, 21.37, 21.38 excluded claims …. 21.39, 21.40 fraudulent wrongdoers …. 21.40 intentional wrongdoers …. 21.40 requirements …. 21.33 psychiatric injury …. 10.59 consequential psychiatric injury …. 10.46 foreseeability of harm …. 10.59 limits on liability …. 10.69, 10.70 recognised psychiatric illness …. 10.45 public authorities …. 10.131, 10.132 breach of statutory duty …. 18.33 common law principles …. 10.134 function, definition …. 10.133 negligent misrepresentation …. 19.41 policy or operational decisions …. 10.138 road authorities …. 10.148, 10.149, 10.150 standard of care …. 11.8

contributory negligence …. 13.9, 13.12 emergencies …. 11.29 intoxication …. 11.27, 13.12 knowledge at time …. 11.18 medical emergencies …. 11.29 medical practitioners …. 11.74–11.76 professionals …. 11.18, 11.72, 11.74, 13.82 trespass to land …. 4.21 trespass to person …. 3.78 voluntary assumption of risk …. 13.53 avoidance of risk …. 13.56 dangerous recreational activities …. 13.67–13.70 intoxication …. 13.62, 13.63

Civil proceedings malicious prosecution …. 7.14

Clergy vicarious liability …. 20.26

Clubs see Occupiers of premises Commonwealth duty of care …. 9.84 immigration detainees …. 9.84

Compensation see Damages; Personal injury damages; Wrongful death Competition and Consumer Act see Australian Consumer Law; Misleading or deceptive conduct Concurrent tortfeasors see also Contribution between tortfeasors

causation …. 12.51, 12.52 costs …. 21.12 joint tortfeasors …. 21.2, 21.4, 21.8, 21.11 breach of common duty …. 21.5 Brinsmead v Harrison …. 21.4, 21.6, 21.10 engagement in concerted action …. 21.5 exemplary damages …. 15.20, 21.7 legislation …. 21.6–21.8, 21.10 several tortfeasors, distinction …. 21.4, 21.10 vicarious liability …. 21.5 legislation …. 21.10, 21.11 Brinsmead v Harrison …. 21.6, 21.10 costs …. 21.12 joint tortfeasors …. 21.6–21.8, 21.10 limits on damages …. 21.12, 21.14 proportionate liability …. 21.32–12.42 limits on damages …. 21.12, 21.14 overview …. 12.51, 21.2, 21.3, 21.11, 21.28 proportionate liability …. 21.30, 21.32 apportionable claims …. 21.34 apportioning liability …. 21.41, 21.42 background to proposals …. 21.28, 21.30, 21.31 civil liability legislation …. 21.32–21.42 concurrent wrongdoer, definition …. 21.35, 21.36, 21.37, 21.38 excluded claims …. 21.39, 21.40 fraudulent wrongdoers …. 21.40

intentional wrongdoers …. 21.40 Ipp report …. 21.32 requirements …. 21.33 several tortfeasors …. 21.2, 21.4, 21.9, 21.11 joint tortfeasors, distinction …. 21.4, 21.10 legislation …. 21.10 single actions …. 21.13 joinder of parties …. 21.14 solidary liability …. 21.3, 21.28 effect of principle …. 21.29 Ipp report …. 21.32 successive tortfeasors, distinction …. 21.3

Consent see also Volenti non fit injuria battery …. 3.11, 3.13, 3.14, 6.13 everyday contact …. 3.11 Queensland …. 3.42 sports participants …. 6.7 capacity to consent …. 6.18 guardianship legislation …. 6.18, 6.24 minors …. 6.13, 6.19–6.21 defamation …. 23.100, 23.101 emergency medical treatment …. 6.22 guardianship legislation …. 6.24 minors …. 6.23 statutory provisions …. 6.23 fraud …. 6.10, 6.11, 6.17

implied consent …. 3.11 battery …. 3.11, 3.14, 3.42, 6.7, 6.13 defamation …. 23.101 sports participants …. 6.7 trespass to land …. 4.23, 4.27, 4.28, 4.29, 4.30, 4.31, 4.33, 6.6, 6.9, 6.28 medical treatment …. 6.14 capacity to consent …. 6.13, 6.18–6.21 emergency treatment …. 6.22–6.24 fraud …. 6.10, 6.11, 6.17 guardianship legislation …. 6.18, 6.24 minors …. 6.13, 6.19–6.21, 6.23 requirements for validity …. 6.15 right to refuse …. 6.25, 6.26 scope of consent …. 6.16 voluntariness …. 6.10, 6.11, 6.17 negligence …. 13.48 passing off …. 24.28 private nuisance …. 25.61 revocation or withdrawal …. 4.31, 4.38, 4.41, 6.27, 6.29 communication …. 4.32 implied licence …. 4.33, 6.28 notice …. 4.32, 4.33 police offices …. 4.35, 6.28 prior communication …. 4.33 reasonable time to leave …. 4.34, 6.28 trespass defences …. 6.5, 6.8

battery …. 3.13, 6.7, 6.13 capacity to consent …. 6.13, 6.18–6.21 criminal acts …. 6.9 duress …. 6.12 fraud …. 6.10, 6.11 medical treatment …. 6.10, 6.11, 6.14–6.26 minors …. 6.13, 6.19–6.21, 6.23 requirements for validity …. 6.8 revocation of consent …. 6.27–6.29 scope of consent …. 6.9 sports participants …. 6.7 voluntariness …. 6.10–6.12 trespass to land …. 4.23, 4.24 different purpose …. 4.25 implied licence …. 4.23, 4.27, 4.28, 4.29, 4.30, 4.31, 4.33, 6.6, 6.9, 6.28 mixed purposes …. 4.26 revocation of consent …. 4.31–4.35, 4.38, 4.41, 6.28

Conspiracy agreement between persons …. 24.61, 24.62 companies …. 24.63 purpose of agreement …. 24.67, 24.70 criminal liability …. 24.60 damage requirement …. 24.61, 24.71 damages …. 24.73 exemplary damages …. 24.74 definition …. 24.60

elements …. 24.61 intention …. 24.61, 24.64, 24.66 agreement of purpose …. 24.67 breach of contract …. 24.69 lawful act …. 24.64, 24.70 plaintiff as target …. 24.65 purpose of agreement …. 24.67, 24.70 statutory breach …. 24.69 unlawful act …. 24.64, 24.68, 24.69 justification defence …. 24.72 lawful act to injure …. 24.64, 24.70 justification defence …. 24.72 overview …. 24.1, 24.60 plaintiff as target …. 24.65 purpose of agreement …. 24.67, 24.70 unlawful act to injure …. 24.64, 24.68 breach of contract …. 24.69 statutory breach …. 24.69

Consumer leases repossession of goods …. 5.16

Consumer protection see also Australian Consumer Law statutory provisions …. 1.50

Contemptuous damages …. 1.17, 15.18 Contract see also Interference with contractual relations civil liability legislation …. 1.30 concurrent liability …. 1.29

conspiracy …. 24.69 conversion …. 5.30 damages for breach …. 1.30 defective products …. 1.41, 9.121 employer’s duty to employees …. 9.26 safe workplace …. 9.26, 9.29 evolution of negligence …. 1.40, 1.41 exclusion of liability clauses …. 13.1, 13.104 interpretation …. 13.104, 13.105 false imprisonment …. 3.63 innocent misrepresentation …. 19.2 negligence, and …. 1.30 overview …. 1.30 solicitor’s duty …. 9.107, 9.111 torts, and …. 1.29 differences between actions …. 1.30 wrongful death …. 16.1, 16.4

Contractors see Independent contractors Contribution between tortfeasors assessment of contribution …. 21.22, 21.29 just and equitable …. 21.22, 21.24 possible outcomes …. 21.23 claimant requirements …. 21.17 common law …. 21.15, 21.16 indemnities …. 21.25, 21.27 Lister v Romford Ice …. 21.25, 21.27

statutory modification …. 21.26 legislation …. 21.6, 21.16 assessment of contribution …. 21.22 liability of claimant …. 21.17 liability of tortfeasor …. 21.17, 21.19 if sued, meaning …. 21.20 res judicata …. 21.21 limitation of actions …. 14.64–14.67 overview …. 21.15, 21.18 requirements for claimants …. 21.17 same damage …. 21.17

Contributory negligence animals …. 26.21 apportionment of liability …. 1.49, 6.60, 13.5, 13.6, 13.21 appeals …. 13.46, 13.47 assessing culpability …. 13.22, 13.23, 13.24 court’s discretion …. 13.22 intoxication …. 13.40, 13.41 ‘just and equitable’ apportionment …. 13.21, 13.22–13.24 100% apportionment …. 13.25, 13.26 private nuisance …. 25.59 reasonableness of conduct …. 13.24 battery …. 6.60 breach of duty …. 13.17, 13.18 hindsight …. 13.18 breach of statutory duty …. 18.40

causation …. 13.19, 13.20 plaintiff’s negligence …. 13.20 relevant conduct …. 13.19 civil liability legislation …. 13.5 intoxication …. 13.12, 13.33–13.41, 13.44, 13.45 100% apportionment …. 13.26 standard of care …. 13.9 common law …. 1.49, 13.2, 13.5, 13.6 ‘agony of the moment’ principle …. 13.4 ‘last opportunity’ rule …. 13.3 modern position …. 13.5 original position …. 13.2–13.4 conversion …. 6.61 dangerous animals …. 26.14 deceit …. 19.90 defeat of claims …. 13.25, 13.26 domestic service by child …. 17.22 elements …. 13.7 emergencies …. 13.14 employees …. 13.15 knowledge of dangerous conduct …. 13.16 loss of employee services …. 17.9 establishing …. 13.7 failure to take reasonable care …. 13.8 breach of standard …. 13.17, 13.18 objective standard …. 13.8, 13.9

standard of care …. 13.8–13.16 failure to use safety devices …. 13.28 reduction of damages …. 13.29, 13.30 fault or negligence …. 6.60 intoxication …. 13.12, 13.13, 13.31, 13.32 apportionment of liability …. 13.40, 13.41 civil liability legislation …. 13.12, 13.33–13.41, 13.44, 13.45 defendant intoxicated …. 13.38, 13.39 definitions …. 13.33 impairment of capacity …. 13.36 motor vehicle accidents …. 13.12, 13.42–13.45 plaintiff intoxicated …. 13.34–13.37 rebuttal of presumption …. 13.35, 13.39 statutory presumptions …. 13.12, 13.31–13.45 minors …. 13.11 misleading or deceptive conduct …. 19.112 negligent misrepresentation …. 19.59 objective standard …. 13.8, 13.9 overview …. 1.49, 6.60, 13.1, 13.2, 13.5, 25.101 private nuisance …. 25.59, 25.101 public nuisance …. 25.101 spouse …. 17.20 standard of care …. 13.9, 13.10 child plaintiffs …. 13.11 civil liability legislation …. 13.9, 13.12 emergencies …. 13.14

employees …. 13.15, 13.16 intoxication …. 13.12, 13.13 objective standard …. 13.8, 13.9 statutory modification …. 1.49, 13.5 statutory presumptions …. 13.5, 13.27 failure to use safety devices …. 13.28–13.30 intoxication …. 13.12, 13.31–13.45 statutory schemes …. 13.5, 13.6 trespass defences …. 6.60 failure to take care …. 6.63 unintentional consequences …. 6.62 wrong, definition …. 6.61 wrong, definition …. 6.61, 13.6 wrongful death …. 16.44

Conversion actual possession …. 5.5, 5.30 bailment …. 5.33, 5.89 actions between bailor and bailee …. 5.34 involuntary bailee …. 5.43, 5.47 re-delivery by bailee …. 5.46 third party interference …. 5.35 cheques …. 5.88 constructive possession …. 5.5, 5.30 contributory negligence …. 6.61 damages …. 5.57, 5.73, 5.83 aggravated damages …. 5.76

cheques …. 5.88 damaged or destroyed goods …. 5.75 date of conversion …. 5.85, 5.86 exemplary damages …. 5.76 foreseeable economic loss …. 5.90 increase in value …. 5.87 interest in goods …. 5.74 limitation of actions …. 5.102 limited interest of plaintiff …. 5.89 onus of proving market value …. 5.85 return of goods …. 5.84 value of converted goods …. 5.85, 5.87 defences …. 6.45, 6.64 contributory negligence …. 6.61 illegal acts …. 6.67 jus tertii …. 6.45 loss of possession …. 6.46 destruction of chattel …. 5.41 detinue, distinction …. 5.57 direct interference …. 5.29, 5.39 elements …. 5.29 fault …. 5.29, 5.55 finders of goods …. 5.38 fraudulent misrepresentation …. 19.66 injunctions …. 5.98 intention …. 5.40, 5.48, 5.55

limitation of actions …. 5.102, 14.12 commencement of period …. 5.103, 14.12 more than one wrongful act …. 5.104 mining rights …. 4.18 mistake …. 6.64 overview …. 1.5, 5.1, 5.29 possession of goods …. 5.5 actual possession …. 5.30 company goods and equipment …. 5.32 constructive possession …. 5.30 false representations …. 5.54 finders …. 5.38 immediate right …. 5.30, 5.33 occupiers of land …. 5.37 ownership without possession …. 5.31 remedies …. 5.71 damages …. 5.73–5.76, 5.83–5.90, 5.102 injunctions …. 5.98 self-help …. 5.72 representations of possession …. 5.54 repugnant dealing …. 5.29, 5.39 intention …. 5.40, 5.48 representations of possession …. 5.54 wrongful delivery …. 5.44–5.47 wrongful destruction or alteration …. 5.41 wrongful detention …. 5.48, 5.49

wrongful disposition …. 5.53 wrongful taking …. 5.42, 5.43 wrongful use …. 5.50–5.52 sale and delivery …. 5.53 purchasers in good faith …. 5.53 title to sue …. 5.29, 5.30 bailment …. 5.33–5.35 co-owners …. 5.36 company goods and equipment …. 5.32 finders …. 5.38 occupiers of land …. 5.37 ownership without possession …. 5.31 terms of contract …. 5.30 wrongful delivery …. 5.44 involuntary bailee …. 5.47 innocent delivery …. 5.45 re-delivery by bailee …. 5.46 wrongful destruction or alteration …. 5.41 wrongful detention …. 5.48 intention to retain …. 5.48 provisional refusal …. 5.49 wrongful disposition …. 5.53 purchasers in good faith …. 5.53 wrongful taking …. 5.42 innocent receivers …. 5.43 involuntary bailee …. 5.43

wrongful use …. 5.50, 5.51, 5.52

Corporal punishment …. 6.54 Corporations conspiracy …. 24.63 defamation …. 22.83 aggravated damages …. 23.125 damages …. 22.83, 23.125 excluded corporations …. 22.84, 22.85 restricted right to action …. 22.84 subsidiaries …. 22.85 interference with contractual relations …. 24.45 misleading or deceptive conduct …. 19.95 directors …. 19.97 employees or agents …. 19.97 states or territories …. 19.96

Costs concurrent tortfeasors …. 21.12 malicious prosecution …. 7.18 nominal damages …. 15.17 personal injuries damages …. 15.149

Criminal law conspiracy …. 24.60 deterrence and punishment …. 1.34, 1.35 initiation of proceedings …. 1.31 intention …. 1.33 onus of proof …. 1.32

torts, and …. 1.31 deterrence and punishment …. 1.34, 1.35 intention …. 1.33 onus of proof …. 1.32

Criminal offences deprivation of liberty …. 3.49 domestic violence …. 3.35 stalking …. 3.33, 3.34 victims of crime compensation …. 1.48, 3.34

Criminal prosecution malicious prosecution …. 7.14

Crown authority defence to trespass …. 6.59 seizure and destruction of property …. 6.59

D Damage requirement see also Causation conspiracy …. 24.61, 24.71 deceit …. 19.67, 19.82 reasonable foreseeability …. 19.83, 19.85 injurious falsehood …. 22.97, 24.89, 24.96 reasonable foreseeability …. 24.97 special damage …. 24.97 interference with contractual relations …. 24.40, 24.55 intimidation …. 24.82 legally significant cause …. 12.81, 12.86, 12.88

civil liability legislation …. 12.87, 12.88 failure to warn …. 12.88, 12.89 multiple causes …. 12.85 public policy …. 12.82, 12.83, 12.84 malicious prosecution …. 7.11, 7.18 misfeasance in public office …. 18.53, 18.62 foreseeability of harm …. 18.63 negligence …. 8.4, 8.17, 12.1, 12.2, 25.95, 25.100 considerations …. 12.2 Ipp report …. 12.3, 12.58 questions of law …. 8.22 reasonable foreseeability …. 8.7, 8.8, 8.18, 12.61–12.68, 12.75, 12.77–12.80 recognised kind of damage …. 12.2, 12.4–12.6 recognition of damage …. 12.7–12.20 remoteness of damage …. 8.8, 12.59, 12.61–12.68 scope of liability …. 12.2, 12.56–12.89 negligent misrepresentation …. 19.9, 19.57 reasonable foreseeability …. 19.58 nuisance …. 25.1, 25.100 overview …. 12.1 passing off …. 24.8, 24.20 private nuisance …. 25.4, 25.53, 25.97, 25.100 public nuisance …. 25.77, 25.97, 25.100 reasonable foreseeability …. 8.7, 8.8, 8.18, 12.61, 12.64 deceit …. 19.83, 19.85

‘egg-shell skull’ rule …. 12.66–12.68 events leading to damage …. 12.64 injurious falsehood …. 24.97 intervening acts …. 12.75, 12.77–12.80 meaning …. 12.65 negligent misrepresentation …. 19.58 private nuisance …. 25.53 real risk of damage …. 12.62, 12.63 wrongful death …. 16.12, 16.15 recognised kind of damage …. 12.2, 12.4, 12.7 alternative terms …. 12.5 civil liability legislation …. 12.6 recognition of damage …. 12.7, 12.8 anxiety or vexation …. 12.15 grief …. 12.16 illegal activities …. 12.9 loss of chance …. 12.18–12.20 psychiatric illness …. 12.16, 12.17 unquantifiable loss …. 12.10 wrongful birth …. 12.13 wrongful conception …. 12.14 wrongful life …. 12.11, 12.12 remoteness of damage …. 12.59, 12.61 reasonable foreseeability …. 8.8, 12.61–12.68 wrongful death …. 16.11, 16.13 scope of liability …. 12.2, 12.56, 12.60

civil liability legislation …. 12.57, 12.58, 12.87, 12.88 considerations …. 12.57, 12.58, 12.59, 12.81 depth of analysis …. 12.60 intervening acts …. 12.59, 12.69–12.80 legally significant cause …. 12.81–12.89 normative considerations …. 12.81 reasonable foreseeability …. 12.61–12.68, 12.75, 12.77–12.80 remoteness of damage …. 12.59, 12.61–12.68

Damages see also Personal injury damages; Property damage aggravated damages see Aggravated damages breach of contract …. 1.30 categories of damages …. 1.17, 15.13–15.28 compensatory damages …. 1.17, 1.34, 15.25–15.28 aim of damages …. 15.28, 15.31 ‘egg-shell skull’ rule …. 15.30 general damages …. 15.27 indemnity principle …. 15.31, 15.32, 15.133 loss of employee services …. 17.8 lump sum rule …. 15.36 mitigation of damage …. 15.39–15.44 once and for all rule …. 15.33–15.35 special damages …. 15.27 trespass to land …. 4.54–4.60 trespass to person …. 3.77, 3.78, 3.84 concurrent tortfeasors …. 21.12, 21.14 conspiracy …. 24.73, 24.74

contemptuous damages …. 1.17, 15.18 conversion …. 5.57, 5.73, 5.83 aggravated damages …. 5.76 cheques …. 5.88 damaged or destroyed goods …. 5.75 date of conversion …. 5.85, 5.86 exemplary damages …. 5.76 foreseeable economic loss …. 5.90 increase in value …. 5.87 interest in goods …. 5.74 limitation of actions …. 5.102 limited interest of plaintiff …. 5.89 onus of proving market value …. 5.85 return of goods …. 5.84 value of converted goods …. 5.85, 5.87 costs …. 15.17 deceit …. 19.84, 19.88 aggravated damages …. 19.89 consequential loss …. 19.84 distress …. 19.88 exemplary damages …. 19.89 loss of profits …. 19.87 physical injury …. 19.88 psychological injury …. 19.88 purchasers of goods …. 19.86 reasonable foreseeability of loss …. 19.85

defamation see Defamation detinue …. see Detinue ‘egg-shell skull’ rule …. 15.30 employers …. 17.1 loss of employee services …. 17.7–17.9 exemplary see Exemplary damages general damages …. 15.27 indemnity principle …. 15.31, 15.32, 15.133 injurious falsehood …. 24.98 interference with contractual relations …. 24.58 intimidation …. 24.84, 24.85 loss of consortium and servitium …. 17.10, 17.17–17.19 contributory negligence …. 17.20 wife’s position …. 17.11 wrongful death …. 16.31 loss of employee services …. 17.7, 17.8 contributory negligence …. 17.9 lump sum rule …. 15.36 malicious prosecution …. 7.19 misleading or deceptive conduct …. see Misleading or deceptive conduct mitigation of damage …. 15.39–15.44 negligent misrepresentation …. 19.60–19.61 nominal damages …. 1.17, 15.14–15.17 trespass …. 15.14 trespass to land …. 4.52

trespass to person …. 3.76 once and for all rule …. 15.33–15.35 overview …. 1.16, 1.30, 1.34, 15.1, 15.12 parents …. 17.1 domestic service by child …. 17.21, 17.24 seduction of daughter …. 17.24 passing off …. 24.30 personal injury see Personal injury damages private nuisance …. see Private nuisance property damage …. 15.45 benefit from damage …. 15.47 consequential losses …. 15.49–15.52 cost of repairs …. 15.46 diminished value …. 15.46 ‘egg-shell skull’ rule …. 15.30 loss of use of funds …. 15.50, 15.51 opportunity cost …. 15.51 profit-making property …. 15.49 replacement costs …. 15.48 public nuisance …. 25.102 restitutio in integrum …. 15.51 special damages …. 15.27 spouse …. 17.1 contributory negligence …. 17.20 husband’s action …. 17.10, 17.17–17.20 loss of consortium and servitium …. 16.31, 17.10, 17.11, 17.17–17.20

wrongful death …. 16.31 trespass to chattels …. 5.57, 5.73, 5.77 aggravated damages …. 5.76 cost of repairs …. 5.80 damaged or destroyed goods …. 5.75, 5.79 exemplary damages …. 5.76 foreseeable consequential loss …. 5.81 interest in goods …. 5.74 limitation of actions …. 5.102 non-economic loss …. 5.82 permanent deprivation of goods …. 5.78 sale without repair …. 5.80 trespass to land …. 4.51, 4.54, 4.70 aggravated damages …. 4.61, 4.63, 4.64 benefit from trespass …. 4.53 consequential losses …. 4.59 cost of reinstatement …. 4.57, 4.58 exemplary damages …. 4.61, 4.62 material damage …. 4.55 mental trauma …. 4.64 no damage to land …. 4.52 severance of chattels …. 4.60 value of land …. 4.56, 4.57, 4.58 trespass to person …. 3.75, 3.77, 3.84 aggravated damages …. 3.79, 3.80–3.82, 3.84 civil liability legislation …. 3.78

exemplary damages …. 3.79, 3.83, 3.84 no loss suffered …. 3.76 wrongful birth …. 15.41 wrongful conception …. 8.6, 12.14, 15.28, 15.41 wrongful death see Wrongful death

Dangerous animals see Animals De facto spouse …. 16.17 Deceit agents …. 19.77 ambiguous statements …. 19.74 Australian Consumer Law, and …. 1.50, 19.3, 19.92 contributory negligence …. 19.90 damage requirement …. 19.67, 19.82 reasonable foreseeability …. 19.83, 19.85 damages …. 19.84, 19.88 aggravated damages …. 19.89 consequential loss …. 19.84 distress …. 19.88 exemplary damages …. 19.89 loss of profits …. 19.87 measure of damages …. 19.84 physical injury …. 19.88 psychological injury …. 19.88 purchasers of goods …. 19.86 reasonable foreseeability of loss …. 19.85 disclaimers …. 19.79

elements …. 19.67 historical background …. 19.65, 19.66 intended reliance …. 19.67, 19.78 knowledge of falsity …. 19.67, 19.72, 19.80 agents …. 19.77 ambiguous statements …. 19.74 consciousness of damage …. 19.73 directors …. 19.76 initially true statements …. 19.75 mere carelessness …. 19.73 limitation of actions …. 19.91 misrepresentations of fact …. 19.67, 19.69 silence …. 19.70, 19.71 onus of proof …. 19.68 overview …. 19.2, 19.64 reliance on representation …. 19.80, 19.81 intended reliance …. 19.67, 19.78

Declaratory judgments advantages …. 15.4 disadvantages …. 15.5 jurisdiction …. 15.4 overview …. 15.3

Declaratory theory of law …. 1.58, 1.59 Defamation see also Injurious falsehood aggravated damages …. 15.24, 23.115, 23.116, 23.121–23.125 corporations …. 23.125

distress and hurt …. 23.116, 23.121, 23.122 justification defence, and …. 23.122–23.123 aim of law …. 22.1, 22.11 apologies …. 23.104, 23.122, 23.131–23.133 capable of defamatory meaning …. 22.28, 22.29, 22.30, 22.61 current community standards …. 22.36 intention to defame …. 22.32 objective test …. 22.28, 22.31 ordinary reasonable reader …. 22.31 sectional attitudes of society …. 22.33–22.35 choice of law …. 22.20 court’s considerations …. 22.21 common law …. 22.12 corporations …. 22.83 aggravated damages …. 23.125 damages …. 22.83, 23.125 excluded corporations …. 22.84, 22.85 restricted right to action …. 22.84 subsidiaries …. 22.85 damages …. 23.1, 23.112–23.140 aggravated damages …. 15.24, 23.120–23.125 appeals …. 23.138–23.140 assessment …. 23.117–23.118 corporations …. 22.83, 23.125 distress and hurt …. 23.116, 23.121 economic loss …. 23.124

exemplary damages …. 15.23, 23.113 jury trials …. 23.138, 23.140 mitigation of damage …. 23.131–23.137 non-economic loss …. 23.115–23.129, 23.134 objectives …. 23.116 partnerships …. 22.87 reparation for harm …. 23.116 reputation …. 23.120–23.121, 23.134 state of defendant’s mind …. 23.114 vindication of reputation …. 23.115, 23.116, 23.117, 23.126–23.129 defamatory matter …. 22.25, 22.26, 22.47 capable of defamatory meaning …. 22.28, 22.29–22.36, 22.61 causing shunning or avoidance …. 22.38, 22.46 disparaging statements …. 22.42, 22.43 hatred, contempt or ridicule …. 22.38, 22.39, 22.40 hypothetical referee …. 22.28, 22.29–22.36 illegal activities …. 22.44 injury in trade or profession …. 22.38, 22.45 injury to feelings …. 22.43 injury to reputation …. 22.37 lowering estimation of others …. 22.38, 22.41–22.44 meaning …. 22.26 objective standard …. 22.28, 22.31 pleading defamatory meaning …. 22.47–22.60 tests to determine …. 22.27, 22.28, 22.31, 22.37 defamatory on the facts …. 22.61

appeals …. 22.63 determination of questions of fact …. 22.62 jury trials …. 22.62, 22.63 disclaimers …. 22.69 elements …. 22.25 exemplary damages …. 15.23, 23.113 freedom of expression, and …. 23.1 historical background …. 22.2, 22.5 Australia …. 22.5–22.7 jurisdictional disparity …. 22.6 libel …. 22.3, 22.13 slander …. 22.3, 22.13 hypothetical referee …. 22.28, 22.29, 22.30 current community standards …. 22.36 intention to defame …. 22.32 objective test …. 22.28, 22.31 ordinary reasonable reader …. 22.31 sectional attitudes of society …. 22.33–22.35 injunctions …. 1.19, 15.7, 23.1, 23.105 interlocutory injunctions …. 23.106–23.110 permanent injunctions …. 23.111 injurious falsehood, comparison …. 24.101 intention to defame …. 22.32, 22.67 international publications …. 22.22, 22.24 internet …. 22.6, 22.19, 22.23, 22.78, 22.96 internet service providers …. 22.91, 22.92

jurisdiction …. 22.19 appropriate forum …. 22.22, 22.23, 22.24 choice of law …. 22.6, 22.20, 22.21 forum shopping …. 22.19 international publications …. 22.22, 22.24 internet …. 22.6, 22.19, 22.23 pre-national legislation …. 22.6, 22.23 residence …. 22.24 jury trials …. 22.63 damages …. 23.138, 23.140 questions of fact …. 22.62 libel …. 22.3, 22.13, 22.14 broadcasts …. 22.17 durable and transient forms …. 22.17 nature of action …. 22.14 slander, distinction …. 22.13, 22.18, 23.97 statutory abolition …. 22.18 limitation period …. 22.94 misleading or deceptive conduct …. 22.95, 22.99 advantages of actions …. 22.97 information providers …. 22.97, 22.98 supply of goods or services …. 22.98 unincorporated individuals …. 22.96 mitigation of damage …. 23.131–23.137 apologies …. 23.132–23.133 lack of good reputation …. 23.134–23.136

national defamation law …. 22.8, 22.9, 22.18 application …. 22.8 background to introduction …. 22.5–22.7 defences …. 22.93, 23.2 draft Bills …. 22.7 effect of legislation …. 22.9 jurisdiction …. 22.19–22.24 jurisdictional differences …. 22.10 overview …. 22.1, 22.11 parties to actions …. 22.81 corporations …. 22.83–22.85 death of plaintiff …. 22.81, 22.82 partnerships …. 22.86, 22.87 republishers …. 22.88–22.93 pleading defamatory meaning …. 22.47 context of communication …. 22.50, 22.51 implied meaning …. 22.54, 22.55, 22.56 limits of action …. 22.48, 22.49 mode of publication …. 22.50 more than one imputation …. 22.48 natural and ordinary meaning …. 22.50, 22.52, 22.53 strained or forced interpretations …. 22.56 true innuendo …. 22.50, 22.57–22.60 unreasonable interpretations …. 22.56 publication …. 22.25, 22.75 comprehension of matter …. 22.77

exceptions …. 22.76 internet or email …. 22.78 republication …. 22.79, 22.80 spouses …. 22.76 unauthorised interception …. 22.76 reference to plaintiff …. 22.25, 22.64 business names …. 22.73 disclaimers …. 22.69 express identification …. 22.65–22.69 fictitious names …. 22.67 groups of individuals …. 22.74 indirect identification …. 22.70–22.73 intention to refer to another …. 22.68 invitations to identify …. 22.72 means of identification …. 22.66 more than one person …. 22.68 photographs or pictures …. 22.66 question of fact …. 22.64 relevant test …. 22.64 subsequent publications …. 22.72 remedies …. 23.1, 23.104 damages …. 23.112–23.140 injunctions …. 1.19, 15.7, 23.105–23.111 republication …. 22.79, 22.80 permanent injunctions …. 23.111 republishers …. 22.88

control of property or means …. 22.89 control over material …. 22.90 fresh cause of action …. 22.88 innocent dissemination …. 22.93 internet service providers …. 22.91, 22.92 slander …. 22.3, 22.13, 22.15 absence of damage …. 23.97 broadcasts …. 22.17 durable and transient forms …. 22.17 exceptional cases …. 22.16 libel, distinction …. 22.13, 22.18, 22.18, 23.97 nature of action …. 22.15 proof of loss …. 22.15 statutory abolition …. 22.18 spouse …. 22.76 survival of causes of action …. 16.52, 22.81

Defamation defences absolute privilege …. 23.16, 23.17 common law …. 23.17 judicial proceedings …. 23.24–23.31 officers of state …. 23.32 parliamentary proceedings …. 23.16, 23.18–23.23 consent …. 23.100 implied consent …. 23.101 constitutional protection …. 23.71, 23.72 government or political matters …. 23.75

implied freedom …. 23.72–23.77 loss of defence …. 23.77 malice …. 23.77 reasonable publication …. 23.76 requirements of defence …. 23.74 scope of protection …. 23.73 state constitutions …. 23.72 contextual truth …. 23.11, 23.12 example of defence …. 23.14 nature of defence …. 23.13 pleading …. 23.15 fair comment …. 23.78 coupling of opinion and facts …. 23.83 expressions of opinion …. 23.80–23.83 facts underlying opinion …. 23.82 fair, meaning …. 23.87 malice …. 23.88–23.90 principles of defence …. 23.79 public interest …. 23.84–23.86 public performance …. 23.86 understanding as opinion …. 23.81 honest opinion …. 23.78, 23.91 loss of defence …. 23.92 innocent dissemination …. 22.93, 23.93 availability of defence …. 23.94, 23.95 author or originators …. 23.96

broadcasters …. 23.96 common law …. 23.94 defamation legislation …. 23.95, 23.96 internet service providers …. 23.94 subordinate distributor, definition …. 23.95 judicial proceedings …. 23.24, 23.27 Australian court, definition …. 23.30 common law …. 23.25–23.28 defamation legislation …. 23.29, 23.30 other legislation …. 23.31 professional disciplinary bodies …. 23.28 reports …. 23.60, 23.61 Royal Commissions …. 23.31 solicitor client communications …. 23.26 justification (truth) …. 23.4, 23.7 accuracy of imputation …. 23.6, 23.8 aggravated damages, and …. 23.122–23.123 common law …. 23.5, 23.6 conviction of an offence …. 23.9 multiple imputations …. 23.10 substantially true …. 23.8 national defamation laws …. 22.93, 23.2 offer to make amends …. 23.102 acceptance of offer …. 23.103 requirements …. 23.102 overview …. 22.11, 23.1, 23.2

parliamentary proceedings …. 23.16, 23.18 common law …. 23.19, 23.20 defamation legislation …. 23.19, 23.21, 23.22 other legislation …. 23.23 parliamentary body, definition …. 23.22 parliamentary reports …. 23.60, 23.62 pleading …. 23.3 contextual truth …. 23.15 multiple imputations …. 23.10 protected reports …. 23.58 common law …. 23.60–23.63 defamation legislation …. 23.64–23.70 fair and accurate reports …. 23.59, 23.64 judicial proceedings …. 23.60, 23.61 parliamentary proceedings …. 23.60, 23.62 public concern proceedings …. 23.65–23.67 public documents …. 23.68–23.70 public interest proceedings …. 23.60, 23.63 relevant principles …. 23.59 social objects …. 23.58 public concern proceedings …. 23.65 definition …. 23.66 inclusions …. 23.66 loss of defence …. 23.67 public documents …. 23.68 advancement of education …. 23.70

definition …. 23.69 information of the public …. 23.70 loss of defence …. 23.70 qualified privilege …. 23.33, 23.71 application of principles …. 23.36 audience at large …. 23.44 categories of privilege …. 23.37 common interest …. 23.41–23.44 common law …. 23.34–23.46, 23.47 defamation legislation …. 23.47–23.49 defence of reputation or property …. 23.43 gossip or curiosity …. 23.42 identification of occasion of privilege …. 23.36 improper motive …. 23.50, 23.51 legal or moral duty to publish …. 23.36, 23.39 loss of privilege …. 23.49, 23.50–23.57 malice …. 23.49, 23.50, 23.51–23.57 policy behind defence …. 23.33 political communication …. 23.71–23.77 protected reports, and …. 23.58 reciprocity of duty …. 23.34, 23.38, 23.40, 23.41, 23.71, 23.73 response to attack …. 23.45, 23.46 social objects …. 23.58 triviality …. 23.97 court’s considerations …. 23.98 repealed legislation …. 23.99

Defective products Australian Consumer Law …. 9.120, 9.128, 9.129 remedies …. 9.128 requirements for actions …. 9.128 safety defect, definition …. 9.128 time limit for actions …. 9.130 contract …. 1.41, 9.121 duty of care …. 9.123 included parties …. 9.123 manufacturers …. 9.123, 9.124–9.126 historical background …. 1.41, 9.121 manufacturers …. 9.8, 9.122 Australian Consumer Law …. 9.128–9.130 duty of care …. 9.123, 9.124–9.126 historical background …. 1.41, 9.121 reasonable precautions …. 9.125, 9.126 scope of duty …. 9.124–9.126 warnings of risk …. 9.126 overview …. 9.119, 9.127 pure economic loss …. 9.120 suppliers or retailers …. 9.123, 9.129 Trade Practices Act …. 9.127

Defective structures duty of care …. 10.79, 10.107 Bryan v Maloney …. 10.108, 10.109 coherency of the law …. 10.115

control and vulnerability …. 10.110–10.114 indeterminate liability …. 10.118 pursuit of business interests …. 10.117 relationship between parties …. 10.116, 10.117 limitation of actions …. 14.11 building legislation …. 14.11, 14.25 latent defects …. 14.22–14.24 statutory liability …. 10.119

Defence forces false imprisonment …. 3.72 vicarious liability …. 20.19

Defences abuse of process …. 18.50 animals …. 26.33 cattle trespass …. 26.27 dogs …. 26.19–26.23 scienter action …. 26.12–26.15 breach of statutory duty …. 18.37–18.40 consent see Consent contributory negligence see Contributory negligence defamation see Defamation defences illegality see Illegality intellectual disability …. 1.27 justification see Justification defence medical professionals …. 13.88 advice and warnings …. 13.90–13.92

Bolam principle …. 11.73, 11.76, 13.90 civil liability legislation …. 13.88, 13.89, 13.91, 13.92 peer professional practice …. 13.88, 13.89 Western Australia …. 11.76, 13.89 negligence …. 13.1, 25.101 civil liability legislation …. 13.1 exclusion of liability clauses …. 13.1, 13.104, 13.105 good Samaritans …. 13.99, 13.100 illegality …. 13.71–13.79 immunity from liability …. 13.80–13.103 inherent risk …. 13.95, 13.96 joint illegal enterprise …. 13.72–13.75, 13.79, 25.101 medical professionals …. 13.88–13.92 obvious risk …. 13.93, 13.94 plaintiff’s illegal activity …. 13.76–13.79 professional practice standards …. 13.81–13.87, 13.91 public safety entities …. 13.101 rescue cases …. 13.97–13.101 volunteers …. 13.102, 13.103 passing off …. 24.28, 24.29 private nuisance …. 25.55, 25.64, 25.101 activities benefiting society …. 25.66 acts of another …. 25.62 consent …. 25.61 contributory negligence …. 25.59, 25.101 easements …. 25.60

jus tertii, and …. 25.65 necessity …. 25.63 statutory authorisation …. 25.55–25.58, 25.101 professional practice standards …. 13.81, 13.83 advice or warnings …. 13.86, 13.91 civil liability legislation …. 13.82–13.87, 13.91 harm, definition …. 13.86 obvious risks …. 13.87 peer professional opinion …. 13.85 professional, definition …. 13.84 public interest defence …. 7.25 public nuisance …. 25.91, 25.101 rescuers …. 13.97 good Samaritans …. 13.99, 13.100 public safety entities …. 13.101 voluntary assumption of risk …. 13.98 trespass see Trespass defences voluntary assumption of risk see Volenti non fit injuria

Definitions assault …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32 Australian court …. 23.30 claim …. 16.45 concurrent wrongdoer …. 21.35, 21.36, 21.37, 21.38 conspiracy …. 24.60 dangerous recreational activity …. 13.67 disability …. 14.31, 14.39, 14.41

excluded corporations …. 22.84 fault …. 6.60 function …. 10.133 good Samaritan …. 13.99 gratuitous attendant care services …. 15.106 gratuitous domestic care …. 15.106 harm …. 12.6, 13.86 health professional …. 13.89 intoxicated …. 13.33 negligence …. 1.6 obvious risk …. 11.63, 13.53 parliamentary body …. 23.22 person in distress …. 11.29 personal injury …. 16.49 proceedings of public concern …. 23.66 professional …. 13.84 public document …. 23.69 public officer …. 18.60 spouse …. 16.17 structured settlement …. 15.37 subordinate distributor …. 23.95 trade or commerce …. 19.99, 19.101 whole person impairment …. 15.114 wrong …. 6.61, 13.6

Dependants see Wrongful death Detention

immigration detention …. 9.84

Deterrence and punishment criminal law …. 1.34, 1.35 evolution of torts law …. 1.31 exemplary damages …. 1.36, 15.19 role in torts …. 1.35, 1.36, 1.37

Detinue advantages …. 5.57 bailment …. 5.61 continuing cause of action …. 5.58 conversion, distinction …. 5.57 damages …. 5.57, 5.73, 5.91 aggravated damages …. 5.76 damaged or destroyed goods …. 5.75 date of assessment …. 5.91 exemplary damages …. 5.76 foreseeable consequential loss …. 5.94 interest in goods …. 5.74 limitation of actions …. 5.102 loss of profits …. 5.94 loss of use and enjoyment …. 5.95 return of goods …. 5.84, 5.100, 5.101 value of goods …. 5.92, 5.93 defences …. 6.46, 6.64 illegal acts …. 6.67 loss of possession …. 6.46

demand and refusal …. 5.62 absence of demand …. 5.65 conditional demand …. 5.64 inability to comply with demand …. 5.68 inaction …. 5.67 loss of goods …. 5.68 specific demand …. 5.63 unqualified and unreasonable refusal …. 5.66 detention of goods …. 5.58, 5.60 demand and refusal …. 5.62–5.68 intention to retain …. 5.61 wrongful detention …. 5.56, 5.60 elements …. 5.58 fault …. 5.58, 5.69 injunctions …. 5.99–5.101 intention …. 5.61, 5.65, 5.69 limitation of actions …. 5.102, 14.12 commencement of period …. 5.103 more than one wrongful act …. 5.104 mistake …. 6.64 overview …. 5.1, 5.56, 5.91 possession of goods …. 5.5, 5.59 remedies …. 5.71 damages …. 5.73–5.76, 5.84, 5.91–5.95, 5.100, 5.101, 5.102 injunctions …. 5.99–5.101 return of goods …. 5.84, 5.100, 5.101

self-help …. 5.72 title to sue …. 5.58, 5.59 finders …. 5.59 possession of goods …. 5.59 trespass to chattels, distinction …. 5.57 United Kingdom …. 5.56

Directors deceit …. 19.76 loss of services …. 17.4 misleading or deceptive conduct …. 19.97

Disabled persons see also Wrongful birth; Wrongful life limitation of actions …. 14.38, 14.41 standard of care …. 11.11, 11.12

Distress damage feasant …. 6.47 Dogs see Animals Domestic violence protection orders …. 3.35, 3.86

Drivers see Motor vehicle drivers Duress …. 6.12 Dust-related conditions limitation of actions …. 14.17, 16.49 mesothelioma …. 12.46, 12.47, 12.49 survival of causes of action …. 16.55

Duty of care see also Breach of duty; Standard of care animals …. 26.29 bailees …. 9.123

categories of relationships …. 9.3 incremental approach …. 10.18, 10.26 Commonwealth …. 9.84 immigration detainees …. 9.84 defective products …. 9.123 included parties …. 9.123 manufacturers …. 9.123, 9.124–9.126 defective structures …. 10.79, 10.107 Bryan v Maloney …. 10.108, 10.109 coherency of the law …. 10.115 control and vulnerability …. 10.110–10.114 indeterminate liability …. 10.118 pursuit of business interests …. 10.117 relationship between parties …. 10.116, 10.117 Donoghue v Stevenson …. 8.10, 8.11 facts of case …. 8.11 employers see Employer’s duty to employees established duties …. 8.9, 9.3, 9.8, 10.1 public authorities …. 10.121 pure psychiatric injury …. 10.72–10.76 scope of duty …. 9.5 existence of duty …. 8.4, 8.9, 10.2, 10.3, 10.7 general test …. 8.10, 8.11 High Court’s approach …. 8.13 identification of loss …. 10.2 neighbour principle …. 8.11, 8.12, 9.4, 10.5, 10.8

novel categories …. 10.5–10.36, 12.86 reasonable foreseeability …. 10.8 historical summary …. 8.13, 10.5, 10.6, 10.7 Anns approach …. 10.9–10.11, 10.33 Caparo approach …. 10.15 general test …. 8.10, 8.11 incremental approach …. 10.16–10.21, 10.26 neighbour principle …. 8.11, 8.12, 9.4, 10.5, 10.8 policy considerations …. 10.9, 10.12, 10.33 proximity approach …. 10.11, 10.12–10.14, 10.16 reasonable foreseeability …. 10.8, 10.11, 10.12, 10.15 salient features approach …. 10.22–10.24 unifying principle …. 10.7, 10.12, 10.16, 10.17, 10.21 hospitals …. 9.101 incremental approach …. 10.16, 10.21 categories of duty …. 10.18, 10.26 criticisms …. 10.20 features of approach …. 10.17, 10.18 rejection of unifying principle …. 10.16, 10.17 support for approach …. 10.19 indeterminate liability …. 10.29 negligent misrepresentation …. 19.42 professional services …. 10.106 pure psychiatric harm …. 10.43, 10.67–10.70 relational loss …. 10.84, 10.86, 10.87 landlords …. 9.21, 9.23, 20.76, 20.77

occupation, meaning …. 9.22 legal policy and public policy …. 10.34–10.37 legal principle and legal policy …. 10.32, 10.33, 10.35, 10.37 manufacturers …. 9.8, 9.123, 9.124 reasonable precautions …. 9.125, 9.126 scope of duty …. 9.124–9.126 warnings of risk …. 9.126 meaning …. 9.2 medical professionals …. 8.9, 9.95, 9.96 advice and warnings …. 9.97, 13.90–13.92 scope of duty …. 9.97 sexually transmitted disease …. 9.100 Sullivan v Moody …. 10.29 third parties …. 9.98–9.100, 10.29 unborn child …. 9.98 wrongful birth …. 9.99 motor vehicle drivers …. 9.8, 9.57, 9.60 child drivers …. 9.57 off-road and rally events …. 9.61 pedestrians …. 9.63 police officers …. 9.57 scope of duty …. 9.62–9.64 taxi drivers …. 9.64 third party insurance …. 9.58, 9.65 unborn child …. 9.59 negligent misrepresentation …. 10.79, 19.1, 19.9, 19.18, 19.42

assumption of responsibility …. 19.19, 19.21, 19.23–19.26, 19.46, 19.48 characteristics of relationship …. 19.20 continuous duty …. 19.52 current approach …. 19.22 disclaimers …. 19.21, 19.46–19.50 historical background …. 19.10–19.17 indeterminate liability …. 19.42 policy considerations …. 19.10, 19.17, 19.42 reasonable foreseeability …. 19.19 reasonable reliance …. 19.19, 19.21, 19.27–19.45, 19.47, 19.49 recognition of duty …. 19.11, 19.18 scope of duty …. 19.51, 19.52 special relationship …. 19.12, 19.13, 19.14, 19.17, 19.20, 19.21, 19.22 third parties …. 19.42–19.45 neighbour principle …. 8.11, 8.12, 9.4, 10.5, 10.8 non-delegable duty see Non-delegable duty novel categories …. 8.13, 9.3, 10.2, 10.4, 10.8 adaptability of law …. 10.5, 10.6 Anns approach …. 10.9–10.11, 10.33 Caparo approach …. 10.15 certainty in the law …. 10.5, 10.6 courts’ law-making role …. 10.6 current approach …. 10.25–10.29, 19.22 difficulties in identifying …. 10.7 historical summary …. 10.5–10.24

identification of loss …. 10.2 incremental approach …. 10.16–10.21, 10.26 legal policy and public policy …. 10.34–10.37 legal principle and legal policy …. 10.32, 10.33, 10.35, 10.37 negligent misrepresentation …. 19.9, 19.22 normative considerations …. 12.86 parliaments’ law-making role …. 10.6 policy considerations …. 10.9, 10.12, 10.32–10.37 proximity approach …. 10.11, 10.12–10.14, 10.16 public authorities …. 10.3, 10.4, 10.6, 10.22, 10.122–10.151 pure economic loss …. 10.2, 10.4, 10.22, 10.77–10.119 pure psychiatric injury …. 10.2, 10.4, 10.30, 10.31, 10.40–10.76 reasonable foreseeability …. 10.8, 10.11, 10.12, 10.15, 10.30, 10.31 salient features approach …. 10.22–10.24, 10.27 scope of duty …. 10.38, 10.39 Sullivan v Moody …. 10.26–10.29 technological developments …. 10.5 types of damage …. 10.2 unifying principle …. 10.7, 10.12, 10.16, 10.17, 10.21 occupiers of premises see Occupiers of premises overview …. 8.9, 8.10, 9.1, 9.2, 10.1, 11.1, 25.93 parents …. 9.68, 9.77 control of child …. 9.80–9.82 parental immunity …. 9.77, 9.78 ‘particular situation’ …. 9.78, 9.79 quality of supervision …. 9.77, 9.78

scope of duty …. 9.79 third parties …. 9.80–9.82 pedestrians …. 9.63 persons in control of others …. 9.8, 9.67, 9.68 parents …. 9.77–9.82 prison authorities …. 9.83–9.90 school authorities …. 9.69–9.76 police officers …. 10.144 road users …. 9.57 policy considerations …. 10.9, 10.12, 10.33, 10.36 example …. 10.37 legal policy and public policy, distinction …. 10.34 legal principle and legal policy …. 10.32, 10.33, 10.35, 10.37 negligent misrepresentation …. 19.10, 19.17, 19.42 prison authorities …. 9.68, 9.83 at risk prisoners …. 9.88 employees …. 9.89 escaped prisoners …. 9.89 immigration detention …. 9.84 paroled prisoners …. 9.90 reasonable precautions …. 9.87 scope of duty …. 9.85–9.88 third parties …. 9.89, 9.90 professionals …. 9.8, 9.91, 10.97, 10.98 content of duty …. 9.93 examples of relationships …. 9.92

pure economic loss …. 9.94, 10.79, 10.97–10.106 third parties …. 9.94, 10.79, 10.97–10.106 proximity …. 10.11, 10.12, 10.16 policy considerations …. 10.12 rejection of role …. 10.14 stages of approach …. 10.12, 10.13 public authorities …. 10.3, 10.4, 10.10, 10.120, 10.122 civil liability legislation …. 10.131–10.134, 10.138 coherency of the law …. 10.143–10.145 control and vulnerability …. 10.139–10.142 difficulties of novel duties …. 10.123 duty to act …. 10.127, 10.129 established categories …. 10.121 exercise of power …. 10.122, 10.126, 10.127, 10.128 failure to exercise power …. 10.127, 10.130 policy and operational decisions …. 10.135–10.138 pure economic loss …. 10.124 reasonable foreseeability …. 10.131 relevant factors …. 10.131–10.145 road authorities …. 10.6, 10.146–10.151 salient features approach …. 10.22 statutory exemptions …. 10.125 statutory power …. 10.126–10.130 types of damage …. 10.124 public officials …. 9.123 pure economic loss …. 10.2, 10.4, 10.77, 10.78, 19.1

categories of claims …. 10.79 defective structures …. 10.79, 10.107–10.118 exceptions to exclusion …. 10.79 exclusionary rule …. 10.77 negligent misrepresentation …. 10.79, 10.98, 19.10, 19.11, 19.18 professional services …. 9.94, 10.79, 10.97–10.106 relational loss …. 10.79, 10.81–10.96 salient features approach …. 10.22 scope of duty …. 10.80 pure psychiatric injury …. 10.2, 10.4, 10.40, 10.42, 10.72 civil liability legislation …. 10.45, 10.46, 10.59, 10.69, 10.70 coherency of law …. 10.71 current approach …. 10.42, 10.43 direct perception …. 10.48, 10.52–10.56 employers …. 9.35, 10.72–10.76 established duties …. 10.72–10.76 indeterminate liability …. 10.43, 10.67–10.70 normal fortitude …. 10.48, 10.49–10.51 reasonable foreseeability …. 10.30, 10.31, 10.41, 10.42, 10.43, 10.47–10.58, 10.60, 10.64, 10.76 recognised psychiatric injury …. 10.44–10.46 relationship between parties …. 10.43, 10.56, 10.61–10.63, 10.68 relevant factors …. 10.43, 10.60–10.71 sudden shock …. 10.48, 10.57, 10.58 vulnerability and control …. 10.43, 10.64–10.66 questions of law …. 8.22

reasonable foreseeability …. 8.7, 8.8, 8.12, 10.8, 10.30, 10.31 Anns approach …. 10.11 Caparo approach …. 10.15 considerations …. 10.31 proximity approach …. 10.12 public authorities …. 10.131 pure economic loss …. 10.90 pure psychiatric injury …. 10.30, 10.31, 10.41, 10.42, 10.43, 10.47–10.58, 10.60, 10.64, 10.76 relational loss …. 10.79, 10.81, 10.86 ascertainable class …. 10.87–10.90 Caltex decision …. 10.82, 10.83, 10.85 indeterminate liability …. 10.84, 10.86, 10.87 insurance …. 10.93 interference with pursuit of business …. 10.94–10.96 interruption of gas supply …. 10.90, 10.93 reasonably foreseeable …. 10.90 vertically integrated operations …. 10.88, 10.89 vulnerability and control …. 10.91–10.93 road authorities …. 10.6, 10.146, 25.84 actual knowledge of risk …. 10.149, 10.150, 10.151 civil liability legislation …. 10.148, 10.149, 10.150, 10.151 ‘highway rule’ …. 10.6, 10.146, 10.147, 10.148 public nuisance …. 25.84 reinstatement of rule …. 10.148 salient features approach …. 10.22, 10.23, 10.27

control …. 10.24 vulnerability …. 10.24 school authorities …. 8.9, 9.68, 9.69, 9.70 non-delegable duty …. 9.75, 20.64, 20.67 outside school hours …. 9.72 school bus drivers …. 9.73 scope of duty …. 9.71–9.74 standard of education …. 9.74 third parties …. 9.76 scope of duty …. 9.4, 9.7 alleged breach, and …. 9.6, 9.7 established relationships …. 9.5 novel categories …. 10.38, 10.39 statutory context …. 10.39 solicitors …. 9.103, 10.99 acting for both parties …. 9.105 advising clients …. 9.108, 9.109 commercial efficacy …. 9.109 legal profession legislation …. 9.118 opposing parties …. 9.104 scope of duty …. 9.107–9.109, 10.99 solicitors conduct rules …. 9.116, 9.117 terms of retainer …. 9.107, 9.108 third parties …. 9.106, 10.99–10.106 warning of risks …. 9.108 Sullivan v Moody …. 10.29

facts of case …. 10.29 Sullivan v Moody approach …. 10.26, 10.29 factors requiring evaluation …. 10.28 features of approach …. 10.26 indeterminate liability …. 10.29 judicial evaluation …. 10.28 salient features …. 10.27 suppliers or retailers …. 9.123 wrongful life …. 12.12

E Easements private nuisance …. 25.60 prescriptive rights …. 25.60 trespass to land …. 4.12

Economic loss see also Loss of services; Pure economic loss defamation …. 23.130 limitation of actions …. 14.10 commencement of period …. 14.24, 14.26 continuing trespass to land …. 14.13 conversion …. 14.12 latent building defects …. 14.24

‘Egg-shell skull’ rule assessment of damages …. 15.30 overview …. 12.66, 15.30 same damage requirement …. 12.67, 12.68

wrongful death …. 16.14

Emergencies see also Medical emergencies; Rescuers anticipation of negligence …. 11.82 contributory negligence …. 13.14 good Samaritans …. 11.29, 13.99, 13.100 definition …. 13.99 standard of care …. 11.28 civil liability legislation …. 11.29 contributory negligence …. 13.14

Employees see also Vicarious liability of employer; Workers’ compensation contributory negligence …. 13.15 knowledge of dangerous conduct …. 13.16 loss of employee services …. 17.9 misleading or deceptive conduct …. 19.97

Employers damages …. 17.1 assessment of damages …. 17.8 contributory negligence …. 17.9 loss of employee services …. 17.7–17.9 loss of employee services …. 17.2, 17.3, 17.6 availability of action …. 17.2 contributory negligence …. 17.9 damages …. 17.7–17.9 death of employee …. 17.5 defence force personnel …. 17.4

directors …. 17.4 enticement and harbouring …. 17.2 historical background …. 17.2, 17.3 per quod servitium amisit …. 17.2–17.9

Employer’s duty to employees see also Breach of statutory duty; Vicarious liability of employer anticipation of carelessness …. 9.45 anticipation of negligence …. 11.81 competent staff …. 9.33, 9.36 contractual duties …. 9.26 safe workplace …. 9.26, 9.29 contributory negligence …. 13.15, 13.16 employee actions …. 1.46, 9.29, 9.30 employment contract …. 9.26 breach of contract …. 9.29 foreseeable risks …. 9.34 historical development …. 9.27, 9.28 employer defences …. 9.28, 18.3 industrial revolution …. 9.27 legislation …. 9.28, 9.48 occupational health and safety …. 9.28, 9.48, 18.3 independent contractors …. 9.31 non-delegable duty …. 9.47, 20.64, 20.65 collateral negligence of contractors …. 20.66 not-for-profit organisations …. 9.34 occupational health and safety …. 9.49

breach of statutory duty …. 18.3 historical development …. 9.28, 9.48, 18.3 national uniform legislation …. 9.49–9.52 specific employer duties …. 9.50 occupier, employer as …. 9.40 overview …. 9.8, 9.26, 9.27, 20.65 plant and equipment …. 9.33, 9.37 defects in equipment …. 9.42 employer as occupier …. 9.40 maintenance and repair …. 9.41, 9.42 premises of others …. 9.38, 9.39 prison authorities …. 9.89 psychiatric injury …. 9.35, 10.72 bullying and harassment …. 10.76 legitimate business interests …. 10.75 reasonable foreseeability …. 10.76 scope of duty …. 9.35, 10.73, 10.74 safe system of work …. 9.33, 9.43 anticipation of carelessness …. 9.45 anticipation of negligence …. 11.81 appropriate equipment …. 9.43 assault …. 9.44 contractual duty …. 9.26, 9.29 harassment or bullying …. 9.44 historical development …. 9.27, 9.28 independent contractors …. 9.31

instructions …. 9.43 premises of others …. 9.46 safe system, meaning …. 9.43 supervision …. 9.43 warnings …. 9.43 scope of duty …. 9.27, 9.32, 9.33 competent staff …. 9.33, 9.36 foreseeable risks …. 9.34 plant and equipment …. 9.33, 9.37–9.42 psychiatric injury …. 9.35, 10.73, 10.74 safe system of work …. 9.33, 9.43–9.67 standard of care …. 11.79 anticipation of negligence …. 11.81 contributory negligence …. 13.15, 13.16 voluntary assumption of risk …. 9.28, 13.49

Encroachment …. 4.70 Enticement domestic service by child …. 17.26 employee services …. 17.2 husband’s action …. 17.13, 17.15 abolition …. 17.16

Equitable remedies account of profits …. 15.6 court’s discretion …. 15.2 declaratory judgments …. 15.3 advantages …. 15.4

disadvantages …. 15.5 jurisdiction …. 15.4 injunctions see Injunctions overview …. 1.19, 15.2 private nuisance …. 25.71

Evolution of torts law actions on the case …. 2.1, 2.5, 2.21 Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22 indirect interference …. 2.2, 2.7 intention …. 2.3, 2.6, 2.10, 2.22 United Kingdom …. 2.6 declaratory theory of law …. 1.58 extent of adherence …. 1.59 deterrence and punishment …. 1.31 High Court’s approach …. 1.58, 1.59, 1.62 judicial activism …. 1.60, 1.61 policy considerations …. 1.59, 1.60, 1.61, 1.62 initial actions …. 1.38, 2.1 insurance, and …. 1.43, 1.51, 1.52, 1.55 courts’ approach …. 1.56, 1.57 indemnity insurance …. 1.52, 1.53 third party insurance …. 1.52, 1.54, 1.57 Ipp Report …. 1.51 judicial activism …. 1.60, 1.61 negligence …. 1.39, 1.40, 1.41, 1.43, 25.94 contractual relationships …. 1.40, 1.41

Donoghue v Stevenson …. 1.42 employment relationship …. 1.43 insurance, and …. 1.43, 1.51, 1.52 neighbour principle …. 1.42 pure economic loss …. 1.43 no-fault compensation …. 1.45 criminal injuries compensation …. 1.48 motor vehicle accidents …. 1.47 workers’ compensation …. 1.46 overview …. 1.1, 1.38 statutory impacts …. 1.44 civil liability legislation …. 1.51 consumer protection …. 1.50 contributory negligence …. 1.49 no-fault compensation …. 1.45–1.48 strict legalism doctrine …. 1.58 extent of adherence …. 1.59 trespass actions …. 1.39, 2.1, 2.5, 2.12, 4.1 Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22 direct interference …. 2.2, 2.7 fault …. 2.4, 2.6, 2.8 highway/non-highway distinction …. 2.3, 2.4, 2.6 intention …. 2.3, 2.5, 2.6, 2.10, 2.22 United Kingdom …. 2.6

Ex turpi causa oritur non actio …. 6.67 Execution of process

defence to trespass …. 6.57, 6.58

Exemplary damages assessment …. 15.20 conspiracy …. 24.74 conversion …. 5.76 deceit …. 19.89 defamation …. 15.23, 23.113 deterrence role …. 1.36, 15.19 detinue …. 5.76 industrial accident cases …. 15.22 intimidation …. 24.86 joint tortfeasors …. 15.20, 21.7 malicious prosecution …. 7.19 misleading or deceptive conduct …. 19.114 motor vehicle accidents …. 15.22 negligence …. 15.21 overview …. 1.17, 1.36, 3.83, 15.19 passing off …. 24.32 personal injuries …. 15.21 punitive function …. 1.36, 15.19 purposes …. 1.36, 15.19, 15.20 restriction of right …. 15.22 survival of causes of action …. 16.56 trespass to chattels …. 5.76 trespass to land …. 4.61, 4.62 trespass to person …. 3.79, 3.83, 3.84

F Factual causation see Causation False imprisonment Aboriginal children …. 3.51 arrest …. 3.64 arbitrary arrest …. 3.64 civil arrest …. 3.69, 3.70 police arrest …. 3.65–3.68 assault, and …. 3.57 assertion of authority …. 3.58 civil arrest …. 3.64, 3.69 onus of proof …. 3.70 statutory modification …. 3.70 defence forces …. 3.72 defences see Trespass defences direct interference …. 3.50, 3.51 elements …. 3.50 escape attempts …. 3.59 evolution of law …. 1.39 fault …. 3.50, 3.60 immigration detention …. 3.74 intention …. 3.60 knowledge of restraint …. 3.48, 3.49 lawful justification …. 3.61, 3.62 defence forces …. 3.72 onus of proof …. 3.61, 3.70

prison authorities …. 3.71, 3.72 power of arrest …. 3.64–3.70 right to release governed by contract …. 3.63 statutory authority to detain …. 3.73, 3.74 limitation of actions …. 3.88 malicious prosecution, distinction …. 7.9, 7.10 mistake …. 6.64 no reasonable means of escape …. 3.54, 3.55 overview …. 3.2, 3.46, 7.9 period of imprisonment …. 3.47 police arrest …. 3.64, 3.65 delay in charging …. 3.65 warrant arrests …. 3.67 warrant without authority …. 3.68 without warrant …. 3.65, 3.66 police officers …. 3.51 assertion of authority …. 3.58 prison authorities …. 3.71, 6.64 defence forces …. 3.72 remedies …. 3.75, 3.87 damages …. 3.75–3.84 injunctions …. 3.85 limitation of actions …. 3.88 protection orders …. 3.86 restraint in all directions …. 3.50, 3.52 assertion of authority …. 3.58

comprehensive limitation …. 3.53 escape attempts …. 3.59 mere obstructions …. 3.53 no reasonable means of escape …. 3.54, 3.55 physical restraint …. 3.56, 3.57 threat of imminent harm …. 3.57 statutory authority to detain …. 3.73 immigration detention …. 3.74 submission of plaintiff …. 3.56, 3.57 threat of imminent harm …. 3.57 vicarious liability …. 20.88 voluntary entry …. 3.62, 3.63

Fault see also Intention assault …. 3.31 battery …. 3.3, 3.16–3.18, 6.60 contributory negligence …. 6.60 conversion …. 5.29, 5.55 definition …. 6.60 detinue …. 5.58, 5.69 false imprisonment …. 3.50, 3.60 negligence …. 2.18, 20.1 overview …. 1.6, 20.1 private nuisance …. 24.38, 24.39 trespass …. 2.4, 2.6, 2.8, 2.12, 2.15, 2.18, 6.1, 20.1 trespass to chattels …. 5.6, 5.24 awareness of infringement …. 5.25

mistaken belief …. 5.26 trespass to land …. 4.3, 4.40 vicarious liability, and …. 20.2

Fraud consent …. 6.10 medical treatment …. 6.10, 6.11, 6.17 limitation of actions …. 14.46 fraud, meaning …. 14.51 fraudulent misrepresentation …. 14.46 jurisdictional differences …. 14.47–14.50 onus of proof …. 14.52 suspension of period …. 14.46–14.52 vicarious liability of employer …. 20.37

Fraudulent misrepresentation see also Deceit conversion …. 19.66 innominate actions …. 19.66 limitation of actions …. 14.46 mode of committing a tort …. 19.66

G Good Samaritans definition …. 13.99 emergencies …. 11.29, 13.99 immunity from liability …. 13.99, 13.100

H

Harbouring domestic service by child …. 17.26 employee services …. 17.2 husband’s actions …. 17.14, 17.15 abolition …. 17.16

Harassment employer’s duty of care …. 9.44, 10.76

Highway authorities see Road authorities History of torts law see Evolution of torts law Hospital expenses cost of treatment …. 15.65 future expenses …. 15.59, 15.63, 15.141 evidence of future needs …. 15.67 indemnity principle …. 15.84, 15.141 institutional or home care …. 15.66 overview …. 15.61 past expenses …. 15.56, 15.62 reasonable and necessary …. 15.64–15.67 cost of treatment …. 15.65 institutional or home care …. 15.66

Hospitals see also Medical professionals duty of care …. 9.101 non-delegable duty …. 9.102, 20.64, 20.68, 20.69 outpatients …. 20.68 specialists treating private patients …. 20.69 vicarious liability …. 20.18

I Illegality breach of statutory duty …. 18.39 civil liability legislation …. 13.77, 13.79 indictable offences …. 13.78 reduction in damages …. 13.78 defamation …. 22.44 joint illegal enterprise …. 13.1, 13.72, 13.79, 25.101 connection with conduct …. 13.72, 13.74 minor infringements …. 13.73 proximity …. 13.74 standard of care …. 13.73 sufficiently serious …. 13.73 withdrawal from illegal purpose …. 13.75 negligence defence …. 13.1, 13.71 joint illegal enterprise …. 13.72–13.75, 13.79, 25.101 plaintiff’s illegal activity …. 13.76–13.79 non-recognition of loss …. 12.9 nuisance …. 25.101 plaintiff’s illegal activity …. 13.76, 13.79 civil liability legislation …. 13.77–13.79 indictable offences …. 13.78 reduction in damages …. 13.78

Immigration detainees Commonwealth’s duty of care …. 9.84

Indemnities

overview …. 20.86 vicarious liability …. 20.85, 20.86, 21.27 Lister v Romford Ice …. 20.86, 20.87, 21.25, 21.27 statutory modification …. 20.88, 21.26

Independent contractors agent or contractor …. 20.56 employee or contractor …. 20.8, 20.9, 20.17 control test …. 20.11, 20.13, 20.24 hospital staff …. 20.18 multi-facet test …. 20.14–20.17 organisation test …. 20.12, 20.13 relevant factors …. 20.16, 20.17 terms describing relationship …. 20.9 tests to determine …. 20.10–20.17 employer’s duty of care …. 9.31

Inevitable accident non-highway trespass …. 6.3 overview …. 6.2, 6.4 United Kingdom …. 6.2

Infringement of rights absolute rights …. 1.13, 1.14 legally recognisable rights …. 1.11 overview …. 1.10, 1.11 pure economic loss …. 1.10 qualified rights …. 1.13, 1.14 proof of harm …. 1.15

recognition of new rights …. 1.12 types of rights …. 1.13

Injunctions assault …. 3.85 conversion …. 5.98 defamation …. 1.19, 15.7, 23.1, 23.105 interlocutory injunctions …. 23.106–23.110 permanent injunctions …. 23.111 detinue …. 5.99–5.101 discretionary nature …. 15.8 injurious falsehood …. 24.99 interference with contractual relations …. 24.59 interlocutory injunctions …. 15.11 defamation …. 23.106–23.110 injurious falsehood …. 24.99 private nuisance …. 25.70 mandatory injunctions …. 15.7, 15.10 private nuisance …. 25.70 nuisance …. 15.7 overview …. 1.19, 5.96, 15.7 passing off …. 24.33 private nuisance …. 24.28, 25.69, 25.70, 25.75, 25.102 prohibitory injunctions …. 15.7, 15.9 quia timet injunctions …. 15.9 passing off …. 24.33 private nuisance …. 25.70, 25.71

public nuisance …. 25.102 trespass to chattels …. 5.97, 15.7 trespass to land …. 1.19, 4.65, 4.66, 15.7 continuing trespass …. 4.67 past and complete trespass …. 4.68 trespass to person …. 3.85, 15.11

Injurious falsehood see also Defamation damage requirement …. 22.97, 24.89, 24.96 reasonable foreseeability …. 24.97 special damage …. 24.97 damages …. 24.98 defamation, comparison …. 24.101 development of tort …. 24.88 elements …. 22.97, 24.89 false statements …. 22.97, 22.98, 24.89, 24.90 injunctions …. 24.99 malice …. 22.97, 24.89, 24.92 establishing …. 24.93 evidence of ill-will …. 24.94 exaggerated statements …. 24.95 misleading or deceptive conduct …. 22.95, 24.100 internet …. 22.96 overview …. 22.4, 24.87, 24.101 passing off, distinction …. 24.6 publication …. 22.97, 24.89, 24.91 remedies …. 24.98

injunctions …. 24.99

Innocent misrepresentation …. 19.2 Innominate actions fraudulent misrepresentation …. 19.66 High Court decisions …. 2.26, 2.27 malicious prosecution see Malicious prosecution overview …. 2.21, 2.25, 2.28 privacy see Privacy psychiatric injury see Intentional infliction of psychiatric injury reversionary owners …. 5.70

Insanity defence to trespass …. 6.65

Insurance courts’ approach …. 1.56, 1.57 evolution of torts law …. 1.51, 1.52, 1.55 courts’ approach …. 1.56, 1.57 indemnity insurance …. 1.52, 1.53 negligence, and …. 1.43, 1.51, 1.52 pure economic loss, and …. 1.57 third party insurance …. 1.52, 1.54, 1.57, 9.58, 9.65

Intellectually disabled persons capacity to sue and be sued …. 1.26, 1.27 defences …. 1.27

Intention actions on the case …. 2.3, 2.6, 2.10, 2.21, 2.22, 2.24, 2.28, 7.10 assault …. 3.19, 3.31, 3.32

battery …. 3.16, 3.17, 3.18 conspiracy …. 24.61, 24.64, 24.66 agreement of purpose …. 24.67 breach of contract …. 24.69 lawful act …. 24.64, 24.70 plaintiff as target …. 24.65 purpose of agreement …. 24.67, 24.70 statutory breach …. 24.69 unlawful act …. 24.64, 24.68, 24.69 conversion …. 5.40, 5.48, 5.55 criminal law …. 1.33 detinue …. 5.61, 5.65, 5.69 false imprisonment …. 3.60 interference with contractual relations …. 24.40, 24.46, 24.47 promotion of own interests …. 24.49 reckless or indifferent conduct …. 24.48 intimidation …. 24.76, 24.81 involuntariness, distinction …. 2.17 minors …. 1.23 negligence …. 2.22, 2.25, 3.18 overview …. 1.6, 1.33 trespass …. 2.3, 2.5, 2.6, 2.10, 2.16, 2.22, 2.24, 2.28, 7.10 involuntariness …. 2.17 trespass to chattels …. 5.24 trespass to land …. 4.40

Intentional damage to a person see also Intentional infliction of

psychiatric injury; Malicious prosecution; Privacy overview …. 7.1 possible actions …. 7.1

Intentional infliction of psychiatric injury actual damage …. 7.5 actual intention …. 7.5 child sexual abuse …. 14.43 civil liability legislation …. 7.8 foreseeability of harm …. 7.4, 7.6 mere fright …. 7.4 overview …. 2.25, 7.2, 7.7 reckless indifference …. 7.5 requirements …. 7.4, 7.5 scope of principle …. 7.3 Wilkinson v Downtown …. 7.2, 7.6, 7.7

Interference with business interests conspiracy see Conspiracy emergence of single tort …. 24.2, 24.5 High Court’s position …. 24.3 lower courts …. 24.4, 24.5 United Kingdom …. 24.2 injurious falsehood see Injurious falsehood intimidation see Intimidation overview …. 24.1 passing off see Passing off

Interference with contractual relations

breach of contract …. 24.54, 24.55 damage requirement …. 24.40, 24.55 damages …. 24.58 defences …. 24.56 justification …. 24.56, 24.57 development of tort …. 24.39 elements …. 24.40 injunctions …. 24.59 intention …. 24.40, 24.46, 24.47 promotion of own interests …. 24.49 reckless or indifferent conduct …. 24.48 justification defence …. 24.56, 24.57 criteria …. 24.57 knowledge of contract …. 24.40, 24.43 common sense …. 24.44 corporations …. 24.45 terms of contract …. 24.44 overview …. 24.1, 24.38 performance of contract …. 24.40, 24.50, 24.54 advice leading to breach …. 24.52 direct interference …. 24.51, 24.52 indirect interference …. 24.53 pre-contractual negotiations …. 24.42, 24.54 remedies …. 24.58 injunctions …. 24.59 valid existing contract …. 24.40, 24.41

voidable contracts …. 24.41 wrongful or unlawful interference …. 24.40, 24.54

Internet defamation …. 22.6, 22.19, 22.23, 22.78 misleading or deceptive conduct …. 22.96

Internet service providers defamation …. 22.91, 22.92 innocent dissemination …. 23.94

Intimidation aggravated damages …. 24.86 compliance with threat …. 24.76, 24.80 damage requirement …. 24.82 damages …. 24.84–24.86 elements …. 24.75, 24.76 exemplary damages …. 24.86 industrial relations legislation, and …. 24.75 intention …. 24.76, 24.81 justification defence …. 24.83 overview …. 24.1, 24.75 threat of unlawful act …. 24.76, 24.77 improper exercise of power …. 24.79 third parties …. 24.78 unlawful act …. 24.79

Intoxicated persons contributory negligence …. 13.12, 13.13, 13.31, 13.32 apportionment of liability …. 13.40, 13.41

civil liability legislation …. 13.12, 13.33–13.41, 13.44, 13.45 defendant intoxicated …. 13.38, 13.39 impairment of capacity …. 13.36 intoxicated, definition …. 13.33 motor vehicle accidents …. 13.12, 13.42–13.45 plaintiff intoxicated …. 13.34–13.37 rebuttal of presumption …. 13.35, 13.39 statutory presumptions …. 13.12, 13.31–13.45 definitions …. 13.33 occupier’s duty …. 1.37, 9.15, 9.16, 9.25, 10.37 standard of care …. 11.26 civil liability legislation …. 11.27 contributory negligence …. 13.12, 13.13 intoxicated plaintiff …. 11.33 volenti non fit injuria …. 13.61 defendant intoxicated …. 13.63 onus of proof …. 13.62 plaintiff intoxicated …. 13.62

Invasion of privacy see Privacy Involuntariness intention, distinction …. 2.17 trespass …. 2.17

Ipp Report breach of duty …. 8.15, 8.16, 11.38 causation …. 8.20, 12.3 onus of proof …. 12.55

scope of liability …. 12.58 contributory negligence …. 13.9 damage requirement …. 12.3 scope of liability …. 12.58 limitation of actions …. 14.9, 14.29 child abuse …. 14.44 children …. 14.32, 14.35 non-delegable duty …. 20.84 overview …. 1.51, 15.53 personal injury damages …. 15.112 public authorities …. 18.33 solidary liability …. 21.32

J Joint illegal enterprise connection with conduct …. 13.72, 13.74 establishing …. 13.72 minor infringements …. 13.73 negligence defence …. 13.1, 13.72–13.75, 25.101 nuisance …. 25.101 overview …. 13.72, 13.79 proximity …. 13.74 standard of care …. 13.73 sufficiently serious …. 13.73 withdrawal from illegal purpose …. 13.75

Joint tenants

conversion …. 5.36 trespass to land …. 4.10 possession of land …. 4.11

Joint tortfeasors see Concurrent tortfeasors Judicial activism …. 1.60, 1.61 Judicial acts defence to trespass …. 6.55, 6.56

Jurisdiction declaratory judgments …. 15.4 defamation …. 22.19 appropriate forum …. 22.22, 22.23, 22.24 choice of law …. 22.20, 22.21 forum shopping …. 22.6, 22.19 international publications …. 22.22, 22.24 internet …. 22.6, 22.19, 22.23 pre-national legislation …. 22.6, 22.23 residence …. 22.24

Jury trials defamation …. 22.62, 22.63 appeals …. 23.138-23.140 damages …. 23.138, 23.140 negligence …. 11.88-11.96 appeals …. 11.93-11.94 directions to jury …. 11.91 limit on availability …. 8.26, 11.92 overview …. 11.88

personal injury damages …. 15.152 questions of fact …. 8.24, 11.88, 22.62 questions of law …. 8.24, 11.88 withholding case from jury …. 11.90

Jus tertii …. 4.5, 6.45, 25.65 Justification defence conspiracy …. 24.72 defamation …. 23.4, 23.7 accuracy of imputation …. 23.6, 23.8 aggravated damages …. 23.122–23.123 common law …. 23.5, 23.6, 23.8 conviction of an offence …. 23.9 multiple imputations …. 23.10 substantially true …. 23.8 interference with contractual relations …. 24.56, 24.57 intimidation …. 24.83

L Land see also Trespass to land indirect interference …. 1.14

Landlord and tenant contractual relationship …. 9.21 duty of care …. 9.21, 9.23, 20.76, 20.77 occupation, meaning …. 9.22 non-delegable duty …. 20.76 inherent risk of damage …. 20.76, 20.77

private nuisance …. 25.12 control of activities …. 25.13 failure to repair …. 25.14 title to sue …. 25.6, 25.7 public nuisance …. 25.83 trespass to land …. 4.6 trespass by relation …. 4.7, 4.8

Legal formalism …. 1.58, 1.59 Legal profession see also Barristers; Solicitors regulation of conduct …. 9.118

Lessors see Landlord and tenant Libel see Defamation Limitation of actions actions on the case …. 14.15 applicable time period …. 14.6 child abuse …. 14.18, 14.28, 14.43, 14.45 Ipp report …. 14.44 children …. 14.32 Ipp report …. 14.32, 14.35 notice requirements …. 14.36, 14.37 parent or guardian …. 14.33, 14.36, 14.37 Western Australia …. 14.34 commencement of period …. 14.6, 14.14 conversion …. 5.103, 14.12 date of action accruing …. 14.14, 14.15, 14.17, 14.18, 14.21–14.25, 14.26

date of discoverability …. 14.14, 14.19, 14.20 economic loss …. 14.24, 14.26 personal injuries …. 14.16–14.20 property damage …. 14.21–14.25 common law …. 14.1 contribution between tortfeasors …. 14.64–14.67 conversion …. 5.102, 14.12 commencement of period …. 5.103, 14.12 more than one wrongful act …. 5.104 deceit …. 19.91 defamation …. 22.94 defective buildings …. 14.11 building legislation …. 14.11, 14.25 latent defects …. 14.22–14.24 detinue …. 5.102, 14.12 commencement of period …. 5.103 more than one wrongful act …. 5.104 economic loss …. 14.10 commencement of period …. 14.24, 14.26 continuing trespass to land …. 14.13 conversion …. 14.12 latent building defects …. 14.24 effect on proceedings …. 14.3, 14.7 extension of period …. 14.4, 14.6, 14.27, 14.53 just and reasonable …. 14.56 knowledge of plaintiff …. 14.62

material fact of decisive character …. 14.58–14.60 personal injuries …. 14.54–14.62 prejudice to fair trial …. 14.61 property damage …. 14.63 wrongful death …. 16.50 fraud or improper conduct …. 14.46 fraud, meaning …. 14.51 jurisdictional differences …. 14.47–14.50 onus of proof …. 14.52 suspension of period …. 14.46–14.52 fraudulent misrepresentation …. 14.46 Ipp report …. 14.9, 14.29 child abuse …. 14.44 children …. 14.32, 14.35 legal disability …. 14.28, 14.29, 14.30 children …. 14.32–14.37 disability, definition …. 14.31 mental or physical disability …. 14.38–14.41 prisoners …. 14.42 mental or physical disability …. 14.38 disability, definition …. 14.39, 14.41 inability to manage affairs …. 14.40 physical disability …. 14.41 under a disability …. 14.40 misleading or deceptive conduct …. 19.115, 19.116 negligent misrepresentation …. 19.62

contracts …. 19.63 other statutes …. 14.5 building legislation …. 14.11, 14.25 overview …. 14.1, 14.6 period of limitation …. 14.7 contribution between tortfeasors …. 14.64–14.67 form of damage …. 14.7 personal injuries …. 14.8, 14.9 property damage …. 14.10–14.13 personal injuries …. 14.8 awareness of right to claim …. 14.17, 14.18 child sexual abuse …. 14.18 commencement of period …. 14.16–14.20 date of action accruing …. 14.17, 14.18 date of discoverability …. 14.19, 14.20 extension of period …. 14.54–14.62 Ipp report …. 14.9 period of limitation …. 14.8, 14.9 procedural notice requirements …. 14.9 wrongful death …. 16.49 private nuisance …. 25.76 property damage …. 14.10 categorisation of damage …. 14.24 commencement of period …. 14.21–14.25 continuing trespass to land …. 14.13 conversion …. 14.12

defective buildings …. 14.11, 14.22–14.25 extension of period …. 14.63 latent defects …. 14.21, 14.22–14.24 period of limitation …. 14.10–14.13 rationale …. 14.2 statutes of limitations …. 14.1, 14.4 effect on proceedings …. 14.3 lack of conformity …. 14.4 other statutes, and …. 14.5 public policy …. 14.2 survival of cause of actions …. 16.58 suspension of period …. 14.6, 14.27, 14.28 child abuse …. 14.28, 14.43–14.45 children …. 14.32–14.37 fraud or improper conduct …. 14.46–14.52 legal disability …. 14.28, 14.29–14.42 mental or physical disability …. 14.38–14.41 prisoners …. 14.42 trespass …. 14.15 trespass to chattels …. 5.102 commencement of period …. 5.103 trespass to land …. 4.71, 14.13 trespass to person …. 3.88 child sexual abuse …. 14.43 wrongful death …. 16.48, 16.50 dust-related conditions …. 16.49

survival of cause of actions …. 16.58

Loss of chance medical negligence …. 12.18–12.20

Loss of consortium and servitium damages …. 17.10, 17.17–17.19 contributory negligence …. 17.20 wife’s position …. 17.11 wrongful death …. 16.31 husband’s actions …. 17.10 abolition of actions …. 17.12, 17.16 contributory negligence …. 17.20 damages …. 17.10, 17.17–17.20 enticement …. 17.13, 17.15, 17.16 harbouring of wife …. 17.14, 17.15, 17.16 seduction …. 17.13, 17.15, 17.16 wife’s position …. 17.11, 17.13 wrongful death …. 16.31

Loss of services domestic service by child …. 17.21 contributory negligence …. 17.22 enticement and harbouring …. 17.26 seduction of daughter …. 17.24, 17.25 statutory modifications …. 17.23, 17.25 employee services …. 17.2, 17.3, 17.6 assessment of damages …. 17.8 availability of action …. 17.2

contributory negligence …. 17.9 damages …. 17.7–17.9 death of employee …. 17.5 defence force personnel …. 17.4 directors …. 17.4 enticement and harbouring …. 17.2 historical background …. 17.2, 17.3 per quod servitium amisit …. 17.2–17.9 wrongful death …. 16.28, 16.29

M Malice fair comment defence …. 23.88, 23.89 vicarious liability …. 23.90 injurious falsehood …. 24.89, 24.92–24.95 qualified privilege …. 23.50, 23.51, 23.52 defamation legislation …. 23.49, 23.51 lack of honest belief …. 23.53, 23.54, 23.55 political communication …. 23.77 vicarious liability …. 23.56, 23.57

Malicious prosecution absence of reasonable and probable cause …. 7.17 abuse of process, distinction …. 18.47 damage requirement …. 7.11, 7.18 costs …. 7.18 damages …. 7.19

elements …. 1.9, 7.11 false imprisonment, distinction …. 7.9, 7.10 improper motive …. 7.16 initiation of prosecution …. 7.12, 7.13 information leading to prosecution, distinction …. 7.13 types of prosecutions …. 7.14 malice requirement …. 1.9, 7.16 onus of proof …. 7.11 overview …. 7.9, 7.10 remedies …. 7.19 termination in plaintiff’s favour …. 7.15 types of prosecutions …. 7.14 vicarious liability …. 20.88

Manufacturers Australian Consumer Law …. 9.128, 9.129 remedies …. 9.128 requirements for actions …. 9.128 safety defect, definition …. 9.128 time limit for actions …. 9.130 dangerous products …. 9.121, 9.122 defective products …. 9.8, 9.122 Australian Consumer Law …. 9.128–9.130 duty of care …. 9.123, 9.124–9.126 historical background …. 1.41, 9.121 duty of care …. 9.123, 9.124 reasonable precautions …. 9.125, 9.126

scope of duty …. 9.124–9.126 warnings of risk …. 9.126 standard of care …. 9.122

Medical emergencies consent to treatment …. 6.22 guardianship legislation …. 6.24 minors …. 6.23 statutory provisions …. 6.23 school authorities …. 11.29 standard of care …. 11.29 person in distress, definition …. 11.29

Medical expenses cost of treatment …. 15.65 future expenses …. 15.59, 15.63, 15.141 evidence of future needs …. 15.67 institutional or home care …. 15.66 overview …. 15.61 past expenses …. 15.56, 15.62 reasonable and necessary …. 15.64–15.67 cost of treatment …. 15.65 institutional or home care …. 15.66

Medical professionals advice and warnings …. 9.97, 11.74, 11.77, 13.90 civil liability legislation …. 11.74–11.76, 13.91, 13.92 proactive duty …. 11.75 reactive duty …. 11.75

Rogers v Whitaker …. 11.77 scope of duty …. 9.97, 11.77 Western Australia …. 11.76 defences …. 13.88 advice and warnings …. 13.90–13.92 Bolam principle …. 11.73, 11.76, 13.90 civil liability legislation …. 13.88, 13.89, 13.91, 13.92 peer professional practice …. 13.88, 13.89 Western Australia …. 11.76, 13.89 duty of care …. 8.9, 9.95, 9.96 advice and warnings …. 9.97, 13.90–13.92 scope of duty …. 9.97 sexually transmitted disease …. 9.100 Sullivan v Moody …. 10.29 third parties …. 9.98–9.100, 10.29 unborn child …. 9.98 wrongful birth …. 9.99 meaning …. 9.96 overview …. 9.96 sexual abuse examinations …. 10.29 standard of care …. 11.15, 11.74 advice and warnings …. 11.74–11.77 civil liability legislation …. 11.74–11.76 inexperience …. 11.21 knowledge at time …. 11.17

Medical treatment see also Wrongful birth; Wrongful

conception; Wrongful life advance health directives …. 6.26 causation …. 12.21, 12.26 intervening acts …. 12.79, 12.80 legally significant cause …. 12.88, 12.89 consent …. 6.14 capacity to consent …. 6.13, 6.18–6.21, 6.24 emergency treatment …. 6.22–6.24 fraud …. 6.10, 6.11, 6.17 guardianship legislation …. 6.18, 6.24 minors …. 6.13, 6.19–6.21, 6.23 requirements for validity …. 6.15 right to refuse treatment …. 6.25, 6.26 scope of consent …. 6.16 voluntariness …. 6.10, 6.11, 6.17 emergency treatment …. 6.22 guardianship legislation …. 6.24 minors …. 6.23 statutory provisions …. 6.23 loss of chance …. 12.18–12.20 minors’ consent …. 6.13, 6.19 cosmetic surgery …. 6.21 emergency treatment …. 6.23 parens patriae jurisdiction …. 6.20 necessity defence …. 6.44, 6.50 right to refuse treatment …. 6.25, 6.26

statutory authority to compel …. 6.50 force feeding …. 6.50 trespass to person …. 6.14 necessity defence …. 6.44

Mental harm see Intentional infliction of psychiatric harm; Pure psychiatric injury Mental illness defence to trespass …. 6.65 involuntarism …. 6.66 limitation of actions …. 14.38 disability, definition …. 14.39, 14.41 inability to manage affairs …. 14.40 under a disability …. 14.40

Mental impairment standard of care …. 11.11, 11.13

Mesne profits …. 4.69 Mesothelioma causation …. 12.46, 12.47, 12.49

Mining rights conversion …. 4.18 trespass to land …. 4.18

Minors see also Parents; School authorities breach of statutory duty …. 18.26, 18.27 capacity to sue and be sued …. 1.21, 1.22 guardian ad litem …. 1.22 intention …. 1.23

liability for torts …. 1.23 next friend …. 1.22 parent and child …. 1.24, 1.25 child abuse …. 14.43 Ipp report …. 14.44 limitation of actions …. 14.18, 14.28, 14.43–14.45 range of actions …. 14.43 vicarious liability of employers …. 20.40–20.47 consent to medical treatment …. 6.13, 6.19 cosmetic surgery …. 6.21 emergency treatment …. 6.23 parens patriae jurisdiction …. 6.20 contributory negligence …. 13.11 dependants, as …. 16.18 domestic service for parents …. 17.21 contributory negligence …. 17.22 enticement and harbouring …. 17.26 seduction of daughter …. 17.24, 17.25 statutory modifications …. 17.23, 17.25 duty of care …. 9.57 education requirement …. 9.69 limitation of actions …. 14.32 child abuse …. 14.18, 14.28, 14.43–14.45 Ipp report …. 14.32, 14.35 notice requirements …. 14.36, 14.37 parent or guardian …. 14.33, 14.36, 14.37

suspension of period …. 14.32–14.37 Western Australia …. 14.34 overview …. 1.21, 6.19 parental right to discipline …. 6.53 personal injury damages …. 15.73 standard of care …. 11.9 adult activities …. 11.10 child plaintiff …. 11.31, 11.32 contributory negligence …. 13.11 wrongful death …. 16.21 dependants …. 16.18

Misfeasance nonfeasance, distinction …. 1.4, 9.67 overview …. 1.4, 1.5 private nuisance …. 24.34, 24.36 fault …. 24.38, 24.39 Rylands v Fletcher …. 24.38, 24.39 strict liability …. 24.36, 24.38, 24.39

Misfeasance in public office damage requirement …. 18.53, 18.62 foreseeability of harm …. 18.63 elements …. 18.53 intention of defendant …. 18.52 intention to cause harm …. 1.6, 18.56 invalid or unauthorised act …. 18.54, 18.55 malice …. 18.56–18.59

malice …. 18.56 establishing malice …. 18.56–18.59 intention to cause harm …. 18.56 reckless indifference …. 18.56, 18.57 overview …. 18.1, 18.51 policy considerations …. 18.51 purported discharge of duty …. 18.53, 18.60, 18.61 public officer, definition …. 18.60

Misleading or deceptive conduct misrepresentation …. 19.92–19.116 accessorial liability …. 19.97, 19.98 conduct constituting …. 19.103–19.19.108 contributory negligence …. 19.112 corporations …. 19.95–19.98 damages …. 19.110–19.114 disclaimers …. 19.109 exemplary damages …. 19.114 limitation of actions …. 19.115, 19.116 persons …. 19.95, 19.96, 19.97 trade or commerce …. 19.99–19.101 defamation …. 22.95–22.99 advantages of actions …. 22.97 supply of goods or services …. 22.98 unincorporated individuals …. 22.96 injurious falsehood …. 24.100–24.101 passing off …. 1.50, 24.34-24.36

common law, distinction …. 24.35

Misrepresentation see Deceit; Misleading or deceptive conduct; Negligent misrepresentation; Passing off Mistake conversion …. 6.64 detinue …. 6.64 false imprisonment …. 6.64 overview …. 6.64 trespass to chattels …. 5.26

Motive …. 1.8 Motor vehicle accidents compensation schemes …. 9.66 dependency claims …. 16.46 no-fault schemes …. 1.47, 2.22, 9.66, 15.97 periodic payments …. 15.37 contributory negligence …. 13.12 apportionment legislation …. 13.23, 13.24, 13.26 causation …. 13.20 failure to use safety devices …. 13.27, 13.28–13.30 intoxication …. 13.12, 13.42–13.45 100% apportionment …. 13.26 exemplary damages …. 15.22 joint illegal enterprise …. 13.74, 13.75 overview …. 1.47 third party insurance …. 1.57, 9.58, 9.65, 20.60 gratuitous care services …. 15.93, 15.94, 15.95, 15.97

volenti non fit injuria …. 13.65 defective vehicles …. 13.65 defendant intoxicated …. 13.63 implied acceptance …. 13.65 inexperienced drivers …. 13.65 intoxication …. 13.61, 13.62, 13.63 plaintiff intoxicated …. 13.62

Motor vehicle drivers breach of duty …. 11.78 anticipation of negligence …. 11.80, 11.82 duty of care …. 9.8, 9.57, 9.60 child drivers …. 9.57 off-road and rally events …. 9.61 pedestrians …. 9.63 police officers …. 9.57 scope of duty …. 9.62–9.64 taxi drivers …. 9.64 third party insurance …. 9.58, 9.65 unborn child …. 9.59 inexperienced drivers …. 1.57, 11.23, 11.25, 13.65 knowledge of inexperience …. 11.24, 11.25 volenti non fit injuria …. 13.65 standard of care …. 9.60, 11.25, 11.78 inexperience …. 1.57, 11.23, 11.24, 11.25 intoxication …. 11.26 third party insurance …. 1.57, 9.58, 9.65

Motor vehicle owners vicarious liability …. 20.57, 20.58 hire care firms …. 20.59 legislation …. 20.60 rebuttal of presumption …. 20.59

Motor vehicles conversion …. 5.50 ‘joy-ride’ cases …. 5.50 security interests …. 5.17 trespass to chattels …. 5.13, 5.17, 5.50

Multiple tortfeasors see also Concurrent tortfeasors interpretation …. 21.1 legal relationships …. 21.2 overview …. 21.1 successive tortfeasors …. 21.2 concurrent tortfeasors, distinction …. 21.3

N Necessity imminent threat …. 6.41 defendant’s actions or negligence …. 6.43 medical necessity …. 6.44 force feeding …. 6.50 overview …. 6.39 private nuisance …. 25.63 reasonable necessity …. 6.42

requirements of defence …. 6.40

Negligence animals …. 26.24, 26.29 breach of duty …. 26.32 defences …. 26.33 knowledge of dangerous propensity …. 26.30 obvious risk …. 26.31 straying onto highways …. 26.35, 26.36 basis of liability …. 25.97 breach of standard of care see Breach of duty calculus of negligence …. 8.14 consent …. 13.48 contract, and …. 1.30 contributory see Contributory negligence damage element see Causation; Damage requirement damages …. 15.26 compensatory damages …. 15.26, 15.28 exemplary damages …. 15.21 defences …. 13.1, 25.101 animals …. 26.33 civil liability legislation …. 13.1 consent …. 13.48 exclusion of liability clauses …. 13.1, 13.104, 13.105 good Samaritans …. 13.99, 13.100 illegality …. 13.71–13.79 immunity from liability …. 13.80–13.103

inherent risk …. 13.95, 13.96 joint illegal enterprise …. 13.72–13.75, 13.79, 25.101 medical professionals …. 13.88–13.92 obvious risk …. 13.93, 13.94 plaintiff’s illegal activity …. 13.76–13.79 professional practice standards …. 13.81–13.87, 13.91 public safety entities …. 13.101 rescue cases …. 13.97–13.101 volunteers …. 13.102, 13.103 definition …. 1.6 distinguishing feature …. 8.3 Donoghue v Stevenson …. 1.42, 8.11 duty of care see Duty of care elements …. 8.4, 8.5, 8.6, 25.93 difficulties in distinguishing …. 8.5, 8.6 evolution of action …. 1.39, 1.40, 1.41, 1.43, 25.94 contractual relationships …. 1.40, 1.41 Donoghue v Stevenson …. 1.42 employment relationship …. 1.43 insurance, and …. 1.43, 1.51, 1.52 neighbour principle …. 1.42 pure economic loss …. 1.43 fault …. 2.18, 20.1 intention …. 2.22, 2.25, 3.18 jury trials …. 11.88 appeals …. 11.93–11.96

control of proceedings …. 11.89 directions to jury …. 11.91 limit on availability …. 8.26, 11.92 questions of fact …. 8.24, 11.88 questions of law …. 8.24, 11.88 withholding case from jury …. 11.90 legal concept …. 8.2 neighbour principle …. 1.42, 8.11 nuisance, comparison …. 25.93 basis of liability …. 25.97 class of wrongdoers …. 25.96 damage …. 25.100 defences …. 25.101 historical development …. 25.94 interests protected …. 25.95 onus of proof …. 25.99 reasonableness, measuring …. 25.98 remedies …. 25.102 right to sue …. 25.95 onus of proof …. 2.23, 25.99 overview …. 8.1, 8.2, 8.3, 11.2, 25.93 personal injury damages see Personal injury damages psychiatric illness …. 1.15 questions of fact …. 8.23, 8.26, 11.88 appeals …. 8.24, 8.25 questions of law …. 8.21, 8.22, 8.26, 11.88

appeals …. 8.24 reasonable foreseeability …. 8.7, 8.8 reasonableness, measuring …. 25.98 scope of protection …. 8.1 standard of care see Standard of care structure of action …. 8.4, 8.5, 8.6 voluntary assumption of risk see Volenti non fit injuria

Negligent misrepresentation assumption of responsibility …. 19.19, 19.21, 19.23 disclaimers …. 19.46, 19.48 evidence of assumption …. 19.25 financial interest of speaker …. 19.26 implied acceptance …. 19.48 objective determination …. 19.24 Australian Consumer Law, and …. 1.50, 19.3, 19.92 breach of duty …. 19.9, 19.53 question of fact …. 19.56 contributory negligence …. 19.59 damage requirement …. 19.9, 19.57 reasonable foreseeability …. 19.58 damages …. 19.60 consequential loss …. 19.61 loss of opportunity …. 19.61 disclaimers …. 19.21, 19.46, 19.47, 19.50 implied acceptance …. 19.48 no reliance clauses …. 19.49

duty of care …. 10.79, 19.1, 19.9, 19.18, 19.42 assumption of responsibility …. 19.19, 19.21, 19.23–19.26, 19.46, 19.48 characteristics of relationship …. 19.20 continuous duty …. 19.52 current approach …. 19.22 determining existence …. 19.19 disclaimers …. 19.21, 19.46–19.50 historical background …. 19.10–19.17 indeterminate liability …. 19.42 policy considerations …. 19.10, 19.17, 19.42 reasonable foreseeability …. 19.19 reasonable reliance …. 19.19, 19.21, 19.27–19.45, 19.47, 19.49 recognition of duty …. 19.11 scope of duty …. 19.51, 19.52 special relationship …. 19.12, 19.13, 19.14, 19.17, 19.20, 19.21, 19.22 third parties …. 19.42–19.45 establishing an action …. 19.9 historical background …. 19.10 Australian position …. 19.15, 19.16 limited liability …. 19.12, 19.14 policy considerations …. 19.10 recognition of duty …. 19.11 special relationship …. 19.12, 19.13, 19.14, 19.17 limitation of actions …. 19.62 contracts …. 19.63

overview …. 19.1, 19.2, 19.9 pure economic loss …. 10.79, 10.98, 19.1, 19.9, 19.18, 19.64 historical background …. 19.10, 19.11 reasonable foreseeability …. 19.58 reasonable reliance …. 19.19, 19.21, 19.27, 19.30, 19.31 business of giving advice …. 19.39 casual or social context …. 19.35 circumstances of provision …. 19.33–19.36 disclaimers …. 19.47, 19.49 implied reliance …. 19.37 intention to induce reliance …. 19.29, 19.30 ‘kerbside opinion’ …. 19.35 nature of advice or information …. 19.32 ‘off-the-cuff’ advice …. 19.35 provisional estimates …. 19.36 relevant factors …. 19.31 significant business experience …. 19.28 special skill …. 19.38, 19.39 statutory authorities …. 19.40, 19.41 third parties …. 19.42–19.45 volunteered information …. 19.34 vulnerability of plaintiff …. 19.28 special relationship …. 19.12, 19.13, 19.14, 19.17 characteristics of relationship …. 19.20 factors in establishing …. 19.21, 19.22 standard of care …. 19.54

statutory authorities …. 19.40, 19.41 third parties …. 19.42 ascertainable classes …. 19.44, 19.45 auditor’s reports …. 19.43 valuations …. 19.44, 19.45

Neighbour principle …. 1.42, 8.11, 8.12, 9.4, 10.5, 10.8 Nervous shock see Intentional infliction of psychiatric injury; Pure psychiatric injury No fault compensation see also Criminal injuries compensation; Motor vehicle accidents; Workers’ compensation overview …. 1.45

Non-delegable duty see also Vicarious liability breach of duty …. 20.81 child sexual abuse …. 20.81, 20.82 intentional acts …. 20.81 strict liability …. 20.82 categories of relationships …. 20.64, 20.72 difficulty in identifying …. 20.74 new categories …. 20.72, 20.75, 20.80 characteristics of relationship …. 20.72 control …. 20.73, 20.75 difficulty in identifying …. 20.74 civil liability legislation …. 20.84 common law imposition …. 20.62 employers …. 9.47, 20.64, 20.65 collateral negligence of contractors …. 20.66

hospitals …. 9.102, 20.64, 20.68, 20.69 outpatients …. 20.68 specialists treating private patients …. 20.69 Ipp report …. 20.84 landlords …. 20.76 inherent risk of damage …. 20.76, 20.77 meaning …. 20.63 occupiers of premises …. 20.64, 20.70 animals …. 20.71 persons or goods …. 20.71 overview …. 20.3, 20.61, 20.63 school authorities …. 9.75, 20.64, 20.67 child sexual abuse …. 20.81, 20.82 scope of duty …. 20.81, 20.82 scope of duty …. 20.81 ability to discharge duty …. 20.83 strict liability …. 20.82, 20.83 statutory authorities …. 20.78 immigration detainees …. 20.79

Nonfeasance misfeasance, distinction …. 1.4, 9.67 overview …. 1.4 private nuisance …. 24.34, 24.35

Northern Territory wrongful death …. 16.9

Nuisance

damage requirement …. 25.1, 25.97 historical background …. 25.1, 25.94 injunctions …. 15.7 negligence, comparison …. 25.93 basis of liability …. 25.97 class of wrongdoers …. 25.96 damage …. 25.100 defences …. 25.101 historical development …. 25.94 interests protected …. 25.95 onus of proof …. 25.99 reasonableness, measuring …. 25.98 remedies …. 25.102 right to sue …. 25.95 overview …. 25.1, 25.93 private see Private nuisance public see Public nuisance

O Obvious risk animals …. 26.31 dangerous recreational activities …. 13.68, 13.69, 13.70 defence, as …. 13.93, 13.94 definition …. 11.63, 13.53 duty to warn …. 11.63, 13.93 animals …. 26.31

failure to warn …. 11.62, 11.63 objective test …. 13.94 overview …. 11.62, 26.31 professionals …. 13.87 voluntary assumption of risk …. 13.53 dangerous recreational activities …. 13.68, 13.69, 13.70 onus of proof …. 13.53 plaintiff’s knowledge and experience …. 13.54 statutory presumption …. 13.53

Occupational health and safety see also Employer’s duty to employees; Workers’ compensation breach of statutory duty …. 18.3 employee actions …. 9.29 historical development …. 9.28, 9.48, 18.3 national uniform legislation …. 9.49, 9.50 categories of offences …. 9.52 industries outside …. 9.51 specific employer duties …. 9.50 overview …. 9.49

Occupiers of premises criminal acts of third parties …. 9.5, 9.24 issue of control …. 9.25 employers, as …. 9.40 historical background …. 9.9 abandonment of rules …. 9.10 classes of entrants …. 9.9, 9.17

old rules …. 9.9, 9.10, 9.17 intoxicated persons …. 1.37, 9.15, 9.16, 9.25, 10.37 landlords …. 9.21, 9.23 occupation, meaning …. 9.22 non-delegable duty …. 20.64, 20.70 animals …. 20.71 persons or goods …. 20.71 occupation, meaning …. 9.11, 9.22 occupiers, meaning …. 9.11 overview …. 9.8, 9.10 private nuisance …. 25.8 consent to be on land …. 25.8 continuation of nuisance …. 25.10 knowledge of nuisance …. 25.8, 25.9, 25.10 pre-occupation nuisance …. 25.9, 25.10 steps to abate nuisance …. 25.11 title to sue …. 25.7 proximity …. 9.10 scope of duty …. 9.12, 9.13, 9.14 civil liability legislation …. 9.17 criminal acts of third parties …. 9.24, 9.25 intoxicated persons …. 9.15, 9.16 landlords …. 9.21–9.23 type of premises …. 9.12 warning signs …. 9.18–9.20 warning signs …. 9.18, 9.19

relevant factors …. 9.20

Onus of proof actions on the case …. 2.21 causation …. 12.53 civil liability legislation …. 12.54, 12.55 Ipp report …. 12.55 criminal law …. 1.32 deceit …. 19.68 false imprisonment …. 3.61 civil arrest …. 3.70 limitation of actions …. 14.52 malicious prosecution …. 7.11 negligence …. 2.23, 11.97, 11.111, 25.99 equally consistent evidence …. 11.98 factual evidence …. 11.99 inferences …. 11.98, 11.99 no case to answer …. 11.100, 11.101 res ipsa loquitur …. 11.104, 11.106, 11.111 overview …. 1.32 private nuisance …. 25.54, 25.99 public nuisance …. 25.90, 25.99 trespass …. 2.12, 2.20, 2.23 highway/non-highway distinction …. 2.6, 2.7, 2.20 non-highway cases …. 2.23 statutory authority defence …. 6.49 voluntary assumption of risk …. 13.53

intoxication …. 13.62

P Parents damages …. 17.1 domestic service by child …. 17.21, 17.24 seduction of daughter …. 17.24 dependants, as …. 16.18 disciplinary right …. 6.53 domestic service by child …. 17.21 contributory negligence …. 17.22 enticement and harbouring …. 17.26 seduction of daughter …. 17.24, 17.25 statutory modifications …. 17.23, 17.25 duty of care …. 9.68, 9.77 control of child …. 9.80–9.82 parental immunity …. 9.77, 9.78 ‘particular situation’ …. 9.78, 9.79 quality of supervision …. 9.77, 9.78 scope of duty …. 9.79 third parties …. 9.80–9.82 education of child …. 9.69 maintenance of child …. 1.25 tortious proceedings between child, and …. 1.24, 1.25

Parties see Capacity to sue and be sued Partnerships

defamation …. 22.86 damages …. 22.87 personal injury damages …. 15.70 vicarious liability …. 20.4

Passing off account of profits …. 15.6, 24.31 damage requirement …. 24.8, 24.20 likelihood of adverse effect …. 24.20 damages …. 24.30 exemplary damages …. 24.32 defences …. 24.28, 24.29 establishing an action …. 24.7, 24.8 examples …. 24.21 association with plaintiff …. 24.22 celebrity endorsement …. 24.25, 24.26 character merchandising …. 24.27 similar descriptive material …. 24.24 similar or same name …. 24.23 false representation …. 24.8, 24.11 ‘calculated to deceive’ …. 24.14, 24.18 common field of activity …. 24.13 deceived …. 24.16–24.19 forms of representation …. 24.12 intention …. 24.14, 24.15 likely impression …. 24.19 mere confusion or uncertainty …. 24.17

public or section of public …. 24.18, 24.19 visual images …. 24.12 injunctions …. 24.33 injurious falsehood, distinction …. 24.6 inverse passing off …. 24.29 misleading or deceptive conduct …. 1.50, 24.34, 24.36 common law, distinction …. 24.35 overview …. 24.1, 24.6, 24.7, 24.9 remedies …. 24.30 account of profits …. 15.6, 24.31 exemplary damages …. 24.32 injunctions …. 24.33 reputation …. 24.8, 24.9 establishing proof …. 24.10 indirect advertising …. 24.10 trade marks …. 24.37 statutory protection …. 24.34 copyright …. 24.37 misleading or deceptive conduct …. 24.34–24.36 trade marks …. 24.37

Pedestrians duty of care …. 9.63

Per quod servitium amisit see Loss of services Personal injuries cattle trespass …. 26.26 limitation of actions …. 14.8

awareness of right to claim …. 14.17, 14.18 child sexual abuse …. 14.18 commencement of period …. 14.16–14.20 date of action accruing …. 14.17, 14.18 date of discoverability …. 14.19, 14.20 extension of period …. 14.54–14.62 Ipp report …. 14.9, 14.29 period of limitation …. 14.8, 14.9 procedural notice requirements …. 14.9 private nuisance, and …. 24.31

Personal injury damages administration of award …. 15.131 aggravated damages …. 15.24 appeals …. 15.151, 15.152 assessment …. 15.53 date to assess …. 15.148 non-pecuniary losses …. 15.111–15.115 award …. 15.148 costs …. 15.149 taxation …. 15.150 collateral benefits …. 15.134 employment benefits …. 15.135 Medicare benefits …. 15.139 social security benefits …. 15.138 voluntary employer payments …. 15.136 voluntary gifts …. 15.134, 15.136

workers’ compensation …. 15.137 compensatory damages …. 15.55 general damages …. 15.58–15.60 special damages …. 15.56, 15.57 costs …. 15.149 dependency claims …. 16.45 ‘egg-shell skull’ rule …. 15.30 employment benefits …. 15.135 voluntary employer payments …. 15.136 exemplary damages …. 15.21 financial loss …. 15.54 future economic losses …. 15.87, 15.140 ascertaining present value …. 15.142 discount rate …. 15.142 inflation …. 15.141 lump sum advantages …. 15.140 general damages …. 15.58 non-pecuniary damages …. 15.60, 15.107–15.128 pecuniary damages …. 15.59, 15.91 gratuitous domestic services …. 15.104 civil liability legislation …. 15.105, 15.106 meaning …. 15.106 nursing care …. 15.106 gratuitous services …. 15.89, 15.90, 15.101 basis of claims …. 15.90 carer’s allowance, and …. 15.91

civil liability legislation …. 15.96–15.103 classification of damages …. 15.91 future services …. 15.100 general damages, as …. 15.91 hourly rate …. 15.103 indemnity principle …. 15.92 interpretation issues …. 15.99, 15.100 market cost of services …. 15.90 meaning …. 15.102 provision by defendant …. 15.93–15.95 statutory restrictions …. 15.96–15.103 thresholds and limits …. 15.98 wages forgone …. 15.90 heads of damages …. 15.54 hospital expenses …. 15.61 cost of treatment …. 15.65 evidence of future needs …. 15.67 future expenses …. 15.59, 15.63, 15.67, 15.141 indemnity principle …. 15.84, 15.141 institutional or home care …. 15.66 past expenses …. 15.56, 15.62 reasonable and necessary expenses …. 15.64–15.67 illegal activity, and …. 13.77, 13.79 indictable offences …. 13.78 reduction in damages …. 13.78 indemnity principle …. 15.83, 15.133

collateral benefits …. 15.134 contingencies or vicissitudes …. 15.86–15.88 employment benefits …. 15.135 future economic losses …. 15.87, 15.141 gratuitous services …. 15.92 loss of earning capacity …. 15.84, 15.85, 15.86–15.88, 15.133 overlap of damage …. 15.83, 15.84 social security benefits …. 15.138 voluntary employer payments …. 15.136 voluntary gifts …. 15.134, 15.136 interest …. 15.143, 15.144 exercise of discretion …. 15.145 non-pecuniary damages …. 15.147 ordinary commercial rates …. 15.146 taxation …. 15.150 jury trials …. 15.152 loss of amenities …. 15.60, 15.107, 15.108, 15.124, 15.127 age of plaintiff …. 15.126 indigenous persons …. 15.125 pre-injury activities …. 15.125, 15.127 loss of earning capacity …. 15.54, 15.68 assessment period …. 15.77–15.80 calculation net of tax …. 15.85 children …. 15.73 contingencies or vicissitudes …. 15.86–15.88 court’s approach …. 15.69

early retirement …. 15.76 future children …. 15.88 future household help …. 15.88 future increased earnings …. 15.71 future loss …. 15.59, 15.78, 15.88, 15.140, 15.141 imprecise weekly loss …. 15.74 indemnity principle …. 15.84, 15.85, 15.86–15.88, 15.133, 15.141 irregular employment …. 15.72 life expectancy …. 15.80 loss of earnings, distinction …. 15.68 ‘lost years’ component …. 15.80 net amount …. 15.85 partnership income …. 15.70 past loss …. 15.56, 15.77 pre-existing medical conditions …. 15.79 remaining unemployed …. 15.75 statutory restrictions …. 15.81, 15.82 superannuation contributions …. 15.82 loss of expectation of life …. 15.60, 15.107, 15.108, 15.117 objective loss …. 15.118 management of award …. 15.131 medical expenses …. 15.61 cost of treatment …. 15.65 evidence of future needs …. 15.67 future expenses …. 15.59, 15.63, 15.67, 15.141 institutional or home care …. 15.66

past expenses …. 15.56, 15.62 reasonable and necessary expenses …. 15.64–15.67 mitigation of damage …. 15.57 institutional or home care …. 15.66 notice of action …. 15.44 non-pecuniary losses …. 15.54, 15.60, 15.107 age of plaintiff …. 15.116, 15.117 assessment …. 15.111–15.115 civil liability legislation …. 15.108–15.115 court’s considerations …. 15.115 degree of insight …. 15.119 injury scale values …. 15.112, 15.113 life expectancy …. 15.117, 15.118 loss of amenities …. 15.60, 15.107, 15.108, 15.124–15.127 loss of expectation of life …. 15.60, 15.107, 15.108, 15.117, 15.118 pain and suffering …. 15.60, 15.107, 15.108, 15.120–15.123 pre-existing conditions …. 15.113, 15.128 Queensland …. 15.112–15.115 rules of court …. 15.113 thresholds and limits …. 15.109, 15.110 whole person impairment …. 15.114 once and for all rule …. 15.33 disadvantages …. 15.35 fresh evidence …. 15.34 other expenses …. 15.129 administration of award …. 15.131

management of award …. 15.131 remodelling of home …. 15.130 overview …. 15.1, 15.53, 15.54 pain and suffering …. 15.60, 15.107, 15.108, 15.120, 15.123 permanent unconsciousness …. 15.122 relevant factors …. 15.121 remodelling of home …. 15.130 social security benefits …. 15.138 gratuitous care, and …. 15.91 special damages …. 15.56 hospital expenses …. 15.62 loss of earning capacity …. 15.77 medical expenses …. 15.62 reasonable expenses …. 15.57 statutory modification …. 1.18, 15.53 background to reforms …. 15.53 structured settlements …. 15.37, 15.38 definition …. 15.37 tax advantages …. 15.38 taxation …. 15.150 interest …. 15.150 loss of earnings …. 15.85 trespass to person …. 3.78 types of losses …. 15.54 workers’ compensation, and …. 15.137

Personal property securities …. 5.17

Police officers arrest powers …. 3.64, 3.65 delay in charging …. 3.65 trespass to land …. 4.28 warrant arrests …. 3.67 warrant without authority …. 3.68 without warrant …. 3.65, 3.66 duty of care …. 10.144 road users …. 9.57 false imprisonment …. 3.51 arrest powers …. 3.65–3.68 assertion of authority …. 3.58 delay in charging …. 3.65 warrant arrests …. 3.67 intimidation …. 24.79 trespass to land …. 4.28 authorised by law …. 4.37, 6.48, 6.50 revocation of consent …. 4.35, 6.28 vicarious liability …. 20.20, 20.88 statutory reform …. 20.20, 20.88

Prison authorities defence forces …. 3.72 duty of care …. 9.68, 9.83 at risk prisoners …. 9.88 employees …. 9.89 escaped prisoners …. 9.89

immigration detention …. 9.84 paroled prisoners …. 9.90 reasonable precautions …. 9.87 scope of duty …. 9.85–9.88 third parties …. 9.89, 9.90 false imprisonment …. 3.71, 6.64 defence forces …. 3.72

Prisoners force feeding …. 6.50 legal disability …. 14.42 limitation of actions …. 14.42

Privacy Australian Law Reform Commission …. 7.21, 7.28 statutory cause of action …. 7.29 types of interferences …. 7.30 invasion of privacy …. 3.36, 7.20, 7.22 broadcasting …. 7.24, 7.25, 7.27, 7.28 developing technologies …. 7.20 development of tort …. 3.36, 7.23–7.27 elements …. 7.25 listening devices …. 6.50 New Zealand …. 7.31 other jurisdictions …. 7.31 public interest defence …. 7.25 recognition of tort …. 7.22, 7.25, 7.26, 7.27 reform recommendations …. 7.21, 7.28–7.30

United Kingdom …. 7.31 overview …. 1.12, 7.20 surveillance devices …. 7.22 trespass to land …. 7.22

Private nuisance abatement …. 25.68, 25.102 trespass to land …. 6.38, 25.68 animals …. 26.1, 26.39 balancing of rights …. 25.3 basis of liability …. 25.97 competing interests …. 25.3, 25.42 continuing nuisance …. 25.5, 25.76 contributory negligence …. 25.59, 25.101 damage requirement …. 25.4, 25.53, 25.97, 25.100 reasonably foreseeable …. 25.53 damages …. 25.71, 25.72, 25.102 decrease in land value …. 25.74 enjoyment of land …. 25.75 loss of amenity …. 25.75 loss of profits …. 25.72 material damage …. 25.73, 25.74 defences …. 25.55, 25.64, 25.101 activities benefiting society …. 25.66 acts of another …. 25.62 consent …. 25.61 contributory negligence …. 25.59

easements …. 25.60 jus tertii, and …. 25.65 necessity …. 25.63 statutory authorisation …. 25.55–25.58, 25.101 easements …. 25.60 prescriptive right …. 25.60 elements …. 25.4 enjoyment of land …. 24.16, 24.17, 24.28, 24.30, 24.40, 25.53 abnormal sensitivity …. 25.51 availability of alternative means …. 25.49, 25.50 competing interests …. 24.42 cost of alternative means …. 25.50 court’s approach …. 24.42 damages …. 25.75 duration of interference …. 25.46 locality …. 24.43, 24.44 motive of defendant …. 25.52 nature of activities …. 25.47, 25.48 reasonable person test …. 24.42 social utility of activities …. 25.48 substantial interference …. 24.41 time of interference …. 25.45 unreasonable interference …. 24.42–25.52 historical background …. 25.1, 25.94 injunctions …. 24.28, 25.69, 25.75, 25.102 quia timet injunctions …. 25.70, 25.71

types of injunctions …. 25.70 interference with protected rights …. 24.27, 24.31 actual or likely interference …. 24.29 enjoyment of land …. 24.28, 24.30, 24.40–25.52 isolated interference …. 24.27 material damage …. 24.30, 24.32–25.39 one-off occurrence …. 24.27 personal injuries …. 24.31 interference with rights …. 25.4, 24.16 kinds of interference …. 24.16 measuring reasonableness …. 25.98 rights capable of protection …. 24.16–25.26 landlord and tenant …. 25.12 control of activities …. 25.13 failure to repair …. 25.14 title to sue …. 25.6, 25.7 lawful interference …. 25.3 limitation period …. 25.76 material damage …. 24.16, 24.30, 24.32, 25.53 chattels on land …. 24.33 damages …. 25.73, 25.74 misfeasance …. 24.34, 24.36–25.39 nonfeasance …. 24.34, 24.35 misfeasance …. 24.34, 24.36 fault …. 24.38, 24.39 Rylands v Fletcher …. 24.38, 24.39

strict liability …. 24.36, 24.38, 24.39 nonfeasance …. 24.34, 24.35 occupiers of land …. 25.8, 25.96 consent to be on land …. 25.8 continuation of nuisance …. 25.10 knowledge of nuisance …. 25.8, 25.9, 25.10 pre-occupation nuisance …. 25.9, 25.10 steps to abate nuisance …. 25.11 title to sue …. 25.7 onus of proof …. 25.54, 25.99 overview …. 25.1, 25.2, 25.3, 25.93 remedies …. 25.67, 25.102 abatement …. 25.68 damages …. 25.71–25.75 equitable damages …. 25.71 injunctions …. 25.69, 25.70 rights capable of protection …. 24.16, 24.17, 25.95 access …. 24.24 enjoyment of land …. 24.17 land, meaning …. 24.17 light …. 24.21, 24.22 noise and vibration …. 24.26 smells and fumes …. 24.25 support of land …. 24.18–25.20 riparian rights …. 24.23 statutory authorisation …. 25.55, 25.101

establishing defence …. 25.56 intention of legislature …. 25.56, 25.57 operation of defence …. 25.58 support of land …. 24.18 scope of protection …. 24.19 statutory abolition …. 24.20 title to sue …. 25.4, 25.5, 25.95 actual possession of land …. 25.5 family of owner or tenant …. 25.7 licensees …. 25.7 mere occupation …. 25.7 mere possession …. 25.7 owners …. 25.6, 25.7 reversionary owners …. 25.6 tenants …. 25.6, 25.7 trespasser’s liability …. 25.15 unlawful interference …. 25.2, 25.3 who can be sued …. 25.15 creator of nuisance …. 25.15 landlord and tenant …. 25.12–25.14 occupiers of land …. 25.8–25.11 trespassers …. 25.15

Product liability see Defective products Professionals civil liability legislation …. 11.18 advice or warnings …. 11.74–11.76

professional practice standards …. 11.72, 11.74, 13.82–13.87, 13.91, 19.55 definition …. 13.84 duty of care …. 9.8, 9.91, 10.97 content of duty …. 9.93 examples of relationships …. 9.92 pure economic loss …. 9.94, 10.79, 10.97–10.106 third parties …. 9.94, 10.79, 10.97–10.106 legal professionals see Barristers; Solicitors medical professionals see Medical professionals negligent misrepresentation …. 19.55 professional practice standards …. 11.71, 13.81 advice or warnings …. 11.74, 13.86, 13.91, 19.55 civil liability legislation …. 11.72, 11.74, 13.82–13.87, 19.55 defence, as …. 13.83 harm, definition …. 13.86 obvious risks …. 13.87 peer professional opinion …. 13.85 professional, definition …. 13.84 proportionate liability …. 21.31 standard of care …. 11.14, 11.71 accepted practice …. 11.72 advice or warnings …. 11.74–11.77, 13.86 civil liability legislation …. 11.18, 11.72, 11.74–11.76, 13.82, 13.86 knowledge at time …. 11.18 professional practice standards …. 11.71–11.77, 13.81, 13.82, 13.86

specialists …. 11.15 third parties …. 9.94, 10.79, 10.97 coherency …. 10.104–10.106 coincident interests …. 10.104, 10.105 control and vulnerability …. 10.102, 10.103 Hill v Van Erp …. 10.100 indeterminate liability …. 10.106 reluctance to extend scope …. 10.99 scope of duty …. 10.101

Profits a prendre trespass to land …. 4.12

Property damage see also Defective structures damages …. 15.45 benefit from damage …. 15.47 consequential losses …. 15.49–15.52 cost of repairs …. 15.46 diminished value …. 15.46 ‘egg-shell skull’ rule …. 15.30 loss of use of funds …. 15.50, 15.51 opportunity cost …. 15.51 profit-making property …. 15.49 replacement costs …. 15.48 legal recognition …. 12.4 limitation of actions …. 14.10 categorisation of damage …. 14.24 commencement of period …. 14.21–14.25

continuing trespass to land …. 14.13 conversion …. 14.12 defective buildings …. 14.11, 14.22–14.25 extension of period …. 14.63 latent defects …. 14.21, 14.22–14.24 period of limitation …. 14.10–14.13 relational loss …. 10.79, 10.81, 10.86 ascertainable class …. 10.87–10.90 Caltex decision …. 10.82, 10.83, 10.85 indeterminate liability …. 10.84, 10.86, 10.87 insurance …. 10.93 interference with pursuit of business …. 10.94–10.96 interruption of gas supply …. 10.90, 10.93 reasonably foreseeable …. 10.90 vertically integrated operations …. 10.88, 10.89 vulnerability and control …. 10.91–10.93

Proportionate liability background to proposals …. 21.28, 21.30, 21.31 civil liability legislation …. 21.32 apportionable claims …. 21.34 apportioning liability …. 21.41, 21.42 concurrent wrongdoer, definition …. 21.35, 21.36, 21.37, 21.38 excluded claims …. 21.39, 21.40 fraudulent wrongdoers …. 21.40 intentional wrongdoers …. 21.40 requirements …. 21.33

Ipp report …. 21.32 overview …. 21.30, 21.32

Provocation assault and battery …. 3.43, 3.44, 6.35, 6.36 elements …. 6.35 overview …. 6.35 statutory defence …. 6.35, 6.36

Psychiatric illness see also Intentional infliction of psychiatric injury; Pure psychiatric injury fear of developing …. 12.17 grief, distinction …. 12.16 overview …. 1.15 recognition of damage …. 12.16, 12.17

Public and statutory duties abuse of process …. 18.1, 18.41, 18.42 damage requirement …. 18.44, 18.49 defences …. 18.50 defendant as party to proceedings …. 18.48 elements …. 18.44 improper purpose …. 18.44, 18.45 malicious prosecution, distinction …. 18.47 mixed purposes …. 18.46 recognition in Australia …. 18.43 breach of statutory duty see Breach of statutory duty misfeasance in public office …. 18.1, 18.51 damage requirement …. 18.53, 18.62, 18.63

elements …. 18.53 foreseeability of harm …. 18.63 intention of defendant …. 18.52 invalid or unauthorised act …. 18.53, 18.54–18.59 malice …. 18.56–18.59 policy considerations …. 18.51 public officer, definition …. 18.60 purported discharge of duty …. 18.53, 18.60, 18.61 overview …. 18.1

Public authorities see also Police officers breach of duty …. 10.131, 10.132 breach of statutory duty …. 18.33 civil liability legislation …. 10.131, 10.132 breach of statutory duty …. 18.33 common law, and …. 10.134 function, definition …. 10.133 policy or operational decisions …. 10.138 road authorities …. 10.148, 10.149, 10.150, 10.151 duty of care …. 10.3, 10.4, 10.10, 10.120, 10.122 civil liability legislation …. 10.131–10.134, 10.138 coherency of the law …. 10.143–10.145 control and vulnerability …. 10.139–10.142 difficulties of novel duties …. 10.123 duty to act …. 10.127, 10.129 established categories …. 10.121 exercise of power …. 10.122, 10.126, 10.127, 10.128

failure to exercise power …. 10.127, 10.130 policy or operational decisions …. 10.120, 10.135–10.138 pure economic loss …. 10.124 reasonable foreseeability …. 10.131 relevant factors …. 10.131–10.145 road authorities …. 10.6 salient features approach …. 10.22 statutory exemptions …. 10.125 statutory power …. 10.126–10.130 types of damage …. 10.124 examples of authorities …. 10.120 intimidation …. 24.79 negligent misrepresentation …. 19.40 reasonable reliance …. 19.41 non-delegable duty …. 20.78 immigration detainees …. 20.79 operational decisions …. 10.135, 10.137 civil liability legislation …. 10.138 policy decisions, distinction …. 10.136 overview …. 10.120 policy decisions …. 10.120, 10.136, 10.137 civil liability legislation …. 10.138 operational decisions, distinction …. 10.136 road authorities …. 10.6, 10.146, 25.84 actual knowledge of risk …. 10.149, 10.150, 10.151 civil liability legislation …. 10.148, 10.149, 10.150, 10.151

‘highway rule’ …. 10.6, 10.146, 10.147, 10.148 public nuisance …. 25.84 reinstatement of rule …. 10.148

Public interest defence invasion of privacy …. 7.25

Public nuisance see also Private nuisance abatement …. 25.92, 25.102 trespass to land …. 6.38 animals …. 26.1, 26.40 straying onto highways …. 26.38 basis of liability …. 25.97 contributory negligence …. 25.101 damage requirement …. 25.77, 25.97, 25.100 damages …. 25.102 defences …. 25.91, 25.101 elements …. 25.77 historical background …. 25.1, 25.94 injunctions …. 25.102 interference with public right …. 25.77, 25.85, 25.95 class of the public …. 25.87 failure to discharge duty …. 25.86 measuring reasonableness …. 25.98 public highways …. 25.85 public right, meaning …. 25.85 substantial and unreasonable …. 25.88, 25.89 landlord and tenant …. 25.83

occupiers of land …. 25.82, 25.96 adjoining highways …. 25.89 onus of proof …. 25.90, 25.99 overview …. 18.1, 25.1, 25.77, 25.93 owners of land …. 25.82 public authorities …. 25.84 public highways …. 25.79, 25.85 occupier’s adjoining land …. 25.89 particular damage …. 25.79, 25.80 road authority’s liability …. 25.84 substantial inconvenience …. 25.80 remedies …. 25.92, 25.102 road authorities …. 25.84 title to sue …. 25.77, 25.95 Attorney-General …. 25.78 individuals …. 25.79 relator actions …. 25.79, 25.80 who can be sued …. 25.81 landlord and tenant …. 25.83 owners and occupiers …. 25.82 public authorities …. 25.84 road authorities …. 25.84

Public officials duty of care …. 9.123

Public safety entities immunity from liability …. 13.101

Pure economic loss consequential loss, distinction …. 10.78 defective products …. 9.120 defective structures …. 10.79, 10.107 Bryan v Maloney …. 10.108, 10.109 coherency of the law …. 10.115 control and vulnerability …. 10.110–10.114 indeterminate liability …. 10.118 pursuit of business interests …. 10.117 relationship between parties …. 10.116, 10.117 duty of care …. 10.2, 10.4, 10.77, 10.78, 19.1 categories of claims …. 10.79 defective structures …. 10.79, 10.107–10.118 exceptions to exclusion …. 10.79 exclusionary rule …. 10.77 negligent misrepresentation …. 10.79, 19.10, 19.11 professional services …. 9.94, 10.79, 10.97–10.106 public authorities …. 10.124 relational loss …. 10.79, 10.81–10.96 salient features approach …. 10.22 scope of duty …. 10.80 infringement of rights …. 1.10 insurance, and …. 1.57 legal recognition …. 12.4 negligent misrepresentation …. 10.79, 10.98, 19.1, 19.9, 19.18, 19.64 historical background …. 19.10, 19.11

reasonable foreseeability …. 19.58 overview …. 1.10, 10.2, 10.77, 19.1 professional services …. 9.94, 10.79, 10.97, 10.98 coherency …. 10.104–10.106 coincident interests …. 10.104, 10.105 control and vulnerability …. 10.102, 10.103 Hill v Van Erp …. 10.100 indeterminate liability …. 10.106 reluctance to extend scope …. 10.99 scope of duty …. 10.101 public authorities …. 10.124 relational loss …. 10.79, 10.81, 10.86 ascertainable class …. 10.87–10.90 Caltex decision …. 10.82, 10.83, 10.85 indeterminate liability …. 10.84, 10.86, 10.87 insurance …. 10.93 interference with pursuit of business …. 10.94–10.96 interruption of gas supply …. 10.90, 10.93 reasonably foreseeable …. 10.90 vertically integrated operations …. 10.88, 10.89 vulnerability and control …. 10.91–10.93

Pure psychiatric injury civil liability legislation …. 10.59 consequential psychiatric injury …. 10.46 foreseeability of harm …. 10.59 limits on liability …. 10.69, 10.70

recognised psychiatric illness …. 10.45 consequential psychiatric injury …. 10.46 development over time …. 10.58 direct perception …. 10.48, 10.52, 10.53 lack of direct perception …. 10.53, 10.54, 10.55, 10.56, 10.61 other jurisdictions …. 10.55 duty of care …. 10.2, 10.4, 10.40, 10.42, 10.72 civil liability legislation …. 10.45, 10.46, 10.59, 10.69, 10.70 coherency of law, and …. 10.71 current approach …. 10.42, 10.43 direct perception …. 10.48, 10.52–10.56 employers …. 9.35, 10.72–10.76 established duties …. 10.72–10.76 indeterminate liability …. 10.43, 10.67–10.70 normal fortitude …. 10.48, 10.49–10.51 reasonable foreseeability …. 10.30, 10.31, 10.41, 10.42, 10.43, 10.47–10.58, 10.60, 10.64, 10.76 recognised psychiatric injury …. 10.44–10.46 relationship between parties …. 10.43, 10.56, 10.61–10.63, 10.68 relevant factors …. 10.43, 10.60–10.71 sudden shock …. 10.48, 10.57, 10.58 vulnerability and control …. 10.43, 10.64–10.66 employer’s duty …. 9.35, 10.72, 10.76 bullying and harassment …. 10.76 legitimate business interests …. 10.75 reasonable foreseeability …. 10.76

scope of duty …. 9.35, 10.73, 10.74 indeterminate liability …. 10.43, 10.67 civil liability legislation …. 10.69, 10.70 relationship between parties …. 10.68 legal recognition …. 12.4 normal fortitude …. 10.48, 10.49 application of standard …. 10.50 awareness of special position …. 10.51 overview …. 10.2, 10.40 reasonable foreseeability …. 10.30, 10.31, 10.41, 10.42, 10.43, 10.47, 10.48, 10.60 awareness of special position …. 10.51 direct perception …. 10.48, 10.52–10.56 distance in space and time …. 10.54 employer’s duty …. 10.76 lack of direct perception …. 10.53, 10.54, 10.55 normal fortitude …. 10.48, 10.49–10.51 sudden shock …. 10.48, 10.57, 10.58 time for assessment …. 10.48 vulnerability …. 10.64 recognised psychiatric injury …. 10.44 civil liability legislation …. 10.45, 10.46 consequential psychiatric injury …. 10.46 relationship between parties …. 10.43, 10.56, 10.61, 10.62 assurances of safety …. 10.62 close and loving relationship …. 10.61, 10.63

indeterminacy, and …. 10.68 lack of direct perception …. 10.61 sudden shock …. 10.48, 10.57 Australian position …. 10.58

Q Qualified privilege see also Absolute privilege common law …. 23.34, 23.35, 23.47 application of principles …. 23.36 audience at large …. 23.44 categories of privilege …. 23.37 common interest …. 23.41–23.44 defence of reputation or property …. 23.43 gossip or curiosity …. 23.42 identification of occasion of privilege …. 23.36 legal or moral duty to publish …. 23.36, 23.39 reciprocity of duty …. 23.34, 23.38, 23.40, 23.41, 23.71, 23.73 response to attack …. 23.45, 23.46 defamation legislation …. 23.47, 23.49 court’s considerations …. 23.48 loss of privilege …. 23.50 defamation legislation …. 23.49, 23.51 improper motive …. 23.50, 23.51 malice …. 23.49, 23.50, 23.51, 23.52–23.57, 23.77 malice …. 23.50, 23.51, 23.52 defamation legislation …. 23.49, 23.51

lack of honest belief …. 23.53, 23.54, 23.55 political communication …. 23.77 vicarious liability …. 23.56, 23.57 overview …. 23.33, 23.71 policy behind defence …. 23.33 political communication …. 23.71, 23.72 government or political matters …. 23.75 implied freedom …. 23.72–23.77 loss of defence …. 23.77 malice …. 23.77 reasonable publication …. 23.76 requirements of defence …. 23.74 scope of protection …. 23.73 state constitutions …. 23.72 protected reports, and …. 23.58 social objects …. 23.58

Quare trespass …. 1.39 Queensland animals straying onto highways …. 26.35 assault and battery …. 3.37, 3.39 assault, definition …. 3.4, 3.19, 3.37, 3.38, 3.39, 3.40, 3.41, 6.32 common law, comparison …. 3.41–3.45 consent …. 3.42 defences …. 3.43–3.45, 6.32, 6.35 indirect force …. 3.41 provocation …. 3.43, 3.44, 6.35

self-defence …. 6.32 standard of proof …. 3.38 contributory negligence …. 6.61 personal injury damages …. 15.112, 15.152 court’s considerations …. 15.115 injury scale values …. 15.112, 15.114 rules of court …. 15.113 whole person impairment …. 15.114 wrongful death …. 16.5

Questions of fact appeals …. 8.24, 8.25 overview …. 8.23, 8.26, 11.88

Questions of law appeals …. 8.24 breach of duty …. 8.22 damage requirement …. 8.22 duty of care …. 8.22 overview …. 8.21, 8.26, 11.88

R Reasonable foreseeability breach of duty …. 8.7, 8.8, 8.14, 11.38, 11.39, 11.43 chain of events …. 11.41 criticisms of approach …. 11.43 hindsight …. 11.42 Ipp Report …. 8.15, 8.16, 11.38

knowledge of risk …. 11.39 mere recognition …. 11.40 prospective determination …. 11.42 remote or unlikely risk …. 11.39, 11.51 damage requirement …. 8.7, 8.8, 8.18, 12.61 deceit …. 19.83, 19.85 injurious falsehood …. 24.97 intervening acts …. 12.75, 12.77–12.80 negligent misrepresentation …. 19.58 private nuisance …. 25.53 remoteness of damage …. 8.8, 12.61–12.68 duty of care …. 8.7, 8.8, 8.12, 10.8, 10.30, 10.31 Anns approach …. 10.11 Caparo approach …. 10.15 considerations …. 10.31 negligent misrepresentation …. 19.19 proximity approach …. 10.12 public authorities …. 10.131 pure economic loss …. 10.90 pure psychiatric injury …. 10.30, 10.31, 10.41, 10.42, 10.43, 10.47–10.58, 10.60, 10.64, 10.76 ‘egg-shell skull’ rule …. 12.66 same damage requirement …. 12.67, 12.68 injurious falsehood …. 24.97 intervening acts …. 12.75, 12.77, 12.78 medical treatment …. 12.79, 12.80

meaning …. 12.65 negligent misrepresentation …. 19.19, 19.58 overview …. 8.7 private nuisance …. 25.53 pure psychiatric injury …. 10.30, 10.31, 10.41, 10.42, 10.43, 10.47, 10.48, 10.60 awareness of special position …. 10.51 direct perception …. 10.48, 10.52–10.56 distance in space and time …. 10.54 employer’s duty …. 10.76 lack of direct perception …. 10.53, 10.54, 10.55 normal fortitude …. 10.48, 10.49–10.51 sudden shock …. 10.48, 10.57, 10.58 time for assessment …. 10.48 vulnerability …. 10.64 remoteness of damage …. 8.8, 12.61, 12.64, 12.65 ‘egg-shell skull’ rule …. 12.66–12.68 events leading to damage …. 12.64 real risk of damage …. 12.62, 12.63 wrongful death …. 16.12, 16.15

Recreational activities see Sport and recreational activities Remedies account of profits …. 15.6 passing off …. 15.6, 24.31 conversion …. 5.71 damages …. 5.73–5.76, 5.83–5.90, 5.102

injunctions …. 5.98 self-help …. 5.72 damages see Damages declaratory judgments …. 15.3 advantages …. 15.4 disadvantages …. 15.5 jurisdiction …. 15.4 defamation …. 23.1, 23.104 damages …. 23.112–23.140 injunctions …. 1.19, 15.7, 23.105–23.111 detinue …. 5.71 damages …. 5.73–5.76, 5.84, 5.91–5.95, 5.100, 5.101, 5.102 injunctions …. 5.99–5.101 return of goods …. 5.84, 5.100, 5.101 self-help …. 5.72 equitable remedies …. 1.19, 15.2 account of profits …. 15.6 court’s discretion …. 15.2 declaratory judgments …. 15.3–15.5 private nuisance …. 25.71 injunctions see Injunctions injurious falsehood …. 24.98 injunctions …. 24.99 overview …. 1.19, 1.34, 15.1 passing off …. 24.30 account of profits …. 15.6, 24.31

exemplary damages …. 24.32 injunctions …. 24.33 private nuisance …. 25.67, 25.102 abatement …. 25.68 damages …. 25.71–25.75 equitable damages …. 25.71 injunctions …. 25.69, 25.70 public nuisance …. 25.92, 25.102 trespass to chattels …. 5.71 damages …. 5.73–5.76, 5.77–5.82, 5.102 injunctions …. 5.97, 15.7 self-help …. 5.72 trespass to land …. 4.48 damages …. 4.51–4.64, 4.70 encroachment …. 4.70 injunctions …. 4.65–4.68, 15.7 mesne profits …. 4.69 self-help …. 4.49, 4.50 statutory relief …. 4.70 trespass to person …. 3.75, 3.87 damages …. 3.75–3.84 injunctions …. 3.85, 15.11 limitation of actions …. 3.88 protection orders …. 3.86

Remoteness of damage overview …. 12.61

reasonable foreseeability …. 8.8, 12.61, 12.64 ‘egg-shell skull’ rule …. 12.66–12.68 events leading to damage …. 12.64 meaning …. 12.65 real risk of damage …. 12.62, 12.63 wrongful death …. 16.11, 16.13

Res ipsa loquitur adducing specific evidence …. 11.105 control of res …. 11.110 onus of proof …. 11.104, 11.106, 11.111 ordinary explanation for injury …. 11.108, 11.109 overview …. 11.102, 11.103 type of accident …. 11.107

Rescuers good Samaritans …. 13.99, 13.100 definition …. 13.99 overview …. 13.97 public safety entities …. 13.101 voluntary assumption of risk …. 13.98

Reversionary owners innominate actions …. 5.70 private nuisance …. 25.6

Road authorities duty of care …. 10.6, 10.146, 25.84 actual knowledge of risk …. 10.149, 10.150, 10.151 civil liability legislation …. 10.148, 10.149, 10.150, 10.151

‘highway rule’ …. 10.6, 10.146, 10.147, 10.148 reinstatement of rule …. 10.148 public nuisance …. 25.84

Road users see Motor vehicle drivers S Same-sex spouse …. 16.17 School authorities attendance requirement …. 9.69 child sexual abuse …. 20.40, 20.46 appropriate test …. 20.43, 20.44, 20.46 court’s considerations …. 20.46 judicial comments …. 20.45 non-delegable duty …. 20.81, 20.82 Royal Commission …. 20.40, 20.47, 20.81 uncertainty …. 20.41 vicarious liability …. 20.41, 20.42, 20.44, 20.45, 20.46, 20.47, 20.81 corporal punishment …. 6.54 disciplinary power …. 6.54 duty of care …. 8.9, 9.68, 9.69, 9.70 non-delegable duty …. 9.75, 20.64, 20.67, 20.81, 20.82 outside school hours …. 9.72 school bus drivers …. 9.73 scope of duty …. 9.71–9.74 standard of education …. 9.74 third parties …. 9.76

medical emergencies …. 11.29 non-delegable duty …. 9.75, 20.64, 20.67 child sexual abuse …. 20.81, 20.82 scope of duty …. 20.81, 20.82 vicarious liability …. 20.41 child sexual abuse …. 20.41, 20.42, 20.44, 20.45, 20.46, 20.47, 20.81

Scienter dangerous animals …. 26.1, 26.2 act of God defence …. 26.15 classification of animals …. 26.3 contributory negligence …. 26.14 controller’s liability …. 26.11 damage caused by lack of control …. 26.7 default of plaintiff …. 26.14 defences …. 26.12–26.15 domestic animals …. 26.3, 26.4–26.9 escape from control …. 26.7 ferae naturae …. 26.3, 26.8, 26.10, 26.11 harm and dangerous propensity …. 26.8 keeper’s liability …. 26.5, 26.9 knowledge of propensity …. 26.5, 26.6, 26.11 mansuetae naturae …. 26.3, 26.4–26.9 meaning …. 26.2 owner’s liability …. 26.9 statutory abolition …. 26.2 voluntary assumption of risk …. 26.12, 26.13

wild animals …. 26.3, 26.8, 26.10, 26.11 deceit …. 19.67, 19.72 agents …. 19.77 ambiguous statements …. 19.74 consciousness of damage …. 19.73 directors …. 19.76 initially true statements …. 19.75 mere carelessness …. 19.73

Seduction father’s action …. 17.24 husband’s actions …. 17.13, 17.15 abolition …. 17.16

Self-defence assault …. 6.32 battery …. 6.31, 6.32 degree of force …. 6.31 overview …. 6.30 statutory defence …. 6.32

Several tortfeasors see Concurrent tortfeasors Slander see Defamation Social security benefits personal injury damages, and …. 15.138 gratuitous care …. 15.91

Solatium wrongful death …. 16.30

Solicitors see also Barristers

absolute privilege …. 23.26 acting for both parties …. 9.105 contractual duty …. 9.107, 9.111 duty of care …. 9.103, 10.99 acting for both parties …. 9.105 advising clients …. 9.108, 9.109 commercial efficacy …. 9.109 legal profession legislation …. 9.118 opposing parties …. 9.104 scope of duty …. 9.107–9.109, 10.99, 10.101 solicitors conduct rules …. 9.116, 9.117 terms of retainer …. 9.107, 9.108 third parties …. 9.106, 10.99–10.106 warning of risks …. 9.108 immunity from suit …. 9.111, 9.112 legal profession legislation …. 9.118 legal professional privilege …. 23.26 misleading or deceptive conduct …. 19.101 overview …. 9.110 solicitors conduct rules …. 9.116, 9.117 standard of care …. 11.14 third party duty …. 9.106, 10.99 coherency …. 10.104–10.106 coincident interests …. 10.104, 10.105 control and vulnerability …. 10.102, 10.103 Hill v Van Erp …. 10.100

indeterminate liability …. 10.106 reluctance to extend scope …. 10.99 scope of duty …. 10.101

Sport and recreational activities battery …. 6.7 dangerous recreational activities …. 13.67, 13.70 definition …. 13.67 obvious risk …. 13.68, 13.69, 13.70 relevant principles …. 13.69 significant degree of risk …. 13.69 implied consent …. 6.7 volenti non fit injuria …. 13.66 dangerous recreational activities …. 13.67–13.70

Spouse see also Wrongful death damages …. 17.1 contributory negligence …. 17.20 husband’s action …. 17.10, 17.17–17.20 loss of consortium and servitium …. 16.31, 17.10, 17.11, 17.17–17.20 wrongful death …. 16.31 defamation …. 22.76 dependants, as …. 16.17 loss of consortium and servitium …. 17.10 abolition of husband’s actions …. 17.12, 17.16 damages …. 16.31, 17.10, 17.11, 17.17–17.20 enticement …. 17.13, 17.15, 17.16 harbouring of wife …. 17.14, 17.15, 17.16

husband’s actions …. 17.10, 17.12, 17.13–17.15, 17.16 seduction …. 17.13, 17.15, 17.16 wife’s position …. 17.11, 17.13

Stalking overview …. 3.33 statutory provisions …. 3.33 victims compensation …. 3.34

Standard of care breach of standard see Breach of duty civil liability legislation …. 11.8 contributory negligence …. 13.9, 13.12 emergencies …. 11.29 intoxication …. 11.27, 13.12 knowledge at time …. 11.18 medical emergencies …. 11.29 professionals …. 11.18, 11.72, 11.74–11.76, 13.82, 13.86 contributory negligence …. 13.9, 13.10 child plaintiffs …. 13.11 civil liability legislation …. 13.9, 13.12 emergencies …. 13.14 employees …. 13.15, 13.16 intoxication …. 13.12, 13.13 objective standard …. 13.8, 13.9 disabled persons …. 11.11, 11.12 emergencies …. 11.28 civil liability legislation …. 11.29

contributory negligence …. 13.14 medical emergencies …. 11.29 employers …. 11.79 contributory negligence …. 13.15, 13.16 inexperience …. 11.21, 11.25 knowledge of inexperience …. 11.22, 11.24, 11.25 motor vehicle drivers …. 1.57, 11.23, 11.24, 11.25 relationship between parties …. 11.22 intoxicated plaintiff …. 11.33 intoxication …. 11.26 civil liability legislation …. 11.27 contributory negligence …. 13.12, 13.13 joint illegal enterprise …. 13.73 lack of knowledge or skill …. 11.16 time of alleged breach …. 11.17, 11.18 manufacturers …. 9.122 medical emergencies …. 11.29 person in distress, definition …. 11.29 medical practitioners …. 11.15, 11.74 advice and warnings …. 11.74–11.77 Bolam principle …. 11.73 civil liability legislation …. 11.74–11.76 inexperience …. 11.21 knowledge at time …. 11.17 specialists …. 11.15 mental impairment …. 11.11, 11.13

minors …. 11.9 adult activities …. 11.10 age and experience …. 11.32 contributory negligence …. 13.11 plaintiff, as …. 11.31, 11.32 motor vehicle drivers …. 9.60, 11.25, 11.78 inexperience …. 1.57, 11.23, 11.24, 11.25 intoxication …. 11.26 negligent misrepresentation …. 19.54 professionals …. 19.55 objective test …. 11.4, 11.5 characteristics or circumstances …. 11.6, 11.7 civil liability legislation …. 11.8 relationship between parties …. 11.6 overview …. 11.2, 11.3 professionals …. 11.14, 11.71 advice or warnings …. 11.74–11.77, 13.86, 19.55 civil liability legislation …. 11.18, 11.72, 11.74–11.76, 13.82, 13.86 knowledge at time …. 11.18 negligent misrepresentation …. 19.55 professional practice standards …. 11.71–11.74, 13.81, 13.82, 13.86 specialists …. 11.15 question of law …. 11.4 reasonable person …. 11.5 characteristics or circumstances …. 11.6, 11.7 civil liability legislation …. 11.8

relationship between parties …. 11.6 skill or knowledge …. 11.14, 11.16 holding out as skilled …. 11.20 inexperience …. 11.21–11.25 laypersons performing skilled tasks …. 11.19 plaintiff’s skill or knowledge …. 11.30 specialised fields …. 11.15 time of alleged breach …. 11.17, 11.18 solicitors …. 11.14 statutory standards …. 11.78 non-binding material …. 11.79

Standard of proof assault and battery …. 3.38 causation …. 12.53 negligence …. 11.97 equally consistent evidence …. 11.98 factual evidence …. 11.99 inferences …. 11.98, 11.99 no case to answer …. 11.100, 11.101 res ipsa loquitur …. 11.102–11.111

Statutory authorities see Public authorities Statutory authority defences to trespass …. 6.48 compensation …. 6.51 medical treatment, compelling …. 6.50 negligent performance …. 6.50

onus of proof …. 6.49 false imprisonment …. 3.73 immigration detention …. 3.74 overview …. 6.48 trespass to land …. 4.23, 4.36, 6.48 defences to trespass …. 6.48, 6.50 onus of proof …. 6.49 police officers …. 4.37, 6.48, 6.50 wrongful acts …. 4.38, 4.39

Statutory duty see Public and statutory duties Strict legalism doctrine …. 1.58, 1.59 Strict liability animals …. 26.1 cattle trespass …. 26.24–26.27 dogs …. 26.16–26.23 scienter …. 26.2–26.15 breach of statutory duty …. 18.33 non-delegable duty …. 20.82, 20.83 overview …. 1.7 private nuisance …. 24.36, 24.38, 24.39

Structured settlements definition …. 15.37 overview …. 15.37, 15.38 tax advantages …. 15.38

Suicide intentional infliction of psychiatric injury …. 7.6

prison authorities’ duty …. 9.88

Superannuation contributions personal injury damages …. 15.82

Suppliers or retailers defective products …. 9.123, 9.129 duty of care …. 9.123

Survival of causes of action defamation …. 16.52, 22.81 wrongful death …. 16.51 collateral benefits …. 16.57 compensation to relatives, distinction …. 16.52 damages …. 16.53–16.57 dust-related diseases …. 16.55 exclusions from damages …. 16.54 exemplary damages …. 16.56 funeral costs …. 16.57 limitation period …. 16.58

T Taxation personal injury damages …. 15.150 interest …. 15.150 loss of earnings …. 15.85

Teachers see School authorities Telephone calls assault …. 3.22, 3.23

Tenants in common see also Landlord and tenant conversion …. 5.36 trespass to land …. 4.10 possession of land …. 4.11

Text messages assault …. 3.22

Third party insurance …. 1.54, 1.57, 9.58, 9.65 Torts absolute rights …. 1.13, 1.14 actions on the case see Actions on the case acts or omissions …. 1.4 fault …. 1.6 malice …. 1.9 misfeasance …. 1.4, 1.5 motive …. 1.8 nonfeasance …. 1.4 strict liability …. 1.7 classification of actions …. 2.1 contract, and …. 1.29 concurrent liability …. 1.29 differences between actions …. 1.30 criminal law, and …. 1.31 deterrence and punishment …. 1.34, 1.35 intention …. 1.33 onus of proof …. 1.32 damages see Damages

deterrence role …. 1.35, 1.36, 1.37 evolution see Evolution of torts law fault …. 1.6 infringement of rights …. 1.10, 1.11 absolute rights …. 1.13, 1.14 legally recognisable rights …. 1.11 qualified rights …. 1.13, 1.14, 1.15 recognition of new rights …. 1.12 types of rights …. 1.13 intention …. 1.6, 1.33 key features …. 1.3 meaning …. 1.1 other areas of law, and …. 1.28 contract …. 1.29, 1.30 criminal law …. 1.31–1.37 overview …. 1.1, 20.2 parties see Capacity to sue and be sued qualified rights …. 1.13, 1.14 proof of harm …. 1.15 range of rights …. 1.2 remedies …. 1.19, 1.34 trespass see Trespass

Trade Practice Act see Australian Consumer Law Trespass actions on the case, distinction …. 2.1, 2.5, 2.25, 2.28, 14.15 Australian position …. 2.7, 2.8, 2.9, 2.10, 2.11, 2.22–2.24, 2.28, 7.10

causal connection …. 2.2 diagram …. 2.11 direct interference …. 2.2, 2.7 fault …. 2.4, 2.6, 2.8 intention …. 2.3, 2.5, 2.10, 2.22, 2.24, 7.10 significance of distinction …. 2.22 United Kingdom …. 2.6 actionable per se …. 2.12, 2.19, 5.27 Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22, 2.28 criticisms of position …. 2.22–2.24 diagram …. 2.11 cattle trespass see Animals characteristics of actions …. 2.12 defences see Trespass defences direct interference …. 2.2, 2.7, 2.12, 2.13, 2.14, 2.23, 7.10 criticisms of Australian position …. 2.22–2.24 example …. 2.13 lack of care …. 2.18 evolution of action …. 1.39, 2.1, 2.5, 2.12 Australian position …. 2.7, 2.8, 2.9, 2.10, 2.22 direct interference …. 2.2, 2.7 fault …. 2.4, 2.6, 2.8 highway/non-highway distinction …. 2.3, 2.4, 2.6 intention …. 2.3, 2.5, 2.6, 2.10, 2.22 United Kingdom …. 2.6 fault …. 2.4, 2.6, 2.12, 2.15, 6.1, 20.1

lack of care …. 2.18 highway/non-highway distinction …. 2.3, 2.4 onus of proof …. 2.6, 2.7, 2.20 intention …. 2.3, 2.5, 2.6, 2.10, 2.16, 2.22, 2.23, 2.24 involuntariness, distinction …. 2.17 limitation of actions …. 14.15 nominal damages …. 15.14 onus of proof …. 2.12, 2.20, 2.23 highway/non-highway distinction …. 2.6, 2.7, 2.20 non-highway cases …. 2.23 overview …. 2.1, 2.12 privacy …. 7.22 quare trespass …. 1.39

Trespass ab initio …. 4.38, 4.39 Trespass by relation …. 4.7, 4.8 Trespass defences abatement of nuisance …. 6.38, 25.68 assault …. 3.43, 6.33, 6.37 provocation …. 3.43, 3.44, 6.35, 6.36 Queensland …. 3.43–3.45, 6.32, 6.35 self-defence …. 6.32 battery …. 3.43, 6.37 consent …. 3.13, 6.7, 6.13 provocation …. 3.43, 3.44, 6.35 Queensland …. 3.43–3.45, 6.32, 6.35 sports participants …. 6.7

self-defence …. 6.31, 6.32 consent …. 6.5, 6.8 battery …. 3.13, 6.7, 6.13 capacity to consent …. 6.13, 6.18–6.21, 6.24 criminal acts …. 6.9 duress …. 6.12 fraud …. 6.10, 6.11 implied consent …. 6.6, 6.7, 6.9, 6.13 medical treatment …. 6.10, 6.11, 6.14–6.26 minors …. 6.13, 6.19–6.21, 6.23 requirements for validity …. 6.8 revocation of consent …. 6.27–6.29 scope of consent …. 6.9 sports participants …. 6.7 voluntariness …. 6.10–6.12 contributory negligence …. 6.60 failure to take care …. 6.63 unintentional consequences …. 6.62 wrong, definition …. 6.61 Crown authority …. 6.59 defence of another …. 6.33 statutory defence …. 6.34 defence of property …. 6.37 disciplinary powers …. 6.52 parents …. 6.53 teachers …. 6.54

distress damage feasant …. 6.47 ex turpi causa oritur non actio …. 6.67 execution of process …. 6.57, 6.58 illegal acts …. 6.67 inevitable accident …. 6.2, 6.4 non-highway trespass …. 6.3 United Kingdom …. 6.2 insanity …. 6.65 involuntarism …. 6.66 judicial acts …. 6.55, 6.56 jus tertii …. 4.5, 6.45 loss of possession …. 6.46 mistake …. 5.26, 6.64 necessity …. 6.39 imminent threat …. 6.41, 6.43 medical necessity …. 6.44, 6.50 reasonable necessity …. 6.42 requirements …. 6.40 overview …. 6.1 provocation …. 6.35 statutory defence …. 6.35, 6.36 self-defence …. 6.30 degree of force …. 6.31 statutory defence …. 6.32 self-help …. 6.38 statutory authority …. 6.48

compensation …. 6.51 medical treatment, compelling …. 6.50 negligent performance …. 6.50 onus of proof …. 6.49

Trespass on the case see Actions on the case Trespass to chattels see also Conversion; Detinue actionable per se …. 5.27, 5.28 actual possession …. 5.5, 5.7 bailment exception …. 5.8, 5.9–5.13 exceptions …. 5.8–5.13 animals …. 5.17 bailment …. 5.8, 5.9, 5.13 bailment at will …. 5.11 interference by third parties …. 5.12 revocable bailment …. 5.11, 5.12 title to sue …. 5.10, 5.12 constructive possession …. 5.5, 5.7 bailment exception …. 5.8, 5.9–5.13 exceptions …. 5.8–5.13 damages …. 5.57, 5.73, 5.77 aggravated damages …. 5.76 cost of repairs …. 5.80 damaged or destroyed goods …. 5.75, 5.79 exemplary damages …. 5.76 foreseeable consequential loss …. 5.81 interest in goods …. 5.74

limitation of actions …. 5.102 non-economic loss …. 5.82 permanent deprivation of goods …. 5.78 sale without repair …. 5.80 defences see Trespass defences detinue, distinction …. 5.57 direct interference …. 5.6, 5.18, 5.19 handling without authority …. 5.21, 5.22 taking or asportation …. 5.20 unauthorised use …. 5.23 elements …. 5.6 evolution of law …. 1.39 fault …. 5.6, 5.24 awareness of infringement …. 5.25 mistaken belief …. 5.26 finders …. 5.14, 5.15 during employment …. 5.15 handling without authority …. 5.21, 5.22 injunctions …. 5.97, 15.7 intention …. 5.24 limitation of actions …. 5.102 commencement of period …. 5.103 mistake …. 5.26 motor vehicles …. 5.13 ‘joy-ride’ cases …. 5.50 security interests …. 5.17

overview …. 2.12, 5.1, 5.2, 5.6 personal property securities …. 5.17 possession of goods …. 5.5 actual possession …. 5.7, 5.8 bailment …. 5.8, 5.9–5.13 constructive possession …. 5.7, 5.8 finders …. 5.14, 5.15 repossession of goods …. 5.16 statutory provisions …. 5.16, 5.17 proof of damage …. 5.28 remedies …. 5.71 damages …. 5.73–5.76, 5.77–5.82, 5.102 injunctions …. 5.97, 15.7 self-help …. 5.72 taking or asportation …. 5.20 title to sue …. 5.6, 5.7 actual possession …. 5.7, 5.8 bailment …. 5.8, 5.9–5.13 constructive possession …. 5.7, 5.8 finders …. 5.14, 5.15 franchise owners …. 5.8 personal representatives …. 5.8 statutory provisions …. 5.16, 5.17 trustees …. 5.8 unauthorised use …. 5.23

Trespass to land

abatement of nuisance …. 6.38, 25.68 absolute rights …. 1.14 airspace …. 4.19, 4.20, 4.44 balancing of rights …. 4.19 civil liability legislation …. 4.21 naturally caused projections …. 4.22 transient interference …. 4.44, 4.45 animals …. 4.43, 26.1, 26.28 cattle trespass …. 26.25 authorised by law …. 4.23, 4.36, 6.48 negligent performance …. 6.50 onus of proof …. 6.49 police officers …. 4.37, 6.48, 6.50 wrongful acts …. 4.38, 4.39 continuing trespass …. 4.46 injunctions …. 4.67 limitation of actions …. 14.13 subsequent transferees …. 4.47 co-owners …. 4.10 possession of land …. 4.11 damages …. 4.51, 4.54, 4.70 aggravated damages …. 4.61, 4.63, 4.64 benefit from trespass …. 4.53 compensatory damages …. 4.54–4.60 consequential losses …. 4.59 cost of reinstatement …. 4.57, 4.58

exemplary damages …. 4.61, 4.62 material damage …. 4.55 mental trauma …. 4.64 no damage to land …. 4.52 nominal damages …. 4.52 severance of chattels …. 4.60 value of land …. 4.56, 4.57, 4.58 defences see Trespass defences direct interference …. 1.14, 4.15 easements …. 4.12 elements …. 4.3 encroachment …. 4.70 evolution of action …. 1.39, 4.1 express licence …. 4.23, 4.24 different purpose …. 4.25 mixed purposes …. 4.26 revocation or withdrawal …. 4.31 fault …. 4.3, 4.40 implied licence …. 4.23, 4.27, 6.6, 6.9 bona fide entrants …. 4.29 legitimate purposes …. 4.29, 4.30 police …. 4.28, 6.28 revocation or withdrawal …. 4.31, 4.33, 6.28 injunctions …. 1.19, 4.65, 4.66, 15.7 continuing trespass …. 4.67 past and complete trespass …. 4.68

intention …. 4.40 interference with land …. 4.2, 4.14, 4.16 actionable interference …. 4.3, 4.14 airspace …. 4.19–4.22, 4.44, 4.45 animals …. 4.43 continuing trespass …. 4.46, 4.47 direct interference …. 1.14, 4.15 examples …. 4.41–4.47 land, concept …. 4.16–4.22 placing or leaving objects on land …. 4.42 subsoil …. 4.17, 4.18 unauthorised interference …. 4.23–4.39 land, concept …. 4.16 airspace …. 4.19–4.22, 4.44, 4.45 subsoil …. 4.17, 4.18 lessors …. 4.6 trespass by relation …. 4.7, 4.8 licensees …. 4.9 limitation of actions …. 4.71, 14.13 mesne profits …. 4.69 overview …. 1.14, 2.12, 4.1, 4.2 placing or leaving objects on land …. 4.42 police officers …. 4.28, 6.48 authorised by law …. 4.37, 6.48, 6.50 revocation of consent …. 4.35, 6.28 possession of land …. 1.14, 4.4

co-owners …. 4.11 lawfulness of possession …. 4.5 lessors …. 4.6, 4.7 licensees …. 4.9 purchasers under sale contract …. 4.13 squatters …. 4.5 tenants …. 4.6, 4.7 trespass by relation …. 4.7, 4.8 profits a prendre …. 4.12 proof of damage …. 4.2 purchasers under sale contract …. 4.13 remedies …. 4.48 damages …. 4.51–4.64, 4.70 encroachment …. 4.70 injunctions …. 4.65–4.68, 15.7 mesne profits …. 4.69 self-help …. 4.49, 4.50 statutory relief …. 4.70 revocation or withdrawal of licence …. 4.31, 4.38, 4.41, 6.28 communication …. 4.32 implied licence …. 4.33, 6.28 notice …. 4.32, 4.33 police offices …. 4.35, 6.28 prior communication …. 4.33 reasonable time to leave …. 4.34, 6.28 self-help …. 4.49, 4.50

reasonable force …. 4.50 statutory relief …. 4.70 subsoil …. 4.17, 4.18 mining rights …. 4.18 tenants …. 4.6 trespass by relation …. 4.7, 4.8 title to sue …. 4.3, 4.4, 4.5 co-owners …. 4.10, 4.11 easements …. 4.12 lessors …. 4.6, 4.7, 4.8 licensees …. 4.9 profits a prendre …. 4.12 purchasers under sale contract …. 4.13 tenants …. 4.6, 4.7, 4.8 trespass by relation …. 4.7, 4.8 trespass ab initio …. 4.38, 4.39 trespass by relation …. 4.7, 4.8 unauthorised interference …. 4.23, 4.41 authorised by law …. 4.36, 4.37, 4.38, 4.39 examples …. 4.41–4.47 express licence …. 4.24–4.26 implied licence …. 4.27–4.30 revocation or withdrawal of licence …. 4.31–4.35, 4.38, 4.41 trespass ab initio …. 4.38, 4.39

Trespass to person see also Assault; Battery; False imprisonment animals …. 26.28

available actions …. 3.2 child sexual abuse …. 14.43 damages …. 3.75, 3.77, 3.84 aggravated damages …. 3.79, 3.80–3.82, 3.84 civil liability legislation …. 3.78 compensatory damages …. 3.77, 3.78, 3.84 exemplary damages …. 3.79, 3.83, 3.84 no loss suffered …. 3.76 nominal damages …. 3.76 defences see Trespass defences evolution of law …. 1.39 injunctions …. 3.85, 15.11 limitation of actions …. 3.88 child sexual abuse …. 14.43 overview …. 2.12, 3.1, 3.2, 7.1 remedies …. 3.75, 3.87 damages …. 3.75–3.84 injunctions …. 3.85, 15.11 limitation of actions …. 3.88 protection orders …. 3.86

Trespass to personal property constructive possession …. 5.5 contributory negligence …. 6.63 conversion see Conversion defences …. 6.45 distress damage feasant …. 6.47

jus tertii …. 6.45 loss of possession …. 6.46 detinue see Detinue excluded goods …. 5.3 real property …. 5.4 fixtures …. 5.4 intangible property …. 5.3 overview …. 5.1 personal property …. 5.2 meaning …. 5.2 possession of goods …. 5.5 reversionary owners …. 5.70 rights to possession …. 5.5 trespass to chattels see Trespass to chattels

Trover …. 5.29 U Unborn child see also Wrongful birth medical professionals’ duty …. 9.98 motor vehicle driver’s duty …. 9.59

Unfair competition see Passing off Unlawful interference with trade or business interests see Interference with business interests V Vicarious liability see also Non-delegable duty

breach of statutory duty …. 18.23 fault, and …. 20.2 historical background …. 20.5 indemnities …. 20.85 joint tortfeasors …. 21.5 malice …. 23.56, 23.57 fair comment defence …. 23.90 motor vehicle owners …. 20.57, 20.58 hire care firms …. 20.59 legislation …. 20.60 rebuttal of presumption …. 20.59 New Zealand …. 20.17 overview …. 20.2, 20.3, 20.4, 20.85 partnerships …. 20.4 policy grounds supporting …. 20.5 principal and agent …. 20.50 agent, meaning …. 20.51 agent or contractor …. 20.56 express authorisation …. 20.54 holding out …. 20.55 motor vehicle owners …. 20.57–20.60 ostensible authority …. 20.52, 20.55 scope of authority …. 20.52, 20.53 relationship between parties …. 20.4 statutory liability …. 20.4 voluntary assumption of risk, and …. 13.57

Vicarious liability of employers ad hoc service …. 20.25 assault by employee …. 20.37 borrowed employees …. 20.23 onus of transfer …. 20.23, 20.24 transfer of control …. 20.24 breach of statutory duty …. 18.23, 18.38 Canada …. 20.17, 20.49 child sexual abuse …. 20.40, 20.46 appropriate test …. 20.43, 20.44, 20.46 court’s considerations …. 20.46 judicial comments …. 20.45 Royal Commission …. 20.40, 20.47, 20.81 schools …. 20.41, 20.42, 20.44, 20.45, 20.46, 20.47, 20.81 uncertainty …. 20.41 clergy …. 20.26 Commonwealth …. 20.19 police …. 20.20 public servants …. 20.19, 20.21, 20.22 course of employment …. 20.7, 20.27, 20.28 express employer prohibitions …. 20.35, 20.36 frolic doctrine …. 20.30–20.32 intentional torts …. 20.37–20.49 linking of acts outside employment …. 20.29 question of fact …. 20.28 wrongful act authorised by employer …. 20.33

wrongful mode …. 20.33, 20.34 defence forces …. 20.19 employee actions …. 9.29 employee or contractor …. 20.8, 20.9, 20.17 control test …. 20.11, 20.13, 20.24 hospital staff …. 20.18 multi-facet test …. 20.14–20.17 organisation test …. 20.12, 20.13 relevant factors …. 20.16, 20.17 terms describing relationship …. 20.9 tests to determine …. 20.10–20.17 establishing an action …. 20.7 express employer prohibitions …. 20.35, 20.36 fraud of employee …. 20.37 frolic doctrine …. 20.30, 20.32 extent of deviation …. 20.31 purpose of deviation …. 20.31 gratuitous service …. 20.25 historical background …. 20.6 hospital staff …. 20.18 indemnities …. 20.85, 20.86, 21.25, 21.27 Lister v Romford Ice …. 20.86, 20.87, 21.25, 21.27 statutory modification …. 20.88, 21.26 intentional torts …. 20.37 appropriate test …. 20.43, 20.44 assault by employee …. 20.37

child sexual abuse …. 20.40–20.47 fraud of employee …. 20.37 misappropriated funds …. 20.39 motive of employee …. 20.38 ostensible authority …. 20.39 other jurisdictions …. 20.49 scope of employment …. 20.37 security guards …. 20.48 joint tortfeasors …. 21.5 overview …. 20.6 police …. 20.20, 20.88 statutory reform …. 20.20, 20.88 public servants …. 20.19, 20.21 independent discretion …. 20.21, 20.22 reform proposals …. 20.22 security guards …. 20.48 United Kingdom …. 20.17, 20.49

Victims of crime compensation legislation …. 1.48, 3.34

Volenti non fit injuria animals …. 26.33 cattle trespass …. 26.27 dangerous animals …. 26.12, 26.13 dogs …. 26.22 avoidance of risk …. 13.56 belief that risk would eventuate …. 13.52

breach of statutory duty …. 18.38 dangerous recreational activities …. 13.67, 13.70 definition …. 13.67 obvious risk …. 13.68, 13.69, 13.70 relevant principles …. 13.69 significant degree of risk …. 13.69 employer’s duty to employees …. 9.28, 13.49 establishing defence …. 13.50 full knowledge of risk …. 13.50, 13.51, 13.52 avoidance of risk …. 13.56 extent of risk …. 13.55 mere knowledge …. 13.51, 13.52 nature of risk …. 13.55 obvious risk …. 13.53, 13.54 subjective test …. 13.51 historical background …. 13.49 implied acceptance …. 13.64 motor vehicle accidents …. 13.65 sport and recreational activities …. 13.66–13.70 intoxication …. 13.61 defendant intoxicated …. 13.63 onus of proof …. 13.62 plaintiff intoxicated …. 13.62 motor vehicle accidents …. 13.65 defective vehicles …. 13.65 implied acceptance …. 13.65

inexperienced drivers …. 13.65 intoxication …. 13.61, 13.62, 13.63 nuisance …. 25.101 obvious risk …. 13.53, 13.62 dangerous recreational activities …. 13.68, 13.69, 13.70 knowledge and experience of plaintiff …. 13.54 onus of proof …. 13.53 statutory presumption …. 13.53 overview …. 13.1, 13.48, 25.101 rescuers …. 13.98 sport and recreational activities …. 13.66 dangerous recreational activities …. 13.67–13.70 voluntary acceptance of risk …. 13.50, 13.57, 13.58 age of plaintiff …. 13.58 characteristics of plaintiff …. 13.58 implied acceptance …. 13.64–13.70 intoxication …. 13.61–13.63 legal and physical risk …. 13.57 other risk causing injury …. 13.60 vicarious liability …. 13.57

Voluntary assumption of risk see Volenti non fit injuria Volunteers immunity from liability …. 13.102, 13.103 overview …. 13.102

W

Workers’ compensation see also Employer’s duty to employees; Occupational health and safety advantages …. 9.55 damages, and …. 15.137 exemplary damages …. 15.22 excluded injuries …. 9.55 historical development …. 1.46, 9.28, 9.53 national scheme proposal …. 9.56 overview …. 1.46, 9.28, 9.29, 9.30, 9.54 periodic payments …. 15.37 standardisation of benefits …. 9.54 statutory schemes …. 9.54, 9.56 advantages …. 9.55

Wrongful birth medical professionals’ duty …. 9.99 mitigation of damage …. 15.41 overview …. 12.13 recognition of damage …. 12.13

Wrongful conception damages …. 8.6, 12.14, 15.28, 15.41 overview …. 12.14 recognition of damage …. 12.14

Wrongful death assessment of damages …. 16.32 contributory negligence …. 16.44 deceased’s estate …. 16.39–16.41

extent of dependency …. 16.34 future events …. 16.37 indemnity principle …. 16.35–16.37 interest …. 16.47 jointly owned assets …. 16.41 matrimonial home …. 16.40 motor vehicle accidents …. 16.46 new relationships …. 16.38 other actions …. 16.43 pecuniary support from deceased …. 16.33 period of dependency …. 16.34 reasonable expectation of support …. 16.36 relevant factors …. 16.33, 16.34 specific payments …. 16.42 statutory limitations …. 16.45, 16.46 survival of causes of action …. 16.53–16.57 breach of contract …. 16.1, 16.4 causation …. 16.11 ‘egg-shell skull’ rule …. 16.14 reasonable foreseeability …. 16.12, 16.15 remoteness of damage …. 16.11, 16.13 child deceased …. 16.21 common law …. 16.1 compensation to relatives …. 16.2, 16.3, 16.26 assessment of damages …. 16.32–16.46 causation …. 16.11–16.15

dependants …. 16.16–16.19 dependency requirement …. 16.20–16.23 establishing an action …. 16.6 executor or administrator …. 16.24, 16.25 interest …. 16.47 legislation …. 16.3 limitation periods …. 16.48–16.50 non-pecuniary loss …. 16.28–16.31 pecuniary loss …. 16.27 Queensland …. 16.5 right of action …. 16.7–16.10 solatium …. 16.30 statutory limitations …. 16.45, 16.46 survival of causes of action, distinction …. 16.52 types of losses …. 16.26 wrongful act or neglect, meaning …. 16.4 contributory negligence …. 16.44 dependants …. 16.16, 16.19 children …. 16.18 de facto spouse …. 16.17 parents …. 16.18 persons in loco parentis …. 16.18 same-sex spouse …. 16.17 spouse …. 16.17 dependency requirement …. 16.20 child deceased …. 16.21

familial relationships …. 16.23 reasonable expectation of benefit …. 16.22 ‘egg-shell skull’ rule …. 16.14 executor or administrator …. 16.24, 16.25 establishing an action …. 16.6 historical background …. 16.1, 16.3 action personalis moritur cum persona …. 16.1 limitation of actions …. 16.48, 16.50 dust-related conditions …. 16.49 survival of actions …. 16.58 non-pecuniary loss …. 16.28 gratuitous services …. 16.29 Griffiths v Kerkemeyer …. 16.29 loss of consortium …. 16.31 loss of services …. 16.28, 16.29 solatium …. 16.30 overview …. 16.1, 16.2 reasonable foreseeability …. 16.12, 16.15 remoteness of damage …. 16.11, 16.13 right of action …. 16.7, 16.24 disentitling events …. 16.8 executor or administrator …. 16.25 Northern Territory …. 16.9 procedural requirements …. 16.10 survival of causes of action …. 16.51, 16.52 collateral benefits …. 16.57

compensation to relatives, distinction …. 16.52 damages …. 16.53–16.57 dust-related diseases …. 16.55 exclusions from damages …. 16.54 exemplary damages …. 16.56 funeral costs …. 16.57 legislation …. 16.51 limitation period …. 16.58

Wrongful life overview …. 12.11 recognition of damage …. 12.12